I

104TH CONGRESS

1ST SESSION H. R. 2110

To provide leadership, improved efficiencies, and regulatory clarity for Department of Energy waste management and environmental restoration efforts

at the Hanford Reservation and certain other Defense Nuclear Facilities.

IN THE HOUSE OF REPRESENTATIVES

JULY 25, 1995

Mr. HASTINGS of Washington (for himself, Mr. DICKS, Mr. NETHERCUTT,

Ms. DUNN of Washington, Mr. WHITE, Mr. BUNN of Oregon, Mr. TATE,

Mr. METCALF, Mrs. SMITH of Washington, and Mr. COOLEY) introduced

the following bill; which was referred to the Committee on Commerce,

and in addition to the Committees on National Security, and Resources,

for a period to be subsequently determined by the Speaker, in each case

for consideration of such provisions as fall within the jurisdiction of the

committee concerned

A BILL

To provide leadership, improved efficiencies, and regulatory

clarity for Department of Energy waste management

and environmental restoration efforts at the Hanford

Reservation and certain other Defense Nuclear Facilities.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Enhanced Environ3 mental Cleanup and Management Demonstration Act of

4 1995’’.

5 SEC. 2. FINDINGS AND PURPOSES.

6 (a) FINDINGS.—Congress hereby finds that:

7 (1) Defense Nuclear Facilities were used to

8 produce nuclear weapons materials to defend the

9 United States in World War II and thereafter.

10 These facilities played a critical role in securing the

11 defense and overall welfare of the country.

12 (2) Defense Nuclear Facilities are now among

13 the most contaminated sites in the country. Many

14 are listed on the National Priorities List compiled

15 pursuant to the Comprehensive Environmental Re16 sponse, Compensation, and Liability Act of 1980.

17 Contamination and inadequate waste management

18 practices at Defense Nuclear Facilities pose threats

19 to workers, surrounding communities, and the envi20 ronment.

21 (3) Although the Department has begun to ad22 dress the contamination and manage its waste, it

23 has achieved too little progress for the significant

24 amount of money spent.

25 (4) Problems with environmental restoration

26 and waste management at Defense Nuclear Facili-
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1 ties are attributable to a number of factors. Among

2 these is inefficient management by the Department

3 at headquarters and at the Defense Nuclear Facili4 ties, including outmoded contracting procedures,

5 lack of competition, cumbersome bureaucratic proc6 esses, and the lack of a clear chain of command. All

7 of these things have contributed to confusion and in8 efficiency at many Defense Nuclear Facilities.

9 (5) Internal orders issued by the Department of

10 Energy often hinder compliance with environmental

11 laws and add unnecessary cost to environmental res12 toration.

13 (6) Regulatory requirements applicable to De14 fense Nuclear Facilities can be complex and, at

15 times, redundant. Frequently, the Department is ac16 countable to several regulatory agencies.

17 (7) Cleanup decisions are often made without

18 consideration of the future land uses.

19 (b) PURPOSES.—The purposes of this Act are to re20 quire significant regulatory reform measures, and to re21 quire that Defense Nuclear Facilities be managed more

22 efficiently.

23 SEC. 3. DEFINITIONS.

24 For purposes of this Act:
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1 (1) The term ‘‘adjoining State’’ means any

2 State other than a host State, the border of which

3 is located within 50 miles of a Defense Nuclear Fa4 cility.

5 (2) The term ‘‘Defense Nuclear Facility’’ means

6 a former or current Defense nuclear production fa7 cility now owned and managed by the Department of

8 Energy.

9 (3) The term ‘‘Department’’ means the Depart10 ment of Energy.

11 (4) The term ‘‘environmental agreement’’

12 means an agreement, including an interagency

13 agreement, between the Department of Energy and/

14 or the Environmental Protection Agency that sets

15 forth requirements and schedules for achieving com16 pliance with Federal or State environmental laws.

17 (5) The term ‘‘Hanford Reservation’’ means the

18 Defense Nuclear Facility located in southeastern

19 Washington owned and managed by the Department

20 of Energy.

21 (6) The term ‘‘host State’’ means a State with

22 a Defense Nuclear Facility located within its bound23 aries that is subject to this Act.

24 (7) The term ‘‘interagency agreement’’ means

25 an agreement entered into pursuant to the provi-
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1 sions of section 120(e) of the Comprehensive Envi2 ronmental, Response, Compensation, and Liability

3 Act of 1980 (42 U.S.C. 9620(e)).

4 (8) The term ‘‘Land Use Council’’ means, with

5 respect to a Defense Nuclear Facility, a congression6 ally chartered council with the authority to develop

7 a future land use plan at such facility.

8 (9) The term ‘‘Secretary’’ means the Secretary

9 of Energy.

10 (10) The term ‘‘Site Manager’’ means a Presi11 dentially appointed Department of Energy official

12 delegated with full authority from the Secretary to

13 oversee and direct all operations at a Defense Nu14 clear Facility.

15 (11) The terms ‘‘TPA’’ and ‘‘Tri-Party Agree16 ment’’ mean the Hanford Federal Facility Agree17 ment and Consent Order as amended among Wash18 ington State, the Department, and the Environ19 mental Protection Agency.

20 SEC. 4. APPLICABILITY.

21 (a) HANFORD RESERVATION.—The Department’s

22 Hanford Reservation in southeastern Washington shall be

23 subject to this Act.

24 (b) OTHER DEFENSE NUCLEAR FACILITIES.—A

25 Governor of a State hosting a Defense Nuclear Facility
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1 the fiscal year 1995 environmental management budget

2 of which was $500,000,000 or more may submit a request

3 to the President that the facility be covered by the terms

4 of this Act. Within 60 days after receipt of such a request,

5 the President shall, unless the President determines that

6 such application is not in the national interest, appoint

7 a Site Manager for the facility pursuant to section 5.

8 Thereafter, such Defense Nuclear Facility shall be subject

9 to this Act.

10 SEC. 5. SITE MANAGER.

11 (a) POLICY.—The President shall appoint, within 60

12 days after enactment of this Act, a Site Manager for the

13 Hanford Reservation. For other Defense Nuclear Facili14 ties, the President shall appoint a site manager, within

15 60 days of receipt of a request from the Governor of a

16 host State submitted pursuant to section 4(b). The Site

17 Manager shall be appointed from a list of 3 candidates

18 for such position to be provided by the Secretary.

19 (b) SCOPE.—In addition to other authorities provided

20 for in this Act, the Site Manager for a Defense Nuclear

21 Facility shall have full authority to oversee and direct all

22 operations at the facility including the authority to—

23 (1) enter into and modify contractual agree24 ments to enhance environmental cleanup and man25 agement at the Defense Nuclear Facility;
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1 (2) manage congressionally appropriated envi2 ronmental management funds allocated to the De3 fense Nuclear Facility, with the ability to transfer

4 funds among accounts in order to facilitate the most

5 efficient and timely cleanup of the Facility;

6 (3) negotiate amendments to the Tri-Party

7 Agreement or other environmental agreements for

8 the Department;

9 (4) manage Department personnel at the Facil10 ity; and

11 (5) carry out recommendations of the Depart12 ment of Energy Office of Environmental Health and

13 Safety where the Site Manager determines that

14 those recommendations are consistent with the goals

15 set forth in this Act, except that if the Site Manager

16 elects not to carry out such recommendations, the

17 Site Manager shall provide to the Governor of the

18 host State and the Secretary a statement of the rea19 sons therefor.

20 Decisions by the Site Manager to disregard recommenda21 tions made by the Department of Energy’s Office of Envi22 ronmental Health and Safety shall take effect unless the

23 President determines within 21 days of implementation of

24 the issuance of the decision that the particular decision

25 is not in the national interest and where the State concurs
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1 with the President’s opinion. In such cases, the President

2 and the host State shall certify within such 21-day period

3 that the recommendation does not add prohibitively to

4 costs at the site and that it meets important environ5 mental or human health or safety concerns.

6 (c) ADDITIONAL DUTIES.—The Site Manager for any

7 Defense Nuclear Facility subject to this Act shall prepare

8 the following for each remedy selected under the Com9 prehensive Environmental Response, Compensation, and

10 Liability Act of 1980 at such facility if the cost of the

11 remedy exceeds $25,000,000:

12 (1) An analysis of the incremental costs and in13 cremental risk reduction or other benefits associated

14 with the selected remedy.

15 (2) An assessment of the costs and risk reduc16 tion or other benefits, including protection of human

17 health or the environment, or the fostering of eco18 nomic development, associated with implementation

19 of the selected remedy.

20 (3) A certification of each of the following:

21 (A) That the assessment under paragraph

22 (2) is based on an objective and unbiased sci23 entific and economic evaluation.

24 (B) That the remedy will substantially ad25 vance the purpose of protecting human health
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1 or the environment against the risk addressed

2 by the remedy.

3 (C) That there is no alternative remedy

4 that is allowed by the statute that would

5 achieve an equivalent reduction in risk in a

6 more cost-effective manner.

7 The assessments and certifications required under

8 this paragraph may be set forth in several docu9 ments or a single document, as determined by the

10 Site Manager. Completion of such assessments and

11 certifications shall not delay selection or implemen12 tation of a remedy and shall be completed prior to

13 or concurrent with the selection of a remedy.

14 (d) CLEANUP STANDARDS.—The Site Manager shall

15 select remedial actions for a Defense Nuclear Facility in

16 accordance with the provisions of section 121(d) of the

17 Comprehensive Environmental Response, Compensation,

18 and Liability Act of 1980 (42 U.S.C. 9621(d)), except

19 that the remedial actions need not attain any relevant and

20 appropriate standard, requirement, criteria, or limitation.

21 (e) METRIC SYSTEM.—The Site Manager for any De22 fense Nuclear Facility subject to this Act may exempt the

23 facility from the requirements of the Metric System Con24 version Act of 1975 (15 U.S.C. 205a and following).
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1 SEC. 6. DEPARTMENT ORDERS.

2 (a) EXISTING ORDERS.—The internal orders of the

3 Department of Energy, whether or not they have been

4 adopted as regulations, shall not apply at a Defense Nu5 clear Facility subject to this Act 60 days after the con6 firmation of the Site Manager except for those orders that

7 the Site Manager deems essential for the protection of

8 human health or the environment, or to the conduct of

9 critical administrative functions.

10 (b) NEW ORDERS.—The Site Manager of a Defense

11 Nuclear Facility subject to this Act may adopt a new order

12 only after finding that the order is essential to the protec13 tion of human health or the environment, or to the con14 duct of critical administrative functions, and, to the extent

15 possible, will not unduly interfere with efforts to bring the

16 Defense Nuclear Facility into compliance with environ17 mental laws, including the terms of any environmental

18 agreement.

19 SEC. 7. STATE EXERCISE OF REGULATORY AUTHORITY.

20 (a) STATE EXERCISE OF AUTHORITIES UNDER

21 CERCLA.—(1) Notwithstanding any other provision of

22 law, a host State may exercise the authorities vested in

23 the Administrator of the Environmental Protection Agen24 cy under the Comprehensive Environmental Response,

25 Compensation, and Liability Act of 1980 (42 U.S.C. 9601

26 et seq.) at any Defense Nuclear Facility subject to this
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1 Act if the host State complies with the provisions of this

2 section.

3 (2) A host State that elects to exercise the authorities

4 vested in the Administrator of the Environmental Protec5 tion Agency under the Environmental Protection Agency

6 under the Comprehensive Environmental Response, Com7 pensation, and Liability Act of 1980 shall notify the Ad8 ministrator in writing. Within 60 days of the Administra9 tor’s receipt of the State’s notification, the Administrator

10 shall provide for the orderly transfer of her authorities at

11 the Defense Nuclear Facility to the host State. The host

12 State and the Department shall amend any existing inter13 agency agreement to reflect the transfer of authorities at

14 the Defense Nuclear Facility.

15 (3) A host State that elects to exercise the authorities

16 vested in the Administrator of the Environmental Protec17 tion Agency under the Comprehensive Environmental Re18 sponse, Compensation, and Liability Act of 1980 shall re19 tain its authority under section 310 of that Act (42 U.S.C.

20 9659) to enforce compliance with any requirement of an

21 interagency agreement with the Department, including the

22 authority to compel implementation of a remedy selected

23 by the State and shall have the authority granted under

24 section 109 of that Act (42 U.S.C. 9609(a)(1)).
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1 (4)(A) At a Defense Nuclear Facility where the Ad2 ministrator’s authorities under section 120(e)(4) of the

3 Comprehensive Environmental Response, Compensation,

4 and Liability Act of 1980 (42 U.S.C. 9620(e)(4)) have

5 been transferred to the host State pursuant to this section,

6 and the host State does not concur in a remedy proposed

7 by the Site Manager, the parties shall enter into dispute

8 resolution as provided in their interagency agreement.

9 (B) The final level of such disputes shall be to the

10 Site Manager and the Governor of the host State, and if

11 the Site Manager and the Governor do not reach agree12 ment, the host State shall select the final remedy: Pro13 vided, however, That before reaching the final level of dis14 pute, the remedy selection dispute shall be reviewed by a

15 mediator selected by the host State and the Site Manager.

16 The mediator shall be experienced in contaminated site re17 mediation, and radionuclide exposure issues. The mediator

18 may consult with representatives of the National Academy

19 of Sciences, and other qualified experts as the mediator

20 deems necessary. If the mediation does not result in the

21 parties reaching agreement, the mediator shall recommend

22 the remedy he deems appropriate. The mediation process

23 shall be completed as quickly as possible, and in no event

24 shall take more than 90 days to complete. If the Governor

25 disagrees with the mediator’s recommendation, the host
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1 State shall issue the final determination on the dispute,

2 with a written rationale for such determination.

3 (C) In selecting a remedy, the Site Manager, the me4 diator, and the host State shall consider the remedy selec5 tion criteria in section 121 of the Comprehensive Environ6 mental Response, Compensation, and Liability Act of

7 1980 (42 U.S.C. 9621), and in the National Contingency

8 Plan, the provisions of this Act, and the assessment and

9 the certification prepared by the Site Manager under sec10 tion 5(c) of this Act.

11 (5) Remedial actions selected for Defense Nuclear

12 Facilities or portions thereof shall be consistent with the

13 Future Land Use plan developed by the Land Use Coun14 cil. Remedial actions, including cleanup standards, shall

15 be selected using reasonable maximum exposure scenarios

16 that are consistent with the future land uses set forth in

17 the Future Land Use plan. Appropriate institutional con18 trols shall be implemented whenever the concentration of

19 hazardous substances remaining after completion of the

20 remedial action would pose a threat or potential threat to

21 human health under a residential use exposure scenario.

22 (b) REDUNDANCIES.—The host State shall integrate,

23 to the maximum extent possible, the requirements of ap24 plicable laws over which it has jurisdiction, to eliminate
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1 redundancies that do not contribute to the environmental

2 management program.

3 (c) ADJOINING STATES.—(1) The Site Manager shall

4 provide to any adjoining State those opportunities for re5 view and comment regarding any response action at a De6 fense Nuclear Facility that are provided pursuant to sec7 tion 121(f)(1) (D), (E), (G), and (H) by the Environ8 mental Protection Agency under the Comprehensive Envi9 ronmental Response, Compensation, and Liability Act of

10 1980 (42 U.S.C. 9621(f)(1) (D), (E), (G), and (H)).

11 (2) A host State shall enter into negotiations with,

12 and is authorized to enter into a Memorandum of Under13 standing with, an adjoining State addressing issues of mu14 tual concern regarding a Defense Nuclear Facility. Noth15 ing in this paragraph shall delay implementation of this

16 section.

17 (3) If a host State brings an action to compel imple18 mentation of a remedial action pursuant to this section,

19 an adjoining State may intervene as a matter of right in

20 such action.

21 (d) PENALTIES.—All funds collected by the host

22 State from the Federal Government as penalties or fines

23 imposed for the violation of any environmental law at a

24 Defense Nuclear Facility shall be used by the host State

25 only for projects to protect the environment at or near
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1 the facility from threats resulting from the facility or to

2 remedy contamination associated with the facility.

3 SEC. 8. COMPLIANCE WITH NATIONAL ENVIRONMENTAL

4 POLICY ACT.

5 The Site Manager shall integrate, to the maximum

6 extent possible, the requirements of the National Environ7 mental Policy Act (42 U.S.C. 4321) with other applicable

8 State and Federal regulatory requirements. Where an

9 analysis of environmental impacts and public comment

10 process has been completed under other applicable law, in11 cluding the Comprehensive Environmental Response,

12 Compensation, and Liability Act of 1980 (42 U.S.C. 9601

13 and following) or State environmental laws, for any deci14 sion, project, or action conducted at a Defense Nuclear

15 Facility, and the Site Manager determines that the analy16 sis and process are substantially equivalent to that re17 quired by the National Environmental Policy Act, the Site

18 Manager need not conduct another environmental analysis

19 or public comment process under the National Environ20 mental Policy Act.

21 SEC. 9. LAND USE COUNCIL.

22 (a) COUNCIL ESTABLISHED.—There is hereby estab23 lished a Land Use Council for each Defense Nuclear Facil24 ity for which a Site Manager has been appointed under

25 this Act. Each Land Use Council shall develop a future
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1 land use plan for all lands within the Defense Nuclear Fa2 cility boundaries that are managed under the Comprehen3 sive Environmental Response, Compensation, and Liabil4 ity Act of 1980 and are listed on the National Priorities

5 List. The Council shall not specify future land use for

6 lands outside National Priority List site boundaries. At

7 the Hanford Reservation, the Council shall not specify fu8 ture land use for the Fitzner-Eberhardt Arid Lands Ecol9 ogy Reserve or the Wahluke Slope. The plan shall be given

10 full consideration in developing and selecting remedial ac11 tions for the Defense Nuclear Facility.

12 (b) MEMBERSHIP.—Each Land Use Council shall

13 make decisions by majority vote. The members of the

14 Council for a Defense Nuclear Facility shall include the

15 Site Manager for the Defense Nuclear Facility who shall

16 be a voting member and the following additional members

17 appointed by such Site Manager:

18 (1) One voting member nominated by the Gov19 ernor of the host State.

20 (2) One voting member nominated by the elect21 ed officials of counties and cities contiguous to or

22 within 15 miles of a Defense Nuclear Facility.

23 (3) One nonvoting member consisting of the

24 chair of the site advisory board, established by the
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1 Department at the Defense Nuclear Facility or such

2 members designee.

3 (4) One nonvoting member appointed by the

4 national laboratory in closest proximity to the De5 fense Nuclear Facility.

6 (c) PLAN ADOPTION.—The Land Use Council shall

7 adopt, within 24 months after confirmation of the Site

8 Manager, a Future Land Use plan for the Defense Nu9 clear Facility. To support remedial action decisions, the

10 Council shall use a phased approach in developing a future

11 land use plan. Prior to completion of the full plan, but

12 no later than 9 months after the Site Manager’s confirma13 tion, the Council shall adopt land use plans for portions

14 of the Facility to support scheduled remedial action deci15 sions as requested by the Site Manager.

16 (d) CONTENT OF THE PLAN.—The Future Land Use

17 Plan for a Defense Nuclear Facility shall include—

18 (1) lands that should be retained by the De19 partment for its use or for the maintenance of insti20 tutional controls needed to protect the public or en21 vironment from hazardous substances or radioactive

22 materials;

23 (2) lands designated for industrial use;

24 (3) lands designated for commercial use;

25 (4) lands designated for residential use;
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1 (5) lands designated for agricultural use;

2 (6) lands designated for recreational use; and

3 (7) lands designated for open space.

4 (e) PLAN CRITERIA.—In developing the Future Land

5 Use Plan, the Land Use Council shall consider informa6 tion it deems appropriate, including—

7 (1) the degree to which lands within the De8 fense Nuclear Facility could be reasonably remedi9 ated given technological considerations;

10 (2) the cost of remediation;

11 (3) the risks to human health and the environ12 ment;

13 (4) the land use history of the facility and sur14 rounding lands, current land uses of the facility and

15 surrounding lands, recent development patterns in

16 the proximity of the facility, and population projec17 tion for the area;

18 (5) land use plans prepared for adjacent lands

19 and for the facility, including for the Hanford res20 ervation, the report of the Future Site Working

21 Group;

22 (6) Federal or State land use designations, in23 cluding Federal facilities and national parks, State

24 groundwater or surface water recharge areas, rec-
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1 reational areas, wildlife refuges, ecological areas, and

2 historic or cultural areas;

3 (7) the proximity of contamination to resi4 dences, sensitive populations or ecosystems, natural

5 resources, or areas of unique historic or cultural sig6 nificance;

7 (8) the potential for economic development; and

8 (9) recreation, open space, cultural, and other

9 noneconomic values.

10 (f) CONSULTATION.—In preparing the land use plan,

11 the Council shall consult with—

12 (1) adjoining States,

13 (2) affected Indian Tribes,

14 (3) affected local governments,

15 (4) appropriate State and Federal agencies, and

16 (5) the public.

17 All Council meetings shall be open to the public and shall

18 be scheduled and conducted to promote public participa19 tion. Adjoining States, affected Indian Tribes, affected

20 local governments, appropriate State and Federal agen21 cies, affected Indian Tribes, and the public shall be given

22 an opportunity to comment on the land use plans prior

23 to their adoption. The Council shall advise commentors of

24 the disposition of their comments.
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1 SEC. 10. TECHNOLOGY DEMONSTRATIONS.

2 (a) IN GENERAL.—The Site Manager shall promote

3 the demonstration, certification, verification, and imple4 mentation of new environmental technologies at Defense

5 Nuclear Facilities.

6 (b) CRITERIA.—The Site Manager shall establish a

7 program at the Defense Nuclear Facility for testing envi8 ronmental, waste characterization and remediation tech9 nology at the site. In establishing such a program, the Site

10 Manager is authorized to—

11 (1) establish a simplified, standardized and

12 timely process for the testing and verification of new

13 technologies;

14 (2) solicit and accept applications to test envi15 ronmental technology suitable for waste management

16 and environmental restoration activities at Defense

17 Nuclear Facilities, including prevention, control,

18 characterization, treatment, and remediation of con19 tamination; and

20 (3) enter into cooperative agreements with

21 other public and private entities to test environ22 mental technologies at the Defense Nuclear Facility.

23 (c) SAFE HARBORS.—At the request of the Site Man24 ager, the Secretary shall seek to provide regulatory or con25 tractual ‘‘safe harbors’’ to limit liability of companies
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1 using technology approved for use at a Defense Nuclear

2 Facility for use at other Department of Energy facilities.

3 (d) NUCLEAR MATERIAL.—When source, special nu4 clear, or by-product materials are involved, agreements

5 with private entities under section 9, subsection (b),

6 shall—

7 (1) provide indemnification pursuant to section

8 170d. of the Atomic Energy Act of 1954 (42 U.S.C.

9 2210(d));

10 (2) indemnify, protect, and hold harmless the

11 contractor from and against all liability, including li12 ability for legal costs, for any preexisting conditions

13 at any part of the Defense Nuclear Facility man14 aged under the agreement;

15 (3) indemnify, protect, and hold harmless the

16 contractor from and against all liability to third par17 ties (including liability for legal costs and for claims

18 for personal injury, illness, property damage, and

19 consequential damages) arising out of the contrac20 tor’s performance under the contract, unless such li21 ability was caused by conduct of the contractor

22 which was grossly negligent or which constituted in23 tentional misconduct; and

24 (4) provide for indemnification of subcontrac25 tors as described in subparagraphs (1), (2), and (3).
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1 SEC. 11. CONTRACT REFORM AND FEDERAL GOVERNMENT

2 OVERSIGHT.

3 (a) CONTRACTING STRATEGIES.—The Site Manager,

4 in entering into and managing all contracts at Defense

5 Nuclear Facilities (including contracts for design, con6 struction, operation and maintenance of treatment, stor7 age and disposal facilities), may ensure effective, efficient

8 and consistent implementation of the Federal Acquisition

9 Regulation (hereinafter in this section referred to as

10 ‘‘FAR’’) and the Federal Acquisition Streamlining Act

11 (hereinafter in this section referred to as ‘‘FASA’’) re12 quirements and shall—

13 (1) encourage market-based management and

14 practices;

15 (2) maximize competition in new procurements;

16 (3) maintain an effective capability to

17 recompete existing contracts;

18 (4) maximize efficient and effective use of

19 multiyear contracting practices that enhance com20 mercialization and privatization;

21 (5) maximize use of incentives and performance

22 guarantees;

23 (6) assure coordination and integration of all

24 contractor-developed designs, plans, and schedules;

25 (7) maximize application of best commercial

26 standards and specifications in all contracts; and
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1 (8) consult to maximum extent possible, the

2 host State regarding contracting strategies and over3 sight, including project plans, facility designs, and

4 schedules and cost estimates.

5 (b) MULTIYEAR CONTRACTING.—The Site Manager

6 is authorized to enter into and implement multiyear con7 tracts, in accordance with FAR and FASA requirements

8 and the provisions of this Act for the design, construction,

9 operation and maintenance of treatment, storage and dis10 posal facilities by private entities. The Site Manager shall

11 do so when the Site Manager determines that such a con12 tract will maximize public resources and result in efficient

13 and timely environmental improvements. In entering into

14 such a contract, the Site Manager shall not jeopardize the

15 funding of environmental agreement obligations. The Site

16 Manager may use Department of Defense FAR multiyear

17 funding and termination liability procedures in lieu of ci18 vilian agency FAR procedures if the Site Manager dem19 onstrates this to be beneficial to the United States.

20 (c) ASSISTANCE IN IMPROVING CONTRACTING

21 STRATEGIES AND GOVERNMENT OVERSIGHT.—The Site

22 Manager shall obtain the expertise necessary to implement

23 performance oriented incentive based contracting and pro24 curement practices. To accomplish this, the Site Manager
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1 may obtain the involvement of qualified representatives

2 from other Federal agencies in—

3 (1) developing improved contracting strategies,

4 and participating in selection of contract sources;

5 and

6 (2) the oversight and administration of con7 tracts.

8 The Secretaries of involved agencies shall ensure selection

9 of qualified and knowledgeable representatives to assist

10 and advise the Site Manager. The Site Manager may also,

11 to the extent allowed by the FAR separately consult with

12 the private sector.

13 SEC. 12. ENVIRONMENTAL AGREEMENTS NOT AFFECTED.

14 Nothing in this Act shall impair the force or effect

15 of any environmental agreement, except to authorize re16 negotiation to incorporate the changes required to comply

17 with provisions of this Act.

18 SEC. 13. REPORT TO CONGRESS.

19 Two years after the effective date of this Act, and

20 every two years thereafter, the Site Manager for each De21 fense Nuclear Facility subject to this Act shall submit to

22 Congress a report evaluating progress or cleanup made

23 under the provisions of this Act. The report shall identify

24 efficiencies achieved and moneys saved through implemen25 tation of this Act and shall identify additional measures
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1 that would increase the pace and lower the cost of environ2 mental management activities at the facility. The Site

3 Manager shall also report specific actions undertaken to

4 implement business and contracting strategies that maxi5 mize the use of fixed price and incentive based contracting

6 in lieu of cost reimbursement contract arrangements. The

7 Site Manager shall also specify in his report the utility

8 of commercial standards, specifications and practices, as

9 well as improvements in the effectiveness and efficiency

10 of Federal contract oversight and administration activities

11 within his purview.

12 SEC. 14. NATIONAL HISTORIC PRESERVATION ACT.

13 Federal structures at a Defense Nuclear Facility

14 smaller than 100,000 square feet shall be exempt from

15 the National Historic Preservation Act (16 U.S.C. 470

16 and following) unless the Site Manager deems these struc17 tures appropriate for National Historic Preservation Act

18 protection, and deems that such action will not delay

19 cleanup activities or increase cleanup costs at the facility.

20 National Historic Preservation Act review for structures

21 larger than 100,000 square feet shall be limited to no

22 more than 30 days.
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1 SEC. 15. ENVIRONMENTAL HEALTH AND SAFETY.

2 The Department of Energy Office of Environmental

3 Health and Safety shall enforce safety and health activi4 ties at Defense Nuclear Facilities.

5 SEC. 16. PRIVATIZATION OF WASTE CLEANUP AND MOD6 ERNIZATION ACTIVITIES OF DEFENSE NU7 CLEAR FACILITIES.

8 (a) CONTRACT AUTHORITY.—Notwithstanding any

9 other law, the Site Manager may enter into 1 or more

10 long-term contracts, with a private entity located within

11 75 miles of a Defense Nuclear Facility, for the procure12 ment of products or services that are determined by the

13 Site Manager to be necessary to support environmental

14 management activities at such facilities, including the de15 sign, construction, and operation of treatment, storage,

16 and disposal facilities.

17 (b) CONTRACT PROVISIONS.—A contract under sub18 section (a)—

19 (1) shall be for a term of not more than 30

20 years;

21 (2) may include options for 2 extensions of not

22 more than 5 years each;

23 (3) when source, special nuclear, by-product,

24 hazardous materials are involved, shall include an

25 agreement to—
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1 (A) provide indemnification pursuant to

2 section 170d. of the Atomic Energy Act of 1954

3 (42 U.S.C. 2210(d));

4 (B) indemnify, protect, and hold harmless

5 the contractor from and against all liability (in6 cluding liability to third parties for legal costs

7 and for claims for personal injury, illness, prop8 erty damage, and consequential damages) relat9 ing to pre-existing conditions at any part of the

10 Defense Nuclear Facility arising out of the con11 tractor’s performance under the contract unless

12 such liability was caused by conduct of the con13 tractor which was negligent or grossly negligent

14 or which constituted intentional misconduct;

15 and

16 (C) provide for indemnification of sub17 contractors as described in subparagraphs (A)

18 and (B);

19 (4) shall permit the contractor to obtain a pat20 ent for and use for commercial purposes a tech21 nology developed by the contractor in the perform22 ance of the contract;

23 (5) shall provide for fixed or performance based

24 compensation; and
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1 (6) shall include such other terms and condi2 tions as the Site Manager considers appropriate to

3 protect the interests of the United States.

4 (c) PREFERENCE FOR LOCAL RESIDENTS.—In enter5 ing into contracts under subsection (a), the Site Manager

6 shall give preference, consistent with Federal, State, and

7 local law, to entities that plan to hire, to the maximum

8 extent practicable, residents in the vicinity of the Defense

9 Nuclear Facility who are employed or who have previously

10 been employed by the Department of Energy or a private

11 contractor at the facility.

12 (d) PAYMENT OF BALANCE OF UNAMORTIZED

13 COSTS.—

14 (1) DEFINITION.—For purposes of this sub15 section, the term ‘‘special facility’’ means land, a de16 preciable building, structure, or utility, or depre17 ciable machinery, equipment, or material that is not

18 supplied to a contractor by the Department.

19 (2) CONTRACT TERM.—A contract under sub20 section (a) may provide that if the contract is termi21 nated for the convenience of the Government, the

22 Secretary shall pay the unamortized balance of the

23 cost of any special facility acquired or constructed

24 by the contractor for performance of the contract.
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1 (3) SOURCE OF FUNDS.—The Secretary may

2 make a payment under a contract term described in

3 paragraph (2) and pay any other costs assumed by

4 the Secretary as a result of the termination out of

5 any appropriations that are available to the Depart6 ment of Energy for operating expenses, not includ7 ing funds allocated to environmental management

8 activities at the site, for the fiscal year in which the

9 termination occurs or for any subsequent fiscal year.

10 (e) LIMITATION.—Funds appropriated pursuant to

11 this or any other Act enacted after the date of enactment

12 of this Act may be obligated for a contract under this sec13 tion only—

14 (1) to the extent or in such amounts as are pro15 vided in advance in an appropriation Act, and

16 (2) if such contract contains each of the follow17 ing provisions:

18 (A) A statement that the obligation of the

19 United States to make payments under the con20 tract in any fiscal year is subject to appropria21 tions being provided specifically for that con22 tract.

23 (B) A commitment to obligate the nec24 essary amount for each fiscal year covered by

25 the contract when and to the extent that funds
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1 are appropriated for such contract for such fis2 cal year.

3 (C) A statement that such a commitment

4 given under the authority of this section does

5 not constitute an obligation of the United

6 States.

7 (f) LEASE OF FEDERALLY OWNED LAND.—

8 (1) IN GENERAL.—Notwithstanding any other

9 provision of law, the Site Manager may lease feder10 ally owned land at a Defense Nuclear Facility to a

11 contractor in order to provide for or to facilitate the

12 construction of a facility in connection with a con13 tract under subsection (a).

14 (2) TERM.—The term of a lease under this

15 paragraph may be either the expected useful life of

16 the facility to be constructed, or the term of the con17 tract.

18 (3) TERMS AND CONDITIONS.—A lease under

19 paragraph (1) shall—

20 (A) require the contractor to pay rent in

21 amounts that the Site Manager considers to be

22 appropriate; and

23 (B) include such other terms and condi24 tions as the Site Manager considers to be ap25 propriate.
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1 (g) COMMERCIAL STANDARDS.—The Site Manager

2 shall, whenever practicable, apply commercial standards to

3 contractors used in the performance of a contract under

4 subsection (a).

5 SEC. 17. PREFERENCE AND ECONOMIC DIVERSIFICATION

6 FOR COMMUNITIES AND LOCAL RESIDENTS.

7 (a) PREFERENCE.—In entering into a contract or

8 subcontract with a private entity for products to be ac9 quired or services to be performed at a Defense Nuclear

10 Facility, the Site Manager and contractors under the Site

11 Manager’s supervision shall, to the maximum extent prac12 ticable, give preference to an entity that is otherwise quali13 fied and within the competitive range (as determined

14 under section 15.609 of title 48, Code of Federal Regula15 tions, or a successor regulation, as in effect on the date

16 of the determination) that plans will—

17 (1) provide products and services originating

18 from communities within 75 miles of the facility;

19 (2) avert, to the maximum extent practicable,

20 the dismissal of employees employed by the Depart21 ment or a private contractor at the facility, and pro22 tect, to the maximum extent possible, the continuity

23 of service and benefits of such employees;

24 (3) hire residents living in the vicinity of the fa25 cility, especially residents who have previously been
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1 employed by the Department or its contractors at

2 the facility, to perform the contract; and

3 (4) invest in value-added activities in the vicin4 ity of the facility to mitigate adverse economic devel5 opment impacts resulting from closure or restructur6 ing of the facility.

7 (b) APPLICABILITY.—Preference shall be given under

8 subsection (b) only with respect to a contract for an envi9 ronmental management activity that is entered into after

10 the date of enactment of this Act.

11 SEC. 18. JURISDICTION.

12 The United States District Court for the district in

13 which a Defense Nuclear Facility is located shall have ex14 clusive jurisdiction over any claims arising under this Act

15 with respect to such facility.

16 SEC. 19. STABLE FUNDING.

17 It is the sense of the Congress that stable levels of

18 funding are essential to carry out this Act. The Site Man19 ager and the President are encouraged to seek funding

20 levels not lower than that allocated during fiscal year

21 1996.

22 SEC. 20. EXPIRATION.

23 The provisions of this Act shall expire 10 years after

24 its enactment, but Congress may review and revoke any

25 provisions of this Act after 5 years if Congress determines
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1 that enactment of this Act has not accelerated cleanup or

2 reduced costs at the Defense Nuclear Facility.

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