Yesterday, the OMB announced that it had approved a final rule from the DOI’s Office of the Assistant Secretary for Policy, Management and Budget (AS-PMB) on “Natural Resource Damages for Hazardous Substances”. An advanced notice of proposed rulemaking was published on January 19th, 2023. The notice of proposed rulemaking (NPRM) was published on January 5th, 2024. This rulemaking would amend 43 CFR Part 11.
According to the Spring 2025 Unified Agenda entry for this rulemaking:
“This final rule updates the existing Type A Rule of the CERCLA Natural Resource Damage Assessment and Restoration (NRDAR) regulations so it can be used in different environments and include methodologies which are not technology specific. Adjustments are made to the rebuttable presumption for Type A procedures which is currently limited to damages of $100,000 or less.”
According to the preamble to the NPRM:
“Since its promulgation, the Type A Rule has rarely been utilized to resolve CERCLA Natural Resource Damage Assessment and Restoration (NRDAR) claims. This may be partly due to the Type A Rule's restrictive scope—to two specific aquatic environments when relatively low-impact, single substance spills occur. Additionally, the model equation for each Type A environment is the functional part of the rule itself—with no provisions to reflect evolving toxicology, ecology, technology, or other scientific understanding without a formal amendment to the Type A Rule each time a parameter is modified. The result is an inefficient and inflexible rule that is not currently useful as a means to resolve NRDAR claims and promote natural resource restoration. For these reasons, the Department is now seeking to modernize the Type A process and develop a more flexible and enduring rule than what is provided by the two existing static models.”
I do not expect to be covering this rulemaking in any detail, but I do plan on announcing its publication in the appropriate Short Takes post.
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