DOE's decision-making process about the treatment of Oak Ridge's low-level mixed waste is another example of DOE's attempt to skirt the requirements of NEPA. In this instance, DOE has improperly broken one decision into many small parts. The result of this improper "segmentation" is a lack of meaningful public participation in the decision-making process as required under NEPA.
The Council on Environmental Quality regulations warn that improper segmentation of actions must be avoided such that the significance of the environmental impacts of an action as a whole will not be lost if the action is broken into component parts and the impact of those parts are analyzed separately. That is, an agency should analyze "connected", "cumulative" or "similar" actions in one Environmental Impact Statement.15 Although CEQ's regulations do not specifically direct agencies to consider connected, cumulative and similar actions in defining the scope of an Environmental Assessment, the impacts from such actions should be considered together in a single Environmental Assessment.16
Actions are connected if they
1) automatically trigger other actions which may require environmental impact statements;
2) cannot or will not proceed unless other actions are taken previously or simultaneously; or
3) are interdependent parts of a larger action and depend on the larger action for their justification.
Cumulative actions are those which, when viewed with other proposed actions, have cumulatively significant impacts.
Similar actions are those that have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography.17
In February 1996, the Department of Energy released the "Draft Final Programmatic Environmental Assessment, Proposed Privatization of Treatment and Disposal of the Department of Energy's Oak Ridge Reservation Low-Level Mixed Waste" (Programmatic EA). The purpose of the document was to analyze the enviromental impacts of treating Oak Ridge's 28.6 million kilograms of low- level mixed waste. A Programmatic EA was done in spite of the fact that treatment of 28.6 million kilograms of mixed waste is a major federal action with the potential for significant environmental impacts which should be rigorously examined in an Environmental Impact Statement.18
In October 1996, the Department of Energy withdrew the Programmatic EA primarily in response to comments from the public that it was based on hypothetical facilities sized to treat more waste than the currently identified Oak Ridge inventory. Instead, the Department of Energy planned to conduct waste stream-specific EAs as potential treatment and disposal options were identified for specific waste streams.19 The Oak Ridge Environmental Peace Alliance and Save Our Cumberland Mountains were quick to express their fears that the Department of Energy was segmenting its mixed waste decision into smaller pieces and the decisions would receive only the minimal scrutiny necessary to prepare a categorical exclusion.20
At a public meeting held on June 3, 1997 our fears were confirmed. At this meeting, the Department of Energy released its plans for disposition of the 28.6 million kilograms of low-level mixed waste originally included in the Programmatic EA. This total inventory had been segmented into five classes of actions: treatment to be determined under CERCLA (9.7 million kg); disposal off site without treatment (12.2 million kg); on site treatment (2.6 million kg); treatment and disposal as hazardous waste based on a non-radioactive determination (400,000 kg); and treatment of "broad spectrum" wastes off site by the private sector (1.25 million kilograms). An additional amount has not been fully characterized and will eventually be designated to one or more of these five classes. For most of these waste streams, it is assumed that the action is either covered by existing NEPA documentation, or NEPA will be incorporated in the CERCLA process, or NEPA review is not required. For treatment of the broad spectrum wastes, NEPA review is to be part of the procurement process.21
This segmentation of low-level mixed wastes is clearly inappropriate under CEQ regulations. The different types of treatments of these wastes are certainly connected. For instance, as the type of treatment is determined for wastes via the CERCLA process (up to 9.7 million kg), the determination will impact volumes designated for the other four classes of actions (direct off-site disposal, on-site treatment, non-radioactive determination, or off-site private sector treatment).
These five classes of treatment options together will have cumulatively significant impacts. The fact that all five actions will be occurring simultaneously and all originate from the Oak Ridge Reservation indicates these are similar actions under the CEQ regulations.
The "broad spectrum" wastes are to be treated off-site by the private sector. These wastes have subsequently been subdivided into five waste categories with "committed" Oak Ridge quantities totaling 1,250,000 kilograms. (DOE has indicated that this waste category is "expected" to eventually include 6,000,000 kilograms of waste. For purposes of soliciting proposals to treat the waste, DOE has set an upper cap at 36,500,000 kilograms.) 22 Treatment of these categories of wastes has been put out to bid. Included in the Request for Proposal was a requirement for environmental and other information that will be used to screen for NEPA issues.23
Within 30 days of receiving proposals, DOE will prepare "environmental critiques" from this information. Contracts will then be awarded based in part on the environmental critiques.
After the contracts are awarded, DOE will then determine the level of NEPA review required for each waste stream. This could consist of up to five EAs or, more likely, five categorical exclusions. What is clear is that DOE intends to make a decision on the treatment of millions of tons of hazardous and radioactive wastes without conducting an Environmental Impact Statement.24
In the end, treatment of the 28.6 million kilograms of Oak Ridge's low level mixed waste inventory has been segmented into five classes of actions. One of these classes-the off-site treatment of broad spectrum wastes by the private sector-has been further segmented into five waste categories each of which will receive separate NEPA reviews and are likely to result in categorical exclusions.
Case Study III.
Abuse of the Categorical Exclusion
NEPA provides a mechanism, called a categorical exclusion (CX), for federal agencies to use when preparing an Environmental Assessment or Environmental Impact Statement is clearly not warranted. The general principle is as the name suggests: The agency says, "This action is in a category which we know-by experience with similar actions, or because it is a benign activity, or because it is a small project designed to try out a technology-will not be likely to have a significant impact on the environment."
The Department of Energy published in the Federal Register a list of those actions which would normally be candidates for categorical exclusion.25 The list includes some routine activities, such as relocation of power lines from one side of a road to the other during construction. The list also includes broad categories to cover development of technologies and other research activities. This list consistently identifies CX activities which are qualified by words such as "small, bench-scale, pilot."
The purpose of the CX is not to provide an escape for DOE to avoid the burden of preparing a NEPA document when one might be necessary; it is to free DOE from extensive environmental documentation when such documentation is clearly unnecessary.
Unfortunately, DOE has sought to use the CX for some projects which clearly do have the potential for significant environmental impact. This broad interpretation not only undermines the purpose of NEPA, it breeds public mistrust and undercuts DOE's attempt to build public confidence in its activities.
Our example is DOE's "experiment" with in situ vitrification, a technology DOE hoped to use in Oak Ridge to contain and stabilize buried waste in place by heating it with enormous amounts of electricity until the soil turned to glass. The idea is that trapping waste in glass better isolates it from the environment and reduces the spread of contamination which might come into contact with groundwater or rain.
In 1990, DOE first began to explore the feasibility of using in situ vitrification in Oak Ridge. A memorandum-to-file was drawn up describing the proposed activity. The project would create an artificial waste trench, twenty-four square feet in area and eight feet deep. Sealed, watertight containers containing 10 millicuries of radioactivity were placed into the trench. The memorandum-to-file describes the project as "a tracer-level, pilot-scale demonstration project" which "will not affect environmentally sensitive areas." Based on this analysis, DOE determined the proposed action would clearly not have any significant environmental impact.26
DOE proceeded with its demonstration project. The project encountered several unexpected hurdles and was considered less than successful. Problems noted were the large amount of steam generated by the heating process and the possibility that contaminants might flee the heat and escape the vitrification intended for them.
DOE continued to pursue in situ vitrification as a waste treatment technology. In December 1992, the project manager, Brian Spalding, provided information for a Project Review Summary, prepared by P.A. Souza, which apparently follows a standard format. Item 9, CX/EA/PN REQUIREMENT/APPLICABILITY asserts that "The treatability study...is an on-going research activity similar in scope to past treatability studies conducted at ORNL" and cites the 1990 finding in the memorandum-to-file. Item 10 affirms that "No further NEPA documentation will be required..."27
In fact, however, the project had changed dramatically. Instead of a tracer-level, pilot-scale test in an artificial waste trench using millicurie sealed sources of radioactivity, the 1993 project would use an abandoned waste pit containing thousands of times more radioactivity (estimated at 39,000 millicuries) mixed with hazardous wastes of an uncertain description. The size of the project had increased from 192 cubic feet to 34,040 cubic feet-more than 170 times bigger! In other words the project was no longer trying to create a block of glass the size of two port-a-johns; it was now creating a block of glass the size of a basketball court, twenty-five feet tall.
Environmental risks multiplied as well. The contamination in the 1993 project was not fully characterized, and the cursory studies that were conducted showed the waste distributed throughout the soil, the soil not watertight, and a water table contaminated with cesium, strontium and tritium at 7-10 feet. The project went from a pilot-scale effort to a huge, uncontrolled, outdoor experiment. In addition, the new project was touted by DOE as "permanent waste disposal;"28 a successful treatability study would result in the first officially sanctioned permanent waste site in Oak Ridge. Yet DOE continued to assert the 1990 exclusion from NEPA was applicable.
In 1993, a treatability study work plan was prepared. EPA made comments and signed off on January 7, 1994.29
When OREPA learned of these plans, OREPA objected, and DOE's contractor dutifully provided the 1990 and 1993 documentation. OREPA noted that the 1990 decision, clearly a small decision, required an official determination from the highest levels of DOE in Washington, DC. By contrast, the decision to extend the 1990 decision to cover the 1993 action was made in Oak Ridge.
The project went forward. The results, a dismal failure which fortunately just fell short of catastrophe, are well documented. In April 1996, the soil melting began.
Soil was melted to a depth of 21 feet, just three feet short of completion, when the ground exploded in an eruption of molten glass, flame, and gas. The 15,000 pound hood which had been constructed to capture off gases was lifted eighteen inches off the ground (where it was restrained by the superstructure). It was mere chance that workers were not injured or killed as the project regularly required workers to walk on the exhaust hood to take readings and check equipment.
To this day, DOE does not know conclusively why the explosion occurred; the official investigation states this explicitly.30
The experience with in situ vitrification is instructive. From it we learn several lessons. One is that DOE cannot be trusted to apply NEPA diligently in the spirit in which the law intends; the push to show results for the federal dollars which have been committed to environmental restoration led DOE to "fast track" a technology which was unproven in Oak Ridge and to extend a legitimate categorical exclusion to provide inappropriate NEPA coverage. Two is that the Department was unable to hear the legitimate and, in this case at least, prophetic voice of the public which insisted on a thorough environmental analysis before the project could proceed.
OREPA believes that the preparation of an Environmental Impact Statement in 1993 would likely have addressed the issues which led to the explosion in 1996; we had already raised them with DOE but were unable to do anything when DOE did not voluntarily address them. Under the compulsion of an Environmental Impact Statement, DOE may have looked more carefully at its plan and either determined the project was not feasible (thus saving millions of dollars), or have considered modifications to the plan to address the potential for a steam/pressure event (which would have increased the cost of the technology so dramatically that it would have indicated the true cost of trying to do in situ vitrification in a wet environment was prohibitive). In either case, the explosion, release of contamination, extreme risk to workers, and waste of tax dollars could have been avoided.
None of this was destined to happen, however, because DOE relieved itself of appropriate NEPA compliance by claiming an inappropriate categorical exclusion.
In the aftermath of the explosion, DOE continued to make noises about further development of in situ vitrification in Oak Ridge.31 OREPA objected again in a letter dated September 11, 1996, citing the need to conduct a full Environmental Impact Statement before any further pursuit of in situ vitrification should be undertaken.32
Curiously, DOE's response to OREPA's objections shifted. The prior claim that in situ vitrification was covered by an old categorical exclusion vanished as DOE made use of its newest weapon in the war to avoid the requirements of NEPA. Rod Nelson, Assistant Manager for Environmental Restoration, replied that "DOE will rely on the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) process and incorporate NEPA values as practicable."33 This language appears in the Secretarial Policy on NEPA published in June of 1994.
The claim that CERCLA trumps NEPA is being used regularly by DOE to avoid compliance with the requirements of NEPA. The phrase "incorporate NEPA values as practicable," is used at DOE's convenience to shield it from the rigorous environmental analysis required by NEPA and, therefore, to subvert the intent of the 1970 law.
Case Study IV.
Use of CERCLA to avoid NEPA
At the April 3, 1996 meeting of the Oak Ridge Reservation Environmental Management Site Specific Advisory Board (SSAB), the Department of Energy unveiled its progress in the evaluation of an on-site facility for permanent disposal of low level and mixed waste for the Oak Ridge Reservation. Waste types projected to be disposed in the facility included 2 million cubic feet of stored wastes (low level and mixed wastes) and 20 million cubic feet of wastes (mixed, low level, and hazardous) projected to be generated during future environmental restoration activities. Wastes generated under both CERCLA and the Resource Conservation and Recovery Act (RCRA) were encompassed in the projection.
The evaluation, already well underway, was being conducted under the CERCLA process. The consideration of the potential applicability of NEPA to a permanent, on-site waste disposal facility was not evident during the presentation. Instead, a Remedial Investigation and Feasibility Study (RI/FS) was to be performed followed by a Proposed Plan and Record of Decision. The RI/FS has been completed and a Proposed Plan was submitted to the regulators on December 4, 1997. Although a scoping document had been prepared on waste disposal alternatives in October 1995, there were no scoping hearings, and indeed no public input whatsoever, into the document.34
Existing laws, regulations, and DOE orders indicate that construction of a disposal facility for wastes generated on-site requires NEPA application. The Department's own implementing procedures for NEPA list classes of actions that require NEPA coverage. The list for actions requiring Environmental Assessments includes:
"Siting, construction...operation, and decommissioning of...large storage facilities (greater than 50,000 square feet in area) for waste, except high-level radioactive waste, generated onsite or resulting from activities connected to site operations..."35
The onsite disposal cell, currently projected to cover between 22 and 58 acres, fits this category.36
DOE's Order 5820.2a also directs the use of the NEPA process for making decisions regarding the disposal of low level waste. In this Order, the NEPA process is required during disposal site selection, in regard to the disposal facility and disposal site design, and during planning for disposal site closure and post-closure.37
Further, the Department's Secretarial Policy on NEPA requires reviews for siting, construction, and operation of treatment, storage, and disposal facilities that, in addition to supporting CERCLA actions, also serve waste management or other purposes. The Policy further states that "Notwithstanding the above, the Department of Energy may choose, after consultation with stakeholders and as a matter of policy, to integrate the NEPA and CERCLA processes for specific proposed actions."38 In this instance, DOE-Oak Ridge had no initial plans to integrate NEPA and the public was not consulted.
Had the public been consulted during a scoping hearing early in the process, the Department would have quickly realized that many stakeholders feel that NEPA requirements apply to an on-site waste disposal facility. Since the Department has unveiled its plans, stakeholders have roundly called for the use of NEPA for the facility:
* In a letter dated January 10, 1997, the Oak Ridge Enviromental Peace Alliance and Save Our Cumberland Mountains expressed concern that the onsite disposal cell was being treated as a CERCLA action and that the public participation requirements of NEPA had not been followed.39
* During a public meeting held on February 13, 1997, stakeholders with diverse interests questioned whether NEPA requirements had been adequately fulfilled. A workshop was requested to discuss the NEPA issues. This workshop has not been held.
* In a letter dated March 25, 1997, the city of Oak Ridge's Environmental Quality Advisory Board (EQAB) also urged that NEPA requirements be followed to make the decision about an on-site disposal facility. They urged the potential environmental impacts associated with the decision to site such a facility in Oak Ridge "...be evaluated within the conventional framework of the National Environmental Policy Act, and not under some type of hybridized version of the CERCLA procedure".40
* The SSAB expressed concerns in a letter dated May 14, 1997 that many in the community feel that the potential environmental impacts associated with the decision to site a waste disposal facility on the Oak Ridge Reservation should be evaluated within the framework of NEPA, not in a hybridized RI/FS document developed under CERCLA procedures. A workshop to address NEPA and its associated issues was requested.41
Rather than responding to stakeholder's concerns about the use of CERCLA for a project that clearly requires NEPA coverage, the Department resorted to eliminating all wastes projected to go to the disposal cell except for CERCLA remedial action-derived wastes. Initially, the on-site disposal cell was planned for "...the consolidated disposal of most stored and future generated waste from DOE decontamination and decommissioning (D&D) and environmental restoration and waste management operations..."42 However, in the RI/FS, only disposal alternatives for future-generated CERCLA wastes were evaluated.43 This was clearly an effort to circumvent the Secretary of Energy Policy on NEPA that requires NEPA reviews for siting, construction, and operation of treatment, storage, and disposal facilities that, in addition to supporting CERCLA actions, also serve waste management or other purposes.44
Stakeholders have challenged the Department's decision to exclude all wastes from an on-site disposal facility except for CERCLA wastes. EQAB has stated that it does not believe that "...the uses of such a new facility should be limited only to the disposal of locally-generated CERCLA remedial action-derived wastes."45 In addition, the Tennessee Department of Environment and Conservation has questioned how the on-site disposal facility will address the active side of waste operations and the need for one waste management area for Environmental Management operations.46
The Department of Energy has gone to great lengths to avoid the NEPA requirements for a permanent, on-site waste disposal facility. Instead of acknowledging that the public should have been engaged early in the process, or responding responsibly to the public's concerns about the use of CERCLA instead of NEPA, the Department has chosen to alter its scope of work in an attempt to circumvent NEPA requirements. The result has been increased distrust of the Department by many of its stakeholders.
Conclusions and Recommendations
It is not enough to say that the Department of Energy's commitment to complying with the law of the land and DOE's own policy in Oak Ridge is in question. The fact is that DOE consistently fails to comply with NEPA. Public participation is often considered a nuisance to be avoided at all costs. The disregard of the public's right to participate is not even masked. At one meeting of the Site Specific Advisory Board, the current manager of Oak Ridge Operations, Jim Hall, during comments about oversight and accountability during the "reindustriali-zation" of the K-25 Site, wistfully recalled the good old days when "we would have just classified this and been done with it."
In the past few years, public questions about DOE's NEPA process in Oak Ridge have generally been met with defensive rejoinders from DOE. It is clear that DOE's attitude toward NEPA is not that it is a valuable tool leading to the best possible decisions, but that it is a necessary evil. DOE's former Oak Ridge Operations NEPA officer, Patricia Phillips, regularly presented DOE as doing the minimum amount of NEPA defensible under the law. When OREPA wrote to the Assistant Manager for Environmental Management in Oak Ridge, Rod Nelson, in May of 1997 to request that DOE encourage the NEPA officer to be a champion of rigorous application of NEPA rather than a defender of least-possible compliance activity, DOE affirmed its practice.
Absent an expensive legal challenge, beyond the resources of most grassroots public interest groups, DOE continues to operate with impunity, disregarding the requirements of the law and its own policy; DOE's local officers have arrogated to themselves the authority to choose how and when they will apply DOE's policy. Not surprisingly, their choices unerringly favor DOE at the expense of the public.
It is the conclusion of OREPA, shared by many, that whatever commitment to NEPA compliance may exist at DOE headquarters in Washington, DC, it is not shared by DOE's Oak Ridge Operations management. DOE-Oak Ridge does not use NEPA to inform decisions, nor does it use NEPA as an effective tool for engaging the public in consultations aimed at providing the environmental protection the law envisions.
DOE's NEPA failures are neither benign nor inconsequential. They are dangerous in both the short-term-increasing risks to workers-and the long-term-increasing risks to the environment and future generations. In addition, DOE's current practice of NEPA avoidance is inefficient and wasteful, undermining DOE's credibility on all fronts.
DOE's malfeasance compounds the injuries which the environment has suffered over the last fifty-seven years in Oak Ridge. Current activities on the Reservation continue to assault the environment without benefit of the environmental reviews envisioned by NEPA. None of DOE's massive industrial sites has prepared a site-wide Environmental Impact Statement, though in 1994 the Assistant Secretary of Energy for Defense Programs acknowledged the need for a site-wide EIS for Y-12.
Perhaps worst of all, DOE's NEPA failure is not necessary. DOE has the capacity to comply fully with NEPA, to champion environmental protection, and to provide leadership to business and industry by conducting its own business with a zeal for the law. In the long run, full compliance will lead to better decisions, a safer workplace, a cleaner environment, a savings of money and a spirit of mutual trust and confidence between the government and the people it exists to serve.
The cases cited in this report do not exhaust DOE's NEPA problems; they are indicative of the breadth of the problems, however, and should compel a response from DOE. Likewise, the recommendations are not the only positive things DOE could or should do in response to the concerns noted here. They are a thoughtful starting place. DOE should embrace them and think creatively with all sectors of the public to develop additional positive responses.
1. DOE should recognize and acknowledge its NEPA problem.
2. DOE should establish a NEPA information bulletin board (on the Internet, e-mail notification, and public information centers such as the IRC) containing the following information:
A. Title of any proposed activity which may require a NEPA decision (CX, EA, or EIS).
B. Schedule of action on any proposed NEPA activity (scoping meeting, information sessions, public meetings, draft documents, RODs); schedule should be kept current with immediate updates
C. Bibliographic information for each NEPA document in preparation, and citations of all known relevant documents including information on the location of the documents.
3. DOE management should make a public commitment to full, rigorous compliance with NEPA, including full public participation.
4. DOE management should appoint a "NEPA champion;" a DOE official trained in NEPA compliance to argue for application of NEPA to the fullest extent practicable (rather than the minimum). The "NEPA champion" should be responsible to monitor all DOE NEPA activities on the Reservation. The "NEPA champion" should file quarterly reports to the public on his or her activities.
5. DOE should hold quarterly NEPA meetings with interested stakeholders to entertain questions, review the NEPA schedule, and outline key public participation opportunities.
6. DOE should announce and hold a one day "stand down" for all employees (DOE and contractor) with responsibility for projects covered by NEPA. The "stand down" day should be used to educate employees about the requirements of NEPA and DOE's NEPA policy, to emphasize the value of public participation, and to underscore the commitment of Oak Ridge management to full and rigorous compliance with NEPA. Members of the public should be invited to participate in presentations to employees during the "stand down."
7. DOE should encourage the SSAB to seek, and should provide, funding for independent technical assistance in analyzing documents for proposed projects covered by NEPA.
8. DOE should establish a program in cooperation with the University of Tennessee School of Law to provide two internships per year for second year students. Each internship would cover one full calendar year and would include a course in NEPA law taught by Law School faculty, a seminar by DOE Oak Ridge on NEPA compliance activities in Oak Ridge, and at least 75 hours of interaction during the school year and 40 hours/week for eight weeks during the summer with local public interest groups addressing specific questions regarding NEPA.
Listing of Abbreviations