Natural Resource Trustees Ask for Declaratory Relief for Future Assessment Costs

Natural resource damage trustees at the Hanford Nuclear Reservation in Washington state — three Indian Tribes[1] and two states[2] — are seeking declaratory relief from the responsible parties at the Site for future natural resource damages and assessment costs. If allowed to proceed, the case would be the first to grant Trustees prospective relief and the first to compel responsible parties to conduct an assessment. Confederated Tribes and Bands of the Yakama Nation v. United States[3].

The Hanford Site

The Hanford Nuclear Reservation (“Hanford”), which was a production site for nuclear materials, is divided into six areas.[4] In June 1988, the EPA proposed to list four of these six areas as sites on the National Priorities List (“NPL”) to be cleaned up under CERCLA.[5] The four areas were subsequently added to the NPL on October 4, 1989.[6] EPA further divided the four listed Areas, for investigation and remediation purposes, into dozens of Operable Units (“OUs”). EPA has selected remedial actions for all OUs in two Areas and some, but not all, OUs in two other Areas.[7] In 1993, the Hanford Trustees formed a Trustee Council[8] and began coordinating with the Department of Energy (“DOE”), the federal agency responsible for performing cleanup at Hanford.

The Claims for Declaratory Relief

The Yakama Tribe filed suit against the United States, the DOE, and the U.S. Department of Defense (collectively, the “U.S.”) in September 2002. The complaint, in its current form, seeks past and future response costs, a declaratory judgment of liability for natural resource injury assessment costs, natural resource damages, and an order compelling the U.S. to comply with risk assessment standards that will adequately assess the risk posed to Yakama tribal members and others, and to the environment.[9]

In March 2006 the state of Washington and the Nez Perce Tribe intervened in the Yakama Tribe’s lawsuit, followed in July 2006 by the state of Oregon and the Umatilla Tribe.[10] The intervening Trustees seek only declaratory judgment of liability for natural resource injury assessment costs.[11] At issue is the construction of CERCLA section 113(g)(2) and CERCLA section 113(g)(1), which provide that:

[i]n any such action described in this subsection [an action for response costs or damages], the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages.

42 U.S.C. 9613(g)(2).

… In no event may an action for damages under this chapter … be commenced (i) prior to 60 days after the Federal or State natural resource trustee provides to the President and the potentially responsible party a notice of intent to file suit, or (ii) before selection of the remedial action if the President is diligently proceeding with a remedial investigation and feasibility study under section 9604(b) of this title or section 9620 of this title (relating to Federal facilities).

42 U.S.C. § 9613(g)(1).

The U.S. Motion to Dismiss: NRD as the “Residue” of a Cleanup Action?

On October 2, 2006 the U.S. moved to dismiss the Hanford Trustees’ claims for declaratory judgment of liability for assessment costs, and the Yakama Tribe’s claim for natural resource damages, for Areas where a final remedy has not been selected. The U.S. argued that claims for natural resource damages may not be brought until the final remedy is selected at federal facilities or NPL sites as long as EPA is diligently proceeding with a Remedial Investigation/Feasibility Study (“RI/FS”).[12] Because EPA has not selected the final remedy at each of the OUs in the areas at issue, the U.S. argued, the Hanford Trustees’ claims for assessment costs-which are a component of natural resource damages[13]-and the Yakama Tribe’s claims for natural resource damages, are premature.

Further, the U.S. argued, under CERCLA’s statutory framework, natural resource damage claims are a “residue of the cleanup action,” based on the condition of the natural resource after the cleanup, and therefore cannot properly be assessed until the remedial action has been selected and the likely effects of the remedy on the resource have been taken into account.[14]

In response, the Hanford Trustees argued that the plain language of CERCLA § 113(g)(2) creates a cause of action for declaratory judgment and the recovery of natural resource injury assessment costs as they accrue; and that the Hanford Trustees’ claims are ripe for adjudication because: (i) the State trustees have provided notice of their intent to sue to the President and DOE; and (ii) remedial actions have been selected at OUs where EPA is diligently proceeding with its RI/FSs.[15] Specifically, the Trustees argued that Congress intended injury assessment costs to be recoverable in the same manner, and to the same extent, as response costs, [16] and that all the policy reasons that support permitting the recovery of response costs as they accrue also support allowing injury assessment costs to be recovered as they accrue.[17]

In response to the U.S.’s argument that a selected remedy has to be final to support a claim under CERCLA section 113(g)(1), the Hanford Trustees again rely on the plain language of CERCLA. Pointing to other sections of CERCLA where Congress distinguished between “remedies” and “final remedies,”[18] the Trustees argued that if Congress had intended to modify “remedial action” in section 113(g)(1) with “final” it certainly knew how to do so. Absent such Congressional intent, the Hanford Trustees argued, an interim remedial action will suffice to trigger a claim under section 113.[19]

Finally, the Hanford Trustees argued that sound policy considerations warrant allowing costs incurred assessing natural resource damages to be recovered in an ongoing basis in order to facilitate the integration of natural resource damage assessment and restoration activities with response and remediation activities.[20]

Conclusion

If the Hanford Trustees prevail in this action, the substantial costs of performing a natural resource damage assessment — often in the millions of dollars — could potentially be shifted from the prosecution to the defense. The cost of the assessments has been one reason Trustees have not brought more natural resource damage claims. Freeing the Trustees from those costs would reduce that impediment. Oral argument is scheduled for April 27, 2007.