July 02, 2018

Standardizing NRD assessments: A win-win for regulators, responsible parties, the public, and the law

Brian D. Israel and Lauren Daniel

When enacting the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Congress was clear that a portion of natural resource damages (NRD) assessments was intended to be completed under “standard procedures for simplified assessments requiring minimal field observation . . . .” See 42 U.S.C. § 9651(f)(2)(c). The U.S. Department of the Interior (DOI) attempted to implement this all-but-forgotten provision of CERCLA by passing regulations for “Type A” standardized assessments. But the promulgated Type A procedures apply to only a very narrow subset of NRD cases and are rarely, if ever, used. Use of the alternative “Type B” procedures—requiring expensive, site-specific data collection and precise, time-consuming fidelity to linear regulatory procedures—has become the norm. The almost-exclusive use of “Type B” procedures, is, however, extraordinarily inefficient, violates congressional intent, and, perhaps most importantly, delays restoration of the environment.

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