LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 38
CERCLA].” 141
Thus, if NRD occurred on or before the December 11, 1980 date, a defendant is
not liable under CERCLA. 142
“[W]here damages are readily divisible [between pre and postenactment
damages], the sovereigns cannot recover for such damages incurred prior to the
enactment . . . In cases where the natural resource damages are not divisible and the damages or
releases that caused the damages continue post-enactment, the sovereigns can recover for such
non-divisible damages in their entirety.” 143
In Coeur d’Alene Tribe v. Asarco, Inc., the United States and the Coeur d’Alene Tribe
sought to recover NRD associated with releases of mine wastes. 144
The defendants argued that
no hazardous substance releases had occurred after CERCLA’s enactment in 1980, and no post
enactment damages had occurred because environmental conditions in the Coeur d’Alene Basin
had continuously improved. 145
The trustees argued that the contaminants continued to be
released and re-released, and maintained that the critical date, for purposes of CERCLA, is when
an injury is quantified. 146
The court ruled that CERCLA’s “wholly before” limitation did not bar the plaintiffs from
recovery. 147
The court found that “passive migration caused by leaching from variations in low
and high water is a post-enactment release under CERCLA.” 148 Furthermore, the court concluded
141 42 U.S.C. § 9607(f)(1).
142 United States v. Reilly Tar and Chemical Corp., 546 F. Supp. 1100, 1120 (D. Minn. 1982).
143 In re Acushnet River and New Bedford Harbor Proceeding, 716 F. Supp. 676, 685-686 (D. Mass. 1989).
144 280 F. Supp. 2d at 1114.
145 Id.
146 Id.
147 Id. at 1113.
148 Id.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM