[Senate Hearing 106-1014]
[From the U.S. Government Publishing Office]
S. Hrg. 106-1014
NUCLEAR REGULATORY COMMISSION: REGULATORY REFORMS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
CLEAN AIR, WETLANDS, PRIVATE PROPERTY AND NUCLEAR SAFETY
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
MARCH, 9, 2000
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred sixth congress
BOB SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
Dave Conover, Staff Director
Tom Sliter, Minority Staff Director
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Subcommittee on Clean Air, Wetlands, Private Property,
and Nuclear Safety
JAMES M. INHOFE, Oklahoma, Chairman
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
ROBERT F. BENNETT, Utah JOSEPH I. LIEBERMAN, Connecticut
KAY BAILEY HUTCHISON, Texas BARBARA BOXER, California
(ii)
?
C O N T E N T S
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Page
MARCH 9, 2000
STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 33
Graham, Hon. Bob, U.S. Senator from the State of Florida......... 5
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Lieberman, Hon. Joseph I., U.S. Senator from the State of
Connecticut.................................................... 33
Voinovich, Hon. George V., U.S. Senator from the State of Ohio... 2
WITNESSES
Adelman, David, project attorney, Nuclear Programs, National
Resource Defense Council....................................... 26
Prepared statement........................................... 88
Beedle, Ralph, vice president and chief nuclear officer, Nuclear
Energy Institute............................................... 23
Prepared statement........................................... 78
Responses to additional questions from Senator Bob Smith..... 99
Domenici, Hon. Pete, U.S. Senator from the State of New Mexico... 35
Jones, Ms. Gary L., Associate Director of Energy, Resources, and
Science Issues, General Accounting Office...................... 25
Prepared statement........................................... 83
Kennedy, William, E., Jr., member, board of directors, Health
Physics Society................................................ 28
Prepared statement........................................... 36
Meserve, Richard, Commissioner, Chairman, Nuclear Regulatory
Commission; accompanied by Commissioners Nils Diaz, Jeffrey S.
Merrifield, Edward McGaffigan, Jr., and Greta Joy Dicus........ 6
Comments, Yucca Mountain..................................... 49
Letter, Yucca Mountain....................................... 46
Prepared statement........................................... 38
Responses to additional questions from:
Senator Inhofe........................................... 44-73
Senator Smith............................................ 73-77
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama...... 19
Prepared statement........................................... 96
ADDITIONAL MATERIAL
Letter to Chairman Meserve, several Senators..................... 35
Statements:
Health Physics Society....................................... 97
Metals Industry Recycling Coalition.......................... 96
(iii)
NUCLEAR REGULATORY COMMISSION: REGULATORY REFORMS
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THURSDAY, MARCH 9, 2000
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Air, Wetlands, Private Property
and Nuclear Safety,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:03 a.m. in
room 406, Senate Dirksen Building, Hon. James M. Inhofe
(chairman of the subcommittee) presiding.
Present: Senators Inhofe, Voinovich, and Bennett.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. The meeting will come to order.
Today's hearing continues the ongoing oversight of the
Nuclear Regulatory Commission. I would like to welcome Chairman
Meserve, nice to have you here. This is your first oversight
hearing and I'm sure you'll enjoy it.
[Laughter.]
Senator Inhofe. Since the first hearing in July 1998, there
have been many changes at the NRC. We had the relicensing
program underway and reforms have taken place on the
enforcement side and the NRC is moving toward more risk-based
approaches.
For the first time in years, people are beginning to look
at nuclear energy in a different light than they have in the
past as perhaps a viable option for our energy needs in the
future. It is a safe, clean, cost efficient and reliable fuel
source when managed properly.
The NRC has an important mission to ``ensure adequate
protection of the public health and safety, the common defense
and security and the environment in the use of nuclear
materials in the United States.'' I think it is important to
understand the mission of the NRC and the fact that they are
charged with protecting public health and the environment. The
NRC remains the foremost government agency on issues involving
nuclear safety and the impact on public health and the
environment.
Unfortunately, this issue was lost in the recent debate
involving the nuclear waste storage facility. I want to
reassure the Chairman and the Commissioners that as far as this
subcommittee is concerned, you are indeed the recognized
experts on this issue.
There are a number of issues that I would like to have
addressed today, either in questions or in testimony. There are
a total of nine:
No. 1, Is the relicensing process on schedule; will the NRC
be able to handle multiple applications at once or are we going
to end up with a bottleneck problem?
No. 2, I'm still interested in the NRC's 5-year strategy
plan. Last February I asked the GAO and the NEI to review the
plan when it was finished. Unfortunately, this seems to be the
nature of any bureaucracy--you don't get it until your deadline
and we didn't get it until last week, so I'm not sure how much
time the GAO and the NEI have had to look it over, but we want
to talk about that in some depth.
No. 3, is the NRC continuing to move toward a risk-based
approach for regulations in enforcement and is it working.
No. 4, I'm interested in hearing the results on the
Enforcement Pilot Program the NRC conducted this past fall.
No. 5, I'm concerned that the EPA has proposed standards
for Yucca Mountain which are unworkable and did not follow the
advice of the National Academy of Sciences. I'm interested in
the NRC's perspective on this.
No. 6, we will have witnesses on the second panel
addressing the metals recycling issue. I'd like to hear whether
it is really a health and safety issue or a matter of public
perception. Mr. Meserve, in that respect, I'd like to have you
stay to hear the second panel so that we would have that input
and maybe some debate.
No. 7, the GAO has completed their report on whether the
changes at the NRC are filtering down to the rank and file
employees. I'd like to hear peoples' perspective on those
results. This involves changes and generally speaking, the
rank-and-file don't like changes. I would like to know how that
is coming.
No. 8, the subcommittee will be addressing the
reauthorization of the Price Anderson Act which provides an
insurance program for nuclear facilities. Are any changes to
the law needed to come up with a plan that is going to offer
adequate protection.
Finally, No. 9 and most importantly, is public safety being
protected?
Senator Voinovich.
OPENING STATEMENT OF HON. GEORGE V. VOINOVICH,
U.S. SENATOR FROM THE STATE OF OHIO
Senator Voinovich. Thank you, Mr. Chairman.
I'm pleased to be here this morning for this hearing on the
operation and program management of the Nuclear Regulatory
Commission.
I went to your website; you're familiar with what it says,
but it is quite a responsibility. The very nature of nuclear
materials makes the job of the NRC one of utmost importance. It
is up to the NRC to make sure that our Nation's nuclear
facilities are running at their safest possible level. Equally
important is the safeguarding of our nuclear materials from
misuse. The NRC is probably one of the few agencies in the
entire country where the job requirement is 100 percent
perfection. Failure to maintain strict safety requirements
could have a disastrous impact on millions of people.
It is also up to the NRC to make sure the United States has
enough high quality nuclear material for the purpose of
maintaining an effective nuclear weapons arsenal. One of our
only four processors of this high quality material is the
Portsmouth Gaseous Diffusion Plant in Piketon, OH. As our
witnesses may be aware, I have a longstanding interest in the
future of that plant.
Since 1954, at the beginning of the cold war, the
Portsmouth Plant's purpose was to enrich uranium for use in
nuclear weapons and propulsion systems for naval vessels. Over
the years, thousands of dedicated men and women in the civilian
work force at Piketon helped keep our military fully supplied
and our Nation fully prepared to meet any potential threat.
Their success is measured, in part, with the end of the cold
war and the collapse of the Soviet Union.
As the Commissioners and the chairman are aware the U.S.
Enrichment Corporation, which operates that plant, announced
last month it would reduce its work force by 20 percent in the
Portsmouth Gaseous Fusion Plant in Piketon, OH and its sister
plant in Paducah. The NRC recertified USEC operation in both
plants in January 1999, primarily based on USEC's investment
grade corporate rating. However, on February 4, Standard &
Poors downgraded USEC's credit rating to below investment grade
level.
The agreement on post closing conduct that USEC entered
with the Department of Treasury outlined significant events
which would allow USEC to close down one of its facilities.
Because of their current downgrade, is NRC reevaluating its
finding of ``inimicality''? That's one thing.
Under the USEC Privatization Act, the NRC is authorized to
review whether USEC's license would be inimical to the common
defense and security of the United States or the maintenance of
a reliable and economical source of enrichment services. To put
it in a nutshell, just how important is that facility to our
country's preparedness, both civilian and militarily? I would
very much like to know what NRC thinks about it.
Another issue I'm concerned about is the long-term storage
of high-level nuclear wastes. I have talked with the chairman
about this on several occasions. Without a long-term solution
to this problem, the Perry and Davis-Besse Nuclear Plants in
northeast Ohio will reach maximum capacity in 2007 and 2017
respectively. If a permanent storage solution is not reached,
it could jeopardize the viability of one or both of these
plants. This is an important issue to Ohioans since
approximately 12 percent of the electricity generated in Ohio
comes from them.
The American people have contributed--and I think this is
really important--some $15 billion to design and construct a
permitted home for high-level nuclear waste. Just over $6
billion of that has already been spent. Since 1977 when the
Davis-Besse Nuclear Plant was built, Ohioans have paid more
than $287 million into this fund, $22 million just this last
year. It is unconscionable for the Federal Government to
continue to impose this tax without using these funds to finish
constructing the permanent site.
Last month, like 63 of my colleagues, I voted in favor of
S. 1287, the Nuclear Waste Policy Amendments Act, to get the
Federal Government off the dime. The point is, all this money
has been coming in, part of it has been used, but the rest of
it has gone into the General Fund of the United States and is
spent for something else. The question is, when, if ever, is it
going to be built and is it fair to continue to collect this
money that goes into the General Fund?
I've said to the people that have been paying this, the
utilities and others who passed the cost on to their customers,
when it finally comes time to be built, where is the money
going to come from to build it. So I think all of us really are
concerned about this. I think as a Nation, we have to stop
playing politics and get on with it.
One final item I'd like to bring up with the NRC is our
Nation's lack of a coherent, cohesive energy policy. This is
obviously an issue that will need to be addressed particularly
in light of recent increases in prices for home heating oil and
gasoline. I don't think we have any energy policy.
We talk about what source of energy are we going to use in
this country. Recently, Mr. Chairman, there was a meeting in
Cleveland of some folks that were concerned about moving
nuclear wastes through the city. My initial reaction was, you
don't have to worry about that occurring because before they
build that plant, I'll be in the ground, most of us will.
The other aspect of it that was of interest to me is they
were opposed to nuclear energy. They are opposed to nuclear
energy, they are opposed to fossil fuel and when asked the
question, what energy source, they said solar.
Just think in terms of our Nation, we ought to start
talking about these sources of energy that we have. Is nuclear
power a viable source and if it is, we ought to make that clear
and talk about its environmental benefits and get into this
dialog. It just seems too often that the only people we hear
from are the ones who are against everything. We don't hear
enough from the people who really have all of the information,
get them out and talk about the realities. In this particular
case, we'd like to hear from you. Where do you stand on nuclear
energy? Is it a viable source of energy for this country in the
future? Should it be expanded?
We know for sure that one of the problems with it has been
over the years that we still don't know what we're going to do
with our waste.
Mr. Chairman, I appreciate the opportunity to be here this
morning.
Senator Inhofe. Thank you, Senator Voinovich. You bring up
a real good point because one of the reasons I'm going to have
to leave for just a few minutes during the course of this
committee hearing is we have Secretary Richardson in the Senate
Armed Services Committee. I can remember last year when we were
developing our authorization bill, they talked in the
President's budget about the money that was going to go into
defense. I looked at the line and it was fuel savings, all this
money they were going to save from fuel.
I said at that time, it's not going to be a fuel savings.
At that time, I think it was $10 a barrel. That it was going to
go up because we have allowed ourselves, with a lack of energy
policy in this country and I blame the Republican Presidents
and Democrat Presidents alike for not having one. I really
believe in the next Administration, we should just insist that
we have one, have a cornerstone of that policy as to the
percentage of dependency on foreign oil that we would have and
we wouldn't get ourselves in the position we are.
We're in the position right now because we have allowed our
domestic industry to atrophy, to be run out and then
artificially manipulated down low enough so they are gone and
now they are bringing it back up again. All the time in our
Administration, we have our Secretary of Energy running around
talking about how we can artificially get other people to do
things they don't want to do. So we're going to have to face
that.
When you talk about nuclear energy, I see a difference out
there now from 10 years ago when people were really hysterical
about the use of nuclear energy. Now it has a good safety
program, it's clean, it's efficient. You look at other
countries in which 80 or 90 percent of their energy is nuclear
energy. I think we may have to be looking very carefully at
this in the near future.
We have our first panel, which is Senator Jeff Sessions who
is not here yet. I do want to accommodate him because he and I
are on both committees working right now.
Why don't we do this. Mr. Meserve if you and our four
Commissioners would come to the table, we can have opening
statements and then after our opening statements, I might ask
if Senator Sessions is here if you would allow him to just sit
down and make a few statements and you folks come back.
Let's start with the opening statement. Chairman Meserve,
again, I am looking forward to working with you in the capacity
that you hold now. I welcome you to your first committee
hearing.
Why don't we use the stop, change, go lights here and try
to hold your opening statement to about 5 minutes. Your entire
statement will be made a part of the record. Without objection,
I will enter Senator Bob Graham's statement as a part of the
record.
[The prepared statement of Senator Graham follows:]
Statement of Hon. Bob Graham, U.S. Senator from the State of Florida
Mr. Chairman, the U.S. Nuclear Regulatory Commission (NRC) plays a
vital role in shaping our Nations electric energy production technology
mix. Its mission of regulating the licensing and operation of
commercial nuclear power reactors as well as the industrial use of
nuclear materials and the transport, storage, and disposal of nuclear
materials and waste is critical in our efforts to operate safe and
efficient nuclear power plant facilities in the U.S. Nuclear power
plants currently generate approximately 20 percent of the nation's
electric energy. Our experience with nuclear power generation since our
first commercial nuclear reactors went on line in the early 1960's
shows that nuclear power electric generation in this country is an
efficient, safe and clean source of electric energy. Western Europe and
Japan share this view. France generates approximately 79 percent of its
electricity from nuclear power; Belgium, 60 percent; Sweden, 42
percent; Switzerland, 39 percent; Spain, 37 percent; Japan, 34 percent
and the United Kingdom, 21 percent.
Today the world is focused on reducing greenhouse gas emissions
from coal, oil and gas fired power plants, and other fossil fuel fired
boilers and equipment in response to concerns about global warming.
Nuclear power plants produce virtually no greenhouse gas emissions.
Therefore, the continued use of nuclear power as a substantial
component of our Nations electric generation mix along with other major
electric energy generating sources is a prudent course for the Nation
to follow. However, no new nuclear power plants have been ordered in
the U.S. since the late 1970's. Additionally, no new nuclear plants
have commenced operation since the early 1990's. It is possible
therefore that we may experience a situation in the not too distant
future where a significant number of our current 103 commercial nuclear
powered electric generating plants will have reached the end of their
useful life with no new nuclear replacement plants coming on line. It
is estimated that in a period of less than 15 years about one third of
our nuclear plants may be retired. If this estimate is correct, coal,
oil, or gas fired electric generating units are the most likely types
of generating facilities to make up the bulk of this replacement
generation capacity. Without nuclear power we will be increasing, not
decreasing our greenhouse gas emissions. Concerns over global warming
and our experience with the safe and efficient operation of our nuclear
plants demand that we find a way to ensure an appropriate level of
nuclear power generation in our Nation's future electric energy
technology mix.
I want to commend the NRC on its work in regulating the nuclear
power industry in the U.S. and ask that it continue its ongoing efforts
to ensure that the relicensing of nuclear powered generating plants is
done as efficiently and rapidly as possible while remaining consistent
with applicable laws, regulations and NRC requirements.
Thank you, Mr. Chairman.
Senator Inhofe. All of you will have any length of
statement you want. We'd like to ask the four distinguished
Commissioners to try to withhold their response to Mr.
Meserve's opening statement to 2 or 3 minutes.
Mr. Meserve, welcome.
STATEMENT OF COMMISSIONER RICHARD MESERVE, CHAIRMAN, NUCLEAR
REGULATORY COMMISSION; ACCOMPANIED BY COMMISSIONER NILS DIAZ,
COMMISSIONER JEFFREY S. MERRIFIELD, COMMISSIONER EDWARD
McGAFFIGAN, JR., AND COMMISSIONER GRETA JOY DICUS
Mr. Meserve. Mr. Chairman, Senator Voinovich, it is a
pleasure to appear before you today with my fellow
Commissioners to discuss the Nuclear Regulatory Commission's
accomplishments, the challenges before us, our budget submittal
and our legislative program.
Let me first introduce my fellow Commissioners: Greta Joy
Dicus, Nils J. Diaz, Edward McGaffigan, Jr. and Jeffrey S.
Merrifield who join me here. All of us appreciate the interest
of this subcommittee in our work.
I last appeared before the Environment and Public Works
Committee for my confirmation hearing. I told the committee at
that time that in my view, the NRC was generally on the right
track but needed to maintain momentum in its many initiatives.
My experience over the past 4 months has confirmed this view.
Let me turn first to our accomplishments. I will highlight
just a few of the major areas that I know are of concern to
this subcommittee. I understand that you have a continuing
interest in the status of license renewal and you have a
question you raised this morning.
It should be noted that we have met or exceeded every
milestone in our review of the Calvert Cliffs and the Oconee
license renewal applications. The Calvert Cliffs license
renewal is currently pending before the full Commission. The
staff has recommended, based on its review of the safety and
environmental issues, that the Commission approve the license
renewal application. The Commission intends to reach a decision
on this matter in April which is within 24 months after the
application was received. The Oconee license renewal is
similarly on track for Commission decision by July.
Although we have processed these first renewal applications
expeditiously, we have a major effort underway to look at the
generic lessons learned from the license renewal process and to
make improvements for future applicants.
We also know that you were very interested in our ability
to process license transfers expeditiously. I believe the NRC
has an exemplary record in dealing with the complex licensing
transfer cases that are coming before us. We were among the
first regulators to analyze and act on the transfers of the
Pilgrim, Three Mile Island Unit I and Clinton licenses. There
are several other complex licensing transfer cases before us
that arise from the restructuring of the industry. These cases
sometimes require a significant expenditure of energy but we
will make continuing efforts to assure timely resolution of
these matters.
We are also proud of the new reactor oversight process
which is another issue on which you raised a question. We plan
to use that process to inspect, assess and enforce regulations
at nuclear reactors. Last year, we launched a pilot program
involving 13 reactors at 9 sites and we learned a great deal
from that effort.
The results of the pilot program were recently presented to
the Commission with a staff recommendation that we extend the
new approach to the oversight of all of our operating reactors.
The new approach has been endorsed by a broad spectrum of
stakeholders and the initial implementation is to begin at all
power plants in April 2000.
We recognize, however, that this is a work in progress and
we will have to make continuous adjustments, including training
of and interaction with our staff.
I also want to highlight our nuclear materials program for
you. We have a very large number of materials-related
initiatives underway. As with our reactor program, we are
working and making our nuclear materials regulation more risk
informed and flexible. For example, we are in the final steps
of totally revising our regulations covering the medical use of
byproduct material using risk insights together with other
factors to establish requirements that better focus licensee
and regulatory attention on issues commensurate with their
importance to health and safety.
We continue to prepare for a possible Department of Energy
application for a high level waste repository at Yucca
Mountain. In this endeavor, we proposed implementing
regulations that we believe will serve to protect public
health, safety and the environment. We recently provided our
comments to DOE on its viability assessment, draft
environmental impact statement and draft siting guidelines.
We are also continuing our efforts in decommissioning
various sites around the country, licensing of independent
spent fuel storage facility installations, certification of dry
casks, and issues associated with the transportation of spent
fuel and radioactive material.
Almost all of our initiatives, whether in the reactor,
materials or waste programs raise difficult issues on which our
stakeholders have widely differing views. In recent years, the
Commission has broadened the scope and depth of our interaction
with all stakeholders to the benefit of all.
Let me turn now to our budget. To stay the course on the
various initiatives we have underway, we obviously need
resources to do the job. Our Commission has proposed a fiscal
year 2001 budget of $488.1 million. This budget request
represents approximately a 3.9 percent increase or about $18
million over the fiscal year 2000 budget, but it is still the
second lowest budget in the history of the agency in real
terms.
The number of employees at the agency continues to decline
and our budget reflects almost a 20 percent reduction in staff
since fiscal year 1993.
The $18 million increase over our fiscal year 2000 budget
is primarily for the pay raise that the President has
authorized for Federal employees. Two charts reflecting a
summary of our budget since fiscal year 1993 are attached to my
written testimony and are displayed here on the easels.
There is one feature of our budget submission that I know
is of great interest to the subcommittee. As you know, the
Commission has for years acknowledged that there is a
legitimate fairness concern about the fees that are charged to
our licensees. NRC licensees should not be charged fees for
activities that are important to the agency's mission but which
do not directly benefit them. Such activities constitute about
10 percent of our budget.
To address this concern, OMB has approved a graduated
reduction of the percentage of our budget that must come from
user fees. As you know, this is an approach that originated
with this subcommittee last year.
I would like to conclude very briefly by touching on our
legislative program. S. 1627, as reported by the committee,
included many of the provisions that we recommended to the
committee last year. We deeply appreciate your support for
these programs.
There are a few additional provisions that we would
respectfully request you to consider: clarification of our
authority to deal with non-licensees who retain control over
decommissioning funds; elimination of the provisions dealing
with foreign ownership and removing and reviewing any ambiguity
as to our authority to conduct informal hearings. These
provisions are described in our full statement submitted for
the record.
Finally, I would note that the Commission introduced a
provision in last year's request to clarify the status of NRC
licensees who decommission their sites pursuant to our license
termination rules. Our rule was promulgated using a public
process. The rule is consistent with international standards
and is based on sound, scientific research. The rule ensures
adequate protection of groundwater.
The provision which we suggest for your consideration would
clarify that licensees who cleanup to our standard are not
subject to CERCLA except in the rare event in which we or an
Agreement State invite the EPA into the decommissioning to take
advantage of CERCLA remedies. We are seeking to negotiate a
Memorandum of Understanding with EPA on this point but if we
fail, legislation would be the cleanest way to resolve the
issue.
I have tried to present some of our pressing issues and
accomplishments and have requested your support for our budget
and for our legislative initiatives. We stand ready to make
further changes to improve our regulatory programs and we look
forward to your support in our efforts to reach that goal.
Thank you.
Senator Inhofe. Thank you, Mr. Meserve.
If any of the Commissioners would like to react--don't feel
compelled to do so, but if you would like to?
Mr. McGaffigan.
Mr. McGaffigan. Mr. Chairman, we normally go in a seniority
order but I have no remarks. I support the Chairman's testimony
and look forward to questions.
Senator Inhofe. Ms. Dicus.
Ms. Dicus. Again, I think you're going to hear ditto,
ditto, that the testimony we have presented, both the written
testimony as well as the Chairman's oral testimony, is a
consensus testimony that we all contributed to and we all agree
with.
The other point that I'd like to bring up, just to make you
aware, is that I have the pleasure of serving as the
Commission's representative to the National Association of Rate
Utility Commissioners which are the public utility commissions
of your States, the rate setting body.
They met just this week and I testified before them on
Monday and talked to them about Yucca Mountain issues from the
NRC's perspective together with license renewal issues. I
simply want to make you aware of two resolutions that NARUC has
passed in the past year.
The first was entitled, ``Resolution Regarding the Nuclear
Regulatory Commission's Efforts to Improve the Regulatory
Process.'' They support us in that regard and continue to
encourage us to refine and revise our regulatory processes.
The second was entitled, ``Resolution on Proposed Radiation
Protection Standards for Yucca Mountain, Nevada,'' which
encourages the EPA to adopt the NRC's proposed radiological
standards for licensing Yucca Mountain.
I did want to make you aware, if you were not, of those two
resolutions. I appreciate the opportunity to be here to testify
before you today.
Thank you.
Senator Inhofe. Thank you, Ms. Dicus.
Mr. Diaz.
Mr. Diaz. Mr. Chairman, I do appreciate the opportunity to
testify with my colleagues today.
I also wish to express my full support for the testimony
presented by Chairman Meserve on behalf of the Commission. I
believe that it is now time to consolidate our multiple
initiatives over the last 3 years and I believe that we are
working our way toward that end.
I have a practitioner's comment on the broad area of risk
informed regulation, an area that I believe should be properly
defined as focusing attention and resources on what is more
important to safety. Whether we use it for new reactor
oversight, or for licensing, risk informed regulation is more
an encompassing method than a probabalistic analysis.
Risk informed regulation is supported, whatever we're doing
with it, by a strong network of regulations, information flow,
of deterministic results, regulatory and licensing experiences,
and proven practices, enhanced, when appropriate, by
probabalistic risk analysis. In this case, the whole is
stronger than any of the parts.
Regarding the major changes occurring in the industry,
especially utility consolidation and mergers, I believe that
addressing now the issues being brought forth by these changes
in the industry will prepare us well for the immediate future.
Thank you, sir.
Senator Inhofe. Thank you, Mr. Diaz.
Mr. Merrifield.
Mr. Merrifield. Thank you, Mr. Chairman.
I would also support the remarks of our Chairman, Mr.
Meserve. I believe they do reflect the unified position of our
Commission.
A couple of things I would point out, you mentioned in one
of your questions you wanted to ask us about the GAO report as
it relates to the reviews of our staff. I think that it is a
helpful report. Its survey pointed out that we do have to do
enhancements to training, interacting and communicating with
our staff. I think the Commission is committed to doing that.
Our staff has a questioning attitude. As we move forward
with a new inspection and oversight process, it is natural that
they would question that as well and make sure that we have the
highest level of accountability for our inspection and
oversight program. So as it moves along, as they become more
comfortable with that program, I think we will enhance our
confidence, not only in ourselves, but our staff that we have
an appropriate program.
As part of that, we do want to enhance our training. One of
the moves the Commission has recently made is an action to
close our Technical Training Center, a small, 26-member
training body that was located in Chattanooga, TN in 1980 for
the purposes of conducting reactor simulator training for our
staff. That facility was originally located there because of
its proximity to TVA simulators that we utilized.
The Commission has subsequently purchased four simulators.
We believe now that it is more appropriate for those simulators
and that staff to be located near our 1,800 member staff in
Rockville. That is an action that is not supported by the
Tennessee delegation. We would ask and seek the support of this
committee to
ensure that we have the ability to enhance our training and the
ability to have the highest level of health and safety among
our staff.
The last point, you asked about how we are reacting
relative to enhancing our Nation's energy security. I would
point out we have, as of last month, approved the last of three
designs that were submitted to us--the AP-600 design of
Westinghouse for a new PWR reactor; we had previously signed
off on the GE advanced boiling water reactor; and the
Combustion Engineering System 80 Plus.
So the Commission has acted as a whole in approving three
new advanced nuclear reactor designs. Those are on the shelf
and waiting for an order by a utility and a request for us to
judge the individual license. So we have acted in that regard.
Thank you.
Senator Inhofe. Thank you, Mr. Merrifield.
I'm going to inject a couple of questions I want to make
sure we get in before something happens here. Senator Voinovich
does have to go chair another committee. I'll turn it over to
you after that, Senator Voinovich, for the questions you have,
then we will go back to the regular order.
The first question we had at the last hearing we had is
probably appropriate for this hearing too, Mr. Meserve. You
mentioned that you're meeting every milestone. Specifically,
are you on track for finishing each license renewal application
within the 36 months?
Mr. Meserve. Yes, we are. We will be acting on the Calvert
Cliffs application by April which means we will have completed
that in 24 months.
Senator Inhofe. It sounds like you're a little ahead of
that schedule then?
Mr. Meserve. Similarly with the Oconee application, we are
on track to complete action by July which would similarly have
us in well under the 30-month period. I believe that is also
about 24 months.
Senator Inhofe. Will you be able to keep up that pace? I'm
thinking about the time when you might have 10 applications at
one time. Will a bottleneck occur?
Mr. Meserve. We have been trying to work with the nuclear
industry to try to work out arrangements so that we can
basically develop a queue of license renewal applications so
that we don't have a whole series of them that have to be
processed at one time. We've asked the industry to basically
let us know 5 years in advance of the filing so that we can
plan to be able to accommodate the applications that come in.
Senator Inhofe. How does the concept of giving credit for
an existing program come into effect when you're looking at
this?
Mr. Meserve. We examine a limited set of issues in the
licensing renewal process, with a particular focus on those
issues that are associated with the extension of the life of
the reactor, so we are very concerned about aging issues and
making sure that the plant can continue to operate safely for a
more extended period.
The focus of the relicensing activity is to make sure there
are aging issues which have been addressed, there are
maintenance programs that are appropriate in place to be able
to handle the extended period, if there are analyses that were
time limited in the original application, to make sure those
are examined to make sure they are appropriate to allow
continued operation.
We have tried to focus the activity in relicensing on the
issues that bear directly on the decision we are making,
whether the extension of the license is appropriate and will
provide adequate protection of health and safety.
Senator Inhofe. Mr. Meserve, on the second panel, Mr.
Adelman, who has already submitted his testimony, refers to the
fact that ``The NRDC is opposed to the NRC proposed rule on the
issue of metals recycling.'' I didn't know you had already
proposed a rule.
Mr. Meserve. We have not.
Senator Inhofe. Then what is he referring to?
Mr. Meserve. We have engaged in an interaction with the
public on whether we should proceed with the development of a
clearance rule, which is what we call the matter referred to by
Mr. Adelman. In that process, we published an issues paper in
the Federal Register from which we sought comments. We have
engaged in four meetings in various parts of the country in
order to get public reaction as to whether we should proceed
with a rule in this area and if we do so, what its content
should be.
Staff is preparing an evaluation of all that information
and will be submitting it to the Commission so that we can make
a decision later this spring as to whether to proceed with the
rulemaking in this area.
Senator Inhofe. So right now the staff is gathering the
information together so that you will then be able to come make
a determination even if you're going to have a rule, not just
necessarily what the rule is going to be?
Mr. Meserve. That's correct.
Senator Inhofe. We will ask Mr. Adelman that question.
Senator Voinovich, I know you have to leave. Why don't you
go ahead and take all the time you need.
Senator Voinovich. I have actually two questions. The first
deals with my statement I made and that is that nuclear energy
accounts for practically 20 percent of our Nation's electrical
use. Of this, USEC supplies 75 percent of the enriched uranium
for our domestic needs, with the other 25 percent supplied from
foreign enrichers. USEC also serves as the executive agent for
the United States and the Russian Highly Enriched Uranium
Program.
Of USEC's share of the enriched uranium market,
approximately half of the material the corporation sells is
from the Russian HEU agreement. Therefore, one-half of our
Nation's supply of enriched uranium is from foreign sources.
What are the Commission's thoughts on the current reliance
on foreign produced fuel for our nuclear energy needs?
Basically, if a decision should be made to shut down USEC,
we're not going to have any facility to enrich uranium. The
question is what is your reaction to that?
Mr. Meserve. We are obligated by the Congress in examining
the certification of the USEC facilities to make an assessment
as to whether the issuance of the certificate and the operation
of the facility is sufficient to maintain a reliable and
economical domestic source of enrichment services. I believe
that reflects the Congress' judgment about the importance of
our having domestic capability to provide enrichment services
which obviously not only serve as an ingredient to producing
fuel for nuclear power plants but also have defense purposes.
I understand and the Commission would understand that the
Congress has asked us to look at the viability of the USEC
operations in order to assure that we have a domestic
capability to provide enrichment services.
Senator Voinovich. So the answer is that in the event that
you'd have to pull the plug on USEC for some reason or other,
we still need to have a domestic source of enriched uranium to
take care of our domestic and military needs?
Mr. Meserve. That's my understanding of why Congress wanted
us to look at that. It is a kind of review we don't undertake
in the nuclear power plant area. My understanding would be that
Congress has asked us to examine this issue specifically
because of the importance of maintaining a domestic capability.
Senator Voinovich. I think it fits in with the other
problem we're having right now and that is in terms of domestic
oil supply. We kind of just ignored that and we're more reliant
today than ever before on foreign oil, not only from a cost
point of view but also now from a national security point of
view if something would happen, particularly some of the people
we're getting oil from aren't necessarily our best friends.
The last thing has to do with your budget. Do you know what
percentage of your budget right now is going for training?
Mr. Meserve. I don't know the precise number. I'd be happy
to submit that for the record. We do have a 26-person training
facility, as Commissioner Merrifield indicated, in Chattanooga.
That's all we have in Chattanooga, the training facility. We
have wanted to bring those people to our headquarters in order
to integrate the training that's now undertaken at Chattanooga
with the training that also takes place at headquarters.
We view this, as Commissioner Merrifield indicated, as an
enormously important activity at a time when there is very
significant change underway at the Nuclear Regulatory
Commission. We have a need to make sure that our staff fully
appreciates the new directions that we're taking. We think
having that facility where the bulk of our employees are is the
way to assure that the training is adequate.
It also allows an interaction between the trainers and our
technical staff at headquarters to make sure that there is a
close linkage of the new directions in regulation with the
training activities. That is going to be facilitated if we can
have these operations co-located.
Senator Voinovich. I'd be interested in comparisons in
terms of the money you're spending on training. The hearing I'm
going to be chairing in a half hour or so is on the human
capital in the next century. One of the things I have observed,
looking at the budgets of various Federal agencies, is that
over the years, they have really cut back on training at a time
when training is more important than ever before. So I'd be
interested in those numbers.
Mr. Meserve. I'd be happy to provide the figures. We share
your view that training, for a technical agency like ours with
a wide range of responsibilities at a time when we're
undergoing a lot of change, is an essential ingredient for our
staff. We need to have an effective training system and we're
dedicated to trying to develop that. The NRC plans to spend
about $10.3 million--more than 2 percent of its fiscal year
2001 budget request--for training. Note that this estimate does
not include the cost of the NRC staff 's time (salaries) for
those who are attending training.
The NRC's fiscal year 2001 budget request is $488.1
million.
Senator Inhofe. I think perhaps the five of you and Mr.
Meserve, your background, would equip you best to answer the
question. On the next panel they are going to be talking about
metals recycling, the level of radiation that would be found in
materials.
I'd like to ask if you could explain what that level would
be and how much of a public health threat that poses?
Mr. Meserve. We haven't undertaken development of a rule,
so there's no basic number that's on the table that we have
introduced as a proposed rule.
The objective that we would undertake, if we were to
proceed with a rule, is to select a number where there was
complete assurance that the public health and safety would be
protected in any reasonable use of the material.
The numbers, for example, that people have talked about as
being an appropriate level for such limit is something on the
order of 1 mr, a unit of radiation. By way of background, let
me say that we all live in a world in which we are all exposed
to radiation.
Senator Inhofe. I was going to say that. I keep hearing
people talk about zero and that doesn't exist, the granite in
the buildings here.
Mr. Meserve. But we all are exposed on average to something
on the order of 300 mr, just by what nature provides us. If you
happen to live in a place like Denver, you're exposed to higher
levels, probably 40 or 50 mr higher as a result of the fact
that the rock there has higher uranium content naturally and
you're at higher elevations. You have more exposure to cosmic
rays.
The variability in natural background is much, much larger
than 1 mr. In fact, the exposure in the United States, I
understand, that just comes from nature is in the order of
magnitude of 100 mr or so at the low range to as high as 1,000
mr.
The number that people have been talking about as a
possibility for a clearance rule is 1 mr, which is way below
the variability in the natural background.
Senator Voinovich. Mr. Chairman, I'd just like to make one
comment just to put things in perspective.
I visited an outfit in Ashtabula, OH, RMI, who extruded
these rods for nuclear reactors and they are decommissioning
the plant. Their cutting that place up into little pieces. I
asked the people running the plant, how risky is this material
and what are you doing with it. They said, we're packaging it
up and sending it out to Nevada to go into a dump out there.
I looked at this and said how much radiation would I pick
up from that if I had it around me? They said, you could have
it on your front porch and you'd get less radiation from that
than you would from flying from Washington out to Denver.
The reason I'm mentioning this is that there are some
people out there that think there is some kind of laxness in
getting rid of some of this stuff and from my perspective, I
thought they were going way overboard in terms of trying to
make sure none of this metal was going to get back into the
supply out in the marketplace.
My reaction would be that anyone that raises the issue
about some of this stuff, plutonium, uranium, is out there
somewhere, I don't give it that much credence, especially after
seeing what they're doing with the material. Every piece of
this place is being chopped up and they're sending it out
there.
Mr. Meserve. May I comment, Mr. Chairman, on that?
Senator Inhofe. Yes, of course.
Mr. Meserve. The dose one would get in a cross country
flight is about 5 mr so the clearance approach that people have
viewed as a possibility is much less than that.
I think there is another important element of this problem.
We are not dealing just with materials that might be released
from a site to go into commerce and could be recycled in
consumer products. The clearance rule would deal with any
material that would be leaving a licensed site. The question
would be, are the levels low enough that they can be handled
the way non-radioactive materials would be handled.
One of the consequences of the approach that we're talking
about would be allowing materials which pose no health or
safety risk to leave the site and to be disposed of in the
normal way. So if you have contaminated dirt, for example, or
contaminated materials that have very low levels of
contamination associated with them, so low that they don't pose
a health and safety risk--you would be allowed to dispose of
them without using the expensive and valuable space in
radioactive waste disposal facilities.
We've been trying to handle these issues as they've arisen
on a case by case basis. We've thought about having an approach
that would be a standardized approach, that would be a clear
rule everyone would understand.
Mr. Diaz. I just want to say that the undertaking for this
analysis that we're doing is just a clear expression of the
concern the Commission has for radiological protection. It is
not to actually ignore it. On the contrary, it's to bring it to
the forefront and deal with it in the best manner that we can
to protect public health and safety.
Senator Inhofe. And at the same time, do it with sound
science and honesty where the people know and are not going to
be scared by something that doesn't exist.
I'd like now to ask Senator Bennett, who has to leave at 10
o'clock, to go ahead and take whatever time he'd like.
Senator Bennett. Thank you very much, Mr. Chairman.
I'd say to the Senator from Ohio I think they're shipping
it to Utah, not Nevada.
Mr. Chairman, I want to congratulate you on your initiative
and leadership in holding these hearings. I understand the
process began about 18 months ago and I think it's the proper,
appropriate activity on the part of the committee because it
gives the agency someone to report to, a benchmark to work
toward.
I remember President Eisenhower used to say that areas that
did not get inspected regularly tended to deteriorate. I'm not
suggesting, Mr. Meserve, that your agency in any way was
deteriorating but I do think the inspection the Chairman has
initiated is something we benefit from and ultimately you too.
I have an issue that I've raised with Chairman Meserve in
the form of a letter. I think perhaps as an indication of the
value of these hearings, I got an answer to that letter last
night.
[Laughter.]
Senator Bennett. So I am in a position to thank him for
that and tell him how grateful I am.
Senator Inhofe. And we received our 5-year plan last week.
Mr. Meserve. I apologize to both of you.
Senator Bennett. I understand that you'd prefer to have me
raise the issue regarding FSRAP and its 1978, pre-1978, post-
1978 issue at the full committee hearings proposed in April, so
I will not pursue that in any detail today.
I do want to thank Chairman Meserve for his letter that did
respond to some of the questions I raised. We will follow up at
the full committee hearing. Our goal is exactly the same as the
one the Chairman has outlined, sound science, an intelligent
way to protect health and safety, moving away from arbitrary
lines that get drawn that maybe don't have any scientific
validity.
Not being a lawyer, and I recognize Senator Sessions is one
of the premiere lawyers in this body, sometimes I get a little
frustrated by the artificial nature of arbitrary decisions that
come down with respect to the law. That's why I want to pursue
this 1978 date because I don't think it has any validity in
science. I think it is a fairly arbitrary situation.
I do thank the Chairman for his response and this Chairman
for keeping the opportunity alive for this kind of exchange and
this Chairman for his response on the issue. I look forward to
a more complete discussion of it in the full committee
hearings.
That is really all I think I need to take the committee's
time for this morning.
Senator Inhofe. Any response to the comments by Senator
Bennett?
Mr. Meserve. We would welcome the opportunity to discuss
the issue with you.
Senator Inhofe. We're embarking upon the reauthorization of
the Price Anderson Act. Is there anything we should
particularly be looking at right now or be aware of as we start
into this process?
Mr. Meserve. The Commission submitted a report on the
reauthorization of Price Anderson in 1998 which urged its
reauthorization and included some relatively minor
recommendations for its reauthorization. The Commission still
stands behind that report.
For example, there was a suggestion that the annual
retrospective premium, which is one of the layers of basic
insurance provided through the Price Anderson Act, might be
raised from $10 to $20 million. In short, there are relatively
minor changes that the Commission has proposed.
Senator Inhofe. We're going to go to our first panel that
was on our schedule but I feel we have kind of shorted some of
the Commissioners. If there are any of the four Commissioners
who have something they feel should be expressed to this panel,
this would be the opportunity to do that.
Mr. McGaffigan. Mr. Chairman, I might just pick up on one
point that Senator Bennett made about the artificial nature of
some of what we do.
One of the big artificial distinctions--and you mentioned
it as well, Mr. Chairman--is the distinction between the
material that we deal with, Atomic Energy Act material, and the
rest of radioactive material. Some day, and I don't think
today's the day, looking at these two sets of material
comprehensively would be a good thing because we regulate
Atomic Energy Act material, EPA has the rest and really can set
generally applicable regulations that apply to us as well.
The suggestion I'm making is that accelerator produced
material, naturally occurring material, technologically
enhanced naturally occurring material, all of that is treated
quite differently.
I come to this business from the Armed Services Committee
3\1/2\ years ago and there is no greater frustration than all
of the ways we have parsed radioactive material over the last
50 years. The lawyers have done it, Senator Bennett, not the
scientists.
Senator Inhofe. Thank you, Mr. McGaffigan.
I want to mention also that I know you have been
renominated by the President for another term. We're looking
forward to getting you confirmed as quickly as possible.
Mr. McGaffigan. Thank you, sir.
Senator Sessions. Mr. Chairman, could I just say for this
panel, I remember you called the first NRC oversight hearing
where I was a member of this committee and my interest was
captured for this subject. I felt the NRC had really stagnated,
that it was time for us to reevaluate it, and we had no
prospect of bringing any new nuclear power plants on-line at
all. I wondered if they were expected just to disappear because
they will all be gone before long.
I thought the employment level at the NRC may have been
appropriate back when we were building nuclear plants but all
the nuclear plants today are mature and have been regulated for
quite a number of years, and no new ones are under
construction. I felt it was time to really shake up things a
bit.
I thought, pleasantly, that maybe the Board also was coming
to the same conclusions and that your leadership affirmed them
and gave them some impetus to follow through with some changes.
I believe some positive steps have been made.
I think there is more that perhaps can be done. I think if
this were a division of United States of America, Inc., they
probably would want a little more downsizing, a little more
reorganization, a little leaner and more effective regulation
than we have today but you're moving in the right direction. I
do think that is a positive step. I just wanted to share that.
Senator Inhofe. Thank you, Senator Sessions. I appreciate
that.
Any other comments? Yes, Ms. Dicus?
Ms. Dicus. If I could, please, I'd like to follow
Commissioner McGaffigan's comments. Something that I frequently
say in speeches that I give around the Nation and
internationally. We do have a mishmash of radiation standards
in this country across the Federal family and in some cases,
across the States. It is confusing to the public, it's
confusing to the Federal agencies, and I keep wishing and
hoping that there is a point in time that we can standardize
our radiation protection standards and that we can settle on a
particular standard that we all adhere to. So I continue to
push for that level.
The Chairman was talking about how flying across the
country is 5 mr and where is the proper standard we should have
for protection of the public health and safety? What is the
proper thing to do if we decide to go forth with a clearance
rule? I would like to see some standardization of our
standards.
Senator Sessions. When you consider risk, does anybody ever
consider the risks of alternatives to nuclear energy, such as
the increased health costs related to coal-fired plants and
higher levels of pollution? How about risks to coal miners, or
risks related to truck wrecks, train wrecks and all those
things that come from relying on fossil fuels? Life is a
constant balancing act between risks and benefits, between
profits and losses. Sometimes we seem to judge nuclear energy
too harshly in terms of risk and environmental damage. It's
environmentally friendly and has demonstrated that it is the
lowest risk energy source by far.
I would like to think that we could develop some policies
that would get us off this path to the end of nuclear power in
America which is where we are headed unless something changes.
Senator Inhofe. Senator Sessions, in our opening statement,
I addressed that same thing. People don't consider the
alternatives and in terms of safety, cleanliness, availability
cost, it's something we need to look at.
Any other comments?
Mr. Diaz. Just an exclamation point to what my fellow
Commissioner is said. Radiological protection is the bottom
line of what we do. We try to do it well, and we'd like to do
it better. We urge your support for the Commission initiatives.
Senator Inhofe. Thank you, Mr. Diaz.
Mr. Merrifield.
Mr. Merrifield. As a follow up to the issue of the
clearance rule that the Chairman talked about, the issue of
science and sound science ultimately is a bottom line for us.
We don't look at this in a vacuum, however. We can't deal with
simply what is going on in the United States. Our European
counterparts, for example, the EU, is going to a 1 mr standard,
so there are materials that will enter into commerce that we're
going to have to grapple with maybe coming from Europe that may
have level of material, and are we, in a uniform sense with
international trading issues, going to grapple with that.
The other issue that we have to deal with is stakeholder
concerns. There is obviously and has been for a long time, a
great deal of concern on the part of a lot of American people
about anything radioactive. So as part of our whole stakeholder
process, we want to get those comments in, we want to
understand what the public has to say about that so we can
include that view in the direction in which we go.
I don't want to leave the impression that we've gone off
one way and are just going to deal with the science. We also
want to make sure we have an understanding of stakeholder's
concerns, whether that's the general public or whether that's
companies, and get their views in there as well.
Senator Inhofe. Thank you, Mr. Merrifield.
We will, at this time, excuse this panel. Mr. Meserve, do
you mind staying and participating in the second panel.
Before introducing the first panel for a presentation which
you may make up here if you like instead of going to the table,
that we do miss you on this committee. I'd like to have you
reconsider and come back.
Senator Voinovich. Even though you are a lawyer.
Senator Inhofe. One lawyer is not so bad.
We will recognize Senator Sessions at this time.
STATEMENT OF HON. JEFF SESSIONS, U.S. SENATOR
FROM THE STATE OF ALABAMA
Senator Sessions. It was a wonderful experience for me to
serve on this committee. I enjoyed every minute. I enjoyed the
issues and I believe we should act with a sense of urgency in
regard to energy in America. We are seeing an extraordinary
rise in prices of gasoline and fuel oil. It indicates to me
that we are not thinking very clearly about our energy policy.
Energy costs and pollution are fundamental factors that
ought to be evaluated as part of establishing an energy policy.
Nuclear power clearly plays a critical role in our energy
supply. It provides over 20 percent of our electric power; it's
one of the cleanest and safest ways to produce power. While the
United States experienced a boom of new nuclear power plants in
the 1960's and 1970's, the last plant was licensed in 1974.
Many of those plants are reaching the end of their life span
today.
During the 2 years I served on this committee, I learned a
great deal about our efforts to combat air pollution. The
committee focused on the need to meet our Nation's air quality
and energy needs.
Under the Kyoto greenhouse gas agreement, which the Senate
refused to consider but the Vice President asked us to ratify,
we were to commit to a goal of reaching by 2012 emission levels
equal to 7 percent below 1990 levels.
What has happened since 1990 is our greenhouse gas
emissions have increased 8 percent. In effect, between now and
2012, if we were to meet the Kyoto accord standards, we would
have to reduce emissions by over 15 percent below today's
emission level.
To further compound the problem, the Energy Information
Agency projects that our demands for energy will increase by 30
percent between now and 2012.
There has also been a very hostile approach by this
Administration to the production of natural gas. The Vice
President has said he believes in no offshore drilling or
additional in the Rockies where the great reserves of natural
gas are. Natural gas, next to nuclear energy, is by far the
cleanest burning fuel that we have.
Natural gas-fired electric plants are the cleanest form of
non-nuclear electricity production. Many utilities are going to
natural gas, but if we shut off our supply in the Gulf, if we
continue to block our drilling abilities in the Rocky Mountain
States and shut off the Alaska reserves, then we're going to be
faced with a serious energy supply dilemma, even before trying
to meet Kyoto's goals.
Energy involves cost, pollution and resources. I sincerely
believe we may be entering a crisis period today. I think it is
insanity for us to believe that we can meet our energy demands
without nuclear power. I don't believe I'm alone in this
position. Members of the Administration--even though the
policies of this Administration have not been favorable to
nuclear energy. In fact, I believe they have been hostile to
nuclear energy. Many of its members have agreed with me.
In 1998 Under Secretary of State Stuart Eisenstadt
remarked:
I believe very firmly that nuclear has to be a significant
part of our energy future and a large part of the western world
if we're going to meet emission reduction targets. Those who
think we can accomplish these goals without a significant
nuclear industry are simply mistaken.
I agree.
In March 1999, the U.S. Ambassador to the International
Nuclear Association, John Rich, at the North Atlantic Assembly
made his speech. I happened to be there and heard it. He made a
clear analysis of all our choices facing us and said, ``Nuclear
power provided the only opportunity for us to meet energy
demands and pollution clean air demands.'' He concluded, ``The
reality is that of all energy forms capable of meeting the
world's expanding needs, nuclear power yields the least and
most easily managed waste.'' That is so obvious as to be
without dispute.
The idea that a great nation can't take nuclear waste and
deliver it out to a desert in Nevada and plant it underground
where it is no threat to anybody is really remarkable to me. It
presents no threat to anyone. It's just been irrational to me
to see the debate that has taken place on the floor of the
Senate about people who would oppose the safe disposal of
nuclear waste and find one excuse after another to not do what
we plainly ought to do. It is stunning to me.
In 1993, Pulitzer Prize winner Richard Rhodes wrote in his
book ``Nuclear Renewal'' that:
Electricity from nuclear fission continues to be the most
comprehensive source of energy available to meet growing U.S.
demand, the cleanest and safest of all major sources.
Many of the problems which have hindered development and
increased use of nuclear power in the United States have not
risen from safety concerns or inherent problems with the use of
technology, but from excessive regulations and high economic
risk associated with licensing and bringing a new plant on
line.
In addition, plunging fossil fuel prices in the late 1970's
and afterwards made nuclear power less economically feasible.
At times there seems to have been an irrational hostility
toward nuclear power. Some of that resulted from actions in
Congress and otherwise, forcing the NRC to put excessive
regulations on our nuclear industry to the point of
micromanagement.
As I said earlier, I do believe we are moving away from
that and I believe we can do better. In the long run, nuclear
energy must remain a significant part of our energy mix.
Between 1973 and 1997, nuclear generation avoided the emission
into the atmosphere of 82.2 million tons of sulfur dioxide and
more than 37 million tons of nitrogen which would have been
released by fossil fuel plants producing the same amount of
electricity.
In 1997 alone, emissions of sulfur dioxide would have been
about 5 million tons higher and emissions of nitrogen oxides
2.4 million tons higher had the electricity been generated by
fossil fuel rather than nuclear. As testimony before this
committee has shown, the impact of these emissions would have
had significant adverse effect on both environment and human
health.
Some believe that nuclear power is dangerous and presents
unacceptable risks. France obviously does not believe that.
Today, 60 percent of their power is nuclear power and it is
growing around the world.
To put the idea of risk in context, a physicist, Dr.
Bernard Cohen conducted a detailed study in 1990 entitled,
``The Nuclear Energy Option.'' It carefully examined the risk
associated with nuclear power. He basis his analysis on two
studies, ``The Reactor Safety Study'' done by the NRC in 1975
and a study conducted by the Union of Concerned Scientists
which I think is less scientifically based but is a study
worthy of examination.
Dr. Cohen states,
According to The Reactor Safety Study the risk of reactor
accidents in the United States would reduce each American's
life expectancy by .12 of 1 day or 18 minutes.
I don't know how these scientist can calculate these things
but they made a serious effort at doing this.
The Union of Concerned Scientists, who have been hostile to
nuclear power, say it would ``reduce life by 1.5 days.'' What
does that mean? It goes on to say:
Since our loss of life expectancy of being killed by any
type of accident is now 400 days, the risk of using nuclear
power would increase that number by .003 of 1 percent.''
He goes on to conclude:
According to the best estimate of established scientists,
having a large nuclear power program in the United States would
give the same risk to average Americans as a regular smoker
indulging in one extra cigarette every 15 years, as an
overweight person increasing his or her body weight by .12 of 1
ounce and is less risky than switching from a mid-size to a
small car.
Clearly the risks associated with nuclear power are
manageable and far less risky than many other forms of
conventional electricity generation--coal, natural gases
pipelines, oil wells--those things we know how to do with great
skill but still they have more risk historically than nuclear
power.
With NRC's renewed focus on minimizing the risk of nuclear
power generation, it is possible to make generation of nuclear
power even safer. I do appreciate what you are doing. I do
appreciate your commitment to real safety and real risk and not
just micromanagement.
Although high costs currently prevent new plants from being
brought on line, we do have virtually complete plants across
the Nation which we might economically be able to bring on
line. One plant in my State, the Belafonte Nuclear Plant in
Scottsboro, is over 85 percent complete. When you go in it, it
looks like you could turn a switch and it would run. Even
though this plant has the ability to significantly reduce air
pollution, fear of NRC regulations adds to the already high
economic risk and contributes to their decision not to step
forward at this time.
I know and believe the NRC would do its best to analyze
that plant effectively. I just have to say when those people
are sitting down at TVA, the Tennessee Valley Authority, and
deciding whether to bring it on, they are concerned that they
could get in the midst of it and have $1 billion or more added
because of unnecessary regulation.
I'd just like to take a moment to recognize a particular
nuclear power plant in my State which I think exemplifies the
way to safely operate a nuclear facility. Last week, TVA's
Browns Ferry nuclear plant set a record for operating a boiling
water reactor for 500 consecutive days without a single
shutdown. This is a significant achievement and one for which
the plant employees, the NRC and the entire U.S. nuclear
industry should be proud.
I've also seen the statistics and I think members of the
Board would agree that every plant in America seems to be
operating better now. All plants are having much better safety
records, they're working out the bugs, they have staffs trained
to the level at which they need to be and we are operating at
much safer levels than before and operating with much fewer
shutdowns.
I believe this Commission has made a significant
improvement in carrying out its regulatory responsibilities
since our first oversight hearings in July 1998 and February
1999. Moving regulatory focus away from micromanagement and
toward risk informed and performance-based regulations appears
to have helped both operators and regulators to focus their
efforts on safety.
I am hopeful the NRC will continue its reforms and continue
to ensure the safety of our nuclear power program while at the
same time striving to eliminate unnecessary costs and to see
what we can do to get this industry back on its feet again to
expand and construct new plants.
Mr. Chairman, during one of our previous hearings, you
correctly pointed out that the NRC could shutdown the nuclear
program in the United States, it had that capacity. If that
happened, we'd lose 20 percent of our electricity. The
potential health and environmental impacts of such a scenario
would be staggering.
Thank you for giving me the chance to come back to this
committee, to talk about an issue about which I care deeply.
Thank you for your leadership in heightening our awareness of
the need to do a better job of managing our nuclear power
industry.
We don't want to kill it off, we don't want to be the only
nation in the world that does not have any prospect of building
a new nuclear power plant. We cannot sit idly by while plant
after plant's life span ends and they have to be closed. To do
so would be both irresponsible and tragic.
Thank you again.
Senator Inhofe. Thank you, Senator Sessions. Again, I
repeat, I miss you on this committee.
You started off talking about some of the things in the
Kyoto Treaty and just for your information, I would like to
have had you on this committee when we had a hearing earlier
this year talking about the fact that, ``Yes, we would like to
have the Administration submit that for ratification so we know
what would happen if it comes to the Senate.'' Instead, we were
trying to analyze the number of things, executive orders and
everything else where they are actually trying to implement
this thing without authority and circumventing us. So, we miss
you on the committee.
Senator Sessions. I would just say thank you for those
comments and would point that when you shut off lands for oil
and gas production, when you clamp down on nuclear power and
you enhance substantially clean air regulations without
providing a source of energy, then you're going to have what
we're having today, an extraordinary increase in the cost of
energy.
We don't have a good policy now as a nation and we, as a
Congress, are going to have to participate in helping to
establish one.
Senator Inhofe. Are you suggesting that the most advanced
industrial nation in the history of civilization can't run on
windmills?
Senator Sessions. That is exactly right. In fact, President
Clinton's appointee, Ambassador Rich, talked about those issues
quite directly and honestly. He said at this time there is no
way these alternative sources of energy can come close to
meeting our needs. He pointed out that the world needs
electricity. In areas of the world where electricity is readily
available, life span is almost twice what it is when not
available.
You care about environment and human life. Production of
power improves the quality of life, and increased the longevity
of life and the health of the world we care about. We need to
figure out ways to increase our energy and not cut back on it.
Senator Inhofe. Thank you, Senator Sessions.
I'd ask now that our second panel come to the table. The
panel consists of Mr. Ralph Beedle, vice president and chief
nuclear officer, NEI; Ms. Gary Jones, Associate Director of
Energy, Resources and Science Issues, U.S. GAO; Mr. David
Adelman, Project Attorney, Nuclear Program, National Resources
Defense Council; and Mr. William Kennedy, Health Physics
Society. We had asked the chairman of the NRC also to join us
at this table, not for opening remarks but just for responses
if called upon.
We will start with Mr. Ralph Beedle.
STATEMENT OF RALPH BEEDLE, VICE PRESIDENT AND CHIEF NUCLEAR
OFFICER, NUCLEAR ENERGY INSTITUTE
Mr. Beedle. Good morning, Mr. Chairman. Thank you very much
and we appreciate the opportunity to be here this morning.
I am the senior vice president and chief nuclear officer of
the Nuclear Energy Institute. The Institute represents the
nuclear industry on public policy issues, including Federal
regulations that apply to the Nation's 103 operating nuclear
plants which produce nearly 20 percent of this Nation's
electricity.
I want to thank you, Chairman Inhofe, for your continued
leader-
ship and the subcommittee for its continued oversight of the
regulatory process for the commercial nuclear industry. This is
particularly important at this time as Congress and
policymakers are
beginning to once again recognize the important role that
nuclear energy plays in meeting our Nation's electricity
demand, as well as our goal of improving our air quality.
Nuclear energy is our Nation's second largest source of
electricity and accounts for two-thirds of all emission-free
electricity produced in the United States. It is and has been
for the last three decades a significant, yet silent partner in
Clean Air Act compliance.
In 1999, the nuclear energy industry enjoyed a record year
of safety and production. Last year, our plants operated a
record efficiency of almost 87 percent, a 9 percent increase
over 1998. This increase represents enough electricity to serve
about 5 million households.
I'm also pleased to report that our nuclear plants have
been operating with excellent safety levels. The industry's
commitment to safety is evident in performance indicators
compiled by both the NRC and the industry.
This report by the World Association of Nuclear Operators
released this month summarizes the record safety performance of
the nuclear plants in the United States. It is attached to my
written testimony and reports that we are setting record levels
of safety for our workers as well as the American public.
The industry's outstanding safety record has set the stage
for the NRC's transition to a new nuclear power plant oversight
process. This process will focus the attention of the industry
and the Commission's inspectors on those areas of the plant
that are most important to safety. NEI supports this process
and urges the Congress to support it as well.
I would like to make just a few comments regarding the
recent GAO report. Although that report included some findings
that are of concern to each of us, it is important that the
subcommittee take note of one important conclusion. That is by
a 2 to 1 margin, the NRC staff believes that a transition to a
regulatory process that incorporates risk insights will improve
nuclear plant safety.
I can tell you that from my experience as the Chief Nuclear
Officer at a large utility that there is skepticism within the
staff whenever you embark on a major transition. Although some
of the staff concerns were addressed in the pilot program, I'm
convinced the GAO report provides two clues to the NRC in their
planning and in their training that would enhance their ability
to make changes.
There is still a need for better long range strategic
planning and more training by the agency as it makes this
significant transition to a new oversight process. The NRC
needs to improve in both of these areas so that the agency
staff will be fully prepared for the planned changes.
NEI has previously testified before this committee about
the need for the NRC to adopt a comprehensive, 5-year strategic
plan. The NRC just last week released a draft of the 5-year
strategic plan for public comment. Earlier this week, NRC
released the five-five planning information document which
incorporates resource projections based on goals and
strategies.
In estimating workload and identifying planning
assumptions, this new planning document provides an improvement
and points toward a more functional long-range planning
document.
We remain concerned about two budgeting issues. First, the
NRC continues to unfairly bill 100 percent of its operating
costs to licensees. Through this subcommittee's effort and
leadership, we hope to receive some relief starting next year.
I'm pleased that the NRC is supporting this long-term solution
to this problem as well.
Second, most of the NRC user fees are collected as a
generic assessment levied against all licensees. This creates,
in effect, a miscellaneous category to describe nearly 80
percent of the NRC's budget. The lack of transparency in the
fee structure does not provide the NRC, the Congress, the
industry or the American public with budget information
necessary to examine that process.
The industry strongly encourages this subcommittee and the
Congress to continue its oversight and to support the NRC's
regulatory reform and the transition to safe focused regulatory
oversight. This new oversight process is promising and we look
forward to industrywide application of the program this April.
I would appreciate the opportunity to return before this
committee and tell you about the progress the industry is
making when the 107th Congress convenes next year.
Thank you, Mr. Chairman. This concludes my remarks.
Senator Inhofe. Thank you, Mr. Beedle.
Ms. Jones.
STATEMENT OF MS. GARY L. JONES, ASSOCIATE DIRECTOR OF
ENERGY, RESOURCES, AND SCIENCE ISSUES, GENERAL
ACCOUNTING OFFICE
Ms. Jones. Thank you, Mr. Chairman. We are pleased to be
here today to discuss the results of our survey of NRC staff on
the move to a risk-informed regulatory approach, the status of
NRC's efforts to develop a strategy to implement this approach,
and the disagreement between NRC and EPA over radiation
standards.
First, let me address the results of our survey. It was
intended to take the pulse of NRC staff on issues related to
moving to risk-informed regulation at a particular point in
time. The survey was conducted in August and September of last
year and 68 percent of the almost 1,600 staff we surveyed
responded.
Our survey results show that the vast majority of NRC staff
feel personally responsible for the quality of their work and
believe their work contributes to protecting public health and
safety. They also generally believe that NRC management is
supportive of their public health and safety efforts.
With respect to NRC's efforts to change its regulatory
approach, however, the staff expressed mixed views. A large
number of NRC staff do not believe that management is receptive
of leading the change process or involving them in the changes
being made. Almost half the staff that responded to the survey
said a risk-
informed, regulatory approach could be effective but only about
a quarter believe that NRC staff have bought into the process.
In addition, many staff expressed concern about the new
risk-
informed oversight process to assess the overall performance of
nuclear power plants. For example, 60 percent of the staff that
responded to the questions about the oversight process agree or
strongly agree that the process would reduce safety margins at
nuclear power plants.
More recently, NRC surveyed 94 regional office staff at the
conclusion of the pilot for the new oversight process. The
survey results showed that NRC staff expressed very favorable
views about the training that NRC has provided about the new
oversight process and the communications with the public.
NRC's results also showed that the staff was not optimistic
about some specific elements of the new process. For example,
70 percent of NRC staff who expressed an opinion do not believe
the process would identify declining safety performance. In
addition, about the same percent do not believe that
performance indicators would adequately alert NRC to declining
safety performance.
I'd like to briefly discuss the status of NRC's development
of a comprehensive strategy for moving to risk-informed
regulation. NRC staff expect to provide the Commission with a
draft strategy, which they are calling an implementation plan,
on March 10, 2000.
In January, NRC staff provided the Commission an outline of
the proposed plan. The outline mentions many of the issues that
we raised in previous reports and testimony--the need for
goals, objectives, performance measures, milestones, training
of staff, and using this document as a management and
communication tool.
Finally, let me say a few words about the disagreement
between NRC and EPA over acceptable radiation levels for
nuclear facilities. This disagreement could increase the cost
to decommission a nuclear power plant and to develop a proposed
repository for the plant's high-level wastes at Yucca Mountain.
Although EPA has authority to establish a standard for
residual radiation at nuclear power plants, it has not done so.
Utilities are using a standard developed by NRC that EPA
believes is not restrictive enough. Utilities are concerned
that they may ultimately have to use a more restrictive EPA
standard, which would increase their decommissioning costs.
EPA has proposed a radiation standard to protect public
health and safety at Yucca Mountain. However, NRC, NEI, the
National Academy of Sciences and others have raised concerns
about the proposed standard.
In 1994, we recommended that NRC and EPA work out their
differences. While we understand a Memorandum of Understanding
is under development right now, 6 years later, a stalemate
seems to exist.
Thank you and we'd be happy to respond to questions.
Senator Inhofe. Thank you, Ms. Jones.
Mr. Adelman.
STATEMENT OF DAVID ADELMAN, PROJECT ATTORNEY, NUCLEAR PROGRAMS,
NATIONAL RESOURCE DEFENSE COUNCIL
Mr. Adelman. First, I want to thank the Chairman and
members of the subcommittee for giving me the opportunity to
testify today.
I want to start by saying that I've generally been dismayed
by the kind of debate that has surrounded the issue of setting
a de minimis radiation standard, particularly that more often
than not, it becomes so polarized that little meaningful
discussion occurs at all.
I believe the DOE and NRC officials bear particular
responsibility for this dynamic because of their inability or
unwillingness to do more than assert the correctness of their
position, without first attempting to explain the basis for it
in a meaningful way to the public.
In my testimony my hope is to identify some of the sources
of the public's concern more specifically. That is, to try
incrementally to move beyond this stalemate toward a broader
discussion that will promote a fuller understanding of the
issues and the bases for public concern.
The NRC, and particularly the DOE, have a long history of
poor relations with the public and failing to safely control
radioactively contaminated materials. The NRC, for example, was
caught flatfooted when it was brought to its attention that the
contractor conducting the technical analysis for its proposed
rule SAIC had a direct conflict of interest, namely that it was
working concurrently for BNFL, the major DOE contractor
responsible for recycling radioactively contaminated metals at
Oak Ridge.
For its part, the DOE has avoided the open public
engagement recommended by a 1996 National Academy of Sciences
study that the DOE sponsored when it chose to proceed with the
massive Oak Ridge radioactive metals recycling project without
complying with NEPA or providing adequate public notice.
There are also numerous examples of DOE releasing
radioactive materials improperly. The recent reports of
improper releases and dumping of radioactive materials at
Paducah is just the most recent example.
In short, if the NRC and DOE cannot manage such materials
in a purported highly regulated environment, what confidence
can the public possibly have that they can release contaminated
materials safely for use in consumer products.
The implementation problems of a standard are equally
serious. The public is skeptical about the NRC's ability to
reasonably evaluate the human health impacts associated with a
de minimis standard. Examples of specific issues are, aggregate
effects of multiple exposures to different contaminated
materials; synergistic effects with other carcinogens; and
assessing the long-term impacts of radionuclides that remain
hazardous for literally thousands of years.
The public is also profoundly concerned about the capacity
of DOE and NRC licensees to release materials safely and in
compliance with whatever standard may be set. The reasons for
this include: the difficulties involved in surveying complex
equipment for contamination and questions about whether proper
instrumentation is available and will be used. None of these
issues has been adequately addressed to the satisfaction of the
public.
The most basic question the public is asking is why
materials contaminated with nuclear wastes need to be recycled
in the first place. What is the underlying policy? This is
particularly relevant given the low value of steel which makes
up the vast bulk of metals that could be recycled. Not even the
economics appear to support recycling such materials. Moreover,
such a standard, when applied to recycling, establishes a
dangerous precedent of turning recycling into a form of
hazardous waste disposal which is achieved by diluting
contaminants in bulk commercial products. At a basic intuitive
level, this just seems like bad public policy.
Neither the NRC nor DOE has provided a clear understandable
explanation for why such a standard is necessary or why in
particular recycling of contaminated materials makes sense.
Lacking public confidence, facing serious public concerns about
practical real-world problems, and failing to address basic
public policy issues coherently, it is no wonder that the NRC
and DOE have run into such strong public opposition.
These concerns must be addressed before proceeding with the
rule or indeed, proceeding with any further releases of
contaminated materials.
Thank you.
Senator Inhofe. Thank you, Mr. Adelman.
Mr. Kennedy.
STATEMENT OF WILLIAM KENNEDY, HEALTH
PHYSICS SOCIETY
Mr. Kennedy. Thank you, Mr. Chairman and members of the
subcommittee for having me here today to present to you
information from the Health Physics Society.
I am a member of the Board of Directors of the Health
Physics Society which is an independent, nonprofit, scientific
organization of professionals who specialize in radiation
safety. I am pleased to testify today on the efforts of the
Society and the American National Standards Institute to
develop a formal, consensus standard on the release of
contaminated materials, including metals, and to comment on the
proposed current NRC rulemaking effort in this area.
I am past chairman of an ANSI writing group to develop
national consensus standards on clearance for the release of
materials from radiological controls. The standard is known as
ANSI N1312 and it was published in January of this year.
I also serve as a consultant to the International Atomic
Energy Agency, the IAEA which is an agency of the United
Nations to help them develop technical criteria for clearance
that can be applied to international commerce.
The Health Physics Society includes over 6,000 members who
are engaged in the practice of radiation safety. As a non-
profit, scientific organization, we are not affiliated with any
governmental, industrial or private entity and therefore, we
are in a unique position to provide informative, scientific
positions that are independent of both government and industry.
In summary on this issue, the Health Physics Society
recommends that first, uniform standard dose criteria for
clearance for release of radioactively contaminated materials
are necessary and important and it is an important part of
protecting public health and the environment from unnecessary
radiation exposures.
Second, radiation protection regulations should be based on
consensus standards, including those issued by ANSI and the
Health Physics Society.
Third, the primary dose criterion should be related to
screening levels that can be used to establish radiation survey
programs that will ensure that the dose levels will be met.
Fourth, the ANSI standard N1312 should be adopted by U.S.
Federal agencies for application to the clearance or release of
these materials.
Mr. Chairman, the Health Physics Society believes that the
establishment of strict dose standards and guidelines for
clearance will ensure that potentially harmful sources are
controlled while conserving our natural resources. We strongly
support the continuing effort of the NRC in this area to
explore the rulemaking and we encourage the NRC to adopt the
criteria outlined in the ANSI standard.
The development and use of release criteria is not unique
to radiation and radioactive materials. For example, the Food
and Drug Administration sets levels for pesticides and other
materials in foods. The Environmental Protection Agency sets
contamination levels in water, air and in soil during the
cleanup of land contaminated with hazardous materials.
The purpose of the ANSI standard is to provide guidance for
protecting the public and the environment from radiation
exposure by specifying a primary dose criteria of 1 mr per year
which is consistent with the recommendations of the IAEA and
with international commerce. The 1 mr per year number is a very
small fraction as we have heard of the doses that Americans
receive from natural background sources.
For example, Americans receive about 300 mr per year from
background, including the radon in their homes and 1 mr is only
about .3 percent of the natural background dose that Americans
receive. For perspective, I'll receive about five times that
dose traveling round trip to appear before this subcommittee by
airplane.
The current proposed NRC rulemaking is focused on the
recycle of contaminated metals and fears that consumer products
will become contaminated to unacceptable levels. Recycling
cleared metals would not mean the dilution of highly
contaminated metal and other metals into commerce. Rather, it
would mean the careful sorting of these metals using standard
criteria such that no metals above the restrictive 1 mr per
year clearance criteria could find their way into commerce. The
credibility of the U.S. radiation protection framework is at
stake here since other countries have already adopted uniform
criteria and we have not.
Industry standards such as ANSI N1312 can play an important
role in the regulatory process. The OMB issued revisions to
Circular A-119 which requires Federal agencies to use voluntary
industry standards developed by the private sector whenever
possible. The purpose of this requirement is to eliminate
excessive costs by the Government to develop its own standards.
Thus, the ANSI standard could play a significant and key role
in development of Federal regulations and policy regarding
clearance.
In closing, the Health Physics Society believes that it is
important that clearance criteria for low levels of radiation
in materials be established to increase the protection of the
public, the environment and health and to ensure that
potentially harmful sources are controlled while conserving our
natural resources.
We strongly support the continuation of the NRC rulemaking
in this area and we encourage the NRC to adopt the criteria
outlined in the ANSI standard N1312. Thank you.
Senator Inhofe. Thank you, Mr. Kennedy.
At our last hearing or the hearing before last, we said we
would like to have the 5-year plan and then have the reaction
from both the GAO and the NEI to that plan. I was a little
critical a minute ago, Mr. Meserve, that the plan didn't get
here a little earlier. On the other hand, I want to thank you
for getting all your testimony in on time. I wish the EPA would
take a lesson from you on that.
Mr. Beedle and Ms. Jones, you've had a chance to look at
this and I'd like to have you briefly address it and get into
any detail you'd like as far as that 5-year plan. Is it
adequate? Your comments about it.
Mr. Beedle. Our preliminary look at the 5-year strategic
plan that was issued last week resulted in the same kind of
conclusion we had previously with regard to the details and
fidelity of that plan. We think that the resource information
that was provided by the Commission to you in a letter dated
March 7 provides far more valuable information in looking at
long range planning.
As I indicated, we have just had a short time to review
that. We would look at both the strategic plan and that
information document as a composite and I think it is headed in
the right direction. I think we are looking at that as an
excellent start to a longer range strategic plan that would be
meaningful for the staff.
Senator Inhofe. Ms. Jones.
Ms. Jones. Two points, Mr. Chairman. One is in terms of the
5-year strategic plan. NRC has made some changes that have been
positive. It reduced the number of strategic areas from seven
to four and they focused those four areas on outcomes. Its
performance looking at outcomes will be easier to track; that
is, whether or not it is meeting its goals in those areas.
The second point I'd like to make is our point in testimony
a year ago before you was NRC needed a focused strategy to
implement risk-informed regulation. In my testimony this
morning, I mentioned it was coming out with that implementation
plan in the next couple of days. The outline we have seen of
that looks very positive. It mentions all the kinds of elements
that we were expecting to see, so we look forward to seeing
that as well.
Senator Inhofe. Mr. Meserve, do you have any comments about
their partly embracing, partly criticizing the plan?
Mr. Meserve. Let me just apologize at the outset for the
delay in our sending the material to you this week. The letter
Mr. Beedle referred to of the 7th had attached to it the
document that was intended to be responsive to your request for
a 5-year plan. He has indicated that document includes the kind
of information he thinks should be in the plan.
The reason there is confusion about it is that we had
developed very aggressive efforts to prepare a strategic plan
which were required to prepare by the Government Performance
and Results Act, that sets out the agency's broad goals and
objectives and various metrics for assessing them.
The material we submitted to you this week was intended to
take that same information and then relate it to resource
information over a 5-year period. We are hopeful that would be
helpful to you in responding to the request you made that we
provide you with information.
Let me say though that this is a very difficult
undertaking. If you had asked us to prepare a 5-year plan 3
years ago as to what we would be doing today, we would have no
doubt predicted that we would have a large part of resources
devoted to decommissioning nuclear plants, and preparing for
the decommissioning of nuclear plants.
As a result of changes in the industry, and I hope as a
result of changes that have been undertaken by the Nuclear
Regulatory Commission, there are now a substantial number of
our operating plants that can continue operation and are
intending to file licenses for license renewal and life
extension. As many as 80 percent of the plants, we understand
informally, may come forward and seek life extension.
In light of that, it is extraordinarily difficult for us to
provide reliable estimates on into the future because our
workload is largely governed by the events that are external to
us.
Senator Inhofe. Thank you, Mr. Meserve.
Mr. Beedle, I'm interested in the new reactor regulations
that are being implemented by the NRC. Now that we have
completed the pilot program, would you comment on how the new
performance indicators used by the NRC for reactor regulation
reflect the safety margins at our nuclear plants?
Mr. Beedle. The new oversight process indeed gives some
focus on the performance indicators and I'll comment on that in
just a moment. I would point out that the oversight process is
more than just a performance indicator. It's a performance
indicator followed by an inspection process, an enforcement
process and a significant determination process that all boil
up into a more effective way on the part of the NRC to provide
oversight for the facilities.
With regard to the performance indicators themselves, there
are 18 performance indicators that are used by the agency to
gauge the safety level of the plant and I think those
indicators which are available on the NRC's website clearly
demonstrate the tremendous margin of safety that exists at
these facilities. I think the levels of thresholds that have
been established by the Commission are aggressive, reflect the
excellent performance in safety and production that the
industry has achieved and I think they go a long way to
providing both the NRC, the industry and the public a detailed
looked at each one of our facilities and how well they operate.
Mr. Adelman, in your testimony you say you are opposed to a
rule which I understand has not been proposed. So what are you
talking about and are you prejudging?
Mr. Adelman. Actually, I think the public's concern was
that the NRC was potentially prejudging.
Senator Inhofe. The what was concerned?
Mr. Adelman. The public's concern is that the NRC was
potentially prejudging its rule. The memo that was sent to the
NRC staff from the Commission presented the issue as almost a
foregone conclusion that a de minimis standard would be set.
One concern of the public was that all the various alternatives
be fully considered before a final rule is determined.
Senator Inhofe. I don't want to sound overly critical but I
keep hearing you say what the public is saying. I don't hear
the public saying this. Tell me who you're speaking for when
you say the public? Is this polling data, do you get it from
newspapers? Who is the public?
Mr. Adelman. There was a poll undertaken by an industry
group in December that assessed different types of recycling
scenarios. In that poll the range of opposition to recycling
was about 60 to 70 percent. So at least initial polling data
indicates there is public opposition.
NRDC is also a large environmental organization. We have
more than 400,000 members spread throughout the country and
there are a number of other large environmental groups that
have similar concerns.
Senator Inhofe. In your comments opposing the development
of a national standard, I want to get into this thing about a
standard. You are opposed to or you don't believe that a 1 mr
range is a standard that should be set. Do you oppose a 1 mr
standard?
Mr. Adelman. I think that NRDC's position is that we don't
oppose the standard in principle. In other words, our belief is
that given adequate data and analysis, in principle a standard
could be set. Our concern is the credibility of DOE and NRC and
the long legacy of mismanagement of, in particular, DOE
facilities.
Senator Inhofe. I guess I'll put it a different way. You
heard Senator Voinovich talk about the cutting up of the plant
and you would oppose that recycling of that, correct, or is it
the method by which it would be recycled?
Mr. Adelman. I think again the central issue here is, given
the problems that have continually been raised about, in
particular, DOE's but even other facilities' management of
radioactively contaminated materials, whatever standard you
set, the public needs to be convinced that standard can be
adhered to and that there aren't going to be unanticipated
risks associated with recycling such materials.
If you look at instances like Paducah, KY that recently
came up this past summer, we find time and again that the DOE,
in particular--which is going to be responsible for recycling
the large bulk of material if this should go forward--hasn't
been able to and continues not to be able to adequately manage
these materials. If they can't manage it in a highly regulated
environment, how can the public have any confidence that they
can release it for use in commercial products?
Senator Inhofe. I'm going to ask if Mr. Meserve has any
response to that statement?
Mr. Meserve. I would like to make a few points. The main
theme Mr. Adelman has raised is that the NRC has not allowed a
meaningful public debate on the issue as to whether there
should be a standard.
In fact, the debate that we're having today and the
discussion that has arisen on this issue is precisely because
the NRC has tried to obtain the views of the public on whether
to have a rule, what the content of a rule should be, and what
the issues are. The purpose of our publication of the issues
paper and of our public meetings that we have had all over the
country has been exactly for the purpose of engaging the public
before we proposed a rule to make sure that we understood the
issues that are of concern.
Senator Inhofe. I'm going to interrupt you at this point,
Mr. Meserve. I have a number of questions I want to ask this
panel I am going to be forced to ask on the record because the
Armed Services Committee I just found out is about to wind up
and we have Secretary Richardson up there and I have a very
critical line of questioning for Secretary Richard.
I am going to have to conclude this but I appreciate both
panels and the time that you have spent. I want you to know
that you will be receiving a lot of questions that we will be
asking you to respond to on the record.
We will adjourn this meeting. Thank you very much.
[Whereupon, at 10:48 a.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Joseph I. Lieberman, U.S. Senator from the
State of Connecticut
Good morning and thank you, Mr. Chairman, for holding this
oversight hearing on the Nuclear Regulatory Commission.
Nuclear energy is a critical component of our power supply in
Connecticut and New England, and I have long been a supporter of
continued research and development of nuclear energy. Because it does
not produce emissions of nitrogen oxides, sulfur dioxide, carbon
dioxide and other air pollutants, nuclear power should be a key
component of our nation's ability to meet its energy needs while also
ensuring clean air for the public.
However, nuclear energy is not without risks, and for that reason I
also support a strong role for the Nuclear Regulatory Commission in
overseeing and managing our nation's nuclear plants. Both Congress and
the public must have confidence in the NRC's ability to ensure that our
nuclear facilities are operated with the highest safety standards. A
strong NRC has been particularly important for oversight of the
Millstone Units in Connecticut, where the NRC investigated federal
safety regulation violations that occurred in 1995. Over the next year,
the Millstone Units will be auctioned to a new owner under
Connecticut's energy deregulation legislation. Again, NRC oversight
will be critical for maintaining strong standards of safety and
management as this transition occurs.
Last April, in response to a request from Senator Biden and me, GAO
issued a report entitled ``Strategy Needed to Regulate Safety Using
Risk Information.'' The report identified some of the challenges that
the NRC and the nuclear power industry could experience in a
competitive environment, and issues that the NRC must address in its
efforts to implement a risk-informed approach to plant safety and
enforcement of oversight programs.
Now, over a year later, the NRC has gained more experience with
risk-informed safety management. A pilot program at 13 reactors will
now be extended to all plants, including Millstone. Overall, I am
hopeful that this new framework will help the agency prioritize the
safety concerns that pose the greatest risk. I am also supportive of
NRC's intention to increase transparency by posting report cards for
every plant on the Internet. Timely sharing of information with the
public can only help enhance the effectiveness of the NRC. It also can
serve a verification role to correct any mistakes that might have been
since performance evaluations are based on a plant's self-reporting.
Today I am interested in hearing from witnesses about what progress
NRC has made in addressing some of the questions raised in the GAO
report. For example, how will NRC monitor the safety of our nuclear
plants in a deregulated environment? How is NRC managing the transition
from traditional to risk-informed regulatory paradigms? What steps is
the NRC taking to improve its base of information on the plant
conditions and modifications to ensure that adequate information is in
place to effectively monitor plant safety?
Finally, I'd like to touch on the issue of NRC's regulatory review
and rulemaking proceedings that could provide for the release of
radioactively contaminated solid materials for use in consumer
products. As has been evident in several news stories about this issue,
the public is very concerned about the potential for radioactively
contaminated materials to be introduced into the metals stream. Once
included, treated metals will not be identifiable in particular
products, and there is a real concern on the part of recyclers and
scrap metal dealers that even if the material is deemed to be safe
under state or federal regulation, consumers may not be satisfied and
will not want to purchase the product. It is absolutely essential that
the NRC do a better job of providing an open, clear forum to proceed
with this rulemaking. I recently joined several other Senators on this
committee in writing to you to raise concerns about how the NRC is
addressing this important issue. I hope that you can provide a response
here today.
I look forward to hearing from the witnesses, and thank all of you
for participating in this hearing today.
__________
STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE OF
CALIFORNIA
Thank you for holding this oversight hearing, Mr. Chairman.
I would like to welcome NRC Chairman Richard Meserve and the other
Commissioners to the committee today. I would also like to welcome Dr.
David Adelman from the Natural Resources Defense Council and the other
witnesses that are here today to discuss the NRC's radioactive
recycling proposal.
I have two very serious issues that I would like to raise.
The first issue involves the NRC's 1998 decision not to require the
Army Corps of Engineers to dispose of low level radioactive waste at
NRC licensed facilities. The second issue involves the NRC's recent
proposal to permit radioactively contaminated materials to be released
into the environment without restriction.
Two recent cases in California involving these issues show how the
decisions the NRC makes on these matters can have a very direct and
potentially harmful impact on the lives of our citizens and our
environment.
The first case involves the Army Corps of Engineers disposal of
2,200 tons radioactive waste in a California dump not licensed to
dispose of such waste. The dump sits above aquifers that supply water
to the Central Valley of California.
When I learned of the Corps action, I immediately demanded that
they remove the waste from the site, and dispose of it properly at a
NRC licensed facility.
The Corps responded to me that they are under no legal obligation
to dispose of this radioactive waste at a NRC licensed low level
radioactive waste facility. The Corps justified this position by
relying upon a 1998 legal opinion supplied by the NRC.
In that hairsplitting NRC opinion, the NRC told the Corps that it
would only require the Corps to send low level radioactive waste to a
NRC licensed facility if the waste was generated after 1978.
According to the NRC, the exact same type of waste did not have to
be disposed of at a NRC licensed facility, however, if it was generated
before 1978.
Since the waste the Corps improperly dumped in California was
generated before 1978, the Corps says it has no obligation to dispose
of it in a safe, NRC licensed facility.
Although the NRC reads the relevant law as justifying this
interpretation, judicial opinions don't support it. I would like to
understand better how the NRC justifies this interpretation. Also, I
understand that citizens have petitioned the NRC to reverse its
interpretation. I would like to hear about the NRC's plans to consider
that petition.
I will shortly introduce legislation to require that this
radioactive waste--regardless of when it was generated--be properly
disposed of in a NRC licensed facility. It will also require the Corps
to remove the 2,200 tons of radioactive waste it improperly dumped in
California, and to properly dispose of it at a NRC licensed facility.
The second case I would like to address involves the Department of
Energy cleanup of a nuclear research and weapons production facility
called Rocketdyne located in Ventura County, California.
As part of the cleanup, the DOE approved the release radioactively
contaminated building debris for disposal at standard municipal
landfills. Shockingly, DOE also released trailers from the site and
sent them to a school to be used as children's classrooms.
Although the trailers were on a site that is heavily contaminated
with radioactive materials, DOE didn't even test the trailers for
radioactive contamination before sending them out to be used as
classrooms.
When I learned of this incident, I demanded that DOE retrieve the
trailers from the school and locate the building debris. I also
discovered, however, that there are effectively no federal legal
restrictions on releases of this kind.
While the fact that we have no legal restrictions against this
practice is bad, the NRC's proposed radioactive recycling proposal is
far worse.
That proposal could fill this legal void with a standard which
would explicitly allow such releases to occur in the future. It could,
for example, allow trailers from radioactively contaminated sites to be
used as children's classrooms, as almost occurred in the Rocketdyne
case.
For this and other reasons I, along with Sens. Baucus, Lautenberg,
Lieberman, Moynihan and Reid, recently sent the NRC a letter urging it
not to proceed with a rulemaking which would provide for these
releases. In the letter, we pointed out that the NRC proposal appears
to be inconsistent with its mission to protect public health and
safety.
We also pointed out that the NRC proposal is nearly identical to
the agency's ``below regulatory concern'' policies of 1986 and 1990. As
you know, in the Energy Policy Act of 1992, Congress specifically
directed NRC not to implement those policies.
I would like to hear the NRC's rationale for pursuing this
discredited policy. I would also like the NRC to discuss any studies
which show that this policy would be protective of public health and
the environment.
I look forward to hearing the NRC's position on these and other
issues today.
Thank you.
__________
STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR FROM THE STATE OF NEW
MEXICO
Mr. Chairman, I thank you for allowing me to submit my comments for
the Record at today's hearing on the Nuclear Regulatory Commission
(NRC). The critical issue of regulatory oversight of our nuclear energy
sector is of tremendous importance to me and a vital factor in
providing for our nation's energy security.
Earlier this year I introduced legislation (S. 2016) to assist the
NRC in its efforts to achieve greater efficiencies and eliminate
outdated restrictions within our nuclear energy sector. Several
provisions from S. 2016 have been included in S. 1627, but several very
important ones were not.
More specifically, my legislation, eliminated anachronistic
provisions that preclude any foreign ownership of power and research
reactors located in the United States. These provisions are a
significant obstacle to foreign investment or participation in the U.S.
nuclear power industry and its restructuring. No valid reasons exist to
prohibit investors from countries such as the United Kingdom from
participating in the ownership of nuclear plants in this country. The
provisions in current law that protect U.S. security interests are
unchanged by my legislation. The NRC strongly endorses removing these
restrictions.
Furthermore, a clarification of the NRC's authority to conduct
informal hearings in specific licensing actions is critical. My
legislation provides that the Commission should not use formal
adjudicatory procedures in cases of amendments or transfers of existing
operating licenses. As Chairman Meserve points out in his testimony
today, informal proceedings are often an appropriate way to involve the
public--not cut them out of the process.
Last, I believe it is imperative to give the NRC the authority to
establish such requirements it deems necessary to ensure that non-
licensees fully comply with their obligations to provide funding for
nuclear plant decommissioning. This includes jurisdiction over non-
licensees, i.e., those who have transferred their license but retain
responsibility for decommissioning. Although the NRC believes it has
this authority, I strongly believe we should clarify this issue.
Mr. Chairman, I am sure everyone is aware of my strong commitment
to nuclear energy. This conviction is well-founded; the recent spike in
oil prices shows that we must get our nuclear energy sector back on
track.
Ensuring diversity and reliability in our nation's future energy
portfolio is a critical national security concern. I want to ensure
nuclear is part of that portfolio. In order to ensure nuclear's
presence in the future, we must pay careful attention to changes in the
regulatory environment now. The NRC is a major component of that
regulatory framework.
I congratulate the NRC on all of their recent progress in
implementing a risk-
informed approach to their oversight responsibilities. I applaud their
progress in
expediting the relicensing process, and their work to create a more
objective, risk-relevant inspections regime. All of these represent
needed and valuable improvements.
I believe it is now Congress' task to assist the NRC in its efforts
by eliminating outdated restrictions and ensuring the statute is
appropriate based on current conditions within the energy industry.
Mr. Chairman, I thank you again for the work this committee is
doing on this important issue.
__________
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC, March 2, 2000.
Dr. Richard Meserve, Chairman,
U.S. Nuclear Regulatory Commission,
Washington, DC.
Dear Chairman Meserve: We are writing to express our serious
concerns with Nuclear Regulatory Commission (NRC) regulatory actions
which could provide for the release of radioactively contaminated
materials for use in consumer products and for other uses. We believe
these actions suffer from several flaws. First, they appear to lack
sufficient justification and support on the record. Even if such flaws
can be corrected, other NRC actions may undermine the objectivity of
the process. Second, and more importantly, we believe that such actions
may be inconsistent with the Atomic Energy Act and the NRC's mission to
protect public health and safety.
As you know, on June 30, 1999, the NRC released an issue paper
seeking public input into the question of whether it should broaden its
current case-by-case approach which permits the release of radioactive
materials for use as consumer products and for other purposes.
Under sections 84 and 161 of the Atomic Energy Act, the NRC has the
general responsibility to protect the health and safety of the public
from unreasonable risks posed by byproduct and other radioactive
materials. Despite the statutory requirement, the major impetus for the
NRC to consider a radioactive release rule appears to be improving the
consistency of its radioactive release regulations among air, water and
solid media.
To our knowledge, NRC has not determined that the actions it is
considering to increase the amount of radioactive material in commerce
will not constitute an unreasonable risk to the health and safety of
the public. Moreover, to our knowledge there have been no NRC economic
analyses of the potential negative impact the proposal or regulatory
changes could have on the metals recycling and related industries.
Finally, NRC has not adequately explained why the consistency of
regulatory treatment among differing media justifies the increased
amount of radioactive materials in commerce that would result.
We would also note that in considering the Energy Policy Act of
1992, Congress specifically rejected the development of a ``below
regulatory concern'' standard.
In addition to our concern about whether there exists an adequate
basis for changing the current system, several other actions undertaken
by NRC suggest that the Commission may have already decided to move
forward with changing the current case-by-case approach, regardless of
the outcome of the public comment and review of the June 1999 proposal.
For instance, a June 30, 1998, NRC memorandum from L. Joseph Callan
to NRC staff directs the staff to focus the rulemaking on ``the
codified clearance levels above background for unrestricted use that
are adequately protective of public health and safety.'' This direction
suggests that NRC may not seriously evaluate the option of not moving
forward with a rulemaking. Rather, it seems to indicate that the
process is designed to justify further deregulation of nuclear
materials rather than objectively analyze whether such a change is
warranted.
This concern is underscored by the selection of Science
Applications International Corporation (SAIC) to perform the technical
analyses that would form the foundation for a rulemaking on this
subject. SAIC handles regulatory compliance issues for businesses that
have a direct interest in the deregulation of radioactive materials,
thereby raising a question of its objectivity on this subject.
In addition, we understand that the NRC has given its tacit
approval of a plan to release approximately 6,000 tons of radioactively
contaminated materials for recycling at the Department of Energy's
(DOE) K-25 facilities on the Oak Ridge Reservation. To our knowledge,
this is the largest proposed release of its kind in history. Allowing
such a plan to move forward in advance of resolving the issues raised
in the NRC proposal raises serious questions concerning whether those
issues can be resolved in an impartial manner.
We believe that until the concerns we have raised are addressed,
and Congress is further consulted, the Commission should not proceed
with any action that could result in increasing the amount of
radioactive materials released into commerce.
We also would appreciate receiving information on the volume of
contaminated materials that have been released into commerce since
1992, separated by licensee, the associated radioactivity, and where
the materials went.
Thank you for your attention and consideration. Please inform us as
soon as possible how the Commission intends to proceed in this matter.
Sincerely,
Max Baucus,
Barbara Boxer,
Frank R. Lautenberg,
Harry Reid,
Joseph Lieberman,
Daniel Moynihan.
__________
Statement of Hon. Jeff Sessions, U.S. Senator from the State of Alabama
Mr. Chairman, thank you for inviting me back to the Environment and
Public Works committee to testify at today's Nuclear Regulatory
Commission oversight hearing. I appreciate your continued leadership on
this important issue. Nuclear power plays a critical role in the United
States energy supply. Providing over 20 percent of the electric power
in this country, nuclear energy is one of the cleanest and safest ways
we have to produce power.
During the two years I served on the this subcommittee--under your
leadership, Mr. Chairman--I learned a great deal about our national
efforts to combat air pollution while at the same time trying to meet
our nation's increasing energy needs. The experience has led me to
conclude that it is insanity to believe that we can meet our energy and
environmental needs without the use of nuclear power.
Fortunately, I am not alone in this conviction. Members of the
Administration and notable nuclear experts seem to agree:
In October 1998, Undersecretary of State, Stuart Eizenstat,
remarked:
I believe very firmly that nuclear has to be a significant
part of our energy future and a large part of the Western world
if we're going to meet . . . emissions reduction targets. Those
who think we can accomplish these goals without a significant
nuclear industry are simply mistaken.
Then in March, 1999, John Ritch, U.S. Ambassador to the North
Atlantic Assembly remarked:
The reality is that, of all energy forms capable of meeting
the world's expanding needs, nuclear power yields the least and
most easily managed waste. (Amb. John Ritch)
In 1993, Pulitzer Prize winner Richard Rhodes wrote in his book,
Nuclear Renewal:
Electricity from nuclear fission continues to be the most
comprehensive source of energy available to meet growing U.S.
demand--the cleanest and safest of major sources.
Many of the problems which have hindered the development and
increased use of nuclear power in the United States has not arisen from
safety risks or inherent problems with the use of the technology, but
from burdensome regulations and high economic risks associated with
licensing and bringing a new plant on-line. In addition, plunging
fossil fuel prices following the 1970's made nuclear power less
economically feasible.
At times, there seems to have been an irrational hostility towards
nuclear power reflected by excessive NRC regulations and Administration
policy which has focused not on safety, but rather on the micro-
management of nuclear plant operation. The cumulative affect of these
developments has forced would be nuclear plant owners to pursue other,
less environmentally friendly, electricity generation sources.
In the long run, however, nuclear energy must remain a significant
part of our energy mix.
Between 1973 and 1997, nuclear generation avoided the emission of
82.2 million tons of sulfur dioxide and more than 37 million tons of
nitrogen which would have been released by fossil fuel plants producing
the same amount of electricity.
In 1997 alone, emissions of sulfur dioxide would have been about
five million tons higher and emissions of nitrogen oxides 2.4 million
tons higher had fossil generation replaced nuclear.
As testimony before this committee has shown, the impact of these
offset emissions could have had a significant adverse effect on both
the environment and human health.
Some believe that nuclear power is dangerous and presents
unacceptable risks. To put the idea of risk in context, physicist Dr.
Bernard Cohen conducted a detailed study in 1990 titled The Nuclear
Energy Option which carefully examined the risks associated with the
use of nuclear power.
Dr. Cohen bases his analysis on two studies, the Reactor Safety
Study issued by the NRC in 1975 and a study conducted by the Union of
Concerned Scientists published in 1977.
Dr. Cohen states:
According to the Reactor Safety Study . . . the risk of
reactor accidents in the U.S. would reduce each American's life
expectancy by .12 day or 18 minutes, whereas the Union of
Concerned Scientists estimate is 1.5 days. Since our `Loss of
Life Expectancy' of being killed by any type of accident is now
400 days, the risk would be increased by .003 (three one
hundredths of one percent) . . .
Dr. Cohen goes on to conclude:
According to the best estimate of Establishment scientists,
having a large nuclear power program in the United States would
give the same risk to the average American as a regular smoker
indulging in one extra cigarette every 15 years, as an
overweight person increasing his or her body weight by .012
once . . . and is less risky than switching from midsize to
small cars.
Clearly, the risks associated with nuclear power are manageable and
far less risky than many other forms of conventional electricity
generation. With the NRC's renewed focus on minimizing the risks of
nuclear power generation, it is possible to make nuclear power
generation even safer.
Although high costs currently prevent new plants from being brought
on-line, we do have virtually complete plants across the nation which
might be economically feasible to complete in the near future. One
plant in my own state of Alabama--the Bellefonte nuclear power plant in
Scottsboro--is over 85 percent complete. Even though this plant has the
ability to significantly reduce air pollution, fear of NRC regulations
adds to an already high economic risk. I am hopeful the continuation of
reforms underway at the NRC will improve the feasibility of eventually
bringing Bellefonte and other partially complete plants on-line.
I would like to take a moment to recognize the employees of a
particular nuclear power plant who exemplify the way to safely operate
a nuclear power plant. Last week, TVA's Browns Ferry Nuclear plant in
Alabama set a record for operating a boiling water reactor for 500
consecutive days without a single shut down.
This is a significant achievement and one for which the plant
employees, the NRC and the entire U.S. nuclear industry should be
proud.
The Nuclear Regulatory Commission has made significant improvements
in carrying out its regulatory responsibilities since this committee's
first oversight hearings held in July of 1998 and February 1999. Moving
regulatory focus away from micro-management and towards risk informed
and performance based regulations appears to have helped both operators
and regulators to focus their efforts on safety. I am hopeful the NRC
will continue its reforms and continue to ensure the safety of our
nuclear power program while at the same time striving to eliminate and
avoid unnecessary regulations and procedures.
Mr. Chairman, during one of previous NRC oversight hearings, you
correctly pointed out that the NRC could shut down the nuclear program
in the United States. If that happened, over 20 percent of this
nation's total electricity would have to be replaced by fossil fuel
plants. The potential health and environmental impacts of such a
scenario are staggering.
Mr. Chairman, thank you for affording me the opportunity to testify
today. Under your leadership and continued oversight, the NRC has
improved the carrying out of its regulatory responsibilities. As a
result, the future of nuclear power in the United States is looking
brighter.
I am hopeful the NRC will continue these needed reforms. The future
of our nation's energy supply depends on it.
__________
STATEMENT OF RICHARD A. MESERVE, CHAIRMAN, U.S. NUCLEAR REGULATORY
COMMISSION
Mr. Chairman and members of the subcommittee: It is a pleasure to
appear before you today with my fellow Commissioners to discuss the
Nuclear Regulatory Commission's accomplishments, the challenges before
us, our budget submittal, and our legislative program. Let me first
introduce my fellow Commissioners, Greta Joy Dicus, Nils J. Diaz,
Edward McGaffigan, Jr., and Jeffrey S. Merrifield. All of us appreciate
the interest of this subcommittee and the series of hearings that you
have held over the past two years.
I last appeared before the Environment and Public Works Committee
for my confirmation hearing. I told the committee at that time that, in
my view, the NRC was generally on the right track. My experience over
the past four months has confirmed that view. During the 105th Congress
the Commission began sending a monthly report on our activities to this
subcommittee and other Congressional oversight and appropriations
committees. We believe that these monthly reports depict an agency that
is successfully managing a host of important initiatives. Our testimony
today will briefly summarize some of the accomplishments that we have
described in greater detail in our reports.
We also believe that our programs have benefited from Congressional
scrutiny and from the scrutiny of other outside stakeholders, both in
industry and in the public interest community. I would like to make
specific note of the report issued by the Center for Strategic and
International Studies (CSIS) since the Commission last met with you.
The ranking minority member of this subcommittee, Senator Graham, was
one of the Congressional participants in that study. This was an
excellent study that told us that the NRC was on the right track, but
that the agency had much more to do. We agree.
ACCOMPLISHMENTS
Let me highlight just a few of the major areas that I know are of
concern to this subcommittee. Mr. Chairman, I understand that you have
a continuing interest in the status of license renewal applications. It
should be noted that we have met or exceeded every milestone in our
review of the Calvert Cliffs and Oconee licensee renewal applications.
The Calvert Cliffs license renewal is currently pending before the full
Commission. The staff has recommended, based on its review of the
safety and environmental issues, that the Commission approve the
license renewal application. The Commission was briefed by the staff on
its recommendation on March 3. In addition, the Advisory Committee on
Reactor Safeguards has advised us to approve the license based on its
independent review of the safety issues. I should note that the U.S.
Court of Appeals for the District of Columbia heard oral argument on
March 2, 2000, on an appeal by the National Whistleblower Center of the
Commission decision to deny the Center an adjudicatory hearing in this
case. Unless the Court orders otherwise, the Commission intends to
reach a decision on the Calvert Cliffs renewal by April, within 24
months after the application was received. The Oconee license renewal
is similarly on track for a Commission decision by this July. Although
we have processed these first renewal applications expeditiously, we
have a major effort underway to look at the generic lessons learned
from license renewal and to make improvements in our process for future
applicants. We now have a large number of future applicants who are
queuing up to renew their reactor licenses--a reflection, we believe,
of our success in responsibly handling these first applications.
We also know that you are very interested in our ability to process
license transfers expeditiously. I believe the NRC has an exemplary
record in dealing with the complex license transfer cases that are
coming before us. We were among the first regulators to analyze and act
on the transfer of the Pilgrim operating license to Entergy Corporation
from Boston Edison. We were among the first to approve the Three Mile
Island Unit 1 transfer from GPU to Amergen, and we promptly acted on
the Clinton transfer from Illinois Power to Amergen. There are several
other complex licensing transfer cases before us that arise from the
restructuring of the industry. These cases sometimes require a
significant expenditure of energy by our staff, but we will make
continuing efforts to assure timely resolution of those matters.
We are also very proud of the new reactor oversight process, the
process that we plan to use to inspect, assess and enforce regulations
at nuclear reactors. Last year we launched a pilot program that
involved 13 reactors at nine sites, and we learned a great deal from
that effort. The results of the pilot program were recently presented
to the Commission with a staff recommendation that we extend the new
approach to the oversight of all our operating nuclear reactors. The
revised oversight process focuses inspection efforts on those aspects
that present the greatest risk. Moreover, performance indicators
covering a range of areas will be available to the public, which should
better enable the public to understand our assessment of the plants.
The new approach also uses a significance determination process to
classify inspection findings, thereby better allowing the NRC and the
licensee to focus attention on the most important safety matters
identified by the inspection. The new approach has been endorsed by a
broad spectrum of stakeholders, and, as I indicated, the NRC intends to
extend the new process to the entire industry. The initial
implementation is to begin at all nuclear power plants in April 2000.
We recognize, however, that this is a work in progress and we will have
to make continuous adjustments.
As the January GAO report to this subcommittee recommended, we are
communicating with our own staff about the new oversight process and
about our risk-informed regulatory initiatives more broadly. Intensive
discussion of how staff concerns with the new oversight process are to
be resolved and intensive training on the new oversight process are now
underway. We believe that the new reactor oversight approach is a
significant improvement over our previous regulatory oversight process,
and the Commission is committed to making these regulatory revisions
work.
I also want to highlight our nuclear materials program for you. We
have a very large number of materials-related initiatives underway. As
with our reactor program, we are working on making our nuclear
materials regulation more risk-informed and flexible. For example, we
are in the final steps of totally revising our regulations governing
the medical use of byproduct material using risk insights, together
with other factors, to establish requirements that better focus
licensee and regulatory attention on issues commensurate with their
importance to health and safety. We are also revising our regulations
governing the licensing of fuel cycle facilities to introduce the use
of an integrated safety assessment, thereby incorporating risk insights
into the regulation of these facilities. We are also working with the
international community to learn about problems associated with
facilities and materials programs abroad, most recently illustrated by
events in Japan and Thailand.
We continue to prepare for a possible Department of Energy
application for a high-level waste repository at Yucca Mountain and, in
this endeavor, we have proposed implementing regulations that we
believe will serve to protect public health, safety and the
environment. We have recently provided our comments to DOE on its
Viability Assessment, Draft Environmental Impact Statement, and Draft
Siting Guidelines for Yucca Mountain.
We are implementing by rule a new registration program for the
control of generally-licensed devices that have the potential to expose
members of the public if such devices are disposed of improperly.
Additionally, we are working with other Federal agencies and States to
address protection of public health and safety from sources found in
the public domain without a responsible owner, often referred to as
``orphan sources''. Our interest in orphan sources also extends
internationally, and the NRC has been assisting the International
Atomic Energy Agency (IAEA) with its program of identifying and
securing orphan sources in member countries. Finally, we have engaged
many different stakeholders in considering the need for a rulemaking to
establish criteria for the release of certain types of slightly
contaminated solid material, the so-called ``clearance rule''.
We are also continuing our efforts in decommissioning various sites
around the country, licensing of Independent Spent Fuel Storage
Facility Installations, certification of dry casks, and issues
associated with the transportation of spent fuel and radioactive
material.
STAKEHOLDER INVOLVEMENT
Almost all of our initiatives, whether in the reactor or materials
or waste programs, raise difficult issues on which our stakeholders
have widely differing views. In recent years, the Commission has
broadened the scope and the depth of our interaction with all
stakeholders, whether from industry or public interest groups, whether
from the Congress or the States. The Commission has sought stakeholder
involvement at both staff and Commission levels in redesigning the
oversight process for reactors, in re-writing our rules on use of
radioactive materials in medicine, in revising our rules on fuel cycle
facilities, and in establishing the decommissioning requirements for
the West Valley Demonstration Project.
In the case of the reactor oversight process that I mentioned
earlier, we formed a formal advisory committee on which representatives
from our various stakeholder groups met with NRC's staff. That body has
helped us to shape the new oversight process and has helped bring a
very broad constituency of support for the new oversight process.
In the case of the West Valley Demonstration Project, the
Commission interacted personally with members of the public at a
Commission meeting in January 1999. Input received from that meeting
was considered when the Commission prepared a draft West Valley
decommissioning criteria policy statement which was published in the
Federal Register in December 1999. We anticipate a final policy
statement by the end of this year.
Thus, we have sought to increase our interaction with the public at
all levels. I hasten to add that we do not expect everyone to agree
with all of our decisions. But we do believe that our decisions are
best when they are made with as much transparency as possible. We no
doubt can further enhance stakeholder interaction, but I can tell you
that we are all deeply committed to improving the scope and the depth
of stakeholder interaction. By doing so we hope to build public
confidence in the Commission and its decisions.
BUDGET AND PROPOSED LEGISLATION
To stay the course on the various initiatives that we have
underway, we obviously need resources to do our job. The Commission has
proposed a Fiscal Year 2001 budget of $488.1 million. This budget
request represents approximately a 3.9 percent ($18 million) increase
over the Fiscal Year 2000 budget, but it is still the second lowest
budget in the history of the agency in real terms. The number of
employees at the agency continues to decline and our budget reflects
almost a 20 percent reduction in staff since Fiscal Year 1993. The $18
million increase over our Fiscal Year 2000 budget is primarily for the
pay raise that the President has authorized for Federal employees. Two
charts reflecting a summary of our budget since Fiscal Year 1993 are
attached to this testimony.
This budget requires us to be very careful in judging priorities so
that we can provide adequate resources in important areas, such as
license renewal and license transfers and the needed preparations for a
potential DOE application for the Yucca Mountain repository. Given the
range of initiatives, we are stretched thin.
The NRC has recently submitted a proposed bill for authorization of
appropriations for Fiscal Year 2001. We respectfully request the
committee's support for our budget request in any managers' amendment
to S. 1627, the authorization bill which your committee reported last
November. S. 1627 currently includes authorization at the requested
level for our Fiscal Year 2000 budget.
There is one feature of our budget submission that I know is of
great interest to the subcommittee. As you know, the Commission has for
years acknowledged that there is a legitimate fairness concern about
the fees that are charged to our licensees. NRC licensees should not be
charged fees for activities that are important to the Agency's mission
but which do not directly benefit them. Such activities constitute
about 10 percent of our budget. To address this concern, OMB has
approved a graduated reduction of the percentage of our budget that
must come from user fees. In Fiscal Year 2001, 98 percent of our
budget, excluding funds from the Nuclear Waste Fund, will be recovered
from user fees. This percentage will decrease at a rate of 2 percent
per year to 90 percent in Fiscal Year 2005. We know we have your
support for this approach because this committee has a very similar
approach in S. 1627.
I would like to conclude by touching briefly on our legislative
program. S. 1627, as reported by the committee, included many of the
provisions that we recommended to the committee last year. We deeply
appreciate your support for those provisions. There are a few
additional provisions that we would respectfully request you to
consider.
First, I would like to mention a provision that is an outgrowth of
the CSIS report that Senator Graham helped prepare. It would clarify
that the NRC has the necessary authority to deal with non-licensees who
retain control over decommissioning funds. This relates to an issue
that arises in connection with various license transfers. We believe we
have authority over non-licensees who retain control over
decommissioning funds, but the CSIS report recommended that this
authority be made crystal clear. We agree that legislation would be
helpful to avoid disputes over the issue and we support a provision to
clarify the point.
Last year we suggested that the foreign ownership and control
provisions in the Atomic Energy Act with regard to nuclear reactors
were no longer necessary. These provisions are not needed because the
law will still retain clear language barring a license to any person
if, in the Commission's opinion, the issuance of a license to such
person would be inimical to the common defense and security or to
public health and safety. We are confident, Mr. Chairman, that no
inappropriate foreign entity, such as a State that supports terrorism
or a State that is a proliferation threat, would ever pass muster under
the revised statute, even if the prohibition on foreign ownership and
control were to be lifted.
Another provision involves Senator Domenici's proposed
clarification of our authority under Section 189a. of the Atomic Energy
Act to conduct informal hearings rather than formal trial-type
hearings. We very much support public involvement in our licensing
process, but we often find that informal hearings are the appropriate
way to engage the public. For example, we are using informal hearings
in license transfer cases under a rule that we promulgated in 1998. We
firmly believe that we have the flexibility to determine whether to use
formalized trial-type procedures or other, less formal hearing
procedures and are considering revisions to our administrative hearing
process. Nevertheless, this is another area in which the CSIS report
recommends that our statute be clarified. Clarification could eliminate
needless disputes over our authority to fashion appropriate hearing
procedures, and we would support Congressional clarification on this
matter.
There is also a provision in our Fiscal Year 2001 authorization
bill that will allow us to provide grants to Agreement States who need
to oversee ``formerly licensed sites''; and to ensure that these sites
are adequately decontaminated. Formerly licensed sites are sites for
which the licenses were terminated, in many cases by the Atomic Energy
Commission prior to NRC's creation, and which were never issued
Agreement States licenses. Some Agreement States that have formerly
licensed sites within their borders have argued that these sites remain
the responsibility of the Federal government. Some States have
expressed a willingness to take responsibility for site
decontamination, but they have requested Federal funding. We believe
that it would be efficient, fair, and in the interest of protecting
health and safety for the Federal government to bear the costs of
decontaminating these sites, but legislative authorization is required
for that program. I believe our initiative has strong support in the
States. We estimate the total cost of this proposal for fiscal year
2001 would be $1.4 million.
Finally, Mr. Chairman, I would note that the Commission included a
provision in last year's request to clarify the status of NRC's
licensees who decommission their sites pursuant to our license
termination rule or who terminate Agreement State licenses pursuant to
an Agreement State's version of our license termination rule. This is a
matter on which we and the Environmental Protection Agency (EPA) have
had a long disagreement. In 1997, after many years of effort, the
Commission promulgated a license termination rule which set what we
believe to be a protective standard for public health and safety and
the environment--namely, a standard establishing an annual dose limit
of 25 mrem for all pathways to the public. The EPA has issued guidance
to its Regions to the effect that our rule is not sufficiently
protective. We strongly disagree with EPA's assertion. Our rule was
promulgated using a public process, the rule is consistent with
international standards, and is based on sound scientific research. The
rule ensures adequate protection of groundwater. The provision which we
suggest for your consideration would clarify that licensees who clean
up to our standard are not subject to CERLCA except in the rare event
in which we or the Agreement State invite the EPA into the
decommissioning to take advantage of CERCLA remedies. The
Appropriations Committees have asked us to try and solve this issue
through a Memorandum of Understanding (MOU) with EPA and we are now
seeking to negotiate such an MOU. But if we fail, legislation would be
the cleanest way to resolve this issue.
CONCLUSION
Mr. Chairman, I have tried to present some of our pressing issues
and accomplishments, and have requested your support for our budget and
for our legislative programs. Let me conclude by once again thanking
you for your interest in our activities. We will best be able to
continue to make progress with continued interest and oversight on your
part, and with your help on budget matters and on legislative
initiatives. We stand ready to continue to make further changes to
improve our regulatory programs, and we look forward to your support in
our efforts to reach that goal.
Thank you Mr. Chairman. We would be pleased to answer any questions
you may have.
RESPONSES BY RICHARD MESERVE TO ADDITIONAL QUESTIONS FROM SENATOR
INHOFE
Question 1. DOE's failure to begin picking up spent fuel in 1998
means utilities will rely increasingly on dry cask storage to keep
operating their plants. How has the Commission prepared to meet the
increasing needs for numbers of certified casks and casks that are
certified for the types of fuel being discharged? What efforts does the
Commission have to streamline the process for amending the cask
certificates of compliance?
Response. Because the time of availability of a geologic repository
remains uncertain, the NRC staff has undertaken several initiatives to
respond to utilities' interim spent fuel storage needs, including
giving high priority to the review of dual-purpose cask systems that
accommodate the need for both spent fuel storage and transportation. We
have certified 12 generic, spent fuel storage cask designs and
anticipate certifying 2 additional designs by the end of fiscal year
2001. Of these 14 spent fuel storage designs, 7 will be dual-purpose
casks. So far, 13 reactor sites are utilizing dry cask storage
technology and 18 additional reactor sites plan to implement dry cask
storage in the near future.
To streamline and make the technical review process more
predictable and stable, the NRC staff has developed a business-like
review process that consists of: (1) assigning dedicated NRC review
teams to each application, (2) establishing strict schedules for each
application, (3) having no more than two rounds of written questions
and answers, with a goal of no rounds of questions, (4) requiring
applicants to respond completely to written questions within 60-90
days, and having NRC staff determine the acceptability of written
responses within two weeks of applicant response, and (5) if more than
two rounds of questions are needed, suspending further NRC review on
the application until completion of certification of application's
sufficiency by the respective utility owners group.
These review process guidelines have helped ensure that storage and
transport portions of well-prepared applications are reviewed and
approved within 13 months of the start of the review, an improvement of
about one year over previous review time estimates. The staff
anticipates that the rulemaking certification process will add an
additional 11 months, for an overall approval schedule of approximately
two years.
The NRC staff is working to further improve the review and
regulatory process. For example, the NRC staff is working with industry
to develop implementing guidance for the recently revised 10 CFR 72.48,
which will be effective mid fiscal year 2001. This revised regulation
will allow certificate holders (cask vendors) to make minor, non-safety
significant changes to their cask design without obtaining prior NRC
approval (i.e., amending the certificate). The NRC continues to work
with industry and other external stakeholders on regulatory and
technical issues of mutual concern, such as shipping and storing high
burn-up fuel, the use of burn-up credit, and certificate of compliance
and license renewal.
In summary, while the staff has already approved multiple spent
fuel storage cask design options, we continue to work with industry to
improve the regulatory process and provide safe on-site and off-site
storage options.
Question 2. Dual regulation of decommissioning by NRC and EPA
continues to undermine public confidence at these sites and subjects
the licensees to uncertainty regarding the outcome of their efforts and
added unnecessary expenses to respond to two federal agencies on day to
day compliance issues. What action has the Commission taken to work
with EPA to avoid dual regulation at these sites? Has the Commission
considered specific legislative remedies to address any impasses?
Response. In report language to H.R. 2684, August 1999, it was
stated that EPA should continue its policy of deferring to NRC for
cleanup of NRC licensed sites. Both agencies were requested to report
by May 1, 2000, on development of a Memorandum of Understanding (MOU)
that would clarify EPA's involvement at NRC sites, when requested by
NRC. The Commission responded to Congressional oversight committees,
including this subcommittee, on May 1, 2000, on the status of the
development of such an MOU and stated that it reserved any conclusion
as to whether an MOU will be achievable. The NRC will keep the
subcommittee informed about the status of the MOU.
Limited progress has been made on developing an MOU. Mr. Timothy
Fields, EPA Office of Solid Waste and Emergency Response sent a
February 17, 2000, letter to Dr. William Travers, NRC Executive
Director for Operations indicating that Mr. Larry Reed would serve as
the EPA point of contact for development of the MOU. This letter
enclosed a memorandum providing EPA guidance that is intended to
clarify EPA's role under the Comprehensive Environmental Response,
Compensation, and Liability Act at facilities previously or currently
licensed by NRC. These materials provided by Mr. Fields suggested to
NRC that the differences in each agency's policy may not be resolvable
without legislation.
On February 23, 2000, NRC sent a letter to EPA Administrator
Browner that enclosed a draft MOU between EPA and NRC on the
decommissioning and decontamination of NRC-licensed sites, consistent
with the House Report language. The proposed draft MOU included
provisions that the NRC would provide notice to the EPA of those cases
in which the NRC's all-pathways residual radiation dose may exceed
EPA's preferred all-pathways limit of 15 mrem/year and of those cases
in which NRC requests EPA consultation. These proposals would provide
finality, avoiding potential dual regulation for NRC-licensed sites by
relying on the NRC's decision on license termination. Because the MOU
is the subject of on-going negotiations between the two agencies, the
draft MOU was not made public.
On March 14, 2000, NRC responded to Mr. Fields' February 17, 2000,
letter. The NRC letter requested initiation of a process that would
lead to finalizing an MOU to eliminate dual regulation at
decommissioning sites consistent with NRC and EPA requirements.
On March 22, 2000, Mr. Fields, EPA, responded to the NRC letter
indicating EPA was optimistic about the development of a workable MOU
that would address the sites in a protective manner without dual
regulation.
Subsequently, each agency's representative for development of the
MOU met on March 27, 2000, and April 24, 2000, to discuss each agency's
policies and processes related to site decommissioning and to discuss
options for development of an MOU. At the April 24, 2000 meeting, both
agencies exchanged ideas concerning language for an MOU. Each agency
agreed to meet again on May 23, 2000, which will provide an additional
opportunity to discuss options for development of an MOU. NRC staff
have also been meeting with EPA Office of Radiation and Indoor Air
(ORIA) and EPA Region I to develop a protocol that addresses site-
specific cases.
In the past, the NRC has offered legislative language which would
amend the Comprehensive Environmental Response, Compensation, and
Liability Act to address the Commission's concerns with dual
regulation. In 1997, H.R. 3000 contained language in this regard that
was acceptable to the Commission. If current efforts to create an
acceptable MOU between the two agencies fail, the Commission would
support a legislative solution.
Question 3. Under current law the EPA is to propose the Nuclear
Storage standards and then the NRC is to operate the storage facility.
Are EPA's proposed standards workable? Will you be able to follow the
standards and operate a storage facility?
Response. The NRC understands this question to ask whether the
EPA's proposed standards for disposal of high-level waste (HLW) at
Yucca Mountain, Nevada pose licensing difficulties such that the NRC
would not be able to make its licensing finding on a Department of
Energy (DOE) proposal for constructing and operating a HLW repository
at Yucca Mountain. The NRC has provided formal comments to the EPA on
the proposed standards (see enclosed letter Travers to Page dated
November 2, 1999) which provide detailed comments on what NRC considers
to be fundamental flaws in the proposed rule. Many of the requirements
in the proposed rule, if included in the final rule, may add
significant cost and burden to the license application process. They
would also significantly increase the complexity of the NRC's licensing
process without a commensurate, if any, increase in the protection of
public health and safety and the environment.
The NRC considers the inclusion of separate ground-water protection
requirements in the proposed standard inappropriate because these
requirements would result in non-uniform risk levels and would far
exceed what is needed for protection of public health and safety.
The NRC considers the imposition of a 15 mrem per year individual
dose limit from all pathways in the proposed standard inappropriate
because this dose limit, in contrast to the NRC's proposed limit of 25
mrem/year, will unnecessarily increase the conservatism of the dose
assessment without a commensurate benefit to the protection of public
health and safety.
______
November 2, 1999.
Mr. Stephen D. Page, Director,
Office of Radiation and Indoor Air,
U.S. Environmental Protection Agency,
Washington, DC.
Dear Mr. Page: This letter provides the comments of the U.S.
Nuclear Regulatory Commission (NRC) staff on the Notice of Proposed
Rulemaking, ``Environmental Radiation Protection Standards for Yucca
Mountain, Nevada'' (64 FR 46976) at proposed 40 CFR Part 197. As the
Agency responsible for licensing a possible repository at Yucca
Mountain, Nevada, the NRC is concerned that the standards exhibit a
sound scientific and technical basis and that the need for the
standards adopted be fully justified on health and safety grounds. The
NRC staff disagrees with the need for, and health and safety basis of,
some of the requirements in the proposed standards. In addition, the
NRC staff is concerned that EPA has not provided any analysis of the
costs and benefits of its approach to regulating radioactive waste
disposed at Yucca Mountain. The staff's objections to the proposed
standards are given below and in the enclosure to this letter.
1. The NRC staff objects to the inclusion of separate ground-water
protection requirements for the proposed repository at Yucca Mountain
because these requirements would result in non-uniform risk levels,
they misapply the Maximum Contaminant Levels for radionuclides, and
they far exceed what is needed for protection of public health and
safety.
Although Maximum Contaminant Levels (MCLs) may have been considered
reasonable standards during their development in 1975, current
understanding of the risk posed to individual organs by radiation
exposure demonstrates that the MCLs for individual radionuclides
provide a level of protection that varies significantly. For example,
consider the annual risk of developing a fatal cancer from drinking
water that contains Neptunium-237 (Np-237) and Iodine-129 (I-129) at
their respective MCL. The risk of developing a fatal cancer from
ingestion of Np-237 at its MCL is 30 chances in 1,000,000 (3 x
10-5), while the risk from ingestion of I-129 at its MCL is
0.07 chance in 1,000,000 (7 x 10-8). More than a four-
hundred fold difference exists between the risk levels prescribed for
these two radionuclides. Therefore, this simple comparison shows an
application of MCLs that results in non-uniform risk levels which are
likely to lead to greater confusion about the level of risk which is
acceptable and attainable, rather than confidence that the health and
safety of the public are being protected. It is our understanding that
there are no EPA efforts currently underway to modify the MCLs to
ensure a uniform risk level.
The EPA does not demonstrate a need for such an overly
conservative, separate groundwater limit to protect public health and
safety. The all-pathway dose limit, by definition, ensures that risks
from all radionuclides and all exposure pathways, including the
groundwater pathway, are acceptable and protective. All radionuclides
and all exposure pathways will have to be acceptably evaluated at Yucca
Mountain, and will have to meet an individual protection standard that
is fully protective of public health and safety and the environment.
Therefore, the proposed standard should not contain separate ground-
water protection requirements because they are unnecessary for
protection of public health and safety and because they lead to
inconsistent and unreconcilable results as described above, which we
believe will cause confusion and diminish rather than enhance public
confidence that adequately protective limits have been established.
Certain MCLs maintain a risk level so small that the individual,
all-pathway dose limit is meaningless. EPA has proposed an annual,
individual dose limit of 0.15 mSv (15 mrem) which is equivalent to an
annual risk of developing a fatal cancer of 9 chances in 1,000,000 (9
x 10-6).\1\ The MCL for I-129 (annual risk of 0.07 chance
in 1,000,000) is more than 100 times below the risk of the individual
dose limit. Consequently, the groundwater protection criteria become
the de facto standards instead of the individual protection limit
called for by the Energy Policy Act of 1992 (EnPA--Public Law 102-486).
---------------------------------------------------------------------------
\1\ This value was calculated by EPA's use of NCRP Report No. 126
risk value of 6 x 10-2 health effects per Sievert (SV) [6
x 10-4 health effects per rem] and the NAS recommendations
for an annual risk limit.
---------------------------------------------------------------------------
The EPA's current proposal is a continuation of EPA's practice of
using the MCLs without appropriate justification. Specifically, EPA
would have NRC require that groundwater in the vicinity of Yucca
Mountain meet EPA's MCL, originally established to implement the Safe
Drinking Water Act (SDWA). The MCLs were based on an analysis of
treating contaminated water in public drinking water systems subject to
the SDWA and not on an analysis of technology and costs of remediating
groundwater at actual sites. In this rule, EPA proposes to apply the
same MCLs to groundwater supplies before treatment rather than ``at the
tap'' after treatment. Therefore, in the absence of an appropriate and
comprehensive cost-benefit analysis, EPA should not require the
expenditure of potentially significant amounts of taxpayer money to
prevent potential contamination of groundwater that may require
treatment prior to use anyway. Instead, EPA's standards should permit a
decision to spend much smaller sums for water treatment in the event
that such contamination should occur. Finally, EPA's application of
MCLs at DOE's Waste Isolation Pilot Plant (WIPP) site in New Mexico
should not be considered a precedent for the Yucca Mountain site since
the WIPP site is located in a salt formation and lacks potable
groundwater making the application of MCLs irrelevant.
Furthermore, the NRC staff is troubled by the discussion of ground-
water protection that suggests additional options that are not
representative of ground-water conditions at Yucca Mountain and further
increase the conservatism in applying these unnecessary separate
requirements. The preamble to the standard requests comment on
alternative dilution volumes that are extremely small (e.g., 10 and 120
acre-feet). These dilution volumes are not reflective of the resource
to be protected (the EPA states the representative volumetric flow is
4000 acre-ft/year for the sub-basin in which the proposed repository is
located). The standard also requests comment on alternative locations
for determining compliance (e.g., 5 kilometers) that are similarly not
reflective of the resource. As explained in connection with the
compliance location for the individual protection (e.g., 20
kilometers), cautious and reasonable assumptions for lifestyles and the
practicality of obtaining water provide no basis for identifying the 5
kilometer location for protection of ground water.
Is there a better approach? Yes. An individual, all-pathway dose
limit of 0.25 mSv (25 mrem) total effective dose equivalent (TEDE)
properly accounts for the radiation sensitivity of individual organs,
and ensures the risks from all radionuclides and all exposure pathways
are acceptable and protective.
2. The NRC staff objects to those portions of the proposed standard
that address technical matters of compliance determination and
implementation--matters which Congress has assigned to the NRC, not to
the EPA.
In the proposed rule, there are many requirements where the EPA has
inappropriately assumed the Commission's responsibility. For example,
the EPA introduces a new term, ``reasonable expectation,'' in place of
the Commission's term, ``reasonable assurance.'' Confidence that the
U.S. Department of Energy (DOE) has or has not demonstrated compliance
with the EPA's standards is the essence of NRC's licensing process, and
is the Commission's responsibility. The NRC has effectively used
``reasonable assurance'' in licensing a variety of atomic energy
activities. The reasonable assurance standard is derived from the
finding the Commission is required to make under the Atomic Energy Act
that the licensed activity provides ``adequate protection'' to the
health and safety of the public; the standard has been approved by the
Supreme Court. Power Reactor Development Co. v. Electrical Union, 367
U.S. 396, 407 (1961). This standard, in addition to being commonly used
and accepted in the Commission's licensing activities, allows the
flexibility necessary for the Commission to make judgmental
distinctions with respect to quantitative data which may have large
uncertainties. The NRC staff has incorporated this concept of
reasonable assurance in its development of implementing regulations for
Yucca Mountain (Proposed 10 CFR Part 63).
A second example is the EPA's requirement that the dose should be
calculated to the ``reasonably maximally exposed individual'' (RMEI).
The RMEI is the EPA's proposal of a technical criterion for determining
whether the standard will achieve its purpose of protecting the
individuals most likely to receive doses from any releases from the
repository. The RMEI is untested in NRC's licensing process, and
involves a matter of implementation within the NRC's statutory
responsibilities. The NRC staff, consistent with the National Academy
of Science (NAS) recommendations and international practice, intends to
use the ``average member of the critical group'' approach to determine
the population that should be the focus in implementation of the
individual protection standard. The EPA should conform to the
recommendations of the NAS and international practice by adopting the
use of the ``average member of the critical group.'' [Comments on other
examples of the EPA's intrusion into implementation matters are
provided in the Enclosure to this letter.]
3. The NRC staff objects to the imposition of a 0.15 mSv (15 mrem)
per year individual dose limit from all pathways, because this lower
dose limit will unnecessarily increase the conservatism of the dose
assessment.
An annual all-pathways individual dose limit of 0.25 mSv (25 mrem)
is fully protective of public health and safety and is a suitable
standard for a potential repository at Yucca Mountain. The 0.25 mSv/
year (25 mrem/year) limit represents a small fraction of the national
and international public dose limit of 1 mSv/year (100 mrem/year) and
provides a level of radiation protection that is consistent with our
and EPA's regulations for related activities (e.g., low-level, high-
level, and transuranic waste management, storage, and disposal; spent
fuel storage and disposal). Although the EPA rule proposes a lower
limit of 0.15 mSv (15 mrem), and the difference between 0.15 and 0.25
mSv (15 and 25 mrem) is small, the lower value is not necessary for
protection of public health and safety and would provide little, if
any, reduction in health risk when compared with 0.25 mSv (25 mrem). It
is also important to consider that the average American receives
approximately 3 mSv/yr (300 mrem/yr) from natural background radiation.
In addition to the lack of public health and safety benefit, there are
regulatory concerns associated with lowering the dose limit to 0.15 mSv
(15 mrem). Specifically, as the dose limit becomes smaller, limitations
in the DOE's models used for estimating performance, and the associated
uncertainties in supporting analyses, become more pronounced. Further,
a 0.15 mSv (15 mrem) dose limit is likely to cause unnecessary
confusion for the public and cause the NRC to expend resources without
a commensurate increase in public health and safety.
In addition to the above objections to provisions proposed in 40
CFR Part 197, the NRC staff also provides responses to the EPA's
solicitation for input on specific questions annotated in Section IV of
the ``Supplementary Information'' text. These responses are provided in
the enclosure to this letter.
In summary, the NRC staff believes there are fundamental flaws in
the proposed rule which EPA should reconsider before finalizing the
rule. Moreover, many of the requirements in the proposed rule will, if
included in the final rule, add significant cost and burden to the DOE
license application process and significantly increase the complexity
of the NRC's licensing process without a commensurate, if any, increase
in the protection of public health and safety and the environment. The
NRC staff will attend the EPA-sponsored public meetings on the proposed
Yucca Mountain Standard and may provide further comments, if warranted.
Sincerely,
William D. Travers,
Executive Director for Operations.
__________
COMMENTS ON PROPOSED U.S. ENVIRONMENTAL PROTECTION AGENCY STANDARDS FOR
YUCCA MOUNTAIN (40 CFR PART 197)
UNWARRANTED SPECIFICATION OF IMPLEMENTATION CRITERIA
The U.S. Nuclear Regulatory Commission (NRC) staff objects to those
portions of the proposed standard that address technical matters of
compliance determination and implementation--matters assigned to NRC's
jurisdiction and responsibility. The NRC staff offers the following
comments on specific portions of the standard that prescribe
implementation and/or solicit comment on implementation:
(A) Use of Reasonable Expectation
The U.S. Environmental Protection Agency (EPA) proposes to
``establish minimum requirements for implementation'' by requiring the
NRC to use reasonable expectation as a basis for determining
compliance. The NRC staff objects to the EPA's intrusion into an area
of implementation related to making a license determination. The NRC
has the sole licensing responsibility to determine compliance of the
U.S. Department of Energy's (DOE's) license application with pertinent
regulations and standards. The EPA has no authority to define how the
NRC should make its licensing decision and should remove language that
presumes to prescribe matters of NRC implementation.
Furthermore, the EPA incorrectly portrays how the NRC makes its
licensing decisions. The EPA wrongly asserts that use of ``reasonable
assurance'' as a basis for judging compliance would force the NRC to
focus on extreme values (i.e., ``tails of distributions'') for
representing the performance of a Yucca Mountain repository. This is
not correct for the proposed repository at Yucca Mountain. Over the
last several years, the Commission has clearly articulated how
performance analyses are to be conducted to assist the NRC's goal of
protecting health and safety. The Commission's Final Policy Statement
on the ``Use of Probabilistic Risk Assessment Methods in Nuclear
Regulatory Activities'' (FRN Volume 60, Number 158, August 16, 1995)
stated that use of probabilistic risk assessment (PRA), which includes
performance assessment for waste management systems, should: (1) reduce
unnecessary conservatism; and (2) be as realistic as practicable when
supporting regulatory decisions. In particular, the NRC's proposed
implementing regulation for disposal of high-level waste at Yucca
Mountain (10 CFR Part 63) propounds a comparison of the average or mean
dose with the individual dose limit to determine compliance. The NRC's
draft Branch Technical Position on Performance Assessment for Low-Level
Waste Disposal Facilities (FRN May 29, 1997, Volume 62, Number 103)
also uses an average dose as the basis for comparison with the dose
limit. The NRC has made it clear that it does not focus on extreme
values but rather is evaluating expected doses. The EPA should remove
language that incorrectly portrays the NRC's use of reasonable
assurance.
(B) Specification of the Reasonably Maximally Exposed Individual (RMEI)
The EPA proposes that the RMEI be used for making dose estimates
and also prescribes the approach to be used for determining the diet,
and specifies the water intake volume of the RMEI. The EPA should not
require use of the RMEI, but instead endorse use of the more widely-
accepted critical group (CG) concept, consistent with the National
Academy of Sciences (NAS) recommendations (see also the NRC staff
response to the EPA's question #3). Specification of attributes or
characteristics of the RMEI or how these attributes or characteristics
are to be determined should not be prescribed in the standards, but
left to the NRC's implementing regulation (see also NRC staff responses
to EPA's questions #4, 5, and 6).
(C) Specification of the Stylized Calculation for Human Intrusion
Prescription of the stylized calculation for evaluating human
intrusion should not be part of the EPA standards. Specification of the
stylized calculation more appropriately belongs in the NRC's
implementing regulations (see also the NRC staff response to the EPA's
question #10). Additionally, the standards include an alternative for
evaluating human intrusion beyond 10,000 years in the event an
intrusion is not likely in the initial 10,000 years. The EPA should
prescribe only the standard that is to be met and should not stipulate
implementation details for what constitutes compliance with the
standard.
(D) Request for Comment on Inclusion of Assurance Requirements
It is unnecessary for the EPA to establish additional qualitative
``assurance requirements'' to ``add confidence that the Yucca Mountain
disposal system will achieve the level of protection proposed in the
quantitative standards.'' The degree of confidence that the NRC must
have, in assessing whether the DOE's compliance demonstration satisfies
applicable requirements, including the EPA disposal standards, is
inherently an implementation matter for the NRC licensing requirements
and licensing process to determine. Further NRC staff response to this
specific request is provided later in this document.
(E) Request for Comment on Inclusion of Requirements for Use of Expert
Opinion
It is unnecessary for the EPA to set guidelines for the use of
expert opinion in its standards for Yucca Mountain. The NRC's licensing
requirements and licensing process will govern the DOE's use of expert
opinion in the development of its licensing case for a repository at
Yucca Mountain. Further NRC staff response to this specific request is
provided later in this document.
The NRC requests that those portions of the proposed standards that
address the foregoing technical matters of compliance determination and
implementation be removed or, at a minimum, that they acknowledge that
the NRC, as the implementing authority, is not bound by implementation
details that are contained in the standards. Additionally, the section
entitled, ``Who Will Be Regulated by These Standards?'' should: (1)
properly define the EPA role in standard development; (2) accurately
describe the NRC's authority to establish technical requirements that
are consistent with the EPA standards; and (3) acknowledge the time
constraints established by the U.S. Congress that require the NRC to
promulgate its rule within one year after the EPA issues its final
standards.
RESPONSES TO SPECIFIC QUESTIONS FOR COMMENT IN THE PROPOSED STANDARDS
Question 1. The NAS recommended that we base the individual-
protection standard upon risk. Consistent with this recommendation and
the statutory language of the Energy Policy Act of 1992, we are
proposing a standard in terms of annual committed effective dose
equivalent (CEDE) incurred by individuals. Is our rationale for this
aspect of our proposal reasonable?
Response. Yes. The individual-protection standard should be
specified in terms of an annual CEDE limit. The use of an ``effective''
dose limit correctly accounts for the variation in risk levels
associated with different organs. Not using an effective dose provides
widely varying degrees of protection depending on the organ and
radionuclides used in the exposure scenario.
Question 2. We are proposing an annual limit of 150 Sv [equivalent
to 0.15 mSv (15 mrem)] CEDE to protect the reasonably, maximally
exposed individual (RMEI) and the general public from releases from
waste disposed of in the Yucca Mountain disposal system. Is our
proposed standard reasonable to protect both individuals and the
general public?
Response. No. An annual all-pathways individual dose limit of 0.25
mSv (25 mrem) is fully protective of public health and safety and is a
more appropriate standard for a potential repository at Yucca Mountain.
The 0.25 mSv/yr (25 mrem/yr) limit represents a small fraction of the
national and international public dose limit of 1.0 mSv (100 mrem/yr)
and provides a level of radiation protection that is consistent with
our and EPA's regulations for related activities (e.g., low-level,
high-level, and transuranic waste management, storage, and disposal;
spent fuel storage and disposal). Although the EPA rule proposes a
lower limit of 0.15 mSv (15 mrem), and the difference between 0.15 and
0.25 mSv (15 and 25 mrem) is small, the lower value is not necessary
for protection of public health and safety and would provide little, if
any, reduction in health risk when compared to 0.25 mSv (25 mrem). It
is also important to consider that the average American receives
approximately 3 mSv/year (300 mrem/yr) from natural background
radiation. In addition to the lack of public health and safety benefit,
there are regulatory concerns associated with lowering the dose limit
to 0.15 mSv (15 mrem). Specifically, as the dose limit becomes smaller,
limitations in the DOE's models used for estimating performance, and
the associated uncertainties in supporting analyses, become more
pronounced. Further, a 0.15 mSv (15 mrem) dose limit is likely to cause
unnecessary confusion for the public and cause the NRC to expend
resources without a commensurate increase in public health and safety.
A single, all-pathway standard is protective of both individuals
and the general public health when the standard is applied to a CG
(i.e., those individuals in the population expected to receive the
highest dose equivalent using cautious but reasonable assumptions). An
annual limit of 0.25 mSv (25 mrem) applied to the average member of the
CG is protective of individuals in the CG. The general public is
comprised of the individuals within the CG group as well as all other
individuals residing in the Yucca Mountain area who are not part of the
CG (e.g., the DOE has considered individuals living within 80 km (50
miles) of the Yucca Mountain site for evaluating population doses in
the Draft Environmental Impact Statement). Individuals within the CG
will have estimated doses higher (i.e., at least 3-5 times higher) than
individuals outside the CG. The dose limit is protective of individuals
in the CG and is also protective of individuals outside the CG for whom
doses will be lower.
Question 3. To define who should be protected by the proposed
individual-standard, we are proposing to use a RMEI as the
representative of the rural-residential CG. Is our approach reasonable?
Would it be more useful to have the DOE calculate the average dose
occurring within the rural-residential CG rather than the RMEI dose?
Response. The NRC staff endorses the NAS recommendation for use of
the average member of the CG as a basis for comparison with the risk
limit.
The NRC staff disagrees with the EPA's use of ``a RMEI as the
representative of the rural-residential CG'' because: (1) it
unnecessarily confuses the CG concept, recommended by the NAS, by
advancing a second, less widely-used, concept (i.e., RMEI); (2) the CG
concept has been accepted both internationally and nationally and thus
has meaning to a wider audience than the RMEI; and (3) specification of
a particular group (i.e., rural-residential RMEI) is a matter of
implementation to be determined in the NRC's implementing regulation.
NRC routinely employs the CG approach in its licensing actions and for
other regulatory applications (e.g., as part of our LLW and
Decommissioning programs). We are also aware of documented applications
of the CG approach by state regulatory authorities and by regulatory
authorities in the United Kingdom, Sweden, Switzerland, and Canada. The
EPA should replace the ``RMEI'' with the ``average member of the CG''
and remove any reference to the particular characteristics of the CG.
Question 4. Is it reasonable to use the RMEI parameter values based
upon characteristics of the population currently located in proximity
to Yucca Mountain? Should we promulgate specific parameter values in
addition to specifying the exposure scenarios?
Response. The NRC staff agrees with the NAS recommendation that
specification of the CG is to be based on cautious but reasonable
assumptions. In doing so, it is appropriate to use present day
knowledge of the habits and characteristics of the local population in
the vicinity of Yucca Mountain to inform the specification of the CG.
That being said, however, the NRC staff objects to specification of
parameters of the exposure scenario because they are matters of
implementation that are to be determined in the NRC's implementing
regulation. Additionally, detailed specification of exposure parameters
at this time unnecessarily pre-judges ongoing efforts by the DOE to
collect information in the Yucca Mountain vicinity relevant to exposure
scenarios.
Question 5. Is it reasonable to consider, select, and hold constant
today's known and assumed attributes of the biosphere for use in
projecting radiation-related effects upon the public of releases from
the Yucca Mountain disposal system?
Response. Yes. As explained in the NRC's proposed 10 CFR Part 63,
it is appropriate to hold constant today's known and assumed attributes
of the biosphere. Specification of assumed attributes of the biosphere
is a matter of implementation that should be accomplished in the NRC's
implementing regulations.
The NAS recognized the difficulties in forecasting the
characteristics of future society, especially those influencing
exposure, and recommended specification of exposure scenario
assumptions. The NAS indicated the purpose for making the exposure
scenario assumptions was to provide a framework for evaluation of
repository performance and not to identify or predict possible futures.
Question 6. In determining the location of the RMEI, we considered
three geographic subareas and their associated characteristics. Are
there other reasonable methods or factors which we could use to change
the conclusion we reached regarding the location of the RMEI? For
example, should we require an assumption that for thousands of years
into the future people will live only in the same locations that people
do today? Please include the rationale for your suggestions.
Response. The NAS recommended that cautious and reasonable
assumptions be used in defining an assumed exposure scenario, including
the compliance location. The EPA should not go beyond considerations
that are cautious and reasonable. Specification of additional
assumptions for determining the compliance location are unnecessary.
The NRC staff recognizes that the EPA has a need to discuss who is
being protected by their standard. However, specification of the
exposure scenario is a matter of implementation, and specification of
the compliance location should be determined in the NRC's implementing
regulation.
Question 7. The NAS suggested using a negligible incremental risk
level to dismiss from consideration extremely low, incremental levels
of dose to individuals when considering protection of the general
public. For somewhat different reasons, we are proposing to rely upon
the individual-protection standard to address protection of the general
population. Is this approach reasonable in the case of Yucca Mountain?
If not, what is an alternative, implementable method to address
collective dose and the protection of the general population?
Response. Yes, it is reasonable to rely on an all-pathway,
individual protection standard. We agree with the NAS that ``a health-
based individual standard will provide a reasonable standard for
protection of the general public'' (p. 65 of NAS report). By
definition, it will ensure that every member of the general public will
not receive more than the individual dose limit and is therefore
protected. Additional regulatory criteria limiting collective dose are
unnecessary for the protection of public health and safety and should
not be included in the final EPA standards for Yucca Mountain.
Question 8. Is our rationale for the period of compliance
reasonable in light of the NAS recommendations?
Response. Yes. A 10,000-year compliance period is reasonable for
the reasons identified in the NRC's proposed criteria at 10 CFR Part
63. The fact that it is feasible to calculate performance of the
engineered and geologic barriers making up the repository system, for
periods much longer than 10,000 years, does not mean that it is
possible to make realistic or meaningful projections of human exposure
and risk, attributable to releases from the repository over comparable
time frames. NAS acknowledged that projecting the behavior of human
society over long periods is beyond the limits of scientific analysis
and recommended that ``cautious, but reasonable'' assumptions, based
upon current knowledge, be made with regard to the selection of
biosphere and CG parameters for Yucca Mountain. Determining just how
far into the future current knowledge can no longer support
``reasonable'' assumptions about pathways affecting human exposure is
clearly a subjective, policy judgment. The NRC staff believes that, for
periods approaching 1,000,000 years, as suggested by NAS, during which
significant climatic and even human evolution would almost certainly
occur, it is all but impossible to make useful and informed assumptions
about human behaviors and exposure pathways. The NAS explicitly
acknowledged that selection of a time period over which compliance
should be evaluated necessarily involves both technical and policy
considerations (p. 56 of NAS report). We believe sound reasons--
technical, policy, and practical--support the designation of a 10,000-
year compliance period for evaluating compliance with an all-pathway,
individual protection standard.
Question 9. Does our requirement that the DOE and the NRC determine
compliance with Sec. 197.20, based upon the mean of the distribution of
the highest doses resulting from the performance assessment, adequately
address uncertainties associated with performance assessments?
Response. Although the NRC staff agrees with the use of the mean of
the distribution, we object to the EPA prescription of a specific
statistical parameter that the NRC must use to evaluate compliance with
the standard. Specification of approaches for determining compliance,
given the uncertainties associated with performance assessment, is
strictly a matter of implementation that is properly addressed in the
NRC's regulation.
Question 10. Is the single-borehole scenario a reasonable approach
to judge the resilience of the Yucca Mountain disposal system following
human intrusion? Are there other reasonable scenarios which we should
consider, for example, using the probability of drilling through a
waste package based upon the area of the package versus the area of the
repository footprint or drilling through an emplacement drift but not
through a waste package? Why would your suggested scenario(s) be a
better measure of the resilience of the Yucca Mountain disposal system
than the proposed scenario?
Response. Specification of a calculation for the NRC to use to
evaluate the consequences of human intrusion on repository performance
is a matter of implementation to be determined by the NRC. The NRC has
proposed implementing regulations at 10 CFR Part 63, that include a
proposal for evaluating the consequences of an assumed intrusion
scenario, on which we have received significant comment. We will fully
consider these comments prior to finalizing the rule. The EPA should
eliminate the separate provisions for evaluating human intrusion by
deleting Sec. Sec. 197.25 and 197.26.
Question 11. Is it reasonable to expect that the risks to future
generations be no greater than the risks judged acceptable today?
Response. Yes. The NRC staff agrees with the basic principle that
individuals in the future should be afforded a level of protection from
actions taken today that is comparable to that found acceptable for the
current generation. The primary objective of geologic disposal of high-
level radioactive wastes is the protection of current and future
generations from the radiological hazards posed by the wastes produced
by the current generation. The NRC has long supported the national
strategy to pursue deep geologic disposal in the belief that the
current generation's responsibilities to provide comparable protection
to future generations are better fulfilled by pursuit of long-term
disposal than by indefinite reliance on temporary storage strategies.
That being said, however, the NRC acknowledges that permanent, complete
isolation is unlikely to be achieved by any repository at any site,
including Yucca Mountain, and that some fraction of the waste inventory
can be expected to migrate to the biosphere, giving rise to potential
exposures thousands, or even hundreds of thousands of years in the
future. Doses and risks to individuals over these very long time frames
can only be estimated, and the reliability of such estimates
diminishes, the further into the future they are calculated. Because
doses and risks cannot be forecast with any certainty into the
indefinite future and must instead rely on cautious, but reasonable
assumptions, as noted by the NAS, it is only appropriate to use such
estimates to evaluate whether a proposed repository system is adequate,
over a compliance period within which those assumptions continue to be
reasonable. For the reasons cited or referenced in the response to
Question 8, the NRC staff believes 10,000 years is an appropriate
compliance period.
Question 12. What approach is appropriate for modeling the
groundwater flow system down-gradient from Yucca Mountain at the scale
(many kilometers to tens of kilometers) necessary for dose assessments,
given the inherent limitations of characterizing the area? Is it
reasonable to assume that there will be some degree of mixing with
uncontaminated groundwater along the radionuclides travel paths from
the repository?
Response. Determination of the appropriate model for groundwater
flow will be an important part of the NRC's review of a possible DOE
license application. It is inappropriate for the EPA to prescribe any
degree of belief in potential modeling approaches that could be part of
the DOE's license application.
Question 13. Which approach for protecting ground water in the
vicinity of Yucca Mountain is the most reasonable? Is there another
approach which would be preferable and reasonably implementable? If so,
please explain the approach, why it is preferable, and how it could be
implemented.
Response. Although Maximum Contaminant Levels (MCLs) may have been
considered reasonable standards during their development in 1975,
current understanding of the risk posed to individual organs by
radiation exposure demonstrates that the MCLs for individual
radionuclides provide a level of protection that varies significantly.
For example, consider the annual risk of developing a fatal cancer \2\
from drinking water that contains Neptunium-237 (Np-237) and Iodine-129
(I-129) at their respective MCL. The risk of developing a fatal cancer
from ingestion of Np-237 at its MCL is 30 chances in 1,000,000 (3 x
10-5),\3\ while the risk from ingestion of I-129 at its MCL
is 0.07 chance in 1,000,000 (7 x 10-8).\4\ More than a
four-hundred fold difference exists between the risk levels prescribed
for these two radionuclides. Therefore, this simple comparison shows an
application of MCLs that results in non-uniform risk levels which are
likely to lead to greater confusion about the level of risk which is
acceptable and attainable, rather than confidence that the health and
safety of the public are being protected.
---------------------------------------------------------------------------
\2\ The annual risk of developing a fatal cancer is 60 chances in
1,000,000 (6 x 10-5) per mSv of exposure.
\3\ Based on a concentration of 15 picocuries per liter.
\4\ Based on a 0.04 mSv( 4 mrem) exposure to the thyroid.
---------------------------------------------------------------------------
Certain MCLs maintain a risk level so small that the individual,
all-pathway dose limit is meaningless. EPA has proposed an annual,
individual dose limit of 0.15 mSv (15 mrem) which is equivalent to an
annual risk of developing a fatal cancer of 9 chances in 1,000,000 (9
x 10-6). The MCL for I-129 (annual risk of 0.07 chance in
1,000,000) is more than 100 times below the risk of the individual dose
limit. Consequently, the ground-water protection criteria become the de
facto standards instead of the individual protection limit called for
by the EnPA.
The EPA's current proposal is a continuation of EPA's practice of
using the MCLs without appropriate justification. Specifically, EPA
would have NRC require that groundwater in the vicinity of Yucca
Mountain meet EPA's MCL, originally established to implement the Safe
Drinking Water Act (SDWA). The MCLs were based on an analysis of
treating contaminated water in public drinking water systems subject to
the SDWA and not on an analysis of technology and costs of remediating
groundwater at actual sites. In this rule, EPA proposes to apply the
same MCLs to groundwater supplies before treatment rather than ``at the
tap'' after treatment. Therefore, in the absence of an appropriate and
comprehensive cost-benefit analysis, EPA should not require the
expenditure of potentially significant amounts of taxpayer money to
prevent potential contamination of groundwater that may require
treatment prior to use anyway. Instead, EPA's standards should permit a
decision to spend much smaller sums for water treatment in the event
that such contamination should occur. Finally, EPA's application of
MCLs at DOE's Waste Isolation Pilot Plant (WIPP) site in New Mexico
should not be considered a precedent for the Yucca Mountain site since
the WIPP site is located in a salt formation and lacks potable
groundwater making the application of MCLs irrelevant.
The EPA does not demonstrate a need for such overly conservative,
separate ground-water limit to protect public health and safety. The
all-pathway dose limit, by definition, ensures that risks from all
radionuclides and all exposure pathways, including the groundwater
pathway, are acceptable and protective. All radionuclides and all
exposure pathways will have to be acceptably evaluated at Yucca
Mountain, and will have to meet an individual protection standard that
is fully protective of public health and safety and the environment.
Therefore, the proposed standard should not contain separate ground-
water protection requirements because they are unnecessary for
protection of public health and safety and because they lead to
inconsistent and unreconcilable results as described above, which we
believe will cause confusion and diminish rather than enhance public
confidence that adequately protective limits have been established.
Furthermore, the NRC staff is troubled by the discussion of ground-
water protection that suggests additional options that are not
representative of ground-water conditions at Yucca Mountain and further
increase the conservatism in applying these unnecessary separate
requirements. The preamble to the standard requests comment on
alternative dilution volumes that are extremely small (e.g. 10 and 120
acre-feet). These dilution volumes are not reflective of the resource
to be protected (the EPA states the representative volumetric flow is
4000 acre-ft/year for the sub-basin in which the proposed repository is
located). The standard also requests comment on alternative locations
for determining compliance (e.g., 5 kilometers) that are similarly not
reflective of the resource. As explained in connection with the
compliance location for the individual protection (e.g., 20
kilometers), cautious and reasonable assumptions for lifestyles and the
practicality of obtaining water provide no basis for identifying the 5
kilometer location for protection of ground water.
Is there a better approach? Yes. An individual, all-pathway dose
limit of 0.25 mSv (25 mrem) total effective dose equivalent (TEDE)
properly accounts for the radiation sensitivity of individual organs,
and ensures the risks from all radionuclides and all exposure pathways
are acceptable and protective.
Question 14. Is the 10,000-year compliance period for protecting
the RMEI and groundwater reasonable or should we extend the period to
the time of peak dose? If we extend it, how could the NRC reasonably
implement the standards while recognizing the nature of the
uncertainties involved in projecting the performance of the disposal
system over potentially extremely long periods?
Response. Yes, 10,000 years is a reasonable time period for
evaluating compliance with an all-pathway individual protection
standard for the reasons stated in the answer to Question 8 (above).
For reasons stated in response to Question 3, we disagree with the
EPA's use of the RMEI construct. For reasons given at Question 13,
inclusion of separate groundwater protection criteria is unnecessary
regardless of the compliance period applied.
Question 15. As noted by the NAS, some countries have individual-
protection limits higher than we have proposed. In addition, other
Federal authorities have suggested individual-dose limits with no
separate protection of groundwater. Therefore, we request comment upon
the use of an annual CEDE of 0.25 mSv (25 mrem) with no separate
groundwater protection, including the consistency of such a limit with
our groundwater protection policy.
Response. The NRC staff believes that the application of a single,
all-pathway standard is fully protective of public health and safety,
and obviates the need for separate, single pathway limits. The purpose
of a post-closure performance objective for a repository at Yucca
Mountain is to ensure that members of the public will not receive
doses, from all possible sources, exclusive of background radiation, in
excess of 1 milliSievert (mSv) or 100 millirem (mrem) per year. 1 mSv
(100 mrem) per year is the public dose limit established by the
Commission at 10 CFR Part 20 and is the radiation protection basis upon
which the Commission licenses all operating nuclear facilities. A limit
of 0.25 mSv (25 mrem) to the TEDE, received in a year by the average
member of the CG would limit the dose received from all possible
pathways to the CG at Yucca Mountain, including direct exposure,
drinking of contaminated water, eating food that was irrigated with
contaminated groundwater or grown in contaminated soil, exposure to
airborne releases, etc. The Commission established the 0.25 mSv (25
mrem) annual dose limit as the overall safety objective for both
decommissioning of nuclear facilities (at 10 CFR Part 20.1402) and for
low-level radioactive waste disposal facilities (at 10 CFR Part 61.41).
It is within the range of international constraints that allocate doses
from high-level waste disposal to between 0.1 and 0.3 mSv (10 and 30
mrem) per year, and is sufficiently below the public dose limit that no
members of the public near Yucca Mountain would be expected to receive
doses from all sources, excluding background radiation, in excess of 1
mSv (100 mrem) per year.
We believe that recent Congressional direction and NAS guidance,
provided pursuant to that direction, are germane to the setting of
acceptable risk levels for radionuclides received through the ground-
water pathway--the primary pathway of concern at Yucca Mountain. The
1996 Amendments to the Safe Drinking Water Act directed the EPA to
withdraw drinking water standards proposed for radon in 1991, that
would have established an acceptable risk level for radon (a naturally-
occurring isotope, not generally regulated by the NRC) comparable to
current MCLs for other radionuclides. The same amendments called for
the EPA to arrange for the NAS to conduct an individual risk assessment
for radon in drinking water. Based on the results of that assessment,
the EPA was further directed to develop an alternative MCL that would
represent a risk comparable to that incurred from naturally-occurring
radon in outdoor air. By our calculations, such an alternative MCL for
a single radionuclide would correspond to an annual risk of 3.8 x
10-5 or more than twice that arising from exposure to an
all-pathway, all-nuclide limit of 0.25 mSv (25 mrem) for Yucca
Mountain. In view of this, and for the reason cited above and in the
NRC's notice of proposed rulemaking for Part 63, we continue to believe
that an all-pathway limit of 0.25 mSv (25 mrem) per year is an
appropriate level of protection for a repository, a level that is
consistent with national and international radiation protection
practice.
Question 16. We are proposing to require, in the individual-
protection standard, that the DOE must project the disposal system's
performance after 10,000 years. Are the specified uses of the
projections appropriate and adequate?
Response. We agree that the NRC should not be required to use the
results of the DOE's analyses of repository performance after 10,000
years. However, should the DOE elect to use results of these
calculations to further support its safety case, to demonstrate the
capability of individual barriers, or to justify uncertainty estimates
for data supporting its compliance demonstration, the Commission should
not be constrained from considering such information. For this reason
we object to the wording on p. 46993, that states that ``. . . NRC is
not to use the additional analysis in determining compliance with
proposed Sec. 197.20.'' We recommend that the EPA modify this statement
to read ``. . . NRC is not required to use the additional analysis in
determining compliance with proposed Sec. 197.20.''
responses to further requests for comment in the proposed standard
Question (p. 46997). Is it appropriate for the EPA to set
guidelines for the use of expert opinion in this standard and, if so,
what should those guidelines be?
Response. It is inappropriate for the EPA to set guidelines for the
use of expert opinion in its standards for Yucca Mountain. The NRC's
licensing requirements and licensing process will govern the DOE's use
of expert opinion in the development of its licensing case for a
repository at Yucca Mountain. Furthermore, the NRC has already issued
guidance on this matter (see Kotra, J.P. et al., NUREG-1563, ``Branch
Technical Position on the Use of Expert Elicitation in the High-Level
Radioactive Waste Program,'' 1996).
Question (p. 46998). Is it appropriate for the EPA to establish
assurance requirements . . . and, if so, what should those requirements
be?
Response. It is inappropriate for the EPA to establish additional
qualitative ``assurance requirements'' to ``add confidence that the
Yucca Mountain disposal system will achieve the level of protection
proposed in the quantitative standards.'' The degree of confidence that
the NRC must have, in assessing whether DOE's compliance demonstration
satisfies the EPA disposal standards, is inherently an implementation
matter for the NRC licensing requirements and licensing process to
determine. As a practical matter, the NRC has already included
criteria, in its proposed Part 63 regulations, that address the issues
cited by the EPA as potential ``assurance requirements.'' Two of these
are matters explicitly assigned to the NRC by statute [i.e. Section
121(b)(1)(B) of the Nuclear Waste Policy Act specifies that the NRC
criteria ``shall provide for the use of a system of multiple barriers
in the design of the repository and shall include such restrictions on
the retrievability of the solidified high-level radioactive waste and
spent fuel emplaced in the repository as the Commission deems
appropriate (emphasis added)].
Question 4. It is my understanding that the EPA did not follow the
recommendations of the National Academy of Sciences in drafting their
proposed standards. What is NRC's view on this issue?
Response. NRC believes the EPA's proposal for specifying separate
requirements for protection of ground water does not follow the
recommendations of the NAS. Regarding the protection of ground water,
the NAS stated ``[w]e make no such recommendation, and have based our
recommendations on those requirements necessary to limit risks to
individuals'' (page 121, Technical Bases for Yucca Mountain Standards,
NAS, 1995). In its comments on the EPA proposed standard, the NAS Board
of Radioactive Waste Management (BRWM) contends that EPA ``. . . must
make more cogent scientific arguments to justify the need for this
standard.'' John Ahearne, current Chair of the BRWM, was recently
quoted as saying that ``it was not scientifically logical to add in the
groundwater standard.'' Additionally, EPA's proposed requirements for
protection of ground water through maximum contaminant levels (MCLs)
that result in non-uniform risk levels for individual radionuclides
(see November 2, 1999 letter to Stephen D. Page, enclosed with the
answer to question 3) is contrary to the NAS' recommendation for a
health-based risk value. For example, the specific MCL for iodine-129
equates to an individual dose of approximately 0.2 mrem/year, not 4
mrem/year as the rule suggests.
Question 5. I understand that the NRC has had conversations with
Carol Browner on this issue. Where does the NRC and the Administration
currently stand on the issue?
Response. After the publication of the National Academy of Sciences
(NAS) recommendations for high-level waste (HLW) disposal at Yucca
Mountain in 1995, the NRC and the EPA met at various staff and
management levels and with other government agencies (e.g., Office of
Management and Budget, Office of Science and Technology Policy) to
discuss appropriate standards for HLW disposal at Yucca Mountain. NRC
continues to have concern regarding the EPA's proposal to establish
separate limits for the ground-water pathway (e.g., MCLs) and for
individual protection (e.g., 15 mrem) because these funds could
increase costs and complicate licensing without providing a
commensurate increase in public health and safety.
In a November 2, 1999 letter to EPA (see enclosure to Question 3),
the NRC provided comments on the Notice of Proposed Rulemaking,
``Environmental Radiation Protection Standards for Yucca Mountain,
Nevada'' (64 FR 46976). NRC concerns regarding HLW standards include:
(1) needless application of a separate groundwater protection standard,
(2) use of outdated 1959 dosimetry (ICRP 2) for determination of
concentration limits for application of the groundwater protection
standard, (3) an overly stringent performance standard of 15 mrem (NRC
considers the range of 25 to 30 mrem protective of public health and
safety), and (4) inappropriate EPA constraints on implementation of the
standard, thereby intruding on NRC jurisdiction.
Question 6. The NRC just completed a pilot program to test the
agency's transition to a new oversight process for power reactors. What
were the principal lessons learned from the pilot program on the new
regulatory oversight process? When does the Commission plan to
implement the process on an industry-wide basis?
Response. The full results from the 6-month pilot program of the
NRC's revised reactor oversight process are reported in Commission
Paper SECY-00-0049, ``Results of the Revised Reactor Oversight Process
Pilot Program,'' dated February 24, 2000.
The principal conclusion from the pilot program was that the
revised reactor oversight process was an improvement over the existing
processes. The revised process met its objectives of (1) improving the
objectivity of the oversight process, (2) improving the scrutability of
the oversight so NRC actions have a clear tie to licensee performance,
and (3) risk-informing the oversight process to focus NRC and licensee
resources on performance having the greatest impact on plant safety.
Based on lessons learned from the pilot program, changes were made
to the revised oversight process. Changes included (1) deletion of the
containment performance indicator, (2) changes to the thresholds on
some performance indicators, (3) addition of guidance to address cross-
cutting issues (e.g., personnel errors in the human performance area)
in assessment letters if the items are tied to safety issues, and (4)
development of plant specific Significant Determination Process (SDP)
Phase 2 worksheets.
The pilot program also identified additional areas for improvement
to the oversight process, including the potential need for additional
performance indicators, the need for better definition of some of the
existing performance indicators, and potential refinements in the
inspection process. The exact nature of these changes require
additional data and observations from a larger population of facilities
than the nine pilot program plants. The staff will report to the
Commission on these potential enhancements following the first year of
implementation.
The Commission approved initial implementation of the revised
reactor oversight process on an industry-wide basis beginning April 2,
2000.
Question 7. The recent GAO survey concluded that the NRC staff has
not fully accepted the changes associated with the new oversight
process. What steps does the Commission plan to take in order to
achieve broader acceptance and more uniform support from the staff?
Response. The GAO survey was performed during the time the program
was being implemented at the nine nuclear plant sites selected for the
pilot program. At that time, working knowledge of the new oversight
process was limited to the relatively small number of inspectors and
other staff support personnel involved with the pilot plants. Thus,
many of those who responded to the GAO survey were not fully informed
about the program. Moreover, the survey responses reflected experiences
during the early stages of the pilot program.
Since the initial GAO survey, training on the new oversight process
was conducted in all of the regions. During the first year of
implementation, efforts to reach out to the staff will continue using a
variety of methods, including large group briefings, small group
discussions, newsletters, and the revised reactor oversight process web
site. In addition, the staff intends to monitor the implementation of
the new oversight process closely, solicit feedback from internal and
external stakeholders, and make changes as appropriate. The Commission
believes that as inspectors gain more experience with the program,
staff confidence and acceptance will increase.
Question 8. The NRC has developed an initiative to transition to
more risk informed and, when appropriate, performance based regulatory
approaches. What management oversight is the commission exercising to
ensure coordination of and timely and effective issue resolution
between the Office of Research's and Nuclear Reactor Regulation's
efforts to risk inform NRC regulations?
Response. The Commission and NRC senior management are actively
involved in oversight of the agency's risk-informed activities. This
has included periodic public Commission meetings on progress and
issues, as well as providing direction on specific issues brought
before the Commission.
The NRC staff is now developing a risk-informed regulation
implementation plan that will document staff plans and progress in
risk-informed activities. This document is to be updated semi-annually
and will be the subject of a public meeting after each update. In
addition, the agency's Executive Director for Operations has
established a Risk-Informed Regulation Steering Committee consisting of
high level representatives from each of the NRC program offices and a
regional representative. The committee is chaired by the Director of
NRC's Office of Nuclear Regulatory Research and includes the Director
of Nuclear Reactor Regulation. It is the function of this committee to
ensure good coordination among the offices to set priorities, and to
resolve issues that cannot be resolved at a lower level. This committee
also meets periodically with a counterpart industry committee
(organized by Nuclear Energy Institute) to coordinate and discuss items
of mutual interest.
Question 9. In the past, the NRC has been subjected to significant
criticism for the length of time it has taken to render decisions in
licensing actions. Although it appears that the NRC has made
considerable progress in, for example, license renewal, does the NRC
expect to streamline its hearing procedures generally? Please provide a
schedule for completion of all changes the NRC will implement to ensure
that its licensing process is as efficient as possible.
Response. The staff has been successful in addressing concerns
raised regarding timeliness in processing licensing actions. This was
due, in part, to efforts undertaken by the NRC informing the Licensing
Action Task Force in the Summer of 1998. The staff has also received
comment from a counterpart organization, sponsored by NEI. The Task
Force facilitated key changes to processes and procedures that
established a much more predictable review process in reviewing and
approving licensing action requests. The Task continues in its efforts
to improve the process and obtain input from stakeholders to improve
the NRC's efficiency in processing licensing action requests. To ensure
the continued success of this effort, the two groups continue to meet
on a bi-monthly basis.
In 1998, the regulated industry highlighted its concerns that the
licensing action inventory had grown considerably and a significant
number of licensing actions were taking an inordinate amount of time to
review and approve. The staff also became aware of the industry concern
that technical reviews were inconsistent and questions were being sent
to licensees that had little or no regulatory basis. Beginning in
October 1998, the Commission established three key performance metrics
related to the number of licensing actions to be completed, average age
of the licensing inventory and number of licensing actions in the
inventory. These have been incorporated in the NRC's Performance Plan.
Our progress in meeting the goals is routinely provided as part of our
monthly report to Congress on the status of NRC licensing and
regulatory actions.
The performance on NRR's processing licensing actions report card
for fiscal year 1999 was very positive. At the end of fiscal year 1999
the staff had surpassed the established goals. Specifically, the staff
issued 1727 licensing actions, while the goal for fiscal year 1999 was
1650. No licensing actions were greater than 2 years old and the
inventory had been reduced to 857 open licensing actions.
The NRC also has an exemplary record in dealing with the complex
license transfer cases that are coming before us. We were among the
first regulators to analyze and act on the transfer of the Pilgrim
operating license to Entergy Corporation from Boston Edison. We were
among the first to take action on the Three Mile Island Unit 1 transfer
from GPU to Amergen, and we promptly acted on the Clinton transfer from
Illinois Power to Amergen. There are several other complex license
transfer cases before us that arise from the restructuring of the
industry. These cases sometimes require a significant expenditure of
energy by our staff, but we will make continuing efforts to assure
timely resolution of those matters.
Finally, regarding your question about streamlining our hearing
procedures, it is important to note that on an annual basis less than
one percent of NRC licensing actions involve a request for a hearing.
Even so, the Commission is currently considering a draft proposed rule
which would make improvements to hearing processes in 10 CFR Part 2.
The proposed rule under consideration by the Commission would expand
the use of informal hearing procedures. Following Commission review and
the completion of any changes to the proposed rule which the Commission
deems to be necessary or desirable, the proposed rule will be published
in the Federal Register for a 60-day public comment period. After the
close of the public comment period, the Commission anticipates that it
would take 4 to 7 months to consider the public comments, make any
necessary changes to the proposed rule, prepare responses to the public
comments, provide for Commission deliberation and voting on the final
rule, and publish the final rule in the Federal Register.
Question 10a. Recently, the NRC Office of Inspector General
completed a study evaluating the NRC's assessment of fees under the
Independent Offices Appropriation Act of 1952 (IOAA) and the Omnibus
Reconciliation Act of 1990 (OBRA-90). The IG's report concluded that
there were several significant deficiencies in the NRC's methodology
for determining its fees. Specifically, the IG's evaluation determined
(1) by using the percent change methodology over an extended period of
time without first conducting an annual rebaselining analysis, the
NRC's Part 171 annual fees are being divorced from the cost of service;
(2) the methodology used to determine the NRC's hourly rate charged
licensees inappropriately excludes some generic costs and includes
others, and inconsistently uses budget data rather than direct costs;
and (3) there is inadequate management oversight, including providing
incomplete public information during the rulemaking comment period. The
response to the IG's report by the NRC's General Counsel and CFO
indicate disagreement with several parts of the IG's recommendations.
What actions will the NRC take to ensure that rebaselining is
performed on a more frequent periodic basis?
Response. Prior to fiscal year 1999, Commission policy required
that annual fees be rebaselined every five years, or earlier if there
was a substantial change in the total NRC budget or in the magnitude of
the budget allocated to a class of licensees. In fiscal year 1999,
based on experience gained as a result of applying the criteria for
rebaselining over the previous four years, the Commission implemented a
revised policy requiring that future annual fees should be rebaselined
every three years, or earlier if warranted, and that in any event, the
Commission will not use the percent change method for more than two
years in a row. The Commission's decision on the appropriate method for
establishing annual fees (i.e., rebaselining vs. percentage change) is
made each year after considering all relevant factors.
Question 10b. If the NRC is not going to develop rebaselining
thresholds, what are the other criteria used to evaluate the need to
conduct rebaselining?
Response. Establishing quantifiable threshold changes as the basis
for rebaselining does not address all of the factors the Commission
needs to consider when establishing fees each year. For example,
substantial changes in individual licensees' annual fee amounts may
result from many things other than a discrete change (e.g., changes in
the budget or in the amount of the budget allocated to a class of
licensees), such as reduced Independent Offices Appropriation Act fee
collections from a class of licensees or a decreasing number of
licensees in a particular class/category. Therefore, in fiscal year
1999 the Commission adopted a policy of rebaselining every three years
or earlier, if warranted, as stated in the response to Question 10(A).
Question 10c. Without rebaselining, how can the NRC justify the now
more distant relationship between NRC fees and actual costs?
Response. The NRC did rebaseline for fiscal year 1999 fees, so the
relationship between fees and costs is closer now, not more distant.
Furthermore, the Commission decided in 1999 that it would rebaseline
every three years, at a minimum, and earlier if warranted. The
Commission also believes that its annual charges meet the statutory
criteria that they be fairly and equitably allocated among licensees
and, to the maximum extent practicable, have a reasonable relationship
to the cost of providing regulatory services. To address licensee
concerns about fee stability and predictability, the Commission adopted
the policy of adjusting the annual fees by the percentage change in the
total NRC budget, with adjustments for the number of licenses and other
adjustments to meet the statutory requirement to recover approximately
100 percent of the budget through fees. This percent change method is
used only if there has not been a substantial change in the total NRC
budget or the magnitude of the budget allocated to a specific class of
licensees, in which case the annual fees will be rebaselined.
Question 11a. The IG recommended that the NRC evaluate the hourly
rate calculation methodology. Yet the response by the NRC's General
Counsel and CFO indicate that the NRC will undertake an examination of
the existing approach to determine if improvements can be made ``in a
cost effective manner.'' This answer seems to ignore the IG's point
that the NRC's fee development process must comply with the full cost
recovery principles contained in Independent Offices Appropriation Act
(IOAA) and OMB Circular A-25.
What action will the Commission take to address the IG's point?
Response. The Commission continues to believe that its fee
schedules are in full compliance with the requirements of the
Independent Offices Appropriation Act (IOAA) and OMB Circular A-25. The
NRC's methodology for calculating the fees it assesses under IOAA was
upheld by the Court in Mississippi Power & Light Co. v. NRC [601 F. 2d
223 (5th Cir. 1979)]. Nonetheless, the NRC's Office of the Chief
Financial Officer (OCFO) examined the contract costs excluded from the
current hourly rate calculations and provided the study results to the
NRC's IG on March 6, 2000. The study concludes that there is no basis
for including these costs in the hourly rate. In addition, the OCFO
contracted with a professional accounting firm to review the current
methodology for calculating the hourly rates and to recommend
alternative methods. The accounting firm's report is currently being
evaluated by the NRC; however, it concludes that the NRC's current
methods are recognized and acceptable means of assigning costs and
provides a consistent, defensible, and economically feasible means for
determining fees.
Question 11b. Why does the NRC seem unwilling to develop specific
definitions for generic costs, which would ensure that such costs are
treated consistently in fee calculations?
Response. A specific definition is lacking not because the
Commission is unwilling to develop it, but because it simply is not
possible to do so under the statutory framework that governs the
Commission's fee assessment program. Under the Independent Offices
Appropriations Act (IOAA), the NRC may assess Part 170 fees only for
specific services provided to identifiable beneficiaries (31 U.S.C.
Sec. 9701). These services include primarily licensing and inspection,
but also could include rulemaking and research that are performed for a
single identifiable beneficiary, such as research performed to enable
the staff to review a particular license application. But costs of
generic activities that cannot be attributed to a single identifiable
beneficiary, such as rulemaking or research that benefits all
pressurized water reactors, cannot be recovered pursuant to the IOAA
(Florida Power & Light v. NRC, 846 F.2d 765 (D.C. Cir. 1988), cert.
denied, 490 U.S. 1045 (1989)); Mississippi Power & Light v. NRC, 601 F.
2d 223 (5th Cir. 1979), cert. denied, 444 U.S. 1102 (1980)). Under the
Omnibus Budget Reconciliation Act of 1990, as amended, the NRC must
recover in fees approximately 100% of its budget authority, minus sums
appropriated to the NRC from the Nuclear Waste Fund. Thus, the costs of
all activities not recovered through IOAA fees are ``generic costs'' or
other costs that must be recovered through the assessment of Part 171
annual fees. The category of generic costs is therefore ``defined''
mainly through a process of elimination of costs that are to be
recovered under the IOAA. The category necessarily defeats attempts at
specific definition because it encompasses a broad range of activities.
Nonetheless, the lack of a specific definition of ``generic costs''
does not result in inconsistent treatment of similar costs. To the
contrary, the statutory constraints outlined above leave the agency
little latitude as to how to treat specific or generic costs.
Question 11c. What is the agency's justification for formulating
hourly rates by using data developed for budget preparation and not
traceable to billable activities, rather than actual data from the
previous year's billings?
Response. The NRC's hourly rates are established to recover the
cost of maintaining a professional employee, such as salaries and
benefits and overhead, and to recover general and administrative costs,
such as heat, lighting, and supplies. These budgeted costs are incurred
whether a professional employee is performing work that is billable
under Independent Offices Appropriations Act (IOAA) (fees for services)
or work that is recovered through annual fees. The time spent by a
professional employee in performing work that is subject to IOAA fees
is traced to the billable activities and billed, at the professional
hourly rate, to the recipient of the service. Any direct contract
support costs incurred in providing the service are also traced and
billed directly to the recipient. Because the hourly rate is not
intended to be used only for work that is billable under IOAA, we
believe it is more appropriate to use budget data than to base the
hourly rate calculations on historical IOAA-type billing data. The
professional accounting firm's report, which is currently being
evaluated by the NRC, concludes that the NRC's current methods are
recognized and acceptable means of assigning costs and provide a
consistent, defensible, and economically feasible means of developing
fees.
Question 11d. The IG report is critical of the NRC's lack of
written procedures for preparing the annual fee rule. What action will
the Commission take to direct the NRC staff to develop such procedures?
Response. The NRC is currently compiling its annual fee rule
process in the form of a standard operating office procedure, which is
scheduled for completion by September 30, 2000.
Questions 12 and 13. The NRC continues to collect approximately 80%
of the total fees for generic activities. Approximately only 20% of NRC
fees are allocated for discrete services. In the past, the NRC has
justified the low percentage of its fees being allocated to specific
services based on (1) NRC inability to recover costs for providing
specific services to most federal agencies and for infrastructural
services rendered to Agreement States; (2) exemption of nonprofit
educational institutions from fees; and (3) a reduction in fees for
small businesses.
What steps has the NRC taken to increase the percentage of fees
allocated to discrete services so that the benefits derived from NRC
activities are more visible to the regulated community?
Response. The items listed in number 12 represent a small portion
of the annual fees that are collected for other than discrete services.
The principal component of the annual fees are costs for generic
activities (such as direct program costs for rulemaking, research, and
maintenance of an incident response center). These costs are not
recoverable pursuant to the Independent Offices Appropriations Act
(IOAA) through fees assessed for discrete services to applicants and
licensees.
In the fiscal year 1998 and 1999 Final Fee Rules, the NRC
instituted a series of changes to increase cost recovery under IOAA for
discrete services provided to identifiable beneficiaries. For example,
major changes include full cost recovery for resident inspectors and
project managers (excluding time spent on generic type activities,
leave time, etc.), and assessing fees for incident investigations,
certain performance assessments and evaluations, and reviews of reports
and other submittals, such as responses to Confirmatory Action Letters.
The NRC has on several occasions solicited public comment on the cost
recovery method for other discrete activities, such as contested
hearings and escalated enforcement actions. Those commenting on this
issue presented arguments both for and against assessing fees for these
activities. The NRC concluded there were legal and policy concerns with
assessing charges of this nature. Therefore, based on these
considerations, the Commission decided to continue recovering costs for
these types of activities through annual fees.
Although the NRC has taken steps to increase cost recovery for
discrete services, the percentage of costs recovered through fees for
services (IOAA fees) has been reduced by recent Commission policy
changes made for the convenience of licensees and the NRC. To
streamline the cost recovery process and ease burdens on the regulated
community, the annual fees assessed to materials users now include the
costs of inspections, license renewals, and license amendments. The
costs of these activities were previously recovered through fees for
services assessed to specific licensees. While this decision decreases
the percentage of fees for discrete services, the NRC has received very
positive feedback from the materials licensees concerning this change.
In their view, the revised approach provides greater fee stability and
reduces their administrative burden.
Question 14. What steps has the NRC taken to account for discrete
and general services and link them with fees paid?
Response. Costs for discrete services provided to identifiable
beneficiaries are billed to the applicants and licensees under
Independent Offices Appropriations Act (IOAA), unless exempted by law
or Commission policy. Exceptions to this policy are inspections,
license renewals, and license amendment costs for materials users,
which are included in the materials users' annual fees as a
streamlining and cost-saving measure. Legislation is currently pending
which would permit NRC to assess IOAA fees to Federal Agencies, who are
currently exempted by law from these fees. In addition, Commission
policy exempts non-profit educational institutions and certain
activities, such as contested hearings, responses to allegations and
escalated enforcement actions, from IOAA fees. These costs are
recovered through annual fees. The NRC is unable under existing law to
charge IOAA fees for generic activities; therefore the costs of these
activities are also recovered through annual fees.
Question 15. When does the NRC expect to provide users with a line
item budget analysis of discrete services and general fees?
Response. The NRC believes it provides sufficient information
concerning its proposed fee schedules each year to allow effective
evaluation and constructive comment by the public. For example, each
proposed fee rule provides detailed explanations of the budgeted costs
for the various classes of licensees being assessed fees. In addition,
the NRC work papers pertinent to the development of the fees are placed
in the NRC's Public Document Room on the first day of the public
comment period. These work papers provide additional information
concerning the development and calculation of fees, including NRC's
fiscal year budgeted resources at the activity and subactivity level
for the agency's major programs. The NRC staff is also available to
meet with interested parties in person, respond to written inquires, or
respond to telephonic inquiries to explain its fee schedules.
The NRC believes that sufficient information is currently provided
to licensees or applicants on which to base payment of invoices. The
NRC has addressed this issue previously in a similar response to the
American Mining Congress (60 FR 20918, April 28, 1995). The NRC's
invoices for full-cost licensing actions and inspections currently
contain information detailing the type of service for which the costs
are being billed, the date or date range the service was performed, the
number of professional staff-hours expended in providing the service,
the hourly rate, and the contractual costs incurred. The NRC will
provide available data concerning the bill upon a request of the
licensee or applicant. Additionally, if requested, the NRC program
staff will provide a best estimate of the hours required to complete a
specific licensing action, thereby enabling licensees to estimate the
costs.
Question 16. The NRC appears to have taken steps to remedy the
situation where licensees pay for agency services that do not benefit
licensees. Why has the NRC chosen to increase its general revenue
request without earmarking these funds for services that do not benefit
licensees (e.g., international activities)? Given that the basis is a
percentage reduction, how does this percentage relate to actual
expenses for these activities?
Response. The NRC believes that adjusting the percentage of the
budget to be recovered from fees is an efficient and effective means to
address the fairness and equity concerns associated with fees. We do
emphasize that any funds provided from the general fund would be used
to reduce or eliminate inequities in our fee schedules.
We have not sought to earmark specific funds for specific items for
two reasons. First, not all of the costs in question are specifically
budgeted activities. For example, the small entity subsidy is not a
budgeted item but rather is the amount that will not be recovered from
those licensees who pay reduced annual fees based on their status as
small entities. Second, identification of specific items may imply that
the NRC has two separate budgets with different importance and
priorities. This is not the case. NRC's budget is used for those
activities needed to carry-out our mission and meet our performance
goals, independent of how they are funded.
Historically, on the order of 10 percent of our budget has been for
those activities associated with fairness and equity concerns. For
example, in fiscal year 1999, the surcharge amount assessed to
licensees for these activities was $55.2 million, or approximately 11.7
percent of the total NRC fiscal year 1999 budget.
Question 17. The NRC has recently issued several enforcement
actions for violations of the employee protection provisions of 10
C.F.R. Sec. 50.7, on the basis that adverse employment actions were
motivated, at least ``in part,'' by the employee's engagement in
protected activity. In one of these actions, as a corollary to the ``in
part'' standard, the NRC ruled that a licensee retaliated against an
employee who has engaged in protected activity because the licensee
could not prove that its decisions were ``based solely on'' legitimate
business considerations. In another case the NRC found a violation
because the adverse action was ``related to'' protected activity. The
NRC's legal theory, initially captured in the Millstone Independent
Review Team (MIRT) report and later directly established in Enforcement
Guidance Memorandum (EGM) 99-007, appears to derive from discrimination
law other than that arising under Section 211 of the Energy
Reorganization Act. Under the criteria for a violation of 10 C.F.R.
50.7 set out in the MIRT and the EGM, the only nexus that must be
established between the protected activity and adverse action is
whether the adverse action was taken ``at least in part'' because of
protected activity. While this requires a finding of some retaliatory
intent, it does not allow the licensee to demonstrate--consistent with
10 C.F.R. Sec. 50.7(d)--that legitimate considerations dictated the
actual employment action taken. The NRC's current standard and approach
has never been presented to the Commission in open session, nor has it
been discussed with stakeholders. Please explain the basis for the
change in the legal standard and evidentiary threshold now being
applied in enforcement actions based upon alleged violations of 10
C.F.R. 50.7.
Response. The Commission has not changed the standards which it
applies to employment discrimination cases arising under 10 C.F.R.
Sec. 50.7. Although the MIRT report made a number of recommendations
regarding the procedures used to arrive at enforcement decisions, it
otherwise made no recommendations for substantive changes to what have
been the underlying legal standards applied in cases arising under
section 50.7. The Executive Director for Operations noted that
consistent application of the overall approach applied in such cases in
his June 14, 1999 response to MIRT.
Moreover, while it is true that there are some differences in the
standards applied by the Commission under section 50.7 and by DOL under
Section 211 of the Energy Reorganization Act, those differences are
dictated by the nature of the agencies' respective interests in and
roles with respect to the alleged discrimination. As you know, Section
211 (formerly section 210) was enacted to provide individuals who
believed they had been subjected to discrimination for raising safety
issues with a forum in which they could obtain a personal remedy, for
example, compensation or reinstatement. Thus, in applying Section 211,
DOL properly considers, in determining the appropriate remedy, whether
the individual has actually suffered some adverse action that would not
have resulted absent the individual's raising the concern. If a
licensee can prove that it would have taken the same action
irrespective of the protected activity, then the individual has not
been harmed and no personal remedy is warranted for the employee.
On the other hand, the Commission's interest in promulgating
section 50.7 was to ensure a work environment where individuals feel
free to raise safety concerns without fear that their doing so will be
used against them. Given its nexus to the Commission's health and
safety responsibilities, section 50.7 (and its analogues elsewhere in
the Commission's regulations) were promulgated under the authority of
section 161 of the Atomic Energy Act with the description of protected
activity modeled on section 211 of the Energy Reorganization Act. If
the staff can prove that an individual's engaging in protected activity
was a factor on which an adverse action was based, then a violation of
50.7 would be established. From the Commission's perspective, the
reliance on illegitimate grounds for taking an adverse action has a
harmful effect on the work environment that may warrant enforcement
action, even if the licensee could show that it would have taken the
same action irrespective of the protected activity. It is important to
emphasize the point that the staff would bear the burden of proof in
any hearing requested by a licensee to contest an enforcement action.
Thus, the staff would have the burden to prove by a preponderance of
the evidence that one of the reasons for the adverse action taken by
the licensee was that the individual engaged in protected activity.
This is entirely consistent with section 50.7(d) which is designed to
ensure that an individual cannot insulate himself from adverse action
by raising a safety concern. As long as the licensee does not consider
the protected activity, it is free to take any appropriate action it
desires without interference from the Commission.
Question 18. Given that Section 50.7(d) specifically allows
employment actions involving protected employees if those actions are
``dictated by nonprohibited considerations,'' please explain the basis
for citing violations of 10 C.F.R. 50.7 regardless of whether the
licensee demonstrates that legitimate reasons for adverse employment
action existed.
Response. As indicated in the answer to Question 17, section
50.7(d) applies to situations where the licensee takes an action which
does not take into account that the individual engaged in protected
activity. It is designed to ensure that an individual cannot immunize
himself from adverse action by raising safety concerns. As long as the
licensee bases its decision solely on reasons other than the employee's
protected activity, it is free to take any action it desires without
Commission interference.
Question 19. Does the Commission believe it is appropriate, as a
matter of policy, for the NRC to summarily reject evidence that there
was no retaliatory intent in a Section 50.7 case?
Response. The staff does not summarily reject any evidence in
reaching its decision on whether to proceed with an enforcement action.
Moreover, as noted in answering Question 17, the Commission staff would
bear the burden of proof in any enforcement hearing.
Question 20. Does NRC staff believe it is legally supportable to
determine that there was retaliatory intent in the face of evidence of
nonprohibited considerations supporting an employment decision?
Response. Yes. As previously stated, the issue is not whether there
is also a nonprohibited reason for the action taken but rather whether
a prohibited reason was a factor in taking the action at issue.
Question 21. Does the Commission believe it is sound public policy
to require a licensee in a Section 50.7 case to have to show the
absence of bad faith at all levels of its organization, i.e., that its
actions were based ``solely'' on nonprohibited concerns?
Response. As explained above, licensees do not have to show or
prove anything in a section 50.7 case. Rather it is the Commission
staff which bears the burden of proving that an action was taken, at
least in part, for prohibited reasons.
Question 22. As a matter of policy, does the Commission support
permitting licensees to take appropriate action to ensure the
competence and quality of their work force by assigning, counseling,
and as necessary, disciplining employees who do not contribute to a
safe environment, notwithstanding the fact such employees may have
engaged in protected activity. Please explain the basis for the answer
provided.
Response. Yes, and that is precisely the reason that section
50.7(d) was promulgated. A licensee may take action to assure the
competence and quality of its work force so long as participation in
protected activity is not a consideration in taking the action.
Question 23. A likely consequence of the NRC's new approach to
Section 50.7 cases necessarily will be that management will be
reluctant to make adverse employment decisions, set standards or assure
accountability, even where those decisions are warranted or would
further enhance safe operations. Management may be unwilling to assess
performance if this assessment is ``related to'' protected activity,
even if the performance issues go to the essence of an employee's
safety-related duties.
Response. In order to assure that a safety conscious work
environment exists at licensed nuclear facilities, 10 CFR 50.7 states
that discrimination against employees for engaging in protected
activities is prohibited.
However, 10 CFR 50.7 (d) states that ``Actions taken by an
employer, or others, which adversely affect an employee may be
predicated upon non-discriminatory grounds. The prohibition applies
when the adverse action occurs because the employee has engaged in
protected activities. An employee's engagement in protected activities
does not automatically render him or her immune from discharge or
discipline for legitimate reason or from adverse action dictated by
non-prohibited considerations.''
As noted in the response to Question 17, standards being utilized
by the NRC in Section 50.7 cases are not new and the percentage of
allegations being substantiated by the staff has not changed.
Management's ability to set standards, assume accountability and assess
performance are not adversely impacted by the NRC's enforcement of
employee protection regulations (10 CFR 50.7). For many years the NRC
has consistently held that adverse action taken against an employee, at
least in part because of protected activities, is a violation of 10 CFR
50.7. However, as stated, 10 CFR 50.7 (d) recognizes that, if an
adverse action were taken for legitimate reasons apart from the
protected activity, there is not a violation of 10 CFR 50.7. It is
incumbent upon the licensee to base the adverse action solely on
legitimate business reasons and not on the protected activities.
Including protected activities in the licensee's reasoning for why an
adverse action was taken leads the staff to conclude that the action
was taken, in part, because of the protected activity and was a
violation of 10 CFR 50.7. Including a protected activity in the
reasoning for why an adverse action was taken clearly sends the message
to other employees that engaging in protected activities may be used as
part of the basis for taking action against them. This would create an
environment where employees fear retaliation if they engage in
protected activities. Therefore, a discharge or other disciplinary
action must be dictated by the non-prohibited considerations.
Licensee management faces no different challenge under Section 50.7
than it does under the many other employment discrimination statues
which are potentially applicable to every employment decision which it
must make.
Question 24. Please explain whether and, if so, why the Commission
believes the new approach to Section 50.7 cases is in the public
interest, given that its impact is to effectively paralyze licensees
because of fear that protected activity may later be discerned by the
NRC to have played ``a part'' any given employment decision.
Response. The NRC inspection program has limited resources and uses
a sampling approach, focused on the most safety significant aspects of
the facilities. As a result, the NRC has traditionally also relied on
the openness of licensee employees to identify safety significant
issues. The NRC's approach to discrimination against employees for
raising safety concerns is aimed at maintaining an environment in which
employees feel free to raise such concerns, thereby enhancing the
overall ability of the agency to ensure the continued safe operation of
the nuclear facilities.
As stated previously, there is no new approach to section 50.7
cases. For many years the NRC has consistently held that an adverse
action taken against an employee, at least in part, because of
protected activities is a violation of 10 CFR 50.7. The percentage of
substantiated allegations has not increased. (The NRC substantiates and
takes action in approximately 10 percent of the discrimination
complaints identified.) The focus of the NRC regulations in this area
is to ensure that a safety conscious work environment exists in which
employees feel free to raise safety issues without fear of reprisal or
adverse employment action being taken against them. The Commission
believes that it is in the public interest for employees at nuclear
power plants to feel free to raise nuclear safety issues without fear
of reprisal.
10 CFR 50.7(d) provides that licensees may take employment action
against employees for legitimate reasons dictated by non-prohibited
considerations. Provided that licensee actions were based on these non-
prohibited considerations and not the protected activities, licensees
should feel confident that protected activity will not later be
perceived by the NRC to have played ``a part'' in any given employment
decision. Moreover, the application of the standards does not turn on
what the NRC ``discerned'' but rather what the NRC staff can prove by a
preponderance of the evidence in front of a neutral third party.
Question 25. Does the Commission believe that an inference of
retaliatory intent can be made from only a manager's knowledge that an
employee has engaged in protected activity? If so, please explain the
Commission's legal and policy justification for this position.
Response. No. Mere knowledge that an employee had engaged in
protected activity would not be sufficient to establish retaliatory
intent as is clear from a reading of section 50.7(d). In order to
establish a violation, the staff has to prove by a preponderance of the
evidence that, the employment action was based, at least in part, on
the fact that the employee had engaged in protected activity.
Question 26. Given that the Department of Labor administers Section
211, the NRC's 50.7 regulations are, at least in part, designed to
implement Section 211, and the NRC has little or no particular
expertise in the area of labor relations and/or employment disputes,
will the Commission reconsider the NRC's role in investigating
individual allegations or retaliation? Please explain the basis for the
answer provided.
Response. The Commission has no plans to reconsider the NRC's role
in investigating individual allegations of retaliation. The Department
of Labor considers whether or not the individual has actually suffered
some adverse action that would not have resulted absent the
individual's engagement in protected activity and whether it can
provide a remedy for the individual. The Commission's interest in
promulgating Section 50.7 was to ensure a work environment in which
individuals feel free to raise safety concerns without fear that their
doing so will be used against them. The NRC has a long history of
investigating alleged discrimination cases to ensure a safety conscious
work environment exists at licensee facilities such that employees feel
free to raise safety concerns. The freedom of employees to raise
concerns is an important part of the NRC's various oversight programs,
which highlights the importance of the Commission's policy on employee
protection.
The Atomic Energy Act (AEA) provides the Commission with authority
to investigate cases in which discrimination may have resulted from an
individual raising concerns, and to take appropriate enforcement action
against licensees for such discrimination. In 1977, the staff became
aware of a concern by a construction worker that he had been fired
because he raised a safety issue with an NRC inspector. The worker was
employed by a contractor to a utility holding a construction permit for
a reactor facility. The staff took the position that it had legal
authority under the AEA to investigate the allegation and take
enforcement action if the allegation was substantiated. The utility
refused to permit the investigation. The issue was reviewed by both the
Licensing and Appeal Boards. Both Boards held that the AEA provided the
Commission with authority to take action where a licensee or its
contractor discriminated against an employee for raising a safety
issue. The Appeal Board explained that labor disputes could ``engender
radiation hazards to the public of the kind that the AEA was designed
to guard against.'' \1\
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\1\ Union Electric Company (Callaway Plant, Units 1 and 2), ALAB-
527, 9 NRC 126, 133-39 (1979).
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Although the AEA provides the Commission with authority to take
proscriptive action against a licensee for discriminating against
employees who raise safety concerns, it does not provide authority to
order a direct, personal remedy to the employee. Consequently, on
November 6, 1978, Congress enacted Section 210 of the Energy
Reorganization Act (ERA), giving the Department of Labor the authority
to order a direct, personal remedy to the employee. Senator Hart,
urging his colleagues to accept Section 210, emphasized that ``while
new Section 210 of the Energy Reorganization Act of 1978 provides the
Department of Labor with new authority to investigate an alleged act of
discrimination in this context and to afford a remedy should the
allegation prove true, it is not intended to in any way abridge the
Commission's current authority to investigate an alleged discrimination
and take appropriate action against a licensee-employer, such as a
civil penalty, license suspension or license revocation. Further, the
pendency of a proceeding before the Department of Labor pursuant to new
section 210 need not delay any action by the Commission to carry out
the purposes of the Atomic Energy Act of 1954.'' \2\ (Section 210 was
changed to section 211 in the Energy Policy Act of 1992, Public Law
102-486.)
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\2\ 124 Cong. Rec. S15318 (daily ed. September 18, 1978), remarks
of Senator Hart.
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The Office of Investigations has conducted investigations into
numerous allegations of discrimination. For example, over a 3 year
period (1997, 1998, and 1999), the Office of Investigations completed
review of 277 discrimination-related cases. Based on the long history
of NRC investigations and the significant number of investigations
conducted per year, the NRC has significant expertise in the area of
nuclear employee protection. In fact, the NRC was involved in nuclear
employee protection prior to the Department of Labor's involvement
resulting from the 1978 addition of Section 210. In addition, most of
the attorneys who provide legal advice in connection with these cases
have many years experience in employment discrimination law. The
Commission plans to continue to investigate allegations of
discrimination, as has been the policy for more than 20 years.
Question 27. Has the NRC formally determined that, as a matter of
policy, the NRC staff, and particularly Office of General Counsel
staff, should serve in a prosecutorial role in predecisional
enforcement conferences? Please explain the basis for the answer
provided.
Response. The purpose of the predecisional enforcement conference
is to obtain information that will assist the NRC in determining the
appropriate enforcement action. This is often accomplished through an
interactive dialogue between the NRC and the licensee. The intent is
not to prosecute the case, but to develop an understanding of the
facts.
During the conference, the licensee, contractor, or other person
potentially subject to enforcement action is given an opportunity to
provide information related to the purpose of the conference.
Specifically, the licensee, contractor, or other person is encouraged
to present their understanding of the facts and circumstances
surrounding the apparent violation and whether they agree with the
facts. The staff routinely asks follow-up questions to further its
understanding of the facts. An explanation of the corrective actions
(if any) that were taken following identification of the potential
violation is also requested.
For a case in which an NRC Office of Investigations (OI) report
finds that discrimination as defined under 10 CFR 50.7 (or under
similar provisions in Parts 30, 40, 60, 70, or 72) has occurred, the
employee or former employee who was the subject of the alleged
discrimination is normally provided an opportunity to participate in
the conference with the licensee/employer. This participation is
normally in the form of a statement and comment on the licensee's
presentation, followed in turn by an opportunity for the licensee to
respond to the employee's presentation. The purpose of the employee's
participation is to provide information to the NRC to assist it in its
enforcement deliberations.
A conference is the last step in the fact-finding process, and is
conducted prior to any NRC enforcement action or NRC adjudicatory
hearing on the enforcement action.
Question 28. Please provide examples of other federal agencies with
responsibility to protect health and safety that have enacted
enforcement-based regulations (like Section 50.7) to address ``chilling
effect.'' Please specifically identify the regulations implemented by
the named agencies for this purpose.
Response. Section 50.7 does not directly address ``chilling
effect''; rather, it prohibits discrimination. If not corrected,
discriminatory actions can then lead to a degraded safety conscious
work environment, or a ``chilled environment.'' We are unaware of
provisions implemented by other agencies similar to section 50.7.
In 1993, an NRC task force contacted a number of federal
departments and agencies and discussed their policies concerning
employee protection. Although a number of statutes were identified that
related to employee protection, the statutes provided, like section
211, a remedy for the aggrieved employee through the Department of
Labor.
Recently, the staff recognized a need to contact other federal
agencies again and review their rules, procedures, and practices. The
staff recognizes that both the Department of Energy and the Federal
Aviation Administration have recently strengthened their programs
through legislation and rulemaking. However, an initial search of
certain of the previously contacted agencies' web sites indicated
little of substance has changed since 1993. The staff intends to
discuss these and other agency programs with appropriate officials to
identify similarities.
Note: It is the NRC's understanding, although not verified through
the identified agencies, that the Department of Transportation's rule
on employee protection for commercial motor vehicle safety (49 USC
31105) does not contain provisions for taking enforcement actions as
specifically described in 10 CFR 50.7(c). Additionally, on March 10,
2000, the Department of Energy's rule on employee protection, 10 CFR
708, ``DOE Contractor Employee Protection Program,'' became effective;
however, 10 CFR 708 appears to address an individual remedy through DOE
investigations and hearings similar to DOL's role rather than an
enforcement policy to prevent or minimize a ``chilling effect.''
Question 29. The Office of Enforcement issues Enforcement Guidance
Memorandum to apprise NRC staff and licensees about various enforcement
issues, including interpretations of various provisions of the
Enforcement Policy, etc. What process exists for ensuring that EGMs and
other agency documents do not establish new or change existing
Commission policy?
Response. Enforcement Guidance Memoranda (EGMs) are staff documents
providing guidance to the staff on how to administer the enforcement
program (including administrative process issues) and how to implement
the Enforcement Policy. By definition, EGMs cannot change Commission
policy. If there is an inconsistency between the Commission's
Enforcement Policy and an EGM, the Enforcement Policy--as a policy
statement--takes precedence over staff procedures. In an effort to
ensure that EGMs do not inadvertently revise existing policy, draft
EGMs are subject to extensive internal review prior to issuance.
Because EGMs are not intended to establish new or change existing
Commission policy, they do not require prior review by the Commission
but in certain cases, EGMs are reviewed by the Commission before being
issued.
At the time that EGMs are made public, they are included on the
Office of Enforcement's (OE's) website. Although public comments are
not currently solicited prior to issuance of EGMs, interested parties
may always provide comments for OE's consideration. If warranted, the
EGM may be revised after public comment. OE is initiating the practice
of stakeholder review prior to EGM implementation when time permits.
Question 30. Often research efforts are of an anticipatory nature
with a general, rather than clear nexus as to how or to whom a benefit
might accrue. Consequently, research funds are often subject to
significant scrutiny and criticism as to the value and cost of the
activity. In the fiscal year 1993 NRC budget authorization, the NRC
research budget allocation was not included as a ``fairness and
equity'' item for the public good. Instead, the research budget has
been funded from user fees rather than being appropriated. Would you be
in favor of modifying the NRC fee structure such that those elements of
the research budget not related directly to licensee regulation be
exempt from recovery via user fees?
Response. The NRC research budget was not included as a ``fairness
and equity'' concern in the fiscal year 1993 NRC study because the
research activities did not meet the criteria that were used for
identifying such concerns. The activities that were included in the
study were not directly related to the licensees who paid the fees or
provided support to both NRC and non-NRC licensees. The costs of NRC
research activities are directly related to the class of licensees who
pay the fees.
NRC's regulatory research program is designed to resolve identified
and potential safety issues and to provide technical information and
tools that reduce uncertainties in knowledge and therefore enable the
NRC to make more realistic decisions. Accordingly, the research program
is directly related to licensee regulation, resulting in improved
protection of public health and safety and often avoiding unnecessary
burdens on licensees.
NRC research activities are predominantly confirmatory--that is,
they address specific needs and issues arising out of operating
experience, plant aging, the decommissioning of licensed facilities,
and licensee initiatives. This type of research is initiated by a
specific request by the Office of Nuclear Reactor Regulation or the
Office of Nuclear Material Safety and Safeguards. Anticipatory research
areas are identified by the Office of Nuclear Regulatory Research, in
consultation with other offices, to address issues that the staff
judges may become important in the future. Historically, anticipatory
research conducted by the NRC represents a small percentage of the
regulatory research program, but even that research has had significant
benefits in maintaining safety, enhancing regulatory effectiveness, and
reducing unnecessary regulatory burden. For example, extensive research
to assess the safety significance of plant aging formed the technical
foundation for both the development of the regulatory framework and
ongoing decisions on license renewal, which is allowing licensees to
extend the operating life of their facilities in appropriate cases.
Further, development of Probabilistic Risk Assessment (PRA) methods not
only created the groundwork for conducting risk assessments and for the
current efforts to risk-inform our regulations, but also has supported
decisions on a number of regulatory issues. Research to better
understand fission product release, transport and deposition during
core melt accidents has resulted in a fundamental revision to
regulatory requirements (i.e., source term), allowing licensees to
eliminate unnecessary burdens while maintaining adequate protection.
NRC may be the sole agency which collects the fees to fund its
research activities from classes of licensees . The critical issue for
the Commission is the availability of adequate research resources to
carry out its safety regulatory mission both in the short and long
term. If the Congress believes that funding a portion of research
activities from general funds instead of fees is appropriate, the
Commission is prepared to work with Congress to that end.
ADDITIONAL COMMENTS FROM COMMISSIONER MCGAFFIGAN ON QUESTION 30.
I support moving our research program, both anticipatory and
confirmatory research, off of the fee base and into a general fund
appropriation. I firmly support a strong NRC research program. I
believe that our research program benefits both the public and
licensees. It leads to sounder, independent regulatory decision-making.
It often permits changes in our rules that reduce unnecessary
regulatory burdens on the industry. Occasionally, it requires us to add
new rules to protect public health and safety.
Unfortunately, some, but by no means all, in industry myopically
focus on the occasions where NRC research leads to new requirements and
miss the far more numerous instances when our research program
validates the opportunities for introducing new technologies or for
eliminating excess conservatism in the NRC's largely deterministic,
prescriptive regulatory framework. This framework was put in place
decades ago when we knew far less and regulators appropriately erred on
the side of conservatism. Dr. John Ahearne, a former NRC Chairman and
Chair of the group which wrote the CSIS report, has termed this
industry view as terribly shortsighted. He has stated that he believes
Congress made a mistake in requiring that the research budget be paid
for entirely by licensee fees in the Omnibus Budget Reconciliation Act
of 1990. I agree.
The concern of many at NRC is that if Congress makes this change,
the research budget might be more likely to be reduced in the annual
Congressional appropriations process. They fear that we could end up
with an imbalanced program where the program offices would have to
shelve activities dependent on research results. They believe that if
the research program continues to reside in the fee base, and Congress
reduces our budget, we will retain the flexibility to allocate an
appropriate share of the cuts to research and the program and support
offices.
I respect that concern. However, the fact is that our research
program in the current fee-based framework has been eroded year by
year. Since 1993 the real reduction in the NRC research budget has been
about 50%, compared to an overall agency reduction of about 27%. Every
year the Nuclear Energy Institute questions our research program in
their annual comments on our fee rule. The 1998 Tim Martin report
suggested NRC needed no research program at all (in which case we would
lose our ability for independent analysis and be forced to become an
inflexible regulator locked into the past.) Our nuclear regulatory
research budget is now smaller than those of France and Japan, and we
become ever more dependent on leveraging the larger research programs
abroad to deal with issues of interest to the industry such as higher
burnups for fuel. Thus, retaining the research budget in the fee base
has hardly been a model for success.
I am willing to accept the possibility of greater scrutiny in the
Congressional budget process for our research program under a general
fund appropriation. I believe that such scrutiny, far from leading to
budget cuts, could lead to budget increases. Congress has traditionally
been very supportive of the research budgets of other agencies because
Congress understands the benefits of sound research programs. There is
a compelling case for our research budget even from a narrow industry
perspective. Perhaps that case will be clearer to all if the nuclear
industry ceases to be the sole industry which must pay for the research
program of its regulator.
Question 31. The Center for Strategic and International Studies
published a review of the regulatory process for nuclear power
reactors. A number of recommendations were identified on 13 issues
related to NRC operational practices and regulation. How are you using
these recommendations to improve the performance of the agency? How
have these recommendations been incorporated in the NRC's Strategic
Plan?
Response. As you noted, the CSIS report made recommendations in 13
areas related to NRC's regulation of nuclear power reactors. The report
acknowledged that ``. . . many of the recommendations and conclusions
made here were arrived at independently by the NRC and are already
under consideration or in place.'' Thus, although we believe our
Strategic Plan is largely consistent with the CSIS recommendations, it
is difficult to identify specific changes to NRC's Strategic Plan as a
result of the recommendations.
The agency has taken action to improve gency performance in the
areas addressed in the CSIS report. For example, in the areas
identified in the report as ``implementation issues,'' the inspection,
assessment and enforcement processes have been fundamentally redesigned
since the issuance of the report. Initial implementation of the Revised
Reactor Oversight Process (RROP) at all operating reactors commenced on
April 2, 2000. This new process responds to the CSIS recommendations in
these areas. Similar progress has been made on the four ``emerging
issues'' identified in the CSIS report. For license renewal, the
Commission is seeking to build on the success of the first two
application reviews and to regularize the renewal process by finalizing
its generic aging lessons learned (GALL) report and its standard review
plan for license renewal while working with NEI on the standard format
and content for an application. On license transfers, the Commission
has anticipated the large volume of applications as a result of
industry restructurings, and has put in place a framework of guidance
to speed the staff review. Similar progress is being made in the
emerging issues mix of decommissioning and risk-informed regulation.
Finally, with regard to the CSIS issues dealing with NRC processes,
the Commission has made substantial improvement to the license
amendment process, and is considering changes to its hearing process
(as discussed in more detail in our answer to question 9). We are
discussing improvements to the 10 CFR 2.206 petition process and will
hold a public commission meeting on proposed staff changes later in
May. We believe that our rulemaking process continues to deserve the
high marks given to it by the CSIS report. However, as noted in our
October 22, 1999 letter to the committee, after careful review the
Commission decided, contrary to the majority CSIS recommendation, that
averted onsite costs should be included in backfit analyses pursuant to
the NRC's backfit rule.
Question 32a. The process for NRC review and approval of the
initial two license renewal applications, submitted by Baltimore Gas &
Electric Co. and Duke Power Co., appears to be on schedule. It is
anticipated that many license renewal applications will be submitted in
the near future. Please respond to the following questions about what
lessons have been learned from the experience with the first two
license renewal applications and how these lessons are being applied to
improve the efficiency of the process in the future:
Are there any new technical issues that came to light as a result
of the two reviews?
Response. No new technical issues (types or effects of aging) have
been encountered. However, both license renewal applicants have
identified the need for additional programs to manage aging at the
plants for the extended period of operation. As we continue to review
different reactor designs, we will remain vigilant to ensure the
identification of any new technical issues.
Question 32b. What has been learned about the level of resources
needed for a license renewal application review?
Response. The experience gained from the review of the first two
license renewal applications is expected to result in improvements in
the efficiency and effectiveness of the license renewal process.
The NRC and the industry have also identified generic issues
associated with implementation of the license renewal rule that relate
primarily to clarification of the regulatory requirements and to
simplification of the review process. These issues are being resolved
in parallel with the license renewal applications to improve the
implementation guidance being issued by the NRC.
For subsequent license renewal application reviews conducted in
fiscal year 2000 and fiscal year 2001, the NRC will concentrate on
process improvements to define the review scope more closely and to
define future resource needs.
Question 32c. How is the agency planning to shift staffing and
budget resources to handle the increased workload in this area in the
coming years?
Response. Licensees have formally informed the NRC of plans to
submit 12 additional renewal applications through fiscal year 2003. The
NRC is budgeting resources to review these publicly announced license
renewal submittals and also allow for some consideration of unannounced
licensee renewal applications. Current budget estimates anticipate that
the NRC will receive 4 renewal applications in fiscal year 2001, 4 in
fiscal year 2002, and 8 in fiscal year 2003.
The staff recognizes the potential resource impacts of the
unexpected receipt of a large number of renewal applications and has
encouraged the licensees to inform the NRC of their plans for license
renewal. The NRC will use its Planning, Budgeting and Performance
Management process to update the budget in the event of emergent work,
including license renewal applications of which we were not previously
aware. The NRC expects efficiency gains in future reviews as experience
is gained and implementation guidance is improved.
Question 32d. Has the Commission reached any conclusions about the
adequacy of existing regulations for the extended term of operation?
Response. During the review of the first license renewal
applications and the development of implementation guidance, the NRC
did not identify any existing regulations that are not adequate for the
extended term of operation. In fiscal year 2001, after completing
development of the implementation guidance and gaining more experience
with application reviews, the staff intends to evaluate the existing
regulations pertaining to license renewal to determine if any changes
should be considered.
The NRC is also addressing the issue of the extent of credit given
for existing programs to manage aging effects. The implementation
guidance being developed will catalog aging effects that are adequately
managed by existing programs and identify those programs that need to
be augmented. This guidance will provide the basis for crediting
existing programs and focus future staff reviews on augmented programs
for license renewal. As discussed in the response to Question 32 (F),
the implementation guidance is scheduled to be issued in draft form for
public comment in August 2000.
Question 32e. In comparison to the 30 to 36 month targets set for
review of the initial applications, what is the agency's current target
for reviewing subsequent applications?
Response. Review of a license renewal application is planned to
take 30 months or less following receipt of the application. For the
first two applications, no hearing was conducted and the NRC was able
to issue the renewed licenses for Calvert Cliffs in 23.5 months. The
Commission similarly expects to decide on the Oconee application in
less than 24 months. The NRC will continue to monitor experience and
seek efficiencies where possible to improve on future schedules.
We anticipate the future reviews will require less resources per
application than the initial reviews because of lessons learned from
the initial applications. These resource savings will be available to
support the increased number of license renewal applications that are
under concurrent review.
Question 32f. What is the NRC's schedule for finalizing the
Standard Review Plan for license renewal applications?
Response. The NRC's ``Standard Review Plan for the Review of
License Renewal Applications for Nuclear Power Plants'' and the
associated Regulatory Guide, ``Standard Format and Content for
Applications to Renew Nuclear Power Plant Operating Licenses,'' have
been available in draft form since 1997. Revisions that incorporate
experience from the first two renewal reviews are scheduled to be
issued in draft form for public comment in August 2000 and in final
form in April 2001. Also planned to be issued on the same schedule is
the NRC's ``Generic Aging Lessons Learned Report'' that is referenced
in the standard review plan, and an industry guideline, NEI 95-10,
``Industry Guideline for Implementing the Requirements of 10 CFR Part
54--the License Renewal Rule,'' that would be endorsed by a regulatory
guide.
Question 33a. Please respond to the following questions relating to
how the Commission is planning to improve the efficiency of its
regulatory process for safeguards and security at nuclear power plants,
especially with regard to taking advantage of lessons-learned from the
regulatory process improvements being made in other areas of plant
operations:
How is the agency planning to carry over the lessons-learned to the
area of safeguards and security?
Response. The Commission has directed the staff to: (1) conduct a
comprehensive review of the regulatory requirements for safeguards and
security at nuclear power facilities, and (2) proceed with necessary
rulemaking. The primary goal of these initiatives, which has been
discussed with stakeholders, is to achieve more efficient, effective
safeguards and security requirements and to improve regulatory
processes in this area, including incorporation of lessons learned from
process improvements to the reactor oversight process. The staff is
scheduled to provide a proposed rule to the Commission in May 2001, and
a final rule to the Commission in July 2002, with publication of the
final rule in late 2002. The status of staff activities in this area
will be provided to Congress in our monthly report.
Question 33b. What changes are being planned in regulations to
improve the focus on aspects of safeguards and security most directly
linked to safety?
Response. The Commission has approved the staff 's approach to re-
evaluate the power reactor physical protection regulations and the
proposed definition of radiological sabotage by providing performance
criteria as the basis for physical protection regulations. Based on
discussions with stakeholders in a series of public meetings, the staff
developed a draft set of physical protection performance criteria in
terms of public protection that are consistent with criteria used in
other areas of nuclear power plant regulation. These performance
criteria will provided the risk-informed basis for the comprehensive
review of 10 CFR 73.55 and associated power reactor physical protection
requirements, including requirements to exercise protective strategies.
These performance criteria will be based on a concept of ensuring
that a plant retains the capability to shutdown the reactor safely and
assure long-term heat removal in the face of a malevolent act
consistent with the design basis threat. The staff is developing a
proposed revision of 10 CFR 73.55 with requirements to protect the
plant against such a malevolent act by protecting critical safety
functions.
Question 33c. What are the agency's plans for assessing and
adjusting the level of staff and contracted resources in this area?
Response. The staff has recently re-evaluated the level of NRC
staff and contractor resources needed in the safeguards and security
area as part of the development of the revised reactor oversight
process. Inspection resources in the reactor physical security area
were left essentially constant in the revised reactor oversight
process, compared to the previous inspection program. The staff plans
to re-evaluate resource requirements for the revised reactor oversight
process, including the safeguards and security area, after the first
year of its implementation. In addition, the staff will re-evaluate the
resources necessary in the safeguards and security area following
implementation of an acceptable industry program of exercises and
drills, and again following a review and revision of the reactor
physical security regulations.
Question 34. The committee understands that the nuclear industry
has developed a self-assessment program for security. What changes to
inspection programs can be made to take advantage of this industry
program for more effective oversight?
Response. In the development of the revised reactor oversight
process, the staff anticipated the future implementation of the
industry's self-assessment program and some changes to the inspection
program have already been made. The risk-
informed baseline inspection component of the revised reactor oversight
process includes inspections that will provide oversight of the self-
assessment program once it is in place. It is noted that the self-
assessment program is currently limited to exercises of protective
strategies. NRC staff oversight also includes inspections of licensees'
overall security and safeguards programs, including security access
authorization, access control, and security plan changes.
Question 35. Questions have been raised regarding the subject of
working hours and fatigue at nuclear power plants. What evidence do we
have that fatigue, in fact, is contributing to operational problems
within our nuclear facilities?
Response. In 1999, the NRC conducted a preliminary review of NRC
inspection findings and plant operational experience related to working
hours and worker fatigue at nuclear power plants. Findings from this
review were summarized in a letter dated May 18, 1999, from former
Chairman Shirley Ann Jackson to the Honorable Edward J. Markey. This
letter stated that the NRC had attributed few events at nuclear power
plants to personnel fatigue. However, it also noted that the number of
events for which fatigue has been a contributing factor cannot be
reported with certainty given the difficulty of making such
determinations.
The staff is reviewing the Commission's Policy on Factors Causing
Fatigue of Operating Personnel at Nuclear Reactors. During its review,
the staff will consider: (1) the substantial scientific literature
documenting the effects of fatigue on human performance; (2) the
recognition that approximately 50 percent of the events reported
annually to the NRC involve human performance issues; and (3) existing
NRC fitness-for-duty requirements.
In addition, in February of this year the staff met with
stakeholders for the purpose of better understanding issues and
concerns associated with this policy and to facilitate the policy re-
assessment process. The staff is currently evaluating the information
gained through this stakeholder meeting, inspection findings concerning
the working hours of personnel performing safety-related duties,
instances of personnel found inattentive to duty, and concerns raised
to the NRC regarding licensee practices and policies for ensuring that
personnel who perform safety-related duties are not assigned to work
while impaired by fatigue. The staff is also reviewing a petition for
rulemaking (PRM-26-2) which proposes to address the subject of worker
fatigue at nuclear power plants and is evaluating the information
gained through the public comments on this petition. The staff
anticipates that the policy reassessment process and review of PRM-26-2
will provide greater insights concerning the relationship between
worker fatigue and plant operational safety and will establish a basis
for appropriate NRC action on this matter.
Question 36. The committee is aware that the House Appropriations
Subcommittee on VA-HUD and Independent Agencies has encouraged the NRC
and Environmental Protection Agency to enter into a memorandum of
understanding (MOU), ``in the interest of ensuring that sites do not
face dual regulation.'' The NRC and EPA have been directed to report to
the House subcommittee by May 1, 2000, on the status of the development
of such an MOU. Can you please share with us what progress has been
made in reaching an MOU?
Response. Please refer to our response to your Question 2.
Question 37a. In August of 1998, the NRC pursuant to a statutory
requirement submitted a report to Congress on the Price-Anderson
nuclear insurance and liability statute. [The Price Anderson Act--Cross
the Bridge to the Next Century: A Report to Congress.] In the report,
the NRC recommends that the Price-Anderson Act be renewed with only a
few modest changes because the Act ``provides a valuable public benefit
by establishing a system for the prompt and equitable settlement of
public liability claims resulting from a nuclear accident.''
I assume the NRC still stands by this report and supports extension
of the Price-Anderson Act with few changes?
Response. The assumption is correct. The Commission still stands by
its report and supports extension of the Price-Anderson Act for 10
years with few changes.
Question 37b. Does the Commission agree that the Price-Anderson
insurance system worked at Three Mile Island by providing prompt
compensation to the public?
Response. Yes. The Price-Anderson Act worked as intended for the
public by providing prompt compensation in the following ways. The
insurance pools responded rapidly to the TMI accident by establishing
an office within 24 hours to pay claims for the living expenses of
families with pregnant women or pre-school age children who had
evacuated the five-mile area, at the Governor's suggestion. Families
affected by the advisory were advanced funds for their immediate out-
of-pocket expenses for food, lodging, transportation and emergency
medical care. The financial loss caused by the interruption of business
and loss of wages was compensated later.
Soon after the TMI accident, numerous lawsuits were filed in State
and Federal courts in Pennsylvania, alleging various injuries and
property damages. These suits were consolidated into one suit before
the Federal District Court in Harrisburg. A Settlement Agreement was
signed in these cases within two and a half years after the accident
occurred. Pursuant to the agreement the insurers paid $20 million into
a Court managed fund for economic harm to businesses and individuals
within 25 miles of TMI, and $5 million for the establishment of a
Public Health Fund. Additional sums have been paid out for indemnity
and expenses in investigating and defending claims.
However, additional personal injury claims were later filed mainly
in 1986--1987 and consolidated in the Pennsylvania Federal District
Court. That consolidated litigation in the Middle District of
Pennsylvania has not yet terminated. In that respect, it would be
difficult to conclude that there was prompt resolution. Nonetheless, it
is important to note several factors which contributed to the extended
time period.
1. There were between two and three thousand personal injury claims
involved.
2. The Three Mile Island incident was not determined to be an
extraordinary nuclear occurrence. Thus, special provisions of the Act
designed to expedite proceedings were not called into play.
3. This was the first significant litigation affected by the 1988
amendment's jurisdictional provisions. Thus, some novel issues were
presented which caused delays that would not be expected to be
repeated. There were, for example, difficult issues related to state
laws on time bars to litigation that were affected by the new
jurisdictional and choice of law provisions as applied retroactively to
claims allegedly resulting from the 1979 incident.
4. Summary judgment was granted in favor of the defendants and was
thereafter appealed, resulting in a partial remand. It is that partial
remand that is ongoing.
Question 37c. I understand that the unique Price-Anderson system of
a pre-paid insurance and retrospective premiums results in almost $10
billion in financial protection for the public in the event of a
nuclear accident.
Response. Your understanding is correct with respect to any nuclear
accident at a commercial power reactor or Department of Energy
facility, as well as during the transport of nuclear fuel to or from
such reactors and facilities.
With respect to nonpower commercial reactors and reactors operated
by educational institutions, the maximum amount of indemnity available
for paying public liability claims is $500 million to be paid by the
U.S. government under agreements of indemnification. For those required
by the Commission to have commercial insurance, an additional layer of
funds could increase the total available for compensating public
liability claims and paying expenses to $560 million. Requirements for
insurance are statutorily waived for educational institutions, and the
government's liability under its indemnification agreements begins
after the first $250,000 of payments for public liability.
Question 37d. Would this level of insurance protection exist but
for the Price-Anderson law?
Response. Without the Price-Anderson Act, the only insurance
protection would be from commercial insurers or voluntary industry
insurance pools. Commercial insurance of $200 million is currently
available. Under current Price-Anderson Act provisions, each power
reactor licensed to operate at the time of the nuclear accident would
be required to contribute, if needed, $83.9 million (assessed in
payments not to exceed $10 million annually) to a retrospective premium
utility pool. That sum would compensate injury to the person or
property of members of the public who were harmed. We have no basis to
determine what level of insurance would be available without Price-
Anderson.
Without an extension of Price-Anderson there would also be no
limitation of the liability for any reactor whose operator had not
executed an indemnity agreement before the termination of the Act. The
ability to compensate claims related to reactors not so indemnified
would be limited to the assets of the parties against whom there would
be a judgment of liability.
__________
RESPONSES BY RICHARD A. MESERVE TO ADDITIONAL QUESTIONS FROM SENATOR
SMITH
Question 1. You have stated that the ``protection of the
environment'' is one of your agency's strategic goals. EPA has
indicated that NRC radiation standards for decommissioning are not
adequately protective. Some have even questioned the NRC's
qualifications to develop radiation standards. Others charge that it is
the EPA that is unreasonable in its standards. Some charge that what
makes matters even more confusing to the licensees, is the EPA's
inappropriate application of radionuclide Maximum Contaminant Level
(MCL) drinking water standards to ground water. It is claimed that for
some radionuclides the MCLs would produce exposures as low as 0.02
mrem/yr, some 200 times lower than the 4 mrem/yr EPA water standard.
Please explain the NRC's concerns with EPA's approach and why the
application of the EPA's MCLs for radionuclides to groundwater is
inappropriate. Please fully describe the implications of the EPA
actions and pronouncements for your licensees and the regulatory
environment. Also discuss, in some detail, the basis and health
significance of the EPA's concerns regarding the NRC's regulatory
decisions in decommissioning.
Response. The NRC has a fundamental disagreement with the EPA
approach. The NRC believes that individual protection criteria, which
take into account all pathways, are sufficiently protective of the
groundwater pathway, and represent a more uniform and comprehensive
approach to protecting the public health and safety. The NRC is aware
that differences in NRC's standards (i.e., an individual dose of 25
mrem/yr from all pathways) and EPA's standards (i.e., an individual
dose limit of 15 mrem/yr from all pathways and separate requirements
for the protection of ground water) might suggest that there are
resulting differences in the level of protection. However, the level of
protection provided by either standard, when viewed in light of current
epidemiology, is comparable. For example, EPA has determined that the
NRC dose limit results in a cancer incidence (not fatality) risk of 5
x 10-4 and that the EPA dose limit results in a cancer
incidence (not fatality) risk of 3 x 10-4. Although EPA
concludes that the NRC standard is not acceptable, the mathematical
difference in the cancer risk between the two standards is so small
that the epidemiology would not distinguish between them. Moreover,
although there is little difference in the level of protection
provided, analytical and decommissioning costs will certainly increase
significantly under the EPA approach.
The NRC all-pathways annual individual dose limit of 25 mrem is
fully protective of public health and safety and is a suitable standard
for radiation protection. The 25 mrem/yr limit represents a fraction of
the national and international public dose limit of 100 mrem/yr. The
International Commission on Radiological Protection (ICRP) and the
National Council on Radiation Protection and Measurement (NCRP) use an
approach similar to NRC's in setting an acceptable risk level. ICRP and
NCRP are organizations which are chartered, and internationally
recognized, for the development of basic radiation protection standards
throughout the world and in the U.S. Their findings are contained in
ICRP Publication 60 and in NCRP Report No. 116, respectively. Based on
a review of health and societal issues, both documents (while
acknowledging the difficulty of setting standards for an ``acceptable''
public dose limit) arrive at 100 mrem/yr from all sources as a level
that can be said to be acceptable. Generally, a principle of
apportioning this total dose limit is used to constrain specific
sources of exposure. ICRP emphasizes that these partitions of the
individual dose standard for individual activities such as waste
disposal are not dose limits but rather are constraints, above which
doses would not necessarily be considered unacceptable unless the dose
exceeded 100 mrem/yr. ICRP recommends a constraint value in the range
of 30 mrem/yr. In addition, none of the national and international
recommendations for radiation protection calls for a separate standard
for groundwater as required by EPA. The drinking water pathway is
included in the all-pathways approach and there is no reason to single
it out for a lower dose limit.
Not only does EPA have a separate ground water limit of 4 mrem/yr,
EPA implements this ground water limit by establishing maximum
concentration limits (MCLs) for various radionuclides. EPAs application
of the MCLs for decommissioning activities is inappropriate for several
reasons. First, EPA originally derived these limits to protect
consumers from harmful contaminants in drinking water from public
drinking water supplies. If the drinking water contamination level was
too high, the tap could be closed and the water further treated to meet
these standards. However, without a technical justification or cost
benefit analysis, EPA is attempting to apply MCLs to protect ground
water. The MCLs were not designed as a ground water protection standard
and are inappropriately being applied in this area.
Second, MCLs, as they exist today, result in non-uniform risk
protection levels for the various radionuclides. The EPA's MCLs may
have appeared to be reasonable standards when they were developed in
the mid-seventies. In view of what is known today, however, about risk
posed to individual organs by radiation exposure, the MCLs for
individual radionuclides provide levels of protection that vary
significantly (risk values vary more than 10,000 fold). In effect, the
MCLs for radionuclides with exposures much below 4 mrem/year (to as low
as 0.02 mrem/yr) become the effective standard for the site as they
establish very limiting conditions for acceptability which could result
in resource expenditures without additional protection to public health
and safety. The NRC strongly objects to the application of MCLs that
result in non-uniform risk levels because such practices (1) contribute
to greater confusion about the level of risk that is acceptable and
attainable and (2) undermine confidence that the health and safety of
the public are being protected. There is no sound scientific or
technical basis for the arbitrary range of protection afforded by EPA's
MCLs.
Finally, the inappropriate application of MCLs to decommissioning
not only provides no additional benefit to public health and safety,
but also adds complexity and additional cost to any demonstration of
compliance with the regulations.
Question 2. You are developing an MOU with the EPA to resolve the
confusion associated with EPA's activities regarding decommissioning of
nuclear facilities. What progress have you made so far? Is the EPA's
Office for Air and Radiation the lead for this activity? Please explain
the role of that Office and the Office of Water in this effort.
Response. In report language to H.R. 2684, August 1999, it was
stated that EPA should continue its policy of deferring to NRC for
cleanup of NRC licensed sites. Both agencies were requested to report
by May 1, 2000, on development of a Memorandum of Understanding (MOU)
that would clarify EPA's involvement at NRC sites, when requested by
NRC. The Commission responded to Congressional oversight committees,
including this committee, on May 1, 2000, on the status of the
development of such an MOU and stated that it reserved any conclusion
as to whether an MOU will be achievable. The NRC will keep the
committee informed about the status of the MOU.
Limited progress has been made on developing an MOU. Mr. Timothy
Fields, EPA Office of Solid Waste and Emergency Response sent a
February 17, 2000, letter to Dr. William Travers, NRC Executive
Director for Operations indicating that Mr. Larry Reed would serve as
the EPA point of contact for development of the MOU. This letter
enclosed a memorandum providing EPA guidance that is intended to
clarify EPA's role under the Comprehensive Environmental Response,
Compensation, and Liability Act at facilities previously or currently
licensed by NRC. These materials provided by Mr. Fields suggested to
NRC that the differences in each agency's policy may not be resolvable
without legislation.
On February 23, 2000, NRC sent a letter to EPA Administrator
Browner, that enclosed a draft MOU between EPA and NRC on the
decommissioning and decontamination of NRC-licensed sites, consistent
with the House Report language. The proposed draft MOU included
provisions that the NRC would provide notice to the EPA of those cases
in which the NRC's all-pathways residual radiation dose may exceed
EPA's preferred all-pathways limit of 15 mrem/year and of those cases
in which NRC requests EPA consultation. These proposals would provide
finality, avoiding potential dual regulation for NRC-licensed sites by
relying on the NRC's decision on license termination. Because the MOU
is the subject of on-going negotiations between the two agencies, the
draft MOU was not made public.
On March 14, 2000, NRC responded to Mr. Fields' February 17, 2000,
letter. The NRC letter requested initiation of a process that would
lead to finalizing an MOU to eliminate dual regulation at
decommissioning sites consistent with NRC and EPA requirements.
On March 22, 2000, Mr. Fields, EPA, responded to the NRC letter
indicating EPA was optimistic about the development of a workable MOU
that would address the sites in a protective manner without dual
regulation.
Subsequently, each agency's representative for development of the
MOU met on March 27, 2000, and April 24, 2000, to discuss each agency's
policies and processes related to site decommissioning and to discuss
options for development of an MOU. At the April 24, 2000 meeting, both
agencies exchanged ideas concerning language for an MOU. Each agency
agreed to meet again on May 23, 2000, which will provide an additional
opportunity to discuss options for development of an MOU. NRC staff
have also been meeting with EPA Office of Radiation and Indoor Air
(ORIA) and EPA Region I to develop a protocol that addresses site-
specific cases.
In the past, the NRC has offered legislative language which would
amend the Comprehensive Environmental Response, Compensation, and
Liability Act to address the Commission's concerns with dual
regulation. In 1997, H.R. 3000 contained language in this regard that
was acceptable to the Commission. If current efforts to create an
acceptable MOU between the two agencies fail, the Commission would
support a legislative solution.
Question 3. Please explain the rationale for the Commission's
decision to move the Technical Training Center from Chattanooga to
Maryland. Also please provide a cost-benefit analysis for this decision
including the initial capital cost required for this effort.
Response. In February 2000, the Commission reached a unanimous
decision to relocate the NRC Technical Training Center (TTC) from its
existing location in Chattanooga, Tennessee, to a location near the NRC
headquarters buildings in Rockville, Maryland. The Commission considers
it important to establish a more robust technical training program in
headquarters, where approximately 1,900 of the approximately 2,800 NRC
staff members are located. Relocating the TTC staff and functions,
along with the four full scope reactor training simulators which model
the operational reactor vendor designs in the U.S., would enable the
NRC to enhance the level of training for headquarters personnel who
currently do not take full advantage of the TTC facilities because of
concerns about the associated travel involved. The Commission also
believes that the rapidly changing regulatory environment and the
emergence of new technologies require that the TTC staff work more
closely with NRC Headquarters managers and technical experts to
increase awareness of current agency activities and perspectives in
order to integrate these perspectives more fully into ongoing training
courses.
Prior to Commission consideration of alternatives, the NRC
contracted with a private firm, Grant Thornton LLP, to perform an
independent estimate of the costs of relocating the TTC and personnel
to a location near NRC headquarters in Rockville to estimate the costs
for maintaining and operating the TTC in Rockville versus Chattanooga,
and to prepare a break even analysis that identified the amount of time
it would take the NRC to recoup the relocation costs. The conclusions
from the independent cost study were that the costs to establish the
TTC in Rockville would be between $3.9 million and $4.2 million
depending on the number of simulators being moved, that only a small
percentage of the cost of establishing the TTC in Rockville could be
recovered, and that there were no break even points for any of the
scenarios considered by the cost study within the 10-year life cycle.
Subsequent to the completion of the independent cost study, additional
scenarios not identical to those depicted in the Grant Thornton LLP
final cost study report were considered and evaluated using the same
assumptions and methodology as used for the independent cost study. In
reviewing and studying the results, the Commission determined that over
a 10-year period there would be neither significant increased costs nor
significant savings as a result of relocating the TTC. The one-time
costs to implement the Commission's decision to relocate the TTC with
all four reactor simulators to the NRC headquarters area, as announced
on February 24, 2000, were estimated at $4.5 million.
On February 24, 2000, Senator Fred Thompson, Chairman, United
States Senate Committee on Governmental Affairs, requested that the
General Accounting Office (GAO) perform an analysis of the costs and
benefits associated with the Commission's decision to relocate the TTC
from Chattanooga to Rockville. On March 16, 2000, the Commission
decided to delay implementing the decision to relocate the TTC until
the GAO has had an opportunity to conduct an independent study of the
issue. The Commission directed the NRC staff not to take any action to
carry out the Commission's previous direction to move the TTC to
headquarters until the GAO issued its report and the Commission has had
an opportunity to review its recommendations. This GAO audit began in
April 2000; it is our understanding that the GAO report may be issued
in 5-6 months.
Question 4. In case there are delays in the finalization of the
high level waste repository, how prepared is the NRC to ensure that
there is enough storage capacity, and, specifically, is the spent fuel
cask certification process adequately addressing the needs of the
industry?
Response. Because the time of availability of a geologic repository
remains uncertain, the NRC staff has undertaken several initiatives to
respond to utilities' interim spent fuel storage needs, including
giving high priority to the review of dual-purpose cask systems that
accommodate the need for both spent fuel storage and transportation. We
have certified 12 generic, spent fuel storage cask designs and
anticipate certifying 2 additional designs by the end of fiscal year
2001. Of these 14 spent fuel storage designs, 7 will be dual-purpose
casks. So far, 13 reactor sites are utilizing dry cask storage
technology and 18 additional reactor sites plan to implement dry cask
storage in the near future.
The NRC is also working with industry on spent fuel storage options
at away-from-reactor sites which would store spent fuel from multiple
reactor sites. The Private Fuel Storage, Limited Liability Corporation,
a private consortium of eight utilities, submitted an application in
1997 for an ISFSI on a site leased from the Skull Valley Band of
Goshute Indians in Utah. This application is currently under review and
subject to hearing before an Atomic Safety and Licensing Board. Also,
in late fiscal year 2001 we anticipate receiving an application from
the Owl Creek Energy Project for a privately-owned, ISFSI to be located
in Fremont County, Wyoming.
NRC staff has made changes to streamline and make the technical
review process more predictable and stable. These review process
changes ensure that storage and transport portions of well-prepared
applications are reviewed and approved within 13 months of the start of
the review, an improvement of about 1 year over previous review time
estimates. The rulemaking certification process will add an additional
11 months, for an overall approval schedule of approximately 2 years.
The NRC staff is working to further improve and streamline the
review and regulatory process. For example, the NRC staff is working
with industry to develop implementing guidance for the recently revised
10 CFR 72.48, which will be effective mid fiscal year 2001. This
revised regulation will allow certificate holders (cask vendors) to
make minor, non-safety significant changes to their cask design without
obtaining prior NRC approval, (i.e., amending the certificate). The NRC
continues to work with industry on regulatory and technical issues of
mutual concern, such as shipping and storing high burn-up fuel, the use
of burn-up credit, and certificate of compliance and license renewal.
NRC maintains cognizance of the status of power reactors and their
capability to store spent fuel. The NRC will continue to maintain
awareness of any potential delays in the Department of Energy's waste
disposal program.
In summary, while the staff has already approved multiple spent
fuel storage cask design options, we continue to work with stakeholders
to improve the regulatory process and provide increased on-site and
off-site storage options.
Question 5a. The NRC has made serious strides to change its
regulatory thinking, i.e., the move towards a risk-informed approach.
This approach will identify some activities that may require more
attention and resources and some that should be dropped because of
their low risk.
What are those activities that would require more resources and
what are those that are candidates for elimination?
Response. The NRC, through its current programs and planned
initiatives, is implementing a risk-informed approach to its full range
of regulatory activities: rulemaking, licensing, inspection,
enforcement, performance assessment, and event response. Our experience
has shown that each activity contains a mix of risk-significant and
non-risk significant issues. The risk-informed approach does not
provide a basis for dropping any of these activities. However, within
each activity, the risk-informed approach allows the agency to
concentrate its resources, and the resources of licensees, on those
issues which have the greatest risk-significance. For example, under
the new reactor oversight process, each NRC inspection finding will be
evaluated using a significance determination process (SDP). Only those
findings which can be shown to have a significant effect on public
risk, or those such as discrimination or intentional violation, will
result in follow up action by our Regional Offices. This new approach
will ensure that risk-significant issues receive the appropriate level
of attention.
A second example relates to the NRC response to operational events.
When a potentially significant operational event occurs at a reactor in
the United States, the NRC conducts an inspection to determine the
proper agency response. These inspections may involve various size
teams of NRC staff. The newly implemented agency practice is to
evaluate the risk-significance of the event, and use that assessment as
a major input to the decision regarding what level of follow up
inspection is conducted.
Our approach to risk-informing 10 CFR Part 50, through evaluation
of the special treatment requirements for systems, structures, and
components, will likely result in reduction in regulatory oversight for
those areas that only contribute marginally to controlling plant risk.
For other areas, this approach may identify the need for additional
regulatory treatment. This effort is currently in progress, and it is
not possible to state definitively which areas will fall into the high-
and low-risk categories.
In summary, the risk-informed approach will provide the basis for
concentrating agency resources on those regulatory issues which have
potential significance to public risk, while placing less emphasis on
those issues which have only marginal impact on risk. We expect that
the overall effect of these changes will be an increase in the
efficiency of our regulatory program. However, it will not, in and of
itself, result in the elimination of any major regulatory activities.
The results of a risk-informed evaluation of agency activities also
provides input to the overall Planning, Budgeting and Performance
Management (PBPM) process. In the context of that process, resources
are prioritized according to the contribution of activities to meeting
the agencies four performance goals (maintain safety, increase public
confidence; increase effectiveness, efficiency, and realism; reduce
unnecessary regulatory burden). Other things being equal, activities
that have a low-risk significance would be assigned lower priority and
thus be allocated less resources.
Question 5b. Also, please explain the more significant concerns
expressed by our stakeholders if the agency becomes more performance-
based and less prescriptive.
Response. The NRC has had the benefit of interacting with a wide
variety of stakeholders on the subject of performance-based regulation.
In addition to correspondence on published material, the interaction
has occurred at two public workshops which were conducted as
facilitated discussions.
Many participants at the meetings were advocates for performance-
based approaches. It appears that application of the performance-based
approach, which emphasizes results and objective criteria, does not
itself cause much concern. However, some concerns have been noted
regarding the NRC's initiatives to develop and apply performance-based
approaches. The concerns may be characterized as ``implementation
issues'' and ``trust issues.'' Moreover, the foundations for
deterministic and prescriptive regulatory requirements in technical
fields are easier to communicate than performance, risk-based
requirements, and hence appear to raise fewer concerns.
The implementation issues appear to arise from past NRC practices
that are seen as inconsistent and incoherent. For example, some
stakeholders have expressed concern that the regulatory approaches
followed by the regions and headquarters staff have not always been
consistent with each other. Some have also stated that documents which
describe regulatory improvement efforts present positions with merit,
but the actions taken by NRC based on those positions seem to be at
odds with the expectations developed from the documents. Stakeholders
who feel this way seem to believe that performance-based approaches to
regulation will increase flexibility and hence the likelihood that
staff's actions will differ from the documented intent of the
regulatory requirement.
The trust issues appear to arise from a perception that industry
representatives have inordinate influence on NRC decisions. For
example, a concern has been raised that the NRC may accept performance
data reported by licensees without subjecting such data to rigorous
scrutiny. Some appear to perceive too much industry influence in
setting the performance standards as well.
The NRC is paying close attention to such concerns as we develop
and implement performance-based regulatory approaches. Public
involvement is being emphasized to a much greater extent and a wider
range of stakeholders are being sought to provide public input. Basic
policies and principles which have been articulated by the Commission
will be explicitly used as the foundation on which regulatory practice
will be conducted. Every attempt is being made to maintain an alignment
between our principles and our practices.
In addition, our staff has displayed a questioning attitude with
respect to changes in oversight programs (inspection, assessment,
enforcement). We encourage this type of attitude in our licensees, and
view it as healthy for the staff as well. We are continuing to reach
out to our staff and solicit feedback, and will make changes as
appropriate. As the new reactor oversight process is implemented and
improved, and inspectors become more familiar with it, we believe
confidence and acceptance will increase.
__________
STATEMENT OF RALPH BEEDLE, SENIOR VICE PRESIDENT AND CHIEF NUCLEAR
OFFICER, NUCLEAR ENERGY INSTITUTE
INTRODUCTORY COMMENTS
Chairman Inhofe, Ranking Member Graham and distinguished members of
the subcommittee, I am Ralph Beedle, senior vice president and chief
nuclear of fleer at the Nuclear Energy Institute, the Washington, D.C.
policy organization for the nuclear industry. I am pleased to testify
regarding the performance of the commercial nuclear industry and the
industry's safety regulator, the Nuclear Regulatory Commission.
The Nuclear Energy Institute (NEI) establishes industry policy
positions on various issues affecting the nuclear energy industry,
including federal regulations that help ensure the safety of the 103
operating commercial nuclear power plants in 32 states. NEI represents
275 companies, including every U.S. utility licensed to operate a
commercial nuclear reactor, their suppliers, fuel fabrication
facilities, architectural and engineering firms, labor unions and law
firms, radiopharmaceutical companies, research laboratories,
universities and international nuclear organizations.
The United States has the largest commercial nuclear power industry
in the world, with more than 2,200 reactor years of operating
experience. More than 100 nuclear power plants continue to safely and
reliably produce nearly 20 percent of America's electricity. Over the
past decade alone, improvements in nuclear plant operating efficiency
have effectively added the equivalent of twelve 1,000-megawatt plants
to the national electric grid. The U.S. nuclear industry also is the
global leader in the development of advanced nuclear power plant
technology. The foundation for this leadership role is the extensive
use of nuclear power in this country and the industry's outstanding
safety and performance records.
Nuclear power provides our nation with tremendous environmental
benefits. Without nuclear energy, the United States could not meet air
quality standards established by the Clean Air Act or international
commitments to reduce greenhouse gases, including carbon dioxide.
Nuclear power plants are the nation's largest emission-free source of
electricity, and they produce power at a competitive price--with
production costs that are only a fraction of a cent higher than coal-
fired electricity and substantially cheaper than natural gas, solar or
wind power.
Within Congress, and indeed across the United States, there is a
growing awareness that nuclear power is a proven, dependable technology
and a vital part of our nation's electricity generating system. Nuclear
energy will become even more essential if our nation is to meet the
multi-faceted demands of economic expansion, environmental stewardship
and population growth in the 21st Century.
NUCLEAR ENERGY: SAFE AND RELIABLE
The U.S. electricity industry is rapidly changing, and America's
nuclear industry embraces the challenges and the opportunities of the
new competitive marketplace. Most U.S. utilities with nuclear energy
are well positioned for competition.
The performance of U.S. nuclear plants has in each of the last two
years reached record high levels. In a restructured electricity market
that eliminates the rate base, a fully depreciated nuclear plant will
demonstrate enormous economic potential. Recognizing nuclear energy's
success and its importance both to economic growth and environmental
protection, we ask the subcommittee to maintain its oversight of the
Nuclear Regulatory Commission. Today's outstanding nuclear power plant
performance and safety must be maintained for the long term. The NRC's
transition to a nuclear plant oversight process that focuses on safety
is an important component for the future nuclear energy industry.
Attached to this testimony is the 1999 list of the World
Association of Nuclear Operators' (WAND) performance indicators for
nuclear reactors.
The nuclear industry's continued commitment to safe nuclear plant
operation must be accompanied by the NRC's commitment to fulfill its
mission as an effective and credible regulator. Both are essential to
maintain public trust and confidence in nuclear energy. In addition,
Congress must continue strong oversight over the NRC and support the
regulatory changes being made by the NRC.
RELICENSING AND LICENSE TRANSFERS
Nuclear power plants are valuable and highly marketable facilities,
with some plants being sold by those companies choosing to leave the
electricity generation business. In addition, the owners of the vast
majority of nuclear power plants are expected to extending the
operating licenses for an additional 20 years. The market demand for
nuclear power is evident in the purchase of Three Mile Island 1 and
Clinton nuclear power stations by AmerGen Energy Co., and the purchase
of the Pilgrim nuclear power plant by Entergy Operations Inc. Future
power plant sales and anticipated consolidations in the industry will
require the NRC to transfer operating licenses in a timely manner.
The NRC has recognized the importance of swift action in these
transactions, and the agency should be commended for its attention to
improving the license transfer process. The commission should continue
to ensure timely reviews and disciplined licensing board proceedings
related to license transfers and amendments.
Baltimore Gas & Electric Co., Duke Power Co., Entergy and Southern
Nuclear Operating Co. have filed applications with the NRC to extend
operations at eight nuclear reactors for additional 20-year periods.
Electric companies have announced they will file applications with the
NRC to extend the plant licenses at 22 other reactors during the next
four years. License renewals and transfers will become more frequent as
electric utilities reposition themselves in a competitive electricity
market.
A competitive market requires efficient, standardized and timely
license renewal and license transfer processes. Because the economic
viability of a license transfer proposal can be impacted by a
commission review, such processes are essential to enable nuclear
operating companies to make timely and effective business decisions. An
expeditious relicensing process best serves the public interest.
The NRC is expected to meet the original 30- to 36-month target for
completing the initial two license renewal applications, submitted by
Baltimore Gas & Electric Co. and Duke Power Co. In fact, those
applications are being completed ahead of schedule.
Using the experience of the first two reviews to refine the
process, future relicensing efforts should continue to be streamlined.
The NRC's performance on license renewal applications is an example of
the agency working in an efficient manner to accomplish an important
objective. A true test of the NRC will be the agency management's
ability to shift staffing and budget resources to review a larger
number of nuclear plant licensing extension applications expected in
the coming years. It is essential that the NRC incorporate efficiencies
that have been learned during the first two license renewal
applications into future license renewal applications.
NRC REGULATORY REFORM
A credible and effective regulator is vitally important to the
nuclear power industry. The new oversight process better focuses
resources on those aspects of plant operation most directly linked to
safety. The new system will continue the baseline inspection program
for all plants. Those plants that do not meet the highest level of
performance, as measured by 19 key plant performance indicators, will
receive increased inspection and oversight.
In moving to this new system, the NRC is replacing an oversight
process rooted in subjective plant performance ratings with a safety-
focused assessment process that uses objective measures of key plant
performance.
This new safety-focused regulatory oversight process retains the
baseline NRC inspection program at nuclear power plants. NRC inspectors
will continue to work at each nuclear power plant, monitoring
operations on a daily basis. In addition, the nuclear energy industry,
both through the plant owners and the Institute of Nuclear Power
Operations (INPO), continually performs on site plant evaluations and
self-assessments.
By focusing its resources on safety-related issues, the NRC can
carry out its mission most effectively. As NRC Commissioner Nils Diaz
testified in July 1998, the need to change the NRC's regulatory
approach ``is not an indictment of the past, but a requirement of the
future.'' Like the industry it regulates, the NRC must adapt to a
changing environment.
Mr. Chairman, I would like to emphasize the importance of this
subcommittee's support and oversight of the NRC in recent years.
Congressional oversight hearings have been instrumental in encouraging
the NRC commissioners and staff to move forward on many long-standing
issues, such as implementing the safety-focused, performance-based
approach for assessing nuclear power plant operations using objective
plant performance measures. Positive change is underway at the NRC--
change for which you and the commission both deserve credit.
Continued congressional oversight, coupled with periodic NRC public
meetings among all stakeholders, is producing the desired regulatory
change at the agency. There is general consensus among the NRC and its
stakeholders that nuclear safety will be enhanced by a more objective
prioritization of resources based on quantifiable safety significance
to plant operations. Building on this consensus for change, the
industry strongly urges this subcommittee and Congress to continue its
support and oversight of the NRC as it moves to a new regulatory
system. Congressional oversight can help keep the agency focused on the
essential public policy concern--maintaining a high level of public
safety. In that light, I would appreciate the opportunity to return and
tell you about the nuclear energy industry's progress soon after the
107th Congress convenes next year.
PILOT PLANT EXPERIENCE
After a year long development phase, the NRC tested the new
oversight process at 13 reactors in seven states during June-November
1999. The new oversight process used 19 indicators to gauge plant
performance in three areas: plant safety, radiation safety and
security. Performance for each indicator was measured during the course
of the pilot program and placed in one of four color-coded bands. The
color-coded indicators of plant performance will be posted quarterly on
the NRC's website--along with key findings from quarterly plant
inspections. Preliminary data from performance indicators for all 103
reactors show that 98 percent of all indicators are at the highest
level of safety.
The pilot program served its primary purpose by testing the
performance indicators and ensuring that participants understand how to
calculate and report data in each area to the agency. The industry and
the agency evaluated the new processes during the pilot program, and
modifications have been made to the program in preparation for an
anticipated industrywide rollout in spring 2000. The evaluation and
modification period should continue through the end of the initial year
of implementation at all plants.
NEI believes that the new oversight process, coupled with the
industry's commitment to safety, will achieve the following goals:
ensure that nuclear power plants continue operating safely
improve NRC efficiency by focusing resources on those
areas most important to safety
reduce unnecessary regulatory burden on licensees
improve public access to information on the safe operation
of nuclear power plants.
GAO REAFFIRMS NEED FOR NRC TRAINING AND STRATEGIC PLANNING
The nuclear industry shares the concerns of this subcommittee
regarding the results of the recently released General Accounting Of
flee survey of the attitudes of NRC employees. The study reports that
some NRC employees are skeptical of the shift toward safety-focused
regulations and a new assessment process. In reviewing those
conclusions, however, this subcommittee should not lose sight of an
important finding: The GAO study showed that the NRC staff--by a 2-to-1
margin--believes that the transition to a regulatory process that
incorporate risk insights will improve nuclear plant safety.
Despite staff skepticism, the GAO study also confirms that change
is beginning to take hold at the agency. Employee concerns voiced in
that study are typical of any large organization in transition. The GAO
conducted its survey in August and September of last year, but since
that time the NRC has completed its pilot program and conducted
internal and external evaluations of the program that involved staff in
each NRC region.
In its assessment of NRC staff attitudes, the GAO concluded that
there is a need for long-range planning and training by the agency as
its makes this significant transition to a new oversight process.
Planning and training are essential to improve NRC employee
understanding and acceptance of the new oversight process. The GAO
concluded that reform efforts were being hindered by the lack of a
detailed NRC strategic plan with quantifiable goals and objectives. The
industry also believes that the lack of adequate training for NRC
employees and the failure to implement a long-term strategic plan could
be impediments to the effective and efficient implementation of the new
oversight process.
Given this recent release of the NRC's strategic plan, the industry
has had time for only a preliminary review of the plan, but we believe
that the NRC's strategic plan as drafted is not sufficient to guide the
agency during this period of significant change. The industry agrees
with the GAO that the NRC must implement a more comprehensive strategic
plan to assist the agency's transition to a new regulatory framework.
Many of the concerns voiced by NRC staff to the GAO may stem from a
lack of effective communication between the commission and staff
regarding the new regulatory oversight process. Making the NRC long-
range strategic plan more detailed should be a major step in the
agency's earning the support of those staff who are reluctant to
embrace change. We suggest that the NRC's strategic plan be revised to
specifically include the following principles:
a safety-focused regulatory framework that incorporates
risk insights;
a more efficient and accountable regulator;
an integrated NRC strategy for achieving the objectives of
regulatory reform;
a specific timetable and milestones to ensure the NRC's
long-range plan is implemented on schedule; and
staff resources and a fully accountable budget that
supports fundamental NRC reform.
This multi-year plan also should include an annual planning process
that establishes a meaningful set of NRC objectives with measurable
results. The long-range strategic plan should integrate the principles
of regulatory reform outlined in this testimony, with measurable goals
and objectives to demonstrate progress to achieve reform of the
regulatory system. It also should recognize improved plant safety and
performance and account for new demands on the regulatory process, such
as license renewal and transfer procedures, resulting from the
transition to a competitive electricity market.
The commission must examine what appropriate levels of staffing and
budget are required for future years. The NRC should optimize its
resources, including an examination of its organizational structure, to
conform to the new regulatory oversight process. The commission also
should allocate resources in a manner that ensures adequate staff
support.
NRC SHOULD SEEK LEGISLATIVE CHANGES
The nuclear industry also believes that several legislative
proposals regarding the NRC deserve the support of this committee. NEI
supports each of the legislative proposals forwarded last year by the
NRC to Congress. Amending the Atomic Energy Act with respect to foreign
ownership, eliminating antitrust reviews at the NRC and providing for
flexibility in the hearing process are particularly important.
NEI appreciates the efforts of this subcommittee and the full
Environment and Public Works Committee in passing S. 1627 and
forwarding it to the Senate for consideration. Although we were
disappointed that several of the provisions recommended by the NRC were
not included in the bill, the industry will continue to work with each
of you to solve problems with those provisions so that they may become
law.
In addition to the legislative changes recommended by the NRC, NEI
urges the subcommittee to consider amending the Atomic Energy Act to
allow the NRC more flexibility in the way that it is organized. Current
law requires that the NRC organization include certain divisions. Those
restrictions should be removed from the statute, and the commissioners
should be allowed to organize the agency in a manner that is most
effective and efficient and that reflects the changing regulatory
environment.
NUCLEAR INDUSTRY USER FEE ADJUSTMENT
Current law requires the NRC to collect approximately 100 percent
of its budget through licensee user fees. Most of those fees are
collected as a generic assessment equally levied against all licensees,
creating, in effect, a ``miscellaneous'' category to describe nearly 80
percent of the NRC's budget. This practice is contrary to sound and
accountable budgeting. By collecting the vast majority of its budget
from a general user fee assessment, the NRC has failed to provide
Congress and the industry with the budget data and information
necessary for a thorough and complete evaluation.
In testimony last year before this subcommittee, NEI urged Congress
to ensure that the NRC adheres fully to the requirements of the Omnibus
Budget and Reconciliation Act of 1990 and submit legislation, if
necessary, to modify the NRC fee structure so that licensees are
assessed fees only for those NRC programs related directly to licensee
regulation. Unrelated agency expenditures, such as international
activities and regulatory support to agreement states or other federal
agencies, should be excluded from nuclear plant licensee user fees.
Instead, NEI recommended that those costs be included in a specific
line item in the NRC's budget, subject to the authorization and
appropriations process. Finally, the industry urged Congress to
reexamine the agency's ability to collect user fees annually until the
commission completes its regulatory reform initiatives.
As directed by this subcommittee in 1999, the agency is making
commendable progress to remedy the problem of user fees supporting NRC
activities unrelated to licensee activities. While these non-licensee
related NRC activities may be beneficial, they do not directly relate
to the regulation of agency licensees. The commission's budget for
FY2001 proposes that the NRC collect approximately 98 percent of its
budget from user fees levied on licensees, excluding funding from the
federal Nuclear Waste Fund. Each fiscal year from 2001 through 2005,
the proportion of the NRC budget derived from user fees will decrease
by 2 percent. By 2005, user fees should represent 90 percent of the NRC
budget base rather than the entire budget. While this is an important
first step by the NRC, the most equitable outcome would be an immediate
reduction in the user fee by the entire $50 million being spent on
unrelated activities.
DUAL REGULATION
Since the agency's formation in 1975, the NRC has been effective in
developing and implementing radiation safety standards to protect
public health and safety. Due to duplicative and overlapping regulatory
authority, the Environmental Protection Agency (EPA) has become
involved in the NRC's regulatory process, most notably in the
decommissioning and remediation of NRC-licensed sites. For example, the
EPA has challenged the NRC regulatory program in written comments and
public meetings, and it has threatened to overturn NRC regulatory
decisions by listing decommissioned sites on the National Priorities
List (NPL) under Superfund authority. Such dual regulation diverts
licensee resources, increases costs and reduces the effectiveness of
regulation by the federal government without measurably improving
public health and safety. It also undermines public trust and
confidence in federal regulation of nuclear technology.
Mr. Chairman, Congress cannot afford to let the federal government
waste public and private resources on overlapping regulatory activities
that do not improve public health and safety. This subcommittee has
jurisdiction over both agencies, and the industry encourages you to
eliminate dual regulation of NRC-licensed facilities and to reaffirm
the NRC as the sole and proper authority for assuring radiation safety
at those facilities.
RADIATION STANDARDS
Protection of public health and safety is the industry's priority,
and this concept extends to the practice of sorting solid material that
can be removed from nuclear power plant and other facilities that use
nuclear technologies without safety consequences. These materials are
slightly radioactive, but significantly less so than low-level
radioactive waste or used nuclear fuel, both of which must be disposed
at facilities licensed by the federal government. The NRC has
established safe standards for the control of liquids and gases at
these facilities, but no consistent federal standard has been
established for the removal of solid materials. Good public policy
demands consistency in the application of government regulations for
all materials.
In the interests of good public policy, the NRC is considering a
rulemaking to set standards for the removal of safe solid materials and
equipment to and from nuclear facilities. Materials above the NRC safe
release standard would continue to be fully regulated with regard to
safe handling, transportation and disposal. No high-level radioactive
waste or used nuclear fuel would qualify for safe uncontrolled release
under this type of standard. NEI commends this NRC initiative and
encourages the agency to move expeditiously through formal rulemaking
to establish a safe standard for removal of solid materials.
The international community has established guidance for the
removal of solid materials through the International Atomic Energy
Agency (IAEA). Member states of the European Community must have
clearance regulations in place by May of this year. On Aug. 31, 1999,
the American National Standards Institute approved ANSI/HPS N13.12,
``Surface and Volume Radioactivity Standards for Clearance,'' which the
NRC could endorse. It is time for this nation to establish a standard
for the clearance of safe materials from nuclear facilities, and the
NRC is the appropriate federal agency to do so.
SUMMARY OF KEY POINTS
In 1999, the nuclear power industry had a record year for
safety and electricity production. In fact, there has been a steady
improvement in nuclear power plant safety, as demonstrated both by NRC
and industry plant performance indicators. Through November of last
year, the average capacity factor for all 103 reactors was 86.8
percent--a 9.2 percent increase over 1998.
This outstanding safety record has set the stage for the
NRC's transition to a new nuclear power plant oversight process. This
process will focus attention on those areas of the plant most important
to ensuring safety, as indicated by a regular NRC inspection program
based on 19 plant performance indicators. Continued congressional
oversight of the NRC and support for this new process by this
subcommittee is important to continue a successful transition to
safety-focused oversight.
As the General Accounting Office's study of the NRC's new
oversight process reveals, change is beginning to take hold at the
agency. However, there is some skepticism of the new process among NRC
staff, as one might expect during this kind of transition by a large
organization. GAO recommends that the NRC implement additional training
and planning to educate the agency workforce on this new oversight
process. The industry agrees with GAO. There is a need for employee
training and long-range strategic planning by the agency to ensure that
NRC employees understand the new oversight process and that adequate
resources are available for initial implementation at all nuclear power
plants.
NEI has recommended, in previous testimony before this
subcommittee, that the NRC adopt a comprehensive five-year strategic
plan. Given the release of the NRC's draft strategic plan just last
week, the industry has had time for only a preliminary review of the
plan. However, the industry believes that the NRC's strategic plan as
drafted is not sufficient to guide the agency during this period of
significant change. The NRC's strategic plan should recognize improved
industry safety and performance and account for new demands on the
regulatory process, such as license transfer and renewal procedures.
The agency should optimize its resources, including an examination of
its organizational structure, to allocate resources in a manner that
ensure adequate staff to set the foundation for broad regulatory
reform.
The NRC should also incorporate sound budgeting practices
into its strategic planning. Under the current user fee system, most of
the fees are collected as a generic assessment equally levied against
all licensees. This creates, in effect, a ``miscellaneous'' category to
describe nearly 80 percent of its budget. This system also fails to
provide Congress and the industry with the budget information necessary
for a thorough and complete evaluation of its effectiveness and
efficiency.
The industry strongly encourages this subcommittee and the Congress
to continue its oversight of this agency as it moves to a safety-
focused regulatory oversight program. NEI appreciates this opportunity
to submit testimony, and recommends that this subcommittee holds a
hearing early in the 107th Congress to examine the industrywide
implementation of the new regulatory oversight process.
__________
STATEMENT OF MS. GARY L. JONES, ASSOCIATE DIRECTOR, ENERGY, RESOURCES,
AND SCIENCE ISSUES, RESOURCES, COMMUNITY, AND ECONOMIC DEVELOPMENT
DIVISION, GENERAL ACCOUNTING OFFICE
Mr. Chairman and members of the subcommittee: We are pleased to be
here today to discuss the Nuclear Regulatory Commission's (NRC) move
from its regulatory approach which was largely developed without the
benefit of quantitative estimates of risk, to an approach--termed risk-
informed regulation--that considers relative risk in conjunction with
engineering analyses and operating experience.\1\ Our testimony
addresses (1) the views of NRC staff (based on our survey that was
reported to you in January) on the quality of the work NRC performs,\2\
NRC's management of and the staff's involvement in changes occurring in
the agency, and the move to a risk-informed regulatory approach; and
(2) the status of NRC's efforts to develop a comprehensive strategy to
implement a risk-informed regulatory approach.
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\1\ NRC differentiates between ``risk-informed'' and ``risk-based''
regulation, noting that the latter approach relies solely on the
numerical results of risk assessments. NRC does not endorse a risk-
based approach.
\2\ To obtain a diversity of views, we surveyed 1,581 NRC staff;
1,076, or 68 percent, responded. See: Nuclear Regulation: NRC Staff
Have Not Fully Accepted Planned Changes (GAO/RCED-00-29, Jan. 19,
2000).
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In addition, you asked us to provide information based on past
reports on the disagreement between NRC and the Environmental
Protection Agency (EPA) on radiation standards.\3\ EPA is responsible
for setting radiation limits outside the boundaries of nuclear
facilities and for establishing residual radiation standards for the
amount of radioactivity that can safely remain at a nuclear power plant
site and still not pose a threat to public health and safety and the
environment. In addition, the Energy Policy Act of 1992 directed EPA to
develop environmental protection standards for the Department of
Energy's (DOE) proposed high-level nuclear waste repository at Yucca
Mountain, Nevada.
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\3\ Nuclear Regulation: Better Oversight Needed to Ensure
Accumulation of Funds to Decommission Nuclear Power Plants (GAO/RCED-
99-75, May 3, 1999) and Nuclear Health and Safety Consensus on
Acceptable Radiation Risk to the Public Is Lacking (GAO/RCED-94-190,
Sept. 19, 1994).
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In summary, we found the following:
Although our survey results showed that the vast majority
of NRC staff feel their work contributes to protecting public health
and safety, their views on NRC's efforts to change its regulatory
approach were less favorable. For example, less than one-quarter of the
staff believe that senior management is receptive to suggestions for
change made by the staff. While almost half of the staff who responded
to the survey said that the change to risk-informed regulation has had
a positive effect on nuclear safety, only about one-fourth believe that
NRC staff have ``bought in to'' the process. Relatedly, many staff
expressed concern about a central element of risk-
informed regulation--the new risk-informed process for assessing the
performance of nuclear power plants. Sixty percent of the staff who
responded to questions about this oversight process believe that it
will reduce the margins of safety at nuclear power plants. Our findings
are similar to the results of an NRC survey, which found that 70
percent of its staff who expressed an opinion do not believe that the
new oversight process will allow for the identification of declining
safety performance. Based on the results of the NRC survey and input
from stakeholders, NRC has made some changes to the new oversight
process in anticipation of its implementation in April 2000.
NRC staff expect to provide the Commission with a draft
comprehensive strategy, which NRC is calling an Implementation Plan,
for moving to a risk-informed regulatory approach in March 2000. NRC
will then seek public comments on the plan, and it may then take
another year to put it in place. The outline of the draft
implementation plan that was provided to the Commission in January 2000
touched on the elements we recommended be included in a strategy for
moving to a risk-informed regulatory approach in our March 1999 report.
Disagreement between NRC and EPA over appropriate
standards for regulating radiation levels at nuclear facilities could
impact the costs to decommission nuclear power plants (dismantle them
and dispose of their wastes) and develop a proposed repository for the
plants' high-level waste at Yucca Mountain, Nevada. Although EPA has
authority to establish a standard for residual radiation at nuclear
power plants that have been decommissioned, it has not done so.
Utilities are using a standard developed by NRC that EPA believes is
not restrictive enough. Utilities are concerned that they may
ultimately have to use a more restrictive EPA standard, which would
increase their decommissioning costs. EPA has proposed a radiation
standard to protect public health and safety at the proposed nuclear
waste repository, as it was required to do in 1992. However, NRC, the
Nuclear Energy Institute (NEI), a board of the National Academy of
Sciences, and others have raised concerns.\4\ The Academy, for example,
stated that the proposed standard may have a negligible impact on the
protection of the public and could complicate the licensing of the
facility.
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\4\ NEI includes members from all utilities licensed to operate
commercial nuclear plants in the United States, as well as nuclear
plant designers, major architectural/engineering firms, fuel
fabrication facilities, materials licensees, and other organizations
and individuals involved in the nuclear energy industry. NEI
establishes unified policy for the nuclear industry on such matters as
generic operational and technical issues.
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BACKGROUND
NRC has been incorporating risk into the regulatory process for
many years and, in August 1995, it issued a policy statement that
advocated certain changes in the development and implementation of its
regulations for commercial nuclear plants through a risk-informed
approach. Under such an approach, NRC and the utilities would give more
emphasis to those structures, systems, and components deemed more
significant to safety. To respond to past criticisms about the lack of
a consistent, objective, and transparent method to assess the overall
performance of nuclear power plants, in January 1999, NRC proposed a
new risk-informed oversight process. Within the new oversight process,
NRC developed a new inspection program, developed performance
indicators, and established clearly defined, objective thresholds for
making decisions about a plant's performance. NRC tested the new
oversight process at 13 plants between May and November 1999 and
expects to implement it industrywide in April 2000.
NRC has also been examining various approaches to consider risk for
other regulatory activities. This includes overseeing facilities that
produce fuel for nuclear power plants; entities that use nuclear
materials in medical, academic, and industrial applications (materials
licensees); and DOE's proposed high-level nuclear waste repository in
Yucca Mountain, Nevada.
STAFF SAY THEY ARE COMMITTED TO SAFETY BUT ARE CONCERNED ABOUT THEIR
LIMITED INVOLVEMENT IN CHANGES AT THE AGENCY
Although our survey showed that the vast majority of NRC staff feel
their work contributes to protecting public health and safety, their
views on NRC's efforts to change its regulatory approach were less
favorable. In particular, the staff had concerns about management and
their involvement in change, the move to risk-informed regulation, and
the new nuclear power plant oversight process.
Staff Are Concerned About Management of and Their Involvement in Change
Our survey results suggest that senior management may not be
providing the leadership necessary to facilitate change and that staff
believe they have not been involved in many of NRC's recent
initiatives.\5\ As might be expected, the survey results for some
questions showed statistically significant differences between the
views of management and staff with management's views being
significantly more positive.\6\ For example, 46 percent of the NRC
managers who responded agree or strongly agree that senior management
is receptive to suggestions for change, compared with 23 percent of the
staff who agree or strongly agree. Similarly, 34 percent of the NRC
managers agree or strongly agree that senior management solicits ideas
and opinions from staff before making changes that affect their work
compared with 17 percent of the staff.
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\5\ For the purpose of the survey, senior management referred to
manages at the Deputy Office Director/Deputy Regional Administrator
level and above, including the Chairman, Commissioners, and Executive
Council, and mid-level management refers to section chiefs, team
leaders, assistant branch chiefs, branch chiefs, and deputy and
division directors.
\6\ The percentage of management agreeing with the statement is
significantly different from the percentage of staff at p < 05. This
means that 95 times out of 100, a difference this large would not occur
by chance.
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The results of our survey are consistent with those of a survey
conducted in the latter part of 1998 by NRC's Office of Inspector
General on the agency's safety culture and climate. The Inspector
General noted that the issue of management trust was of particular
concern to NRC staff. The results of the Inspector General's survey
showed that NRC staff did not believe that higher management levels
trusted their judgment and that 53 percent of the staff did not believe
that the management style at NRC encourages them to give their best.
More recently, the Inspector General reported that the large number of
staff who work within the offices of the Chairman and the Commissioners
can be viewed as a lack of reliance on and trust of the agency's staff
by senior management.\7\ In addition, in October 1999, Arthur Andersen
and Company reported that leaders across NRC work more as a group of
individuals than as a team.
---------------------------------------------------------------------------
\7\ Special Evaluation of the Role and Structure of the NRC's
Commission (OIG/99E-09, Dec. 23, 1999).
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NRC Staff Have Mixed Views on Risk-Informed Regulation
Our survey results also showed that staff had mixed views about
NRC's move to risk-informed regulation. Although 48 percent believe
that risk-informed regulation has had a positive effect on nuclear
safety, about 20 percent believe it has had a mostly negative effect.
In addition, only 27 percent of the staff agree or strongly agree that
the new risk-informed approach has been accepted by NRC staff. NRC
managers said that these data are not surprising. They said that staff
will be skeptical about moving to a risk-informed approach until they
see how the approach is implemented.
NRC Staff Are Skeptical About the New Oversight Process
Of the NRC staff who answered questions about a central aspect of
risk-informed regulation--the development and implementation of the
process for overseeing safety at nuclear power plants--\8\ our survey
results show that:
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\8\ About 33 percent of the NRC staff who responded to the survey
neither agreed nor disagreed, did not know or had no basis to judge, or
provided no answer to the questions.
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75 percent agree or strongly agree that utilities and
industry groups had too much input/influence in developing the process,
60 percent agree or strongly agree that the process will
reduce safety margins, and
86 percent agree or strongly agree that as time passes,
subjectivity will creep into the process.
According to NRC managers, the agency has recognized these
potential problems, has monitored them during the pilot project at 13
plants, and will consider them as it develops the final oversight
process. NRC also said that the survey results reflect the staff's
knowledge and views at a particular point in time; but as the new
process continues to develop and more staff receive training, the
agency expects an increase in the staff's level of knowledge and
confidence about the new oversight process.
We agree with NRC that our survey results reflect the staff's
knowledge and views at a particular point in time. More recently,
however, NRC surveyed 94 regional office staff, including inspectors
and others who participated in the new oversight process pilot project,
which ended in November 1999. NRC found that less than half agree or
strongly agree that the new oversight process provides adequate
assurance that plants are being operated safely and about half agree or
strongly agree that the new inspection program will appropriately
identify risk-significant issues. NRC also found that:
36 percent agree or strongly agree that the new process
provides sufficient regulatory attention to licensees with performance
problems,
31 percent agree or strongly agree that the new inspection
report format adequately communicates relevant information to the
licensee and public, and
19 percent agree or strongly agree that the new process
allows for the identification of declining performance before safety
margins are significantly reduced.
In addition to the issues NRC identified through the pilot project,
NEI, utility and state officials, and representatives of public
interest groups identified 27 issues they believed should be resolved
before NRC implements the new process in April 2000. The issues,
identified during a recent workshop on the oversight process, included
the need for guidance for NRC staff and the industry on the enforcement
actions that NRC would take when utilities report inaccurate plant
performance data and inspection issues that cut across all aspects of
plant operations (like human performance). The need for performance
indicators for the security of nuclear power plants were also
identified. The workshop participants identified another 22 issues that
NRC should resolve during or after the first year of implementing the
new process.
Despite these unresolved issues, NRC staff, NEI officials, and
other stakeholders, such as the Union of Concerned Scientists, believe
that the new oversight process provides a more objective and clear
approach that is fundamentally more sound and will produce better
overall results than NRC's prior process to assess overall plant
performance. However, dig the pilot project at 13 plants, NRC found
that about 99 percent--or nearly all--of the performance indicators
were acceptable and only three inspection findings were not. Two
members of NRC's Advisory Committee on Reactor Safeguards, reacting to
this information, believe that the performance indicators are not
sensitive enough to identify degrading plant performance.\9\ In
addition, 70 percent of the NRC staff who provided opinions to an
agency survey indicated that the new process will not allow for the
identification of declining safety performance. When taken together,
the question arises: How good is a process that tells NRC, the utility,
and the public that overall plant performance is acceptable but cannot
tell NRC when performance starts to decline? This overall question was
raised by some members of the Advisory Committee on Reactor Safeguards
at a recent meeting with NRC staff. In responding to the Advisory
Committee, NRC staff said that the oversight process is not ``set in
stone''; and will continue to evolve during its initial implementation.
NRC staff expect to evaluate the process by June 2001 and provide the
Commission with recommendations to improve it.
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\9\ The Advisory Committee on Reactor Safeguards is a statutory
committee established to advise the Commission on safety aspects of
proposed and existing nuclear facilities, as well as to perform other
duties as the Commission may request.
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NRC Is Developing a Strategy to Implement a Risk-Informed Regulatory
Approach
NRC agreed with the recommendation in our March 1999 report on
risk-informed regulation that it should develop a comprehensive
strategy to implement a risk-
informed regulatory approach. The staff expect to have a draft strategy
for the Commission's consideration by March 10, 2000. However, NRC will
not finalize the strategy until it obtains and addresses public
comments on it, which could take another year. NRC staff did provide
the Commission with a memorandum on January 13, 2000, describing their
proposal for the development of a comprehensive risk-
informed strategy. The outline mentions many of the issues that we
raised in previous reports and testimony--it discusses the need for
goals, objectives, performance measures, timelines, and training for
staff. NRC staff and other stakeholders, including NEI and the Union of
Concerned Scientists, will meet with the Commission at the end of this
month to provide their views on the draft strategy.
NRC and EPA Disagree on Radiation Standards
NRC and EPA disagree on the level of residual radiation that can
safely remain at a nuclear power plant site after utilities complete
their decommissioning. EPA has authority for establishing radiation
standards for all aspects of decommissioning, including acceptable
levels of residual radiation. To date, EPA has not issued such
standards. In the absence of EPA's standards, in 1997, NRC issued
standards that utilities must meet to decommission nuclear plant sites
and terminate their NRC licenses.
We previously reported that EPA does not agree with NRC's residual
radiation standard.\10\ NRC's standard sets a dose limit of no more
than 25 millirem per year from all sources, including groundwater.\11\
To put this standard in perspective, the average level of natural
background radiation in the United States is about 300 millirem per
year. In fact, the disagreement between the two agencies has been
characterized by both its length and its acrimony. EPA started to
develop residual radiation standards in 1984 but has not yet finalized
them. Nevertheless, EPA's position is that NRC's licensees should be
required to decontaminate nuclear plant sites to a level of 15
millirems of residual radioactivity per year and to clean up
groundwater to the same limit as drinking water standards. EPA's
Administrator has stated that the agency may apply the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 to
sites that have been or are being decommissioned if NRC and EPA do not
reach an agreement on the applicable standards.
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\10\ Nuclear Regulation: Better Oversight Needed to Ensure
Accumulation of Funds to Decommission Nuclear Power Plants (GAO/RCE-99-
75, May 3, 1999).
\11\ Rem is a unit of measurement of the effect of radiation doses
to human beings. A millirem is one thousandth of a rem.
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Currently, NRC's licensees are using NRC's regulations and related
guidance to plan for or to decommission their nuclear power plants and
related facilities. However, if NRC's licensees are ultimately required
to comply with the stricter EPA standards, they may have to perform
additional cleanup activities and incur additional costs. Neither NRC
staff nor EPA officials could estimate the amount of additional cost,
but both said it could be very high. To ensure that NRC's licensees do
not face dual regulation, in 1999, the House Appropriations Committee
strongly encouraged EPA and NRC to adopt a memorandum of understanding,
which is being developed, to clarify EPA's involvement at NRC sites and
to report to the Committees on Appropriations by May 2000 on their
progress. Although the nuclear industry was encouraged by the directive
to resolve the stalemate through a memorandum of understanding, NEI has
said that the industry is uncertain given EPA's history whether the
memorandum will be completed and/or resolve the problem. NEI also
stated that the Congress may need to intervene to resolve the conflict
between the two agencies.
NRC and EPA also disagree on the radiation standards that would
apply to DOE's high-level waste repository at Yucca Mountain, Nevada.
The Nuclear Waste Policy Act of 1982 made NRC responsible for licensing
the construction and operation of DOE's repository for high-level
radioactive waste on the basis of general environmental standards to be
issued by EPA. The Nuclear Waste Policy Amendments Act of 1987 directed
DOE to investigate a site at Yucca Mountain, Nevada; and the Energy
Policy Act of 1992 directed EPA to develop a specific health standard
for the Yucca Mountain site. In August 1999, EPA issued a proposed rule
in the Federal Register on the environmental radiation protection
standards for Yucca Mountain. In the standards, EPA proposes that DOE
not only limit exposure to an individual from radioactive material to
15 millirems per year from all sources but also protect groundwater to
drinking water standards. In commenting on EPA's proposal, NRC noted
that EPA has not demonstrated a need for a separate groundwater limit
or that the 15 millirems limit was necessary to protect public health
and safety and the environment.
NRC is not alone in its objection to EPA's proposed requirement for
a separate groundwater standard--NEI, the National Academy of Sciences,
and others have also raised concerns. For example, NEI noted that far
from enhancing public health and safety, a separate EPA groundwater
standard could result in a repository design that is actually less
protective of public health and safety. NEI noted that meeting a
separate groundwater standard would require smaller waste containers in
more tunnels, spread over a larger area which would require more
ventilation systems. NEI said that a larger, more open repository would
release more naturally occurring radon during excavation and the
repository's operations, thereby increasing the total radiation dose.
Likewise, the National Academy of Sciences' Board of Radioactive Waste
Management commented that the separate groundwater standard appears to
duplicate the protection provided by the 15-millirem-per-year standard.
The Academy also said that a separate groundwater limit may greatly
complicate the licensing process and have a negligible impact on the
protection of the public. It further noted that the Academy does not
believe that a scientific basis exists for establishing a separate
limit.
Mr. Chairman and members of the subcommittee, this concludes our
statement. We would be pleased to respond to any questions you may
have.
__________
STATEMENT OF DAVID E. ADELMAN, PROJECT ATTORNEY, NUCLEAR PROGRAM,
NATURAL RESOURCES DEFENSE COUNCIL, INC.
Good morning Mr. Chairman and members of the subcommittee. My name
is David Adelman and I am project attorney with the Natural Resources
Defense Council (``NRDC''). Thank you for allowing me to address the
issues related to the Nuclear Regulatory Commission's proposed rule on
the unrestricted release and recycling of radioactively contaminated
materials.
NRDC opposes the Nuclear Regulatory Commission's (``NRC'') proposed
rule that would permit the unrestricted release of radioactively
contaminated materials for use in such things as home appliances, cars,
and other consumer products, and that would expose unprotected workers
processing contaminated materials at scrap mills to potentially
significant levels of radiation. NRDC has fundamental concerns about
whether such standards can be implemented safely particularly in light
of the revelations surrounding the Department of Energy's (``DOE'')
Paducah, Kentucky, facility, improper releases of radioactively
contaminated materials from DOE's Santa Susana facility in California,
and continuing environmental and radiation safety management problems
at both private and government facilities generally. Further, NRDC has
serious questions about the uncertainties in the estimates of the risks
of recycling radioactively contaminated materials to workers and the
public. For these reasons, NRDC opposes the NRC's proposed rule and the
NRC's current practice of allowing unrestricted releases on a case-by-
case basis until these uncertainties are resolved and the NRC has
obtained general public acceptance that radioactively contaminated
materials can be recycled safely.
NRDC is a national non-profit membership environmental organization
with offices in Washington, D.C., New York City, San Francisco and Los
Angeles. NRDC has a nationwide membership of over 400,000 individuals.
As you may be aware, NRDC's activities include maintaining and
enhancing environmental quality and monitoring federal agency actions
to ensure that federal statutes enacted to protect human health and the
environment are fully and properly implemented. Since its inception in
1970, NRDC has sought to improve the environmental, health, and safety
conditions at and surrounding nuclear facilities operated by the DOE
and commercial nuclear facilities licensed by the NRC and their
predecessor agencies.
I. THE NRC RULE REPRESENTS A DRAMATIC CHANGE IN POLICY TOWARDS
DEREGULATION OF RADIOACTIVELY CONTAMINATED MATERIALS
In March 1965, the NRC established ``Criteria for the approval of
products intended for use by the general public.'' 30 Fed. Reg. 3462-
63. The NRC notice sets forth its policy for products containing
radioactive substances intended for use by the general public without
any regulatory controls on the consumer-user. Approval depended upon a
product being unlikely to expose individuals to more than a few
hundredths of the NRC dose limits and the radioactive components having
utility. The NRC noted specifically that it ``considers that the use of
radioactive material in toys, novelties, and adornments may be of
marginal benefit. . . . Applications for approval of ` off-the-shelf '
items that are subject to mishandling especially by children will be
approved only if they are found to combine an unusual degree of utility
and safety.'' 30 Fed. Reg. 3462 (March 16, 1965). For many years, NRC
has acknowledged the complexity and risks of permitting consumer
products to contain radioactive substances.
In 1986 and 1990, the NRC proposed policies on radiation levels
that would be considered ``below regulatory concern'' (``BRC''). The
1990 policy would have permitted the deregulation of certain
radioactive wastes, materials, and emissions. In the early 1990's the
public, states, and Congress rejected the NRC's BRC effort to
deregulate contaminated scrap metals and other materials for
unrestricted recycling. The NRC's BRC policy was formally revoked by
Congress in the Energy Policy Act of 1992, and the NRC rescinded both
policies soon after. In part because of the NRC's deregulation efforts,
at least sixteen states have passed regulations or laws that are
stricter than the federally proposed allowable releases, most with the
intent to continue regulatory control if the federal government allows
deregulation. The present rulemaking represents yet another attempt by
NRC to modify its regulation of regulated materials by establishing
broad-based deregulation standards for radioactively contaminated
materials.
Until recently, DOE has also had a policy that generally precluded
the release of radioactively contaminated materials for unrestricted
and unregulated sale in U.S. markets. It was not until former Assistant
Secretary of Environmental Management Al Alm issued a policy statement
in September 1996 promoting, on a provisional basis, recycling of
radioactively contaminated scrap steel that DOE formally altered its
long-standing policy disfavoring unrestricted release of contaminated
materials although, this policy originally focused narrowly on
restricted end uses of recycled steel at DOE facilities. Further, DOE's
policy is being implemented on a conditional basis while DOE evaluates
the safety and economics of recycling these materials. However, in
response to strong public- and private-sector opposition, Secretary
Bill Richardson recently blocked further releases of ``volumetrically''
contaminated metal, but not surface-contaminated metals, from DOE
facilities until the NRC resolves whether to proceed with a free-
release standard.
Accordingly, although recycling of radioactively contaminated
materials has been considered by both the NRC and DOE, and permitted on
a small scale by both agencies, the proposed NRC rulemaking represents
a major change in policy towards deregulation, which has consistently
received substantial public opposition. At the same time, unprecedented
quantities of radioactively contaminated materials, such as scrap
metals and concrete, are becoming available from the decommissioning of
NRC-licensed and DOE facilities. Estimates by the Environmental
Protection Agency (``EPA'') indicate that more than 1.5 million tons of
radioactively contaminated metals alone may become available for
recycling, most of which would come from DOE sites.
II. THE NRC AND DOE LACK CREDIBILITY WITH THE AMERICAN PUBLIC
Public concern about radioactively contaminated materials remains
high because of DOE's history of regulatory mismanagement, the
technical challenges, and the direct impacts recycling radioactive
materials will have on consumer products. Moreover, these concerns have
been significantly heightened since the public learned that the major
NRC contractor responsible for the technical evaluation of possible
standards, Science Applications International Corporation (``SAIC''),
is at the same time working directly for BNFL, Inc. the DOE contractor
that is undertaking the first large-scale recycling of radioactively
contaminated metals on regulatory compliance issues. This direct
conflict of interest has seriously undermined public confidence in the
objectivity of the NRC's proposed rulemaking and caused the NRC to
initiate an investigation of SAIC and its other contractors on this and
other potential conflicts of interest.
NRC therefore must convince a very wary public that it can
implement a rule safely, that the underlying science is sound and
untainted, and that deregulation is not simply a means of externalizing
the decommissioning costs of NRC-licensed and DOE facilities onto the
public by recycling radioactive waste into consumer products.
Otherwise, the NRC risks creating the backlash it experienced in 1992
when it attempted to deregulate and causing potentially significant
economic harm to the recycling industry, particularly for scrap metals,
by burdening it with radioactive wastes that undermine public
confidence in recycled products. As the National Research Council
(``Council'') concluded in a 1996 DOE-commissioned report, public
acceptance and understanding are essential.
The 1996 Council study concerned the decommissioning of the DOE's
three gaseous diffusion plants. The report included extended analysis
of recycling options for the large quantities of scrap metal that would
be generated in the decommissioning process. The Council's report
included the following recommendations and findings:
If recycling of scrap metal were to proceed, promulgation
of credible national standards for the unrestricted release of
radioactively contaminated materials is a necessary prerequisite.
It is essential that a meaningful stakeholder and public
involvement process be implemented before recycling of any
radioactively contaminated materials occurs.
Recycling of contaminated materials could cause
significant health risks to workers and the public.
Great care must be taken to ensure that releases of
contaminated steel does not increase residual radioactivity in the
nation's steel supply to an unacceptable level, particularly because
increases in contaminants have been observed in the past.
Despite the absence of accepted standards and any meaningful public
involvement, the DOE is proceeding with the first large-scale recycling
of contaminated scrap metal at the Oak Ridge K-25 gaseous diffusion
plant. In a legal challenge to the DOE's failure to complete an
environmental impact statement for the project, federal district court
judge Gladys Kessler found:
that the potential for environmental harm from the Oak
Ridge project is great, especially given the unprecedented amount of
hazardous materials that would be recycled;
that DOE should have prepared an environmental impact
statement for the Oak Ridge radioactive metals recycling project; and
that it was ``startling and worrisome'' that, from an
early point on, there was no opportunity for public scrutiny or input
on a project of such grave importance.
In addition to the problems identified by Judge Kessler, it appears
that under the NRC's regulations the project is proceeding without a
valid license. Tennessee lacks the regulatory authority to grant a
licensee where radioactively contaminated materials are recycled for
use in consumer products. See 10 C.F.R. Parts 30 and 40 and 10 C.F.R.
150.15(a)(6).
The NRC nonetheless supports the Oak Ridge project despite these
deficiencies and the present rulemaking it is considering. Moreover,
the Oak Ridge project is qualitatively different from prior, more-
limited releases because of its scale approximately 100,000 tons of
scrap metal will be recycled and the types of contaminated materials.
The DOE's decision to proceed with the Oak Ridge project, and the NRC's
support of it, have further compromised the credibility of the NRC's
public participation process. With the Oak Ridge project proceeding
under NRC's blessing, public stakeholders question whether a standard
is predetermined and whether the proposed NRC rulemaking will fully and
fairly consider all of the alternatives, including halting all releases
of radioactively contaminated materials. NRDC firmly believes,
consistent with the Council's report, that NRC should cease licensing
unrestricted releases of radioactively contaminated materials until it
resolves these issues and that DOE should also halt all unrestricted
releases of radioactive materials from its facilities.
III. THE NRC'S PROPOSED RULEMAKING RAISES SERIOUS IMPLEMENTATION
PROBLEMS
1. The Total Quantity of Radioactively Contaminated Materials to be
Released for Use in Commercial Products is Unknown
According to Environmental Protection Agency (``EPA'') estimates,
NRC-licensed facilities contain about 650,000 metric tonnes of scrap
metal that could be recycled (~80% carbon steel; ~20% stainless steel);
however, EPA's upper bound on this estimate is about twice this value.
EPA estimates that DOE facilities currently store bout 171,000 metric
tonnes of scrap metal; although, the upper bound on this estimate is
about twice this value. Decommissioning of DOE facilities according to
EPA will generate approximately another 925,000 tonnes (~85% carbon
steel; ~15% equally divided between copper, aluminum, and stainless
steel), but the actual quantity could be several times higher than this
value. There are no estimates of the total quantities of other
radioactive materials (e.g., concrete, soil, industrial wastes) that
could be deregulated.
Because of these uncertainties, it is unclear how the NRC can
reasonably evaluate the human health impacts of its standard. It is
essential that the NRC clearly explain how it plans to estimate, in a
scientifically sound manner, the total quantity of radioactively
contaminated materials to which the public could be exposed,
particularly because some radioactive contaminants remain hazardous for
many thousands of years. Indeed, several radionuclides such as
technetium and uranium have extremely long half-lives, which adds
another layer of complexity to NRC's assessment of the aggregate amount
of radioactively contaminated materials that will be in commerce at any
given time.
The NRC claims that the risks from contaminated metals are limited
because contaminated scrap metal will make up less than one percent of
the scrap metal being processed in any given year, which would reduce
their potential risks. However, this estimate does not take into
account scrap mills, particularly mini-mills, that may receive a
disproportionate amount of radioactively contaminated metal. At these
facilities, recycled metal could be released without being mixed with
any clean metal. Under these circumstances, the NRC's claims of
significant dilution are merely hypothetical. As in the prior EPA
study, the risks from contaminated materials must be evaluated assuming
no dilution.
Similarly, because of public concern about aggregate effects of
radiation from contaminated materials, it is essential that the NRC
provide information on and estimates of exposures from multiple
pathways--under its current analysis the NRC limits its evaluation to
certain exposure scenarios without providing adequate information on
the broader context of potential exposures. Only with this information
will the public be able to assess the relative contributions from
different sources and pathways, e.g., the impact of technetium-99
contamination in consumer products relative to that of cobalt-60 or
what pathways are most important for each radionuclide. This
information should be tabulated and presented in several examples
illustrating the effects of different radionuclides in specific
circumstances.
Finally, the NRC limits its analysis to the average member of each
critical group, i.e., the group of individuals expected to receive the
greatest exposure to each radionuclide. In EPA's earlier study, its
risk analyses were based on the ``reasonably maximally exposed
individual'' (``RMEI'') for standard setting, which does not entail the
same kind of averaging employed in the NRC analysis. The NRC should use
the more conservative RMEI in its risk assessments; although, a
comparison of the normalized dose factors calculated using average
critical group member with those derived using the RMEI would also be
informative. And the NRC should not limit itself to assessing excess
cancer deaths; in particular, it should evaluate the unique risks posed
to children and teratogenic effects.
2. Surveying and Monitoring for Radioactive Contamination is both
Technically Challenging and Costly
Survey measurements for radioactive contamination are difficult and
challenging where large, complicated pieces of equipment, such as that
found at DOE and NRC facilities, are involved. Problems that can
undermine effective surveying include the following:
Complex geometries with difficult to reach surfaces are
challenging to measure accurately, and workers will tend to avoid these
measurement areas.
Large errors can be introduced into measurements of
volumetric contamination if the contaminant concentration is not
uniform or if the geometry of the contaminated piece is complicated.
Even where measurements are straightforward, the accuracy
of the measurements is limited by the presence of unavoidable
background radiation.
Typical measurement uncertainties, even for the most favorable
geometries, are likely to be several percent; more complex geometries
will result in greater measurement uncertainty. In its study, EPA
acknowledges that current detection instruments may not be sensitive
enough to detect contamination reliably under a 1 mrem/y standard,
which is a ``reasonable'' level often quoted by regulators. For example
Cobalt-60, a major contaminant in materials at NRC-licensed facilities
and an important radionuclide in risk assessments, could be difficult
to detect under a 1 mrem/y standard. If a standard is set, the NRC must
be able to demonstrate that the available detection equipment can
reliably survey materials to satisfy its standard. Conversely, if NRC
identifies an acceptable standard but adequate detection equipment is
not available for certain radionuclides, unrestricted release of
materials contaminated with those radionuclides should be prohibited.
These technical constraints raise several basic issues:
It is unclear whether the detection equipment available
can protect the public against improper releases of radioactively
contaminated materials if a stringent standard were set.
No data have been provided estimating the rate of
potential false negatives (measurements that incorrectly find that a
piece of equipment is not contaminated).
NRC has not conducted any assessments of the potential
impacts of improper releases on workers or the public.
NRC has not demonstrated that surveying can be conducted
adequately for the large quantities of scrap metal available for
recycling at NRC-licensed and DOE facilities.
3. Risks Posed by the Different Radiological Contaminants Could Impede
Reliable Implementation of a General Standard
Several factors influence the threat posed by a given radioactive
element:
(1) whether the radionuclide remains in the recycled material or
partitions into a byproduct of the recycling process (e.g., for metals
it can partition into the metal product, slag, or baghouse dust);
(2) the type of radiation the radionuclide emits (i.e., alpha,
beta, gamma);
(3) the residence time of the radionuclide in an individual once it
is ingested; and
(4) the length of the radionuclide's half-life.
For example, some radionuclides like uranium-238, plutonium-239,
neptunium-237, and technetium-99 are extremely long lived, some have
long residence times like plutonium and neptunium, and some partition
almost exclusively into the recycled metal, such as technetium and
cobalt.
These different characteristics mean that radionuclides present
substantially different risks to workers and the public and present
different challenges from a regulatory perspective. For example,
radionuclides that partition exclusively into the slag that is
generated during recycling are less likely to pose a significant threat
to the public through commercial products, but pose potentially
significant risks to workers. Establishing an across-the-board rule
under these circumstances raises the potential for substantial
regulatory problems and could undermine safe implementation of a
standard. Factors that differentiate radionuclides from a standard-
setting perspective include uncertainties in estimates underlying risk
assessments, types of risks, likelihood of improper releases
(violations), and level of public concern. For example, more uncertain
risks should lead to more conservative standards or rejection of a
standard altogether. Similarly, the degree to which future uses are
foreseeable should factor into this analysis.
For radionuclides that partition into the recycled material, NRC
must be particularly vigilant in ascertaining the potential uses and
risks posed by the residual radioactive contaminants. Where these risks
cannot be reliably calculated, the scrap materials should not be
recycled for unrestricted use. The NRC bears the burden of
demonstrating the safety of its rule under real-world conditions.
In addition, where radionuclides partition into recycling byproduct
materials, such as metal slag produced during smelting, the NRC must
evaluate requiring proper disposal of such materials at regulated
facilities under ``as low as reasonably achievable'' (``ALARA''). This
applies particularly to metal slag--which is sold for, among other
things, soil conditioning and ice control--because it is of low
economic value and certain long-lived radionuclides concentrate in it
during the melting process.
4. The Economics of Radioactive Materials Recycling Will Undermine Safe
Implementation of a Standard
Except in the case of nickel, and to a lesser extent copper, the
primary economic gain from recycling scrap metal and other
radioactively contaminated materials derives from avoiding disposal
costs. This means that from an economic perspective there is little
difference between limiting standards to restricted releases, such use
solely within DOE or NRC-licensed facilities, versus permitting
unrestricted recycling of such materials.
However, the savings from avoiding disposal are often more than
offset by the costs of cleaning the materials to meet unrestricted
release standards and, to a lesser extent, costs from surveying the
materials for radioactive contaminants. Unless there are effective
regulatory oversight mechanisms and significant penalties for
regulatory violations, companies engaged in recycling will (1) maximize
the amount of material they release without cleaning it; and (2) seek
to limit survey costs. The economics of the radioactive recycling
therefore strongly favor lax implementation of surveying requirements
and compliance with release standards. Given the amount of material
potentially available, the economic incentives, the limits of survey
equipment, and the poor track record of the nuclear industry in
managing radioactive materials, issuing an NRC standard could result in
substantial quantities of material being released in violation of
whatever standard might be set.
As discussed above, the NRC must evaluate the potential impacts
from such improper releases and ensure that there are regulatory
mechanisms to protect the public against them. It is the practical
challenges of implementing a standard that represent the greatest
source of public concern, even if a safe standard, in principle, were
identified. Further, where the risks--particularly to workers--from
improper releases are particularly great, the NRC should limit the
scope of the permissible types of releases to foreclose the possibility
of serious or chronic risks to works and the public.
The NRC is required to ensure that all recycling is in compliance
with ALARA and to conduct an analysis in conformance with the ALARA
principle as part of any rulemaking. At minimum, the NRC must be
particularly diligent in conducting an ALARA analysis in circumstances
where the economics either make disposal marginally more expensive than
unrestricted release or where restricted release is an option. It is
therefore essential that the NRC include analyses of a variety of
circumstances under which recycling could occur to assess fully how
ALARA applies. Any such ALARA analysis should not be limited to a
global assessment, but include focused analyses of particular releases
under specific conditions.
IV. PUBLIC CONCERN AND THE LEGACY OF THE NUCLEAR INDUSTRY'S MANAGEMENT
OF RADIOACTIVE MATERIALS
In addition to the problems raised by the lack of public notice and
comment in the Oak Ridge project and the direct conflicts of interest
of the NRC's major contractor, the present rulemaking is being
developed in the context of decades of mismanagement of radioactive
wastes at DOE facilities. DOE mismanagement has caused incalculable
environmental harm, threatened the health, and in some cases lives, of
many DOE workers and U.S. citizens, and created an environmental
debacle that will cost more than $250 billion to remedy. Unfortunately,
these problems are not merely historical artifacts:
In 1994, the Conference of Radiation Control Program
Directors (``CRCPD'') found that ``[r]adioactive materials has been
tracked offsite, into homes, businesses, and elsewhere. . . . States
have surveyed people, homes, businesses, rental cars, and trucks.
Significant contamination events continue to occur at the DOE
facilities due to lack of adequate health physics for all its
operations.''
In 1999, the regulatory deficiencies identified by the
CRCPD were found at DOE's Paducah, Kentucky, plant, as well as evidence
that DOE contractors had illegally disposed of radioactive materials in
local sanitary landfills, at random sites in a local state wildlife
preserve, and through largely unmonitored on-site recycling operations.
Over the past year the Los Alamos, Livermore, and Savannah
River sites have been cited by DOE or the Defense Nuclear Safety Board
for regulatory compliance violations.
In January 2000 at DOE's Santa Susana Filed Laboratory
just outside Los Angeles, EPA discovered that DOE had illegally
released radioactively contaminated wastes for disposal at municipal
dumps, sold and recycled radioactively contaminated metals, and sent
contaminated trailers to local schools without even conducting adequate
monitoring.
In February 2000, a major radioactivity leak occurred at
Indian Point nuclear plant in New York.
These continuing problems undermine public confidence in either DOE's
or NRC's ability to ensure that radioactively contaminated materials
are managed safely. Moreover, in the wake of the Paducah findings, it
is disturbing to consider that the Oak Ridge field office, which also
has authority over the Paducah plant, is responsible for overseeing the
Oak Ridge radioactive metals recycling project. And it is completely
unreasonable to assert that the NRC's rulemaking will not cause DOE to
adopt a similar standard because Secretary Richardson has explicitly
linked the Energy Department's policy to the NRC's rule.
The NRC's proposed rulemaking will directly affect the ability of
DOE and its contractors to release radioactively contaminated
materials, which DOE has time and again failed to manage safely even in
fully a regulated environment. In the absence of significant changes
within DOE or, at the very least, independent regulatory mechanisms to
ensure that radioactive materials are properly managed by DOE, the
public has little reason to believe that free releases from DOE
facilities, which contain the bulk of the inventory, will occur without
serious adverse impacts. It is therefore essential that the NRC
consider the practical, technical, and administrative limitations of
the entities that will be responsible for releasing contaminated
materials into U.S. markets, and that it factor these constraints into
its decision on how to proceed.
In the absence of fundamental changes, the NRC should not proceed
with this rulemaking, and the NRC and DOE should impose a moratorium on
the unrestricted recycling and sale of radioactively contaminated
materials for use in, among other things, consumer products until these
issues are resolved and public confidence is restored.
__________
STATEMENT OF WILLIAM E. KENNEDY, JR., MEMBER OF THE BOARD OF DIRECTORS,
PRESIDENTIAL REPRESENTATIVE, HEALTH PHYSICS SOCIETY
INTRODUCTION
Mr. Chairman, Ranking Member Graham, and distinguished members of
the subcommittee, my name is William E. Kennedy, Jr. I am a member of
the Board of Directors of the Health Physics Society, an independent
non-profit scientific organization of professionals who specialize in
radiation safety. Health Physics Society President, Raymond H. Johnson,
Jr., has asked that I represent the Society today and wishes to thank
the committee for providing this opportunity for the Society to serve
as a resource on this matter. I am pleased to testify today on the
efforts of the Health Physics Society and the American National
Standards Institute (ANSI) to develop a formal consensus standard on
the release of contaminated materials, including metals, and to comment
on the current U.S. Nuclear Regulatory Commission's (NRC) rulemaking in
this area. In addition to being on the Board of Directors of the Health
Physics Society, I am past chairman of an ANSI Writing Group chartered
to develop a National Consensus Standard on Clearance, or the release
of materials from radiological controls. The final standard, titled
``Surface and Volume Radioactivity Standards for Clearance'' ANSI/HPS
N13.12-1999, was published in January of this year. Since 1986, I have
also served as a consultant to the International Atomic Energy Agency
(IAEA), an agency of the United Nations, to develop scientifically
based release criteria that will be applied to international commerce.
The Health Physics Society includes over 6,000 members in over 40
countries that are currently engaged in the practice, science, or
technology of radiation safety. Society activities include encouraging
research in radiation science, developing standards, and disseminating
radiation safety information. As a non-profit scientific organization,
we are not affiliated with any government, industrial, or private
entity. The Society is affiliated with the International Radiation
Protection Association, the American Academy of Health Physics, the
American Board of Health Physics, the National Academy of Sciences, the
National Council on Radiation Protection and Measurements, and other
Scientific and Professional Societies and Institutions. The Society is
in a unique position to provide informative, scientific positions that
are independent of both government and industry.
HEALTH PHYSICS SOCIETY POSITION
The Health Physics Society has taken a formal position on the
release of contaminated materials, including metals, in response to the
NRC's recent rulemaking process. I have included a copy of this
position statement at the end of my testimony for your information.
Based on this position statement it is my testimony to you today
that the Health Physics Society believes:
establishing uniform standard criteria for the clearance
or release of radioactively contaminated materials is a necessary and
important part of protecting the public and the environment from
radiation exposure
regulations for radiation protection should be based on
consensus standards. including those issued by ANSI and the Health
Physics Society. the primary radiation protection criterion should be a
dose standard and should consider all radiation pathways
the primary dose criterion should be related to screening
levels that can be used to establish radiation survey programs that
will ensure the dose level will be met, and
the ANSI Standard N13.12 should be adopted by U.S. Federal
Agencies for application to the clearance or release of materials from
radiological controls.
CLEARANCE CRITERIA WILL INCREASE RADIATION PROTECTION
The motive for establishing clearance criteria is not to produce
unnecessary sources of radiation, but rather to increase protection of
the public by establishing strict standards and guidelines to ensure
that harmful sources are controlled, while conserving our natural
resources.
BACKGROUND INFORMATION
The development and use of release criteria is not unique to
radiation and radioactive materials. For example, the Food and Drug
Administration sets acceptable levels of pesticides in foods and the
U.S. Environmental Protection Agency (EPA) sets contamination levels in
water and soil in the cleanup of land contaminated with hazardous
materials.
Comprehensive, unconditional release criteria for materials,
equipment, and facilities with low levels of radioactive contamination
have been needed in the United States for several decades. In addition
to invoking radiation protection requirements during facility
operation, release criteria would serve as the basis for deciding what
materials require disposal as radioactive waste.
In 1964, the Health Physics Society, under the auspices of ANSI,
began the technical evaluation of clearance, resulting in early drafts
of ANSI N13.12. These early drafts of the clearance standard were based
primarily on detection levels that could be achieved using field
instruments, with secondary concerns about the potential individual
doses that may result. An early draft version of ANSI N13.12 was
consistent with the surface contamination limits that were published by
the U.S. Atomic Energy Commission in the 1974 version of Regulatory
Guide 1.86, Termination of Operating Licenses for Nuclear Reactors,
which is still in use by the NRC today.
However, the criteria in Regulatory Guide 1.86 are not risk based,
and are not consistently applied across all situations. The current
rulemaking under consideration by the NRC addresses updating these
existing release criteria and the process used to make release
decisions.
ANSI STANDARD N13.12
The decision to continue efforts to develop an ANSI standard was
driven by the continuing need for comprehensive release criteria,
changing national and international guidance, and risk or dose based
regulations. In 1993, the Health Physics Society Standards Committee,
in agreement with ANSI Committee N13, established a technical writing
group to develop the final N13.12 clearance standard. The final
clearance standard was approved in August 1999 as N13.12, Surface and
Volume Radioactivity Standards for Clearance and was published in
January 2000.
The purpose of ANSI Standard N13.12 is to provide guidance for
protecting the public and the environment from radiation exposure. It
does this by specifying a primary radiation dose criterion and derived
screening levels for the clearance of items that could contain
radioactive materials. The standard sets a primary radiation dose
criterion of 1 millirem per year (mrem/y), and provides derived
screening levels that define the allowable amount of radioactivity per
unit surface area or per unit mass.
PERSPECTIVE ON THE ANSI N13.12 PRIMARY DOSE CRITERION
In our deliberations, the ANSI writing group considered
international dose criteria for release of materials. These dose
criteria have been defined by the IAEA and have been adopted by most
nations. They state that the dose rate to an individual in the
population expected to receive the highest dose from the released
material should not exceed 1 mrem/y, i.e., exactly the same criterion
contained in ANSI N13.12.
This primary dose criterion is a very low dose rate. Part of the
reason for selecting a dose rate so small was to ensure that members of
the public that may be exposed to multiple sources of radiation would
receive only a small fraction of the doses permitted by Federal
regulations. The 1 mrem/y dose rate is an even smaller fraction of the
doses they receive from background sources. For example, Americans
typically receive about 300 mrem/y from natural background sources,
including radon in their homes. The dose standard defined in ANSI
N13.12 is only 0.3% of the dose Americans normally receive from these
natural background sources. For perspective on the yearly dose in this
criterion, I would like to point out 1 mrem is about 20% of the dose I
will have received from cosmic rays at an altitude of about 35,000 feet
while flying to attend this hearing and returning home.
This 1 mrem/y dose rate is also considered to be a ``Negligible
Individual Dose'' by the Congressionally Chartered National Council on
Radiation Protection and Measurements. Materials that meet the ANSI
Standard N13.12 criteria are only slightly contaminated and should not
be confused with low-level radioactive waste.
Thus, there is a solid scientific basis and a good regulatory
rational associated with the dose criteria defined in ANSI N13. 12.
CURRENT ISSUES REGARDING THE NRC RULEMAKING
The focus of the current debate associated with the NRC rulemaking
is the recycle of contaminated metals, and fears that consumer products
will become contaminated to unacceptable levels. However, the subject
of clearance covers much more, including establishing uniform, dose-
based, radiation survey criteria. Currently, nuclear facilities
regulated by the NRC, States, or the DOE can release materials, on a
case-by-case basis, if no radiation can be detected using field
instruments. This practice does not imply that radioactive
contamination does not exist, only that none is ``detected.'' The
determination of what can be detected can vary from facility to
facility. By establishing clearance standards in the NRC regulations,
there will finally be uniform guidance in the United States on
acceptable detection levels that are, hopefully, consistent with those
recommended by the IAEA and accepted by the international community.
The existence and application of uniform monitoring and survey criteria
should reduce the potential for the unintentional release of
radioactive materials.
Recycling cleared metals would not mean the dilution of highly
contaminated metal with other metal in the industry. Rather, it would
mean the careful sorting of metals, using standard criteria, such that
no metals above the 1 mrem/y clearance criterion would find their way
into commerce. Metals containing levels above the standard could be
further decontaminated or sent for low-level radioactive waste disposal
if decontamination to the clearance criteria could not be achieved. The
credibility of the United States' radiation protection framework is at
stake since many other countries have already adopted uniform clearance
criteria that the U.S. currently does not have.
Industry standards, such as ANSI Standard N13.12, can play an
important role in the regulatory process. In fact, the White House
Office of Management and Budget (OMB) issued proposed revisions to
Circular A-119, Federal Participation in the Development and Use of
Voluntary Standards. These revisions are the outcome of the National
Technology Transfer Act of 1995 (Public Law 104-113) signed by the
President in March 1996. The law now requires federal agencies to use
voluntary, industry standards developed by the private sector whenever
possible. The purpose of this requirement is to eliminate excessive
costs to the government by developing its own standards. As a
recognized standards institute, standards developed under ANSI must be
considered. Agencies who choose not to use private-sector standards are
required to document their actions to the Secretary of Commerce. Thus,
ANSI Standard N13. 12 should play a key role in the development of
Federal regulations and policy regarding clearance.
CLOSING COMMENTS
Mr. Chairman, as I have outlined, the Health Physics Society
believes that it is important that clearance or release criteria for
low levels of radioactive materials be established to provide
consistency in radiation protection requirements, thereby increasing
protection of the public. The establishment of strict standards and
guidelines will ensure that potentially harmful sources are controlled,
while conserving our natural resources. We strongly support the
continuation of the NRC rulemaking in this area, and we encourage the
NRC to adopt the criteria outlined in ANSI Standard N13. 12.
__________
STATEMENT OF THE METALS INDUSTRY RECYCLING COALITION: AMERICAN IRON AND
STEEL INSTITUTE, AMERICAN ZINC ASSOCIATION, COPPER AND BRASS
FABRICATORS COUNCIL, NICKEL DEVELOPMENT INSTITUTE, SPECIALTY STEEL
INDUSTRY OF NORTH AMERICA, STEEL MANUFACTURERS ASSOCIATION
The Metals Industry Recycling Coalition (``MIRC'') is a coalition
of trade associations representing a broad spectrum of the metal
industries. MIRC is comprised of the American Iron and Steel Institute
(``AISI''), the American Zinc Association, the Copper and Brass
Fabricators Council (``CBFC''), the Nickel Development Institute
(``NiDI''), the Specialty Steel Industry of North America (``SSINA''),
and the Steel Manufacturers Association (``SMA''). The members of these
associations oppose the release of radioactively contaminated scrap
metal into the stream of commerce.
Recycling--The metal industries are among the nation's largest
recyclers. The free release of metal from nuclear facilities into the
stream of commerce would create serious problems for metal recyclers
and pose a significant threat to the high rate of recycling that metal
industries have worked so hard to achieve. The result could be a public
policy disaster.
Our Recommendation--Scrap metal originating from fuel cycle
facilities, i.e. nuclear power plants, licensed by the United States
Nuclear Regulatory Commission (``NRC''), and from facilities that are
or were formerly operated by the Department of Energy (``DOE'') should
not be released for unrestricted recycling or reuse as products in
commerce or for export. Much of this metal may be radioactively
contaminated.
Rather, NRC and DOE should adopt a policy of restricted release of
scrap metal from nuclear facilities. Restricted release should be
specifically limited to the following--provided that, in either case,
the scrap metal meets specified health-based standards at the point of
use or disposal:
(1) Recycling or recovery at a dedicated, licensed facility for use
only at an NRC-licensed fuel cycle facility or at nuclear facilities
operated by the DOE; or
(2) Disposal at either a licensed radioactive waste landfill or an
industrial or municipal landfill.
Until health-based standards and appropriate monitoring
requirements are developed through the rulemaking process, scrap metal
from nuclear facilities should not be released even on a restricted
basis. NRC and DOE must work together to ensure that the release
criteria and restrictions adopted by the two agencies are congruent.
The metals industries recognize that nuclear facilities have items
that were not used in a way that would cause them to become
contaminated. These items, such as cranes, metal desks, and filing
cabinets, should be released for re-use for their original purpose,
provided the items meet health-based standards when monitored according
to stringent monitoring requirements established through the rulemaking
process. They should not be released into the scrap supply, however.
Reasons: Consumer Perception.--The release of radioactively
contaminated scrap metal from nuclear facilities for unrestricted
recycling into industrial and consumer products could adversely affect
the marketability of metal products made from recycled scrap and, more
broadly, the marketability of all metal products. The public's
perception is that any level or type of radioactivity is unsafe,
official assurances to the contrary notwithstanding. Several media
reports have already generated public concern. Metal recycling
industries have worked hard to build public confidence in the safety
and utility of products made from recycled metal. This confidence would
be lost if the public, rightly or wrongly, perceives such products to
be unsafe. For this reason, metal companies have not, and will not,
accept scrap that is known or perceived to be radioactively
contaminated.
Economic Impact.--The presence of radioactive scrap in the stream
of commerce imposes enormous operating constraints on metal producers
who are trying to keep radioactivity out of their mills and out of
their products. At considerable expense, U.S. metal producers have
installed sophisticated radiation detectors to screen out the small
quantity of contaminated scrap metal that arrives at their mills. A
government policy under which radioactively contaminated metal could be
free released into the stream of commerce would greatly increase the
volume of radioactive scrap metal arriving at the gates of steel mills
and other metal melting facilities.
Currently, metal producers reject loads of scrap that trigger
radiation detectors, because of the potential consequences of melting
shielded sources of radioactivity. The unrestricted release of scrap
metal from nuclear fuel cycle and DOE-operated facilities, however,
would present a far more onerous problem, as scrap metal with slight
levels of surface or volumetric contamination can trigger the radiation
detectors at metal companies across the country, leading to increased
rates of scrap load rejections. This, in turn, would cause additional
problems for scrap suppliers and transporters who will have to manage
and arrange for the ultimate disposition of the rejected scrap.
Recycling Impact.--Currently, recycling is accurately perceived as
a social good and thus something to be encouraged. The unrestricted
release of radioactively contaminated scrap metal from nuclear
facilities for recycling would tarnish this perception. Aversion to
radioactive risk could lead consumers to avoid products made of metal,
especially those with a recycled metal content. The industry would lose
the public's trust in the integrity and safety of products made with
metal. Hence a regulatory program allowing unrestricted release of
scrap metal from nuclear facilities likely would lead to lower rates of
metal recycling, producing an adverse impact on the environment.
Conclusion.--Congress should not permit NRC to authorize the
unrestricted release of scrap metal from nuclear fuel cycle and DOE-
operated facilities into the stream of commerce. Rather, NRC should
establish scientifically sound, health-based standards for the
restricted release of such metal. This is the most economically and
environmentally sound solution. The metal industries cannot become a
dumping ground for the discards of the global nuclear age.
__________
CLEARANCE OF MATERIALS HAVING SURFACE OR INTERNAL RADIOACTIVITY
POSITION STATEMENT OF THE HEALTH PHYSICS SOCIETY
The Health Physics Society* welcomes the opportunity to participate
in the process initiated by the Nuclear Regulatory Commission for
development of standards for the clearance of materials having surface
or internal radioactivity. The Society believes that the definition of
clearance levels is an important part of the standards that provide for
the safe handling, use, and disposal of radioactive materials.
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* The Health Physics Society is a non-profit scientific
professional organization whose mission is to promote the practice of
radiation safety. Since its formation in 1956, the Society has grown to
approximately 6,000 scientists, physicians, engineers, lawyers and
other professionals representing academia, industry, government,
national laboratories, the department of defense, and other
organizations. Society activities include encouraging research in
radiation science, developing standards, and disseminating radiation
safety information. Society members are involved in understanding,
evaluating, and controlling the potential risks from radiation relative
to the benefits. Official position statements are prepared and adopted
in accordance with standard policies and procedures of the Society.
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The position of the Society relative to radiation protection
regulations and standards for the general public have been established
in previous Position Statements of the Society. Portions of these
positions relative to the clearance of materials having surface or
internal radioactivity are:
(1) we support regulations for radiation protection that are based
on the National Council of Radiation Protection and Measurements'
(NCRP) recommendations for dose limits for individual members of the
public;
(2) we recommend that constraints \1\ be applied to all regulated,
non-medical, non-occupational sources of radiation exposure to the
general public, excluding indoor radon, such that no individual member
of the public will receive in any one year a total effective dose
equivalent (TEDE) \2\ exceeding 100 mrem (1 mSv) \3\ from all such
sources combined; and,
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\1\ ``Constraints'' refer to restrictions placed on sources or
practices in order to achieve the dose limits that apply to an
individual.
\2\ The total effective dose equivalent (TEDE) is the sum of the
absorbed doses that will be delivered to the separate organs or tissues
during the lifetime of an individual from one year's intake of
radionuclides plus irradiation by external sources, with each organ or
tissue dose weighted for the type of radiation producing the dose and
with an estimate of the risk that the organ or tissue will develop a
radiation induced cancer or result in a genetic effect.
\3\ The Sievert (Sv) is the international (SI) unit of dose
equivalent or of effective dose equivalent; 100 mrem = 1 millisievert
(mSv). The Society endorses the use of SI units; however, because U.S.
regulatory agencies continue to use traditional units in regulations,
this position statement uses the traditional unit for dose equivalent,
i.e., mrem, throughout the document.
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(3) we recommend that dose limits be applied only to individual
members of the public, not to the collective dose to population groups.
Expansion and clarification of these recommendations specific to
clearance of materials having surface or internal radioactivity further
leads the Society to take the position that:
(4) we recommend that regulations for radiation protection be based
on consensus standards of the American National Standards Institute
(ANSI) issued by the Health Physics Society Standards Committee in
keeping with the intent of Public Law 104-113 ``National Technology and
Transfer Act of 1995'' and OMB Circular A-119 ``Federal Participation
in the Development and Use of Voluntary Consensus Standards'';
(5) we recommend that primary radiation protection standards be all
pathway TEDE standards with screening levels related to quantities that
can be measured such that compliance with these levels will result in
the primary dose standards being met for reasonable and likely
scenarios;
(6) we recommend that these screening levels be derived with
consideration of the principle of as low as reasonably achievable
(ALARA); and,
(7) we support the adoption of ANSI Standard N13.12 (1999),
``Surface and Volume Radioactivity Standards for Clearance'', which is
consistent with positions (1) through (6) above.
ANSI STANDARD N13.12
Clearance is the removal from further control, of any kind, of
items or materials that may contain residual levels of radioactivity.
In 1964, the Health Physics Society, under the auspices of ANSI, began
the technical evaluation of clearance, resulting in early drafts of
ANSI N13.12. These early drafts of the clearance standard were based
primarily on detection levels that could be achieved using field
instruments, with secondary concerns about the potential individual
doses that may result. An early draft version of ANSI N13.12 was
consistent with the surface contamination limits that were published by
the U.S. Atomic Energy Commission in the 1974 version of Regulatory
Guide 1.86, Termination of Operating Licenses for Nuclear Reactors,
which is still in use today.
In 1993, the Health Physics Society Standards Committee, in
agreement with ANSI Committee N13, established a technical writing
group to develop the final N13.12 clearance standard. The charter of
the writing group was to develop a consensus clearance standard that
would be protective of public health based on the recommendations of
the International Commission on Radiological Protection (ICRP).
Recommendations of the NCRP that have been adopted as the regulatory
basis in this country are consistent with those of the ICRP. The
standard was also chartered to consider both surface and volume
radioactive contamination, consider radiation detection issues, and
consider international issues such as the clearance principles outlined
by the International Atomic Energy Agency and international trade
implications for recycled or reused items or materials.
The final clearance standard was approved in August 1999 as N13.
12, Surface and Volume Radioactivity Standards for Clearance. This
standard provides both the individual dose criterion of I mrem per year
for clearance and derived screening levels for groups of similar
radionuclides. The standard also allows for clearance, when justified
on a case-by-case basis, at higher dose levels when it can be assured
that exposures to multiple sources (including those not covered by the
standard) will be maintained ALARA and will provide an adequate margin
of safety below the public dose limit of 100 mrem/y (TEDE). It was
recognized that there were several complex issues that would make it
difficult to fully implement the clearance standard. As a result, some
of these issues were defined to be beyond the scope of the standard,
including: naturally occurring radioactive materials, radioactive
materials in or on persons, release of a licensed or regulated site or
facility for unrestricted use, radioactive materials on or in
foodstuffs, release of land or soil intended for agricultural purposes,
materials related to national security, and process gases or liquids.
__________
RESPONSES OF RALPH E. BEEDLE TO ADDITIONAL QUESTIONS FROM SENATOR BOB
SMITH
Question 1. NRC's success is primarily contingent on industry
performance. What is the industry doing differently in this new
environment to ensure public safety continues to receive the
appropriate level of commitment and to support NRC's efforts to improve
performance?
Response. The nuclear power industry's performance in 1999
demonstrated outstanding safety, reliability and electricity
production. This level of performance could not have been achieved
without an extraordinary commitment to public safety and to improving
all facets of nuclear power plant operation. Data compiled by the World
Association of Nuclear Operators (WAND) demonstrate that, by every
measure WANO tracks, including unit capacity factor, unplanned
automatic plant shutdowns, safety system performance and industrial
safety, the nuclear industry is performing at a high level of safety
and reliability. Attached are the WANO indicators showing industry
improvements in performance over the last 20 years.
Recognizing the critical importance of safe operation, the industry
is actively supporting regulatory reform to focus licensee and NRC
resources on those matters that have the greatest importance to public
health and safety. The Revised Reactor Oversight Process (RROP)
represents a major step in ensuring that public safety is the paramount
emphasis for licensee and NRC resources. Under the RROP, the industry
is voluntarily providing the NRC with performance indicator data that
evaluate plant safety performance in seven key areas. The industry has
worked extensively with the NRC to develop the entire RROP and
supported a nine-plant pilot project that was completed in November
1999. The RROP now has been implemented for all operating nuclear power
plants.
Self-assessment and corrective action programs have been shown to
be important to the continued safety improvements within the industry
and are a key element in the RROP. Thus, the Institute of Nuclear Power
Operations (INPO) recently developed a self assessment and corrective
action program guideline that has been issued to each utility.
Utilities are actively assessing their programs against the guideline
and making appropriate adjustments. This important area will be part of
the INPO plant evaluation process beginning this summer.
The industry also is actively supporting an initiative to risk-
inform the regulations governing power reactor operations to improve
the safety focus. Revisions to the regulations would be based on risk
insights from probabilistic safety analyses (PSA) and the extensive
operating experience accumulated within the industry to date. The
industry recently submitted to the NRC for its review a document that
will provide assurance that PSA studies have the necessary quality and
completeness to provide appropriate risk insights. In addition, the
industry is developing a guideline document for identifying safety-
important equipment and how this equipment should be treated to ensure
it is capable of performing its intended function. These documents are
being shared with the NRC. They serve as the basis for industry
interactions with the NRC and for moving forward on this important
project.
At bottom, the industry's extraordinary commitment to safe,
reliable performance and continuing improvement in operations, combined
with its support for a more effective, safety-focused regulatory
approach, benefit the consumer and the public.
Question 2. Although public acceptance of nuclear power seems to be
improving, the industry still suffers from a negative public
perception. Besides your safety record, what is the industry doing to
improve its image and publicize its safety record more effectively?
Response. NEI and its members have engaged in a sustained
communication effort to articulate to the public the many benefits of
nuclear power, including advertising on a local and national basis,
extensive efforts to educate the public through community and other
outreach efforts, grass roots activities and polling.
On a local level, electricity utilities regularly provide speakers
on nuclear energy to civic and other groups, as well as host civic and
school groups at visitor's centers located at or near nuclear power
plant sites. Research consistently demonstrates that those who have
visited a nuclear power plant view nuclear energy more favorably than
those who have not.
Electric companies also have active programs to assist teachers in
developing lesson plans and student materials on nuclear energy as part
of the science curriculum. Just this week, a group of about 50 teachers
toured Florida Power & Light's Turkey Point Nuclear Power Station to
get a better understanding of the plant itself. Organized by FP&L and
the Miami-Dade Public Schools, the tour and additional instruction will
help teachers provide their classes information on nuclear power, the
principles behind it and plant operation.
On a national level, since 1998 the Nuclear Energy Institute has
undertaken a communications program specifically designed to educate
opinion leaders on the benefits of nuclear technologies. NEI advertises
in national publications like The Washington Post, The Washington
Times, and The Wall Street Journal and on Washington, DC-area radio
stations. The advertising program is designed to raise public awareness
of the many benefits of nuclear technologies, including those used in
producing electricity, medical research and treatment, food safety, and
space exploration. The communications program also includes submission
of articles by professionals in these fields in large daily newspapers
across the United States.
NEI also established a comprehensive web site (www.nei.org) that is
used regularly by members of the general public, educators and students
at all levels and professionals in the industry seeking more
information about nuclear power. This site is especially beneficial to
keep the public informed about emerging issues regarding nuclear
technologies.
Although these communications programs help develop public support
for nuclear energy, the record levels of safety in nuclear power
operation and efficient and reliable performance of more than 100
nuclear power reactors in the United States are essential for favorable
public opinion toward the industry. The industry has publicized the
results of annual indicators of performance--the WANO performance
indicator report--to national media and to opinion leaders across the
country.
As the Nuclear Regulatory Commission continues to implement the new
safety-focused regulatory oversight process, the use of the internet
will extend detailed information on nuclear power plant operations to
anyone who has access to the world wide web. An important feature of
this transparent approach to communicating about nuclear energy, the
NRC's plant performance ratings in 18 categories, will be available in
real time on a quarterly basis. The public can also retrieve detailed
inspection reports for each nuclear power plant from the NRC's web
site.
Extensive public opinion research demonstrates that the industry's
improved operation and safety record is beginning to bolster already
high levels of support for nuclear energy by the public. Public
confidence in nuclear power plant safety is turning distinctly higher,
and overall public support for nuclear energy may be on an upswing.*
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* Source: Telephone interviews, April 7-9, 2000, with a nationally
representative sample of 1,000 U.S. adults, margin of error plus or
minus three percentage points, Bisconti Research, Inc.
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Perceptions of plant safety are much more favorable now
than at any time since the question was first asked in 1983. In the
early 1980s, about half of Americans rated nuclear power plants as safe
and now 80 percent believe they are safe.
Confidence in ``my local electric company's ability to
operate a nuclear energy plant safely and correctly'' continues to
increase. It is especially high among people who said that their
electric company operates a nuclear power plant.
The percentage saying nuclear energy should play a very
important role is edging back up. Only 12 percent said nuclear energy
should not play an important role--an all-time low.
Enclosed is a copy of the most recent public opinion report based
on research sponsored by the industry.
Question 3. Where does the industry see itself in twenty years?
What regulatory environment would you envisage then?
Response. The nuclear energy industry and many individual policy
makers and opinion leaders expect nuclear power to account for an even
greater percentage of electric generation in the U.S. throughout the
next 20 years. DOE's Energy Information Agency has predicted that there
will be an increase in demand for electricity to support economic
growth. This growth in demand will necessitate more nuclear power
generation--and likely the construction of more nuclear power plants--
given nuclear power's excellent safety record, high reliability and
``clean air'' contribution to the environment.
However, retaining nuclear power as part of a sound national energy
policy requires the federal government and its administrative agencies
to pursue policy initiatives to address issues that will have a
significant impact on the industry's future. Some of those issues are
listed below:
There must be a national energy policy that ensures
diversity and reliability of energy supply, both of which favor
retaining, if not increasing, the use of nuclear power. Explicit
policymaker recognition of nuclear's role in maintaining a diversified
energy portfolio is critical. This recognition should come through
implementation of the strategies identified in DOE's Comprehensive
National Energy Strategy and the President's Committee of Advisors on
Science and Technology report, both of which call for, among other
things, DOE support for industry efforts to renew operating licenses
and government sponsored nuclear research initiatives.
The NRC must continue to adapt to a maturing industry and
to develop an effective, safety focused regulatory framework. The NRC
has made substantial efforts to reform its regulatory approach,
including implementing an innovative regulatory oversight process that
is more risk-informed and performance-based and, more broadly,
developing risk informed, performance based regulations. While the
industry supports the NRC's ongoing efforts to develop a more effective
regulatory regime, Congress should continue its oversight of the NRC to
ensure that the agency's actions recognize improved industry safety
levels and the NRC implements sound budgeting practices and strategic
planning.
The federal government must fulfill its longstanding
obligation to provide for central storage of used nuclear fuel. The
national policy for management of used fuel was codified in the Nuclear
Waste Policy Act of 1982 and 1987 amendments. Although DOE currently is
evaluating placement of a repository in Yucca Mountain, without
additional legislation the program will not yield timely results,
forcing some plants to use temporary onsite storage. In addition, the
government's breach of its contractual obligation is creating a
taxpayer liability that could exceed $56 billion.
Federal and state policy makers must explicitly recognize
the intrinsic economic value of nuclear power as a greenhouse gas
emission-free energy source. Maintaining nuclear power's emission free
capacity is necessary to prevent increases in the emission-reduction
requirements imposed on emitting technologies. In addition, state and
federal policymakers should (1) consider ways to allow nuclear energy
to capture the clean air compliance value produced by emission-free
sources of generation, (2) ensure that nuclear energy is fairly
labeled, and (3) ensure that nuclear energy is treated equally with
other non-emitting grid capable electric generating sources if an
emission-free portfolio standard is adopted.
Congress must eliminate the duplicative regulatory schemes
that have allowed EPA to become involved in issues that are more
appropriately subject of NRC authority. (For example, EPA has
threatened to overturn NRC's regulatory decisions by seeking
remediation under Superfund for sites decommissioned in accordance with
NRC requirements. Another example of unnecessary and unproductive dual
regulation is the application of the Resource Conservation and Recovery
Act to commercial mixed wastes.)
In response to the question regarding the future regulatory
environment envisaged by the industry, we would expect that NRC
regulation would continue to focus on the safety aspects of the plant,
evolving to rely even more heavily on risk-assessment processes in
evaluating and regulating plant operation. The end result of the
various NRC regulatory reforms being implemented, and those we expect
to be implemented in the future, will be a regulatory environment that
requires adherence to strict safety standards but does not permit the
agency to attempt to ``manage'' nuclear plant operations.