Legal questions about the Rocky Flats Stewardship Council

In Democracy, Rocky Flats on June 7, 2010 at 6:36 am

As the only government-funded local body with any sort of oversight role re. issues of concern to the public about conditions at the site of the now defunct Rocky Flats nuclear bomb plant, the Rocky Flats Stewardship Council has a unique role. In questioning whether it conforms with the Federal Advisory Committee Act, I brought out into the open that it violates not this law but another one.

In April 2010 I asked the Department of Energy’s legal office whether the DOE-funded Rocky Flats Stewardship Council (RFSC) was in violation of the Federal Advisory Committee Act (FACA). Since it came into existence in 2005 the RFSC has evidently been advising two federal agencies, the DOE ‘s Legacy Management (LM) office at Rocky Flats and the U.S. Fish & Wildlife Service (FWS). LM is responsible for ongoing maintenance on about 1300 acres at the center of the site of the now defiunct Rocky Flats nuclear bomb plant, while FWS  manages the Rocky Flats National Wildlife Refuge that sprawls over about seven square miles of land surrounding the LM portion. In advising these agencies RFSC fails to conform to the FACA requirement that its membership be “fairly balanced in terms of the points of view represented,” because it was set up in a way that gives a permanent majority of its seats to one stakeholder group, namely, local governments.

I received a letter dated May 12, 2010, from DOE attorney Ms. Susan Beard saying that the RFSC was created not as an advisory body but as a “Local Stakeholder Organization,” and that it therefore was not subject to FACA. But this very interesting letter showed that the RFSC was not acting in accord with the LSO rules under which it was incorporated. Thus, in raising a question about violation of one law, I brought into the open the fact that the RFSC was violating another law. Below is my May 30, 2010, letter of response to Ms. Beard. It refers to the range of issues that surfaced in this situation:

Dear Ms. Beard:

I am in receipt of your letter dated May 12, 2010, responding to my April 1, 2010, memorandum to Mr. Sean Lev of DOE’s Office of General Counsel raising the question whether the Rocky Flats Stewardship Council (RFSC) violates the Federal Advisory Committee Act (FACA).

Your letter says in sum that the RFSC is not subject to FACA requirements because it is not an advisory body but is a “Local Stakeholder Organization” (LSO). In 2004 DOE’s LM office, Senator Wayne Allard’s office, the staff and members of the Rocky Flats Coalition of Local Governments and perhaps others crafted a new kind of organization, the LSO. It would give each of these parties what they wanted without the impediment of the “fairly balanced” representation required by FACA. The LSO was codified in law by means of the all-too-common maneuver of inserting a few lines (Section 3118) into the text of a much larger bill, Public Law 108-375, the massive Defense Appropriations Act for FY 2005, hiding the fact that a new kind of entity was being created while making any questioning of the LSO tantamount to questioning the national defense budget. I had hoped that DOE’s Office of General Counsel would annul this legal sleight of hand and require that the RFSC conform to FACA. Instead your letter reinforces the anti-democratic bias that has hampered DOE’s relations with the concerned public at its weapons sites across the country.

It has seemed to me and to numerous others in the local community that the RFSC has functioned over the years largely as a vehicle for expression of the opinion of its staff and restricted membership not only to DOE, which foots the bill, and to the US Fish & Wildlife Service but also to the public and various other entities, including Congress. The opening paragraph of your letter specifies a very different, very modest role for the RFSC, one that excludes expression of opinion or giving of advice. This evidently is no small matter, for the DOE Office of General Counsel now reiterates (repeats again) to the Rocky Flats LM office that it must “ensure that its continued relationship with RFSC is in accordance with federal law.” Your letter does not say in exactly what ways federal law has been or may have been violated.

Your letter says your office has advised the RFSC on the necessity of handling information received from or intended for the public “without alteration or discretion” or “without edit or filter” (phraseology used three times in your very brief letter). A local individual who has followed the Rocky Flats issue closely for years urged me to bring to your attention a particularly egregious situation that involved myself in which the office of the RFSC went well beyond editing and filtering to policing information. On January 10, 2010, I had published an op-ed calling on a government agency to do a kind of sampling they had never done at Rocky Flats, namely, collect discrete samples of respirable dust from surface soil and analyze each sample for its plutonium content. Three days after publication of this piece the Executive Director of the RFSC sent a dismissive memo about my op-ed not to me but to Colorado Congressional staff with copies to the RFSC. I received the memo only after requesting it. Attached please find my op-ed, the memo and my eventual reply (first three entries on line at http://www.rmpjc.org/about+Pu+in+dust+at+Rocky+Flats+). You can judge for yourself how this befits the role of the RFSC.

I had not mentioned this situation in previous communications with your office because I was under the impression that if the RFSC had no FACA obligations its staff and members were free to express the views and biases of their self-restricted membership. Now I learn that DOE expects RFSC not to take positions and to handle public information “without edit or filter.”

I had thought that relations between the public and the RFSC could be improved if RFSC had to meet FACA’s requirement of “fairly balanced” representation. The response of your office is to seek improvement along two other lines, one, by having LM Rocky Flats “ensure that its continued relationship with RFSC is in accordance with federal law,” though precisely what this means is not clear. More specific, and undoubtedly related, is your directive that the RFSC follow a practice of communication with the public that is “without edit or filter.” Taking these steps, your letter concludes, will “ensure the open communication between stakeholders, DOE and the LSO.” These words are hopeful but not necessarily helpful. How far can they go in the direction of fostering trust between the full range of the affected public and either DOE or the RFSC?

My original query appealed to the democratic principles of FACA to improve the RFSC. Your office sidesteps democratic participation in favor of the less tried and clearly less democratic mode of the LSO. I believe your office fails to go to the heart of my concern. What recourse do I have? Is there any avenue of appeal?

Yours truly,

LeRoy Moore, Ph.D.


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