DISCLAIMER The following is a staff memorandum or other working document prepared for the members of the Advisory Committee on Human Radiation Experiments. It should not be construed as representing the final conclusions of fact or interpretation of the issues. All staff memoranda are subject to revision based on further information and analysis. For conclusions and recommendations of the Advisory Committee, readers are advised to consult the Final Report to be published in 1995. MEMORANDUM TO: Members of the Advisory Committee on Human Radiation Experiments FROM: Advisory Committee Staff DATE: RE: Contemporary Environmental Oversight of Classified Programs This memo provides a brief update on environmental oversight of classified defense programs. More general information appears in the draft chapter on intentional releases. Specifically this memo raises two issues regarding the Environmental Protection Agency (EPA) oversight of secret federal activities. The intentional releases listed in the Advisory Committee's charter were conducted in secret and without formal environmental oversight. Since that time, a body of environmental law has sprung up to regulate environmental releases. This has led to concerns about the effectiveness of today's environmental oversight procedures for classified defense programs. These concerns are most acute for the most highly classified programs, those classified Special Access Required (SAR) and colloquially known as "black" programs. Committee staff have asked EPA, the Nuclear Regulatory Commission (NRC), the Department of Defense (DOD), and the Department of Energy (DOE) a series of questions designed to understand how environmental oversight works for classified programs. To date, only EPA has provided a response (Attachments 1 and 2). This response raises three potential problems: . The EPA office responsible for reviewing Environmental Impact Statements (EISs) has no personnel with clearances to know about "black" defense programs. Although it is possible that the EIS for a "black" program could be classified at a lower level, the lack of suitably cleared personnel raises serious questions about EPA's ability to review such programs. . EPA keeps no records of classified EISs, limiting its ability to provide continuing oversight of these programs. 1 . Although EPA has a statutory responsibility to review the environmental impacts of federal programs, EPA relies on other agencies to submit EIS's for review. The Committee has also received information on the possible lack of environmental oversight at a particular facility, a highly classified air force base near Groom Lake, Nevada. This facility is the subject of two lawsuits. One alleges the open-air burning of toxic materials, a criminal violation of the Resource Conservation and Recovery Act. The other alleges the failure of EPA to exercise its responsibility to review this facility under the Federal Facilities Compliance Act. The attached Freedom of Information request and EPA response (Attachments 3 and 4) appear to indicate that EPA has not reviewed this facility. 2