5

Stewardship Activities

Stewardship activities comprise the third of the three sets of measures used in long-term institutional management. This chapter addresses, first, the activities that encompass stewardship, then the constraints and limitations for its application, the characteristics necessary for a viable stewardship system, and, finally, future directions for improving stewardship, including research and development needs.

Stewardship in the broadest sense includes all of the activities that will be required to manage the potentially harmful contamination left on site after cessation of remediation efforts. Some stewardship activities have been considered in Chapter 4, specifically measures to maintain contaminant isolation and measures to monitor the migration and attenuation or evolution of residual contaminants. Other stewardship activities that will be considered in this chapter include:

  • institutional controls (generally, use and access restrictions);

  • conducting oversight and, if necessary, enforcement;

  • gathering, storing, and retrieving informationabout residual contaminants and conditions on site, as well as about changing off-site conditions that may affect or be affected by residual contaminants;

  • disseminating information about the site and related use restrictions;

  • periodically reevaluating how well the total protective system is working;

  • evaluating new technological options to reduce or eliminate residual contaminants or to monitor and prevent migration of isolated contaminants; and

  • supporting research and development aimed at improving basic understanding of both the physical and sociopolitical character of site environments and the fate, transport, and effects of residual site contaminants.

Ideally, most of these activities would begin when contamination of a site, either purposefully or accidentally, is first identified. Consequently, many of the activities would have developed to some degree of maturity prior to the time that remediation of the site is determined to be complete.

Stewardship activities entail ongoing, periodic if not continuous, actions by people. These people may be representatives of federal, state, or local governmental agencies, Native American groups, or private businesses and other non-governmental organizations; they also may be individual landowners, tenants, neighbors, or other concerned private citizens. Issues with stewardship include not only what will be done, but how and when it will be accomplished, and by whom. For this reason, in the following two chapters (Chapter 6 and Chapter 7) we delve more



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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites 5 Stewardship Activities Stewardship activities comprise the third of the three sets of measures used in long-term institutional management. This chapter addresses, first, the activities that encompass stewardship, then the constraints and limitations for its application, the characteristics necessary for a viable stewardship system, and, finally, future directions for improving stewardship, including research and development needs. Stewardship in the broadest sense includes all of the activities that will be required to manage the potentially harmful contamination left on site after cessation of remediation efforts. Some stewardship activities have been considered in Chapter 4, specifically measures to maintain contaminant isolation and measures to monitor the migration and attenuation or evolution of residual contaminants. Other stewardship activities that will be considered in this chapter include: institutional controls (generally, use and access restrictions); conducting oversight and, if necessary, enforcement; gathering, storing, and retrieving informationabout residual contaminants and conditions on site, as well as about changing off-site conditions that may affect or be affected by residual contaminants; disseminating information about the site and related use restrictions; periodically reevaluating how well the total protective system is working; evaluating new technological options to reduce or eliminate residual contaminants or to monitor and prevent migration of isolated contaminants; and supporting research and development aimed at improving basic understanding of both the physical and sociopolitical character of site environments and the fate, transport, and effects of residual site contaminants. Ideally, most of these activities would begin when contamination of a site, either purposefully or accidentally, is first identified. Consequently, many of the activities would have developed to some degree of maturity prior to the time that remediation of the site is determined to be complete. Stewardship activities entail ongoing, periodic if not continuous, actions by people. These people may be representatives of federal, state, or local governmental agencies, Native American groups, or private businesses and other non-governmental organizations; they also may be individual landowners, tenants, neighbors, or other concerned private citizens. Issues with stewardship include not only what will be done, but how and when it will be accomplished, and by whom. For this reason, in the following two chapters (Chapter 6 and Chapter 7) we delve more

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites deeply into contextual factors and institutional as well as technical capabilities and limitations. As Chapter 7 will note, while activities are the most visible component of stewardship, they rest upon legal, financial, and organizational structures and social and political factors that must work well for these activities to be conducted as expected. In the present chapter, we focus on the stewardship activities themselves. COMPONENTS OF A COMPREHENSIVE STEWARDSHIP PROGRAM An adequate, comprehensive stewardship program for a residually contaminated site (including land, groundwater, surface water, and facilities) should include most, if not all, of the activities listed above. These activities should be conducted for as long as the residual contaminants remain potentially hazardous. Each activity is described below in general terms that set forth what ideally should happen with long-term stewardship. Short-term activities (e.g., supplying bottled water when well water is contaminated) are not discussed here, because they would ordinarily be used only as interim safeguards, not as part of an extended plan for managing a residually contaminated site. Institutional Controls The subset of stewardship measures known as institutional controls consists mainly of restrictions on land use. They also include the legal means to obtain access to a site that has been transferred from the U.S. Department of Energy (DOE) to another entity for monitoring and follow-up remediation (e.g., through the affirmative easements mentioned in the next section of this chapter). However, institutional controls commonly are equated with use restrictions, perhaps because use restrictions can figure so importantly in the beneficial reuse of residually contaminated sites. Use restrictions—including legal restrictions imposed through easements, covenants, zoning, or permit requirements as well as physical restrictions such as fences, signs, and guards—are a basic component of stewardship. They should be in place in every case where a site is not considered safe for unrestricted use, or where contamination has migrated off site, affecting resources such as water and soil and necessitating restrictions on their use. The extensiveness and intensity of implementation of the use restrictions should directly correlate with the severity of the risk to potential users of the site. In other words, use restrictions should meet agreed-upon objective criteria of what is needed to reduce the prospective risk to human health, safety, and the environment to an acceptable level. The site's condition should be carefully considered in selecting use restrictions. The rationale for not removing contaminants from a site, thus requiring use restrictions, should be clearly demonstrated. The use restrictions should be specified in detail, with the input of both the people having authority to implement and enforce them and the people (e.g., the surrounding community) most likely to be inadvertently exposed or to otherwise have an interest in how the site is used. However, because some residually contaminated sites will remain hazardous far into the future, the impossibility of involving all such people also should be recognized. As discussed later in this chapter, even the most carefully crafted use restrictions should not be relied upon to remain in effect over time. For these reasons, remedies that rely on use restrictions should include “reopener clauses” triggered by, for example, unanticipated and unacceptable changes over time in use or other feedback from a monitoring program or members of the public, improvements in technological capability to fully remediate the site, or changes in regulatory issues concerning exposure of hazardous and radioactive substances to the public and the environment. In addition, as suggested later in this report, efforts should be made to assure that external groups and interested citizens retain rights of oversight and influence over the organization or organizations bearing primary responsibility for the site. Because of their importance to stewardship, institutional controls are described more fully later in this chapter. Conducting Oversight and Enforcement Oversight and enforcement are safeguards to ensure that the stewardship activities are carried out effectively and in a timely fashion. Oversight and enforcement should be conducted by an entity or entities with the power to

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites ensure that these activities are in fact being accomplished, and to impose sanctions or otherwise rectify the situation if they are not. Oversight and enforcement should be tailored to the specifics of the site. The frequency and extensiveness of scrutiny should depend upon the risk associated with failure to conduct one or more of the above activities effectively. Oversight and enforcement mechanisms also should take into account the history and nature of relevant governing authorities, using—and upgrading as necessary—public or private institutions with good track records of responsible stewardship. Oversight and enforcement should factor in complex local land ownership histories and patterns. Nevertheless, in each case oversight and enforcement should be conducted dispassionately and consistently, and mechanisms should be fully integrated into federal, tribal, state, local, and private regulatory systems. Gathering, Storing, and Retrieving Information Information management includes the gathering, storing, and, importantly, retrieving of relevant site information when it is needed. At a minimum, the information to be managed will need to be informative about the nature, extent, and duration of risks from residual contamination (including hazard characterization or suspected health effects and exposure pathways), contaminant reduction and isolation efforts on the site, monitoring data associated with these efforts, use restrictions in place, and information about the entities responsible for implementing, overseeing, enforcing, and modifying the site's long-term management plan. As discussed further below, experience shows that paper records are easily lost in archives, and electronic data storage media are now changing over periods even shorter than a decade (ICF Kaiser, 1998; Tangley, 1998). Disseminating Information Successful dissemination of the information discussed above is a necessary condition for oversight and enforcement, as well as for other purposes. Information should be directed to the people and organizations who have a need to know because (1) they are responsible for implementing or enforcing the site's institutional management plan, (2) they could be harmed by failures of the plan, or (3) they are part of a larger community with an interest in the plan's success. People in the first category would include federal, tribal, state, or local officials or private companies with legal responsibilities for the plan: They need to know what they are protecting, how long it must be protected, and for what reasons. People in the second category would include site users as well as others such as well drillers, farmers, or hunters who might need to be informed of use restrictions. People in the last category might include, for example, members of the medical community needing to know the extent to which local people are drinking contaminated groundwater or eating contaminated fish. The last category might also include concerned individuals or organizations that unofficially monitor the site to ensure that use restrictions are observed and that the site's management plan is being properly implemented. The information conveyed, the methods of conveying it, and the targeted audiences may need to change through time to continue to be effective. In a recent book, Benford (1999) discusses several projects studied to convey information across “deep time,” meaning time scales of at least centuries. He points out that such efforts to plan ahead for centuries and millennia present challenges that simply cannot be met with present capabilities, and that solutions to such challenges would require a profound cultural shift. Periodic Reevaluation of the Site Protective System The total protective system in place—the activities just discussed, as well as the contamination reduction and isolation efforts discussed in the preceding chapters—should be comprehensively evaluated on a periodic basis, to determine how well they are working as a system. This periodic required reevaluation can not be assumed to occur and be effective because the past record of similar such reevaluations shows numerous deficiencies. Moreover, the present capability for assuring future performance is limited (Freudenburg, 1992; LaPorte and Keller, 1996). Still, the importance of periodic reevaluation is undeniable. If parts of the system are weak or have failed, then the

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites efficacy of the system as a whole may be seriously compromised. In contrast, if all parts of the system are working well, or if it is clear that some system components are no longer as essential as they once were (e.g., given a reduction in the toxicity of the residual contaminants), then the people responsible for long-term management of the site can be reasonably confident that the system will be protective until the next comprehensive re-evaluation. Legal requirements (e.g., the five-year review requirement under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended—CERCLA) will set a minimum standard for the periodicity of such comprehensive reevaluations. However, these requirements are made with, at best, a rudimentary understanding of the nature and scope of each individual problem. More or less frequent comprehensive reevaluations may be appropriate for some sites; thus, this topic should be discussed and agreed upon by DOE, its regulators, the surrounding community, and those responsible for institutional management when its measures are put in place. Moreover, the frequency of comprehensive reevaluations should, over time, depend upon how well the system is performing; if it is performing poorly, more frequent reevaluations may be necessary. In conducting a comprehensive reevaluation of the protective system, off-site factors (e.g., changes in surrounding land uses or hydrologic conditions) as well as on-site factors should be taken into account. In other words, the site's protective system should not be treated as an isolated phenomenon; instead, it should be thought of as part of a larger fabric that inevitably will experience physical and social changes over time. Cultivating New Remediation Options and Developing Better Understanding of Site Contaminant Behavior As has already been noted in this report, stewardship activities at many DOE sites have limited likelihood of remaining effective for as long as residual contaminants will remain hazardous. For this reason, the set of site stewardship measures is taken in this report to include support for both basic science and applied science research and development (R&D). It also includes the monitoring of scientific and technical breakthroughs in arenas beyond those controlled by DOE for their applicability to DOE sites. Including such elements among stewardship measures is intended to address beforehand the possibility that a site's protective measures might fail. It does so both by reducing the consequences of such failures should they occur and by reducing the probability of their occurring in the first place. Over the long run, both monitoring newly emerging technologies for their potential application to sites with residual contamination and directly funding research and development on new technologies will serve to help reduce risk, thereby boosting the effectiveness of site remediation. More effective site remediation thus becomes a necessary condition for more effective site stewardship. Data collection for purposes of monitoring and site surveillance, as well as in support of site and waste characterization, is another set of activities that belong in this same category. Because these activities support improved understanding of site environments and the sources, fates, and effects of contaminants that remain on site, they also contribute to more effective site stewardship. More generally still, the same can be said for support of basic scientific research aimed at improved understanding of sites and the fate and transport of residual contaminants on them. Adequate support for this last component of a comprehensive stewardship program is not likely to emerge on a site-specific basis. System-wide attention is necessary if basic limits in scientific understanding with the potential to undermine the effectiveness of institutional management programs at individual sites are to be addressed effectively. A broad, nation-wide stewardship program must provide support for scientific research, both for the physical and social sciences, and for technology development that is directed toward reducing the risk to the public and the environment posed by residually contaminated sites. Such research and development should be conducted in conjunction with the remediation program prior to site closure, but should continue as part of long-term institutional management following closure. The overall goal of such research and development should be improved understanding, methodologies, and technologies that have the potential to reduce both the cost and risk. A number of recent reports by the National Research Council (e.g., 1994c; 1996e; 1997b; 1998b; 1999c,e; 2000a,b) provide some details of the research and development currently needed by DOE to accomplish remediation (both contaminant reduction and isolation) of its legacy waste sites.

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites TYPICAL INSTITUTIONAL CONTROLS Although stewardship of residually contaminated sites in both the public and private sectors is now receiving considerable attention (see Appendix D), it was largely ignored until recently. To the extent that it did attract attention, institutional controls, particularly use and access restrictions, typically were the exclusive focus. As noted above, institutional controls are only one component of a total system of effective stewardship. Nevertheless, they merit special attention because of their importance. Under ideal conditions they can become the institutional counterpart to engineered barriers in preventing undue exposure to residual contaminants. For this reason, we provide a brief summary of typical institutional controls here. Much has been written on institutional controls; some of the more recent reports are described in Appendix D. In addition to these resources, DOE and EPA are currently preparing guidance documents on selection of institutional controls and their application. Easements Easements are based in property law. They are legal devices through which limits are placed on the use of property or through which people other than the property owner are allowed use of the property for a specified purpose. For easements to be enforceable, the property owner must grant a property right to another party, who then becomes the easement holder. This right is recorded with the appropriate governmental unit, to give notice to members of the public and any future purchasers of the property. As suggested in the foregoing paragraph, easements can be affirmative or negative. Affirmative easements give the easement holder usage of or access to property owned by someone else. In the context of environmental remediation, an affirmative easement would allow the easement holder to come onto property owned by someone else to perform monitoring or a response action. For example, according to CERCLA Section 120(h)(3), when previously contaminated property is transferred by the federal government to anyone except a party potentially responsible for the contamination, the deed must contain a covenant warranting that any additional remedial action found necessary shall be conducted by the United States. An affirmative easement would likely be required to fulfill the terms of the covenant. Negative easements allow the easement holder to limit the owner's use of the property. A negative easement would allow the easement holder to preclude the property owner from activities such as well drilling, use of certain chemicals, or excavation below a certain depth in order to protect barriers, pump-and-treat systems, or other remediation activities taking place. This type of easement is more commonly called a deed restriction. Conservation easements, a form of negative easement, allow the easement holder to dictate that the property can only be used for conservation-related purposes; they are recognized by almost every state (Korngold, 1984). Conservation easements overcome problems associated with traditional easements, and therefore may be useful at some contaminated sites (U.S. Environmental Protection Agency, 1998b). In some cases, a conservation easement can be enforced, not only by the easement holder, but also by others. Like other easements, however, conservation easements do not necessarily offer “perpetual” protection; they are subject to political influence (Ohm, 2000). Covenants are similar to easements in that they also require a conveyance of the interest in land. Covenants and easements differ in the formal requirements needed to effectuate them. Equitable servitudes have some similarities to covenants, and courts may “create” an equitable servitude if some of the formal requirements of a covenant are lacking. Deed Notifications Deed notifications are descriptions included in the deed to put future buyers on notice about some particular feature of the property. For example, deed notifications are required under CERCLA Section 120(h)(1) for any transfer of federal property if hazardous substances were known to have been disposed or released, or stored for a year or more on the property. They are required under the Resource Conservation and Recovery Act of 1976, as amended (RCRA), to inform future buyers that the property was used to manage or store hazardous wastes (see Appendix E). Deed notifications do not create enforceable use restrictions because they do not involve granting a

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites property right; however, they often are considered an institutional control because they may serve to deter inappropriate uses. Deed notices, as well as easements and covenants, are subject to the vagaries of each county's recording system. Zoning Zoning is a local governmental authority (under the government's “police power”) to designate and regulate land uses. In the context of remediation, zoning operates as an institutional control if it serves to restrict site uses to those that are compatible with the cleanup level that has been achieved. Traditionally, comprehensive land use zoning authority has been enabled by states and exercised by local governments; however, not all local governments have enacted zoning ordinances, and zoning decisions can be changed relatively readily by governing bodies. Permit Programs Permits or licenses can be granted by the appropriate local, state, or federal govemment entity to allow certain land use activities such as well drilling, excavation, blasting, mining, and construction. Permit programs function as institutional controls when they are relied upon to ban or restrict activities that could conflict with an approved site use. Reliance on permits to serve as institutional controls would be based on the authority and capability of the permit program to implement and enforce the program effectively. The permitting entity would need to have sufficient information to know why, where, and for how long a permit should be granted. Fences Fences are fixed structures that serve as boundaries or barriers. Ideally, the degree of impenetrability of the fence (e.g., a three-strand wire fence versus an eight-foot cyclone fence ringed with razor wire) should be commensurate with trespasser interest—at least to the extent to which we can know this in advance—and with the harm that could ensue if the fence were breached. Fences that are virtually impenetrable by humans, however, will not necessarily stop other species and thus may not prevent the migration of terrestrial animals or plants onto or off of a contaminated site. Signs Signs as institutional controls consist of the message and the material used to convey the message. Sometimes they must last a very long time. For example, at the Waste Isolation Pilot Project (WIPP, a deep geologic repository for transuranic wastes in New Mexico) DOE intends to use both records and physical markers to warn future societies about the location and contents of WIPP in order to help deter inadvertent intrusion over the coming millennia (U.S. Department of Energy, 1999), although independent observers have evaluated the feasibility of this effort with skepticism (Erikson, 1994). To be effective, a sign 's message would need to be understandable by all intended audiences for the length of time it must convey information, and the sign material would need to endure for that same time period or to be properly maintained. The sign's message and material would need to be periodically evaluated for its effectiveness and durability and modified as warranted. Government Ownership The federal, tribal, state, or local governments that own contaminated sites can use their ownership rights to exclude all external use of the site or to impose use restrictions through leases or contracts. All government ownerships are not equal, however. Often, surface rights are split from mineral rights or water rights. At the federal level, some land is classified as “public” while other land is classified as “acquired lands.” State land ownership is similarly complex. For example, U.S. western states upon being admitted into the union were given certain lands

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites for schools that require management by state land boards to maximize income. The use of these lands is limited by state constitutions. Other lands acquired by state governments, such as office buildings, are simply owned by the state in the same fashion as land is owned by a private party. Land ownership complexities must always be carefully analyzed, both at sites themselves and as they affect adjacent land that might serve as buffers. Leases A lease can serve as an institutional control by requiring parties to observe use restrictions and other conditions. Sites owned by the federal government may be leased to other public or private parties, with the lease terms stipulating such things as water use restrictions, approved access routes, and construction limitations. Violations of the lease terms then need to be addressed in the courts. CONSTRAINTS AND LIMITATIONS The above general descriptions of the components of a comprehensive stewardship program, as well as the somewhat more detailed descriptions of typical institutional controls, are meant to give a sense of the range of activities that could and often should take place in conducting long-term stewardship of a residually contaminated site. Nevertheless, the efficacy of these activities is by no means assured. Problems that can arise in conducting these activities are noted below. Underlying contextual and structural factors contributing to these problems are discussed in Chapter 6 and Chapter 7. Institutional Controls Because efforts to maintain land use restrictions on private lands run the risk of coming into conflict with property rights, their long-term viability remains questionable. Private property rights are strongly supported in the U.S. Constitution, and the ‘takings ' issue is frequently raised when the use of private property is restricted in the name of protecting broader public values. The appropriate balance to be struck between protecting private property rights and the exercise of police powers in the name of public health and safety protection is a major area of inquiry in constitutional law and an area in which the courts have been especially active. The viability over time of land use restrictions is likely to be especially questionable in cases where contamination levels are not high enough to prohibit all public access but not low enough to permit unrestricted use. Often the real issue is not whether use restrictions will eventually fail, but when and what the consequences will be when they do. Currently, ways to strengthen institutional controls for residually contaminated sites are being explored (English et al., 1997) (see below). While these improvements would make institutional controls more robust, past failures are worth noting. A few examples follow: In 1953, Love Canal was transferred from Hooker Chemical to the Niagara Falls School Board. The board gave assurances that no construction would take place in landfilled areas, and a deed notice was placed in the land records. Despite these measures, however, adjacent land was developed for housing soon thereafter, with homebuyers later reporting they had never been informed of the hazards or the deed notice. Within just two years, an elementary school had been erected and opened on top of the former Hooker Chemical landfill (Gibbs, 1982; Hersch et al., 1997; Levine, 1982; Mazur, 1998) (see Sidebar 5-1). In Oregon, houses were built on a closed landfill, even though the state had previously notified the county that the site should not be used without state approval. After the problem was discovered by state employees, residents' wells were sampled and found to be contaminated (Pendergrass, 1996). At the DOE Oak Ridge Reservation in Tennessee, land sold by the federal government in the early 1990s was to be used as a golf course. The deed prohibited use of groundwater that came from the Y-12 plant and was contaminated with organic chemicals (trichloroethylene). Within just a few years, however, DOE discovered that a well was being drilled to irrigate the golf course. Fortunately, DOE discovered this problem and, since that time, has upgraded its oversight regarding deeds of surrounding property.

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites SIDEBAR 5-1 LOVE CANAL, NEW YORK: AN EXAMPLE OF FAILED STEWARDSHIP (by William R. Freudenburg) The Love Canal was originally proposed by William T. Love in 1892, intended to harness the water of the upper Niagara River into a navigable channel—canal—then thought to be the future of industrial transportation, plus a 280-foot waterfall that could be used to generate cheap hydropower (Gibbs, 1982; Levine, 1982; Mazur, 1998). The canal would have been six to seven miles long, but it was abandoned after only about half a mile had been dug. In 1920, the land was sold at public auction and, after serving as a swimming hole and ice-skating rink for the few people who lived nearby at the time, it ultimately became a municipal and chemical company disposal site. The Hooker Chemical Company, which is generally seen as having been the major user of the site, began purchase arrangements for the site in 1941, started using it for dumping of chemical and hazardous waste from its manufacturing operations in 1942, and completed purchase in 1947. Hooker (which was the largest industrial enterprise in Niagara Falls in the 1970s, employing some 2,400 people and ultimately becoming part of Occidental Chemical) acknowledges having dumped some 20,000 to 25,000 tons of chemical wastes into the Canal. The city of Niagara Falls also used the site for dumping municipal wastes, and residents report that the U.S. Army used the site for dumping as well, although the Army denies having done so. Over 200 compounds had been identified in the Canal by the early 1980s; the largest component (roughly 25 percent by weight) was benzene hexachloride, a waste product from producing the insecticide lindane. This and many of the other compounds in the Canal were recognized by Hooker as having been toxic. In 1953, after filling the Canal, Hooker covered the filled canal with dirt, selling it to the local Board of Education for $1.00. According to most accounts, the deed contained stipulations that warned of potential hazards and announced that if anyone was injured by the wastes, Hooker would not be responsible. Did it take hundreds of years for these stewardship measures to fail? Hardly. Home building began off-site (i.e., adjacent to the 16-acre rectangle that had once been the Canal) quite soon after the land changed owners. By 1955, only two years after the transfer, an elementary school had been constructed and opened on top of the hazardous chemical dumpsite. By the late 1950s, residents had begun to complain about sickness, odors, black sludge, and symptoms such as chemical burns on their children. It took nearly two decades before their complaints were taken seriously by the relevant governmental and health officials. REFERENCES Gibbs, L. M. 1982. Love Canal: My Story. State University of New York Press, Albany, N.Y. Levine, A. 1982. Love Canal: Science, Politics, and People. Lexington, Books: Lexington, Mass. Mazur, A. 1998. A Hazardous Inquiry: The Rashomon Effect at Love Canal. Harvard University Press, Cambridge, Mass>. Also at Oak Ridge Reservation, the committee learned that a building at the K-25 facility (now the East Tennessee Technology Park) had been decontaminated up to eight feet from the floor, with the stipulation that no activities would be allowed above that height. It is not difficult to imagine, however, that the eight-foot limit eventually will be ignored or forgotten by users of the building. In addition, dust and dirt that slough from the walls above eight feet and the ceilings and other high structural features may contain contaminants. These examples vary; the first is the most egregious; the last is speculative. Moreover, the well water examples illustrate both the limitations of institutional controls and ways that oversight can compensate for their deficiencies. Nevertheless, all of these examples suggest that institutional controls should not be relied upon for proper performance. Sidebar 5-2 gives another example of the fallibility of institutional controls.

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites SIDEBAR 5-2 THE BIKINI ATOLL EXPERIENCE: INHERENT FALLIBILITY OF INSTITUTIONAL CONTROLS AND THE VIRTUES OF “DEFENSE IN DEPTH” (by A. Ballou Jennings and Thomas Leschine, University of Washington) Between 1946 and 1962 the United States conducted 109 nuclear weapons tests in the Pacific Proving Grounds. Twenty-three of these tests were conducted on or near Bikini Atoll, located in the Marshall Islands, with a total yield exceeding 75,000 kilotons. Documentary photos and film footage of the 1954 Bravo shot, which vaporized three small islands and left a crater one-mile wide and 200 feet deep, have become iconic images of the era of large-scale nuclear testing that was ushered in by the Cold War. Bikini's 167 inhabitants agreed voluntarily to evacuate, with the understanding that the relocation was to be temporary. With little understanding at the time about the longevity of radiation effects in the environment, there appeared to be little reason to expect that the island could not be returned to habitability and resettled soon after the cessation of testing (Weisgall, 1994). In 1947 the United States became administrator of the Trust Territory of the Pacific, with obligations to promote “economic advancement and self sufficiency,” to develop and regulate the use of natural resources, and to protect the health of the inhabitants. Atomic testing at Bikini continued until 1962. Following debris removal and the replanting of vegetation, Bikini Islanders began to resettle in 1972. Contamination risks were very much of concern. Bikinians were instructed to avoid eating locally grown foods and to limit their consumption of coconuts in particular. The importance of coconuts in the traditional Marshallese diet was not fully appreciated, however, and the required medical monitoring that was part of the resettlement agreement soon began to detect increasing body burdens for both strontium-90 and cesium-137. By 1978 the dose levels observed in many inhabitants far exceeded even the highest pre-settlement estimates (Robison et al., 1997). Reexamination of the scientific judgments that supported the resettlement revealed that the evidence available at the time on the behavior of radionuclides in soils was derived from continental soils and not the calcium carbonate-rich soils of Pacific islands, where cesium readily substitutes for potassium in plant uptake. Coconut trees proved to take up large quantities of cesium under the conditions that prevailed on Bikini, and became the primary pathway conveying radiological contamination to the human population. In expectation that doses could exceed established radiological protection limits, follow-up radiological surveys and medical monitoring had been put into place. According to an internal memorandum in an archive compiled for public release by the U.S. Atomic Energy Commission (1978), “doses to resettled populations were expected to exceed dose limits.” The idea was that the resettlement strategy could be adjusted as the true radiation exposure picture emerged. In this regard, the system put in place can be said to have worked. Errors that resulted from dose estimates, having been based on inappropriate models, were compensated for by medical and environmental monitoring able to detect an exposure problem in the human population and trace it to its sources in the environment. Government officials had expected the resettled Bikinians to be aware of the risks of returning to their island home, to self-police their food consumption habits (despite little effort at risk communication), and to accept the risks of radiation exposure in exchange for the benefits of being able to return to their ancestral home. These assumptions proved to be in error. Bikini is judged safe for human habitation today, but with the proviso that all food and drink be supplied from outside. It thus remains unlikely that the traditional way of life the original Bikini evacuees expected soon to be able to resume can be reestablished for generations yet to come. Ironically, the conditions imposed by the need for continued radiological protection have proved well suited to a newer group of occupants, and Bikini has now become a major international tourist destination for underwater diving. REFERENCES Robison, W.T., K.T. Bogen, and C.L. Conrado. 1997. An updated dose assessment for resettlement options at Bikini Atoll —A U.S. nuclear test site. Health Physics 73:100-114. U.S. Atomic Energy Commission. 1978 (April 3). Staff Review of Bikini Atoll Cleanup and Rehabilitation. U.S. DOE Archives, 326 U.S. Atomic Energy Commission, Radiological Survey, McGraw Collection, Washington, D.C. Weisgall, J.M. 1994. Operations Crossroad: The Atomic Tests at Bikini Atoll. Naval Institute Press, Annapolis, Md. 440 pp. The weaknesses of different types of institutional controls have been discussed in various reports and articles (see, e.g., English and Inerfeld, 1999; Applegate and Dycus, 1998; Hersch et al., 1997; Pendergrass, 1996) and have been detailed in a draft reference manual on institutional controls by the U.S. Environmental Protection Agency (EPA) (1998a). Many of the weaknesses concern the fallibility of memory and the susceptibility of present-day intentions to future political and economic pressures. More broadly, as discussed in Chapter 7, there are concerns about institutional constancy, the atrophy of vigilance, and the problematic nature of follow-up and enforcement (LaPorte and Keller, 1996; Freudenburg, 1992), especially when stewardship impedes use for economic gain of desirable property that happens to be contaminated. A study by the National Research Council (1995c) reported some serious concerns about the efficacy of long-term institutional controls for the proposed high-level waste repository at Yucca Mountain, Nevada. While Yucca Mountain is not a DOE “legacy site,” findings about the reliability are relevant: “(1) institutional controls cannot be relied upon to protect a repository against intrusion, but (2) they should be used nonetheless as an added measure of protection” (see Sidebar 5-3). Oversight and Enforcement Oversight and enforcement activities, if carried out with continuous vigilance, should have the potential to help compensate for the deficiencies of other stewardship activities. The act of placing a use restriction on a parcel,

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites zoning it, posting a sign, or erecting a fence will not be sufficient to assure that an ongoing site management measure will continue to perform as expected. An example of a problem in the short term was the rapid deterioration and disappearance of some of the signs warning of the contamination of East Fork Poplar Creek in Oak Ridge, Tennessee (Mulvernon, 1998); such a problem is all the more likely in the long term. Similarly, engineered systems to isolate contaminants will, as noted in Chapter 4, require maintenance and monitoring to ensure their long-term efficacy, and these ongoing management activities will, in turn, require oversight and, if necessary, enforcement. Oversight and enforcement may be difficult to accomplish, however. For example, creating enforceable easements can be quite complicated. As indicated earlier, a property interest must be conveyed and recorded with the appropriate local government. Everyone with a property interest needs to be involved in agreeing to the easement. Parties such as a mortgage, lien, or earlier easement holder need to be involved along with the property “owner” during easement negotiations, because they have a legal interest in the property (U.S. Environmental Protection Agency, 1998a). Moreover, proprietary controls such as covenants and easements generally can be in force only if recorded and only by the party that holds the right to prevent restricted activity. If not enforced in a timely way, these controls will be extinguished by the courts; furthermore, such restrictions are not always binding on future property owners. Local governmental ordinances also have serious weaknesses. Zoning is subject to change through exceptions, variances, and amendments, and even if zoned use restrictions remain in effect they may in some instances be overturned in court upon the appeal of a property owner. Other ordinances, such as building codes and well-drilling restrictions, may not be enforced effectively by local government agencies, especially if the agency is under-staffed, lacks specialized technical competence, or becomes preoccupied with other responsibilities over time.

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites SIDEBAR 5-3 INSTITUTIONAL CONTROLS AT YUCCA MOUNTAIN GEOLOGICAL REPOSITORY (by Thomas A. Cotton) In Section 801 of the National Energy Policy Act of 1992 (P.L. 102-486), the U.S. Congress directed the U.S. Environmental Protection Agency (EPA) to promulgate standards to ensure protection of public health from high-level radioactive wastes in a deep geologic repository that might be built under Yucca Mountain in Nevada. Congress explicitly asked the National Research Council to advise EPA on the technical bases for such standards, including addressing the question of the efficacy of long-term institutional controls of a high-level radioactive repository at Yucca Mountain. In its report, the National Research Council Committee on the Technical Bases for Yucca Mountain Standards (TYMS) found that, while a Yucca Mountain repository would not be a “legacy site” (National Research Council, 1995), the issues surrounding the role of institutional controls are similar and the TYMS committee 's findings about reliability are relevant to the Department of Energy legacy waste sites discussed in the current report. In its report, the TYMS Committee took a dim view of the efficacy of institutional controls: With respect to the second question of Section 801, we conclude that it is not reasonable to assume that a system for post-closure oversight of the repository can be developed, based upon active institutional controls, that will prevent an unreasonable risk of breaching the repository's engineered or geologic barriers or increasing the exposure of individual members of the public to radiation beyond allowable limits. This conclusion is founded on the absence of any scientific basis for making projections over the long term of the social, institutional, or technological status of future societies. Additionally, there is no technical basis for making forecasts about the long-term reliability of passive institutional controls, such as markers, monuments, and records. (National Research Council, 1995, p. 11 and 105). In their explanation for this conclusion, the committee stated: For some initial period, human intrusion could be managed through active or passive controls. As long as they are in place, active institutional controls such as guards could prevent intruders from coming near the repository. We conclude, however, that there is no scientific basis for making projections over the long term of either the social, institutional, or technological status of future societies. Relying on active controls implies requiring future generations to dedicate resources to the effort. There is, however, no scientific basis from which to project the durability of governmental institutions over the period of interest, which exceeds that of all recorded human history. On this time scale, human institutions have come and gone. We might expect some degree of continuity of institutions, and hence of the potential for active institutional controls, into the future, but there is no basis in experience for such an assumption beyond a time scale of centuries. Similarly, there is no scientific basis for assuming the long-term effectiveness of active institutional controls to protect against human intrusion. Although it may be reasonable to assume that a system of post-closure oversight can be developed and relied on for some initial period of time, there is no defensible basis for assuming that such a system can be relied on for times far into the future. Between these limits, the ability to rely on such active institutional systems presumably diminishes in a way that is intrinsically unknowable. We have seen no evidence to support a claim to the contrary. People might disagree, of course, on their predictions for how long into the future active institutional controls might survive and remain effective. (National Research Council, 1995, p. 106) However, the committee went on to observe that: although there is no scientific basis for judging whether active institutional controls can prevent an unreasonable risk from human intrusion, we think that if the repository is built such controls and other activities can be helpful in reducing the risk of intrusion, at least for some initial period of time after a repository is closed. Therefore, although it cannot be proven, we believe that if a repository is built at Yucca Mountain, a collection of prescriptive requirements, including active institutional controls, record-keeping, and passive barriers and markers, will help to reduce the risk of human intrusion, at least in the near term. The degree of benefit is likely to decrease over time. Further, once other knowledge of the repository is lost, passive markers could attract

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites the curious and actually increase the risk of intrusion. Nonetheless, we conclude that the benefits of passive markers outweigh their disadvantages, at least in the near term. (National Research Council, 1995, p. 108) In summary, the TYMS committee concluded that (1) institutional controls cannot be relied upon to protect a repository against intrusion, but (2) they should be used nonetheless as an added measure of protection. (Section 801 of The National Energy Policy Act of 1992 in fact requires perpetual post-closure oversight of a repository.) This is compatible with the philosophy adopted in EPA's original regulations for high-level waste and transuranic waste repositories (40 CFR part 191), which precluded reliance on institutional controls for more than 100 years but at the same time required continued control for as long as feasible. Such an approach does not allow institutional controls to be used as a way to avoid doing the best job to isolate the waste that is technically possible and financially feasible, but instead views institutional controls as providing redundant protection. This appears to be consistent with the conclusion of the present report that stewardship measures are the least favored of the three legs of the stool, but nonetheless have a role to play in any long-term plan that must leave some contaminants at the site in question. REFERENCE National Research Council. 1995. Technical Bases for Yucca Mountain Standards. Committee on the Technical Bases for Yucca Mountain Standards, National Academy Press, Washington, D.C. In the words of the draft EPA guidance document on institutional controls (U.S. Environmental Protection Agency, 1998a, p. 52): . . . both proprietary and governmental controls have weaknesses in terms of long-term reliability. . . . Where turnover in ownership is likely, common law doctrines restricting enforcement by parties who do not own adjoining land can render proprietary controls ineffective; governmental controls may be preferable in such cases. At the same time, over the long term governmental controls may not be effectively enforced because political and fiscal constraints may influence a State or local government's exercise of its police power. A draft DOE study (U.S. Department of Energy, 1997a, p. 2-8) states the problem bluntly: “ . . . there is little or no evidence demonstrating the effectiveness of enforcing and maintaining institutional controls. ” A study by the National Research Council (1999a) reaches a similar conclusion, noting that land-use controls “for both legal and physical reasons, are very difficult to enforce.” For a set of institutional management activities to remain effective, there should be both the means to detect impending or actual failure and also the authority and will to require those responsible to correct the problem. Unfortunately, as illustrated by the problems with use restrictions, oversight and enforcement activities can have important limitations, particularly if they are not conducted with a clear allocation of responsibility and authority as well as adequate training and funding. Moreover, even if an oversight arrangement has been fairly effective in the short run (the DOE Oversight Office within the Tennessee Department of Environment and Conservation, which operates with funding provided by DOE, might be one example—see later in this chapter), there is no guarantee that the present arrangement will provide the expected vigilance for decades or centuries into the future.

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites Information Collection, Storage, and Retrieval To be useful, information must be carefully and systematically collected and stored, and information from the receding past must remain easily retrievable. Such an information management program requires stable financing and an administrative mechanism that is maintained over the entire period that the information is needed. Information management is proving to be more challenging and potentially troubling than policymakers sometimes expect (see ICF Kaiser, 1998). One important, informal way to respond to some information challenges is to take advantage of the knowledge of present and past workers who have carried out the day-to-day jobs of weapons production and waste disposal. These employees have sometimes been treated as adversaries, or “whistleblowers,” yet they can be a fount of knowledge about the existence and location of wastes. One example is the recent revelation concerning the dearth of trustworthy information available to workers at the Paducah (Kentucky) Gaseous Diffusion Plant that would have informed them about potentially harmful radioactive contamination in their work environment through the many years of the plant's operation (The Washington Post, September 21, 1999, and December 23, 1999). Nevertheless, surprises continue to occur. For example, members of the Site Specific Advisory Board at Rocky Flats, Colorado, pointed out to the committee that during the excavation in late 1998 of a second waste disposal trench at Rocky Flats, the collapse of a trench wall revealed a buried waste container that had not previously been known. As the recollection or availability of current and past weapons facility workers declines, the problem of fading institutional memory is likely to worsen. The more formal process of information storage and retrieval needs attention as well. Today's information management systems, which generally are computerized, in principle, can offer vast improvements over paper-based record-keeping systems, such as ready access to information that might have been virtually impossible to locate in reams of paper records, data integration through means such as geographic information systems, and, at least in principle, the potential for accessibility by citizens as well as employees. Unfortunately, over the long haul, computer-based information management systems may be much less legible and durable than paper-based systems. Information professionals such as archivists—often heavy computer-users themselves—have expressed concerns about the long-term reliability of computer-based information systems (Tangley, 1998). Computer-based records can lose their accessibility relatively quickly if advances in computer technology make prior means of storing information (e.g., computer tapes or 5-1/4-inch diskettes) obsolete. Even more fundamentally, there is the problem of magnetic degradation over time, a problem that, by some estimates, can take place within relatively few years. The very long time frames over which institutional management must remain reliable at DOE sites presents special problems for the information storage and retrieval systems upon which DOE site stewards must depend. The durability beyond even a decade or so of some information storage media currently in heavy use (VHS recording tape and CD-ROMs) has been questioned (Tangley, 1998). Even when recording tapes and disks remain intact, the hardware and software needed to read them may no longer be available. Site information needs to be maintained in accessible paper or electronic forms for as long as the site must be protected. It will need to be systematically, and probably repeatedly, transferred to new electronic data bases or other systems before its present form deteriorates or becomes obsolete. As with retrieving information from past nuclear weapons plant workers, the ability to readily retrieve information from past computer-based systems may become increasingly difficult. Information Dissemination Still another problem arises with ongoing information dissemination. For successful institutional management of risks, relevant information should get to the people who need it, when they need it. These people may be those responsible for managing or overseeing the site, or they may be citizens potentially affected by the site. While an aggressive information outreach campaign may be mounted when remedial actions are being decided and conducted, will it remain aggressive for decades to come? Moreover, as the nature of the site's risks change—for

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites example, if off-site migration of contaminants occurs—the contents and targets of an information dissemination campaign will need to be adjusted accordingly. Periodic Reevaluations of the Site Protective System DOE is responsible for the CERCLA five-year reviews at its sites (Executive Order 12580, Superfund Implementation). Thus, every five years at a minimum, an assessment should be done by DOE of site institutional management systems. The concern is that even if these assessments are legally required, they may not be carried out. For example, the U.S. Environmental Protection Agency (EPA) is responsible for completing the CERCLA five-year review at private sites. However, as of March 31, 1999, 143 five-year reviews were overdue, with an average overdue period of 17 months, and the backlog of uncompleted reviews had increased threefold since the previous audit in 1995 (U.S. Environmental Protection Agency, 1999), an indication that even a legally binding obligation can fail. In its guidance on the use of institutional controls when federal agencies transfer property to non-federal users, EPA headquarters states “Even if implementation of the institutional controls is delegated in the transfer documents, the ultimate responsibility for monitoring, maintaining, and enforcing the institutional controls remains with the lead federal agency responsible for cleanup” (U.S. Environment Protection Agency, 2000). In addition, some EPA regional offices have issued their own policy statements regarding measures to assure the long-term effectiveness of institutional controls or land use controls at residually contaminated federal property. In these policy statements, the regions call for the federal facilities within their jurisdictions to specify clear plans for implementing, enforcing, and monitoring institutional or land use controls whenever a site to be remediated will have residual contamination necessitating use restrictions (U.S. Environmental Protection Agency, 1998c). Despite these guidance documents, it would appear that systematic and comprehensive re-evaluations by DOE of a site's protective system, including but not limited to its institutional controls, are by no means guaranteed, especially over time. As will be discussed in Chapter 7, individuals and organizations often cut back on tasks regarded as “peripheral” when pressed for time or money. Periodic reevaluations could easily be deemed peripheral over the long term. They are even more likely to be regarded as peripheral if the site has been leased to or acquired by another party. Developing Remediation Options and Understanding of Contaminant Behavior Similarly, promoting development of new options to decontaminate further a remediated but residually contaminated site—or directed research in ways that resolve scientific uncertainties that could compromise the effectiveness of site protective measures—could quite easily “fall through the cracks,” especially if other priorities are clamoring for attention. Pursuing research and development (R&D) to improve characterization of waste and the contaminated environment and to provide new decontamination options and more effective means to stabilize, isolate, and monitor contamination, may also be given short shrift, especially if the current downward trend in funding for DOE remediation technology R&D continues (National Research Council, 1999b). Deficiencies in site and waste characterization at DOE sites, in the scientific and technical understanding and tools available to support this work, and in the technologies available to address site contamination problems, have been pointed to repeatedly (National Research Council, 1995b; 1997a,c; 2000b). The ramifications of the resulting gaps in scientific understanding of site and waste conditions potentially loom larger as intensive site remediation and strong DOE and contractor presence at sites give way to less intensive on-site work and reduced levels of onsite presence. Such gaps in understanding include knowledge of the behavior of residual contaminants in site environments, the removal efficiency of site remediation that has already been completed or is ongoing, and the performance of barrier technologies in use to contain residual site contamination. In commenting on recent drastic revisions in estimates of the travel time of subsurface contaminants at the Radioactive Waste Management Complex at the Idaho National Engineering and Environmental Laboratory (INEEL), long held to be on the order of tens of thousands of years, but very recently revised to only a few tens of years, that report notes (National Research Council, 2000b, p. 30, Sidebar 2.6):

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites The uncertainty of these estimates is attributed to several factors, including incorrect conceptualizations of the hydrogeologic system, improper simplifying assumptions, incorrect transport parameters, and overlooked transport phenomena. CHARACTERISTICS OF AN EFFECTIVE STEWARDSHIP PROGRAM The overarching requirement for an effective stewardship program is that it be reliable. A reliable program has a reasonable likelihood of achieving its objectives over the period it must remain in effect. For example, the reliability of a stewardship program will be enhanced if the characteristics of layering and redundancyare applied. These and other related characteristics are discussed below. Layering and redundancy. Layering and redundancy rest on the notion that a stewardship program is more likely to be reliable if it avoids “putting all its eggs in one basket.” For purposes of this report, layering means using several measures to carry out roughly the same function (e.g., several institutional controls to restrict uses); redundancy means creating a situation in which several entities are responsible for or have a vested interest in the effectiveness of the measures. Both the layering and redundancy should be carefully designed to assure that the relevant organization will have appropriate incentives to protect public health and safety. If properly implemented, however, the layering and redundancy concept can be comparable to that of using several different physical barriers to increase the robustness of a contaminant isolation system. Ease of implementation. A stewardship activity must be capable of being put into effect, and it also should be reasonably easy to keep in effect. Monitoring commensurate with risks. Monitoring methods and schedules need to be commensurate with the harm that could be caused in the case of release of contaminants or failure of a monitoring system. The monitoring strategy should also include indicators that trigger modification or termination of the activity based on changes in risk to human health or the environment. Oversight and enforcement commensurate with risks.As discussed above, one key stewardship activity is to have a “watchdog” over other stewards and stewardship activities. For the watchdog to be effective, however, it must have teeth. For example, if DOE leases property to a private party on the condition that no construction can occur without prior DOE approval and the tenant then violates this condition, the federal government must be willing and able to sue the tenant for damages and termination of the construction project, and possibly the lease. Appropriate incentive structures. Given that different people and institutions respond to different incentives, attention needs to be devoted to assuring that site stewardship managers will be appropriately motivated for carrying out the needed tasks over time, not only in implementing and monitoring an institutional management plan, but also in the vigilant safeguarding of remaining hazardous and radioactive materials. With careful planning it may be possible to identify or develop institutional managers having clear incentives to act in ways that preserve stewardship systems. Certain types of local citizen groups that have clear concerns over public health might be expected to have such incentives. Recent research has suggested that the Regional Citizens Advisory Councils that were set up (and provided with reasonably stable funding) after the Exxon Valdez oil spill in Alaska do indeed seem to be playing an important sentinel function at least for a period of a decade, working against the kind of “atrophy of vigilance” that had been seen prior to the spill (Busenberg, 1999; Freudenburg, 1992; Galanter, 1974). Adequate funding. Implementing, monitoring, and appropriately modifying stewardship activities will require adequate and reliable financial resources throughout the activities' required lifetimes. It is not clear whether regional citizens advisory councils, for example, will be able to exercise the same degree of influence in the absence of reasonably stable funding. Durability or replaceability. A stewardship activity should endure either for as long as the site 's residual contaminants remain hazardous, or until the activity can be refreshed or replaced by an equally reliable substitute activity. For example, as discussed above, institutional controls such as zoning restrictions may not survive long; if they do not, they need to be succeeded by other use restrictions appropriate to the remaining risks. As with contaminant isolation technologies, stewardship activities at many DOE waste sites will need to be effective for

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites much longer time periods than our experience to date with them. The associated uncertainties underscore the need to develop ways to improve their reliability over time. FUTURE DIRECTIONS FOR IMPROVING STEWARDSHIP If a site's residual contaminants present risks to human or environmental health and safety, stewardship—including but not limited to institutional controls—will be required. Understanding the current limitations of various stewardship activities can lead to developing possible approaches for improving stewardship. A few approaches are briefly discussed below. These approaches are presented here as possibilities only; they are not necessarily endorsed as preferred solutions. In addition, these approaches are not necessarily mutually exclusive; instead, some are broad while others address a particular current problem. Stewardship Entity One possible approach is to identify or create a single entity with primary responsibility for maintaining and enforcing stewardship activities. Its mandate should be clearly defined. To fulfill this mandate, it would need legal authority and responsibility (including appropriate susceptibility to sanctions if the entity were to be derelict in its duties), as well as stable funding (E. Frost, Attorney, Leonard, Hurt, Frost & Lilly, presentation to a group from the committee, June 9, 1999; Probst and McGovern, 1998). Activities of the entity might include all of those listed previously in this chapter under “Components of a Comprehensive Stewardship Program.” The entity might take title to sites (public or private), lease or transfer property for reuse and retain the proceeds, support research to advance stewardship activities as well as contaminant reduction and isolation, and train and use local citizens, organizations, and businesses to perform monitoring and maintenance. Such an entity would take advantage of local knowledge of the site and its surroundings, resulting in improvement of the local economy and increasing awareness of site use restrictions. The entity might be subject to citizen suits for failure to carry out its responsibilities. It might be funded by a trust, by Congress, and/or by site lease and sale proceeds. Such an entity might be an organization such as an existing federal or state agency; alternatively, it might resemble a trust. Funding by Congress may be a highly questionable proposition, in view of the failure (so far) of the Nuclear Waste Fund mechanism, which was created to provide assured funding for the development of a permanent high-level waste repository. The last 18 years' experience with the Nuclear Waste Fund shows that the federal budget system is ill suited to that sort of effort. The Nuclear Waste Policy Act of 1982 required DOE to enter into contracts with nuclear utilities, committing DOE to begin acceptance of their spent fuel by January 31, 1998, in exchange for payment of an annual fee of 1 mill per kilowatt hour. This fee brings in over $600 million annually to the federal treasury, yet Congress has been appropriating less than 1/3 of that amount each year for development of a repository, and has failed to provide the funds requested by DOE for the program for a number of years. Since all of the budget control laws apply to the appropriations from the Nuclear Waste Fund into which the fee is paid, expenditures from that Fund for the repository program are constrained despite the high annual income to the Fund and the legal obligation to provide disposal services. Trusts A trust is a legal entity that holds an asset (money or property) for the benefit of beneficiaries (see Sidebar 5-4). Trustees are designated to manage the asset and are legally obligated to manage it in the best interests of the beneficiaries. Beneficiaries can sue for damages or injunctive relief if the trustees violate their fiduciary responsibilities. In a trust for a DOE waste site, the federal government would create the asset (money and/or property), the state or region might be the beneficiary, and the trustees might be either individuals appointed for multi-year terms or an entity that holds title to the site subject to use restrictions. The beneficiary could sue the trustees in federal court for violations of their fiduciary responsibilities. Several examples of trusts for contaminated sites follow:

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites Trusts are used in the RCRA program to ensure funding for post-closure care of non-federal hazardous waste management sites: Site owners and operators create the asset (money), a bank is the trustee, and the state is the beneficiary. Under the Presidio Trust Act of 1996 (16 U.S.C. §460bb appendix; enacted as Title I of H.R. 4236, P.L. 104-333, November 12, 1996; and amended by P.L. 105-83, November 14, 1997), the parts of the Presidio (a former Army post near the Golden Gate Bridge in San Francisco, California) not retained by the U.S. Department of the Interior were put under the responsibility of a wholly owned government corporation. It manages the leasing, maintenance, and improvement of the Trust properties, it can negotiate and enter into agreements, leases, and contracts to carry out its functions, and it develops rules and regulations governing its operation. It can retain proceeds received by the Trust for the administration, maintenance, improvement, etc., of the properties, but it may not sell or otherwise convey the title to these properties. It also can sue and be sued to the same extent as the federal government. The State of Tennessee Department of Environment and Conservation signed a consent order on October 29, 1999, that requires DOE to make yearly payments of $1 million for 14 years into a trust fund maintained by the State of Tennessee to cover post-cleanup monitoring costs at the Oak Ridge Reservation disposal facility (see Sidebar 5-4). The consent decree may become a model for other states when entering into agreements to allow DOE to dispose of waste on site to obtain funds for long-term monitoring. The expectation is that, after 14 years, the trust fund should generate enough interest to cover the expected yearly operation and maintenance costs for the facility (about $650,000, according to Inside Washington Superfund Report,November 10, 1999, p. 8). A limitation of the Tennessee Perpetual Care Trust Fund is that the federal government can make no financial commitments beyond one year under the Anti-Deficiency Act. Congress could and should address longer-term funding issues for such trusts. Transferring Partial Authority and Responsibility to Other Federal or State Agencies Another alternative for authoritative and responsible management of sites under stewardship is to combine state or federal agencies with the organizations responsible for the contamination. The Rocky Mountain Arsenal in Colorado provides an example of this approach. The U.S. Department of Defense (DOD) and Shell Oil Company are the liable parties for remediation of the Rocky Mountain Arsenal. Congress directed DOD to transfer jurisdiction of certain portions of the Rocky Mountain Arsenal to the U.S. Department of the Interior for management as part of the National Wildlife Refuge System. Management of the transferred property remains subject to any necessary cleanup activity; DOD is responsible for the cleanup and is liable, under CERCLA, for future cleanup activity. The Rocky Mountain Arsenal National Wildlife Refuge Act of 1992 (Public Law 102-402) requires that the real property that is exempted from the transfer but subsequently disposed shall be subject to deed restrictions prohibiting in perpetuity residential or industrial use, groundwater use, hunting and fishing for consumptive use, and agriculture. Given that this measure is still a relatively recent one, its long-term reliability is unknown. Another approach would be one of four kinds of public or quasi-public institutions that have had relatively successful track records in safeguarding materials over long periods of time; for example, libraries, archives, museums, and, at least for the last 100 years, the U.S. National Park Service. All four share at least a pair of characteristics that may be noteworthy in the present context. First, in most cases, they are not expected to balance preservation with economic development, instead being given clear responsibility for preservation duties. Second, all four are expected to carry out their preservation duties in ways that permit or even encourage controlled public access. The potential for public access appears to increase the visibility of an organization's performance to members of the broader public, who then can be expected to have an interest in the constancy of the institution's vigilance over time (Busenberg, 1999; Clarke, 1993; Freudenburg, 1992; LaPorte and Keller, 1996; Shrader-Frechette, 1993). Remediation Easement As noted previously, conservation easements have become reasonably widespread and are recognized by many states, offering options that are worth considering. Alternatively, it may be possible to create a federal remediation easement that overcomes the possible enforcement problems of conventional easements and allows for broader usage than conservation easements. Such an easement could be patterned after the hazardous substance easement described in CERCLA reauthorization and amendment bills introduced in the 105th U.S. Congress (H.R. 3000, Superfund Reform Act; H.R. 2750, Superfund Cleanup Acceleration and Liability Equity Act; and H.R. 2727, Superfund Acceleration, Fairness, and Efficiency Act). The hazardous substance easements proposed in these bills were enforceable for 20-year periods with additional 20-year renewal periods. They were enforceable against all owners and subsequent purchasers as well as all holders of interest in the property regardless of whether the interest was recorded or not. The easement, as described in H.R. 3000, could be assigned to “a State or other governmental entity that has the capability of effectively enforcing the easement over the period of time necessary to achieve the purposes of the easement.”

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites SIDEBAR 5-4 TRUST FUNDS AND INSTITUTIONAL MANAGEMENT (by Elizabeth K. Hocking) One of the keys to the success of an institutional management plan is funding that is adequate and consistent throughout the required life expectancy of the plan. Federal facilities are currently funded for one year of operation at a time. Funding for one fiscal year could be dramatically increased or decreased for the next year depending upon congressional findings and appropriations. A one-year funding cycle is incompatible with achieving the goals of a multi-year institutional management plan. An irrevocable trust for institutional management plans should be evaluated as a possible solution to this funding dilemma. A trust is a legal entity that holds an asset (money or property) for the benefit of beneficiaries. Trustees are designated to manage the asset and obligated by law to manage it in the best interests of the beneficiaries. Beneficiaries can sue for damages or injunctive relief if the trustees violate their fiduciary responsibilities. Trusts are presently used in the Resource Conservation and Recovery Act of 1976, as amended (RCRA) program to ensure adequacy of funding for post-closure care of non-federal hazardous waste disposal sites. Site owners and operators create the asset (money), the state is the beneficiary, and a bank is the trustee. In an institutional management trust, the federal government would create the asset (money and/or land), the state could be the beneficiary, and the trustees could be individuals appointed for multiple year terms or an entity that actually holds title to the land subject to the institutional management plan. The beneficiary could sue the trustees in federal court for violations of their fiduciary responsibilities. Creation of an institutional management trust fund raises several questions. First of all, how can the federal government commit itself to an irrevocable trust? How would the legal document establishing the trust be constructed to preclude future congresses from disestablishing the trust or under-funding it? Second, what is the intended use of the trust? Should the trust be used for operations and maintenance related to the institutional management plan? Should it be used only if the U.S. Department of Energy (DOE) or a successor agency fails to implement the institutional management plan and damages arise (human health or environmental degradation)? Third, how would the amount of the asset that needs to be held in trust be determined and how could the asset be replenished? Fourth, would it be possible to establish trust arrangements only for specific sites, rather than for the DOE complex as a whole, to take into consideration such differences between sites in level and type of contamination, degree of remediation that has been accomplished, and anticipated residential and industrial land use. In most cases, the life-cycle cost of the operations and maintenance of the institutional management plan will be difficult to determine with certainty at the time the trust is created. Furthermore, the immediate deposit in the trust of the reasonably expected life-cycle cost of the plan for the entire DOE complex could cause a dramatic and unhealthy increase in the federal budget. How should these issues be addressed? If the trust is to be used only upon failure of the DOE or a successor agency to comply with the institutional management plan, how would the initial dollar amount of the asset be determined? How would the trust be replenished if original cost estimates were inaccurate? Fourth, what would be the obligations and rights of the trustees? Can the trustees allow re-use of the land, and who would establish the conditions of re-use? Will the trustees be exempt from suits brought by beneficiaries if Congress has under-funded the trust? AN EXAMPLE: THE TENNESSEE PERPETUAL CARE TRUST FUND Pursuant to the Tennessee Hazardous Waste Management Act (Tenn. Code Ann. § 68-212-101 et seq.), the Commissioner of the Tennessee Department of Environment and Conservation has the authority to require the payment of sums to a statutorily created fund called the “Perpetual Care Trust Fund” if the Commissioner determines that there is a reasonable probability that a site “will eventually cease to operate while containing, storing, or otherwise treating hazardous waste on the premises that will require continuing

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites and perpetual care or surveillance over the site to protect the public health, safety, or welfare.” On October 29, 1999, the Commissioner made such a determination for the U.S. Department of Energy (DOE) Oak Ridge Reservation and signed a consent order decreeing that DOE shall pay the Tennessee Department of Environment and Conservation (TDEC) the sum of $14,000,000, payable in 14 annual installments. These funds are to be deposited into a “Perpetual Care Trust Fund” for use by TDEC for its performance of the surveillance and maintenance of the Environmental Management Waste Management Facility at the Oak Ridge Reservation, Oak Ridge, Tennessee. The surveillance and maintenance is to begin upon completion by DOE of the disposal of contaminated media and radioactive and hazardous wastes in an engineered, above-grade, earthen disposal cell, and construction of a RCRA-compliant cap to cover the cell and of associated monitoring systems. Unlike private trusts, the TDEC trust will remain under the control of a government entity, albeit in this case a state instead of the federal government. As such, the arrangement is likely to provide a test of such trusts, as well as providing tentative answers to the questions posed above. Insurance Another approach might be to require that recipients of previously contaminated federal property have insurance against contamination liability. As it now stands, if newly discovered contamination is shown to have been caused by the federal government in the past and the property recipient did not contribute to the contamination, the recipient can seek recourse against the federal government. Perhaps this should be insurance enough, but it does create a potentially undesirable incentive system in that future government officials might well have few resources for dealing with the contamination, but large resources for resisting action. Private-sector insurance mechanisms deserve greater attention in connection with privatization options. One of the concerns that citizens have expressed about having private-sector firms take over the responsibility for decontamination is that such firms might have incentives to “cut corners,” potentially endangering public, worker, and environmental health and safety. One possible approach for minimizing such undesirable incentives might be to include strict liability provisions and strong legal safeguards for local residents, along with the requirements that the private firms obtain and maintain liability insurance for their management activities. So long as all relevant parties in advance know these provisions, this could produce a more desirable incentive structure. Moreover, if the property recipient were required to have insurance against contamination liability, the insurance company would have a vested interest in initially conducting an independent appraisal of the risks associated with property transfer and ensuring that any use restrictions are observed. Operating companies' insurance premiums would be lowered

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Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites in cases where decontamination efforts were more effective, insurance companies would share the incentives to control costs and to improve performance, and government bodies could be placed in the position of being relatively impartial arbiters of the interests of other parties rather than of having the potential conflict of interest of needing to minimize governmental costs and liabilities as well as the remediation of contamination. RELEVANT RESEARCH AND DEVELOPMENT NEEDS The previous two chapters addressed the need to improve contaminant reduction and isolation technologies. Such improvements, however, will not in themselves lead to reliable long-term site institutional management unless gaps in basic scientific understanding are also addressed. These gaps include, for example, deficiencies in our ability to make accurate estimates of subsurface contaminant behavior, especially in the conceptual understanding of this behavior to enable accurate and robust modeling. Our understanding of how to develop and implement stewardship also must be improved, especially with respect to the appropriateness and reliability of stewardship activities. Improvements through new research are needed in the following areas: investigating ways to make existing stewardship activities more effective; developing new institutional controls (e.g., the federal remediation easement mentioned above); designing new, more effective and efficient systems for monitoring and oversight; evaluating the characteristics of organizations best suited to take responsibility for stewardship activities; and developing methods to predict and compare the effectiveness of alternate stewardship approaches. If stewardship responsibilities are to be vested in a single entity, research might be conducted on the following questions: What organization structure would be optimal? For example, would the entity be a private-sector firm with government oversight, a wholly owned government corporation, a government agency, or a quasi-governmental agency? Is an agency such as DOE, with its history of weapons production, more or less suited for a stewardship function than another agency with a different history and culture? What would the entity's property-related powers and responsibilities be? For example, could it hold private and public land? Lease property? Convey fee titles? Would it be bound by the existing property disposition protocols applicable to federal land? What would the entity's fiscal powers and responsibilities be? For example, could it commingle congressional appropriations with proceeds from leases or property transfers? Could it charge a maintenance and operation fee for federal government lands as well as the privately held lands turned over to it? How would that fee be determined? What incentives (or sanctions) would be needed to encourage governmental and private organizations to turn over stewardship of residually contaminated sites to the entity, and to motivate the entity to carry out its responsibilities? What roles would individuals and other organizations (e.g., members of affected communities, regulators) have? As these questions make clear, even a potentially attractive “answer” such as a single stewardship entity leaves many issues still to be resolved. Moreover, it is not necessarily the right answer in all cases. Instead, as the following chapter helps to illustrate, contextual factors need to be taken into account in making decisions about the long-term disposition of the DOE waste sites.