43 C.F.R. §§ 11.30–11.38

§11.30. What does the authorized official do if an assessment is warranted?

43 C.F.R. § 11.30

(a)

If the authorized official determines during the Preassessment Phase that an assessment is warranted, the authorized official must develop a plan for the assessment of natural resource damages.

(b)

Purpose. The purpose of the Assessment Plan is to ensure that the assessment is performed in a planned and systematic manner and that methodologies selected from subpart D for a type A assessment or from subpart E for a type B assessment, including the Injury Determination, Quantification, and Damage Determination phases, can be conducted at a reasonable cost, as that phrase is used in this part.

(c)

Assessment Plan phase costs.

(1)

The following categories of reasonable and necessary costs may be incurred in the Assessment Plan phase of the damage assessment:

(i)

Methodology identification and screening costs;

(ii)

Potentially responsible party notification costs;

(iii)

Public participation costs;

(iv)

Exposure confirmation analysis costs;

(v)

Preliminary estimate of damages costs; and

(vi)

Any other Assessment Plan costs for activities authorized by §§ 11.30 through 11.38.

(2)

The reasonable and necessary costs for these categories shall be limited to those costs incurred or anticipated by the authorized official for, and specifically allocable to, site specific efforts taken in the development of an Assessment Plan for a resource for which the agency or Indian tribe is acting as trustee. Such costs shall be supported by appropriate records and documentation, and shall not reflect regular activities performed by the agency or tribe in management of the natural resource. Activities undertaken as part of the Assessment Plan phase shall be taken in a manner that is cost-effective, as that phrase is used in this part.

Notes, amendments, and revision history

Amendments

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996]

Authority

Authority: 42 U.S.C. 9651(c), as amended.

Source

Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.

Amendments

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996]

§11.31. What does the Assessment Plan include?

43 C.F.R. § 11.31

(a)

General content and level of detail.

(1)

The Assessment Plan must identify and document the use of all of the type A and/or type B procedures that will be performed.

(2)

The Assessment Plan shall be of sufficient detail to serve as a means of evaluating whether the approach used for assessing the damage is likely to be cost-effective and meets the definition of reasonable cost, as those terms are used in this part. The Assessment Plan shall include descriptions of the natural resources and the geographical areas involved. The Assessment Plan shall also include a statement of the authority for asserting trusteeship, or co-trusteeship, for those natural resources considered within the Assessment Plan. The authorized official's statement of the authority for asserting trusteeship shall not have the force and effect of a rebuttable presumption under § 11.91(c) of this part. In addition, for type B assessments, the Assessment Plan shall include the sampling locations within those geographical areas, sample and survey design, numbers and types of samples to be collected, analyses to be performed, preliminary determination of the recovery period, and other such information required to perform the selected methodologies.

(3)

The Assessment Plan shall contain information sufficient to demonstrate that the damage assessment has been coordinated to the extent possible with any remedial investigation feasibility study or other investigation performed pursuant to the NCP.

(4)

The Assessment Plan shall contain procedures and schedules for sharing data, split samples, and results of analyses, when requested, with any identified potentially responsible parties and other natural resource trustees.

(b)

Identification of types of assessment procedures. The Assessment Plan must identify whether the authorized official plans to use a type A procedure, type B procedures, or a combination. Sections 11.34 through 11.36 contain standards for deciding which types of procedures to use. The Assessment Plan must include a detailed discussion of how these standards are met.

(c)

Specific requirements for type B procedures. If the authorized official plans to use type B procedures, the Assessment Plan must also include the following:

(1)

The results of the confirmation of exposure performed under § 11.37;

(2)

A Quality Assurance Plan that satisfies the requirements listed in the NCP and applicable EPA guidance for quality control and quality assurance plans;

(3)

The objectives, as required in § 11.64(a)(2) of this part, of any testing and sampling for injury or pathway determination; and

(4)

The Restoration and Compensation Determination Plan developed in accordance with the guidance in § 11.81 of this part. If existing data are not sufficient to develop the Restoration and Compensation Determination Plan as part of the Assessment Plan, the Restoration and Compensation Determination Plan may be developed later, after the completion of the Injury Determination or Quantification phases. If the Restoration and Compensation Determination Plan is published separately, the public review and comment will be conducted pursuant to § 11.81(d) of this part.

(d)

Specific requirements for type A procedures. If the authorized official plans to use a type A procedure, the Assessment Plan must also contain the information described in subpart D.

Notes, amendments, and revision history

Amendments

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 FR 5174, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996; 73 FR 57265, Oct. 2, 2008]

Authority

Authority: 42 U.S.C. 9651(c), as amended.

Source

Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.

Amendments

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 FR 5174, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996; 73 FR 57265, Oct. 2, 2008]

§11.32. How does the authorized official develop the Assessment Plan?

43 C.F.R. § 11.32

(a)

Pre-development requirements. The authorized official shall fulfill the following requirements before developing an Assessment Plan.

(1)

Coordination.

(i)

If the authorized official's responsibility is shared with other natural resource trustees as a result of coexisting or contiguous natural resources or concurrent jurisdiction, the authorized official shall ensure that all other known affected natural resource trustees are notified that an Assessment Plan is being developed. This notification shall include the results of the Preassessment Screen Determination.

(ii)

Authorized officials from different agencies or Indian tribes are encouraged to cooperate and coordinate any assessments that involve coexisting or contiguous natural resources or concurrent jurisdiction. They may arrange to divide responsibility for implementing the assessment in any manner that is agreed to by all of the affected natural resource trustees with the following conditions:

(A)

A lead authorized official shall be designated to administer the assessment. The lead authorized official shall act as coordinator and contact regarding all aspects of the assessment and shall act as final arbitrator of disputes if consensus among the authorized officials cannot be reached regarding the development, implementation, or any other aspect of the Assessment Plan. The lead authorized official shall be designated by mutual agreement of all the natural resource trustees. If consensus cannot be reached as to the designation of the lead authorized official, the lead authorized official shall be designated in accordance with paragraphs (a)(1)(ii) (B), (C), or (D) of this section:

(B)

When the natural resources being assessed are located on lands or waters subject to the administrative jurisdiction of a Federal agency, a designated official of the Federal agency shall act as the lead authorized official.

(C)

When the natural resources being assessed, pursuant to section 126(d) of CERCLA, are located on lands or waters of an Indian tribe, an official designated by the Indian tribe shall act as the lead authorized official.

(D)

For all other natural resources for which the State may assert trusteeship, a designated official of the State agency shall act as the lead authorized official.

(iii)

If there is a reasonable basis for dividing the assessment, the natural resource trustee may act independently and pursue separate assessments, actions, or claims so long as the claims do not overlap. In these instances, the natural resource trustees shall coordinate their efforts, particularly those concerning the sharing of data and the development of the Assessment Plans.

(2)

Identification and involvement of the potentially responsible party.

(i)

If the lead agency under the NCP for response actions at the site has not identified potentially responsible parties, the authorized official shall make reasonable efforts to identify any potentially responsible parties.

(ii)

In the event the number of potentially responsible parties is large or if some of the potentially responsible parties cannot be located, the authorized official may proceed against any one or more of the parties identified. The authorized official should use reasonable efforts to proceed against most known potentially responsible parties or at least against all those potentially responsible parties responsible for significant portions of the potential injury.

(iii)

(A)

The authorized official shall send a Notice of Intent to Perform an Assessment to all identified potentially responsible parties. The Notice shall invite the participation of the potentially responsible party, or, if several parties are involved and if agreed to by the lead authorized official, a representative or representatives designated by the parties, in the development of the type and scope of the assessment and in the performance of the assessment. The Notice shall briefly describe, to the extent known, the site, vessel, or facility involved, the discharge of oil or release of hazardous substance of concern to the authorized official, and the resources potentially at risk. The Notice shall also contain a statement of authority for asserting trusteeship, or co-trusteeship, over those natural resources identified as potentially at risk.

(B)

The authorized official shall allow at least 30 calendar days, with reasonable extensions granted as appropriate, for the potentially responsible party or parties notified to respond to the Notice before proceeding with the development of the Assessment Plan or any other assessment actions.

(b)

Plan approval. The authorized official shall have final approval as to the appropriate methodologies to include in the Assessment Plan and any modifications to the Assessment Plan.

(c)

Public involvement in the Assessment Plan.

(1)

The authorized official must make the Assessment Plan available for review by any identified potentially responsible parties, other natural resource trustees, other affected Federal or State agencies or Indian tribes, and any other interested member of the public for a period of at least 30 calendar days, with reasonable extensions granted as appropriate. The authorized official may not perform any type B procedures described in the Assessment Plan until after this review period.

(2)

Any comments concerning the Assessment Plan received from identified potentially responsible parties, other natural resource trustees, other affected Federal or State agencies or Indian tribes, and any other interested members of the public, together with responses to those comments, shall be included as part of the Report of Assessment, described in § 11.90 of this part.

(d)

Plan implementation. At the option of the authorized official and if agreed to by any potentially responsible party, or parties acting jointly, the potentially responsible party or any other party under the direction, guidance, and monitoring of the authorized official may implement all or any part of the Assessment Plan finally approved by the authorized official. Any decision by the authorized official to allow or not allow implementation by the potentially responsible party shall be documented in the Assessment Plan.

(e)

Plan modification.

(1)

The Assessment Plan may be modified at any stage of the assessment as new information becomes available.

(2)

(i)

Any modification to the Assessment Plan that in the judgment of the authorized official is significant shall be made available for review by any identified potentially responsible party, any other affected natural resource trustees, other affected Federal or State agencies or Indian tribes, and any other interested members of the public for a period of at least 30 calendar days, with reasonable extensions granted as appropriate, before tasks called for in the modified plan are begun.

(ii)

Any modification to the Assessment Plan that in the judgment of the authorized official is not significant shall be made available for review by any identified potentially responsible party, any other affected natural resource trustees, other affected Federal or State agencies or Indian tribes, and any other interested members of the public, but the implementation of such modification need not be delayed as a result of such review.

(f)

Plan review.

(1)

After the Injury Determination phase is completed and before the Quantification phase is begun, the authorized official shall review the decisions incorporated in the Assessment Plan.

(2)

The purpose of this review is to ensure that the selection of methodologies for the Quantification and Damage Determination phases is consistent with the results of the Injury Determination phase, and that the use of such methodologies remains consistent with the requirements of reasonable cost, as that term is used in this part.

(3)

Paragraphs (f)(1) and (f)(2) of this section do not apply to the use of a type A procedure.

Notes, amendments, and revision history

Amendments

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 FR 14282, Mar. 25, 1994; 61 FR 20609, May 7, 1996]

Authority

Authority: 42 U.S.C. 9651(c), as amended.

Source

Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.

Amendments

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 FR 14282, Mar. 25, 1994; 61 FR 20609, May 7, 1996]

§11.33. What types of assessment procedures are available?

43 C.F.R. § 11.33

There are two types of assessment procedures:

(a)

Type A procedures are simplified procedures that require minimal field observation which can be used for all types of resources defined under this part (hereafter, all environments). Subpart D of this part describes the Type A procedures.

(b)

Type B procedures require more extensive field observation than the Type A procedures. Subpart E of this part describes the Type B procedures.

Notes, amendments, and revision history

Amendments

[91 FR 42878, July 13, 2026]

Authority

Authority: 42 U.S.C. 9651(c), as amended.

Source

Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.

Amendments

[91 FR 42878, July 13, 2026]

§11.34. When may a trustee use a Type A procedure?

43 C.F.R. § 11.34

A Trustee may use a Type A procedure for all resource types defined under this part if all of the following are satisfied:

(a)

The natural resource trustee has decided that methods for replacement of resources or resource services from the list of applicable models or the factors for evaluation of new methodologies in § 11.83 are appropriate for determining damages to fund restoration activities at the site.

(b)

All Federal, State, and Tribal trustees with probable jurisdiction over the injured natural resources who have elected to participate in the claim concur in the use of the Type A procedure in the circumstances presented.

(c)

The claim that will be resolved using the Type A procedure is expected to be less than $5 million (excluding reasonable assessment costs). This figure will be periodically adjusted for inflation following guidance from the Office of Management and Budget. In claims which are expected to be higher than $5 million, the Type A procedures may still be used if all parties agree.

(d)

At least one potentially responsible party has voluntarily agreed to utilize the Type A procedure. If a claim involves multiple potentially responsible parties, the Type A process may not be appropriate unless resolution of the claim involves all significant potentially responsible parties, or the resolution of the claim represents a final settlement of the claim for injury to specific natural resources at the site.

(e)

The potentially responsible party agrees to toll the running of the statutory limitations period for filing the claim for at least one year and to reimburse the trustees for reasonable Type A assessment costs until the claim is resolved or the potentially responsible party gives formal notice of withdrawal from voluntary participation in the Type A procedure.

Notes, amendments, and revision history

Amendments

[91 FR 42878, July 13, 2026]

Authority

Authority: 42 U.S.C. 9651(c), as amended.

Source

Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.

Amendments

[91 FR 42878, July 13, 2026]

§11.35. How does the trustee decide whether to use Type A or Type B procedures?

43 C.F.R. § 11.35

(a)

If the natural resource trustee determines under § 11.34 that a Type A procedure is available, the trustee must then decide whether to use that procedure or use a Type B procedure. The trustee must make this decision by weighing the difficulty of collecting site-specific data against the suitability of the averaged data and simplifying assumptions in the Type A procedure for the release being assessed. The trustee may use a Type B procedure if they can be performed at a reasonable cost and if the increase in accuracy provided by those procedures outweighs the increase in assessment costs.

(b)

If there is no appropriate Type A procedure, the trustee must use a Type B procedure to calculate all damages.

Notes, amendments, and revision history

Amendments

[91 FR 42878, July 13, 2026]

Authority

Authority: 42 U.S.C. 9651(c), as amended.

Source

Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.

Amendments

[91 FR 42878, July 13, 2026]

§11.36. May the trustee use both a Type A and Type B procedure for the same release?

43 C.F.R. § 11.36

(a)

The natural resource trustee may use both a Type A procedure and Type B procedure for the same release if:

(1)

The Type B procedure is cost-effective and can be performed at a reasonable cost;

(2)

There is no double recovery; and

(3)

The Type B procedure is used only to determine damages for injuries or compensable values that are not addressed by the Type A procedure.

(b)

The Type A procedure may be used to address any claim brought by a natural resource trustee.

(c)

If a trustee elects to use both a Type A procedure and a Type B procedure, the Assessment Plan must explain how the double recovery will be prevented.

(d)

When the trustee uses a Type B procedure for injuries not addressed in a Type A procedure, they must follow all of subpart E of this part (which contains standards for determining and quantifying injury as well as determining damages), § 11.31(c) (which addresses content of the Assessment Plan), and § 11.37 (which addresses confirmation of exposure). When the trustee uses a Type B procedure for compensable values that are not included in a Type A procedure but that result from injuries that are addressed in the Type A procedure, they need not follow all of subpart E and §§ 11.31(c) and 11.37. Instead, the trustee may rely on the injury predictions of the Type A procedure and simply use the valuation methodologies authorized by § 11.83(c) to calculate compensable value. When using valuation methodologies, the trustee must comply with § 11.84.

Notes, amendments, and revision history

Amendments

[91 FR 42878, July 13, 2026]

Authority

Authority: 42 U.S.C. 9651(c), as amended.

Source

Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.

Amendments

[91 FR 42878, July 13, 2026]

§11.37. Must the trustee confirm exposure before implementing the Type B Assessment Plan?

43 C.F.R. § 11.37

(a)

Before including any Type B methodologies in the Assessment Plan, the trustee must confirm that at least one of the natural resources identified as potentially injured in the preassessment screen has in fact been exposed to the released substance.

(b)

Whenever possible, exposure shall be confirmed by using existing data, such as those collected for response actions by the On-Scene Coordinator, or other available studies or surveys of the assessment area.

(c)

Where sampling has been done before the completion of the preassessment screen, chemical analyses of such samples may be performed to confirm that exposure has occurred.

(d)

Where existing data are unavailable or insufficient to confirm exposure, one or more of the analytical methodologies provided in the Injury Determination phase subpart E of this part may be used.

(e)

Type B assessment methodologies shall be included in the Assessment Plan only upon meeting the requirements of this section.

Notes, amendments, and revision history

Amendments

[91 FR 42878, July 13, 2026]

Authority

Authority: 42 U.S.C. 9651(c), as amended.

Source

Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.

Amendments

[91 FR 42878, July 13, 2026]

§11.38. Assessment Plan—preliminary estimate of damages.

43 C.F.R. § 11.38

(a)

Requirement. When performing a type B assessment pursuant to the requirements of subpart E of this part, the authorized official shall develop a preliminary estimate of: the anticipated costs of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources for the injured natural resources; and the compensable value, as defined in § 11.83(c) of this part, of the injured natural resources, if the authorized official intends to include compensable value in the damage claim. This preliminary estimate is referred to as the preliminary estimate of damages. The authorized official shall use the guidance provided in this section, to the extent possible, to develop the preliminary estimate of damages.

(b)

Purpose. The purpose of the preliminary estimate of damages is for reference in the scoping of the Assessment Plan to ensure that the choice of the scientific, cost estimating, and valuation methodologies expected to be used in the damage assessment fulfills the requirements of reasonable cost, as that term is used in this part. The authorized official will also use the preliminary estimate of damages in the review of the Assessment Plan, as required in § 11.32(f) of this part, to ensure the requirements of reasonable cost are still met.

(c)

Steps. The preliminary estimate of damages should include consideration of the ability of the resources to recover naturally and, if relevant, the compensable value through the recovery period with and without possible alternative actions. The authorized official shall consider the following factors, to the extent possible, in making the preliminary estimate of damages:

(1)

The preliminary estimate of costs of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources should include consideration of a range of possible alternative actions that would accomplish the restoration, rehabilitation, replacement, and/or acquisition of the equivalent of the injured natural resources.

(i)

The preliminary estimate of costs should take into account the effects, or anticipated effects, of any response actions.

(ii)

The preliminary estimate of costs should represent the expected present value of anticipated costs, expressed in constant dollars, and should include direct and indirect costs, and include the timing of those costs. The provisions detailed in §§ 11.80-11.84 of this part are the basis for the development of the estimate.

(iii)

The discount rate to be used in developing the preliminary estimate of costs shall be that determined in accordance with the guidance in § 11.84(e) of this part.

(2)

The preliminary estimate of compensable value should be consistent with the range of possible alternatives for restoration, rehabilitation, replacement, and/or acquisition of equivalent resources being considered.

(i)

The preliminary estimate of compensable value should represent the expected present value of the anticipated compensable value, expressed in constant dollars, accrued through the period for the restoration, rehabilitation, replacement, and/or acquisition of equivalent resources to baseline conditions, i.e., between the occurrence of the discharge or release and the completion of (A) the restoration or rehabilitation of the injured natural resources to a condition where they can provide the level of services available at baseline, or (B) the replacement and/or acquisition of equivalent natural resources capable of providing such services. The estimate should use the same base year as the preliminary estimate of costs of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources. The provisions detailed in §§ 11.80-11.84 of this part are the basis for the development of this estimate.

(ii)

The preliminary estimate of compensable value should take into account the effects, or anticipated effects, of any response actions.

(iii)

The discount rate to be used in developing the preliminary estimate of compensable value shall be that determined in accordance with the guidance in § 11.84(e) of this part.

(d)

Content and timing.

(1)

In making the preliminary estimate of damages, the authorized official should rely upon existing data and studies. The authorized official should not undertake significant new data collection or perform significant modeling efforts at this stage of the assessment planning phase.

(2)

Where possible, the authorized official should make the preliminary estimate of damages before the completion of the Assessment Plan as provided for in § 11.31 of this part. If there is not sufficient existing data to make the preliminary estimate of damages at the same time as the assessment planning phase, this analysis may be completed later, at the end of the Injury Determination phase of the assessment, at the time of the Assessment Plan review.

(3)

The authorized official is not required to disclose the preliminary estimate before the conclusion of the assessment. At the conclusion of the assessment, the preliminary estimate of damages, along with its assumptions and methodology, shall be included in the Report of the Assessment as provided for in § 11.91 of this part.

(e)

Review. The authorized official shall review, and revise as appropriate, the preliminary estimate of damages at the end of the Injury Determination and Quantification phases. If there is any significant modification of the preliminary estimate of damages, the authorized official shall document it in the Report of the Assessment.

Notes, amendments, and revision history

Amendments

[59 FR 14282, Mar. 25, 1994. Redesignated at 61 FR 20610, May 7, 1996, as amended at 73 FR 57266, Oct. 2, 2008]

Authority

Authority: 42 U.S.C. 9651(c), as amended.

Source

Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.

Amendments

[59 FR 14282, Mar. 25, 1994. Redesignated at 61 FR 20610, May 7, 1996, as amended at 73 FR 57266, Oct. 2, 2008]