Improving the Environment An Evaluation of the DOE's Environmental Management Program (1995) / Chapter Skim
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Part 2: Evaluation of Regulatory Measures
Part 2: Evaluation of Regulatory Measures
Pages 27-56
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. Evaluallon or Regulatory Measures
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ANDREW P CAPUTO, Attorney, Natural Resources Defense Council JAMES R
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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.
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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.
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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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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.
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· The focus should be on improved implementation of existing regulatory measures; development of new legislation should be considered only secondarily.
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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.
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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)
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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.
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, 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.
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- Prohibiting states from exercising RCRA corrective action authority at federal sites on the National Priorities List (NPL)
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· Allow CERCLA to be delegated to states by requiring them to follow exactly what is required in CERCLA or allow states to have their own cleanup program, which might or might not be allowed to be more stringent than federal requirements when regulatory authority is delegated to states, mechanisms would be needed to ensure that they are adequately and costeffectively performing their regulatory function.
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Communities and states that are willing to make institutional commitments to implementing plans for near-te~ and midterm remedies are participating in responsible stewardship. In the absence of permanent solutions, responsible stewardship is desirable because it allows progress to be made by providing adequate protection against environmental and human-health risks that are serious and long-lived.
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. Responsible stewardship should not be relied on to provide permanent solutions.
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Furthermore, there is a need for a formal decision framework for future land-use and cleanup standards. The framework must include an opportunity for input from all interested parties including Indian Nations and other affected communities.
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to RCRA corrective action so that reasonably anticipated future land use is identified early in the decision-making process on the basis of using community input, in both risk assessment and remedy selection (E. Livingston-Behan, DOE, personal communication, June 19, 19951.
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. In an effort to remedy the lack of consistent radiation-cleanup standards, the EPA and the Nuclear Regulatory Commission are developing the Radiation Site Cleanup Regulation (40 CFR 196)
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RESIDUAL-RISK REGULATION AND NATIONAL CLEANUP STANDARDS 45 approach will yield regulations that are consistent, are protective of public health and the environment, and are issued in a timely manner. There needs to be a standard framework for acceptable risk vis-a-vis landuse and water-use categories that gives stakeholders leeway within a fixed range of permissible risk.
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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.
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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.
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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.
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1994a. Federal Facilities: Agencies Slow to Define the Scope and Cost of Hazardous Waste Site Cleanups.
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1995. Report to Speaker Newt Gingrich: "The Top 20 Ways to Turbocharge DOE Cleanup." Office of Congressman Richard Hastings, U.S.
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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.
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, 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.
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addresses the public-health effects of contamination, policy incentives, prioritysetting, 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.
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· Allow states to be sole regulators of cleanup at federal facilities. · Clarify applicability of the Atomic Energy Act to waste management.
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55 The General Accounting Office (GAO) report Federal Facilities: Agencies Slow to Define the Scope and Cost of Hazardous Waste Site Cleanups (GAO, 1994a)
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