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Cleanup of Department of Energy Sites is Focus of Intergovernmental Meeting
By Paula Cotter, Energy & Environment Counsel
Staff from a dozen Attorneys General offices attended a Dec. 11 -15 meeting with representatives of the U.S. Department of Energy (DOE) to discuss progress on the large, long-term project of cleaning up waste at the Department’s sites across the United States. This annual meeting allows professionals who work on many aspects of the cleanup to discuss common problems and potential solutions. The NAAG group, known as the NAAG-DOE Workgroup, is open to Attorney General staff members who work on enforcing the cleanup agreements in effect at DOE facilities located in California, Idaho, Illinois, Kentucky, Nevada, New Mexico, Ohio, Oregon, South Carolina, Tennessee, Utah, and Washington.
Attorneys General staff had an opportunity to discuss state issues among themselves before heading into a larger meeting with federal and state representatives and other interested parties. The larger group included DOE staff from the sites and program managers from the Department’s headquarters. Attendees also included representatives of the National Governors Association and the Environmental Commissioners of the States, the regulatory staff who are responsible for monitoring environmental compliance at the cleanup sites. Representatives of the Energy Communities Alliance, which is a consortium of municipalities and local governments neighboring the various sites, were also expected at the meeting. A number of Native American tribes were sending representatives because of the impact of the contamination and cleanup activities on tribal lands and lifestyles.
The intergovernmental meeting is the most recent phase in a process that has its roots in the Manhattan Project, started in 1939. During and after the Cold War, the DOE generated enormous amounts of waste, some radioactive, some non-radioactive, and some that poses both radioactive and chemical risk. In the 1980s states began to assert regulatory authority over the sites, using the “citizen suit” provisions of the major federal environmental acts. In various actions brought by states, the federal government asserted a defense of sovereign immunity, tailored to the pollution alleged and the facts of the case. Because states did not have sufficient and clear authority to govern the federal government’s pollution under the Resource Conservation and Recovery Act, Congress amended the law with the Federal Facilities Compliance Act. This Act required the development of cleanup plans for each of the Department’s major sites through the country. Today those cleanup plans are memorialized in enforceable cleanup agreements for each site. Some of the site cleanups move forward under consent decrees, some under administrative orders, and in Washington, under a tri-party agreement executed by the state’s Department of Ecology, DOE, and the U.S. Environmental Protection Agency.
The December meeting is part of the long, problematic implementation of the huge task of managing the cleanups of all the sites and all the waste. Several topics stand out as important areas for Attorneys General offices. First, they are carefully following the development of what is known as “footprint reduction” of the facilities. One aspect of footprint reduction includes the idea that DOE sites encompass a very large area and that in many cases, the site areas could and should be reduced. The process of transferring federal land is complicated because the federal agencies are bound by specific statutes and rules. Moreover, states have a particular interest in maintaining enforceable land use restrictions in some cases where land transfer is under discussion. Meshing state law with the federal constraints can be challenging. All these factors must be balanced with local interest and the ability to make use of real estate and facilities no longer necessary for the federal government’s mission.
Second, a part of the meeting was devoted to discussing risk-based prioritization for cleanup work. Recently, the Inspector General issued a report recommending that DOE consider revising its current remediation strategy and instead address environmental concerns on a national, complex-wide risk basis. This approach-- which is certainly not embodied in the existing, negotiated, enforceable cleanup agreements-- is predicted to “result in a form of environmental remediation triage.” An oversimplified way of explaining the risk-based strategy is that each cleanup task would be evaluated by how much risk of various potential harms it might cause to how many people, and the tasks with the highest scores would be done first. Moreover, the Inspector General’s recommendation to consider risk-based priorities is married to a recommendation that a national scientifically-oriented group evaluate the risks. States are skeptical and very interested in DOE’s response to the recommendation and its current thinking about risk assessment.
A staff member with the Blue Ribbon Commission on America’s Nuclear Future addressed the intergovernmental group. As its name suggests, the Commission is concerned with planning for nuclear waste disposition. Its members are drawn from a wide range of academic, scientific, governmental and industrial groups. It is charged with outlining the potential ways to handle nuclear waste in light of the decision not to go forward with the Yucca Mountain repository. Attorneys General staff at the meeting will followed the Committee’s update with interest, because its thinking may affect the future of the waste at their sites, and the waste from their states’ nuclear power plants.
More information can be found on the National Governors Association website, http://www.nga.org/cms/home/nga-center-for-best-practices/center-issues/page-eet-issues/col2-content/main-content-list/cleanup-of-the-nuclear-weapons-c.html.
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