[Federal Register Volume 83, Number 166 (Monday, August 27, 2018)]
[Proposed Rules]
[Pages 43611-43613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18498]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 11
[Docket No. DOI-2018-0006;
XXXD5198NI.DS61600000.DNINR0000.000000.DX61604]
RIN 1090-AB17
Natural Resource Damages for Hazardous Substances
AGENCY: Office of Restoration and Damage Assessment, Interior.
ACTION: Advance notice of proposed rulemaking; request for public
comment.
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SUMMARY: The Office of Restoration and Damage Assessment (ORDA) is
seeking comments and suggestions from State, Tribal, and Federal
natural resource co-trustees, other affected parties, and the
interested public on whether revisions to the regulations for
conducting natural resource damage assessments and restoration (NRDAR)
for hazardous substance releases are needed, and if so, what specific
revisions should be considered.
DATES: We will accept comments through October 26, 2018.
ADDRESSES: You may submit comments to ORDA on this ANPRM by any of the
following methods. Please reference the Regulation Identifier Number
(RIN) DOI-2018-0006 in your comments.
Electronically: Go to http://www.regulations.gov. In the
``Search'' box enter ``DOI-2018-0006.'' Follow the instructions to
submit public comments. We will post all comments.
Hand deliver or mail comments to the Office of Restoration
and Damage Assessment, U.S. Department of the Interior, 1849 C Street
Northwest, Mail Stop/Room 5538, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Steve Glomb, Director, Office of
Restoration and Damage Assessment at (202) 208-4863 or email to
[email protected].
[[Page 43612]]
SUPPLEMENTARY INFORMATION: The regulations provide procedures that
State, Tribal, and Federal natural resource co-trustees may use to
evaluate the need for and means of restoring, replacing, or acquiring
the equivalent of public natural resources that are injured or
destroyed because of releases of hazardous substances into the
environment. The Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA)--which authorizes natural resource damage
claims by States, federally recognized Indian Tribes, and the Federal
government--specifies that the regulations are optional, but if the
State, Tribal, and Federal governments (described as natural resource
``co-trustees'' by CERCLA) utilize them, they are entitled to a
``rebuttable presumption'' on their claim in any subsequent legal
proceeding.
This notice seeks comment and suggestions in response to the CERCLA
biennial review requirement and Executive Order 13777 (February 24,
2017), which directed the Department of the Interior (DOI) and other
Federal agencies to establish Regulatory Reform Task Forces to evaluate
existing regulations and make recommendations regarding repeal,
replacement, or modification, consistent with applicable law.
Background
CERCLA authorizes the Federal government, States, and federally
recognized Indian Tribes to act as ``trustees'' on behalf of the
public, for the purpose of bringing claims for injury to natural
resources injured or destroyed by hazardous substance releases. Such
claims are not fines or penalties, and the measure of damages is
calculated by the cost to restore or replace the injured or destroyed
natural resources. Trustees may also recover compensation for services
the resources would have provided to the public pending restoration,
along with the reasonable cost of assessing injury and determining
appropriate restoration. The statute requires trustees to spend
restoration recoveries ``only to restore, replace, or acquire the
equivalent'' of injured natural resources pursuant to a publicly
reviewed restoration plan.
Section 301(c) of CERCLA requires the promulgation of regulations
to guide natural resource damage assessment and restoration. The
statute explicitly provides that the regulations are not mandatory, but
if State, Tribal, or Federal trustees conduct an assessment in
accordance with the regulations, they would receive a ``rebuttable
presumption'' for their claim in any subsequent administrative or
judicial proceeding. The Department of the Interior (DOI) was
designated by the President to develop the regulations currently in
effect at 43 CFR part 11.
DOI previously developed two types of NRDAR regulations (as
specified by CERCLA). Standard procedures for simplified assessments
requiring minimal field observations (the Type A Rule); and site-
specific procedures for detailed assessment in individual cases (the
Type B Rule). The CERCLA NRDAR Regulations were last revised in 2008.
These revisions to the Type B Rule emphasized natural resource
restoration over litigation and monetary damages, made technical
corrections to procedural timing inconsistencies, and responded to two
court decisions addressing previous versions of the regulations: State
of Ohio v. U.S. Department of the Interior, 880 F.2d 432 (D.C. Cir.
1989) (Ohio v. Interior); and Kennecott Utah Copper Corp. v. U.S.
Department of the Interior, 88 F.3d 1191 (D.C. Cir. 1996) (Kennecott v.
Interior).
The 2008 revisions were based on the report of a committee convened
by DOI under the Federal Advisory Committee Act (FACA) to make
recommendations on improving NRDAR practice. The committee was
comprised of representatives from States, Tribes, Federal agencies,
industrial corporations, industry consultants and attorneys, local and
national non-governmental organizations, and academics. Unlike previous
iterations of the NRDAR regulations, the final regulatory revisions
based on the FACA Committee report were not challenged by States,
Tribes, industry or environmental groups.
Description of Information Requested
We are interested in comments or suggestions that improve the
efficiency and cost effectiveness of the NRDAR process. An internal
biennial review of the CERCLA NRDAR regulations identified some
remaining issues from the NRDAR FACA Committee Report that could be
addressed, and NRDAR practice issues that have developed or progressed
since the last revision of the regulations. DOI is particularly
interested in comments and suggestions related to these issues,
outlined below. We also welcome comments and suggestions on any other
aspect of the regulations that trustees, stakeholders, and the general
public would like us to consider.
Simplification and ``Plain Language''
With the exceptions of the provision of the Type B Regulations that
were revised in 2008, the CERCLA NRDAR regulations are arguably
complicated, overly prescriptive, repetitive, and dense--particularly
when compared to the Oil Pollution Act (OPA) NRDAR Rule promulgated by
the National Oceanic and Atmospheric Administration at 15 CFR part 990.
A number of stakeholders have suggested that DOI should consider a
comprehensive ``plain English'' revision to the CERCLA NRDAR
Regulations that closely aligns with the structure of the existing OPA
NRDAR Regulations.
Type A Regulations
The Type A Regulations were designed to result in efficient, cost
effective, standardized assessments. It has been challenging, however,
to develop workable Type A Regulations that are streamlined and utilize
minimal actual field observations but are still relevant and reliable
enough to be entitled to a rebuttable presumption of correctness.
Accordingly, DOI is seeking comments or suggestions regarding revision
to and utilization of the CERCLA NRDAR Type A Regulations.
Early Emphasis on Restoration Over Damages
The NRDAR FACA Committee Report recommended that DOI could
encourage a restoration focus and negotiated agreements by revising the
regulations to encourage early scoping of restoration opportunities at
NRDAR sites. DOI is interested in any additional comments or
suggestions on where specifically in the assessment process restoration
scoping may be cost effective and appropriate and how that could best
be addressed in the regulations.
Procedures to Further Encourage Negotiated Settlements and Early
Restoration
Since the last revision of CERCLA NRDAR Regulations, a number of
matters have utilized partial negotiated settlements early in the
assessment process to cost effectively resolve discrete NRDAR claims
and re-inforce an overall restoration focus for ultimate comprehensive
resolution. However, the current regulations offer little guidance on
how to align early restoration settlements with existing statutory and
regulatory requirements for assessment and restoration planning.
Advance Restoration and Restoration Banking
Restoration ``banking'' and advance restoration--where restoration
is undertaken in anticipation of marketing portions of such restoration
to responsible parties to address natural resource injury caused by
releases of
[[Page 43613]]
hazardous substances--has been considered at a number of sites since
the last revision of the CERCLA NRDAR regulations. Some States (such as
Louisiana) have enacted specific statutory provisions and promulgated
regulations on NRDAR banking. The existing CERCLA NRDAR regulations do
not provide any guidance on the use of advance restoration and
restoration banking techniques.
National Environmental Policy Act (NEPA) Compliance
The NRDAR FACA Committee Report encouraged DOI to adopt Department-
wide categorical exclusions from NEPA as appropriate and to ensure that
compliance with NEPA requirements occurs concurrently with NRDAR
restoration planning. DOI is interested in comments or suggestions
whether that would best be addressed in the NRDAR regulations, NEPA
regulations, or in Departmental guidance.
Public Comment Procedures
DOI is not obligated to consider comments that we receive after the
close of the comment period for this ANPRM, or comments that are
delivered to an address other than those listed in this notice. After
the comment period for this ANPRM closes, DOI will review all comment
submissions. Upon consideration, DOI may publish a notice of proposed
rulemaking.
We are particularly interested in receiving comments and
suggestions about the topics identified in the Description of
Information Requested section. Written comments that are specific,
explain the rationale for the comment or suggestion, address the issues
outlined in this notice, and where possible, refer to specific
statutes, existing regulations, case law, or NRDAR practices are most
useful.
Before including your address, phone number, email address or other
personal identifying information in you comment, you should be aware
that your entire comment--including your personal identifying
information--might be made publicly available at any time. While you
may ask us in your comment to withhold your personal identifying
information from public review we cannot guarantee that we will do so.
Authority: 42 U.S.C. 9601, secs. 104,107,111(I), 122.
Steve Glomb,
Director, Office of Restoration and Damage Assessment.
[FR Doc. 2018-18498 Filed 8-24-18; 8:45 am]
BILLING CODE 4334-63-P