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. TAB H PART 1B þþþDRAFTþFOR DISCUSSION PURPOSESþþþ MEMORANDUM TO: Advisory Committee on Human Radiation Experiments FROM: Advisory Committee Staff DATE: November 9, 1994 RE: Current Environmental Regulations and Oversight This memo provides a preliminary outline of the environmental laws and regulations that deal with environmental releases of radioactive materials. These include both substantive rules that limit the magnitude of environmental impacts and the procedural rules and oversight responsibilities that govern how the government addresses those impacts. The memo pays particular attention to provisions in these laws and regulations that may provide exceptions on national security grounds or otherwise permit releases to occur, in whole or in part, in secret. The goal of this memo is to provide a preliminary basis for considering how intentional releases of radioactive materials that occurred in the past might have fared under current rules. This memo is based on a limited number of documents and conversations with experts, and will be supplemented in future briefing books. In outline, this memo begins with a discussion of the National Environmental Policy Act (NEPA), which established procedural requirements for the analysis of environmental impacts of actions of the federal government. The next sections discuss the main substantive constraints on the environmental release of radioactive materials. These constraints come under the Clean Air Act and the Atomic Energy Act, although many other statutes and regulations may also be relevant. The final section discusses exemptions to these procedural and substantive requirements on grounds of classification or national security. I. NATIONAL ENVIRONMENTAL POLICY ACT The National Environmental Policy Act requires that the federal government take into account and publicize the environmental impact of its actions. These requirements serve the dual purposes of informing the public and forcing agencies of the federal government to inform themselves of the environmental impacts of their actions. The implementing regulations establish three levels of action and their corresponding obligations for analysis and reporting: 1. For "major federal actions significantly affecting the quality of the human environment" the agency in charge must prepare an Environmental Impact Statement (EIS) that analyzes the environmental impacts of its planned course of action as well as any alternatives that would achieve the same goals. 2. If an agency is uncertain whether a planned action meets this threshold, the normal practice is to prepare an Environmental Assessment (EA), outlining the impacts of the proposed program. Unless this EA reaches the finding of "no significant impact," a full EIS should follow. 3. Finally, each agency may establish "categorical exemptions" for broad categories of activities that it concludes have "no significant impact" on the environment.The implementing regulations for NEPA provide opportunities for public involvement. These include the requirement that an agency file any EIS with EPA, who publishes in the Federal Register notices of all EISs received. The agency should address these environmental impacts and seek public input as early in the life of a program as possible. A related provision, Section 309 of the Clean Air Act, requires EPA to "review and comment" on proposed actions by other federal agencies, and authorizes EPA to refer any action deemed "unsatisfactory from the standpoint of public health or welfare or environmental quality" to the Council on Environmental Quality (CEQ) within the Executive Office of the President. This includes the requirement that EPA review and comment on any EIS. In addition to the procedural requirements of NEPA, there is a variety of statutes and regulations that limit the quantity and type of the environmental impacts of actions by federal agencies. What follows are preliminary summaries of what appear to be the main regulatory provisions. II. CLEAN AIR ACT The Clean Air Act contains numerous provisions to protect public health and environmental quality. Atmospheric releases of radioactive materials are covered under the National Emission Standards for Hazardous Air Pollutants (NESHAP) program of the Clean Air Act. The emission standard is based on the goal of limiting the lifetime risk of induced fatal cancer to a maximally exposed individual to approximately one in 10,000. The implementing regulations translate this into a maximum individual exposure of 10 millirem/year for airborne emissions that result in exposure through any environmental pathway. This translates into a risk of 5.6 excess fatal cancers/10,000 people. [BEIR V, Table 4-2, pp. 172-173.] III. ATOMIC ENERGY ACT The Atomic Energy Act also contains provisions to limit public health risks from most radioactive materials. [Specifically, the Atomic Energy Act refers to source materials (e.g. natural uranium), special nuclear materials (e.g. plutonium), and byproduct materials (e.g. fission products). This list does not include other naturally occurring radioactive materials, such as radium or radon.] Current EPA guidance on this issue restrict the exposure of a maximally exposed individual to 500 millirem/year from all sources, but EPA has proposed revising that limit to 100 millirem/year. In practice, only a fraction of this total should come from any single source, and the proposed EPA guidance makes this explicit. The Nuclear Regulatory Commission (NRC) also has important responsibilities for implementing the requirements of the Atomic Energy Act. Current NRC regulations would allow a single source to account for the entire exposure limit. Regulatory authority under the Atomic Energy Act is widely dispersed among the federal agencies. Each agency is responsible for developing, implementing, and enforcing its own internal rules for implementing the requirements, subject to overall EPA guidance. There is no requirement that any agency publish its internal guidelines implementing the provisions of the Atomic Energy Act, although in the last few years the Department of Energy has begun to publish draft regulations in the Federal Record and seek public comment on those regulations. Current DOE standards under the Atomic Energy Act include the 100 millirem/year limit on the dose to the maximally exposed individual, with a reporting threshold at 10 millirem. Any planned action that would result in a greater maximum individual exposure requires a special report. DOE has also proposed a reporting threshold on the overall population dose -- the aggregate dose to the entire exposed population -- of 100 person-rem. Beyond these thresholds, each DOE facility must provide an annual report on individual and population radiation exposures. DOE has also adopted the semi-quantitative As Low As Reasonably Achievable (ALARA) analytical tool for managing risks in a cost-effective way. IV. OTHER REGULATORY STATUTES Several other environmental statutes may be relevant to the intentional release of radioactive materials into the environment.[ The Clean Water Act limits the emission of pollutants into inland and coastal waterways, but does not apply to radioactive materials, except those not covered by the Atomic Energy Act. ] The Safe Drinking Water Act limits the level of exposure to radiation from drinking water to 4 millirem/year from beta and gamma emitters.[ The limits for alpha emitters are expressed in terms of concentrations measured in picocuries/liter. ] This standard applies to the water authority that supplies the public with water and not to federal facilities that release materials into the water supply.[ In principle, however, the water authority could sue a third party to recover the costs of decontamination. ] The Resource Conservation and Recovery Act (RCRA) regulates the disposal of solid wastes. RCRA does not directly regulate the disposal of radioactive materials covered by the Atomic Energy Act, but it does regulate the disposal of other hazardous substances when they are mixed with radioactive materials. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, governs the cleanup of contaminated sites, including those contaminated with radioactive materials. CERCLA also allows people to sue to stop the release of hazardous substances into the environment--the same materials regulated by the Clean Air Act under NESHAP--including radioactive materials. For the most part, however, RCRA and CERCLA apply to the contamination that results from an environmental release of radioactivity, but they are unlikely to prevent a release from happening. V. FEDERAL FACILITIES COMPLIANCE ACT The Federal Facilities Compliance Act requires facilities of the federal government to comply with substantive environmental requirements, including those of the Clean Air Act and the Atomic Energy Act. Any new federal action, such as the construction of a new facility or the expansion of an existing one, requires EPA approval under those statutes, certifying that the action as planned will not violate the emission limits. Furthermore, agencies are required to report on their emissions to EPA, and are subject to fines if they violate the emissions limits. VI. ENVIRONMENTAL JUSTICE On February 11, 1994, President Clinton signed Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations." This order requires each federal agency to address disproportionate human health or environmental effects of its policies. This includes requirements to assess those impacts and to seek greater public participation in environmental planning and policy making. Secrecy and National Security The authority to classify information comes primarily from the Atomic Energy Act, which pertains to nuclear weapons-related information, and from Executive Order 12356, which applies to other national security information. In each case, authority is delegated to agency officials to determine what information must be kept secret to protect national security. In some cases, the very existence of a program is kept secret. Both the procedural requirements of NEPA and the substantive requirederal government that are classified or that involve issues of national security. According to the CEQ regulations implementing NEPA, "environmental assessments and environmental impact statements which address classified proposals may be safeguarded and restricted from public dissemination in accordance with agencies' own regulations applicable to classified information." The EA or EIS may be classified in whole or in part. EPA is still obliged to review and comment on any EIS, and the normal practice is to send an EPA employee with appropriate clearances to the agency in question to review the classified information. EPA does not receive or include in its records copies of a classified EIS or classified annexes to an EIS. These secret procedures do not relieve an agency of the obligation of an agency to inform itself of the environmental impacts of its actions, nor do they relieve EPA of the requirement to review those impacts. It also maintains the roles of EPA and the CEQ in oversight of agency activities. However, it effectively eliminates the duty to inform the public or to permit public input in decision making. In addition, it may eliminate the ability of members of the public to sue in court for the enforcement of NEPA.[ Court decisions have ruled that information that may determine whether an EIS is required may be kept secret, and that the court cannot be required to review of classified portions of an EIS. Steve Dycus, Professor, Vermont School of Law, personal communication with Advisory Committee staff member Dr. Mark Goodman, 10/31/94. ] In another exception to NEPA, the implementing regulations of the CEQ apply to actions by federal agencies, but not to actions of "the Congress, the Judiciary, or the President, including the performance of staff functions for the President in his Executive Office." For example, no EIS was required for the North American Free Trade Agreement (NAFTA).[ Steve Dycus, personal communication with Dr. Goodman, 10/31/94. The court decided that the actions of the U.S. Trade Representative in negotiating NAFTA were staff activities within the Executive Office of the President, even though the provisions of NAFTA would be carried out by other federal agencies. It is not clear how broadly this might extend to decisions made by the President but carried out by federal agencies. ] In any case the President has authority over the CEQ and is therefore the ultimate arbiter of the adequacy of agency procedures under NEPA. There do not appear to be any exceptions for classified information to the approval and reporting requirements for federal agencies under the Clean Air Act and other substantive environmental statutes. A possible exception is the Atomic Energy Act, under which federal agencies are self-regulating; this is a subject for further research. Current DOE reporting requirements under the Atomic Energy Act allow each DOE facility to provide aggregated information about its release of radioactive materials, which could greatly reduce the sensitivity of the reported information. However, many if not all of the substantive environmental statutes contains a national interest exception; the President may exempt any action from environmental requirements on the grounds of "paramount national interest," a broader concept than "national security." This has only been invoked openly on one occasion, in 1980, in relocating Cuban refugees from the Mariel boat lift. We do not have any information on whether any substantive requirements or their corresponding reporting requirements have been invoked in secret for secret activities. The President must report to Congress annually on all exemptions to substantive environmental laws on grounds of paramount national interest, together with the reasons for those exemptions. We are not aware of any other reporting requirements that would empower Congress to exercise effective oversight of the implementation of environmental safeguards for classified programs. Attachments: 1: The National Environmental Policy Act of 1969, as amended. 2: Section 309 of the Clean Air Act. 3: Agency requirements under the National Environmental Policy Act, 40 CFR Part 1507. See especially section 1507.3(c) for a discussion of classification.