The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. 9601 et seq., and the Clean Water Act (CWA), 33 U.S.C. 1251-1376, provide that natural resource trustees may assess damages to natural resources resulting from a discharge of oil or a release of a hazardous substance covered under CERCLA or the CWA and may seek to recover those damages. This part supplements the procedures established under the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, for the identification, investigation, study, and response to a discharge of oil or release of a hazardous substance, and it provides a procedure by which a natural resource trustee can determine compensation for injuries to natural resources that have not been nor are expected to be addressed by response actions conducted pursuant to the NCP. The assessment procedures set forth in this part are not mandatory. However, they must be used by Federal or State natural resource trustees in order to obtain the rebuttable presumption contained in section 107(f)(2)(C) of CERCLA. This part applies to assessments initiated after the effective date of this final rule.
[53 FR 5171, Feb. 22, 1988]
Notes of Decisions
State of New Mexico v. Gen. Elec., 467 F.3d 1223 (10th Cir. 2006).
“” 43 C.F.R. § 11.10 . While the assessment procedures set out in Part 11 are not mandatory, a State NRT must use them to obtain the rebuttable presumption contained in § 9607(f)(2)(C).”
New York v. Next Millennium Realty, LLC, 160 F. Supp. 3d 485 (E.D.N.Y 2016).
· cites it 2× “Although the assessment procedures provided therein are not mandatory, see 43 C.F.R. § 11.10 , “they must be used by Federal or State natural resource trustees in order to obtain the rebuttable presumption contained in section 107(f)(2)(C) of CERCLA.”
Utah Ex Rel. Utah State Dep't of Health v. Kennecott Corp., 801 F. Supp. 553 (D. Utah 1992).
“made by a Federal or State trustee in accordance with the regulation promulgated under section 9651 of this title shall have the force and effect of a rebuttable presumption on behalf of the trustee_” 43 C.F.R. 11.10 provides: “The assessment procedures set forth in this part…”
Nat'l Ass'n of Mfrs. v. United States Dep't of the Interior, 134 F.3d 1095 (D.C. Cir. 1998).
“See 43 C.F.R. § 11.10 (1996). If a trustee decides that a formal assessment is needed to effect recovery of NRD, the trustee must complete four administrative steps: (1) Preassessment, (2) Assessment Plan, (3) Assessment and (4) Post Assessment.”
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