Consent Decree

New York and the federal government had long disputed both the extent of the responsibility of the federal government for site cleanup under the West Valley Demonstration Project Act (WVDPA), as well as which government is liable for perpetual care of any remaining wastes after decommissioning activities are complete. In December 2006, New York State, NYSERDA and the NYS Department of Environmental Conservation filed suit against the United States and the federal Department of Energy (DOE) in federal court, seeking to resolve the relative responsibilities of the State and the federal government for the cost of remediating the Site. The complaint: (a) asserted claims for cost reimbursement and damages to the State’s natural resources under section 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq. (“CERCLA”) (b) sought a delineation by the court of DOE’s responsibilities under the WVDPA; and (c) requested a ruling under the Nuclear Waste Policy Act (“NWPA”), 42 U.S.C. 10107, that the federal government must pay the fee for offsite disposal of the high level radioactive waste stored at the Site.

After extensive confidential settlement discussions overseen by a court-appointed mediator, the two governments reached agreement on a number of the State’s claims. The agreement, formally known as a Consent Decree [PDF], identifies a specific cost share for each government for specified facilities and known areas of contamination, and sets forth a process for determining cost shares for contamination that may be identified in the future. It also requires NYSERDA and DOE to develop detailed plans to assure continued consultation between the agencies during the remainder of the cleanup. Regarding this latter item, in September 2011, NYSERDA and DOE entered into a Consultation and Coordination Agreement [PDF] that addresses the types of documents that must be shared, provision of site access, frequency of meetings between DOE and NYSERDA, and the like.

Notably, the settlement reached between the state and federal governments relates only to allocation of financial responsibility and does not affect in any way the cleanup alternatives that are being or may be developed in the ongoing EIS process. Thus, for example, the Consent Decree states that each government will pay 50% of the long-term costs of remediating the NRC-licensed Disposal Area, one of two landfills at the Site, regardless of whether the final remedy involves exhumation of landfill wastes, maintenance of the wastes in place or some other remedy. The federal and state governments have similarly reached allocation agreements regarding other facilities at the Site, as stated in the Consent Decree. The EIS process will decide the appropriate remedy for each of these facilities.

Under the federal Nuclear Waste Policy Act, any entity disposing of high level radioactive waste at a federal repository is required to pay a fee sufficient to cover the pro rata costs for the development and operation of the repository. DOE calculates that the disposal fee for the 275 canisters of West Valley HLW is in excess of $250 million (much of which is accrued interest). New York and the federal government have disagreed about who is responsible for paying this fee. The claim concerning responsibility for the disposal fee was not resolved in the settlement. This issue will be the subject of further settlement discussion or litigation between New York and the federal government.

Although not legally required to do so, the State solicited public comments on the Consent Decree prior to asking the court to approve the document. The State received comments from the Coalition on West Valley Nuclear Wastes; the West Valley Citizen Task Force; and Citizens’ Environmental Coalition. Many of the comments expressed concern that the Consent Decree somehow compromises or adversely impacts the ongoing EIS process. The State responded that the Consent Decree involves only the allocation of financial responsibility for the various possible remedies to be chosen through the EIS process, and does not affect selection of any particular remedy. The State concluded that none of the comments raised issues calling into question the appropriateness of the terms of the Consent Decree.

In August 2010, the U.S. District Court, Western District of New York, approved and entered the Consent Decree, thereby formalizing the settlement between New York State and the federal government.