Re: [CPEO-MEF] Risk-Based End State policy at Energy Department

[Lenny Siegel <lsiegel@cpeo.org>]

[The following is a response to my posting about the U.S. Department of
Energy's draft policy and guidance on Risk-Based Cleanup, from a DOE
Stakeholder Of Long Standing. - LS]

January 23, 2003

Lenny,

Your analysis of the DOE's so-called "new" risk based cleanup policy is
accurate, but understated.

The DOE's "risk-based cleanup plan" is essentially the same as before,
but less.  DOE has long argued that "it knows best" and that the current
cleanup plans are not adequately "risk based", but are rather based on
mere blind adherence to "bureaucratic rules and legal requirement that
are not technically based."  This air of technical superiority that DOE
assumes seems like a method to distract attention from efforts to simply
weaken cleanup requirements. It is like a magician's trick that works
because he used his banter to distract your eyes from what his hands are
doing.  This is the argument made by Leo Duffy from 1989 to 1993, who
sought input on his risk-based priority system (and some interpreted as
an "open season" on compliance agreements), while DOE field staff capped
land fills and seepage basins across the country (e.g., S-3 ponds at the
Oak Ridge site in Tennessee).  This is also the argument made by Tom
Grumbly as he:
* Launched a series of initiatives the engage regulators and the
National Academy of Science, 
* Hired one of the countries leading risk experts to head a new office
of risk management,
* Carried out extensive collaborative risk evaluation of dozens of sites,
* Revised many cleanup agreements to realign priorities, 
* Built trust with communities and regulators so people were open to
listening to DOE,
* Undertook a multiyear dialogue with state regulators to develop a
strategy for dealing with mixed waste based on broad information sharing
for overall elimination and sharing of risk, and
* Conducted for the first time an extensive "baseline" to determine the
estimated cost and scope of the DOE cleanup, thereby opening the closet
to let the skeletons out for discussion.
Similar to Leo Duffy's initiatives, DOE field staff continued seeking to
elude cleanup requirements in many cases.

The O'Leary/Grumbly era of openness was followed by the late Al Alm's
efforts to take the logical next step called the "Ten Year Plan"  (later
dubbed "Accelerated Cleanup:  Paths to Closure.")  He too tried (with
mixed success) to get field staff to engage in meaningful discussions
with regulators to realign priorities so that money was directed to
reducing risks and not to facility maintenance (e.g., replacing roofs on
building that should be torn down).  His plan was premised on the
recognition, borne of earlier baseline analyses, that the sooner you
complete cleanup the lower the cost because less will be spent on annual
overhead costs.

This is essentially the plan that is more in place today, although you
would never guess from the crass and blatant PR propaganda that is
spewed out almost daily from the DOE.  According to their new public
relations campaign (in lieu of rigorous technical analysis), this is all
a new idea, rather that the continuation of the strategy that evolved
from the efforts under Tom Grumbly and Al Alm.  The Soviet-style
reeducation campaign is an insult to the hundreds of DOE employees,
consultants and state and EPA regulators who labored for nearly ten
years to put the program on a sounder financial, technical, and
institutional footing.  It also misses the logical next step that was
needed:  deeper contract reform that tied performance and accountability
to bonuses, and sought to hire contractors who were in businesses to
environmental projects.  This was almost uniquely the case with awarding
the Rocky Flats contract to Kaiser-Hill, which is comprised of people
who have years o environmental experience and whose fortunes live and
die with their performance in the environmental arena, not aerospace and
defense contracts.  Instead of adding to the basic risk-based planning
efforts from 1989-2001 by emphasizing greater field implementation, DOE
chose to wrap the old plan in new press releases and superficial
non-rigorous, non-analytical and deeply flawed reports (e.g.,
"Top-To-Bottom Review" and "risk-Based Cleanup Strategy") and cut out
the critical public participation and enduring commitments that are a
sine quo non of a risk-based strategy. 

Aside from the lack of public participation, there is one key ingredient
that is clearly new (i.e., absent) in DOE's "new" strategy:  there is
little recognition of the value of effective long-term stewardship. 
Instead, as you note, there is only passing reference to a small part of LTS:
"When contaminants are expected to persist but can be isolated, risk concepts
should include effective and transparent institutional controls to
maintain isolation. Long term monitoring and surveillance methods must
be designed to assure that the contaminants remain sequestered and human
health and the environment are protected."
Missing is any discussion or planning for:
* Technical plans for carrying out long-term stewardship, mechanism for
enforcing the "promises" to maintain long-term stewardship,
* Establishment of needed institutions (e.g., how can local governments
be involved in the planning for remedies that will ultimately rely on
local land use controls), 
* Reliable funding sources,
* Investments in new technologies so that communities are not abandoned
with 20th Century technologies for waste that will last until the 30th Century.

Without these efforts, any containment remedy is no remedy, and any
promise for "institutional controls" is an empty promise.  As one
long-time state expert on the issue has observed:  "Institutional
Controls are fine, except there are no institutions and no controls. 
Other than that they are fine."

This is the only thing new about DOE's so-called "new" risk based
strategy and policy - the elimination of the DOE previous efforts at
establishing a long-term stewardship program.  Last year (FY 2003) the
DOE's long-term stewardship office (aka "EM-51") was essentially shut
down by the new regime's cutting out all funding for analytical support.
 This year's budget proposal (FY 2004, announced in a few weeks) will
finish the job by eliminating entirely the Office of Long-term
Stewardship, which had nominally existed, even though it had been
defunded and sidelined from any meaningful role in DOE's "new" strategy.
  The line where there had been a funding level indicated for the Office
of Long-term Stewardship, albeit zero funding last year, is expected to
be missing entirely in the Bush Administration's FY 2004.  Unless an
astute reader of the budget knew what to look for, it will not be
missed.  The "function" is slated to move to the DOE's "Office of Worker
and Community Transition" newly renamed the "Office of Legacy
Management" and managed by a political appointee (Mike Owen) with no
experience or connection to EM issues, and will be cutoff from any
relationship to the cleanup program.  Contrary to every analysis of the
need for institutional controls (e.g., PEIS study released in Oct 2001),
DOE's reorganization may result in long-term stewardship and
institutional controls NOT being considered during remedy selection
(except at the insistence of regulators or initiative of rogue DOE
employees and contractors).  The Long-Term Stewardship office will not
even be represented in the room where EM decisions are made, much less
have a seat at the table.  The new office will likely be dominated by
its other issues such as worker pensions and grants to community reuse
organizations for reindustrialization (i.e., NDAA 3161).

There are certainly some potential upsides to reorganizing LTS into a
separate office outside of EM.  The new office will have the
independence to refuse to accept management responsibility unless
certain conditions are met.  In fact, recent "transfer criteria"
released from DOE could provide an extremely constructive template for
making those transfer decisions.  The problem could be that the new
organization will have a tough time refusing to accept transferred sites
since each site transferred can be claimed as a "cleanup."  There will
be enormous pressure to shift responsibility for sites to the new legacy
office and thereby label the site as "cleaned up by the bean-counters at
headquarters.  On the other hand, it is not as though the old LTS Office
buried under EM's Science and Technology Office was a bureaucratic
powerhouse where it was located.  So, the new office had some chances to
succeed if there is sufficient internal and external support so that it
is not forced to take on unfunded liabilities, as DOE has done to so
many states and communities.  We'll see.  As the Missourians around the
ill-fated Weldon Spring site say:  "Show Me."

Unfortunately, the "new DOE", using partially retreaded version of old
ideas seems to value writing breathless HQ political prose about
accelerated cleanup rather than investing in the complex technical and
institutional legwork and management heavy lifting work to accomplish
real cleanup in the field.  Again, there are many pros and cons to the
new reorganization and it could be a net positive.  More public
involvement could have helped identify and avoid the pitfalls and
emphasize the positive.

Unfortunately this attempt at PR semantic detoxification, rather than
honest technical work in the field, will fail, and communities and
taxpayers will ultimately pay the price.  The contamination will not go
anywhere; it will only spread and become more expensive the deal with
later.  The records that are lost (location of residual contamination,
levels of cleanup achieved, etc.) will need to be recreated at great
cost.  Perhaps most damaging, public trust, now broken, will take many
years to rebuild, and a rational risk-based cleanup strategy that
incorporates the necessary long-term stewardship effort will only be
years away as communities remember the broken promises of the DOE and
insist that the site be cleanup completely, however costly or
technically difficult or irrational.  Based on the "new" DOE plan,
however, the mistrust will be completely rational.  The old adage
applies here:  "Fooled me once shame on you, fooled me twice, shame on
me." 

Signed,
A DOE Stakeholder Of Long Standing 

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

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