Colorado v. United States Department of Interior

880 F.2d 481, 279 U.S. App. D.C. 158, 1989 WL 76220
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 14, 1989
DocketNos. 87-1265, 87-1266
StatusPublished
Cited by8 cases

This text of 880 F.2d 481 (Colorado v. United States Department of Interior) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Colorado v. United States Department of Interior, 880 F.2d 481, 279 U.S. App. D.C. 158, 1989 WL 76220 (D.C. Cir. 1989).

Opinion

MIKVA, Circuit Judge:

In these consolidated cases, the state of Colorado and three environmental groups petition this court for judicial review of the so-called “type A” rules promulgated by the Department of the Interior (“DOI”) pursuant to section 301(c) of the Comprehensive Environmental Response, Compen[160]*160sation, and Liability Act of 1980 (“CERCLA”), as amended, 42 U.S.C. § 9651(c). The final rules at issue are intended to provide “standard procedures for simplified assessments” of damages to natural resources caused by releases or discharges of oil and hazardous substances. CERCLA § 301(c)(2)(A), 42 U.S.C. § 9651(c)(2)(A).

The question presented is whether the scope and content of the rules promulgated comply with section 301(c)(2)(A) of CERCLA. We hold that although DOI’s type A rules cover a limited class of cases — namely, minor, short-duration releases in coastal or marine environments — DOI has made, in the face of an ambiguous congressional mandate and technical uncertainties, a reasonable judgment regarding the proper scope of the rules. The content of the type A rules, however, must be revised in light of our decision today in Ohio v. Department of the Interior, 880 F.2d 432 (D.C. Cir.1989) (upholding in part and invalidating in part DOI’s type B rules). Accordingly, we remand to DOI for reissuanee of type A regulations consistent with our decision in Ohio. In addition, we expect DOI to continue to promulgate, as expeditiously as possible, further type A regulations to cover as many types of releases in as many different kinds of environments as feasible.

I.

A. Statutory Background

CERCLA establishes a comprehensive statutory scheme for cleaning up inactive hazardous waste sites. See 42 U.S.C. §§ 9601-9675. It authorizes, inter alia, federal and state natural resource damage “trustees” to assess and recover from “responsible parties” damages for “injury to, destruction of, or loss of” publicly owned or controlled natural resources, caused by the release of hazardous substances. CERCLA § 107(a)(4)(C), 42 U.S.C. § 9607(a)(4)(C).

To carry out this statutory mandate, section 301(c) of CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub.L. No. 99-499, 100 Stat. 1630 (1986), provides:

(1) The President, acting through Federal officials designated by the National Contingency Plan * * *, shall study and, not later than two years after December 11, 1980, shall promulgate regulations for the assessment of damages for injury to, destruction of, or loss of natural resources resulting from a release of oil or a hazardous substance for the purposes of this chapter and section 1321(f)(4) and (5) of Title 33 [provisions of the Clean Water Act]. Notwithstanding the failure of the President to promulgate the regulations required under this subsection on the required date, the President shall promulgate such regulations not later than 6 months after October 17, 1986.
(2) Such regulations shall specify (A) standard procedures for simplified assessments requiring minimal field observation, including establishing measures of damages based on units of discharge or release or units of affected area, and (B) * * *. Such regulations shall identify the best available procedures to determine such damages, including both direct and indirect injury, destruction, or loss and shall take into consideration factors including, but not limited to, replacement value, use value, and ability of the ecosystem or resource to recover.
(3) Such regulations shall be reviewed and revised as appropriate every two years.

42 U.S.C. § 9651(c) (emphasis added). Trustees performing damage assessments under the section 301(c) procedures are granted rebuttable presumptions in any subsequent related proceedings to recover damages. CERCLA § 107(f)(2)(C), 42 U.S. C. § 9607(f)(2)(C).

The type A regulations at issue in this case are those promulgated by DOI in response to section 301(c)(2)(A). Section .301(c)(2)(B) requires promulgation of type B rules establishing “alternative protocols for conducting assessments in individual cases.” 42 U.S.C. § 9651(c)(2)(B). DOFs type B rules have been challenged in a separate petition for review, which we decide today in Ohio v. Department of the [161]*161Interior, 880 F.2d 432 (D.C.Cir.1989).

B. Regulatory History

On August 14, 1981, the President delegated his duty to promulgate natural resource damage assessment regulations to DOI. See Exec. Order No. 12,316, 46 Fed. Reg. 42,237 (1981), superseded by Exec. Order No. 12,580, 52 Fed.Reg. 2923 (1987).

On January 10, 1983, DOI issued an advance notice of proposed rulemaking seeking public comment concerning the development of the damage assessment procedures. See 48 Fed.Reg. 1084 (1983). On August 1, 1983, in response to comments, DOI issued a second advance notice of proposed rulemaking. See 48 Fed.Reg. 34,768 (1983).

In 1983 and 1984, three suits were filed (one involving the environmental groups in this case) against DOI for failure to promulgate the damage assessment regulations. On December 12, 1984, the U.S. District Court for the District of New Jersey ruled that DOI had failed to promulgate the regulations in a timely manner. See New Jersey v. Ruckelshaus, No. 84-1668 (D.N.J.1984), aff'd mem., 782 F.2d 1031 (3d Cir.1986). On February 5, 1985, the court entered a consent order requiring DOI to promulgate final type A regulations by August 7, 1986. This deadline was later extended to February 4, 1987, to provide further public comment on the proposed regulations, and extended again by Congress in SARA to April 17, 1987.

On May 5, 1986, DOI proposed type A regulations that provided simplified procedures for assessing natural resource damages in coastal and marine environments. See 51 Fed.Reg. 16,636 (1986). The comment period was extended twice to August 18, 1986. See id. at 22,320, 25,903. The final rules were published on March 20, 1987, see 52 Fed.Reg. 9042 (1987), over four years after the original statutory deadline, and are codified at 43 C.F.R. Part 11 (1988).

C. DOI’s Type A Rules

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880 F.2d 481, 279 U.S. App. D.C. 158, 1989 WL 76220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colorado-v-united-states-department-of-interior-cadc-1989.