The West Valley site, about 30 miles southeast of Buffalo, includes an approximately 200-acre area of nuclear operations within a 3,300-acre area owned by the state of New York. (See fig. 1.) The facility began construction in 1963 as the first—and ultimately the only—commercial spent fuel reprocessing plant to be operated in the United States. A firm called Nuclear Fuel Services operated the plant, which reprocessed spent fuel from 1966 to 1972. Regulated by the Atomic Energy Commission (predecessor to NRC), the plant reprocessed approximately 640 metric tons of spent nuclear fuel to recover usable uranium and plutonium. In 1972, the plant was shut down to meet regulatory changes, including more stringent seismic criteria and worker safety requirements. In 1976, facing rising estimates of the cost to modify the plant to meet the new safety requirements, the operator announced its withdrawal from the business. (A time line of historical and projected West Valley milestones is presented in app. II.) The commercial reprocessing era at West Valley left behind major environmental, safety, and health risks from multiple types of nuclear contamination at the site, including high-level wastes, radioactive buried wastes, and environmental contamination. Specific on-site radiation risks that were generated then and still exist include the following: The reprocessing building—significantly contaminated with strontium-90 and cesium-137 (both potentially carcinogenic radionuclides)—and four adjacent single-shell underground storage tanks encased in concrete vaults. These tanks originally contained about 600,000 gallons of liquid, high-level wastes generated during reprocessing. A 5-acre, NRC-licensed waste disposal area, used from 1966 to 1986. This area contains several types of buried wastes resulting from the reprocessing era, such as about a third of a cubic meter of spent fuel from Hanford’s N-Reactor; this spent fuel was buried instead of being reprocessed because the outer layer of a fuel assembly was ruptured. A storage pool originally containing several hundred spent nuclear fuel assemblies, and now containing 125 assemblies. Groundwater contamination under the reprocessing building, in the form of a plume of strontium-90 that first developed during 1968 to 1971 and was identified in 1994. Contamination in the form of cesium-137 in surface soils on- and off-site, resulting from airborne releases, identified as principally occurring in 1968. The releases were caused by ventilation failures in the plant’s main stack. The cesium contamination levels are only slightly distinguishable from background radiation levels. The contamination extends about 3.7 miles northwest from the plant stack into heavily wooded off-site areas. An inactive 15-acre, state-licensed and -managed commercial low-level radioactive waste disposal facility. This facility, which operated from 1963 to 1975, contains, among other wastes, highly radioactive wastes from naval and commercial reactors and nuclear fuel processing facilities that are buried in trenches, as shown in figure 2. The West Valley Demonstration Project Act, enacted to assist in the cleanup of the facility, was signed into law in October 1980. The act required DOE to, among other things, (1) solidify and develop suitable containers for the site’s high-level radioactive wastes; (2) transport the solidified waste to a permanent repository; and (3) dispose of the low-level and transuranic wastes created during the project. In cooperation with the state’s Energy Research and Development Authority, DOE took control of project operations in 1982. The West Valley Act and an implementing cooperative agreement divided projected operating costs between DOE (90 percent) and the state (10 percent). West Valley Nuclear Services, Inc. (now under Washington Group International, Inc.) was awarded the solidification project contract and remains the primary contractor. In carrying out its responsibilities under the act, DOE has constructed the solidification facility and conducted solidification operations—referred to as vitrification. These operations have involved (1) chemically treating the high-level wastes—a step called pretreatment—to separate out voluminous less-radioactive wastes (which are then stored as low-level wastes) and (2) mixing the remaining high-level wastes with a form of molten glass and pouring the mixture into cylindrical stainless steel storage canisters. (The canisters are shown in fig. 3.) As vitrification nears completion, DOE and the New York State energy authority are shifting their focus to the remaining cleanup tasks—decontaminating and decommissioning structures, remediating soil and groundwater, and removing nuclear wastes stored and buried on-site, among other activities. Various entities oversee West Valley under several statutes. The site was originally licensed to the operator and New York State by the Atomic Energy Commission and subsequently by NRC. For the duration of DOE’s presence, the NRC license to the state has been placed in abeyance, leaving DOE, as authorized by the Atomic Energy Act, to regulate radioactive materials at West Valley, as it does at other departmental facilities. After DOE concludes its on-site tasks, the site is to be turned back over to the state and the NRC license is to be reinstated and/or terminated following decommissioning. Until then, under the terms of the West Valley Act and a 1981 memorandum of understanding with DOE, NRC is to provide informal review and consultation and is authorized to prescribe decontamination and decommissioning criteria for the site. West Valley must also comply with the National Environmental Policy Act of 1969 (NEPA), which requires integrated environmental planning leading to the choice of a preferable cleanup alternative, and a 1987 Stipulation of Compromise Settlement with the Coalition on West Valley Nuclear Wastes and the Radioactive Waste Campaign, which resulted from litigation concerning DOE’s on-site disposal of wastes generated by the project. The stipulation required DOE to conduct a full environmental impact study under NEPA, instead of the less detailed environmental assessment the Department had considered sufficient. Additionally, EPA and the state’s Department of Environmental Conservation have oversight responsibilities at the site. For example, under authorization from EPA, the state regulates radioactive air emissions under the Clean Air Act and the hazardous components of radioactive mixed wastes under the Resource Conservation and Recovery Act of 1976 (RCRA). DOE has almost completed vitrifying the high-level wastes at West Valley, overcoming numerous technological challenges along the way. Vitrification has enhanced the site’s environmental, safety, and health status, and on the basis of our examination of DOE data and reports, as well as interviews with interested parties, the Department has generally operated the facility safely. However, the cleanup could take four more decades, including more than two decades of major additional cleanup work that still needs to be performed, and additional time for interim on- site storage of vitrified high-level wastes. In the near term, various wastes need to be managed and structures need to be decontaminated. In the longer term, depending on the cleanup level chosen for the site, these structures need to be torn down and either removed off-site or left in place and capped, and the site needs to be decommissioned. DOE’s operations at West Valley began in 1982 and included the construction of a vitrification facility from 1985 to 1995. From the late 1980s into the mid-1990s, waste pretreatment, sludge washing operations, and vitrification testing took place. As we reported in 1989 and 1996, construction was subject to delays and cost overruns early on. During pretreatment (1988-95), about 1.7 million gallons of low-level waste were generated and placed into almost 20,000 drums in an on-site storage area. (See fig. 3.) Pretreatment reduced the waste volume to be vitrified by over 80 percent. Vitrification operations began in 1996. They are now nearing completion, which is scheduled for September 2002. To date, the four on- site underground high-level waste tanks have been emptied of over 99 percent of their long-lived radioactivity in tank sludge, as well as 95 percent of their cesium-137 activity. To date, 255 stainless steel, cylindrical waste canisters have been filled with vitrified high-level waste. Vitrification of the remaining traces of wastes is continuing. Tank sludge, known as “tank heel,” is being removed from the tank bottoms (which have an intricate, grid-like internal support structure). In removing the liquid, high-level wastes from the underground tanks and vitrifying them, DOE has overcome numerous technological challenges. Technological successes related to West Valley vitrification have included (1) developing a separation process for pretreating the wastes (an ion exchange method, using titanium-treated zeolite for separation, which was developed at the Pacific Northwest National Laboratory); (2) developing tank liquid mobilization pumps that would work in a highly radioactive environment (adapted from a Savannah River Site design); (3) implementing a glass melter technology developed by the Pacific Northwest National Laboratory for use at West Valley; and (4) developing a canister waste-level monitoring system using infrared detection—a system adopted at Savannah River. The West Valley and Savannah River melter technologies have subsequently been considered for low-level waste vitrification efforts being planned at Fernald, Ohio; Savannah River; Hanford; and Oak Ridge, Tennessee. West Valley’s vitrification operations are part of a multibillion-dollar DOE effort to immobilize its liquid, high-level wastes at other, larger sites— including Savannah River, Hanford, and the Idaho National Environmental and Engineering Laboratory. West Valley and Savannah River are currently vitrifying their wastes, while the efforts at Hanford and the Idaho Laboratory—whose solid-form wastes, stored in bins, will be processed differently—are not as far along. The West Valley, Savannah River, and Hanford vitrification efforts differ in technical details, including methods of pretreatment. Vitrification at Savannah River could continue until the mid-2020s, according to DOE. We reported in 1999, however, that Savannah River was having difficulties with its chosen pretreatment technology. Pending resolution of this matter, the site has been restricting its vitrification efforts to the sludge in its tanks. At Hanford, DOE’s plans call for vitrification operations to begin in the late 2000s and continue until the mid to late 2010s for 10 percent or more of the high-level wastes, and an undetermined longer period for the rest. According to the federal and state oversight officials and local officials we contacted, DOE has generally operated the site safely. In addition, available DOE environmental and safety monitoring data and oversight reviews for West Valley (from 1990 to 2000) do not indicate a pattern of environmental, safety, or health issues. During pretreatment and vitrification operations, DOE has not reported serious exposures to radioactivity of on-site workers, although a few incidents DOE judged to be noncritical have put workers at risk of such exposure, according to DOE and NRC records. For example, in November 1996, radioactive waste migrated into a pipe intended for demineralized water at the vitrification facility; in December 1997, two workers came into contact with radioactive waste that went onto the ground in the area of the waste tanks; and in August 1999, radioactive liquids entered pipes intended to indicate fluid levels. As reported, and according to DOE officials, none of these incidents caused a significant loss in work time, and all were aggressively investigated. The site was given a departmental award in February 2000 for excellence in occupational safety and health protection. Off-site contamination at West Valley was generally within regulatory limits in the 1980s and 1990s, according to DOE. Surface water and sediment downstream from the site in Buttermilk and Cattaraugus Creeks have not shown elevated contamination from DOE activities, according to the Department. These creeks carry groundwater and surface water from the site, through nearby Seneca Nation of Indians lands to Lake Erie (about 35 miles distant), and eventually over Niagara Falls. Despite the progress made, decades of major cleanup work remain at West Valley, including waste management, decontamination, and decommissioning. In the near term, structures previously used for reprocessing operations and currently used for vitrification operations need to be decontaminated. In the longer term, into the mid-2020s, depending on the agreed-upon cleanup level for the site, these structures need to be torn down and either removed off-site or left in place as radioactive rubble—prospectively encased in a long-lasting protective cap. As currently projected by DOE, on-site storage of vitrified high-level wastes is to continue for another decade beyond the mid-2020s, after which the site is to be decommissioned according to NRC criteria and closed. Under current DOE plans, specific actions include the following: Shutting down the vitrification facility. This process includes melter deactivation, equipment and piping removal, and decontamination, and may extend to about 2017. Placing into on-site storage and maintaining the high-level waste canisters pending permanent disposal. On-site canister storage could extend to 2036 through 2040 (followed by site closure in 2041). Decontamination and decommissioning, shipping waste, and completing various on-site tasks required by the West Valley Act. For example, low-level wastes are being shipped off-site, possibly until 2022, and on-site transuranic wastes are to be addressed (including potentially shipping the wastes to a receiver site) from 2003 to 2021. Removal of spent fuel elements stored on-site. The fuel, in the form of 125 assemblies, is to be shipped to the Idaho Laboratory in 2001 so that deactivating the storage facility at West Valley can occur during 2001 to 2005. Some of these cleanup actions cannot be implemented without further technological advances. According to DOE, at least 50 innovative technologies are being pursued in connection with the West Valley cleanup in the following five areas: cleaning up vitrification equipment, including the melter; detecting and characterizing radioactive constituents—for example, in waste containers and wastewater discharge; treating and disposing of waste, including, for example, developing alternate transportation systems for transuranic wastes; remediating subsurface contamination, including, for example, developing a permeable barrier and construction techniques to address the on-site groundwater plume; and decontaminating and decommissioning facilities, including, for example, reducing massive metal structures to a smaller size. Specific needs related to cleaning up the vitrification facility have included a remote-handled tooling system to segregate, reduce in size, characterize, and package radioactively contaminated metal materials that have been removed from the facility. A system to perform this task has been in operation since July 1999 and is a first step toward a larger, remote- handled waste facility for the site. This larger facility will be needed to conduct comparable tasks for larger equipment and materials in the vitrification facility and in the tank area. A West Valley official said that additional technologies would need to be developed if the agreed-upon cleanup level and end state for West Valley were to require that the underground tanks, buried highly radioactive wastes, and spent fuel on- site are to be dug up and removed from the site. Attempts to clean up West Valley are being hindered by several factors. First, and most importantly, DOE and New York State continue to disagree on which entity is principally responsible for exercising long-term operational stewardship of the site under the West Valley Act, which entity should pay the site’s prospective high-level waste disposal fees, and what the site should look like in the future. Their differences are key to facilitating long-term progress and are contributing to delays in environmental planning milestones for the site. Specifically, because the parties to the cleanup have not yet agreed on strategic issues affecting the site’s cleanup—that is, what the site is to look like after the cleanup is completed, how the land is to be used, and what regulatory cleanup standards are to be used—a final environmental impact statement (EIS) for decommissioning and closing the site has not yet been issued and the scheduled date for a record of decision on a cleanup level has been extended. An early scheduled date was 1997 but is now 2005 and could be extended further. Until recently, DOE and the state had been formally negotiating in an attempt to resolve their differences. As an incentive for agreement, DOE had included a proposal addressing the issue of the payment of prospective multimillion-dollar fees for disposal of West Valley’s high-level wastes at a permanent repository. However, these confidential negotiations broke down in January 2001 without an agreement. Second, prospective NRC cleanup standards—referred to as decontamination and decommissioning criteria—for the cleanup effort are to be issued in 2001, perhaps in the spring. However, these standards as drafted differ from the EPA environmental guidance and standards under CERCLA and the Safe Drinking Water Act (as well as New York State radiation protection guidance) that could be applied on-site. Third, it is uncertain where West Valley’s nuclear wastes are to go, including both high-level and transuranic wastes. Hundreds of millions of dollars in future costs could be at stake in addressing these disposal questions. The principal parties to the West Valley cleanup—DOE as site operator and New York State as site owner—have been attempting to reach an agreement on strategic issues affecting the site’s future in order to facilitate cleanup planning and the timely and cost-effective cleanup and closure of the site. However, to date, they have not reached such an agreement. Their current relationship reflects the fact that, historically, the federal government and the state have continuously differed on who should assume responsibility for the wastes generated by commercial reprocessing at West Valley. For example, in 1980, we reported that interested parties at West Valley were influenced more by their desire to minimize their own responsibilities than by attempting to arrive at the most practical solution. The issue of who will take on-site responsibility is likely to continue for the foreseeable future. Although the West Valley Act does not require that DOE and New York State reach agreement on the site’s future or how DOE will complete the cleanup effort, NEPA encourages interested parties to cooperate in environmental decisionmaking regarding sites such as West Valley. Consequently, it has been DOE’s stated policy to work closely with the state on the West Valley cleanup. Since mid-1999, the two entities have been conducting confidential negotiations on their future roles and responsibilities, particularly in the areas of (1) on-site operational stewardship, (2) future cost-sharing, and (3) an appropriate cleanup level and eventual use for the site. However, in mid-January 2001, these negotiations broke down without an agreement. Afterward, representatives of the two sides agreed that prospective long-term operational stewardship of West Valley’s wastes was a major unresolved issue. In this regard, DOE, as the site operator, prefers a cleanup level that would involve significant remedial efforts but not require removal of all the nuclear wastes off-site in order to achieve unrestricted site use. DOE also foresees a limited operational presence on-site, although one which could still last for decades. Conversely, New York State, as the site owner, appears to prefer that DOE stay on-site operationally as long as nuclear wastes are there (possibly for many more decades). To date, the state has not put forward a preferred cleanup alternative for the site. It has not ruled out the idea of leaving some nuclear wastes on-site, as DOE favors, but has not yet agreed to DOE’s preferred approach. New York State believes (1) the Department needs to do further analysis to demonstrate the adequacy of its favored approach and (2) reaching an agreement is contingent on DOE and the state agreeing on long-term on-site stewardship. The two parties disagree in large part because they interpret the West Valley Act differently and because they have clearly different interests to protect. Specifically at issue is the extent of cleanup activities DOE is required to conduct under the act, as well as the duration of DOE’s obligation to conduct operations on-site to deal with the radioactive contamination in buildings and burial areas resulting from commercial reprocessing operations that preceded the Department’s presence. According to DOE, under the act, New York State, as the site owner, is responsible for the preexisting contamination, and ultimately responsible for addressing land use issues there. DOE plans to limit its on-site decontamination and decommissioning efforts to areas, facilities, and materials used in conducting the waste vitrification project. The Department states that after cleaning up West Valley, it does not become owner of the site. In this regard, DOE foresees a long-term, but ultimately limited, departmental operating role at West Valley, after which it expects to leave the site. In recent years, DOE’s estimates for completing its on- site role have ranged from 2005 to 2041, depending on programmatic and waste disposal assumptions. On the other hand, New York State interprets the West Valley Act to require a more extensive cleanup role for DOE and a longer-term departmental operating presence—that is, as long as any nuclear waste remains on-site. According to the state, DOE is responsible for decontaminating and decommissioning all facilities and wastes in the 200- acre operations area, except for the state disposal area and the materials buried in the NRC-licensed disposal area prior to DOE’s presence. The state asserts that if DOE’s cleanup efforts result in the need for long-term institutional controls on-site, the Department should provide such controls. New York State estimates the federal government is responsible for about 75 percent of the spent fuel reprocessed at West Valley and therefore should rightly stay on-site as a long-term caretaker—if one is needed—for any remaining wastes generated from reprocessing. New York State officials have also said the state does not want responsibility for ensuring the long-term performance of the high-level waste tanks or other DOE-engineered barriers. As in the past, New York State believes that the federal government, in addition to its legal responsibilities, has the necessary technical and financial resources to fully clean up West Valley. DOE and New York State also have historically disagreed on who is responsible for paying the fees that are due if West Valley’s high-level wastes are to be disposed of in a permanent repository. The disagreement is not about who owns the wastes—the two sides agree that they are state owned. At issue is who should pay for disposal and under which laws. Under the Nuclear Waste Policy Act of 1982, nuclear facilities seeking access to a prospective permanent repository must sign a contract for disposal and pay a fee into the nuclear waste fund that was set up to cover the disposal costs. Notwithstanding the provisions of the West Valley Act and its implementing cooperative agreement between the Department and New York State, DOE officials said that, under the Nuclear Waste Policy Act, West Valley’s owner, like the owners of other nuclear facilities, must pay this fee, which covers full disposal costs, prior to having the site’s wastes disposed of in the repository. On the other hand, the state argues that the provisions of the West Valley Act and its implementing cooperative agreement make the signing of a disposal contract under the Nuclear Waste Policy Act of 1982 both inappropriate and redundant. In the state’s view, the Nuclear Waste Policy Act requires payment from a nonfederal party only for the disposal of spent fuel or high-level waste from a civilian nuclear power reactor. According to the state, the West Valley high-level wastes are a unique federal-civilian mixture not covered under the Nuclear Waste Policy Act (or, if covered, are “wastes from atomic energy defense activities” for which DOE is liable). DOE has unsuccessfully pursued the resolution of this matter for many years. In the recent confidential negotiations, the Department offered a proposal concerning the degree to which DOE and New York State would be responsible for paying the fee, in order to give the state an incentive to reach a timely agreement on a proposed cleanup level for the site and to resolve other important issues at the site. According to DOE, under its proposal, (1) to settle all outstanding issues between the Department and the state, the Department would agree to assume a portion of New York State’s responsibility to pay for the disposal of the high-level waste in return for monetary and other valuable considerations from the state and (2) DOE would still have no obligation to take title to and dispose of West Valley’s high-level waste unless New York State enters into a disposal contract under the Nuclear Waste Policy Act and pays the disposal fee. According to DOE officials, the proposal would achieve long-term, multimillion-dollar overall cleanup cost savings for both DOE and the state. Following the recent breakdown of the DOE-New York State negotiations, DOE withdrew the proposal, and it is unclear whether it could be revived. According to DOE, the Department and New York State are exchanging information to help determine when negotiations should appropriately be resumed. The DOE-New York State relationship is key to facilitating the cleanup of West Valley and has been a factor in delaying environmental planning milestones for the site. The differences between the two parties were less important in the past, when on-site cleanup efforts were focused almost entirely on vitrification—a cleanup step favored by all interested parties. However, the parties’ differences have become more prominent in recent years as cleanup planning has turned increasingly toward long-term decommissioning and closure of the facility. Facility decommissioning will require decisionmaking on controversial, unresolved issues, such as prospective off-site high-level waste tank removal versus entombment on- site. The differences between DOE and the state, including their lack of agreement on the site’s future, are affecting the pace of the West Valley environmental planning process under NEPA. Under NEPA, the Department is required to integrate environmental considerations into its planning, and the Department has historically included the state as a joint participant in the environmental analysis for the site. DOE has conducted NEPA compliance efforts for West Valley since the 1980s, but this process still has not resulted in a final EIS for the site or a record of decision on a cleanup level. Specifically, because of a lack of agreement among the parties, including DOE and the state, the draft EIS for cleaning up the site was issued in 1996 without including a preferred cleanup alternative. Instead, it laid out five cleanup alternatives that ranged widely, from limited remedial actions, referred to as “in place stabilization” of the contamination (at costs ranging from about $400 million to about $1.1 billion, depending on the specific option chosen), to more extensive actions, ranging from “on premises storage” of the contamination in new facilities (at a cost of about $3.7 billion) to full cleanup of the site to an unrestricted end state—referred to as the “removal” option (at a cost of about $8.3 billion). To date, none of these alternatives has been selected as preferred, and no final EIS has been issued. The continuing inability of the parties, especially DOE and New York State, to choose among cleanup alternatives for West Valley limits progress with NEPA compliance, as well as overall cleanup planning, and has resulted in changing DOE estimates of when—following issuance of a final EIS—a record of decision for the site could be issued. The estimated date for a record of decision has been extended several times, from October 1997, to May 2000, to the latest estimate of 2005. In retrospect, according to DOE officials at West Valley, the changing estimates indicate overly optimistic past assessments of how difficult it might be for interested parties to decide on a preferred cleanup alternative for the site. They said the 2005 date is a reasonable current estimate, and while it could be marginally accelerated, if at all, it could also be extended if there is no agreement soon on the site’s future. Concerned about potential cleanup delays, DOE has recently chosen to split the EIS development process into two phases, so that near-term post-vitrification cleanup work will not be delayed by NEPA compliance considerations. DOE and New York State officials maintain that their negotiating differences have not yet seriously affected the pace of environmental planning for West Valley or the overall progress of the cleanup. According to DOE headquarters and field officials, this is because, until recently, the Department has been more focused on vitrification than on later phases of the cleanup and is only now turning more attention to decontamination and subsequent decommissioning. Also, according to the Department, its environmental planning for West Valley does not depend on its negotiating efforts with the state, and therefore if no agreement is reached with the state, the Department can proceed with its NEPA compliance efforts without the state’s participation. A DOE official said that difficulties in developing a preferred alternative and the desire to give the public an ample opportunity to comment have been reasons for not including a preferred alternative in the 1996 draft EIS and for not having made it final since then. Departmental officials said that despite the lack of a preferred alternative for West Valley, day-to-day cleanup work is continuing, focusing on nearer-term work steps (such as decontamination of structures) that will be necessary regardless of which alternative is eventually chosen. According to DOE, the Department can complete all of its responsibilities under the West Valley Act even if negotiations with New York State never resume, but a DOE official said that if differences with the state continue in coming years, there could be more serious effects on the overall costs and schedule of the cleanup. In our view, the Department underestimates the degree to which the continuing lack of agreement among the parties— especially DOE and New York State—concerning the site’s long-term future is already limiting the precision and pace of DOE’s cleanup planning for West Valley, as evidenced in lengthy NEPA compliance efforts, frequently changing planning milestones, and uncertain, varying cleanup cost and schedule estimates. Under the West Valley Act, DOE’s cleanup of the facility is to occur in accordance with cleanup standards to be issued by NRC. However, these standards, which are important regulatory criteria for decontaminating and decommissioning the site, have been lacking since the act was passed in 1980. NRC first developed cleanup standards for its licensees, such as commercial nuclear power plants, in 1997. However, these standards (referred to as NRC’s license termination rule) were not designed specifically for West Valley. Prospective standards for West Valley were issued in draft form in December 1999 and are based substantially on the 1997 standards. Following a period of public comment, NRC is now reviewing the draft standards, and NRC officials expect them to be issued in 2001, perhaps in the spring. Such standards—principally including numerical limits on public exposure to any remaining on-site nuclear radiation after the site is cleaned up—are a necessary component of any nuclear cleanup effort. Commonly expressed as millirem of exposure to an individual annually, these limits help to quantify “how clean is clean” at a cleanup site. Like NRC’s 1997 standards, the prospective West Valley standards are to include an exposure limit of 25 millirem a year to an individual from all means of exposure (or “pathways”)—through air, water, and soil on-site at West Valley. Also, according to NRC officials, the standards will likely include higher limits for on-site locations where the level of 25 millirem a year for unrestricted access is not attainable. In such locations, such as burial areas for high-activity wastes, higher limits (100 or 500 millirem a year, depending on the situation) would be applicable, combined with restrictions on public access to these areas. Such a regulatory approach would recognize the need for long-term institutional controls at some locations at West Valley. The timing of the issuance for, and the prospective content of, the West Valley standards have been of concern to interested parties. Such standards were arguably less needed in the 1980s, when the first phase of the cleanup—the high-level waste vitrification project at West Valley—was gearing up. According to the 1981 DOE-NRC memorandum of understanding accompanying the West Valley Act, NRC was to issue the standards after DOE analyzed environmental options for the site. In this regard, DOE’s analyses have been ongoing for at least a decade (including the development of the 1996 draft EIS), and are still under way. The Department has been concerned that NRC may issue final cleanup standards prematurely, before West Valley’s environmental analyses are completed. Specifically, DOE has said that the issued standards could contain restrictions developed on the basis of incomplete environmental analysis that could prevent consideration of potentially cost-effective cleanup alternatives. On the other hand, some observers, such as the Natural Resources Defense Council, have argued that issuance of the NRC standards is long overdue and should not be further delayed because they are needed to help guide cleanup planning and analysis. Some have said the standards should adhere closely to the 1997 decommissioning standards and not include provisions, or “exceptions,” that could circumvent the standards’ protective intent. According to NRC officials, a few years after the final standards for West Valley are issued, prior to a prospective record of decision for the site, the agency plans to (1) review whether DOE applied the standards in developing a decommissioning EIS for the facility and (2) decide whether DOE’s preferred cleanup approach in the EIS meets NRC’s standards. The officials said the evaluation would take into account lessons learned from any further environmental analysis that DOE may conduct in the meantime. Although NRC has standard-setting authority under the West Valley Act, EPA’s environmental guidance and standards—which apply to both chemicals and radionuclides, versus NRC’s radiation-specific standards— could also apply on-site. In this regard, implementation of the West Valley Act does not preclude EPA from exercising its own, potentially more restrictive cleanup authority at West Valley under CERCLA and the Safe Drinking Water Act. While NRC’s standards could be applied on-site during decommissioning, CERCLA could be separately enforced—for example, in response to a citizen’s petition, according to EPA and NRC officials. In regard to groundwater protection, an area of special EPA protective concern, EPA’s approach may be more restrictive than NRC’s and therefore potentially significantly more costly to comply with. In addition, New York State’s Department of Environmental Conservation has issued cleanup guidance that could apply to West Valley. On the basis of its 1987 and 1995 assessments, EPA does not plan to take future remedial actions at West Valley under CERCLA. However, in a May 1999 letter to DOE’s West Valley office, EPA cautioned that cleaning up the site to prospective NRC standards of 25 millirem a year might not adequately protect human health or the environment. In addition, in commenting in January 2000 on NRC’s developing standards for West Valley, EPA called for West Valley’s groundwater to be protected to drinking water standards and for additional site-specific analysis to ensure such protection in the long term. NRC, EPA, and New York State officials have had discussions during 2000 on their different standards and guidance. They have agreed that they need to further explain to DOE how their various criteria and guidance may apply to different locations and activities at West Valley. However, to date, they have not said how their different standards and guidance are to be implemented on-site so as to avoid potential dual regulation. As we reported in 1994 and in June 2000, NRC and EPA have had ongoing differences on cleanup standards. They have recently attempted to resolve the differences through a memorandum of understanding. Their history of disagreement at other NRC-licensed sites indicates that cleanup standards for West Valley could also be disputed, especially with respect to groundwater protection. According to EPA, the two agencies have generally coordinated their regulatory activities effectively at NRC- licensed sites where their standards both apply. However, NRC and EPA have disagreed for many years on this matter and have been attempting for over a year to issue a final memorandum of understanding clarifying their regulatory roles. Such a memorandum could likewise apply to West Valley (an NRC-licensed site whose license is currently in abeyance). As of March 2001, the two agencies were keeping the Congress informed of their efforts but had not completed a final memorandum. Unresolved issues concerning the disposal of West Valley’s high-level and transuranic nuclear wastes may also hinder cleaning up the site in a more timely manner. The vitrified high-level wastes are being temporarily stored in a work room or “cell” in the current vitrification facility (which is part of the former spent fuel reprocessing facility), awaiting further disposition. (See fig. 3.) The transuranic wastes are currently stored at two locations— a building for so-called “lag” storage and the chemical process cell waste storage area (and some were buried in the NRC-licensed disposal area during commercial reprocessing operations). Questions of where these wastes will eventually go, when, and at what cost are still to be addressed. Under the West Valley Act, both types of waste are to be disposed of before the cleanup is completed. If disposal does not happen in a timely manner, their care and maintenance could add substantially to the overall costs and schedule for the West Valley cleanup—potentially hundreds of millions of dollars, with schedule extensions of up to two decades. In 1997, DOE issued a policy—in the form of a programmatic EIS and two records of decision—stating that high-level and transuranic wastes are to remain stored at sites where they have been generated for the foreseeable future, pending a decision on final disposition. Thus, any options for interim off- site storage of West Valley’s high-level and transuranic wastes would require the Department to make an exception to this policy. Off-site removal of West Valley’s high-level wastes could result in hundreds of millions of dollars in potential savings, in part through not having to construct an interim storage facility for the canisters at West Valley. This could be accomplished by removing the wastes to another DOE site for interim storage, followed by later disposal in a permanent repository. Other DOE sites, such as Savannah River, the Idaho Laboratory, Hanford, and the Nevada Test Site, could feasibly accept the West Valley wastes for interim storage, according to DOE officials. They said such a step could result in net cost savings from the elimination of years of storage and maintenance costs at West Valley. Sites such as Savannah River are expected to spend substantial amounts for storage of their own vitrified high-level wastes, beyond which the added costs of storing a relatively few canisters from West Valley are likely to be marginal. Furthermore, a 1997 DOE headquarters analysis estimated cost avoidance of about $770 million over the next 10 years through interim off- site storage of West Valley’s high-level wastes. The analysis assumed that early deployment of a high-level waste shipping system and off-site interim storage of the West Valley wastes would occur as part of an integrated, DOE-wide nuclear waste management effort. However, DOE officials recognized that state compliance agreements, other legal constraints, and political equity considerations among states could preclude taking such an action. DOE’s plans in the 1990s to ship the West Valley canisters to the Savannah River Site at the beginning of the 2000s are a case in point. The canisters could have been added to the larger inventory there on an interim basis, pending removal to a permanent repository. According to various DOE West Valley analyses, shipment would have begun anywhere from 2001 to 2007. The Department presented the option to the Savannah River citizens’ advisory board, which recommended the option be implemented (with some dissenters on equity grounds). In 1999, however, the state of South Carolina halted the plan. According to DOE officials, state officials said DOE had not properly informed them of the plan and the governor opposed it. DOE officials said that on the basis of the recent experience with the state of South Carolina, they have no current plans for interim off- site storage of West Valley’s high-level wastes. With regard to permanent disposal, DOE currently plans to remove the West Valley canisters to a permanent repository. Yucca Mountain, Nevada, is the prospective repository and, if approved, is projected to open in 2010. However, meeting this target date will depend on many technological and political factors. As discussed earlier, not the least of these factors is a timely decision on who—New York State or DOE—should pay the fee for disposal of West Valley’s wastes. Because DOE assumes a pessimistic scenario for prospective disposal of West Valley’s wastes at Yucca Mountain, the Department currently projects that the high-level waste canisters would not be shipped to the prospective Nevada repository until 2036 to 2040, at the end of the time frame projected for disposal there. Current DOE estimates indicate that if the wastes could instead be shipped to permanent off-site disposal in the mid 2020s, up to $100 million in West Valley cleanup costs could be saved. With respect to West Valley’s transuranic wastes. millions of dollars could be saved in disposal costs, depending on which disposal option is chosen.Under the West Valley Act, the transuranic wastes generated as part of project activities are to be disposed of prior to site closure. DOE’s recent plans do not specify a destination, but the latest plans have projected off- site removal of these wastes between 2007 and 2021. Both interim off-site storage and direct shipment to permanent disposal may be options, depending on technological, legal, and political factors, and any of several larger DOE sites could be candidates for interim storage. An existing transuranic waste disposal facility—the Waste Isolation Pilot Project (WIPP) in New Mexico, which has been in operation since 1999— appears to be a feasible permanent destination for West Valley’s transuranic wastes. However, under the authorizing legislation for WIPP, the facility is to receive only transuranic wastes generated in connection with defense-related activities. According to DOE officials, West Valley’s transuranic wastes do not meet this criterion and are considered commercial wastes. Departmental officials said options for gaining access for these wastes to WIPP include seeking an amendment to the WIPP Land Withdrawal Act or an administrative change to recategorize West Valley’s transuranic wastes as defense-related. The basis for such an administrative change would be the fact that the site’s transuranic wastes consist of commingled wastes resulting from spent fuel generated in both commercial and defense nuclear reactors. According to a DOE official, the Department currently favors obtaining a legislative change to gain access to WIPP for West Valley’s wastes, but officials said that seeking an immediate amendment to the WIPP Land Withdrawal Act may be inopportune since implementation of disposal operations at WIPP has only recently begun. The 1997 DOE study on integration opportunities estimated that $13 million in cost avoidance could be achieved over 10 years at West Valley if a significant portion of the site’s remote-handled transuranic wastes could be shipped to off-site locations for interim storage, pending potential WIPP access. This estimate assumed appropriate packaging in large containers for shipment to alternate sites and the implementation of a new transportation package to handle the containers. The same analysis estimated that disposing of all of West Valley’s transuranic wastes at WIPP (assuming access was obtained) could avoid about $4 million in storage and maintenance costs at West Valley. As with high-level waste disposal, state compliance agreements, other legal constraints, and equity issues among states could be factors in any effort to implement an interim storage approach for West Valley’s transuranic wastes. States with facilities that could readily accept such wastes—such as South Carolina and Washington State, for example—do not wish to be perceived as continually receiving transuranic and other nuclear wastes from other states, particularly from states that may have historically carried an arguably lesser share of the overall national burden for disposing of nuclear waste. In states that host DOE’s nuclear facilities, the Department has already invested substantial time and resources in negotiating acceptable arrangements for nuclear waste management, in response to the requirements of the Federal Facility Compliance Act and commitments made to governors. DOE’s estimates of West Valley’s total cleanup costs and a date for completing the cleanup have been uncertain and will remain so until strategic issues are agreed upon, including the extent to which the site is to be cleaned up and what it will then look like, how the land is to be used, what regulatory cleanup standards are to be used, and where the site’s nuclear wastes are to go. DOE’s estimates have shown large cost increases and schedule extensions—as well as variations—since DOE first reported them to the Congress in 1978, as part of congressional deliberations leading to enactment of the 1980 West Valley Act. In 1978, the estimated cleanup cost was $180 million, or about $1.1 billion in year-2000 dollars, with cleanup completion in 1990. These were preliminary estimates, made before the cleanup challenge at the site was fully understood. Estimates in the 1990s have shown considerably greater costs. These cost estimates also have varied by billions of dollars, and the completion schedule by decades, depending on the programmatic assumptions made. DOE’s current estimate of total cleanup costs is about $4.5 billion, with site closure by 2041. The various estimates are listed in table 1. As shown in table 1, the initial cost estimate has more than quadrupled, from about $1.1 billion to about $4.5 billion in the latest estimate, while the initial time estimated to complete the cleanup has increased by about 50 years (from 1990 to 2041). Several factors contributed to these changes. The initial 1978 DOE estimates were preliminary, using available information and experience rather than detailed designs. Furthermore, according to DOE officials, when the initial estimate was made of project costs and cleanup duration, it did not adequately consider the changing environmental landscape for this first-of-a-kind project and did not anticipate the complex regulatory environment and laws that have since come into existence. In addition, as we previously reported, DOE management problems occurred at West Valley in the 1980s, resulting in cost and schedule overruns. As also shown in the table, during the 1990s, the estimated costs for West Valley varied, with totals ranging from $3.8 billion to $5.8 billion. Moreover, different estimates both extended and shortened the estimated schedule, with the estimated increase in the duration of the cleanup ranging from 15 to 51 years. These different totals reflect different, evolving departmental initiatives to quantify the total costs and schedule of the Department’s cleanup effort across the nuclear complex. Causes of variations in the estimates have included different estimation methods and varying major assumptions related to cleanup and nuclear waste disposal. For example, DOE officials said the June 1996 Baseline Report estimates for West Valley were part of a first departmental attempt to quantify the extent of the cleanup problem complexwide, and these estimates were not precise. They were taken from data supporting the site’s 1996 draft EIS and simply averaged the cost of several cleanup alternatives shown in the draft. The July 1996, 1997, and 1998 estimates for West Valley were lower than the Baseline Report estimates, in part because they were based on departmental guidance that called upon DOE’s sites, including West Valley, to use ambitious assumptions aimed at accelerating the cleanup and reducing costs within current budget trends. For example, these estimates assumed an accelerated period of about 10 years to complete the cleanup, off-site interim storage of the high-level waste canisters, and generally flat funding of $123 million annually. Accelerating the cleanup schedule at West Valley without funding adjustments created a substantial planning gap between funding needs and availability within the given time frame. The Department proposed closing the gap through cost savings generated by conducting cleanup projects more efficiently. However, according to DOE West Valley officials, the idea of accelerating the cleanup of West Valley to achieve completion in 2005 was not realistic and could not be implemented. The current estimate of about $4.5 billion with completion in 2041 is based on DOE’s latest cleanup plans for West Valley. DOE officials said this estimate is reasonable, solidly grounded, and the best available based on known information. The estimate, according to these officials, includes opportunities to lower the cost as well as areas that could end up costing more. For example, the current estimate indicates completion of major cleanup tasks by the mid-2020s, and assumes that the high-level waste canisters cannot be shipped to a permanent off-site repository until 2036 through 2040 (with site closure in 2041). According to DOE, although this time frame assumes a lack of earlier access to a prospective permanent repository, such as Yucca Mountain, earlier shipment is a possibility if a valid contract assigning disposal costs can be signed with New York State. Shipping them earlier, such as in the mid-2020s, would lower the total cost of the cleanup. Conversely, some cleanup tasks, such as dealing with the melter used in vitrification, might cost much more than currently estimated because of uncertainty about how to conduct these tasks. DOE officials recognize that the current estimate is uncertain, in part because it does not reflect an agreed-upon cleanup level and site end use. Depending on the cleanup level, on-site cleanup costs could vary widely, as illustrated in the analysis done for DOE’s 1996 draft EIS for West Valley. In the draft EIS, DOE outlined action alternatives ranging from limited remedial actions, referred to as “in place stabilization” of the contamination (at costs ranging from about $400 million to about $1.1 billion, depending on specific options), to more extensive actions such as “on premises storage” of the contamination in new facilities (at a cost of about $3.7 billion), to full cleanup of the site to an unrestricted end state—referred to as the “removal” option (at a cost of about $8.3 billion). A DOE official said that until an appropriate end state for the site is agreed upon, any estimates of total West Valley cleanup costs and completion date will not be entirely credible. The problems DOE faces at West Valley reflect many of the same dilemmas it faces elsewhere in the nuclear complex. West Valley is yet another example of how complicated, uncertain, and subject to cost and schedule changes the cleanup process can be, especially at technologically difficult cleanup sites where an appropriate cleanup level and land use have not been agreed upon and multiple types of contamination are involved. In such circumstances, planners find it difficult to estimate with a reasonable degree of certainty an individual cleanup project’s overall costs and schedule. By extension, DOE’s ability to quantify with a degree of certainty the costs and timetables for the cleanup across the entire complex is to some degree in question—especially at other, larger DOE sites that also lack fully agreed-upon cleanup levels and/or end states. With regard to nuclear waste disposal, West Valley is part of an approaching national decision on what to do with the over 200 underground tanks across the DOE complex and the traces of high-level wastes left in them after vitrification. Are the tanks to be dug up, using technologies that are still to be developed and that potentially require significant expenditures, and removed to an as-yet-undetermined disposal location, or can they be safely left in place and under long-term stewardship? The Natural Resources Defense Council is currently challenging in court DOE’s waste management order that could permit a tank “entombment” strategy to be implemented at West Valley and elsewhere. Since the late 1980s, DOE has been committed to estimating total cleanup costs and schedules complexwide. Such estimates are potentially useful to the Department in planning for over 300 cleanup projects at its over 100 nuclear sites. The estimates are also useful to the Congress in fulfilling its oversight responsibilities, and they help to inform the public about the status of the cleanup program. These estimates have grown over time as more is learned about the number of sites contaminated and the types of contamination. However, as we have previously reported, these estimates have varied considerably, and their reliability has been questioned. In April 1999, we reported that the uncertainty of DOE’s estimates of the cost and schedule for the complexwide cleanup was a matter of concern and depended on various programmatic assumptions. Such assumptions may include funding levels, the facilities and wastes that are to be included in the scope of the analysis, the availability of waste disposal options, or other factors. West Valley’s recent widely varying cost and schedule estimates call into question DOE’s estimates at other sites, especially those that lack agreed- upon cleanup levels and land uses. Many sites across the complex lack a final agreement with their regulators, such as EPA and the state, on the cleanup levels that must be achieved—that is, “how clean is clean.” Furthermore, two of the largest cleanup sites in the complex, Savannah River and Hanford, have long-term cleanup goals that have been less than completely defined. Hanford has a land use plan, but cleanup levels and disposal standards remain to be established, and Savannah River has a comprehensive site use plan, but land uses could change significantly as they are further considered by interested parties. Moreover, like West Valley, both sites face decisions on high-level waste disposal and the disposition of their on-site underground storage tanks. The disposition of these tanks—51 at Savannah River and 177 at Hanford—remains a multibillion-dollar cost uncertainty. The estimated total costs at these two sites alone will likely dominate DOE’s cleanup program for the foreseeable future because they account for a major part of the cost of the entire program. (In 1998, Hanford’s total costs were estimated at about $50 billion and Savannah River’s at about $30 billion, compared with a then- estimated complexwide cost of $147 billion.) On a complexwide basis, DOE’s cleanup cost and schedule estimates are likely to be revised as more becomes known at many sites about the levels of cleanup that must be reached and the technologies to be used. In this regard, the Department has made some recent strides in improving the quality of its annual estimates of the costs and schedule for cleaning up the complex. As we reported in 1998, DOE has called upon field offices to provide more information on (1) the range of potential site cleanup options for sites whose cleanup levels are uncertain and (2) long-term maintenance and surveillance costs for sites that have been cleaned up. The latest estimate, about $198 billion, is based on a range of from $184 billion to $212 billion. According to DOE, the range reflects uncertainties recognized in the estimate and better communicates the uncertainties of projects that are innovative and complex. West Valley also illustrates some of the dilemmas created by DOE’s approach to funding the cleanup across the nuclear complex. DOE’s current estimate for total West Valley cleanup costs is based on maintaining funding for the foreseeable future at current levels—about $107 million a year. This planning approach is referred to as “flat” funding. According to DOE officials, DOE’s Ohio Area Office has implemented the flat funding approach for West Valley and four other nuclear cleanup sites in the region that it oversees. DOE Ohio and West Valley officials said they do not consider the flat funding approach appropriate for West Valley, but they said it is the policy direction of DOE headquarters, on the basis of Office of Management and Budget direction. DOE Ohio and West Valley officials said the Ohio office receives an annual cleanup funding allocation for the five cleanup sites combined, including West Valley. In recent years, these offices have worked within the current “flat” budget estimates while at the same time working to accelerate the cleanup—an ambitious undertaking. Flat funding may not always be cost-effective. In fact, according to DOE officials, the cost profile of cleanup projects is generally not flat: Often, annual costs increase early in the project and are followed by declining costs in later years. As a result, flat funding can add to overall costs and extend the time needed for project completion. Ohio and West Valley DOE officials agreed that flat funding may be a factor in the costs and time required to complete the West Valley cleanup, but they said any extra funds directed to West Valley could reduce the amount of funds directed to one or more of the other sites overseen by the Ohio office. In 2000, a departmental analysis done at West Valley showed that incrementally higher funding for West Valley could help to complete the cleanup faster and with substantial cost savings. Specifically, if the West Valley cleanup could be funded at about $130 million annually from 2006 through 2013, and at $135 million in 2014 and 2015, instead of $107 million for those years, West Valley’s total cleanup costs could decrease by about $509 million and essential cleanup tasks could be completed about 8 years earlier. Funding constraints at West Valley are not unique. They reflect DOE’s funding dilemma across the nuclear complex. Complexwide, the Department has assumed that cleanup work will be funded annually at the same level. This assumption is based on recent appropriations and Office of Management and Budget guidance to promote balanced federal budgets, according to DOE officials. For DOE’s nuclear cleanup program, such an approach can result in a significant gap between the funds needed for the complex cleanup versus the funds available, leading to cleanup delays and cost growth. To illustrate, as we testified in June 2000, projected annual cleanup needs for 2001 through 2010 at DOE’s Paducah, Kentucky, uranium enrichment plant could exceed average annual funding by many millions of dollars. This gap could delay the Paducah cleanup and add to its overall costs. Extended across the complex, the costs multiply. In 1998, DOE estimated a complexwide gap of $3.9 billion from 1999 to 2006 (in 1998 dollars), assuming flat funding of the Department’s cleanup program at $5.75 billion a year. Our 1999 report on DOE’s accelerated cleanup strategy questioned whether DOE sites could achieve the assumed cleanup goals and schedule, given the flat funding assumption. On the other hand, according to DOE, fiscal realities are likely to prevent fully closing the gap between funding needs and available funds. As the first DOE location likely to have all of its on-site high-level waste vitrified, West Valley is a potential early test case on the important issue of tank entombment versus removal. According to DOE plans, a record of decision on the disposition of the site’s high-level waste tanks could be issued in 2005. At West Valley, four tanks are involved, but Hanford and Savannah River, which are also involved in making tank disposition decisions, have a combined total of over 200 tanks. At issue is whether these tanks are to be dug up, at great potential expense, and removed to locations not yet chosen, or whether they can safely be left in place and subjected to long-term stewardship. Tank closure is addressed in DOE orders, as well as in NRC decommissioning requirements and EPA and state of New York RCRA closure requirements. A DOE radioactive waste management order (O435.1) and accompanying manual provide a process that can result in reclassification of high-level wastes, allowing for the possibility of managing the wastes as low-level wastes. This could allow traces of the high-level wastes to remain in place, entombed in the tanks. In the waste management manual, these traces are referred to as “wastes incidental to reprocessing.” With regard to Savannah River and Hanford, NRC has been advising DOE on its methodology for classification and stabilization of incidental waste. In the case of Hanford, NRC recommended three criteria for categorizing the wastes as incidental. Under these criteria, first, the wastes must be processed to remove key radionuclides to the maximum extent technically and economically practical; second, it must be shown that the wastes will be incorporated in a solid form at a concentration that does not exceed applicable concentration limits in applicable regulations (10 C.F.R., part 61); and third, the wastes must be managed pursuant to the Atomic Energy Act to meet safety requirements comparable to the performance objectives in the regulations (10 C.F.R., part 61, subpart C). In the case of Savannah River, NRC in June 2000 approved a more risk- informed and performance-based approach in analyzing DOE’s methodology, principally aimed at satisfying the first and third criteria. For West Valley, NRC is considering whether to deal with the incidental waste issue in its cleanup standards. Dealing with the tanks at West Valley and elsewhere will be costly and challenging. If West Valley follows these criteria and empties the site’s four tanks as completely as technically feasible and at “economically practical” costs, and leaves them in place, such a decision would preclude anything approaching an unrestricted future use for the site. Conversely, according to DOE estimates, if the wastes are removed off-site so that future use of the site can be unrestricted, total cleanup costs for the site could roughly double, to over $8 billion. Moreover, this estimate is very uncertain because technologies for cutting the tanks up and removing them from the ground have yet to be developed. By extension, at Savannah River and Hanford, more extensive technological challenges and broader decisions costing many more billions of dollars are at stake. Any decision on what to do with the tanks will be controversial. Some local interested parties appear to support to some degree DOE’s idea of entombing the West Valley tanks, recognizing that digging them up would be costly, may not be technologically feasible, and would put workers and the public at greater risk of radiation exposure. There is some indication that New York State could agree to a form of tank entombment that would involve something less than an unrestricted land use for the site. However, the state’s Energy Research and Development Authority has said that if incidental waste is to be left at West Valley, DOE should remain on-site to administer long-term institutional controls. Some, including New York State officials, have spoken in favor of the idea of monitored retrievable storage of the tanks. On the other hand, according to the Natural Resources Defense Council, the West Valley Act makes no provision for incidental quantities of high-level wastes to be exempted from permanent off-site disposal. The matter may be resolved in the courts. Currently, the Natural Resources Defense Council is challenging in court DOE’s radioactive waste management order that could permit a tank “entombment” strategy to be implemented at Savannah River and other DOE sites. In addition, according to a DOE official, there could be a legal challenge to any record of decision at West Valley to entomb the site’s high-level waste tanks. Substantial cleanup progress has been made at West Valley, particularly the successful vitrification of the site’s high-level wastes. However, several factors are affecting the costs and pace of the remaining cleanup, and need resolution. In particular, if the differences between DOE and New York State on strategic issues affecting the site’s future continue, including disagreements over their respective roles and responsibilities, they will likely further limit the precision of cleanup planning and potentially add to the costs and schedule for the West Valley cleanup. DOE and the state have spent several years trying to resolve their differing views on their long-term stewardship responsibilities at West Valley, particularly who will pay for permanent disposal of the site’s vitrified wastes, and the extent to which the site is to be cleaned up. The recent breakdown in negotiations, along with the historical federal-state conflict on who should take responsibility for West Valley’s wastes, indicates to us that the two parties simply may not be able to resolve these issues on their own. In addition, the long-standing NRC-EPA disagreement on cleanup levels for NRC- licensed sites could have ramifications for West Valley’s cleanup levels and costs. In June 2000, we raised as a matter for congressional consideration the need to clarify the two agencies’ regulatory responsibilities relating to decommissioning NRC-licensed sites. In this context, specific steps by EPA and NRC to avoid dually regulating West Valley are warranted. Finally, a timely decision about the final disposition of West Valley’s high- level and transuranic wastes could save hundreds of millions of dollars. Because DOE and New York State appear to be unable to reach an agreement on their future responsibilities under the West Valley Act, the Congress should consider amending the act to clarify their responsibilities—especially their respective stewardship responsibilities for historical radioactive contamination left on-site and their financial liabilities for fees that are to be paid for permanent disposal of high-level waste in an off-site repository. To help address NRC’s and EPA’s regulatory responsibilities at NRC- licensed sites, we recommend that, specifically for West Valley, the Chairman, NRC, and the Administrator, EPA, in coordination with New York State, agree on how their different regulatory cleanup criteria should apply to the site. To resolve where West Valley’s high-level wastes should go, once DOE’s and New York State’s stewardship and cost-sharing responsibilities have been clarified, and potentially save hundreds of millions of dollars, we recommend that the Secretary of Energy pursue the timely removal of on- site vitrified high-level wastes, where feasible, either directly to a permanent repository, or to an interim site until a permanent repository is available. To clarify where West Valley’s transuranic wastes should go and potentially save millions of dollars, we recommend that the Secretary of Energy pursue timely removal of the site’s transuranic wastes to an interim off-site storage location, or to WIPP for permanent disposal, as appropriate, either through administrative action or by seeking an amendment to the WIPP Land Withdrawal Act. We provided DOE, the New York State Energy Research and Development Authority, NRC, and EPA with a draft of this report for their review and comment. DOE found the report to be a credible synopsis and assessment of the issues West Valley faces, while New York State concurred with the report’s conclusions that clear radiological requirements, an agreed-upon preferred cleanup alternative, and resolution of nuclear waste disposal issues are critical to the success of the cleanup. However, in their comments, DOE and New York State continued to differ on who should assume ultimate responsibility for the wastes generated by past commercial reprocessing at West Valley. For example, DOE stated that, under the West Valley Act, it does not become the owner of the site and that after site decommissioning it does not envision a continuous on-site presence or long-term operational control there. DOE did say that in the event it leaves wastes behind, in the interest of public health and environmental protection, it would bear at least part of the financial responsibility for monitoring any remedies it had put in place. In contrast, New York State commented that one of the complicating factors at West Valley has been the conflicting interests of the state as site owner and DOE as site operator, and stated that one way to resolve conflicting jurisdictions on-site would be for DOE to agree to assume title and custody of the site pursuant to the Nuclear Waste Policy Act of 1982. Finally, the Department supported our recommendations concerning regulatory cleanup standards and the disposal of transuranic wastes, but disagreed with the recommendation on high-level waste disposal, stating that the Department has no disposal obligation until New York State enters into a disposal contract under the Nuclear Waste Policy Act. In this regard, we have modified the wording of our recommendation to more clearly recognize that resolving the question of responsibility for the high- level wastes is part of any long-term solution regarding their disposal. DOE and New York State also provided technical clarifications on the draft report. NRC’s and EPA’s comments were limited to technical clarifications—NRC’s by letter and EPA’s by e-mail. We incorporated all four agencies’ clarifications in the final report where appropriate. (The DOE, New York State Energy Research and Development Authority, and NRC comment letters are included in apps. III, IV, and V.) As arranged with your offices, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days after the date of this letter. At that time, we will send copies to the Honorable Spencer Abraham, Secretary of Energy; the Honorable Richard Meserve, Chairman, Nuclear Regulatory Commission; and the Honorable Christine Todd Whitman, Administrator, Environmental Protection Agency. We will also make copies available to others upon request. As requested, we examined (1) the status of the cleanup, (2) factors that may be hindering the cleanup, (3) the degree of certainty in the Department of Energy’s (DOE) estimates of total cleanup costs and schedule, and (4) the degree to which the West Valley cleanup may reflect, or have implications for, larger cleanup challenges facing DOE and the nation. Specifically, to address the status of the cleanup, we interviewed and obtained documents from several federal, New York State, and local area officials associated with West Valley. Specifically, we spoke with representatives of, and/or obtained documents from, the following agencies: DOE, including the headquarters Offices of Environmental Management, Civilian Radioactive Waste Management, Environment, Safety, and Health, General Counsel, and Inspector General; and the DOE Ohio and West Valley field offices; The Nuclear Regulatory Commission (NRC) and Environmental Protection Agency (EPA), including headquarters and regional officials of both agencies; and New York State’s Energy Research and Development Authority and Department of Environmental Conservation. In addition, we interviewed representatives of, and/or obtained documents from, the Coalition on West Valley Nuclear Wastes, the Citizen’s Task Force on West Valley, the Seneca Nation of Indians, and the Natural Resources Defense Council. To obtain information on past site status, we examined several GAO reports issued since 1977, as well as historical DOE reports. In addition, in order to independently assess DOE’s environmental, safety, and health performance at West Valley, we talked to a range of federal, state, and local officials and examined DOE and NRC safety and oversight reports. In addition, we examined DOE data on West Valley in several departmental databases related to environmental, safety, and health matters. To address factors that may be hindering the cleanup, we interviewed and/or obtained documentation from representatives of many of the above-listed federal, state, and local agencies and other interested parties. Using this documentary and testimonial evidence, we examined in particular the pace of the National Environmental Policy Act’s compliance process at West Valley, as well as matters at issue in negotiations between DOE and the state of New York on their responsibilities for the site. Our review was limited in that these negotiations were and continue to be considered confidential between the two parties. As a result, while we had access to various details of the negotiations, this report does not fully describe the negotiating positions of the two parties. Additionally, we documented the status of NRC’s development of cleanup standards for the site, as well as the current status and potential future disposition of the site’s high-level and transuranic wastes. To address the degree of certainty in DOE’s cleanup cost and schedule estimates, we interviewed DOE headquarters, Ohio, and West Valley officials and obtained documentation from them. To compare DOE’s cost estimates to clean up the West Valley site that were made at different times since 1978, we converted the estimates of future costs to year-2000, present value dollars, using a 5.5-percent discount rate (i.e., the U.S. 30- year Treasury bond rate at the time of our conversion). For all cost estimates except the 1978 estimate, we used annual cost data (annual cost data for the 1978 estimate was not given) to make the conversion process more precise. To further obtain meaningful comparisons, we added historical annual costs to any DOE estimate that did not already include these costs, and future valued (i.e., escalated) all historical costs to year 2000 dollars using the actual U.S. 30-year Treasury bond rate for the respective year of each estimate. For the 1978 estimate, we future-valued the lump-sum amount to year-2000 dollars, using an 8.5-percent rate (i.e., the actual 1978 30-year U.S. Treasury bond rate). Because the 1978 estimate was a lump sum, its conversion to year-2000 dollars slightly biases upward the resulting year-2000 cost estimate, thereby reducing the estimated increase of the other cost estimates above the 1978 estimate. To address the degree to which the West Valley cleanup may reflect, or have implications for, larger cleanup challenges facing DOE and the nation, we compared our analysis of West Valley with analyses we and others have performed of DOE’s environmental management and nuclear waste disposal programs. We used this comparison to develop observations about West Valley’s cleanup in context with the cleanup challenges at other DOE sites. We performed our review from June 2000 through April 2001 in accordance with generally accepted government auditing standards. The following are GAO’s comments on the letter dated April 13, 2001, from the Acting Assistant Secretary for Environmental Management, Department of Energy. 1. We agree that the West Valley Act does not require DOE and New York State to reach an agreement on the overall future of the site or how DOE should complete its responsibilities there. We also agree that the National Environmental Policy Act (NEPA) encourages DOE and the state to cooperate on environmental decisionmaking. Accordingly, wording in the final report has been clarified. Furthermore, we believe DOE’s stated policy of cooperation with the state in addressing strategic issues related to the West Valley cleanup—and its specific pursuit of negotiations with the state—is a preferable course of action as well as key to progress with the cleanup. Nevertheless, because DOE and the state appear to be unable to reach agreement on these strategic issues, we have raised the matter of clarifying their on-site responsibilities for congressional attention. 2. We agree that DOE does not become the site owner after the cleanup is completed, and wording has been clarified in the final report to reflect DOE’s views. However, we believe DOE’s ongoing and prospective cleanup tasks, as the Department views them under NEPA and the West Valley Act, are inevitably related to West Valley’s overall future—its ultimate end state and land use. For example, if DOE’s mandated tasks are to involve leaving the high-level waste tanks in place, this could preclude achieving an end state for the site that would permit unrestricted land use. Considering this, we believe it was appropriate that DOE and New York State, in their recent unsuccessful negotiations, attempted to reach agreement on the site’s overall future—in the form of a preferred cleanup alternative or “vision” for the site. 3. We have clarified wording in the final report to reflect DOE’s views. Nevertheless, from reading both DOE’s and the New York State Energy Research and Development Authority’s comments on our draft report, it remains unclear to us if or when the proposal will be revived and/or formal negotiations resumed. 4. We have modified the wording of our recommendation on high-level wastes to more clearly recognize that resolving the question of ultimate responsibility for the wastes is part of any long-term solution regarding their disposal. The following are GAO’s comments on the letter dated April 11, 2001, from the Program Director, West Valley Site Management Program, New York State Energy Research and Development Authority. 1. We agree with this comment about the use of the term “cleanup level” and have changed the title of the final report and selected language throughout the report. The following are GAO’s comments on the letter dated April 13, 2001, from the Executive Director for Operations, Nuclear Regulatory Commission. 1. Where appropriate, wording reflecting NRC’s clarifications has been added to the final report.

Summary: The West Valley nuclear facility in western New York State was built in the 1960s to convert spent nuclear fuel from commercial reactors into reusable nuclear fuel. New York State, the owner of the site, and the Atomic Energy Commission--the predecessor of the Nuclear Regulatory Commission (NRC) and the Department of Energy (DOE)--jointly promoted the venture. However, the timing of the venture was poor because the market for reprocessed nuclear fuel was limited and because new, more restrictive health and safety standards raised concerns about the facility. West Valley was shut down in the 1970s, and Congress enacted the West Valley Demonstration Project Act in 1980, which brought DOE to West Valley to carry out cleanup activities. This report examines the: (1) status of the cleanup; (2) factors that may be hindering the cleanup; (3) degree of certainty in the Department's estimates of total cleanup costs and schedule; and (4) degree to which the West Valley cleanup may reflect, or have implications for, larger cleanup challenges facing DOE and the nation. DOE has almost completed solidifying the high-level wastes at West Valley, but major additional cleanup work remains. These tasks, which could take up to 40 years to complete, include decontaminating and decommissioning structures, remediating soil and groundwater, and removing nuclear wastes stored and buried onsite. The following three factors are hindering DOE's attempts to clean up West Valley: (1) DOE and New York State still have not agreed on the overall future of the site, (2) NRC cleanup standards for West Valley do not exist, and (3) cleanup planning has been limited by uncertainty about where West Valley's nuclear wastes are to go. In addition, DOE's estimates of the total costs and completion date for the West Valley cleanup are uncertain because of a lack of agreement on many strategic issues affecting the site, such as the extent to which the site is to be cleaned up, what it will then look like, how the land is to be used, and what regulatory cleanup standards are to be used. DOE's plan to deal with the underground high-level waste storage tanks at West Valley has potential implications for other DOE disposal efforts.