Does my settlement check include my property damage payment?
If you also filed a property damage claim, and it hasn’t been finalized by the time you receive your injury settlement, carefully check the release agreement for any language stating the settlement check includes your property damage payment.
What is a natural resource damage assessment (NRDA)?
One of the primary responsibilities of Trustees under both CERCLA and OPA is to assess the extent of injury to a natural resource and determine appropriate ways of restoring and compensating for that injury. A natural resource damage assessment (NRDA) is the process of collecting, compiling, and analyzing information to make these determinations.
Can natural resource trustees recover damages for lost use and non-use?
Courts have held that Natural Resource Trustees may recover damages for the public's lost use and non-use values, provided those damages can be reliably calculated. 13. When May the Hazardous Substance Superfund or the Oil Spill Liability Fund Be Used to Make Expenditures for Natural Resource Damages?
How are damages defined?
Damages are defined as injury to, destruction of, or loss of natural resources [CERCLA §§101 (6); 107 (a) (4) (C); 111 (b); OPA §§1001 (5); 1002 (b) (2)].
What is a natural resource damage assessment?
A natural resource damage assessment (NRDA) is the process of collecting, compiling, and analyzing information to make these determinations. Trustees have the option of using the methodologies prescribed by the Department of the Interior (DOI), 43 CFR Part 11, or the Department of Commerce's National Oceanic and Atmospheric Administration (NOAA), 15 CFR Part 990. The DOI regulations are to assess NRD under CERCLA, while the NOAA methodologies are applicable for NRDAs under OPA. NRDAs are underway in a variety of locations; many of which involve one or more Superfund sites.
Why is the assessment of natural resource damage (NRD) important?
The assessment of Natural Resource Damages (NRD) takes place following cleanup because cleanups sometimes also effectively restore habitat. Because the choices made in cleanup decisions can affect the amount of NRD, EPA coordinates with Trustee agencies on cleanup decisions. This coordination helps to inform EPA about the potential impacts ...
What is NRD in OPA?
NRD are for injury to, destruction of, or loss of natural resources, including the reasonable costs of a damage assessment [CERCLA §§101 (6); 107 (a) (4) (C); OPA §§1001 (5); 1002 (b) (2)]. The measure of damages is the cost of restoring injured resources to their baseline condition, compensation for the interim loss of injured resources pending recovery, and the reasonable cost of a damage assessment [ 43 CFR Part 11 ; 15 CFR Part 990].
What are natural resources?
Both CERCLA and OPA define "natural resources" broadly to include "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources..." Both statutes limit "natural resources" to those resources held in trust for the public, termed Trust Resources. While there are slight variations in their definitions, both CERCLA and OPA state that a "natural resource" is a resource "belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by" the United States, any State, an Indian Tribe, a local government, or a foreign government [CERCLA §101 (16); OPA §1001 (20) ].
What is the purpose of the assessment regulations?
The overall intent of the assessment regulations is to determine appropriate restoration and compensation for injuries to natural resources. If a Federal or State Trustee goes into Federal court and sues a potentially responsible party (PRP) for NRD under CERCLA, an assessment done in accordance with the DOI regulations is given the force and effect of a "rebuttable presumption" [CERCLA §107 (f) (2) (C)]. If a Federal, State, or Tribal Trustee sues a PRP for NRD under OPA, an assessment done in accordance with the NOAA regulations is given a rebuttable presumption [OPA §1006 (e) (2) ]. This means that the burden of persuasion in court shifts to the PRP. It will be the task of the PRP to disprove the Trustee's assessment.
Who is responsible for protecting natural resources?
Natural Resource Trustees. Under both CERCLA and OPA , responsibility for protection of natural resources falls with Federal, State, and Tribal Trustees. This is because no one individual "owns" a natural resource; rather, they are held in trust for the public.
Is the EPA a natural resource trustee?
EPA is not a Natural Resource Trustee, nor is it authorized to act on behalf of Natural Resource Trustees. Rather, under CERCLA and OPA, EPA shares with the U.S. Coast Guard the general responsibility for investigating and responding to contamination by hazardous substances or oil.
What is CERCLA damage?
Damages are defined as injury to, destruction of, or loss of natural resources [CERCLA §§101 (6); 107 (a) (4) (C); 111 (b); OPA §§1001 (5); 1002 (b) (2)]. The measure of damages under CERCLA and OPA is the cost of restoring injured natural resources to their baseline condition, compensation for the interim loss of injured resources pending recovery, and the reasonable costs of a damage assessment [CERCLA §§107 (a) (4) (C); 107 (f) (1); OPA §§1001 (5); 1002 (b) (2); 43 CFR §11.15; 15 CFR §990.62].
What is contingent valuation?
Contingent valuation is one of several methods used in NRDAs to quantitatively measure damages or scale restoration. The method relies on hypothetical questions posed by surveys to ascertain how much respondents would be willing to pay to preserve the natural resources or to reduce the amount of injury to resources caused by the release or discharge (Environmental and Natural Resource Economics, Tietenberg, 1992). Contingent valuation can be used to measure use values alone or use values plus non-use values. Its use to measure non-use value has been controversial. Natural Resource Trustees have rarely used it for this purpose.
What is oil spill liability trust fund?
These include, but are not limited to, the payment of costs incurred by Trustees in carrying out their functions under OPA Section 1006 for assessing NRD and for developing and implementing plans for the restoration, rehabilitation, replacement or acquisition of the equivalent of injured resources, as well as the payment of removal costs, including the costs of monitoring removal actions [26 U.S.C. §9509 (c) (1) (A)].
What is the use value of natural resources?
The term "use value" seeks to capture values for the public's use of natural resources, many of which are not actually traded in the marketplace, but can be assigned a dollar value. For example, consumptive value attributes a value to lost resource uses of sportsmen and tourists who would have taken wildlife in hunting or fishing pursuits, while non-consumptive uses include the ecosystem's value to photographers, bird watchers and other users.
Can a trustee sue for the same NRD twice?
Both CERCLA and OPA prohibit Trustees from recovering the same damages twice. This means that if a Trustee has received NRD for a particular natural resource loss or injury caused by a release or discharge, that Trustee cannot sue in the same or in a different court for additional NRD for the same loss or injury [CERCLA §107 (f) (1);
What are natural resources?
First, natural resources are defined broadly to include land, fish, wildlife, biota, air, water, groundwater, drinking water supplies and other such resources.
Can a natural resource be co-titled?
Yes. There may be multiple Natural Resource Trustees because of coexisting or contiguous natural resources or concurrent jurisdictions. Where there are multiple Trustees, they should coordinate and cooperate in carrying out their joint responsibilities [40 CFR §300.615 (a)]. Federal and State agencies and Indian Tribes may be co-Trustees for the same natural resource. For example, in cases where a CERCLA release could potentially impact migratory birds, the Department of the Interior (DOI) and a State could be co-Trustees.
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Six Tips for Negotiating the Property Damage Settlement of a Motor Vehicle
If your car was damaged as the result of a motor vehicle accident, you will inevitably be dealing with an insurance company when trying to recover for the loss. Typically, the insurance company will try to pay you as little as possible for the vehicle.
What is the tax rule for settlements?
Tax Implications of Settlements and Judgments. The general rule of taxability for amounts received from settlement of lawsuits and other legal remedies is Internal Revenue Code (IRC) Section 61 that states all income is taxable from whatever source derived, unless exempted by another section of the code. IRC Section 104 provides an exclusion ...
What is employment related lawsuit?
Employment-related lawsuits may arise from wrongful discharge or failure to honor contract obligations. Damages received to compensate for economic loss, for example lost wages, business income and benefits, are not excludable form gross income unless a personal physical injury caused such loss.
Is a settlement agreement taxable?
In some cases, a tax provision in the settlement agreement characterizing the payment can result in their exclusion from taxable income. The IRS is reluctant to override the intent of the parties. If the settlement agreement is silent as to whether the damages are taxable, the IRS will look to the intent of the payor to characterize the payments and determine the Form 1099 reporting requirements.
Is mental distress a gross income?
As a result of the amendment in 1996, mental and emotional distress arising from non-physical injuries are only excludible from gross income under IRC Section104 (a) (2) only if received on account of physical injury or physical sickness. Punitive damages are not excludable from gross income, with one exception.
Does gross income include damages?
IRC Section 104 explains that gross income does not include damages received on account of personal physical injuries and physical injuries.
Is punitive damages a gross income?
Punitive damages are not excludable from gross income, with one exception. The exception applies to damages awarded for wrongful death, where under state law, the state statue provides only for punitive damages in wrongful death claims. In these cases, refer to IRC Section 104 (c) which allows the exclusion of punitive damages. Burford v. United States, 642 F. Supp. 635 (N.D. Ala. 1986).
Introduction
CERCLA and Opa Statutory Authority
Natural Resources Defined
EPA's Role: Notification and Coordination
Natural Resource Trustees
Natural Resource Damage Assessments
- One of the primary responsibilities of Trustees under both CERCLA and OPA is to assess the extent of injury to a natural resource and determine appropriate ways of restoring and compensating for that injury. A natural resource damage assessment (NRDA) is the process of collecting, compiling, and analyzing information to make these determinations. T...
NRD Restorations