Presenting a live 90-minute webinar with interactive Q&A Natural Resource Damages: The Assessment Battle Strategies for Valuing and Contesting NRD Injury and Damages WEDNESDAY, AUGUST 8, 2012 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: John Carlucci, U.S. Department of the Interior , Washington, D.C. Brian D. Israel, Partner, Arnold & Porter , Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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NRDAR Assessment Injury and Damages John Carlucci U.S. Department of the Interior JOHN.CARLUCCI@sol.doi.gov Strafford Webinar August 8, 2012
6 NRDAR The Natural Resource Damage Assessment and Restoration (NRDAR) process manifests a mix of common, statutory, and administrative law concepts.
7 Common Law Concepts in Natural Resource Damages Government agencies acting as trustees on behalf of the public is derived from common law concepts such as: • Public Nuisance • Public Trust Doctrine • Parens Patriae
8 Statutory Authority for Natural Resource Damage Claims • CERCLA (1980) creates a comprehensive scheme for responding to hazardous substance releases, and authorizes federal, state, and tribal governments to seek damages for natural resource injury caused by such releases. • OPA (1990) authorizes a substantially similar liability scheme for discharges of oil into navigable waters.
9 Administrative Law Concepts in Natural Resource Damages • Section 301 of CERCLA requires the federal government to issue regulations outlining “the best available procedures” for assessing natural resource damages. • DOI was designated by the President to undertake promulgation of the CERCLA NRDA Regulations. • CERCLA does not require trustees to follow the regulations to bring a claim, but assessments done in accordance with the regulations are entitled to a rebuttable presumption in a legal or administrative proceeding.
10 Administrative Law Concepts in Natural Resource Damages The CERCLA NRDAR Regulations provide for two types of assessments: • Type A Procedures that estimate damages with minimal field analysis, by means of a computer model or other simplified method. • Type B Procedures for conducting site specific procedures when simplified techniques are not appropriate.
11 Administrative Law Concepts in Natural Resource Damages • NOAA is responsible for developing NRDA Regulations under OPA. • Section 1006 of OPA provides that an assessment in accordance with the OPA NRDA Regulations is entitled to a rebuttable presumption in legal or administrative proceedings.
12 Interplay of Courts, Statutes, and Regulations in NRDA When agencies like DOI and NOAA issue regulations pursuant to a statute, potentially affected members of the public can go to court to challenge the validity of the regulation (usually arguing that the agency exceeded its authority or misinterpreted what Congress wanted it to do when it passed the statute.
13 Interplay of Courts, Statutes, and Regulations in NRDA • In addition to interpreting statutes and regulations, Courts are also the forum for any legal claim for damages that follows an assessment. • Ruling principles in these cases are sometimes governed wholly by common law, or by a mixture with statutory and regulatory law.
14 Touchstones for NRDA Claims General Liability: • Release or discharges of hazardous substances or oil; • By a responsible party; • From a vessel or facility; • Resulting in injury (or for OPA, the threat of injury) to natural resources.
15 Touchstones for NRDA Claims Pre-assessment Activities: • Described in CERCL NRDA Rules as a “rapid review of readily available information” to determine whether to proceed with an assessment. • Both CERCLA and OPA discourage ranging data collection until there is a determination to proceed.
16 Touchstones for NRDA Claims Assessment Planning: • Injury Determination • Injury Quantification • Legal Causation • Damage Determination/Restoration Planning Both CERCLA and OPA describe notice of intent to proceed, and an invitation to PRPs to”participate”.
17 Touchstones for NRDA Claims Injury Determination: • CERCLA “ambient” injuries, “acceptance criteria”, and 18 specific biological conditions (43 CFR 11.62). • CERCLA “catch - all” “measurable adverse change in the chemical or physical quality or the viability of a natural resource.” (43 CFR 11.14) • OPA “including but not limited to adverse changes in survival, growth, and reproduction; health, physiology,…ecological process and functions…and public services.”
18 Touchstones for NRDA Claims Injury Quantification: • Spatial and temporal extent (straightforward); • “Service” reduction (not always straightforward) “Service” analysis involves identifying/quantifying the functional impairments-to people or to other resources-that result from the determination injuries. Functional impairments are measured from the “baseline” condition that the resources would have existed in had the release of hazardous substances or oil not occurred.
19 Touchstones for NRDA Claims Legal Causation: • A pathway from the released substance to the resource(s) assessed. • Evidentiary strength of association of injury with the released substance (temporal relationship, consistency, biological plausibility, dose- response relationship, consideration of alternative explanations,etc.)
20 Touchstones for NRDA Claims Legal Causation (cont…): • Burdens of Proof for Common Law Civil Claims (including admissibility of evidence); • Burdens of Proof for CERCLA and OPA NRDA claims (i.e., the rebuttable presumption and shifting burdens of production and persuasion.
21 Touchstones for NRDA Claims Legal Causation (cont…): • Legal Defenses: • Losses already cleared by and EIS or federal permit; • Release and damages occurred “wholly before” the enactment of CERCLA (Dec.1980); • Per release damage caps; • Statute of Limitations (“remedial action” vs. “discovery” sites);
22 Touchstones for NRDA Claims Legal Causation (cont…): • Legal Defenses (cont…): Divisibility from other causes (vs. strict, joint & several liability); Trusteeship(i.e., jurisdiction); Adherence to NRDA Regulations, etc.; Encourage attorneys to analyze these types of issues as soon as feasible.
23 Touchstones for NRDA Claims Damage Determination: (Measure of damages common to both CERCLA and OPA) • The cost of restoring, (rehabilitating), replacing, or acquiring the equivalent of injured resources (baseline or primary restoration); • The reasonable costs of assessment.
24 Touchstones for NRDA Claims Damage Determination (cont…): • CERCLA NRDA Rule damages can include the value of services lost to the public pending restoration (compensable value [all reliably calculated values?]) • OPA NRDA Rule damages include the cost of actions taken to compensate for diminution in resource value pending restoration (compensatory restoration).
25 Touchstones for NRDA Claims Damage Determination (cont…): • CERCLA Rule-Restoration and Compensation Determination Plan to evaluate restoration alternatives and compensable values (See also, Preliminary Estimate of Damages); • OPA Rule-Scaling and Restoration Planning.
26 Post NRDA Assessment • Litigation (written demand, Notice of intent to file suit, etc.) • Settlement Negotiations • Restoration Implementation • Report of Assessment (CERCLA), Administrative Record (OPA), etc.
27 Litigation • Trial Advocacy • Discovery • Privileges
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