[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