LSI 2010 NRD Santa Fe final conference binder 072110.pdf

David J. Lazerwitz of Farella Braun + Martel LLP Speaker 6: 11
New Mexico v. General Electric, et al.
• Tenth Circuit Decision:
• State could not demonstrate injury or damages:
• State’s public trust interest is in providing groundwater for
beneficial use and there was no evidence that anyone had
incurred any lost use of groundwater -- no interest in aquifer itself
• Remediation met EPA MCLs which were adopted by New Mexico
• State’s damages for alleged inadequate remediation of
groundwater seeks monetary compensation in violation of
CERCLA’s restoration, replacement or acquistion goals and
preempted by federal law (or, alternatively, violates 9613(h))
• Common law claims that survive:
• Claims seeking restoration/replacement/acquisition
damages
• Claims filed where proprietary ownership interest
• Interim loss of use damages, while permissible, require proof of
actual loss of services
467 F.3d 1223 (10th Cir. 2006)
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Quapaw Tribe v. Blue Tee Corp.
• State common law claims
• Tribe amended complaint to drop CERCLA claims
following adverse 2008 ruling regarding timing of action in
light of EPA remedy selection
• Qualification on conflict preemption defense
• “CERCLA does not completely preempt state law claims,
but CERCLA impacts the availability of natural resource
damages under state law”
• Allowed common law causes of action to proceed:
• Tribe tailored relief to be co-extensive with CERCLA
• No direct interference with EPA remedial selection/order
• Damages both before and after December 11, 1980
• Potential to factually develop conflict argument
2009 WL 455260 (N. D. Okla. Feb. 23, 2009)
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Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM