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Principal Findings and Policy Recommendations

• At sites throughout the country the Department of Energy (DOE) is cleaning up the radioactive and chemical contamination legacy of nuclear weapons production. DOE expects to rely on local governments to implement essential elements of its plans for protecting the public from hazards that will remain after it completes cleanup activities at its facilities. DOE uses the term long-term stewardship to encompass the activities and mechanisms that will be used to protect the public from the remaining hazards at such sites. Local governments have the legal authority, responsibility, and experience in the types of functions that will need to be provided at these sites, such as land-use planning and control, protecting public health and safety, maintaining official records of land ownership, and providing information on health and safety to their citizens. This apparent congruence of need and capability is, for the most part, however, merely superficial. In this report the Environmental Law Institute (ELI) and the Energy Communities Alliance (ECA) examine how local governments are only beginning to develop the capacity to apply their experience to the highly specialized types of environmental hazards that DOE will leave behind.

• Local governments are interested in long-term stewardship because the sites are located in and affect their communities, and they have a fundamental duty to provide for the health, safety, environment, quality of life, and economic future of their citizens. At more than 100 DOE sites a significant amount of environmental contamination will remain in place when the “cleanup” is complete. Some of the sites will be cleaned up to a level based on the risk to humans assuming the site is used in specific ways that limit human exposure to the hazards left in place. Other sites may become storage sites for environmental contamination, either because of the complexity of the contamination or the need to store materials whose toxicity cannot be reduced. The goal of long-term stewardship is to ensure that these sites will not pose a threat to human health and the environment in the future.

• Long-term stewardship depends on appropriate and effective legal mechanisms, physical controls, and other devices needed to protect people and the environment at sites where DOE has completed or plans to complete cleanup. In general terms, the tools of long-term stewardship include land-use controls, monitoring, maintenance, and information management. Because local governments are the primary implementers of land-use controls and information management with respect to land use and real property ownership, the long-term effectiveness of the remedies DOE is using at many sites will depend on local governments participating in and fulfilling a number of functions. Despite the acknowledged need to rely on local governments and their interest in working with DOE on cleanup and long-term stewardship, local governments have not been directly involved in the decisions that determine the roles and responsibilities they will be expected to fulfill.

• This report presents the results of in-depth studies of the existing and planned roles and capabilities of local governments with respect to long-term stewardship at three DOE facilities. Two of the facilities, Los Alamos National Laboratory in New Mexico and Oak Ridge Reservation in Tennessee, will have continuing DOE operations for the foreseeable future. The report examines the effects these continuing missions may have on the role of local governments in long-term stewardship. The third, Rocky Flats Environmental Technology Site, is slated to be cleaned up and closed by 2006, and the report examines the differences in the roles of local governments in long-term stewardship at a closing site. These case studies, with their individual findings, are discussed in Chapter IV.

• The case studies and two national workshops convened by ELI and ECA to consider appropriate long-term stewardship roles for local governments at DOE sites generated a number of widely applicable findings and recommendations. The findings for the project as a whole are presented in Chapter II while the recommendations are set out in Chapter III. Some of the significant recommendations, and the findings associated with them, are highlighted below.

• DOE should work directly with local governments on long-term stewardship issues that affect them. Long-term stewardship is essential to DOE’s current plans for cleaning up the nuclear weapons complex. Many of the mechanisms for implementing long-term stewardship, including zoning, property records, deed notification, building permits, and information management, depend on local governments. Despite this dependence on local governments, DOE has not worked directly with local governments at the case study sites in developing long-term stewardship plans.

• Local governments must be included in the decision-making process whenever they will be expected to carry out a role or responsibility in long-term stewardship. Long-term stewardship and the roles expected of local governments will vary depending on whether the site will remain in federal ownership or be transferred to a non-federal owner and on the type, level, and location of residual contamination, which often will be affected by the future use that DOE and the state and federal environmental regulators plan for the site. Despite the crucial role that future use of the site has in determining cleanup levels and long-term stewardship, the government with jurisdiction over that future use, the local government where the property is located, is not a party to those decisions.

• DOE should continue to develop its national policy on long-term stewardship and should develop specific guidance for DOE field offices on how to implement this policy. DOE does not have effective national policies on long-term stewardship that are implemented in the field. DOE field offices need specific guidance on how to implement long-term stewardship in order to assure that national policies are carried out effectively and consistently at all sites.

• DOE, EPA, and the state regulators should integrate long-term stewardship into the cleanup decision-making process at all DOE sites, including investigating and analyzing the mechanisms for implementing long-term stewardship at the same time and to the same degree as engineering solutions to risk management. At the case study sites, DOE has no trained staff responsible for ensuring that long-term stewardship and its implications are considered in the decision-making process. At most sites, little is known about the activities that will be involved in long-term stewardship, or about their costs.

• DOE, EPA, and the state regulators should improve their knowledge and understanding of the local laws and other tools that will be used for long-term stewardship. Many of the mechanisms that DOE expects to rely on for long-term stewardship are based on local laws, practices, and institutions. In addition to land use planning and zoning, these include property records offices, building codes, local real estate practices, and local health departments. It is axiomatic that these local functions vary substantially from state to state, and even within a state. DOE, EPA, and state regulators are making decisions about long-term stewardship without adequate knowledge and understanding of the local laws, practices, and institutions that will be crucial to effective long-term stewardship.

• Before deciding to remediate a site to a level that would not allow unrestricted use, DOE should analyze the opportunity cost to the community of the restricted use compared to an unrestricted use. Local governments at the case study sites prefer that DOE facilities be remediated to a level that allows unrestricted use and avoids long-term stewardship. Restrictions on the use of land may have long-term detrimental effects on the economic development potential of the specific parcel and for the community, generally.

• DOE Operations or field offices should determine the specific information needs of their affected local governments and meet those needs with information in the form of maps, databases, or other formats most useful to the local government. The case studies revealed a common need of the local governments affected by DOE facilities for reliable information about the extent and nature of residual contamination in forms that they can use for various purposes. Local governments need such information in order to fulfill their duty to inform their citizens about health and safety risks in their community. They also have specific needs for detailed and accurate information about residual contamination in order to effectively carry out their mission of protecting public health and safety though controlling land use.

• DOE should provide funding to local governments to pay for activities associated with long-term stewardship at DOE sites. Local governments often lack the staff or financial resources to accept additional responsibilities, but they are interested in undertaking some long-term stewardship activities if funding exists to pay for their costs. Local governments are, for example, willing to manage information for long-term stewardship as long as DOE provides training and funding for the additional activities.

• DOE should work with local governments to develop training in how to adapt their expertise to the new situations of contaminated property. Local governments have little experience in applying their expertise in land-use control, protection of public health and safety, and information management to property that is contaminated with long-lived hazardous substances.

(This report was prepared by the Environmental Law Institute (ELI) and the Energy Communities Alliance (ECA) with funding from the U.S. Department of Energy, Office of Long-Term Stewardship, under Assistance Instrument No. DE-FC01-97-EC 14091.)