[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
A REVIEW OF DOE'S ACCELERATED CLEANUP PROGRAM AND STATE-BASED
COMPLIANCE AGREEMENTS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
JULY 19, 2002
__________
Serial No. 107-124
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
__________
U.S. GOVERNMENT PRINTING OFFICE
81-492 WASHINGTON : 2002
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON ENERGY AND COMMERCE
W.J. ``BILLY'' TAUZIN, Louisiana, Chairman
MICHAEL BILIRAKIS, Florida JOHN D. DINGELL, Michigan
JOE BARTON, Texas HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia SHERROD BROWN, Ohio
RICHARD BURR, North Carolina BART GORDON, Tennessee
ED WHITFIELD, Kentucky PETER DEUTSCH, Florida
GREG GANSKE, Iowa BOBBY L. RUSH, Illinois
CHARLIE NORWOOD, Georgia ANNA G. ESHOO, California
BARBARA CUBIN, Wyoming BART STUPAK, Michigan
JOHN SHIMKUS, Illinois ELIOT L. ENGEL, New York
HEATHER WILSON, New Mexico TOM SAWYER, Ohio
JOHN B. SHADEGG, Arizona ALBERT R. WYNN, Maryland
CHARLES ``CHIP'' PICKERING, GENE GREEN, Texas
Mississippi KAREN McCARTHY, Missouri
VITO FOSSELLA, New York TED STRICKLAND, Ohio
ROY BLUNT, Missouri DIANA DeGETTE, Colorado
TOM DAVIS, Virginia THOMAS M. BARRETT, Wisconsin
ED BRYANT, Tennessee BILL LUTHER, Minnesota
ROBERT L. EHRLICH, Jr., Maryland LOIS CAPPS, California
STEVE BUYER, Indiana MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California CHRISTOPHER JOHN, Louisiana
CHARLES F. BASS, New Hampshire JANE HARMAN, California
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska
ERNIE FLETCHER, Kentucky
David V. Marventano, Staff Director
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Oversight and Investigations
JAMES C. GREENWOOD, Pennsylvania, Chairman
MICHAEL BILIRAKIS, Florida PETER DEUTSCH, Florida
CLIFF STEARNS, Florida BART STUPAK, Michigan
PAUL E. GILLMOR, Ohio TED STRICKLAND, Ohio
RICHARD BURR, North Carolina DIANA DeGETTE, Colorado
ED WHITFIELD, Kentucky CHRISTOPHER JOHN, Louisiana
Vice Chairman BOBBY L. RUSH, Illinois
CHARLES F. BASS, New Hampshire JOHN D. DINGELL, Michigan,
ERNIE FLETCHER, Kentucky (Ex Officio)
W.J. ``BILLY'' TAUZIN, Louisiana
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Jones, Gary, Director, Natural Resources and Environmental
Issues, General Accounting Office.......................... 8
Owsley, John A., Director, Department of Energy Oversight
Division, Tennessee Department of Energy and Conservation.. 59
Roberson, Hon. Jessie H., Assistant Secretary for
Environmental Management, Department of Energy............. 4
Trever, Kathleen E., Coordinator/Manager, Ineel Oversight
Program, State of Idaho.................................... 55
Wilson, Michael, Program Manager, Nuclear and Mixed Waste
Program, Washington State Department of Ecology............ 51
(iii)
A REVIEW OF DOE'S ACCELERATED CLEANUP PROGRAM AND STATE-BASED
COMPLIANCE AGREEMENTS
----------
FRIDAY, JULY 19, 2002
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Oversight and Investigations,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:30 a.m., in
room 2123, Rayburn House Office Building, James C. Greenwood
(chairman) presiding.
Members present: Representatives Greenwood, Gillmor,
Whitfield, Deutsch, and Strickland.
Staff present: Dwight Cates, majority professional staff;
Peter Kielty, legislative clerk; and Edith Holleman, minority
counsel.
Mr. Greenwood. The subcommittee will come to order. I
welcome our witnesses and our guests this morning. The Chair
recognizes himself for 5 minutes for making an opening
statement.
Today, we will review the Department of Energy's new
Accelerated Cleanup Reform Initiative and the impact this
initiative will have on existing compliance agreements with the
States.
DOE's Office of Environmental Management has been the
subject of extensive oversight by this subcommittee over the
past 8 years. Several Oversight and Investigations Subcommittee
hearings in earlier Congresses exposed many failures, including
the Pit 9 fixed price contract disaster at the Idaho site,
extensive mismanagement of the Office of Science and
Technology, the failed privatization effort at the Hanford Tank
Farms, and a catalog of contract reform initiatives that went
nowhere.
The subcommittee continues its focus on the EM program for
two reasons. First, we want to ensure DOE cleans up the nuclear
waste legacy to eliminate the risks these sites pose to human
health and the environment. Second, we want to help EM turn the
tide on mismanagement and wasteful spending that has resulted
in cost overruns, schedule delays, and little cleanup progress.
DOE has already spent $60 billion on cleanup over the past
12 years, with marginal results. The current schedule and cost
estimates to complete cleanup at DOE's waste sites is 70 years
and $220 billion. However, I hope we can do much better than
that. With better management, why can't we shave 30 years and
$100 billion from these estimates? The answer is, we can.
During the cold war, the Federal Government selected
strategic sites across the Nation to conduct research and
produce nuclear weapons that defend us today. In 1992, former
President Bush ended much of our weapons production activities.
Today, the States want these sites cleaned up, and they have
used the legal tools Congress has given them to compel DOE to
clean up these sites.
Two laws greatly aid the States in their cleanup mission--
the Comprehensive Environmental Response Compensation and
Liability Act and the Resource Conservation and Recovery Act.
These statutes authorize the States to enter into legally
enforceable compliance agreements that have been used to get
DOE's attention and to demand DOE get on with the cleanup.
In the past, relationship between the States and DOE has
been largely adversarial. DOE built nuclear bombs with secrecy,
and it has been hard for the Department to open up and let
outside parties assess the environmental damage.
Many of these compliance agreements were entered into 10 or
more years ago, before anyone believed DOE was really committed
to cleanup and before anyone really knew the extent of the
problems. Thus, some of the older compliance agreements reflect
a cold war attitude between the States and DOE. We know that
when such attitudes prevail, cleanup can become a second
priority. Unlike earlier EM reform initiatives, Assistant
Secretary Roberson's accelerated cleanup initiative is
predicated on cooperation and an up-front agreement between DOE
and the States onsite-specific cleanup plans.
The States hold the key to making this work, and they must
agree to change compliance agreements if it will result in more
risk reduction and accelerated cleanup. DOE must also change
its failed business management processes. Assistant Secretary
Roberson understands these problems well, and her prior job as
the Site Manager at Rocky Flats reflects a commitment to
cleanup.
Today's hearing is not a ``bad news'' hearing. The
Accelerated Cleanup Initiative could prove to be an important
turning point for the EM program, and I want the subcommittee
to review it closely in the early stages.
I look forward to hearing from each of the witnesses and
learning more about how we can accelerate cleanup and cut
billions of dollars from current cost projections. Hopefully
this Accelerated Cleanup Initiative will succeed so there is no
need to schedule accelerated hearings on what went wrong.
The Chair recognizes the ranking member, the gentleman from
Florida, Mr. Deutsch, for 5 minutes.
Mr. Deutsch. Thank you, Mr. Chairman. I appreciate the
staff's work and the Chairman's work setting this up. This is
one of the things that, as a committee, is a lot less
contentious in many of hearings with both sides working very
well together, and I think we are fulfilling our mandate as the
Oversight and Investigations Subcommittee, and I look forward
to your testimony. Yield back the balance of my time.
[The prepared statement of Hon. Peter Deutsch follows:]
Prepared Statement of Hon. Peter Deutsch, a Representative in Congress
from the State of Florida
The U.S. DOE created the Hemispheric Center for Environmental
Technology (HCET) at Florida International University in my State of
Florida in 1995 to research, develop, and demonstrate innovative, cost-
effective technologies to solve crucial environmental problems involved
with the accelerated cleanup of nuclear facilities and the promotion of
the health and safety of the workers involved and their surrounding
communities.
HCET has done a remarkable job of working, for nearly 10 years,
with the Department of Energy in the deactivation and decommissioning
of some of the most strategically important DOE sites in the Nation,
including Fernald (Ohio), Chicago, Albuquerque, Richland (Wash.), and
Oak Ridge (Tenn.) HCET has conducted over 100 major environmental
science and technology investigations for DOE.
I am very pleased to see DOE's involvement with FIU's HCET because
I believe it is important to involve qualified university partners to
assist in the cleanup who are flexible and cost-effective, and who can
work hand in hand with DOE to achieve its mission. This is good for
technology-transfer purposes, as well as for helping us achieve our
student training objectives.
Both Secretary of Energy Abraham and EPA Administrator Christie
Todd Whitman have visited HCET and lauded its many accomplishments in
improving the environment. Secretary Abraham said, ``HCET has complied
an impressive list of technological accomplishments, from deactivation
and decommissioning technology to sensor technology, robotics, and tank
waste remediation.''
EPA Administrator Whitman said ``the work being done here (at HCET)
is a reaffirmation of a belief that President Bush and I share that
some of the best solutions to some of the biggest problems we have
today are happening out in the field.''
Mr. Greenwood. The Chair thanks the gentleman, and
recognizes the gentleman from Kentucky from 5 minutes for an
opening statement.
Mr. Whitfield. Mr. Chairman, thank you very much. We are
delighted to be having this hearing on this important issue. I
want to commend the Department of Energy and the leadership
there for developing this program for accelerated cleanup. It
has been frustrating for those of us who are in Kentucky. I
represent Paducah, Kentucky, in which the Paducah Gaseous
Diffusion Plant is located and is one of the sites eligible for
accelerated cleanup. I noticed that Letters of Intent have
already been signed with 6 or 7 sites, but Paducah, Kentucky is
not one of those sites. I am quite frustrated that I don't know
exactly what has caused the delay because we don't seem to be
able to get sufficient information from the State of Kentucky
on why they are dragging their feet in reaching this agreement
with DOE.
I know there is going to be $1.1 billion in additional
funds for the year 2003, and that if Kentucky does not agree
with the Department of Energy to enter into a Letter of Intent,
we will not get the Paducah site cleaned up until at least the
year 2024. If we can reach an agreement we have a possibility
of doing it by 2010. So, I think we have a unique opportunity
to accelerate these cleanups, and I am disappointed that
Kentucky, our EPA Region IV or someone, has not reached an
agreement yet. I also know that August 1 is quickly
approaching--that is the deadline.
So, I hope that today at this hearing we can at least shed
some light on the unique problems in Kentucky and why we are
not moving forward in a more expeditious way. I look forward to
the testimony and yield back my time.
Mr. Greenwood. The Chair thanks the gentleman.
[Additional statement submitted for the record follows:]
Prepared Statement of Hon. W.J. ``Billy'' Tauzin, Chairman, Committee
on Energy and Commerce
Mr Chairman, thank you for scheduling this hearing to review the
Department of Energy's Office of Environmental Management. This is the
Subcommittee's first review of the EM program during the 107th Congress
and its a good time to measure what progress the program has made in
response to the Subcommittee's numerous hearings in the 104th, 105th,
and 106th Congresses.
Those hearings revealed a troubling past for the EM program. For
instance, in 1996, the Subcommittee uncovered alarming contract
mismanagement and cost overruns with the Pit 9 cleanup project at DOE's
Idaho site.
In 1997, the Subcommittee uncovered severe cost overruns and
schedule delays at the K-Basins cleanup project at the Hanford site,
where spent nuclear fuel must be removed from degraded storage
facilities located just yards away from the Columbia River in
Washington.
Three Subcommittee hearings were held in the 105th and 106th
Congresses that brought to light substantial mismanagement of the EM
program's Office of Science and Technology. The Subcommittee's first
hearing revealed how this small but expensive program had spent $3
billion to develop new cleanup technologies, but could not even provide
a list of technologies it had funded, or demonstrate whether those
technologies had ever been used to clean up a DOE waste site. By our
third hearing, OST had compiled a list of its technologies, but we
learned the EM program had not found much use for them.
Over the years, the Subcommittee has closely reviewed EM's multiple
contract reform initiatives, including failed efforts at fixed-price
contracting, a failed bid to privatize cleanup at the Hanford
radioactive waste tank farms, and the unsuccessful ``10-year''
accelerated cleanup plan.
I am pleased to see that GAO is here today. I appreciate its hard
work, in conjunction with the Subcommittee, on just about all of these
projects.
Today, however, I hope to hear about the progress of the EM program
under the new leadership of Assistant Secretary Jesse Roberson. In the
few months since she took over, I understand she has taken steps to
really turn things around. I am particularly pleased with Assistant
Secretary Roberson's initiative to downsize and re-direct the Office of
Science and Technology, and I hope we can finally get some of those
technologies deployed.
I welcome Assistant Secretary Roberson to her first hearing before
the Committee, and I offer my support for your ambitious accelerated
cleanup initiative. This initiative is a bold and strategic effort. I
believe it could result in real cleanup and you have my support.
However, you have a real fight on your hands to demonstrate
progress. I hope you can finally turn the tide of bad news for the EM
program. Thank you and I yield back.
Mr. Greenwood. Ms. Roberson, Ms. Jones, again, welcome. I
think you are both aware that this committee is holding an
investigative hearing, and when we do so we are accustomed to
take testimony under oath. Do either of you have objections to
testifying under oath?
[Noes.]
Mr. Greenwood. We need to also advise you that pursuant to
the rules of this committee and the rules of the House, that
you are entitled to counsel, if you wish counsel. Do either of
you wish to be represented by counsel?
[Noes.]
Mr. Greenwood. In that case, if you would both stand and
raise your right hands.
[Witnesses sworn.]
Mr. Greenwood. Thank you.
You are under oath, and we will start with you, Ms.
Roberson. You are recognized for 5 minutes for your opening
statement.
TESTIMONY OF HON. JESSIE H. ROBERSON, ASSISTANT SECRETARY FOR
ENVIRONMENTAL MANAGEMENT, DEPARTMENT OF ENERGY; AND GARY JONES,
DIRECTOR, NATURAL RESOURCES AND ENVIRONMENTAL ISSUES, GENERAL
ACCOUNTING OFFICE
Ms. Roberson. Good morning. Chairman Greenwood, members of
the committee, I appreciate this opportunity to discuss
progress in implementing cleanup reform in the Department's
Environmental Management Program. I am pleased to report to you
today that we are making progress in changing our focus from
risk management to risk reduction. We are instilling in this
program the kind of urgency necessary to clean up the nuclear
legacy and to secure our homeland.
The comprehensive review of the environmental program
conducted last year concluded that the program was badly in
need of repair. For more than 10 years, we have spent tens of
billions of dollars, but have failed to make commensurate
progress toward cleanup and risk reduction. We are determined
to make changes. We are moving forward aggressively to make
those changes, and we commit to deliver more cleanup and risk
reduction for the taxpayers' dollars and for the communities
around the sites.
Our first emphasis has been on bringing site cleanup plans
up-to-date. We have been pursuing a deliberative multi-step
process at each of our sites, working with State and EPA
regulators to identify actions to accelerate risk reduction. I
am pleased to report that we have made considerable progress in
reaching mutual agreement on the goals, shared goals,
objectives, and the means to the new risk-based cleanup
strategies. To date, we have signed six Letters of Intent to
pursue accelerated cleanup strategies. We have draft
Performance Management Plans that detail the activities that
support those strategies as to how that cleanup will be
achieved, and those plans are currently undergoing public
review and comment.
We are very close to announcing that additional Letters of
Intent have been finalized. Based on these letters and the
associated Performance Management Plans, on July 8 the
Secretary and the Director of the Office of Management and
Budget agreed that the Administration would very soon transmit
to the Congress a fiscal year 2003 budget amendment for up to
$300 million. This amendment is necessary to support cleanup
reform at numerous sites, as documented in these Letters of
Intent between the Department, the EPA and the States.
We must also tackle the business management systems that
prohibit the program from obtaining a true performance-based
organization. We have begun a dedicated effort to implement
changes in key areas identified in the Top-to-Bottom review
that are critical to the success of the program and the
performance of the accelerated cleanup plan. We will focus
these activities into special projects, each with a complex
wide perspective. Some of these projects are truly implementing
performance-based contracting, addressing obstacles and
reducing risk from spent nuclear fuel, high-level waste, and
nuclear materials faster, and focusing program resources by
eliminating activities that do not contribute directly to
getting on with risk-based cleanup.
As GAO accurately reports, the cleanup at DOE sites is
subject to multiple Federal and State environmental laws. These
are implemented through compliance agreements with the agencies
that enforce the laws. Our focus is on improving the
performance of the program. It is not our intent to get out of
compliance with any of our regulatory agreements, but to adopt
new cleanup approaches and realign priorities, and this may
require modifications to some regulatory milestones. These
agreements are intended to be living documents and contain
processes to do that.
Our efforts to work with regulators to review the cleanup
agreement must be viewed in the context of our overall efforts
to reform and accelerate cleanup. The regulatory agencies are
key to these reform efforts. Without their agreement, we are
hard-pressed to make changes. The good news is that we found
most State and EPA regulators to be as eager to achieve faster
cleanup and risk reduction.
In conclusion, let me say that we have before us an
opportunity to refocus, reshape and transform this program. For
too long, there has been a shared frustration that too little
progress was being made. However, I believe the progress we
have made so far this year and the agreements we have reached
at sites across the country on better ways to attack cleanup
problems demonstrate a shared recognition that we can, and all
must do better. I look forward to working with the Congress,
our State partners, and others, to achieve these goals. I am
pleased to answer your questions.
[The prepared statement of Hon. Jessie H. Roberson
follows.]
Prepared Statement of Jessie H. Roberson, Assistant Secretary for
Environmental Management, U.S. Department of Energy
Mr. Chairman and Members of the Subcommittee, I appreciate this
opportunity to discuss the Department of Energy's Environmental
Management (EM) program, our progress to date in implementing the
cleanup reform initiative, and the impact and role of the compliance
agreements on DOE's cleanup reform initiative.
I particularly appreciate the opportunity to update you on the
progress we are making in reforming the EM program to re-focus efforts
on our cleanup and closure mission and on accelerating risk reduction
at our sites. The comprehensive, ``Top-to-Bottom'' review of the EM
program conducted last year concluded that this program is badly in
need of repair. For more than ten years, we have spent tens of billions
of dollars but have failed to make commensurate progress towards
cleanup and risk reduction. We are determined to make changes. We are
moving forward aggressively to make good on our promises to deliver
more cleanup and risk reduction for the taxpayers' dollar.
Our focus is on improving the performance of the EM program and on
identifying and implementing more risk-oriented and efficient cleanup
approaches that serve the communities around the sites and the
taxpayer. It is not our intent to get out of compliance with any of our
regulatory agreements. These agreements are living documents, with
processes to enable improvement and revisions to achieve mutual goals.
While adopting new cleanup approaches and realigning priorities may
require modification of some milestones, our efforts to work with
regulators and to review the cleanup agreements must be viewed in the
context of our overall efforts to reform and accelerate cleanup.
progress in implementing cleanup reform
Since the Top-to-Bottom review was completed, we have been working
aggressively to evaluate and implement the recommendations. Initially,
our emphasis has been on bringing site cleanup plans up to date.
Significant opportunities for innovative approaches exist. We have been
pursuing a deliberative, multi-step process at each of our sites to
identify actions to accelerate risk reduction, working with regulators
and other stakeholders.
The first step in the process is reaching high-level, strategic
agreement with the state and U.S. Environmental Protection Agency (EPA)
regulators on how the site cleanup can be accelerated. This agreement
is documented in a Letter of Intent signed by DOE and the regulatory
agencies that outlines the broad goals, objectives, and strategic
direction for accelerated cleanup work at the site. We are also
preparing a Performance Management Plan for each site which provides a
detailed delineation of how the site will accelerate risk reduction and
cleanup. From this Plan, we will then develop a baseline crosswalk from
the current baseline to an integrated resource-loaded project baseline
that EM will use to manage cleanup at the site.Throughout the process,
we have worked closely with state and federal regulators to ensure that
compliance obligations are consistent with the accelerated cleanup
plan. When appropriate and on a case-by-case basis, we are working with
regulators to align our regulatory obligations with the cleanup
approaches.
Progress Toward Site Accelerated Cleanup Plans
We have made progress in reaching mutual agreement on the goals,
objectives and means of the new risk based cleanup strategy. To date we
have signed six Letters of Intent to pursue accelerated cleanup
strategies at the following sites.
Hanford Site in Washington, issued on March 5, 2002
Oak Ridge Reservation in Tennessee, issued on May 15, 2002
Nevada Test Site, issued on May 23, 2002
Idaho National Engineering and Environmental Laboratory,
issued on May 30, 2002
Los Alamos and Sandia National Laboratories, and the Waste
Isolation Pilot Plant in New Mexico, issued on May 30, 2002
Savannah River Site in South Carolina, issued on July 12, 2002
Draft Performance Management Plans for about ten sites, including
Hanford, INEEL, Oak Ridge Reservation, and the Savannah River Site,
have already been made available for public comment. Our goal is to
have Letters of Intent and Performance Management Plans, plus
commitments from the regulators to take appropriate actions for
implementation, completed at most of our sites by August 2002.
We are very close to announcing that Letters of Intent have been
finalized for a number of other sites. Based on these letters and the
Performance Management Plans being developed, on July 8, 2002, the
Secretary and the Director of the Office of Management and Budget
agreed that the Administration would very soon transmit to the Congress
an FY 2003 Budget Amendment for up to $300 million. This Amendment is
necessary to support cleanup reforms at numerous cleanup sites
documented by signed Letters of Intent between the Department, EPA and
state regulators.
Taking on Cross-Complex and Internal Challenges
Now that we have begun to update our cleanup plans, we must tackle
the business management systems that prohibit the EM program from
operating as a true performance-based organization. Updating the
cleanup plans is an important goal. However, the ability to actually
carry out the commitments in the updated plans depends on objectively
and credibly adjusting the organization to reflect continuous
improvement.
EM has begun a dedicated effort to implement changes in key areas
identified in the Top-to-Bottom review that are critical to the success
of the program. The implementation of needed changes will be addressed
via a number of special project teams. Some examples of the projects
include:
Implementing performance-based contracting;
Addressing obstacles and reducing risks from spent nuclear
fuel, high level waste, and nuclear materials, faster;
Focusing program resources by eliminating activities that do
not contribute to getting on with a risk-based cleanup; and
Structuring an integrated, accelerated cleanup program for
small sites and projects.
We have offered Federal staff from the field and headquarters the
opportunity to develop proposals and apply to be project managers for
these projects. We have received more than 100 proposals. A senior
level EM manager will serve as an advisor to the project team. Projects
will be managed in accordance with the project management principles
outlined in DOE Orders. This approach is an important part of our human
capital management initiative. Successful execution of these projects
will eliminate many of the barriers that have thwarted previous EM
attempts to accelerate cleanup and reduce life-cycle costs.
doe's compliance obligations
We have reviewed the General Accounting Office's (GAO) draft
report, ``Status and Implications of DOE's Compliance Agreements,'' and
generally support its findings and conclusions. As the GAO noted in
their report, the cleanup at DOE's sites that contributed to the
nation's nuclear weapons program and nuclear energy research is subject
to multiple federal and state environmental laws, implemented and
enforced by multiple agencies. Like other Federal agencies, the
Department must comply with requirements in these laws in the same
manner, and is generally subject to the same sanctions, as a private
party.
The two primary laws governing cleanup are the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), or
Superfund, which governs cleanup of hazardous substances releases, and
the Resource Conservation and Recovery Act (RCRA), which governs the
management of hazardous waste, including mixed hazardous and
radioactive waste. In accordance with these laws, the Department has
entered into legal agreements and orders with State and/or EPA
authorities to carry out its cleanup activities or to resolve
compliance issues. These legal agreements contain milestones that
establish schedules for carrying out specific actions. The GAO draft
report listed 70 agreements at 23 sites governing EM's activities,
incorporating almost 7,200 separate milestones.
Many of the agreements were negotiated ten or more years ago, when
the EM program was in its early years. While reflecting the best
understanding of the contamination problems and technical solutions at
the time, it was recognized even then that the agreements and
milestones would need to be periodically revisited and revised over
time. The agreements therefore contain processes that allow the
Department and the regulators that are parties to the agreements to do
just that. We all recognize that adopting new cleanup approaches and
realigning priorities to ensure we are addressing the highest risk
first may require modification of some milestones contained in the
agreements.
The regulatory agencies that implement and enforce the laws
governing most of our cleanup activities are key to our efforts to
reform the EM program. Without their agreement, we are hard pressed to
make the changes in cleanup approaches that we believe will result in
more risk reduction and accelerated progress. Without their willingness
to adjust milestones when necessary to support more risk-oriented
cleanup priorities or a more cost-effective approach, we may be unable
to proceed no matter how compelling the alternate path.
The good news is that we have found most of our state regulators
and EPA regions to be as eager as we are to achieve faster cleanup. Our
efforts to work with the regulators at each of our sites over the past
months to identify more effective cleanup approaches have resulted in
strategic agreements at a number of our sites. We continue to make
progress in developing the more detailed plans that articulate the
activities and schedules for an accelerated cleanup approach.
Let me be clear, however. The Department understands its obligation
to comply with environmental laws and compliance agreements. We also
believe it is critical that those obligations are compatible with
reducing risk, as quickly and effectively as possible, and with
completing the cleanup task assigned to us. We believe reform of DOE's
environmental cleanup program can be achieved while meeting our
environmental obligations.
conclusion
The Department's cleanup reform initiative is not focused solely,
or even primarily, on the agreements. Rather it is focused on the EM
cleanup program itself and on its mission to complete cleanup and close
sites. We are determined to ensure that our cleanup efforts are
directed toward reducing risk as quickly and efficiently as possible.
We have before us an opportunity to refocus, reshape and transform
this program. I believe the progress we have made so far and the
agreements we have reached at sites across the country on better ways
to attack cleanup problems, demonstrate a shared frustration with too
little progress to date, and a shared commitment to do better. I look
forward to continuing working with the Congress and others to achieve
our goals.
Mr. Greenwood. Thank you, Ms. Roberson. I failed to
properly introduce you as the Assistant Secretary for
Environmental Management at the Department of Energy. I
apologize for that. Thank you for your testimony.
Ms. Jones is the Director of Natural Resources and
Environment Issues at the General Accounting Office. Welcome,
and you are also recognized for 5 minutes.
TESTIMONY OF GARY JONES
Ms. Jones. Thank you, Mr. Chairman. We are pleased to be
here to discuss our report which you are releasing at the
hearing today on cleanup compliance agreements. Specifically, I
want to focus on what compliance agreements are and how they
work, whether costs to comply with them are shown in the
budget, and what possible implications they have on DOE's
efforts to improve the cleanup program.
Compliance agreements are legally enforceable documents
between DOE and its regulators, specifying agreements on
cleanup activities and milestones. We identified 70 compliance
agreements at 23 DOE sites that contain almost 7,200 separate
milestones. The milestones range from requiring a specific
cleanup activity such as remediating groundwater contamination
in a given area, to obtaining a permit, one step that
contributes to eventual cleanup.
DOE reported completing about 80 percent of these
milestones by the time originally scheduled in the agreements,
however, the number of milestones completed is not a good
measure of cleanup progress. One reason is that many of the
milestones require completing an administrative requirement
that may not indicate that actual cleanup work was performed.
When DOE misses a milestone, regulators have several
options, including negotiating a new date or assessing a
penalty. Thus far, regulators have generally been willing to
negotiate extensions approving about 93 percent of DOE's
requests for milestone changes.
The cost of complying with these agreements is not
specifically identified in a DOE budget submitted to the
Congress and, in fact, DOE is not required to provide this
information to the Congress. Individual DOE sites develop
annual compliance cost estimates as part of their budget
request. However, DOE Headquarters officials adjust those
individual site estimates to reflect national priorities and to
reconcile various competing demands. Consequently, the final
budget request does not identify what portion of the request is
intended to address compliance requirements.
Compliance agreements are site-specific and do not include
specific information on the risks being addressed. Therefore,
they are not intended to provide a mechanism for DOE to use in
prioritizing risks for an individual site or among various
sites. In developing compliance agreements, risk is only one of
several factors considered. Other factors include the
preference and concerns of local stakeholders, business and
technical risks, the cost associated with maintaining old
facilities, and the desire to achieve progress on cleanup.
One of the central components of DOE's February 2002
initiative to improve the Environmental Management Program is
to prioritize cleanup based on risk reduction. In the past, DOE
has made several attempts to develop a risk-based methodology
across its sites, but has not succeeded. Therefore, DOE's
approach has been to provide a relatively stable amount of
funding at each site from year to year, and generally allow
local DOE managers and the community to determine the schedules
and prioritizing for sequencing work at each site.
DOE officials have told us that they are considering how
best to develop a risk-based cleanup strategy, but it is
unclear when the strategy will be in place. Meanwhile, DOE is
proceeding to select and approve sites where cleanup activities
would be accelerated. As noted by Assistant Secretary Roberson,
six major DOE sites with compliance agreements have Letters of
Intent with their regulators outlining an agreement in
principle to use a risk-based approach to accelerate cleanup
with increased funding.
Will compliance agreements get in the way of EM's new
initiative? They haven't in the past. DOE's past management
initiatives, such as contract reform, generally have not
involved significant changes in cleanup approach or reductions
in funding at individual sites. Because past initiatives did
not require these types of changes, regulators generally
supported them.
This initiative is different. In some cases, to
significantly reduce cleanup costs, it involves potential
changes in technology or approach that would result in leaving
more of the waste onsite than currently planned. In other
cases, allocating funding based on risk reduction could shift
funding among sites. Regulators told us during the course of
our work that they would be opposed to receiving reduced
funding and might not be willing to modify the compliance
agreements to further extend scheduled milestones or leave more
waste onsite.
Mr. Chairman, there are challenges ahead. Management
leadership and resolve will be needed to overcome failures of
past attempts to implement a risk-based approach to cleanup.
DOE must also follow through on its plan to involve regulators
in site implementation plans. DOE generally did not involve
States and regulatory agencies in the development of its
management initiative. Regulators have expressed concerns about
the lack of specifics in the initiative, how implementation
plans will be developed at individual sites, and proposals that
may delay or significantly alter cleanup strategies. Even where
regulators have signed on to the goals in the Letters of
Intent, many technical, regulatory and operational decisions
need to be made and implementation barriers overcome to make
these goals a reality.
Thank you. I would be happy to respond to any questions.
[The prepared statement of Gary Jones follows.]
Prepared Statement of Gary Jones, Director, Natural Resources and
Environment Issues, General Accounting Office
Mr. Chairman: We are here today to discuss compliance agreements
that affect the Department of Energy's (DOE) cleanup program.
Compliance agreements are legally enforceable documents between DOE and
its regulators, specifying cleanup activities and milestones that DOE
has agreed to achieve.1 DOE's Office of Environmental
Management (EM) is responsible for much of the actual cleanup activity,
which is carried out primarily under two federal laws--the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (CERCLA), and the Resource Conservation and
Recovery Act of 1976, as amended (RCRA). Besides DOE, other parties to
the agreements include the Environmental Protection Agency (EPA) and
state agencies that have jurisdiction over environmental and health
issues. Over the years, these compliance agreements have been used to
implement much of the cleanup activity at DOE sites. In February 2002,
the Secretary of Energy proposed a new initiative to refocus DOE's
cleanup program by accelerating risk reduction at the sites. Questions
have been raised about the relationship of this initiative to the
schedules outlined in compliance agreements.
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\1\ The term ``compliance agreement'' includes, but is not limited
to, Federal Facility Agreements, Interagency Agreements, settlement
agreements, consent orders, and compliance orders. It does not include
federal and state environmental requirements that are not implemented
by compliance agreements. Also, some cleanup work is required in
certain of DOE's RCRA permits that authorize waste treatment
operations. We did not include RCRA permits in our study because (1)
the great majority of DOE's cleanup work is covered by compliance
agreements and (2) cleanup work required by RCRA permits is generally
also included under the compliance agreements at those sites. Also in
this testimony, we use the term ``regulators'' to mean those federal
and state agencies that are parties to DOE's compliance agreements.
---------------------------------------------------------------------------
My testimony is based on our report to you on the status and
implications of DOE's compliance agreements, which you are releasing
today.2 My testimony addresses five topics: (1) the types of
compliance agreements, (2) DOE's progress in achieving the milestones
contained in the agreements, (3) whether the cost to comply with the
agreements is reflected in DOE's annual budget request, (4) whether the
agreements allow DOE to prioritize work across sites according to
relative risk, and (5) possible implications the agreements have on
DOE's efforts to improve the cleanup program.
---------------------------------------------------------------------------
\2\ U.S. General Accounting Office, Waste Cleanup: Status and
Implications of DOE's Compliance Agreements, GAO-02-567 (Washington,
D.C.: May 30, 2002).
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In summary,
The 70 compliance agreements at DOE sites vary greatly but can
be divided into three main types. These are: (1) agreements
specifically required by CERCLA to address cleanup of federal sites
on EPA's national priorities list of the nation's worst hazardous
waste sites or by RCRA to address the management of mixed
radioactive and hazardous waste at DOE facilities, (2) court-
ordered agreements resulting from lawsuits initiated primarily by
states, and (3) other agreements, including state administrative
orders enforcing state hazardous waste management laws.
Collectively, as of December 2001, the 70 agreements had 7,186
schedule milestones.3
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\3\ Five of the agreements containing 130 milestones were completed
and are no longer active. For the remaining agreements, the number of
milestones will increase over time because some of the agreements
provide for setting milestone dates periodically over the life of the
agreements rather than trying to establish all of the milestone dates
at the beginning of the agreements.
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DOE reported completing about 80 percent of these milestones
by the time originally scheduled in the agreements. Many of the
milestones completed either have been administrative, such as
issuing a report, or have involved completing some step in the
cleanup process, such as conducting certain tests. Although such
process steps may be important in arriving at eventual cleanup, for
several reasons the number of milestones completed is not a good
measure of cleanup progress. For example, many of the milestones
require completing an administrative requirement that may not
indicate what, if any, actual cleanup work was performed. When DOE
misses a milestone, regulators have several options, including
negotiating a new date or assessing a penalty. Thus far, regulators
have generally been willing to negotiate extensions when DOE found
itself unable to complete a milestone on time, approving about 93
percent of DOE's requests for milestone changes. However, DOE has
paid about $1.8 million in monetary penalties and about $4 million
in other penalties (such as added work requirements) because
regulators took enforcement actions for missed milestones.
The cost of complying with these agreements is not
specifically identified in the DOE budget submitted to the
Congress. Individual DOE sites develop annual compliance cost
estimates as part of their budget requests. However, DOE
headquarters officials adjust those individual site estimates to
reflect national priorities and to reconcile various competing
demands. Consequently, the final budget request does not identify
what portion of the request is intended to address compliance
requirements. DOE is not required to provide this information to
the Congress. Even if it were possible to trace this relationship
in the final budget, the figure would have limited significance
because sites' compliance estimates are based primarily on the
expected size of the site budget. If the funding sites receive is
insufficient to accomplish all of the compliance activities planned
for that year, sites must decide which activities to defer to
future years. In contrast, if sites receive more funding than
anticipated in a particular year, they have an opportunity to
increase the amount of money spent on compliance requirements.
Compliance agreements are site-specific and are not intended
to provide a mechanism for DOE to use in prioritizing risks among
the various sites. The agreements reflect local DOE and community
priorities for addressing environmental contamination at individual
sites and were not designed or developed to consider environmental
risk from a DOE-wide perspective. DOE has made several attempts to
develop a risk-based methodology across its sites, but has not
succeeded because of problems, such as its failure to integrate any
of the approaches into the decision-making process. Rather than
prioritize risk across sites, DOE has attempted to provide a
relatively stable amount of funding at each site from year to year
and generally allow local DOE managers and the community to
determine the priorities for sequencing work at each site. However,
DOE's February 2002 initiative to improve the Environmental
Management program has as a central component developing risk-
reduction priorities and concentrating its efforts on activities
that contribute to risk reduction. DOE is considering how to best
develop a risk-based cleanup strategy, but it is unclear when the
strategy will be in place. Meanwhile, DOE is proceeding to select
and approve sites where cleanup activities would be accelerated. To
date, at least five major DOE sites with compliance agreements have
signed letters of intent with their regulators outlining an
agreement in principle to accelerate cleanup with increased
funding.
Compliance agreements have not been a barrier to previous DOE
management initiatives, but it is not clear if the compliance
agreements will be used to oppose DOE's latest initiative to focus
on accelerating risk reduction at the sites. This initiative could
have a potentially greater impact on cleanup approaches and funding
levels than prior initiatives. DOE's past management initiatives,
such as the contract reform initiative, generally have not involved
significant changes in cleanup approach or significant reductions
in funding at individual sites. Regulators generally supported
these initiatives, saying that they favor efforts to implement
faster, less costly ways to reduce the environmental risks at the
sites, as long as DOE's approach did not reduce funding for
individual sites. DOE's recent initiative, however, has the
potential to alter the funding balance among DOE sites. In some
cases, it involves potential changes in technology or approach that
would result in leaving more of the waste on site than currently
planned and thus could significantly reduce cleanup costs. In other
cases, it could allocate funding using a greater emphasis on risk
reduction, which could shift funding among sites. Regulators told
us that they would be opposed to receiving reduced funding at their
individual sites and might not be willing to modify the compliance
agreements to further extend schedule milestones. DOE generally did
not involve the regulators in developing its reform initiative, but
it is now coordinating with regulators as it develops
implementation strategies for each site. Beyond the five or more
letters of intent signed to date, it is too early to tell if
regulators will support these changes to site cleanup programs.
Furthermore, even at locations where letters of intent have been
signed, many technical, regulatory, and operational decisions need
to be made to implement the proposals.
background
DOE is responsible for a nationwide complex of facilities created
during World War II and the Cold War to research, produce, and test
nuclear weapons. Much of the complex is no longer in productive use,
but it contains vast quantities of radioactive waste related to the
production of nuclear material, such as plutonium-contaminated sludge,
and hazardous waste, such as solvents and hazardous chemicals. Since
the 1980s, DOE has been planning and carrying out activities around the
complex to clean up, contain, safely store, and dispose of these
materials. It is a daunting challenge, involving the development of
complicated technologies and costing about $220 billion over 70 years
or more. DOE has reported completing its cleanup work at 74 of the 114
sites in the complex, but those were small and the least difficult to
deal with. The sites remaining to be cleaned up present enormous
challenges to DOE.
DOE's cleanup program is carried out primarily under two
environmental laws. Under section 120 of CERCLA, EPA must, where
appropriate, evaluate hazardous waste sites at DOE's facilities to
determine whether the waste sites qualify for inclusion on the National
Priorities List, EPA's list of the nation's most serious hazardous
waste sites. For each facility listed on the National Priorities List,
section 120(e) (2) of CERCLA requires DOE to enter into an interagency
agreement with EPA for the completion of all necessary remedial actions
at the facility. These agreements often include the affected states as
parties to the agreements. These agreements may be known as Federal
Facility Agreements or Tri-Party Agreements. Under amendments to RCRA
contained in section 105 of the Federal Facility Compliance Act of
1992, DOE generally must develop site treatment plans for its mixed-
waste sites.4 These plans are submitted for approval to
states authorized by EPA to perform regulatory responsibilities for
RCRA within their borders or to EPA if the state does not have the
required authority. Upon approval of the treatment plans, the state or
EPA must issue an order requiring compliance with the approved plan.
The agreements are generally known as Federal Facility Compliance
orders.
---------------------------------------------------------------------------
\4\ Mixed wastes are wastes that contain both radioactive materials
subject to the Atomic Energy Act and hazardous wastes, such as
degreasing solvents.
---------------------------------------------------------------------------
DOE carries out its cleanup program through the Assistant Secretary
for Environmental Management and in consultation with a variety of
stakeholders. These include the federal EPA and state environmental
agencies, county and local governmental agencies, citizen groups,
advisory groups, Native American tribes, and other organizations. In
most cases, DOE's regulators are parties to the compliance
agreements.5 Other stakeholders advocate their views through
various public involvement processes including site-specific advisory
boards.
---------------------------------------------------------------------------
\5\ In a few instances, other stakeholders have become signatories
to compliance agreements in the settlement of ongoing litigation
brought against DOE.
---------------------------------------------------------------------------
compliance agreements are of three main types
Compliance agreements in effect at DOE sites can be grouped into
three main types (see table 1). Agreements of the first type--those
specifically required by CERCLA or by RCRA--are in effect at all of
DOE's major sites. They tend to cover a relatively large number of
cleanup activities and have the majority of schedule milestones that
DOE must meet. By contrast, agreements that implement court-ordered
settlements exist at only a few DOE sites, tend to be focused on a
specific issue or concern, and have fewer associated schedule
milestones. These agreements are typically between DOE and states. The
remaining agreements are based on either federal or state environmental
laws and address a variety of purposes, such as cleaning up spills of
hazardous waste or remediating groundwater contamination, and have a
wide-ranging number of milestones.
Table 1: Types of DOE Compliance Agreements and Related Schedule
Milestones
------------------------------------------------------------------------
Number of
Type of agreement Number of Number of enforceable
agreements sites milestones
------------------------------------------------------------------------
Agreements specifically required 29 20 5,251
to implement CERCLA and RCRA
requirements....................
Court-ordered agreements 6 6 146
resulting from lawsuits.........
All other agreements............. 35 12 1,789
Total............................ 70 *23 7,186
------------------------------------------------------------------------
*The numbers in this column do not add because many DOE sites have more
than one agreement.
Source: GAO analysis of DOE data.
Most of the milestones DOE must meet are contained in the
compliance agreements at its six largest sites--Hanford, Savannah
River, Idaho Falls, Rocky Flats, Oak Ridge, and Fernald. These six DOE
sites are important because they receive about two-thirds of DOE's
cleanup funding. In all, these sites account for 40 of the agreements
and more than 4,200 milestones.
most milestone dates have been met, but meeting milestones is not a
good measure of cleanup progress
DOE reported completing about two-thirds of the 7,186 milestones
contained in its compliance agreements as of December 2001. Of the
4,558 milestones completed, about 80 percent were finished by the
original due date for the milestone. The remainder of the completed
milestones were finished either after the original due date had passed
or on a renegotiated due date, but DOE reported that the regulators
considered the milestones to be met. DOE's six largest sites reported
completing a total of 2,901 of their 4,262 milestones and met the
original completion date for the milestones an average of 79 percent of
the time. As table 2 shows, this percentage varied from a high of 95
percent at Rocky Flats to a low of 47 percent at Savannah River.
Besides the 1,334 milestones currently yet to be completed, additional
milestones will be added in the future.
Table 2: Information on Compliance Agreement Milestones at DOE's Six Largest Cleanup Sites
Dollars In millions
----------------------------------------------------------------------------------------------------------------
Percent of
Current EM Number of completed
lifecycle Number of Number of milestones milestones
Site and state cleanup enforceable milestones completed meeting
estimate milestones \1\ completed on original original
date \2\ due date
----------------------------------------------------------------------------------------------------------------
Hanford (including Office of River $62,097 1,080 825 743 90
Protection), Washington....................
Savannah River, South Carolina.............. 37,809 714 556 264 47
Idaho Falls, Idaho.......................... 27,881 428 334 312 93
Oak Ridge, Tennessee........................ 8,456 846 513 360 70
Rocky Flats, Colorado....................... 7,705 119 62 59 95
Fernald, Ohio............................... 3,341 1,075 611 558 91
----------------------------------------------------------------------------------------------------------------
\1\ The total number of milestones is not yet known because at some sites, many milestones will be added in the
future as cleanup strategies change, new schedules are set, and new work is defined.
\2\ The number of milestones completed on the original due date is the total of all milestones satisfactorily
completed the original date DOE agreed to with regulators. Those milestones completed on other than the
original due date were generally not considered missed milestones because the milestone dates were either
extended or renegotiated with regulators.
Source: GAO analysis of DOE data.
Although DOE has completed many of the milestones on time, for
several reasons DOE's success in completing milestones on time is not a
good measure of progress in cleaning up the weapons complex.
Specifically:
Many of the milestones do not indicate what cleanup work has
been accomplished. For example, many milestones require
completing an administrative requirement that may not indicate
what, if any, actual cleanup work was performed. At DOE's six
largest sites, DOE officials reported that about 73 percent of
the 2,901 schedule milestones completed were tied to
administrative requirements, such as obtaining a permit or
submitting a report.
Some agreements do not have a fixed number of milestones, and
additional milestones are added over time as the scope of work
is more fully defined. For example, one of Idaho Falls'
compliance agreements establishes milestones for remedial
activities after a record of decision 6 has been
signed for a given work area. Four records of decision
associated with the agreement have not yet been approved. Their
approval will increase the number of enforceable milestones
required under that agreement.
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\6\ A record of decision is a document used to select the method of
remedial action to be implemented at a site following the completion of
a feasibility study or an environmental impact statement.
---------------------------------------------------------------------------
Many of the remaining milestones are tied to DOE's most
expensive and challenging cleanup work, much of which still
lies ahead. Approximately two-thirds of the estimated $220
billion cost of cleaning up DOE sites will be incurred after
2006. DOE has reported that the remaining cleanup activities
present enormous technical and management challenges, and
considerable uncertainties exist over the final cost and time
frame for completing the cleanup.
Even though schedule milestones are of questionable value as a
measure of cleanup progress, the milestones do help regulators track
DOE's activities. Regulators at the four sites we visited said that the
compliance agreements they oversee and the milestones associated with
those agreements provide a way to bring DOE into compliance with
existing environmental laws and regulations. They said the agreements
also help to integrate the requirements under various federal laws and
allow regulators to track annual progress against DOE's milestone
commitments.
Regulators' Flexible Approach Results in Renegotiated Milestones and
Few Penalties
Regulators have generally been flexible in agreeing with DOE to
change milestone dates when the original milestone could not be met.
DOE received approval to change milestone deadlines in over 93 percent
of the 1,413 requests made to regulators. Only 3 percent of DOE's
requests were denied. Regulators at the four sites we visited told us
they prefer to be flexible with DOE on accomplishing an agreement's
cleanup goals. For example, they generally expressed willingness to
work with DOE to extend milestone deadlines when a problem arises due
to technology limitations or engineering problems. Because regulators
have been so willing to adjust milestones, DOE officials reported
missing a total of only 48 milestones, or about 1 percent of milestones
that have been completed.
Even in those few instances where DOE missed milestone deadlines
and regulators were unwilling to negotiate revised dates, regulators
have infrequently applied penalties available under the compliance
agreements. DOE reported that regulators have taken enforcement actions
only 13 times since 1988 when DOE failed to meet milestone deadlines.
These enforcement actions resulted in DOE paying about $1.8 million in
monetary penalties, as shown in table 3.
Table 3. Number of Compliance Agreement Missed Milestones and Monetary
Penalties Paid at DOE Sites
------------------------------------------------------------------------
Enforcement Monetary
Site and state Milestones actions penalty
missed taken paid
------------------------------------------------------------------------
Hanford, Washington.............. 13 2 \1\$100,000
,
Idaho Falls, Idaho............... 4 2 \2\970,000
Portsmouth, Ohio................. 2 2 292,000
Fernald, Ohio.................... 7 3 250,000
Oak Ridge, Tennessee............. 2 2 100,000
Rocky Flats, Colorado............ 2 2 100,000
Total............................ 30 13 $1,812,000
------------------------------------------------------------------------
\1\ Hanford regulators recently levied a monetary penalty of $5,000 for
the first week and $10,000 for each additional week that DOE missed a
July 31, 2001, milestone to start construction of a waste treatment
facility. However, regulators said they will cancel the penalty if DOE
meets a new milestone date set for the end of this year. Therefore,
this monetary penalty is not included in table 3.
\2\ In April 2002, DOE agreed to pay $800,000 for missing a milestone
requiring submission of scope of work documents for one of the site's
waste burial sites. As of the time of this report, DOE had not yet
paid the penalty. Therefore, this monetary penalty is not included in
table 3.
Source: GAO analysis of DOE data.
In addition to or instead of regulators assessing monetary
penalties, several DOE sites agreed to other arrangements valued at
about $4 million. For example, for missing a milestone to open a
transuranic 7 waste storage facility at the Rocky Flats
site, the site agreed to provide a $40,000 grant to a local emergency
planning committee to support a chemical-safety-in-schools program. At
the Oak Ridge site, because of delays in operating a mixed waste
incinerator, site officials agreed to move up the completion date for
$1.4 million worth of cleanup work already scheduled. Also, at three
sites--Paducah, Kentucky; Lawrence Livermore Main Site, California; and
Nevada Test Site, Nevada--the regulators either did not impose
penalties for missed milestones or the issue was still under discussion
with DOE at the time of our review.
---------------------------------------------------------------------------
\7\ Transuranic waste contains man-made radioactive elements with
atomic numbers higher than that of uranium, such as plutonium.
---------------------------------------------------------------------------
doe's budget request does not identify the funding needed to meet
compliance requirements
The President's budget submitted to the Congress does not provide
information on the amount of funding requested for DOE's compliance
requirements. DOE sites prepare budget estimates that include
compliance cost estimates and submit them for consideration by DOE
headquarters. However, DOE headquarters officials evaluate individual
site estimates and combine them into an overall DOE-wide budget, taking
into account broader considerations and other priorities that it must
address as part of the give-and-take of the budget process. As a
result, the final budget sent to the Congress has summary information
on DOE's programs and activities, but it provides no information on the
portion of the budget needed to fund compliance requirements. DOE is
not required to develop or present this information to the Congress.
The President's budget typically states that the DOE funding requested
is sufficient to substantially comply with compliance agreements, but
it does not develop or disclose the total amount of funding needed for
compliance. Officials at DOE headquarters told us that budget guidance
from the Office of Management and Budget does not require DOE to
develop or present information on the cost of meeting compliance
requirements, and they said doing so for the thousands of milestones
DOE must meet would be unnecessarily burdensome. They said their
approach has been to allocate funds appropriated by the Congress and
make it the sites' responsibility to use the funds in a way that meets
the compliance agreement milestones established at the site level.
Individual DOE sites develop information on the estimated cost of
meeting compliance agreements, but the annual estimates are a flexible
number. Sites develop these estimates because many of the compliance
agreements require DOE to request sufficient funding each year to meet
all of the requirements in the agreements. Also, DOE must respond to
Executive Order 12088, which directs executive agencies to ensure that
they request sufficient funds to comply with pollution control
standards. Accordingly, each year DOE's sites develop budget estimates
that also identify the amount needed to meet compliance requirements.
The sites' process in developing these compliance estimates shows that
a compliance estimate is a flexible number. For example, two budget
estimates typically completed by the sites each year are the ``full
requirements'' estimate and the ``target'' estimate. The full
requirements estimate identifies how much money a site would need to
accomplish its work in what site officials consider to be the most
desirable fashion. The target estimate reflects a budget strategy based
primarily on the amount of funding the site received the previous year
and is considered a more realistic estimate of the funding a site can
expect to receive. For each of these budget estimates, DOE sites also
include an estimate of their compliance costs. As a result of this
process, DOE sites usually have at least two different estimates of
their compliance costs for the same budget year. Table 4 shows how the
compliance cost estimates related to compliance agreements changed
under different budget scenarios at four DOE sites.
Table 4: Cost of Meeting Compliance Requirements under Two Different Budget Scenarios at Four DOE Sites, Fiscal
Year 2002
Dollars in millions
----------------------------------------------------------------------------------------------------------------
Full requirements estimate Target estimate
DOE Site -------------------------------------------------------
Compliance\1\ Total Compliance\1\ Total
----------------------------------------------------------------------------------------------------------------
Hanford
Richland.............................................. $429.6 $958.4 $265.5 $721.8
River Protection...................................... 987.1 1,149.7 685.2 838.0
Idaho Falls............................................. 366.6 643.1 313.6 540.6
Savannah River.......................................... 294.5 1,411.1 288.4 1,268.5
Oak Ridge............................................... 424.6 741.7 405.5 668.3
----------------------------------------------------------------------------------------------------------------
\1\ The compliance amounts in this column show only the funding associated with meeting requirements contained
in compliance agreements. It does not include (1) estimates of the funding needed to comply with requirements
in federal, state, or local environmental laws and regulations that are not part of a compliance agreement or
(2) the funding DOE estimates is necessary to maintain minimal site infrastructure, security, and safety
requirements.
Source: GAO analysis of DOE data.
The multiple estimates of compliance costs developed by individual
DOE sites indicate that DOE sites have alternative ways of achieving
compliance in any given year. DOE site officials said that how much DOE
plans to spend on compliance activities each year varies depending on
the total amount of money available. Because many of the compliance
milestones are due in the future, sites estimate how much compliance
activity is needed each year to meet the future milestones. If sites
anticipate that less money will be available, they must decide what
compliance activities are critical for that year and defer work on some
longer-term milestones to future years. On the other hand, if more
money is available, sites have an opportunity to increase spending on
compliance activities earlier than absolutely necessary.
compliance agreements are site specific and do not allow for managing
risks across doe sites
DOE's compliance agreements focus on environmental issues at
specific sites and do not include information on the risks being
addressed. As a result, they do not provide a means of setting
priorities for risks among sites or a basis for decision-making across
all DOE sites. Risk is only one of several factors considered in
setting the milestones in compliance agreements. Other factors include
the preferences and concerns of local stakeholders, business and
technical risk, the cost associated with maintaining old facilities,
and the desire to achieve demonstrable progress on cleanup. The
schedules for when and in what sequence to perform the cleanup work
reflect local DOE and stakeholder views on these and other factors and
may not reflect the level of risk. For example, regulators at DOE's
Savannah River site told us that they were primarily concerned that DOE
maintain a certain level of effort and they expected DOE to schedule
cleanup activities to most efficiently clean up the site. DOE developed
a decision model to determine how to allocate its cleanup dollars at
Savannah River to achieve this efficiency. A group of outside reviewers
assessing the system at the request of site management concluded that
the model was so strongly weighted to efficiency that it was unlikely
that serious risks to human health or the environment could alter the
sequencing of work. DOE officials said they revised the model so that
serious risks receive greater emphasis.
DOE's Attempts to Develop a Risk-Based Approach Have Not Been
Successful
In response to concerns expressed by the Congress and others about
the effectiveness of the cleanup program, DOE has made several attempts
to develop a national, risk-based approach to cleanup, but has not
succeeded. For example, in 1999, DOE pilot-tested the use of site risk
profiles at 10 DOE offices. The profiles were intended to provide risk
information about the sites, make effective use of existing data at the
sites, and incorporate stakeholder input. However, reviewers found that
the site profiles failed to adequately address environmental or worker
risks because the risks were not consistently or adequately documented.
In 2001, DOE eliminated a support group responsible for assisting the
sites with this effort, and the risk profiles are generally no longer
being developed or used.
A 1999 DOE-funded study to evaluate its efforts to establish
greater use of risk-based decision-making concluded that none of the
attempts had been successful.8 Common problems identified by
the study included poor documentation of risks and inconsistent scoring
of risks between sites. The study reported that factors contributing to
the failure of these efforts included a lack of consistent vision about
how to use risk to establish work priorities, the lack of confidence in
the results by DOE personnel, the unacceptability of the approaches to
stakeholders at the sites, and DOE's overall failure to integrate any
of the approaches into the decision-making process. However, the study
concluded that the use of risk as a criterion for cleanup decision-
making across DOE's sites not only was essential, it was also feasible
and practical, given an appropriate level of commitment and effort by
DOE.
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\8\ Consortium for Risk Evaluation with Stakeholder Participation,
Peer Review of the U.S. Department of Energy's Use of Risk in Its
Prioritization Process, (New Brunswick, NJ: Dec. 15, 1999).
---------------------------------------------------------------------------
Accelerated Schedules in DOE Initiative Signal the Need to Develop a
Risk-Based Approach
DOE plans to shift its cleanup program to place greater focus on
rapid reduction of environmental risk, signaling yet again the need for
a national risk-based approach to cleanup. Without a national, risk-
based approach to cleanup in place, DOE's budget strategy had been to
provide stable funding for individual sites and to allow the sites to
determine what they needed most to accomplish. However, in a February
2002 report, DOE described numerous problems with the environmental
management program and recommended a number of corrective
actions.9 The report concluded that, among other things, the
cleanup program was not based on a comprehensive, coherent, technically
supported risk prioritization; it was not focused on accelerating risk
reduction; and it was not addressing the challenges of uncontrolled
cost and schedule growth. The report recommended that DOE, in
consultation with its regulators, move to a national strategy for
cleanup. In addition, the report noted that the compliance agreements
have failed to achieve the expected risk reduction and have sometimes
not focused on the highest risk. The report recommended that DOE
develop specific proposals and present them to the states and EPA with
accelerated risk reduction as the goal.
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\9\ U.S. Department of Energy, A Review of the Environmental
Management Program, (Washington, D.C.: Feb. 4, 2002).
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DOE's new initiative provides additional funds for cleanup reform
and is designed to serve as an incentive to sites and regulators to
identify accelerated risk reduction and cleanup approaches. DOE's
fiscal year 2003 budget request includes a request for $800 million for
this purpose. Moreover, the Administration has agreed to support up to
an additional $300 million if needed for cleanup reforms. The set-aside
would come from a reduction in individual site funding levels and an
increase in the overall funding level for the cleanup program. The
money would be made available to sites that reach agreements with
federal and state regulators on accelerated cleanup approaches. Sites
that do not develop accelerated programs would not be eligible for the
additional funds. As a result, sites that do not participate could
receive less funding than in past years.
To date, at least five major DOE sites with compliance agreements
have signed letters of intent with their regulators outlining an
agreement in principle to accelerate cleanup--Hanford, Idaho, Los
Alamos, Oak Ridge, and Nevada Test Site. However, the letters of intent
generally also include a provision that the letters do not modify the
obligations DOE agreed to in the underlying compliance agreements. At
Hanford, DOE and the regulators signed a letter of intent in March 2002
to accelerate cleanup at the site by 35 years or more. DOE and the
regulators agreed to consider the greatest risks first as a principle
in setting cleanup priorities. They also agreed to consider, as targets
of opportunity for accelerated risk reduction, 42 potential areas
identified in a recent study at the site. While accelerating the
cleanup may hold promise, Hanford officials acknowledged that many
technical, regulatory, and operational decisions need to be made to
actually implement the proposals in the new approach.
DOE is proceeding with the selection and approval of accelerated
programs at the sites, as well as identifying the funding for those
accelerated programs. At the same time, DOE is considering how best to
develop a risk-based cleanup strategy. DOE's Assistant Secretary for
Environmental Management said that in developing the risk-based
approach, DOE should use available technical information, existing
reports, DOE's own knowledge, and common sense to make risk-based
decisions. Because DOE's approach to risk assessment is under
development, it is unclear whether DOE will be able to overcome the
barriers encountered during past efforts to formalize a risk-assessment
process. In the interim, DOE headquarters review teams were evaluating
the activities at each site and were qualitatively incorporating risk
into those evaluations.
compliance agreements were not a barrier to past management
improvements, but impact on february 2002 initiative is unclear
Compliance agreements have not been a barrier to previous DOE
management improvements, but it is not clear if the agreements will be
used to oppose proposed changes stemming from the February 2002
initiative. DOE has implemented or tried to implement a number of
management initiatives in recent years to improve its performance and
address uncontrolled cost and schedule growth. For example, in 1994, it
launched its contract reform initiative; in 1995, it established its
privatization initiative; 10 and in 1998, it implemented its
accelerated path-to-closure initiative. These initiatives affected how
DOE approached the cleanup work, the relationship DOE had with its
contractors, and, in some cases, the schedule for completing the work.
Based on our review of past evaluations of these initiatives and
discussions with DOE officials and regulators at DOE sites, it appears
that DOE proceeded with these initiatives without significant
resistance or constraints as a result of the compliance agreements.
---------------------------------------------------------------------------
\10\ DOE's privatization was intended to reduce the cost of cleanup
by attracting ``best in class'' contractors with fixed price contracts
that required contractors to design, finance, build, own, and operate
treatment facilities and to receive payments only for successfully
treating DOE's wastes.
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Because DOE's cleanup reform initiative is in its early stages, and
site-specific strategies are only beginning to emerge, it is unclear
how the site compliance agreements will affect implementation of DOE's
latest cleanup reforms. For example, it is not yet known how many sites
will participate in DOE's initiative and how many other sites will
encounter cleanup delays because of reduced funding. However, early
indications suggest caution. Parties to the agreements at the sites we
visited were supportive of DOE's overall efforts to improve management
of the cleanup program, but expressed some concerns about proposals
stemming from the February 2002 review of the program. They said that
they welcome DOE's efforts to accelerate cleanup and focus attention on
the more serious environmental risks because such initiatives are
consistent with the regulators' overall goals of reducing risks to
human health and the environment. Most regulators added, however, that
DOE generally had not consulted with them in developing its reform
initiative and they were concerned about being excluded from the
process. Furthermore, they said DOE's initiative lacked specific
details and they had numerous questions about the criteria DOE will use
to select sites and the process it will follow at those sites to
develop an implementation plan to accelerate cleanup and modify cleanup
approaches.
Most regulators said they would not view as favorable any attempt
by DOE to avoid appropriate waste treatment activities or significantly
delay treatment by reducing funding available to sites. In such a case,
these regulators are likely to oppose DOE's initiative. They told us
that they most likely would not be willing to renegotiate milestones in
the compliance agreements if doing so would lead to delays in the
cleanup program at their sites. In addition, these regulators said that
if DOE misses the milestones after reducing the funding at individual
sites, they would enforce the penalty provisions in the compliance
agreements.
The effect of compliance agreements on other aspects of DOE's
initiative, especially its proposal to reclassify waste into different
risk categories to increase disposal options, is also unclear. Some of
the proposed changes in waste treatment would signal major changes in
DOE assumptions about acceptable waste treatment and disposal options.
For example, one change would eliminate the need to vitrify at least 75
percent of the high-level waste, which could result in disposing of
more of the waste at DOE sites. In addition, DOE is considering the
possibility of reclassifying much of its high-level waste as low-level
mixed waste or transuranic waste based on the risk attributable to its
actual composition.11 However, at all four sites we visited,
regulators said that it is unclear how DOE's proposed initiatives will
be implemented, what technologies will be considered, and whether the
changes will result in reduced cost and accelerated cleanup while
adequately protecting human health and the environment.
---------------------------------------------------------------------------
\11\ Currently, DOE classifies this high-level waste based on the
treatment process that created the waste.
---------------------------------------------------------------------------
DOE generally did not seek input from site regulators or other
stakeholders when developing its latest initiative. DOE's review team
leader said that when the review team visited individual sites, the
team had not formulated its conclusions or recommendations and so did
not seek regulators' views. Furthermore, the team leader said that,
during the review, DOE was holding internal discussions about improving
ineffective cleanup processes, such as contracting procedures. To
include regulators on the review team during these discussions,
according to the team leader, could have created the impression that
the criticism of DOE processes came from the regulators rather than
from DOE and contractor staff. According to the Associate Deputy
Assistant Secretary for Planning and Budget, since the review team's
proposals were made public in February, DOE has held discussions with
regulators at all sites and headquarters about implementing the
proposals.
In summary, Mr. Chairman, DOE faces two main challenges in going
forward with its initiative. The first is following through on its plan
to develop and implement a risk-based method to prioritize its various
cleanup activities. Given past failed attempts to implement a risk-
based approach to cleanup, management leadership and resolve will be
needed to overcome the barriers encountered in past attempts. The
second challenge for DOE is following through on its plan to involve
regulators in site implementation plans. DOE generally did not involve
states and regulatory agencies in the development of its management
initiative. Regulators have expressed concerns about the lack of
specifics in the initiative, how implementation plans will be developed
at individual sites, and about proposals that may delay or
significantly alter cleanup strategies. Addressing both of these
challenges will be important to better ensure that DOE's latest
management initiative will achieve the desired results of accelerating
risk reduction and reducing cleanup costs.
Thank you, Mr. Chairman and Members of the Subcommittee. This
concludes my testimony. I will be happy to respond to any questions
that you may have.
Mr. Greenwood. Thank you, Ms. Jones.
The Chair recognizes himself for 10 minutes for questions,
and let me start with you, Ms. Roberson, if I may.
In order to measure whether a cleanup project has been
accelerated, a detailed cost and schedule baseline must already
be in place at the DOE site in order to accurately measure
schedule or cost improvement. Does DOE have a detailed cost and
schedule baseline in place for accelerating cleanup projects at
each of the large DOE sites, including at Oak Ridge and Los
Alamos?
Ms. Roberson. Mr. Chairman, the Department at this point is
going through a transition and putting into place the
accelerated cleanup plan. There are existing baselines at all
of the sites. The accelerated cleanup plans and our estimate of
their impact is based upon accelerating the work as defined in
those baselines.
The next step in our progress, which our sites are going
through now, is to put together the crosswalk from the existing
baseline to the accelerated cleanup plan. At that point we
would do a complete revised baseline to reflect that
accelerated cleanup plan. So our estimates of savings, both in
time and resources, is really based upon the path that we have
been on, but we do have more work to do that complete
crosswalk.
Mr. Greenwood. Thank you. Also for you, Ms. Roberson, as I
understand it, a State must sign a Letter of Intent with you to
accelerate high-risk projects, and then you will set aside
additional funds for cleanup at those sites.
The State of South Carolina recently signed a two-page
Letter of Intent and you committed to set aside $216 million in
additional cleanup funds next year for the Savannah River site.
That is a pretty good return. It is about $108 million for each
page of the agreement. Are these Letters of Intent a genuine
commitment from the States, and are you ready to withhold money
if the State refuses to make the necessary changes to
accelerate cleanup?
Ms. Roberson. Thank you, Mr. Chairman. First of all, let me
say that the details behind the Letters of Intent are pretty
extensive. The Performance Management Plan for the Savannah
River Site was already developed and undergoing public comment
by the time we signed the Letter of Intent, and it is fairly
thick. There are certainly many more details that support those
Letters of Intent. And the Letter of Intent is but one part of
the process, the next step is the demonstration of commitment
of the parties to accelerate the cleanup. The Performance
Management Plan details the specific actions. And for Savannah
River Site, that Performance Management Plan is undergoing its
final review and revision in cooperation with the regulators.
Again, I would say this is not just a paper process. We
have exerted tremendous energy and time and resources in
conjunction with our regulatory parties, to review in detail
what we are proposing to do. I myself spent a week at Savannah
River along with my counterpart in EPA and the head of the
Environment Department of South Carolina reviewing those
details and plans and looking each other in the eye to ensure
that each of us was committed to going forward. There is
tremendous detail behind the Letters of Intent. They are simply
the start of the process, but much more information is
available.
Mr. Greenwood. And with regard to the second part of my
question, are you ready to withhold money if the State later
refuses to make the necessary changes to accelerate cleanup?
Ms. Roberson. The administration has been clear. The
commitment for additional funds is based upon the acceleration
of the work, and I believe the Administration has been clear.
The funding is not to be released until the Performance
Management Plans document how that accelerated work will be
carried out.
Mr. Greenwood. As you know, DOE and the States can agree to
accelerate cleanup, but the contractors are the ones who
actually perform the cleanup work. Do you believe that DOE's
contractors will follow through and accelerate cleanup?
Ms. Roberson. I believe that DOE will follow through to
ensure that happened. I would like to attack all elements of
our business systems at the same time. The approach that we
have taken is to clearly define the work that we want done,
establish the performance measures that demonstrate we are
getting it done, and align our acquisition strategy to support
that.
Mr. Greenwood. Are you going to use performance-based
incentive contracting to ensure that contractors prioritize
cleanup consistent with these new cleanup plans?
Ms. Roberson. That will be our key acquisition strategy,
yes, sir.
Mr. Greenwood. Let me ask a question of Ms. Jones that just
occurred to me. What risk criteria or risk factors has the EM
program established and used to prioritize projects for
accelerated cleanup at the sites, at the different sites?
Ms. Jones. It is our understanding at this point, Mr.
Chairman, that those kinds of risk factors have not been put
together. We have been told that they are working on those, but
there is no strategy at this point in time.
What they are developing is, just as Secretary Roberson
said, site-specific management plans which are going to lay out
what the risks are, but those site-specific plans need to be
rolled up and DOE needs to look across the Nation in terms of
what the risk-based strategy should be.
Mr. Greenwood. Do you concur, Ms. Roberson?
Ms. Roberson. I do concur. I would add one element. The
Environmental Management program has utilized a risk ranking
system for how it assigned its resources in the past. I have
reviewed that system and it is still relevant. The difference
is that, it did the risk ranking, it did not follow through in
applying those resources based upon the results of the ranking.
And so that is the gap we have to fill and that is what we are
proceeding to do.
Mr. Greenwood. This is not on my official list of
questions, but how do you deal with political pressure if you,
based on risk, determine what the priorities should be and a
Member of Congress--House or Senate or Delegation--applies
pressure to alter that and ``put money in my project first,''
how do you deal with?
Ms. Roberson. Well, that is an interesting question.
Mr. Greenwood. That is why it wasn't on my list.
Ms. Roberson. Let me tell you how I would deal with it and
what experience I have had so far. I do find, just as with our
regulators--and I have certainly have had the opportunity to
spend time with many Members of Congress on this and the
specific activities in their States--and what I have found is,
given the opportunity to actually review and discuss where the
risks are and what the priorities should be and why it makes
sense, I truly have experienced tremendous support both from
the Congress and from the States.
Mr. Greenwood. We are educable.
Ms. Jones. Mr. Greenwood?
Mr. Greenwood. Yes?
Ms. Jones. Could I also mention I think your question also
leads to the point of why any risk-based strategy needs to be
extremely transparent particularly to the stakeholders. And I
think that DOE has to come forward with adequate documentation
of risk, a clear basis for classifying risk, and then also a
consistent scoring between sites, if you are going to have a
national strategy, and that must be very transparent to the
stakeholders.
Mr. Greenwood. I quite agree, and it does make it a lot
easier to resist any undue political pressure, if you have a
clearly delineated system.
Secretary Roberson, in the written testimony of Tennessee's
Oversight Program Director, Mr. John Owsley, he described a
contentious issue between DOE and Tennessee regarding shipments
of mixed waste out of Oak Ridge to the Waste Isolation Pilot
Plant. Mr. Owsley points out that DOE has recently changed its
mixed waste regulations and will not recognize Tennessee's
ability to enforce mixed waste shipment schedules to WIPP. Can
you explain the situation?
Ms. Roberson. Well, Mr. Chairman, I will not attempt to go
beyond what I know because I think this is a legal issue more
so than an operational issue. There is no disagreement that the
Department is obligated to dispose of transuranic waste at the
Oak Ridge Reservation, and we are committed to do that. There
is a legal issue as to whether that is legally regulated under
RCRA. So, it is a legal issue, not an operational issue.
Mr. Greenwood. Okay. Again, Ms. Roberson, according to the
GAO report, there are about 70 compliance agreements among the
DOE sites, and some DOE sites have multiple compliance
agreements. Why are there so many agreements, and why can't we
consolidate multiple agreements within the State?
Ms. Roberson. In some cases, I understand the history as to
why there are so many agreements. I won't venture to try to
explain that because it really ends up being a different set of
circumstances for different sites. In some cases, it is a lack
of performance on a commitment where the cleanup commitment has
ended up being captured in a court-ordered agreement.
What we are accomplishing in the accelerated cleanup
initiative, though, is integration of the work covered by those
agreements in almost every case that I am aware of, which I do
believe achieves the same result.
Mr. Greenwood. Do I see nodding, Ms. Jones, that you concur
with that?
Ms. Jones. Yes, I would agree that if the management plans
are going to integrate those compliance agreements, that would
be a really good step. And as Assistant Secretary Roberson
said, there are a number of reasons for this. Some compliance
agreements are looking at RCRA compliance, some are looking at
CERCLA compliance, and also, as she said, there are court-
ordered agreements. So there are a number of different reasons
why there are many different ones.
Mr. Greenwood. When you have multiple agreements at one
site, can they be consolidated?
Ms. Roberson. I would say not all agreements can physically
be consolidated, but the strategy as reflected by the
milestones and commitments in those agreements can be
integrated. I think it is very difficult to go back and try to
redo or remove a consent order. I don't know quite how to do
that, but what we have achieved in conjunction with our
regulators is integration of our commitments so that we don't
have conflicting requirements or conflicting commitments. They
all relate to a similar strategy.
Mr. Greenwood. Thank you very much. The Chair recognizes
the gentleman from Florida for 10 minutes.
Mr. Deutsch. Thank you, Mr. Chairman. If I can make a
unanimous consent request that members who are not here could
submit statements for the record.
Mr. Greenwood. Without objection.
Mr. Deutsch. Thank you, Mr. Chairman.
Ms. Jones, in your testimony, you seem to express some
skepticism about whether DOE will be able to overcome the
barriers encountered in the past to formalize a risk assessment
approach to cleanup. Would you describe those barriers?
Ms. Jones. I think one of the barriers that we identified
and others have identified in the past is that when it was
tried there wasn't adequate documentation. There really wasn't
a systematic approach to assessing risk either within a site or
across a site, and DOE didn't really use it as part of its
overall decisionmaking plan. I think there were also some
problems with stakeholder buy-in. So, those are the kinds of
things that I mentioned earlier that we need to make sure are
put in place as we move forward this time.
Mr. Deutsch. Are there any other--I mean, the focus?
Ms. Jones. I think those are the larger issues.
Mr. Deutsch. Okay. You mentioned that this new plan would
result in leaving more waste onsite and therefore reduce
cleanup cost. Have the States agreed to leave more waste
onsite?
Ms. Jones. The States at this point in time have agreed in
principle with these Letters of Intent, that the goal is to
accelerate cleanup, focus on a risk-based strategy, and to have
it cost less. I don't think the States or the regulators have
signed up to anything in terms of how they are going to
implement that, which would include leaving more waste on-site.
Mr. Deutsch. Ms. Roberson, do you want to respond?
Ms. Roberson. Well, I think I agree with Ms. Jones.
However, I would say that our goal isn't to leave more waste
onsite. When you look at the baseline plans that were in place,
there are a number of questions that the baselines had not
addressed that we are attempting to address now. So, to some
degree, the representation that we are proposing to leave more
waste onsite, I simply disagree with. We are focused on going
to the end so we know what we have to deal with.
Mr. Deutsch. Ms. Jones, you mentioned that DOE intends to
reclassify waste into different categories so that you have
more treatment options. Should we assume this means a lesser
standard of treatment?
Ms. Jones. I don't believe so, Mr. Deutsch. I think those
details are to be worked out. I think what DOE is talking about
is that currently they classify waste based on how it was
produced, not based on what the constituents actually are, and
they are relooking at that approach. I think that DOE would
still intend to stay within RCRA or CERCLA law in deciding what
they need to do with this waste.
Mr. Deutsch. Would it revise the compliance agreements with
the State?
Ms. Jones. Excuse me, sir?
Mr. Deutsch. Would it revise the compliance agreements with
the----
Ms. Jones. Would it require revisions to----
Mr. Deutsch. Correct, revise them.
Ms. Jones. At this point in time it is a little too early
to tell, but I think it would generate the need to revise
compliance agreements if, in fact, the approach or the
technology was going to be different. That might impact the
milestones, it might impact the activities that they were going
to be going forward with.
Mr. Deutsch. Ms. Roberson, do you want to respond?
Ms. Roberson. I would appreciate the opportunity.
Mr. Deutsch. Go ahead.
Ms. Roberson. I think the compliance agreement mostly
focused on this subject is the Tri-Party Agreement in
Washington State. If I can take just a minute to explain the
structure of that agreement.
The Tri-Party Agreement establishes a three-tier tank waste
retrieval process. The first step is to retrieve as much waste
per tank as technically possible. The second step is to compare
the retrieval result for each tank to the Tri-Party Agreement
goal of 99-percent removal. The third step is if less than 99
percent retrieval can be technically achieved, the Tri-Party
Agreement contains a process by which DOE may request an
alternative end-point for that tank. And the State is a party
to that process. That is captured in our Tri-Party Agreement.
Mr. Deutsch. In theory, Ms. Roberson, many of your ideas
about prioritizing site cleanups based on the level of risk
posed by a particular site makes sense. However, it has been
our experience in the past that no site and no Member of
Congress representing that site wants to lose annual cleanup
dollars to another site that DOE decides presents more risk.
The only solution seems to be adding more dollars to the
critical sites, not detracting from the less critical sites. Is
DOE willing to add substantial dollars to accomplish this task?
Ms. Roberson. I believe DOE has demonstrated in its request
that it is committed to do so, where the risk is commensurate
with that need.
Mr. Deutsch. Approximately how much will that be?
Ms. Roberson. That is dependent upon the risk associated
with each site.
Mr. Deutsch. So there is no dollar amount at this point?
Ms. Roberson. I couldn't quote you a dollar. I can
certainly provide you details for the record.
[The following was received for the record:]
funds associated with risk at sites
Under the approach being taken by the Department, signed Letters of
Intent between the Department and both Federal and State regulators are
being developed and executed that articulate the vision, principles,
collaborative work anticipated, and the parties' commitment to achieve
accelerated cleanup and risk reduction. To date, we have signed eight
Letters of Intent with the appropriate State and Federal regulators for
ten sites. The sites and proposed corresponding additional funding set
aside are: Hanford Site, Washington $433M; Savannah River Site, South
Carolina $216M; Idaho National Engineering and Environmental
Laboratory, Idaho $110M; Oak Ridge Reservation, Tennessee $105M; Los
Alamos National Laboratory, New Mexico $54M; Nevada Test Site, Nevada
$33M; Sandia National Laboratory, New Mexico $8M; Waste Isolation Pilot
Plant, New Mexico $14M; Pantex Plant, Texas $5M; and Amchitka Site,
Alaska $2M.
Additional Letters of Intent are in process. Funds will be set
aside upon completion of the process at these additional sites.
The Department has prepared Performance Management Plans that
delineate the time-lines, strategies, and funding profiles to
demonstrate how DOE will achieve accelerated cleanup and risk
reduction. Performance Management Plans endorsed by the regulators,
must be in place before cleanup reform account funds are made
available.
Mr. Deutsch. GAO's report, though, has told us that an
additional $300 million will come partially from reduction from
individual site funding. How much of the additional $300
million is actually new money?
Ms. Roberson. I'm sorry, I thought your question was by
site. Well, the $300 million is totally new money, but let me
say also that we have----
Mr. Deutsch. Go ahead, I am sorry.
Ms. Roberson. There is additional money within the base
budget for Environmental Management that is also going to
cleanup that was not going to cleanup previously. We have
identified activities that we, for instance, in Headquarters,
did not need to continue to carry out because the activities
did not directly support cleanup.
Mr. Deutsch. Can you try to clarify just for a second, is
that new money or is it money from a reduction in the
individual site funding? Ms. Jones? Can we just try to clarify
that? Is it new money or is it just reduction money, the $300
million number?
Ms. Jones. I think that--and, Ms. Roberson, correct me if I
am wrong--I believe that a portion of that is new money and a
portion of that is a reduction across-the-board.
Mr. Deutsch. Do we know what percentage?
Ms. Roberson. Let me check with staff, just a moment, Mr.
Deutsch. Maybe I can clarify that, sir. The $300 million is new
money.
Mr. Deutsch. Right, but I guess the GAO has told us that it
comes partially from a reduction in individual site funding.
Ms. Jones?
Ms. Jones. Mr. Deutsch, I apologize, we will have to
provide that number for the record.
[The following was received for the record:]
DOE's environmental management funding request for fiscal year 2003
included a $5.9 billion base amount and a $0.8 billion cleanup reform
appropriation (set-aside) amount. The total of those amounts is $6.7
billion, which is equal to DOE's fiscal year 2002 environmental
management budget authority. Therefore, the $0.8 billion set-aside
proposed for fiscal year 2003 can be viewed as coming from a reduction
in site funding levels when compared to fiscal year 2002 funding
levels. The $300 million in additional environmental management funding
that the Administration is now prepared to support for fiscal year 2003
would be funding above the amount provided in fiscal year 2002.
Mr. Deutsch. The increase--I guess if we are talking about
$300 million, this is an increase of about 2 percent or so to
the total cleanup budget. Is that sufficient, in the $300
million number, do we know at this point or are we still in the
dark? The $300 million number.
Ms. Roberson. Is that sufficient for what?
Mr. Deutsch. For the cleanup that we are looking at in
terms of using the risk assessment, and it is a 2 percent
accelerated cleanup.
Ms. Roberson. Let me, sir, explain. There are three
elements to our budget. There is a $5.9 billion base budget
which is a maintenance and a compliance budget. There is $800
million in the initial request for the accelerated cleanup
account. And then $300 million requested in a budget amendment,
for a total of $1.1 billion for accelerated cleanup. So there
is an increase--I believe what the GAO was citing was the
difference between the base budget and the accelerated account.
Some portion of that, based upon spending from previous years,
appears to be old money, but in our accelerated cleanup plan we
have gone even into the base budget to re-evaluate how we are
spending and what is the reasonable distribution of those
funds. So, we did not just look at $300 million, we did not
just look at $1.1 billion, we looked at the entire budget
proposed for Environmental Management.
Ms. Jones. And if your question, Mr. Deutsch, is this
enough funding to accelerate the cleanup that we are looking
at, I think the way the Department is looking at it, the way we
are looking at it, this is an incentive for the States, the
regulators, to sign up for accelerated cleanup. There are a lot
of activities that will be done with this money. Whether there
could be more activities if there were more money, I think we
would have to look at those individual sites.
Mr. Deutsch. Let me ask one final question. Ms. Roberson,
one of the tenets of good management is that you consult with
your stakeholders before making changes. Could you just
describe the consultation with the State and Federal regulators
before announcing the plan, and our understanding is they
aren't particularly happy with it at this point in time.
Ms. Roberson. I will probably not speak for them since you
have a panel. When the Top-to-Bottom review was released, there
was a tremendous amount of consternation. It was released in
conjunction with the budget, which probably complicated it even
further.
The Secretary announced last spring that the top-to-bottom
review was going to be undertaken. The team that conducted the
review visited sites--it wasn't conducted in Washington, DC.
The reviews was based upon data, information, discussions with
those people carrying out the work. We released a report that
said these are principles and strategic issues concerning the
way the program is carried out. We believe that was our
obligation to do in managing the program.
How you implement those concerns has been conducted in
conjunction with our State and regulators and the public. The
Performance Management Plan that contains the details of the
activity that support accelerated cleanup have been the subject
of public meetings, public comment. I think we have had very
much a public process as a part of this program.
Mr. Deutsch. Thank you.
Mr. Greenwood. The Chair thanks the gentleman, and would
ask unanimous consent to incorporate into the record a
collection of Letters of Intent with the various States.
Without objection, they will be incorporated into the record.
[The documents follow.]
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Mr. Greenwood. The gentleman from Kentucky, Mr. Whitfield,
is recognized for 10 minutes for inquiry.
Mr. Whitfield. Thank you very much. Ms. Roberson, let me
just summarize what I understand is correct here so far. The
base budget, which includes compliance and maintenance, $5.9
billion, and an additional $800 million for accelerated
cleanup, and then a supplemental $300 million added to that, so
$1.1 billion for accelerated cleanup.
Ms. Roberson. Yes, sir.
Mr. Whitfield. Okay. Now, in the GAO report, they indicated
that there were 70 compliance agreements at 23 sites right now,
is that correct?
Ms. Roberson. Yes.
Mr. Whitfield. Now, how many of those sites would be
eligible for the accelerated cleanup? Would all of them be
eligible?
Ms. Roberson. All sites are eligible.
Mr. Whitfield. All sites are eligible. And at this point,
six sites have signed Letters of Intent. And then you said
after the Letters of Intent, then there would be a Performance
Management Plan for each site based on the accelerated plan.
And how long have you all been negotiating with States to enter
into accelerated cleanup plans?
Ms. Roberson. With the exception of Washington State, where
those discussions started in the fall of last year, with most
other States, started decisions early in the beginning of this
fiscal year.
Mr. Whitfield. And the August 1 deadline was set at the
very beginning so that everyone would have advance knowledge
that this is the deadline?
Ms. Roberson. I would have to say we did not set an August
1 deadline originally. The program was rolled out with the
budget in February of this year. We had already begun working
at most of the sites, to ensure that we were able to achieve as
much as possible. For implementation in fiscal year 2003, the
Administration did subsequently establish a timeframe of August
1.
Mr. Whitfield. Now, I am assuming that if all 23 sites
signed up, that there would not be sufficient money to do the
accelerated cleanup. Is that correct or not?
Ms. Roberson. We believe there would be, and that is what
our request is based on. Again, there is not a site where we do
not have either a proposed strategy or the elements of a
proposed strategy upon which to make that determination.
Mr. Whitfield. Now, who is negotiating with the State of
Kentucky on the Paducah site?
Ms. Roberson. By name, our new Site Manager, Bill Murphie,
is representing the Department. The authority for the State of
Kentucky for Environmental Protection, Gen. Bickford, is the
representative for the State, and then Regional Administrator
Palmer for EPA. Those are the three individuals that conduct
the formal negotiations.
Mr. Whitfield. Okay. Now, I know that the community of
Paducah where this site is located, the elected officials, the
civic officials, everyone else, are quite excited about having
the opportunity to accelerate the cleanup, and they have gone
to Frankfort and they have lobbied that the State enter into
this Letter of Intent, and so far that has not been
accomplished. Do you have any idea yourself on precisely what
is the hangup here, or what the problem is?
Ms. Roberson. Well, Congressman Whitfield, each site
presents its own unique set of challenges, and we certainly
have a unique set of challenges at Paducah. We have invested
tremendous resources and time in this negotiation, and I would
have to say the other parties have been at the table with us. I
think that we are very close to an agreement.
What we found at Paducah, and Paducah is not the only
State, is in some cases the parties would actually like to
discuss the details of the plan before there is an agreement in
principle on the strategy. And so there are Letters of Intent
at some of the sites that are lagging behind the development of
a Performance Management Plan, and this would be one of those
sites.
Mr. Whitfield. Okay. But there is no Letter of Intent?
Ms. Roberson. There is no Letter of Intent. I think we are
very close, though.
Mr. Whitfield. So what you are saying is, in Kentucky, like
a lot of other sites, before the Letter of Intent is even
signed, you are already kind of getting into a Performance
Management Plan of how it would be done.
Ms. Roberson. Exactly.
Mr. Whitfield. Which is sort of putting the cart before the
horse, but--and I am assuming--would they be doing that because
there may be a lack of confidence that things will be done the
way they hope they will be done?
Ms. Roberson. I think you are absolutely right.
Mr. Whitfield. Okay. Now, do you have any idea on what the
exact amount of money that it would take to take care of the
Paducah problem?
Ms. Roberson. At this point, I would say I do not, sir,
because we still have a number of issues regarding the specific
path for subprojects at that site.
Mr. Whitfield. Okay. Now, Mr. Deutsch indicated that under
these plans, there is a possibility of leaving more waste
onsite under the accelerated plan than would be left under the
original plan, and you have indicated that is certainly not the
intent, is that correct?
Ms. Roberson. That is certainly not the intent, and I would
further say I believe that there may have been expectations,
what we are proposing is to do a risk-based cleanup which is
appropriate for the cleanup problems that we are attempting to
address, and that there is not an overt attempt to leave waste
in place. The goal is to do a risk-based cleanup that is
protective of human health and the environment in every case.
Mr. Whitfield. Now, on the Kentucky site, as they are
negotiating to develop a performance plan before the Letter of
Intent, could you give me one or two areas that seem to be
particularly hangup areas?
Ms. Roberson. A couple of areas that are hangups--one
procedural area that we are continuing to negotiate over is the
application of removal authority for cleanup. DOE, in
establishing the cleanup agreement, agreed to a process, and
DOE is a party to the cleanup agreement. We believe that we now
have experience to say that it hasn't worked as well for any of
the parties or the communities around the site, and we are in
discussions with the regulators to modify that process in the
cleanup agreement.
There are other issues that are physical cleanup issues
regarding the use of the landfill at that site, what materials
may or may not go in. Those would be two real examples.
Mr. Whitfield. Okay. So, what can you bury at the landsite,
onsite, and then what is the removal authority?
Ms. Roberson. Right, should there be modification to that
removal authority process in the cleanup agreement.
Mr. Whitfield. What sort of modification?
Ms. Roberson. Well, this is obviously in negotiation, so
you would only hear my view. My view is what we are seeking is
the ability to implement removal authority as deemed necessary,
and limit the procedural process before that. So, we would want
to limit the amount of process necessary before taking a
removal action.
Mr. Whitfield. So to expedite.
Ms. Roberson. Exactly.
Mr. Whitfield. And the State--I know you are not speaking
for them, but obviously they don't want to expedite, or don't
feel comfortable with expediting.
Ms. Roberson. Well, I would venture--to go back to your
statement earlier, I believe their concern is whether they can
trust us to undertake removal actions in their view, safely. We
believe we can be trusted, but it is our job to convince the
parties that we can.
Mr. Whitfield. Now, there has never been any legal action
between the State or EPA and DOE at the Paducah site, has
there?
Ms. Roberson. There are lots of legal action. Yes, sir.
That is again a complication in this.
Mr. Whitfield. Okay. So, there are other existing judgments
out there already----
Ms. Roberson. Well----
Mr. Whitfield. [continuing] or injunctions, or whatever?
Ms. Roberson. Particular to the cleanup, there are a number
of issues regarding milestones in the current cleanup framework
that are in dispute, which is what I would call a legal matter.
Mr. Whitfield. So, using your little crystal ball, what
would you say the percentages are that you would reach an
agreement with the State of Kentucky? Would there be an 8-out-
of-10 chance, or 1-out-of-10?
Ms. Roberson. Congressman Whitfield, my crystal ball has
failed in these things. I think that we will get there. I see a
commitment to do so, but it is hard work. I believe that we can
get there.
Mr. Whitfield. Good. Thank you.
Mr. Greenwood. The Chair thanks the gentleman, and thanks
the witnesses, and excuses the witnesses. Thank you.
I would call forth the second panel. Our witnesses are Mr.
Michael Wilson, who is the Program Manager for the Nuclear and
Mixed Waste Program for Washington State Department of Ecology;
Ms. Kathleen Trever, Coordinator and Manager of the INEEL
Oversight Program from the State of Idaho, and Mr. John Owsley,
the Director of the Department of Energy Oversight Division,
Tennessee Department of Energy and Conservation.
We welcome our witnesses. Thank you for joining us here
today. You probably heard me mention to the other witnesses
that we are holding an investigative hearing, and it is our
custom and practice to take testimony under oath. Do any of you
object to giving your testimony under oath?
[Noes.]
Mr. Greenwood. I need to advise you that pursuant to the
rules of this subcommittee as well as the rules of the House
that you are entitled to be represented by legal counsel. Do
any of you wish to be advised by counsel?
[Noes.]
Mr. Greenwood. If you would rise and raise your right hand.
[Witnesses sworn.]
Mr. Greenwood. You are under oath and, Mr. Wilson, we will
begin with you. You are recognized for 5 minutes.
TESTIMONY OF MICHAEL WILSON, PROGRAM MANAGER, NUCLEAR AND MIXED
WASTE PROGRAM, WASHINGTON STATE DEPARTMENT OF ECOLOGY; KATHLEEN
E. TREVER, COORDINATOR/MANAGER, INEEL OVERSIGHT PROGRAM, STATE
OF IDAHO; AND JOHN A. OWSLEY, DIRECTOR, DEPARTMENT OF ENERGY
OVERSIGHT DIVISION, TENNESSEE DEPARTMENT OF ENERGY AND
CONSERVATION
Mr. Wilson. Good morning, Mr. Chairman and members of the
committee. Thank you for this opportunity to testify today. My
name is Mike Wilson and I manage the Nuclear Waste Program for
the State of Washington Department of Ecology. That is the
State of Washington's umbrella Environmental Protection Agency,
and I have been in that role for about 7 years now.
The Tri-Party Agreement is at a crossroads. At Hanford,
much of the preparatory work and planning called for in the
original document is done. It is now time to adopt schedules
for final accelerated cleanup of the nine production reactors,
several massive plutonium production facilities, and 54 million
gallons of highly radioactive waste in aging underground
storage tanks.
In the late 1980's, Hanford was emerging from secrecy,
self-regulation, and an emphasis on production over human and
environmental health and safety. The Department of Energy had
not been honest about the hazards at Hanford. It would have
been grossly negligent for the State of Washington not to
enforce its laws and regulations to protect human health and
the environment.
Signing the Tri-Party Agreement in 1989 between the States,
EPA and Energy to guide the cleanup was a major achievement. It
was a mutual decision to work together rather than to fight and
to spend money to fix problems rather than in court. At its
core, the TPA gives the Department of Energy time to come into
compliance with environmental laws. We realized that the site
was so grossly out of compliance with several laws that there
was no hope for a timely fix and that rigorous enforcement
would achieve nothing.
The TPA brought flexibility to an otherwise rigid
regulatory scheme, but the TPA holds Energy accountable for the
cleanup of Hanford and responsible for compliance with State
environmental laws. Just like any other business or industry in
the State, compliance is not discretionary.
Early on, the TPA did contain many milestones for plans and
reports, not concrete cleanup. We didn't force rigid compliance
dates on Energy when we didn't know how we were going to fix a
problem or how long it would take. We admit it, we didn't know
everything in 1989.
As we gained knowledge, we made changes, and so the TPA has
been changed over 300 times since 1989. Only once have we been
forced to issue a penalty for missing a milestone, and it was a
big one for us--failure to start construction of the Tank Waste
Treatment Plant last year. We reserved the ``big hammer'' for a
big issue, and it was absolutely appropriate.
In the end, we will probably not collect a single dollar of
that penalty because we accomplished our goal. Energy got back
on schedule to meet the 2007 date of operation for that plant.
Collecting fines is not what we are about, we are about getting
cleanup done.
I would like to shift gears just a little and talk about
our perspective on the plan to accelerate cleanup in Hanford.
In the 13 years since signing the Tri-Party Agreement, we have
had four Presidents, six Secretaries of Energy, and many
Assistant Secretaries in Washington, DC, as well as several
management teams at the Hanford site. With each change, there
has been one constant--the initial assumption that oppressive
regulation under the Tri-Party Agreement has constrained
progress at Hanford. At least three times in the last 10 years,
we have invested significant time working with the Department
of Energy developing working relationships and educating them
on the flexibility of the State of Washington and the Tri-Party
Agreement. In each case, I believe the Department of Energy
leadership has left with an appreciation of our reasonable and
pragmatic approach and the flexibility of the Tri-Party
Agreement.
Last summer, long before the official Headquarters approach
to acceleration was in place, the State, EPA and the Hanford
Site Managers engaged in a collaborative process to speed
cleanup. Top management met several times and agreed on common
principles and goals. Later, we negotiated new TPA milestones
that support accelerated cleanup for much of the site. We were
well along the course toward accelerated cleanup when the 2003
budget and accelerated cleanup account were announced this
spring.
At Hanford, changes to the Tri-Party Agreement that came
out of this collaborative process drove our response to
Energy's accelerated cleanup plan, not the reverse. We have not
given up anything in the form of reduced cleanup, nor do we
intend to, nor were we ``blackmailed'' into negotiating away
the Tri-Party Agreement on the promise of additional funds. At
the same time, I think we were able to show the new
Administration--especially Assistant Secretary Roberson--that
the regulators and our agreement are flexible, but within clear
limits.
We believe there can be smarter cleanup, more cost-
effective cleanup, and accelerated cleanup within the terms of
our agreement, but there cannot be--and what we will not
accept--is less cleanup. Less cleanup is not accelerated
cleanup, it is just less cleanup.
Contamination left in the soil and groundwater under
Hanford will remain a threat to the health of the people of the
Northwest for hundreds, even thousands, of years. We will
continue our vigilance, and we believe our Tri-Party Agreement
provides the best framework for that vigilance. Thank you, Mr.
Chairman. I will be happy to answer questions.
[The prepared statement of Michael Wilson follows:]
Prepared Statement of Mike Wilson, Nuclear Waste Program Manager,
Washington State Department of Ecology
Good morning Mr. Chairman and Members of the Committee. Thank you
for this opportunity to testify today.
The Tri-Party Agreement is at a crossroads. Much of the preparatory
work and planning called for in the original document is done. It is
now time to adopt schedules for final, accelerated cleanup of the
Columbia River Corridor, site of the nine production reactors; the
Central Plateau where several massive Plutonium production facilities
were located; and retrieval and treatment of the 54 million gallons of
highly radioactive waste in Hanford's 177 aging underground storage
tanks. I89History:
Let me set the context for the Hanford Tri-Party Agreement.
In the late 1980s, the Department of Energy's nuclear facilities,
including Hanford, were just emerging from a long history of secrecy,
self-regulation, and an emphasis on production over worker, public and
environmental health and safety. There was ample evidence that the
Department and its predecessor agencies had not been honest about the
hazards at Hanford, and that the cultural shift from the production-in-
secrecy mode to environmental cleanup would not be easy. It would have
been grossly negligent for the State of Washington not to have moved to
enforce its laws and regulations to protect public health and the
environment.
In this context, the 1989 signing of the Tri-Party Agreement
between the State, EPA and Energy to guide this change and the cleanup
was a major achievement--the nation's first Department of Energy
complex regulatory agreement.
It was a mutual decision to work together rather than fight, and to
spend money on fixing the problem not in court. We made the right
choices in 1989. Since then the TPA has served both the people of the
Northwest and the federal government well.
At its core the TPA gives the Department of Energy time to bring
Hanford into compliance with basic environmental laws. We realized that
the site was grossly out of compliance with the requirements of several
laws with no hope for a timely fix and that rigorous enforcement would
achieve nothing. The whole purpose of the TPA was to bring flexibility
to an otherwise rigid regulatory scheme.
Beyond that our three basic goals for the TPA were: Bring current
waste management practices up to present-day environmental standards;
safely treat and dispose of hazardous wastes and contaminated
facilities; and clean up areas where past practices spread
contamination in the environment.
But the TPA has a broader role, too. We think of it as a contract
with the people of Northwest that Hanford will be cleaned up. It is
also a primary portal for those same northwesterners to influence
priorities, end points and the balance of risk and cost at the site.
Early on, the TPA did contain many milestones for plans and
reports--not concrete cleanup. It reflected the fact that we didn't
know everything in 1989. We didn't force rigid compliance dates on
Energy when we didn't know exactly how we were going to fix a problem
or how long it would take. We knew we had to be flexible on both sides
in order to be successful. And so the TPA has been changed over 300
times since 1989. Nearly all of those changes have given Energy more
time to accomplish the cleanup goal--something that has been pointed
out to us by our stakeholders.
We have used the dispute process outlined in the TPA many times
also, and in most cases we have reached agreement. Only once have we
been forced to issue a penalty for missing a milestone--and it was a
big one for us--failure to start construction of the tank waste
treatment plant last year. We reserved the big hammer for a big issue
and it was absolutely appropriate. In the end we will probably not
collect a single dollar of the penalty because we accomplished our
goal: Energy got back on schedule to meet the 2007 start of operations
milestone in the TPA. We're not about collecting fines. We're about
getting cleanup done.
The TPA has kept us out of much more trouble than it has created. A
vision of what the world might have looked like without the TPA is the
result of Energy failing to pump liquids from the old single shelled
underground tanks on time. We took the issue to federal court when it
looked like the TPA would not do the job. We wasted countless hours of
technical staff time and costly attorney time in getting to a court
filed agreement. It's a good agreement and one that Energy has been
careful to honor. But the burdensome process, the inflexibility of the
result and the cost in time lost to productive cleanup should tell us
this is not the way to go.
I'd like to reiterate and leave you with two points to remember on
the Tri-Party Agreement: First, it has been very flexible and dynamic,
constantly adjusting to new technologies and information gained from
experience.
And second, the Tri-Party Agreement is a device designed to give
the Department of Energy extra time to come into compliance with
federal and state laws. But Energy will be held accountable for the
cleanup of Hanford and responsible for compliance with state
environmental laws, just like other businesses or industries in the
state. Compliance is not discretionary.
plans for acceleration:
I'd like to shift gears a little and talk about our perspective on
and involvement in the plan to accelerate cleanup at Hanford.
In the 13 years since signing the Tri-Party Agreement, we've had
four presidents, six Secretaries of Energy and many Assistant
Secretaries in Washington D.C. We've also had several management teams
at the Hanford site. With each change there has been one constant: the
initial assumption that oppressive regulation under the Tri-Party
Agreement has constrained progress and, in fact, was a primary reason
for the slow progress at Hanford.
At least three times in the last ten years we have invested
significant time in working with the Department of Energy, developing
working relationships and educating them on the flexibility of the
State of Washington and the document that has served us so well--the
Tri-Party Agreement.
In each case, I believe, the Department of Energy leadership has
left with an appreciation for our reasonable and pragmatic approach and
the flexibility of the TPA.
So when one of the first things we saw from Secretary Abraham was a
letter to Governor Locke pointing to the need to re-look at ``old
inflexible agreements'' our initial reaction, coming from a cynicism
developed over the years, was ``Here we go again . . .''
Last year, long before the Department of Energy headquarters driven
approach to acceleration was in place, the State of Washington, the
Environmental Protection Agency and both the Richland Operations Office
and the Office of River Protection engaged in a process to speed
cleanup. The Cleanup Constraints and Challenges process--or ``C3T''--is
a mutual attempt to accelerate cleanup and bring site budgets, work
plans and contracts into alignment under the Tri-Party Agreement.
Our caveats on entering this process were that there must be a
rededication to the TPA as the document guiding the Hanford cleanup AND
that there would be no lessening of cleanup standards.
Starting last summer the top management of the three parties and
site contractors met several times and agreed on common principles and
goals. Applying those principles, we negotiated new TPA milestones
throughout the fall and winter. We agreed to TPA changes that support
accelerated cleanup along the Columbia River and on the Central
Plateau. Separately, we also reached agreement on new milestones for
constructing the Tank Waste Vitrification Plant. A substantial portion
of the Tri-Party agreement was in play during that time.
We were well along a course toward accelerated cleanup when the
2003 budget and ``accelerated cleanup account'' were announced this
spring. So, once the ``official'' accelerated planning process started
we were able to quickly develop our ``Letter of Intent'' pledging to
pursue several approaches to time and cost saving and began working
with Energy on its Performance Management Plan.
In the case of Hanford the changes to the TPA that came out of our
collaborative process drove the content of our Letter of Intent and
much of the site Performance Management Plan--not the reverse. We have
not given anything up in the form of reduced cleanup, nor do we intend
to. Nor were we blackmailed into negotiating away the Tri-Party
Agreement on the promise of additional cleanup funds. Funding or not,
we expect Energy to meet its new TPA commitments.
At the same, time I think we were able to show the new
administration, especially Assistant Secretary Roberson, that the
regulators and our agreement are flexible--but within clear limits.
additional issues:
There are many details yet to be worked out in this continuing
story. Two examples:
On Tank Waste Retrieval: Reclassifying the tank waste and simply
leaving it in place will be a major issue for us--we are not there at
all. We have Tri-Party Agreement requirements that speak to retrieving
waste from the tanks. The Department of Energy has agreed to conform to
those requirements and use the TPA process. That commitment is included
in the Performance Management Plan. But the proof of that process is
yet to come. We expect that Energy will attempt to get at least 99% of
the waste from each of the Hanford tanks per the TPA requirements.
On Tank Waste Treatment: There has been a great deal of skepticism
about Energy's commitment to build the Tank Waste Vitrification Plant
and to vitrify the tank waste. I'm extremely pleased at the start of
construction of the vitrification plant this past week. This is a great
event for all of us. Energy has talked about using other technologies
to treat some of the tank waste. We are not opposed to exploring
supplemental technologies that meet disposal and stability standards
and speed waste treatment. We have agreed to take part in that
exploration as long as the vitrification plant proceeds according to
current plan. This is no time to once again change horses.
We believe there can be smarter cleanup, more cost-effective
cleanup, and accelerated cleanup within the terms of our agreement.
What there cannot be--and what we cannot accept--is less cleanup. Less
cleanup is not accelerated cleanup--it's just less cleanup.
Contamination left in the soil and groundwater under Hanford will
remain a threat to the Columbia River and health of the people of the
Northwest for hundreds, even thousands of years. We will be vigilant in
protecting both the people and the River. And we believe our Tri-Party
Agreement provides the best framework for our vigilance.
Thank you, Mr. Chairman and members of the committee for this
opportunity to speak to you today.
Mr. Greenwood. Thank you, Mr. Wilson.
Ms. Trever, you are recognized for 5 minutes.
TESTIMONY OF KATHLEEN E. TREVER
Ms. Trever. Thank you, Mr. Chairman. I appreciate the
opportunity to share the State of Idaho's perspective with you
today.
The INEEL played a key part in winning the cold war and
advancing the use of nuclear power. While we encourage the
continued use of these valuable capabilities, we also expect
the Federal Government to address the sites environmental
liabilities. Those liabilities include considerable quantities
of spent nuclear fuel and plutonium-contaminated waste brought
from other sites to Idaho for temporary storage, as well as
contamination from activities on the site.
For more than 30 years, Idaho has worked to ensure DOE
addresses these environmental liabilities to protect the
State's major aquifer, a key water supply for drinking and
agricultural uses, as well as other parts of Idaho's
environment.
When faced with DOE's poor track record in honoring its
cleanup promises and its lack of credibility, Idaho sought
firmer commitments back in the 1980's and through the 1990's.
When other options have not produced results, we have gone to
court and used enforcement tools to protect our citizens. We
prefer, however, to see our resources directed to actual
cleanup instead of legal and administrative costs. That is why
we have sought to negotiate mutually acceptable agreements to
bring INEEL into compliance with environmental standards and
fulfill its long-standing promises for treatment and removal of
waste from Idaho. These agreements have fostered considerable
progress, and they have provided a public forum for discussion
of cleanup.
The State and its regulatory agencies have worked with DOE
to support innovative approaches and common-sense cleanup
requirements, changing our agreements and restructuring
activities, as appropriate, to achieve tangible results.
We have encountered some problems, however, as you noted in
your opening statement, such as the Pit 9 project for
demonstrating technology for buried waste retrieval. As DOE's
own Top-to-Bottom assessment realized, these problems often
stem from overly simplistic assumptions, DOE's internal project
management, or a lack of clear focus on tangible results.
Tough cleanup problems remain, and we cannot make them
magically disappear or indefinitely postpone our efforts to
solve them. The costs, financial and otherwise, will only go
up. We need a solid investment strategy for reducing
uncertainties in moving forward.
We are now involved in DOE's efforts to develop Performance
Management plans to accelerate INEEL cleanup within the
framework of existing compliance agreements.
The collective desire of Congress, DOE, and States housing
DOE facilities for sooner, safer, and more efficient cleanup is
not new, it is one we strongly support, but there are certain
steps essential to our success. We need dependable, sufficient
funding, focused management attention, sound investments in
science and technology, and improved public confidence in the
cleanup process. While it is healthy to set aggressive goals
for completing cleanup, we must not fool ourselves with
creative accounting practices or simplistic assumptions.
Earlier DOE cleanup plans reduced environmental liabilities
and risks on paper, but eroded confidence in them when rosy
forecasts did not prove out. We are working with DOE to provide
a realistic assessment of the nature and extent of the problems
to be solved.
In our quest to reduce scheduling costs, we must still
present investors in cleanup a clear understanding of
programmatic risks, whether they involve unproven technology,
regulatory assumptions, repository availability, decisions at
other sites, or public challenge. We must also clearly define
parameters for success that can remain consistent from one
Administration to the next.
For acceleration initiatives to succeed, DOE will have to
address interdependencies among sites. Idaho and other States,
like my two colleagues here, have offered to serve as catalysts
for collective discussions with sites through the National
Governors Association's DOE Task Force.
Some reform proposals involve transferring materials or
responsibilities to other Federal programs, so plans should
recognize where costs are truly saved versus shifted elsewhere.
Idaho is committed to ensure INEEL cleanup is accelerated
in a way that is compatible with the Department's larger
mission objectives, and DOE has agreed to develop a strategy
for making sure this occurs.
In closing, Idaho remains committed to meeting our cleanup
goals for the INEEL as efficiently as possible, while ensuring
we preserve the Laboratory's capabilities. We are all investors
in successful cleanup. To succeed, we will need more than
general pronouncements of schedule and cost savings. We will
have to evaluate our problems, recognize uncertainties, and
determine how to get the maximum return on investment,
accelerated cleanup and reduce risks. Thank you, Mr. Chairman.
[The prepared statement of Kathleen E. Trever follows:]
Prepared Statement of Kathleen E. Trever, Administrator, State of Idaho
INEEL Oversight Program
Mr. Chairman and members of the Subcommittee, I appreciate the
opportunity today to share with you the State of Idaho's perspective on
the Department of Energy's (DOE) initiative for accelerating cleanup of
the Idaho National Engineering and Environmental Laboratory (INEEL) and
related state-based compliance agreements.
My name is Kathleen Trever, and I manage the state of Idaho's
program that monitors DOE activities in Idaho. I have been involved in
issues related to the cleanup of the INEEL for over eight years.
overview of the state's perspective on the ineel
The INEEL, one of DOE's major facilities, occupies land in eastern
Idaho about the size of Rhode Island. Only 3% of the site's 890 square
miles are used, resulting in a huge buffer zone, making the site an
ideal place for developing and testing nuclear reactors.
The INEEL played a key part in winning the Cold War, developing a
strong nuclear navy, and advancing the commercial use of nuclear power.
While we encourage the continued use of the lab's valuable assets, we
also expect the federal government to address the site's environmental
liabilities.
environmental challenges ineel faces
Those liabilities include considerable quantities of spent nuclear
fuel and plutonium-contaminated waste brought from other sites to Idaho
for ``temporary'' storage, as well as contamination from on-site
activities.
The damaged core from the Three Mile Island reactor, brought to the
INEEL, so the nation's leading nuclear scientists could determine what
went wrong and how to prevent similar incidents from occurring, remains
stored in Idaho. Spent fuel from the nuclear naval fleet and other
programs and locations is also at the INEEL waiting for a permanent
solution.
Tens of thousands of barrels of plutonium-contaminated waste
generated by the Rocky Flats Weapons site in Colorado and other
facilities came to Idaho for decades. This waste, largely generated at
other sites and stored at the INEEL, makes INEEL the largest stockpile
of plutonium-contaminated waste in the nation, and perhaps the world.
Also at the INEEL is liquid and solid high-level waste, which is both
hazardous and radioactive. This waste presents particularly difficult
challenges in terms of treatment, storage, transport and disposal.
These Cold War wastes and contamination from site activities now
sit atop the Eastern Snake River Plain Aquifer. This Aquifer provides
drinking water and supports much of Idaho's agricultural economy,
including thousands of family farms, dairies, and a thriving
aquaculture industry.
idaho's efforts to ensure ineel cleanup
For more than 30 years, Idaho has worked to ensure DOE addresses
INEEL's environmental liabilities to protect the state's major aquifer
and other parts of Idaho's environment.
For nearly two decades there were promises with little progress.
Then, as a nation, we determined in the 1980s it was appropriate to
hold our government accountable to most of the environmental standards
we imposed on private industry. And we learned more about the
contamination our nation had created to end the Cold War and use atoms
for peaceful purposes.
When faced with DOE's poor track record in honoring its cleanup
promises and its lack of credibility, Idaho sought firmer commitments.
When other options have not produced results, we have gone to court and
used enforcement tools to protect our citizens. We prefer, however, to
see our resources directed at actual cleanup instead of legal and
administrative costs.
That is why we sought to negotiate mutually acceptable agreements
to bring INEEL into compliance with environmental standards and fulfill
its long-standing promises for treatment and removal of waste from
Idaho.
These agreements have fostered considerable progress. And they have
provided a public forum for discussion of cleanup. The State and its
regulatory agencies have worked with DOE to support innovative
approaches and common sense cleanup requirements, changing our
agreements and restructuring activities as appropriate to achieve
tangible results.
INEEL's cleanup program is making great strides. Inventories of
highly radioactive liquid waste have been cut by more than half. The
damaged reactor core from Three Mile Island and other spent fuel has
moved from aging storage pools to safer, dry storage. And shipments of
Rocky Flats waste, stored in Idaho for decades, are now leaving Idaho
for the WIPP repository in New Mexico.
We have encountered some problems, however, such as the Pit 9
project for demonstrating technology for buried transuranic waste
retrieval, the subject of a hearing before this Subcommittee several
years ago. As DOE's own Top-to-Bottom Assessment realized, these
problems often stem from overly simplistic assumptions, DOE's internal
project management, or a lack of clear focus on tangible results.
We cannot make DOE's toughest cleanup problems magically disappear
or indefinitely postpone efforts to solve them. The costs, financial
and otherwise, will only go up. We need a solid investment strategy for
reducing uncertainties and moving forward.
efforts to further accelerate cleanup
In May, Idaho entered into a letter of intent with DOE and EPA to
support acceleration of INEEL cleanup. DOE recognized that existing
agreements provide a reasonable and flexible framework for advancing
our cleanup goals, and that we can save resources by not reinventing
the wheel.
We are now involved in DOE's efforts to develop performance
management plans to restructure INEEL cleanup work within the framework
of existing compliance agreements.
The collective desire of Congress, DOE and states housing DOE
facilities for sooner, safer and more efficient cleanup is not new.
It's one we strongly support.
As we renew our commitment to sooner, safer and more efficient
cleanup through our participation in DOE's accelerated cleanup
initiative, there are certain steps essential to our success.
We need dependable, sufficient funding, focused management
attention, sound investments in science and technology and improved
public confidence in the cleanup process.
While it's healthy to set aggressive goals for completing cleanup,
we must not fool ourselves with creative accounting practices or
simplistic assumptions. Earlier DOE cleanup plans reduced environmental
liabilities and risks on paper, but eroded confidence in cleanup
investments when some of the rosy forecasts did not prove out. We are
working with DOE to provide a realistic assessment of the nature and
extent of the problems to be solved.
In our press to reduce schedule and costs, we must still present
investors in cleanup a clear understanding of programmatic risks,
whether they involve unproven technology, regulatory assumptions,
repository availability, decisions at other sites or public challenge.
We must also clearly define parameters for success that can remain
consistent from one administration to the next.
The state of EM's science and technology program causes some
concern.
It is unclear today what criteria DOE is using to develop
environmental management priorities for science and technology. For
example, EM's Office of Science and Technology's latest proposed
funding for FY2003 includes no INEEL projects, although such
investments hold considerable potential for reducing the schedule and
cost of two of the site's toughest, and most costly cleanup issues--
high-level waste and buried plutonium-contaminated waste. The estimated
baselines for these projects are over 10 years and billions of dollars.
If DOE does not investigate alternatives for these high-risk, high-
cost baselines now, it will be locked into existing options to honor
its commitments and keep from passing these problems onto the next
generation.
Some reform proposals involve transferring materials or
responsibilities to other federal programs, so plans should recognize
where costs are truly saved, versus shifted elsewhere.
DOE began its reform process by negotiating with sites and states
fairly independently. However, plans for the INEEL and other sites
often depend on work in other places for storage, treatment and
disposal. For acceleration initiatives to succeed, DOE will have to
address interdependencies among sites. Idaho and other states have
offered to serve as catalysts for collective discussions with sites
through the National Governors Association DOE Task Force.
Idaho is also committed to ensure INEEL cleanup is accelerated in a
way that is compatible with the Department's larger mission objectives.
DOE has agreed to develop a strategy for smoothly transferring
laboratory functions from the Office of Environmental Management to
other program sponsors.
In closing, Idaho remains committed to meeting our cleanup goals
for the INEEL as efficiently as possible while ensuring we preserve the
laboratory's capabilities for meeting our nation's security, energy,
basic science and environmental needs.
We are all investors in successful cleanup. To succeed, we will
need more than general pronouncements of schedule and cost savings. We
will have to evaluate our problems, recognize uncertainties and
determine how to get the maximum return on investment--accelerated
cleanup that saves money and reduces risk.
Mr. Greenwood. Thank you.
Mr. Owsley.
TESTIMONY OF JOHN A. OWSLEY
Mr. Owsley. Thank you, Mr. Chairman and members of the
subcommittee. I appreciate this opportunity to appear before
you to discuss the Department of Energy's Environmental
Management Program reforms and their impact on Tennessee
compliance agreements.
Beginning in the late 1970's and continuing through the
early 1980's, the State of Tennessee sought to exercise its
rights to enforce State environmental standards at the self-
regulated Federal facilities on the Department of Energy's Oak
Ridge Reservation. The State initially met with stiff
resistance from Federal authorities, but gradually, beginning
in the mid-1980's, real progress has been made in environmental
compliance.
DOE's 35,000-acre Oak Ridge Reservation is located in east
Tennessee, along the Clinch River, and within the boundaries of
the city of Oak Ridge. The Reservation played a major role in
the production of materials for the Manhattan Project during
World War II. Since the end of the cold war, the focus has
shifted to cleaning up the legacy of nuclear weapons
production.
Today, more than 45,000 Tennesseans live within five miles
of the DOE facility. Tennessee expects the missions of the
National Nuclear Security Administration's Y-12 Area Office and
the Oak Ridge National Laboratory to continue and improve.
DOE is subject to most Federal environmental laws. Where
DOE is self-regulating, the State of Tennessee is involved in
non-regulatory oversight under the Tennessee Oversight
Agreement. Tennessee Department of Environment and
Conservation, referred to as TDEC, ensures that DOE complies
with the Comprehensive Environmental Response Compensation and
Liability Act through the Federal Facilities Agreement for the
Oak Ridge Reservation. This agreement establishes environmental
cleanup and restoration procedures and milestones for the Oak
Ridge Reservation. The TDEC DOE Oversight Office plays the
primary role in enforcing the obligations created under this
agreement.
The Oversight Office also coordinates with other TDEC
divisions to ensure that DOE does not cause excessive pollution
to the air, water and land. For example, TDEC is federally
authorized to carry out its own regulatory program for the
Resource Conservation and Recovery Act, referred to as RCRA.
Tennessee's RCRA program consists of many statutes, rules and
permits as well as a series of requirements contained in
numerous enforcement orders issued to DOE.
Tennessee's primary concern is the protection of public
health, safety and the environment. Tennessee, DOE, and EPA are
working with stakeholders to address a number of problems
related to these issues. There is groundwater contamination on
and off the Oak Ridge Reservation. As a result, DOE is
restricting its use. There are over 100 miles of contaminated
rivers and streams that are being addressed through fish
consumption advisories and other institutional controls. Over
130 acres of buried waste containing 40 million pounds of
uranium and 6 million curies of buried radioactive waste remain
on the Oak Ridge Reservation. Over 250,000 curies of
radioactive waste have been discharged into surface streams
from the Oak Ridge Reservation, and over 339,000 pounds of
mercury were released from the Y-12 Plant into the East Fork
Poplar Creek and the Clinch and Tennessee Rivers. There are six
shutdown nuclear research reactors and over 400 other surplus
deteriorating facilities that will have to be decontaminated
and decommissioned or demolished. DOE also stores the largest
inventory of its low-level radioactive waste, mixed low-level
radioactive waste, and remote handled transuranic waste on the
Oak Ridge Reservation.
For the past year and a half, the State of Tennessee and
EPA have been in informal and formal dispute with DOE over the
adequacy of DOE's commitment to the Oak Ridge Reservation
cleanup. The dispute specifically involved DOE's unwillingness
to commit to a reasonable level of work to remediate the Oak
Ridge Reservation in a timely manner. In February 2002, DOE
released a Top-to-Bottom Review of its Environmental Management
Program which underscored the need to refocus DOE's cleanup
effort on risk reduction and mortgage reduction and to execute
work more quickly. Each of these needs was part of the State's
dispute with DOE.
The State signed a Letter of Intent with DOE and EPA to
formalize a commitment that would clean up high-risk sites at
the Oak Ridge Reservation by 2008, and substantially complete
the balance of the work by 2016. Completion was originally
slated for 2021. The Letter of Intent also committed the State
and EPA to work with DOE to develop a plan to implement
accelerated cleanup on the Oak Ridge Reservation. The plan,
signed on June 18, 2002, resolved the formal dispute between
Tennessee, EPA and DOE by meeting the State's and EPA's
requirement for more rapid cleanup at Oak Ridge.
The State of Tennessee uses a number of compliance
agreements and commissioner's orders to enforce environmental
regulations at the Oak Ridge Reservation. DOE's accelerated
cleanup plan agreement does not change any existing agreements
with Tennessee, nor does it create any new rights or remedies
for either party. All previous orders issued to DOE and all
agreements entered into by DOE and TDEC remain in effect and
shall continue to be complied with by DOE.
That concludes my testimony. Again, I appreciate the
opportunity to speak for the State of Tennessee.
[The prepared statement of John A. Owsley follows:]
Prepared Statement of John A. Owsley, Director, DOE Oversight Division,
Tennessee Department of Environment and Conservation
Mr. Chairman and members of the subcommittee, I appreciate this
opportunity to appear before you to discuss the Department of Energy's
Environmental Management (EM) Program reforms and their impact on
Tennessee compliance agreements.
Beginning in the late 1970's and continuing through the early
1980's, the state of Tennessee sought to exercise its rights to enforce
state environmental standards at the self-regulated federal facilities
on the Department of Energy's (DOE) Oak Ridge Reservation (ORR). The
state initially met with stiff resistance from the federal authorities.
But gradually, beginning in the mid-1980s', real progress has been made
in environmental compliance.
DOE's 35,000 acre Oak Ridge Reservation is located in water-rich
eastern Tennessee, along the Clinch River and within the boundary of
the city of Oak Ridge. The reservation played a major role in the
production of materials for the Manhattan Project during World War II.
Since the end of the Cold War, the focus has shifted to cleaning up the
legacy of nuclear weapons production.
Today, more than 45,000 Tennesseans live within five miles of a DOE
facility. DOE is responsible for environmental management, research and
development, uranium enrichment, defense programs and other activities
on the Oak Ridge Reservation. Tennessee expects the missions of the
National Nuclear Security Administration's Y-12 Area Office and the Oak
Ridge National Laboratory to continue and improve.
DOE is subject to most federal environmental laws. The Clean Air
Act, the Clean Water Act, the Resource Conservation and Recovery Act
(RCRA), the Comprehensive Environmental Response Compensation and
Liability Act (CERCLA) and other environmental laws all apply to DOE.
DOE is self-regulating under the Atomic Energy Act, which applies
to many types of radioactive materials. However, under the Tennessee
Oversight Agreement, the state of Tennessee is involved in non-
regulatory oversight of DOE's radiological issues.
The Tennessee Department of Environment and Conservation (TDEC)
ensures that DOE complies with CERCLA through the Federal Facilities
Agreement for the Oak Ridge Reservation, which was signed by DOE, EPA
and the state in 1992. The agreement establishes environmental cleanup
and restoration procedures and milestones for the Oak Ridge
Reservation. The TDEC DOE Oversight office plays the primary role in
enforcing the obligations created under this agreement.
The oversight office coordinates with other TDEC divisions to
ensure that DOE does not cause excessive pollution to the air, water
and land. For example, TDEC is federally authorized to carry out its
own regulatory program for RCRA. This federal authorization is granted
only after EPA determines that state law is at least as stringent as
federal law and regulations in the same area. Tennessee's RCRA program
consists of many statutes, rules and permits as well as a series of
requirements contained in numerous enforcement orders issued to DOE.
TDEC issued a commissioner's order to DOE in 1992 to assure the
proper storage, treatment and disposal of hazardous pond waste. A TDEC
consent order issued in 1993 modified storage and treatment permits
regarding out-of-state waste from DOE-owned facilities. Another
commissioner's order, issued in 1995, addresses mixed waste treatment
and storage at all DOE facilities in Oak Ridge and established the Site
Treatment Plan required by the Federal Facilities Compliance Act of
1992. A commissioner's order issued in 1999 led to a consent order with
DOE that established a plan for DOE to pay a perpetual care fee to
ensure resources are available to conduct necessary, long-term
surveillance and maintenance activities at a CERCLA waste disposal
facility. A 1999 consent order contains a plan that relates to the
storage and disposition of uranium hexafluoride (UF6) cylinders located
on the reservation. In addition, relevant state statutes and
regulations are applied to DOE waste management and cleanup activities
and several permits have been issued to DOE, including incineration of
waste, treatment of wastewater and storage of hazardous wastes.
Tennessee's primary concern is the protection of public health,
safety and the environment. Tennessee, DOE, and EPA are working with
stakeholders to address a number of problems related to these issues.
There is groundwater contamination on and off of the Oak Ridge
Reservation. As a result, DOE is restricting its use. There are over
100 miles of contaminated rivers and streams that are being addressed
through fish consumption advisories and other institutional controls.
Over 130 acres of buried waste containing 40 million pounds of uranium
and 6 million curies of buried radioactive waste, including deep well
injection, remain on the Oak Ridge Reservation. Over 250,000 curies of
radioactive waste have been discharged into surface streams from the
Oak Ridge Reservation. Over 339,000 pounds of mercury were released
from the Y-12 Plant into the East Fork Poplar Creek and the Clinch and
Tennessee Rivers. There are six shutdown nuclear research reactors and
over 400 other surplus deteriorating facilities that will have to be
decontaminated and decommissioned or demolished. DOE also stores the
largest inventory of its low level radioactive waste, mixed low level
radioactive waste and remote handled transuranic waste on the Oak Ridge
Reservation (44 percent of the low level radioactive waste, 56 percent
of the mixed low level waste and 76 percent of the remote handled
transuranic waste).
For the past year and a half, the state of Tennessee and EPA have
been in informal and formal dispute with DOE over the adequacy of DOE's
commitment to the Oak Ridge Reservation cleanup. The dispute
specifically involved DOE's unwillingness to commit to a reasonable
level of work to remediate the Oak Ridge Reservation in a timely
manner. In February 2002, DOE released a ``Top-to-Bottom Review'' of
DOE's Environmental Management Program which underscored the need to
refocus DOE's cleanup effort on risk reduction and mortgage reduction
and to execute work more quickly. Each of these needs was part of the
state's dispute with DOE.
The state signed a letter of intent with DOE and EPA to formalize a
commitment that would clean up high risk sites at the Oak Ridge
Reservation by 2008, and substantially complete the balance of the work
by 2016. Completion was originally slated for 2021. The letter of
intent also committed the state and EPA to work with DOE to develop a
plan to implement accelerated cleanup on the Oak Ridge Reservation. The
plan, signed on June 18, 2002, resolved the formal dispute between
Tennessee, EPA and DOE by meeting the state's and EPA's requirement for
more rapid cleanup at Oak Ridge.
DOE's accelerated cleanup plan agreement does not change any
existing agreements with Tennessee, nor does it create any new rights
or remedies for either party. All previous orders issued to DOE and all
agreements entered into by DOE and TDEC remain in effect and shall
continue to be complied with by DOE. The agreement is simply intended
to establish a framework to promote cooperation between the parties and
streamline the decision making process. This will allow the parties to
achieve the accelerated goals documented in the Comprehensive Cleanup
Proposal and Letter of Intent.
The state of Tennessee uses a number of compliance agreements and
commissioner's orders to enforce environmental regulations at the Oak
Ridge Reservation. These are described separately below as is the
success of the enforcement action on the Oak Ridge Reservation cleanup.
letter of intent among the department of energy, the state of tennessee
and the environmental protection agency
The letter of intent signed in May 2002 commits the state of
Tennessee, the U.S. Environmental Protection Agency and the U.S.
Department of Energy to accelerate cleanup at the Oak Ridge
Reservation. The letter also documents how the results of DOE's top-to-
bottom review and other initiatives will be used to devise and
implement a more efficient decision making process, develop integrated
planning and funding requests and meet commitments under the Federal
Facility Agreement for the Oak Ridge Reservation. The letter outlines
plans to clean up high-risk sites at the Oak Ridge Reservation by 2008
and substantially complete the balance of the work by 2016. Completion
was originally slated for 2021.
oak ridge accelerated cleanup plan agreement
The agreement describes a streamlined decision making process to
facilitate the accelerated cleanup of the Oak Ridge Reservation and
establishes future actions needed to complete the cleanup. The
agreement also resolved a formal Oak Ridge Reservation Federal Facility
Agreement milestone dispute by providing enforceable milestones through
fiscal year 2005. The agreement requires: a performance management plan
to provide a management-level synopsis of how the proposed accelerated
cleanup will be implemented; a comprehensive waste disposition plan;
and a comprehensive cleanup plan for the balance of the program
consisting of a baseline schedule that will include all of the DOE Oak
Ridge Environmental Management milestones and activities planned to
complete the accelerated cleanup plan through 2008 and the balance of
the program projected through 2016. The agreement also lists those
outstanding issues that are currently being addressed by the parties to
the agreement.
federal facility agreement
The state of Tennessee, DOE, and EPA signed the Federal Facility
Agreement for the Oak Ridge Reservation (FFA) in 1992. The agreement
outlines a procedure for the reservation's cleanup, including problem
identification, activity scheduling and implementing and monitoring
appropriate responses. Actions taken under the FFA conform to CERCLA,
RCRA and other federal and state laws. Under the FFA, the three
agencies agree on a cleanup schedule, with clear deadlines for cleanup
milestones. EPA and the state have the authority to penalize DOE when
these deadlines are missed.
The FFA for the Oak Ridge Reservation has been successful. Examples
of this success include:
Approximately 35 separate remedial actions are complete;
Several site-wide remedial actions are ready to be implemented
as funding becomes available;
Over 50 decision documents have been approved over the last
ten years; and
The state of Tennessee plays a pivotal role in the development
and oversight of remedial actions.
The latest formal FFA dispute was undertaken because DOE's proposed
scope for enforceable milestones for fiscal years 2002 through 2004
would not meet the expectations of the state of Tennessee and EPA. The
Oak Ridge Accelerated Cleanup Plan Agreement resolved the dispute by
integrating DOE Oak Ridge operations' planning and DOE headquarters
funding requests. This integration allowed DOE to commit to substantial
and enforceable milestones through fiscal year 2005.
commissioner's order no. 99-0438--emwmf perpetual care trust fund
The Environmental Management Waste Management Facility (EMWMF)
record of decision was signed in 1999. The commissioner's order was
implemented to develop a trust fund to ensure resources are available
to conduct necessary surveillance and maintenance activities at the
facility to ensure long-term environmental protection. The order
requires DOE to provide $1 million per year for 14 consecutive years.
DOE has been making these payments on schedule. The state of Tennessee
maintains the fund. The state expects this fund to provide necessary
resources for surveillance and maintenance beyond the closure date of
the facility.
commissioner's order 95-0514--site treatment plan
The Site Treatment Plan was implemented in October 1995 through a
commissioner's order, in compliance with the Federal Facility Act of
1992. This order effectively established a plan and process through
negotiation between the state of Tennessee and DOE for establishing
annual mixed waste treatment milestones to eliminate the huge 138
million pound mixed waste inventory stored at Oak Ridge. Annual
implementation of this process from September 1995 through September
2001 has quite successfully reduced the massive inventory to 39 million
pounds and will continue until all legacy mixed waste has been treated.
At issue now is DOE's commitment to Tennessee to commence shipments
of mixed remote-handled transuranic waste in storage at Oak Ridge to
the Waste Isolation Pilot Project (WIPP) facility beginning in January
2003. DOE has informed Tennessee that based on a previously unrevealed
interpretation of federal regulation enacted in 1996 pertaining only to
the WIPP facility itself that it will not recognize Tennessee's ability
to enforcement of any sort of shipment schedule whether delayed by
mutual agreement or not. Tennessee is willing to recognize a delay for
securing access to the WIPP facility for remote-handled transuranic
waste, and is prepared to fight to maintain its right to enforce a
schedule of shipment.
commissioner's order 99-0372--portsmouth contaminated soils
DOE's failure in FY 1998 to treat the milestone quantity of mixed
waste at the TSCA incinerator resulted in another order with a civil
penalty of $500,000. As has become a tradition in Tennessee, an agreed
order was jointly developed. The order required DOE to complete a
supplemental environmental project instead of paying the cash penalty.
Under this project, a legacy mixed waste stream of 3019 drums from
Portsmouth, Ohio stored at Oak Ridge was removed from storage,
transported and disposed of at Envirocare of Utah.
commissioner's order 92-0412--rcra permitted storage limits
The terms and conditions associated with three state of Tennessee
issued RCRA storage permits in 1992 caused an appeal by DOE, and
resulted in a state issued order. Ensuing discussions and negotiations
resulted in an agreed order, which partially achieved the goals of both
parties. Specifically, DOE can store off-site generated waste on-site
up to 10 percent of the permitted capacity. Additionally Tennessee may
limit storage time to less than 30 days, unless storage is incidental
to treatment.
commissioner's order 97-0378/98-h0023--management and disposition of
uranium hexafluoride at the east tennessee technology park (former k-
25)
This commissioner's order, signed on February 2, 1999, states that
``DOE shall submit a plan containing schedules for activities that will
ensure either removal of all known DUF6 cylinders and their contents
from ETTP or conversion of the contents of such cylinders will be
completed by December 31, 2009.'' There is approximately 60,000 tons of
DUF6 stored outdoors at ETTP, some since the 1940s.
Closure of ETTP is one of the three cornerstones of the accelerated
closure plan proposed by DOE. The accelerated closure plan cites 2008
as the target date for closure. In order to close ETTP, all of the
approximately 7,000 UF6 cylinders must be removed. The accelerated
closure plan will comply with the commissioner's order. However,
important prerequisites include conversion capability to treat UF6,
compensating states for emergency preparedness and transportation
safety expenses and providing or funding transportation security.
While funding for the UF6 cylinder project has been included as a
line item in the accelerated closure plan, there are many uncertainties
due to the enormity of the project: adequate funding and adequate time
for completion of the project are concerns; a conversion contract must
be awarded, over-pack containers must be designed for transportation of
the cylinders, and over-pack design must be approved by the Department
of Transportation and the Nuclear Regulatory Commission; the involved
states, including Tennessee, Ohio, and Kentucky, have not been assured
that emergency management and transportation issues have been
addressed; the states have not been assured that funding will be
adequate for inspections, needed response operations, and training of
local and state personnel in responding to potential accidents
involving this radioactive material; DOE has not made a proposal to the
states regarding interstate transportation and treatment of Tennessee's
60,000 tons of UF6; and the conversion contract award has been
postponed several times putting ETTP closure planning at risk.
commissioner's order: case #91-3205--pond waste
This order was issued in 1992 because DOE violated the interim
status standards for storage by storing 77,814 drums of listed
hazardous waste, generated by the closure of K-1407-B and C ponds at K-
25. DOE agreed to implement and complete a waste management plan
consistent with the interim record of decision and the action plan. In
lieu of the civil penalty of $96,004, DOE agreed to remove and
transport approximately 232 55 gallon drums of mixed waste, and 26
drums and 10 boxes of waste from the Witherspoon Superfund site in
Knoxville, TN to K-25 for storage, treatment and/or disposal. The cost
of this environmental clean-up project was estimated to exceed
$300,000.
commissioner's order 88-3434--atomic city auto parts site
DOE is listed as a potential responsible party under state
Superfund regulations because a major portion of the contaminants of
concern at the Atomic City Auto Parts site came from material purchased
from a DOE contractor. Soil contamination at the site includes but is
not limited to arsenic, barium, cadmium, chromium, lead, mercury,
selenium, silver, uranium, zinc, lithium and polychlorinated biphenyls
(PCB's). DOE has prepared and submitted to TDEC a remedial
investigation/feasibility study document. DOE has performed certain
removal actions in compliance with the order, but residual
contamination requires further action. TDEC has razed onsite buildings
and completed two interim removal actions. A third phase interim
removal is currently ongoing. Approximately 3,000 cubic yards of soil/
debris are staged onsite awaiting final disposition. Subsequent removal
actions are proposed after completion of Phase III and additional site
characterization. DOE will reimburse TDEC for costs associated with the
remedial action up to $8 million.
commissioner's order 90-3443--david witherspoon, inc.; 90-3442
witherspoon screen arts site; 903444 witherspoon landfill site
DOE is listed as a potential responsible party under state
Superfund regulations because a major portion of the contaminants of
concern at the Witherspoon sites came from material purchased from a
DOE contractor. The parties to the Federal Facility Agreement
(Tennessee, EPA and DOE) agreed to allow DOE to use the Environmental
Restoration Benefit Assessment Matrix to set the priority of cleanup of
the Witherspoon Landfill site, Witherspoon Screen Arts site and David
Witherspoon, Inc, and to allow the sites to compete directly with FFA
operable units for DOE ORO funding.
The David Witherspoon, Inc. site is located in a residential
neighborhood in the Vestal community of South Knoxville. DOE has
completed a remedial investigation/feasibility study of the property,
confirming that onsite soils are grossly contaminated with heavy
metals, PCB's, dioxins/furans and radioactivity. TDEC has reviewed the
document and requested additional characterization work, primarily with
respect to defining the extent of contamination.
Since promulgation, DOE and/or TDEC have completed several interim
measures at the site, including placement of a fence and razor wire to
restrict access, interim removals of drummed mixed waste and
contaminated scrap and drainage diversion/control. A significant volume
of scrap and debris that remains on the surface must be managed prior
to initiating cleanup of the contaminated soil.
The Witherspoon Landfill site consists of approximately 50 acres,
also located in the Vestal community of South Knoxville. DOE has
completed a remedial investigation/feasibility study of the property.
TDEC requested additional characterization to define the lateral extent
of contaminant migration. Interim actions completed by DOE to date
include various removals of contaminated scrap and placement of an
interim cap over a small area of contaminated soil to prevent direct
contact exposure.
TDEC has completed an interim removal of approximately 1,000 cubic
yards of contaminated soil at the Witherspoon Screen Arts site. A
remedial investigation/feasibility study is needed to comply with the
requirements of the consent order.
commissioner's order pending--roscoe fields property
DOE is listed as a potential responsible party under state
Superfund regulations because a major portion of the contaminants of
concern at the Roscoe Fields' property came from material purchased
from a DOE contractor. Contaminants of concern included 200 leaking
drums containing Pyroquel threading oil), ethylene glycol and
radiological contamination. TDEC completed an emergency removal action
of the drums and incidentally contaminated soil. Waste materials were
transported to the DOE reservation for storage. A commissioner's order
from TDEC is pending to evaluate potential groundwater contamination
resulting from uncontrolled releases on the site. DOE is required to
reimburse TDEC for all cost associated with the removal action,
including the current state overhead cost rate.
That concludes my testimony. I appreciate the opportunity to speak
on behalf of the state of Tennessee.
Mr. Greenwood. Thank you, Mr. Owsley. The Chair recognizes
himself for 10 minutes for questions.
Mr. Owsley, you talked about the releases of mercury and
curies into the ground and surface water. Are there measurable
environmental consequences that the State of Tennessee has
determined either to the flora or fauna or to humans?
Mr. Owsley. There are measurable consequences. A double-
edged sword for East Tennessee is that we're an extremely
water-rich environment, and the dilution that is seen by
discharge from the Oak Ridge Reservation into the Clinch and
Tennessee Rivers are such that these levels do not create an
imminent hazard to human health and the environment.
Mr. Greenwood. Do you have high levels of mercury in fish
as a consequence, for instance?
Mr. Owsley. We have levels of mercury and PCB in fish that
require fish consumption advisories both on and off the Oak
Ridge Reservation.
Mr. Greenwood. Thank you. Mr. Owsley, this is a question I
asked Ms. Roberson, and I want to get your response. You
described a contentious issue between Tennessee and the
Department regarding shipments of mixed wastes out of Oak Ridge
to the Waste Isolation Pilot Program. You point out that DOE
will not recognize Tennessee's ability to enforce mixed waste
shipment schedules to WIPP, even if those shipments are
delayed, and that Tennessee is prepared to fight to enforce
your scheduled shipments. Would you elaborate on that
situation?
Mr. Owsley. Yes, sir. The Federal Facilities Compliance Act
requires the Federal Government, including the Department of
Energy, to treat the hazardous component of its mixed waste in
storage, and the waste question here is transuranic waste that
will have to be disposed of at the Waste Isolation Pilot
Project Plant, and DOE, as required by the Act, entered into a
site treatment plan with the Department of Energy in 1995. And
in that plan, they established a series of milestones for the
treatment and shipment of their mixed, remote-handled
transuranic waste. At that time, it felt like that the
necessary permitting to allow this material to be disposed of
at WIPP would be in place. That permitting is not in place at
this point in time.
So, in the State's opinion, DOE, rather than moving toward
establishing the necessary permits to dispose of the remote-
handled transuranic waste, moved to look for ways to eliminate
the milestones.
According to the Compliance Act, DOE is required to comply
with the Site Treatment Plan, as written. They have proposed to
remove the milestones for shipment. The State of Tennessee has
rejected that proposal. And, presently, we are still expecting
shipments by January 2003, and if DOE fails to have the
milestone extended or meet the milestone, the State of
Tennessee does plan to take enforcement action.
Mr. Greenwood. Do you think it is going to happen, or do
you think you will be able to work it through?
Mr. Owsley. Physically, it cannot happen by January 2003.
We are prepared to work with the Department of Energy to work
out a reasonable schedule. They have recently submitted the
necessary paperwork to achieve modification of the permit to
allow the remote-handled waste to be disposed of at WIPP. That
is normally an 18 month to 2 year process. So, we have a
reasonable time line that we could enter into with the
Department of Energy, but we insist on having the enforcement
capabilities.
Mr. Greenwood. Thank you. Ms. Trever, as you know, cleanup
at your sites in Idaho requires DOE to coordinate with other
DOE sites for waste disposal. Do you believe DOE has used an
integrated approach in its negotiations with each State that
recognizes the interdependencies among the sites?
Ms. Trever. Mr. Chairman, so far the Department has been
negotiating with States in a fairly independent fashion and, as
you noted, it will require the States and the sites to
ultimately come together. We have not embarked on that journey
yet, but we fully expect that DOE will work with sites
collectively, and it will need to do so in order to accomplish
its objectives.
Mr. Greenwood. Thank you. Mr. Wilson, cleanup of the
underground radioactive tank waste at Hanford is the Nation's
most important cleanup project. The current cost estimate to
clean up the Hanford tanks is $49 billion. The compliance
agreement between Washington State and DOE requires the
Department to remove all of the radioactive waste from the
tanks. However, if we were to allow DOE to remove the most
dangerous radioactive wastes and stabilize the remaining low-
activity waste in place, we could adequately protect the
environment and save billions of dollars. This would free-up
more money for other cleanup projects at Hanford. What do you
think about that?
Mr. Wilson. First of all, let me say that after 13 years of
having the Tri-Party Agreement in place, we have begun--
Department of Energy began construction of Hanford's tank waste
Vitrification Plant last week. And if it weren't for the fact
that it was 104 or 105 degrees out there, we would have been
pouring a lot more cement these last weeks, and I think this is
something to be celebrated and Department of Energy to be
congratulated for.
On leaving waste in place, we are not there with the
Department of Energy if they propose that. We have a process in
place, in the Tri-Party Agreement, that Ms. Roberson alluded
to, and that is they must attempt to first get a minimum of 99
percent of the waste out of each of Hanford's tanks, and then
we can--if it is technically infeasible, then we can talk to
them about that.
Through our Performance Management Plan at Hanford, we have
in place a process for testing that Tri-Party Agreement
process, and the Department of Energy has agreed to that. The
removal of tank waste has not yet been tried, and the Tri-Party
Agreement process has not yet been tried. I think it is way too
early to be talking about how much waste to leave in place
before we have ever tried to get any waste out of the tanks.
Along those same lines, as far as doing risk-based cleanup,
we don't have near enough information about the situation, the
geologic situation, around those tanks, to be making those
kinds of decisions at this point.
We have been asking for a number of years for the
Department of Energy to do the necessary investigations to
start making those kinds of determinations, and we don't yet
have that information in place.
Mr. Greenwood. Thank you. Back to you, Ms. Trever. Your
written testimony states that you are working with DOE on an
accelerated cleanup plan ``within the framework of existing
compliance agreements.'' The statement seems to indicate that
the State of Idaho is not ready to change existing compliance
agreements. Are you willing to alter commitments made in
consent orders or compliance agreements in order to accelerate
cleanup?
Ms. Trever. Mr. Chairman, let me explain what I meant by
``framework of existing agreements.'' Each of those agreements
does provide mechanism for fine-tuning or changing goals or
changing schedules based on changes in circumstances, whether
they be budgetary, political, social or technical. And the
mechanisms are in place to deal with changes in circumstances.
The cleanup goals themselves will remain the same, but we
have considerable flexibility in how we ultimately achieve
those goals, and why it is important from our perspective to
work within the framework of existing compliance agreements.
Since there are tools already in place that have sufficient
flexibility, we want to use them and focus our resources on
actual on-the-ground cleanup rather than investing in
additional negotiation or administrative process.
Mr. Greenwood. Thank you. Let me ask a question and ask
each of you to respond to it. Each of you has signed a Letter
of Intent with DOE. Do you believe this initiative will assure
your site of additional accelerated cleanup funds for next year
and in subsequent years? We will start with you, Mr. Wilson.
Mr. Wilson. In my testimony, I indicate that this was never
done with the intention of achieving anymore cleanup funds for
the State of Washington. We started this process before the
accelerated cleanup account, and that approach was in place.
We expect that the Tri-Party Agreement changes that we have
made that have led to the Letter of Intent and to the
Performance Management Plan, that the Department of Energy will
meet those obligations--their obligations--regardless of
funding. And we assume that when they enter into a contract
with us, that the funds will come.
Although we had no promise of any money when we entered
this process, when the budget and the accelerated cleanup
account were in place, we did think in terms of helping Hanford
qualify for those funds should they become available.
Mr. Greenwood. Ms. Trever?
Ms. Trever. Mr. Chairman, those of us that have worked in
this issues for more than one Administration recognize that
with each Administration there may be some change in
initiatives. So it is difficult to predict much beyond the
current budget cycle in terms of whether a particular
initiative will be sustained.
I would echo Mr. Wilson's comments that we have agreements
in place and expect DOE to honor those commitments. We do think
there is considerable promise in the acceleration initiative
and a new spirit of cooperation on the part of the Department
to work out ways of achieving the goals sooner, safer, and more
efficiently, and we are committed to working with them on that
and do expect, given what we have seen, although we are still
developing details, to be eligible for cleanup funds in the
next fiscal year.
Mr. Greenwood. Mr. Owsley.
Mr. Owsley. As noted earlier, the State of Tennessee and
the Environmental Protection Agency have been in informal
dispute with DOE over the past year and a half, over their
level of commitment in cleanup. We have had in place since
December of 2001 decisions that all three parties agree to, yet
DOE would not commit to the funding in order to implement those
cleanup projects. As a result of the accelerated cleanup
reforms, DOE felt like it was able to commit to those levels of
cleanup and, in fact, have committed to 3 years of enforceable
milestones. The State of Tennessee now has enforceable
milestones with the Department of Energy through 2005. So, we
feel comfortable that DOE has signed up to milestones that they
will meet.
Mr. Greenwood. Thank you. Recognize the gentleman from
Florida for 10 minutes.
Mr. Deutsch. Thank you, Mr. Chairman. The GAO has testified
that under the new plan, waste may be reclassified so it can
remain onsite or have lesser cleanup. Is this your
understanding of the plan for each of your States? Mr. Wilson?
Mr. Wilson. This is not our understanding of the plan from
the State of Washington, I testified to that also. I think we
need to be careful when we talk in terms of leaving waste
onsite versus things like leaving waste in place, which is what
we are extremely concerned about in the case of the Hanford
tanks. On the one hand, we expect a lot of waste to be left at
the site. What we don't expect is for a lot of waste to be left
in place, particularly in the Hanford waste tanks.
Mr. Deutsch. Ms. Trever?
Ms. Trever. Mr. Deutsch, let me reiterate that Idaho's
cleanup goals remain the same. We expect this to be an
initiative to accelerate meeting those goals, not shortening
the playing field, as it were. So, we expect the effort the
Department makes to find ways to achieve our collective goals
sooner, safer and more efficiently.
You have talked about reclassification of waste. I would
mention that one of the difficult issues in radiological waste
is not all the wastes are based on their contents, sometimes
they are based on their source.
We have been evaluating, along with the Department, whether
it may be appropriate or more proper to classify waste
differently, and that may provide us with more cleanup options,
but, again, we do not expect that to result in less cleanup.
Mr. Deutsch. Can I just do a followup for you specifically
because of the way you answered the question, which was, I
think, clear, but to focus in. I understand what your intention
is and what your State's intention is. Is that the impression,
though, you are getting from what DOE is saying?
Ms. Trever. Mr. Deutsch, the impression that we are getting
from DOE on the waste in question, Idaho also has a tank farm
much smaller than Hanford--that is, 11 300,000-gallon tanks--is
they are evaluating whether it is more proper to classify that
waste as transuranic waste rather than high-level waste. We do
not, however, expect that to result in leaving more waste in
place. We still expect our goals for treating and removing the
waste from that tank farm to be accomplished.
Mr. Deutsch. I appreciate that. Mr. Owsley.
Mr. Owsley. Tennessee has not changed any of its cleanup
expectations as a result of this accelerated cleanup, nor do we
expect to. Circumstances on the Oak Ridge Reservation are such
that redefining waste is not an issue for the State of
Tennessee.
DOE is asking the State of Tennessee to consider additional
disposal and onsite CERCLA or Super Fund cleanup waste that has
been constructed at the facility. We have made it clear that we
do not expect to change any policies or waste exceptions
criteria as a result of the cleanup and, as such, provided the
material that DOE proposes to be disposed of, and the waste
cell is, in fact, a CERCLA waste and meets the waste acceptance
criteria, we will consider it. Otherwise, we will not.
Mr. Deutsch. Mr. Wilson, GAO referred to a plan to reduce
the amount of vitrification of waste at one of the sites. Which
site are they talking about?
Mr. Wilson. I would assume that they are talking about
Hanford. As part of the Letter of Intent and the Performance
Management Plan, one of the issues we are dealing with is the
potential for what we prefer to call ``supplemental treatment
technologies,'' and we are engaging with the Department of
Energy in exploring alternative treatment technologies to
vitrification for some of the waste.
If they come up with technologies that meet criteria for
disposal and stability of the final end product, we are willing
to talk to them about it. One of the main tenets of our
discussion, though, is that they will proceed with the
construction and operation of the vitrification plant, as it is
planned right now. It is understood that we may not be able to
shorten the time of final cleanup of the Hanford site unless we
come up with some faster ways to treat the waste in the tanks,
and so we have agreed to join in that process, but made no
commitments outside of those I mentioned.
Mr. Deutsch. Do any of you think that the waste at your
sites has been misclassified and doesn't require the level of
treatment initially planned, yes or no?
Mr. Wilson. I think as long as we go forward with the plans
that are in place now, I don't think that that is an issue
today. We don't expect to be waving a wand over waste and
reclassifying it at Hanford.
Mr. Deutsch. Ms. Trever?
Ms. Trever. Yes. We, too, do not expect that classification
of waste affect the ultimate outcome based on what we know now.
I would also like to add on your previous question, the
Department is also evaluating whether a technology or treatment
approach other than vitrification for Idaho's high-level waste
is also appropriate. Similar to Mr. Wilson, we are reserving
judgment since converting that waste into a glass or ceramic
form is what has been the baseline plan for getting that waste
to geologic repository. So, we will be looking at this process,
but have not made any decisions on it as yet.
Mr. Deutsch. Mr. Owsley?
Mr. Owsley. Tennessee has no difficulties with the present
classification of waste on the Oak Ridge site. We do, however,
have difficulty in where this material will be disposed of.
Mr. Deutsch. Ms. Trever, have you had any response to your
proposal for collective discussions with other sites through
the National Governors Association?
Ms. Trever. I believe I have received some feedback on
that, however, as you may have gathered from the discussion
with the Assistant Secretary and the gentleman from the
Commonwealth of Kentucky, the Department is still in the
process of negotiating individual site agreements. And until it
works its way through that process, I would not expect it to
engage in collective discussions. Once it does complete this
round of negotiations, however, I hope and expect that the
Department will take advantage of that opportunity.
Mr. Deutsch. My last question, was it a mistake for DOE not
to have consulted with you before it announced its accelerated
cleanup plan? Mr. Wilson?
Mr. Wilson. I'll just say that because I think Hanford was
in a unique situation because we had already started on this
collaborative effort with our local site people, so we were
essentially in an accelerated cleanup situation at Hanford.
Although it was somewhat of a surprise, it was kind of a good
surprise because we felt we were already well down the road on
meeting the requirements of what was proposed in the 2003
budget.
Mr. Deutsch. Ms. Trever?
Ms. Trever. I would answer for Idaho that I think the
manner in which the Department proceeded with its evaluation
both in the Top-to-Bottom assessment and announcement of this
initiative in conjunction with the budget did set us back for a
few months because there was considerable confusion about what
the intentions of the Department were, and that led us to some
issues in terms of public concern with the initiatives, also in
terms of Idaho's Congressional Delegation. Their ability to
understand what the Department's intentions were were also
affected, but I think ultimately we have lost some months, we
have now gotten to a place where we are moving forward and can
work cooperatively with the Department on this initiative.
Mr. Deutsch. Thank you.
Mr. Owsley. For Tennessee, I don't know that it was a
mistake for the Department of Energy not to share its
deliberations with the individual sites. We did find it fairly
disconcerting, and it did lead to a year and a half of
escalating enforcement from the State of Tennessee. We were
very much concerned that DOE's definition of accelerated
cleanup was less cleanup, and we were certainly not willing to
accept that and were preparing to fight. When they finally did
release their Top-to-Bottom review, we were pleased that that
was not what they were proposing, and they were, in fact,
proposing what we had been asking them to do for the last 10
years, and that was accelerate the cleanup of the high-risk
areas and reduce their mortgage reduction. So, once we saw what
they were proposing, we were very much relieved that we were
not going to have to enter into formal--or complete our formal
dispute resolution.
Mr. Deutsch. Thank you very much.
Mr. Greenwood. Let me just give two more questions to get
your responses on the record, if I could. Could you just
describe the risk factors or the risk criteria that DOE and
your States are using to prioritize cleanup projects for
accelerated cleanup? What are the risk factors and risk
criteria? Mr. Wilson?
Mr. Wilson. We have not incorporated any specific risk
factors, that I know of. Let me speak just a little bit to the
issue of risk because I look at risk in two different types of
risk. There is the programmatic kind of risk and that is
something that I think you should consider in the cleanup
process. For instance, we have a large number of huge
facilities at Hanford, some of which cost $100 million a year
just to keep the lights on and keep them safe. That $100
million a year could be spent from now into the foreseeable
future. Those facilities may pose, let us say, a medium risk to
the people around them and in the near future, but they cost
$100 million a year.
If you were to spend $125 million on that same facility for
the next 5 years, you may be able to bring it down and
eliminate that cost forever. So, if you spend $25 million more
for 5 years, you could get rid of that $100 million cost
forever, and I think that is something that needs to be
considered when you start talking about risk because you have
got huge costs out there, and if you look at it only from a
risk base, you are only seeing the tip of the iceberg.
The other is the environmental/human health kinds of risk
that we talk about in cleanup, and we just simply do not have
the kind of information we need to make those determinations at
Hanford. There is a lot of--specifically, groundwater,
particular--information and spread of contaminant kinds of
information that we need to know before we can get involved in
those kinds of decisionmaking processes.
Mr. Greenwood. Ms. Trever?
Ms. Trever. Mr. Chairman, in response to that question, I
would expand a little bit on Mr. Wilson's comments. As
indicated in my testimony, there are technical risks and
programmatic risks, and to make wise investments we need a
clear understanding of what those are. Those have not been
fully spelled out for Idaho.
When we talk about risk, I think we also need to factor in
what I would call political or social risks. As an example, in
Idaho we had worked with DOE to forward a treatment facility
that involved incineration. There was considerable public
opposition to that, particularly in the neighboring State of
Wyoming, that led the Department to pull back on that option,
and the Department is now re-evaluating how it will proceed
with that project, but considerable amount of Agency resources,
permitting resources, were invested in proceeding with an
option that the Department ultimately pulled back on. So, I
think when we talk about risk-based cleanup, collectively, the
Congress, the Department and the States need a full and fair
understanding of what the risks are as well as what the
possible returns on those investments are in terms of schedule
and cost savings. We need to recognize what all of the
uncertainties are involved in that equation, and that will
enable us to make wise investments.
Mr. Greenwood. Thank you. Mr. Owsley?
Mr. Owsley. At Oak Ridge, we have both active operations
that create waste and must comply with existing Federal laws,
as well as it is a Super Fund site and must comply with CERCLA
or Super Fund regulations for the active waste management, for
compliance with existing laws, which their criteria are based
on impact to human health and the environment must be met. For
the CERCLA or Super Fund cleanup, we use the standard risk
measurements identified based on land use, accepted land use.
If a piece of property is to be used for industrial use, then
an industrial worker would be protected. If it were to be used
for residential use, then residents and children would be
protected.
We have identified those land uses and agreed to them. We
have identified criteria to allow those levels of uses to be
protected. We are still debating on the level of protection of
existing groundwater and what to do with existing groundwater
contamination, but we feel like once we have the source
controls in place, that that will be a fairly easy decision to
make.
Mr. Greenwood. Finally, again for each of you. DOE's
testimony states that its accelerated cleanup initiative is
``not focused solely or even primarily on the compliance
agreements.'' Do you believe that this initiative will require
changes to existing compliance agreements, and will you offer
that flexibility? Mr. Wilson?
Mr. Wilson. I think I have indicated in my testimony that
as far as flexibility, I think we are there. We have worked
long with the Department of Energy this time and in the past,
and I think we have demonstrated the fact that the Tri-Party
Agreement is flexible but, again, within limits, and those
limits being compliance with cleanup standards.
Mr. Greenwood. Ms. Trever?
Ms. Trever. Mr. Chairman, similarly, Idaho has shown a
track record for flexibility in making changes where it
achieves our goals more efficiently. However, our cleanup goals
will remain the same, and we want to make sure that
accelerating cleanup does not translate to less cleanup.
Mr. Greenwood. Mr. Owsley?
Mr. Owsley. I would reiterate the point that the State of
Tennessee considered its existing Federal Facilities Agreement
to be a fairly flexible agreement. We undergo an annual
negotiation of cleanup milestones, so we do not see the
accelerated cleanup causing a change in this flexibility, and
we are prepared to work with DOE to meet the cleanup
requirements of the State of Tennessee.
Mr. Greenwood. Thank you. Does the gentleman, Mr.
Strickland, wish to inquire, or shall we adjourn the hearing?
Mr. Strickland. No, thank you.
Mr. Greenwood. Thank you. We thank each of you for coming
up to Washington and for your testimony, and wish you well, and
the committee hearing is adjourned.
[Whereupon, at 11:45 a.m., the subcommittee was adjourned.]
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