Natural Resource Damage AssessmentsAdditional Type A Procedures

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 11

RIN 1090-AA51

Natural Resource Damage Assessments--Additional Type A Procedures

AGENCY: Department of the Interior.

ACTION: Notice of meeting.

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SUMMARY: The Department of the Interior is holding a public meeting to

discuss development of additional ``type A'' procedures for assessing

natural resource damages under the Comprehensive Environmental

Response, Compensation, and Liability Act and the Clean Water Act. The

Department is responsible for issuing regulations that Federal, State,

and Indian tribe natural resource trustees may use to obtain

compensation from parties responsible for natural resource injuries.

Type A procedures are standard procedures for simplified assessments

requiring minimal field observation.

DATES: June 1, 1995, from 1:00 to 4:00 p.m.

[[Page 24605]] ADDRESSES: U.S. Department of the Interior, South

Building, Auditorium, 1951 Constitution Avenue, NW, Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Mary Morton, Office of Environmental

Policy and Compliance, Department of the Interior, MS 2340, 1849 C

Street, NW, Washington, DC 20240, (202), tel: 208-3301 or

[email protected] on Internet.

SUPPLEMENTARY INFORMATION: The Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA) makes certain potentially

responsible parties (PRPs) liable for monetary damages resulting from

injury to, destruction of, or loss of natural resources caused by a

release of a hazardous substance. 42 U.S.C. 9607(a)(4)(C). Only

designated Federal, State, and Indian tribe natural resource trustees

may recover natural resource damages. Damages may be recovered for

those natural resource injuries that are not fully remedied by response

actions as well as public economic values lost from the date of the

release until the resources have fully recovered. All sums recovered in

compensation for natural resource injuries must be used to restore,

rehabilitate, replace, or acquire the equivalent of the injured natural

resources. 42 U.S.C. 9607(f)(1). Trustee officials may also recover the

reasonable costs of assessing natural resource damages.

CERCLA requires the promulgation of regulations for the assessment

of natural resource damages resulting from a release of a hazardous

substance. 42 U.S.C. 9651(c). The regulations are to identify:

The best available procedures to determine such damages,

including both direct and indirect injury, destruction, or loss and

shall take into consideration factors including, but not limited to,

replacement value, use value, and ability of the ecosystem or

resource to recover. 42 U.S.C. 9651(c).

Those Federal and State trustee officials who follow the regulations

and then file a lawsuit or pursue available administrative remedies to

recover natural resource damages receive a rebuttable presumption that

their assessment and determination of damages is correct. 42 U.S.C.

9607(f)(2)(C). The Department of the Interior (the Department) has the

delegated authority to promulgate the natural resource damage

assessment regulations under CERCLA. E.O. 12316, as amended by E.O.

12580.

The Clean Water Act (CWA) created liability for natural resource

damages resulting from discharges of oil or hazardous substances into

navigable waters. 33 U.S.C. 1321(f). The Department's natural resource

damage assessment regulations were developed for use in assessing

damages either from a hazardous substance release under CERCLA or an

oil or hazardous substance discharge under CWA. The natural resource

damage provisions of CWA were amended by the Oil Pollution Act (OPA).

33 U.S.C. 2701 et seq. OPA authorized the National Oceanic and

Atmospheric Administration (NOAA) to develop new natural resource

damage assessment regulations for discharges of oil into navigable

waters. On January 7, 1994, NOAA published a proposed rule for

assessing natural resource damages under OPA. 59 FR 1062. The

Department is coordinating its rulemakings with NOAA to ensure, to the

extent appropriate, that consistent processes are established for

assessing natural resource damages under CERCLA and OPA.

The Department's natural resource damage assessment regulations are

codified in the Code of Federal Regulations at 43 CFR part 11 (1994).

The regulations provide an administrative process for conducting

assessments as well as technical procedures for the actual

determination of injuries and damages. The administrative process

consists of four phases: The Preassessment Phase, the Assessment Plan

Phase, the Assessment Phase, and the Post-Assessment Phase.

The Preassessment Phase consists of the activities that precede the

actual assessment, including guidance for deciding whether to proceed

with an assessment. The Assessment Plan Phase includes the preparation

of a written Assessment Plan, which is made available for public review

and comment. During the Assessment Phase, trustee officials conduct the

work described in the Assessment Plan. The work involves determining

whether any natural resources have been injured; quantifying the

natural resource injuries; and computing monetary damages for the

quantified injuries. During the Post-Assessment Phase, trustee

officials prepare a Report of Assessment detailing the results of the

Assessment Phase and present PRPs with a demand for monetary damages

and assessment costs. CERCLA requires that all sums recovered in

compensation for natural resource injuries be used to restore,

rehabilitate, replace, or acquire the equivalent of the injured natural

resources. 42 U.S.C. 9607(f)(1). Therefore, once damages have been

awarded or settlement has been reached, trustee officials establish an

account for the recovered damages and prepare a Restoration Plan for

use of the recovered damages.

As required by CERCLA, the regulations provide two types of

technical procedures for use during the Assessment Phase. See 42 U.S.C.

9651(c)(2). ``Type B'' procedures are ``alternative protocols for

conducting assessments in individual cases.'' 42 U.S.C. 9651(c)(2)(B).

The regulations provide a range of alternative type B scientific and

economic methodologies that trustee officials may apply on a site-

specific basis to determine and quantify injury and compute damages.

``Type A'' procedures, on the other hand, are ``standard procedures for

simplified assessments requiring minimal field observation, including

measures of damages based on units of discharge or release or units of

affected area.'' 42 U.S.C. 9651(c)(2)(A).

The Department is developing type A procedures in stages. In 1987,

the Department issued a type A procedure for minor discharges and

releases in coastal and marine environments that incorporated a

computer model, called the Natural Resource Damage Assessment Model for

Coastal and Marine Environments (NRDAM/CME). 52 FR 9042. The Department

has issued a proposed rule to revise the type A procedure for coastal

and marine environments. See 59 FR 63300 (Dec. 8, 1994). The Department

also recently published a proposed rule that would establish an

additional type A procedure for minor discharges and releases in the

Great Lakes. 59 FR 40319 (Aug. 8, 1994). The proposed type A procedure

for Great Lakes incorporates a computer model called the Natural

Resource Damage Assessment Model for Great Lakes Environments (NRDAM/

GLE). The comment periods on these two proposed type A procedures close

on July 6, 1995. 60 FR 7154 (Feb. 6, 1995).

The Department is now preparing to develop, where feasible and

appropriate, additional type A procedures and has scheduled a public

meeting to discuss the possible scope and form of those procedures as

well as alternative processes for developing the procedures. All

interested parties are encouraged to attend. The Department intends the

meeting as an open discussion at which attendees will be given the

opportunity both to present their own thoughts as well as ask questions

of and respond to other attendees.

Attendees are invited to raise any issue related to additional type

A procedures. As a starting point, attendees should consider the

questions listed below. [[Page 24606]]

With regard to the scope of additional type A procedures:

Should the procedures cover a specific geographic area?

Should the procedures cover selected types of habitat?

Should the procedures cover selected types of resources?

Should the procedures cover selected types of releases (e.g.,

spills versus leachate from sites)?

Should the procedures cover selected hazardous substances?

Should the procedures cover all steps of the Assessment Phase or

simply certain parts (e.g., injury determination or damage

determination but not both)?

For which geographic regions, habitats, resources, types of

releases, hazardous substances, or steps of the Assessment Phase are

there adequate data with which to develop a type A procedure?

With regard to the form of additional type A procedures:

Should the Department develop additional computer models or should

any additional type A procedures take a different form, such as a look-

up table, a formula, or a model assessment or restoration plan?

Which form would be easiest to use?

Which form would be most useful in settlement negotiations?

Which form would be most useful in litigation?

With regard to the process for developing additional type A

procedures:

Should the Department hold additional public meetings?

Should the Department hold meetings with specific interested

parties?

Should the Department conduct a negotiated rulemaking?

Should the Department issue advance notices of proposed rulemaking

soliciting comment on particular aspects of the procedures prior to

issuing a proposed rule?

Dated: May 4, 1995.

Willie R. Taylor,

Director, Office of Environmental Policy and Compliance.

[FR Doc. 95-11378 Filed 5-8-95; 8:45 am]

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