Natural Resource Damages for Hazardous Substances, 10019-10020 [2024-02665]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[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]


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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.

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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