Part II

Evaluation of Regulatory Measures



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Improving the Environment: An Evaluation of DOE's Environmental Management Program Part II Evaluation of Regulatory Measures

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Improving the Environment: An Evaluation of DOE's Environmental Management Program SUBCOMMITTEE ON EVALUATION OF REGULATORY MEASURES DON CLAY (Chair), President, Don Clay Associates, Inc. ANDREW P. CAPUTO, Attorney, Natural Resources Defense Council JAMES R. CURTISS, Attorney, Winston & Strawn MARSHALL E. DRUMMOND, President, Eastern Washington University DANIEL S. MILLER, First Assistant Attorney General, Colorado Department of Law BERNARD J. REILLY, Corporate Council, DuPont Legal MARY RIVELAND, Director, Washington State Department of Ecology Staff Ray Wassel, Senior Program Officer Ruth Danoff, Project Assistant

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Improving the Environment: An Evaluation of DOE's Environmental Management Program Introduction This is the report of the Subcommittee on the Evaluation of Regulatory Measures. Biographical information on the members is provided in the appendix. The letter from Mr. Grumbly, mentioned above, indicates that this subcommittee's work should examine how the performance of the Environmental Management Program could be improved through regulatory measures, such as new statutes, revised statutes, and revised regulatory agreements. Our workshop was held on June 19–20, 1995, in Washington, D.C. The workshop agenda and list of participants are included in the appendix. We heard presentations from representatives of DOE headquarters, DOE sites, contractors at DOE sites, Environmental Protection Agency (EPA) headquarters and EPA regions, the Nuclear Regulatory Commission, state attorneys general, state environmental agencies, and others. A roundtable discussion was held after the formal presentations to explore some of the relevant issues further. The participants identified what they considered to be the most important matters to address. We used the results of the roundtable discussion as a springboard in developing a framework for this report and for identifying important issues that we might address. DOE's environmental restoration activities must be conducted pursuant to applicable environmental laws. The principal environmental laws dictating how the cleanup is to be performed at the weapons sites are the Resource Conservation and Recovery Act, as amended (RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA) (also known as Superfund), and the Atomic Energy Act of 1954, as amended. Many DOE sites are on the National Priorities List (NPL) developed

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Improving the Environment: An Evaluation of DOE's Environmental Management Program under CERCLA. The National Environmental Policy Act (NEPA) of 1970 mandates that all federal agencies and departments take into consideration the adverse effects that their actions might have on the environment. NEPA requires that agency actions be reviewed early in the planning process and that the process be open to public participation. DOE 's environmentalrestoration efforts are also subject to state laws and regulations, including those adopted under the authority of RCRA and CERCLA. All high-level radioactive waste and most transuranic waste are mixed waste, usually because of the presence of organic solvents or heavy metals, in addition to the radioactive components. The hazardous component of mixed waste is regulated under the RCRA. In 1992, Congress passed the Federal Facility Compliance Act, which amended RCRA to make federal facilities subject to the same fines and penalties as any private corporation if they violate the law. The law also requires DOE to develop plans for mixed-waste treatment, subject to approval of the states or the U.S. Environmental Protection Agency (EPA). For sites that are required to undergo CERCLA cleanup, DOE is required to enter an agreement with EPA regarding how the cleanup should be carried out. EPA has states join in these compliance agreements. Thus, the agreements are often signed by three parties: DOE, EPA, and the state where the facility is. Compliance agreements are also formed with regard to requirements under RCRA and when both CERCLA and RCRA apply. Compliance agreements must include at least a schedule for accomplishing the cleanup, arrangements for operation and maintenance of the site, and a review of the cleanup options considered and the remedy selected. Such agreements are enforceable by states against DOE facilities, and civil penalties may be imposed for failure or refusal of a facility to comply with a compliance agreement. State enforcement under CERCLA agreements occurs through citizen suits, but states have separate enforcement authorities. Compliance agreements might give additional authority from multiple statutes, and enforcement provisions vary because of the construct of the agreement and the underlying regulations. Sites that have not been placed on the NPL operate only under the regulatory jurisdiction of RCRA. A major difference between CERCLA and RCRA is that CERCLA coverage includes both hazardous and radioactive contamination, whereas RCRA and its corrective-action provisions cover only hazardous waste and the hazardous portion of mixed waste. Releases of radioactivity to the environment are regulated exclusively by DOE under the authority of the Atomic Energy Act. DOE has its own set of internal directives (DOE orders) governing radioactive-waste management and the limitations of radionuclide releases to the environment. The Atomic Energy Act gives DOE broad authority over radioactive waste with the exception of facilities for the storage and disposal of high-level radioactive waste and spent nuclear fuel, which are regulated by the Nuclear Regulatory Commission. Thus, DOE

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Improving the Environment: An Evaluation of DOE's Environmental Management Program orders are wide-ranging and include environmental protection, worker safety, project management, facility design, transportation, emergency planning, and personnel. In addition, each DOE contractor independently maintains its own sets of guidance documents and internal procedures to implement these orders. According to DOE's 1995 Baseline Environmental Management Report, the life-cycle cost estimate for DOE's Environmental Management Program ranges from $200 to $350 billion in constant 1995 dollars, with a midrange estimate of $230 billion. That included not only the $172 billion for dealing with the nuclear-weapons complex legacy, but also $24 billion for future wastes from nuclear-weapons activities and $34 billion for past and future wastes from other activities. The projected cost for treatment, storage, and disposal of waste generated by continuing defense and research activities is $19 billion. The large projected cost for support of future continuing programs indicates the value of vigorous pollution-prevention efforts to reduce costs and threats. The base-case cost estimate begins in 1995 and ends in about 2070, when environmental-management activities are projected to be substantially completed. The estimate does not include amounts expended since the program's formal inception in October 1989—about $23 billion—or costs incurred before 1989. Nor does it include costs beyond 2070 for long-term surveillance and maintenance, which are estimated at about $50–75 million per year. Those costs are assumed to continue indefinitely after a disposal site or restricted-access area is closed. DOE's Environmental Management program and regulatory measures have been assessed by a number of organizations. The appendix includes summaries of relevant documents prepared by various organizations and individuals.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program Our Approach to Evaluating Regulatory Measures We focused our deliberations on regulatory statutes, regulations, and their implementation regarding environmental remediation and waste management in DOE's Environmental Management Program. Our emphasis has been on public health. Related issues, such as exposure of workers involved in environmental cleanup, are being addressed by the Advisory Committee on External Regulation of Department of Energy Nuclear Safety. That advisory committee is an independent review panel that will recommend whether and how DOE nuclear facilities and operations might be externally regulated to protect health, safety, and the environment, to eliminate unnecessary oversight, and to reduce costs. In this report, we first discuss the principles that guided our deliberations. Next, we address regulations within DOE, multiple external regulators, land-use planning, standards for residual risk, and considerations of cost effectiveness and risk. We conclude with what we consider to be our principal recommendations. We developed the following set of principles to guide our deliberations. We believe that DOE and its regulators should develop a corresponding set. These principles are based upon input from workshop participants and our judgment. Many of the principles are discussed later in the report in the context of relevant conclusions and recommendations. Public sites, including those of DOE, and private sites should be treated similarly by regulatory measures, and expected outcomes should be the same

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Improving the Environment: An Evaluation of DOE's Environmental Management Program where the problems are similar. (However, DOE sites provide an opportunity to demonstrate new technologies that private parties might not want to attempt at private sites.) A lead regulator, whether a federal or state agency, would expedite the resolution of regulatory problems. Once the lead is established, flexibility inherent in existing regulations should be used to improve outcomes. Because sites are diverse, it would be inappropriate to develop a one-size-fitsall regulation. Because many needs compete for scarce resources, it is essential to strive for cost-effective environmental management for health, safety, and the environment. But protection of health, safety, and the environment must be the paramount consideration that drives DOE 's EM activities. Interim remedies for contaminated sites, such as land-use controls, should not be considered permanent, because residual risks can be very long-lived. However, when such remedies offer cost-effective means of protecting public health and communities are willing to maintain them, they should be pursued. It is important to continue to seek permanent remedies, but their absence is no excuse for inaction. Full dialogue among stakeholders, including state regulators, should be pursued before decision-making. Regulatory goals should be adopted on the basis of priorities set through an open, public process that focuses on protecting workers, public health, and the environment. Efforts to meet future milestones should also have this focus. Such an approach can aid in gaining stakeholder acceptance and the development of shared goals between the regulator and the regulated. Therefore, the focus should be on achieving long-term goals, not on meeting the detailed schedules of current compliance agreements. In cases where these conflicts arise and remediation is impeded, the Department should seek to renegotiate the compliance agreement. The focus should be on improved implementation of existing regulatory measures; development of new legislation should be considered only secondarily.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program Regulation of DOE's Environmental Management Program From the beginning of the Manhattan Project until after 1970, DOE and its predecessors were not subject to external regulation. Beginning in the 1970s, federal legislation waiving the federal government 's sovereign immunity from state and federal environmental laws was enacted. DOE resisted the application of hazardous-waste regulation for several years. That resistance resulted in a 1984 federal court decision (L.E.A.F. v. Hodel) rejecting DOE's contention that RCRA did not apply to its activities because it would conflict with the Atomic Energy Act. In 1987, DOE acknowledged that RCRA applied to the hazardous-waste component of mixed radioactive and hazardous wastes. In the late 1980s, DOE's operations rapidly went from having virtually no oversight to being the subject of multiple internal and external reviews, including a highly publicized criminal investigation at Rocky Flats that resulted in a plea agreement in which DOE's contractor pleaded guilty to 10 criminal counts under 2 federal environmental laws and paid an $18.5 million fine. Such intense scrutiny resulted in a dramatic change in DOE's attitude toward compliance with its own orders and with external regulations. Suddenly, DOE became overconservative, in the bureaucratic sense, in interpreting regulatory requirements. At the same time, it began to place great reliance on its contractors in determining how to comply with regulatory requirements (both externally imposed requirements and DOE orders). Combined with a lack of sufficient properly trained contract managers and the prevailing use of cost-plus contracting mechanisms (which create financial

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Improving the Environment: An Evaluation of DOE's Environmental Management Program incentives to increase costs of compliance), DOE's overconservative approach has led to substantial inefficiencies and unnecessary costs in complying with environmental-protection and nuclear-safety requirements. Also in the late 1980s, DOE shut down portions of the nuclear weapons complex until a series of safety and environmental problems could be resolved. While those facilities were shut down, the Cold War ended, and DOE decided that some of them (e.g., those at Hanford and Rocky Flats) would not be reopened. The widespread safety and environmental protection concerns at its facilities prompted DOE to re-examine its policies regarding self-regulation and its approach to external regulators (i.e., state and federal environmental regulators). DOE AS AN EXTERNALLY REGULATED ENTITY We found that DOE has experienced considerable difficulty in making the transition from operation in an environment in which it was largely self-regulated to a much more open atmosphere with substantial external oversight. DOE has made substantial progress in becoming more open, but its success in adjusting to external regulation has been uneven, in part because of the events that surrounded the first serious efforts to impose external regulatory requirements on DOE, discussed above. To its credit, senior management of DOE has recognized the shortcomings in its contracting practices. It has hired many federal employees to provide better contract oversight, and it is rebidding many of its contracts to emphasize cost-effective compliance. As noted below, DOE is also in the process of promulgating its orders as rules and in so doing has established a decision-making process for determining the necessary and sufficient requirements that must be established to comply with the new regulations case by case. Those reforms should help to reduce DOE's costs of environmental protection, worker-safety, and nuclear-safety compliance. DOE's progress in implementing the reforms should be monitored to ensure that it achieves its goals. However, many state and federal regulators have observed that DOE seems not to know how to “work with” regulators. In particular, outside regulators have repeatedly expressed concerns over DOE's failure to communicate with them in a timely manner regarding compliance matters. That failure inhibits regulators from assisting DOE in complying with regulatory requirements in a common-sense, low-cost fashion, for example, by pointing out overconservative regulatory interpretations. Failure to communicate in a timely fashion might also delay DOE's compliance with regulatory requirements in particular situations. SELF-REGULATION We think that the weaknesses of a system of self-regulation are plain: there is an inherent tension (many would say a conflict of interest) between

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Improving the Environment: An Evaluation of DOE's Environmental Management Program meeting “primary mission” requirements (e.g., rapid buildup of nuclear weapons arsenal) and ensuring adequate protection of worker-safety, nuclearsafety, and environmental concerns. Any regulatory system must rely in part on voluntary efforts to comply, but external enforcement is also necessary to ensure a consistently high compliance. Because of that inherent tension, regulatory systems in which the entity responsible for compliance is also responsible for enforcing compliance lack credibility. Given the magnitude of the risks associated with manufacturing and maintaining the nuclear weapons stockpile, effective and credible regulatory programs are necessary. We agree that DOE's self-regulation of its nuclear-related activities should be eliminated. Indeed, DOE has established the Advisory Committee on External Regulation of Department of Energy Nuclear Safety to provide advice specifically on how nuclear-related activities at DOE facilities might be regulated. DOE ORDERS In addition to the general problems of self-regulation, DOE and others have identified a number of problems with the particular system of “DOE orders” that DOE and its predecessors had developed to implement the requirements of the Atomic Energy Act. The orders were not developed in a coordinated manner and were never promulgated as regulations under the Administrative Procedures Act (APA). They often failed to establish clear requirements, and there was no administrative process for determining how each order should be applied to a particular activity. Consequently, many of the orders were essentially unenforceable and generally were not enforced. Recently, DOE began reviewing its orders, rewriting them, and promulgating them under the APA to address those concerns. We support DOE's process of reviewing its orders and converting them to rules that have a clear legal foundation; this should increase the clarity of obligations placed on contractors and provide a clear mechanism for enforcing obligations. However, conversion of DOE orders to promulgated rules is not an adequate solution to the problems created by self-regulation. The reason is that the purpose of the orders (and of the new regulations) is to increase contractors' accountability to DOE. They do not (and cannot) address the lack of DOE accountability to the public and affected communities by self-regulation. We also support elimination of orders that are redundant with outside authorities, obsolete because of their focus on the past production mission, or overprescriptive. In addition, DOE should hold its contractors responsible for conducting similar reviews of internal procedures intended to implement DOE orders so as to streamline the entire system.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program MULTIPLE REGULATORS As noted above, we agree that DOE's self-regulation of its nuclear-related activities should be eliminated, it is necessary to make a transition to external regulation, and we are not making specific recommendations regarding who should assume the responsibility for such external regulation. However, we note that the manner in which external environmental regulation has been implemented has contributed to the creation of multiple regulators and overlapping regulatory requirements for some activities, including management of mixed radioactive and hazardous wastes. If done poorly, moving to external regulation of nuclear safety could complicate this situation. There is some degree of communication between entities with overlapping responsibilities (DOE and the Defense Nuclear Safety Board on the one hand, and state and EPA hazardous-waste regulators on the other), but no formal mechanisms have been developed to coordinate implementation of these regulatory systems. In providing for external regulation of DOE nuclear safety, care should be taken to ensure coordination with hazardous-waste and related regulatory programs, particularly with respect to mixed waste. In our view, external regulation would give public credibility to DOE and hence facilitate efforts to move forward with the EM mission. However, the current regulatory system is a confusing patchwork assembled, at least in part, with weapons production in mind. A number of potential problems are caused when the authorities of multiple regulators, such as states and EPA (and sometimes DOE), overlap for cleanup of the same site or operable unit. For example: When there is lack of agreement among multiple regulators, regulatory compliance is slowed to attain a consistent decision. Additional resources are expended in coordination. The presence of different objectives of multiple regulations inhibits priority-setting. CURRENT ACTIVITIES Several isolated efforts are under way to address the problem of multiple regulators. Such efforts include: An effort sponsored by EPA and DOE to increase consistency of cleanups performed under RCRA and CERCLA and to provide better integration of the two statutes. State agreements with EPA in dividing the workload at the Hanford facility to strive for a single regulator on one project. DOE review of orders from headquarters. The Hazardous Waste Identification Rule, proposed by EPA, which is

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Improving the Environment: An Evaluation of DOE's Environmental Management Program Cost Effectiveness and Risk Considerations Resources are scarce and contested, so advocated solutions should be well justified regarding cost and should be related to risk. It is most useful to consider cost effectiveness and risk at the macroscopic level to identify points of gross disparity among site-cleanup efforts. Such a consideration would be one of several tools in making decisions. Other tools are considerations of land use and cultural, social, and economic factors. The benefits of a remedy that is selected as protective, practical within time and technical grounds, and acceptable to the affected community should bear a reasonable relation to its cost. It would be very time- and resource-consuming to justify cost and risk-benefit relationship in an elaborate, quantitative way. Given the many assumptions required for such an analysis and the resulting uncertainties, it would be infeasible to establish that a particular course of action is the least-cost alternative.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program Overall Findings and Recommendations STREAMLINING THE REGULATORY PROCESS In most instances, difficulties arising from the overlap of regulations are due not to the statutes as written, but to differences in how the standards are implemented and in the numerous parties involved in their application. With the specific exceptions noted in this report, legislative changes are not necessary for DOE to move forward with an effective, efficient cleanup. The department should focus its attention on the administrative and organizational changes noted in this report, which are likely to pay off in a better program. Regulators need one of them to be in the lead and to be a spokesperson and need to rely on flexibility in the current regulations. However, streamlining efforts must be handled carefully to avoid cutting people out of the process. Streamlining should be used not as a means of vitiating regulatory measures, but as a means of facilitating their implementation and compliance. Streamlining compliance agreements is especially important. In some cases, such agreements tend to be too prescriptive. Milestones are set at every step and add too much cost for the incremental environmental value. A rigorous schedule makes it difficult to accommodate budget realities. However, in the absence of milestones or with excessive flexibility (e.g., 5 years or more) for meeting them, it is possible that no real progress would be made. Milestones in cleanup agreements should focus on major outcomes or results and allow for flexibility in reaching them. The milestones should be performance-based and adjustable where appropriate.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program RESPONSIBLE STEWARDSHIP Responsible stewardship, as discussed above, is a reasonable way to address the cleanup problem when permanent solutions are unavailable. It is the antithesis of delay, in that it promotes progress instead of inaction. Responsible stewardship requires the use of mid-term remedies so that progress can be made in protecting human health and the environment now and in the future. It deals with waste in relatively short periods, say 20 years. After such a period, society can decide what to do with site cleanup for the next 20 years. However, the benefits of actions considered over the short term should not obscure the benefits of long-term solutions. If many 20-year periods are considered together, the costs of taking only the short-term view could be huge. As mid-term remedies are put into place, it is important for DOE to continue developing permanent solutions to problems that resulted from past mistakes. In addition, responsible stewardship should promote waste-minimization and waste-reduction efforts to avoid repeating mistakes with newly generated waste.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program References Blush, Steven M. and Thomas H. Heitman. 1995 Train Wreck Along the River of Money: An Evaluation of the Hanford Cleanup, A Report for the U.S. Senate Committee on Energy and Natural Resources Washington, D.C. DOE (U.S. Department of Energy). 1995a. Closing the Circle on the Splitting of the Atom: The Environmental Legacy of Nuclear Weapons Production in the United States and What the Department of Energy is Doing About It. The U.S. Department of Energy, Office of Environmental Management, Office of Strategic Planning and Analysis (EM-4), Washington, D.C. DOE (U.S. Department of Energy). 1995b. Estimating the Cold War Mortgage: The 1995 Baseline Environmental Management Report. Volume I, March 1995. U.S. Department of Energy, Office of Environmental Management, Washington, D.C. GAO (U.S. General Accounting Office). 1994a. Federal Facilities: Agencies Slow to Define the Scope and Cost of Hazardous Waste Site Cleanups. Report to the Subcommittee on Investigations and Oversight, Committee on Public Works and Transportation, House of Representatives. GAO/RCED-94-73. April. GAO (U.S. General Accounting Office). 1994b. Nuclear Cleanup: Completion of Standards and Effectiveness of Land Use Planning are Uncertain. Report to the Chairman, Committee on Governmental Affairs, U.S. Senate. GAO/RCED-94–144. August. NRC (National Research Council). 1994. Ranking Hazardous-Waste Sites for Remedial Action. National Academy Press. Washington, D.C. NRC (National Research Council). 1995. Technical Bases for Yucca Mountain Standards. National Academy Press. Washington, D.C. OTA (U.S. Congress, Office of Technology Assessment). 1991. Complex Cleanup: The Environmental Legacy of Nuclear Weapons Production OTA-O484. U.S. Government Printing Office, Washington, D.C.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program Speaker's Task Force on Nuclear Cleanup and Tritium Production. 1995. Report to Speaker Newt Gingrich: “The Top 20 Ways to Turbocharge DOE Cleanup.” Office of Congressman Richard Hastings, U.S. House of Representatives . August 4.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program Appendix VARIOUS PERSPECTIVES ON DOE'S ENVIRONMENTAL MANAGEMENT PROGRAM This appendix was prepared by National Research Council staff to summarize relevant documents prepared by various organizations and individuals. The summaries focus on the regulatory aspects of the reports and are not intended to be comprehensive. The subcommittee has made no attempt to identify the reports with which it agrees or disagrees. Blueprint for Action and Cost Control at Hanford (May 3, 1995) summarizes the results of a meeting held on April 26–27, 1995, by the senior managers of DOE (headquarters and Richland), EPA (headquarters and Region 10), the Washington state Department of Ecology, and the major contractors (Westinghouse and Bechtel). The meeting addressed how to manage the cleanup of the Hanford site. Participants discussed ways to cut costs and increase the efficiency of regulatory measures. Five major kinds of action for the redirection of the Hanford cleanup were identified: Using a project-management approach that rewards action, promotes accountability, and controls costs. This could be accomplished by breaking up large projects into smaller discrete packages, tightening the chain of command, moving to performance-based incentives, and making project managers responsible for scope, safety, cost, and schedules.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program Reducing costs and increasing competition. Site contractors would use performance-based, fixed-price, and other incentives to control costs and maximize performance. Tracking and reporting cost savings. Independent reviews would be conducted to assess cost savings, and regulators would be involved in developing the scope of the task and in the assessment of the findings. Establishing target end points for cleanup and ensuring sitewide integration. This would involve using future land use as a tool for directing cleanup. Streamlining the regulatory process. The state of Washington and EPA committed to work together to divide the Hanford workload and to strive for a single regulator to make decisions on any given project. Regulators and DOE agreed to an early review of projects to ensure agreement on scope and direction. They will consider ways to avoid building costly new storage or disposal facilities and to defer construction of a waste-receiving and waste-processing facility. Regulators and DOE will jointly review regulations that apply to the management of mixed wastes. Regulators agreed to consider consolidation of documentation of overlapping regulation under a one-document approach. DOE, EPA, and the state agreed to launch a task force to examine specific regulations that apply to Hanford. DOE agreed to reduce its orders, both from headquarters and from Richland. There was agreement to consider acceptable reuse of facilities and reduce inventory of excess plant equipment and materials. Train Wreck Along the River of Money—An Evaluation of the Hanford Cleanup was written at the request of the US Senate Committee on Energy and Natural Resources (Blush and Heitman, 1995) and focuses on the cleanup of the Hanford Nuclear Reservation in Washington state. The report presents criticisms that include the lack of regulatory balance (causing action without regard to cost or safety), compliance agreements that are more like partnerships, and lack of reasonable consideration of future land-use. The report recommends an evaluation of how DOE conducts cleanup activities, and it identifies several major changes in the overall regulatory process that are necessary to accomplish cleanup goals: Reform the legal and regulatory framework for cleanup. Resolve the question of the level of cleanup that will be required. Establish a negotiated level of funding based primarily on risk. Require DOE to undertake and maintain an integrated risk assessment as the primary basis for budgeting. Require DOE to produce and periodically update a long-range plan for cleanup that integrates all aspects of waste management, facility cleanup, and environmental restoration.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program The US Office of Technology Assessment (OTA) report, Complex Cleanup: The Environmental Legacy of Nuclear Weapons Production (OTA, 1991) addresses the public-health effects of contamination, policy incentives, priority-setting, and risk and health assessment regarding DOE sites. The report faults the lack of regulatory standards that do not address past releases from the waste facilities and the contamination of soils and sediments both on site and off site. It also finds DOE's authority to enforce its own standards governing off-site radiation doses to present a serious problem. OTA believes that the prospects for cleanup during the next several decades are relatively poor, and the report recommends the following policy incentives for improving DOE cleanup: Increase congressional oversight of restoration to improve performance. Increase public access to information. Strengthen site-monitoring programs. Improve the process for assessing potential health impacts of waste, evaluate the possibility of off-site health effects, and develop health-based priorities. Establish a new office to direct risk, health, and dose assessments. Establish a new program for off-site assessments. Establish an independent advisory board to guide exposure assessments and evaluations. Encourage more public and scientific participation in setting cleanup policy. Establish advisory boards with technical staff. Establish a national board to coordinate site-specific boards. Require DOE and others to consult with boards before key decisions. Provide outside regulation of DOE radioactive-waste management. Establish a national commission with regulatory and enforcement authority with respect to radioactive-waste management. A statement given before the US Senate Committee on Energy and Natural Resources on March 22, 1995, contains Thomas Grumbly's vision for DOE's Environmental Management Program. He explained, in broad terms, that good progress has been made at the Hanford facility. He also gave a general outline of possible congressional action related to waste cleanup. The regulatory aspects of those suggestions were as follows: Establish realistic timelines for goals. Limit enforceable milestones to 3-year goals. Completion of goals requiring longer periods would not be enforceable. Allow for all penalties for noncompliance to be used to fund further risk reduction.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program Alter Superfund to codify land-use considerations and universal standards. Allow site-based budgeting and a 3-year budgeting cycle. A state taskforce report, Environmental Obligations at Federal Facilities and an Analysis of the Environmental Management Program of the Department of Energy (June 2, 1995), finds many problems with the relationship between DOE and states. (Authors of the report include representatives of the states of Colorado, Washington, and Ohio.) It indicates that DOE has many regulatory failings that must be corrected, including lack of direction, insufficiency of contractor oversight, poor contracting mechanisms, and overreliance on weapons contractors with little environmental experience. The report finds that many regulations create overlaps between federal agencies and the states and that DOE is often rigid in its interpretation of regulations to the point where nothing is accomplished. The interested states can be more flexible and creative in their approach to waste cleanup than federal agencies. The report 's suggested remedies include allowing qualified states to oversee DOE cleanup and clarifying the role of anticipated future landuse in priority-setting. Other proposed reforms are the following Provide for independent audits of DOE's environmental programs. Simplify and clarify regulations. Eliminate overlaps that create redundant oversight of cleanup. Allow states to exercise EPA's CERCLA authority or implement their own proven cleanup programs. Allow states to be sole regulators of cleanup at federal facilities. Clarify applicability of the Atomic Energy Act to waste management. Consider including enforceable deliverables in CERCLA agreements if all agree. Eliminate need for duplicate studies and reviews before cleanup. Clarify roles that anticipated future land uses play in remedy selection. The report of the Environmental and Occupational/Public Health Standards Steering Group entitled CERCLA Reauthorization: Opportunities for Improving Remedy Selection and Resource Allocation (October 22, 1993) focuses on the improvement of CERCLA without completely rewriting the law by examining risk assessment, land-use planning, and ARARs. (Thirteen DOE laboratory directors chartered the steering group.) The group finds that the requirement of Superfund to comply with ARARs leads to excessive costs, which in turn discourages future landuse. The group sees the following as methods of improving site remediation Use local authorities and citizens in the early stages of risk assessment. Focus on risk reduction rather than residual risk. Use best estimates and probability distributions of critical data in risk assessment rather than the 95th percentile.

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Improving the Environment: An Evaluation of DOE's Environmental Management Program Take realistic land-use assumptions and projections into account. Remove the “relevant and appropriate” section of the ARARs. The General Accounting Office (GAO) report Federal Facilities: Agencies Slow to Define the Scope and Cost of Hazardous Waste Site Cleanups (GAO, 1994a) suggests the following amendments to CERCLA Require agencies to submit plans for cleanup to EPA. Require agencies to report annually to EPA on progress. Require agencies to develop and update cost estimates. Require EPA to report annually to Congress on agencies' progress. The GAO report Nuclear Cleanup: Completion of Standards and Effectiveness of Land Use Planning Are Uncertainties (GAO, 1994b) focuses on the idea of land-use planning as related to radioactive-waste and hazardous-waste disposal and the problem of national standards for waste sites. It indicates that comprehensive cleanup standards are needed. In addition, EPA needs to provide more detailed 5-year reviews of sites with residual contamination. A report to Speaker Newt Gingrich by the Speaker's Task Force on Nuclear Cleanup and Tritium Production (1995) provides The Top 20 Ways to Turbocharge DOE Cleanup Delegate regulatory authority over CERCLA to the states. Streamline or eliminate Superfund's ARARs. Consider final land and resource use before selecting remedies. Use risk assessment and cost-benefit analysis. Include various RCRA reforms in Superfund reauthorization. Amend RCRA's definition of allowable storage. Have RCRA consider reform of “mixture,” “derived-from,” and “contained-in” rules. Have RCRA consider reforming the Atomic Energy Act Exclusion. Integrate NEPA with other state and federal actions. Encourage a streamlined technology-permitting process. Streamline enforcement of health and safety regulations at sites. Grant broad decision-making authority to local DOE site managers. Streamline and localize the DOE order process. Reform federal indemnification procedures. Expedite opening of the Waste Isolation Pilot Project. Eliminate statutory metric-system requirements at sites. Leverage federal resources by allowing long-term privatization under incentive-based contracts. Ensure stable but flexible budgets for cleanup sites. Pass legislation to streamline the procurement process. Include the above provisions on a test or demonstration basis at one or more sites.

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