The Continuing Assault:

How the Department of Energy
Avoids the National Environmental Policy Act,
Breaks Public Trust, and Fails to Protect
the Environment in Oak Ridge, Tennessee





Table of Contents

Acknowledgements
Introduction
Importance of Public Participation
NEPA and the Oak Ridge Reservation
Case Study I. Public Participation: Successes and Failures
Case Study II. Improper Use of Sedimentation
Case Study III. Abuse of the Categorical Exclusion
Case Study IV. Use of CERCLA to avoid NEPA
Conclusions and Recommendations




Acknowledgements

The Oak Ridge Environmental Peace Alliance first became aware of the National Environmental Policy Act in 1990 when the Natural Resources Defense Council and the Military Production Network hosted workshops in Washington, DC. Since that time, we have observed DOE's NEPA activities in Oak Ridge, have worked to educate the public about NEPA, have participated in public meetings, have studied documents and provided comments, and have even filed lawsuits over NEPA.

This study brings to bear the extensive experience of not only the authors, Ralph Hutchison and Mary Bryan, but many of the members of OREPA. While the authors are solely responsible for errors in this manuscript, we wish to credit others for their assistance and support during the preparation of this study.

While many of those who helped remain unnamed here, a few deserve special mention for their review of this text and their helpful suggestions. We thank Janice Morrissey, Danielle Droitsch, Jean Ramirez and Heather Bryan especially.

OREPA is a project of the Foundation for Global Sustainability, and its staff is supported by the hard work of a Decision-Making Council. We are grateful to Betty Coleman, Linda Ewald, John Gill, Janice Morrissey, Tom Waters and Jamie Webster for their service and support.

A limited number of copies of this report are available by calling the OREPA office at 423 483 8202 or e-mailing a request to orep@earthlink.net.






Introduction

The purpose of the National Environmental Policy Act (NEPA) and the regulations of the Council on Environmental Quality which govern the application of NEPA is "to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment."1 The actual regulations which implement the law are eminently practical. They reflect the nation's growing awareness in 1970 that care for the environment is crucial if we are to continue to live and thrive as a species. They are also grounded in common sense.

Federal agencies which undertake actions which might have an environmental impact generally write their own policies and develop guidelines for their officers which explain how NEPA is to be applied and who is responsible for making decisions. The Department of Energy has published implementing procedures2 which have been supplemented by specific Secretarial policy statements,3 and guidance from DOE's NEPA Oversight office which, based on the Secretarial policy, is binding on DOE personnel.4





Importance of Public Participation

NEPA seeks to guarantee that environmental impacts are given full consideration in the decision-making processes of the federal government through public participation. NEPA envisions this decision-making process as a consultative process with regularly scheduled conversations between government officials and the general public each time an activity which might have an environmental impact is being considered by the government.

NEPA requires that the public be involved in environmental studies for three reasons:

  • The public may have more information about the local environmental conditions than federal officials. For instance, the existence of caves, springs, sinkholes, or other unusual natural formations may not be readily apparent to federal officials. Having local residents who have tramped through, hunted over, lived or farmed on land in the past identify geologic peculiarities may save the government time and money. In other instances, the public may have information about past uses of land-for mining, for a waste disposal area, for burial of human remains-which federal officials would not be expected to know. Disclosure in a scoping hearing can significantly impact the eventual decisions about the proposed project.
  • The public may have suggestions and comments which contribute to a better decision. NEPA presumes that federal officials and their contractors do not exhaust the potential for good ideas; NEPA believes that two heads are better than one. By its very nature-requiring officials to thoroughly consider and respond to public comments-NEPA encourages the public to participate in creating the best possible decisions.
  • Public participation can streamline the decision-making process. The public is engaged early in the decision-making process through scoping hearings in an effort to elicit those issues which are of most concern to the public. NEPA then directs the agency to give primary consideration to these concerns. The law approaches efficiency in a very practical way-don't waste time on things that nobody thinks is a big deal and pay attention to the things people care about.
  • When a federal agency fails to engage the public appropriately in a NEPA process it runs the real risk of making a decision that is not the best it could make. It is likely to be less efficient in its decision-making process. What's more, the final decision is less likely to enjoy the support of the public and, in the case of controversial projects, may therefore not receive the funding support necessary from Congress for the project to proceed.

    Several things are necessary for meaningful public participation in the NEPA process; most of them are connected to information.

    1. The public should know a decision is being made.
    2. The public should be provided an opportunity to engage
    decision-makers.
    3. The public should have adequate information about the proposed action to participate in an informed way.
    4. The public should have access to independent technical assistance to evaluate the claims and findings of the agency.
    5. The public and the decision-makers should engage in a consultative process toward a decision supported by all parties.

    Respect for and trust of the judgement of the public underlies NEPA. In addition, NEPA gives the public a place at the table in recognition of a fundamental fact which has moral imperatives attached to it: Federal agency officials and decision-makers are often transient in the community in which a project is located; they rarely have to live, long-term, with the good or bad impacts of the project they oversee. The public, however, often has roots which run generations deep and will be impacted by the proposed action for the rest of their lives. In other words, local folks have to live with what happens in their community, and bureaucrats and other officials do not.

    This is not meant to suggest that officials have a cavalier or disrespectful approach to decisions; it is to note, though, that the public has a deeper and more profound incentive in the ultimate decision. Decades later, when the project has run its course, it is the local community which will reclaim responsibility for the environment.






    NEPA and the Oak Ridge Reservation

    How all these rules and regulations play out in local communities is the subject of this report-at least how they play out in one local community. Oak Ridge, Tennessee is the home of the Department of Energy's Oak Ridge Reservation, a 35,000 acre site which hosts three large industrial complexes-the K-25 gaseous diffusion facilities now in transition, on their way to becoming a "Technology Park;" national research facilities at the Oak Ridge National Lab; and manufacturing facilities at Y-12.

    Each of these complexes carries an enormous legacy of hazardous and radioactive contamination from 55 years of nearly unfettered government activity in pursuit of production of nuclear weapons and other endeavors. In December of 1989, the Oak Ridge Reservation was placed on the EPA's National Priority List, signifying the extent of contamination made it a priority for cleanup. Nevertheless, each site has remained "open," continuing current operations and developing new missions in addition to the work of "cleaning up" history's mess.

    In Oak Ridge, the application of NEPA has been uneven. How zealously DOE seeks to adhere to or avoid the requirements of the law vary from time to time and project to project. Whether such unevenness reflects the personality of DOE management, budget or personnel shortfalls, or a determination not to be slowed down by bothersome regulations, the effect on the public is deleterious.

    In the past few years, DOE in Oak Ridge has demonstrated repeatedly a failure to embrace the values of NEPA or to comply with the law. What's more, DOE has failed to comply with its own policies regarding NEPA.

    The results of DOE's NEPA failures always include disappointment on the part of a public which expects government officials to obey the law. But perhaps more seriously, the results of NEPA's failures can be measured in increased risk to workers-in one instance the sheer luck of timing alone prevented loss of life-and to the environment. The results can also be measured in dollars and sense; some decisions currently being made run against the grain of common sense and will ultimately cost DOE more money than would otherwise be the case if NEPA were being followed rigorously.

    The Oak Ridge Environmental Peace Alliance has been monitoring DOE activities on the Oak Ridge Reservation for ten years-since 1988. We have participated in NEPA activities nearly all that time, and during our tenure as "watchdogs" we have praised and criticized DOE. OREPA is not alone in its concerns about DOE's NEPA compliance in Oak Ridge. Other members of the public who are familiar with DOE activities and who regularly participate in DOE's decision-making processes have been quick to agree when criticisms are voiced.

    OREPA set out to provide this analysis of the current state of NEPA compliance in Oak Ridge because we have been increasingly dismayed by DOE's behavior and attitude toward NEPA. We place the lion's share of the blame at the doorstep of Oak Ridge Operations management, but we recognize that the responsibility for complying with NEPA and DOE policy falls on the shoulders of every DOE and contractor employee involved in NEPA-covered activities. What's more, holding the government accountable for its actions is, regrettably, increasingly the responsibility of public interest groups.

    The reader will quickly see that this analysis does not attempt to be comprehensive or exhaustive. We do not analyze all DOE NEPA activities-we could not if we wanted to, since the public is not regularly informed of all NEPA activities. We do not capture all the problems. Instead, we identify some fundamental problems with DOE's NEPA activities in Oak Ridge, and we explore particular Oak Ridge cases which illustrate these problems. It is our belief that fixing some of these fundamental problems could go a long way toward achieving public satisfaction with DOE's NEPA activities and also toward achieving the best possible decisions-the reason NEPA exists. We provide at the end of the analysis some conclusions and recommendations.

    Many of the concerns captured in this analysis are not new-OREPA's concerns about DOE's in situ vitrification activities, for instance, have been widely publicized. Taken together, however, these examples of DOE's NEPA failure demonstrate that NEPA compliance is not taken seriously by DOE's management in Oak Ridge. The idea of using NEPA to make the best decisions, decisions which place a high priority on environmental protection, appears foreign to most of DOE-Oak Ridge Operations. Even worse, we fear DOE will not take NEPA seriously until it is compelled to in court. Not only is such a course of action expensive and distasteful to the public, it is also unconscionable that DOE should require it.

    The price of NEPA failure is high. Public trust is eroded each time DOE fails to do what the public knows it is required to do. But even more importantly, the environment is left inadequately protected when DOE fails to apply NEPA appropriately. Ultimately, we will all pay a high price for failure to protect the environment-if not in this generation, then certainly in generations we hold even more dear.

    In the following sections, four case studies are analyzed as they pertain to the NEPA process. Four fundamental problems with DOE's NEPA activities are explored: public participation, improper use of segmentation, categorical exclusions, and the use of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to avoid NEPA.






    Case Study I.
    Public Participation: Successes and Failures

    Successes and failures can be measured in a number of ways, most of them subjective. The success of DOE's public participation efforts is not necessarily that everyone is happy with the outcome. At a minimum, though, any public participation program should meet the five simple criteria outlined above [see box, page 2]. In addition, it should comply with the regulations governing NEPA and the policies of the Secretary of Energy.

    One notable public participation success in recent years occurred during the Department's preparation of the Environmental Assessment for the Interim Storage of Highly Enriched Uranium Beyond the Historical Capacity at the Y-12 Plant, Oak Ridge, Tennessee. The HEU EA was the first NEPA document prepared for any activity at the Y-12 nuclear weapons plant that had a public participation component in it. It should be noted that DOE did not seek public participation or initiate the public's involvement in the process, but DOE was responsive when the public, learning of the proposed action, sought an opportunity to participate.

    The possible barriers to meaningful public participation were not few. Members of the public seeking the right to participate in the NEPA process had a history of opposition to all nuclear weapons production at Y-12. Much of the information being considered as part of the EA was classified. These two factors made for mutual mistrust at the outset, compounded by a general DOE attitude that, in matters pertaining to special nuclear materials, it had no obligation to meet any public accountability requests.

    Nevertheless, DOE embarked on a public participation process, providing a draft HEU EA for public comment.5 The first reviews from the public were not good. As a result, two things happened that helped move the process forward. First, the public's concerns were formulated as a series of questions. Second, enough attention was drawn to the issue that a broader slice of the public began to engage the HEU EA.

    DOE and the public then identified the outstanding information needs and held a meeting, with classification officers present, to discuss how the public's needs could best be met. DOE also sought to break out of old boxes. When DOE was unable to explain the storage configuration of highly enriched uranium in long-term vaults, it took the unprecedented step of inviting members of the public to tour the vaults to see for themselves.

    In addition, a series of workshops were scheduled to address questions. Members of the public and DOE and contractor employees with direct responsibility for the areas covered in each workshop participated.

    In the end, the HEU EA was redrafted to address many concerns raised by the public. Prior to finalizing the response to comments, DOE held a meeting to review its draft responses, checking with the public to make sure the comments had been fully understood and the responses were at least on point.

    The end result of the HEU EA was a Finding of No Significant Impact.6 OREPA did not agree with this finding, but was able to accept it in no small part because the process by which DOE arrived at the FONSI was respectful and thorough. DOE was able to assure OREPA and the state of Tennessee that outstanding concerns would be resolved through other processes.

    After one meeting, activists and workers were casually chatting and one worker acknowledged that he had not expected the encounter with activists to be positive, and he was pleasantly surprised. Engagement in a respectful manner had led to the possibility of a new foundation for interaction between DOE and the public.

    There are lessons to be learned by DOE and the public from the experience of the Y-12 HEU EA. One is that public participation, done right, takes time; the HEU EA took longer to prepare than DOE had planned, but it was a stronger document in the end. Members of the public also found themselves investing more time in studying to be informed than ever before, and the level of discussion and the quality of the consultative conversations reflected this.

    A second lesson is that public participation need not be an adversarial process; in fact, members of the public and members of the agency share a common goal-making the best possible decision. And even if they may not agree precisely on what would be the best possible decision, many of the steps to get there are the same for both the public and DOE.

    A third lesson relates to the intangible dynamic that occurs when people sit down to reason together-the process undertaken by DOE in preparing the HEU EA managed to overcome significant barriers and become a productive process because of the good faith efforts of all parties and the on-going engagement that eventually established a level of trust between the parties.

    The lessons learned from the HEU EA were, unfortunately, not lasting. In the course of the preparation for the EA, DOE released a list in April 1994 of other NEPA activities at the Oak Ridge Reservation, along with the expected dates of completion.7 On the list was a proposed "Environmental Assessment for the Replacement and Operation of the Anhydrous Hydrogen Fluoride Supply and Fluidized Chemical Processing Systems at Building 9212 at Y-12." The dates alongside the HF EA indicated the decision to prepare the EA had been made in 1992.

    Members of the public asked about the HF EA at the time and were told it was delayed. DOE promised to inform the public when the HF EA was prepared. In 1995, DOE prepared the HF EA. A draft was released in July of 1995. A final EA was published in September 1995, along with a Finding of No Significant Impact.8

    The final document provides evidence that public participation was severely limited. No member of the general public was informed of the proposed action or provided a copy of the draft document for review. No scoping meeting was held, nor was any hearing held on the draft document. Comments were received from two sources: the state of Tennessee's Department of Environment and Conservation's DOE Oversight Division; and L. Darryl Armstrong of the L. Darryl Armstrong Group, whose spouse was employed by Martin Marietta Energy Systems' Public Relations office. At the close of Mr. Armstrong's comments, he recommends DOE consult with its community and public relations staff. In addition, the state of Tennessee's State Historic Preservation Office is listed as an outside agency consulted by DOE.

    The failure to involve the public in the preparation of the HF EA not only has deprived the Department of Energy and its contractor, Scientific Applications International Corporation, of the benefit of comments and expertise from outside the "official" system, it was in direct violation of DOE policy. The public was not involved early in the NEPA process; it was not informed of the proposed action, and no effort was made to engage the public. This violates the policy established in 1994 by Secretary Hazel O'Leary.

    In Effective Public Participation Under the National Environmental Policy Act, under the heading Involving the Public Early, officials are told to "Involve the public early in the decision-making process - that is, before narrowing alternatives and making other key decisions. Inform state, local, and tribal governments, civic organizations, and communications media of the proposed action and the NEPA process to be conducted."9 The guidance from DOE headquarters goes on to instruct: "In addition to publishing notices of events or availability of documents in the Federal Register, use media that members of the public are likely to encounter, such as community and school newspapers, radio and television announcements. The goal is to notify the interested or affected public."10 Furthermore, DOE is to "establish a specific mailing list for those interested in a proposed action to facilitate providing information, draft and final documents and notices regarding the proposal. Develop the mailing list at the beginning of the NEPA process and maintain it throughout the life of the project."11

    DOE's guidance applies not only to Environmental Impact Statements, but also to Environmental Assessments. Under Requirements, DOE's guidance says: "DOE must involve the public to the extent practicable during the preparation of EAs (40 CFR 1501.4(b)."12 Under the Secretary's NEPA policy statement, DOE will "ordinarily provide early public notice of the intent to prepare an Environmental Assessment."13 The Secretary's NEPA Policy Statement includes as a key component:

    V. Enhanced Public Involvementƒ B. Whenever possible, the Department of Energy will provide enhanced opportunities for public involvement in the environmental assessment process, which will ordinarily include, at a minimum: 1. Early public notice of the DOE's intent to prepare an environmental assessment; and 2. Opportunity for interested parties, on request, to review environmental assessments prior to DOE approval.14

    In the case of the HF EA, DOE provided no notification of the public outside of the Federal Register, a medium not regularly encountered by the public. The goal of notifying the public was not achieved.

    What's more, despite the fact that at least one public interest group had specifically requested notification from DOE and had been assured that such notification would be forthcoming, no notice was given. No mailing list for interested parties was created or used.

    Public participation in the environmental assessment process was not only not enhanced, it degraded dramatically from the experience with the HEU EA; no hearings were held and no documents were made available for public review. It was only by chance, in searching for other documents in the DOE Public Reading Room, that a member of the public came across the completed HF EA, nearly two years after it completion.

    The irony which chafes the most is that DOE highly publicized the Secretary's Policy Statement in 1994, providing the media and the public with copies of the Statement and the Guidance which followed it. The Secretary, in this guidance, singled out the EA process as a process which deserved Enhanced Public Involvement (emphasis in Policy Statement). Prior to 1994, it was regularly DOE practice to prepare environmental assessments with no public participation; the Secretary's policy statement reversed this practice and committed the Department to do better.

    So at the very time that public interest groups were being assured by the Secretary of the intentions of the new policy, DOE-Oak Ridge Operations was busily preparing a secret HF EA, ignoring every single prescription of the new policy.

    The public in Oak Ridge is now utterly at the mercy of DOE. The public cannot participate as the NEPA law and DOE's own policy provide for when DOE does not even notify the public of proposed actions.


    The Report Continued...

    References

    Listing of Abbreviations



    Return to the FGS Homepage