United States: State-By-State Guide To NRD Programs In All 50 States And Puerto Rico

INTRODUCTION

States may pursue natural resource damage (NRD) claims pursuant to the key federal statutes or, in some cases, pursuant to independent state authority. Over the years, many states have played a critical role in the prosecution of NRD claims. Furthermore, as can be seen below, it is fair to say that state programs are evolving rapidly. Several state programs are fairly robust and many other states are currently considering increased NRD activity.

This guide provides an overview of the NRD programs in all 50 states plus Puerto Rico. The overview of each respective program includes a discussion of applicable statutory authority, principal state trustee(s), major matters and settlements where that information is available, contact information, and important reference material.

The information in this guide was generally derived from self-reporting by the state trustees. In 2006, Arnold & Porter contacted every state trustee and solicited information regarding the trustee's NRD program. Specifically, we requested information regarding the following: (i) the nature and history of the trustee's efforts, (ii) the number of employees involved and their roles, (iii) the state's NRD budget, (iv) the damage assessment methodologies used, (v) authority to employ private counsel, (vi) the types of injuries frequently seen, (vii) the amounts recovered in past actions, (viii) the major pending matters, (ix) whether the state was currently pursuing groundwater claims, and (x) the applicable state statutes, if any.

In general, the state trustees were very responsive and willing to provide information. Many state trustees responded in writing, although in some cases information was gathered by telephone. To the extent the trustee responded in writing, these responses are on file with the author. Additional information was obtained from the internet.

This 50-state guide was comprehensively updated in 2008, 2012, 2013, 2015, 2016, and most recently in July 2017. Arnold & Porter requested from each state information regarding recent developments and major matters. In addition, where possible, we updated contact information, delegation authority, staffing/budget data, and other aspects of the guide.

Brian Israel is Chair of Arnold & Porter's Environmental Practice Group. The author would like to thank Leigh Logan of Arnold & Porter for her assistance in updating this guide. Please contact the author if you would like to receive an update of this guide to NRD programs.

[1] Alabama

[a] Overview

The natural resource trustees in Alabama are the Commissioner of the Department of Conservation and Natural Resources (ADCNR) and the State Geologist of the Geological Survey of Alabama (GSA), with the Commissioner of ADCNR serving as the lead trustee. The State Lands Division serves as the state lead in developing and implementing Alabama's Natural Resource Damages Assessment program. The trustees do not have dedicated NRD staff but use staff members from within their departments as necessary. The state does not use private attorneys to bring NRD claims. Alabama's trustees prefer to use habitat based assessment methods, although other methods are employed as necessary. The state is considering implementing a groundwater program.

[b] Major Matters

Shelby County Train Derailment — In May 2006, a CSX train derailed in Shelby County, Alabama, resulting in a soybean spill into Little Creek, which flows into Yellow Leaf Creek. According to the state, this led to the damage of aquatic life, including fish, mussels, and snails. A cooperative settlement resulted in payment of $491,976 by CSX to the Fish and Wildlife Division of ADCNR, which will be used to compensate for the investigation and value of the aquatic loss. Additionally, a portion of the settlement will support propagation and stocking efforts of freshwater species such as mussels and snails.

Anniston PCB Site — The Anniston plant, located in and around Anniston, Alabama, allegedly produced PCBs from approximately 1929 to 1971. PCBs were allegedly disposed into landfills adjacent to the site and a nearby creek. The Anniston PCB Site is in the process of being remediated. NRD is currently being assessed as well. NRD trustees include ADCNR, GSA, and the U.S. Department of the Interior (DOI), as represented by the U.S. Fish and Wildlife Service (USFWS). A Stage I Assessment Plan was released in March 2010 and assessed the following resources for potential injury: surface water, groundwater, geological resources such as floodplain soils, and biological resources such as fish and birds.

Ciba-Geigy McIntosh Plant NPL Site — According to trustees—USFWS, the National Oceanic and Atmospheric Administration (NOAA), ADCNR, and GSA—historic disposal practices at the 1,500-acre Ciba-Geigy McIntosh Plant, located in McIntosh, Alabama, released hazardous substances—including DDT, DDE, and DDD—that contaminated soils, surface water, groundwater, and sediments in the Tombigbee River floodplain and Mobile Bay watershed. The site was listed on the National Priorities List in 1984. On October 2, 2013, a consent decree between the trustees and defendant BASF Corporation was entered, whereby BASF Corporation agreed to pay $5 million in total settlement costs, broken down as follows: $3.2 million to plan, implement, and oversee natural resource restoration projects in the Mobile Bay watershed; $500,000 to ADCNR for ecosystem restoration in the Mobile Bay watershed through support of the Alabama Aquatic Biodiversity Center; and $1.3 million to the federal trustees for past assessment costs.

Deepwater Horizon — On April 20, 2010, an explosion on the offshore drilling rig, Deepwater Horizon, caused a fire and led to the subsequent sinking of the rig into the Gulf of Mexico, resulting in the release of oil into the Gulf. The wellhead was capped in mid-July 2010. The natural resource trustees that are engaged in this matter include NOAA, DOI, U.S. Environmental Protection Agency, U.S. Department of Agriculture, ADCNR, GSA, Florida Department of Environmental Protection, Louisiana Coastal Protection and Restoration Authority, Louisiana Oil Spill Coordinator's Office, Louisiana Department of Environmental Quality, Louisiana Department of Wildlife and Fisheries, Louisiana Department of Natural Resources, Mississippi Department of Environmental Quality, Texas General Land Office, Texas Parks and Wildlife Department, and Texas Commission on Environmental Quality. Very shortly after the incident occurred, one of the responsible parties, BP Exploration & Production Inc. (BPXP), began engaging in cooperative studies with the trustees to assess NRD caused by the oil release. Technical Working Groups were created for potentially impacted natural resources, and over 160 cooperative studies were undertaken including for birds, marine mammals (e.g., dolphins), sea turtles, marshes, oysters, offshore water column, offshore benthic habitats, and human use. In April 2011, BPXP and the trustees entered into a Framework Agreement whereby BPXP committed to provide up to $1 billion toward early restoration projects to address NRD caused by the incident. Between 2012 and 2016, five phases of early restoration projects were approved by the trustees and BPXP, encompassing 65 projects at an estimated $866 million.

On April 4, 2016, a consent decree, which resolves the United States' Clean Water Act penalty claim against BPXP, all NRD claims of the United States and the five Gulf States, as well as certain other federal and state claims, was approved by the court in MDL 2179. Pursuant to the consent decree, BPXP will pay $8.1 billion over 15 years for NRD (which includes the $1 billion previously committed for early restoration), up to $700 million for adaptive management and to address natural resource conditions that are presently unknown, and $350 million for NRD assessment costs incurred by the trustees. The consent decree can be found here: https://www.justice.gov/enrd/file/838066/download.

In February 2016, the trustees released their Final Programmatic Damage Assessment and Restoration Plan and Final Programmatic Environmental Impact Statement. The plan allocates settlement funds to address habitat, water quality, living coastal and marine resources, recreational opportunities, and monitoring, adaptive management, and administrative oversight to support restoration implementation. For more information about this matter, see http://www.gulfspillrestoration.noaa.gov/ or http://www.gulfspillrestoration.noaa.gov/ or http://www.bp.com/en/global/corporate/press/pressreleases/bp-to-settle-federal-state-local-deepwater-horizon-claims.html.

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