2. I. THE HYPOTHESIS
I hypothesize that secrecy has been one of the most important root causes of
many of the environmental problems at defense facilities. I refer to environmental
problems in general, not merely compliance issues, because actions and decisions
creating environmental problems are not necessarily illegal. This hypothesis is
especially true with respect to federal facilities, which enjoy specific exemptions
from environmental laws, 2 and is true where bars to enforcement exist.
The Natural Resources Defense Council (NRDC) sometimes litigates against the
United States Department of Energy (DOE), my former client. The contrast between
working for DOE and working on the outside could not be more dramatic. One feels
as though somebody suddenly reversed gravity, or, at a minimum, that one has
stepped through the looking glass. Probably the most fundamental *353 disparity
between positions inside and outside the DOE is access to information. A German
reporter reminded me of this change the other day when she asked what exactly my
job entailed. I thought for a moment, and I realized that I spend a good part of my
time just trying to obtain information from DOE to do my work. Hence, it is
important to examine the importance of secrecy in creating, perpetuating, and
preventing the solution of environmental problems. Because secrecy costs so much
time, it plays a critical role in the daily activities of watchdog and advocacy groups
such as the NRDC. Basically, in a battlefield where information is power, data are
bullets; and many in DOE and the Department of Defense (DOD) believe that the
departments should not give their bullets to you to fire back at them.
Before testing the hypothesis, let me give this thumbnail sketch of some of the
environmental problems in the defense complex. First, a couple of definitions are
needed. I use the word "defense" to refer to both the DOE nuclear weapons complex
and to DOD. When I discuss "environmental problems," I include pollution or
contamination problems, nuclear reactor safety, nuclear weapons testing, and land
use issues. Finally, the word "secrecy" can include a whole variety of subjects that
have different legal names, such as "Top Secret," "Unclassified Controlled Nuclear
Information," and "Confidential." For my purposes, the scope of the word really
doesn't matter. 3 Secrecy simply means that a document is not available when you
need it.
I believe secrecy has, in large part, created many environmental problems. DOE
currently estimates that the costs of cleaning up its nuclear weapons facilities range
from $100 billion to $300 billion. 4 In relative scale, these sums are comparable to
the entire civilian sector cleanup under the Superfund program. 5 The cleanup of all
the Superfund sites caused by the production of the civilian products we use every
day, such as automobiles, electricity, chairs, *354 clothing, paper, etc., will cost
about the same amount--$100 billion to $300 billion--as the cleanup price for one
product: nuclear warheads. The cost of cleaning up environmental contamination at
3. the DOD facilities is now estimated at about $25 billion, 6 and this estimate may be
conservative.
The scope of this environmental devastation is not widely known because the
facilities comprising the defense enterprise have operated far from the public eye.
The enormous size of defense facilities is difficult to comprehend until one stands on
the windswept high desert in eastern Idaho or the plains of eastern Washington at the
Hanford facility. The Idaho National Engineering Laboratory covers eight hundred
square miles, the Savannah River Site covers three hundred square miles, and
Hanford covers five hundred square miles. 7 At Idaho a helicopter is often used to
travel within the facility because it is not possible to drive from place to place
quickly. At Hanford, there are 177 tanks containing liquid high-level radioactive
waste, each the size of the Capitol dome in Washington, D.C. The scale of the
cleanup task is almost beyond comprehension to people who have not seen it for
themselves.
II. TESTING THE HYPOTHESIS
To test the hypothesis that secrecy has caused many defense environmental
problems, I examine the potential impact of a variety of factors. In science this is
called a "control," although for this Article, I just call it a process of elimination.
One possible factor is that defense facilities are larger than civilian facilities.
However, I believe that the steel and auto industries have comparably large industrial
operations. Thus, the factor of size can be eliminated as a reason why the
environmental problems are so great.
A second possible cause of defense environmental problems might be the
difference in disclosure requirements between defense and civilian facilities. In
contrast to the defense industry, the steel and auto industries are both subject to
disclosure under the Securities and Exchange Commission 10-K forms, 8 under
Superfund, 9 *355 and under state environmental cleanup acts. 10
A third possible factor could be that the technology used in defense facilities is
significantly different than that in civilian industry. This claim is also false, with one
exception--the reprocessing of spent nuclear fuel. One semi-private facility
performed reprocessing in West Valley, New York, and produced waste and
contamination for which cleanup is projected to cost more than a billion dollars. That
operation was halted, however, after a few years due to public scrutiny and a
determination that the process was not economical. 11 Thus, public scrutiny helped
limit the environmental damage caused by the one technology that was largely
unique to DOE and that caused a significant portion of DOE's environmental
problems. Also, where comparable technologies were operated, the government
facilities had more problems. For example, the reactors DOE operates for nuclear
weapons material production have had far more safety problems than those on the
civilian side, as measured by both accidents and accident precursor events. 12 Hence,
4. it does not appear that unique technologies can explain the greater environmental
problems at defense facilities.
A fourth factor might be that the types of wastes generated in DOE or other
defense facilities are significantly different from wastes generated in the private
sector. For example, the private sector does not have large amounts of liquid waste
from spent nuclear fuel reprocessing. Also, private companies do not generally store
unexploded armaments or chemical weapons. This claim ultimately proves false
because many of the wastes have not been significantly different. 13 DOE and DOD's
environmental problems are disproportionately severe for the large portion of their
waste that are similar to civilian wastes. Most defense site contamination involves
the regular laundry list of solvents, metals, and acids that the private sector produces.
Thus, the wastes the DOE and DOD generate are not so different from civilian
wastes that they are the root cause of *356 the environmental problems of DOE and
DOD.
Finally, a fifth factor might be that the culture in the military is different from
that in civilian industries. I believe a level of arrogance exists in the defense complex
that is not present in private industry. Certainly, some private companies have a
culture of arrogance. Actually, arrogance and secrecy are very related, and it is hard
to say which causes which. I believe that one can have arrogance without secrecy,
but it is more difficult to have secrecy without arrogance, therefore secrecy is the
more fundamental problem.
III. THE AVAILABLE DATA
What information or data exists to determine whether secrecy has caused
environmental problems? The answer to this question is crucial because, as I noted at
the outset, it might be considered prudent to err on the side of caution and retain
some excess secrecy just to be safe. Several examples support the elimination of
excess secrecy to prevent environmental problems.
The first example is something we at NRDC call the LANAC Case, which refers
to the organization of pro bono lawyers who helped NRDC with litigation. 14 This
case was the result of NRDC's work in the mid-1980s to develop a technology to
verify low-yield tests of nuclear warheads. At that time, President Reagan contended
that it was impossible to verify low-yield nuclear tests and therefore it was
imprudent to even negotiate with the Soviets to limit further nuclear testing. By
contrast, Tom Cochran, a distinguished physicist at NRDC, believed a seismic
verification technology would work. To test his theory, NRDC, in cooperation with
the Soviet Academy of Sciences, installed seismic testing equipment and tested it
with conventional chemical detonations in the Soviet Union's Kazahkstan test site.
Ultimately, these tests demonstrated that the technology did work. Subsequently, the
Reagan Administration successfully negotiated an agreement with the Soviets which
called for mutual verification using seismic testing technology. When Tom watched
5. one of the first meetings on mutual verification on television, he saw the President
exchange the actual test data in a folder. Tom attempted to obtain the information
through a Freedom *357 of Information Act (FOIA) 15 request. It seemed reasonable
and logical. The data was taken from U.S. testing stations with equipment that the
DOD bought from NRDC. We wanted to see if the equipment still worked the same
way as when we operated it. Illogically, the DOE refused to give us the data--the
same data they gave to the Russians. From whom were they protecting the
information? And so we litigated the case. 16
The second example supporting the elimination of secrecy to prevent
environmental problems is the Rocky Flats Plant, a nuclear weapons facility in
Colorado that made plutonium triggers. Several years ago, I tried to get some
information to ascertain whether leaks in the pipelines between the buildings were
contaminating the groundwater. I asked only for the blueprints of the underground
appurtenances so that I could examine how the pipelines were built and if they were
related to the contamination. DOE refused to give me the blueprints for the
underground pipelines, claiming that terrorists could sneak through the pipes and
blow up the facility. This explanation was not even technically reasonable since the
pipelines were four inch steel lines with valve vaults and pumps along the line. In the
end, NRDC acquired the blueprints from a contractor. On examination of the
blueprints, we discovered that the real reason DOE refused to disclose the blueprints
appeared to be because they revealed Resource Conservation and Recovery Act
(RCRA) 17 violations. 18
A third example that supports the elimination of secrecy is the public hearings on
RCRA permit applications. Currently, a citizen living near the Rocky Flats plant
who wants to examine the permit application the DOE has filed for operating
hazardous waste facilities at the Rocky Flats plant cannot examine it because the
RCRA permit application is considered restricted as Unclassified Controlled Nuclear
Information. 19 Thus, citizens who want to comment on that permit at a public
hearing do not have access to the *358 document on which they are expected to
comment.
Fourth, a larger scale example exists. NRDC fought for eleven years to stop plans
for a project called the Special Isotope Separation (SIS) Plant to refine weapon-grade
plutonium in Idaho--a $3 billion boondoggle. NRDC finally forced DOE to perform
an environmental impact statement under NEPA. 20 The basic question that we
believed should be asked in evaluating the plutonium plant and, before spending $3
billion, was whether additional weapons-grade plutonium was actually needed. To
answer that question, we sought to find information on how much plutonium the
U.S. possessed. Unfortunately, DOE refused to disclose the U.S. inventory of
plutonium because it traditionally has been prohibited from disclosing ammunition
inventory information. It is preposterous to apply this prohibition to nuclear weapons
materials based on the absurd military strategy that implicitly envisions fighting a
protracted nuclear war. Unfortunately, DOE pressed its plan to build the SIS plant
and spent $588 million before the plan was canceled. 21 Toward the very end of the
6. debate, the Secretary of Energy disclosed that "we are awash in plutonium." 22
Ironically, the problem of surplus plutonium is one of today's great environmental
problems.
IV. THE FUTURE
Finally, I look to the future. Already, DOE is changing. So far DOE has made
small shifts in the way it conducts business. Many changes can be accomplished
without legislative modification. While we in the environmental movement were
never able to meet with Secretary James Watkins during his four year tenure with the
Bush Administration, the new Secretary of Energy, Hazel O'Leary, met with a group
of environmentalists on the fourth day after she was sworn into office. Other little
signs have also shown themselves recently. For example, at the elevators to the
seventh floor where the Secretary's office is located in the Department of *359
Energy headquarters, two armed guards used to stand before glass doors. Now just
one unarmed guard escorts visitors, and there are no glass doors. Certainly, this
change is merely symbolic, but nonetheless, it is impressive.
A number of secrecy problems within the DOE will require legislative or
regulatory changes. For example, section 148 of the Atomic Energy Act 23 which
provides for Unclassified Controlled Nuclear Information (UCNI) should be
legislatively changed or eliminated. UCNI is information that would, allegedly,
"adversely affect" national security, whereas classified information would "damage"
national security. Ironically, much of the information now restricted as UCNI might
be legitimately classified; therefore, military officials should either classify it or
release it, and eliminate the "never- never land" in which lower-level bureaucrats can
easily restrict the availability of information. At a minimum, a drastic
reinterpretation in the way section 148 is applied is warranted. Additionally, the
Freedom of Information Act could be changed to eliminate or greatly restrict
exemptions and to add provisions to enhance access to electronically formatted
documents such as computer data bases.
I finish with a summary of my thoughts on secrecy. As an engineer, I believe
secrecy hobbles effective and rigorous scientific exchange. Secrecy also undermines
the credibility of the government. As an advocate, I believe secrecy poisons political
discourse. From a broader view, removing secrecy is part of the need for public
participation, which is premised on the assumption that people have a fundamental
and inalienable right to take part in decisions that affect their lives. We have heard
for many years that if certain information, including environmental information, was
disclosed it would threaten national security. I submit that national security is truly
threatened when people are asked to set aside their common sense in order to believe
their government.
