[House Hearing, 107 Congress]
[From the U.S. Government Printing 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/
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                    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \9\ U.S. Department of Energy, A Review of the Environmental 
Management Program, (Washington, D.C.: Feb. 4, 2002).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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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