T.A. Winston, G. Mitchell, J. Coon
Ohio Environmental Protection Agency

States that host Department of Energy sites have been intensively involved with the Department for over 10 years. The early period was marked by litigation over site environmental problems and confrontations regarding state authority over federal facilities. With the signing of the Federal Facilities Compliance Act, the Department and the states moved to a period of collaboration to successfully achieve mixed waste site treatment plans within the three year time frame mandated by the Act. Today the states deal with the Department on a wide array of issues from budget to regulatory issues to equitable decisions on waste management. Based on these interactions, states are in a unique position to view the Department and it's continuing changes. This paper offers a state perspective on how the Department is doing in critical areas including efficiency, internal operations, working relationships and stakeholder interaction. It also provides a state view of the Department's strategic planning including the Accelerated Cleanup Plan, the DOE budget and recent initiatives such as new contracting approaches and the National Dialogue.

States that host Department of Energy sites have been intensively involved with the Department for over 10 years. The early period was marked by litigation over site environmental problems and confrontations regarding state authority over federal facilities. Years of secrecy and self regulation resulted in a weapons complex that was out of compliance with environmental regulations. Production activities resulted in the contamination of huge quantities of soil and groundwater and staggering inventories of radioactive and hazardous wastes. Substandard waste management practices resulted in contamination of citizens and the environment on a scale that is still difficult to grasp today. The Department was slow to recognize the intensity of local outcry over these problems. However, the national media helped to bring these issues to center stage.

In the early 1990's working relationships between DOE and the states started to improve. With the signing of the Federal Facility Compliance Act (FFCA), DOE and the states moved into a period of collaboration to successfully negotiate mixed waste site treatment plans for all DOE sites within the three-year time frame mandated by the Act. In this process the states also began to work more closely together in an attempt to solve the new technical, economic, and political challenges posed by waste management and cleanup at DOE sites.

Today the states deal with the Department on a wide array of issues from budget to regulatory compliance to equitable decisions on waste management. Based on these interactions, states are in a unique position to view the Department and it's continuing changes. This paper offers a state perspective on how the Department is doing in a number of critical areas that affect their ability to meet cleanup goals and compliance obligations. It also provides a state view of the Department's strategic planning including the Accelerating Cleanup: Focus on 2006 Plan, the DOE budget and recent initiatives such as revised contracting approaches and the National Dialogue.

In dealing with the Department over the years, states have been constantly confronted by the question -how fast can a department change? Before 1985, DOE and their predecessor agencies were charged with developing and maintaining the nuclear weapons complex. In the late 1980's the monumental task of environmental restoration, and in DOE's case this is larger than Superfund itself, was added to that list. If that wasn't enough of a challenge, in the 1990's DOE was told to do all these things efficiently and openly. This has resulted in a major challenge. On the one hand it is imperative that DOE change quickly to adapt to these new missions and expectations. On the other hand, large government departments do not change quickly. DOE may be changing as quickly as can be expected from a large department, but it probably isn't changing quickly enough to provide some of the critical direction that the environmental management program needs.

One of the central themes from states over the past decade has been that DOE must ask Congress for sufficient funds to achieve their compliance responsibilities. That has been our bottom line each year. But we have also seen a need for stable funding. From our perspective, long term stable funding is critical if any real progress is to occur. Stable funding will allow DOE to plan and complete work without constant uncertainty and continuous reevaluation. The states see the DOE sites, field offices, and contractors constantly running various budget scenarios at the direction of DOE headquarters. This is a major distraction and significantly reduces the ability and resources the sites have to accomplish real work. If DOE is to be successful in their cleanup efforts and in future budget cycles, they will have to demonstrate real progress in the field.

Stable funding does not mean additional funding. DOE's efforts to increase efficiency can make up for some reductions in funding but we must remember that efficiency gains take time and may even require an investment of funds to put new systems in place. In the past couple of years, DOE has looked very seriously at mortgage reduction opportunities that can achieve significant life cycle savings. These savings can be persuasive with Congress and the American taxpayer and help to enhance support for the cleanup effort. We worked closely with the Ohio Field Office in 1996 on the development of their 10 year plans for the Fernald and Mound sites which will save billions of dollars compared with previous cleanup schedules. The concept of the 2006 plan was also predicated on life cycle savings.

Some progress has been made in dealing with the huge legacy of waste materials from the weapons complex. The FFCA site treatment plans were a major first step in getting DOE and the states to work together to begin to address this challenge. However, as these discussions have expanded to include other wastes and special nuclear materials, we have seen great variations and disagreements in the amounts, types, classification, and locations of various wastes and nuclear materials. Current databases include the National Dialogue database, the 2006 Plan database, the Waste Management Programmatic Environmental Impact Statement (WM-PEIS) database and the contractor EM Integration database. Each was prepared for a different purpose and each has its own attributes and difficulties. For example, the 2006 Plan database was primarily generated in the field which has some inherent benefits. However definitions (of projects, for example) can be highly inconsistent across field offices. Further, the 2006 Plan database shows very little correlation between sending and receiving pairs of intersite shipments. On the other hand, it is unclear what relationship the WM-PEIS database has to site-level activity or the 2006 Plan database. In addition, because alternatives are described in terms of ranges of waste volume to be moved, the WM-PEIS database is only of limited use in examining intersite transfers. While data integrity and accuracy is important, presentation and organization of the data is also critical to support meaningful discussion. To that end, the contractor integration effort has produced baseline disposition maps and input/output charts (by site) that the states believe are an excellent way to concisely depict a wide array of data.

It is very clear that the pursuit of "perfect" data could become a never ending task. However, it is also clear that the data quality must be sufficient for both discussion with regulators and stakeholders and for decision making. In their current condition, DOE's data sources do not meet that test. Effective engagement of the states on waste and material disposition must start with data for which there is a high degree of confidence. If we are to be successful in dealing with this extremely complex and politically charged issue, we are going to need one set of consistent data that we can all use with confidence.

Over the next several years, DOE faces the difficult task of determining how to handle surplus plutonium, spent fuel, and a variety of radioactive wastes. The subject of equity in DOE's waste management arena has received considerable attention in recent years. States have been concerned about the piecemeal decision-making that has historically occurred and have sought to have decisions made with a full understanding of the overall context. No public forum currently exists to examine nuclear material and waste issues on a comprehensive basis, or to assess the cumulative impacts. At a meeting in early 1996, the states requested that DOE expand the universe of waste and materials for state attention to include the full range of pending DOE decisions. The adequacy of the data mentioned above will be critical in this regard. We must use some of the lessons learned from FFCA implementation and the successful negotiation of site treatment plans across the complex. Major components of that effort included the sharing of relevant data, the development of principles, agreements, or protocols for waste receipt, and the application of the principles to specific waste stream management alternatives. In order for DOE to be successful in the future management of nuclear wastes and materials, some process involving interested stakeholders in a continuing and substantive discussion of alternatives and values is imperative. DOE has considered a number of approaches including a "National Dialogue". Such a dialogue, if carefully designed and implemented, could help to promote a better public understanding and appreciation of these issues, the need to resolve them, and possible options for doing so. However, any goals of a dialogue should be clear and realistic. It should not be a decision-making process, but rather it should promote informed decision-making. Such a dialogue would not supplant the need for DOE to maintain separate continuing and substantive discussions with the states, both collectively and individually. Clearly, any output of broadly based and informed public discussion of these issues would be helpful to the states as well as DOE.

DOE has made great strides in moving toward a more open decision making process and involving stakeholders. This is a major shift from the old "decide, announce, and defend" approach that DOE had been using. DOE has embraced the concepts developed in the Federal Facilities Environmental Restoration Dialogue Committee (Keystone). Ohio has been very pleased with the success of the Fernald Citizens Advisory Board (Site Specific Advisory Board) in working towards consensus on the difficult issues of future use, cleanup levels, and waste disposal. Recognizing the importance of truly involving stakeholders results in cleanup projects that are implementable because the public is involved "up front" in the process. Stakeholders, regulators, DOE and contractors are educated in this effort which also has the added benefit of using resources more efficiently. Quite simply, because of DOE's more intensive stakeholder involvement, better decisions are being made.

Regulators (State and USEPA) and the Department have also made significant improvements in working relationships. Again, the old approach was to have DOE and contractors plan, design, announce, and defend cleanup proposals. By the time regulators received proposals and plans, significant time and resources were already invested. Today there is much more discussion and general agreement on conceptual ideas for cleanup prior to extensive engineering and design work. This effort again saves time and resources. Regulators now typically have access to a wide range of data at DOE sites on a real time basis, data that they would have to go to court to obtain only a decade ago. In addition, many states perform independent monitoring of DOE sites under an Agreement in Principle with the Department. These agreements and the actions carried out under them have helped build credibility for DOE's massive environmental program.

DOE has supported state to state interaction at several levels. This is a wise investment since DOE's ability to achieve it's environmental goals is inextricably linked to it's ability to reach accord with the States both individually and collectively. This is especially true in the area of inter-site waste and material shipments. With the passage of the Federal Facilities Compliance Act in 1992, states and DOE were given the challenge to work together to develop and approve site treatment plans and compliance orders for mixed wastes at over 40 DOE sites within the 3 year deadline mandated by the Act. Under the leadership of the National Governor's Association (NGA) states came together to collectively evaluate the many technical and policy issues associated with mixed waste management. In several areas including waste inventories, preferred management options and criteria for inter-site shipments, this dialogue between the states and with DOE was instrumental in achieving a satisfactory and timely resolution on an issue that had been stalled for many years. DOE has continued to use this effective forum with host states to discuss critical issues including the budget, the 2006 plan and numerous cross-site issues. DOE has also supported the State and Tribal Governments Working Group (STGWG), made up of 16 states and 8 Tribal nations impacted by the larger DOE sites, to discuss issues of common concern to tribal and state governments.

It is the states' view that, historically, there was very little communication, coordination, and sharing of ideas and success stories between DOE sites. In fact, the contractor management system at DOE sites provided an incentive for each site and contractor to solve their own problems. The "not invented here" philosophy was very prevalent across the complex. With shrinking cleanup budgets and more stakeholder/regulatory involvement, DOE has improved in the areas of technology demonstrations across the complex. In Ohio, we have seen the Ohio Field Office bring sites together to share technical and management success stories. However, there is still much more communication and coordination needed among the various field offices, the Department of Defense, contractors, and the private sector. There is still a "built in" incentive for DOE contractors to expend resources to solve problems at their site rather than look for solutions that already exist.

Nearly two years ago the Department of Energy embarked upon what has become the planning process for Accelerating Cleanup: Focus on 2006. Through this effort the Department is taking steps to enhance both the efficiency and management of their Environmental Management program. While states are supportive of this effort in principle, and optimistic about the potential for better planning and implementation to substantially improve the results of the Environmental Management Program, we are also concerned about the possible implications of such a planning process if it does not remain stubbornly rooted in the real world. This means that assumptions used in developing this complex acceleration plan must err on the side of history and not rely excessively on the yet unrealized productivity enhancements. And before rushing to establish new commitments across the complex, we must be certain that commitments already in place can be kept. Many intersite issues remain to be resolved even as they are linchpins to future success. Several of the planning assumptions are almost universally viewed as unrealistic and must be revised. A series of unrealistic assumptions could consign this effort to failure. Fundamentally, the states expect DOE to put forth a plan that drives results on the ground at the sites.

As states have watched and participated in this planning process, steady improvement has been discernible. Individual site plans are improving and many assumptions are becoming more credible. The Department does however have a great deal of work to do in combining the disparate information available to develop a cohesive and implementable plan that respects stakeholder values and the Department's obligations to the states.

To succeed in their environmental programs, DOE is heavily reliant on the performance of several key contractors and a myriad of subcontractors. Therefore, DOE contracting is an important part of the Environmental Management program's ultimate success. In the past, management and operations (M&O) contractors were used throughout the DOE complex. As many of the Department's sites began transition from bomb-making to the cleanup business and budgets became constrained, it quickly became apparent that M&O contracts lacked the incentives needed to efficiently pursue cleanup operations.

The Environmental Restoration Management Contracts (ERMC) were a first step in the restructuring of DOE's contractor relationships to shift the focus to the cleanup goal. Over the last several years the number of Management and Integration (M&I) contractors has increased and the incentives in these contracts have been cast and recast in an attempt to get the appropriate incentives in place to ensure that contractors seek and implement efficiencies whenever possible. Award fees are now in place at many sites so that contractors operate for little or no profit unless they perform. This movement is resulting in better performance in many areas, but room for improvement still remains. Better alignment of fees with expected work accomplished can incentivize performance and drive contractors to greater efficiency. M&I contractors are working to oversee the work of numerous subcontractors on sites in the hope that better managed work flow will lead to better accomplished work. Both DOE and contractors need to continue work on improving the mechanism in contracts that drive performance.

Privatization holds promise in some situations. However, a "force fit" should not be used when this concept is applied. Overall cost effectiveness in addition to an evaluation of liability and risk should be determining factors.

In 1996, the Advisory Committee on External Regulation of Department of Energy Nuclear Safety recommended that all aspects of safety at DOE nuclear facilities should be externally regulated by an existing agency. They also recommended that worker protection authorities should be transferred to the Occupational Safety and Health Administration. The Committee also said that states with authorized programs in regulation of environmental protection, facility safety, and worker protection should initiate or continue their regulatory role. Several state representatives participated in the Advisory Committee including Jim Payne of the Ohio Attorney General's Office. The preference for external regulation is consistent with the long held belief of most states that self regulation is a primary cause of the environmental, safety and health problems at DOE sites. However, care must be taken during any transition phase to not unduly disrupt the progress that is occurring. The states continue to hold that DOE should be subject to the same standards that apply to anyone else in the private or public sectors. Unfortunately, DOE's position on this issue has become unclear in the last year. At one time, DOE offered an aggressive timetable for external regulation but DOE actions, including recent litigation, bring DOE's commitment to external regulation into question.

The states view headquarter's role as one of setting the vision and mission for the Department and then assisting the field offices and sites in achieving goals consistent with the mission and vision. Headquarters is in the process of setting a vision for accelerating cleanup. However, what states see in too many instances is a headquarters that delays decision making on contracts and policy issues, causing work delays in the field. Decisions that we think should be made by the field office are elevated to headquarters where little visible action occurs and explanations for delay are not forthcoming. This has been especially true during the past year when headquarters was experiencing the turmoil and transition of staffing reductions. To be successful in the cleanup of DOE sites, headquarters needs to be more aligned with the field to remove obstacles and contribute more directly to the restoration effort. Headquarters needs to be a champion for its field programs as well as a dedicated parent.

So just how is DOE doing? That question is most appropriately answered with consideration of where DOE has been over the last two decades. It is easy for us in the states to indict DOE for each shortcoming we observe. But when we maintain the perspective of time, we have to acknowledge a DOE that is far more open and forthcoming than at any time in the past. A DOE that is accomplishing more environmental work, even if not enough, than at any other time in recent memory. DOE has changed for the better in many respects, but the magnitude of the environmental morass calls for far more improvement. Many of the points above highlight areas of some concern to the states, issues that will need to be addressed internally by DOE and in partnership with stakeholders across the country. The states collectively remain committed to working with DOE wherever necessary to aid in this effort.

These have been turbulent years at DOE. Extensive leadership changes have occurred throughout the organization including the highest levels. There has been massive institutional change including mission change, culture change, and new approaches to budget and planning. There is a continuing shift of focus to the field offices and away from headquarters. There have been budget reductions and the protracted uncertainty of reductions in force. But against this backdrop, real progress is occurring at many sites. In Ohio, DOE has worked with the regulators and the stakeholders to develop a clear path forward to achieve cleanup at the major sites, a cleanup that is implementable in terms of public support and achievable in terms of technical capability. At Fernald, the on-site disposal cell is under construction and many buildings have already come down. At Mound, industrial reuse has begun and plutonium contaminated soils have been removed from the old Miami Erie canal. Portsmouth, an active gaseous diffusion plant, has addressed many of its old landfills and hazardous waste management units. However, for progress to continue and accelerate, a number of factors will be key. First, stable funding is critical. Second, DOE must be totally open and transparent in its decisions. This will be all the more critical for those decisions relating to intersite transfers. Third, DOE must practice sound management and have management systems that are aligned with the goals of the program. Fourth, DOE must be prepared to make decisions, and many of those decisions will be difficult. Fifth, DOE headquarters must set the cleanup vision and then help the field offices achieve their goals. Sixth, DOE must use contracting mechanisms with incentives for efficiency and progress in the field. Seventh, DOE must be able to demonstrate progress and do a better job of getting "good news" stories out to counterbalance the "bad news" stories that inevitably occur because of problems or setbacks. None of these will be easy, but each one will be critical to the ultimate success of the program.

Finally, the states have demonstrated their commitment to work with DOE. Although it has been a rough road, over time a fairly mature working relationship has developed. It is in the best interests of the states, DOE, and the American public for successful interaction to continue.

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