DIRECTOR'S ORDER NO. 43

Subject: Covenants not to Sue for Natural Resource Damages: Documentation and Participation in Negotiation and Investigation

Sec. 1. Purpose. This order identifies the need for an administrative record when approving a covenant not to sue for natural resource damages and directs Fish and Wildlife Service (Service) personnel to participate fully in negotiation and investigation of potential natural resource damages.

Sec. 2. Scope. This order applies Servicewide and applies to any Service employee who may have a role in reviewing or making recommendations concerning settlement of natural resource damages due to releases of hazardous substances or oil spills.

Sec. 3. Objective. To ensure that settlement of natural resource damages by the Service is based on sound and supportable information and that the Service participates fully and in a coordinated fashion in the planning and negotiation process for hazardous waste sites and oil spills.

Sec. 4. Authority.

-- 42 U.S.C. sections 9604(b)(2), 9607(a)(4)(C), 9607(f), 9622(f), and 9622(j)

-- 33 U.S.C. section 1321

-- P.L. 101-380 sections 1002, 1006

-- 43 C.F.R. Part 11

Sec. 5. Standards. The following standards will apply to all covenants not to sue for natural resource damages recommended by the Service:

A. Recommendations to grant a covenant not to sue will be supported by documentation of the basis for that covenant, including information on the nature and extent of injury and on how restoration costs, lost use values, and assessment costs were calculated or estimated;

B. This information shall be sufficient to provide a rational basis for dollar values or conditions in the covenant;

C. No covenant shall be recommended based on lack of data. Sufficient evidence must be available to clearly demonstrate either that injured natural resources will be restored or that injuries to trust resources are unlikely;

D. Where restoration is dependent on actions by the settling party(ies), conditions shall include legally enforceable performance standards adequate to ensure that restoration will occur. Any monitoring required shall include standards or thresholds and actions to be taken if those thresholds are violated;

E. Unless there are extraordinary circumstances, justified in writing by the Regional Director, settlements will always include the reopener required by section 122(f)(6) of the Comprehensive Environmental Response, Compensation, and Liability Act. Such justification of "extraordinary circumstances" shall identify how the conditions of section 122(f)(6)(B) are met.

Sec. 6. Coordination and Responsibility. Regional Directors shall ensure that the following occur:

A. All natural resource damage assessment activities, including investigations, technical assistance, recommendations on settlements, and planning shall be reviewed, approved, and conducted by, or under the lead and continuing oversight of, Fish and Wildlife Enhancement;

B. Field offices will respond to all notifications of negotiations or planning for Superfund sites;

C. Notifications or invitations to participate in negotiations or planning received by either field or Regional Offices shall be transmitted promptly to the other. Both are to be aware of and track opportunities and responses. The Division of Environmental Contaminants shall be provided copies of all such documents;

D. The Service will provide timely and professional coordination with the Environmental Protection Agency (Agency) in planning Superfund cleanups and with the Agency and the Department of Justice in negotiations for settlement of Superfund sites;

E. Participation in negotiations will be fully coordinated with Departmental Regional Environmental Officers and the Office of the Solicitor;

F. Service personnel, including field and Regional staff, will work closely with the Office of the Solicitor in pursuing settlements. Legal questions, including contacts with the Department of Justice and with Agency attorneys, as well as interpretations of legal strengths and weaknesses of cases, will be referred to the Solicitor.

G. Decisions and recommendations on covenants not to sue for damages to the Service's trust natural resources will be signed by the Director or Regional Director or their designee. The Service will base its recommendations in each case on its best independent scientific judgement.

H. Copies of all signed consent decrees and agreements with potentially responsible parties and other trustees shall be provided promptly to the Division of Environmental Contaminants to facilitate tracking of accomplishments and funds.

Sec. 7. Effective Date. This Order is effective immediately. Its provisions will remain in effect until it is incorporated in the Fish and Wildlife Service Manual, or until it is amended, superseded, or revoked, whichever occurs first. However, in the absence of the foregoing actions, the provisions of this Order will terminate and be considered obsolete on January 29, 1993.

RICHARD N. SMITH

Deputy Director

March 27, 1992