LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Angus Macbeth of Sidley Austin LLP Speaker 24b: 2
CONSIDERATIONS REGARDING THE SETTLEMENT OF NRD CLAIMS
A. Cooperative Assessments
A cooperative assessment is one where the Trustees and the PRPs are jointly involved in
conducting one or more phases of the NRD assessment process, including injury assessment,
restoration planning, and implementation. The degree of cooperation can vary, from simply
sharing assessment plans and data, to a fully cooperative process where the Trustees and the
PRPs jointly design and conduct studies and work together to develop and implement a
restoration program. The DOI, Bureau of Indian Affairs, is presently engaged in cooperative
assessments at several sites involving injury to tribal resources.
The OPA NRD regulations require that PRPs be given the opportunity to participate in the
damage assessment process and, when appropriate, to jointly conduct a coordinated and open
damage assessment with the Trustees. Unlike CERCLA, cooperative assessments under OPA are
now commonplace. However, the extent of cooperation and the roles of the Trustees and the
PRPs vary by incident. And, while the rules encourage cooperation, they do not provide any
specific guidelines on how to develop a cooperative assessment process. The absence of such
guidance led NOAA’ s DARRP to develop a Cooperative Assessment Process (“CAP”) web site,
which serves as a clearinghouse of information for cooperative assessment frameworks,
approaches, and tools. 1
The CAP was developed to promote the coordinated efforts of industry interests and
governments (federal, state, and tribal) to facilitate the restoration of natural resources and their
services injured or lost by hazardous substance releases and oil spills. The goal of the CAP is to
optimize NRD assessment and restoration opportunities in the response or cleanup phase. The
incentive to PRPs to participate in the CAP is a greater voice and more control over the timing of
restoration actions, with reduced NRD assessment costs and reduced risk of litigation. The
Trustees’ incentive is the expedited restoration of injured natural resources and associated
services, and receiving PRP funding up front or through timely reimbursement. As a general
rule, PRPs and Trustees agreeing to engage in cooperative assessment execute a Funding and
Participation Agreement, under which the PRP agrees to pay all, or some percentage, of the
Trustees’ assessment costs.
One CAP approach under OPA NRD assessment is the formation of Joint Assessment Teams
(“JATs”) in various parts of the country. The West Coast JAT, an ad hoc group of
representatives from various state and federal trustee agencies, spill response organizations, and
representatives from the oil industry formed in 1996, meets three times a year to discuss a variety
of topics related to conducting cooperative assessments including collection of ephemeral data,
injury assessment, NRDA case histories, recent developments in NRDA, and available resources.
They have published recommendations for conducting cooperative NRD assessment, which
include, among other things, (1) factors to consider early during the response phase of an
incident to facilitate cooperation and expedite the damage assessment process; (2) suggestions
1 http://www.darrp.noaa.gov/partner/cap/index.html
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM