Department of the Interior Moves to Modernize Natural Resource Damages Regulations

Last month, the US Department of the Interior (DOI) announced an effort to reform key regulations for assessing natural resource damages (NRD) at Superfund sites. If promulgated, the proposed effort could dramatically reduce transaction costs from Natural Resource Damage Assessments (NRDAs) and facilitate more cooperative settlements with potentially responsible parties (PRPs).

When enacting the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which established Superfund, in 1980, Congress stated that there should be “standard procedures for simplified assessments requiring minimal field observation . . .”. 42 USC 9651(c)(2)(A). The DOI attempted to implement this all-but-forgotten provision of CERCLA by promulgating regulations for “Type A” standardized assessments. But the promulgated Type A procedures are obsolete and are never actually used. 43 CFR Part 11.

With last month’s announcement, the DOI may be getting serious about simplifying NRDAs. Specifically, the DOI is inviting comments on using equivalency models (such as habitat equivalency analysis) in lieu of extensive and expensive data collection at many NRD sites.

The DOI request for comment closely tracks a proposal we made in 2018 (Standardizing NRD assessments, ABA Trends, Vol. 49 No. 6). Specifically, we argued that the DOI should, “modify the Type A NRD regulations to include equivalency models and PRP cooperation.” We further argued that, “if the Trustees include both elements, they will enjoy the statutory rebuttable presumption, the PRPs will resolve their liabilities faster, transaction costs will be nearly eliminated, and environmental restoration will occur years, or decades, sooner.”

While there are numerous implementation issues (as discussed in our 2018 article), this move by the DOI could provide a win for all stakeholders.

The DOI will be accepting comments through March 20, 2023.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.