Companies that are, or have been, owners or operators of vessels or facilities disposing or transporting hazardous waste or whose operations have, or may in the future, result in a release of oil, should be aware of the potential liability for natural resource damages under a variety of federal, state and local laws. Liability for natural resource damages may arise at sites involving historical contamination, instantaneous oil spills or accidents involving the release(s) of oil or hazardous substances. Is your company at risk?
Liability for natural resource damages (NRDs) was first introduced in 1980 under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund”). Under CERCLA and other federal laws (the Clean Water Act and the Oil Pollution Act) and environmental laws in more than 40 states, federal, state, local and tribal officials (natural resource “trustees”) may file claims on behalf of the public to recover damages from responsible parties to restore injured, destroyed or lost natural resources (land, fish, wildlife, biota, air, water, groundwater, drinking water supplies and resources). A recent example is the Deepwater Horizon Incident in the Gulf of Mexico.
Liability for NRDs, authorized by statute to be in addition to site remediation or “clean up” requirements, may include the costs to restore and/or replace the resource, compensation for lost uses (“services”) of the resource and trustee assessment costs. Two sets of federal regulations provide the overall construct for performing natural resource damage assessments (NRDAs), both involving sequential phases of assessment and restoration. The overall goal of the NRDA process is to restore the services provided by injured natural resources to its baseline through restoration or replacement of the resource, or acquisition of an equivalent resource.
Increasingly, resolution of natural resource related liabilities has invoked broader considerations, including the issues of carbon sequestration and environmental justice, as well as new opportunities, including optimization of natural capital, coordination with clean up activities, ecosystem service management, and enhancement of natural resources owned by individual companies.
For further information, see www.NRDARPracticeExchange.com.
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