Improving Federal Facilities Cleanup

Report of the Federal Facilities Policy Group

Council on Environmental Quality
Office of Management and Budget

Department of Agriculture	Department of the Interior
Department of Defense	Department of Justice
Department of Health and Human Services (Agency for Toxic Substances and Disease Registry)	Environmental Protection Agency
National Aeronautics and Space Administration	U.S. Army Corps of Engineers

October 1995

Executive Summary

Report: Improving Federal Facilities Cleanup

EXECUTIVE SUMMARY

I. Introduction.

The environmental cleanup of Federal lands and facilities would pose enormous scientific, technical, administrative, regulatory, and political challenges, even if resources available for this purpose were unlimited. As the Federal government works to reduce spending to eliminate the Federal budget deficit, all Federal programs must compete for a shrinking pool of discretionary resources. This reduction in resources requires concerted action to maximize the net benefits achieved from every dollar invested in Federal facilities cleanup. There is general consensus that this objective requires far more rigorous risk-based priority setting and management improvement, both within and across sites, than have been achieved to date, as well as statutory and regulatory reforms to remove impediments to success. The ability of policy makers, program managers, regulators and other stakeholders collectively to define and carry out specific reforms will determine whether the Nation's multi-billion dollar investment in Federal facilities cleanup succeeds or fails.

This report presents the analysis, conclusions, and recommendations of the Federal Facilities Policy Group (FFPG), convened by the Director of the Office of Management and Budget (OMB) and the Chair of the Council on Environmental Quality (CEQ), to review the current status and future course of environmental response and restoration at Federal facilities. Specifically, this report identifies areas of management and regulatory reform essential to protect public health and restore the environment, as well as to assure effective, efficient use of resources as the effort to clean up Federal facilities proceeds.

II. Origin of the Problem.

A. The Legacy of the Cold War and
Early Failures to Protect the Environment.

Over the last 25 years, public awareness of the human health and environmental hazards associated with the release of toxic, hazardous, and radiological substances has grown dramatically. The worst hazardous waste problems, such as the Love Canal site in New York, focused public attention on the lack of adequate Federal regulation and resources to guard against the future release of hazardous substances or to address cleanup of sites already contaminated. From the late 1970s onward, these concerns generated an array of Federal responses designed to hold responsible parties accountable for the proper handling and disposal of hazardous materials while also providing for the cleanup of existing contamination.

Lack of sensitivity to environmental protection by some agencies was also a problem on Federal lands and Federal facilities around the country. For some agencies, the sense of urgency to develop a stockpile of nuclear weapons and maintain a prepared military force during the Cold War, coupled with the secrecy and compartmentalization of information required for nuclear technology security, resulted in long delays before significant environmental problems were understood or addressed. Consequently, the extent of existing contamination on Federal lands is only now being fully characterized and the enormity of the cleanup challenge adequately recognized.

B. Addressing Real Risks to Real Communities.

Federal leadership in meeting the cleanup challenge and making appropriate cleanup decisions for the diverse portfolio of sites under Federal management is a legal and economic imperative. Some of these hazardous waste sites present a risk to public health and the environment for communities serving as hosts to essential government missions, such as weapons production and some defense operations. The Clinton Administration recognizes a moral commitment to these communities, and to current and future generations, to address the risks posed by hazardous substances at these facilities. Successive Congresses have translated this imperative into a legal mandate, reflected in a host of specific environmental compliance obligations imposed by statute on Federal agencies. The economic significance of these obligations is increasing, because efficient and effective cleanup decisions at these facilities are necessary to meet targets for reduced Federal spending and to facilitate the environmental and economic redevelopment and beneficial reuse of Federal facilities. This is especially important as the closure of Department of Defense (DOD) bases and the overall reduction in the number of agency facilities renders large numbers of facilities available for economic redevelopment or transfer to other Federal uses.

Although there is consensus on the obligation to address contamination at Federal facility sites, there is insufficient agreement on the scope of the obligation or the appropriate standards to guide decisions about remediation, restoration, and future use of Federal agency sites. Indeed, the magnitude of the challenges presented by the commitment to address the numerous, diverse, and complex environmental problems at Federal facilities underscores the importance of making the best possible judgments concerning risk, priority, cost, and cleanup levels. Yet, even as our knowledge about sites has improved, there remains considerable debate and little consensus concerning the precise nature and severity of risks presented at certain Federal facility sites, the standards that should apply in determining cleanup levels, the priority and pace of cleaning up the portfolios of sites managed by each agency, and the role of costs and benefits in developing and constraining cleanup strategies.

C. The History of Federal Facility Cleanup.

The 1980s, the first full decade of effort by Federal agencies to address contamination at their facilities, yielded little actual cleanup until the end of the decade. The Cold War secrecy that shrouded a number of Federal facilities hindered rapid assessment of the environmental conditions at those sites. At some agencies, environmental protection and restoration were not given priority among other competing agency mi ssions. Further, the lack of a separate environmental function and expertise within agencies, or of a clear mandate for environmental awareness in the performance of mission activities, hampered commitment and effort during these years. Some agencies bridged this gap with a heavy reliance on contractors, at times with losses in accountability and failure to control costs.

1. Knowledge, Technology, and Communication Limitations.

These difficulties were compounded by very real limitations on public knowledge, technology, and communication -- a number of which still exist today. At the inception of their remedial programs in the early 1980s, agencies knew little about the extent and nature of their contamination problems or about the relative risks and priorities among sites. Cleanup technologies often were unavailable, and, in important instances, are still in early stages of development. Some agencies also had little experience in communicating effectively with local communities and other stakeholders due to their long history of secrecy at many sites. These communication difficulties contributed to further public distrust of operations at those Federal facilities and to a lack of public confidence in the Federal commitment to eventual cleanup of Federal l ands.

2. Early Responses.

Although creation of the Environmental Protection Agency (EPA) in 1970 is widely recognized as the start of the Federal environmental movement, the lack of sustained commitment, the lack of a steady funding stream for Federal facilities cleanup, the slow pace of cleanup, and the failure by Federal agencies to communicate with communities that characterized the early Federal cleanup effort, prompted strong legislative responses. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund) was amended in 1986 to include deadlines for the assessment of Federal facilities and enhanced enforcement tools by which the Environmental Protection Agency (EPA) and other regulators could compel cleanup at Fe deral agency sites. These tools included a requirement that responsible agencies enter interagency agreements (IAGs) with regulators. These enforcement tools were later supplemented by the Federal Facilities Compliance Act (FFCA), which waived the sovereign immunity of Federal agencies for environmental enforcement actions. The FFCA augmented the power of EPA and State regu lators by permitting both to seek injunctive relief, civil penalties and other sanctions against Federal agencies, as well as to criminally prosecute Federal officials.

This new leverage, under CERCLA and later FFCA, to compel cleanup contributed greatly to the development of a cleanup effort commensurate with the range and number of environmental problems for which Federal agencies are responsible. Aggressive early efforts to develop IAGs, however, meant that many cleanup commitments were negotiated without adequate information about site conditions and cleanup requirements, and before sites had been assessed, cleanup approaches and requirements selected, future land use decided, technological feasibility evaluated, or the relative priorities across different sites and facilities compared. Consequently, performance milestones set by the IAGs often proved unachievable. These milestones also assumed that funding levels would be sufficient to meet projected cleanup requirements on an ambitious schedule. The schedules did not anticipate funding constraints inherent in the budget process. Thus, the IAGs and the budget process at times established potentially conflicting sets of mandates and requirements, all of which may be enforced by Federal and State regulators with the threat of injunctive relief, civil penalties, and criminal sanctions against Federal officials.

D. Renewing the Commitment to Cleanup.

The Clinton Administration is fully committed to safeguarding human health, safety, and the environment at Federal facilities and surrounding communities, and to complying with requirements of the environmental laws. Further, the Administration acknowledges that existing problems require prompt and efficient restoration and cleanup. In order to ensure that public funds are used as efficiently as possible in meeting this obligation, the Administration must implement statutory, regulatory, administrative, and managerial changes that will speed the cleanup process -- making it faster, fairer, more efficient, and more responsive to local communities.

III. Owning Up to the Federal Responsibility.

A. Survey of Agency Challenges.

The nature and type of sites across agencies where environmental cleanup or restoration is required vary, but these sites can generally be grouped into three major categories: the nuclear weapons complex; non-nuclear industrial contamination sites resulting from Federal operations; and, land managed by Federal agencies with contamination from governmental or private activities.

The first category of sites, the nuclear weapons complex, is comprised of facilities that developed, produced, and tested nuclear weapons. These sites are owned and operated by the Department of Energy (DOE) and represent the most complex, and potentially the most expensive, remediation challenges. The sites contain radiological and mixed (radiological/chemical/ hazardous) wastes that present unique technological and practical impediments to prompt remediation and restoration.

The second category is comprised of those sites where Federal operations have generated environmental problems similar to those found in the private sector. For example, the releases of hazardous substances associated with solvents and fuels from vehicle or airport operations at DOD or National Aeronautics and Space Administration (NASA) facilities are comparable to those found at similar operations in the private sector. The industrial contamination sites in this catego ry, while the most numerous, are the sites for which knowledge about risk and remedial technology is most developed and understood.

The third category of sites are on lands administered by Federal agencies, at which either governmental or private parties have disposed of hazardous substances or are otherwise responsible for contamination. Contamination at these sites has a range of causes: from hazardous substances leaching from disposal areas to releases from mining and milling operations left by private parties on lands managed by the Department of the Interior (DOI) and the Department of Agriculture (USDA) Forest Service. Because many of these sites are geographically isolated, or have contamination attributable to non-agency activities, the identification and assessment of these sites is in th e earliest stages.

B. Building Knowledge About Relative Risk at Sites.

There has been increasing progress in developing our understanding of risk at Federal facility sites and improving the risk-assessment protocols by which cleanup decisions are made. The collective level of knowledge and experience in the use of risk assessment and analysis continues to build, and the science of risk assessment continues to evolve and be refined. Ongoing efforts within the last 18 months by the National Academy of Sciences (NAS), EPA, DOD, DOE, and an interagency working group of Federal agencies have produced new guidelines on risk assessment and priority-setting pertinent to environmental cleanup. These guidelines for assessing risk and tools for comparing risks across sites should strengthen decisionmaking and better ensure that funds are devoted first to the highest priority sites.

While the science of risk assessment has been advancing, so too has site-specific progress by each of the responsible Federal agencies. The magnitude and complexity of the problems are unquestionably greatest at DOE. DOD, with thousands of industrial type sites, and NASA, with a limited number of industrial-type facilities, are the furthest along in assessing and addressing identified problems at their sites. USDA and DOI, while making progress in many areas, are by contrast, at the early stages of identifying and responding to their problems at sites with contamination caused by private parties, such as mining operations.

C. DOD: A Relative Risk Framework and
Community Partnerships.

DOD is making significant progress in its cleanup program. However, since the inception of a dedicated funding source in 1984 by Congress, the Department has been unable to document risk reduction or meaningful progress attributable to its cleanup program. As a result, in late 1994, DOD implemented a relative risk framework in order to evaluate its progress in reducing threats to human health and the environment at its sites. Use of this framework as a management and decisionmaking tool, in combination with community outreach, promises significant program improvement.

Under the framework, sites are grouped into low, medium, or high relative risk categories. In making these judgments, DOD first considers the nature of the contaminant, the pathway (i.e., likelihood of transport of contaminants by soil, groundwater, or surface water), and the possible receptors (portions of the public or environment that may be biologically affected). The results of this analysis are presented to Restoration Advisory Boards (RABs) at DOD installations for their review and discussion.

In designing the relative risk framework, DOD incorporated early stakeholder involvement by using RABs as a mechanism for discussing the relative risk ranking of sites at installations. RABs serve as a forum for exchanging cleanup information with concerned Federal and state officials and local stakeholders. The Department's plan is to expand the number of RABs that participate in the relative risk ranking of sites at DOD installations. RAB members are able to advise and provide input that may change the final ranking of a site at an installation. The involvement of RABs in the relative risk framework has helped to open an earnest dialogue and partnering between stakeholders and the Department at the local level. As a result, DOD has had considerable success when RABs have participated in relative risk ranking of sites at its installations.

In recent years, DOD has increasingly focused its cleanup funding strategy on efforts required by schedules and milestones in agreements in order to meet the Department's overall budget targets. This funding strategy resulted in more sites being covered under agreements, since it was the only mechanism to obtain funding. However, the Department's approach did not always ensure funding was allocated to the most urgent sites. Beginning in FY 1996, DOD began the transition to a budget based on reducing relative risk while still meeting all legal agreements. In FY 1997, the Department will base its budget on reducing relative risk at sites w hile meeting schedules and milestones in legal agreements. Furthermore, the Department will work with the regulatory community to stretch cleanup schedules at sites with lower relative risk until funding becomes available.

D. DOE: Ongoing Process Improvements.

DOE is now implementing fundamental reforms in its programs and improving the performance of its environmental management and restoration activities. DOE has undertaken a major contract reform initiative to provide contractors more incentive to improve performance and contain costs. DOE has increased the number of staff devoted to contractor oversight and cost-estimation; it has made much greater efforts to identify and adopt best practices from industry and to share knowledge across sites; it has pressed for contract reforms to improve efficiency among its contractors; and it has accelerated efforts to explore innovative cost-savings measures, such as privatizing the remediation of tanks containing liquid radioactive waste by competitively contracting out on the basis of fixed unit price for treated waste. DOE has created Site-Specific Advisory Boards (SSABs) to increase local stakeholder knowledge of, and participation in, the cleanup process. Discussions with the advisory boards include the formulation of strategies based on reasonably anticipated future land use. Additionally, DOE has just complet ed its first comprehensive assessment of program costs and risks across the DOE complex, which has more closely tied priorities to risk and cost factors.

IV. Paying the Cold War Mortgage:
Remaining Challenges.

A. The Potential Funding Gap.

The Federal government is spending about $9 billion a year to address the cleanup problem, including DOE's ongoing waste management. As the table below shows, there is much work to be done. The total outstanding cost is estimated to range from $234 billion to $389 billion over the next 75 years. The range provided is broad mostly because of uncertainties in DOE's future costs. in DOE's future costs. Total cost estimates are likely to change over time as knowledge and experience improves. However, the sheer magnitude of the projected costs in relation to the annual total discretionary Federal budget (about $550 billion annually) underscores the imperative to set priorities in allocating Federal cleanup resources wisely and efficiently.

Total Estimated Cost to Complete
Cleanup by Agency (Billions of Dollars)*

Department of Energy	$200-$350
Department of Defense	$26
Department of the Interior	$4-8
U.S. Department of Agriculture	$2.5
National Aeronautics and Space Administration	$1.5-2
Total	$234 to $389

*The cost range for DOE is in FY 1995 dollars. All the other agencies are in FY 1994 dollars.

Balancing budgetary objectives is particularly constraining for DOE, in light of the obligation to meet the requirements of over 70 active compliance agreements entered into with EPA and various States. In the next five years, DOE will face the most significant challenge of any agency in being able to stay within budget targets established by the Administration. In fact, as this report shows, budget targets in the next five years will require major additional changes to the way DOE does business. The EM program plans to achieve significant progress in streamlining the DOE contractor work force, reducing indirect and overhead labor costs, and contract reform; but these may be an insufficient source of savings to stay within the prescribed resource levels.

In DOD's case, reduced appropriations for the Defense Environmental Restoration Account (DERA) during the past three fiscal years have led to renegotiations of milestones with regulators. DOE has also begun the process of reevaluating and, where necessary, renegotiating cleanup agreements to incorporate greater sensitivity to cost, risk, and technological feasibility.

B. The Need for Statutory and Regulatory Reform

Federal facility cleanups are currently governed primarily by CERCLA, the corrective action requirements of the Resource Conservation and Recovery Act (RCRA), the Atomic Energy Act (AEA), and State laws. The CERCLA process of remedy selection includes a preference for permanence and treatment in remedies and also may use applicable and relevant or appropriate requirements (ARARs) of Federal and State laws. Many of these factors generate uncertainty concerning appropriate cleanup levels and significant costs that may be unwarranted at many sites. Further complicating the process is the potential overlay of one authority on another, a s where a state asserts its RCRA authority to impose additional requirements at a CERCLA site, or where a site currently being addressed under RCRA is proposed for listing on the National Priority List (NPL) under CERCLA. The complex interweaving of requ irements needs statutory, regulatory, and administrative simplification and reform to permit more rational priority-setting according to risk, appropriate consideration of costs and benefits, and remedial action tied to anticipated future land use.

C. The Special Problems of Radioactive Waste.

Radioactive waste presents a great remediation challenge for the Federal government. Much of this waste will remain radioactive for many years -- up to tens of thousands of years. It cannot generally be neutralized, but must be contained instead. In many cases, treatment technology is not available. Because of the potential impact upon future generations, remediation plans must essentially provide for perpetual care of long-lived wastes and take into account unusual technical concerns of residual radionuclides. Even characterization of the waste has been difficult due to the health risks to workers. A lack of agreement upon the threshold levels in soil, surface or groundwater that will prevent unacceptable risks to human health, as well as related uncertainties about future land use of former weapons production sites, pose major obstacles to DOE's efforts to conduct remediation at these sites. As DOE has pointed out in its recent Baseline Environmental Management Report (BEMR), decisions regarding land use, in particular, as well as allowable residual contamination and technology advances, will dramatically affect the cost, and, given limited resources available, the timetable for remediation.

V. The Path to Reform.

This survey of the current state of the Federal facilities cleanup efforts identifies an agenda for reform in five areas, all of which are essential to enhancing the cleanup effort, improving efficiency in the deployment and use of available resources, and maintaining public acceptance and credibility. These areas are 1) statutory reform, 2) administrative and regulatory reform, 3) management reform, 4) cost-effective technology development and implementation, and 5) budget process reform.

A. Principles of Reform.

The efforts to address the many significant problems confronting Federal facility cleanup must be undertaken within a framework of principles that guide, inform, and constrain whatever reforms are needed to improve the efficiency and credibility of the cleanup effort. Extensive and productive discussion among Federal agencies, States, communities, and others have identified a number of the principles that should govern Federal facilities cleanups, and these are equally important to the reform effort. After a process of review and synthesis, the FFPG has endorsed a set of principles drawn from sets of principles drafted by either the Environmental Commissioners of States (ECOS) or the Federal Facilities Environmental Restoration Dialogue Committee (FFERDC). The topics covered include:

State role;
Federal role;
Independent State regulatory oversight;
Negotiated compliance agreements;
Efficiency;
Long-term commitments;
Equity;
Integrated planning and response;
Public participation;
Environmental justice;
Pollution prevention and pollution control activities;
Reasonably anticipated future land uses;
Cleanup contracting;
Human health risk in decisionmaking;
Systematic decisionmaking and priority setting; and
The role of studies in cleanup.

B. Statutory Reform.

In the 103rd Congress, the Clinton Administration developed a comprehensive set of reforms to CERCLA that had broad bipartisan support and hewed closely to the principles just described. The Administration's bill, H.R. 3800, attracted the support of a broad coalition of groups concerned about the Superfund program, ranging from environmental and community groups to States and industry. Despite this support, legislation reauthorizing the Superfund program was not passed. While the current Congress has not yet developed any proposals with similarly broad support, the Administration will continue to advocate responsible reforms to CERCLA and to support statutory changes that conform to the principles recited here and reflected in last year's bill.

As part of a broader National Performance Review process of "Reinventing Environmental Regulation"[i], the Administration announced in mid-March 1995 that it would convene a series of stakeholder discussions intended to develop a narrow set of targeted reforms to RCRA that would eliminate or modify requirements that generate high costs and only marginal environmental benefit. As in the case of CERCLA, any proposed reforms would apply equally to responsible parties in the public and private sector, but the reforms discussed in the stakeholder process would provide significant relief to Federal facilities.

C. Administrative and Regulatory Reform.

Soon after the 103rd Congress adjourned without enacting a Superfund reform bill, EPA announced a series of reforms to begin implementing as many of the proposals in the Administration's bill as current law permits. Where appropriate, EPA has sought corresponding reforms to RCRA. Reforms include:

linking future land use with remedy selection;
increasing consideration of cost and risk issues in remedial decisions;
streamlining standards and reducing redundancy through RCRA/CERCLA integration guidance;
increasing use of risk-based priority setting among Federal agencies;
revising milestones in IAGs to reflect priority setting; and
promoting economic development.

These reform efforts are ongoing and are assuming more importance for Federal facilities as the prospects for Superfund reform in this calendar year become increasingly uncertain.

D. Management Reform.

DOE has budgeted 20 percent in management savings to be realized through efficiency gains, in addition to the already substantial gains that have been achieved by eliminating historic inefficiencies. Further and dramatic reforms in the areas of contracting methods and management, and the internal management of the agency, are necessary. Some of these initiatives may prove useful for cleanup programs in other departments. Other management initiatives that would improve the cleanup process include: improving information systems to help managers do better strategic planning, budgeting and oversight; improving strategic planning and oversight at agency headquarters; and moving to privatize whenever cost-effective.

E. Cost-Effective Technology Development
and Implementation.

A wealth of promising research and development is being done in Federal, academic, and business circles in the area of remediation technology. Historically, however, there has been a marked lack of emphasis on bringing innovative environmental technologies into widespread use in a cost-effective manner. Over the past two years, the National Science and TechnologyCouncil (NSTC) undertook the task of defining the goals of a national environmental technology strategy, which culminated in publication of the April 1995 report, Bridge to a Sustainable Future[ii]. This study looks primarily at the national impact of innovative pollution prevention, environmental compliance, and remediation technologies; however, the greatest benefits may eventually accrue to the Federal facility cleanup effort. This would require adaptation of the national strategy to the specifics of Federal facility cleanup. Federal agencies have made significant progress toward this goal through rapid development, cross-fertilization, and eventual fast track implementation of the most promising and most needed cleanup technologies.

F. Budget Process Reform.

As Federal resources to meet all national needs become more constrained, public awareness of the important contribution made by the Federal budget process in setting priorities for Federal facilities cleanup and in governing the pace of their accomplishment has grown. Along with self-imposed mandates for continuing program improvement, national fiscal conditions are forcing agencies to prioritize their cleanup efforts within and across sites according to better evaluation of alternative future land uses, estimates of risk, evaluations of available technologies, and analyses of the relative costs and benefits of alternative approaches to cleanup. Negotiated cleanup agreements should continue to play an important role in the Federal agency cleanup program, but more flexible agreement structures are needed to help ensure that limited resources are used as wisely as possible. In order to ensure that the limited Federal resources available to protect public health and safety and the environment are used as wisely as possible, agreements should recognize the need to address the most urgent risks first, incorporate these more rigorous methods of establishing cleanup priorities, and be capable of ready adaptation to new information, budget constraints, and changing circumstances. These kinds of negotiations will obviously be difficult, but they are critical if the Nation is to come to grips with the dilemma posed by limited resources and the extraordinary costs of addressing this problem.

In addition, the Federal budget process should continue to pressure agencies to implement management reforms that will reduce costs of operations. For example, cost savings include; speeding the adoption of cost-saving technologies, using more cost-effective contracting methods, adopting best practices from other agencies and the private sector, streamlining management structures and processes, and eliminating unnecessary overhead. Systematic introduction and evaluation of performance measures in the budget process can facilitate accomplishment of this goal.

More stable funding of Federal agency cleanup programs can help ensure that cost-effective cleanup programs focused on risk reduction are implemented. When funding levels vary widely from year to year, Federal agencies cannot conduct efficient efforts that maximize the taxpayers' return on investment. Finally, if the process is to work, all stakeholders must be informed about and have meaningful opportunity for input into key decision-making processes.

VI. Conclusion.

The Federal government is making progress and improvement in environmental cleanup and restoration at Federal facilities. However, further improvement in the efficiency and effectiveness of cleanup programs is necessary, if we are to meet public expectations for adequate safeguarding of human health and the environment, and environmental cleanup of Federal facilities and Federally administered lands. Continued vigorous implementation of management reforms, development of an innovative technologies strategy, statutory, administrative and regulatory changes, as well as stabilized funding, will all be necessary if we are to accomplish this goal within constrained resources. Federal facility restoration cannot be accomplished by the Federal government working alone. Continued productive collaboration among all stakeholders is essential for long-term success.

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