[Senate Hearing 106-959]
[From the U.S. Government Publishing Office]
S. Hrg. 106-959
DISPOSAL OF LOW-LEVEL RADIOACTIVE WASTE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
JULY 25, 2000
__________
Printed for the use of the Committee on Environment and Public Works
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71-521 WASHINGTON : 2001
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SIXTH CONGRESS
second session
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
J. Thomas Sliter, Minority Staff Director
(ii)
C O N T E N T S
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Page
OPENING STATEMENTS
Bennett, Hon. Robert F., U.S. Senator from the State of Utah..... 1
Boxer, Hon. Barbara, U.S. Senator from the State of California... 5
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 4
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 2
WITNESSES
Adelman, David E., staff attorney, Nuclear Program, Natural
Resources Defense Council...................................... 35
Prepared statement and attachments..........................124-136
Paperiello, Carl, Deputy Executive Director for Materials,
Research and State Programs, Nuclear Regulatory Commission..... 11
Brief, Director's Decision Under 10 CFR 2.206................ 61
Letters:
April 28, 1999........................................... 68
March 26, 1999........................................... 61
July 29, 1999............................................ 69
Memorandum, March 26, 1999................................... 67
Prepared statement........................................... 56
Responses to questions from:
Senators Baucus and Graham............................... 80
Senator Bennett.......................................... 73
Senator Boxer............................................ 77
Senator Moynihan......................................... 77
Senator Smith............................................ 72
Scott, Max, professor, Louisiana State University................ 30
Prepared statement........................................... 103
Shapiro, Michael, Deputy Assistant Administrator, Office of Solid
Waste and Emergency Response, Environmental Protection Agency.. 9
Prepared statement........................................... 47
Responses to questions from:
Senators Baucus and Graham............................... 55
Senator Boxer............................................ 52
Senator Smith............................................ 50
Slesinger, Scott, vice president, Governmental Affairs,
Environmental Technology Council............................... 33
Prepared statement........................................... 109
Responses to questions from Senator Smith.................... 120
Statement, Envirosafe Services............................... 112
Thompson, Anthony J., attorney, Uranium Recovery Industry........ 31
Prepared statement........................................... 105
Westphal, Hon. Joseph W., Assistant Secretary of the Army (Civil
Works), Department of the Army................................. 13
Prepared statement........................................... 81
Responses to questions from:
Senators Baucus and Graham............................... 95
Senator Boxer............................................ 88
Senator Moynihan......................................... 97
Senator Smith............................................ 85
ADDITIONAL MATERIAL
Letters:
Boxer, Barbara, U.S. Senator................................. 158
California Environmental Protection Agency:
January 6, 2000.......................................... 156
August 25, 1999.......................................... 157
California Health and Human Services Agency:
May 20, 1999............................................. 158
March 10, 1999........................................... 157
Conference of Radiation Control Program Directors, Inc....... 135
Department of the Army....................................... 160
Envirocare of Utah, Inc...................................... 145
Environmental Protection Agency:
September 16, 1996....................................... 164
June 26, 2000............................................ 132
New York State Department of Environmental Conservation,
Comments on the Proposed Plan for the Linde Site........... 129
Nuclear Regulatory Commission................................ 161
Safety-Kleen Corp:
October 21, 1998......................................... 159
May 9, 2000.............................................. 150
July 21, 2000............................................ 149
August 4, 2000........................................... 148
Texas Department of Health................................... 165
Notice, Federal Register, May 13, 1992........................... 108
Responses:
Department of Energy to additional questions from Senators
Smith and Baucus........................................... 100
Nuclear Regulatory Commission to additional questions from
Senator Bennet............................................. 136
Statements:
Envirosafe Services of Idaho................................. 112
Fellman, Alan, PhD., C.H.P................................... 136
Hatch, Hon. Orrin, U.S. Senator from the State of Utah,
prepared statement......................................... 47
Peus, Eric C., president, Waste Control Specialists LLC...... 141
DISPOSAL OF LOW-LEVEL RADIOACTIVE WASTE
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TUESDAY, JULY 25, 2000
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice at 9:35 a.m. in room
406, Senate Dirksen Building, Hon. Robert F. Bennett (acting
chairman of the committee) presiding.
Present: Senators Bennett, Inhofe, Crapo and Boxer.
OPENING STATEMENT OF HON. ROBERT F. BENNETT,
U.S. SENATOR FROM THE STATE OF UTAH
Senator Bennett. The committee will come to order.
Let me offer my apologies for being late. I won't bore you
with the details, but I will apologize to you because I
recognize that we have to move quickly this morning. The life
we lead in the week before the August recess, everybody has
another hearing to go to and other demands on their time.
Senator Inhofe, who was the first one here, does have
another committee meeting to go to. I will forego any opening
statement of mine in order to hear his, so that we can
accommodate his schedule.
[The prepared statement of Senator Bennett follows:]
Statement of Hon. Robert F. Bennett, U.S. Senator From the State of
Utah
Today's hearing of the full committee on Environment and Public
Works will explore current regulatory policies for the disposal of low-
level radioactive wastes. Specifically, the committee is concerned
about the treatment of wastes that were originally generated at
industrial sites involved in our nation's nuclear weapons program. Many
of these sites are currently being remediated by the U.S. Army Corps of
Engineers (USACE) under the Formerly Utilized Sites Remedial Action
Program (FUSRAP).
BACKGROUND
The Department of Energy (DOE) originally created the FUSRAP
program in 1974 to address radiological contamination at sites used by
two of DOE's predecessor agencies, the Manhattan Engineering District
(MED) and the Atomic Energy Commission (AEC), from the 1940s through
the 1960s. The contaminants are primarily low levels of uranium,
thorium, and radium, with their associated decay products. Mixed wastes
are also present. From 1974 to 1997, the program was administered by
DOE, which took the position that these wastes should be disposed of
only in DOE facilities or in sites licensed by the Nuclear Regulatory
Commission (NRC).
The Energy and Water Development Appropriations Act for fiscal year
1998 (FY98) P.L. 105-62, signed into law on October 13, 1997,
transferred responsibility for the administration and execution of the
FUSRAP program from the Department of Energy to the U.S. Army Corps of
Engineers. At the time of enactment of P.L. 105-62, according to DOE,
remediation was completed at 24 sites with some ongoing operation,
maintenance and monitoring being undertaken by DOE. Remedial action was
planned, underway, or pending final closeout at the remaining 22 sites.
LEGAL INCONSISTENCY AND CONCERNS
Following the transfer of the FUSRAP program the U.S. Army Corps of
Engineers made an inquiry with the NRC regarding the agency's position
on the relevance of its licensing program or rules and regulations for
the disposal of FUSRAP wastes. Specifically, the Army Corps asked ``Is
an NRC license required for handling activities related to disposal of
the FUSRAP wastes . . . ?'' In a response from Robert L. Fonner,
Special Counsel for Fuel Cycle and Safeguards Regulations, the NRC
indicated that ``Prior to the enactment of the Uranium Mill Tailings
Radiation Control Act of 1978 (UMTRCA), neither the AEC nor the NRC
claimed statutory jurisdiction over the tailings from ore processed for
source material.'' ``UMTRCA gave NRC statutory authority over such
tailings, but only over tailings resulting from activities licensed by
NRC as of the effective date of the act (November 8, 1978), or
thereafter.'' Mr. Fonner concluded that NRC had no basis to assert any
regulatory authority over the handling of FUSRAP wastes generated prior
to the 1978 enactment of UMTRCA. Further, the Fonner correspondence
states that ``There are no NRC rules or regulations that would preclude
disposal of FUSRAP wastes at a Resources Conservation and Recovery Act
(RCRA) disposal facility.''
Since neither I nor our committee have closely analyzed this issue,
any assessment on my part regarding what is happening here must be
considered preliminary. Having said that, I have two strong--and quite
negative--reactions to these developments. The first is that there are
obvious deficiencies in a system that treats differently pre-1978 and
post-1978 FUSRAP waste, when there is no physical difference between
these two categories of waste and no difference in the health and
safety dangers posed by the two categories.
The second reaction is of greater concern. Both the NRC and the
Army Corps of Engineers have indicated that the disposal of FUSRAP
wastes at RCRA facilities is not troublesome because the tailings are
subject to regulation under other federal and state laws. However,
because the Atomic Energy Act, as amended by UMTRCA, preempts the field
of nuclear safety regulation for 11e.(2) byproduct materials, it
appears that these materials would not be subject to any state
regulation protecting the public from radiation exposure. Further, it
is my understanding that the Environmental Protection Agency (EPA) does
not have jurisdiction under RCRA to regulate these wastes. If my
understanding is correct, then under the regulatory regime now in place
pre-1978 wastes, even those with high radioactivity levels, will not be
regulated by any federal or state regulatory agency. The regulatory
vacuum created by this gap in the law is an unacceptable and dangerous
state of affairs, and one that our citizens should not be exposed to.
Clearly, clarification is needed to address these inconsistencies
in the law. NRC Chairman Richard Meserve has indicated to me in
correspondence dated March 8, 2000, that ``A legislative solution would
be the most direct approach to clarifying the NRC's responsibilities
under UMTRCA.'' It is my hope that the testimony given today will help
this Committee move forward with legislation establishing a risk-based
standard for the disposal of low-level radioactive wastes.
I look forward to today's testimony and welcome our witnesses.
Senator Bennett. Senator.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. That is very kind of you. We do have our
Armed Services Committee with Bill Cohen. It is in an area that
I feel I really need to be. So thank you for allowing me to go
first.
First of all, I would like to tell you, Mr. Chairman, that
Dr. Westphal is one of my fellow Okies. We have known each
other for a long time. I have always been honored to serve with
him.
I am sorry I won't be able to stay for the entire committee
hearing. This is an important hearing that we have today
addressing low-activity radioactive waste. I want to repeat
that: low-activity radioactive waste.
I have heard from radiation scientists that this level of
radioactivity is something that you can be exposed to, more of
it, in this room just because of the marble than you would the
waste that we are talking about.
While I certainly understand the frustration of defining
waste by the year it was produced instead of radiation of
health threat, I don't think the appropriate response is just
to send all the waste to an NRC. The most important issue is
whether the waste is being properly handled and disposed of.
Based upon the experience of the program, I do not believe
it is necessary to send all low-level waste to an NRC facility.
There are dozens of sites, private sites, and the level of
competition does have an effect on the cost of disposal.
Because of this issue and other radiation issues, I believe
that Congress does need to take a close look at the radiation
standards problem.
As the chairman of the Nuclear Safety Subcommittee, I
intend to do just that. Last month the General Accounting
Office issued a report on ``Radiation Standards, Scientific
Basis, Inconclusive and EPA and NRC Disagreement'' continues.
That is actually a quote there. That is the name of the report.
Three key findings were, this is the report you might
remember that Senator Pete Domenici, was asking for. No. 1,
U.S. radiation standards propounding protection lack a
conclusively verified scientific basis according to a consensus
of recognized scientists.
No. 2, lacking conclusive evidence of low-level radiation
effects, U.S. regulators have in recent years set sometimes-
differing exposure limits.
No. 3, costs of implementing radiation protection standards
at nuclear cleanup and waste disposal facilities vary from site
to site.
This report verifies what I believed all along, our
radiation standards are not consistent. Because of this, 3
months ago I asked the Health Physics Society to develop
legislative principles to address radiation standards.
I intend to use these principles drafted by scientific
experts to write legislation, which I hope to introduce before
the end of the year. I will be working on this issue with
members of my subcommittee and other interested parties to
craft a solution for all of our radiation standards issues,
including the FUSRAP wastes, metal recycling, decommissioning
of facilities in Yucca Mountain.
I realize this issue cuts across party lines. Certainly, I
find myself philosophically disagreeing with our distinguished
Senator from California many times and I am normally in
agreement with the Senator from Utah, however, I believe in
simply changing the date and requiring all wastes to be sent to
the NRC licensed facility will be regulatory overkill and add
nothing but additional cost.
I have been told that the costs are higher at an NRC
licensed facility. I believe a better approach would be to look
closely at all radiation standards.
I have a chart that shows some of the different costs of
disposing of some of these wastes. No. 1, the wastes at the NRC
site and dealing with above soil survey volume, the same amount
of disposal at that site was $510 as opposed to when there is
competition and it was $71.50.
So without objection, I ask unanimous consent to include
this with my opening remarks, Mr. Chairman, in the record.
Senator Bennett. Without objection.
Senator Inhofe. I do feel that most of this is money that
was spent by the public sector. These are tax dollars and we
should be as frugal as possible. I am sure you would agree with
that statement. We should be as frugal as we can be with our
disposal costs.
I thank you very much for allowing me to go on the record
first.
Senator Bennett. Well, thank you. We appreciate your
comments and the preparation that you have put into them.
Senator Crapo, you arrived next. So let's hear from you and
then Senator Boxer.
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. Thank you, Mr. Chairman. In the interest of
time I will not make an extensive opening statement. I do
associate myself with the comments of Senator Inhofe and the
concerns that he has raised. But I look forward to getting as
quickly as we can to the witnesses, so I will forego any
further statement.
Senator Bennett. Thank you very much. Senator Boxer.
Senator Boxer. Mr. Chairman, do you want to make yours? I
am not in a rush. I am going to be here the entire time.
Senator Bennett. You are going to be here the entire time?
Well, OK.
Senator Boxer. Yes, this is a very important issue to me,
so I am happy to hear your comments. As a matter of fact, I
look forward to hearing your comments.
Senator Bennett. Thank you. I have indicated to all of the
concerned parties that have come before me on this issue,
committee members and committee staff, the various stakeholders
and so on that my goal is to keep the hearing focused on the
policy of how we dispose of FUSRAP waste.
There is a gap in the current regulatory statutes that
needs to be addressed one way or the other. It does not to me
make sense to have an artificial and arbitrary dividing line
that is drawn by the regulators.
I think a risk analysis needs to be done to establish a
standard that is protective of public health and safety. I
agree that the primary goal should be public health and safety.
The primary goal should not be some arbitrary regulatory
decision.
So I am open to just about any kind of solution that makes
sense and that is focused on public health and safety.
We should, I think, recognize that mildly radioactive
wastes are different from other wastes. The Congress has made
that decision and the arbitrary dividing line that has resulted
from the way that decision was made and the way it has been
interpreted is the reason that we are here today.
Waste streams that are hotter than the new standards should
be disposed of at NRC licensed sites, regardless of the year in
which they were generated.
So I have prepared a written statement outlining these
general goals, but these are my goals for the hearing. This is
the way in which I am approaching this. I think it is the
responsibility of this committee to focus on these goals and
say our purpose here is to protect the safety and to remove
regulatory uncertainty.
If we go at it with those two as our goals, probably in
that order, then I think we will have achieved our responsible
goal here.
So that is really all the focus that I have.
Senator Boxer.
OPENING STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Thank you, Mr. Chairman. I am going to take
my full 5 minutes. I want to thank you so much for requesting
this hearing and I want to thank Senator Smith because he, of
course, gave us the go-ahead to do it.
I do agree with the general thrust of your comments. But I
perhaps feel a little bit strong about it and I want to tell
you why.
When I learned that the Corps had disposed of 2,200 tons of
radioactive waste in an unlicensed hazardous waste facility in
Buttonwillow, CA, I was shocked. The facility sits atop
aquifers that supply water to the central valley of California.
For those of you who don't know, that is the ``bread
basket'' of California.
When I called the Corps, they told me, ``Senator, this
waste is so safe you could roll around in it.'' That is a
direct quote from the Corps counsel.
What is this safe radioactive waste? Senator Inhofe talked
about his view. But I want to talk about what it is. The
radioactive waste dump at Buttonwillow is uranium, thorium, and
radium. These radioactive materials can cause cancer, leukemia,
and genetic defects. They persist in the environment for
millions and billions of years.
Uranium-238, for example, has a half-life of 4.5 billion
years. So when Senator Bennett says this waste is a little
hotter, he is right.
When I started looking into it, I found that the Corps sent
this radioactive waste to Buttonwillow even though Buttonwillow
is not regulated by the Nuclear Regulatory Commission. The
Corps does so under the FUSRAP, which is Formerly Utilized
Sites Program.
The program focuses on cleaning up old Manhattan Project
nuclear weapons facilities. I also learned that when the
program was managed by the Department of Energy it required
that all waste generated from clean-ups had to go to NRC-
licensed facilities.
Of course, that is the policy issue that Senator Bennett
refers to. That was the policy of the United States of America
as long as it ran the clean-up program, as long as the
Department of Energy ran it from 1974 to 1997.
The Department of Energy had this requirement because NRC-
licensed facilities are especially equipped to deal with
radioactive waste. They are sited to guard against radioactive
waste leaking into the environment.
So if you look at the site in Utah or, for example,
Washington State, you will find that they are sited to guard
against radioactive waste leaking into the environment. They
are not sited over aquifers, for example.
They are monitored to catch leaks if they do occur. They
are required to be monitored and managed into perpetuity, to
make sure the public health and environment are protected.
Now when the Corps took over the program in 1997, it wrote
to the NRC. The Corps asked the NRC whether it was required to
dispose of the radioactive waste at an NRC facility. The NRC
responded with an answer that is even more remarkable than the
fact that the Corps dumped 2,200 tons of radioactive waste at
an unlicensed California dump, which is remarkable in and of
itself.
The NRC said that if the radioactive waste was generated
before passage of the Uranium Mill Tailings Radiation Control
Act of 1978, the NRC would not regulate that waste.
If the waste was generated after the passage of the Act,
NRC would require that the waste go to an NRC-licensed
facility. The Buttonwillow waste, and indeed most of the
radioactive waste resulting from FUSRAP clean-ups was generated
before 1978. So according to the NRC answer to the Corps, the
NRC would not require the Corps to dispose of this waste at a
protected NRC-
licensed facility.
If the NRC doesn't tell the Corps how to safely dispose of
this radioactive waste, who does? The answer is: No one. Under
the NRC interpretation of the law it appears that no Federal or
State agency has the authority to require that the waste go to
a licensed facility.
According to the Corps, this NRC position means the Corps
can send the waste wherever it chooses, to hazardous waste
facilities or even to regular landfills.
Is there a different between this pre- and post-1978
generated radioactive waste? Even if we take Senator Inhofe's
point, oh, it's not so dangerous, is there a different between
the waste that was generated before and after? None, except its
birthday.
The radioactive waste is the same. It is just as harmful to
people. It is just as harmful to the environment. What is the
NRC's justification for the result that identical waste is
protectively regulated in one case, but not on the other.
The NRC answers this question in its testimony. It says
that it is not ``unusual'' for similar radioactive materials to
be regulated differently. They say, ``This is the result of the
fragmented statutory regime governing radioactive materials.''
So they are really laying it off on us. That is the bottom
line. So that is why we felt, Senator Bennett and I, that this
was a very important hearing. To me that answer is a
frightening answer because it means that during this period of
time before anyone was looking we could have caused tremendous
problems.
It is not comforting to me. It is not comforting to the
people of California, especially in Buttonwillow.
Now the Corps, for its part, assures me its actions in
Buttonwillow are protective of public health and the
environment. The Corps rejected my repeated request to remove
the waste from California. I was promised that one and then we
got a back off from the promise.
Now they say this waste is too dangerous to move. Now,
first they told me I could roll around in it. I am glad I
didn't do that. Because now they are saying it is too dangerous
to move.
The story keeps changing. The Corps assures me its policy
of disposing of this waste is a good idea. When I ask the Corps
for environmental and public health studies they can't give me
anything because there are no studies.
The Corps and the NRC reversed a long-standing DOE policy
of disposing the waste at NRC facilities without so much as a
single study. I think that is just a very sad thing for the
people of the United States of America to learn.
The citizens who would have to live each day near these
facilities are extensively involved and should be extensively
involved in the siting process, but not the way things are
being done now. They don't even know anything about it.
The Buttonwillow community and other communities across the
Nation that could become dumping grounds for the Corps have no
say as to whether their hazardous waste facilities should be
turned into radioactive waste dumps and have the Corps say,
``Gee, we can't move it because now it is mixed with these
other hazardous waste and it is very dangerous.'' Well, it
wasn't dangerous when they put it there but suddenly it becomes
dangerous when it is mixed with other wastes.
Why on earth was it put there to mix with these other
wastes? It happened through the back door in California. It
happened at the hands of the Federal Government.
We have a solution: Put this waste at a safe NRC-licensed
facility such as the one in Utah, the one in Washington State.
So you can see, Mr. Chairman, this has been a lot of
frustration on my part. I think sneaking this kind of waste
into a facility without the proper permits was a horrendous
thing. Then, sitting on your hands doing nothing when you are
caught at it and now saying it is too dangerous to move. Those
are answers?
I hope, Senator Crapo, you never have that problem in your
State, and Senator Bennett, that you never have that problem in
your State. I hope we can find an answer here and stop this
situation from continuing because I don't want to see other
States suffer from this anxiety the way the people of
California have.
Thank you.
[The prepared statement of Senator Boxer follows:]
Statement of Hon. Barbara Boxer, U.S. Senator From the State
of California
Thank you, Mr. Chairman. I would like to thank my colleague Senator
Bennett for joining me in requesting this hearing.
When I learned that the Corps had disposed of 2,200 tons of
radioactive waste at an unlicensed hazardous waste facility in
Buttonwillow, California, I was shocked. The facility sits atop
aquifers that supply water to the Central Valley of California.
When I called the Corps, they told me ``Senator, this waste is so
safe, you could roll around in it.'' What is this ``safe'' radioactive
waste? The radioactive waste dumped at Buttonwillow is uranium, thorium
and radium. These radioactive materials can cause cancer, leukemia and
genetic defects. They persist in the environment for millions to
billions of years. Uranium 238, for example, has a half life of 4\1/2\
billion years.
When I started looking into it, I found that the Corps sent this
radioactive waste to Buttonwillow, even though Buttonwillow is not
regulated by the NRC. It does so under FUSRAP, the Formerly Utilized
Sites Remedial Action Program. The program focuses on cleaning up old
Manhattan Project nuclear weapons facilities. The Corps involvement
surprised me because it is so far outside of the navigation and flood
control mission of the agency.
I also learned that when the program was managed by the Department
of Energy (DOE), it required that all wastes generated from cleanups
had to go to Nuclear Regulatory Commission (NRC) licensed low level
radioactive waste facilities.
That was DOE policy for as long as it ran the cleanup program--from
1974 to 1997. The DOE had this requirement because NRC-licensed
facilities are specially equipped to deal with radioactive waste. They
are sited to guard against radioactive waste leaking into the
environment. They are monitored to catch leaks if they do occur. They
are required to be monitored and managed into perpetuity to make sure
the public health and environment are protected.
When the Corps took over the program in 1997, it wrote to the NRC.
The Corps asked the NRC whether it was required to dispose of this
radioactive waste at an NRC-licensed facility.
The NRC responded with an answer that is even more remarkable than
the fact that the Corps dumped 2,200 tons of radioactive waste at an
unlicensed California dump. The NRC said that if the radioactive waste
was generated before the passage of the Uranium Mill Tailings Radiation
Control Act of 1978, the NRC would not regulate that waste.
If the waste was generated after the passage of that Act, the NRC
would require that the waste go to an NRC-licensed low level
radioactive waste facility. The Buttonwillow waste, and indeed most of
the radioactive waste resulting from Formerly Utilized Sites Remedial
Action Program (FUSRAP) cleanups, was generated before 1978. So,
according to the NRC answer to the Corps, the NRC wouldn't require the
Corps to dispose this radioactive waste at a protective NRC licensed
facility.
If the NRC doesn't tell the Corps how to safely dispose of this
radioactive waste, then who does?
The answer is no one.
Under the NRC interpretation of the law, it appears that no Federal
or State agency has the authority to require that this waste go to an
NRC-licensed low level radioactive waste facility.
According to the Corps, this NRC position means the Corps--can send
the waste wherever it chooses--to hazardous waste facilities or even to
regular landfills.
Is there a difference between this pre- and post-1978 generated
radioactive waste?
None except its birthday. The radioactive waste is the same. It is
just as harmful to people. It is just as harmful to the environment.
What is the NRC's justification for the result that identical waste
is protectively regulated in one case, but not regulated at all in the
other? The NRC answers this question in its testimony. It says that it
is not ``unusual'' for similar radioactive materials to be regulated
differently. They say ``this is the result of the fragmented statutory
regime governing radioactive materials.''
The NRC answer isn't that its policy is protective of public health
and the environment. The answer isn't that it makes good policy sense.
The NRC answer is that when it comes to the regulation of radioactive
waste, the regulatory regime doesn't make much sense. It doesn't make
any sense because that's the way the NRC has chosen to regulate.
That's not comforting to me. That's not comforting to the people of
Buttonwillow, California. And I doubt that answer will be comforting to
other communities that become radioactive waste dumping grounds for the
Corps.
The Corps, for its part, assures me that its actions in the
Buttonwillow case are protective of public health and the environment.
At the same time, the Corps has rejected my repeated requests to remove
the waste from California, now saying the waste is too dangerous to
move when at first it said I could roll around in it. The Corps also
told me it has no authority to move the waste.
The story keeps changing.
The Corps also assures me that its policy of disposing of this
waste at hazardous waste dumps is a good idea. When I ask the Corps for
the environmental and public health studies they rely upon to tell me
this policy is safe, they can't give me anything. Why? Because there
are no studies. The Corps and the NRC reversed a long-standing DOE
policy of disposing of this radioactive waste at NRC licensed
facilities without so much as a single study.
Why do we need to have such studies? Hazardous waste facilities
like Buttonwillow aren't sited with the disposal of radioactive waste
in mind. Climate, geography, and other site characteristics figure
heavily in the siting of a radioactive waste dump.
Extensive studies are prepared to help ensure that these long-lived
and dangerous materials are not leaked into the environment. The
citizens who would have to live each day near the facility are
extensively involved in the siting process. They participate in
hearings and help scrutinize studies.
Unlike radioactive waste facilities, hazardous waste facilities are
only monitored for 30 years after they close to make sure they are not
leaking. This is of little use where the waste is radioactive and stays
that way for millions to billions of years.
The Buttonwillow community and the other communities across the
Nation that may become dumping grounds for the Corps have no say about
whether their hazardous waste facilities should be turned into
radioactive waste dumps.
It just happens through the back door.
And it happens at the hands of the Federal Government. Now we have
solution. Put this waste at safe, NRC licensed facilities such as the
one in Utah.
I look forward to hearing from all the witnesses here today. I look
forward to getting some answers. I renew my demand that the Corps
remove this waste from California.
You never had the proper permits to put it there. You should make
it right now by removing it.
Thank you.
Senator Bennett. Thank you very much, Senator Boxer. We
appreciate the passion with which you address this issue. Of
course, you address most issues with a sense of determination
to get at the bottom of things.
Senator Boxer. Thank you.
Senator Bennett. Let me remind the witnesses of the 5-
minute rule. We don't mean to be arbitrary about it, but again,
given the situation we find ourselves in, a number of other
Senators have other places that they have to go. We have a
large number of witnesses.
I will place my full written statement in the record,
summarizing it again and it was summarized with Senator Boxer.
My problem is with the difference that comes solely on the
basis of an arbitrary decision and why science is influenced by
a date that Congress has arbitrarily picked is something I
don't quite understand.
If everything is as safe as some of the studies to which
Senator Inhofe referred would indicate, then none of it should
be disposed in an NRC site. If some of it belongs in an NRC
site, then obviously all of it does, to me.
But that is why we have the witnesses here to examine it.
We appreciate the first panel that is with us. Mr. Shapiro, Mr.
Paperiello, and Dr. Westphal. We will go in that order.
Please introduce yourselves and tell us briefly what your
background is. I won't do that from here so we won't duplicate
it, in the interest of time. We will hear from each of you in
that order.
Mr. Shapiro.
STATEMENT OF MICHAEL SHAPIRO, DEPUTY ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL
PROTECTION AGENCY
Mr. Shapiro. Thank you, Mr. Chairman. My name is Michael
Shapiro. I am the Deputy Assistant Administrator for Solid
Waste and Emergency Response at the Environmental Protection
Agency.
I am pleased to appear before you today on this panel of my
colleagues from the Army Corps of Engineers and the Nuclear
Regulatory Commission to address the subject of low-activity
radioactive wastes and in particular the material referred to
as 11e.(2) byproduct material from FUSRAP sites.
My brief statement this morning will focus on EPA's role in
the regulation of FUSRAP wastes under the Uranium Mill Tailings
Radiation Control Act, UMTRCA, the Comprehensive Environmental
Response Compensation and Liability Act, or Superfund, and the
Resource Conservation and Recovery Act, RCRA.
As you will hear more this morning, most of the waste at
FUSRAP sites is byproduct material covered by section 11e.(2)
of the Atomic Energy Act. UMTRCA amended the Atomic Energy Act
and gave EPA the regulatory responsibility to establish
standards for the protection of public health, safety and the
environment associated with the processing, transfer and
disposal of 11e.(2) material.
Under UMTRCA, the Nuclear Regulatory Commission is
responsible for implementing and enforcing these regulations.
The NRC has interpreted UMTRCA as limiting its jurisdiction to
11e.(2) as generated at sites licensed during their operation
and does not believe that it has regulatory jurisdiction over
the pre-1978 11e.(2) material.
Initially, as you pointed out, the Department of Energy was
responsible for managing the FUSRAP Program. In the Fiscal Year
1998 Appropriations bill, Congress transferred management to
the FUSRAP program to the U.S. Army Corps of Engineers.
The Fiscal Year 2000 Energy and Water Development
Appropriation Act states that the Corps shall undertake cleanup
of the remaining FUSRAP sites under CERCLA. Seven of these
sites are on the Superfund national priorities list. At these
seven sites, EPA must approve the cleanup remedy selected by
the Corps of Engineers.
The Corps does not have to receive EPA approval of the
remedies selected at non-NPL FUSRAP sites, but does have to
follow the Superfund regulations, called the National
Contingency Plan or the NCP.
In particular, EPA's offsite rule, which is part of the
NCP, implements the CERCLA requirement that waste removed from
a site under the Superfund must be sent to a facility that is
in compliance with Federal and State disposal requirements.
To assure that wastes removed under the NCP are disposed of
in a way that protects human health and the environment, the
party conducting the cleanup should request a determination of
the offsite rule from EPA to assure that the disposal facility
meets the requirements of that rule.
Finally, RCRA does not regulate 11e.(2) byproduct material.
The RCRA statutory definition of solid waste specifically
excludes source, special nuclear and byproduct material as
defined by the Atomic Energy Act.
EPA regulations generally permit the disposal of non-
hazardous waste in RCRA hazardous waste landfills. However,
States may regulate the disposal of material that is not
regulated as hazardous at the Federal level.
Some States have established their own standards for the
disposal of certain federally unregulated materials such as
Naturally Occurring Radioactive Material or NORM or the pre-
1978 FUSRAP material.
RCRA hazardous waste landfills are designed to be highly
protective disposal facilities and therefore may be suitable
for the disposal of certain low-activity radioactive wastes.
However, because of the special characteristics of
radioactive materials which are not addressed by RCRA
regulations, the permits for such facilities would have to have
additional conditions to limit the radioactivity of waste that
can be accepted in order to ensure adequate public protection,
to ensure appropriate monitoring, to protect ground water, and
provide for worker protection.
In addition, EPA believes that adequate public
participation is critical to achieving the public acceptance of
these facilities.
In summary, several Federal agencies share statutory
authority to ensure the safe cleanup and disposal of FUSRAP
wastes.
EPA is committed under the current scheme to work with its
Federal partners, as well as with other stakeholders to assure
that FUSRAP sites are cleaned up in an environmental protective
manner and that all of the applicable requirements for
protection of human health and the environment are met.
Thank you for the opportunity to provide this statement. I
welcome any questions following our statements.
Senator Bennett. Thank you very much.
Mr. Paperiello.
STATEMENT OF CARL PAPERIELLO, DEPUTY EXECUTIVE DIRECTOR FOR
MATERIALS, RESEARCH AND STATE PROGRAMS, NUCLEAR REGULATORY
COMMISSION
Mr. Paperiello. I am the Deputy Executive Director for
Operations for Materials, Research, and State Programs at the
Nuclear Regulatory Commission.
By education, I am a nuclear physicist and I am also a
certified health physicist. I am here today to present the
NRC's views on the management and disposal of low-level
radioactive waste in the context of the FUSRAP program of the
Army Corps of Engineers.
Because the Uranium Mill Tailings Control Act does not
direct the NRC to exercise regulatory authority over milling
activities and facilities that were not subject to license at
the time of UMTRCA's passage, the NRC has not regulated the
disposal of mill tailings resulting from the FUSRAP program.
We believe legislation would be required to give us the
authority to regulate pre-UMTRCA mill tailings in the FUSRAP
program. The Appropriations Committees, most recently the House
Appropriations Committee report on the Energy and Water
Development Bill for fiscal 2000 have clearly indicated the NRC
is not intended to license the Corps' cleanup of contaminated
FUSRAP sites.
We are aware that some want us to regulate the disposal of
FUSRAP mill tailings and the arguments are based on the
observation that pre-UMTRCA and post-UMTRCA materials are
radio-
logically similar.
However, and I will repeat, it is not unusual for similar
radioactive materials to be regulated differently. Because it
has raised the most concern, I will focus on mill tailings,
FUSRAP material disposed of in non-NRC regulated facilities and
in particular RCRA subtitle Congress, hazardous waste disposal
facilities.
Tailings, typically, have most of the uranium and thorium
removed, but still contain other radioactive elements in the
decay chains for uranium and thorium, especially Thorium 230
and radium. They also may contain hazardous chemicals used in
the processing to extract uranium.
NRC requirements are based in part of EPA requirements
similar to RCRA Subtitle (C) requirements. State-of-the-art
mill tailings impoundments, like RCRA hazardous waste disposal
cells, rely in part on a system of liners and leachate
detection and collection systems to prevent the releases of
hazardous and radioactive materials to the environment.
If we compare uranium mill tailings to other forms of
comparable radioactive waste, the most similar is
technologically enhanced natural radioactive material or
TENORM.
This material, whose radioactivity has been enhanced as a
result of human intervention includes the same radioactive
elements as mill tailings. TENORM includes coal ash, uranium
mining overburden, mill tailings from the extraction of non-
radioactive elements from ores, and I would note that
Buttonwillow is receiving this kind of radioactive material
from MolyCorp.
Pipe scale and sledges from oil and gas production and
water treatment sludge. The EPA reports that the TENORM volumes
produced in the United States may exceed one billion tons a
year. By comparison low-level waste annual production is about
60,000 tons or 1/10,000ths as much as TENORM.
However, most low-level wastes consist of considerably
higher concentrations of reactor fission and activation
products. Some low-level waste includes material contaminated
with uranium or thorium.
If uranium mill tailings were not defined as by-product
material by UMTRCA, they would be considered to be TENORM. Mill
tailings, low-level waste and TENORM can have significant
overlap in the ranges of radioactivity contamination.
From a risk perspective, all three containing uranium and
thorium in the same ranges of concentrations are equivalent in
risk. From a legal perspective, how they are to be disposed of
varies. TENORM, according to a recent National Academy of
Sciences report, is regulated in a rather fragmentary manner.
We have not conducted a comprehensive review of TENORM
disposal practices in the United States. We are aware that some
TENORM is disposed of in some RCRA subtitle C hazardous waste
facilities.
Practices vary depending on the permit conditions for
radioactive materials imposed by the State permitting agency
and the radioactivity of the waste for disposal.
The NRC is aware that several facilities have concentration
limits of 2,000 Picocuries per gram on the material they
receive. At least one has limits on worker exposure.
Because mill tailings impoundments and hazardous waste
cells are based on large part on the same EPA requirements, the
NRC believes that both RCRA landfills and NRC license disposal
facilities should be able to provide adequate protection for
the public and the environment for TENORM and mill tailings
types of material.
It may be necessary to place limits on the radioactive
concentration of the material disposed of in a RCRA facility to
ensure worker protection or other safety concerns are
adequately addressed.
The sites that we know of that are accepting TENORM and
FUSRAP material have such limits. In addition, we recognize
that long-term stability of RCRA sites is achieved somewhat
differently than an NRC license site.
If Congress believes the NRC should regulate the disposal
of pre-UMTRCA mill tailings in the FUSRAP program, the NRC is
willing to assist in amending UMTRCA.
This completes my statement. I would be pleased to answer
any questions from the committee.
Senator Bennett. Thank you very much.
Dr. Westphal.
STATEMENT OF HON. JOSEPH WESTPHAL, ASSISTANT SECRETARY OF THE
ARMY (CIVIL WORKS), DEPARTMENT OF THE ARMY; ACCOMPANIED BY
JULIE PETERSON, U.S. ARMY CORPS OF ENGINEERS, HAZARDOUS TOXIC
AND RADIOACTIVE WASTE CENTER OF EXPERTISE, AND CAPTAIN NOELLE
SIMPSON, U.S. ARMY CORPS OF ENGINEERS, ASSISTANT COUNSEL FOR
ENVIRONMENTAL RESTORATION, REGULATION AND COMPLIANCE
Dr. Westphal. Good morning, Mr. Chairman, Senator Boxer,
Senator Crapo. My name is Joseph Westphal. I am Assistant
Secretary of the Army for Civil Works. I thank you for the
opportunity to testify before you today.
The Formerly Utilized Site Remedial Action Program, FUSRAP,
as you know, was initiated in 1940 by the Department of Energy.
In 1997, the Congress transferred the cleanup of the remaining
21 sites to the Army Corps of Engineers.
This morning, Mr. Chairman, I do have a couple of people
sitting behind me who are in some ways more technically expert
than I may be.
Senator Bennett. So do I.
Dr. Westphal. Accompanying me is Ms. Julie Peterson, who is
a U.S. Army Corps of Engineers Health Physicist from our
Hazardous Toxic and Radioactive Waste Center of Expertise in
Omaha.
Also with me is Captain Noelle Simpson, a Corps Assistant
Counsel for Environmental Restoration, Regulation and
Compliance.
I have also asked Mr. Stephen Keefer, who represents the
Army Audit Agency, to be available in the event you may have
questions on that.
In this brief oral statement, and I will summarize very
quickly, I want to make just a couple of points regarding the
management and disposal of low-activity radioactive waste
material under FUSRAP.
I believe that the Corps is managing and disposing of
FUSRAP material in a manner that is fully protective of the
public health and the environment.
Since assuming responsibility for FUSRAP in the fall of
1997, the Corps has accomplished a number of important
milestones in the management of this program.
Some examples are seamless transition from the Department
of Energy with no slippage in cleanup activities as a result of
the transfer: partnerships with local communities, State and
Federal regulators: removal and safe disposal of about 325,000
cubic yards of material: completion of remedial activities at 3
of the 21 sites remaining to be completed and records of
decision at 6 sites.
However, there are two issues that have been raised
regarding the Corps' management and disposal of FUSRAP
material. The first has to do with the regulatory status of
FUSRAP material and the second, of course, involves the use of
hazardous waste disposal facilities for some FUSRAP materials
and specifically, as Senator Boxer pointed out, the Safety-
Kleen facility near Buttonwillow, CA.
I have addressed both of these in my complete statement and
Mr. Chairman, I ask that that be placed in the record.
Senator Bennett. Without objection.
Dr. Westphal. First, let me restate that the Corps is
disposing of FUSRAP material in a way which is fully protective
of public health and the environment and which also ensures the
safety of individuals working at the disposal area.
The Corps has sought guidance from the NRC regarding the
regulatory status of FUSRAP materials. The NRC has determined
that certain FUSRAP materials do not fall under the NRC's
regulatory jurisdiction.
On the matter of disposal, we believe that the Resource
Conservation and Recovery Act, RCRA, Subtitle C, hazardous
waste disposal facilities do provide for the safe and
protective disposal of some FUSRAP material.
RCRA Subtitle C disposal facilities are hazardous waste
facilities which are designed and constructed to protect the
environment from a variety of hazardous materials.
These facilities all have designs and operating plans that
include liners, leachate collection systems, surface and ground
water monitoring, enforceable worker protection standards,
perimeter security, emergency response plans, eventual caps
upon unit closure, and long-term maintenance and land-use
restrictions.
States or EPA issue permits for these facilities only after
notice and public comment, including notice and comment on any
permit provision dealing with radioactive materials.
They are located in geographic areas considered appropriate
for disposal of hazardous waste, due in part to low
precipitation and very deep subsurface intervals to ground
water.
The same protective features will also protect public
health and the environment from FUSRAP material. FUSRAP
materials are not more likely to migrate offsite than any other
hazardous material.
Additionally, there are materials in Subtitle C facilities
that remain hazardous forever. Furthermore, State regulators of
such facilities may require additional protective features for
safe handling of radioactive materials as a condition for
allowing the facility to accept radioactive material.
The Corps has only made limited use of RCRA Subtitle C
disposal facilities for the disposal of FUSRAP materials that
are not regulated under the Atomic Energy Act by the Nuclear
Regulatory Commission.
Although the Corps estimates that as much as 80 percent of
FUSRAP materials are not regulated by NRC, to date the Corps
has utilized Subtitle C disposal facilities for approximately
20 percent of its material.
The majority of the material disposed at Subtitle C
facilities came from interim storage piles at the Middlesex, NJ
site and was disposed at the EnviroSafe of Idaho facility.
All materials shipped to Subtitle C facilities were well
below their acceptance threshold. For example, while EnviroSafe
of Idaho accepts materials with an average activity level of up
to 355 PicoCuries per gram, the material that the Corps shipped
to EnviroSafe from one of the piles at Middlesex had an average
activity level of only 18 PicoCuries per gram.
Similarly, the building debris, which the Corps disposed of
at the Safety-Kleen facility at Buttonwillow, CA, had an
average activity level of only 335 PicoCuries per gram,
although Safety-Kleen is permitted to accept material with an
average activity level of up to 2,000 PicoCuries per gram.
We have all learned an important lesson from the
controversy which resulted from the Corps' use of the Safety-
Kleen facility. Better communications with the regulators of
FUSRAP disposal facilities are as important as communications
with regulators responsible for how FUSRAP sites are
remediated.
As a result, I have directed the Army Corps of Engineers to
immediately establish a policy requiring the written
concurrence of the regulatory agencies responsible for
overseeing the disposal sites' operation, stating that the
proposed disposal is consistent with applicable regulations and
licenses or permits.
In the same vein, I have asked the Army Audit Agency to
investigate all aspects of the Corps' use of the Buttonwillow
facility for the disposal of demolition debris from Linde,
Building 30 in Tonawanda, NY. I expect that this audit will
help us determine how and where we can improve on the
management of this process.
However, I can share with you the tentative conclusions
reached by the Army Audit Agency which are that the Corps was
in full compliance with all applicable laws and regulations and
acted responsibly in protecting overall human health, safety
and the environment.
Mr. Chairman, I will provide you and the committee members
a copy of that final report as soon as it is available and I
think it will be available in a month.
Senator Bennett. Thank you.
In a way I am regretting now that we scheduled as many
witnesses as we did because I think we could spend the next
hour going through the testimony of the three of you.
Let me comment and summarize what I hear. No. 1, if a
member of the public who had no idea what any of the acronyms
meant had tuned into this hearing, he or she would be
completely baffled.
The second thing that would come through to such an
uninitiated hearer would be that basically nobody is
responsible. EPA says, ``Gee, it's not our responsibility.''
NRC says, ``We are prohibited.'' The Army Corps says, ``Well,
we are doing the best we can and we are acting responsibly,
more or less on a case by case basis.''
There is a suggestion that the Appropriations Committee is
involved. I am an appropriator. I have talked to Senator
Domenici. He says he wants the authorizing committee to deal
with it. Pretty soon there are a whole bunch of chairs and this
thing is falling between all of the chairs and nobody seems to
be putting his arm around it. So that is what we are trying to
do in this hearing.
Now, let me go to this chart for just a minute, because I
find that very useful and maybe I am misinterpreting it. Let me
just walk through it from my lack of scientific understanding
and see if I understand what the chart is saying.
The first item up there says ``soil.'' I think that means
that Senator Boxer could roll around in that without too much
difficulty. Is that a safe summary of what that first one
means?
Mr. Paperiello. Most people would agree to that.
Senator Bennett. OK. Now the second one, byproduct material
is riskier than soil. Would you still think she could roll
around in that, even though it is a little riskier than soil?
Senator Boxer. Mr. Chairman, this is getting very personal.
Senator Bennett. All right. I will roll around in it.
Senator Boxer. We can take turns. Senator Crapo can roll
around the next one.
Senator Bennett. All right. It is farther out on the chart.
Is that----
Mr. Paperiello. It is higher, right. It is a logarithmic
scale.
Senator Bennett. How dangerous is it? I recognize that
things can be higher on the scale.
Mr. Paperiello. Senator, it depends on the duration of the
contact. If you walked over it, and I have stood on mill
tailings piles, it is a small amount of radiation. I get more
by flying across the country.
But remember, the reason for UMTRCA is in Grand Junction,
CO, people used it as fill to build their houses on. You would
not want to lie in it for 365 days a year. So it is a relative.
You can handle much more, and people do, highly radioactive
material, but with time, distance and shielding, you can keep
the dose low. So it is a degree of protection.
Senator Bennett. That is helpful. Now, you get to the third
one, which is the farthest one, and it goes all the way over to
the threshold of spent reactor fuel.
Mr. Paperiello. Yes, sir.
Senator Bennett. Isn't that what we are talking about, that
third line, low-level waste?
Mr. Paperiello. Again, as you can see, it has a large range
and it depends on the legal definition. Once material becomes
low-level waste, it can never ``unbecome'' low-level waste,
regardless of concentration. Obviously, some low-level waste is
extremely low and some is very high. That range is over 10
million in concentration. So whether we like it or not, the law
puts different material in different boxes.
TENORM can be the exact same elements as 11e.(2) byproduct
material or low-level waste and it is not regulated by the
Federal Government.
Senator Bennett. All right. I won't go down through the
rest of the chart but you have just made the point that I think
ought to be the point of these hearings, which is that
inadvertently or through neglect or ignorance, whatever,
Congress has put labels that do not conform with the scientific
realities.
The regulators are responding to the labels, as they
should, as they are required to, and the science is different.
Is that a fair summary of where we are?
Mr. Paperiello. Yes, sir.
Senator Bennett. OK. I think that summarizes why it is
proper for us to hold these hearings because I would like, at
the end of the day, to have the regulations match the science.
If indeed the science says this material is safe, I would be
perfectly happy to have it taken to a non-regulated facility.
If the science says this material is not safe, then I want it
in an NRC facility and that seems to me to be the criteria that
we should be trying to achieve here.
Mr. Westphal.
Dr. Westphal. Mr. Chairman, let me put this in perspective.
In these particular sites, which were sites of work on the
Manhattan Project, the sites were cleaned up back in the 1946
era and beyond according to standards that were in effect at
that time.
Later on, the Department of Energy came in and did further
cleanup of these sites. So the really hot, high-level radiation
was not present any more. These sites in some cases were being
used for other purposes.
We continue now to clean what is remaining there and what
is remaining is the 11e.(2) byproduct. Some of that material
would be classified under that label for that material. The
Corps would go in as it did in the site in New York, and take
samples.
It took, in this particular case, 26 samples, but there
were literally thousands of samples taken before then by the
Department of Energy and by those agencies responsible for
cleanup right after the Manhattan Project ceased its work.
It took those 26 samples and it determined that the average
range was 335 PicoCuries per gram. There was one sample that
was higher than 2,000. But based on that average and based on
guidance from NRC and discussions with EPA, that material could
then be moved. It met very stringent DOT regulations for the
transporting of the material, and sent to a RCRA site that was
permitted to accept that material but could not accept material
beyond an average of 2,000 PicoCuries.
The Corps has also cleaned up sites where the
characteristics are much higher than those averages I just
listed. In those cases, those materials have been sent to
Envirocare in Utah.
Senator Bennett. Senator Crapo.
Senator Crapo. Thank you very much, Mr. Chairman. Following
up with regard to the chart for just a moment, is there any way
to translate that chart into what we are talking about in terms
of PicoCuries?
Mr. Paperiello. No. 1 is about 10 PicoCuries per gram,
roughly.
Senator Crapo. You said one is about 20 PicoCuries per
gram?
Mr. Paperiello. Ten PicoCuries per gram. So 10 would be 100
PicoCuries per gram and 10 squared would be 1,000.
Senator Crapo. If you look at 11e.(2) byproduct material,
the maximum that could be contained in that material would be
what, about a thousand?
Mr. Paperiello. Jim said that he has looked at the document
of concentrations and the range that he shows is what he can
find in documentation.
In my mind, and I asked him this question before the
hearing, theoretically, it seems to me, the Belgian Congo pitch
blend ores that were used, I would have assumed were hotter.
But I really don't know.
Most of the ores in the United States have not been very
radioactive.
Senator Crapo. But what you are showing by the chart there,
and I realize you might have an example in some location that
would vary, but if you look at that chart, we are talking
about, isn't Line 2 the 11e.(2), isn't that what we are talking
about in this hearing?
Mr. Paperiello. Right.
Senator Crapo. The maximum on that line would be somewhere
around 1,000 PicoCuries?
Mr. Shapiro. Five thousand PicoCuries.
Senator Crapo. So it starts somewhere down around 100 and
goes up to about 5,000; is that how you read the chart?
Mr. Paperiello. Yes.
Senator Crapo. All right. Dr. Westphal, you indicated that
the shipments that were sent that you are talking about average
what, 355?
Dr. Westphal. To the Safety-Kleen facility in California it
was 335; to EnviroSafe in Idaho, it was 18.
Senator Crapo. So we are talking about shipments that were
well in the lower end of the range of that second line there on
the chart?
Dr. Westphal. There was one sample that scored higher than
2,000 out of the 26 samples.
Senator Crapo. Where did that sample come from?
Dr. Westphal. But again, we are talking averages, so they
average under 2,000 with one peaking above 2,000. The
Buttonwillow facility is permitted to accept up to an average
of 2,000. So it can accept some material that may have peaked
higher, but on the average it can't be higher than 2,000. So it
is well below that.
Senator Crapo. As I look at the chart, in terms of the
various radioactivity that is shown for the various items
listed there, with the exception of soil, it looks to me like
every other category listed pretty much contains the entire
range that is contained in the second line of the 11e.(2)
byproduct material.
In other words, the low-level waste, the TENORM, the exempt
source material and the low-level waste also all cover the same
range of PicoCuries as does the 11e.(2) byproduct material; is
that accurate?
Mr. Paperiello. Yes. I made that point in my testimony.
They overlap.
Senator Crapo. Would that overlap justify regulating each
of those items in the same manner?
Mr. Paperiello. In my view as a health physicist, if it is
the same element and the same concentration and has the same
risk, the requirements ought to be the same. They are not, but
I mean, you could argue if it is the same element and it is the
same concentration, it has got to be the same risk.
Now, there can be some differences in volumes and volumes
make a very important difference.
Senator Crapo. Let me make my point this way, then, if you
look at soil, it overlaps low-level waste, TENORM and exempt
source materials, sure. Should we regulate soil the same way we
may regulate low-level waste?
Mr. Paperiello. No.
Senator Crapo. In other words, there is a difference
between the lower end of the spectrum and upper end of the
spectrum.
Mr. Paperiello. Oh, yes.
Senator Crapo. So wouldn't it make sense that our
regulatory system should focus on the material that is being
regulated rather than whether there is an overlap in a chart
showing radioactive relativity?
Mr. Paperiello. I would agree.
Dr. Westphal. Senator, may I?
Senator Crapo. Yes, Dr. Westphal.
Dr. Westphal. As I understand it, and Dr. Paperiello, you
can correct me on this if I am wrong, but in these sites the
level of contamination that remains today in some of these
sites has had over time, an opportunity to mix with clean
soils, to be dispersed in the area.
So to some extent this material is dispersed and I suppose
that is the reason that the NRC doesn't regulate this material.
It is pre-1978. Post-1978 the material hasn't had those
opportunities to disperse in soils and it is therefore much
more dangerous to public health and NRC regulates that.
This is my understanding but you may have a different
perspective.
Senator Crapo. I note that my time has expired.
Senator Bennett. We will have a second round on this.
Senator Crapo. Thank you.
Senator Bennett. Senator Boxer.
Senator Boxer. Mr. Chairman, I am going to probably need a
couple of rounds. I want to just state that Dr. Westphal keeps
saying, ``The Buttonwillow site was permitted to accept up to
2,000 average Curies.'' They were not permitted by the
Department of Health in California, to wit, a letter I ask
unanimous consent to put into the record, dated July 1, 1999.
Senator Bennett. Without objection.
Senator Boxer. ``Dear General Ballard, Commander,
Headquarters, U.S. Army Corps, The California Department of
Health takes exception to the shipment and disposal of
radioactive waste to the Safety-Kleen hazardous waste site.''
It goes on to say, ``For any facility not licensed or
otherwise exempted by this department,'' meaning the Health
Department, ``to receive, store, dispose of any radioactive
waste is a violation of California law and would subject the
violator to potential monetary penalties and criminal
prosecution.''
They say, ``For these reasons, the Department hereby gives
notice that it will not approve or authorize any shipment such
as that which has recently occurred at Buttonwillow and the
Department strenuously objects to the Army Corps transporting
or authorizing transportation of radioactive wastes to
unlicensed facilities.''
You have then subsequently told me you are not going to
send it into the State unless the Department of Health signs
off on it; is that correct?
Dr. Westphal. Yes. I have instructed the Corps not to send
any material to any State where they don't have in writing that
the State agencies, whether there is one or in the case of
California, in this case, maybe two agencies, have approved
this.
Senator Boxer. Right now I am interested in this situation.
The Department of Health never gave a permit, so when you talk
about this being permitted, it is not correct. It was another
agency and never went through the Department of Health.
I just want to confirm that you are not sending any more of
this waste in there until and unless the Department of Health
in California signs off on it. I will take it as a yes.
Now, when you talk about the testing, you said the Corps
tests this material from the Manhattan Project. You don't test
the material. A contractor tests the material, is that correct,
before it goes off?
Dr. Westphal. We have contractors that do that work.
Senator Boxer. You don't have any independent test? It is
the contractor that cleans up the site that tells you what is
in that waste; is that correct?
Dr. Westphal. As I understand it, yes, Senator.
Senator Boxer. Well, that in and of itself, if we are
looking at the law, I think is very, very important.
Mr. Paperiello, I want to say that I think I heard you say
in answer to Senator Crapo, and I am glad if you said this,
that you didn't see the rationale for having two different
policies, in other words, if it is about a certain type of
waste there ought to be one policy. Is that what you said?
Mr. Paperiello. I said that all radioactive material that
was the same element and the same concentration ought probably
be regulated the same way. I recognize the legal system
establishes distinctions. That is, as a physicist, I would say
they are the same.
Senator Boxer. Thank you, because I think that is common
sense. I think that is what the chairman is trying to get at.
Now, could you tell me what specific criteria are
applicable for worker protection at a FUSRAP site as opposed to
an NRC-licensed facility.
Dr. Paperiello, can you tell us the difference in terms of
the safety?
Mr. Paperiello. Well, at an NRC-licensed facility all the
workers would be occupational workers. They can be exposed up
to 5 rem per year, but this is essentially with their consent,
informed consent, because we require the training of the
workers, not only on how to protect themselves but what are the
consequences of being exposed to radiation. Anything else,
members of the general public, are only permitted to receive up
to 100 milirem a year and again, there are various ways of
parsing that down and we have done that.
On an occasional basis and as a practical matter, which
usually involves family of medical patients, they can receive
up to 500 milirem a year.
Senator Boxer. I am asking you, Are there different
requirements at a NRC-licensed facility from a hazardous waste
facility, FUSRAP?
Mr. Paperiello. At a hazardous waste facility, in our view,
the workers would be non-occupational workers and would be
limited to 100 milirem.
Senator Boxer. I am interested in liability. Who will clean
up sites? I will ask any of you to answer this. Who will clean
up sites like Buttonwillow if radioactive waste leaks? We know
the pre-1978 is covered under the other law because we now have
two laws here, that the Department of Energy was responsible.
But since the NRC interpretation is that waste generated after
1978 doesn't have to go to this.
But Safety-Kleen that received this waste just declared
bankruptcy. They are going busto. Good call. Who is going to be
responsible? Is it the Corps? Are we going to come back to the
Corps if there is a problem? Is the Department of Energy still
on the hook? Is the EPA on the hook? Who is on the hook? Do any
of the three of you know? Who will mitigate the problems? Who
has the long-term liability for this waste?
Dr. Westphal. Well, Senator, first of all, the contracts do
provide financial assurances as part of their contracting.
Senator Boxer. Who is responsible?
Dr. Westphal. In this case, and I will have to defer a
little bit to EPA, CERCLA is the law that guides the permitting
of these facilities.
In the case of California, as I understand it, the EPA
delegates that program, the RCRA program is delegated to the
State, so it is a State agency that is ultimately responsible.
Senator Boxer. Oh, so the State agency is responsible even
though you sent the waste when the appropriate State agency
didn't give you a permit.
Dr. Westphal. Well, you know, we have one bit of confusion
here that I think is appropriate for all of us to fix. We talk
about licensing and we talk about permitting. I was confused
with that. I was using those words simultaneously and I find
out that you can't.
When I referred to Buttonwillow as a permitted facility,
what I was referring to is that the State has permitted this
company to establish a landfill. The State has permitted the
facility. That is what I am referring to.
Senator Boxer. Well, let me just say this, Mr. Chairman.
Now I find out the State is responsible for this mistake. Not
surprisingly, I am absolutely appalled. Under the old law, the
DOE stood behind it. The Corps isn't going to stand behind
this. They are going to say it is a State problem.
We have a letter from the State saying they had absolutely
no say in getting this material into California, that the Corps
goofed, they sent it in without proper permits and now the
Corps says the State is responsible. This is one big mess.
The contractor went busto. They are gone. And it is going
to be a huge fight if there is a problem. So if there is no
other reason that this one, the liability question, we need to
take another look.
Mr. Shapiro. Senator Boxer, could I add something?
Senator Boxer. It is up to the chair.
Senator Bennett. Sure. Go ahead.
Mr. Shapiro. Under the provisions of the State permit there
normally are financial assurance requirements that would be in
place to cover the clean up and closure of the facility.
Senator Boxer. From who?
Mr. Shapiro. Those have to be provided by the company. As
you have pointed out, Safety-Kleen has filed for Chapter 11
reorganization. They are still operating as a company
attempting to reorganize.
If all else fails, the Superfund law is applicable.
Superfund not only would provide the necessary authority for
EPA to direct the clean up of the facility, but also to require
compensation, not just from any remaining assets of the
facility operator, if there are any, but also ultimately
individuals or entities that send waste to that facility for
disposal, which would include the Federal Government, if we
contributed waste there, as well as a host of private companies
that have sent waste to that facility.
So Superfund does provide broad authority to ultimately
protect the public health.
Senator Boxer. So the Federal Government is responsible, in
your opinion?
Mr. Shapiro. Ultimately we would be if there was no other
source.
Senator Boxer. And the Corps is wrong saying the State is
responsible.
Dr. Westphal. No, I was referring to the permitting of the
facility itself, that the State permits and provides the
guidelines under which that facility would operate.
Senator Boxer. I am confused.
Senator Bennett. In either event it is the taxpayer,
Senator, whether it is the State taxpayer or the Federal
taxpayer.
Senator Crapo. Well, not under Superfund.
Senator Bennett. Well, the taxpayer supports Superfund----
Senator Crapo. Only when the fund is used. I mean Superfund
allows the first take to be with the private sector.
Senator Boxer. I know. Unfortunately, we have a company
that has declared bankruptcy.
Senator Bennett. All right. Let me pursue another issue on
the second round here.
Dr. Paperiello, there has been discussion about the average
concentration of shipments. I am advised that FUSRAP waste from
St. Louis send an NRC-licensed site concentrations of Thorium-
230 as hot as 4,700 PicoCuries, but in a shipment with an
average concentration of 1,500.
So if 2,000 were in fact the cutoff level, the shipment
fell below that average. And yet there were concentrations as
high as 4,700.
Can NRC perform its normal regulatory and enforcement
responsibilities with respect to this material if it has no
authority over it? Someone else has to decide how hot is this
particular thing and should it be separated.
Doesn't the Corps have authority over it because it was
pre-1978 and you could know about his situation I have just
described but not be able to do anything about it?
Isn't this a demonstration of how this is falling between
chairs?
Mr. Paperiello. Well, if it was pre-UMTRCA material it
would not be under our jurisdiction. In terms of how you deal
with the heterogeneous distribution, which is quite common, it
would depend an awful lot on how the receiving facility was
permitted.
I just don't know when a facility is permitted to receive
material up to 2,000 PicoCuries per gram, whoever permits them,
I don't know how they deal with the heterogeneity.
I wish I could give you an answer. I just don't know what
they have done about that.
Senator Bennett. Well, I think you can understand my
concern here as a layman then. Let us say I am the CEO of the
facility that is receiving this material. I am told, OK, it has
an average concentration of 1,500 PicoCuries, so you can take
it.
If I understand your question properly, I am responsible as
the head of this facility, I am responsible to say, ``Wait a
minute. I can't take this particular truck load or car load or
however it is shipped, because it is 4,700 PicoCuries.''
I should stop that at the gate and say, ``It can't come in,
but the rest of it can?''
Mr. Paperiello. Senator, let me deal with this the way we
would deal with things that we license and we have to deal with
heterogeneity and not homogeneous.
If I have a permit to receive 2,000 PicoCuries per gram, I
would have to have an understanding with my regulator how they
would let me average.
We have had a similar situation in our agency on disposal
of radioactive gauges in low-level waste disposal sites. Well,
you have a very radioactive source this big in a gauge.
Senator Bennett. I am familiar with that.
Mr. Paperiello. We have permitted averaging over the volume
of a 55-gallon drum. But fundamentally, you do a risk analysis
and say, ``Really, is the risk, if this material were
homogenized, any different than if it is a point source.'' We
concluded for something like the gauges it is not a difference
in risk. That is why we permitted it.
Senator Bennett. I understand that. That is easy, to say
``OK, we have `x' number of gauges in this pile of material. As
well as we make sure the gauges are not all lumped together in
a single place, it is not a risk.''
Is it my responsible as the CEO of the receiving facility
to say, ``I have to sort through this stuff as it comes in. We
are not talking about gauges here. I have to sort through this
stuff as it comes in to make sure that it is spread out
throughout my facility in such a way as to take care of the
risk?''
Dr. Westphal, does the Army Corps require that of somebody
who comes in? Do you say, ``OK, it is 1,500 PicoCuries, now you
are responsible to make sure it doesn't aggregate so that one
place where a worker or a leakage might occur it is 4,700
PicoCuries?''
Dr. Westphal. I think I understand what you are getting at.
I may ask Julie just to answer this question quickly, but
because we were talking about how much more, if you are
permitted in the State to receive an average amount, say 2,000
is the average, how much higher than that can it go? So if you
have one sample that is that much higher, what limits it? I
think there is industry guidance on that.
Ms. Peterson. Well, not surprisingly, it is not an easy
answer, like most of the answers given today. The laws
governing averaging, they don't exist. They are disposal
facility specific.
A general rule of thumb that we use is the three times
rule. That is, there can be areas of elevated activity inside a
single container. If that area of elevated activity is more
than three times the acceptance criteria of the facility, in
general that is considered unacceptable.
So for example, in the case of Buttonwillow we have an
acceptance criteria of 2,000 PicoCuries per gram total
activity. That is the average. If we have an area of elevated
activity that is greater than three times that, greater than
6,000 PicoCuries per gram, in general that is not considered
acceptable.
But there are not any rules out there on this. This is
negotiated with the facility prior to shipment. It is
negotiated with the facility's regulatory agency prior to
shipment, just as the sampling regime is.
Senator Bennett. I don't want to impose further on the time
limit. Let me ask a question. If there is a quick answer, give
it to me. If there is not, tell me and we will pass it.
Let us say, then, take Buttonwillow, you say the level is
2,000 and here comes a container that is 5,700 and that is
pretty hot. Whose responsibility is it to deal with that 5,700?
Should the Buttonwillow managers try to disperse that material
and rearrange it in such a way that the container then goes
down closer to the average or can they just say, ``All right,
as long as it is not over 6,000 we just bury it anywhere and it
is done?''
Ms. Peterson. No. The average activity in that container,
with the volume of the container, cannot exceed 2,000. If the
average activity in the volume of that container exceeds the
2,000 PicoCuries per gram average total activity, that
container would be unacceptable. The facility has the ability
to return that container to the waste generator.
Senator Bennett. Senator Crapo, I need to understand that a
little better, but go ahead, Senator Crapo.
Senator Crapo. Thank you. Let me just try to clarify an
issue that was discussed a little bit earlier and that is the
issue of financial responsibility to handle these matters as
they come up.
Mr. Shapiro, I think it is probably a question best
answered by the EPA. You indicated that there are financial
assurances provided by the managers of the facilities. Could
you describe what that means and do they have to post bonds or
what does it involve?
Mr. Shapiro. There are various mechanisms that are
permissible and often States, in implementing RCRA regulations,
may impose additional conditions and requirements, beyond what
is required under RCRA.
There could be things like trust funds set up, bonds,
insurance provisions. Any of those can be in certain instances
self-insurance kinds of mechanisms can be used.
So there are a variety of options available to the
regulating agency and the facility that is being permitted.
Senator Crapo. But it is not just a promise that we will
pay in the future. It has to be a financially guaranteed
promise; doesn't it?
Mr. Shapiro. That is right.
Senator Crapo. So that if the company goes bankrupt, the
guarantee is still in place, either the insurance, the bond or
whatever it is, it is still in place?
Mr. Shapiro. That is true in general. I think with respect
to Safety-Kleen, and I don't know who the surety provider is
for that particular Buttonwillow facility, but one of their
principal providers of financial assurance was recently de-
registered by the Treasury.
That does not necessarily mean their bonds are no longer
secure, but it does present a question to regulators as to
whether all of the assets could be available for assurance if
they are backed by that company.
Senator Crapo. The point is that it is not just an
unsecured promise.
Mr. Shapiro. That is correct.
Senator Crapo. It is a very well and usually solidly secure
promise, isn't that true?
Mr. Shapiro. That is correct.
Senator Crapo. Then as the next line of responsibility, the
company itself would be on the line under Superfund; wouldn't
it?
Mr. Shapiro. The company plus potentially companies that
arrange for disposal of waste at that facility.
Senator Crapo. So under Superfund they would be a
responsible party that is potentially liable?
Mr. Shapiro. That is correct.
Senator Crapo. And only at the point where a bond or a
financial assurance failed, the managing company failed and all
its assets were unavailable and the assets of any other
responsible parties were unavailable, would you even then look
to the Superfund itself, is that correct?
Mr. Shapiro. That is correct, although as you know, in some
cases we use the Superfund money as sort of initial money to
get work going.
Senator Crapo. Then you would seek recovery of those
Superfund dollars, wouldn't you?
Mr. Shapiro. That is right.
Senator Crapo. In the remaining time that I have, let me
get to what I think is the core question here. We have talked a
lot about whether waste, similar waste should be treated
similarly or not and as I see those charts you could use that
argument to the extreme and say we should regulate every farmer
and every person who has a garden in America by making them
qualify as one of these storage facilities.
But the point that I think we have to ask ourselves here is
are RCRA facilities adequately regulated to receive these
FUSRAP materials that they are receiving under the law today
and adequately protect the public health and the environment?
Mr. Shapiro, would you like to start?
Mr. Shapiro. Well, as I indicated in my statement, we think
the design and operation of RCRA Subtitle C, hazardous waste
facilities are designed to provide stringent protection against
public and worker exposure to hazardous materials.
There are no Federal EPA requirements dealing with
radioactive materials for those facilities. So additional
protection, which we think is warranted, would have to be
provided by the State agency permitting that facility.
EPA is aware that in a number of cases, including
California, State agencies have imposed additional conditions
on specific RCRA-C facilities and through those provisions have
limited the ability for some of these facilities to accept low-
activity radioactive materials.
However, EPA has not reviewed formally any of the State
requirements, so we have not made our own determination about
whether they are protective.
Senator Crapo. Dr. Paperiello.
Mr. Paperiello. Yes, it is our view that RCRA's facilities
could probably receive a range of low-level radioactive
material because in fact their design is very similar, not
completely the same, as mill tailings sites.
So again, it is the question, as long as the range is
limited, it could be safely disposed of.
Senator Crapo. Thank you.
Dr. Westphal.
Dr. Westphal. Well, as I understand it, the Department of
Energy itself has disposed of this type of material in RCRA
sites in the past. It is also my understanding that in many of
these current sites they are already disposing of other similar
types of material that are coming from the oil and gas
industry, for example.
So I think EPA may be in the process of looking at the
regulatory side of the nuclear part on these landfills and
perhaps that is appropriate that it would affect more than just
the FUSRAP program, it would affect other types of material
that are currently going there.
I do believe that certainly what we have been doing and
what I think we are going to do more stringently in the future,
and the Army Audit Agency is helping us to identify ways in
which to do this, is to improve our practices in which we
assure that the facilities that the material is going to are
properly permitted by the appropriate State agencies and have
all those safeguards for not only the disposal of material, but
also for the worker safeguards.
Senator Crapo. Thank you.
Senator Bennett. Senator Boxer.
Senator Boxer. Mr. Chairman, I want to make a couple of
points for the record and then I am going to ask a question
about cost.
First of all, an EPA official, John Frisco, who is an
expert on this out in Region 9, disagrees with you, Dr.
Paperiello, when he says that an NRC-licensed facility, he
would say that is like an operating room, versus a hazardous
waste facility, where some of the FUSRAP wastes are going, as a
butcher shop.
So he certainly sees a heck of a difference between the
facilities that the Corps is sending these materials to and
they go all the way up to spent reactor fuel level, despite
what might be said, as Senator Bennett pointed out. He sees a
difference between these facilities.
Second point, Mr. Shapiro and Dr. Westphal, you may have
given us really exciting news on Superfund because my reading
of the law on section 101, section 22, excludes Superfund from
handling this kind of waste.
So I hope you can direct me to the exact part of the law in
Superfund that shows me Superfund is responsible for this kind
of waste. Do you have that information on you? Can you cite the
law? Please direct me because I have the law here.
Mr. Shapiro. I was just conferring with one of my staff. I
think what you are pointing to is title two, which excludes
certain UMTRCA facilities. But those are not the facilities
that are the subject of the FUSRAP program. The FUSRAP program
facilities are subject to CERCLA.
Senator Boxer. They are? Can you point to that? Not now.
Show me in the law. Have they ever cleaned up a site that had
nuclear waste on it? Can you cite those?
Mr. Shapiro. Has the Superfund program ever done it? Yes.
Senator Boxer. Tell me what those are.
Mr. Shapiro. I can provide you with a list after----
Senator Boxer. I am talking about a similar situation, a
low-level waste. Has the Superfund come in and bailed out the
taxpayers with private sector funding, etc.
I don't expect you to have that on the tip of your tongue.
But when I read the law I don't see it the way you see it, so I
need chapter and verse of where FUSRAP is covered by Superfund,
No. 1, and No. 2, examples of where Superfund has cleaned up
low-level nuclear waste.
Now, my question goes to cost. Corps officials have
testified, Dr. Westphal, that disposal of FUSRAP material in
NRC-licensed facilities is ``more expensive by a magnitude of 2
to 10 times.'' That is not true.
I want to know when this gentleman made that testimony, was
he unaware of the fact that existing contracts between the
Corps and NRC-licensed and hazardous waste facilities have a
cost difference of $19 per cubic yard. That is essentially a
minor cost differential when you look at the transportation
issue.
So I am curious as to why is this happening? Why are we
being told it is 2 to 10 times when we have exact numbers here
to show it is less than 25 percent and when you are adding
transportation, it is even less than that.
Senator Bennett. If you will yield, Senator, my
understanding is that it is between 10 and 15 percent increased
cost.
Senator Boxer. Ten to fifteen percent increased costs for
all the safety of an operating room versus a butcher shop, to
quote an EPA official.
Dr. Westphal. Well, Senator, I don't have those figures. I
will be glad to provide them for the record. I will tell you
that in my involvement on this issue, and after speaking with
you, I have basically taken the attitude within my agency that
we are going to deal with this issue first on the issue of
safety and environmental protection and health effects, then we
are going to assess that, and we are going to determine the
economic impact after we do that.
[The requested information follows:]
The cost differential between using a RCRA Subtitle C disposal
facility permitted to accept radioactive material and using an NRC-
licensed facility under the Corps 1999 multiple award disposal contract
is only $19.00 a cubic yard or 18%, for a common category of FUSRAP
material. At the NRC-licensed facility the cost under the 1999 contract
is $103.77 per cubic yard, while at the RCRA Subtitle C facility the
cost is $84.50, which includes a $13.00 handling fee not applicable at
the NRC-licensed facility. This $103.77 per cubic yard at the NRC-
licensed facility under the current contract is a $45.73 or 30%
reduction from the $149.50 per cubic yard which the same NRC-licensed
facility charged for that category of material under a 1998 contract
negotiated by the Corps primarily for use on Superfund sites, and it is
a 52% reduction from the $215.00 per cubic yard which DOE was paying
that facility to dispose of that category of material in 1997. The
Corps believes that the difference between the price which DOE was
paying in 1997 and charges for the same services under the 1999
contract is the result of the Corps policy to utilize alternative
disposal when consistent with regulatory guidance and with protecting
public health and the environment which increased competition to
include RCRA Subtitle C facilities properly permitted to accept
radioactive materials.
However, there are larger price differences between NRC-licensed
facilities and RCRA facilities for one category of material, hazardous
waste mixed with radioactive material. Even under the 1999 multiple
award disposal contract, the lowest price for disposal of hazardous
mixed waste at the NRC-licensed facility is $457.73 per cubic yard. For
mixed waste debris, the cost may be as high as $968.80 per cubic yard
at the NRC-licensed facility. For hazardous waste mixed with low-
activity radioactive material that meets the RCRA Subtitle C acceptance
criteria, the lowest cost for disposal is $110.00 per cubic yard,
including a $13.00 handling fee not applicable to the NRC-licensed
facility. For mixed waste debris, the cost may be as high as $168.00
per cubic yard at the RCRA Subtitle C facility, including the $13.00
handling fee.
Senator Boxer. That is good. Take a look at your own
contracts. That is how we got the number. We asked to see it.
If we can look at your contracts and we can add up the
difference, you can do it, too.
The point I am making is I am glad to see you putting
health first, but I also want to say to you that if you look at
the numbers, what the Corps testified to, 2 to 10 times more,
that was Corps Chief Counsel, Robert Anderson. Maybe he is
here. His testimony before the Subcommittee of the House
Appropriation is incorrect.
If you tell House members who are fiscally concerned that
it is a 2 to 10 times more number, some people, not you,
Doctor, not I, would say, ``Well, the money has to play a
role.''
What we are saying is that we have looked at specific bids
from specific companies and you have the numbers and we don't
see that difference.
I see that my time is up. I would ask if I might put the
rest of my questions in writing to Dr. Westphal and ask that I
receive answers within a week or 10 days, if that is possible.
Dr. Westphal. Senator, may I finish one answer to the
Senator's questions?
Senator Bennett. Sure.
Dr. Westphal. Senator Boxer, we know that obviously
competition plays a factor in the cost and there are more RCRA-
type facilities than there are NRC-licensed facilities. So that
is probably related to the answer that you got.
I have asked the AAA, as I mentioned earlier in my
statement, to do an assessment of the disposal of this material
in the California site. In addition to that, I came back a few
weeks later and asked AAA, the Army Audit agency, to also look
at our contracting and business practices and to take a look to
make sure that the procedures and the processes and the
activities the Corps is employing here are appropriate to the
site.
Now, that is not to make determinations that AAA is not
capable of making determinations about the regulatory aspects
of this material. They are not scientists. They are auditors
and accountants.
Senator Boxer. Are they having public input, the AAA? That
is not the Automobile Association of America, for the interest
of the audience. It is the Army Audit Agency. Are they taking
public input?
Dr. Westphal. No. They go in. They interview a lot of
people involved in the project.
Senator Boxer. Well, the answer is they are not. I just
need to know.
Dr. Westphal. No, there is no public comment period. It is
an independent review.
Senator Boxer. Mr. Chairman, thank you. I want to thank the
panel. I still say, ``get rid of that waste in California
because now there is no one for the folks to go to if there is
a problem.''
Senator Bennett. We thank you all. We wish we had more
time. If I might, I kind of conclude where I began, the
question of who regulates the facility if the material is pre-
1978 is still very murky, at least in my mind.
All of these questions about safety and PicoCuries and
levels are important and it is worthwhile that we have spent
the time that we have talking about them, but Dr. Paperiello,
as you have said, from a scientific point of view, there is no
difference whatsoever between 1978 waste and we as a government
have allowed that issue to fall between the stools.
I am hoping, if not in this Congress certainly in the next,
we will come to grips with that and end up ultimately with a
system that is based on sound science and that says we don't
differentiate in an artificial way on the basis of dates how we
handle material.
We do, Dr. Westphal, which you say you are trying to do
administratively, put health, safety and science first, and not
worry about when the waste was generated.
Unfortunately, we in the Congress have created this
anomaly. I think it means ultimately from this panel this
morning that we in the Congress have got to step up to the
responsibility of resolving it.
Thank you all for your testimony. We appreciate your time
and the responses you will make to the written questions you
will receive.
Senator Bennett. We will now go to the second panel. We
want to advise the people in the second panel that you will not
be here as long simply because we don't have the time.
Now, in the interest of time, we will, as we did before,
ask each of you to introduce yourself rather than my going
through each of your histories. Although we do note that Mr.
Slesinger used to be a staffer of this committee, so we welcome
you back home, if you will.
We will go again in the order in which you are seated--Dr.
Scott, Mr. Adelman, Mr. Slesinger, and Mr. Thompson--and ask
you each to observe the 5-minute rule as we go along.
Dr. Scott.
STATEMENT OF MAX SCOTT, PROFESSOR, LOUISIANA
STATE UNIVERSITY
Mr. Scott. Thank you, Mr. Chairman. My name is Max Scott. I
am an Adjunct Associate Professor of Physics and Astronomy and
the System Radiation Safety Officer at Louisiana State
University.
I have a Bachelor of Science degree from Texas A&M
University, a Master's and Doctor of Philosophy degree from
Purdue University. I am a certified health physicist and a
Fellow of the Health Physics Society.
I have worked as an applied health physicist for over 39
years. For most of that time I have been involved with
radiation safety issues relating to naturally occurring
radioactive material and material similar to the majority of
FUSRAP waste.
The views I express today are solely mine. Mention Three
Mile Island or Chernobyl and most everyone can identify them.
Mention Texas City and most likely people will identify a city
in Texas. Over 500 people died in Texas City as a result of a
ship that exploded, which was loaded with ammonia nitrate. Yet
we routinely ship ammonia nitrate. I do not mean to belittle
Three Mile Island or Chernobyl, but to emphasize the fact that
there are risks in all human endeavors. For reasons that are
not clear to me, anything associated with radiation appears to
be reported more frequently and more intensely than other real
or potential hazards.
Such reporting has engendered an undue fear of radiation
and the potential health effects of exposure to radiation. I
believe that we need to protect and provide for a safe
environment and provide the degree of protection commensurately
with the scientifically defined risk, not some perceived or
extrapolated risk.
My goal today is to attempt to set out what I feel are
reasonable approaches for the disposal of NORM waste and most
FUSRAP waste. The alpha particle that is emitted when an atom
of internally deposited Radium-226 decays does not know whether
the radium atom originated in water treatment plant waste, a
phosphorogypsum stack, a FUSRAP site or scale from petroleum
production tubulars. If it has the potential to cause harm from
one source, it has the potential to cause harm from all
sources. NORM and most FUSRAP waste can be treated in a similar
manner.
As a general philosophy, I subscribe to the proposed EPA
guidance on radiation protection of the public. However, from a
practical standpoint I believe the National Council on
Radiological Protection and Measurements have prescribed annual
limits from manmade sources, which are applicable. They are one
millisievert per year continual exposure and five millisieverts
per year for infrequent exposures.
The current regulations covering the disposal of NORM waste
and FUSRAP waste are not consistent. For example, Michigan
allows bulk waste containing up to 50 PicoCuries of Radium 226
to be disposed of in Type Two solid waste landfills.
Uranium mill tailings containing unlimited quantities of
Radium-226 can be disposed of by burial. Typical quantities
range up to a few hundred PicoCuries per gram.
The Environmental Protection Agency has published
guidelines for the disposal of Radium-226 in water treatment
plant waste. Thereby, up to 2,000 PicoCuries per gram Radium-
226 can be disposed of in facilities comparable to those
developed under RCRA.
The Corps of Engineers has proposed and the Nuclear
Regulatory Commission has given tacit concurrence for the
disposal of FUSRAP waste in RCRA disposal facilities, dose to
be limited to one millisievert per year.
In my opinion, there are two approaches whereby NORM and
most FUSRAP waste can be disposed of so that the environment
and the public are afforded adequate protection.
No. 1, dispose of the waste in Subtitle C and D, RCRA
facilities at concentrations so that the average dose to an
individual member of the public does not exceed one
millisievert per year with a maximum dose not to exceed five
millisieverts per year. Guidance should be provided to assure
that the dose estimates are made using reasonable and practical
exposure scenario.
No. 2, use the EPA guidance for disposal of water treatment
plant waste utilizing municipal landfill and RCRA-type
facilities.
I encourage you to draft and support legislation, which
will provide for methods for the disposal of NORM waste and
most FUSRAP waste in a practical and uniform manner utilizing
RCRA-type facilities.
Thank you for the opportunity to express my views.
Senator Bennett. Thank you, sir.
Mr. Thompson.
STATEMENT OF ANTHONY J. THOMPSON, ATTORNEY, URANIUM RECOVERY
INDUSTRY
Mr. Thompson. Thank you, Senator. Thank you for the
opportunity to appear before you. I have represented the
domestic uranium industry during the development of the Uranium
Mill Tailings Radiation Control Act and all of the regulatory
proceedings at EPA and NRC subsequent to that and I currently
represent probably a majority of the uranium recovery
licensees.
So I am very familiar with the uranium recovery program and
11e.(2) byproduct material.
I respectfully submit that the issues here have been
somewhat obfuscated and I regret to say that it is NRC that has
obfuscated these issues in responses to the Hill.
The issue here is not whether it is pre-1978 or not. The
issue of whether something is byproduct material is determined
by the definition of 11e.(2) byproduct material that was
promulgated by Congress in the Uranium Mill Tailings Radiation
Control.
It doesn't depend on the concentration of radium or other
radionucleides in the material or of the volume of the
material. It is based on a definition.
Obviously, at the time the Mill Tailings Act was passed in
1978 all of the mill tailings in existence were pre-1978 mill
tailings.
Let me refer you to page 1 of NRC's testimony. They say
they were not directed to exercise regulatory authority over
byproduct materials that existed prior to the Mill Tailings
Act. Certainly not at DOE sites because DOE is a successor to
the Atomic Energy Commission who along with NRC had authority
and testified during the Mill Tailings hearings that it was
going to clean up the FUSRAP sites.
The problem is that there is a leap here in NRC's logic.
That comes on page 6. NRC acknowledges that DOE is going to
clean up FUSRAP materials under its Atomic Energy At authority.
On page 6, NRC says that ``These tailings produced facilities
such as FUSRAP sites, not under NRC-licensed at the time or
thereafter, have not been regulated by NRC based on
understanding NRC's authority does not extend to such
facilities and therefore we can send them to a RCRA facility.''
There is a leap there that is not explained. If the
material is 11e.(2) byproduct material, then it must go to an
Atomic Energy Act licensed facility.
Let me examine the record of NRC for just a moment. In 1980
when NRC promulgated the regulations that are implementing
UMTRCA, they included a provision 40.2(B) that says,
The commission will regulate byproduct material as defined
in this part that is located at a site where milling operations
are no longer active if such site is not covered by the
Remedial Action Program of Title One of the Mill Tailings Act.
That doesn't say NRC-licensed facility. In fact, if you
read that, it probably looks to preserve the flexibility, if
they found an orphan site, that NRC could go in and require
them to be a byproduct material license. They do that now.
If there is a mineral production facility in a State that
creates source material NRC will come in and make them get a
source material license.
Second, in a Federal Register notice in 1992, NRC stated in
discussing FUSRAP wastes,
Government contracts were issued for thorium source
material used in Manhattan engineering district and early
Atomic Energy Commission programs.
Waste resulting from that processing disposal at these
FUSRAP sites would qualify as 11e.(2) byproduct material.
DOE, in EM-0233 in April, 1995, in discussing FUSRAP
material says,
Waste types of FUSRAP sites. Much of the material resulting
from processing or recovering uranium and thorium. This waste
is a byproduct material known as 11e.(2) as defined under the
Uranium Mill Tailings Radiation Control Act of 1978.
Now, if as DOE has said, it is 11e.(2) and NRC has said it
is 11e.(2), why hasn't NRC addressed the issue of section 81 of
the Atomic Energy Act which says,
Section 81 provides that no person may possess, own,
produce, transfer or receive 11e.(2) byproduct material without
obtaining a license or other authorization from NRC.
So if this material is in fact 11e.(2) byproduct material,
if it isn't at a DOE site or taken to another DOE site, it has
to be taken to an NRC-licensed facility. A laboratory, if you
send byproduct material to analyze it, cannot analyze a cupful
of it unless it has a license.
Second, we submit, this is the uranium recovery industry,
that section 83 doesn't say anything about a temporal
limitation on byproduct material. The definition of 11e.(2)
byproduct material doesn't say anything about a temporal
limitation. It merely says if you have byproduct material now,
you are going to have to do certain things with it in the
future.
NRC has not addressed those as we have raised them with
them in a number of contexts at the agency. If we are going to
say now that risk of one is equal to risk of the other, then we
are going to throw these definitions out.
OK, if you want to throw the definitions out and start
clean, that is one thing. But keep in mind, the Congress that
EPA and NRC developed this regulatory program for, based on
their clear interpretation of the Mill Tailings Act, that they
were supposed to be very conservative standards.
You have a thousand-year design requirement, no active
maintenance, and you have a mandatory governmental custodian
under the Mill Tailings Act. Those are the significant
differences from a RCRA facility. Those cost lots of money. The
U.S. Government has appropriated and DOE has spent $1.5 billion
on Title One sites.
To close those sites in accordance with that one thousand-
year design criteria, the Uranium Mill Tailings licensees under
Title Two have spent hundreds of millions of dollars and are in
the process of spending hundreds of millions more, to satisfy
those design standards.
So if we are going to throw it out and say you can just
send it to a RCRA facility that has a 30-year post-closure
regulatory horizon, I think our people are going to want to
come and look for some of their money back.
Thank you very much.
Senator Bennett. Thank you, sir.
Mr. Slesinger.
STATEMENT OF SCOTT SLESINGER, VICE PRESIDENT, GOVERNMENTAL
AFFAIRS, ENVIRONMENTAL TECHNOLOGY COUNCIL
Mr. Slesinger. Thank you, Senator Bennett, Senator Boxer.
My name is Scott Slesinger. I am vice president for Government
Affairs of the Environmental Technology Council, a trade
association that represents the leading companies involved in
hazardous waste treatment, recycling, and disposal in the
United States and Canada.
Our members operate 20 Subtitle C landfills in the United
States, 3 of which have been selected by the Corps to take
radioactive waste from the FUSRAP program.
Today I would like to address four issues. First and
foremost, these landfills have been specifically sited,
designed, constructed and permitted to dispose of a wide
variety of low-activity radioactive waste often called NORM or
naturally occurring radioactive material waste such as those
produced during oil and geothermal explorations.
The acceptance of low-activity waste at these facilities is
not an afterthought. These facilities were designed with this
type of waste in mind.
At present in RCRA regulations these highly engineered and
highly regulated landfills contain redundant detection and
monitoring systems that have been proven so effective in
protecting human health and the environment that they have
become the gold standard for the world.
The primary concern of any RCRA landfill, be it just
hazardous waste or one that takes low-activity radioactive
waste, is to prevent any possible contamination of ground
water.
RCRA landfill disposal cells are constructed with
sophisticated liners and cap systems, which include multiple
layers of natural clay and synthetic liners, supplemented by
systems for removal of precipitation and for leak detection.
Also in Subtitle C landfills they have multiple systems
that monitor and capture all leachate produced in the cells and
pump it out for treatment. These engineering controls are in
addition to the environmental considerations that originally
led to the siting of these three facilities in arid conditions
with annual rainfall that is less than the annual evaporation.
As a result of this combination of careful siting,
sophisticated design and construction and redundant monitoring
and leap detection systems, these facilities do not pose a
threat to ground water.
In fact, when NRC looked at designing facilities, and were
told by Congress to look at how RCRA's facilities were designed
or how they should look at NRC facilities.
Second, look at the FUSRAP waste itself. This waste is
radiologically similar to other low-activity waste that had
been disposed at RCRA facilities for more than a decade.
Remember, the FUSRAP waste we are talking about is primarily
soil, concrete rubble, lumber and asbestos insulation, waste
with low mobility.
Much of the historic wastes disposed at these sites are
actually higher in radioactivity than the FUSRAP waste.
Third, each of the landfills that receive FUSRAP waste have
strict State limitation on the level of radioactivity they can
take. These facilities cannot and do not want to take low-
activity radioactive waste that requires an NRC license.
The permit limitations the States have imposed on these are
conservative in recognizing guidance prepared by the Conference
of Radiation Control Directors which required it or who policy
since 1990 is that waste above 2,000 PicoCuries of uranium,
thorium, radium and other radionucleides should go to NRC-
licensed low-level based repositories.
Furthermore, we understand that EPA in an unrelated
rulemaking has completed a risk assessment comparing NRC-
licensed low-level disposal sites, with RCRA Subtitle (C)
facilities.
Using very conservative estimates in a 10,000 year model,
EPA's analysis showed that Subtitle C facilities and NRC-
licensed low-level waste disposal facilities are equally
protected, at least with the isotopes and the radiation levels
allowed in our RCRA permits for FUSRAP waste.
A word about employee safety. Employees of RCRA Subtitle C
facilities are fully protected by specific safety training and
health monitor standards established by OSHA for hazardous
waste operation that include specific standards for protecting
workers from exposure to radiation hazards.
Worker protection elements include personal dosimeters,
medical surveillance of all field personnel, mandatory use of
respirators to protect against the inhalation of alpha
particles, NORM training with annual updates, monitoring of all
NORM-related receiving and disposal operations using three
different types of handheld radiation monitors.
I would like to respond to one point from Senator Boxer's
opening statement. Hopefully during the questions and answers I
will have time for more.
Safety-Kleen, one of our companies, mentioned this morning,
has filed for Chapter 11 protection to reorganize the company's
finances. It is important to remember that Safety-Kleen's
financial assurances for closure and post-closure of the
Buttonwillow facility remain in place and in force and that
employees are still serving their customers, all of whom send
their waste to our facilities to protect them from Superfund.
Most of the wastes that we get come to our sites because we
assure our customers that their wastes will be properly
handled. That is not changing at Safety-Kleen, even though we
are going through reorganization.
Mr. Chairman, thank you for the opportunity to present our
views. We look forward to your questions.
Senator Bennett. Thank you.
Mr. Adelman.
STATEMENT OF DAVID E. ADELMAN, STAFF ATTORNEY, NUCLEAR PROGRAM,
NATURAL RESOURCES DEFENSE COUNCIL
Mr. Adelman. Just let me thank the committee for giving me
the opportunity to testify today. My name is David Adelman. I
am a staff attorney and scientist with the Natural Resources
Defense Council, based in Washington, DC.
I have a Ph.D. in Chemical Physics from Stanford University
and a J.D. also from Stanford Law School. I am a member of the
Environmental Management Advisory Board for the Department of
Energy.
I want to begin by just setting out the major points I want
to make. First, regulation of radioactive materials should not
be contingent on the date on which it was generated. All FUSRAP
radioactive materials should be treated consistently by
disposing of them in NRC-licensed facilities.
Second, it is established law that the definition of
radioactive byproduct material adopted by Congress in 1978
extended the NRC's regulatory authority over all wastes
resulting from the extraction or concentration of radioactive
source materials, i.e., all FUSRAP wastes.
Third, under the NRC's reading of the law, no Government
entity has authority to regulate pre-1978 radioactive byproduct
wastes. State authority is preempted by the Atomic Energy Act.
The EPA cannot regulate it under the Resources Conservation
Recovery Act.
These people mentioned that FUSRAP began in 1974 to clean
up the Manhattan Project error sites and involves removing and
disposing of large quantities of hazardous and radioactive
wastes.
One thing I would like to say here is that currently the
Government is spending literally millions of dollars to clean
up these sites, to remove these hazardous and harmful
materials.
To claim that they are innocuous in some sense and at the
same time to be expending large sums of money to clean up these
facilities is a disconnect, to say the least.
The Corps took over the program in 1997 and estimates that
there are about two million cubic yards of radioactive waste at
all sites that were remediated.
So far, the Corps has disposed of approximately 2,200 tons
of radioactive wastes at the Safety-Kleen facility in
Buttonwillow, CA, another 150,000 tons at the EnviroSafe
facility in Grand View, ID, both facilities only have RCRA Part
C permits.
The NRC acknowledges that FUSRAP waste is byproduct
material under the AEA. It claims however that because this
waste was generated at unlicensed sites prior to 1978, disposal
at a licensed facility is not required.
This is a highly formalistic argument that makes no sense
legally, practically or technically. As a basic matter of
policy, regulation of radioactive waste should be based on its
hazardous characteristics, not when it was generated.
Congress adopted a new definition of radioactive byproduct
material in 1978 to extend NRC's regulatory authority over all
radioactive wastes generated in the course of the nuclear fuel
cycle.
The statute's references to active and inactive sites,
events, Congress's clear intent that the Act applied to pre-
1978 wastes furthermore, in the leading legal case, Kerr-McGee,
the court found that the purpose of the 1978 revision was to
close a regulatory gap for all uranium and thorium mill
tailings not previously regulated.
The governing case law is patently clear that all byproduct
material is subject to NRC licensing unless it is managed by
the Department of Energy.
Under the NRC's reading of UMTRCA, Congress intended the
absurd result that no government entity would have the
authority to regulation pre-1978 byproduct materials. As the
Supreme Court has held, the AEA preempts States from exercising
regulatory control over byproduct material while EPA is
precluded from regulating such materials under RCRA.
It is inconceivable that Congress intended such a
nonsensical result, namely effectively precluding the
regulation of radioactive materials it has expressly found to
pose significant threats to human health and the environment.
The NRC's position is counter to basic common sense and
technical reasoning. There is no basis to distinguish between
pre-1978 FUSRAP wastes from wastes generated after 1978,
whether legally or scientifically.
This fundamental inconsistency prompted the Conference of
Radiation Control Program directors formally to recommend that
the NRC reverse its positions on this issue because it results
in such waste being unregulated altogether, and also criticized
the Corps management of radioactive materials.
Along with the absence of proper regulatory authority,
disposing of radioactive wastes at RCRA facilities raises
significant environmental concerns including inadequate
monitoring and worker protection methods and regulations, and
far weaker long-term institutional measures to prevent future
releases and finally failure to provide an adequate public
participation process.
The NRC and the Corps are propounding a fundamentally
irrational reading of the AEA solely to save the Corps some
money, allegedly. Along with being contrary to established law
facing regulatory decisions governing radioactive waste
disposal, solely on when the waste was generated, elevates
erroneous legal ratio-
nalizing of their substantive health and safety issues and
regulatory consistency.
For these and other reasons, Congress should clarify that
UMTRCA requires all byproduct material to be disposed of at
properly licensed facilities.
Thank you very much.
Senator Bennett. Thank you.
I have to leave to go to a conference committee where I am
the chairman of the Senate side. Senator Crapo will be
rejoining us in a moment, I understand.
But let me just ask the other three members of the panel,
Mr. Adelman has summarized pretty dramatically the regulatory
situation saying Congress ought to clean this up and that the
position of the NRC, you used the word ``irrational.''
Mr. Adelman. Yes, sir.
Senator Bennett. Do the other three take exception to that?
Mr. Slesinger. I would like to make one or two comments.
First, we think that there is no logic to the 1978 date. We
agree. We think the Congress needs to relook at the issue and
essentially set a PicoCurie limit, not limits based on which
category it comes under. That would make sense.
We also think, and we have a brief that is attached to our
testimony, that Congress knew what it was doing and there was
logic in 1978 when they made the pre- and post-1978 distinction
but I don't think that is important today.
One thing I do disagree with in what Mr. Adelman said, and
which I believe contradicts what is in EPA testimony and what
all the States believe and that is there is what is called
``omnibus authority'' under RCRA for the States to put any
other conditions they want in their permits, including limiting
the number of PicoCuries.
So I don't think there is a gap. I think the States have
the authority and can use that authority to allow and protect
radioactive wastes from being disposed of anywhere.
Senator Bennett. Do either of you want to make a quick
comment?
Mr. Thompson. I guess my view is, as I said, that NRC's
position on this issue has been inconsistent, but you can't say
it is byproduct material and then say it is not subject to the
Atomic Energy Act. I mean that is just not--and if you want to
say we ought to look at risk versus definitions, that is fine.
You would have to do that with RCRA, too, because you have
listed waste versus characteristic wastes. There may be no
difference in the risk, but they are treated differently. So it
is fine to take another look at it. Just recognize the NRC
right now is inconsistent.
Senator Bennett. Thank you.
Dr. Scott.
Mr. Scott. My only comment would be that there ought to be
consistency. Dr. Paperiello pointed out that if it is a hazard,
it is a hazard. To regulate it here and not there is
ridiculous.
I would like to make one point concerning this chart up
here. Most of the FUSRAP waste falls down on the lower end of
the low-level waste. Low-level waste is a definition, not a
measurement.
So to think that we are talking about FUSRAP waste being
way out to the right end is incorrect. Thank you.
Senator Bennett. Thank you for that clarification. My
apologies for having to leave. Senator Boxer.
Senator Boxer. I think a point to be made, Dr. Scott, is
one shipment of low-level waste may get you to that point, but
if you keep getting more and more exposure, clearly there is a
definition here.
You can't argue with that. You could say what you think,
but the fact of the matter is, it would qualify as low-level if
it went all the way to the right line.
Let me just say a couple of things here. You know this
whole idea of this artificial date, and I have to say, Mr.
Thompson, you made the best point about it, and you are from
the uranium industry, you want the safest disposal. Your
testimony bears tremendous weight with me because you are the
ones that have to deal with it if it is a problem.
This whole business about Superfund, Mr. Slesinger, let me
give you a little heads up on this point. If you are counting
on Superfund bailing out some of your clients, you should know
that there are approximately 1,200 sites that are on the
Superfund list. Half of them have been cleaned up, but there
are as many as 1,400 other toxic waste sites that qualify for
placement on the list but haven't been placed on the list yet.
So just to let you know, changing this liability situation,
if in fact Superfund does apply, which our EPA friends are
going to let us know, because my reading of the law says it may
not, but they are going to check it out. But even if it was a
fact, that is relying on something that is big trouble.
So I think, you know, we need to go back and look at the
way we treated this waste. But it reminds me, if you got sick
in 1990, let's say, and there was suddenly a prescription drug
that was available and you said, OK, if you got sick after that
date you can get that good prescription drug, get the best
there is. But if you got sick before that date, you can't get
that prescription drug.
To me, you are looking at a difference here between
handling the waste in one very safe way and another way where
there are absolutely no government independent tests showing it
is safe.
Mr. Slesinger, you talked about your customers. Who are
your customers? You got very excited about your customers. Who
are your customers?
Mr. Slesinger. Out customers are most of the chemical
companies in the United States, pharmaceutical companies, the
Environmental Protection Agency where we get waste from
Superfund sites, the Corps, of course, and other people who
create hazardous wastes.
Senator Boxer. OK. Well, my customers are the people who
live around these places, OK? They are my customers. They have
absolutely no input into what happened at Buttonwillow, none at
all.
I hope the company survives because if there is trouble, we
are going after them. But they may not. You can go back in
time. I looked at a number of these sites. A lot of your
customers aren't around when the trouble starts.
So I hope for the sake of the people who live in my State
that the company does survive. I hope they survive.
Now, in your opinion, were the workers at Buttonwillow told
that they were receiving low-level nuclear wastes there before
it came?
Mr. Slesinger. They never received low-level. They received
low-activity radioactive waste.
Senator Boxer. Were they ever told they were receiving low-
activity radioactive waste because in my State they talk about
low-level, but OK, use your term. Did they know they were
getting some uranium? What were the other things? Uranium,
radium, did they know that? The workers, were they told that?
Mr. Slesinger. They were because they had been receiving it
for over a decade from the oil industry, which has been sending
drill scale----
Senator Boxer. Would you send me the documentation because
we were told the workers were not told about this shipment,
this particular shipment.
Mr. Slesinger. I don't know if they were told about this
particular shipment, but I will check with the company and see
what I can find out.
As I said, the radioactive and the risk of the materials
that came from the FUSRAP site were no different from the oil
industry waste.
Senator Boxer. Then why did they have to go and get a
permit if there was no difference?
Mr. Slesinger. Because since they have had the permit----
Senator Boxer. They got another permit.
Mr. Slesinger. The permit always said that they could take
radioactive waste up to 2,000 PicoCuries.
Senator Boxer. They got a permit from the Department of
Toxic Substances. The problem they had was they did not get one
from the Department of Health. The Department of Health in
California said, ``Don't send it.''
I mean you sit here and say this waste is lovable and
wonderful. You know, I respect your view. I happen to agree
with the view of Mr. Adelman on the point and I happen to agree
with Mr. Thompson who says, ``Look, we have done well with the
program, there is no rationale to change it, but you have a
different view, I am sure based on science; right?'' Let me
finish my point.
I am telling you that the Department of Health said stop
sending this stuff. They don't look at it the same way as oil.
Maybe you do, and that is fine. But can you point to one study
that has been done on low-level waste that shows it should be
handled the way you suggest?
Mr. Slesinger. There have been a lot of studies on
radioactive waste of the same isotopes and level of PicoCuries.
Senator Boxer. Government study?
Mr. Slesinger. Yes.
Senator Boxer. A Government independent study. Can you
direct me to it?
Mr. Slesinger. I said the risk assessment that EPA has just
completed for its mixed waste rule looks at this issue.
But I want to agree with you, Senator Boxer.
We don't say this stuff is safe and you want to roll around
in it. It is dangerous. It needs to be properly handled. It is
just as dangerous as the oil industry radioactive waste. It
needs to be handled exactly the same way. If it is under 2,000
PicoCuries, our facilities are proper for that type of
disposal.
Senator Boxer. Well, Mr. Chairman, let me just say, you
maybe read the testimony, but Mr. Thompson, who is from the
uranium industry, makes the point that there is absolutely no
rationale for treating the waste differently by picking out a
year.
I think that is where the chairman and I are coming down.
He feels that the system is working with the NRC-licensed
facility. It bears a lot of weight because he has got a lot of
the waste.
I wanted to thank the panels because I know we are going to
adjourn pretty soon.
We have had a disastrous experience in my State, quite
clearly Senator Crapo has not had such an experience in his
State. We have a situation where the people who live around the
site are not happy with what has happened.
They don't understand why all of a sudden they are being
exposed to this. They don't want to roll around in it. It was
sent there without proper permits. I am just very hopeful that
we can come up with some consistent policy here because it
doesn't make sense to pick out an arbitrary date. We could do
that in our lives and it just doesn't make sense. It is an
arbitrary situation.
Again, relying on Superfund to come up and clean up the
mess is a bad bet, because the program itself is way behind and
I think we had a much better set up when we had the DOE rules.
It just made sense. DOE stood behind it. They stand behind it.
We are going to have one big mess on our hands if we don't
straighten this out.
So I look forward to working with Chairman Bennett on this.
I want to thank the entire panel. Whether I agree with you or
not, I appreciate hearing your views.
Thank you very much, Mr. Chairman.
Senator Crapo [assuming the chair]. Thank you very much.
First of all, let me say to the panel I apologize that I
wasn't here to hear all of your testimony. I did have an
opportunity to hear some of it on the TV screen in the back
during an interview that I had to step out for.
I do have a couple of questions. I want to follow along
just on the rationale of whether the fact that a radioactive
material has the same level of comparative radioactivity means
that it should be regulated entirely the same.
Mr. Thompson, again, I haven't yet had a chance to read
your testimony, but I will. It is my understanding that you
indicated that with regard to--and I am looking at the chart,
still--I am assuming that what we are talking about is the
11e.(2) byproduct material. Am I correct there?
Mr. Slesinger. Yes.
Senator Crapo. If the 11e.(2) byproduct material is the
same, are you saying it is the same because it is the same
level of comparative radioactivity?
Mr. Thompson. What I am saying is that 11e.(2) byproduct
material is based on a definition rather than even a level of
radioactivity in it or the volume of the material. It is based
on a definition that is based on the Atomic Energy Act. If you
satisfy the definition, you are 11e.(2) byproduct material.
There is no de minimis quantity. There is no de minimis
concentration. There are more materials that contain radium
concentrations that are virtually identical with 11e.(2)
byproducts.
Senator Crapo. But they are defined differently in another
Federal statute.
Mr. Slesinger. They are not defined as Atomic Energy Act
materials, therefore they are treated differently. On a risk
basis, I would agree that they are the same type of materials.
Senator Crapo. The same as what is called ``low-level
waste'' on our chart there?
Mr. Slesinger. Many of them are exactly the same kinds of
materials that are similar in terms of radioactivity with the
NORM wastes and things like that that are not covered by the
Atomic Energy Act. It is based on a definitional difference.
Senator Crapo. So if we follow the rationale that if they
are not distinguishable based on their radioactive risk they
should be regulated the same, then should we change the entire
regulatory scheme that governs all of these wastes that are
identified there on the chart so that as you look at each level
of waste with a level of radioactive risk, and I assume we
could create ranges, then we should have an entirely new
regulatory regime that evaluates them in terms of radioactive
risk rather than whether they are TENORM or exempt source
material or low-level waste or 11e.(2) byproduct material?
Mr. Thompson. I understand that Senator Bennett and Senator
Inhofe have suggested that we ought to take a look at that. I
certainly wouldn't object to that. I wouldn't object to that at
all.
It seems to me you would have to do this in hazardous waste
areas as well because listed waste, as opposed to
characteristic hazardous waste and chemical fields are based on
definitions also, not on risk.
Senator Crapo. The point here is that they are all based on
definitions on different statutes.
Mr. Thompson. Yes, sir.
Senator Crapo. And yet they all have certain
characteristics that could be argued to be similar.
Mr. Thompson. They could be regulated the same way, yes, I
would agree.
Senator Crapo. If we took that line of reasoning, would it
be correct to say that, I assume that nobody is going to
suggest that we regulate soil in this way----
Mr. Thompson. No.
Senator Crapo [continuing]. In this way, that we make any
person who has any home garden, a farm, a plant or a place on
the earth get a permit, so that they can exist on the soil. I
don't think anybody is taking that position.
So if that is true, would we take that segment which is
identified as soil and run it down the chart there and say that
we would not want to regulate low-level waste, TENORM or exempt
source material that is down interest the category of risk of
soil?
Mr. Thompson. Well, it wouldn't be TENORM if it was just
soil. That is technologically enhanced, sir.
Senator Crapo. According to that chart there, there is some
TENORM that has the same level of radioactive risk as soil.
Mr. Thompson. But the difference is that the radiation
levels have been enhanced in TENORM through some industry
activity. But I would agree, you wouldn't regulate soil or
would you regulate farming because farming creates more radon
in the environment than any other single activity in life.
Senator Crapo. I have actually had regulators tell me that
we should regulate farmers because their wheels kick up dust
and therefore they should all be required to bet an air quality
permit. This was an air quality issue that they were talking to
me about.
Mr. Thompson. Crazy.
Senator Crapo. So the point that I am raising here is not
entirely just an extreme point to make a case. There are people
who would say this. So I want to make sure we all understand
what we are talking about here.
Now, let us assume that we go beyond the soil level here.
If we are going to start regulating in terms of comparative
radioactive risk, that one category of low-level waste has a
pretty broad band there.
Would you break that category up?
Mr. Thompson. It is broken up in a sense. There are Class
A, B, and C wastes and they depend on the activity levels. You
have more stringent requirements for the more radioactive
wastes.
Senator Crapo. Then we would do the same thing for TENORM?
Mr. Thompson. Yes. In fact, in 1983, EPA proposed to
regulate, if you will, TENORM that exceeded 2,000 PicoCuries
per gram by sending it to low-level radioactive waste
facilities.
Senator Crapo. Instead of just the narrow proposal that I
think Senator Bennett is talking about of changing the date for
the 11e.(2) byproduct material, if we undertook a massive
overhaul here, would you think that would be appropriate?
Should we do that if we look at this issue?
Mr. Thompson. I would think it made sense to look at an
overhaul. Base it on a risk basis. It is going to be a big
project.
Senator Crapo. Mr. Adelman, would you agree with that?
Mr. Adelman. Environmentalists have argued for a long time
about rationalizing this system of regulating radioactive
materials, setting up a risk-based system would be very
complicated and I think it would be certainly far superior to
what we have right now.
One point to make, though, is the comparison between the
NORM and the 11e.(2) could just as easily be made between
11e.(2) and the low-level waste. So in part what we have is a
different base line here.
Mr. Slesinger is arguing, well, we should compare the
11e.(2) to the NORM and not regulate it. We would actually say
that the NORM is actually the exception to the rule and
probably more of a historical artifact in that if we were
reasonable we would actually be regulating that and that would
be where the consistency would come from.
Senator Crapo. I understand that. I think the point that I
am trying to make is that the logical ending point of the
argument that is being put forth here today in terms of
consistency being the approach is a massive overhaul of the
entire Federal Government's approach to regulation of
radioactive material.
The question that I have come to as a result of that, and I
see my time is up. Would it be OK if I proceeded and then you
can go ahead?
Senator Boxer. Certainly. You are in charge.
Senator Crapo. Well, I like to be accommodating.
Senator Boxer. I am happy to listen and I am learning, so
please, I am not rushing anyone.
Senator Crapo. All right. The question that brings me to
then is this. Is all of this effort to obtain consistency an
effort to achieve consistency for consistency's sake or is
there a policy objective we can achieve here? Namely, it seems
to me that the ultimate objective is public health, the
environment and worker safety.
Then the question is, is the system that we have up there
with four basic, different categories, some of them with
categories within categories, is this system which may not be
internally consistent viewed from a radioactive comparison
perspective, is this system that is not consistent in that
perspective threatening the health, the environment or the
worker safety of our people in America?
Mr. Slesinger.
Mr. Slesinger. I think that if we are going to rationalize
what is what we would need to do is--we are using 2,000
PicoCuries because that is what the State said--if we could
find and we could trust the risk assessment that looked at what
the risk was, what the reasonable mismanagement scenarios were,
we could set differentiations based on those numbers.
I think then you might want to cross across those lines, in
the NRC's chart, and treat it based, again, on what the risk
is. Clearly, the higher risk you should be taking care of
differently than things that are a lot less risky.
I think that would make a much more logical way than what
the law has done, which has been based on if it was part of the
nuclear energy cycle or not or if it was used on a nuclear
weapon or not.
It should be based on ``How hot is it? How dangerous is
it?'' If it is dangerous we need to protect it more than if it
is not as dangerous.
Senator Crapo. So in other words, looking at just the low-
level line there, when you get clear out into the outer ranges
of that low-level waste, that is hotter and hotter and hotter
waste. That should be regulated differently than the lower end
of the scale for the same category of waste.
Mr. Slesinger. That is correct.
Senator Crapo. Mr. Scott, would you like to comment?
Mr. Scott. I might make a couple of comments. First, I
agree with you. I think we ought to have a uniform set based on
risks.
To give an example, Senator Boxer is concerned about the
waste that went to California. Water treatment wastes from
water treatment plants can range as high as into the 30,000
PicoCuries per gram of radium-226 and it is completely
unregulated, to the best of my knowledge.
Senator Crapo. It is not even on this chart here?
Mr. Scott. It would be TENORM.
Senator Crapo. OK.
Mr. Scott. So I think your approach is the correct one. We
should have a consistent set of limits commensurate with the
hazard.
Now, if it is a hazard, I don't care where it comes from,
it ought to be regulated. But if it is not a hazard, it
shouldn't be regulated just because it comes under some
definition that made it 11e.(2) waste or whatever.
But I emphasize that sometimes some of the regulatory
agencies have put impractical scenarios on things and they have
ratcheted levels down to where the risk of somebody actually
getting hurt is infinitesimally small.
I wish that you people would make it consistent, but make
it a practical scenario.
Senator Crapo. You mean make it consistent and use common
sense?
Mr. Scott. Yes, common sense on how you say this is a
hazard or it is not. Excuse me I will try to shut up.
Senator Crapo. Let me ask one last question then. In that
context, forgetting about all these other aspects of the chart
but just looking at the FUSRAP situation, is there a risk to
the public health, the environment, or worker safety in the
distinction that is currently in the law between the pre- and
post-1978 wastes?
I would just ask any of you to please be brief because I
have gone past my time.
Mr. Adelman.
Mr. Adelman. I think there are two basic concerns that we
have. One is that as it is defined right now, they are
currently disposing of materials at facilities that already
receive some radioactive materials. That mitigates against some
of our concerns about, for example, impacts on the workers.
Senator Crapo. Right.
Mr. Adelman. As it is defined now, that is not necessarily
the case. They could send it literally to any RCRA site because
you are defining the radioactive materials out of existence.
The second point I would like to make, and this goes to
your broader question, too, I think you have to look at this in
terms that the government, whether State or Federal, is always
contending with limited regulatory resources.
Currently, what we have right now, as NRC has admitted, is
a very fragmentary regulatory system. Effectively, what people
are seeking here is to make an already fragmentary system where
you are not regulating NORM and actually expanding that by
including materials that ought to be regulated and are
regulated if they had been generated after 1978.
So in terms of risk, I would say that given those limited
resources and the fragmentary system, we are potentially
increasing the risk because of that.
Senator Crapo. OK.
Mr. Slesinger.
Mr. Slesinger. I think that all FUSRAP waste, pre- and
post-1978, if it is less than 2,000 PicoCuries, can be
adequately and safely handled in Subtitle C landfills.
We may be able to do a study that will show that the number
that would be safe could be 3,000, 4,000, and 5,000. It may be
50,000. We believe the EPA has shown it is over 2,000.
We would think that that is the cutoff that we are
interested in because our neighbors around our facilities were
told when we built these facilities we were going to take
certain hazardous wastes, we were going to take radioactive
wastes up to this 3,000 PicoCurie level.
We would not want to go back and tell them, oh, now we are
going to go up higher because some study said that it is OK.
Senator Crapo. All right.
Mr. Thompson.
Mr. Thompson. Senator, first of all, we don't believe there
is a distinction in the law between the pre-1978 and post-1978.
But the distinction in addressing the risk of either low-
level radioactive waste as defined under the Atomic Energy Act,
or 11e.(2) byproduct material, as interpreted by EPA and NRC in
developing regulatory programs is essentially in the long-term
care aspect because of the long-lived radionucleides like
radium.
That is the two requirements that are most important are:
No. 1, you have a 1,000-unit design requirement for 11e.(2);
300 to 500 years for low-activity radioactive waste depending
upon the activity involved and you have a mandatory government
custodian in both cases.
Those are things that are not applicable to either CERCLA
or RCRA facilities.
Senator Crapo. Mr. Scott.
Mr. Scott. I don't think there is a difference. If it is a
hazard, it's a hazard.
Senator Crapo. Senator Boxer.
Senator Boxer. If I could just followup, because I think
your questions were very good. I am known for talking straight
from the shoulder, so I am going to do it.
You have a situation where you have some economic interests
that are in a little dispute over here; OK? You have the NRC-
licensed facilities versus the hazardous waste facilities. You
represent them. They are fighting over some business here. All
I care about, and I know I speak for Senator Crapo, is what is
safe.
Now, Mr. Slesinger, I am stunned that you throw out this
2,000 PicoCuries as if it is some deep study that was made. Do
you know where that comes from? The Department of
Transportation of the Federal Government says, if you carry
2,000 PicoCuries or more you have to put a plaque on your
truck.
That doesn't speak to burying this stuff. Maybe facilities
that you represent such as Safety-Kleen sit over aquifers.
So I am just saying common sense is what is needed. I agree
with that completely. It says to me, common sense for the
people, to give them the protection they need, if it ain't
broke, don't fix it.
We have a system that was put into place. It has run really
well. Ask Mr. Thompson. He is a client of it. It works. He
knows how it works. DOE stands behind it. The workers are told
directly. They take certain precautions. It works. There are
facilities that are willing to take it.
So from the standpoint of my people that I represent, I
like that system. I am very willing to look at the risks and if
you want to say ``x'' number of Curies, that raises a lot of
other issues. I say to my friend, because when they cleaned up
the Manhattan Project, there is a huge fight going on that the
contractor didn't really study and measure how hot the waste
was.
So you go into a lot of other questions of credibility and
other things. You can tell because I have, if you can tell, if
you will, burned by the way the court dealt with this,
shockingly, you know, sending this stuff to a facility that
didn't get the proper permits from the State and now refusing
to move it out because they say it is too dangerous.
You said it was not dangerous when it went in, why is it
dangerous now? You know what, incredibly, their answer is? It
got mixed up with that other hazardous waste site stuff in
there, so it is really dangerous.
Excuse me, I thought you said it wasn't dangerous. Now you
are telling me it is more dangerous because it is mixed up with
this other non-nuclear waste. That is not an answer. You are
telling me this stuff is more dangerous now in this mixed waste
facility than it was when it went in.
So I have learned from a bad experience. I am trying my
best to tell my colleagues, just like we have to with MTBE. We
got hit with it first. I am trying to tell my colleagues, don't
go California's way. I know you are working with me on this. We
have to get rid of that stuff. It has poisoned a huge amount of
our water supply.
I don't want to see colleagues coming by and saying, ``Gee,
you know, this stuff went in, it now mixed with other hazardous
wastes. It is more dangers,'' et cetera, et cetera. So I think
we have the answer in front of our noses. Keep it the way it
was before. It is not that much more expensive. We have looked
at the contracts. Make the uranium industry, I think, happier.
I would say, Mr. Chairman, I admit I came in here with a
preconceived notion. I admit that on the table, because of the
reaction over the Safety-Kleen site.
But I believe the testimony I have heard today from the
industry that is most effected, to the environmental group that
doesn't represent any clients, and I appreciate Dr. Scott's
feeling. But I do agree with him, we need uniformity, clearly.
I think everyone agrees there is not rhyme or reason to the
1978 treatment.
He would say, forget about it; everybody should be able to
take the lowest level. But at least we agree there ought to be
uniformity.
My overriding concern is safety, safety, safety, safety,
and safety. That is how I conclude it. I hope we can work
together on this.
I have no more questions.
Senator Crapo. Thank you very much, Senator. I believe we
can work together. I agree with you that our common objective
is safety, the safety of the workers, the public health, and
the environment, and just making sure that we approach the
issue properly.
We also want to thank the witnesses for their time and for
their expertise here.
I should tell you that we will keep the record open until
the end of next week. You may receive questions from some of
the Senators who were not able to attend today. We ask you to
respond to them promptly.
Senator Crapo. Unless there is anything else, this hearing
will be adjourned.
[Whereupon, at 11:53 a.m., the committee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Orrin G. Hatch, U.S. Senator From the State of Utah
Mr. Chairman, I am grateful for the opportunity to submit these
comments before the committee today. The subject of ``pre-1978 FUSRAP
waste'' has an esoteric sound to it, but it is one that warrants our
attention. I believe that our current system for regulating waste from
these Cold War nuclear and atomic sites has some gaping holes in it,
and I applaud you for holding this oversight hearing today.
I was a member of this body when the Congress enacted the Uranium
Mill Tailings Radiation Control Act (UMTRCA). We enacted this measure
because we were concerned about the health and safety consequences
associated with uranium mill tailings. We were concerned that uranium
mill tailings were not regulated by the Nuclear Regulatory Commission,
and our principal purpose in enacting UMTRCA was to confer new
regulatory authority on the NRC.
However, I now understand that the NRC has indicated that it may be
without authority to regulate tailings produced before 1978 and that
the EPA does not believe it has authority over such material. This is
rather remarkable since it often seems that EPA has a role in
regulating everything.
There are persuasive arguments that the States lack authority as
well. If all these perceptions are correct, we appear to have a
regulatory vacuum. When matters of health and safety are concerned, we
must make sure that someone is monitoring this situation and has
appropriate authority to regulate.
I want to thank the committee for addressing this important matter.
Thank you, Mr. Chairman.
______
Statement of Michael Shapiro, Principal Deputy Assistant Administrator,
Office of Solid Waste and Emergency Response, U.S. Environmental
Protection Agency
INTRODUCTION
Good morning, Mr. Chairman and Members of the Committee. I am
pleased to have this opportunity to appear before you today to discuss
the low-activity radioactive wastes from Formerly Utilized Sites
Remedial Action Program (FUSRAP) sites. My testimony will address the
authorities that EPA has over the off-site disposal of wastes from
FUSRAP sites and particularly the material referred to as 11e.(2)
byproduct material. I will be dealing with EPA's authorities under the
Uranium Mill Tailings Radiation Control Act (UMTRCA), the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA or
Superfund), the regulations and policies that we provide that pertain
to the off-site disposal of FUSRAP waste, and the Resource Conservation
and Recovery Act (RCRA).
The Formerly Utilized Sites Remedial Action Program (FUSRAP) was
established in 1974 to identify, evaluate, and remediate sites that
were contaminated as a result of the nations early atomic energy
program under the auspices of the Manhattan Engineer District and the
Atomic Energy Commission. In the FY 1998 Energy and Water
Appropriations Act, Congress transferred management of the FUSRAP
program from the U.S. Department of Energy to the U.S. Army Corps of
Engineers.
11E.(2) BY-PRODUCT MATERIAL AND THE URANIUM MILL TAILINGS RADIATION
CONTROL ACT
According to the U.S. Army Corps of Engineers, most of the material
at FUSRAP sites is residual radioactive material from the processing of
ores for source material content. This material was first defined in
the Uranium Mill Tailings and Radiation Control Act of 1978. UMTRCA's
purposes were:
(1) to provide a program of assessment and remedial action at
inactive uranium mill tailings sites, and
(2) to regulate mill tailings during uranium or thorium ore
processing at active mill operations and after active operations to
stabilize and control the tailings in a safe and environmentally sound
manner and to minimize or eliminate radiation health hazards to the
public.
UMTRCA amended Section 11e. of the Atomic Energy Act in, so that
``e. The term ``byproduct material'' means:
(1) any radioactive material (except special nuclear material)
yielded in or made radioactive by exposure to the radiation incident to
the process of producing or utilizing special nuclear material, and
(2) the tailings or wastes produced by the extraction or
concentration of uranium or thorium from any ore processed primarily
for its source material content.''
UMTRCA also delineated regulatory responsibility for 11e.(2)
material. EPA was given the responsibility to establish standards for
the protection of public health, safety, and the environment from
radiological and non-radiological hazards associated with the
processing, possession, transfer, and disposal of 11e.(2) byproduct
material. These regulations appear in 40 CFR Part 192. UMTRCA gave the
responsibility for implementing and enforcing EPA's regulations to the
Nuclear Regulatory Commission. NRC has issued regulations in 10 CFR 40
that implement our standards and set forth criteria for licensing and
operation of uranium processing facilities.
We understand that NRC has interpreted its UMTRCA jurisdiction as
being limited to regulating 11e.(2) material generated only at a site
licensed by NRC. Because FUSRAP sites were not licensed during their
operations, NRC does not believe it has jurisdiction to apply its
regulations, or implement ours, for disposal of 11e.(2) material
resulting from FUSRAP cleanups. NRC also has said that they ``believe
that USACE FUSRAP activities are governed by CERCLA requirements in a
manner which protects health and safety, and we do not see a need to
ask Congress to provide regulatory authority to the NRC [over CERCLA
on-site response actions.]'' \1\
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\1\ Letter from Shirley Ann Jackson, NRC Chairman to Stephen C.
Collins, Conference of radiation Control Program Directors, Inc., May
3, 1999.
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SUPERFUND AUTHORITIES OVER THE FUSRAP PROGRAM
Of the 23 remaining FUSRAP sites requiring clean up, 7 are on the
Superfund National Priorities List.\2\ For these sites, EPA and the
Corps must approve the Record of Decision, which specifies the final
remedy selected for a site. For the other (non-NPL) FUSRAP sites, the
Corps does not have to receive EPA approval of the Record of Decision.
The Superfund National Oil and Hazardous Substance Pollution
Contingency Plan (NCP) provides for efficient, coordinated, and
effective response to discharges of oil and releases of hazardous
substances, pollutants and contaminants. It establishes the procedures
for undertaking response actions under CERCLA. Section 611 of the
Energy and Water Development Appropriations Act of 2000 States that the
Corps shall undertake cleanup of these sites under CERCLA, including
the NCP. EPA has been involved in the review of some non-NPL sites at
the request of the Regions or USACE.
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\2\ Latty Avenue Properties (This one FUSRAP site is listed as two
NPL sites: Futura Coatings and Hazelwood Interim Storage Site),
Hazelwood, Missouri; Shpack Landfill, Norton, Massachusetts; St. Louis
Airport Site, St. Louis, Missouri; St. Louis Airport Site Vicinity
Properties, St. Louis, Missouri; Maywood Interim Storage Site, Maywood,
New Jersey; Wayne Interim Storage Site, Wayne/Pequannock, New Jersey;
Middlesex, Sampling Plant, Middlesex, NJ.
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The Off-Site Rule
Part of the NCP is the Off-Site Rule (40 CFR 300.440). This rule
implements the requirements of CERCLA 121(d)(3). CERCLA 121(d)(3)
requires that waste removed under Superfund only go to a facility that
is in compliance with Federal and applicable state disposal
requirements, and be disposed of at a unit that is not releasing any
hazardous waste, or constituents thereof, into the groundwater or
surface water or soil. This rule has three main requirements for
facilities receiving Superfund waste.
(1) The receiving facility must be in compliance with RCRA or other
applicable Federal or State requirements.
(2) At hazardous management facilities, the waste management unit
receiving these wastes must not currently and should not be expected to
release contaminants into the environment. Any releases from other
units at the facility must be controlled.
(3) At other than hazardous waste management facilities,
environmentally significant releases must be controlled.
To ensure that the waste removed under the NCP goes to a disposal
facility that meets these requirements, the party performing the
cleanup should contact the EPA regional office for the region where the
disposal facility is located, and request a determination under the
Off-Site Rule. When EPA receives a request for a determination under
the Off-Site Rule, the Regional Office must determine whether the
facility meets the requirements of the rule. If there is no standard,
such as a regulation or a permit condition for a particular waste, then
the facility is not in violation if it accepts that waste. If a
facility is found in violation of a standard, then EPA notifies the
facility, and the State, of the unacceptability. Once a facility has
removed the cause of this unacceptability, EPA can make a determination
that it can accept Superfund waste. If a facility has a violation that
cannot be undone, such as an unpermitted air emissions release, then
for the facility to again become acceptable, it must complete all
actions that EPA determines are necessary to rectify the violation,
e.g. paying all penalties, and prevent recurrences.
RESOURCE CONSERVATION AND RECOVERY ACT APPLICABILITY TO 11E.(2)
MATERIAL
Under RCRA, EPA regulates solid and hazardous waste. Hazardous
wastes are a subset of solid wastes that may cause or significantly
increase illness, or may pose a hazard to human health or the
environment when improperly managed. To be regulated as a hazardous
waste, a material must first meet the definition of a solid waste, in
other words, RCRA only allows EPA to regulate materials that are solid
wastes.
The RCRA statutory definition of solid waste excludes ``source,
special nuclear and byproduct material as defined by the Atomic Energy
Act.'' See 42 U.S.C. 6903(27). Therefore, materials meeting the AEA
definition of byproduct material (which includes Section 11e.(2)
material) are not regulated under RCRA, because those materials are not
solid waste. To date, EPA has not distinguished between the kinds of
material referred to in Section 11e.(2) generated before 1978 and such
material generated after 1978, and EPA does not regulate any of this
material under RCRA. EPA can regulate the hazardous waste components of
wastes that contain mixtures of 11e.(2) material and RCRA hazardous
wastes.
EPA's regulations do allow the disposal of non-hazardous wastes, in
this case, 11e.(2) wastes, at hazardous waste facilities. Unless
prohibited by some other regulation or permit condition, wastes that
are not hazardous can be disposed of at a hazardous waste landfill.
This allows companies to dispose of non-hazardous wastes at hazardous
waste facilities with generally more controls than a municipal solid
waste landfill, or an industrial non-hazardous waste landfill. Unless
otherwise precluded, States authorized to operate the program under
RCRA can, however, regulate material that is not regulated as hazardous
at the federal level. Their regulations can be broader in scope than
EPA's regulations, or they can be more stringent. States can, for
example, establish standards for the disposal of specific types of
federally unregulated radiological material (i.e., NORM, exempt, or
``unimportant quantities''). In addition, state standards may be more
stringent than federal standards. This provides flexibility to the
States to fashion a regulatory program that responds to their
particular situation so long as it is at least as stringent as the
federal program.
CONCLUSION
In its FUSRAP cleanups, the Corps must follow the provisions of the
National Oil and Hazardous Substances Pollution Contingency Plan, which
includes the Off-Site Rule. Under the Off-Site Rule, 11e.(2) waste
cleaned up under CERCLA authorities must be disposed of at a site that
meets applicable, if any, standards for this material, as well as the
other requirements of the rule. 11e.(2) byproduct material is outside
of the scope of the Resource Conservation and Recovery Act, since by
statute it is neither a solid nor a hazardous waste.
Mr. Chairman, thank you for this opportunity to address the
Committee. I would be pleased to answer any questions you or the other
Senators may have.
______
Responses by Michael Shapiro to Questions From Senator Smith
Question 1. The EPA drafted a proposed rule this spring that
discussed options for the disposal of low-activity mixed waste. The
proposed rule specified conditions under which a RCRA subtitle C
facility may accept certain mixed radioactive waste for disposal. Has
the Agency determined that there is some level of radioactivity at
which the risk posed by the material can be properly safeguarded when
disposed of in a RCRA subtitle C facility?
Response. EPA has examined the potential for disposing of low-
activity mixed waste in RCRA subtitle C facilities as background for a
possible rule to identify safe disposal alternatives for some
commercial mixed wastes. The draft proposed rule prepared by EPA has
not been published in the Federal Register for public comment. EPA is
evaluating concentrations of radionuclides in NRC-regulated mixed waste
that would be acceptable for disposal in subtitle C facilities,
provided certain other conditions were met. Under EPA's proposed
approach, although EPA would maintain RCRA authority over the hazardous
qualities, NRC would maintain Atomic Energy Act (AEA) authority over
the radioactive qualities of mixed waste that qualified for disposal.
(See also: answer to question 4 regarding when it would be acceptable
to dispose of these wastes in a RCRA facility.)
Question 2. What methods did the Agency use in establishing
radionuclide concentration limits?
Response. EPA is assessing the long-term performance of disposal
sites (i.e., evaluating potential impacts to groundwater or potential
exposures to nearby residents from radionuclides escaping the disposal
cell) and from potential exposures to RCRA facility workers.
Question 3. Under the proposed rule, what are the instances that
EPA has determined that the disposal of mixed radioactive waste in a
RCRA facility is acceptable?
Response. EPA's unpublished draft proposal focuses on commercial
mixed waste that is regulated by the NRC. If and when EPA promulgates a
rule, NRC would need to issue requirements applicable to RCRA
facilities that choose to accept low-activity mixed waste and have an
oversight role at these facilities. There may be other administrative,
procedural, or substantive requirements deemed appropriate for these
facilities, but these would be determined through the rulemaking and
implementation processes.
Question 4. What studies/risk assessments exist comparing NRC low-
level radioactive waste disposal sites with EPA subtitle C facilities
for the disposal of radioactive wastes?
Response. The risk assessment supporting the draft proposal is not
final and is subject to change.
EPA has published a proposal that would allow certain mixed wastes
to be disposed of in NRC or Agreement State licensed low-level
radioactive waste (LLW) facilities without a RCRA permit (64 FR 64364,
November 19, 1999). To support this proposal, EPA qualitatively
compared the regulatory requirements and physical characteristics for
existing RCRA subtitle C and licensed LLW disposal facilities. However,
these comparisons were performed to assess whether the LLW disposal
facilities would provide protective disposal for the hazardous
constituents in mixed waste treated to meet the RCRA Land Disposal
Restrictions.
NRC developed and issued a Branch Technical Position (BTP) that
sets forth conditions under which electric arc furnace dust
contaminated with cesium-137 could be disposed of in subtitle C
facilities (62 FR 13176, March 19, 1997). NRC conducted a risk
assessment to support the BTP, which EPA reviewed. This assessment also
focused on the protectiveness of subtitle C facilities for this
particular material, not on a comparison of performance with licensed
LLW disposal facilities.
EPA and NRC have collaborated on guidance for siting and design of
mixed waste disposal facilities, with the intent that dedicated mixed
waste disposal facilities would satisfy both agencies' regulatory
requirements and performance goals. See OSWER Directives 9480.00-14
(``Combined EPA-NRC Siting Guidelines for Disposal of Mixed Low-Level
Radioactive and Hazardous Waste,'' June 1987) and 9487.00-8 (``Joint
EPA-NRC Guidance on a Conceptual Design Approach for Commercial Mixed
Low-Level Radioactive and Hazardous Waste Disposal Facilities,'' August
1987).
Question 5. Is the public notified of each individual shipment of
waste to facilities that are permitted by your agency?
Response. EPA's RCRA regulations do not require notification of the
public before each shipment of hazardous waste to a permitted facility.
Notification of the types of hazardous waste that a facility can accept
is part of the public participation process when the facility applies
for a permit. However, RCRA facilities are required to keep records of
the description and quantities of each hazardous waste received at the
facility. (See 40 CFR Part 264.73(b)(1))
Question 6. Is a RCRA subtitle C closure considered to provide
permanent protection from the hazardous substances contained therein?
Does the regulatory 30 [year] monitoring period indicate that closure
is protective to the public for only 30 years?
Response. EPA considers its closure requirements to provide
permanent protection from hazardous waste disposed of at RCRA Subtitle
C facilities. The post-closure care period is for 30 years unless
changed by the permitting authority. EPA recognizes that facility-
specific conditions may exist that would support a post-closure care
period of longer than 30 years to ensure permanent protection. At any
point before the end of the post-closure period, the permitting
authority can extend the post-closure period if necessary to protect
human health and the environment. We would expect the permitting
authority to extend the period where the unit still poses a significant
threat to human health and the environment.
The requirement for a 30-year post-closure care period originated
in RCRA regulations first promulgated in 1980. Therefore, no facilities
have yet reached their 30-year time limit. Permitting authorities are
still obtaining information on the performance of land disposal
facilities, including ground water or leachate monitoring results. This
information will prove valuable for permitting authorities who will
determine whether it is necessary to extend the post closure care
period for individual facilities.
Question 7. Regarding financial assurances at the Safety-Kleen
Buttonwillow facility, has EPA assessed the financial circumstances or
the reliability of the financial assurances provided under the permit?
Response. The State of California is authorized to operate the RCRA
hazardous waste program, which includes the financial responsibility
requirements. For the Safety-Kleen Buttonwillow facility, the financial
assurance is provided by an insurance policy from the Reliance
Insurance Company of Illinois. EPA is aware that on August 2, 2000, the
California Department of Insurance removed Reliance Insurance from the
List of Eligible Surplus Line Insurers so that they are no longer
eligible to write new or renewal business in California as of that
date. We understand that the California Department of Toxic Substances
and Control is aware of this information and is determining whether
Safety-Kleen will have to obtain a new financial assurance instrument
forthis facility.
Question 8. Is there anything additional from the hearing that you
would like to respond to, clarify or expand on? If so, please do so
now.
Response. Paraphrased below are questions Senator Boxer asked
during my testimony to the Senate Environment and Public Works
Committee on July 25, 2000 that I would like to respond to in this
letter.
Does EPA have the authority to expend Superfund Fund monies to pay
for addressing FUSRAP wastes? Isn't this material exempt under the
definition of release in CERCLA section 101?
Section 101(22) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 as amended (CERCLA) exempts
from the definition of ``release'', any release of source, byproduct,
or special nuclear material from any processing site designated under
section 102(a)(1) or 302(a) of the Uranium Mill Tailings Radiation
Control Act of 1978 (UMTRCA). Section 102(a)(1) refers to 24 uranium
mill tailing sites that were inactive at the time UMTRCA was enacted,
while section 302(a) refers to several uranium mills in New Mexico. We
do not believe that this language prohibits actions under CERCLA at
Formerly Utilized Sites Remedial Action Program (FUSRAP) sites and does
not prohibit EPA from expending Superfund Fund monies to pay for
response actions to address the type of waste found at FUSRAP sites. It
appears that none of the FUSRAP sites are also sites designated under
either section 102(a)(1) or 302(a) of UMTRCA. Therefore, the exemption
under the definition of release for CERCLA would not apply to FUSRAP
sites.
In addition, radionuclides are designated generically as hazardous
air pollutants by Clean Air Act (CAA) section 112, and CERCLA section
101(14)(E) defines the term ``hazardous substance'' to include CAA
hazardous air pollutants. Appendix A to 40 CFR 302.4 lists a large
number of radionuclides that are considered hazardous substances,
including those that are primary contaminants of concern at FUSRAP
sites (e.g., radium-226, radium-228, thorium-230, thorium-232, uranium-
234 and uranium-238). CERCLA gives EPA the authority to clean up
releases of hazardous substances.
At what non-FUSRAP sites has CERCLA authority been used to address
11e(2) waste?
Non-FUSRAP sites with 11e(2) waste, or potential 11e(2) waste,
which are being addressed under CERCLA authority include but are not
limited to: Lindsay Light II, Chicago, Illinois; Kerr-McGee, Illinois;
Weldon Spring Quarry, Missouri; and Fernald, Ohio.
______
Responses by Michael Shapiro to Questions From Senator Boxer
Question 1a. In your oral testimony, you stated that ``RCRA
hazardous waste landfills are designed to be highly protective disposal
facilities and therefore may be suitable for the disposal of certain
low-activity radioactive wastes.'' (a) Please provide any EPA or other
environmental impact study or risk assessment that supports this
statement.
Response. EPA is evaluating the potential risks from the
conditional disposal of low-activity mixed wastes in RCRA subtitle C
landfills. This risk assessment has not been finalized.
As noted in the answer to Question 5 from Senator Smith, NRC
developed and issued a Branch Technical Position (BTP) that sets forth
conditions under which electric arc furnace dust contaminated with
cesium-137 could be disposed of in subtitle C facilities (62 FR 13176,
March 19, 1997). NRC conducted a risk assessment to support the BTP,
which EPA reviewed. This assessment also focused on the protectiveness
of subtitle C facilities for this particular material, not on a
comparison of performance with licensed LLW disposal facilities.
EPA has developed a draft document entitled ``Suggested Guidelines
for Disposal of Drinking Water Treatment Wastes Containing
Radioactivity,'' which was mentioned in testimony prepared for the
hearing, but which has not been finalized.
Question 1b. Please provide references to EPA's authority to permit
RCRA facilities to handle and dispose of radioactive waste. If none
exist, please indicate.
Response. RCRA provides EPA the authority to regulate solid and
hazardous waste. The statute specifically excludes from the definition
of solid (and therefore hazardous) waste ``source, special nuclear, or
byproduct material as defined by the Atomic Energy Act of 1954, as
amended.'' EPA's regulations under RCRA, however, do not preclude
materials that do not meet the definition of ``solid waste,'' such as
``source, special nuclear, or byproduct material,'' from being disposed
of at a RCRA facility.
Question 2. Please provide federal legal citations to the criteria
governing the siting of hazardous waste facilities.
Response. The statutory provisions that relate to the siting of
hazardous waste facilities are found in 42 U.S.C. 6924(a) and (b) and
6925(b) and (j). The regulatory requirements are found at 40 CFR 264
and 265, especially 264.18 and 265.18, and 40 CFR 270.41.
Question 3. Please provide the federal legal citations to the
public notice requirements that attend the permitting of a hazardous
waste facilities under RCRA, as well as the public notice requirements
that attend the modification of hazardous waste facility permits under
RCRA.
Response. The statutory provision governing public participation
during the RCRA hazardous waste permit process is 42 U.S.C. 6974(b)(2).
The regulatory requirements for public notice appear in 40 CFR 124
Subpart A & B, and for modifications in 40 CFR 270.42.
Question 4. Is there any federal environmental or public health
legal standard which establishes a level below which radioactive
materials may be disposed of in RCRA hazardous waste disposal
facilities?
Response. EPA has no standard establishing a level below which
radioactive materials may be disposed in RCRA hazardous waste disposal
facilities.
In general, existing federal requirements for disposal of
radioactive waste are based on the definition of the waste, not on risk
or activity levels. We understand that NRC sometimes establishes levels
for waste not requiring disposal in an NRC-licensed facility; however,
such waste is not necessarily eligible to be disposed of in RCRA
facilities. The state or other regulatory jurisdiction may have
restrictions on such disposal. The Department of Energy has internal
directives serving a similar purpose for its radioactive wastes.
For example, the NRC has published a staff branch technical
position covering the disposal of emission control dust from electric
arc furnaces or foundries (a hazardous waste identified as K061) that
has been contaminated with cesium-137. Because this waste is both a
RCRA hazardous waste and radioactive, it is a mixed waste. ``The
position provides the bases that, with the approval of appropriate
regulatory authorities (e.g., State permitting agencies) and others
(e.g., disposal site operators), and with possible public input, could
be used to allow disposal of stabilized waste at subtitle C, RCRA-
permitted, hazardous waste disposal facilities.'' See 62 Federal
Register 13176 to 13198 (March 19, 1997).
Question 5a. Dr. Paperiello of the NRC stated in his oral testimony
that workers at an NRC-licensed facility are legally permitted to be
exposed to 5 rem of radiation per year, and that this exposure is with
the informed consent of the workers. He goes on the state that in the
NRC's view, the workers at a hazardous waste facility would be limited
to 100 milirem of exposure per year.
Does EPA have standards, regulations or other guidance concerning
worker exposure and informed consent for hazardous waste facilities?
Response. EPA does not have standards or guidance that govern
worker protection from radiation at hazardous waste facilities.
Question 5b. Are workers at RCRA facilities that handle radioactive
materials given full radiation specific protective gear, as would be
the case at NRC-licensed facilities?
Response. EPA has not established requirements for the disposal of
radioactive material at a RCRA subtitle C facility and generally does
not establish worker standards for hazardous waste over and above the
need for health and safety plans and training. The determination as to
whether workers that handled radioactive material at RCRA facilities
would be required to have full radiation specific gear as would be the
case at an NRC-licensed facility would need to be established based on
OSHA standards as well as any State-specific standards that the
facility may be required to meet.
Question 5c. Should the level of protection for RCRA workers be the
protective risk range of 10-6 to 10-4 excess cancer risk as required
under CERCLA?
Response. EPA defers to OSHA regarding the level of protectiveness
which is appropriate for worker protection.
Question 6. The 100 milirem level identified by the NRC (discussed
in question 6) greatly exceeds (by 70-7,000) the protection risk range
required under CERCLA. Corps FUSRAP cleanups are required to comply
with CERCLA. If the 100 milirem standard is in fact being applied by
the Corps, isn't the Corps not complying with CERCLA?
Response. CERCLA cleanups are governed by the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP) which provides
the regulatory framework for response actions. The NCP does not
establish guidelines for the protection of the response workers at
sites being cleaned up under CERCLA authority or at sites where CERCLA
waste is disposed. The cleanup levels in the NCP apply to the
reasonably anticipated future land use which includes workers that are
not associated with the response activities. EPA under Superfund, as
under RCRA, defers to OSHA regarding standards that would apply to
response workers at CERCLA or waste disposal sites.
Question 7. In your oral testimony, you stated that ``[u]nder the
provisions of the State permit there normally are financial assurance
requirements that would be in place to cover the clean up and closure
of the facility.'' What are the financial assurances and the duration
of those assurances required under RCRA? Are there circumstances under
which a facility operator does not need to provide such assurance?
In response to questions from Senator Crapo on this issue, you
responded that typically a hazardous waste facility operator has a
financially guaranteed promise of some kind to deal with post-closure
monitoring and cleanup. How long do such financial guarantees last? How
long do the radionuclides involved in FUSRAP cleanups remain active in
the environment?
Response. A RCRA hazardous waste disposal facility must demonstrate
financial assurance for the costs of closure and post-closure care. The
post-closure care period begins after the closure of the facility and
is for 30 years, or an alternative period specified by the permitting
authority. At any point before the end of the post-closure period, the
permitting authority can extend the post-closure period if necessary to
protect human health and the environment.
The requirement for a 30-year post-closure care period for disposal
facilities originated in RCRA regulations first promulgated in 1980.
Therefore, no facilities have yet reached their 30-year time limit. At
this time, permitting authorities are still obtaining information on
the performance of land disposal facilities, including ground water
monitoring results for active and closed facilities. This information
should prove valuable for permitting authorities who in the future will
determine whether it is necessary to extend the post closure care
period for these facilities.
In addition, during the active life of a disposal facility it must
demonstrate financial assurance for sudden and non-sudden liability
coverage.
EPA does not impose these financial assurance requirements on
States' and the federal government's disposal facilities.
The primary radionuclides in FUSRAP waste are isotopes of uranium,
thorium, and radium. The most common uranium isotopes have half-lives
of at least hundreds of thousands of years, while the more common
thorium isotopes have half-lives of at least tens of thousands of
years. The primary radium isotopes have half-lives of 1,600 (Ra-226)
and 5.77 (Ra-228) years.
Question 8a. In discussing the Buttonwillow case, Dr. Westphal
stated that so long as the radioactive waste shipped to Safety-Kleen
averaged 2,000 picocurie/gram or less it met the requirements of the
permit. (``But again, we are talking about averages, so they average
2,000 with one peaking above 2,000. The Buttonwillow facility is
permitted to accept an average of 2,000. So it can accept some material
that may have peaked higher, but on the average it can't be higher than
2,000.'')
As you know, the validity of that permit term has been contested by
the California Department of Health Services. That notwithstanding,
nothing in the permit specifically allows the use of averaging to meet
this permit condition. The use of averaging, depending on how it is
applied, could render even the 2,000 picocurie/gram limit meaningless
since it would enable the Corps to ship radioactive materials
significantly higher than 2,000 picocuries by diluting the radioactive
content with non-radioactive material.
On this issue, Senator Bennett posed a question to Dr. Paperiello
that Dr. Paperiello could not answer. Senator Bennett asked what would
happen if a shipment received at a facility was as hot as 4,700
picocuries but on average fell below 2,000 picocuries. In particular,
Senator Bennett asked whether 4,700 picocurie material would have to be
separated from the remaining material or whether it could, in effect,
be diluted by less radioactive material and thereby averaged to meet
the permit condition. Dr. Paperiello ``[i]n terms of how you deal with
heterogeneous distribution, which is quite common, it would depend an
awful lot on how the receiving facility was permitted . . . I just
don't know when a facility is permitted to receive material up to 2,000
picocuries per gram . . . I don't know how they deal with
heterogeneity.''
Please provide any EPA regulation, guidance or other document which
provides how and whether RCRA facilities may or may not average in this
manner.
Response. The RCRA regulations do not specify criteria for
radioactive waste. Our understanding is that the permit for
Buttonwillow is silent on the issue of averaging radioactivity levels.
Question 8b. Please provide any written authorizations or legal
authority from the State of California which permits such averaging.
Response. EPA does not have information on California's authorities
regarding averaging of radioactivity measures.
Question 9. In his oral testimony, Scott Slesinger stated that ``we
understand that EPA in an unrelated rulemaking has completed a risk
assessment comparing NRC-licensed low-level disposal sites with RCRA
subtitle C facilities.'' It was my understanding that such a rulemaking
is no longer being conducted. Is that correct? If not, what is its
status? Please provide the risk assessment referred to in Mr. Scott
Slesinger's testimony.
Response. The draft rule referred to by Mr. Slesinger has not been
proposed for public comment and the risk assessment has not been
finalized or released to the public. EPA is still considering a rule
that would establish conditions under which subtitle C facilities could
accept low-activity mixed waste for disposal. As part of any
rulemaking, EPA will conduct a risk assessment to evaluate the
potential impacts of subtitle C disposal of low-activity mixed waste.
EPA has not directly compared the performance of NRC and RCRA disposal
facilities. EPA would rely on NRC to issue any additional regulations
that would be necessary beyond what RCRA requires to implement safe
conditions for mixed waste disposal at RCRA facilities that choose to
accept low-activity mixed waste. The risk assessment has not been
released to the public.
Question 10. Do you agree that radioactive waste, wherever it is
disposed of, should be disposed of to protect groundwater to at least
the Maximum Contaminant Levels under the Safe Drinking Water Act, as is
required under CERCLA?
Response. EPA believes that ground waters should be monitored and
protected at waste disposal sites to ensure beneficial use and this
includes ensuring that MCLs established under SDWA are not exceeded,
where ground waters are a current or potential source of drinking
water.\1\
---------------------------------------------------------------------------
\1\ See 40 CFR 264 Subpart F for ground water monitoring
requirements to detect contamination at RCRA facilities.
Question 11. If FUSRAP waste is permitted to be disposed of in non-
NRC licensed facilities, how do we ensure that the disposal of such
waste does not lead to the recipient facility becoming a future
Superfund site?
Response. EPA is concerned that the disposal of wastes as a result
of a CERCLA cleanup does not itself result in a future Superfund site.
To address this concern, CERCLA waste disposed of off-site must comply
with the Off-Site Rule (40 CFR 300.440). Because the USACE was directed
to address FUSRAP sites under CERCLA authority in its 1999
appropriations, the wastes from these sites are subject to the Off-Site
rule. This rule implements the requirements of CERCLA 121(d)(3). CERCLA
121(d)(3) requires that waste removed under Superfund only go to a
facility that is in compliance with Federal and applicable state
disposal requirements, and be disposed of at a unit that is not
releasing any hazardous waste, or constituents thereof, into the
groundwater or surface water or soil. This rule has three main
requirements for facilities receiving Superfund waste.
a. The receiving facility must be incompliance with RCTA or other
applicable Federal or State requirements.
b. At hazardous management facilities, the waste management unit
receiving these wastes must not currently and should not be expected to
release contaminants into the environment. Any releases from other
units at the facility must be controlled.
c. At other than hazardous waste management facilities,
environmentally significant releases must be controlled.
To ensure that the waste removed under the NCP goes to a disposal
facility that meets these requirements, the party performing the clean
up should contact the EPA regional office for the region where the
disposal facility is located, and request a determination under the
Off-Site Rule. When EPA receives a request for a determination under
the Off-Site Rule, the Regional Office must determine whether the
facility meets the requirements of the rule. If there is no standard,
such as a regulation or a permit condition for a particular waste, then
the facility is not in violation if it accepts that waste. If a
facility is found in violation of a standard, then EPA notifies the
facility, and the State, of the unacceptability. Once a facility has
removed the cause of this unacceptability, EPA can make a determination
that it can accept Superfund waste. If a facility has a violation that
cannot be undone, such as an unpermitted air emissions release, then
for the facility to again become acceptable, it must complete all
actions that EPA determines are necessary to rectify the violation,
e.g., paying all penalties, and prevent recurrences.
Question 12. Do RCRA facilities generally have site-specific
meaningful public participation to ensure that the public is adequately
informed if radioactive waste that will be received? What requirements
are there for this kind of meaningful public participation for the pre-
1978 11e.(2) waste?
Response. RCRA facilities have public participation requirements
for hazardous waste. EPA's RCRA regulations do not require notification
of the public before each shipment of hazardous waste to a permitted
facility. However, notification of the types of hazardous waste that a
facility can accept is part of the public participation process when
the facility applies for a permit. These requirements generally do not
apply to wastes, such as 11e.(2) byproduct material, that are not
hazardous waste.
______
Responses by Michael Shapiro to Questions From Senators Baucus
and Graham
Question 1. As a policy matter, what do you believe is the
appropriate dividing line between NRC and EPA jurisdiction when it
comes to regulating the disposal of low-activity radioactive waste
materials? Should the NRC regulate those materials associated with the
nuclear fuel cycle, leaving to EPA the regulation of other materials?
Response. EPA has not taken a position as to whether additional
jurisdictional boundaries are necessary to govern low-activity
radioactive waste material. For those materials that are subject to
regulation currently, EPA appropriately has the responsibility and
authorities to establish standards to protect public health and the
environment. Under these authorities, EPA has already issued, or will
issue, regulations applicable to nuclear fuel cycle material (see 40
CFR parts 190, 191, and 192, and the proposed 40 CFR part 197). EPA's
regulations in these areas are typically implemented by NRC. EPA has
found this division of responsibilities satisfactory.
Question 2. EPA's position seems to be that EPA is not authorized
to regulate FUSRAP mill tailings under RCRA because the tailings are
``byproduct material'' under the Atomic Energy Act. Given that the NRC
has taken the position that it cannot regulate the tailings either, are
you comfortable with a regulatory system under which those tailings are
regulated under neither the Atomic Energy Act or RCRA?
Response. EPA believes that there should be regulatory oversight to
ensure that these wastes are managed appropriately. In situations where
States have not filled the gap with an appropriate regulatory program,
EPA would be concerned about the potential for mismanagement.
Question 3. It has been argued that the States are preempted from
regulating FUSRAP material. What is EPA's position regarding that
argument? And, if there is any preemption involved, would that affect
your answer to the preceding question?
Response. EPA is not familiar with the argument that ``States are
preempted from regulating FUSRAP material.'' Therefore we cannot speak
to this directly. It may be that the reference is to the status of
FUSRAP wastes under RCRA, if it also meets the AEA definition of
byproduct material. Generally, RCRA does not preempt state authority to
regulated solid and hazardous waste. However, because RCRA excludes
byproduct material from the definition of solid waste, a state cannot
regulate this material as part of its RCRA authorized program. However,
RCRA does not preclude States from regulating this byproduct material
under other state or federal authorities. If the reference is to the
AEA's preemptive effects on States, EPA believes that the question is
more appropriately addressed by the NRC.
Question 4. What would you guess is the basis for the adoption of a
2,000 picocurie limit on waste activity?
Response. It appears that the 2,000 picocurie limit in the
Buttonwillow permit is based on a United States Department of
Transportation regulation. In the permit the following language
appears:
``C. Prohibited Wastes
1. The Permittee shall not accept the following wastes and
materials at the Facility: [H&S Code 25202]
a. Radioactive materials which either require special placarding
because they exceed 2,000 picocuries/gram of activity as referenced in
49 CFR 173.403(y) or are defined as ``NRC regulated source materials''
as referenced in H&S Code 25805(m).''
The Department of Transportation has set 2,000 pCi/g as the
threshold for placarding shipments as including ``radioactive
material'' (see 31 FR 6492, April 29, 1966). This standard was adopted
by DOT to increase harmony with international agreements, and was based
on the International Atomic Energy Agency (IAEA) guidance entitled
``Safety Series No. 6: Regulations for the Safe Transport of
Radioactive Materials, 1964 Revised Edition'' NRC also adopted IAEA's
2,000 pCi/g limit (see 10 CFR Part 71).
DOT (see 64 FR 72633, December 28, 1999) and NRC (65 FR 44360, July
17, 2000) have issued notices that the two agencies are considering
rulemakings to amend their 2,000 pCi/g limits to harmonize with an
updated IAEA 1996 guidance. Rather than the single 2,000 pCi/g limit,
IAEA's 1996 guidance provides radionuclide specific activity levels
based on a 1 mrem/yr dose to transportation workers.
______
Statement by Carl J. Paperiello, Deputy Executive Director for
Materials, Research and State Programs, Nuclear Regulatory Commission
Mr. Chairman, and Members of the Committee, it is my pleasure to be
here today to present the U.S. Nuclear Regulatory Commission's (NRC)
views on the management and disposal of low-activity radioactive waste.
In that context, I also offer NRC's views on the Formerly Utilized
Sites Remedial Action Program (FUSRAP) of the U.S. Army Corps of
Engineers (the Corps). Because the Uranium Mill Tailings Radiation
Control Act (UMTRCA) does not direct the NRC to exercise regulatory
authority over milling activities and facilities that were not subject
to license at the time of the effective date of UMTRCA, the NRC has not
regulated the disposal of mill tailings resulting from the FUSRAP
program.
The Commission has stated that, absent specific direction from
Congress to the contrary, NRC will continue to refrain from regulating
the Corps in its cleanup activities at FUSRAP sites. Attachment 1 to my
testimony is a copy of the Director's Decision which I issued on March
26, 1999, which is probably the most complete exposition of the
Commission's position on this matter. Former Chairman Jackson laid out
a briefer description of our policy in a April 28, 1999 letter
(Attachment 2) which was reiterated in a July 29, 1999 letter signed by
former Chairman Dicus (Attachment 3). Stated succinctly, the NRC
recommends legislation if Congress intends that NRC regulate pre-UMTRCA
mill tailings in the FUSRAP program. The NRC has not sought such
authority or the necessary resources to regulate that material, and the
Appropriations Committees, most recently in the House Appropriations
Committee Report on the Energy and Water Development Bill for Fiscal
Year 2000 (which was adopted by the conferees), have clearly indicated
that Congress does not intend NRC to undertake licensing the Corps'
cleanup of contaminated FUSRAP sites.
In my testimony, I will address not only how the disposal practices
of the Corps compare with those that the NRC regulates, but also the
broader topic of risk-informed disposal of radioactive material. In my
presentation, I will address the following questions, among others:
How do FUSRAP wastes compare with other similar
radioactive wastes and the disposal of other wastes?
Why are radioactive wastes with similar concentrations and
hazards disposed of in different ways?
What safety issues need to be addressed in the disposal of
materials like FUSRAP wastes in RCRA Subtitle C hazardous waste
landfills?
In the more than 2 years since responsibility for the FUSRAP
program was transferred by Congress from the U.S. Department of Energy
(DOE) to the Corps, we have heard from State officials; the Conference
of Radiation Control Program Directors; commercial firms; legislators,
both Federal and State, including two members of this Committee;
members of the public; and environmental groups asking us to exert our
regulatory authority over the disposal of pre-UMTRCA mill tailings,
often within the context of activities of the Corps as it remediates
FUSRAP sites. More recent concerns with respect to the disposal of mill
tailings from FUSRAP sites have been raised in petitions submitted to
NRC this year. These petitions are currently under review.
Some of the reasons offered for NRC regulation of FUSRAP material
are legal and involve interpretation of the Atomic Energy Act (AEA) and
the Uranium Mill Tailings Radiation Control Act (UMTRCA). In my March
1999 Director's Decision, I concluded we do not have the authority to
regulate the Corps' handling of radioactive material at FUSRAP sites.
Moreover, Congress has not provided NRC with any money or personnel to
undertake an oversight role of any kind, and as I stated earlier, the
Appropriations Committees have given the Commission clear guidance not
to involve itself in FUSRAP.
Some of the arguments made by those who would have NRC license the
Corps' activities are based on the observation that the pre-UMTRCA and
post-UMTRCA materials are similar in radiological characteristics and
should be treated the same. However, it is not unusual for similar
radioactive materials to be regulated differently. This is the result
of the fragmented statutory regime governing radioactive materials.
Finally, some reasons offered for NRC regulation of FUSRAP material
are expressed in terms of health and safety and environmental concerns.
Despite this view, we believe Congress has clearly given the Corps
authority for remediation of FUSRAP sites pursuant to CERCLA in a
manner that protects the public health and safety.
Nonetheless, if Congress believes NRC should regulate this area,
the NRC stands ready to assist. However, the NRC would need additional
resources to regulate FUSRAP material.
My testimony focuses on disposal of mill tailings from FUSRAP sites
in non-NRC regulated facilities, in particular in Resource Conservation
and Recovery Act (RCRA) Subtitle C hazardous waste disposal facilities.
NRC mill tailings licensees do not use such facilities for radioactive
waste disposal, because NRC-controlled radioactive materials and wastes
are regulated under the Atomic Energy Act and, absent the addition of
hazardous waste, are not subject to RCRA.
In order to put this discussion into context, I will address other
types of radioactive wastes that are similar to mill tailings because
of their radioactivity levels, and the presence of long-lived
radioactive materials such as uranium, thorium, and radium. These
similar materials with comparable hazards may or may not be regulated.
If they are, then this may be accomplished by other agencies under
programs which require disposal in specific kinds of facilities. I will
compare the facilities used for disposal of these different materials
and will discuss how they differ in their approaches for managing risk
to the public and the environment.
FUSRAP
As part of the Nation's early atomic energy program, the Manhattan
Engineering District and the Atomic Energy Commission performed work
during the 1940's through the 1960's at a number of sites throughout
the United States. The radiological contaminants at these sites
involved primarily low-levels of uranium, thorium, and radium, with
their associated decay products. DOE began FUSRAP in 1974 to study
these sites and take appropriate cleanup action. By 1997, DOE had
placed 46 sites in the program and had completed remediation at 25
sites. Remedial action was planned, underway, or pending final closeout
at the remaining 21 sites.
DOE managed the program under its AEA authority. The AEA provided
that NRC did not regulate these sites or have any oversight role as to
their cleanup. On October 13, 1997, Congress passed the Fiscal Year
1998 Energy and Water Development Appropriations Act which transferred
administration of FUSRAP to the Corps and appropriated funds to the
Corps for the completion of FUSRAP activities.
Pursuant to a provision of the Fiscal Year 1999 Energy and Water
Development Appropriations Act, the Corps is executing FUSRAP in
accordance with the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (CERCLA). Under CERCLA, the
Federal lead agency is exempt from licensing and permitting regulations
for work done onsite, but not from the substantive requirements of any
applicable or relevant and appropriate regulations.
A number, but by no means all, of FUSRAP sites contain pre-UMTRCA
mill tailings, the focus of my testimony today. Section 11 e.(2) of the
AEA defines the tailings or residue produced by the extraction of
uranium or thorium from ore processed primarily for its source material
content as byproduct material. Mill tailings typically have most of the
uranium or thorium removed, but still contain other radioactive
elements in the decay chains for uranium and thorium, especially
thorium 230 and radium. Mill tailings also can contain hazardous
chemicals used in or released from the processing to extract uranium,
and these can include nitric, hydrofluoric, and sulfuric acids;
ammonia; heavy metals; and benzene.
The standards applicable to the disposal of mill tailings cells
were promulgated by the U.S. Environmental Protection Agency (EPA) and
NRC conformed its regulations to these standards. For the non-
radiological components of mill tailings, Congress directed EPA in
UMTRCA to develop standards that offered a comparable level of
protection as RCRA Subtitle C facilities. Therefore, tailings and
related waste that were produced at facilities under an NRC license at
the effective date of UMTRCA, or licensed thereafter, are regulated by
NRC or Agreement States to meet regulations derived from RCRA. Those
tailings produced at facilities (such as FUSRAP sites) not under an NRC
license at that time, or thereafter, have not been regulated by NRC,
based on the understanding that NRC's authority does not extend to such
facilities. Thus, no NRC requirements have been applied to such
tailings. Because of this, the Corps may dispose of its pre-UMTRCA mill
tailings in RCRA hazardous waste facilities, subject to the authority
of regulatory bodies such as EPA or State permitting agencies that
administer hazardous waste programs. According to the Corps, the use of
RCRA Subtitle C facilities in the FUSRAP program for disposal of
certain kinds of radioactive wastes fosters competition, precludes
capacity limitations, and minimizes schedule delays. The Corps'
disposal contracts for FUSRAP wastes total several hundred million
dollars.
To put these disposals in different types of facilities into a risk
context, I will discuss several kinds of radioactive wastes, how they
compare in their radioactivity concentration, especially for long-lived
radionuclides, and how each is disposed of.
COMPARISON OF MILL TAILINGS WITH OTHER RADIOACTIVE WASTE
Figure 1 illustrates the relative radioactivity of different kinds
of radioactive waste, including spent fuel, naturally occurring and
accelerator-produced radioactive material (NARM), exempt source
material, technologically enhanced naturally occurring radioactive
material (TENORM), low-level waste, mill tailings, and, for reference,
soil (the units are relative with background soil radioactivity set at
one). Low-level waste, NARM, TENORM, and mill tailings are
characterized by wide ranges of radioactivity--from background or near
background soil levels to levels that are 100 million times more
concentrated than natural concentrations in soil. Although
concentrations of radioactive material at the high end of the range for
LLW are within a factor of 100 of the concentrations in spent fuel (and
in fact overlap with some U.S. Department of Energy high-level
radioactive waste), most radioactivity in LLW decays away within a few
hundred years. The radioactivity of HLW and spent fuel also decays, but
these wastes are more highly radioactive for very long periods of time.
TENORM is material whose radioactivity has been enhanced (i.e.,
increased or concentrated) as a result of human intervention. It
includes coal ash from coal-fired power plants, uranium mining
overburden, phosphate ore, pipe scale from oil and gas production, and
water treatment sludge. In addition, the mineral extraction industry
produces large volumes of TENORM with some of the characteristics of
uranium mill tailings, including processing chemical residues. The EPA
reports that TENORM volumes produced annually in the United States may
be in excess of one billion tons. For comparison, the annual amount of
LLW produced for disposal under the Low-Level Radioactive Waste Policy
Amendments Act of 1985 is less than 100,000 tons, or one ten-thousandth
as much as TENORM. If uranium mill tailings were not defined as 11e.(2)
byproduct material by the AEA, they would be considered to be TENORM.
The range in radioactivity found in mill tailings, LLW, exempt
source material, and TENORM significantly overlaps. These four groups
of wastes are also similar in that they contain or may contain (for
LLW) the long-lived isotopes of uranium, thorium, and/or radium. Thus,
from a risk perspective, LLW, exempt source material, TENORM, and mill
tailings are similar in that each contains very long-lived
radionuclides, often in the same range of concentrations. However, from
a legal perspective, they are regulated differently.
LAWS AND REGULATIONS FOR DISPOSAL OF MILL TAILINGS AND HAZARDOUS WASTES
Different laws and programs that apply to these different materials
affect how they are regulated, even though they may pose a similar
risk.--Mill tailings at licensed sites covered by UMTRCA are regulated
by NRC under the AEA, and must be disposed of in tailings impoundments
that meet applicable NRC regulations. As noted above, mill tailings not
associated with licensed activities under UMTRCA are understood to be
outside the NRC's regulatory authority, but they must be disposed of in
a facility authorized by a permitting authority to receive such wastes.
Our understanding is that a number of laws apply or may apply to such
materials and to other forms of TENORM, including the Clean Air Act,
Clean Water Act, Safe Drinking Water Act, CERCLA, and Toxic Substances
Control Act (TSCA). None of these acts provides EPA with explicit
authority over TENORM, but EPA is working under them to establish
standards for TENORM. In the absence of such standards, the National
Academy of Sciences has observed that public exposures to TENORM are
regulated by EPA in a rather fragmentary manner.) \1\ In the absence of
more definitive EPA regulations, some States have adopted their own
regulations for TENORM. In practice, TENORM waste that is disposed of
(as opposed to remaining in place at the site of generation or stored)
may be placed in a RCRA Subtitle D landfill, a Subtitle C hazardous
waste facility, or an NRC or Agreement State licensed LLW facility,
depending on the State and the hazard of the TENORM. Exempt source
material, source material with less than 500 parts per million uranium
or thorium, has also been disposed of in RCRA Subtitle C hazardous
waste facilities. The NRC is currently looking at its source material
regulatory framework in consultation with EPA and a host of other
Federal agencies and the States with the objective of more rationally
addressing risks from these similar materials.
---------------------------------------------------------------------------
\1\ Evaluation of Guidelines for Exposures to Technolonically
Enhanced Naturally Occurring Radioactive Materials, 1999, National
Academy of Sciences, Board on Radiation Effects Research, National
Academy Press, 281 p.
---------------------------------------------------------------------------
Because FUSRAP material mill tailings from FUSRAP sites are
understood to be outside the regulatory authority of the NRC, the Corps
has additional options for disposal of this material, instead of just
placing it in an NRC-licensed tailings impoundment. As with TENORM, the
Corps has allowed some FUSRAP material to be disposed of in RCRA
hazardous waste facilities. FUSRAP material also has been disposed of
in an NRC-licensed 11e.(2) disposal facility (Envirocare). The Corps
has indicated that none of this material has been disposed of in a
Subtitle D landfill.
COMPARISON OF HAZARDOUS WASTE FACILITIES WITH MILL TAILINGS
IMPOUNDMENTS--ISOLATION OF WASTE FROM THE ENVIRONMENT
Mill tailings produced under an NRC license are required to be
disposed of in special impoundments which meet detailed requirements.
The NRC regulation is based on the EPA standards for mill tailings,
which, in turn, are based on the EPA hazardous waste standards
applicable to RCRA waste impoundments and landfills. State-of-the-art
mill tailings impoundments, like RCRA hazardous waste disposal cells,
rely, in part, on a system of liners and leachate detection and
collection systems to prevent releases of hazardous and radioactive
materials to the environment. Environmental monitoring, inspection,
site selection, and other detailed requirements are also employed at
these sites. Because mill tailings impoundments and hazardous waste
cells are based in large part on the same EPA requirements, the NRC
believes that both RCRA landfills and NRC-licensed disposal facilities
are protective. It should be noted that NRC mill tailings regulations
include requirements not found in EPA's RCRA regulations, such as
government ownership of the tailings piles, and designs that provide
for long-term stability (long-term is taken to mean a period of 1000
years, to the extent practicable, but in no case less than 200 years).
EPA's regulations, on the other hand, have requirements for enduring
institutional controls which are aimed at achieving a similar level of
protection.
Practices at RCRA facilities vary depending upon the permit
conditions for radioactive materials imposed by EPA or the State
permitting agency, and the radioactivity of the waste *or intended to
be disposed. The Buttonwillow hazardous waste facility in California,
for example, accepts TENORM that is less than 2000 psi/gram
(approximately 200 on the chart in Figure 1) in radioactivity
concentration. The 2000 psi/gram threshold derives apparently in part
from Department of Transportation regulations on shipment of
radioactive material. Under those regulations, material with
concentrations of radioactivity below 2000 psi/gram is not considered
radioactive material for purposes of transportation. The EnviroSafe
facility in Idaho, which accepts naturally occurring radioactive
material and FUSRAP waste, is subject to permit conditions that specify
limits for uranium, thorium, and other isotopes, and impose the same
radioactivity concentration limit as specified for the Buttonwillow
facility in California.
COMPARISON OF HAZARDOUS WASTE FACILITIES WITH MM TAILINGS
IMPOUNDMENTS--WORKER PROTECTION
NRC and Agreement State requirements for uranium mills and mill
tailings impoundments specify that a radiation protection program be
implemented. This program is designed, among other things, to ensure
that doses to radiation workers do not exceed 5000 millirem/year. NRC
regulations also limit radiation doses from licensed operations to
individual members of the public to 100 millirem/year. The program
requires monitoring, recordkeeping, and implementation of design
measures and operating procedures to keep radiation doses as low as is
reasonably achievable.
It is our understanding that the State-issued RCRA permit for the
EnviroSafe facility in Idaho provides that the criteria contained in
the permit will assure that the potential dose to a worker handling
FUSRAP material should never exceed 400 millirem/year. This is
approximately the dose received on average by commercial aircraft
flight crews and is more than an order of magnitude below NRC's worker
standard. Because the NRC has no authority over this facility, it has
not conducted any reviews of the procedures for controlling doses to
workers. The actual doses to workers from FUSRAP material would depend
upon the concentrations of the material received, the types of
radionuclides, whether or not the waste was in a container (dust from
soil, for example, could be inhaled by a worker), the number of
shipments per year, the work practices, and the duration of exposure.
CONCLUSION
As I noted in the beginning of this testimony, if Congress believes
NRC should regulate the disposal of pre-UMTRCA mill tailings in the
FUSRAP program, the NRC is ready to assist Congress in amending UMTRCA.
However, the NRC would need additional resources to regulate FUSRAP
material. In my testimony today, I have provided a context in which a
more comprehensive approach to regulating FUSRAP and similar materials
might be considered by the Congress.
This completes my statement. I would be pleased to answer any
questions from the Committee.
__________
Nuclear Regulatory Commission,
Washington, DC, March 26, 1999.
Dr. Thomas B. Cochran, Director,
Natural Resources Defense Council,
Washington, DC.
Dear Dr. Cochran: I am providing you with the Director's Decision
that responds to your 10 CFR 2.206 petition, filed on October 15, 1998.
The petition requested that NRC exert authority to ensure that the U.S.
Army Corps of Engineers' (Corps) handling of radioactive materials in
connection with the Formerly Utilized Sites Remedial Action Program
(FUSRAP) is executed in accordance with a properly issued license and
all other applicable requirements.
I have completed my review of the issues raised in your petition
and the responses to your petition provided by the Corps and the
Department of Energy (DOE). For reasons explained in the enclosed
Director's Decision, DD-99-07, dated March 26, 1999 (Enclosure 1), your
request has been denied.
As provided by 10 CFR 2.206(c), a copy of this Decision will be
filed with the Secretary of the Commission, for the Commission's
review. As provided by this regulation, the Decision will constitute
the final action of the Commission 25 days after the date of issuance
of the Decision, unless the Commission, on its own motion, institutes a
review of the Decision within that time.
In addition, a copy of the notice that is being filed for
publication with the Office of the Federal Register is also included as
Enclosure 2, for your information.
Sincerely,
Carl J. Paperiello, Director,
Office of Nuclear Material Safety and Safeguards.
______
[From the Nuclear Regulatory Commission, Office of Nuclear Material
Safety and Safeguards]
Carl J. Paperiello, Director
In the Matter of The United States Army Corps of Engineers--Docket No.
N/A (10 C.F.R. 2.206)
DIRECTOR'S DECISION UNDER 10 CFR SEC. 2.206
I. INTRODUCTION
On October 15, 1998, Thomas B. Cochran, Ph.D., Director, Nuclear
Program, Natural Resources Defense Council (NRDC) and James Sottile,
IV, Caplin & Drysdale, Chartered, filed a petition on behalf of NRDC
(the ``petitioner'') addressed to L. Joseph Callan, Executive Director
for Operations, U.S. Nuclear Regulatory Commission (NRC). The petition
requests that NRC exert authority to ensure that the Corps of
Engineers' handling of radioactive materials in connection with the
Formerly Utilized Sites Remedial Action Program (FUSRAP) is effected in
accord with a properly issued license and all other applicable
requirements.
II. BACKGROUND
During the 1940's, 1950's, and 1960's, the Manhattan Engineer
District and the Atomic Energy Commission performed work at a number of
sites throughout the United States as part of the nation's early atomic
energy program. Although many of the sites were cleaned up under
guidelines in effect at the time, residual contamination remains at
many of the sites today. The contaminants at these sites involved
primarily low levels of uranium, thorium, and radium, with their
associated decay products. The U.S. Department of Energy (DOE) began
FUSRAP in 1974 to study these sites and take appropriate cleanup
action. By 1997, DOE had identified 46 sites in the program and had
completed remediation at 25 sites with some ongoing operation,
maintenance, and monitoring being undertaken by DOE. Remedial action
was planned, underway, or pending final closeout at the remaining 21
sites.
On October 13, 1997, Congress passed the 1998 Energy and Water
Development Appropriations Act,\1\ which transferred administration of
FUSRAP to the U.S. Army Corps of Engineers (the Corps or USACE) and
appropriated $140,000,000 to the Corps for the completion of FUSRAP
activities. The language in the law reads as follows:
---------------------------------------------------------------------------
\1\ Energy and Water Development Appropriations Act, 1998, Pub. L.
No.105-62, 111 Stat. 1326 (1997)
---------------------------------------------------------------------------
For the expenses necessary to administer and execute the Formerly
Utilized Sites Remedial Action Program to clean up contaminated sites
throughout the United States where work was performed as part of the
nation's early atomic energy program, $140,000,000, to remain available
until expended: Provided, that the unexpended balances of prior
appropriations provided for these activities in this Act or any
previous Energy and Water Development Appropriations Act may be
transferred to and merged with this appropriation account, ?and
thereafter, may be accounted for as one fund for the same time period
as originally enacted.\2\
---------------------------------------------------------------------------
\2\ Id.
---------------------------------------------------------------------------
The legislative history behind this provision offers little
guidance regarding the details of the Corps' new involvement. The
Conference Committee report states that ``(t)he conferees have agreed
to transfer the Formerly Utilized Sites Remedial Action Program
(FUSRAP) to the Corps of Engineers, and funding for this program is
contained in Title I of the bill.''\3\ The House Appropriations
Committee report indicates that this change stems from concerns over
the cost of the FUSRAP program under DOE. The Committee report
concludes that ``(c)/early, the problem must be in the contract
management and contract administration function performed by the
Department of Energy and the management and operating contractors who
actually subcontract for most of the cleanup work.''\4\ Finally, citing
the Corps' efforts under the Formerly Used Defense Sites (FUDS)
program, the report indicates that there are significant cost and
schedule efficiencies to be gained by''. . . having the Corps of
Engineers manage the Department of Energy's FUSRAP program as
well.''\5\
---------------------------------------------------------------------------
\3\ H.R. Conf. Rep. No. 271, 105th Cong., 1st Sess., 85 (1997).
\4\ H.R. Rep. No. 190, 105th Sess., 99 (1997).
\5\ Id.
---------------------------------------------------------------------------
Given the lack of guidance in the legislative history, two Members
of Congress sought to clarify the law's intent through subsequent
correspondence. In a November 6, 1997, letter to Energy Secretary
Federico Pena and Defense Secretary William Cohen, Senator Pete
Domenici and Representative Joseph McDade indicated, among other
things, that:
Transfer of the FUSRAP program to the U.S. Army Corps of Engineers
makes management, oversight, programming and budgeting, technical
investigations, designs, administration, and other such activities
directly associated with the execution of remediation work at the
currently eligible sites a responsibility of the Corps of
Engineers. It should be emphasized that basic underlying
authorities for the program remain unaltered and the responsibility
of DOE [emphasis added].
The Energy and Water Development Appropriations Act for fiscal year
1999 (FY99), P.L. 105-245, continued the Corps' involvement as the
implementing agency for the FUSRAP. In particular, the 1999 Act
provided that response actions by the United States Army Corps of
Engineers under FUSRAP shall be subject to the administrative,
procedural, and regulatory provisions of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) (42
U.S.C. 9601 et seq.), and the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 CFR, Chapter 1, Part 300. In addition,
the 1999 Act provided that, ``. . . except as stated herein, these
provisions do not alter, curtail or limit the authorities, functions or
responsibilities of other agencies under the Atomic Energy Act (42
U.S.C. 2011 et seq.). . . ''\6\
---------------------------------------------------------------------------
\6\ Pub. L. No. 105-245, Title I.
---------------------------------------------------------------------------
To date, NRC has not regulated activities conducted under FUSRAP,
including those activities conducted by the Corps since the transfer of
the program. The petitioner, however, believes that NRC should regulate
the Corps' FUSRAP activities, arguing that the:
Appropriations Act did not purport to transfer authority over
FUSRAP to the Corps. As such, according to the petitioner, the
Corps may not legally administer the program absent proper
oversight because, unlike DOE and (in most cases) DOE contractors,
the Corps is not exempt from the licensing requirements of the
Atomic Energy Act (see 42 U.S.C. Sec. 2014(s). The petitioner
further indicates that DOE has publicly stated that it cannot
extend its licensing exemption for private contractors to the Corps
and that DOE has no regulatory authority over the Corps for the
latter's FUSRAP activities. The petitioner concludes that ``. . .
the Corps does not have the legal authority to run FUSRAP without
first obtaining a license from the NRC.''
In support of its position, the petitioner notes that the
institutional mission of the Corps is not focused on the safety and
security of the nation's nuclear activities. In addition, NRC's failure
to regulate the Corps' FUSRAP activities is claimed to be inconsistent
with the intent of the laws governing the utilization and cleanup of
nuclear materials. Finally, the petitioner adds that, with very few
exceptions, Congress intended that no person should be permitted to
handle nuclear materials except in accordance with a license issued by
NRC.
In a November 30, 1998, letter NRC informed the petitioner that the
petition had been received and was currently under review. On the same
date, NRC forwarded the petition to the DOE and the Corps for their
comment. In a January 12, 1999, letter, the Chief Counsel for the
Corps, Robert M. Andersen, responded to NRC's request. DOE responded to
NRC's request in a January 14, 1999, letter from William J. Dennison,
Assistant General Counsel for Environment.
The Corps' Response
In its response, the Corps states that it is not required to obtain
a license from NRC for its FUSRAP activities. The Corps' response
emphasizes that Congress directed the Corps to conduct its FUSRAP
activities pursuant to the CERCLA. \7\ The Corps' principal argument is
that no NRC license is required because of the Federal permit waiver
for on-site removal or remedial actions in Sec. 121(e)(1) of CERCLA.
The Corps also believes that the AEA exempts FUSRAP activity from NRC
licensing. In its opinion, ``Congress intended for USACE to fill the
shoes of the AEC successor agency responsible for FUSRAP cleanup, that
is DOE, an agency not considered a 'person' subject to licensing under
the AEA.'' The Corps further posits that, in transferring the FUSRAP
program, Congress expressed no intent that the agency obtain an NRC
license for that activity and, instead, sought a seamless transition
``unimpeded by procedural requirements outside of CERCLA.''
---------------------------------------------------------------------------
\7\ 42 USC Sec. 9601 et seq.
---------------------------------------------------------------------------
Nevertheless, the Corps commits to meeting th?e substantive
requirements of both the Atomic Energy Act (AEA) and CERCLA. It
acknowledges that NRC license requirements may apply to portions of
FUSRAP response actions conducted off-site, beyond the scope of the
permit waiver. The letter concludes by acknowledging that the
substantive provisions of NRC regulations are applicable or relevant
and appropriate requirements (ARARs) for many FUSRAP response actions
under CERCLA and, as such, the Corps will look ``. . . to NRC for
guidance in interpreting and implementing these requirements on the
sites.''
DOE's Response
DOE's response differs in several respects from that of the Corps.
On the matter of DOE's continued involvement with FUSRAP and oversight
of the Corps, the Department ``respectfully disagrees'' with the Corps.
According to its submittal, DOE is not authorized to regulate the
Corps' FUSRAP activities and cannot transfer its AEA authorities to the
Corps. In the Department's view, ``(t)he transfer legislation did not
make the Corps a DOE contractor, or otherwise subject the Corps'
activities to the control or direction of DOE.'' The letter also
'indicates that DOE and the Corps are currently developing a memorandum
of understanding (MOU) to clarify their respective roles and
responsibilities as a result of the legislative transfer.
Nevertheless, DOE believes that, with the exception of a few
``administrative issues,'' there are no remaining issues between the
two agencies that should affect NRC's disposition of the NRDC petition.
The letter concludes that NRC should ``evaluate the licensability of
the Corps' activities in the same manner as it would evaluate the
activities of any other 'person' within the meaning of the Atomic
Energy Act.'' DOE defers to NRC on this question. The letter does not
contain a DOE position concerning the viability of the Corps' CERCLA
argument.
III. DISCUSSION
The NRC staff has completed its evaluation of the petitioner's
requests and the responses from the Corps of Engineers and the
Department of Energy. For the reasons discussed below, the NRC denies
the petitioner's request insofar as it calls on NRC to require the
Corps to obtain a license for activities conducted at FUSRAP sites.
CERCLA Permit Waiver
Pursuant to Sec. 121 (e)(1) of CERCLA, ``(n)o Federal, State, or
local permit shall be required for the portion of any removal or
remedial action conducted entirely onsite, where such remedial action
is selected and carried out in compliance with this section.''\8\ This
provision waives any NRC license requirements that would apply to the
Corps' activities at FUSRAP sites conducted pursuant to CERCLA.
---------------------------------------------------------------------------
\8\ See also, 10 CFR Sec. 300.400(e).
---------------------------------------------------------------------------
The Corps argues that, because Congress specifically subjected
FUSRAP sites to the provisions of CERCLA in the 1999 Act, section 121
(e)(1) applies to Corps' response actions at FUSRAP sites. In
developing regulations for the implementation of CERCLA, the
Environmental Protection Agency (EPA) addressed the Sec. 121(e)(1)
waiver provision for Federal agency CERCLA response actions in
Sec. 300.400(e) of the National Contingency Plan (NCP). That provision
states, in pertinent part:
``Permit requirements. (1) No federal, state, or local permits are
required for on-site response actions conducted pursuant to CERCLA
sections 104, 106, 120, 121, or 122. The term on-site means the areal
extent of contamination and all suitable areas in very close proximity
to the contamination necessary for implementation of response
actions.''\9\
---------------------------------------------------------------------------
\9\ 40 CFR 300.400(e)(1)
---------------------------------------------------------------------------
In the preamble of the final rule which proposed this section, EPA
provided:
Proposed Sec. 300.400(e)(1) states that the permit waiver applies
to all on-site actions conducted pursuant to CERCLA sections 104,
106, or 122; in effect, this covers all CERCLA removal and remedial
actions (all ``response'' actions). However, a number `` of other
Federal agencies have inquired as to whether this language would
reach response actions conducted pursuant to CERCLA sections 121
and 120. In response, EPA has made a non substantive clarification
of the applicability of the permit waiver in CERCLA section 121
(e)(1) to include on-site response actions conducted pursuant to
CERCLA sections 120 and 121. . . . The addition of CERCLA section
120 simply recognizes that the permit waiver applies to Federal
facility cleanups conducted pursuant to CERCLA section 120(e),
which are also selected I and carried out in compliance with CERCLA
section 121.\10\
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\10\ 55 Fed. Reg. 8666, 8689 (1990) (``National Oil and Hazardous
Substances Pollution Contingency Plan; Final Rule) (emphasis added).
This change echoed EPA's intentions stated in the proposed rule: ``EPA
proposes to state that on-site permits are not required for response
actions taken by EPA, other Federal agencies, States, or private
parties pursuant to CERCLA sections 104, 106, or 122.'' 53 Fed. Reg.
51394, 51406 (1988) (``National Oil and Hazardous Substances Pollution
Contingency Plan; Proposed Rule) (emphasis added).
---------------------------------------------------------------------------
Section 121 (e)(1) applies to Federal agencies such as the Corps in
this case. The Corps may take the role of ``lead agency'' in a CERCLA
cleanup action. The NCP defines ``lead agency'' as ``the agency that
provides the OSC/RPM to plan and implement response actions under the
NCP. EPA, the USCG, another Federal agency, or a state. . . may be the
lead agency for a response action.''\11\ The NCP also states that
``Federal agencies listed in Sec. 300.175 have duties established by
statute, executive order, or Presidential directive which may apply to
Federal response actions following, or in prevention of, the discharge
of oil or release of a hazardous substance, pollutant, or
contaminant.'''\12\ The Corps, a branch of the U.S. Department of
Defense, is among the agencies listed.\13\ In the case of the FUSRAP
program, Congress specifically designated the Corps as the ``lead
agency'' in passing the 1999 Appropriations Act.\14\
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\11\ 40 CFR 300.5 (emphasis added). The definition goes on to
state, ``The Federal agency maintains its lead agency responsibilities
whether the remedy is selected by the Federal agency for non-NPL sites
or by EPA and the Federal agency or by EPA alone under CERCLA section
120.''
\12\ 40 CFR 300.170.
\13\ 40 CFR 300.175(b)(4)(i).
\14\ Pub.L. No. 105-245, Title I.
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As the Corps acknowledges in its letter, the permit waiver in
Sec. 121(e)(1) has been rarely addressed in the courts. In support of
its position, the Corps does cite McClellan Ecological See Situation
(MESS) v. Cheney, a case which held that a Resource Conservation and
Recovery Act (RCRA) permit was not required when activities which might
otherwise require a RCRA permit took place at a site only as part of a
CERCLA removal or remedial action.\15\ In McClellan, MESS, a citizens'
group, filed suit against the Secretary of Defense, with regard to
cleanup actions being taken at McClellan Air Force Base, under RCRA and
certain state laws. MESS claimed, that McClellan was required to obtain
a RCRA permit for the management of certain hazardous wastes on the
base. The court held that an RCRA permit was not required, because the
remedial activities were taken pursuant to CERCLA. The court relied on
Sec. 121(e)(1), stating, ``Section 121(e) expressly provides that the
activity does not have to be separately permitted.''\16\
---------------------------------------------------------------------------
\15\ 763 F. Supp. 431 (E.D. Gal. 1989). This holding was later
vacated on the basis of subject matter jurisdiction. See McClellan
Ecological Seepage Situation (MESS) v. Perry, 47 F .3d 325 (9th Cir.
1995).
\16\ 763 F. Supp. 431, at 435. The court went on to note in dicta
that where there has been treatment that requires a RCRA permit which
is not associated with a remedial or removal action under CERCLA, such
a permit would be required. Id.
---------------------------------------------------------------------------
The Corps also cites United States v. City of Denver to uphold this
interpretation of Sec. 121(e)(1).\17\ In that case, the court held that
CERCLA preempted a zoning ordinance which was in actual conflict with
EPA's remedial order. The court stated, ``[T]o hold that Congress
---------------------------------------------------------------------------
\17\ 100 F.3d 1509 (10th Cir. 1996).
intended that non-uniform and potentially conflicting zoning laws could
override CERCLA remedies would fly in the face of Congress's [sic)
goal of effecting prompt cleanups of the literally thousands of
hazardous waste sites across the country.''\18\
---------------------------------------------------------------------------
\18\ Id. at 1513. The Corps cited Ohio v. USEPA, 997 F.2d 1520
(D.C. Cir. 1993) in support of its Sec. 121(e)(1) position. NRC would
note that the case upholds a number of provisions in EPA's 1990
revision of the NCP, including Sec. 121(e)(1). However, the court's
discussion centers on EPA's definition of the term ``onsite,'' and does
not discuss the exemption provision, as a whole, in detail.
---------------------------------------------------------------------------
In passing the 1998 and 1999 Appropriations Acts, Congress gave no
indication that it intended to suspend the waiver provision in Sec. 121
(e)(1) of CERCLA in the context of the Corps' FUSRAP activities. The
1999 Act does say: ``Provided, further, That, except as stated herein,
these provisions do not alter, curtail or limit the authorities,
functions or responsibilities of other agencies under the Atomic Energy
Act (42 U.S.C. 2011 et seq.). . . '' In its letter, DOE points to this
language to support its argument that the Appropriations Act does not
create any authority for it to regulate the Corps. In doing so, DOE
interprets the term ``provisions'' as referring to the provisions of
the Appropriations Act and not the provisions of CERCLA. The NRC staff
agrees with DOE on this point. While the language appears to indicate
that the transfer of the program to the Corps does not alter the extent
of DOE and perhaps NRC authority under the AEA, there is no specific
indication that the language is intended to direct NRC to regulate the
Corps' administration of the FUSRAP program. In particular, there is no
evidence that in including this phrase, Congress intended to limit the
application of the Sec. 121(e)(1) permit waiver to the Corps' FUSRAP
activities. In fact, nowhere in the reports for either the 1998 or 1999
Acts or in the text of the laws themselves did Congress give any hint
that it intended NRC to regulate the Corps in its administration of the
FUSRAP program. Instead, the inclusion of the specific reference to
CERCLA suggests that Congress intended NRC to continue to refrain from
regulating activities under the FUSRAP program even after DOE's role
was reduced or discontinued.
As DOE states in its letter, the Corps has ``consistently expressed
the view that its authorities under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) . . . '' are
sufficient for the Corps' administration of the FUSRAP program. By the
time the 1999 Appropriations Act was passed, the Corps' administration
of the FUSRAP program under CERCLA was a matter of public record\19\
and NRC had not taken any steps to require the Corps to obtain a
license from NRC. If Congress had intended NRC to regulate the Corps'
activities at FUSRAP sites, it is likely that it would have
specifically directed NRC to do so in passing the 1999 Appropriations
Act.
---------------------------------------------------------------------------
\19\ See, e.g., Letter from Albert J. Genetti, Jr., U.S. Army
Deputy Commander, U.S. Army Corps of Engineers, to Mr. Thomas B.
Cochran and Ms. Barbara A. Finamore, Natural Resources Defense Council,
May 20, 1998.
---------------------------------------------------------------------------
We note, however, that the waiver in Sec. 121(e)(1) does not apply
to off-site activities. To the extent that NRC and U.S. Department of
Transportation (DOT) requirements apply to the transportation, transfer
and disposal of Atomic Energy Act material taken off of FUSRAP sites,
the Corps has committed to following applicable requirements, including
those for transfer under the AEA, shipment under the Hazardous
Materials Transportation Act, 49 U.S.C. Sec. 5101, and NRC manifest
requirements (e.g., 10 CFR Sec. 20.2006).\20\
---------------------------------------------------------------------------
\20\ While the Corps will be following NRC's requirements in this
area, it is unlikely that any specific NRC license requirements would
apply to shipments from FUSRAP sites. However, the staff will request
that the Corps contact NRC if it plans to ship material that does not
meet one of the exemptions for a specific license in NRC regulations.
See, e.g., 10 C.F.R. Sec. 71.10.
---------------------------------------------------------------------------
NRC Authority Under UMTRCA
Many FUSRAP sites contain material over which NRC would have no
regulatory jurisdiction regardless of whether the Corps is the lead
agency in implementing the program and regardless of whether response
actions by the Corps under the program are subject to CERCLA. In
particular, of the 21 sites at which remediation has not yet been
completed, 12 sites contain residual material resulting from activities
that were not licensed by NRC at the time the Uranium Mill Tailings Act
of 1978 (UMTRCA) became effective or at any time thereafter. As defined
by the UMTRCA, NRC does not have authority to regulate cleanup of
covered residual material resulting from an activity that was not so
licensed.
The language of section 83 of the Atomic Energy Act (42 U.S.C.
2113(a)), was added to that Act by UMTRCA. Section 83 a. requires NRC
to impose certain terms and conditions relating to cleanup with respect
to any ``license issued or renewed after the effective date'' of
section 83 for covered activities, and also imposes such terms or
conditions on any such ``license in effect on the date of enactment''
of the section. No such responsibility was imposed upon NRC with
respect to activities that were not under NRC license before the date
of the enactment of section 83, if they were not licensed thereafter.
Prior to the enactment of UMTRCA, neither the AEC nor the NRC had
statutory jurisdiction over residual material resulting from the
processing of ore for source material. This position was taken by the
AEC after careful legal analysis, and was subsequently adopted by the
NRC when it succeeded to the AEC's regulatory functions. Though NRC
exercised some control over such material in connection with licensed
processing of ore for source material, it did not exercise jurisdiction
at inactive sites where no license was in effect. UMTRCA was enacted
because the Congress recognized that NRC did not have jurisdiction over
radioactive residuals resulting from the extraction of uranium or
thorium from ore processed for its source material content at inactive
sites. This is evidenced by the floor remarks regarding the amended
version of H.R. 13650, the bill that was enacted as UMTRCA. Senator
Hart explained:
Although the NRC licenses active uranium mining and milling
activities, existing law does not permit the Commission to regulate the
disposal of mill tailings once milling and mining operations cease and
the operating license expires. It is that authority to regulate
tailings after milling operations cease, that we propose be given to
the NRC.\21\
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\21\ 124 Cong. Rec. 518, 748 (October 13, 1978).
Because the residual material at many FUSRAP sites was generated in
activities that were not licensed when UMTRCA was enacted, or
thereafter, NRC today has no basis to assert any regulatory authority
over handling of the residuals at those sites.
The NRC staff notes that many of the remaining sites (i.e., sites
containing materials other than mill tailings) also raise some
significant jurisdictional questions in their own right. For instance,
a few of the sites may still be in legal possession of DOE even though
the Corps is conducting clean up at the site under FUSRAP. While the
issue of possession appears to be a matter of continuing discussion
between the Corps and DOE, it is highly unlikely that NRC would have
authority to require a license for cleanup activities conducted at a
site which continues to be a DOE-owned or controlled site. In addition,
the concentration of radioactive material at some of the remaining
sites may not be sufficient to trigger NRC license requirements. While
NRC does not have information sufficient to reach a final conclusion
for specific sites, it is the NRC staff's understanding that some of
these sites may contain only ``unimportant quantities'' of source
material as defined under 10 CFR Sec. 40.13(a). If this is the case,
the amount of material at these sites would not be sufficient to
implicate NRC license requirements. Given the limitations of NRC
jurisdiction under UMTRCA, the potential DOE ownership issues, and the
possibility that several sites may contain ``unimportant quantities''
of source material, it is likely that the number of FUSRAP sites over
which NRC may have jurisdiction would be very small even absent the
CERCLA permit waiver.
The Corps' Authority Under the Appropriations Act
In its response, the Corps states that the AEA also exempts FUSRAP
activity from NRC licensing because Congress intended the Corps to fill
the shoes of DOE, an agency exempt from NRC regulatory requirements
under most circumstances. DOE disagrees with this characterization,
claiming that, for the most part, it has no role in the FUSRAP program
at this time (regulatory, contractual, or otherwise). As such, in DOE's
view, the Corps cannot rely on any exemption in the AEA to avoid
regulation by NRC. Nevertheless, DOE acknowledges that the transfer to
the Corps did not completely eliminate the Department's involvement
with FUSRAP. While the issues have yet to be resolved, DOE may have
responsibility for inventory reporting of government-owned FUSRAP sites
to the General Services Administration and may be required to conduct
post-cleanup monitoring at some sites after the Corps' clean up
activities cease.
DOE and the Corps are working on an MOU to address their
disagreements regarding the nature of the transfer of the FUSRAP
program and their respective responsibilities under the program. Until
the disagreement has been resolved, either by the agencies or by
further direction from Congress, the NRC staff need not reach a
conclusion on the matter.
Nevertheless, in view of the clear applicability of CERCLA Sec. 121
(e)(1) to the Corps' activity at FUSRAP sites, the staff does not
believe that it would be appropriate to require the Corps to obtain an
NRC license for its activity at FUSRAP sites.
IV. CONCLUSION
In sum, Congress has given NRC no clear directive to oversee
USAGE's ongoing effort under CERCLA to complete the FUSRAP cleanup
project. Indeed, Congress has provided NRC no money and no personnel to
undertake an oversight role. In addition, Congress has made it clear
that the Corps is to undertake FUSRAP cleanup pursuant to CERCLA which
waives permit requirements for onsite activities. In these
circumstances, we are disinclined to read our statutory authority
expansively, and to commit scarce NRC resources, to establish and
maintain a regulatory program in an area where, under Congressional
direction, a sister Federal agency already is at work and has committed
itself to following appropriate safety and environmental standards.
Accordingly, I deny the petition insofar as it requests NRC to
impose licensing and other regulatory requirements on the Corps for
that agency's handling of radioactive material at FUSRAP sites. Both
the permit waiver provision of CERCLA and the ambiguity regarding DOE's
role in the program lead me to the conclusion that NRC should not
inject itself into the FUSRAP program at this time. Absent specific
direction from Congress to the contrary I NRC will continue to refrain
from regulating the Corps in its clean up activities at FUSRAP sites.
As provided by 10 C.F.R. Sec. 2.206, a copy of this Decision will
be filed with the Secretary of the Commission for the Commission's
review. The Decision will become the final action of the Commission 25
days after issuance, unless the Commission, on its own motion,
institutes review of the Decision within that time.
Dated at Rockville, Maryland this 26 day of March, 1999.
Carl J. Paperiello, Director.
For the Nuclear Regulatory Commission,
Office of Nuclear Material Safety and Safeguards
______
Enclosure 2
Nuclear Regulatory Commission,
March 26, 1999.
Memorandum To: David L. Meyer, Chief
rules review and directives branch division of freedom of information
and publication services
Office of Administration, T60-39
From: John T. Greeves, Director
Division of Waste Management
Office of Nuclear Material Safety and Safeguards
Subject: Publishing Notice in the Federal Register Concerning
Director's Decision Under 10 CFR 2.206
Attached please find one signed original, five copies, and an
electronic version on a floppy diskette of the Federal Register Notice
identified below for your transmittal to the office of the Federal
Register for publication.
Notice of Finding of No Significant Impact
Notice of Availability of Environmental Report
Notice of Opportunity for Hearing
Notice of Availability of License Amendment Application
for: 0 Notice of Availability of Draft EIS for: 0 Notice of
Availability of Final EIS for:
Notice of Preparation of Environmental Assessment
Contact: John H. Lusher, NMSS/DWM (301) 415-7694
Environmental Assessment
Notice of Availability of Final EIS for:
Other Directors Decision Under 10 CFR .& 2.206 to deny
the NRDC petition to regulate the U.S. Corps of Engineers in performing
FUSRAP site cleanups.
Attachments: As stated (2)
[7590-01-p] nuclear regulatory commission
action: issuance of directors decision under 10 cfr 2.206
Notice is hereby given that by petition dated October 15, 1998, the
Natural Resources Defense Council (NRDC) has requested that the U.S.
Nuclear Regulatory Commission (NRC) exert authority to ensure that the
U.S. Army Corps of Engineers' (the Corps) handling of radioactive
materials in connection with the Formerly Utilized Sites Remedial
Action Program (FUSRAP) is effected in accord with properly issued
license and all other applicable requirements. As NRDC notes in its
petition, FUSRAP began in 1974 as a program of the U.S. Department of
Energy (DOE), and that DOE had identified a total of 46 sites for
cleanup under FUSRAP. By 1997, cleanup of 25 of these sites had been
completed. There are currently 21 sites still in need of remediation.
In October 1997, Congress transferred funding for FUSRAP from DOE to
the Corps. NRDC believes that the Corps should obtain an NRC license to
I conduct activities under FUSRAP. At this time, the NRC has not
required the Corps to obtain a license.
The request has been referred to the Director of the Office of
Nuclear Material Safety and Safeguards. A copy of the petition was sent
to DOE and the Corps, and DOE and the Corps were given the opportunity
to comment.
By letter dated November 30, 1998, NRC acknowledged receipt of the
October 15, 1998.
Petition: The Director, Office of Nuclear Materials Safety and
Safeguards, has determined that the request should be denied for
the reasons stated in the ``Director's Decision Under 10 CFR
2.206'' (DD-99- ), the complete text of which follows this notice
and which is available for public inspection in the Commission's
Public Document Room, the Gelman Building, located at 2120 L
Street, N.W. , Washington D.C. 20555, and is also available on the
NRC Electronic Bulletin Board at (800) 952-9676.
A copy of this Decision has been filed with the Secretary of the
Commission for the Commission's review in accordance with 10 CFR
2.206(c) of the Commission's regulations. As provided by this
regulation, this Decision will constitute the final action of the
Commission 25 days after the date of issuance unless the Commission, on
its own motion, institutes review of the Decision within that time.
Dated at Rockville, Maryland, this 26 day of March 1999.
Carl J. Paperiello, Director,
For the Nuclear Regulatory Commission,
Office of Nuclear Material Safety and Safeguards.
__________
Nuclear Regulatory Commission,
Washington, DC, April 28, 1999.
Mr. Charles A. Judd, President,
Envirocare of Utah, Inc.,
Salt Lake City, UT.
Dear Mr. Judd: On behalf of the Commission, I am responding to your
letter to Commissioner Merrifield dated January 25, 1999 in which you
requested that the U.S. Nuclear Regulatory Commission (NRC) revisit its
position regarding NRC jurisdiction over 11e.(2) byproduct material
produced as a result of processing ore before November 1978. You
compared the NRC current position to the NRC former policies on ``Below
Regulatory Concern'' (BRC). In addition, you voiced a concern that the
NRC position that we lack authority over certain pre-1978 11e.(2)
byproduct material will allow such material to be disposed of in
sanitary landfills. This letter also responds to a separate letter of
February 3, 1999, on the same subject from Mr. Anthony Breard, who at
that time was your Manager of Government and Industry Affairs.
In response to your concerns, I will begin by clarifying that the
NRC position on pre-1978 11e.(2) byproduct material is in no way
related to the BRC policies. The NRC developed these policies in
response to a Congressional directive in the Low-Level Radioactive
Waste Policy Amendments Act of 1985. The BRC policies were intended to
establish a level below which NRC would not regulate low-level waste
(LLW) and other practices. Although the NRC has the statutory authority
to regulate all LLW, the BRC policies would have established a
framework for exempting, by rule or license, certain LLW from
regulation based on the judgment that the health and safety impact from
such LLW would have been below regulatory concern. As directed in the
Energy Policy Act of 1992, the NRC withdrew the BRC policies in 1993.
Unlike the BRC policies, the NRC statutory authority to regulate
pre-1978 11e.(2) byproduct material is limited. NRC jurisdiction to
determine the disposition of waste or tailings from ore processed
primarily for its source material content at a site not licensed by the
NRC on or after 1978, was established by Congress in the Uranium Mill
Tailings Radiation Control Act of 1978 (UMTRCA). Briefly stated, UMTRCA
was enacted in 1978, amending the Atomic Energy Act of 1954 (AEA), and
providing the NRC with jurisdiction over the byproduct material
generated by the processing of ore at NRC-licensed sites. Section 83a.
of the AEA was added by the UMTRCA and became effective on November 8,
1978, when UMTRCA was enacted. That section provides that any NRC
license issued pursuant to Section 62 (which addresses the licensing of
activities regarding source material) or Section 81 (which addresses
the licensing of activities regarding byproduct material), which was
issued or renewed on or after the effective date of Section 83a., must
include conditions and terms related to the final disposition of all 2
byproduct material created by the activity at such sites, as well as
the sites themselves. Therefore, NRC has statutory authority for the
pre-1978 11e.(2) byproduct material that exists at sites licensed by
the NRC on or after November 8, 1978. The critical factor in
determining the NRC jurisdiction over the byproduct material in
question is whether the site at which the processing took place was
licensed by the NRC on or after the date Section 83a. became effective,
not when the material was generated. As such, there are sites with pre-
1978 11e.(2) byproduct material that are not under NRC authority,
because these sites were not licensed by NRC at or after the time
UMTRCA was passed. However, the pre-1978 11e.(2) byproduct material not
regulated by the NRC is under the jurisdiction of other Federal and
State agencies, including the Department of Transportation (DOT) and
the Environmental Protection Agency (EPA).
Regarding your concern that disposal of unregulated pre-1978
11e.(2) radioactive waste would occur in community solid waste
landfills, the U.S. Army Corps of Engineers (USACE), in its letter
dated January 12, 1999 (enclosure), has indicated its commitment to
protect the public health and safety, and the environment under the
Formerly Utilized Sites Remedial Action Program (FUSRAP). The USACE
States that it requires that ``all waste materials sent offsite for
disposal go to facilities with either a license or a Federal or State
permit for the proper disposal of these materials,'' and that offsite
shipments of FUSRAP waste will be transported in accordance with the
Hazardous Materials Transportation Act, 49 U.S.C. Sec. 5101 et seq. The
USACE also must comply with applicable NRC, EPA, and DOT manifest
requirements.
I trust that this reply clarifies our position and responds to your
concerns.
Sincerely,
Shirley Ann Jackson.
______
Nuclear Regulatory Commission,
Washington, DC, July 29, 1999.
Hon. John D. Dingell,
U.S. House of Representatives,
Washington, DC.
Dear Congressman Dingell: I am responding to your letter dated July
12, 1999, in which you discussed your concern about the U.S. Nuclear
Regulatory Commission's (NRC's) regulation of the disposal of 11e.(2)
byproduct material located at several Formerly Utilized Sites Remedial
Action Program (FUSRAP) sites. Under the Uranium Mill Tailings
Radiation Control Act of 1978 (UMTRCA), which added a new section 83 to
the Atomic Energy Act of 1954 (AEA) as amended, the NRC does not have
authority to regulate the cleanup of this material if the material was
not generated by an activity licensed by the NRC on the effective date
of UMTRCA (November 8, 1978), or thereafter. (Note that I am using the
term ``pre-1978 section 11e.(2) byproduct materiar in this letter in
order to follow the terminology used in your letter, and assume that
the term is intended as a shorthand reference to residual radioactive
material resulting from the processing of ores before the enactment of
UMTRCA.)
You expressed a concern that because of its position on pre-197B
11e.(2) byproduct material, the NRC has determined that such material
may be sent to sites regulated under the Resource Conservation and
Recovery Act (RCRA) rather than to disposal sites regulated by the NRC.
The NRC has stated only that there are no NRC rules or regulations that
preclude disposal of the material at a RCRA facility, and that disposal
of this material is subject to the jurisdiction of other Federal and
State agencies. Additionally, there are NRC licensed facilities that
have accepted pre-1978 11e.(2) byproduct material for direct disposal
or processing and disposal in their mill tailings impoundments. For
example, Envirocare of Utah has an NRC license that allows it to accept
some forms of this material directly for disposal. Pre-1978 11e.(2)
byproduct material presented to NRC or Agreement State licensed
facilities for disposal or processing must comply with all requirements
applicable to those facilities.
With regard to your specific questions:
1. How will this action improve protection of the public health and
the environment?
Based on our knowledge of RCRA requirements, we believe that both
RCRA landfills and NRG-regulated and licensed disposal facilities are
protective. However, protection of the public health and environment is
improved with the availability of additional waste disposal options,
resulting in the cleanup and release of these sites for other uses.
Also, see our response to Question 5 below.
2. Please provide copies of the studies NRC used in making its
health and safety determinations.
To our knowledge, no formal NRC studies have been conducted to
compare RCRA landfills and NRC licensed 11e.(2) byproduct disposal
facilities. Rather, our position is based on our knowledge of RCRA and
NRC requirements and experience in regulating waste disposal. In fact,
NRC's groundwater protection requirements in 10 CFR Part 40, Appendix
A, are based upon RCRA requirements in 40 CFR Part 264 (see, 40 CFR
192).
3. What are the qualitative differences in the radioactive
constituents of pre- and post-1978 Section 11e(2) by-product material
that compel NRC to require two distinct disposal standards?
The NRC does not have two distinct disposal standards in 10 CFR
Part 40. It has no standard for FUSRAP material not within its legal
competence. It is important to note that pre-1978 and post-1978 11e.(2)
byproduct material have similar radiological characteristics, and in
some cases, pose less risk than naturally occurring radioactive
material (NORM) disposed of at some RCRA facilities. It is possible
that pre-1978 11e.(2) byproduct material at unlicensed sites may have
been commingled with other radioactive or hazardous material that may
or may not currently be under NRC's jurisdiction. For post-1978 11e.(2)
byproduct material, however, commingling has generally been prevented
under NRC or Agreement State regulatory programs.
4. Please detail the differences between NRC requirements in
radioactive waste disposal and disposal under RCRA, specifically:
a. What controls or protections exist at RCRA landfills that ensure
the protection of public health, safety and the environment from
radioactive byproduct material disposed at such facilities?
The Environmental Protection Agency (EPA) has an extensive set of
regulations in 40 CFR 260 through 272 for the management of hazardous
wastes. RCRA disposal facilities rely in part on a system of liners and
leachate detection and collection systems to prevent releases of
hazardous materials to the environment. RCRA regulations for disposal
also address monitoring and inspection, site selection, and other
detailed requirements. Most, if not all, of these controls would also
help to protect public health, safety, and the environment from
radioactive byproduct material. Indeed, some RCRA facilities are
licensed to receive NORM and exempt source material, the controls for
which would be similar to radioactive byproduct material.
b. What protections are in place to ensure worker health and safety
from the risks of exposure to radioactivity at RCRA landfills that have
accepted Section 11e.(2) byproduct material for disposal from the Army
Corps of Engineers under the FUSRAP program?
EPA is in a better position to answer this question on the controls
and protection of worker health and safety afforded by RCRA sites that
may have accepted pre-1978 11e.(2) byproduct material for disposal from
the U.S. Army Corps of Engineers under the FUSRAP program.
c. Do RCRA sites require a performance assessment to demonstrate
long-term protectiveness for the disposal of radionuclides?
We do not know of any performance assessment required by EPA under
RCRA to demonstrate long-term protectiveness for disposal of
radionuclides. However, EPA is in a better position to answer this
question. We are aware that some RCRA sites accept NORM and exempt
source material. As noted in response to question 4(a), RCRA
regulations for management of hazardous wastes would also be protective
for management of radioactive materials.
d. What type of groundwater modeling is required of RCRA sites to
ensure protection of groundwater quality for at least 1,000 years?
Our understanding is that EPA's requirements in 40 CFR 264, which
cover RCRA facilities, do not require groundwater modeling. However, we
understand that EPA does have policies that allow the appropriate use
of groundwater modeling as a means of demonstrating compliance with the
closure provisions at RCRA regulated units and the determination of
groundwater Alternate Concentration Limits that are protective of human
health and the environment. The specific applications and decisions
based on the use of groundwater modeling will likely depend on the
individual site conditions, and would be best answered by the EPA.
e. What type of public involvement have RCRA sites provided to
allow for public input to allow the disposal of radioactive waste in
facilities that have not been permitted or designed for the disposal of
Section 11e.(2) byproduct material?
EPA is in a better position to answer this question on public
involvement in the development of RCRA site requirements.
5. Overall, which sites are more protective of public health,
safety and the environment relative to the disposal of radioactive
byproduct wastes, RCRA landfills or NRC-regulated and licensed disposal
facilities?
Based on our knowledge of RCRA requirements, we believe that both
RCRA landfills and NRC-regulated and licensed disposal facilities are
protective. While RCRA requires a more prescriptive design approach and
relies, for example, on active institutional controls for long-term
control of a site, NRC uses a more performance-based approach, pursuant
to the requirements in UMTRCA, such that active, on-going maintenance
is unnecessary to protect the public heath and safety and the
environment from the effects of 11e.(2) byproduct material that has an
extremely long half-life (e.g, about 80,000 year half-life for thorium-
230). For that reason, EPA standards that have been incorporated in 10
CFR Part 40, Appendix A, require that uranium mill tailings
impoundments be designed to be stable for 1,000 years, to the extent
practicable, but in no case, less than 200 years. In general, we
believe that NRC-regulated and licensed disposal facilities, because
they are subject to requirements that focus on protection of public
health, safety, and the environment from radiological hazards, may
afford slightly more protection against radiological hazards.
6. In a [Director's Decision] dated March 26, 1999, NRC's Office of
Nuclear Material Safety and Safeguards concluded that a waiver under
the Comprehensive Environmental Response, Cleanup, and Liability Act of
1980 (CERCLA) does not apply to offsite FUSRAP disposal activities.
What steps has the Commission taken to regulate offsite handling and
disposal of Section 11e.(2) byproduct material?
The NRC has licensed Envirocare of Utah to provide disposal for
this type of material. The Commission has also addressed the disposal
of this type of material in impoundments at specific milling sites. Any
material in the possession of an NRC or Agreement State licensee for
disposal or for processing and disposal of the residuals from the
processing in an NRC- or Agreement State-licensed facility is subject
to the NRC's or Agreement State's jurisdiction and must meet all
applicable Commission requirements. This includes, in the case of pre-
1978 11e.(2) byproduct material, the applicable requirements in 10 CFR
Parts 20 and 40 and the requirements for storage, processing, and
disposal in the applicable NRC or Agreement State license.
7. Does NRC require additional Congressional direction or authority
to regulate pre-1978 Section 11e.(2) byproduct material?
We believe legislation would be required to give NRC authority to
regulate Section 11e.(2) byproduct material in the FUSRAP program. The
NRC has not sought authority or the necessary resources to regulate
that material, and we note that the House Appropriations Committee
Report on the Energy and Water Development Appropriations Bill for
Fiscal Year 2000 contains language that the NRC is not intended to
license the Corps of Engineers in the Corps' cleanup of contaminated
FUSRAP sites. If Congress believes that the NRC should regulate the
mill tailings resulting from activities not licensed by the NRC at the
time or after UMTRCA was enacted, we stand ready to provide information
and assistance to Congress in amending the Act. NRC would need
additional resources to regulate pre-1978 section 11e.(2) byproduct
material.
We trust this reply is responsive to your concerns. Please contact
me if I can be of further assistance.
Sincerely,
Greta Joy Dicus.
______
Responses by Carl Paperiello to Questions From Senator Smith
Question 1. Is the public notified of each individual shipment of
waste received by a facility licensed by your agency?
Response. Except for spent fuel, no. Our regulations for
transportation of low-level waste (LLW) and 11e.(2) byproduct material
do not require such notifications.\1\ In practice, the only waste
disposal facility with a U.S. Nuclear Regulatory Commission license is
the 11e.(2) disposal cell at Envirocare. We do not notify the public
for each waste shipment to that facility. The three operating low-level
radioactive waste disposal facilities in the U.S. are licensed by
Agreement States. Based on our discussions with these States, none
requires notification of the public for each individual waste shipment.
---------------------------------------------------------------------------
\1\ 10 CFR 71.97 requires that States receive advance notification
of shipments of irradiated reactor fuel and of some shipments of other
wastes in large quantities. In addition, NRC regulations require
reporting of certain events (unplanned releases or exposures, including
those from transportation, for example), and these are made public.
Question 2. As far as risk is concerned, is there a difference
between FUSRAP, NORM or low-level material if each were the same volume
with the same level of radioactivity?
Response. The risk to human health from these different materials
would be identical if persons were exposed to the same volumes and
levels of radioactivity, assuming other factors affecting risk were the
same.\2\ None of these other factors affecting risk is unique to any
one of these waste types.
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\2\ Some of the other factors that could affect risk are the form
of the material (e.g., whether it is soil, debris, or some other solid
form), its physical and chemical characteristics (e.g., solubility),
and human behavior (e.g., how many hours a worker might be exposed to
the materials). As noted above, none of these is unique to any one of
these waste types. Another factor affecting risk could be the presence
of hazardous materials, in addition to radioactive materials, but these
are not unique to any of these waste types either. Technologically
enhanced naturally occurring radioactive materials (TENORM) may contain
not only uranium, thorium, and/or radium, but also heavy metals, such
as lead, cadmium, and mercury, and hazardous chemicals from leachate
used to extract materials of value from ores. Like TENORM, some
Formerly Utilized Site Remedial Action Program (FUSRAP) materials may
also contain hazardous wastes that include metals that were not
extracted from the ore, and leachate used to extract the uranium and/or
thorium. LLW may also contain hazardous materials.
Question 3. Can a worker at an NRC low-level radioactive waste
disposal facility legally be exposed to more radiation than a worker at
a RCRA subtitle C facility?
Response. No. The occupational dose limits for workers at NRC-
licensed facilities are contained in 10 CFR 20.1201. The annual limit
is a total effective dose equivalent of 5 rems (0.05 Sv).\3\ The
occupational dose limits for workers at non-NRC licensed facilities
(such as a State or U.S. Environmental Protection Agency (EPA)
permitted Resource Conservation and Recovery Act (RCRA) disposal
facility) are contained in the Occupational Safety and Health
Administration (OSHA) regulations at 29 CFR 1910.1096, ``Ionizing
Radiation.'' The whole body dose limit is 1.25 rems (0.0125 Sv) per
quarter for workers in restricted areas controlled by the employer and
subject to certain prescribed protective measures in OSHA's regulation.
Although there are some differences between NRC and OSHA regulations as
to how the dose is to be calculated, the differences are generally not
significant. Workers at a RCRA Subtitle C facility accepting TENORM
would ordinarily be covered by these OSHA radiation control
requirements. However, if this is not the case such workers would be
considered members of the general public, and therefore subject to
EPA's guidance for exposure to members of the general public.
---------------------------------------------------------------------------
\3\ In addition, licensees must implement a program to achieve
doses that are as low as is reasonably achievable (ALARA). In practice,
the ALARA program reduces doses well below 5 rems/year (0.05 Sv/yr).
---------------------------------------------------------------------------
Particular RCRA facilities could also be subject to more stringent
limits imposed by a State permitting agency.
Question 4. From the perspective of risk to public health and
worker safety, do you believe that it is safe to dispose of low-
activity radioactive wastes at RCRA subtitle C facilities that have
permit requirements (i.e., concentration levels and worker safety
measures) similar to those of the Buttonwillow facility, EnviroSafe
facility and WCS facility?
Response. Based on our knowledge of RCRA requirements and our
experience in regulating waste disposal, we believe that RCRA landfills
are protective for low-activity wastes. Many of the standards governing
RCRA landfills are similar to those required at NRC-licensed sites
handling 11e.(2) byproduct material (tailings or wastes from extraction
of uranium or thorium from ore). RCRA disposal facilities, like state-
of-the-art mill tailings impoundments subject to NRC licensing, rely,
in part, on a system of liners and leachate detection and collection
systems to prevent releases of hazardous materials to the environment.
RCRA disposal and NRC's mill tailings regulations also address
monitoring and inspection, site selection, and other detailed
requirements. These controls, help protect public health and safety and
the environment from both radioactive and non-radioactive materials.
NRC's mill tailings requirements are more explicit in requiring
measures to ensure the long-term stability of the disposal facility.
NRC does not regulate the Buttonwillow, EnviroSafe, or Waste
Control Specialists (WCS) facilities and therefore the NRC is not
familiar with the details of their design and operation. We are aware
that the Buttonwillow and EnviroSafe facilities have RCRA permits from
their respective States authorizing up to 2000 picocuries/gram (74 Bq/
g3 of radioactivity for disposal. WCS can accept up to 30 picocuries/
gram (1.1 Bq/g) of radium\4\ for disposal. EPA has endorsed up to 2000
picocuries/gram (74 Bq/g) of radioactivity for disposal in RCRA
hazardous waste facilities.\5\
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\4\ The total radioactivity, which includes the decay products of
radium, would be several times larger than this amount. Buttonwillow
and EnviroSafe iimits are expressed as total radioactivity.
\5\ In June 1994, EPA published its MSuggested Guidelines for the
Disposal of Drinking Water Treatment Wastes Containing Radioactivityf
that allows for the disposal of up to 2000 picocuries/gram (74.4 Bq/g)
of radium in RCRA hazardous waste facilities.
---------------------------------------------------------------------------
Given the above, we have no reason to believe that disposal of
these types of materials as described has not been sufficiently
protective.
Question 5. Is there anything additional from the hearing that you
would like to respond to, clarify or expand on? If so, please do so
now.
Response. We have no additional information to provide.
______
Responses by Carl Paperiello to Questions From Senator Bennett
Question 1. In evaluating the regulation of FUSRAP wastes, I have
been concernedabout the current regulatory situation. One of my
greatest concerns is that if the NRC is not regulating pre-1978 waste,
it is not clear to me who is. It has been argued to me that if this
material is Atomic Energy Act (AEA) ``byproduct material,'' it cannot
be regulated by EPA under RCRA, even if NRC is not regulating it.
Further, if this material is AEA ``byproduct material,'' the States
also are preempted from regulating it. In short, it is argued that the
designation of this material as ``byproduct material'' under the AEA--a
designation that I understand the NRC has given this material--means
that if the NRC adheres to its current position that it lacks the
authority itself, no one at all has the authority to regulate the
material. What is your response to these arguments?
Response. We recognize that questions have been raised regarding
the appropriate term to use in describing the ore-processing residuals
at FUSRAP sites.\1\ Terms applied to the material have not always been
consistently applied. However, the issue you raise is primarily one of
jurisdiction over clean-up of the material. Based on the Uranium Mill
Tailings Radiation Control Act of 1978 (UMTRCA) and its legislative
history, NRC believes that the material in question constitutes pre-
UMTRCA mill tailings not subject to NRC regulation, even though the
material may be chemically, physically, and radiologically similar to
section 11e.(2) byproduct material. The distinction between pre-UMTRCA
and post-UMTRCA findings is a legal one, not a technical one.
---------------------------------------------------------------------------
\1\ This issue was specifically raised in a recent commission
decision. However, the commission did not find it necessary to address
the issue at that time. International Uranium (USA) Corporation, CLI-
00-1, 51 NRC 9, 14 (2000).
---------------------------------------------------------------------------
The Commission's regulatory authority under UMTRCA only extends to
mill tailings that have been produced by a person licensed by NRC as of
the effective date of UMTRCA or thereafter. However, neither the
language of the statute nor the legislative history of UMTRCA suggests
that States would lack the authority to regulate mill tailings not
covered by either Title I or Title II of UMTRCA. Any State law
regulating the disposal of FUSRAP processing residuals would not
conflict with Federal law, because the Atomic Energy Act (AEA), as
amended by UMTRCA, and NRC's implementing regulations do not address
disposal of FUSRAP processing residuals.
It is NRC's view that the preemption of State authority by NRC
regulation in the field of radioactive materials is limited to those
materials and activities over which NRC has been given regulatory
authority by Federal statute. This argument has support in Federal case
law. In Illinois v. Kerr-McGee Chemical Corp.,\2\ the Court of Appeals
stated that ``The Commission has exclusive authority to regulate
radiation hazards associated with the materials and activities covered
by the Atomic Energy Act. . . .'' \3\ As noted above, the ore-
processing residuals from FUSRAP sites are not covered by the AEA for
the purposes of NRC's regulatory jurisdiction, as amended by UMTRCA.
Therefore, NRC's does not have exclusive authority to regulate the
radiation hazards posed by the disposal of FUSRAP ore-processing
residuals. Because NRC lacks jurisdiction over the disposal of FUSRAP
mill tailings material, there is no bar of Federal preemption under the
AEA with respect to this material and nothing in the AEA prohibits the
States from regulating the disposal of that material.
---------------------------------------------------------------------------
\2\ 677 F.2d 571 (7th cir.), cert. denied, 459 U.S. 1049 (1982).
\3\ 677 F.2d at 581 (emphasis added).
Question 2. In several places, your testimony states that the
Appropriations Committee has given the NRC guidance not to involve
itself in FUSRAP waste. You reference language from last year's Energy
& Water Appropriations committee report that indicates that Congress
does not intend NRC to license the Corps' activities under GERCLA at
FUSRAP cleanup sites. Does the NRC take this language to mean that it
should not regulate off-site disposal of FUSRAP waste and require
licensing of disposal sites?
Response. We do not believe that the Committee language
specifically addresses the issue of off-site disposal of FUSRAP mill
tailing wastes and we have not received Congressional direction on off-
site disposal issues. Of course, if Congress believes that NRC should
regulate the off-site disposal of these materials, we stand ready to
provide information and assistance to Congress in developing the
necessary legislation.
Question 3. Exactly where in Sec. 83 or in the related legislative
history does it say that NRC has no authority over wastes that satisfy
the definition of 11e.(2) byproduct material MED or AEC generated by
processing for uranium or thorium if generated prior to 1978? (Please
assume that such materials are under the control of a private entity
and not DOE or are going to be removed from DOE control).
Response. The plain language of Section 83 explicitly directs the
Commission to impose certain terms and conditions on ``[a]ny license
issued or renewed after the effective date of this section under
section 62 or section 81 for any activity which results in the
production of any byproduct material, as defined in section 11e.(2).''
This language clearly indicates that NRC's regulatory authority and
responsibilities for the material are prospective. That is, Congress
intended NRC to reguiate only those mill tailings materials at existing
licensees' sites and those newly licensed after UMTRCA was enacted.
The FUSRAP sites did not have NRC licenses as of the effective date
of UMTRCA; therefore, the mill tailings produced at those sites are not
subject to NRC regulatory authority. Because the FUSRAP mill tailings
were not produced under an NRC license, it is not material over which
NRC has control, and NRC lacks the authority to require a license for
possession and disposal of it.
The legislative history indicates a Congressional intent for NRC
authority under Title II of UMTRCA to apply only to existing and future
licensed sites, not to unlicensed sites. The April 5, 1999, Director's
Decision regarding NRC regulation of the U.S. Army Corps of Engineers'
FUSRAP activities pointed to floor remarks by Senator Hart regarding
the amended version of H.R. 13650, the bill from which UMTRCA was
derived.\4\ These remarks read:
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\4\ United States Army Conzs of Engineers, DD-99-7, 49 NRC 299
(1999).
Although the NRC licenses active uranium mining and milling
activities, existing law does not permit the Commission to
regulate the disposal of mill tailings once milling and mining
operations cease and the operating license expires. It is that
authority to regulate tailings after miliing operations cease,
---------------------------------------------------------------------------
that we propose be given to the NRC.\5\
\5\ 124 CONG. REC. S18748 (daily ed. Oct. 13, 1978).
The 1999 Director's Decision concludes that ``[b]ecause the
residual material at many FUSRAP sites was generated in activities that
were not licensed when UMTRCA was enacted, or thereafter, NRC today has
no basis to assert any regulatory authority over handling of the
residuals at those sites.''\6\
---------------------------------------------------------------------------
\6\ 49 NRC at 308.
---------------------------------------------------------------------------
Other more specific references in the legislative history provide a
clear indication of Congress' intent in passing the statute. In House
Report 95-1480, Part 2, Congress stated that Title II would provide NRC
``[a]dditional authority to effectively control tailings at these
active and all future sites.''\7\ This statement indicates that the new
authority provided to NRC would not extend to sites unlicensed at the
effective date of UMTRCA. Elsewhere, the House Report, in explaining
Title II, states that ``Title II would prospectivelygrant the uranium
mill tailings licensing function to the NRC.''\8\ This statement would
have been meaningless, unless it was understood to mean that the
legislation granted the regulatory function to NRC only with respect to
then current and future licensed sites.
---------------------------------------------------------------------------
\7\ H.R. Rep. No. 95-1480, pt. 2 at 30 (1978).
\8\ Id. at 46 (quoting EPA Administrator Costle)(emphasis added).
---------------------------------------------------------------------------
As a general matter, by passing UMTRCA, Congress sought to address
the issue of mill tailings by creating two programs: a program for the
remediation of unlicensed, inactive sites (Title I) and a regulatory
program for licensed, active operations (Title II). The regulatory and
remedial programs established by the Act did not, however, address all
sites with mill tailings. In particular, it is clear from the
legislative history that Congress was aware of the FUSRAP sites and
concluded that those sites would not be handled under UMTRCA.
House Report 95-1480, Part 2 contains a section-by-section analysis
and committee comments on UMTRCA. In the comment section regarding
Title I of UMTRCA, the Report states:
The committee understands there that [sic] are a number of
federally owned or controlled sites with such materials or
tailings, such as the TVA site mentioned earlier and a DOE site
in Lewiston, N.Y., and some in New Jersey. The committee wants
to have these sites identified by the DOE and have data
concerning the health or environmental problems associated with
the sites and on what, if anything, is being done to eliminate
such problems and when.\9\
\9\ Id. at 41.
Each of the above-mentioned sites was a FUSRAP site at the time
Congress enacted UMTRCA. Just before the quoted section of the report,
Congress stated that DOE would be required to report to Congress on the
health or environmental problems at Title I sites.\10\ The fact that
Congress specifically and separately identified these sites after it
had issued a broad statement regarding reports on Title I sites
indicates that Congress viewed the FUSRAP sites as separate and
distinct from the Title I sites and that Congress felt it had to name
the FUSRAP sites in order to ensure that DOE would report on both Title
I and FUSRAP sites.
---------------------------------------------------------------------------
\10\ Id.
---------------------------------------------------------------------------
In addition to the House Report, Congress received testimony from
James L. Liverman, the Acting Assistant Secretary for Environment at
the newly created Department of Energy, the individual responsible for
the FUSRAP program.\11\ Liverman's testimony demonstrates that there
were inactive sites that needed clean-up and that they were being
addressed apart from Titles I and 11 of UMTRCA. In discussing a number
of sites that DOE investigated to determine whether clean-up would be
necessary, Liverman informed the House Subcommittee on Energy and the
Environment that DOE was ``[n]ot proposing that as a part of this bill
because we have not yet accurately determined what the cost may be, but
I do want to mention it because it is another thing that is coming
across the table, but it is not covered in this legislation.'' \12\ The
sites referenced by Liverman were FUSRAP sites.
---------------------------------------------------------------------------
\11\ See Uranium Mill Tailinas Control: Hearings on H.R. 13382,
H.R.12938, H.R.12535, and H.R. 13049 Before the Subcomm. on Energy and
the Environment of the House Comm. on Interior and Insular Affairs,
95th Cong. 41 (1978).
\12\ Id. at 42.
Question 4. Please explain why 10 CFR 40.2(b) makes no reference to
such materials having to be licensed by NRC but rather appears to
suggest that NRC can regulate such materials whether licensed or not as
long as they are not at a DOE controlled Title I site.
Response. We assume that the regulation in question is 10 CFR 40.2a
(``Coverage of inactive tailings sites''). 10 CFR 40.2a states:
(a) Prior to the completion of the remedial action, the Commission
will not require a license pursuant to 10 CFR chapter I for possession
of residual radioactive materials as defined in this part that are
located at a site where milling operations are no longer active, if the
site is covered by the remedial action program of Title I of the
UMTRCA. The Commission will exert its regulatory role in remedial
actions primarily through concurrence and consultation in the execution
of the remedial action pursuant to Title I of the UMTRCA. After
remedial actions are completed, the Commission will license the long-
term care of sites, where residual radioactive materials are disposed,
under the requirements set out in Sec. 40.27.
(b) The Commission will regulate byproduct material as defined in
this part that is located at a site where milling operations are no
longer active, if such site is not covered by the remedial action
program of Title I of the UMTRCA. The criteria in Appendix A of this
Part will be applied to such sites.\13\
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\13\ See 45 Fed. Reg. 65521 (Oct. 3, 1980); as amended at 55 Fed.
Reg. 45591, 45598 (Oct. 30, 1990).
---------------------------------------------------------------------------
Concerns have been raised that this regulation is inconsistent with
the position that NRC lacks jurisdiction over pre-UMTRCA mill tailings.
The inconsistency disappears if the intent of the regulation is
understood. Section 83 of UMTRCA and the legislative history of UMTRCA
make it clear that the scope of Section 40.2a is necessary in order to
cover a specific type of site--a site at which processing no longer was
taking place, but which retained a license as of the effective date of
UMTRCA. UMTRCA's legislative history demonstrates that at least one, if
not more, such sites existed. In his testimony before a Senate
subcommittee, Dr. Liverman of DOE indicated that, although DOE had
studied such a site at Edgemont, South Dakota, DOE excluded this site
from its list of Title I sites because the site remained under license
by the NRC.\14\ The status of the Edgemont site was further addressed
in section 21 of NRC's appropriations legislation for Fiscal Years 1982
and 1983. The Conference Report for the legislation explained that
``[a]lthough the Edgemont site is an inactive uranium mill site, it was
not included in the remedial action program established by [Title I of
UMTRCA] because TVA [the Tennessee Valley Authority] held a current
license from NRC for the mill.''\15\
---------------------------------------------------------------------------
\14\ See Uranium Mill Site Restoration Act and Residual Radioactive
Materials Act: Hearings on S. 3008. S. 3078, and S. 3253 Before the
Subcomm. on Energy Production and Supply of the Comm. of Energy and
Natural Resources 95th Cong. (1978) at 43. Additionally, the State of
New Mexico submined testimony to the Senate committee in which it
identified four inactive sites that were then under New Mexico
Agreement State license, but which were excluded from the list of Title
I sites. Id. at 115. Although two licensed New Mexico sites were
eventually included in the Title I program, it appears that the other
licensed, inactive sites were covered under the regulatory program
created by Title II.
\15\ H.R. Rep. No. 97-884, at 49 (1982).
---------------------------------------------------------------------------
NRC adopted 10 CFR 40.2a in order to ensure that such a licensed
site would not fall outside the reach of remedial action by either NRC
or DOE. First, inactive Title I sites could be remediated by DOE under
its UMTRCA authority. Second, active and future licensees of mill
tailings sites could be regulated by NRC under its UMTRCA Title II
powers. Third, at the time UMTRCA was enacted, FUSRAP sites were
already under the authority of DOE (and were later transferred to the
Corps of Engineers). Therefore, the only type of site that NRC needed
to ensure would not be excluded from remedial action by either DOE or
NRC was an inactive, but licensed site. Section 40.2a is intended to
address these sites.
Question 5. Given that NRC and DOE as successors to the AEC have
regulatory authority over AEA materials and that both agencies have
stated that certain FUSRAP wastes qualify as 11e.(2) byproduct
material, how is it possible for an unlicensed entity to have
possession of such materials in light of Sec. 81 of the AEA?
Response. As discussed in response to previous questions, it is the
NRC's position that the mill tailings from the FUSRAP sites constitute
pre-UMTRCA mill tailings not subject to NRC regulation. Accordingly,
for the purposes of NRC oversight, the licensing requirements of
Section 81 do not apply to this material.
Question 6. Is NRC reversing the position stated in 57 Fed. Reg.
20,527 (May 13, 1992) that materials that satisfy the 11e.(2)
definition generated by MED/AEC ``qualify as 11e.(2) byproduct
material''? And if so, why?
Response. The Commission recognizes that there has not been
consistency in the labels applied to the ore-processing residuals at
FUSRAP sites. Nevertheless, when considered in its full context, NRC
did not intend to convey in the 1992 Federal Register notice (``Uranium
Mill Facilities, Request for Public Comments on Revised Guidance on
Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct
Material in Tailings Impoundment and Position and Guidance on the Use
of Uranium Mill Feed Materials Other Than Natural Ores'') that the mill
tailings at FUSRAP sites were 11e.(2) material. In that notice, NRC
indicated that ``[G]overnment contracts were issued for thorium source
material used in the Manhattan Engineering District and early Atomic
Energy Commission programs. Wastes resulting from that processing and
disposed of at these [FUSRAP] sites would qualify as 11e.(2) byproduct
material.''\16\ [emphasis added.]
---------------------------------------------------------------------------
\16\ 157 Fed. Reg. 20525, 20527 (May 13, 1992).
---------------------------------------------------------------------------
This discussion of the FUSRAP wastes falls under section 4 of the
notice entitled ``Types of Wastes Being Proposed for Disposal of
Tailings Piles.'' The introductory paragraph expressly states:
The NRC and the Agreement States continue to receive requests
for the direct disposal of non-11e.(2) byproduct material into
uranium mill tailings piles. The following general categories
of non-11e.(2) byproduct material illustrates the requests
submitted to NRC and the Agreement States for disposal into
uranium mill tailings piles licensed under authority
established by Title II of UMTRCA: . . .\17\
---------------------------------------------------------------------------
\17\ Id. (emphasis added).
FUSRAP is one of four general categories that follow the
introductory paragraph. Elsewhere, the notice indicates that ``. . .
the term ``non-11e.(2) byproduct material'' will be used to refer to
radioactive waste that is similar to byproduct material, as defined in
the AEA in Section 11e.(2) but is not legally considered to be 11e.(2)
byproduct material.'' \18\ Given this context, it is our view that NRC
clearly considered the FUSRAP processing residuals to be non-11e.(2)
material. We believe that the phrase quoted, in part, in the question
(``would qualify as 11e.(2) byproduct material'') is best understood as
indicating that the FUSRAP material ``would qualify as 11e.(2)
byproduct material'' if it fell under NRC's jurisdiction in the first
place. We understand that the notice could and should have been
structured more carefully in order to avoid any misunderstanding.
Nevertheless, the Commission believes that the notice classifies pre-
UMTRCA mill tailings as non-11e.(2) byproduct material.
---------------------------------------------------------------------------
\18\ Id. at 20526.
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______
Response by Carl Paperiello to Question From Senator Moynihan
Question 1. The Conference of Radiation Control Program Directors
(CRCPD) has formally urged the Commission to regulate radioactive
byproduct material at FUSRAP sites that are generated prior to 1978. I
note that Paul Merges with my state is the upcoming chair of the CRCPD.
Why doesn't the NRC heed the advice of this 50-state radiation
protection group and regulate pre-1978 FUSRAP waste just like it
regulates the same waste generated after 1978?
Response. The NRC seeks to conform its actions to the law. UMTRCA
has been understood to provide that the NRC does not have authority to
regulate material generated at sites that were not licensed at the time
UMTRCA was passed. If Congress believes that NRC should regulate these
materials, we stand ready to provide information and assistance to
Congress in amending UMTRCA.
______
Responses by Carl Paperiello to Questions From Senator Boxer
Question 1a. In your oral testimony, you stated that ``[T]he NRC
believes that both RCRA landfills and NRC license disposal facilities
should be able to provide adequate protection for the public and the
environment for TENORM and mill tailings types of material.'' You
appear to base this assessment on the fact that some RCRA facilities
have adopted limits on the amount of radioactive materials that may be
accepted and ``at least one'' has limits on worker exposure.''
Please provide the environmental and public health studies that
form the foundation of your assessment.
Response. The basis for this statement is included in the response
to Senator Smith's fourth question. RCRA Subtitle C landfills have a
number of design features similar to those required for NRC-licensed
mill tailings disposal facilities. The NRC's mill tailings regulations
are based largely on the RCRA requirements. Our statement is also based
on the fact that these facilities are explicitly authorized in their
State permits to accept certain non-AEA radioactive materials, and some
are subject to OSHA worker protection regulations for radiation
exposures. The radioactivity concentration limit, 2000 picocuries per
gram (74 Bq/g), in two of the facilities' permits (Buttonwillow and
EnviroSafe), is the same as that contained in EPA guidance for disposal
of drinking water treatment waste in RCRA landfills.\1\ Waste Control
Specialists has a limit of 30 picocuries per gram (1.1 Bq/g) of radium,
as noted in response to Chairman Smith's fourth question.
---------------------------------------------------------------------------
\1\ U.S. Environmental Protection Agency, 1994. ``Suggested
Guidelines for the Disposal of Drinking Water Treatment Wastes
Containing Radioactivity.'' Washington, D.C.
Question 1b. In your oral testimony, you stated that ``[T]he NRC
believes that both RCRA landfills and NRC licensed disposal facilities
should be able to provide adequate protection for the public and the
environment for TENORM and mill tailings types of material.'' You
appear to base this assessment on the fact that some RCRA facilities
have adopted limits on the amount of radioactive materials that may be
accepted and ``at least one'' has limits on worker exposure.
Please indicate what federal legal requirements, if any, mandate
that RCRA facilities provide the same level of worker protection, site
closure assurances and radioactive monitoring as is required of an NRC
licensed facility.
Response. NRC does not regulate RCRA facilities. As a result, EPA
and OSHA are in a better position to describe the specific Federal
requirements for ensuring that worker health and the environment are
adequately protected at such facilities. However, as we note in
response to Chairman Smith's fourth question, we believe RCRA hazardous
waste facilities are protective for low- activity wastes because they
are subject to detailed requirements and controls on site selection,
monitoring and inspection and they use liners and leachate detection
and collection systems to prevent releases to the environment. In
addition, OSHA has established a 5 rem/yr. Limit for exposure to
workers at non-NRC regulated facilities in 29 CFR 1910.1096. We also
believe that NRC-regulated and licensed disposal facilities, because
they are subject to requirements that focus on protection of public
health, safety, and the environment from radiological hazards, may
afford slightly more protection against radiological hazards.
As EPA testified, States are authorized under RCRA to establish
standards for the disposal of specific types of Federally unregulated
radiological material. In practice, State permitting agencies have
prescribed conditions for acceptance of pre-UMTRCA mill tailings in
RCRA permits.
Question 2a. Dr. Westphal invited you to respond to the following
statement in his oral testimony, but you were not able to respond given
time constraints. ``As I understand it . . . in these sites [FUSRAP
sites] the level of contamination that remains today in some of these
sites has had over time, you know, the hot stuff has been removed, but
the stuff that remains has had the opportunity to mix with clean soils
and to be dispersed in the area. So to some extent this material is--
and I suppose that is the reason that NRC doesn't regulate this
material. It is pre-1978. Post-1978 the material hasn't had those
opportunities to disperse in soils and it is therefore much more
dangerous to public health and regulates that.''
Does mixing radionuclides with clean soil reduce the radioactivity
of the radionuclide, cause the radionuclide to be less long-lived or
cause the radionuclide to be less harmful? If so, could you please
provide documentation.
Response. The radiological properties of individual radionuclides,
such as half-life and the type of radiation emitted and its energy, are
not affected by dilution with clean soil. The risk to human health from
soil contamireated with radioactivity, however, is often significantly
affected by concentration, so that dilution would lower risk. ``Clean''
soils (or natural soils) contain uranium, thorium, and radium, which
are the same radionuclides found in many radioactive wastes, including
FUSRAP waste.
Protection of human health and the environment is not dependent
solely on the particular radionuclides in radioactive materials.
Generally, the lower the concentration, the fewer the number of
controls that would be needed to safely manage radioactive materials
containing uranium, thorium, and radium. Undiluted uranium mill
tailings should be disposed in a regulated tailings impoundment or
hazardous waste disposal facility. On the other hand, soil containing
small concentrations of uranium, thorium, and radium requires no
special treatment.
Question 2b. Dr. Westphal invited you to respond to the following
statement in his oral testimony, but you were not able to respond given
time constraints. ``As I understand it . . . in these sites [FUSRAP
sites] the level of contamination that remains today in some of these
sites has had over time, you know, the hot stuff has been removed, but
the stuff that remains has had the opportunity to mix with clean soils
and to be dispersed in the area. So to some extent this material is--
and I suppose that is the reason that NRC doesn't regulate this
material. It is pre-1978. Post-1978 the material hasn't had those
opportunities to disperse in soils and it is therefore much more
dangerous to public health and regulates that.''
Is it the case that hazardous waste facilities have numerous
chemicals that act as chelating or organic complexing agents, that,
when mixed with radioactive waste, can increase the speed with which
the radioactive waste migrates in the environment? What analyses, if
any, has the federal government performed to estimate the risk this may
pose to public health or the environment in the case of disposing of
11e.(2) waste at RCRA landfills.
Response. EPA or State permitting agencies are in a better position
to answer this question. We note, however, that if such chemicals were
present they would also affect migration of hazardous wastes, such as
heavy metals.
Question 2c. Dr. Westphal invited you to respond to the following
statement in his oral testimony, but you were not able to respond given
time constraints. ``As I understand it . . . in these sites [FUSRAP
sites] the level of contamination that remains today in some of these
sites has had over time, you know, the hot stuff has been removed, but
the stuff that remains has had the opportunity to mix with clean soils
and to be dispersed in the area. So to some extent this material is--
and I suppose that is the reason that NRC doesn't regulate this
material. It is pre-1978. Post-1978 the material hasn't had those
opportunities to disperse in soils and it is therefore much more
dangerous to public health and regulates that.''
Further, is Dr. Westphal correct that NRC doesn't regulate pre-1978
byproduct material because that material had the opportunity to mix
with clean soils and that NRC regulates post-1978 material because is
it much more dangerous to public health since it hasn't had the
opportunity to mix with clean soils? If so, please provide written
documentation of this NRC rationale for not regulating pre-1978
material
Response. No. The NRC's basis for not regulating pre-UMTRCA mill
tailings is a legal one, based on our understanding of UMTRCA and its
legislative history.
Question 3. Do you agree that radioactive waste, wherever they are
disposed of, should be disposed of to protect groundwater to at least
the Maximum Contaminant Levels under the Safe Drinking Water Act, as is
required under CERCLA?
Response. Our position, consistent with internationally recommended
radiation practices, is that the regulatory dose criteria for
radioactive waste disposal must be protective of health, safety, and
the environment, considering all exposure pathways, including
groundwater, with ample safety margins. NRC and EPA have had long-
standing fundamental differences on how groundwater should be
protected. These differences were the subject of a recent U.S. General
Accounting Office (GAO) report,\2\ which notes that EPA's maximum
contaminant levels (MCLs) for drinking water are not up to date and are
based on obsolete methods of radiation dose estimation. These result in
radiation doses (for different contamination limits) that are over a
thousand times lower than background radiation for some radionuclides,
and, for others, well above the 4 mrem/year dose on which the MCLs were
based. Accordingly, we do not believe that current MCLs provide a
sound, rationale basis for decision-making with respect to protecting
groundwater. However, we did note in our formal comments on the draft
GAO report, ``Low-Level Radiation Standards,'' that adoption by EPA of
updated MCLs at a uniform 4 mrem/year total effective dose equivalent
for each radionuclide would go part way to resolving our longstanding
differences.
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\2\ U.S. General Accounting Office, June 2000. ``Radiation
Standards: Scientific Basis Inconclusive, and EPA and NRC Disagreement
Continues.'' GAO/RCED-00-152. Washington, D.C.
Question 4. Should facilities that receive 11e.(2) material be
required to have groundwater monitoring requirements for specific
radionuclides to verify that the facility is not leaking radioactive
contaminants to the groundwater on- and off-site? Further, should there
be action limits established for radionuclides that would trigger
corrective action should the facility leak or should controls fail and
exposures occur? How do RCRA facilities and NRC-licensed facilities
compare in these areas?
Response. Monitoring of contaminant movement and leakage in a
disposal facility is a standard tool for ensuring that facilities are
functioning safely. EPA's RCRA regulations in 40 CFR Part 264 require
monitoring, although radioactive materials are not specified in the
list of constituents. EPA stated in its written testimony for the July
25, 2000, hearing of the Committee that States which regulate RCRA
facilities can establish standards for the disposal of Federally
unregulated radiological material, such as naturally occurring
radioactive material (NORM), and material that is not regulated at the
Federal level (this could include pre-UMTRCA mill tailings). Thus,
State RCRA permitting agencies are responsible for determining and
establishing the necessary permit conditions, including any that might
be needed or required for radionuclides. In making a determination on
monitoring, such agencies would probably consider the kinds and amounts
of radionuclides being disposed of, the likelihood that barriers and
controls would not function, and whether monitoring programs for
hazardous materials would detect all leaks and therefore be a suitable
surrogate for radioactive materials.
With respect to the comparison between RCRA facilities and NRC-
licensed facilities, we note that NRC regulations and license
conditions for licensed mill tailings impoundments specify detailed
monitoring requirements for specific radionuclides. The monitoring
required at RCRA facilities would depend upon the permit conditions
established by the relevant State agencies.
Question 5. In your oral testimony, you stated that non-
occupational exposures at facilities taking 11e.(2) material to be 100
millirem. It was my understanding, however, that NRC-licensed
facilities are to produce collective doses to the public of no more
than 25 milirem, drinking water doses of not more than 4 millirem, and
air doses for non-NRC sites under NESHAP of 10 millirem. Is that
correct? What are the applicable standards and citations?
Response. As a general rule, an individual member of the public
cannot receive a total effective dose equivalent that exceeds 100
millirem per year (1.0 mSv/yr) from licensed activities. 10 CFR 20.1301
(a)(1). As you note, some NRC licensees are subject to a 25 millirem
per year (0.25 mSv/yr) dose limit, such as those terminating their
licenses in accordance with 10 CFR Part 20 Subpart E and those
operating a uranium mill. No NRC regulations incorporate a 4 millirem
per year (0.04 mSv/yr) dose limit, although EPA has established such a
dose limit under the Safe Drinking Water Act as an ``at the tap''
standard for public drinking water. The air dose limit of 10 millirem
per year (0.10 mSv/yr) originally contained in EPA's National Emission
Standards for Hazardous Air Pollutants (NESHAP) is reflected in NRC
regulations 10 CFR 20.1101 (d). EPA should be consulted for its
applicability to non-NRC licensees.
With respect to non-NRC licensed facilities that accept radioactive
materials, including mill tailings, according to the EPA testimony,
State RCRA permitting authorities would establish the safety criteria
for these facilities. These may be concentration limits (e.g., 2000
picocuries per gram (74 Bq/g)), or could be dose limits to members of
the public and may also include design, siting, and operational
controls.
Finally, and as noted earlier in our response to Chairman Smith's
third question, OSHA has established a 1.25 rem (.025 Sv) per quarter
(5 rem per year (0.05 Sv/yr)) limit for exposure of workers at non-NRC
regulated facilities. 29 CFR 1910.1096. NRC regulations for workers
under the 10 CFR Part 20 radiation protection program also allow up to
5 rem/year (0.05 Sv/yr). 10 CFR 20.1201. Workers at an NRC-licensed
site who are not covered by the licensee's radiation control program
(e.g., administrative staff in offices are often not covered) are
considered by NRC to be members of the public, and subject to the 100
millirem per year (1.0 mSv/yr) dose limit in 10 CFR Part 20.
______
Responses by Carl Paperiello to Questions From Senators Baucus
and Graham
Question 1. As a policy matter, what do you believe is the
appropriate dividing line between NRC and EPA jurisdiction when it
comes to regulating the disposal of low-activity radioactive waste
materials? Should the NRC regulate those materials associated with the
nuclear fuel cycle, leaving to EPA the regulation of other materials?
Response. The Commission believes that a re-examination of the
dividing line needs to be conducted and has taken steps to begin this
process, at least for low-level radioactive materials with uranium,
thorium, and/or radium contamination. Historically, NRC has regulated
materials generated by the nuclear fuel cycle, but not NORM or TENORM.
Pre-UMTRCA mill tailings are also not regulated by NRC and are often
similar radiologically to TENORM.
In a March 9, 2000, memorandum to NRC staff, the Commission
directed the staff to initiate interactions with EPA, OSHA, the States,
the Army Corps of Engineers, DOE, the Department of Interior, and the
Department of Transportation to evaluate existing and planned
regulation of low-level source materials, or materials containing less
than 0.05% uranium and/or thorium. The Commission also requested that
the staff explore the willingness of these agencies to assume
responsibilities for certain levels of these kinds of materials. We
believe that there may be opportunities for managing these low-end
materials with more-risk informed and consistent approaches than the
current approach that is largely based on the origin of the waste
(e.g., the nuclear fuel cycle).
Question 2. You have taken the position that NRC does not have
authority over the disposal of FUSRAP mill tailings. Does that mean
that you cannot regulate the disposal of such material even at a site
that is otherwise regulated by the NRC? Please explain your reasoning
on this matter.
Response. Pre-UMTRCA mill tailings may be licensed if sent to an
NRC or Agreement State licensee, under certain limited conditions. If
the pre-UMTRCA mill tailings are sent to a licensed milling facility,
where they are processed primarily for their source material content,
such post-UMTRCA processing would convert the mill tailings into
material that is under NRC jurisdiction. If the material is sent to an
NRC licensee for direct disposal without processing, the tailings
themselves would not be under NRC jurisdiction at the time of the
transfer. The mere transfer of the pre-UMTRCA mill tailings cannot
convert the material into post-UMTRCA section 11e.(2) byproduct
material over which NRC has direct authority. However, NRC would have
jurisdiction over the licensee and the licensed disposal activities.
Although the pre-UMTRCA material itself would not be licensed, the
licensee would be responsible under 10 CFR Part 20 for controlling the
doses from all radioactive materials under its control, whether
licensed or unlicensed. In such a case, NRC would take regulatory
action to ensure that the licensee complies with all license and
regulatory requirements in its handling and processing of material
brought onsite.
Question 3. What would you guess is the basis for the adoption of a
2,000 picocuries limit on waste activity?
Response. The 2000 picocuries per gram (74 Bq/g) limit is
incorporated into DOT regulations in 49 CFR 173.403 (expressed as 0.002
microcuries per gram in the regulation) in the definition of
radioactive material. It is also in NRC regulations in 10 CFR 71.10 as
the limit below which materials are exempt from NRC transportation
requirements in 10 CFR Part 71. Below this concentration limit, DOT no
longer considers material to be subject to the DOT regulations for
shipping radioactive materials. The inclusion of the 2000 picocuries
per gram (74 Bq/g) concentration limit in the regulation dates back to
a revision to the DOT regulations in 1968. This revision incorporated
the suggested regulations established by the International Atomic
Energy Agency (IAEA) in Safety Series No.6, ``Regulation for the Safe
Transport of Radioactive Materials.'' The basis for the concentration
limit is not provided in IAEA Safety Series No. 6 nor in Federal
Reaister notices. However, the general philosophy in these regulations
is that as the concentration of radioactive material increases, the
requirement for more protective packaging and more stringent hazards
communications increase in order to maintain safety of the public
during the transportation process.
This limit has been used in areas other than transportation. For
example, the EPA document, ``Suggested Guidelines for the Disposal of
Drinking Water Treatment Wastes Containing Radioactivity,'' states that
waste with concentrations less than 2000 picocuries per gram (74 Bq/g)
may be acceptable for disposal in RCRA hazardous waste landfills.
__________
Statement of Dr. Joseph W. Westphal, Assistant Secretary of the Army,
Department of the Army Office of the Assistant Secretary of the Army
(Civil Works)
Thank you for the opportunity to explain the U.S. Army Corps of
Engineers policies and practices with respect to the management and
disposal of low-activity radioactive materials under the Formerly
Utilized Sites Remedial Action Program (FUSRAP). Accompanying me today
are: Ms Julie Peterson, a Corps health physicist, Ms Noelle Simpson, a
Corps Assistant Counsel for Environmental Restoration, Regulation and
Compliance, and Stephen Keefer and George Sunderland of the Army Audit
Agency.
The Department of Energy (DOE) initiated FUSRAP in the 1 970's to
address radiological contamination remaining at sites contaminated as a
result of the Nation's early atomic energy development program. Most of
these sites were cleaned up according to standards in effect when these
activities were completed and released for unrestricted use. DOE
reviewed several hundred possible sites. A total of 46 sites, five
sites of which Congress later directed DOE to remediate, have been
included in the program.
In October 1997, responsibility for completing cleanup at 21 sites
where DOE had not yet completed remedial activities was transferred to
the Corps in the Fiscal Year 1998 Energy and Water Development
Appropriations Act (P. L. 105-62). The Corps actions in cleaning up
FUSRAP sites since October 1997 may be summarized as follows:
seamless transition from DOE: no slippage in cleanup
activities as a result of the transfer;
established partnerships with local communities, State and
Federal regulators;
executed a memorandum of understanding with the Department
of Energy;
awarded a nationwide disposal contract at rates of 50-60
percent or more less than what they were at the time of transfer;
execution approaching or exceeding work scheduled during
FY98 and FY99;
removed and safely disposed of 324,000 cubic yards of
material;
completion of remedial activities at three of the 21 sites
remaining to be completed; and
Records of Decision at 6 sites.
The Corps has achieved this while putting worker safety, and the
protection of public health and the environment first.
REGULATORY FRAMEWORK OF FUSRAP REMEDIATION
The Corps performs response actions at FUSRAP sites in accordance
with the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) and the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP), as authorized in Section 611 of the
Energy and Water Development Appropriations Acts for 2000. This
statutory regime regulates the entire FUSRAP cleanup process, with
external oversight from EPA and the States. This regulatory regime also
sets criteria to guide the development of the final cleanup plan for
the site. CERCLA and the NCP also set a framework for involving
regulators and the public in the cleanup selection process.
For Federal agencies conducting response actions, CERCLA waives
Federal, State and local procedural requirements of a permit for work
performed entirely onsite. Although an agency is not required to adhere
to the administrative aspects of permit requirements, the agency must
meet the substantive requirements of an otherwise applicable permit.
This permit waiver, however, does not extend to activities performed
offsite, such as transportation and disposal.
The Corps follows applicable transportation requirements, such as
the Department of Transportation (DOT) regulations under the Hazardous
Material Transportation Act. These regulations specify marking,
labeling, placarding, packaging, and shipping paper requirements for
certain types of hazardous materials. Most FUSRAP materials do not meet
the DOT regulatory definition of radioactive waste because the
materials do not exceed 2,000 picocuries/gram.\1\ FUSRAP material that
is not covered by these transportation regulations is still tracked for
accountability through a chain-of-custody form.
---------------------------------------------------------------------------
\1\ A picocurie is the smallest measure for the intensity of
radioactivity contained in a sample of radioactive material. It
represents one trillionth of a curie, or two disintegrations per
minute.
---------------------------------------------------------------------------
The NCP also mandates that all parties conducting remediation
pursuant to CERCLA authority must comply with the offsite rule. Under
this rule, the Corps notifies the EPA regional offsite coordinator
where the disposal facility is located before materials are shipped to
the disposal site. EPA determines whether the facility proposed for the
disposal is in compliance with all permits or licenses, or has pending
enforcement actions that indicate that the facility may present a risk
of release to the environment. EPA must determine that the facility is
acceptable under the offsite rule before any materials are shipped.
If more than one disposal facility is identified as a potential
option for the waste material, a competitive process will be utilized
to locate the facility which best meets the project needs. The criteria
used in this competitive process may include technical factors such as
past performance, waste management plan, technical expertise,
management experience, and disposal and transportation costs.
Federal regulations to ensure the health and safety of workers at
disposal sites are found either in worker protection standards
promulgated by the NRC, for NRC licensed facilities, or by the
Occupational Safety and Health Administration (OSHA) for hazardous
waste disposal facilities permitted under RCRA. Both the NRC and OSHA
standards provide comparable protection for workers responsible for the
disposal of radioactive materials.
The disposal of all FUSRAP material offsite is regulated depending
upon the materials and risks involved. The Corps reviews historical
radiological survey and sampling data and also conducts its own
characterization work to determine which hazardous materials are
present, and in what quantities and concentrations. The Corps then uses
this information to determine the regulatory status of the material
before disposing of the material in accordance with applicable laws and
regulations, as well as the acceptance criteria of the receiving
facilities. It is the responsibility of the operator of the disposal
site to obtain all necessary State permits and licenses to dispose of
the material. However, the Corps independently verifies that the
disposal facility is licensed or permitted to accept the materials for
disposal.
REGULATORY STATUS OF FUSRAP MATERIALS
While FUSRAP materials which are regulated under the Atomic Energy
Act (AEA) must be sent to NRC or Agreement State licensed disposal
sites, some low-activity FUSRAP materials may be disposed of at
Resource Conservation and Recovery Act (RCRA) permitted facilities
which allow disposal of such materials. NRC has stated that it does not
have jurisdiction over residual materials, i.e., waste or tailings from
the processing of ore for source material content, if two conditions
are met: (1) the residual materials were generated prior to 1978, when
the Uranium Mill Tailing Radiation Control Act (UMTRCA) was passed; and
(2) the residual materials resulted from a processing operation that
was not licensed in 1978 or thereafter. Included in such materials are
residual contamination from materials generated by uranium processing
facilities used during the Manhattan project. Those facilities were
operated and later decontaminated and decommissioned by the Atomic
Energy Commission and one of its successor agencies, the Department of
Energy. DOE facilities that discontinued uranium operations dedicated
to national security purposes were targeted for decontamination and
cleanup. Those cleanups were, and are, conducted in accordance with
FUSRAP. After 1978, active commercial processing of uranium from ore
for use in the commercial nuclear industry was subject to NRC licensing
as required by UMTRCA.
Congress passed UMTRCA in 1978 with the intent of expanding the
jurisdictional reach of the Atomic Energy Act to specifically described
uranium processing sites and materials that Congress found to represent
a public health threat. UMTRCA established a bifurcated approach to
addressing uranium mill tailings and milling waste. The Act is divided
into two titles: Title I created a remediation program for specific
sites designated in the Act where uranium ore processing had occurred
prior to 1978 primarily for the supply of the nuclear programs of the
United States; Title II established a regulatory program to address
tailings and waste from active, licensed milling operations. Title II
of UMTRCA gave the NRC jurisdiction over the tailings or waste produced
from active ore processing activities licensed at that time or in the
future. The legislative history of Title II of UMTRCA repeatedly
focuses on the application of the requirements to existing or new
licenses. The Congress was aware that this new statutory authority did
not apply to all radioactive materials of a similar nature yet declined
to expand the law to cover other types of sites, such as FUSRAP sites,
containing similar materials.
The historic ore processing residuals at FUSRAP sites constitute a
minute fraction of all the process wastes from mining, oil and gas
production, water treatment during mineral processing, and other
activities that contain the same naturally occurring radionuclides as
these FUSRAP wastes and that are disposed at sites not regulated under
the AEA. Most of these other materials are not disposed of at
facilities licensed by the NRC or an Agreement State. All FUSRAP
materials are disposed of at a facility licensed or permitted for
disposal of radioactive materials, much of it at NRC facilities, and a
smaller percentage at State-permitted disposal facilities with
specified limits for low-activity radioactive materials.
The State regulators for the RCRA facilities that are receiving the
low-activity FUSRAP wastes have specific provisions in their permits
allowing for the disposal of these wastes at the facilities. The
facilities are designed to manage these wastes, as well as RCRA
hazardous waste, and in some cases wastes regulated under other
statutes, such as the Federal Toxic Substances Control Act (TSCA),
which regulates disposal of PCBs, asbestos, and other toxic chemical
substances. These facilities all have designs and operating plans that
include liners, leachate collection systems, surface and groundwater
monitoring, worker protection standards, perimeter security, emergency
response plans, eventual caps upon unit closure, and long term
maintenance and land use restrictions. In short, they are engineered,
subject to State regulation, to safely dispose of materials such as
FUSRAP wastes. Permits for these facilities were issued only after
notice and public comment, including public participation on the permit
provisions dealing with radioactive materials. They are located in
geographic areas considered appropriate for disposal of hazardous
wastes, due in part to low precipitation and very deep subsurface
intervals to groundwater.
The Corps will continue to dispose of FUSRAP materials with higher
activity levels in NRC or agreement State licensed disposal sites,
since they are the only facilities which can accept higher activity
materials, whether the materials themselves are NRC licensed or not.
The Corps regards both NRC licensed and RCRA permitted disposal
facilities as providing protection to workers and the communities
around them from exposure to the hazardous substances, including
radionuclides, that they are permitted or licensed to manage for
disposal.
CORPS DISPOSAL POLICY
The Corps policy for the disposal of FUSRAP radioactively
contaminated materials requires that waste material first be
characterized via an evaluation of historical data and the use of
appropriate analytical testing. Based on the characterization
information, the Corps will identify potential disposal facilities for
that waste material. Only facilities licensed by the Nuclear Regulatory
Commission or an Agreement State, or facilities permitted by a Federal
or State regulator to accept radioactive materials in accordance with
applicable laws and regulations, will be considered candidates.
Prior to shipment of FUSRAP material to a disposal facility, the
Corps policy requires that both the facility and its regulator be
provided complete and accurate characterization information and that
each agrees to its disposal at that facility. Moreover, the policy
requires the written concurrence of the State and/or Federal regulatory
agency indicating that the proposed disposal is consistent with
applicable regulations and the license or permit.
LINDE SITE BUILDING 30 DEMOLITION AND DISPOSAL
The Linde Site is located on East Park Drive in the Town of
Tonawanda, New York. Between 1942 and 1946, Linde Air Products, a
subsidiary of Union Carbide Industrial Gases, was contracted by the
Manhattan Engineer District to extract uranium from uranium ore
received at the site. Linde Building 30 was one of five onsite
buildings in which uranium processing occurred. Uranium extraction
activities were discontinued in 1946 and the buildings were
decontaminated and decommissioned from 1949 through 1953 to standards
in effect at that time.
DOE designated the Linde Site as eligible for cleanup under FUSRAP
in 1980. DOE released an Engineering Evaluation/Cost Analysis (EE/CA)
pertaining to the demolition and disposal of Building 30 in November
1996 for public comment. The Corps issued an Action Memorandum and
Responsiveness Summary for the Linde Site Building 30 Demolition and
Disposal pursuant to this EE/CA in February 1998.
The Corps of Engineers awarded a work order to Radian
International, LLC of Bethesda, Maryland in May 1998 to demolish and
dispose of Building 30. Work included abandonment of utilities, removal
of waste and debris stored in the building, asbestos removal,
structural demolition, and offsite disposal of demolition debris. Prior
to the demolition, all the waste and debris stored in the building were
removed and disposed of at Envirocare in Clive, Utah, and the building
interior, including surfaces of structural members, was cleaned of
contaminated dust and loose materials. Those materials were also
removed from the building and disposed of at Envirocare.
Building 30 had twice previously been surveyed with instrumentation
to detect radiation. The first was during 1949-52, when the building
was decontaminated to the standards in effect at the time, and again,
by DOE, in the 1980-81 timeframe. Most recently, the Corps of Engineers
conducted its own comprehensive radiation survey using modern detection
equipment, followed by core sampling, prior to demolition and shipping.
The twenty-six samples taken by Corps contractor verified the location
and radiation levels of ``hot-spots'' identified by non-destructive
electronic surveying for radiation contaminants. These samples measured
in the picocurie level. The final sampling led to conservative
estimates of the radiation level averages for the building structure.
Demolition of Building 30 was completed in September, 1998. The
demolition debris was segregated and Radian competitively solicited
bids for transportation and disposal of the material.
As a result of this competitive process the radioactively
contaminated material was disposed as follows:
1,282.6 tons of soil, steel and miscellaneous waste,
including all the material stored in Building 30, was shipped to
Envirocare in Olive, Utah for disposal; and
2,164.42 tons of wood, masonry and interior asbestos were
shipped to Safety-Kleen in Buttonwillow, California.
Different disposal facilities were selected based on the
characterization, including level of activity, of the materials as
compared to the permit or license limitations of the facilities, as
well as debris size, transportation efficiency, cost, regulator
agreement to allow receipt of the material and other factors. Disposal
was completed February 10, 1999.
USE OF SAFETY-KLEEN FACILITY NEAR BUTTONWILLOW, CALIFORNIA
Safety-Kleen's permit from the State of California for operation of
the facility near Buttonwillow allows the disposal of radioactive
materials with an activity level less than 2,000 picocuries/gram that
are not NRC regulated source material. The permit contains no
restrictions limiting Safety-Kleen to accepting only naturally
occurring radioactive material (``NORM''). The Linde materials shipped
to Safety-Kleen comprised construction debris, mostly broken concrete
and wood, with residual amounts of radioactivity averaging 335
picocuries/gram, well below the limit in Safety-Kleen's permit.
Furthermore, the Linde materials are not NRC regulated source material,
but rather radioactive residuals from the processing of ores at a
facility that was not licensed by the NRC in 1978 when UMTRCA was
passed. Prior to shipment of the Linde construction debris to
California, as requested by the Corps, Safety-Kleen telephonically
informed both the California State Department of Health Services and
Department of Toxic Substances Control of its plans to dispose of
FUSRAP wastes prior to shipment from the Linde site. At that time,
neither Department indicated that they had any concerns regarding the
suitability of Safety-Kieen for the disposal of these wastes. Safety-
Kleen followed the telephonic notification with a written notice to
both Departments.
Subsequently, more than a month after the last shipment was
received, the California Department of Health Services (DHS) wrote
Safety-Kleen to express its concerns that Safety-Kleen was not properly
licensed to accept radioactive materials. However, based on a review of
the disposal by a team of radiation experts assembled by the DHS, the
California Environmental Protection Agency and Health and Human
Services Agency indicate, by letter dated August 25, 1999, to
California State Assemblyman, Dean Florez, that there is ``no reason to
expect long-term problems at this facility.'' The State agencies also
acknowledge that the facility's design of ``two three-foot thick
impermeable clay liners, three heavy gauge synthetic liners, and two
leachate collection systems . . . is more than is required by State and
Federal environmental laws.'' Because the materials involved are
primarily solid concrete and wood debris which were previously cleaned
and decontaminated, the Corps believes that potential for migration of
entrained radioactive residues through the liners and into the
environment is negligible. In addition, DTSC, the State agency
responsible for implementing the California Resource Conservation and
Recovery Act (RCRA) program, ``has not found any violations--of the
Resource Conservation and Recovery Act (RCRA) hazardous waste facility
permit, which DTSC issued--by the company in accepting these
shipments.''
The California Department of Health Services (DHS) has advised the
Corps that it is continuing to pursue its investigations of the FUSRAP
disposal at the Safety-Kleen facility. Although the State's RCRA agency
issued a permit to Safety Kleen, it appears that the California
Environmental Protection Agency may not have fully coordinated its
permitting action with the California Department of Health Services.
AUDIT BY THE ARMY AUDIT AGENCY
In response to questions about the disposal of Linde Building 30
materials, I have asked the Army Audit Agency (AAA) to investigate this
action. The tentative conclusions reached by MA are that the Corps was
in full compliance with all applicable laws and regulations and acted
responsibly in protecting overall human health, safety and the
environment. I will provide the final report to the Committee as soon
as it is completed.
______
Responses by Joseph W. Westphal to Questions From Senator Smith
Question 1. Please describe in more detail the process utilized by
the Corps and/or the disposal contractor to ensure that FUSRAP
materials do not exceed the disposal facility's acceptance criteria.
Response. The process that the U.S. Army Corps of Engineers uses to
ensure that FUSRAP materials do not exceed the disposal facility's
acceptance criteria begins with the initial radiological survey to
determine the existence of contamination at the site which exceeds
standards, and ends with the collection and analysis of samples
required by the disposal contractor. During this process, depending on
the size and complexity of the site, thousands of samples will be
analyzed. Together with an understanding of the site history, these
samples provide a complete and accurate picture of contamination there,
including radionuclides, activity levels, and nature of dispersion in
the contaminated medium. Additional sampling along with other site
characterization data is used to design and direct remedial activities
and to determine disposal options. The data will determine the
following: worker, public health, and environmental protections
required during remedial activities; and whether the material can be
cost effectively separated into more than one waste stream for more
efficient disposal; whether contamination is evenly distributed
throughout the medium which is contaminated. All sampling is done in
accordance with standard protocols to ensure a high level of confidence
in the characterization.
This process can be illustrated by the characterization of the
Linde Building 30, at the Linde Site, Tonawanda, New York. The initial
survey to determine the existence of contamination which exceeds
standards in Building 30 and the materials stored there was performed
in the late 1970's. It involved close to 700 samples, including, for
example, over 320 total gross alpha and total gross beta/gamma
measurements using approximately a 6-meter grid over the entire floor.
In 1981 a follow-up survey was done with fewer samples to confirm the
results of the first survey. Between 1988 and 1992 additional more
extensive surveys were conducted to support remedial design
engineering. These surveys involved close to 10,000 samples, including,
for example, over 3,600 total gross alpha and total gross beta/gamma
measurements on building floors, using approximately a 2-meter grid in
areas identified as having elevated activity or a 5 meter grid for
areas without elevated activity. Based on these surveys, the Corps
determined that the material could be cost effectively separated into
several waste streams for disposal at different kinds of facilities. In
1998 the Corps carried out a survey in accordance with the requirements
established by the disposal facility.
At each FUSRAP site, the Corps requires its contractor to develop a
specific plan outlining the process to be used for transportation and
disposal of material from the site. The Corps reviews this plan to
ensure compliance with all applicable Federal, state, and local
requirements. The plan specifies the radiological, chemical, and
physical/geotechnical testing that will be performed to adequately
characterize and profile each waste stream to be disposed. Distinct
waste streams may be segregated based on site history, process
knowledge, physical/chemical characteristics, or the results of
previous site investigations. The Corps-approved waste profile is
provided to potential disposal facilities for review. After a disposal
facility indicates that it may accept a specific waste stream,
additional samples may be collected at the site and provided to the
facility to allow the facility to conduct its own analytical testing.
After completion of the waste profile and any pre-shipment sampling,
both the Corps and the disposal facility are aware of the range of
concentrations to expect in a specific waste stream. The Corps ensures
that the selected disposal facility's regulator has approved any
material for disposal prior to shipping. The Environmental Protection
Agency is also notified to ensure compliance with the off-site rule in
40 CFR 300.440.
After receiving regulator approval, the material is prepared for
transportation. At FUSRAP sites, this generally involves excavation of
contaminated soil and placement into bulk containers such as railcars.
An additional waste sampling regime is initiated at this time to ensure
that the excavated material that is being placed in each container
complies with the waste profile and with applicable Department of
Transportation (DOT) requirements. The number and type of samples and/
or radiological surveys required is based on a number of factors,
including the homogeneity of the waste stream and the disposal
facility's requirements. The number and type of samples/surveys may
also depend on any potential regulatory requirements. After sampling is
accomplished, the appropriate shipping documents are prepared by the
contractor and submitted to the Corps for review. Material is not
transported off-site until an appropriately trained Corps
representative has approved of the shipment. The material is tracked
from the time it leaves the FUSRAP site until it reaches the disposal
facility. The disposal facility may take samples of the material prior
to receipt and acceptance of the material for disposal.
Question 2. Please clarify the difficulties involved in removing
the FUSRAP wastes from the Safety-Kleen facility near Buttonwillow,
California. Has the placement of this material created a more dangerous
condition? Could you explain?
Response. The placement of FUSRAP materials at the Safety-Kleen
facility has not created a more dangerous situation. Safety-Kleen is a
hazardous waste disposal facility permitted by the California under the
Resource Conservation and Recovery Act (RCRA), also permitted to accept
low-activity radioactive material not regulated under the Atomic Energy
Act. Safety-Kleen routinely accepts radioactive materials from the oil
industry which have the same radionuclides as FUSRAP material and
comparable levels of activity. Furthermore, after an extensive review,
the California Department of ToxicSubstances Control and Department of
Health Services both acknowledged in a letter to State Assemblyman Dean
Florez, dated August 25, 1999, that there are no known safety or health
risks to the community as a result of this disposal.
There are, however, several difficulties which would be involved in
removing the FUSRAP wastes from the Safety-Kleen facility, just as
there would be in attempting to remove any other identified waste
stream material from an approved engineered disposal site. Any action
to disturb a managed waste cell would require both the permission of
the owner, and the approval of the State regulator. These cells are
designed to receive hazardous waste for permanent disposal, and not to
be reopened after the materials are placed. The owner could be expected
to demand that the United States guarantee theintegrity of their waste
cell, including the liner, in case of any damage caused by the
excavation. The demand would extend not just to any immediate and
obvious damage, but also to any long-term damage that could cause
releases in the environment into the future.
The principal difficulty is that the FUSRAP material is now mixed
with hazardous wastes. The Safety-Kleen facility at Buttonwillow is
permitted by the State of California to receive a wide variety of
hazardous wastes regulated under the Resource Conservation and Recovery
Act (RCRA) and the California statutory equivalent. The materials from
Linde were disposed of legally at the Safety-Kleen facility over a
period of several months, and over eighteen months have passed since
those shipments were completed.
Safety-Kleen has managed and disposed of other materials in the
same area of the facility since the Linde shipments. Daily fill,
hazardous wastes, debris and other solid waste from various sources
have all been commingled with the Linde debris. The area could contain
low-activity radioactive material, such as oil field waste, as well as
PCBs, asbestos, metals, solvents, or a wide variety of other regulated
hazardous wastes. No material could be removed until it had been
characterized, an elaborate effort for hazardous waste from a variety
of different generators. This would be required both for worker
protection, and to determine the ultimate disposal facility for the
materials. The receiving facility would have to have a RCRA permit
covering all the listed and characteristic waste and constituents that
turn out to be present, and, in addition, to provide for the acceptance
of radioactive materials at the activity of whatever material is
removed.
Question 3. If RCRA Subtitle C facilities were no longer able to
accept FUSRAP material, how many competitive options would remain? What
would be the effect on cost for disposal of this material? Is there
historical evidence available to support the cost impact--(i.e. what
was the cost when RCRA facilities were not an option?)?
Response. There are currently only two facilities with NRC licenses
that are actively competing for FUSRAP disposal business. One is
Envirocare of Utah, an NRC-licensed disposal facility, and the second
is the International Uranium Corporation, an NRC-licensed uranium
milling facility which has accepted some FUSRAP material as alternative
feed stock under an amendment to its NRC license. Not all FUSRAP
materials are suitable for use as alternative feed stock. There are two
other facilities, one in New Mexico and one in Washington, licensed to
accept 11e(2) materials, including the pre-1978 ore processing
residuals which constitute a majority of FUSRAP materials. Both of
these facilities have indicated that they currently have no interest in
FUSRAP material. In addition to these four facilities which are
licensed to accept 11e(2) ore processing residuals, there are also two
facilities which operate under agreement state licenses and accept low-
level radioactive wastes (LLRW). Both would require state approval to
also accept pre-1978 ore processing residuals. Neither of these
facilities has shown much interest in competing for Corps FUSRAP
disposal contracts. There is also an agreement state licensed mill that
has shown some interest in FUSRAP materials as alternative feed stock.
The Corps believes that if RCRA Subtitle C facilities were no
longer able to accept FUSRAP material, its primary options would be
limited to Envirocare of Utah and International Uranium Corporation.
The latter, however, would only be available for material which could
be used as alternative feed stock. The Corps has realized a 30 percent
reduction in the cost it pays to Envirocare for the disposal of that
material through its competitive bidding process. Based on this
evidence, the Corps believes that disposal costs would substantially
increase if RCRA Subtitle C facilities could no longer compete for the
disposal of low-activity FUSRAP materials.
Question 4. What studies or reviews were completed by the Corps to
ensure safe disposal of FUSRAP at RCRA facilities?
Response. Because the Corps does not regulate disposal facilities,
it has not performed any independent study of the appropriateness of
disposal of radioactive materials at RCRA hazardous waste facilities.
The Corps looks to the regulators of RCRA-permitted and NRC-licensed
disposal facilities to set the parameters for the disposal of
radioactive materials at a particular facility, based upon its
location, design, and operational plans. However, from a worker
protection standpoint, the Corps has reviewed existing radiation
protection programs at targeted facilities. It has also reviewed
facility-prepared dose modeling results at RCRA facilities and verified
that the radiation dose to facility workers from their handling of low-
activity FUSRAP materials is estimated to be less than 1 millirem per
year.
The Corps also evaluates the qualifications of its contractors
prior to award of a contract. Among the factors that the Corps
evaluates are the contractor's performance record, adequacy of
equipment and facilities, operational controls, including safety
programs applicable to the work to be performed, and possession of the
proper licenses and/or permits to execute the contract. For disposal of
radioactive FUSRAP materials, the Corps will only use RCRA facilities,
that have permits that specifically address allowable radioactive
isotopes and/or allowable levels of radioactivity.
Following finalization in 1999 of the Corps multiple award disposal
contract, the Corps assembled a team of technical experts, mostly from
its Hazardous, Toxic and Radiological Waste Center of Expertise in
Omaha, to visit the facilities which received an award under this
contract. Reviews were conducted of facility permits and licenses,
compliance audits, safety and health programs, and inspection records.
These teams also met with regulatory agencies for each of the
facilities to ensure clarity regarding the nature of the FUSRAP
materials the Corps proposed to dispose of at these facilities under
the 1999 contract.
Based on the facility permits, site visits, and meetings with
regulators, the Corps believes that disposal of some low-activity
FUSRAP materials at RCRA Subtitle C facilities with permits authorizing
the disposal of radioactive material is protective of public health and
the environment.
Question 5. Please explain how FUSRAP wastes are sampled and levels
of activity are determined prior to shipment to disposal facilities.
Response. A FUSRAP site investigation and remediation involves
multiple surveys and analytical sampling events prior to material being
sent off-site for disposal. The analysis of historical information and
all collected survey data is used by the Corps to develop and refine a
conceptual site model that characterizes the nature and extent of the
radiological contamination at the site. Each survey is designed to
satisfy specific objectives and the analytical methods and data quality
are chosen to ensure the objectives, will be met. Initially, a scoping
survey is performed to determine the presence or absence of
contamination within an area of the site. Scoping surveys are generally
performed with hand-held radiation survey instruments and limited
analytical samples are collected. When an area is found to be
contaminated, additional characterization surveys are performed to
determine the nature and extent of the radionuclides involved.
Characterization surveys may involve the collection of a significant
number of samples from various media within the contaminated area. For
those areas requiring cleanup, surveys are performed to guide the
remedial activities. Remediation support surveys are used by the Corps
to ensure that the cleanup is complete. Data from these in-situ
characterization and remediation surveys is often used to develop the
waste profile that is provided to potential disposal facilities. Once
the material has been removed, an additional waste sampling regime is
initiated to ensure consistency with the waste profile and compliance
with applicable Department of Transportation (DOT) requirements.
Because each subsequent survey is not entirely independent of previous
surveys, the characterization data may be used to supplement the ex-
situ sampling. The number and type of samples and/or radiological
surveys required after the material is excavated is based on a number
of factors, including the homogeneity of the waste stream and the
disposal facility's requirements. The number and type of samples/
surveys may also depend on any potential regulatory requirements. For
example, the range of specific activity in many FUSRAP waste streams
will not approach the 2000 pCi/g DOT definition of Class 7 radioactive
material. However, for those wastes whose range includes this level,
additional sampling may be required. After sampling is accomplished,
the appropriate shipping documents are prepared by the contractor and
submitted to the Corps for review prior to the shipment being released
from the site.
Responses by Joseph W. Westphal to Questions From Senator Boxer
Question 1. In your oral testimony, you stated that ``we believe
that Resource Conservation and Recovery Act, RCRA, Subtitle C,
Hazardous Waste Disposal facilities, do provide for the safe and
protective disposal of some FUSRAP material.'' As you know, FUSRAP
material is radioactive and RCRA does not provide for the regulation of
radioactive materials. Please provide the environmental and public
health studies that form the foundation for the Corps' view that RCRA
facilities are protective.
Response. Although radionuclides are not a listed or characteristic
hazardous waste under RCRA, states can, and most do, regulate the
disposal of radioactive materials not regulated under the Atomic Energy
Act. This regulation is often done in conjunction with the state RCRA
program. Some states have chosen to prohibit or greatly restrict the
disposal of radioactive materials at RCRA facilities. Other states,
however, have examined the location, design, and operations of certain
RCRA facilities and have authorized those facilities to accept
radioactive materials up to a designated activity limit.
The Corps does not regulate these waste disposal facilities. The
Corps looks to the regulators of RCRA-permitted disposal facilities, as
well as NRC-licensed disposal facilities, to set the parameters of
disposal of radioactive materials. The regulators of each facility are
in the best position to know whether disposal of low-activity
radioactive waste is appropriate at a particular facility, and whether
such disposal is acceptable to the local community.
The Corps does, however, evaluate the qualifications of its
contractors prior to award of a contract. The Federal Acquisition
Regulations (PAR) require that the government make an affirmative
determination that a contractor is responsible prior to award of a
contract. Among the factors that the Corps reviews in order to
determine whether a contractor is qualified to perform a contract are
the contractor's performance record, financial resources (including
bonds and other resources that secure financial obligations), adequacy
of equipment and facilities, operational controls (including safety
programs applicable to the work to be performed), and possession of the
proper licenses and/or permits to execute the contract.
The Corps' decision to utilize certain RCRA permitted facilities as
a disposal option for some low-activity FUSRAP materials included an
evaluation of RCRA worker radiation safety. The Corps, for its own
information, reviewed existing radiation protection programs at
targeted facilities. The Corps also reviewed facility prepared dose
modeling results at RCRA facilities and verified that the radiation
dose to facility workers from their handling of low-activity FUSRAP
materials is estimated to be less than 1 millirem per year.
For disposal of radioactive FUSRAP materials, the Corps is only
using RCRA facilities, that have permits that specifically address
allowable radioactive isotopes and/or allowable levels of
radioactivity.
Question 2a. In your oral testimony, you state that FUSRAP sites
were first cleaned up according to 1946-era standards. You then imply
that DOE cleaned up FUSRAP sites to remove the waste with the high
levels of contamination. You then state that '4we continue now to
continue to clean up what is remaining there and what is remaining, I
assume, is the 11e(2) byproduct. Some of that material would be
classified under that label.''
Please reconcile this statement with the statement earlier in your
testimony that only 20 percent of the FUSRAP waste the Corps has
disposed of under the program has been sent to RCRA facilities, with
the remaining 80 percent going to NRC licensed facilities.
Response. A principal reason why only 20 percent of FUSRAP
materials are going to RCRA Subtitle C disposal facilities is the low-
activity level acceptance criteria of the RCRA facilities. The Safety-
Kleen facility near Buttonwillow, California, is permitted to accept
material with an average activity level less than 2,000 picoCuries per
gram (pCi/g). EnviroSafe of Idaho and Waste Control Specialists of
Texas are permitted to accept some materials with an average activity
level up to 355 pCi/g. However, there are multiple factors involved in
determining the best disposal option for FUSRAP materials in addition
to activity levels, these include, quantities, disposal permits and
licenses, regulatory acceptance, transportation options, contracting
options, and site and loading logistics.
Question 2b. Please provide documentation for your statement that
only 20 percent of the waste the Corps has disposed of under FUSRAP has
been sent to RCRA facilities.
Response. The table below shows that only 61,000 cubic yards out of
a total of 347,000 cubic yards and 2,800 tons out of a total of 4,500
tons were disposed of at RCRA Subtitle C facilities. The RCRA hazardous
waste disposal facilities on the table below are Safety-Kleen,
EnviroSafe of Idaho, and WCS (Waste Control Specialists of Texas).
----------------------------------------------------------------------------------------------------------------
Disposed Disposed
Site Material CY Tons Disposal Facility Location
----------------------------------------------------------------------------------------------------------------
Ashland 1,..................... Soil.............. 78,249 International Utah
Tonawanda, NY.................. Uranium.
Corporation.......
Ashland 2,..................... Soil.............. 45,500 International Utah
Tonawanda, NY.................. Uranium.
Corporation.......
Bliss & Laughlin,.............. Metal Shavings & 60 Envirocare........ Utah
Buffalo, NY.................... Miscellaneous
Debris.
Linde,......................... Soil.............. 3,700 Envirocare........ Utah
Tonawanda, NY..................
Soil, steel, metal 1,283 Envirocare........ Utah
debris &.
miscellaneaus
decon wastes.
Bldg. 30 wood, 2,165 Safety Kleen...... California
masonry, &.
interior asbestos.
Non-rad. scrap 111 Lewis Levin....... New York
steel.
Bldg. 30 North Bay 25 Integrated Waste.. New York
non-rad..
bldg. debris......
Non-friable, non- 17 Lakeview Land fill Pennsylvania
rad..
Asbestos..........
Painesville, OH................ Soil.............. 1,326 Envirocare........ Utah
St. Louis, MO.................. Soil.............. 71,000 Envirocare........ Utah
sites..........................
Soil.............. 381 EnviroSafe........ Idaho
Colonie, NY.................... Soil (Mixed Waste) 952 Envirocare........ Utah
Mixed Waste drums. 27EA Envirocare........ Utah
(55 gal),
stabilized.
waste/debris......
LLRW--125 tons 125 GTS Duratek....... Tennessee
metal.
debris............
LLRW--Dry 27 GTS Duratek....... Tennessee
activated waste.
Unimporiant Source 3,000 EnviroSafe........ Idaho
Material Quantity.
Non-contaminated 75 Ft Edwards........
Wood.
Chip..............
Clean Scrap Metal 40 New York
for.
Recycle at local
dealer.
W.R Grace,..................... Soil 150 WCS............... Texas
Baltimore, MD.................. (Containerized
rubble).
DuPont......................... Structural Steel.. 536 WCS............... Texas
Deepwater Plant,...............
NJ.............................
Drums Mixed Waste. 9 PermaFix.......... Florida
(55 Gal)..........
Bagged PPE........ 7 WCS............... Texas
Maywood, NJ.................... Soil.............. 45,355 Envirocare........ Utah
Wayne, NJ...................... Soil.............. 40,000 Envirocare........ Utah
Middlesex, NJ.................. Soil.............. 57,600 EnviroSafe........ Idaho
Structural Steel.. 137 EnviroSafe........ Idaho
--------------------------------------------------------------------------------
Program Total.............. 347,289 4,541
----------------------------------------------------------------------------------------------------------------
Question 2c. Please provide documentation that DOE performed work
at each of the remaining FUSRAP sites to remove high levels of
radioactive materials.
Response. The table below contains general information about
earlier cleanups of FUSRAP sites, prior to the creation FUSRAP, which
was provided to the Corps by the DOE. Typically earlier cleanups were
designed to meet standards in effect at the time, in the 1940's, 1950's
or 1960's when Manhattan Engineer District (MED) and early Atomic
Energy Commission (AEC) work was completed at these sites. The table
also shows which sites became contaminated because they were utilized
for storage or disposal of FUSRAP materials during this earlier
cleanup. The Corps does not have detailed information regarding earlier
cleanups, cleanup criteria used at that time of the location of all
previous on- or offsite disposal areas. The Corps is doing document
searches in conjunction with potentially responsible party (PRP)
investigations at several of these sites. In all likelihood these
investigations will provide the Corps with more documentation with
respect to the earlier cleanups.
------------------------------------------------------------------------
Name of Site Previous Cleanup
------------------------------------------------------------------------
Madison, IL............................... Mallinckrodt Chemical
Company was responsible for
removing remaining uranium
and cleaning up facilities
following uranium metal
extrusion operations and
uranium rod straightening
performed for Mallinckrodt
by the Dow Chemical Company
at Dow's Madison facility
during the late 1950's and
early 1960's
St. Louis Downtown Site, St. Louis, MO.... Residuals from processing
uranium ores from 1942-1957
were disposed of at the St.
Louis Airport. Mallinckrodt
Chemical Company
decontaminated Plants I and
2 from 1948 through 1950 to
meet the Atomic Energy
Commission standards in
effect at the time and AEC
released these plants for
use without radiological
restrictions in 1951. AEC
managed decontamination of
Plants 10, 7, and 6E to
meet AEC criteria in effect
at the time and returned
the plants to Mallinckrodt
in 1962 for use without
radiological restrictions
St. Louis Airport, St. Louis, MO.......... Disposal site for processing
residuals from Mallinckrodt
Chemical Co., 1946
St. Louis Airport, Vicinity Properties, Vicinity properties were
St. Louis, MO. contaminated during
shipment of Mallinckrodt
materials to the Airport
site or migrated from the
Airport site to adjoining
areas
Latty Avenue, St. Louis, MO............... Materials stored at the
Airport site were sold for
extraction of any remaining
radioactive materials and
moved to Latty site in 1966-
7. Contamination results
from storage of FUSRAP
materials at site while
awaiting processing
Bliss and Laughlin, Buffalo, NY........... Following completion of work
performed for the AEC in
1952, the owner conducted a
radiological survey and
replaced some equipment
because it was contaminated
Linde Air Products, Tonawanda, NY......... Residuals from processing
uranium ores during the
early to mid-1940's were
disposed of at the Ashland
1, Tonawanda, NY site
Ashland 1, Tonawanda, NY.................. Disposal site for processing
residuals from Linde site,
1944-1946
Ashland 2, Tonawanda, NY.................. Ashland 1 materials were
moved by the site owner to
Ashland 2, 1974-1982
Seaway Industrial Park, Tonawanda, NY..... Some Ashland 1 materials
were also placed in the
Seaway landfill, 1974-1982
Niagara Falls Storage Site, NY............ DOE created on-site waste
containment structure
Luckey, OH................................ In 1959, under contract to
the AEC, the processing
facility was decontaminated
and processing wastes were
consolidated in a dike-
enclosed landfill on site
Painesville, OH........................... No evidence of any previous
cleanup
Colonie, NY............................... National Lead Industry
records show that
radioactive materials were
disposed of or stored at a
designated area on site
under an AEC license in
1961
CE, Windsor, CT........................... Site records show
remediation in Building 3
and some outdoor areas
during and after the AEC
contract work, directed by
either AEC or the Navy to
comply with cleanup
standards of the day. Soil
from some outdoor areas was
removed. Building 3 was
cleaned in 1959/1960, 1962
and then in 1963/64
Shpack Landfill, Norton, MA............... FUSRAP material disposed of
in this domestic and
industrial landfill
Maywood, NJ............................... Stepan Company cleaned up
the site from 1961-1968 of
residual wastes from
thorium extraction
operations carried out by
the Maywood Chemical
Corporation until 1958.
Material from cleanup
operations is stored at NRC
licensed pits
Wayne, NJ................................. W.R Grace partially
decontaminated the site in
1974. In 1975, storage
license for radioactive
materials was terminated by
the NRC following site
decommissioning and the
site was released without
radiological restriction
Middlesex, NJ............................. Structures on the site were
decontaminated in 1967 and
the site was certified by
the AEC for unrestricted
use, in accordance with
guidelines in effect at the
time, and returned to the
General Services
Administration
Dupont Chamber Works, Deepwater, NJ....... In 1948-1949 the AEC
performed radiological
surveys and decontamination
of buildings at DuPont in
accordance with guidelines
in effect at the time. In
1949 the AEC released the
buildings back to DuPont.
In 1996, DOE completed
decontamination of interior
surfaces of Building 845 in
preparation for demolition
of the building by DuPont.
In 1997 DuPont completed
some chemical remediation
of a portion of the central
drainage ditch under RCRA.
ORNL subsequently verified
to DOE that DuPont's RCRA
remediation had also
successfully remediated
this area for radiological
contamination
W.R Grace, Baltimore, MD.................. In 1993, W.R. Grace
decontaminated one of the
buildings contaminated as a
result of the early AEC
activities at the site.
There has been no other
remediation of
contamination resulting
from early AEC activities.
That work was completed in
1958
------------------------------------------------------------------------
Question 2d. Please provide documentation underpinning your
assumption that the materials the Corps is only disposing of 11e(2)
byproduct material in the FUSRAP.
Response. The Corps is not disposing only of 11e(2) byproduct
material in FUSRAP. In addition to the pre-1978 ore processing
residuals, which constitute the largest single category of FUSRAP
materials, the Corps has also identified lesser percentages of Low-
Level Radioactive Waste (LLRW), Mixed Wastes, Naturally Occurring
Radioactive Material (NORM), Hazardous Waste, and Special Nuclear
Materials. Since not all FUSRAP sites have been fully characterized it
is possible that additional categories will be identified.
Question 3. In discussing the Buttonwillow case, you stated in your
oral testimony that the radioactive waste transported to California
``met very stringent DOT regulations for the transporting of those
materials.'' What do those regulations require?
Response. Department of Transportation (DOT) hazardous materials
regulations in 49 CFR Parts 172 and 173 specify marking, labeling,
placarding, packaging, and shipping paper requirements for FUSRAP
wastes meeting a specific DOT hazard class. They also specify training
and certification requirements for employees dealing with hazardous
materials. The hazard class most likely to apply to FUSRAP wastes is
either Hazard Class 7 or Hazard Class 9. Hazard Class 7, Radioactive
Material, applies to shipments with a specific activity greater than
0.002 microcuries (2000 picoCuries) per gram. Material covered by
Hazard Class 7 requires special packaging, labeling, marking, and
placarding. Marking, package labeling, and placarding requirements are
found in 49 CFR Part 172. Packaging and transport requirements,
including exceptions, for certain types of radioactive materials are
found in 49 CFR Part 173. Hazard Class 9, Miscellaneous Hazardous
Material, applies to shipments which include a hazardous substance
under CERCLA or a hazardous waste under RCRA. The Corps requires that
its contractors comply with the applicable provisions of 49 CFR Parts
172 and 173. In addition, the Corps tracks all its shipments through a
change of custody form.
Question 4a. In discussing the Buttonwillow case, case you stated
in your oral testimony that so long as the radioactive waste shipped to
Safety-Kleen averaged 2,000 picocuries/gram or less it met the
requirements of the permit. (``But again, we are talking about
averages, so they average 2,000 with one peaking above 2,000. The
Buttonwillow facility is permitted to accept an average of 2,000. So it
can accept some material that may have peaked higher, but on the
average it can't be higher than 2,000.'')
Response. As you know, the validity of that permit term has been
contested by the California Department of Health Services. That
notwithstanding, nothing in the permit specifically allows the use of
averaging to meet this permit condition. The use of averaging,
depending upon how it is done, could render even the 2,000 picocurie/
gram limit meaningless since it would enable the Corps to ship
radioactive materials significantly higher than 2,000 picocuries by
diluting the radioactive content with non-radioactive material.
On this issue, Senator Bennett posed a question to Dr. Paperiello
that Dr. Paperiello could not Senator Bennett asked what would happen
if a shipment received at the facility was as hot as 4,700 picocuries
but the average fell below 2,000 picocuries. In particular, Senator
Bennett asked whether the 4,700 picocurie material would have to be
separated from the remaining material or whether it could, in effect,
be diluted by less radioactive material and thereby averaged to meet
the permit condition. Dr. Paperiello ``[I]n terms of how you deal with
heterogeneous distribution, which is quite common, it would depend and
awful lot on how the receiving facility was permitted . . . I just
don't know when a facility is permitted to receive material up to 2,000
picocuries per gram . . . I don't know how they deal with
heterogeneity.''
Question 4b. Please provide any written documents indicating
whether and how averaging was applied by the Corps in this case (e.g.,
did the Corps take the average per container, per rail car, per entire
shipment?).
Response. The averaging was applied to the entire shipment of
contaminated wood and masonry debris from the Linde, Building 30
demolition, to the Safety-Kleen disposal facility near Buttonwillow,
California. The averaging was based on the 26 samples that were
obtained in accordance with requirements established by Safety-Kleen.
Prior to this sampling, the interior of Building 30 was decontaminated
by vacuuming and pressure washing to reduce the amount of contaminated
dust and other loose materials. Wood and masonry surfaces were then
scanned for radioactivity. Based on scan results, the following samples
were collected: three wood and three masonry samples were collected
from areas exhibiting the highest radiation levels; three wood and
three masonry samples were collected from areas exhibiting low
radiation levels; and seven wood and seven masonry samples were
collected from random locations. The average total activity for all 26
of these samples was determined to be 335 pCi/g, well below the 2000
pCi/g acceptance criteria of the Buttonwillow facility. This average
was consistent with the more than 10 thousand samples taken during the
site investigation phases of the remediation process.
Question 4c. Please provide any written authorizations or legal
authority from the State of California which permits such averaging.
Response. The authority for averaging is implicit in Safety-Kleen's
permit from the State of California, which defines permitted levels of
activity in terms of the U.S. Department of Transportation (DOT)
regulations, specifically 49 CFR 173.403(y). ``The Permitee shall not
accept the following wastes and materials at the Facility: a.
Radioactive materials which either require special placarding because
they exceed 2,000 picocuries/gram of activity as reference in 49 CFR
173.403(y) or are defined as ``NRC regulated source materials.'' DOT
regulations provide for averaging.
Question 4d. Your staff person Julie Peterson referred to a
``general rule of thumb'' being the ``three times rule'' in her
response to the Committee on this issue. What is the authority for that
``rule,'' how does that rule apply (e.g., per shipment, per drum, etc),
how is it enforced on a facility-by-facility basis, and what is the
scientific underpinning of that rule?
Response. The three times multiplier has been used since 1974 when
the NRC's Regulatory Guide 1.86, Termination of Operating Licenses for
Nuclear Reactors, was published. It has provided guidance for
acceptable surface contamination levels that have been used during
reactor and other decommissioning activities. Its maximum acceptable
values listed in the document are a factor of three times the average
acceptable levels. The Department of Energy (DOE) (DOE Order 5400.5,
Radiation Protection of the Public and the Environment) and the
Department of Army (Department of Army Army Regulation 11-9, The Army
Radiation Safety Program)--have also used these average and maximum
criteria.
The more specific basis for use of the three times rule as an upper
limit in conjunction with averaging is guidance issued by the U.S.
Department of Transportation (DOT) together with the Nuclear Regulatory
Commission. In accordance with NUREG-1608/RAMREG-003, which references
International Atomic Energy Agency (IAEA) advisory material on
qualitatively and quantitatively defining the non-homogeneity in a
package containing low-specific activity (LSA) materials, a material
may be considered essentially uniformly distributed when the calculated
or measured specific activity difference between equal volumes does not
vary by more than a factor of three. This guidance was intended to
clarify the definition of ``radioactive material'' provided by DOT for
its regulatory purposes. In accordance with DOT regulation 49 CFR 173,
a material is radioactive if it has a specific activity greater than
2,000 pCi/g. The specific activity of a material in which the
radionuclide is essentially uniformly distributed is the activity per
unit mass of the material.
The concept of essentially uniformly distributed material within
each shipping container has been incorporated into the FUSRAP waste
acceptance criteria for EnviroSafe Services of Idaho, Inc.
Additionally, the use of upper action levels that are three times the
allowable average soil concentration have been incorporated in
EnviroSafe's permit. At the Waste Control Specialists, LLP (WCS)
facility in Texas, based on meetings between the Corps and state
regulators, averaging over the volume of the container is generally
acceptable for soil contamination. Though it is not specified in the
WCS permit, State of Texas regulators have indicated that they might
even allow elevated areas up to 10 times the average activity in a
container.
Question 4e. Ms. Peterson also stated that ``It is [the use of
averaging] negotiated with the facility's regulatory agency prior to
shipment . . . .'' Please provide documents indicating how this issue
was negotiated with the State of California and Safety-Kleen prior to
the shipment of the Buttonwillow waste.
Response. Although the Corps did not negotiate with the State of
California regarding the use of averaging prior to the shipment of
Building 30 materials to Safety-Kleen, the Corps has since then
established a practice of meeting with state regulators of disposal
facilities which have contract for the disposal of FUSRAP materials. A
team of technical experts from the Corps Hazardous, Toxic and
Radiological Waste Center of Expertise in Omaha was assembled to visit
the facilities which received an award under its 1999 multiple site
disposal contract. The team discussed averaging and the three times
rule with the facilities and state regulators to establish the position
of the regulators on these issues which may not be expressly addressed
in permits or regulations.
The Corps does not know whether state regulators were aware that
Safety-Kleen was utilizing averaging in evaluating whether material met
the facilities waste acceptance criteria. However, pursuant to their
permit, Safety-Kleen was and is required to implement the Waste
Analysis Plan (WAP) that was approved by the State of California. That
plan contains the facility waste acceptance criteria and a description
of the waste analyses that the permittee is required to obtain before
waste acceptance. No additional surveys or samples were requested by
either the California Department of Toxic Substances Control and the
Department of Health Services, the averaging method to be employed was
not questioned, and no state-imposed averaging protocols were
specified. Safety-Kleen then determined that they had complied with
their approved WAP and could accept the Building 30 material.
Question 5. The Corps is required to conduct FUSRAP response
actions under CERCLA in accordance with the regulations developed by
EPA (the NCP). However, at the Linde FUSRAP site, it appears that the
Corps was in disagreement with EPA over what would constitute
appropriate cleanup levels for the radioactive contaminants (radium,
thorium, uranium) at the site. Since EPA has issued guidance on
interpreting the NCP (Use of Soil Cleanup Criteria in Subpart B of 40
CFR 192 as Remediation Goals for CERCLA Sites (February 12, 1998) which
specifies a cleanup level of 5 pico curies per gram for the sum of
radium or thorium, what is the basis for the Corps selecting higher
cleanup levels for these radionuclides? Also, EPA has recently issued
guidance that addresses uranium cleanup levels (Remediation Goals for
Radioactively Contaminated CERCLA Sites Using the Benchmark Dose
Cleanup Criteria in 10 CFR Part 40 Appendix A, I, Criterion 6(6) (April
11, 2000). How did the Corps select the cleanup levels it used at Linde
for uranium, and in the future does the Corps intend to use EPA's
previously mentioned guidance documents? If the Corps does not use
EPA's guidance documents for establishing cleanup levels, how does the
Corps intend on attaining consistency across the FUSRAP program on how
cleanup levels are decided?
Response. The Corps used Subpart B of 40 CFR Part 192, which sets
standards for residual concentrations of radium-226 in soil at certain
former uranium mill sites as a basis for establishing requirements for
the Linde site. It states that radium concentrations at those former
mill sites shall not exceed background by more than 5 picoCuries per
gram (pCi/g) in the top 15 centimeters of soil and 15 pCi/g in any 15
centimeter layer below the top layer, averaged over an area of 100
square meters. Subpart B of 40 CFR Part 192 does not specifically
address radionuclides other than radium.
In June of 1999, NRC amended its regulations at 10 CFR Part 40,
Appendix A to address radionuclides other than radium at certain
uranium mill sites. 10 CFR Part 40, Appendix A, Criterion 6(6) requires
that residual concentrations of these other radionuclides will not
result in a total effective dose equivalent (TEDE) that exceeds a
benchmark dose established based on cleanup above background to the
radium standards of 5 pCi/g in the top 15 centimeters and 5 pCi/g in
subsequent 15 centimeter layers below the top layer and must be as low
as reasonably achievable (ALARA). This benchmark dose is used to
establish allowable soil concentration levels for radionuclides other
than radium.
The Corps used the benchmark dose approach of 10 CFR 40, Appendix A
to determine the concentration limits for thorium and uranium at the
Linde site. The Corps calculated that the comparable concentration
limits for thorium-230 were 14 pCi/g in the surface and 44 pCi/g in the
subsurface. Thorium-230 is the significant contaminant at the Linde
site. The concentration limits calculated for total uranium were 554
pCi/g in the surface and 3,021 pCi/g in the subsurface. However, the
Corps did not make these limits the cleanup standards for uranium in
the cleanup plan it approved for Linde because prior to issuance of the
new NRC guidance, in the proposed plan provided for public comment,
Corps had proposed a 600 pCi/g maximum for natural uranium. In order to
be consistent with the plan released for public review, the Corps
retained the 600 pCi/g maximum for natural uranium as the cleanup
standard for natural uranium. All soils with total uranium
concentrations exceeding 600 pCi/g will be excavated and disposed of
off site. However, the Corps estimates, based on the quantities and
distribution of uranium in the soil and in comparison to quantities and
distribution of thorium in the soil at the Linde site, that after
remedial action is completed at Linde, the average residual
concentration of uranium remaining on site will be 60.8 pCi/g.
EPA's Office of Solid Waste and Emergency Response has issued
guidance documents at various times during the development of the
aforementioned regulations. These documents provide EPA regional staff
with guidance on implementation of the NCP in order to achieve some
measure of consistency nationwide. The Corps has met with EPA staff to
discuss 40 CFR Part 192 and EPA's related guidance and plans to have
further discussions with EPA on the applicability of its guidance to
the FUSRAP sites. Likewise, the Corps has met with NRC staff regarding
10 CFR Part 40, Appendix A, Criterion 6(6). The Corps intends to
maintain consistency with regard to cleanup criteria at FUSRAP sites by
consistently cleaning up in accordance with applicable or relevant and
appropriate requirements.
Question 6. While the Corps does not have to receive EPA approval
of the remedies selected at non-NPL FUSRAP sites, the Corps does have
to follow the NCP. In particular, EPA's off-site rule, which is part of
the NCP, implements the CERCLA requirement that waste removed from a
site under the Superfund must be sent to a facility that is in
compliance with Federal and State disposal requirements.
To assure that wastes removed under the NCP are disposed of in a
way that protects human health and the environment, the party
conducting the cleanup should request a determination of the off-site
rule from EPA to assure that the disposal facility meets the
requirements of that rule.
Did the Corps request a determination of the off-site rule from EPA
prior to shipping the FUSRAP wastes to Buttonwillow?
Response. Because the Corps prime contractor had audited the
Safety-Kleen facility near Buttonwillow, California, and determined
that it was not in violation of its permit, the Corps did not request
that the Environmental Protection Agency (EPA) regional off-site
coordinator determine whether the Safety-Kleen facility was acceptable
under the Off-Site Rule. Following the disposal of FUSRAP materials at
the Buttonwillow facility, the Corps has discussed the off-site rule
with EPA staff. Current Corps disposal policy requires compliance with
the off-site rule before FUSRAP materials are shipped to a disposal
facility.
The value of EPA's off-site rule is to prevent shipments of waste
to facilities that have leaks, releases, or relevant permit violations.
However, the EPA off-site coordinator does not evaluate whether a
facility is authorized to accept a particular type of waste. Only the
disposal facility and its specific regulatory agency or agencies can
determine whether the facility is authorized to accept FUSRAP
materials.
______
Responses by Joseph W. Westphal to Question From Senators Baucus
and Graham
Question. What guidance has the Army Corps provided to its
contractors, who are disposing of FUSRAP material, for the purposes of
testing, monitoring, transportation, and complying with Federal, State
and local disposal regulations? Please provide the relevant guidance
documents.
Response. EC 200-1-3 Off-Site Disposal of Materials from the
Formerly Utilized Sites Remedial Action Program is the overarching
guidance provided to contractors by the Corps related to off-site
disposal of radioactively contaminated FUSRAP materials. Its purpose is
to help assure: (1) compliance with all applicable laws and
regulations, (2) disposal is protective of human health and the
environment, and (3) protects the public interest from both the health
and fiscal perspectives.
Each solicitation for FUSRAP work, including on-site remediation,
transportation, and disposal provides contract requirements with which
contractors must comply. One such requirement is the Permits and
Responsibilities Clause, PAR 52.236-7, which states that ``[t]he
Contractor shall be responsible for obtaining any necessary licenses
and permits, and for complying with any Federal, State, and municipal
laws, codes, and regulations applicable to the performance of the
work.''
A listing of statutes/regulations and guidance with which the
contractor must comply, as applicable, follows below. In addition, at
each of our sites the contractor is required to develop a site/waste
specific Transportation and Disposal Plan which incorporates guidance
documents and other Corps requirements and how to comply with that
guidance, including how material will be handled, shipped, and disposed
of. The U.S. Army Corps of Engineers (USACE) reviews these plans to
assure compliance with the contract requirements, applicable federal,
state, and local regulations, and to assure the technical adequacy of
the plans. Federal and state regulators may additionally review this
plan.
USACE health physicists and other technical staff oversee and
coordinate with the contractors on implementation of the Transportation
and Disposal Plan. As a part of this coordination, the contractor and
USACE determine Department of Transportation, Environmental Protection
Agency and Nuclear Regulatory Commission requirements (see listing
below for potentially applicable regulations) for transport of the
material to the disposal facility. The USACE, the contractor, and the
disposal facility determine sampling protocols per container based upon
the disposal facilities Waste Acceptance Criteria and other factors,
such as DOT hazardous material transportation hazard class definitions.
USACE GUIDANCE
Offsite Disposal of Materials from FUSRAP, USACE, EC-200-
1-3.
Radiation Protection Regulation and Manual, USACE, ER/EM
385-1-80.
Safety and Health Requirements Manual, USACE, EM 385-1-1.
other guidance
Guidelines for Decontamination of Facilities and Equipment
Prior to Release for Unrestricted Use, NRC, 1976.
Standard Operating Safety Guidelines, U.S. Environmental
Protection Agency (EPA), Environmental Response Branch, Hazardous
Response Support Division, Office of Emergency and Remedial Response.
Occupational Safety and Health Guidance Manual for
Hazardous Waste Site Activities, U.S. Department of Health and Human
Services, Public Health Service, Centers for Disease Control, National
Institute for Occupational Safety and Health.
Radiation Protection of the Public and the Environment,
Department of Energy, DOE Order 5400.5, February 1990.
Radioactive Waste Management, Department of Energy, DOE
Order 435.1, 1999.
Disposal sites also have specific data/information needs
based on their permits/license and we insure that these data/
information are collected.
STATUTES AND REGULATIONS
Comprehensive Environmental Response, Compensation, and
Liability Act, as amended (CERCLA), 42 USC 9601-9675 (in particular 42
USC 9621(d)(3)).
Atomic Energy Act (AEA) of 1954, as amended, 42 U.S.C.
2011-2296.
Hazardous Materials Regulations, 49 CFR Parts 171 through
179, as applicable, U.S. Department of Transportation.
Standards for Protection Against Radiation, 10 CFR Part
20, Nuclear Regulatory Commission (NRC).
Safety and Health Standard, 29 CFR Part 1910 (General
Industry), U.S. Department of Labor, Occupational Safety and Health
Administration (OSHA).
L29 CFR 1910.120, Hazardous Waste Operations and
Emergency Response, U. S. Department of Labor, OSHA.
L29 CFR 1910.1096 Ionizing Radiation, U.S.
Department of Labor, OSHA.
Safety and Health Regulations for Construction, 29 CFR
Part 1926, U.S. Department of Labor, OSHA.
Health and Environmental Protection Standards for Uranium
and Thorium Mill Tailings, 40 CFR Part 192, U.S. Environmental
Protection Agency (EPA).
Standards for Owners and Operators of Hazardous Waste
Treatment, Storage and Disposal Facilities, 40 CFR Part 264, EPA.
Interim Status Standards for Owners and Operators of
Hazardous Waste Treatment, Storage and Disposal Facilities, 40 CFR Part
265, EPA.
Land Disposal Restrictions, 40 CFR Part 268, EPA.
Identification and Listing of Hazardous Waste, 40 CFR Part
261, EPA.
National Emission Standards for Hazardous Air Pollutants,
40 CFR Part 61, EPA.
National Primary Drinking Water Regulations, Maximum
Contaminant Levels, 40 CFR 141.11-141.16,EPA.
National Oil and Hazardous Substances Pollution
Contingency Plan, 40 CFR 300, EPA
Accident Prevention, Federal Acquisition Regulations
Clause 52.236-13.
Applicable requirements of the states in which the
radiological contaminated soil is being disposed.
______
Response by Joseph Westphal to Question From Senator Moynihan
Question. I understand the Army Corps has calculated cleanup levels
at the Linde site for uranium surface contamination at 554 pico curies
per gram and subsurface contamination at 3,021 pico curies per gram--
with an expectation that average post-cleanup uranium levels will be
60.8 pCi/g. What assurances has the Corps made to ensure that this
expected cleanup standard will be achieved and will be protective of
public health and safety?
Response. Based on cleanup goals presented in the Proposed Plan and
Record of Decision for the Linde site, the Corps is committed to
ensuring that no concentration of total uranium exceeding 600 pCi/g
above background will remain at the site, with an expected average
concentration for total uranium not to exceed 60.8 pCi/g above
background. A post remedial risk assessment will be conducted to assure
that the site falls within the acceptable CERCLA risk range,
104 to 106 increased risk. If risk associated
with the Linde site does not fall within the acceptable CERCLA risk
range after remediation, additional site soils will be excavated until
the risk associated with the site falls within the acceptable range. As
it has done at other sites in the Buffalo area, the Corps will
coordinate the post-remedial action site assessment with State
regulatory agencies to obtain their concurrence that the cleanup
required by the Record of Decision (ROD) was achieved.
The Corps calculated a cleanup level of 554 pCi/g surface and 3,021
piC/g subsurface based on NRC regulations issued in July 1999, which
are relevant and appropriate cleanup requirements at the Linde site.
Prior to issuance of this new requirement, in the proposed plan
provided for public comment, the Corps had proposed a 600 pCi/g maximum
for natural uranium. In order to meet the commitment to the public
which was implicit in the plan released for their review, the Corps
retained the 600 pCi/g maximum for natural uranium as the cleanup
standard for natural uranium in the plan approved by the ROD. All soils
with total uranium concentrations exceeding 600 pCi/g will be excavated
and disposed of offsite. Based on the quantities and distribution of
uranium in the soil and the cleanup criteria for other radioisotopes in
the soil at the Linde site, however, the Corps estimates that the
average residual concentration of uranium remaining onsite will be 60.8
pCi/g after remedial action is completed at Linde.
Envirocare of Utah, Inc.,
Salt Lake City, UT, June 16, 2000.
memorandum
To: Al Rafati
From: Bret Rogers
CC: Andrew Drom
Re: FUSRAP Activity Shipped to Envirocare Compared to Activity in Wine
Per your request, I have summarized the total activity received by
Envirocare for the FUSRAP sites and compared that to the activity
contained in the wine as analyzed by the chem lab. The total activity
from the FUSRAP sites is based on the Army Corps of Engineers
manifested concentrations for Ra-226, Th-230, Th-232, and natural
uranium. Based on analysis from the chem lab, the wine contained a
total radionuclide concentration of 0.045 pCi/g. I conservatively
assumed the same density as water for the wine to estimate a
concentration based on actmity per mass (0.045 pCi/g). The following
table lists the total concentration in the FUSRAP waste compared to the
total concentration in the wine (pCi/g in waste per pCi/g in wine) for
both the maximum concentration for a single shipment and the average
concentrabon for all shipments.
Radionuclide Concentration of FUSRAP Waste to Wine (pCi/g waste per pCi/
g wine)
------------------------------------------------------------------------
Average
Conc. of Maximum
All FUSRAP Concentration
Site Shipments in a Single
(pCi/g per Shipment (pCi/
pCi/g) g per pCi/g)
------------------------------------------------------------------------
Wayne, NJ................................... 8,420 194,000
Maywood, NJ................................. 1,290 12,700
Middlesex, NJ............................... 1,430 1,890
St. Louis, MO............................... 9,070 188,000
Tonawanda, NY............................... 2,780 8,530
------------------------------------------------------------------------
Based on this data, the total radionuclide concenbration in the
FUSRAP waste is approximately a factor of 1,000 to 200,000 ffmes that
found in the wine.
One other note of interest. The EPA has issued a proposed revised
rule making on National Primary Drinking Water regulations (65 FR
21576-21628, April 21, 2000). Contrary to the recent change in
philosophy of other Federal agendes, the EPA continues to argue that
any exposure to radiation can potentially cause harm and that risk
associated with the exposure increases proportionally to the
concentration of the radionuclide. The EPA states in the FR notice that
the health risks from many of the radionuclide Drinking Water Standards
have been underestimated in previous risk assessments.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Maywood SLAPS SKAPS VP St. DTS Wayne SLAPS St. DTS HISS Wayne
--------------------------------------------------------------------------------------------------------------------
Radcode Data Contract No
--------------------------------------------------------------------------------------------------------------------
4004 4005 4011 4013 4024 4101 4102 4103 4104
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Ra 226 (pCi/........................................ Max of Concentration 2545.19 356.35 1.60 4295.21 1217.12 271.03 11.78 12.83 741.17
Min of Concentration 0.02 0.82 1.56 0.16 3.50 0.51 0.01 0.60 2.29
Average of 18.46 13.69 1.60 38.92 155.84 64.65 1.41 2.37 122.04
Concentration
Ra 228 (pCi/........................................ Max of Concentration 2.37
Min of Concentration 2.37
Average of 2.37
Concentration
Ra 230 (pCi/........................................ Max of Concentration 244.01 694.37 10.22 1069.86 1217.12 4658.95 18.24 780.09 741.17
Min of Concentration 0.24 2.79 0.00 0.00 3.50 8.66 0.00 7.44 2.29
Average of 4.20 227.72 10.02 34.53 128.81 1515.03 1.42 114.49 127.86
Concentration
Th 232 (pCi/........................................ Max of Concentration 12925.39 147.58 1.83 8.02 2417.30 16.88 0.12 5.42 1370.07
Min of Concentration 1.81 0.00 1.39 0.00 0.06 0.50 0.00 0.48 0.13
Average of 62.70 1.86 1.79 1.63 357.92 1.34 0.00 0.70 212.31
Concentration
U Nat (pCi/......................................... Max of Concentration 33548.26 429.20 15.02 2961.34 1217.12 1196.21 841.98 15.51 741.17
Min of Concentration 3.35 0.75 0.00 0.14 0.04 0.51 1.20 0.20 2.29
Average of 357.08 44.97 14.74 335.37 153.69 84.30 168.28 2.90 128.11
Concentration
U 238 (pCi/......................................... Max of Concentration 968.25
Min of Concentration 7.30
Average of 30.26
Concentration
Weight Shipped--Tons 58,529.89 51,110.12 1,328.01 12,619.68 23,350.88 54,590.62 10,597.18 19,126.69 9,134.35
-------------------------------------------------------------------------------------------------------------------------------------------
Fraction of Total % 24.35% 21.26% 0.55% 5.25% 9.71% 22.71% 4.41% 7.96% 3.80%
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Responses by the Department of Energy to Questions From Senators Smith
and Baucus
Question 1. In a March 13, 2000, letter from Idaho State Senator
Clinton Stennett to Nuclear Regulatory Commission Chairman Richard
Meserve, Sen. Stennett asked Chairman Meserve about appropriate health,
safety and environmental protections of a RCRA subtitle C facility
relative to the disposal of radioactive material.
Chairman Meserve responded: ``Many of the standards governing RCRA
landfills are similar in some respects to those required at NRC-
licensed sites handling 11(e)(2) by-product material (tailings or
wastes from extraction of uranium or thorium from ore). However, RCRA
landfills are subject to State and/or EPA requirements. RCRA disposal
facilities, like state-of-the-art mill tailings impoundments subject to
NRC licensing, rely, in part, on a system of liners and leachate
detection and collection systems to prevent releases of hazardous
materials to the environment. RCRA disposal and NRC's mill tailings
regulations also address monitoring and inspection, site selection, and
other detailed requirements. Most, if not all of these controls, help
protect public health and the safety, and the environment from both
radioactive and non-radiological materials.''
Does the Department agree with the Chairman that such controls
provide protection from the risks associated with radioactive
materials?
Response. Yes, the Department agrees with the Chairman that RCRA's
requirements for disposal of hazardous wastes in landfills can provide
protection from the risks associated with radioactive materials, as
long as the quantities and concentrations of radioactive material are
within the range considered in the risk analysis used for development
of the waste acceptance criteria for the RCRA subtitle C facility.
Question 2. In a December 13, 1983 letter from Secretary of Energy
Donald Paul Hodel to the Honorable John Evans, Secretary Hodel states:
``FUSRAP waste does not typically qualify as low-level radioactive
waste under the definition contained in the Nuclear Waste Policy Act of
1982.''
Has there been a change in that position?
Response. No, there has not been a change in that position. While
the program was with the Department of Energy, FUSRAP waste was
generally treated as 11(e)(2) material rather than low-level waste.
Question 3. 11(e)(2) waste can be found with varying levels of
radiation. Does the risk to human health and the environment change
with the level of radiation?
Response. Risk from radioactive material changes with the level of
radiation as well as other factors. For example, land use has a
significant effect on the risk to human health. Further, the amount of
material or soil between the source and a person has a significant
effect on the level of risk.
Question 4. How many off-site, non-DOE licensed facility vendor
options for the disposal of low-activity waste 11(e)(2) waste were
available to the Department?
Response. When the Department requested bids for commercial
disposal of 11(e)(2) material, two bids were received, as well as a
number of expressions of interest. The companies submitting expressions
of interest were not licensed by NRC, and so were not able to bid. Of
the two companies that submitted bids, only Envirocare of Utah was
judged to be responsive.
Question 5. How much of the 11(e)(2) waste was disposed of at a DOE
licensed facility?
Response. The Department disposed of low-level waste from FUSRAP
sites at both DOE's Hanford and Oak Ridge low-level waste disposal
facilities. This low-level waste may have included small quantities of
11(e)2 waste, which is permissible under DOE policy, but the exact
amount cannot be quantified with certainty because disposal records are
not readily available.
Question 6. Do the Army Corps of Engineers and private contractors
have the same options for disposal as the Department to send 11(e)(2)
waste to a DOE licensed facility?
Response. While developing their current Memorandum of
Understanding, the Department of Energy and the Corps of Engineers
discussed the potential use of DOE disposal facilities for 11(e)(2)
waste. In those discussions we agreed that, if no other disposal
options were available to the Corps, then the Department would consider
accepting 11(e)(2) waste from the Corps of Engineers, subject to
completion of the necessary environmental reviews.
Question 7. We understand that during the Department's
administration of FUSRAP, it was the Department's policy to dispose of
AEA 11(e)(2) wastes only at NRC licensed facilities, regardless of when
those wastes were generated (in the case where off site disposal was
provided). Did the Department adopt this policy in order to ensure the
protection of public health and environment from the hazards posed by
radioactive waste?
Please provide any Department guidance documents, policy statements
or other statements reflecting the Department's policies concerning the
disposal of 11(e)(2) wastes offsite, and the Department's rationale for
providing that such disposal should take place at NRC licensed
facilities.
Response. In general, the Department of Energy's (DOE) practice was
that 11(e)2 material must be disposed of in a Nuclear Regulatory
Commission (NRC) licensed disposal facility regardless of the date of
the generation of those wastes. The Department's rationale for this
practice was based upon the knowledge that these facilities were
specifically designed for the protection of public health, safety and
the environment against radiation hazards from large quantities of
these materials. One exception to this practice was that other
facilities, which were licensed to receive small quantities of
radioactive material, could receive 11(e)2 material if the regulatory
agency which licensed that facility agreed that such disposal was
appropriate.
Submitted for the record is a copy of canceled DOE Order 5820.2A,
``Radioactive Waste Management,'' which was in effect when FUSRAP was a
DOE program. This order established general guidelines for DOE's
management of radioactive waste. This DOE order was replaced by DOE
Order 435.1 (also attached), effective July 9, 1999. Any documents
dealing specifically with disposal under the FUSRAP were turned over to
the Corps at the time of program transfer, along with contract files,
and are not available to DOE at this time.
Question 8. In a March 8, 2000 letter from Senator Robert Bennett
to Nuclear Regulatory Commission Chairman Richard Meserve, Senator
Bennett asked Chairman Meserve whether he believed NRC licensing
requirements for 11(e)(2) material are more protective of public health
and environment than RCRA requirements.
Chairman Meserve responded: ``In general, I believe that NRC-
regulated and licensed disposal facilities, because they are subject to
requirements that focus on protection of public health, safety, and the
environment from radiological hazards, may afford more protection
against radiological hazards.''
Does the Department agree with Chairman Meserve's statement? Does
Chairman Meserve's statement also reflect the Department's rationale
for disposing of 11(e)(2) waste at NRC licensed facilities?
Response. The Department agrees that NRC radioactive materials
management and disposal requirements are designed to protect the public
and the environment. However, that does not necessarily mean that the
technical design of non-NRC licensed disposal facilities would not
provide the same level of protection for human health and the
environment.
The Department's rationale for disposing of 11(e)(2) waste at NRC-
licensed facilities was based upon the knowledge that these facilities
were specifically designed for the protection of public health, safety
and the environment against radiation hazards from large quantities of
these materials.
Question 9. For 11(e)(2) waste disposed of off site by the
Department prior to the transfer of FUSRAP to the Corps, what are the
Department's long term custodial and other responsibilities over those
11(e)(2) wastes now at licensed NRC facilities? Is the Department
responsible in perpetuity for ensuring that those materials do not
migrate or otherwise threaten human health or the environment?
Response. The Atomic Energy Act established the requirements for
the possession of 11 (e)(2) waste at NRC-licensed facilities, which
could lead to the Department's acquiring long-term stewardship
responsibilities at a site, subject to certain conditions, if the NRC
requests the Department to assume this role. Under NRC licensing
requirements, a facility owner or operator must provide a technical
plan and a financial surety bond to support indefinite long-term
stewardship.
To the extent that waste from FUSRAP is disposed of at these NRC-
licensed sites, the Department might have potential. Long-term
stewardship responsibility. If the Department is required to take
custody of these NRC-licensed sites, it would be responsible for
ensuring the site is maintained in a manner that protects human health
and the environment until the materials no longer pose a threat of
release.
Question 10. For 11(e)(2) waste disposed of by the Corps after
FUSRAP was transferred to the Corps, what are the Department's long
term custodial and other responsibilities over 11(e)(2) wastes disposed
of at RCRA and other disposal facilities?
Response. NRC-licensed sites used by the Corps for disposal of
11(e)(2) material fall under the same mandate as other NRC-licensed
sites for which DOE may be assigned stewardship responsibilities. The
Department does not have any potential stewardship role or
responsibility for non-NRC-licensed sites utilized by the Corps for
disposal of 11(e)(2) material.
The March 1999 Memorandum of Understanding (MOU) between the
Department and the Corps makes clear that the Corps will be responsible
for whatever post-cleanup liabilities result from its FUSRAP
activities. Although the MOU does not specifically address the Corps'
use of non-NRC regulated waste disposal facilities, it does make the
Corps responsible for any liability to the Government resulting from
the use of these facilities. Specifically, Article III.C.2.n. of the
MOU assigns responsibility to the Corps for `` . . . damages due to the
fault or negligence of USACE or its contractors, and shall hold and
save harmless DOE free from all damages arising from USACE FUSRAP
activities to the extent allowable by law. . . .''
Question 11. Please identify what federal cleanup standards the
Department applied to FUSRAP cleanups and 11(e)(2) waste in particular.
Please provide the Code of Federal Regulations citation to those
cleanup standards. In addition, please provide any Department policy or
guidance documents, including guidance to DOE regional offices
concerning FUSRAP cleanup standards. Finally, were state cleanup
standards taken into account by the Department during its
administration of FUSRAP and, if so, how?
Response. The Department applied the requirements in DOE Order
5400.5, ``Radiation Protection of the Public and the Environment,'' to
FUSRAP sites. This DOE Order adopted EPA's implementing regulations,
promulgated pursuant to the Uranium Mill Tailings Radiation Control Act
of 1978, ``Standards for Remedial Actions at Inactive Uranium
Processing Sites'' (40 CFR 192). The regulations established cleanup
standards for surface and sub--surface soils. In addition, the
Department conducted many of its FUSRAP operations under the
Comprehensive Environmental Response, Compensation, and Liability Act
and worked with State and Federal environmental regulators to ensure
that the standards utilized for cleanup were protective of human health
and the environment. The Department also worked with State regulators
in developing the DOE plan for cleanup of each FUSRAP site and
considered State requirements.
Question 12. What were the Department's annual appropriations and
how many FTE's were allocated for FUSRAP for each year the Department
administered the program?
Response. The Department managed FUSRAP from 1974 to 1997. During
that time, the annual appropriation grew in response to the needs of
the program, and as more sites were included in the program, based on
reviews of past involvement. As the program moved from conducting
assessments to the actual cleanup of more and more sites, the
appropriation grew as well, to support the higher level of action being
carried out. The following is a list of the DOE appropriations from FY
1992 through FY 1997, when the program was transferred to the Corps.
----------------------------------------------------------------------------------------------------------------
Fiscal Year 1992 1993 1994 1995 1996 1997
----------------------------------------------------------------------------------------------------------------
Appropriation ($M) $49.0 $40.9 $41.5 $74.1 $73.5 $74.0
----------------------------------------------------------------------------------------------------------------
The number of federal FTE's in the years referenced remained
basically stable even though the program continued to grow. The number
of FTE's in these years was a total of approximately 25 Federal
employees in Headquarters and in the field.
Question 13. During the time the Department administered FUSRAP,
did the Department send 11(e)(2) waste from a cleanup offsite to a
facility other than a NRC licensed facility?
Response. The Department did this on one occasion, after
consultation with State regulators and the NRC, regarding the release
of this material for disposal. This waste had radioactive levels below
NRC and DOE release limits and was released from radiological control,
using established DOE protocols.
Question 14. What role does the Department have in developing,
reviewing or approving cleanup plans developed by the Corps under
FUSRAP?
Response. The Department has no role in developing, reviewing, or
approving cleanup plans developed by the Corps under FUSRAP.
Question 15. The Corps has represented that under its ``new multi-
award disposal contract'' it can dispose of FUSRAP 11(e)(2) waste at
RCRA facilities for $85/cy. How does this price compare with disposal
rates that DOE pays for disposal of radioactive wastes, such as
radioactive wastes from Fernald, Ohio, at NRC-licensed commercial
disposal facilities?
Response. The comparison of disposal of 11(e)2 material in a
Resource Conservation and Recovery Act (RCRA) facility, to disposal of
LLW in an NRC-licensed commercial disposal facility is difficult to
make. The different licensing requirements and the differences in
market demand account for a great deal of the difference in price. It
should be recognized, however, that 11(e)(2) material is not classified
as LLW, and therefore, any cost comparisons may be misleading.
According to the Department's ``Commercial Disposal Policy Analysis for
Low-Level and Mixed Low-Level Waste'' of March 9, 1999, the
Department's costs for commercial disposal in an NRC-licensed facility
for LLW (such as the material from the Department's Fernald, Ohio site)
range from $130 per cubic yard to $164 per cubic yard.
__________
Statement of L. Max Scott, Ph.D., Professor, Louisiana State University
My name is L. Max Scott. I am an Adjunct Associate Professor of
Physics and Astronomy and the System Radiation Safety Officer at
Louisiana State University. I hold a Bachelor of Science Degree from
Texas A&M University and a Master of Science and Doctor of Philosophy
Degrees from Purdue University. I am a certified Health Physicist and a
Fellow of the Health Physics Society. I have worked as an applied
health physicist for over 39 years. For most of that time, either as a
primary job responsibility through research grants or as a consultant,
I have been involved with radiation safety issues related to naturally
occurring radioactive materials (NORM) and similar materials like the
majority of the waste resulting from the remediation of formally
utilized site remedial action plan sites (FUSRAP).
I have received grants from the American Petroleum Institute, the
Environmental Protection Agency, and the Mineral Management Service to
study various issues related to the safety and disposal of NORM. As you
may know, the State of Louisiana was the first State to specifically
regulate NORM from petroleum production. I was a member of the
committee of four that suggested those regulations. Subsequently, I
served on other Louisiana committees concerning regulation and disposal
of NORM. I was a member of the NORM advisory committee to the
Conference of Radiation Control Program Directors during the drafting
of the suggested State regulations for NORM. I am on the Health Physics
Society NORM subcommittee. I am currently assisting two companies who
are remediating FUSRAP sites and a company that is remediating a NORM
site. I have consulted extensively with the petroleum industry, the
fertilizer industry, the aluminum industry and to a lessor degree with
other industries that encounter NORM.
The views that I express today are mine and do not necessarily
reflect those of any industry, trade association, professional society,
the State of Louisiana, or Louisiana State University.
Usually at this point in my presentation I give the audience an
examination by asking them who were David Banner and Peter Parker. As
you may know, David Banner was the incredible hulk. He became the
incredible hulk after exposure to gamma radiation. Peter Parker became
the spider man after he was bitten by a radioactive spider.
Unfortunately, many of the young adults of today were introduced to
radiation by this means. If you are as old as I am, your introduction
to radiation was reading about the dropping of the atomic bombs at the
end of World War Two. Mention Three-mile Island or Chernobyl and most
anyone can identify them. Mention Texas City or Coconut Grove and more
than likely people will identify a city in Texas and a place to gather
coconuts. Yet over 500 people died in Texas City as a result of a ship
which was loaded with ammonium nitrate that exploded, and Coconut Grove
was a night club in Boston where more than 200 people burned to death
in a fire. We routinely ship ammonium nitrate and some of us frequent
night clubs. I do not mean to belittle Three-mile Island or Chernobyl,
but to emphasize the fact that there are risks in all human endeavors.
For reasons that are not clear to me, anything associated with
radiation appears to be reported more frequently and more intensely
than other real or potential hazards. For example, in the early 1990's
a quantity of waste oil contaminated with trace amounts of radioactive
material was incinerated in Louisiana. Although I did not personally
count them, I was told that there were articles concerning the
radioactive material in the local paper for 43 consecutive days.
Subsequent studies revealed that the incineration did not result in
exposure to the public. Such reporting has engendered an undue fear of
radiation and the potential health effects of exposure to radiation. I
believe that we need to provide a safe environment and provide that
degree of protection commensurate with the scientifically defined risk,
not some perceived or extrapolated risk. My goal today is to attempt to
set out what I feel are reasonable approaches for the disposal of NORM
waste and most FUSRAP waste.
As has been pointed out today, depending on the source of the NORM,
it may be unregulated, regulated in varying manners by some of the
States, and in some limited cases by Federal agencies. It is my
understanding that FUSRAP waste is regulated differently depending on
the date that remediation occurred. The alpha particle that is emitted
when an atom of internally deposited radium-226 decays, does not know
whether the radium atom originated in water treatment plant waste, a
phosphogypsum stack, a FUSRAP site, or scale from petroleum production
tubulars. If it has the potential to cause harm from one source, it has
the potential to cause harm from all sources.
According to the EPA (EPA 1993) the majority of FUSRAP waste is
uranium, thorium, and radium. Recoginizing that various radionuclides
have different radiological properties and thus pose differing exposure
potential, NORM and FUSRAP waste can be treated in a similar manner.
As a general philosophy I subscribe to the proposed EPA guidance on
radiation protection of the public (EPA 1994):
There should be no radiation exposure to the general public unless
it is justified by the expectation of an overall benefit from the
activity causing the exposure.
Doses to individuals and populations should be as low as reasonably
achievable (ALARA).
The annual effective dose equivalent to individuals from all
controlled sources combined, including sources not associated with
operations of the nuclear-fuel cycle, but excluding indoor radon,
should not exceed 1 millisievert (100 mrem).
Annual effective dose equivalent to individuals up to 5
millisieverts (500 mrem) may be permitted, with prior authorization, in
unusual, temporary situations.
Continued exposure over substantial portions of a lifetime at or
near 1 millisievert (100 mrem) per year should be avoided.
Authorized limits for specific sources or practices should be
established to ensure that the primary dose limit of 1 millisievert
(100 mrem) per year for all controlled sources combined and the ALARA
objectives are satisfied, and the authorized limit for any source or
practice, normally should be a fraction of the dose limit for all
controlled sources combined.
However, from a practical standpoint I believe that the National
Council on Radiological Protection and Measurements (NRCPM 1993) has
prescribed annual limit for man made sources which are applicable for
use in the disposal of NORM waste and most FUSRAP waste, ie.:
One millisievert (100 mrem) per year for continual exposure and 5
millisievert (500 mrem) per year for infrequent exposure.
The current regulations covering the disposal of NORM waste, and in
some cases FUSRAP waste, are not consistent. It is not possible in the
time allotted to cover the various regulations; however, I would like
to discuss some of those which appear to offer practical solutions.
Colorado allows for any radioactive material containing up
to 40 pCi/g total alpha to be disposed of in nonhazardous solid waste
disposal facilities (Mallory in DOE 1999).
Michigan allows bulk waste containing up to 50 pCi/g
radium-226 to be disposed of in a Type II solid waste landfill
(nonhazardous) (MDEQ 1996).
Louisiana allows for nonhazardous oilfield waste
containing up to 30 pCi/g radium-226 to be disposed of in nonhazardous
oilfield disposal facilities (LEC 1999).
Uranium mill tailing containing unlimited quantities of
radium-226, and thorium-230 can be disposed of by burial under the
Uranium Mill Tailing Act. Typical quantities range up to a few hundred
pCi/g (Title 40 CFR Part 192).
The Nuclear Regulatory Commission until recently allowed for the
disposal or 30-35 pCi/g of uranium and 10 pCi/g of thorium by burial.
Under specified disposal conditions these values can range up to 3000
pCi/g and 500 pCi/g respectively (46 FR 62061).
The Environmental Protection Agency has published guidelines for
the disposal of radium-226 and radium-228 in water treatment plant
waste (EPA1994):
Solid waste containing 3 pCi/g radium-226 plus radium-228
and uranium at less than 50 mg/g (about 35 pCi/g) may be disposed of
without institutional controls in a municipal landfill, if the volume
of such waste does not exceed 10 percent of the total waste.
Solid waste containing 3-50 pCi/g radium-226 plus radium-
228 in facilities comparable to those developed under Subtitle D of
RCRA.
Solid waste containing 50-2,000 pCi/g radium-226 plus
radium-228 in facilities comparable to those developed under Subtitle C
of RCRA.
The Corps of Engineers has proposed and the Nuclear Regulatory
Commission has given tacit concurrence for the disposal of FUSRAP waste
in RCRA disposal facilities, dose to be limited to 1 millisievert (100
mrem) per year (Essig 2000).
In my opinion the only practical method of disposing of NORM and
most FUSRAP waste is by burial in a landfill. Under these conditions
the only practical exposure pathways are airborne particulates during
disposal operations and leeching to groundwater over an extended period
of time. Airborne particulate can be controlled by using appropriate
dust suppression techniques. Thus, there is no exposure potential at
the time the waste is disposed. I am neither a civil engineer nor a
hydrologist; therefore, I cannot speak authoritatively regarding the
likelihood of the groundwater pathway. However, it is my opinion that
EPA provided adequate requirements for the construction of Subtitle C
and D RCRA facilities to prevent appreciable leeching to groundwater.
In my opinion there are two approaches whereby NORM waste and most
FUSRAP waste can be disposed of so that the environment and the public
are afforded adequate protection.
1. Dispose of waste in Subtitle C and D RCRA facilities at
concentrations such that the average dose to an individual member of
the public does not exceed 1 millisievert (100 mrem) per year with a
maximum dose not to exceed 5 millisievert (500 mrem) per year. Guidance
should be provided to assure that dose estimates are made using
reasonable and practical exposure scenarios. Such waste should not
exceed 10 percent of the anticipated capacity of the disposal facility.
2. Use the EPA guidance for water treatment waste as framework as
follows:
Develop comparable concentrations for uranium and thorium
equivalent to those values proposed for radium-226 plus radium-228. As
a matter of reference, I have included values for uranium and thorium
which pose a similar risk to the radium values. These values were
derived from ratios of the allowable discharges to sanitary sewer
contained in 10 CFR Part 20, Appendix B, Table 3.
Disposal as follows:
Municipal landfills:
3. pCi/g radium-226 plus radium-228, or 15 pCi/g total uranium or
1.5 pCi/g total thorium. For mixtures the sum of fraction rule to be
applied. Volume of such waste not to exceed 10 percent of the
anticipated volume of the facility. During disposal operations dust
suppression techniques to be employed as necessary.
Subtitle D RCRA waste facilities:
Up to 50 pCi/g radium-226 plus radium-228 or 250 pCi/g total
uranium or 25 pCi/g total thorium. For mixtures the sum of fraction
rule to be applied. Volume of such waste not to exceed 10 percent of
the anticipated volume of the facility. During disposal operations dust
suppression techniques to be employed as necessary.
Subtitle C RCRA waste facilities:
Up to 2000 pCi/g radium-226 plus radium-228 or 10,000 pCi/g total
uranium or 1,000 pCi/g total thorium. For mixtures the sum of fraction
rule to be applied. Volume of such waste not to exceed 10 percent of
the anticipated volume of the facility. During disposal operations dust
suppression techniques to be employed as necessary.
I am sure that each member of this committee has cast votes and
taken positions that were not in keeping with the desires of their
constituents, but the positions taken were the best for the Nation as a
whole. Drafting and supporting legislation regarding the disposal of
NORM wastes and most FUSRAP waste may put you in that position.
I encourage you to draft and support legislation that will provide
for methods to dispose of NORM waste and most FUSRAP waste in a
practical and uniform manner utilizing RCRA type facilities.
Thank you for the opportunity to express my views.
______
Statement of Anthony J. Thompson, Shaw Pittman, on Behalf of the
Uranium Recovery Industry
The purpose of this testimony is to address an issue of great
importance to the uranium recovery industry in the United States,
specifically the Nuclear Regulatory Commission's (NRC), jurisdiction to
regulate certain radioactive materials located at Formerly Utilized
Sites Remedial Action Program (FUSRAP) sites under certain defined
circumstances, i.e., when such materials are removed offsite from DOE
control for final disposal. Whether the NRC properly has jurisdiction
to regulate the materials located at the FUSRAP sites under such
circumstances wholly depends on the regulatory status of the materials.
The regulatory status of the materials turns on an interpretation of
certain provisions of the Atomic Energy Act (AEA), as amended, and
NRC's implementing regulations. In short, the issue of whether NRC
properly has jurisdiction over the materials depends on whether
materials that were created prior to the enactment of the Uranium Mill
Tailings Radiation Control Act (``UMTRCA'') of 1978 (amending the AEA),
and that satisfy the definition of ``byproduct material'' set forth in
section 11e.(2) of the AEA, are in fact ``byproduct material'' subject
to NRC regulation, when under the control of a ``person'' as defined by
the AEA. DOE and NRC as successors to the Atomic Energy Commission
(AEC) are not ``persons'' under the AEA, therefore do not require a
license to handle 11e.(2) byproduct material.
NRC REGULATIONS AND POLICY
10 C.F.R. Sec. 40.2a (``Coverage of inactive tailings sites'')
developed in 1980 shortly after the passage of UMTCRA states in
relevant part:
(b) The Commission will regulate byproduct material as defined in
this Part that is located at a site where milling operations are no
longer active, if such site is not covered by the remedial action
program of Title I of the Uranium Mill Tailings Radiation Control Act
of 1978. The criteria in Appendix A of this part will be applied to
such sites.
See attached. This section requires NRC to regulate byproduct
material located at sites where milling operations are no longer
active, with the only caveat being that the site must not be covered by
Title I of UMTRCA. Importantly, the provision does not limit the NRC's
authority to byproduct material produced at a NRC licensed facility
after the effective date of UMTRCA. For example, any FUSRAP materials
meeting the definition of byproduct material in section 11e.(2) of the
AEA, that were not subject to the DOE's control at that time are
subject to NRC jurisdiction and Appendix A regulations. Therefore, any
FUSRAP materials meeting the definition in section 11e.(2) that leave
DOE control for final disposal must be subject to NRC regulatory
oversight.
In 1992, NRC concluded that FUSRAP materials that satisfy the
definition of ``byproduct material'' in section 11e.(2) qualify as
11e.(2) byproduct material, regardless of when the materials were
generated. Specifically, NRC stated:
Government contracts were issued for thorium source material
used in the Manhattan Engineering District and early Atomic
Energy Commission programs. Wastes resulting from that
processing and disposal at these [FUSRAP] sites would qualify
as 11e.(2) byproduct material.
57 Fed. Reg. at 20,527 (May 13, 1992) (emphasis added) (see attached).
More recently however, NRC has taken a position inconsistent with
the 1992 Federal Register notice. Specifically, in a March 2, 1998
letter to Ann Wright of the U.S. Army Corps of Engineers (USACE),
Robert L. Fonner, Special Counsel for Fuel Cycle and Safeguards
Regulations, NRC (hereinafter ``the Fonner letter''), stated that:
UMTRCA gave NRC statutory authority over tailings [from ore
processed for source material content], but only over tailings
from activities licensed by NRC as of the effective date of the
Act (November 8, 1978), or thereafter. See Section 83 of the
Atomic Energy Act of 1954 as amended. . . .
Because the residuals at the listed [FUSRAP] sites were
generated long before NRC had any jurisdiction over tailings,
and were never produced from source material extraction under
NRC license, NRC today has no basis to assert any regulatory
authority over the handling of those residuals at the listed
sites.
Fonner Letter at 1. In short, the Fonner Letter asserts that NRC
lacks jurisdiction over pre-1978 byproduct material because the
Commission does not have the authority to regulate as 11e.(2) byproduct
material tailings or wastes that were generated prior to the enactment
of UMTRCA, unless those tailings or wastes were generated pursuant to
an NRC-issued license. The letter goes on to conclude that since pre-
1978 byproduct material cannot be regulated by NRC as 11e.(2) byproduct
material, NRC regulations would not preclude the disposal of such
material in a facility that is not licensed under the AEA (for example,
a RCRA hazardous waste disposal facility). Id. at 2.
The Fonner Letter is not only inconsistent with NRC stated policy
in the 1992 Federal Register and section 40.2a, but also with the
Staff's acceptance of DOE's designation of the materials as 11e.(2)
byproduct material in various decisions to license the processing and/
or disposal of FUSRAP materials. See U.S. Department of Energy, The
Formerly Utilized Sites Remedial Action Program (FUSRAP): Building
Stakeholder Partnerships to Achieve Effective Cleanup, DOE/EM-0233
(April 1995), and Affidavit of Joseph J. Holonich, Deputy Director ,
Division of Waste Management, Nuclear Materials Safety and Safeguards,
in the Matter of International Uranium (USA) Corp., Docket No. 40-8681
MLA-4 (Jan. 29, 1999).
In sum, the Fonner letter's legally incorrect assertion that pre-
1978 byproduct material is not 11e.(2) byproduct material subject to
NRC's jurisdiction and its conclusion that such material can be
disposed of in a facility that is not licensed under the AEA is
inconsistent with NRC and DOE policy. The Fonner Letter correctly
concludes however, that such material, when present at a FUSRAP site or
other DOE-administered site, is not subject to regulation by NRC
because the Department of Energy (DOE) is not required to be licensed
by the NRC under the AEA to handle byproduct material.
THE PLAIN LANGUAGE OF THE AEA
``Byproduct material'' is defined in section 11e.(2) of the AEA as
follows: the tailings and wastes produced by the extraction or
concentration of uranium or thorium from any ore processed primarily
for its source material content.
42 U.S.C. Sec. 2014e.(2). A plain reading of this definition shows
that Congress did not impose any temporal limitations on the materials
that qualify as 11e.(2) byproduct material. Similarly, Congress did not
limit 11e.(2) byproduct material to include only materials produced
pursuant to an AEA license. For purposes of AEA section 11e.(2),
``byproduct material'' is defined in terms of only two characteristics:
(i) the type of material at issue (i.e., tailings and wastes), and (ii)
the process by which the material was created (i.e., by the extraction
or concentration of uranium or thorium from ore processed primarily for
its source material content). Importantly, Congress did not define
11e.(2) byproduct material in terms of when the material was produced
or whether it was produced pursuant to an AEA license. In other words,
notwithstanding the Fonner Letter's assertions, Congress did not define
11e.(2) byproduct material to mean tailings and wastes produced only
after the date of enactment of UMTRCA or only after the effective date
of UMTRCA. Congress also did not define 11e.(2) byproduct material to
exclude material that was not produced pursuant to an NRC-issued
license. As the plain language of the statute indicates, Congress
understood that materials that meet the definition of 11e.(2) byproduct
material generated prior to the effective date of UMTRCA outside the
context of an NRC license are 11e.(2) byproduct material.
Further, section 81 of the AEA governs the NRC's licensing of
``byproduct material.'' Section 81 provides that no person may own,
possess, produce, transfer or receive 11e.(2) byproduct material
without obtaining a license or other authorization from NRC. See 42
U.S.C. Sec. 2111. Notably, section 81 does not limit the license
requirement to material created after the enactment of UMTRCA. Rather,
section 81 applies to any material that meets the definition of
byproduct material in section 11e.(2).
Finally, section 83 of the AEA upon which the Fonner letter relies
does not support the proposition that NRC is without jurisdiction to
regulate the FUSRAP material. The Fonner letter provides: UMTRCA gave
NRC statutory authority over such [uranium mill] tailings, but only
over tailings resulting from activities licensed by NRC as of the
effective date of the Act (November 8, 1978) [sic] or thereafter. See,
Section 83 of the Atomic Energy Act of 1954 as amended.
Fonner Letter at 1 (emphasis added). Here, the Fonner Letter cites
Section 83 to support the assertion that NRC has regulatory authority
only over tailings from activities conducted pursuant to an NRC-issued
license that was either in effect on the effective date of UMTRCA or
that was issued after the effective date of UMTRCA. This conclusion is
based on an misinterpretation of section 83. Section 83 in no way
limits NRC's authority to license pre-1978 byproduct material. Instead,
that section simply prescribes certain provisions that must be included
in licenses issued as of the effective date of UMTRCA. Specifically,
Section 83 requires:
Any license issued or renewed after the effective date of [UMTRCA]
. . . of any activity which results in the production of any [11.e(2)]
byproduct material . . . shall contain terms and conditions . . . to
assure that, prior to termination of such license;
(1) the licensee will comply with decontamination, decommissioning,
and reclamation standards prescribed by the Commission . . . and;
(2) ownership of any [11e.(2)] byproduct material . . . that
resulted from such licensed activity shall be transferred to (A) the
United States or (B) the State in which such activity occurred [at the
state's option].
42 U.S.C. Sec. 2113. In addition, Section 83 contains similar
provisions regarding the inclusion in licenses of provisions requiring
transfer of title to land used for the disposal of 11e.(2) byproduct
material. In other words, AEA Section 83 requires that certain
provisions pertaining to the transfer of ownership and custody over
byproduct material and the land used for its disposal must be included
in 11e.(2) licenses that are issued after the effective date of UMTRCA
and in licenses that were already in existence as of the effective date
of UMTRCA. Although Section 83 prescribes certain provisions that must
be included in 11e.(2) licenses, that section does not speak to the
broader question of NRC's authority to license activities involving
11e.(2) byproduct material. Section 83 does not, nor was it intended,
to limit NRC's authority to license the handling of pre-1978 byproduct
material.
DOE'S DESIGNATION OF MATERIALS AS 11E.(2) BYPRODUCT MATERIAL
Further, as discussed above, the DOE has designated certain FUSRAP
wastes as 11e.(2) byproduct material. Under the Atomic Energy Act
(AEA), the DOE is self-regulating with respect to AEA materials.\1\
Pursuant to that authority, DOE determined that certain material at
FUSRAP sites constitutes 11e.(2) byproduct material.\2\ Because DOE has
designated certain material 11e.(2) byproduct material, that material
must be sent to an AEA licensed facility when it leaves DOE control.
Moreover, DOE's determination that certain FUSRAP material is 11e.(2)
byproduct material should be entitled to deference since UMTRCA
specifically grants to DOE the authority to determine whether materials
qualify as ``residual radioactive materials'' subject to regulation
under Title I, and the term ``residual radioactive materials''
encompasses materials that meet the definition of 11e.(2) byproduct
material. With regard to FUSRAP material specifically, DOE is very
familiar with the history and characteristics of the material and based
its determination on this information. Moreover, deference to DOE's
determination would be consistent with the past practices of the NRC
Staff in its licensing decisions, where the Staff has, in fact,
accepted DOE's designation of certain FUSRAP material as 11e.(2)
byproduct material.
---------------------------------------------------------------------------
\1\ See e.g., Testimony of Mr. James L. Liverman, DOE Acting
Assistant Secretary, Hearings on H.R. 13382 Before the Subcomm. On
Energy and the Environment, 95th Cong., 2nd Sess. 42 (June 26, 1978)
(Stating that FUSRAP sites were subject to DOE control therefore not
included in UMTRCA as inactive (Title I) sites or active (Title II)).
\2\ See, U.S. Department of Energy, the Formerly Utilized Sites
Remedial Action Program (FUSRAP): Building Stakeholder Partnerships to
achieve Effective Cleanup, DOE/EM-0233 (April 1995).
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consequences of inconsistent policies and fonner letter assertions \3\
---------------------------------------------------------------------------
\3\ See Affidavit of Joseph J. Holonich, Deputy Director, Division
of Waste Management, Nuclear Materials Safety and Safeguards, in the
Matter of International Uranium (USA) Corp., Docket No. 40-8681 MLA-4
(Jan. 29, 1999).
---------------------------------------------------------------------------
Due to inconsistent policy positions, the USACE, relying on the
Fonner letter, contracted for the disposal of FUSRAP materials meeting
the definition of 11e.(2) byproduct material in a non-11e.(2), non-AEA
licensed RCRA site in Buttonwillow, California. The USACE also
contracted for the disposal of FUSRAP material meeting the definition
of 11e.(2) byproduct material in a NRC licensed 11e.(2) disposal
facility owned and operated by Envirocare of Utah, Inc. Since the
FUSRAP materials either meet the definition of 11e.(2) byproduct
material or not, either the Buttonwillow facility or the Envirocare
facility is creating commingled waste and is disposing of the material
unlawfully.
Finally, and perhaps most importantly, from a public health and
safety perspective, these FUSRAP materials are radiologically,
chemically and physically similar to those generated pursuant to AEC
contracts at what are now Title I and Title II sites. It is nonsensical
to treat the FUSRAP materials differently from the materials at the
Title I and Title II sites.
______
[From the Federal Register, Vol. 57, No. 93, Notices, Wednesday, May
13, 1992]
Formerly Utilized Sites Remedial Action Program (FUSRAP)
These sites primarily processed material such as monazite sands, to
extract thorium for commercial applications. Government contracts were
issued for thorium source material used in the Manhattan Engineering
District and early Atomic Energy Commission programs. Wastes resulting
from that processing and disposed of at these sites would qualify as
11e.(2) byproduct material. However, it is not clear that all the
contaminated material at these sites result from processing of ore for
thorium. At some sites there was also processing for rare earths and
other metals. The DOE which accepts responsibility for the FUSRAP
materials is investigating options for disposal and control of these
materials. DOE estimates that a total of 1.7 million cubic yards of
material is located at sites in 73 States. Recent proposals have
considered the transportation of FUSRAP materials from New Jersey to
tailing piles at uranium mills in other States, such as Utah,
Washington, and Wyoming.
__________
Statement of Scott Slesinger, Vice-President, Governmental Affairs,
Environmental Technology Council
My name is Scott Slesinger. I am Vice-President for Governmental
Affairs of the Environmental Technology Council (ETC), a trade
association that represents the leading companies involved in hazardous
waste treatment, recycling and disposal in the United States and
Canada. Our members operate 20 Subtitle C landfills in the United
States of which three have been selected by the U.S. Army Corps of
Engineers (USACE or ``Corps'') to take very low-activity radioactive
wastes from the Formerly Utilized Sites Remedial Action Program
(FUSRAP).
My remarks today address the current and ongoing disposal of
certain FUSRAP wastes at hazardous waste landfills regulated under
Subtitle C of the Resource Conservation and Recovery Act (RCRA). We
believe it is critical to understand that these wastes are high volume
and low risk materials that contain very low concentrations of
radioactivity. Typical shipments of FUSRAP waste include ore tailings,
related residues and soil contaminated with very low concentrations of
radioactive constituents. For instance, demolished buildings that had
been used for research are part of the FUSRAP program. Prior to
demolition, these buildings are cleaned using HEPA-filtered vacuuming
and high pressure washing of all building surfaces to remove loose
contamination. Then the buildings were demolished and the remaining
building debris contained some residual low-activity residual
radioactivity. These low-activity radioactive wastes are equivalent to
other wastes certain Subtitle C facilities have historically disposed.
These wastes are significantly below the ``low-level'' designation that
has been subject to much congressional debate for the past years.
Our testimony will explain why we believe that the design and
operational technology used by certain Subtitle C landfills for
disposal of FUSRAP wastes is environmentally sound and fully protective
of human health and the environment. We urge this committee to ensure
that the Subtitle C option remains available as a safe alternative to
the limited single licensed low-level waste (LLLW) disposal site
option. Having multiple disposal sites lowers the cost and allows for a
more expeditious cleanup of these sites. In addition, we will testify
to our belief that there is no regulatory ``gap'' in the law. RCRA
gives States omnibus authority to require additional requirements more
stringent than the Federal standards. In the case of low-activity
radioactive wastes, the States have done that and have established
regimes to fully protect the public health, our employees and the
environment.
These FUSRAP sites were used to support the nuclear activities of
the Department of Energy's (DOE) predecessor agencies. The sites were
used for research, processing and storage of uranium and thorium ores,
concentrates and residues. When these facilities were no longer needed,
they were decontaminated in accordance with guidelines acceptable at
that time. However, under the more protective standards that came into
existence in the 1970's, the Federal Government re-evaluated 31 sites
for further cleanup. The FUSRAP program was initiated in 1974 to
identify sites and to implement remediation.
Frustrated with the slow cleanup of FUSRAP sites in New York, New
Jersey, Connecticut and Missouri, the Fiscal Year 1998 Energy and Water
Appropriations Bill, transferred management authority over FUSRAP from
the Department of Energy to the Army Corps of Engineers. In an effort
to ensure that FUSRAP materials were managed in an environmentally
sound and cost effective manner, the Corps continued an effort
initiated by DOE to evaluate various management options including
considering alternatives to the single low-level repository for some of
the less radioactive FUSRAP wastes. These options included the use of
hazardous waste treatment and disposal facilities regulated under RCRA
(Subtitle C facilities).
The Nuclear Regulatory Commission (NRC) determined that some FUSRAP
materials generated prior to 1978 were not regulated by NRC and contain
levels of radioactivity low enough to be considered to be
``insignificant'' and therefore could be managed at Subtitle C
facilities. Certain Subtitle C landfills have been permitted for low-
activity wastes, and have traditionally taken oil exploration wastes
and geothermal wastes containing ``NORM,'' an acronym that stands for
Naturally Occurring Radioactive Materials (NORM) and that in practice
covers a very wide variety of low-activity wastes that have been safely
disposed of in RCRA Subtitle C facilities for decades. In fact, many of
these NORM wastes are higher in radioactivity than most of the FUSRAP
wastes.\1\
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\1\ Scale, a plaque-like mineral crusting, forms inside pipes and
other equipment which concentrates radioactivity when these companies
pump or otherwise process these natural resources (e.g., oil, natural
gas, geothermal energy, phosphate) scaling on pipes and other equipment
concentrates radioactivity. These wastes, often called NORM wastes,
have always been disposed at these Subtitle C facilities due to their
hazardous waste constituents (e.g., lead, arsenic, and benzene)
although they are not regulated under RCRA. Although such plaque can
reach levels of radioactivity of 100,000 picocuries per gram, these
facilities are permitted by their state to take only wastes up to 2,000
pCi/gm.
---------------------------------------------------------------------------
There has been some legal controversy on whether the by-product
material generated before 1978 should be treated differently than post
1978 wastes. The NRC, in response to a petition from a licensee, is
reviewing the legal issue and ETC has filed a brief detailing the
legislative history on those legal issues. Our review of the
legislative history points to clear congressional intent to limit the
scope of the 1978 uranium mill tailings legislation to particular
specified western remediationsites and to sites under current NRC
licenses. FUSRAP sites did not fit either requirement, but were then
being cleaned-up under other authorities by the chief administrative
sponsor of the 1978 legislation, the Department of Energy. A copy of
our brief is attached.
However, we cannot argue that there is any scientific rationale for
the 1978 date. The Atomic Energy Act, as well as RCRA, regulates
substances based on various policy considerations rather than risk.
Toluene provides a good example. Toluene in a solvent must go to a
Subtitle C facility for incineration or distillation recovery
treatment. Toluene in a home product like nail polish can go to a
municipal landfill, but toluene spilled at a remediationsite can often
be left in place. In all three instances the concentration of the
toluene may be the same but it is treated differently under different
policies. The Atomic Energy Act has similar distinctions that seem to
ignore science, but usually exist for some historic or policy reasons.
We believe that disposal and treatment of all wastes, radioactive or
hazardous should be handled based on their risk and reasonable
mismanagement scenarios. In that case, we believe, along with the NRC
and the Corps of Engineers that the science supports our position that
by-product wastes less than 2,000 picocuries per gram can safely be
disposed in specific Subtitle C facilities.
While most Subtitle C and Subtitle D landfills are precluded from
disposing of radioactive waste much higher than background, a select
few Subtitle C landfills have specific permit provisions and acceptance
criteria, which are enforced by State regulators, that allow for the
acceptance of low-activity wastes. Because these facilities were sited,
designed, constructed and permitted specifically with such wastes in
mind, these facilities can and do play an important role in the FUSRAP
clean-up program by providing an environmentally sound, cost effective
option for managing FUSRAP wastes at a time when such options are
limited.
Each of the facilities that have received FUSRAP wastes have RCRA
permit limits based on the concentration of radioactivity as expressed
in picocuries per gram or its equivalent. Those specific limits are
recognized in guidance of the Conference of Radiation Control Program
Directors (CRCPD), the national organization of State radiation control
directors. CRCPD policy since 1990 is that wastes above 2,000 pCi/g of
uranium, thorium, radium and other NORM radionuclides should be
disposed in a licensed low-level waste repository.\2\ Furthermore, we
understand that EPA, is an unrelated rulemaking, has completed a risk
analysis comparing licensed low-level NRC sites with RCRA Subtitle C
facilities. Using very conservative estimates and a 10,000-year model,
EPA analysis showed that Subtitle C facilities and NRC licensed low-
level waste disposal facilities are equally protective, at least for
the isotopes and the radiation levels allowed in our RCRA permits for
FUSRAP wastes. In 1994, EPA developed guidance to drinking water
providers entitled Suggested Guidelines for the Disposal of Drinking
Water Treatment Wastes Containing Radioactivity (EPA 1994). This
document recommended that radium-226 and radium-228, common isotopes
collected in drinking water filters and found at most FUSRAP sites,
should be disposed in proper Subtitle C landfills if the wastes
contained between 50 and 2,000 pCi/g of total radium.
---------------------------------------------------------------------------
\2\ The E-4 Committee Report entitled ``Report of the E-4 Committee
on NORM Contamination and Decontamination/Decommission--Report 3,''
prepared by the CRCPD, notes that since 1990, the policy of the CRCPD
was that wastes over 2,000 picocuries per gram should go to LLW sites.
The report specifically describes: (a) uranium and thorium as NORM
constituents in addition to the isotopes more common to oil, gas and
geothermal production wastes; (b) uranium milling/recovery as
``materials and activities known to be associated with elevated NORM
levels,''; (c) that ``slags, sludges and other loose NORM exceeding
2,000 picocuries per gram should go to a LLW disposal facility'' and
that ``loose material exhibiting between 30 picocuries per gram and
2,000 picocuries per gram should go to a diffuse NORM disposal site'',
and (d) that ``pipe scale'' and other types of mechanically and/or
chemically concentrated forms of NORM radiologic isotopes are still
defined simply as ``NORM''.
---------------------------------------------------------------------------
At FUSRAP sites, when waste shipments contain concentrations near
or above 2,000 pCi/g, they have been sent directly to a low-level
repository. However, wastes that are below this level and are
radiologically similar to radioactive wastes of natural gas and oil
exploration, production, and refining that have been sent to properly
permitted RCRA Subtitle C facilities. Since those facilities were
designed and permitted with such wastes in mind, and have for many
years been receiving wastes with concentrated levels of NORM, it is
entirely appropriate that RCRA Subtitle C facilities have and should
continue to play an important role in the safe management of low-
activity waste from FUSRAP sites.
As required by law, RCRA Subtitle C facilities operate under the
control of an extensive set of regulations promulgated by the
Environmental Protection Agency (EPA). These regulations establish
standards and specifications that address facility siting, design,
operational controls, personnel safety and training, environmental
monitoring and public participation.
As prescribed in regulations, these landfills are highly
engineered, and contain redundant detection and monitoring systems to
protect human health and the environment. Landfill disposal cells are
constructed with sophisticated liner and cap systems, which include
multiple layers of clay and synthetic liners supplemented by systems
for removal of precipitation and for leak detection. A major concern at
all landfills is the possible impact to groundwater. All Subtitle C
landfills have multiple leachate and leak protection systems that
monitor leachate to prevent any liquids from escaping the secure liner
system of the landfill. When leachate is collected, it is pumped to the
surface and treated. At the three RCRA Subtitle C sites that take
FUSRAP wastes, these engineering controls are in addition to the
environmental considerations that originally led to the siting of these
facilities--arid, desert-like conditions with very little annual
rainfall. In fact, at each of these sites, the evapotranspiration rate
exceeds annual rainfall levels in simple terms, this means that what
little rain does fall evaporates rapidly back into the atmosphere. As a
result, local groundwater is not at risk. Indeed, unlike typical
Subtitle C landfills, these three landfills rarely have leachate to
pump. As added precautions, specific environmental monitoring
requirements for air and groundwater are also included in the RCRA
regulations and are often enhanced and expanded by specific permits
requirements for each facility.
When a facility contemplates the acceptance of a new type of waste,
the regulators determine if existing safeguards in the permit are
adequate. If they are not, or if the regulatory agency requires
additional or redundant protections, the facility's permit is modified
under procedures set forth in existing statutes and regulations. The
protective systems in place at RCRA Subtitle C facilities meet and in
some cases exceed those present at NRC licensed facilities for disposal
of FUSRAP related wastes. In addition, State regulatory agencies have
broad omnibus authority under RCRA to modify permits to ensure
protection of public health and the environment beyond the requirements
of Federal law. States are not bashful in using this authority.
Despite the obvious similarity between RCRA Subtitle C and NRC
licensed facilities, the radiation activity levels currently being
received by Subtitle C facilities are generally orders of magnitude
less than are contemplated at NRC licensed facilities. One such RCRA
facility's acceptance criteria is nearly 30 percent below what the
Occupation Safety and Health Administration considers necessary to
require personal dosimeter monitoring, and below the level acceptable
for pregnant workers. Additional regulations, where applicable, include
Department of Transportation rules governing transportation and the
worker safety programs of OSHA.
Employees at RCRA Subtitle C facilities are fully protected by
specific safety, training and health monitoring standards established
by the Occupational Health and Safety Administration (OSHA) for
hazardous waste operations, as well as by permit requirements that are
specific to the waste types being managed. OSHA regulations include
specific standards for protecting workers from exposure to radiation
hazards, which are similar to standards established by the NRC for
facilities they license. All RCRA Subtitle C disposal facilities have
long provided extensive worker health and safety programs for
protection against exposure to toxic chemicals such as arsenic,
chromium, lead, benzene, pesticides, and asbestos that can pose a very
real threat of injury and disease, including cancer. However, with such
protections in place, the toxic chemicals that are contained in
``hazardous wastes'' regulated under RCRA are routinely managed in a
safe and secure manner every day at these RCRA Subtitle C facilities.
There has been much discussion about the long-term persistence of
radionuclides in the environment due to their long half-lives and the
time it takes for these chemicals to decay to a safe non-radioactive
State. It is important to note that much of the toxic hazardous waste
that is safely disposed of in RCRA Subtitle C facilities never decays
to a less toxic State. Wastes managed at RCRA Subtitle C facilities
such as lead, asbestos, arsenic, and even dioxins and PCBs will
essentially remain the same for tens of thousands of years. Thus, any
suggestion that RCRA Subtitle C facilities are not capable of safely
managing low-activity radioactive wastes, flies in the face of the fact
that these facilities have been designed, constructed, operated and
monitored to specifically to protect the population and the environment
from the most dangerous substances we know. Such suggestions ignore the
fundamental cornerstone of American environmental protection policy
that gave birth to RCRA and has been proven successful in the 26 years
since its enactment.
The Corps of Engineers has also been highly conservative and
cautious in its selection of disposal facilities for the FUSRAP wastes.
Our companies submitted multiple volumes of information and data to the
Corps of Engineers as part of a bid solicitation process. In addition,
teams of health physicists audited our facilities and found the
facilities' program for acceptance of FUSRAP waste to be both adequate
and protective. It has been our experience throughout this long process
that the Corps of Engineers has in place a very comprehensive program
to select and monitor potential disposal options for FUSRAP wastes.
It is our view that the Corps of Engineers, the regulatory agencies
and the companies involved have all worked within the existing
regulatory framework to offer a highly protective disposal option for
FUSRAP wastes, and that additional regulation of this waste would be
redundant and unnecessary. It is important to note that the acceptance
criteria for each facility accepting FUSRAP wastes are fully
enforceable by regulators. Noncompliance with these or any of the
facility's permit conditions could result in administrative or civil
action.
The development of multiple options for management of FUSRAP
material is good public policy. The availability of the Subtitle C
facility disposal option represents an environmentally sound, cost-
effective management option for some FUSRAP material at a time when
such options are limited. As NRC noted ``protection of the public
health and environment is improved with the availability of additional
waste disposal options resulting in the cleanup and release of these
sites for other uses.'' (Letter from NRC Greta Joy Dicus to
Representative Dingell, July 29, 1999) Waste disposal options that we
believe are at least equivalent in protecting the environment compared
to the Licensed low-level Waste site alternative.
In conclusion, ETC agrees with the view that the pre vs. post 1978
distinction of by-product material has no technical basis. In fact,
logic would suggest that all by-product waste below a certain level of
radioactivity should continue to be allowed to be disposed at RCRA
Subtitle C facilities with the proven capability and experience to
handle low-activity radioactive wastes.
ETC believes that is ample evidence supporting our position that
Subtitle C landfills are protective for disposal of by-product waste
from FUSRAP sites and that no statutory changes are necessary. However,
if statutory changes are contemplated, ETC believes that it should be
based on sound science and the actual risk associated with this low-
activity radioactive waste based on its radiation levels and potential
health threat.
Mr. Chairman, thank you for the opportunity to present our views to
your committee.
______
Supplemental Response of EnviroSafe Services of Idaho, Inc. and
Environmental Technology Council to Petitions Under 10 CFR Sec. 2.206--
Snake River Alliance
INTRODUCTION
The Snake River Alliance and Envirocare of Utah, Inc. have
petitioned the Nuclear Regulatory Commission (NRC) to require that low-
activity byproduct material from the Formerly Utilized Sites Remedial
Action Program (FUSRAP) be disposed only at an NRC-licensed facility.
See 65 Fed. Reg. 25,760 (May 3, 2000). Petitioner Envirocare of Utah,
Inc. currently operates the only such landfill facility. As the basis
for their request, petitioners allege that the NRC, under sections 81
and 84 of the Atomic Energy Act of 1954 (AEA), was given authority by
Congress to regulate all section 11e.(2) byproduct material regardless
of when it was generated, including tailings and wastes at FUSRAP sites
resulting from the Manhattan Project and the nation's early atomic
energy program (1940-1960) that were not subject to any AEA license
requirement.
Thus, the petitions seek reversal of the NRC's position that:
(1) the AEA, as amended by the Uranium Mill Tailings Radiation
Control Act of 1978 (UMTRCA), gives the NRC statutory authority only
over byproduct material from activities licensed on or after the
effective date of section 83; and
(2) Congress has expressly authorized the U.S. Army Corps of
Engineers (USACE) to dispose of byproduct material from FUSRAP sites
pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), which authorizes disposal at RCRA-permitted
landfills.
See Directors Decision Under 10 CFR 2.206 (DD-99-07), 64 Fed. Reg.
16,504 (April 5, 1999); letter from NRC Commissioner Greta Joy Dicus to
Congressman John D. Dingell dated July 29, 1999; letter from NRC
Chairman Shirley Ann Jackson dated May 3, 1999; letter from NRC Special
Counsel to USACE dated March 2, 1998.
Respondent EnviroSafe Services of Idaho, Inc. (ESII) submitted a
preliminary response to the petitions on April 10, 2000, indicating
that a more detailed response would be forthcoming. Petitioner
Envirocare then submitted a supplement to its petition on May 5, 2000.
After a more comprehensive review of the petitions and supplement, ESII
and the Environmental Technology Council, a national trade association
that represents the hazardous waste management industry, hereby submit
this joint response.
SUMMARY OF RESPONSE
The petitions are based on a flawed interpretation of the AEA and a
selective misreading of the legislative history of UMTRCA and related
appropriations acts of Congress. Sections 83 and 84 were added to the
AEA by UMTRCA in 1978. At that time, contrary to petitioners' claims,
Congress was fully aware that FUSRAP sites were being addressed by the
Department of Energy (DOE) under general AEA authority and the National
Environmental Policy Act. Therefore, Congress expressly decided to
exclude FUSRAP sites from the UMTRCA remedial program and the NRC's
licensing authority over 11e.(2) byproduct material. Instead, Congress
has exercised oversight and direction of FUSRAP primarily through the
appropriations process.
At no time has Congress ever indicated that the NRC has licensing
authority over byproduct material from FUSRAP sites, despite ample
opportunity to do so. In fact, Congress has specifically directed that
the FUSRAP program be implemented now by the Corps of Engineers, and
that the remediation activities be subject to the administrative,
procedural, and regulatory provisions of CERCLA and the National
Contingency Plan. As a result, byproduct material from FUSRAP sites may
properly be disposed, pursuant to the CERCLA offsite policy, at certain
landfills that have received permits under Subtitle C of the Resource
Conservation and Recovery Act (RCRA). These Subtitle C landfills have
permits that contain terms and conditions related to disposal of low-
activity radioactive wastes imposed by States under the ``omnibus''
authority of RCRA as necessary to fully protect human health and the
environment.
DISCUSSION OF LEGAL AUTHORITY
I. Petitioners Misconstrue the NRC's Licensing Authority by Ignoring
the Clear Intent of Congress in UMTRCA and Related
Appropriations Acts
Petitioners ask the NRC to read sections 81 and 84 of the AEA in
isolation, rather than properly construing the statute as a whole.\1\
As the NRC is aware, sections 81 and 84 are part of a statutory scheme
that includes section 83, and most importantly that reflects the intent
of Congress in UMTRCA to exclude the cleanup of tailings and wastes at
FUSRAP sites from the NRC's licensing authority.
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\1\ As the court warned in Kerr-McGee Chemical Corp. v. NRC, 903
F.2d 1(1990), a construction of the AEA may be ``plausible enough on
its face, [but] a statute must be read with an eye on its structure and
purpose as well as a dictionary.'' Id. at 2.
---------------------------------------------------------------------------
Specifically, Congress enacted AEA sections 83, 84 and amendments
to section 81 in the UMTRCA of 1978. The twin purposes of UMTRCA are
clearly stated in section 2(b). First, with respect to ``inactive mill
tailings sites,'' the Act provided for ``a program of assessment and
remedial action at such sites . . . in order to stabilize and control
such tailings in a safe and environmentally sound manner. . . .'' 42
U.S.C. 7901(b)(1) (emphasis added). Title I of the Act is this
remediation program for certain inactive sites. Second, Congress
enacted ``a program to regulate mill tailings during uranium or thorium
ore processing at active mill operations and after termination of such
operations. . . .'' 42 U.S.C. 7901(b)(2) (emphasis added). Title II of
the Act (sections 81-84) primarily regulates tailings from active mill
operations.
In enacting UMTRCA, Congress was fully aware that DOE was
addressing other inactive sites contaminated with tailings under the
FUSRAP program. Congress expressly decided not to include FUSRAP sites
under UMTRCA for good reasons. The House Committee on Interstate and
Foreign Commerce explained:
The committee understands that there are a number of
federally owned or controlled sites with [residual radioactive]
materials or tailings, such as the TVA site . . . and a DOE
site in Lewiston, N.Y., and some in New Jersey. The committee
wants to have these sites identified by the DOE and have data
concerning the health or environmental problems associated with
the sites and on what, if anything is being done to eliminate
such problems and when.
H.R. Rep. No. 1480 Part 2, 95th Cong., 2d Sess. 41 (Sept. 30, 1978),
reprinted in 1978 U.S. Code Cong. & Admin. News 7450, 7468 (emphasis
added). The ``TVA site'' refers to the Elza Gate Site, Oak Ridge,
Tennessee; the ``DOE site'' was the Niagara Falls Storage Site,
Lewiston, New York; and the ``New Jersey'' sites were the Kellex/
Pierport site, the Middlesex Municipal Landfill, and the New Brunswick
Site in New Jersey all of which were FUSRAP sites at the time Congress
enacted UMTRCA.
In hearings before the House Subcommittee on Energy and the
Environment, Mr. James L. Liverman, Acting Assistant Secretary, who was
responsible for the FUSRAP program at DOE, explained why the FUSRAP
sites were not included in the UMTRCA legislation. He said:
About 4 years ago, as a result of questions on the Middlesex
dump and on Palos Park in the Chicago area, Dr. Ray, then the
Chairman of the Atomic Energy Commission, and I determined that
we should take a relook at some 150 sites that had been turned
back over to the private sector to utilize. . . . We felt it
was important because we did not know and could not find the
records that revealed exactly the status of those sites. So we
started the detailed survey of them, and we are, perhaps, down
the road a long way now, but it is clear that there must be
something of the order of 30 out of the 150 or so that are
going to demand some kind of cleanup action.
We are not proposing that as a part of this bill because we
have not yet accurately determined what the cost may be, but I
do want to mention it because it is another thing that is
coming across the table, but it is not covered in this
legislation.
Hearings on H.R. 13382 Before the Subcomm. on Energy and the
Environment of the House Comm. on Interior and Insular Affairs, 95th
Cong., 2d Sess. 42 (June 26, 27 and July 10, 17, 1978) (emphasis
added). Like the ``Middlesex dump'' (Middlesex Municipal, NJ), the
Palos Park site in Illinois was also part of the FUSRAP program in
1978.\2\
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\2\ According to DOE, the Palos Park site was transferred out of
FUSRAP in 1990. See FUSRAP Management Requirements and Policies Manual,
U.S. DOE Oak Ridge Operations (May 6, 1997), page 1-5, attached as
Exhibit A hereto.
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In his testimony, Mr. Liverman further explained that FUSRAP sites:
were deliberately eliminated by the Office of Management and Budget
[from the Administration bill] because we needed to do a more detailed
study of those sites and get a clear estimate so we could bring to the
Congress a bill that made some sense. We will probably be back in the
next 9 months to a year, if we need additional authorization to clean
up, and that will depend upon the legal determination of who is
responsible. In any case, we will be back for the appropriations to
deal with those.
Id. at 49 (emphasis added).
In view of this testimony, Congress decided not to include the
FUSRAP sites within the scope of the UMTRCA legislation in 1978, and
instead to oversee DOE's cleanup efforts mainly through the
appropriations process. Congress focused the Title I remedial program
on ``certain'' sites that required a new Federal cleanup effort. H.R.
Rep. No. 1480 at 23. Congress limited Title I to the 22 locations
specifically listed in UMTRCA section 102. The Secretary's authority to
include other inactive sites that required cleanup was restricted to
sites added within 1 year (reduced from 5 years in the original bills).
Compare UMTRCA . 102 with H.R. 95-1480, H.R. Rep. No. 1480 at 2. This
was important in order to control the overall costs of the program,
because Congress had reached a difficult compromise on cost sharing
between the Federal Government and the States.\3\ Thus, Title I of
UMTRCA was limited to inactive mill tailings sites where ``there was
once Federal licensing of the operations, but, due to a loophole in the
law, the sites escaped control after operations ceased.'' H.R. Rep. No.
1480 (II) at 30; 1978 USCCAN 7457 (emphasis added).
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\3\ Congress was ``particularly concerned about the cost of this
program.'' H.R. Rep. 1480 (II) at 34; 1978 USCCAN 7461. The costs for
remedial actions, including both at the processing sites and any
locations and structures contaminated with tailings from the sites, was
to be borne 90 percent by the Federal government and 10 percent by the
States. UMTRCA Sec. 107. Costs of long-term maintenance and monitoring
of final disposal sites were to be borne by DOE. States were required
to assume the costs of purchasing the inactive processing sites and any
necessary new disposal sites. H.R. Rep. No. 95-1480 (I) at 14; 1978
USCCAN 7436.
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Of course, Congress recognized that FUSRAP inactive sites were not
``escap[ing] control'' due to a ``loophole'' in the AEA, but instead
were being addressed by DOE under both the AEA and additional authority
from Congress. DOE relied on its general authorities in the AEA to
protect public health and safety.\4\ DOE also sought to fulfill its
responsibilities under the National Environmental Policy Act to use all
practicable means to implement a cleanup program at FUSRAP sites to
assure environmental protection. 42 U.S.C. 4331(b).
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\4\ AEA Sec. 31a.(5), referenced in FUSRAP: Building Stakeholder
Partnerships to Achieve Effective Cleanup, DOE/EM-0233 (April 1995),
attached as Exhibit B hereto, and AEA Sec. Sec. 66 and 91(a)(3) (``The
Commission is authorized to--provide for safe storage, processing,
transportation, and disposal of hazardous waste (including radioactive
waste) resulting from nuclear materials production, weapons production,
and surveillance programs,'' referenced in ``Legal Opinion--Authority
to Decontaminate Middlesex Sampling Plant Site and Adjacent Private
Properties'' (June 19, 1978), attachment to FUSRAP: Management
Requirements and Policies Manual, Exhibit A hereto.
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Thus, at the time of the 1978 UMTRCA, Congress knew that FUSRAP
sites were not escaping control, and Congress could better oversee
DOE's implementation of FUSRAP through the appropriations process. As
Congress realized, the formerly utilized sites that DOE was already
investigating and remediating did not need to be included in the
comprehensive regulatory regime for the safe disposal and stabilization
of tailings under Title I. Nor did Congress need to include byproduct
material from FUSRAP sites under the NRC's licensing authority for
tailings resulting from active processing operations, since FUSRAP
materials were already subject to AEA, NEPA, and statutory direction
through appropriations acts.\5\
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\5\ For the same reasons, the Kerr-McGee case is not relevant to
the Commission's statutory interpretation here. As the petitioners
acknowledge, the Kerr-McGee facility was licensed by the NRC, and thus
the court's decision on the definition of section 11e.(2) byproduct
material from NRC-licensed facilities is not applicable to FUSRAP
sites. More importantly, the court's reasoning does not apply. The
court invalidated an NRC interpretation that ``recreate[d] the
regulatory gap that the UMTRCA was designed to eliminate and exclude[d]
from regulation for the protection of the public health some of the
radioactive tailings that Congress intended to bring within the
agency's authority.'' Kerr-McGee, 903 F.2d at 19. In this matter, as
discussed above, Congress did not consider FUSRAP sites to fall within
the ``regulatory gap'' that UMTRCA was intended to close, nor did
Congress intend to bring wastes from FUSRAP sites within the agency's
licensing authority. Thus, Kerr-McGee is not of concern.
---------------------------------------------------------------------------
Subsequent to the UMTRCA, Congress has continued to oversee the
FUSRAP in a manner that strongly confirms its prior legislative intent.
In appropriations acts since 1978, Congress has always considered the
FUSRAP as a separate and distinct program from the UMTRCA Title I
remedial program, often providing direction to DOE on its cleanup
responsibilities at FUSRAP sites. In the 1984 Energy and Water
Development Appropriations Act (EWDAA), Congress specifically
authorized DOE to conduct decontamination at four FUSRAP sites
(Colonie, NY; Latty Avenue Properties, MO; and the Wayne and Maywood
sites, NJ). Pub. L. 98-50. The 1985 EWDAA directed DOE to perform
necessary response action at the St. Louis Airport site, and to develop
the property as a disposal site for the waste from the response action
activities conducted at vicinity properties and the Latty Avenue
Properties. Pub. L. 98-360.
More recently, in the 1998 EWDAA, Congress included statutory
language transferring the funding and responsibility for administering
the FUSRAP from DOE to the Corps of Engineers. Pub. L. No. 105-62, 111
Stat. 1326 (1997). Congress further directed the Corps of Engineers to
review the baseline cost, scope and schedule for each of the FUSRAP
sites, ``and determine what actions can be taken to reduce costs and
accelerate cleanup activities.'' H.R. Rep. No. 190, 105th Cong., 1st
Sess. 66 (July 21, 1997). In the 1999 and 2000 EWDAA, Congress directed
that ``response actions by the [USACOE] under this [FUSRAP] program
shall be subject to the administrative, procedural, and regulatory
provisions of the Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. 9601 et seq.), and the National Oil and
Hazardous Substances Pollution Contingency Plan.'' Pub. L. No. 105-245,
112 Stat. 1838, 1843 (1998).
Through all of these appropriations acts, Congress had an ample
opportunity to indicate that FUSRAP sites were covered under UMTRCA, or
that the NRC should exercise license authority over tailings and wastes
from FUSRAP sites. Congress has not done so, because there was no need
to do so.
Thus, petitioner Envirocare's claim that Congress never
``specifically focused on FUSRAP'' in the legislative history of
UMTRCA, Pet. at 6-9, is simply wrong. Petitioners' central argument
that Congress intended for NRC to regulate all byproduct material from
all inactive sites is also clearly wrong. The truth is that Congress
did focus on the inactive tailings sites in the FUSRAP and specifically
decided not to regulate them under UMTRCA. Petitioners' entire case is
based on the faulty premise that Congress was unaware of the DOE
remedial program for FUSRAP sites, contrary to the extensive
legislative history set forth above.
II. Because Envirocare Has Misrepresented the Legislative History, the
Petitions are Based on an Erroneous Interpretation of Sections
81 and 84
The provisions of AEA sections 81, 83 and 84, as amended by UMTRCA,
must be construed in view of the clear congressional intent in the
legislative history. Kerr-McGee, 903 F.2d at 2. As the Commission may
know, should its statutory interpretation be subject to judicial
review, the court will first determine whether Congress directly
addressed the matter. ``If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.'' Chevron
U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984) (referred to as the
Chevron Step I analysis). To discern congressional intent, the court
must ``stud[y] the statutory text, structure, and history'' of the
statute as a whole, and not each section in isolation. Ohio v. DOI, 880
F.2d 432, 441 (D.C. Cir. 1989). However, even if the court concludes
that Congress's intent is not plain, the court must still defer to the
agency's construction of the statute so long as it is reasonable. 467
U.S. at 844 (Chevron Step II). As set forth above, we believe
Congress's intent that NRC's license authority does not extend to
FUSRAP materials is clear. Even if a court should find the statute
ambiguous, however, the NRC has adopted a reasonable construction of
its license authority that should be upheld. In contrast, petitioners
ask the Commission to adopt an interpretation of sections 81 and 84 in
isolation that ignores the basic structure of UMTRCA and Congress's
purposeful design.
At the outset, petitioners agree that section 83 gives the NRC
licensing authority only over section 11e.(2) byproduct material that
results from activities at sites licensed on or after the effective
date. Why is the NRC's authority limited in this way? Congress intended
the AEA amendments in Title II of UMTRCA to primarily focus on
preventing future problems at active mill operations, and to supplement
the DOE's cleanup authority at the 22 inactive sites under Title I.
H.R. Rep. No. 1480 (I) at 13; Part II at 29. Consistent with this
congressional intent, section 84 is not a broad grant of unlimited
authority over ``any'' byproduct material from any site, as petitioners
claim, but is limited by the purposes of UMTRCA. Specifically, section
84a. provides:
The Commission shall insure that the management of any byproduct
material, as defined in section 11e.(2), is carried out in such manner
as: (1) the Commission deems appropriate to protect the public health
and safety and the environment from radiological and nonradiological
hazards associated with the processing and with the possession and
transfer of such material . . . ; (2) conforms with applicable general
standards promulgated by [EPA] under section 275, and; (3) conforms to
general requirements . . . comparable to requirements applicable to the
possession, transfer, and disposal of similar hazardous material
regulated by [EPA] under the Solid Waste Disposal Act. . . .
In their petitions to the Commission, petitioners argue that the
phrase ``any byproduct material'' applies literally to any tailings or
wastes from any processing sites, including pre-1978 material from
FUSRAP sites. However, Congress used limiting statutory language that
refutes petitioners' interpretation. In section 84, Congress authorized
the NRC to insure protective management of ``any byproduct material, as
defined in section 11e.(2).'' Why did Congress include this limiting
language, rather than referring to ``byproduct material'' as generally
defined in section 11.e? The statutory provision on its face does not
refer to literally ``any byproduct material,'' but only to tailings and
wastes that Congress added in subsection (2) of section 11e. by
amendment in UMTRCA. Congress added subsection (2) for the express
purpose of supplementing the NRC's authority with respect to tailings
from NRC-licensed active sites and Title I inactive sites, while at the
same time clearly intending not to include FUSRAP sites, as discussed
above. Thus, section 84 does not extend to byproduct materials from
FUSRAP sites that Congress expressly decided to exclude from UMTRCA,
and that are not subject to either section 83 or Title I.
Consistent with this interpretation, section 84a.(2) requires
conformance with ``applicable'' general standards promulgated by EPA
under section 275. In turn, section 275 applies only to ``residual
radioactive materials . . . located at inactive uranium mill tailings
sites and depository sites for such materials selected by [DOE]
pursuant to title I of the [UMTRCA]'' and ``sites at which ores are
processed primarily for their source material content or which are used
for the disposal of such byproduct material.'' 42 U.S.C. 2022(a) and
(b) (emphasis added). Thus, the statutory text taken as a whole
reinforces the interpretation that section 84 applies only to byproduct
material from Title I and NRC-licensed sites.
The House committee also confirmed this interpretation in its
section-by-section analysis of UMTRCA. The committee explained that
section 84 ``authorizes the Commission to promulgate, implement and
enforce regulations governing permanent Federal custody of uranium mill
tailings disposal sites and governing the activities of the [DOE] under
title I of the act.'' H.R. Rep. No. 1480 (I) at 21.\6\ Section 83(a)(2)
requires permanent Federal custody of tailings disposal sites only for
byproduct material from NRC-licensed active sites. Likewise, Title I of
the Act is limited to the 22 listed sites, and does not include FUSRAP
sites. See also H.R. Rep. No. 1480(I) at 16, which summarizes the
provisions of section 84 as follows: ``In establishing requirements or
promulgating regulations for licensing or for oversight of the
Department's remedial activities, the Commission must set all standards
and requirements.'' Congress's reference to ``licensing'' is clearly to
new section 83 related to tailings at active processing sites, and the
reference to DOE's ``remedial activities'' is obviously to the Title I
program. Thus, Congress intended section 84 to be limited to these two
purposes.
---------------------------------------------------------------------------
\6\ Envirocare misrepresents this legislative history in its
petition. Citing the specific committee explanation quoted in the text
above, Envirocare asserts that section 84 ``extend[s] to all section
11e.(2) tailings, including, as the applicable legislative history
makes clear, tailings governed by the provisions of Title I of the
Act.'' Pet. at 5 (bold emphasis added). As this response makes clear,
however, Congress did no such thing. Congress did not extend section 84
to all tailings, ``including'' those from Title I sites, but rather
limited section 84 to tailings from Title I sites and NRC-licensed
active operations.
---------------------------------------------------------------------------
As a result, petitioners' argument that section 84 is ``phrased in
comprehensive, or catch-all, terms'' is simply wrong. Section 84
applies to section 11e.(2) byproduct material that is subject to the
NRC's licensing authority on or after the effective date of section 83
and to inactive sites covered under Title I, but clearly not to FUSRAP
sites.
For the same reasons, section 81 also does not prohibit the
management and disposal of byproduct material from FUSRAP sites.
Section 81, as originally enacted in the AEA of 1954, was intended to
restrict the domestic distribution of byproduct material, as that term
is now defined in section 11e.(1), for research, commercial, and
agricultural purposes, except as otherwise authorized. In the UMTRCA of
1978, Congress amended section 81 to include the highlighted language:
No person may transfer or receive in interstate commerce,
manufacture, produce, transfer, acquire, own, possess, import,
or export any byproduct material, except to the extent
authorized by this section, section 82 or section 84.
The language ``except to the extent authorized by . . . section
84'' implicates the congressional intent to exclude FUSRAP materials.
As discussed above, section 84 applies to 11e.(2) byproduct material
from Title I sites and NRC-licensed operations, and not to FUSRAP
sites. Thus, section 81 must be construed consistent with Congress's
overall intent in UMTRCA to allow DOE, and now the Corps, to address
cleanup of byproduct material from FUSRAP sites. By excluding such
byproduct material from the scope of sections 83 and 84, Congress by
necessary implication authorized under section 81 the possession and
transfer of such FUSRAP materials for cleanup and disposal. This
construction of sections 81, 83 and 84 is consistent with the structure
of UMTRCA and with clear congressional intent.
For all of the foregoing reasons, petitioners' flawed
interpretation of sections 81 and 84 should be rejected as contrary to
the clear intent of Congress and to a reasonable construction of the
statute. The Commission should reaffirm its position that the AEA, as
amended by UMTRCA, gives it licensing authority only over byproduct
material from activities licensed on or after the effective date of
section 83.
III. The Disposal of FUSRAP Materials At Certain Subtitle C Landfills
Is In Accordance With Stringent Standards Under Environmental
Laws
Envirocare is wrong, and irresponsible, in its claims that
byproduct materials from FUSRAP sites are being disposed at Subtitle C
landfills ``without health and safety protections.'' Envirocare Pet. at
2. As described above, Congress directed the Corps of Engineers to
clean up FUSRAP sites in accordance with CERCLA and the National
Contingency Plan. Under CERCLA, EPA has defined radionuclides as a
hazardous substance. 40 CFR 302.4 and Appendix B. As a result, the
Corps of Engineers has very extensive authority under CERCLA to ensure
cleanup of radioactive-contaminated wastes, such as byproduct material,
to standards that protect public health and safety. In this regard, the
Commission's standards in 10 CFR Part 40, Appendix A, may be considered
``applicable or relevant and appropriate requirements'' (ARARs) under
CERCLA for FUSRAP sites, further ensuring protective standards.
Moreover, the CERCLA ``offsite policy'' expressly authorizes the
removal of hazardous substances to landfill facilities, provided the
facility ``is operating in compliance with section 3004 and 3005 of the
Solid Waste Disposal Act [i.e., RCRA] . . . and all applicable State
requirements.'' CERCLA 121(d)(3), 42 U.S.C. 9821(d)(3). To ensure
protection, the CERCLA offsite policy further provides that hazardous
substances ``may be transferred to a land disposal facility'' only if
the disposal unit is not releasing any waste constituent into the
groundwater, surface water or soil. Id. Thus, CERCLA not only ensures
health and safety protection, but authorizes offsite disposal of
hazardous substances in secure RCRA-permitted landfills.
As the NRC has acknowledged, RCRA landfills are designed and
operated with redundant protective systems equal to or better than the
NRC-licensed facility: The Environmental Protection Agency (EPA) has an
extensive set of regulations in 40 CFR 260 through 272 for the
management of hazardous wastes. RCRA disposal facilities rely in part
on a system of liners and leachate detection and collection systems to
prevent releases of hazardous materials to the environment. RCRA
regulations for disposal also address monitoring and inspection, site
selection, and other detailed requirements. Most, if not all, of these
controls would also help to protect public health, safety, and the
environmental from radioactive byproduct material. Commissioner Dicus
letter dated July 29, 1999 (emphasis added). Indeed, some RCRA
landfills have been authorized to accept naturally occurring
radioactive material (NORM) from oil exploration and production that
pose no greater risk than the FUSRAP materials. The NRC has stated
that: ``Based on our knowledge of RCRA requirements, we believe that
both RCRA landfills and NRC-regulated and licensed disposal facilities
are protective.'' Id. (emphasis added). In fact, the NRC's protection
requirements in 10 CFR Part 40, Appendix A, are based upon the RCRA
standards in 40 CFR Part 264. Thus, the NRC itself has already directly
refuted Envirocare's false claims.
Envirocare attempts to argue that the AEA, as amended by UMTRCA,
somehow preempts EPA and the States from requiring Subtitle C landfills
to comply with conditions in RCRA permits that ensure health and safety
protection from disposal of radioactive waste. Envirocare Pet. at 4
n.2, 8-9; Supp. to Pet. This argument is absurd, and would have the
improbable effect of nullifying many regulations and permits already
issued by EPA and States. RCRA does define the term ``solid waste'' to
exclude ``source, special nuclear, or byproduct material,'' 42 U.S.C.
6903(28), and then defines ``hazardous waste'' to mean ``a solid waste,
or combination of solid wastes.'' 42 U.S.C. 6903(5). Thus, hazardous
wastes are a subset of solid wastes, and byproduct material is thereby
excluded from the definition of hazardous waste.
However, RCRA section 3005 includes a provision that is broader
than Subtitle C coverage of hazardous wastes. Generally, section 3005
governs permits issued by EPA and authorized States to facilities that
treat, store or dispose of hazardous wastes. While most of section 3005
therefore concerns hazardous waste, there is a provision in section
3005(c) referred to as the ``omnibus'' provision which is broader. The
RCRA omnibus authority provides simply that: Each permit issued under
this section shall contain such terms and conditions as the
Administrator (or the State) determines necessary to protect human
health and the environment. 42 U.S.C. 6925(c)(3).
EPA and the States use this omnibus authority to include additional
terms and conditions in RCRA permits, based on the facility's permit
application and the administrative record of the permit proceeding,
that are necessary to ensure health and safety protection. Pursuant to
this omnibus provision, certain hazardous waste landfill facilities
have RCRA permits with conditions that authorize the disposal of low-
activity radioactive wastes in accordance with stringent health and
safety standards. These RCRA permit terms apply to waste materials that
have less than a specified level of radioactivity, and do not
specifically regulate ``byproduct material'' as defined in the AEA, so
the question of Federal preemption is not implicated. Moreover, the
States are authorized to impose omnibus conditions in RCRA permits
pursuant to delegated Federal authority under the RCRA statute, further
refuting Envirocare's preemption argument. In short, disposal at RCRA-
permitted landfills of low-activity radioactive wastes from FUSRAP
sites is stringently regulated, and Envirocare's claims are factually
untrue and irresponsible.
Petitioners' arguments that the Commission's interpretation of its
licensing authority allows ``wastes involving potential hazards to the
public to be exempted from the jurisdiction of both the NRC and the
EPA,'' Summary of Pet. at 2, is a strawman only. FUSRAP wastes are
fully subject to EPA and State permits and standards under RCRA and
other environmental laws.
IV. The Commission Should Determine That the NRC Licensing Exemption
for DOE FUSRAP Activities Also Applies to the Corps of
Engineers
There is also a sound argument that the Atomic Energy Act exempts
DOE, and now by extension the Corps of Engineers, from NRC licensing
for FUSRAP cleanup activity. The AEA definition of the term ``person''
includes a ``Government agency other than the Commission.'' 42 U.S.C.
2014(s) (emphasis added). The ``Commission'' referred to in this
definition of ``person'' is the former Atomic Energy Commission (AEC).
42 U.S.C. 2014(f). The AEC was abolished and its functions transferred
to the NRC and the Administrator of the Energy Research and Development
Administration (ERDA). 42 U.S.C. 5814, 5841. Thereafter, the ERDA was
abolished and its functions transferred to the Secretary of Energy. 42
U.S.C. 7151(a), 7293. DOE is self-regulating while conducting FUSRAP
pursuant to CERCLA remediation.
When Congress directed the Corps of Engineers to administer the
FUSRAP, it did not relieve DOE of its overall responsibility for these
sites. The Corps of Engineers has taken over administration of the
FUSRAP, but the DOE, as the AEC successor agency responsible for the
FUSRAP, has ultimate responsibility. Since the DOE, as the AEC
successor agency, is not considered a ``person'' subject to NRC license
authority, the Corps of Engineers which stepped into the shoes of DOE
to administer FUSRAP cleanups should be covered by the same exemption.
This is the statutory interpretation that best complies with Congress's
intent that transfer of FUSRAP to the Corps of Engineers would ``reduce
costs and accelerate cleanup activities.'' H.R. Rep. No. 190, 105th
Cong., 1st Sess. 66 (July 21, 1997). Imposing licensing requirements to
which DOE was not subject would increase costs and delay cleanups.
In directing the Corps of Engineers to administer the FUSRAP,
Congress did not express an intent that the cleanup and disposal of
FUSRAP wastes be subject to AEA licensing requirements. The Conference
Report that accompanied Pub. L. No. 105-62 indicated that Congress
expected a seamless transition of FUSRAP from DOE to the Corps. H.R.
Conf. Rep. No. 271, 105th Cong., 1st Sess 7 (1997). Congress expected
the agencies ``to make every effort to ensure that this transition goes
smoothly, that execution of the program is maintained in accordance
with current schedules, and that overall performance is improved.'' Id.
A requirement that Subtitle C landfills with permits that authorize
disposal of low-activity radioactive wastes must now also obtain NRC
licenses to receive FUSRAP wastes would disrupt the transition, delay
the current schedules, and fail to improve performance. This would be
contrary to Congress's expressed intent.
The Corps of Engineers previously raised a similar argument before
the Commission in response to a petition filed by the Natural Resources
Defense Council to require NRC licensing of cleanup activities
conducted at FUSRAP sites. See Director's Decision Under 10 CFR .
2.206, 64 Fed. Reg. 16,504 (April 5, 1999). While the DOE did not agree
with the Corps' position, DOE did acknowledge its continuing
responsibilities for FUSRAP, and it deferred on the question to the
Commission. 65 Fed. Reg. at 16,506. The NRC staff decided not to reach
a conclusion in the previous proceeding. Id.
DOE and the Corps of Engineers have now entered into a Memorandum
of Understanding (MOU) regarding the FUSRAP dated March 17, 1999. See
Exhibit C hereto. While the MOU states that ``DOE does not have
regulatory responsibility or control over the FUSRAP activities''
conducted by the Corps, it does make clear that DOE has continuing
responsibilities for FUSRAP, such as ``long-term surveillance,
operation and maintenance, including monitoring and enforcement of any
institutional controls which have been imposed on a site or vicinity
properties.'' MOU Art. III, C.1.e. As a result, NRC staff can now find
that DOE and the Corps have addressed their respective
responsibilities, and that it is appropriate to conclude that the AEA
also exempts the disposal of FUSRAP wastes from NRC licensing because
Congress intended the Corps to fill the shoes of DOE, an agency exempt
from NRC regulatory requirements for the FUSRAP. This additional basis
on which the Commission should deny the petitions will further support
a final decision that may be subject to judicial review.
CONCLUSION
For all the foregoing reasons, EnviroSafe Services of Idaho, Inc.
and the Environmental Technology Council respectfully urge that the
relief requested in the petitions be denied. The Commission should
reaffirm its position that its AEA license authority applies to section
11(e)(2) byproduct material from active processing operations, and does
not extend to tailings and wastes from FUSRAP sites. As the Commission
is aware, Congress has directed the Corp of Engineers to ``reduce costs
and accelerate cleanup activities'' at FUSRAP sites, 1998 EWDAA, and
the Corps is doing so, and protecting the public health and safety, by
utilizing certain RCRA-
permitted landfills for disposal of FUSRAP materials. The NRC has not
been authorized or funded by Congress to exercise license authority for
disposal of tailings from FUSRAP sites.
______
Responses by Scott Slesinger to Additional Questions From Senator Smith
Question 1. Please explain the RCRA Subtitle C permitting process
and compare that process to the NRC licensing process for low-level
radioactive waste disposal.
Response. The permit process for a Subtitle C landfill is outlined
in RCRA section 3005(a). The public comment procedures are in section
7004. The regulations detailing the requirements are codified in 40 CFR
124. The regulations follow the general rules of all federal
environmental laws. Anyone who desires a Subtitle C permit is required
to apply; their applications must be complete and meet all the
requirements laid out in the regulations concerning the technical
construction of the facility and the suitability of the geology. The
public must have a full and fair opportunity to participate at every
stage in the process. Appeals to the Courts are also available. A
detailed outline of the procedure is listed in Appendix A
If the facility wants to amend its permit to accept a different
type of waste, the public is notified and may request a hearing or may
comment on the amendment. The major difference with the NRC program is
in the requirements for construction. RCRA is very prescriptive. For
instance, although in arid areas a liner system may be unnecessary, EPA
still requires the double liner system. NRC uses a more results
oriented approach. If the site does not need a double liner because of
the lack of significant leachate and the risk modeling shows it is
unnecessary, that redundant requirement is waived. Another important
comparison is that RCRA landfills are designed with both synthetic and
geological barrier systems (eg. clay). NRC licensed landfills used for
low-activity waste are designed with only geological barrier systems.
Another difference is public perception. Although RCRA landfills
are not usually seen as a positive development for a community, over 20
have been licensed in the United States. However, because of the
public's concern with any wastes that are radioactive, siting such
facilities is much more difficult because of public opposition. This is
obvious with the problems with the low-level Compact inability to site
facilities, and the controversy over Yucca Mountain. This has lead to
difficulties in disposing of critical radioactive wastes associated
with standard radiation cancer treatment as well as X-rays.
Response.
I. PROCEDURES FOR ISSUANCE, REVOCATION AND RENEWAL OF RCRA PERMITS
A. Statute
RCRA Sec. 3005(a), 42 U.S.C. Sec. 6925(a), provides: [T]he
Administrator shall promulgate regulations requiring each person owning
or operating and existing facility or planning to construct a new
facility for the treatment, storage, or disposal of hazardous waste
identified or listed under this subchapter to have a permit issued
pursuant to this section. . . .
B. Regulations (Excerpts)
40 CFR Sec. 124.1 Purpose and scope. (a) This part contains EPA
procedures for issuing, modifying, revoking and reissuing, or
terminating all RCRA . . . permits . . . .
40 CFR Sec. 124.6 Draft permits. (a) Once an application is
complete, the Director shall tentatively decide whether to prepare a
draft permit . . . or to deny the application. . . .
(d) If the Director decides to prepare a draft permit, he or she
shall prepare a draft permit that contains the following information:
All conditions under . . . 270.30 and 270.32 (RCRA);
All compliance schedules under . . . 270.33 (RCRA);
All monitoring requirements under . . 270.31 (RCRA);
and
LFor: (i) RCRA permits, standards for treatment,
storage, and/or disposal and other permit conditions under
Sec. 270.30 . . . .
All draft permits prepared by EPA under this section shall
be accompanied by a statement of basis (Sec. 124.7) or fact sheet
(Sec. 124.8), and shall be based on the administrative record
(Sec. 124.9), publicly noticed (Sec. 124.10) and made available for
public comment (Sec. 124.11). The Regional Administrator shall give
notice of opportunity for a public hearing (Sec. 124.12), issue a final
decision (Sec. 124.15) and respond to comments (Sec. 124.17). For RCRA
. . . permits, an appeal may be taken under Sec. 124.19 . . . .
II. OPPORTUNITIES FOR PUBLIC HEARING AND PUBLIC COMMENTS
A. Statute
RCRA Sec. 7004(b), 42 U.S.C. Sec. 6974(b), provides: Before the
issuing of a permit to any person with respect to any facility for the
treatment, storage, or disposal of hazardous wastes under section 6925
of this title, the Administrator shall:
cause to be published in major local newspapers of
general circulation and broadcast over local radio stations
notice of the agency's intention to issue such permit; and
transmit in writing notice of the agency's intention
to issue such permit to each unit of local government having
jurisdiction over the area in which such facility is proposed
to be located and to each State agency having any authority
under State law with respect to the construction or operation
of such facility.
If within 45 days the Administrator receives written notice of
opposition to the agency's intention to issue such permit and a request
for a hearing, or if the Administrator determines on his own
initiative, he shall hold an informal public hearing (including an
opportunity for presentation of written and oral views) on whether he
should issue a permit for the proposed facility. Whenever possible the
Administrator shall schedule such hearing at a location convenient to
the nearest population center to such proposed facility and give notice
in the aforementioned manner of the date, time, and subject matter of
such hearing. No State program which provides for the issuance of
permits referred to in this paragraph may be authorized by the
Administrator under section 6926 of this title unless the program
provides for the notice and hearing required by this paragraph.
B. Regulations (Excerpts)
40 CFR Sec. 124.10 Public notice of permit actions and public
comment period. (b) For RCRA permits only, public notice shall allow at
least 45 days for public comment.
(2) (i) For major permits . . . publication of a notice in a daily
or weekly newspaper within the area affected by the facility or
activity; (ii) For all RCRA permits, publication of a notice in a
dailyor weekly major local newspaper of general circulation and
broadcast over local radio stations.
40 CFR Sec. 124.11 Public comments and requests for public
hearings. During the public comment period provided under Sec. 124.10,
any interested person may submit written comments on the draft permit .
. . and may request a public hearing, if no hearing has already been
scheduled. All comments shall be considered in making the final
decision and shall be answered as provided in Sec. 124.17.
40 CFR Sec. 124.12 Public hearings. (a)(1) The Director shall hold
a public hearing whenever he or she finds, on the basis of requests, a
significant degree of public interest in a draft permit(s); . . .
(2) The Director may also hold a public hearing at his or her
discretion . . . .
(3) For RCRA permits only, (i) the Director shall hold a public
hearing whenever he or she receives written notice of opposition to a
draft permit and a request for a hearing within 45 days of public
notice under Sec. 124.10(b)(1)1; (ii) whenever possible the Director
shall schedule a hearing under this section at a location convenient to
the nearest population center to the proposed facility; . . . .
(4)-(6) [conduct of hearing].
40 CFR Sec. 124.13 Obligation to raise issues and provide
information during the public comment period. All persons, including
applicants, who believe any condition of a draft permit is
inappropriate or that the Director's tentative decision to deny an
application, terminate a permit, or prepare a draft permit is
inappropriate, must raise all reasonably ascertainable issues and
submit all reasonably available arguments supporting their position by
the close of the public comment period (including any public hearing)
under Sec. 124.10. . . .
40 CFR Sec. 124.15 Issuance and effective date of permit. (a) After
the close of the public comment period under Sec. 124.10 on a draft
permit, the Regional Administrator shall issue a final permit decision
(or a decision to deny a permit for the active life of a RCRA hazardous
waste management facility or under Sec. 270.29). The Regional
Administrator shall notify the applicant and each person who has
submitted written comments or requested notice of the final permit
decision. This notice shall include reference to the procedures for
appealing a decision on a RCRA . . . permit . . . .
III. APPEAL PROCEDURES TO ADMINISTRATOR
A. Statute
RCRA Sec. 3005(c), 42 U.S.C. Sec. 6924(c), provides: Upon a
determination by the Administrator (or a State, if applicable), of
compliance by a facility for which a permit is applied for under this
section with the requirements of this section and section 6924 of this
title, the Administrator (or State) shall issue a permit for such
facilities.
B. Regulations (Excerpts)
40 CFR Sec. 124.19 Appeal of RCRA . . . permits. (a) Within 30 days
after a RCRA . . . final permit decision . . . has been issued under
Sec. 124.15, any person who filed comments on that draft permit or
participated in the public hearing may petition the Environmental
Appeals Board to review any condition of the permit decision. . . .
(c) Within a reasonable time following the filing of the petition
for review, the Environmental Appeals Board shall issue an order
granting or denying the petition for review. . . .
(e) A petition to the Environmental Appeals Board under paragraph
(a) of this section is, under 5 U.S.C. 704, a prerequisite to the
seeking of judicial review of the final agency action.
(f) For purposes of judicial review under the appropriate Act,
final agency action occurs when a final RCRA . . . permit is issued or
denied by EPA and agency review procedures are exhausted. A final
permit decision shall be issued by the Regional Administrator:
(i) When the Environmental Appeals Board issues notice to the
parties that review has been denied;
(ii) When the Environmental Appeals Board issues a decision on
themerits of the appeal and the decision does not include a remand of
the proceedings; or
(iii) Upon the completion of remand proceedings if the proceedings
are remanded, unless the Environmental Appeals Board's remand order
specifically provides that appeal of the remand decision will be
required to exhaust administrative remedies.
IV. APPEAL PROCEDURES TO THE U.S. COURT OF APPEALS
RCRA Sec. 7006(b), 42 U.S.C. 6976(b), provides: Review of the
Administrator's action . . . in issuing, denying, modifying, or
revoking any permit under section 6925 of this title . . . may be had
by any interested person in the Circuit Court of Appeals of the United
States for the Federal judicial district in which such person resides
or transacts such business upon application by such person. Any such
application shall be madewithin ninety days from the date of such
issuance, denial, modification, revocation, grant, or withdrawal, or
after such date only if such application is based solely on grounds
which arose after such ninetieth day. Action of the Administrator with
respect to which review could have been obtained under this subsection
shall not be subject to judicial review in civil or criminal
proceedings for enforcement. Such review shall be in accordance with
sections 701 through 706 of Title 5.
Question 2. Please respond to the contention that FUSRAP waste
disposed at the Buttonwillow facility is ``more dangerous to move'' now
that is mixed with other hazardous waste.
Response. The statement that the waste is``more dangerous to move''
is a mischaracterization of the facts. The waste is identifiable and
could be removed, but doing so would necessarily result in some
incremental, additional worker exposure to both radioactive and
hazardous substances, while providing no public health and safety or
environmental benefit. Removing the waste would follow engineering
protocols but would require the movement of over 300,000 tons of soil
and treated waste, including the FUSRAP wastes and the other waste
disposed on top of it. The material is now safely disposed of and
extensive analysis and monitoring by the State of California post-
disposal concludes that there is no short- or long-term risk to the
public or the environment from this material. There is no scientific,
safety or environmental reason to move this waste.
Question 3. Does the FUSRAP waste that was disposed of at
Buttonwillow pose a greater risk to the public than NORM material
currently being disposed of at that same facility? Why or Why not?
Response. The wastes going to Buttonwillow pose no greater risk
than the NORM material currently being disposed of at the same
facility. The average level of radiation in NORM wastes from the oil
industry is generally higher than the waste from the FUSRAP sites. The
effect of radioactivity on cells and DNA is dependent on the dosage,
not whether the source of the radioactivity is NORM, TeNORM or NARM
wastes.
Question 4. How does the 1,000 year cap at NRC facilities compare
to the required closure and post closure management under RCRA?
Response. The major differences between the NRC and RCRA caps are
based on the different philosophies of the two programs. RCRA believes
in technical standards that are all but inviolate. NRC has a more
performanced-based approach that allows more flexibility based on
geography and geology.
RCRA caps are intended to encapsulate the waste forever. The 30-
year versus the 1,000 years is an apples and oranges comparison. The
thirty-years in RCRA refers to active post closure management. Under
RCRA, after a facility is closed, financial assurance must be in place
to pay for continuous monitoring for at least 30 years. Above the
landfill, a cap must be constructed in line with RCRA regulations that
require a synthetic and geological (eg. clay) barrier to assure that no
precipitation gets to the waste. For thirty years the groundwater is
monitored under the waste. It is expected that within that period, the
leachate will stop. If it continues, it is expected the facility will
be required to continue to monitor and make whatever changes are needed
to entomb the waste in a dry environment. 40 CFR 264.310(2). The goal
is that the waste is encapsulated forever.
NRC facilities also need a cap to avoid water causing leachate.
However, NRC's post closure policy is to monitor only once a year.
However without liners, NRC assumes that the radioactive waste will
leach over time. NRC believes that if low-level radioactive wastes are
in an arid area landfill, there is no harm if the wastes leach out
because they will be so diffused they would not be a risk. Under
modeling NRC has conducted low-level facilities will theoretically be
protective for 1,000 years or more. (Modeling beyond 1,000 is generally
considered very speculative).
EPA modeling of hazardous wastes using the current RCRA cap and
other regulations, even those mixed with low-activity radioactive
wastes, shows that such waste will remain safe for longer than 1,000
years even if the cap is severely compromised.
Question 5. How does worker safety programs at RCRA facilities that
have accepted FUSRAP material compare with that of NRC licensed
facilities?
Response. All three facilities have extensive radiation monitoring,
detection and worker protection programs in place.
Waste Control Specialists is fully licensed by the state
of Texas to treat, process and store all classifications of low-level
radioactive waste, as well as low-activity FUSRAP-type wastes, and has
in place radiation protection programs identical to or exceeding those
of Envirocare.
Safety-Kleen and EnviroSafe have in place significant
radiation protection programs. For example:
The Safety-Kleen and EnviroSafe programs exceed OSHA 29
CFR 1096 ``Ionizing Radiation'' protection standards and include
specific procedures to isolate, control, and monitor NORM wastes, even
though the radiation levels for the permitted waste with 2,000 pCi/g or
less are too low to qualify the operation as a``Radiation Area'' under
29 CFR 1910.1096(d)(3)(ii), (i.e. the disposal area does not have ``the
potential to generate a 1-hr dose in excess of 5 millirem, or in any 5
consecutive days a dose inexcess of 100 millirem.'')
Worker protection elements include: personal dosimeter and
medical surveillance of all field personnel, including a comprehensive
annual physical; strict adherence to ALARA (as low as reasonable
achievable); mandatory use of respirators to protect against the
inhalation of alpha-particles (low-energy, mass bearing particles);
NORM training with annual updates; monitoring of all NORM-related
receiving and disposal operations using 3 different types of hand-held
radiation monitoring instruments.
Question 6. Is the public notified of each individual shipment to
your members facilities?
Response. The public is notified when the permit is issued to what
types of wastes the facility is allowed to accept. Since Subtitle C
landfills can receive hundreds of trucks a day, it is neither practical
nor useful to notify the community of each shipment. However, RCRA
facilities are required to submit annual reports which provide in
detail the type and source of wastes received for the calendar year.
RCRA also has public notice provisions, and an opportunity for a
hearing, whenever a permit is modified that could lead to different
wastes coming to a facility. In this case, the original permits allowed
for the acceptance of low-activity radioactive wastes. These sites
received wastes from the oil exploration industry that are generally
higher in radioactivity than the wastes from the FUSRAP sites.
______
Statement of David E. Adelman, J.D., Ph.D. Staff Attorney, Nuclear
Program Natural Resources Defense Council
Chairman Smith and Members of the Committee, thank you for giving
me the opportunity to testify today on the U.S. Army Corps of Engineers
(``USACE'') implementation of the Formerly Utilized Sites Remedial
Action Program (``FUSRAP''). My name is David Adelman, and I am a staff
attorney and scientist with the Natural Resources Defense Council
(``NRDC''), which is a national non-profit membership environmental
organization with offices in Washington, DC, New York City, San
Francisco and Los Angeles. NRDC has a nationwide membership of more
than 400,000 individuals. 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 Department
of Energy (``DOE'') and its predecessor agencies and the commercial
nuclear sector.
USACE's decision to dispose of radioactive wastes generated by
FUSRAP actions at unlicensed facilities in California and Idaho, its
failure to obtain a license from the NRC for its cleanup actions, and
NRC's decision to permit these activities are contrary to basic common
sense. For complex technical and historical reasons, Congress
established two separate and distinct regulatory systems, one governing
hazardous materials and the other radioactive elements. USACE's actions
violate the basic principles of these distinct regulatory regimes and
threaten human health and the environment.
The Resources Conservation Recovery Act (``RCRA'') explicitly
excludes radioactive contaminants from the list of chemicals it
regulates, 42 U.S.C. 6003(27), while the Atomic Energy Act (``AEA'')
was promulgated solely to regulate radioactive materials--and preempts
State regulatory authority over radioactive materials. The two
regulatory systems have evolved separately to address the regulatory
issues unique to managing each of these categories of chemicals. For
example, in the case of the AEA, the long-lived nature (in some cases
many thousands of years) of and radiation emissions from radioactive
elements have required that specialized regulations be developed.
Similarly, while Superfund applies to radioactive materials, until now
all of the cleanup actions involving radioactive wastes have been
undertaken by the Department of Energy or overseen by NRC, both of
which have the authority, experience, and regulations in place to
manage radioactive materials properly.
USACE and NRC are propounding a completely irrational reading of
the AEA solely to save money on radioactive waste disposal. This
interpretation of the AEA permits disposal of radioactive materials at
hazardous waste facilities based entirely on whether they were
generated prior to 1978 at a facility that was not licensed when (or
after) the Uranium Mill Tailings Radiation Control Act was passed in
November 1978. There is no technical basis to make this distinction,
and no relevant difference in the radioactive constituents between the
pre-and post-1978 byproduct wastes generated by FUSRAP. Moreover, the
cost savings now could be more than offset in the future by cleanup and
stabilization actions that may be required if radioactive contaminants
are found to be leaking from unlicensed facilities.
Given the distinct regulatory schemes for hazardous and radioactive
contaminants, NRC's and the USACE's interpretation of the AEA makes no
sense from a policy perspective and sets a dangerous precedent, namely,
that it is permissible for government agencies to shop for the cheapest
form of waste disposal and to evade proper regulatory oversight,
regardless of the regulatory requirements and technical considerations.
USACE must not be permitted to dispose radioactive wastes at unlicensed
facilities that are not designed, maintained, or monitored for their
disposal and, for the analogous reasons, should be required to obtain a
license from the NRC for its FUSRAP cleanup actions.
I. IMPLEMENTATION OF FUSRAP CLEANUP ACTIONS
FUSRAP provides for the clean-up and disposal of radioactive
materials at various industrial facilities around the country that once
performed work as part of the Manhattan Project and other early
activities of the Atomic Energy Commission. DOE began implementation of
FUSRAP in 1974 when it was recognized that a number of industrial sites
associated with nuclear weapons and energy programs during the 1940's,
1950's, and 1960's contained substantial levels of radioactive
contamination (primarily uranium and thorium).
According to DOE, a total of 46 sites have been identified for
cleanup under FUSRAP. By 1997, cleanup had been completed at 25 of
these sites. There are thus 21 remaining sites to be cleaned up under
the program, located in Connecticut, Illinois, Maryland, Massachusetts,
Missouri, New Jersey, New York and Ohio. The cleanup work under FUSRAP
consists primarily of the treatment or removal of soil and other
substances containing radioactive ``byproduct material,'' as defined in
the AEA, 42 U.S.C. 2014(e). USACE estimates that about 2 million cubic
yards of radioactive materials will require offsite disposal from
FUSRAP sites.
A. Congress' Transfer of Responsibility for the FUSRAP Program to USACE
On October 13, 1997, Congress transferred administration of FUSRAP
from DOE to USACE in the 1998 Energy and Water Development
Appropriations Act, Pub. L. No. 105-62. Subsequently, in the Energy and
Water Development Appropriations Act of 1999, Congress affirmed USACE's
responsibility for and provided funding for FUSRAP. At this time,
Congress also clarified two issues: (1) USACE's implementation of
FUSRAP was ``subject to the administrative, procedural, and regulatory
provisions'' of CERCLA and the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 C.F.R. Part 300; and (2) ``. . . except
as stated herein, these provisions do not alter, curtail or limit the
authorities, functions or responsibilities of other agencies under the
Atomic Energy Act. . . .''
USACE, however, does not have authority to handle the radioactive
materials involved in implementing FUSRAP. According to a letter to the
Secretaries of Energy and Defense from Senator Pete V. Domenici and
Representative Joseph M. McDade, the Chairmen of the Senate and House
Subcommittees on Energy and Water Development, the transfer of budget
authority over FUSRAP to USACE was not intended to affect DOE's
regulatory authority over the program. Instead, Congress apparently
expected ``that basic underlying authorities for the program [would]
remain unaltered and the responsibility of DOE.'' \1\ There is nothing
in the Act to suggest a contrary result; the text does not grant USACE
anything beyond budget authority over FUSRAP.
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\1\ Letter dated November 6, 1997, from Senator Pete V. Domenici
and Representative Joseph M. McDade to Secretary of Energy Federico
Pena and Secretary of Defense William S. Cohen.
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DOE maintains, however, that ``[t]he [FUSRAP] transfer legislation
did not make the Corps a DOE contractor, or otherwise subject the
Corps' activities to the control or direction of DOE.'' \2\ Further,
while DOE defers to NRC to determine whether USACE is required to
obtain an NRC license, the Department has stated that NRC ``should
evaluate the licensability of the Corps' activities in the same manner
as it would evaluate the activities of any other ``person'' within the
meaning of the Atomic Energy Act.''
---------------------------------------------------------------------------
\2\ Letter dated January 14, 1999, from William J. Dennison,
Assistant General Counsel for Environment at DOE, to John T. Greeves,
Office of Waste Management at NRC.
---------------------------------------------------------------------------
DOE has also questioned whether USACE could rely solely on CERCLA
authority to avoid NRC oversight. Specifically, CERCLA exempts most
cleanup activities from Federal, State, or local licensing
requirements, 42 U.S.C. 9621(e); although, as NRC and USACE concede,
this exemption applies only to activities at the cleanup site (i.e.,
not offsite shipments or disposal). Despite the unique challenges posed
by environmental cleanups involving radioactive materials and USACE's
lack of regulatory authority--or regulations--to handle radioactive
materials, both NRC and USACE have invoked the CERCLA exemption to
shield USACE from the AEA requirement that USACE obtain an NRC license.
B. The Risks and Problems Created by the Absence of Proper Regulatory
Oversight
This is a profound problem for two reasons. First, the NRC has as
its fundamental goal the safety and security of the nation's nuclear
activities. The same cannot be said of USACE. Its institutional mission
is, by design, focused on other matters. Certainly it must be
acknowledged that the army's record of handling nuclear and other
hazardous wastes is not good.\3\ The dangers posed by the handling of
radioactive waste counsel strongly in favor of NRC licensing of the
FUSRAP program as administered by USACE. The numerous issues implicated
by USACE's unregulated handling of FUSRAP wastes, including worker
protection, cleanup standards, property rights, and long-term
liability, can only benefit from NRC oversight.
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\3\ These fears have been borne out at one of the sites in North
Tonawanda, New York, where USACE has proposed a cleanup standard that
is 10 times weaker than that proposed by DOE when it was implementing
the cleanup. To reduce costs, USACE is relying on substantially relaxed
cleanup standards.
---------------------------------------------------------------------------
Second, and more fundamentally, the laws governing the utilization
and cleanup of nuclear materials are simply too important to allow them
to be ignored. In recognition of the highly technical nature of
radioactive materials and of the extreme dangers they pose, Congress
reposed responsibility for the administration of those laws in the NRC
and, to a lesser extent, DOE. In short, an environmental cleanup action
involving radioactive materials is not your typical Superfund project,
particularly where, as here, the contaminants remain hazardous for many
thousands of years.
The Linde FUSRAP site in Tonawanda, New York, demonstrates why NRC
oversight is necessary. USACE's cleanup plan for the site will leave
radioactive contamination in place that is 6 times, and possibly as
high as 30 times, higher than any other comparable cleanup in the
United States and at least 10 times the cleanup level previously
proposed for the site by the Department of Energy. USACE has also been
severely criticized by the Environmental Protection Agency (``EPA'')
and State authorities for its practice at the Linde site of diluting
radioactively contaminated debris with uncontaminated materials in an
effort to avoid having to dispose of it in a properly licensed
facility.\4\ Moreover, these actions along with USACE's policy of
disposing radioactive wastes in unlicensed facilities located in
California and Idaho have allegedly prompted EPA to launch a criminal
investigation.
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\4\ See e.g. the attached letter from Paul J. Merges, Director of
the Bureau of Radiation & Hazardous Site Management at the New York
State Department of Environmental Conservation, to Major Kally L.
Eastman, Acting Commander of U.S. Army Engineering Buffalo District
(``Attachment A'').
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Congress has commanded that, with very few exceptions, no agencies
other than DOE be permitted to handle nuclear materials except in
accordance with a license issued by the NRC. To now allow USACE to
handle the radioactive materials associated with FUSRAP cleanups
without licensing and oversight by the NRC flouts congressional intent.
As part of the transfer of authority over FUSRAP to USACE, Congress
should require that it first obtain a license from the NRC.
II. OFF-SITE DISPOSAL OF FUSRAP RADIOACTIVE WASTES AT UNLICENSED
FACILITIES
1. The Unlicensed Disposal Sites in California and Idaho
USACE's disposal of radioactive waste at unlicensed facilities is
illegal and contrary to basic regulatory and health physics principles.
USACE has dispose of radioactive wastes at two unlicensed facilities,
the Safety-Kleen facility in Buttonwillow, California, and EnviroSafe
in Grand View, Idaho. The illegal disposal of wastes at both of these
sites has generated substantial public, State, and congressional
attention. More than 2,200 tons, or about 83 rail cars, of radioactive
waste from a site in northern New York State were disposed at the
Safety-Kleen facility, which is permitted under Part C of the Resources
Conservation Recovery Act (``RCRA''), 42 U.S.C. 6901 et seq., but
neither designed nor permitted to receive such radioactive wastes. In
June 1999, EnviroSafe won a $400 million contract to dispose 400,000-
500,000 cubic yards of radioactively contaminated wastes; it has
already received approximately 150,000 tons of radioactive wastes. In
addition, USACE inadvertently sent another 86 tons of radioactive
wastes to a non-hazardous, solid-waste landfill in Ohio.
The Safety-Kleen site potentially threatens critical groundwater
resources. The Safety-Kleen facility is located above three aquifers
and does not provide protective measures comparable even to those
planned for the proposed Ward Valley radioactive waste dump--which has
been the focus of broad public opposition in California. Equally
importantly, neither the Safety-Kleen nor the EnviroSafe facilities
have proper monitoring equipment for radionuclides or for protecting
their workers from exposure to radiation, and there has not been any
kind of public process--which is integral to NRC radioactive disposal
facility siting requirements--to obtain acceptance from the local
communities.
2. Disposal of Radioactive Wastes at Unlicensed Facilities is Neither
Legally nor Technically Justifiable
Although USACE and the NRC concede that offsite disposal of
radioactive waste is not exempt from NRC's licensing requirements, they
claim that radioactive waste from certain FUSRAP sites (12 out of the
remaining 21) is not covered by the AEA and need not be disposed at an
NRC-licensed facility. However, precisely the same types of byproduct
material removed from the remaining 9 FUSRAP sites are covered by the
AEA, according to NRC and USACE, and must be disposed at NRC-licensed
facilities.
The Atomic Energy Act mandates disposal of radioactive ``byproduct
material'' at a licensed facility. 42 U.S.C. 2112, 2114 (prohibiting
transfer or receipt of byproduct material at an unlicensed
facility).\5\ Accordingly, the NRC has long had a policy requiring
disposal of byproduct material only at licensed facilities. This policy
is based on the goal of protecting public health and the environment.
USACE's disposal of byproduct material from certain FUSRAP sites at
unlicensed facilities therefore violates the AEA and is contrary to
long-established NRC policy.
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\5\ In enacting the Uranium Mill tailings Radiation Control Act
(``UMTRCA'') of 1978, Congress expanded the definition of byproduct
material to include ``the tailings or wastes produced by the extraction
or concentration of uranium or thorium from any ore primarily for its
source material content.'' 42 U.S.C. Sec. 2014(e)(2).
---------------------------------------------------------------------------
The NRC and USACE acknowledge that radioactive wastes generated at
the FUSRAP sites are ``byproduct materials'' as that term is defined in
Section 11(e)(2) of the Atomic Energy Act, 42 U.S.C. 2014(e)(2).\6\
However, they claim that because certain byproduct material was
generated prior to 1978, the year in which UMTRCA was passed, and
resulted from activities that were not licensed by the NRC in or after
1978, it is not covered by the AEA and need not be disposed at an NRC-
licensed facility. Under this reasoning, such wastes could be disposed
at a regular landfill if they do not contain hazardous constituents.
Accordingly, the factor governing whether FUSRAP radioactive wastes
must be disposed at an NRC-licensed facility is solely whether it was
originally generated prior to the passage of UMTRCA.
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\6\ The AEA also prohibits the transfer or receipt in interstate
commerce of any byproduct material unless licensed by the NRC or
otherwise authorized under AEA Sections 82 and 84, 42 U.S.C.
Sec. Sec. 2112, 2114.
---------------------------------------------------------------------------
NRC's and USACE's assertion that UMTRCA does not apply to pre-1978
wastes is contrary to established law. In the Findings and Purpose
section of UMTRCA, Congress concludes that there are ``potential and
significant radiation hazard[s] to the public'' from ``mill tailings
located at active and inactive mill operations.'' 42 U.S.C. 7901(a). In
this section, Congress further states that ``[t]he purposes of this Act
are to provide--(1) in cooperation with the interested States, Indian
tribes, and the persons who own or control inactive mill tailings
sites, a program of assessment and remedial action at such sites . . .
and (2) a program to regulate mill tailings during uranium or thorium
ore processing at active mill operations. . . .'' 42 U.S.C. 7901(b).
Congress' intent in enacting UMTRCA is clear from this language: UMTRCA
applies to byproduct material generated at sites closed prior to
passage of the Act in 1978.\7\
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\7\ Furthermore, the NRC has failed to acknowledge that Sections 81
and 84 of the AEA, 42 U.S.C. Sec. Sec. 2112, 2114, impose additional
requirements on the NRC beyond those imposed by Section 2113. Most
notably, Section 2113 requies the NRC to ``insure that the management
of any byproduct material, as defined in section 11(e)(2), is carried
out in such manner as . . . the Commission deems appropriate to protect
the public health and safety. . . .'' This further affirms that fact
that the Commissions required to regulate the disposal of FUSRAP mill
tailings.
---------------------------------------------------------------------------
The leading case interpreting UMTRCA, Kerr-McGee v. NRC, 903 F.2d 1
(D.C. Cir. 1990), affirms the plain meaning of the statute. In Kerr-
McGee, the Court held that ``. . . the definition of `byproduct
material' . . . adopted by Congress was designed to extend the NRC's
regulatory authority over all wastes resulting from the extraction or
concentration of source materials in the course of the nuclear fuel
cycle.'' Kerr-McGee, 902 F.2d at 7 (emphasis in original). Moreover, it
is implicit in the Kerr-McGee holding that UMTRCA applies retroactively
to wastes generated prior to 1978, as the byproduct material in
question was generated from 1931 until 1973, when the Kerr-McGee mill
closed. This finding is further borne out in the Court's finding that
the UMTRCA legislative history evinces two purposes:
[F]irst, to close the gap in NRC regulatory jurisdiction over the
nuclear fuel cycle by subjecting uranium and thorium mill tailings to
the NRC's licensing authority; and second, to provide a comprehensive
regulatory regime for the safe disposal and stabilization of the
tailings. Title I of UMTRCA provided a specific remedial program for 20
designated inactive uranium milling sites. Title II established a
comprehensive remedial program for mill tailings at all other sites.
Kerr-McGee, 902 F.2d at 3. In concluding, the Court found that the
new definition of byproduct material in UMTRCA ``serves as the trigger
for determining what materials are to be subject to the remedial
program established by Title II''--the date of generation is not a
relevant factor.\8\ Id.
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\8\ Indeed, the EPA has established precedent that wastes generated
prior to the enactment of legal authority become subject to a subsequent
statute if they are exhumed during cleanup after passage of such
statute. 57 Fed. Reg. 37298.
---------------------------------------------------------------------------
Equally important, States are preempted from exercising regulatory
authority over byproduct material pursuant to the AEA, unless granted
authority to do so by the NRC. Pacific Gas & Electric Co. v. State
Energy Resources Conservation and Development Commission 461 U.S. 190
207-212 (1983); EPA v. Colorado PIRG, 261 U.S. 1, 7, 11-12, 19-22
(1976); 10 C.F.R. Part 8.4. Thus, states that are not NRC agreement
States, are directly preempted from exercising regulatory authority
over any byproduct material. On the other hand, if a State is an
agreement State, it does not have authority to regulate byproduct
materials for the same reason NRC has erroneously concluded that it
cannot regulate pre-1978 byproduct materials; its authority is
derivative of the NRC's.
At the same time, EPA regulatory authority over radioactive wastes
is precluded under RCRA, the only other potential source of regulatory
oversight.\9\ Accordingly, under the NRC's and USACE's reading of
UMTRCA, Congress intended the absurd result that no government entity
would have the authority to regulate pre-1978 byproduct materials
despite it not differing in any meaningful way from post-1978 byproduct
materials. It is inconceivable that Congress intended such a perverse
result, namely, effectively precluding the regulation of radioactive
materials it has found pose significant threats to human health and the
environment.
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\9\ See, e.g., letter from Robert Perciasepe, Assistant
Administrator in the Office of Air and Radiation at the EPA, to the
Honorable Clint Stennett, Minority Leader, Idaho State Senate
(Attachment B).
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USACE's decision to dispose of radioactive wastes in unlicensed
facilities and NRC's decision to sanction it runs counter to basic
common sense and technical reasoning. There is no basis to distinguish
pre-1978 byproduct wastes from those generated after 1978, whether
legally or scientifically. Indeed, in their own briefings, NRC staff
have acknowledged as much by referencing portions of the Kerr-McGee
opinion holding that UMTRCA applies to ``all'' byproduct material. See
NRC's Staff's Brief and Evidence on Issues raised by The State of Utah
(January 6, 1993).
As the Conference of Radiation Control Program Directors has found,
it makes no sense from a technical perspective to base regulation of
radioactive waste on when the material was generated. The Conference
expressed particular concern that:
There is no consistent waste characterization method utilized by
USACE. This is important because characterization of the waste dictates
other factors such as worker protection procedures, cleanup standards,
and disposal options.
Moreover, radioactive waste disposal practices at FUSRAP sites to
date have involved disposal at facilities licensed by NRC or by
agreement States or DOE-operated sites. The Conference formally
recommended that the NRC reverse its determination that it lacks
jurisdiction over pre-1978 byproduct wastes because it would result in
it being ``unregulated altogether.'' \10\
---------------------------------------------------------------------------
\10\ Resolution Relating to Regulation of 11(e)(2) Radioactive
Material, and the Transfer of the Formerly Utilized Sites Remedial
Action Program (FUSRAP) to the U.S. Army Corps of Engineers (May 20,
1998) (``Attachment C'').
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Disposal of radioactive wastes in unlicensed facilities raises
important environment risks because these facilities are not designed
to handle long-lived radioactive materials. The risks include threats
to local groundwater (monitoring doesn't include radionuclides);
inadequate or inappropriate worker health and safety regulations
(inhalation standards for radionuclides are of particular concern); and
failure to provide for long-term institutional controls to prevent
future intrusions that could release contaminants from the site long
after it has closed--this is a particular concern where long-lived
radioactive materials, such as uranium and thorium, are involved. (See
Attachment B at 2, 4) These deficiencies have important implications
for DOE, which may become responsible for monitoring sites requiring
institutional controls to protect the public and environment against
releases of radioactive materials in the long-term. 42 U.S.C. 10171(b);
see also 62 Fed. Reg. 39070 (July 21, 1997).
Disposing of radioactive wastes at a hazardous waste facility, or a
solid-waste landfill, also circumvents proper public oversight. Because
RCRA permitting does not contemplate disposal of radioactive wastes
from industrial facilities, no prior notice is provided to the public
that radioactive byproduct materials could be disposed at such
facilities. The public therefore has no opportunity to assess
radioactive waste disposal at RCRA facilities. This was a central issue
for the Safety-Kleen site in California, particularly following the
heated debate over the proposed siting of a low-level radioactive waste
facility in Ward Valley. By avoiding any opportunity for public or
California State review and comment, the disposal of radioactive wastes
at the Safety-Kleen facility circumvented NRC-mandated public
participation that applies to all properly licensed radioactive waste
disposal facilities (see Attachment B at 4).
III. CONCLUSION
Although it is NRDC's position that the AEA clearly and
unequivocally applies to all radioactive byproduct material, regardless
of when it was generated, recent NRC and USACE actions demonstrate that
further clarification by Congress of the applicability of NRC
regulatory authority is necessary to safeguard the public and
environment. Congressional intervention is of particular importance in
this case because opportunities for court actions are limited under
both Superfund, which limits Federal court jurisdiction until after a
cleanup action completed, 42 U.S.C. 9613(h), and the AEA, which does
not afford citizens or States the right to bring citizen suits. NRDC
requests that Congress: (1) add language to the AEA further clarifying
that UMTRCA applies to both pre-and post-1978 radioactive byproduct
material; and (2) amend Superfund by requiring that, other than the
DOE, government agencies or private entities undertaking Superfund
cleanup actions involving radioactive materials obtain a license from
the NRC.
______
Attachment A
New York State Department of Environmental Conservation,
Albany, NY, April 30, 1999.
Maj. Kally L. Eastman, Acting Commander,
U.S. Army Engineering District, Buffalo District,
Buffalo, NY.
Re: Proposed Plan for the Linde Site, Tonawanda, New York (March 1999)
Dear Maj. Eastman: The New York State Department of Environmental
Conservation has reviewed the United States Army Corps of Engineers'
(USACE) Proposed Plan for the Linde site, Tonawanda, New York.
Pursuant to CERCLA, the Atomic Energy Act, and the New York State
Environmental Conservation Law, we do not concur with the proposed plan
as currently written. The major problems include the following: the
proposed uranium cleanup criterion of 600 pCi/g is unacceptable; the
Corps has not demonstrated that the 15 pCi/g radium-226 criterion is
justified; the proposed plan does not include the use of an Independent
Verification Contractor; and the methods the Corps plans to use to
determine compliance with the cleanup criteria are not defined. Our
specific comments are enclosed.
If you have any questions or need further information, please
contact John Mitchell of this Bureau at (518) 457-2225.
Sincerely,
Paul J. Merges, PhD., Director,
Bureau of Radiation & Hazardous Site Mgt.,
Division of Solid & Hazardous Materials.
__________
New York State Department of Environmental Conservation, Division of
Solid & Hazardous Materials, Bureau of Radiation & Hazardous Site
Management
Comments on the Proposed Plan for the Linde Site, Tonawanda, New York
(March 1999)
CLEANUP CRITERIA
1. This Department's Cleanup Guideline for Soils Contaminated with
Radioactive Materials, Division of Solid & Hazardous Materials
Technical Administrative Guidance Memorandum 4003 (``TAGM 4003'')
should be in the category of ``To Be Considered'' when setting cleanup
criteria for sites in New York State. It is one of the documents by
which this Department judges the adequacy of proposed cleanup criteria.
2. One principle of TAGM 4003 is that radiation doses are to be
assessed under, ``reasonable scenarios for current and plausible future
uses of the land.'' We agree with the Corps that the reasonable
scenario for current use of the Linde site is industrial or commercial,
but we cannot agree that industrial is the only plausible use of the
land in the future. As we stated in our March 10, 1999 letter to Mr.
Raymond Pylon on the Draft Technical Memorandum Linde Site Radiological
Assessment, Tonawanda, New York, we do not agree with the proposed
future use of the Linde Site as discussed in that document, or in the
proposed plan. The fact that the site has been industrial for the past
60 years does not assure that it will not be put to residential use
sometime in the future. Pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), a reasonable
maximum exposure scenario should be assumed and cleanup goals set
accordingly to ensure protectiveness, using best professional
judgement. We believe that future uses of this property over the next
1,000 years could easily be of the residential nature (DOE had
conservatively assumed a resident subsistent farmer scenario).
Therefore, the USACE should model and discuss this scenario. Otherwise,
it is difficult to conclude that the proposed alternative will meet the
long-term effectiveness criterion of 30 CFR 300.430(e)(()(iii)(C).
3. This Department questions why the USACE decided to perform
another radiological risk assessment at all, since the United States
Department of Energy (DOE) had already performed one, which established
a uranium cleanup level of 60 picocuries per gram (PCi/g). That
criterion met two important objectives, doses calculated under the
residential scenario (conservatively modeled as the resident farmer
scenario) and the application of the ALARA (As Low As Reasonably
Achievable) principle. All of the soil remedial efforts at the Linde
Site performed to date have been undertaken to meet this cleanup
criterion. The Corps has not provided a justification for
decontaminating the rest of the site to a less protective standard.
4. The proposed plan includes a cleanup criterion for total uranium
(natural uranium) of 600 pCi/g, which is about 286 pCi/g of U-238, 301
pCi/g of U-234, and 13 pCi/g of U-235. Uranium and thorium in
concentrations grater than 0.05 percent by weight are subject to
licensing under the Federal Atomic Energy Act, 10 CFR 40, and Agreement
State laws and regulations. For U-238, a concentration of 0.05 percent
by weight is approximately equal to an activity concentration of 167
pCi/g. We cannot agree to a cleanup criterion that could theoretically
result in leaving on site radioactive material that would require a
radioactive materials license. Such a cleanup criterion is not
consistent with the goals of FUSRAP, nor is it acceptable to this
Department. While the U.S. Nuclear Regulatory Commission is currently
declining to regulate the 11(e)2 by-product material on this site, to
our knowledge, it has not yet exempted any source material that the
Corps may leave behind for the landowner to possess.
5. This Department would like to point out to the USACE that a
cleanup criterion is not a below regulatory concern level. Licensed
radioactive material is always licensed material unless it is disposed
of under the radioactive materials laws and regulations. We are unaware
of any USACE regulation authorizing licensed radioactive material to be
disposed of without consideration of its licensed status. While the
Linde wastes are not under radioactive material license, the
``substantive requirements'' provision of CERCLA would impose similar
constraints. For example, this Department might not approve soils
contaminated with hazardous components and containing radiouclides
below a cleanup criterion being disposed of at RCRA C disposal facility
in New York State. This fact is important to all parties involved in
cleanups which result in higher than background levels of residual
radioactive materials remaining onsite.
6. The preferred alternative presented in the proposed plan
includes meeting the radium-226 standards in Subpart B of 40 CFR Part
192 (i.e., 5 pCi/g in the top 15 cm of soil and 15 pCi/g in any 15-cm
layer below the top 15 cm). However, the proposed plan does not
demonstrate that the 15 pCi/g criterion is appropriate. On February 12,
1998, the U.S. Environmental Protection Agency issued directive No.
9200.4-25, Use of Soil Cleanup Criteria in 40 CFR Part 192 as
Remediation Goals for CERCLA sites. In that document, the EPA states,
If the contaminants at a site are the same (i.e., radium-226,
radium-228, and/or thorium) and the distribution of
contamination is similar to that existing at Title I sites as
described in 40 CFR Part 192 (i.e., little subsurface
contamination from 5 to 30 pCi/g), then the 15 pCi/g standard
is a potentially relevant and appropriate requirement for the
site. . . . If the radioactive contamination at the site is
unlike that at the uranium mill tailings sites regulated under
40 CFR 192, in that significant subsurface contamination exists
at a level between 5 pCi/g to 30 pCi/g, the use of the 15 pCi/g
standard is not generally appropriate.
Before the Corp concludes that the 15 pCi/g criterion is
appropriate at the Linde site, it should revise the Proposed Plan to
address the EPA directives and to demonstrate that the conditions
described in the directive are met at that site.
GROUNDWATER IMPACTS
7. In our March 10, 1999 letter to Mr. Pylon, we informed the USACE
that we would like additional time to review the information presented
on the impacts of the deep well injections. In the interim, our
geologist has reviewed the data. At this time we do not agree with the
conclusion that ``. . . groundwater at the Linde Site does not require
remediation,'' as expressed in the last paragraph of section 2.1,
Description of the Impacted Property, on page 6. We recommend that a
limited extension of the monitoring within the contact zone aquifer be
performed which would be designed (1) to provide a reasonable
definition on the extent of the zone of disposal and the zone of
contamination and (2) to characterize the nature of contamination
within these two zones. Despite the statements made in the reports that
the levels of contamination seen to date, and the levels of activity in
the injected wastewater itself, were consistently below regulatory
standards, given the tremendous volume of material injected we need to
be vigilant to insure that there are not some areas that contain
unexpectedly high levels of activity.
INSTITUTIONAL CONTROL
8. This Department would like to see documentation that the United
States Department of Energy (DOE) has concurred with the proposed
cleanup level and the use of institutional control for this site. Since
the USACE turns over to the DOE the responsibility for long term
monitoring 2 years after the completion of brown fielded sites cleanup,
we would like to make sure DOE agrees with this approach and recognizes
its future obligation. When exposure controls are used, restrictions by
USACE, and later DOE, should be employed to ensure that the controls
remain in place, that they remain protective, and that they are
effective in preventing exposure for as long as the radionuclides
present at the site remain hazardous. Since the Linde site
radionuclides have very long half-lives, DOE's acceptance of this role
and potential liability should be obtained and documentation of it
provided to us.
9. In addition, the plan should state how institutional controls
will be applied. Specifically, will the USACE require Praxair, Inc. to
place a deed notation or deed restriction on their deed in order to
assure institutional control? If so, USACE should identify what law and
regulation authorizes them to do so. The USACE should state whether it
is prepared to address issues regarding the taking of property, which
could result from requiring institutional control and thereby reducing
the value of the property and limiting the landowner's ability to use
it.
VICINITY PROPERTIES
10. Also, since the Town of Tonawanda landfill is a vicinity
property to this site, it should be added to the listing on page 4, the
first paragraph of section 2, Site Background, and some discussion to
the fact that this site will be addressed under a separate record of
decision at a later date should be added.
INDEPENDENT VERIFICATION CONTRACTOR
The use of independent verification contractors is a routine
practice by other Federal radiological agencies, such as the Department
of Energy and the Nuclear Regulatory Commission. As such, New York
State expects the USACE to do likewise at the Linde site. It is very
disappointing that a Federal agency remediating radiological
contamination in New York State's environment is unwilling to subject
its cleanup efforts to peer review, as would occur if the USACE
employed an independent verification contractor. It is especially
unfortunate when other Federal radiological agencies are willing to do
when they are involved in similar cleanups in this State.
APPLICATION OF CLEANUP CRITERIA
12. This document does not discuss what mechanism will be used to
determine compliance with the cleanup level. While the averaging over
100 m2 areas is discussed, more recently at site cleanups
the Multi-Agency Radiation Survey and Site Investigation Manual
(MARSSIM) techniques are being applied. The document needs to address
how a successful site cleanup will be determined.
13. With regard to Ra-226 concentrations averaged over 100
m2 as specified in Subpart B of 40 CFR Part 192 (and
potentially for uranium) we believe that averaging is allowable, as
long as the upper end is bounded by some hot spot criteria. It should
be noted for the record that this Department does not accept the
derived concentration guideline level-elevated measurement comparison
as derived by MARSSIM. Instead, the hot spot criterion should be some
small multiple of the cleanup criteria. In addition, if the 100
m2 areas are different than the MARSSIM survey units (since
MARSSIM Class 1 survey units can be up to 2,000), the 100 m2
units should be defined at the same time the MARSSIM final status
survey units are established, to prevent manipulation of the areas so
that an area passes. In addition, the MARSSIM grid should be tied into
the UTM grid system to allow replication in the future, if necessary.
14. This document needs to discuss the sum of the fractions rule.
While individual standards will have been established for each
radionuclide of concern (which meet an acceptable risk base exposure
level for that individual radionuclide), a discussion on how the
presence of multiple radionuclides will be evaluated should be
included. The acceptable method the Department endorses is the sum of
the fraction rule.
DEFINITION OF MED
15. Please note that he correct term for the abbreviation MED is
``Manhattan Engineer District,'' not ``Manhattan Engineering
District,'' as is currently being used in many USACE documents.
__________
Attachment B
U.S. Environmental Protection Agency,
Washington, DC, June 26, 2000.
Hon. Clint Stennett, Minority Leader,
Idaho State Senate,
Boise, ID.
Dear Senator Stennett: This letter responds to questions to the
Environmental Protection Agency (EPA) contained in your letter of
February 28, 2000, to Chairman Richard Meserve of the Nuclear
Regulatory Commission, concerning disposal of radioactive by-product
material by the U.S. Army Corps of Engineers (USACE) under the Formerly
Utilized Sites Remedial Action Program (FUSRAP). In particular, you
expressed concern about the unregulated disposal of Atomic Energy Act
(AEA) radioactive byproduct material (Section 11e.(2)) that was
generated before 1978.
FUSRAP was established by Congress in 1974 to identify, evaluate,
and remediate the environmental condition of private and Federal sites
used in the early years of the atomic energy program by the Manhattan
Engineer District and the Atomic Energy Commission (Department of
Energy predecessor agencies). On October 13, 1997, the Energy and Water
Resources Appropriation Act of 1998, Public Law 105-62, designated the
USACE as the Federal agency with responsibility for the implementation
of FUSRAP. USACE performs response actions for FURSRAP sites under the
authority of the Comprehensive Environmental Response, Compensation,
and Liability Act as amended (CERCLA).\1\ As such, the USACE is subject
to the National Oil and Hazardous Substance Pollution Contingency Plan
(NCP), which provides the blueprint for response actions under CERCLA.
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\1\ The Corps was directed to address FUSRAP sites under CERCLA
authority in its 1999 appropriations language. In addition, James M.
Owendoff, DOE, Acting Assistant Secretary for Environmental Management
and Russell L. Fuhrman, Major General, U.S. Army Director of Civil
Works signed the Memorandum of Understanding between the U.S.
Department of Energy and the U.S. Army Corps of Engineers Regarding
Program Administration and Execution of the Formerly Utilized Sites
Remedial Action Program (FURSAP) (March 1999) that also stated that
cleanup would proceed under CERCLA authority.
---------------------------------------------------------------------------
There are a variety of wastes that the USACE may encounter while
remediating the FUSRAP sites. Categories of wastes include solid and
hazardous waste regulated under the Resource Conservation and Recovery
Act (RCRA), as well as radioactive waste that may or may not be
currently regulated by the Nuclear Regulatory Commission (NRC) under
the Atomic Energy Act (AEA). Hazardous waste may be either separate
from the radioactive materials, or commingled with them at mixed waste.
With regards to the radiological waste, some of this waste may be the
type of material referred to as ``byproduct material'' under Section
11e.(2) of the AEA (``the tailings or wastes produced by the extraction
or concentration of uranium or thorium from any ore processed primarily
for its source material content'').
The Nuclear Regulatory Commission (NRC) generally has regulatory
authority over source, special nuclear, and byproduct material except
insofar as those materials are regulated by DOE specifically for its
own activities. As you noted in your letter, the NRC determined that it
does not have authority to regulate the kinds of material referred to
in Section 11e.(2) produced prior to 1978, when Section 11e.(2) was
added to the AEA by the Uranium Mill Tailings Radiation Control Act
(UMTRCA).\2\ Your letter asked what agency provides for protective
disposal of this material if it is not regulated by NRC. Enclosed are
responses to your questions regarding the material that NRC has
determined is outside its jurisdiction.
---------------------------------------------------------------------------
\2\ Response to the October 15, 1998 petition from the National
Resources Defense Council (40 FR 16504 (April 5, 1999). The NRC's
position on pro-1978 11e.(2) material was repeated in the letter from
Shirley Ann Jackson to Stephen C. Collins, Chairman of the Conference
of Radiation Control Program Directors Inc. (May 3, 1999) and in a
letter to the Honorable John Dingell from Greta Joy Dicus (July 29,
1999).
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We hope this information is helpful to you. If you would like more
information, please contact the following staff: Robin M. Anderson
(702-603-8747) for information on CERCLA responses; Dale Ruhter (703-
308-8192) for information on pre-1978 byproduct waste disposal at RCRA
sites; David Eberly (703-308-8645) for information on the Off-Site
Rule; or Dan Schultheisz (202-564-9349) for information on the Atomic
Energy Act. We appreciate your interest in this matter.
Sincerely,
Robert Perciasepe,
Assistant Administrator.
Timothy Fields, Jr.,
Assistant Administrator.
__________
Responses by Environmental Protection Agency to Additional Questions
Question 1. What are any radiation exposure issues presented by
radioactivity levels under EnviroSafe's permit for FUSRAP waste
disposal at its facility; and how do these [EnviroSafe's permit] limits
compare with the EPA's requirements?
Response. We would not review EnviroSafe's radioactive disposal
permit as part of our regulatory activities. Since we have not reviewed
EnviroSafe's permit, we are therefore not prepared to comment on the
specific radioactivity levels in the permit. However, there are certain
principles that EPA thinks are important to the safe management of
waste, and the degree to which these principles are met can serve as a
basis for evaluating a particular disposal facility. The protectiveness
of the facility should be measured against those principles. (See the
discussion under item B below.)
EPA has not established requirements for the disposal of this type
of material at a RCRA Subtitle C facility. As a RCRA-authorized state,
Idaho may have a regulatory program that includes wastes that are
outside the jurisdiction of RCRA since a State's program may be broader
in scope than required under RCRA. We understand that Idaho state
hazardous waste officials have worked directly with EnviroSafe to add
FUSRAP-specific provisions to the facility's State permit.
Question 2. What are the appropriate health and safety protections
necessary for workers, the public, and the environment relative to the
disposal of radioactive materials that can be disposed at EnviroSafe's
facility under its permit?
Response. It is important that waste disposal is protective of
human health from carcinogenic and noncarcinogenic risks, and the
environment, including worker health and safety. EPA's general measure
of protectiveness under RCRA and CERCLA includes, but is not limited
to, the risk range (generally 1 in 10,000 to 1 in 1,000,000 risk of
contracting cancer), hazard index (HI) (generally a HI of less than 1
for noncarcinogens with the same toxic endpoint or mechanism of
action), and protection of the environment. Protection of natural
resources such as ground water is a key consideration in evaluating the
protection of human health and the environment. EPA believes that
ground waters should be monitored and protected to ensure beneficial
use and this includes ensuring that Maximum Contaminant Levels (MCLs)
established under the Safe Drinking Water Act are not exceeded, where
ground waters are a current or potential source of drinking water.\1\
These standards are consistent with standards generally used under EPA
statutes and particularly with respect to management of RCRA hazardous
waste.
---------------------------------------------------------------------------
\1\ See 40 CFR 264 Subpart F for ground water monitoring
requirements to detect contamination at RCRA facilities.
---------------------------------------------------------------------------
Typical protections for workers at a radioactive waste disposal
facility would include shielding, limiting the time spent handling
radioactive material, and dosimetry. Environmental monitoring that is
capable of early detection of releases would be appropriate. Without
more information, we cannot comment on the effectiveness of
EnviroSafe's worker protection or monitoring programs for
radionuclides.
Question 3. What is the EPA's authority and responsibility as to
the regulation of the disposal of this material?
Response. Three statutes address EPA's authority and
responsibilities over the disposal of this material: CERCLA, RCRA, and
UMTRCA.
First, since the U.S. Army Corps of Engineers is performing the
cleanups under CERCLA authority, the waste is subject to the CERCLA
Off-Site Rule (40 CFR 300.440). EPA is concerned that the disposal of
wastes as a result of a CERCLA cleanup does not itself result in a
future Superfund site. To address this concern, CERCLA waste disposed
of off-site must comply with the Off-Site Rule. In particular,
receiving facilities must be in compliance with RCRA standards (if
applicable) or other applicable Federal or State requirements. At
hazardous waste management facilities, the waste management unit
receiving the waste must not currently and should not be expected to
release contaminants into the environment. Any releases from other
units at the facility must be controlled. At other than hazardous waste
management facilities, environmentally significant releases must be
controlled. EnviroSafe in Idaho is currently acceptable to receive
CERCLA waste under the Off-Site rule and received its most recent
approval from EPA's Region 10 on March 14, 2000.
Second, under RCRA, EPA regulates solid and hazardous waste.
Hazardous wastes are a subset of solid wastes that may cause or
significantly increase illness, or may pose a hazard to human health or
the environment when improperly managed. RCRA imposes more stringent
requirements on hazardous waste than it does on non-hazardous solid
waste. To be regulated as a hazardous waste, a material must first meet
the definition of a solid waste, i.e., RCRA only allows EPA to regulate
materials that are solid wastes. As explained below, EPA does not
regulate the kinds of material referred to in Section 11e.(2) as either
a solid or a hazardous waste.
The RCRA statutory definition of the term ``solid waste'' excludes
``source, special nuclear and byproduct material as defined by the
Atomic Energy Act.'' 42 U.S.C. Sec. 6903(27). Correspondingly, EPA's
RCRA regulations also exclude this Atomic Energy Act material from the
definition of a solid waste. 40 CFR part 261.4(a)(4). Therefore,
materials meeting the AEA definition of byproduct material (which
includes Section 11e.(2) material) are not regulated under RCRA,
because those materials are not solid waste. To date, EPA has not
distinguished between the kinds of material referred to in Section
11e.(2) generated before 1978 and such material generated after 1978,
and EPA does not regulate any of this material under RCRA.
Even if this pre-1978 material were determined to be solid waste
for purposes of RCRA, these mining beneficiation wastes cannot
currently be regulated by EPA as a hazardous waste. The tailings fall
within an exclusion from regulation as a hazardous waste under 40 CFR
261.4(b)(7). This exclusion reflects Congressional intent that contain
wastes, such as mining extraction, beneficiation, and processing
wastes, should not be regulated as hazardous waste without a specific
decision by EPA after submitting a report to Congress. EPA submitted
the required report to Congress in 1985 and then determined that mining
extraction and beneficiation wastes should not be regulated as a
hazardous waste. Regulation of this pre-1978 material as a hazardous
waste, if it were determined to be solid waste, would require a new
regulatory determination that it should be regulated as a hazardous
waste.
Third, the UMTRCA statute, which defined 11e.(2) byproduct
material, delineated regulatory responsibility for 11e.(2) material.
EPA was given the responsibility to establish standards for the
protection of public health, safety, and the environment from
radiological and non-radiological hazards associated with the
processing, possession, transfer, and disposal of 11e.(2) byproduct
material. These regulations appear in 40 CFR 192. UMTRCA gave the
responsibility for implementing and enforcing EPA's regulations to the
Nuclear Regulatory Commission. NRC has issued regulations in 10 CFR 40
that implement our standards and set forth criteria for licensing and
operation of uranium processing facilities.
We understand that NRC has interpreted its UMTRCA jurisdiction as
being limited to regulating this kind of material generated only at a
site licensed by NRC. Because FUSRAP sites were not licensed during
their operations, NRC does not believe it has jurisdiction to apply its
regulations, or implement ours, for disposal of this kind of material
resulting from FUSRAP cleanups. Regarding on-site cleanup activities,
NRC affirms that they ``believe that USACE FUSRAP activities are
governed by CERCLA requirements in a manner which protects health and
safety, and we do not see a need to ask Congress to provide regulatory
authority to the NRC [over CRCLA on-site response actions].''\2\
---------------------------------------------------------------------------
\2\ Letter from Shirley Ann Jackson, NRC Chairman, to Stephen C.
Collins, Conference of Radiation Control Program Directors, Inc., May
3, 1999.
Question 4. What is the EPA's position as to the disposal of this
type of radioactive waste in a RCRA disposal facility?
Response. EPA does not regulate the disposal of this material
through RCRA. EPA has some general principles that apply to the
disposal of hazardous wastes, which it has incorporated into the
Subtitle C standards. These principles and the standards may provide
protection from some of the risks from the material that NRC has
decided not to regulate, but this material can also carry risks that
are not addressed by the RCRA standards. EPA has therefore suggested to
the USACE that, if it ships this material to a facility that does not
have an NRC license, the facility be designed and operated to accept
the waste and ensure the protection of human health and the environment
as discussed above. Safeguards to ensure the protection of human health
and the environment include: permit conditions by the state that
address radiological risks; ground water monitoring to ensure that
radiological releases do not compromise the ground water as a natural
resource; waste management practices to limit public exposure (either
currently or in the future) to an acceptable risk range; corrective
action requirements to ensure remediation if the disposal unit fails;
and practices to ensure worker protection. These practices should
include health and safety plans that specifically address radiation,
waste analysis and acceptance criteria, and worker monitoring to ensure
their protection. In addition, we believe it vitally important that the
community is aware of the potential for local radioactive waste
disposal and has been adequately informed and provided an opportunity
for comment.
______
Attachment C
Conference of Radiation Control Program Directors, Inc.,
Frankfort, KY, April 9, 1999.
Hon. Shirley Ann Jackson, Chairman,
U.S. Nuclear Regulatory Commission,
Washington, DC.
Dear Chairman Jackson: By letter dated March 2, 1998, from Robert
L. Fonner (U.S. NRC) to Ann Right (USACE), the U.S. Nuclear Regulatory
Commission (NRC) took the position that it has no regulatory authority
over 11.e.(2) byproduct material generated prior to the enactment of
the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA). This
is primarily a concern where the U.S. Army Corps of Engineers (USACE)
performs cleanups at the Formerly Utilized Sites Remedial Action
Program (FUSRAP) sites without independent regulatory oversight. The
membership of the Conference of Radiation Control Program Directors
(CRCPD) welcomes the USACE's efforts and encourages cost-effective
cleanup of these sites. However, we are concerned that without
regulatory oversite of this radioactive material, there are no
assurances that adequate measures are being taken to protect human
health and the environment. In the absence of NRC regulation over the
sites, State authority applies in some States, however, in others the
material is unregulated altogether.
At FUSRAP sites which are being cleaned up by the USACE, there
maybe no regulatory authority. When these sites were under the
jurisdiction of DOE, the DOE regulated the site as provided in the
Atomic Energy Act (AEA). The USACE has no legal authority to self
regulate under the AEA. This is causing some problems at both the sites
of generation as well as sites receiving wastes for disposal.
There is no consistent waste characterization method utilized by
the USACE. This is important because characterization of the waste
dictates other factors such as worker protection procedures, cleanup
standards, and disposal options. To illustrate the magnitude of the
problem, the USACE estimates that there are 1.5 million cubic meters
(approximately 53 million cubic feet) of contaminated soil at the
FUSRAP sites. These soils contain 11.e.(2) byproduct material, source
material, low-level radioactive waste, naturally occurring radioactive
material, and hazardous waste.
The CRCPD Board of Directors believes that the NRC has authority
over these materials. There are two mechanisms that give the NRC this
authority. First, 10 CFR Part 40 indicates that any material that has
greater than 0.05 percent uranium by weight is source material, unless
otherwise specifically exempted by the rule. We believe that much of
the FUSRAP material would be subject to regulation under 10 CFR Part 40
if it is not subject to the requirements of UMTRCA. Second, a
precedence has been established by the U.S. Environmental Protection
Agency (EPA) that wastes generated prior to the enactment of legal
authority (Resource Conservation and Recovery Act) are regulated under
that authority when they are newly exhumed during cleanup. (37 FR
37298, August 18, 1992). EPA requires that when a hazardous waste is
exhumed, it must undergo classification per 40 CFR Part 261 as if it
were newly generated. Wastes that are classified as hazardous waste are
then subject to the current requirements for handling and disposal.
Thus, wastes that pose a threat are handled protectively regardless of
when they were originally generated.
If, upon examination of these two mechanisms, NRC still believes it
has no jurisdiction over this material, especially uranium and thorium,
then we suggest that NRC approach Congress for appropriate authority to
regulate this material. We would appreciate a written response
regarding NRC's position on this matter by April 30, 1999, to enable
the discussion of issues at CRCPD's Annual Meeting.
Thank you for your consideration of this matter. If you have any
questions, please feel free to call Henry Porter, Chairperson,
Committee E-5, Committee on Radioactive Waste Management at (803) 896-
4245.
Sincerely,
Steven C. Collins,
CRCPD Chairman.
__________
Statement of Alan Fellman, Ph.D., C.H.P.
My name is Alan Fellman. I have worked as a radiation safety
specialist, or health physicist, for approximately 15 years. I have a
masters degree in public health from the University of Michigan and a
doctorate in radiological sciences from New York University. I am
certified in the practice of health physics by the American Board of
Health Physics. I have been asked by Envirocare of Utah to provide my
views on radiological issues related to the safe disposal of Formerly
Utilized Sites Remedial Action Program (FUSRAP) waste.
I began my work as a radiation safety specialist with the U.S.
Environmental Protection Agency (EPA) Region II radiation branch. I
worked for the EPA for 1.5 years before joining Malcolm Pirnie Inc., an
1,100 person environmental science and engineering consulting firm. For
more than nine years, I was responsible for numerous projects involving
radiation and radioactive materials. Specifically, as Malcolm Pirnie's
senior health physicist, I was responsible for radiation safety,
radiological site characterizations, data interpretation, and
radiological risk assessments at several CCLA sites where the primary
contaminants are radioactive. These sites included the U.S. Radium
Corporation site in Orange, N.J., the Li Tungsten site in Glen Cove,
N.Y., and the Welsbach/General Gas Mantle site in Camden and Gloucester
City, N.J. I was responsible for radiological investigations of Phase
II properties at the Maywood FUSRAP site in Maywood, N.J. and I headed
up Malcolm Pirnie's efforts to characterize residual radioactive
contaminants aboard the nuclear barge Sturgis. I was responsible for
updating the health effects criteria documents on radium, alpha
radioactivity, and beta/gamma radioactivity for the EPA Office of
Water. I have worked on behalf of clients involved in litigation
involving radium contamination of oil and natural gas production
facilities as well as alleged radioactive contamination of ground
water.
In August, 1999, I joined Communication Sciences Institute (CSI),
Gaithersburg, Maryland. In my new position, I teach segments of several
courses on various components of radiation safety and supervise a
technical support contract which CSI maintains for the Radiation Safety
Branch at the National Institutes of Health (NIH).
BACKGROUND ON FUSRAP WASTE DISPOSAL
The FUSRAP program was created in the 1970s to remediate sites
where work had been performed during the early years of the atomic
energy program in the United States. In general, the primary
radiological waste streams at these sites consist of processed ore
residues, or tailings, which contain elevated concentrations of
thorium, uranium, and radium and their radioactive decay products. They
are a type of low-level radioactive waste defined in the Atomic Energy
Act (AEA) as byproduct material.
Prior to assumption of the FUSRAP program by the U.S. Army Corps of
Engineers (USACE) in 1997, the manner in which FUSRAP wastes were
disposed had not changed. All waste generated during the remediation of
these sites had been sent to Department of Energy (DOE) approved and/or
Nuclear Regulatory Commission (NRC) disposal facilities licensed to
accept this material. Since the USACE assumed ownership of the FUSRAP
program, there has been a decided shift in this long-standing practice.
In 1998, the NRC interpreted the 1978 Uranium Mill Tailings Radiation
Control Act (UMTRCA) to preclude NRC's authority to regulate byproduct
material waste streams generated prior to the passage of UMTRCA. From a
regulatory standpoint, this decision by NRC has had the effect of
segmenting this type of waste into two distinct groups--pre-1978
material, under the authority of no Federal agency, and post-1978
material, under the authority of the NRC. Physically and
radiologically, there are no differences between pre-1978 and post-1978
byproduct materials. By not exercising its regulatory authority over
FUSRAP waste or other pre-1978 byproduct material, the NRC has
transformed the USACE into a de facto self- regulating agency with no
Federal standards to govern their disposal of FUSRAP waste. It has
placed the USACE in a situation whereby they could be forced to choose
between financial expediency and sound radiological practices.
POTENTIAL HAZARDS FROM THE USE OF UNLICENSED DISPOSAL SITES
The disposal strategy implemented by the USACE (described below)
may result in exposure to radioactive materials among untrained workers
at unlicensed disposal facilities. Under some circumstances, it may
violate the intent of the as low as reasonably achievable (ALARA)
philosophy, which is codified in most if not all Federal and State
radiation protection regulations and is at the core of all radiation
safety programs.
NRC's interpretation of the 1978 UMTRCA has provided the USACE with
the option to dispose of FUSRAP waste at non-radiologically licensed
Resource Conservation and Recovery Act (RCRA) Class C Landfills. Since
the NRC has said it will not regulate FUSRAP waste, arguably the USACE
is free to dispose of this waste anywhere. Although disposal of pre-
1978 byproduct material at RCRA facilities may be somewhat less
expensive in the short run, these facilities may lack appropriate
radiological controls designed to protect the workers, the public, and
the environment.
The USACE's current strategy on FUSRAP waste disposal is described
in EC 200-1-3.\1\ That strategy includes the following:
---------------------------------------------------------------------------
\1\ U.S. Army Corps of Engineers. Engineer Circular 200-1-3, Off-
Site Disposal Of Materials From The Formerly Utilized Sites Remedial
Action Program, 3 January 2000.
---------------------------------------------------------------------------
Waste characterization;
Identification of potential disposal facilities;
Cost analysis;
Compliance with the ``off-site rule,'' as described in 40
CFR Sec. 300.440 (b) \2\ and seek verification of compliance from
USEPA's regional off-site coordinator (ROC);
---------------------------------------------------------------------------
\2\ The off-site rule prohibits waste disposal from Superfund, or
CERCLA sites at facilities which have had uncontrolled releases of any
hazardous waste, constituent, or substance into ground water, surface
water, soil, or air.
---------------------------------------------------------------------------
Notification of all appropriate regulators prior to
shipment; and
Compliance with appropriate NRC/Department of
Transportation (DOT) transportation regulations.
Whereas most generators of low-level radioactive waste (llrw),
including byproduct material, must dispose their waste in a NRC or
Agreement State licensed disposal facility, NRC's UMTRCA interpretation
forces the USACE to evaluate State regulations which address disposal
of naturally occurring radioactive materials (NORM) or technologically
enhanced naturally occurring radioactive materials (TENORM). Currently,
10 states have promulgated specific TENORM regulations. They are
Arkansas, Georgia, Louisiana, Mississippi, New Jersey, New Mexico,
Ohio, Oregon, South Carolina, and Texas. Other States may choose to
allow some NORM waste disposal at RCRA Subtitle C and other types of
facilities. Typically, disposal limits are included in operating
permits at these facilities.
The evaluation of FUSRAP waste disposal options by the USACE
therefore becomes an attempt to match the specific requirements of an
interested disposal facility to the characteristics of a specific waste
stream targeted for disposal. State regulations vary considerably with
respect to radionuclide acceptance criteria and the type of
environmental and worker protection afforded at their hazardous waste
landfills. Some States with permitted RCRA Subtitle C facilities do not
have an appropriate State agency to oversee andenforce regulations
covering radioactive waste disposal. Permit compliance and
implementation of radiation protection practices may be lacking at
these types of facilities.
Some permit conditions simply do not make sense. For example, some
RCRA Subtitle C facility permits limit radionuclide concentrations
based on the DOT definition of non-radioactive material, e.g. materials
containing less than or equal to 0.002 microcuries per gram
(Ci/g) of material, or 2,000 picocuries per gram (pCi/g) of
material. The origin and intent of this definition is based on
providing for protection of the public from radioactive materials along
transportation routes. It has no relevance to the safe disposal of
radioactive materials, nor should it be misinterpreted as suggesting a
lack of radiological risk to workers or members of the public posed by
exposure to any specific concentration of radioactive material not
exceeding this limit. In short, transportation is not synonymous with
disposal, and to suggest otherwise is misleading.
Disposal at a NRC or Agreement State facility brings with it
attendant radiological controls. There are no mandatory, enforceable
protection provisions universally designed to limit radiological
hazards at RCRA facilities. These facilities typically were not
designed nor regulated to accept radioactive materials. In fact, RCRA
specifically does not pertain to the types of radioactive material,
including byproduct material, defined in the AEA and amendments.
Therefore, the establishment of a RCRA facility does not include the
rigorous environmental investigations which are mandatory to obtain an
NRC or Agreement State license to dispose of radioactive waste.
With the USACE free to dispose of pre-1978 byproduct material
waste, such as FUSRAP waste, at RCRA facilities which have not been
adequately characterized for radioactive waste disposal, the likelihood
of a release of radioactive material to the environment increases. For
example, a September 1999 report prepared for EnviroSafe Services of
Idaho, Inc. (ESII), a RCRA-permitted landfill, concluded that upper
aquifer groundwater will come in contact with the bottom of missile
silos used for waste disposal in as little as 34 years.\3\ NRC-licensed
disposal facilities, on the other hand, are designed to isolate
radioactive wastes from the environment for a minimum of 1,000 years
and are required to be under Federal or State ownership in perpetuity.
It is possible that environmental conditions at the ESII and other RCRA
Subtitle C landfills would not satisfy the more rigorous criteria used
to establish sites for radioactive waste disposal facilities. At a
minimum, most RCRA facilities accepting FUSRAP wastes would need to
modify their environmental monitoring programs to account for the
radioactive constituents.
---------------------------------------------------------------------------
\3\ Chuck Feast, Carlton Parker, and Richard Glanzman, CH2M Hill.
September 1999. Rising Groundwater Study prepared for EnviroSafe
Services of Idaho, Inc.
---------------------------------------------------------------------------
WORKER HEALTH AND SAFETY
A major concern for using RCRA landfills for the disposal of pre-
1978 byproduct material is that workers at these facilities are not
protected by the radiation worker protection standards found in 10 CFR
Parts 19 and 20. These comprehensive NRC standards encompass all
aspects of radiation worker protection. Licensees typically document
radiation protection programs which cover radiation safety training
requirements, dose limits (workers, general public, pregnant females,
and minors), personnel dose and environmental monitoring, effluent
limits, routine radiation surveys, bioassay programs, posting of areas,
emergency response planning, and programs designed to keep worker
exposure ALARA.
Of major importance are the training requirements included in the
NRC andAgreement State standards. NRC regulations (10 CFR 19.12)
mandate that any worker receiving more than 100 mrem/yr be provided
with appropriate radiation worker training.
This training should include, at a minimum, instruction in:
the storage, transfer, or use of radioactive material;
the health protection problems associated with exposure to
radioactive material and procedures to minimize exposure;
applicable provisions of NRC regulations; individual
responsibility to report any condition which could lead to a violation
of NRC regulations;
appropriate response actions to be taken in the event of
any unusual occurrence; and
radiation dosimetry and the availability of radiation
exposure reports.
Unlicensed RCRA subtitle C facilities, on the other hand, are not
subject to the NRC and Agreement State radiation protection standards.
They are, however, subject to the ionizing radiation standard
promulgated by the U.S. Occupational Safety and Health Administration
(OSHA) in 29 CFR Sec. 1910.1096. Unfortunately, the level of protection
afforded workers covered by the OSHA standard falls far short of that
provided by NRC and Agreement State standards, for several reasons:
(1) While NRC requires employers to provide worker training and the
USACE \4\ requires training for any individual potentially receiving a
dose equivalent of 100 mrem per year, OSHA establishes training
requirements for individuals frequenting a radiation area in
1910.1096(i)(2). Radiation areas are defined in 1910.1096(d)(3)(ii) as
an area where an individual could receive 5 mrem in any one hour or 100
mrem in 5 consecutive days. Most facilities accepting FUSRAP wastes
will not have any ``radiation areas,'' so radiation safety training
covering even rudimentary procedures for handling radiological
materials will not be a regulatory requirement. Yet as described below,
it is possible that workers at these facilities might receive radiation
dose equivalents of several hundred mrem per year.
---------------------------------------------------------------------------
\4\ USACE Safety and Health Requirements Manual (EM 385-1-1,
September 3, 1996)
---------------------------------------------------------------------------
(2) NRC and Agreement State licensees and the USACE provide
personnel radiation dose monitoring devices to any employee who might
receive ten percent of the occupational limit, or 500 mrem in one year.
In 1910.1096(d)(2), the OSHA standard requires personnel dosimetry for
employees who might receive 25 percent of the 1.25 rem allowed in a
calender quarter, or 313 mrem in three months. Based on this
requirement, RCRA facility operators could allow workers to receive
upwards of 1,000 mrem in one year without any mandatory personnel dose
monitoring.
(3) NRC and Agreement State agencies employ inspectors who
routinely audit licensees to check for compliance with regulations and
conditions specified in the radioactive materials license. OSHA has no
such staff; therefore, while unlicensed facilities are regulated by the
OSHA standard, the reality is that no regulatory presence exists to
document compliance, enforce requirements via citation of violations,
assess penalties, and seek and approve corrective actions.
(4) Unlike NRC or Agreement State licensees, the operators of RCRA
facilities covered by the OSHA standard are not required to develop and
implement a radiation protection program, nor must they employ
qualified radiation protection professionals, or health physicists, to
ensure safe handling, disposal, and monitoring of radioactive
materials.
For the reasons stated above, an unlicensed, minimally regulated
facility accepting radioactive waste for disposal has the potential for
unnecessary and unmonitored radiological exposure of workers.
What magnitude of doses might workers receive while working with
pre-1978byproduct material? The RESRAD computer code (developed at
Argonne National Laboratory by the DOE and widely utilized throughout
the nuclear industry), allows us to estimate doses and corresponding
health risks to individuals (e.g., workers, residents, etc.) based on
exposure to radionuclides in soil. I performed several RESRAD
calculations based on occupational scenarios where workers are exposed
to soil-like material with radionuclide concentrations which are
typical of FUSRAP waste for a work-year. Exposure to materials
containing 2,000 pCi/g total activity (the exempt status from DOT
regulations) was estimated to cause annual doses ranging from 375 mrem
to 740 mrem, depending on the ratio of thonum to uranium in the waste
stream. In 10 CFR 20, the NRC limits the annual dose to a member of the
general public at 100 mrem. Annual doses were shown to exceed the l00
mrem limit to the general public based on exposure to waste containing
only 20 pCi/g of thorium and its decay products and 10 pCi/g uranium
and its decay products. Most FUSRAP waste contains at least these
levels of radioactivity.
A comparison of the 375-740 mrem annual potential dose to workers
at unlicensed facilities from FUSRAP wastes to dose limits established
by various agencies may be useful. Compliance with the NRC
decommissioning standard demands that licensees remove residual
contamination from buildings and environmental media such that future
occupants of the property will not receive doses which exceed 25 mrem
annually. The EPA has also promulgated several standards and directives
related to maximum acceptable annual doses to the public. These include
4 mrem from the ingestion of beta- and gamma-emitting radionuclides in
drinking water (Safe Drinking Water Act), 10 mrem from the release of
radionuclides to air (National Emissions Standards for Hazardous Air
Pollutants- Radionuclides), and 15 mrem from residual radioactivity
remaining at a remediated CERCLA site. The RESRAD results provided
above due to occupational exposure to FUSRAP waste greatly exceed the
NRC and EPA standards for members of the public. In EM 385-1-1, the
USACE establishes the allowable dose to a USACE worker at the same
limit established by the NRC for radiation workers (5,000 mrem/yr).
However, Section 06.E.04 includes a suggested ALARA goal of 100 mrem/yr
for USACE radiation workers. It is not right that untrained workers at
RCRA landfills could potentially receive a radiation dose that is
several times greater than the ALARA goal which USACE recommends for
its own radiation workers.
HEALTH RISK COMPARISON
Another way to evaluate the potential impact from the disposal of
FUSRAP wastes in an unlicensed facility is to express the radiation
doses in terms of health risk. We attempt to limit exposure to ionizing
radiation because a wide body of scientific research has found that
radiation is a human carcinogen. While there is much controversy
regarding the relationship between radiation doses less than 10 rem and
risk, public health policy has been established based on the assumption
that any radiation dose, regardless of how small, carries some
carcinogenic risk. The doses calculated with the RESRAD code result in
increased lifetime risks of developing cancer which range from
approximately 4 x 10-3 to 9 x 10-3. By comparison, the EPA has as its
goal a target risk reduction to the 104 to 104 risk range at CERCLA
sites. In other words, the carcinogenic risks to workers at an
unlicensed RCRA facility selected for disposal of FUSRAP wastes could
exceed the acceptable risk range established by EPA under CERCLA.
UNIMPORTANT QUANTITY OF SOURCE MATERIAL EXEMPTION
NRC has established exemptions for some materials under their
jurisdiction, including an exemption for ``Unimportant quantities of
source material'' (10 CFR 40.13(a)). This exemption is not relevant to
FUSRAP waste. The recently published NRC draft, NUREG-1717 titled
Systematic Radiological Assessment of Exemptions for Source and
Byproduct Materials states in section 3.2.1 that
``The estimated individual doses are greater than or equal to 1
mSv/yr (100 mrem/yr) but less than 10 mSv/yr (1,000 mrem/yr) for the
following two (2) exemptions:
10 CFR 40.13(c)(1)(iii): Welding rods containing thorium,
and
10 CFR 40.13(b): Unrefined and unprocessed ore containing
source material.''
Byproduct material from the processing of the source material
exempted in 40.13(b) was expressly excluded from this exemption. FUSRAP
waste consists of processed materials, while the 40.13(b) exemption is
specific for unrefined and unprocessed ore. In many cases, the
processed tailings contain radionuclide concentrations which exceed
that of the original ore.
Although not stated in NIJREG-1717, the exclusion in 10 CFR
40.13(b) may be limited to unrefined and unprocessed ore because, as
stated above, once the source materials are processed, the resulting
tailings and millings often have even higher concentrations of some
radionuclides. The processed waste residues, or tailings, are soil-like
in appearance. They are often extremely non-homogeneous with respect to
their concentrations of thorium, uranium, and radium. This makes it
very difficult to properly and fully characterize these materials. This
type of waste is typically shipped to disposal sites in bulk form. As
such, the absorption or shielding capability of these soil-like
materials can mask small volumes with high radionuclide concentrations,
or ``hot spots,'' that cannot be detected by typical radiation surveys.
For example, a shipment of FUSRAP material was sent to a RCRA landfill
in Buttonwillow, California with the certification that the contents
were ``non- radioactive'' for transportation, i.e., less than 2,000
pCi/g of total radioactivity. However, sample data generated on that
material prior to shipment show that some volume of material contained
3,600 pCi/g of total radioactivity, a factor of 1.8 times higher than
the DOT exempt concentration.
I have been involved with similar situations concerning non-FUSRAP
material contaminated with the same radionuclides of concern as FUSRAP
wastes. The radiological survey of a container often reveals a
relatively low exposure rate from gamma radiation emanating from the
contaminated material. When the contents are spread out and
investigated closely, there may be portions of the material exhibiting
exposure rates more than ten times greater than from the containerized
material. In these and similar situations, individuals involved should
be radiation trained and appropriate radiation controls should be in
place to limit the radiation exposure to the workers handling the
material. It is precisely this uncertainty that is fundamental to the
characterization of FUSRAP waste. It is exactly these types of
situations which demand trained radiation workers to ensure that
exposures are kept ALARA.
USACE COMPARISON TO MERLOT WINE
During a March, 2000 hearing of the House Energy and Water
Subcommittee, Robert Anderson, general counsel of the USACE compared
the radioactivity in a bottle of Merlot wine to the radioactivity
present in FUSRAP waste.\5\ Mr. Anderson was obviously misinformed, as
his statement is both factually incorrect and scientifically
meaningless. While most every food and beverage contains some amount of
natural radioactivity, Brazil nuts, with up to 14 pCi/g of radium,
contain the highest level of any radionuclide on a per gram basis of
any commonly ingested product, including wine. FUSRAP waste, with its
radium, thorium, and uranium content, typically contains much greater
concentrations of radioactivity than Brazil nuts. In fact, the
radioactivity in the waste exceeds the radioactivity concentration in
the nuts by a factor ranging from approximately 10 to 150. The
difference in radionuclide concentrations between the waste and a
bottle of wine are even more significant, ranging up to a factor of
several thousand times greater in FUSRAP waste.
---------------------------------------------------------------------------
\5\ There is no doubt that Merlot wine contains some natural
radioactivity, as do most every food and beverage which we consume on a
daily basis. On average we receive 20 mrem/yr from ingesting
radionuclides such as potassium-40, carbon-14, hydrogen-3, radium-226,
and thorium-232. Examples include Brazil nuts (14 pCi/g of radium-226),
beer (less than one pCi/g of total radioactivity), and bananas (3 pCi/g
of potassium-40). However, since we do not typically ingest FUSRAP
waste, the attempt to use the natural radioactivity in wine or any
other food or beverage as a basis of comparison to the risks posed by
waste disposal is without merit.
---------------------------------------------------------------------------
Mr. Anderson's comparison is particularly troublesome, given the
radiological hazards posed by the K-65 process waste currently buried
at the USACE's Niagara Falls Storage Site (NFSS). The approximately
3,200 cubic yards of ore residues at the NFSS have average Ra-226
concentrations of 220,000 pCi/g and uranium concentrations which range
from 460-670 pCi/g. These are extremely high levels of radioactivity
which pose unique health and safety hazards to workers. The USEPA, New
York Department of Environmental Conservation, and the National
Research Council have all recommended that the material be permanently
disposed in a high level radioactive waste repository when one becomes
available.
In addition to being misleading, statements such as the one made by
Mr. Anderson demonstrate a disregard for the technical issues and the
health and safety concerns that must be recognized when managing these
wastes. It fails to acknowledge the risk that individuals choose to
take, i.e. where they live, the foods they eat, consumption of alcohol
and tobacco, and regulated radiation exposures as opposed to those that
they may choose not to take, such as exposure to radioactive wastes in
an unlicensed facility. These types of comparison statements typically
foster resentment among members of the public as they are perceived as
a personal insult to their intelligence. From the perspective of
radiation protection, the USACE strategy, as reflected by Mr.
Anderson's comment, has the appearance of circumventing well
established regulations designed to protect the worker, public health
and safety, and the environment.
CONCLUSION
In conclusion, the NRC, by failing to regulate pre-1978 byproduct
material, has provided the USACE with an opportunity to reap cost
savings on FUSRAP projects by disposing of waste at RCRA landfills. NRC
has failed to meet its mission to keep radiation exposures as low as
reasonably achievable by providing incentive for the USACE to carry out
its mandate at FUSRAP sites by disposing wastes at unlicensed
facilities staffed by untrained workers. These materials belong in a
NRC or Agreement State licensed radioactive waste disposal facility.
__________
Statement of Eric C. Peus, President, Waste Control Specialists LLC
Waste Control Specialists LLC (WCS) is a Texas-based waste
management firm that offers innovative and cost effective solutions for
the safe management of radioactive and hazardous materials. WCS
operates a state-of-the-art facility in Andrews County, Texas, that is
permitted for the treatment, storage and disposal of radioactive,
hazardous and toxic materials.
FACILITY SITING
The WCS facility is located on a 15,215 acre site in the extreme
western part of Andrews County, Texas, on the New Mexico border,
approximately 30 miles east of the Department of Energy's Waste
Isolation Pilot Project Facility. The closest communities to the
facility are the cities of Andrews, TX, approximately 30 miles east of
the site, and the city of Eunice, NM, approximately six miles west of
the site. Within the overall site, WCS has developed a 1,338 acre
facility which is fully permitted by the Texas Natural Resource
Conservation Commission (TNRCC) and the U.S. Environmental Protection
Agency for the treatment, storage and disposal of all Resource
Conservation Recovery Act (RCRA) and Toxic Substances Control Act
(TSCA) wastes. The currently permitted disposal area can accommodate
more than 11 million cubic yards of waste. The WCS facility is the only
RCRA disposal facility in the country that has been permitted after
implementation of the RCRA ``Land Disposal Restrictions'' regulations,
a situation that provides WCS customers with the broadest possible
range of liability protection. In the nearly three years that the WCS
facility has been in operation, no notices of violations have been
issued for any regulated activities.
The WCS site features superior geology for purposes of long-term
waste isolation. The facility sits on a very thick (800 to 1,000 feet)
layer of highly impermeable Triassic red-bed clay. The clay comes to
within approximately 20 feet of the surface. Within this clay
formation, WCS has constructed a state-of-the-art RCRA disposal cell
system. All waste authorized for disposal is placed in a RCRA cell with
double plastic and clay liners, and a double leachate collection
system. The end result is that WCS has constructed a full-scale, modern
RCRA facility, which is itself fully contained within a massive,
naturally-occurring bed of virtually impermeable clays that has been
found to have been geologically stable for more than 10 million years.
In the unlikely event that the facility's engineered barriers are
somehow compromised, groundwater migration time through the natural
barrier surrounding the facility has been calculated to be greater than
150,000 years.
The first usable groundwater below the naturally occurring clay
layer is non-potable, and there is no evidence of any infiltration from
the site. There is no surface or potable groundwater within 15 miles of
the WCS facility. The local climate is extremely arid, with an
evapotranspiration rate greatly exceeding the rate of annual rainfall.
Due to the local climate, normal facility operations can be conducted
throughout the entire year. The WCS site has direct rail access, a
railcar unloading facility for bulk shipments, and easy access from
nearby interstate highways.
The WCS facility enjoys strong support from the communities in
Andrews County and neighboring New Mexico. The local citizens have
expressly supported the use of the facility for the treatment, storage
and disposal of hazardous, toxic and low-level and mixed radioactive
waste. There have been no contested hearings for the permits and
licenses that have been granted to the facility. This is due in
significant part to the fact that the industry base of the region is
oil and gas production, and the citizens are thus comfortable with and
accepting of the risks of technology. They also fully understand the
superior geological characteristics of the site.
FACILITY LICENSES AND AUTHORIZATIONS
The WCS facility holds the following licenses, permits and
authorizations:
Low-Level Radioactive Waste Treatment, Processing, and Storage License
Issued: November 3, 1997, by Texas Department of Health.
Analysis Performed: Detailed review of 5,000-page technical
application addressing facility engineering design, waste acceptance
criteria, storage and processing technologies, health and safety
monitoring, to ensure conformance with all applicable state and federal
radiation control regulations.
Authorization: Authorized for treatment, processing and storage of
Class A, B, and C low-level radioactive wastes from commercial sector.
Storage authorized for up to seven years. In combination with RCRA
waste license, this license allows WCS to treat, process, and store
mixed wastes (hazardous wastes with radioactive contamination).
Industrial Solid Waste and Hazardous Waste Storage, Processing, and
Disposal Permit (Resource Conservation and Recovery Act (RCRA)
Wastes)
Issued: August 5, 1994, by Texas Natural Resource Conservation
Commission.
Analysis Performed: Seventeen-month detailed technical and physical
review of site characteristics, including groundwater and surface
hydrology, geology, and seismic characteristics. Supported by 3,500-
page technical application.
Authorization: Authorized for treatment, storage and land disposal
of all 2,000 classifications of Resource and Conservation Recovery Act
wastes.
Toxic Substances Control Act Land Disposal Authorization
Issued: December 2, 1994, by the U.S. Environmental Protection
Agency.
Analysis Performed: Seventeen-month detailed technical and physical
review of site characteristics, including groundwater and surface
hydrology, geology, and seismic characteristics. Supported by 3,500-
page technical application.
Authorization: Authorized for treatment, storage and land disposal
of all categories of polychlorinatedbiphenyls (PCBs).
Naturally Occurring Radioactive Material (NORM) Disposal Authorization
Issued: September 9, 1997, by Texas Natural Resource and
Conservation Commission.
Analysis Performed: Detailed review of technical application for
radiation screening procedures to ensure conformance with all
applicable state and federal radiation control regulations.
Authorization: Authorized for land disposal of NORM wastes exempt
from state or federal licensing requirements (wastes under 150
picocuries per gram of uranium or thorium and under 30 picocuries per
gram of radium, with a radon emanation rate of less than 20 picocuries
per square meter per second).
Research, Development, and Demonstration Permit
Issued: October 24, 1997, by Texas Natural Resource and
Conservation Commission.
Analysis Performed: Detailed review of proposed research,
development, and demonstration activities to ensure that such
activities can be conducted in an environmentally safe and sound
manner.
Authorization: Authorized to perform research, development, and
demonstration activities, up to pilot-scale level, of promising
technologies for the treatment and remediation of contaminated soil and
groundwater. Limited to use of wastes already on WCS site
This broad combination of licenses, permit sand authorizations
allows the facility to provide a wide array of services to both
commercial and government sectors. Current storage capacity can
accommodate approximately 300,000 cubic feet of low-level and mixed
radioactive waste.
WCS does not currently possess a U.S. Nuclear Regulatory Commission
(NRC) 10 CFR Part 61 license for disposal of low-level radioactive
waste.\1\ Texas regulations, however, allow WCS to dispose of certain
source materials, NORM and a variety of other materials that are exempt
from licensing in Texas. The Texas Department of Health (TDH) regulates
treatment and storage of waste and licensing of radioactive material,
while the Texas Natural Resources Conservation Commission (TNRCC)
regulates disposal of LLRW. In a memorandum of understanding between
the two agencies, if the TDH has exempted a radioactive material from
licensing, then the material can be disposed of without regard to its
radioactive properties under TNRCC authority. WCS has the authority to
dispose of low-activity radioactive materials under its RCRA permit,
and has in place an acceptance criteria which requires radiation
surveys and analysis for all incoming shipments to insure that all
material accepted for disposal meets the exempt requirements.
---------------------------------------------------------------------------
\1\ None of the existing LLRW disposal facilities are licensed
under 10 CFR Part 61. The Hanford and Barnwell facilities were licensed
before Part 61 was adopted and the Envirocare facility is not licensed
as a Part 61 disposal facility by the State of Utah.
---------------------------------------------------------------------------
The following low-activity radioactive materials are classified as
exempt from licensing under Texas regulations and can be disposed at
the WCS facility:
Source material from licensed or unlicensed facilities in
any physical or chemical form in which the Uranium and Thorium is <
0.05% by weight;
Rare earth metals, compounds, mixtures, or products
containing less than 0.25% by weight Thorium or Uranium;
Any finished product or part containing metal thorium
alloys with Thorium < 4% by weight.
Depleted Uranium in counterweights installed in aircraft,
rockets, projectiles, missiles, or used as a shielding material;
Various products manufactured under a specific license as
being exempt from licensing; and
Naturally Occurring Radioactive Materials (NORM)
containing technologically enhanced radium-226 or radium-228 at less
than 30 pCi/gm or any other NORM radionuclide less than 1 50 pCi/gm.
The WCS facility can also accept certain source material and NORM
for disposal even if the generating facility was licensed by the NRC.
This has been authorized by a policy adopted by the NRC that allows
licensed facilities to ship certain source material without being
manifested as LLRW to the WCS facility for disposal without further
approval from the NRC. NORM disposal is regulated by the states, and
those states that regulate NORM accept the Texasdisposal regulations by
reciprocity.
WCS' RADIATION PROTECTION PROGRAM
A comprehensive environmental monitoring program is conducted at
the WCS Facility under the requirements of the various existing RCRA
and TSCA permits and the radioactive waste license.
The facility includes an onsite, EPA-approved analytical laboratory
that is capable of performing various testing required for verifying
the characteristics of hazardous and TSCA waste and also determining
that the waste meets the RCRA leachability requirements after
treatment. There is also a radiation counting laboratory that is
capable of performing gamma spec and scintillation counting for
confirmatory, survey, and general radiation protection purposes.
All work at the WCS facility involving the handling of any
radioactive material is controlled by specific procedures and an
approved Radiation Work Permit (RWP). All site design, operations and
record keeping activities are controlled under a Nuclear Quality
Assurance Program. All radioactive and hazardous material is shipped to
the WCS facility in U.S. Department of Transportation (DOT) approved
containers or meet DOT bulk shipping requirements. A Texas hazardous
waste shipping manifest is required to document and certify the
contents of each shipment. This manifest is used to certify that all
waste shipments contain only radionuclides that meet Texas exempt
levels. Receipt surveys are performed on all shipments, and samples may
be taken on certain packages to verify compliance with all waste
acceptance requirements. Exempt level radioactive material that does
not contain RCRA or TSCA regulated materials, or that meets the RCRA
requirements for disposal, is be immediately transported to the WCS
onsite RCRA/TSCA disposal cell for final disposition.
Exempt material containing RCRA constituents that require treatment
is temporarily stored in the transportation containers in approved
buildings awaiting staging for treatment and then moved to the
Stabilization building for treatment and/or stabilization to meet the
land disposal restrictions prior to disposal. Once received, the
materials do not leave the WCS permitted facility and are handled only
by appropriately trained and badged radiation workers. All operations
involving the handling of any radioactive material is performed under
the existing radiation safety program, regardless of the exemption
status of the materials to be disposed or handled. Analyses have been
performed which demonstrate that the treatment and disposal of exempt
level radioactive materials will result in an annual dose above
background that is less than 1 mrem/yr effective whole body dose to any
member of the public and workers.
WCS CONTRACTS AND FUSRAP MATERIAL DISPOSAL
In addition to private sector contracts, WCS is under contract to
the Department of Energy for mixed waste treatment, and with the Army
Corps Of Engineers (Corps) for the disposal of low-activity radioactive
waste, including waste from the FUSRAP program.
The WCS facility is authorized to dispose of the following FUSRAP
waste as exempt material under its RCRA permit and existing Corps
disposal contract:
RCRA/TSCA Waste with residual radioactive material.
low-activity Radioactive Waste--Uranium and Thorium less
than 0.05% by weight.
NORM Waste--less than 30 pCi/gm Radium and 150 pCi/gm any
other NORM radionuclide.\2\
---------------------------------------------------------------------------
\2\ Since the USNRC has determined that pre 1978 11e.(2) material
is not regulated under the Uranium Mill Tailings Act, the TDH regulates
this material for disposal purposes in Texas as NORM waste.
---------------------------------------------------------------------------
To date, more than 500,000 cubic feet of exempt-level material has
been disposed of at the WCS facility. Approximately 10 percent of this
volume has been from FUSRAP sites.
The Corps, WCS, and TDH staff has developed an excellent working
relationship and a model process for approval of FUSRAP waste disposal
at the WCS facility. The Corps' responsible district and its contractor
determine if the waste meets WCS acceptance criteria and then send a
letter, with detailed characterization data attached to the TDH, for
each FUSRAP waste stream to request approval for disposal at WCS. If
the TDH approves the request as meeting Texas exemptions, the Corps
completes and sends a waste profile sheet to WCS for approval. If that
profile sheet meets the WCS acceptance criteria, an authorization to
ship letter is issued to the Corps.
Scientific analysis and experience to date clearly demonstrate that
low-activity FUSRAP waste can be disposed of at permitted RCRA disposal
facilities safely and that such disposal provides the equivalent public
health and safety protection of disposal at licensed low-level
radioactive waste disposal facilities. Various studies have shown that
the long-lived toxicity of RCRA waste is comparable to low-level
radioactive waste. RCRA disposal facility requirements meet or exceed
NRC's 10 CFR Part 61 requirements in the following areas relating to
design and institutional control:
Active maintenance--RCRA requires a minimum of 30 years,
versus five years for Part 61;
Deed restrictions--RCRA has deed restriction requirements
that prevent disturbing the cover after the Facility has been closed;
Part 61 has no such requirements;
RCRA facilities must meet prescriptive design requirements
that include double liners, minimum permeability standards, and
leachate collection and monitoring systems; Part 61 does not contain
facility design requirements.
In addition, the WCS Facility includes a five-meter engineered
cover which satisfies the NRC Part 61 intruder barrier requirement for
Class C low-level radioactive waste. The WCS facility permits and
licenses also require various financial assurance instruments that
provide for equivalent levels of funding for site decommissioning and
closure, site maintenance, and monitoring after closure, liability
protection, and cleanup and removal of all waste stored on site under
the license, if WCS cannot perform this activity.
These multiple layers of engineering and regulatory protection, in
combination with appropriate financial assurance mechanisms, ensure
that the disposal of low-activity FUSRAP wastes at permitted RCRA
facilities provides significant and appropriate protection of public
health and safety. In addition, the use of such facilities provides the
opportunity for significant savings for government disposal operations.
It has been estimated that the safe disposal of FUSRAP material at
permitted RCRA facilities will reduce overall program disposal costs by
as much as $100 million, while fully maintaining protection of public
health and safety.
conclusion
The WCS Facility offers unique features that enhance long term
waste isolation and liability protection. These include:
Superior geology that enhances long-term waste isolation.
State-of-the-art technology, design, and engineering.
The only RCRA disposal facility permitted post land
disposal restriction regulations.
A comprehensive radiation safety program covering all
operations.
An unprecedented level of political and public support for
all activities.
The disposal of FUSRAP wastes at the WCS site is a safe,
environmentally sound use of a permitted RCRA Facility and provides
protection of public health and safety that is equivalent to that which
might be provided by an NRC licensed facility.
______
Envirocare of Utah, Inc.,
Salt Lake City, Utah, August 2, 2000.
Hon. Bob Smith, Chairman,
Environment and Public Works Committee,
Washington, DC.
Re: FUSRAP Waste Management
Dear Chairman Smith: I am the president of Envirocare of Utah, Inc.
(Envirocare) which is fully licensed by the U.S. Nuclear Regulatory
Commission (NRC) to receive and dispose the type of waste--11e.(2)
byproduct uranium mill tailings--that the U.S. Army Corps of Engineers
(USACE) is cleaning up at various sites under the Formerly Utilized
Sites Remedial Action Program (FUSRAP). As a follow-up to the July 25
hearing held in your committee on disposal of low-activity radioactive
waste, I would like to offer my perspective on the FUSRAP program. I
respectfully request that this letter be included in the of official
written record for this hearing since I address issues such as disposal
costs that were discussed at the hearing.
FUSRAP wastes are radioactive uranium mill tailings that exceed the
criteria for contamination at sites at which they are currently
located. The Government has required these wastes to be cleaned up and
shipped off-site for safe disposal, because they contain unacceptably
high concentrations of radionuclides. Envirocare has received wastes
from several FUSRAP sites, and the following table illustrates some of
the levels of contamination that have been documented through the waste
profiling process used to accept these wastes at our facility.
----------------------------------------------------------------------------------------------------------------
Site--Location Uranium Radium-226 Thorium-232 Thorium-230
----------------------------------------------------------------------------------------------------------------
(pCi/g) Low High Avg. Low High Avg. Low High Avg. Low High Avg.
----------------------------------------------------------------------------------------------------------------
Wayne, NJ 4.25 3,280 200 99 8,805 346 1.14 9,246 797 1.14 1,580 172
St. Louis,1MO 95,000 240 1 5,400 6 1 700 3 1 98,000 32
Hazelwood, MO ND 4,000 42 ND 4,923 20.5 ND 440 2.6 ND .282 120.8
Tonawanda, NY 0.32 2,973 1,490 ND 7.4 3.9 ND 3.54 1.8 ND 320.6 160.3
----------------------------------------------------------------------------------------------------------------
ANote: Uramum--238 reported for Tonawanda, NY
AND--Not detected
As shown by these data, the radiological contamination present in
FUSRAP wastes varies. While the low end of the concentration range may
lull some people into stating that the material is not very hazardous,
the average and maximum concentrations cannot reasonably be dismissed
as being without risk. We have asked Dr. Alan Fellman who is an expert
in radiological hazards associated with these types of materials to
review issues associated with the disposal of FUSRAP wastes. For the
reasons set forth in his analysis, a copy of which I have enclosed for
your review. Dr. Fellman believes that the disposal of FUSRAP wastes
should be fully regulated by the NRC.
In 1978, Congress enacted a program to regulate the management and
disposal of radioactive mill tailings--the Uranium Mill Tailings
Radiation and Control Act (UMTRCA). During the debate on the passage of
UMTRCA, the health, safety and environmental risks associated with
radioactive uranium mill tailings were evaluated. As reported in the
hearing before the Subcommittee on Energy and Power of the Committee on
Interstate and Foreign Commerce of the House of Representatives,
uranium mill tailings pose a perpetual hazard to the environment and a
potential and significant radiation health hazard. The Committee
reported the purpose of UMTRCA as follows:
The [UMTRCA], as proposed, is intended to protect the public
health and safety and the environment from hazards associated
with wastes from uranium ore milling process. If enacted, the
legislation will require every reasonable effort to be made by
the States, the Federal Government, and private industry to
provide for the disposal, stabilization and control in a safe
and environmentally sound manner of such tailings to prevent or
minimize the diffusion of radon or the entry of other hazards
into the environment.
Under UMTRCA, Congress created a comprehensive management program
for uranium mill tailings. The NRC created a licensing process to be
used by parties seeking authority to commercially dispose of this
material. Envirocare's uranium mill tailings disposal facility was
licensed by the NRC in 1993 in accordance with this overall program.
The NRC also performed a full National Environmental Policy Act (NEPA)
review of the proposed licensing action at Envirocare and published an
Environmental Impact Statement (EIS). The NRC's licensing process
assures that disposal facilities are:
Properly sited to assure isolation from environmentally
sensitive areas;
Properly designed to standards that would reasonably
assure that the facility would be effective for 1,000 years;
Properly managed by assuring that it had a radiation
safety program that meets the requirements of 10 CFR Part 20 and the
proper staff to administer the program;
Properly track waste shipments through the use of
radioactive waste manifests;
Properly monitored to assure that it could detect
emissions to the air, land, and ground water; and
Properly financed by requiring that an adequate financial
surety fund was provided to assure that the NRC could complete closure
and long-term surveillance of the facility, if required.
The Department of Energy (DOE) had responsibility for FUSRAP before
the program was transferred to the USACE in 1998. The consensus among
Envirocare, Utah regulators, the NRC, and DOE was that in order to
receive FUSRAP wastes for disposal, Envirocare was required to be
licensed by the NRC. Envirocare worked with these agencies to comply
with all requirements to legally accept and dispose of FUSRAP uranium
mill tailings. Envirocare's license requires it to implement
comprehensive programs to assure that its workers, the public, and the
environment are not harmed during the active management of these wastes
and during the long-term surveillance period following closure of the
facility. At no time during Envirocare's licensing process did the NRC
ever suggest that uranium mill tailings generated before 1978 could be
disposed of at an unlicensed facility.
After the USACE took over FUSRAP from the DOE, it asked the NRC for
an interpretation of UMTRCA that would allow it to dispose of FUSRAP
uranium mill tailings at facilities not licensed by the NRC. An
attorney in the NRC's Office of General Counsel (OGC) replied to the
USACE that since Congress did not explicitly include existing uranium
mill tailings in the mandatory licensing section (section 83a.) of the
Atomic Energy Act (AEA), as amended by UMTRCA, the NRC did not have
authority to regulate these wastes. The USACE seized upon this
interpretation by the NRC to dispose of FUSRAP wastes in facilities
that are not licensed for radioactive waste disposal.
Since the NRC OGC's interpretation was issued, the USACE has
disposed of FUSRAP wastes at several Resource Conservation and Recovery
Act (RCRA) facilities that are not regulated for the disposal of
radioactive waste. However, RCRA does not contain any requirements or
guidelines for the handling of radioactive materials. Such requirements
are in the AEA and in regulations promulgated and enforced by the NRC.
Indeed, RCRA cannot govern radioactive wastes, because RCRA, by its own
terms provides that it is inapplicable to byproduct material as defined
by the AEA. 42 USC sec. 6903 (27).
Envirocare firmly believes that the NRC's interpretation is wrong,
and we have filed a 2.206 Petition with the agency requesting it to
overturn its interpretation. Further, the USACE's implementation of
this interpretation in its disposal of FUSRAP waste in RCRA facilities
is wrong, because such facilities are not designed, operated, or
regulated for radioactive waste disposal.
Based on our review of the law it is clear that Congress never
intended to limit the application of the unambiguous requirements of
sections 81 and 84 of the AEA which, respectively, require the NRC to
manage any 11e.(2) byproduct material (uranium mill tailings), and
prevent any person from possessing 11e.(2) byproduct material without
being licensed.\1\ Further, section 84 was intended to fill regulatory
gaps in UMTRCA and makes clear that Congress wished to regulate all
mill tailings in a comprehensive manner. That is not to say that
Congress specifically focused on FUSRAP. Rather, Congress intended to
regulate everything that satisfied the definition of section 11e.(2) of
the AEA. Certainly, Congress did not intend to exclude a significant
category of tailings from the reach of the statute, as the NRC's
interpretation does. Further, Congress considered uranium mill tailings
to be a serious health and safety problem that required NRC regulation.
Any interpretation that places a significant category of such tailings
beyond the reach of the NRC therefore runs counter to Congress's intent
to protect public health and safety.
---------------------------------------------------------------------------
\1\ These arguments are fully set forth in the 2.206 Petitions
filed with the NRC by Envirocare and an Idaho environmental advocacy
group, the Snake River Alliance.
---------------------------------------------------------------------------
The NRC's interpretation has led to a nonsensical designation of
uranium mill tailings byproduct material as pre-1978 and post-1978.
Virtually all FUSRAP waste was generated before 1978, so it falls under
the ``pre-1978'' designation. The basis for regulating radioactive mill
tailings has not changed, nor are the tailings in the FUSRAP program
different (any less radioactive) than those that the NRC requires to be
regulated by UMTRCA. There is no difference between pre- and post-1978
uranium mill tailings. There is no sound policy or technical reason why
FUSRAP materials should be excluded from a program that clearly covers
all uranium mill tailings existing in the United States.
Notwithstanding the foregoing arguments as to why the NRC's
interpretation of the law is wrong, it also is important to understand
that under the NRC's interpretation, no one has authority to regulate
the disposal of so-called ``pre-1978'' section 11e.(2) mill tailings.
Both the NRC and the USACE have indicated that the NRC's lack of
authority over such pre-1978 11e.(2) mill tailings is not troublesome,
because the tailings are subject to regulation under other federal and
state laws. Yet, because the AEA preempts the field of nuclear safety
regulation for such materials, they are not subject to any other
regulation (including purported state regulation) intended to protect
against radiation exposure. Moreover, such materials are not within the
Environmental Protection Agency's (EPA) jurisdiction under RCRA. Thus,
the NRC's current interpretation of the relevant statutes leaves the
disposal of these materials entirely unregulated.\2\
---------------------------------------------------------------------------
\2\ This argument is fully set forth in the Supplement to Petition
under 10 C.F.R. Sec. 2.206 Regarding NRC Interpretation of Uranium Mill
Tailings Radiation Control Act that we have filed with the NRC.
---------------------------------------------------------------------------
Further, I would like to address the USACE's representation that
the cost to dispose of these wastes at a licensed facility is 2 to 10
times more expensive than at an unlicensed facility. The facts simply
do not support this assertion. The USACE solicited bids to perform
disposal of FUSRAP and other wastes and awarded its Multi-Award
Disposal Contract in 1999. The USACE's solicitation for the disposal of
FUSRAP waste referred to that material as ``11e.(2) Materials generated
prior to November 8, 1978. . . . This material is not subject to
regulation under the Atomic Energy Act authority.'' Based upon the
offers it received, the USACE awarded contracts for the disposal of
this waste to both Envirocare and to EnviroSafe Services of Idaho, Inc.
(EnviroSafe) which operates a RCRA hazardous waste disposal facility.
Under these contracts, the USACE's disposal cost per cubic yard for
radioactive FUSRAP soils delivered in gondola rail cars is $103 for
Envirocare and $83 for EnviroSafe. (The EnviroSafe price includes a
transload fee of $13 per cubic yard to ship the waste from a railroad
transfer facility to its site. Envirocare has rail access directly into
its site, so there is no additional transfer cost.) Thus, Envirocare's
price is 24% more than EnviroSafe's, not 2 or 10 times (200% to 1000%)
more. These are the prices that are relevant for the vast majority of
FUSRAP wastes. Using other prices or scenarios does not accurately
reflect the costs that the USACE incurs by using these two disposal
facilities.
The difference in the disposal prices at the two facilities is
attributable to the difference in the performance characteristics.
Envirocare's price reflects the added health and safety and other
programs that are required to comply with its NRC license, which are
the requirements implemented by the NRC to assure that UMTRCA is
properly implemented. Assuring that a site is properly sited, designed,
monitored, managed, and funded may result in a higher price, but these
requirements are necessary to assure that workers and the public are
protected and that the materials will not become a high cost liability
in the future.
Further, Envirocare has ample capacity to dispose of FUSRAP wastes
fromthroughout the country. For example, we have unloaded as many as 66
gondola railcars a day, and we have disposed of as much as 60,000 cubic
yards of 11e.(2) waste in a three-month period. For comparison
purposes, the USACE's St. Louis FUSRAP budget has supported disposal of
only 60,000 cubic yards in a year. Any notion that the use of NRC-
licensed facilities for the disposal of FUSRAP waste will, somehow,
slow down the Army Corps' remediation of these sites is not based in
reality.
In closing I would like to reiterate the need to properly manage
FUSRAP wastes in NRC-licensed facilities. The protection provided by a
facility specifically licensed to receive and dispose of radioactive
wastes assures that both present and future generations of Americans
are protected from the health risks associated with these materials.
The slightly higher costs attendant to these facilities are well worth
the additional health and environmental protections they provide.
I appreciate your consideration of my views. The NRC's legal
interpretation and the USACE's implementation of that interpretation
are wrong on both policy and health and safety grounds, and I urge your
Committee to address this situation as soon as possible. If you have
any questions or if you would like additional information, please let
me know. Thank you.
Very truly yours,
Charles A. Judd.
__________
Safety-Kleen Corp.,
Columbia, SC, August 4, 2000.
Hon. Robert C. Smith, Chairman,
Senate Committee on Environment and Public Works,
Washington, DC.
Dear Chairman Smith: On behalf of Safety-Kleen Corp., the largest
hazardous and industrial waste management firm in North America, I
would like to thank you for conducting the July 25, 2000, hearing on
the disposal of low-activity radioactive waste. In general, I believe
the hearing shed much-needed light on the facts surrounding the safe,
cost-effective and environmentally sound disposal of very low-activity
FUSRAP wastes at facilities permitted by states pursuant to the
Resource Conservation and Recovery Act.
I was deeply disappointed, however, that attacks were made on
Safety-Kleen's Buttonwillow secure landfill regarding its receipt of
FUSRAP wastes for disposal, and I respectfully request that this letter
and the attached materials be included in the record in rebuttal to the
erroneous statements made.
In addition to the issues set forth in my July 21, 2000, letter to
you, which is attached, three other equally troubling, and equally
false, allegations were raised during the hearing:
1. One member of the Committee stated that Safety-Kleen has gone
``busto,'' an apparent reference to Safety-Kleen's filing for
protection under Chapter 11 of the U.S. Bankruptcy Code. Safety-Kleen
has sought such protection, but two points are essential:
Safety-Kleen is not going out of business. We are
maintaining normal business operations at all our facilities while
reorganizing. We entered Chapter 11 as the largest hazardous and
industrial waste management firm in North America, and it is our
intention to emerge from Chapter 11 in the same capacity.
All of Safety-Kleen's financial assurance mechanisms and
obligations remain in place and in force. Safety Kleen remains
responsible under the law for its facilities--for the safe operation,
closure, and post-closure care as required by our permits--and Safety-
Kleen will honor those responsibilities.
2. It was alleged that the FUSRAP waste Safety-Kleen disposed of is
now ``too dangerous to move.'' This is a gross mischaracterization. The
waste is identifiable and could be removed, but doing so would
necessarily result in some incremental, additional worker exposure to
both radioactive and hazardous substances, while providing no public
health and safety or environmental benefit. The material is safely
disposed of and extensive analysis and monitoring by the State of
California post-disposal concludes that there is no short- or long-
term risk to the public or the environment from this material. There is
no scientific, safety or environmental reason to move this waste.
3. It was alleged that Safety-Kleen workers were not told they were
handling radioactive materials. Since the Safety-Kleen Buttonwillow
facility routinely receives low-activity radioactive waste for
disposal, and has done so for more than a decade, all workers managing
waste at the facility receive radiation protection training on a
regular basis. The radiation protection training manual, which we are
not submitting for the record due to its approximately 1,000 pages of
material (but which we would be pleased to submit to the Committee if
so requested), is comprehensive and meets the criteria proscribed in
OSHA 29 CFR 1910.1096. In fact, this program actually requires a lower
annual exposure rate for our workers (100 mrem/yr) than that allowed
for workers at an NRC licensed facility (500 mrem/yr). In addition, all
materials received for disposal are tested at the facility gate to
ensure conformity with the manifest. The FUSRAP material was
specifically tested for radioactivity.
Attached are the following documents:
My July 21, 2000, letter to you providing factual
information regarding the permitting of the Buttonwillow facility and
the disposal of FUSRAP materials at that facility.
A May 9, 2000 letter, with attachments, to Julie Anderson
of EPA Region IX documenting the erroneous nature of statements made by
Ms. Anderson in a December 17, 1999, letter to Bryan Bone of the Buena
Vista (CA) Resource Conservation District. Many similar erroneous
statements were made during the July 25, 2000, hearing. The Safety-
Kleen letter corrects and documents Ms. Anderson's numerous factual,
legal and scientific errors and seeks retraction of her letter.
A copy of the January 6, 2000, letter to Senator Boxer
from Winston Hickox, Secretary of the California EPA, attaching the
Agency's August 25, 1991, letter to California Assemblyman Dean Florez
concluding that the disposal of FUSRAP wastes at Safety-Kleen's
Buttonwillow facility did not violate RCRA and that the material poses
no short- or long-term public safety or environmental concerns.
I would greatly appreciate your inclusion of these documents in the
hearing record, and we look forward to working with you should the
Committee decide to pursue these issues further. If you have any
questions or concerns, please do not hesitate to contact me at 803-933-
4202 or Safety-Kleen's Washington representative, John Kyte, at 202-
530-4557.
Sincerely,
Grover Wrenn,
Chief Operating Officer.
______
Attachments
Safety-Kleen Corporate HQ,
Columbia, SC, July 21, 2000.
Hon. Robert C. Smith, Chairman,
Senate Committee on Environment and Public Works,
Washington, DC.
Dear Chairman Smith: As you approach next week's hearing on the
disposal of wastes from the Formerly Utilized Sites Remediation Action
Project (FUSRAP), I would like to mention a few items of concern to
Safety-Kleen, the largest hazardous and industrial waste management
firm in North America.
I understand from my staff that your interest in these issues is
focused on public health and safety and the implications of the
statutory designation under which some FUSRAP wastes are regulated by
the Nuclear Regulatory Commission and other such wastes are not. I
agree that this is an appropriate issue for Congressional inquiry, and
we are supportive of efforts to develop an approach to disposing of
these wastes that is based on potential public health and safety
concerns.
My primary concern with regard to the hearing is the potential for
it to be diverted from the public policy focus and onto Safety-Kleen's
Buttonwillow, CA, secure hazardous waste landfill. I am sure you are
aware that concerns have been raised regarding our receipt of FUSRAP
wastes at that facility. But I must in all candor tell you that those
concerns are not based on an accurate or factual understanding of the
permits held by our facility or of the state and federal approval
process leading up to our receipt of those wastes. This remains so
despite our best efforts to educate our critics and provide them with
documentation supporting our position.
The facts are as follows:
Safety-Kleen's Buttonwillow facility is a RCRA Subtitle C
landfill fully permitted by the State of California to receive low-
activity radioactive wastes containing up to 2,000 picocuries per gram
of residual radiation.
The Buttonwillow facility was sited, designed, constructed
and permitted specifically with such wastes in mind.
The facility has been receiving such wastes, primarily
from the oil industry, for more than a decade without concern or
objection.
The State of California was fully apprised of, and
approved, our receipt of 2,200 tons of FUSRAP wastes, which averaged
353 picocuries per gram, considerably lower than many of the wastes we
have previously received and disposed of without objection.
The FUSRAP wastes are no different radiologically from any
of the other types of low-activity wastes, commonly called NORM
(naturally occurring radioactive material) wastes, that we have
received in the past.
In addition, since we received the FUSRAP wastes, the State of
California has reviewed the approval process and conducted an extensive
on-site review of the disposal activities, and determined that the
disposal of FUSRAP wastes was proper and poses no short or long-term
public health and safety concern. A copy of the joint letter from the
Secretaries of the California Department of Health Services and the
California Environmental Protection Agency is attached.
As a company whose livelihood depends on strict compliance with all
applicable laws, it is most distressing for Safety-Kleen to be
repeatedly attacked, as we have been, particularly when those attacks
are based on erroneous or incomplete information. We are concerned that
such inaccurate or erroneous information may surface again during the
hearing next week, and I simply wanted you and other members of the
Committee to know the facts prior to the hearing. We have previously
shared with Committee staff the full set documents that support our
position, should you desire to see them.
If you have any questions or concerns, please do not hesitate to
contact me at 803-933-4202 or Safety-Kleen's Washington representative,
John Kyte, at 202-530-4557.
Sincerely,
Grover Wrenn,
Chief Operating Officer.
______
Safety-Kleen Corp.,
Columbia, SC, May 9, 2000.
Ms. Julie Anderson, Director,
U.S. EPA Region IX,
San Francisco, CA.
Re: Response to December 17, 1999, USEPA letter to Mr. Bryan Bone of
the Buena Vista Resource Conservation District, Regarding the
Acceptance of FUSRAP Waste from the U.S. Army Corps of Engineers by
Safety-Kleen at the Permitted RCRA Subtitle C Landfill near
Buttonwillow, CA [EPA ID No. CAD980367965]
Dear Ms. Anderson: I am writing in regard to your letter of
December 17, 1999 to Mr. Bryan Bone of the Buena Vista Resource
Conservation District in Kern County, California. Your letter was in
response to Mr. Bone's letter to President Clinton dated September 21,
1999. These two letters concern the acceptance of approximately 2,200
tons of building debris (i.e., wood, concrete, and asbestos) containing
residual low-activity radionuclides by the Safety-Kleen (Buttonwillow),
Inc. RCRA Subtitle C permitted disposal facility from the United States
Army Corps of Engineers that was generated at the Linde Site, in
Tonawanda, NY, under the Formerly Utilized Sites Remedial Action
Program (FUSRAP).
Your letter contains several statements and/or conclusions that are
either partially or wholly inaccurate, and several important
developments regarding this disposal activity that could have or should
have been known to you are entirely omitted. The end result is a letter
that is factually inaccurate and highly misleading. That letter is now
being used by activists and candidates for elected office to portray
Safety-Kleen in an unfair, negative manner. Your letter has just now
come to our attention, a fact that is disturbing in its own right, and
I am requesting that you review the information provided below and send
a letter of correction to Mr. Bone and any other parties that may have
received the December 17, 1999 letter.
There are five primary issues with which Safety-Kleen has concerns:
(1) compliance with our RCRA hazardous waste permit; (2) the knowledge
and pre-approval of receipt of this waste by the State of California
prior to its shipment to Safety-Kleen; (3) the wholly inaccurate use of
the term ``low-level'' radioactive material to describe this waste; (4)
the scientifically and legally insupportable distinction implied
between concentrated naturally occurring radioactive materials (NORM)
``and manmade'' low-level radioactive residues; and, (5) the allegation
that ``Safety-Kleen may have incorrectly characterized the waste as
NORM.''
1. Compliance with our RCRA Permit.--Safety-Kleen's Buttonwillow
disposal facility is fully and properly permitted by the California
Department of Toxic Substances Control (DTSC) to receive and dispose of
a variety of low-activity radioactive wastes, regardless of origin, so
long as such material is below a certain level of radioactivity and not
under the purview of the U.S. Nuclear Regulatory Commission (NRC). In
an August 25, 1999 letter, cosigned by Mr. Winston Hickox, Secretary of
Cal/EPA and Mr. Grantland Johnson, Secretary of Health and Human
Services, on behalf of Gov. Gray Davis, the State of California clearly
stated that Safety-Kleen complied with the provisions of it's RCRA
Permit in accepting and disposing of the Linde wastes. This letter was
also sent to Sen. Barbara Boxer on January 6, 2000, a fact which even a
cursory investigation of the issues would have revealed. (See
Attachment No. 1.) As you will note, the State of California explicitly
stated the following conclusions:
DTSC has not found any violations--of the Resource
Conservation and Recovery Act (RCRA) hazardous waste facility permit
which DTSC issued--by the company in accepting these shipments. The
RCRA permit for this facility allows the disposal of wastes containing
less than 2000 picocuries per gram that are not regulated by the
Nuclear Regulatory Commission (NRC).
There is no short-term risk to public health or the
environment from this waste based on a full-site survey by DTSC and
DHS. That survey found absolutely no radiation above background levels;
Neither DTSC nor the Regional Water Quality Control Board,
the Cal/EPA department charged with implementing the Clean Water Act
and related water quality and groundwater protection laws and
regulations, have any reason to expect any long-term environmental
problems stemming from the disposal of this waste, and that ``the
facility was designed and constructed, with oversight and approval from
these Cal/EPA organizations, to prevent toxic materials from migrating
to groundwater;''
The design of the landfill liner system at the Safety-
Kleen facility is more than is required by State and Federal
environmental laws and regulations;
The facility has an ``extensive system of groundwater
monitoring, including an advanced neutron probe system, to assure that
the wastes do not migrate to groundwater. In its 18 years of operation,
no releases to groundwater have been found anywhere at the facility.''
2. Notification by Safety-Kleen to DHS-RHB Prior to Accepting the
Linde Site Waste.--You state: ``The low-level radioactive material was
apparently shipped and buried without the knowledge or approval of the
RHB'' (the DHS Radiologic Health Branch). This statement is wholly
incorrect. First, the waste is not ``low-level'' radioactive material
as defined by State and Federal law and regulation. Second, written and
verbal notifications and disclosures were made to both DHS and DTSC
regarding this project a full month prior to the acceptance of any
FUSRAP wastes at the Buttonwillow facility. The issue regarding the
definition of ``low-level radioactive waste'' is discussed below. As
for notification of the State of California, Safety-Kleen officials
specifically discussed this Linde Site project with the appropriate
officials from both Cal/EPA and the California Department of Health
Services--Radiologic Health Branch (DHS) approximately 1 month prior to
the start of the Linde Site waste shipments, and memorialized those
discussions in an explicit letter of understanding to all parties dated
October 21, 1998. (See Attachment No. 2.) The first shipment of this
waste did not arrive at the Buttonwillow facility until late November
1998.
The October 21, 1998 letter from Safety-Kleen to both Gerard Wong
of DHS-RHB and Tony Hashemian of DTSC verified acceptability of the
disposal of the Linde Site waste at the Buttonwillow site as long as:
(1) the waste met the conditions of RCRA Permit Condition II.C.1.A.
(i.e., NRC-exempt low-concentration radioactive waste up to 2,000
picocuries per gram); and (2) the waste was cleared by the appropriate
authority for this project, such as the Nuclear Regulatory Commission.
Mr. Gerard Wong is the Chief of Licensing at the DHS-RHB, and is thus
the appropriate contact for such projects.
Approximately 6 months after this notification, Mr. Ed Bailey,
chief of RHB, received an inquiry from Mr. Paul Merges of New York's
RHB regarding California's approval of the disposal of the FUSRAP
wastes. Due to an apparent breakdown in internal communications, Mr.
Bailey was apparently unaware of the oral and written notification from
Safety-Kleen, which prompted Mr. Bailey's factually and legally
incorrect letter to Safety-Kleen on March 10, 1999. (See Attachment No.
3). That letter was received on the same day the last shipment of Linde
Site wastes was placed into the RCRA Subtitle C landfill at the
Buttonwillow facility.
The record is clear that the appropriate State of California
agencies were fully and properly notified of the nature, origin and
intended disposal of the Linde Site wastes at Safety-Kleen's
Buttonwillow facility. That Mr. Bailey may not have been personally
aware of that notification is irrelevant.
3. The Inaccurate use of the Term ``Low-Level Radioactive
Waste.''--Your letter makes numerous references to the Linde Site
wastes as ``Low-Level'' radioactive material or waste. ``Low-Level''
waste is a term of art, defined under Federal and State law. It is not
a catch-all phrase, and to use it as such is both inaccurate and highly
misleading. An illustrative analogy would be to call all solid waste
``RCRA Hazardous Waste''(i.e., while all ``low-level'' waste is in fact
``radioactive material/waste'', not all ``radioactive material/waste''
is ``low-level.'') Low-level radioactive waste can only be disposed of
in facilities licensed pursuant to the authority of the U.S. Nuclear
Regulatory Commission (NRC), whether exercised by the NRC directly or
by a State under the Agreement State Program. The Linde Site waste
received by Safety-Kleen waste is not ``low-level'' radioactive
material or waste.
With specific regard to Safety-Kleen, the NRC has taken the
position that an NRC license is not required for the disposal of FUSRAP
waste from the Linde Site. (See Attachments Nos. 4 and 5.) In rejecting
petitions from both the Natural Resources Defense Counsel and the
Conference of Radiation Control Program Directors, NRC has specifically
stated that the U.S. Army Corps of Engineers, its subcontractors or
disposal facilities, are not required to be licensed under NRC
authority. The NRC Director's Decision under 10 C.F.R. Sec. 2.206
(published April 5, 1999) clearly proscribed NRC from exercising
regulatory authority over FUSRAP sites. Further, the NRC has concluded
that it had no rules or regulations which would preclude disposal of
certain FUSRAP waste at a permitted RCRA Subtitle C site, such as the
Buttonwillow facility.
The information provided to Safety-Kleen by the U.S. Army Corps of
Engineers and/or its subcontractor Radian International established
that the Linde Site waste disposed of at the Safety-Kleen Buttonwillow
facility was: (1) not NRC-licensed material; (2) at recorded
concentrations of less than 2,000 picocuries per gram; and (3) not NRC-
regulated ``source material'' under section 11(e)(2) of the Atomic
Energy Act.
Therefore, this material cannot in any context be properly called
``low-level'' radioactive waste or material, and EPA's repeated misuse
of that term has been of significant negative consequence to Safety-
Kleen.
4. The Acceptance of Concentrated NORM by Safety-Kleen.--Your
letter implies that the residual low-activity waste from the Linde Site
is somehow not NORM (naturally occurring radioactive material) because
it is ``manmade.'' However, the term manmade is of no relevance, either
scientific or legal, with regard to radioactive wastes or materials.
The term ``manmade'' does not come from a statute, regulation or
scientific reference--it is a fiction. While the term NORM has caused
some confusion among those who seek to give it a literal meaning, your
December 17, 1999, letter does accurately provide examples of
concentrated NORM wastes that the Buttonwillow facility has
historically accepted in a legal and safe manner since the early 1980's
when it was first permitted: ``Examples of material containing
naturally occurring radioactivity include oil and gas production
equipment such as pipes, pumps, oil flow lines, manifold piping,
valves, meters, screens and filters.'' These examples are also
consistent with the EPA's Office of Air & Radiation Guidance Document,
dated April 29, 1993, entitled ``Diffuse NORM Wastes--Waste
Characterization and Preliminary Risk Assessment''. This Guidance
Document also specifically cites FUSRAP projects as ``. . . currently
being managed under several Federal programs implemented specifically
to mitigate potential public health and environmental impacts from
numerous NORM contaminated sites.'' (See Attachment No. 6.)
NORM is a term that lacks statutory definition and is just now
being examined by State and Federal agencies that may be considering
some future effort at promulgating NORM regulations. The EPA itself is
currently in the process of developing a new ``TENORM'' website. In the
current TENORM website home page, EPA states: ``Until recently, TENORM
was referred to simply as NORM (naturally occurring radioactive
materials). `Technologically enhanced' was added to distinguish clearly
between radionuclides as they occur naturally and radionuclides that
human activity has concentrated or exposed.''
California does not define or regulate NORM, despite its ubiquitous
presence in the environment, especially in oil exploration, production
and refining operations in California's Kern County, where Safety-
Kleen's Buttonwillow facility is located. In fact, the facility was
sited in Kern County due in large part to the disposal needs of the oil
industry. While the Federal Government, including the Department of
Energy, NRC and the EPA (with the exception of the U.S. EPA's general
authority under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 as amended by the Superfund Amendments and
Reauthorization Act of 1986) have made it abundantly clear that they do
not regulate FUSRAP waste, it would appear that without effective NORM
regulations in California, DHS (like their Federal counterparts) lack
regulatory authority.
The California regulations contained in Title 17 C.F.R.
Sec. 30180(c)(1) State in part: ``The following concentrations and
quantities are exempt from these regulations and from licensing
requirements: Any naturally occurring radioactive material, except
source material, in concentrations which occur naturally.'' There is a
dearth of authority either in the Title 17 C.F.R. regulations,
California statute, or decisional law, regarding the definition of the
phrase ``which occur naturally.'' DHS has not promulgated regulations
defining NORM and providing NORM waste management guidelines for the
numerous sources of NORM waste generated in California. Nor has DHS
actively pursued any regulation of known NORM waste streams generated
during oil exploration, production and refining operations, geothermal
energy production, natural gas production, or the many other well-known
and documented sources of NORM contaminated wastes within California.
Each of the aforementioned NORM waste categories from the petroleum,
natural gas, geothermal and other industries produce NORM which has
been concentrated as scale and sediment in pipes, pumps, valves,
surface impoundments, or by other physical, mechanical and/or chemical
mechanisms that can concentrate NORM constituents during the production
process. The pertinent regulatory agencies (DHS, DTSC and RWQCB), and
the regulated industries in California, including waste generators and
disposal facilities, have operated for more than a decade with a
functioning understanding that the phrase ``which occur naturally'' in
Title 17 C.F.R. Sec. 30180(c)(1) includes mechanisms that can
concentrate the radiologic isotopes in the waste (e.g., scale
formation). This is consistent with your December 17, 1999, letter.
In addition, prior written communications between DTSC and DHS
regarding the management of radioactive wastes at RCRA disposal
facilities in California, DTSC stated that intent of a ``radioactive
waste prohibition'' in a RCRA permit only refers to ``NRC regulated''
radioactive wastes. (See Attachment No. 7.) In a discussion regarding
another Safety-Kleen RCRA facility, the permit for which contains a
prohibition on ``radioactive Materials and/or wastes,'' DTSC stated:
``This permit condition is intended to preclude the Facility's
acceptance of high level and low-level source wastes which are
regulated by the Nuclear Regulatory Commission under the Code of
Federal Regulations (CFR) Parts 10 and 20.'' The historical management
of concentrated NORM waste at this California RCRA Subtitle C landfill
was also discussed in this letter: ``The Facility historically and
presently accepts wastes from the petroleum and geothermal industries
which contain concentrated levels of Naturally Occurring Radioactive
Materials (NORMs)'' (emphasis added). Thus, the historic and continuing
acceptance of concentrated NORM wastes at California RCRA disposal
facilities is well established and has been formally acknowledged as
fact by the State of California.
A report prepared by the Conference of Radiation Control Program
Directors, entitled ``Report of the E-4 Committee on NORM Contamination
and Decontamination/Decommission--Report 3,'' specifically describes:
(a) uranium and thorium as NORM constituents, in addition to the
isotopes more common to oil, gas and geothermal production wastes; (b)
uranium milling/recovery as ``materials and activities known to be
associated with elevated NORM levels''; (c) that ``slags, sludges and
other loose NORM exceeding 2,000 picocuries per gram should go to a LLW
[low-level waste] disposal facility'' and that ``loose material
exhibiting between 30 picocuries per gram and 2,000 picocuries per gram
should go to a diffuse NORM disposal site''; and (d) that ``pipe
scale'' and other types of mechanically and/or chemically concentrated
forms of NORM radiologic isotopes are still defined simply as ``NORM''.
Finally, a recent report on TENORM prepared for the EPA by the
National Academy of Sciences, entitled ``Evaluation of Guidelines for
Exposures to Technologically Enhanced Naturally Occurring Radioactive
Materials,'' concluded
There was no evidence that the properties of NORM differ
from the properties of any other radionuclides in ways that would
necessitate the development of different approaches to risk assessment.
The differences between EPA proposed guidelines for TENORM
and similar guidelines developed by other organizations were judged not
to be based on scientific and technical information. On the basis of
the review conducted, ``these differences in the guidelines for TENORM
developed by EPA and other organizations were judged to be based
essentially on differences in policy judgments for risk management.''
Three things appear clear with regard to NORM wastes: (1) There is
an abundance of literature, much of it from the EPA itself, which
describes wastes that are radiologically similar to the Linde Site
FUSRAP waste as ``NORM''; (2) California's functioning definition of
``NORM'' is essentially the same as the U.S. EPA's definition (i.e.,
NORM = TENORM = NORM); and, (3) the handling of the FUSRAP NORM waste
is no different than the handling of NORM wastes received by Safety-
Kleen from oil and gas production equipment such as pipes, pumps, oil
flow lines, manifold piping, valves, meters, screens and filters--the
facility permit is blind to origin.
5. Safety-Kleen may have incorrectly characterized the waste as
NORM.--The Linde Site FUSRAP waste disposed of at the Safety-Kleen
Buttonwillow facility does not fit any definition of radioactive
material under the Atomic Energy Act. The waste could be described as
``pre-1978 11e.(2) byproduct material'' (a title not described in
statute or regulation), or as ``pre-1978 11e.(2) byproduct material
NORM waste,'' or simply as NORM or TENORM. What is of critical
importance to this situation is that the waste was not subject to
regulation under the AEA because it was generated by a non-NRC-licensed
facility (the Linde Site) prior to 1978, and therefore is not low-level
radioactive waste or low-level waste as defined by statute. (42 USC
2011 et. seq.)
Since this waste was not low-level radioactive waste, and because
its concentrations of radioactivity were very low, the U.S. Army Corps
of Engineers and its subcontractor, Radian International, applied a
generic definition of Naturally Occurring Radioactive Material
(``NORM'') to the Linde Site FUSRAP waste that was disposed of at the
Safety-Kleen Buttonwillow facility. Safety-Kleen relied upon the U.S.
Army Corps of Engineers' and Radian International's characterization of
the Linde Site FUSRAP waste as NORM, a characterization that was
consistent with Safety-Kleen's interpretation of the applicable
statutes and regulations.
Even though the Safety-Kleen Buttonwillow facility has discontinued
taking NORM waste from the FUSRAP program, the Army Corps of Engineers
continues to ship NORM waste from FUSRAP sites, including waste from
the Linde Site, to other RCRA-permitted facilities that do not possess
NRC or Agreement-State licenses for radioactive waste disposal. Over
the last 6 months, FUSRAP waste has been shipped by the Army Corps of
Engineers to RCRA Subtitle C landfills in Idaho and Texas under
approval from both Federal and State regulatory agencies. The State of
Texas specifically refers to this FUSRAP waste as ``NORM''. (See
Attachment No. 8.)
In conclusion, your letter of December 17, 1999, to Mr. Bryan Bone
of the Buena Vista Resource Conservation District, has caused
significant harm to Safety-Kleen, its customers and employees, and it
has caused unnecessary and unwarranted concern on the part of
California citizens and elected officials. The significance of the
factual, legal and scientific errors cannot be overstated, and the
damage cannot be undone by Safety-Kleen alone. Therefore, we request an
immediate retraction or clarification of the errors cited above, and an
apology for the ensuing confusion caused. Good public policy demands no
less.
Safety-Kleen is committed to compliance with all laws, regulations,
and permit conditions at all of our facilities, as well as an
overarching commitment to environmental protection. No other company in
North America has invested an equivalent level of resources to
protecting public health and the environment through the safe and
responsible management of toxic and hazardous wastes. Every year,
Safety-Kleen recycles, treats, and safely disposes of more hazardous
and toxic industrial wastes than any other company in North America.
With over 400,000 customers relying on Safety-Kleen to manage their
industrial wastes, we take our reputation very seriously and cannot
stand idly by when a Federal regulatory agency makes egregious mistakes
that cut to the core of that reputation.
I would be happy to discuss this issue in more detail with you and
your staff if necessary. Please do not hesitate to contact me at (803)
933-6430. Thank you.
Sincerely,
Phil Retallick,
Vice President of Corporate Compliance.
______
Additional Supporting Documents
February 6, 1998 letter from Richard Bangart of the NRC's
Office of State Programs to Paul Merges of the New York Department of
Environmental Protection--Bureau of Pesticides and Radiation;
April 21, 1999 letter of inquiry regarding FUSRAP from
Chairman Tom Bliley and Ranking Member John Dingell, of the U.S. House
of Representatives Committee on Commerce, to Lieutenant General Joseph
Ballard, of the U.S. Army Corps of Engineers, and General Ballard's
response dated May 21, 1999;
RCRA Hazardous Waste Facility Permit issued by the
California DTSC, dated April 6, 1996, and Waste Discharge Requirements
issued by the RWQCB, dated May 28, 1996;
Federal Register publication on April 5, 1999 of the NRC's
decision rejecting the petition by the Natural Resources Defense
Council dated October 15, 1998 regarding the U.S. Army Corps of
Engineers' handling of radioactive materials in connection with FUSRAP
sites;
Memorandum of Understanding between the Department of
Energy (``DOE'') and the U.S. Army Corps of Engineers dated March 19,
1999 delineating the responsibilities of these two parties over the 21
active remaining FUSRAP sites, including the Linde Site, whereby the
U.S. Army Corps of Engineers is charged with establishing cleanup
standards at active sites in consultation with Federal, State and local
regulatory agencies;
Documents received by Safety-Kleen from the U.S. Army
Corps of Engineers and/or its subcontractor Radian International,
reflecting analysis of the Linde Site FUSRAP waste indicating
concentrations of less than 2,000 picocuries per gram;
U.S. Army Corps of Engineers Issue Paper entitled ``FUSRAP
Waste Disposal Alternatives'' dated July 7, 1998, which lists
Buttonwillow, as well as 10 other RCRA Subtitle C facilities, as
suitable disposal facilities for FUSRAP waste such as the Linde Site
waste;
The U.S. Army Corps of Engineers' public affairs document
dated May 1999 reflecting the U.S. Army Corps of Engineers' position
regarding disposal of the Linde Site waste at the Safety-Kleen
(Buttonwillow), Inc. Facility;
Letter dated October 12, 1999 from Gregory Johnson of the
U.S. Army Corps of Engineers to Richard Ratliff of the Texas Department
of Health-Bureau of Radiation Control regarding the exempt status of
NORM waste from the W.R. Grace FUSRAP site in Curtis Bay, MD, and the
letter of concurrence dated October 27, 1999 from the Texas Department
of Health to the U.S. Army Corps of Engineers;
``Standard Operating Procedure (S.O.P.)--Site Specific
Health And Safety Plan for the management of waste containing Naturally
Occurring Radioactive Materials (NORMs), Safety-Kleen (Buttonwillow),
Inc.,'' which is utilized by the Safety-Kleen (Buttonwillow), Inc.
Facility for NORM disposal projects, including the FUSRAP waste from
the Linde Site;
Waste characterization and material profile information
prepared by Radian International for the U.S. Army Corps of Engineers
including but not limited to material profile form prepared on behalf
of the U.S. Army Corps of Engineers dated September 20, 1998;
Project information from the Safety-Kleen (Buttonwillow),
Inc. Facility regarding the disposal of the Linde Site FUSRAP waste
including: (a) waste radiation monitoring data, (b) personnel training
information, and (c) personnel radiation dosimetry reports;
Letter dated May 20, 1999 from Ed Bailey of the Department
of Health Services' Radiology Health Branch (``DHS'') to California
Assembly Member Dean Florez stating that the evaluation by DHS and DTSC
staff that was conducted at the Safety-Kleen (Buttonwillow), Inc.
Facility subsequent to the disposal of the FUSRAP waste from the Linde
Site showed ``. . . no radiation levels above normal background
levels'' and ``no known safety or health risk to the community.'';
Letter dated April 9, 1999 from the Conference of
Radiation Control Program Directors to the NRC requesting clarification
regarding a potential regulatory vacuum over the disposal of FUSRAP
wastes, and any subsequent related responses from the NRC to the
Conference of Radiation Control Program Directors;
Documents submitted to the Southwestern Low-Level
Radioactive Waste Commission (``Commission'') and testimony before such
Commission by both Safety-Kleen and the U.S. Army Corps of Engineers
including but not limited to (a) documents dated June 1, 1999, June 11,
1999, and July 29, 1999, from Safety-Kleen to the Commission and (b)
transcripts of the Commission's meeting held June 11, 1999 in which the
U.S. Army Corps of Engineers defended their position that the FUSRAP
waste from the Linde Site was neither ``source material'' nor ``Low-
Level'' waste which would require an NRC (or Agreement State) license
under the Atomic Energy Act or related State programs (including the
California Radiation Control Act);
Uniform Hazardous Waste Manifests, Waste Verification
Information, and other shipping/receiving paperwork associated with the
transportation to, and acceptance of, the Linde Site FUSRAP waste at
the Safety-Kleen (Buttonwillow), Inc. Facility between November 1998
and March 1999;
Draft ``Project Completion Report, Demolition and Debris
Removal, Former Linde Building 30'' dated May 5, 1999, prepared by
Radian International (a.k.a. Dames & Moore) for the U.S. Army Corps of
Engineers;
Both draft and final comprehensive post-project evaluation
documents prepared by the U.S. Army Corps of Engineers in response to
questions posed by U.S. Senator Barbara Boxer regarding the shipment of
the Linde Site FUSRAP waste by the U.S. Army Corps of Engineers to the
Safety-Kleen (Buttonwillow), Inc. Facility;
The following reference documents related to the
occurrence, characterization, monitoring, health and safety,
regulations, and disposal of NORM waste, which were maintained and used
by Safety-Kleen as part of their NORM waste handling protocol,
including: (a) Department of Health Services and Department of
Conservation (Division of Oil, Gas and Geothermal Resources) document
#TR49, 1996 (draft) entitled ``A Study of NORM Associated with Oil and
Gas Production Operations in California'': (b) U.S. EPA, Office of Air
and Radiation, document #RAE-9232/1-2, April 29, 1993, entitled
``Diffuse NORM Wastes-Waste Characterization and Preliminary Risk
Assessment''; (c) Interstate Oil & Gas Compact Commission document
(1994), entitled ``Understanding the Basics of Naturally Occurring
Radioactive Material (NORM) in the Oil and Gas Industry''; (d) William
Feathergail Wilson, PennWell Books document (1994), entitled ``NORM-A
Guide to Naturally Occurring Radioactive Material''; (e) CRCPD
Publication 94-6, April 1994 Conference of Radiation Control Program
Directors, Inc., entitled ``Report of the E-4 Committee on NORM
Contamination and Decontamination/Decommissioning-Report 3''; (f)
Philip T. Underhill, St. Lucie Press document (1996), entitled
``Naturally Occurring Radioactive Materials-Principles and Practices'';
and
January 31, 2000 letter from Bill R. Ross of Safety-Kleen
to Ed Bailey of DHS and attached testing documents regarding the low
concentration of radionuclides in the leachate generated in Safety-
Kleen (Buttonwillow), Inc. facility's landfill containing the Linde
Site FUSRAP waste (i.e., Landfill WMU 34) in comparison to two other
RCRA landfills at the facility that contain no FUSRAP NORM waste but
have accepted NORM waste from local oil fields.
______
California Environmental Protection Agency,
Sacramento, CA, January 6, 2000.
Hon. Barbara Boxer,
U.S. Senate,
Washington, DC.
Dear Senator Boxer: Thank you for your letter to Governor Gray
Davis dated October 1, 1999 regarding the acceptance of waste from the
Formerly Utilized Sites Remediation Program (``FUSRAP'') at a permitted
hazardous waste disposal facility near Buttonwillow, Kern County,
California. The cleanup of FUSRAP sites and the proper disposal of
contaminated debris is an important environmental issue. My primary
concern, like yours, is the protection of the environment and health of
California's families.
As you know, there is an on-going investigation by California's
Department of Health Services (DHS) of the issues raised by acceptance
of this waste. The results of the initial inquiry into the matter have
been communicated in a letter to Assembly member Dean Florez dated
August 25, 1999 jointly signed by myself as the Secretary of the
California Environmental Protection Agency (CalEPA) and the Secretary
of the Health and Human Services Agency (HHSA). As you know, DHS, is a
part of HHSA and the Department of Toxic Substances Control (DTSC), who
issue the facility's hazardous waste facilities permit, is part of
CalEPA. For your information, I have attached a copy of the letter.
I look forward to working with you on this issue once the final
results of the on-going investigation are available.
Sincerely,
Winston H. Hickox,
Agency Secretary,
California Health and Human Services.
Attachment
California Environmental Protection Agency,
Sacramento, CA, August 25, 1999.
Hon. Dean Florez,
California State Assembly,
State Capitol,
Sacramento, CA.
Dear Assembly Member Florez: Thank you for your letter to Governor
Gray Davis regarding the disposal of radioactive material at the
Safety-Kleen hazardous waste site in Buttonwillow, Kern County. We
would like you to know what our respective departments and boards have
been doing in this matter.
The Department of Health Services (DHS), in the California Health
and Human Services Agency, has been actively involved in gathering and
reviewing information on the material disposed at Buttonwillow. This
preliminary analysis and site visit supports the previous DHS
communication to you that there is no immediate threat to public health
or surrounding communities.
To ensure a comprehensive review, DHS has established a team of
radiation experts to coordinate all aspects of the Buttonwillow
radioactive waste review. Included on the team along with DHS are two
of the California Environmental Protection Agency (Cal/
EPA)organizations, the Department of Toxic Substances Control (DTSC)
and the Regional Water Quality Control Board, Central Valley Region,
which regulate the Safety-Kleen site through permits issued under their
respective hazardous waste management and water quality authorities.
During the week of August 9, 1999, DHS staff traveled to Albany, New
York, to consult with the New York State radiation control agency, and
then to Buffalo, New York, to review the United States Army Corps of
Engineers' records and data on the source of this waste material. DHS
has also been evaluating external consultants who might be able to
provide an independent review of the State's analysis of these wastes.
Some issues have already been resolved. First both DHS and DTSC
concur that ``there is no known safety or health risk to the
community,'' as DHS stated in its letter to you on May 20, 1999. That
conclusion stems in part from testing conducted jointly by DHS and DTSC
which found no radiation above background levels at the site.
Moreover, state environmental agencies have had continuing
oversight of this hazardous waste facility. DTSC and the Regional Board
also have no reason to expect long-term environmental problems stemming
from this disposal. The facility was designed and constructed, with
oversight and approval by these Cal/EPA organizations, to prevent toxic
materials from migrating to groundwater. The facility has two 3-foot
thick impermeable clay liners, three heavy gauge synthetic liners, and
two leachate collection systems in place. This design is more than is
required by State and Federal environmental laws. The facility also has
an extensive system of groundwater monitoring, including an advanced
neutron probe system, to assure that the wastes do not migrate to
groundwater. In its 18 years of operation, no releases to groundwater
have been found anywhere at the facility. If any releases are ever
found, regulatory and financial mechanisms are in place to assure that
corrective action would be implemented immediately. In short, we have
no reason to expect long-term problems at this facility, but are
vigilant to assure that none occur.
While the DHS assessment will proceed independently, DTSC has not
found any violations--of the Resource Conservation and Recovery Act
(RCRA) hazardous waste facility permit which DTSC issued--by the
company in accepting these shipments. The RCRA permit for this facility
allows the disposal of wastes containing less than 2000 picocuries per
gram that are not regulated by the Nuclear Regulatory Commission (NRC).
From the information currently known, the wastes here averaged only 335
picocuries/gram. Furthermore, the NRC has clearly stated that they do
not have jurisdiction over these specific wastes and that disposal is
not prohibited in RCRA hazardous waste facilities. However, DTSC has no
jurisdiction over radioactive waste regulated by DHS or any federal
agency.
We continue working with our constituent organizations to resolve
any remaining regulatory issues expeditiously. In the meantime, we hope
that this letter is helpful. We look forward to working with you on
this matter in the future.
Sincerely,
Winston H. Hickox,
Agency Secretary,
California Environmental Protection Agency.
Grantland Johnson,
Agency Secretary,
California Health and Human Services Agency.
______
California Health and Human Services Agency,
Sacramento, CA, May 20, 1999.
Hon. Dean Florez,
California State Assembly,
State Capitol,
Sacramento, CA.
Dear Assembly Member Florez: Thank you for inviting us to the
meeting with you, your staff, and officials from Safety-Kleen Services,
Inc. We appreciated the opportunity to discuss the disposal of
materials from the Linde Site in New York at Safety-Kleen's
Buttonwillow hazardous waste disposal site. We share your health and
safety concerns regarding this matter.
As we discussed, the Department of Health Services Radiologic
Health Branch conducted an on-site radiologic evaluation at the
Buttonwillow site, accompanied by the Department of Toxic Substances
Control, on May 18, 1999. The evaluation included radiation monitoring
of the site's surface. We found no radiation levels above normal
background levels. For that reason, we believe that there is no known
safety or health risk to the community.
We intend to continue to gather all available documentation and
data regarding the specific material buried at the Buttonwillow site.
Safety-Kleen has pledged to cooperate in this review. After we have
completed our review and analysis, we will make a determination as to
the appropriate section to be taken.
The Department of Health Services appreciates the opportunity to
discuss this issue with you. We will keep you informed of our review of
the Buttonwillow site.
Sincerely,
Edgar D. Bailey, C.H.P., Chief,
Radiologic Health Branch.
______
U.S. Senate,
Washington, DC, October 1, 1999.
Hon. Gray Davis, Governor
Sacramento, CA.
Dear Governor Davis: I am writing to you on an urgent matter and
with great confidence that you will join with me in halting the
dangerous practice of accepting radioactive waste at hazardous waste
disposal facilities in California.
As you know, hazardous waste facilities lack the special worker
protection standards, community notification provisions, monitoring
requirements and site closure assurances that radioactive waste
disposal facilities licensed by the Nuclear Regulatory Commission are
required to provide.
In the last 12 months, the U.S. Army Corps of Engineers has
disposed of approximately 2,200 tons of radioactive debris at a
hazardous waste facility operated by Safety-Kleen, Inc., in
Buttonwillow, California. I understand that the site sits atop aquifers
that connect to a larger aquifer that supplies drinking water to the
San Joaquin Valley.
While your Department of Health Services informs me that State law
prohibits such disposal, Safety-Kleen holds a Resource Conservation
Recovery Act permit issued by the former administration's Department of
Toxic Substances Control which allows the facility to dispose of
radioactive materials. Shockingly, both DHS and DTSC have told me that
the DTSC has no authority to include that provision in the permit.
While I plan to introduce legislation which would clearly require
that this waste be disposed of only at facilities licensed to accept
radioactive waste, I urge you to immediately stop hazardous waste
facilities in California like Safety-Kleen's Buttonwillow facility from
accepting such waste.
I look forward to working closely with you to protect the health
and safety of our California constituents.
Best regards,
Barbara Boxer,
U.S. Senator.
______
Safety-Kleen Corporate,
October 21, 1998.
Mr. Gerard Wong, Chief,
Radiological Materials Licensing Branch,
California Department of Health Services,
Sacramento, CA.
Mr. Tony Hashemian, Sr., Permitting Project Manager,
California Department of Toxic Substances Control,
Sacramento, CA.
Re: NORM Waste from the U.S. Army Corp of Engineers ``Linde Bldg. 30
Demo & Debris Project''
Dear Mr. Wong and Mr. Hashemian: This letter is a follow-up to the
telephone conversation today regarding the acceptance of NORM (i.e.
Naturally Occurring Radioactive Materials) at our ``Lokern'' facility.
The ``Lokern'' facility (i.e. the ``Safety-Kleen (Buttonwillow), Inc.''
facility, previously the ``Laidlaw Environmental Services (Lokern),
Inc.'' facility) is a fully permitted RCRA Subtitle C landfill
permitted to accept NORM waste, both non-hazardous and hazardous, up to
a maximum concentration of 2,000 pCi/g concentration (as per permit
condition II.C.1.a of the hazardous waste facility permit issued to the
facility). From both a historical waste acceptance perspective and a
future waste approval perspective, the Lokern facility can accept NORM
waste that meets the following criteria:
1. Meets the limitation of Permit Condition II.C.1.a (i.e. < 2,000
pCi/g concentration); and
2. ``Has been cleared by the proper authorities, including any
local, state or federal agency either in California or the state of
origin, involved with the project such as NRC, DOE, State or City
Radiological Health agencies, etc.''.
The Lokern facility is fully authorized to accept this NORM
material consistent wiht existing permits and authorizations because:
1. The U.S. Army Crop of Engineers' ``Linde Bldg. 30 Demo & Debris
Project'' has been deemed not a regulated source material (i.e. neither
``low-level'' or ``transuranic'') under concurrence of the Department
of the Army and the NRC; and, 2. The levels of radiological nuclides
are well below the 2,000 pCi/g limit (i.e. will not require D.O.T.
placarding as a radioactive material).
By copy of this letter, I am informing Mark Sylvester, Program
Manager with Radian International (301.584.1678) and contractor to the
U.S. Army Corp of Engineers for the ``Linde Bldg. 30 Demo & Debris
Project'', that this waste is acceptable at the Lokern facility subject
to all state and RCRA standards (e.g. state and federal waste
classification standards, LDR treatment standards, etc,). If any party
has additional questions or comments regarding this project please do
no hesitate to contact me at 408-451-5082.
Sincerely,
Bill R. Ross, P.E., Director,
Regulatory Affairs--Western Division,
Safety-Kleen Services, Inc.
______
California Health and Human Services Agency,
Sacramento, CA, March 10, 1999.
Mr. Bill R. Rose, P.E., Director,
Regulatory Affairs, Western Division,
Safety-Kleen Services, Inc.
Los Angeles, CA.
Dear Mr. Rose: This letter is in reference to your letter of
October 21, 1998, to Dr. Gerard Wong of the Department of Health
Services (DHS), Radiologic Health Branch (RHB) and Mr. Tony Hashemian
of the California Department of Toxic Substances Control regarding the
disposal of certain ``NORM'' materials.
Following discussions with officials in the State of New York, I
have concluded that the subject material has been incorrectly
characterized.
Please be advised that any naturally occurring radioactive
materials in concentrations exceeding the concentrations found in
nature are subject to regulation and licensing as radioactive materials
in California. The status accorded to a material or waste by another
legal jurisdiction has no bearing on this California determination.
Disposal of radioactive materials must be at a site that is licensed by
this Department to dispose of radioactive waste or otherwise approved
by this Department. At the present time there is only one site in
California licensed to dispose of radioactive wastes from other
persons, and that site is not currently built or operating.
The Safety-Kleen (Buttonwillow), Inc., site is not licensed by RHB
to dispose of any radioactive waste. In fact, this facility is not even
licensed to receive or store radioactive material of any sort. For the
facility to receive, store, or dispose of any radioactive waste,
including the material described in your letter, would be a violation
of California law and would subject you to potential monetary
penalties. Such a violation is also a misdemeanor.
I hope that this letter unequivocally states this Department's
position regarding the disposal of the wastes alluded to in your
letter.
I would appreciate your confirmation that no wastes such as were
described in your letter have been received by Safety-Kleen Services,
Inc. If you have any questions, please contact me at (916) 322-3482.
Sincerely,
Edgar D. Bailey, C.H.P., Chief,
Radiologic Health Branch.
__________
Department of the Army,
Corps of Engineers Omaha District,
Omaha, Nebraska, February 13, 1998.
Robert L. Fonner, Esq., Special Counsel,
Fuel Cycle, and Safeguards Regulations,
U.S. Nuclear Regulatory Commission,
Rockville, MD.
Dear Mr. Fonner: Reference is made to the Formerly Used Sites
Remedial Action Program (FUSRAP) which Congress recently transferred
from the Department of Energy to the U.S. Army Corps of Engineers
(USACE) for execution. As part of the USACE work on FUSRAP projects, we
are evaluating the various disposal options for the different waste
materials at the sites. There is some question whether the Nuclear
Regulatory Commission (NCR) has exercised its regulatory jurisdiction
over these sites, or the waste materials from them. This letter is
intended to seek a clarification on the position of the NRC regarding
its regulatory approach to FUSRAP waste.
There are a number of the sites where processing activities
occurred in support of the Manhattan Engineer District (MED) or Atomic
Energy Commission (AEC) and which now contain low-activity radioactive
material. We are evaluating the alternatives available for off site
disposal of materials from these sites. It is our understanding that
the NRC does not regulate these sites as a result of the historical MED
or AEC activities or require that the materials be disposed at an NRC
licensed facility. The following is a list of these sites:
Ashland 1 & 2
Seaway
Linde
St. Louis Downtown Site (SLDS)
SLDS Vicinity Properties (VPs)
St. Louis Airport Site (SLAPS)
SLAPS VPs
This list does not include all of the FUSRAP sites currently in the
program, however it is a list of those sites where processing
activities resulted in at least some part of the radioactive materials
now requiring remediation under FUSRAP.
The materials at these sites are not source material or special
nuclear material as defined in 10 CFR 40.4. Neither do they meet the
NCR definition of byproduct material in 10 CFR 30.4, which includes
``any radioactive material (except special nuclear material) yielded in
or made radioactive by exposure to the radiation incident to the
process of producing or utilizine special nuclear material''. Rather,
these wastes were derived from the processing of ore for it source
material content during those historical operations in support of the
MED or AEC.
In our evaluation of disposal alternatives, we are interested in
determining if one of the options may be disposal of FUSRAP materials
from these sites at facilities with Resource Conservation and Recovery
Act (RCRA) Subtitle C permits, but which do not have NRC or Agreement
State licenses. Based on our inquiries to some RCRA hazardous waste
disposal facilities, some facility operators may be willing to accept
the material for disposal provided we can demonstrate to them that the
material is not subject to NRC licensing requirements. To satisfy the
concerns of these potential disposal facilities, it is requested that
the following information be provided:
1. Is an NRC license required for handling activities related to
disposal of the FUSRAP wastes from the sites listed above?
2. Are there any rules or regulations which would precluded
disposal of the FUSRAP wastes described above at a RCRA disposal
facility?
We greatly appreciate your efforts regarding this matter. If there
are questions or concerns, please contact Ann Wright, HTRW Ceneter of
Experise Counsel at (402) 697-2466. Please send your reply to the
attention of Ms. Wright.
Sincerely,
Marcia C. Davies, Ph.D., Director,
USACE Hazardous, Toxic and Radioactive
Waste Center of Expertise.
__________
Nuclear Regulatory Commission,
Washington, DC., March 2, 1998.
Ann Wright, Esq., Counsel,
HTRW Center of Expertise,
U.S. Army Corps of Engineers,
Omaha, NE.
Dear Ms. Wright: We are replying to Dr. Davies' letter of February
13, 1998, which requested that our reply be addressed to you. Dr.
Davies requested responses to two questions regarding the Nuclear
Regulatory Commission's position on the relevance of its licensing
program or its rules and regulations to the disposal of certain wastes
generated in the Corps' administration of the Formerly Utitized Sites
Remedial Action Program (FUSRAP). Dr. Davies specifically asked about
waste from eight sites listed in her letter (we have assumed that the
St. Louis Airport vicinity properties includes the Latty Avenue site).
These sites are: Ashland 1 & 2, Seaway landfill, Linde (now Praxair),
St. Louis Downtown site, St. Louis Downtown vicinity properties, St.
Louis Airport site, and St. Louis Airport vicinity properties.
According to our information all of the listed sites are contaminated
with residuals from the processing of Congo pitchblende for the
Manhattan Engineering District project or shortly afterwards for the
Atomic Energy Commission (AEC).
The first question asks: ``Is an NRC license required for handling
activities related to disposal of the FUSRAP wastes from the sites
listed above?
Answer: No NRC license is required for the handling activities for
the radioactive residuals at those sites. Prior to the enactment of the
Uranium Mill Tallings Radiation Control Act of 1978 (UMTRCA) neither
the AEC nor the NRC claimed statutory jurisdiction over the tailings
from ore processed for source material. NRC exercised some safety and
environmental control over such tailings only in conjunction with the
licensed processing of ore for source material, drawing primarily on
National Environmental Policy Act requirements for environmental
mitigation. UMTRCA gave NRC statutory authority over such tailings, but
only over tailings resulting from activities licensed by NRC as of the
effective date of the Act (November 8, 1978), or thereafter. See,
Section 83 of the Atomic Energy Act of 1954 as amended. Such activities
are understood to be the processing of ore or other material primarily
for source material. Section 209 of UMTRCA also ordered NRC to
consolidate regulation of tailings with the licensing of source
material extraction. Regulations for the handling and disposal of such
tailings are to be found, accordingly, in 10 CFR Part 40, Domestic
Licensing of Source Material, as an adjunct to source material
licensing.
Because the residuals at the listed sites were generated long
before NRC had any jurisdiction over tailings, and were never produced
from source material extraction under NRC license. NRC today has no
basis to assert any regulatory authority over the handling of those
residuals at the listed sites. Cf. Bowen v. Georgetown University
Hospital, 488 U.S. 204 (1988) (on the issue of retroactive application
of rules).
The second qeustion asks: ``Are there any NRC rules or regulations
which would preclude disposal of the FUSRAP wastes described above at a
RCRA disposal facility?''
Answer: There are no NRC rules or regulations that would preclude
disposal of the described FUSRAP wastes at a Resources Conservation and
Recovery Act (RCRA) diaposal facility. NRC rules on waste disposal in
10 CFR Part 20, Subpart K, Waste Disposal, apply only to licensees
disposing of licensed material. As discussed above in answer to the
first question, the waste in question is not licensed material.
Licensed material is source, by product or special nuclear material
within the licensing competence of NRC. Further, in this context
neither the Corps of Engineers nor RCRA permitted sites are licensees
of the agency. Accordingly, the restrictions on disposal in Subpart K
are not applicable. 10 CFR Part 61 is also not applicable since it
applies only to the procedures and requirements for obtaining a license
for commercial disposal of licensed source, byproduct and special
nuclear material. Restrictions as to waste form and content and
manifesting are applicable only to licensed materials shipped by a
licensee for disposal at a licensed site. See. 10 CFR
20.20006(a)(1)(i)(effective March 1, 1998). Therefore, we conclude that
there are no rules or regulations of the NRC that would preclude
disposal of the described FUSRAP wastes at a RCRA site.
For your information, I am enclosing copies of recent
correspondence between NRC, The State of New York, and citizen of the
State. This correspondence is related to the Tonowanda sites which are
included in the list of sites in Dr. Davies' letter, albeit under other
names. If you have any further questions, please call me, at (301) 415-
1643.
Sincerely,
Robert L. Fonner, Special Counsel,
Fuel Cycle and Safeguards Regulations.
__________
``Diffuse NORM Wastes--Waste Characterization and Preliminary
Risk Assessment''--Executive Summary
ES.1 INTRODUCTION
In September 1989, the Environmental Protection Agency (EPA)
released a preliminary draft risk assessment characterizing generation
and disposal practices for wastes that contain relatively low-levels of
naturally-occurring radioactive materials (NORM). Such wastes are
typically generated in large volumes and, in some cases, may be put to
commercial uses instead of being disposed of as wastes. The draft risk
assessment report was prepared as an initial step to help determine if
standards governing the disposal and reuse of NORM waste and material
are warranted. Diffuse NORM wastes and materials are of such large
volumes and relatively low radionuclide concentrations that it was
deemed inappropriate to include them within the scope of other proposed
rulemaking activities. A second draft risk assessment was issued in May
1991. Comments on the draft reports indicated that there was a need to
further review the data, assumptions, and models used in those reports,
provide additional information on categories of diffuse NORM waste that
were not explicitly addressed, and perform additional risk assessments.
This report, prepared in response to those recommendations, presents
the results of further characterization efforts and an updated and
revised risk analysis. As with the earlier reports, the analyses
presented here are only intended to help EPA decide whether regulations
for diffuse NORM need to be developed. If EPA decides regulation is
warranted, a much more detailed and complete risk analyses will be
developed and presented in a Background Information Document that will
accompany proposed regulations.
ES.2 WASTE VOLUME AND ACTIVITY SUMMARY
All soils and rocks are known to contain some amounts of naturally-
occurring radioactive material (NORM). The major radionuclides are
uranium and thorium, and their respective decay products. Radium, one
of the decay products, and its subsequent decay products, are the
principal radionuclides of concern in characterizing the redistribution
of radioactivity in the environment by human activity. Radium is
normally present in soil in trace concentrations of about one picocurie
per gram (pCi/g). Certain industrial processes, however, tend to
concentrate the radioactivity to much higher levels in the resulting
waste or byproduct material. Other industrial processes may simply make
it more accessible to humans. Such processes include mining and
beneficiation, mineral processing, coal combustion, and drinking water
treatment, among others. Some of the NORM wastes or materials are
generated in large quantities and are typically disposed or stored at
the point of generation. At times, however, NORM materials and wastes
are used in various applications instead of being disposed. Both
disposal and reuse may result in unnecessary radiation exposures,
potential adverse health effects, and environmental contamination.
NORM waste generation, reuse, and disposal practices are
characterized in this report for eight NORM sectors. The largest
inventories of NORM waste are associated with metal mining mineral
processing, phosporous production, uranium mining, and ash from coal
combustion in utility and industrial boilers. Each of these processes
generates large volumes of waste with annual production rates of
several million metric tons. Annually, these NORM sectors can generate
in excess of one billion metric tons of waste. Smaller amounts of
wastes are generated by the petroleum industry as oil and gas pipe
scale and sludge, from geothermal energy production, and by drinking
water treatment facilities. Phosphate fertilizers, while not a waste,
are included in this analysis for perspective because of their elevated
radium concentrations. It is estimated that nearly 5 million metric
tons of these fertilizers are applied to agricultural fields annually.
Section ES.2 presents a summary of NORM waste generation practices,
annual waste generation rates, and average NORM radionuclide
concentrations, as summarized in Table ES-1. Utilization practices are
discussed in Section ES.3 and the preliminary risk assessment is
summarized in Section ES.4.
The Martha Oil Field, located in northeastern Kentucky, occupies an
area in excess of 50 square miles. Oil production began in the early
1920's and secondary recovery operations or waterflooding commenced in
1955. Ashland Exploration, Inc., operated UIC-permitted injection wells
in the area. Approximately 8,500 barrels of fresh water were being
injected per day at an average pressure of 700 pounds per square inch.
Several field investigations were conducted by the U.S. Environmental
Protection Agency, Region IV, to appraise the potential for the extent
of contamination of ground-water resources. Field inspections revealed
widespread contamination of underground sources of drinking water
(EPA87).
Finally, there have been a number of other isolated cases where the
improper disposal of NORM waste has resulted in increased direct
radiation exposures. The use of elemental phosphorus slag to construct
roads in Pocatello, Idaho, has resulted in increased radiation
exposures to twice background levels in some areas.\1\ In Mississippi,
the use of pipes contaminated with radium scale in playground-
equipment, fences, and welding classes has resulted in unnecessary
radiation exposures to students using that equipment.\2\
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\1\ Personal communication, Donald Hendricks, July 27, 1988.
\2\ Personal communication, Eddie Fuentes, State Department of
Health, Jackson, MI, February 19, 1988.
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4. current federal remedial programs dealing with norm waste
In addition to the sources of NORM waste discussed in this report,
there are a number of other projects currently being managed under
several Federal programs implemented specifically to mitigate potential
public health and environmental impacts from numerous NORM contaminated
sites. It should be noted that these programs were designed to target
similar types of public health and environmental concerns, as is
addressed in this report. For illustrative purpose, such Federal
programs include:
The DOE's Formerly Utilized Sites Remedial Action Program
(FUSRAP).
Sites on the National Priority List (NPL) associated with
the presence of elevated levels of naturally occurring radionuclides.
DOE's Uranium Mill Tailings Remedial Action Program
(UMTRCA).
Each of these programs has been under way for several years with a
large number of sites having been fully characterized and remediated.
In addition, exposure and risk assessments for members of the public
have also been performed. They established a base of technical
experience and regulatory precedents that may be useful in evaluating
the potential risks associated with other NORM contaminated sites or
waste generation sector. This section briefly describes these three
programs and summarizes some of the experiences at selected sites.
4.1 FUSRAP Program
FUSRAP is a DOE program concerned with sites that were formerly
utilized to support the nuclear activities of DOE's predecessor
agencies, the Manhattan Engineering District and the Atomic Energy
Commission (DOE90), The sites were primarily privately or
institutionally owned and used for research, processing, and storage of
uranium and thorium ores, concentrates, and residues. When these
facilities were no longer needed, they were decontaminated in
accordance with guidelines acceptable at the time. However, under
today's more restrictive environmental standards, the Federal
government has established a program to re-evaluate 31 sites (DOE90).
As a results, FUSRAP was initiated in 1974 to identify and characterize
candidate sites, develop, and implement remediation programs.
The majority of the FUSRAP sites are concerned with uranium and
thorium contaminated soils, although some sites still have a few of the
original facilities and structures. Also, some of the FUSRAP sites are
concerned primarily with radium-226 and involve contaminated soils that
have been moved offsite and used as backfill materials in vicinity
properties. One such site is the former Vitro Rare Metals Plant in
Canonsburg, PA. The plant was operated by Standard Chemical Company and
some time after 1911, Standard Chemical began extracting radium as
bromide or sulfate from carnotites ore at this site. The property was
purchased by Vitro Rare Metals Company in 1922.
From 1930 to 1942, Vitro extracted radium and uranium salts from
onsite residues and carnotite ore. Form 1942 to 1957, operations were
shifted to the recovery of uranium from various ores, concentrates, and
scrap materials under Manhattan Engineer District and Atomic Energy
Commission contracts. During the early years of World War II, the Vitro
Plant processed a substantial portion of the high-grade Congo uranium
ores and nearly all of the Vanadium Corporation of America's uranium
bearing sludge. The last Atomic Energy Commission contract with Vitro
ended in 1957. Since then, the property has changed owners several
times and has been leased to tenant companies for light industrial
uses.
The original facility consisted of 18 buildings on an 18-acre site.
Solid wastes were accumulated in mounds located away from the site
buildings. Early survey work indicated that adjacent roads and fields
showed above background radiation levels, suggesting that waste
material had eroded from its original position or was used for fill.
Between October 1956 and January 1957, about 6,000 tons of waste
residue containing 0.0097 percent U3O8 were
removed for disposal from the Vitro site with the approval of the AEC's
Oak Ridge Operations Office. The waste residues were dumped into a
landfill on a Pennsylvania Railroad property in Burrell Township, PA.
A subsequent review of the Canonsburg records under the Atomic
Energy Commission and the Energy Research and Development
Administration (now (the DOE) site survey program indicated a lack of
sufficient data to verify that existing conditions at the site were
radiologically acceptable. Oak Ridge National Laboratory conducted
several radiological surveys of the Canonsburg Industrial Park from
March through July 1997. The program assessed radon and decay product
concentrations in buildings, surface and subsurface contamination
levels on and near the site, radiation levels above the surface on and
near the site, and radon concentrations near the site.
______
Environmental Protection Agency,
Sacramento, CA, September 16, 1996.
Mr. Gerald C. Wong., Ph.D., Chief,
Department of Health Services,
Sacramento, CA.
Re: The Hazardous Waste Facility Permit (HWFP) for the Laidlaw
Environmental Services Inc., (Imperial Valley) Facility (Facility),
located in Imperial Valley EPA I.D. No. CAD000633164
Mr. Wong: It was a pleasure talking to you on the phone this
morning. Enclosed please find a copy of the final Hazardous Waste
Facility Permit (HWFP) for the above reference Facility.
Permit condition III.A.6.b identifies ``Radioactive Materials and/
or wastes'' as a prohibited waste. This permit condition is intended to
preclude the Facility's acceptance of high level and low-level source
wastes which are regulated by the Nuclear Regulatory Commission under
the Code of Federal Regulations (CFR) Parts 10 and 20.
The Facility historically and presently accepts wastes from the
petroleum and geothermal industries which contain concentrated levels
of Naturally Occurring Radioactive Materials (NORMs). The Facility's
HWFP would also authorize the acceptance of radionucleides that have
decayed through numerous half-lives such that the waste ``no longer
spontaneously emits significant levels of ionizing radiation''.
The Department of Toxic Substances Control defers to the Department
of Health Services, Radiological Materials Branch for the definition of
when a radiological material has decayed to the point that it ``no
longer emits significant levels of ionizing radiation''. Such a
material would no longer be considered a ``radioactive waste'' as
defined in the Health and Safety Code 114710(g), and could be accepted
at the Imperial Facility.
If you have any questions concerning this issue please contact me
at (916) 255-3581.
Sincerely,
Charles Snyder,
Hazardous Substances Engineer.
Texas Department of Health,
Antonio, TX, October 27, 1999.
Gregory E. Johnson, P.E., Chief,
Department of the Army,
Baltimore, MD.
Re: Concurrence of Exemption for Contaminated Metal Waste (Concrete and
Soil) from the W.R. Grace Facility
Dear Mr. Johnson: This is in response to your letter dated October
12, 1999, requesting concurrence that waste contaminated with low-
levels of radioactive material are exempt under Texas Regulations for
Control of Radiation.
My staff has reviewed the data you submitted and agrees that the
concentration of radioactivity in the waste you propose to ship to
Waste Control Specialists, Andrews County, TX, is below the limit of
Naturally Occurring Radioactive Material and is exempt from regulations
under Title 25 Texas Administrative Code 289.259(d).
Relative to the concentration of radioactive material contained
within the material described within your letter dated October 12,
1999, the Bureau of Radiation Control, therefore, concurs that the
waste may be disposed of without regard to its radioactivity.
If you have any questions, please contact Mr. Pete Myers, Deputy
Division Director for Licensing, (512) 834-6688 extension 2209 or
Pete.Myers@tdh.state.tx.us.
Sincerely,
Richard A. Ratliff, P.E., Chief,
Bureau of Radiation Control.
______
Mr. Richard Ratliff, Bureau Chief,
Texas Department of Health,
Austin, TX.
Dear Mr. Ratliff: The purpose of this correspondence is to request
your concurrence with our intent to ship certain radiologically
contaminated waste from the W.R. Grace facility, Curtis Bay, MD,
Formerly Utilized Sites Remedial Action Program (FUSRAP) site (WR Grace
Site) to the Waste Control Specialists LLC (WCS), Andrews County, TX
facility.
We have an estimated 150 cubic yards of building rubble and soils
containerized in preparation for disposal. The building rubble and
soils came from the renovation of portions of building 23 at the WR
Grace Site. The building debris and soils will be repackaged for safe
and efficient transportation. Enclosure A provides background
information regarding the WR Grace Site history, license
considerations, material characterization, and data sheets.
The building debris and soils contain trace quantities of byproduct
material. The Nuclear Regulatory Commission (NRC) has issued a
directors decision under 10 CFR 2.206 (Enclosure B), which states the
NRC has no regulatory jurisdiction over byproduct material, as defined
in 11(e)(2) of the Atomic Energy Act of 1954 as amended (AEA), which
was generated prior to 1978. The Texas Administrative Code defines
materials not regulated under the AEA, whose radionuclide
concentrations have been increased by or as a result of human practices
as naturally occurring radioactive material (NORM). The building debris
and soils are also exempt from NORM licensing pursuant to 25 Texas
Administrative Code Sec. 289.259(d). Furthermore, the material does not
required manifesting pursuant to 10 CFR Sec. 20.2006.
Therefore, unless your Bureau has any objections, we intend to ship
the building debris and soils to the WCS facility, which is permitted
to accept trace quantities of NORM, as soon as possible.
We look forward to your concurrence with our proposed approach.
Please advise us in writing if this approach is acceptable. If you have
any questions, please call me at 410-672-2207 or our technical point of
contact, Mr. Hans Honerlah, at 410-962-9184. Thank you for your
consideration in this matter.
Sincerely,
Gregory E. Johnson, PE, Chief,
Hazardous, Toxic and Radiological Waste Branch,
USACE, Baltimore District.
__________
RESPONSES BY RICHARD MESERVE TO QUESTIONS FROM SENATOR BENNETT
Question 1. Would you agree that the Commission should rethink its
reluctance to regulate pre-1978 material?
Response. In addition to your letter, the Commission has received a
number of other inquiries relating to its position on the pre-1978
material. In light of the concerns expressed by the various
stakeholders, the Commission is well aware of the differing views on
this important issue. A legislative solution would be the most direct
approach to clarifying the NRC's responsibilities under UMTRCA.
Question 2. Would you agree that NRC licensing requirements for
this material are more protective of public health and the environment
than RCRA requirements?
Response. Both RCRA landfills and NRC-licensed disposal facilities
are protective. In general, I believe that NRC-regulated and licensed
disposal facilities, because they are subject to requirements that
focus on protection of public health, safety, and the environment from
radiological hazards, may afford more protection against radiological
hazards.
Question 3. Would you agree that the decision in Kerr-McGee v. NRC
(903 F.2d 1, D.C. Cir. 1990) supports NRC regulating all FUSRAP waste?
Response. Yes. I believe the decision in Kerr-McGee v. NRC does
tend to support the NRC regulation of pre-1978 FUSRAP waste. However,
this specific issue was not addressed by the court. Consequently, there
is ambiguity as to the extent of the NRC's authority in this area.
Thus, a legislative solution is the most direct approach to clarifying
the NRC's responsibilities under UMTRCA.
Question 4. Would I, as NRC Chairman, support legislation that
would absolutely make clear that pre-1978 FUSRAP waste should be
regulated and disposed in licensed sites?
Response. If Congress believes that the NRC should regulate such
waste, I stand ready to assist the Congress in amending UMTRCA. The NRC
would need additional resources to regulate pre-1978 material.