8.1 Preface

The nation's federal, state, and local environmental laws have been enacted to protect human health and the environment. In the same way that private-sector facilities are required to comply with these laws, it is National Governors Association policy that federal facilities must comply with and be held to these same standards. There can be no justification for any lower standard of protection of public health and the environment from federal facilities than from any other facility. This policy addresses federal facilities, with particular focus on sites owned and/or operated by the U.S. Department of Energy (DOE) and the U.S. Department of Defense (DoD).

8.2 Cleanup of U.S. Department of Energy Sites

The cleanup of the nuclear weapons complex is the largest single environmental cleanup program in the world, with an annual budget of approximately $6 billion. Cleanups of all DOE sites are conservatively estimated to cost at least $200 billion and to take several decades. The Governors support efforts to accelerate the cleanup of DOE sites, provided that accelerated cleanup does not result in less cleanup and regulatory compliance failures and provided that established commitments are achieved. The implementation of accelerated cleanup efforts should be an enhancement to the annual allocations necessary to achieve established long-term cleanup goals.

The complete removal of waste and contamination from DOE sites should remain a priority. However, final cleanup decisions that do involve leaving waste and contamination on-site should only be made after a robust, long-term stewardship plan has been agreed to by state regulators and DOE. The federal government also should recognize that failure to provide adequate funding will increase total cleanup and mortgage costs as environmental liabilities persist and/or worsen. An increase in current funding levels represents the single most effective efficiency investment available to the federal government. In instances where waste and contamination will remain at DOE sites, the use of federally financed, state-managed trust funds is a critical element among the options available to states to ensure that states have the financial resources to protect public health and the environment from residual hazards.

8.2.1 Maintain and Enhance Independent State Oversight. Maintaining and enhancing independent state oversight of environmental compliance at federal facilities is critical to continued success in cleaning up federal facilities. To continue and accelerate the trend toward accountability and effectiveness, the National Governors Association offers the following recommendations.

8.2.1.1 Recommendations

• Congress should allow states to assume the role of regulators of cleanups at federal facilities. Governors recognize the assistance and resources the U.S. Environmental Protection Agency (EPA) has given to states in the cleanup of federal facilities. Delegation of the EPA Superfund authority to qualified states should be streamlined, and a process should be created that authorizes states with their own Superfund programs to implement those programs at federal facilities in lieu of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
• Congress should amend applicable federal laws to ensure that all wastes, including radioactive wastes, ordnance, and explosive wastes, are within the purview of state and EPA authorities. Congress also should amend the Atomic Energy Act in a manner that allows states to regulate DOE defense waste disposal sites in accordance with rules promulgated under the act. Efforts should be made to coordinate all federal requirements and ensure adequate support and funding for state oversight. In addition, Congress should require that all quasi-federal sovereign businesses and corporations meet the same environmental compliance standards as other federal agencies.
• The Governors oppose legislation that would diminish state authority over federal facilities' environmental obligations.
• Congress should ensure that state environmental personnel are given full access to sites and compliance data. Security clearances, when necessary, should be approved expeditiously. Congress also should ensure prompt declassification of documents and information that no longer need national security classification but provide valuable information on contamination at federal sites. If full compliance cannot be achieved, states should be afforded an opportunity to work with DoD to develop mitigations strategies that can accommodate national security constraints.
• Credible external regulation of DOE sites and operations, including those under National Nuclear Security Administration (NNSA) authority, is essential to ensure effective compliance under federal and state radioactive materials control regulations and environmental laws. Existing Agreement State programs for the regulation of radioactive materials and EPA programs for regulation of environmental matters are in place to efficiently achieve these goals.
• The host state should always be offered the opportunity to be a formal part of any assessment, cleanup, remediation, and long-term stewardship agreements. States are often in a good position to provide input from their citizenry that will reflect the long-term needs of the local population, as well as input that represents the state's needs in terms of its management of sites that cease being federal properties.

8.2.2 Improve the Efficiency of Federal Environmental Cleanups. The states and federal government have long focused on improving the efficiency of Environmental Management program (EM) activities at DOE facilities. Significant efficiency gains have been realized and there is room for further improvement.

8.2.2.1 Recommendations

• At the site level, DOE sites should continue to work with NGA's Federal Facilities Task Force and other stakeholders early in the development of cleanup plans and conceptual ideas before significant engineering and financial investments are made.
• DOE should take immediate steps to ensure that its programs with ongoing missions, such as Defense Programs (DP), Legacy Management (LM), or Nuclear Energy (NE), are required to budget for proper facility maintenance and decommissioning costs and discourage efforts to pass those costs along to the EM program.

8.2.3 Set a National Agenda and Deadline for Cleanup and Compliance. The Governors recognize and support the ongoing efforts of DOE to carry out accelerated plans to address remaining DOE facility cleanups within a definite timeframe. Cleanup should be accomplished as soon as possible to reduce risks and to reduce the life-cycle maintenance expenditures, but not at the cost of weakening cleanup standards. Cleanup plans also need to evaluate the need for and costs of long-term stewardship at these sites.

8.2.3.1 Recommendations

• Congress should adopt a reasonable timeframe for completing all environmental compliance and restoration at DOE facilities. Where feasible at a particular site, cleanup should be accomplished as soon as possible to reduce risks and reduce the need for long-term expenditures to maintain the site. Action plans and interim milestones should ensure continued progress toward the national goal.
• Congress should enact legislation clarifying the CERCLA waiver of sovereign immunity for federal facilities and sites the federal government no longer owns.
• DOE should be encouraged to work with state and local governments to examine the possible use of state cleanup programs for the remediation and reuse of non-National Priorities List (NPL) federal facilities in accordance with state requirements.

8.2.4 Fund Environmental Restoration and Compliance. There is an urgent need for secure, sustained funding to meet environmental obligations, including the safe management of nuclear materials.

8.2.4.1 Recommendations

• The federal government should provide funding levels that allow for complexwide integration plans to be implemented on schedule.
• Congress should ensure adequate stable funding to promote long-term planning, consideration of life-cycle costs, and long-term operations and maintenance for environmental restoration and compliance activities by all federal agencies.
• Congress should provide adequate and stable funding to support state oversight and implementation activities at federal facilities. Cost-reimbursement policies for state regulatory oversight should be flexible, recognizing that states have different needs.
• In addition to its cleanup duties, DOE activities at relevant sites encompass a broad range of non-cleanup responsibilities that continue to grow as excess infrastructure and materials, waste streams, and other liabilities are transferred from other agency programs. Congress must recognize the budget implications of these liability transfers and provide funding levels to EM commensurate with its expanding responsibilities.

8.2.5 Develop Comprehensive Waste and Material Management Programs. Operations at DOE facilities during the past 40 years have produced huge amounts of hazardous, solid, and radioactive wastes and nuclear and non-nuclear materials. There is an urgent need for DOE to develop comprehensive waste management programs that prioritize the most serious problems.

8.2.5.1 Recommendations

• DOE should prepare comprehensive waste management plans based on maximum feasible pollution prevention, waste reduction, and recycling. Such plans should provide assurance of adequate capacity to treat, store, or dispose of all hazardous, solid, and radioactive wastes and nuclear and non-nuclear materials.
• DOE should fully characterize, document, map, and disclose environmental contamination, cleanup level, and long-term stewardship activities at its sites and provide this detailed information to state regulators and communities impacted by its sites.

8.2.6 Maintain a Productive and Open State-Federal Relationship. Since 1993, the states and federal government have maintained an effective dialogue on DOE complexwide environmental compliance and waste management integration issues through the NGA Federal Facilities Task Force. The group has served as a valuable forum for Governors, state regulators, and the U.S. Department of Energy to work toward resolving many complex environmental issues facing the department. Other state organizations also maintain useful relationships with DOE and other federal agencies through which contentious environmental issues are resolved or clarified.

8.2.6.1 Recommendations

• The Governors recognize the critical importance of the NGA Federal Facilities Task Force and strongly recommend its continuation.
• The Governors recognize the importance of other state organizations maintaining useful relationships with DOE and other federal agencies and support continued work between these groups and federal agencies.

8.2.7 Provide for Long-Term Stewardship of Contaminated Sites. Developing long-term stewardship plans for waste sites is a critical facet of the cleanup process and should be swiftly implemented. Long-term stewardship implications should be considered when making remedy decisions. When cleanup is complete, hazardous and/or radioactive substances may remain at most sites, precluding unrestricted future use of land, surface waters, and/or groundwater. This leaves long-term federal government stewardship responsibilities for potentially tens of thousands of years. Measures must be planned and implemented to ensure adequate protection of human health and the environment. Issues include the adequacy of funding; lack of convincing evidence that land-use controls, institutional controls, and other stewardship measures are reliable and perpetually enforceable; lack of identified parties responsible for stewardship implementation; and the absence of a comprehensive system to identify, track, and store cleanup records. Future generations should not bear the burden of long-term stewardship without sufficient information, protection, and resources.

8.2.7.1 Recommendations

• Cleanup policies and practices of the federal government should take into account reasonably anticipated future land uses and the life span of the contamination being managed, and protect such uses to the extent practicable.
• Resource provision and responsibility for long-term stewardship should be part of the remediation selection process and enforceable in decision documents. Remediation decisions must be revisited periodically to evaluate new technologies, changing land use, changing risk evaluation, and information needs. In areas where it was not previously considered, stewardship should be added to existing decisions.
• Guaranteed funding for cleanup and stewardship should be a national priority.
• DOE should work with state and local governments to develop a records management facility that will always be accessible at or near the location of the stewardship activities.
• Ideally, all DOE facilities should be remediated to a level allowing unrestricted use. However, where remediation to such a level is not practical due to current technical or budgetary constraints, at a minimum covenants should be inserted into final remedy decision documents detailing the stewardship plan and funding. In addition, the plan must provide ongoing vigilance to ensure that appropriate levels of stewardship are maintained.
• A systematic process should be implemented to ensure that developments in science and technology, as well as advancements in knowledge, are incorporated into long-term stewardship strategies.

8.3 Cleanup of U.S. Department of Defense Sites

The U.S. Department of Defense has thousands of sites, both active bases and formerly used defense sites (FUDS) and Base Realignment and Closure (BRAC) sites that will require investigation and cleanup. DoD also has thousands of ranges with unexploded ordnance (UXO) that are a threat to both human safety and the environment, raising long-term stewardship challenges. Many of these ranges are located on military bases that are being transferred to private, state, or local ownership as part of the base closure process. Others, already in private ownership, face increasing development pressures. Potential public exposure to UXO hazards present on these ranges is rapidly increasing while the available technologies for identifying and removing buried UXO are expensive to implement and are not 100 percent effective. Cleanup estimates for these sites continue to grow as more sites containing ordnance and explosive waste are discovered.

8.3.1 Maintain and Enhance Independent State Oversight. DoD and the military services have frequently resisted state and EPA attempts to regulate the investigation and cleanup of defense sites, including UXO sites, despite the requirements of the Federal Facility Compliance Act of 1992 (FFCA). Independent state regulation of the investigation and cleanup of UXO, munitions and explosives of concern, and munitions constituents is necessary to protect human health and the environment.

8.3.1.1 Recommendations

• Congress should clarify that DoD's obligations to clean up unexploded ordnance, munitions and explosives of concern, and munitions constituents do not impair states' and EPA's authority to regulate the characterization and cleanup of unexploded ordnance, munitions and explosives of concern, munitions constituents, and chemical residues in soil and groundwater. EPA should promulgate a rule under the Resource Conservation and Recovery Act that defines military munitions left on closed or transferred ranges as a solid waste, as required by FFCA. Congress should substantially increase the available funding for cleanup of FUDS and BRAC sites so these sites can be made safe and returned to productive use in a reasonable timeframe.
• The Governors recommend that adequate federal funds be made available to bring former military sites into compliance with state standards in a quick and expeditious manner. If a site is transferred before the cleanup is complete, then the funds should be available to the transferee to ensure compliance with state standards.
• The Defense State Memorandum of Agreement (DSMOA) was established as a mechanism to facilitate and fund state oversight at DoD contaminated sites. The DoD's recent interpretation of that agreement has strained a number of state enforcement budgets, which has resulted in reduced state oversight at these sites. Governors support changes to 10 USC 2701 that clearly prohibit DoD from withholding DSMOA funds when states exercise their enforcement authority on military property. Governors also urge a statutory change that specifically authorizes DSMOA funds to be used for state activities related to property transfers under the Defense Environmental Restoration Program (DERP) and BRAC cleanup activities. The change also should allow expenditure of DSMOA funds for staff training and work on policy and guidance related to DoD environmental cleanup activities.
• The Governors oppose legislation that would diminish state authority over federal facilities' environmental obligations.

8.3.2 Maintain a Productive and Open State-Federal Relationship. Through federal-state efforts, much progress has been realized across the country to bring DoD facilities under the purview of national and state environmental statutes. Despite this progress, much work remains.

8.3.2.1 Recommendations

• DoD should communicate and consult with states about the identity of FUDS, as well as plans for their investigation and restoration, and should fund state participation. DoD and the military services should have regular and ongoing coordination with states regarding prioritization and remediation of FUDS. The assertion of sovereign immunity by the U.S. Army Corps of Engineers regarding FUDS is unacceptable. The FUDS engineering regulation must be in line with CERCLA.
• While DoD has special expertise in rendering unexploded ordnance safe, states consider themselves, along with EPA, to be best prepared to make decisions concerning adequacy of site characterization, appropriate response to contamination, establishment of cleanup standards, and appropriateness of relying on institutional controls.

8.3.3 Develop Comprehensive Waste Programs. Although many federal agencies will have to conduct remedial actions at individual sites in the coming years, no overall plan exists for cleaning up and restoring the environment at all federal facilities. A plan for a concerted and expeditious cleanup of all DoD sites is needed.

8.3.3.1 Recommendations

• Sound waste management practices should be maintained at closing bases. When sites containing ordnance and explosive wastes are, or will no longer be, under DoD authority, any cleanup actions should be subject to state oversight and approval.
• New technologies for identifying and treating these hazards need to be developed. Institutional controls need to be in place to limit access to these sites until proper remediation occurs.
• Decisions about remedy or reuse at UXO sites cannot depend on the incremental risk analysis and management methods used for the more common chemical contamination found at cleanup sites. For chemical residues remaining in the soil or groundwater, states may elect to participate by utilizing CERCLA, the Resource Conservation and Recovery Act, or state laws. States have the primary decisionmaking role within the parameters of those statutes.

Time limited (effective Winter Meeting 2008–Winter Meeting 2010).
Adopted Winter Meeting 1990; reaffirmed Winter Meeting 1994; revised Annual Meeting 1995, Annual Meeting 1997, Annual Meeting 1999, and Winter Meeting 2000; reaffirmed Annual Meeting 2001; revised Winter Meeting 2002, Annual Meeting 2002, Winter Meeting 2004, Winter Meeting 2006, and Winter Meeting 2008 (formerly Policy D-14).