LSI 2010 NRD Santa Fe final conference binder 072110.pdf

David J. Lazerwitz of Farella Braun + Martel LLP Speaker 6: 6
Damages Considerations
• Quantifying damages
• Lost value of the resource: difference between
baseline and present condition
• Lost interim use during remediation
• Assessment costs
• Limitation on the use of damages
• Recovery must be used only to restore, replace or
acquire the equivalents of the damaged resources
(9607(f)(1))
• No punitive damages (Ohio v. DOI)
• Open question on attorneys fees
• What about resource-related projects such as
education facilities, community centers, parking and
access areas?
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Statute of Limitations
• CERCLA Section 9613(g)
• Non-NPL sites: 3 years from the later of:
• The date of discovery of loss and its connection with the
release; or
• The date of promulgation of CERCLA regulations (3/20/87)
• Discovery rule: fact question based on trustee’s knowledge
• NPL sites: 3 years from completion of the remedy
(excluding operation and maintenance activities)
• What constitutes “completion” of the remedy?
• Final installation of equipment, approval/permitting or
actual completion of remedial activities?
• Expanding original NPL site beyond initial boundary to
encompass former non-NPL areas (US v. Asarco)
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Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM