83 FR 43611 - Natural Resource Damages for Hazardous Substances

DEPARTMENT OF THE INTERIOR
Office of the Secretary

Federal Register Volume 83, Issue 166 (August 27, 2018)

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.

[Federal Register Volume 83, Number 166 (Monday, August 27, 2018)]
[Proposed Rules]
[Pages 43611-43613]
From the Federal Register Online  [www.thefederalregister.org]
[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