Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites (2000)

Mary R. English

Over the past few years, a good deal of attention has been paid to the role of institutional controls and, more broadly, stewardship in arrangements for sites with potentially harmful residual contaminants. These sites include not only sites within the U.S. Department of Energy (DOE) nuclear weapons complex, but also other federal sites, such as those of the Department of Defense; Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA, also known as Superfund) sites that are on the U.S. Environmental Protection Agency (EPA) National Priorities List; other sites within state Superfund programs; and sites being cleaned up under voluntary programs, leaking underground storage tank programs, and Resource Conservation and Recovery Act of 1976, as amended (RCRA) corrective action programs. In addition, the expected shut-down and decommissioning of a number of the nation's more than 100 nuclear power reactors has heightened attention to provisions for possible residual contaminants at their sites.

Most analyses assume that continued stewardship of some sites will be necessary; the question is not whether, but how. While these analyses vary in their degree of skepticism about the long-term workability of these arrangements, virtually none is altogether sanguine. Key findings and recommendations of some recent reports are summarized below.

Probst, K.N., and A.I. Lowe. 2000 (January). Cleaning Up the Nuclear Weapons Complex: Does Anybody Care? Center for Risk Management, Resources for the Future, Washington, D.C. 37 pp.

This study was funded by the W. Alton Jones Foundation, the John Merck Fund, and by general support from Resources for the Future. The DOE annual budget for its Office of Environmental Management (EM) is approximately $6 billion. Over $50 billion has been spent on cleanup to this time, and EM estimates that it will cost at least another $150 to $200 billion over the next 70 years to complete. Despite these costs, very little attention has been paid on the national level to DOE's cleanup program. Four of the many reasons for this lack of attention are: (1) it is difficult to focus on an environmental problem that is so large in scope and so technically complex; (2) most of the former weapons production facilities are in remote areas, far from population centers; and (3) funding and much of the oversight of DOE's environmental program fall under the defense committees in Congress, where even huge environmental outlays pale in comparison with other defense programs, and (4) DOE's EM program has become an important job-creation engine in the communities that once employed many in the nuclear weapons enterprise, making it a politically popular program.

The study concludes that increased national attention to and public scrutiny of the EM program at DOE is long overdue. DOE sites harbor contamination that will remain hazardous for thousands of years, and billions of dollars will be spent to reduce these risks in the coming decades. Mismanaged or misguided projects have cost taxpayers millions—perhaps even billions—of dollars in the past 10 years. Four steps are recommended to help improve the workings of the DOE environmental cleanup project: (1) clarify the EM mission and separate DOE's “job creation” and economic transition functions from EM programs and contracts; (2) decide which sites will—and which will not—have a future DOE mission; (3) require annual reports to Congress on the EM program; and (4) create an independent commission to evaluate the current EM organizational structure and identify needed reforms.

Stewardship Working Group. 1999 (December). The Oak Ridge Reservation Stakeholder Report on Stewardship: Volume 2. Oak Ridge Reservation End Use Working Group. Oak Ridge, Tenn.

This study was conducted at the request of DOE to the Oak Ridge Reservation Environmental Management Site Specific Advisory Board to describe the need for and the basic elements of a stewardship program, its application to contaminated areas on the DOE Oak Ridge Reservation, and the roles and responsibilities of stakeholders (defined as individuals, organizations, or other entities that have an interest in what happens to the Oak Ridge Reservation and other DOE facilities). The Stewardship Working Group recommended that:

1. The Secretary of Energy issue a national policy establishing a commitment to long-term stewardship, to be followed by implementation guidance that allows for local participation and flexibility.

2. DOE codify its approach to fulfilling its stewardship responsibilities in all CERCLA Records of Decision for the Reservation and in other legally binding documents. Interim Records of Decision must include project-specific stewardship requirements. Comprehensive long-term stewardship requirements for the Reservation must be described in final Records of Decision.

3. The Federal Facility Agreement for the Reservation be amended to require and to develop appropriate milestones for the major stewardship-related documents, including the Reservation Land Use Control Assurance Plan, each project Land Use Control Implementation Plan, and final Records of Decision.

4. DOE amend the Oak Ridge Reservation Public Involvement Plan and Federal Facility Agreement to provide for public and local government involvement in the following activities: the Reservation Land Use Control Assurance Plan; each project Land Use Control Implementation Plan; the DOE Long-Term Stewardship Plan; and five-year reviews.

5. A Citizens Board for Stewardship be established or designated to review and assess long-term stewardship of the Reservation.

6. DOE promptly recognize and work with all proposed stewards to begin implementation of their respective stewardship functions. The functions should be defined and incorporated into the DOE Long-Term Stewardship Plan.

7. DOE implement, in cooperation with other entities, a Stewardship Research Program designed to understand the ecological and social impacts of residual contamination and to devise new and improved long-term remediation methods and technologies.

8. DOE collect, preserve, and integrate all information needed for long-term stewardship of the Reservation in its information management system.

9. DOE incorporate stewardship activities into a project management and tracking system to provide stewards with timely notification of stewardship activities and to track their progress.

10. DOE implement a system of public information and education to disseminate timely information regarding environmental quality and required land use controls on the Reservation.

11. DOE institute effective procedures for filing and registering contaminated land notices to ensure that they are found in title searches if land is transferred.

12. DOE specify in relevant city, county, and state information systems the conditions and restrictions on the use of contaminated land.

13. DOE continually refine its understanding of the specific costs of operating stewardship activities and incorporate these costs into the budget process.

14. DOE identify for each remedial action the expected design life and the associated replacement or repair costs that can be expected by future generations.

15. DOE, to the maximum feasible extent, promote mechanisms for funding stewardship that do not depend on annual appropriations, trust funds being the preferred approach. Should complete coverage of costs via trust funds not be possible, at least principal should be set aside to produce income sufficient for monitoring and other activities evaluating the impact of residual contamination on human health and the environment.

U.S. Department of Energy (Office of Environmental Management). 1999 (October). From Cleanup to Stewardship: A Companion Report to Accelerating Cleanup: Paths to Closure and Background Information to Support the Scoping Process Required for the 1998 PEIS Settlement Study. Office of Environmental Management DOE/EM-0466, Washington, D.C.

From Cleanup to Stewardship, produced by the Office of Strategic Planning and Analysis within the DOE Office of Environmental Management, is a companion report to Accelerating Cleanup: Paths to Closure. From Cleanup to Stewardship provides background information on the obligations and activities of long-term stewardship, which, according to the report, is expected to be necessary at more than 100 DOE sites after their remediation. The report discusses the nature of long-term stewardship at DOE sites, including such issues as activities to be performed, the regulatory context, the relationship of stewardship to land use, current organizational responsibilities, the largely unknown costs of long-term stewardship, and planning for long-term stewardship. The background information in the report supports the scoping process for a study required pursuant to the 1998 Lawsuit Settlement Agreement concerning the DOE Programmatic Environmental Impact Study (PEIS). The report includes the following five appendices: the December 1998 PEIS Lawsuit Settlement Agreement, Regulatory Requirements, Methodology, Glossary of Terms, and Site Profiles. The latter, which is contained in a separate document, provides brief analyses of 144 DOE sites that might need stewardship. Of these, 109 are, according to the report, expected to require some degree of long-term stewardship.

U.S. Department of Energy Environmental Management Advisory Board (EMAB) Long-Term Stewardship Committee. 1999 (September). Report and Findings for the September 1999 (EMAB) Meeting, Washington, D.C.

The Environmental Management Advisory Board (more commonly called EMAB) was developed to advise the DOE Office of Environmental Management (EM) on issues including site closure and stewardship. The Long-Term Stewardship Committee of EMAB identified four elements of an EM stewardship program: (1) site-specific stewardship plans; (2) a single, adequately staffed headquarters stewardship organization with responsibility for research, national decisions, and planning; (3) coordination with other DOE elements with stewardship needs; and (4) collecting and organizing relevant information and documenting current actions. The Committee recommended that EM adopt a national, written policy on long-term stewardship and detailed implementation guidance along with procedures to ensure a comprehensive analysis of all stewardship issues related to remediation decisions.

National Environmental Policy Institute. 1999 (September). Rolling Stewardship: Beyond Institutional Controls, Washington, D.C.

The goal of this report is to bring the issue of stewardship to the attention of key national, state, and local policy makers, particularly as it relates to public confidence in the reliability of present and future waste management strategies. The question the report poses to policy makers is what system of stewardship would be appropriate, given that sites requiring stewardship range from small, mildly contaminated brownfields to large and severely contaminated industrial and governmental sites. This in turn raises questions about the nature of a federal government role in stewardship, the roles of state, local, and tribal governments within stewardship and in relation to the federal government, and how stewardship should be funded.

English, M.R., and R. Inerfeld (Joint Institute for Energy and Environment, University of Tennessee, Knoxville, TN). 1999. Institutional Controls for Contaminated Sites: Help or Hazard? Risk: Health, Safety & Environment (Spring) 121-138.

The authors enumerate six requisite characteristics of institutional controls: effectiveness, appropriateness, verifiability, enforceability, durability, and flexibility. They then provide a critical review of four principal types of institutional controls: (1) deed restrictions based on common law, (2) deed restrictions based on state statutes, (3) local governmental land use controls such as zoning, and (4) other controls such as fencing, notification systems, and monitoring. They emphasize that deed restrictions should include explicit statements of intent, notice, and assignability and should, if possible, be grounded in statutory law; that local governmental land use controls should be a supplementary rather than a primary form of institutional control; and that institutional controls require oversight and enforcement conducted by entities that can be expected to remain in existence, with assignability of duties if they do not. The authors conclude that improvements in institutional controls are needed, because institutional controls are becoming an essential part of many remediation plans.

Environmental Law Institute. 1999. Protecting Public Health at Superfund Sites: Can Institutional Controls Meet the Challenge? Research Report, Environmental Law Institute, Washington, D.C. 121 pp.

The Environmental Law Institute (ELI) prepared this report with funding from the U.S. Environmental Protection Agency (EPA), but the views expressed are not necessarily those of EPA. The report investigates the effectiveness of institutional controls at four National Priorities List sites where there has been experience selecting and implementing various types of institutional controls: Cannons Engineering Corporation site in Bridegwater, Massachusetts, the Sharon Steel site in Midvale, Utah, the Cherokee Country site in Kansas, and the OronogoDuenweg Mining Belt site in Jasper County, Missouri. Some the findings include: (1) Institutional controls often depend on local government resources, authorities and agencies. (2) Cooperation among federal, state, and local governments in the implementation and operation of institutional controls is critical to their long-term efficacy. (3) Records of Decision (ROD) typically include only vague or general descriptions of institutional controls, although some RODs may be quite specific. (4) Institutional controls rely heavily on humans to implement, oversee, and administer them. (5) One method of reducing the risk of human error is to build redundancy into the institutional controls. (6) Institutional controls need to be monitored to assure that they are serving their intended purpose. (7) At some sites specific institutional controls are selected after the Record of Decision is signed. This takes these decisions out of the normal Superfund decision making process and, in particular, out of the normal process for public participation. (8) A fundamental element of the success of institutional controls is that community members to whom the controls apply understand their terms and the importance of compliance. (9) Records of Decision rarely include detailed information about how institutional controls will be implemented. (10) In addition to the direct costs of implementing institutional controls, their use can impose substantial indirect costs on communities, property owners, prospective purchasers and developers by limiting the way a site may be used.

Environmental Law Institute. 1999. Institutional Controls Case Study: Grand Junction. Research Report, Environmental Law Institute, Washington, D.C. 34 pp.

The Environmental Law Institute (ELI) prepared this report with funding from DOE, but the views expressed are not necessarily those of DOE. The study is a companion to the ELI 1998 case study on the DOE Mound Plant in Miamisburg, Ohio. Grand Junction, Colorado, was the site of processing of uranium ore that produced 2.2 million tons of tailings; the primary health risk associated with the tailings is exposure to radon gas, a radioactive decay product of radium that is naturally present in the tailings. Until the mid-1960s, the tailings were widely used as construction and fill materials, even within the City of Grand Junction. Institutional controls have been part of the Uranium Mill Tailings Remedial Action (UMTRA) program, including a database on sites and restrictions on use of groundwater. The report notes that the process of developing and implementing institutional controls has not

been coordinated between DOE, the State of Colorado, the U.S. Nuclear Regulatory Commission, and the City of Grand Junction. The public generally has not been concerned about risks associated with the tailings, resulting in low public involvement in the UMTRA project.

State and Tribal Government Working Group Stewardship Committee. 1999 (February). Closure for the Seventh Generation.

Based on the deficiencies it found in the DOE current efforts to provide long-term protection of human health, the environment, and cultural resources, the committee made the following recommendations, among others. DOE should fully explain and quantify the long-term cost and funding required to maintain long-term institutional controls and it should acknowledge that decisions about long-term institutional controls will not be considered final until it has implemented an acceptable stewardship program. Each DOE site should develop a stewardship plan that defines constraints, costs, and implementation mechanisms. The DOE should retain ownership of lands at which institutional controls are necessary unless the appropriate state or tribe can certify that appropriate mechanisms are in place to enforce land use restrictions against subsequent users.

Applegate, J.S., and S. Dycus. 1998 (November). Institutional Controls or Emperor's Clothes? Long Term Stewardship of the Nuclear Weapons Complex. The Environmental Law Reporter ELR News & Analysis 28(11): 10631-10652.

The authors describe the CERCLA and RCRA framework affecting DOE waste management, the waste configuration options available to DOE (e.g., disposal facility, passive isolation in place, monitored retrievable storage), and the qualities of a long-term stewardship program to manage the DOE long-term wastes. Among these qualities are transparency (full and open assessment of risks), life-cycle accounting, documentation of nature and location of contaminants, identification of stewards, enforceability, redundancy, public involvement, sustainability, and flexibility and responsiveness. An institution capable of providing long-term stewardship of wastes will need to perform a generally continuous set of functions, raise funds to sustain those functions, transmit knowledge of itself and its values to subsequent generations, and maintain a core identity while adapting to changing circumstances.

U.S. Department of Energy. 1998 (June). Proceedings of Long-Term Stewardship Workshop. Grand Junction Office CONF-980652, Grand Junction, Colo. 198 pp.

The DOE Grand Junction Office held a workshop on long-term stewardship on June 2-3, 1998, in Grand Junction, CO. The stated goal of the workshop was to share ideas and evaluate solutions to problems associated with long-term custodianship of radioactive waste disposal sites. The proceedings of the workshop included eighteen papers, grouped into the following categories: regulatory perspectives, project management and records management, technical issues, performance monitoring and stakeholder issues, and site transfer protocols. Approximately half of the authors are affiliated with DOE or DOE contractors; the remainder are affiliated with state or federal regulators or with organizations in Germany, Australia, and Estonia.

Environmental Law Institute. 1998. Institutional Controls Case Study: Mound Plant. Research Report, Environmental Law Institute, Washington, D.C. 40 pp.

The Environmental Law Institute (ELI) prepared this report with funding from DOE, but the views expressed are not necessarily those of DOE. To help inform decision-making across the DOE complex, ELI studied the ongoing decision-making process—particularly the use of institutional controls as a component of cleanup and reuse—at the DOE Mound Plant in Miamisburg, Ohio. (In 1994, DOE decided to end defense production activities at the site. The site is intended for industrial reuse, and reuse has begun on portions of it.) The authors observe that issues have arisen concerning the enforceability of some of the site 's deed restrictions, including what entities would be able to enforce them and the effects of the restrictions on marketing the site for reuse. They note that some

institutional controls must be developed early in the transition to reuse, particularly if the controls rely on property concepts. They also note that consideration should be given to other institutional controls as a substitute or supplement to deed restrictions.

International City/County Management Association. 1998 (April). Local Governmental Use of Institutional Controls at Contaminated Sites. Washington, D.C.

This report is based on a survey of 27 local government officials as well as five interviews with state officials. The report concludes by identifying six recommendations in areas that, according to the report, appear to need the most improvement: (1) minimize reliance on institutional memory, (2) clarify jurisdictional issues and improve coordination between state and local governments, (3) provide training and education to local governments regarding the role and use of institutional controls, (4) improve the quality and increase the use of mechanisms for recording institutional controls, (5) improve the longevity of institutional controls, and (6) improve and increase enforcement efforts by providing adequate code enforcement resources.

ICF Kaiser Consulting Group. 1998 (March). Managing Data for Long-Term Stewardship, Working Draft. Washington, D.C.

This report was prepared for the DOE Office of Strategic Planning and Analysis as an information resource but does not represent official DOE policy or guidance. It is concluded in the report that, while most types of information needed for “long-term stewardship” are already being generated, there are a number of problems. For example, requirements do not specify what constitutes stewardship data, and information management requirements are not coordinated with property transfer requirements; some data will not be preserved as long as necessary for stewardship purposes (in fact, most records of facilities and site infrastructure are required to be destroyed when facilities are demolished or infrastructure is declared obsolete); some data will be preserved adequately but may be forgotten, not be easily located, or accompanied with insufficient descriptive information to be usable; and even when knowledge is preserved and users know where information is located, it may take too long or be too expensive to gain access to stewardship data.

Environmental Law Institute. 1998 (March 2). Preliminary Memorandum: Institutional Controls over Land Uses at Superfund Sites—Draft. Washington, D.C. 17 pp.

This memorandum was prepared under a cooperative agreement with the U.S. Environmental Protection Agency but does not represent official EPA views. In the memorandum, evaluations based upon hypothetical (not actual case studies) are provided of the effectiveness of regulatory controls (zoning, groundwater withdrawals); property-based controls (covenants, easements); and government-supplied notice. It is concluded that each of these types of institutional control has both strengths and weaknesses, and that in practice, the efficacy of a particular control will vary from site to site depending upon numerous factors.

U.S. Environmental Protection Agency. 1998 (March). Institutional Controls: A Reference Manual, Workgroup Draft. Workgroup on Institutional Controls. Washington, D.C.

This manual was prepared by U.S. EPA staff, including various attorneys and others in headquarters and regional offices. The manual is intended as an aid, not as policy guidance. It identifies various legal and other vehicles that can serve as institutional controls and discusses legal and practical considerations that may arise in putting such controls in place. In addition, it contains recommendations that the workgroup believes can improve future efforts to evaluate and implement institutional controls. Key recommendations are as follows: (1) institutional controls should be evaluated carefully before the remedy is chosen, (2) goals of institutional controls should be described clearly in the remedial decision document, (3) state and local agencies have a vital role in developing, establishing and maintaining effective and enforceable institutional controls, (4) misconceptions about the effect of simply

specifying use restrictions in a deed should be corrected, (5) the term “deed restriction” should be used carefully, (6) the limitations of deed notices should be clearly understood, and (7) where it is important for the control to run with the land, it is generally not advisable to rely on a consent decree alone, without execution of a separate instrument such as an easement.

Probst, K.N., and M.H. McGovern. 1998 (June). Long-Term Stewardship and the Nuclear Weapons Complex: The Challenge Ahead. Center for Risk Management, Resources for the Future, Washington, D.C. 67 pp.

The research for this report was funded in large part by the DOE Office of Environmental Management, but the views expressed do not represent official DOE policy. The report addresses the question of what is needed in terms of a “long-term stewardship” program for DOE former weapons production sites. It concludes that the primary locus for stewardship should be the federal government, with involvement of other entities such as states, localities, tribal nations, and the general public. It recommends that (1) Congress should legislatively require the creation of a stewardship program for all contaminated sites requiring “post-closure care” that are regulated under the nation's environmental laws; (2) EPA should, in its regulations, clearly define post-closure responsibilities at Superfund sites on the part of federal, state, and local governments, and regulated entities; (3) the President's Council on Environmental Quality, with EPA, should convene an interagency task force to develop government-wide policy on long-term stewardship at both federal and private sites; and (4) the Secretary of Energy should create a high-level, diverse task force to develop a stewardship mission for DOE, and to make specific recommendations for integrating the costs and challenges of long-term stewardship into the major DOE decision and budgeting processes.

English, M.R., D.L. Feldman, R. Inerfeld, and J. Lumley. 1997 (July). Institutional Controls at Superfund Sites: A Preliminary Assessment of their Efficacy and Public Acceptability. Joint Institute for Energy and Environment, University of Tennessee, Knoxville, Tenn. 100 pp.

This report was prepared under a cooperative agreement with the U.S. Environmental Protection Agency's Office of Policy, Planning, and Evaluation but does not represent official EPA policy or guidance. The report focused on an evaluation of drivers for the public acceptability or non-acceptability of institutional controls at Superfund sites but included a preliminary assessment of the efficacy of institutional controls, based upon analyses in the legal and other literature. In the report, it was concluded that, based upon the small sample of cases studied, public attitudes toward institutional controls did not appear to be a significant barrier in most cases; however, there is reason for attention to and further research on the long-term efficacy of many institutional control measures.

Hersh, R., K. Probst, K. Wernstedt, and J. Mazurek. 1997 (June). Linking Land Use and Superfund Cleanups: Uncharted Territory. Center for Risk Management, Resources for the Future, Washington, D.C. 107 pp.

This research for this report was supported in part by the U.S. Environmental Protection Agency's Office of Emergency and Remedial Response and Office of Policy Analysis, but the views expressed do not represent official EPA policy. The report addresses the concept of linking land use to remedy selection in the Superfund program. It sets forth the following key findings and recommendations: (1) agreement about the future use of a site may not lead to agreement about the appropriate remedy or cleanup standards for that site, (2) it is often not possible to determine the “anticipated future use” of a site, and, in fact, the remedy selection process can lead to unanticipated land uses, (3) institutional controls are often critical to ensuring long-term protection; often neglected and left to the end of the remedy selection process; and subject to legal, administrative, and social pressures that may limit their effectiveness, (4) linking cleanup decisions to land use considerations places an even heavier responsibility on EPA to effectively involve the public in the remedy selection process, (5) EPA should revise its regulations to address the role of land use in remedy selection, including incorporating the development of

institutional controls into the formal remedy selection process, and (6) in consultation with state and local governments, EPA should develop a strategy (ultimately codified in the National Contingency Plan) for ensuring effective long-term regulatory oversight of Superfund sites where contamination remains at levels that present a risk to public health even after the remedy is “complete.”

International City/County Management Association. 1996. Cleaning Up After the Cold War: The Role of Local Governments in the Environmental Cleanup and Reuse of Federal Facilities. Research and Development Department, Washington, D.C. 123 pp.

This study was conducted under a cooperative agreement with the U.S. Environmental Protection Agency but does not necessarily represent the views of EPA. Using 11 case studies (seven Department of Defense sites and four DOE sites) as a basis, the study explores the roles and responsibilities of local governments in communities that host federal facilities with defense missions. Specifically, the authors analyze the roles and responsibilities of local governments in site cleanup and future use decisions. The authors provide a number of recommendations to facilitate more effective involvement of local governments in these decisions. The focus of these recommendations, on the one hand, is the need for federal officials to acknowledge that local governments have an important role to play and should be kept informed and involved, and, on the other hand, is the need for local governments to assume a more active and authoritative role in decisions concerning future land use restrictions, as well as in monitoring and oversight activities.