Carlos Martins
HAZMED

John Bascietto, Martha Crosland, Peter Karcz
USDOE

The U.S. Department of Energy (DOE) published its policy on "Integration of Natural Resource Concerns into Response Actions" on September 8, 1997. This policy addresses DOE's responsibilities as both a natural resource trustee, and as a lead response agency for response actions at sites under its jurisdiction, custody, and control. DOE will implement the integration policy in a manner that promotes collaboration with other federal and state agencies, tribes, and other stakeholders.

With regard to injuries to natural resources, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) states the following:

• responsible parties are liable for compensatory damages for injuries to natural resources owned, managed, or controlled by government agencies or Indian tribes,
• government agencies and Indian tribes may assess and collect the damages, acting on behalf of the public as trustees for the injured natural resources, and
• recovered damages must be used to restore, rehabilitate, replace, or acquire the equivalent of the injured natural resources.

The Superfund Amendments and Reauthorization Act of 1986 includes a provision that could potentially subject the federal government to natural resource damage claims. DOE has a dual role for most on-site, natural resources, i.e., as a trustee for natural resources and as a CERCLA lead response agency.

DOE has taken several steps to address natural resource concerns. The integration policy was first published as an interim policy on February 5, 1997. The Office of Environmental and Regulatory Analysis and the Office of Environmental Policy and Assistance coordinated revisions to the policy based on comments received internally and from other trustees. This process culminated in the issuance of the final policy on September 8, 1997.

On February 7, 1997, DOE provided the U.S. Congress with the report entitled "Estimate of Potential Natural Resource Damage Liabilities at U.S. Department of Energy Sites." The report indicates that the DOE strategy is to incorporate natural resource values in land use planning; to work closely with trustees to identify concerns and incorporate natural resource values into remedy selection; and to mitigate resource injury during response action implementation.

Examples of steps taken by DOE to address natural resource concerns are represented by the existence of formal trustee councils and memoranda of understanding among the trustees at various DOE sites. In addition, DOE has created the Natural Resource Trustee Steering Committee, which provides an organized forum for focused discussions among DOE sites regarding efforts to integrate natural resource concerns into response actions.

DOE's integration policy indicates that CERCLA and RCRA response actions are to be conducted under an ongoing dialogue among all stakeholders in natural resource issues. The integration policy implicitly provides a general framework for implementation of its mandate. The policy requires DOE heads of field organizations and program and project managers to:

• consider natural resource risk issues.
• establish an appropriate mechanism for consultation with natural resource trustees, such as a natural resource trustee council. Natural resource trustees should be represented on site specific advisory boards, or have an opportunity to present their views to the Board.
• include any foreseeable or potential risks to natural resources (and the services they provide) in data quality objectives during planning of response action investigations.
• consider selection of response actions that minimize or mitigate adverse impacts to natural resources.

The policy also states that a CERCLA Record of Decision, or applicable license or permit, should specifically identify any injuries to natural resources that may result from implementing the selected response actions. The policy states that the DOE's stewardship has resulted in environmental benefits, such as enhanced biodiversity and habitat protection for wildlife, which should be taken into account when considering opportunities to reduce or offset the Department's potential natural resources damage liabilities.

This policy represents another step taken by DOE to address natural resource concerns. Implementation of the policy may require issuance of specific procedural or technical guidance. We suggest that there are three forces that will shape effective implementation of this policy:

• legislative and regulatory requirements (e.g., CERCLA reauthorization, DOE Orders);
• natural resource knowledge from studies and remedial activities at the various sites (e.g., environmental studies of a specific natural resource at a site); and
• participation from other trustees at those sites (e.g., development of memoranda of understanding among DOE, states, and other trustees) .

The DOE's Natural Resource Trustee Steering Committee, sponsored by the Office of Environmental Policy and Assistance, RCRA/CERCLA Division (EH-413) and the Office of Environmental and Regulatory Analysis (EM-75), has been actively involved in promoting collaborative decisions among the trustees, and in providing a forum for DOE personnel to discuss natural resource strategies. The institutional experience gained by this committee should be tapped regarding implementation of the department's integration policy.

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