LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Andrew O. Guglielmi of New York State Department of Environmental Conservation Speaker 8: 2
assessment process in order to expedite restoration, the opportunity to bash a PRP in public or in
court, and the ability to achieve their best case scenario in litigation.
PRPs also have to recognize what they give up when they enter cooperative assessments
with Trustees. Although PRPs would never formally waive their right to litigate on liability and
defenses, by entering into a cooperative agreement, and by agreeing to pay certain past and
future assessment costs, PRPs have acknowledged that they have some amount of NRD liability
at a given site. Subsequently arguing liability and defenses within the cooperative assessment
process serves no positive purpose. If PRPs wants to argue liability and defenses they should not
enter a cooperative process and wait for litigation.
Trustees have to surrender their desire to get the moon and PRPs have to admit they are
not getting out of the process without doing or paying anything. Just like any marriage, you have
to compromise and you don’t always get what you want.
II.
The Courtship – Starting a Cooperative Assessment Process
The mechanism that most often commences a cooperative assessment process is not
romantic. Normally, for CERCLA hazardous waste sites, it is the Trustees’ mailing of a notice of
intent to perform an NRD assessment, which typically encloses the Trustees’ Preassessment
Screen Determination that an assessment at a site is warranted. See 43 C.F.R. Part 11. For oil
spills subject to OPA, the coordination with responsible parties is envisioned from the onset of
an oil spill that has NRD implications. In fact, if Trustees elect to follow OPA regulations, they
are required to invite PRPs to participate in the assessment. See 15 C.F.R. § 990.14.
There are countless types of cooperative assessments and countless ways in which they
can be structured, from a formal cooperative assessment agreement which covers such topics as
funding, confidentiality, information sharing, and tolling provisions, to a letter or stipulation
Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM
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