Application of CERCLA Response Authority to Department of Energy Decommissioning Activities

Introduction

The Comprehensive Environmental Response, Compensation, and Liability Act[1] (CERCLA) provides expansive authority to the Federal Government to protect health, welfare, and the environment from risks posed by hazardous substances. This authority to respond to releases or threatened releases of hazardous substances applies to the decommissioning activities [2] of the Department of Energy (DOE) when the jurisdictional thresholds established by CERCLA are met.

This paper provides an analysis of relevant statutory, regulatory, and policy requirements that help define the implications of conducting decommissioning activities in compliance with CERCLA. This analysis leads to the following conclusions:

• decommissioning activities must be conducted in a manner consistent with CERCLA response authority
• DOE is authorized by Executive Order 12580 to use CERCLA authority to determine the most appropriate response to prevent or eliminate risks from releases or threatened releases of hazardous substances into the environment
• DOE must exercise this CERCLA authority in conjunction with the Environmental Protection Agency (EPA) and DOE stakeholders
• CERCLA requirements vary depending on the risks posed by a specific facility and the response action that is most appropriate to address those risks
• DOE and EPA should develop an Interagency Policy to facilitate streamlined compliance of decommissioning activities with CERCLA requirements.

A key point is that even though CERCLA will apply to most decommissioning activities, this conclusion does not determine what type of CERCLA response action is appropriate for a given facility, or how such response should be implemented. CERCLA applicability means, instead, that decommissioning activities must proceed consistent with a specific statutory and regulatory framework that provides significant authority to DOE as well as significant compliance and oversight responsibilities for EPA, States, and stakeholders.

Analysis

A. Jurisdictional Thresholds for CERCLA Response Authority

Broadly speaking, CERCLA authority over hazardous substances may be divided into two general categories: release notification requirements [3] and response action requirements. CERCLA response authority[4] is available to the Federal Government whenever four jurisdictional thresholds are satisfied. A response under CERCLA is available only when:

• "hazardous substances" are
• "released" or there is a "substantial threat" of a release
• into the "environment" and
• response is necessary to protect public health, welfare, or the
• environment.[5]

Most of the key terms relevant to these statutory thresholds are defined by CERCLA. CERCLA defines hazardous substances to include specified substances regulated under the Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act (RCRA), and Toxic Substances Control Act (TSCA)[6] . The EPA has promulgated a list of all CERCLA hazardous substances at Title 40 of the Code of Federal Regulations (40 CFR), Part 302. Appendix B of Part 302 comprises a list of more than 650 specific radionuclides that are defined as CERCLA hazardous substances. There are no relevant exemptions that would exclude any of these listed radionuclides from the definition of a "hazardous substance."

A hazardous substance is "released" as a result of "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment."[7] As this definition indicates, the release or threat of release must be into the "environment." The term "environment" is defined broadly to include any "surface water, ground water, ... land surface or subsurface strata, or ambient air" within or under the jurisdiction of the United States.[8] While this definition of "environment" includes all conceivable natural media (under U.S. jurisdiction), it does not necessarily include buildings or other structures. In other words, the location of hazardous substances within a building does not constitute a release of such substances into the "environment."[9] For a release to have occurred, the hazardous substance must be located in or on the surrounding soil, subsurface soil, surface or groundwater, or ambient air.[10]

Radionuclides defined as hazardous substances are exempt from CERCLA response action authorities when such radionuclides have not been released or do not pose a substantial threat of a release. For example, CERCLA provides that there is no "release" of "source, byproduct, or special nuclear material"[11] from:

• a "nuclear incident"[12] subject to the financial protection requirements established by the Nuclear Regulatory Commission (NRC) pursuant to section 170 of the Atomic Energy Act (AEA)[13]
• any processing site designated under either section 102(a)(1) or section 302(a) of the Uranium Mill Tailings Radiation Control Act (UMTRCA).[14]

Under these limited circumstances, the disposal, discharge, or other placement of source, byproduct, or special nuclear material into the environment, and any remediation of such material, is not subject to CERCLA.

Any other circumstance in which a radionuclide listed by 40 CFR Part 302 is "released,"[15] or a release is threatened, into the environment may trigger CERCLA response authorities. For CERCLA response authority to be available, however, the release or threatened release into the environment must pose a potential threat to public health, welfare, or the environment.[16] Determining whether each of these thresholds has been met is not always simple. For example, determining whether a threat of a release is "substantial" or whether action is "necessary to protect health, welfare, or the environment" will depend on the specific circumstances presented by a site and may be subject to different interpretations. Since EPA has responsibility for ensuring compliance with CERCLA requirements, if EPA determines that a threat of release is "substantial" and that response action is necessary to protect health, welfare, or the environment, then under section 106 of CERCLA EPA may order DOE to take appropriate action. Nevertheless, as the following section discusses, when DOE has determined that CERCLA response action is appropriate, DOE is authorized [17] to evaluate, select, and implement the response action that DOE determines is appropriate to protect health, welfare, or the environment from risks posed by the release or threatened release. To facilitate EPA oversight responsibilities, such response action should be coordinated and conducted in consultation with EPA.

B. Scope of CERCLA Response Authority Delegated to DOE

Executive Order 12580 "Superfund Implementation"[18] delegates from the President to the Secretary of Energy CERCLA "lead agency"[19] authority to conduct:

• Removal actions
• Remedial actions
• "Any other response measures" consistent with the NCP.[20]

The exercise of such response authority must be consistent with the requirements of section 120 of CERCLA, which requires Federal agencies to comply with all guidelines, rules, regulations, and criteria applicable to private facilities concerning preliminary assessments, "evaluations" under the NCP, listing on the NPL, and the conduct of remedial action. [21] Section 120 also requires that interagency agreements (IAGs) be entered to govern remedial action at Federal facilities. Such IAGs must provide for EPA remedy selection approval. Such IAGs are required, however, only for facilities that are listed on the NPL. For facilities that are subject to an IAG, the roles and authority of DOE and EPA will be defined, in part, by the terms of the agreement. For non-NPL facilities, DOE has full response action authority subject to the requirements of CERCLA and the NCP.[22]

C. Range of CERCLA Response Authority Potentially Applicable to Decommissioning Activities

The full range of CERCLA response actions may be applicable to decommissioning activities. This range of response actions includes:

• emergency removal actions
• time critical removal actions
• non-time critical removal actions
• interim remedial actions
• final remedial actions.[23]

What particular type of response action is appropriate will depend on the particular circumstances presented by the specific facility that is subject to decommissioning activity.

The broad range of response action available under CERCLA is designed to provide flexibility for Federal agencies to select and implement a response that is most appropriate for the specific circumstances presented by a release or threatened release. Recent DOE/EPA Interagency "Guidance on Accelerating CERCLA Environmental Restoration at Federal Facilities" (8/22/94) (hereinafter "Acceleration Guidance") reflects an effort by both agencies to better use this flexibility to restore DOE facilities. The Acceleration Guidance encourages DOE and EPA staff to "develop decisions that appropriately address the reduction of risk to human health and the environment as expeditiously as the law allows." [24] In particular, the Acceleration Guidance endorses an increased use of removal actions and interim remedial actions, as well as the development of presumptive remedies. As the Guidance puts it:

"Strong consideration should be given to non-time critical removals ... that will achieve results comparable to a remedial action, but which may be completed in less time.[25]

Federal agencies, with the cooperation and concurrence of EPA and the states, should focus on developing standardized solutions consistent with the requirements of the NCP ... Standardized approaches offer the opportunity to streamline the investigation and cleanup process, provide consistency in dealing with recurring problems and should result in significant saving of resources at all agencies."[26]

Reflected by this Guidance is the increasing awareness of both DOE and EPA that the flexibility provided in the NCP must be utilized to reduce risks and achieve results without unnecessary expenditures or delays. This means that the full range of response actions should be evaluated and the most streamlined response action employed, as appropriate based on the circumstances presented by site conditions. In particular, it means that decommissioning activities should be conducted using removal action authorities, except where remedial action is necessary because the investigation and analysis required by the activity is more extensive than is appropriate for a removal action. When a removal action will not fully address the risk posed by a facility, additional removal or remedial action may be appropriate to address any remaining risk.

D. Circumstances Appropriate for Removal Actions

CERCLA and the NCP provide DOE with broad authority to determine whether removal action is appropriate, and what type of removal action to take. Removal actions may be taken when DOE determines that the action will prevent, minimize, stabilize, or eliminate a risk to health or the environment.[27] The NCP specifies that the determination that a risk to health or the environment is appropriate for removal action should be based on:

• the presence of contained hazardous substances that pose a threat of release
• the threat of migration of the hazardous substances
• the threat of fire or explosion
• the availability of an appropriate Federal or State response capability.[28]

In essence, where DOE identifies a threat of exposure to or migration of hazardous substances that poses a risk to health, welfare, or the environment, DOE is authorized by CERCLA and the NCP to exercise removal action authority to implement an appropriate response to the risks posed.[29]

The scope of activities that qualify as removal actions under CERCLA is quite expansive. Such activities may include, but are not limited to:

• site security or control precautions to reduce access or migration
• stabilization of structures or buildings
• consolidation or removal of substances or structures
• any other actions deemed necessary by the lead agency.

These general categories of activities that may be taken under CERCLA removal action authority include any activity that reduces risks or potential risks in a relatively short time-frame and can be identified as appropriate with a relatively limited amount of analysis of alternatives. Removal actions need not be immediate action, or action in response to an emergency. For example, non-time critical removals may take more than six months to plan and significantly longer to implement. In addition, the identification in the NCP of these general categories of removal action do not limit the authority of DOE to select and implement other types of removal action. The NCP specifies that listing of these activities "is not intended to prevent the lead agency from taking any other actions deemed necessary under CERCLA or other appropriate federal or state enforcement or response authorities."[30]

E. Implications for Decommissioning Program

The preceding analysis demonstrates that decommissioning actions must comply with CERCLA and NCP requirements whenever the facility poses a risk to health, welfare, or the environment from a release or threatened release of a hazardous substance into the environment. CERCLA and the NCP confer substantial flexibility for DOE to determine the most appropriate means of responding to such risks, including the flexibility to use removal actions when site conditions allow. DOE removal action authority is subject, however, to significant EPA oversight and State and public involvement requirements including those established by:

• Section 113(k)[31]
• Subparts E and I of the NCP.[32]

The nature and scope of these oversight and public involvement requirements will depend on the type of removal action taken. With respect to non-time critical removal actions, such removal actions must satisfy:

• requirements for preparing an engineering evaluation/cost assessment (EE/CA) or its equivalent.[33] An EE/CA or its equivalent must be conducted for any non-time critical removal in order to analyze removal alternatives. Sampling and analysis plans are subject to EPA approval, including field sampling plans and quality assurance project plans.[34]
• specified requirements for encouraging public participation. A formal [35]community relations plan (CRP) must be prepared based on interviews with local residents, which specifies the community relations activities to be conducted during the removal. The CRP must be prepared prior to completion of the EE/CA. In addition, a notice of the availability of, and an opportunity to submit comments on, the EE/CA must be provided to the public. Written responses to public comments must be prepared.
• requirements for development and maintenance of an administrative record established pursuant to section 113(k) of CERCLA.[36] The administrative record must include the documents and information upon which selection of a response action is based. The administrative record must be accessible to the community at or near the site, and available for review when the EE/CA is presented for public comment. Public comments, and the lead agency's response, must be included in the administrative record.

Compliance with CERCLA does not necessarily require that remedial action authority and the remedial action process be used to respond to facilities subject to decommissioning. Remedial action may be necessary or appropriate where site conditions require the level of evaluation and analysis of alternatives available only through the remedial investigation/feasibility study (RI/FS) process, or where the risk posed by a facility cannot be addressed fully by removal action. In such circumstances, decommissioning activity must proceed consistent with the requirements of CERCLA and the NCP applicable to the conduct of remedial action.[37] At facilities located on sites listed on the NPL, the conduct of remedial action must be addressed by an IAG, as required by section 120 of CERCLA.

Within this CERCLA framework, which combines DOE implementation responsibility with EPA oversight and compliance responsibility and stakeholder participation, the Decommissioning Program established by DOE can and should:

• utilize DOE expertise in devising and implementing appropriate solutions to risks posed by facilities subject to decommissioning
• retain sufficient flexibility to tailor decommissioning actions to meet specific site needs
• achieve maximum risk reduction and demonstrable progress as expeditiously as site conditions and legal requirements will allow
• ensure effective EPA oversight and stakeholder participation in compliance with CERCLA and NCP requirements.

To achieve effective and streamlined response to risks posed by facilities under decommissioning requires the development of a coordinated team approach that blends the responsibilities, concerns, and strengths of DOE, EPA, and stakeholders.

F. Developing a Team Approach to Applying CERCLA to Decommissioning Activities

Clarifying the integration of DOE and EPA responsibilities at facilities subject to decommissioning is essential to achieving streamlined, effective response action. Within the range of available CERCLA response actions, not only do NCP requirements vary but so do DOE and EPA roles and responsibilities. In addition, EPA responsibilities at Federal facilities differ from those at privately owned sites on the NPL.[38] While DOE is responsible for identifying sites where removal action is appropriate, the use of this authority must be consistent with the requirements of CERCLA and the NCP. DOE lead agency authority must be coordinated with EPA oversight and compliance responsibilities, and must ensure effective stakeholder participation. Removal action authority also must be coordinated with any subsequent remedial action that may be necessary. To achieve this coordination, guidelines for defining the appropriate level of EPA consultation and stakeholder participation should be established and implemented.

One approach to defining such guidelines is to explore opportunities for developing a DOE/EPA Interagency Policy on the application of CERCLA requirements to decommissioning activities. This CERCLA/Decommissioning Policy could build on the understandings reached in the recent EPA/DOE "Acceleration Guidance." Specifically, the CERCLA/Decommissioning Policy could represent the next step in realizing the shared goal to "develop decisions that appropriately address the reduction of risk to human health and the environment as expeditiously as the law allows."

The principal objective of a CERCLA/Decommissioning Policy would be to identify and realize opportunities for streamlining the application of CERCLA response authorities to decommissioning activities, while ensuring adequate oversight and stakeholder involvement. Strategies that should be reflected in a CERCLA/Decommissioning Policy include the increased use of removal actions and interim remedial actions, and the increased use of presumptive remedies. In particular, the CERCLA/Decommissioning Policy could:

• clarify particular circumstances or types of decommissioning activities that are suitable for the use of different types of CERCLA response authorities. For example, the Policy could define factors to be considered in identifying the circumstances that should be addressed using emergency removals, time critical removals, non-time critical removals, and interim remedial actions.
• identify opportunities to develop presumptive remedies. For example, specific categories of facilities subject to decommissioning might be identified for which a particular approach, or approaches, could be developed and accorded presumptive remedy status.
• define roles and responsibilities of DOE and EPA under different circumstances. Roles and responsibilities for the evaluation, selection, implementation, and oversight of the action would vary depending on the type of response action to be taken, the location of the facility subject to action (e.g. at NPL or non-NPL sites), and other factors to be identified.