§15.6 NATURAL RESOURCE DAMAGEs LIABILITY UNDER OTHER LAWS
In addition to the NRD claim provisions of CERCLA, NRD claims may be available under a number of other laws, as discussed below.
(1) Federal laws
Federal laws imposing liability for NRD include the Federal Water Pollution Control Act, 33 U.S.C. §§1261-1387; Marine Protection, Research, and Sanctuaries Act of 1972, 16 U.S.C. §§1431-1445; the Oil Pollution Act of 1990, 33 U.S.C. §§2701-2761; and the Trans-Alaska Pipeline Authorization Act, 43 U.S.C. §§1651-1655. Although less frequently used than the CERCLA provisions, these federal statutes provide alternate avenues for recovery when CERCLA provisions may not apply to provide a remedy.
(a) Federal Water Pollution Control Act
Under the Federal Water Pollution Control Act, 33 U.S.C. §§1261-1387, owners or operators of vessels or onshore and offshore facilities that release oil and hazardous substances into U.S. navigable waters or near the shoreline can be held liable for NRD. 33 U.S.C. §1321(f)(4). The U.S. DOIs rules also apply to damage assessments under the Act.
(b) Marine Protection, Research, and Sanctuaries Act of 1972
Under the Marine Protection, Research, and Sanctuaries Act of 1972, 16 U.S.C. §§1431-1445, any person who destroys or injures a marine sanctuary resource is liable to the United States for response costs and damages resulting from the injury. See 16 U.S.C. §1443(a)(1).
(c) Oil Pollution Act of 1990
Under the Oil Pollution Act of 1990 (OPA), 33 U.S.C. §§2701-2761, each party responsible for a vessel or a facility from which oil is discharged into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for removal costs and NRD. A party may also face liability for damages for injury to personal property, including economic losses; damages for loss of subsistence use of natural resources; damages for lost profits; and damages for a states costs of providing extra services during removal. 33 U.S.C. §2702.
Trustees must assess NRD under the OPA according to NOAA rules, published in 1996 and upheld by the U.S. Court of Appeals for the District of Columbia Circuit (except for one provision giving trustees the authority to remove oil left behind by the EPA or the Coast Guard after those entities completed response actions). Gen. Elec. Co. v. U.S. Dept of Commerce, 128 F.3d 767 (D.C. Cir. 1997). The court found that NOAA had not explained the interrelationship between the trustees residual removal authority and the primary removal authority of EPA and the Coast Guard. Id. at 775. The court found that the trustees have input in the decision-making process by the EPA and the Coast Guard, and the proposed residual removal authority created ambiguity in ultimate responsibility for removal actions. The court noted that before a reviewing court would consider allowing any such authority, it would want to know not only that EPA and the Coast Guard agree that trustees should have residual removal authority, but also that the three agencies concur as to how they will coordinate removal activities. Id. The court therefore vacated the residual removal authority section of the rule, 15 C.F.R. §§990.10-.66. In 2002, NOAA issued clarifying amendments to the rules, addressing the issues raised by the court. See Natural Resources Damage Assessments, 67 Fed. Reg. 61,483 (Oct. 1, 2002).
Case law interpreting the NRD provisions of OPA is minimal. The majority of cases concern whether the trustee seeking damages satisfied the statutory requirement to present NRD claims at least 90 days prior to filing an action. In Johnson v. Colonial Pipeline Co., 830 F. Supp. 309 (E.D. Va. 1993), the court dismissed a private party claim under OPA arising out of an oil pipeline rupture for failure to follow the prerequisites of presentment. OPA calls for presentment of a claim to the responsible party and precludes commencement of an action until 90 days thereafter. 33 U.S.C. §2713. Plaintiffs also failed to meet the specificity requirements of an...
