43 C.F.R. §§ 11.34–11.36

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.

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.

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

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

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

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.

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.