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