What FUSRAP Is and Is Not

For many years, the Department of Energy has misinformed the public about the origin and true nature of the FUSRAP. In order to uncover the truth about this program, F.A.C.T.S.'s attorney pursued in court a 1997 FOIA request made to the Department of Energy.

Contrary to numerous oral and written statements by many DOE officials, Army Corps staff, elected representatives, and media outlets, the FUSRAP (Formerly Utilized Sites Remedial Action Program) is not a program or responsibility directly created by an act of Congress, i.e. "mandated by Congress," as are, for example, NEPA or UMTRCA. Instead it is an in-house DOE project started in the 1970s to deal on an ad hoc basis with liabilities incurred (often illegally) by DOE's predecessor agencies, the Atomic Energy Commission and the Manhattan Engineer District. FUSRAP exists only to the extent that Congress makes an annual appropriation for it; the meager appropriations have meant a very slow pace of cleanup.

In FY1998 the 105th Congress transferred funding for the implementation of FUSRAP projects to the U.S. Army's Corps of Engineers, despite the facts that DOE is legally liable for these sites and that the Nuclear Regulatory Commission is the federal agency with the statutory responsibility under UMTRCA and expertise to make the cleanup decisions at these sites.

In its FY1999 FUSRAP appropriation, Congress acknowledged DOE's legal responsibility for the contamination present at these sites and instructed Army Corps to perform the FUSRAP cleanups under the authority of CERCLA, noting that "except as stated herein, these provisions do not alter, curtail or limit the authorities, functions or responsibilities of other agencies under the Atomic Energy Act (42 U.S.C. 2011 et seq)."

According to CERCLA § 121(d)(2)(A): “With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if – . . . any promulgated standard, requirement, criteria, or limitation under a State environmental . . . law that is more stringent than any Federal standard, requirement, criteria, or limitation . . . and that has been identified to the President by the State in a timely manner, is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under the circumstances of the release or threatened release of such hazardous substance or pollutant or contaminant, the remedial action selected under section 104 or secured under section 106 shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation . . . ”

Thus, when specific promulgated cleanup guidance is identified by a state in a timely manner as ARARs for a FUSRAP cleanup proposal, the Army Corps is obligated by CERCLA to satisy those ARARs. See DEC attorney J Eckls reply to J Rauch for a detailed discussion of this matter. Since the SARA amendments of 1986, only states (not a state's citizens) have this right to identify and request specific cleanup ARARs.

When states have not intervened in Army Corps FUSRAP actions on behalf of citizens, the CERCLA remediations implemented by the Army Corps have not followed the requirements of the established AEA/state regulatory regime and so, not surprisingly, the resulting 'cleanups' have been seriously deficient.