On August 27, 2018, the Office of Restoration and Damage Assessment (ORDA) at the Department of the Interior published an Advance Notice of Proposed Rulemaking and request for public comment on revision of the Department’s regulations for the conduct of natural resource damage assessments (NRDA) in connection with releases of hazardous substances. The notice identified several specific areas on which it solicited comments, although it welcomed comments and suggestions regarding other areas.

Comments will be accepted through October 26, 2018.

What It Means

Federal, state and tribal agencies can be trustees for the purpose of bringing actions for the recovery of damages for injury to resources under their ownership or management. The primary federal statutes allowing such actions are the Comprehensive Environmental Remediation, Compensation and Liability Act (CERCLA), and the Oil Pollution Act (OPA). The DOI NRDA Regulations address hazardous substance releases, which are covered by CERCLA. NOAA Fisheries has issued similar regulations under the OPA. The agencies are not required to comply with either set of regulations, but if they do comply, they may be entitled to a “rebuttable presumption” on their claims in any subsequent legal proceeding.

The DOI NRDA regulations were first issued in 1986 and have not been modified since 2008. The regulations include two processes: Type A assessments, intended for relatively simple releases and claims; and Type B, intended to address the specific elements of more complex claims. As a practical matter, there have been virtually no Type A assessments, and trustee agencies almost never attempt to comply with the Type B regulations beyond using them as a general road map. Where agencies have tried to comply, they have been unsuccessful in obtaining the presumption. Indeed, less than a handful of NRD claims under either CERCLA or OPA have ever been litigated. The complexity of claims, the cost of litigation, and the fact that for NRD claims, trustee litigation costs are not recoverable, have made settlement the almost universal result.

Not surprisingly, then, the issues of interest to ORDA in this rulemaking relate to easing resolution, not litigation. These include: 1) Suggestions for adapting the Type A process so that it can actually be used as intended, i.e., an efficient, cost effective and standardized procedure; 2) procedures to encourage early restoration and negotiated settlements, perhaps making the complex DOI regulations more comparable to the NOAA regulations, which emphasize moving quickly to discussion of restoration; 3) use of restoration banking; and 4) compliance with NEPA requirements in the course of restoration planning.

Focusing NRD assessment efforts on early settlement and restoration has been a long-time goal of many if not most practitioners in the field, regardless of whom they represent. The barriers to rapid and cost effective enforcement here have affected both sides, as well as the public and the environment. This is one effort that should be applauded by all sides, and everyone should submit their comments to assure their voices are heard in the rewriting effort.