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

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.

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.

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.

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.

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.