State of Colo. v. U.S. Dept. of Interior
| Citation | 880 F.2d 481 |
| Decision Date | 14 July 1989 |
| Docket Number | Nos. 87-1265,87-1266,s. 87-1265 |
| Parties | , 279 U.S.App.D.C. 158, 19 Envtl. L. Rep. 21,127 STATE OF COLORADO, Petitioner, v. UNITED STATES DEPARTMENT OF the INTERIOR, and Manuel Lujan, Jr., Secretary of the United States Department of the Interior, Chemical Manufacturers Association and American Petroleum Institute, Intervenors. NATIONAL WILDLIFE FEDERATION, Public Citizen, Inc., and Environmental Defense Fund, Petitioners, v. UNITED STATES DEPARTMENT OF the INTERIOR, Chemical Manufacturers Association and American Petroleum Institute, Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Eric Glitzenstein and Erik D. Olson, with whom Duane Woodard, Atty. Gen., of the State of Colo., Michael R. Hope, Deputy Atty. Gen., James D. Ellman, Asst. Atty. Gen., Colorado Dept. of Law, and Michael Bean appeared on the brief, for respondents.
Margaret Kane Harrington, Attorney, with whom Roger J. Marzulla, Asst. Atty. Gen., Land and Natural Resources Div., U.S. Dept. of Justice, and Randall Luthi, Attorney, Office of the Sol., U.S. Dept. of the Interior, appeared on the brief, for respondents.
John A. Zackrison, with whom Susan M. O'Sullivan, David F. Zoll, Barbara A. Hindin, G. William Frick, and Catherine M. Eshelman appeared on a joint brief, for intervenors.
Before WALD, Chief Judge, and ROBINSON and MIKVA, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
In these consolidated cases, the state of Colorado and three environmental groups petition this court for judicial review of the so-called "type A" rules promulgated by the Department of the Interior ("DOI") pursuant to section 301(c) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended, 42 U.S.C. Sec. 9651(c). The final rules at issue are intended to provide "standard procedures for simplified assessments" of damages to natural resources caused by releases or discharges of oil and hazardous substances. CERCLA Sec. 301(c)(2)(A), 42 U.S.C. Sec. 9651(c)(2)(A).
The question presented is whether the scope and content of the rules promulgated comply with section 301(c)(2)(A) of CERCLA. We hold that although DOI's type A rules cover a limited class of cases--namely, minor, short-duration releases in coastal or marine environments--DOI has made, in the face of an ambiguous congressional mandate and technical uncertainties, a reasonable judgment regarding the proper scope of the rules. The content of the type A rules, however, must be revised in light of our decision today in Ohio v. Department of the Interior, 880 F.2d 432 (D.C.Cir. 1989) (). Accordingly, we remand to DOI for reissuance of type A regulations consistent with our decision in Ohio. In addition, we expect DOI to continue to promulgate, as expeditiously as possible, further type A regulations to cover as many types of releases in as many different kinds of environments as feasible.
CERCLA establishes a comprehensive statutory scheme for cleaning up inactive hazardous waste sites. See 42 U.S.C. Secs. 9601-9675. It authorizes, inter alia, federal and state natural resource damage "trustees" to assess and recover from "responsible parties" damages for "injury to, destruction of, or loss of" publicly owned or controlled natural resources, caused by the release of hazardous substances. CERCLA Sec. 107(a)(4)(C), 42 U.S.C. Sec. 9607(a)(4)(C).
To carry out this statutory mandate, section 301(c) of CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1630 (1986), provides:
(1) The President, acting through Federal officials designated by the National Contingency Plan * * *, shall study and, not later than two years after December 11, 1980, shall promulgate regulations for the assessment of damages for injury to, destruction of, or loss of natural resources resulting from a release of oil or a hazardous substance for the purposes of this chapter and section 1321(f)(4) and (5) of Title 33 [provisions of the Clean Water Act]. Notwithstanding the failure of the President to promulgate the regulations required under this subsection on the required date, the President shall promulgate such regulations not later than 6 months after October 17, 1986.
(2) Such regulations shall specify (A) standard procedures for simplified assessments requiring minimal field observation, including establishing measures of damages based on units of discharge or release or units of affected area, and (B) * * *. Such regulations shall identify the best available procedures to determine such damages, including both direct and indirect injury, destruction, or loss and shall take into consideration factors including, but not limited to, replacement value, use value, and ability of the ecosystem or resource to recover.
(3) Such regulations shall be reviewed and revised as appropriate every two years.
42 U.S.C. Sec. 9651(c) (emphasis added). Trustees performing damage assessments under the section 301(c) procedures are granted rebuttable presumptions in any subsequent related proceedings to recover damages. CERCLA Sec. 107(f)(2)(C), 42 U.S.C. Sec. 9607(f)(2)(C).
The type A regulations at issue in this case are those promulgated by DOI in response to section 301(c)(2)(A). Section 301(c)(2)(B) requires promulgation of type B rules establishing "alternative protocols for conducting assessments in individual cases." 42 U.S.C. Sec. 9651(c)(2)(B). DOI's type B rules have been challenged in a separate petition for review, which we decide today in Ohio v. Department of the Interior, 880 F.2d 432 (D.C.Cir. July 14, 1989).
On August 14, 1981, the President delegated his duty to promulgate natural resource damage assessment regulations to DOI. See Exec. Order No. 12,316, 46 Fed.Reg. 42,237 (1981), superseded by Exec. Order No. 12,580, 52 Fed.Reg. 2923 (1987).
On January 10, 1983, DOI issued an advance notice of proposed rulemaking seeking public comment concerning the development of the damage assessment procedures. See 48 Fed.Reg. 1084 (1983). On August 1, 1983, in response to comments, DOI issued a second advance notice of proposed rulemaking. See 48 Fed.Reg. 34,768 (1983).
In 1983 and 1984, three suits were filed (one involving the environmental groups in this case) against DOI for failure to promulgate the damage assessment regulations. On December 12, 1984, the U.S. District Court for the District of New Jersey ruled that DOI had failed to promulgate the regulations in a timely manner. See New Jersey v. Ruckelshaus, No. 84-1668 (D.N.J.1984), aff'd mem., 782 F.2d 1031 (3d Cir.1986). On February 5, 1985, the court entered a consent order requiring DOI to promulgate final type A regulations by August 7, 1986. This deadline was later extended to February 4, 1987, to provide further public comment on the proposed regulations, and extended again by Congress in SARA to April 17, 1987.
On May 5, 1986, DOI proposed type A regulations that provided simplified procedures for assessing natural resource damages in coastal and marine environments. See 51 Fed.Reg. 16,636 (1986). The comment period was extended twice to August 18, 1986. See id. at 22,320, 25,903. The final rules were published on March 20, 1987, see 52 Fed.Reg. 9042 (1987), over four years after the original statutory deadline, and are codified at 43 C.F.R. Part 11 (1988).
DOI's type A rules provide a "simplified assessment process" to determine natural resource damages for discharges or releases "in coastal and marine environments." 43 C.F.R. Sec. 11.41(a)(1); see also 51 Fed.Reg. 16,63 6 (1986). The rules require the use of a computer model developed by DOI and referred to as the Natural Resource Damage Assessment Model for Coastal and Marine Environments ("NRDAM/CME"). See 43 C.F.R. Sec. 11.41(a)(1).
The NRDAM/CME assessment methodology consists of four phases: (1) assessment plan, (2) injury determination, (3) quantification, and (4) damage determination. See 43 C.F.R. Sec. 11.41(a)(2). These phases parallel those incorporated in the type B regulations. See 51 Fed.Reg. 27,674 (1986). The NRDAM/CME computer model uses three integrated submodels to make the injury determination, quantification, and damage determination calculations: a "physical fates" submodel, a "biological effects" submodel, and an "economic damages" submodel. During the injury determination phase, the physical fates submodel uses physical parameter values (e.g., the chemical composition of the hazardous substance) to determine the pathway of the contamination. See 43 C.F.R. Sec. 11.41(d)(2). The biological effects submodel, based on factors such as the toxicity of the hazardous substance, then determines the injury to natural resources. Id. Sec. 11.41(d)(4). This submodel is also used during the quantification phase, for example, "to provide an estimate of the total biomass killed." Id. Sec. 11.41(e)(1)(i). Finally, based on these results, the economic damages submodel calculates the damage determination for the coastal and marine environments, such as the economic harm from the closure of fishing areas, hunting areas, and beaches. Id. Sec. 11.41(f).
In short, the NRDAM/CME computer model uses databases containing general chemical, biological, and economic information to determine, quantify, and assess economic damages from injuries to natural resources caused by minor, short-duration discharges or releases of oil or hazardous substances in coastal and marine environments. See 52 Fed.Reg. 9045-48 (1987) (). See generally Department of the Interior, Measuring Damages to Coastal and Marine Natural Resources: Concepts and Data Relevant for CERCLA Type A Damage Assessments (Jan. 1987) (NRDAM/CME technical...
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