Natl Assn Mftr v. DOI

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 1997 Decided January 16, 1998

No. 96-1268

National Association of Manufacturers,

Petitioner

v.

United States Department of the Interior,

Respondent

On Petition for Review of an Order of the

United States Department of the Interior

James R. Bieke argued the cause for the petitioner. Wil-

liam R. Galeota and Jan Amundson were on brief.

Greer S. Goldman, Attorney, United States Department of

Justice, argued the cause for the respondent. Lois J. Schif-

fer, Assistant Attorney General, and Naikang Tsao, Attorney,

were on brief.

Before: Ginsburg, Henderson and Tatel, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: The Compre-

hensive Environmental Response, Compensation, and Liabili-

ty Act of 1980, as amended, 42 U.S.C. ss 9601 et seq.,

(CERCLA) permits a "trustee" 1 to recover from a "potential-

ly responsible party" (PRP) 2 "damages for injury to, destruc-

tion of, or loss of natural resources, including the reasonable

costs of assessing such injury, destruction, or loss resulting

from ... a release" of a hazardous substance regulated under

CERCLA. 42 U.S.C. s 9607(a)(C). Subsection 301(c)(1) of

CERCLA, directs the President (acting through his designee,

the Secretary of the United States Department of Interior) to

promulgate regulations that "specify ... standard procedures

for simplified assessments [of natural resource damages]

requiring minimal field observation, including establishing

measures of damages based on units of discharge or release

or units of affected area." 42 U.S.C. s 9651(c). A damage

________

1 A "trustee" is a federal, state or Indian tribal official who, in

accordance with 42 U.S.C. s 9607(f)(2), is designated to "act on

behalf of the public as [a] trustee[ ] for natural resources."

2 Under CERCLA, a PRP is:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous

substance owned or operated any facility at which such hazard-

ous substances were disposed of,

(3) any person who by contract, agreement, or otherwise ar-

ranged with a transporter for transport for disposal or treat-

ment, of hazardous substances owned or possessed by such

person, by any other party or entity, at any facility or incinera-

tion vessel owned or operated by another party or entity and

containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous sub-

stances for transport to disposal or treatment facilities, inciner-

ation vessels or sites selected by such person, from which there

is a release, or a threatened release which causes the incur-

rence of response costs, of a hazardous substance, ...

42 U.S.C. s 9607(a).

assessment performed according to these procedures is enti-

tled to "the force and effect of a rebuttable presumption ...

in any administrative or judicial proceeding." 42 U.S.C.

s 9607(f)(2)(C).

This is a challenge to the final rule of the Department of

the Interior (DOI), entitled "Natural Resource Damage As-

sessments--Type A Procedures," 61 Fed. Reg. 20,560 (1996)

(codified at 43 C.F.R. pt. 11) (hereinafter 1996 Type A rule),

that partially implements CERCLA section 301(c), 42 U.S.C.

s 9651(c). The petitioner, National Association of Manufac-

turers (NAM), claims that the Type A final rule violates

CERCLA and the Administrative Procedure Act, 5 U.S.C.

ss 551 et seq., (APA), and therefore must be vacated for one

or more of the following reasons: (1) the rule permits dam-

ages to be calculated without on-site verification that a natu-

ral resource has in fact been injured and that the injury is in

fact attributable to the particular release in question; (2) the

rule does not require a trustee to consider, in calculating

natural resource damage (NRD), an alternative to restoration

of an adversely affected resource (i.e., replacing a damaged

resource or acquiring its equivalent); (3) the rule arbitrarily

and capriciously fails to relate selected restoration alterna-

tives to the "services" provided by the resource; 3 (4) the rule

allows recovery for purely speculative losses regarding the

affected resource's ability to assimilate future releases; (5)

the rule authorizes recovery of private losses related to

commercial fishing and hunting; (6) the rule's databases and

computer submodels are not the "best available procedures"

for determining NRD and invalidly rely on outdated studies

and information or on suspect methodologies or both; (7) the

rule permits a trustee to use Type A and Type B procedures

________

3 Natural resource "services" consist of "the physical and biologi-

cal functions performed by the resource including the human uses

of those functions. These services are the result of the physical,

chemical, or biological quality of the resource." 43 C.F.R.

s 11.14(nn) (1996).

in combination to assess NRD from a single release; 4 and (8)

the rule provides for calculation of NRD resulting from

releases or discharges of oil, notwithstanding the enactment

of the Oil Pollution Act of 1990, 33 U.S.C. ss 2701 et seq.,

which authorizes the National Oceanic and Atmospheric Ad-

ministration to regulate oil releases or discharges.

DOI contends that NAM's first and fifth claims are untime-

ly, the third claim was not raised below, one of the arguments

included in NAM's seventh claim is not ripe for review and

the eighth claim should be dismissed for lack of jurisdiction.

Additionally, DOI responds on the merits, arguing that its

interpretation of the relevant CERCLA provisions is entitled

to deference under Chevron USA, Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). In addition, DOI

contends that its damage submodels are otherwise reason-

able, scientifically valid and adequately supported by credible

studies.

We conclude that NAM failed to raise the third claim below

and that it lacks standing to bring the eighth claim. Regard-

ing the remaining claims, we conclude that DOI's interpreta-

tion of relevant CERCLA provisions is entitled to deference

under step two of the familiar Chevron analysis and that its

damage submodels suffice. Accordingly, we deny NAM's

request to set aside DOI's 1996 Type A rule, as amended.5

I. BACKGROUND

Section 301(c) of CERCLA recites:

________

4 The "Type A" and "Type B" titles come from the clauses of

subsection 301(c)(2): clause "A" requires DOI to develop "standard

procedures for simplified assessments" and clause "B" requires DOI

to develop "alternative protocols for conducting assessments in

individual cases." 42 U.S.C. s 9651(c)(2).

5 DOI informed the court that it promulgated certain technical

corrections to the May 1996 rule on November 10, 1997. See

Natural Resource Damage Assessments--Type A Procedures, 62

Fed. Reg. 60,457 (1997) (hereinafter Revisions to 1996 Type A rule).

As discussed infra notes 16 and 23, the corrections moot two of

NAM's challenges to the Type A procedures.

(1) The President, acting through Federal officials

designated by the National Contingency Plan published

under section 9605 of this title, shall study and, not later

than two years after December 11, 1980 shall promulgate

regulations for the assessment of damages for injury to,

destruction of, or loss of natural resources resulting from

a release of oil or a hazardous substance for the purposes

of this chapter and section 1321(f)(4) and (5) of Title 33.

Notwithstanding the failure of the President to promul-

gate the regulations required under this subsection on

the required date, the President shall promulgate such

regulations not later than 6 months after October 17,

1986.

(2) Such regulations shall specify (A) standard proce-

dures for simplified assessments requiring minimal field

observation, including establishing measures of damages

based on units of discharge or release or units of affected

area, and (B) alternative protocols for conducting assess-

ments in individual cases to determine the type and

extent of short- and long-term injury, destruction, or

loss. Such regulations shall identify the best available

procedures to determine such damages, including both

direct and indirect injury, destruction, or loss and shall

take into consideration factors including, but not limited

to, replacement value, use value, and ability of the eco-

system or resource to recover.

(3) Such regulations shall be reviewed and revised as

appropriate every two years.

42 U.S.C. s 9651(c). Trustees must retain sums recovered

for NRD "without further appropriation, for use only to

restore, replace, or acquire the equivalent of [the damaged]

resources." 42 U.S.C. s 9607(f)(1). Further, "[t]he measure

of damages in any action ... [is] not ... limited by the sums

which can be used to restore or replace" the affected re-

sources, although CERCLA proscribes "double recovery ...

for natural resource damages, including the costs of damage

assessment or restoration, rehabilitation, or acquisition for

the same release and natural resource." 42 U.S.C.

s 9607(f)(1).

As the final sentence of subsection 301(c)(1) foresaw, devel-

opment of Type A and Type B procedures has not been

accomplished as expeditiously as the Congress directed. To-

day, more than 17 years after section 301(c) of CERCLA was

enacted, DOI has developed "simplified assessment[ ]" (i.e.,

Type A) procedures for only two aquatic environments: (1)

the Great Lakes environments and (2) coastal and marine

environments. The latter were the first Type A procedures

developed; they were promulgated in 1987, see Natural Re-

source Damage Assessments, 52 Fed. Reg. 9042 (1987) (codi-

fied at 43 C.F.R. pt. 11 (1988)) (hereinafter 1987 Type A rule),

and subsequently reviewed by this court, see Colorado v.

DOI, 880 F.2d 481 (D.C. Cir. 1989). In Colorado we upheld

the 1987 Type A rule in part and vacated it in part, relying on

our companion decision reviewing a challenge to DOI's Type

B rule. See Ohio v. DOI, 880 F.2d 432 (D.C. Cir. 1989)

[hereinafter Ohio II]. After Colorado--in which we stated

that "[w]e fully expect DOI to act as expeditiously as possi-

ble," 880 F.2d at 491--DOI spent almost seven more years

revising the Type A procedures and adding to them submo-

dels for assessing NRD in Great Lakes environments. See

1996 Type A rule, 61 Fed. Reg. at 20,560.

In light of the delay, it is indeed fortunate that a trustee

has authority under CERCLA to settle claims for NRD

without recourse to either Type A or Type B procedures.

See 42 U.S.C. s 9622. Even if claims are not settled, a

trustee is under no obligation to use Type A or Type B

procedures to calculate damages--although the trustee must

use the procedures if it wishes to use the rebuttable presump-

tion provided for in subsection 107(f))(2)(C) of CERCLA, 42

U.S.C. s 9607(f)(2)(C). See 43 C.F.R. s 11.10 (1996).

If a trustee decides that a formal assessment is needed to

effect recovery of NRD, the trustee must complete four

administrative steps: (1) Preassessment, (2) Assessment

Plan, (3) Assessment and (4) Post Assessment. 1996 Type A

rule, 61 Fed. Reg. at 20,562. The first step, Preassessment,

consists of "rapid review of readily available information that

focuses on resources for which the Federal or State agency or

Indian tribe may assert trusteeship under section 107(f) or

section 126(d) of CERCLA." 43 C.F.R. s 11.23(b) (1996).

The purpose of the Preassessment is to "ensure that there is

a reasonable probability of making a successful claim before

monies and efforts are expended in carrying out an assess-

ment." Id.

The second step, the Assessment Plan, is undertaken "to

ensure that the assessment is performed in a planned and

systematic manner and that methodologies selected ... for a

type A assessment or ... for a type B assessment ... can be

conducted at a reasonable cost." 43 C.F.R. s 11.30(b). "The

Assessment Plan must identify and document the use of all of

the type A and/or type B procedures that will be performed

... [and] be of sufficient detail to serve as a means of

evaluating whether the approach used for assessing the dam-

age is likely to be cost-effective and meets the definition of

reasonable cost, as those terms are used" in the applicable

regulations. Id. s 11.31(a)(1)-(2).

A trustee can use Type A procedures if six environmental

conditions are met:

(a) The released substance entered an area covered by

the [coastal and marine or Great Lakes procedures] ...

(b) The [type A procedures] cover the released sub-

stance[;] ...

(c) The released substance entered the water at or

near the surface[;] ...

(d) At the time of the release, winds did not vary

spatially over the area affected by the release in a way

that would significantly affect the level or extent of

injuries;

(e) The authorized official is not aware of any reliable

evidence that, for species that are likely to represent a

significant portion of the claim, the species biomass is

significantly lower than the species biomass assigned by

the [relevant computer submodels][; and] ...

(f) Subsurface currents either: are not expected to

significantly affect the level or extent of injuries; or are

reasonably uniform with depth over the water column in

the area affected by the release.

43 C.F.R. s 11.34 (1996). If a release is within these environ-

mental parameters, a preliminary assessment of damages is

performed according to Type A procedures and included in

the draft Assessment Plan made available for public review

and comment. Id. s 11.43. If the preliminary assessment

indicates that damages will exceed $100,000, a trustee must

either "(1) limit the portion of [the trustee's] claim calculated

with the type A procedure to $100,000; or (2) compute all

damages using type B procedures." Id. s 11.42(b). Never-

theless "[t]he $100,000 limit applies only to damages calculat-

ed by a type A procedure and does not limit damages

calculated through supplemental type B studies." 1996 Type

A rule, 61 Fed. Reg. at 20,563.

In deciding whether to use Type A or Type B procedures

(or some combination of the two), the trustee must "weigh[ ]

the difficulty of collecting site-specific data against the suita-

bility of the averaged data and simplifying assumptions in the

type A procedure for the release being assessed." 43 C.F.R.

s 11.35(a) (1996). The trustee may elect to use Type B

procedures if "they can be performed at a reasonable cost and

if the increase in accuracy outweighs the increase in assess-

ment costs." Id. Even if a trustee decides to use Type A

procedures, a PRP may nonetheless insist on Type B proce-

dures. See id. s 11.35(b); 1996 Type A rule, 61 Fed. Reg. at

20,562.

A trustee may use both Type A and Type B procedures to

calculate NRD for the same release if the following criteria

are met:

(1) The type B procedures are cost-effective and can

be performed at a reasonable cost;

(2) There is no double recovery; and

(3) The type B procedures are used only to determine

damages for injuries or compensable values that do not

fall into the categories addressed by the type A proce-

dure.

43 C.F.R. s 11.36(a) (1996). If a trustee decides to use both

kinds of procedures, it "must document in the Assessment

Plan how [it] intend[s] to prevent double recovery." 1996

Type A rule, 61 Fed. Reg. at 20,563.

The third step of the process, "Assessment," is subdivided

into three phases:

Injury Determination; Quantification; and Damage De-

termination. In Injury Determination, trustees deter-

mine whether any natural resources have been injured.

If trustees determine that resources have been injured,

they proceed to Quantification, in which they quantify the

resulting change in baseline conditions. "Baseline" con-

ditions are the conditions that would have existed had the

release not occurred. Finally, in Damage Determination,

trustees calculate the monetary compensation to be

sought as damages for the natural resource injuries.

Damages include two components: (1) the cost of restor-

ing, rehabilitating, replacing, and/or acquiring the equiva-

lent of the injured natural resources; and (2) the eco-

nomic value lost by the public pending recovery of the

resources (compensable value).

When trustees use type B procedures, they perform

Injury Determination, Quantification, and Damage De-

termination through laboratory and field studies....

When trustees use a type A procedure, they perform

Injury Determination, Quantification, and Damage De-

termination through a computer model....

Trustees must supply a number of data inputs to

operate the [Type A submodels]. The rule also requires

trustees to modify certain data contained in the models if

they have more reliable information.... After trustees

supply the data inputs and modifications, the models

themselves perform the remaining calculations necessary

to establish if there has been an injury, quantify the

extent of injury, select appropriate restoration actions,

and value economic losses. With the availability of these

computer models, trustees will now be able to pursue

compensation for cases in which the cost of detailed type

B studies is prohibitive.

1996 Type A rule, 61 Fed. Reg. at 20,562-63. While the Type

A computer submodels take into account a number of "site

specific factors," including "physical variations among geo-

graphic areas, differences in the toxicity and physical charac-

teristics of hazardous substances, seasonal and temperature

effects, and differences in the biological productivity of the

spill site," they do not require on-site testing, nor do they

require empirical testing to establish a causal link between

the release and any observable injury. Id. at 20,563.

Four computer programs comprise the Type A submodels

and perform the damage calculations at the Assessment

stage: (1) the Physical Fates Submodel, (2) the Biological

Effects Submodel, (3) the Restoration Submodel and (4) the

Compensable Value Submodel. 1996 Type A rule, 61 Fed.

Reg. at 20,565-67. "The physical fates submodel estimates

the distribution of the released substance on the water sur-

face, along shorelines, in the water column, and in sediments

over time." Id. at 20,565. "The biological effects submodel

determines whether certain types of natural resource injuries

have resulted from the release and, if so, quantifies those

injuries." Id. "The restoration submodel estimates the cost,

if any, of restoring the injured resources." Id. Finally,

"[c]ompensable value, as computed by the compensable value

submodel, is the sum of certain economic use values lost to

the public pending reestablishment of baseline conditions

through either natural recovery or active restoration, as

determined by the restoration submodel." Id. at 20,566.

The fourth and final step of the process is the Post-

Assessment phase, at which time the trustee prepares a

"Report of Assessment that consists of the Preassessment

Screen Determination, the Assessment Plan, and the informa-

tion" used by the Type A submodels to calculate damages.

43 C.F.R. s 11.90(a) (1996). A copy of the report is then

attached to the demand letter the trustee sends the PRP. Id.

s 11.91. Finally, the trustee prepares a Restoration Plan, as

required by section 111(i) of CERCLA, 42 U.S.C. s 9611,

which details "how the monies [recovered] will be used to

address natural resources, specifically, what restoration, reha-

bilitation, replacement, or acquisition of the equivalent re-

sources will occur." Id. s 11.93(a).

II. DISCUSSION

The yardstick by which we assess the petitioner's APA and

Chevron challenges to the 1996 Type A rule is the one we

used in Colorado:

We review DOI's type A rules, promulgated after

informal notice and comment rulemaking procedures un-

der the Administrative Procedure Act, see 5 U.S.C.

s 553(c), under the familiar "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law" standard, see id. s 706(2)(A). Under this standard,

we are mindful a reviewing court is "not to substitute its

judgment for that of the agency." Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814,

823, 28 L.Ed.2d 136 (1971).

Moreover, it is well-established that when presented

with "a pure question of statutory construction," a re-

viewing court's "first job is to try to determine congres-

sional intent using 'traditional tools of statutory construc-

tion,' " NLRB v. United Food & Commercial Workers,

Local 23, 484 U.S. 112, 108 S.Ct. 413, 421, 98 L.Ed.2d 429

(1987) (quoting INS v. Cardozo-Fonseca, 480 U.S. 421,

107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987)), for if

"Congress has directly spoken to the precise question at

issue," then "the court, as well as the agency, must give

effect to the unambiguously expressed intent of Con-

gress," Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-

43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). If,

however, "the statute is silent or ambiguous with respect

to the specific issue," id. at 843, 104 S.Ct. at 2782, then

the question becomes whether the agency charged with

implementing the statute--DOI in this case--has made a

"reasonable" interpretation, id. at 845, 104 S.Ct. at 2783,

i.e., one that is "rational and consistent with the statute."

United Food & Commercial Workers, 108 S.Ct. at 421.

880 F.2d at 486.

Thus, in reviewing an APA challenge to an agency's techni-

cal judgments incorporated in a submodel, "the agency's

choice of model and its application must be respected when

the record discloses that the agency examined the relevant

data and articulated a reasoned basis for its decision." Ohio

II, 880 F.2d at 479. Similarly, when reviewing an agency's

technical judgments under step two of Chevron, we ask

whether the agency's choices are "reasonable and consistent

with congressional intent, and therefore worthy of deference."

Id. at 477; accord Kennecott Utah Copper Corp. v. DOI, 88

F.3d 1191, 1225 (D.C. Cir. 1996) (noting need to "defer to the

agency's decision about how to strike th[e] balance" between

conflicting statutory and policy goals "unless [the decision] is

unreasonable"). Moreover, in applying both of these stan-

dards to the scientific judgment of an agency, we do not

"review scientific judgments of the agency ... as the chemist,

biologist, or statistician that we are neither qualified by

training nor experience to be, but as a reviewing court

exercising our narrowly defined duty of holding agencies to

certain minimal standards of rationality," Troy Corp. v.

Browner, 120 F.3d 277, 283 (D.C. Cir. 1997) (internal quota-

tion marks omitted), or, in the context of Chevron step two,

assuring at a minimum the reasonableness of the judgment in

light of the requirements imposed (or discretion granted) by

the authorizing statute.

A. Verification of Injury and Causation

NAM first argues that DOI's Type A rule, which relies on

computer submodels to calculate the types and amounts of

damages that are rebuttably presumed to result from a

particular release, violates subsections 107(a)(C) and 301(c)(1)

of CERCLA, which limit recovery to damages "resulting from

a release." 42 U.S.C. ss 9607(a)(C), 9651(c)(1). Since DOI's

computer submodels require only limited, site-specific data to

calculate damages, NAM contends that they improperly re-

lieve the trustee of its burden to demonstrate that a particu-

lar release in fact caused injury to a specific natural resource.

Further, NAM reasons that even if such submodels could in

theory be used to calculate NRD, the submodels DOI has

developed are too crude to reliably predict injuries to natural

resources that are likely to "result from" releases and are

therefore inconsistent with the command of subsection

301(c)(2) to "identify the best available procedures to deter-

mine ... damages." See Ohio II, 880 F.2d at 462 ("Congress

directed DOI to select ... 'best available' methodologies for

determining damages, 42 U.S.C. s 9651(c)(2), and a proce-

dure that permitted unduly speculative assessments would

not fulfill this intent."). We reject both arguments on their

merits.

(1) Timeliness of challenge

DOI first responds that NAM's challenge is time-barred

under section 113(a) of CERCLA, 42 U.S.C. s 9613(a), which

requires that a petition for review of a final regulation be

brought "within 90 days from the date of [its] promulgation."

DOI reasons that since its 1987 Type A rule relied on the

same kind of predictive computer submodels to establish

causation and injury, NAM's challenge now is untimely be-

cause it should have been brought, if at all, in 1987. DOI is

mistaken.

While an agency need not subject settled policy or estab-

lished statutory interpretation to renewed legal challenge

whenever it revises a regulation, "the period for seeking

judicial review may be made to run anew when the agency in

question by some new promulgation creates the opportunity

for renewed comment and objection." Ohio v. EPA, 838 F.2d

1325, 1329 (D.C. Cir. 1988) [hereinafter Ohio I]. Thus, in Ohio

I we held that, although the petitioner had an opportunity to

comment on the relevant provision in the original regulation,

it was not barred from challenging the provision in the

revised regulation because the agency had republished the

provision, explained it anew and responded to at least one

comment directed to it. Id. at 1328-29; see also Kennecott,

88 F.3d at 1213 ("[J]udicial review of longstanding regulation

is not barred when an agency reopens an issue covered in, or

changes its interpretation of, that regulation; e.g., if an

agency in the course of a rulemaking proceeding solicits

comments on a pre-existing regulation or otherwise indicates

its willingness to reconsider such a regulation by inviting and

responding to comments, then a new review period is trig-

gered."). However, "[t]he 'reopening rule' of [Ohio I] is not a

license for bootstrap procedures by which petitioners can

comment on matters other than those actually at issue, goad

an agency into a reply, and then sue on the grounds that the

agency had re-opened the issue." American Iron & Steel

Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989), cert. denied,

497 U.S. 1003 (1990). Thus, "when the agency merely re-

sponds to an unsolicited comment by reaffirming its prior

position, that response does not create a new opportunity for

review." Kennecott, 88 F.3d at 1213.

Moreover, "the appropriate way to challenge a longstand-

ing regulation on the ground that it is 'violative of statute' is

ordinarily 'by filing a petition for amendment or rescission of

the agency's regulations, and challenging the denial of that

petition.' " Id. at 1214 (quoting Public Citizen v. Nuclear

Regulatory Comm'n, 901 F.2d 147, 152 (D.C. Cir.), cert.

denied, 498 U.S. 992 (1990)). But "where an agency reit-

erates a rule or policy in such a way as to render the rule or

policy subject to renewed challenge on any substantive

grounds, a coordinate challenge that such a rule or policy is

contrary to law" need not proceed by amendment or rescis-

sion petition. Public Citizen, 901 F.2d at 152-53. In such

circumstances, to require that an administrative petition pre-

cede the "coordinate challenge" to the lawfulness of the

agency's provision "would be a waste of time and resources."

Kennecott, 88 F.3d at 1214.

An agency may be deemed to have "constructively re-

opened" a previously unchallenged decision if its original

rulemaking did not give adequate notice or incentive to

contest the agency's decision. For example, as a result of the

partial invalidation of the 1986 Type B rule in the Ohio II

litigation,

our invalidation of that rule might have changed the

stakes of a court challenge. In this situation, we would

likely hold that Interior's adherence to its resolution of

certain issues that arose in the course of the 1986

proceeding was, even if not expressly reopened in its

1994 rulemaking, constructively reopened by the change

in regulatory context. For us to foreclose review of the

agency's decision to adhere to the status quo ante under

changed circumstances, on the grounds that the agency

had not evidenced a willingness to reconsider the issue,

would be to deny the significance of our own earlier

ruling.

Kennecott, 88 F.3d at 1214. Thus, "[b]efore any litigant

reasonably can be expected to present a petition for review of

an agency rule, he first must be put on fair notice that the

rule in question is applicable to him." Recreation Vehicle

Indus. Ass'n v. EPA, 653 F.2d 562, 568 (D.C. Cir. 1981).

Accordingly, in Recreation Vehicle the court held that be-

cause it was unclear that EPA's final rule on noise emission

levels for medium and heavy trucks applied to motor homes,

"[t]he agency cannot now take advantage of the obscurity of

its intentions in order to defeat [the petitioner's] rights

statutorily conferred." Id.

Here, DOI's substantial revisions to the Type A procedures

significantly altered the "regulatory context." In particular,

the circumstances in which a trustee may elect to use Type A

procedures to calculate damages have been significantly modi-

fied by the 1996 revisions. For example, a trustee may now

supplement Type A procedures with selected Type B proto-

cols, it may use Type A procedures in circumstances where

species mortality may not be the anticipated principal adverse

effect, it may use Type A procedures even if the release does

not result in closing a fishing, beach or hunting area and it

may now utilize Type A procedures for releases in both Great

Lakes and coastal and marine environments. Compare 43

C.F.R. s 11.33 (1987) with 43 C.F.R. ss 11.34, 11.35, 11.36,

11.42(b) (1996).6 Thus, although DOI may not have intended

to reopen the issue of the predictive aspect of its computer

submodels' calculations of injury and causation, see 1996 Type

A rule, 61 Fed. Reg. at 20,582, the different regulatory

context wrought by the 1996 rule "significantly alter[ed] the

stakes of judicial review," Kennecott, 88 F.3d at 1227, and

thereby constructively reopened to challenge the predictive

nature of the computer submodels.

________

6 Kennecott also holds that there is no "constructive reopening" if

"parties had adequate notice of a forthcoming change that might

alter their incentive to seek judicial review." 88 F.3d at 1214.

There, because potential litigants were on notice during the pen-

dency of legal challenges to DOI's Type B rule (i.e., Ohio II) "that

restoration cost rather than market value could become the pre-

dominant basis for damage assessments," we held that litigants

"had an ample incentive at that time [i.e., before 1989 decision in

Ohio II] to protest any provision [of the 1986 Type B rule] that

might inflate restoration costs." Id. at 1215.

This case is distinguishable. Although DOI issued an advance

notice of proposed rulemaking (ANPR) for the Great Lakes proce-

dures in June 1988 (see Natural Resource Damage Assessments, 53

Fed. Reg. 20,143, 20,143-46 (1988)) while our review of the 1987

Type A rule was still pending, we do not believe that the ANPR was

sufficient to put NAM or other interested parties on notice that the

yet-to-be-developed Type A procedures for the Great Lakes would

permit calculation of NRD for a release without on-site verification

of injury and causation. In contrast to the Type B provisions at

issue in Kennecott, the Great Lakes submodels were not a part of

the Type A rule that DOI initially promulgated in 1987. Thus,

unlike the Ohio II challenge, the Colorado litigation did not alert

NAM and other potentially interested parties that a vestigial provi-

sion of the 1987 rule might have added significance as a result of

that litigation. Therefore, Recreational Vehicles rather than Ken-

necott supplies the rule of decision: "Before any litigant reasonably

can be expected to present a petition for review, he first must be

put on fair notice that the rule in question is applicable to him."

653 F.2d at 568.

(2) Merits of challenge

DOI fares better responding to the merits of NAM's chal-

lenge--that CERCLA sections 107(a)(C) and 301(c)(1) autho-

rize a trustee to recover damages only for those injuries

"resulting from ... a release"; DOI's Type A procedures

permit a trustee to recover damages without any on-site,

empirical verification that injury has in fact "result[ed] from"

a particular release; therefore, DOI's predictive damage cal-

culators are violative of CERCLA.

Contrary to NAM's contentions, we find nothing in the

relevant provisions of CERCLA that requires greater proof

of causation and injury than is provided by DOI's predictive

computer submodels. Regarding causation, this court has

repeatedly held that CERCLA is ambiguous on the precise

question of what standard of proof is required to demonstrate

that natural resource injuries were caused by, or "result[ ]

from," a particular release. See Ohio II, 880 F.2d at 472

("[W]hile we agree with petitioners that Congress expressed

dissatisfaction with the common law as a norm in several

areas of damage assessment, we conclude that CERCLA is at

best ambiguous on the question of whether the causation-of-

injury standard under s 107(a)(C) must be less demanding

than that of the common law."); Kennecott, 88 F.3d at 1224

("CERCLA left it to Interior to define the measure of dam-

ages in natural resources damage assessment cases....

While the statutory language requires some causal connection

between the element of damages and the injury--the dam-

ages must be 'for' an injury 'resulting from a release of oil or

a hazardous substance'--Congress has not specified precisely

what that causal relationship should be.") (citation omitted).

Similarly, we find nothing in the "resulting from" language

of subsections 107(a)(C) and 301(c)(1), or other provisions of

CERCLA, to indicate that the Congress unambiguously in-

tended a particular kind or quantity of causation and injury

proof as a prerequisite to recovery of NRD. While we have

noted that the "best available procedures" language of sub-

section 301(c)(2) indicates that it would be inconsistent with

CERCLA to permit "unduly speculative assessments," Ohio

II, 880 F.2d at 462, we have never held that simply because

assessments procedures are in some measure "speculative" or

"predictive" they are contrary to CERCLA's "best available

procedures" admonition. Rather, predictive submodels that

represent rational scientific judgments about the probability

that a particular release will cause a specific type and amount

of injury are consistent with the Congress's intent to develop

a "standardized system for assessing such damage which is

efficient as to both time and cost." S. Rep. No. 96-848, at 85

(1980); 7 cf. Ohio II, 880 F.2d at 455 ("[S]upport for the

proposition that Congress adopted common-law damage stan-

dards wholesale into CERCLA is slim to nonexistent.").

Moreover, contrary to NAM's suggestions, the fact that the

Congress may have generally viewed recovery of NRD as a

"compensatory remedy"--see 1996 Type A rule, 61 Fed. Reg.

at 20,582; 42 U.S.C. s 9607(f)(1)--does not mean that the

Congress intended to require adducement of a particular

quality and quantity of proof of injury, loss or destruction

before allowing recovery. Rather, DOI developed the Type A

procedures so that the public would be compensated for the

NRD resulting from minor spills; the kind of spill ill suited

for the expensive and resource-intensive Type B procedures.

Cf. 1996 Type A final rule, 61 Fed. Reg. at 60,572 ("Because

of the cost involved in performing site-specific type B studies,

trustees have rarely pursued damage claims for minor releas-

es.").

Accordingly, we proceed to the second step of the Chevron

analysis, where "we ask whether [DOI] has adopted a reason-

able interpretation of the statute--that is whether the agency

considered the matter in a detailed and reasoned fashion and

whether the interpretation is arguably consistent with the

underlying statutory scheme in a substantive sense." Kenne-

________

7 As we observed in Colorado, "[b]ecause the House concurred in

the Senate bill [that became CERCLA] without amendment, see 126

Cong. Rec. 31,950-82 (1980), th[is] Senate report is powerful evi-

dence of congressional intent." 880 F.2d at 487.

cott, 88 F.3d at 1206 (internal quotations omitted); accord

Ohio II, 880 F.2d at 441 ("If ... the statute is ambiguous or

silent on a particular issue, this court must assume that

Congress implicitly delegated to the agency the power to

make policy choices that represent a reasonable accommoda-

tion of conflicting policies that are committed to the agency's

care by the statute.... In that event, the court must defer

to the agency's interpretation of the statute so long as it is

reasonable and consistent with the statutory purpose.").8 Ac-

cording DOI's interpretation the deference it is due under

Chevron step two, we conclude that DOI's reliance on pre-

dictive computer submodels to establish causation and injury

is both reasonable and consistent with the commands of

CERCLA.

Subsection 301(c)(2), 42 U.S.C. s 9651(c)(2), the only

CERCLA provision that speaks directly to the form and

content of Type A procedures, states that the "regulations

shall specify ... standard procedures for simplified assess-

ments requiring minimal field observation, including estab-

lishing measures of damages based on units of discharge or

release or units of affected area ...." (emphasis added).

________

8 Nor can our decision in General Electric Co. v. United States

Department of Commerce, 128 F.3d 767 (D.C. Cir. 1997), be read to

require a different conclusion here. In General Electric we were

asked to pass on the National Oceanic and Atmospheric Administra-

tion's (NOAA's) regulation regarding NRD claims for releases of oil

or petroleum products covered by the Oil Pollution Act of 1990

(OPA). While we upheld NOAA's determination that its computer

submodels should be " 'reliable and valid for the particular inci-

dent,' " 128 F.3d at 772 (quoting 15 C.F.R. s 990.27(a)(3)), we did

not conclude that such validation procedures were a necessary

feature of the regulations authorized by OPA, nor did we suggest

that the related but independent regulatory scheme established by

CERCLA contained any such requirement. Further, although we

briefly noted that NOAA's regulations provided a sufficient stan-

dard by which to assess the agency's exercise of discretion in

calculating damages from oil releases, 128 F.3d at 778-79, we did

not suggest that such a provision was essential for a court to assess

the reasonableness and accuracy of damage calculations.

DOI's Type A submodels appear consistent with the charge to

develop standardized and simplified assessment procedures

that require minimal field observation and that estimate

damages according to the type, amount (i.e., "units of dis-

charge or release"), location (i.e., "units of affected area") and

other objective characteristics of a release. As DOI itself

observed, "[i]nherent in the concept of developing unit values

from existing studies is the notion of making assumptions in

the absence of empirical data and applying average values

across a range of nonidentical items." 1996 Type A rule, 61

Fed. Reg. at 20,571. The Senate committee that favorably

reported on the Senate bill that became CERCLA also envi-

sioned streamlined Type A procedures that would "require as

little fieldwork as possible, and rely on a combination of

habitat values, tables of values for individual species, and

previously conducted surveys and laboratory studies, related

to units of discharge or units of affected area." S. Rep. No.

96-848, at 86; cf. Colorado, 880 F.2d at 489-90 (declining to

"second-guess DOI's technical determination" to use comput-

er submodels, notwithstanding legislative history indicated

use of tables would be consistent with congressional intent).

Thus, DOI's interpretation of subsection 301(c)(2)(A) to per-

mit the use of predictive computer submodels to determine

causation and injury is plainly reasonable. To the extent that

the "resulting from" language of subsections 107(a)(C) and

301(c)(1) suggests a need for more definite proof of injury and

causation than is suggested by subsection 301(c)(2)(A), we

find that DOI's decision to address the potential inconsistency

in legislative purpose by development of predictive computer

submodels is "a reasonable accommodation of conflicting poli-

cies that are committed to the agency's care by the statute."

Ohio II, 880 F.2d at 441.9

________

9 DOI explained its resolution of the potentially conflicting com-

mands of subsections 107(a)(C), 301(c)(1) and 301(c)(2)(A) as follows:

There is a tension between the statutory provision requiring

trustees to demonstrate that injury "resulted from" a release

and the provision requiring the development of simplified as-

sessment procedures that involve "minimal field observation."

As noted in the cases cited by commenters, the requirement

Nor is NAM's assertion that it is unreasonable for DOI to

require site-specific verification of damage, i.e., a "reality

check," for its Type B procedures but not for its Type A

procedures persuasive. The assertion ignores the significant

differences between Type A and Type B procedures that both

the text and the history of CERCLA affirm. In contrast to

the "standard[ized]" procedures called for in subsection

301(c)(2)(A), the Type B procedures are "for conducting as-

sessments in individual cases to determine the type and

extent of short- and long-term injury, destruction, or loss."

42 U.S.C. s 9651(c)(2)(B) (emphasis added). The legislative

history of subsection 301(c)(2) indicates that the Type A

procedures are intended "to effectively deal with damage

assessment in most 'minor' releases of hazardous material," S.

Rep. No. 96-848, at 86 (1980), whereas the Type B proce-

________

that trustees demonstrate that injury resulted from the release

indicates that Congress intended that natural resource damage

liability be compensatory. PRPs are to be held liable not just

because they are responsible for a release but because they are

responsible for a release that caused an adverse effect. On the

other hand, by requiring the development of type A proce-

dures, Congress recognized that assessment work can be ex-

pensive and time consuming. In the case of minor releases, it

is often not cost-effective or feasible to conduct more than

minimal field observations. The Department has struggled to

resolve the tension between these two statutory requirements

by developing Type A procedures that rely on computer models

to predict actual site-specific effects to the maximum extent

practicable but do not require on-site verification of the models'

injury predictions.

* * *

In fact, as discussed above, the legislative history of

CERCLA suggests that the Department would have been

justified in developing a look-up table or compensation formula

as a type A procedure. Instead, the type A models use both

site-specific information provided by the trustees and biological

and environmental information about the spill site contained in

the database to approximate more precisely the actual effects

of the release.

1996 Type A rule, 61 Fed. Reg. at 20,581-82.

dures are needed to address "large or unusually damaging

releases and would be used to guide the site-specific damage

assessment," id. We therefore agree with DOI that the text

and the history of subsection 301(c)(2) fully support its deci-

sion to insist on a "reality check" only when the more

extensive and individually-tailored Type B procedures are

used.

In addition, the restrictive interpretation of subsections

107(a)(C) and 301(c)(1) that NAM urges here ignores the

purpose and effect of subsection 301(c)(2), which plainly in-

tends a distinction between the two types of procedures. As

we have repeatedly counseled, such an interpretation, which

essentially deprives one provision of its meaning and effect so

that another provision can be read as broadly as its language

will permit, is inconsistent with the Congress's intent as well

as our Chevron analysis. Cf. Halverson v. Slater, 129 F.3d

180, 185 (D.C. Cir. 1997) (rejecting agency interpretation of

its general delegation provision because interpretation would

render more specific and directly applicable delegation provi-

sion meaningless); Watt v. Alaska, 451 U.S. 259, 267 (1981)

("We must read the statutes to give effect to each if we can

do so while preserving their sense and purpose."). Thus,

NAM's suggested resolution of the potential conflict in pur-

pose posed by subsections 107(a)(C), 301(c)(1) and 301(c)(2),

would once again improperly call for us to give the "resulting

from" language of subsections 107(a)(C) and 301(c)(1) a more

restrictive meaning than the Congress intended. Cf. Ohio II,

880 F.2d at 446 n.14 ("Industry Intervenors advance a related

argument, to the effect that Congress' choice of the word

'damages' in s 107(a)(C) should be read to incorporate the

common-law meaning of the term. In the first place, this

argument loads a great deal of baggage onto an everyday

word which has long since transcended its origins and is now

defined in Webster's Dictionary as 'compensation in money

imposed by law for loss or injury.' ... Moreover, as our

examination of CERCLA's legislative history indicates, ...

Congress' dissatisfaction with the common law provided a

central motivation for enacting CERCLA.") (internal citations

omitted). Accordingly, given the interrelated and cross-

referenced nature of CERCLA subsections 107(a)(C),

107(f)(1), 301(c)(1) and 301(c)(2), we find that DOI's decision

to require a "reality check" for Type B but not for Type A

procedures reads the provisions in an appropriately harmoni-

ous way. Cf. id. at 447 ("Indeed, the fact that subsection

(f)(1) itself explicitly cross-references subsection (a)(C) as the

source of liability indicates Congress' conscious design to read

the two subsections as compatible and complementary: liabili-

ty for 'damages is established in subsection (a)(C), while

subsection (f)(1) orders DOI not to place a restoration-cost

ceiling on the 'measure of damages.' ").

NAM's other arguments, attacking the accuracy and relia-

bility of the submodels' predictions of injury and causation,

are equally unpersuasive. In American Iron & Steel Insti-

tute v. EPA, 115 F.3d 979 (D.C. Cir. 1997), we rejected a

similar challenge, noting that

[p]ossessing imperfect scientific information, [the agency]

had to decide whether to proceed on that basis or invest

the resources to conduct the perfect study. It chose to

do the former. This is the type of decision to which this

court will generally apply the deferential standard of 5

U.S.C. s 706(2)(A).... Our deference, however, is not

without limits. The agency's choice will be reversed as

arbitrary and capricious if there is "simply no rational

relationship" between the model chosen and the situation

to which it is applied.

115 F.3d at 1004; cf. Kennecott, 88 F.3d at 1225 ("Interior has

balanced the need for an early, rough estimate against the

danger of that estimate being too rough. We must defer to

the agency's decision about how to strike that balance unless

it is unreasonable."). Because DOI's Type A submodels are

at least as scientifically rational and sophisticated as those we

upheld in American Iron, we find no merit in NAM's conten-

tions that the submodels permit "unduly speculative assess-

ments" in contravention of the requirement that DOI "identi-

fy the best available procedures" for the calculation of NRD.10

Finally, we note that nothing in the Type A regulations

prevents a PRP that believes the submodels have erroneously

found injury and causation from contesting the submodels'

calculations--either with its own site-specific studies or with

other evidence that calls into question the predictive calcula-

tions of the submodels. The Type A rule also enables a PRP

that suspects that a Type A assessment overstates the actual

loss to insist on Type B procedures. See 43 C.F.R.

s 11.35(b). Indeed, DOI revised its final rule

to require trustees to perform a preliminary application

of the model and make the results available for public

comment before presenting a damage claim. Therefore,

PRPs will have an opportunity to evaluate the injury

projections. They can then decide whether they have

information that indicates that the projections are wrong

and that the user inputs need to be modified or that type

B procedures should be used.

1996 Type A rule, 61 Fed. Reg. at 20,582.

B. Replacement and Acquisition Alternatives

NAM next argues that CERCLA subsections 107(f)(1) and

301(c)(2) require that Type A procedures consider the costs of

"replacement" or "acquisition of equivalent resources." 11 Be-

________

10 The computer submodels, contrary to NAM's assertions, do not

dispense with all "field observation" and thereby render superfluous

the Congress's expectation that Type A procedures will require

"minimal field observation." Rather, for each release a number of

site-specific variables must be collected and analyzed in order to

compute damages. While DOI "interprets 'minimal field observa-

tions' to be information that is readily or routinely collected follow-

ing a release," 1996 Type A rule, 61 Fed. Reg. at 20,582, the fact

that it is "readily or routinely collected" does not make it any less

site- or incident-specific. Moreover, as discussed above, the Type A

submodels contain certain safeguards so that they will not be

applied when environmental or other assumptions do not reflect

actual conditions as of the date of the release. See supra Part I.

11 In relevant part, subsection 107(f)(1) provides:

cause DOI's computer submodels do not expressly consider

these costs in their NRD calculus, NAM contends that we

must vacate the Type A rule. We disagree.

The subsection 107(f)(1) spending limitation--i.e., recover-

ies "shall be retained ... for use only to restore, replace, or

acquire the equivalent" of affected resources--does not mean

that a trustee must consider each of the alternative measures

of damages in calculating NRD. Cf. Kennecott, 88 F.3d at

1230 ("Although ... spending priorities may, in turn, imply a

hierarchy in the way trustees should assess damages in the

first place, we do not find [in either the text of 107(f)(1) or in]

the committee report a sufficiently clear statement of Con-

gressional intent necessary to resolve this issue under Chev-

ron step one."). Indeed, the very next sentence of subsection

107(f)(1) declares that "[t]he measure of damages ... shall

not be limited by the sums which can be used to restore or

replace" injured resources, which "carries in it an implicit

assumption that restoration cost will serve as the basic mea-

sure of damages in many if not most CERCLA cases." Ohio

II, 880 F.2d at 446.

More troublesome for DOI, however, is subsection

301(c)(2), which requires that the Type A and B regulations

"take into consideration factors including, but not limited to,

replacement value, use value, and ability of the ecosystem or

________

Sums recovered by the United States Government as trustee

under this subsection shall be retained by the trustee, without

further appropriation, for use only to restore, replace, or

acquire the equivalent of such natural resources. Sums recov-

ered by a State as trustee under this subsection shall be

available for use only to restore, replace, or acquire the equiva-

lent of such natural resources by the State. The measure of

damages in any action under subparagraph (C) of subsection

(a) of this section shall not be limited by the sums which can be

used to restore or replace such resources.

42 U.S.C. s 9607(f)(1) (emphasis added). The pertinent language of

subsection 301(c)(2) recites that Type A and B regulations "shall

take into consideration factors including, but not limited to, replace-

ment value, use value, and ability of the ecosystem or resource to

recover." 42 U.S.C. s 9651(c)(2) (emphasis added).

resource to recover." 12 42 U.S.C. s 9651(c)(2) (emphasis

added). Absent from the list is "acquisition value," whose

inclusion would strengthen the similarity to the spending

limitation imposed by CERCLA subsection 107(f)(1). None-

theless, we agree with DOI that the list may reasonably be

read to require only that a number of different kinds of

values for particular injury components be considered. In-

deed, in Ohio II, we noted that subsection 301(c)(2) gave DOI

discretion to fashion an appropriate measure of damages in a

particular case although the discretion was circumscribed by

the Congress's evident intent "that the measure of damages

reflect a preference for restoration costs, at least where

restoration is feasible and can be performed at a cost not

grossly disproportionate to the use value of the resource."

880 F.2d at 446; cf. S. Rep. No. 96-848, at 86 ("There is a

need for maximum flexibility in the rulemaking proceeding, so

that free scientific discussion will result. Only through this

type of discussion will the agencies be adequately prepared to

select the most accurate and credible damage assessment

methodologies available."). In light of the legislative intent to

confer discretion as to the choice of an appropriate measure

of damages, we assess DOI's interpretation of subsection

301(c)(2) under step two of Chevron.

DOI has defined certain key terms in its regulations:

Injury means a measurable adverse change, either

long- or short-term, in the chemical or physical quality or

the viability of a natural resource resulting either direct-

ly or indirectly from exposure to a discharge of oil or

release of a hazardous substance, or exposure to a prod-

uct of reactions resulting from the discharge of oil or

release of a hazardous substance. As used in this part,

injury encompasses the phrases "injury," "destruction,"

and "loss." ...

* * *

________

12 NAM does not argue that the Type A rule omits consideration

of "use value," which is apparently provided by the Compensable

Value Submodel. See 1996 Type A rule, 61 Fed. Reg. at 20,566-67.

Replacement or acquisition of the equivalent means

the substitution for an injured resource with a resource

that provides the same or substantially similar ser-

vices....

* * *

Restoration or rehabilitation means actions undertak-

en to return an injured resource to its baseline condition,

as measured in terms of the injured resource's physical,

chemical, or biological properties or the services it previ-

ously provided....

43 C.F.R. ss 11.14(v) (emphasis added), 11.14(ii), 11.14(ll)

(1996).13 Relying on these definitions, DOI contends that its

Restoration Submodel--which considers the costs and bene-

fits of replacing an injured resource (e.g., restocking fish)

against the costs and benefits of restoring the resource

through natural recovery (e.g., allowing spawning and other

________

13 While DOI's regulations equate replacement with acquisi-

tion, the Congress apparently believed that the terms as used in

CERCLA subsection 107(f)(1) had somewhat different meanings:

[T]he primary purpose of the resource damage provisions of

CERCLA is the restoration or replacement of natural re-

sources damaged by unlawful releases of hazardous substances.

However, ... a situation could arise in which the amount of

damages caused by a release of hazardous substances is in

excess of the amount that could realistically or productively be

used to restore or replace those resources....

The Committee therefore intends [that] any excess funds

recovered shall be used, in such an instance, for the third

purpose spelled out in the language of the amendment, which is

'to acquire the equivalent of the damaged resource.' ... The

Committee expects that any such acquisition would provide

resources of an equivalent nature at a location as near as

reasonably possible to the site at which the damages occurred.

H.R. Rep. No. 99-253, pt. 4 at 50 (1985). Because we conclude that

subsection 107(f)(1) does not speak directly to the issue of whether

the Type A procedures must consider replacement and acquisition

values when calculating damages under subsection 301(c)(2), howev-

er, we do not find in this passage an intent to assign replacement

and acquisition independent meanings in subsection 301(c)(2).

natural processes to replace destroyed fish stocks)--satisfies

the subsection 301(c)(2) requirement that the Type A regula-

tions consider "replacement value." 14 See, e.g., The

CERCLA Type A Natural Resource Damages Assessment

Model for Coastal and Marine Environments, Technical Docu-

mentation, Vol. 1, s 5.4.3. DOI therefore reasons that its

decision not to develop independent Replacement and Acqui-

sition Submodels for its Type A calculations does not render

its rule defective but merely less ambitious than it might have

been--which, as we have previously held, is not a ground for

reversal. See Colorado, 880 F.2d at 486 ("Despite the limited

scope of the type A rules, DOI's actions are a sustainable

response to an ambiguous statutory mandate in an area of

scientific uncertainty.").

NAM, on the other hand, contends that DOI's consideration

of replacement values is insufficient to satisfy subsection

301(c)(2) and, in any event, DOI's computer submodels do not

meet the requirements of subsection 107(f)(1) because they

wholly fail to consider acquisition values. Regarding the

latter, because the Congress has omitted any reference to

acquisition values in subsection 301(c)(2), DOI reasonably

accords significance to the omission and interprets it not to

require consideration of off-site, acquisition alternatives to

restoration. Nor can our decision in Colorado be read to

command a different result. There, we held that DOI's

failure to include "replacement or restoration values in its

type A procedures" contravened "the clear mandate of Con-

gress as interpreted in Ohio." 880 F.2d at 491 (emphasis

added). We did not then, and we do not now, conclude that

subsections 301(c)(2) and 107(f)(1) require the regulations to

consider acquisition values.

________

14 Replacement or acquisition may be the only feasible remedies if

the natural resources have been destroyed or irreparably injured.

See 1996 Type A rule, 61 Fed. Reg. at 20,601 ("[T]he model

calculates a loss and allows only one-to-one replacement, with

correction for restocking survival, of missing individuals.... The

[habitat restoration] models assume that all fish and shellfish killed

are restocked, if stocks are available.") (emphasis added; quoted

sentences from responses to two different comments).

Finally, although DOI's final rule does an imperfect job of

explaining how its Type A procedures incorporate consider-

ation of replacement values--which it seems to refer to as

"active habitat restoration" costs, see 1996 Type A rule, 61

Fed. Reg. at 20,601-02--any explanatory deficiencies can be

remedied by DOI at the next biennial review. Accordingly,

we conclude that DOI's Type A rule satisfies the requirement

of subsection 301(c)(2) that it "take into consideration ...

replacement value." Consistent with our earlier holding, its

interpretation ensures "that the measure of damages reflect a

preference for restoration cost, at least where restoration is

feasible and can be performed at a cost not grossly dispropor-

tionate to the use value of the resource." Ohio II, 880 F.2d

at 446.

C. Relation of Restoration Actions

to Resource "Services"

NAM next asserts that DOI's Type A submodels are

arbitrary and capricious--i.e., violate 5 U.S.C. s 706(2)(A)--

because they do not evaluate restoration alternatives in terms

of the effect such action may (or may not) have on natural

resource "services." See supra note 4. As DOI properly

notes, however, NAM failed to raise this argument in the

rulemaking proceedings below, and we find no reason to

excuse NAM's failure to exhaust its administrative remedies.

NAM contends that because the relationship between ser-

vices and restoration was "a general point applicable to any

NRD assessment," because it "had been emphasized re-

peatedly in prior rulemakings," because comments in the

rulemaking regarding the Compensable Value Submodel indi-

cated that the relationship between resource services and

NRD was essential in developing "nonconsumptive wildlife

values" and because "other documents in the record high-

lighted the services concept," DOI was given a "fair opportu-

nity" to consider the issue below. Failing that, NAM argues

that we should exercise our discretion and excuse NAM's

failure to exhaust. NAM Reply Br. at 10-11.

The fact that, buried in hundreds of pages of technical

comments NAM submitted, some mention is made of the

resource services concept and its relation to compensable

values (rather than restoration alternatives) is insufficient to

preserve the issue for review on appeal. "Our cases ...

require complainants, before coming to court, to give the

[agency] a fair opportunity to pass on a legal or factual

argument." Washington Ass'n for Television & Children v.

FCC, 712 F.2d 677, 681 (D.C. Cir. 1983) (emphasis added;

quotation marks omitted); accord Omnipoint Corp. v. FCC,

78 F.3d 620, 635 (D.C. Cir. 1996) ("As a general rule, claims

not presented to the agency may not be made for the first

time to a reviewing court."); United States v. L.A. Tucker

Truck Lines, 344 U.S. 33, 37 (1952) ("Simple fairness ...

requires as a general rule that courts should not topple over

administrative decisions unless the administrative body not

only has erred but has erred against objection made at the

time appropriate under its practice."). Thus, we decline to

find that scattered references to the services concept in a

voluminous record addressing myriad complex technical and

policy matters suffices to provide an agency like DOI with a

"fair opportunity" to pass on the issue.

Nor do we find any ground to excuse NAM's failure to urge

its objection below. The fact that the Kennecott decision was

not known on the date the comment period closed is unavail-

ing. Kennecott did not suggest a new basis for challenging

DOI's Type A rule; it simply reaffirmed that an agency's

regulations must be internally consistent to guard against

double recovery. 88 F.3d at 1220 ("In invalidating the regu-

lations, we do not mean to suggest that CERCLA requires or

forbids any particular measure of damages. The problem

here is not with the standard adopted, but with the consisten-

cy between the language of the regulations and the pream-

ble's explanation of what Interior did.") (emphasis added).15

________

15 American Maritime Association v. United States, 766 F.2d

545, 566 n.30 (D.C. Cir. 1985), is inapposite. There the agency

made a significant change between its proposed rule and the final

interim rule and thus the complainant did not have the opportunity

D. Lost Assimilative Capacity

Continuing its attack on the content and function of DOI's

Restoration Submodel, NAM next argues that DOI's inclusion

of calculations for lost "assimilative capacity"--i.e., the pre-

release ability of an environment "to repair itself by digest-

ing, degrading, transforming, absorbing, or otherwise elimi-

nating the pollutants placed in it," 1996 Type A rule, 61 Fed.

Reg. at 20,599--contravenes CERCLA. It contends that

such losses are "unduly speculative" because there may never

be another release of the same or similar hazardous sub-

stances in the affected environment and, even if they are not

overly speculative, DOI's calculation methodology is funda-

mentally flawed. Both contentions are without merit.

Subsection 301(c)(2) requires the Type A and Type B

regulations to "take into consideration ... [the] ability of the

ecosystem or resource to recover." 42 U.S.C. s 9651(c)(2).

Consideration of lost assimilative capacity meets the com-

mand by assessing the cumulative effects a release may have

on a resource's ability to recover and by preventing erosion of

baseline conditions. Thus, DOI's interpretation of subsection

301(c)(2) to permit assessment of lost assimilative capacity

damages is plainly not unreasonable and instead is consistent

with (if not required by) the Congress's intent to recover for

the full damages resulting from a release. See Ohio II, 880

F.2d at 464 (CERCLA intends recovery for all properly

calculated losses and all kinds of losses reasonably ascribed to

release); Colorado, 880 F.2d at 490-91 (similar); cf. S. Rep.

No. 96-848, at 14 (one reason CERCLA was enacted was

shortcomings of common law and statutory remedies in recov-

ering full compensation). Moreover, contrary to NAM's con-

tentions, the stand-by nature of the resource service does not

make it speculative: "The assimilation of pollutants is a real

service provided by natural resources and is well-founded in

scientific literature." 1996 Type A rule, 61 Fed. Reg. at

20,599. Indeed, the fact that such assimilative capacity ser-

________

to object to the change before seeking judicial review. Here

nothing in the services-restoration relationship was substantively

vice may be called on only in the contingency of a future

release does not render the losses any more speculative than

other kinds of contingent losses for which damages may be

assessed. Cf. Ohio II, 880 F.2d at 474-81 & nn.72-77 (up-

holding use of contingent valuation methodologies, including

assessments of option and existence values, assuming re-

sources may never be visited or used but recognizing stand-

by value to their existence); General Elec. Co. v. United

States Dep't of Commerce, 128 F.3d 767, 772-74 (D.C. Cir.

1997) (upholding NOAA's use of contingent valuation methods

in which individuals assign value to resources "even if they

never plan to make active use of them").16

Nor do we find error in DOI's decision to calculate the

monetary loss resulting from a diminution in assimilative

capacity by extrapolating from the costs of dredging contami-

nated sediment in a nearby area. The standardized and

simplified nature of Type A procedures necessarily dictates

that they rely on data extrapolations to assign values to

particular items of loss. Thus, while we agree with NAM

that (for example) using dredging cost figures from Green

Bay to calculate restoration costs in Chicago may not be the

most accurate method of calculating costs, it is neither unrea-

sonable nor arbitrary and capricious in the context of Type A

assessments. Moreover, the alternative that NAM apparent-

ly urges--barring recovery for such loss absent specific data

on restoration costs for each potential release site--is incon-

________

altered between the notice of proposed rulemaking and the final

rule.

16 In addition, the amended Type A rule does not permit recovery

of lost assimilative capacity in every circumstance. Loss is calculat-

ed "only when there are releases that generate economic damages

related to mortality or loss of production." See 1996 Type A rule,

61 Fed. Reg. at 20,599. While an initial programming error permit-

ted the calculation of such loss in cases where the submodels

predicted no damages related to mortality or loss of production,

DOI has since corrected the error. See Revisions to 1996 Type A

rule, 62 Fed. Reg. at 60,457-58. Thus, NAM's suggestion that

including lost assimilative capacity in the submodels ensures per se

damages in the event of a release is mistaken; only if mortality and

production thresholds are exceeded will assimilative capacity loss be

included in the damages claim.

sistent with the remedial objectives of CERCLA and requires

that Type A procedures provide greater precision in their loss

measurements than CERCLA can reasonably be deemed to

require.17

E. Economic Rent for Commercial

Fishing and Hunting Losses

NAM next assails DOI's inclusion of "economic rent" losses

in its Compensable Value Submodel.18 Its main argument is

________

17 Nor does this conclusion make a PRP an insurer for future

releases as NAM contends. Each subsequent PRP will be respon-

sible for restoring assimilative capacity losses caused by a release

for which it is liable under 42 U.S.C. s 9607(a). Were we to adopt

NAM's interpretation, future PRPs would be responsible for losses

to natural resources that were greater (because of decreased assi-

milative capacity caused by predecessor PRP) than they might

otherwise have been. We can find nothing, nor has NAM referred

us to anything, in CERCLA that requires DOI to favor the current

PRP over a future PRP. Again, the fact that traditional tort

remedies might suggest a different allocation of risks is not disposi-

tive: "We have already noted our disagreement with the proposition

that the strictures of the common law apply to CERCLA." Ohio

II, 880 F.2d at 476.

18 "Economic rent" in this context does not refer to profits earned

in non-competitive markets. Rather, DOI defines "economic rent"

as "the excess of total earnings of a producer of a good or service

over the payment required to induce the producer to supply the

same quantity currently being supplied." Natural Resource Dam-

age Assessments, 51 Fed. Reg. 27,674, 27,691 (1986); 1996 Type A

rule, 61 Fed. Reg. at 20,603 ("In other words, economic rent for

commercially harvested resources is the fee that commercial har-

vesters could pay to the government and still find the harvesting

economically feasible.").

Because DOI assumes that the small releases for which Type A

procedures may be used will generally not cause commercial hunt-

ers and fishers to abandon or downsize their enterprises, any

harvesting losses produced by a release will in fact represent

"economic rent." See 1996 Type A rule, 61 Fed. Reg. at 20,604.

NAM does not challenge the reasonableness of the assumption and

that commercial fishing and hunting losses are injuries of a

"private" nature for which CERCLA does not permit recov-

ery. According to NAM, recovery for such losses, under the

guise of seeking compensation for losses of imputed rent that

a trustee might collect for the privilege to fish and hunt, is

ultra vires. Further, NAM contends that "DOI's calculation

of the amount of damages resulting from lost economic rent is

based on wholly speculative assumptions." NAM Br. 37.

DOI's responses are twofold: (1) NAM's challenge is time-

barred because economic rent losses have been a feature of

DOI's Type B rules since 1986 and were a feature of DOI's

1987 Type A rule; and (2) NAM's arguments are based on

the mistaken premise that all commercial hunting and fishing

losses represent "private" losses.

DOI's timeliness defense fails here for the same reasons

that it failed with respect to NAM's challenge to the absence

of a "reality check" in the Type A procedures: the change in

"regulatory context" and stakes caused by the addition of

Type A procedures for Great Lakes environments and by the

substantial alterations in the procedures for coastal and ma-

rine environments constructively reopened this aspect of the

procedures to challenge.

Regarding the merits, NAM's challenge is apparently pred-

icated on the assumption that because commercial fishing and

hunting enterprises have heretofore not been charged fees for

the full value of their entitlement to fish and hunt in public

aquatic environments covered by the Type A procedures, the

entitlement is a private rather than a public one. We do not

agree.

It is true that CERCLA does not permit private parties to

seek recovery for damages to natural resources held in trust

by the federal, state or tribal governments nor does it allow

public trustees to recover for damages to private property or

other "purely private" interests. See Ohio II, 880 F.2d at 460

("The legislative history of CERCLA further illustrates that

damage to private property--absent any government involve-

________

we see nothing in the record to suggest that DOI's conclusion

resulting from its assumption is unreasonable either.

ment, management or control--is not covered by the natural

resource damage provisions of the statute."); Exxon Corp. v.

Hunt, 475 U.S. 355, 375 (1986) (compensation to "third parties

for damage resulting from hazardous substance discharges

... [is] clearly beyond the scope of CERCLA"). Determin-

ing whether a particular loss is "private" or "public" is the

task with which we are faced here.19

CERCLA defines natural resources to encompass

land, fish, wildlife, biota, air, water, ground water, drink-

ing water supplies, and other such resources belonging

to, managed by, held in trust by, appertaining to, or

otherwise controlled by the United States (including the

resources of the fishery conservation zone established by

the Magnuson-Stevens Fishery Conservation and Man-

agement Act [16 U.S.C.A. ss 1801 et seq.]) any State or

local government, any foreign government, any Indian

tribe, or, if such resources are subject to a trust restric-

tion on alienation, any member of an Indian tribe.

42 U.S.C. s 9601(16) (emphasis added). As noted earlier,

resources must be under the stewardship of a trustee before

damages can be assessed for their injury, loss or destruction.

See supra note 1. A release of hazardous substances in the

Great Lakes or covered coastal and marine environments that

kills fish or game or makes it inedible or unusable for

commercial or other purposes injures natural resources. Cf.

Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 773

(9th Cir. 1994) ("A state has a sovereign interest in natural

resources within its boundaries.").

Because public trustees do not currently charge commer-

cial harvesters access fees above those required to cover ad-

________

19 NAM's reliance on Satsky v. Paramount Communications,

Inc., 7 F.3d 1464 (10th Cir. 1993), is misplaced. The Tenth Circuit

held that suits for injuries to "purely private interests" could not be

barred by a state's recovery of public losses. Id. at 1470. It also

held, however, that to the extent the "claims are for injuries to

interests which all citizens hold in common, and for which the State

has already recovered, the [former] judgement ... acts as a bar."

Id.

ministrative and registration costs, NAM reasons that the

harvesters have converted these public resources into private

property so that any adverse effect a release may have on

harvesting activities represents a "purely private" loss for

which the trustee cannot recover. The fact that commercial

hunting and fishing operations are not presently paying

something (or at least more) for the privilege to exploit public

fish and game stocks does not mean that they have converted

the stocks into private property. Rather, the public custodi-

ans of the resources have determined that the public interest

is served by refraining from charging the commercial enter-

prises for harvesting the public fish and game stocks. Thus

we do not find DOI's conclusion--that if the public cannot use

its resources to foster commercial enterprises, the value of

the resources to the public (as well as to the enterprises) has

been diminished--unreasonable. See 1996 Type A rule, 61

Fed. Reg. at 20,604 ("The governmental regulation of fish and

wildlife harvest implies a public concern that these resources

be managed in order to sustain their contribution to economic

productivity.").

Nor does recovery of imputed rent losses run afoul of the

subsection 107(f)(1) prohibition on double recovery. As the

regulations explain, "[f]or minor releases where damages may

be relatively low and data establishing injury and causation

may be difficult to obtain, ... it is unlikely that commercial

harvesters will go to the expense and trouble to pursue a

legal claim." Id. at 20,604. In addition, "in some cases

commercial harvesters will not have a private cause of action

or their recoveries may be subject to geographic or temporal

limitations." Id. Given the nature of the release for which

damages are assessed, the likelihood of double recovery is

minimal. If a commercial harvester does sue and succeeds in

recovering the public's imputed rent as part of its lost profits,

however, the regulations bar the trustee from including such

losses in its calculation of NRD. Id.; 43 C.F.R. s 11.44(d)

(1996). Moreover, once a state or other public trustee recov-

ers such damages, a private party will be barred by res

judicata from later seeking recovery for the same public

losses. See Alaska Sport Fishing, 34 F.3d at 774 ("[T]he

United States and the state of Alaska, acting as government

trustees, have already recovered for the very same damages

plaintiffs now seek here.... Thus, under the doctrine of res

judicata, plaintiffs are barred from asserting such claims in a

second suit."). Accordingly, DOI's inclusion of economic rent

losses in its Type A submodels cannot reasonably be deemed

to pose a likely risk of double recovery.

Finally, DOI's ancillary attack on the reasonableness of the

assumptions underlying the submodel's calculation of econom-

ic rents also fails. Once again, we can find nothing unreason-

able or irrational in the means by which DOI's Compensable

Value Submodel calculates lost economic rents resulting from

a release. The fact that such imputed rents have not been

collected previously does not ipso facto make their valuation

unduly speculative as the assumption that minor spills will

likely not affect commercial fishing and hunting appears

reasonable. In view of an unchanged activity level, DOI's

derivative conclusion that the harvesting losses represent an

appropriate proxy for lost economic rent cannot be viewed as

irrational. Again, in technical matters it is not our role to

second guess the agency's expert judgments if they are

reasonable and adequately explained. See Troy Corp., 120

F.3d at 283; American Iron & Steel, 115 F.3d at 1004-05.

F. "Best Available Procedures" for Calculating NRD

NAM next seizes on the "best available procedures" lan-

guage of subsection 301(c)(2)--i.e., the Type A and B regula-

tions "shall identify the best available procedures to deter-

mine such [natural resource] damages, including both direct

and indirect injury, destruction, or loss"--and contends that

because DOI used certain inapplicable, outdated or methodo-

logically suspect studies in developing its Type A submodels,

it violated CERCLA's direction to use the "most accurate and

credible damage assessment methodologies available." S.

Rep. No. 96-848, at 86. NAM also suggests that because a

Type A assessment enjoys a rebuttable presumption of cor-

rectness under subsection 107(f)(1), DOI is under a height-

ened obligation to demonstrate the validity and rationality of

its modeling assumptions and their empirical support.20

Technical attacks on the Type A submodels are assessed

under the deferential standard that applies when an agency's

scientific and technical judgment is at issue. See generally

Troy Corp., 120 F.3d at 283; American Iron, 115 F.3d at

1004-05. The "best available procedures" language is neither

defined by statute nor self-defining and so we apply Chevron

step two in assessing whether DOI's decision to include

certain studies complies with subsection 301(c)(2)'s require-

ment that it "identify the best available procedures." See

generally Ohio II, 880 F.2d at 476-78 (concluding DOI's

adoption of contingent valuation methodologies was "best

available procedure" because "the risk of overestimation has

not been shown to produce such egregious results as to

justify judicial overruling of DOI's careful estimate of the

caliber and worth of CV methodology").

NAM's arguments regarding the additional burden an

agency bears when using calculations whose results enjoy a

rebuttable presumption of correctness is beside the point

because the presumption has been established by the Con-

gress, not the agency. See General Electric, 128 F.3d at 771-

72 ("Chemical Manufacturers [applicable test], however, ap-

plies only to rebuttable presumptions created by agencies and

has no applicability where, as here, Congress created the

presumption.").

NAM's argument is also fatally flawed because it reads

"available" out of the subsection 301(c)(2) requirement to

"identify the best available procedures to determine" dam-

ages, a disfavored interpretation under both Chevron steps.

See American Fed'n of Gov't Employees v. FLRA, 798 F.2d

1525, 1528 (D.C. Cir. 1986); cf. Reiter v. Sonotone Corp., 442

U.S. 330, 339 (1979). Thus, while the studies upon which DOI

________

20 NAM also claims that the inclusion of "lost assimilative capaci-

ty" and "economic rent" variables in the Type A submodels violates

the "best available procedures" mandate. As discussed above,

however, we find nothing unreasonable or otherwise insufficient in

DOI's use of these variables.

relies may not use the "best" methodologies and techniques,

they appear to be the "best available," which is all that

CERCLA requires.21

DOI used a number of screening criteria that studies had

to meet before they became part of its submodels' databases.

See 1996 Type A rule, 61 Fed. Reg. at 20,571 ("The Depart-

ment used only studies that: (1) Were based on an extensive

literature review and consultations with relevant governmen-

tal agencies; (2) reasonably represented the natural resource

and public use under investigation; (3) contributed to a

reasonable representation of the different regions included in

the model; (4) were conducted by a recognized university-

associated researcher or established consulting firm; and (5)

used appropriate valuation methodologies."). These criteria

assisted DOI in determining which studies were sufficiently

reliable to use in its computer submodels. Thus, DOI's

decision to use studies assigning values to recreational salmon

and trout fishing in several western states in order to develop

comparable values for such activities in the Great Lakes

region was not unreasonable in view of the fact that there

were no other studies available that satisfied the screening

criteria and focused on the Great Lakes. Similarly, the fact

that DOI used nine freshwater fishing studies, in addition to

twenty-one salt water fishing studies, to produce averaged

values for recreational fishing in coastal and marine environ-

ments can hardly be viewed as irrational or unreasonable.

Again, DOI reasonably determined that the "best available"

values could more accurately be developed by averaging a

________

21 Had DOI chosen not to assign any values to damages because

of the age, methodologies, etc. of certain studies, it would have less

fully effected a fundamental purpose of CERCLA--i.e., to ensure

the full recovery of the costs associated with a release of hazardous

substances. Cf. Ohio II, 880 F.2d at 478 (concluding that in light of

"CERCLA's preference for restoration" it would not make sense to

insist on more stringent pre-release contingent valuation surveys to

satisfy "best available procedures" requirement of subsection

301(c)(2)); Colorado, 880 F.2d at 490-91; S. Rep. No. 96-848, at 14

(observing one reason CERCLA was enacted is that "the compensa-

tion ultimately provided ... is generally inadequate").

broader range of values than the saltwater studies alone

would have allowed.

Further, DOI's decision to arrive at average recreational

values for the Great Lakes beaches by including four studies

of recreational values for beaches in Hawaii and Florida, in

addition to seven other studies of non-Great Lakes beach

values, appears reasonable, especially given the absence of

any suitable studies of Great Lakes beaches themselves.

Once again, averaging values from such geographically di-

verse studies appears to have been a rational way in which to

arrive at the "best available" values.22

We also find no error in DOI's decision to use older studies

that rely on contingent valuation or travel cost methodologies.

Again, DOI was confronted with a choice: utilization of older,

less methodologically reliable studies to assign values for

particular losses, guesswork to produce the appropriate val-

ues or their exclusion from its computer submodels. DOI's

expert judgment that it was best to proceed in reliance on

available studies is plainly a permissible interpretation of the

subsection 301(c)(1) charge to "identify the best available

procedures to determine" NRD.

We also find reasonable DOI's decision to include wildlife

viewing losses in its submodels. Because no studies existed

that quantified or qualified the correlation between wildlife

population losses and wildlife viewing losses, DOI reasonably

assumed a one-to-one, linear correlation. In the absence of

any studies to suggest that such linear assumptions overstate

(or understate) loss, we can find no error in DOI's determina-

tion that population losses would typically result in a corre-

sponding loss in viewing opportunities.

Finally, we decline to second-guess DOI's technical judg-

ments as to toxicity values for certain types of releases. See

________

22 Also, as noted in DOI's Brief, had the Florida and Hawaii

studies been excluded, the average values in the Type A submodels

would have been affected by a mere $.03 per day; hardly a basis to

conclude that inclusion of the studies skewed the values in DOI's

submodels. DOI Br. at 43.

Troy Corp., 120 F.3d at 283; American Iron, 115 F.3d at

1004-05. The fact that DOI's and NAM's experts disagree on

the proper toxicity values for certain substances and concen-

trations does not render DOI's judgment defective.23 Cf.

Ohio II, 880 F.2d at 465 (rejecting challenge to use of

discount rate in calculating net present value of loss because

"petitioners have given us no reason to substitute our judg-

ment for that of Interior and of the Office of Management

and Budget, whose circular provided the ten percent figure

chosen"). Accordingly, once again we conclude that DOI's

reconciliation of the "best available procedures" language and

"full recovery" goals of CERCLA is reasonable and therefore

sustainable. See Ohio II, 880 F.2d at 441, 464.

G. Application of Type A and Type B

Procedures to Same Release

NAM next challenges DOI's Type A rule because it permits

trustees to use both Type A and Type B procedures to

calculate NRD for the same release, which (1) violates the

clearly expressed intent of the Congress that the two types of

procedures be "alternative" rather than complementary pro-

cedures, (2) conflicts with the use of average valuations in the

Type A computer submodels and (3) contravenes the regula-

tory requirement that Type B procedures not be employed to

calculate compensable values until they have been validated

for a specific incident by a "reality check." DOI responds

that NAM's second argument is not ripe for resolution and

that all of NAM's arguments are otherwise lacking in merit.

We agree that NAM's arguments are without merit.24

________

23 NAM also criticizes DOI for including toxicity values for cop-

per, zinc and mercury despite DOI's intent to remove such toxicity

values for pure metals from its submodels' databases. See 1996

Type A rule, 61 Fed. Reg. at 20,591. DOI has since acknowledged

the error and removed the values from its submodels. See Revi-

sions to 1996 Type A rule, 62 Fed. Reg. at 60,458.

24 DOI also appears to suggest that at least a portion of NAM's

challenge is untimely because the 1987 Type A rule allowed com-

bined use of Type A and B procedures in certain circumstances.

(1) Legislative intent and combined application

of Type A and Type B procedures

Subsection 301(c)(2) of CERCLA, as discussed and quoted

above (see supra page 5), distinguishes, both textually and

structurally, between Type A "standard procedures" and

Type B "alternative protocols for conducting assessments in

individual cases." 42 U.S.C. s 9651(c)(2). The distinctions

were intended:

This subsection calls for the promulgation of two types

of regulations. First, a simplified type of regulation

[Type A] is necessary to effectively deal with damage

assessment in most 'minor' releases of hazardous materi-

als....

The other type of regulations [Type B] would be

employed in large or unusually damaging releases and

would be used to guide the site-specific damage assess-

ment. Such a regulation would contain protocols for

field assessment of the type and extent of short- and

long-term damage and methodologies for determining

their value.

The protocols for field assessments should provide

uniform instructions that will allow for thorough site

investigation in a cost-effective manner. Sampling and

statistical procedures should be clearly defined. The

methods for determining the geographical extent of dam-

age should also be enumerated. It is the intent of the

legislation that these protocols be designed to accommo-

________

See DOI Br. 48 n.17. We reject the argument for the same reason

we rejected it with respect to the challenges discussed supra in

Parts II.A and II.E. Further, we note that the circumstances in

which a combined Type A and Type B assessment may be used

have been significantly expanded by the 1996 rule compared to the

1987 rule. Compare 1996 Type A rule, 61 Fed. Reg. at 20,610 with

1987 Type A rule, 52 Fed. Reg. at 9048-49. Moreover, DOI

appeared to reopen the issue: "The Department explicitly limited

this rulemaking to four issues: ... the conditions for combined use

of type A and type B procedures;...." 1996 Type A rule, 61 Fed.

Reg. at 20,570.

date the majority of potential release sites, including

coastal estuaries, open water, freshwater rivers, lakes

and wetlands.

S. Rep. No. 96-848, at 86; accord Colorado, 880 F.2d at 487

("[A]lthough Congress did not have a specific intent regard-

ing the proper scope of type A rules, it envisioned generally

that type A rules would cover most minor releases and type B

rules would cover large or unusually damaging releases.").

Nevertheless, subsection 107(f)(2)(C) does not differentiate

between the two types of procedures with respect to the

rebuttable presumption: "Any determination or assessment

of damages to natural resources ... made by a Federal or

State trustee in accordance with the regulations promulgated

under section 9651(c) of this title shall have the force and

effect of a rebuttable presumption." 42 U.S.C.

s 9607(f)(2)(C) (emphasis added). Significantly, the Congress

indicated that the rulemaking required by subsection

301(c)(2) should emphasize flexibility and development of a

variety of measurement tools for a trustee's use:

Investigations by the Committee on Environmental

and Public Works revealed the need for an improved, fair

and expeditious mechanism for dealing with natural re-

source damages caused by releases of hazardous materi-

als. The principal hindrance to attaining such a mecha-

nism was the absence of a standardized system for

assessing such damages which is efficient as to both time

and cost.

The reported bill provides ... that ... agencies should

standardize a process through regulation for assessing

damages to those resources. This could be done after a

thorough review of alternatives for damage assessment.

This approach will focus on scientific debate concerning

damage assessment in the rulemaking process and result

in a decision regarding the best simplified procedures for

making accurate and defensible assessments of resource

damages.

* * *

The rulemaking should produce a range of products.

At one end will be simplified assessment procedures

requiring a minimum of fieldwork and using a combina-

tion of habitat values, species values, and other simplified

methods. Such procedures would be of value in dealing

with minor releases. At the other end of the range

would be damage assessment protocols to be used when-

ever the extent of natural resource damage is substantial

and extensive fieldwork becomes necessary. The assess-

ment procedures and protocols should include a choice of

acceptable damage assessment methodologies to be em-

ployed with the evidentiary status of a rebuttable pre-

sumption accorded to the results when the protocols are

followed.

There is a need for maximum flexibility in the rule-

making proceeding, so that free scientific discussion will

result. Only through this type of discussion will the

agencies be adequately prepared to select the most accu-

rate and credible damage assessment methodologies

available.

S. Rep. No. 96-848, at 85-86 (emphasis added).

By using Type A procedures and selectively supplementing

them with certain low-cost and expeditious Type B proce-

dures, DOI is able to arrive at a more complete assessment of

damages at less cost and in less time than a full-blown Type

B assessment would likely require. Cf. 1996 Type A rule, 61

Fed. Reg. at 20,577 ("[T]rustees should not be forced to

choose between foregoing compensation for a public loss not

addressed by the type A submodel on the one hand and

funding a full-scale, time-consuming, labor-intensive type B

assessment of all injuries on the other hand.").

Nor does the combined use of Type A and Type B proce-

dures pose a risk of double recovery. The regulations limit

the use of supplemental Type B procedures to the determina-

tion of "damages for injuries or compensable values that do

not fall into the categories addressed by the type A proce-

dure." 43 C.F.R. s 11.36(a) (1996). In addition, a trustee

who elects to use both types of procedures must document in

the Assessment Plan how double recovery is to be avoided.

Id. s 11.36(c). Thus, if, for example, the Type A procedures

have already produced a value for mortality losses, Type B

procedures may not also be used to calculate that item of loss.

We therefore find nothing unreasonable in DOI's interpreta-

tion of CERCLA subsection 301(c)(2) as permitting combined

use of Type A and Type B procedures.25

(2) Average values and Type B procedures

NAM's challenge to the combination of Type B procedures

and the average valuations produced by Type A procedures to

arrive at a single NRD figure is, contrary to DOI's view, ripe

for review. To determine ripeness we "evaluate both the

fitness of the issues for judicial decision and the hardship to

the parties of withholding court consideration." Abbott Labs.

v. Gardner, 387 U.S. 136, 149 (1967). In applying the two-

part test, we note that the "basic rationale" of the ripeness

test is "to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract dis-

agreements over administrative policies, and also to protect

the agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a concrete

way by the challenging parties." Id. at 148-49.

NAM's claim appears to be fit for resolution now. NAM

has styled its challenge as one to the lawfulness of DOI's

decision under CERCLA to allow trustees to calculate NRD

with combined Type A and Type B procedures and DOI's

decision to permit the combination is indisputably final. Cf.

________

25 Nor do we find problematic the fact that the rule authorizes

Type B assessments for types of losses not captured by Type A

procedures. See 1996 Type A rule, 61 Fed. Reg. at 20,578 ("Finally,

the Department believes it is appropriate to revise the existing rule

to allow supplemental use of type B procedures beyond resources

not addressed in the type A submodels. The public can experience

significant and distinct losses associated with the same re-

source.... The Department sees no reason to impose an arbitrary

distinction between losses associated with different resources and

losses associated with the same resource so long as there is no

double recovery.").

Abbot Labs., 387 U.S. at 149-50. Moreover, the effect of

DOI's interpretation is sufficiently concrete and immediate to

satisfy the second prong of the Abbott Labs. test. A trustee

that complies with the criteria set forth in the regulation may

now combine Type A and Type B procedures to assess

natural resource damages resulting from a release and a PRP

may well be required to decide whether it should force a Type

B assessment or allow a supplemented Type A assessment to

proceed. Cf. id. at 152-53 (finding that because FDA com-

missioner's rule, effective upon publication, required affected

parties to take immediate action or face possible sanctions for

non-compliance, rule's effect was "sufficiently direct and im-

mediate as to render the issue appropriate for judicial review

at this stage"). Thus, unlike the unripe challenge we rejected

in Kennecott, 88 F.3d at 1223 ("The guidance offered [in rule's

preamble] is hypothetical and non-specific; it is not crafted as

a concrete rule that can be applied under identified circum-

stances."), here the rules are concrete, specific and immedi-

ately effective.

Nonetheless, once again, NAM's claim fails on the merits.

While the Type A submodels predict losses based on certain

averaged values, that does not mean that supplementing the

determinations with Type B calculations for values that are

not included in the Type A submodels will result in overesti-

mation or underestimation of damages. Because each of the

procedures is addressed to a different type or component of

loss, averaged and non-averaged values are not being com-

bined to arrive at a joint loss figure for a particular type or

component of damages. Thus NAM's assertion that combin-

ing items of loss arrived at through averaged values with

items developed with non-averaged values produces bogus

total loss figures is erroneous. Indeed, without the use of

supplemental Type B procedures, a trustee could recover less

than the full measure of damages sustained because certain

values are not covered in the Type A submodels. Therefore,

the addition of supplemental Type B procedures should not

alter the degree to which the total loss figures produced could

underestimate or overestimate loss. Moreover, we can find

nothing in CERCLA that requires the calculation of aggre-

gate NRD either with or without averaged values but not

with a mixture of the two.

(3) Use of Type B procedures to assess compensable

value losses without "reality check"

NAM's final argument that DOI erred in permitting the

use of certain Type B procedures without requiring site-

specific validation also fails. While the regulations do require

that injury determination and quantification be performed

anew when supplemental Type B procedures are employed to

calculate items of loss other than compensable value, they do

not require the same when the procedures are used to

calculate compensable value losses not included in the Type A

submodels. Again, this distinction reflects DOI's expert

judgment that the Type A causation and loss predictions are

adequate for the purposes of injury determination and quanti-

fication in the compensable value context but not in the

restoration submodels. And again, we decline NAM's invita-

tion to review expert judgments the Congress has committed

to a coordinate branch of government. See Troy Corp., 120

F.3d at 283; American Iron, 115 F.3d at 1004-05.

H. Inclusion of Non-Binding Oil Discharge

Subroutines in Final Rule

Finally, NAM contends that DOI erred by retaining model-

ing subroutines for oil and petroleum discharges, which are

now under the jurisdiction of NOAA and governed by regula-

tions implementing OPA.26 Because we find that NAM lacks

standing to bring the claim, we do not reach the merits.

________

26 With respect to oil discharges, DOI's regulations provide:

The Department began developing the type A procedures

before the enactment of OPA and, thus, originally included

both hazardous substances and oil in the [Type A] algorithms

and databases. The Department has worked closely with

NOAA during the development of the type A procedures.

During its rulemaking, NOAA indicated it would allow use of

"[T]he standing doctrine requires would-be litigants to

demonstrate an (1) injury in fact; (2) which is caused by, or is

fairly traceable to, the alleged unlawful conduct; and (3)

which is likely to be redressed by a favorable decision of the

court." Animal Legal Defense Fund v. Glickman, 130 F.3d

464, ---, 1997 WL 753903, at *2 (D.C. Cir. Dec. 9, 1997).

Moreover, "[t]he party invoking federal jurisdiction bears the

burden of establishing these elements, ... and may not

pursue its claims before the federal judiciary if it fails to

demonstrate any one of them." Id.

NAM's claim here is that DOI could not support NOAA's

rulemaking under OPA by retaining subroutines and data it

had developed while it retained jurisdiction over oil and

petroleum discharges because DOI had no authority to pub-

lish such material in the Federal Register. Rather, according

to NAM, NOAA had to recreate the submodels itself and

subject its version of DOI's submodels to additional notice

and comment. See Appellant Br. 48. NAM has two standing

problems with the argument. First, NAM has wholly failed

to identify how it or its members have suffered injury in fact

that is concrete and imminent. See Bennett v. Spear, 117

________

the Department's type A procedures under the OPA regula-

tions....

NOAA's final rule states that trustees may use "[m]odel-

based procedures, including type A procedures identified in 43

C.F.R. part 11, subpart D," provided that any such procedure

meets [certain specific conditions]....

Therefore, the Department has retained components relating

to oil in the final versions of the [Type A procedures], while

recognizing that these components are without any direct

regulatory effect. The Department is also providing responses

to comments it received on the oil-related components of the

type A models. However, the Department wishes to emphasize

that its regulations do not govern the assessment of natural

resource damages for oil discharges under OPA. Trustees who

wish to use the type A procedures and obtain a rebuttable

presumption for assessments of oil discharges must follow the

process established by NOAA's regulations.

1996 Type A rule, 61 Fed. Reg. at 20,561.

S. Ct. 1154, 1161 (1997). The regulations plainly acknowledge

that the retained (and revised) subroutines are without bind-

ing effect because regulation of oil and petroleum discharges

is now the exclusive province of NOAA. See 1996 Type A

rule, 61 Fed. Reg. at 20,561. Thus, NAM cannot have been

injured by DOI's decision to publish the non-binding materi-

als. Second and more fundamentally, NAM has failed to

show that any injury it may have suffered is "fairly traceable"

to DOI's decision to retain, in non-binding form, the oil

discharge databases and subroutines. To the extent NAM

has a problem with NOAA's incorporation of the procedures

into its OPA regulation without developing assessment sub-

models and databases anew and without subjecting such

procedures to additional notice and comment, its claim is

against NOAA, not DOI. Cf. Animal Legal Defense Fund,

130 F.3d at ---, 1997 WL 753903, at *3 ("In analyzing the

'causation' element of constitutional standing, we ask whether

it is 'substantially probable' that the challenged acts of the

[respondent]--as opposed to some third party--caused [the

petitioner's] particularized injury."). Furthermore, NAM had

an opportunity to participate in the litigation challenging

NOAA's regulations--indeed, its counsel represented an in-

tervenor in that case. See General Elec., 128 F.3d at 769.

Accordingly, we find that NAM has failed to establish its

standing to bring its oil discharge claims against DOI.

III. CONCLUSION

For the foregoing reasons, we uphold DOI's Type A rule

(Natural Resource Damage Assessments--Type A Proce-

dures, 61 Fed. Reg. 20,560 (1996) (codified at 43 C.F.R. pt.

11)). Accordingly, NAM's petition is

Denied.