[Federal Register Volume 61, Number 137 (Tuesday, July 16, 1996)]
[Proposed Rules]
[Pages 37030-37032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17960]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 11

RIN 1090-AA29 and 1090-AA43


Natural Resource Damages Assessments--Type B Procedures

AGENCY: Department of the Interior.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Department of the Interior is revising the regulations for 
assessing natural resource damages resulting from a release or 
discharge of a hazardous substance in compliance with a statutory 
biennial review requirement and a court remand. The regulations provide 
procedures that Federal, State, and Tribal natural resource trustees 
may use to develop plans for restoring injured natural resources and to 
determine appropriate compensation due from potentially responsible 
parties. The regulations include an administrative process for 
conducting assessments as well as two types of technical procedures for 
the actual quantification 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 procedures for detailed 
assessments in other cases. This document solicits comment on potential 
revisions to the administrative process and the type B procedures in 
light of recently promulgated natural resource damage assessment 
regulations for oil discharges.

DATES: Comments will be accepted through September 16, 1996.

ADDRESSES: Comments should be sent in duplicate to the Office of 
Environmental Policy and Compliance, ATTN: NRDA Rule--Type B, Mail Stop 
2340, Department of the Interior, 1849 C Street NW, Washington, DC 
20240.

FOR FURTHER INFORMATION CONTACT: Mary C. Morton at (202) 208-3302.

SUPPLEMENTARY INFORMATION:

Statutory Authority

    This document solicits comment on the revision of regulations for 
assessing natural resource damages for releases or discharges of 
hazardous substances. The Comprehensive Environmental Response, 
Compensation, and Liability Act (42 U.S.C. 9601 et seq.) (CERCLA) 
provides that certain categories of persons, known as potentially 
responsible parties (PRPs), are liable for natural resource damages 
when a release of a hazardous substance has resulted in injury to, 
destruction of, or loss of natural resources. 42 U.S.C. 9607(a). 
Natural resource damages fund restoration, replacement, or acquisition 
of the equivalent of the injured natural resources. 42 U.S.C. 
9607(f)(1).
    Only those Federal, State, and Tribal officials designated as 
natural resource trustees may recover natural resource damages. 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. 42 U.S.C. 9601(27).

    Trustees may recover damages for those natural resource injuries 
that are not fully remedied by response actions as well as the public 
interim losses from the date of the release until the injured natural 
resources have fully recovered or been restored. Trustees may also 
recover the reasonable costs of assessing natural resource damages.
    CERCLA requires the President to promulgate regulations for the 
assessment of natural resource damages under CERCLA and the Clean Water 
Act (33 U.S.C. 1251 et seq.) (CWA). 42 U.S.C. 9651(c)(1). CWA provides 
authority for Federal and State trustees to recover natural resource 
damages resulting from discharges of hazardous substances into 
navigable waters. 33 U.S.C. 1321(f)(4) and (5).
    The regulations must identify the ``best available'' procedures for 
assessing natural resource damages. 42 U.S.C 9651(c)(2). CERCLA 
requires that the natural resource damages assessment regulations 
include two types of assessment procedures. ``Type A'' procedures are 
``standard procedures for simplified assessments requiring minimal 
field observation.'' 42 U.S.C. 9651(c)(2)(A). ``Type B'' procedures are 
``alternative protocols for conducting assessments in individual 
cases.'' 42 U.S.C. 9651(c)(2)(B). If trustees and PRPs fail to reach 
settlement, Federal and State trustees who performed their assessments 
in accordance with the natural resource damage assessment regulations 
will receive a rebuttable presumption in litigation of their claims. 42 
U.S.C. 9607(f)(2)(C). The President delegated the responsibility for 
promulgating the natural resource damages assessment regulations to the 
Department of the Interior (the Department). E.O. 12316, as amended by 
E.O. 12580.

Hazardous Substance Regulations

    The Department has issued regulations that provide an 
administrative process for conducting natural resource damages 
assessments as well as technical type A and type B procedures for the 
actual quantification of injuries and damages resulting from hazardous 
substance releases and discharges. The Department recently published a 
final rule containing two type A procedures--one for minor releases and 
discharges in coastal and marine environments and the other for minor 
releases and discharges in the Great Lakes. 61 FR 20560 (May 7, 1996). 
In State of Ohio v. United States Department of the Interior, 880 F.2d 
432 (D.C. Cir. 1989) (Ohio v. Interior), the U.S. Court of Appeals for 
the D.C. Circuit vacated and remanded portions of the original 
administrative process and the type B procedures that were issued in 
1986. On March 25, 1994, the Department published a final rule in 
response to the Ohio v. Interior remand. 59 FR 14261. This final rule 
is currently being challenged in Kennecott Utah Copper Corp. v. United 
States Department of the Interior, No. 93-1700 and consolidated cases 
(D.C. Cir.).
    The March 25, 1994, rule addressed all but one issue in the Ohio v. 
Interior remand--the calculation of damages for interim lost nonuse 
values. The Department's regulations currently provide that trustees 
can recover from PRPs the cost of implementing a publicly reviewed plan 
for restoring, rehabilitating, replacing, and/or acquiring the 
equivalent of the natural resources injured by a hazardous substance 
release or discharge. The regulations also authorize trustees to 
recover the economic values lost by the public pending restoration or 
recovery of the injured resources. These values are known as 
``compensable values'' and may include ``use'' and ``nonuse'' values, 
if they can be reliably calculated. Trustees must eventually determine 
how to spend damages recovered for compensable values on restoration 
actions but only after the assessment has been completed and the funds 
have been recovered.
    On May 4, 1994, the Department published a notice of proposed 
rulemaking concerning the reliability of calculating nonuse values 
using the contingent valuation methodology. 59 FR 23097. The Department 
then published an advance notice of proposed rulemaking announcing the 
start of an overall review of the administrative process and the type B 
procedures. 59 FR 52749 (Oct. 19, 1994). The Department must review the

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hazardous substance natural resource damages assessment regulations, 
and revise them as appropriate, every two years. 42 U.S.C. 9651(c)(3).
    The Department now intends to develop a proposed rule that will 
address both the biennial review and the remaining aspect of the Ohio 
v. Interior remand and that will supersede the May 4, 1994, proposed 
rule. This document solicits comment on inclusion in this upcoming 
proposed rule of the concepts of the recently promulgated oil natural 
resource damages assessment regulations.

New Oil Regulations

    On January 5, 1996, the National Oceanic and Atmospheric 
Administration (NOAA) published a final rule under the Oil Pollution 
Act of 1990 (33 U.S.C. 2701 et seq.) for assessing natural resource 
damages caused by oil spills. 61 FR 439. The oil regulations adopt a 
new approach to several aspects of natural resource damages assessment. 
One particularly significant and promising feature of the oil 
regulations is the adoption of a new method of measuring damages based 
on unified restoration planning. The oil regulations extend the 
hazardous substance regulations' emphasis on restoration to all 
elements of a natural resource damages claim, including compensation 
for interim loss of injured natural resources and resource services.
    Under the oil regulations, a natural resource damages claim is 
based on a unified restoration plan developed during the assessment 
that incorporates both ``primary'' restoration actions to return 
injured resources and services to the condition that would have existed 
if the discharge had not occurred and ``compensatory'' restoration 
actions to compensate the public for interim loss of resource services.
    The oil regulations fundamentally change the role of economic 
valuation in developing claims for interim loss of injured natural 
resources and resource services. Unlike the current hazardous substance 
regulations, the new oil regulations require trustees to determine 
compensation for interim losses based on the cost of appropriately 
scaled compensatory restoration actions, rather than economic values 
per se.
    The Department has indicated that during the biennial review it 
will work to ensure the maximum consistency appropriate between the 
hazardous substance regulations and the oil regulations. 59 FR 52752. 
The Department believes that the unified restoration planning approach 
in the oil regulations is one appropriate option for biennial reforms 
to the hazardous substance regulations designed to expedite 
restoration, reduce litigation, and encourage cooperative efforts among 
trustees and PRPs.
    The Department also believes that resolution of the Ohio v. 
Interior remand concerning the calculation of nonuse values should be 
considered within the same context as the overall biennial review of 
the hazardous substance regulations. As NOAA has stated in connection 
with its new method of measuring damages, ``[t]he possible use of 
contingent valuation (CV) and other stated-preference methods of 
valuation to determine what scale of compensatory restoration provides 
an equivalent value to the lost services avoids many problems 
identified by commenters regarding the use of CV to calculate a dollar 
value for the damages.'' 61 FR 442.

Issues for Comment

    To assist in the development of a proposed rule, the Department is 
soliciting comment on how the hazardous substance regulations should be 
revised to ensure maximum appropriate consistency with the oil 
regulations and comply with Ohio v. Interior. The Department is 
particularly interested in comments on revising the hazardous substance 
regulations to incorporate the new method for measuring damages in the 
oil regulations. The Department also solicits comment on revising the 
hazardous substance regulations to reflect the more streamlined 
approach to injury assessment contained in the oil regulations. Whereas 
the current hazardous substance regulations contain relatively detailed 
standards and procedures for all aspects of injury determination and 
quantification, the oil regulations provide a general framework of 
decision criteria within which trustees determine on a case-by-case 
basis how best to assess injury. The Department solicits comment on the 
suitability of the new approaches in the oil regulations for the 
hazardous substance regulations, in light of the differences between 
oil spills and hazardous waste sites.

    Dated: July 10, 1996.
Willie R. Taylor,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 96-17960 Filed 7-15-96; 8:45 am]
BILLING CODE 4310-RG-P