ACHRE Report

Part II

Chapter 11


What We Now Know

Policies and Principles Governing Secret Intentional Releases: The Effectiveness of Current Regulations


Chapter 11: Policies and Principles Governing Secret Intentional Releases: The Effectiveness of Current Regulations

When the federal government set out to apply atomic energy to national needs, there were no specific rules or policies to govern the deliberate release of radionuclides into the environment. Nonetheless, the declassified record of the releases just reviewed shows that those responsible considered the basic issues that concern us today and that are today the subject of federal regulation. These include the need to limit risks, the question of who should bear those risks, and the extent of the obligation to inform affected citizens.

This record indicates that, for intentional releases as for biomedical experimentation, the government was most concerned with, and placed the highest priority on, limiting human health risks. At Hanford, for example, this was done by establishing limits for the permitted level of radioactive contamination. Some of these guidelines were exceeded, if only temporarily, by the Green Run. For the radiological warfare program, the Department of Defense established a panel of outside experts to safeguard against excessive risks to the general public.

The federal government struggled throughout these early years to clarify its obligations to protect the general public from the risks of radioactive contamination in the environment, particularly from atmospheric nuclear weapons testing (see chapter 10). The 1953 Nevada test series raised serious concerns about whether and how radioactive fallout from the expanding testing program was exposing nearby people and livestock to risk.[161] In an analysis that seems equally apt for intentional releases, Richard Elliott, information director of the AEC's Santa Fe Operations Office, argued at the time that the AEC had the obligation to show that the testing program was "vital to the nation and that it was conducted as safely as possible." He also asserted, however, that the agency had duties in addition to limiting risk, including

(1) To inform concerned publics of the hazards created and of preventive action which may be undertaken; (2) To warn people in advance of potentially hazardous situations, or of situations which may alarm them; (3) To report after the fact not only with reassurances but also with details and interpretations; (4) And, to the extent of the agency's responsibility, to reimburse the public for its losses.[162]

For most of the intentional releases described in this chapter, information was withheld entirely, even when that information might have enabled the public to reduce its risk, however small, of exposure to ionizing radiation.[163] This secrecy appears to have been motivated by legitimate national security needs in the cases of the Green Run and the RaLa program. The radiological warfare field-testing program was kept secret primarily to avoid public awareness and controversy that might jeopardize the program. The extent of secrecy abated in later years, and many of the intentional releases that occurred from about 1960 onward involved relatively low risks and were made known to the public.

Obligations to limit risk, to consider who should bear the risk, and to inform the public, while recognized, were often subordinated to concerns for national security, which were sometimes joined or melded with concerns for public relations. The information that is available indicates that the physical harm from the radiation is probably less than the damage--to individuals, communities, and the government--caused by the initial secrecy, however well motivated, and by subsequent failures to deal honestly with the public thereafter. The legacy of distrust, as described in the histories presented above, is probably more significant than the legacy of physical harm.

Regulating the Levels of Risk the Government May Impose

The past fifty years has seen the development of a body of laws and regulations governing releases into the environment, including releases of radioactive materials. These laws and regulations give legal standing to moral considerations about limiting risk, fairness in the imposition of risk, and disclosure to and involvement of the public. When environmental releases take place today--for example, in the cleanup of the nuclear weapons complex--they are subject to rules that provide procedures for public review and comment on proposed federal actions and to rules that limit the amounts of radiation that can be released into the environment.

Environmental law contains a variety of quantitative standards designed to limit the risk to human health from exposure to environmental hazards. These limits apply both to private companies and to the federal government.

The Atomic Energy Act of 1954 and the Clean Air Act of 1970 impose the most important constraints on intentional releases of radioactivity into the environment.[164] Regulations under both of these laws limit the maximum exposure to any one person. These limits are often supplemented by secondary standards (for example, on concentrations in air and water) designed to prevent exposures from exceeding this limit. This basic form of regulation remains largely unchanged from the early days of radiation protection, although the quantitative limits have been greatly reduced over the years.[165]

The actual limits on radiation exposures to members of the public have dropped dramatically over time. The initial postwar standard was for occupational exposures: 0.1 R per day.[166] If a person were exposed at such levels for his or her entire working lifetime, about fifty years, a rough extrapolation of current risk models would predict that he or she would be more likely than not to die of radiation-induced cancer. In practice, however, it is extremely unlikely that any worker came close to that level of lifetime exposure. Once it was recognized that standards for the general public should be stricter than those for a potentially hazardous workplace, the exposure standard for members of the public was set a factor of ten below the occupational standard. In 1960, when the occupational standard was reduced to 5 rem per year, the standard for exposures to members of the general public was reduced to 500 mrem per year from all artificial environmental sources.[167]

Since that time, the Environmental Protection Agency and the Nuclear Regulatory Commission (NRC) were established as separate regulatory agencies,[168] and radiation protection standards have been tightened further. The DOE and NRC have adopted the stricter limit of 100 mrem per year for general population exposure, and the EPA has proposed adopting a similar standard. The EPA's standard for atmospheric emissions under the Clean Air Act is a factor of ten lower: 10 mrem per year. A lifetime of exposure at this level would produce an expected excess in cancer deaths of a few in 10,000.[169]

By way of comparison, the average human exposure to background radiation from naturally occurring cosmic rays and radioactive materials is roughly 300 mrem per year. Exposure limits that were initially much higher than natural backgrounds have since fallen substantially below those levels. Actual public exposures are much lower still, with average medical exposures of roughly 50 mrem per year and exposures from nuclear power at roughly 1 mrem per year for people living closest to nuclear power plants.[170] Although the risk associated with the maximum-allowed exposure from human-controlled sources has fallen over the years, so that it is now below that from natural background levels, it remains higher than that for exposure to chemical carcinogens, which range from 1 in 10,000 to 1 in 1,000,000.[171]

However, standards based solely on limiting individual exposures would not address the possibility that--as in the case of intentional releases--large numbers of people might be exposed to risk, though likely at low levels. As described above, the population dose, obtained by adding up all the individual doses, provides a measure of the overall risk to a large exposed population. A more universal application of the population dose in the regulatory process would give greater weight to this overall risk.[172]

Under some circumstances, however, the federal government may invoke exceptions to these baseline standards--imposing greater risks on its citizens where national need dictates. Under the Clean Air Act, only the President may invoke such exceptions, and only on the basis of "national security interest." The President must report to Congress on any such exceptions at the end of the calendar year.[173] Under the Atomic Energy Act, however, the Department of Energy is largely exempt from external regulation. When its predecessor, the Atomic Energy Commission, developed regulations for the civilian nuclear power industry, it also committed to operate its own nuclear facilities according to certain safety provisions, but allowed itself an exemption "when over-riding national security considerations dictate."[174] Such an exception under the Atomic Energy Act could still be invoked today. These exemptions clearly allow national security interests to take precedence over public health concerns. The Advisory Committee is concerned that this could occur without adequate consideration or oversight, and without adequate protection of the public's interest in a safe environment and public notice. Once the exemption is invoked, there is no formal limit on the risks to which members of the public may be exposed, although the requirement to report to Congress could deter some actions.[175]

Public Disclosure and Formal Review

Today's environmental laws require public disclosures of the likely environmental impacts of federal government actions, subject to public and EPA review, and EPA oversight of federal compliance with environmental regulations. As we will discuss below, the classification of information for national security purposes requires certain exceptions to the general rules described here.

The National Environmental Policy Act (NEPA) of 1969 requires that the federal government take into account and publicize the environmental impact of its actions.[176] NEPA's requirements serve the dual purposes of informing the public and forcing agencies of the federal government to inform themselves of the environmental impact of their actions. NEPA requires an agency to prepare an environmental impact statement (EIS) for any proposed "major federal action" having a significant impact on the human environment.[177]

As long as an agency has followed the requisite procedures (and rationally explained its choices in the EIS) it may choose whatever course of action it likes, even the alternative that poses greater environmental risks. Nonetheless, the public process can have dramatic effects on the way agencies make decisions. Assessments that are subject to public comment and decisions that are open to public scrutiny force agencies to consider public reaction when they choose policy alternatives. The adequacy of the process is subject to review by EPA and, if members of the public sue, by the courts. However, environmental impact statement may be classified in whole or in part. The EPA is obliged to review and comment on the classified portions.[178]

The EPA is also charged with making sure the federal government complies with the substantive requirements of the Clean Air Act (and other environmental statutes), and shares oversight responsibilities under the Atomic Energy Act with DOE and the NRC. For example, EPA must approve the construction or expansion of a facility, certifying that such action would not exceed the limits of the Clean Air Act. Furthermore, agencies are required to report on their emissions to EPA and are subject to fines if they violate the emissions limits. Under the Federal Facility Compliance Act, EPA must list and review environmental compliance at all federal facilities.

Selection of Sites and Affected Communities

The sites selected for intentional releases, and thus the populations affected, do not appear to have been chosen arbitrarily, but rather for reasons that are arguably defensible, albeit open to a charge of unfairness. Most of the releases took place in and around "atomic energy communities" and military sites, a choice that had several obvious advantages. First, the sites offered the expertise and facilities, both indoors and out, for the evaluation of releases involving radioactivity. Second, the locations of most of these facilities were originally chosen because of their relative, if not complete, isolation from major "civilian" population centers. Residents near these sites were generally accustomed to secret government activities in their midst. The selection of these sites for repeated exposure to releases of radioactivity--whether experimental, accidental, or routine--probably resulted in fewer people being exposed, but it also meant that the same groups were repeatedly exposed to higher than normal risks.

While there is no formal analogue to the research rules regarding fairness in the selection of subjects in the context of environmental releases, the environmental impact process does provide for public review of, and comment on, the rationale for the choice of taking an action in one locale, as opposed to another. In addition, by a 1994 executive order, President Clinton called on decision makers to consider whether actions affecting the environment may have disproportionate impact on the environment of poor or minority populations.[179] When the environmental review and decisions are made in secret, however, opportunities for any group of citizens to make their concerns known are limited.

The Effects of Secrecy on Current Policies and Protections

As we have seen, current law permits the conduct of intentional releases in secret. Secret intentional releases pose two kinds of problems for the interests of the public--loss of assurance that secret releases comply with laws regulating risk exposure and loss of the protections afforded by public disclosure and comment.

Formally, at least, the regulations limiting radiation exposures to the public and requiring official environmental review and oversight of government programs apply equally to classified programs as to public ones. In practice, however, classification creates complications that have yet to be resolved. Efforts are now under way to put procedures into place to better address proper environmental compliance in classified programs.

For example, security classification can interfere with official oversight of environmental compliance. Even in recent times, environmental oversight of classified programs has not been the rule in practice. Until 1994, the Federal Facilities Enforcement Office at EPA, which is charged with environmental oversight of all federal facilities, had no personnel with suitable clearances to oversee "black" programs--programs so highly classified that their existence is not acknowledged.[180]

Lack of oversight creates opportunities for violations of environmental law to go undetected and unpunished. Some have charged that the Department of Defense, as recently as 1993, used secrecy as a cover for violations of environmental law. Recent lawsuits against the Department of Defense and the Environmental Protection Agency allege that (1) illegal open-air burning of toxic wastes took place at a secret Air Force facility near Groom Lake, Nevada, and that (2) EPA has not exercised its required environmental oversight responsibilities for this facility.[181] Responding to the second of these lawsuits, EPA reported that in early 1995 it had seven regulators on staff with Special Access clearance who inspected the Groom Lake facility.[182]

The Committee believes that the federal government has a particular obligation to provide environmental oversight of classified programs and that there is no fundamental barrier to environmental oversight in classified programs. Regulators can be granted the appropriate clearances. For example, before its existence was openly recognized, the F-117 Stealth fighter base in Nevada was subject to oversight by Nevada state regulators who had received the necessary clearances.[183] Such oversight is not automatic; it requires active cooperation between the regulatory agencies and the agencies subject to regulation. The Department of Defense has undertaken a review of environmental compliance in its "black" programs and is working with EPA to establish mechanisms to provide continuing environmental oversight of those programs.[184]

Even when regulators have the appropriate clearances, however, other aspects of secrecy can create barriers to oversight. Providing clearances often entails lengthy background investigations, which can result in delays. Furthermore, it remains unclear what EPA can do if it detects a violation that results in a dispute with the agency in charge of the program. This is a basis for concern about the credibility of environmental oversight that occurs in secret.

The limits on outside oversight are ameliorated by the fact that both DOE and DOD have established environmental and health offices that are largely independent of their respective agencies' operational programs. Under most circumstances these offices can probably provide adequate oversight over their agencies' classified programs. Because of the potential institutional conflict of interest, however, it would be preferable to have further oversight by an independent entity.

The conduct of intentional releases in secret necessarily deprives the public of information to which it would otherwise be entitled. Security classification modifies or eliminates the various requirements for providing public disclosures. The agency states that its normal practice is to send an EPA employee with appropriate clearances to the agency in question to review the classified information; EPA, however, does not keep copies of the reviewed document or any other records of such reviews.[185] Moreover, review by an EPA employee is no substitute for a process open to public comment and scrutiny.

Secrecy, especially to the degree of "black" programs, severely limits or eliminates the ability of the public to influence decisions about environmental health, either through political action or through the courts,[186] and undermines public confidence that officials are carrying out their responsibilities to safeguard public health. As in the secret releases of the past, there are also concerns about whether and what kind of information can be given to the public about environmental and public health effects when releases are classified and if restrictions on information compromise the ability of members of the public to take protective actions.

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