James Periconi's experience as representative of New York's trustee for natural resources damages makes Periconi, LLC's NRD practice a natural for the firm. Currently involved in defending a private party against a more than $20 million claim by a state government with a sophisticated NRD program, the environmental attorneys at Periconi, LLC, together with Integral Consulting Inc., www.integral-corp.com, one of the nation's leading environmental engineering firms, have developed a strategy to maximize efficiency through collaborative efforts such as cooperative assessment agreements. The firm also represents several parties in federal court in a natural resources damages action brought in federal court by the New York State trustee for natural resources, the Commissioner of the New York State Department of Environmental Conservation (NYSDEC) seeking damages to perform an assessment and compensate the public for lost park usage.

What are Natural Resources Damages (NRDs)?

What are NRDs? In addition to seeking cleanup costs for environmental contamination, federal, state, and tribal governments are increasingly seeking recovery of NRDs. NRDs arise when environmental contamination injures or destroys natural resources such as land (especially public parks), wildlife, air, drinking water or groundwater, which deprives the public of the use of these resources. They include the cost to assess the NRDs through a Natural Resources Damages Assessment, or NRDA, the cost to restore the resources to a baseline condition, and compensation for the period – extending sometimes over decades – in which the resources were lost or injured. This last factor often results in compensation demands by government that often exceed cleanup costs themselves by one or even two orders of magnitude.

Recovery of NRDs

A variety of statutes provide for the recovery of NRDs, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as Superfund), the Oil Pollution Act, the Clean Water Act, and various state laws. A state environmental agency or the federal Environmental Protection Agency may choose to bring an NRD action that is either administrative or judicial in nature, and statutorily-designated natural resources trustees participate in the NRD process as well.

Natural Resources Trustees

Various governmental entities are designated as natural resources trustees on behalf of the public. For example, the National Oceanographic and Atmospheric Administration and the United States Fish and Wildlife Service are two examples of federal trustees, while the Commissioner of Environmental Conservation is New York State's designated natural resources trustee. Indian tribes may designate their own trustees for natural resources controlled or managed by the tribe, and trustees from any or all three levels of government may work together on a given NRD case.

NRD Claims & Cases

By their very nature, NRD claims involve a diverse group of stakeholders and a complex mix of legal, technical, political, and economic issues. But at its core, any NRD case must be data driven and analytically rigorous, with a clear baseline condition rigorously compared against the alleged injury. Accordingly, technical consultants, supported by a legal team, are critical players in any NRD case.

Additionally, as a former chief of New York State Superfund enforcement and the representative of the State of New York's natural resources trustee in one of New York State's first NRD cases, namely, the mammoth litigation brought by the City of New York to recover cleanup costs and NRDs at the New York City Landfills, James Periconi has the unique perspective of a former natural resources damages trustee representative, as well as a representative of industry clients in subsequent private practice.

From overseeing the design of cooperative or independent Natural Resources Damage Assessments, to negotiating a remedy or settlement, Periconi, LLC is equipped to guide both industry and trustee clients through the NRD process, whether judicial or administrative in nature.

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