Existing Legal Structure for Closure of the Weapons Complex Sites
Elizabeth K. Hocking, W. Hugh O'Riordan, and Robert M. Bernero
There is no single federal or state legal framework governing closure of all DOE weapons complex facilities. In closing a facility, the U.S. Department of Energy (DOE) must comply with a panoply of environmental, radiological, and land use laws implemented by federal, state and local governmental authorities. Closure is characterized by wide variability, thus requiring diversity and flexibility from site to site.
The department's legal interest in and control over its land are not necessarily the same nationwide. In western states, arcane federal public land statutes are potent and may affect closure decisions. In eastern states, DOE land was purchased primarily and the nature and extent of the acquired property rights may not often be immediately clear. Similarly, state land laws can be critical to long-term closure decisions.
DIVERSITY OF DOE CLOSURE PROCESS
Every DOE site is subject to a varying mix of federal, state and local laws and regulations. In spite of the apparent rigidity of the very complicated applicable statutes and regulations, sites apparently negotiate a flexible system designed to meet their unique circumstances. In some cases, state law appears to dominate, where in others federal laws govern the process.
Not every site is moving toward the same concept of closure and stewardship. There are several reasons for this. The governing statutes are not consistent in how they establish directions and obligations for stewardship. The leadership for closure appears to be vested in the DOE field managers; DOE Headquarters direction and coordination do not result in uniformity. There is also little intersite comparison and interaction on similar closure situations. These factors result in no single pathway for the closure process.
This lack of a single closure pathway appears to have been accepted by all parties. All parties seem to be seeking the flexibility necessary to help them achieve their goals. For example, the Hanford Site is being cleaned up pursuant to an elaborate and complex Resource Conservation and Recovery Act of 1976, as amended (RCRA)/Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA —also know as Superfund) Tri-Party Agreement (TPA) among the State of Washington, the U.S. Environmental Protection Agency (EPA), and DOE. The Nevada Test Site is being cleaned up pursuant to state of Nevada and DOE agreements under the auspices of RCRA. Several tanks at the Savannah River Site were remediated under the Clean Water Act. This range may be a case of regulators relying upon the legal framework they know best or the one they perceive to give them the most authority and flexibility.
CURRENT FEDERAL AND STATE ENVIRONMENTAL LAWS
Most DOE sites will be subject to either the federal RCRA or CERCLA, or both. Both statutes are of recent origin, and both were amended to clarify that they do apply to federal facilities (RCRA in 1992 through the Federal Facilities Compliance Act and CERCLA in 1986 through the Superfund Amendments and Reauthorization Act). The laws are written to provide general control of situations where hazardous substances on a site require some form of management and remediation. Both laws will likely change in the future.
The significance of state authority over remediation of DOE facilities within their borders cannot be underestimated. Many states control corrective action programs through their EPA authorized RCRA programs and environmental restoration through their own CERCLA analogues. Federal facilities not on the National Priorities List (NPL) are subject to state laws on remediation and removal actions (CERCLA Section 120[a]). Congress also provided states the opportunity in CERCLA Section 120(e) to participate in the development of remedial investigations and feasibility studies with DOE and EPA at sites on the NPL. Notice must be given to the affected state within six months of a federal facility being placed on the NPL.
In addition to these environmental remediation laws, DOE sites are subject to other older (25 years) major federal environmental statutes such as the Clean Water Act, Clean Air Act, Toxic Substance Control Act, Endangered Species Act, and National Environmental Policy Act. Many states will also have laws patterned after these federal laws, and some provisions of the states' laws may be more stringent than the federal laws. Each of these statutes has it own significant regulatory framework and standards that can become site-specific cleanup levels.
Federal Radiation Laws
In contrast to the general style of the environmental remediation laws, the “atomic laws” distinguish the type of radioactive material to be controlled and set specific requirements for such controls, including different site closure and custody requirements. Thus, DOE stewardship activities will vary depending upon the type(s) of material requiring management (e.g., low-level, transuranic, high-level, or mixed wastes).
Atomic Energy Act
The federal regulation of radioactive materials is based principally on the Atomic Energy Acts of 1948 and 1954, as amended. These acts place radioactive materials and practices under the authority of the Atomic Energy Commission, but only if they are associated with the nuclear fission process. Radioactive materials and practices not associated with the nuclear fission process are subject to regulation by the EPA and the states under their public health responsibilities.
The Energy Reorganization Act of 1974 divided the Atomic Energy Commission into the Nuclear Regulatory Commission (USNRC) and what is now the DOE. Existing federal regulatory responsibilities were generally split along the lines of the USNRC regulating commercial uses and DOE regulating itself in nuclear weapons and material research and management programs. Subsequent laws addressed specific aspects of the federal and state regulatory program, assigning specific responsibilities to DOE, USNRC, and state governments.
Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA)
The UMTRCA was established to regulate uranium mill tailings and the contamination associated with the mill sites. Although uranium and thorium are naturally occurring radioactive materials, they are covered by federal regulation since they are source material, a source of fuel for the nuclear fission process. The processing of source material evolved from closely guarded batch operations during World War II, typically in the eastern United States, to the operation of large uranium mills, typically in the western part of the country, as the need grew. The tailings from these mill operations are enormous piles, and emit radon gas as a daughter product of natural radioactive decay, with the amount of this short-lived gas sensitive to whether the pile is covered or not.
The UMTRCA was established in two titles. Title I addressed abandoned or orphaned mill sites and Title II
addressed those commercial uranium facilities with current USNRC licenses at the time of the legislation. Congress mandated that EPA promulgate regulations dealing with the cleanup and remediation of contamination associated with the mill sites and that the USNRC enforce the EPA regulations. The Title I facilities were assigned to the DOE for cleanup and remediation. Remediation of the Title II facilities was the responsibility of the individual license holders. Upon successful remediation of the Title II sites, they were to be transferred to the federal government for long-term care. In establishing the legislation, Congress mandated that reliance on active remediation be minimized.
The EPA established regulations governing uranium mill tailings in 40 Code of Federal Regulations (CFR) Part 192. These regulations require, among other things, a disposal cell design life of 200 to 1,000 years, release limits for the tailings covers, and establishment of groundwater protection standards for each site. The EPA also promulgated groundwater clean up standards for the mill tailings sites. The principal result of these regulations is that tailings are to be emplaced in stable, capped piles with controlled releases of gases and water-leached materials.
In response to the EPA regulations, the USNRC established 10 CFR Part 40, Appendix A, which sets the technical criteria for tailings disposal. The USNRC also established 10 CFR Sections 40.27 and 40.28 to license DOE for custody and long-term care of Title I and Title II sites. The USNRC established a variety of guidelines for design of tailings disposal cells, including requiring the disposal cells to withstand a variety of natural forces, such as probable maximum floods and maximum credible earthquakes. Operations under these regulations are widespread, and the DOE-required custody is being exercised by the Grand Junction Operations Office for these uranium mill tailing sites, along with several other sites.
Low-Level Radioactive Waste Policy Act of 1980 (LLRWPA )
The LLRWPA set the initial framework for state responsibilities in the management and disposal of commercial low-level radioactive waste. Low-level radioactive wastes generated or stored at DOE sites remain the responsibility of DOE. The 1985 Amendments to the LLRWPA made clear that the disposal of Greater-Than-Class-C (GTCC) waste is the responsibility of DOE.
Nuclear Waste Policy Act of 1982 (NWPA)
The NWPA assigned DOE the responsibility to select and develop sites for the deep geologic disposal of high-level radioactive waste (HLW). The DOE is also responsible for indefinite custody and institutional management of such repositories. These sites are to be licensed by the USNRC to meet applicable EPA standards. The definition of high-level radioactive waste was expanded from the solvent extraction wastes of spent reactor fuel reprocessing to include the spent reactor fuel itself (since the United States has stopped spent fuel reprocessing). Through a presidential memorandum issued not long after the 1982 Act, President Reagan directed the use of commercial repositories for disposal of the DOE defense high-level waste (Memorandum from President Ronald Reagan to John S. Harrington, Secretary of Energy, dated April 30, 1985).
Nuclear Waste Policy Amendments Act of 1987 (NWPA)
This law reduced the burden on DOE of characterizing three high-level-waste deep-geologic-disposal sites simultaneously to characterizing only one at a time. DOE was directed to start with the Yucca Mountain Site in Nevada. The USNRC remained as the licensing body for the site and the EPA standard continued as a requirement.
Land Withdrawal Act of 1991 (LWA)
The LWA withdrew the needed federal lands near Carlsbad, NM, for the Waste Isolation Pilot Plant (WIPP), a deep repository for permanent disposal of defense transuranic waste, waste subject to the same EPA disposal standard as high-level waste. The act incorporated a unique regulatory requirement. It recognized that, under its
Atomic Energy Act authority, DOE had regulatory oversight and authorization of its own actions to develop and operate WIPP. The act stipulated, however, that EPA review and concur with DOE action.
Energy Policy Act of 1992
The Energy Policy Act of 1992 made a number of changes that are important to DOE waste disposal efforts. It rejected the EPA disposal standard for Yucca Mountain and directed EPA to seek a study by the National Academy of Sciences for recommendations on preparing a health-based waste disposal standard. That advice was provided in the National Research Council (1995) report, Technical Basis for Yucca Mountain Standards, followed by a letter report to EPA commenting on the report Environmental Radiation Protection Standards for Yucca Mountain, Nevada; Proposed Rule (64 Federal Register 46976-47016, August 27, 1999) (National Research Council, 1999). After hearing that advice, EPA is to promulgate a Yucca Mountain standard and the USNRC is to issue its revised licensing standard for the site. The 1992 Act also established the now private United States Enrichment Corporation to operate the DOE-owned gaseous diffusion plants in Kentucky and Ohio under lease. The DOE retains ownership and the responsibility to decommission and close the sites later.
Federal Radiation Laws and Stewardship Decisions
The radiation laws make DOE responsible for its own radioactive wastes, UMTRCA sites, deep disposal of high-level wastes generated by nuclear power plants, and wastes generated by the U.S. Enrichment Corporation, and potentially responsible for state compact disposal sites. The laws apply conditions to DOE management of these wastes but DOE possesses a great deal of authority to self-regulate its activities.
There has been recent discussion, and some limited congressional action, pointing toward imposing external regulation of DOE nuclear activities by the USNRC. However, there is little evidence of this as a growing trend in the site closure arena. The USNRC oversight is generally limited to statutory responsibilities, such as oversight of uranium mill tailings disposal, and some consultation, and review and comment on the DOE determination of incidental waste at the Savannah River waste tank farms. As a practical matter DOE is able to determine what it wants to do concerning site closure processes within the framework of the statutes and its own waste management standards. However, the DOE waste classifications and oversight role of several organizations could constrain DOE consideration of waste management alternatives that can impact stewardship decisions.
DOE Waste Classification and Disposal Requirements.
In accordance with DOE Order 435.1 Radioactive Waste Management, the DOE operates with waste management and disposal requirements associated with waste classes, which substantially affect plans and options for management of buried and tank wastes. For example:
high-level waste (HLW) is defined by origin, from first state solvent extraction in fuel reprocessing or equivalent;
spent fuel is classified as spent fuel, not waste, until a decision is made on its use or disposition as high-level waste;
transuranic waste (TRU) is defined by transuranic concentration;
low-level waste (LLW) is defined by exclusion (i.e., that which is not HLW, TRU, etc.); and
the presence of RCRA hazardous material can make the radioactive material mixed waste, requiring additional treatment prior to disposal.
Buried or tank waste at a DOE site, when it is characterized, is considered for disinterment or extraction in order to be managed in the proper waste stream. The preferred DOE path is to leave only radioactive residues to be considered for release of the site. In some circumstances, practical matters force the consideration of higher level residues, making the site in question a radioactive waste disposal site, with the need to satisfy the requirements for
the type of waste being disposed. This is the approach now being taken with the liquid waste tanks at Savannah River once they are emptied. At the Nevada Test Site, removal of the waste from the detonation cavities is not practical, so other approaches must be considered.
External Oversight and the Effects of Change
Although the DOE has the authority to self-regulate its radiation activities, it does operate with a substantial degree of external oversight. Many facilities are subject to oversight by the Defense Nuclear Facilities Safety Board (DNFSB).1 The DNFSB does not perform any licensing or permitting of DOE facilities, but does provide structured review of DOE practices and formal advice to DOE.
The USNRC already has statutory responsibility to regulate DOE in storage and disposal of HLW under the Nuclear Waste Policy Act of 1982 and the Nuclear Waste Policy Amendments Act of 1987. The DOE has the responsibility to receive and dispose of, with USNRC approval, the subset of commercial LLW that is Greater-Than-Class-C (GTCC), that is, LLW that contains radioactivity in excess of the limits set for Class C LLW.
The USNRC has been engaged in substantial interaction with DOE to provide advice and concurrence with DOE plans for the management of liquid wastes that are potentially HLW (Bernero, 1993; Paperiello, 1997). The liquid waste management criteria emerging from this interaction are quite simple: technically and economically practicable extraction of the waste and concentration into HLW, and treatment of the low-activity extract and residues to the performance standards for LLW.
DOE Closure Standards
As indicated earlier, DOE has established an extensive array of orders and guidance documents to guide its activities. The DOE recently released Order 435.1, Radioactive Waste Management, and an accompanying guidance document, Radioactive Waste Management Manual. The Manual clearly defines the closure procedures and requirements applicable to DOE management of radioactive wastes.
The closure of high-level waste facilities and sites can be accomplished through (a) decommissioning to the point that the facility or site can meet the release restrictions in DOE Order 5400.5 (Radiation Protection of the Public and the Environment), (b) deactivation in accordance with CERCLA, or (c) development and implementation of an approved closure plan. The closure plan must address operational or interim closure, final facility closure, and institutional closure. Operational/interim closure and final closure consist of the physical activities preparatory to facility closure. Institutional closure occurs after final closure and consists of all actions and measures necessary to ensure the long-term stability of the site. The closure plan must include a monitoring plan that includes the location of monitoring wells or monitoring points, the data to be collected, and the actions that will be taken in response to the results of the monitoring data. The closure plan must also include land use limitations and other institutional controls that must be in place until the facility or site can be released for unrestricted use.
Plans are also required for all low-level waste disposal facility closures. The preliminary closure plan is submitted with the facility performance assessments and composite analyses and is updated throughout the operational life of the facility. Upon closure, institutional control measures are to be integrated into land use and stewardship plans and programs and must be continued until the facility can be released according to the requirements of DOE Order 5400.5.
For both high-level waste facilities and sites and low-level waste disposal sites, a 100-year period of active institutional controls is normally assumed. During this period, access would be controlled and monitoring and custodial maintenance would be performed. Longer periods of active institutional controls may be assumed if justified in documented plans.
DNFSB was established by the Congress to provide independent safety oversight on DOE defense nuclear activities that are self-regulated by DOE under its own Atomic Energy Act authority.
Federal and State Land Laws
Federal and state land laws are the oldest legal frameworks affecting closure of DOE facilities. Neither the federal public land laws nor state land laws were designed specifically for closure of weapons facilities. Moreover, both federal public land laws and state land laws view ownership and control of land as a bundle of rights. Water rights, mineral rights, and rights of way can be held independently of “ownership” of land. This means that the DOE rights as “landowner” may vary from site to site.
Federal and state land laws are very important for the closure process. If DOE residually contaminated land is going to be leased, sold, or granted, some form of institutional control will probably be needed to enforce a use restriction. Many of the typically conceived institutional controls—deed restrictions, easements, zoning, construction or excavation permits, and groundwater use restrictions—are dependent upon the authorities found in state, local, or tribal law.
Federal public land laws prescribe the use and disposition of DOE land. Approximately 62 percent of DOE land was withdrawn from the United States public domain lands by the Department of the Interior (DOI) for specific DOE mission purposes. These “withdrawn” lands must be relinquished to the DOI when they are excess to DOE. Real property is excess when it is no longer required for DOE needs and the discharge of Department responsibilities (DOE Order 430.1A, Life-Cycle Asset Management). If the DOI does not want the land back—because it is so substantially changed in character that it is not suitable for public land—the land is returned to DOE for holding or disposition through other means.
Approximately 27 percent of DOE land was acquired from private owners by the federal government for use by DOE. When these acquired lands are excess to DOE, the Department can lease, sell, or grant them if the new use comports with the purposes of the Atomic Energy Act, Section 161(g). The DOE can also lease excess acquired land under the Hall Amendment to the DOE Organization Act. Alternatively, the Department can turn these excess acquired lands over to the General Services Administration for disposition. The Atomic Energy Act and the DOE Organization Act also allow for the leasing of DOE lands that are temporarily not needed by, but not yet excess to, the Department.
The FY 1998 National Defense Authorization Act requires the DOE to prescribe regulations for its transfer of real property at its defense nuclear facilities for economic development of the property. The Department is in the process of writing those regulations. Disposition of DOE facilities may also be affected by tribal claims to federal land. Claims may be based on treaty rights, the trust responsibility between the federal government and the tribes, aboriginal lands, or ceded lands.
The Public's Role in Closure
Members of the public use the existing legal structure to influence DOE cleanup and closure efforts. Environmental laws and guidance documents strongly encourage public involvement in determining future land uses, cleanup levels, and remedies.
CLEANUP LEVELS AND INSTITUTIONAL CONTROLS
Some flexibility is built into the legal framework for establishing cleanup levels based on future land use and use of institutional controls. While CERCLA gives a preference for treatment and remedy permanence (i.e., complete cleanup), it and RCRA allow hazardous wastes to remain on site. The agreed-upon future land use is a key to determining cleanup levels (Land Use in the CERCLA Remedy Selection Process, EPA/OSWER 9355.7-04, May 25, 1995) and institutional controls can be elements of a CERCLA remedy (National Contingency Plan, 40 CFR 300.430[a][iii][D]).
Cleanup Levels and Future Land Use
Site cleanup levels are driven by a combination of site risks, future site use, and federal and state requirements applicable to the site. Risks posed by a site include risks to workers, the public, and the environment before, during, and after remediation. Communities surrounding sites and the states hosting them play an important role in determining site future uses. Future uses can include, for example, residential, grazing, recreational, wildlife refuge, commercial, or industrial uses.
Actual cleanup levels reflect the expected future land use and are drawn from standards, requirements, criteria, or limitations established in federal or state environmental laws. In some cases, complete cleanup is not technically practicable due to the nature of the source and existing technologies (e.g., the treatment/control of dense non-aqueous phase liquid [DNAPL] contamination of groundwater) or is not economically feasible.
If contaminants remain on the site, use restrictions will be put in place to ensure that people and the environment are not unduly exposed to the contaminants. Use restrictions in the form of institutional controls could include, for example, limited site use of no more than eight hours a day, well-water use bans, and excavation limitations.
Institutional Controls Under CERCLA and RCRA
Institutional controls can be used under CERCLA “to supplement engineering controls as appropriate for short- and long-term management to prevent or limit exposure to hazardous substances, pollutants, or contaminants” (40 CFR 430). However, according to CERCLA regulations, institutional controls should not be used as the sole remedy unless active response measures are not practicable. The decision about the impracticability of active response measures requires considering remedy selection factors such as the overall protection of human health and the environment; compliance with applicable or relevant and appropriate requirement (ARAR); long-term effectiveness and permanence; reduction of toxicity, mobility, or volume through treatment; short-term effectiveness; implementability; cost; and state and community acceptance (40 CFR 300.430[a][iii] [D]).
Whenever hazardous substances, contaminants, or pollutants remain on site as part of the CERCLA remedy, the remedial action must be reviewed “no less often than each 5 years” to ensure that the remedial action is protective of human health and the environment (CERCLA, Section 121[c]; Executive Order 12580). Institutional controls would also be reviewed under this requirement. The remedial action review requirements for RCRA remedies would be listed in the facility permit.
Two EPA regions, IV and X, have issued policies on the use of institutional controls at federal facilities. Both regions require federal facilities using institutional controls to submit plans explaining how the effectiveness of the institutional controls will be ensured through time.
Land Transfers of Contaminated Property
Under CERCLA, deeds transferring federal property on which any hazardous substance was stored for one year or more, or known to have been released or disposed, must include the following information to the extent it is available from a complete review of agency files:
notice of the type and quantity of such hazardous substances;
notice of the time at which the storage, release, or disposal took place; and
a description of any remedial action that was taken.
Deeds transferring property must also contain covenants warranting that (1) all remedial action necessary to protect human health and the environment has been taken before the property is transferred, and (2) any additional remedial action necessary after the transfer will be conducted by the federal government (CERCLA Section
120[h][A]). For purposes of the first covenant, the statement that all remedial action has been taken means that the construction and installation of an approved remedial design is completed and the remedy has been demonstrated to the EPA as operating properly and successfully (CERCLA Section 120[h][B]).
Federal property can also be transferred under CERCLA even if remedial action has been deferred when the EPA or state governor, as appropriate, determines that the property is suitable for the intended use, the intended use is consistent with protection of human health and the environment, and the deferral of remediation and the property transfer will not substantially delay necessary response actions. The public in the general vicinity of the property must be given a chance to comment on the transfer. When remedial action is deferred, the federal agency must warrant in the deed or property transfer document that it will provide (CERCLA Section 120[h][C]):
any necessary restrictions on the use of the property to ensure protection of human health and the environment;
use restrictions to ensure that required remedial investigations, response actions, and oversight activities will not be disrupted;
necessary response actions and schedules for investigations and completion of response actions; and
budget requests adequate to cover response actions to the Office of Management and Budget.
When federal agencies close a unit under RCRA, they must submit a survey plat indicating the location and dimensions of landfill cells or other hazardous waste disposal units with respect to permanently surveyed benchmarks to the local zoning authority or the authority with jurisdiction over the site (40 CFR 264.119). The federal agency must also, in accordance with the applicable state procedure, record a notation on the deed to the facility property—or any other instruments that would normally be examined during a title search—that will “in perpetuity ” notify potential purchasers that the property had been used to manage hazardous wastes, that its use is restricted to maintain remedy integrity, and that a survey plat has been filed (40 CFR 264.119).
Federal agencies must complete appropriate documentation under the National Environmental Policy Act (NEPA) when transferring land. A categorical exclusion (CX) from the NEPA requirements may be appropriate if the impacts of the post-transfer land use would remain essentially the same as the pre-transfer impacts and there are no intervening variables that could cause significant environmental issues. If the expected land use will be a change in usage, either an environmental assessment (EA) or environmental impact assessment (EIS) will be required.
Bernero, R.M. 1993 (March 2). Letter from R.M. Bernero, Director, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear Regulatory Commission, to J. Lytle, Deputy Assistant Secretary for Waste Operations, Office of Waste Management, U.S. Department of Energy, Washington, D.C.
National Research Council. 1995. Technical Bases for Yucca Mountain Standards. Committee on Technical Bases for Yucca Mountain Standards, National Academy Press, Washington, D.C. 205 pp.
National Research Council. 1999. Comments on Proposed Radiation Protection Standards for Yucca Mountain, Nevada, by the Board on Radioactive Waste Management. Board on Radioactive Waste Management, Washington, D.C. 18 pp.
Paperiello, C.J. 1997 (June 9). Classification of Hanford Low-Activity Tank Waste Fraction. Letter from, Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, to J. Kinzer, Assistant Manager, Office of Tank Waste Remediation System, Richland Operations Office , U.S. Department of Energy, Washington, D.C.