Natural Resource Damage Assessments
Federal RegisterDec 8, 1994
Ask Donna
What actually matters in this document.
Text
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 11
RIN 1090-AA23
Natural Resource Damage Assessments
AGENCY: Department of the Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
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 revise the existing
type A procedure for assessing natural resource damages in coastal and
marine environments in compliance with a court order and a statutory
biennial review requirement. The proposed procedure incorporates a
computer model called the Natural Resource Damage Assessment Model for
Coastal and Marine Environments (NRDAM/CME) Version 2.2, which would
replace the NRDAM/CME Version 1.2 that is currently incorporated by
reference into the regulations.
DATES: Comments will be accepted through February 6, 1995.
ADDRESSES: Comments should be sent in duplicate to the Office of
Environmental Policy and Compliance, ATTN: NRDA Rule-CME, 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/
CME Version 2.2 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 Data
B. Regulatory Status of Type A Procedures
IV. NRDAM/CME Version 2.2
A. Overview
B. User-Supplied Data Inputs
C. Geographic Information System
D. Submodels
V. Conditions Regarding Use of the NRDAM/CME Version 2.2
A. Primary Conditions
B. Secondary Conditions
VI. Response to Comments
A. General
B. Physical Fates
C. Biological Effects
D. Restoration
E. Economic Issues
F. Tribal Issues
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 sec. 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. CERCLA defines ``State'' to include:
The District of Columbia, the Commonwealth of Puerto Rico, Guam,
American Samoa, the United States Virgin Islands, the Commonwealth
of the Northern Marianas, and any other territory or possession over
which the United States has jurisdiction. CERCLA sec. 101(27).
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 sec. 301(c). The regulations are to
identify the ``best available'' procedures for assessing natural
resource damages. CERCLA sec. 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 sec. 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 regulations must be
reviewed, and revised as appropriate, every two years. CERCLA sec.
301(c)(3). 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). The authority to sue
for natural resource damages resulting from discharges of oil into
navigable waters was extended to not only Federal and State natural
resource trustees but also Indian tribe and foreign natural resource
trustees. OPA also 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 obtain a rebuttable presumption for natural
resource damage assessments 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); and 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 procedures 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
Department's regulations cover the entire process that trustee
officials need to follow if they file a lawsuit and expect to obtain a
rebuttable presumption. However, trustee officials have the authority
to settle their damage claims at any time during the administrative
process.
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 (NRDAM/CME) Version 1.2, to perform Injury
Determination, Quantification, and Damage Determination for minor
discharges or releases in coastal and marine environments. This
proposed rule would revise the type A procedure for coastal and marine
environments and replace the NRDAM/CME Version 1.2 with the NRDAM/CME
Version 2.2. Until a final rule revising the type A procedure for
coastal and marine environments is promulgated, the NRDAM/CME Version
1.2 remains the version incorporated by reference into the regulations.
For more information on use of a type A procedure during the Assessment
Phase, see subpart D of 43 CFR part 11. Also, the Department recently
published a proposed rule that would establish an additional type A
procedure for Great Lakes environments. 59 FR 40319 (Aug. 8, 1994).
When a type A procedure is not applicable, trustee officials use
type B procedures instead of a type A procedure. In some cases, trustee
officials may also use type B procedures to supplement damages
calculated through use of an applicable 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
requirements 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 March 20, 1987, the Department published a final rule
establishing a type A procedure for coastal and marine environments
that incorporated the NRDAM/CME Version 1.1. 52 FR 9041. On March 25,
1988, the Department published technical corrections to the NRDAM/CME
Version 1.1, replacing it with NRDAM/CME Version 1.2. 53 FR 9769. On
February 1, 1989, the Department published an advance notice of
proposed rulemaking announcing the commencement of the statutorily
required biennial review of the type A procedure for coastal and marine
environments. 54 FR 5093. The advance notice solicited comment on
whether and how the type A procedure should be revised to reflect
experience with use of the NRDAM/CME Version 1.2.
On July 14, 1989, the U.S. Court of Appeals for the District of
Columbia Circuit issued two decisions that affected the biennial review
of the type A procedure for coastal and marine 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 also remanded the NRDAM/CME Version 1.2, 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 Version 1.2 calculates damages based solely on lost public
use of the injured resources.
On September 22, 1989, the Department published an advance notice
of proposed rulemaking announcing its intent to revise the type A
procedure for coastal and marine environments in compliance with Ohio
v. Interior and Colorado v. Interior during the ongoing biennial
review. 54 FR 39013 The Department solicited comment on means of
incorporating restoration costs and all reliably calculated lost public
economic values into the revised NRDAM/CME. Id.
D. Related Rulemakings
There are several other ongoing natural resource damage assessment
rulemakings.
1. CERCLA
On June 2, 1988, the Department published an advance notice of
proposed rulemaking soliciting comment on the development of a type A
procedure for Great Lakes environments. 53 FR 20143. On September 22,
1989, the Department announced its intent to modify the development of
the type A procedure for Great Lakes environments to conform with Ohio
v. Interior and Colorado v. Interior. 54 FR 39015. The Department
published a notice of proposed rulemaking for the type A procedure for
Great Lakes environments on August 8, 1994. 59 FR 40319. 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 the proposed
NRDAM/GLE was used to develop the NRDAM/CME Version 2.2.
The August 8, 1994, Federal Register notice also contained two
proposed amendments to the natural resource damage assessment
regulations that would affect all type A procedures. The Department
proposed 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. The comment period on the August 8, 1994, proposed rule has
been extended through February 6, 1995. 59 FR 54877 (Nov. 2, 1994).
The Department plans to develop additional type A procedures, as
appropriate, in future rulemakings. 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.
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 closed on October 7, 1994. See 59 FR 32175
(June 22, 1994).
CERCLA mandates biennial review, and revision as appropriate, of
the Department's natural resource damage assessment regulations. On
October 19, 1994, the Department published an advance notice of
proposed rulemaking to begin the biennial review of the administrative
process and type B procedures. 59 FR 52749.
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. The Department understands that NOAA is
likely to allow for use of the revised NRDAM/CME under its OPA
regulations after the Department publishes a final rule. 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/CME Version 2.2
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 simply
revise one of the procedures available for use during the Assessment
Phase. The proposed procedure would be available only for oil
discharges or hazardous substance releases that occur in coastal or
marine environments.
A. Preassessment Phase
During the Preassessment Phase of an assessment incorporating use
of the proposed NRDAM/CME Version 2.2, 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/CME
Version 2.2 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/CME Version 2.2, as well as the
incident-specific information they intend to use as data inputs to the
NRDAM/CME Version 2.2. 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/CME Version 2.2
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/CME Version
2.2. Under the proposed rule, whenever a discharge or release occurred
in a coastal or marine environment, trustee officials would determine
if the conditions were met. A coastal or marine environment is defined
as any area represented by the geographic data contained in the NRDAM/
CME Version 2.2. The geographic scope of the NRDAM/CME Version 2.2 is
discussed in Section IV.C of this preamble. Trustee officials would
include in the Assessment Plan their determinations of whether the
conditions regarding use of the NRDAM/CME Version 2.2 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 needed 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 Sec. 11.33(b) of the proposed rule, the conditions regarding
use of the NRDAM/CME Version 2.2 fall into two categories: Primary
conditions and secondary conditions. The absence of any primary
condition indicates that use of the NRDAM/CME Version 2.2 is
inappropriate. The absence of any secondary condition does not indicate
that use of the NRDAM/CME Version 2.2 is inappropriate but does
indicate that the NRDAM/CME Version 2.2 might not address all
significant 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/CME
Version 2.2 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 Version 1.2 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 Version 1.2, 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/CME Version 2.2, type B
procedures, or a combination, and obtain a rebuttable presumption. Use
of combined type A and type B procedures would be subject to the
limitations discussed in Section II.B.2 of this preamble. 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/CME Version 2.2,
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/CME Version
2.2 was appropriate, whenever a PRP submitted a written request for use
of type B procedures and advanced all reasonable costs of using type B
procedures within a timeframe acceptable to the trustee officials.
Section V of this preamble contains additional information on the
conditions regarding use of the NRDAM/CME Version 2.2.
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 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.
In the August 8, 1994, Federal Register notice concerning the type
A procedure for Great Lakes environments, the Department proposed 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. 59 FR
40333. The August 8, 1994, Federal Register notice contained new
proposed standards for determining when to use type B procedures to
supplement damages calculated by the NRDAM/GLE. Today's proposed rule
would establish similar standards for determining when to use type B
procedures to supplement damages calculated by the NRDAM/CME Version
2.2.
If all primary conditions regarding use of the NRDAM/CME Version
2.2 were met but one or more secondary conditions were not met, then
the NRDAM/CME Version 2.2 could still be used but might not address all
significant types of natural resource injuries and lost public economic
values. In such cases, trustee officials would have the discretion to
use the NRDAM/CME Version 2.2 to calculate all damages. However,
trustee officials would also have the option of using type B procedures
to supplement the damages calculated by the NRDAM/CME Version 2.2 and
could obtain a rebuttable presumption for both portions of the
assessment. Specifically, trustee officials could 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/CME Version
2.2 and use the NRDAM/CME Version 2.2 to calculate all other damages,
provided there were no double recovery of damages.
Trustee officials who used type B procedures in addition to the
NRDAM/CME Version 2.2 would obtain a rebuttable presumption only if the
type B procedures were used to supplement the damages calculated by the
NRDAM/CME Version 2.2. Trustee officials could not selectively
substitute specific categories of damages calculated by the NRDAM/CME
Version 2.2 with damages calculated through use of type B procedures
and retain the rebuttable presumption. However, trustee officials could
calculate all damages through use of type B procedures, and obtain a
rebuttable presumption, provided that the type B procedures were cost
effective and could be performed at a reasonable cost. A trustee
official's decision whether to use the NRDAM/CME Version 2.2, 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/CME Version 2.2 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/CME Version 2.2 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/CME Version 2.2 to calculate
all other damages, provided there were no double recovery of damages.
Trustee officials who used both the NRDAM/CME Version 2.2 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/CME Version 2.2, how they intended to apply the type B
procedures, and how they intended to ensure no double recovery. During
the Assessment Phase, the NRDAM/CME Version 2.2 would be applied in
compliance with Sec. 11.41 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/CME Version 2.2
and completing the type B procedures, trustee officials could prepare a
single Report of Assessment detailing the results of both the NRDAM/CME
Version 2.2 and the type B procedures.
3. User-Supplied Data Inputs
If trustee officials decided to use the NRDAM/CME Version 2.2, the
Assessment Plan would also document the incident-specific information
that they intend to use as data inputs to the NRDAM/CME Version 2.2.
Under the proposed rule, the NRDAM/CME Version 2.2 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/CME Version
2.2.
Section IV.B of this preamble contains additional information on
user-supplied data inputs to the NRDAM/CME Version 2.2.
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/CME Version 2.2, 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/CME Version 2.2.
The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 performs Quantification through
the Biological Effects Submodel. The NRDAM/CME Version 2.2 databases
contain information about the baseline condition of natural resources
in coastal and marine environments. The Biological Effects Submodel
quantifies the change in baseline conditions as a result of the
discharge or release.
The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 adds compensable values and restoration costs to
produce a damage figure.
Section IV.D of this preamble contains additional information on
how the NRDAM/CME Version 2.2 performs Injury Determination,
Quantification, and Damage Determination.
D. Post-Assessment Phase
After using the NRDAM/CME Version 2.2, 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. These activities
include preparation of a Report of Assessment. The proposed NRDAM/CME
Version 2.2 provides a printed assessment report that summarizes the
computations performed to derive the damage amount. 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/CME Version 2.2 and documentation of the
incident-specific data inputs to the NRDAM/CME Version 2.2; and the
printed assessment report from the NRDAM/CME Version 2.2.
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/CME Version 2.2, 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/CME Version 2.2; and the cost of using the NRDAM/CME Version 2.2.
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/CME
Version 2.2, as well as the Preassessment Phase, Assessment Plan Phase,
and Post-Assessment Phase requirements 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/CME Version 2.2 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 Data
CERCLA mandates that the type A procedures constitute 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 data.
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
sec. 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/CME Version 2.2 incorporated
by reference into the natural resource damage assessment regulations.
Thus, once a revised type A procedure for coastal and marine
environments is promulgated as a final rule, trustee officials will
have to use the exact version of the NRDAM/CME incorporated into 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 coastal and marine 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 sec. 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 from the date of promulgation rather than in a particular
natural resource damage case.
For example, once the revised type A procedure for coastal and
marine environments is promulgated as a final rule, a PRP in a natural
resource damage case where the revised NRDAM/CME is used in accordance
with the Department's regulations will not be able to challenge the
revised NRDAM/CME submodels or databases. A PRP will only be allowed to
challenge the trustee officials' decision to use the revised NRDAM/CME
and the trustee officials' incident-specific data inputs to the revised
NRDAM/CME. Federal and State trustee officials who comply with the
standards governing use of the revised NRDAM/CME, as well as the
Preassessment Phase, Assessment Plan Phase, and Post-Assessment Phase
requirements set forth in the regulations, will obtain a rebuttable
presumption of correctness for their decision to use the revised NRDAM/
CME and for their incident-specific data inputs. PRPs who wish to avoid
being bound by the revised NRDAM/CME submodels and databases have the
option of funding the performance of type B procedures.
In the August 8, 1994, notice of proposed rulemaking concerning the
type A procedure for Great Lakes environments, the Department has
proposed to make explicit in the regulations the statutory limitation
on judicial review of assessments incorporating type A procedures. 59
FR 40337.
IV. NRDAM/CME Version 2.2
A. Overview
The proposed NRDAM/CME Version 2.2 consists of integrated submodels
and databases that calculate natural resource damages based on certain
types of estimated restoration costs and economic values lost to the
public pending reestablishment of baseline conditions. The proposed
NRDAM/CME Version 2.2 is a complex computer model; however, it is
designed for use by relatively untrained individuals. The proposed
NRDAM/CME Version 2.2 is available on diskettes and can be used on most
IBM-compatible personal computers.
The proposed NRDAM/CME Version 2.2 was developed under contract to
the Department by Applied Science Associates, Inc., Narragansett, Rhode
Island, A.T. Kearney, Inc., Alexandria, Virginia, and HBRS, Inc.,
Madison, Wisconsin. Intensive efforts were made to ensure that the
NRDAM/CME Version 2.2 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/CME Version 2.2 can be
found in the six-volume ``CERCLA Type A Natural Resource Damage
Assessment Model for Coastal and Marine Environments Technical
Documentation,'' dated October 1994, prepared for the Department by
Applied Science Associates, Inc., A.T. Kearney, Inc., and HBRS, Inc.
(NRDAM/CME Version 2.2 technical document). Volume I of the NRDAM/CME
Version 2.2 technical document discusses the content and derivation of
the NRDAM/CME Version 2.2 submodels and databases. Volume II is a
user's manual. Volume III is a compilation of the chemical and
environmental databases used by the proposed NRDAM/CME Version 2.2.
Volume IV contains the biological databases on the life histories,
abundances, and trophic level production rates used by the proposed
NRDAM/CME Version 2.2. Volume V is a compilation of the compensable
values and restoration costs used by the NRDAM/CME Version 2.2. Volume
VI is a listing of the active source code for the proposed NRDAM/CME
Version 2.2. Under the proposed rule, the NRDAM/CME Version 2.2 and the
NRDAM/CME Version 2.2 technical document would be incorporated by
reference into the regulations.
Computer diskettes containing the proposed NRDAM/CME Version 2.2
and the NRDAM/CME Version 2.2 technical document can be obtained for
review and comment from the address given at the beginning of this
notice. The proposed NRDAM/CME Version 2.2 is available only on 3.5
inch double- sided, high density diskettes. The model and databases are
contained on four diskettes. Three companion location disks for the
East Coast (including the Gulf of Mexico), West Coast, Alaska, Pacific
Islands (including Hawaii), and the Caribbean provide the geographic
data required by the NRDAM/CME Version 2.2. The NRDAM/CME Version 2.2
technical document is available on two 3.5 inch double-sided, high
density diskettes formatted under WordPerfect 5.1. The
Department solicits comment on all aspects of the proposed NRDAM/CME
Version 2.2, the proposed NRDAM/CME Version 2.2 technical document, and
the proposed rule language concerning use of the NRDAM/CME Version 2.2.
The proposed NRDAM/CME Version 2.2 is supplied with a menu-driven
graphic display to assist users. The minimum computer configuration
required to use the proposed NRDAM/CME Version 2.2 is:
IBM-compatible personal computer using MS-
DOS 3.1 or higher;
80386 processor or better with math co-processor;
1.44 megabyte 3.5 inch floppy disk drive;
640 kilobytes of RAM with 540 kilobytes available;
Hard disk with 50 megabytes of available space;
VGA monitor; and
Microsoft-compatible mouse.
For further information on installation of the proposed NRDAM/CME
Version 2.2, see the NRDAM/CME Version 2.2 technical document, Volume
II, Section 2.
The Department has endeavored to assure that the proposed NRDAM/CME
Version 2.2 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/CME Version 2.2 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 files may
be found in the directories:
\NRDAMCME\LOC__DATA\...\CASES\*.DAT............... (ASCII file)
\NRDAMCME\LOC__DATA\...\MODELOUT\*.CLS............ (ASCII file)
\NRDAMCME\LOC__DATA\...\CURRENTS\*.DIR............ (binary file)
\NRDAMCME\LOC__DATA\...\WINDS\*.WND............... (binary file)
\NRDAMCME\LOC__DATA\...\RESPONSE\*.LRF............ (ASCII file)
where ``* * *'' is the subdirectory location name corresponding to
general geographic subdivision locations (e.g., E__COAST, W__COAST).
B. User-Supplied Data Inputs
Most of the data used by the proposed NRDAM/CME Version 2.2 to
determine injury and damages are included in the model databases.
However, the proposed rule would require trustee officials to provide
two categories of incident-specific data inputs to the proposed NRDAM/
CME Version 2.2. One category of data inputs would include information
that trustee officials would be required to provide in order to use the
proposed NRDAM/CME Version 2.2. 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 the water;
Length of time over which the discharged oil or released
hazardous substance entered the water;
Date and time that the discharged oil or released
hazardous substance began to enter the water;
Latitude and longitude where the discharged oil or
released hazardous substance entered the water;
Wind velocity and direction during the 30-day period
starting 24 hours before the discharged oil or released hazardous
substance entered the water;
Velocity and direction of background and tidal currents
over the area affected by the discharge or release at the time the
discharged oil or released hazardous substance entered the water;
Time at which high tide occurred on the date that the
discharged oil or released hazardous substance entered the water;
Tidal range at the time and point where the discharged oil
or released hazardous substance entered the water;
Whether the tide in the area affected by the discharge or
release is diurnal (i.e. completes one full cycle every day) or semi-
diurnal (i.e. completes two full cycles every day);
Amount of the discharged oil or released hazardous
substance that was removed from the water surface and shoreline during
response actions and the location and time frame of the removal;
Closures of boating areas, Federal public beaches, State
(including municipal) public beaches, fisheries, shellfish harvest
areas, furbearer hunting or trapping areas, and waterfowl hunting areas
due to the discharge or release; and
Gross National Product Implicit Price Deflator (base year
1987) for the quarter in which the discharge or release occurred.
Also, for discharges or releases in Alaska, the Department is
proposing to require trustee officials to determine whether the
proposed NRDAM/CME Version 2.2 should consider the effects of ice
cover. If trustee officials determine that ice cover effects should be
considered, the proposed NRDAM/CME Version 2.2 supplies data on average
ice cover for the relevant time period and geographical area. The
Department solicits comment on whether the NRDAM/CME Version 2.2 should
always consider the effects of ice cover in Alaska.
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 coastal or marine environments.
The proposed rule provides that discharged oils and released
hazardous substances must be identified by Chemical Abstract Service
(CAS) Registry Number. Hazardous substances are assigned CAS numbers by
the American Chemical Society, Chemical Abstract Service. The hazardous
substances included in the NRDAM/CME Version 2.2, along with their CAS
numbers, are listed in the NRDAM/CME Version 2.2 technical document,
Volume III, Table III.2.1. Oils are divided into categories and each
category is assigned a dummy CAS number. The oil categories are
identified in the NRDAM/CME Version 2.2 technical document, Volume III,
Table III.2.4. The Department solicits comment on whether trustee
officials should be allowed to use the NRDAM/CME Version 2.2 for oils
and hazardous substances not listed in Table III.2.1 or II.2.4 through
selection of a proxy oil or hazardous substance. The Department further
solicits comment on how appropriate proxies for oils and hazardous
substances might be selected.
If a mixture has been discharged or released, trustee officials
must select one oil or one hazardous substance in the mixture. The
volume used as input to the NRDAM/CME Version 2.2 would then be the
quantity of the selected oil or hazardous substance contained in the
mixture, rather than the volume of the entire mixture.
The proposed NRDAM/CME Version 2.2 permits the user to supply data
concerning the amount and duration of the discharge or release that
identify two distinct stages of a spill event. When modelling such a
spill event, the user specifies the amount of the oil or hazardous
substance discharged or released during the first stage of the spill
and specifies the length of time (in hours) over which the first stage
occurs. The user also enters amount and duration data for the second
stage of the spill. The model begins the duration period for the second
stage of the spill upon completion of the first stage. Users may omit
this staging feature by entering zeroes for the second stage of the
spill event.
Under the proposed rule, trustee officials would be required to
specify a currents grid upon which background and tidal currents are
characterized. The currents grid is defined by the northern- and
southern-most latitude, and the eastern- and western-most longitude
encompassing the area affected by the discharge or release. The
proposed NRDAM/CME Version 2.2 subsequently establishes a grid of 100
grid cells per side within the defined boundaries.
The proposed rule would require trustee officials to enter at least
one set of data for both the background and tidal currents that
suitably represents conditions existing in the defined gridded area
affected by the discharge or release. Background currents of
significance are those represented by the Gulf Stream, California
current, Florida current, and Alaska current. Major rivers such as the
Hudson River and Mississippi River are also sources of significant
background current. After the user enters data on background and tidal
currents for one or more grid cells, the proposed NRDAM/CME Version 2.2
determines the data values for the remaining grid cells.
The proposed NRDAM/CME Version 2.2 user interface and the computer
mouse allow for simplified entry of the currents grid and background
and tidal currents. The proposed NRDAM/CME Version 2.2 technical
document, Volume II, Section 4 explains how to enter data on currents
and how to view the data once entered. Volume II also describes types
of currents and lists various sources of data on currents. Sources of
data include: The National Ocean Service, Department of Commerce,
Riverdale, MD, (301) 436-6990, which publishes tidal tables, tidal
current tables, regional tide and tidal current tables, tidal
circulations and water levels forecast tables, tidal current charts,
and tidal current diagrams; and, Eldridge Tide and Pilot Book, Robert
Eldridge White, Publisher, 39 Commercial Wharf, Boston, MA 02110, (617)
742-3045. The NRDAM/CME Version 2.2 technical document, Volume II
provides additional sources of data for background and tidal currents.
Information on wind conditions may be available from local sources
or from the National Climatic Data Center, Asheville, NC, (704) 271-
4800.
When specifying data on the volume of the discharged oil or
released hazardous substance removed during response actions, trustee
officials must indicate the location and time frame of the removal.
Situations may arise in which response actions were actually taken at a
particular location over a particular time frame; however, according to
the proposed NRDAM/CME Version 2.2, the discharged oil or released
hazardous substance had not yet reached that location at that time. In
such situations, if the user entered the actual location and timing of
the response actions, the proposed NRDAM/CME Version 2.2 would
nonetheless fail to subtract from its calculations the volume of
discharged oil or released hazardous substance removed during response.
The Department solicits comment on ways of addressing this issue.
Moreover, the Department notes that when entering data on the volume of
the discharged oil or released hazardous substance removed, trustee
officials should be careful to specify the volume of the actual
discharged oil or released hazardous substance removed rather than the
total volume of contaminated water or sand removed.
The Gross National Product Implicit Price Deflator is published in
the Survey of Current Business, which is available from the U.S.
Department of Commerce/Bureau of Economic Analysis, 1441 L Street, NW,
Washington, DC, 20230, (202) 606-9900. The proposed NRDAM/CME Version
2.2 uses the Gross National Product Implicit Price Deflator for base
year 1987 to calculate damages in current dollars. Due to a recent
change in the way the Gross National Product Implicit Price Deflator is
calculated, values for base year 1987 are available only back to 1987.
Therefore, trustee officials who wish to calculate current damages for
years prior to 1987 will need to manually adjust the model output using
the appropriate Implicit Price Deflator series. Furthermore, 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/CME Version 2.2 and the form in
which they intend to enter the information into the NRDAM/CME Version
2.2.
For further information on the proposed required incident-specific
data inputs, see the NRDAM/CME Version 2.2 technical document, Volume
II, Section 4.
2. Additional User-Supplied Data Inputs
The Department is proposing to allow trustee officials, under
certain circumstances, to supply incident-specific data inputs in
addition to the required data inputs. 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 the water differed significantly from the typical
values for that season, as built into the proposed NRDAM/CME Version
2.2, and if the data can be collected consistent with the requirements
of reasonable cost and cost effectiveness:
Water temperature at the time and point where the
discharged oil or released hazardous substance entered the water;
Total suspended sediment concentration at the time and
point where the discharged oil or released hazardous substance entered
the water;
Mean settling velocity of suspended solids at the time and
point where the discharged oil or released hazardous substance entered
the water; and
Air temperature at the time and point where the discharged
oil or released hazardous substance entered the water.
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/CME Version
2.2 supplies default values.
For further information on the proposed additional incident-
specific data inputs, see the NRDAM/CME Version 2.2 technical document,
Volume II, Section 4.
C. Geographic Information System
The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 technical document,
Volume I, Section 2.
The proposed NRDAM/CME Version 2.2 is intended to cover all coastal
and marine waters of the United States, including those of the
territories and possessions. The precise boundaries of the proposed
NRDAM/CME Version 2.2 are affected by the availability of data and the
manner in which geographic data are handled by the model. However, the
following general criteria were used to determine the geographic scope
of the proposed NRDAM/CME Version 2.2: open water out to the seaward
boundary of the Exclusive Economic Zone; estuarine waters with an
average salinity above 0.5 parts per thousand; and intertidal portions
of shorelines of those water bodies. The Department solicits comment on
whether the proposed NRDAM/CME Version 2.2 does cover all the
geographic areas that meet these criteria and whether any of the areas
that are covered by the proposed model do not satisfy these criteria.
The Department further solicits comment on whether different or
additional criteria should be used to determine the geographic scope or
use of the model.
Under the proposed rule, trustee officials would be allowed to use
the NRDAM/CME Version 2.2 to obtain a rebuttable presumption only for
those discharges and releases that occurred within the area covered by
the model. If a discharge or release originated outside the area
covered by the proposed NRDAM/CME Version 2.2 but migrated into that
area, an assessment performed using the model would not be granted a
rebuttable presumption. The Department solicits comment on whether
trustee officials should be allowed to use the NRDAM/CME Version 2.2
and obtain a rebuttable presumption for assessments involving
discharges and releases that occur outside but migrate into the area
covered by the model. The Department further solicits comment on how
the user-supplied data inputs should be adjusted in such cases.
The proposed NRDAM/CME Version 2.2 assigns a habitat type to each
grid cell. The Department wants to ensure that the model reflects the
most accurate information available. The Department encourages
commenters to review the proposed habitat designations and provide
information about possible revisions that should be made in the final
version of the model. In particular, the Department requests resource
management agencies to review the habitat designations in the locations
for which they have expert knowledge.
To facilitate thorough review of the proposed NRDAM/CME Version 2.2
in cases where commenters believe the proposed habitat designations to
be incorrect, the Department has included a habitat editing feature in
the model that allows commenters to override the model's habitat
designations for particular grid cells. Commenters who believe that
particular grid cells have been assigned incorrect habitat designations
may use this feature to indicate the specific grid cells that should be
corrected and provide that information to the Department. The
Department requests that commenters submit their edited habitat
designations in computer binary form copied onto a diskette. Commenters
should also provide appropriate technical documentation supporting
their edited habitat designations. The habitat editing feature enables
commenters to run the model using corrected habitat designations for
particular grid cells. For further information on this feature, see the
NRDAM/CME Version 2.2 technical document, Volume II, Appendix D.
The habitat editing feature was developed as a temporary tool to
facilitate review during the public comment period. Under today's
proposed rule, trustee officials would not be allowed to override the
habitat designations in the final version of the model if they intended
to obtain a rebuttable presumption. However, the Department is
soliciting comment on whether the habitat editing feature should be
incorporated into the final version of the model and whether the rule
should be modified to allow trustee officials to override the habitat
designations for particular grid cells and still obtain a rebuttable
presumption.
Allowing trustee officials to override the model's habitat
designations might enable fine-tuning of the model to better reflect
site-specific conditions. On the other hand, type A procedures are
designed to simplify assessments, minimize fieldwork requirements, and
narrow the potential areas of dispute. Providing an option to override
the habitat designations could undermine these goals. Therefore, the
Department solicits comment on whether the final rule should allow
trustee officials to override the habitat designations and, if so,
under what conditions.
D. Submodels
The proposed NRDAM/CME Version 2.2 includes four linked submodels:
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/CME
Version 2.2 databases and the incident-specific data inputs supplied by
trustee officials to perform Injury Determination, Quantification, and
Damage Determination.
1. 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. Wind, background currents, and tidal currents
affect the movement of the particles on the water surface and in the
water column.
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 NRDAM/CME Version 2.2 continues the simulations until
all environmental exposure levels are below acute toxicity thresholds.
The proposed Chemical and Toxicological Database includes acute
toxicity values for each oil and hazardous substance covered by the
proposed NRDAM/CME Version 2.2. The proposed Submodel creates a time
series 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/CME Version 2.2 technical document, Volume I, Section 3.
For further information on the proposed Chemical and Toxicological
Database, see the NRDAM/CME Version 2.2 technical document, Volume I,
Section 7; and Volume III, Section 2.
2. 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 time
series 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. The particles move at random within an
ecosystem during a single season. Each contiguous grouping of grid
cells of the same habitat type represents a separate ecosystem. 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, shellfish harvest areas, waterfowl hunting areas, and
furbearer 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 coastal and marine habitats and
species biomass are encouraged to provide the data to the Department.
Reviewers of the proposed NRDAM/CME Version 2.2 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.
For further information on the proposed Biological Effects
Submodel, see the NRDAM/CME Version 2.2 technical document, Volume I,
Section 4. For further information on the proposed Biological Database,
see the NRDAM/CME Version 2.2 technical document, Volume I, Section 6.
The actual database values and their respective reference sources are
presented in the NRDAM/CME Version 2.2 technical document, Volume IV.
3. 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 proposed Restoration Submodel evaluates
three types of restoration actions: habitat restoration, restoration of
assimilative capacity, and restocking fish and wildlife. The
restoration costs computed by the Restoration Submodel comprise one
component of the damage figure; the other component, compensable value,
is calculated by the separate Compensable Value Submodel.
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 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.
When mangrove swamps, macroalgal beds, or seagrass beds are affected,
the proposed Submodel evaluates replanting. When mollusk reefs are
affected, the proposed Submodel evaluates reseeding using spat. When
coral reefs are affected, the proposed Submodel evaluates transplanting
of coral colonies.
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 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 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 coastal and marine 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 (Aug. 1, 1986); and 59 FR 14273 (March 25, 1994). The
proposed Restoration Submodel calculates damages associated with
restoring baseline assimilative capacity of coastal and marine
environments in cases where habitat restoration action is not
warranted.
When habitat restoration actions are not warranted, the proposed
NRDAM/CME Version 2.2 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 coastal and marine environments. The continued presence of this
chemical mass reduces the overall assimilative capacity of the coastal
and marine 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 coastal
and marine environments. Specifically, the proposed Submodel assumes
that an equivalent mass of contaminated sediment will be removed from
one of 247 harbors, bays, or river mouths that have been identified as
National Status and Trends sites by NOAA. 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
National Status and Trends sites. The Department further solicits
comment on whether there are sufficient technical data concerning such
methods to allow for their incorporation into the NRDAM/CME and, if so,
where such data are located.
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 restoration cost. This figure is added to
the compensable value figure computed by the Compensable Value Submodel
to form the damage claim.
For further information on the proposed Restoration Submodel, see
the NRDAM/CME Version 2.2 technical document, Volume I, Section 5. For
further information on the proposed Restoration Cost Database, see the
NRDAM/CME Version 2.2 technical document, Volume I, Sections 5, 12, and
13; and Volume V, Sections 5-7.
4. Compensable Value Submodel
The proposed Compensable Value Submodel calculates compensable
value. Compensable value, as computed by the proposed Compensable Value
Submodel, is the sum of certain economic values lost to the public
pending the reestablishment of baseline conditions through natural
recovery or restoration, 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 recreational or commercial 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 coastal and marine environments
that are in a form that can be used in the NRDAM/CME, 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 shellfish species; (3)
certain commercially exploited furbearer species; (4) certain
recreationally harvested fish species; (5) certain recreationally
harvested shellfish species; and (6) certain recreationally harvested
waterfowl species.
Trustee officials may recover natural resource damages only for
lost public values and are not authorized to seek compensation for
private commercial losses. However, commercially exploited species are
public resources until harvested and trustee officials are authorized
to recover damages for the public loss in value of those resources due
to the discharge or release. The compensable value for lost harvests of
commercially exploited fish, shellfish, 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, shellfish, 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, shellfish, 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, shellfish, and
waterfowl species, as computed by the Biological Effects Submodel, by
the marginal value of harvesting an additional animal, as supplied by
the Compensable Value Database.
Under the proposed rule, lost nonconsumptive use values are
calculated for: (1) Lost beach visitation due to closure; (2) lost
boating due to closure; and (3) lost wildlife viewing for trips
originating within the immediate area. 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 Department is concerned about the proposed methodology for
calculating compensable value for lost wildlife viewing and solicits
comment on all aspects of the methodology. 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 local viewing 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/CME Version 2.2 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 local viewing value varies with the size
of the affected wildlife population and the estimated number of
affected local 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 local viewing value for species that are
abundant and areas that have few affected local recreational trips.
Alternatively, the proposed Compensable Value Submodel estimates a
higher per animal local viewing value for species that are less
abundant and areas that have more affected local recreational trips.
The Department recognizes that this methodology can produce
anomalous results. For example, the proposed Compensable Value Submodel
estimates that the value for local viewing of a sea otter in Alaska is
$0.00304 per animal per year, due to the relatively high number of
otters and relatively low number of local viewers in that area. On the
other hand, the proposed Compensable Submodel estimates that the value
for local viewing of an oystercatcher in a particular region in Florida
is $257,956.30 per bird per year, because there are very few
oystercatchers and many local viewers in that area. Furthermore, the
proposed NRDAM/CME Version 2.2 performs its calculations based on
probabilities. The total local viewing value of an oystercatcher would
be lost only if there was a 100 percent certainty of killing the
oystercatcher, which would imply contamination covering a large portion
of the Florida coast.
Such a scenario would constitute a major discharge or release,
rendering use of the proposed NRDAM/CME Version 2.2 inappropriate. For
minor discharges and releases, the proposed Compensable Value Submodel
would calculate lost local viewing value for the Florida oystercatcher
based on a small percentage of the total local viewing value of a
single bird, thereby providing a value considerably less than
$257,956.30.
A detailed explanation of the methodology for calculating
compensable value for lost local wildlife viewing is provided in the
NRDAM/CME Version 2.2 technical document, Volume I, Section 8.4. The
specific per animal local viewing values incorporated in the proposed
NRDAM/CME Version 2.2 are listed in the NRDAM/CME Version 2.2 technical
document, Volume V, Tables V.1.3 through V.1.12. The Department wishes
to emphasize that the per animal local viewing values do not represent
the total ``value'' of the animals nor do they encompass restoration
costs, which are calculated separately, as discussed in Section IV.D.3
of this preamble.
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 local viewing
value. The Department also requests comment on criteria for excluding
extremely small and large values for a particular species from the
NRDAM/CME and the conditions under which such criteria should be
applied. Further, commenters with additional valuation data or
alternative valuation methodologies concerning wildlife viewing in
coastal and marine environments are encouraged to provide the data and
methodologies to the Department.
One alternative under consideration is the deletion of
nonconsumptive values from the NRDAM/CME Version 2.2 for those species
that have consumptive value. Another alternative under consideration is
the deletion of all nonconsumptive wildlife values from the NRDAM/CME
Version 2.2. Many species, such as bald eagles, have little or no
consumptive use. Therefore, if nonconsumptive wildlife values were
deleted from the NRDAM/CME Version 2.2, 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 coastal
and marine environments. Based on the comments received, the Department
will decide whether to retain the proposed compensable values for lost
local wildlife viewing, modify those values, exclude extremely large
and small values for particular species, or delete all lost wildlife
viewing values from the final version of the NRDAM/CME.
The per unit values in the proposed Compensable Value Database are
stated in 1991 dollars. 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. The current version of Office of Management and Budget
Circular A-94 (OMB Circular A-94), dated October 29, 1992, does not
establish a specific discount rate for natural resource damages.
However, OMB Circular A-94 does specify a seven percent discount rate
for public investments.
The Department is soliciting comment on whether the NRDAM/CME
Version 2.2 should include a fixed discount rate based on the OMB
Circular A-94 discount rate for public investments 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. OMB Circular A-94 is
available from the OMB Publications Office (202-395-7332).
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/CME
Version 2.2 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 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/CME Version 2.2 technical document, Volume I, Section 8.
For further information on the proposed Compensable Value Database, see
the NRDAM/CME Version 2.2 technical document, Volume I, Sections 9-11;
and Volume V, Sections 1-4.
V. Conditions Regarding Use of the NRDAM/CME Version 2.2
The proposed rule provides several conditions regarding use of the
NRDAM/CME Version 2.2. Under the proposed rule, if the discharged oil
or released hazardous substance occurred in a coastal or marine
environment, trustee officials would be required to determine if the
conditions regarding use of the NRDAM/CME Version 2.2 were met. The
conditions regarding use of the NRDAM/CME Version 2.2 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/CME Version 2.2 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/CME
Version 2.2, type B procedures, or a combination, and obtain a
rebuttable presumption. Use of combined type A and type B procedures is
subject to the limitations discussed in Section II.B.2 of this
preamble. Trustee officials would decide which assessment procedures to
use based on considerations of ``cost effectiveness'' and ``reasonable
cost,'' as defined in 43 CFR 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/CME Version 2.2, 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. The hazardous substances included in the Chemical
Database are listed in the NRDAM/CME Version 2.2 technical document,
Volume III, Table III.2.1. Oils are divided into categories as
specified in the NRDAM/CME Version 2.2 technical document, Volume III,
Table III.2.4. The Department solicits comment on whether trustee
officials should be allowed to use the NRDAM/CME Version 2.2 for oils
and hazardous substances that are not listed in Tables III.2.1 or
III.2.4 through use of a proxy oil or hazardous substance. The
Department further solicits comment on how appropriate proxies for oils
and hazardous substances might be selected.
2. Magnitude of Discharge or Release
The proposed NRDAM/CME Version 2.2 is designed to calculate damages
resulting from minor discharges or releases. The proposed NRDAM/CME
Version 2.2 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/CME Version 2.2.
Also, the proposed NRDAM/CME Version 2.2 assumes that injuries to
biological resources are small enough that the ecosystem structure is
not significantly changed. For example, the proposed NRDAM/CME Version
2.2 does not address changes in predator-prey relationships or
reproductive rates. Moreover, the proposed NRDAM/CME Version 2.2
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/CME Version 2.2
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/CME Version 2.2. 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/CME Version 2.2. 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. Entry into Water
The proposed NRDAM/CME Version 2.2 models the fate of discharged
oils and released hazardous substances only upon their entry into the
water. Further, the proposed NRDAM/CME Version 2.2 does not model the
fate of discharges or releases that occur deep underwater. Therefore,
if the discharged oil or released hazardous substance did not enter
water at or near the 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/CME Version 2.2 is built upon thousands
of grid cells each representing a discrete geographic area.
Collectively these cells constitute the coastal and marine
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/CME Version 2.2 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/CME Version 2.2. 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/CME Version 2.2
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/CME Version 2.2, 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/CME Version 2.2 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/CME Version 2.2 uses two-dimensional, vertically
averaged values for background and tidal currents. Three-dimensional
effects, such as reverse flows at depth, upwelling, downwelling, and
vertical changes in background and tidal current velocities 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/CME Version 2.2 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/CME
Version 2.2 may be warranted.
2. Effect of Response Actions
Under the proposed rule, trustee officials would be required to
supply information on the volume of the discharged oil or released
hazardous substance that was removed during response actions. The
proposed NRDAM/CME Version 2.2 takes this information into
consideration when determining injury. However, the proposed NRDAM/CME
Version 2.2 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/CME Version 2.2 may be
warranted.
3. Types of Natural Resources Injured
The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 may be warranted.
4. Pathway of Contamination
The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 may be
warranted.
5. Type of Biological Injuries
The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 may be warranted.
6. Nature of Compensable Values
The proposed NRDAM/CME Version 2.2 calculates compensable values
for: (1) Lost harvests of commercially exploited fish species; (2) lost
harvests of commercially exploited shellfish species; (3) lost harvests
of commercially exploited furbearer species; (4) lost harvests of
recreationally harvested fish species; (5) lost harvests of
recreationally harvested shellfish species; (6) lost harvests of
recreationally harvested waterfowl species; (7) lost wildlife viewing
for trips originating within the immediate area; (8) lost beach
visitation due to closure; and (9) 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/CME Version 2.2 may be warranted.
VI. Response to Comments
The Department received several comments in response to its
previous advance notices of proposed rulemaking. The Department
appreciates the time and effort expended by the commenters.
A. General
Comment: Many of the commenters provided or cited reference
material for use in the construction of the revised NRDAM/CME 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: One commenter provided a list of assumptions upon which
the NRDAM/CME Version 1.2 was constructed and indicated that the
assumptions needed to be substantiated. Another commenter suggested
that the revised NRDAM/CME be subjected to a comprehensive, independent
review to verify its algorithms and coding.
Response: The Department acknowledges that the proposed NRDAM/CME
Version 2.2 has been built upon various assumptions. The Department
notes that the NRDAM/CME Version 2.2 technical document is being made
available to the public so that all assumptions, data, and computer
coding can receive independent review.
Comment: Several commenters generally endorsed the approach to the
development of type A procedures but thought that the NRDAM/CME Version
1.2 was too simplistic. These commenters stated that the applicability
of the model to discharges and releases in certain geographic areas was
questionable.
Response: The proposed NRDAM/CME Version 2.2 incorporates
extensively revised biological and economic databases. The proposed
NRDAM/CME Version 2.2 considers multiple habitats within a single
application of the model and includes a broader range of habitat types
than was included in the NRDAM/CME Version 1.2. Further, the
variability of sea floor depths has been included in the model.
Comment: One commenter stated that the databases included in the
NRDAM/CME Version 1.2 are inadequate. The commenter suggested that the
Department conduct new studies to fill in these perceived deficiencies.
Response: CERCLA provides that the natural resource damage
assessment regulations are to incorporate the ``best available''
procedures. CERCLA sec. 301(c)(2). The statute did not authorize, nor
has funding been made available for, extensive technology development
or generation of original data. The Department has endeavored to
include all appropriate information in formulation of the proposed
NRDAM/CME Version 2.2. The databases have been developed based on
information that was not available at the time the NRDAM/CME Version
1.2 was developed. For example, whereas the biological database in the
NRDAM/CME Version 1.2 contained approximately 130 species, the proposed
NRDAM/CME Version 2.2 contains approximately 1,000 species. The
Department solicits information on sources of data or information on
modelling technology that would be useful in improving the model.
Comment: One commenter stated that a model designed to quantify
damages for injured resources must predict zero damages for some de
minimis amounts of oil.
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
damages even with simplified procedures such as the NRDAM/CME Version
2.2. However, the Department also notes that CERCLA does not identify a
lower limit below which no damages may be recovered 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/CME Version 2.2 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. Damages can range from zero or near zero for the
smallest discharges and releases to millions of dollars for larger
discharges or releases of highly toxic substances in more sensitive
environments. This reflects a compensatory rather than punitive
framework as mandated by CERCLA.
Comment: Several commenters addressed the model documentation
provided for the NRDAM/CME Version 1.2. One commenter suggested that
the Department include an on-line explanation of the limits to the
model's applicability. The commenter thought that such an explanation
would contribute to greater understanding of the model and its
limitations than is possible when information is buried in several
hundred pages of technical documentation. Further, the commenter
recommended placing the instructions for use of the model in a separate
book rather than in an appendix and further recommended that the
documentation provide greater specificity on the user-supplied data
inputs.
Response: The Department acknowledges the extensiveness of the
technical documentation accompanying the proposed NRDAM/CME Version
2.2. The extensive documentation has been provided to ensure, to the
maximum extent possible, that all of the underlying assumptions
contained in the model, its algorithms, and its databases have been
explained and made available for public review and comment. The
Department acknowledges the possibility that certain technical factors
and model limitations might not be readily apparent due to the
comprehensiveness of the technical documentation. For this reason, this
preamble has, where appropriate, identified sections of the NRDAM/CME
Version 2.2 technical document where pertinent technical explanations
can be found. The user interface contained in the proposed NRDAM/CME
Version 2.2 also provides an on-line help screen and explanation of the
model's user interface. Volume II of the NRDAM/CME Version 2.2
technical document contains a user's manual.
Comment: One commenter suggested that the model output indicate the
total area covered by a slick and the dollar value used per unit of
loss to calculate damages in the spill year.
Response: The Department notes that the printed output of the
proposed NRDAM/CME Version 2.2 does indicate the total area covered by
a slick. The Department has not identified in the printed output a
single dollar value per unit of loss, because the model calculates
damages based on a number of different components of injuries and
losses.
Comment: One commenter questioned whether the natural resource
damage assessment regulations allow for adequate participation by PRPs.
Response: The overall administrative process for conducting an
assessment, including the opportunity for PRP involvement, is being
examined in the ongoing biennial review and is beyond the scope of this
rulemaking. Nonetheless, the Department notes that the regulations
currently require trustee officials to provide PRPs with a Notice of
Intent to Perform an Assessment before beginning an assessment and
invite the participation of the PRPs. Trustee officials are also
required to make the Assessment Plan available to PRPs for review and
comment. Finally, trustee officials are authorized to allow PRPs to
perform assessment work. See 43 CFR Sec. 11.32, as amended by 59 FR
14282.
B. Physical Fates
Comment: One commenter stated that the revised NRDAM/CME should not
treat bioturbation as a process for removing contaminant from the area
of concern.
Response: The proposed NRDAM/CME Version 2.2 calculates the
distribution of contaminant concentrations at the surface, in the upper
and lower water columns, and in the sediments. The sediment
concentration used for calculating toxicity to benthic species is the
dissolved interstitial water concentration within the sediment. The
Department acknowledges that bioturbation is not a contaminant removal
process but instead functions as an exchange mechanism to distribute
the contaminant concentrations between the lower water column and the
upper ten centimeters of the sediments. In this manner, the resultant
contaminant concentrations in the interstitial waters of the sediments
and resultant toxicity to benthic organisms are determined by the
proposed Physical Fates Submodel.
Comment: One commenter questioned whether use of the NRDAM/CME
Version 1.2 was appropriate in Alaska when ice cover is present.
Another commenter questioned whether the NRDAM/CME Version 1.2
adequately modelled surface slicks that split into numerous slicks.
Response: The proposed NRDAM/CME Version 2.2, unlike the NRDAM/CME
Version 1.2, specifically addresses ice cover in Alaska. The proposed
NRDAM/CME Version 2.2 also uses different calculations to compute
surface spreading of the contaminant plume. The proposed NRDAM/CME
Version 2.2 employs individual ``Lagrangian'' particles to simulate the
movement of a surface slick. Thus, the proposed model can simulate the
splitting of a single surface slick into numerous slicks. The
Department specifically requests comments on both of these aspects of
the proposed NRDAM/CME Version 2.2.
Comment: Another commenter thought that the treatment of
degradation rates in the NRDAM/CME Version 1.2 was inadequate, because
sediment and water column degradation rates were not the same.
Response: The Department notes that hydrolysis, photolysis, and
biodegradation are the three major chemical transformation processes
contributing to the degradation of an oil or hazardous substance in
both water and sediment. Scientific efforts to measure the respective
transformation rate constants have not been highly successful.
Laboratory experiments often lack reproducibility. Moreover, there are
apparent inconsistencies between laboratory results and actual field
data. Thus, most estimation methods on the degradation of pollutants in
water and sediments are based on the structural features of the
chemical. The specifics of the estimation methodology used by the
proposed NRDAM/CME Version 2.2 are explained in the NRDAM/CME Version
2.2 technical document, Volume I, Section 7.6.
C. Biological Effects
Comment: One commenter stated that the treatment and documentation
of the mortality rates of birds coming in contact with a surface slick
were inadequately addressed in the NRDAM/CME Version 1.2.
Response: The Department acknowledges that extensive new
information and data have become available on this issue since the
development of the NRDAM/CME Version 1.2. The proposed NRDAM/CME
Version 2.2 incorporates this new information and data and allows for
the differences in extent of exposure that sea birds and waterfowl
experience in a spill event. Further, the proposed NRDAM/CME Version
2.2, unlike the NRDAM/CME Version 1.2, addresses the mortality of sea
birds and waterfowl based on an exposure volume rather than only a
terminal thickness of surface slick. For further information, see the
NRDAM/CME Version 2.2 technical document, Volume I, Section 4.2.
Comment: One commenter asserted that there is a natural tendency of
many marine organisms to avoid spilled materials and suggested that the
NRDAM/CME Version 1.2 be revised to reflect this.
Response: Evidence for avoidance to toxic materials has been
recorded in marine organisms for certain released substances (e.g.,
chlorine), but a lack of such avoidance has been indicated for others
(e.g., fish, invertebrates and marine mammals do not generally avoid
oils.) Due to the large number of substances included in the NRDAM/CME
Version 2.2 databases, data sufficient for incorporating such actions
in the model have not been shown to be available. Should commenters
have knowledge of additional data available on such an avoidance
phenomena, the Department would appreciate such information.
Comment: Several comments were provided on the common and
scientific names contained in the database of the NRDAM/CME Version
1.2. The commenters indicated that there were numerous other species of
fish and mammals not included in the database that have commercially
and recreationally important values. The commenters further suggested
that adult and larval populations and seasonal primary productivity
rates be revised to more closely reflect actual conditions in specific
areas.
Response: The Department appreciates the commenters' technical
review. The Department notes that the Biological Database contained in
the proposed NRDAM/CME Version 2.2 includes a broader number of species
and seasonal biomass densities for biota that have commercially and
recreationally important values. The proposed Biological Database also
provides greater specificity of the habitat types. The Department is
requesting specific review of the proposed Biological Database.
Comment: One commenter stated that the Department had identified
the source of information used for the construction of the toxicity
database of the NRDAM/CME Version 1.2 but had failed to document why it
chose one value over another. The commenter thought that in certain
instances, the injury threshold values contained in the NRDAM/CME
Version 1.2 were lower than the no-observable-effects level (NOEL)
contained in the water quality criteria developed by the United States
Environmental Protection Agency (EPA). Therefore, according to this
commenter, the NRDAM/CME Version 1.2 may overestimate toxic effects.
Another commenter stated that the Department should not employ injury
thresholds that are lower than those required in preventative type
programs like the CWA.
Response: The Department notes that the values contained in the
NRDAM/CME Version 1.2 chemical toxicity database were derived from
published databases. Volume I, Section 4.1 of the NRDAM/CME Version 1.2
technical document explained that one specific toxicological value was
not chosen over another as suggested by the commenter. Instead, the
technical document explained the quality control procedures and the
methodology used to derive specific mean toxicity values. Similarly,
Volume I, Section 7.9 of the NRDAM/CME Version 2.2 technical document
explains the development of the toxicity data set and the quality
control procedures used to incorporate recently available technical
data. The NRDAM/CME Version 2.2 technical document further describes
the manner in which the selected data were calibrated to specified
standard conditions prior to the computation of mean toxicity values
for each oil or hazardous substance. The NRDAM/CME Version 2.2
technical document, Volume III, Table III.2.1 lists mean 96-hour LC50
values (the lethal concentration at which 50% of test organisms die
within 96 hours) and mean EC50 values (effective concentration at which
the growth rate is 50% of control values) for each of the 469 oils and
hazardous substances contained in the proposed NRDAM/CME Version 2.2.
The toxicity threshold values listed in the NRDAM/CME Version 2.2
technical document, Volume III, Table III.2.1 are used to control the
termination of calculations performed by the Physical Fates Submodel.
The Physical Fates Submodel ceases its calculations of the distribution
of the discharged oil or released hazardous substance at the point
where the water concentrations fall below the specified threshold
value. Since the toxicity threshold values serve as switches to turn
off the calculations of the Physical Fates Submodel, they could have
been set at any level. Instead, individual values were determined for
each oil and hazardous substance contained in the Chemical and
Toxicological Database using the toxicity algorithms described in
Volume I, Section 4.2.1 of the NRDAM/CME Version 2.2 technical
document. Thus, comparisons of the threshold values used in the
proposed NRDAM/CME Version 2.2 and the NOEL values used in preventative
programs are inapposite.
D. Restoration
Comment: Several commenters requested that the NRDAM/CME Version
1.2 be revised to calculate the full costs of restoring injured natural
resources. Other commenters thought there was no appropriate way to
determine restoration costs for inclusion in the model.
Response: In compliance with Ohio v. Interior and Colorado v.
Interior, the proposed NRDAM/CME Version 2.2 has been developed to
include consideration of restoration costs in the calculation of
damages. The Department invites comment on the appropriateness of the
specific costs included. For further information on the derivation of
restoration costs, see Section IV.D.3 of this preamble; and the NRDAM/
CME Version 2.2 technical document, Volume I, Section 5; and Volume V,
Sections 5-7.
Comment: One commenter suggested that the NRDAM/CME Version 1.2 be
revised to include the cost for restocking certain types of fish and
shellfish.
Response: The proposed NRDAM/CME Version 2.2 includes the cost for
restocking certain types of fish and shellfish. The restocking costs
have been determined based on regional costs and availabilities of the
fish and shellfish.
Comment: One commenter addressed bird cleaning and rehabilitation
actions as a potential cost that should be included in the model. The
commenter suggested letting the model calculate cleaning costs based on
the number of birds the model indicated were exposed to the spill.
Response: The Department has not included bird cleaning and
rehabilitation efforts into the calculations performed by the proposed
NRDAM/CME Version 2.2. The Department considers that such costs usually
would be part of the costs incurred for cleanup of spills rather than
natural resource restoration.
Comment: One commenter suggested that costs of replacement of
resources is not an appropriate measure of damages if restoration is
not going to actually be carried out.
Response: CERCLA requires that 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). Restoration includes actions taken to promote
and monitor natural recovery. Therefore, trustee officials must always
undertake some form of restoration, rehabilitation, replacement, and/or
acquisition of equivalent resources when they recover natural resource
damages.
Comment: One set of commenters suggested that the regulations
provide that trustee officials simply be reimbursed for the actual
expenses associated with restoration actions, thereby eliminating the
need for a procedure to project restoration costs.
Response: Requiring trustee agencies to fund restoration and seek
reimbursement later would place a substantial and unwarranted burden
upon those agencies. Further, even if such a system were instituted,
trustee officials would still need a procedure for determining injuries
and appropriate restoration. For this purpose, the type A procedures
provide standard methodologies for conducting simplified assessments,
and the type B procedures are available for more complex cases.
Comment: One commenter noted that the model should reflect a
greater likelihood of need for restoration in instances where oil comes
ashore and affects beaches or coastal wetlands.
Response: The proposed NRDAM/CME Version 2.2 does evaluate
restoration actions in instances where oil comes ashore. Comment is
invited on the appropriateness of the modelling techniques and data
used in this evaluation.
Comment: One commenter asserted that the choice of appropriate
restoration actions available in the marine environment may be very
limited.
Response: The proposed NRDAM/CME Version 2.2 evaluates a range of
restoration actions. Comment is solicited on the appropriateness of the
actions proposed for inclusion.
Comment: One commenter asserted that in the case of most discharges
and releases in marine systems, natural recovery renders restoration
efforts unnecessary.
Response: The proposed NRDAM/CME Version 2.2 recognizes the
potential for natural recovery in the determination of the most cost-
effective restoration activities. As discussed in Section IV.D.3 of
this preamble and in the NRDAM/CME Version 2.2 technical document,
Volume I, Section 5, the anticipated rate of natural recovery has a
direct bearing on the determination of a damage figure.
Comment: One commenter advised against the use of fish and wildlife
cost-per-organism tables in determining restoration costs.
Response: The proposed NRDAM/CME Version 2.2 does not consider
restoration costs based on cost-per-organism tables. However, the model
does include regional restocking costs for certain commercially
available species, when appropriate, as part of the restoration costs.
Comment: One commenter noted that the Department's natural resource
damage assessment regulations should include a mechanism that allows
the value of PRP-financed remedial activities to be compared to or
deducted from the value of the calculated natural resource damages. In
addition, one commenter noted that the regulations should clarify
whether restoration includes the results of clean-up or ``treatment''
of affected areas.
Response: The regulations already provide that natural resource
damages are to be 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 *
* * .'' See 43 CFR 11.15(a)(1). The proposed type A procedure for
coastal and marine environments would require trustee officials to
supply data on the volume of the discharged oil or released hazardous
substance cleaned up from the water and shore.
E. Economic Issues
Comment: One commenter thought that the revised NRDAM/CME should
incorporate lost nonuse values. This commenter indicated that the
absence of such values in the model would introduce significant
downward bias in the calculus. One commenter suggested that the
Department include estimates of lost nonuse values based on a
comparison with lost use values. The commenter suggested a relationship
on the order of 0.5 to 1 times the value of the lost use values.
Response: The Department has not, at this time, included the loss
of nonuse values in the proposed NRDAM/CME Version 2.2. Virtually no
empirical studies have been found that address nonuse values for
resources in coastal and marine environments that are in a form that
can be used in the NRDAM/CME, i.e. that allow the calculation of
marginal values appropriate for relatively small losses in the stock of
natural resources. Also, the Department does not believe there is
adequate empirical evidence to support the calculation of nonuse values
based on a ratio to use values. In cases where significant nonuse
losses are anticipated, trustee officials may consider using type B
procedures instead of or in addition to a type A procedure. The
calculation of lost nonuse values using type B procedures is the
subject of a separate rulemaking being conducted by the Department. See
59 FR 23097.
Comment: One commenter thought that the economic values contained
in the NRDAM/CME Version 1.2 for the Arctic region should be expanded.
Response: The Department notes that the Compensable Value Database
contained in the proposed NRDAM/CME Version 2.2 is considerably more
extensive than the economics database in the NRDAM/CME Version 1.2.
F. Tribal Issues
Comment: Several commenters requested that the NRDAM/CME Version
1.2 be revised to address tribal cultural or spiritual values and
values of resources for subsistence and medicinal uses.
Response: CERCLA specifically requires the development of type A
procedures for the performance of simplified assessments using minimal
field observations. CERCLA sec. 301(c)(2)(A). The statute also requires
that the type A procedures incorporate the best available procedures.
CERCLA sec. 301(c)(2). These statutory requirements and the limitations
of available data necessitate an approach limited in scope. The
decisions on which values would be included in the proposed NRDAM/CME
Version 2.2 were made based on the availability of data in a form that
could be used in the model. During future biennial reviews, as more
data become available, the Department may consider the inclusion of
additional values. Meanwhile, discharges or releases that affect
natural resource values that are not adequately reflected in the
proposed NRDAM/CME Version 2.2 can be addressed through the use of type
B procedures.
Comment: Several commenters expressed concern about 43 CFR
11.84(b)(2), which provides that only ``committed uses'' of injured
resources may be included in the estimation of compensable values.
These commenters stated that due to the beliefs of Indian people and
their commercial and subsistence reliance on natural resources, in
general, Indian tribes have ``committed uses'' for all tribal
resources. Therefore, these commenters thought that the assessment of
compensable values should be allowed for all tribal resources.
Response: The committed use provision of 43 CFR 11.84(b)(2) applies
only to the use of type B procedures. The type B procedures are being
examined in the ongoing biennial review and are beyond the scope of
this rulemaking. However, the Department notes that the committed use
concept was upheld in Ohio v. Interior. 880 F.2d at 461-62.
Furthermore, the concept does not restrict the resources for which
trustee officials may assess damages, it simply defines the types of
damages that may be assessed for those resources pursuant to CERCLA.
Whenever a resource is injured, trustee officials may assess damages
for the cost of restoring, rehabilitating, replacing, and/or acquiring
the equivalent of the injured resource, regardless of whether it has a
committed use. The committed use requirement does, however, limit the
assessment of damages for interim lost public uses of an injured
resource to nonspeculative lost uses.
Comment: Several commenters stated that Indian tribes should be
allowed to assert claims for injured natural resources owned by tribal
members where such resources are subject to a trust restriction on
alienation, and that Indian tribal governments should also be allowed
to bring claims for damages to natural resources belonging to, managed
by, held in trust by, appertaining to, or otherwise controlled by an
Indian tribe. These commenters asserted that the natural resource
damage assessment regulations should expressly provide that Indian
tribes may assert natural resource damage claims for both tribal
natural resources and those trust resources owned by tribal members.
Response: The scope of resources covered by the natural resource
damage assessment regulations is determined by section 101(16) of
CERCLA, which defines ``natural resources'' as:
[L]and, fish, wildlife, biota, air, water, ground water,
drinking water supplies, and other such resources belonging to,
managed by, held in trust by, appertaining to, or otherwise
controlled by the United States * * *, any State or local
government, any foreign government, any Indian tribe, or, if such
resources are subject to a trust restriction on alienation, any
member of an Indian tribe.
Clarification of this definition, which is incorporated into 43 CFR
11.14(z), is beyond the scope of this rulemaking.
Authorship
The primary authors of this rule are Mary C. Morton, David R.
Rosenberger, James F. Bennett, and Stephen F. Specht.
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
Coastal zone, Environmental protection, Fish, Hazardous substances,
Incorporation by reference, Indian lands, Marine resources, National
forests, National parks, Natural resources, Oil pollution, Public
lands, Recreation areas, Sea shores, 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 11.18 is amended by revising paragraph (a)(4) to read as
follows:
Sec. 11.18 Incorporation by reference
(a) * * *
(4) ``CERCLA Type A Natural Resource Damage Assessment Model for
Coastal and Marine Environments Technical Documentation,'' Volumes I-
VI, dated October 1994, prepared for the U.S. Department of the
Interior by Applied Science Associates, Inc., Narragansett, Rhode
Island, A.T. Kearney, Inc., Alexandria, Virginia, 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(b)(1)(i)(A) and 11.41(a), (b), and
(c)(2) of this part.
* * * * *
Sec. 11.19 [Removed and Reserved]
3. Section 11.19 is removed and reserved.
Subpart C--Assessment Plan Phase
4. Section 11.33 is amended by revising the heading of the section
and paragraph (b) to read as follows:
Sec. 11.33 Assessment Plan--deciding whether to use a type A
procedure, type B procedures, or a combination.
* * * * *
(b) Coastal and marine environments. (1) When a discharge or
release occurs in a coastal or marine environment, as defined in
Sec. 11.41(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 Coastal and Marine Environments Technical Documentation,'' dated
October 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
water at or near the surface;
(D) The spatial and temporal distribution of biological resources
in the area affected by the discharge or release is reasonably
represented by the data contained in the NRDAM/CME, as defined in
Sec. 11.41(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 shellfish species; lost harvests of
commercially exploited furbearer species; lost harvests of
recreationally harvested fish species; lost harvests of recreationally
harvested shellfish 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 occurs in
a coastal or marine environment, as defined in Sec. 11.41(b) of this
part, and the authorized official determines that all of the conditions
listed in paragraphs (b)(1)(i) and (b)(1)(ii) of this section are met,
the authorized official shall use the type A procedure provided for in
Sec. 11.41 of this part to calculate all damages.
(3) If the discharged oil or released hazardous substance occurs in
a coastal or marine environment, as defined in Sec. 11.41(b) of this
part, and the authorized official determines that all of the conditions
listed in paragraph (b)(1)(i) of this section are met and that one or
more of the conditions listed in paragraph (b)(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. 11.41 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 occurs in
a coastal or marine environment, as defined in Sec. 11.41(b) of this
part, and the authorized official determines that one or more of the
conditions listed in paragraph (b)(1)(i) of this section are not met,
the authorized official shall use type B procedures to calculate all
damages.
(5) Notwithstanding paragraphs (b)(2) and (b)(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 advances all reasonable costs
of using type B procedures within a time frame acceptable to the
authorized official.
5. The heading of subpart D is revised to read as follows:
Subpart D--Type A Procedures
6. Section 11.41 is revised to read as follows:
Sec. 11.41 Coastal and marine environments.
(a) General. The type A procedure for coastal and marine
environments shall be performed in accordance with this section. The
procedure requires the use of the Natural Resource Damage Assessment
Model for Coastal and Marine Environments Version 2.2 (NRDAM/CME),
which is included and explained in ``CERCLA Type A Natural Resource
Damage Assessment Model for Coastal and Marine Environments Technical
Documentation,'' Volumes I-VI, dated October 1994, U.S. Department of
the Interior (incorporated by reference, see Sec. 11.18). The NRDAM/CME
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:
Background (mean) current means the net long-term current flow
(i.e. one direction only), attributable to forces such as winds, river
flow, water density, and tides, that remains when all the oscillatory
(tidal) components have been removed either mathematically or by
measurement techniques.
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 Coastal and Marine
Environments Technical Documentation,'' dated October 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 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 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 due to a
discharge of oil or a release of a hazardous substance.
Closure of a furbearer hunting or trapping area means the
prohibition by an appropriate agency of commercial and recreational
hunting or trapping of furbearers in a specified area due to a
discharge of oil or a release of a hazardous substance.
Closure of a shellfish harvest area means the prohibition by an
appropriate agency of commercial and recreational harvesting of
shellfish in a specified area 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 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 due to a discharge of oil or a release of a hazardous substance.
Coastal or marine environment means any area represented by the
geographic data contained in the NRDAM/CME, as defined in paragraph (b)
this section.
Implicit Price Deflator means the quarterly implicit price deflator
for the Gross National Product (base year 1987) as provided in the
Survey of Current Business, published by the U.S. Department of
Commerce/Bureau of Economic Analysis, 1441 L Street, NW, Washington,
D.C., 20230, (202) 606-9900.
Landward fishery or landward shellfish harvest area means a fishery
or shellfish harvest area in a body of water that is enclosed by land
and does not contain vegetation (e.g., wetland, seagrass, or kelp) or
invertebrate reef (e.g., coral reef).
NRDAM/CME means the Natural Resource Damage Assessment Model for
Coastal and Marine Environments Version 2.2 (NRDAM/CME), which is
included and explained in ``CERCLA Type A Natural Resource Damage
Assessment Model for Coastal and Marine Environments Technical
Documentation,'' Volumes I-VI, dated October 1994, U.S. Department of
the Interior (incorporated by reference, see Sec. 11.18). The NRDAM/CME
is a computer model consisting of integrated physical fates, biological
effects, restoration, and economic valuation submodels and databases.
Province means one of the geographic areas delineated in Table 6.1
of Volume I of ``CERCLA Type A Natural Resource Damage Assessment Model
for Coastal and Marine Environments Technical Documentation,'' dated
October 1994, U.S. Department of the Interior (incorporated by
reference, see Sec. 11.18).
Seaward fishery or seaward shellfish harvest area means a fishery
or a shellfish harvest area in a body of water that is not enclosed by
land and does not contain vegetation (e.g., wetlands, seagrass, or
kelp) or invertebrate reef (e.g., coral reef).
Structured fishery or structured shellfish harvest area means a
fishery or a shellfish harvest area that contains vegetation (e.g.,
wetlands, seagrass, or kelp) or invertebrate reef (e.g., coral reef).
Tidal current means the alternating rise and fall of the sea level
caused by the gravitational forces between the earth, moon, and sun.
Tidal range means the difference between the highest and lowest
height of the tide.
(c) Required user-supplied data. (1) The authorized official shall
supply the incident-specific information described in paragraphs (c)(2)
through (c)(15) of this section for use as inputs to the NRDAM/CME. 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 Coastal and Marine Environments
Technical Documentation,'' dated October 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 the
water 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 the water 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 the water.
(6) The authorized official shall specify the latitude and
longitude where the discharged oil or released hazardous substance
entered the water.
(7) The authorized official shall specify the estimated wind
velocity and direction at the point where the discharged oil or
released hazardous substance entered the water during the 30-day period
beginning 24 hours before the discharged oil or released hazardous
substance entered the water. 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 the following information
concerning currents at the time the discharged oil or released
hazardous substance entered the water:
(i) The authorized official shall specify a rectangular geographic
area encompassing the area affected by the discharge or release stated
in terms of the northern- and southern-most latitude, and the eastern-
and western- most longitude.
(ii) The authorized official shall specify at least one set of data
concerning the background (mean) current for the area specified
pursuant to paragraph (c)(8)(i) of this section. Each set of data shall
consist of: an east-west (U) velocity stated in centimeters per second
or knots; a north-south (V) velocity stated in centimeters per second
or knots; and the latitude and longitude of the origin of the U and V
velocity components within the area specified pursuant to paragraph
(c)(8)(i) of this section.
(iii) The authorized official shall specify at least one set of
data concerning the tidal current at the time of high tide (flood
stage) for the area specified pursuant to paragraph (c)(8)(i) of this
section. Each set of data shall consist of: An east-west (U) velocity
stated in centimeters per second or knots; a north-south (V) velocity
stated in centimeters per second or knots; and the latitude and
longitude of the origin of the U and V velocity components within the
area specified pursuant to paragraph (c)(8)(i) of this section.
(9) The authorized official shall specify the time at which high
tide occurred on the date that the discharged oil or released hazardous
substance entered the water.
(10) The authorized official shall specify the tidal range at the
time and point where the discharged oil or released hazardous substance
entered the water stated in meters.
(11) The authorized official shall specify whether the tide in the
area affected by the discharge or release is diurnal (i.e. completes
one full cycle every day) or semi-diurnal (i.e. completes two full
cycles every day).
(12) The authorized official shall specify whether response actions
were taken to remove the discharged oil or released hazardous substance
from the water surface or the shoreline. If response actions were taken
to remove the discharged oil or released hazardous substance, the
authorized official shall specify the following information:
(i) For response actions taken to remove the discharged oil or
released hazardous substance from the water surface, the authorized
official shall specify:
(A) One or more rectangular geographic areas encompassing the
area(s) in which such response actions were taken stated in terms of
the northern- and southern-most latitude, and the eastern- and western-
most longitude;
(B) For each area specified pursuant to paragraph (c)(12)(i)(A) of
this section, one or more time frames for such response actions stated
in terms of the number of days after the discharged oil or released
hazardous substance entered the water that the removal began and ended;
and
(C) For each time frame specified pursuant to paragraph
(c)(12)(i)(B) of this section, the volume of the discharged oil or
released hazardous substance that was removed from the water surface as
a result of the response actions stated in barrels, gallons, or cubic
meters.
(ii) For response actions taken to remove the discharged oil or
released hazardous substance from the shoreline, the authorized
official shall specify:
(A) One or more rectangular geographic areas encompassing the
area(s) in which such response actions were taken stated in terms of
the northern- and southern-most latitude, and the eastern- and western-
most longitude;
(B) For each area specified pursuant to paragraph (c)(12)(ii)(A) of
this section, one or more time frames for such response actions stated
in terms of the number of days after the discharged oil or released
hazardous substance entered the water that the removal began and ended;
and
(C) For each time frame specified pursuant to paragraph
(c)(12)(ii)(B) of this section, the volume of the discharged oil or
released hazardous substance that was removed from the shoreline as a
result of the response actions stated in barrels, gallons, or cubic
meters.
(13) The authorized official shall specify whether there were any
closures of boating areas, Federal beaches, State beaches, fisheries,
shellfish harvest areas, furbearer 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 province in which the closure occurred; the number of
boats affected by the closure per day; and the number of days of
closure.
(ii) For closure of a Federal beach, the authorized official shall
specify: The province in which the closure occurred; the length closed
stated in kilometers; and the number of days of closure stated by
calendar month.
(iii) For closure of a State beach, the authorized official shall
specify: The province in which the closure occurred; the length closed
stated in kilometers; and the number of days of closure stated by
calendar month.
(iv) For closure of a fishery, the authorized official shall
specify: The province in which the closure occurred; the area closed
stated in square kilometers; the number of days of closure; and whether
the area closed was a seaward fishery, a landward fishery, or a
structured fishery.
(v) For closure of a shellfish harvest area, the authorized
official shall specify: The province in which the closure occurred; the
area closed stated in square kilometers; the number of days of closure;
and whether the area closed was a seaward shellfish harvest area, a
landward shellfish harvest area, or a structured shellfish harvest
area.
(vi) For closure of a furbearer hunting or trapping area, the
authorized official shall specify: The province in which the closure
occurred; the area closed stated in square kilometers; and the number
of days of closure.
(vii) For closure of a waterfowl hunting area, the authorized
official shall specify: The province in which the closure occurred; the
area closed stated in square kilometers; and the number of days of
closure.
(14) The authorized official shall specify the Implicit Price
Deflator for the quarter during which the discharged oil or released
hazardous substance entered the water.
(15) For discharges or releases in Alaska, the authorized official
shall specify whether the NRDAM/CME 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/CME if: The authorized official estimates that conditions
where the discharged oil or released hazardous substance entered the
water varied significantly from the typical conditions for the time of
year in which the discharge or release entered the water; 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/CME 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 the water.
(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 the
water.
(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 the water.
(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 the water.
(e) Applying the NRDAM/CME. The authorized official shall apply the
NRDAM/CME using the incident-specific data supplied pursuant to
paragraphs (c) and (d) of this section.
(f) Report of Assessment. After applying the NRDAM/CME, the
authorized official shall prepare a Report of Assessment, as described
in Sec. 11.90 of this part.
Dated: December 2, 1994.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 94-30108 Filed 12-7-94; 8:45 am]
BILLING CODE 4310-RG-P
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.