Long-Term Stewardship and Institutional Controls at the Nevada Test Site
A Presentation to the NTS Citizen Advisory Board
By: Ginger Swartz
While preparing this paper, I came to realize that the term stewardship has become a political buzzword that has been defined in numerous way, is often loosely defined and sometimes not defined at all within the context of stewardship projects. For example, in June 1998, the Keystone Dialogue on Nellis Air Force Range Stewardship released a 100+ page final report that did not once define what it meant by stewardship. The Brookhaven National Laboratory promises to integrate environmental stewardship into all facets of the Laboratory's missions, and says it will manage all programs in a manner that protects the ecosystem and public health. Parks Canada includes the ideas of active protection of the environment, responsible management, economical management, pollution prevention, environmental assessment and resource stewardship in their explanation of stewardship.
The idea of stewardship is a 15th century concept related to the conducting, supervising, or managing of something; especially: the careful and responsible management of something entrusted to one's care, such as stewardship of our natural resources. (Merriam-Webster WWWebster Dictionary, 1999.) In the case of the Nevada Test Site, we are then vowing to carefully and responsibly manage the after-effects, or legacy, of contaminated soils and groundwater resulting from years of nuclear testing, research and development and radioactive waste disposal programs. In the summer of 1998, the Nevada Division of Environmental Protection, Bureau of Federal Facilities, prepared a paper that effectively identifies and defines this contamination and talks about the regulatory process related to remediation of contaminated sites.
The remediation of contaminated sites is an extremely important part of what we might call the stewardship approach at the NTS. As noted by Paul Liebendorfer and John Walker, in the paper just referenced, The regulatory process established for DOE's Environmental Management (EM) Program at the NTS is detailed in the State/DOE Federal Facility Agreement and Consent Order (FFACO). In that agreement, DOE asserts its' authority for conducting EM program activities under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Atomic Energy Act, and Executive Order 12580, Superfund Implementation."
To quote from the Liebendorfer/Walker paper, ..both DOE and the State acknowledge that the FFACO is subject to other authorities including the Solid Waste disposal Act, the Nevada Revised Statues, including the Nevada Water Pollution Control Law, the Nevada Hazardous Waste Law, the Nevada Administrative Code, the Nevada Administrative Procedure Acts; and all other applicable provisions of state and federal law. The paper goes on to say that, …as part of the FFACO, the State of Nevada has stipulated that it retains all of its hazardous waste and clean water authorities and legal rights delegated by the U.S. Environmental Protection Agency and under its own laws and regulations, as well. As for DOE, the FFACO stipulates that the agency does not waive any claim of jurisdiction over matters that may be reserved to it by law, including the Atomic Energy Act.
What we're really talking about here (and I think this is aptly demonstrated within the parameters of the regulatory framework I just noted) is Institutional Controls at contaminated sites. The State of Nevada has agreed to a regulatory approach for NTS that is defined under the FFACO, as a Corrective Action Strategy for correction, (not necessarily cleanup) of problems at contaminated sites on the NTS. This control, or agreement process includes:
These activities represent the beginning of long-term protection through institutional controls.
In an informal study conducted in 1997, the U.S. Environmental Protection Agency (EPA), found that, between 1980 and 1993, 44% of the Records of Decision (RODs) signed by the Agency, included some form of institutional controls. By 1997, that number was up to 60%. In 1995, EPA issued a draft guidance related to CERCLA remedy selections processes which stated that institutional controls will play a key role in ensuring long-term protectiveness.
So, perhaps what we need at the NTS, is a more comprehensive definition of stewardship which includes a specific long-term plan for implementing realistic and fully enforceable institutional controls at contaminated sites. This kind of approach is particularly important at NTS because we are planning closures in place, rather than cleanup. We are facing significant contamination that has not been adequately characterized and poses a long term hazard to the environment and public health. There has been no coordinated approach to a baseline radiologic health assessment for communities and counties affected by NTS contamination. In addition to the issues of contamination at the NTS, we are looking at the political possibility of high-level waste storage at Yucca Mountain. If that site is constructed, southern Nevada and Nye County will be host to the largest concentration of radiation in this hemisphere. Unfortunately, there are currently no planning efforts in place to coordinate long term stewardship or control activities between Yucca Mountain and DOE's Environmental Management (EM) programs.
So what will Nevada's stewardship plan include? Who will be required to take on the task of writing a comprehensive plan? Could we, for instance, request a new withdrawal for the NTS and insist that stewardship and institutional control approaches be included in the withdrawal language? Can we cause a more restricted land use policy for NTS to be included in federal legislation? In the year 2006, DOE's EM program at NTS will, theoretically, go out of business, and be taken over by Defense Programs (DP). (Incidentally, the CAB is scheduled to go out of business, at the same time.) What will happen then to public involvement in NTS' FFACO activities? Will there be opportunities for
public involvement in the long-term stewardship of the NTS? Will DOE's Defense Programs demonstrate any level of interest in stewardship planning or public involvement?
In any discussion of institutional controls, state and local governments are named as the entities most likely to be involved in implementation and enforcement. Some people see local government as the logical enforcer because land use authority falls to the local planning boards or town councils. However, state governments sometimes have the power of statutes that authorize use of additional land restrictions in such situations. Also, state agencies are usually in charge of wellhead and water use permitting programs and other environmental permitting and regulations, so they have enforcement power on their side. In addition, states have the potential to increase their institutional control efforts by introducing new programs or legislation, thereby potentially expanding their ability to enforce stewardship controls over a longer time period.
The State of Nevada, through the Nevada Department of Environmental Protection, will likely agree to administer any relevant process related to finding a way to define, record, and implement stewardship decisions. But, will existing federal bureaucracies be capable of coordinating now stove piped activities and operations to adequately protect the public health and safety in the future? Will these same agencies be able to move beyond the Let's Do Business mentality and focus on ensuring, to the best of their technical ability, that no future intrusion or damage to the environment and public health will occur? There are, at this time, no assurances or mechanisms in place for DOE or other federal agencies to do this in Nevada. None have been established, and none are planned.
Long-term stewardship or institutional control planning is an absolute necessity at contaminated sites. To be credible, a stewardship program that relies on federal agency commitments and actions, must be based on a firm foundation of trust - trust that the federal agency is acting in good faith; trust that the federal agency will live up to its promises; trust that the federal government will make good on those commitments in spite of shifting political and economic sands; and, most importantly, trust that the federal agency has the best interests of the state and local communities at heart, or at least understands those interests.
Stewardship is more a case of honor and trust. Institutional control can include the aspect of regulatory and legal enforcement. It is our job, as citizens of the State of Nevada, to assist in choosing the long-term path that will most effectively protect the environment and public health of our state, whether it be a path of trust or a path of legally mandated institutional controls.