Natural Resource Damage Assessment

Natural resource damages (NRD) represent a potential corporate environmental liability beyond any cleanup or response actions. Understanding NRDA and its relationship to federal statutes (such as CERCLA and OPA) and to state statutes is challenging and often frustrating to our clients. Damages can be very large; interactions with federal, state, and tribal trustees are often complex and uncertain; cooperative arrangements with trustees are possible yet problematic; and settlement versus litigation decisions are crucial. Adding to this complexity, NRDA regulations and interpretations of those under federal and state statutes have evolved over time as have interpretations of the regulations and the NRDA process itself.

Throughout this evolution Exponent scientists have been deeply involved in the NRDA process and in using our extensive case experience—past and present—to assist clients in developing and implementing successful strategies for their current cases. We have been part of NRDA teams working with company technical staff and support attorneys in resolving and defending claims. In the past some of us have also worked in trustee organizations moving claims forward. We are part of industry trade groups tracking regulations and best practices across the U.S., and we have a deep understanding of the NRDA process, optimal ways to engage with trustees, and the technical issues and science that may be brought to bear in each case.
Exponent actively assist clients with the “life cycle” of NRDA, including:

1. Strategic scientific consulting: Evaluating potential and actual NRDA claims to advise clients on their exposure and how to proceed

Exponent’s team of scientists have vast experience in the evaluation of NRDA claims and the development and implementation of NRDA strategies and assessment plans. Our experience allows us to strategically advise clients about the implications that scientific information collected early in the process has on later stages of the case, including response, RI/FS, NRDA, and other civil (e.g., CWA) and criminal claims.

2. Strategic trustee interactions: Helping clients to understand trustee positions

Having worked with and, in some cases, as NRDA trustees in the development of NRDA policies and assessment techniques as well as in numerous NRD cases, Exponent understands the importance of being able to effectively predict and control the NRDA process based on interpersonal dynamics. We use this experience in connection with technical approaches developed over years of experience to provide defensible positions that allow for successful negotiations and scope management. Our experienced staff include former trustees and others who have formed decades-long working relationships with many local, state, and federal trustees.

3. Baseline assessment: Proactively defining the injury assessment/service loss starting point

From preparation of ephemeral data collection plans and baseline sampling to data optimization and decision-making, Exponent has the experience to recognize appropriate baseline metrics and identify critical environmental factors, such as changing climate conditions, affecting baseline resource services. We understand the value of baseline characterization when quantifying injury.

4. Injury assessment: Source identification, causation, chemistry/exposure, toxicology, and ecological impact

An NRDA injury assessment relies on multiple lines of evidence. Exponent has the capabilities across a range of scientific disciplines such as forensic chemistry, toxicology, ecology, and biology to critically evaluate data and accurately quantify ecological injury. As NRDAs become more data intensive, our ability to manage, mine, and analyze all of these data helps us provide clients with an understanding of impacts and the need for restoration. Not only do we help clients effectively engage with NRDA trustees, we also help them develop legal strategies backed by practical and defensible approaches.

5. Restoration scaling and planning

Exponent understands the value and mandate for considering restoration early on in the NRDA process. Our team is experienced in the use of habitat equivalency analysis (HEA), resource equivalency analysis (REA), and resource-to-resource and service-to-service scaling, among other techniques, for scaling injury and developing appropriate restoration alternatives.

6. Litigation support and expert testimony

Exponent’s experts have provided litigation support, including testimony at trial, in some of the largest NRD cases to date. This experience has placed us at the forefront of the evolution of NRDA strategies for litigation defense.

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