Alice Williams, associate principal deputy assistant secretary in the Office of Environmental Management (EM) at the Department of Energy (DOE), discussed risk and sustainability and set the stage for the workshop. Risk means many things to EM, including risks to human health, the environment, and programs and projects, as well as financial and operational risks. This view of risk has evolved over the past 25 years, since a time when it was simply about a leaking tank. Risk today is more subtle, and often disagreements are over the subtleties rather than the bigger issues that have been addressed in the past. EM has eight overarching priorities: activities to maintain a safe and secure posture in the EM complex; radioactive tank waste stabilization, treatment, and disposal; spent nuclear fuel storage, receipt, and disposition; special nuclear material consolidation, processing, and disposition; high-risk soil and groundwater remediation; transuranic and mixed/low-level waste disposition; soil and groundwater remediation; and excess facilities deactivation and decommissioning. Although much cleanup has been accomplished, there are still more than 90 million gallons of highly radioactive waste stored in more than 200 aging underground storage tanks. There are also more than 100 square miles of soil and groundwater contaminated with both chemicals and radionuclides.
Ms. Williams described the long-term stewardship at two sites—Rocky Flats, Colorado, and Fernald, Ohio—as successful projects. At Fernald, community leaders and regulators knew that the economic landscape of that part of Ohio would not support an industrial park and proposed a nature preserve as the end use for the site. The local community was a key factor in the dialogue and decision making. Similarly, Rocky Flats was
turned over to the Department of Interior’s Fish and Wildlife Service as a wildlife preserve, and both sites serve as a model that DOE hopes can be used at other sites. However, the life-cycle cost of the environmental management program is an ongoing challenge to continuing cleanup. The EM legacy cleanup program is forecasted to continue past 2060 with “to go” costs of up to $209 billion. Tank waste activities are the most costly of EM’s cleanup activities, and facility decontamination and decommissioning and soil and groundwater activities are the second most costly cleanup activity. Other sites will likely be added into EM’s mission as well. For example, a site in Paducah, Kentucky, was recently added and will be an opportunity for DOE to use the lessons learned from Rocky Flats and apply them to another large cleanup activity. With ongoing and future cleanup, said Ms. Williams, several key concepts will need to be addressed:
- Points of compliance. Cleanup is long-term, and the location and boundaries for cleanup are extremely important to consider.
- Risk prioritization. Sequencing and scheduling the work are key components of the federal facility agreements and consent orders, and the nine criteria under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) continue to underpin remedy selection.
- Decision making. Decisions regarding cleanup priorities must be risk informed.
- Stakeholder engagement. Dialogues with stakeholders about onsite disposal have been successful and have become a more accepted practice. This will be important in considering long-term sustainable solutions.
- Sustainability. Stakeholders, environmental protection, and costs will all need to be considered to inform a final decision on the end state of a given site.
In 2008, President Obama issued Executive Order (EO) 13514, which requires federal agencies to establish an integrated strategy toward sustainability and to prioritize the reduction of greenhouse gas emissions. Ms. Williams stated that, to meet EO13514 requirements, EM has accelerated facility decontamination and decommissioning of high-energy-consuming excess facilities, ensured sites have robust energy management programs, promoted in situ decommissioning and green remediation, where appropriate, and successfully implemented energy reduction efforts at several sites. The nine CERCLA criteria do not directly include sustainability, but a tenth criterion addressing sustainability could contribute to more holistic approaches at ongoing sites for more successful cleanup. Looking forward, Ms. Williams stated that EM will face ongoing challenges, including
- holistic approaches to remediation of sites with multiple contaminant sources and multiple post-closure uses, including technically based, in situ, point-of-compliance, and point-of-use monitoring locations;
- effective post-closure controls: monitoring post-closure controls and engineering natural controls;
- approaches for assessing long-term remedy performance to reduce uncertainty and need for controls; and
- upfront consideration of sustainability options and analyses that cover the three sustainability pillars (social, environmental, and economic).
Carolyn Huntoon, independent consultant and former assistant secretary for environmental management at DOE, discussed challenges to regulatory flexibility. Dr. Huntoon serves on DOE’s Environmental Management Advisory Board (EMAB), which consists of up to 15 members appointed by the secretary of DOE to advise the assistant secretary of DOE’s EM. Dr. Huntoon chaired a subcommittee on risk and sustainability for EMAB, which was convened, in part, to review how to better engage stakeholders in the context of sustainability. It is important for a remediation project to provide a clear, concise, understandable statement of purpose to the general public and stakeholders, said Dr. Huntoon. This communication is imperative for finding flexibility in existing regulatory frameworks and in particular in tri-party agreements.
Larry Camper, director of the Division on Waste Management and Environmental Protection at the Nuclear Regulatory Commission, also commented on regulatory flexibility. He shared his views from a personal perspective as a practitioner rather than from an official perspective as a
Challenges to Regulatory Flexibility
- Overlap of regulations
– Competing standards: Nuclear Regulatory Commission, EPA, state regulators
– Differing implementation processes
- Political and stakeholder influence
- Lack of understanding of risk
- Risk assessment vs. risk management
- Implementation of restricted release option
- Exposure scenario options
Larry Camper, Nuclear Regulatory Commission, October 30, 2013
representative of the Nuclear Regulatory Commission. The Atomic Energy Act of 1954 charges the Nuclear Regulatory Commission to focus on radiological criteria—to account for chemical and radiological contamination in environmental analysis but not to clean up such contamination. One ongoing challenge to regulatory flexibility is an overlap of regulations that often involve competing standards, he said. For example, the Nuclear Regulatory Commission and the Environmental Protection Agency (EPA) use differing criteria. Implementation processes for fulfilling regulatory obligations can also differ between agencies.
There is also a challenge in communicating risk, because the general public lacks an in-depth understanding of risk, particularly of the difference between risk assessment and risk management. The extent of remediation at a site and the pathway toward risk management depend on the exposure scenarios chosen for the end state; there is a large difference between evaluating a site for residential versus industrial use. Thus, the exposure scenario greatly influences the amount of flexibility that can be incorporated into the remediation. Social media are driving increased stakeholder involvement and public engagement. Because of the increased level of attention, however, public interest groups may expect the responsible parties to follow particular paths that do not align with regulatory criteria. At times, a remediation strategy has satisfied regulatory criteria, which were set at a level to protect public health, but not stakeholders, who wanted a lower value for the level of residual contaminant.
Dr. Camper shared a case study from Milan, New Mexico, on the challenges to regulatory flexibility resulting from overlapping regulations. The Milan site is a uranium tailing impoundment and a Uranium Mill Tailings Radiation Control Act (UMTRCA) Title II site undergoing decommissioning. The mill operated from 1958 to 1990, and groundwater contamination was identified in 1976. Remediation of that contamination commenced in 1977 and is scheduled for completion in 2022. In 1983, the site was added to EPA’s National Priority List (NPL). At the time, the site was being regulated by New Mexico as an agreement state. The Nuclear Regulatory Commission initiated regulatory authority in 1986, at which time the site had been on the NPL for 3 years. This resulted in three different regulators being involved at a single site. In 1993, the Nuclear Regulatory Commission and EPA entered into a memorandum of understanding (MOU) for the site, which designated the former as the lead regulatory agency for reclamation and closure activities at the by-product material disposal area. It also assigned EPA responsibility for monitoring all reclamation activities to assure that those conducted under the Nuclear Regulatory Commission’s authority would allow attainment of applicable or relevant and appropriate requirements under CERCLA.
As of 2012, the tailings impoundment was considered to be between
70 to 80 percent remediated through a flush and process treatment imposed upon the licensee by the Nuclear Regulatory Commission. Although an MOU was in place and a successful remediation plan was being implemented, EPA took additional actions—conducted a human health risk assessment, a remedial systems evaluation, a feasibility study to move the tailings pile, and a record of decision for groundwater and surface remediation—to meet CERCLA requirements. This is an example of overlapping regulations inhibiting effective decision making and preventing better protection for the community, said Dr. Camper.
In contrast, DOE’s effort to clean up waste incidental to reprocessing is an example of regulatory flexibility. Section 3116 of the National Defense Authorization Act of 2005 gives the Nuclear Regulatory Commission responsibility for consulting with DOE for assessing compliance with high level waste and waste incidental to reprocessing determinations at DOE sites in Idaho and South Carolina. For example, the Nuclear Regulatory Commission has consulted with DOE in the classification and cleanup of waste incidental to reprocessing at the Savannah River Site. The Nuclear Regulatory Commission, however, does not regulate DOE, and both agencies have created a pathway forward that ensures that they comply with the 2005 law and that the sites are successfully remediated. Their efforts reflect an ongoing, iterative process, but one that displays how communication and cooperation between two federal agencies can result in successful outcomes and flexibility within the existing regulatory framework.
Dr. Camper stated that the Nuclear Regulatory Commission incorporates the three pillars of sustainability (social, environmental, and economic) into its regulatory program. Regarding the social pillar, the Nuclear Regulatory Commission ensures that a site is remediated to a level that is as low as reasonably achievable (ALARA) and uses a dose-based standard, which ensures that the public is protected. The dose standard and an analysis based on the National Environmental Protection Act (NEPA) ensure that the environment is adequately protected. Economically, a cost-benefit analysis is performed at sites undergoing decommissioning.
Stephen Cobb, chief of the Governmental Hazardous Waste Branch for the Alabama Department of Environmental Management, provided a state regulator’s perspective on overcoming challenges to risk-informed decision making. Mr. Cobb is responsible for the management and oversight of Resource Conservation and Recovery Act (RCRA) and CERCLA cleanup sites. Although Alabama does not have any large DOE cleanup sites, it does have Department of Defense (DOD) sites. Challenges at any site include the expense, long timeframes, current and future exposure pathways, natural resource impacts and losses, complexity of the cleanup, and technological limitations, said Mr. Cobb. Given these challenges, however, persistence and continued movement toward cleanup are important.
Sustainable remediation has many aspects, including cost, performance, operability, maintainability, effectiveness, protectiveness, and timeframes. Mr. Cobb stated that his department views sustainable remediation as an ongoing process to achieve the successful attainment of standards that requires maintenance over time. When sites are complex, the possibility of a technical impracticability waiver is often raised; however, Mr. Cobb questions the soundness of a public policy that waives cleanup standards for sites that are complex or too expensive to clean up. Sustainable remediation should not be an excuse to weaken standards necessary to protect human health and the environment. There are several drivers to sustainable remediation, including sound public policy, short- and long-term protection of human health and the environment, source removal where possible to enable longer-term environmental restoration, and economic development, the last of which is key to keeping communities viable.
Mr. Cobb presented a case study from the Anniston Army Depot, which has been a major, active, military industrial facility in central Alabama since the 1940s. The geology underlying the site is complex—a karst setting along a major fault line. A karst landscape is formed from the dissolution of soluble rocks, such as limestone, and is characterized by sinkholes, caves, and underground drainage systems. Also at the site is a thick clayey residuum overlying weathered and unweathered karst bedrock. Currently, there are interim groundwater pump-and-treat and monitoring systems, and the only offsite detection of contaminants is about 1.6 miles south of the site. The site is characterized as having an estimated 3.6 million to 27.1 million pounds of trichloroethylene (TCE) in the groundwater, of which 87 percent is estimated to be in the clayey residuum.
The offsite detection occurs at a spring with 32 million gallons per day base flow rate, which is a primary drinking water supply for the local city and eight other water systems in the area. Approximately 10 million to 20 million gallons of drinking water per day are pumped from the spring to at least 100,000 people. The spring is considered an invaluable high-quality water source, which operates at one-tenth the cost of the other reservoirs in the area. It is a high-quality natural resource, and it is the only known habitat for the pygmy sculpin, a small fish listed on the endangered species list. Mr. Cobb offered several lessons learned from the cleanup activities at this site:
- Recognize that no single technology can clean up a complex site; success will result from a system of technologies.
- Recognize that achieving full cleanup is a matter of time and perseverance and not of relaxed standards.
- Recognize that every pound of contaminant removed, treated, or
destroyed is a success, and that small successes over time can yield big results.
- Manage for long-term effectiveness and not immediate gratification.
- Always aim for a final remediation goal of unrestricted use.
- Be transparent about the remedy, acknowledge the full time and cost needed to achieve cleanup goals, and acknowledge and commit to monitoring and responding in perpetuity if necessary.
- Utilize real cost accounting. Long-term remedies that initially cost less could, over a long timeframe, cost more than more aggressive shorter-term remedies that are initially more expensive. The full long-term costs of interim protective measures, permanent reliance on monitoring and containment systems, loss of use of the resource (e.g., what is the future cost of a local drinking water supply), and impediments to local economic growth and development must be fully considered.
Anna Willett, director of the Interstate Technology and Regulatory Council (ITRC), discussed ITRC’s sustainability activities. ITRC is a state-led organization focused on advancing innovative environmental technologies and approaches by integrating new technologies into existing rules and regulations for better environmental decision making. Removing barriers to new technologies and approaches, such as performance-based contracting, is part of this integration. Ms. Willet identified several challenges to risk-based decision making:
- Different agencies conduct risk assessments differently, and there should be better alignment among agencies and states on risk assessment and risk reduction.
- Risk management and decision making based on risk assessment results must be improved. Many aspects to risk management make it variable, including professional judgment, values, tolerance for risk, and consideration of the future value of resources.
- Disagreements among professionals over the fate of chemicals in the subsurface and the technical feasibility of cleanup have led to many remediation failures. Observations over the past 10 years have shown that there is no consistent determination of “maximum extent practicable,” “technical impracticability,” or “site closure”; definitions become a policy determination made by a regulatory agency.
When discussing risk and risk-based decision making, state agencies and the general public are challenged by variability in policy and technical definitions at the federal level, Ms. Willet said. States are starting to develop
FIGURE 2-1 The different factors that comprise a remediation system.
SOURCE: Willett 2013.
their own approaches to risk-based site closures. The Indiana Department of Environmental Management is conducting risk-based closure for every regulatory program in the state, she noted. Currently, it is the only state taking such an approach across all regulatory programs. Although there is clearly a scaling difference between applying this approach at a state level and applying it at a national level, there are likely to be more valuable examples coming from states. Indiana is struggling with training staff in risk assessment and risk management procedures, and in particular in interpreting a risk assessment for a given site and deciding on necessary actions. When optimizing a remediation system, it is necessary to consider all of the different factors that comprise the system (Figure 2-1). Ideally, optimization would entail considering these factors prior to the implementation of the remedy.