Because all activities supporting the nuclear defense program are highly classified to protect national security Congress included a provision in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that requires the DOD to withhold information and records about Special Nuclear Material at its Superfund sites. This requirement creates a unique set of problems for the DOD; Federal, State, and Local regulators when trying to address radioactive contamination that is the result of the nuclear weapons program and needlessly endangers the public and recipient of the property.
This exemption pertaining to Special Nuclear Material was included in the George Air Force Base Federal Facility Agreement – 21 September 1990.
The Air Force acknowledged that it routinely withheld records about buried radioactive waste from regulators, contractors, and the public. Buried Radioactive Weapons Maintenance Waste – Air Force Real Property Agency (AFRPA) – 8 May 2003
(j) National security
(1) Site-specific Presidential orders
The President may issue such orders regarding response actions at any specified site or facility of the Department of Energy or the Department of Defense as may be necessary to protect the national security interests of the United States at that site or facility. Such orders may include, where necessary to protect such interests, an exemption from any requirement contained in this subchapter or under title III of the Superfund Amendments and Reauthorization Act of 1986 [42 U.S.C. 11001 et seq.] with respect to the site or facility concerned. The President shall notify the Congress within 30 days of the issuance of an order under this paragraph providing for any such exemption. Such notification shall include a statement of the reasons for the granting of the exemption. An exemption under this paragraph shall be for a specified period which may not exceed one year. Additional exemptions may be granted, each upon the President’s issuance of a new order under this paragraph for the site or facility concerned. Each such additional exemption shall be for a specified period which may not exceed one year. It is the intention of the Congress that whenever an exemption is issued under this paragraph the response action shall proceed as expeditiously as practicable. The Congress shall be notified periodically of the progress of any response action with respect to which an exemption has been issued under this paragraph. No exemption shall be granted under this paragraph due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation.
(2) Classified information
Notwithstanding any other provision of law, all requirements of the Atomic Energy Act [42 U.S.C. 2011 et seq.] and all Executive orders concerning the handling of restricted data and national security information, including “need to know” requirements, shall be applicable to any grant of access to classified information under the provisions of this chapter or under title III of the Superfund Amendments and Reauthorization Act of 1986 [42 U.S.C. 11001 et seq.].
Classified for National Security Under Law or Executive Order
“Restricted Data” (RD)
The Atomic Energy Act defines “Restricted Data” as all data concerning
- Design, Manufacture, or Utilization of Atomic Weapons
- Production of Special Nuclear Material
- Use of Special Nuclear Material in the Production of Energy
“Formerly Restricted Data” (FRD)
Classified information that has been removed from the Restricted Data category after DOE and DOD jointly determine that it
- relates primarily to the military utilization of atomic weapons and
- can be adequately safeguarded in a manner similar to NSI
Examples of Formerly Restricted Data
- Stockpile quantities
- Weapons safety & storage