24 ELR 10402 -- Risk and the New Rules of Decisionmaking: The Need for a Single Risk Target

Risk and the New Rules of Decisionmaking: The Need for a Single Risk Target

Douglas J. Sarno

Mr. Sarno is president of Phoenix Environmental Corporation in Alexandria, Virginia. He serves as an advisor to the U.S. Environmental Protection Agency and Harvard University. He has also assisted the U.S. Departments of Energy and Defense, and numerous state and local governments to develop policies and guidance for hazardous waste decisionmaking.

[24 ELR 10402]

New rules are emerging to change the way the government makes decisions about cleanup of hazardous waste sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).¹ These changes have altered Superfund decisionmaking fundamentally and irrevocably, requiring the government to reach for new levels of accountability, rationality, and consistency. Central to the government's ability to meet this challenge is the way in which it makes and explains decisions about acceptable risks and required levels of cleanup.

This Dialogue briefly reviews the major developments driving the government toward goals of greater clarity and consistency in applying risk assessment concepts to the cleanup of contaminated property. It then critiques the government's current practice of establishing cleanup levels and selecting from a broad range of acceptable risks by using a confusing mix of environmental standards, site-specific risk assessment, best professional judgment, and best available technology. This Dialogue argues that the government must establish a single, nationwide risk target to apply at every site in order to foster effective public participation in cleanup decisions and rational use of future land use considerations, and to achieve a consistent level of protection, regardless of the socioeconomic or ethnic composition of affected communities. This Dialogue further argues that the government should devote more of its resources to improving risk assessment in general, as well as its application to specific sites.

The New Rules of Accountability, Rationality, and Consistency

Three issues have emerged to push the government toward goals of greater accountability, ratoinality, and consistency in the Superfund program. First, the decisionmaking role of the public has been expanded. The U.S. Environmental Protection Agency (EPA), the U.S. Department of Energy (DOE), and the U.S. Department of Defense (DOD) have all given full support to increasing citizen participation in the decisionmaking process and establishing site-specific citizen advisory boards at federal facilities.²

Second, institutional controls -- restrictions on future land use -- have become widely acknowledged as necessary tools for improving the rationality of decisionmaking. EPA, the DOE, and the DOD have all indicated that future use of contaminated sites will play a significant role in cleanup decisions.³ Effective use of land use considerations has the potential to speed up completion of remedial action while controlling costs and providing real protection to the public. This is critical in an age of smaller federal budgets and higher taxes, in which the government is under greater pressure to provide an accounting of the value of public cleanup dollars.

Third, concerns about environmental justice have moved to the forefront. A new executive order on environmental equity requires federal agencies to address potential, "disproportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority populations and low-income populations."⁴ Government agencies are under increasing pressure to demonstrate consistency in their willingness and ability to protect all communities.

These changes make continuation of current Superfund decisionmaking processes untenable.

Background

The hazardous waste cleanup situation today is a far cry from what Congress envisioned when it enacted CERCLA in 1980. At that time, cleaning up contaminated sites -- at least abandoned sites -- was viewed as a manageable five-year program to address a few hundred of the worst sites in the country. Given that perspective, it is no surprise that little thought was given to long-term economic and social issues, or building the scientific, technical, and policy infrastructure required to support the program for years to come. Even the critical question of "how clean is clean?" could be dismissed with the rationalization that risks at the [24 ELR 10403] relatively few sites at issue could be efficiently minimized through site-by-site decisionmaking.

As it became apparent that the Superfund program would need to address many more sites than originally anticipated, EPA developed its decisionmaking frame-work, set forth in the National Oil and Hazardous Substances Pollution Contingency Plan (NCP),⁵ to provide decisionmakers with a great deal of discretion in managing site risks. This flexibility, however, has resulted in a lack of clear goals, an ineffective process for incorporating input from the public and potentially responsible parties, and an inability to provide coherent explanations of how decisions were reached.

The Superfund Amendments and Reauthorization Act of 1986⁶ offered little relief by presenting a hodgepodge of standards under the umbrella of applicable or relevant and appropriate requirements (ARARs).⁷ ARARs do not provide a comprehensive framework for making the difficult and very specific decisions required at sites.⁸ Instead, risk assessment procedures are used to fill gaps in the ARARs scheme and to meet the NCP's requirement that selected remedial action protect the public and environment.⁹

Risk analysis is used to perform two important functions under the Superfund program: Baseline risk assessment and risk management.¹⁰ Baseline risk assessment is the quantitative calculation of the danger to an individual from exposure to hazardous chemicals at a given site, based on the individual's use of the site for a specified purpose and assuming that no cleanup is conducted.¹¹ For carcinogenic chemicals, this figure is generally expressed in terms of the increased chance of contracting cancer over a lifetime for the most exposed individual in a residential setting, where groundwater is the source of drinking water and children play in and ingest the soil.¹² It is this calculation that drives the threshold decision of whether or not to take action at the site.¹³ Given these "day care center" exposure assumptions, the calculated risk generally is high -- even for relatively small amounts of contamination. Thus, cleanup action often is recommended.

Once a decision is made to take action, however, the baseline risk assessment essentially becomes irrelevant to the process. Waste at sites is often treated to levels based on technological limits that fall short of providing protection under the residential use assumption that initially drove the decision to perform a cleanup. Instead, risk assessments conducted in the context of management provide input to decisionmakers selecting target cleanup levels and the means to achieve them.

Under the assumption that there is no threshold below which exposure to carcinogenic chemicals can ever be "safe," NCP provisions governing risk assessment set forth a range of risks that EPA deems acceptable.¹⁴ EPA's current risk range for carcinogens -- between a one-in-ten thousand (1 X 10 [-4]) and one-in-one million (1 X 10 [-6]) excess risk of cancer from lifetime exposure¹⁵ -- provides decisionmakers with wide latitude in setting cleanup goals. In addition to risk assessment results, decisionmakers balance diverse and often competing factors to select cleanup options for each site.¹⁶ Indeed, cleanup decisions often are based primarily on a selected technology, and then validated by risk analysis that shows risks falling somewhere within EPA's wide range of acceptable risks.

Under this largely technology-based approach to decisionmaking, decisions about future land use are rarely worked out in detail and, in fact, are often implicit. For example, a standard capping option restricts any use of a site in order to maintain the integrity of the cap. In EPA's records of decision, however, the future use of a site is rarely evident. Thus, because it is not usually designed to accommodate a specific land use goal, the cap -- or other technology -- may impose fewer or more limits on the use of the property than are needed to meet risk reduction goals.

Moreover, any remedy that incorporates access or use restrictions to protect public health and the environment must also rely on institutional controls to ensure that the restrictions are maintained.¹⁷ In many cases, it is the physical barrier associated with a technology that provides most of the actual protection against harm from these sites. Yet in most records of decision, reference to institutional controls consists of little more than the statement "and institutional controls." Without placing future land use considerations and institutional controls at the forefront of decisionmaking, decisions cannot fully account for the benefits of cleanup or characterize the residual risks. The inevitable result is lack of public understanding and acceptance of site cleanup decisions.

[24 ELR 10404]

The Need for Change

Increased Public Participation

Citizens generally are not interested in bureaucratically controlled, "black box" solutions; they want transparency -- access to the decisionmaking process and its substantive results. Too often, however, EPA's decisions create the perception of a hidden agenda. Lack of public involvement in the early stages and poor communication of cleanup objectives tend to produce public expectations far in excess of what reasonably can be achieved at many sites. By the time a proposed plan is issued by EPA, the public often feels co-opted or ignored by the process.

The dramatic increase in opportunities for public participation and the development of site-specific advisory boards will bring about a significant rise in public interest and input into risk-related issues. Integrating this development into the Superfund decisionmaking process demands a change to the current approach to assessing and managing risk. The government must develop a comprehensive system for effectively communicating a site's risks before, during, and after remediation. In particular, public participation in decisions about future uses of contaminated sites require full accounting and explicit understanding of how residual risk levels will be achieved and maintained over the long term.

Future Land Use Considerations

The duration of potential exposures associated with some uses of property, e.g., eight-hour work days at industrial sites, is shorter than those associated with others, e.g., potentially 24-hour per day exposures at residential properties. By restricting future land uses, therefore, it is possible to achieve a given level of overall protection with less stringent cleanup standards (in terms of the concentration of chemicals remaining in contaminated media) than are necessary for residential uses. In other words, risk goals can be attained by controlling durations of exposure, in addition to controlling the dose of each exposure.¹⁸

Allowing such consideration of future land uses by Superfund decisionmakers improves the rationality of cleanup decisions by fostering an understanding of the costs and benefits of different levels of remediation. If contaminated property is most useful for industrial purposes, and the cost of achieving an industrial cleanup is far less than for a residential cleanup, then cleanup for industrial use will almost certainly be preferable. Before such a determination can be made, however, one must compare industrial and residential cleanups. To evaluate alternative scenarios for future use of contaminated properties, a set of exposure assumptions applicable to each use must be developed. These exposure assumptions constitute the cornerstone of cleanup expectations for the site. Based on exposure assumptions, cleanup levels, cost estimates, and institutional and physical control requirements for each proposed use can be developed. Clear communication of this information can foster meaningful public participation in the decisionmaking process.

It is critical to the process of considering and selecting institutional controls that the same allowable risk be used for each potential use under consideration. It is impossible for the public or other participants in the process to rationally compare the desirability of alternative land use and exposure scenarios if risk is treated as a moving target. The true cost differentials among competing future use options can be truly measured only by comparing varying costs and cleanup levels against a backdrop of identical risk to on-site residents or workers.

In contrast, when the risk goal varies along a wide "acceptable risk range," rigorous comparison of cleanup options becomes impossible. Moreover, attempts to determine, site-by-site, the acceptable degree of risk to the public swamp the decisionmaking process with contentious debate about the value of human life. Regardless of the debate's outcome, citizens are likely to be alienated by the notion that their lives are somehow tradeoffs in balancing budget shortfalls against the need for cleanup, or worse, bargaining chips in deals negotiated with potentially responsible parties. Leaving the question of acceptable risk open to endless, site-specific debates has prevented a workable answer to "how clean is clean?" on a national level, and has led to the ambiguous cleanup approach used today.

Environmental Equity

Perhaps the most dramatic impact on decisionmaking for environmental cleanups will stem from the increased focus on environmental justice. Environmental justice demands fair and equal treatment of citizens exposed to risk from contaminated sites, regardless of race or socioeconomic status. Remediation solutions nationwide will be scrutinized more closely for their impacts on communities and consistency with similar decisions.

Although site-specific decisions about appropriate future uses of contaminated property will properly be made at the local level -- and will often be supportable if reached with adequate public input -- decisions concerning the allowable level of risk cannot be justified as site-specific. It is impossible for decisionmakers to provide coherent justifications for a process that assigns lives different values from location to location. Indeed, EPA's current acceptable range of risk is enormous. It is commensurate to comparing the population of El Campo, Texas, to that of Dallas, Texas. Informed citizens are not likely to accept the Superfund program's endorsement of a one-in-ten thousand (1 X 10 <-4>) acceptable level of risk on property to which they are exposed, while the same program provides for protection to one-in-one million (1 X 10 <-6>) levels of risk in other communities. Thus, furnishing equivalent levels of protection from a risk standpoint will be an important and unavoidable result of this issue.

Next Steps

Developing a Single Risk Target

The determination of the acceptable level of risk to be achieved in the cleanup of our country's hazardous waste sites is a policy decision that must be made at the national level. This determination must not be made arbitrarily by a site manager, or worse, negotiated at each site. A national risk target may not once and for all answer "how clean is clean?," but it will provide a needed component for moving toward a system of quality, site-specific decisions. Combined with comprehensive risk assessment procedures, a public participation process that effectively determines desirable future uses at contaminated sites, and the movement toward environmental equity, a national risk level will enable the government to establish clear remediation goals for each site.

Undoubtedly, there will always be cases in which the national risk target legitimately does not -- or cannot -- apply.¹⁹ Identifying such exceptions is an area in which the public can play an instrumental role. Rather than continuing the current approach, which treats practically every site as an exception, a single risk target will provide a starting point from which to evaluate justifiable exceptions in a public forum.

Improving Risk Assessment Procedures

Although some efforts to create a body of standards specific to hazardous waste remediation are underway,²⁰ it will be years -- perhaps even decades -- before a widely accepted set of standards is available. Even then, it is unlikely that these numbers will take into account all of the chemicals of concern at sites across the country or consider the various synergistic and antagonistic effects of chemical mixtures. In the meantime -- perhaps even in the long term -- the best tool to make sound cleanup decisions and establish safe cleanup levels is site-specific risk assessment. It is imperative, therefore, that the overall understanding and acceptance of risk assessment procedures be improved. In particular, there must be a serious and focused effort to improve the fundamental building blocks of information that underpin risk assessments.

While various federal cleanup programs have invested large sums of money in exploring innovative technologies for remediation,²¹ similar investments have not been made to improve the science that underlies our ability to make decisions at these sites. The number of sites requiring remediation and the number of cleanup decisions made every year demand that the very latest data be used in assessing potential harm to human health and the environment. Congress, EPA, and other agencies should launch a serious effort -- backed by adequate financial support -- to improve understandings of chemical toxicity, the movement of chemicals through various soil and water environments, and the behavior of chemical mixtures.

In addition, a focused effort is needed to improve the data underpinning exposure assumptions. Inadequate exposure assessment is the most fertile ground in the Superfund program for underrating a site's potential harm or establishing unnecessary cleanup requirements. Under- or over estimating human exposure levels can dramatically change the cleanup requirements for a site. Scientists and stake holders need to work together to develop site-specific assumptions that take into account all relevant site conditions.

Conclusion

The Superfund program's focus on technological solutions has contributed to the program's lack of success in cleaning up sites and returning them to productive use. The problem is of a magnitude that warrants a major investment in making cleanup programs more effective. For better or worse, hazardous waste remediation is a problem that will be with us for generations; it involves situations, chemicals, and environments ubiquitous in the industrial age. Only during the 14 years of the Superfund program has the government begun to address these problems in earnest. Society has a long way to go in developing the political, scientific, and technological systems to provide final solutions to hazardous waste problems.

The current focus on Superfund reform provides us with an opportunity -- as well as a challenge -- to merge the interests and knowledge of scientists and citizens in crafting a credible societal response. Moreover, reauthorization of Superfund presents Congress with a significant opportunity to set the stage for better application of risk analysis in site-remediation decisions. We need to equip decisionmakers and stakeholders with appropriate tools -- including a single, nationwide risk target -- so that we can finally get past decisionmaking, and on to the cleanup and reuse of contaminated sites.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

2. See Interim Report of the Federal Facilities Environmental Restoration Dialogue Committee: Recommendations for Improving the Federal Facilities Environmental Restoration Decision-Making and Priority-Setting Processes 20-32 (Feb. 1993).

3. See UNITED STATES All FORCE ENVIRONMENTAL RESTORATION PROGRAM, FUTURE USE CONSIDERATIONS IN THE CLEANUP OF AIR FORCE INSTALLATIONS (Oct. 1992); U.S. DOE, OFFICE OF ENVIONMENTAL MANAGEMENT, OFFICE OF FIELD MANAGEMENT, FINAL DRAFT, FORGING THE MISSING LINK: A RESOURCE DOCUMENT FOR IDENTIFYING FUTURE USE OPTIONS (Dec. 1993). In its proposal for legislation to revise remedy selection under Title V of CERCLA, EPA has included directives for evaluating "the reasonably anticipated future uses of land at a facility." EPA Proposed Legislative Language on Reform of CERCLA Remedy Selection (Apr. 25, 1994), in DAILY ENV'T REP. (BNA) Apr. 28, 1994, at E-4, 6-7 (text of proposed § 503(b)(2), amending 42 U.S.C. § 9621(b), ELR STAT. CERCLA § 121(b)).

4. Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12898, 59 Fed. Reg. 7629 (Feb. 16, 1994), ELR ADMIN. MATERIALS 45075.

5. The national contingency plan (NCP) is codified at 40 C.F.R. pt. 300. EPA last revised the NCP effective April 9, 1990.55 Fed. Reg. 8666 (Mar. 8, 1990).

6. Pub. L. No. 99-499, 100 Stat. 1613 (1986).

7. See 42 U.S.C. § 9621(d), ELR STAT. CERCLA § 121(d). The concept of ARARs was first introduced by EPA in its 1985 revisions to the NCP. See 50 Fed. Reg. 47912, 47975 (Nov. 20, 1985) (superseded).

8. By borrowing existing standards under other environmental and health-related laws, ARARs were supposed to clarify the selection of cleanup levels at Superfund sites. Because most existing standards focus on end-of-the-pipe or human ingestion situations, few are directly applicable to long-term restoration of contaminated soil and groundwater. Consequently, ARARs have proven to be little more than a costly delay in determining "how clean is clean" for the sites at which they have been applied. To fill the void, EPA has tried to strengthen the use of site-specific risk assessment through guidance. See e.g., RISK ASSESSMENT GUIDANCE FOR SUPERFUND: HUMAN HEALTH EVALUATION MANUAL, PART A, INTERIM FINAL, EPA/540/1-89/002 (Dec. 1989). EPA also encourages the use of presumptive remedies in frequently encountered situations. See e.g., EPA OFFICE OF EMERGENCY REMEDIAL RESPONSE, SUPERFUND PRESUMPTIVE REMEDIES IN POLICY AND PROCEDURES (Sept. 1993).

9. 40 C.F.R. § 300.430(f)(i)(A) & (f)(1)(ii)(A)-(C) (1993). See also NCP, 55 Fed. Reg. at 8701 (preamble) ("it is now clear that ARARs do not by themselves necessarily define protectiveness").

10. See 40 C.F.R. § 300.430(d)(4) (1993) (baseline risk assessment);id. § 300.430(e)(9)(iii)(A) (1993) (assessment of alternatives to determine whether they can adequately protect human health).

11. See 55 Fed. Reg. at 8709-11.

12. Id. at 8715-18.

13. Although there is no automatic risk threshold above which action must be taken, sites with risks exceeding one-in-ten thousand (1 X 10 [-4]) will almost always require remediation.

14. 40 C.F.R. § 300.430(e)(2)(i).

15. Id.

16. Id. § 300.430(f).

17. See David F. Coursen, Institutional Controls at Superfund Sites, 23 ELR 10279 (May 1993).

18. See id.

19. For example, the risks to cleanup workers or destruction of natural or cultural resources associated with meeting a particular long-term risk goal may, under some circumstances, outweigh the advantages of attaining that goal.

20. For example, EPA recently released a draft notice of proposed rulemaking that would set cleanup standards for federal facilities contaminated with radioactive material. The "preliminary staff working draft" would limit doses to an amount corresponding to a 1-in 3,333 (1 X 10<-4>) lifetime excess cancer risk for the "reasonably maximally exposed individual" over a 30-year exposure (unpublished document on file with the Environmental Law Institute, ELR Order No. AD-206).

21. Large budget programs include EPA's Superfund Innovative Technology (SITE) program, the EPA Office of Technology Innovation, the U.S. Department of Energy EM-50, the Office of Technology Development, and the Joint Federal/Western States Environmental Restoration and Waste Management Technologies Demonstration Project.