[Federal Register Volume 89, Number 30 (Tuesday, February 13, 2024)]
[Proposed Rules]
[Pages 10019-10020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02665]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 11
[Docket No. DOI-2022-0016; 24XD1618EN, DS61600000, DMNHQ0000.000000]
RIN 1090-AB26
Natural Resource Damages for Hazardous Substances
AGENCY: Office of Restoration and Damage Assessment, Interior.
ACTION: Notice of Tribal consultation meetings and extension of public
comment period.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior is announcing the dates of
Tribal consultation meetings to gather information to revise the
simplified Type A procedures in the regulations for conducting natural
resource damage assessment and restoration for hazardous substance
releases. We are also extending the comment period on our Notice of
Proposed Rulemaking issued on January 5, 2024.
DATES: The public comment period on our request for information notice
that published on January 5, 2024, at 89 FR 733 is extended. Interested
persons are invited to submit comments by 11:59 p.m. April 5, 2024.
The Office of Restoration and Damage Assessment will host virtual
Tribal consultation sessions at the dates and times below. Please use
the following links to register for one of the sessions:
[[Page 10020]]
Tuesday, March 26th at 1 p.m. (eastern): https://msteams.link/YWY9
Wednesday, March 27th at 10 a.m. (eastern): https://msteams.link/EWXT
Thursday, March 28th at 1 p.m. (eastern): https://msteams.link/ZBQM
ADDRESSES: Comments may be submitted through https://www.regulations.gov and will be available for public viewing and
inspection. In the Search box, enter the docket number presented above
in the document headings. For best results, do not copy and paste the
number; instead, type the docket number into the Search box using
hyphens. Then, click on the Search button. You may submit a comment by
clicking on ``Comment.'' Comments may also be hand delivered or mailed
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, (202) 208-4438, or by email to
[email protected]. Individuals in the United States who are
deaf, deafblind, hard of hearing, or have a speech disability may dial
711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION: The current regulations describe how to
conduct a natural resource damage assessment and restoration (NRDAR)
for hazardous substance releases under the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. 9601, 9607)
(CERCLA) and the Federal Water Pollution Control Act (33 U.S.C. 1251,
1321) (Clean Water Act). CERCLA required the President to promulgate
these regulations. 42 U.S.C. 9651(c). The President delegated this rule
writing responsibility to the Department of the Interior (DOI). E.O.
12316, as amended by E.O. 12580. The regulations appear at 43 CFR part
11.
A natural resource damage assessment is an evaluation of the need
for, and the means of, securing restoration of public natural resources
following the release of hazardous substances or oil into the
environment. 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 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.
The regulations we are proposing to revise only cover natural
resource damage assessments for releases of hazardous substances under
CERCLA and the Clean Water Act. There are also natural resource damage
assessment regulations at 15 CFR part 990 that cover oil spills under
the Oil Pollution Act, 33 U.S.C. 2701, (the OPA regulations). The
current hazardous substance natural resource damage assessment and
restoration regulations, this preamble, and the proposed revisions to
the regulation use ``restoration'' as an umbrella term for all types of
actions CERCLA and Clean Water Act authorize to address injured natural
resources, including restoration, rehabilitation, replacement, or
acquisition of equivalent resources.
Natural resource damage assessments are conducted by government
officials designated to act as ``trustees'' to bring claims on behalf
of the public for the restoration of injured natural resources.
Trustees are designated by the President, State governors, or Tribes.
If trustees determine, through an assessment, that hazardous substance
releases have injured natural resources, they may pursue claims for
damages against potentially responsible parties. ``Damages'' include
funds needed to plan and implement restoration, compensation for public
losses pending restoration, reasonable assessment costs, and any
interest accruing after funds are due.
The regulations establish an administrative process for conducting
assessments that include technical criteria for determining whether
releases have caused injury, and if so, what funds are needed to
implement restoration. The regulations are for the optional use of
trustees. Trustees can use the regulations to structure damage
assessment work, frame negotiations, and inform restoration planning.
If litigation is necessary to resolve the claim, courts will give
additional deference--referred to as a ``rebuttable presumption'' in
CERCLA--to assessments performed by Federal and State trustees in
accord with the regulations.
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.
Our proposed revisions would largely leave the framework of the
existing rule intact. We are not proposing any substantive changes to
legal standards for reliability of assessment data and methodologies.
We are soliciting comments only on the proposed revisions to the CERCLA
Type A regulations.
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--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Joan M. Mooney,
Principal Deputy Assistant Secretary, Exercising the Delegated
Authority of the Assistant Secretary--Policy, Management and Budget.
[FR Doc. 2024-02665 Filed 2-12-24; 8:45 am]
BILLING CODE 4334-63-P