The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), the Clean Water Act, the Oil Pollution Act, and similar state statutes impose liability not only for cleanup costs, but also for natural resource damages (NRD). The NRD claims that can be brought by federal and state trustee agencies and tribal governments differ greatly from the removal and remedial action claims brought by EPA and state response agencies. Beveridge & Diamond, P.C. has been in the forefront of efforts to help clients resolve potential NRD liability, with a particular focus on contaminated sediment sites in rivers, bays, and estuaries containing substances such as PCBs, heavy metals, PAHs, and dioxins/furans. We also help our clients with NRD liabilities arising from contaminated groundwater, wetlands, and soils. Sediment and groundwater sites typically raise complex legal, technical, economic, and political issues associated with both remediation and NRD. Our focus is on helping clients plan and execute cost-effective strategies that address these issues in an integrated fashion, while being attentive to the needs of their ongoing businesses.
Federal natural resource damages claims have been most prevalent with respect to rivers, lakes, estuaries, harbors and other sites involving sediments that contain persistent hazardous substances like polychlorinated biphenyls (PCBs) and other chlorinated compounds, polyaromatic hydrocarbons (PAHs), and heavy metals. State natural resource damages claims have tended to focus on contaminated groundwater. We have helped clients develop strategies for rebutting inflated damages claims and for dealing with both cooperative and uncooperative federal, state, and tribal natural resource trustees. We also work closely with technical experts to understand the ramifications of alleged natural resource injuries and the strengths and weaknesses of the methodologies available for quantifying and valuing damages claims.
We have grappled with most of the important legal issues that arise in natural resource damages cases. These include the scope of federal, state, and tribal trusteeship; how to handle the competing claims of federal and state trustees concerning the same resources; relevant statutes of limitation for CERCLA and Clean Water Act claims; and issues of causation, “baseline,” and various other defenses. But legal issues are often dominated by larger strategic issues, such as whether to cooperate with any trustees, attempt early settlement, await (or promote) the development of critical technical or economic information, or lay the foundation for future litigation.
We have helped clients negotiate and resolve potential liability for NRD at many sites, including the Lower Fox River and Bay of Green Bay in Wisconsin, the Malone Service Company Site in Texas, Lake Hartwell in South Carolina and Georgia, the Grand Calumet River in Indiana, the Saginaw River and Bay in Michigan, the Crab Orchard National Wildlife Refuge in Illinois, and Waukegan Harbor in Illinois. We are continuing to assist clients concerning several other major river and lake systems in the Northeast, Midwest, and South, including the St. Lawrence River in northern New York, the Tittabawassee River in Michigan, and the Calcasieu Estuary in Louisiana. Beveridge & Diamond also represented a major oil company in litigation with the NJDEP regarding a claim for natural resource damages arising from groundwater contamination. The Firm also has closely followed the rulemakings of the Department of the Interior (DOI) and the National Oceanic and Atmospheric Administration (NOAA) concerning natural resource damages assessment, and represented two clients in Kennecott Utah Copper Corporation v. U.S. Department of the Interior , 88 F.3d 1191 (D.C. Cir. 1996), which involved a challenge to the DOI natural resource damage assessment rules. We also periodically work with the natural resource damages coalition that is seeking CERCLA reform in Congress and that continues to pursue improvements within the federal trustee agencies.