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Reforming CERCLA's Natural Resource Damage Provisions: A Challenge to the 105th Congress from the Clinton Administration

March 1997

Citation: ELR 10121

Author: Leslie M. Turner

The Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA) authorizes designated trustees1 to recover damages2 for injury to natural resources3 caused by a hazardous substance release.4 Under its delegated authority, the U.S. Department of the Interior (DOI) has promulgated regulations governing the assessment of natural resource damages (NRDs).5 The regulatory scheme, however, has posed tremendous difficulties for all interested parties. Litigators from both the government and the private sector, members of the regulated community, environmental organizations, and the designated trustees have wrestled with the interpretation and implementation of the NRD assessment regulations.

Long delays, false starts, and internal inconsistencies regarding appropriate regulatory procedures have plagued the DOI's rulemaking activities.6 Potentially responsible parties (PRPs) question the fairness of the administrative process, because the existing regulations give the trustees absolute discretion to use all, some, or none of the published NRD regulatory procedures.7 Criticism has also been leveled at the trustees for failing to use the most cost-effective restoration methods.8 Finally, there is widespread perception within industry, the environmental community, and among some lawmakers that the NRD program is a disincentive to the cleanup and the reuse of hazardous sites.9 This perception is based on the continued liability of a PRP for NRD claims after funds already have been expended to address the cleanup of the same site.10

Leslie M. Turner is Of Counsel at Washington, D.C.'s Akin, Gump, Strauss, Hauer & Feld, L.L.P., specializing in international trade/business development in Pacific Rim nations and international environmental law and policy. In January 1993, President Clinton appointed Ms. Turner Assistant Secretary for Territorial and International Affairs, U.S. Department of the Interior. From October 1995 until January 1997, Ms. Turner served as Counselor to the Secretary of the Interior and Director, Office of Intergovernmental Affairs.