May 28, 2008

Department of the Interior

Natural Resource Damage Assessment and Restoration Program

Mail Stop 3548

1849 C Street, NW.

Washington D.C. 20240

RE: RIN 1090-AA97, Natural Resource Damages for Hazardous Substances
(DOI-2008-0003-0001)

Dear Sir/Madam:

The Maine Department of Environmental Protection (MDEP) appreciates the
opportunity to submit comments related to the proposed changes to the
natural resource damage assessment regulations that were published in
the Federal Register on February 29, 2008 \[73 Fed.Reg. 11081\]. The
time and effort invested by federal trustee agencies, states, and other
stakeholders is appreciated.

MDEP notes that the proposed revisions largely leave the framework of
the existing rule intact and does not have any comments on the proposed
technical corrections. The proposed revisions also do not change the
optional nature of the existing regulations, and do not preempt state
law. Therefore, the proposed revisions are unlikely to significantly
affect Maine.

MDEP supports the Department of Interior's emphasis on restoration over
economic damages, and believes the addition of habitat equivalency
analysis (HEA) and resource equivalency analysis (REA) to the list of
available valuation methodologies will enable trustees to focus their
limited resources on identifying and coordinating appropriate
restoration projects instead of determining market values for resources
not regularly traded on the market. It is MDEP's experience that HEA and
REA methods are preferred by many responsible parties. Thus, HEA and REA
methods may become the standard methods for damage assessments. MDEP is
concerned that HEA and REA methods may not capture the full extent of
damages and that these methodologies may be misapplied in certain cases.
Despite these reservations, MDEP is confident that DOI and other
Trustees utilizing DOI regulations can reach successful
restoration-focused resolutions that utilize appropriate and thorough
valuation assessment methods.

The MDEP is also concerned with language in § 11.80 concerning the
discretionary waiver of claims for interim lost uses. While providing
flexibility for Trustees, MDEP finds that this proposed change may
create a new area of debate and negotiation with responsible parties
where none existed previously and that the proposed change weakens the
position of Trustees utilizing DOI regulations in seeking such damages.
It is MDEP's experience that interim lost uses are a critical part of
any claim for Natural Resource Damages, thus it is MDEP's preference is
that the words "or a portion of" be eliminated from § 11.80 of the
guidance. This is especially appropriate given the discretionary nature
of this section of the regulation. The MDEP also suggests that DOI
consider amending § 11.82 to allow the authorized official to determine
and select the most appropriate damage assessment method or methods from
among the possible alternatives.

The MDEP notes that the (i) Market Price, (ii) Appraisal, and (iv)
Travel Cost methodologies may require the use of trend analysis or
modeling to account for variation in values when used before restoration
is complete. MDEP recommends consideration of an adjustment factor to
account for future fluctuations in cost. The MDEP believes the proposed
rule would benefit from the addition of an example to clarify the (v)
Hedonic Pricing Methodology. Lastly, the MDEP suggests that the DOI
consider adding wording to the (viii) Conjoint Analysis methodology to
clarify that any natural resource service gains considered must be
natural resource gains in excess of the compensatory restoration values.

The MDEP appreciates this opportunity to submit comments regarding these
proposed changes. If you have any questions regarding this letter,
please contact me at (207) 287-7674.

Sincerely,

Scott D. Whittier, Director

Director of the Division of Oil and Hazardous Waste Facilities
Regulation

Maine Department of Environmental Protection