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[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

                  U.S. GOVERNMENT PRINTING OFFICE
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

                              ----------                              
                                                                   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

                              ----------                              

                         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\
---------------------------------------------------------------------------
    \1\ Letter from Shirley Ann Jackson, NRC Chairman to Stephen C. 
Collins, Conference of radiation Control Program Directors, Inc., May 
3, 1999.
---------------------------------------------------------------------------

             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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
                                 ______
                                 
     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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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'').
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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  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  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. 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\
---------------------------------------------------------------------------
    \1\ Personal communication, Donald Hendricks, July 27, 1988.
    \2\ Personal communication, Eddie Fuentes, State Department of 
Health, Jackson, MI, February 19, 1988.
---------------------------------------------------------------------------
      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 
[email protected].
            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.
  

                                
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