I. Introduction

II. Origin of the Problem

A. The Legacy of the Cold War and Early Failures to Protect the Environment
B. Addressing Real Risks to Real Communities
C. The History of Federal Facility Cleanup
D. Renewing the Commitment to Cleanup

III. Owning up to the Federal Responsibility

A. Survey of Agency Challenges
B. Building Knowledge About Relative Risk at Sites
C. DOD: A Relative Risk Framework and Community Partnerships
D. DOE: Ongoing Process Improvements

IV. Paying the Cold War Mortgage: Remaining Challenges

A. The Potential Funding Gap
B. Historical Management Obstacles to DOE Program Improvement
C. The Need for Statutory and Regulatory Reform
D. The Special Problems of Radioactive Waste
E. The Need to Develop and Implement More Cost-Effective Technology

V. The Path to Reform

A. Principles of Reform
B. Statutory Reform
C. Administrative and Regulatory Reform
D. Management Reform
E. Cost-Effective Technology Development and Implementation
F. Budget Process Reform

VI. Conclusion

Glossary

This report presents the analysis, conclusions, and recommendations of the Federal Facilities Policy Group (FFPG), convened by the Director of the Office of Management and Budget (OMB) and the Chair of the Council on Environmental Quality (CEQ) to review the current status and future course of environmental response and restoration at Federal facilities.[1] Specifically, this report identifies areas of management and regulatory reform essential to protect public health and restore the environment as well as assure effective, efficient use of resources as the effort to clean-up Federal facilities proceeds.

Lack of sensitivity to environmental protection by some agencies was also a problem on Federal lands and at Federal facilities around the country. For some agencies, the sense of urgency to develop a stockpile of nuclear weapons and maintain a prepared military force during the Cold War, coupled with the secrecy and compartmentalization of information required for nuclear technology security, resulted in long delays before significant environmental problems were understood or addressed. Consequently, the extent of existing contamination on Federal land is only now being fully characterized and the enormity of the cleanup challenge adequately recognized.

Initial studies conducted at Federal agencies document the enormous challenge presented by Federal facilities contaminated with radioactive or hazardous waste. Much of the radioactive waste is a by-product of the Department of Energy's (DOE) nuclear weapons research, production and testing. The Department of Defense's (DOD) operations have also generated hazardous waste contamination similar to that found in the industrial and commercial sectors. Thousands of abandoned mines and other contaminated sites are found on public land managed by the Department of the Interior (DOI) and the Department of Agriculture (USDA). Chemical and radiological substances at Federal facilities have contaminated air, top soil, sediments, surface water, and groundwater, as well as vegetation and wildlife, thereby posing significant threats to human health and safety and the environment.

B. Addressing Real Risks to Real Communities.

Although there is consensus on the obligation to address contamination at Federal facility sites, there is insufficient agreement on the scope of the obligation or the appropriate standards to guide decisions about remediation, restoration, and future use of Federal agency sites. Indeed, the magnitude of the challenges presented by the commitment to address the numerous, diverse, and complex environmental problems at Federal facilities underscores the importance of making the best possible judgments concerning risk, priority, cost, and cleanup levels. Yet, even as our knowledge about sites has improved, there remains considerable debate and little consensus concerning the precise nature and severity of risks presented at certain Federal facility sites, the standards that should apply in determining cleanup levels, the priority and pace of cleaning up the portfolios of sites managed by each agency, and the role of costs and benefits in ascertaining and constraining cleanup strategies.

C. The History of Federal Facility Cleanup.

1. Knowledge, Technology and Communication Limitations.

The Lack of Knowledge: During the early years of Federal facility cleanup, knowledge limitations significantly impeded cleanup progress. Initially, little was known about the extent or range of the potential sources of existing contamination. To tackle this challenge, agencies had to first characterize each site, a process which involved testing to determine the presence, type, quantity, and location of contaminants; subsequent evaluation of how those contaminants move and change after entering the environment; and finally, a prediction of the direction and rate of contaminant migration. Characterization has proven to be time-consuming, costly, technically difficult, and fraught with uncertainty, but essential for sound risk assessment and effective, efficient cleanup decisions.[2] At large, complex facilities like those of DOE, comprehensive, integrated assessments have been especially difficult to accomplish. Moreover, just determining how far to pursue characterization at a particular facility or site has not been easy. The value of additional information has had to be weighed against its real costs, including delay in moving to cleanup and diversion of resources away from cleanup.

Agencies often have had to undertake these tasks without fundamental scientific knowledge of certain contaminants or combinations of contaminants. Such knowledge, however, remains essential to the development of sound science-based protective standards for the off-site public, for on-site workers, and for the environment. Knowledge regarding the effects of hazardous and toxic substances and materials on human health and other biological receptors has been and remains incomplete. Specifically, a greater scientific understanding about the toxicity, health effects, and interaction of environmental contaminants known to exist at Federal facilities is needed.[3] For example, sediments in lakes and streams surrounding DOE's Oak Ridge Reservation contain both radionuclides and polychlorinated biphenyls (PCBs). The biological consequences of such multiple exposures may be very different from the effects of individual contaminants. Once inside an organism, environmental contaminants can accumulate, interact by impinging on the same organ system, or alter the metabolism of other contaminants. The need for more complete information on the biological impact of environmental contaminants [4] is well-documented,[5] yet answers to some of these questions may be unavailable for many years.

A Lack of Cost-Effective Technology: During much of the history of Federal facilities cleanup, effective and proven technologies for certain cleanups have not existed, and the cost of others has been prohibitive. This has been particularly true for DOE radioactive waste cleanup.[6] Even characterization technologies, which are used to determine the types of contaminants present at many sites, have frequently been either ineffective or too costly.[7] Still, new technologies often present the best hope for ensuring a real reduction in risk to the environment and improved worker and public safety. DOE has identified five such areas where new technological solutions are most needed to facilitate cleanup: ground water contamination; plutonium in soil; silos with uranium processing residues; single-shell, high-level waste tanks; and buried transuranic waste. In addition, improvements in material removal, handling and processing technologies are needed to enhance safety and reduce costs. Federal agencies have encouraged the development of promising technologies, but some will not be available for many years. Consequently, the Federal government's ability to accurately gauge the cleanup cost, timetable, and associated risks has been significantly limited in the past and even today is uncertain.

The Problem of Federal/Public Communication: The public demand for information on existing contamination and for involvement in decisions addressing these problems has significantly increased. Until the past few years, however, the role of locally affected populations in cleanup decisions was extremely limited. The remoteness of certain Federal facilities, the secrecy surrounding national security activities, and management cultures oriented toward other missions all contributed to the absence of systematic efforts to address the concerns and interests of local stakeholders. Secrecy that was once critical for the security mission at some agencies persisted long after agency missions had changed, which impeded public involvement and undermined public confidence.

2. Early Responses.

This new leverage, under CERCLA and later the FFCA, to compel cleanup contributed greatly to the development of a cleanup effort commensurate with the range and number of environmental problems for which Federal agencies are responsible. Aggressive early efforts to develop IAGs, however, meant that many cleanup commitments were negotiated without adequate information about site conditions and cleanup requirements, and before sites had been assessed, cleanup approaches and requirements selected, future land use decided, technological feasibility evaluated, or the relative priorities across different sites and facilities compared. Consequently, performance milestones set by the IAGs often proved unachievable. These milestones also assumed that funding levels would be sufficient to meet projected cleanup requirements on a ambitious schedule. The schedules did not anticipate funding constraints inherent in the budget process. Thus, the IAGs and the budget process at times established potentially conflicting sets of mandates and requirements, all of which may be enforced by Federal and State regulators with the threat of injunctive relief, civil penalties, and criminal penalties against Federal officials.

D. Renewing the Commitment to Cleanup.

1. The Administration Commitment.

2. The Goal of Federal Facilities Cleanup.

These basic goals have not yet been attained, because, as has been found true for hazardous waste cleanup in the private sector, cleaning up Federal facilities has proven to be a larger, more complex, and more expensive challenge than most people first envisioned. These issues have been the focus of intense scrutiny at a time of widespread public distrust of government and mounting pressures to reduce government spending. This requires Federal agencies responsible for hazardous waste cleanup to refine their strategies for attaining the basic goal and adopt attainment strategies that reflect current resource and knowledge constraints. These strategies must set priorities and allocate resources in a manner and through a process that leads to greater efficiency and greater public acceptance. The process must recognize that the pace and level of cleanup depend upon appropriations from Congress and that there will be diminishing fiscal flexibility. Accordingly, the development and implementation of these strategies must ensure better use of existing funds. The process must foster more cost-effective cleanup choices, greater attention to cost, better management, and decisional criteria to ensure that the benefits of particular cleanup choices exceed costs.

At the same time, we must recognize that each agency has made significant commitments to the communities in which they are located. Any processes for priority-setting and revising cleanup decisions or timetables must be transparent, with substantial opportunities for meaningful participation by affected communities. These processes must take into account other significant Federal policies relevant to environmental protection, including those promoting economic growth, beneficial re-use of closing Federal facilities, and environmental justice.

A. Survey of Agency Challenges.

The second category is comprised of those sites where Federal operations have generated environmental problems similar to those found in the private sector. For example, the releases of hazardous substances associated with solvents and fuels from vehicle or airport operations at DOD and National Aeronautics and Space Administration (NASA) facilities are comparable to those found at similar operations in the private sector. Only ordnance disposal areas, a very small percentage of DOD contamination, represent a unique cleanup challenge. The industrial contamination sites in this category, while the most numerous, are consequently the sites for which knowledge about risk and remedial technology is the most developed and understood.

The third category of sites are on lands administered by Federal agencies and at which either governmental or private parties have disposed of hazardous substances or are otherwise responsible for contamination. Contamination at these sites has a range of causes, from hazardous substances leaching from disposal areas to releases from mining and milling operations left by private parties on lands managed by the Department of Interior and the USDA Forest Service. Because many of these sites are geographically isolated or have contamination attributable to non-agency activities, the identification and assessment of these

sites is in the earliest stages. The Federal Facilities Profile table on page 16 summarizes the scope of the cleanup challenges faced by each agency.

1. The Nuclear Weapons Complex: The Department of Energy.

DOE now must manage a large inventory of stored wastes and clean up contamination at 137 DOE facilities in 33 States and one territory. This represents over 1,200 separate cleanup tasks -- with over 10,000 potential release sites -- that are known throughout the complex today. The most pressing cleanup challenge consists of 15 major facilities and a dozen or so smaller facilities. Six of the major facilities--Hanford, Savannah River, Oak Ridge, Fernald, Idaho National Engineering Laboratory and Rocky Flats -- account for approximately 80 percent of DOE's environmental management budget. In addition, DOE is responsible for environmental cleanup at other facilities formerly used in the production of weapons or the mining and enrichment of uranium, and for cleaning up mixtures of radioactive and hazardous waste. Contamination at these sites is primarily comprised of radioactive and hazard ous wastes and fissile material. These contaminants present technological cleanup challenges unique to DOE. The most common contaminated areas are buildings, soil, storage tanks and basins used in the past for waste disposal.

DOE's Environmental Management (EM) program has four major responsibilities:

• Waste management activities to minimize, treat, store, and dispose of approximately 800,000 cubic meters of DOE waste;

• Environmental restoration activities at more than 10,000 potential release sites (grouped into 850 subprojects) to characterize the extent and nature of contamination and potential risks, remove and/or stabilize contaminant sources, remediate contaminated media, decontaminate and decommission surplus facilities, and monitor facilities after closure;

• Technology development programs to expedite and support remediation and waste management activities;

• Nuclear materials and facilities stabilization activities to manage approximately 2,600 contaminated surplus facilities that have been transferred to EM from other DOE programs and that may require deactivation, stabilization, surveillance, and maintenance.

Thus, the EM program consists of both managing existing and newly generated wastes and cleaning up historic contamination. This is significant for two reasons. First, the cleanup programs at all other Federal agencies discussed in this paper -- DOD, NASA, Interior, and Agriculture--do not include management of existing wastes in their scope or cost estimates. Second, the nature of the laws for day-to-day management differ from those for cleanup. Laws governing day-to-day waste management are generally more prescriptive and technical and tend to be focused on preventing or restricting environmental releases at active facilities. Their enforcement is characterized by a near-term focus and strict technical interpretation. Laws governing cleanup, however, generally focus on actual or potential releases of contamination at inactive facilities or where there has already been a release to the environment. Thus, enforcement can be characterized by both an immediate focus on managing existing, newly generated, and future waste and by a longer-term focus on remediation of previously contaminated sites with the potential for greater flexibility in negotiating compliance activities. It is important to distinguish between day-to-day environmental compliance and longer-term cleanup projects to ensure that in the debate over the setting of priorities, those pollution-avoidance activities that serve as the backbone of our Nation's environmental program are not inadvertently compromised.

The life-cycle cost estimates of the various aspects of EM's activities outlined above are detailed in the March 1995 report released by DOE entitled The 1995 Baseline Environmental Management Report (BEMR).[8] The report represents the DOE's most comprehensive effort to date to estimate the scope and cost of its environmental responsibilities. The total cost estimate ranges from $200-$350 billion, in constant 1995 dollars, over a 75 year period from 1995-2070. Five major sites (Hanford, Savannah River, Rocky Flats, Oak Ridge, Idaho) represent 70 percent of the total estimate, and 90 percent of these costs would be incurred by 2035.

The Base Case presented in the BEMR incorporates a broad range of site-specific assumptions for future land use, cleanup levels, and technology, as well as the pace, priority, and configuration of activities. The assumptions in the BEMR report, which have a major impact on the estimates presented, include the following:

• Local program managers' current expectations for the future use of each site will be followed (e.g., land use assumptions for large isolated facilities that generally favor containment) will be followed.

• Only existing technologies are available for treating contamination.

• The Waste Isolation Pilot Plant will be open in 1998 as a repository for transuranic waste.

• A permanent repository for high-level radioactive waste will open in 2010 and will begin accepting defense high-level waste in 2016 and Department-owned spent fuel shortly thereafter.

• The EM program will be considered substantially "complete" when all sites have been remediated and when waste generated from previous missions and from remediation and stabilization is safely disposed.

The BEMR estimates exclude projects for which no current feasible remediation approach exists, such as: nuclear explosion test areas (e.g. the Nevada Test Site); large contaminated river systems, like the Clinch, Columbia, and Savannah rivers; most groundwater (even with treatment, future use will remain restricted); and some special nuclear materials (e.g. 50 tons of plutonium not now identified as surplus). Long-term surveillance and maintenance costs of $50-$75 million per year are also excluded.

The low and high ends of the overall range of estimates vary from the Base Case, depending on important assumptions about productivity over the life of the program. The Base Case estimate of $230 billion assumes a highly ambitious 20 percent increase in productivity and efficiency over the next five years and an additional 1 percent annual productivity improvement over the life of the program. The low end figure, $200 billion, assumes a 20 percent increase in productivity over the next five years, followed by a 2 percent annual increase in productivity improvement. The high-end of the range, $350 billion, assumes continuation of current levels of program efficiency.

As DOE's analysis demonstrates, any estimate of the overall cost of DOE cleanup is subject to great uncertainty, and the range of estimates would clearly be much higher if productivity goals were not achieved, less conservative land use patterns were chosen, or remediation activity were required at currently excluded sites. Currently, DOE divides its Environmental Restoration activities into 17 primary projects (primarily corresponding to the major DOE facilities) and 850 subprojects.[9] DOE claims that, at the end of 1994, characterization of 33 percent (282) of its subprojects was complete and that an additional 12 percent (100) will be continued and 9 percent (78) will be completed in 1995. More is beginning to be spent on actual remediation work than on assessment and characterization. Fifty-six percent of total environmental restoration funding of $1.8 billion in FY 1995 is directed toward remediation, or deactivation and decommissioning, with 44 percent going to assessment. In FY 1994, the split was 50/50.

It is more difficult to establish meaningful overall performance measures for the waste management, technology development, and nuclear materials and facility stabilization program areas. Current measures tend to be project specific. For example, DOE sought a 2 to 4 million gallon reduction in leakage from tanks at Hanford and a 2.4 million gallon reduction was realized in 1994; waste management processed 19.2 million gallons of liquid waste, close to its goal of 20.2 million gallons; and 23 of 24 tank safety activities were completed at Hanford. While these measures represent progress toward defining results, considerable opportunity exists for integrating and further improving measures to give a truer picture of overall EM performance. DOE also has begun meeting its goal of better allocating its resources according to risk. For example, the Department's draft risk report concludes that 78 percent of DOE's EM budget is devoted to high and medium risk activities.

The terms of DOE's 71 active interagency agreements require DOE to meet a schedule of activities that serve as enforceable milestones. These milestones have played a major role in EM's planning, budgeting and priority setting. About 80 percent of the EM's budget is specifically directed to meet requirements of compliance agreement milestones and environmental regulations. In 1994, DOE met 399 of 437 milestones (87 percent). Within EM, the environmental restoration program is responsible for 69 percent of all EM milestones. Waste management completed 99 percent or 127 of its enforceable agreement milestones, an 11 percent improvement over FY 1993. Nuclear materials and facility stabilization had only three enforceable milestones, all of which were completed. Technology development had no enforceable milestones.[10]

2. Industrial Operations Cleanups.

Department of Defense.
DOD faces a significant cleanup challenge. Some work started in the late 1970s and continued in the early 1980s. Since 1984, when a separate cleanup fund source was created by Congress, the Department has been engaged in cleanup at 21,425 potentially contaminated sites on 1,769 military installations. In addition, the Department is also involved in cleanup activities at Formerly Used Defense Sites (FUDS). FUDS are properties formerly owned by, leased to, used by, or otherwise under the operational control of DOD. The cleanup program at FUD properties is similar to that at DOD installations. There are a total of 8,316 FUD properties potentially eligible for DOD funding.

The majority of DOD sites are associated with past practices involving the use of fuels and solvents for operation and maintenance of activities at military installations. Spills or leaks occurring as a result of these activities may have affected the immediate surface or subsurface areas around the site. In some cases, a contaminant may have been spread to other areas by stormwater runoff or groundwater movement. Many sites are former treatment, storage, or disposal areas, such as landfills and wastewater treatment facilities. There are a few sites that present unusual challenges for DOD: weapons testing ranges where munitions have been used and unlocated unexploded ordnance may exist; ordnance disposal areas where munitions were buried many decades ago; fire fighting training areas where fuels and other flammable substances have been burned; and low-level radioactive waste areas at which common aircraft dials and other slightly radioactive instruments have been disposed.[11]

At the end of FY 1994, DOD had a total of 21,425 potentially contaminated sites on 1,769 military installations. Of these sites, 9,640 have been closed out, mainly through studies that determined no cleanup was needed. As a result, there are currently about 800 installations with 11,785 sites where a study or cleanup are underway. In addition, there are a total of 8,316 FUD properties potentially eligible for DOD funding. At the end of FY 1994, DOD had closed out or determined no DOD responsibility at 4,604 of these FUD properties.

The pace of DOD's progress at those sites is reflected in the fact that it now spends more in actual cleanup work than studies -- over 47 percent of its funding was spent on actual cleanup, compared to 40 percent for studies. The remaining 13 percent was spent on program administration costs. In FY 1995, prior to the $300 million rescission, DOD projected that it would invest over 60 percent of its funding for actual cleanup work and only 26 percent for studies. DOD's goal is to invest 69 percent of its funding for actual cleanup work in FY 1996.

DOD's current estimate for completing its cleanup program is $26.2 billion in 1994 dollars.[12] DOD's cost estimate is also subject to significant uncertainty and is currently being revised to take advantage of more detailed site-level information. DOD has increased its focus on implementing interim measures -- removal actions and interim remedial actions -- to accelerate reduction of risk to human health and the environment. Interim actions result in the stabilization or removal of contamination sources and thereby reduce or eliminate immediate risks. Interim actions, such as installing fences and providing alternative drinking water supplies, greatly reduce risk by eliminating exposure to contaminants. Other interim actions include source removal, capping, and pumping-and-treating groundwater.[13]

At the end of September 1994, 1,387 interim actions at 1,173 sites had been completed, and another 573 interim actions were underway at 551 sites. The number of interim actions completed and underway at any given time are key indicators of DOD cleanup progress, because interim actions involving waste removal and treatment may satisfy final cleanup requirements. For example, the Air Force took immediate action to stabilize a threat posed to a national wildlife refuge by a 10,000 cubic yard ash pile containing lead on Johnston Atoll in the Pacific. EPA Region 9 wanted timely action to control the contamination. The interim action involved spraying the ash pile with a liquid polymer. In two days, this action stopped contaminants from leaching to a nearby lagoon containing endangered species.[14]

DOD has not systematically collected data on actual risk reduction attributable to its program. DOD is currently evaluating the relative risk of its sites in order to categorize the threat of existing site conditions as either high, medium and low. DOD expects to tie future funding levels to the reduction of relative risk of its sites. In addition, performance measures are being established for environmental work at closing bases. This will include categorizing the relative risk of sites on closing installations and measuring the availability of property environmentally suitable for transfer.

National Aeronautics and Space Administration.
NASA faces industrial cleanup challenges similar to those of DOD at a relatively small number of facilities. NASA is responsible for cleaning up approximately 730 potentially contaminated sites at ten major centers and seven smaller ones, and believes that this list is complete. At 155 of these sites, no further action is required or active remediation has been completed. Another 350 are currently undergoing site evaluation and preliminary assessment, and 75 are undergoing active remediation. NASA plans to investigate the remaining 150 sites over the next two years.

NASA produced these hazardous wastes through its research, operations, and maintenance activities. To facilitate meeting Federal, State, and local environmental requirements, NASA uses a decentralized management approach, with policy guidance, priority setting and oversight from a central Environmental Management Office. The central office has delegated responsibility for environmental compliance to its ten center directors.

Contaminants at these sites are primarily fuels, solvents and industrial waste attributable to such problems as leaking underground storage tanks, exposed asbestos and mercury spills. The current NASA estimate for completing cleanup is $1.5-2 billion, in constant 1994 dollars. NASA plans to complete its cleanup program within the next 25 years, with annual funding requirements of $45-55 million to meet its environmental requirements. NASA has obligated over $136 million since 1988 for environmental restoration, compliance, and pollution prevention.

3. Land Manager Oversight of Hazardous Cleanups.

Department of the Interior.
The DOI is responsible for a large number of potentially contaminated sites on the more than 440 million acres of Federal land that it manages. Much of this remediation challenge is the result of actions by users of Federal lands, including private parties, Indian tribes, other Federal agencies, and DOI. DOI estimates preliminarily that it may have as many as 26,000 sites requiring some cleanup. At many of these sites, responsibility would be shared with the parties who undertook the activities resulting in contamination. The most common site types are abandoned mines, oil and gas production sites, underground storage tanks, and landfills. To the best of DOI's current knowledge, the contaminants at these sites are primarily sedimentation in surface waters, acid mine drainage, chemically-reactive mining wastes, and industrial and household chemical wastes.

The current DOI estimate for completing cleanup is $3.9 billion to $8.2 billion in constant 1994 dollars. DOI does not yet have an estimate for the number of years to complete its cleanup program. DOI is funding cleanup activities at eight sites in FY 1995 through its Central Hazmat Fund (CHF), a centralized no-year fund for remedial investigations/feasibility studies and cleanups at hazardous waste sites for which DOI may be liable. DOI may fund activities at these and additional sites during FY 1996 using the CHF, contingent upon the final enacted funding levels. Additional site cleanup activities are funded through the appropriations of the DOI bureaus with responsibility for the sites.

Department of Agriculture.
USDA estimates that there may be 3,500 potential CERCLA or RCRA sites on lands they manage. Ninety-six cleanup projects were completed at such sites in FY 1994, while 272 sites were investigated and another 70 were identified as needing investigation. Of its estimated 25,000 abandoned and inactive mining sites, USDA estimates that only about 10 percent are likely to require environmental cleanup under CERCLA. As with DOI, many of these sites occur on land under USDA's management, but the contamination may not have been caused by USDA's operations. The most common site types are abandoned mines and landfills. Hazardous wastes from mining, chemical wastes, and sedimentation in surface waters are the primary contaminants at these sites. Not all agencies within the Department have completed their final inventories of potentially contaminated sites. Once these are completed in 1996, the estimate will be revised. The present USDA estimate for completing cleanup is $2.5 billion, in constant 1994 dollars. Some part of the total is anticipated to be paid by private sector responsible parties, particularly in case of abandoned mines at or adjacent to national forests.

Overall, its program is at an early stage of development, with basic site inventories remaining to be completed by the responsible agencies within the Department. USDA plans to complete its site cleanup program within the next 40 years and natural resource restoration within the next 50 years.

4. Cooperative Efforts Among Agencies.

B. Building Knowledge About Relative Risk at Sites.

Extrapolating risk information across DOE sites is a difficult task. Even trying to establish priorities within one site, given the different kinds of environmental settings, contaminations of concern and ongoing activities, can prove quite challenging. For example, just one site might contain the following competing priorities: remediating an Operable Unit under Superfund, siting of a hazardous waste site under RCRA, or stabilizing nuclear materials under recommendations from the Defense Nuclear Facilities Safety Board. DOE, however, has a few sites that have presented tremendous risks to the public, workers and the environment that are far in excess of those faced by other agencies. One of the most significant of these was the SY-101 tank at Hanford that emitted hydrogen gas and presented an explosion hazard until DOE installed a special mixing pump to recirculate the tank contents. DOE has aggressively taken actions to lower the risk associated with such urgent problems as SY-101.

Ongoing efforts within the last eighteen months by the National Academy of Sciences, the Environmental Protection Agency, the Department of Energy, and an interagency working group of Federal agencies have produced new guidelines on risk assessment and priority-setting pertinent to environmental cleanup. At the request of DOE, the National Academy of Sciences prepared a report to advise DOE on risk assessment and management.[16] This report, issued in 1994, concluded that greater use of risk-based decision making is both feasible and desirable. Based upon this report, as well as principles for risk assessment developed by an interagency task force headed by the White House Office of Science and Technology Policy, DOE issued a set of risk principles in January, 1995, that are specifically tailored to DOE's waste management and remediation activities. The DOE principles are being used as interim guidance while comments are received. Separately, EPA Administrator Browner issued new guidance on risk characterization in March 1995, to promote "transparency, clarity, consistency, and reasonableness"; in the agency's judgments about environmental and public health risk.[17] EPA is now working with DOE to ensure that implementation of that guidance corresponds to DOE's interim guidance on risk. EPA also is improving risk judgments in cleanup through policy directives like its future land use guidance, issued in May 1995, which will help ensure that future land use is factored into risk assumptions and remedial decisions. These guidelines for assessing risk and tools for comparing risks across sites should strengthen the decision making and better ensure that funds are being spent on the highest priority sites. In addition, there should be an increasing degree of consistency in relative risk judgments across Federal agencies as these new efforts are implemented.

In addition to the risk assessment efforts being undertaken by EPA, DOD, DOE and other Federal agencies, the Agency for Toxic Substances and Disease Registry evaluates the public health impacts of past, present, and future potential releases of hazardous substances from Federal (as well as non-Federal) National Priority List (NPL) sites through the conduct of Public Health Assessments and other health studies (e.g. community health studies, health surveillance, and medical monitoring.) The data from these efforts provides a complement to site risk assessments by assessing human exposure levels and health impacts in affected communities.

While the science of risk assessment has been advancing, so too has site-specific progress at each of the responsible Federal agencies. The magnitude and complexity of the problems are unquestionably greatest at DOE. DOD, with thousands of active sites, and NASA, with a limited number of industrial-type facilities, are the furthest along in assessing and addressing their sites. USDA and DOI, while making progress in many areas, are by contrast, at the early stages of identifying and responding to their problems at sites with contamination caused by private parties, such as mining operations.

Progress also has been made in recognizing that risk analysis, and risk reduction benefits must consider risks associated with the cleanup itself, such as risks to workers or natural resources that are created by proposed cleanup. Greater risk at DOE facilities generally appears to be to workers. For example, the Department recently completed a comprehensive study of the potential environment, safety and health risks ("vulnerabilities") that arise from the storage of plutonium in its facilities.[18] Out of 299 potential risks discovered, the 15 most significant did not affect the public at all. Instead, the 15 greatest risks resulted from relatively small releases of plutonium into work areas. The study found no potential risks to the public or environment that were highly likely. The 22 potential risks with greatest consequences to the public or the environment that it did identify, such as large internal fires or explosions, earthquakes, or aircraft crashes, all had medium or low likelihoods of occurrence.

The risks at most DOD sites are better understood and appear similar to those occurring in private industry. Most DOD contamination results from past operation and maintenance practices involving the use of fuels and solvents. Contamination at other Federal agencies' facilities has received much less study than at DOD or DOE; however, their risks generally are believed to be similar to those resulting from hazardous substance contamination in the private sector.[19]

Further progress is necessary to fully incorporate ecological risks into relative risk judgments. Even where risks to human health are low, there may be injury to natural resources, particularly at those sites that include extensive land areas that have been minimally developed or used. The extent of such injury is not fully known, because natural resource damage assessments have generally not received adequate funding. In addition, as in the case of worker risk, there needs to be more consideration of natural resource damage attributable to cleanup activities.

C. DOD: A Relative Risk Framework and Community Partnerships.

1. Rational Site Prioritization; The Relative Risk Framework.

Under the framework, sites are grouped into low, medium, and high categories. In making these judgments, DOD first considers the nature of the contaminant, the pathway (i.e. the likelihood of transport of contaminants by soil, groundwater, or surface water), and the possible receptors (portions of the public or environment that may be biologically affected). The results of this analysis are presented to members of the Restoration Advisory Boards (RABs) at installations for their discussion and review. In designing the relative risk framework, DOD incorporated early stakeholder involvement in the process by using the RABs as a mechanism for discussing the relative risk ranking of sites at installations. RABs serve as a forum for exchanging cleanup information with concerned Federal and state officials and local stakeholders. The Department's plan is to expand the number of RABs that participate in the relative risk ranking of sites at DOD installations. RAB members are able to advise and provide input that may change the final ranking of a site at an installation. The involvement of RABs in the relative risk framework have helped to open an earnest dialogue and partnering between stakeholders and the Department at the local level. As a result, DOD has had considerable success when RABs have participated in relative risk ranking of sites at its installations.

In recent years, DOD has increasingly focused its cleanup funding strategy on efforts required by schedules and milestones in agreements in order to meet the Department's overall budget targets. This funding strategy resulted in more sites being covered under agreements, since it was the only mechanism to obtain funding. However, the Department's approach did not always ensure funding was allocated to the most urgent sites. Beginning in FY 1996, DOD began to transition to building its budget based on reducing relative risk while still meeting all legal agreements. In FY 1997, the Department will base its budget on reducing relative risk at sites while meeting schedules and milestones in legal agreements. Furthermore, the Department will work with the regulatory community to stretch cleanup schedules at lower relative risk sites until funding becomes available. A shift toward using the relative risk framework to establish funding priorities is now underway at DOD. For example, Maxwell Air Force Base, Alabama has 32 potentially contaminated sites; 9 of these sites require no further action. In 1994, a RAB was established with 14 members who were provided training on the DOD relative risk framework. The ranking of the sites at Maxwell Air force Base, using the relative risk framework, was presented to the RAB for their discussion and review. Discussion of the relative site rankings was lengthy and spirited. However, the RAB agreed with the rankings as submitted by the installation. Funding for these sites in the FY 1996 budget was allocated based on priority as a result of the relative risk ranking. Several RAB members expressed their appreciation for the honest and open nature of the process. The members felt that the relative risk framework is a process the average citizen can understand.

2. Community Partnerships: RABs and Outreach.

In addition, DOD continues to build partnerships through the Defense Environmental Response Task Force, whose membership includes representatives from DOD, EPA, Department of Justice, General Services Administration, National Governors' Association, National Association of Attorneys General, and public interest groups. The task force's goals are to examine environmental issues associated with the restoration and reuse of closing and military installations and to expedite and improve environmental response actions at those installations.[21]

Other regional and installation-specific partnering initiatives have resulted in increased openness in dialogue and decision-making, higher levels of trust, and more productive negotiations. For example, an innovative partnership agreement among the Navy and regulatory agencies at Marine Corps Air Station Cherry Point, North Carolina has helped form a single vision for the installation's environmental restoration and base realignment activities, saving both time and money. In 1994, the Navy realized the success of this partnering initiative through the development of a $2.5 million abbreviated work plan for the investigation of four operable units. Partnering facilitated the development of this comprehensive work plan, saved an estimated $300,000, and cut at least one year off the cleanup schedule. The overall decision-making process was accelerated by achieving consensus among the partnering teams to shorten the work plan review time.

3. Closing Bases; Implementing the President's
Fast Track Cleanup Program

DOD is conducting environmental work at 100 Base Realignment and Closure (BRAC) locations. DOD has established cleanup teams comprised of representatives from the installations, EPA, and the respective State environmental agencies at over 70 bases, where property will be transferred. These teams have conducted bottom-up reviews of environmental programs and have developed BRAC cleanup plans for each installation. Furthermore, DOD has established RABs at 69 of the closing installations, which serve as a focal point for community participation in the cleanup process. In addition, DOD has completed all of the clean parcel determinations required under the Community Environmental Response Facilitation Act for the BRAC 1988, BRAC 1991, and BRAC 1993 installations.[23] This activity identifies uncontaminated parcels on closing installations, so that property can become available for rapid transfer for reuse.

In addition, performance measures are being established for environmental work at closing bases. The measurement effort will include categorizing the relative risk of sites and measuring the availability of property environmentally suitable for transfer. As a result, DOD will be able to measure its progress and success in implementing the President's Fast Track Cleanup Program.

D. DOE: Ongoing Process Improvements.

1. Contract Reform Initiatives.

DOE is implementing its new contracting approaches at its Rocky Flats Plant in Colorado, which converted from nuclear weapons production to environmental cleanup and waste management in 1992. The strategy includes use of a mix of contractors and contract types, including fixed-price contracts, results-focused performance goals, performance-based criteria and measures, use of contractor incentives, increased contractor accountability, and government/private-sector partnership arrangements for project integration. In addition, at the Idaho National Engineering Laboratory, DOE has issued a contract consolidating five separate M&O contracts into one with a strong emphasis on performance, results, and cost savings. In both cases, DOE is inviting substantial contractor innovation in defining how the work is to be designed and accomplished.

A number of specific contract cost areas have been identified in recently completed studies as significant potential sources for cost savings. Some of these studies[24] have evaluated broad cost categories such as overhead (which can be particularly problematic in cases where some of the work is done by subcontractors), indirect, and project management costs. They have concluded that the cost of Federal cleanup is generally higher than the cost of comparable non-Federal work. Other studies,[25] including some undertaken by the U.S. General Accounting Office (GAO), have focused on very specific costs, often at a limited number of sites and determined that some cost items were excessive.

DOE also is undertaking numerous initiatives to improve contract management by improving its own workforce skills and management information systems for contract oversight and administration.[26] The initiatives involve strengthening DOE financial and accounting systems; improving management of various categories of costs, including indirect costs; and modifying DOE's cost-reimbursement policies. The latter initiative will lead DOE to pay for contractor results rather than incurred costs, to reduce reimbursement of contractor-incurred fines and penalties, and to rely on the Federal Acquisition Regulation (FAR) in lieu of DOE's acquisition regulations (DEAR).[27] DOE also will reduce the costs of contractor litigation through creation of a formal litigation management plan, tight guidelines for contractor retention and use of litigation counsel, and closer oversight and control of litigation decision-making.

2. Reducing Costs Through Efficiency Gains.

DOE has undertaken several initiatives to reverse this trend. First, as part of a pilot project organized under the Government Performance and Results Act (GPRA), DOE was authorized to hire 1,600 additional FTEs through contractor conversion. Of the first 1,200 allotted, 850 were allocated to field operations. These 1,200 positions, most of which have now been filled, will help achieve cost savings and improve cleanup contract management and oversight. An evaluation of this effort will provide more definitive answers on its success in achieving these goals. In addition, as part of a far-reaching agency strategic realignment and restructuring, DOE is streamlining its headquarters organizations and processes to reduce excessive overhead and oversight. Much like DOD, DOE will be focusing its headquarters efforts on determining policy and overall strategy, leaving field managers responsible for implementation of cleanup. Finally, in early 1995, DOE announced its intent to reduce its number of contractor personnel by 39,500 (from FY 1992 levels).

In addition, in FY 1995, DOE sponsored the first "workout" -- a site-specific discussion between the Department and its regulators to identify opportunities to improve cost efficiency. To date, workouts have been held for Hanford and Savannah River. The Hanford workout identified $1 billion in FY 1996-1998 savings, without compromising compliance with existing laws and regulations. Similarly, the Savannah River workout identified FY 1997 potential savings between $80 - $140 million, again without compromising compliance with existing laws or regulations. EPA has strongly endorsed the application and acceleration of these site-wide reviews to other DOE major facilities.

3. Encouraging innovative public-private partnerships.

In addition, DOE recently convened a broad stakeholder process to prepare recommendations concerning further privatization of DOE operations. These recommendations are anticipated in September, 1995. Another DOE proposal under consideration could accelerate deactivation (removal of radiological and hazardous waste contaminants) from non-operational DOE facilities and save money. Under this proposal, DOE would hire private firms to deactivate buildings, where the private firms would supply the necessary funding for the project. DOE would pay the contractor over a period of years from the surveillance and maintenance cost savings, which result from deactivation. Payment would not begin until deactivation had resulted in cost reductions. The savings would be shared between the government and the contractor as specified in the contract.

4. Stakeholder Involvement Initiatives.

The EM program has realized tangible benefits from stakeholder involvement. [29] For example, the Department and regulators recently canceled the proposed closure of one waste area at Oak Ridge National Laboratory after stakeholders expressed concerns about the high cost and minimal benefits involved in the closure. Stakeholder involvement in the renegotiation of the Hanford Tri-Party Agreement enabled the Department to change several critical aspects of the Agreement.[30] Stakeholder involvement at the Fernald, Ohio site enabled the Department to save over $1 billion by stakeholders agreeing to accept less exacting cleanup levels than originally proposed.[31]

The EM program has also begun involving stakeholders in the areas of environmental justice and managerial policy. Recently, the EM program released a draft paper outlining an environmental justice public participation strategy for public comment. A major objective of such a policy is to ensure that the Native American and other disadvantaged communities around cleanup sites are responsibly included in regulatory negotiations. The EM program also reconstituted the Environmental Management Advisory Board, which will serve as a board of directors to advise the EM Assistant Secretary on various program issues. The board is comprised of 28 representatives from labor, EPA, tribes, States, and citizen groups.

The process of stakeholder involvement at DOE is a dynamic one that continues to evolve. Stakeholder contributions are especially important in the areas of site-based risk assessments, future land use determinations, resource allocation decisions, and the ongoing assessment of environmental priorities.

5. Comprehensive Managerial Risk Assessments.

In fiscal year 1995, however, the funding trend was finally reversed with a greater percentage of Environmental Restoration funding now going toward remediation than to assessment. In March of 1995, DOE released the Baseline Environmental Management Report (BEMR) that for the first time catalogues the scope of managing DOE environmental contamination. For DOE, the BEMR report identifies a total of approximately 10,500 potential release units from which contaminants could migrate into the environment. Many, but not all, of these units have been assessed for their contamination potential, but only one quarter of them have been fully characterized.[32] In some areas, such as the permanent isolation of high level waste in a geologic repository, the problem is well understood, but the solution is not available at present, nor will it be until at least the year 2015. In other cases, such as soil contamination from underground testing in Nevada, no remedy is available or even on the horizon.[33] Thus, the full scope of the problem is still not completely defined and great uncertainty still exists in the estimate. Nevertheless, it is one of the first department-wide comprehensive looks at examination of the balance between risk, costs, benefits, and land reuse. The fact that resources are increasingly being devoted to cleanup instead of assessment indicates that the boundaries of the DOE challenge are much better defined and real cleanup is in progress. Certainly the assist that the baseline analysis provides to DOE decision makers and to interested stakeholders in determining how best to put available resources to work cannot be underestimated.

1. Scope of the Estimate.

*The cost range for DOE is in FY 1995 dollars and includes unique operational, safety, and national security costs. The other agencies report in 1994 dollars.

The estimated range for the total cost was developed by aggregating existing agency estimates and analyses. While there was an attempt to define "cleanup"; in a roughly standard way, no attempt was made to apply a common methodology because of the doubts over the value of such a time-consuming exercise and the tremendous variation among the different programs. Agency cleanup programs differ widely in maturity, extent of contamination, level of information available, cleanup methods, technical feasibility and ultimately even the level of actual cleanup that is likely. The range provided is broad mostly because of uncertainties in DOE's future costs. Total cost estimates are and is likely to change over time as knowledge and experience improves. However, the sheer magnitude of the projected costs in relation to the annual total discretionary Federal budget (about $550 billion annually) underscores the imperative to allocate Federal resources wisely and efficiently.

The estimate covers the cost to clean up contamination from past activities at Federal facilities at all but DOI sites. All agency estimates include costs for studies, remedial design, and remedial actions. The estimated costs of decontaminating and decommissioning facilities, including complying with the Federal Facility Compliance Act, and environmental work at closing military bases (except for BRAC I sites) are also included in the overall estimate. Environmental technology development costs are included for DOE and DOD because of their significance to the total program. Technology development costs for other agencies are minimal and are therefore not included in the estimate.

Estimates do not, in general, include the costs of day-to-day compliance for ongoing waste management operations, which represent another large claim on our nation's resources and compete with cleanup. However, because of the indestructible nature of radioactive wastes, DOE must by necessity isolate these wastes virtually in perpetuity. Its cleanup estimate therefore includes the cost of treatment, storage and disposal for the current inventory of stored waste, waste from continuing operations, and waste derived from remediation activities at sites such as Hanford, Washington, that do not have active on-going government missions. Although DOE's EM program classifies all of these legacy and non-legacy waste operation costs as compliance costs, they are included in DOE's total cleanup costs to better capture the scope of the DOE challenge. Other agencies do not have such perpetuity costs and so their cleanup estimates do not include costs for compliance. Estimates for DOD, DOE and DOI do include long-term maintenance and operations costs for remediation alternatives.[34] These costs can be substantial depending on the remedy selected. For example, these costs represent nearly 17 percent of DOD's total cost for cleanup. USDA Forest Service costs do not reflect the possible, cost recovery from potential responsible parties (PRPs) on Federal lands or private operators cleanup of contamination related to their activities.

2. Historical and Current Funding Levels.

A breakdown of the Federal facility cleanup over the last five fiscal years is shown in Table 2 below.

a/ Includes funding from the Defense Environmental Restoration and Base Realignment and Closure Accounts
b/ Central account for RCRA/CERCLA
c/ Office of Federal Facility Enforcement

3. Anticipated Funding Constraints.

Balancing budgetary objectives is particularly constraining for DOE in light of the obligation to meet the requirements of over 70 active compliance agreements entered into with EPA and various States. As DOE has refocused its attention from weapons production to environmental management, the budget for environmental management grew by an average of 27 percent per year from $1.8 billion in FY 1989 to almost $6 billion in FY 1995. However, if we take into consideration the transfer of significant program responsibilities from other DOE program areas, resources in FY 1996 actually decrease from FY 1995 in nominal and constant dollar terms.

In the next five years, DOE will face the most significant challenge of any agency in being able to stay within budget targets established by the Administration. The EM program's revised targets go from $6.6 billion in FY 1996 to $5.5 billion in FY 2000 in current dollars ($4.8 billion in constant 1995 dollars) -- a reduction of 27 percent in constant dollars. Nevertheless, EM's responsibilities will continue to expand in coming years. For example, EM must decontaminate and decommission an enormous and growing backlog of facilities deemed surplus by other DOE program areas. EM continues to assume responsibility for high priority DOE missions such as foreign spent nuclear fuel management and plutonium stabilization. EM will also need to fund and build mixed waste treatment facilities to fulfill its obligations under the FFCA. All of these activities compete with other Federal programs within a limited amount of discretionary funds.

The chart below presents a comparison between the five-year base case in the recently released Baseline Environmental Management Report (BEMR) cost estimate and the President's FY 1996 budget and outyear projections.

BEMR base case projections assume a 20 percent increase in productivity improvement over the next five years. Even with these aggressive efficiency goals, the remaining budget shortfall will require major additional changes to the way DOE does business. The EM program plans to achieve significant progress in streamlining the DOE contractor workforce, reducing indirect and overhead labor costs, and contract reform; but these may be an insufficient source of savings to stay within the prescribed resource levels.

In DOD's case, reduced appropriations for Defense Environmental Restoration Account (DERA) during the past three fiscal years have led to renegotiations of cleanup milestones each year. DOE has also begun the process of reevaluating and, where necessary, renegotiating cleanup agreements to incorporate greater sensitivity to cost, risk, and technological feasibility.

B. Historical Management Obstacles
to DOE Program Improvement.

1. Use of inefficient contracting methods.

Federal facilities cleanup is largely executed by independent contractors. Nearly 50 percent of the total FY 1994 Federal facilities cleanup budget for all agencies was spent on DOE contracts alone.[37] Any savings realized through changes in DOE's contracting practices offer the potential for significant savings in the total Federal facility cleanup costs. A DOE Contract Reform Team established by Secretary O'Leary found significant and systemic weaknesses in DOE historic contracting practices, including the absence of well-defined performance criteria and measures, the failure of DOE financial reporting systems to produce the information necessary to assess and manage effectively, and a lack of competition.[38] The Contract Reform Team, the NPR, and numerous General Accounting Office reports found fault with excessive reliance on sole source, cost-plus-award-fee contracts over fixed-price contracts; use of nonstandard contract clauses; inadequate contractor oversight and cost-estimation capability and reliance on contractors to perform much of this work themselves; assumption of contractor risks; and lack of incentives for contractors to safeguard worker health and safety.

2. Inadequate contractor oversight and
independent cost estimation Capability.

3. Limited use of innovative productivity
improvement and cost-reduction practices.

Past studies have revealed significant cost differences among EM sites performing the same kinds of work, between EM and other government agencies like the Corps of Engineers performing the same kinds of activities, and between DOE and the private sector. For example:

• A 1991 Office of Technology Assessment report[44] analyzed costs for a number of completed remediation projects and found wide disparities from site to site for the same activities. For example, annual sample analysis costs per well at five sites ranged from $1,333 at Livermore to $11,500 at Richland; soil/sludge excavation per cubic yard ranged from $46 at Oak Ridge to $2,084 at Richland; cap installation per square foot ranged from $.42 at Kansas City to $7.63 at Savannah River.

• The 1992 Interagency Group report[45] found that design and construction of a hazardous waste treatment facility at Los Alamos was estimated at $185 per square foot for one structure and $310 per square foot for a second; Los Alamos budgeted $220,000 per full time equivalent (FTE) for remediation personnel, while the Corps of Engineers budgeted $100,000 per FTE; construction of three impermeable barriers (RCRA caps) at Oak Ridge totaling less than one acre was estimated at $3 million, $2.5 million more than the Corps would pay for the same work; contractor flight costs for 405 trips at Fernald were estimated at $331,750, more than 50 percent above the Corps's estimate; 25 Computer Aided Drafting Design (CADD) stations at Fernald were estimated at $45,000 each, while top brand name CADDs cost only $18,000; temporary trailer office space was estimated to cost over $160 psf at Fernald compared to a $128 psf rate for quality permanent office space in Washington, D.C.

• In response to OMB staff questions in fiscal year 1993, DOE reported considerable variation in average per hour direct labor costs across sites, for example: $32.20 at the Waste Isolation Pilot Project (WIPP), $51.06 at Oak Ridge for Bechtel employees on the Formerly Utilized Sites Remedial Action Program (FUSRAP), $56.90 for WINCO employees at Idaho National Engineering Laboratory, $70.70 at Sandia National Laboratory, $81.97 at Los Alamos National Laboratory, and $84.00 at Rocky Flats.

• In fiscal year 1993, EPA field representatives reported that EM paid $15 million for eight RCRA facility investigation plans at Los Alamos National Laboratory (LANL), in 1992, for which EPA typically pays about $500,000.

• A 1993 study prepared for EM compared 65 EM remediation and waste management projects with key characteristics of over 1,000 other public sector and private sector projects. The study found that DOE costs for equivalent work were significantly higher than industry norms (32 percent higher than private sector and 15 percent higher than public sector), that EM's higher costs were a function of high project management costs and project system practices, that cost growth (average overrun of 48 percent) in EM projects is a result of poor project definition, and that EM schedules slipped by 52-69 percent on average compared with 16 percent for other projects.[46]

These examples have prompted DOE to examine ways to effect better cost control. Detailed initiatives planned in the areas of contract and management reform are addressed in Chapter 5.

C. The Need for Statutory and Regulatory Reform.

1. Overview of the Regulatory Framework.

• CERCLA generally imposes cleanup and reporting requirements for cleanup of facilities where there has been a release or threatened release of hazardous substances. It imposes liability for both the costs of response (removal and remedial action) and natural resource damages. In the context of Federal facilities, EPA or the lead Federal agency enforces CERCLA administratively. EPA's enforcement effort, however, is generally limited to those sites that are on the National Priorities List, where EPA must concur in remedial actions selected by the Federal agencies.

• RCRA governs the treatment, storage, disposal and transport of hazardous waste. It imposes requirements on treatment, storage, and disposal facilities to take "corrective action" to clean up certain existing sites. States may assume primary authority for hazardous waste regulation under state law in lieu of RCRA. In addition, RCRA waives sovereign immunity to Federal, State and local hazardous waste management requi rements and, civil penalties imposed under those laws.

• With respect to radioactive materials, the AEA and subsequent legislation authorize DOE to establish, oversee, and enforce compliance with nuclear health and safety requirements at its facilities. This has been done through an extensive series of departmental orders and regulations which set standards for all aspects of the operation, maintenance, and cleanup of nuclear facilities.

• Federal agencies also are subject to independent regulation by State, tribal and local regulators for all environmental media. Both CERCLA, RCRA and other Federal environmental laws subject Federal agencies to substantive and/or procedural requirements of Federal, State and local environmental laws.

2. Statutory and Regulatory Impediments to Sound Management.

These uncertainties are compounded by the potential overlay of one regulatory authority upon another. States have invoked their authority under RCRA or state law at superfund sites, and in some cases have imposed additional requirements beyond those required under CERCLA. Conversely, a site that is being remediated under a state RCRA or other program may be subject to listing on the NPL under CERCLA, introducing a different regulator and different cleanup criteria. At either type of site, contaminated media generated by the cleanup itself may be deemed "hazardous waste" subject to the separate panoply of RCRA regulations for hazardous waste transport, treatment, and disposal, even where cleanup of those wastes present extremely low risk.

Integration of different regulatory regimes has been made more difficult by the fact that, within each regulatory regime, the role of cost in cleanup decisions has been neither transparent nor consistent. Hampered by the limited information about risk available in the early stages of their programs, agencies were slow to set priorities among sites according to comparative risk. Even yet, they remain uncertain about whether those priorities can be implemented in the context of competing priorities set by different regulators, many of which are reduced to compliance agreements among the agency, EPA, and the state. Agencies also have been slow to develop risk assessment and risk characterization methods that are adequate to the task of implementing statutory cleanup goals according to sound science and realistic risk assumptions at federal facilities. For example, EPA just recently issued guidance to ensure that its remedy selection process explicitly takes into account the reasonably anticipated future land use at a site, which suggests that earlier decisions may have been based on unlikely future land uses, such as future residential use of an industrial site. Furthermore, there has been little guidance to ensure that risks to on-site remediation workers and ecological risks attributable to the remedy, itself, are taken into account when considering the risk-reduction benefits of different cleanup alternatives.

The role of cost, similarly, has been neither clearly nor consistently analyzed over the course of cleanup decisions for these programs. Consideration of future land use is one effective means of correlating cleanup costs with risk-reduction and other benefits, but the role of costs and standards of cost-effectiveness otherwise require better definition. Under CERCLA, courts have made clear that cost-effectiveness stands on an equal footing with other statutory criteria (such as the preference for permanence and treatment in remedies),[47] but the statutory and regulatory criteria implementing these criteria have to date been subject to varying interpretation by different agencies. The development of additional approaches that address risks and costs in a categorical way -- such as presumptive remedies for particular types of sites and screening levels for specific contaminants -- have required significant time to develop and may have resulted in greater delay and cost at many Federal facility sites.

Finally, the absence of routine consultation between Federal facilities and the regulating agencies, and among agencies, regulators, and the affected communities has further impaired effective communication about risk and cleanup alternatives at sites. This has impeded the process of reconciling cleanup priorities with budgetary constraints, and diminished regulator and public understanding and confidence in Federal agency management of the cleanup process.

3. Role of Interagency Agreements (IAGs).

• Section 120 of CERCLA requires that, within 6 months of the inclusion of a Federal facility on the NPL, the agency that owns or operates the facility must begin a remedial investigation and feasibility study (RI/FS). (Interim removal actions are permitted if there is a particular problem needing immediate attention while the RI/FS is being completed.)

• Within 180 days of the completion of the RI/FS, the agency head must enter into an Interagency Agreement (IAG) with EPA for "expeditious completion... of all necessary remedial action at such a facility. It is the policy of EPA, DOD and DOE to enter into IAGs much earlier -- often shortly after a site is proposed for or listed on the NPL --- in order to develop a comprehensive agreement addressing both the investigation and remediation phases of the cleanup. Each IAG is required to include a review of alternatives and a selected remedial action for the facility, as well as a schedule for completion of the remedial action and arrangements for operation and maintenance of the site. EPA policy has been to have the State in which the facility is located be a party to the IAG as well.

  Within 15 months of signing a record of decision for cleanup, an agency must begin substantial continuous physical, on-site remediation.

In the past decade, DOD and DOE, the agencies with the majority of Federal sites on the NPL list, have entered into 182 IAGs under CERCLA.[48] The potential for conflict between the EPA's CERCLA authority and the States' hazardous waste regulatory authority has provide d an additional incentive to negotiate three-party IAGs in order to establish a basis for consensus between the two regulators on cleanup strategy for a given site or facility. As a result, at Federal facility NPL sites, IAGs have become the principal mechanism for setting cleanup priorities and schedules, each with legally enforceable milestones for project completion. Due to hurried efforts to establish IAGs, negotiators for both agencies and their regulators established milestones with limited knowledge about the nature and extent of the contamination, relative risks to the public and workers, future land-use of the site, or the feasibility and costs of remedial action. In many cases, agencies entered into agreements without appreciating future budget limitations that would constrain their ability to meet the terms and milestones in these agreements.

The evolution of available information creates an ongoing need to modify timetables and milestones in IAGs. The IAGs have provisions for modifying technical requirements and schedules as circumstances warrant through clauses governing force majeure, extensions, funding and modification; however, such changes must be agreed to by regulators and the involved agency. Although the majority of agreements are only a few years old, most have undergone minor modifications or major revisions. For example, the Hanford Tri-Party Agreement, signed in 1989, has had over 150 modifications and was recently renegotiated. In practice, achieving agreement on other than relatively minor modifications requires a significant commitment from all of the parties involved. As a result, more feasible timetables have often been difficult to achieve.

4. Tension Between IAG Process and Federal Budgetary Constraints.

Any effort to reconcile IAGs with the budget process must be conducted with consideration of the further requirements of Presidential Executive Order 12088 under which Federal agency heads are to "ensure that sufficient funds for compliance with applicable pollution control standards are requested in the agency budget".[49] This principle has been incorporated in most of the IAGs and other agreements in order to ensure agencies seek the full level of funding required to meet the milestones in agreements. This provision has frustrated the efforts of certain Federal agencies to submit budgets that satisfy both budget targets and the Executive Order, since the funding requirements for commitments within signed IAGs have often exceeded their budget targets. DOE, for example, has gone from average annual funding increases of about 25 percent from FY 1990 through FY 1993 to annual funding reductions from FY 1994 through FY 1996. As a result, a number of current IAG schedules or commitments may well need to be modified to reflect these new funding constraints. Otherwise, the result will be a tension between two competing mandates: Executive Order 12088 and the Budget Enforcement Act.

These are urgent problems with grave implications for the budget and for sound cleanup management. RCRA, as amended by the FFCA, waives sovereign immunity for civil and criminal penalties and state enforcement actions for failure to comply with hazardous waste management requirements. Accordingly, when shortfalls occur, agencies must resolve the conflicting priorities set via enforcement actions which are imposed by the multiple jurisdictions to which the agencies are subject. Civil penalty awards that might result from noncompliance threaten a further drain on available resources. Potential exposure to contempt citations or other sanctions threatens to distort agency priority-setting and undermine sound management.

In the past, when appropriations for cleanup were below the level requested by Federal agencies, shortfalls were generally distributed by determining which schedules in agreements could be renegotiated. Some agency agreements contained a force majeure provision, which permitted agencies to renegotiate agreements based upon Congressional reductions. As shortfalls become more significant, however, this site- by-site process has begun to impede rational and systematic priority setting. Another approach, recommended by the FFERDC is generally to distribute the shortfall on a pro-rata basis to each site.[50] The FFERDC position is premised on the assumption that neither the President nor any agency should ever request less than the appropriation that would be necessary to meet all existing milestones. FFERDC believes that pro rata distribution of a shortfall is best, because it believes that existing data and science are inadequate to determine objective, consensus cleanup priorities and that factors other than human health and environmental risk need to be considered in allocating cleanup funds.[51]

5. Funding Approaches for Federal Agencies.

At DOE, the allocation of funding is made first to stabilize those sites that represent a significant and urgent risk to human health and the environment -- the first of six goals for environmental management. The other five goals are: (2) providing a safer workplace; (3) addressing managerial and financial goals; (4) becoming more outcome oriented; (5) pursuing innovative technologies; and (6) implementing a public involvement process. In some cases, DOE has already used these program goals to identify its urgent sites and applicable technologies, and has begun corrective actions. Systematic, risk-based prioritization has been lacking throughout most years of the program. However, DOE has begun using data from its recently-completed draft risk report to identify its most urgent risks and guide its environmental management activities.[52]

DOD, similarly, has found that its current polices and practices do not always address the worst sites first. In recent years, DOD has increasingly focused its cleanup funding strategy on efforts required by schedules and milestones in agreements in order to meet the Department's overall budget targets. This funding strategy resulted in more sites being covered under agreements, since it was the only mechanism to obtain funding. However, the Department's approach did not always ensure funding was allocated to the most urgent sites. Beginning in FY 1996, DOD began to transition to building its budget based on reducing relative risk while still meeting all legal agreements. In FY 1997, the Department will base its budget on reducing relative risk at sites while meeting schedules and milestones in legal agreements. Furthermore, the Department will work with the regulatory community to stretch cleanup schedules at lower relative risk sites until funding becomes available.

D. The Special Problems of Radioactive Waste.

Because of the potential impact upon many future generations, remediation plans must essentially provide for perpetual care of long-lived wastes and take into account unusual technical concerns of residual radionuclides. Even characterization of the waste has been difficult due to the health risks to workers. A lack of agreement upon the threshold level in soil, surface or groundwater which will prevent unacceptable risks to human health, as well as related uncertainties about future land use of former weapons production sites, pose major obstacles to DOE's efforts to conduct remediation at these sites. As DOE has point ed out in its recent Baseline Environmental Management Report (BEMR), decisions regarding land use, allowable residual contamination and technology advances, will dramatically affect the cost; and, given limited resources available, the timetable for remediation.

1. The Implications of Perpetual Care.

Highly radioactive waste presents a much greater technological challenge. Spent fuel and high-level waste from the nuclear weapons complex contains concentrated quantities of radioactive nuclides which decay very slowly.[54] This poses a long-term hazard that requires disposal and isolation from the environment for thousands of years. Efforts are currently in progress at DOE to see whether Yucca Mountain, Nevada is scientifically suitable to serve as a repository for these high-level wastes. Transuranic wastes from defense plutonium activities also require similar permanent disposal until the radioactive elements decay sufficiently.[55] DOE's near-term challenge is to store this waste safely until a deep underground geologic repository is available for permanent disposal. A separate facility near Carlsbad, New Mexico, called the Waste Isolation Pilot Plant (WIPP), is in the process of certification for transuranic wastes. The fact that these highly radioactive and long-lived wastes will need to be confined and isolated as far into the future as we currently have recorded history emphasizes the complexity of the cleanup challenge.

A great deal of research has gone into finding treatment technologies suitable for stabilizing radioactive material for long periods of time and geologic conditions suitable for final repositories for radioactive wastes. Unfortunately, commitment to a single solution has on several occasions been diverted or weakened by suggestions that some new technological advance will provide a better answer. It is true that much of the field of material science is still quite immature as a science. Thus, although the effect of radiation upon the strength, as well as corrosion rate, of materials has been studied for over half a century, there is still uncertainty over whether materials stable over a number of decades will in fact be equally resilient over a period of 10,000 years. This uneasiness has delayed decision making and support for rapid development of these final repositories. In the short term, it generates difficult questions about the type of treatment necessary to make waste ready for acceptance into a long-term disposal facility. Efforts continue to ready the WIPP facility by 1998 and Yucca Mountain sometime before 2015, assuming it is found scientifically suitable.

The extent to which we will safely protect human health and the environment from long-lived radionuclides, while also minimizing the financial and technical burden of nuclear waste disposal passed on to future generations, will in large measure depend on decisions made today. Choices on the type of land reuse, the length of time we are willing to wait to complete remediation, the cleanup levels required, and ultimately, the stabilization technologies selected, will be critical to cleaning up radioactive contamination effectively.

2. Impediments to and Costs of Characterization.

Uncertainties also can remain regarding the extent of contamination at a site, even after the study and remedial design phases have been completed. For example, differences in sources of contamination, soil conditions, hydrogeology, and transport mechanisms make it difficult to completely characterize and understand actual conditions at a site. In fact, the full extent of the cleanup effort may not be known until the remedial action is put in place and the effect on the soil and groundwater is analyzed. Cost-effective remediation, however, will not occur without these studies, nor can resources best be allocated without knowing the extent and location of contamination at Federal facilities. The fact that relative risk assessment information is still generally incomplete and not integrated on a comprehensive site-wide basis, let alone used for cross-site risk comparisons, remains as one of the largest obstacles to cost-effective cleanup at many agencies. An additional impediment to assessing radioactive contamination at DOE sites is the lack of a framework to ensure consistency in relative risk assessment procedures across sites and to permit comparisons among them.

3. Ongoing Questions About the
Biological Effects of Radiation.

Scientists have known of the harmful effects of radiation upon the human body since the beginning of this century and may have devoted more scientific research to understanding radiation than any other known human carcinogen. From their work, it is clear that high doses of ionizing radiation cause cancer. Yet, questions about the human health effects caused by low doses of radiation (less than 10 rem) remain extremely controversial.[56] Much of the early knowledge was gathered by reviewing overexposure cases of radium dial painters, underground miners, and X-ray therapy patients, in addition to animal studies. Later, studies of atomic blast victims at Hiroshima and Nagasaki, coupled with those of military personnel exposed to atomic bomb testing in the late 1940s and early 1950s, added to our knowledge about the immediate and long-term health effects of radiation. Since most of these cases were the result of exposure to fairly high levels of radiation, they did not produce useable information about prolonged exposure to low levels of radiation the kind of data that would produce the best standards for radiation exposure to the general public. Incorporating these observations of high-dose radiation effects into mathematical models for predicting low-dose effects therefore raises questions about the assumptions that must be made to extrapolate the low-dose health risk.[57]

Only in the last few decades has the accumulation of information for human studies on low-level radiation exposure (such as, individuals exposed to nuclear weapons testing fallout, low doses of radioactive medical procedures, and high radiation background levels) permitted statistically significant sample sizes. These studies have not shown consistent or conclusive evidence of an associated increase in the risk of cancer. Attempts to observe increased cancer in human populations exposed to low doses of radiation have been fraught with difficulty and a lack of clarity. Discerning the risk of low-dose radiation from the risk effects of exposure to other hazardous or toxic substances has not proven easy. It is entirely possible, and indeed many within the radiation health physics area would agree, that this finding is actually supportive of the conclusion that there is no increased risk of cancer from exposure to low levels of radiation. The uncertainty about the risk from low-level exposure has prevented complete agreement about limits on public exposure to radiation.

There are even greater disagreements on the genetic effects of low level radiation exposure -- the effect of parents' exposure to radiation upon their children or grandchildren. The prevailing view is characterized by an intense study of nearly 70,000 off-spring of atomic bomb survivors which failed to identify any increase in genetic effects. Other recent analysis also indicates humans now appear less sensitive to the genetic effects from radiation exposure than previously thought. However, a peer reviewed study published in 1990 reported an association between the risk of childhood cancer and a father's exposure to low-dose radiation among people living near the Sellafield nuclear reprocessing plant in Britain.[58] Although not supported by any othe