[Federal Register Volume 59, Number 201 (Wednesday, October 19, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25839]
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[Federal Register: October 19, 1994]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 11
RIN 1090-AA29
Natural Resource Damage Assessments
AGENCY: Department of the Interior.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Department of the Interior is initiating a biennial review
of the regulations for assessing natural resource damages resulting
from a discharge of oil into navigable waters under the Clean Water Act
or a release of a hazardous substance under the Comprehensive
Environmental Response, Compensation, and Liability Act. The
regulations provide procedures that Federal, State, and Indian tribe
natural resource trustees may use to obtain compensation from
potentially responsible parties for injuries to natural resources. The
regulations provide an administrative process for conducting
assessments as well as two types of technical procedures for the actual
determination of injuries and damages. ``Type A'' procedures are
standard procedures for simplified assessments requiring minimal field
observation in cases of minor discharges or releases in certain
environments. ``Type B'' procedures are site-specific procedures for
detailed assessments in other cases. This advance notice solicits
comment on how the administrative process and all but one of the type B
procedures should be revised.
DATES: Comments will be accepted through January 17, 1995.
ADDRESSES: Comments should be sent in duplicate to the Office of
Environmental Policy and Compliance, ATTN: NRDA Rule--Biennial Review,
Room 2340, Department of the Interior, 1849 C Street NW., Washington,
DC 20240, telephone: (202) 208-3301 (regular business hours 7:45 a.m.
to 4:15 p.m., Monday through Friday).
FOR FURTHER INFORMATION CONTACT: Stephen F. Specht at (202) 208-3301,
or [email protected] on Internet.
SUPPLEMENTARY INFORMATION: This notice is organized as follows:
I. Statutory Provisions
II. Overview of the Department's Natural Resource Damage Assessment
Regulations
A. Preassessment Phase
B. Assessment Plan Phase
C. Assessment Phase
D. Post-Assessment Phase
III. Related Rulemakings
IV. Potential Topics for Review
A. Administrative Process
B. Injury
C. Economics
D. Legal Topics
E. Restoration, Rehabilitation, Replacement, and/or Acquisition
of Equivalent Resources
I. Statutory Provisions
This notice announces the commencement of a review of regulations
for assessing natural resource damages under the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended (42
U.S.C. 9601 et seq.) (CERCLA) and the Clean Water Act, as amended (33
U.S.C. 1251 et seq.) (CWA). Under CERCLA, certain categories of
potentially responsible parties (PRPs) are liable for natural resource
damages resulting from a release of a hazardous substance. CERCLA sec.
107(a). Natural resource damages are monetary compensation for injury
to, destruction of, or loss of natural resources. CERCLA sec.
107(a)(4)(C). CWA creates similar liability for natural resource
damages resulting from discharges of oil into navigable waters. CWA
sec. 311(f).
Only designated natural resource trustees may recover natural
resource damages. CWA recognizes the authority of Federal and State
officials to serve as natural resource trustees. CERCLA recognizes the
authority of Federal and State officials as well as Indian tribes to
act as natural resource trustees. CERCLA defines ``State'' to include:
The District of Columbia, the Commonwealth of Puerto Rico, Guam,
American Samoa, the United States Virgin Islands, the Commonwealth
of the Northern Marianas, and any other territory or possession over
which the United States has jurisdiction. CERCLA sec. 101(27).
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 discharge or 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.
CERCLA sec. 107(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 either from a discharge of oil
into navigable waters under CWA or from a release of a hazardous
substance under CERCLA. CERCLA sec. 301(c)(1). These regulations are to
identify the ``best available'' procedures for assessing natural
resource damages. CERCLA sec. 301(c)(2). CERCLA requires that the
natural resource damage assessment regulations include two types of
assessment procedures. ``Type A'' procedures are ``standard procedures
for simplified assessments requiring minimal field observation.''
CERCLA sec. 301(c)(2)(A). ``Type B'' procedures are ``alternative
protocols for conducting assessments in individual cases.'' CERCLA sec.
301(c)(2)(B). Assessments performed by Federal and State trustee
officials in accordance with the natural resource damage assessment
regulations receive a rebuttable presumption in court. CERCLA sec.
107(f)(2)(C). The promulgation of these regulations was delegated to
the Department of the Interior (the Department). E.O. 12316, as amended
by E.O. 12580.
The natural resource damage provisions of CWA were amended by the
Oil Pollution Act (33 U.S.C. 2701 et seq.) (OPA). The authority to sue
for natural resource damages resulting from discharges of oil into
navigable waters was extended to not only Federal and State natural
resource trustees but also Indian tribe and foreign natural resource
trustees. OPA also authorized the National Oceanic and Atmospheric
Administration (NOAA) to develop new natural resource damage assessment
regulations for discharges of oil into navigable waters. The Department
is coordinating its rulemakings with NOAA to ensure, to the maximum
extent appropriate, that consistent processes are established for
assessing natural resource damages under CERCLA and OPA.
OPA provides that any rule in effect under a law replaced by OPA
will continue in effect until superseded. OPA sec. 6001(b). In
particular, Senate committee report language makes it clear that
``[t]he existing Interior Department rules * * * may be used with a
rebuttable presumption in the interim'' until NOAA promulgates new
regulations. S. Rep. No. 101-94, 101st Cong., 1st Sess. 15 (1990).
Therefore, until NOAA promulgates its regulations, the Department's
regulations may be used to obtain a rebuttable presumption for natural
resource damage assessments under OPA.
The Department's natural resource damage assessment regulations
must be reviewed, and revised as appropriate, every two years. CERCLA
sec. 301(c)(3). The regulations provide an administrative process for
conducting assessments as well as technical type A and type B
procedures for the actual determination of injuries and damages. The
purpose of this advance notice is to announce the beginning of the
biennial review of the administrative process and all but one of the
type B procedures.
II. Overview of the Department's Natural Resource Damage Assessment
Regulations
The Department has published various final rules for the assessment
of natural resource damages: 51 FR 27674 (Aug. 1, 1986); 52 FR 9042
(March 20, 1987); 53 FR 5166 (Feb. 22, 1988); and 53 FR 9769 (March 25,
1988). These rulemakings are codified in the Code of Federal
Regulations at 43 CFR part 11. The Department also recently published a
final rule revising the administrative process and the type B
procedures that has not yet been codified in the Code of Federal
Regulations. 59 FR 14261 (March 25, 1994).
The Department's natural resource damage assessment regulations
provide an administrative process for conducting assessments. The
administrative process consists of four phases: The Preassessment
Phase, the Assessment Plan Phase, the Assessment Phase, and the Post-
Assessment Phase. The regulations also provide technical type A and
type B procedures to be used during the Assessment Phase for the actual
determination of injuries and damages.
During this biennial review, the Department intends to examine all
aspects of the Preassessment Phase, Assessment Plan Phase, and Post-
Assessment Phase, as well as all but one of the type B procedures
available for use during the Assessment Phase. The Department is
providing the following brief summary of its existing regulations to
assist commenters. Commenters should consult 43 CFR part 11 and 59 FR
14261 to obtain more detailed information about the administrative
process and type B procedures.
A. Preassessment Phase
The Preassessment Phase covers the activities that precede the
actual assessment. Upon detecting or receiving notification of a
discharge or release, trustee officials decide whether further
assessment actions are warranted. The Department's regulations provide
a number of criteria to assist trustee officials in making this
decision. The trustee officials' decision is documented in the
Preassessment Screen Determination. For more information on the
Preassessment Phase, see subpart B of 43 CFR part 11, as amended by 59
FR 14281.
B. Assessment Plan Phase
If trustee officials decide during the Preassessment Phase that the
criteria for continuing an assessment have been met, they then enter
the Assessment Plan Phase. The Assessment Plan Phase includes various
notification and coordination activities. The Department's regulations
provide guidance on coordination among trustee officials, including
selection of a ``lead authorized official'' to act as an administrative
point of contact. Trustee officials are also required to notify the
PRPs of their intent to perform an assessment.
During the Assessment Plan Phase, trustee officials also prepare a
written Assessment Plan describing the procedures, type A, type B, or
both, that will be used to determine injury and damages. The Assessment
Plan is designed to focus and organize the assessment, which helps
ensure that only reasonable assessment costs are incurred. The
Assessment Plan is subject to public review and comment. For more
information on the Assessment Plan Phase, see subpart C of 43 CFR part
11, as amended by 59 FR 14281-83.
C. Assessment Phase
During the Assessment Phase, the work described in the Assessment
Plan is conducted. The work consists of three steps: Injury
Determination; Quantification; and Damage Determination. In Injury
Determination, trustee officials determine whether any natural
resources have been injured and whether there is a pathway of exposure
between the site of the discharge or release and the injured resources.
If trustee officials determine that resources have been injured and
that a pathway of exposure exists, they proceed to the Quantification
step.
During Quantification, trustee officials quantify the extent of the
resource injuries by measuring the reduction from baseline conditions.
``Baseline'' conditions are the conditions that would have existed had
the discharge or release not occurred. Resources perform functions for
humans and for other resources, such as provision of a food source,
flood control, or provision of recreational opportunities. These
functions are known as ``services.'' Reductions from baseline
conditions can be measured by evaluating the change in the level of
services provided by the injured resources.
Finally, in Damage Determination, trustee officials calculate the
monetary compensation to be sought as damages for the quantified
natural resource injuries. The basic measure of damages is the cost of
restoring, rehabilitating, replacing, and/or acquiring the equivalent
of the injured resources. The Department's regulations also allow for
an additional component of damages. Trustee officials have the
discretion to assess damages for the economic value of the services
lost by the public from the date of the discharge or release until
completion of restoration, rehabilitation, replacement, and/or
acquisition of equivalent resources.
This value is known as ``compensable value.''
When a type A procedure is utilized, trustee officials perform
Injury Determination, Quantification, and Damage Determination through
the use of a standardized procedure involving minimal field work. The
Department is developing different type A procedures for different
environments in stages. Only one type A procedure has been included in
the regulations to date. That type A procedure incorporates a computer
model to perform Injury Determination, Quantification, and Damage
Determination for minor discharges or releases in coastal or marine
environments. The computer model is known as the Natural Resource
Damage Assessment Model for Coastal and Marine Environments (NRDAM/
CME). For more information on use of a type A procedure during the
Assessment Phase, see subpart D of 43 CFR part 11. There are two
ongoing rulemakings concerning type A procedures. The Department is
revising the NRDAM/CME in compliance with a court order and the
statutory biennial review requirement. The Department is also
developing a new type A computer model for use in Great Lakes
environments. Therefore, the Department does not intend to address the
content of the type A procedures during this review.
When a type A procedure is not applicable, trustee officials use
type B procedures instead of a type A procedure. In some cases, trustee
officials may also use type B procedures to supplement damages
calculated through use of an applicable type A procedure. When type B
procedures are utilized, trustee officials perform Injury
Determination, Quantification, and Damage Determination through the use
of site-specific studies. The Department's regulations divide natural
resources into five categories: surface water, ground water, air,
geologic, and biological resources. Specific definitions of injury are
provided for each of these categories. The regulations provide guidance
on the selection of testing and sampling methodologies to determine
whether an injury has occurred and whether a pathway of exposure
exists. The regulations also provide guidance on measuring the change
in baseline conditions during Quantification.
During the Damage Determination step of an assessment incorporating
type B procedures, trustee officials identify and consider a reasonable
number of possible alternatives for restoring, rehabilitating,
replacing, and/or acquiring the equivalent of the injured resources.
Trustee officials select one of the possible alternatives based on
several factors. The trustee officials document their decisions in a
Restoration and Compensation Determination Plan, which is part of the
overall Assessment Plan and, thus, subject to public review and
comment.
Once trustee officials have selected a restoration, rehabilitation,
replacement, and/or acquisition alternative, they select one or more of
the type B cost-estimating methodologies listed in the regulations. The
selected methodologies are used to estimate the cost of implementing
the restoration, rehabilitation, replacement, and/or acquisition
alternative. This estimated cost is the basic measure of damages.
Trustee officials also have the discretion to include compensable value
in their damage claim. Compensable value is calculated by applying one
or more of the type B economic valuation methodologies listed in the
regulations. For more information on use of type B procedures during
the Assessment Phase, see subpart E of 43 CFR part 11, as amended by 59
FR 14283-87.
D. Post-Assessment Phase
The Department's regulations cover the entire process that trustee
officials need to follow if they file a lawsuit and expect to obtain a
rebuttable presumption. Trustee officials have the authority to settle
their damage claims at any time during the administrative process.
However, if the trustee officials do not settle with the PRPs by the
end of the Assessment Phase, then trustee officials prepare a Report of
Assessment detailing the results of the Assessment Phase. Trustee
officials present the Report of Assessment to the PRPs along with a
demand for damages and assessment costs. If a PRP does not agree to pay
within 60 days, the trustee officials may file suit. Federal and State
trustee officials receive a rebuttable presumption of correctness for
assessments performed in accordance with the Preassessment Phase,
Assessment Plan Phase, Assessment Phase, and Post-Assessment Phase
procedures set forth in the regulations.
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 funds. When type B procedures
are used, the post-assessment Restoration Plan is based on the
restoration, rehabilitation, replacement, and/or acquisition
alternative selected in the Restoration and Compensation Determination
Plan during the Assessment Phase. For more information on the Post-
Assessment Phase, see subpart F of 43 CFR part 11, as amended by 59 FR
14287.
III. Related Rulemakings
There are several ongoing natural resource damage assessment
rulemakings other than this biennial review. State of Ohio v. United
States Department of the Interior (Ohio v. Interior) remanded portions
of the administrative process and the type B procedures. 880 F.2d 432
(D.C. Cir. 1989). On March 25, 1994, the Department published a final
rule that addressed all but one aspect of the remand. 59 FR 14261. The
March 25, 1994, final rule did not address the assessment of lost
nonuse values.
There are two potential types of compensable values associated with
natural resource injuries: Lost use values and lost nonuse values. Use
values are derived through activities such as hiking or fishing. Nonuse
values are not dependent on use of a resource and include the value of
knowing that the resource exists and knowing that a resource will be
available for future generations. The only method available for the
express purpose of estimating lost nonuse values is the contingent
valuation methodology (CV). On May 4, 1994, the Department published a
notice of proposed rulemaking addressing CV as a type B procedure for
estimating lost nonuse values. 59 FR 23097. The comment period on the
notice closed on October 7, 1994. 59 FR 32175 (June 22, 1994). The
Department does not intend to address the assessment of lost nonuse
values during this review.
State of Colorado v. United States Department of the Interior
remanded the type A procedure for coastal and marine environments. 880
F.2d 481 (D.C. Cir. 1989). The Department intends to publish a proposed
rule to revise the NRDAM/CME later this month.
The Department has begun the development of an additional type A
procedure for use in Great Lakes environments. This type A procedure
uses a computer model known as the Natural Resource Damage Assessment
Model for Great Lakes Environments (NRDAM/GLE). The Department
published a proposed rule on August 8, 1994. 59 FR 40319. The
Department does not intend to address the content of the type A
procedures during this biennial review.
Also, on January 7, 1994, NOAA published a proposed rule for
assessing natural resource damages resulting from oil discharges into
navigable waters under OPA. 59 FR 1062. The comment period on NOAA's
proposed rule closed on October 7, 1994. 59 FR 32148 (June 22, 1994).
IV. Potential Topics for Review
During this rulemaking, the Department will be considering ways of
revising the administrative process and the type B procedures to
reflect both experience to date in the use of the regulations as well
as scientific and technical advances. The Department solicits comment
on all aspects of the administrative process and the type B procedures,
other than the assessment of lost nonuse values. Based on the comments
received and its own analysis, the Department will develop a proposed
rule to revise the regulations.
The Department has already received numerous comments on the
administrative process and type B procedures over the last few years.
One source of comments has been State briefings on use of the
regulations. The Department has provided these briefings to State
trustee officials at their request. Another source of comments has been
telephone calls from individuals requesting technical assistance in the
application of the regulations to particular cases. Also, in the course
of revising the regulations to comply with Ohio v. Interior, the
Department received numerous comments that were beyond the scope of
that rulemaking. As indicated during the Ohio v. Interior rulemaking,
the Department has included a discussion of all of those comments in
this notice. See 59 FR 14266.
The following discussion is intended neither as an exhaustive
treatment of all possible topics for review nor as a definitive
indication of the Department's position. Instead, the discussion is
simply provided as an aid in generating further information and
analysis. Commenters are encouraged to provide comments not only on the
topics discussed in this notice but also on any other topics relating
to the administrative process or type B procedures that they deem
appropriate.
During this biennial review, the Department will also examine the
relationship between its CERCLA damage assessment regulations and the
OPA damage assessment regulations being developed by NOAA. The
Department will consider ways of clarifying the applicability of its
regulations versus NOAA's regulations. In this regard, the Department
solicits comment on what provisions, if any, its regulations should
continue to make for assessing damages from oil discharges. The
Department will also coordinate with NOAA to ensure the greatest
consistency appropriate between the two sets of regulations. The
Department has noted in the following discussion certain areas where
NOAA has proposed an approach that differs from that currently taken in
the Department's regulations. The Department solicits comment on
whether the Department's regulations should be revised to follow the
approach proposed by NOAA in areas of difference.
A. Administrative Process
1. Streamlining
One frequent comment has been that the Department's regulations are
``too wordy'' and ``not in plain English.'' Many commenters have
indicated that the administrative process is too complicated and needs
to be streamlined. NOAA's proposed OPA rule provides for an ``Expedited
Damage Assessment'' based on ``limited, focused studies in order to
facilitate restoration as soon as possible.'' 59 FR 1177.
Given the wide variety of activities involved in assessing damages,
the number of legal, scientific, and economic issues involved in damage
assessments, and the broad range of possible types of natural resource
damage cases, a certain level of intricacy is unavoidable in the
regulations. However, the administrative process and type B procedures
were designed to provide trustee officials with the flexibility to
tailor the scope and level of detail of an assessment to meet the needs
of the particular case. Trustee officials choose from a menu of
available type B procedures, using only those procedures and assessing
only those injuries and losses that they deem appropriate and adjusting
the level of documentation accordingly. The regulations allow both for
the performance of a limited number of short-term studies in a simple
case involving the release of a single substance affecting a single
resource, as well as the performance of numerous, long-term studies in
a complex case of a release of multiple substances affecting multiple
resources.
Nevertheless, the Department aims to make the regulations as clear
and straightforward as possible. Therefore, the Department solicits
comment on specific aspects of the administrative process that
commenters consider unduly burdensome or complicated.
2. Preassessment Phase
Several commenters requested additional guidance on the conduct of
preassessment activities. NOAA has developed a draft guidance document
on preassessment activities under OPA. See 59 FR 1065.
The Department's regulations already contain some guidance on
preassessment activities. See 43 CFR Secs. 11.20-11.25. The Department
notes that developing guidance requires balancing increased
predictability against reduced flexibility to respond to the unique
features of the broad range of potential natural resource damage cases.
Thus, there is a limit to the level of specificity that can be
appropriately provided in the regulations. With this in mind, the
Department solicits comment on specific aspects of the Preassessment
Phase that warrant additional guidance. The Department also solicits
comment on whether the guidance should be incorporated in the
regulations or in a separate guidance document.
Some commenters questioned whether a preassessment screen should be
required when a type A procedure is used. During the preassessment
screen, trustee officials determine whether the discharge or release is
covered by CWA or CERCLA and whether they have a reasonable probability
of making a successful claim before expending efforts to carry out a
damage assessment. See 43 CFR 11.23(b). This determination appears to
be relevant regardless of the substantive assessment methods ultimately
used. Moreover, the determination whether to use a type A procedure,
type B procedures, or both is not made until the Assessment Plan Phase,
which follows the performance of the preassessment screen. See 43 CFR
11.33. The Department solicits comment on ways to reduce the burden of
the preassessment screen while at the same time ensuring that trustee
officials adequately consider the appropriateness of pursuing a damage
claim before proceeding with either a type A procedure, type B
procedures, or both.
3. Coordination With Other Agencies
A number of commenters requested additional guidance on
coordination among trustee agencies and between trustee agencies and
response agencies. Commenters raised questions about the lead
authorized official. Some commenters sought clarification of the role
of the lead authorized official. Others requested a prohibition against
the designation of a trustee official who is also a PRP as lead
authorized official.
Suggestions for improved coordination between trustee and response
activities included: restricting the time allowed to conduct an
assessment in order to avoid potential conflicts with settlement
negotiations between response agencies and PRPs; requiring trustee
officials to participate in the remedial planning process; requiring
response agencies to coordinate with trustee officials; and authorizing
the On-Scene Coordinator to contact just one Federal trustee agency and
one State trustee agency and requiring that the contacted trustee
agencies notify all other trustee agencies.
The Department's regulations already provide some guidance on
trustee coordination. See 43 CFR 11.32(a)(1). The regulations also
include discussions of coordination with response agencies. 43 CFR
11.23(f) and 11.31(a)(3). The Department intends to take a close look
at these coordination provisions during the biennial review. The
Department encourages commenters to provide suggestions on ways of
improving coordination among trustee agencies and between trustee and
response activities.
NOAA's proposed OPA rule includes a model memorandum of
understanding designed to facilitate trustee coordination. See 59 FR
1185. Several States have been working to ensure better interagency
coordination. Also, as part of the recent National Performance Review
designed to streamline government operations, the Department developed
a number of recommendations concerning the improvement of trustee
coordination for natural resource damage assessments. The Department
intends to examine these efforts to see what lessons can be learned.
4. Public and PRP Participation
Several commenters voiced opinions about the opportunity for public
and PRP participation in the assessment process. Some commenters
thought that additional opportunities for public input were necessary
while others stated that the existing opportunities for public
participation were excessive. Several commenters thought that the
Department should encourage earlier involvement of PRPs in assessments
to avoid duplication of effort. NOAA's proposed OPA rule includes a
model memorandum of understanding for trustee officials and PRPs to use
when conducting joint assessments. 59 FR 1187.
With regard to public participation, the Department's regulations
require that the public be given an opportunity to review and comment
on the Assessment Plan, including the Restoration and Compensation
Determination Plan, as well as the post-assessment Restoration Plan.
See 43 CFR 11.32(c), 11.81(d)(2), and 11.93(a), as amended by 59 FR
14283, and 14287.
With regard to PRP participation, the Department's regulations
require that trustee officials provide PRPs with a Notice of Intent to
Perform an Assessment before beginning an assessment and invite the
participation of the PRPs. See 43 CFR 11.32(a)(2), as amended by 59 FR
14282. Trustee officials are also required to make the Assessment Plan
available to PRPs for review and comment. See 43 CFR 11.32(c). Finally,
trustee officials are authorized to allow PRPs to perform assessment
work. See 43 CFR 11.32(d).
Determining the appropriate level of public and PRP participation
in the natural resource damage assessment process requires balancing
the interests of the public, the PRPs, and the trustee officials. The
Department solicits comment on whether the regulations strike the
appropriate balance and, if not, how the regulations could be revised
to strike a more appropriate balance.
5. Optional Nature of Regulations
The Department's regulations are not mandatory but must be followed
in order to obtain a rebuttable presumption. 43 CFR 11.10. Some
commenters have questioned the decision to make the regulations
optional. For example, one commenter suggested that Federal trustee
agencies be required to use the regulations unless all affected
trustees agree otherwise. The Department solicits additional comment on
whether to require trustee officials to use the regulations when they
pursue a claim for natural resource damages under CERCLA.
6. Settlement Procedures
Several commenters have requested that the regulations address
settlement procedures. For example, when trustee officials use type B
procedures, they must develop a preliminary estimate of damages to help
scope the range of work appropriate during the Assessment Phase. See 43
CFR 11.35(a), as amended by 59 FR 14282. Some commenters have suggested
that trustee officials be encouraged to use the preliminary estimate of
damages to initiate settlement discussions. Other commenters have
suggested that trustee officials be encouraged to perform separate
assessments for each affected resource to facilitate settlement. NOAA's
proposed OPA rule includes guidance on settlement procedures. 59 FR
1171.
The Department strongly supports and encourages the use of the
regulations as a framework for negotiated resolutions of natural
resource damage claims. The Department is concerned that establishment
of specific settlement procedures in the regulations might unduly
restrict the flexibility of negotiating parties. However, the
Department solicits comment on the need for and possible nature of
settlement guidance.
7. Assessment Plan
There have been several comments about the Assessment Plan. The
regulations require trustee officials to develop a quality assurance
and quality control (QA/QC) plan that satisfies the requirements listed
in guidance developed by the Environmental Protection Agency (EPA), if
that guidance is applicable. See 43 CFR 11.31(c)(2), as amended by 59
FR 14281. Some commenters thought that the reference to EPA guidance
was inappropriate.
The Department notes that EPA's QA/QC guidance is a well-
established standard. Moreover, the Department's regulations provide
that EPA guidance need only be followed if applicable. The Department
solicits comment on specific areas of concern with EPA's QA/QC
guidance.
Some commenters questioned whether the requirement that the
Assessment Plan include information on sampling size, design, and
location and estimated recovery period was necessary. One commenter
stated that the Assessment Plan should include a summary of the nature
and extent of contamination to ensure that the approach used to assess
damages is commensurate with the potential impact on resources.
The purpose of the Assessment Plan is to provide the public with a
description of, and to organize, the work that will be performed during
the Assessment Phase. Inclusion of information about sampling size,
design, and location and estimated recovery periods seems appropriate
to fulfill that purpose. On the other hand, since a natural resource
damage assessment focuses on the actual injuries to resources rather
than the level of chemical present, inclusion of information about the
nature and extent of contamination may not be essential. However, the
Department solicits additional comment on the appropriate scope and
level of detail of the Assessment Plan.
Several commenters stated that the Department should take
precautions to ensure that trustee officials do not undertake basic
research when performing damage assessments. These commenters suggested
that the Department provide a list of sources of existing scientific
data and prohibit trustee officials from performing new research unless
there are no existing data regarding the effect of the particular
substance on the particular natural resources involved.
The Department agrees that trustee officials should not undertake
unnecessary basic research and one of the purposes of requiring a
publicly available Assessment Plan is to protect against such research.
A master list of existing data sources across the full range of
potentially affected resources would be costly and time-consuming to
compile, virtually impossible to keep up to date, and might also stifle
development of new approaches. However, the Department solicits comment
on alternative ways of guarding against the performance of unnecessary
basic research.
8. Post-Assessment Phase
Several commenters sought additional guidance on post-assessment
activities. The Department's regulations already provide some guidance
on post-assessment activities. See 43 CFR 11.90-11.93, as amended by 59
FR 14287. The Department notes that developing guidance requires
balancing increased predictability against reduced flexibility to
respond to the unique features of the broad range of potential natural
resource damage cases. Thus, there is a limit to the level of
specificity that can be appropriately provided in the regulations. With
this in mind, the Department solicits comment on specific aspects of
the Post-assessment Phase that warrant additional guidance. The
Department also solicits comment on whether the guidance should be
incorporated in the regulations or in a separate guidance document.
Commenters have sought additional clarification of the requirements
related to the establishment of a restoration account for recovered
damages. One commenter thought that the regulations should require
trustee officials to hold any collected damages in interest-bearing
accounts. Other commenters have asked whether joint damage recoveries
by co-trustee agencies can be placed in a single restoration account.
Trustee officials' authority to open various forms of accounts is
determined by applicable Federal, State, and tribal fiscal law.
Therefore, although nothing in the Department's regulations prevents
trustee officials from placing damage recoveries in an interest-bearing
account, the regulations do not require trustee officials to do so.
Instead, the regulations provide that when trustee officials do not
have the authority to place damage recoveries in an interest-bearing
account, they should adjust their damage claim to account for
inflation. 43 CFR 11.92(b), as amended by 59 FR 14287. Also, the
regulations neither prohibit nor require the opening of joint accounts.
The Department solicits comment on whether additional clarification of
the appropriate form of restoration accounts should be provided.
9. Assessment Costs
Many commenters sought additional clarification on the scope of
recoverable assessment costs. CERCLA provides that trustee officials
may only recover ``reasonable'' assessment costs. CERCLA sec.
107(f)(1). The Department's regulations include a definition of
``reasonable cost.'' See 43 CFR 11.14(ee). Among other things, this
definition requires that the anticipated cost of the assessment be
expected to be less than the anticipated damage amount. Some commenters
have stated that this definition should be revised so that the
reasonableness of assessment costs is determined by comparing the cost
of each component of the assessment to the anticipated damages to be
determined by that component. NOAA's proposed OPA rule defines
``reasonable cost of an assessment'' as those costs incurred in
performing an assessment in accordance with the OPA rule. 59 FR 1169.
The Department solicits comment on whether any revision of its
definition of ``reasonable cost'' is appropriate.
The Department's regulations provide that trustee officials may
recover the ``reasonable and necessary'' costs of an assessment. See 43
CFR 11.15(a)(3)(ii), as amended by 59 FR 14281. Some commenters have
questioned whether this provision would require trustee officials to
demonstrate not only that their assessment costs were reasonable but
also that they were necessary. These commenters noted that CERCLA
merely requires trustee officials to demonstrate that their assessment
costs were reasonable.
The reference to ``necessary'' assessment costs was not intended to
require trustee officials to make an additional demonstration beyond
that required by CERCLA. Therefore, the Department is considering
deleting the reference to ``necessary'' assessment costs.
The Department's regulations provide examples of recoverable
assessment costs. See 43 CFR 11.15(a)(3)(ii), as amended by 59 FR
14281. Some commenters have suggested that the regulations be amended
to include a list of specific practices that would render assessment
costs unreasonable. The Department questions whether addition of such a
list would be workable or necessary.
Several commenters questioned whether attorneys' fees were
recoverable assessment costs. The Department believes that trustee
officials will generally need the assistance of an interdisciplinary
team of experts when performing natural resource damage assessments.
The regulations do not restrict recoverable assessment costs to the
expenses of particular types of professionals. The Department's
regulations provide that recoverable assessment costs are ``limited to
those costs incurred or anticipated by the authorized official for, and
specifically allocable to, site-specific efforts taken in the
assessment of damages.'' 43 CFR 11.60(d)(2). Therefore, if attorneys
are involved in work specifically allocable to an assessment, the
resulting attorneys' fees are recoverable as assessment costs under the
regulations. The Department solicits comment on whether additional
guidance on the recoverability of attorneys' fees is warranted.
B. Injury
Some commenters have indicated that the injury definitions
contained in the Department's regulations should be relaxed. Several
commenters thought that trustee officials should be allowed to document
injury by measuring the mere presence of the oil or hazardous substance
in a natural resource. Other commenters have felt that the Department
should allow injury to be documented through a risk analysis.
On the other hand, some commenters have advocated the development
of more restrictive injury definitions. Several commenters have
contended that trustee officials should be required to link the
specific substance found in a natural resource to that of the discharge
or release in question. Other commenters have suggested that injuries
should be limited to lost public uses of the natural resources.
The regulations establish acceptance criteria for the development
of biological injury definitions. 43 CFR 11.62(f)(2). Some commenters
have stated that these criteria should be applied not only when a new
injury definition is developed but also each time trustee officials
document incident-specific injuries under existing injury definitions.
Others felt that the acceptance criteria should be applied to each
hazardous substance for which a particular biological injury definition
was to apply.
NOAA has proposed standards for determining injury under OPA that
differ from those in the Department's regulations. See 59 FR 1178-1180.
The Department intends to carefully examine the type B standards
and methods for determining injury during this review. The Department
encourages commenters to provide suggestions on injury determination
and quantification.
C. Economics
1. Compensable Value
Several commenters sought clarification on the economic values that
are included in compensable value. Some commenters questioned when lost
economic rent constitutes a compensable value. The Department's
regulations provide that compensable value includes ``any economic rent
accruing to a private party because the Federal or State agency or
Indian tribe does not charge a fee or price for the use of the
resources.'' 43 CFR 11.83(c)(1), as amended by 59 FR 14286. The
Department's regulations also provide that compensable value includes
changes in consumer surplus. Some commenters requested clarification of
what constituted consumer surplus. The Department solicits comment on
whether the regulations should provide additional guidance on the
assessment of damages for lost economic rent and consumer surplus.
A couple of commenters stated that compensable value should include
not only the value of services lost to humans but also the value of
services lost to other resources as a result of the injuries. Under the
Department's regulations, trustee officials may consider not only the
reduction in services to humans but also the reduction in services to
other resources when selecting appropriate restoration, rehabilitation,
replacement, and/or acquisition measures and estimating their costs.
However, compensable value may be calculated only for the resource
services lost to the public pending completion of restoration,
rehabilitation, replacement, and/or acquisition of equivalent
resources. See 43 CFR 11.83(c)(1), as amended by 59 FR 14286. The
Department notes that compensable value does account indirectly for
certain services lost to other resources. For example, compensable
value for lost fishing opportunities may reflect the results of food
web losses. If commenters think that additional values should be
included in compensable value, they should specify the values of
interest, explain the legal basis for including such values, and
provide specific suggestions on how those values should be measured.
The Department's regulations provide that in assessments where the
scope of economic analysis is at the State level, only the compensable
value to the State should be counted. 43 CFR 11.84(h)(3), as amended by
59 FR 14287. Several commenters suggested that this provision be
revised to allow State trustee officials to assess and recover
compensable value for all individuals, not just those within the State.
The Department solicits comment on the appropriate scope of economic
analysis for all trustee officials.
2. Guidance on Methodologies
There were numerous requests for additional guidance on
implementation of the cost-estimating and valuation methodologies
listed in the regulations. With regard to cost-estimating
methodologies, some commenters have stated that the guidance provided
on the incorporation of uncertainty into cost estimates is inadequate.
See 43 CFR Sec. 11.84(d), as amended by 59 FR 14286-87. Other
commenters requested additional guidance on selection and use of cost-
estimating methodologies.
With regard to valuation methodologies, commenters raised concerns
about the possibility of double counting if a hedonic pricing
methodology is used. One commenter noted that the regulations state,
``When regional travel cost models exist, they may be used if
appropriate.'' 43 CFR 11.83(c)(2)(iv), as amended by 59 FR 14286. This
commenter stated that this statement incorrectly implied that regional
cost models were more appropriate than other models. Another commenter
stated that use of the travel cost methodology should not be allowed
because the results of a travel cost model can be skewed by the actions
of one unusually avid traveler.
The Department solicits comment on the need for and possible
content of guidance on implementation of cost-estimating methodologies.
The Department also solicits comment on the need for and possible
content of guidance on implementation of methodologies for valuing lost
use values. Commenters should restrict their remarks to the calculation
of lost use values, because, as noted above, the Department is
addressing the estimation of lost nonuse values in a separate
rulemaking. See 59 FR 23097.
3. Willingness to Accept
Several commenters suggested that trustee officials be allowed to
calculate compensable value by estimating the minimum amount of money
an individual would require once an injury occurred in order to be as
well off as before the injury occurred (willingness to accept). The
Department agrees that, since natural resources are held in trust for
the public, willingness to accept is the correct theoretical measure of
compensable value. However, because of the practical difficulties
entailed in reliably measuring willingness to accept, the Department's
regulations require the use of methodologies that measure the amount of
money an individual would be willing to pay to prevent a natural
resource injury (willingness to pay). 43 CFR 11.83(c)(2), as amended by
59 FR 14286. The Department solicits comment on whether reliable
methods exist for measuring willingness to accept. The Department also
solicits comment on the conditions under which willingness to accept
rather than willingness to pay would, in theory, result in
significantly different estimates of compensable value.
4. Discount Rate
The Department's regulations provide that trustee officials should
discount the value of future costs and losses using the discount rate
specified in the Office of Management and Budget Circular A-94 (OMB
Circular A-94), dated March 27, 1972, which was ten percent. 43 CFR
11.84(e)(2). OMB Circular A-94 has been revised. The current version,
dated October 29, 1992, indicates that the discount rate for public
investment is 7 percent.
The Department is soliciting comment on whether use of a seven
percent discount rate (the current value in Circular A-94) is
appropriate or whether trustee officials should be allowed to use a
different discount rate. A possible alternative discount rate for
future public losses of natural resources is the consumer rate of time
preference, which is the rate of interest at which an individual would
be indifferent between consuming goods now and postponing consumption
to a later date. Interest rates on investments with little or no
default risk, such as U.S. Treasury bonds, provide an estimate of the
consumer rate of time preference. The Department solicits comment on
whether trustee officials should be allowed to use a discount rate
based on the U.S. Treasury borrowing rate on marketable securities with
maturities comparable to the period over which future losses will
occur. Such an approach would be consistent with that proposed by NOAA
under OPA. See 59 FR 1184. Information on U.S. Treasury borrowing rates
on marketable securities is provided in Appendix C of OMB Circular A-
94.
5. Cost-Effectiveness
The Department's regulations define ``cost-effectiveness'' to mean
that ``when two or more activities provide the same or a similar level
of benefits, the least costly activity providing that level of benefits
will be selected.'' 43 CFR Sec. 11.14(j). Commenters have expressed
confusion over the difference between cost effectiveness and
maximization of net benefits. Consideration of cost effectiveness
involves comparing activities that provide the same or a similar level
of benefits. In contrast, consideration of net benefits can be used to
compare activities that provide substantially different levels of
benefits.
Another commenter stated that the definition of ``cost-
effectiveness'' should be changed to delete the reference to
``similar'' levels of benefits, in order to ensure full restoration,
rehabilitation, replacement, and/or acquisition of equivalent
resources.
Use of the phrase ``same or similar'' was not intended to force
trustee officials into using methods that produce lower benefits.
Instead, the term merely reflects the fact that in the damage
assessment context trustee officials will often be comparing methods
that do not produce exactly the same benefits.
The Department solicits comment on whether additional clarification
is warranted.
D. Legal Topics
1. Judicial Review
One significant area of discussion has been judicial review of
damage assessments. CERCLA provides that any determination or
assessment of damages performed ``in accordance with'' the natural
resource damage assessment regulations ``shall have the force and
effect of a rebuttable presumption on behalf of the trustee.'' CERCLA
sec. 107(f)(2)(C). This provision is incorporated into the Department's
regulations without further clarification. See 43 CFR Sec. 11.91(c).
Commenters have asked the Department to define the term ``rebuttable
presumption'' and clarify when and to which aspects of the assessment
the rebuttable presumption applies. Some commenters have questioned
whether the phrase ``in accordance with'' the regulations allows
trustee officials to obtain a rebuttable presumption for any portion of
an assessment that complies with the regulations or whether it
restricts the rebuttable presumption to those assessments that follow
all portions of the regulations.
The Department's regulations provide both an administrative process
for development and review of documentation as well as a range of
alternative methodologies for the actual determination of injuries and
damages. The Department believes that in order to obtain a rebuttable
presumption, a trustee official must follow the entire administrative
process set forth in the regulations. If the trustee official has
followed the administrative process, the rebuttable presumption
attaches to those components of the damage claim that were calculated
through the appropriate use of any of the methodologies described in
the regulations. However, trustee officials are not required to use all
of the listed methodologies in order to obtain a rebuttable
presumption. The Department solicits comment on this interpretation and
on whether additional clarification of the effect of the rebuttable
presumption is warranted.
There have been comments about whether judicial review of an
assessment should be limited to an administrative record. Under NOAA's
proposed OPA rule, judicial review of assessment costs and estimated
costs of restoration, rehabilitation, replacement, and/or acquisition
of equivalent resources would be conducted on an administrative record.
59 FR 1185. The Department solicits comment on whether a similar
provision should be included in its regulations. The Department also
solicits comment on whether judicial review of compensable value should
be conducted on an administrative record.
2. Effect of Amendments
Commenters have expressed confusion over the applicability of
amendments of the natural resource damage assessment regulations to
ongoing damage assessments that were started before the amendments
became effective. The Department solicits comment on whether it should
clarify that trustee officials are entitled to a rebuttable presumption
so long as their assessments are in accordance with the regulations as
they were in effect at the time that the assessments began.
3. Limits of Liability
Some commenters have sought clarification of various statutory
limitations on liability, including the ceilings set forth in section
107(c) of CERCLA and the provision in section 107(f)(1) that excludes
natural resource damages if those damages and the release that caused
those damages occurred wholly before the enactment of CERCLA. The
Department's regulations incorporate the statutory limitations on
liability but do not provide any clarification of those limitations. 43
CFR 11.15(b) and 11.24(b)(1). The Department will consider the
development of additional guidance if commenters identify specific
areas of concern.
4. Double Recovery
Some commenters have sought clarification of the prohibition
against ``double recovery'' of damages contained in section 107(f)(1)
of CERCLA. The Department's regulations incorporate this prohibition.
43 CFR Secs. 11.15(d) and 11.84(c). Double recovery refers to the
recovery of two or more damage amounts to restore, rehabilitate,
replace, and/or acquire the equivalent of the same injured resource or
lost service or to compensate for the same lost public value. The
Department will consider the development of additional guidance if
commenters identify specific areas of concern.
5. Threatened Releases and Discharges
Another area of discussion has been the recovery of natural
resource damages caused by the threat of a release or discharge.
Section 107(a)(4) of CERCLA refers to liability for ``a release or a
threatened release.'' However, section 107(a)(4)(C) refers to damages
for injury to, destruction of, or loss of natural resources ``resulting
from such a release.'' Also, section 301(c) of CERCLA authorizes the
Department to develop regulations for assessment of ``damages for
injury to, destruction of, or loss of natural resources resulting from
a release of oil or a hazardous substance.''
The Department's regulations address only damages resulting from an
actual release or discharge. NOAA's proposed rule, relying on section
1002(a) of OPA, would allow for the assessment of diminished use of a
resource resulting from the threat of a discharge. 59 FR 1169. The
Department solicits comment on whether CERCLA allows for recovery of
damages resulting from a threatened release and whether the
Department's regulations should be revised to allow for the assessment
of damages resulting from a threatened release or discharge. The
Department also solicits examples of the types of damages that might be
assessed in the case of a threatened discharge or release.
6. Archaeological and Cultural Resources
Several commenters have questioned whether CERCLA authorizes the
recovery of damages for injury of archaeological and cultural
resources. The Department believes that ``archaeological'' and
``cultural'' resources do not constitute ``natural resources'' as
defined by CERCLA. However, the Department's regulations do permit
trustee officials to include the loss of archaeological and cultural
services provided by a natural resource in a natural resource damage
assessment.
7. Unused Damage Awards
Some commenters have suggested that the statutory requirement that
damages be spent to restore, rehabilitate, replace, and/or acquire the
equivalent of the injured resources dictates that any sums not used in
this manner be returned to the PRPs. The Department's regulations
provide that collected damages may only be used to fund actions
described in the Restoration Plan and do not address the disposition of
any ``excess'' funds. See 43 CFR 11.92(c).
The Department notes that CERCLA requires all collected damages to
be spent on restoration, rehabilitation, replacement, and/or
acquisition of equivalent resources, which includes mitigation of the
public loss of services during the recovery period. Therefore, all
funds should be used for restoration, rehabilitation, replacement, and/
or acquisition of equivalent resources.
8. NEPA
Several commenters sought clarification of whether the National
Environmental Policy Act (NEPA) applies to assessments or restorations
performed in accordance with the regulations. The Department does not
anticipate addressing the applicability of NEPA in the damage
assessment regulations. However, the Department believes that the
information needed for the Restoration and Compensation Determination
Plan should fulfill the requirements of NEPA, with equivalent
opportunities for public input. Thus if NEPA were applicable to an
assessment or restoration activity, the Department believes that
appropriate and timely information would be available.
9. Consideration of Benefits
Some commenters stated that the Department's regulations should be
revised to require trustee officials to offset any damages resulting
from the discharge or release with any benefits produced by the
discharge or release. The Department solicits additional comment.
10. Tribal Trustees
A number of commenters have sought to ensure that the interests of
tribal entities are adequately addressed in the Department's
regulations. A number of commenters expressed concern over the
treatment of tribal values, including the values associated with tribal
cultural resources. As noted above, the Department believes that
``cultural'' resources, including tribal cultural resources, do not
constitute ``natural resources'' as defined by CERCLA. However, the
Department's regulations do permit trustee officials to include the
loss of cultural services provided by a natural resource in a natural
resource damage assessment.
Other commenters suggested that the Department's fiduciary
responsibility to Indian tribes extends to financing natural resource
damage assessments involving tribal resources. Although the Department
exercises a fiduciary responsibility as trustee for Indian resources,
the Department believes that discussion of funding mechanisms for
damage assessment activities conducted by Indian tribes is not
appropriate for this rulemaking, except as addressed in the law and
regulation regarding the liability of PRPs and use of recovered sums.
One commenter stated that CERCLA grants a rebuttable presumption to
assessments performed by tribal trustee officials. This commenter
stated that when CERCLA was amended by the Superfund Amendments and
Reauthorization Act (SARA), Congress intended to grant tribes the same
authority as States in the area of natural resource trustee activities.
The commenter further noted that under established case law concerning
the Federal government's fiduciary responsibility to tribes, any
ambiguity in the statute concerning tribes' right to the rebuttable
presumption must be construed in favor of the tribes.
The Department notes that the regulations were revised in 1988 to
reflect the SARA amendment to CERCLA granting a rebuttable presumption
to natural resource damage assessments performed by State trustee
officials. See 43 CFR 11.91(c). At that time and in subsequent Federal
Register notices, the Department has taken the position that SARA did
not extend the rebuttable presumption to assessments performed by
tribal trustee officials and that granting a rebuttable presumption to
tribes will require a legislative change.
E. Restoration, Rehabilitation, Replacement, and/or Acquisition of
Equivalent Resources
1. Types of Alternatives
Some commenters have suggested that the regulations should
encourage trustee officials to select restoration and rehabilitation
alternatives rather than replacement or acquisition alternatives. The
Department's regulations do not indicate a preference for any
particular type of restoration, rehabilitation, replacement, or
acquisition alternative. The Department solicits comment on whether it
has the authority, and whether it is appropriate, to develop and
require adherence to a priority system for selecting a restoration,
rehabilitation, replacement, and/or acquisition alternative.
The Department's regulations provide that Federal trustee officials
may not select an alternative that requires acquisition of land for
Federal management, unless restoration, rehabilitation and replacement
are not possible. 43 CFR 11.82(e), as amended by 59 FR 14285. Some
commenters supported this restriction and requested that it be extended
to State and tribal natural resource trustees. Other commenters thought
that the restriction should be eliminated altogether. The Department is
interested in comments on this issue.
Some commenters stated that the regulations should clearly
authorize trustee officials to choose a natural recovery alternative
when selecting a restoration, rehabilitation, replacement, and/or
acquisition alternative. The Department believes that the regulations
already authorize trustee officials to select a natural recovery
alternative when appropriate. The Department's regulations explicitly
require trustee officials to consider a ``No Action-Natural Recovery''
alternative. 43 CFR 11.82(c)(2), as amended by 59 FR 14284.
2. Guidance on Selection of an Alternative
Several commenters have requested guidance on selection of a
restoration, rehabilitation, replacement, and/or acquisition
alternative. In particular, some commenters thought that the Department
should provide guidance on how trustee officials could maximize the
opportunities for natural recovery.
The Department's regulations already provide some guidance on the
selection of a restoration, rehabilitation, replacement, and/or
acquisition alternative. See 43 CFR 11.82, as amended by 59 FR 14284-
85. The Department's regulations require trustee officials to evaluate
a reasonable number of restoration, rehabilitation, replacement, and/or
acquisition alternatives, including natural recovery. The Department's
regulations also provide a number of factors that trustee officials
must consider when selecting an alternative. NOAA's proposed OPA rule
includes a similar list of factors and contains guidance on determining
when to select an alternative that relies on natural recovery. 59 FR
1181. NOAA has developed a draft guidance document on restoration
activities. 59 FR 1065.
The Department notes that developing guidance requires balancing
increased predictability against reduced flexibility to respond to the
unique features of the broad range of potential natural resource damage
cases. Thus, there is a limit to the level of specificity that can be
appropriately provided in the regulations. With this in mind, the
Department solicits comment on specific aspects of the selection
process that warrant additional guidance. The Department solicits
comment on whether the guidance should be incorporated in the
regulations or in a separate guidance document. The Department also
intends to consider the appropriateness of offering guidance on
available restoration and rehabilitation techniques and would
appreciate information on appropriate case studies demonstrating
successful application of restoration and rehabilitation measures.
3. Specific Selection Factors
Under the Department's regulations, one of the factors that trustee
officials must consider when selecting a restoration, rehabilitation,
replacement, and/or acquisition alternative is the relationship between
estimated costs and estimated benefits. 43 CFR 11.82(d)(2), as amended
by 59 FR 14285. Total damages will depend on the sum of compensable
value and restoration, rehabilitation, replacement, and/or acquisition
costs. Often there will be tradeoffs between compensable value and
restoration, rehabilitation, replacement, and/or acquisition costs. For
example, a fast-paced restoration, rehabilitation, replacement, and/or
acquisition alternative may result in a lower level of interim lost
use, and thus reduce associated compensable values. However,
implementation of such an alternative may result in significantly
higher restoration, rehabilitation, replacement, and/or acquisition
costs. In some cases, there may be sufficient data to demonstrate that
some restoration, rehabilitation, replacement, and/or acquisition
alternatives result in substantially lower total damages than others.
NOAA has solicited comment on whether, under OPA, trustee officials
should be required to explain their rationale if they select a
restoration, rehabilitation, replacement, and/or acquisition
alternative that does not minimize total damages. 59 FR 1134. The
Department solicits comment on whether a similar requirement should be
added to the Department's regulations.
A commenter suggested that socioeconomic effects of restoration,
rehabilitation, replacement, and/or acquisition alternatives might be
added to the list of factors that trustee officials are to consider in
making their selection among alternatives. The Department's regulations
provide that trustee officials may consider all relevant considerations
when selecting a restoration, rehabilitation, replacement, and/or
acquisition alternative. 43 CFR 11.82(d), as amended by 59 FR 14284-85.
Therefore, trustee officials already have the ability to consider
socioeconomic effects if relevant.
4. Services Versus Resources
Several commenters expressed confusion over whether the Department
intended restoration, rehabilitation, replacement, and/or acquisition
of the equivalent to be measured in terms of the services provided by a
resource, the resource itself, or both. Several commenters noted
apparent inconsistencies in the regulations.
Some commenters stated that restoration, rehabilitation,
replacement, and/or acquisition of the equivalent should be strictly
limited to the services provided by the resource. For example, some
commenters believed that if an injured stream was used for fishing and
nothing else, PRPs should only be liable for the cost of cleaning that
stream to the point where fishing opportunities are returned to
baseline. These commenters thought that requiring restoration,
rehabilitation, replacement, and/or acquisition of the equivalent of
both services and the resource itself would create economic
inefficiencies and would constitute double counting.
Other commenters indicated that measuring restoration,
rehabilitation, replacement, and/or acquisition of the equivalent in
terms of services only would fail to fully compensate the public. These
commenters expressed concern that using services alone as a measurement
could prevent trustee officials from attaining complete restoration,
rehabilitation, replacement, and/or acquisition of the equivalent.
The Department intends to carefully review the use of the terms
``resources'' and ``services'' in this biennial review. The Department
solicits comment on whether restoration, rehabilitation, replacement,
and/or acquisition should be measured in terms of services, resources,
or both. The Department also solicits comment on the definition of
``services'' and whether it should be modified or additional concepts
should be developed or defined to further clarify this issue.
5. Committed Use
One commenter stated that the concept of committed use should not
apply to restoration, rehabilitation, replacement, and/or acquisition
of equivalent resources, in the sense that restoration of a resource or
service to a level of environmental quality beyond that needed to
support existing committed uses should not be required.
``Committed use'' is defined as a current or planned public use for
which there is a documented commitment established. 43 CFR 11.14(h).
Under the Department's regulations, the concept of committed use
applies only to the calculation of compensable value and does not
affect the appropriate level of restoration, rehabilitation,
replacement, and/or acquisition of equivalent resources. See 43 CFR
11.84(b)(2).
The committed use requirement was designed to prevent trustee
officials from assessing compensable value for purely speculative uses
of a resource. When measuring restoration, rehabilitation, replacement,
and/or acquisition, the guiding concept is whether baseline conditions
have been reestablished, irrespective of consideration of compensable
values. Failure to account for potential services when measuring
restoration, rehabilitation, replacement, and/or acquisition of
equivalent resources could violate Ohio v. Interior, which stated:
Our decision to uphold the ``committed use'' requirement is
premised on our interpretation of the regulation to mean that a
trustee is not prohibited from recovering costs of restoring or
replacing a natural resource even when that resource has no
documented ``committed use.'' 880 F.2d at 462.
6. Implementation of an Alternative
A commenter said there should be provisions for starting
restoration, rehabilitation, replacement, and/or acquisition activities
while the damage assessment is still under way. The Department's
regulations provide for implementation of emergency restorations in
appropriate circumstances, generally limited to actions necessary to
abate an emergency situation. 43 CFR 11.21. Other than for emergency
restorations, starting restoration, rehabilitation, replacement, and/or
acquisition activities while damage assessment is underway, while not
precluded, is not expressly discussed in the regulations. However,
trustee officials may not expend funds received for restoration,
rehabilitation, replacement, and/or acquisition of equivalent resources
prior to developing a Restoration Plan and making it available for
public comment and review. 43 CFR 11.92(c); CERCLA sec. 111(i).
The assessment process is designed, in part, to ensure that
appropriate and efficient measures to accomplish restoration,
rehabilitation, replacement, and/or acquisition of equivalent resources
are adopted. Unless there is a compelling reason for early initiation
of restoration, rehabilitation, replacement, and/or acquisition
activities, the Department believes that the administrative process
established under the regulations should be followed. This approach is
similar to that provided under other existing legislation and
regulation (e.g., NEPA and the Administrative Procedure Act) whereby
there are general and specific constraints on taking certain actions or
making irrevocable decisions or irretrievable commitments of resources
prior to completion of appropriate planning and public involvement.
However, if initiation of certain restoration, rehabilitation,
replacement, and/or acquisition actions would not constrain
decisionmaking following completion of the assessment process, and if
the public was given adequate opportunity to comment on the proposed
actions consistent with CERCLA section 111(i), such actions could be
appropriate.
Commenters have also sought clarification of 43 CFR 11.21 (b) and
(c), which provide that a trustee official may undertake emergency
restoration actions ``consistent with its existing authority.''
Existing 43 CFR 11.21 was developed in recognition of section 111(i) of
CERCLA, which provides that trustee officials need not develop a
restoration plan subject to public comment prior to taking emergency
actions. The Department does not believe that section 111(i) of CERCLA
provides trustee agencies with independent authority to take action
they would not otherwise have authority to take. The Department
solicits comment on whether additional clarification is warranted.
One commenter asked the Department to recognize the right of co-
trustees to spend collected damages on implementation of different
Restoration Plans. While the Department's regulations require trustee
coordination and encourage joint development and implementation of
restoration, rehabilitation, replacement, and/or acquisition actions,
nothing in the regulations prohibits co-trustees from implementing
different Restoration Plans. The Department solicits further comment on
this issue.
A few commenters requested guidance on determining when
restoration, rehabilitation, replacement, and/or acquisition of
equivalent resources is complete. Some commenters suggested that
trustee officials provide PRPs with a certification when restoration,
rehabilitation, replacement, and/or acquisition of equivalent resources
is essentially completed so that PRPs will not remain liable
indefinitely.
The Department's regulations provide that the recovery period is
the time until baseline conditions have been reestablished. 43 CFR
11.73(a), as amended by 59 FR 14283. It is up to the trustee officials,
and in the case of settlements the joint agreement of the trustee
officials and the PRPs, whether a site-specific definition of
completeness should be included in the Restoration Plan. The Department
has not considered it necessary to require trustee officials to provide
PRPs with a certification when restoration, rehabilitation,
replacement, and/or acquisition of equivalent resources is essentially
completed. The extent of a PRP's continuing liability after damages
have been recovered by the trustee officials depends on the terms of
the judgment or settlement agreement.
Dated: September 21, 1994.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 94-25839 Filed 10-18-94; 8:45 am]
BILLING CODE 4310-RG-P
