The advanced notice of proposed rulemaking signals DOI’s interest in developing faster and more cost-effective methods to quantify natural resource damage claims.

By Kegan A. Brown, Gary P. Gengel, G. Jack Mathews, and Thomas C. Pearce

On January 18, 2023, the US Department of the Interior (DOI) Office of Restoration and Damage Assessment issued an Advance Notice of Proposed Rulemaking (the Notice) requesting feedback on possible amendments to the “simplified” natural resource damage assessment (NRDA) regulations for discharges of oil or hazardous substances (known as “Type A” NRDA regulations). DOI proposes to “modernize the Type A process and develop a more flexible and enduring rule” by, among other things, broadening the universe of natural resource damage (NRD) claims that may be subject to Type A procedures.[1] DOI has requested public comments on possible revisions to the Type A NRDA regulations by March 20, 2023.

A revised standard highlights the need for parties to consider non-scope considerations when conducting environmental assessments for transactions.

By Kegan A. Brown, David S. Langer, Thomas C. Pearce, and G. Jack Mathews

The American Society for Testing and Materials (ASTM) Committee on Environmental Assessment, Risk Management and Corrective Action recently released an updated standard for conducting Phase I Environmental Site Assessments (ESAs). The newly revised standard, known as the ASTM E1527-21 standard, includes specific directions for how emerging contaminants, including per- and polyfluoroalkyl substances (PFAS), may be addressed in ESAs. Parties conducting due diligence or involved in transactions for which an ESA will likely be used to assess more than just the “all appropriate inquiry” component of a CERCLA defense should be aware of what the new standard requires for PFAS, especially as regulatory standards evolve or are adopted on a state and federal level. Parties should be aware that the new standard does not create any requirements that Phase I ESAs address any PFAS until EPA acts to list the specific PFAS at issue as a CERCLA hazardous substance, so there is a risk that a Phase I ESA will not cover a significant potential area of environmental concern.