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Settlement of the Contempt Action Against the Department of Energy


The following is a press release and memorandum from NRDC's nuclear program regarding settlement of a landmark lawsuit against the Department of Energy. Also attached is the Joint Stipulation and [Proposed] Order.

PRESS RELEASE

Lawsuit settled in country's largest environmental project: $6.25 Million Technical Assistance Fund Established For Communities Affected by Department of Energy Cleanup Program

WASHINGTON (December 14, 1998) - In a settlement of a landmark lawsuit brought by 39 environmental and peace organizations, including the Natural Resources Defense Council (NRDC), the U.S. Department of Energy (DOE) has agreed to provide a $6.25 million technical assistance fund for communities affected by the department's program to clean up radioactive waste and contamination from nuclear weapons production. The technical assistance fund will be complemented by a state-of-the-art, Internet-based resource providing detailed information on the progress and impact of the DOE cleanup effort.

"For the purpose of protecting the nation's water, air and land, this settlement is superior to the Programmatic Environmental Impact Statement DOE originally agreed to prepare," said David Adelman, a Natural Resources Defense Council lawyer who represented the 38 plaintiffs with the Washington D.C. law firm of Meyer & Glitzenstein. "We now have the data, the resources and the processes necessary to make DOE environmental work more open to public scrutiny."

The settlement, which was delivered to Federal District Court Judge Stanley Sporkin today, should end nine years of litigation charging that DOE failed to develop its cleanup plans properly. DOE faced a contempt of court hearing before Judge Sporkin for not complying with a previous legal agreement in the case.

Key elements of the settlement include:

  • Creation of a regularly updated, publicly accessible database providing details about contaminated sites under major DOE programs, listing characteristics such as waste type, volume, radioactivity, and transfer and disposition plans;

  • DOE funding for at least two national stakeholder forums to assure the database is comprehensive, accurate and useful;

  • Completion of environmental analyses, with public input, and plans for "long-term stewardship" at contaminated DOE sites to ensure protection of the public and the environment;

  • Establishment of a $6.25 million fund to assist non-profit groups and tribes to monitor DOE environmental activities;

  • Payment of plaintiffs' legal fees and expenses incurred to litigate this case; and

  • Continuing federal court oversight to assure adherence to the agreement.

"This is a major victory both for the environment and for public participation," said Jay Coghlin of Concerned Citizens for Nuclear Safety. "We have won access to the tools necessary for public monitoring of DOE's compliance with the nation's obligation to address the toxic legacy of nuclear weapons production."

"With access to program-by-program data on DOE-generated waste, we'll also be able to demonstrate the link between ongoing U.S. nuclear weapons research and production activities, and the dangers of contamination," added Jackie Cabasso, of Western States Legal Foundation. "The cause and effect relationship will be clear: more nuclear weapons programs means more nuclear waste."

Many of the groups first sued DOE in 1989, claiming that the agency must conduct thorough analyses before continuing with plans to increase nuclear weapons production and modernize its facilities. DOE, after signing an agreement allowing public review of its proposals, abandoned the project for several years. In April, 1997, plaintiffs sought enforcement of the original agreement from Judge Sporkin. The discussions which led to today's settlement were conducted at his urging.

Plaintiff Organizations
Citizen Alert, NV
Citizens for Alternatives to Radioactive Dumping, NM
Citizens Opposed to a Polluted Environment, CA
Concerned Citizens for Nuclear Safety, NM
East Bay Peace Action, CA
Energy Research Foundation, SC
Friends of the Earth, Washington, DC
Greenpeace, Washington, DC
Hayward Area Peace and Justice Fellowship, CA
Lane County American Peace Test, OR
Lawyers' Committee on Nuclear Policy, NY
Livermore Conversion Project, CA
Los Alamos Study Group, NM
Nashville Peace Action, TN
Natural Resources Defense Council, Washington, DC
Neighbors in Need, OH
Nevada Desert Experience, NV
Nuclear Age Peace Foundation, CA
Oak Ridge Environmental Peace Alliance, TN
Peace Action, Washington, DC
Peace Farm of Texas
Physicians for Social Responsibility, Washington, DC
Physicians for Social Responsibility, CO
Physicians for Social Responsibility, NM
Physicians for Social Responsibility, NY
Physicians for Social Responsibility - Greater SF Bay Area, CA
Plutonium Free Future, CA
Rocky Mountain Peace and Justice Center, CO
Sam Jose Peace Center, CA
Seattle Women Act for Peace/Women Strike for Peace
Shundahai Network, NV
Sonoma County Center for Peace and Justice, CA
Tri-Valley Communities Against a Radioactive Environment, CA
Western States Legal Foundation, CA
Women Concerned/Utahns United
Women for Peace - East Bay, CA
Women's International League for Peace and Freedom - East Bay Branch, CA



MEMORANDUM REGARDING SETTLEMENT OF THE CONTEMPT ACTION AGAINST THE DEPARTMENT OF ENERGY

In December 1998, the NRDC Nuclear Program achieved a landmark settlement of a ten-year National Environmental Policy Act (NEPA) lawsuit involving the Department of Energy's $6-billion-a-year program managing radioactive waste and the cleanup of 50 years of environmental contamination caused by nuclear weapons production in the United States. NRDC filed the original motions and briefs in the case on behalf of itself and the 38 citizen groups that were co-plaintiffs in this action. At NRDC, Barbara Finamore, Christopher Paine, Tom Cochran, and David Adelman, upon starting at NRDC in July 1998, worked closely with outside counsel on the contempt-of-court action, which led to extended settlement negotiations with high-ranking officials at the Department of Energy ("DOE") and the Department of Justice ("DOJ").

Under the settlement, DOE will provide $6.25 million for an independently administered citizen monitoring and assessment fund and establish a comprehensive Internet database for its waste management and cleanup programs. This settlement is unprecedented, as it represents the first time that DOE has provided funds for citizen organizations to monitor independently its environmental management activities. This information and funding is essential to ensuring that DOE's cleanup work is protective of human health and the environment. It is also important to NRDC's efforts to raise public awareness that U.S. nuclear weapons research and production activities have caused and continue to cause some of the most serious and long-lived environmental problems confronting the United States.


I. The Department of Energy's Environmental Cleanup Program

The significance of the settlement is all the more apparent when considered in light of the magnitude of the DOE environmental restoration program. The DOE program is the largest environmental cleanup in the world, with more than 100 facilities located in 25 states and an annual budget exceeding that of the Environmental Protection Agency. To date, DOE has identified over 10,000 individual sites at these facilities where toxic or radioactive substances have been improperly abandoned or released directly into soil, groundwater, or surface waters. Under current estimates, nuclear weapons production in the United States has resulted in the contamination of more than 79 million cubic meters (21 billion gallons) of soil and 1.8 billion cubic meters (475 billion gallons) of groundwater -- in comparison, the Exxon Valdez spill involved the release of 11 million gallons of oil. In addition, DOE manages more than 24 million cubic meters (6.4 billion gallons) of hazardous or radioactive wastes generated by past and ongoing nuclear weapons production.

Despite the federal government's massive investment of time and resources, the environmental threats and impacts from nuclear weapons production cannot be fully remediated, and the environmental legacy of weapons production will persist for hundreds and, in many instances, thousands of years. These technical constraints will require difficult and highly political decisions to be made, which means that NRDC's involvement is all the more important.


II. The December 1998 Settlement

In April 1997, NRDC took the lead in representing 38 local-community environmental and peace organizations in a legal challenge to DOE's failure to comply with a Federal District Court Order originally won by NRDC in 1990. DOE violated the 1990 Order by failing to prepare a programmatic environmental impact statement (PEIS) for its environmental restoration program. Without consulting either the court or the plaintiff groups, DOE abandoned preparation of the PEIS in 1994.

During the course of the litigation, the court strongly encouraged the parties to enter into negotiations and, in early 1998, appointed an independent facilitator to assist the parties. Understanding the limited value of compelling DOE to prepare a PEIS post-hoc -- which it would undertake, most likely without any further penalty from the court, by simply hiring a commercial contractor for $15-20 million -- the plaintiff groups developed several innovative settlement options. After almost a year of sporadic and aimless negotiations, the impending prospect of a trial on the contempt issue focused DOE's attention, leading to intense high-level negotiations involving DOE's General Counsel and the Assistant Attorney General of the Environment and Natural Resources Division of the Justice Department. In the end, the parties settled on the independent citizen monitoring fund and the complementing Internet database, both of which were proposed by plaintiffs, as providing a viable resolution of the suit.

The settlement also requires DOE to undertake a forward-looking technical assessment, which will include a public comment period, analyzing the options for the long-term maintenance and control of DOE contaminated sites. Virtually all of the sites "remediated" by DOE will be left with substantial quantities of hazardous and radioactive contamination that will require long-term oversight and monitoring. DOE's commitment to begin the process of assessing how it will safeguard the public and the environment in and around DOE sites in the long-term therefore represents an important advance. The settlement also requires DOE to compensate the plaintiffs for their costs and reasonable attorney fees.

NRDC will remain involved in the implementation of the settlement. We will work closely with the independent non-profit organization, RESOLVE, that will be responsible for administering the citizen monitoring fund. We also plan to use our technical expertise on nuclear issues and experience with database interfaces to ensure that the DOE database is comprehensive, accurate, and accessible.

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