1. www.klng.com Kenneth S. Komoroski Natural Resource Damages: Claimants, Damages & Liability Protection

2. 2 What is a Natural Resource? Section 101(16) of CERCLA provides as follows: “land, fish, wildlife, biota, air, water, ground water, 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...” Purely private property is excluded from the definition of “natural resources”

3. 3 Who Can Assert NRD Claims? Claims must be brought by a natural resource “trustee” Who can be a trustee? Federal Agencies, such as: Department of Interior; Department of Commerce; Department of Agriculture; Department of Defense; Department of Energy; and Various other federal agencies

4. 4 Who Can Assert NRD Claims? States State governments can designate trustees Tribal Tribal officials may appoint a trustee Grey Area: Municipalities There may be more than one trustee involved in a NRD action

5. 5 Who Cannot Assert NRD Claims? Private parties Citizen groups

6. 6 Potential Damages NRD damages include: The cost of restoration, rehabilitation, replacement and/or acquisition of the equivalent of the injured natural resources and the services those sources provide; and The value to the public of the loss of services of the injured natural resources. 43 CFR § 11.80.

7. 7 Liability Protection Some states expressly provide for liability protection from state NRD claims E.g., Michigan “[a] person who is provided an affirmative determination under this section is not liable for a claim for... natural resources damages...” MCLS § 324.20192a(5) Other states also provide similar protection Delaware, Iowa, Maine, Massachusetts, Minnesota, Montana, New Jersey, and New York

8. 8 Liability Protection Most states are in a grey area, in that they provide for broad relief, but do not specifically mention NRD claims E.g., Rhode Island Provides for a release from liability for “costs or damages associated with a release of hazardous materials and/or petroleum...” R.I. Gen. Laws § 23-1.14-7.

9. 9 Liability Protection One state expressly exempts NRD from liability protection E.g., Kentucky “[t]he covenant not to sue shall not apply to... any cabinet action for damages for injury to, destruction of, or loss of natural resources...” KRS § 224.01-526(7)(j).

10. 10 Liability Protection Even where states provide liability protection from state action, they do not necessarily provide liability protection from federal claims or claims based on federal law E.g., Idaho “Except as provided under federal law or agreed to by a federal governmental entity, a covenant not to sue issued under this section shall not release a person from liability to the federal government for claims based on federal law.” Idaho Code § 39- 7207. Other states also have similar provisions Indiana, Mississippi, New Mexico, Ohio, and Oregon