Natural Resource Damage Assessments
Federal RegisterAug 8, 1994
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 11
RIN 1090-AA21
Natural Resource Damage Assessments
AGENCY: Department of the Interior.
ACTION: Proposed rule.
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SUMMARY: The Department of the Interior is proposing to amend the
regulations for assessing natural resource damages resulting from a
discharge of oil into navigable waters under the Clean Water Act or a
release of a hazardous substance under the Comprehensive Environmental
Response, Compensation, and Liability Act. The regulations provide
procedures that designated Federal, State, and Indian tribe natural
resource trustees may use to obtain compensation from potentially
responsible parties for injuries to natural resources. The regulations
provide an administrative process for conducting assessments as well as
two types of technical procedures for the actual determination of
injuries and damages. ``Type A'' procedures are standard procedures for
simplified assessments requiring minimal field observation in cases of
minor discharges or releases in certain environments. ``Type B''
procedures are site-specific procedures for detailed assessments in
other cases.
The Department of the Interior is proposing to amend the
regulations to include an additional type A procedure for assessing
natural resource damages in Great Lakes environments. The proposed
procedure incorporates a computer model called the Natural Resource
Damage Assessment Model for Great Lakes Environments, Version 1.31
(NRDAM/GLE). The same modelling approach used to develop today's
proposed NRDAM/GLE is being used to develop a revised type A procedure
for coastal and marine environments that will soon be issued as a
separate proposed rule.
The Department is also proposing two amendments that would affect
all type A procedures. The Department is proposing to revise the
conditions under which type A and type B procedures can both be used in
the same assessment and to make explicit the scope of judicial review
of assessments performed using type A procedures.
DATES: Comments will be accepted through November 7, 1994.
ADDRESSES: Comments should be sent in duplicate to the Office of
Environmental Policy and Compliance, ATTN: NRDA Rule-GLE, Room 2340,
Department of the Interior, 1849 C Street, NW, Washington, DC 20240,
telephone: (202) 208-3301 (regular business hours 7:45 a.m. to 4:15
p.m., Monday through Friday). Computer diskettes containing the NRDAM/
GLE can be obtained from the same office.
FOR FURTHER INFORMATION CONTACT: Stephen F. Specht at (202) 208-3301,
or [email protected] on Internet.
SUPPLEMENTARY INFORMATION: This preamble is organized as follows:
I. Background
A. Statutory Provisions
B. Overview of the Department's Natural Resource Damage
Assessment Regulations
C. History of this Rulemaking
D. Related Rulemakings
II. Phases of an Assessment Incorporating a Type A Procedure
A. Preassessment Phase
B. Assessment Plan Phase
C. Assessment Phase
D. Post-Assessment Phase
III. Nature of Type A Procedures
A. Use of Average Values
B. Regulatory Status of Type A Procedures
IV. NRDAM/GLE
A. Overview
B. User-Supplied Data Inputs
C. Geographic Information System
D. Submodels
V. Conditions Regarding Use of the NRDAM/GLE
A. Primary Conditions
B. Secondary Conditions
VI. Response to Comments
I. Background
A. Statutory Provisions
The Department of the Interior (the Department) is proposing to
amend the regulations for assessing natural resource damages under the
Comprehensive Environmental Response, Compensation, and Liability Act,
as amended (42 U.S.C. 9601 et seq.) (CERCLA) and the Clean Water Act,
as amended (33 U.S.C. 1251 et seq.) (CWA). Under CERCLA, certain
categories of potentially responsible parties (PRPs) are liable for
natural resource damages resulting from a release of a hazardous
substance. CERCLA sec. 107(a). Natural resource damages are monetary
compensation for injury to, destruction of, or loss of natural
resources. CERCLA section 107(a)(4)(C). CWA creates similar liability
for natural resource damages resulting from discharges of oil into
navigable waters. CWA sec. 311(f).
Only designated natural resource trustees may recover natural
resource damages. CWA recognizes the authority of Federal and State
officials to serve as natural resource trustees. CERCLA recognizes the
authority of Federal and State officials as well as Indian tribes to
act as natural resource trustees.
Damages may be recovered for those natural resource injuries that
are not fully remedied by response actions as well as public economic
values lost from the date of the discharge or release until the
resources have fully recovered. All sums recovered in compensation for
natural resource injuries must be used to restore, rehabilitate,
replace, or acquire the equivalent of the injured natural resources.
CERCLA sec. 107(f)(1). Trustee officials may also recover the
reasonable costs of assessing natural resource damages.
CERCLA requires the promulgation of regulations for the assessment
of natural resource damages resulting either from a discharge of oil
into navigable waters under CWA or from a release of a hazardous
substance under CERCLA. CERCLA section. 301(c). The regulations are to
identify the ``best available'' procedures for assessing natural
resource damages. CERCLA section. 301(c)(2). CERCLA requires that the
natural resource damage assessment regulations include two types of
assessment procedures. ``Type A'' procedures are ``standard procedures
for simplified assessments requiring minimal field observation.''
CERCLA section. 301(c)(2)(A). ``Type B'' procedures are ``alternative
protocols for conducting assessments in individual cases.'' CERCLA sec.
301(c)(2)(B). Assessments performed by Federal and State trustee
officials in accordance with these regulations receive a rebuttable
presumption in court. CERCLA sec. 107(f)(2)(C). The promulgation of
these regulations was delegated to the Department. E.O. 12316, as
amended by E.O. 12580.
The natural resource damage provisions of CWA were amended by the
Oil Pollution Act (33 U.S.C. 2701 et seq.) (OPA). Among other things,
OPA recognized the authority of Indian tribes to sue for natural
resource damages resulting from discharges of oil into navigable waters
and authorized the National Oceanic and Atmospheric Administration
(NOAA) to develop new natural resource damage assessment regulations
for discharges of oil into navigable waters. The Department is
coordinating its rulemakings with NOAA to ensure, to the maximum extent
appropriate, that consistent processes are established for assessing
natural resource damages under CERCLA and OPA.
OPA provides that any rule in effect under a law replaced by OPA
will continue in effect until superseded. OPA sec. 6001(b). In
particular, Senate committee report language makes it clear that
``[t]he existing Interior Department rules * * * may be used with a
rebuttable presumption in the interim'' until NOAA promulgates new
regulations. S. Rep. No. 101-94, 101st Cong., 1st Sess. 15 (1990).
Therefore, until NOAA promulgates its regulations, the Department's
regulations may be used to assess natural resource damages under OPA.
B. Overview of the Department's Natural Resource Damage Assessment
Regulations
The Department has published various final rules for the assessment
of natural resource damages: 51 FR 27674 (Aug. 1, 1986); 52 FR 9042
(March 20, 1987); 53 FR 5166 (Feb. 22, 1988); 53 FR 9769 (March 25,
1988). These rulemakings are codified in the Code of Federal
Regulations at 43 CFR part 11. The Department also recently published a
final rule revising the administrative process and the type B
procedures that has not yet been codified in the Code of Federal
Regulations. 59 FR 14261 (March 25, 1994).
The Department's natural resource damage assessment regulations
provide an administrative process for conducting assessments as well as
technical methods for the actual determination of injuries and damages.
Assessments performed under the Department's regulations consist of
four phases: The Preassessment Phase, the Assessment Plan Phase, the
Assessment Phase, and the Post-Assessment Phase.
The Preassessment Phase consists of the activities that precede the
actual assessment. For example, upon detecting or receiving
notification of a discharge or release, trustee officials decide, based
on a number of criteria, whether further assessment actions are
warranted. This decision is documented in the Preassessment Screen
Determination. For more information on the Preassessment Phase, see
subpart B of 43 CFR part 11.
The Assessment Plan Phase includes the preparation of a written
Assessment Plan. The Assessment Plan, which is subject to public review
and comment, assists the involvement of PRPs, other trustee officials,
the general public, and any other interested parties. The Assessment
Plan also helps ensure that assessments are performed at a reasonable
cost. For more information on the Assessment Plan Phase, see subpart C
of 43 CFR part 11, as amended by 59 FR 14281-83.
During the Assessment Phase, trustee officials conduct the work
described in the Assessment Plan. The work consists of three steps:
Injury Determination; Quantification; and Damage Determination. In
Injury Determination, trustee officials determine whether any natural
resources have been injured. If trustee officials determine that
resources have been injured, they proceed to Quantification, in which
they quantify the resulting change in baseline conditions. ``Baseline''
conditions are the conditions that would have existed had the discharge
or release not occurred. Finally, in Damage Determination, trustee
officials calculate the monetary compensation to be sought as damages
for the natural resource injuries.
When a type A procedure is utilized, trustee officials perform
Injury Determination, Quantification, and Damage Determination through
the use of a standardized procedure involving minimal field work. The
Department is developing different type A procedures for different
environments in stages. Only one type A procedure has been included in
the regulations to date. That type A procedure incorporates a computer
model, called the Natural Resource Damage Assessment Model for Coastal
and Marine Environments, Version 1.2 (NRDAM/CME), to perform Injury
Determination, Quantification, and Damage Determination for minor
discharges or releases in coastal or marine environments. This proposed
rule would amend the regulations to include an additional type A
procedure to perform Injury Determination, Quantification, and Damage
Determination for minor discharges or releases in Great Lakes
environments. The proposed procedure incorporates a computer model
called the Natural Resource Damage Assessment Model for Great Lakes
Environments, Version 1.31 (NRDAM/GLE). For more information on use of
a type A procedure during the Assessment Phase, see subpart D of 43 CFR
part 11.
When a type A procedure is not applicable or does not address all
types of natural resource injuries and lost public economic values,
trustee officials may use type B procedures instead of or in addition
to a type A procedure. When type B procedures are utilized, trustee
officials perform Injury Determination, Quantification, and Damage
Determination through the use of site-specific studies. The regulations
provide a range of alternative type B scientific and economic
methodologies from which trustee officials may choose. For more
information on use of type B procedures during the Assessment Phase,
see subpart E of 43 CFR part 11, as amended by 59 FR 14283-87.
During the Post-Assessment Phase, trustee officials prepare a
Report of Assessment detailing the results of the Assessment Phase.
Trustee officials present the Report of Assessment to the PRPs along
with a demand for damages and assessment costs. If a PRP does not agree
to pay within 60 days, the trustee officials may file suit. Federal and
State trustee officials receive a rebuttable presumption of correctness
for assessments performed in accordance with the Preassessment Phase,
Assessment Plan Phase, Assessment Phase, and Post-Assessment Phase
procedures set forth in the regulations. Once damages have been awarded
or settlement has been reached, trustee officials establish an account
for the recovered damages and prepare a Restoration Plan for use of the
recovered damages. For more information on the Post-Assessment Phase,
see subpart F of 43 CFR part 11, as amended by 59 FR 14287.
C. History of this Rulemaking
On June 2, 1988, the Department announced its intent to develop a
type A procedure for Great Lakes environments. 53 FR 20143. On July 14,
1989, the U.S. Court of Appeals for the District of Columbia Circuit
issued two decisions that affected the development of the type A
procedure for Great Lakes environments.
State of Ohio v. United States Department of the Interior (Ohio v.
Interior) dealt with a challenge to the administrative process and type
B procedures. 880 F.2d 432 (D.C. Cir. 1989). The court upheld various
aspects of the administrative process and type B procedures but ordered
the Department to revise the type B procedures to reflect the statutory
preference for using restoration costs as the measure of natural
resource damages. The court used the term ``restoration costs'' to
encompass the cost of restoring, rehabilitating, replacing, and/or
acquiring the equivalent of the injured natural resources. The court
also ordered the Department to revise the type B procedures to allow
for the recovery of all reliably calculated economic values lost to the
public as a result of the injury to natural resources.
State of Colorado v. United States Department of the Interior
(Colorado v. Interior) dealt with a challenge to the type A procedure
for coastal and marine environments. 880 F.2d 481 (D.C. Cir. 1989).
Colorado v. Interior upheld the Department's sequential approach to
developing type A procedures but urged the Department to develop
additional type A procedures to address as many different cases as
possible. The court remanded the NRDAM/CME, however, based on the
reasoning in the Ohio v. Interior decision, to permit the Department to
allow for the calculation of restoration costs. The NRDAM/CME, as
originally developed, calculated damages based solely on lost public
use of the injured resources.
On September 22, 1989, the Department announced its intent to
modify the development of the NRDAM/GLE to conform with Ohio v.
Interior and Colorado v. Interior. 54 FR 39015. The Department
solicited comment on means of incorporating restoration costs and all
reliably calculated lost public economic values into the NRDAM/GLE.
D. Related Rulemakings
There are several other ongoing natural resource damage assessment
rulemakings.
1. CERCLA
The Department anticipates publishing a proposed rule to revise the
NRDAM/CME to comply with Colorado v. Interior and the statutory
biennial review requirement in October 1994. The same modelling
approach used to develop today's proposed NRDAM/GLE is being used to
revise the NRDAM/CME.
The Department intends to develop additional type A procedures, as
is feasible and appropriate, in future rulemakings. The Department
plans to convene a public meeting no later than June 1, 1995, to
discuss additional environments for which type A procedures may be
feasible.
On March 25, 1994, the Department published a final rule revising
the administrative process and the type B procedures in partial
response to Ohio v. Interior. 59 FR 14261. The final rule addresses all
aspects of the court remand other than the use of a particular economic
methodology, known as contingent valuation (CV), to estimate lost
nonuse values of injured resources. Nonuse values are those economic
values that are not dependent on use of a resource and include the
value of knowing that the resource exists and knowing that a resource
will be available for future generations. On May 4, 1994, the
Department published a notice of proposed rulemaking addressing CV as a
type B procedure for estimating lost nonuse values. 59 FR 23097. The
comment period on the notice was extended through October 7, 1994. 59
FR 32175 (June 22, 1994).
CERCLA mandates biennial review and revision, as appropriate, of
the Department's natural resource damage assessment regulations. The
Department will soon publish an advance notice of proposed rulemaking
to begin the biennial review of the administrative process and type B
procedures.
2. OPA
On January 7, 1994, NOAA published a proposed rule for assessing
natural resource damages resulting from oil discharges into navigable
waters under OPA. 59 FR 1062. NOAA has indicated that it is likely to
allow for use of the NRDAM/GLE after the Department publishes a final
rule incorporating the NRDAM/GLE. 59 FR 1124-25.
II. Phases of an Assessment Incorporating a Type A Procedure
This proposed rule would not change the administrative process for
performing a natural resource damage assessment already established
under the Department's regulations. Under the proposed rule, an
assessment incorporating use of the proposed NRDAM/GLE would entail the
same four phases already provided for in 43 CFR part 11: The
Preassessment Phase, the Assessment Plan Phase, the Assessment Phase,
and the Post-Assessment Phase. This proposed rule would provide an
additional type A procedure for trustee officials to use during the
Assessment Phase. The proposed procedure would be available only for
oil discharges or hazardous substance releases that enter Great Lakes
environments.
A. Preassessment Phase
During the Preassessment Phase of an assessment incorporating use
of the proposed NRDAM/GLE, trustee officials would conduct the
activities already provided for in subpart B of 43 CFR part 11. These
activities would include the preparation of a Preassessment Screen
Determination documenting the trustee officials' decision that
additional assessment work was warranted.
B. Assessment Plan Phase
Upon determining that additional assessment work was warranted,
trustee officials would begin the Assessment Plan Phase. The Assessment
Plan Phase of an assessment incorporating use of the proposed NRDAM/GLE
would include the trustee coordination and PRP identification and
involvement activities already provided for in subpart C of 43 CFR part
11, as amended by 59 FR 14281. Trustee officials would also prepare a
written Assessment Plan documenting their decision to use the NRDAM/GLE
as well as the incident-specific information they intend to use as data
inputs to the NRDAM/GLE. The Assessment Plan would then be made
available for public review and comment as already provided in 43 CFR
11.32, as amended by 59 FR 14282.
1. Conditions Regarding Use of the NRDAM/GLE
To assist trustee officials in deciding whether to use a type A
procedure, type B procedures, or a combination, the Department is
proposing several conditions regarding use of the NRDAM/GLE. Under the
proposed rule, whenever a discharge or release entered a Great Lakes
environment, trustee officials would determine if the conditions were
met. A Great Lakes environment is defined as any area within Lake
Superior, Lake Michigan, Lake Huron, Lake Erie, Lake Ontario, Lake St.
Clair, the St. Mary River, the St. Clair River, the Detroit River, the
Niagara River, the St. Lawrence River, or their contiguous wetlands or
shorelines. Trustee officials would include in the Assessment Plan
their determinations of whether the conditions regarding use of the
NRDAM/GLE were met.
The goal of the natural resource damage assessment process is to
obtain as quickly and cost-effectively as possible the compensation due
the public and to restore injured natural resources. Type B procedures
can be considerably more expensive and time-consuming than type A
procedures. Therefore, the Department believes that type A procedures
should be used whenever applicable.
Under the proposed rule, the conditions regarding use of the NRDAM/
GLE fall into two categories: Primary conditions and secondary
conditions. The absence of any primary condition indicates that use of
the NRDAM/GLE is inappropriate. The absence of any secondary condition
does not indicate that use of the NRDAM/GLE is inappropriate but does
indicate that the NRDAM/GLE might not address all types of natural
resource injuries and lost public economic values.
Under the proposed rule, if all primary and secondary conditions
were met, trustee officials would be required to use the NRDAM/GLE to
calculate all damages in order to get the rebuttable presumption. This
approach would be consistent with the existing standards for use of the
NRDAM/CME provided at 43 CFR 11.33.
The proposed rule would further provide that if one or more primary
conditions were not met, trustee officials would be required to use
type B procedures to calculate all damages in order to obtain the
rebuttable presumption. This approach differs from the existing
standards for use of the NRDAM/CME, which do not specify particular
conditions under which trustee officials must use type B procedures
instead of the type A procedure.
Finally, the proposed rule would provide that if all primary
conditions were met but one or more secondary conditions were not met,
trustee officials could use the NRDAM/GLE, type B procedures, or a
combination, and obtain a rebuttable presumption. Trustee officials
would decide which assessment procedures to use based on considerations
of ``cost effectiveness'' and ``reasonable cost,'' as those terms are
defined in 43 CFR 11.14. Trustee officials would consider whether the
benefits of the increased accuracy provided by type B procedures would
offset the anticipated additional cost of using type B procedures, and
whether the anticipated damages would exceed the anticipated cost of
using type B procedures. Trustee officials would document the
determination whether to use the NRDAM/GLE, type B procedures, or a
combination in the Assessment Plan.
The proposed rule would also require trustee officials to use type
B procedures, even if they determined that use of the NRDAM/GLE was
appropriate, whenever a PRP submitted a written request for use of type
B procedures and agreed within a time frame acceptable to the trustee
officials to advance the cost of using type B procedures.
Section V of this preamble contains additional information on the
conditions regarding use of the NRDAM/GLE.
2. Use of Combined Type A and Type B Procedures
Existing 43 CFR 11.15(a)(1) provides that, in order to obtain a
rebuttable presumption, trustee officials generally must use either a
type A procedure or type B procedures during the Assessment Phase but
not both. Under the existing regulations, the only time that trustee
officials can use both type A and type B procedures for the same
discharge or release is when the procedures address different resources
and do not result in double counting of damages.
The Department is proposing to delete the existing restriction in
43 CFR 11.15(a)(1) concerning use of both type A and type B procedures
during the Assessment Phase and to make various conforming changes
throughout the regulations. Under Sec. 11.33(c) of the proposed rule,
if all primary conditions regarding use of the NRDAM/GLE were met but
one or more secondary conditions were not met, trustee officials would
be allowed to use type B procedures to calculate damages for types of
natural resource injuries and lost public economic values that were not
addressed by the NRDAM/GLE and use the NRDAM/GLE to calculate all other
damages, provided there were no double recovery of damages. Trustee
officials would also be allowed to calculate all damages through use of
type B procedures provided such procedures were cost effective and
could be performed at a reasonable cost. A trustee official's decision
whether to use the NRDAM/GLE, type B procedures, or a combination
during the Assessment Phase would be documented in the Assessment Plan.
For example, one of the proposed secondary conditions regarding use
of the NRDAM/GLE is that the primary injuries to biological resources
are one or more of the following: Direct mortality resulting from
short-term exposure to the discharged oil or released hazardous
substance; direct loss of production resulting from short-term exposure
to the discharged oil or released hazardous substance; indirect
mortality resulting from food web losses; and indirect loss of
production resulting from food web losses. Under the proposed rule, if
all primary conditions regarding use of the NRDAM/GLE were met but
there were significant sublethal injuries, trustee officials would be
allowed to use type B procedures to calculate damages for those
sublethal injuries and use the NRDAM/GLE to calculate all other
damages, provided there were no double recovery of damages.
Trustee officials who used both the NRDAM/GLE and type B procedures
could prepare a single Assessment Plan, so long as it included all the
necessary information about how they intended to use the NRDAM/GLE, how
they intended to apply the type B procedures, and how they intended to
ensure no double recovery. During the Assessment Phase, the NRDAM/GLE
would be applied in compliance with Sec. 11.42 of the proposed rule,
while the type B procedures would be applied in accordance with subpart
E of 43 CFR part 11, as amended by 59 FR 14283. After applying the
NRDAM/GLE and completing the type B procedures, trustee officials could
prepare a single Report of Assessment detailing the results of both the
NRDAM/GLE and the type B procedures.
The proposed deletion of the restriction in 43 CFR 11.15(a)(1)
concerning use of combined type A and type B procedures would
temporarily leave trustee officials without guidance on determining
when it is appropriate to use type B procedures in addition to the
existing type A procedure for coastal and marine environments. The
Department plans to publish a proposed rule revising the type A
procedure for coastal and marine environments in October 1994. The
Department intends to include standards in that proposed rule that will
govern the use of type B procedures in addition to the revised NRDAM/
CME. The Department further intends to publish a final rule revising
the type A procedure for coastal and marine environments within a few
months after a final rule establishing the type A procedure for Great
Lakes environments is published. Therefore, the Department believes
that deletion of the existing restriction in 43 CFR 11.15(a)(1) in this
rulemaking would be appropriate. However, the Department solicits
comment on whether the existing restriction in 43 CFR 11.15(a)(1)
should be retained with regard to the existing NRDAM/CME until the
revised NRDAM/CME is promulgated.
3. User-Supplied Data Inputs
If trustee officials decided to use the NRDAM/GLE, the Assessment
Plan would also document the incident-specific information that they
intend to use as data inputs to the NRDAM/GLE. Under the proposed rule,
the NRDAM/GLE would supply most of the data used to determine injury
and damages. However, the Department is proposing to require trustee
officials to provide certain incident-specific information for use as
data inputs to the NRDAM/GLE.
Section IV.B of this preamble contains additional information on
user-supplied data inputs to the NRDAM/GLE.
C. Assessment Phase
After reviewing any comments received on the Assessment Plan,
trustee officials would begin the Assessment Phase. The Assessment
Phase of an assessment incorporating the NRDAM/GLE, like the Assessment
Phase of an assessment incorporating type B procedures, would entail
three steps: Injury Determination, Quantification, and Damage
Determination. Under the proposed rule, these steps would be performed
by the NRDAM/GLE.
The proposed NRDAM/GLE performs Injury Determination through the
Physical Fates Submodel and the Biological Effects Submodel. The
Physical Fates Submodel determines the pathway of contamination. Injury
is determined through the interaction of the Physical Fates Submodel
and the Biological Effects Submodel.
The proposed NRDAM/GLE performs Quantification through the
Biological Effects Submodel. The NRDAM/GLE databases contain
information about the baseline condition of natural resources in Great
Lakes environments. The Biological Effects Submodel quantifies the
change in baseline conditions as a result of the discharge or release.
The proposed NRDAM/GLE performs Damage Determination through the
Restoration Submodel and the Compensable Value Submodel. The
Restoration Submodel estimates appropriate restoration costs. The
Compensable Value Submodel calculates the economic values lost to the
public pending the reestablishment of baseline conditions. These lost
economic values are referred to as compensable values. Consistent with
the Ohio v. Interior and Colorado v. Interior decisions, the proposed
NRDAM/GLE adds compensable values and restoration costs, where
appropriate, to produce a damage figure.
Section IV.D of this preamble contains additional information on
how the NRDAM/GLE performs Injury Determination, Quantification, and
Damage Determination.
D. Post-Assessment Phase
After using the NRDAM/GLE, trustee officials would perform the
post-assessment activities already provided for in subpart F of 43 CFR
part 11, as amended by 59 FR 14287, including preparation of a Report
of Assessment. The proposed NRDAM/GLE provides a printed assessment
report that summarizes the computations performed to derive the damage
amount. Under the proposed rule, the Report of Assessment would
include: the Preassessment Screen Determination; the Assessment Plan,
which includes documentation of the trustee officials' determination to
use the NRDAM/GLE and documentation of the incident-specific data
inputs to the NRDAM/GLE; and the printed assessment report from the
NRDAM/GLE.
Trustee officials would present the Report of Assessment to the
PRPs along with a demand for damages and assessment costs. Trustee
officials may only recover their reasonable assessment costs. If
trustee officials used the NRDAM/GLE, reasonable assessment costs would
include: the cost of performing the Preassessment Phase and Assessment
Plan Phase activities required under subparts B and C of 43 CFR part
11; the cost of developing site-specific data inputs to the NRDAM/GLE;
and the cost of using the NRDAM/GLE.
If a PRP did not agree to pay within 60 days, trustee officials
could file suit. Federal and State trustee officials would receive a
rebuttable presumption of correctness for their assessments provided
they complied with the proposed standards for use of the NRDAM/GLE as
well as the Preassessment Phase, Assessment Plan Phase, and Post-
Assessment Phase procedures set forth in the regulations.
Once damages were awarded or a settlement reached, trustee
officials would prepare a written Restoration Plan explaining how they
intend to use the recovered damages to restore, rehabilitate, replace,
and/or acquire the equivalent of the injured resources. The Restoration
Plan would be made available for public comment and review.
Under the proposed rule, trustee officials would have the
discretion to determine the appropriate site-specific use of damage
recoveries to restore, rehabilitate, replace, and/or acquire the
equivalent of the injured resources and would not be restricted to
implementing the general restoration methods that were used by the
NRDAM/GLE for the calculation of damages.
Type A procedures are designed to assess damages resulting from
minor discharges or releases. Therefore, it may not always be practical
to prepare a separate Restoration Plan for each award or settlement
based on use of a type A procedure. Existing 43 CFR 11.93(d) provides
that trustee officials may apply several type A awards to a single
Restoration Plan, so long as the Plan is intended to address the same
or similar injuries as those identified in each application of the type
A procedure.
III. Nature of Type A Procedures
A. Use of Average Values
CERCLA mandates that the type A procedures incorporate simplified
procedures for conducting assessments with minimal field observation.
CERCLA sec. 301(c)(2)(A). Standardized procedures for simplified
assessments rely heavily on average rather than site-specific values.
Therefore, a type A procedure may generate a damage figure that is less
than, equal to, or greater than the damage figure that would have been
calculated if type B procedures had been used for the same discharge or
release. Nevertheless, Federal and State trustee officials who comply
with the Department's regulations obtain a rebuttable presumption,
regardless of whether they use type A or type B procedures. See CERCLA
section 107(f)(2)(C).
B. Regulatory Status of Type A Procedures
Type A procedures are developed as regulations. Therefore, once a
type A procedure is promulgated as a final rule, the procedure can be
changed only through a rulemaking by the Department. For example, the
Department is proposing to have the NRDAM/GLE incorporated by reference
in the natural resource damage assessment regulations. Thus, once the
type A procedure for Great Lakes environments is promulgated as a final
rule, trustee officials will have to use the version of the NRDAM/GLE
incorporated in the final rule, without any alteration of the submodels
or databases, in order to obtain a rebuttable presumption for an
assessment using the type A procedure for Great Lakes environments.
Moreover, CERCLA provides that any challenges to regulations
promulgated under the statute must be made in the U.S. Court of Appeals
for the District of Columbia Circuit within 90 days from the date of
promulgation and cannot be made in any civil proceeding to obtain
damages. CERCLA section 113(a). Therefore, once a type A procedure is
promulgated as a final rule, any challenges to the workings, databases,
or underlying structure of the procedure would have to be made within
90 days of the date of promulgation rather than in a particular natural
resource damage case.
The Department is proposing to incorporate this statutory provision
in the regulations by making explicit that when trustee officials use a
type A procedure in compliance with the Department's regulations, a PRP
challenge is restricted to the trustee officials' decision to use a
type A procedure and the accuracy of any incident-specific data used by
the trustee officials to implement the type A procedure. This proposed
clarification would apply to all type A procedures, not just the
proposed NRDAM/GLE. Also, Federal and State trustee officials who have
complied with the Department's regulations obtain a rebuttable
presumption of correctness for their decision to use the type A
procedure and for their incident-specific data.
For example, once the NRDAM/GLE is promulgated as a final rule, a
PRP in a natural resource damage case where the NRDAM/GLE is used in
accordance with the Department's regulations will not be able to
challenge the NRDAM/GLE submodels or databases. A PRP will only be
allowed to challenge the trustee officials' decision to use the NRDAM/
GLE and the trustee officials' incident-specific data inputs to the
NRDAM/GLE. Federal and State trustee officials who comply with the
standards governing use of the NRDAM/GLE, as well as the Preassessment
Phase, Assessment Plan Phase, and Post-Assessment Phase procedures set
forth in the regulations, will obtain a rebuttable presumption of
correctness for their decision to use the NRDAM/GLE and for their
incident-specific data inputs. PRPs who wish to avoid being bound by
the NRDAM/GLE submodels and databases have the option of funding the
performance of type B procedures.
IV. NRDAM/GLE
A. Overview
The proposed NRDAM/GLE consists of integrated submodels and
databases that calculate natural resource damages based on appropriate
estimated restoration costs and economic values lost to the public
pending completion of restoration. The proposed NRDAM/GLE is a complex
program that represents state-of-the-art computer modelling; however,
it is designed for use by relatively untrained individuals. The
proposed NRDAM/GLE is available on diskettes and can be used on most
IBM-compatible personal computers.
The proposed NRDAM/GLE was developed under contract to the
Department by Applied Science Associates, Inc., Narragansett, Rhode
Island, and HBRS, Inc., Madison, Wisconsin. Intensive efforts were made
to ensure that the NRDAM/GLE incorporated the best available scientific
and economic data and studies. The data and studies that were obtained
were then carefully reviewed by a wide range of experts.
A detailed description of the proposed NRDAM/GLE can be found in
the four-volume ``CERCLA Type A Natural Resource Damage Assessment
Model for Great Lakes Environments Technical Documentation,'' dated
August 1994, prepared for the Department by Applied Science Associates,
Inc., and HBRS, Inc. (NRDAM/GLE technical document). Volume I of the
NRDAM/GLE technical document discusses the content and derivation of
the NRDAM/GLE submodels and databases. Volume II is a user's manual.
Volume III is a compilation of all the database tables used by the
proposed NRDAM/GLE and discussed in Volume I. Volume IV is a listing of
the active source code for the proposed NRDAM/GLE. Under the proposed
rule, the NRDAM/GLE and the NRDAM/GLE technical document would be
incorporated by reference in the regulations.
Computer diskettes containing the proposed NRDAM/GLE and the NRDAM/
GLE technical document can be obtained for review and comment from the
address given at the beginning of this notice. The Department solicits
comment on all aspects of the proposed NRDAM/GLE, the proposed NRDAM/
GLE technical document, and the proposed rule language concerning use
of the NRDAM/GLE.
The proposed NRDAM/GLE is supplied with a menu-driven graphic
display to assist users. Users can execute the proposed NRDAM/GLE with
or without the graphic display. The proposed NRDAM/GLE is available on
3.5 inch diskettes. The minimum computer configuration required to use
the proposed NRDAM/GLE is:
IBM-compatible personal computer using MS-
DOS 3.1 or higher;
80286 processor or better with math co-processor;
1.4 megabyte 3.5 inch floppy disk drive;
640 kilobytes of RAM with 540 kilobytes available; and
Hard disk with 30 megabytes of available space.
Also, a VGA color monitor and Microsoft-compatible mouse are
needed to use the graphic display.
For further information on installation of the proposed NRDAM/GLE,
see the NRDAM/GLE technical document, Volume II, Section 2.
The Department has endeavored to assure that the proposed NRDAM/GLE
is without software coding errors. Although extensive testing and
validation efforts have been performed to date, the Department is
continuing with additional efforts. The Department anticipates that
reviewers may discover coding errors in either the user interface or
the model's active code. Reviewers may also identify certain aspects of
individual output computations that they consider atypical. In all
instances, the Department requests to be informed of the technical
circumstances that led to the error or perceived atypical output. In
order for the Department to replicate the technical circumstances, the
specific user inputs must be provided by the reviewer along with a
brief statement describing the error or atypical output. Provision of
such technical information need not await formal submission of public
comment on the overall rulemaking.
To facilitate reviewers' technical submissions, the Department
notes that the proposed NRDAM/GLE creates a series of individual
internal files for each scenario that is developed. The Department
encourages reviewers to electronically submit the pertinent files to
the contact listed at the front of this notice. The user inputs to the
NRDAM/GLE may be found in the directories:
/NRDAMGLE/DATA/MODELOUT/*.SCN (ASCII file)
/NRDAMGLE/DATA/MODELOUT/*.CLS (ASCII file)
/NRDAMGLE/DATA/WIND/*.WND (ASCII file).
B. User-Supplied Data Inputs
Most of the data used by the proposed NRDAM/GLE to determine and
quantify injury and calculate damages are included in the NRDAM/GLE
databases. However, the proposed rule would require trustee officials
to provide two categories of incident-specific data inputs to the
proposed NRDAM/GLE. One category of data inputs would include
information that trustee officials would be required to provide in
order to use the proposed NRDAM/GLE. The other category would include
additional information that trustee officials would be allowed to
provide under certain circumstances.
1. Required User-Supplied Data Inputs
The Department is proposing to require trustee officials to supply
the following incident-specific data:
Identity of the discharged oil or released hazardous
substance;
Amount of the discharged oil or released hazardous
substance that entered a Great Lakes environment;
Length of time over which the discharged oil or released
hazardous substance entered a Great Lakes environment;
Date and time that the discharged oil or released
hazardous substance began to enter a Great Lakes environment;
Latitude and longitude where the discharged oil or
released hazardous substance entered a Great Lakes environment;
Wind velocity and direction during the 30-day period
starting 24 hours before the discharged oil or released hazardous
substance entered a Great Lakes environment;
Percentage of the discharged oil or released hazardous
substance that was removed during response actions and the timing of
the removal;
Closures of boating areas, Federal public beaches, State
public beaches, fisheries, mammal hunting or trapping areas, and
waterfowl hunting areas due to the discharge or release; and
Gross National Product Implicit Price Deflator for the
quarter in which the discharge or release occurred.
The Department is also proposing to require trustee officials to
determine whether the proposed NRDAM/GLE should consider the effects of
ice cover. If trustee officials determine that ice cover effects should
be considered, the proposed NRDAM/GLE supplies data on average ice
cover for the relevant time period. The Department solicits comment on
whether the NRDAM/GLE should always consider the effects of ice cover.
Trustee officials may have direct knowledge of some of the required
incident-specific data inputs. Additional information may be available
from the On-Scene Coordinator (OSC), who is responsible for managing
response actions following a discharge of oil or release of a hazardous
substance. The U.S. Coast Guard will normally be the OSC for discharges
and releases in Great Lakes environments.
Hazardous substances are identified by Chemical Abstract Service
(CAS) Registry Number. The CAS number and the chemical, physical, and
toxicological properties associated with each of the oils and hazardous
substances contained in the NRDAM/GLE database are listed the NRDAM/GLE
technical document, Volume III, Table III.2.1. Oils are categorized as
specified in the NRDAM/GLE technical document, Volume III, Table
III.2.4. If a mixture has been discharged or released, trustee
officials must select one oil or one hazardous substance in the mixture
and use the NRDAM/GLE based on the quantity of the selected oil or
hazardous substance contained in the mixture.
Information on wind conditions may be available from local sources
or from the National Climatic Data Center, Asheville, NC, (704) 271-
4800.
The Gross National Product Implicit Price Deflator is available
from the U.S. Department of Commerce/Bureau of Economic Analysis in the
Survey of Current Business, Washington, D.C., (202) 606-9900. The
Department solicits comment on whether the rule should require trustee
officials to supply the Gross Domestic Product Implicit Price Deflator
instead of the Gross National Product Implicit Price Deflator. The
Gross Domestic Product Implicit Price Deflator is also available from
the U.S. Department of Commerce/Bureau of Economic Analysis.
Under the proposed rule, trustee officials would document in the
Assessment Plan the required incident- specific information they intend
to use as data inputs to the NRDAM/GLE and the form in which they
intend to enter the information into the NRDAM/GLE.
For further information on the proposed required incident-specific
data inputs, see the NRDAM/GLE technical document, Volume II, Sections
4.1 and 5.1.
2. Additional User-Supplied Data Inputs
In addition to the proposed required incident-specific data inputs,
the Department is proposing to allow trustee officials to supply
additional incident-specific data inputs under certain circumstances.
Under the proposed rule, trustee officials could supply the following
data inputs if they estimate that conditions at the point where the
discharged oil or released hazardous substance entered a Great Lakes
environment differed significantly from the typical values for that
season, as built into the proposed NRDAM/GLE, and if the data can be
collected consistent with the requirements of reasonable cost and cost
effectiveness:
Water temperature when the discharged oil or released
hazardous substance entered a Great Lakes environment;
Total suspended sediment concentration when the discharged
oil or released hazardous substance entered a Great Lakes environment;
Mean settling velocity of suspended solids when the
discharged oil or released hazardous substance entered a Great Lakes
environment; and
Air temperature when the discharged oil or released
hazardous substance entered a Great Lakes environment.
Under the proposed rule, if trustee officials decided to develop
incident-specific values for these parameters, they would be required
to document their decision in the Assessment Plan. If trustee officials
do not supply incident-specific values, the proposed NRDAM/GLE supplies
default values.
For further information on the proposed additional incident-
specific data inputs, see the NRDAM/GLE technical document, Volume II,
Sections 4.1 and 5.1.
C. Geographic Information System
The proposed NRDAM/GLE is supported by a geographic information
system (GIS) that supplies geographically distributed information to
the submodels. The submodels divide space into series of rectangular
grids. Each grid contains 2,500 cells. The size of the overall grid
and, therefore, the interior cells, varies based on the physical
geometry and the availability of natural resource information within
each area. For example, smaller grids are used for nearshore areas than
are used for offshore areas. Once a submodel selects a grid, the GIS
draws the necessary environmental and biotic data from the appropriate
databases. Conditions are assumed uniform throughout a particular grid
cell.
For further information about the proposed GIS and grid system, see
the NRDAM/GLE technical document, Volume I, Section 3.14.
D. Submodels
The proposed NRDAM/GLE includes five submodels: the Hydrodynamics
Submodel, the Physical Fates Submodel, the Biological Effects Submodel,
the Restoration Submodel, and the Compensable Value Submodel. Under the
proposed rule, these submodels would use data from the NRDAM/GLE
databases and the incident-specific data inputs supplied by trustee
officials to perform Injury Determination, Quantification, and Damage
Determination.
1. Hydrodynamic Submodel
The proposed Hydrodynamic Submodel simulates wind-driven currents
in Great Lakes environments. The proposed Submodel creates a time
series of currents using the incident-specific data on wind conditions
supplied by trustee officials and data from the Climatological
Database. The time series is used by the Physical Fates Submodel.
For further information on the proposed Hydrodynamic Submodel, see
the NRDAM/GLE technical document, Volume I, Section 2.
2. Physical Fates Submodel
The proposed Physical Fates Submodel estimates the distribution of
the discharged oil or released hazardous substance on the water
surface, along shorelines, in the water column, and in sediments over
time. The proposed Submodel uses an array of particles to represent the
discharged oil or released hazardous substance. A variable fraction of
the contaminant mass is associated with each particle. The distribution
of the particles is tracked in both time and space as they move across
a gridded environment.
Under the proposed rule, the Physical Fates Submodel simulates:
Spreading of surface slicks; evaporation from surface slicks; beaching;
entrainment and dissolution in the water column; volatilization from
the surface and water column; degradation; removal as a result of
response activities; adsorption onto and desorption from particulate
matter in the water column; deposition from the water column to bottom
sediments; dissolution from sediments to the water column; and removal
from the shoreline to the water column or surface. When simulating
these processes, the proposed Submodel draws specific data about the
physical and chemical properties of the discharged oil or released
hazardous substance from the Chemical and Toxicological Database.
The proposed Submodel continues the simulations until all
environmental exposure levels are below acute toxicity thresholds. The
proposed Chemical and Toxicological Database includes acute toxicity
thresholds for each oil and hazardous substance covered by the proposed
NRDAM/GLE. The proposed Submodel creates a file of surface slick
coverage, shoreline coverage, and substance concentration levels in the
water column and in bottom sediments. This file is used by the proposed
Biological Effects Submodel.
For further information on the proposed Physical Fates Submodel,
see the NRDAM/GLE technical document, Volume I, Section 3. For further
information on the proposed Chemical and Toxicological Database, see
the NRDAM/GLE technical document, Volume I, Section 7; and Volume III,
Section 2.
3. Biological Effects Submodel
The proposed Biological Effects Submodel determines whether certain
types of natural resource injuries have resulted from the discharge or
release and, if so, quantifies those injuries. The proposed Biological
Effects Submodel determines and quantifies the following types of
injury: (1) Direct mortality resulting from short-term exposure to the
discharged oil or released hazardous substance; (2) direct loss of
production resulting from short-term exposure to the discharged oil or
released hazardous substance; (3) indirect mortality resulting from
food web losses; and (4) indirect loss of production resulting from
food web losses.
The proposed Biological Effects Submodel determines direct
mortality of fish and wildlife and direct loss of production for plants
and invertebrates by calculating exposure of different species to the
discharged oil or released hazardous substance. When performing these
calculations, the proposed Biological Effects Submodel uses the data
generated by the Physical Fates Submodel concerning the distribution
and concentration of the discharged oil or released hazardous
substance.
The proposed Biological Effects Submodel determines direct
mortality of fish through use of an array of particles to represent
fish populations potentially exposed to the discharge or release. Each
particle represents a variable number of fish present at the time of
the discharge or release. Each contiguous grouping of grid cells of the
same habitat type represents a separate ecosystem. The particles move
at random within an ecosystem during a single season. Each time a
particle enters an area with dissolved water or sediment concentrations
above an acute toxicity threshold, the proposed Submodel calculates the
percentage mortality of the fish represented by the particle. These
calculations continue until concentrations of the discharged oil or
released hazardous substance have fallen below acute toxicity
thresholds.
The proposed Biological Effects Submodel uses similar calculation
procedures to determine direct mortality of birds and mammals. However,
under the proposed rule, the Submodel only determines direct mortality
of birds and mammals when the discharged oil or released hazardous
substance forms a surface slick.
The proposed Biological Effects Submodel determines direct
mortality of fish eggs and larvae through use of particle arrays that
move with the currents. For plants and invertebrates, the proposed
Submodel determines direct loss of production based on the assumption
that such biota are uniformly distributed throughout a particular
ecosystem rather than through use of particle arrays.
Once direct mortality and direct loss of production have been
determined, the proposed Biological Effects Submodel determines
indirect mortality and indirect loss of production for fish and
wildlife resulting from reductions in food resources. The proposed
Submodel uses a food web model to determine the effect that direct
mortality and direct loss of production of plants, invertebrates, and
noncommercial fish and mammals have on higher trophic-level fish and
wildlife.
After determining injuries from both direct exposure and food web
losses, the proposed Biological Effects Submodel quantifies those
injuries both in terms of lost populations over time and, in the case
of fish and wildlife, fishing and hunting losses. The proposed Submodel
also computes fishing and hunting losses resulting from closures of
fisheries, waterfowl hunting areas, and mammal hunting or trapping
areas, as specified by trustee officials. This information is used by
the Compensable Value Submodel.
Data on habitat type and species biomass are supplied to the
proposed Biological Effects Submodel by the Biological Database.
Commenters with additional data on Great Lakes habitats and species
biomass are encouraged to provide the data to the Department.
For further information on the proposed Biological Effects
Submodel, see the NRDAM/GLE technical document, Volume I, Section 4.
For further information on the proposed Biological Database, see the
NRDAM/GLE technical document, Volume I, Section 8; and Volume III,
Section 3.
4. Restoration Submodel
The proposed Restoration Submodel estimates the cost of restoring
the injured resources. Under the proposed rule, the Submodel determines
if various restoration actions are warranted and, if so, calculates the
cost of those actions.
The first type of restoration action evaluated by the proposed
Restoration Submodel is habitat restoration. For each affected habitat,
the proposed Submodel evaluates whether a particular restoration action
is warranted. When shallow water sediments or sediments in connecting
channels are affected, the proposed Submodel evaluates dredging of
sediments and refilling with clean material. When deep water sediments
are affected, the proposed Submodel evaluates capping of the sediment.
When wetlands are affected, the proposed Submodel evaluates removal of
the contaminated substrate, replacement with clean material, and
replanting. When shorelines are affected, the proposed Submodel
evaluates washing of sand and gravel, replacement of mud, and cleaning
of rocks and artificial structures.
For each relevant habitat restoration action, the proposed
Restoration Submodel compares the total injury that would result if the
action were performed with the total injury that would result if the
action were not performed and natural recovery were relied upon
instead. Injury is quantified in terms of lost public use of injured
resources (i.e. compensable value) within the relevant habitat. Data on
compensable values are supplied to the Restoration Submodel by the
Compensable Value Submodel.
Under the proposed rule, if the relevant habitat restoration action
would result in a lower measure of total injury than reliance upon
natural recovery, then the Restoration Submodel assumes that the
habitat restoration action will be performed. The proposed Restoration
Submodel then computes the cost of the habitat restoration action. Cost
data are supplied by the Restoration Cost Database.
If the relevant habitat restoration action would not result in a
lower measure of total injury than reliance upon natural recovery, then
the proposed Restoration Submodel does not compute any habitat
restoration costs. Instead, the proposed Submodel computes the cost of
restoring the assimilative capacity of Great Lakes environments to
baseline.
Assimilative capacity is the ability of a natural resource, such as
water, to absorb pollutants. When using type B procedures, trustee
officials are allowed to consider lost assimilative capacity when
determining the necessary level of restoration, rehabilitation,
replacement, and/or acquisition of equivalent resources. See 51 FR
27687, 27716 (August 1, 1986); 59 FR 14273 (March 25, 1994). The
proposed Restoration Submodel calculates damages associated with
restoring baseline assimilative capacity of Great Lakes environments in
cases where habitat restoration action is not warranted.
When habitat restoration actions are not warranted, the proposed
NRDAM/GLE computes the time it will take until environmental exposure
levels are below acute toxicity thresholds. However, some non-acutely
toxic chemical mass will remain dispersed in the Great Lakes
environments. The continued presence of this chemical mass reduces the
overall assimilative capacity of Great Lakes environments. It is not
technically feasible to directly remove the remaining dispersed
chemical mass. Therefore, the proposed Restoration Submodel assumes
that a contaminant mass with toxicity equivalent to the remaining
dispersed mass of the discharged oil or released hazardous substance
will be removed elsewhere from the Great Lakes environments.
Specifically, the proposed Submodel assumes that an equivalent mass of
contaminated sediment will be removed from one of 42 harbors, river
mouths, or connecting channels in the Great Lakes that have been
designated as areas of concern by the International Joint Commission.
The proposed Restoration Submodel then computes the cost of removing
the contaminated sediment. Cost data are provided by the Restoration
Cost Database.
The Department solicits comment on whether alternative methods of
restoring lost assimilative capacity, such as controlling discharges
from publicly owned treatment works or other point sources, would be
more cost effective than the removal of contaminated sediment from the
areas of concern. The Department further solicits comment on whether
there are sufficient technical data concerning such methods to allow
for their incorporation into the NRDAM/GLE.
The proposed Restoration Submodel also computes the cost of
restocking fish and wildlife. The proposed Submodel assumes that once
the habitat has recovered, either through natural recovery or through
implementation of a habitat restoration action, injured fish and
wildlife species will be restocked if stocks are available. Data on the
availability and cost of stocks are provided by the Restoration Cost
Database.
Under the proposed rule, the Restoration Submodel sums the costs of
habitat restoration, assimilative capacity restoration, and restocking,
as relevant, to calculate the total restoration cost. This figure is
added to the compensable value figure computed by the Compensable Value
Submodel to form the total damage claim.
For further information on the proposed Restoration Submodel, see
the NRDAM/GLE technical document, Volume I, Section 5. For further
information on the proposed Restoration Cost Database, see the NRDAM/
GLE technical document, Volume I, Section 9; and Volume III, Section 5.
5. Compensable Value Submodel
The proposed Compensable Value Submodel calculates compensable
value. Compensable value, as computed by the proposed Submodel, is the
sum of certain economic values lost to the public pending completion of
either natural recovery or appropriate restoration actions, as
determined by the Restoration Submodel. Only public losses are included
in compensable value.
The proposed Compensable Value Submodel computes two types of
compensable values: (1) Lost consumptive use values; and (2) lost
nonconsumptive use values. Consumptive use values are derived from
harvesting activities, such as fishing or hunting, that remove a
natural resource from the environment. Nonconsumptive use values are
derived from activities, such as birdwatching or beach visitation, that
do not remove any resources from the environment.
Under the proposed rule, the Compensable Value Submodel does not
estimate lost nonuse values. Nonuse values are those values that are
not dependent on use of the resource, such as the value of knowing that
a resource exists. Virtually no empirical studies have been found that
address nonuse values for resources in Great Lakes environments or that
are in a form that can be used in the NRDAM/GLE, i.e. that allow the
calculation of marginal values appropriate for relatively small losses
in the stock of natural resources.
Under the proposed rule, lost consumptive use values are calculated
for lost harvests of: (1) Certain commercially exploited fish species;
(2) certain commercially exploited furbearer species; (3) certain
recreationally harvested fish species; and (4) certain recreationally
harvested waterfowl species.
The compensable value for lost harvests of commercially exploited
fish and furbearers is the reduction in the in- situ value of the
species as a result of the lost harvests. Under the proposed rule, the
Compensable Value Submodel assumes that: (1) The marginal productivity
of harvest effort recovers completely; (2) the level of harvest effort
remains unchanged; and (3) markets for the harvested resources are
sufficiently competitive and losses are sufficiently small such that
resource prices are not affected. The proposed Compensable Value
Submodel computes the reduction in the in-situ value of commercially
exploited fish and furbearers by multiplying the total lost harvest of
such species, as computed by the Biological Effects Submodel, by the
commercial price per unit of harvest, as supplied by the Compensable
Value Database.
The compensable value for lost harvests of recreationally harvested
fish and waterfowl is the reduction in the associated value of
recreational fishing and hunting trips. Under the proposed rule, the
Compensable Value Submodel assumes that: (1) The marginal yield of
recreational effort recovers completely; and (2) the level and
geographic distribution of recreational effort remain unchanged. The
proposed Compensable Value Submodel computes the reduction in value of
recreational fishing and hunting trips by multiplying the total lost
recreational harvest of fish and waterfowl species, as computed by the
Biological Effects Submodel, by the marginal value of harvesting an
additional fish or bird, as supplied by the Compensable Value Database.
Under the proposed rule, lost nonconsumptive use values are
calculated for lost beach visitation, boating, and wildlife viewing.
The proposed Compensable Value Submodel computes compensable value for
lost beach visitation and boating only if trustee officials specify
that there has been a closure of a beach or a boating area. If a
closure is specified, the proposed Compensable Value Submodel
calculates compensable value by multiplying the geographical area
closed per day and the number of days closed, as supplied by trustee
officials, by the per day value of trips to the closed area. Data on
the per unit value of lost nonconsumptive uses are supplied by the
Compensable Value Database.
The proposed Compensable Value Submodel calculates compensable
value for lost wildlife viewing only for trips originating within the
immediate area. The proposed Compensable Value Submodel first estimates
the number of recreational trips affected by the discharge or release,
and then estimates a per animal nonconsumptive use value. In cases
where there have been significant wildlife viewing losses for trips
originating outside the immediate area, trustee officials could use
type B procedures to estimate such losses and use the NRDAM/GLE to
calculate other damages. Due to a lack of empirical data, the proposed
Compensable Value Submodel does not estimate compensable value for lost
recreational opportunities occurring in other locations due to lost
migration of the affected wildlife population.
The estimated per animal nonconsumptive use value varies with the
size of the affected wildlife population and the estimated number of
affected recreational trips. These estimated values are derived by
disaggregating average nonconsumptive use values by species and species
population. The proposed Compensable Value Submodel estimates a
relatively low per animal nonconsumptive use value for species that are
abundant and areas that have few affected recreational trips.
Alternatively, the proposed Compensable Value Submodel estimates a
higher per animal nonconsumptive use value for species that are less
abundant and areas that have more affected recreational trips. A
detailed explanation of this methodology is provided in the NRDAM/GLE
technical document, Volume I, Section 6.4.1. The specific per animal
nonconsumptive use values incorporated in the proposed NRDAM/GLE are
listed in the NRDAM/GLE technical document, Volume III, Tables III.4.2
through III.4.6.
The Department solicits comments on the reliability of the proposed
methodology for computing compensable value for lost wildlife viewing.
The Department also solicits comment on ways of improving the
reliability of the proposed methodology. Specifically, comments are
solicited relating to the applicability of this methodology to
different types of wildlife (e.g., mammals, birds, and reptiles) and
different locations. Comments are solicited regarding the use of
disaggregated average nonconsumptive use values to represent the
marginal contribution by one wildlife individual to total
nonconsumptive value. The Department also requests comment on whether
extremely small and large values for a particular species should be
excluded from the NRDAM/GLE and the criterion for doing so. Further,
commenters with additional valuation data or alternative valuation
methodologies concerning wildlife viewing in Great Lakes environments
are encouraged to provide the data and methodologies to the Department.
One alternative under consideration is the deletion of all
nonconsumptive wildlife values from the NRDAM/GLE. Many species, such
as bald eagles, have no consumptive use. Therefore, if nonconsumptive
wildlife values were deleted from the NRDAM/GLE, then the compensable
value figure calculated by the model would not reflect any lost
economic values associated with such species. In order to obtain
compensation for such lost values, trustee officials would have to
conduct site-specific type B procedures. The Department solicits
comment on whether reliance on type B procedures to capture lost
nonconsumptive wildlife values would be feasible for minor discharges
and releases in Great Lakes environments. Based on the comments
received, the Department will decide whether to retain the proposed
compensable values for lost wildlife viewing, modify those values, or
delete them from the final version of the NRDAM/GLE.
The proposed Compensable Value Submodel uses the Gross National
Product Implicit Price Deflator, as supplied by trustee officials, to
adjust per unit values to current dollars. As noted above, the
Department solicits comment on whether the Compensable Value Submodel
should use the Gross Domestic Product Implicit Price Deflator, rather
than the Gross National Product Implicit Price Deflator.
The proposed Compensable Value Submodel discounts the value of
future consumptive and nonconsumptive losses using a seven percent
discount rate, which is the discount rate for public investment
specified in the current version of Office of Management and Budget
Circular A-94 (OMB Circular A-94), dated October 29, 1992, which is
available from the OMB Publications Office (202-395-7332). The
Department is soliciting comment on whether use of a fixed seven
percent discount rate (the value specified in Circular A-94) is
appropriate or whether trustee officials should be allowed to specify a
different discount rate. A possible alternative discount rate for
future public losses of natural resources is the consumer rate of time
preference, which is the rate of interest at which an individual would
be indifferent between consuming goods now and postponing consumption
to a later date. Interest rates on investments with little or no
default risk, such as U.S. Treasury bonds, provide an estimate of the
consumer rate of time preference. The Department solicits comment on
whether trustee officials should be allowed to supply a discount rate
based on the U.S. Treasury borrowing rate on marketable securities with
maturities comparable to the period over which future consumptive and
nonconsumptive losses will occur. Information on U.S. Treasury
borrowing rates on marketable securities is provided in Appendix C of
OMB Circular A-94.
If the U.S. Treasury borrowing rate on marketable securities is
used as the discount rate, the Department solicits comment on whether
trustee officials should be allowed to determine the appropriate
maturity or whether the rule should establish a single maturity that
must be used for all cases. For example, because the proposed NRDAM/GLE
is designed for minor discharges and releases, it might be reasonable
to assume that consumptive and nonconsumptive losses will not extend
more than three years into the future. Therefore, trustee officials
could be required to use as a discount rate the U.S. Treasury borrowing
rate on marketable securities with three-year maturities.
After the Gross National Product Implicit Price Deflator and the
discount rate have been applied, the proposed Compensable Value
Submodel sums all lost consumptive values and all lost nonconsumptive
values to calculate the total compensable value. This figure is added
to the restoration costs computed by the Restoration Submodel for a
damage figure.
For further information on the proposed Compensable Value Submodel,
see the NRDAM/GLE technical document, Volume I, Section 6. For further
information on the proposed Compensable Value Database, see the NRDAM/
GLE technical document, Volume I, Section 6; and Volume III, Section 4.
V. Conditions Regarding Use of the NRDAM/GLE
The proposed rule provides several conditions regarding use of the
NRDAM/GLE. Under the proposed rule, if the discharged oil or released
hazardous substance entered a Great Lakes environment, trustee
officials would be required to determine if the conditions regarding
use of the NRDAM/GLE were met. The conditions regarding use of the
NRDAM/GLE fall into two categories primary conditions and secondary
conditions.
If all of the conditions, both primary and secondary, were met,
trustee officials would be required to use the NRDAM/GLE to calculate
all damages in order to get the rebuttable presumption. If trustee
officials determined that one or more primary conditions were not met,
they would be required to use type B procedures to calculate all
damages in order to obtain the rebuttable presumption. If trustee
officials determined that all primary conditions were met but one or
more secondary conditions were not met, they could use the NRDAM/GLE,
type B procedures, or a combination, and obtain a rebuttable
presumption. Trustee officials would decide which assessment procedures
to use based on considerations of ``cost effectiveness'' and
``reasonable cost,'' as those terms are defined in 43 CFR Sec. 11.14.
The proposed conditions are discussed below.
A. Primary Conditions
1. Oil Discharged or Hazardous Substance Released
In order to use the proposed NRDAM/GLE, trustee officials must
select one of the oils or hazardous substances included in the Chemical
Database. The Chemical Database includes 469 oils and hazardous
substances. Oils are categorized in the NRDAM/GLE technical document,
Volume III, Table III.2.4. The proposed rule allows trustee officials
to use the NRDAM/GLE so long as the discharged oil fits into one of the
listed categories. However, for hazardous substances, the proposed rule
currently provides that unless the released substance is specifically
listed in the NRDAM/GLE technical document, Volume III, Table III.2.1,
trustee officials may not use the NRDAM/GLE. The Department solicits
comment on whether use of a proxy hazardous substance should be
allowed, as is proposed for oil. The Department further solicits
comment on how appropriate proxies for hazardous substances might be
selected.
2. Magnitude of Discharge or Release
The proposed NRDAM/GLE is designed to calculate damages resulting
from minor discharges or releases. The proposed NRDAM/GLE uses discrete
particles to represent and track the distribution of a discharged oil
or a released hazardous substance on the water surface and in the water
column. There are a limited number of particles available for
computations. Long-term or large discharges or releases that result in
widespread distributions of discharged oil or released hazardous
substances are beyond the capacity of the proposed NRDAM/GLE.
Also, the proposed NRDAM/GLE assumes that injuries to biological
resources are small enough that the ecosystem structure is not
significantly changed. For example, the proposed NRDAM/GLE does not
address changes in predator-prey relationships or reproductive rates.
Moreover, the proposed NRDAM/GLE assumes that injuries to resources
that are used by humans are small enough that the marginal values of
those resources are not significantly affected. For example, the
proposed NRDAM/GLE assumes that the price of commercial harvest does
not change as a result of the discharge or release.
Therefore, if there has been a major discharge or release, type B
procedures should be used. The effect of a discharge or release will
depend on not only the quantity of oil or hazardous substance
discharged or released but also the characteristics of the discharged
oil or released hazardous substance and the nature of the area in which
the discharge or release occurred. For example, the discharge of a very
large quantity of oil, under certain circumstances, could constitute a
``minor'' discharge for purposes of using the NRDAM/GLE. On the other
hand, the release of a very small quantity of a highly toxic substance,
under certain circumstances, could warrant the use of type B procedures
instead of the NRDAM/GLE. Therefore, the Department has not proposed
any ``bright line'' standard for what constitutes a minor discharge or
release. Under the proposed rule, trustee officials would decide on a
case-by-case basis whether a discharge or release was minor.
3. Proximity of Discharge or Release to Water Surface
The proposed NRDAM/GLE does not model the fate of underwater
discharges or releases. Therefore, if the discharged oil or released
hazardous substance does not enter a Great Lakes environment at or near
the water surface, type B procedures should be used.
4. Distribution of Biological Resources
Any model is, by its nature, a simplification of real-world
phenomena. The proposed NRDAM/GLE is built upon thousands of grid
cells, each representing a discrete geographic area. Collectively these
cells constitute the Great Lakes environments. To enable modelling of
complex environmental variables and relationships, each of these cells
is assigned an ``average'' for features such as habitat type and
associated values such as biological abundance. These data are intended
to be representative of the area covered by the cell. Individual grid
cells are the most detailed level to which resource data are assigned.
Several features of the proposed NRDAM/GLE are included to more
accurately represent the natural environment. For example, different
cell sizes have been used to account for varying conditions and levels
of available natural resource information. Cell sizes in nearshore
areas are generally much smaller than those in offshore areas. This
enables the model to provide more detailed and accurate data for
nearshore areas that exhibit greater complexity, variation, and
abundance of biological resources. Similarly, data are included to vary
biological abundance by season.
Provision of spatial and temporal variation is limited, however, in
that resources are uniformly distributed within cells and among
contiguous cells with the same habitat designations, and biological
abundance is assumed to be uniform and constant within a season. This
may not always constitute an adequate representation of the affected
environment. Some small but important environments, such as
biologically productive wetlands, might be beyond the level of spatial
detail provided in the proposed NRDAM/GLE. Similarly, if a discharge or
release is expected to affect a population with a short-term increase
in density that is significantly different than the seasonal average,
type B procedures should be used.
The Department wants to ensure that the NRDAM/GLE reflects the most
accurate information available and encourages resource management
agencies to review the values associated with cells for which they have
expert knowledge. If, within the existing framework of the NRDAM/GLE,
data are available that more accurately represent environmental
features such as highly productive biological areas, the Department
solicits such data. Reviewers of the proposed NRDAM/GLE can identify
grid cells and habitat designations through the graphic user interface.
Reviewers may use the F5 function key on their computer keyboard to
identify the latitude and longitude for specific grid cells displayed
by the graphic user interface. Biological abundance figures contained
in the proposed Biological Database are provided in the text output of
a model application.
5. Nature of Currents
The proposed NRDAM/GLE uses two-dimensional, vertically averaged
values for currents in rivers and lakes. Three- dimensional effects,
such as reverse flows at depth, vertical shear profiles, upwelling, and
downwelling, are not considered. Therefore, if subsurface currents are
expected to significantly affect the fate of the discharged oil or
released hazardous substance and the subsurface currents are not
reasonably uniform with depth, type B procedures should be used.
B. Secondary Conditions
1. Presence of Other Discharges or Releases
The proposed NRDAM/GLE treats each discharge or release as a
discrete incident. Therefore, if trustee officials are dealing with the
cumulative effects of multiple discharges or releases, use of type B
procedures instead of or in addition to use of the NRDAM/GLE may be
warranted.
2. Effect of Response Actions
Under the proposed rule, trustee officials would be required to
supply information on the percentage of the discharged oil or released
hazardous substance that was removed during response actions. The
proposed NRDAM/GLE takes this information into consideration when
determining injury. However, the proposed NRDAM/GLE does not consider
any potential injury to natural resources caused by response actions,
such as use of chemical dispersants. The existing regulations provide
that natural resource damages include compensation for injuries caused
by reasonably unavoidable response actions. 43 CFR 11.15(a)(1).
Therefore, if response actions resulted in significant injury to
natural resources, use of type B procedures instead of or in addition
to use of the NRDAM/GLE may be warranted.
3. Types of Natural Resources Injured
The proposed NRDAM/GLE performs Injury Determination only for
biological resources. Therefore, if there have been significant
injuries to surface water, groundwater, air, or geologic resources, use
of type B procedures instead of or in addition to use of the NRDAM/GLE
may be warranted.
4. Pathway of Contamination
The proposed NRDAM/GLE calculates exposure of biological resources
to the discharged oil or released hazardous substance only through
surface water pathways. Therefore, if there has been significant
exposure of biological resources through air, groundwater, biological,
or geologic pathways, use of type B procedures instead of or in
addition to use of the NRDAM/GLE may be warranted.
5. Type of Biological Injuries
The proposed NRDAM/GLE determines and quantifies the following
injuries to biological resources: (1) Direct mortality resulting from
short-term exposure to the discharged oil or released hazardous
substance; (2) Direct loss of production resulting from short-term
exposure to the discharged oil or released hazardous substance; (3)
Indirect mortality resulting from food web losses; and (4) Indirect
loss of production resulting from food web losses. Therefore, if there
have been other significant injuries to biological resources, use of
type B procedures instead of or in addition to use of the NRDAM/GLE may
be warranted.
6. Nature of Compensable Values
The proposed NRDAM/GLE calculates compensable values for: (1) Lost
harvests of commercially exploited fish species; (2) Lost harvests of
commercially exploited furbearer species; (3) Lost harvests of
recreationally harvested fish species; (4) Lost harvests of
recreationally harvested waterfowl species; (5) Lost wildlife viewing
for trips originating within the immediate area; (6) Lost beach
visitation due to closure; and (7) Lost boating due to closure.
Therefore, if the public has lost other significant economic values as
a result of the discharge or release, use of type B procedures instead
of or in addition to use of the NRDAM/GLE may be warranted.
VI. Response to Comments
The Department received several comments in response to its
previous advance notices of proposed rulemaking. All of the comments
received were supportive of the efforts to develop a damage assessment
model for Great Lakes environments. The Department appreciates the time
and effort expended by the commenters.
Comment: Many of the commenters offered suggestions for model
development and provided or cited reference material for use in the
construction of the model and/or its databases.
Response: The materials provided and cited by the commenters were
reviewed and, where appropriate, combined with the materials located by
the Department's contractors through extensive literature searches. In
some instances the materials provided formed the basis for model
assumptions and algorithms.
Comment: Several commenters requested that the NRDAM/GLE calculate
the full costs of restoring injured natural resources.
Response: In response to comments received and consistent with Ohio
v. Interior and Colorado v. Interior, the proposed NRDAM/GLE has been
developed to include consideration of restoration costs in the
calculation of the damage amount.See Section IV.D.4 of this preamble,
and the NRDAM/GLE technical document, Volume I, Section 5.
Comment: Several commenters requested that the NRDAM/GLE address
specific types of discharges or releases or specific natural resource
effects or values. For example, commenters requested consideration of
multiple long-term discharges and releases, low-level chronic effects,
cultural or spiritual values, values of resources for subsistence and
medicinal uses, water use values for drinking, cooling, and industrial
purposes, and nonuse values.
Response: Section 301(c) of CERCLA specifically requires the
development of type A procedures for the performance of simplified
assessments using minimal field observations.This statutory requirement
necessitates an approach limited in scope. Due to modelling
constraints, the proposed NRDAM/GLE is limited in application to use in
cases resulting from single, short-term discharges or releases,and
calculates damages resulting only from mortality biological resources
due to short-term exposure and food web losses and certain use-related
losses. While the proposed NRDAM/GLE uses state-of-the-art procedures
for a model designed for use on readily available personal computers,
it is intended for use in determining the consequences of minor
discharges and releases.
Consideration of additional types of discharges and releases,
injuries, and compensable values is beyond the intended use of the
proposed NRDAM/GLE. The decisions on resources and values to be
included in the proposed NRDAM/GLE were made based on the availability
of data in a form that could be used in the model and produce reliable
results. During future biennial reviews, as more data become available,
the Department may consider the inclusion of additional resources and
values. Meanwhile, as noted in the preamble discussion and regulatory
language for the conditions regarding use of the NRDAM/GLE, discharges
or releases that affect resources or values that are not adequately
reflected in the proposed NRDAM/GLE should be addressed through the
application of type B procedures.
Comment: One commenter suggested that the model should have a clear
lower limit below which no damages are calculated and that the model
should recognize the potential for natural recovery and the possibility
of zero damages.
Response: The Department notes that many minor discharges and
releases will, and in fact do, result in zero ``damages'' (i.e.
monetary recoveries) in that they are undetected,unreported, or not
effectively measurable, or it simply is not cost effective to pursue
for damages even with simplified procedures such as the NRDAM/GLE.
However, the Department also notes that CERCLA does not identify a
lower limit below which no damages occur nor suggest that such a limit
exists.
A natural resource damage assessment must generate a damage claim
figure that is based upon the estimated injury to natural resources.
The NRDAM/GLE damage figures are scaled to the level of injury that the
model estimates to have occurred. Damages are commensurate with the
size of the discharge or release as affected by other variables such as
the characteristics of the oil or hazardous substance discharged or
released, the duration of the discharge or release event, the
prevailing weather conditions, and the nature of the affected
environment. This can range from zero or near-zero damages for the
smallest discharges and releases to millions of dollars for larger
discharges or releases of highly toxic substances in more sensitive
environments. As mandated by CERCLA, this reflects a compensatory
rather than punitive framework.
The proposed NRDAM/GLE does recognize the potential for natural
recovery in the determination of appropriate restoration activities. As
discussed in Section IV.D.4 of this preamble and in the NRDAM/GLE
technical document,Volume I, Section 5, the anticipated rate of natural
recovery has a direct bearing on the determination of a damage figure.
However, natural recovery does not nullify the injury sustained by the
environment nor absolve a responsible party of liability.
Comment: One commenter noted that the type A procedures should
require confirmation of injury. The commenter stated this was required
under the type B procedures.
Response: Unlike type B procedures, type A procedures are required
by CERCLA to involve minimal field observation, in order to facilitate
the damage assessment process and expedite the restoration of injured
natural resources where feasible. Confirmation of specific injuries may
require costly field studies, could delay restoration activities,and
might not prove conclusive. When applicable, executing this type A
procedure results in a reasonable estimation of damages based on the
projected injury to natural resources.Confirmation of injury would not
be cost effective for the minor discharges and releases that type A
procedures are designed to address. Imposing such requirements on
natural resource trustees defeats the purpose of developing and using
type A procedures.
Comment: One commenter called for the use of validation techniques,
such as sensitivity studies, to ensure that the model is consistent
with real-world observations.
Response: The Department agrees that validation is an important
factor in establishing the extent to which the NRDAM/GLE reflects
``real-world'' events. To this end, sensitivity studies were conducted
using a wide variety of spill scenarios. The studies systematically
analyzed the proposed NRDAM/GLE's sensitivity to variations in spill
size and season of spill for sinking substances and floating substances
for both rivers and lakes. The results indicate that the proposed
NRDAM/GLE behaves in a predictable manner with trends and variations
realistically reflecting what would be anticipated in real-world
situations.
Unfortunately, the Department is not aware of any specific case
studies in Great Lakes environments that provide sufficient detail to
validate the results of a discrete NRDAM/GLE application including the
results of the Physical Fates, Biological Effects, Restoration, and
Compensable Value Submodels. However, the proposed NRDAM/GLE has been
developed based on published literature and best available information
widely used in other instances for purposes of resource management and
regulatory and conservation programs. The application of this technical
literature for modelling has been frequently carried out and is also
published in the technical literature. The general modelling approach
is considered to be technically sound. Further, the Department solicits
information, such as case studies, that would be useful in the
validation of the NRDAM/GLE.
Comment: One commenter noted difficulties with the documentation
for the NRDAM/CME, which was issued in 1987, and called for the NRDAM/
GLE to be as ``user friendly'' as possible.
Response: The Department agrees with the comment and has made ease
of use a primary objective in the development of the NRDAM/GLE. The
proposed NRDAM/GLE is intended for use by individuals without a strong
technical background in computer applications or simulation modelling.
Although the proposed NRDAM/GLE can be used in text mode, a menu-driven
graphic user interface has been provided to facilitate both the process
for entering data and the analysis of results. Use of the NRDAM/GLE
should prove more intuitive as technical details on the inner workings
of the model and its databases become transparent at the user level. In
addition to being simpler to use, better documentation has also been
developed. Volume II of the NRDAM/GLE technical document includes a
separate, short user's manual describing simple procedures for
installing and using the model as well as a troubleshooting section for
common questions. Thorough technical documentation is still available
to examine the detailed components of the proposed NRDAM/GLE and its
assumptions. The Department welcomes comments on specific problems or
areas where the user interface and/or documentation is deemed
deficient.
Comment: One commenter questioned the selection of toxicity data
used in the NRDAM/CME and called for consistency between the NRDAM/GLE
and the water quality criteria established by the Environmental
Protection Agency (EPA) under the CWA.
Response: The Department's statutory mandate for the development of
the NRDAM/GLE is fundamentally different than EPA's responsibility for
development of water quality criteria. With an overriding goal of
protection of human health and the environment, EPA's criteria are
based on toxic concentrations which produce ``unacceptable effects.''
The proposed NRDAM/GLE, on the other hand, is intended to calculate
damages commensurate with anticipated effects on biota of
concentrations of lethal materials on natural resources as measured
against baseline conditions, regardless of whether these conditions are
above or below thresholds developed as part of EPA's water quality
criteria (e.g., ``unacceptable effects'' on the environment). The
mechanism developed for use in the proposed NRDAM/GLE allows for
scaling across a full range of impacts up to total kills in an area.
This is necessary in order to assign a dollar figure to whatever level
of injury is estimated to occur. The technical documentation for the
NRDAM/GLE articulates the specific criteria for the selection of
toxicity values. For further information see the NRDAM/GLE technical
document, Volume I, Section 4.2 and Section 7.9.
Comment: A commenter requested that, although not addressed in the
NRDAM/CME, the NRDAM/GLE should address the impact of the availability
of substitute sites, in that the ability to go to another nearby like
resource could reduce the value of the disrupted service flows
resulting from a spatially-confined resource injury.
Response: Since little information is available to evaluate
marginal impacts of discharged oil and released hazardous substances on
recreation, the proposed NRDAM/GLE calculates compensable values for
lost recreational use only for cases where closures occur. This
approach does assume that the recreational activity is eliminated
rather than displaced, and the Department acknowledges that this could
lead to an overestimation of damages for compensable values if
displacement is actually occurring. On the other hand, the proposed
NRDAM/GLE could underestimate such damages in cases where recreational
quality is affected, but no closure occurs, or where displacement
results in a diminished recreational experience through crowding or
increased expense. The relative magnitude and balance of these effects
would depend on the individual case. The inclusion of damages for
closures without accounting for substitution is the proposed NRDAM/
GLE's mechanism for approximating the net effect of the discharge or
release on all services provided by natural resources. For further
information, see the NRDAM/GLE technical document, Volume I, Section
6.1.
Comment: One commenter recommended modifying the approach used in
the NRDAM/CME to value recreational fishing using user-day values that
vary according to the species being sought.
Response: The proposed NRDAM/GLE, subject to the availability of
data, uses individual values for each significant fish species included
in the database. For more information, see the NRDAM/GLE technical
document, Volume I, Section 6.3.1.
Comment: One commenter urged selection of a discount rate
significantly lower than ten percent, since sediments polluted by non-
water-soluble compounds have such a long recovery period that the
discount rate becomes a key determinant of the damage estimate derived
from effects of such contamination.
Response: As noted in Section IV.D.5 of this preamble, the default
discount rate included in the proposed NRDAM/GLE is seven percent. The
Department is specifically soliciting comment on alternatives to
mandatory use of this rate, including other specific rates or allowance
of user-input of a discount rate specific to the circumstances of the
incident.
Comment: One commenter questioned the need for a Preassessment
Phase in every case of application of a type A procedure, and the
appropriateness of public input to processes in the Assessment Phase.
Response: Revision of the overall administrative process for
conducting an assessment, including the Preassessment Phase activities
and the opportunities for public comment, is beyond the scope of this
rulemaking. The Department will consider this comment during the
upcoming biennial review of the administrative process and type B
procedures.
Comment: Several commenters stated that additional type A
procedures should or are required to be developed for environments
other than coastal and marine environments and Great Lakes
environments. Such additional environments were characterized as
riverine, lake and freshwater wetland environments, and inland
environments. A commenter requested that type A procedures be developed
for all environments for which such regulations are technically
feasible.
Response: The Department is evaluating development of additional
type A procedures. The Department is considering several methodologies,
including development of additional computer models, as well as other
approaches, such as matrix, look-up table, compensation formula, and
other simplified procedures. The Department intends to convene a public
meeting no later than June 1, 1995, to discuss additional environments
for which type A procedures may be feasible. Colorado v. Interior
specifically upheld sequential development of type A procedures for
various environments. 880 F.2d at 486-90.
Authorship
The primary author of this rule is Mary C. Morton.
Additional authors include James F. Bennett and Stephen F.
Specht. David Rosenberger served as the contracting officer's
technical representative (COTR) for the development of the NRDAM/
GLE.
National Environmental Policy Act, Regulatory Flexibility Act,
Paperwork Reduction Act, and Executive Orders 12866, 12630, 12778, and
12612
The Department has determined that this rule does not constitute a
major Federal action significantly affecting the quality of the human
environment. Therefore, no further analysis pursuant to section
102(2)(C) of the National Environmental Policy Act (43 U.S.C.
4332(2)(C)) has been prepared.
The Department certifies that this rule will not have a significant
economic effect on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The rule provides
technical procedural guidance for the assessment of damages to natural
resources. It does not directly impose any additional cost. As the rule
applies to natural resource trustees, it is not expected to have an
effect on a substantial number of small entities.
It has been determined that this rule does not contain information
collection requirements that require approval by the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.).
This rule has been reviewed under Executive Order 12866. It has
been determined that this rule does not have takings implications under
Executive Order 12630. The Department has certified to the Office of
Management and Budget that this rule meets the applicable standards
provided in Sections 2(a) and 2(b)(2) of Executive Order 12778. It has
been determined that this rule does not have federalism implications
under Executive Order 12612.
List of Subjects in 43 CFR Part 11
Environmental protection, Fish, Great Lakes, Hazardous substances,
Incorporation by reference, Indian lands, National forests, National
parks, Natural resources, Oil pollution, Public lands, Recreation
areas, Wildlife, Wildlife refuges.
For the reasons set out in the preamble, Title 43, Subtitle A of
the Code of Federal Regulations is proposed to be amended as follows:
PART 11--NATURAL RESOURCE DAMAGE ASSESSMENTS
1. The authority citation for Part 11 continues to read as follows:
Authority 42 U.S.C. 9651(c), as amended.
Subpart A--Introduction
2. Section 11.15 is amended by revising paragraph (a)(1) to read as
follows:
Sec. 11.15 Actions against the responsible party for damages.
(a) * * *
(1) Damages as determined in accordance with this part and
calculated based on injuries occurring from the onset of the discharge
or release through the recovery period, less any mitigation of those
injuries by response actions taken or anticipated, plus any increase in
injuries that are reasonably unavoidable as a result of response
actions taken or anticipated;
* * * * *
3. Section 11.18 is amended by adding a new paragraph (a)(5) to
read as follows:
Sec. 11.18 Incorporation by reference
(a) * * *
(5) ``CERCLA Type A Natural Resource Damage Assessment Model for
Great Lakes Environments Technical Documentation,'' Volumes I-IV, dated
August 1994, prepared for the U.S. Department of the Interior by
Applied Science Associates, Inc., Narragansett, Rhode Island, and HBRS,
Inc., Madison, Wisconsin, available from the Office of Environmental
Policy and Compliance, Room 2340, Department of the Interior, 1849 C
Street, NW, Washington, DC 20240, telephone (202) 208-3301. Reference
is made to this publication in Secs. 11.33(c)(1)(i)(A) and 11.42(a),
(b), and (c)(2) of this part.
Subpart C--Assessment Plan Phase
4. Section 11.31 is amended by revising paragraphs (a)(1) and (b)
to read as follows:
Sec. 11.31 Assessment Plan--content
(a) General content and level of detail. (1) The Assessment Plan
shall identify and document the use of all of the type A and/or type B
procedures that will be performed.
* * * * *
(b) Deciding whether to use a type A procedure, type B procedures,
or a combination. The Assessment Plan shall include documentation of
the authorized official's decision whether to use a type A procedure,
type B procedures, or a combination. This determination shall be based
on the guidance provided in Sec. 11.33 of this part.
* * * * *
5. Section 11.32 is amended by adding a new paragraph (f)(3) to
read as follows:
Sec. 11.32 Assessment plan--development.
* * * * *
(f) * * *
(3) Paragraphs (f)(1) and (f)(2) of this section do not apply to
the use of the type A procedures provided for in subpart D of this
part.
6. Section 11.33 is amended by revising the heading of the section,
revising paragraph (a), and adding new paragraphs (c), (d), and (e) to
read as follows:
Sec. 11.33 Assessment Plan--deciding whether to use a type A
procedure, type B procedures, or a combination.
(a) General. The authorized official shall decide whether to use a
type A procedure provided for in subpart D of this part, type B
procedures provided for in subpart E of this part, or a combination of
type A and type B procedures.
* * * * *
(c) Great Lakes environments. (1) When a discharged oil or released
hazardous substance enters a Great Lakes environment, as that term is
defined in Sec. 11.42(b) of this part, the authorized official shall
determine whether the following conditions are met:
(i) Primary conditions--(A) The discharged oil or released
hazardous substance is identified in Table III.2.4 or Table III.2.1 of
Volume III of ``CERCLA Type A Natural Resource Damage Assessment Model
for Great Lakes Environments Technical Documentation,'' dated August
1994, U.S. Department of the Interior (incorporated by reference, see
Sec. 11.18);
(B) The discharge or release was minor;
(C) The discharged oil or released hazardous substance entered a
Great Lakes environment at or near the water surface;
(D) The spatial and temporal distribution of biological resources
in the area where the discharged oil or released hazardous substance
entered a Great Lakes environment is reasonably represented by the data
contained in the NRDAM/GLE, as defined in Sec. 11.42(b) of this part;
and
(E) Subsurface currents are either: not expected to significantly
affect the fate of the discharged oil or released hazardous substance;
or reasonably uniform with depth over the water column in the area
affected by the discharge or release.
(ii) Secondary conditions--(A) The discharge or release was a
single event;
(B) Response actions have not caused significant injury to natural
resources;
(C) The primary natural resources of concern affected by the
discharge or release are biological resources;
(D) Exposure of biological resources to the discharged oil or
released hazardous substance results primarily through surface water
pathways, as opposed to air, groundwater, biological, or geologic
pathways;
(E) The primary injuries to biological resources are one or more of
the following: direct mortality resulting from short-term exposure to
the discharged oil or released hazardous substance; direct loss of
production resulting from short-term exposure to the discharged oil or
released hazardous substance; indirect mortality resulting from food
web losses; and indirect loss of production resulting from food web
losses; and
(F) All significant compensable values, as defined in
Sec. 11.83(c)(1) of this part, result from one or more of the
following: lost harvests of commercially exploited fish species; lost
harvests of commercially exploited furbearer species; lost harvests of
recreationally harvested fish species; lost harvests of recreationally
harvested waterfowl species; lost wildlife viewing for trips
originating within the immediate area; lost beach visitation due to
closure; and lost boating due to closure.
(2) If the discharged oil or released hazardous substance entered a
Great Lakes environment, as that term is defined in Sec. 11.42(b) of
this part, and the authorized official determines that all of the
conditions listed in paragraphs (c)(1)(i) and (c)(1)(ii) of this
section are met, the authorized official shall use the type A procedure
provided for in Sec. 11.42 of this part to calculate all damages.
(3) If the discharged oil or released hazardous substance entered a
Great Lakes environment, as that term is defined in Sec. 11.42(b) of
this part, and the authorized official determines that all of the
conditions listed in paragraph (c)(1)(i) of this section are met and
that one or more of the conditions listed in paragraph (c)(1)(ii) of
this section are not met, the authorized official shall make a
determination whether to use the type A procedure provided for in
Sec. 11.42 of this part, the type B procedures provided for in subpart
E of this part, or a combination. This determination shall be based on
considerations of reasonable cost and cost effectiveness, as defined in
Sec. 11.14 of this part. The authorized official may use both type A
and type B procedures only if: the type B procedures are used to
calculate damages for types of natural resource injuries and
compensable values, as defined in Secs. 11.62 and 11.83(c)(1)
respectively of this part, that are not addressed by the type A
procedure; the type A procedure is used to calculate all other damages;
and the authorized official does not double count or the authorized
official uses techniques that allow any double counting to be estimated
and eliminated in the final damage calculation.
(4) If the discharged oil or released hazardous substance entered a
Great Lakes environment, as that term is defined in Sec. 11.42(b) of
this part, and the authorized official determines that one or more of
the conditions listed in paragraph (c)(1)(i) of this section are not
met, the authorized official shall use type B procedures to calculate
all damages.
(5) Notwithstanding paragraphs (c)(2) and (c)(3) of this section,
the authorized official shall use type B procedures rather than a type
A procedure whenever a potentially responsible party submits a written
request for use of type B procedures and agrees within a time frame
acceptable to the authorized official to advance all reasonable costs
of using type B procedures.
(d) Other environments. If the discharged oil or released hazardous
substance did not enter one of the environments discussed in this
section, the authorized official shall use type B procedures to
calculate all damages.
(e) Effect of selection of type B procedures. If, in accordance
with this section, the authorized official decides to use type B
procedures in lieu of a type A procedure, and the authorized official
cannot confirm exposure in accordance with Sec. 11.34 of this part, the
authorized official may not then re-select the type A procedure.
7. Section 11.34 is amended by adding a new paragraph (a)(3) to
read as follows:
Sec. 11.34 Assessment Plan--confirmation of exposure
(a) Requirement. * * *
(3) This section does not apply to the use of the type A procedures
provided for in subpart D of this part.
8. The heading of subpart D is revised to read as follows:
Subpart D--Type A Procedures
9. Section 11.40 is amended by revising the section heading,
revising paragraph (a), removing paragraph (b), redesignating paragraph
(c) as paragraph (b) and revising the heading of newly designated
paragraph (b) to read as follows:
Sec. 11.40 Type A procedures--general.
(a) Purpose. The purpose of a type A procedure is to provide a
standardized methodology for performing Injury Determination,
Quantification, and Damage Determination as part of a simplified
natural resource damage assessment.
(b) Assessment costs of using a type A procedure.* * *
10. A new Sec. 11.42 is added to read as follows:
Sec. 11.42 Great Lakes environments.
(a) General. The type A procedure for Great Lakes environments
shall be performed in accordance with this section. The procedure
requires the use of the Natural Resource Damage Assessment Model for
Great Lakes Environments, Version 1.31 (NRDAM/GLE), which is included
and explained in ``CERCLA Type A Natural Resource Damage Assessment
Model for Great Lakes Environments Technical Documentation,'' Volumes
I-IV, dated August 1994, U.S. Department of the Interior (incorporated
by reference, see Sec. 11.18). The NRDAM/GLE performs Injury
Determination, Quantification, and Damage Determination using the
incident-specific data collected by the authorized official pursuant to
paragraphs (c) and (d) of this section.
(b) Definitions. As used in this section the phrase:
CAS number means the Chemical Abstract Service Registry Number
assigned to a hazardous substance by the American Chemical Society,
Chemical Abstract Service, or the number assigned to an oil as
specified in Table III.2.1 and Table III.2.4 of Volume III of ``CERCLA
Type A Natural Resource Damage Assessment Model for Great Lakes
Environments Technical Documentation,'' dated August 1994, U.S.
Department of the Interior (incorporated by reference, see Sec. 11.18).
Closure of a boating area means the prohibition by an appropriate
agency of recreational boating in a specified area in a Great Lakes
environment within five kilometers of the shore due to a discharge of
oil or a release of a hazardous substance.
Closure of a Federal beach means the prohibition by an appropriate
agency of recreational or other public uses in a specified length of a
Federally managed public beach in a Great Lakes environment due to a
discharge of oil or a release of a hazardous substance.
Closure of a fishery means the prohibition by an appropriate agency
of commercial and recreational fishing in a specified area in a Great
Lakes environment due to a discharge of oil or a release of a hazardous
substance.
Closure of a mammal hunting or trapping area means the prohibition
by an appropriate agency of commercial and recreational hunting or
trapping of mammals in a specified area in a Great Lakes environment
due to a discharge of oil or a release of a hazardous substance.
Closure of a State beach means the prohibition by an appropriate
agency of recreational or other public uses in a specified length of a
State or municipally managed public beach in a Great Lakes environment
due to a discharge of oil or a release of a hazardous substance.
Closure of a waterfowl hunting area means the prohibition by an
appropriate agency of recreational hunting for waterfowl in a specified
area in a Great Lakes environment due to a discharge of oil or a
release of a hazardous substance.
Great Lakes environment means any area within Lake Superior, Lake
Michigan, Lake Huron, Lake Erie, Lake Ontario, Lake St. Clair, the St.
Mary River, the St. Clair River, the Detroit River, the Niagara River,
the St. Lawrence River downstream to approximately 45 deg. N, 75 deg.
W, or their contiguous wetlands or shorelines.
Implicit Price Deflator means the quarterly implicit price deflator
for the Gross National Product as provided in the Survey of Current
Business, published by the U.S. Department of Commerce/Bureau of
Economic Analysis, Washington, D.C., (202) 606-9900.
Nearshore fishery means a fishery in an open water area that is
less than 30 feet in depth or is in a connecting channel.
NRDAM/GLE means the Natural Resource Damage Assessment Model for
Great Lakes Environments, Version 1.31 (NRDAM/GLE), which is included
and explained in ``CERCLA Type A Natural Resource Damage Assessment
Model for Great Lakes Environments Technical Documentation,'' Volumes
I-IV, dated August 1994, U.S. Department of the Interior (incorporated
by reference, see Sec. 11.18). The NRDAM/GLE is a computer model
consisting of integrated physical fates, biological effects,
restoration, and economic valuation submodels and databases.
Offshore fishery means a fishery in an open water area that is 30
feet or more in depth.
Rocky beach means a beach 75 percent or more of which is covered by
bedrock, stones, or boulders.
Sandy beach means a beach less than 75 percent of which is covered
by bedrock, stones, or boulders.
Wetland fishery means a fishery that is not in an open water area.
(c) Required user-supplied data. (1) The authorized official shall
supply the incident-specific information described in paragraphs (c)(2)
through (c)(11) of this section for use as inputs to the NRDAM/GLE. The
authorized official shall document the information in the Assessment
Plan.
(2) The authorized official shall specify the CAS number of the
discharged oil or released hazardous substance provided in Table
III.2.4 or Table III.2.1 of Volume III of ``CERCLA Type A Natural
Resource Damage Assessment Model for the Great Lakes Environments
Technical Documentation,'' dated August 1994, U.S. Department of the
Interior (incorporated by reference, see Sec. 11.18). For incidents
involving the simultaneous discharge or release of two or more oils or
hazardous substances, or when a mixture of one or more oils or
hazardous substances has been discharged or released in a single
incident, the authorized official shall select one of the oils or
hazardous substances present in the simultaneous discharge or release,
or in the mixture.
(3) The authorized official shall specify the estimated total mass
of discharged oil or released hazardous substance that entered a Great
Lakes environment stated in tonnes, barrels, gallons, liters, pounds,
or kilograms. For incidents involving the simultaneous discharge or
release of two or more oils or hazardous substances, or when a mixture
of one or more oils or hazardous substances has been discharged or
released in a single incident, the authorized official shall specify
only the mass of the oil or hazardous substance selected under
paragraph (c)(2) of this section.
(4) The authorized official shall specify the estimated length of
time over which the discharged oil or released hazardous substance
entered a Great Lakes environment stated in hours.
(5) The authorized official shall specify the year, month, day, and
estimated hour when the discharged oil or released hazardous substance
first entered a Great Lakes environment.
(6) The authorized official shall specify the latitude and
longitude where the discharged oil or released hazardous substance
entered a Great Lakes environment.
(7) The authorized official shall specify the estimated wind
velocity and direction at the point where the discharged oil or
released hazardous substance entered a Great Lakes environment during
the 30-day period beginning 24 hours before the discharged oil or
released hazardous substance entered a Great Lakes environment. The
authorized official shall specify at least one wind velocity stated in
knots and the corresponding wind direction stated in the degree angle
of the wind's origin.
(8) The authorized official shall specify whether response actions
to remove the discharged oil or released hazardous substance from the
water surface, bottom sediments, or shoreline have been conducted. If
response actions to remove the discharged oil or released hazardous
substance were conducted, the authorized official shall specify the
percentage of the discharged oil or released hazardous substance that
was removed from the water surface, bottom sediments, and shoreline as
a result of the response actions; and the number of days after the
discharged oil or released hazardous substance entered a Great Lakes
environment that the removal began and ended.
(9) The authorized official shall specify whether there were any
closures of boating areas, Federal beaches, State beaches, fisheries,
mammal hunting or trapping areas, or waterfowl hunting areas. If there
were any closures and damages for such closures are to be calculated,
the authorized official shall establish the following information and
shall include in the Assessment Plan documentation that the closure
resulted from the discharge or release being investigated:
(i) For closure of a boating area, the authorized official shall
specify: The area closed stated in square kilometers; the number of
weekend days of closure stated by calendar month; and the number of
weekday days of closure stated by calendar month.
(ii) For closure of a Federal beach, the authorized official shall
specify: The length closed stated in meters; the number of days of
closure stated by calendar month; and whether the closed area was a
rocky or sandy beach.
(iii) For closure of a State beach, the authorized official shall
specify: The length closed stated in meters; the number of days of
closure stated by calendar month; and whether the closed area was a
rocky or sandy beach.
(iv) For closure of a fishery, the authorized official shall
specify: the area closed stated in square kilometers; the number of
days of closure; and whether the area closed was an offshore,
nearshore, or wetland fishery.
(v) For closure of a mammal hunting or trapping area, the
authorized official shall specify: the area closed stated in square
kilometers; and the number of days of closure.
(vi) For closure of a waterfowl hunting area, the authorized
official shall specify: the area closed stated in square kilometers;
and the number of days of closure.
(10) The authorized official shall specify the Implicit Price
Deflator for the quarter during which the discharged oil or released
hazardous substance entered a Great Lakes environment.
(11) The authorized official shall specify whether the NRDAM/GLE
should account for the effects of ice cover.
(d) Additional user-supplied data. (1) The authorized official may
collect any of the additional incident-specific information described
in paragraphs (d)(2) through (d)(5) of this section for use as inputs
to the NRDAM/GLE if: the authorized official estimates that conditions
where the discharged oil or released hazardous substance entered a
Great Lakes environment varied significantly from the typical
conditions for the time of year in which the discharge or release
entered a Great Lakes environment; and the incident-specific
information can be collected consistent with the requirements of
reasonable cost and cost effectiveness, as defined in Sec. 11.14 of
this part. If the authorized official makes a determination to collect
any of the incident-specific information described in paragraphs (d)(2)
through (d)(5) of this section, the rationale for the determination and
the information collected shall be documented in the Assessment Plan.
If the information is not collected, the NRDAM/GLE will supply default
parameters.
(2) Subject to paragraph (d)(1) of this section, the authorized
official may specify the estimated water temperature stated in degrees
Celsius at the time and point where the discharged oil or released
hazardous substance entered a Great Lakes environment.
(3) Subject to paragraph (d)(1) of this section, the authorized
official may specify the estimated total suspended sediment
concentration stated in milligrams per liter at the time and point
where the discharged oil or released hazardous substance entered a
Great Lakes environment.
(4) Subject to paragraph (d)(1) of this section, the authorized
official may specify the estimated mean settling velocity of suspended
solids stated in meters per day at the time and point where the
discharged oil or released hazardous substance entered a Great Lakes
environment.
(5) Subject to paragraph (d)(1) of this section, the authorized
official may specify the estimated air temperature stated in degrees
Celsius at the time and point where the discharged oil or released
hazardous substance entered a Great Lakes environment.
(e) Applying the NRDAM/GLE. The authorized official shall apply the
NRDAM/GLE using the incident-specific data supplied pursuant to
paragraphs (c) and (d) of this section.
(f) Report of Assessment. After applying the NRDAM/GLE, the
authorized official shall prepare a Report of Assessment, as described
in Sec. 11.90 of this part.
Subpart F--Post-Assessment Phase
11. Section 11.90 is amended by revising paragraphs (a) and (b) and
revising the first sentence of paragraph (c) as follows:
Sec. 11.90 Post-assessment phase--report of assessment
(a) Requirement. At the conclusion of an assessment, the authorized
official shall prepare a Report of Assessment that shall consist of the
Preassessment Screen Determination, the Assessment Plan, and the
information specified in paragraphs (b) and (c) of this section as
applicable.
(b) Type A procedures. When the authorized official has used a type
A procedure in accordance with subpart D of this part, the Report of
Assessment shall include the following information:
(1) When the type A procedure for coastal and marine environments
provided for in Sec. 11.41 of this part is used, the Report of
Assessment shall include the printed assessment report from the
application(s) of the NRDAM/CME, as that term is defined in
Sec. 11.41(b) of this part.
(2) When the type A procedure for Great Lakes environments provided
for in Sec. 11.42 of this part is used, the Report of Assessment shall
include the printed assessment report from the application(s) of the
NRDAM/GLE, as that term is defined in Sec. 11.42(b) of this part.
(c) Type B procedures. When the authorized official has used type B
procedures in accordance with subpart E of this part, the Report of
Assessment shall include all documentation supporting the
determinations required in the Injury Determination phase, the
Quantification phase, and the Damage Determination phase, and
specifically including the test results of any and all methodologies
performed in these phases. * * *
12. Section 11.91 is amended by revising the first sentence of
paragraph (a), removing the heading of paragraph (c), redesignating
paragraph (c) as paragraph (c)(1), adding a new heading to paragraph
(c), and adding a new paragraph (c)(2) to read as follows:
Sec. 11.91 Post-assessment phase--demand.
(a) Requirement and content. At the conclusion of the assessment,
the authorized official shall present to the potentially responsible
party a demand in writing for a sum certain, representing the damages
determined in accordance with this part and the reasonable cost of the
assessment, adjusted if necessary in accordance with Sec. 11.92(b) of
this part, delivered in such a manner as will establish the date of
receipt. * * *
* * * * *
(c) Judicial review. * * *
(2) Judicial review of the damage assessment determinations
performed by an authorized official in accordance with this part using
one of the type A procedures provided for in subpart D of this part
shall be limited to the authorized official's determination under
Sec. 11.33 of this part to use the type A procedure and the incident-
specific data supplied by the authorized official for use in the type A
procedure. When a Federal or State authorized official performs an
assessment in accordance with this part using a type A procedure, the
rebuttable presumption provided in paragraph (c)(1) of this section
shall extend to the authorized official's determination to use the type
A procedure and to the incident-specific data collected by the
authorized official.
* * * * *
Dated: August 2, 1994.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 94-19163 Filed 8-5-94; 8:45 am]
BILLING CODE 4310-RG-P
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