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Department of Energy

DOE02: Incorporate Land Use Planning in Cleanup

Background

Cleanup at federal sites is guided primarily by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The National Contingency Plan (NCP), which is the blueprint for implementing CERCLA, specifies that cleanup remedies must protect human health and the environment and comply with all applicable or relevant and appropriate requirements (ARARs), which are federal and state environmental standards.(1) The NCP also identifies cost as a criterion for consideration when cleanup remedies are evaluated.(2)

To determine what cleanup remedies will protect public health and the environment, satisfy applicable requirements, and be cost-effective, an understanding of existing and anticipated exposure of individuals to contamination is necessary. Because future land use decisions often are not an explicit part of the CERCLA cleanup process, there is no effective approach either for establishing cleanup objectives based on anticipated future use of the site and level of exposure to the population, or for measuring and comparing the benefits of alternative cleanup strategies.

In assessing the risks posed by contamination, unrestricted residential land use is virtually always assumed, whether such an assumption is reasonable or not. As a result, the assessment and remedy selection process may lead to unnecessary or inappropriate cleanup decisions. Often the scope of the assessment and remedy selection process is expanded greatly to account for all possible outcomes associated with residential use, even when such future use at large, federally owned sites is unrealistic. In addition, technologies may be selected that result in excessive expense for little demonstrable benefit to human health or the environment.

This situation is complicated by the fact that there are no national standards for radioactive waste and mixed waste cleanup. CERCLA defers to state and federal standards for waste, water, and air contamination; neither state law nor federal law, however, comprehensively addresses the issue of how to mitigate the risk of exposure to radioactive waste or to radioactive waste mixed with hazardous waste. Furthermore, public expectations that a site or facility will be cleaned up to allow unrestricted use may be disappointed if this level of cleanup cannot be achieved because of technology or resource limitations.

Without reasonable assumptions about future land use being determined early in the cleanup process, remedy selection tends to focus on which technologies could be employed at the site. Without a clear objective as to the future use of the land or facility after cleanup, the cost-effectiveness of a particular technology cannot be evaluated. In addition, emerging technologies may be ignored in favor of known technologies, even when such technologies may be cost-prohibitive or have been shown, by sound science or through actual application, to be ineffective.

In the past, DOE's decisionmaking processes have been largely isolated from the public, although DOE is currently working aggressively to remedy this situation. As a result, DOE's credibility with the general public and state and local stakeholders needs further improvement.(3) Stakeholders affected by DOE's cleanup decisions have voiced concern over everything from slow cleanup to creating "national sacrifice zones."(4) In addition, local stakeholders are not always fully informed about the resource, technical, and statutory constraints within which cleanup decisions are made. The stakeholders' inability to get information and their level of distrust can result in opposition to DOE's cleanup decisions which, in turn, brings delays and increased costs.

DOE has successfully implemented an important first step in a land use planning process at the Hanford Reservation, which was formerly devoted to producing plutonium for nuclear warheads. This 560-square- mile site houses large plutonium production facilities and constitutes DOE's most difficult cleanup problem. Although it is too early to gauge its full impact on the cleanup process, it is possible to identify some benefits of the Hanford future use planning process.

At Hanford, a broad-based group of stakeholders worked together and developed an array of land use options for various portions of the Hanford Reservation. One outcome of the process was the identifica- tion of an option to restrict use of part of the site, known as the "200 Area," for waste management. The 200 Area is severely contaminated and therefore will be used temporarily as a waste management site for the rest of the Hanford Reservation. As a result, two other plots of land totaling 260 square miles can be turned over for recreational use beginning next year because the small amounts of waste on that land will be transferred to the 200 Area.(5)

Furthermore, public participation provided data to DOE and regulatory agencies about public needs and preferences for land use. For instance, through the Hanford future use planning process, representatives of the agricultural sector stated that they did not see agricultural value in much of Hanford land because public perceptions of radioactive contamination might give Washington State produce an unmarketable image. Such important information might not come to government's attention without such public forums. Finally, early and effective public participation, as evidenced at Hanford (while a benefit in its own right), may help to build support for subsequent remedy selection decisions.

Actions

1. The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) should be amended to provide more explicit encouragement of and direction for a cleanup process that incorporates early future use planning (i.e., the identification of a reasonable set of future land and facility use assumptions based on a number of criteria including current and expected future site use).

The intent is that reasonable land use assumptions would guide the cleanup process, from development of risk scenarios to remedy selection. This suggested clarification of the statute would help to ensure that such planning would occur as cleanup progresses across federal sites. In anticipation of an eventual reauthorization of CERCLA, the administration should also issue an explicit policy encouraging the implementation of future site use planning early in the remediation process regardless of what statute governs cleanup.

2. DOE, federal and state regulators, and other stakeholders should work together to address land use planning at DOE sites while CERCLA is being reauthorized.

While it is true that CERCLA and the NCP do not expressly support future site use planning, it is also true that such planning is not prohibited. In addition, identification of possible future site uses has many potential benefits. The future use of land and natural resources is the clearest means of defining cleanup objectives. Establishing baseline risk assessments and identifying methods of attaining regulatory and statutory requirements can more effectively be done once such cleanup objectives are established.

For future land use planning to achieve the greatest benefits, it should:

--- be done early in the site remediation planning process;

--- be a collaborative process involving all stakeholders;

--- guide risk assessment and remedy selection to ensure that scenarios identified and evaluated are realistic and that cleanup standards that are identified are based on the best available science, protect human health and the environment, and achieve land use objectives; and

--- be carried out from a sitewide perspective, unless impossible or impracticable, so that remedial action alternatives include the range of future site use assumptions applicable to the site and can then be considered in light of their impacts on sitewide restoration strategies.

3. The cleanup of contaminated land should achieve specific standards based upon the future intended use of the site.

Cleanup should ensure protection of human health and the environment in conjunction with such future site uses. Health assessment criteria developed by the Environmental Protection Agency, the Nuclear Regulatory Commission, the National Institutes of Health, and the Agency for Toxic Substances and Disease Registry should also be used. Furthermore, DOE should work collaboratively with these agencies to gather and analyze data on exposure rates, risk, and related issues as a basis for the regulatory agencies to develop standards for cleanup of both radioactive and mixed waste (containing both radioactive and hazardous materials).

As national cleanup standards are developed, they should be designed to accommodate future land use planning, although health-based considerations should remain the primary basis for cleanup standard setting.6 Finally, EPA should work with DOE and other federal agencies responsible for cleanup to define various land categories broadly and clearly. This will help to ensure that various land use categories can be understood and applied consistently.

Implications

Early incorporation of future site use planning, identifying a reasonable set of future land and facility use assumptions and clarification of cleanup objectives, can help to streamline the cleanup process, making it more effective and efficient, while still maintaining the protection of human health and the environment as the highest priority. Clear cleanup objectives can guide the development of risk assessments to be tailored to specific alternatives for future use, potentially saving considerable time and resources, as well as aid in the selection and implementation of cleanup remedies. Furthermore, agreement about the appropriate remedy could potentially be achieved more easily, and expectations concerning the results of the remedial action would be clearer.

Statutory changes and development of administrative policy would help ensure that, as the law and policy are implemented, land and facility use planning would be incorporated into the cleanup process. This would be particularly helpful for agencies like DOE that are responsible for cleanup and regulated by CERCLA.

DOE has several advisory boards in place and is currently reviewing them and establishing others based on the recommendations of the Federal Facility Environmental Restoration Dialogue Committee. With these boards, DOE has or will have the institutional mechanisms in place to ensure a collaborative land use planning process. Within this context, land use and facility use planning could take place.

In the absence of national cleanup standards, future land and facility use could be instrumental in determining cleanup levels that would protect of human health and the environment. These cleanup levels would be tied to specific land and facility use objectives.

Targeting cleanup objectives based on future land and facility use will help identify emerging technologies that may be appro-priate at a particular site. In addition, the development of new technologies can be focused clearly on meeting cleanup objectives.

The funding allocated for research and development of new and emerging technologies can be targeted more effectively at meeting needs clearly defined by early future use planning.

Fiscal Impact

See Fiscal Impact statement in DOE01 "Improve Environmental Contract Management." The discussion of the benefits from DOE01 envisioned that the recommendations would be implemented together.

Endnotes

1. "Remedies" are particular methods chosen to clean up a site. "Applicable or relevant and appropriate requirements" (ARARs) are still primarily federal standards promulgated under other laws such as the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, etc. Over the last few years, however, states have begun to promulgate their own state regulations under these statutes, and CERCLA has had to increasingly defer to state regulations. In some cases, state regulations are more stringent than federal regulations, which means that DOE will have to meet different standards depending on the state in which the facility is located.

2. The nine criteria applicable to the remedy selection decisions, as specified by ¤300.430(e)(9)(iii) of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), are: (1) overall protection of human health and the environment; (2) compliance with ARARs; (3) long-term effectiveness and permanence; (4) reduction of toxicity, mobility, or volume through treatment; (5) short-term effectiveness; (6) implementability; (7) cost; (8) state acceptance; and (9) community acceptance. Protection of human health and compliance with ARARs are "threshold criteria" that all alternatives must satisfy (unless an ARAR waiver is granted). The next five criteria, including cost, are "primary balancing criteria," less important than threshold criteria but of equal weight among themselves. State and community acceptance are "modifying criteria" and are given less weight than threshold or "balancing criteria."

3. The proposed final report of the Secretary of Energy's Advisory Board Task Force on Radioactive Waste Management described public trust and confidence in the EM program in this way: "The institutional context within which the Office of Environmental Restoration and Waste Management (EM) operates presents opportunities for developing institutional trustworthiness. EM has a broader conception of what is needed to build trustworthiness and has set in place an elaborate structure doing so. It has not demonstrated, however, that it can sustain trustworthiness as it grapples with highly contentious issues nor has it developed a strategy for managing constraints that might create vicious cycles for it as well." U.S. Department of Energy, Secretary of Energy Advisory Board, Earning Public Trust and Confidence: Requisites for Managing Radioactive Waste (Washington, D.C., June 1993), executive summary and pp. 46-48.

4. "National sacrifice zones" refers to areas that might be deemed so contaminated that they would not be cleaned up.

5. Lippman, Thomas W. "Nuclear Arms Center Heads Slowly to Oblivion," The Washington Post (May 15, 1993), p. A4.

6. Future use considerations should be an important component of setting cleanup standards; however, future uses cannot be guaranteed indefinitely, nor can it be assumed that active institutional controls (e.g., security guards, on-site management, etc.) will remain in place over the long term. In fact, EPA Standards for the Disposal of Spent Nuclear Fuel, High Level and Transuranic Nuclear Waste (40 CFR Part 191 b) authorized under the Atomic Energy Act and the Nuclear Waste Policy Act, specifically states that, for the purposes of radioactive waste disposal, active institutional controls cannot be assumed to be in place for any longer than 100 years. Standards, therefore, must be primarily driven by health-risk considerations.

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