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Institutional Controls or Emperor's Clothes? Long-Term Stewardship of the Nuclear Weapons Complex

November 1998

Citation: 28 ELR 10631

Issue: 11

Author: John S. Applegate and Stephen Dycus

Editors' Summary: DOE is responsible for managing as many as 81 geographic sites that are contaminated with long-lived hazardous and radioactive materials. The longevity of these wastes will require long-term stewardship at these sites in order to protect both human health and the environment. This Article discusses the challenges that DOE faces in developing an effective long-term stewardship program. The authors begin with an overview of DOE's waste management program and a description of its long-lived wastes. They proceed to examine the statutory framework — primarily CERCLA and RCRA — for addressing such wastes. The authors find that the statutes and regulations fail to impose effective restrictions on the future use of contaminated property and do not establish the types of institutions that are necessary to manage long-lived wastes. Next, the authors describe the various waste management options that DOE currently uses or plans to use. They also identify a number of institutional controls that DOE could utilize to restrict future uses at sites holding long-lived wastes. They conclude that existing institutional controls are not likely to be effective over the long term. Therefore, the authors advocate the development of new legal instruments, procedures for current decisionmaking, and stewardship institutions that will ensure the successful long-term management of long-lived wastes.

The authors are, respectively, Professor of Law, Indiana University School of Law — Bloomington, and Professor of Law, Vermont Law School.

This Article has benefitted greatly from the willingness of the U.S. Department of Energy (DOE), the Environmental Law Institute, and Resources for the Future to permit the authors access to preliminary drafts of several works in progress on the question of long-term stewardship. In particular, the authors thank James Werner, John Pendergrass, and Katherine N. Probst for many helpful conversations and written exchanges on this subject. The authors also thank James T. Melillo and his staff at DOE's Environmental Management Advisory Board, on whose Long-Term Stewardship Committee the authors serve. Of course, the views expressed herein are those of the authors, and they do not necessarily reflect the views of any of the foregoing individuals or organizations. The authors are also grateful for the research assistance of Amanda Prebble at the University of Cincinnati College of Law and Amy B. Mills at the Vermont Law School.

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