Carl S. Pavetto
Attorney
Silver Spring, MD
ABSTRACT
Pursuant to the Atomic Energy Act of 1954 and its amendments and the federal government's Reorganization Plan of 1970, the U.S. Environmental Protection Agency ("EPA" or "U.S. EPA") obtained authority to "...establish generally applicable environmental standards for the protection of the general environment from radioactive material." This authority is not plenary, however, and what has resulted from this incomplete authority and from deliberate approaches taken by the U.S. EPA in the regulation of radioactive materials, is that EPA's program for radioactive materials is a patchwork of requirements. Sometimes the requirements are inconsistent from rule to rule; sometimes they are contradictory; and sometimes there are gaps in the regulatory program.
A key issue, and the focus of this paper, is: how transportable is EPA's program for the external regulation of the U.S. Department of Energy ("DOE"). External regulation of DOE is Recommendation 94-2 of the Defense Nuclear Facilities Safety Board ("DNFSB") based upon the Board's analysis and Secretary O'Leary's agreement, shortly after the Board's recommendation was issued, to implement it.
Accordingly, this paper explores:
Thus, the analysis in this paper is oriented toward determining whether or how much of EPA's regulatory program could be applicable to the external regulation of DOE as recommended by the DNFSB and agreed to by Secretary O'Leary,
CONCLUSIONS
This analysis concludes that there are two primary aspects of transferring EPA's or EPA-type regulatory programs to the DOE environment -- technical and legal.
Regarding the technical aspect, the conclusion is that while there is no conceptual reason why EPA's approaches could not be used in the DOE environment, they could not be simply transferred. Instead, specific technical modifications would have to be made to fill gaps and clarify regulatory inconsistencies. Regarding the second aspect, the conclusion is that EPA currently does not have the authority to be the external regulator of DOE. (This paper does not address the issue of whether another federal agency such as the Nuclear Regulatory Commission (NRC) has sufficient existing authority.)
GAPS IN EPA'S STATUTORY AUTHORITY
While Congress may have given the federal government essentially plenary power to regulate radioactive materials via the Atomic Energy Act of 1954 ("AEA"), EPA's authority is actually very limited.
Pursuant to the AEA, it was the old Atomic Energy Commission ("AEC") which was given broad, if not plenary, power to regulate all aspects of radioactive materials and radiation in the U.S. In later developments, the Energy Reorganization Act of 1974 split the AEC's authority into its regulatory functions under the AEA, which were assigned to the NRC, and its research, development and production functions which were transferred to the Energy Research and Development Administration ("ERDA") as the predecessor to the DOE.
This split was both incomplete, however, and important to acknowledge in this paper because one of the consequences of this split is the reason for the DNFSB analysis that resulted in the recommendation that the DOE be externally regulated, Under the 1974 split in the AEC's authority pursuant to the AEA, the NRC's regulatory authority was limited to privately-owned facilities and ERDA retained the authority to regulate itself. As mentioned, this internal-ERDA, now internal-DOE, regulatory authority exists to this day and is the basis for recommendations such as that of the DNFSB for external regulation.
EPA's authority to regulate radioactive materials and radiation derives from a delegation of authority in Reorganization Plan No. 3 of 1970. Its authority is limited to the power to "establish generally applicable environmental standards for the protection of the general environment from radioactive material."
Unlike NRC, the EPA does not enforce the standards contained in its regulations. This, therefore, is a significant gap in the EPA's regulatory program. In other words, EPA could not regulate DOE unless EPA's authority is changed to provide the required authority.
Specifically, the term "general environment" has been interpreted to mean land water, air, biota, people, etc., outside the boundaries of facilities in which radioactive materials are created, used, disposed of, or managed. The gap is in the fact that EPA does not have authority inside the boundaries of facilities such as those that DOE uses for its research, development and production functions. Thus, the term "general environment" is limiting, not all-encompassing. This gap would have to be filled or bridged regardless of whether DOE's external regulatory would be EPA, NRC, or some other regulatory authority.
Federal statutes subsequent to the AEA, like the Uranium Mill Tailings Radiation Control Act, Nuclear Waste Policy Act, Energy Policy Act and Waste Isolation Pilot Project Land Withdrawal Act have steadily increased EPA's authority over some types of federal nuclear facilities. However, they have not filled or bridged the major gap referred to above. As an example, of the gap in EPA's regulatory authority, one manifestation of this is that EPA regulates the uranium fuel cycle (40 CFR Part 190) but not operations inside nuclear power plants or facilities of the Department of Energy's for nuclear weapons research, development or production.
Another reason why EPA's regulatory program is not directly transportable is because of inconsistencies in interpretations of the term "general environment." In any attempt to develop an external regulatory program for DOE, all of the definitions relating to areal extent of regulation would need to be collected, reviewed and made consistent, presumably by Congress.
These variations in the areal extent of EPA's authority include, for example, the definition in 40 CFR Part 190 for the uranium fuel cycle which is the relatively inclusive term 66 general environment." The same can be said for 40 CFR Part 191 for the regulation of high-level radioactive waste, spent nuclear fuel and transuranic radioactive waste in Subpart A for the regulation of the management and storage operations. However, in 40 CFR Part 191 Subparts Subparts B and C, for the regulation of disposal and for the protection of groundwater, the area governed by EPA's standards is limited to a "subarea" of the "general environment" namely the "accessible environment outside of a controlled area." Also in 40 CFR Part 192 relating to uranium mill tailings piles and their--cleanup, EPA's standards define yet another area, the area "outside the smallest perimeter of residual radioactive material."
All of the above definitions tend to be narrower in focus than the term "general environment"; however, all of these definitions are acknowledgments of the gap that exists in that EPA has no authority outside of the "general environment" (that is, inside a facility). In the preproposed rule in 40 CFR Part 196 regarding the cleanup of contaminated sites, EPA takes a different approach altogether. In 40 CFR Part 196, the areal extent of EPA's purported authority is expansive. Since 40 CFR Part 196 deals with the remediation of contaminated sites, and presumably since this calls for an expansive approach in order to afford maximum protection to the public, EPA is proposing to include under its regulatory purview "any location on or off a site at which there is individual exposure." This proposed definition is certainly more sweeping than its predecessors.
The upshot of the foregoing discussion is that EPA does not have the statutory authority to enforce its own regulations for radioactive materials; its authority is limited to the environment (and the inside of facilities is not considered to be the "environment"); furthermore, within its own regulatory program where it has promulgated or is contemplating regulations dealing with radioactive materials, the agency has adopted different definitions of the term "general environment" to suit its particular needs.
Both of the gaps, and the inconsistencies in the definition of "general environment". would have to be rectified as a prerequisite to any program to externally regulate DOE whether or not the external regulator is EPA.
CONSISTENCIES, AND GAPS AND INCONSISTENCIES IN EPA'S REGULATORY APPROACH
EPA's regulatory approach to different aspects of regulating radioactive materials has significant consistencies throughout, but also has certain inconsistencies that would need to be addressed in any program for the external regulation of DOE. By its own admission in the preamble to the proposed rule 40 CFR Part 193 for the regulation of low-level radioactive waste (LLRW), EPA lists one of the justifications for the proposed LLRW rule in the first place as helping to rectify the current patchwork of regulations.
The consistency in approach is that EPA focuses on human health protection. Its approaches over the years has evolved as the agency moved from its first exercise of authority under the Atomic Energy Act to promulgate 40 CFR Part 190 for the uranium fuel cycle to its most recent proposals for 40 CFR Part 193 for LLRW and 40 CFR Part 196 for contaminated site remediation.
In 40 CFR Part 190, promulgated in 1977, EPA limited population and individual exposures near nuclear fuel cycle operations due to short-lived fission-produced materials and naturally occurring materials through standards of annual dose equivalents to the whole body, the thyroid and to any other organ. The agency also limited potential population exposure to the build-up of long-lived radioactive materials entering the general environment from any part of the fuel cycle. In its approach to 40 CFR Part 191 for high-level waste, spent nuclear fuel and transuranic radioactive waste, however, while EPA decided that compatibility with the related standards in 40 CFR Part 190 was an important aspect of its approach to 40 CFR Part 191, the agency neglected to adopt or explain why it did not adopt cumulative release limits to prevent the build-up of radioactive materials in the environment in Part 191 as it did in 40 CFR Part 190.
In its approach to 40 CFR Part 193 a proposed regulation for LLRW, EPA would establish limits on individual exposures in the general environment consistent with its approaches in 40 CFR Part 190 and 40 CFR Part 191. In addition, EPA proposes in 40 CFR Part 193 to establish ground water protection standards consistent with those developed pursuant to the Safe Drinking Water Act and those it adopted in 40 CFR Part 191.
Regarding individual protection under 40 CFR Part 193, EPA proposed limits of 15 mrem annual committed effective dose for LLRW management, storage and disposal. This represents a lifetime fatal cancer risk of 5 X 10(-4). It is, however, somewhat higher than the risk associated with other EPA regulations. The official explanation is that 40 CFR Part 193 considers all environmental media and all pathways. Also, the standard in 40 CFR Part 193 is expressed in the more current CED methodology although not without certain departures namely the specification of an "annual" CED and the inclusion of direct radiation doses.
Regarding environmental protection under 40 CFR Part 193, EPA's approach is consistent for the protection of ground water as it is througout its regulatory programs for radioactive materials. In each case, EPA relies on the drinking water protection standards it has previously promulgated pursuant to the Safe Drinking Water Act and, when it comes to standards applicable to the disposal of radioactive materials, EPA relies on environmental protection standards it has promulgated pursuant to the Resource Conservation and Recovery Act for hazardous waste.
Thus, while there are many consistencies in the technical approach taken by the EPA for the regulation of radioactive materials, there are inconsistencies like the lack of consideration of the build-up of radioactivity in 40 CFR Part 191, the fact that EPA does not regulate special nuclear material, and the fact that its proposed regulation for LLRW does not identify Greater-Than-Class-C waste, all of which would have to be examined in developing a framework for the external regulation of DOE.
TRANSPORTABLE COMPONENTS OF EPA'S REGULATORY PROGRAM
Several aspects of EPA'S regulatory programs are probably transportable to the external regulation of DOE especially if one looks beyond the regulations in 40 CFR Parts 190-196. These are highlighted below and include programs under the Clean Air Act ("CAA"), Safe Drinking Water Act ("SDWA"), Resource Conservation and Recovery Act ("RCRA") and Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA").
Clean Air Act Under the Clean Air Act, EPA has plenary authority, independent of the AEA, to regulate radioactive air pollutants. Specifically, Section 112 of the Clean Air Act requires EPA to establish National Emission Standards for Hazardous Air Pollutants (known as "NESHAPS") for those pollutants which the agency determines "cause or contribute to air pollution ..." and gives EPA the authority to include radionuclides which it did in a rule that it promulgated on December 27, 1979, by listing eight radionuclides as hazardous air pollutants. Thus, any "blueprint" for external regulation of DOE, particularly any plan that would contemplate EPA as being the regulatory authority, would need to consider the existence of Section 112 and EPA'S authority and regulatory actions the agency has taken pursuant thereto.
Safe Drinking Water Act Under the Safe Drinking Water Act, EPA has the authority to develop drinking water standards which it does in the form of enforceable maximum contaminant levels (MCLS) and desirable maximum contaminant level goals (MCLGs). The MCLGs are somewhat like ALARA in that functionaries should strive to achieve the drinking water quality standards in the MCLGs regardless of the fact that the MCLs may have been achieved. In any case, there are MCLs for radionuclides and these MCLs are ready for adaptability specifically or by reference in any program for the external regulation of DOE. Again, any program for the external regulation of DOE would need to consider the authorities resident in the Safe Drinking Water Act.
Resource Conservation and Recovery Act Application of the Resource Conservation and Recovery Act ("RCRA") has spawned and would continue to raise some interesting problems in the area of external regulation particularly in the area of regulating low level waste. RCRA gives EPA [and the states] very broad authority to regulate all aspects of hazardous waste management and disposal. RCRA specifically excludes from regulation thereunder all radioactive materials regulated by the Atomic Energy Act. However, federal courts have ruled that mixed waste is subject to regulation under RCRA unless the radioactive constituents are physically separated from the hazardous matrix or medium.
This is an issue both because of the existence of low-level mixed waste and the fact that DOE generates the lion's share of mixed waste in the U.S.
Comprehensive Environmental Response Compensation and Liability Act Finally, CERCLA has some interesting aspects as they apply to the EPA'S regulation, that is, cleanup, of radioactive contamination. CERCLA is concerned with the remediation of contaminated sites but it does not give EPA the power to promulgate cleanup standards per se; rather CERCLA gives EPA that authority to borrow standards from other sources as ARARs -- the "applicable or relevant and appropriate requirements" that CERCLA functionaries use to determine the level of cleanup. Accordingly, one difference between EPA's authority under CERCLA and its authority under the AEA, Reorganization Plan No. 3 and UMTRCA, is that CERCLA does not give EPA authority to promulgate new cleanup standards. But with the proposal in 40 CFR Part 196, EPA would, in fact, be promulgating new cleanup standards what could be incorporated as ARARs pursuant to CERCLA.
Beyond CERCLA, but nevertheless concerning contaminated site remediation, it is obvious that in the development of a blueprint for the external regulation of DOE, some of the focus would have to be on similarities and differences between CERCLA and UMTRCA.
SUMMARY
The Defense Nuclear Facilities Safety Board has recommended that DOE be externally regulated. Secretary O'Leary has agreed and has committed the Department to external regulation. One of the obvious first places to look for a blueprint for external regulation is the regulatory program of EPA for the management and control of radioactive materials and the protection of human health and the environment from radiation.
Looking at what EPA has done since 1977, one finds that while the agency has been adopting radiation protection standards, its efforts have been hindered by gaps in its authority, a lack of scientific information and uncertainties in the technical areas of radiation protection. The result has been a general patchwork of regulations with specific inconsistencies from regulation to regulation.
Consequently, EPA's regulatory program is not directly adoptable as a blueprint for the external regulation of DOE nor would EPA presently be able simply to step in as the external regulating agency.