Fwd: Judge Rules on DOE case

["Michael C. Baker" <mcbaker@lanl.gov>]

>X-Sender: skirshen@pop.erols.com
>Date: Thu, 01 Jul 1999 09:28:24 -0400
>From: ECA Server <server@energyca.org>
>Subject: Judge Rules on DOE case
>
>The following news story was written by the Paper, Allied-Industrial,
>Chemical and Energy Workers Union (PACE)
>
>WASHINGTON, June 30 /PRNewswire/ -- A June 29, 1999 decision by
>U.S.District Court Judge Gladys Kessler has found that the Department of
>Energy's ("DOE's") ongoing recycling of thousands of tons radioactive
>metals for commercial uses -- which might include eating utensils, hip
>replacements, baby carriages or many other consumer items -- poses "great"
>and unexamined
>potential for environmental harm, according to Paper, Allied-Industrial,
>Chemical and Energy Workers Union (PACE).
>
>Judge Kessler found that "[T]he potential for environmental harm is great,
>especially given the unprecedented amount of hazardous materials which
>Defendants seek to recycle."
>
>The suit concerned a quarter billion dollar contract awarded in 1997 by
>the DOE to BNFL, Inc., a subsidiary of the British Nuclear Fuels, Ltd., to
>decommission and decontaminate three uranium enrichment plants at DOE's Oak
>Ridge, Tennessee nuclear reservation.  These three facilities contain an
>estimated 100,000 tons of radioactive metals.  The government's contract
>provides that BNFL can choose to recycle decontaminated metals by selling them
>into the scrap metals market.
>
>The Judge termed "startling and worrisome" the absence of opportunity for
>"public scrutiny or input on a matter of such grave importance."  She
>explained that "[t]he lack of public scrutiny is only compounded by the fact
>that the recycling process which BNFL intends to use is entirely experimental
>at this stage."  She stated it was "quite troubling" that the Department of
>Energy and BNFL "have provided no adequate explanation" as to why an amendment
>to the EPA's Environmental Agreement for Oak Ridge was finessed in such a way
>to avoid "public notice and comment opportunities."
>
>Notwithstanding these risks,  Judge Kessler stated that she could not
>order the DOE to perform an Environmental Impact Statement (EIS) because
>citizens are barred from bringing suit by a provision of Superfund law until
>after the cleanup is complete.  "In the absence of Section 113(h) [of
>Superfund], the Judge declared, "an EIS would clearly be mandated under NEPA."
>
>In the lawsuit, the Paper Allied-Industrial Chemical & Energy Workers
>Union ("PACE"), the Natural Resources Defense Council ("NRDC"), and several
>Tennessee citizens groups contended that the recycling was a "major Federal
>action which would significantly affect the environment," and asked the Court
>to block DOE from recycling radioactive metals without first performing an
>environmental impact statement as required by the National Environmental
>Policy Act ("NEPA").
>
>The Judge found, there "is ample evidence that the proposed recycling
>significantly affects the quality of the human environment."  The Judge
>pointed out that "Plaintiffs allege, and Defendants have not disputed, that
>there is no data regarding the process' efficacy or track record with respect
>to safety."
>
>The Judge explained that "no national standard exists governing the
>unrestricted release of volumetrically contaminated metals" such as the
>contaminated nickel which will be recycled.  She noted that "[t]he result is
>no oversight by any federal regulatory agencies."
>
>"In light of the Judge's findings, the Energy Secretary should rise above
>the loopholes in the Superfund law and do the right thing by preparing an
>environmental impact statement," stated PACE Executive Vice president Robert
>Wages. "The public already has enough worries about the safety and security of
>DOE's nuclear operations."
>
>Excerpts from the Court's Opinion in Oil, Chemical and Atomic Workers 
>International Union ("OCAW") ALF-CIO et al. v. Frederico Pena, Secretary of 
>Energy and the United States Department of  Energy, et al.
>
>
>"The Court acknowledges and shares the many concerns raised by Plaintiffs
>and Intervenors.  The potential for environmental harm is great, especially
>given the unprecedented amount of hazardous materials which Defendants seek to
>recycle.*  The parties have not provided the Court, however, with any evidence
>of the safety of recycling in comparison with any other method of disposal.
>
>The Court is further concerned by the fact that no national standard
>exists governing the unrestricted release of volumetrically contaminated
>metals.  Both EPA and NRC have attempted to develop federal regulatory
>standards for volumetrically contaminated metals but both agencies have tabled
>their efforts in order to focus on other concerns.  The result is no oversight
>by any federal regulatory agencies.  Instead, TDEC, which has neither the
>resources nor the extensive expertise of a national regulatory agency, is the
>only body with any supervisory power.
>
>Section 113(h) is very clear, however, that courts are not to interfere
>with ongoing cleanup actions.  The fact that EPA and NRC, after taking years
>to try to develop national standards, were unable to do so because of
>inability to develop consensus in the scientific community does not relieve
>the Court from applying Section 113(h) in accordance with Congressional
>intent.
>
>Plaintiffs and Intervenors have also raised legitimate concerns as to the
>lack of public notice and comment surrounding the entire process by which
>Defendants settled on recycling as a disposal method.  While it is true that
>Plaintiffs and Intervenors had an opportunity to raise their concerns during
>the first and only public comment period following publication of the EE/CA,
>it is nevertheless startling and worrisome that from that early point on,
>there has been no opportunity at all for public scrutiny or input on a matter
>of such grave importance.
>
>The lack of public scrutiny is only compounded by the fact that the
>recycling process which BNFL intends to use is entirely experimental at this
>stage.  The process has not been implemented anywhere on the scale which this
>project involves.  Plaintiffs allege, and Defendants have not disputed, that
>there is no data regarding the process' efficacy or track record with respect
>to safety.  Furthermore, even as of March 18, 1999, when parties appeared
>before the Court for a Status Conference, it was not fully clear when BNFL
>would be granted the legal rights to use the recycling process.
>
>While the concerns raised by Plaintiffs and Intervenors are entirely
>legitimate, this Court must nevertheless follow the dictates of the applicable
>Congressional statute.  Congress enacted Section 113(h) for the best of
>reasons -- namely to prevent interference with the efforts to cleanup
>hazardous, contaminated sites.  Whether or not the situation here is what
>Congress had in mind, the Court cannot ignore the clear wording of section
>113(h).  At this stage, where the government has structured and begun a
>complex cleanup action, Section 113(h) makes abundantly clear that the Court
>is not to interfere."
>
>footnote:
>* While the parties dispute the exact amount of metals subject to
>recycling, at least 100,000 tons of metal are scheduled to be recycled
>pursuant to the proposed recycling plan.
>

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