And now:Ish <[EMAIL PROTECTED]> writes:
From: [EMAIL PROTECTED]
Court Finds that Energy Department Plan to Recycle Radioactive Metals From
Nuclear Weapons Factories Poses Great Potential for Environmental Harm
Loophole in Superfund Cleanup Law Blocks Citizens from Compelling Energy
Dept. to Analyse Risks through an Environmental Impact Statement
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.
SOURCE Paper, Allied-Industrial, Chemical and Energy Workers Union (PACE)
CO: Paper, Allied-Industrial, Chemical and Energy Workers Union;
United States Department of Energy
ST: District of Columbia
IN: ENV
SU: LAW
06/30/99 21:20 EDT http://www.prnewswire.com
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Reprinted under the fair use http://www4.law.cornell.edu/uscode/17/107.html
doctrine of international copyright law.
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