National Governors Association

1. National Governors Association May 22, 2007 Augusta, Georgia Federal Facilities Task Force 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.

2. Presentation Agenda • What’s new since our last meeting? • Meeting with Assistant Secretary Rispoli • Overview of recent waste management activities • New waste data • A few site-specific highlights • DOE-EM Budget • Issue updates • GNEP / siting studies • Yucca Mtn. • Long Term Stewardship • NRDA • Roundtable discussion • Reminder of what the five-group joint letter said to Secretary Bodman and Asst.Sec. Rispoli January 17, 2006. • Funding • Stakeholder involvement • Waste disposition • Long-term stewardship • Natural resource damage assessment

3. What’s New Task Force delegation meeting with Assistant Secretary Rispoli – May 2, 2007 Meeting theme: communication Opportunities and Action Items: • Mr. Rispoli asked the Task Force to propose how EM can communicate better with stakeholders knowing the constraints of the budget process. • Mr. Rispoli suggested we consider more frequent communication such as monthly or bimonthly calls. How can we take advantage of that suggestion and ensure calls are substantive? • Mr. Rispoli said his office is willing to talk about the Five Year Plan anytime. How should the Task Force take advantage of this offer to engage DOE?

4. Language in DOE-EM FY’08 Congressional budget document (p.12) “However, even with these numerous accomplishments, EM has experienced some setbacks. As with many complex and diversified programs, the challenges behind achieving highly visible and significant results are not always apparent. At the core of these setbacks are planning assumptions that have not materialized. For example, EM based its cleanup plans on such optimistic assumptions as: • Performance-based acquisition strategies and other initiatives would greatly improve the cost efficiency of performing cleanup work. • Maintaining a defined scope for the EM program with no additional work scope or emerging requirements. • Receiving flexibility from State regulatory officials to implement cost-effective disposition of EM waste and materials. However, these assumptions have not withstood the test of time. For example: • Regulatory permit and inter-site waste shipment approvals have been delayed or are still pending, leading to increased costs and delayed schedules at several sites. In particular, the passage and implementation of the FY 2005 National Defense Authorization Act language on tank waste disposition (Section 3116) was not factored into earlier plans.”

5. What’s New (Summer 2006) August 2006 Rispoli meeting • Budget • Possibility of separate meeting(s) about the EM budget discussed • Performance Measures • Contrary to some reports, Gold chart measures are not being revised • EM is running about 90% on budget/on schedule • EM is 100% projectized • Tutorial about EM’s performance-based project management tool—on tomorrow’s meeting agenda • Rispoli’s Key Messages • Safety – for the workforce and communities • Delivery on promises – Goal is to sustain at least a 90% on budget/on schedule record for EM’s cleanup projects • Human capital – Enabling DOE staff to deliver on promises

6. What’s New (2) Changes on the Org Chart • Linton Brooks out at NNSA • Bud Albright reportedly to replace David Garman as Under Secretary for Energy & Environment • Albright is minority staff director for House Energy & Commerce • Jill Sigal out as Asst. Sec. for Congressional & Intergovt. Affairs (WCM, 3/5/07) Strategic Plans • Office of Legacy Management: Strategic Plan • Office of Nuclear Energy: GNEP Strategic Plan Gaseous Diffusion Plants • Three-state meeting last month IAEA released new radiation symbol

7. Source: DOE-EH, May 15, 2007

8. Waste Management November 2006-May 2007 • DOE Draft National Waste Disposition Strategy • Draft document (Rev. 0) has been out for an extended comment period • State Comments were submitted 10/2006. Themes: • Data gaps and inconsistency exist in information provided • Mixed Low Level Waste disposition options not well developed • Cost is emphasized over all other factors, including safety • DOE planning to revise the Strategy this summer • Staff directed to use Technology Roadmap process as model for stakeholder coordination • Some milestones missed; Cleanup delays announced at both ‘major’ and ‘small’ sites--examples: • Major: Hanford, SRS, INL • Small: Brookhaven, W.Valley, ETEC, SLAC, Moab • First annual RadWaste Summit, Sept 4-7, Las Vegas • Replacement for FEDRAD meetings.

9. Waste Management – Data • Updated waste database released 5/2007 • Based on site submittals as of December 2006 • 676 waste streams reported • Includes waste from other PSOs for the first time • Waste from other PSOs represent 9% of waste volume, 46% of waste streams. • Does not include TRU(being done by Carlsbad office) • Does not include High Level Waste • Does not include some wastestreams, e.g.: • Any future GNEP waste (to be discussed in GNEP EIS) • Mound OU-1 waste • Waste from D&D projects • DUF6 byproduct • Moab, Utah waste • Unlined burial trenches at Hanford—estimated to hold ~500 million cubic meters of waste (WCM, 12/4/06) • Includes regulatory ‘flags’ (37 Red, 100 Yellow) • Data recently posted at WIMS website: http://wimsweb.hcet.fiu.edu/wims

10. Waste Management – Data (2) • Low Level Waste (LLW) • Total volume: 4.8 million cubic meters (FY’07-->closure, life cycle projections) • disposition: 80% on-site; 11% commercial; 1.1% TBD • Majority of waste located at Hanford, Oak Ridge, & SRS • Mixed Low Level Waste (MLLW ) • Total volume: 382,000 cubic meters • disposition: 68% on-site, 23% to commercial; 5% TBD • Majority of waste at Hanford & Oak Ridge (2 handouts)

12. Waste Management • Nevada opposes disposal of DUF6 byproduct at NTS • Greater-than-class-C waste: Notice of Intent for EIS delayed; scheduled for next month (6/2007); draft EIS scheduled for 1/08; disposal site selection by 12/08. (WCM, 1/15/07) • Fernald Silo Waste: stored at WCS in Texas • Draft Engineering and Technology Road Map released • Open for public comment through 6/30 • What we said in the Bodman/Rispoli letter • Much work remains to be done • Applaud effort to generate new waste database and draft a National Strategy • Regulators will continue to exercise appropriate flexibility, within the law, when consulted early and often.

13. Waste Management – Sites (1) Savannah River Site • Options for disposition of surplus Plutonium still being discussed Idaho National Lab • DOE’s appeal of Federal District Court opinion upholding 1995 Batt agreement pending.(WCM, July 31) • A-76 study controversy (WCM, 4/16/07) Hanford • New baseline cost estimate for the Hanford Vitrification Plant is $12.26 Billion • Court case on WA’s “Cleanup Priority Act” pending in 9th Circuit • EPA fined DOE $1.1 million (stipulated penalties) for problems at ERDF facility

14. Waste Management – Sites (2) Fernald • Fernald cleanup completed; DOE formally signed off on site closure (1/2007) Mound • Unanticipated levels of rad contamination found during excavation of OU-1 landfill Oak Ridge • DOE reconsidering accelerated disposition of facilities—Oak Ridge Integrated Facility Disposition Plan—for FY’09 budget request. • TSCA incinerator set to close in 2009

15. Waste Management – Sites (3) West Valley • DOE and regulators propose a new “way ahead” (WCM, 4/9/07) • Cleanup delayed(WCM, 4/16/07) WIPP • Received first Remote-handled TRU waste (1/2007) • Six shipments a week of RH-TRU waste are planned by the end of 2007 http://www.wipp.energy.gov/TeamWorks/index.htm Rocky Flats • Mineral rights purchased with $10 M appropriation • NRDA claims extinguished WCS (Andrews County, TX) • Submitted revised LLW disposal permit application

16. DOE-EM Budget • FY2007 Continuing Resolution signed in to law 2/19/07 • DOE’s FY2007 ‘Operating Plan’ Budget released 3/16/07 • EM budget ~$6.2 Billion, $350 Million above the request • $50 Billion increase in total life cycle cost of the cleanup program since last year’s budget submittal • “This is a staggering cost increase.” --Sen. Jeff Sessions, Senate Armed Services Strategic Forces Subcommittee, May 2 hearing (WCM, 5/7/07) • Rispoli says further increases not likely. • Budget document includes language explaining “setbacks” are due to “optimistic assumptions” • FY2008 budget proposal • Task Force conference call w/Mark Frei 2/6/07 • $5.655 billion requested for EM • Rispoli emphasizes “risk-based approach” in FY’08 allocations • What we said in the Bodman/Rispoli letter • Cleanup funding for remaining sites should be maintained, not cut, as a result of success of accelerated cleanup at sites such as Rocky Flats.

19. GNEP Update • FY2007 GNEP budget: • House would cut $250 M FY’07 funding request to $120 M; Senate increase funding above request. • Final budget ~$167 M (Advanced Fuel Cycle Initiative) • FY2008 request is $395 M • DOE-NE released the GNEP Strategic Plan, 1/2007 • GNEP Draft pEIS now scheduled for release 10/2007 • Still open for scoping comments - through 6/4/07 • Complex 2030 Draft pEIS scheduled for release 9/07

20. GNEP Update (2) Key Questions: • What waste would result from the GNEP facilities and operations? Where would it be generated, treated, disposed? • National Academy’s Nuclear and Radiation Studies Board meeting, April 4, received a presentation on GNEP waste streams and disposition options. • Presented by Argonne and INL staff • What are the life cycle funding needs for GNEP?

21. GNEP Siting Studies Proposed Site Location Teaming Consortia Atomic City, ID EnergySolutions, LLC Idaho National Laboratory, ID Regional Development Alliance, Inc Barnwell, SC EnergySolutions, LLC Savannah River Nat’l Lab., SC Econ. Devel. Partnership of Aiken and Edgefield Co. Hobbs, NM Eddy Lea Energy Alliance Roswell, NM EnergySolutions, LLC Morris, IL General Electric Company Paducah GDP, KY Paducah Uranium Plant Asset Utilization, Inc. Portsmouth GDP, OH Piketon Initiative for Nuclear Independence, LLC Oak Ridge Nat’l Lab., TN Community Reuse Organization of East Tennessee Hanford Site, WA TriDEC/Columbia Basin Consulting Group TOTAL of siting grants awarded: $10,458,242

22. GNEP Siting Studies--observations(1) • Studies looked at siting of two facilities: • Consolidated Fuel Treatment Center (CFTC), aka Nuclear Fuel Recycling Center (NFRC). • Advanced Burner Reactor (ABR), aka Advanced Recycling Reactor (ARR). • All studies found their locations suitable for the CFTC and the ABR. • The Hanford study went one step further and claimed that the existing FFTF could serve in the role of the Advanced Fuel Cycle Facility. • Major unknown is ownership of facilities • Studies acknowledge permitting requirements depend onownership: i.e., whether commercially or DOE-owned. Several of the studies described permitting requirements under both scenarios. • Many Uncertainties: Studies acknowledge that the operational and safety parameters of the proposed facilities are as yet undetermined. • Despite this, none of the studies concluded that permitting would be an issue.

23. GNEP Siting Studies--observations(2) • Waste: All studies concluded that waste streams, on-site storage of spent fuel, and disposition of hazardous waste would all be within permissible limits. • Construction costs for the proposed facilities were indeterminate due to lack of specific facility designs. • The most detailed construction costs were provided in the site study for the Morris site and totaled just over $2 billion. This number was reached by using information on construction costs for an Advanced Liquid Metal Reactor. • Many of the studies used data from previous siting surveys, EIS documents, etc. • At least two of the site studies found potential state legislative impediments: • Morris site: Illinois statute prohibiting construction of new nuclear power reactors • Kentucky statute prohibits the construction of a nuclear power facility until the Public Service Commission finds that the US government has identified and approved a demonstrable technology or means for the disposal of high level nuclear waste.

24. Yucca Mountain • Repository opening date now estimated to be no earlier than 2017 (2020—Clay Sell) • Proposed legislation re-submitted to Congress, 3/2007 • Bill is nearly identical to the 2006 version (S.2589) • DOE to discuss in plenary meeting tomorrow • Supplemental EISs due 10/2007 • Repository • Rail corridor • Federal Court of Claims awards $143 M to operators of three commercial reactors in ME, CT, MA for DOE’s failure to take spent fuel. (Sept 2006)

25. Long Term Stewardship • Task Force commented on draft LM Strategic Plan 1/2007 • LTS Roundtable & Training • April 4-6, 2007, San Diego, CA • Sponsored by EPA, ASTSWMO, ICMA, and National Association of Local Government Environmental Professionals (NALGEP) • LM transitioning 10 to 12 of about 120 sites to Local Government by 2011. (WCM, 5/7/07) • LM still responsible for any future contamination • What we said in the Bodman/Rispoli letter • Cleanup to unrestricted levels is the goal. Institutional controls are not a substitute for quality cleanup. • When ICs are necessary, they must be enforceable. • DOE must comply with State, Local, and Tribal laws for IC’s (E.g., UECA and related laws) • Dispersal of LTS to DOE-LM has resulted in less clarity. DOE should provide clear policy for every DOE office; and for any site where a portion of the site will transition to LTS. • DOE must seek new technology to complete cleanup at sites not cleaned to unrestricted levels. • Certainty/duration of funding for LTS should match certainty/duration of residual risk. • DOE must work with the intergov’t groups to ensure clarity of responsibility, enforcement, and funding for LTS plans.

26. Natural Resource Damage Assessment • DOE announced it would start an assessment at Hanford • DOJ then argued in Federal Court that it is premature for non-federal trustees to file legal claims until DOE has made final cleanup decisions (WCM, 4/30/07) • FACA committee (convened by Interior) still meeting • No information forthcoming on NRDA policy from DOE-HQ • Answers to the 18 questions of May 2005 never released • NRDA developments at other sites? • Any developments at STGWG meeting? • What we said in the Bodman/Rispoli letter • DOE should increase amount of attention paid to NRDA • DOE should work proactively & cooperatively to address NRDA issues as early as possible • Injury assessment and restoration should be integrated into remediation planning • All DOE offices should follow existing DOE policy on NRDA

27. Other issues covered in letter to Bodman & Rispoli (January 2006) Stakeholder Involvement • DOE should re-engage stakeholder groups in national level discussions of EM policies and decision-making processes. • Full engagement of stakeholders and transparent decision-making should be explicitly re-established as the normal way EM conducts business. End States Initiative • Is complete at many sites. • At some sites, vibrant discussions should continue without being driven from Headquarters. • DOE must recognize links between cleanup/end-state decisions; LTS; and natural resource damages.

28. Roundtable Discussion • What’s happening at your site? • GNEP siting studies? • Waste management issues? • NRDA activities? • Long-term stewardship activities? • New or emerging issues? • Task Force messages and priorities • Next move following Rispoli meeting? • What changes/new messages do you suggest for our communication to DOE? • How should we communicate Task Force priorities this year?

29. The end www.fftfcleanupnews.org

30. Long Term Stewardship • DOE-LM Draft Strategic Plan - Comments due January 2 • DOE-LM reorganization

31. Source: Congressional budgets; DOE-EM 5-Year Plan

32. NRDA research questions (DOE-EM; May 4, 2005) • Exceptions to Liability: Are there any exceptions to a responsible party’s liability for injury to natural resources? • Private Parties: Can private persons bring a claim for injuries to natural resources under CERCLA? • Private Property: Can trustees recover damages for injuries to privately owned natural resources? • Citizen Suits: Can private citizens sue to enforce CERCLA’s trust responsibilities? • 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? • Scope of Trust: What is the scope of resources for which any given state or tribal trustee may bring an NRD claim under CERCLA? • 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? • Use of Recovered Damages: For what purposes may a trustee use damages recovered for injury to natural resources?

33. NRDA research questions(2) • DOI’s NRDA Regulations: What is the effect of following or not following the Department of the Interior’s natural-resource-damage-assessment regulations? • NRDA Procedures: What procedures should EM sites follow when performing a Natural Resource Damages Assessment (NRDA)? • 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? • Process and Timing: What is the process for implementing DOE’s trustee responsibilities and when should implementation begin? • DOE Funding: To what extent and under what conditions may EM sites fund the trust-related activities of its co-trustees? • Settlement Enforcement: What is the mechanism for enforcing a settlement of natural-resource-damage claims when the settlement occurs outside of litigation? • 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? • 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? • 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.)?

34. Interim Storage • Section 313, H.R. 5427 (Energy & Water Appropriations), added by Sen. Domenici with support from Sen. Reid (June 2006) • 31 states eligible for a “consolidation and preparation facility” • Spent fuel and high-level waste eligible • Could be sited at any federal property or any property available from willing seller • No state or local veto • Aggressive schedule • 17 Governors oppose interim storage idea • Letter sent to House and Senate Appropriations committees (Nov 2006) • Ten state Attorneys General also oppose legislation • Dozens of citizens groups opposed • Secretary Bodman skeptical of idea of siting several facilities • Utah: Goshute proposal dead (?) • Utah pays tribe’s legal costs for fighting state laws found unconstitutional.

35. Governors singing letter opposing interim storage provision (Sec. 313) (November 2006) • Governor Janet Napolitano, Arizona • Governor M. Jodi Rell, Connecticut • Governor Jeb Bush, Florida • Governor Rod Blagojevich, Illinois • Governor Kathleen Sebelius, Kansas • Governor John Baldacci, Maine • Governor Jennifer M. Granholm, Michigan • Governor Tim Pawlenty, Minnesota • Governor Haley Barbour, Mississippi • Governor John Lynch, New Hampshire • Governor Jon S. Corzine, New Jersey • Governor George E. Pataki, New York • Governor Michael F. Easley, North Carolina • Governor Brad Henry, Oklahoma • Governor Theodore R. Kulongoski, Oregon • Governor Mark Sanford, South Carolina • Governor Dave Freudenthal, Wyoming

36. Other • NNSA issues NOI for “Complex 2030” Programmatic EIS • National Academies’ study on TCE (WCM, Aug.7.p.7)

37. [previous version of roundtable discussion topics] • News from your state • Waste management -- progress and issues • FY2007 budget • DOE funding of state oversight activities • Activities at your site related to: • Long-term stewardship • DOE’s End States initiative • NRDA • other initiatives of interest • Emerging issues? • Policies, disputes, lessons-learned, priorities? • esp. thosewith ramifications beyond a single state

38. Long-term Stewardship • Uniform Environmental Covenant Act • Now enacted in 14 states plus DC and USVI • LTS Roundtable & Training • April 4-6, 2007, San Diego, CA • Sponsored by EPA, ASTSWMO, ICMA, and National Association of Local Government Environmental Professionals (NALGEP) • Abstracts due 11/30/06

39. LTS: Status of UECA

40. NGA Federal Facilities Task Force ~ AgendaNovember 30, 2006 • Task Force messages and priorities • What changes/new messages do you suggest for our communication to DOE? • How should we communicate Task Force priorities this year? • Topics or activities for Task Force consideration? • Future meeting format, topics, location?

41. 5-group Joint meeting • Joint messages and priorities • What changes/new messages do you suggest for our communication to DOE? • How should we communicate priorities this year? • Topics or activities for the groups’ consideration? • Future meeting format, topics, location?

43. Waste Management - Sites • DOE-IG Audit suggests direct disposal of Cs/Sr capsules without vitrification may not be viable or cost-effective, rendering this waste “orphan.” (August 2006)

44. Issues • Global Nuclear Energy Partnership (GNEP) • Yucca Mountain • Gaseous Diffusion Plants • NRDA • LTS • DOE-NNSA “Complex 2030” • Interim storage proposals

45. Waste Management – High Level Waste Waste Incidental to Reprocessing • NRC determined DOE’s plans for Idaho tank waste provide “reasonable assurance” that criteria to reclassify the waste as low-level waste will be met. (WCM, Oct. 30) • After formal determination of “WIR,” will allow grouting residual tank waste in place • DOE~NRC in dispute about advisory role in “WIR” determinations (WCM, August 14)