Top down or bottom up: does it matter if the well’s run dry? Is the FFERDC report still relevant? Daniel S. Miller Senior Assistant Attorney General Colorado Department of Law DOE Intergovernmental Meeting November 12-14, 2008

FFERDC “Federal Facility Environmental Restoration Dialogue Committee” a/k/a “Keystone Report”

Overview History and Context of FFERDC FFERDC Principles Budgeting and Priority-Setting recommendations Rocky Flats experience Observations

FFERDC History/Context Began spring 1991; interim report 2/93; final report 4/96 Federal Facility Compliance Act 10/92 “Train wreck” projections; BEMR Criminal liability fears of federal officials National priority-setting models Criticism of regulatory agreements Criticism of CERCLA process Big problem, small progress, huge distrust

Interim Report Enhance stakeholder involvement –SSABs, broaden info sharing –Greater stakeholder involvement in budget process Allocation of budget “shortfalls”

Final Report Implementation of interim report was mixed; clarification required; membership expanded Adopted series of principles Refined Stakeholder involvement recommendations Clarified/refined budget recommendations

Final Report Principles related to funding Nature of the Obligation –Legal, ethical, public trust, intergenerational –Federal Government should be a leader Sustained commitment to cleanup –Unwavering effort –Stable, adequate funding levels

Funding-related principles Consistent treatment –Federal agencies not above the law –Should be subject to same standards as private entities, especially regarding cleanup Performance-based contracting Role of cleanup agreements –Resolve competing concerns, authorities –Priority-setting tool –External oversight provides credibility

Funding-related principles “Risk plus” prioritization –Recognizes limits of risk assessment methods, importance of other factors Life-cycle costs Socio-economic factors Pragmatic factors –Even with fiscal constraints, must protect health and environment –But may need to prioritize timing Interdependent roles and responsibilities

Funding recommendations Again, context –FFCA –RCRA/CERCLA overlap; U.S. v. Colorado –“Train Wreck” –BEMR (Baseline Environmental Management Report) Main goal: reconcile top-down, bottom up approaches to setting cleanup budgets

Funding recommendations Prerequisites for success – strong stakeholder involvement – good communication among regulator(s) and DOE facility – sound cleanup strategy, project baseline, and cost estimates

Funding Recommendations Cleanup agreements should consider using “rolling milestones” –Project end dates, out-year milestones –Near term milestones (FY, FY+1, FY+2) –Executive Order implications Prioritize activities, not risks “Risk plus” approach to prioritization Schedule considers, but not driven by funding targets

Funding recommendations “Budget-building shortfalls”: –Resolve through consultation, dispute resolution, reservation of rights “Appropriations shortfalls” –Flexible fair share –Reservation of rights

FFERDC recommendations at Rocky Flats RFCA incorporated FFERDC funding and milestone setting recommendations Never fully implemented OBE: –Contractor secured Congressional agreement for stable funding –Progress reduced tensions

Rocky Flats hybrid solution RFCA incorporated some end date, out- year and near--term milestones, revised annually Over time, project-specific milestones changed to “earned value” milestones –Complete X percent of remaining work

Observations FFERDC report is 12 years old Principles potentially powerful Rolling milestone process still viable –Other approaches may also be useful State authority still a key issue –RCRA vs. CERCLA

Observations Federal facility cleanup a “virtual” issue States, collectively, have great power – Governor letter –1990 NAAG-NGA report on FF cleanups –1992 FFCA –1990’s -- increased cleanup budgets – defeated DOD munitions exemptions

What’s next? Only the groups here today can re- energize this issue Possibilities: –Re-endorse FFERDC report (NGA, NAAG, ECOS, ECA, ASTSWMO, Tribes) –Follow up 1990 NGA-NAAG report (NGA, NAAG) –Make issue known to Congress, Administration