Memorandum of Understanding Between the Department of the Interior and the Department of Energy, 14452-14457 [05-5597]

Agencies

• DEPARTMENT OF THE INTERIOR
• DEPARTMENT OF ENERGY

[Federal Register Volume 70, Number 54 (Tuesday, March 22, 2005)]
[Notices]
[Pages 14452-14457]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5597]


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DEPARTMENT OF ENERGY

DEPARTMENT OF THE INTERIOR


Memorandum of Understanding Between the Department of the 
Interior and the Department of Energy

AGENCIES: Office of Environmental Management, Department of Energy, and 
Fish and Wildlife Service, Department of the Interior.

ACTION: Notice of draft memorandum of understanding.

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SUMMARY: The Department of Energy (DOE) and the Department of the 
Interior (DOI) plan to enter into a Memorandum of Understanding (MOU), 
no later than six months after the publication of this draft MOU. The 
purpose of the MOU is to describe how the Departments will cooperate in 
transferring administrative jurisdiction for certain lands within the 
Rocky Flats Environmental Technology Site (Rocky Flats) from DOE to DOI 
and the transition of Rocky Flats from a defense nuclear facility into 
the Rocky Flats National Wildlife Refuge (the Refuge). The text of the 
draft MOU is set forth below.

DATES: Comments on the draft MOU are due by May 23, 2005.

ADDRESSES: Comments should be sent to: U.S. Department of Energy, 
Office of Environmental Management, 1000 Independence Avenue, SW., 
Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Matthew Duchesne, of the Office of 
Environmental Management, at the address in the ADDRESSES section; 
telephone (202) 586-6540. This is not a toll-free number.

    Authority: The Rocky Flats National Wildlife Refuge Act of 2001, 
Public Law 107-107, Title XXXI, Subtitle F (December 28, 2001).

    Signed at Washington, DC, on March 15, 2005.
Paul M. Golan,
Principal Deputy Assistant Secretary for Environmental Management, 
Department of Energy.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
Interior.

Implementation of the Rocky Flats National Wildlife Refuge Act of 2001

I. Purpose, Authority, and Scope

A. Purpose

    This Memorandum of Understanding (MOU) is entered into by the U.S. 
Department of Energy (DOE) and the U.S. Department of the Interior 
(Interior), hereinafter referred to as the Parties, regarding the Rocky 
Flats Environmental Technology Site (Rocky Flats), Colorado. This MOU 
describes how the Parties will cooperate in transferring administrative 
jurisdiction (the transfer) of certain lands within Rocky Flats from 
DOE to Interior and the transition of Rocky Flats from a former defense 
nuclear facility to the Rocky Flats National Wildlife Refuge (Refuge).

B. Authority

    The authority for this MOU is section 3175 of the Rocky Flats 
National Wildlife Refuge Act of 2001, Public Law 107-107, sections 3171 
to 3182 (Dec. 28, 2001) (the Act), 16 U.S.C. 668dd note.

C. Scope

    The Act requires that the Parties carry out the transfer of 
administrative jurisdiction pursuant to an MOU that:
    1. Provides for the division of responsibilities between the 
Secretary of Energy and the Secretary of the Interior necessary to 
carry out such transfer of lands that will become the Refuge;
    2. Addresses the impacts that any property rights referred to in 
section 3179(a) of the Act may have on the management of the Refuge, 
and provide strategies for resolving or mitigating these impacts;
    3. Identifies the land the administrative jurisdiction of which is 
to be transferred to the Secretary of the Interior; and
    4. Specifies the allocation of the Federal costs incurred at the 
Refuge after the date of such transfer for any site investigations, 
response actions, and related activities for covered substances.

II. Background

    A. The majority of the Rocky Flats site has generally remained 
undisturbed since its acquisition by the Federal Government.
    B. The State of Colorado is experiencing increasing growth and 
development, especially in the metropolitan Denver Front Range area in 
the vicinity of the site. That growth and development reduces the 
amount of open space and thereby diminishes for many metropolitan 
Denver communities the vistas of the striking Front Range mountain 
backdrop.
    C. The Act provides that after the cleanup and closure of Rocky 
Flats, it shall thereafter be retained by the United States and managed 
so as to preserve the value of the site for open space and wildlife 
habitat.
    D. Rocky Flats provides habitat for many wildlife species, 
including a number of threatened and endangered species, and is marked 
by the presence of rare xeric tallgrass prairie plant communities. 
Establishing the site as a unit of the National Wildlife Refuge System 
will promote the preservation and enhancement of those resources for 
present and future generations.
    E. The mission of the National Wildlife Refuge System is to 
administer a national network of lands and waters for the conservation, 
management, and, where appropriate, restoration of the fish, wildlife, 
and plant resources and their habitats within the United States for the 
benefit of present and future generations of Americans (16 U.S.C. at 
68dd(a)(2)).
    F. Section 3177 of the Act provides that the Refuge shall be 
managed for the purposes of: Restoring and preserving native 
ecosystems; providing habitat for, and population management of, native 
plants and migratory and resident wildlife; conserving threatened and 
endangered species (including species that are candidates for listing 
under the Endangered Species Act of 1973 (16 U.S.C. 11531 et seq.)); 
and providing opportunities for compatible scientific research. 
Management of the Refuge shall ensure that wildlife-dependent 
recreation and environmental education and interpretation are the 
priority public uses of the Refuge.

[[Page 14453]]

    G. Section 3175 of the Act provides that the transfer of 
administrative jurisdiction will be completed without cost to Interior.
    H. Section 3175 of the Act also provides that the transfer of 
administrative jurisdiction will not result in a reduction in funds 
available to DOE for cleanup and closure of Rocky Flats.
    I. This MOU complies with the foregoing requirements of the Act and 
also addresses opportunities for cooperation between the Parties on 
issues related to management of natural resources prior to the transfer 
of administrative jurisdiction. Further, this MOU addresses post 
transfer issues related to oversight, operation, maintenance, and 
monitoring of response actions.
    J. Nothing in this MOU shall relieve, and no action may be taken 
under this MOU to relieve, DOE, Interior, or any other person from any 
liability or other obligation at Rocky Flats under CERCLA, RCRA, or any 
other Federal or State law.

III. Definitions

A. CERCLA

    The term ``CERCLA'' means the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).

B. Cleanup and Closure

    The term ``Cleanup and Closure'' means the response actions for 
covered substances carried out at Rocky Flats, as required by any of 
the following:
    1. The Rocky Flats Cleanup Agreement (RFCA)
    2. CERCLA;
    3. The Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 
6901 et seq.; and
    4. The Colorado Hazardous Waste Act (CHWA), sections 25-15-101 to 
25-15-327, Colorado Revised Statutes.

C. Consultation

    In the context of this MOU, the term ``Consultation'' means normal 
discussion which will occur between Interior and DOE whenever either 
Party seeks advice or exchanges information. As used herein, 
``consultation'' does not imply consultation under provisions of 
section 7 of the Endangered Species Act unless explicitly stated as 
such.

D. Covered Substance

    The term ``Covered Substance'' means any of the following:
    1. Any hazardous substance, as such term is defined in paragraph 
(14) of section 101 of CERCLA (42 U.S.C. 9601(14)). This includes all 
radioactive substances released at Rocky Flats by DOE; and
    2. Any pollutant or contaminant, as such term is defined in 
paragraph (33) of such section 101, (42 U.S.C. 9601 (33)); and
    3. Any petroleum, including crude oil or any fraction thereof which 
is not otherwise specifically listed or designated as a hazardous 
substance under subparagraphs (A) through (F) of paragraph (14) of such 
section 101 (42 U.S.C. 9601 (14)); and
    4. Any other substance, material, or waste the release of which the 
Parties jointly agree (or is determined through dispute resolution) 
requires a response action to protect human health and the environment.

E. Land Use Controls

    The term ``Land Use Controls'' means any type of physical, legal, 
or administrative mechanism used to restrict the use of, or limit 
access to, real property to ensure that there are no unacceptable risks 
to human health, safety, or the environment. Land use controls consist 
of Engineering Controls and/or Institutional Controls. Land use 
controls may be either temporary or permanent. The establishment of the 
Refuge under the Act does not constitute a land use control for 
purposes of this MOU.

F. Institutional Controls

    The term ``Institutional Controls'' means any non-engineering 
measure, such as legal or administrative mechanisms, whether temporary 
or permanent, designed to prevent or limit exposure to Covered 
Substances left in place at a site or to assure effectiveness of the 
chosen remedy.

G. Interior

    The term ``Interior'' means the United States Department of the 
Interior, including the United States Fish and Wildlife Service (FWS).

H. Overlay Refuge

    The term ``Overlay Refuge'' means those lands at Rocky Flats under 
the jurisdiction, custody, and control of DOE, but over which FWS 
exercises natural resource management activities by agreement with, and 
permission from, DOE. Subject to that permission and subject to DOE's 
continuing jurisdiction, custody, and control, FWS is authorized to 
manage fish and wildlife resources on an Overlay Refuge pursuant to the 
National Wildlife Refuge Administration Act, 16 U.S.C. 668dd et seq.

I. RCRA

    The term ``RCRA'' means the Solid Waste Disposal Act (42 U.S.C. 
6901 et seq.), popularly known as the Resource Conservation and 
Recovery Act.

J. Refuge

    The term ``Refuge'' means the Rocky Flats National Wildlife Refuge 
established under section 3177 of the Act.

K. Response Action

    The term ``Response Action'' means any of the following:
    1. A response, as such term is defined in paragraph (25) of section 
101 of CERCLA (42 U.S.C. 9601 (25));
    2. A corrective action or closure under RCRA or CHWA; or
    3. Any requirement for institutional controls imposed by any of the 
laws referred to in subparagraph (1) or (2).

L. Retained Property

    The term ``Retained Property'' means the real property and 
facilities at Rocky Flats and identified in section 3175(d)(1) of the 
Act.

M. RFCA

    The term ``RFCA'' means the Rocky Flats Cleanup Agreement, an 
intergovernmental agreement, dated July 19, 1996, among DOE, the U.S. 
Environmental Protection Agency (EPA), and the Department of Public 
Health and Environment of the State of Colorado (CDPHE).

N. Rocky Flats

    1. Except as provided in subparagraph (2) of this paragraph, the 
term ``Rocky Flats'' means the Rocky Flats Environmental Technology 
Site, Colorado, a former defense nuclear facility, as depicted on the 
map entitled, ``Rocky Flats Environmental Technology Site'' dated 
October 22, 2001, and attached to this MOU as Attachment A and 
available for inspection in the office of the Regional Director, U.S. 
Fish and Wildlife Service, Division of Realty, 3rd Floor, 134 Union 
Boulevard, Lakewood, Colorado. The map is also available at the Rocky 
Flats Reading Room located at the Front Range Community College, 3705 
W. 112th Avenue, Westminster, Colorado.
    2. The term ``Rocky Flats'' does not include: (i) The land and 
facilities of DOE's National Renewable Energy Laboratory, including the 
acres retained by the DOE under section 3174(f) of the Act; and (ii) 
any land and facilities not within the boundaries depicted on the map 
referred to in subparagraph (1) of this paragraph.

[[Page 14454]]

O. Transferred Property

    The term ``Transferred Property'' shall mean the real property 
transferred by the Secretary of the Department of Energy to the 
administrative jurisdiction, custody, and control of the Secretary of 
the Department of the Interior pursuant to section 3175 of the Act.

IV. Applicable Laws

    All applicable Federal and State laws including, but not limited to 
the following, will be implemented in accordance with the Parties' 
responsibilities under the MOU:
    1. CERCLA;
    2. RCRA;
    3. CHWA;
    4. The Migratory Bird Treaty Act (16 U.S.C. 703 et seq.);
    5. The National Wildlife Refuge System Administration Act of 1966, 
as amended (16 U.S.C. 668dd et seq.);
    6. The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
    7. The Economy Act (31 U.S.C. 1535 et seq.); and
    8. The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d).

V. Relevant Agreements

    The following Agreements are relevant to and are not modified by 
this MOU:
    1. RFCA;
    2. ``Memorandum of Agreement for Coordination of Endangered Species 
Act Compliance with Activities at Rocky Flats Environmental Technology 
Site'' (March 23, 1999) among FWS, EPA, CDPHE, Colorado Department of 
Natural Resources, and DOE. (This Memorandum of Agreement established a 
process for the five parties to work together to achieve compliance 
with the mandates of the Rocky Flats Cleanup Agreement, other site 
closure activities, and the Endangered Species Act);
    3. ``Interagency Agreement, number DE-A134-99 RF 01776, between FWS 
and DOE, Rocky Flats Field Office for The Rock Creek Fish and Wildlife 
Cooperative Management Area at the Rocky Flats Environmental Technology 
Site'' (May 17, 1999). (This interagency agreement identified technical 
services to be provided by FWS for the purpose of conserving, 
protecting, developing, and managing the habitat on the portion of the 
Rocky Flats Buffer Zone designated by Rocky Flats as the Rock Creek 
Reserve); and
    4. ``Interagency Agreement, number DE-AI34-02 RF 02046, between FWS 
and DOE, Rocky Flats Field Office for Wildlife Refuge Transition/
Technical Assistance'' (December 15, 2001) (IA). (This interagency 
agreement includes work by FWS necessary to effect the transfer of 
certain Rocky Flats lands to Interior for establishment of the Refuge, 
including mutually agreed technical services to facilitate that 
transfer).

VI. Covered Substances and Response

A. Responsibilities of DOE

    1. As between the Parties and subject to section 3180(b) of the 
Act, with respect to the Transferred Property and to Retained Property, 
DOE shall have sole and exclusive Federal responsibility to fund and 
implement any Response Action (including operation and maintenance and 
Land Use Controls) required by applicable law or implementing 
regulations, including but not limited to CERCLA, RCRA, and CHWA, to 
address Covered Substances resulting from the activities of DOE 
(including entities acting with permission or under the authority of or 
in a contractual relationship with DOE) or which are present at the 
time of transfer by DOE to Interior (including contamination that is 
subsequently discovered), except to the extent that Interior or a third 
party caused or contributed to such contamination after the date of 
transfer.
    2. In carrying out Response Actions at Rocky Flats, DOE will 
consult with FWS to ensure that Response Actions are carried out in a 
manner consistent with refuge purposes as specified in the Act. 
Selected Response Actions at Rocky Flats should reflect the intended 
future land use as a wildlife refuge for Response Action decisions 
where FWS recommendations are not implemented by DOE. DOE shall provide 
a written explanation for its decisions to FWS.
    3. In administering the property to be retained by DOE under 
section 3175(d) of the Act, DOE shall consult with FWS to minimize any 
conflict between administration of the retained land by DOE for 
purposes relating to Response Actions and administration of the land 
transferred under section 3175(a) to FWS for refuge purposes. The 
Parties shall strive to meet the needs of managing the transferred 
lands for refuge purposes and managing the retained lands to meet 
Response Action objectives. In the case of any conflict between 
administering the retained lands for Response Actions and administering 
the transferred lands for refuge purposes which cannot be resolved 
through dispute resolution, administration of the retained lands for 
Response Actions shall take priority.
    4. DOE will complete a risk assessment that will include a 
comprehensive ecological risk assessment for Rocky Flats.
    5. DOE will evaluate the effects of remedial alternatives on 
natural resource restoration and incorporate into Response Actions 
restoration of natural resources injured by Covered Substances or 
Response Actions, including associated waste management structures, as 
appropriate.
    6. In consultation with Interior, DOE will conduct periodic remedy 
reviews and take any necessary actions in accordance with CERCLA 
section 121 (c) and the RFCA for which DOE is responsible under this 
MOU and applicable law, to ensure that the selected remedy is still 
protective of human health and the environment. Such reviews may result 
in DOE conducting additional Response Actions, including removing or 
modifying Land Use Controls. DOE will conduct additional Response 
Actions as appropriate if the remedy fails or if new contamination is 
discovered that is not addressed by an existing remedy.
    7. Pursuant to section 3175(a)(3) of the Act, DOE will request the 
Certificate of Completion from EPA.

B. Interior Responsibilities

    1. Interior will manage the Refuge in accordance with applicable 
law, including but not limited to, the National Wildlife Refuge System 
Administration Act of 1966, as amended.
    2. Interior will provide technical assistance to DOE to help 
coordinate Response Actions with the stated purposes of the Refuge, by 
reviewing and commenting on the impacts, if any, of proposed Response 
Actions on the future use of Rocky Flats as a unit of the National 
Wildlife Refuge System.
    3. Interior will complete a Level III Contaminants Survey of Rocky 
Flats pursuant to Interior Departmental Manual Part 602, Chapter 2.
    4. Interior will prepare the Comprehensive Conservation Plan for 
management of the Refuge pursuant to section 3178 of the Act.
    5. Interior will be responsible for managing the Refuge for the 
purposes specified in the Act and in accordance with the National 
Wildlife Refuge System Administration Act. Interior shall not be 
responsible for any operations and maintenance related to Response 
Actions following the establishment of the Refuge.
    6. Interior shall record any Land Use Controls, as documented in 
Land Use Control Records, on the FWS's Land Status Map for Rocky Flats, 
or other appropriate Interior land status map.

[[Page 14455]]

    7. Following the transfer of administrative jurisdiction, FWS will 
provide DOE with access to the Refuge as may be reasonably required to 
carry out the provisions of this MOU and DOE's obligations under 
applicable requirements. Prior to entry, except in cases of emergency, 
DOE will provide FWS with reasonable notice, to allow coordination 
between Response Actions and Refuge management activities.
    8. Interior will provide information to DOE for the preparation of 
the annual report on funding required by section 3182 of the Act and 
will submit the report to Congress jointly with DOE.

C. Discovery of Additional Covered Substances

    1. If Interior discovers additional Covered Substances for which 
DOE is responsible on the Transferred Property, or otherwise identifies 
a previously unidentified condition associated with such Covered 
Substances that may require a Response Action, it will notify DOE of 
such Covered Substances or condition as soon as reasonably possible 
after such discovery.
    2. After DOE receives notice from Interior, any regulatory agency 
or other third party, of the presence of Covered Substances for which 
DOE is responsible, DOE will provide a written status report to 
Interior as soon as practical, but in no event later than 30 days after 
Interior's notification of additional Covered Substances in accordance 
with section VI, paragraph C.1 of this MOU, for which DOE is 
responsible.
    3. Under certain circumstances, Interior may discover Covered 
Substances that require an emergency response because they pose a risk 
to human health or the environment. Interior may take whatever action 
is necessary to isolate and prevent access to the contaminated site for 
purposes of protecting human health or the environment. Before taking 
further action, Interior will provide further notice to DOE, which, in 
consultation with Interior, will determine whether further Response 
Actions are required and how such Response Actions will be 
accomplished.
    4. If Interior incurs response costs associated with Covered 
Substances for which DOE is responsible under this MOU, DOE will 
reimburse Interior for reasonable and legally authorized costs incurred 
by Interior. Interior requests for reimbursement will be in writing and 
will include appropriate receipts or other documentation. DOE will 
review such requests and upon approval, DOE will reimburse Interior 
subject to availability of appropriated funds. DOE will use its best 
efforts to secure appropriations to fulfill its obligations under this 
MOU.

VII. Retained DOE Property

    A. The Parties anticipate that some contaminated areas of the site 
over which the Act requires DOE to retain administrative jurisdiction 
for a Response Action may have natural resource values. FWS may decide 
it wants to manage all or portions of DOE Retained Property as an 
Overlay Refuge subject to DOE's agreement and the continued 
jurisdiction, custody, and control of the land by DOE. Any agreement to 
manage Retained Property as an Overlay Refuge will be memorialized in a 
subsequent agreement.
    B. To the extent permitted by law, Retained Property should be 
managed for the purposes identified at section 3177(e)(2) of the Act.
    C. In those instances where FWS is managing Retained Property as an 
Overlay Refuge, FWS will not take actions contrary to any land use 
restrictions pursuant to CERCLA and/or any other Federal or State 
environmental law. Prior to engaging in any action that may disturb the 
surface soils of or any structure or engineered facility located on 
such lands, FWS will seek and obtain DOE approval prior to implementing 
any ground disturbing activity.
    D. DOE shall retain sole and exclusive authority and responsibility 
to fund and maintain all necessary physical security prior to 
completion of Response Actions.
    E. DOE and FWS will periodically review FWS activities on Retained 
Property to ensure that they are consistent with Response Actions. At a 
minimum, this review will begin not later than one year following the 
establishment of the Overlay Refuge and will recur annually in the 
month of the anniversary of the Overlay Refuge.

VIII. Existing Private Property Rights

    A. The Act requires that the final MOU address the impacts that any 
mineral rights may have on the management of the Refuge, and provide 
strategies for resolving or mitigating these impacts. A substantial 
portion of the mineral estate associated with lands at Rocky Flats is 
privately owned. The Parties recognize that the exercise of certain 
existing privately-owned mineral rights, particularly surface mining of 
gravel and other aggregate material, at Rocky Flats will have an 
adverse impact on the management of the Refuge. Interior does not 
believe it can manage the Refuge for meeting the purposes of section 
3177(e)(2) if those mineral rights are exercised. Accordingly, Interior 
will not accept transfer of administrative jurisdiction for lands 
subject to the mining of gravel and other aggregate material at Rocky 
Flats from DOE until the DOI determines that the affected mineral 
rights are adequately protected from development. The Parties are 
continuing to discuss this issue, and recognize that the Final MOU will 
need to address strategies for resolving or mitigating the impacts of 
surface mining on the Refuge.
    B. Water rights, water easements, and utility rights-of-way are not 
anticipated to interfere with managing the Refuge for its intended 
purposes.

IX. Identification of Lands To Be Transferred

    A. As of the date of this MOU, Response Action decisions, land use 
planning decisions and title review of the mineral estate have not been 
completed. Such decisions and title review must be completed prior to 
Interior and DOE determining which lands will be administratively 
transferred to Interior. Accordingly, the Parties intend to modify this 
MOU in the future to identify the lands to be transferred as necessary 
in order to implement section 3175 of the Act.
    B. DOE will retain administrative jurisdiction, authority, and 
control over real property and facilities at Rocky Flats used for or 
related to a Response Action and subject to Section VII of this MOU. 
For purposes of this paragraph, real property and facilities include 
caps, barrier walls, fences, and monitoring or treatment wells and 
other engineered structures as well as real property or other 
facilities that DOE must retain to implement Response Actions in 
accordance with appropriate requirements.
    C. The Parties anticipate that the administrative jurisdiction over 
most of Rocky Flats may be transferred from DOE to Interior. It is also 
anticipated that most of the industrial area, as identified on 
Attachment B as Retained Property, may not be transferred to Interior.
    D. As required by section 3175(d)(2) of the Act, following 
completion of the required Response Action decisions and land use 
planning decisions and subject to Section VIII of this MOU, DOE will 
consult with FWS, the Administrator of EPA, and the Governor of the 
State of Colorado, on the identification of all real property and 
facilities to be retained.
    E. DOE shall prepare an exact acreage and legal description of the 
land that

[[Page 14456]]

will become the Refuge, based on a survey that is mutually satisfactory 
to the Parties. As part of the transfer, DOE will notify the General 
Services Administration (GSA) of the transfer and revise the DOE Real 
Property records accordingly and any other DOE records used for 
reporting to the GSA. When reporting to GSA, DOE will maintain the 
Rocky Flats facility identification name and numbers as long as needed, 
and Interior will apply for its own facility identification name and 
number for the Refuge when administrative jurisdiction is transferred 
to Interior.
    F. DOE will collect all applicable real estate records, maps, and 
electronic data associated with the acquisition, land management, and 
any disposals of the Refuge real estate and related property. DOE will 
transfer this information to Interior.
    G. Until the transfer of administrative jurisdiction is completed, 
DOE will continue to operate and maintain all U.S. Government property 
and facilities at Rocky Flats, unless otherwise agreed to in writing by 
the Parties.

X. Buildings and Other Improvements

    Under section 3175(c) of the Act, Interior may request the transfer 
of buildings and other improvements for the purposes of managing the 
Refuge. Interior agrees that DOE's need to retain, demolish, or 
otherwise dispose of certain facilities will take priority over 
requests for transfer to Interior.

XI. DOE Funded Activities

    A. DOE will provide funding to Interior for activities necessary 
for the transition of Rocky Flats to its future use as a Refuge. Those 
activities include, but are not limited to, the following:
    1. Implementation of this MOU.
    2. Preparation of the Comprehensive Conservation Plan for the 
Refuge.
    3. Interior Level III Contaminants Survey and other environmental 
monitoring required for the transfer, and ecological investigations 
necessary for the transfer.
    4. Interior review and comment on cleanup plans and documents and 
consultation on remedy selection.
    5. Real estate related work necessary to effect the transfer of 
jurisdiction pursuant to applicable Federal law and regulations.
    6. This MOU shall not be used to obligate or commit funds or as the 
basis for the transfer of funds. The details of the levels of support 
to be furnished to one organization by the other with respect to 
funding will be developed in specific interagency agreements or other 
agreements. While reimbursement will be subject to the availability of 
funds, DOE agrees that funding under this MOU will receive priority 
consideration over other expenditures because of the importance of this 
MOU enabling DOE to complete its accelerated cleanup and closure of 
Rocky Flats and agrees to seek funds from Congress to satisfy its 
responsibilities under this MOU in the event that funds are 
insufficient.
    B. Procedures for DOE funding of Interior activities pursuant to 
this MOU follow:
    1. With respect to Interior activities that DOE funds in accordance 
with this MOU, under the Act, Interior will annually provide an 
estimate of its funding needs to DOE for the following fiscal year by 
October 31 of each year that this MOU remains in effect.
    2. No funds are authorized to be transferred between the Parties by 
this MOU. Subject to requirements of the Anti-Deficiency Act, the 
Economy Act, and other applicable requirements, transfer of funds from 
DOE to Interior will be made on an annual basis as agreed upon in an 
annual or multi-year Interagency Agreement or Cooperative Agreement 
between DOE and Interior. Interior will maintain financial records to 
support periodic DOE audits of expenses in such detail and as often as 
deemed necessary by the DOE.
    3. In accordance with section 3175(f) of the Act, the Parties 
acknowledge that funds will not be taken from Rocky Flats closure 
project funds either to implement the Act or to effect the transition 
of the site to National Wildlife Refuge status.
    4. The Parties will comply with the requirements of section 3182 of 
the Act regarding an annual joint report to Congress on costs incurred 
to implement the Act in the prior fiscal year, as well as funds 
required for implementation in the current and subsequent fiscal years. 
The Parties agree to report costs incurred and future funding needs to 
the Congressional Committees responsible for DOE appropriations. DOE 
will draft, for joint DOE and Interior submission, annual reports to 
Congress on the cost of implementation of the Act pursuant to section 
3182 of the Act.
    C. The Parties agree to use their best efforts to work 
cooperatively to minimize the overall cost of the transition and 
transfer of administrative jurisdiction hereunder. Examples of these 
efforts could include use of existing environmental and ecological 
data, data that DOE already plans to collect to support the cleanup and 
closure of Rocky Flats, coordinated closure project planning, and the 
potential to share staff.

XII. Tort Claims

    DOE shall process and adjudicate all administrative claims and 
defend all litigation asserted under the Federal Tort Claims Act that 
arise from any activity of DOE with respect to Rocky Flats or any 
Covered Substance for which DOE is responsible under this MOU. Interior 
shall process and adjudicate all administrative claims and defend all 
litigation asserted under the Federal Tort Claims Act that are not the 
responsibility of DOE. Each Party shall cooperate and assist the other 
in providing information relating to any such claims.

XIII. Enforcement Actions

    As between the Parties, to the extent authorized by law and 
consistent with this MOU, DOE is responsible for responding to any 
administrative or legal actions brought to enforce the requirements of 
applicable laws or regulations concerning Covered Substances for which 
DOE has retained responsibility.

XIV. Delegation of Authority

    A. Each Party will appoint a Manager who will be responsible for 
overseeing the work performed under this MOU. Managers will have the 
responsibility to implement this MOU. Either Manager should be 
available to meet on site at least monthly as requested by the other 
Manager.
    B. The Manager for Interior will be the Refuge Project Leader 
appointed to oversee the Refuge and will serve as DOE's single point of 
contact for all activities at Rocky Flats and consultation requirements 
under section 7 of the Endangered Species Act.
    C. The Manager for DOE will be designated in writing by the 
Assistant Secretary for Environmental Management within 30 days 
following execution of this MOU.
    D. Any actions of the Managers that involve funding to implement 
this MOU will require DOE Headquarters review.

XV. Dispute Resolution

    A. Interior and DOE Managers shall make a good faith effort to 
resolve all disputes concerning the implementation of this MOU, 
including planning, management activities, and the transfer of property 
and facilities from DOE to FWS. If any such dispute cannot be resolved 
informally at the Manager level, Dispute Resolution may be initiated 
pursuant to this section.
    B. To initiate Dispute Resolution, the disputing Manager shall give 
to the other Manager a written notice of the dispute and the disputing 
Party's intent to initiate dispute resolution. The notice

[[Page 14457]]

shall include a detailed explanation of the dispute. Upon the other 
Manager's receipt of such notice, that Manager shall have 15 working 
days to provide to the disputing Party a written answer to the notice 
and explanation. The notice and answer, including any exhibits thereto, 
shall be the Record of Dispute. After such 15-day period has expired, 
the Managers shall make their best efforts to resolve the dispute 
within 20 working days.
    C. If the Managers do not resolve the dispute within 20 days, the 
dispute will be elevated to FWS's Regional Director and DOE's Rocky 
Flats Manager or successor. Within 30 working days of receiving the 
Record of Dispute, they shall confer and attempt to resolve the 
dispute.
    D. If the Parties do not resolve the dispute within 45 working 
days, the disputing Party may elevate the dispute to DOE's Assistant 
Secretary for Environmental Management and the Director of FWS. Within 
30 working days of such elevation, the Deputy Assistant Secretary for 
Environmental Cleanup and Acceleration and the Director shall confer 
and resolve the dispute.

XVI. No Third Party Rights

    This MOU is intended only to establish the terms and conditions for 
the transfer of the property described herein, and is not intended to 
create any right, benefit, or trust responsibility, substantive or 
procedural, enforceable by any person against the United States, its 
agencies, or any other person.

XVII. Cost Recovery, Contribution or Other Actions

    Nothing in this MOU is intended to prevent the United States from 
bringing a cost recovery, contribution, or other action that would 
otherwise be available under Federal or State law.

XVIII. MOU Modification

    This MOU shall remain in effect for both Parties, subject to 
modification by mutual agreement, made in writing and signed by both 
Parties.

Department of Energy.

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Paul M. Golan,
Principal Deputy Assistant Secretary for Environmental Management.
Date:------------------------------------------------------------------

Department of the Interior.

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Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
Date:------------------------------------------------------------------

[FR Doc. 05-5597 Filed 3-21-05; 8:45 am]
BILLING CODE 6450-01-P