The US Environmental Protection Agency (EPA) recently announced a site-specific review that has broader implications for Superfund site cleanups with radionuclide contamination. The EPA is reviewing a Trump-era decision on the applicability of water quality regulations for radionuclide-contaminated effluent from a Tennessee Superfund site. This review could result in reversing the prior determination that the Clean Water Act’s (CWA’s) technology-based effluent limits do not apply. If the EPA reverses this decision, it could signal that the EPA is looking to impose more stringent standards for the cleanup and discharge of radionuclide-contaminated water at other sites.
For background, the decision under review involves the ongoing Superfund cleanup at the Oak Ridge Reservation (ORR) in Tennessee. As part of the cleanup, the US Department of Energy (DOE) constructed a landfill for contaminated materials in 1999 and is proposing to construct another. The existing landfill is discharging radionuclide-contaminated wastewater into a small tributary of Bear Creek. The decision sought to resolve a dispute among EPA Region 4, the State of Tennessee, and the DOE centered on developing preliminary remediation goals (PRGs) for radionuclide discharges from the proposed landfill and to address the ongoing releases from the existing landfill.
Administrator Wheeler decided that NRC regulations—specifically, 10 CFR §§ 61.41 and 61.43 setting dose limits—and EPA and Tennessee water quality regulations setting a 10-5 risk level for carcinogens (including radionuclides) are both “relevant and appropriate requirements [(ARARs)] for developing PRGs” at ORR. But Administrator Wheeler overturned Region 4 and rejected the use of technology-based effluent limitations found in CWA regulations for this purpose. Central to his decision was the fact that radionuclides are regulated under the Atomic Energy Act and excluded from the definition of “pollutant” in CWA regulations. Based on this, Administrator Wheeler found that radionuclides are not subject to the CWA’s technology-based effluent standards.
Administrator Wheeler also resolved a dispute over how to evaluate the potential for exposure to radionuclides by eating fish. He agreed with the DOE that site-specific factors about fish ingestion should be used instead of default assumptions that did not account for site-specific risks associated with future land uses.
President Joseph Biden has since signed a series of executive orders (EOs), including EO 13990, which set a new environmental policy and directed all agencies to review actions taken during the prior administration. While EO 13990 identified several agency actions for review, the list was not exclusive. In May 2021, the Southern Environmental Law Center asked the EPA to review Administrator Wheeler’s decision. The EPA stated that it is “in the process of reviewing the Decision” under EO 13990, but that it is also “looking at the Decision in the context of Executive Orders 14008 and 13985,” which direct federal agencies to address both climate change and environmental justice.
While Administrator Wheeler’s decision only applied to ORR, it is still seen as setting a precedent by rejecting the use of technology-based effluent limits to develop PRGs for radionuclide-contaminated water discharges. If this portion of the decision is reversed, then it would signal that the EPA will consider technology-based limits to set more stringent cleanup standards at other sites that have radiologically contaminated water.