[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR11.24]

[Page 230-231]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 11--NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents
 
                     Subpart B--Preassessment Phase
 
Sec. 11.24  Preassessment screen--information on the site.

    (a) Information on the site and on the discharge or release. The 
authorized official shall obtain and review readily available 
information concerning:
    (1) The time, quantity, duration, and frequency of the discharge or 
release;
    (2) The name of the hazardous substance, as provided for in Table 
302.4--List of Hazardous Substances and Reportable Quantities, 40 CFR 
302.4;
    (3) The history of the current and past use of the site identified 
as the source of the discharge of oil or release of a hazardous 
substance;
    (4) Relevant operations occurring at or near the site;
    (5) Additional oil or hazardous substances potentially discharged or 
released from the site; and
    (6) Potentially responsible parties.
    (b) Damages excluded from liability under CERCLA. (1) The authorized 
official shall determine whether the damages:
    (i) Resulting from the discharge or release were specifically 
identified as an irreversible and irretrievable commitment of natural 
resources in an environmental impact statement or other comparable 
environmental analysis, that the decision to grant the permit or license 
authorizes such commitment of natural resources, and that the facility 
or project was otherwise operating within the terms of its permit or 
license, so long as, in the case of damages to an Indian tribe occurring 
pursuant to a Federal permit or license, the issuance of that permit or 
license was not inconsistent with the fiduciary duty of the United 
States with respect to such Indian tribe; or
    (ii) And the release of a hazardous substance from which such 
damages resulted have occurred wholly before enactment of CERCLA; or
    (iii) Resulted from the application of a pesticide product 
registered under the Federal Insecticide, Fungicide, and Rodenticide 
Act, 7 U.S.C. 135-135k; or

[[Page 231]]

    (iv) Resulted from any other federally permitted release, as defined 
in section 101(10) of CERCLA; or
    (v) Resulting from the release or threatened release of recycled oil 
from a service station dealer described in section 107(a)(3) or (4) of 
CERCLA if such recycled oil is not mixed with any other hazardous 
substance and is stored, treated, transported or otherwise managed in 
compliance with regulations or standards promulgated pursuant to section 
3014 of the Solid Waste Disposal Act and other applicable authorities.
    (2) An assessment under this part shall not be continued for 
potential injuries meeting one or more of the criteria described in 
paragraph (b)(1) of this section, which are exceptions to liability 
provided in sections 107(f), (i), and (j) and 114(c) of CERCLA.
    (c) Damages excluded from liability under the CWA. (1) The 
authorized official shall determine whether the discharge meets one or 
more of the exclusions provided in section 311 (a)(2) or (b)(3) of the 
CWA.
    (2) An assessment under this part shall not be continued for 
potential injuries from discharges meeting one or more of the CWA 
exclusions provided for in paragraph (c)(1) of this section.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5173, Feb. 22, 1988]