Waste Cleanup
Implications of Compliance Agreements on DOE's Cleanup Program Gao ID: GAO-02-852T July 19, 2002Compliance agreements between the Department of Energy (DOE) and its regulators specify cleanup activities and milestones that DOE has agreed to achieve. The 70 compliance agreements at DOE sites vary, but can be divided into three main types. These are: (1) agreements specifically required by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to address cleanup of federal sites on EPA's national priorities list or by the Resource Conservation and Recovery Act of 1976 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. DOE reported completing about 80 percent of its milestones by the time originally scheduled in the agreements. The cost of complying with these agreements is not specifically identified in the DOE budget submitted to 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. Compliance agreements are site-specific and are not intended to provide a mechanism for DOE to use in prioritizing risks among the various sites. 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 sites.
GAO-02-852T, Waste Cleanup: Implications of Compliance Agreements on DOE's Cleanup Program
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United States General Accounting Office:
GAO:
Testimony:
Before the Subcommittee on Oversight and Investigations, Committee on
Energy and Commerce, House of Representatives:
For Release on Delivery:
Expected at 9:30 a.m., EDT:
Friday, July 19, 2002:
Waste Cleanup:
Implications of Compliance Agreements on DOE's Cleanup Program:
Statement of (Ms.) Gary L. Jones:
Director, Natural Resources and Environment:
GAO-02-854T:
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. [Footnote 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.
My testimony is based on our report to you on the status and
implications of DOE‘s compliance agreements, which you are releasing
today. [Footnote 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.
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. [Footnote 3]
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.
[Footnote 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.
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.
[Footnote 5] Other stakeholders advocate their views through various
public involvement processes including site-specific advisory boards.
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:
Type of agreement: Agreements specifically required to implement CERCLA
and RCRA requirements;
Number of agreements: 29;
Number of sites: 20;
Number of enforceable milestones: 5,251.
Type of agreement: Court-ordered agreements resulting from lawsuits;
Number of agreements: 6;
Number of sites: 6;
Number of enforceable milestones: 146.
Type of agreement: All other agreements;
Number of agreements: 35;
Number of sites: 12;
Number of enforceable milestones: 1,789.
Type of agreement: Total;
Number of agreements: 70;
Number of sites: 23[A];
Number of enforceable milestones: 7,186.
[A] The numbers in this column do not add because many DOE sites have
more than one agreement.
Source: GAO analysis of DOE data.
[End of table]
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):
Site and state: Hanford (including Office of River Protection),
Washington;
Current EM lifecycle cleanup estimate: $62,097;
Number of enforceable milestones[A]: 1,080;
Number of milestones completed: 825;
Number of milestones completed on original date[B]: 743;
Percent of completed milestones meeting original due date: 90.
Site and state: Savannah River, South Carolina;
Current EM lifecycle cleanup estimate: $37,809;
Number of enforceable milestones[A]: 714;
Number of milestones completed: 556;
Number of milestones completed on original date[B]: 264;
Percent of completed milestones meeting original due date: 47.
Site and state: Idaho Falls, Idaho;
Current EM lifecycle cleanup estimate: $27,881;
Number of enforceable milestones[A]: 428;
Number of milestones completed: 334;
Number of milestones completed on original date[B]: 312;
Percent of completed milestones meeting original due date: 93.
Site and state: Oak Ridge, Tennessee;
Current EM lifecycle cleanup estimate: $8,456;
Number of enforceable milestones[A]: 846;
Number of milestones completed: 513;
Number of milestones completed on original date[B]: 360;
Percent of completed milestones meeting original due date: 70.
Site and state: Rocky Flats, Colorado;
Current EM lifecycle cleanup estimate: $7,705;
Number of enforceable milestones[A]: 119;
Number of milestones completed: 62;
Number of milestones completed on original date[B]: 59;
Percent of completed milestones meeting original due date: 95.
Site and state: Fernald, Ohio;
Current EM lifecycle cleanup estimate: $3,341;
Number of enforceable milestones[A]: 1,075;
Number of milestones completed: 611;
Number of milestones completed on original date[B]: 558;
Percent of completed milestones meeting original due date: 91.
[A] 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.
[B] The number of milestones completed on the original due date is the
total of all milestones satisfactorily completed by 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.
[End of table]
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 [Footnote 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.
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:
Site and state: Hanford, Washington;
Milestones missed: 13;
Enforcement actions taken: 2;
Monetary penalty paid: $100,000[A].
Site and state: Idaho Falls, Idaho;
Milestones missed: 4;
Enforcement actions taken: 2;
Monetary penalty paid: $970,000[B].
Site and state: Portsmouth, Ohio;
Milestones missed: 2;
Enforcement actions taken: 2;
Monetary penalty paid: $292,000.
Site and state: Fernald, Ohio;
Milestones missed: 7;
Enforcement actions taken: 3;
Monetary penalty paid: $250,000.
Site and state: Oak Ridge, Tennessee;
Milestones missed: 2;
Enforcement actions taken: 2;
Monetary penalty paid: $100,000.
Site and state: Rocky Flats, Colorado;
Milestones missed: 2;
Enforcement actions taken: 2;
Monetary penalty paid: $100,000.
Site and state: Total;
Milestones missed: 30;
Enforcement actions taken: 13;
Monetary penalty paid: $1,812,000.
[A] 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.
[B] 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.
[End of table]
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
[Footnote 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.
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):
DOE Site: Hanford;
Full requirements estimate, Compliance[A]: [Empty];
Full requirements estimate, Total: [Empty];
Target estimate, Compliance[A]: [Empty];
Target estimate, Total: [Empty].
DOE Site: Richland;
Full requirements estimate, Compliance[A]: $429.6;
Full requirements estimate, Total: $958.4;
Target estimate, Compliance[A]: $265.5;
Target estimate, Total: $721.8.
DOE Site: River Protection;
Full requirements estimate, Compliance[A]: $987.1;
Full requirements estimate, Total: $1,149.7;
Target estimate, Compliance[A]: $685.2;
Target estimate, Total: $838.0.
DOE Site: Idaho Falls;
Full requirements estimate, Compliance[A]: $366.6;
Full requirements estimate, Total: $643.1;
Target estimate, Compliance[A]: $313.6;
Target estimate, Total: $540.6.
DOE Site: Savannah River;
Full requirements estimate, Compliance[A]: $294.5;
Full requirements estimate, Total: $1,411.1;
Target estimate, Compliance[A]: $288.4;
Target estimate, Total: $1,268.5.
DOE Site: Oak Ridge;
Full requirements estimate, Compliance[A]: $424.6;
Full requirements estimate, Total: $741.7;
Target estimate, Compliance[A]: $405.5;
Target estimate, Total: $668.3.
[A] 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.
[End of table]
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. [Footnote 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.
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.
[Footnote 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.
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; [Footnote 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.
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. [Footnote 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.
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.
[End of section]
GAO Contact and Staff Acknowledgment:
For future contacts regarding this testimony, please contact (Ms.) Gary
Jones at (202) 512-3841. Chris Abraham, Doreen Feldman, Rich Johnson,
Nancy Kintner-Meyer, Tom Perry, Ilene Pollack, Stan Stenersen, and Bill
Swick made key contributions to this report.
[End of section]
Footnotes:
[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.
[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).
[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.
[4] Mixed wastes are wastes that contain both radioactive materials
subject to the Atomic Energy Act and hazardous wastes, such as
degreasing solvents.
[5] In a few instances, other stakeholders have become signatories to
compliance agreements in the settlement of ongoing litigation brought
against DOE.
[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.
[7] Transuranic waste contains man-made radioactive elements with
atomic numbers higher than that of uranium, such as plutonium.
[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).
[9] U.S. Department of Energy, A Review of the Environmental Management
Program, (Washington, D.C.: Feb. 4, 2002).
[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.
[11] Currently, DOE classifies this high-level waste based on the
treatment process that created the waste.
[End of section]
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