Staff Reports
WC Monitor
9/4/2015
The governors of Washington and Oregon are asking Congress not to proceed with recommendations in a report on environmental management risk ordered by the last federal omnibus appropriations bill. The recommendations would substantially reduce states’ authority over environmental cleanup projects, including taking away the right to have disputes over missed milestones settled in federal court, the two governors said in a joint letter sent to leaders of the Senate and House Appropriations energy and water subcommittees. “I am deeply trouble by the report’s findings and recommendations,” said Washington state Attorney General Bob Ferguson in a separate letter to congressional leaders. “To be blunt, the report’s recommendations are misinformed and reckless.”
The congressionally mandated review was intended to assess how effectively the Department of Energy identifies, programs, and executes its plans to address risks related to environmental cleanup. “However, the report fails at this task by instead focusing primarily on ways to reduce costs rather than reducing risks to public health and safety,” said Washington Gov. Jay Inslee (D) and Oregon Gov. Kate Brown (D). Recommendations could lead to less protective cleanup at sites that pose enormous threats to human health and the environment, they said. The report on the review, titled “A Review of the Use of Risk-Informed Management in the Cleanup Program for Former Defense Nuclear Sites,” was conducted by an independent committee organized at DOE’s request by the Consortium for Risk Evaluation with Stakeholder Participation. “We are as frustrated as anyone by the slow pace and the high cost of cleanup at Hanford and other DOE sites,” the governors said. “Yet abrogating states’ rights is not the solution.”
The review concluded that the increasing use of litigation and consent decrees to enforce missed cleanup requirements and milestones established in federal facility agreements, such as the Tri-Party Agreement at Hanford, skews priorities. It results in the nation’s limited cleanup funds being used for requirements and milestones picked by states independent of the risks posed and without consideration of the competing cleanup priorities across the nation, the review said. The report proposes an alternative dispute resolution process to be conducted by a panel of independent experts established by the federal government. The panel’s decision would be binding, subject to an opportunity for review by the U.S. Court of Appeals for the District of Columbia. “This process would ensure that disputes about federal facility cleanup priorities would be resolved through a national perspective,” the report said. It recommended that legislation be passed to remove the option of a consent order or consent decree to resolve enforcement of federal facility agreements.
Ferguson called that proposal troubling. “Energy is decades behind schedule at Hanford,” he said of the ongoing cleanup program at the former nuclear site. “Although we have frequently negotiated and re-negotiated deadlines and milestones, Energy has made litigation an unfortunate necessity by failing to comply with its obligations and refusing to be accountable for its failures,” he said. The state currently is in court seeking enforcement of pending missed milestone deadlines in the 2010 Hanford consent decree. “Just months after we negotiated a new schedule with Energy for certain milestones, Energy informed us that it would be unable to meet nearly all of the milestones that it had just agreed to,” Ferguson said.
A recommendation to establish a standing interagency task force would specifically exclude states from critical decision-making and legal processes at individual sites, the governors said. The task force is proposed to advise and assist DOE in setting cleanup priorities, allocating resources, and providing flexibility in milestones. It could provide more consistency in cleanup decisions across the nation, after the committee conducting the review found substantial inconsistencies in how site remediation decisions were made among facilities across the DOE complex. Cleanup plans for some sites are substantially more costly than those used at other locations, which results “in misdirection of scarce cleanup resources and slowing risk reduction across the complex,” the review said. “More cleanup progress would be achieved and overall protection of health and the environment would be increased by using the most cost-effective best practices among DOE sites to address similar risks at all sites.”
It questioned why 99 percent of waste is required to be removed from Hanford’s single-shell tanks, a standard not followed at all sites. It also questioned whether standards are too high for remediation of the Hanford river corridor. Cleanup is being done to a standard set for residential use, and chromium is being dug up down to groundwater to meet state standards, the report said. Decisions on this effort appear not to follow the Comprehensive Environmental Response, Compensation, and Liability Act decision-making process, increasing the cost of cleanup of the 220 square miles of the river corridor at Hanford to $3.8 billion over almost 20 years, the report said.
The governors said the report improperly discounts the applicability of state regulation as being excessive, costly, and not properly vetted. The tank closure and waste treatment requirements of the Research Conservation and Recovery Act and corresponding state law are the only clear legal requirements that force DOE to remove and treat high-level tank waste at Hanford, the governors said. Curtailing state authority has already proven to be ineffective, they argued. DOE has clearly demonstrated that without active state involvement and oversight, compliance with environmental laws at Hanford would not be achieved, according to their letter. Numerous recommendations in the report would roll back important legislation that provides states with the means to ensure protection of health and the environment, they said.
The state’s proposal to amend the Hanford consent decree to add about 100 new milestones and further tank waste requirements has the potential to significantly increase costs to the Hanford cleanup, the report said. It questioned why Hanford should receive 38 percent of the current national cleanup budget while other sites receive far less. “It is not evident to the committee that current allocations among DOE sites correlate to the relative risks at one site versus another,” it said.
The Omnibus Risk Review Committee, which prepared the report, will collect comments and questions, likely including from Congress, and then respond, said Michael Greenberg, committee chairman. The states provided comments before the report was finished, and some of their ideas were incorporated in the report, he said. He also said he was pleased to see interest among state officials in the report.
