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20 ELR 10134 | Environmental Law Reporter | copyright © 1990 | All rights reserved Natural Resource Damages: Recovery Under State Law Compared With Federal LawsLloyd W. Landreth and Kevin M. WardEditors' Summary: Since its enactment in 1980, lawyers have paid attention mostly to the response authorities and cost recovery sections of the Comprehensive Environmental Response, Compensation, and Liability Act. But there is growing awareness of the power and flexibility of CERCLA's natural resource damage sections, which provide for separate recovery even after cleanup is finished. As with the federal CERCLA, many state "mini-CERCLAs" also have natural resource damage sections, and new awareness of the doctrine's reach could make these a regular enforcement tool. In this Article, the authors outline the scope of the federal natural resource doctrine and detail the doctrine in current state statutes. A chart lists natural resource damage laws in all 50 states. The authors then describe laws in five specific states and suggest procedures for states to develop better statutes on natural resource damages. Lloyd W. Landreth first became involved in natural resource damage issues as a fisheries biologist for state and federal agencies. Since graduating from the University of Colorado School of Law, he has worked exclusively in the areas of environmental and natural resource law. Mr. Landreth currently serves as Environmental Counsel for PRC Environmental Management, Inc. in Denver, Colorado. Kevin M. Ward is a graduate of Vanderbilt University School of Law, and he formerly served as Assistant Attorney General for the State of Colorado in the CERCLA Litigation Section. Mr. Ward currently practices environmental law and litigation with Cogswell and Eggleston, P.C. in Denver, Colorado. After the enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) in 1980,1 the primary focus of the federal government and most state governments has been government response actions against public health threats and follow-up cost recovery lawsuits to reimburse the government for its expenses. By now, the contours of this CERCLA liability system are well established: strict liability, a presumption of joint and several liability, broad categories of "potentially responsible parties," and an expansive definition of what government response costs are recoverable.2 More recently, government enforcers have paid increased attention to another component of CERCLA liability: natural resource damage liability. In general, natural resource damages may be recovered for those residual injures not addressed by a cleanup. For example, injuries to natural resources may remain if the remedial action results in a partial cleanup, leaving some contamination in the environment. Or natural resource injuries may occur if the cleanup removes the contamination but leaves the ecosystem unrestored: for example, wildlife habitats destroyed, animal populations lowered, or plant life and diversity reduced. Sometimes, the "residual" natural resource damages can dwarf the original cost recovery. This is especially true now that the District of Columbia Circuit Court of Appeals has ruled that the preferred method to measure natural resource damages is the actual cost of physically restoring or replacing the injured resources.3 In general, the same liberal liability rules that apply to CERCLA cost recovery actions apply to actions for natural resource damages, and the D.C. Circuit's ruling is only the latest step in a 15-year expansion of federal liability for natural resource damages.4 Indeed, some very large natural resource damage amounts are now being recovered. For [20 ELR 10135] example, in November 1989, Shell Oil Company paid over $ 11 million for natural resource damages caused by an April 1988 oil spill in San Francisco Bay.5 Even as attention thus increases on federal liability for natural resource damages, another source of liability grows in importance as well. In many cases, liability under state law concerns defendants more than their federal liability. State laws establishing liability for natural resource damages are surprisingly diverse. This Article summarizes CERCLA's natural resource damage liability provisions and reviews existing state laws establishing liability for natural resource damages. First, the Article offers a primer on CERCLA natural resource damages; next, it presents in table form citations to relevant state laws; finally, it reviews representative state laws and recommends more state attention to this important area. Primer on CERCLA Natural Resources Damages Under CERCLA § 107, responsible parties are liable for "damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release."6 "Natural resources" is broadly defined as, "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States . . . , any State or local government, any foreign government, [or] any Indian tribe . . ."7 Thus, CERCLA does not limit recovery of natural resource damages to only those resources owned by a government. "Managed by, held in trust by, appertaining to, or otherwise controlled by" refers to other types of governmental interests in privately owned property. A substantial degree of government regulation, management, or other form of control over privately owned natural resources may cause CERCLA to apply. For example, a state law requiring owners of tideland property to permit public access could bring the land within the ambit of CERCLA.8 When natural resources are injured, "liability shall be to the United States Government and to any State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State and to any Indian Tribe." Damages recovered must be made available to restore, replace, or acquire equivalent natural resources.9 CERCLA does not create a private right of recovery for natural resource or other damages.10 Although the definition of natural resources includes resources belonging to local government, the natural resource damage liability provision of CERCLA does not explicitly provide for liability to local government. "State" is defined, however, to include the several states of the United States, the District of Columbia, and other territories and possessions.11 Noting the statutory construction rule that the word "includes" is usually a term of enlargement, not limitation, two courts have held that local governments are "states" for purposes of recovering natural resource damages.12 The courts observed that it would be anomalous to define natural resources as including those belonging to or controlled by local governments, and then exclude cities and towns from those that could assert a CERCLA claim to recover damages for injuries to those natural resources. CERCLA provides that "[t]he President, or the authorized representative of any State, shall act on behalf of the public as trustee of such natural resources to recover for such damages."13 The President is authorized to designate federal officials to act as public trustees for natural resources under federal trusteeship, and the governor of each state is required to designate state officials to act on behalf of the public as trustees for natural resources subject to the state's trusteeship.14 Most states have designated the directors of their departments of health, environmental protection, natural resources, or other similar executive departments as trustees. CERCLA required regulations for assessing natural resource damages, including standard procedures for simplified assessments in routine cases and alternative procedures for conducting assessments in complex cases.15 A damage assessment in accordance with the regulations enjoys a rebuttable presumption as to its validity.16 After much delay, the "type A" regulations, which provide simplified assessment procedures, and the "type B" regulations, which provide alternative procedures, were promulgated by the Department of the Interior in 1986 and 1987.17 The type A regulations for simplified assessments [20 ELR 10136] currently apply only to coastal and marine environments.18 Both types of regulations must be reviewed and revised as appropriate every two years.19 In 1989, the District of Columbia Circuit Court of Appeals struck down portions of the regulations on two key issues.20 First, the court overruled the Interior Department's decision to limit damages to the lesser of either the cost of restoring or replacing the injured resource or the lost use value of the resource. The court concluded that Congress expressed a preference that injured resources be restored, and except in unusual situations where the disadvantages or expenses would be extreme, the restoration cost is the appropriate measure of damages. Second, the court rejected the Interior Department's "hierarchy of damage assessment methodologies" because the regulations established a strong presumption in favor of market price and appraisal methodologies. The court observed that natural resources have values that cannot be fully measured in the marketplace. The Interior Department has announced that it intends to revise the regulations to comply with the court's rulings.21 In addition to the limited defenses to CERCLA liability for response costs, several other defenses are available for natural resource damage claims. [] Pre-CERCLA Damages. CERCLA provides that there is no liability for natural resource damages "where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before [December 11, 1980]," CERCLA's effective date.22 Some courts have interpreted this exclusion to apply only when both the release and the resulting damages occurred wholly before December 11, 1980. Under this reading of the statute, the exclusion precludes liability only if all releases ended before that date, and only if no damages were suffered on or after that date as a result of a release.23 However, one court held that where damages are divisible between those caused by preenactment releases and those caused by postenactment releases, only natural resource damages incurred postenactment can be recovered. The court rejected the trustees' argument that since the releases of hazardous substances continued after enactment and thus did not occur "wholly" before December 11, 1980, both pre- and postenactment damages may be recovered. Only when the damages are not divisible between pre- and postenactment releases and the damages or releases continue postenactment can the trustees recover the damages in their entirety.24 [] Permitted Releases and Damages. CERCLA provides two defenses tonatural resource damage claims if the release or damage is authorized by permit. The first provides that there is no natural resource damage liability if the responsible party demonstrates: that the damages to natural resources complained of were specifically identified as an irreversible and irretrievable commitment of natural resources in an environmental impact statement, or other comparable environmental analysis, and the decision to grant a permit or license authorizes such commitment of natural resources, and the facility or project was otherwise operating within the terms of its permit or license.25 Thus, to take advantage of this affirmative defense, a responsible party must prove (1) a specific identification of an irreversible and irretrievable natural resources commitment, (2) in an environmental impact statement or similar analysis, (3) the authorization of the commitment in a permit or license, and (4) compliance with the permit or license. This exemption only excuses responsibility for damages that will result from a newly permitted project. It does not relieve one of liability for damages arising out of past activities.26 The second permit-related defense provides that "damages resulting from a federally permitted release" are recoverable under existing law in lieu of CERCLA.27 A "federally permitted release" is defined to include releases permitted under other federal environmental laws, as well as state-law-authorized oil-and-gas-well-related injections.28 Moreover, regulations proposed by EPA implementing the federally permitted release defense would also generally provide that releases authorized by state permits issued under state programs authorized pursuant to several identified federal statutes qualify as federally permitted releases.29 This federally permitted release exclusion provides a defense only to releases that are in compliance with the terms of the permit. Damages may be recovered for releases that were not expressly permitted, that exceeded the permit limitation, or that occurred at a time when there was not a permit.30 [] Time Limitations. CERCLA specifies period in which natural resource damage actions must be commenced. For those facilities listed on the National Priorities List, for identified federal facilities, and for other vessels or facilities at which a CERCLA remedial action is scheduled, a natural [20 ELR 10137] resource damage action must be commenced within three years after completion of the remedial action. Otherwise, a CERCLA natural resource damage action must be brought within three years from the date of discovery of the loss and its connection with the release in question, or the date on which the Interior Department promulgated the natural resource damage assessment regulations, whichever is later.31 It is not clear what date the InteriorDepartment promulgated its natural resource damage regulations. Some were published on August 1, 1986,32 some on March 20, 1987,33 and key portions of both are currently being revised to comply with the D.C. Circuit opinion.34 The amount of natural resource damages recoverable is subject to specified dollar limitations. The limit depends on the origin of the release. In general, liability for each release from a facility is capped at $ 50 million for natural resource damages.35 If the release was the result of willful misconduct or willful negligence, or was caused by a violation of applicable safety, construction, or operating standards or regulations, the cap is lifted, and the responsible party can be liable for the full amount of damages.36 Although CERCLA § 111 suggests that the Superfund can be used to pay claims by public trustees for natural resource damages and for the cost of assessing the damages, in enacting the Superfund Amendments and Reauthorization Act of 1986 (SARA), Congress amended the Internal Revenue Code to preclude natural resource damages as an authorized use of the Fund.37 Claims for Natural Resource Injury Under State Law Despite CERCLA's comprehensive natural resource damage provisions, each state has the right to pass its own laws for recovery of natural resource damages. In fact, CERCLA specifically provides that it does not preempt any state from imposing additional liability or requirements regarding the release of hazardous substances.38 Additionally, CERCLA provides that it does not affect obligations under state law, including common law, with respect to the release of hazardous substances.39 To assess state law on natural resource damages, a review of the statutes of each of the 50 states was conducted. The result of this research appears on the following table. The information presented in Column 1 of the table represents a survey of the state's environmental statutes for CERCLA-type laws pertaining to the release of a hazardous substance. If a comprehensive CERCLA-type statute could not be located, a review of statutes similar to the Resource Conservation and Recovery Act (RCRA)40 was conducted. Other state statutes for laws pertaining to environmental pollution of specific natural resources, such as air and water, were then selectively surveyed. However, the main focus was on state statutes that address the harm caused to natural resources by the release of a statutorily defined hazardous substance. Column 2 of the table presents a more focused listing of the state statutes on releases of a hazardous substance causing natural resource damages. To develop this list, criteria similar to those applied in Column 1 were used. Initially, a review of the CERCLA-type statutes was conducted to determine if any specific section addresses injury to natural resources. If no statutes directly on point were located, a selective review of other state environmental laws was conducted to determine if related statues could be used as authority to bring a state claim for natural resource damages. If neither type of statute was found, a review of general water pollution or similar statutes that might authorize a claim for natural resource damages was conducted. The table does have some limits, however. In general, this table is current only through the 1989 legislative session. Moreover, a state may rely on law not directly analogous to CERCLA to make claims for natural resource damages; depending on how creatively a state is using such statutes, it may not have been identified using the above methodology. In general, there was no review of regulations promulgated under the direction of state statutes.
Selected State Natural Resource Injury Statutes The state laws studied showed a wide diversity in sophistication of legal structure and in underlying policy judgments. This section briefly describes five examples of comprehensive or unique state approaches. [] Connecticut. Connecticut's key natural resource damage provision is broad in scope, but different from the CERCLA liability provisions.41 The emphasis is on restoration of the injured natural resources to their former condition insofar as practical.42 In addition to liability for response costs and damages, the Commissioner of Environmental Protection can impose civil penalties, based in part on the degree of injury, loss, or destruction and type of natural resource harmed.43 Connecticut has an Emergency Spill Response Fund available to address harm caused to natural resources.44 The statute also provides for varying degrees of punitive damages when a responsible party is shown to be negligent or willful in its actions.45 The release of petroleum is actionable, although not specifically mentioned in the definitions of hazardous substance or hazardous waste.46 The statutes also provide the Commissioner of Environmental Protection with authority to access technical and legal experts as needed.47 [] Montana. The legislation montana first passed on hazardous substance releases in 198548 was for the most part a CERCLA paraphrase, including its section on natural resource damage.49 "Natural resources" was not defined in this early CERCLA-type statute.50 Now there are several sections on natural resource damages. The Montana statute defines "hazardous or deleterious substance"51 to include CERCLA hazardous substances, RCRA hazardous wastes, and any petroleum product.52 Montana has set up an Environmental Quality Protection Fund from which money can be spent to address natural resource injuries.53 Expenditures from the fund are to be recovered from responsible parties. The statute provides for recovery of damages, and it expressly includes "reasonable technical and legal costs of assessing and enforcing a claim."54 The code provides for an administrative penalty assessment of up to $ 1,000 per day per violation for recalcitrant responsible parties55 and for a lien to be placed on all property of a responsible party until damages for harm to natural resources are recovered.56 [] North Carolina. North Carolina has several laws concerning natural resource damages from hazardous substances or oil. The North Carolina Environmental Management Commission is charged with trusteeship over the state's natural resources.57 North Carolina does not include oil in the definition of hazardous substance, but separately defines oil very broadly to include everything from crude oil to petroleum-based derivatives.58 Releases of oil are generally actionable in the same way as other hazardous substances. North Carolina's Oil or Other Hazardous Substances Fund can be used for restoration of natural resources harmed by a release.59 Money spent from the Fund is to be recovered from those persons responsible for the release.60 North Carolina shows much foresight in emphasizing restoration of natural resources that have been harmed. The damages set forth in the liability statute are compensatory in nature and focus on the reasonable cost of returning the natural resources to their prerelease condition.61 The state can technically assess the degree of harm caused to natural resources by the release of oil or a hazardous substance. This assessment is to be considered prima facie evidence, and it can be likened to the federal rebuttable presumption.62 [] Pennsylvania. Pennsylvania's laws, known collectively as the Hazardous Sites Cleanup Act, provide a fairly comprehensive approach to recovery of damages for harm to natural resources.63 The statute begins with a declaration of policy that places natural resources as a top priority.64 Under the definition section, petroleum is not a hazardous substance.65 Pennsylvania designates the Department of Environmental Resources as trustee for the purposes of assessment and actions for damages.66 Under the Pennsylvania law, the state's assessment of damages has the force and effect of a rebuttable presumption.67 Pennsylvania has also established a Hazardous Sites Cleanup Fund.68 Unlike CERCLA, the Pennsylvania statute authorizes the Fund to address natural resource damages.69 The Pennsylvania statute also authorizes penalties against responsible parties showing willful or [20 ELR 10142] negligent disregard for the harm caused to natural resources.70 [] Washington. In November 1988 general election, Washington voters approved Initiative Measure No. 97 on remedies for natural resource damages.71 The Initiative established a state and local Toxics Control Account, which is available to address natural resource damage,72 and has liability provisions similar to those in CERCLA.73 Petroleum and petroleum products are included in the definition of hazardous substances, and the state Toxics Control Account can be used to address natural resource injury. In addition, Washington's water pollution control statute establishes liability for damages to fish, animals, and vegetation in state waters, with a preference for restoration as the assessment methodology and goal.74 Conclusions and Recommendations When hazardous substances are released, the public serves as a vocal and persistent advocate for remedy of potential health impacts. But the natural resources may not have such vocal advocates. Often, a long time elapses before natural resource injury is addressed. Federal management of natural resources, and the federal government's role as trustee, cannot begin to protect local resources adequately. The federal government will seek to recover damages for natural resources for which it is trustee. A state must pursue its own claims for the natural resources for which it is trustee. A starting point for any state is enacting a comprehensive statute that will adequately recover damages for restoration of injured natural resources. The statutory language should be developed by a committee composed of the CERCLA-required state trustee for natural resources and legislative, technical, legal, and university personnel, as well as other appropriate outside sources. The committee established to draft the statutes could continue in some form to assist the trustee in natural resource damage assessment and recovery. While the specific language and approach of individual statutes will vary, a state considering legislation in this area has a wealth of guidance. CERCLA should initially be consulted because it provides a broad framework for response to natural resource injury. With CERCLA as background, the state should then consult other state statutes that most directly apply. The language of these statutes should initially spell out the responsibilities of the state trustee for natural resources. To keep restoration costs at a minimum, the trustee should be required to provide an immediate response to any release or threat of release of a hazardous substance that could injure natural resources. The trustee, as part of its statutory duties, should be required to develop a comprehensive hazardous substance release restoration plan. The trustee would need to remain current in national legal and technical developments regarding natural resource damage issues. A state may also want to consider designating local government officials as trustees, with the same rights and responsibilities as the state trustee, where a localized response is appropriate. With the trustee's duties established, a state can address drafting provisions that focus on liability and other specific areas, such as: * Allowing access to a state "Superfund" for response, assessment, and restoration costs; * Requiring, where practicable, that restoration of injured natural resources occur together with remedial actions; * Including oil and its derivatives as actionable substances; * Using statutory language that details restoration as the goal when natural resources are damaged; * Developing state assessment regulations and statutory authority for rebuttable presumptions for accuracy and sufficiency; * Providing the state with the ability to recover for injury to privately owned natural resources; * Providing the state with the ability to impose penalties, punitive damages, and liens for response, assessment, and restoration costs; * Detailing the defenses available to persons responsible for a release; and * Providing statute of limitations provisions that best preserve the right of the state to recover for harm to natural resources. These suggestions for state statutory language are intended as a starting point. There are other issues that could be addressed. Because of the expense involved in restoring an injured natural resource and the obligation of a state to protect its natural resources, statutes that focus on the particular concerns of a state are needed. Each state has much flexibility to legislate in this area and much responsibility to ensure a viable natural resource base for the future. 1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-675. See generally, Atkeson et al., An Annotated Legislative History of the Superfund Amendment and Reauthorization Act of 1986 (SARA), 16 ELR 10360 (Dec. 1986). 2. CERCLA § 107, 42 U.S.C. § 9607, ELR STAT. CERCLA 024. See generally Jones & McSlarrow, . . . But Were Afraid to Ask: Superfund Case Law 1981-89, 19 ELR 10430 (Oct. 1989). 3. Ohio v. United States Department of the Interior, 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989); Colorado v. United States Department of the Interior, 880 F.2d 481, 19 ELR 21127 (D.C. Cir. 1989). For a legal analysis of these decisions, see Olson, Natural Resource Damages in the Wake of the Ohio and Colorado Decisions: Where Do We Go From Here? 19 ELR 10551 (Dec. 1989). 4. See Breen, Citizen Suits for Natural Resource Damages: Closing a Gap in Federal Environmental Law, 24 WAKE FOREST L. REV. 851 (1989). 5. "Record Settlement Leveled Against Shell Oil," U.S. Dept. of Justice press release, Nov. 29, 1989 (while this settlement was based on the Clean Water Act, it sets favorable precedent for CERCLA natural resource damage claims up to the $ 50 million limit). 6. CERCLA § 107(a)(1-4)(C), 42 U.S.C. § 9607(a)(1-4)(C), ELR STAT. CERCLA 025. 7. CERCLA § 101(16), 42 U.S.C. § 9601(16), ELR STAT. CERCLA 008. 8. In Ohio v. United States Department of the Interior, the D.C. Circuit ordered the Interior Department to clarify its regulations on which privately held resources are "natural resources" for which damage can be recovered. 880 F.2d at 459, 19 ELR at 21113. 9. CERCLA § 107(f)(1), 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA 026. 10. Artesian Water Co. v. New Castle County, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988); United States v. Southeastern Pennsylvania Transport authority, 17 ELR 20001 (E.D. Pa. 1986). 11. CERCLA § 101(27), 42 U.S.C. § 9601(27), ELR STAT. CERCLA 009. 12. City of New York v. Exxon Corp., 633 F. Supp. 609, 16 ELR 20850 (S.D.N.Y. 1986); Mayor of Boonton v. Drew Chemical Co., 621 F. Supp. 663, 16 ELR 20328 (D.N.J. 1985). But see Ohio v. United States Department of the Interior, 880 F.2d 432, 459 n.43, 19 ELR 21099, 21113-21114 n.43 (D.C. Cir. 1989) (tangential observation that local governments may not serve as trustees); City of Philadelphia v. Stepan Chemical Co., 713 F. Supp. 1484, 19 ELR 21319 (E.D. Pa. 1989) (city not a state for purposes of cost recovery). See generally Maraziti, Local Governments: Opportunities to Recover for Natural Resource Damages, 17 ELR 10036 (Feb. 1987) (Maraziti reviews legislative history in CERCLA's 1986 Amendments supporting municipal causes of action). 13. CERCLA § 107(f)(1), 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA 026. 14. CERCLA § 107(f)(2), 42 U.S.C. § 9607(f)(2), ELR STAT. CERCLA 026. 15. CERCLA § 301(c), 42 U.S.C. § 9651(c), ELR STAT. CERCLA 062. 16. CERCLA § 107(f)(2)(C), 42 U.S.C. § 9607(f)(2)(C), ELR STAT. CERCLA 026. 17. 52 Fed. Reg. 9042 (1987), 51 Fed. Reg. 27674 (1986) (codified at 43 C.F.R. pt. 11). 18. 43 C.F.R. § 11.41, The Interior Department has published an advance notice of proposed rulemaking regarding its intent to develop type A procedures for the Great Lakes environment and has requested information on the feasibility of developing type A procedures for other environments. 53 Fed. Reg. 20143 (1988); 54 Fed. Reg. 39015 (1989). 19. CERCLA § 301(c)(3), 42 U.S.C. § 9651(c)(3), ELR STAT. CERCLA 063. 20. Ohio v. United States Department of the Interior, 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989); Colorado v. United States Department of the Interior, 880 F.2d 481, 19 ELR 21127 (D.C. Cir. 1989). 21. 54 Fed. Reg. 39013 (1989). 22. CERCLA §§ 107(f)(1), 302(a), 42 U.S.C. §§ 9607(f)(1), 9652(a), ELR STAT. CERCLA 026, 065. 23. United States v. Reilly Tar and Chemical Corp., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982); United States v. Wade, 14 ELR 20435, 20436 (E.D. Pa., Feb. 2, 1984). 24. In re Acushmnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution, 716 F. Supp. 676, 19 ELR 21471 (D. Mass. 1989); see also Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986) (ambiguous opinion that can be read as in accord with In re Acushnet River). 25. CERCLA § 107(f)(1), 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA 026. 26. Idaho v. Hanna Mining Co., 882 F.2d 392, 19 ELR 21358 (9th Cir. 1989). 27. CERCLA § 107(j), 42 U.S.C. § 9607(j), ELR STAT. CERCLA 027. 28. CERCLA § 101(10), 42 U.S.C. § 9601(10), ELR STAT. CERCLA 007. 29. 53 Fed. Reg. 27268 (1988). 30. Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986). EPA's proposed regulations take a similar approach. 53 Fed. Reg. 27268-69 (1988). 31. CERCLA § 113(g)(1), 42 U.S.C. § 9613(g)(1), ELR STAT. CERCLA 039. 32. 51 Fed. Reg. 27674 (1986). 33. 52 Fed. Reg. 9047 (1987). 34. 54 Fed. Reg. 39013, 39016 (1986). 35. CERCLA § 107(c)(1), 42 U.S.C. § 9607(c)(1), ELR STAT. CERCLA 025. 36. CERCLA § 107(c)(2), 42 U.S.C. § 9607(c)(2), ELR STAT. CERCLA 025. 37. 26 U.S.C. § 9507(c). 38. CERCLA § 114(a), 42 U.S.C. § 9614(a), ELR STAT. CERCLA 041. 39. CERCLA § 302(d), 42 U.S.C. § 9652(d), ELR STAT. CERCLA 065. 40. 42 U.S.C. §§ 6901-6994, ELR STAT. RCRA 001-050. 41. CONN. GEN. STAT. ANN. tit. 22a, § 22a-6a (West 1989). 42. Id. § 22a-6a. 43. Id. § 22a-6b(b)(2). 44. Id. § 22a-451. 45. Id. § 22a-451(a). 46. Id. § 21a-335(e), § 22a-115(i). But see § 22a-51, -71 and the new Underground Petroleum Storage Tank Act, Public Act No. 89-373, § 4(b) (1989). 47. CONN. GEN. STAT. ANN. § 22a-4. 48. MONT. CODE ANN. tit. 75, ch. 10, pts. 701-715 (1985). 49. Id. pt. 715(i)(b). 50. Id. pt. 701. 51. Id. pt. 701(6) (1989). 52. Id. pt. 701(6)(a)-(d). 53. Id. pt. 704. 54. Id. pt. 715(2)(b). 55. Id. pt. 714(1). 56. Id. pt. 720. 57. N.C. GEN. STAT. ANN., ch. 143, § 143-215.77(2), -215.3 (1989). 58. Id. § 143-215.77(5a), (8). 59. Id. § 143-215.87. 60. Id. § 143-215.90(a), -215.3. 61. Id. 62. Id. § 143-215.90(b). 63. PA. STAT. ANN., tit. 35, ch. 29C (Purdon 1989). 64. Id. § 6020.102. 65. Id. § 6020.103. 66. Id. § 6020.702(a). 67. Id. § 6020.507(d). Under title 34, § 2161(a) and (b), damage to fish and wildlife by any means is actionable and in (b) there are suggested methods for economic evaluation. 68. PA. STAT. ANN. § 6020.901. 69. Id. § 6020.902(7). 70. Id. § 6020.1104. 71. Codified at WASH. REV. CODE ANN. tit. 70, ch. 70.105D (1989). 72. Id. § 70.105D.070 73. Id. § 70.105D.040. 74. Id. tit. 90, ch. 90.48 (1989). 20 ELR 10134 | Environmental Law Reporter | copyright © 1990 | All rights reserved |