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31 ELR 11356 | Environmental Law Reporter | copyright © 2001 | All rights reserved The Business Dilemma: 21st Century Natural Resource Damage Liabilities for 20th Century Industrial ProgressE. Lynn Grayson, Christine A. Picker, Steven M. Siros, and Stacy Lynn BettisonE. Lynn Grayson is a partner in the Environmental, Energy, and Resources Group of Jenner & Block in Chicago. Ms. Grayson concentrates her practice in environmental law representing clients in natural resource damage actions, due diligence matters, and enforcement actions. She is the chair of the ABA Section of Business Law Committee on Environmental, Energy, and Natural Resources. Christine A. Picker is a partner in the Environmental, Energy, and Resources Group of Jenner & Block in Chicago. Her experience includes representation of clients in Superfund actions, natural resource damage actions, private cost recovery actions, and insurance coverage matters, as well as performing due diligence for real estate and corporate transactions. Ms. Picker received her J.D. degree from Harvard Law School in 1992; her Masters in Social Work from Washington University in 1987; and her B.A. degree from the University of Michigan in 1985. Steven M. Siros received his J.D. degree from Northern Illinois University College of Law in 1994. Since 1996, he has been an associate with the law firm of Jenner & Block in Chicago, concentrating his practice on all aspects of environmental law. Prior to joining Jenner & Block, Mr. Siros was a law clerk for Justice Lawrence Inglis on the Illinois Appellate Court. Stacy Lynn Bettison is an associate at Jenner & Block in Chicago. After graduating from the University of Minnesota Law School in 1999, Ms. Bettison served as a law clerk for the Honorable Myron H. Bright of the U.S. Court of Appeals for the Eighth Circuit. Since 2000, Ms. Bettison has focused her practice in environmental law and commercial litigation. Throughout recorded time, many have attempted to rewrite history to soften the harsh realities of the "good old days." Without question, hindsight remains 20/20 in reflecting upon how this country's modern, industrialized enterprises have adversely impacted the environment, including natural resources. The dilemma now facing businesses relates to natural resource damage liabilities resulting from past industrial progress and prosperity. Through the years, these businesses have paid for past wrongs through the remediation of contaminated media. Clearly, U.S. businesses have learned the lesson of environmental protection through the Superfund experience. Despite the environmental protection advances, some federal and state trustees hope that they can rewrite history so that businesses once again pay for their industrial successes of the past. The term "natural resources" includes "land, fish, wildlife, biota, air, water, groundwater, drinking water supplies and other such resources belonging to, managed by, held in trust by, appertaining to or otherwise controlled by the U.S. . . ., any State or local government, [or] any Indian tribe."1 There is no doubt that over 200 years of development, in all of its various residential, commercial, and industrial forms, has negatively impacted natural resources. As is typically the case, industrial operations of companies continuing to conduct business appear to be the target of federal and state natural resource damage claims. These companies pose easier targets for natural resource damage cases brought by trustees since the long-term, ongoing operations often resulted in more apparent and even documented releases to the environment. While such cases appear straightforward, the regulatory scheme and evidentiary burdens associated with natural resource damage cases are extremely complex. As natural resource damage claims continue multiplying to fill voids left by more mature or stagnant regulatory programs, the legal controversies surrounding the statutory interpretations of the natural resource damage provisions will escalate. In the context of natural resources, all parties do not agree that history easily can be rewritten and natural resources readily restored or replaced. This Dialogue will examine significant new trends in natural resource damage cases. It will evaluate federal and state initiatives as well as the activities of federal and state trustees. It will conclude with an evaluation of emerging natural resource damage concerns for industry and highlight what business needs to know about natural resource damages. Significant Trends in Natural Resource Damages The quality and quantity of natural resource damage cases continues to rise. In its 1995 survey, the U.S. General Accounting Office reported that federal agencies have settled 98 natural resource damage cases for an estimated total of $ 106 million. Of the 98 cases: 48 settled with no payment; 36 settled for less than $ 500,000 each; 9 settled for between $ 500,000 and $ 5 million; and 5 settled for $ 13 million or more.2 By comparison, in Montrose Chemical Corp. of California v. U.S. Environmental Protection Agency,3 defendants settled for $ 73 million and appeared satisfied with that outcome in light of the natural resource trustees $ 1.2 to $ 1.7 billion claim. Cooperative Restoration Approach Natural resource damage cases historically seemed almost too burdensome for underfunded federal and state trustees lacking in resources and litigation support. To establish a prima facie case of liability for natural resource damages, a trustee must prove: (1) the elements of liability for response cost recovery action under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); and (2) that there has been injury to, destruction of, or loss of natural resources resulting from the hazardous substance release.4 To recover for natural resource [31 ELR 11357] damages, the trustees also must provide evidence quantifying those damages and connecting the injuries at issue with the damages.5 Federal and state budgetary considerations traditionally did not allow the aggressive pursuit of natural resource damage cases. Emerging developments may overcome obstacles faced by trustees allowing for more efficient, expedited case preparation and if appropriate, litigation. These developments include: Consent Decrees Reservation of Rights. By and large, CERCLA consent decrees negotiated since 1980 include a reservation of rights relating to natural resource damage actions. These Consent Decrees should clarify for trustees when the statute of limitations on the natural resource claim is triggered, and may help them prioritize which claims to pursue. New Mexico Contingency Fee. New Mexico has adopted an innovative approach for natural resource damage cases — contingent fee attorneys. While some may applaud the ingenuity of state trustees, others question the legality of such arrangements under CERCLA. Under CERCLA, damages recovered in natural resource damage cases only may be used to "restore, replace or acquire the equivalent of natural resources."6 It is unclear if contingent fee attorneys can be compensated from the monies recovered in a natural resource damage case. Natural Resource Damage Administrative Initiatives. In a bold move aimed at minimizing financial burdens on state trustees, New Jersey has proposed legislation requiring responsible parties to assess and restore natural resources as part of an administrative cleanup program. The proposed legislation also requires responsible parties to compensate the state for damages based upon the value such resources would have provided the public. The clear impact of the above developments is the ability of trustees to more effectively pursue natural resource damage cases. Shifting the burden of case development, coupled with lessened financial concerns, will allow federal and state trustees to more aggressively pursue natural resource damage claims. In addition, the trustees' use of the cooperative assessment process will further enhance their abilities to take action on natural resource damages. By far, the trustees' increased reliance on the cooperative assessment process has been instrumental in revitalizing the natural resource damage program. In this process, trustees and responsible parties work together to develop privately funded natural resource damage assessments. Proponents advocate that cooperative assessments allow for improved settlement negotiations with restoration-focused agreements instead of monetary claims. In a recent survey conducted by the Association of State and Territorial Solid Waste Management Offices Natural Resource Damage Focus Group (NRD Focus Group), the NRD Focus Group consulted industry representatives regarding the possible benefits and problems associated with the cooperative assessment process. Among others, these insights about the cooperative assessment process included: 1. trustees need to develop a scheme for apportioning damages to each responsible party — even though it is not required, responsible parties always favor a "fair share" approach as opposed to joint and several liability; 2. trustees should take into account the savings incurred in litigation avoidance by effectively negotiating reasonable assessment plans; 3. trustees should consider restoration alternatives other than on-site options because requiring the equivalent of lost resources or service may be preferable under the circumstances; and 4. trustees should collect sufficient information to document injuries to natural resources, to ensure that restoration is scaled appropriately and to justify the rationale for any settlement with a responsible party.7 The NRD Focus Group concluded that the cooperative assessment process between trustees and responsible parties can be a winning alternative to natural resource damage litigation. Cooperative assessments can be an efficient and effective approach to resolving natural resource damage liability for site restoration.8 The ultimate success of the co-operative assessment approach for trustees also depends on the overall regulatory structure including recently proposed regulations. Federal Initiatives and Trustee Activities The Draft Proposed Natural Resource Damage Assessment Rule The Draft Proposed Natural Resource Damage Assessment Rule (Draft Proposed Rule) would amend the current regulations about the conduct of natural resource damage assessments for hazardous substances under CERCLA and the Clean Water Act (CWA).9 It is intended to be an instruction booklet for natural resource trustees about how to conduct a natural resource damage assessment in order to restore damaged natural resources. The Draft Proposed Rule mainly addresses the major natural resource damage assessments — often referred to as the Type B rule — but parts also apply to Type A assessments, which are for simpler, single releases of hazardous substances into natural resources. The natural resource damage assessment rules have had a checkered history, and now the Draft Proposed Rule has an even more uncertain future. Regulations for natural resource damage assessments were promulgated in 1986 and later revised in 1988.10 These regulations were challenged in Ohio v. U.S. Department of the Interior,11 and in 1991 the U.S. Department of the Interior (DOI) issued a new proposed rule to address the issues in the Ohio ruling. [31 ELR 11358] Then-President George Bush signed the new rule in the waning days of his Administration, but the rule was not published in the Federal Register before the Clinton Administration took office. As a result, the Clinton Administration withdrew the rule. In 1994, the DOI published a new final rule that again addressed the issues in the Ohio ruling, but with the Clinton, instead of Bush, imprint. This rule was challenged in Kennecott Utah Copper Corp. v. U.S. Department of the Interior,12 and although the rule emerged largely unscathed, the effect of striking down some of the rule's provisions resulted in (President Ronald) Reagan-era provisions of the rule being reinstated.13 The DOI under President William J. Clinton revised the rule, releasing the Draft Proposed Rule in April 1999. Numerous stakeholders objected to the Draft Proposed Rule, including state governments, the U.S. Department of Energy (DOE), and industry. The DOI undertook to once again modify the rule, finalizing a draft that was sent to the Office of the Federal Register for publication at the end of the Clinton Administration. The draft was not published before the current Bush Administration took office, and President George W. Bush withdrew it from publication. The DOI did not circulate the revised version of the Draft Proposed Rule to stakeholders outside of government, so it remains the best guess of those stakeholders what the content of the Draft Proposed Rule was when the Bush Administration withdrew it. As of the date this Dialogue went to publication, the Draft Proposed Rule remains under executive review. Career DOI employees are hopeful that the Draft Proposed Rule will emerge for publication in the form the rule was in as of January 2001; however, the main architect of the Draft Proposed Rule is no longer with the DOI. Moreover, the fact that Secretary Gail Norton is still filling staff positions and that the Draft Proposed Rule is just a draft decreases the likelihood that the Draft Proposed Rule will be published in the near future. Given the uncertainty about not just the future of the Draft Proposed Rule, but also the current contents of it, this Dialogue will summarize only certain major issues in the Draft Proposed Rule. Specifically, this section of the Dialogue addresses six aspects of the Draft Proposed Rule: (1) definition of injury; (2) causation standard; (3) focus on and measure of restoration; (4) Type B assessment procedures; (5) cooperation among trustees and between trustees and responsible parties; and (6) multiple release and multiple responsible party sites. The Draft Proposed Rule takes a new approach to identifying injury. The existing list of 18 specific biological injuries would be replaced with the concept that a biological natural resource is injured if it is dead or has a sublethal condition that could shorten life span, reduce reproduction, or impair growth and development.14 For a sublethal injury, the trustee would not have to prove that the condition did in fact shorten life span, but only that the condition potentially could do so. For nonbiological resources such as soil, water, and air, the Draft Proposed Rule would define injury based on the potential effect on the public's use or enjoyment of that resource.15 The Draft Proposed Rule also defines certain conditions as per se reductions in a resource's capacity to provide a function to the public such as exceedances of pollution-control limits and government restrictions on public use.16 Significantly, the Draft Proposed Rule explicitly states that the mere presence of contamination is not an injury.17 As to the causation standard the trustees must meet, the Draft Proposed Rule rejects all of its prior provisions related to causation and, instead, requires that trustees establish: (1) a connection between the substance being assessed and the injury (based on existing or new lab or field study, and evidence of exposure at a duration and level comparable to that used in the study); and (2) that the trustees considered and rejected the possibility that other factors were the sole cause of the injury.18 The Draft Proposed Rule also tries to clarify the focus and measure of restoration. Prior versions of the regulations had produced confusion over whether the goal of restoration was to improve the condition of the natural resource or to return functions or services a natural resource provides to humans or other resources. Under the Draft Proposed Rule, baseline restoration is action to return an injured resource to its baseline condition and would require restoring or replacing the resource itself.19 Pursuant to the Draft Proposed Rule, natural resource restoration would be measured by: (1) capacity of the resource to provide a function that the public can use or enjoy; (2) habitat suitability (providing a species with everything it needs to thrive); or (3) condition of a population (condition of all individuals of a particular species that use the area being assessed).20 The Draft Proposed Rule eliminates the requirement that trustees use specific Type B procedures. Instead, the Draft Proposed Rule would require that procedures meet certain general technical standards, which would be deemed per se reliable and valid. For example, procedures that are accepted and published as broadly applicable procedures by a scientific government agency or a testing standards organization would be considered per se reliable and valid.21 The Draft Proposed Rule seeks to increase cooperation not only among trustees, but also between trustees and responsible parties. Pursuant to the Draft Proposed Rule, trustees are required to spend a minimum of 60 days at the beginning of the assessment making reasonable efforts to consult with each other regarding a joint assessment. If the trustees cannot agree, they can proceed independently. If as a result of the failure to work together two trustees assess the same resource separately, each would lose the option of seeking the Type B procedure's rebuttable presumption that the costs of assessing the resource constituted reasonable assessment costs.22 The Draft Proposed Rule requires trustees at the beginning of either a Type A or Type B assessment to invite responsible parties to negotiate not only the responsible parties' participation and funding of the assessment, as is currently the rule, but also the settlement of the claim in whole or in part.23 Part of this settlement could even include allowing responsible parties to conduct the restoration, as opposed to paying monetary damages, as is the case under the current regulations.24 Trustees would have to give responsible parties a minimum of 60 days to initiate negotiations before the trustees publish an assessment plan (now known as the Type B Framework or a Type A Report).25 The Draft Proposed Rule also endeavors to ease the data and fact-gathering burden that accompanies assessments by allowing trustees and responsible parties to reach agreements about facts and even enter into stipulations that would allow the trustees to forego certain data collection.26 The current regulations provide little guidance regarding natural resource damage cases that involve multiple releases and multiple responsible parties. Under the Draft Proposed Rule, trustees who use Type B procedures could assess all releases collectively, regardless of sources, when determining causation and measuring baseline conditions.27 Trustees would then be entitled to a rebuttable presumption on the total damages, but not as to the allocation of these damages to each responsible party.28 Given the above history of the natural resource damage assessment regulations, there is understandable confusion on the part of trustees, responsible parties, and other stakeholders as to what the rules are that actually govern natural resource damage assessments. Moreover, with the Ohio and Kennecott decisions upholding and vacating portions of natural resource damage assessment rules, coupled with the Draft Proposed Rule's dissemination for two years, trustees' approaches to which rules apply reflect a hodgepodge of various Reagan era and Clinton era rules, and a guess at what the Draft Proposed Rule contains. This situation creates uncertainty, which often leads to disagreements about how natural resource damage assessments should proceed. These disagreements in turn add to the time it takes to assess and restore a resource, as well as to the transaction costs for government and responsible parties. Current practice regarding natural resource damage claims illustrates that some of the concepts behind the Draft Proposed Rule are already creeping into the way that trustees handle natural resource damage claims. For example, trustees are making greater efforts to move toward restoration in a quicker fashion than in the past. Tom Ginn, a principal with the consulting firm Exponent who has practiced extensively in the natural resource damage arena in the past several years, has seen trustees begin to focus more on restoration earlier in the process. One of the complaints responsible parties have had in the past is that trustees spend too much time and money studying the injury. Efforts to restore natural resources sooner is something that all stakeholders can embrace. Cooperation among trustees and between trustees and responsible parties is very much a mixed-bag in the status quo. One need look no further than the Fox River case to see an example, more fully examined later in this Dialogue, of a federal trustee, U.S. Fish and Wildlife Service (FWS), and a state trustee, Wisconsin Department of Natural Resources (WDNR), who cannot work together. Fortunately, the Fox River situation is atypical in terms of just how egregious the differences are between the federal and state trustees, but a lack of agreement between trustees about how to assess or restore natural resource damages is not unusual and actually interferes with the effort to assess and restore them. Efforts by trustees and responsible parties to cooperate seem to be faring a little better. There is a growing recognition by both trustees and responsible parties as to the value of cooperating with each other. Greater cooperation increases the chances of global settlements, which responsible parties typically prefer, decreases all parties' transaction costs, and restores natural resources in a more timely and cost-effective manner.29 Despite these gains, mistrust between trustees and responsible parties remains in that some responsible parties fear that cooperating with the trustees will only give the trustees the research and information to make a better case against the responsible party. The issue of how multiple release and multiple party sites should be treated also is already at issue within the natural resource damage community. This factual description of a site, multiple release, and multiple party goes directly to a legal issue: does joint and several liability apply to natural resource damage claims? This legal issue is currently being briefed in United States v. ASARCO Inc.,30 better known as the Coeur d'Alene case, which is examined more fully later in this Dialogue. At issue are the natural resources in the 1,500-square-mile-area of the Coeur d'Alene basin, which has been contaminated by many different responsible parties for over 100 years. The defendant mining companies filed pre-trial motions arguing that the joint and several liability language in CERCLA applies to Superfund only and not to natural resource damage claims, and that the injury to the natural resources is divisible and subject to apportionment. If the mining companies prevail on this argument, it will mean they will not have to pay for damage to natural resources that they did not cause, which is part of the recovery the government is seeking. To date, no federal court has ruled on whether joint and several liability applies to natural resource damage claims. As this Dialogue goes to publication, the court has decided to withhold ruling on the argument until the issue of liability is determined at trial. What the New Natural Resource Damage Rule Should Look Like The uncertainty as to what exactly the natural resource damage assessment regulations are at this point in time, and the varied manner in which they are applied by trustees, dictate that a new rule clarify and simplify the six issues discussed [31 ELR 11360] above. Unfortunately, the Draft Proposed Rule as circulated in April 1999 does not achieve this. The proposed definition of injury is quite broad. For biological resources, a finite category of 18 items was replaced with a broader concept that can include almost anything. In addition, the definition of a sublethal condition does not require that any injury actually have occurred, but only that there is a potential for injury. Many commentators on the rule also have expressed their doubts that the definition of injury is grounded in sound science.31 An example of this is the definition of exceedances of pollution limits as the standard to measure injury to nonbiological resources. It is very possible an exceedance could occur, but a mere exceedance is not necessarily predictive of an injury. Accordingly, the Draft Proposed Rule should scrap its new definition of injury and return to the prior definition or revise the version on the Draft Proposed Rule. The proposed causation standard significantly weakens the causation standard in the current rules. CERCLA requires that a trustee determine that injury "resulted from such a release" and the CWA requires that the injury "was the result of a discharge."32 The current regulations require trustees to determine if concentrations of substances cause an injury, if an exposure pathway exists, and for biological injuries, whether the injury is caused by hazardous substances rather than environmental factors. Even with this framework, courts have varied as to whether trustees must show a release merely contributes to an injury in order to establish causation, or whether trustees must show a release substantially contributes to an injury in order to establish causation.33 The proposed two-part test is much closer to the "merely contributes" test in that it only requires a connection between a substance and the injury, and that the trustee consider and reject that factors other than the substance are the sole cause of the injury. The "sole cause" portion of the rule also is questionable from a scientific standpoint in that the determination of a "sole cause" is hard to make and rarely occurs, according to Mr. Ginn, a natural resources expert. Both of these factors will sweep more responsible parties into a natural resource damage claim. Industry obviously objects to the proposed causation standard, but other stakeholders should also be concerned because the handling of natural resource damage claims will become more cumbersome and costly to pursue. In addition, every new rule means a new challenge to it, thus again interfering with the natural resource damage community arriving at a shared understanding of what causation means. Accordingly, retaining the existing regulations as to the causation standard is recommended. The renewed focus on restoration is an aspect of the Draft Proposed Rule that all stakeholders welcome. One concern for responsible parties, however, is that they do not want to be asked to restore a natural resource to baseline if that natural resource was already part of a cleanup under Superfund. For example, the method to cleanup and restore sediment is largely the same — dredging. Responsible parties do not want to pay for a cleanup under Superfund and then have the natural resources trustee require that the same area be dredged. Although this exact issue of whether responsible parties can be liable for a double cleanup and double recovery has not been litigated, a similar provision of the National Oceanic and Atmospheric Administration (NOAA) natural resource damage rules was challenged and remanded because it did not clearly address baseline restoration in the context of remediating oil spills.34 One way of addressing industry's concern about double cleanups and recoveries is to add the U.S. Environmental Protection Agency (EPA), the federal agency that brings many of the Superfund cases that often later spawn natural resource damage claims, to the natural resource damage assessment process. The idea of EPA, the natural resource trustees, and responsible parties coordinating with each other was raised by DOE in response to the Draft Proposed Rule when the DOI circulated it in 1999. In fact, in a September 2000 letter, DOE specifically called for the Draft Proposed Rule to contain a provision requiring such coordination. The Draft Proposed Rule jettisons the procedures for conducting a Type B assessment. In the current context where trustees cannot agree with each other and responsible parties challenge basic legal concepts underpinning natural resource damage assessments and restoration, natural resource damage assessment rules need more structure and guidance, not less. The Draft Proposed Rule does away with set procedures to introduce a concept that is so broad the result will be that trustees and responsible parties will only have more to disagree about, which will delay the assessment and restoration of natural resources. Accordingly, the procedures in the existing rule are better than the general concept of reliable and valid standards put forth in the Draft Proposed Rule. The Draft Proposed Rule's efforts to encourage cooperation among trustees is useful, but it does not go far enough. The Fox River natural resource damage claim debacle is the best example of how the failure of trustees to cooperate with each other is interfering with natural resource damage assessments and restorations. DOE's objections to the Draft Proposed Rule show that its cooperation provisions do not go far enough. One way to address this would be to require that the trustees subject any disputes among themselves in the planning, assessment, or restoration phases to an alternative dispute resolution (ADR) process. It is common to find ADR clauses specific to trustees in consent decrees that settle natural resource damage claims. If an ADR requirement existed early in the natural resource damage process, it has the potential to move natural resource damage claims forward in a faster fashion. Moreover, it can be difficult for responsible parties to settle natural resource damage claims when all of the trustees are not a party to the settlement. Responsible parties do not want to be vulnerable to additional natural resource damage claims by a different trustee just because the trustees cannot agree among themselves. Everyone would benefit, and natural resources would be restored sooner, if trustees could better coordinate among themselves. Another issue that interferes with the settlement of natural resource damage claims is the lack of clarity about [31 ELR 11361] whether joint and several liability exists for natural resource damage claims. The Draft Proposed Rule skirts this issue by providing that trustees can be entitled to the rebuttable presumption if they use Type B procedures to assess all releases collectively, but only as to the total damages, not as to the allocation of the damages to each responsible party. This provision works with whatever determination is made as to the joint and several liability of natural resource damage claims. However, it is beyond the authority of the DOI to draft regulations that specifically state whether there is joint and several liability; this is a determination that will be left to the courts. State Initiatives and State Trustee Actions In addition to the uncertainty that responsible parties face as a result of the unsettled status of the Draft Proposed Rule, responsible parties also must be cognizant of the role that state natural resource damage trustees play in the natural resource damage scheme. State natural resource damage trustees are becoming increasingly active in bringing actions to recover for damages to state-owned natural resources. While traditionally responsible parties may be more used to working with federal natural resource damage trustees at contaminated sites, it is likely that responsible parties will face increased interaction with state natural resource damage trustees. The role of a state natural resource damage trustee is very similar to the role of the federal natural resource damage trustee. Just as the federal natural resource damage trustee is charged with restoration of federally owned natural resources, state natural resource damage trustees are charged with restoration of state-owned natural resources. Unlike the federal natural resource damage trustee, however, the state natural resource damage trustee has the option of seeking to restore damaged state-owned natural resources under the federal natural resource damage regulatory scheme, or under individual state natural resource damage programs. In addition, state natural resource damage trustees can bring natural resource damage actions pursuant to traditional common-law theories. The interaction and role of state trustees in natural resource damage actions is the focus of this section. Role of the State Natural Resource Damage Trustee in the Federal Natural Resource Damage Framework As noted above, state natural resource damage trustees are authorized under CERCLA § 107(a)(4)(c) to recover for damages to state-owned natural resources.35 The governor of each state is authorized to designate an official or agency to act as the state natural resource damage trustee under the federal natural resource damage program.36 As part of the research for this Dialogue, we have identified the appropriate agency or department responsible for bringing state natural resource damage claims in each of the 50 states. The table at the end of this Dialogue provides a list of each such agency or department. The natural resource damage regulations promulgated by the DOI (including the Draft Proposed Rule) are equally applicable to natural resource damage actions brought by state natural resource damage trustees.37 State natural resource damage trustees are able to utilize the natural resource damage assessment procedures set forth in 43 C.F.R. Part 11 to obtain "the force and effect of a rebuttable presumption in any administrative or judicial proceeding brought under CERCLA."38 This rebuttable presumption cloaks the state natural resource damage trustee's assessment and recommendation concerning the appropriate steps to restore the natural resources with a presumption of validity in any subsequent action to recover from responsible parties the costs of restoring the damaged natural resources. However, the state natural resource damage trustee still must demonstrate that there has been (1) a release; (2) of a hazardous substance; (3) from a vessel or at a facility; (4) by a responsible party.39 In addition, the state natural resource damage trustee must demonstrate that the release of the hazardous substance or oil resulted in the actual adverse affect on the resource or on the services provided by that resource to humans or the environment.40 Only then can the state natural resource damage trustee rely on the rebuttable presumption provided by CERCLA to demonstrate the appropriate steps necessary for restoration of the damaged resources. Just like the federal natural resource damage trustee, the state natural resource damage trustee is not obligated to follow the natural resource damage assessment procedures adopted by the DOI or NOAA.41 Where a state natural resource damage trustee does not follow the assessment procedures promulgated by the DOI and/or NOAA, then the state natural resource damage trustee is deprived of the rebuttable presumption afforded by CERCLA. Of course, before any natural resource damage trustee can commence a natural resource damage action, the first thing that must be determined is what type of resources have been damaged. This determination is critical because federal trustees have jurisdiction over federally owned natural resources, state trustees have jurisdiction over state-owned natural resources, and tribal trustees have jurisdiction over tribally owned natural resources.42 Thus, the type of damaged resource is determinative of which trustee has authority to recover damages from the responsible party. The distinction between federal, state, and tribal ownership of natural resources is murky, and the federal natural resource damage statutes and regulations provide little guidance to clarify this distinction. Generally speaking, federally owned natural resources consist of migratory birds and federally endangered species. Federal trustees will often extend their authority over migratory birds to include water, sediment, and vegetation that constitute "habitat" for these migratory birds, thereby effectively extending their jurisdictional authority over a significant area of the United States. In addition, federal land managers, i.e., the U.S. Forest Service, the Bureau of Land Management, and the [31 ELR 11362] U.S. Department of Defense, are authorized to pursue claims for impacts to natural resources located on the federally owned lands.43 State-owned natural resources generally consist of those resources "belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the state government,"44 including those natural resources protected by the "public trust doctrine." The "public trust doctrine" recognizes that some types of natural resources are held in trust by government for the benefit of the public."45 Historically, the types of natural resources covered by the public trust doctrine consist of (1) submerged lands, (2) the shoreline, and (3) other navigable waters.46 However, by statute and court decisions, this list of natural resources has been expanded in many states to include non-navigable waters, state parks, air, wildlife, and other natural resources.47 The definitions of state-owned and federally owned natural resources overlap to a fairly significant degree. Often-times, federal and state trustees assert joint ownership of the same natural resources. In such situations, cooperation between the multiple trustees is important. Where this cooperation is lacking, responsible parties and natural resource damage trustees can find it difficult to successfully resolve natural resource damage claims. As more state natural resource damage trustees become increasingly active in bringing claims for damages to state-owned natural resources, the potential for breakdowns in cooperation between the different trustees will increase. The difficulties inherent in a breakdown in cooperation is further discussed at the end of this Dialogue. State Implemented Natural Resource Damage Statutes and Regulations In addition to CERCLA's natural resource damage provisions, state natural resource damage trustees have several other arrows in their natural resource damage quiver. The vast majority of states have promulgated natural resource damage programs that are independent of CERCLA's natural resource damage provisions. These state natural resource damage programs can provide state trustees with authority to bring natural resource damage claims independent of the federal natural resource damage regulations. In addition, state natural resource damage trustees also have the ability to bring claims for damages to state-owned natural resources pursuant to traditional common-law causes of action. [] State Natural Resource Damage Statutes and Regulations. As part of the research for this Dialogue, a comprehensive survey of the laws of all 50 states was conducted. The results of this survey are set forth in the attached table, which is current through March 2001.48 In addition to identifying state natural resource damage trustees, the survey attempted to identify the relevant natural resource damage statutes in all 50 states. The survey of state natural resource damage statutes reveals a significant diversity of state programs. While a fair number of state natural resource damage programs mimic CERCLA's natural resource damage provisions, several states have implemented entirely unique natural resource damage programs. The following examples are representative of the various natural resource damage programs in the 50 states. A number of states such as Indiana have adopted natural resource damage regulations that are very similar to the federal natural resource damage regulations.49 In states with barebone natural resource damage statutes like Indiana, the possibility exists that the natural resource damage trustees will find it difficult to appropriate the necessary funds to conduct initial natural resource damage assessments and/or to bring litigation to recover from responsible parties the costs necessary to restore the damaged natural resources. This is true in part because under the federal natural resource damage program, the burden is on the natural resource damage trustee to establish that damage to natural resources has occurred, that there is a causal link between the natural resource damage and the release caused by a responsible party, and finally, the appropriate steps to restore the damaged natural resources. This all takes up-front money on the part of the state natural resource damage trustee. In these states, state natural resource damage trustees must either work closely with a federal natural resource damage trustee or be sufficiently adept at entering into cooperative agreements with responsible parties, whereby the responsible party will either perform the initial assessment itself or provide the funding for the state trustee to perform the initial assessment. Furthermore, for reasons directly relating to a lack of sufficient resources to sustain such an independent action, the state trustees in these states will likely be less willing to bring natural resource damage actions on their own behalf. It should be noted, however, that more and more states are recognizing the importance of restoration of damaged natural resources and are providing funding mechanisms to enable state natural resource damage trustees to bring natural resource damage actions as is discussed below. Arizona's natural resource damage laws and regulations also are similar to the federal natural resource damage program. However, Arizona, like several states, has established a fund that provides monies needed by state natural resource damage trustees to conduct the initial assessments and/or to bring actions to recover for damages caused to natural resources.50 [31 ELR 11363] As noted in the preceding paragraph, funding poses a significant obstacle on state trustees' ability to seek restoration of damaged natural resources. By ensuring that its state natural resource damage trustee has access to at least $ 15 million on an annual basis, it is reasonable to assume that state natural resource damage trustees in Arizona will be more likely to bring actions seeking to restore damaged natural resources. Another state, New Mexico, has come up with a unique way to resolve around the funding problem that state natural resource damage trustees face. New Mexico's Office of Natural Resources has initiated a program whereby private attorneys are hired by the state to bring natural resource damage actions on behalf of the state on a contingent fee basis. For example, private attorneys representing the New Mexico Office of Natural Resource's have filed a $ 260 million lawsuit for groundwater contamination of the aquifer serving Albuquerque, New Mexico.51 This action is being brought on behalf of the state natural resource damage trustee without any involvement of the federal natural resource damage trustee. The validity of New Mexico's contingent fee approach to natural resource damage actions is subject to some criticism given CERCLA's requirement that all damages that are recovered in a natural resource damage action be used only to restore, replace, or acquire the equivalent of such natural resources.52 In fact, the propriety of New Mexico's contingent fee provision is being challenged by an industry group in the above-referenced case. Thus, whether the courts will allow the use of contingent fee attorneys under the federal natural resource damage program remains to be seen. However, if this approach succeeds, it could foretell a new era in natural resource damage actions with organized plaintiffs bars pursuing natural resource damage actions against responsible parties on a nationwide basis. Other states have adopted natural resource damage programs that have unique provisions concerning restoration of damaged natural resources. For example, New Jersey has implemented a system that provides a powerful weapon for the state to compel restoration of damaged natural resources. Under the federal program, a state natural resource damage trustee is required to initiate an action to recover for damages to natural resources. Absent bringing such an action, the federal program provides no other mechanism for the state to recover for damages to natural resources. Under the New Jersey regulations, however, in order to avail themselves of New Jersey's site remediation program, responsible parties will find it necessary to take affirmative steps to restore damaged natural resources independent of any action on the part of the state trustee. New Jersey's recently amended Technical Requirements for Site Remediation require responsible parties to assess and restore natural resources as part of New Jersey's administrative cleanup program.53 To receive a determination from the New Jersey Department of Environmental Protection that no further action is required at a site, the responsible party must assess and restore any damaged natural resources that may be present at the site.54 The effect of this provision is that responsible parties now must affirmatively take steps to restore damaged natural resources in order to fully satisfy New Jersey's Site Remediation Program and receive a no further action order. This statute should result in more damaged natural resources being restored as part of the state's site remediation program. [] State Claims Under the Public Trust Doctrine or Public Nuisance. In addition to bringing natural resource damage actions pursuant to the federal and/or state natural resource damage regulatory scheme, state natural resource damage trustees also are able to bring actions to recover for damages to natural resources under the state common-law public trust doctrine and/or public nuisance doctrine. As noted above, the "public trust doctrine recognizes that many types of natural resources are held in trust by government for the benefit of the public."55 Although state-specific, these resources often include submerged lands, the shoreline, navigable waters, non-navigable waters, state parks, air, wildlife, and other natural resources.56 When resources that are held in the public trust are damaged, state trustees and/or private persons have the ability to bring an action to recover for damage to those resources. Similarly, a public nuisance is defined broadly as "an unreasonable interference with the rights common to the general public."57 A public nuisance is an offense against the state that the state has authority to remedy through the exercise of its police power and is an equitable action that is governed by the standard of strict liability.58 When a public nuisance exists, the state trustee can bring an action to abate that public nuisance. The advantage of actions brought pursuant to the public trust doctrine and/or for a public nuisance is that these claims provide a broader range of relief to state trustees, including injunctive relief.59 Under the federal natural resource damage regime, unless the alleged harm to the natural resources is causing imminent and/or substantial harm to human health or the environment, the state trustee lacks the authority to seek injunctive relief from responsible parties. In addition, the general absence of an applicable statute of limitations is a significant benefit of these types of actions for state natural resource damages trustees. Thus, both the public trust doctrine and prohibition on public nuisances can provide a powerful weapon to state trustees seeking injunctive [31 ELR 11364] relief to restore the damaged resources or abate the public nuisance. State trustees play an important role in the natural resource damage regulatory arena. As state natural resource damage trustees become more sophisticated, especially as CERCLA Superfund actions decrease, state natural resource damage trustees will probably bring more actions against responsible parties. A state trustee can bring these actions under the federal natural resource damage regulatory scheme or pursuant to state natural resource damage statutes. Additionally, if private-contingent fee attorneys are vested with the right to bring natural resource damage actions, responsible parties may see organized bars form whose sole purpose is to bring natural resource damage actions against responsible parties. Responsible parties also need to be cognizant of these common-law remedies available to state natural resource damage trustees as well as to private citizens to compel the restoration of damaged state-owned natural resources. The availability of these alternative recovery options may provide responsible parties with a greater incentive to cooperatively work with state trustees to restore damaged natural resources. Increasing Importance of Natural Resource Damage Concerns for Business While it is difficult to ascertain the exact number of natural resource damage settlements, we know that the economic burden, both threatened and actual, is increasing. These claims, and the alleged monetary values attached to them, haunt businesses as did the earliest Superfund demands. Given the complexity of these cases, businesses try to avoid litigation, if feasible, as do government prosecutors, as a result of the human and economic costs at stake. Consequently, case law on key statutory provisions is unavailable to help businesses respond to natural resource damage claims in a reasoned, sound manner. For these reasons, businesses by and large remain fearful of such claims arising in a virtually unknown, untested area of environmental law. For different reasons, federal and state trustees fear aggressive pursuit of these cases in most instances where resources are lacking. Again, the move in favor of a cooperative assessment approach seems, at first blush, advantageous to both sides. A review of recent significant natural resource settlements demonstrates that a great deal is at stake for targeted companies: 1. Montrose Chemical Corp. Settlement: Dichlorodiphenyltrichloroethane defendants settled this $ 1.7 billion claim for $ 30 million in natural resource damages and $ 43 million in past and future response costs for alleged injuries to the marine environment off the southern California coast. Prior settlements in this case included $ 45.7 million in response costs and natural resource damages from the sewer operator and other governmental entities, and $ 21.5 million in response costs and natural resource damages from various polychlorinated biphenyl (PCB) defendants.60 2. Summitville Mine Superfund Site: $ 5 million of $ 27.75 million settlement paid to resolve federal and state natural resource damage claims.61 3. Bunker Hill Superfund Site Partial Settlement: Sunshine Mining Company and Sunshine Precious Metals (then in Chapter 11) settled natural resource damage claims in the Coeur d'Alene basin by imposing conservation easements on sensitive timberlands, paying royalties to the United States and a tribe on mining revenues, issuing warrants convertible into 9.95% of Sunshine Mining's stock, and performing cleanup work at the Silver Mine site.62 4. Indiana v. Dow Chemical Co.: Dow donated 17 acres of floodplain habitat to resolve natural resource damage claims associated with its Zionsville chemical plant.63 5. Chemical Leaman Tank Lines Superfund Site, N.J.: $ 4.2 million paid to settle natural resource damage claims and assessment costs. Money to be used for wetlands restoration.64 6. United States v. Goodyear Tire & Rubber Co.: $ 445,000 paid to resolve alleged natural resource damage at New York plant site.65 These cases illustrate that natural resource damage claims do exist and, depending on the facts, are costly to resolve. Trustees' Efforts to Extend Statute of Limitations on Natural Resource Damage Claims In addition to bringing more natural resources claims, trustees are trying to keep those claims alive longer by avoiding the application of the statute of limitations. For sites not on the national priority list (NPL), the statute of limitations for natural resource damage actions is three years after the "date of discovery of the [natural resource loss] and its connection with the release in question."66 For NPL sites, federal facilities, or any vessel or facility at which a remedial action is otherwise scheduled, the statute of limitations is three years after the completion of the remedial action.67 Typically, the statute of limitations for the NPL sites and federal facilities gives trustees more time to bring a claim than the statute of limitations for non-NPL sites. Consequently, these two provisions set the stage for trustees to try to gain the longer statute-of-limitations period for NPL sites at what originally were non-NPL sites. For example, in Montrose Chemical Corp.,68 the U.S. Department of Justice brought a natural resource damage claim against Montrose for an area that was not listed on the NPL but was contaminated by discharges from the NPL site. The area that was the subject of the natural resource damage claim was located several miles away from the NPL site.69 The trial court [31 ELR 11365] dismissed the natural resource damage claim for the non-NPL site on the basis of the statute of limitations. On appeal, the court held that the non-NPL site was not subject to the natural resource damage statute of limitations for NPL sites because EPA had not gone through the proper rulemaking channels to add the non-NPL portion of the site to the NPL portion of the site. The case is illustrative, however, of the steps the government is willing to take to obtain the longer natural resource damage statute of limitations. Another example where the government tried to alter the boundaries of an NPL site to bring a larger area of contaminated land within the scope of the natural resource damage NPL statute of limitations is ASARCO.70 The parties in the ASARCO decision were litigating the issue of whether EPA properly expanded the boundaries of an NPL site to bring a larger area of contaminated land under the NPL statute of limitations. Although the court noted that EPA may expand the boundaries of an NPL site without a notice-and-comment period, a challenge to EPA's decision to include additional property to an existing NPL site is subject to judicial review only by the U.S. Court of Appeals for the District of Columbia Circuit.71 As such, the U.S. Court of Appeals for the Ninth Circuit ruled that it was without jurisdiction to rule on the natural resource damage statute-of-limitations issue, which was based mainly on a dispute involving the boundaries of the NPL site.72 In addition to these two reported cases where EPA and/or a trustee tried to achieve a longer statute of limitations for natural resource damage claims by transforming non-NPL property into an NPL site, there are anecdotal reports of trustees making this kind of attempt at different sites. This has occurred where the trustees are negotiating with the responsible parties but are not making the progress they would like, so they attempt to get a site named to the NPL or added to a preexisting NPL site. Although the few court decisions have not bolstered EPA's and the trustees' authority to shift non-NPL sites into NPL sites and obtain the longer statute of limitations, the threat of this remains a weapon in the trustees' arsenal when it comes to negotiating natural resource damage settlements. State trustees may be able to avoid the statute-of-limitations problem in its entirety. As a general rule, there is no statute of limitations for state public trust doctrines and nuisance law. Accordingly, using these legal theories, state trustees will have unfiltered access to the courthouse to bring natural resource damage claims. Coordination of State and Federal Trustees Another issue that responsible parties face on an increasingly frequent basis is dueling trustees. At many sites where natural resource damages are at issue, both federal- and state-owned natural resources are impacted.73 It is very common that releases of hazardous substances impact natural resources that fall under the jurisdiction of more than one trustee. For example, a release of hazardous substances on state-owned land may have impacted a groundwater resource and may have also injured migratory birds or endangered species. In such an instance, the state trustee would have jurisdiction over the groundwater resources, while the federal trustee would exercise jurisdiction over the natural resources or habitat of the migratory birds. In addition, in the event that the natural resource damage occurred on federal- or state-owned lands, state and federal land management agencies also would have jurisdiction to pursue claims for natural resource damage to their properties. While the CERCLA natural resource damage provisions mandate that state and federal natural resource damage trustees cooperate at sites where joint ownership of natural resources is an issue,74 that cooperation does not always occur. [] Conflicting Interests Between State and Federal Trustees. When conflicts arise between multiple trustees, it is difficult for responsible parties to effectively resolve their natural resource damage liability. For example, a responsible party's settlement with one trustee, be it federal, state, or tribal, does not necessarily insulate that responsible party from natural resource damage claims brought by other trustees. On the other hand, CERCLA's prohibition on double recovery may operate to bar a trustee from seeking additional natural resource damage from a responsible party where the responsible party has entered into a settlement with another trustee for natural resource damage caused to jointly owned natural resources.75 This arena of overlapping and sometimes divergent interests can present logjams for the successful resolution of a natural resource damage claim. An example of this breakdown in cooperation occurred in Coeur d'Alene, Idaho. In the early 1990s, several mining companies settled claims related to natural resource damage with the state of Idaho and several Native American tribes.76 In 1996, however, the mining companies were sued by federal trustees in a separate natural resource damage action.77 While the district court has yet to rule on motions by several defendants to dismiss the federal claims based on the earlier settlements, the district court has determined that CERCLA does not prohibit more than one trustee from bringing a natural resource damage action.78 Thus, now in 2001, the mining companies who believed that they had settled their natural resource damage liability at this site in the early 1990s are busy defending themselves from a natural resource damage action brought by a federal natural resource damage trustee.79 Similarly, the problems caused by conflicting interests of natural resource damage trustees is clearly illustrated at the Fox River site in Wisconsin. The WDNR, as state trustee, and the FWS, as federal trustee, are both seeking damages for harm to jointly owned natural resources caused by PCB contamination of the Fox River. Over the objection of the FWS, the WDNR entered into an agreement with Fort James, one of the responsible parties [31 ELR 11366] at the site, to resolve Fort James' natural resource damage liability with the state for $ 7 million. In apparent retaliation for the WDNR's entering into its settlement with Fort James, the FWS released its own natural resource damage assessment that estimated that the costs to restore the natural resources at the site would run between $ 179-$ 333 million, well in excess of the WDNR's cost estimates. Because jointly owned natural resources are at issue at the Fox River site, the prohibition on double recovery may operate as a bar to the FWS' ability to recover damages from Fort James for damages to the jointly owned natural resources. Moreover, the remaining responsible parties will likely find it very difficult to enter into any type of cooperative agreement with the state or the federal natural resource damage trustees at the Fox River site due to the obvious conflict between the state and federal trustee. In addition, Fort James can probably be assured that the FWS is evaluating all its options in an effort to seek additional damages from Fort James for restoration of the natural resources at the site.80 As more natural resource damage cases are brought, the likelihood that multiple trustees will assert conflicting claims will probably increase. In these situations, responsible parties need to be cognizant of the conflicting interests of each trustee. For example, while settlement with one trustee does not always operate to resolve a responsible party's overall natural resource damage liability at a site, if jointly owned resources are involved, a settlement with one trustee may preclude other trustees from asserting natural resource damage claims for those same impacted natural resources. In light of these types of difficulties posed by multiple natural resource damage trustees, responsible parties must be extra diligent in addressing natural resource damages where jointly owned resources are at issue. For businesses faced with natural resource damage claims, the future remains one of uncertainty and chaos. We believe the development of more case law will improve industry's ability to effectively respond to these claims and hopefully will encourage trustees to work more cooperatively with each other and responsible parties. In the alternative, an improved regulatory scheme with businesses treated as equal partners with trustees would also progress the aims of federal, state, and tribal programs. Until change occurs, and possibly even then, businesses will continue to face the dilemma of suffering future natural resource damage liabilities as a result of past industrial progress. The legacy of the CERCLA program once again threatens to haunt business in the new century. [31 ELR 11367] (TABLE) *4*Designated State Natural Resource Trustees and Natural Resource Damage (NRD) State(NEW COLUMN)State Trustee(NEW COLUMN)NRD Statutory(NEW COLUMN)Comments (NEW COLUMN)(NEW COLUMN)Authority1 Alabama(NEW COLUMN)Commissioner(NEW COLUMN)ALA. CODE § (NEW COLUMN)Department of Conservation(NEW COLUMN)22-30A-4. (NEW COLUMN)and Natural Resources (NEW COLUMN)Montgomery AL 36130 (NEW COLUMN)334-242-3489 (fax) (NEW COLUMN)Department of Environmental (NEW COLUMN)Montgomery AL 36130-1463 (NEW COLUMN)334-409-0407 (fax) (NEW COLUMN)Tuscaloosa AL 35486-6999 (NEW COLUMN)205-349-2861 (fax) Alaska(NEW COLUMN)Commissioner(NEW COLUMN)ALASKA STAT. §(NEW COLUMN)Broad (NEW COLUMN)Alaska Department of Fish and(NEW COLUMN)37.14.450.(NEW COLUMN)definition of (NEW COLUMN)Game(NEW COLUMN)(NEW COLUMN)damages: (NEW COLUMN)1255 W. 8th St.(NEW COLUMN)ALASKA STAT. §(NEW COLUMN)"injury to or (NEW COLUMN)P.O. Box 25526(NEW COLUMN)46.03.822.(NEW COLUMN)loss of persons (NEW COLUMN)Juneau AK 99802-5526(NEW COLUMN)(NEW COLUMN)or property, (NEW COLUMN)907-465-4100 (ph)(NEW COLUMN)ALASKA STAT. §(NEW COLUMN)real or (NEW COLUMN)907-465-2332 (fax)(NEW COLUMN)46.03.824.(NEW COLUMN)personal, loss (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)of income, loss (NEW COLUMN)Commissioner(NEW COLUMN)(NEW COLUMN)of means of (NEW COLUMN)Alaska Department of Natural(NEW COLUMN)(NEW COLUMN)producing (NEW COLUMN)Resources(NEW COLUMN)(NEW COLUMN)income, or the (NEW COLUMN)400 Willoughby Ave.(NEW COLUMN)(NEW COLUMN)loss of an (NEW COLUMN)Juneau AK 99801-1724(NEW COLUMN)(NEW COLUMN)economic (NEW COLUMN)907-465-2400 (ph) - Juneau(NEW COLUMN)(NEW COLUMN)benefit." (NEW COLUMN)907-465-3886 (fax) (NEW COLUMN)907-269-7633 (ph) - Anchorage (NEW COLUMN)907-269-8918 (fax) (NEW COLUMN)Alaska Department of (NEW COLUMN)Environmental Conservation (NEW COLUMN)410 Willoughby Ave., Ste. 303 (NEW COLUMN)Juneau AK 99801-1724 (NEW COLUMN)907-465-5070 (fax) (NEW COLUMN)Alaska Department of Law (NEW COLUMN)Juneau AK 99881-0300 (NEW COLUMN)907-465-2075 (fax) Arizona(NEW COLUMN)Director(NEW COLUMN)ARIZ. REV. STAT. §(NEW COLUMN)Citizen may sue (NEW COLUMN)Arizona Department of(NEW COLUMN)49-264.(NEW COLUMN)Director of (NEW COLUMN)Environmental Quality (ADEQ)(NEW COLUMN)(NEW COLUMN)Environmental (NEW COLUMN)3033 N. Central Ave., 8th Fl.(NEW COLUMN)ARIZ. REV. STAT. §(NEW COLUMN)Quality for (NEW COLUMN)Phoenix AZ 85012-2774(NEW COLUMN)49-282.(NEW COLUMN)failing to (NEW COLUMN)602-207-2309 (ph)(NEW COLUMN)(NEW COLUMN)carry out (NEW COLUMN)602-207-2218 (fax)(NEW COLUMN)ARIZ. REV. STAT. §(NEW COLUMN)responsibilitie (NEW COLUMN)(NEW COLUMN)49-283.(NEW COLUMN)s under each (NEW COLUMN)Director(NEW COLUMN)(NEW COLUMN)year state (NEW COLUMN)Arizona Game and Fish(NEW COLUMN)ARIZ. REV. STAT. §(NEW COLUMN)treasurer must (NEW COLUMN)Department(NEW COLUMN)49-285.(NEW COLUMN)transfer $ 15 (NEW COLUMN)2221 W. Greenway Rd.(NEW COLUMN)(NEW COLUMN)million to the (NEW COLUMN)Phoenix AZ 85023-4399(NEW COLUMN)ARIZ. REV. STAT. §(NEW COLUMN)water quality (NEW COLUMN)602-789-3278 (ph)(NEW COLUMN)49-287.(NEW COLUMN)assurance (NEW COLUMN)602-789-3299 (fax)(NEW COLUMN)(NEW COLUMN)revolving fund. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)Funds may be (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)used for (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)assessing (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)destruction to (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)waters due to a (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)release. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)Not traditional (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)liability; only (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)strict and (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)several (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)liability; only (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)responsible for (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)their share of (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)cleanup costs. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)Director of (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)ADEQ may (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)recover for NRD (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)only (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)proportionate (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)share of (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)damages. Arkansas(NEW COLUMN)Director(NEW COLUMN)ARK. CODE ANN. § (NEW COLUMN)Department of Pollution(NEW COLUMN)8-7-512. (NEW COLUMN)Control and Ecology (NEW COLUMN)Little Rock AR 72219-8913 (NEW COLUMN)501-682-0798 (fax) California(NEW COLUMN)Director(NEW COLUMN)CAL. HARB. & NAV.(NEW COLUMN)"Damages" (NEW COLUMN)Department of Toxic Substance(NEW COLUMN)CODE §§ 293, 294.(NEW COLUMN)includes cost (NEW COLUMN)Control(NEW COLUMN)(NEW COLUMN)of cleanup and (NEW COLUMN)400 P St.(NEW COLUMN)CAL. HEALTH &(NEW COLUMN)cost of (NEW COLUMN)P.O. Box 806(NEW COLUMN)SAFETY CODE §(NEW COLUMN)wildlife (NEW COLUMN)Sacramento CA 95812-0806(NEW COLUMN)25189.1 (hazardous(NEW COLUMN)rehabilitation (NEW COLUMN)916-322-0504 (ph)(NEW COLUMN)waste).(NEW COLUMN)and injury to (NEW COLUMN)916-324-1788 (fax)(NEW COLUMN)(NEW COLUMN)natural (NEW COLUMN)(NEW COLUMN)CAL. HEALTH &(NEW COLUMN)resources or (NEW COLUMN)Director(NEW COLUMN)SAFETY CODE §(NEW COLUMN)wildlife, (NEW COLUMN)Department of Fish and Game(NEW COLUMN)25301.(NEW COLUMN)including loss (NEW COLUMN)1416 9th St., 12th Fl.(NEW COLUMN)(NEW COLUMN)of use of (NEW COLUMN)Sacramento CA 95814(NEW COLUMN)CAL. HEALTH &(NEW COLUMN)beaches, costs (NEW COLUMN)916-653-7667 (ph)(NEW COLUMN)SAFETY CODE §§(NEW COLUMN)to assess (NEW COLUMN)916-653-7387 (fax)(NEW COLUMN)25330, 25330.4,(NEW COLUMN)natural (NEW COLUMN)(NEW COLUMN)25351.1, 25351.2,(NEW COLUMN)resource (NEW COLUMN)(NEW COLUMN)25351.5, 25352,(NEW COLUMN)damages, loss (NEW COLUMN)(NEW COLUMN)25360.(NEW COLUMN)of taxes. Colorado(NEW COLUMN)Executive Director(NEW COLUMN)COLO. REV. STAT. §(NEW COLUMN)A special fund (NEW COLUMN)Colorado Department of Public(NEW COLUMN)25-16-104.6.(NEW COLUMN)is created for (NEW COLUMN)Health & Environment(NEW COLUMN)(NEW COLUMN)natural (NEW COLUMN)4300 Cherry Creek Dr. S.(NEW COLUMN)COLO. REV. STAT. §(NEW COLUMN)resource (NEW COLUMN)Denver CO 80246-1530(NEW COLUMN)25-16-104.7.(NEW COLUMN)damages called (NEW COLUMN)303-692-2011 (ph)(NEW COLUMN)(NEW COLUMN)"Natural (NEW COLUMN)303-691-7702 (fax)(NEW COLUMN)(NEW COLUMN)Resource Damage (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)Recovery Fund." (NEW COLUMN)Deputy Director(NEW COLUMN)(NEW COLUMN) (NEW COLUMN)Colorado Department of(NEW COLUMN)(NEW COLUMN)Annual (NEW COLUMN)Natural(NEW COLUMN)(NEW COLUMN)appropriation (NEW COLUMN)Resources(NEW COLUMN)(NEW COLUMN)by the general (NEW COLUMN)1313 Sherman St., Rm. 718(NEW COLUMN)(NEW COLUMN)assembly. (NEW COLUMN)303-866-2115 (fax) (NEW COLUMN)Colorado Department of Law (NEW COLUMN)1525 Sherman St., 5th Fl. (NEW COLUMN)303-866-5691 (fax) Connecticut(NEW COLUMN)Commissioner(NEW COLUMN)CONN. GEN. STAT. §§(NEW COLUMN)Person may be (NEW COLUMN)Department of Environmental(NEW COLUMN)22a-61, 22a-16a,(NEW COLUMN)liable for (NEW COLUMN)Protection(NEW COLUMN)22a-451.(NEW COLUMN)"damages equal (NEW COLUMN)79 Elm St.(NEW COLUMN)(NEW COLUMN)to one and (NEW COLUMN)Hartford CT 06106-5127(NEW COLUMN)CONN. GEN. STAT. §(NEW COLUMN)one-half times (NEW COLUMN)860-424-3010 (ph)(NEW COLUMN)22a-1331.(NEW COLUMN)the cost (NEW COLUMN)860-424-4078 (fax)(NEW COLUMN)(NEW COLUMN)incurred" . . . (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)if pollution (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)was negligently (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)caused and two (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)times the cost (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)if willfully (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)caused. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)Grants to (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)municipalities (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)to clean up (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)landfills where (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)hazardous waste (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)is disposed. Delaware(NEW COLUMN)Secretary(NEW COLUMN)DEL. CODE ANN. tit.(NEW COLUMN)Oil pollution (NEW COLUMN)Department of Natural(NEW COLUMN)7, § 6005.(NEW COLUMN)liability (NEW COLUMN)Resources and Environmental(NEW COLUMN)(NEW COLUMN)extends not (NEW COLUMN)Control(NEW COLUMN)Oil Pollution:(NEW COLUMN)only to natural (NEW COLUMN)89 Kings Hwy.(NEW COLUMN)DEL. CODE ANN. tit.(NEW COLUMN)resource (NEW COLUMN)Dover DE 19901(NEW COLUMN)7, § 6207.(NEW COLUMN)damages, but (NEW COLUMN)302-739-4403 (ph)(NEW COLUMN)DEL. CODE ANN. tit.(NEW COLUMN)lost profits (NEW COLUMN)302-739-6242 (fax)(NEW COLUMN)7, § 6208.(NEW COLUMN)due to injury (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)of natives. (NEW COLUMN)(NEW COLUMN)Hazardous Waste:(NEW COLUMN) (NEW COLUMN)(NEW COLUMN)DEL. CODE ANN. tit.(NEW COLUMN). AG may bring (NEW COLUMN)(NEW COLUMN)7, § 6308.(NEW COLUMN)action. (NEW COLUMN)(NEW COLUMN)DEL. CODE ANN. tit.(NEW COLUMN) (NEW COLUMN)(NEW COLUMN)7, § 6309.(NEW COLUMN). Any claimant (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)may bring (NEW COLUMN)(NEW COLUMN)Hazardous(NEW COLUMN)action for (NEW COLUMN)(NEW COLUMN)Substance:(NEW COLUMN)cleanup costs. (NEW COLUMN)(NEW COLUMN)DEL. CODE ANN. tit.(NEW COLUMN) (NEW COLUMN)(NEW COLUMN)7, § 9103.(NEW COLUMN). Any claimant (NEW COLUMN)(NEW COLUMN)DEL. CODE ANN. tit.(NEW COLUMN)may bring (NEW COLUMN)(NEW COLUMN)7, § 9104.(NEW COLUMN)action if they (NEW COLUMN)(NEW COLUMN)DEL. CODE ANN. tit.(NEW COLUMN)utilize natural (NEW COLUMN)(NEW COLUMN)7, § 9105.(NEW COLUMN)resources. (NEW COLUMN)(NEW COLUMN)DEL. CODE ANN. tit.(NEW COLUMN) (NEW COLUMN)(NEW COLUMN)7, § 9109.(NEW COLUMN). Governor may (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)bring action (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)for injury to (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)or destruction (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)of natural (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)resources. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN). Any claimant (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)if he/she (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)derives at (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)least 15% of (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)income from (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)utilizing (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)natural (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)resources. Columbia(NEW COLUMN)Bureau of Environmental (NEW COLUMN)Department of Health and (NEW COLUMN)Environmental Health (NEW COLUMN)51 North St. NE, 5th Fl. (NEW COLUMN)Washington DC 20002 (NEW COLUMN)202-535-1363 (fax) (NEW COLUMN)Deputy Under Secretary of (NEW COLUMN)Defense (Environmental (NEW COLUMN)3400 Defense Pentagon, (NEW COLUMN)Washington DC 20301-3400 (NEW COLUMN)Attn: Patricia Ferrebee (NEW COLUMN)703-697-7413 (fax) (NEW COLUMN)Regional Manager Atlantic (NEW COLUMN)Damage Assessment Center, Rm. (NEW COLUMN)1305 East-West Hwy. (NEW COLUMN)Silver Spring MD 20910-3281 (NEW COLUMN)301-713-3038, ext. 186 (ph) (NEW COLUMN)301-713-4387 (fax) Florida(NEW COLUMN)Secretary(NEW COLUMN)FLA. STAT. ch.(NEW COLUMN). Provides (NEW COLUMN)Florida Department of(NEW COLUMN)376.121.(NEW COLUMN)specific (NEW COLUMN)Environmental Protection(NEW COLUMN)(NEW COLUMN)factors to be (NEW COLUMN)Marjorie Stoneman Douglas(NEW COLUMN)FLA. STAT. chs.(NEW COLUMN)used to (NEW COLUMN)Bldg.(NEW COLUMN)403.121, .131,(NEW COLUMN)calculate (NEW COLUMN)3900 Commonwealth Blvd., M.S.(NEW COLUMN).141, .161.(NEW COLUMN)damage (NEW COLUMN)10(NEW COLUMN)(NEW COLUMN)assessment. (NEW COLUMN)Tallahassee FL 32399-3000(NEW COLUMN)(NEW COLUMN) (NEW COLUMN)850-488-1554 (ph)(NEW COLUMN)(NEW COLUMN). Provides (NEW COLUMN)850-487-3267 (fax)(NEW COLUMN)(NEW COLUMN)amount of (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)compensation (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)for damage to (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)natural (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)resources: (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)- $ 10/sq. ft. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)coral reef (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)impacted. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)- $ 1/sq. ft. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)mangrove (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)impacted. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)- $ .50/sq. ft. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)of live bottom, (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)oyster reefs, (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)warm rock (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)impacted. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)- $ .05/sq. ft. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)of sand bottom (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)or mud flats (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)impacted. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN). Compensation (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)for the death (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)of any animal (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)designated by (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)rule as (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)endangered by (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)the Florida (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)Game and Local (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)Water Fish (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)Commission is (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)$ 10,000 and (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)any animal (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)listed as (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)threatened is (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)$ 5,000. (NEW COLUMN)(NEW COLUMN)(NEW COLUMN). Restoration (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)is joint and (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)several. If (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)damage is (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)divisible and (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)may be (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)attributed to a (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)particular (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)violator, then (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)proportional. Georgia(NEW COLUMN)Commissioner(NEW COLUMN)GA. CODE ANN. § (NEW COLUMN)Department of Natural(NEW COLUMN)12-5-51. (NEW COLUMN)Floyd Tower E., Ste. 1252(NEW COLUMN)GA. CODE ANN. § (NEW COLUMN)205 Butler St.(NEW COLUMN)12-5-53. (NEW COLUMN)404-656-0770 (fax) (NEW COLUMN)Environmental Protection (NEW COLUMN)Department of Natural (NEW COLUMN)Floyd Tower E., Ste. 1154 (NEW COLUMN)404-651-5778 (fax) Hawaii(NEW COLUMN)Deputy Director for(NEW COLUMN)HAW. REV. STAT. § (NEW COLUMN)Environmental(NEW COLUMN)128D-6. (NEW COLUMN)Health and Chairman for the (NEW COLUMN)Emergency Response Commission (NEW COLUMN)808-586-4368 (fax) Idaho(NEW COLUMN)Governor(NEW COLUMN)IDAHO CODE § (NEW COLUMN)State of Idaho(NEW COLUMN)49-2209. (NEW COLUMN)208-334-2175 (fax) (NEW COLUMN)Department of Natural (NEW COLUMN)524 S. 2d St., Rm. 400 (NEW COLUMN)Springfield IL 62701 (NEW COLUMN)217-785-9236 (fax) (NEW COLUMN)Environmental Protection (NEW COLUMN)1201 N. Grand Ave. E. (NEW COLUMN)Springfield IL 62794-9276 (NEW COLUMN)217-782-9039 (fax) Indiana(NEW COLUMN)Chief of Staff(NEW COLUMN)IND. CODE §(NEW COLUMN). References (NEW COLUMN)Department of Natural(NEW COLUMN)13-25-4-8.(NEW COLUMN)CERCLA and (NEW COLUMN)Resources(NEW COLUMN)(NEW COLUMN)provides that (NEW COLUMN)402 W. Washington St., W256(NEW COLUMN)(NEW COLUMN)if a person is (NEW COLUMN)Indianapolis IN 46204(NEW COLUMN)(NEW COLUMN)liable under (NEW COLUMN)317-232-4020 (ph)(NEW COLUMN)(NEW COLUMN)CERCLA, then (NEW COLUMN)317-233-6811 (fax)(NEW COLUMN)(NEW COLUMN)liable under (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)Indiana's law. (NEW COLUMN)Department of Environmental (NEW COLUMN)100 N. Senate IGCN-13 (NEW COLUMN)Indianapolis IN 46206-0615 (NEW COLUMN)317-233-6647 (fax) Iowa(NEW COLUMN)Director(NEW COLUMN)IOWA CODE § (NEW COLUMN)Department of Natural(NEW COLUMN)455B.392. (NEW COLUMN)Des Moines IA 50319 (NEW COLUMN)515-281-6794 (fax) Kansas(NEW COLUMN)Secretary(NEW COLUMN)KAN. STAT. ANN. § (NEW COLUMN)Kansas Department of Health(NEW COLUMN)65-3453a. (NEW COLUMN)and Environment(NEW COLUMN)KAN. STAT. ANN. § (NEW COLUMN)400 SW 8th St., Ste. 200(NEW COLUMN)65-3454a. (NEW COLUMN)Topeka KS 66603-3930(NEW COLUMN)KAN. STAT. ANN. § (NEW COLUMN)785-296-0461 (ph)(NEW COLUMN)65-3455. (NEW COLUMN)785-368-6368 (fax)(NEW COLUMN)KAN. STAT. ANN. § (NEW COLUMN)(NEW COLUMN)65-7011 (NEW COLUMN)(NEW COLUMN)(chemicals). Kentucky(NEW COLUMN)Commissioner(NEW COLUMN)KY. REV. STAT. ANN.(NEW COLUMN). Defenses to (NEW COLUMN)Natural Resources and(NEW COLUMN)§ 224.01-400.(NEW COLUMN)liability are (NEW COLUMN)Environmental Protection(NEW COLUMN)(NEW COLUMN)those that are (NEW COLUMN)Cabinet(NEW COLUMN)(NEW COLUMN)available under (NEW COLUMN)Department for Environmental(NEW COLUMN)(NEW COLUMN)CERCLA §§ (NEW COLUMN)Protection(NEW COLUMN)(NEW COLUMN)107(a)-(d) and (NEW COLUMN)663 Teton Trail(NEW COLUMN)(NEW COLUMN)113(f). (NEW COLUMN)Frankfort KY 40601 (NEW COLUMN)502-564-6193 (fax) Louisiana(NEW COLUMN)Secretary(NEW COLUMN)LA. REV. STAT. ANN.(NEW COLUMN). State must (NEW COLUMN)Louisiana Department of(NEW COLUMN)§ 2205.(NEW COLUMN)prepare an (NEW COLUMN)Wildlife and Fisheries(NEW COLUMN)(NEW COLUMN)inventory of (NEW COLUMN)P.O. Box 98000(NEW COLUMN)LA. REV. STAT. ANN.(NEW COLUMN)the current (NEW COLUMN)Baton Rouge LA 70898-9000(NEW COLUMN)§ 2454.(NEW COLUMN)conditions of (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)natural (NEW COLUMN)Secretary(NEW COLUMN)LA. REV. STAT. ANN.(NEW COLUMN)resources. (NEW COLUMN)Louisiana Department of(NEW COLUMN)§ 2480.(NEW COLUMN) (NEW COLUMN)Environmental Quality(NEW COLUMN)(NEW COLUMN). Provides (NEW COLUMN)P.O. Box 82215(NEW COLUMN)LA. REV. STAT. ANN.(NEW COLUMN)specific duties (NEW COLUMN)Baton Rouge LA 70884-2215(NEW COLUMN)§ 2489.(NEW COLUMN)for trustee. (NEW COLUMN)Louisiana Department of (NEW COLUMN)Baton Rouge LA 70804-9396 Maine(NEW COLUMN)Commissioner(NEW COLUMN)ME. REV. STAT. ANN.(NEW COLUMN). Court may (NEW COLUMN)Department of Inland(NEW COLUMN)tit. 38, § 348.(NEW COLUMN)order (NEW COLUMN)Fisheries and Wildlife(NEW COLUMN)(NEW COLUMN)restoration of (NEW COLUMN)State House Station 41(NEW COLUMN)ME. REV. STAT. ANN.(NEW COLUMN)any area (NEW COLUMN)Augusta ME 04333(NEW COLUMN)tit. 38, § 1366.(NEW COLUMN)affected by any (NEW COLUMN)207-287-5202 (ph) - for(NEW COLUMN)(NEW COLUMN)action or (NEW COLUMN)nonmarine fish and wildlife(NEW COLUMN)ME. REV. STAT. ANN.(NEW COLUMN)inaction that (NEW COLUMN)207-287-6395 (fax)(NEW COLUMN)tit. 38, § 1367.(NEW COLUMN)violates any (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)environmental (NEW COLUMN)Commissioner(NEW COLUMN)(NEW COLUMN)statutes or (NEW COLUMN)Department of Marine(NEW COLUMN)(NEW COLUMN)regulation. (NEW COLUMN)Resources(NEW COLUMN)(NEW COLUMN) (NEW COLUMN)State House Station 21(NEW COLUMN)(NEW COLUMN). Court shall (NEW COLUMN)Augusta ME 04333(NEW COLUMN)(NEW COLUMN)order (NEW COLUMN)207-624-6550 (ph) - for(NEW COLUMN)(NEW COLUMN)restoration if (NEW COLUMN)marine fish and wildlife and(NEW COLUMN)(NEW COLUMN)a willful (NEW COLUMN)other marine resources(NEW COLUMN)(NEW COLUMN)violation has (NEW COLUMN)207-624-6024 (fax)(NEW COLUMN)(NEW COLUMN)occurred. (NEW COLUMN)Commissioner(NEW COLUMN)(NEW COLUMN). If a person (NEW COLUMN)Maine Department of(NEW COLUMN)(NEW COLUMN)settles their (NEW COLUMN)Conservation(NEW COLUMN)(NEW COLUMN)liability with (NEW COLUMN)22 State House Station(NEW COLUMN)(NEW COLUMN)the state, it (NEW COLUMN)Augusta ME 04333(NEW COLUMN)(NEW COLUMN)will not be (NEW COLUMN)207-287-2211 (ph)(NEW COLUMN)(NEW COLUMN)liable in a (NEW COLUMN)207-287-2400 (fax)(NEW COLUMN)(NEW COLUMN)contribution (NEW COLUMN)(NEW COLUMN)(NEW COLUMN)action for (NEW COLUMN)Commissioner(NEW COLUMN)(NEW COLUMN)response costs, (NEW COLUMN)Department of Environmental(NEW COLUMN)(NEW COLUMN)response (NEW COLUMN)Protection(NEW COLUMN)(NEW COLUMN)actions, or (NEW COLUMN)State House Station 17(NEW COLUMN)(NEW COLUMN)natural (NEW COLUMN)Augusta ME 04333(NEW COLUMN)(NEW COLUMN)resource (NEW COLUMN)207-287-2812 (ph) - for all(NEW COLUMN)(NEW COLUMN)damages. (NEW COLUMN)207-287-2814 (fax) Maryland(NEW COLUMN)Secretary(NEW COLUMN)MD. CODE ANN., (NEW COLUMN)Department of the Environment(NEW COLUMN)ENVIR. § 7-220, (NEW COLUMN)2500 Broening Hwy.(NEW COLUMN)221-222. (NEW COLUMN)Baltimore MD 21224 (NEW COLUMN)410-631-3888 (fax) (NEW COLUMN)Department of Natural (NEW COLUMN)Tawes State Office Bldg. (NEW COLUMN)Annapolis MD 21401 (NEW COLUMN)410-260-8111 (fax) Massachuset(NEW COLUMN)Secretary(NEW COLUMN)MASS. GEN. LAWS. ts(NEW COLUMN)Executive Office of(NEW COLUMN)ch. 21E, § 5. (NEW COLUMN)Environmental Affairs(NEW COLUMN) (NEW COLUMN)251 Causeway St., Ste. 900(NEW COLUMN)MASS. GEN. LAWS. (NEW COLUMN)Boston MA 02114-2316(NEW COLUMN)ch. 21E, § 11. (NEW COLUMN)617-626-1181 (fax) Michigan(NEW COLUMN)Director(NEW COLUMN)MICH. COMP. LAWS § (NEW COLUMN)Michigan Department of(NEW COLUMN)13A.20118. (NEW COLUMN)Environmental Quality(NEW COLUMN) (NEW COLUMN)Hollister Bldg., 6th Fl.(NEW COLUMN)MICH. COMP. LAWS § (NEW COLUMN)106 W. Allegan(NEW COLUMN)324.20126. (NEW COLUMN)517-241-7401 (fax) (NEW COLUMN)G. Mennan Williams Bldg., 7th (NEW COLUMN)517-373-3042 (fax) Minnesota(NEW COLUMN)Commissioner(NEW COLUMN)MINN. STAT. § (NEW COLUMN)Department of Natural(NEW COLUMN)115B.03. (NEW COLUMN)Resources(NEW COLUMN) (NEW COLUMN)500 Lafayette Rd.(NEW COLUMN)MINN. STAT. §§ (NEW COLUMN)St. Paul MN 55155(NEW COLUMN)115B.04, 115B.20. (NEW COLUMN)651-296-4799 (fax) (NEW COLUMN)Pollution Control Agency (NEW COLUMN)520 Lafayette Rd. N. Mississippi(NEW COLUMN)Executive Director(NEW COLUMN)MISS. CODE ANN. § (NEW COLUMN)Mississippi Department of(NEW COLUMN)49-17-43. (NEW COLUMN)Environmental Quality(NEW COLUMN) (NEW COLUMN)P.O. Box 20305(NEW COLUMN)MISS. CODE ANN. § (NEW COLUMN)Jackson MS 39289-1305(NEW COLUMN)49-17-68. (NEW COLUMN)601-961-5794 (fax) Missouri(NEW COLUMN)Director(NEW COLUMN)MO. REV. STAT. § (NEW COLUMN)Department of Natural(NEW COLUMN)260.505. (NEW COLUMN)Resources(NEW COLUMN) (NEW COLUMN)P.O. Box 176(NEW COLUMN)MO. REV. STAT. § (NEW COLUMN)Jefferson City MO 65102(NEW COLUMN)260.530. (NEW COLUMN)573-751-4732 (ph)(NEW COLUMN) (NEW COLUMN)573-751-7627 (fax)(NEW COLUMN)MO. REV. STAT. § (NEW COLUMN)(NEW COLUMN)260.535. (NEW COLUMN)(NEW COLUMN)MO. REV. STAT. § (NEW COLUMN)(NEW COLUMN)260.580. Montana(NEW COLUMN)Director(NEW COLUMN)MONT. CODE ANN. § (NEW COLUMN)Department of Environmental(NEW COLUMN)75-10-704. (NEW COLUMN)Quality(NEW COLUMN) (NEW COLUMN)1520 E. 6th Ave., Metcalf(NEW COLUMN)MONT. CODE ANN. § (NEW COLUMN)Bldg.(NEW COLUMN)75-10-715. (NEW COLUMN)P.O. Box 200901(NEW COLUMN) (NEW COLUMN)Helena MT 59620-0901(NEW COLUMN)MONT. CODE ANN. § (NEW COLUMN)406-444-2544 (ph)(NEW COLUMN)75-10-726. (NEW COLUMN)406-444-9526 (fax) (NEW COLUMN)Department of Fish, Wildlife, (NEW COLUMN)Helena MT 59620-0701 (NEW COLUMN)406-444-4952 (fax) (NEW COLUMN)Department of Natural (NEW COLUMN)Resources and Conservation (NEW COLUMN)Helena MT 59620-1601 (NEW COLUMN)406-444-2684 (fax) Nebraska(NEW COLUMN)Director(NEW COLUMN)NEB. REV. STAT. §§ (NEW COLUMN)Nebraska Department of(NEW COLUMN)81-1506, -1514. (NEW COLUMN)Environmental Quality (NEW COLUMN)Lincoln NE 68509-8922 (NEW COLUMN)402-471-2909 (fax) Nevada(NEW COLUMN)Administrator(NEW COLUMN)NEV. REV. STAT. § (NEW COLUMN)Nevada Division of(NEW COLUMN)459.585. (NEW COLUMN)Carson City NV 89706 (NEW COLUMN)775-687-5856 (fax) New(NEW COLUMN)Commissioner(NEW COLUMN)N.H. REV. STAT. Hampshire(NEW COLUMN)Department of Environmental(NEW COLUMN)ANN. § 147-A:9. (NEW COLUMN)Services(NEW COLUMN) (NEW COLUMN)Six Hazen Dr.(NEW COLUMN)N.H. REV. STAT. (NEW COLUMN)P.O. Box 95(NEW COLUMN)ANN. § 147-B:10a. (NEW COLUMN)Concord NH 03302-0095 (NEW COLUMN)603-271-2867 (fax) (NEW COLUMN)Department of Fish and Game (NEW COLUMN)603-271-1438 (fax) New Jersey(NEW COLUMN)Commissioner(NEW COLUMN)N.J. STAT. ANN. §(NEW COLUMN)Includes lost (NEW COLUMN)Department of Environmental(NEW COLUMN)13:1E-62-106.(NEW COLUMN)income due to (NEW COLUMN)Protection(NEW COLUMN)(NEW COLUMN)damages to real (NEW COLUMN)P.O. Box 402(NEW COLUMN)N.J. STAT. ANN. §(NEW COLUMN)property. (NEW COLUMN)401 East St.(NEW COLUMN)58:10-12.11g. (NEW COLUMN)609-292-7695 (fax) New Mexico(NEW COLUMN)Office of the New Mexico(NEW COLUMN)N.M. STAT. ANN. §(NEW COLUMN)Contingent fee (NEW COLUMN)Natural Resources Trustee(NEW COLUMN)75-7-3.(NEW COLUMN)attorneys bring (NEW COLUMN)610 Gold Ave.(NEW COLUMN)N.M. STAT. ANN. §(NEW COLUMN)natural (NEW COLUMN)SW, Ste. 236(NEW COLUMN)75-7-4.(NEW COLUMN)resource damage (NEW COLUMN)Albuquerque NM 87102(NEW COLUMN)(NEW COLUMN)actions. (NEW COLUMN)505-246-2232 (fax) New York(NEW COLUMN)Acting Commissioner(NEW COLUMN)N.Y. ENVTL. (NEW COLUMN)Department of Environmental(NEW COLUMN)CONSERV. LAW §§ (NEW COLUMN)Conservation(NEW COLUMN)37-0107, 71-1941. (NEW COLUMN)518-457-7744 (fax) North(NEW COLUMN)Secretary(NEW COLUMN)N.C. GEN. STAT. §§ Carolina(NEW COLUMN)Department of Environment and(NEW COLUMN)143-215.3, .72, (NEW COLUMN)Natural Resources(NEW COLUMN).83, .87, .90, .91. (NEW COLUMN)1601 Mail Service Ctr. (NEW COLUMN)(Archdale Bldg., 512 N. (NEW COLUMN)Raleigh NC 27699-1601 (NEW COLUMN)919-715-3060 (fax) North(NEW COLUMN)State Health Officer(NEW COLUMN)N.D. CENT. CODE §§ Dakota(NEW COLUMN)Department of Health(NEW COLUMN)61-28-06, -07. (NEW COLUMN)600 E. Boulevard Ave. (NEW COLUMN)2d Fl. Judicial Wing (NEW COLUMN)Bismarck ND 58505-0200 (NEW COLUMN)701-328-4727 (fax) Ohio(NEW COLUMN)Director(NEW COLUMN)OHIO REV. CODE ANN. (NEW COLUMN)Ohio Environmental Protection(NEW COLUMN)§§ 3745.12, .13. (NEW COLUMN)614-644-3184 (fax) Oklahoma(NEW COLUMN)Secretary of the Environment(NEW COLUMN)OKLA. STAT. tit. (NEW COLUMN)3800 N. Classen Blvd.(NEW COLUMN)63, §§ 1-2016 to (NEW COLUMN)Oklahoma City OK 73118(NEW COLUMN)-2021. (NEW COLUMN)405-530-8995 (ph)(NEW COLUMN) (NEW COLUMN)405-530-8999 (fax)(NEW COLUMN)OKLA. STAT. tit. (NEW COLUMN)(NEW COLUMN)23, §§ 5, 68, 72. (NEW COLUMN)Director of Environmental (NEW COLUMN)Office of the Secretary of (NEW COLUMN)3800 N. Classen Blvd. (NEW COLUMN)Oklahoma City OK 73118 (NEW COLUMN)405-530-8999 (fax) Oregon(NEW COLUMN)Director(NEW COLUMN)OR. REV. STAT. §§ (NEW COLUMN)Department of Environmental(NEW COLUMN)466.205, .890. (NEW COLUMN)503-229-6762 (fax) Pennsylvani(NEW COLUMN)Secretary(NEW COLUMN)35 PA. CONS. STAT. a(NEW COLUMN)Department of Environmental(NEW COLUMN)ANN. §§ 6020.102, (NEW COLUMN)Protection(NEW COLUMN).301, .302, .507, (NEW COLUMN)P.O. Box 2063(NEW COLUMN).702, .901, .901, (NEW COLUMN)Harrisburg PA 17105-2063(NEW COLUMN).902, .1104. (NEW COLUMN)717-705-4980 (fax) Rhode(NEW COLUMN)Director(NEW COLUMN)R.I. GEN. LAWS §§ Island(NEW COLUMN)Department of Environmental(NEW COLUMN)2-1-21, -1-23. (NEW COLUMN)Providence RI 02908 (NEW COLUMN)401-222-3162 (fax) South(NEW COLUMN)Commissioner(NEW COLUMN)S.C. CODE ANN. §§ Carolina(NEW COLUMN)Department of Health and(NEW COLUMN)48-1-50, -1-90. (NEW COLUMN)Environmental Control (NEW COLUMN)803-898-3323 (fax) (NEW COLUMN)Department of Natural (NEW COLUMN)Rembert C. Dennis Bldg. (NEW COLUMN)803-734-6310 (fax) (NEW COLUMN)South Carolina State House (NEW COLUMN)803-734-9413 (fax) South(NEW COLUMN)Secretary(NEW COLUMN)S.D. CODIFIED LAWS Dakota(NEW COLUMN)Department of Environment and(NEW COLUMN)§§ 34A-12-1 to (NEW COLUMN)Natural(NEW COLUMN)-12-17. (NEW COLUMN)523 E. Capitol Ave. (NEW COLUMN)Pierre SD 57501-3181 (NEW COLUMN)605-773-6035 (fax) Tennessee(NEW COLUMN)Commissioner(NEW COLUMN)TENN. CODE ANN. §§ (NEW COLUMN)Department of Environment and(NEW COLUMN)68-46-205, -46-206. (NEW COLUMN)401 Church St., 21st Fl. (NEW COLUMN)Nashville TN 37243-0435 (NEW COLUMN)615-532-0120 (fax) Texas(NEW COLUMN)Commissioner(NEW COLUMN)TEX. REV. CIV.(NEW COLUMN). rebuttable (NEW COLUMN)Texas General Land Office(NEW COLUMN)STAT. ANN. §(NEW COLUMN)presumption for (NEW COLUMN)P.O. Box 12873(NEW COLUMN)40.002-.003.(NEW COLUMN)amount of (NEW COLUMN)Austin TX 78711-2873(NEW COLUMN)(NEW COLUMN)damages. (NEW COLUMN)512-463-5001 (ph)(NEW COLUMN)TEX. REV. CIV.(NEW COLUMN) (NEW COLUMN)512-475-1415 (fax)(NEW COLUMN)STAT. ANN. §(NEW COLUMN). statute lists (NEW COLUMN)(NEW COLUMN)40.107.(NEW COLUMN)very specific (NEW COLUMN)Executive Director(NEW COLUMN)(NEW COLUMN)duties of (NEW COLUMN)Texas Natural Resource(NEW COLUMN)TEX. REV. CIV.(NEW COLUMN)trustee. (NEW COLUMN)Conservation Commission(NEW COLUMN)STAT. ANN. §(NEW COLUMN) (NEW COLUMN)P.O. Box 13087(NEW COLUMN)40.202 (Oil).(NEW COLUMN). sets limits (NEW COLUMN)Austin TX 78711-3087(NEW COLUMN)(NEW COLUMN)for damages (NEW COLUMN)512-239-2523 (ph)(NEW COLUMN)TEX. REV. CIV.(NEW COLUMN)based on how (NEW COLUMN)512-239-4814 (fax)(NEW COLUMN)STAT. ANN. §(NEW COLUMN)much oil spilt. (NEW COLUMN)(NEW COLUMN)40.203. (NEW COLUMN)Texas Parks and Wildlife (NEW COLUMN)4200 Smith School Rd. (NEW COLUMN)512-912-7160 (fax) Utah(NEW COLUMN)Executive Director(NEW COLUMN)UTAH CODE ANN. § (NEW COLUMN)Department of Environmental(NEW COLUMN)26-11-8. (NEW COLUMN)Salt Lake City UT 84116 (NEW COLUMN)801-536-0061 (fax) Vermont(NEW COLUMN)Secretary(NEW COLUMN)VT. STAT. ANN. tit. (NEW COLUMN)Agency of Natural Resources(NEW COLUMN)10, § 1274. (NEW COLUMN)103 S. Main St. - Center(NEW COLUMN) (NEW COLUMN)Bldg.(NEW COLUMN)VT. STAT. ANN. tit. (NEW COLUMN)Waterbury VT 05671(NEW COLUMN)10, § 1283. (NEW COLUMN)802-244-1102 (fax) Virginia(NEW COLUMN)Secretary(NEW COLUMN)VA. CODE ANN. § (NEW COLUMN)Natural Resources(NEW COLUMN)10.1-1406. (NEW COLUMN)804-371-8333 (fax) Washington(NEW COLUMN)Director(NEW COLUMN)WASH. REV. CODE §§ (NEW COLUMN)Department of Ecology(NEW COLUMN)70.010-.070. (NEW COLUMN)Olympia WA 98504-7600 (NEW COLUMN)360-407-6989 (fax) West(NEW COLUMN)Director(NEW COLUMN)W. VA. CODE §§ Virginia(NEW COLUMN)Division of Natural Resources(NEW COLUMN)20-5A-19a, 20-2-5a. (NEW COLUMN)State Capitol Bldg. # 3, Rm. (NEW COLUMN)1900 Kanawha Blvd. (NEW COLUMN)Charleston WV 25305 (NEW COLUMN)304-558-2768 (fax) Wisconsin(NEW COLUMN)Secretary(NEW COLUMN)WIS. STAT. § (NEW COLUMN)Department of Natural(NEW COLUMN)23.095. (NEW COLUMN)Resources(NEW COLUMN) (NEW COLUMN)101 S. Webster St.(NEW COLUMN)WIS. STAT. §§ (NEW COLUMN)P.O. Box 7921(NEW COLUMN)144.76,.265. (NEW COLUMN)Madison WI 53707-7921 (NEW COLUMN)608-266-2121 (ph) - ask for (NEW COLUMN)secretary, Jeri Dahmen (NEW COLUMN)608-266-6983 (fax) Wyoming(NEW COLUMN)Director(NEW COLUMN)WYO. STAT. ANN. § (NEW COLUMN)Game and Fish Department(NEW COLUMN)35-11-901. (NEW COLUMN)307-777-4699 (fax)(END TABLE) 1. 42 U.S.C. § 9101(16). 2. Karl S. Lytz, Recent Development in Superfund Natural Resource Damages Claims, Environmental Hot Topics for Business Lawyers, American Bar Association Business Law Section Spring Meeting (March 2001). 3. 132 F.3d 90, 28 ELR 20495 (D.C. Cir. 1998). See also Lytz, supra note 2. 4. 42 U.S.C. § 9607(a)(4)(c), ELR STAT. CERCLA § 107(a)(4)(c). 5. United States v. Mottolo, No. 83-547-B, slip op. at 2-3 (D.N.H. July 29, 1993). 6. 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA § 107(f)(1). 7. See Dale C. Young, National Resource Damages: Perspectives on Cooperative Assessment and Restoration of Natural Resources, NAT'L ASS'N OF ATT'YS GENERAL: NAT'L ENVTL. ENFORCEMENT J., Apr. 2000, at 3. 8. Id. 9. 43 C.F.R. pt. 11. 10. U.S. Department of the Interior, Natural Resource Damage Assessments, 51 Fed. Reg. 27674 (Aug. 1, 1986) and 53 Fed. Reg. 5166 (Feb. 22, 1988). 11. 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989). 12. 88 F.3d 1191, 26 ELR 21489 (D.C. Cir. 1996). 13. Trustees Prepare to Unveil Proposed Natural Resource Damage Assessment Rule, SUPERFUND REP., Dec. 25, 2000, at 27. 14. § 11.250(d)(1)-(2). All references are to sections of the Draft Proposed Rule that circulated in April 1999 and was published in Existing Clinton Administration to Unveil Policy for Resource Damage Cleanup, INSIDE EPA, Dec. 22, 2000. 15. § 11.250(d)(6). 16. § 11.250(d)(4)-(5). 17. § 11.250(a). 18. §§ 11.277, 11.280. 19. § 11.301(b). 20. § 11.304. 21. § 11.226(c)(1)(i). 22. § 11.75-.79. 23. § 11.101(a). 24. § 11.376(a). 25. § 11.101(c). 26. §§ 11.101(a), 11.07(b)(1)(iii). 27. §§ 11.277, 11.301(a). 28. §§ 11.06, 11.380. 29. Young, supra note 7. 30. 214 F.3d 1104, 30 ELR 20654 (9th Cir. 2000). 31. Trustees Prepare to Unveil Proposed Natural Resource Damage Assessment Rule, supra note 13. 32. 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA § 107(a)(4)(C) and 33 U.S.C. § 1321(f)(4), ELR STAT. FWPCA § 311(f)(4). 33. Gerald F. George, Litigation of Claims for Natural Resource Damages, ALI-ABA Course of Study (June 26, 2000). 34. Industry Raises Concerns About DOI Natural Resource Damage Rule, SUPERFUND REP., Jan. 22, 2001, at 5. 35. 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA § 107(a)(4)(C). 36. Id. § 9607(f)(2)(A), ELR STAT. CERCLA § 107(f)(2)(A). 37. See 43 C.F.R. pt. 11. 38. 42 U.S.C. § 9607(f)(3), ELR STAT. CERCLA § 107(f)(3). 39. Id. § 9607(a), ELR STAT. CERCLA § 107(a). 40. 43 C.F.R. § 11.15(a)(1)(ii). Of course, the Draft Proposed Rule would relax these causation requirements. See discussion on the Draft Proposed Natural Resource Damage Assessment Rule, supra. 41. 42 U.S.C. § 9607(f)(2)(c), ELR STAT. CERCLA § 107(f)(2)(c). 42. Id. § 9607(f)(1), ELR STAT. CERCLA § 107(f)(1). 43. Similarly, tribal-owned natural resources are those natural resources that exist on tribally owned land. 44. 42 U.S.C. § 9601(16), ELR STAT. CERCLA § 101(16). 45. WILLIAM H. RODGERS, HANDBOOK ON ENVIRONMENTAL LAW 171 (1977 & Supp. 1984). 46. Id. at 62. 47. See Cynthia Rodgers, Making CERCLA Natural Resource Damage Regulations Work: The Use of the Public Trust Doctrine and Other State Remedies, 18 ELR 10299 (Aug. 1988). 48. Individual states may rely on a methodology or individual statutes to recover for damages to natural resources that would not have been identified by the research methodology employed as part of this Dialogue. In order to confirm whether additional state authority exists for the recovery of damages to natural resources, individuals are advised to contact the appropriate state natural resource damage trustee. 49. IND. CODE ANN. § 13-25-4-8 (West 2000). 50. ARIZ. REV. STAT. ANN. § 49-264 (West 2000). Pursuant to the Arizona statute, the Arizona Legislature must transfer the sum of $ 15 million into a fund that can be used by the state natural resource damage trustee. See also COLO. REV. STAT. § 25-16-104.7 (2000) ("Any moneys recovered through litigation by the state acting as trustee of natural resources pursuant to the federal act . . . shall be credited to the natural resource damages recovery fund. Moneys in the fund shall be subject to annual appropriation by the general assembly."). 51. See State v. General Elec. Co., No. CV-99-07917 (N.M.2d Jud. Dist. Ct. Aug. 2, 1999). 52. 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA § 107(f)(1). 53. N.J. ADMIN. CODE tit. 7 § 26E-1.1 et seq. (West 2001). 54. Id. § 26 E-1.1. 55. RODGERS, supra note 45, at 171. 56. See Rodgers, supra note 47. 57. RESTATEMENT (SECOND) OF TORTS § 821B (2000). 58. See Rodgers, supra note 47, at 10299. 59. Id. 60. 132 F.3d at 90, 28 ELR at 20495. 61. Lytz, supra note 2. 62. United States v. ASARCO Inc., No. CV 96-0122-N-EJO, 1999 U.S. Dist. LEXIS 18924 (D. Idaho Sept. 30, 1999). 63. Lytz, supra note 2. 64. Id. 65. Id. 66. 42 U.S.C. § 9613(g)(1), ELR STAT. CERCLA § 113(g)(1). 67. Id. 68. 132 F.3d at 90, 28 ELR at 20495. 69. See id. at 93, 28 ELR at 20496. 70. 214 F.3d at 1106, 30 ELR at 20654. 71. Id. at 1107, 30 ELR at 20655. 72. Id. at 1107-08, 30 ELR at 20655. 73. The same conflict can arise where tribal natural resource damage trustees also assert an ownership interest in the particular resources that are damaged. There are over 800 tribal natural resource damage trustees spread across all of the 50 states. 74. See 40 C.F.R. § 300.615; 15 C.F.R. § 990.14(a); 43 C.F.R. § 11.32(a)(1) (2000). 75. 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA § 107(f)(1); 33 U.S.C. § 2706(d)(3), ELR STAT. OPA § 1006(d)(3) (Oil Pollution Act). 76. See George, supra note 33. 77. Id. 78. Id. 79. See United States v. ASARCO Inc., No. CV-96-0122-N-EJL (D. Idaho Mar. 31, 1998). 80. In a recent development, however, that may signal a more cooperative approach in addressing the natural resource damage issues facing the Fox River, federal, state, and tribal trustees have entered into a cooperative agreement with two responsible parties for the payment of $ 40,000 to provide funding for interim site cleanup and natural resource restoration projects. 1. The cited statutory provisions comprise the most relevant statutory provisions the authors could obtain. Some states do not have a CERCLA-type natural resource damage statute, but have other statutes that permit the state to recover for natural resource damages caused by underground storage tanks, oil spills, and the like. 31 ELR 11356 | Environmental Law Reporter | copyright © 2001 | All rights reserved |