LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Andrew O. Guglielmi of New York State Department of Environmental Conservation Speaker 8: 5
and these individuals might be more committed to a cooperative assessment process that moves
towards settlement, based on potential savings in litigation and consultant fees.
If PRPs sign on to a cooperative process, they should truly intend to cooperate and not
use the process as a means to get early discovery. PRPs also should refrain from a cooperative
assessment process if they are going to inherently distrust the Trustees and their valuation
methodologies. Clearly, Trustees and PRPs are going to disagree about the scope of injury at
sites and will disagree as to the best methodologies to employ to value these injuries. However,
PRPs need to believe that Trustees are not out to single them out or get them to pay more than
the restoration of resources and their services are worth.
The way that both Trustees and PRPs deal with their baggage, distrust, and insecurity is
to attempt to wield full control over the cooperative assessment process. This is actually
detrimental to the process and could preclude settlement of the claim. Everyone should accept
that Trustees are statutorily responsible for the assessment and restoration of injured resources
and services. Trustees have the final say over every aspect of the assessment. It is in the best
interests for PRPs to acknowledge this fact, both internally and publicly. In the recent Gulf Oil
Spill Disaster, the public and media have become increasingly angry over the perception that BP
is controlling the clean up and response efforts. This makes government agencies look weak and
creates even more public distrust of BP. Neither party benefits from even the appearance that the
PRP is controlling the process.
If Trustees have the final say over the assessment and both parties recognize that fact,
then Trustees should be willing to let PRPs take the lead on certain aspects of the assessment,
such as PRPs performing their own studies with their own consultants. Some Trustees are
hesitant to do this, because of a fear that the PRPs and their consultants will “spin” the results to
Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM
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