National Governors Association Federal Facilities Task Force

States-Only Session

June 21, 2005Washington, DC

Prepared by Ross & Associates Environmental Consulting, Ltd., for submission under Contract with the National Governors’ Association Center for Best Practices. The preparation of this document was financed in

part by funds provided by the U.S. Department of Energy, Grant No, DE-FG02-97FT34337

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This Morning’s Agenda

• Introductory overview (these slides)

• Roundtable of states• Discussion of key issues

– NRDA– Waste Management– Funding– Long-term Stewardship– Others?

• Fall Intergovernmental (5-group) Meeting with DOE

• NGA Policy NR-8 Env.Compliance at Fed.Facilities

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Introductory Overview

• What’s new since we last met?

• Things to consider for the Panel discussions

• additional topics?

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What’s new since we last met?

• Samuel Bodman nominated and confirmed as Secretary of Energy

• Paul Golan leaves (to RW-2)

• Charlie Anderson of SRS is new EM-2

• James Rispoli nominated for EM-1– From DOE Office of Engineering & Construction

Mgmt.

• Bruce Carnes (Assoc Deputy Secretary): – EM “makes promises it can’t keep”

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What’s new—In Congress (1)

• FY2006 Budget request to Congress – Mark Frei to provide update today

• House Energy and Water Appropriations subcommittee dissatisfied with EM’s 5-year funding plan; requests quarterly updates

• Senate Energy and Natural Resource committee: require DOE to report on plans to develop a facility to “store” GTCC.

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What’s New—In Congress (2)

• Congress rejects transfer of environmental responsibilities to NNSA in FY’06

• Doc Hastings (R-WA), Chair, House Cleanup Caucus– “…funding saved by the early closure…should be

redirected in the FY 2007 budget to accelerate cleanup activities at other sites…”

• Domenici (R-NM): rethink the compact system?

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What’s New (Task Force Initiatives)

• 5-group letter to Sec. Bodman (3/28/05) – 5 priorities:

• Funding• Waste Disposition• Long-Term Stewardship• End States Initiative• Natural Resource Damage Assessment

• Secretary Bodman’s response (4/26/05)– “…it is my intention to continue this cooperative

relationship…”

• Should we try to engage him? If so, how?

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What’s New—Panel Discussion Topics

• Natural Resource Damage Assessment

• Waste Management

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What’s New—Natural Resource Damage Assessment

• Conference calls with Matthew Duchesne, DOE– DOE-EM meeting in January on NRDA– Set of 17 research questions generated– Draft answers in review at DOJ

• Interior—Formal advisory committee on NRDA launched Feb.2005

• EIS—if labeled “Irretrievable commitment of resources”—no damages recoverable

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Natural Resource Damage Assessment

• Today’s panel: – DOE, DOD, Interior, NOAA, EPA, State (OH)

• How are we doing?– Lessons learned? Best Practices?

• What’s needed to make more progress?

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What’s New—Waste Management

• FEDRAD 2005 conference (St.Louis)– Targeted mainly at vendors

• “LLW and MLLW National Business Strategy”

• Waste Management panel tomorrow

• Florida Int’l Univ—waste data?

• DOE Advance Notice of EIS for GTCC– Comments provided by NV and WA

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Waste Management (history)

• WM is the founding reason for this Task Force

• WM is one of our five priorities per letter to Secretary Bodman

• Original waste stream data was collected by DOE at states’ behest

• Analysis led to “mileage charts” – what waste moves where, and why?

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Waste Management (recent history)

• SSAB chairs’ letter (Nov.2004)– Identified “vulnerabilities in existing waste

disposition assumptions”• E.g., pre-1970 TRU waste• Orphan waste

– Concerns of potential “gridlock”– Recommended a national forum by the end

of 2005 to develop solutions to DOE’s system-wide waste and material disposition challenges.

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Waste Management Desired outcome?

• What would you like to see come out of this panel? Ideas--– Set in motion meaningful interaction with states on

DOE’s National Disposition Strategy?– Ensure states are in review loop on new data

collection effort?– Reemphasize the importance of being able to see the

big picture of waste movement?– Ensure focus on vendors is not at expense of states?– Other?

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What’s New—Institutional Controls

• DOE Draft guidance for implementing institutional controls– Comments from OR

• Env.Law Institute/RFF publication: – Provides framework for costs of ICs

• UECA law enacted in nine states– IA, KY, MD, ME, NB, NV, OH, SD, WV

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What’s New—other

• NAS studies (Kevin Crowley)– Risk and Decisions about Disposition of TRU and HLW

– Improving the Characterization and Treatment of Radioactive Waste for the DOE’s Accelerated Site Cleanup Program

– status: Management of Certain Radioactive Waste Streams Stored in Tanks at Three DOE Sites

• End States initiative (Bob Goldsmith)—progress at the site level

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What’s New--Site Specific• CO:

– Rocky Flats cleanup nearing completion– DOE drops objection to CO covenants law

• NM: – Final RFP for LANL management contractor issued– WIPP: EPA recertification process ongoing – Louisiana Energy Services—U enrichment plant

• OH: – Fernald silo waste to Texas (WCS facility)– Fernald CAB extended to March 2006 pending DOE-

LM’s Local Stakeholder Organization

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What’s New--Site Specific (2)

• NY: – West Valley ROD--June 9, 2005

• LLW & MLLW to Commercial /NTS / Hanford• HLW stored on-site as vitrified waste in canisters

pending a geologic repository. (70 FR 35073)• TRU decision deferred

• WA: – I-297 court case– 34 m3 of TRU allowed in from Battelle, Ohio– Vit Plant: seismic problems?– Hanford budget– Waste reclassification issue

• Various: challenges to DOE’s contracting process

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Discussion

• 5 priorities: – Funding– Waste Disposition– Long-Term Stewardship– End States Initiative– Natural Resource Damage Assessment

• Whether & How to engage Bodman; Rispoli?

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The End

• On to Roundtable of states

• Documents available at:

www.fftfcleanupnews.org

(Slides with backup information follow)

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NRDA research questions (DOE-EM)

1. Exceptions to Liability: Are there any exceptions to a responsible party’s liability for injury to natural resources?

2. Private Parties: Can private persons bring a claim for injuries to natural resources under CERCLA?

3. Private Property: Can trustees recover damages for injuries to privately owned natural resources?

4. Citizen Suits: Can private citizens sue to enforce CERCLA’s trust responsibilities?

5. Groundwater: Is groundwater a public resource subject to trustee action under CERCLA, or a privately owned natural resource subject to action under the Federal Tort Claims Act?

6. Scope of Trust: What is the scope of resources for which any given state or tribal trustee may bring an NRD claim under CERCLA?

7. Multiple Trustee Involvement at DOE Sites: May individual trustees participate in deliberations and decisions regarding issues and resources that are outside their specific trust responsibilities?

8. Use of Recovered Damages: For what purposes may a trustee use damages recovered for injury to natural resources?

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NRDA research questions (2)9. DOI’s NRDA Regulations: What is the effect of following or not following the

Department of the Interior’s natural-resource-damage-assessment regulations?

10. NRDA Procedures: What procedures should EM sites follow when performing a Natural Resource Damages Assessment (NRDA)?

11. DOE’s Dual Role as Responsible Party and Natural Resource Trustee: What are DOE’s responsibilities as a natural-resource trustee at sites where it is also a responsible party?

12. Process and Timing: What is the process for implementing DOE’s trustee responsibilities and when should implementation begin?

13. DOE Funding: To what extent and under what conditions may EM sites fund the trust-related activities of its co-trustees?

14. Settlement Enforcement: What is the mechanism for enforcing a settlement of natural-resource-damage claims when the settlement occurs outside of litigation?

15. Natural Resource Enhancement Credits: Is DOE entitled to credit where its administration of a particular site has actually enhanced rather than injured some of the natural resources on the site?

16. Drinking Water Standards: Is ground or surface water contamination that is below applicable drinking water standards “injured” for purposes of CERCLA’s natural-resource-damages provisions?

17. Trustee Interaction Models: In what form should DOE’s coordination and cooperation with co-trustees take place (e.g., trustee councils, Biological Technical Assistance Groups, etc.)?

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Dave Geiser’s Questions (Dec.2004)

• How many Superfund sites (federal and non-federal) do you have in your state? (in, or adjacent to, your government jurisdiction for local governments or reservations/properties for tribal nations)

• How many of those Superfund sites have been remediated and are in a surveillance and maintenance mode?

• What role(s) does the State (local government or tribal nation) have for those sites that have been remediated and are in surveillance and maintenance?

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Dave Geiser’s Questions (continued)

• For those in surveillance and maintenance what type of plan do they have and how is it enforced? – Do you have some best-in-class examples that could be

shared?

• For those in surveillance and maintenance what type of institutional controls do they have and how are they enforced? – Do you have some best-in-class examples that could be

shared?

• For those in surveillance and maintenance what type of funding arrangements are in place and how is that funding guaranteed?  – Do you have some best-in-class examples that could be

shared?

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Long-term Stewardship

KEY ISSUES FOR NGA TASK FORCE 1. Maximize cleanup to minimize need for LTS.

2. Implement enforceable institutional controls, including federal compliance with state covenant laws.

3. Identify mechanism for assured funding for LTS.

4. Clarify specific roles and responsibilities for implementing the components of LTS

5. Clarify other PSOs’ roles and responsibilities in LTS.

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Long-term StewardshipDESIRED OUTCOMES FROM THE MEETING 1. Make clear to DOE that LTS is not a settled issue as

far as states are concerned.

2. Secure full engagement with the Office of Legacy Management for policy dialogue with NGA working group.

3. Clarify who is the NNSA point of contact on LTS issues, and secure their cooperation.

4. Show DOE that the intergovernmental groups are coordinating on LTS issues.

5. Generate ideas for how to best use DOE’s Spring 2004 LTS conference.(never held)

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Planning the Implementation of Long-Term StewardshipFor a DOE Owned Site---Draft Miamisburg Mound Example

What’s Required?Functions/tasks/activities/

remedies

Who is Responsible?

Implementing it Overseeing itEnforcement Mechanism/Document

Funding Source

Funding Amount

($)

Funding Mechanism

For Imple-mentation

For Oversight

Preparation of initial LTS Plan

US DOE leadState/Local

government/Public

State/Local government.

O&MAgreement DOE DOE

To be determined

??

Engineered/physical controls, incl. Inspection & maintenance

DOE or successor Federal Agency

USEPA/StateO&M

Agreement DOE DOETo be

determined??

Institutional Controls, e.g., 1. zoning 2. building permits 3. deed notices 4. easement/covenant 5. well drilling restrictions etc.

Local governmentLocal government

DOE, Owner & Local government

DOE, Owner & Local government

State water agency

Overall: State/LocalLocal governmentLocal government

DOE/Local government

DOE, State/Local governmentState/Local government

State and Local Regulations; ROD (Quit Claim Deed) and Annual O&M Report

DOE DOETo be

determined??

Record keeping & reporting

DOE or successor Federal Agency

StateO&M

Agreement DOE DOETo be

determined??

Information managementDOE or successor Federal

Agency??

O&MAgreement

DOE DOETo be

determined??

Environmental monitoringDOE or successor Federal

AgencyState

O&MAgreement

DOE DOETo be

determined??

Emergency responseDOE with Federal/State and Local government

Local government/State/

Federal and USEPA

O&MAgreement DOE DOE

To be determined

??

Non-routine fixesDOE or successor Federal

Agency

State/Local government and

USEPA

O&MAgreement DOE DOE

To be determined

??

Public educationDOE or successor Federal

AgencyAll parties to O&M

AgreementO&M

AgreementDOE ??

To be determined

??

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Compliance monitoring DOE or successor Federal

AgencyState O&M

AgreementDOE DOE

To be determined

??

Enforcement of ICs and monitoring

DOE or successor Federal Agency (Primary)

State/Local governmentUSEPA/State

Federal/State and Local RegulationsROD (one and five year reviews)

DOE DOETo be

determined

Cultural resource management

Not Applicable ??

Periodic reassessment(including revision & update of LTS plan) Initial interval is: __? Years or as needed

DOE or successor Federal Agency

StateO&M

Agreement DOE DOETo be

determined??

Administration of funding

??(If trust, then trustee)

??O&M

Agreement DOE ??To be

determined??

NOTES: 1. The various functions of the “steward” could be carried out by more than one entity.2. This table does not distinguish between the entity that is responsible for the function and any agent (contractor) of that entity. 3. An additional level of detail beyond this table would be to identify what specific subdivision of the entities shown (i.e., DOE, Local Government, State,

EPA) would be responsible. 4. PRP means potentially responsible party (in general, this is DOE for a DOE-owned site).5. In general, funding mechanisms are not yet determined; therefore the responsible entity cannot yet be identified.6. The entity listed under “overseeing it” is intended to be the entity with legal oversight authority/responsibility. This is not meant to exclude informal

oversight by the public and/or other organizations.7. This document has not been reviewed by or concurred with by DOE-MEMP.

What’s Required?Functions/tasks/activities/

remedies

Who is Responsible?

Implementing it Overseeing itEnforcement Mechanism/Document

Funding Source

Funding Amount

($)

Funding Mechanism

For Imple-mentation

For Oversight

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Additional discussion topics(For this morning, tomorrow’s

NGA session, or future discussion)

• Observations from EPA

• A national forum?

• Geiser’s questions?

• Communication with DOE & transparency

• High level waste reclassification

• Future DOE budgets

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FY 2004 DOE-EM Budget (5/03)• FY-’04 budget proposes an increase to $7.24

billion from $6.99 billion approved for EM-’03 budget.

• Intergovernmental Group conference call with Jessie Roberson on February 11th to discuss the EM ’04 budget

• Changes to FY-’04 budget:– New office of Legacy Management– No Clean-up Reform Account– Etc. . .

• Performance measures included

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Corporate Performance Measures - EM Program

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List of DOE Project TeamsProject Team Project Manager

Getting More Performance from performance based contracts

Charlie Dan (RFETS)

Managing waste to reduce risk--other than SNF and HLW

Reinhard Knerr (Carlsbad)

Integrated/risk-driven disposal of spent nuclear fuel Christine Gelles (EM HQ)

Managing waste to reduce risk--high level waste Joel Case (INEEL)

Focusing EM resources on cleanup Mike Weis (EM HQ)

Safeguards and security/nuclear material consolidation Matt McCormick (Richland)

A cleanup program driven by risk-based end states Dave Geiser (EM HQ)

National FOCUS Project (small sites) Cynthia Anderson (Savannah)

Transportation Gary DeLeon (EM HQ)

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Risk-Based End States Project Team

• DOE Policy 455.1- “Use of Risk-Based End States,” approved July 15, 2003

• Final Guidance

• Draft Implementation Plan (August 2003)

• Other documents

• 7 conference calls

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National FOCUS Project Team(small sites)

• DOE Team Leader—Cynthia Anderson, DOE-SRS

• Kick-off call—January 15th

• Almost no substantive information provided to the Working Group in spite of repeated requests and assurances

• Other DOE Teams referred to the FOCUS team’s activities.

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Other-Than-SNF-and-HLWProject Team

• DOE Project Lead—Reinhard Knerr, DOE-Carlsbad

• Many documents shared with Working Group; excellent cooperation

• Many topics addressed by Project Team

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Other-Than-SNF-and-HLW

• Finalizing contract incentives language

• Nat’l Consolidation and Acceleration Facility (NCAF) for LLW, MLLW, and TRU waste -- dropped

• TSCA incinerator – process to improve access

• Orphan waste data nearly final

• Corporate Board idea dropped

• Status of “rejected” options to be clarified in Project Closeout Report

• Project ended November 2003

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States-Only Discussion(5/03)

1. Project Team interactions2. State-DOE Dialogue

– How’s it going? Is it collaborative?– Increased role of DOE-HQ at site level: are states

engaged?– Is DOE unnecessarily increasing confidentiality of

documents?– Transfer of closed sites between EM and Legacy

Management and/or NNSA sites: how to engage other elements of DOE outside EM?

– Is the complex-wide picture visible?

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States-Only Discussion (5/03)(continued)

3. DOE Budget

4. Federal Facilities Task Force– Lessons-learned, information sharing conference

calls – Are we making best use of our collective voice?

5. Identify messages for Jessie Roberson