"Reindustrialization" is a new program of the Department of Energy (DOE) in which space and equipment at US nuclear weapons sites are leased to private companies, most of whose work has nothing to do with nuclear materials or radioactivity, to help reduce the cost of and accelerate cleanup. Reindustrialization, a form of "privatization" of DOE facilities, is currently under way at the Oak Ridge nuclear weapons site near Knoxville, Tennessee.

Some of the space that DOE is leasing is contaminated with residual radioactivity. The workers who will be using these facilities are being put at some risk of exposure, but without their informed consent or the protections that are normally given to radiation workers.

The Oak Ridge reindustrialization plan has been met with criticism from the public, labor unions and other government agencies, including the Oversight Office of Environment, Safety and Health (ESH) of the DOE itself, which noted that:

The reindustrialization program at ETTP [East Tennessee Technology Park, at Oak Ridge], including the leasing of buildings, space, and equipment, has been implemented without ensuring that health and safety requirements, accountability for performance, DOE roles and responsibilities, and liabilities are clearly defined.³

While reindustrialization may be a viable concept in principle under some circumstances, the DOE program at Oak Ridge is poor in substance and process. As has become common with many of its projects, the DOE is rushing into the program at Oak Ridge without adequate preparation. The reindustrialization program at Oak Ridge has three fundamental problems:

• The DOE is leasing contaminated buildings.
• The contaminated buildings pose risks to the health and safety of lessee workers.
• The DOE has failed to establish oversight and a regulatory framework for protecting the health and safety of lessee workers.

The problems associated with the protection of private-sector workers in Oak Ridge's reindustrialization program pose major safety and health questions. The DOE hopes to reduce clean-up costs and provide cheap space and other facilities to private companies. But it seems to be a thinly disguised way to escape from its Cold War liabilities. By proceeding in this way, the DOE is putting yet another generation of workers at risk. Instead of cleaning up the mess it made during the Cold War and protecting the public from residual hazards, the DOE is bringing the public, in the form of workers, within the perimeters of its contaminated sites and exposing them needlessly to those hazards.

Background

The leasing or transferring of DOE property formerly used in nuclear weapons production to the private sector began in the early 1990s. Examples include the cleanup, conversion and transfer of the Pinellas Plant in Florida to the county of Pinellas and the cleanup, conversion and ongoing transfer of the Mound Plant in Ohio to the city of Miamisburg, both for use as industrial office parks.

The DOE began leasing facilities at Oak Ridge to private companies in 1996. The leased facilities are within the former K-25 site (now called ETTP, or the East Tennessee Technology Park). Some of the lessees contribute to the decontamination and decommissioning of the facilities in return for use of workspace, equipment and utilities. Currently, there are approximately 40 leases among 18 private companies which employ approximately 225 people.⁴ DOE-Oak Ridge expects the net savings from current leases at the site to exceed $800 million in about 30 years.⁵

Contaminated Buildings for Lease

Under the reindustrialization plan, DOE-Oak Ridge and its leasing agent, the Community Reuse Organization of East Tennessee, are leasing contaminated facilities to private companies. Most of the companies are industrial manufacturing firms; all employ workers from the general public. Some, though not all, of the leased facilities contain residual radioactive contamination. As noted by the DOE ESH Oversight Office:

OR [DOE Oak Ridge Operations Office] has ... leased spaces within a building that have not been fully decontaminated and that still contains [sic] potential worker hazards, including radiological contamination, asbestos, and fissile materials.⁶

The spaces ... were cleaned by scraping, "chipping out," and painting sections of floors and lower portions of walls (below 8 feet) known to be contaminated.⁷

The spaces to which ESH Oversight refers are located in building K-1401, which contains residual radioactive contamination embedded in some of its concrete and steel structures.⁸ The building's 35-foot walls are decontaminated to only eight feet. The lease stipulates that the tenant must contact DOE officials to change a light bulb or do anything else above the eight-foot line since radioactive contamination could be present there. The lease restrictions also indicate that tenant is not allowed to chip the concrete floor or punch holes in the walls.⁹ The basement of K-1401, which is locked and off-limits to lessee workers, contains several hazards including fixed and removable radiological contamination, loose asbestos, contaminated groundwater, and fissile materials.¹⁰

Risks to Workers and the Public

Contamination in ETTP facilities has already led to exposure of workers to hazardous materials. It was recently reported that five current or former K-25/ETTP workers were exposed to beryllium, a toxic substance, which can lead to chronic beryllium disease, an irreversible and debilitating respiratory illness resembling emphysema.¹¹ The physicians who reported the problem stated:

We have recently become increasingly concerned that there is a potential for ongoing worker exposure to beryllium compounds at K-25/ETTP. [I]t has been documented that several buildings...have contained and/or currently contain beryllium compounds. ... Past experience has shown that these compounds spread and migrate out of areas in which they were originally contained.¹²

Worker safety at Oak Ridge leased facilities was also criticized in a January 1999 report by a team of experts from the Occupational Safety and Health Administration (OSHA), the DOE, and labor unions.¹³ Though the report did not evaluate radiological contamination in the leased facilities, it did identify several potential violations of standards -- most of them deemed "serious" -- for various hazards and issues, including electrical, machine safety, fire safety and respiratory protection (Appendix D). It revealed that some tenants had not been informed about all of the hazards present in the facilities (p.49). In addition, OSHA stated that some of the information it received about the condition and status of reindustrialized facilities was "out of date, inaccurate and/or incomplete" (p.47).

Despite criticisms about the safety of leased facilities, DOE-Oak Ridge has invited, in addition to lessee companies, other members of the general public into contaminated buildings. In June 1998, DOE and its contractors held an auction in building K-1401, a facility known to be contaminated, to sell decontaminated machinery from various buildings at the former K-25 site. More than 300 people attended, mostly buyers from machine shops from different areas of the eastern United States.¹⁴

The danger of leasing contaminated buildings is made more apparent by examining the clean-up process. In some areas, the DOE is covering up contamination by simply applying layer(s) of paint to contaminated surfaces. Its own regulations¹⁵ require signs be posted to warn of the presence of residual contamination, but Oak Ridge has not done so in at least one case.¹⁶ Another example is the continuation of decontamination work in leased facilities among lessee workers. In one building, DOE workers in radiation protection gear are "scabbling" (shaving or sanding off one or more layers of) radiologically contaminated concrete. This work is taking place in areas near lessee workers, who are not required to wear respiratory protection and are not individually monitored for radiation exposure.¹⁷ Clearly, the lessee workers are not being adequately protected.

According to Charles Lewis of DOE's ESH Office of Oversight, Oak Ridge "could consider doing more as far as radiological monitoring. They have elected not to monitor individual lessee workers, or lessee products going off site, from partially contaminated facilities, but the technical basis for these decisions have [sic] not been documented."¹⁸

The DOE's risk assessment of building K-1401 (done by Science Applications International Corporation) indicates that the leasing would result in routine exposures of workers to radiation that the workers would not have if they were working in commercial spaces. These exposures would result from alpha-emitting radionuclides like uranium and plutonium-239 (with doses from the former being predominant) as well as beta emitters and increased gamma radiation.¹⁹ Even if one presumes that the DOE dose and risk calculations have been properly done (see below), exposing workers unnecessarily violates the principle of keeping exposures as low as reasonably achievable. This precept for worker and public health protection, known as the ALARA principle, has been a part of DOE and Nuclear Regulatory Commission regulation of nuclear facilities under the Atomic Energy Act for decades.

Further, DOE's cumulative doses and risks are not conservative. Some leases are as long as 40 years, but doses are added for only 10 years.²⁰ The 40-year cumulative dose would be about 450 millirem from inhalation alone, according to DOE calculations.²¹ The DOE reports a variety of figures for risk from external radiation. For individual hot spots, the risks correspond to doses of several tens of millirem per year, corresponding to cancer risks of up to about 4 in 100,000. Yet in other documents the DOE reports a ten-year risk that is only one-tenth this amount.²²

Moreover, the inhalation dose calculations are based on 1995 conditions, and do not appear to include the effect of clean-up activities being undertaken while the building is actually occupied. The combined effect of past clean-up with the additional contamination due to continuing clean-up activities does not appear to have been estimated. Finally, the exposures to non-radioactive materials must be added to these radiation risks.

Lack of Oversight

The DOE has failed to establish clear responsibility for oversight of worker health and safety at Oak Ridge's leased sites. When asked as recently as January 1999 who was in charge of the safety of lessee workers, Dr. David Michaels, director of DOE's Office of Environment, Safety and Health, replied, "That is something we are trying to clarify right now."²³ Yet the DOE has been leasing contaminated buildings at Oak Ridge for about three years.

The US Nuclear Regulatory Commission (NRC) currently has no authority over the leased facilities; the NRC generally oversees safety of radiation work only at non-DOE nuclear enterprises, like nuclear power plants. DOE-Oak Ridge has taken the position that workers in leased space are subject to OSHA safety authority, not DOE requirements; but OSHA has not officially accepted an active oversight role.²⁴ DOE-Oak Ridge has set forth in the leases that lessees must comply with OSHA laws and regulations, and claims it has authority to punish tenant violators of health and safety regulations by terminating their lease.²⁵

Because there is currently no external oversight for lessee worker safety at the leased facilities, the provisions and restrictions in the leases have become the central means for ensuring compliance with health and safety regulations. This is a highly questionable arrangement because it is not clear if or how Oak Ridge and its leasing agent, the Community Reuse Organization of East Tennessee (whose mission is to "move the Oak Ridge Complex's resources toward private management quickly and efficiently"²⁶), would enforce OSHA compliance, especially considering the need of both entities to lease space to support cleanup and economic development. In this context, regulation of worker health and safety by DOE-Oak Ridge and/or CROET entails a clear conflict of interest.

Lack of Protective Standard for Lessee Workers

Three years after the start of leasing at Oak Ridge, the DOE is still in the process of developing a policy for reindustrialization, including a radiation protection standard for workers in the leased facilities. Neither the workers nor their representatives have been invited to participate in this process.²⁷

A key issue in the internal DOE debate is whether reindustrialization should be considered a "DOE activity." Buried therein is a crucial question: Are the lessee workers who perform non-DOE work members of the general public, DOE site workers, or some new category of worker entirely? This is a crucial distinction when determining applicable safety requirements, liabilities, DOE involvement, and training requirements.²⁸ The three DOE offices that are responsible for the program in one way or another - Worker and Community Transition, Environment Safety and Health, and Environmental Management - are still debating the issue. 28 They know it is a crucial one. For instance, according to Charles Lewis of DOE's ESH Oversight Office,

It is our interpretation of DOE requirements that if these workers are classified as members of the public, then a re-evaluation of the Safety Analysis Reports for adjacent hazardous facilities [e.g., the TSCA incinerator] is needed, as the public is no longer at the site boundary.³⁰

While the DOE debates and develops its policy for the protection of workers in leased facilities, the DOE is classifying the lessee workers at Oak Ridge as DOE general workers. In other words, the lessee workers are permitted to receive up to 5 rem per year radiation exposure (stipulated in 10 CFR 835.202(a) for the "occupational exposure to general employees resulting from DOE activities").³¹ This is 20 times higher than the EPA annual exposure limit for members of the general public from nuclear fuel cycle activities (25 millirem). Further, the standard is being applied to the lessee workers without the benefit of a rigorous radiation protection program including training, inspections, and thorough individual exposure monitoring. It appears that the DOE may be proceeding without the fully informed consent of the workers.³²

Thus the DOE, unregulated by an outside agency, is extending, through its reindustrialization program, unnecessary radiation risks to a whole new group of people without even the level of protection, training, or monitoring it requires of or affords to its own workers.

There is no reasonable basis on which to classify lessee workers as anything but members of the general public so far as the level of radiation protection is concerned. Lessee workers are not employed by DOE, nor are they doing DOE work for a DOE contractor or sub-contractor. They are not classified as radiation workers outside of DOE's purview. Were that the case, the lessees would have to obtain a Nuclear Regulatory Commission license and the workers would have to be trained and protected accordingly. The only area in which lessee workers may reasonably be distinguished from the general public is the level of training, oversight, and protection afforded to them in order to ensure that their exposures stay within the limits allowed for the general public.

At Mound, DOE facilities are being leased to the private sector, and ultimately will be transferred to the city of Miamisburg, under the Hall Amendment to the National Defense Authorization Act of 1994. The Hall amendment stipulates that the DOE must consult and obtain, before entering into a lease, concurrence from the Environmental Protection Agency (in the case of Superfund sites, which includes Oak Ridge, Mound and many other DOE sites) that the property is "clean enough" to lease out or transfer The Hall Amendment does not explicitly stipulate a level of radiation protection for lessee workers. But it implicitly leaves open the possibility of protecting workers as members of the general public and provides for greater public involvement and outside oversight of leasing activities compared to the current approach at Oak Ridge.³³

At Oak Ridge, the DOE contends that coverage by the Atomic Energy Act, passed in 1954, excludes Oak Ridge leasing activities from Hall Amendment requirements. A 1998 memorandum from its General Counsel explains DOE's legal interpretation:

[O]ur review indicates that section 161g. of the AEA provides authority to lease property that has been used, or that under the lease will be used, to carry out functions of the AEA. The Hall Amendment, in contrast, provides leasing authority relating to economic redevelopment of DOE facilities that are being closed or reconfigured.³⁴

In other words, DOE is claiming that the Hall Amendment is applied only if there is an exclusive end-state of economic development, whereas the Atomic Energy Act is applied if there is an impact to a DOE program or mission.³⁵ However, the language of the Hall Amendment sets forth no distinctions related to the purpose of leasing. So in effect, the DOE is making an artificial distinction between what it calls "economic development" at Mound and "reindustrialization" at Oak Ridge.

Since DOE-Oak Ridge has not yet provided sufficient data to the EPA for it to make a determination on the safety of the leased facilities,³⁶ EPA maintains that it is not prudent to continue leasing property at Oak Ridge to the private sector.³⁷ Community groups around Oak Ridge support this notion and have requested that, if DOE's non-compliance with the Hall Amendment continues, the EPA bring the issue to the attention of the Justice Department.³⁸ At the time this issue went to print, DOE and EPA had started a pilot project to help resolve their differences.³⁹

Conclusions

The DOE is far from ready to lease contaminated facilities. It is doing so without a clear idea of who is responsible for worker safety and health and without adequate worker health and safety protection, or even an agreement about the standard of protection to be afforded to the workers. The DOE is thereby extending to new groups of workers its lamentable Cold War record of unnecessary exposures to health risks that are poorly documented. It appears not to have learned the lessons from the huge numbers of complaints of ill-health, the unexplained problems that still plague its workers (including those of its contractors), or the loss of trust and lawsuits that its past behavior has spawned.⁴⁰

Moreover, the DOE is following its well-established sorry pattern of jumping into projects without proper preparation. In this case, it leased contaminated facilities three years ago at Oak Ridge, but still has not established clear accountability, legitimate compliance with the relevant 1994 law, or consistent and conservative rules for worker protection.

Recommendations

If the DOE decides to continue with reindustrialization, it must immediately implement measures to ensure the protection of the health and safety of the employees of lessee companies. The DOE should halt all further leasing and revisit all current leasing and reindustrialization activities while taking the following measures:

• Establish enforceable protection standards that classify lessee workers as members of the general public so far as maximum permissible exposure to radiation or other harmful substances is concerned. The applicable regulation as regards radiation exposure should be the EPA 25 millirem fuel cycle limit for the maximally exposed individual. .
• Create clear regulations and guidelines under which all parties, including DOE and the lessees, can be held accountable for worker protection. Such regulations are necessary because the DOE is, through privatization, allowing the general public in the form of non-DOE, non-radiation workers inside contaminated areas and buildings on a regular basis.
• Establish clear, continuing comprehensive external oversight of worker safety and environmental and public health protection. The process should include meaningful, early involvement of workers and the public. It should also ensure that adequate documentation of potential and actual exposures of the workers be kept so that the kinds of questions and uncertainties that have plagued workers at DOE facilities so far not be extended to lessee workers.
• Implement the Hall Amendment protocol for leasing DOE facilities, with the additional proviso that the 25 millirem dose limit to the maximally exposed individual should apply. The Hall Amendment implementation should include concurrence of EPA on DOE's leasing decisions and broad public and worker input into, and government openness about, the leasing process.

Until the DOE takes these steps, it should suspend the leases at contaminated Oak Ridge facilities and adequately compensate the lessees for damages that they would incur by having to move their operations and workers from leased facilities at Oak Ridge.

The Oak Ridge Site

In the 1940s as part of the Manhattan Project, a massive facility for the enrichment of uranium was built at Oak Ridge, Tennessee, about 20 miles northwest of Knoxville. The 5,000-acre K-25 industrial complex, named for one of its buildings, the K-25 plant (at the time the largest building in the world), used a gaseous diffusion process to produce highly enriched uranium (HEU) for use in nuclear weapons, including the Hiroshima bomb.

The process resulted in the production of a number of radioactive and hazardous wastes, among them depleted uranium, PCBs, chlorine, ammonia, nitrates, zinc and arsenic. It also resulted in the release of fluorine gas and hexavalent chromium into the atmosphere. Enrichment facilities at the Oak Ridge site were closed down in late 1987 but some of these wastes, including several hundred thousand gallons of PCBs, dozens of miles of asbestos-lined pipes, and hundreds of tons of radioactive scrap, remain in the buildings on the site.

Sources:

Arjun Makhijani, Howard Hu and Katherine Yih, ed., Nuclear Wastelands: A Global Guide to Nuclear Weapons Production and Its Health and Environmental Effects, (Cambridge, Massachusetts: MIT Press), 1995, p. 43.

The Foundation for Global Sustainability, Oak Ridge Education Project, A Citizen's Guide to Oak Ridge, Knoxville, Tennessee, May 1992, p. 20.