LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Andrew O. Guglielmi of New York State Department of Environmental Conservation Speaker 8: 4
Trustees and PRPs both bring baggage into cooperative assessments. This baggage is,
unsurprisingly, almost never disclosed and rarely apparent to the other side before the
cooperative agreement process starts.
Trustees’ usual baggage is a lack of internal coordination and agreement on various
aspects of an NRD assessment. Federal Trustees, State Trustees, and Native American tribes are
going to have different priorities based on their trusteeship interests in particular resources and
services. Trustees are often worried about PRPs discovering these differences, exploiting them,
and driving a wedge between the Trustees. The result is that Trustees are hesitant to discuss
issues openly with PRPs in a cooperative assessment context, unless they have come to
consensus ahead of time. This can lead to a discussion of watered-down and superficial issues
that fails to help the assessment to substantively progress.
In my opinion, Trustees should not be afraid to discuss issues openly with PRPs in a
cooperative assessment process. Trustees might spend hours of hard work and negotiation to
come to consensus internally on something a PRP might have no interest in supporting.
Alternatively, open discussions with PRPs might yield creative ideas that the Trustees would not
consider in their internal deliberations.
PRPs also bring baggage into the cooperative assessment process. Depending on the
sophistication of the PRP, they might have little knowledge or experience with NRD. They will
then need to look to outside counsel and outside consultants for advice on to approach an NRD
claim. Unless outside counsel and consultants are experienced NRD practitioners and committed
to the benefits of the cooperative assessment process, there is a risk that they will want to show
their clients that they can challenge Trustees. This will obviously disturb the cooperative process.
Larger, more experienced PRPs might have in-house counsel and managers familiar with NRD,
Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM
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