Natl Assn Mftr v. DOI

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 1997 Decided January 16, 1998

No. 96-1268

National Association of Manufacturers,

Petitioner

v.

United States Department of the Interior,

Respondent

On Petition for Review of an Order of the

United States Department of the Interior

James R. Bieke argued the cause for the petitioner. Wil-
liam R. Galeota and Jan Amundson were on brief.

Greer S. Goldman, Attorney, United States Department of
Justice, argued the cause for the respondent. Lois J. Schif-
fer, Assistant Attorney General, and Naikang Tsao, Attorney,
were on brief.

Before: Ginsburg, Henderson and Tatel, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: The Compre-
hensive Environmental Response, Compensation, and Liabili-
ty Act of 1980, as amended, 42 U.S.C. ss 9601 et seq.,
(CERCLA) permits a "trustee" 1 to recover from a "potential-
ly responsible party" (PRP) 2 "damages for injury to, destruc-
tion of, or loss of natural resources, including the reasonable
costs of assessing such injury, destruction, or loss resulting
from ... a release" of a hazardous substance regulated under
CERCLA. 42 U.S.C. s 9607(a)(C). Subsection 301(c)(1) of
CERCLA, directs the President (acting through his designee,
the Secretary of the United States Department of Interior) to
promulgate regulations that "specify ... standard procedures
for simplified assessments [of natural resource damages]
requiring minimal field observation, including establishing
measures of damages based on units of discharge or release
or units of affected area." 42 U.S.C. s 9651(c). A damage
________
1 A "trustee" is a federal, state or Indian tribal official who, in
accordance with 42 U.S.C. s 9607(f)(2), is designated to "act on
behalf of the public as [a] trustee[ ] for natural resources."

2 Under CERCLA, a PRP is:

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

(2) any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such hazard-
ous substances were disposed of,

(3) any person who by contract, agreement, or otherwise ar-
ranged with a transporter for transport for disposal or treat-
ment, of hazardous substances owned or possessed by such
person, by any other party or entity, at any facility or incinera-
tion vessel owned or operated by another party or entity and
containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous sub-
stances for transport to disposal or treatment facilities, inciner-
ation vessels or sites selected by such person, from which there
is a release, or a threatened release which causes the incur-
rence of response costs, of a hazardous substance, ...

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

assessment performed according to these procedures is enti-
tled to "the force and effect of a rebuttable presumption ...
in any administrative or judicial proceeding." 42 U.S.C.
s 9607(f)(2)(C).

This is a challenge to the final rule of the Department of
the Interior (DOI), entitled "Natural Resource Damage As-
sessments--Type A Procedures," 61 Fed. Reg. 20,560 (1996)
(codified at 43 C.F.R. pt. 11) (hereinafter 1996 Type A rule),
that partially implements CERCLA section 301(c), 42 U.S.C.
s 9651(c). The petitioner, National Association of Manufac-
turers (NAM), claims that the Type A final rule violates
CERCLA and the Administrative Procedure Act, 5 U.S.C.
ss 551 et seq., (APA), and therefore must be vacated for one
or more of the following reasons: (1) the rule permits dam-
ages to be calculated without on-site verification that a natu-
ral resource has in fact been injured and that the injury is in
fact attributable to the particular release in question; (2) the
rule does not require a trustee to consider, in calculating
natural resource damage (NRD), an alternative to restoration
of an adversely affected resource (i.e., replacing a damaged
resource or acquiring its equivalent); (3) the rule arbitrarily
and capriciously fails to relate selected restoration alterna-
tives to the "services" provided by the resource; 3 (4) the rule
allows recovery for purely speculative losses regarding the
affected resource's ability to assimilate future releases; (5)
the rule authorizes recovery of private losses related to
commercial fishing and hunting; (6) the rule's databases and
computer submodels are not the "best available procedures"
for determining NRD and invalidly rely on outdated studies
and information or on suspect methodologies or both; (7) the
rule permits a trustee to use Type A and Type B procedures
________
3 Natural resource "services" consist of "the physical and biologi-
cal functions performed by the resource including the human uses
of those functions. These services are the result of the physical,
chemical, or biological quality of the resource." 43 C.F.R.
s 11.14(nn) (1996).

in combination to assess NRD from a single release; 4 and (8)
the rule provides for calculation of NRD resulting from
releases or discharges of oil, notwithstanding the enactment
of the Oil Pollution Act of 1990, 33 U.S.C. ss 2701 et seq.,
which authorizes the National Oceanic and Atmospheric Ad-
ministration to regulate oil releases or discharges.

DOI contends that NAM's first and fifth claims are untime-
ly, the third claim was not raised below, one of the arguments
included in NAM's seventh claim is not ripe for review and
the eighth claim should be dismissed for lack of jurisdiction.
Additionally, DOI responds on the merits, arguing that its
interpretation of the relevant CERCLA provisions is entitled
to deference under Chevron USA, Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). In addition, DOI
contends that its damage submodels are otherwise reason-
able, scientifically valid and adequately supported by credible
studies.

We conclude that NAM failed to raise the third claim below
and that it lacks standing to bring the eighth claim. Regard-
ing the remaining claims, we conclude that DOI's interpreta-
tion of relevant CERCLA provisions is entitled to deference
under step two of the familiar Chevron analysis and that its
damage submodels suffice. Accordingly, we deny NAM's
request to set aside DOI's 1996 Type A rule, as amended.5

I. BACKGROUND

Section 301(c) of CERCLA recites:
________
4 The "Type A" and "Type B" titles come from the clauses of
subsection 301(c)(2): clause "A" requires DOI to develop "standard
procedures for simplified assessments" and clause "B" requires DOI
to develop "alternative protocols for conducting assessments in
individual cases." 42 U.S.C. s 9651(c)(2).

5 DOI informed the court that it promulgated certain technical
corrections to the May 1996 rule on November 10, 1997. See
Natural Resource Damage Assessments--Type A Procedures, 62
Fed. Reg. 60,457 (1997) (hereinafter Revisions to 1996 Type A rule).
As discussed infra notes 16 and 23, the corrections moot two of
NAM's challenges to the Type A procedures.

(1) The President, acting through Federal officials
designated by the National Contingency Plan published
under section 9605 of this title, shall study and, not later
than two years after December 11, 1980 shall promulgate
regulations for the assessment of damages for injury to,
destruction of, or loss of natural resources resulting from
a release of oil or a hazardous substance for the purposes
of this chapter and section 1321(f)(4) and (5) of Title 33.
Notwithstanding the failure of the President to promul-
gate the regulations required under this subsection on
the required date, the President shall promulgate such
regulations not later than 6 months after October 17,
1986.

(2) Such regulations shall specify (A) standard proce-
dures for simplified assessments requiring minimal field
observation, including establishing measures of damages
based on units of discharge or release or units of affected
area, and (B) alternative protocols for conducting assess-
ments in individual cases to determine the type and
extent of short- and long-term injury, destruction, or
loss. Such regulations shall identify the best available
procedures to determine such damages, including both
direct and indirect injury, destruction, or loss and shall
take into consideration factors including, but not limited
to, replacement value, use value, and ability of the eco-
system or resource to recover.

(3) Such regulations shall be reviewed and revised as
appropriate every two years.

42 U.S.C. s 9651(c). Trustees must retain sums recovered
for NRD "without further appropriation, for use only to
restore, replace, or acquire the equivalent of [the damaged]
resources." 42 U.S.C. s 9607(f)(1). Further, "[t]he measure
of damages in any action ... [is] not ... limited by the sums
which can be used to restore or replace" the affected re-
sources, although CERCLA proscribes "double recovery ...
for natural resource damages, including the costs of damage
assessment or restoration, rehabilitation, or acquisition for

the same release and natural resource." 42 U.S.C.
s 9607(f)(1).

As the final sentence of subsection 301(c)(1) foresaw, devel-
opment of Type A and Type B procedures has not been
accomplished as expeditiously as the Congress directed. To-
day, more than 17 years after section 301(c) of CERCLA was
enacted, DOI has developed "simplified assessment[ ]" (i.e.,
Type A) procedures for only two aquatic environments: (1)
the Great Lakes environments and (2) coastal and marine
environments. The latter were the first Type A procedures
developed; they were promulgated in 1987, see Natural Re-
source Damage Assessments, 52 Fed. Reg. 9042 (1987) (codi-
fied at 43 C.F.R. pt. 11 (1988)) (hereinafter 1987 Type A rule),
and subsequently reviewed by this court, see Colorado v.
DOI, 880 F.2d 481 (D.C. Cir. 1989). In Colorado we upheld
the 1987 Type A rule in part and vacated it in part, relying on
our companion decision reviewing a challenge to DOI's Type
B rule. See Ohio v. DOI, 880 F.2d 432 (D.C. Cir. 1989)
[hereinafter Ohio II]. After Colorado--in which we stated
that "[w]e fully expect DOI to act as expeditiously as possi-
ble," 880 F.2d at 491--DOI spent almost seven more years
revising the Type A procedures and adding to them submo-
dels for assessing NRD in Great Lakes environments. See
1996 Type A rule, 61 Fed. Reg. at 20,560.

In light of the delay, it is indeed fortunate that a trustee
has authority under CERCLA to settle claims for NRD
without recourse to either Type A or Type B procedures.
See 42 U.S.C. s 9622. Even if claims are not settled, a
trustee is under no obligation to use Type A or Type B
procedures to calculate damages--although the trustee must
use the procedures if it wishes to use the rebuttable presump-
tion provided for in subsection 107(f))(2)(C) of CERCLA, 42
U.S.C. s 9607(f)(2)(C). See 43 C.F.R. s 11.10 (1996).

If a trustee decides that a formal assessment is needed to
effect recovery of NRD, the trustee must complete four
administrative steps: (1) Preassessment, (2) Assessment
Plan, (3) Assessment and (4) Post Assessment. 1996 Type A
rule, 61 Fed. Reg. at 20,562. The first step, Preassessment,

consists of "rapid review of readily available information that
focuses on resources for which the Federal or State agency or
Indian tribe may assert trusteeship under section 107(f) or
section 126(d) of CERCLA." 43 C.F.R. s 11.23(b) (1996).
The purpose of the Preassessment is to "ensure that there is
a reasonable probability of making a successful claim before
monies and efforts are expended in carrying out an assess-
ment." Id.

The second step, the Assessment Plan, is undertaken "to
ensure that the assessment is performed in a planned and
systematic manner and that methodologies selected ... for a
type A assessment or ... for a type B assessment ... can be
conducted at a reasonable cost." 43 C.F.R. s 11.30(b). "The
Assessment Plan must identify and document the use of all of
the type A and/or type B procedures that will be performed
... [and] be of sufficient detail to serve as a means of
evaluating whether the approach used for assessing the dam-
age is likely to be cost-effective and meets the definition of
reasonable cost, as those terms are used" in the applicable
regulations. Id. s 11.31(a)(1)-(2).

A trustee can use Type A procedures if six environmental
conditions are met:

(a) The released substance entered an area covered by
the [coastal and marine or Great Lakes procedures] ...

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

(c) The released substance entered the water at or
near the surface[;] ...

(d) At the time of the release, winds did not vary
spatially over the area affected by the release in a way
that would significantly affect the level or extent of
injuries;

(e) The authorized official is not aware of any reliable
evidence that, for species that are likely to represent a
significant portion of the claim, the species biomass is
significantly lower than the species biomass assigned by
the [relevant computer submodels][; and] ...

(f) Subsurface currents either: are not expected to
significantly affect the level or extent of injuries; or are
reasonably uniform with depth over the water column in
the area affected by the release.

43 C.F.R. s 11.34 (1996). If a release is within these environ-
mental parameters, a preliminary assessment of damages is
performed according to Type A procedures and included in
the draft Assessment Plan made available for public review
and comment. Id. s 11.43. If the preliminary assessment
indicates that damages will exceed $100,000, a trustee must
either "(1) limit the portion of [the trustee's] claim calculated
with the type A procedure to $100,000; or (2) compute all
damages using type B procedures." Id. s 11.42(b). Never-
theless "[t]he $100,000 limit applies only to damages calculat-
ed by a type A procedure and does not limit damages
calculated through supplemental type B studies." 1996 Type
A rule, 61 Fed. Reg. at 20,563.

In deciding whether to use Type A or Type B procedures
(or some combination of the two), the trustee must "weigh[ ]
the difficulty of collecting site-specific data against the suita-
bility of the averaged data and simplifying assumptions in the
type A procedure for the release being assessed." 43 C.F.R.
s 11.35(a) (1996). The trustee may elect to use Type B
procedures if "they can be performed at a reasonable cost and
if the increase in accuracy outweighs the increase in assess-
ment costs." Id. Even if a trustee decides to use Type A
procedures, a PRP may nonetheless insist on Type B proce-
dures. See id. s 11.35(b); 1996 Type A rule, 61 Fed. Reg. at
20,562.

A trustee may use both Type A and Type B procedures to
calculate NRD for the same release if the following criteria
are met:

(1) The type B procedures are cost-effective and can
be performed at a reasonable cost;

(2) There is no double recovery; and

(3) The type B procedures are used only to determine
damages for injuries or compensable values that do not

fall into the categories addressed by the type A proce-
dure.

43 C.F.R. s 11.36(a) (1996). If a trustee decides to use both
kinds of procedures, it "must document in the Assessment
Plan how [it] intend[s] to prevent double recovery." 1996
Type A rule, 61 Fed. Reg. at 20,563.

The third step of the process, "Assessment," is subdivided
into three phases:

Injury Determination; Quantification; and Damage De-
termination. In Injury Determination, trustees deter-
mine whether any natural resources have been injured.
If trustees determine that resources have been injured,
they proceed to Quantification, in which they quantify the
resulting change in baseline conditions. "Baseline" con-
ditions are the conditions that would have existed had the
release not occurred. Finally, in Damage Determination,
trustees calculate the monetary compensation to be
sought as damages for the natural resource injuries.
Damages include two components: (1) the cost of restor-
ing, rehabilitating, replacing, and/or acquiring the equiva-
lent of the injured natural resources; and (2) the eco-
nomic value lost by the public pending recovery of the
resources (compensable value).

When trustees use type B procedures, they perform
Injury Determination, Quantification, and Damage De-
termination through laboratory and field studies....

When trustees use a type A procedure, they perform
Injury Determination, Quantification, and Damage De-
termination through a computer model....

Trustees must supply a number of data inputs to
operate the [Type A submodels]. The rule also requires
trustees to modify certain data contained in the models if
they have more reliable information.... After trustees
supply the data inputs and modifications, the models
themselves perform the remaining calculations necessary
to establish if there has been an injury, quantify the
extent of injury, select appropriate restoration actions,

and value economic losses. With the availability of these
computer models, trustees will now be able to pursue
compensation for cases in which the cost of detailed type
B studies is prohibitive.

1996 Type A rule, 61 Fed. Reg. at 20,562-63. While the Type
A computer submodels take into account a number of "site
specific factors," including "physical variations among geo-
graphic areas, differences in the toxicity and physical charac-
teristics of hazardous substances, seasonal and temperature
effects, and differences in the biological productivity of the
spill site," they do not require on-site testing, nor do they
require empirical testing to establish a causal link between
the release and any observable injury. Id. at 20,563.

Four computer programs comprise the Type A submodels
and perform the damage calculations at the Assessment
stage: (1) the Physical Fates Submodel, (2) the Biological
Effects Submodel, (3) the Restoration Submodel and (4) the
Compensable Value Submodel. 1996 Type A rule, 61 Fed.
Reg. at 20,565-67. "The physical fates submodel estimates
the distribution of the released substance on the water sur-
face, along shorelines, in the water column, and in sediments
over time." Id. at 20,565. "The biological effects submodel
determines whether certain types of natural resource injuries
have resulted from the release and, if so, quantifies those
injuries." Id. "The restoration submodel estimates the cost,
if any, of restoring the injured resources." Id. Finally,
"[c]ompensable value, as computed by the compensable value
submodel, is the sum of certain economic use values lost to
the public pending reestablishment of baseline conditions
through either natural recovery or active restoration, as
determined by the restoration submodel." Id. at 20,566.

The fourth and final step of the process is the Post-
Assessment phase, at which time the trustee prepares a
"Report of Assessment that consists of the Preassessment
Screen Determination, the Assessment Plan, and the informa-
tion" used by the Type A submodels to calculate damages.
43 C.F.R. s 11.90(a) (1996). A copy of the report is then
attached to the demand letter the trustee sends the PRP. Id.

s 11.91. Finally, the trustee prepares a Restoration Plan, as
required by section 111(i) of CERCLA, 42 U.S.C. s 9611,
which details "how the monies [recovered] will be used to
address natural resources, specifically, what restoration, reha-
bilitation, replacement, or acquisition of the equivalent re-
sources will occur." Id. s 11.93(a).

II. DISCUSSION

The yardstick by which we assess the petitioner's APA and
Chevron challenges to the 1996 Type A rule is the one we
used in Colorado:

We review DOI's type A rules, promulgated after
informal notice and comment rulemaking procedures un-
der the Administrative Procedure Act, see 5 U.S.C.
s 553(c), under the familiar "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law" standard, see id. s 706(2)(A). Under this standard,
we are mindful a reviewing court is "not to substitute its
judgment for that of the agency." Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814,
823, 28 L.Ed.2d 136 (1971).

Moreover, it is well-established that when presented
with "a pure question of statutory construction," a re-
viewing court's "first job is to try to determine congres-
sional intent using 'traditional tools of statutory construc-
tion,' " NLRB v. United Food & Commercial Workers,
Local 23, 484 U.S. 112, 108 S.Ct. 413, 421, 98 L.Ed.2d 429
(1987) (quoting INS v. Cardozo-Fonseca, 480 U.S. 421,
107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987)), for if
"Congress has directly spoken to the precise question at
issue," then "the court, as well as the agency, must give
effect to the unambiguously expressed intent of Con-
gress," Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-
43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). If,
however, "the statute is silent or ambiguous with respect
to the specific issue," id. at 843, 104 S.Ct. at 2782, then
the question becomes whether the agency charged with
implementing the statute--DOI in this case--has made a

"reasonable" interpretation, id. at 845, 104 S.Ct. at 2783,
i.e., one that is "rational and consistent with the statute."
United Food & Commercial Workers, 108 S.Ct. at 421.

880 F.2d at 486.

Thus, in reviewing an APA challenge to an agency's techni-
cal judgments incorporated in a submodel, "the agency's
choice of model and its application must be respected when
the record discloses that the agency examined the relevant
data and articulated a reasoned basis for its decision." Ohio
II, 880 F.2d at 479. Similarly, when reviewing an agency's
technical judgments under step two of Chevron, we ask
whether the agency's choices are "reasonable and consistent
with congressional intent, and therefore worthy of deference."
Id. at 477; accord Kennecott Utah Copper Corp. v. DOI, 88
F.3d 1191, 1225 (D.C. Cir. 1996) (noting need to "defer to the
agency's decision about how to strike th[e] balance" between
conflicting statutory and policy goals "unless [the decision] is
unreasonable"). Moreover, in applying both of these stan-
dards to the scientific judgment of an agency, we do not
"review scientific judgments of the agency ... as the chemist,
biologist, or statistician that we are neither qualified by
training nor experience to be, but as a reviewing court
exercising our narrowly defined duty of holding agencies to
certain minimal standards of rationality," Troy Corp. v.
Browner, 120 F.3d 277, 283 (D.C. Cir. 1997) (internal quota-
tion marks omitted), or, in the context of Chevron step two,
assuring at a minimum the reasonableness of the judgment in
light of the requirements imposed (or discretion granted) by
the authorizing statute.

A. Verification of Injury and Causation

NAM first argues that DOI's Type A rule, which relies on
computer submodels to calculate the types and amounts of
damages that are rebuttably presumed to result from a
particular release, violates subsections 107(a)(C) and 301(c)(1)
of CERCLA, which limit recovery to damages "resulting from
a release." 42 U.S.C. ss 9607(a)(C), 9651(c)(1). Since DOI's
computer submodels require only limited, site-specific data to

calculate damages, NAM contends that they improperly re-
lieve the trustee of its burden to demonstrate that a particu-
lar release in fact caused injury to a specific natural resource.
Further, NAM reasons that even if such submodels could in
theory be used to calculate NRD, the submodels DOI has
developed are too crude to reliably predict injuries to natural
resources that are likely to "result from" releases and are
therefore inconsistent with the command of subsection
301(c)(2) to "identify the best available procedures to deter-
mine ... damages." See Ohio II, 880 F.2d at 462 ("Congress
directed DOI to select ... 'best available' methodologies for
determining damages, 42 U.S.C. s 9651(c)(2), and a proce-
dure that permitted unduly speculative assessments would
not fulfill this intent."). We reject both arguments on their
merits.

(1) Timeliness of challenge

DOI first responds that NAM's challenge is time-barred
under section 113(a) of CERCLA, 42 U.S.C. s 9613(a), which
requires that a petition for review of a final regulation be
brought "within 90 days from the date of [its] promulgation."
DOI reasons that since its 1987 Type A rule relied on the
same kind of predictive computer submodels to establish
causation and injury, NAM's challenge now is untimely be-
cause it should have been brought, if at all, in 1987. DOI is
mistaken.

While an agency need not subject settled policy or estab-
lished statutory interpretation to renewed legal challenge
whenever it revises a regulation, "the period for seeking
judicial review may be made to run anew when the agency in
question by some new promulgation creates the opportunity
for renewed comment and objection." Ohio v. EPA, 838 F.2d
1325, 1329 (D.C. Cir. 1988) [hereinafter Ohio I]. Thus, in Ohio
I we held that, although the petitioner had an opportunity to
comment on the relevant provision in the original regulation,
it was not barred from challenging the provision in the
revised regulation because the agency had republished the
provision, explained it anew and responded to at least one

comment directed to it. Id. at 1328-29; see also Kennecott,
88 F.3d at 1213 ("[J]udicial review of longstanding regulation
is not barred when an agency reopens an issue covered in, or
changes its interpretation of, that regulation; e.g., if an
agency in the course of a rulemaking proceeding solicits
comments on a pre-existing regulation or otherwise indicates
its willingness to reconsider such a regulation by inviting and
responding to comments, then a new review period is trig-
gered."). However, "[t]he 'reopening rule' of [Ohio I] is not a
license for bootstrap procedures by which petitioners can
comment on matters other than those actually at issue, goad
an agency into a reply, and then sue on the grounds that the
agency had re-opened the issue." American Iron & Steel
Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989), cert. denied,
497 U.S. 1003 (1990). Thus, "when the agency merely re-
sponds to an unsolicited comment by reaffirming its prior
position, that response does not create a new opportunity for
review." Kennecott, 88 F.3d at 1213.

Moreover, "the appropriate way to challenge a longstand-
ing regulation on the ground that it is 'violative of statute' is
ordinarily 'by filing a petition for amendment or rescission of
the agency's regulations, and challenging the denial of that
petition.' " Id. at 1214 (quoting Public Citizen v. Nuclear
Regulatory Comm'n, 901 F.2d 147, 152 (D.C. Cir.), cert.
denied, 498 U.S. 992 (1990)). But "where an agency reit-
erates a rule or policy in such a way as to render the rule or
policy subject to renewed challenge on any substantive
grounds, a coordinate challenge that such a rule or policy is
contrary to law" need not proceed by amendment or rescis-
sion petition. Public Citizen, 901 F.2d at 152-53. In such
circumstances, to require that an administrative petition pre-
cede the "coordinate challenge" to the lawfulness of the
agency's provision "would be a waste of time and resources."
Kennecott, 88 F.3d at 1214.

An agency may be deemed to have "constructively re-
opened" a previously unchallenged decision if its original
rulemaking did not give adequate notice or incentive to

contest the agency's decision. For example, as a result of the
partial invalidation of the 1986 Type B rule in the Ohio II
litigation,

our invalidation of that rule might have changed the
stakes of a court challenge. In this situation, we would
likely hold that Interior's adherence to its resolution of
certain issues that arose in the course of the 1986
proceeding was, even if not expressly reopened in its
1994 rulemaking, constructively reopened by the change
in regulatory context. For us to foreclose review of the
agency's decision to adhere to the status quo ante under
changed circumstances, on the grounds that the agency
had not evidenced a willingness to reconsider the issue,
would be to deny the significance of our own earlier
ruling.

Kennecott, 88 F.3d at 1214. Thus, "[b]efore any litigant
reasonably can be expected to present a petition for review of
an agency rule, he first must be put on fair notice that the
rule in question is applicable to him." Recreation Vehicle
Indus. Ass'n v. EPA, 653 F.2d 562, 568 (D.C. Cir. 1981).
Accordingly, in Recreation Vehicle the court held that be-
cause it was unclear that EPA's final rule on noise emission
levels for medium and heavy trucks applied to motor homes,
"[t]he agency cannot now take advantage of the obscurity of
its intentions in order to defeat [the petitioner's] rights
statutorily conferred." Id.

Here, DOI's substantial revisions to the Type A procedures
significantly altered the "regulatory context." In particular,
the circumstances in which a trustee may elect to use Type A
procedures to calculate damages have been significantly modi-
fied by the 1996 revisions. For example, a trustee may now
supplement Type A procedures with selected Type B proto-
cols, it may use Type A procedures in circumstances where
species mortality may not be the anticipated principal adverse
effect, it may use Type A procedures even if the release does
not result in closing a fishing, beach or hunting area and it

may now utilize Type A procedures for releases in both Great
Lakes and coastal and marine environments. Compare 43
C.F.R. s 11.33 (1987) with 43 C.F.R. ss 11.34, 11.35, 11.36,
11.42(b) (1996).6 Thus, although DOI may not have intended
to reopen the issue of the predictive aspect of its computer
submodels' calculations of injury and causation, see 1996 Type
A rule, 61 Fed. Reg. at 20,582, the different regulatory
context wrought by the 1996 rule "significantly alter[ed] the
stakes of judicial review," Kennecott, 88 F.3d at 1227, and
thereby constructively reopened to challenge the predictive
nature of the computer submodels.
________
6 Kennecott also holds that there is no "constructive reopening" if
"parties had adequate notice of a forthcoming change that might
alter their incentive to seek judicial review." 88 F.3d at 1214.
There, because potential litigants were on notice during the pen-
dency of legal challenges to DOI's Type B rule (i.e., Ohio II) "that
restoration cost rather than market value could become the pre-
dominant basis for damage assessments," we held that litigants
"had an ample incentive at that time [i.e., before 1989 decision in
Ohio II] to protest any provision [of the 1986 Type B rule] that
might inflate restoration costs." Id. at 1215.

This case is distinguishable. Although DOI issued an advance
notice of proposed rulemaking (ANPR) for the Great Lakes proce-
dures in June 1988 (see Natural Resource Damage Assessments, 53
Fed. Reg. 20,143, 20,143-46 (1988)) while our review of the 1987
Type A rule was still pending, we do not believe that the ANPR was
sufficient to put NAM or other interested parties on notice that the
yet-to-be-developed Type A procedures for the Great Lakes would
permit calculation of NRD for a release without on-site verification
of injury and causation. In contrast to the Type B provisions at
issue in Kennecott, the Great Lakes submodels were not a part of
the Type A rule that DOI initially promulgated in 1987. Thus,
unlike the Ohio II challenge, the Colorado litigation did not alert
NAM and other potentially interested parties that a vestigial provi-
sion of the 1987 rule might have added significance as a result of
that litigation. Therefore, Recreational Vehicles rather than Ken-
necott supplies the rule of decision: "Before any litigant reasonably
can be expected to present a petition for review, he first must be
put on fair notice that the rule in question is applicable to him."
653 F.2d at 568.

(2) Merits of challenge

DOI fares better responding to the merits of NAM's chal-
lenge--that CERCLA sections 107(a)(C) and 301(c)(1) autho-
rize a trustee to recover damages only for those injuries
"resulting from ... a release"; DOI's Type A procedures
permit a trustee to recover damages without any on-site,
empirical verification that injury has in fact "result[ed] from"
a particular release; therefore, DOI's predictive damage cal-
culators are violative of CERCLA.

Contrary to NAM's contentions, we find nothing in the
relevant provisions of CERCLA that requires greater proof
of causation and injury than is provided by DOI's predictive
computer submodels. Regarding causation, this court has
repeatedly held that CERCLA is ambiguous on the precise
question of what standard of proof is required to demonstrate
that natural resource injuries were caused by, or "result[ ]
from," a particular release. See Ohio II, 880 F.2d at 472
("[W]hile we agree with petitioners that Congress expressed
dissatisfaction with the common law as a norm in several
areas of damage assessment, we conclude that CERCLA is at
best ambiguous on the question of whether the causation-of-
injury standard under s 107(a)(C) must be less demanding
than that of the common law."); Kennecott, 88 F.3d at 1224
("CERCLA left it to Interior to define the measure of dam-
ages in natural resources damage assessment cases....
While the statutory language requires some causal connection
between the element of damages and the injury--the dam-
ages must be 'for' an injury 'resulting from a release of oil or
a hazardous substance'--Congress has not specified precisely
what that causal relationship should be.") (citation omitted).

Similarly, we find nothing in the "resulting from" language
of subsections 107(a)(C) and 301(c)(1), or other provisions of
CERCLA, to indicate that the Congress unambiguously in-
tended a particular kind or quantity of causation and injury
proof as a prerequisite to recovery of NRD. While we have
noted that the "best available procedures" language of sub-

section 301(c)(2) indicates that it would be inconsistent with
CERCLA to permit "unduly speculative assessments," Ohio
II, 880 F.2d at 462, we have never held that simply because
assessments procedures are in some measure "speculative" or
"predictive" they are contrary to CERCLA's "best available
procedures" admonition. Rather, predictive submodels that
represent rational scientific judgments about the probability
that a particular release will cause a specific type and amount
of injury are consistent with the Congress's intent to develop
a "standardized system for assessing such damage which is
efficient as to both time and cost." S. Rep. No. 96-848, at 85
(1980); 7 cf. Ohio II, 880 F.2d at 455 ("[S]upport for the
proposition that Congress adopted common-law damage stan-
dards wholesale into CERCLA is slim to nonexistent.").

Moreover, contrary to NAM's suggestions, the fact that the
Congress may have generally viewed recovery of NRD as a
"compensatory remedy"--see 1996 Type A rule, 61 Fed. Reg.
at 20,582; 42 U.S.C. s 9607(f)(1)--does not mean that the
Congress intended to require adducement of a particular
quality and quantity of proof of injury, loss or destruction
before allowing recovery. Rather, DOI developed the Type A
procedures so that the public would be compensated for the
NRD resulting from minor spills; the kind of spill ill suited
for the expensive and resource-intensive Type B procedures.
Cf. 1996 Type A final rule, 61 Fed. Reg. at 60,572 ("Because
of the cost involved in performing site-specific type B studies,
trustees have rarely pursued damage claims for minor releas-
es.").

Accordingly, we proceed to the second step of the Chevron
analysis, where "we ask whether [DOI] has adopted a reason-
able interpretation of the statute--that is whether the agency
considered the matter in a detailed and reasoned fashion and
whether the interpretation is arguably consistent with the
underlying statutory scheme in a substantive sense." Kenne-
________
7 As we observed in Colorado, "[b]ecause the House concurred in
the Senate bill [that became CERCLA] without amendment, see 126
Cong. Rec. 31,950-82 (1980), th[is] Senate report is powerful evi-
dence of congressional intent." 880 F.2d at 487.

cott, 88 F.3d at 1206 (internal quotations omitted); accord
Ohio II, 880 F.2d at 441 ("If ... the statute is ambiguous or
silent on a particular issue, this court must assume that
Congress implicitly delegated to the agency the power to
make policy choices that represent a reasonable accommoda-
tion of conflicting policies that are committed to the agency's
care by the statute.... In that event, the court must defer
to the agency's interpretation of the statute so long as it is
reasonable and consistent with the statutory purpose.").8 Ac-
cording DOI's interpretation the deference it is due under
Chevron step two, we conclude that DOI's reliance on pre-
dictive computer submodels to establish causation and injury
is both reasonable and consistent with the commands of
CERCLA.

Subsection 301(c)(2), 42 U.S.C. s 9651(c)(2), the only
CERCLA provision that speaks directly to the form and
content of Type A procedures, states that the "regulations
shall specify ... standard procedures for simplified assess-
ments requiring minimal field observation, including estab-
lishing measures of damages based on units of discharge or
release or units of affected area ...." (emphasis added).
________
8 Nor can our decision in General Electric Co. v. United States
Department of Commerce, 128 F.3d 767 (D.C. Cir. 1997), be read to
require a different conclusion here. In General Electric we were
asked to pass on the National Oceanic and Atmospheric Administra-
tion's (NOAA's) regulation regarding NRD claims for releases of oil
or petroleum products covered by the Oil Pollution Act of 1990
(OPA). While we upheld NOAA's determination that its computer
submodels should be " 'reliable and valid for the particular inci-
dent,' " 128 F.3d at 772 (quoting 15 C.F.R. s 990.27(a)(3)), we did
not conclude that such validation procedures were a necessary
feature of the regulations authorized by OPA, nor did we suggest
that the related but independent regulatory scheme established by
CERCLA contained any such requirement. Further, although we
briefly noted that NOAA's regulations provided a sufficient stan-
dard by which to assess the agency's exercise of discretion in
calculating damages from oil releases, 128 F.3d at 778-79, we did
not suggest that such a provision was essential for a court to assess
the reasonableness and accuracy of damage calculations.

DOI's Type A submodels appear consistent with the charge to
develop standardized and simplified assessment procedures
that require minimal field observation and that estimate
damages according to the type, amount (i.e., "units of dis-
charge or release"), location (i.e., "units of affected area") and
other objective characteristics of a release. As DOI itself
observed, "[i]nherent in the concept of developing unit values
from existing studies is the notion of making assumptions in
the absence of empirical data and applying average values
across a range of nonidentical items." 1996 Type A rule, 61
Fed. Reg. at 20,571. The Senate committee that favorably
reported on the Senate bill that became CERCLA also envi-
sioned streamlined Type A procedures that would "require as
little fieldwork as possible, and rely on a combination of
habitat values, tables of values for individual species, and
previously conducted surveys and laboratory studies, related
to units of discharge or units of affected area." S. Rep. No.
96-848, at 86; cf. Colorado, 880 F.2d at 489-90 (declining to
"second-guess DOI's technical determination" to use comput-
er submodels, notwithstanding legislative history indicated
use of tables would be consistent with congressional intent).
Thus, DOI's interpretation of subsection 301(c)(2)(A) to per-
mit the use of predictive computer submodels to determine
causation and injury is plainly reasonable. To the extent that
the "resulting from" language of subsections 107(a)(C) and
301(c)(1) suggests a need for more definite proof of injury and
causation than is suggested by subsection 301(c)(2)(A), we
find that DOI's decision to address the potential inconsistency
in legislative purpose by development of predictive computer
submodels is "a reasonable accommodation of conflicting poli-
cies that are committed to the agency's care by the statute."
Ohio II, 880 F.2d at 441.9
________
9 DOI explained its resolution of the potentially conflicting com-
mands of subsections 107(a)(C), 301(c)(1) and 301(c)(2)(A) as follows:

There is a tension between the statutory provision requiring
trustees to demonstrate that injury "resulted from" a release
and the provision requiring the development of simplified as-
sessment procedures that involve "minimal field observation."
As noted in the cases cited by commenters, the requirement

Nor is NAM's assertion that it is unreasonable for DOI to
require site-specific verification of damage, i.e., a "reality
check," for its Type B procedures but not for its Type A
procedures persuasive. The assertion ignores the significant
differences between Type A and Type B procedures that both
the text and the history of CERCLA affirm. In contrast to
the "standard[ized]" procedures called for in subsection
301(c)(2)(A), the Type B procedures are "for conducting as-
sessments in individual cases to determine the type and
extent of short- and long-term injury, destruction, or loss."
42 U.S.C. s 9651(c)(2)(B) (emphasis added). The legislative
history of subsection 301(c)(2) indicates that the Type A
procedures are intended "to effectively deal with damage
assessment in most 'minor' releases of hazardous material," S.
Rep. No. 96-848, at 86 (1980), whereas the Type B proce-
________
that trustees demonstrate that injury resulted from the release
indicates that Congress intended that natural resource damage
liability be compensatory. PRPs are to be held liable not just
because they are responsible for a release but because they are
responsible for a release that caused an adverse effect. On the
other hand, by requiring the development of type A proce-
dures, Congress recognized that assessment work can be ex-
pensive and time consuming. In the case of minor releases, it
is often not cost-effective or feasible to conduct more than
minimal field observations. The Department has struggled to
resolve the tension between these two statutory requirements
by developing Type A procedures that rely on computer models
to predict actual site-specific effects to the maximum extent
practicable but do not require on-site verification of the models'
injury predictions.

* * *

In fact, as discussed above, the legislative history of
CERCLA suggests that the Department would have been
justified in developing a look-up table or compensation formula
as a type A procedure. Instead, the type A models use both
site-specific information provided by the trustees and biological
and environmental information about the spill site contained in
the database to approximate more precisely the actual effects
of the release.

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

dures are needed to address "large or unusually damaging
releases and would be used to guide the site-specific damage
assessment," id. We therefore agree with DOI that the text
and the history of subsection 301(c)(2) fully support its deci-
sion to insist on a "reality check" only when the more
extensive and individually-tailored Type B procedures are
used.

In addition, the restrictive interpretation of subsections
107(a)(C) and 301(c)(1) that NAM urges here ignores the
purpose and effect of subsection 301(c)(2), which plainly in-
tends a distinction between the two types of procedures. As
we have repeatedly counseled, such an interpretation, which
essentially deprives one provision of its meaning and effect so
that another provision can be read as broadly as its language
will permit, is inconsistent with the Congress's intent as well
as our Chevron analysis. Cf. Halverson v. Slater, 129 F.3d
180, 185 (D.C. Cir. 1997) (rejecting agency interpretation of
its general delegation provision because interpretation would
render more specific and directly applicable delegation provi-
sion meaningless); Watt v. Alaska, 451 U.S. 259, 267 (1981)
("We must read the statutes to give effect to each if we can
do so while preserving their sense and purpose."). Thus,
NAM's suggested resolution of the potential conflict in pur-
pose posed by subsections 107(a)(C), 301(c)(1) and 301(c)(2),
would once again improperly call for us to give the "resulting
from" language of subsections 107(a)(C) and 301(c)(1) a more
restrictive meaning than the Congress intended. Cf. Ohio II,
880 F.2d at 446 n.14 ("Industry Intervenors advance a related
argument, to the effect that Congress' choice of the word
'damages' in s 107(a)(C) should be read to incorporate the
common-law meaning of the term. In the first place, this
argument loads a great deal of baggage onto an everyday
word which has long since transcended its origins and is now
defined in Webster's Dictionary as 'compensation in money
imposed by law for loss or injury.' ... Moreover, as our
examination of CERCLA's legislative history indicates, ...
Congress' dissatisfaction with the common law provided a
central motivation for enacting CERCLA.") (internal citations
omitted). Accordingly, given the interrelated and cross-

referenced nature of CERCLA subsections 107(a)(C),
107(f)(1), 301(c)(1) and 301(c)(2), we find that DOI's decision
to require a "reality check" for Type B but not for Type A
procedures reads the provisions in an appropriately harmoni-
ous way. Cf. id. at 447 ("Indeed, the fact that subsection
(f)(1) itself explicitly cross-references subsection (a)(C) as the
source of liability indicates Congress' conscious design to read
the two subsections as compatible and complementary: liabili-
ty for 'damages is established in subsection (a)(C), while
subsection (f)(1) orders DOI not to place a restoration-cost
ceiling on the 'measure of damages.' ").

NAM's other arguments, attacking the accuracy and relia-
bility of the submodels' predictions of injury and causation,
are equally unpersuasive. In American Iron & Steel Insti-
tute v. EPA, 115 F.3d 979 (D.C. Cir. 1997), we rejected a
similar challenge, noting that

[p]ossessing imperfect scientific information, [the agency]
had to decide whether to proceed on that basis or invest
the resources to conduct the perfect study. It chose to
do the former. This is the type of decision to which this
court will generally apply the deferential standard of 5
U.S.C. s 706(2)(A).... Our deference, however, is not
without limits. The agency's choice will be reversed as
arbitrary and capricious if there is "simply no rational
relationship" between the model chosen and the situation
to which it is applied.

115 F.3d at 1004; cf. Kennecott, 88 F.3d at 1225 ("Interior has
balanced the need for an early, rough estimate against the
danger of that estimate being too rough. We must defer to
the agency's decision about how to strike that balance unless
it is unreasonable."). Because DOI's Type A submodels are
at least as scientifically rational and sophisticated as those we
upheld in American Iron, we find no merit in NAM's conten-
tions that the submodels permit "unduly speculative assess-
ments" in contravention of the requirement that DOI "identi-

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

Finally, we note that nothing in the Type A regulations
prevents a PRP that believes the submodels have erroneously
found injury and causation from contesting the submodels'
calculations--either with its own site-specific studies or with
other evidence that calls into question the predictive calcula-
tions of the submodels. The Type A rule also enables a PRP
that suspects that a Type A assessment overstates the actual
loss to insist on Type B procedures. See 43 C.F.R.
s 11.35(b). Indeed, DOI revised its final rule

to require trustees to perform a preliminary application
of the model and make the results available for public
comment before presenting a damage claim. Therefore,
PRPs will have an opportunity to evaluate the injury
projections. They can then decide whether they have
information that indicates that the projections are wrong
and that the user inputs need to be modified or that type
B procedures should be used.

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

B. Replacement and Acquisition Alternatives

NAM next argues that CERCLA subsections 107(f)(1) and
301(c)(2) require that Type A procedures consider the costs of
"replacement" or "acquisition of equivalent resources." 11 Be-
________
10 The computer submodels, contrary to NAM's assertions, do not
dispense with all "field observation" and thereby render superfluous
the Congress's expectation that Type A procedures will require
"minimal field observation." Rather, for each release a number of
site-specific variables must be collected and analyzed in order to
compute damages. While DOI "interprets 'minimal field observa-
tions' to be information that is readily or routinely collected follow-
ing a release," 1996 Type A rule, 61 Fed. Reg. at 20,582, the fact
that it is "readily or routinely collected" does not make it any less
site- or incident-specific. Moreover, as discussed above, the Type A
submodels contain certain safeguards so that they will not be
applied when environmental or other assumptions do not reflect
actual conditions as of the date of the release. See supra Part I.

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

cause DOI's computer submodels do not expressly consider
these costs in their NRD calculus, NAM contends that we
must vacate the Type A rule. We disagree.

The subsection 107(f)(1) spending limitation--i.e., recover-
ies "shall be retained ... for use only to restore, replace, or
acquire the equivalent" of affected resources--does not mean
that a trustee must consider each of the alternative measures
of damages in calculating NRD. Cf. Kennecott, 88 F.3d at
1230 ("Although ... spending priorities may, in turn, imply a
hierarchy in the way trustees should assess damages in the
first place, we do not find [in either the text of 107(f)(1) or in]
the committee report a sufficiently clear statement of Con-
gressional intent necessary to resolve this issue under Chev-
ron step one."). Indeed, the very next sentence of subsection
107(f)(1) declares that "[t]he measure of damages ... shall
not be limited by the sums which can be used to restore or
replace" injured resources, which "carries in it an implicit
assumption that restoration cost will serve as the basic mea-
sure of damages in many if not most CERCLA cases." Ohio
II, 880 F.2d at 446.

More troublesome for DOI, however, is subsection
301(c)(2), which requires that the Type A and B regulations
"take into consideration factors including, but not limited to,
replacement value, use value, and ability of the ecosystem or
________
Sums recovered by the United States Government as trustee
under this subsection shall be retained by the trustee, without
further appropriation, for use only to restore, replace, or
acquire the equivalent of such natural resources. Sums recov-
ered by a State as trustee under this subsection shall be
available for use only to restore, replace, or acquire the equiva-
lent of such natural resources by the State. The measure of
damages in any action under subparagraph (C) of subsection
(a) of this section shall not be limited by the sums which can be
used to restore or replace such resources.

42 U.S.C. s 9607(f)(1) (emphasis added). The pertinent language of
subsection 301(c)(2) recites that Type A and B regulations "shall
take into consideration factors including, but not limited to, replace-
ment value, use value, and ability of the ecosystem or resource to
recover." 42 U.S.C. s 9651(c)(2) (emphasis added).

resource to recover." 12 42 U.S.C. s 9651(c)(2) (emphasis
added). Absent from the list is "acquisition value," whose
inclusion would strengthen the similarity to the spending
limitation imposed by CERCLA subsection 107(f)(1). None-
theless, we agree with DOI that the list may reasonably be
read to require only that a number of different kinds of
values for particular injury components be considered. In-
deed, in Ohio II, we noted that subsection 301(c)(2) gave DOI
discretion to fashion an appropriate measure of damages in a
particular case although the discretion was circumscribed by
the Congress's evident intent "that the measure of damages
reflect a preference for restoration costs, at least where
restoration is feasible and can be performed at a cost not
grossly disproportionate to the use value of the resource."
880 F.2d at 446; cf. S. Rep. No. 96-848, at 86 ("There is a
need for maximum flexibility in the rulemaking proceeding, so
that free scientific discussion will result. Only through this
type of discussion will the agencies be adequately prepared to
select the most accurate and credible damage assessment
methodologies available."). In light of the legislative intent to
confer discretion as to the choice of an appropriate measure
of damages, we assess DOI's interpretation of subsection
301(c)(2) under step two of Chevron.

DOI has defined certain key terms in its regulations:

Injury means a measurable adverse change, either
long- or short-term, in the chemical or physical quality or
the viability of a natural resource resulting either direct-
ly or indirectly from exposure to a discharge of oil or
release of a hazardous substance, or exposure to a prod-
uct of reactions resulting from the discharge of oil or
release of a hazardous substance. As used in this part,
injury encompasses the phrases "injury," "destruction,"
and "loss." ...

* * *

________
12 NAM does not argue that the Type A rule omits consideration
of "use value," which is apparently provided by the Compensable
Value Submodel. See 1996 Type A rule, 61 Fed. Reg. at 20,566-67.

Replacement or acquisition of the equivalent means
the substitution for an injured resource with a resource
that provides the same or substantially similar ser-
vices....

* * *

Restoration or rehabilitation means actions undertak-
en to return an injured resource to its baseline condition,
as measured in terms of the injured resource's physical,
chemical, or biological properties or the services it previ-
ously provided....

43 C.F.R. ss 11.14(v) (emphasis added), 11.14(ii), 11.14(ll)
(1996).13 Relying on these definitions, DOI contends that its
Restoration Submodel--which considers the costs and bene-
fits of replacing an injured resource (e.g., restocking fish)
against the costs and benefits of restoring the resource
through natural recovery (e.g., allowing spawning and other
________
13 While DOI's regulations equate replacement with acquisi-
tion, the Congress apparently believed that the terms as used in
CERCLA subsection 107(f)(1) had somewhat different meanings:

[T]he primary purpose of the resource damage provisions of
CERCLA is the restoration or replacement of natural re-
sources damaged by unlawful releases of hazardous substances.
However, ... a situation could arise in which the amount of
damages caused by a release of hazardous substances is in
excess of the amount that could realistically or productively be
used to restore or replace those resources....

The Committee therefore intends [that] any excess funds
recovered shall be used, in such an instance, for the third
purpose spelled out in the language of the amendment, which is
'to acquire the equivalent of the damaged resource.' ... The
Committee expects that any such acquisition would provide
resources of an equivalent nature at a location as near as
reasonably possible to the site at which the damages occurred.

H.R. Rep. No. 99-253, pt. 4 at 50 (1985). Because we conclude that
subsection 107(f)(1) does not speak directly to the issue of whether
the Type A procedures must consider replacement and acquisition
values when calculating damages under subsection 301(c)(2), howev-
er, we do not find in this passage an intent to assign replacement
and acquisition independent meanings in subsection 301(c)(2).

natural processes to replace destroyed fish stocks)--satisfies
the subsection 301(c)(2) requirement that the Type A regula-
tions consider "replacement value." 14 See, e.g., The
CERCLA Type A Natural Resource Damages Assessment
Model for Coastal and Marine Environments, Technical Docu-
mentation, Vol. 1, s 5.4.3. DOI therefore reasons that its
decision not to develop independent Replacement and Acqui-
sition Submodels for its Type A calculations does not render
its rule defective but merely less ambitious than it might have
been--which, as we have previously held, is not a ground for
reversal. See Colorado, 880 F.2d at 486 ("Despite the limited
scope of the type A rules, DOI's actions are a sustainable
response to an ambiguous statutory mandate in an area of
scientific uncertainty.").

NAM, on the other hand, contends that DOI's consideration
of replacement values is insufficient to satisfy subsection
301(c)(2) and, in any event, DOI's computer submodels do not
meet the requirements of subsection 107(f)(1) because they
wholly fail to consider acquisition values. Regarding the
latter, because the Congress has omitted any reference to
acquisition values in subsection 301(c)(2), DOI reasonably
accords significance to the omission and interprets it not to
require consideration of off-site, acquisition alternatives to
restoration. Nor can our decision in Colorado be read to
command a different result. There, we held that DOI's
failure to include "replacement or restoration values in its
type A procedures" contravened "the clear mandate of Con-
gress as interpreted in Ohio." 880 F.2d at 491 (emphasis
added). We did not then, and we do not now, conclude that
subsections 301(c)(2) and 107(f)(1) require the regulations to
consider acquisition values.
________
14 Replacement or acquisition may be the only feasible remedies if
the natural resources have been destroyed or irreparably injured.
See 1996 Type A rule, 61 Fed. Reg. at 20,601 ("[T]he model
calculates a loss and allows only one-to-one replacement, with
correction for restocking survival, of missing individuals.... The
[habitat restoration] models assume that all fish and shellfish killed
are restocked, if stocks are available.") (emphasis added; quoted
sentences from responses to two different comments).

Finally, although DOI's final rule does an imperfect job of
explaining how its Type A procedures incorporate consider-
ation of replacement values--which it seems to refer to as
"active habitat restoration" costs, see 1996 Type A rule, 61
Fed. Reg. at 20,601-02--any explanatory deficiencies can be
remedied by DOI at the next biennial review. Accordingly,
we conclude that DOI's Type A rule satisfies the requirement
of subsection 301(c)(2) that it "take into consideration ...
replacement value." Consistent with our earlier holding, its
interpretation ensures "that the measure of damages reflect a
preference for restoration cost, at least where restoration is
feasible and can be performed at a cost not grossly dispropor-
tionate to the use value of the resource." Ohio II, 880 F.2d
at 446.

C. Relation of Restoration Actions

to Resource "Services"

NAM next asserts that DOI's Type A submodels are
arbitrary and capricious--i.e., violate 5 U.S.C. s 706(2)(A)--
because they do not evaluate restoration alternatives in terms
of the effect such action may (or may not) have on natural
resource "services." See supra note 4. As DOI properly
notes, however, NAM failed to raise this argument in the
rulemaking proceedings below, and we find no reason to
excuse NAM's failure to exhaust its administrative remedies.

NAM contends that because the relationship between ser-
vices and restoration was "a general point applicable to any
NRD assessment," because it "had been emphasized re-
peatedly in prior rulemakings," because comments in the
rulemaking regarding the Compensable Value Submodel indi-
cated that the relationship between resource services and
NRD was essential in developing "nonconsumptive wildlife
values" and because "other documents in the record high-
lighted the services concept," DOI was given a "fair opportu-
nity" to consider the issue below. Failing that, NAM argues
that we should exercise our discretion and excuse NAM's
failure to exhaust. NAM Reply Br. at 10-11.

The fact that, buried in hundreds of pages of technical
comments NAM submitted, some mention is made of the
resource services concept and its relation to compensable
values (rather than restoration alternatives) is insufficient to
preserve the issue for review on appeal. "Our cases ...
require complainants, before coming to court, to give the
[agency] a fair opportunity to pass on a legal or factual
argument." Washington Ass'n for Television & Children v.
FCC, 712 F.2d 677, 681 (D.C. Cir. 1983) (emphasis added;
quotation marks omitted); accord Omnipoint Corp. v. FCC,
78 F.3d 620, 635 (D.C. Cir. 1996) ("As a general rule, claims
not presented to the agency may not be made for the first
time to a reviewing court."); United States v. L.A. Tucker
Truck Lines, 344 U.S. 33, 37 (1952) ("Simple fairness ...
requires as a general rule that courts should not topple over
administrative decisions unless the administrative body not
only has erred but has erred against objection made at the
time appropriate under its practice."). Thus, we decline to
find that scattered references to the services concept in a
voluminous record addressing myriad complex technical and
policy matters suffices to provide an agency like DOI with a
"fair opportunity" to pass on the issue.

Nor do we find any ground to excuse NAM's failure to urge
its objection below. The fact that the Kennecott decision was
not known on the date the comment period closed is unavail-
ing. Kennecott did not suggest a new basis for challenging
DOI's Type A rule; it simply reaffirmed that an agency's
regulations must be internally consistent to guard against
double recovery. 88 F.3d at 1220 ("In invalidating the regu-
lations, we do not mean to suggest that CERCLA requires or
forbids any particular measure of damages. The problem
here is not with the standard adopted, but with the consisten-
cy between the language of the regulations and the pream-
ble's explanation of what Interior did.") (emphasis added).15
________
15 American Maritime Association v. United States, 766 F.2d
545, 566 n.30 (D.C. Cir. 1985), is inapposite. There the agency
made a significant change between its proposed rule and the final
interim rule and thus the complainant did not have the opportunity

D. Lost Assimilative Capacity

Continuing its attack on the content and function of DOI's
Restoration Submodel, NAM next argues that DOI's inclusion
of calculations for lost "assimilative capacity"--i.e., the pre-
release ability of an environment "to repair itself by digest-
ing, degrading, transforming, absorbing, or otherwise elimi-
nating the pollutants placed in it," 1996 Type A rule, 61 Fed.
Reg. at 20,599--contravenes CERCLA. It contends that
such losses are "unduly speculative" because there may never
be another release of the same or similar hazardous sub-
stances in the affected environment and, even if they are not
overly speculative, DOI's calculation methodology is funda-
mentally flawed. Both contentions are without merit.

Subsection 301(c)(2) requires the Type A and Type B
regulations to "take into consideration ... [the] ability of the
ecosystem or resource to recover." 42 U.S.C. s 9651(c)(2).
Consideration of lost assimilative capacity meets the com-
mand by assessing the cumulative effects a release may have
on a resource's ability to recover and by preventing erosion of
baseline conditions. Thus, DOI's interpretation of subsection
301(c)(2) to permit assessment of lost assimilative capacity
damages is plainly not unreasonable and instead is consistent
with (if not required by) the Congress's intent to recover for
the full damages resulting from a release. See Ohio II, 880
F.2d at 464 (CERCLA intends recovery for all properly
calculated losses and all kinds of losses reasonably ascribed to
release); Colorado, 880 F.2d at 490-91 (similar); cf. S. Rep.
No. 96-848, at 14 (one reason CERCLA was enacted was
shortcomings of common law and statutory remedies in recov-
ering full compensation). Moreover, contrary to NAM's con-
tentions, the stand-by nature of the resource service does not
make it speculative: "The assimilation of pollutants is a real
service provided by natural resources and is well-founded in
scientific literature." 1996 Type A rule, 61 Fed. Reg. at
20,599. Indeed, the fact that such assimilative capacity ser-
________
to object to the change before seeking judicial review. Here
nothing in the services-restoration relationship was substantively

vice may be called on only in the contingency of a future
release does not render the losses any more speculative than
other kinds of contingent losses for which damages may be
assessed. Cf. Ohio II, 880 F.2d at 474-81 & nn.72-77 (up-
holding use of contingent valuation methodologies, including
assessments of option and existence values, assuming re-
sources may never be visited or used but recognizing stand-
by value to their existence); General Elec. Co. v. United
States Dep't of Commerce, 128 F.3d 767, 772-74 (D.C. Cir.
1997) (upholding NOAA's use of contingent valuation methods
in which individuals assign value to resources "even if they
never plan to make active use of them").16

Nor do we find error in DOI's decision to calculate the
monetary loss resulting from a diminution in assimilative
capacity by extrapolating from the costs of dredging contami-
nated sediment in a nearby area. The standardized and
simplified nature of Type A procedures necessarily dictates
that they rely on data extrapolations to assign values to
particular items of loss. Thus, while we agree with NAM
that (for example) using dredging cost figures from Green
Bay to calculate restoration costs in Chicago may not be the
most accurate method of calculating costs, it is neither unrea-
sonable nor arbitrary and capricious in the context of Type A
assessments. Moreover, the alternative that NAM apparent-
ly urges--barring recovery for such loss absent specific data
on restoration costs for each potential release site--is incon-
________
altered between the notice of proposed rulemaking and the final
rule.

16 In addition, the amended Type A rule does not permit recovery
of lost assimilative capacity in every circumstance. Loss is calculat-
ed "only when there are releases that generate economic damages
related to mortality or loss of production." See 1996 Type A rule,
61 Fed. Reg. at 20,599. While an initial programming error permit-
ted the calculation of such loss in cases where the submodels
predicted no damages related to mortality or loss of production,
DOI has since corrected the error. See Revisions to 1996 Type A
rule, 62 Fed. Reg. at 60,457-58. Thus, NAM's suggestion that
including lost assimilative capacity in the submodels ensures per se
damages in the event of a release is mistaken; only if mortality and
production thresholds are exceeded will assimilative capacity loss be
included in the damages claim.

sistent with the remedial objectives of CERCLA and requires
that Type A procedures provide greater precision in their loss
measurements than CERCLA can reasonably be deemed to
require.17

E. Economic Rent for Commercial

Fishing and Hunting Losses

NAM next assails DOI's inclusion of "economic rent" losses
in its Compensable Value Submodel.18 Its main argument is
________
17 Nor does this conclusion make a PRP an insurer for future
releases as NAM contends. Each subsequent PRP will be respon-
sible for restoring assimilative capacity losses caused by a release
for which it is liable under 42 U.S.C. s 9607(a). Were we to adopt
NAM's interpretation, future PRPs would be responsible for losses
to natural resources that were greater (because of decreased assi-
milative capacity caused by predecessor PRP) than they might
otherwise have been. We can find nothing, nor has NAM referred
us to anything, in CERCLA that requires DOI to favor the current
PRP over a future PRP. Again, the fact that traditional tort
remedies might suggest a different allocation of risks is not disposi-
tive: "We have already noted our disagreement with the proposition
that the strictures of the common law apply to CERCLA." Ohio
II, 880 F.2d at 476.

18 "Economic rent" in this context does not refer to profits earned
in non-competitive markets. Rather, DOI defines "economic rent"
as "the excess of total earnings of a producer of a good or service
over the payment required to induce the producer to supply the
same quantity currently being supplied." Natural Resource Dam-
age Assessments, 51 Fed. Reg. 27,674, 27,691 (1986); 1996 Type A
rule, 61 Fed. Reg. at 20,603 ("In other words, economic rent for
commercially harvested resources is the fee that commercial har-
vesters could pay to the government and still find the harvesting
economically feasible.").

Because DOI assumes that the small releases for which Type A
procedures may be used will generally not cause commercial hunt-
ers and fishers to abandon or downsize their enterprises, any
harvesting losses produced by a release will in fact represent
"economic rent." See 1996 Type A rule, 61 Fed. Reg. at 20,604.
NAM does not challenge the reasonableness of the assumption and

that commercial fishing and hunting losses are injuries of a
"private" nature for which CERCLA does not permit recov-
ery. According to NAM, recovery for such losses, under the
guise of seeking compensation for losses of imputed rent that
a trustee might collect for the privilege to fish and hunt, is
ultra vires. Further, NAM contends that "DOI's calculation
of the amount of damages resulting from lost economic rent is
based on wholly speculative assumptions." NAM Br. 37.
DOI's responses are twofold: (1) NAM's challenge is time-
barred because economic rent losses have been a feature of
DOI's Type B rules since 1986 and were a feature of DOI's
1987 Type A rule; and (2) NAM's arguments are based on
the mistaken premise that all commercial hunting and fishing
losses represent "private" losses.

DOI's timeliness defense fails here for the same reasons
that it failed with respect to NAM's challenge to the absence
of a "reality check" in the Type A procedures: the change in
"regulatory context" and stakes caused by the addition of
Type A procedures for Great Lakes environments and by the
substantial alterations in the procedures for coastal and ma-
rine environments constructively reopened this aspect of the
procedures to challenge.

Regarding the merits, NAM's challenge is apparently pred-
icated on the assumption that because commercial fishing and
hunting enterprises have heretofore not been charged fees for
the full value of their entitlement to fish and hunt in public
aquatic environments covered by the Type A procedures, the
entitlement is a private rather than a public one. We do not
agree.

It is true that CERCLA does not permit private parties to
seek recovery for damages to natural resources held in trust
by the federal, state or tribal governments nor does it allow
public trustees to recover for damages to private property or
other "purely private" interests. See Ohio II, 880 F.2d at 460
("The legislative history of CERCLA further illustrates that
damage to private property--absent any government involve-
________
we see nothing in the record to suggest that DOI's conclusion
resulting from its assumption is unreasonable either.

ment, management or control--is not covered by the natural
resource damage provisions of the statute."); Exxon Corp. v.
Hunt, 475 U.S. 355, 375 (1986) (compensation to "third parties
for damage resulting from hazardous substance discharges
... [is] clearly beyond the scope of CERCLA"). Determin-
ing whether a particular loss is "private" or "public" is the
task with which we are faced here.19

CERCLA defines natural resources to encompass

land, fish, wildlife, biota, air, water, ground water, drink-
ing water supplies, and other such resources belonging
to, managed by, held in trust by, appertaining to, or
otherwise controlled by the United States (including the
resources of the fishery conservation zone established by
the Magnuson-Stevens Fishery Conservation and Man-
agement Act [16 U.S.C.A. ss 1801 et seq.]) any State or
local government, any foreign government, any Indian
tribe, or, if such resources are subject to a trust restric-
tion on alienation, any member of an Indian tribe.

42 U.S.C. s 9601(16) (emphasis added). As noted earlier,
resources must be under the stewardship of a trustee before
damages can be assessed for their injury, loss or destruction.
See supra note 1. A release of hazardous substances in the
Great Lakes or covered coastal and marine environments that
kills fish or game or makes it inedible or unusable for
commercial or other purposes injures natural resources. Cf.
Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 773
(9th Cir. 1994) ("A state has a sovereign interest in natural
resources within its boundaries.").

Because public trustees do not currently charge commer-
cial harvesters access fees above those required to cover ad-
________
19 NAM's reliance on Satsky v. Paramount Communications,
Inc., 7 F.3d 1464 (10th Cir. 1993), is misplaced. The Tenth Circuit
held that suits for injuries to "purely private interests" could not be
barred by a state's recovery of public losses. Id. at 1470. It also
held, however, that to the extent the "claims are for injuries to
interests which all citizens hold in common, and for which the State
has already recovered, the [former] judgement ... acts as a bar."
Id.

ministrative and registration costs, NAM reasons that the
harvesters have converted these public resources into private
property so that any adverse effect a release may have on
harvesting activities represents a "purely private" loss for
which the trustee cannot recover. The fact that commercial
hunting and fishing operations are not presently paying
something (or at least more) for the privilege to exploit public
fish and game stocks does not mean that they have converted
the stocks into private property. Rather, the public custodi-
ans of the resources have determined that the public interest
is served by refraining from charging the commercial enter-
prises for harvesting the public fish and game stocks. Thus
we do not find DOI's conclusion--that if the public cannot use
its resources to foster commercial enterprises, the value of
the resources to the public (as well as to the enterprises) has
been diminished--unreasonable. See 1996 Type A rule, 61
Fed. Reg. at 20,604 ("The governmental regulation of fish and
wildlife harvest implies a public concern that these resources
be managed in order to sustain their contribution to economic
productivity.").

Nor does recovery of imputed rent losses run afoul of the
subsection 107(f)(1) prohibition on double recovery. As the
regulations explain, "[f]or minor releases where damages may
be relatively low and data establishing injury and causation
may be difficult to obtain, ... it is unlikely that commercial
harvesters will go to the expense and trouble to pursue a
legal claim." Id. at 20,604. In addition, "in some cases
commercial harvesters will not have a private cause of action
or their recoveries may be subject to geographic or temporal
limitations." Id. Given the nature of the release for which
damages are assessed, the likelihood of double recovery is
minimal. If a commercial harvester does sue and succeeds in
recovering the public's imputed rent as part of its lost profits,
however, the regulations bar the trustee from including such
losses in its calculation of NRD. Id.; 43 C.F.R. s 11.44(d)
(1996). Moreover, once a state or other public trustee recov-
ers such damages, a private party will be barred by res
judicata from later seeking recovery for the same public
losses. See Alaska Sport Fishing, 34 F.3d at 774 ("[T]he

United States and the state of Alaska, acting as government
trustees, have already recovered for the very same damages
plaintiffs now seek here.... Thus, under the doctrine of res
judicata, plaintiffs are barred from asserting such claims in a
second suit."). Accordingly, DOI's inclusion of economic rent
losses in its Type A submodels cannot reasonably be deemed
to pose a likely risk of double recovery.

Finally, DOI's ancillary attack on the reasonableness of the
assumptions underlying the submodel's calculation of econom-
ic rents also fails. Once again, we can find nothing unreason-
able or irrational in the means by which DOI's Compensable
Value Submodel calculates lost economic rents resulting from
a release. The fact that such imputed rents have not been
collected previously does not ipso facto make their valuation
unduly speculative as the assumption that minor spills will
likely not affect commercial fishing and hunting appears
reasonable. In view of an unchanged activity level, DOI's
derivative conclusion that the harvesting losses represent an
appropriate proxy for lost economic rent cannot be viewed as
irrational. Again, in technical matters it is not our role to
second guess the agency's expert judgments if they are
reasonable and adequately explained. See Troy Corp., 120
F.3d at 283; American Iron & Steel, 115 F.3d at 1004-05.

F. "Best Available Procedures" for Calculating NRD

NAM next seizes on the "best available procedures" lan-
guage of subsection 301(c)(2)--i.e., the Type A and B regula-
tions "shall identify the best available procedures to deter-
mine such [natural resource] damages, including both direct
and indirect injury, destruction, or loss"--and contends that
because DOI used certain inapplicable, outdated or methodo-
logically suspect studies in developing its Type A submodels,
it violated CERCLA's direction to use the "most accurate and
credible damage assessment methodologies available." S.
Rep. No. 96-848, at 86. NAM also suggests that because a
Type A assessment enjoys a rebuttable presumption of cor-
rectness under subsection 107(f)(1), DOI is under a height-

ened obligation to demonstrate the validity and rationality of
its modeling assumptions and their empirical support.20

Technical attacks on the Type A submodels are assessed
under the deferential standard that applies when an agency's
scientific and technical judgment is at issue. See generally
Troy Corp., 120 F.3d at 283; American Iron, 115 F.3d at
1004-05. The "best available procedures" language is neither
defined by statute nor self-defining and so we apply Chevron
step two in assessing whether DOI's decision to include
certain studies complies with subsection 301(c)(2)'s require-
ment that it "identify the best available procedures." See
generally Ohio II, 880 F.2d at 476-78 (concluding DOI's
adoption of contingent valuation methodologies was "best
available procedure" because "the risk of overestimation has
not been shown to produce such egregious results as to
justify judicial overruling of DOI's careful estimate of the
caliber and worth of CV methodology").

NAM's arguments regarding the additional burden an
agency bears when using calculations whose results enjoy a
rebuttable presumption of correctness is beside the point
because the presumption has been established by the Con-
gress, not the agency. See General Electric, 128 F.3d at 771-
72 ("Chemical Manufacturers [applicable test], however, ap-
plies only to rebuttable presumptions created by agencies and
has no applicability where, as here, Congress created the
presumption.").

NAM's argument is also fatally flawed because it reads
"available" out of the subsection 301(c)(2) requirement to
"identify the best available procedures to determine" dam-
ages, a disfavored interpretation under both Chevron steps.
See American Fed'n of Gov't Employees v. FLRA, 798 F.2d
1525, 1528 (D.C. Cir. 1986); cf. Reiter v. Sonotone Corp., 442
U.S. 330, 339 (1979). Thus, while the studies upon which DOI
________
20 NAM also claims that the inclusion of "lost assimilative capaci-
ty" and "economic rent" variables in the Type A submodels violates
the "best available procedures" mandate. As discussed above,
however, we find nothing unreasonable or otherwise insufficient in
DOI's use of these variables.

relies may not use the "best" methodologies and techniques,
they appear to be the "best available," which is all that
CERCLA requires.21

DOI used a number of screening criteria that studies had
to meet before they became part of its submodels' databases.
See 1996 Type A rule, 61 Fed. Reg. at 20,571 ("The Depart-
ment used only studies that: (1) Were based on an extensive
literature review and consultations with relevant governmen-
tal agencies; (2) reasonably represented the natural resource
and public use under investigation; (3) contributed to a
reasonable representation of the different regions included in
the model; (4) were conducted by a recognized university-
associated researcher or established consulting firm; and (5)
used appropriate valuation methodologies."). These criteria
assisted DOI in determining which studies were sufficiently
reliable to use in its computer submodels. Thus, DOI's
decision to use studies assigning values to recreational salmon
and trout fishing in several western states in order to develop
comparable values for such activities in the Great Lakes
region was not unreasonable in view of the fact that there
were no other studies available that satisfied the screening
criteria and focused on the Great Lakes. Similarly, the fact
that DOI used nine freshwater fishing studies, in addition to
twenty-one salt water fishing studies, to produce averaged
values for recreational fishing in coastal and marine environ-
ments can hardly be viewed as irrational or unreasonable.
Again, DOI reasonably determined that the "best available"
values could more accurately be developed by averaging a
________
21 Had DOI chosen not to assign any values to damages because
of the age, methodologies, etc. of certain studies, it would have less
fully effected a fundamental purpose of CERCLA--i.e., to ensure
the full recovery of the costs associated with a release of hazardous
substances. Cf. Ohio II, 880 F.2d at 478 (concluding that in light of
"CERCLA's preference for restoration" it would not make sense to
insist on more stringent pre-release contingent valuation surveys to
satisfy "best available procedures" requirement of subsection
301(c)(2)); Colorado, 880 F.2d at 490-91; S. Rep. No. 96-848, at 14
(observing one reason CERCLA was enacted is that "the compensa-
tion ultimately provided ... is generally inadequate").

broader range of values than the saltwater studies alone
would have allowed.

Further, DOI's decision to arrive at average recreational
values for the Great Lakes beaches by including four studies
of recreational values for beaches in Hawaii and Florida, in
addition to seven other studies of non-Great Lakes beach
values, appears reasonable, especially given the absence of
any suitable studies of Great Lakes beaches themselves.
Once again, averaging values from such geographically di-
verse studies appears to have been a rational way in which to
arrive at the "best available" values.22

We also find no error in DOI's decision to use older studies
that rely on contingent valuation or travel cost methodologies.
Again, DOI was confronted with a choice: utilization of older,
less methodologically reliable studies to assign values for
particular losses, guesswork to produce the appropriate val-
ues or their exclusion from its computer submodels. DOI's
expert judgment that it was best to proceed in reliance on
available studies is plainly a permissible interpretation of the
subsection 301(c)(1) charge to "identify the best available
procedures to determine" NRD.

We also find reasonable DOI's decision to include wildlife
viewing losses in its submodels. Because no studies existed
that quantified or qualified the correlation between wildlife
population losses and wildlife viewing losses, DOI reasonably
assumed a one-to-one, linear correlation. In the absence of
any studies to suggest that such linear assumptions overstate
(or understate) loss, we can find no error in DOI's determina-
tion that population losses would typically result in a corre-
sponding loss in viewing opportunities.

Finally, we decline to second-guess DOI's technical judg-
ments as to toxicity values for certain types of releases. See
________
22 Also, as noted in DOI's Brief, had the Florida and Hawaii
studies been excluded, the average values in the Type A submodels
would have been affected by a mere $.03 per day; hardly a basis to
conclude that inclusion of the studies skewed the values in DOI's
submodels. DOI Br. at 43.

Troy Corp., 120 F.3d at 283; American Iron, 115 F.3d at
1004-05. The fact that DOI's and NAM's experts disagree on
the proper toxicity values for certain substances and concen-
trations does not render DOI's judgment defective.23 Cf.
Ohio II, 880 F.2d at 465 (rejecting challenge to use of
discount rate in calculating net present value of loss because
"petitioners have given us no reason to substitute our judg-
ment for that of Interior and of the Office of Management
and Budget, whose circular provided the ten percent figure
chosen"). Accordingly, once again we conclude that DOI's
reconciliation of the "best available procedures" language and
"full recovery" goals of CERCLA is reasonable and therefore
sustainable. See Ohio II, 880 F.2d at 441, 464.

G. Application of Type A and Type B

Procedures to Same Release

NAM next challenges DOI's Type A rule because it permits
trustees to use both Type A and Type B procedures to
calculate NRD for the same release, which (1) violates the
clearly expressed intent of the Congress that the two types of
procedures be "alternative" rather than complementary pro-
cedures, (2) conflicts with the use of average valuations in the
Type A computer submodels and (3) contravenes the regula-
tory requirement that Type B procedures not be employed to
calculate compensable values until they have been validated
for a specific incident by a "reality check." DOI responds
that NAM's second argument is not ripe for resolution and
that all of NAM's arguments are otherwise lacking in merit.
We agree that NAM's arguments are without merit.24
________
23 NAM also criticizes DOI for including toxicity values for cop-
per, zinc and mercury despite DOI's intent to remove such toxicity
values for pure metals from its submodels' databases. See 1996
Type A rule, 61 Fed. Reg. at 20,591. DOI has since acknowledged
the error and removed the values from its submodels. See Revi-
sions to 1996 Type A rule, 62 Fed. Reg. at 60,458.

24 DOI also appears to suggest that at least a portion of NAM's
challenge is untimely because the 1987 Type A rule allowed com-
bined use of Type A and B procedures in certain circumstances.

(1) Legislative intent and combined application

of Type A and Type B procedures

Subsection 301(c)(2) of CERCLA, as discussed and quoted
above (see supra page 5), distinguishes, both textually and
structurally, between Type A "standard procedures" and
Type B "alternative protocols for conducting assessments in
individual cases." 42 U.S.C. s 9651(c)(2). The distinctions
were intended:

This subsection calls for the promulgation of two types
of regulations. First, a simplified type of regulation
[Type A] is necessary to effectively deal with damage
assessment in most 'minor' releases of hazardous materi-
als....

The other type of regulations [Type B] would be
employed in large or unusually damaging releases and
would be used to guide the site-specific damage assess-
ment. Such a regulation would contain protocols for
field assessment of the type and extent of short- and
long-term damage and methodologies for determining
their value.

The protocols for field assessments should provide
uniform instructions that will allow for thorough site
investigation in a cost-effective manner. Sampling and
statistical procedures should be clearly defined. The
methods for determining the geographical extent of dam-
age should also be enumerated. It is the intent of the
legislation that these protocols be designed to accommo-
________
See DOI Br. 48 n.17. We reject the argument for the same reason
we rejected it with respect to the challenges discussed supra in
Parts II.A and II.E. Further, we note that the circumstances in
which a combined Type A and Type B assessment may be used
have been significantly expanded by the 1996 rule compared to the
1987 rule. Compare 1996 Type A rule, 61 Fed. Reg. at 20,610 with
1987 Type A rule, 52 Fed. Reg. at 9048-49. Moreover, DOI
appeared to reopen the issue: "The Department explicitly limited
this rulemaking to four issues: ... the conditions for combined use
of type A and type B procedures;...." 1996 Type A rule, 61 Fed.
Reg. at 20,570.

date the majority of potential release sites, including
coastal estuaries, open water, freshwater rivers, lakes
and wetlands.

S. Rep. No. 96-848, at 86; accord Colorado, 880 F.2d at 487
("[A]lthough Congress did not have a specific intent regard-
ing the proper scope of type A rules, it envisioned generally
that type A rules would cover most minor releases and type B
rules would cover large or unusually damaging releases.").

Nevertheless, subsection 107(f)(2)(C) does not differentiate
between the two types of procedures with respect to the
rebuttable presumption: "Any determination or assessment
of damages to natural resources ... made by a Federal or
State trustee in accordance with the regulations promulgated
under section 9651(c) of this title shall have the force and
effect of a rebuttable presumption." 42 U.S.C.
s 9607(f)(2)(C) (emphasis added). Significantly, the Congress
indicated that the rulemaking required by subsection
301(c)(2) should emphasize flexibility and development of a
variety of measurement tools for a trustee's use:

Investigations by the Committee on Environmental
and Public Works revealed the need for an improved, fair
and expeditious mechanism for dealing with natural re-
source damages caused by releases of hazardous materi-
als. The principal hindrance to attaining such a mecha-
nism was the absence of a standardized system for
assessing such damages which is efficient as to both time
and cost.

The reported bill provides ... that ... agencies should
standardize a process through regulation for assessing
damages to those resources. This could be done after a
thorough review of alternatives for damage assessment.
This approach will focus on scientific debate concerning
damage assessment in the rulemaking process and result
in a decision regarding the best simplified procedures for
making accurate and defensible assessments of resource
damages.

* * *

The rulemaking should produce a range of products.
At one end will be simplified assessment procedures
requiring a minimum of fieldwork and using a combina-
tion of habitat values, species values, and other simplified
methods. Such procedures would be of value in dealing
with minor releases. At the other end of the range
would be damage assessment protocols to be used when-
ever the extent of natural resource damage is substantial
and extensive fieldwork becomes necessary. The assess-
ment procedures and protocols should include a choice of
acceptable damage assessment methodologies to be em-
ployed with the evidentiary status of a rebuttable pre-
sumption accorded to the results when the protocols are
followed.

There is a need for maximum flexibility in the rule-
making proceeding, so that free scientific discussion will
result. Only through this type of discussion will the
agencies be adequately prepared to select the most accu-
rate and credible damage assessment methodologies
available.

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

By using Type A procedures and selectively supplementing
them with certain low-cost and expeditious Type B proce-
dures, DOI is able to arrive at a more complete assessment of
damages at less cost and in less time than a full-blown Type
B assessment would likely require. Cf. 1996 Type A rule, 61
Fed. Reg. at 20,577 ("[T]rustees should not be forced to
choose between foregoing compensation for a public loss not
addressed by the type A submodel on the one hand and
funding a full-scale, time-consuming, labor-intensive type B
assessment of all injuries on the other hand.").

Nor does the combined use of Type A and Type B proce-
dures pose a risk of double recovery. The regulations limit
the use of supplemental Type B procedures to the determina-
tion of "damages for injuries or compensable values that do
not fall into the categories addressed by the type A proce-
dure." 43 C.F.R. s 11.36(a) (1996). In addition, a trustee
who elects to use both types of procedures must document in

the Assessment Plan how double recovery is to be avoided.
Id. s 11.36(c). Thus, if, for example, the Type A procedures
have already produced a value for mortality losses, Type B
procedures may not also be used to calculate that item of loss.
We therefore find nothing unreasonable in DOI's interpreta-
tion of CERCLA subsection 301(c)(2) as permitting combined
use of Type A and Type B procedures.25

(2) Average values and Type B procedures

NAM's challenge to the combination of Type B procedures
and the average valuations produced by Type A procedures to
arrive at a single NRD figure is, contrary to DOI's view, ripe
for review. To determine ripeness we "evaluate both the
fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration." Abbott Labs.
v. Gardner, 387 U.S. 136, 149 (1967). In applying the two-
part test, we note that the "basic rationale" of the ripeness
test is "to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract dis-
agreements over administrative policies, and also to protect
the agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete
way by the challenging parties." Id. at 148-49.

NAM's claim appears to be fit for resolution now. NAM
has styled its challenge as one to the lawfulness of DOI's
decision under CERCLA to allow trustees to calculate NRD
with combined Type A and Type B procedures and DOI's
decision to permit the combination is indisputably final. Cf.
________
25 Nor do we find problematic the fact that the rule authorizes
Type B assessments for types of losses not captured by Type A
procedures. See 1996 Type A rule, 61 Fed. Reg. at 20,578 ("Finally,
the Department believes it is appropriate to revise the existing rule
to allow supplemental use of type B procedures beyond resources
not addressed in the type A submodels. The public can experience
significant and distinct losses associated with the same re-
source.... The Department sees no reason to impose an arbitrary
distinction between losses associated with different resources and
losses associated with the same resource so long as there is no
double recovery.").

Abbot Labs., 387 U.S. at 149-50. Moreover, the effect of
DOI's interpretation is sufficiently concrete and immediate to
satisfy the second prong of the Abbott Labs. test. A trustee
that complies with the criteria set forth in the regulation may
now combine Type A and Type B procedures to assess
natural resource damages resulting from a release and a PRP
may well be required to decide whether it should force a Type
B assessment or allow a supplemented Type A assessment to
proceed. Cf. id. at 152-53 (finding that because FDA com-
missioner's rule, effective upon publication, required affected
parties to take immediate action or face possible sanctions for
non-compliance, rule's effect was "sufficiently direct and im-
mediate as to render the issue appropriate for judicial review
at this stage"). Thus, unlike the unripe challenge we rejected
in Kennecott, 88 F.3d at 1223 ("The guidance offered [in rule's
preamble] is hypothetical and non-specific; it is not crafted as
a concrete rule that can be applied under identified circum-
stances."), here the rules are concrete, specific and immedi-
ately effective.

Nonetheless, once again, NAM's claim fails on the merits.
While the Type A submodels predict losses based on certain
averaged values, that does not mean that supplementing the
determinations with Type B calculations for values that are
not included in the Type A submodels will result in overesti-
mation or underestimation of damages. Because each of the
procedures is addressed to a different type or component of
loss, averaged and non-averaged values are not being com-
bined to arrive at a joint loss figure for a particular type or
component of damages. Thus NAM's assertion that combin-
ing items of loss arrived at through averaged values with
items developed with non-averaged values produces bogus
total loss figures is erroneous. Indeed, without the use of
supplemental Type B procedures, a trustee could recover less
than the full measure of damages sustained because certain
values are not covered in the Type A submodels. Therefore,
the addition of supplemental Type B procedures should not
alter the degree to which the total loss figures produced could
underestimate or overestimate loss. Moreover, we can find
nothing in CERCLA that requires the calculation of aggre-

gate NRD either with or without averaged values but not
with a mixture of the two.

(3) Use of Type B procedures to assess compensable

value losses without "reality check"

NAM's final argument that DOI erred in permitting the
use of certain Type B procedures without requiring site-
specific validation also fails. While the regulations do require
that injury determination and quantification be performed
anew when supplemental Type B procedures are employed to
calculate items of loss other than compensable value, they do
not require the same when the procedures are used to
calculate compensable value losses not included in the Type A
submodels. Again, this distinction reflects DOI's expert
judgment that the Type A causation and loss predictions are
adequate for the purposes of injury determination and quanti-
fication in the compensable value context but not in the
restoration submodels. And again, we decline NAM's invita-
tion to review expert judgments the Congress has committed
to a coordinate branch of government. See Troy Corp., 120
F.3d at 283; American Iron, 115 F.3d at 1004-05.

H. Inclusion of Non-Binding Oil Discharge

Subroutines in Final Rule

Finally, NAM contends that DOI erred by retaining model-
ing subroutines for oil and petroleum discharges, which are
now under the jurisdiction of NOAA and governed by regula-
tions implementing OPA.26 Because we find that NAM lacks
standing to bring the claim, we do not reach the merits.
________
26 With respect to oil discharges, DOI's regulations provide:

The Department began developing the type A procedures
before the enactment of OPA and, thus, originally included
both hazardous substances and oil in the [Type A] algorithms
and databases. The Department has worked closely with
NOAA during the development of the type A procedures.
During its rulemaking, NOAA indicated it would allow use of

"[T]he standing doctrine requires would-be litigants to
demonstrate an (1) injury in fact; (2) which is caused by, or is
fairly traceable to, the alleged unlawful conduct; and (3)
which is likely to be redressed by a favorable decision of the
court." Animal Legal Defense Fund v. Glickman, 130 F.3d
464, ---, 1997 WL 753903, at *2 (D.C. Cir. Dec. 9, 1997).
Moreover, "[t]he party invoking federal jurisdiction bears the
burden of establishing these elements, ... and may not
pursue its claims before the federal judiciary if it fails to
demonstrate any one of them." Id.

NAM's claim here is that DOI could not support NOAA's
rulemaking under OPA by retaining subroutines and data it
had developed while it retained jurisdiction over oil and
petroleum discharges because DOI had no authority to pub-
lish such material in the Federal Register. Rather, according
to NAM, NOAA had to recreate the submodels itself and
subject its version of DOI's submodels to additional notice
and comment. See Appellant Br. 48. NAM has two standing
problems with the argument. First, NAM has wholly failed
to identify how it or its members have suffered injury in fact
that is concrete and imminent. See Bennett v. Spear, 117
________
the Department's type A procedures under the OPA regula-
tions....

NOAA's final rule states that trustees may use "[m]odel-
based procedures, including type A procedures identified in 43
C.F.R. part 11, subpart D," provided that any such procedure
meets [certain specific conditions]....

Therefore, the Department has retained components relating
to oil in the final versions of the [Type A procedures], while
recognizing that these components are without any direct
regulatory effect. The Department is also providing responses
to comments it received on the oil-related components of the
type A models. However, the Department wishes to emphasize
that its regulations do not govern the assessment of natural
resource damages for oil discharges under OPA. Trustees who
wish to use the type A procedures and obtain a rebuttable
presumption for assessments of oil discharges must follow the
process established by NOAA's regulations.

1996 Type A rule, 61 Fed. Reg. at 20,561.

S. Ct. 1154, 1161 (1997). The regulations plainly acknowledge
that the retained (and revised) subroutines are without bind-
ing effect because regulation of oil and petroleum discharges
is now the exclusive province of NOAA. See 1996 Type A
rule, 61 Fed. Reg. at 20,561. Thus, NAM cannot have been
injured by DOI's decision to publish the non-binding materi-
als. Second and more fundamentally, NAM has failed to
show that any injury it may have suffered is "fairly traceable"
to DOI's decision to retain, in non-binding form, the oil
discharge databases and subroutines. To the extent NAM
has a problem with NOAA's incorporation of the procedures
into its OPA regulation without developing assessment sub-
models and databases anew and without subjecting such
procedures to additional notice and comment, its claim is
against NOAA, not DOI. Cf. Animal Legal Defense Fund,
130 F.3d at ---, 1997 WL 753903, at *3 ("In analyzing the
'causation' element of constitutional standing, we ask whether
it is 'substantially probable' that the challenged acts of the
[respondent]--as opposed to some third party--caused [the
petitioner's] particularized injury."). Furthermore, NAM had
an opportunity to participate in the litigation challenging
NOAA's regulations--indeed, its counsel represented an in-
tervenor in that case. See General Elec., 128 F.3d at 769.
Accordingly, we find that NAM has failed to establish its
standing to bring its oil discharge claims against DOI.

III. CONCLUSION

For the foregoing reasons, we uphold DOI's Type A rule
(Natural Resource Damage Assessments--Type A Proce-
dures, 61 Fed. Reg. 20,560 (1996) (codified at 43 C.F.R. pt.
11)). Accordingly, NAM's petition is

Denied.