LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 28
In Castaic Lake Water Agency v. Whittaker Corp., 107 the district court held that where
perchlorate contamination originated at one site and allegedly migrated to the wells owned by
plaintiff water providers at a different site, plaintiffs can satisfy their burden of production with
respect to CERCLA causation by: (1) identifying perchlorate at their site; (2) identifying
perchlorate at defendant’s site; and, (3) providing “evidence of a plausible migration pathway by
which the contaminant could have traveled from the defendant’s facility to the plaintiff’s site.” 108
Where the plaintiffs satisfy this burden, the burden then shifts to the defendant to offer evidence
“disproving causation.” 109
In Coeur D’Alene Tribe v. Asarco Inc., the district court adopted a “contributing factor”
causation test for the recovery of NRD. 110
That is, where hazardous waste from multiple
defendants has commingled, the plaintiff trustee has the burden of proving that each defendant’s
release is a more than a de minimis, “contributing factor” to the natural resource injuries alleged
by the trustee.
One last causation burden exists for trustees in the context of assessing NRD. The DOI’s
NRD assessment (“NRDA”) regulations 111 require that trustees determine the baseline condition
of the injured resource and then compare that baseline with the injured status of the resource to
quantify injury. “Baseline” is defined under the DOI NRDA regulations as “the condition or
conditions that would have existed at the assessment area had the discharge of oil or release
107 272 F. Supp. 2d 1053 (C.D. Cal. 2003).
108 Id. at 1066.
109 Id.
110 280 F. Supp. 2d at 1114.
111 43 C.F.R. § 11 (2005).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM