Proposed Rule2023-00927
Natural Resource Damages for Hazardous Substances
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 19, 2023
Issuing agencies
Interior Department
Abstract
The Office of Restoration and Damage Assessment (ORDA) is seeking comments and suggestions from state, tribal, and federal natural resource co-trustees, other affected parties, and the interested public on revising the simplified Type A procedures in the regulations for conducting natural resource damage assessments and restoration (NRDAR) for hazardous substance releases.
Full Text
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<title>Federal Register, Volume 88 Issue 12 (Thursday, January 19, 2023)</title>
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[Federal Register Volume 88, Number 12 (Thursday, January 19, 2023)]
[Proposed Rules]
[Pages 3373-3375]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00927]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 11
[Docket No. DOI-DOI-2022-0016; 23XD1618EN, DS61600000,
DMNHQ0000.000000]
RIN 1090-AB26
Natural Resource Damages for Hazardous Substances
AGENCY: Office of Restoration and Damage Assessment, Interior.
ACTION: Advance notice of proposed rulemaking; request for public
comment.
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SUMMARY: The Office of Restoration and Damage Assessment (ORDA) is
seeking comments and suggestions from state, tribal, and federal
natural resource co-trustees, other affected parties, and the
interested public on revising the simplified Type A procedures in the
regulations for conducting natural resource damage assessments and
restoration (NRDAR) for hazardous substance releases.
DATES: We will accept comments through March 20, 2023.
ADDRESSES: You may submit comments to ORDA on this advance notice of
proposed rulemaking (ANPRM); request for public comment by any of the
following methods. Please reference the Regulation Identifier Number
(RIN) 1090-AB26 in your comments.
<bullet> Electronically: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the
``Search'' box enter ``DOI-2022-0016.'' Follow the instructions to
submit public comments. We will post all comments.
<bullet> Hand deliver or mail comments to the Office of Restoration
and Damage Assessment, U.S. Department of the Interior, 1849 C Street
Northwest, Mail Stop/Room 2627, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Emily Joseph, Director, Office of
Restoration and Damage Assessment at (202) 208-4438 or email to
<a href="/cdn-cgi/l/email-protection#a9ccc4c0c5d0f6c3c6daccd9c1e9c0c6da87cdc6c087cec6df"><span class="__cf_email__" data-cfemail="0e6b636762775164617d6b7e664e67617d206a616720696178">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: We are proposing to revise the simplified
(Type A) procedures for assessment of natural resource damages
resulting from releases of hazardous substances. The Department of the
Interior has previously developed two types of natural resource damage
assessment regulations: Standard procedures for simplified assessments
requiring minimal field observations (Type A Rule); and site-specific
procedures for detailed assessments in individual cases (Type B Rule).
The Type B Rule was last revised in 2008 to emphasize natural
resource restoration over economic damages, resolve a timing
inconsistency, and respond to two previous Court decisions addressing
the regulations: State of Ohio v. U.S. Department of the Interior, 880
F.2d 432 (D.C. Cir. 1989); and Kennecott Utah Copper Corp. v. U.S.
Department of the Interior, 88 F.3rd 1191 (D.C. Cir. 1996).
The Type A Rule was last revised in November 1997. It provides two
distinct formulas for modeling damages for natural resource injuries
caused by hazardous substance releases to coastal and marine
environments and Great Lakes environments, respectively. In accordance
with the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (CERCLA) 42 U.S.C. 9601 et seq.,
damages calculated in accordance with Type A or Type B procedures are
entitled to a ``rebuttable presumption'' of correctness in any
administrative or judicial proceeding. The rebuttable presumption for
the Type A procedure under the current version of the rule is limited
to damages of $100,000 or less.
Background
Since its promulgation, the Type A Rule has rarely been utilized to
resolve CERCLA Natural Resource Damage Assessment and Restoration
(NRDAR) claims. This may be partly due to the Type A Rule's restrictive
scope--to two specific aquatic environments when relatively low-impact,
single substance spills occur. Additionally, the model equation for
each Type A environment is the functional part of the rule itself--with
no provisions to reflect evolving toxicology, ecology, technology, or
other scientific understanding without a formal amendment to the Type A
Rule each time a parameter is modified. The result is an inefficient
and inflexible rule that is not currently useful as a means to resolve
NRDAR claims and promote natural resource restoration.
[[Page 3374]]
For these reasons, the Department is now seeking to modernize the Type
A process and develop a more flexible and enduring rule than what is
provided by the two existing static models.
The Department is proposing to re-formulate the Type A Rule as a
procedural structure for negotiated settlements by utilizing tools
tailored to incidents of smaller scale and scope. We believe that this
aligns better with the original statutory purpose of providing a
streamlined and simplified assessment process as a companion to the
more complex Type B Rule--to reduce transaction costs and expedite
restoration in a broader range of less complex and contentious cases.
Our objective is to essentially formalize beneficial practices that
have evolved since the 1997 promulgation of the Type A Rule.
Specifically, Trustees have utilized well-established methodologies
such as habitat equivalency analysis (HEA), resource equivalency
analysis (REA), and other relatively simple models to assess natural
resource injury in smaller incidents that do not necessarily warrant
the more prescriptive Type B procedures.
Pursuing a case under the new Type A would be initiated by the
Trustees involved in the case. The new Type A Rule would be intended
for use when the potentially responsible parties (PRPs) and all
trustees with jurisdiction over the injured natural resources agree
that the simplified procedures of the rule provide an appropriate means
of assessing and resolving the claim. An assessment of damages
performed cooperatively in this manner would be entitled to a
rebuttable presumption of correctness when undergoing administrative or
judicial review.
However, rather than limiting the rule's applicability to a narrow
range of cases and a pre-determined, static model, the Department of
the Interior (Department) proposes to consider ways to expand the
rule's scope through a structured process that will utilize a range of
methods that have become widely used and accepted since the original
rule was formulated, including existing habitat and resource
equivalency analyses, and benefits transfers from similar cases. These
methodologies are referenced in the current version of the CERCLA NRDAR
rule (See 43 CFR 11.83) and have proven adaptable and functional enough
to support negotiated resolution of a wide range of NRDAR claims that
have withstood public and judicial scrutiny over the past two decades.
We are seeking additional public input on what specific methodologies
or procedures could be utilized under a revised Type A Rule.
In recognition of the evidentiary constraints of models when
compared to more robust site-specific observation and information, the
current Type A Rule limits the amount of damages that could be eligible
for the Type A rebuttable presumption to $100,000 or less. We recognize
that $100,000--un-adjusted for more than 25 years of inflation from
1997--likely represents an extremely narrow range of present day NRDAR
claims. More importantly, it would be challenging for NRDAR trustees
and PRPs to engage in even a streamlined cooperative process that is
cost-effective in the context of $100,000 in total damages.
Accordingly, we are seeking public input on the appropriate amount of
damages eligible for a rebuttable presumption when utilizing a new Type
A process.
We are also seeking public input on potential non-monetary
limitations for using the Type A Rule--including whether the Type A
Rule can be utilized at a site with multiple PRPs, and whether PRPs
voluntarily participating in a Type A process need to agree to pay the
reasonable cost of that process. Additionally, we are seeking public
input on whether the revised Type A should include reasonable
assessment costs within the cap applicable for the Type A Rule, and
whether there should be a time limit--accompanied by a tolling
agreement--to how long a Type A process could take. Finally, we are
seeking public input as to whether the Type A claim should continue to
be eligible to be combined with a Type B assessment or with other Type
A processes at the same site--which could result in applying the Type A
Rule to only certain discrete natural resource categories at a site.
The Department anticipates that NRDAR claims resolved through the
revised Type A Rule will be subject to a 30-day public notice and
review process before finalization. As part of this public notice and
review, NRDAR trustees would make available the application of the
model they relied on (including the data inputs) and any relevant
supporting information. As with the current rule, Trustees would
consider, and when appropriate, respond to any public comments. Any
changes to the voluntary agreement as a result of public comment would
also be approved by the settling PRPs in order to finally resolve the
claim.
Consistent with CERCLA section 111(i) (42 U.S.C. 9611(i)), Trustees
would continue to expend damages recovered under the Type A Rule
pursuant to a Restoration Plan. Trustees would also continue to have
the ability to select appropriate restoration projects without being
restricted to selecting the general restoration methods used by the
Type A equivalency model they employ to calculate their NRDAR claim.
Trustees would maintain the discretion to spend recovered sums on other
actions to restore, replace, or acquire the equivalent of injured
resources or services.
Description of Information Requested
This advance notice of proposed rulemaking seeks comments on the
questions posed above to re-formulate the Type A Rule, including: (1)
which assessment methodologies would be appropriate for use in
simplified assessments under a revised Type A rule, (2) the amount of
damages eligible for a rebuttable presumption when utilizing a new Type
A process, (3) whether to include reasonable costs of assessment within
the total cap for application of the Type A Rule, (4) whether PRPs
voluntarily participating in a Type A process need to agree to pay the
reasonable cost of that process, (5) whether the Type A Rule is
appropriate for a site with multiple PRPs, and (6) how long a Type A
process could last. The Department would also appreciate comments that
address interest in using revised Type A procedures, along with
suggestions that improve the efficiency and cost effectiveness of the
NRDAR Type A process.
Public Comment Procedures
The Department is not obligated to consider comments that we
receive after the close of the comment period for this ANPRM, or
comments that are delivered to an address other than those listed in
this notice. After the comment period for this ANPRM closes, the
Department will review all comment submissions. Upon consideration, the
Department may publish a notice of proposed rulemaking.
We are particularly interested in receiving comments and
suggestions about the topics identified in the Description of
Information Requested section. Written comments that are specific,
explain the rationale for the comment or suggestion, address the issues
outlined in this notice, and where possible, refer to specific
statutes, existing regulations, case law, or NRDAR practices are most
useful.
Before including your address, phone number, email address or other
personal identifying information in your comment, you should be aware
that your entire comment--including your personal identifying
information--might be made publicly available at any time.
[[Page 3375]]
While you may ask us in your comment to withhold your personal
identifying information from public review we cannot guarantee that we
will do so.
(Authority: 42 U.S.C. 9601, secs. 104, 107, 111(I), 122)
Emily Joseph,
Director, Office of Restoration and Damage Assessment.
[FR Doc. 2023-00927 Filed 1-18-23; 8:45 am]
BILLING CODE 4334-63-P
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