[Federal Register Volume 60, Number 89 (Tuesday, May 9, 1995)]
[Proposed Rules]
[Pages 24604-24606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11378]
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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]
BILLING CODE 4310-RG-P
