LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 29
under investigation not occurred.” 112
While the trustee has the burden of determining baseline
under the NRDA regulations, defendants should ensure that the trustee is apprised of all
appropriate conditions or factors impacting the resource other than the release of the hazardous
substances at issue.
These cases demonstrate a key issue with regard to causation-that ultimately, causation is
not difficult to prove. Furthermore, even if the contamination is mingled between multiple PRPs,
it will not be difficult to show causation sufficient to prevail in a suit for NRD. These cases also
show the potential interplay of substantive law and case management issues. For example, it
should be sufficient to prove wrongful misconduct and some causation so as to establish the
liability of a responsible party and thereby shift the cost of a comprehensive NRDA to the
wrongdoer as opposed to the trustee.
D. INJURY
A natural resource injury is “any adverse change or impact of a discharge on a natural
resource or impairment of natural resource services, whether direct or indirect, long-term or
short-term, and include the partial or complete destruction or loss of the natural resource.” 113
Clarity with regard to assertion of the type of injury to a natural resource is an essential
component of bringing a successful claim for NRD. If a plaintiff does not clearly and
specifically define and quantify the nature of the injury, there is a significant risk that a claim for
NRD will fail. In State of New Mexico v. General Electric Company, the plaintiffs were
prevented from recovering NRD due to their failure to clearly and accurately set forth the nature
112 43 C.F.R. § 11.14(e) (2005)(emphasis added).
113 Kanner, supra note 14, at 98.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM