LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 40
In Montana v. Atlantic Richfield Company, Judge Haddon reached the opposite
conclusion on CERCLA’s “wholly before” limitation. 157
Montana brought an NRD action
against Atlantic Richfield seeking to recover restoration costs at “upland areas” in the Clark Fork
River Basin. 158
The court rejected the theory that damages do not occur until expenses are
incurred or costs are quantified, finding that such a theory is “unpersuasive” and would render
the “wholly before” limitation in the statute meaningless. 159
Instead, the court held that
“damages accrue or occur, including restoration costs, when the underlying injury occurs.” 160
The court barred the state of Montana’s claim for restoration cost damages because such
damages occurred wholly before December 11, 1980.
3. NRD and Site Remediation are the Same
A defendant may also attempt to defend against its liability by taking advantage of the
fact that most judges do not possess a significant degree of sophistication with regard to
environmental issues. In the event a judge is not familiar with this highly specialized area of law,
a defendant may attempt to blur the distinction between costs associated with site remediation
and the recovery of NRD.
There is, however, a clear distinction between the goals of
remediation and those for the recovery of NRD. With regard to site remediation, a PRP is
responsible for the costs associated with the remediation of the pollution. NRD is designed to
compensate the public for the damage to its natural resources and the loss of use resulting from
the resource’s contamination.
157 Montana v. Atlantic Richfield Co., 266 F. Supp. 2d 1238 (D. Mont. 2003).
158 Id. at 1239.
159 Id. at 1243-1244.
160 Id. at 1242.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM