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Top down or bottom up: does it matter if the well’s run dry? Is the FFERDC report still relevant?

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.

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Top down or bottom up: does it matter if the well’s run dry? Is the FFERDC report still relevant?

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  1. 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

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

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

  4. 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

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

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

  7. 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

  8. 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

  9. 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

  10. 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

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

  12. 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 12088 implications • Prioritize activities, not risks • “Risk plus” approach to prioritization • Schedule considers, but not driven by funding targets

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

  14. 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

  15. 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

  16. 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

  17. Observations • Federal facility cleanup a “virtual” issue • States, collectively, have great power • 1987 10 Governor letter • 1990 NAAG-NGA report on FF cleanups • 1992 FFCA • 1990’s -- increased cleanup budgets • 2002 -- 2006 defeated DOD munitions exemptions

  18. 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

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