Number AI02-01CH1107 Between the
U.S. DEPARTMENT OF THE INTERIOR
U.S. FISH & WILDLIFE SERVICE
LONG ISLAND NATIONAL WILDLIFE REFUGE COMPLEX
And the
U.S. DEPARTMENT OF ENERGY
CHICAGO OPERATIONS OFFICE
BROOKHAVEN GROUP  

At The Brookhaven National Laboratory, Upton, New York

PART A.  INTRODUCTION

I.  PURPOSE

This Interagency Agreement (IA) between the U.S. Department of the Interior, U.S. Fish and Wildlife Service, Long Island National Wildlife Refuge Complex (FWS) and the U.S. Department of Energy, Chicago Operations Office, Brookhaven Group (DOE) is hereby entered into under the authority of the Economy Act, 31 U.S.C. Sec. 1535, the Atomic Energy Act, as amended, 42 U.S.C. Sec. 2011, et. seq., and the Energy Reorganization Act of 1974, as amended, 42 U.S.C. Sec. 5801, et. seq.  This IA identifies expert technical services to be provided by FWS for the purpose of cooperatively conserving, enhancing, and managing the habitat and ecological resources of an approximately 530-acre portion of the Brookhaven National Laboratory (BNL), represented graphically by Enclosure (1) to this IA.  This area shall be permanently designated as the Upton Ecological and Research Reserve, hereafter referred to as the “Reserve.”

BNL is a multipurpose research and development national laboratory funded and administered by DOE.  BNL is operated and managed by Brookhaven Science Associates (BSA) under contract to DOE.  Oversight of the BSA activities is provided onsite by the DOE Chicago Operations Office, Brookhaven Group.  Collectively, DOE and FWS shall be referred to hereafter as “the Parties.”   BNL’s primary mission is scientific experimentation and research in a variety of disciplines.  While this IA anticipates opportunities and a long-term plan to conserve, enhance, and restore habitat and wildlife at the designated area of BNL, DOE and FWS acknowledge that decisions and actions concerning ecological management taken pursuant to this IA will be consistent with BNL missions, commitments, and obligations.

II.  BACKGROUND

BNL was established in 1947, on the grounds of a former U.S. Army camp, Camp Upton, as a place for research on peaceful uses of the atom.  Located on a 5,265-acre site on eastern Long Island, New York, BNL operates large-scale facilities for studies in physics, chemistry, biology, medicine, applied science, and advanced technology.  The Laboratory’s 3,000 scientists, engineers, and support staff are joined each year by more than 4,000 visiting researchers from around the world.  BNL is the home of four Nobel-Prize-winning discoveries in physics.  In addition to its scientific research mission, BNL strives to be a community asset through its research, by promoting science literacy and by welcoming community participation in many BNL activities.  Each year, thousands of students, from the elementary grades through post-graduate levels, take advantage of learning and research opportunities under the guidance of educators and scientists at BNL. 

Due to a legacy of past operations, BNL was listed on the National Priorities List (NPL) on November 21, 1989, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Sec. 9601, et seq..  Pursuant to CERCLA, 42 U.S.C. Sec. 9620, DOE, the U.S. Environmental Protection Agency Region II, and the New York State Department of Environmental Conservation entered into a federal facility interagency agreement on February 28, 1992.  Cleanup and remediation of contaminated areas have been, and continue to be, conducted in accordance with the interagency agreement process.  While the Reserve designated by this IA is free of surface and air contamination,  groundwater monitoring is being conducted by DOE in the Reserve itself and will likely continue for the foreseeable future.  The only identified surface contamination in the vicinity of the Reserve is in the Peconic River.  The Peconic River and a 250-foot buffer zone are excluded from the Reserve. The levels of contamination in the Peconic River and buffer zone do not pose a threat to human health.

The Reserve specified by this IA for ecological management by FWS is not considered to be excess property by DOE.  This property continues to provide a valuable safety and security buffer for BNL activities.  The establishment of the Reserve, however, demonstrates DOE’s commitment to preclude future development of the property.  The Reserve shall permanently remain a site dedicated to habitat and ecological conservation, restoration, enhancement, and non-destructive research.  DOE retains land ownership and responsibility for environmental restoration, safety, law enforcement, environmental compliance (including permitting and NEPA), emergency services (including fire suppression and emergency management), firebreak and access road maintenance (including trimming of tree canopy, disc harrow of firebreaks, road cover, and road signs), maintenance of clearance for power line right-of-way, security (including access control) for the Reserve, and any other ongoing/planned activities in support of DOE’s mission.  FWS will not exercise law enforcement authority in the Reserve and at BNL. Management of an emergency will be led by BNL’s emergency response organization.  All emergency operations will be conducted in an environmentally responsible manner with input taken from FWS by the BNL emergency response organization.  Use of the Reserve must be consistent with DOE’s mission needs and environmental stewardship responsibilities.  As the landowner, DOE retains the ultimate decision authority on all activities within the Reserve.  This DOE authority includes, but is not limited to, approval, denial, and the ability to order the immediate cessation of any and all activities within the Reserve or conducted under the authority of this IA.

In light of the above, this IA is designed to recognize DOE’s goal to conserve, restore, and enhance the habitat and wildlife within the Reserve.  The IA is also designed to recognize that DOE needs the ecological expertise, experience, information, management, and assistance of the FWS in order to meet DOE’s goal for the Reserve and DOE’s ongoing environmental stewardship role over the Reserve.              

PART B.  ACCESS TO THE RESERVE

I.  GRANT OF ACCESS

The DOE, acting as the federal Agency with jurisdiction, custody, and control over the Reserve, hereby grants to the FWS access to and use of the Reserve.  The Reserve encompasses approximately 530 acres lying within the BNL boundaries, as displayed graphically in Enclosure (1).  The Peconic River and a 250-foot buffer zone around the Peconic River are not considered part of the Reserve. DOE and BSA employees, contractors, and subcontractors retain the right to immediately enter the Reserve in cases of emergency and in non-emergency situations after coordination with FWS.

II.  COORDINATED ACCESS PLAN 

After this IA is placed into in effect, a Coordinated Access Plan shall be prepared jointly by DOE, FWS and BSA, and approved by DOE.  This Coordinated Access Plan shall provide for training, badging, environmental compliance, security, safety, communication, and emergency evacuation requirements necessary for both escorted and unescorted access to the Reserve by FWS employees, contractors, and subcontractors, or others entering under the authority of and through FWS. 

PART C.  ENVIRONMENTAL, SAFETY, AND HEALTH

I.  ROLES AND RESPONSIBILITIES

The Parties will comply with all federal, state, and local laws and regulations, as well as BNL requirements, that apply to their activities within the Reserve. They will ensure that all operations conducted by themselves or by those under their authority are protective of the environment and of human health and safety.  Each Party will identify to the other any licenses, permits, certifications, or authorizations that it determines to be required to comply with this paragraph.  The Parties will work cooperatively with other regulators in carrying out their responsibilities under this IA.  Where appropriate, FWS shall consult with BSA Environment, Safety & Health (ES&H) subject matter experts prior to the commencement of work within the Reserve.  

The nature of the work done by the FWS does not constitute a transfer of administrative jurisdiction of the real property that is the subject of this management agreement, and DOE retains administrative jurisdiction for this property.  In addition, the parties do not believe that the activities to be conducted by the FWS for the DOE in its capacity as the agency having administrative jurisdiction would provide a basis for the transfer of administrative jurisdiction to the FWS.  In the event that jurisdiction for the real property that is the subject of this management agreement is expected to change or does change in the future, the FWS reserves the right to terminate this agreement.  

DOE expressly recognizes that it is responsible for all releases of hazardous substances and all contamination arising out of or resulting from its activities within or adjacent to the Reserve.  Specifically, DOE expressly recognizes that it is responsible for all site investigation costs, response costs and other costs (including, but not limited to, fees, fines, penalties, judgments, and interest), (1) arising out of or resulting from releases of hazardous substances, or the presence of other contaminants or equipment, within or adjacent to the Reserve prior to or after the effective date of this MOA, and (2) arising out of or resulting from the activities of DOE, DOE employees, DOE contractors , DOE subcontractors, and others entering the Brookhaven site under the authority of the AEA, or other Federal agencies that had administrative jurisdiction over the Brookhaven site in the past; and in the event that the FWS is alleged to be or is held liable for any such expenses related to response actions or corrective actions on the real property covered by this management agreement, DOE shall conduct those response actions or corrective actions found to be necessary after the date of this management agreement.

The authority granted to FWS in this IA is limited to the cooperative ecological management of the natural resources within the Reserve.  Nothing herein shall be construed as authorizing the FWS to manage or conduct any operations within the Reserve with respect to any hazardous substances or other contamination present at the time this IA becomes effective, or otherwise related to DOE activities or activities of third parties not under the direction or control of the FWS.  DOE acknowledges that it shall have exclusive responsibility for any prior or subsequent releases of hazardous substances originating from such contamination, whether or not such releases result from actions of the FWS or others under the FWS's authority for the purposes of implementing this IA.  DOE expressly recognizes that it shall maintain exclusive federal responsibility for all costs associated with any investigation of Reserve conditions and any cleanup, removal, or remedial action or other compliance, closure, maintenance, restoration, or cleanup-related activity required by federal, state, or local laws or regulations that arise as a result of releases of hazardous substances (hazardous substances, for the purposes of this IA, shall include, but not be limited to, nuclear material under DOE’s Atomic Energy Act authority, any hazardous or toxic substance, material or waste, or oil products or their derivatives) existing on the Reserve on the effective date of the IA, or otherwise resulting from Reserve activities, including the activities of DOE employees, contractors, subcontractors or others entering for DOE approved purposes.

• Develop management guidelines to conserve and enhance the natural attributes and valuable resources of the Reserve.  This includes conservation/preservation of any federal or state-listed endangered, threatened, or special concern species.

• Provide lead technical expertise and direct technical advice to DOE for the ecological management of the Reserve, and provide technical oversight on the development and implementation of Natural Resource Management Plan elements pertinent to the Reserve.

• Obtain deer population estimates and provide habitat management recommendations to DOE.

• Provide technical expertise, recommendations, and input to DOE for the consultative process with stakeholders (including general public and other agencies) regarding the Reserve and its management. This includes attending public meetings, sharing of technical information, discussions, explanation of technical recommendations, and review of stakeholder comments and responses.

• Assist DOE in arranging for, developing, and providing controlled-access educational activities related to natural resource management for local school children and youth groups (e.g., development of an environmental education activity site and associated field curricula, guided trips, bird nesting enhancement project).

• Consult with DOE regarding the ecological management of the remainder of the BNL property in relation to the Reserve, to ensure that activities are integrated and compatible.

• Provide a technical review and response to DOE on consultations of projects/activities DOE may propose to conduct in the Reserve, in accordance with DOE’s missions.

• Conduct a Global Positioning System boundary survey of the parcel identified by DOE as the Reserve.

• Develop appropriate, accurate verbiage for DOE boundary signs outlining authorities, penalties, etc. for unauthorized access.

• Post the appropriate DOE boundary signs around the Reserve.

• Provide technical review and recommendations for group or individual “use requests” to ensure compatibility with the Reserve and overall BNL conservation goals and ecological management.

• Serve as member of the Technical Advisory Group (TAG), consisting nominally of agents or representatives from the FWS, the New York State Department of Environmental Conservation, the Central Pine Barrens Commission, The Nature Conservancy, the Peconic Estuary Program, a member of the BNL Citizens Advisory Council, a member of the Brookhaven Executive Roundtable, BSA, and DOE. The TAG will provide input to the development of the comprehensive Natural Resource Management Plan for the Reserve. The TAG would also be involved in developing the criteria for the solicitation, evaluation, and review of research proposals to be conducted on the Reserve. Proposed research objectives include environmental assessment and monitoring, prediction, and demonstration.

• Review and approval, with DOE concurrence, and disbursement of funds for research conducted in accordance with the guidance developed by the TAG.

• Maintain and repair equipment purchased under the IA.

II.  DELIVERABLES

A proposed annual Work Plan for the upcoming federal fiscal year shall be submitted to DOE, with a copy to BSA, not later than September 1st of the preceding fiscal year.  This annual Work Plan shall include a listing of proposed projects, delivery dates, and a budget.  This annual Work Plan may be submitted in a format mutually acceptable to FWS and DOE.  DOE shall have final approval of the annual Work Plan.  Final approval of the annual Work Plan shall be accompanied by the appropriate amount of DOE funding for those projects approved in the annual Work Plan.  The first annual Work Plan and budget under this IA shall be submitted not later than one (1) month after the two (2) term employees have started work within the Reserve. 

An annual Progress Report, summarizing the preceding fiscal year’s activities, shall be submitted to DOE, with a copy to BSA, not later than October 30th.  This report shall be submitted in a format mutually acceptable to DOE and FWS.

PART E.  ADMINISTRATIVE

I.  REPRESENTATIVES

The Parties designate the following Representatives for the purposes of administering and implementing this IA. A Party may name a new Representative at any time upon 10 days written notice to the other Party’s Representative. Any notices or reports or other documents to be furnished by each Party to the other pursuant to this IA shall be sent by first class mail to the named Representative herein.  Any other means of transmittal may be used if the receiving Representative acknowledges receipt in writing.

a.  The FWS:

U.S. Fish & Wildlife Service
Long Island National Wildlife Refuge Complex
P.O. Box 21
Shirley, NY 11967

Project Officer:  Mark Maghini, Supervisory Biologist
Telephone: 631-286-0485

b. The DOE: 

U.S. Department of Energy, Brookhaven Group
Brookhaven National Laboratory
53 Bell Avenue
Upton, NY 11973

Program Officer: Robert Desmarais
Telephone: 631-344-5434

The DOE Representative will provide direction to the FWS regarding the activities conducted under this IA that do not change the scope, schedule, or cost of those activities. 

II.  AVAILABILITY OF FUNDING

Implementation of this IA by DOE and FWS is subject to the requirements of the Anti‑Deficiency Act, 31 U.S.C. Sec. 1512, et seq., and the availability of appropriated funds. Any requirement for the payment or obligation of funds by FWS or DOE established by the terms of this IA shall be subject to the availability of appropriated funds.  The Parties acknowledge that neither DOE nor FWS will be required under this IA to expend agency-appropriated funds unless and until an authorized officer of that agency affirmatively acts to commit to such expenditures as evidenced in writing.  The Parties further agree that the FWS shall not, in the execution of the tasks set forth in this IA, incur expenses, charges, or liabilities in excess of the funding obligated by DOE under this IA, and that DOE shall not be liable or responsible for any charges, expenses, or liabilities in excess of funding obligated by DOE under this IA. 

DOE has $200,000 available for obligation for FY2001 and intends to budget an additional $200,000 per year for the next four years.  All funding will be transferred from DOE to FWS via an Economy Act order(s), which will include this IA.

III.  PROPERTY ON THE RESERVE

Consistent with applicable laws and the availability of appropriated funds, any property owned or under the jurisdiction of one agency that is damaged or destroyed as a result of the negligence and or willful misconduct of the other agency or its authorized representatives, directly attributable to the operations and activities described in this IA, and not attributable to any preexisting conditions, shall be promptly repaired or replaced by the agency to the reasonable satisfaction of the agency whose property was damaged.

In the event of a change in mission at BNL that might require termination of access or greater restriction of access than currently envisioned, or in the event of termination of the IA, the DOE shall endeavor to provide notice of the anticipated change(s) to the FWS (and any other task-involved individuals or groups specified by the FWS) at the earliest practicable point.  Following a termination by the DOE under this authority, the FWS and other such task-involved individuals or groups shall have up to 90 days to remove any personal property and equipment from the Reserve subject to coordination with DOE and BNL representatives. The time duration of property removal and the method of removal of structures, whether real or personal property, is subject to FWS and DOE joint approvals, which will not be unreasonably withheld. Any FWS property fixed or attached to the land within the Reserve will remain the property of the FWS, and the FWS may remove it upon termination of this IA. The FWS and any FWS-designated task-involved individuals or groups are responsible for disposal of any of their property removed under this section.

Upon the completion or termination of this IA, equipment purchased by FWS with DOE funds or loaned to FWS by DOE shall be returned to DOE. 

IV.  ASSIGNMENT

Assignment of this IA or any responsibilities, interests, or claims under this IA by FWS must receive advance written approval by DOE.

V.  MODIFICATION OR TERMINATION

The Parties may modify this IA; however, any changes to the IA must be in writing and signed by both Parties. Consistent with the governing Economy Act order paragraph b.,  General Provisions/Requirements section, each Party may terminate this IA at any time by providing 30 days advance written notice to the other Party.  If a change to DOE's mission at BNL requires termination of this IA, the DOE will provide notice of the anticipated change at the earliest practicable time to the FWS and any other task-involved individuals or groups as are identified to DOE by FWS. 

VI.   DISPUTES/ISSUE RESOLUTION

All disputes or unresolved items or issues shall be resolved in accordance with the governing Economy Act order paragraph d., General Provisions/Requirements section.

VII.  FREEDOM OF INFORMATION ACT REQUESTS AND PUBLIC

        INFORMATION COORDINATION 

FWS and DOE agree that any requests for information received under the Freedom of Information Act (FOIA) shall be processed in accordance with the receiving agency’s FOIA regulations; however, the receiving agency agrees to consult the other agency prior to the release or denial of any information requested under the FOIA.

FWS and DOE also agree that prior to the release of any significant information regarding this IA, the Reserve or management thereof, such as a statement to the press, they shall consult together regarding the content of such a release.

VIII.  EFFECTIVE DATE AND PERIOD OF PERFORMANCE

This IA is effective on the date the last Party signs this IA and the governing Economy Act order, from DOE to FWS, is executed and accepted.  It is the intention of the Parties that this IA shall remain in effect for a 5-year term from the effective date, subject to modification, termination, and availability of appropriated funds as previously discussed herein.  The Parties recognize, however, that the work described in this IA shall be funded annually.  All work, as well as the continuance of this IA on an annual basis, shall be subject to the availability of appropriated funds.