LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Angus Macbeth of Sidley Austin LLP Speaker 24b: 3
for developing a coordinated NRD assessment response organization; and (3) suggestions for
developing an interim cooperative assessment agreement. 2
B. Integration of Remediation and NRD Activities at Department of Energy
Facilities
In 1996, the GAO estimated likely NRD at Department of Energy sites to be within the range of
$2.8 billion to $13 billion, although it found that damages within the range of $2.3 billion to
$20.5 billion were possible. 3 In addition to being a PRP at a site, however, the DOE is
frequently the “lead agency” for remediation and a natural resource trustee.
As lead agency, DOE will perform or oversee the response action. As natural resource trustee,
DOE will be responsible, along with any co-trustees, for determining whether and to what extent
natural resources under its trusteeship have been damaged. Other trusteeship interests on a DOE
site may include other federal agencies which are trustees for particular natural resources; in such
cases, DOE will be the primary federal trustee for resources on its facilities. At most DOE sites,
state and tribal authorities will be the most important non-DOE trustees.
In 1997, the DOE developed a policy for integrating natural resource concerns into response
actions. 4 The 1997 Policy, which provides guidance on fulfilling DOE’s multiple roles,
“requires heads of field organizations and program and project managers to consider natural
resource risk issues and, when appropriate, seek to resolve them with the other natural resource
trustees, such as States and Tribes.” DOE has sought to establish site-specific trustee councils at
sites such as Hanford in Washington and Oak Ridge in Tennessee, which work to integrate
natural resources concerns into remedial decision making and restoration planning.
The most recent example of DOE’s integration of natural resource concerns into response actions
is at Hanford, where two state and three tribal trustees filed suit against it, seeking past and
future response costs, NRD, and a declaratory judgment of liability for natural resource injury
assessment costs. 5 Shortly after briefing closed on DOE’s motion to dismiss the trustees’ claims
for declaratory judgment of liability for assessment costs, but before argument was heard, DOE
announced that it would be integrating a phased NRD assessment into its ongoing cleanup
actions at the site. 6
C. Using Environmental Conflict Resolution in NRD Cases
2 West Coast Joint Assessment Team, Recommendations for Conducting Cooperative Natural Resource Damage
Assessment (April 2007), available at
http://www.darrp.noaa.gov/partner/cap/pdf/2007/02004%20JAT%20Recommendations%20Final.pdf.
3 GAO, Natural Resources Damage at DOE (1996, GAOLRCED-96-206R), at 2. In 1997, DOE provided its own
report concerning its potential NRD liability. While noting a large range of uncertainty, it estimated liability to be in
the range of $1.4 to $2.5 billion. See Richard B. Stewart, Memorandum Re: Legal and Related Policy Issues for
Integrating Remediation and NRD Strategies at DOE Sites (6/21/05) at 21.
4 DOE, “Policy on the Integration of Natural Resource Concerns into Response Actions” (1997) (“1997 Policy”).
5 USDC, Eastern District of Washington Case No. CY-02-3105-LRS.
6 DOE Press Release, “DOE to Conduct Natural Resource Damage Assessment Process at Hanford,” (4/3/07),
available at http://www.hanford.gov/communication/reporter/attachmentsiRL/2007/RL-07-0006.pdf.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM