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Weapons of Mass Destruction (WMD)

[CRS Issue Brief for Congress]

90074: Nuclear Weapons Production Complex: Environmental Compliance and Waste Management

Updated November 21, 1996

Mark Holt
Environment and Natural Resources Policy Division

CONTENTS

SUMMARY

MOST RECENT DEVELOPMENTS

BACKGROUND AND ANALYSIS

Weapons Complex Contamination
Overview of DOE Cleanup Program
DOE Environmental Problems
Environmental Restoration
High-level Waste
Transuranic Waste
Low-level Waste
Nonradioactive Hazards
Waste Management
WIPP
Storage Facility Problems
Compliance With Environmental Laws
Federal Facilities Compliance and Cleanup Agreements
Other Administrative Enforcement Tools
Court Action
Enforcement Against DOE Employees and Contractors
Cleanup Standards and Land-Use Planning
Cleanup and Waste Management Funding

LEGISLATION

CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

FOR ADDITIONAL READING


SUMMARY

The aging nuclear weapons production complex, managed by the Department of Energy (DOE), faces enormous environmental and waste management problems. Several hundred billion dollars may be needed to clean up leaking waste pits, groundwater contamination, growing accumulations of radioactive waste, and uncontrolled liquid discharges at DOE facilities. DOE's cleanup program is carried out by the Office of Environmental Management (EM). Cleanup funding escalated rapidly after the end of the Cold War, although it has plateaued at about $6 billion per year under the Clinton Administration.

Congress has expressed growing concern about the rising costs of DOE's cleanup program. A major cost driver has been environmental regulations and cleanup schedules that the Department is required to meet, although DOE also has been accused of poorly managing many projects and allowing costs to escalate unnecessarily. DOE's environmental program consists of a variety of major activities, including environmental restoration, waste management, development of new cleanup technology, and stabilization of surplus nuclear material and facilities. Environmental restoration involves cleanup and mitigation of past environmental contamination and uncontained waste sites, including decontamination and decommissioning of permanently closed DOE facilities.

Waste management, currently the largest category, involves disposing of stored and newly generated waste. Highly radioactive defense waste is to be disposed of in an underground repository proposed for civilian reactor spent fuel at Yucca Mountain, Nevada. Less-radioactive defense waste that is contaminated with long-lived plutonium is planned for disposal in a repository near Carlsbad, NM, called the Waste Isolation Pilot Plant.

The nuclear materials stabilization program takes control of nuclear facilities no longer needed by DOE defense programs and other offices. As its name implies, the program's goal is to stabilize the radioactive contents of such facilities so that little further active maintenance is required. Such surplus facilities may eventually be demolished or transferred to other uses.

Much of the DOE cleanup effort is mandated by major federal environmental statutes, such as the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund). Waivers of sovereign immunity in those laws make nuclear defense plants and other federal facilities subject to state and federal environmental enforcement, including lawsuits by states and citizens. The Federal Facilities Compliance Act (P.L. 102-386) clarifies that federal agencies are subject to state and local fines and penalties under RCRA.

Environmental enforcement efforts to date have relied primarily on "federal facilities compliance agreements" among the Environmental Protection Agency, state regulators, and DOE. Some of those compliance agreements have been renegotiated to reflect unexpected technical obstacles and greater-than-anticipated contamination at some sites. In locations where complete cleanup is delayed, interim remedies may be implemented to alleviate near-term hazards to human health and the environment.


MOST RECENT DEVELOPMENTS

The President on September 30 signed an FY1997 funding bill for the Department of Energy (DOE) environmental management program, which is responsible for managing waste and cleaning up environmental contamination at DOE sites. The Energy and Water Development Appropriations bill for FY1997 (H.R. 3816, H.Rept. 104-782, P.L. 104-206) provides $6.4 billion for the program, slightly below the Administration request.

The President on September 23 signed the National Defense Authorization Act for FY1997 (P.L. 104-201), which authorizes funding for cleanup and waste management projects at DOE defense-related facilities. The conference report for the bill was approved by House on August 1 and the Senate on September 10 (H.R. 3230, H.Rept. 104-724). The legislation includes provisions to establish greater authority by DOE site managers over cleanup activities and to speed the development of the Waste Isolation Pilot Plant (WIPP), a planned New Mexico disposal facility for plutonium-contaminated (transuranic) waste from the nuclear weapons program.

DOE submitted a WIPP compliance certification application to the Environmental Protection Agency (EPA) on October 29. The application contends that WIPP would meet EPA's certification criteria for groundwater protection, release of radioactive material, and other environmental standards. EPA is expected to rule on the application within one year. DOE on November 20 described plans for disposing of 6.2 million cubic feet of transuranic waste at WIPP over 35 years at a total cost of $19 billion.


BACKGROUND AND ANALYSIS

Weapons Complex Contamination

Built in Cold War secrecy and operated for decades in relative obscurity, the nation's nuclear weapons production complex is now the focus of intense public scrutiny. Contaminated groundwater, radioactive air emissions, leaking nuclear waste tanks, and improper chemical waste disposal are among the environmental problems acknowledged by the Department of Energy (DOE), which owns the weapons plants. Correcting the situation could cost several hundred billion dollars during the next 30 years.

With the collapse of the Soviet Union, most production in the nuclear weapons complex has ended. Environmental cleanup and waste management has instead become the primary mission of many DOE installations, an effort driven largely by federal and state environmental laws. As the expense of cleaning up the DOE weapons complex has escalated, Congress has faced growing questions about the Department's management of the cleanup effort, about the stringency of the environmental requirements it must meet, and about the nation's ability to pay for the program as currently envisioned.

Overview of DOE Cleanup Program

DOE's environmental cleanup effort is carried out by the Office of Environmental Management (EM), established in 1989 and currently headed by DOE Assistant Secretary Alvin Alm. DOE's June 1996 Baseline Environmental Management Report estimates the total cost of environmental restoration, waste management, and related environmental activities at Department facilities for the next 75 years. Those cost estimates range from $189 billion to $265 billion, with a mid-range estimate of $227 billion (in constant 1996 dollars).

According to the report, 80 percent of contaminated DOE sites are to be cleaned up by 2021. Major factors affecting the estimate include assumptions about future land use, particularly whether land must be clean enough for unrestricted activities, and the pace of cleanup projects, according to the report.

Waste management -- the storage, treatment, and disposal of waste produced during nuclear weapons production and future cleanup activities -- is projected to cost $111 billion during the next 75 years, according to the Baseline Report. Environmental restoration -- cleaning up past environmental contamination at DOE sites -- is expected to cost $63 billion.

A growing task of the EM office is the maintenance of numerous weapons complex facilities that have become surplus with the end of the Cold War. Within the EM office, the Office of Nuclear Materials and Facilities Stabilization takes control of retired DOE facilities until plans for their disposition can be completed, such as conversion to another use or demolition. The Office's goal is to stabilize hazards in the surplus facilities so that active maintenance can be minimized. The Baseline Report estimates that such stabilization activities will cost $21 billion during the 75- year cleanup period.

Because of the need for faster and less expensive technical solutions to DOE's widespread environmental problems, the Environmental Management office established the Office of Technology Development in 1989. With a budget of about $300 million in FY1997, the DOE environmental technology program is developing new methods of cleaning up groundwater and soil, advanced waste treatment techniques, and ways to minimize waste generation. The Baseline Report estimates that such activities will cost $12 billion during the next 75 years. The remaining $20 billion in projected costs would cover program planning and management and facility overhead expenses.

Environmental regulators and others have charged that much of the growth in DOE's environmental budget results from poor oversight of cleanup contractors, waste, and other Departmental mismanagement. They contend that if the program were managed properly, DOE could meet its regulatory commitments with the lower funding growth that is expected in future years. In response, the Clinton Administration has begun changing the DOE contracting system, such as by increasing contractors' risks in return for higher potential profits.

DOE currently is planning to "privatize" many of its waste treatment activities, to make hazardous waste suitable for storage and disposal. Under that plan, private firms would build and operate waste treatment facilities, and DOE would pay fees based on the amount of its waste that the firms successfully treated. At a DOE conference on the privatization initiative held November 29, 1995, it was estimated that more than half the Department's treatment of "mixed" low-level radioactive and chemical waste would be handled by private firms. Funding for the privatization initiative is included in DOE's FY1997 budget.

An initiative to increase the authority of local DOE managers over cleanup decisions was included in the National Defense Authorization Act for FY1997 (P.L. 104-201). Those provisions require the Secretary of Energy to appoint a site manager for each defense nuclear facility. Each site manager would have authority to hire environmental contractors, modify existing contracts, request funding reprogramming, and negotiate amendments to site-related agreements with environmental regulators.

DOE's defense production complex consists of 17 major facilities in 12 states for design, construction, and testing of nuclear warheads, and production of naval reactor fuel. (Different numbers of facilities are sometimes cited, depending on what is counted as a "facility" and whether certain facilities are considered part of the defense complex.) Key installations include the Hanford Site near Richland, WA, the Savannah River Site near Aiken, SC, the Rocky Flats Plant near Denver, CO, the Idaho National Engineering Laboratory (INEL) near Idaho Falls, and the reservation at Oak Ridge, TN.

DOE Environmental Problems

As a large-scale industrial enterprise, the DOE defense production complex faces a broad array of environmental problems, involving past disposal practices as well as continuing pollution. Many of DOE's environmental troubles, such as releases of hazardous chemicals and leaking underground fuel tanks, are similar to those of other manufacturers. However, the degree of radioactivity involved in many nuclear weapons production processes creates a unique complication. DOE faces the enormous task of cleaning up previous environmental contamination, controlling ongoing pollution, and properly disposing of its waste.

Environmental Restoration

DOE estimates that 10,000 individual cases of contamination of soil, groundwater, and buildings currently exist throughout the nuclear weapons production complex and other Department facilities. Cleaning up that contamination -- the job of DOE's environmental restoration program -- is likely to be one of the most expensive elements of the Department's environmental effort, involving a great deal of uncertainty.

A wide variety of contamination can be found at DOE sites, including high-level radioactive waste, transuranic waste, low-level radioactive waste, and nonradioactive hazardous chemicals. Conventional methods of environmental restoration include removal of contaminated material, pumping and treating of groundwater, and capping buried waste to reduce rainwater intrusion. Because many of those methods involve enormous expenses, DOE is investigating new technologies and treatment methods, such as the melting and solidification of underground waste with powerful electrodes.

High-level Waste. The highly radioactive liquid left over from reprocessing irradiated nuclear material (to extract plutonium and other fissile elements) is called "high level" waste. DOE's three reprocessing plants, located at Savannah River, Hanford, and INEL, have accumulated a total of 80 million gallons of high-level waste. Most of DOE's high-level waste is stored in intact underground tanks and bins, but one million gallons are estimated to have leaked from 67 singleshell storage tanks (SSTs) at Hanford. When tank storage was inadequate during the mid-1950s, some liquid high-level waste was discharged directly into the ground. As noted by an official history of the Atomic Energy Commission (one of DOE's predecessors), "Military requirements clearly took precedence over environmental safeguards."

Because high-level waste will remain dangerously radioactive far beyond the anticipated life of today's storage facilities, it must eventually be treated or solidified for permanent disposal (discussed in the later section on Waste Management). But the high-level waste that has already leaked from the Hanford tanks or has been deliberately discharged will require an environmental restoration program that has yet to be designed. Large amounts of contaminated reactor cooling water have also leaked and will require cleanup.

The first of Hanford's 149 single-shell tanks was filled with high-level waste beginning in 1944, after the startup of Hanford's plutonium production reactors. Leaks were discovered in 1959, and construction of improved, double-shelled tanks began 9 years later. In 1972, the plant's operators began pumping liquid from the leaking single shell-tanks to the new double-shell tanks, but nearly 7 million gallons remain, according to GAO.

Some irradiated reactor material has been buried directly in the ground, according to a DOE report released December 7, 1993. Uranyl sulfate from an experimental reactor at Oak Ridge National Laboratory in Tennessee was placed in seven 17-footdeep wells drilled at the site and covered with concrete in the mid-1960s. Sludge from spent fuel storage basins may have been buried at the Hanford site, according to the report. Those practices, the report warned, may result in "uncontrolled and undetected release of radioactive materials to the environment."

Transuranic Waste. After high-level waste, "transuranic waste" is the type of DOE radioactive waste that generally requires the strictest disposal precautions. Transuranic (TRU) waste is far less radioactive than high-level waste but contains extremely long-lived radioactive elements -- particularly plutonium -- that must be permanently isolated from the environment. Some contains enough radioactivity to require special shielding and remote handling. TRU waste includes discarded protective clothing and other equipment, and hazardous liquids contaminated with plutonium.

Since 1970, DOE has stored its TRU waste at various sites around the country in preparation for permanent underground disposal (see waste management, below). Before 1970, transuranic waste was buried in trenches - - sites that now are expected to require extensive remedial action. DOE acknowledges that some buried TRU waste containers have disintegrated and that, in the nuclear program's early years, liquid TRU waste was poured into the ground at Hanford, Oak Ridge, and Los Alamos National Laboratory in New Mexico. Much of the post-1970 "retrievably stored" TRU waste may also have caused environmental contamination.

DOE estimates that more than 500,000 cubic meters of transuranic waste have been buried at seven facilities, with nearly half at the Nevada Test Site's "Plutonium Valley," where warhead safety tests were conducted. Other buried TRU waste is located at Hanford, INEL, Los Alamos, Oak Ridge, Savannah River, and New Mexico's Sandia National Laboratory.

Low-level Waste. Generally the least hazardous type of radioactive waste generated by DOE defense activities is "low-level" waste -- trash and other solid waste contaminated with relatively short-lived, or extremely low concentrations of long-lived, radioactive particles. Because the vast majority of its radioactivity decays to background levels within a few hundred years, low-level waste that is securely packaged in solid form is allowed to be buried in properly constructed trenches.

DOE estimates that nearly 2.5 million cubic meters of low-level waste have been buried at its facilities, predominantly at Hanford, Savannah River, and Oak Ridge. Much of the low-level waste at DOE's older burial sites is likely to require remedial action, although the nature of the cleanup has yet to be determined.

Much of the danger from DOE low-level waste (as well as TRU and high-level waste) is posed not just by its radioactivity, but by nonradioactive chemical waste mixed with it. The large amounts of such "mixed waste" are a unique DOE problem. Under the Atomic Energy Act, DOE is responsible for ensuring safe disposal of its own low-level and TRU radioactive wastes, but EPA and the states enforce the Resource Conservation and Recovery Act's (RCRA's) requirements for hazardous waste disposal. Unlike low-level waste, many hazardous chemicals never decay to safe levels, so RCRA's disposal standards are substantially tougher than DOE's lowlevel waste requirements. In fact, land disposal of several types of hazardous waste is banned altogether.

Residual radioactive contamination has been found at dozens of non-federal sites, typically former industrial facilities, that were used during the early years of the U.S. nuclear weapons program. EM's Formerly Utilized Sites Remedial Action Program is designed to identify and clean up those locations. (For more information, see Formerly Utilized Sites Remedial Action Program -- A Fact Sheet, 93- 1031 ENR.)

Nonradioactive Hazards. Like other large industrial operations, the nuclear weapons production complex creates vast quantities of nonradioactive hazardous waste, much of which has been disposed of improperly, producing a wide variety of chemical contamination of the environment. Examples cited by DOE are acids, nitrates, oils, heavy metals, fluorides, and explosives. Much of the environmental contamination found by DOE to pose the greatest hazard to public health and the environment comes from nonradioactive waste.

An example of a potentially severe non-radioactive environmental hazard is mercury contamination at the Y-12 plant on DOE's Oak Ridge site. Mercury was used at the plant beginning in the early 1950s to enrich lithium for nuclear weapons. Although the contamination has long been a public concern, complete data about the problem has been withheld, because of the secrecy surrounding the nation's production of weapons-grade lithium. But as part of a declassification initiative, DOE revealed on December 7, 1993, that 24 million pounds of mercury was used at the Y-12 plant. Based on that data, it has been estimated that about 750,000 pounds was released into the environment, much of it into a nearby creek.

Waste Management

Since the beginning of the nuclear weapons program, the primary method of handling the most dangerous types of radioactive waste has been interim storage. As a result, large amounts of stored radioactive and other hazardous waste have accumulated at many DOE facilities. Large quantities of hazardous and sanitary waste produced by the nuclear weapons production complex, as well as waste generated by environmental restoration projects, also require proper treatment and disposal. Most of DOE's waste management activities are required by environmental laws, primarily RCRA.

Major facilities planned or under construction for the handling of high-level waste include at least three vitrification plants, in which the highly radioactive liquid is dissolved in molten glass and poured into stainless steel canisters. Such plants include the Defense Waste Processing Facility (DWPF) at Savannah River and similar projects at West Valley, NY, and Hanford.

The approximately $2.5 billion DWPF officially began operating March 12, 1996; solidifying the more than 30 million gallons of high-level waste at Savannah River is expected to take at least 25 years. The first vitrified waste canister was produced at West Valley on July 7, 1996; completion of the program is expected by early 1999 at a total cost of about $1.5 billion. Similar treatment facilities may be required at INEL, where powdered high-level waste currently is stored in bins. Once the highlevel waste is treated and solidified, it is to be placed in a geologic repository planned at Yucca Mountain, Nevada, a facility being developed by a separate DOE office.

DOE issued a draft programmatic environmental impact statement (PEIS) in August 1995 for managing the treatment, storage, and disposal of the Department's radioactive and hazardous waste. The PEIS examines alternative management strategies ranging from leaving waste at the locations where it is generated and currently stored, establishing regional waste facilities, and centralizing waste management at one or two national sites.

WIPP. The Waste Isolation Pilot Plant (WIPP) near Carlsbad, New Mexico, has long been one of the most controversial DOE waste management projects. Designed as a disposal site for defense-related TRU waste that is currently in interim storage, the WIPP facility is to consist of a grid of caverns and tunnels excavated in a thick salt bed 2,160 feet underground. More than $1 billion has been spent on the project since it was authorized in 1980 (P.L. 96-164). One of eight planned repository sections has been excavated so far, along with experimental areas and four vertical shafts.

Congress established the regulatory framework for the facility with the WIPP Land Withdrawal Act of 1992 (P.L. 102-579), which transferred the federally owned site from the Secretary of the Interior to the Secretary of Energy. The Environmental Protection Agency must determine whether WIPP complies with general radioactive waste disposal standards (40 CFR 191), using specific WIPP certification criteria (10 CFR 194). New Mexico and Texas sued EPA in April 1996, alleging that the agency adopted substantial changes in the WIPP certification criteria without following proper procedures.

The FY1997 National Defense Authorization Act, signed by the President September 23, 1996 (P.L. 104-201), exempts WIPP from hazardous waste disposal requirements under the Resource Conservation and Recovery Act, but otherwise retains EPA's regulatory role. Prerequisites for beginning waste disposal at WIPP are simplified and a congressional notification period reduced. DOE received greater authority to determine whether the disposal system, including natural and engineered barriers to waste leakage, would comply with environmental requirements. November 30, 1997, was established as DOE's goal for the start of waste disposal at WIPP.

DOE transmitted its WIPP compliance certification application to EPA October 29, 1996, and EPA's decision is expected in a year. DOE issued a draft supplemental environmental impact statement (SEIS) November 20, 1996, that outlined the Department's transuranic waste disposal plans. According to the SEIS, the Department plans to begin filling WIPP with 6.2 million cubic feet of transuranic waste in November 1997 and close the repository about 35 years later. Disposal costs during that period are expected to total $19.1 billion.

The National Research Council issued a report October 23, 1996, concluding that WIPP would probably cause lower human exposure to radioactivity than allowed by U.S. and international standards. Future human disturbance of the WIPP site was found to be the only credible mechanism for releasing radioactivity, and the report concluded that the repository could be constructed to reduce such releases.

Storage Facility Problems. A DOE study released December 7, 1993, described major problems at many aging Department facilities that store spent nuclear fuel and other irradiated nuclear materials. Much of the material is stored in pools of water, but a wide variety also has been placed in dry storage and in buried containers.

Storage facilities posing the most immediate hazard, according to the report, include unlined concrete pools at Hanford, Savannah River, and the Idaho National Engineering Laboratory (INEL). Corroding spent fuel in the Hanford pool is releasing plutonium and other radioactive materials into the pool water, some of which has leaked into the environment. Corrosion in the other pools is causing similar problems, the report found. DOE announced May 30, 1995, that spent fuel storage would be consolidated at three sites: 2,103 metric tons at Hanford, 426 metric tons at INEL (including naval reactor spent fuel), and 213 metric tons at Savannah River (including most U.S.-origin spent fuel from foreign research reactors).

DOE revealed in December 1993 the total amount of plutonium stored within the weapons complex, excluding plutonium in nuclear warheads and components. The plutonium exists in a variety of forms, including in mixtures with waste material. Storage of the plutonium is generally in facilities separate from the irradiated material storage facilities described above.

The stored plutonium includes 12.9 metric tons at the Rocky Flats Plant, 11 metric tons at Hanford, 4.5 metric tons at INEL, 2.6 metric tons at Los Alamos National Laboratory, and 2.1 metric tons at Savannah River. Altogether, DOE has produced 89 metric tons of weapons-grade plutonium and 13 metric tons of reactor-grade plutonium, much of which is expected to be declared surplus. A 1995 study by the National Academy of Sciences recommended that surplus DOE plutonium be mixed with high-level waste for disposal or turned into nuclear reactor fuel.

Compliance With Environmental Laws

As a general rule, DOE and other federal agencies are subject to environmental standards and procedural requirements (such as disposal permits) established by local, state and federal law. Environmental enforcement against federal facilities is made possible by broad waivers of sovereign immunity contained in most major federal environmental statutes.

The nuclear character of most of DOE's defense facilities significantly complicates the environmental regulatory scheme. Under the Atomic Energy Act of 1954, the Atomic Energy Commission (AEC) exercised broad authority over its own nuclear facilities. According to DOE's first five-year cleanup plan, "The AEC and its successor agencies, including DOE, interpreted the language of the AEA to mean that they were self-regulating with respect to the environment." But over the years, environmental statutes and lawsuits have drastically curtailed DOE's ability to regulate its own operations, including radioactive emissions.

However, under the Atomic Energy Act, DOE still establishes and enforces its own requirements for radiological safety and health within the boundaries of the Department's nuclear facilities, including decontamination and decommissioning. Management and disposal of radioactive DOE waste, including the radioactive constituents of mixed waste, are also regulated by the Department, except for planned high-level waste storage and disposal sites to be licensed by the Nuclear Regulatory Commission (NRC). Legislation was proposed in the 103rd Congress (H.R. 3920) to require NRC licensing of all new DOE nuclear facilities, and Energy Secretary Hazel O'Leary established an Advisory Committee on External Regulation of DOE Nuclear Safety in October 1994 to examine options for the safety oversight of the Department's nuclear activities. The panel's final report, completed December 22, 1995, and released to the public a month later, recommended external regulation of virtually all DOE nuclear activities and, to minimize regulatory overlap, the designation of a "lead regulator" for each activity.

A prospective issue is whether federal facilities could be held responsible for environmental violations if sufficient funding for the necessary cleanup and pollution control measures was not appropriated. For the nuclear weapons complex, several hundred billion dollars may ultimately be required to achieve full compliance. Most major environmental laws requiring federal compliance allow an exemption if Congress does not provide sufficient appropriations, but such exemptions have never been invoked.

At least seven federal environmental statutes contain explicit provisions covering federal facilities. Most contain similar language to make federal agencies and employees subject to administrative and judicial environmental enforcement -- not just of federal law but of related state and local requirements as well. Major statutes include the Solid Waste Disposal Act (as amended by RCRA and subsequent amendments to RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund), the Clean Air Act, and the Clean Water Act.

Another significant environmental law that applies to DOE is the National Environmental Policy Act (NEPA), which requires federal agencies to consider the environmental ramifications of their actions and prepare environmental impact statements on those that may significantly affect the environment. DOE is preparing a "Programmatic Environmental Impact Statement" (PEIS) on the overall direction of the waste management program; a draft was issued in August 1995.

Federal Facilities Compliance and Cleanup Agreements

When severe violations of environmental laws are discovered at a DOE facility, the Department typically enters negotiations with state and EPA regulators on how and when the requirements will be met. If the negotiations are successful, the actions that DOE promises to implement are spelled out by a compliance agreement, which is called a federal facilities agreement (FFA) or interagency agreement (IAG) under CERCLA, or a federal facilities compliance agreement (FFCA) under RCRA.

Superfund contains the most specific provisions for how compliance agreements must be implemented, but the process has been used for all major environmental laws -- particularly RCRA. Recent DOE compliance agreements establish schedules for developing and implementing remedial action plans, prescribe methods for resolving disputes about the terms of the agreements, and guarantee facility access to state and federal inspectors. It is specified that DOE can be taken to court (by non-federal parties) to enforce provisions of the agreements, which often include waivers for lack of sufficient appropriations. However, DOE promises to "take all necessary steps and make efforts to obtain timely funding to meet its obligations."

The growing number of DOE compliance agreements has prompted criticism that cleanup priorities are being established disjointedly, through site-by-site negotiations, instead of through a comprehensive plan for all DOE facilities. To solve that problem, DOE has begun a comprehensive effort to identify imminent exposure risks, to use existing methods to measure near-term hazards, and to develop data and methods of measuring long-term risks. DOE issued a report June 19, 1995, classifying risks at its facilities as low, medium, and high, and finding that 88% of the DOE environmental cleanup budget request for FY1996 would address high and medium risks.

At sites found to pose immediate exposure threats or where contamination is spreading, DOE now is proposing to implement interim remedies as soon as possible, rather than waiting for design and approval of costlier, permanent solutions. In many cases, under that new strategy, permanent cleanup might be delayed until better technologies can be developed.

DOE announced a major renegotiation of the Hanford "Tri-Party" compliance agreement October 1, 1993 -- an agreement that may set a pattern for other sites in the nuclear weapons complex. The renegotiated agreement allows substantial delays in some major projects, particularly a vitrification plant for high-level waste. Projects considered more urgent, such as treatment of groundwater that could contaminate the Columbia River, would be accelerated. The new Tri-Party Agreement was signed January 25, 1994.

A streamlined draft site cleanup agreement was signed by DOE, EPA, and state officials for the Rocky Flats site. The draft agreement would consolidate numerous federal and state environmental regulatory requirements and clearly divide enforcement responsibilities between EPA and the state. A limited number of cleanup deadlines are to be established before the start of each fiscal year.

Issues involving cleanup of federal facilities were addressed by the Federal Facilities Environmental Restoration Dialogue Committee in its final report, issued in April 1996. The committee comprised federal, state, and local environmental regulators, citizen group representatives, and federal agencies with environmental problems. Key recommendations involve community involvement in cleanup decisions, priority setting, and allocating budget shortfalls. The procedures worked out by the committee are intended to reduce friction between environmental regulators and regulated federal agencies, particularly when funding proves inadequate to meet all mandatory cleanup milestones.

Other Administrative Enforcement Tools

EPA's federal facility enforcement options vary by statute and, in some cases, by the type of violation. Individual agency employees are granted some protection from civil enforcement, but EPA can investigate suspected criminal violations, such as at Rocky Flats, and turn them over to the Justice Department for prosecution.

Legislation passed by the 102nd Congress (P.L. 102-386 -- the Federal Facility Compliance Act) explicitly provides that EPA has the power to issue unilateral administrative order under RCRA to other federal agencies. States have even broader latitude than EPA in enforcing environmental laws at federal facilities. P.L. 102-386 specifically waives federal sovereign immunity against RCRA enforcement through injunctions, administrative orders, and administrative or judicial civil penalties.

Court Action

States and citizens, unlike EPA, have clear authority to sue federal agencies under the "citizen suits" provisions of major federal environmental laws. Such suits can be used to enforce compliance with federal and state administrative orders, requirements and permits, to halt dangers to the public (under certain statutes), and possibly also to enforce compliance agreements negotiated by EPA.

Enforcement Against DOE Employees and Contractors

Criminal prosecution of individual DOE officials is another potential environmental enforcement tool for EPA and, possibly, states. With enactment of the Federal Facility Compliance Act, Congress explicitly waived sovereign federal officials' sovereign immunity against civil and criminal prosecution under RCRA and related state laws. For hazardous and radioactive mixed waste, the law allowed a three-year waiver to give federal agencies time to develop compliance plans.

Because that waiver expired October 6, 1995, some DOE officials have expressed concern about prosecution for mixed waste that remains out of compliance. In response, the Senate included a provision in its version of the FY1996 Defense Authorization Bill (H.R. 1530), approved September 9, 1995, to discourage such prosecution when lack of compliance was caused by funding restrictions.

Because all major DOE facilities are operated by contractors, EPA and state regulators have sometimes aimed enforcement efforts at the contractors rather than their federal managers. The Justice Department officially has no objections, either constitutional or statutory, to EPA actions against contractors. Contractors operating DOE-owned facilities have the same sovereign immunity as DOE, so the waivers of sovereign immunity by federal environmental laws apply to contractors as well. As a result, states can pursue a wide range of enforcement actions against DOE contractors -- including lawsuits to enforce EPA administrative orders and EPA-imposed civil penalties. DOE will not reimburse contractors for fines and penalties that the contractors could have avoided.

Rockwell International Corp. agreed in March 1992 to pay a non-reimbursable $18.5 million fine for violating environmental laws when the company operated the Rocky Flats Plant for DOE. Through February 1994, DOE and its contractors had been assessed more than 60 environmental fines and penalties by EPA and state agencies. Excluding the Rockwell settlement, those assessments total about $6 million, although not all have been paid, according to DOE.

Cleanup Standards and Land-Use Planning

The total cost of cleaning up DOE facilities will depend largely on the standards for residual contamination -- particularly radioactivity -- that must be met. But controversy over acceptable levels of residual contamination has made cleanup standards difficult to establish. Many environmental groups and local activists have insisted that all radioactivity associated with DOE activities be removed. Others have pushed for standards that would reduce radioactivity at DOE sites to an acceptable level of risk for unrestricted use; however, determining acceptable risk is also controversial. On the other extreme, it has been suggested that some contaminated locations be cordoned off permanently, with minimal cleanup.

Because cleanup standards may depend on future uses of DOE sites, the Department has placed a high priority on developing a land-use policy. Such a policy might allow partially cleaned areas to be used for industrial activities, for example, and allow full cleanup to be deferred. Not all sites would be cleaned up for unrestricted use, at least in the near term. EPA issued draft radioactive site cleanup standards in May 1994 that would limit radiation doses to the public from drinking water and other sources. The limits would be applicable for 1,000 years, and cleanup requirements would take future uses of the site into consideration.

DOE issued a Future Use Report in April 1996 compiling site-by-site land use recommendations at Department facilities. More than 85% of the DOE land was recommended for grazing and other open space , about 10% for industrial and commercial use, and the remainder for agricultural, recreational, and waste storage purposes.

The current regulatory system for DOE cleanups was sharply criticized by a report released in March 1995 by the Senate Energy and Natural Resources Committee. The report, "Train Wreck Along the River of Money: An Evaluation of the Hanford Cleanup," concludes that state and federal environmental regulations are forcing DOE to spend money for low-priority cleanup activities at Hanford and that DOE is managing those projects poorly.

A January 1996 report by a National Research Council panel further charged that the cleanup of DOE facilities has been hampered by poor planning, lack of coordination, inappropriate priorities, and overemphasis on paperwork. Some of those problems were blamed by the report, "Barriers to Science," on political influences and regulatory inefficiencies. An in-depth National Research Council study on the management of the EM program and major issues facing the DOE cleanup effort was released in December 1995. The report, "Improving the Environment" (online at http://www.nap.edu/readingroom/books/doeemp/), recommends that DOE implement clearer program goals, improve prioritization methods and costbenefit analysis, and revise its methods of selecting cleanup technologies.

Cleanup and Waste Management Funding

The FY1997 Energy and Water Development Appropriations bill provides $6.4billion for DOE's environmental management program -- slightly less than the Administration request but about $100 million more than appropriated in FY1996. That total includes $170 million for the privatization of some DOE waste management activities, an initiative that was not in the FY1996 budget.

Appropriations for the environmental management program are provided in three segments: defense, non-defense, and the Uranium Enrichment Decontamination and Decommissioning Fund. Defense environmental management activities are related to current or former facilities in the DOE nuclear weapons complex, while non-defense activities are related to nuclear energy, physics, and other research programs. The Uranium Enrichment D&D Fund consists of contributions from the DOE defense-related environmental restoration program and from nuclear utilities.

The House approved the FY1997 Energy and Water Appropriations bill (H.R. 3816, H.Rept. 104-679) on July 25, 1996, and the Senate followed July 30, 1996 (S.Rept. 104-320). The House approved about the level requested, and the Senate boosted the request by about $200 million. Neither chamber adopted the Administration's proposed new category for "Site Operations," and both shifted the funding to "Nuclear Material and Facilities Stabilization." The House approved the conference report on the measure September 12, 1996, and the Senate followed September 17, 1996 (H.Rept. 104-782). President Clinton signed the measure September 30, 1996 (P.L. 104-206).

Table 1 shows funding for the program as tabulated in DOE's FY1997 budget justification and Committee reports.

***TABLE or GRAPHIC not shown here***


LEGISLATION

P.L. 104-201, H.R. 3230, S. 1745
National Defense Authorization Act for FY1997. Authorizes appropriations for DOE defense-related programs, including environmental activities at nuclear weapons complex facilities. House bill introduced April 15, 1996; referred to Committee on National Security. Approved by Committee May 1, 1996 (H.Rept. 104-563). Approved by House May 15, 1996. Senate bill reported as an original measure by the Committee on Armed Services May 13, 1996 (S.Rept. 104-267); approved by Senate July 10, 1996. Conference report passed House August 1, 1996; passed Senate September 10, 1996 (H.Rept. 104-724). Signed into law September 23, 1996.

H.R. 1663 (Skeen)
Waste Isolation Pilot Plant Amendments Act. Accelerates regulatory procedures for operation of WIPP by giving DOE primary regulatory authority and reducing EPA review period. Restricts litigation that could delay schedule and provides earlier payments to New Mexico. Introduced May 17, 1995; referred to Committees on Commerce, National Security. Approved by Commerce Committee's Subcommittee on Energy and Power July 28, 1995. Approved by Committee March 13, 1996. Similar provisions included in FY1997 Defense Authorization signed September 23, 1996 (P.L. 104-201).

P.L. 104-206, H.R. 3816, S. 1959
Energy and Water Development Appropriations for FY1997. Provides funding for DOE environmental activities. House measure approved by Appropriations Committee July 16, 1996 (H.Rept. 104-679); Senate version approved by Appropriations Committee July 16, 1996 (S.Rept. 104-320). Passed House July 25, 1996; passed Senate July 30, 1996. Conference report (H.Rept. 104-782) approved by House September 12, 1996, and Senate September 17, 1996. Signed into law September 30, 1996.

S. 333 (Murkowski)
Department of Energy Risk Management Act of 1995. Directs DOE to carry out specified cost-benefit analyses before implementing environmental restoration projects. Introduced February 2, 1995; referred to Committee on Energy and Natural Resources. Reported by Committee May 25, 1995 (S.Rept. 104-87).

S. 570 (Gorton)
DOE Privatization Act of 1995. Authorizes DOE to enter into long-term contracts with privately owned and operated waste treatment and management facilities to help clean up defense-related sites. Such private operations could be carried out on land leased from DOE and would be protected from liability for previous environmental contamination. Introduced March 16, 1995; referred to Committee on Armed Services.

S. 871 (Johnston)
Hanford Land Management Act. Requires comprehensive DOE plan for environmental activities and future land use at Hanford Site and requires DOE to set site cleanup standards. Sponsors' amendment would exempt DOE environmental activities at Hanford from RCRA, CERCLA, and state and local environmental laws. Introduced May 26, 1995; referred to Committee on Energy and Natural Resources.

S. 1402 (Craig)
Waste Isolation Pilot Plant Land Withdrawal Amendment Act. To speed the opening of WIPP by removing several environmental regulatory requirements and tighten deadlines for regulatory decisions. Introduced November 8, 1995; referred to Committee on Energy and Natural Resources.

S. 1852 (Johnston)
Bars class-action lawsuits against Department of Energy contractors for nonphysical injuries, and bars the award of punitive damages against DOE contractors for incidents occurring before August 20, 1988. Introduced June 7, 1996; referred to Committee on Energy and Natural Resources.


CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

U.S. Congress. House. Committee on Commerce. Subcommittee on Energy and Power. Waste Isolation Pilot Plant Land Withdrawal Amendments Act. Hearing, 104th Congress, 1st session. July 21, 1995. Washington, U.S. Govt. Print. Off., 1995. 74p. Serial No. 104-31.

----- Oversight Hearing on Environmental Remediation at DOE Facilities. Hearing, 104th Congress, 1st session. October 31, 1995. Washington, U.S. Govt. Print. Off., 1995. 87 p. Serial No. 104-45.

U.S. Congress. House. Committee on Natural Resources. Subcommittee on Energy and Mineral Resources. Federal Nuclear Facilities Licensing and Regulation Act (H.R. 3920). Hearing, 103rd Congress, 2nd session. March 1 and 8, 1994. Washington, U.S. Govt. Print. Off., 1994. 351 p. Serial No. 103-72.

U.S. Congress. Senate. Committee on Energy and Natural Resources. Train Wreck Along the River of Money: An Evaluation of the Hanford Cleanup. Report for the Senate Committee on Energy and Natural Resources prepared by Steven M. Blush and Thomas H. Heitman. March 1995.

----- DOE Risk Management Act of 1995. Hearing, 104th Congress, 1st session. March 6, 1995. Washington, U.S. Govt. Print. Off., 1995. 99 p. S. Hrg. 104-63.

----- Hanford Nuclear Reservation. Hearing, 104th Congress, 1st session. March 22, 1995. Washington, U.S. Govt. Print. Off., 1995. 59 p. S. Hrg. 104-99.


FOR ADDITIONAL READING

Congressional Budget Office. Cleaning Up the Department of Energy's Nuclear Weapons Complex. May 1994. 78 p.

National Research Council. Barriers to Science: Technical Management of the Department of Energy Environmental Remediation Program. National Research Council Committee on Buried and Tank Wastes. National Academy Press. January 1996. 23 p.

----- Improving the Environment: An Evaluation of the DOE's Environmental Management Program. National Research Council Committee to Evaluate the Science, Engineering, and Health Basis of the Department of Energy's Environmental Management Program. National Academy Press. December 1995. 211 p. http://www.nap.edu/readingroom/books/doeemp/

----- The Waste Isolation Pilot Plant. National Research Council Committee on the Waste Isolation Pilot Plant. National Academy Press. October 1996. 167 p.

Resources for the Future. Cleaning Up the Nuclear Weapons Complex: Exploring New Approaches. Discussion Paper 96-25. July 1996. 32 p.

U.S. Department of Energy. Environmental Management 1995: Progress and Plans of the Environmental Management Program. February 1995. 104 p. (DOE/EM-0228)

----- The 1996 Baseline Environmental Management Report, Vol. 1-3. June 1996. (DOE/EM-0290)

----- Closing the Circle on the Splitting of the Atom. January 1996. 106 p. (DOE/EM-0266)

----- Risks and the Risk Debate: Searching for Common Ground, "The First Step." Draft Report, Vol. I-III. June 1995.

----- Improving Regulation of Safety at DOE Nuclear Facilities. Final Report of the Advisory Committee on External Regulation of U.S. Department of Energy Nuclear Safety. December 22, 1995. 124 p., plus appendices.

----- Draft Waste Management Programmatic Environmental Impact Statement, Summary and Vol. 1-4. August 1995. (DOE/EIS-0200-D)

----- Charting the Course: The Future Use Report. April 1996. 119 p. (DOE/EM-0283)

----- Environmental Restoration Acceleration Report. May 1, 1996. 43 p. (DOE/S-0116)

----- DOE Office of Environmental Management home page; describes DOE environmental problems and cleanup activities. http://www.em.doe.gov/

U.S. Environmental Protection Agency. Final Report of the Federal Facilities Environmental Restoration Dialogue Committee. April 1996. 105 p., plus appendices.

U.S. General Accounting Office. Department of Energy: National Priorities Needed for Meeting Environmental Agreements. Report to the Secretary of Energy. March 1995. 54 p. (GAO/RCED-95-1)






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