Speaker 5: Richard O. Curley, Jr. of Holland & Hart LLP Page 1
Injury Assessment in CERCLA
NRD Cases: The Good, The Bad
and The Ugly
Richard Curley
Holland & Hart
Denver, CO
National Advanced Conference on
Natural Resource Damages Litigation
July 16, 2007
Types of CERCLA NRD
Assessments
Type A
Simplified assessment procedures requiring minimal
field observation 40 C.F.R. §11.33
Coastal & Marine
Great Lakes
Type B
Complex assessment procedures for individual cases
required by CERCLA Section 9651(c)(2)(B)
Have it Your Way
Trustees not required to follow DOI Rules, but must
comply with Rules to obtain rebuttable presumption
Focus here is upon Type B Assessments
Law Seminars International | Natural Resource Damages Litigation | 7/16-7/17/07 | Santa Fe, NM
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Speaker 5: Richard O. Curley, Jr. of Holland & Hart LLP Page 2
Why Focus on the Type B Rule?
It’s Where the Real Action is under
CERCLA
Any Port in a Storm
Overall Structure Logical and Contents
Generally Reasonable
Trustees Purport to Follow, in Whole or in
Part, at Many Large Sites
The Good-Injury Assessment
Under the Type B Rule
Injury Determination 40 CFR §§11.61-11.64
Define Injury
Determine Exposure Pathways
Identify Testing/Sampling Methods
Injury Quantification 40 CFR §§11.70-11.73
Service Reduction Determination
Baseline Conditions/Baseline Services Determination
Recoverability Analysis
Law Seminars International | Natural Resource Damages Litigation | 7/16-7/17/07 | Santa Fe, NM
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Speaker 5: Richard O. Curley, Jr. of Holland & Hart LLP Page 3
Examples of the Good
Services Focus
Baseline/Causation Focus
Certain Acceptance Criteria
Logical Structure/Procedures
Court’s Have Approved/Shown Deference
Many Trustees and PRPs View as
Useful/Credible
The Bad – Misapplication of Type B
Rule
Common Problem – Mischaracterizing
Baseline
Example: State of Montana’s CFR NRDA
Utilized Reference Stream Approach
Sanctioned by Type B Rule
Compared CFR Segments to
Reference/Control Stream Segments
Claimed that Paired Segments Were Similar
Absent Mining Impacts
Law Seminars International | Natural Resource Damages Litigation | 7/16-7/17/07 | Santa Fe, NM
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Speaker 5: Richard O. Curley, Jr. of Holland & Hart LLP Page 4
Law Seminars International | Natural Resource Damages Litigation | 7/16-7/17/07 | Santa Fe, NM
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Speaker 5: Richard O. Curley, Jr. of Holland & Hart LLP Page 5
The Bad – Misapplication of the
Type B Rule continued -
Common Problem – Extrapolating Injury
from Cellular or Sub-cellular Impacts
Examples: Fox River/Exxon
Reopener/Ashtabula
The Ugly – Intentional Disregard of
the Type B Rule
An Uncommon Problem?
Rigging an NRDA to Exaggerate the Alleged Injuries/Damages
Example: CFR NRD Litigation
“I found that one side can get away with murder in court by use of slight-of-hand illusionary
data of spurious methods and models, which judge accepted as “scientific.” The chance of
deceiving judge depends on expertise, knowledge and slight-of-hand illusionary skills of
opposing side.
...
The whole basis of contention [by the Trustee] lies with comparing a “control” stream with
sections of contaminated Clark Fk, to show what Clark Fk potential would be without
pollution from mining….
...
Such an assumption, of course, is an illusion… There is no way a control section can be
found to duplicate all the attributes desired.”
(March 22, 1991 Letter and Memo from Bob Behnke to Josh Lipton)
Law Seminars International | Natural Resource Damages Litigation | 7/16-7/17/07 | Santa Fe, NM
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