11.1 INTRODUCTION

To the public and the media, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or as it has been termed by the media, Superfund, is viewed as the regulating hammer that enables the federal government, and in many cases state agencies, the power to clean up the legacy of contamination and environmental impairment that has been caused by releases of hazardous substances, whether through accepted waste and material handling practices of past decades, or by accident, or by those who knowingly and willfully permitted such releases to the environment.

Most people view CERCLA as the tool to remedy these legacies of contamination either by having responsible parties perform or pay for the cleanup, or in cases where the responsible party no longer exists or is unknown, by using federal funds to achieve the clean up. However, there is another component of CERCLA, as well as a lesser-known regulatory statute, the Oil Pollution Act (OPA), that allows the federal government and state governments to seek reasonable compensation for injury to, destruction of, or loss of natural resources, including the reasonable costs of a damage assessment [CERLCA 101(b); 107(a)(4)(c); OPA 1001(5); 102(b)(2)].

Compensation of this kind is referred to as natural resource damages (NRDs), and relates to those resources held in trust for the public. Perhaps the NRD case of greatest notariety is that of the