Subcommittee on Oversight and Investigations
July 19, 2002
09:30 AM
2123 Rayburn House Office Building

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.

Printer Friendly

Comment On This Page

A Review of DOE's Accelerated Cleanup Program and State-Based Compliance Agreements.