[Federal Register Volume 88, Number 12 (Thursday, January 19, 2023)]
[Proposed Rules]
[Pages 3373-3375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00927]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 11

[Docket No. DOI-DOI-2022-0016; 23XD1618EN, DS61600000, 
DMNHQ0000.000000]
RIN 1090-AB26


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 revising the simplified Type A procedures in the 
regulations for conducting natural resource damage assessments and 
restoration (NRDAR) for hazardous substance releases.

DATES: We will accept comments through March 20, 2023.

ADDRESSES: You may submit comments to ORDA on this advance notice of 
proposed rulemaking (ANPRM); request for public comment by any of the 
following methods. Please reference the Regulation Identifier Number 
(RIN) 1090-AB26 in your comments.
     Electronically: Go to https://www.regulations.gov. In the 
``Search'' box enter ``DOI-2022-0016.'' 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 2627, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Emily Joseph, Director, Office of 
Restoration and Damage Assessment at (202) 208-4438 or email to 
[email protected].

SUPPLEMENTARY INFORMATION: We are proposing to revise the simplified 
(Type A) procedures for assessment of natural resource damages 
resulting from releases of hazardous substances. The Department of the 
Interior has previously developed two types of natural resource damage 
assessment regulations: Standard procedures for simplified assessments 
requiring minimal field observations (Type A Rule); and site-specific 
procedures for detailed assessments in individual cases (Type B Rule).
    The Type B Rule was last revised in 2008 to emphasize natural 
resource restoration over economic damages, resolve a timing 
inconsistency, and respond to two previous Court decisions addressing 
the regulations: State of Ohio v. U.S. Department of the Interior, 880 
F.2d 432 (D.C. Cir. 1989); and Kennecott Utah Copper Corp. v. U.S. 
Department of the Interior, 88 F.3rd 1191 (D.C. Cir. 1996).
    The Type A Rule was last revised in November 1997. It provides two 
distinct formulas for modeling damages for natural resource injuries 
caused by hazardous substance releases to coastal and marine 
environments and Great Lakes environments, respectively. In accordance 
with the Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended (CERCLA) 42 U.S.C. 9601 et seq., 
damages calculated in accordance with Type A or Type B procedures are 
entitled to a ``rebuttable presumption'' of correctness in any 
administrative or judicial proceeding. The rebuttable presumption for 
the Type A procedure under the current version of the rule is limited 
to damages of $100,000 or less.

Background

    Since its promulgation, the Type A Rule has rarely been utilized to 
resolve CERCLA Natural Resource Damage Assessment and Restoration 
(NRDAR) claims. This may be partly due to the Type A Rule's restrictive 
scope--to two specific aquatic environments when relatively low-impact, 
single substance spills occur. Additionally, the model equation for 
each Type A environment is the functional part of the rule itself--with 
no provisions to reflect evolving toxicology, ecology, technology, or 
other scientific understanding without a formal amendment to the Type A 
Rule each time a parameter is modified. The result is an inefficient 
and inflexible rule that is not currently useful as a means to resolve 
NRDAR claims and promote natural resource restoration.

[[Page 3374]]

For these reasons, the Department is now seeking to modernize the Type 
A process and develop a more flexible and enduring rule than what is 
provided by the two existing static models.
    The Department is proposing to re-formulate the Type A Rule as a 
procedural structure for negotiated settlements by utilizing tools 
tailored to incidents of smaller scale and scope. We believe that this 
aligns better with the original statutory purpose of providing a 
streamlined and simplified assessment process as a companion to the 
more complex Type B Rule--to reduce transaction costs and expedite 
restoration in a broader range of less complex and contentious cases. 
Our objective is to essentially formalize beneficial practices that 
have evolved since the 1997 promulgation of the Type A Rule. 
Specifically, Trustees have utilized well-established methodologies 
such as habitat equivalency analysis (HEA), resource equivalency 
analysis (REA), and other relatively simple models to assess natural 
resource injury in smaller incidents that do not necessarily warrant 
the more prescriptive Type B procedures.
    Pursuing a case under the new Type A would be initiated by the 
Trustees involved in the case. The new Type A Rule would be intended 
for use when the potentially responsible parties (PRPs) and all 
trustees with jurisdiction over the injured natural resources agree 
that the simplified procedures of the rule provide an appropriate means 
of assessing and resolving the claim. An assessment of damages 
performed cooperatively in this manner would be entitled to a 
rebuttable presumption of correctness when undergoing administrative or 
judicial review.
    However, rather than limiting the rule's applicability to a narrow 
range of cases and a pre-determined, static model, the Department of 
the Interior (Department) proposes to consider ways to expand the 
rule's scope through a structured process that will utilize a range of 
methods that have become widely used and accepted since the original 
rule was formulated, including existing habitat and resource 
equivalency analyses, and benefits transfers from similar cases. These 
methodologies are referenced in the current version of the CERCLA NRDAR 
rule (See 43 CFR 11.83) and have proven adaptable and functional enough 
to support negotiated resolution of a wide range of NRDAR claims that 
have withstood public and judicial scrutiny over the past two decades. 
We are seeking additional public input on what specific methodologies 
or procedures could be utilized under a revised Type A Rule.
    In recognition of the evidentiary constraints of models when 
compared to more robust site-specific observation and information, the 
current Type A Rule limits the amount of damages that could be eligible 
for the Type A rebuttable presumption to $100,000 or less. We recognize 
that $100,000--un-adjusted for more than 25 years of inflation from 
1997--likely represents an extremely narrow range of present day NRDAR 
claims. More importantly, it would be challenging for NRDAR trustees 
and PRPs to engage in even a streamlined cooperative process that is 
cost-effective in the context of $100,000 in total damages. 
Accordingly, we are seeking public input on the appropriate amount of 
damages eligible for a rebuttable presumption when utilizing a new Type 
A process.
    We are also seeking public input on potential non-monetary 
limitations for using the Type A Rule--including whether the Type A 
Rule can be utilized at a site with multiple PRPs, and whether PRPs 
voluntarily participating in a Type A process need to agree to pay the 
reasonable cost of that process. Additionally, we are seeking public 
input on whether the revised Type A should include reasonable 
assessment costs within the cap applicable for the Type A Rule, and 
whether there should be a time limit--accompanied by a tolling 
agreement--to how long a Type A process could take. Finally, we are 
seeking public input as to whether the Type A claim should continue to 
be eligible to be combined with a Type B assessment or with other Type 
A processes at the same site--which could result in applying the Type A 
Rule to only certain discrete natural resource categories at a site.
    The Department anticipates that NRDAR claims resolved through the 
revised Type A Rule will be subject to a 30-day public notice and 
review process before finalization. As part of this public notice and 
review, NRDAR trustees would make available the application of the 
model they relied on (including the data inputs) and any relevant 
supporting information. As with the current rule, Trustees would 
consider, and when appropriate, respond to any public comments. Any 
changes to the voluntary agreement as a result of public comment would 
also be approved by the settling PRPs in order to finally resolve the 
claim.
    Consistent with CERCLA section 111(i) (42 U.S.C. 9611(i)), Trustees 
would continue to expend damages recovered under the Type A Rule 
pursuant to a Restoration Plan. Trustees would also continue to have 
the ability to select appropriate restoration projects without being 
restricted to selecting the general restoration methods used by the 
Type A equivalency model they employ to calculate their NRDAR claim. 
Trustees would maintain the discretion to spend recovered sums on other 
actions to restore, replace, or acquire the equivalent of injured 
resources or services.

Description of Information Requested

    This advance notice of proposed rulemaking seeks comments on the 
questions posed above to re-formulate the Type A Rule, including: (1) 
which assessment methodologies would be appropriate for use in 
simplified assessments under a revised Type A rule, (2) the amount of 
damages eligible for a rebuttable presumption when utilizing a new Type 
A process, (3) whether to include reasonable costs of assessment within 
the total cap for application of the Type A Rule, (4) whether PRPs 
voluntarily participating in a Type A process need to agree to pay the 
reasonable cost of that process, (5) whether the Type A Rule is 
appropriate for a site with multiple PRPs, and (6) how long a Type A 
process could last. The Department would also appreciate comments that 
address interest in using revised Type A procedures, along with 
suggestions that improve the efficiency and cost effectiveness of the 
NRDAR Type A process.

Public Comment Procedures

    The Department 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, the 
Department will review all comment submissions. Upon consideration, the 
Department 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 your comment, you should be aware 
that your entire comment--including your personal identifying 
information--might be made publicly available at any time.

[[Page 3375]]

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)

Emily Joseph,
Director, Office of Restoration and Damage Assessment.
[FR Doc. 2023-00927 Filed 1-18-23; 8:45 am]
BILLING CODE 4334-63-P