U.S. GOVERNMENT PRINTING OFFICE

65–916CC WASHINGTON : 2000

STATUS OF THE DEPARTMENT OF ENERGY PROGRAM TO DEVELOP A PERMANENT GEOLOGIC

REPOSITORY AT YUCCA MOUNTAIN, NEVADA

HEARING

BEFORE THE

SUBCOMMITTEE ON ENERGY AND POWER

OF THE

COMMITTEE ON COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

JUNE 23, 2000

Serial No. 106–151

Printed for the use of the Committee on Commerce

(

2

COMMITTEE ON COMMERCE

TOM BLILEY, Virginia, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

MICHAEL G. OXLEY, Ohio

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

Vice Chairman

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

RON KLINK, Pennsylvania

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

TOM SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

JAMES E. DERDERIAN, Chief of Staff

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON ENERGY AND POWER

JOE BARTON, Texas, Chairman

MICHAEL BILIRAKIS, Florida

CLIFF STEARNS, Florida

Vice Chairman

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

ED WHITFIELD, Kentucky

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

TOM BLILEY, Virginia,

(Ex Officio)

RICK BOUCHER, Virginia

KAREN MCCARTHY, Missouri

TOM SAWYER, Ohio

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

BOBBY L. RUSH, Illinois

ALBERT R. WYNN, Maryland

TED STRICKLAND, Ohio

PETER DEUTSCH, Florida

RON KLINK, Pennsylvania

JOHN D. DINGELL, Michigan,

(Ex Officio)

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C O N T E N T S

Page

Testimony of:

Berkley, Hon. Shelley, a Representative in Congress from the State of

Nevada ........................................................................................................... 10

Crowley, Kevin D., Staff Director, Board on Radioactive Waste Management ............................................................................................................... 41

Gibbons, Hon. Jim, a Representative in Congress from the State of Nevada ................................................................................................................ 8

Itkin, Ivan, Director of Office of Civilian Radioactive Waste Management,

U.S. Department of Energy .......................................................................... 24

Knopman, Debra S., Board Member, U.S. Nuclear Waste Technical Review ................................................................................................................ 29

Page, Stephen D., Director, Office of Radiation, U.S. Environmental Protection Agency ............................................................................................... 34

Paperiello, Carl, Deputy Executive Director, Materials Research and

State Programs, Nuclear Regulatory Commission ..................................... 20

Material submitted for the record by:

Cohon, Jared L., Chairman, United States Nuclear Waste Technical Review Board, letter dated August 31, 2000, enclosing response for the

record ............................................................................................................. 121

Colvin, Joe F., President and Chief Executive Officer, Nuclear Energy

Institute, prepared statement of .................................................................. 106

Crowley, Kevin D., Director, Board on Radioactive Waste Management,

letter dated August 18, 2000, enclosing response for the record .............. 103

Page, Stephen D., Director, Office of Radiation, U.S. Environmental Protection Agency, letter dated September 18, 2000, enclosing response

for the record ................................................................................................. 127

Rathbun, Dennis K., Director, Office of Congressional Affairs, Nuclear

Regulatory Commission, letter dated August 28, 2000, enclosing response for the record ..................................................................................... 115

(III)

(1)

STATUS OF THE DEPARTMENT OF ENERGY

PROGRAM TO DEVELOP A PERMANENT

GEOLOGIC REPOSITORY AT YUCCA MOUNTAIN, NEVADA

FRIDAY, JUNE 23, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON COMMERCE,

SUBCOMMITTEE ON ENERGY AND POWER,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:15 a.m., in room

2123, Rayburn House Office Building, Hon. Joe Barton (chairman)

presiding.

Members present: Representatives Barton, Bilirakis, Largent,

Burr, Shimkus, Bryant, and Boucher.

Staff present: Kevin Cook, science advisor; Elizabeth Brennan,

legislative clerk; and Sue Sheridan, minority counsel.

Mr. BARTON. The Subcommittee on Energy and Power of the

Commerce Committee hearing on the status of the Department of

Energy programs to develop a permanent geologic repository at

Yucca Mountain, Nevada, is underway.

Today’s hearing will address the Department of Energy’s program to develop an underground repository for the permanent disposal of nuclear spent fuel and high level radioactive waste. Solving the disposal question is absolutely essential if we are to maintain our existing nuclear generating capacity to meet the Nation’s

present and future energy needs. Members of the subcommittee are

all too aware of how much time and energy has been spent wrestling with this issue in recent years. The Department of Energy

has a clear statutory and contractual responsibility to begin accepting spent fuel beginning in January 1998, which is a year and a

half ago.

The government’s failure to meet that obligation has resulted in

a growing financial liability that may eventually cost the taxpayers

tens of billions of dollars. But the Department tells us that the earliest the repository will actually be ready for operations is in the

year 2010. We must find a way to take acceptance of spent fuel

from the utilities and move it to the repository some time sooner

than 2010 if at all possible. Yet the Clinton administration has resisted all efforts to accelerate the acceptance date giving us veto

threats rather than constructive solutions.

The focus of today’s hearing is not on interim storage nor on a

take title option or any of the other areas of contention. Today, we

want to talk about the Department’s plan to get the repository

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ready for operation by 2010. We have to find out whether that

schedule, even though it is 12 years too late, is realistic and achievable. To meet that schedule, the Department must first complete

several near-term milestones.

Late this year, the Department is to issue a site recommendation

consideration report followed by final site recommendation and a

final environmental impact statement next summer. These documents are essential, and I want to repeat, these documents are essential to support the final selection of the Yucca Mountain site;

and in turn, the license application to the Nuclear Regulatory Commission in the fiscal year 2002.

All of these steps are on the critical path if the repository is to

open in 2010. Yet, there are grave concerns about the ability of the

Department to meet this near-term schedule, and therefore, doubts

about whether 2010 date is, in fact, feasible.

The first of these concerns deals with the adequacy of funding.

Secretary Richardson finally admitted to this subcommittee last

year that the repository will not be built by 2010 unless there are

major changes as to how the program is funded. Unfortunately,

that admission was followed by a veto threat regarding our committee’s bill to take the repository program off budget to ensure

adequate future funding. We are still waiting for the administration and the Department to send us a constructive proposal on how

it intends to resolve the long-term funding profile problem.

Today, however, we also have to address the short-term funding

situation. The Department did not receive all of the funds it has

requested for the fiscal year 2000. And it looks like the fiscal year

2001 budget appropriation that is pending also will be less than

the Department’s request. We need to understand the impact of

these near-term funding constraints on the ability of the Department to meet its milestones for the final environmental impact

statement, site recommendation requirement, the licensing, and

the licensing application, all of which are critical steps if the repository is to open on time in 2010.

As chairman of this subcommittee, I am very concerned about

the Department’s recent decision to recompete the management operation contract for the civilian radioactive waste management program. The contracts that the Department should be recompeting,

such as the one for the management of the Los Alamos National

Laboratory, the Department has never completed in over 50 years,

despite the University of California’s appalling mismanagement of

security matters. But where the contractor appears to be performing well, and the program is coming up on several key milestones, this Department of Energy decides that recompetition is absolutely essential. Go figure.

I need to be persuaded that the recompetition of the Yucca

Mountain contract at this juncture is really in the best interest of

the program. I don’t see how the committee can tolerate the Department claiming that the transition to a new contractor is an excuse for any schedule slippages. Mark my words, if they do recompete the contract, I will almost guarantee you there is going to be

a slippage, and I will also guarantee you the Department is going

to claim it because of the new contractor coming online. I hope that

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I am not a prophet and am proved wrong on that, but I just feel

it in my bones as I sit here.

The Nuclear Waste Technical Review Board was established to

provide independent technical oversight of DOE’s work on the repository. As DOE approaches these critical program milestones in

the near future, I would expect that the role of the Technical Review Board will become more important than ever before. The

Board has already surfaced a number of technical concerns about

the Department’s planning and design work. We need to understand these concerns better and find out if DOE is paying proper

attention to the scientific advice that it receives from this review

board.

The most complex, but possibly the most important issue that we

have to address today, is an appropriate radiation standard for the

repository. The Environmental Protection Agency was directed in

the Energy Policy Act of 1992 to promulgate public health and safety standards to protect against release of radioactive materials

from the Yucca Mountain site. Such standards are to be based on

and consistent with the findings and recommendations of the National Academy of Sciences. Last summer, the EPA finally circulated a draft rule which proposed, in addition to an all-pathways

individual protection standard of 15 millirems, a separate standard

for the protection of groundwater.

It is my understanding that the Department of Energy, the Nuclear Regulatory Commission, the National Academy of Sciences

Board on Radioactive Waste Management, all have significant disagreements with the EPA over this proposed stand-alone separate

standard for the protection of groundwater.

Hopefully, we will be able, after today’s hearing, to understand

the scientific rationale for the need for the separate EPA groundwater standard, if there is such a need, and specifically, whether

the proposed standard is consistent with the legislative mandate in

the 1992 Act. We also need to understand the basis for the concerns that have been expressed by the Department of Energy, the

Nuclear Regulatory Commission, and the National Academy of

Sciences about the EPA’s proposed standard. Selecting the proper

standard and doing it in a timely manner is essential for the repository project to move forward.

[The prepared statement of Hon. Joe Barton follows:]

PREPARED STATEMENT OF HON. JOE BARTON, CHAIRMAN, SUBCOMMITTEE ON ENERGY

AND POWER

Today’s hearing will address the Department of Energy’s program to develop an

underground repository for the permanent disposal of spent nuclear fuel and highlevel radioactive waste. Solving the disposal question is absolutely essential if we

are to maintain our existing nuclear generating capacity to meet the Nation’s

present and future energy needs. The Members of this Subcommittee are all too

aware of how much time and energy we have all spent wrestling with this issue

in recent years.

The Department has a clear statutory and contractual responsibility to begin accepting spent fuel starting in January of 1998. The Government’s failure to meet

that obligation has resulted in a growing financial liability that may eventually cost

the taxpayers tens of billions of dollars. But DOE tells us that the earliest the repository will be ready for operations is the year 2010. I continue to believe that we

must find a way to take acceptance of spent fuel from the utilities and move it to

the repository site sometime sooner than 2010. Yet the Administration has resisted

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all of our efforts to accelerate the acceptance date, giving us veto threats rather

than constructive solutions.

However, the focus of today’s hearing is not on interim storage, nor on take title,

nor any of those other areas of contention. Rather, we are here today to talk about

the Department’s plan to get the repository ready for operation by 2010. We have

to find out whether that schedule, even though it is twelve years too late, is realistic

and achievable. To meet that schedule, the Department must first complete several

near-term milestones. Late this year, the Department is to issue a Site Recommendation Consideration Report, followed by a final Site Recommendation and

final Environmental Impact Statement next summer. These documents are essential

to support the final selection of the Yucca Mountain site and, in turn, the License

Application to the Nuclear Regulatory Commission in Fiscal Year 2002.

All of these steps are on the critical path if the repository is to open in 2010. Yet

I have concerns about the ability of the Department to meet this near-term schedule, and therefore doubts about whether the 2010 date is feasible.

The first of these concerns deals with the adequacy of funding. Secretary Richardson finally admitted to this Committee last year that the repository will not be built

by 2010 unless there are major changes to how the program is funded. Unfortunately, that was followed by a veto threat regarding our Committee’s bill to take

the repository program off-budget to ensure adequate future funding. We are still

waiting for the Administration and the Department to send us a constructive proposal on how it intends to resolve that long-term funding shortfall. Today, however,

we also have to address the short-term funding situation. The Department did not

receive all of the funds it requested in Fiscal Year 2000, and it looks like FY2001

appropriations will also be less than the Department’s request. We need to understand the impact of these near-term funding constraints on the ability of DOE to

meet its milestones for the final EIS, the site recommendation, and the license application, all of which are critical steps if the repository is to open on time in 2010.

I am very concerned about the Department’s recent decision to re-compete the

M&O contract for the Civilian Radioactive Waste Management program. The contracts that DOE should be competing, such as the one for the management of Los

Alamos National Laboratory, the Department has never competed in over 50 years,

despite the University of California’s appalling mismanagement of security matters.

But where the contractor is performing well and the program is coming up on several key milestones, then the Department decides that recompetition is absolutely

essential. I need to be persuaded that re-competition of the Yucca Mountain contract, at this critical juncture, is really in the best interests of the program. We absolutely will not tolerate DOE claiming that the transition to a new contractor as

an excuse for any schedule slippages.

The Nuclear Waste Technical Review Board was established to provide independent technical oversight of DOE’s work on the repository. As DOE approaches

these critical program milestones in the near future, I would expect that the role

of the Technical Review Board will become more important than ever before. The

Board has already surfaced a number of technical concerns with DOE’s planning

and design work to date. We need to understand these concerns better and also find

out whether DOE is paying proper attention to the scientific advice it receives from

the Technical Review Board.

The most complex but possibly the most important issue we have to address today

is the appropriate radiation standard for the repository. The Environmental Protection Agency was directed in the Energy Policy Act of 1992 to promulgate public

health and safety standards to protect against the release of radioactive materials

from the Yucca Mountain site. Such standards are to be based on and consistent

with the findings and recommendations of the National Academy of Sciences.

Last summer, the EPA finally circulated a draft rule last summer which proposed,

in addition to an ‘‘all-pathways’’ individual protection standard of 15 millirems, a

separate standard for the protection of groundwater. I understand that the Department of Energy, the Nuclear Regulatory Commission, and the National Academy’s

Board on Radioactive Waste Management all have significant disagreements with

EPA over this proposed standard. We need to understand the scientific rationale for

the EPA standard, and specifically whether the proposed standard is consistent with

the legislative mandate in the 1992 Act. We also need to understand the basis for

the concerns expressed by the DOE, NRC, and the National Academy about EPA’s

proposed standard. Selecting the proper standard, and doing so in a timely manner,

is essential for the repository project to move forward.

I welcome my colleagues from the Nevada Congressional delegation here today,

as well as our distinguished witnesses from the federal agencies and independent

technical boards. Today’s hearing should answer the question of whether DOE is on

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the proper ‘‘glide path’’ to meet its milestones and open the repository in 2010, or

whether the Department is flying along on a mere ‘‘wing and a prayer.’’

Mr. BARTON. I see that my other colleague from the Nevada Congressional delegation is here and I think I am right that we have

got the entire House delegation.

Ms. BERKLEY. Yes.

Mr. BARTON. That is great. I want to welcome Mrs. Berkley in

addition to Mr. Gibbons. We look forward to their testimony as

soon as we have our finished opening statements. This is a very

important oversight hearing for the Yucca Mountain site. And it

would not be appropriate to do it without having the input of our

colleagues that represent the great State of Nevada in the Congress.

With that, I would like to turn to my ranking member, Congressman Boucher, and for an opening statement.

Mr. BOUCHER. Thank you very much, Mr. Chairman. I want to

commend you for conducting the hearing this morning on the status of the Yucca Mountain repository for the disposal of spent nuclear fuel and high level radioactive waste. The Energy and Power

Subcommittee has a long tradition of working on a bipartisan basis

to address our Nation’s energy security in a manner that is both

serious and thoughtful. Nowhere has that bipartisan spirit been

more in evidence than in our efforts to solve our Nation’s nuclear

waste problems. And in that tradition, I want to say a word of welcome this morning to our colleagues from Nevada, Shelly Berkley

and Jim Gibbons, who are appearing as our first witnesses.

In the Nuclear Waste Policy Act of 1982, Congress assigned to

the Federal Government a responsibility for the permanent disposal of spent nuclear fuel that is generated as a result of commercial research or defense processes. And amendments that we adopted to that Act in 1987, the Congress identified Yucca Mountain in

Nevada as the site to focus upon for the construction of the disposal facility.

Since 1987, the Department of Energy has been conducting the

site and technical studies that were necessary for the design and

the construction of the repository. The Yucca Mountain facility is

scheduled to begin accepting shipments in the year 2010. In order

for the facility to meet that goal, and to be prepared for the acceptance of shipments, the Department of Energy must meet two important deadlines next year. The first of these is the issuance of the

final environmental impact statement, and the second is the final

site recommendation.

I am highly concerned that recent decreases in the funding appropriated by the Congress for DOE’s Yucca project will have a material adverse affect on the Department’s ability to meet both the

short goal of insuring these important reports, and the long-term

goal of having the facility ready to accept shipments by the year

2010.

I look forward to hearing this morning from witnesses on the status of the project and on the projected ability of the Department

of Energy to meet both the near-term goal of having these reports

issued next year and the long-term goal of having the facility ready

by the year 2010.

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Of even greater concern, although it is not precisely the focus of

today’s hearing, is the adequacy of funding for seeing the repository

through the construction phase. H.R. 45, which the chairman mentioned in his remarks, was reported by this committee last year by

our full Commerce Committee on a broad bipartisan vote of 40 to

6. And it would have taken the nuclear waste fund off budget to

ensure that that fund, like the Highway Trust Fund, can be used

for its intended purpose and for no other purpose. The Department

of Energy has indicated that unless Congress restores access to the

roughly $9 billion in the fund, the program will face major shortfalls within the next 3 or 4 years. While it is unlikely that Congress will enact legislation addressing the matter this year, I think

it is imperative that we take up this cause early during the course

of the next Congress.

I also want to thank Chairman Barton for inviting the Environmental Protection Agency to testify about its pending rulemaking

on environmental standards for the repository. I recognize that the

agency is somewhat constrained in the degree to which it can answer questions about the direction that the final rule is likely to

take, since that matter is still under active consideration at the

EPA. Nevertheless, I think it would be useful to hear from EPA

about the status of the rule and those matters which the agency

can address with respect to progress toward its completion.

Mr. Chairman, I commend you for this timely discussion and I

join with you in looking forward to our witnesses’ testimony.

Mr. BARTON. Thank you, Congressman Boucher.

Mr. Bryant of Tennessee is recognized for an opening statement.

Mr. BRYANT. Thank you, Mr. Chairman. I will be very brief in

recognition of our two outstanding members. Having roomed for a

couple of years with a former member in your State and one who

whom I expect will return shortly as a Senator, I learned very

quickly that the correct pronunciation of the State is Nevada. And

they are probably too nice to point that out to us today.

Mr. SHIMKUS. But you are not.

Mr. BRYANT. But I am not. I would point out it is Nevada, I believe.

Mr. BARTON. Well, it ain’t Texas, so I am not too worried about

it.

Mr. BRYANT. I would say, again, in deference to our panel, and

this, our outstanding second panel also, I simply agree with what

has been said already. I have concerns with this idea of rebidding

the operation and management recompeting for that as well as

other issues. I’d like to see us stay on track. And with that, I would

apologize too. I know we are going to be in and out today, many

of us have other competing committees and appointments. So

please, don’t take that personally as we come and go and with that,

I will yield back the balance of my time.

Mr. BARTON. Okay. The gentleman from Illinois, Mr. Shimkus,

for an opening statement.

Mr. SHIMKUS. Thank you, Mr. Chairman. In lieu of time and having gone over this now in my 4th year of talking about Yucca

Mountain and understanding both sides of the issue, I will just

yield back my time and wait for the panelists.

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Mr. BARTON. The ranking member and the chairman have great

sympathy, since we have been doing this for 14 to 16 years. You

are a novice, if you have only had to do it for 4 years.

Mr. SHIMKUS. But I stop talking and you continue.

Mr. BARTON. Well, that may be the last time you get the microphone.

The gentleman from North Carolina.

Mr. BURR. I will also say ditto, only to add to it, Mr. Chairman,

if we don’t succeed now, Texas will be the target site for this facility. I yield back.

Ms. BERKLEY. Perfect.

Mr. BARTON. Give us enough money, we may think about it.

Mr. BURR. Isn’t there a hole already in the ground down there?

Mr. BARTON. There is in my district, actually.

[Additional statements submitted for the record follow:]

PREPARED STATEMENT OF HON. JOHN B. SHADEGG, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF ARIZONA

Chairman Barton, I commend you for continuing the Subcommittee’s oversight

into the issues of nuclear power and waste disposal. Nuclear power is a safe and

efficient source of energy production which allows the generation of vast amounts

of electricity while avoiding the air quality concerns raised by many other sources

of power. Electricity consumption is expected to increase at the rate of one to two

percent per year for the next twenty years and nuclear energy is needed to meet

this growth without increasing air pollution.

To ensure the continued viability of nuclear energy in the future while dealing

with existing waste, it is absolutely essential that we put the permanent repository

for this waste into operation as soon as possible. This is not optional: nuclear waste

is currently stored at dozens of power plants throughout the United States, and

many of these plants are running out of storage room.

The permanent waste repository at Yucca Mountain has been under intensive

study since 1987 and, by July, 2001, a final recommendation on whether to proceed

with construction will be delivered to the President. Key to the President’s decision

is the use of sound, unbiased science to determine the parameters of the repository.

Unfortunately, the importance of sound science appears to have escaped the Environmental Protection Agency (EPA) in their attempts to set radiation standards.

There are numerous crucial aspects of these standards on which the EPA has failed

to follow the science, including setting a standard which is lower than national and

international standards and far below the amount of radiation which the average

person receives in the course of normal, everyday life.

Let us examine in greater detail one of the aspects in which the EPA has failed

to use sound science: the EPA proposal to set a dose-based standard for radiation

exposure. This proposal is in direct contradiction to the risk-based standard recommended by the National Research Council, an independent, unbiased scientific

institution affiliated with the National Academy of Sciences. As the National Research Council enunciates in its November 26, 1999 letter to EPA Administrator

Carol Browner:

‘‘The Board believes that EPA’s rationale for proposing a dose-based standard

is flawed for the following reasons. EPA’s statement in its reason 93 that a

‘risk-based standard... depends upon current knowledge and assumptions about

the chance of developing a fatal cancer from a particular exposure level’ is incorrect. A risk based standard is not based on scientific assumptions. Instead, it

is based on a public-policy determination of acceptable risk levels to individuals

or populations . . .’’ (Emphasis in original)

There is a public policy dispute over what role nuclear energy should play in the

nation’s future mix of generation assets. This is a legitimate dispute and should proceed openly. What are not legitimate are backdoor attempts to foreclose the option

of increasing nuclear capacity by blocking the safe disposal of existing waste. Permanent storage of nuclear waste is an issue which must be decided on the basis

of sound science, not emotion or a desire to derail debate on the larger issue of nuclear power. The EPA should concentrate on the job which Congress gave it to perform, the setting of scientifically-based standards to allow the safe permanent storage of nuclear waste.

8

PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE

Thank you, Mr. Chairman.

Just two weeks ago, this Subcommittee held a hearing that addressed the future

of nuclear power. It was clear from that hearing that one of the key impediments

to nuclear power in this country is the lack of a safe, centralized facility for the disposal of spent nuclear fuel.

DOE was explicitly directed by Congress back in 1982 to develop a permanent underground repository and to begin accepting spent nuclear fuel by January 31, 1998.

In 1987, Congress further directed DOE to focus its attention on Yucca Mountain

in Nevada as the most promising site for the repository. Yet DOE tells us that it

is still at least 10 years away from having a repository.

The hearing today is to investigate whether DOE is truly on track, as it claims

it is, to open the repository in 2010. There are technical challenges, financial challenges, and contracting challenges that call into question DOE’s ability to meet this

schedule. We also must address the fundamental question of the appropriate radiation standard for the repository, which the Environmental Protection Agency is

preparing to issue as a final rule later this summer. The Department of Energy, the

Nuclear Regulatory Commission, and the National Academy of Sciences all have significant disagreements with the standard that EPA is proposing. We need to understand the scientific and policy basis for EPA’s proposed standard and the effect of

that standard on the repository program.

Today’s hearing will help the Committee understand whether DOE really is on

the right track to open the repository in 2010, and whether all the technical, financial, contracting, and environmental pieces are in place to support that schedule. I

look forward to the testimony of our distinguished witnesses today.

Thank you, Mr. Chairman. I yield back.

Mr. BARTON. Let’s hear from our senior member, Mr. Gibbons,

for 7 minutes and then we will hear from the junior member, Mrs.

Berkley, for 7 minutes. Welcome to the subcommittee.

STATEMENT OF HON. JIM GIBBONS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEVADA

Mr. GIBBONS. Thank you, Mr. Chairman. And I realize this is

simply an oversight hearing on the status of Yucca Mountain, but

I do appreciate the cordial and congenial welcome of the committee

as well as the interest of the chairman in hearing from us on this

issue as well. And Mr. Chairman, I would like to have a full and

complete written copy of my statement entered into the record.

Mr. BARTON. Without objection.

Mr. GIBBONS. Mr. Chairman, as you well know, I have, all along,

adamantly and consistently, opposed any legislation or concept that

would create or further develop Yucca Mountain as areas for nuclear waste in Nevada. Ever since I have been elected to Congress,

I have consistently voted against the annual Energy and Water Development Appropriation Act, which annually funds the studies, development and construction of Yucca Mountain. And this repository

is a travesty and an injustice to the citizens and residents of Nevada. It has a great potential to destroy the economy and the environmental future of our State.

And long before I came to this House, as you have heard already,

Yucca Mountain was chosen by Congress to store America’s high

level nuclear waste with the 1987 ‘‘Screw Nevada Bill,’’ as it was

titled and the only issue left, Mr. Chairman, today is science. It

makes sense that factual standards based upon sound science and

reason, along with protection and welfare of this Nation’s citizens,

should not be drawn upon when we address nuclear waste storage.

Secretary Richardson himself stated that Yucca Mountain site,

‘‘will be based on science, pure science, not politics.’’

9

I would question the Secretary’s statement because of a $1.4 million study he commissioned wherein it appears that we are attempting to put the square peg in a round hole. A team of experts

are using this money to determine if tiny fluid inclusions which are

bubbles in mineral deposits within the mountain are the result of

hot, rising water which flooded the repository in previous eras. If

this is the case, Yucca Mountain should be disqualified because it

will happen again and release potentially deadly nuclear waste into

the environment and cause great harm to the area as well as to

any base water or aquifer system in the area as well that the region and the people depend upon. It now appears, however, that

Secretary Richardson, in his haste to complete Yucca Mountain,

will not even wait for his study to be completed before he makes

his recommendation.

In February he states, and I quote again, ‘‘I have got a lot of good

science, I will have sufficient information.’’ I would ask this committee to talk to the Secretary and ask him to take this vital information on fluid inclusion studies into his account if we are to truly

and factually base Yucca Mountain on sound science. Yucca Mountain should be disqualified, Mr. Chairman, for at least two other

very important reasons, one being that rainwater containing the

isotope chlorine 36, which is less than 50 years old, have been detected far below the surface in the underground site. Chlorine 36

comes from above-ground nuclear tests that Nevada endured during the post-World War II and that timeframe era. The Nuclear

Waste Policy Act does mandate that because of this extremely fastsurface-water-travel-time to the repository, the Yucca Mountain

site should be disqualified. I am not an engineer or a mathematician, but I think you and the members of this committee can see

the point.

The second reason for disqualification is the geologic barriers of

Yucca Mountain will not limit radionuclide releases, thereby polluting groundwater supplies that are currently used for human

consumption and crop irrigation. This again meets the condition for

disqualification and is a true show stopper. It is important, in fact,

it is very important to ensure that the Department of Energy does

not ignore these facts or attempt to alter their regulations. This scientific approach dictates that DOE disqualified the site, not the

regulations.

Members of Congress also need to recognize the fact that these

studies are credible, and future legislation must address these fatal

findings. The art of political persuasion has no place in this fight.

Members of Congress and the DOE must look to the hard scientific

evidence that proves the site is unsuitable.

Mr. Chairman, I and the rest of Nevada will never relinquish our

fight against Yucca Mountain. We didn’t ask for it, and we don’t

want it, no matter how much money you offer us. I will continue

to be adamantly opposed to the Energy and Water Appropriations

Act, which further funds construction and study of Yucca Mountain. Recently, the President vetoed Senate bill 1287, the Nuclear

Waste Policy Amendments Act of 2000, and I congratulate him. I

plan to contact the President and encourage him to further his

commitment to protecting the citizens of Nevada by vetoing this

year’s Energy and Water Development Appropriations Act.

10

With that, Mr. Chairman, I will thank you for your time here

today, and with the indulgence of the chairman in letting our views

and the views of Nevada to be aired before your committee, I would

ask that in light of the fact that I have an additional appointment,

I know there may be questions of the committee, but ask to be excused at this point in time.

Mr. BARTON. Obviously, since we have such power over you, if we

said no, you could get up and walk out of this room a free man.

Mr. GIBBONS. Out of the courtesy of the chairman, I would stay

if it were requested.

Mr. BARTON. We understand the constraints of the time. We are

glad for you to be here and put your views on the record, because

it is a very important issue for your district.

We’d now like to hear from the gentlelady from Nevada.

Nevada. That sounds like yankee to me.

STATEMENT OF HON. SHELLEY BERKLEY, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF NEVADA

Ms. BERKLEY. Well, there are a lot of Yankees now in Nevada.

Mr. BARTON. Making a lot of money. Your complete statement is

in the record in its entirety. We would recognize you for 7 minutes

to elaborate on it.

Ms. BERKLEY. Thank you, Mr. Chairman, and I’d like to thank

you and the rest of the members of the committee for affording me

the opportunity to speak about an issue that affects every single

person in my district and the entire State of Nevada. Oversight of

the Department of Energy’s Yucca Mountain project is crucial to

the continued growth and development of my State, crucial to the

health and well-being of all Nevada families, and crucial to the

health of our environment. And that is why I testify before you

today, to share with you my concerns and the concerns of my constituents about the status of the Yucca Mountain project.

I understand that the purpose of this hearing today is to address

the oversight concerns surrounding the Yucca Mountain project. I

realize the subcommittee is discussing the time line, engineering

and regulatory aspects of the project, but when discussing oversight issues, we must also look at the scientific evidence and problems that have been raised regarding the suitability of the Yucca

Mountain to hold radioactive waste.

On three separate occasions, the State of Nevada has demonstrated using DOE’s own data that the site should be disqualified under both the EPA standard and DOE’s own internal site

screening regulation, and each time the DOE or Congress has

changed the regulations to ensure that Yucca Mountain would not

be disqualified, regardless of the health and safety consequences to

Nevadans. In fact, DOE has found that geology at Yucca Mountain

is so poor that over 95 percent of the waste isolation capability of

the proposed site would have to be provided by metal waste containers and other so-called engineering barriers around the waste

with only about 5 percent of the site’s waste isolation performance,

depending on the natural conditions. When this project started, the

idea was to find a place with natural geologic features to contain

the radiation. Clearly, that standard cannot be met at Yucca Mountain.

11

Yucca Mountain is located in the young, geologically, area with

four volcanos within 7 miles of the site. Yucca Mountain is surrounded by 34 known earthquake fault lines and has experienced

over 620 earthquakes in the last 20 years. One of these earthquakes measured 5.9 on the Richter scale, and caused over a million dollars in damage to DOE’s own surface support facilities. An

aquifer flows beneath Yucca Mountain with water moving so rapidly that even with all the engineering barriers, radiation will unavoidably escape from the repository and contaminate the water

flow. As recently as yesterday, it was reported again that scientists

have found strong evidence that the Yucca Mountain repository

floor was once flooded with hot water and feared that water could

rise again. These are the real oversight concerns.

I urge my colleagues to take into consideration the alarming scientific evidence when determining the status of the Yucca Mountain project. The real question here, are we going to continue allowing political expediency to determine our Nation’s nuclear waste

policy or will we listen to the science? The Yucca Mountain project

is a failed one. We need to invest in our future and the future of

generations to come, and work together to find a responsible and

safe solution. And I would echo what my distinguished colleague

from northern Nevada said, not only are there Yucca Mountain appropriations in the Energy and Water bill and applaud him for his

efforts there, but there is also a great deal of Yucca money in the

Defense appropriation bill as well.

I thank you for allowing me to testify before the subcommittee

on this important issue. I would also like to submit as part of my

testimony a recent article that has appeared in the Las Vegas Review Journal and the Las Vegas Sun that further detailed the scientific findings that disprove Yucca Mountain as a suitable site to

hold radioactive waste. And I thank the committee very much for

their cordial acceptance of my testimony.

[The prepared statement of Hon. Shelley Berkley follows:]

PREPARED STATEMENT OF HON. SHELLEY BERKLEY, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF NEVADA

I would like to thank Mr. Barton and Mr. Boucher for affording me the opportunity to speak about an issue that affects every single person in my district, and

the entire State of Nevada. Oversight of the Department of Energy’s Yucca Mountain Project is crucial to the continued growth and development of my state, crucial

to the health and well-being of all Nevada families, and crucial to the health of the

environment.

That is why I testify before you today—to share with you my concerns, and the

concerns of my constituents, about the status of the Yucca Mountain Project.

I understand the purpose of this hearing today is to address the oversight concerns surrounding the Yucca Mountain Project. I realize the subcommittee is discussing the time line, engineering, and regulatory aspects of the project.

But when discussing oversight issues, we must also look at the scientific evidence

and problems that have been raised regarding the suitability of Yucca Mountain to

hold radioactive waste.

On three separate occasions the State of Nevada has demonstrated, using DOE’s

own data, that the site should be disqualified under both the EPA standard and

DOE’s own internal site screening regulation. And each time, the DOE or Congress

has changed the regulations to ensure that Yucca Mountain would not be disqualified, regardless of the health and safety consequences to Nevadans.

In fact, DOE has found the geology at Yucca Mountain so poor that over 95% of

the waste isolation capability of the proposed repository would have to be provided

by metal waste container and other so-called engineered barriers around the waste,

with only about 5% of the site’s waste isolation performance depending on the natVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 E:\HEARINGS\65916 pfrm08 PsN: 65916
12

ural conditions. When this project started, the idea was find a place with natural

geologic features to contain the radiation. Clearly, that standard can not be met at

Yucca Mountain

Yucca Mountain is located in a young geologically active area, with 4 volcanoes

within 7 miles of the site. Yucca Mountain is surrounded by 34 known earthquake

fault lines, and has experienced over 620 earthquakes in the last 20 years. One of

these earthquakes measured a 5.9 on the Richter Scale and caused over a million

dollars in damage to DOE’s own surface support facilities.

An aquifer flows beneath Yucca Mountain, with water moving so rapidly that

even with all the engineered barriers, radiation will unavoidably escape from the

repository and contaminate the water flow. As recently as yesterday it was reported—again—that scientists have found strong evidence that the Yucca Mountain

repository floor was once flooded with hot water, and fear the water could rise

again.

These are the real oversight concerns. I urge my colleagues to take into consideration the alarming scientific evidence when determining the status of the Yucca

Mountain Project.

The real question is, are we going to continue allowing political expediency to determine our nation’s nuclear waste policy—Or, will we listen to science.

The Yucca Mountain Project is a failed one. We need to invest in our future, and

the future of generations to come, and work together to find a responsible and safe

solution.

I thank you for allowing me to testify before the subcommittee on this important

issue. I would also like to submit as part of my testimony recent articles that appeared in the Las Vegas Review Journal and the Las Vegas Sun that further detail

the scientific findings that disprove Yucca Mountain as a suitable site to hold radioactive waste.

[December 1, 1999—Las Vegas Sun]

CRITICS: DOE HAS CHANGED YUCCA RULES

By Mary Manning

The Department of Energy offered new rules on the approval of a proposed highlevel nuclear waste repository site at Yucca Mountain Tuesday—rules that were

greeted with howls by national and local critics who accused the DOE of changing

the guidelines to ensure that the repository will be built.

The DOE wants to change siting guidelines issued in 1996 that spelled out certain

findings that would stop a Yucca Mountain repository, such as ground water moving

too fast, an earthquake or volcanic activity at the mountain.

Yucca Mountain, 90 miles northwest of Las Vegas, is the sole site under study

by the DOE for the world’s first high-level nuclear waste repository. The mountain

has not yet passed scientific muster and will not be ready to accept 77,000 tons of

highly radioactive waste until 2010 at the earliest.

The DOE proposes to use complex computer models with whatever scientific information it has in hand to prove a repository will work, but no single fact should disqualify Yucca Mountain, the new rules say. The proposal was published in the Federal Register on Tuesday.

The DOE’s proposal would eliminate individual problems such as rapid ground

water flow from stopping the DOE from building the repository, Nevada’s technical

coordinator Steve Frishman said.

‘‘What they’re trying to do is change the law by regulation,’’ Frishman said. ‘‘It’s

a simple attempt to avoid the law.’’

Both Sens. Harry Reid and Richard Bryan, D-Nev., denounced the DOE guideline.

In a letter sent to President Clinton today, Bryan said, ‘‘As it has become increasingly clear that the Yucca Mountain site cannot meet the existing siting guidelines,

the DOE has attempted to... evaluate the suitability of Yucca Mountain based on

a single, and far less stringent, total system performance assessment.’’

‘‘Such a change,’’ the letter stated, ‘‘would destroy and remaining public confidence in the site characterization process and place the health and safety of over

1 million Nevadans in serious jeopardy.’’

‘‘It’s more of the same old game-playing,’’ Bryan’s chief of staff, Jan Neal, said this

morning. ‘‘The site doesn’t meet the criteria so instead of disqualifying the site they

change the criteria.’’

Reid said he had ‘‘crave concern’’ with the DOE’s proposal. He noted that atomic

weapons fallout from Pacific Island nuclear tests reached the repository’s level 1,000

feet deep inside Yucca in less than 40 years.

13

‘‘That characteristic surely violated the earlier criterion that such water migration

must take more than 1,000 years,’’ Reid said.

‘‘Generally, the changes cited in your proposed rulemaking do very little to dispel

the perception that earlier guidelines are being abandoned because they would disqualify Yucca Mountain from any further consideration as a permanent disposal

site,’’ Reid wrote in a letter to Energy Secretary Bill Richardson.

‘‘This is a transparent effort to change the rules of the game in the third quarter,’’

Reid said. ‘‘It’s a rule change that could threaten the health and safety of the people

of Nevada.’’

Reid and Sen. Richard Bryan, D-Nev., were successful this year in forcing Senate

Republicans to abandon efforts to store nuclear waste temporarily at the Nevada

Test Site, a former proving ground for nuclear weapons experiments.

Public Citizen’s Mass Energy Project senior policy analyst Amy Schollenberger

called the DOE proposal ‘‘another blatant attempt to ensure that Yucca Mountain

is approved as a geologic repository for radioactive waste, even though all of the evidence suggests that it will endanger the public, the environment and future generations.’’

Public citizen, a nonprofit consumer advocacy group launched by Ralph Nader,

has been a leading critic of the DOE’s attempt to weaken safeguards at the site.

Shollenberger said if DOE is successful and the Nuclear Regulatory Commission,

which must license the site, can eliminate a ground water radiation limit, the region’s aquifer could be destroyed.

[June 22, 2000—Las Vegas Review-Journal]

YUCCA HOT WATER REPORT COULD BURN RICHARDSON

By Keith Rogers

While Energy Secretary Bill Richardson was treading political hot water Wednesday over his agency’s handling of a nuclear secrets security lapse, scientists studying what some believe is ancient evidence of hot water rising within the proposed

Yucca Mountain nuclear waste site were still at odds over their observations.

The team of scientists who met Wednesday at the University of Nevada, Las

Vegas are in the midst of a two-year, $1.4 million study led by associate professor

Jean Cline. The study should be completed in April, she said.

The team of experts from federal agencies, universities and the state—including

Yuri Dublyansky, Nevada’s consulting geologist from the Siberian Branch of the

Russian Academy of Sciences—probably won’t have their conclusions ready for an

agency report this year. Richardson will use the report when considering whether

to recommend Yucca Mountain as the place to entomb the nation’s high-level radioactive wastes.

Some 77,000 tons of waste—mostly spent fuel pellets encased in metal rods from

nuclear power reactors—will be destined for a repository in the mountain, 100 miles

northwest of Las Vegas, by 2010 if the site is deemed suitable and a repository can

be licensed by the Nuclear Regulatory Commission.

Richardson, who called for the UNLV study in 1998, said then that his recommendation for the Yucca Mountain site ‘‘will be based on science, pure science,

not politics.’’

More recently, on a Feb. 11 trip to the agency’s Nevada Operations Office in Las

Vegas, Richardson said he will remain on course to make his recommendation this

year even though the findings from Cline’s group probably won’t be part of the report he will consider.

‘‘I’ve got a lot of good science. I’ll have sufficient information,’’ he said in February.

But Nevada officials say Richardson should wait until questions about the rising

thermal water theory are answered—if they can be answered conclusively. Richardson could face legal action from the state if he makes a recommendation without

knowing the answers.

At issue are tiny bubbles in mineral deposits from deep within the mountain. Scientists want to know whether those bubbles hold fluids that show hot water rose

in the recent geologic past—1.6 million to 2 million years ago—and flooded what

would be the repository floor.

If that’s the case, state scientists fear it could happen again, after waste packages

have been put in the mountain, risking a potential release of deadly nuclear remnants into the environment.

14

Joseph Whelan, a geochemist from the U.S. Geological Survey’s Denver office, said

his associates believe the calcite mineral features stem from rain or snowmelt that

percolated downward from the rocks above the proposed repository site.

‘‘If this calcite formed from upwelling water flooding these rocks, as has been proposed, then that water would have entirely filled all of those fractures and cavities

and it would have deposited calcite in them all. This is not what we observe,’’ he

said during a briefing at UNLV.

Dublyansky, who has been gathering samples from the mountain independent of

the team, said he disagrees with Whelan’s statements.

Cline, however, said the group’s results concerning the temperatures of the fluids

trapped in the minerals ‘‘are very consistent with Yuri’s. They’re also very consistent with Joe Whelan’s. All three parallel studies are consistent,’’ she said.

The temperatures that were measured average about 122 degrees, but a few of

the 40 samples that have been analyzed contained fluid that was about 176 degrees,

or 36 degrees less than the boiling point of water.

Dublyansky believes this bolsters his theory that hot water came from below the

repository site and not above, as the federal scientists contend. But a key element

in proving the theory is to determine when the minerals were deposited in relation

to the mountain’s formation 13 million years ago.

Cline said the scientists will attempt to age-date the minerals through uraniumdecay methods using equipment at Canada’s Royal Ontario Museum Laboratory.

‘‘We cannot say whether fluids went up or down, and we probably won’t be able

to say that with any surety at the end of the study,’’ she said.

Mr. BARTON. Thank you. The Chair is going to recognize himself

for 5 minutes. We are going to try to get through the question period fairly quickly so we can get to our other panels. But I think

we should ask a few questions. All of the problems that you just

highlighted in your testimony, those are well known to the scientific community and to the technical experts. Haven’t they all, in

various reports, passed the scrutiny? I mean, I didn’t hear anything

new. I understand where you are coming from. Look, I am not at

all surprised to hear what you just said, but haven’t all of those

been analyzed and passed muster in terms of it being safe to put

the material in Yucca Mountain?

Ms. BERKLEY. With all due respect, Chairman Barton, as late as

yesterday, it was reported in the Las Vegas newspapers that the

scientists that are continuing these studies have just come up with

the finding of hot water having flowed under Yucca Mountain, not

that many years ago in geological years, and have a tremendous

concern that that water may rise again. So this is yet another scientific finding that is as new as 24 hours. So I think until the scientific studies are completed, that we should not be shipping or

even thinking about Yucca Mountain as a potential site. But I do

think that hole in the ground in your district might be a suitable

location if they studied that as well.

Mr. BARTON. I wouldn’t have a problem with that, to be honest

about it, if it underwent the scrutiny that Yucca Mountain has.

Ms. BERKLEY. Perhaps we could work on a dual-track scientific

study.

Mr. BARTON. Well, I could take 10 casinos and a billion dollars

a year and give you, you know, some old rubber tires or something

that might be a fair trade.

Ms. BERKLEY. My concern, of course, representing Las Vegas,

which is the major population center in the State of Nevada, located only 90 miles away from Yucca Mountain, that if, God forbid,

there was an accident, there is no amount of money that Congress

could have given the State of Nevada to compensate for the loss of

15

health, loss of health in the environment and the loss of our economy and continued growth and prosperity.

Mr. BARTON. I understand your concern. I am not at all being

frivolous about that. But there has been more scientific review of

this particular site, and it is under more scrutiny by the environmental groups so that, you know, at some point in time, at least

I think that you do have to make a decision. And it certainly appears to me, based on the evidence that the decision to build it

there, if, in fact, that is what it is, is a safe decision. I am not going

to say it is a non controversial decision.

The gentleman from Virginia, Mr. Boucher.

Mr. BOUCHER. I don’t have any questions.

Mr. BARTON. Okay. In order of appearance, the gentleman from

Illinois.

Mr. SHIMKUS. I would just make a point that I have young children 7, 5, and 8 months. And there was a very popular show that

I think about a lot these days, called The Magic School Bus. And

in one show the Magic School Bus goes from, if you believe in evolution, goes back through time through the millennium, it really

stays in one location, but it goes through deserts, through

swamplands, through ice age, through, you know, through the billions of years that—I am a creationist, but if you go to the extent

there probably was water flowing there a few millennia ago. You

know that there probably will be water flowing there again a few

millennia from now.

But I agree with the chairman, one site is better than over 60

sites for nuclear storage and the desert is better than the temperate zone. Underneath a mountain is better than above ground,

and a location where there has been nuclear activity is better than

a place where there has never been. I applaud the defense of your

constituents. I think the science will bear out that this is the best

hope for us to move this issue forward. And I thank you for your

defense of your State and your citizens. I really, if you want to

add——

Ms. BERKLEY. To my distinguished colleague, I had the wonderful opportunity to meet your family when they visited Las Vegas,

and they are worth protecting and defending, just as the children

that live in any district are. But if I thought for 1 minute making

Yucca Mountain the national repository for nuclear waste would

solve the nuclear waste problem in this country, I would probably

be for it. All you are going to be doing is create yet another waste

site, and once the 100,000 tons of nuclear waste that is deposited

across this country gets trucked or taken by rail to Yucca Mountain, it will not solve the problem, because nuclear waste will continue to be produced as long as we have this type of technology.

And I would recommend to this Congress that rather than spending the billions and billions and billions of dollars that it is going

to take to ready Yucca Mountain in order to accept this nuclear

garbage, that we start working on a scientific way of solving this

problem so that the nuclear waste we produce is less toxic, less radioactive, and we have less of a problem in this country. Yucca

Mountain is not going to make this problem go away. It is going

to exacerbate it because it is going to give me the problem.

16

Mr. SHIMKUS. Just reclaiming my time, we already transport

high level nuclear waste all over this country, and we have done

it safely for many, many years. And I think we will continue to do

so. Having nuclear waste in some of the major metropolitan areas

of our country, Chicago, Illinois, being an example, is more catastrophic than, again, underneath a mountain in the desert.

Now, if we could ship this to Vieques Island and we could use

Yucca Mountain as a naval training assault area, I may support

that. But you understand that we have our concerns of our constituents as much as you do. And I think Congress has spoken and

the science will prove it out and we will eventually move that. I

yield back my time to the chairman.

Mr. BARTON. Thank the gentleman from Illinois. The gentleman

from North Carolina, Mr. Burr.

Mr. BURR. Mr. Chairman, I haven’t got a question of the gentlewoman, I would only make this statement. That this issue and

probably more than anything else that we have dealt with at least

in the 6 years that I have been here, displays the great difference

that exists in the definition of good science. Your argument, Mr.

Gibbons’ argument is very compelling and the test that is the State

of Nevada does in response to the test that the Department of Energy has done and nuclear regulatory—and others, we see it again

with the EPA’s current study and the questions that have been

raised about that. If we get nothing else out of this, then the right

definition that everybody can use for good science so that we can

have an environmental policy that produces an outcome versus a

continuation of complaints about the process, then I believe today

we will have accomplished a tremendous amount. In the meantime,

I think what Mr. Shimkus was trying to say is that every State in

this country, somewhere in that State we have nuclear waste

stored. Sometimes we make a decision based on what’s good for the

entire country and consolidation of that storage. In this particular

case seems to be the will of Congress, and my hope is though I believe that you will vigorously fight it, and you should, that we can

have some finality to this and soon.

Ms. BERKLEY. Mr. Burr, if I could correct one thing you said.

There is one State that doesn’t have nuclear waste and that is the

State of Nevada.

Mr. BURR. The gentlewoman’s point is made. I am sure that we

could find some radioactive areas out there, though. Thank you.

Ms. BERKLEY. I think what my colleague who spoke before me

said, the people of the State of Nevada don’t want this. They have

spoken loud and clearly to their representatives in Congress and

we have an obligation to those families to protect them to the best

of our ability. And because other Members of Congress have a problem regarding nuclear waste in their district near their population

centers doesn’t make it any better or easier for us to accept it to

alleviate your problem in order to exacerbate my own.

Mr. BARTON. Would the gentleman yield? I just want to ask

when we had an active military testing program for our nuclear

weapons, wasn’t that done in Nevada?

Ms. BERKLEY. Of course that was long before I was born.

Mr. BARTON. I understand that. Actually, some tests were done

as late as the 1980’s underground.

17

Ms. BERKLEY. That is correct. No, if I could answer and I don’t

mean this to sound sharp or——

Mr. BARTON. You can be sharp. You have got the right to be

sharp. I have to be polite, but witnesses can be sharp.

Ms. BERKLEY. Well, I would hope to match your politeness, and

this is said with all due deference and respect, but I grew up in

Las Vegas, a lot of my friends had pains, particularly dads in those

days that worked at the Nevada test site. When they were told by

this Federal Government that it was perfectly safe not only to be

at the Nevada test site but to participate in the both above-ground

and underground tests, and all they had to do was go home and

take a shower and they would be fine. Well, I just attended a hearing a couple of months ago in my district, where all the Nevada

test site workers that are dying of cancers and some of the most

hideous, heinous cancers that you and I have ever seen and hope

to God none of us ever experience. And this is the same government that is now telling the State of Nevada that it is perfectly

safe to store 100,000 tons of nuclear waste under Yucca Mountain.

They misled the Nevada public and the American public back in

the 1950’s and the 1960’s, 1970’s and 1980’s; I believe the Federal

Government is misleading us now.

Mr. BARTON. Well, I can’t comment on the 1960’s and 1970’s and

1980’s, but I can assure the gentlelady from Nevada that nobody

is misleading anybody in any State of the Union right now. That

is why we have the technical review board. That is why we are

doing the environmental impact statement. That is why this subcommittee has done a half a dozen hearings on this. That is why

I met with the county commissioners from your district. That is

why I met with State representatives and the State senators, why

I have been out there twice. I think it ought to be located at Yucca

Mountain. But I don’t think we ought to mislead anybody. And I

don’t think that the Clinton administration or the Bush administration or the Reagan administration or any of the administrations

that have been in office since the Nuclear Waste Policy Act was

passed in 1982 have done anything but try to be above board, so

that there is informed consent, at least informed discussion and debate.

Obviously, there is going to be a difference of opinion in democracy about some of these issues, that is why this hearing is being

held today. This subcommittee is not in the business of misleading

anybody in the United States of America, any constituent of any

Congressional district about what the true facts are.

Ms. BERKLEY. I appreciate that. And I have seen you, I know

that you have come to Las Vegas because we once shared a plane

ride together, and I knew that you were going to Las Vegas on behalf of Yucca Mountain. I don’t think it is an intentional misleading, but I don’t think anybody, scientists or government officials, could guarantee to the people of the State of Nevada that this

nuclear waste will never have a problem, there will be no groundwater problems, there will be no volcanic activity, there will be no

earthquake activity that would disturb the nuclear waste and create a problem.

And if I thought that anyone could give me that guarantee, I

would feel a whole lot better about this. But I am not talking about

18

the short run, 5, 10, 15, 20 years from now, in my lifetime, talking

about what may happen 100 years from now, and that is a blink

of an eye. I don’t think I could rest well in any grave knowing that

I have created this problem for my constituents and my children

and my children’s children if we didn’t vigorously defend against

putting nuclear waste at Yucca Mountain. And I know that you understand my position.

Mr. BARTON. I understand that. The gentleman from Oklahoma.

Mr. LARGENT. Ms. Berkley, I’d just like to ask you, can you give

us some examples of guarantees that you could make for 100 years

from today?

Ms. BERKLEY. That is exactly my point, Mr. Largent. Exactly my

point.

Mr. LARGENT. So we should do nothing ever, because you can’t

guarantee anything.

Ms. BERKLEY. No, of course not. What I think we should be

doing——

Mr. LARGENT. That is my point. My point is you can’t guarantee

anything 100 years from now. But that doesn’t mean that we

should do nothing today because we can’t guarantee something 100

or 1,000 years from now. I’d like to ask you this question, and that

is this, simply, a not-in-my-back-yard, or do you just totally oppose

all nuclear activity?

Ms. BERKLEY. Oh, no, not at all.

Mr. LARGENT. We should have nuclear activity in terms of generation of electricity?

Ms. BERKLEY. What I think the solution is——

Mr. LARGENT. Let me ask this question first. Do you support nuclear energy production of electricity?

Ms. BERKLEY. If, in fact, we could find a way of disposing with

the by-product of nuclear energy, I would not be opposed to its creation. Prior to Congress, in a past life I was in-house counsel for

Southwest Gas Corporation. I have an energy law background. So

this is an area that I know a little bit about. Now, I am not opposed to nuclear. What I am opposed to is this country hasn’t come

up with a policy of dealing with the nuclear waste other than

dumping it in the ground. What I would—I mean, this is a great

country. This is an extraordinary country. And we are at the beginning of a new millennium and the dawning of the 21st century.

Certainly there will be scientific breakthroughs in the next several

years that will afford us an opportunity of handling this very dangerous by-product of nuclear energy in a more efficient safer way.

I don’t believe dumping it in the Nevada Desert is going to be the

ultimate solution. Let us take the billions of dollars, extend the

areas that the nuclear waste is being stored at at the nuclear repositories now, do dry-cask storing, which is adequate for the next

century, and during that time, let us use these billions and billions

of dollars and come up with a scientific way of rendering this stuff

less toxic, less harmful, less dangerous. I would be all in favor of

that, because we still don’t have a good nuclear energy policy in

this country.

Mr. LARGENT. First of all, if you do know anything about this

issue, and I assume you do, then you know that we don’t have the

capacity to go another century with storing it in onsite facilities.

19

I mean, that just simply cannot happen. What I would say to you

is that do you believe that there is a scientific solution that is out

there that would guarantee us 100 years from now that there won’t

be a problem with it? Is there a scientific solution that would meet

the demands and the hurdles that you are placing on Yucca Mountain?

Ms. BERKLEY. I am a great optimist, and I believe in this country. If we could put a man on the moon with a concerted effort of

a 10-year plan, then if we put our minds together and put the scientific minds working on this and make this a national priority, we

could come up with a solution of rendering the toxic weight less

dangerous, less toxic and more safe so that we wouldn’t have to

keep relying on burying it under the ground.

What happens when Yucca Mountain is full and we keep producing this nuclear waste? What is the next State that is going to

be assaulted with this? And how many more years are you, Congress, going to be considering the next national repository? Yucca

Mountain is another temporary solution. We still will not have gotten to the major problem. And what happens when it is filled up?

Where do we go from there? Is it Texas next? Is it Oregon, Washington? I mean, which one of us wants to accept this stuff? None

of us.

So let’s roll up our sleeves, work together in a bipartisan way,

and figure out what we are going to do to render this stuff less

toxic and dangerous for all of us, for my sake as well as yours. I

don’t want to leave it in anybody’s district. And I don’t want to

take it in mine.

Mr. LARGENT. You can filibuster in the Senate. My question was

do you believe that there is a technological solution out there?

Ms. BERKLEY. Yes, I do.

Mr. LARGENT. That will guarantee us that 100 years after implementing this solution, that they can guarantee you that there won’t

be any problems whatsoever?

Ms. BERKLEY. The scientific solution may not be discovered at

this moment, but I believe it can be.

Mr. LARGENT. It is just a yes-or-no question.

Ms. BERKLEY. I think it is more complicated than a yes or no.

If you ask me does a scientist have a solution today as of June 23,

that I cannot answer. Do I think that if we spend—take the billions

of dollars that we are using now to ready Yucca Mountain and invest it in scientific studies, I do believe that we can come up with

an answer. I do believe in our scientists and I do believe in America.

Mr. LARGENT. Mr. Chairman, I yield back. I will just say that I

think that some of our best and brightest have come up with a solution. It is Yucca Mountain. I hope we can do better in the future

as well. But at this point in time, I think we have invested a lot

of time. This committee has spent a lot of time, and I yield back.

Mr. BARTON. Well, before we let the gentlewoman go, we want

her to know that the subcommittee goes on record as we support

America also. Let’s end this on a positive note that we can agree

on that.

Ms. BERKLEY. Well, I have to thank all of you. This is the first

time in the entire 18 months that I have served in Congress that

20

I have ever had the pleasure of being grilled by an entire subcommittee.

Mr. BARTON. Grilled? You haven’t seen grilled. Wait until next

week when Secretary Richardson is here. You will see grilled.

Ms. BERKLEY. I look forward to the opportunity of watching

somebody else in this seat. Thank you very much.

Mr. BARTON. Come back next week. Thank you.

Let’s hear from our second panel now, if they will come forward.

We have Dr. Ivan Itkin, who is the director of the Office of Civilian

Radioactive Waste Management at the Department of Energy, and

I have had the privilege of meeting Dr. Itkin in my office. He is

a distinguished gentleman who volunteered for that job, which

shows how much he loves his country that he took that position.

We have Mr. Carl Paperiello, who is the deputy executive director for Materials Research and State Programs for the Nuclear

Regulatory Commission. We have Mr. Steve Page, director of the

Office of Radiation for the Environmental Protection Agency. We

have Dr. Debra Knopman, who is a board member of the Nuclear

Waste Technical Review Board.

Last but not least, we have Dr. Kevin Crowley, who is the staff

director of the Board of Radioactive Waste Management for the National Research Council. Welcome, lady and gentlemen. Your testimony is in the record in its entirety. We will start with Mr.

Paperiello and ask you to summarize in 7 minutes, and we will go

right on down the line. Welcome to the subcommittee.

STATEMENTS OF CARL PAPERIELLO, DEPUTY EXECUTIVE DIRECTOR, MATERIALS RESEARCH AND STATE PROGRAMS,

NUCLEAR REGULATORY COMMISSION; IVAN ITKIN, DIRECTOR OF OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT, U.S. DEPARTMENT OF ENERGY; DEBRA S. KNOPMAN,

BOARD MEMBER, U.S. NUCLEAR WASTE TECHNICAL REVIEW;

STEPHEN D. PAGE, DIRECTOR, OFFICE OF RADIATION, U.S.

ENVIRONMENTAL PROTECTION AGENCY; AND KEVIN D.

CROWLEY, STAFF DIRECTOR, BOARD ON RADIOACTIVE

WASTE MANAGEMENT

Mr. PAPERIELLO. Mr. Chairman, members of the committee, the

staff of the NRC is pleased to testify about our regulatory oversight

of the management and disposal of high level radioactive waste and

spent nuclear fuel. Among the subjects I will discuss today is the

status of our review of DOE’s program to characterize the Yucca

Mountain site as a potential geological repository and our progress

in establishing site-specific licensing requirements for the proposed

repository.

The Commission continues to believe that a permanent geologic

depository is the appropriate mechanism for the United States to

ultimately manage spent fuel and other highly radioactive wastes.

The program remains on course consistent with our responsibilities under the Nuclear Waste Policy Act of 1982 and the Energy

Policy Act of 1992. We are in the middle of an important transition.

The staff is moving from the prelicense consultative role defined for

the NRC in the statute to its role as regulator and licensing authority as we prepare for possible submittal of a DOE license appliVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00024 Fmt 6633 Sfmt 6602 E:\HEARINGS\65916 pfrm08 PsN: 65916
21

cation. And I will note a number of the important milestones and

activities that comprise our program during this transition.

On February 22nd of last year, the commission published a proposed regulation 10 CFR part 63 for public comment. This is a sitespecific—we have a high-level waste rule. This is a site-specific rule

for Yucca Mountain based on our experiences to that date on studying the mountain.

As soon as we proposed our regulations, we embarked on a series

of public meetings to encourage involvement by members of the

public most affected by the decisions we face in establishing our

final rule for Yucca Mountain. From these meetings, together with

written submittals, we received more than 900 comments for proposed criteria. The NRC staff has carefully considered and analyzed these comments and has incorporated many of them in a

draft final rule that the commissioners now have before them.

Later last year, after the comment period for the NRC’s proposed

regulations closed, the EPA proposed standards in 40 CFR 197 for

Yucca Mountain. The NRC has provided extensive comments on

the EPA proposal. The NRC has identified serious concerns with

the proposed standards that if unchanged in the final standards,

will increase significantly the complexity of the NRC’s licensing

process without commensurate increase in the protection of public

health and safety in the environment.

That being said, however, we have made clear in our proposed

rules that once final EPA standards for Yucca Mountain are in

place, the NRC will amend its regulations as needed to confirm to

the final standards as required by law.

In July of last year, the DOE published for public comment its

draft environmental impact statement for proposed Yucca Mountain repository, and the NRC provided detailed comments on the

DEIS in February of this year. On May 4 of this year, DOE forwarded its revised siting guidelines at 10 CFR 963 to NRC for concurrence. We expect that the Commission will reach concurrence

finding on DOE’s draft guidelines later this year. We suspect that

DOE will prepare to issue a site recommendation in July of 2001.

Before then, the NRC expected to review a proposed DOE recommendation and provide comments as required by statute on sufficiency of DOE site characterization and waste form proposal.

If DOE makes a recommendation on the Yucca Mountain site,

and if the President and the Congress affirm that recommendation,

the DOE will then apply to the NRC for a license to construct a

repository. The NRC has 3 years to determine whether to approve

or deny the application, except that the Commission may extend

the deadline by not more than 1 year. Through early NRC staff

identification and clarification of key technical safety issues, we are

optimistic that we will be prepared to complete this demanding and

first-of-a-kind review in the time allotted. Consistent with this objective, we have completed rulemaking to establish a licensing support network using Web-based technology to promote access to documents and thereby hasten review of the license application.

I would like now to turn to the subject of DOE’s quality assurance activities involving Yucca Mountain. DOE has experienced

problems in the past in carrying out its QA program. In general,

DOE has done an acceptable job in uncovering its own quality asVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 E:\HEARINGS\65916 pfrm08 PsN: 65916
22

surance problems, but has been less successful in taking prompt

corrective action and preventing recurring problems. I am pleased

to be able to say that recent DOE actions have improved the picture considerably in this area. However, the task is not complete

and reflecting the need for continued vigilance, we have strengthened our oversight of DOE’s quality assurance activities.

In conclusion, it is important to stress that DOE bears the responsibility for demonstrating that licensing and certification requirements are met to protect public health and safety and the environment. The Commission independently must assess and find

that such a demonstration has been made before we can issue a license for any geological repository. Among other things, completion

of NRC’s review of a potential license application depends on the

timely establishment of scientifically sound standards and regulations, the receipt of a high quality license application from DOE,

and sufficient resources for the agency to maintain its independent

technical review capability.

I want to thank you for the opportunity to review the status of

the NRC’s high level waste regulatory program and will gladly answer any questions that you have.

[The prepared statement of Carl J. Paperiello follows:]

PREPARED STATEMENT OF CARL J. PAPERIELLO, DEPUTY EXECUTIVE DIRECTOR FOR

MATERIALS, RESEARCH, AND STATE PROGRAMS, U.S. NUCLEAR REGULATORY COM- MISSION

Overview

Mr. Chairman, members of the Subcommittee, the staff of the Nuclear Regulatory

Commission (NRC) is pleased to testify about our regulatory oversight of the management and disposal of high-level radioactive waste and spent nuclear fuel. Among

the subjects I will discuss today are the status of our review of the Department of

Energy’s (DOE’s) program to characterize the Yucca Mountain Site as a potential

geological repository and our progress in establishing site-specific licensing requirements for the proposed repository.

The Commission continues to believe that a permanent geologic repository is the

appropriate mechanism for the United States to ultimately manage spent fuel and

other high-level radioactive waste. We believe the public health and safety, the environment, and the common defense and security will be protected best by the development of a comprehensive system for the management and disposal of high-level

radioactive waste, that includes storage, transportation and deep underground disposal. In our view, a deep geologic repository is a sound and technically feasible solution to the problem of final disposition of spent nuclear fuel and other high-level

radioactive wastes.

Status of NRC’s HLW Regulatory Program

The NRC’s High-level Waste (HLW) regulatory program remains on course, consistent with our responsibilities under the Nuclear Waste Policy Act of 1982, as

amended, and the Energy Policy Act of 1992. This legislation specifies an integrated

approach and a long-range plan for storage, transport, and disposal of spent nuclear

fuel and HLW. It prescribes the respective roles and responsibilities of the NRC, the

DOE and the U.S. Environmental Protection Agency (EPA) in the nation’s HLW

program. The Congress assigned NRC extensive prelicensing responsibilities and the

regulatory authority to issue a license, if appropriate, only after deciding whether

a DOE license application for a geologic repository at Yucca Mountain, Nevada, complies with applicable standards and regulations.

The NRC staff is in the midst of an important transition—from the prelicensing,

consultative role defined for NRC in statute, which has been our emphasis to date,

to the role as regulator and licensing authority, as we prepare for a possible submittal of a DOE license application. In my testimony today, I will highlight a number of the important milestones and activities that comprise our program during

this important transition. Among these are: (1) establishment of a regulatory framework; (2) comment on the DOE’s draft Environmental Impact Statement (EIS) for

a proposed repository at Yucca Mountain; (3) review and, if appropriate, concur in

23

the revised DOE siting guidelines; (4) comment on a DOE site recommendation,

should the DOE elect to pursue development of a repository at Yucca Mountain; and

(5) if a license application is received, preparation for making a licensing determination in the time allotted by statute. In addition, I would like to say a few words

about NRC’s oversight of the DOE’s quality assurance activities and provide a brief

update of our transportation safety activities.

Establishment of a Regulatory Framework

We take seriously our obligations to provide a regulatory framework for the possible licensing of a geologic repository at Yucca Mountain; and to consult with the

DOE and other stakeholders, including the Nevada public, in advance of any license

application should one be received. We plan to have risk-informed regulations specific for Yucca Mountain in place by the end of this year. Under the Energy Policy

Act of 1992, the Commission must modify, if needed, its regulations to be consistent

with final EPA standards within a year of their issuance. Because in 1998 we expected only a very short period in which to issue final implementing regulations

after final EPA standards are issued, the Commission initiated its own rulemaking

in parallel with that of the EPA in formulating its standards. The NRC was concerned about its responsibility to make public, as soon as possible, how we plan to

implement the health-based standards called for by the Congress. In our view,

prompt, public access to our regulatory intentions was necessary, not only to enable

the DOE to begin preparing a possible license application but, just as importantly,

to allow for timely and meaningful public involvement in the development of our implementing regulations. After EPA issues final standards, we will act promptly to

prepare needed conforming revisions, if any.

On February 22 of last year, the Commission published proposed regulations at

10 CFR Part 63 for public comment. As soon as we proposed our regulations, the

NRC staff embarked on a series of public meetings to encourage involvement by

members of the public most affected by the decisions we face in publishing final regulations for Yucca Mountain. From these meetings, together with written submittals, we received more than 900 comments on our proposed criteria. The NRC staff

has carefully considered, and analyzed these comments, and has incorporated many

of them in a draft final rule that the Commissioners now have before them.

Later last year, after the comment period for NRC’s proposed regulations closed,

the EPA proposed standards at 40 CFR 197 for Yucca Mountain. The NRC has provided extensive comments on the EPA proposal. The NRC has identified serious concerns with the proposed standards that, if unchanged in the final standards, will

increase significantly the complexity of the NRC’s licensing process without commensurate increase in the protection of public health and safety and the environment. That being said, however, we made clear in our proposed rule, that after final

EPA standards for Yucca Mountain are in place, the NRC will amend its regulations, as needed, to conform to the final standards, as required by law.

NRC Reviews of DOE’s Draft EIS, Siting Guidelines and Site Recommendation

In July of last year, the DOE published, for public comment, its draft Environmental Impact Statement (DEIS) for a proposed Yucca Mountain repository. The

NRC provided detailed comments on the DEIS in February 2000. The NRC comments identified several broad issues and a number of specific topical areas that the

DOE should address to make the final EIS complete. The DOE is now completing

its final EIS which must, eventually, accompany DOE’s license application to construct a HLW repository. The NRC is required, by law, to adopt, to the extent practicable, the final DOE EIS. On May 4, 2000, the DOE forwarded its revised siting

guidelines at 10 CFR Part 963 for NRC review and concurrence. The DOE proposes

to use the revised guidelines to review and evaluate Yucca Mountain for recommendation as a potential repository site. We expect that the Commission will

reach a concurrence finding on DOE’s draft final guidelines later this year.

If the DOE elects to pursue development of Yucca Mountain as a repository, we

expect the DOE will prepare to issue a site recommendation in July of 2001. Before

then, the NRC expects to review a proposed DOE recommendation and provide comments, as required by statute, on the sufficiency of DOE’s site characterization and

waste form proposal. The NRC expects that it will take six months to complete the

necessary review of any site recommendation, and provide comments.

Preparation for Making a Licensing Decision

As part of our overall prelicensing strategy, we continue to focus our review on

the nine key technical issues that are most important to repository safety and,

therefore, to licensing. Since we redirected and streamlined our program several

years ago, the NRC staff has completed a number of significant reports on the status of resolution, at the staff level, of each of the nine key issues. Now, we are apVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 E:\HEARINGS\65916 pfrm08 PsN: 65916
24

plying the experience gained in preparing these reports to the development of a

Yucca Mountain review plan that will eventually guide our review of a license application. As this development progresses, we also continue to conduct public technical

exchanges between members of the NRC and DOE technical staffs and with NRC’s

Advisory Committee on Nuclear Waste.

If DOE makes a recommendation on the Yucca Mountain site, and if the President and Congress affirm that recommendation, the DOE will then apply to the

NRC for a license to construct a repository. The NRC has three years to determine

whether to approve or deny the application, except that the Commission may extend

the deadline by not more than one year. Through early NRC staff identification and

clarification of key safety issues, we are optimistic that we will be prepared to complete this demanding and first-of-a-kind review in the time allotted. Consistent with

this objective, we have completed a rulemaking to establish a Licensing Support

Network, using web-based technology to promote access to supporting documents

and, thereby, hasten review of the license application. A further rulemaking with

regard to the Licensing Support Network is now in preparation.

Quality Assurance

I would now like to turn to the subject of the DOE quality assurance activities

involving Yucca Mountain. DOE has experienced problems in carrying out its quality assurance program. In general, the DOE has done an acceptable job in uncovering its own quality assurance problems. However, it has been less successful in taking prompt corrective actions and preventing recurring problems. I am pleased to

be able to say that recent DOE actions have improved the picture considerably in

this area. However, the task is not complete and, reflecting the need for continued

vigilance, we have strengthened our oversight of DOE’s quality assurance activities.

Safety of Packages for Spent Fuel and HLW Transport

In addition to our oversight responsibilities for any potential geologic repository,

the NRC is charged with certifying the safety of the packages used to transport

spent nuclear fuel and high level waste. NRC continues to support the requirement

that waste shippers use NRC-certified packages for transport of spent fuel and highlevel waste. In the past year, NRC has reviewed and approved three dual-purpose

cask systems for storage and transport. We are also reviewing four more dual-purpose cask system designs.

The shipment of spent nuclear fuel in NRC-approved transportation containers

continues to have an unparalleled record of success from a safety perspective. To

date, there has not been a release of radioactive material from an accident involving

an NRC-approved spent fuel transportation container. In March 2000, NRC completed a safety study on spent fuel shipment risks. This study found the risks associated with transport of spent nuclear fuel by truck or train are even lower than

earlier risk estimates. NRC held a series of meetings in 1999 to interact with interested stakeholders in a public forum to discuss the issues related to spent fuel

transport. The NRC has more meetings planned for later this year.

Conclusion

It is important to stress that the DOE bears the responsibility for demonstrating

that licensing and certification requirements are met to protect public health and

safety and the environment. The Commission independently must assess and find

that such a demonstration has been made before we can issue a license for any geologic repository. Among other things, completion of NRC’s review of a potential license application depends upon: the timely establishment of scientifically-sound

standards and regulations; the receipt of a high-quality license application from the

DOE; and sufficient resources for the NRC to maintain its independent technical review capability. I want to thank you for the opportunity to review the status of

NRC’s HLW regulatory program, and will gladly answer any questions you may

have.

Mr. BARTON. Thank you, Doctor. We would now like to hear from

Dr. Itkin, and your statement is in the record. We recognize you

for 7 minutes. Welcome to the subcommittee.

STATEMENT OF IVAN ITKIN

Mr. ITKIN. Thank you, Mr. Chairman and members of the subcommittee. I am Ivan Itkin, Director of the Department of Energy’s

Office of Civilian Radioactive Waste Management.

25

I appreciate the opportunity to provide an update on the status

of our program and to address the issues of concern to the committee. Over the past few years, the Department has made significant progress toward a recommendation on the permanent solution

for spent nuclear fuel and high level radioactive waste.

We are on schedule to make a decision in 2001 on whether or not

to recommend the Yucca Mountain site as a repository. With sufficient appropriations, and if the site is suitable for recommendation

and is designated so by the Congress, we are on schedule to begin

emplacement of the waste in 2010.

Let me again emphasize that the overriding goal of the Federal

Government’s high level radioactive waste management policy is

the establishment of a permanent geologic repository. Permanent

geologic disposal not only addresses the management of spent nuclear fuel from commercial electric power generation, but is also essential to advancing our nonproliferation goals. The repository will

secure highly enriched spent nuclear fuel from foreign and domestic research reactors and surplus plutonium from dismantled nuclear weapons. A repository is necessary to support our nuclear

powered Naval fleet.

Finally, a permanent geologic repository is vital for cleaning up

the legacy of our past nuclear weapons production at sites throughout the country.

In the next year, we expect to complete the near-term scientific

and engineering work for a Secretarial decision on whether or not

to recommend the Yucca Mountain site for further development.

We are on schedule to complete the documentation required by law.

A Presidential decision to go forward with Yucca Mountain must

be based on science, and we are conducting a world class scientific

and technical program at Yucca Mountain.

We have had almost 5 years of direct examination of the geology

underneath Yucca Mountain, and we completed a 2,000 meter

cross-drift tunnel in December 1999 to develop a more complete

three-dimensional model of the geologic formation.

We continue to conduct the world’s largest thermal tests to assess how long-term exposure to heat from waste packages might affect the hydrology and near-field environment within the tunnels

that may be constructed within Yucca Mountain.

Since the release of the viability assessment in December 1998,

we have focused on reducing uncertainty in the models we use to

predict repository performance.

We have refined our repository design to be flexible and robust.

And we can adjust the period of ventilation, vary fuel staging at

the waste packages, and adjust waste package spacing.

Let me now turn to the program’s current activities. The program’s focus for early fiscal year 2001 is to complete the site recommendation consideration report. This report will be made available to the State of Nevada, the Nuclear Regulatory Commission,

and the public to inform them of our findings and to facilitate public comment on a possible recommendation.

The program issued the draft environmental impact statement

for a geologic repository in July 1999. More than 2,700 individuals

attended public hearings on the draft statement and more than 700

provided comments. We are presently analyzing the comments, preVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00029 Fmt 6633 Sfmt 6602 E:\HEARINGS\65916 pfrm08 PsN: 65916
26

paring responses, and continuing the development of the final environmental impact statement.

Under the Nuclear Waste Policy Act, the final environmental impact statement must accompany a recommendation from the Secretary to the President to develop this site. The Department has

requested $437.5 million for fiscal year 2001. This funding is necessary to complete the activities needed for an informed policy decision.

The full fiscal year 2001 request is also necessary for critical

work related to the preparation of a license application that was

deferred in past years due to funding levels below those published

in the viability assessment.

Let me address the program’s efforts to recompete the current

management and operating contract. The program’s current M&O

contract was awarded in 1991 and will expire in February of 2001.

Consistent with the Department’s contracting policy, we are recompeting our M&O contract. We received three proposals on June 8,

2000, at the close of the bidding period. We expect to award a follow-on later this year, and after awarding the contract, we expect—

no, in fact, we will demand an orderly transition, and have allocated funds for contractor transition in our fiscal year 2001 budget

request.

Both the Environmental Protection Agency and the Nuclear Regulatory Commission have proposed regulations for radiation dose

limits at Yucca Mountain and to license a repository at the site. To

align our site suitability criteria to the proposed regulations, the

Department has proposed 10 CFR 963, the Yucca Mountain site

suitability guidelines. We are hopeful that the Environmental Protection Agency will establish reasonable standards that are protective of the public health and safety and the environment, and that

these standards can be implemented by the Nuclear Regulatory

Commission in a rigorous licensing process.

It is our understanding that the Environmental Protection Agency will finalize the radiation protection standard for Yucca Mountain this summer.

Mr. Chairman, members of the committee, we have made significant progress. Since we set out to characterize the Yucca Mountain

site after enactment of the Nuclear Waste Policy Act of 1982, we

knew we would face many challenges. I believe by the end of next

year, we will have met the most difficult of those challenges. There

will likely continue to be additional scientific and institutional

issues to be addressed during any licensing process, but I believe

that the program is well positioned to move forward.

Thank you. I appreciate being allowed to present this testimony,

and I will be happy to answer any questions that you may have.

[The prepared statement of Ivan Itkin follows:]

PREPARED STATEMENT OF IVAN ITKIN, DIRECTOR, OFFICE OF CIVILIAN RADIOACTIVE

WASTE MANAGEMENT, U.S. DEPARTMENT OF ENERGY

INTRODUCTION

Mr. Chairman and members of the Subcommittee, I am Ivan Itkin, Director of the

Department of Energy’s Office of Civilian Radioactive Waste Management. I appreciate the opportunity to provide an update on the status of our Program and to address issues of concern to the Committee.

27

Over the past few years, the Department has made significant progress toward

a recommendation on a permanent solution for spent nuclear fuel and high-level radioactive waste. We are on schedule to make a decision in 2001 on whether or not

to recommend the Yucca Mountain site as a repository. With sufficient appropriations, and if the site is suitable for recommendation and is designated by Congress,

our current schedule is to submit the license application for repository construction

to the Nuclear Regulatory Commission in 2002, to begin construction in 2005 upon

receipt of construction authorization, and, if the site is licensed, to begin emplacement of the waste in the repository in 2010.

BACKGROUND

The overriding goal of the Federal Government’s high-level radioactive waste

management policy is the establishment of a permanent geologic repository.

Permanent geologic disposal addresses the management of spent nuclear fuel from

commercial electric power generation and from past Government defense activities,

and it is essential to advancing our non-proliferation goals. A permanent disposal

solution will also secure highly enriched spent nuclear fuel from foreign and domestic research reactors. It will also provide for the disposition of surplus plutonium

from dismantled nuclear weapons. A repository is necessary for the disposition of

spent nuclear fuel from our nuclear-powered naval vessels. Finally, a permanent

geologic repository is vital for cleaning up the legacy of our past nuclear weapons

production at sites throughout the country.

PROGRAM STATUS

The near-term scientific and engineering work that will be the foundation for a

Secretarial decision on whether or not to recommend the Yucca Mountain site to the

President is expected to be completed next year. A Presidential decision to develop

a repository must be based on sound science. It must not only be accompanied by

the documentation required by law, but also inform our policy makers, our regulatory oversight agencies, and the public regarding the scientific basis for the decision.

We are conducting a world-class scientific and technical program at Yucca Mountain. Through the Exploratory Studies Facility, we have had almost five years of direct examination of the geology underneath Yucca Mountain. From this study, our

scientists and engineers, including experts from our nation’s universities and our

National Laboratories, have advanced our understanding of a potential repository

system. This understanding led us to further focus our investigations, responding

in part to the Nuclear Waste Technical Review Board and other experts.

In response to requests from the Nuclear Waste Technical Review Board, we completed a 2000-meter cross-drift tunnel in December 1999. This year, we will complete niches and alcoves in the cross-drift tunnel that will assist us in developing

a more complete three-dimensional model of that geologic formation. For nearly two

years, we have gathered and integrated into our performance models data from the

cross-drift tunnel inside the mountain to refine our predictions of repository performance.

Within the Exploratory Studies Facility, we continue to conduct the largest thermal test of a geologic formation in the world. This test, commonly known as the

drift-scale test, assesses how long-term exposures to heat from waste packages

might affect the hydrology and near-field environment within tunnels that may be

constructed within Yucca Mountain. This work will help determine the effects of

heat on waste package performance and assist in the further refinement of repository design as we move forward toward licensing a repository, if the site is deemed

suitable.

Since the release of the Viability Assessment in December 1998, the primary objective of the program’s scientific and technical work has been reducing uncertainty

in our predictions of repository performance. Our repository design has been refined

to better manage thermal loads and reduce uncertainty. It is a flexible and robust

design that can accommodate various operational modes, including adjusting the period of ventilation, varying fuel staging and loading into waste packages, and adjusting waste package spacing to manage thermal loads.

This approach will permit future generations to evaluate actual repository performance, learn from the operations and monitoring, and close the facility when appropriate. A repository that is flexible to accommodate technical advances or future

changes in priority is one way to address concerns regarding the need for additional

information due to uncertainty.

28

PLANNED ACTIVITIES

Let me now turn to the Program’s current activities, and the major events on the

horizon. The culmination of the Program’s site characterization efforts is to prepare

the documentation required under the Nuclear Waste Policy Act to support a decision on whether or not to submit a site recommendation to the President. The Program’s focus for early Fiscal Year 2001 is to complete the Site Recommendation

Consideration Report. This report will present background information and descriptions of the site characterization program and the site. It will also include descriptions of the repository design, the waste form, and waste packages; a discussion of

data related to the safety of the site; and a description of the performance assessment of the repository. The Site Recommendation Consideration Report and its supporting documents will be made available to the State of Nevada, the Nuclear Regulatory Commission, and the public to inform them and to facilitate public comment

on a possible recommendation.

The Nuclear Waste Policy Act requires a final environmental impact statement

to accompany a site recommendation to the President, if the Secretary decides to

recommend the site for development as a repository. The Department issued the

Draft Environmental Impact Statement for a Geologic Repository for the Disposal of

Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye

County, Nevada in July 1999. The draft environmental impact statement provides

information on potential environmental impacts that could result from the construction, operation and monitoring, and eventual closure of a repository at Yucca Mountain.

We conducted a public comment period on the draft environmental impact statement from the end of July 1999 through February 28, 2000. Twenty-one hearings

were held, eleven throughout the country and ten in the State of Nevada. More than

2700 individuals attended those hearings and more than 700 provided comments.

We are presently analyzing the comments, preparing responses to be documented

in the comment response section of the final environmental impact statement, and

continuing development of the final environmental impact statement.

Our plan for Fiscal Year 2001 and beyond reflects the evolution of the project emphasis from scientific investigations to data synthesis, model validation, repository

and waste package design, safety analysis, and documentation. The Program’s nearterm priorities upon completion of site characterization will be to enhance and refine repository design features and to develop the remaining information required

to continue to a license application if a decision to recommend the site is made by

the Secretary and approved by the President and Congress.

FISCAL YEAR 2001 BUDGET

To support our future activities, the Department has requested $437.5 million for

Fiscal Year 2001. The funding we have requested is needed to complete the activities that are necessary for an informed policy decision. In addition to compiling the

remaining information that is necessary for a possible site recommendation, the full

Fiscal Year 2001 request is also necessary for critical work, related to the preparation of a license application, that was deferred in past years due to funding levels

below those published in the Viability Assessment. The Program has been able to

maintain its schedule for major milestones over the past years despite significant

reductions from our request level, but only by deferring critical work that still must

be completed.

Regaining momentum with the Fiscal Year 2001 request will enable the Program

to be more responsive to emerging scientific issues, such as those raised during our

extensive ongoing interactions with the Nuclear Waste Technical Review Board and

the Nuclear Regulatory Commission. Now, when we are so close to significant milestones, we should not allow insufficient resources to be a cause for delay.

CONTRACT RECOMPETITION

The Program’s current management and operating contract was awarded in 1991

and will expire in February 2001. Consistent with the Department’s contracting policy regarding management and operating contracts, and in conformance with direction provided in the enacted Energy and Water Development appropriations, we are

recompeting our management and operating contract.

The Department received three proposals on June 8, 2000, which was the close

of the bidding period. We have begun to evaluate submittals by the three teams,

which are led by MK Nevada LLC, Bechtel SAIC Company LLC, and TRW Parsons

Management and Operations LLC. We expect to award a follow-on performancebased contract late this summer or early in the fall. After awarding the contract,

29

we expect an orderly transition. We have allocated funds for contractor transition

in our Fiscal Year 2001 budget request.

REGULATORY ACTIVITIES

We have proposed 10 CFR 963, Yucca Mountain Site Suitability Guidelines, for

use by the Department in evaluating site suitability. This proposal is intended to

align the suitability criteria in the Department’s evaluation process with the standards being promulgated by the Environmental Protection Agency and the licensing

criteria being promulgated by the Nuclear Regulatory Commission. Specifically, the

Environmental Protection Agency and Nuclear Regulatory Commission are each revising the regulatory framework for standards involving radiation dose limits at

Yucca Mountain and for licensing this site, respectively.

We are hopeful that the Environmental Protection Agency will establish reasonable standards that are protective of public health and safety and the environment,

and that these standards can be implemented by the Nuclear Regulatory Commission in a rigorous licensing environment. It is our understanding that the Environmental Protection Agency will finalize the radiation protection standard for Yucca

Mountain this summer. Soon afterwards, we expect the Nuclear Regulatory Commission to modify its licensing criteria to be consistent with the standard.

CONCLUSION

As I noted at the beginning of my testimony, we have made significant progress.

Since the enactment of the Nuclear Waste Policy Act in 1982, our nation has made

a substantial investment in permanent geologic disposal. Approximately four billion

dollars and years of cutting-edge science and engineering have brought us to this

point. When we set out to characterize the Yucca Mountain site through an ambitious scientific program, we knew we would be faced with challenges. I believe by

the end of next year we will have met the most difficult of those challenges. There

will likely continue to be additional scientific and institutional issues to be addressed during any licensing process. But, I believe the Program is well positioned

to move forward.

Thank you. I would be pleased to answer any questions you may have.

Mr. BARTON. Thank you, Doctor.

We now would like to hear from another doctor—we are getting

overwhelmed with Ph.D.’s today—Dr. Debra Knopman, who is the

board member from the Nuclear Waste Technical Review Board,

which is tasked with overseeing all the scientific analysis on these

decisions. Your statement is in the record in its entirety and we

would welcome you to summarize it for 7 minutes.

STATEMENT OF DEBRA S. KNOPMAN

Ms. KNOPMAN. Thank you, Mr. Chairman, and members of the

subcommittee. I am a member of the Nuclear Waste Technical Review Board. My full-time job is director of the Center for Innovation and the Environment of the Progressive Policy Institute. As

most of you may know, the Board members serve in a part-time capacity. I am pleased to act as the Board’s representative today. Our

Chairman, Dr. Jared Cohon, President of Carnegie Mellon University, sends his regrets at not being here. I will make summary remarks.

Mr. Chairman, when Congress created the Nuclear Waste Technical Review Board in the 1987 amendments to the Nuclear Waste

Policy Act, it gave the Board a very important and unique mandate. That mandate is to conduct an independent review of the

technical and scientific validity of activities conducted by the Secretary of Energy in implementing the Act, including characterization of the Yucca Mountain site and packaging and transportation

of spent nuclear fuel and high level radioactive waste.

30

I would like to update the subcommittee this morning briefly on

some of the Board’s most recent recommendations on the DOE

safety strategy for the Yucca Mountain site, methods for predicting

repository performance, and scientific studies of Yucca Mountain. I

would like to make four points.

Point 1: Representation of uncertainties about the Yucca Mountain site will be an important component of a site recommendation

decision document. The Board continues to endorse the use of performance assessment, sometimes called TSPA, supplemented by

other lines of evidence for making a site suitability determination.

While the numerical models in a performance assessment help us

to understand and estimate how a repository might perform at

Yucca Mountain, the models are based on many assumptions. For

example, underlying the models are assumptions about the natural

environment, including climate, water movement, chemistry, et

cetera, and about the engineered system, including corrosion and

other processes.

The Board believes that explaining the uncertainties inherent in

the PA and the underlying assumptions as clearly and fully as possible is essential for technical credibility and sound decisionmaking. The board is concerned that a performance assessment

without such an explanation could deprive policymakers of critical

information on possible tradeoffs between projected performance

and uncertainty in those projections.

Let me give you an example. One policymaker might be willing

to accept development of a repository that would release half of the

allowable dose and have only a 1-in-1,000 chance of exceeding that

limit. However, that same policymaker might decline to develop a

repository that is expected to release only a 10th of the allowable

dose but has a 1-in-4 chance of exceeding the limit.

Another policymaker’s preferences might be the opposite. Because the uncertainties about repository system performance may

be substantial, estimates of uncertainty about doses are at least as

important as estimates of performance.

DOE and the Board have had numerous exchanges on this point,

and we understand that the program is making an effort to respond to the Board’s concerns.

The second point I would like to make: A case for repository safety must be built on multiple lines of evidence, not just a complex

computer model. Although we endorse the use of performance assessment modeling, the Board believes that the modeling should

not be used as the sole source of guidance about long-term performance of the repository system. The Board supports the DOE’s use

of multiple and independent lines of argument and evidence, including defense-in-depth, safety margin, natural analogs and performance confirmation testing to supplement the use of TSPA, the

total system performance assessment, in its case regarding Yucca

Mountain site suitability.

In other words, this is a matter of not putting all the scientific

eggs in one basket of computer modeling. The Board believes that

the program is making an effort to develop these additional lines

of evidence. It is unclear at this time how far along DOE will be

in their development at the time of the site recommendation consideration report.

31

Third point: There are important connections between repository

design and uncertainties in the safety case. In other words, evaluation of the site’s suitability is dependent, to a considerable degree,

on confidence in the technical case made for performance of a proposed repository and waste package design. That is the reason why

one way to address uncertainties in the safety case is to reduce

them by modifying repository design.

In particular, the Board has suggested that the DOE investigate

the effects of heat on the waste packages, repository tunnels, and

hydrologic and hydrogeochemical processes at the site. The Board

made this suggestion because higher temperatures, especially if

water is present in repository tunnels, appear to carry additional

uncertainties in estimating repository system performance in comparison to lower temperature below-boiling conditions in the rocks

surrounding the tunnels.

In the past, DOE has maintained that above-boiling repository

designs have the potential to vaporize water in the rocks surrounding the repository tunnels, thereby keeping the waste packages essentially dry for up to 1,000 years.

The Board is concerned that the performance assessment may

not, in its current state of development, capture adequately how

the thermal, hydrologic and other processes in the mountain interact. And if this is the case, then the PA model may not be able to

accurately represent the uncertainty associated with this aboveboiling design.

A below-boiling design may have the potential to reduce concerns

about these coupled processes, but more thorough analysis is needed before any judgment is made about the optimal thermal conditions for the repository operation. The Board is very pleased that

DOE has begun preliminary work in this area.

Fourth point: Important scientific studies are still going on at

Yucca Mountain. The primary focus of the scientific work now in

progress at Yucca Mountain is to reduce uncertainties through the

acquisition and analysis of additional relevant data. For example,

the Board believes on the basis of current knowledge that the DOE

has chosen the best materials available for the waste package.

However, our experience with the materials extends only over a

few decades a short time relative to the tens of thousands of years

of their intended life in a repository.

The Board is closely following the DOE’s efforts to address questions about stress corrosion cracking and about dissolution of the

passive layer around the waste package that would act as a barrier—corrosion barrier in the alloy being proposed for the package.

The east-west cross-drift recommended by the Board and completed

in October 1998 by DOE continues to yield scientific dividends and

will help address some of the current questions about the rock

where the proposed repository would actually be located.

In conclusion, Mr. Chairman, the Board believes that the DOE’s

efforts to develop the site recommendation consideration report

have been very useful to identify issues that they would need to resolve or clarify in a final site recommendation report. At this point,

the DOE has not encountered any single issue in characterizing the

Yucca Mountain site that automatically eliminates it from consideration as the location of a permanent repository for spent nuclear

32

fuel and high level radioactive waste. However important technical

questions remain about Yucca Mountain, especially about the effects of heat on the movement of water in the mountain and on the

associated transport of radionuclides.

DOE is taking steps to address these uncertainties, but some uncertainty will inevitably continue about predictions of repository

performance. This may be true to some extent at any site. At the

time the decision is made onsite recommendation, the Board believes it is critical that DOE not only offer estimates of performance, but also clarify the extent and significance of the scientific

uncertainties that are a vital part of decisionmaking.

Thank you very much for this opportunity to provide the Board’s

views. I would be happy to respond to questions.

[The prepared statement of Debra S. Knopman follows:]

PREPARED STATEMENT OF DEBRA KNOPMAN, U.S. NUCLEAR WASTE TECHNICAL

REVIEW BOARD

Mr. Chairman and members of the Subcommittee. I am Debra Knopman, a member of the Nuclear Waste Technical Board. My full-time job is Director of the Center

for Innovation and the Environment of the Progressive Policy Institute. It is my

pleasure to act as the Board’s representative this morning and to express the views

of the Board on progress in the Yucca Mountain site-characterization program. The

Board’s Chairman, Dr. Jared L. Cohon, sends his regrets at not being able to be

here today.

With your permission, Mr. Chairman, I will make some brief summary remarks

and ask that my full statement be entered into the hearing record.

The Board’s Mandate

Mr. Chairman, when Congress created the Nuclear Waste Technical Review

Board in the 1987 amendments to the Nuclear Waste Policy Act (NWPA), it gave

the Board a very important—and unique—mandate. That mandate is to conduct an

independent review of the technical and scientific validity of activities conducted by

the Secretary of Energy in implementing the NWPA, including characterization of

the Yucca Mountain site and packaging and transportation of spent nuclear fuel and

high-level radioactive waste. Congress intended the Board to communicate its findings and recommendations to the Secretary and to Congress in a timely fashion before important decisions are made, not after the fact.

The Board takes its charge very seriously, Mr. Chairman, and we are pleased to

have this opportunity to update the Subcommittee on the Board’s view of the Yucca

Mountain program before the release of the Department of Energy’s (DOE) site recommendation consideration report, or SRCR, which currently is scheduled for the

end of this year. In particular, I would like to update the Subcommittee briefly on

some of the Board’s most recent recommendations on the DOE’s safety strategy for

the Yucca Mountain site, methods for predicting repository performance, and scientific studies of Yucca Mountain.

The DOE’s Site Recommendation Consideration Report

As I mentioned, Mr. Chairman, the DOE intends to issue a site recommendation

consideration report on Yucca Mountain at the end of this calendar year. The DOE

plans to update the SRCR and use it along with other information called for in the

Nuclear Waste Policy Act as the basis of a site recommendation, currently scheduled

for mid-2001.

According to the DOE, the SRCR will include four elements: a comprehensive

computer model called the ‘‘total system performance assessment,’’ or TSPA; a qualitative description of the attributes of the Yucca Mountain site; a repository design

and safety case; and an outline of future research needs. Over the last few months,

the Board has commented to the DOE on some of these issues. I will briefly summarize some of our most recent comments.

Representation of uncertainties about the Yucca Mountain site. The Board continues to endorse the use of performance assessment, or PA, supplemented by other

lines of evidence, for making a site-suitability determination. While the numerical

models in a PA help us understand and estimate how a repository might perform

at the Yucca Mountain site, the models are based on many assumptions. For example, underlying the models are assumptions about the natural environment, includVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 E:\HEARINGS\65916 pfrm08 PsN: 65916
33

ing climate, water movement, chemistry, seismicity, and volcanism, and about the

engineered system, including corrosion and other processes. The assumptions may

be based on field and laboratory data, on the results of expert judgment, or on detailed conceptual and numerical analyses.

The Board believes that explaining the uncertainties inherent in the PA and the

underlying assumptions as clearly and fully as possible is essential for technical

credibility and sound decision-making. The Board is concerned that a PA without

such an explanation could deprive policy-makers of critical information on possible

trade-offs between projected performance and the uncertainty in those projections.

For example, one policy-maker might be willing to accept development of a repository that would release half of the permitted dose and have only a 1 in 1,000 chance

of exceeding the permitted dose. However, that same policy-maker might decline to

develop a repository that is expected to release only a tenth of the permitted dose

but that has a 1 in 4 chance of exceeding the permitted dose. Another policy-maker’s

preferences might be the opposite. Because the uncertainties about repository system performance may be substantial, estimates of uncertainty about doses are at

least as important as estimates of performance.

To help decision-makers better understand estimates of repository performance in

the PA, the Board recommends that the DOE include in a site recommendation document a description of critical assumptions, an explanation of why particular parameter ranges were chosen, a discussion of data limitations, an explanation of the

basis and justification for using expert judgments, and an assessment of confidence

in the conceptual models used.

In addition, the Board recommends that the uncertainties associated with the performance estimates be identified and quantified well enough so that the performance estimates can be put in the context of what is well known, what is less well

known, and what is unknown (or unknowable) about Yucca Mountain. The DOE and

the Board have had numerous exchanges on this point, and we understand that the

program is making an effort to respond to the Board’s concerns.

Building a case for repository safety. Although we endorse the use of PA, the

Board believes that PA modeling should not be used as the sole source of guidance

about the features, events, and processes that might affect the long-term performance of the repository system. Therefore, the Board supports the DOE’s use of multiple and independent lines of argument and evidence, including defense-in-depth,

safety margin, natural analogs, and performance confirmation testing, to supplement the TSPA in its case regarding Yucca Mountain site suitability. These additional elements, combined with a clear description of uncertainty as described above,

will present a more technically defensible demonstration of repository safety than

would any element by itself. In other words, this is a matter of not putting all the

scientific eggs in one basket of computer modeling. The Board believes that the program is making an effort to develop these additional lines of evidence, but it is unclear at this time how far along DOE will be in their development at the time of

the SRCR.

Connections between repository design and uncertainties in the safety case. One

way to address uncertainties is to reduce them by modifying repository design. In

early1999, the Board recommended to the DOE that it analyze alternatives to the

repository and waste package designs included in the DOE’s 1998 viability assessment. In particular, the Board suggested that the DOE investigate the effects of

heat on the waste packages, repository tunnels, and hydrologic and

hydrogeochemical processes at the site. The Board made this suggestion because

higher temperatures, especially if water is present in repository tunnels, appear to

carry additional uncertainties in estimating repository system performance in comparison to lower-temperature, below-boiling conditions in the rock surrounding the

tunnels. In the past, the DOE has maintained that above-boiling repository designs

have the potential to vaporize water in the rock surrounding the repository tunnels,

thereby keeping the waste packages essentially dry for up to a thousand years.

Understanding the differences in estimated performance and associated uncertainties under different temperature conditions is an important component of our

overall understanding of potential repository performance at the Yucca Mountain

site. However, the Board is concerned that PA may not in its current state of development capture adequately how the thermal, hydrologic, mechanical, and chemical

processes in the mountain interact. If this is the case, then the PA model may not

accurately represent the uncertainty associated with above-boiling designs. A belowboiling design may have the potential to reduce concerns about these ‘‘coupled processes.’’ Nonetheless, more thorough analysis is needed before any judgment is made

about the optimal thermal conditions for repository operation.

In any case, Mr. Chairman, the Board believes that an analysis of the tradeoffs

between estimates of performance and the uncertainties in those estimates is essenVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 E:\HEARINGS\65916 pfrm08 PsN: 65916
34

tial before a technically-defensible decision can be made on repository design. The

Board is pleased that the DOE has begun preliminary work in this area.

Important scientific studies continue at Yucca Mountain. An important aspect of

reducing uncertainties is obtaining relevant data. For example, the Board believes,

on the basis of current knowledge, that the DOE has chosen the best materials

available for the waste package. However, experience with the materials extends

over only a few decades—a short time relative to the tens of thousands of years in

their intended life in a repository. The Board is closely following the DOE’s efforts

to address questions about stress corrosion cracking and about dissolution of the

passive layer that acts as a corrosion barrier in the alloy that has been selected for

the exterior of the waste package. Answering these questions should help reduce uncertainties and increase confidence in predictions of waste package performance that

are extrapolated from present-day experience.

The east-west cross drift recommended by the Board and completed in October

1998 by the DOE continues to yield dividends in scientific information that help to

address some of the current questions about the properties of the layer of rock

where most of the waste would be placed and about how liquid water and water

vapor will move within that layer. In addition, the ongoing drift-scale heater test,

now in its third year, should provide important information on the general effects

of heat on the mountain.

Conclusion

In conclusion, Mr. Chairman, on the basis of what we know at this time, the

SRCR will provide an important analysis of key issues that are likely to be included

in a final technical document accompanying a site recommendation. Although the

Board cannot say whether the SRCR itself will be sufficient for determining site

suitability, the Board believes that the DOE’s efforts to develop the SRCR have been

very useful in helping the DOE identify issues that would have to be resolved or

clarified in a final site recommendation report.

At this point, the DOE has not encountered any issue in characterizing the Yucca

Mountain site that automatically eliminates it from consideration as the location of

a permanent repository for spent nuclear fuel and high-level radioactive waste.

However, important technical questions remain about Yucca Mountain, especially

about the effects of heat on the movement of water in the mountain and on the associated transport of radionuclides. The DOE is taking steps to address these questions, but some uncertainty will inevitably continue about predictions of the performance of a potential repository system. This may be true to some extent at any

site.

At the time a decision is made on site recommendation, the Board and the scientific community are likely to be asked at least two questions: (1) Is the underlying

science broadly regarded as technically credible and sound? and (2) Are the uncertainties in estimates of performance displayed clearly and openly, especially about

the major factors that may lead to a potential radioactive release? A major question

for policy-makers at that point may be whether the site is suitable, given the level

of uncertainty associated with the DOE’s site-suitability determination. The Board

believes it is critical that the DOE not only offer estimates of performance but also

clarify the extent and significance of the technical and scientific uncertainties. Understanding uncertainties is vital for sound decision-making.

Thank you very much for this opportunity to provide the Board’s views. I will be

happy to respond to questions.

Mr. BARTON. Thank you, Doctor. We now would like to hear from

the director of the Office of Radiation at the U.S. Environmental

Protection Agency, Mr. Steven Page. Your statement is in the

record in its entirety and we ask you to summarize it in 7 minutes.

STATEMENT OF STEPHEN D. PAGE

Mr. PAGE. Thank you, Mr. Chairman, and members of the subcommittee. I will focus my brief remarks on the issues that I understand are of particular interest to you and the subcommittee

this morning. The Energy Policy Act of 1992 directed EPA to set

site specific public health and safety standards for Yucca Mountain. That legislation also required the National Academy of

Sciences to conduct an analysis of the scientific basis for the standards to be applied to Yucca Mountain.

35

Since then, EPA has finalized its generic high level waste standards and certified a deep geological repository that complies with

those standards. During the past 10 years, EPA has been working

closely with DOE, NRC, OSTP, and the National Academy of

Science to apply these standards and to develop site specific standards for Yucca Mountain that are technically sound and achievable,

legally defensible, and above all, are protective of public health and

the environment.

In August 1999, we published our proposed Yucca Mountain

standards. We received approximately 800 public comments from

70 groups or individuals which we will be responding to in writing

at the time we issue our final standards. We received extensive

comments from DOE and NRC as well as other government entities, the National Academy of Sciences, industry, and environmental groups, tribal organizations, scientific associations, and

members of the general public.

Now, I would like to turn to the three main elements in our proposed disposal standards: Individual protection, human intrusion,

and groundwater protection.

We received more comments on these three issues than on any

other aspect of the proposed rule. The individual protection standard focuses on exposures to an individual whose lifestyle is similar

to people living today in the Yucca Mountain region and who obtains drinking water and food from local sources. The human intrusion standard focuses on evaluating the ability of the repository to

withstand a single intrusion event. And third, the groundwater

standard protects important natural resources by focusing on the

quality of the aquifer supplying water to downgradient communities.

As directed by the Energy Policy Act, our proposed Yucca Mountain standards are based on and generally consistent with the recommendations of the National Academy of Sciences. The NAS commented that the individual protection standard of 15 millirem is

within the risk range they recommended, and that the human intrusion standard very closely follows their recommendations.

However, there were some differences on the proposed groundwater protection standard, which I would like to address briefly.

The NAS said that a separate groundwater standard is unnecessary and that it lacks a sound scientific basis. However, the NAS

also recognized that EPA does have the authority to consider policy

issues in setting a separate groundwater protection standard. They

recommended that we clearly identify the standard as an implementation of policy.

Historically, this administration as well as previous administrations have had a policy of protecting groundwater resources that

currently are being used, or that potentially could be used as a

source of drinking water. More than 50 percent of the U.S. population draws on groundwater for its potable water supply. Proper

cleanup of contaminated groundwater is often difficult, if not impossible, to achieve and it is very expensive if it can be done at all.

It is important to remember that the aquifer under Yucca Mountain currently is used as source of drinking water. Therefore, we

proposed protection of groundwater at Yucca Mountain to the same

level as the maximum contaminant levels, or the MCLs, for radioVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00039 Fmt 6633 Sfmt 6602 E:\HEARINGS\65916 pfrm08 PsN: 65916
36

nuclides that we established under the authority of the Safe Drinking Water Act. As you may be aware, virtually every State has

taken steps to comprehensive groundwater protection. Forty-one

States have numeric or narrative groundwater standards to protect

their groundwater currently. Groundwater protection is also applied to every hazardous waste facility in this country.

The citizens of Nevada, particularly in a region growing as rapidly as the Las Vegas metropolitan area should be extended the

similar type of protection for the disposal of spent nuclear fuel and

high-level radioactive waste in the Yucca Mountain repository.

An important question that some commenters raise is the need

for a separate groundwater protection standard in addition to at

all-pathways individual protection standard. Our proposed rule

contains two complementary standards: A 15 millirem all-pathways

individual protection standard and a 4 millirem groundwater protection standard. While the 15 millirem proposed standard directly

protects individuals who may receive exposure from radionuclides

released from the repository, the 4 millirem level protects the

groundwater resource, as we mentioned earlier. This level of protection is derived from the MCLs that are used to define acceptable

supplies of drinking water. Similarly, should groundwater that is

or could be used for drinking water be a significant pathway,

present and future users of the groundwater resource are adequately protected. By extension, it provides protection to individuals who now live, or may live in the future, in the vicinity of

Yucca Mountain.

We understand that DOE still has to undergo the NRC licensing

process. However, to date, DOE’s ongoing studies show compliance

with the proposed groundwater standard, although EPA is still considering options and alternatives for the final rule. DOE’s costs for

the facilities are driven by many external influences, including

EPA’s proposed standard, all of which strive to enhance repository

safety. Other more notable influences include the recommendations

of the Nuclear Waste Technical Review Board and the rigorous

NRC licensing process.

Further, EPA’s current schedule to issue the final standard this

summer does not adversely impact DOE’s ability to make a site

recommendation as planned. Thank you again for inviting me to

testify before the subcommittee today, and I am happy to answer

any questions that you may have.

[The prepared statement of Stephen D. Page follows:]

PREPARED STATEMENT OF STEPHEN D. PAGE, DIRECTOR, OFFICE OF RADIATION AND

INDOOR AIR, U.S. ENVIRONMENTAL PROTECTION AGENCY

INTRODUCTION

Good morning Chairman Barton and Members of the Subcommittee. It is my

pleasure to appear before you today to provide you with an update on the Environmental Protection Agency’s (EPA) environmental protection standards for the proposed geologic repository at Yucca Mountain, Nevada. I will update you on the status of our final standards and focus on issues of interest to the Subcommittee.

I would like to begin by reviewing EPA’s statutory authority for issuing the Yucca

Mountain standards and the process that we are following in developing the standards. I also will discuss the National Academy of Science’s (NAS) technical recommendations, and some important elements of our proposed standards, including

the proposed ground water protection standard for Yucca Mountain. Finally, I will

37

generally address the expected impact of our proposed standards on the cost of the

repository.

We believe that, as a matter of policy, the environmental protection standards

that EPA ultimately issues should consider four primary principles: good science,

cost-effectiveness, equity, and pollution prevention.

STATUTORY AUTHORITY

The Energy Policy Act of 1992 [Pub. Law No. 102-486, 106 Stat. 2776, 42 U.S.C.

§ 10141 n. (1994)] gives EPA the authority to establish public health and safety

standards for Yucca Mountain. This Act states that EPA shall promulgate ‘‘public

health and safety standards for protection of the public from releases from radioactive materials stored or disposed of in the Yucca Mountain repository’’ [§ 801(a)(1)

of the Energy Policy Act]. The Act further states that EPA’s standards ‘‘shall be the

only such standards applicable to the Yucca Mountain site.’’

Prior to the enactment of the Energy Policy Act, EPA developed generic radioactive waste disposal regulations that applied to all radioactive waste disposal sites,

including Yucca Mountain, which was currently under consideration as the Nation’s

first geologic repository for commercial nuclear waste. These regulations are found

at 40 CFR Part 191 (50 FR 38066, September 19, 1985). These generic disposal regulations were applied to the Waste Isolation Pilot Plant (WIPP) in New Mexico,

which EPA certified in 1998, and is currently operating as the Nation’s first geologic

disposal facility for transuranic radioactive waste produced as a result of our Nation’s defense programs.

In 1987, EPA’s generic disposal regulations were remanded by the U.S. Court of

Appeals for the First Circuit [NRDC v. EPA, 824 F 2d 1258 (1st Cir. 1987)], because, among other things, we had not properly considered ground water protection.

Also in 1987, the Nuclear Waste Policy Act was amended (NWPAA, Pub. L. 100-

203), selecting Yucca Mountain as the sole site to be characterized for high-level radioactive waste and spent nuclear fuel disposal. Then, in 1992, the WIPP Land

Withdrawal Act (WIPP LWA, Pub L. 102-579) was enacted, which directed EPA to

finalize the generic disposal regulations at 40 CFR Part 191 and certify whether

WIPP was a suitable site for transuranic waste disposal. The WIPP Land Withdrawal Act also exempted Yucca Mountain from the 40 CFR Part 191 generic radioactive disposal standards.

So, in 1992, with the enactment of the Energy Policy Act, EPA was directed by

Congress to set site-specific environmental protection standards for Yucca Mountain. In doing so, EPA was to consider technical recommendations from the National

Academy of Sciences (NAS). The NAS issued its Yucca Mountain report in 1995. Between 1995 and 1999, when EPA issued our proposed environmental protection

standards for Yucca Mountain, we held technical discussions with the NAS, as well

as numerous interagency discussions with DOE, the Nuclear Regulatory Commission (NRC), the Office of Management and Budget, the Office of Science and Technology Policy, and other federal agencies to discuss important technical and policy

issues associated with the development of the standards.

STANDARDS DEVELOPMENT PROCESS

EPA published its proposed standards in the Federal Register on August 27, 1999

(64 FR 46976). We are working on developing the final rule, and we anticipate promulgating the final rule this Summer. We received extensive comments from DOE

and NRC, as well as other government entities, NAS, industrial and environmental

advocacy groups,Tribal organizations, scientific associations, and members of the

general public. We received approximately 800 public comments from 70 groups or

individuals which we will be responding to in writing at the time we issue our final

standards.

We have made every effort to consider all sides of the issues that have come to

our attention. This includes meetings with interested parties and discussions within

the Administration. A significant amount of this time has been spent addressing scientific issues in coordination with NAS, the Office of Science and Technology Policy,

DOE and NRC. EPA has worked diligently with these organizations to resolve the

many complex issues. We are currently in the final stages of drafting the final rule

and supporting documents for our internal Agency review process. These documents

include the preamble and rule, extensive technical background information document, economic impact analysis, and detailed response to comments document. Once

these documents have been reviewed within EPA, we will begin the inter-agency review process administered by the Office of Management and Budget, in which DOE

and NRC will participate.

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We are taking the necessary time to ensure that we prepare standards that are

technically sound, legally defensible, can be implemented reasonably, and are protective of public health and safety from potential releases from Yucca Mountain.

During the public comment period, and thereafter, EPA staff traveled to local communities to hold public hearings and meetings to discuss the standards, EPA’s role

with respect to the other agencies’ roles, and to answer general questions about the

Agency’s process for setting the standards. These meetings were held with community and Tribal leaders, as well as with state and county representatives.

NATIONAL ACADEMY OF SCIENCE’S RECOMMENDATIONS AND COMMENTS

The Energy Policy Act required us to contract with the NAS to conduct a study

to provide findings and recommendations on reasonable standards for protection of

the public health and safety. On August 1, 1995, the NAS released its report (‘‘the

NAS Report’’), titled Technical Bases for Yucca Mountain Standards. Since 1995,

EPA has thoroughly studied the NAS report and the public comments received on

the report in order to propose the standards for Yucca Mountain. The EPA’s proposed Yucca Mountain standards are based on and consistent with the recommendations of the NAS. Where our proposed rule departed from a strict reading of the

NAS report, we made a special effort to explain our reasoning.

The development of the proposed rule for Yucca Mountain was guided by the findings and recommendations of the NAS because of the special role Congress gave the

NAS and because of the NAS’s scientific expertise. We worked very hard to incorporate NAS’s comments into our proposed rule; and, in some cases we have used

NAS’s recommendations to inform our policy decisions. In its comments on our proposed standards for Yucca Mountain, the NAS is supportive of many aspects of our

proposed rule and provides recommendations for improvement in areas where we

disagree.

IMPORTANT ASPECTS OF EPA’S ENVIRONMENTAL PROTECTION STANDARDS

The three main elements proposed in our proposed standards are the individualprotection standard, the ground water protection standard, and the human intrusion

standard. Each standard must be met for DOE to be in compliance with our rule.

Provided below are some of the issues on which NAS and others had important comments.

The individual-protection standard focuses on exposures to an individual whose

lifestyle is similar to people living today in the Yucca Mountain region, and who obtains drinking water and food from local sources. The ground water protection

standard protects important natural resources by focusing on the quality of the aquifer supplying water to downgradient communities. The human intrusion standard

focuses on evaluating the ability of the repository to withstand a single intrusion

event.

Individual Protection

In its proposal, EPA adopted an annual dose of 15 millirem from all exposure

pathways as protective. This is equivalent to the NAS-recommended annual risk

range of 1 x 10¥6 to 1 x 10¥5, which translates to a dose range of 2 to 20 millirem/

year. The annual risk associated with EPA’s proposed 15 millirem standard and 4

millirem standard for ground water fall within this range. In its comments on the

proposed rule, NAS determined that the individual protection standard proposed by

EPA fell within the range of values it suggested. In those comments, the NAS stated

that, ‘‘EPA appears to recognize that its standard must be written in a way that

provides appropriate protection to the individuals who have the highest potential for

exposure... while avoiding unrealistic and unnecessarily conservative assumptions

for individual exposure.’’

Human Intrusion

In our proposed rule, EPA followed the NAS recommendations on human intrusion. We did this by including a scenario for inadvertent human intrusion that is

analyzed using similar methods as the undisturbed case (i.e., without intrusion). We

were prescriptive in specifying the intrusion event in order to make implementation

a more reasonable process for DOE and NRC.

Regulatory Time Frame

We proposed that DOE meet numerical standards for 10,000 years after repository closure. The 10,000-year limitation was set to reduce speculation about the application of a regulation beyond 10,000 years and to be consistent with previous regulation of the WIPP geologic repository. In its report, NAS recommended that the

period of compliance should extend to a time when the potential peak risks may

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occur (this could be several tens of thousands years for Yucca Mountain). NAS determined that there is likely little difference between its recommendation and EPA’s

proposed standard because although EPA’s standard applies for only 10,000 years,

EPA also proposed to require DOE to consider the performance of the disposal system at the time of peak dose, whenever that occurs, as part of the environmental

review process.

GROUND WATER PROTECTION

The NAS report concluded that an individual protection standard is sufficient for

the protection of public health from radiation releases from the Yucca Mountain repository. The NAS did, however, state that, under the Energy Policy Act, EPA has

the authority to set a separate ground water standard as a matter of policy. EPA

has proposed the ground water standard as an implementation of policy which we

plan to articulate more clearly in the final rule.

Ground Water Protection

Ground water is one of our Nation’s most precious resources; more than 50 percent of the U.S. population draws on ground water for its potable water supply. If

radionuclides migrate into this valuable resource, there are multiple routes of exposure. In addition to serving as a source of drinking water, ground water may be

used for irrigation, stock watering, food preparation, showering, and various industrial processes. Ground water contamination is also of concern to us because of potential adverse impacts upon ecosystems, particularly sensitive or endangered ecosystems. For these reasons, we believe it is a resource that needs special protection.

Therefore, we proposed a level of protection of ground water at Yucca Mountain at

the same level as the maximum contaminant levels (MCLs) for radionuclides that

we established previously under the authority of the Safe Drinking Water Act

(SDWA).

As you know, EPA has a long-standing policy of emphasizing the protection of

ground water resources in other contexts from all sources of pollution. We developed

a formal Agency strategy in 1990. Key elements of our ground water protection and

cleanup strategy in other contexts are the overall goals of preventing adverse effects

on human health and the environment and protecting the environmental integrity

of the Nation’s ground water resources. Ground water should be protected to ensure

that the Nation’s currently used and reasonably expected drinking water supplies

do not present adverse health risks and are preserved to present and future generations. It should also be protected to ensure that ground water does not interfere

with the attainment of surface-water-quality standards that are necessary to protect

the integrity of associated ecosystems.

The pollution prevention approach to protecting ground water resources avoids requiring present or future communities to implement expensive cleanup or treatment

procedures. This approach also protects individual ground water users. Moreover,

absent the protections in our proposed rule, EPA believes the ground water in

aquifers around the repository itself could be subject to expensive cleanup by future

generations if releases from the repository contaminate the surrounding ground waters at levels that exceed the drinking water standards. A guiding philosophy in radioactive waste management, as well as waste disposal in general, has been to avoid

polluting resources that reasonably could be used in the future rather than imposing

cleanup burden on future generations.

Virtually every state has taken steps toward comprehensive ground water protection. Forty-nine states have developed programs to protect current ground water

sources of drinking water through the Wellhead Protection Program. Forty-one

states have numeric or narrative ground water standards to protect their ground

water supplies. As EPA has said in testimony to this Subcommittee before, the people of Nevada should not be exposed to higher risks than the people in any other

state in the U.S. EPA believes that ground water in a region growing as rapidly

as the Las Vegas metropolitan area should be protected from pollution ‘‘up front,’’

rather than becoming polluted, and then forcing the residents to bear the cost of

the environmental cleanup afterwards.

An important question that has been raised by some commenters is the need for

the separate ground water protection standard, in addition to the all pathways individual protection standard. Our proposed rule contains two standards for disposal

of spent fuel and high-level radioactive waste in the Yucca Mountain repository: a

15 millirem all-pathways individual protection standard, and a 4 millirem ground

water protection standard. It is critical to understand the relationship between

these two separate, but complementary, standards. We proposed an all-pathways individual protection standard and a separate ground water protection standard because it was our view that it was appropriate to do so in order to comply with our

40

statutory mandate to promulgate ‘‘public health and safety standards for protection

of the public from releases from radioactive materials stored or disposed of’’ in the

Yucca Mountain repository [§ 801(a)(1) of the Energy Policy Act].

The 15 millirem standard is an all-pathways standard that directly protects individuals who may receive exposure (through any pathway) from radionuclides released from the repository. The 15 millirem all pathways standard is the same

standard that we included previously in our generic standards for geologic repositories (40 CFR Part 191). Should any pathways including a ground water pathway

prove to be significant, the all-pathways standard serves to limit radiation exposures to affected individuals. However, should the ground water pathway be the

most significant source of exposure, then an all pathways standard would allow

groundwater concentrations that exceed 4 millirem/year.

The 4 millirem standard is the MCL, promulgated pursuant to the Safe Drinking

Water Act, and is used to define the allowable level in drinking water. If ground

water that is or could be used for drinking water, among other uses, is a significant

pathway, present and future users of the ground water resource would be protected

at the level of the current drinking water standard by a ground water standard. By

extension, a ground water standard would provide this protection (albeit indirectly)

to the individuals who now live, or who may live in the future, in the vicinity of

Yucca Mountain. In its report on the technical bases for Yucca Mountain standards,

NAS identified ground water as the pathway likely to lead to the greatest exposure

of the public and the environment to releases from the Yucca Mountain repository.

With respect to radioactive waste disposal, we believe the fundamental principle

of inter-generational equity is important. We should not knowingly impose burdens

on future generations that we ourselves are not willing to assume. Disposal technologies and regulatory requirements are developed with the aim of preventing pollution from disposal operations, rather than assuming that cleanup in the future is

an unavoidable cost of disposal operations today. Designing a disposal system, and

imposing performance requirements that avoid polluting resources that reasonably

could be used in the future, therefore is a more appropriate choice than imposing

cleanup burdens on future generations. The approach to ground water protection in

our proposed regulation is consistent with our overall approach to ground water protection: it limits the contamination of current and potential sources of drinking

water in the vicinity of Yucca Mountain.

In designing our proposed ground water protection standard, EPA offered as much

flexibility as possible, while still ensuring adequate environmental protection. For

example, to facilitate implementation of the standard, we proposed the concept of

a ‘‘representative volume’’ of ground water in which DOE and NRC would project

the concentration of radionuclides released from Yucca Mountain for comparison

against the MCLs. In addition, we proposed the concept of a ‘‘point of compliance’’

whereby EPA would establish the area where the concentration of radionuclides

would be measured. Our proposed standards offered several options and explained

the rationale for each in detail.

Our proposed standard requires that DOE provide a reasonable expectation that,

for 10,000 years of undisturbed performance after disposal, releases of radionuclides

from the disposal system will not cause the level of radioactivity from combined beta

and photon emitting radionuclides in the representative volume at the point of compliance to exceed 4 millirem per year to the whole body or to any organ. Put simply,

under our proposal, DOE must provide a reasonable expectation that the Yucca

Mountain disposal system will meet the same levels as the current MCLs for radionuclides under the Safe Drinking Water Act (42 U.S.C. §§ 300f to 300j-26). We frequently require compliance with the MCLs in our regulations.

When we developed the current MCLs in 1975, we based them on the best scientific knowledge regarding the relationship between radiation exposure and risk

that existed at that time. In the near future, we intend to update the existing MCLs

based on a number of factors, including the current understanding of the risk of developing a fatal cancer from exposure to radiation; pertinent risk management factors (such as information about treatment technologies and analytical methods); and

applicable statutory requirements. Particularly relevant statutory requirements, in

this context, are the requirements (1) that MCLs be set as close as feasible to the

Maximum Contaminant Level Goal (MCLG) [42 U.S.C. § 300g-1(b)(4)(B)] and (2)

that revised drinking water regulations provide for equivalent or greater human

health protection than the regulations they replace [42 U.S.C. § 300g-1(b)(9)].

Our preliminary analysis of the current MCLs, which are being revised under a

separate Agency rulemaking, indicates that, when updated for the latest scientific

understanding, the radionuclide concentrations to meet the current MCLs mostly

fall within the Agency’s range of acceptable risks of 10¥4 to 10¥6. This means that

there will be no more than one in 10,000 to one in 1,000,000 chance of excess cancer

41

deaths. This is not unique to Yucca Mountain, as it is the risk range that has governed the Nation’s drinking water regulations for the last 25 years. Based on the

statutory requirements and the factors identified above, we proposed allowable concentrations for the radionuclides of concern at Yucca Mountain at levels that are

comparable to current standards.

EFFECTS OF OUR RULE ON THE REPOSITORY’S COSTS AND DOE’S SCHEDULE

An EPA draft study (which will be available when the final rule is issued) indicates that EPA’s proposed standards will not have a significant impact on the cost

of the repository. We support DOE’s efforts to design the repository in such a way

as to prevent or to the extent possible limit any releases from the repository in order

to avoid passing on the costs of clean up to future generations. We understand that

DOE still has to undergo the NRC licensing process; however, to date, DOE’s ongoing studies show compliance with the proposed ground water standard, although

EPA is still considering options and alternatives for the final rule.

As our economic impact analysis for our final standards will illustrate, DOE’s

costs for the facility are driven by many external influences, including EPA’s proposed standards, the recommendations of the Nuclear Waste Technical Review

Board and the rigorous NRC licensing process, all striving to enhance repository

safety. A primary concern relates to minimizing the technical uncertainties of modeling and enhancing repository performance through certain engineered enhancements to the repository design (e.g., an improved canister, drip shields).

CONCLUSION

Thank you again for inviting me to testify before the Subcommittee today. I would

be happy to answer any questions that you may have.

Mr. BARTON. Thank you, Mr. Page.

We now would like to hear from Dr. Crowley. Your statement is

in the record in its entirety and you are recognized for 7 minutes.

STATEMENT OF KEVIN D. CROWLEY

Mr. CROWLEY. Thank you very much, Mr. Chairman. Thanks for

the invitation to testify.

For the record, my name is Kevin Crowley. I am the director of

the National Research Council’s Board on Radioactive Waste Management.

BRWM was established by the National Academy of Sciences in

1958 to provide scientific and technical advice to the Federal Government on the safe and responsible management of radioactive

waste. The BRWM recognizes the importance of the Yucca Mountain radiation protection standards and has been interacting in a

cooperative spirit with EPA and the other Federal agencies at this

table to help ensure that these standards are based on sound

science.

As Mr. Page mentioned in his statement, the Energy Policy Act

of 1992 directed the EPA administrator to obtain advice from the

NAS on the technical basis for Yucca Mountain standards. The

NAS’s advice to EPA was provided in the 1995 National Research

Council report entitled ‘‘Technical Basis for Yucca Mountain Standards.’’ That is this report which I will refer to as the TYMS report

in the remainder of my testimony.

After EPA issued its draft standards in August 1999, the BRWM

wrote another report to the EPA administrator that compared

those standards with the recommendations in the TYMS report.

The purpose of the comparison was to determine whether EPA followed the recommendations in the TYMS report and if not to suggest how EPA could modify its draft standards to make them consistent.

42

The 1999 BRWM report concluded that EPA’s draft standards

were consistent with the TYMS report in several important respects, and I have reviewed those in my full written testimony. The

BRWM also identified several points of disagreement, and I would

like to focus the remainder of my oral testimony on those three

points.

The first significant point of disagreement concerns the form of

the standard. EPA proposes a standard that is based on the dose

that an individual may receive from repository releases. The TYMS

report specifically recommended against basing the standard on

dose, but instead recommended the establishment of what it calls

a risk-based standard. A risk-based standard, a standard that is

based on the likelihood of a health effect; in this case, the likelihood of contracting a fatal cancer from radiation releases from the

repository.

The TYMS report noted that the question, what is an acceptable

risk, is a societal judgment to be established through the rulemaking process. Once a risk level is established, then a dose value

can be derived using existing scientific knowledge.

The adoption of a risk-based standard as recommended by the

TYMS report would have several benefits, and I would like to list

those. First, there would be clear traceability between the numerical value of that standard and the public policy decision on what

is an acceptable risk.

Second, the standard would be more readily understood by nonexperts, which could help promote more meaningful public input to

rulemaking and greater public confidence in the final standards

and recommendations for Yucca Mountain.

Third, this approach would promote consistency between the

Yucca Mountain standards and regulation for other hazards such

as toxic chemicals. And fourth, a risk-based standard would not

have to be revised by subsequent rulemaking as advances in scientific knowledge improve our understanding of radiation effects on

human health.

The second point of disagreement concerns EPA’s inclusion of a

groundwater standard in addition to an all-pathway standard. The

all-pathway standard, of course, also applies to groundwater. The

TYMS report recognized that groundwater is likely to be the primary source of individual exposure to any radioactive materials

that escape from Yucca Mountain. And the report found that an

adequate set-all-pathways standard could protect both individuals

living near the repository and populations distant from the repository, including those populations that would use the groundwater.

Therefore, the report did not recommend a separate groundwater

standard. The 1999 BRWM report concluded that the imposition of

a separate groundwater standard may greatly complicate the licensing process for Yucca Mountain and have a negative impact on

the protection of the public. I have provided more extensive comments on this in my written testimony. I hope we have a chance

during the Q and A session to talk about the groundwater standard

in a little more detail.

The third and last point of disagreement concerns the time period over which the standard should be applied. The main concern

identified in the BRWM report is an EPA requirement that reposiVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00046 Fmt 6633 Sfmt 6602 E:\HEARINGS\65916 pfrm08 PsN: 65916
43

tory performance be examined beyond 10,000 years to see if dramatic changes could be anticipated.

EPA provides no guidance as to what qualifies as a ‘‘dramatic

change,’’ nor does it state the purpose of this examination. The

BRWM report notes that this aspect of the standard will provide

no real benefit to protection of the public.

Yucca Mountain repository must isolate waste from the environment for many millennia. It is essential that the standard for this

repository be scientifically sound. The overall conclusion of the

1999 BRWM report is that the current EPA draft standards fall

short of this goal in some important respects. The BRWM hopes

that EPA will accept the suggestions it has made for improvements

in the proposed standards. That concludes my oral remarks. Again,

thank you very much for the opportunity to testify.

[The prepared statement of Kevin D. Crowley follows:]

PREPARED STATEMENT OF KEVIN D. CROWLEY, DIRECTOR, BOARD ON RADIOACTIVE

WASTE MANAGEMENT, NATIONAL RESEARCH COUNCIL

Chairman Barton and subcommittee members, thank you for the opportunity to

appear before the Energy and Power Subcommittee to testify on the Environmental

Protection Agency’s (EPA’s) draft radiation protection standards for Yucca Mountain. I am the director of the National Research Council’s Board on Radioactive

Waste Management (BRWM), which was established by the National Academy of

Sciences (NAS) in 1958 to provide scientific and technical advice to the federal government on the safe and responsible management of radioactive waste. My testimony to the subcommittee today will focus on recent reports from the BRWM and

committees under its oversight that bear directly on the question of radiation protection standards for Yucca Mountain. In particular, I will discuss the findings and

recommendations from two reports: Technical Bases for Yucca Mountain Standards,

also known as the ‘‘TYMS report,’’ which was published in 1995, and a 1999 BRWM

report entitled Comments on Proposed Radiation Protection Standards for Yucca

Mountain, Nevada by the Board on Radioactive Waste Management.

As you know Mr. Chairman, the Energy Policy Act of 1992 directed EPA to promulgate radiation protection standards specifically for a potential repository at

Yucca Mountain, Nevada. The Act directed the EPA Administrator to obtain advice

from the NAS on the technical bases for radiation protection standards, and the Act

further mandated that EPA base its standards on the NAS recommendations.

To respond to this request, the National Research Council, the operating arm of

the NAS and National Academy of Engineering, appointed a BRWM committee in

early 1993 to provide advice to EPA on the standards. The committee held a series

of information-gathering and deliberation meetings (many in Nevada) over a period

of about two years and issued its recommendations in the 1995 TYMS report.

In developing its recommendations, the TYMS committee was very careful to distinguish between scientific and policy judgments. The committee recognized that

some elements of the standards could be addressed using scientific data and understanding, whereas other elements required societal value judgements. For example,

the committee recognized that there is no basis in science for establishing acceptable

radiation exposure limits but, rather, ‘‘acceptability’’ was a societal value judgement

that was best established through the rulemaking process. Similarly, the TYMS

committee noted that the time period of applicability of the standards has both scientific and policy aspects.

EPA published its draft radiation protection standards in the Federal Register (64

FR 46976-47016) on August 27, 1999. The BRWM, acting under its own initiative

and with approval of the National Research Council’s governing board, decided to

issue a report that compared the draft EPA standards with the recommendations

in the TYMS report. The purpose of this comparison was to determine whether EPA

followed the recommendations laid out in the TYMS report and, if not, to suggest

how EPA could modify its draft standards to make them consistent. The BRWM’s

report was submitted to the public docket during the comment period for EPA’s

draft standards. This report reflected the consensus of the BRWM and was approved

for release by the National Research Council after being subjected to the Research

Council’s review process.

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The BRWM found that EPA’s draft standards were consistent with the 1995

TYMS report in several important aspects, the most significant of which are the following:

• Who is Protected. The TYMS report recommended that the radiation protection

standard be applied to representative individuals who have the highest risk

from radiation releases from the repository. EPA proposed a standard to protect

individuals living near the repository—using a reasonably maximally exposed

individual (RMEI)—that is broadly consistent with the TYMS report’s recommendation.

• Level of Protection. The TYMS report concluded that the numerical value for

the radiation protection standard was a policy decision to be established

through the rulemaking process. EPA has used rulemaking to establish an ‘‘allpathways’’ standard. This standard sets an upper limit on the exposure the

RMEI can receive from radiation releases through all potential release pathways, including groundwater and the atmosphere. The numerical value of this

standard proposed by EPA falls within the range of values suggested in the

TYMS report.

• Human Intrusion. EPA follows the TYMS report’s recommendations that the

standards should require active and passive institutional controls to prevent

human intrusion into the repository in the near term; that the standard should

be based on explicitly defined assumptions about how human intrusion could

occur in the long term; and that the standard should set limits on radiation exposure to individuals as a result of a human intrusion that are no more stringent than the all-pathways standard.

• Exposure Scenarios. The TYMS report concluded that there is no scientific

basis for predicting future scenarios by which humans could be exposed to radiation from a Yucca Mountain repository. Therefore, the report recommended

that such scenarios be established through the rulemaking process. EPA has

used rulemaking to define exposure scenarios based on the state of society,

human biology, and knowledge that exists at the time of submission of the license application for the repository.

There are also several elements of EPA’s proposed standards that are inconsistent

with the recommendations in the TYMS report. My testimony will focus on the

three most important elements:

• risk- versus dose-based standards;

• the inclusion of a separate groundwater standard; and

• the time period over which the standard should be applied.

Risk- Versus Dose-Based Standards

EPA proposes a standard that is based on the dose an individual may receive as

a result of radioactive releases from the repository. The TYMS report specifically

recommended against basing the standard on dose. Instead, the report recommended that the standard be based on the risk to individuals of an adverse

health effect from radiation releases, and the report further recommended that rulemaking be used to establish an acceptable risk level.

The TYMS committee recommended a risk-based standard for several reasons.

First, the committee recognized that a risk-based standard is more understandable

to the public than a dose-based standard and its use would therefore promote more

meaningful public involvement in what truly is a public-policy decision. A risk-based

standard can be expressed as a simple probability of developing a fatal cancer—for

example, a standard that has a numerical annual risk value of 10¥4 would mean

that an individual living near the repository could have no greater than a 1 in

10,000 chance per year of developing a fatal cancer from radiation releases from the

repository. A dose-based standard, in contrast, provides no indication of hazard levels and is understandable only by experts. The proposed EPA all-pathways dose

standard of 15 millirems per year, for example, provides no indication of the number

of fatal cancers that could be expected in a given year from repository releases.

Second, a risk-based standard for Yucca Mountain can be compared directly to

other risk-based standards, such as EPA’s standards for toxic chemicals, because

they use common units of measurement. Also, the magnitude of the risk value corresponds directly to the level of hazard. For example, a 10¥5 (1 chance in 100,000)

risk standard for Yucca Mountain would provide the same level of public protection

as a 10¥5 risk standard for regulating a particular toxic material, assuming of

course that both standards were based on the same health effect such as fatal cancers. EPA currently regulates hazardous chemicals on the basis of risk, so the adoption of a risk-based radiation protection standard for Yucca Mountain would promote uniformity across EPA’s family of regulations.

45

Third, a risk-based standard would not have to be revised by subsequent rulemaking as advances in scientific knowledge improve our understanding of radiation

effects on human health. There have been significant improvements in our understanding of radiation effects on human health over the past few decades, and dosebased standards have had to be adjusted as our knowledge has improved. There is

reason to believe that these improvements will continue and that adjustments to

dose-based standards will be necessary in the future. For a risk-based standard, the

level of acceptable risk would be established during initial rulemaking. This level

would not have to be changed if new science indicated a change in the relationship

between dose and health effects.

EPA’s use of a dose-based standard not only makes it difficult for the public to

provide meaningful input to the rulemaking process, but it may also lower public

confidence in the output from that process. Take, for example, the disagreement between the EPA and U.S. Nuclear Regulatory Commission (USNRC) over radiological

criteria for unrestricted use of nuclear sites. The EPA standard (based on 40 CFR

Part 191) is 15 millirems per year, whereas the USNRC regulation (10 CFR

20.1402) is 25 millirems per year with ALARA (as low as reasonably achievable).

Both agencies claim that their release limits are protective of public health. What

is the public to think when the two federal agencies charged with protecting public

health cannot agree on what the protective limits should be? The reason the EPA’s

and USNRC’s limits are different is that each agency has a different starting point

for establishing the exposure limit values, and neither agency uses risk to establish

such limits.

EPA points out in the preamble to its draft standards that it was directed by the

Energy Policy Act to develop a ‘‘dose-based standard.’’ The TYMS report’s recommendation that the form of the individual-protection standard be based on risk

does not preclude EPA from expressing the numeric value of the standard in units

of risk and in derivative units of dose, so long as the risk value is clearly understood

as the underlying basis for the proposed dose standard. In its 1999 report, the

BRWM noted that such an approach ‘‘would achieve the aims of the TYMS report’s

recommendations and it would allow EPA to meet its Congressional mandate.’’

To summarize, the use of a risk-based standard in the Yucca Mountain rule would

have several benefits:

• there would be clear traceability between the numerical value of the standard and

the public policy decision on what is an acceptable risk; • the standard would be more readily understood by nonexperts, which could help

promote more meaningful public input to rulemaking and greater public confidence in the resulting regulations; • this approach would facilitate uniformity of the standard with regulations for

other hazards such as toxic chemicals; and • if a risk-based approach were implemented for all elements of the Yucca Mountain standard, it would eliminate the current problem with the groundwater element of the standard, which I will discuss next.

The 1999 BRWM report noted that a risk-based standard would be more difficult

to implement than a dose-based standard, and that EPA might find it far more difficult to ask the public about acceptable risk levels than to follow established precedents. Nevertheless, a risk-based standard was recommended both in the TYMS report and the 1999 BRWM report because it requires public involvement in what is

fundamentally a public-policy decision.

Inclusion of a Separate Groundwater Standard

EPA has included a standard for the protection of groundwater in its proposed

rule in addition to the all-pathways standard described previously. The proposed

groundwater standard appears to be designed to protect both individuals living near

the repository and the general public living at some distance from the repository.

The groundwater standard is a holdover from EPA’s 1985 disposal regulations (40

CFR Part 191) and is taken directly from the EPA’s safe drinking water regulations

(40 CFR Part 141).

In incorporating the groundwater standard into the Yucca Mountain standards,

EPA has made several modifications from the safe drinking water regulations. First,

the groundwater standard in EPA’s safe drinking water regulations applies to public

water systems. For the Yucca Mountain standards, EPA proposes to apply the

groundwater standard to a groundwater aquifer some 2,000 feet below the Earth’s

surface at the Yucca Mountain site and at some as-yet undetermined distance from

the repository boundary—the point of compliance for alternatives being proposed by

EPA range from 5 to 30 kilometers (3 to 19 miles) from the repository boundary.

The Yucca Mountain standard also applies to a volume of groundwater in the aquifer rather than to water delivered by a public water system—EPA has proposed a

46

value of 1,285 acre-feet (about 420 million gallons) but has also asked for comments

on values that range from 10 to 4,000 acre feet (3 million to 1.3 billion gallons). The

numerical value of the standard itself is based on 40-year-old dosimetry and does

not conform with current international standards, and it represents a different level

of risk than the all-pathways standard of 15 millirems per year.

The TYMS committee recognized that groundwater is likely to be the primary

source of individual exposure to radioactive materials that escape from Yucca Mountain, and that committee found that the all-pathways standard would protect both

local and distant populations. Therefore, the TYMS committee did not recommend

a separate groundwater standard. The 1999 BRWM report concluded that the imposition of a separate groundwater standard ‘‘may greatly complicate the licensing

process [for Yucca Mountain] and have but a negligible impact on protection of the

public.’’

The 1999 BRWM report concluded that there was no basis in science for establishing a separate groundwater standard and recommended that EPA either ‘‘make

more cogent scientific arguments to justify the need for this standard,’’ or if it wishes to establish a separate standard as a matter of policy, that it ‘‘explicitly state

the policy decisions embedded in the proposed standard and ask the public to comment on those decisions.’’ The 1999 BRWM report did not suggest what scientific

arguments EPA could use to justify a separate groundwater standard, but I would

like to close this part of my testimony by suggesting one possible approach for resolving the BRWM’s objections.

I believe that EPA could justify a separate groundwater standard by adopting the

risk-based approach recommended in the TYMS report. If EPA based its Yucca

Mountain standards on a SINGLE VALUE OF ACCEPTABLE RISK, it could express that risk in terms of two elements, one for radiation exposures through the

groundwater pathway (a groundwater standard) and one for exposures through all

pathways (an all-pathways standard). These two elements would be scientifically

consistent so long as they are based on a single value of acceptable risk. To implement this approach, EPA would have to modify the dose values for the all-pathways

and groundwater elements that currently exist in its proposed rule so that they represent the same value of acceptable risk.

Time Period Over Which the Standard Should be Applied

EPA proposes that the radiation protection standards at Yucca Mountain be applied over a time period of 10,000 years. The TYMS report concluded that (1) an

arbitrary time limit such as 10,000 years has no scientific basis, and (2) peak risks

from radiation releases from the repository are likely to occur beyond 10,000 years.

The report recommended compliance be assessed for the site’s period of geologic stability and noted that a technical assessment of the site should be feasible for on the

order of one million years. After the TYMS report was published, EPA asked for

public comment on the timescale issue, and the majority of those commenting stated

that compliance should be assessed at the time of peak risk.

EPA has nevertheless retained its earlier recommendation for quantitative compliance assessment only up to 10,000 years and has given a series of policy and

technical arguments for this choice. The TYMS report excluded policy considerations

from its deliberations on this issue, but concluded, as noted previously, that ‘‘there

is no scientific basis for limiting the time period to... 10,000 years. Clearly, the

10,000-year limit is strictly a policy choice and should be acknowledged as such’’ by

EPA. As the proposed standards currently read, the policy origin of the limit is not

evident.

Though compliance is assessed for a period of 10,000 years, EPA requires that the

repository performance be examined past this point ‘‘to see if dramatic

changes... could be anticipated’’ (64 FR, p. 46993). Here EPA provides no guidance

as to what qualifies as a dramatic change or as to the purpose of the examination.

The BRWM believes that this aspect of the standard will provide ‘‘no real benefits

to protection of the public.’’ The BRWM noted that EPA ‘‘may wish to be more specific in providing guidance on how the analyses beyond 10,000 years could be used

in determining compliance’’ or explicitly pass this task to the USNRC.

In conclusion Mr. Chairman, a Yucca Mountain repository must isolate waste

from the environment for many millennia. It is essential that the standard for this

repository reflect the best thinking that science has to offer. The overall conclusion

of the 1999 BRWM report is that the current EPA draft standards fall short of this

goal in some important respects. The BRWM hopes that EPA will accept the suggestions it has made for improvements in the proposed standards.

This concludes my testimony to the committee. I would be happy to clarify my

comments or answer committee members’ questions. Again, thank you for the opportunity to testify.

47

Mr. BARTON. Thank you. Let’s do 7-minute question rounds, but

we will have numerous rounds. The Chair will recognize himself

first.

First, let me say that we cannot have a democracy if we do not

have debate. So it is good to have this panel here. But I want the

record to show, because of what our two Nevadans said, this is not

a hearing that is about politics. There is not one member on this

dais right now that is going to get any political plus of sitting

through 3 hours of technical details about what the radiation

standard or the groundwater standard at Yucca Mountain ought to

be. The members that will get political support and send out press

releases have already been here—the two Nevadans. And they will

send out press releases saying they stood up to the Congress and

they spoke in no uncertain terms about how it shouldn’t be Yucca

Mountain, and that is how should be.

But none of us are going to send out press releases about how

we sat through 3 hours of some of the most boring information you

are ever going to have to listen to because we want what is good

public policy, and that is why we are here. That is why this subcommittee is here is because this is an issue that is very important.

If you assume that each Member of Congress represents about half

a million people you have members that represent 3 million people,

or 3 percent of the American population sitting at this hearing.

And we are all in this together.

As Congresswoman Berkley said, we are for America, and I happen to think that the United States of America should have a comprehensive nuclear policy that includes a repository, or a depository, where the high level nuclear waste can be safely stored. Now,

we are not technical experts; you folks are. So we have got to ask

you some questions, and we have got to have this debate. After 18

years, I was a White House Fellow in the Department of Energy

in 1981 and 1982, and participated in policy debates at a minor

level about what has come to be known the Nuclear Waste Policy

Act of 1982. Eighteen years later I am the subcommittee chairman

and we are basically having the same debate, although at, admittedly, a higher technical level. So I just want to get that on the

record before we get into the questions.

Now, Mr. Page, you represent the Environmental Protection

Agency. Are you the decisionmaker on this separate groundwater

standard that is currently pending?

Mr. PAGE. No, sir, I am the office director of the Office of Radiation Indoor Air. Carol Browner, my boss, will be taking the recommendation forward to the administration, and that is where that

will get resolved.

Mr. BARTON. Who made the decision within the EPA to go to a

separate groundwater standard?

Mr. PAGE. That decision was across EPA looking at what we do

in the rest of our environmental programs. And it is consistent

with that.

Mr. BARTON. Did you have any influence in that decision? My

question is, are you a decisionmaker or are you a message-giver?

Mr. PAGE. I participate in the meetings where the decisions are

made.

48

Mr. BARTON. So you are at least high enough in the EPA that

you have some influence in the decisions?

Mr. PAGE. Yes, sir. Yes, sir.

Mr. BARTON. That is good. That is not bad.

Now, does EPA have a problem with the concept of an all-pathways standard?

Mr. PAGE. No, sir, we recommend an all-pathways standard.

Mr. BARTON. I know there is a disagreement about the level of

all-pathways standard. I think the Nuclear Regulatory Commission

recommended 25 millirems and the EPA all-pathways is 15; is that

correct?

Mr. PAGE. That is correct. And I would also note that the National Academy of Sciences recommended their range, which is consistent with ours, with EPA’s.

Mr. BARTON. So we could have a real good debate between 15

and 25, in the spirit of the congressional give-and-take, we would

agree on 20. But that is a different debate. But there appears to

be, in the academic community, in the technical community, not too

much support for the EPA position that there should be a separate

groundwater standard. And if you look in the law, there is no requirement for that. It appears that it is an EPA policy decision

that, in addition to protecting public health and safety, the Carol

Browner administration has decided to also protect resources. Am

I wrong in making that last assumption?

Mr. PAGE. The protection of groundwater policy is the policy of

this administration as it was previous administrations. Yes, sir.

Mr. BARTON. But it is not a Federal law? You have got to protect

public health. You do not have to necessarily protect resources?

Mr. PAGE. Correct.

Mr. BARTON. But you have decided that it is in the public good

to protect resources, and that is a good public policy.

Mr. PAGE. Especially as these resources are being used as

sources of drinking water, which these are.

Mr. BARTON. Under the Safe Drinking Water Act, la-dee-da-deeda, which I think is in the 1970’s, the groundwater standard has

been implemented, so that it is enforced and measured at the tap;

is that not correct? Whatever the standard is, you regulate it and

monitor it at the tap where the water comes out and people actually get ready to drink it.

Mr. PAGE. That is true for drinking water.

Mr. BARTON. Now, the standard that is pending, as I understand

it, you are setting this 4 millirem not at the tap but at the source;

is that not correct?

Mr. PAGE. That is correct.

Mr. BARTON. Okay. Now, is it not technically possible—let’s assume because it is a big assumption that we agree that there ought

to be a 4 millirem standard for groundwater, wouldn’t it be just as

defensible to enforce it at the tap as opposed to at the source?

Mr. PAGE. We believe——

Mr. BARTON. I am not real interested in what you believe right

now. I am interested though in whether, if we agreed with the 4

millirem that we could enforce it, you know, where the people are

actually getting ready to drink it as opposed to wherever it might

emigrate from?

49

Mr. PAGE. Mr. Chairman, EPA and many, many states use the

4 millirem to protect future or current sources of drinking water.

It is true what you are saying that you can regulate that at the

tap. That is the bottom line, if you will. But prevention in this case

very often, especially in the case of Yucca Mountain, if you can develop designs that are reasonable and can prevent the initial pollution of the resource——

Mr. BARTON. But that is not a technical necessity nor is it a Federal law.

Mr. PAGE. That is a policy call, sir.

Mr. BARTON. That is an EPA policy call. Does anybody else in the

Clinton administration, other than EPA, support that policy call?

Does the Department of Energy? Does the Nuclear Regulatory

Commission? Does the Department of Agriculture? Does the Department of Defense? Do any of them support that EPA policy call?

Mr. PAGE. I guess I haven’t polled all of those agencies that you

named. I can tell you that many, many States who carry out——

Mr. BARTON. I did not ask you about the States, I asked you

about within the Clinton administration, because we have—I

shouldn’t admit this, but that was kind of a set-up question because we can put into the record that all of those agencies, I think

all of those agencies do not support that.

Mr. PAGE. I can tell you that, from the Department of Energy

and from the Nuclear Regulatory Commission and others who comment on the Yucca proposal, they expressed their concerns with

that policy. And that is what we have up ahead of us.

Mr. BARTON. I think they opposed it, other than expressed concerns with it, but that is, again, semantics. The Chair would recognize Mr. Boucher for 7 minutes.

Mr. BOUCHER. Thank you very much, Mr. Chairman. I want to

commend our witnesses this morning for informing us about these

technical and policy matters. I agree with the chairman that this

is where we earn our salary. There is not a lot of political benefit

in listening to this, but it is extraordinarily important information,

nonetheless.

In the rank of importance, I think the budget is fairly far up the

scale. Dr. Itkin, I would like to engage in a discussion with you

about that.

In 1982, in the Nuclear Waste Policy Act, we established the Nuclear Waste Fund. It is comprised of a fee of 1 mill per kilowatt,

which the utilities are required to pay into the fund. They pass

that charge along to their ratepayers. And in the years that this

fund has been in existence, that 1 mill per kilowatt has accumulated $10 billion in principal for the fund. That $10 billion in principal has accrued $4 billion in interest. So $14 billion in potentially

expendable funds have been made available through the Nuclear

Waste Policy Fund. But of that $14 billion, Congress has appropriated to the DOE only $5 billion for your various activities.

The balance of that fund remains subject to appropriations, and

in the current state of play under the current law, you would only

have access to the balance of it through the grace of the appropriation process in the Congress.

Now, if you look at that appropriations process, starting in 1996,

the administration’s requests have not been met by the congresVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00053 Fmt 6633 Sfmt 6602 E:\HEARINGS\65916 pfrm08 PsN: 65916
50

sional appropriations. In fact, in the year 1996, the administration’s request was $630 million. Congress provided exactly half of

that amount, $315 million. And in each succeeding year since 1996,

Congress has appropriated less than the administration has requested for your activities to prepare Yucca Mountain.

And it appears that the trend is continuing even today. We are

prepared to bring the energy and water appropriations bill to the

floor of the House next week, and that bill, once again, falls short

of the administration’s request.

I think Congress has a clear responsibility to meet our need to

keep this program on track, and I really question whether this appropriations history complies with that responsibility. I would welcome your comments concerning the general subject.

Let me just phrase a precise question to you. The Department of

Energy historically has made projections of the extent to which it

will be able to continue its work in a timely fashion, given the appropriations that you receive. And you make several assumptions

as you make projections of your ability to perform. One of those assumptions is that the continual trend of appropriations will be pursued, that it will continue and that you will get roughly the same

level of appropriations that you have.

The other assumption that you have made for purposes of the

projection is that the balance of the Nuclear Waste Fund will not

be made available to you. That legislation, such as H.R. 45, will not

be enacted into law, and that you would continue to have to get annual appropriations.

Now, given those assumption, and given the appropriations history that we have seen, and given the level of appropriations that

you might reasonably be able to expect for fiscal year 2001, at what

point in time would you anticipate that the Department of Energy

is going to fall behind its schedule for the activities that are necessary to finish the design and construction of Yucca Mountain, to

load Yucca Mountain, and then to engage in the sealing of the repository under the schedule that you currently have? At what point

in time do you think if these trends continue that you are going

to fall behind schedule?

Mr. ITKIN. Thank you very much, Congressman, I am very

pleased to address the subject. It is a very important one for our

agency, and you have correctly characterized the lack of funding to

the office in order to carry out its mission of characterizing the

Yucca Mountain site.

In the short term, we are somewhat gratified by at least the initial reaction of Congress toward our appropriation. I would like to

preface that by saying that before we went to the Congress, my office went to the department and to the administration asking for

a budget proposal that was 25 percent higher than what we had

gotten traditionally. Our current budget this year is $351 million.

We asked the administration for $437.5 million. We made our case

and the administration did, in fact, recommend to the Congress the

full $437.5 million.

What that level would do would be allow us to continue and to

finish the site suitability studies, the scientific work necessary for

a Presidential decision, and would allow us to catch up and to prevent any further delay in the next process if there is a positive recVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 E:\HEARINGS\65916 pfrm08 PsN: 65916
51

ommendation. And that is in the licensing stage. So in order to ensure that we do not fall behind further, we need the full $437.5

million.

The House Energy and Water Development Appropriations Subcommittee did give us a mark which is far higher than the House

has ever done before of $413 million. I think that they were under

a misimpression that at $413 million, it would fully fund our program. It will fully fund making a decision next July. In other

words, we will have the resources necessary to do the scientific

work to inform the Secretary, and if he so chooses, to inform the

President. And we think that is very, very important.

But it will not allow us to catch back up to the deferred work

that we have had to do because of these cuts with licensing application.

So if I have an opportunity to get on my soap box, I am asking

Congress for the full $437.5 million. And I am hoping that the

other body will, in fact, provide with us a higher appropriation and

hopefully get this thing resolved in conference.

Mr. BOUCHER. But you are concerned that if you do not get the

full appropriation, that fact will result in delay; is that correct?

Mr. ITKIN. Yes, if we get the $413 million, we will make our fiscal year 2001 milestone, but we will probably have to defer perhaps

some months, maybe a year, getting our license application submitted and approved. Which I think from many Members of Congress, it is not these interim points that are important, it is a desire by at least 2010 for us to accept the waste. And I am trying

to keep that schedule, and I will—if I get the 437.5, we will be able

to do the Presidential recommendation and also provide the necessary makeup work that is required so that we can get a license

application on time.

Mr. BOUCHER. Mr. Chairman, if you will indulge me just for one

additional question.

Mr. BARTON. Sure.

Mr. BOUCHER. My really deep concern is that as we approach the

time and perhaps the year 2003 when construction of the facility

is scheduled to begin, and your costs are going to escalate dramatically, that we are going to really find a crunch, and you are going

to have difficulty moving forward at that time, unless you get access to the full fund. Is that a realistic concern or are you less concerned for some reason?

Mr. ITKIN. Congressman, it is a real concern that we have to adjust the outyear funding. We are trying to moderate some of our

needs. I have taken the initiative of trying to develop a modular

procedure in the construction activities that would tend to smooth

out the cost so it wouldn’t be such a burden or spike in certain

years. But even doing that, we will need to work together, the administration and the Congress, to come out with a new funding

mechanism to deal with this problem, because we will probably

need, at the minimum, two to three times our current funding levels.

And having said that, it becomes—you mentioned about having

full access to the fund. You know as well as I, there is approximately $10 billion, $9-, $10 billion sitting there, and that it is being

52

used both by the Congress and the administration to take care of

other matters, to so-call balance the budget.

Mr. BARTON. I am sure you are aware that the House-passed bill

freed the waste depository fund. You are aware of that?

Mr. ITKIN. I appreciate the House doing that. The law of the Congress requires both Chambers to act in unison. That did not occur.

I am a legislator, at least a State legislator for 26 years. I understand how the legislative process works.

But having said that, I want to work with you, the committee

and the subcommittee, and the Congress in general because we do

have to solve this problem.

Mr. BARTON. Next year, assuming that we are here and that you

are there, and we are doing this as an early hearing before we

move another waste depository bill, will the administration, if you

are still a part of it, put a proposal on the table that addresses the

issue that my good friend from Virginia has put on the table? In

other words, we never saw a Clinton administration proposal this

year that solves the funding problem. We got a lot of reports about

all the problems they saw with our way to solve it. But thankfully,

Mr. Dingell, Mr. Boucher and Mr. Hall worked with Mr. Bliley and

myself, and we went ahead and went to the Budget Committee and

the Appropriations Committee and the Speaker of the House, and

our bill solved that problem.

So can we expect to see reciprocal problem solution to this funding issue next year if you are still in charge?

Mr. ITKIN. Mr. Chairman, we are working on that problem. We

recognize for our own future well-being in carrying out our mission

as directed by the Congress, that we will have to resolve this. I

cannot speak for the next administration in terms of what they——

Mr. BARTON. I said if you are still where you are. I am not tying

your hands to the future administration. But my guess is that you

are going to be here next year, even if there is a change in political

calculus at the White House because it takes a while for those

transitions to occur.

Mr. ITKIN. Well, I will go on record saying it needs to be changed

and I want to be part of that solution.

Mr. BARTON. That is mighty big of you.

Mr. BOUCHER. Mr. Chairman, thank you for your indulgence and

I yield back.

Mr. BARTON. In order of appearance, we are going to go with Mr.

Shimkus unless there is another member that has a pending—Mr.

Shimkus for 7 minutes.

Mr. SHIMKUS. Thank you, Mr. Chairman. I am shocked that the

ranking member started at 1996, and I did not have any of the

numbers from 82 to 95 to be able to evaluate the budgetary aspects

of the whole program. But I would like to join my colleague on the

mandatory process of the appropriation bills. And if we can find a

way to rob Peter to pay Paul to make folks better served, understanding budgetary constraints, and look for waste fraud and abuse

in other areas of the Federal Government, then I would be happy

to join with him to address those issues.

First of all, I want to ask a question to all of you at table. Do

any of you have any black helicopters? Do you know in your agencies is there any black helicopters? No? Any of the roofs painted

53

blue, do you know, on any of the buildings? Because of the different

agencies involved, and there was a statement I think by Dr. Crowley that you are working in a cooperative spirit. Does that mean

that you are in collusion with each other to try to deceive the public and rain bad science and ill-gotten gains from those who are

participating, destroying the health and the welfare of the citizens

of this great country? No?

For the record, everybody is shaking their head ‘‘no’’ for all of

these questions. And for all of those conspiracy theorists out there,

I am glad to say that you are on record saying that there is no

great conspiracy to game the system for whatever organization—

nefarious organization that may be out there, and that you are all

working diligently trying to move public policy in a direction that

will, in the end, protect the safety, health and welfare of all the

citizens in this Nation.

Can I make that assumption to you all? Is that correct? And for

the record, everybody is shaking their head ‘‘yes,’’ and I appreciate

that.

That is kind of in response to my colleagues who made some implications based upon past practices and current practices that—

may be current practices. And I think that the fact that we have

in this debate and the fact that there is disagreement and that we

have outside people being brought in to review the technical aspects, is a good response to my colleagues who may not believe that

we are attempting to move public policy in a scientific manner, and

that is probably why it has taken us so long to get through this

process to begin with.

I have been told and I tried to confirm this during some of the

testimony, that if you work in the Library of Congress for a year

you are subject to 700 millirems in that year. If you work in this

building for a year, probably 300 millirems. Does—because of the

millirem standard the EPA is proposing for groundwater, wouldn’t

you think it would be in the EPA’s best interest to call for the immediate vacation of all the Federal buildings in Washington, Mr.

Page, based upon those standards?

Mr. PAGE. No, sir, I don’t think EPA would agree with that.

Mr. SHIMKUS. Maybe your building we might agree. No, I am just

joking. But the—I think that is really the debate, especially on this

issue of groundwater; and I don’t have all the terminologies correct,

but the other type of water evaluations and——

Mr. CROWLEY. All-pathway standards.

Mr. SHIMKUS. Obviously, that is an area of debate and a difference.

And, Dr. Crowley, can you talk to me about—and I think it was

the National Academy of Sciences that said the groundwater issue

raised by the EPA, there is no basis in science. Can you elaborate

on that?

Mr. CROWLEY. Thank you for asking that question. I can.

The issue of a groundwater standard, conceptually, it is really

very difficult to understand, even for experts. So I took the liberty

of scratching down some notes here so that I was very careful in

how I answered the question. What I am going to do is, I am going

to give you a short answer. Then I will give you a slightly longer

rationale for it.

54

The short answer, the reason that the groundwater standard is

not based in science is that if you adequately protect people with

an all-pathway standard you protect groundwater as a resource. In

other words, you do not need a separate groundwater standard. Let

me explain why that is true.

Firstly, you should understand that when the National Academy

undertook its work, the committee that was charged with that, the

TYMS Committee,was actually charged with asking—it was asked

to recommend standards to protect people, not groundwater. The

TYMS Committee concluded that an all-pathways standard would

protect people if it was set at an adequate level and that an additional groundwater standard was not needed. The committee reasoned if you protect the people with an all-pathway standard then

at each leg of the pathway, the groundwater leg of the all-pathway

standard, the atmospheric leg of the all-pathway standard would be

protective.

The phrase groundwater is a resource as EPA uses it in the

standard. I personally interpret that to mean groundwater for future human use. As a resource, we are going to use it either now

or in the future. EPA notes that future users include both individuals living close to and some distance from the repository who

might use groundwater from Yucca Mountain. In other words, the

EPA groundwater standard is also designed to protect people.

EPA has proposed, as you know, to establish two standards, the

all-pathways standard and a separate groundwater standard. The

important things about these standards is each is really based

upon a different level of risk. In other words, you are providing a

different level of protection to people who might be exposed to radiation from a particular pathway. This really has very important

implications because it means that for some radionucleides the

groundwater standard actually provides more protection to the

groundwater than an all-pathway standard provides to people. But

this is illogical because EPA states that it is protecting groundwater as a resource for use by people. So it really doesn’t make

sense to provide more protection for groundwater than the people

who consume that groundwater. The TYMS Committee concluded

that if you set an adequate all-pathway standard you have protected people.

Mr. BARTON. Would the gentleman yield? Is there any correlation

mathematically between the 15 millirem all-pathway standard that

EPA recommends and the 4 millirem groundwater standard? Is

there any way to compare the two standards or are they noncongruent?

Mr. CROWLEY. I will take a swing at that, and perhaps Mr. Page

could also take a swing at that.

The 15 millirem all-pathways standard and the 4 millirem

groundwater standard really have different pedigrees. They come

from different parts of EPA. The 15 millirem standard comes from

40 CFR 191. The 4 millirem groundwater standard comes from the

Safe Drinking Water Act. They are related in a very gross way but

not in a very exact way. If you look at the details of the groundwater standards, you find that the different radionucleides within

that standard provide different levels of protection.

55

Mr. BARTON. Mr. Page, you want to comment on that? I want to

yield back to Mr. Shimkus if he——

Mr. SHIMKUS. That is fine. I just don’t know if I had any idea

what he just said.

Mr. BARTON. That is why I am the chairman and you are not.

Mr. SHIMKUS. Thank you, Mr. Chairman. I am done, but I want

to ask just this one other question.

Mr. BURR. Mr. Page, then Mr. Paperiello wanted to say something.

Mr. SHIMKUS. That is fine. Mr. Page.

Mr. PAGE. Sure. The 15 millirems all pathways is designed—it

has a risk base to it. And what it is designed to do is land where

EPA typically carries out environmental regulations for hazardous

waste, drinking water the 10-4, 10-6 risk for cancer.

Mr. BARTON. And to convert, 10-4 is 1 in 10,000 and 10-6 is 1 in

a million.

Mr. PAGE. Yes, sir.

Mr. SHIMKUS. Thank you, Mr. Chairman.

Mr. PAGE. The 4 millirem as well, if you look at the MCLs and

look at what they were based on back in 1975 when they were developed, what you have there if you look at all the radionucleides,

all the radioactive materials that could be in the drinking water,

they also land in that range, in that risk range. Most of them do.

The 10-4, 10-6. So there is the correlation that I think that you were

asking.

Mr. SHIMKUS. We are going to let Dr. Paperiello answer, but I

want to follow up on one question. Four millirems at the source,

15 millirem at the faucet, is there any—is there—do we see an increase in radioactivity, an increase as the stuff gets into the

groundwater, the groundwater flows toward the faucet? Is there a

possibility of more millirems being glommed on as it goes downstream to make it obviously more powerful?

My position is, you would think there would be a higher standard

at the site because there is going to be some dissipation down the

stream. But, in this case, you have a higher standard at the source

and a weaker standard at the faucet. Is that—can I make that assumption?

Mr. PAGE. Let me respond to your question. I think you are raising a point that was raised a lot in the comments that we had on

our rule, and I think it is a good one.

First of all, the 4 millirem, again, at the risk of belaboring the

issue, the 4 millirem is the level of protection we offer all across

the United States around hazardous waste site facilities’ wellhead

protection, that we don’t want that amount of more than that

amount going into the resource.

Now, Congressman, you said, what about close to the site? How

about further away? It is possible that somebody can draw up because of how a plume has behaved in moving downgradient that it

is possible that you could have something show up that is higher

away from the site than it is close to the site. Normally, you would

expect it to dilute, et cetera, but these travel in plumes; and this

is part of the uncertainty that has to be taken into account.

The point that I would make is the—the important question I

think that you have to ask on the 4 millirem, is it prudent, you

56

know, by cost or feasibility to protect at that level? That has to be

judged by that standard. And is it worthwhile offering that amount

of prevention? Because as that plume moves down and hits the tap,

the people at the tap are going to have to pay for the cost. If that

hits there and it is over the 25 or the 15 issues, the people have

to pay the tap, have to pay the cost of the cleanup.

Mr. SHIMKUS. I know I am way over, but if Mr. Paperiello—and

I will——

Mr. BARTON. Mr. Paperiello answer. Then we are going to go to

the long-patient Mr. Burr.

Mr. Paperiello, if you want to answer the question for Mr.

Shimkus.

Mr. PAPERIELLO. Let me talk about the drinking water standard,

which, of course, the commission objects to. I want to make something clear. It is not a 4 millirem standard. The MCLs are based

on old science which is inconsistent with current science. In fact,

the current science which EPA has put into Federal Guidance 13,

the doses vary by a factor of almost a hundred. And, in fact, for

Yucca Mountain, the MCLs, not 4 millirem, is the standard, corresponds at the end of 10,000 years for the most mobile isotope to

a dose of two-tenths of a millirem per year.

Congressman you are correct. The average background to a citizen of the United States is about 300 millirems from natural background. It can vary a lot easily, a factor of 2. Our standard is 25.

If you use the models, the linear model of risk, it is in the right

risk range in the National Academy.

Mr. BARTON. Can I ask you, just—if the average around the

country is 300 millirems, do we know what the average is in the

Yucca Mountain area? Is it 300?

Mr. PAPERIELLO. Congressman, we do know that. I don’t know it

off the top of my head.

Mr. BARTON. Whatever it is—and we can get that for the

record—are these standards that we are debating today, are they

going to be in addition to the normal background naturally occurring radiation that the folks are exposed——

Mr. PAPERIELLO. They would be additional to the normal background.

Mr. BARTON. So is it technically possible—let’s—assuming that

the—if the national average is 300, it is possible that the Yucca

Mountain average is 200. So if you add 15 or 25 or 40 or whatever,

they are still going to be under the national average. It is also possible they could be over if it is in the background.

Mr. PAPERIELLO. Let me give you an example. I am going to be

in Denver next week. Denver is a mile above sea level. It is also

in the middle of the Rocky Mountains. That has been the typical

example in radiation protection, any field of a high natural background where the doses are approximately a hundred to 150

millirem higher than what I get living in the DC area.

Mr. BARTON. So that is 450.

Mr. PAPERIELLO. That is right. There is no empirical evidence

that that represents a risk to the citizens of Denver. I am just giving you a perspective. I know all the theory—I know theory. I know

how to derive the risk from radiation. It is my field. I am just giving you a fact that the—empirically you don’t see an effect.

57

Mr. BARTON. We would like to have for this subcommittee’s

record what the natural occurring background radiation is in Yucca

Mountain. I think that is—if we are going to get into this millirem

debate, that would be a good number to have.

Mr. PAPERIELLO. I will see what I can do, Congressman.

[The response had not been received at time of printing.]

Mr. BARTON. Continue on your answer to Mr. Shimkus. Are you

concluded with it?

Mr. PAPERIELLO. I just want to point out the fact that the

groundwater standards if it were 4 millirem would be one thing,

but it is not 4 millirem. It varies widely because of the old science

that was used. And, in fact, for Yucca Mountain it will translate

effectively into a two-tenths of a millirem standard.

Mr. BARTON. Mr. Burr.

Mr. BURR. I won’t even pretend that I understood everything

that you said, but I believe I heard you to say that there is currently new science available, but the EPA, to set the standard,

used old science because it made it work out in their behalf, is

that——

Mr. PAPERIELLO. For a variety of reasons, they have chosen to

stick with the old science.

Mr. BURR. Is that common in the scientific community when

there is new science available to revert to old science to come to

new conclusions?

Mr. PAPERIELLO. In the scientific community, no. However, when

you get into law and regulations, the time that it takes to change

can allow old science—laws and regulations based on old science to

remain in effect until somebody can affect a change.

Mr. BURR. Clearly, the EPA is concerned with law because Mr.

Page said in his opening statement—I didn’t catch the whole

phrase—that it was legally defensible. So, you know, I am sure

that there is some consideration that has already been put to that.

Let me move to Dr. Itkin real quick, because I am concerned and

inquisitive on the recompete decision. It is my understanding that

the policy says you can recompete or extend contracts, correct?

Mr. ITKIN. Yes. That is correct.

Mr. BURR. Tell me where TRW has openly underperformed in

their 10-year contract.

Mr. ITKIN. I am not going to suggest that TRW did underperform. There is Department policy, and also directives of the Congress and appropriations act, that we recompete these contracts

when those contracts expire. And TRW had a 10-year contract from

1991, and their contract will expire in February of 2001.

Mr. BURR. But the agency has the ability to extend that.

Mr. ITKIN. We could have extended it. We felt that there was no

good time to do this——

Mr. BURR. Was that the recommendation of you and your team,

that this contract be recompeted?

Mr. ITKIN. It was the recommendation of the Department to do

that.

Mr. BARTON. Would the gentleman yield on that point?

Mr. BURR. I would yield.

Mr. BARTON. You gave a very careful answer to that. Now, I am

told that it was the internal recommendation that it not be recomVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00061 Fmt 6633 Sfmt 6602 E:\HEARINGS\65916 pfrm08 PsN: 65916
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peted, that it actually be extended and that the Secretary of Energy overruled that, and it is the Secretary of Energy who made

the decision against the recommendation internally to recompete.

Have I been told correctly or have I been told incorrectly?

Mr. ITKIN. Let me say that there were differences of opinion

within the internals of the Department that the—the decision was

made by the Department, and I interpret that to mean the Secretary concurred in that decision.

Mr. BARTON. Was this decision made before you became—you obtained the position that you currently hold or——

Mr. ITKIN. No, this decision was made subsequent to my appointment.

Mr. BARTON. Subsequent.

Mr. ITKIN. Subsequent.

Mr. BARTON. That means after.

Mr. ITKIN. After.

Mr. BARTON. Let’s talk Texan here. Mr. Burr has raised this. You

know, sometimes we have to be a little pushy. And I am going to

be a little bit pushy. What was your recommendation to the Secretary on recompete or extend?

Mr. ITKIN. I was concerned about it, but I had mixed feelings as

to which way to go. Because, as a new person in this position, I

was concerned about what the effects might be to the operation of

the activity.

Mr. BARTON. You share the concerns that I expressed in my

opening statement.

Mr. ITKIN. Yes, but I have been now feeling—after managing the

program through the recompetition, as we go to recompetition, I

feel that my fears were not called for.

Mr. BARTON. Before the decision was made to recompete, did you

make a recommendation to the Secretary on recompete or extend?

Mr. ITKIN. There were discussions that——

Mr. BARTON. Did you make a recommendation, either verbally or

in writing?

Mr. ITKIN. I don’t remember personally making that recommendation to the Secretary, although there were concerns about

recompetition.

Mr. BARTON. So you made no recommendation.

Mr. ITKIN. We basically made the—entered into discussion as to

the pros and cons of such recompetition.

Mr. BARTON. You personally—the office that you represent made

no recommendation. The Secretary of Energy just had to take—call

these concerns, and then he made the decision. He got no recommendations, he got pros and cons, and then he made the decision. As opposed to you sending him a decision memo initially——

Mr. ITKIN. We did not send him anything in writing, as I recall,

in terms of a formal recommendation. There may have been some

internal discussions.

Mr. BARTON. Did anybody within the Department of Energy

make a written recommendation to the Secretary whether to recompete or renegotiate—or extend?

Mr. ITKIN. One moment.

Not to my knowledge. I am told—I checked with my deputy to

make sure that he was not—may have been knowledgeable. To the

59

best of our knowledge, there was no formal recommendation not to

recompete.

Mr. BARTON. So there were no recommendations yes or no. It was

simply a debate, pros and cons, and then the Secretary took that

debate and he made the decision.

Mr. ITKIN. There was a discussion about the concerns raised

about what recompetition might do. We also, on the same point

looked at when we would recompete, what the problems would be

in the future. And it was the Secretary’s feeling that the Department should observe the departmental policy and that the—and

also respond to congressional directives which have repeatedly been

placed in the appropriations documents about going ahead and recompeting.

Mr. BARTON. I guarantee you there is no congressional directive

to recompete this contract at this time.

Mr. ITKIN. I can’t say that.

Mr. BARTON. I can say that. There is no congressional directive

to recompete this particular contract.

Now, we have done everything we could to direct the Secretary

of Energy to recompete the Los Alamos contract with the University of California but not on this one. So when the Secretary is here

next week, if we have a chance—it is going to be a broader subject,

but I will ask him this question, too.

But from all of your hemming and hawing and dodging and

weaving and bobbing and everything, I still take it that you would

admit if we were under oath, which we are not, this is not the oversight subcommittee, that it was the Secretary’s decision to recompete this contract?

Mr. ITKIN. Let me say this, in our Department the Secretary is

responsible for the conduct of the operation. Any decision made by

the Department obviously is something made with his concurrence.

Mr. BARTON. Okay. Mr. Burr. We will give you quite a bit of

time, since I took about 6 minutes on that.

Mr. BURR. I thank the chairman. I probably am concerned more

at the conclusion of the answer then I was when I originally asked

it. Because I think what, in fact, you said to me, Dr. Itkin, if you

are accurate, is that—do you consider this a major contract?

Mr. ITKIN. Oh, yes, it is a major contract.

Mr. BURR. I consider it a major contract, too. What you have told

me is that the Secretary didn’t ask line management for recommendation as to whether a major contract was extended or recompeted. Is that an accurate depiction of what you told me?

Mr. ITKIN. That he asked—obviously——

Mr. BURR. The Secretary of Energy did not ask for a recommendation from his line management on a major contract as to

whether it should be recompeted or extended.

Mr. ITKIN. No, we had input in terms of—as I mentioned.

Mr. BURR. Input is significantly different than a recommendation. And I have yet to find through my service as vice chair of the

oversight committee any major contract where there was not paperwork involved for a recommendation.

Mr. ITKIN. Just to reiterate, there is—there was no formal recommendation on the part of my office to recompete or not to recompete.

60

Mr. BURR. And it is not a fault of yours for not making the recommendation, but, clearly, great concern as it relates to the Secretary’s not requesting a recommendation from the line management of this project, which we consider to be a major contract.

Let me move to Dr. Crowley, if I could. Let me read from your

statement and just ask you one question.

You said, the Energy Policy Act of 1992 directed the EPA administrator to obtain advice from NAS on the technical basis for radiation protection standards; and the act further mandated that EPA

base its standard on NAS recommendations. Did they base their

standard on the NAS recommendations?

Mr. CROWLEY. I think the answer to that question, based on the

report that the board did in 1999, is no.

Mr. BURR. So the EPA has not followed the Energy Policy Act in

its directions to the EPA administrator.

Mr. CROWLEY. That is the judgment of the Board on Radioactive

Waste Management, yes.

Mr. BURR. I thank you, Dr. Crowley.

Mr. Page, your turn. What is your background? Are you a scientist?

Mr. PAGE. No, sir, general policy background.

Mr. BURR. You graduated from the University of Southern California with a masters degree in public administration.

Mr. PAGE. Yes, sir.

Mr. BURR. Why did everybody else send scientists and the EPA

sent public relations to this hearing?

Mr. PAGE. I am sorry. I didn’t——

Mr. BURR. Why is everybody else up here a scientist, Ph.D.; and

the EPA on the issue of this technical aspect sends somebody with

a public administration background?

Mr. PAGE. I was sent because I head the Office of Radiation, Indoor Air. I am the senior person in the agency who makes recommendations to the administrator on radiation policy.

Mr. BURR. But your background is not such that the technical aspects of it are something that——

Mr. PAGE. The operation of my office—within the operation of my

office, we have many people.

Mr. BURR. I am talking about you. Do you make technical recommendations or do you make——

Mr. PAGE. Yes, sir.

Mr. BURR. [continuing] policy recommendations?

Mr. PAGE. We are responsible for making——

Mr. BURR. You. You. Not your office, you.

Mr. PAGE. In my position, I am responsible for making recommendations to the administrator that are both policy and science

based.

Mr. BURR. Based upon what your scientists found out or based

upon what you determine to be——

Mr. PAGE. Based on the work that my scientists do at the scientific community. Based on other policy considerations that we

take into account in addition to the science—cost effectiveness,

practicality of implementation, things like that.

Mr. BURR. What do you say to Dr. Crowley’s statement that, in

fact, the EPA has not followed the Energy Policy Act of 1992?

61

Mr. PAGE. As I said in my testimony, in most of the areas I think

we were generally consistent with the NAS. I think, as their testimony pointed out, that on the matter of, for instance, groundwater

that is a policy call. I think they were right in saying that EPA

needed to elaborate in its final rule if that is where it goes on the

policy aspects of that and make that clear, that that is a policy, not

a scientific judgment.

Mr. BURR. How many times have you been to Yucca Mountain.

Mr. PAGE. One time.

Mr. BURR. One time.

Mr. PAGE. Yes, sir.

Mr. BURR. And you have been in charge of this area of responsibility for how long?

Mr. PAGE. A year and a half.

Mr. BURR. How long was that trip? How long were you at Yucca

Mountain.

Mr. PAGE. We were out there a full day and got a tour of the facility.

Mr. BURR. Full day.

Mr. PAGE. Yes, sir.

Mr. BURR. What was the purpose of that?

Mr. PAGE. To be briefed by the Department of Energy at what

stage they were in the process, to get familiar with the facility and

to try to—in addition to the studies that I have been looking at and

studying and hearing from my staff, to kind of hear from them directly on any concerns or issues they have with the facility.

Mr. BURR. Could you accomplish that, all of that, in this 1-day

visit?

Mr. PAGE. The site visit was to go through the facility and match

up with things that I have read, diagrams that I have seen with

the real situation.

Mr. BURR. And from a standpoint of the individual—and I know

the University of Southern Cal is a great school, but, from your

background, 1 day at the Yucca Mountain, you could take all of the

information that your scientific team has based their recommendations on and you could make that evaluation on that everything

was accurate from a 1-day site visit to Yucca Mountain?

Mr. PAGE. Mr. Burr, the site visit was intended to complement

all of the other information that I had been presented and been collecting and have done over the last year and a half. I think you

would probably be more upset with me had I not gone at all and

sat in Washington behind a desk.

Mr. BURR. Actually, I think that is the only reason you went, so

you—if you were ever asked the question you could say, yes, sir,

I have been to Yucca Mountain.

Mr. BARTON. You have been on 24 minutes, of which I took about

6. So I think——

Mr. BURR. The clock was on the chairman, and he took 12. But

I will be happy to wrap it up.

Mr. BARTON. We are going to do more than one round.

Mr. BURR. I appreciate the chairman’s indulgence on this. One

last question.

Mr. BARTON. All right.

Mr. BURR. Is your policy based on old science or new science?

62

Mr. PAGE. Which policy are you referring to, Congressman?

Mr. BURR. The policy as it relates to what Dr. Paperiello——

Mr. PAGE. We are in the process right now of updating the

MCLs, the maximum contaminant levels, for the drinking water. It

is true that what we used for the purposes of the proposal was the

best science that was available legally. We are in the process—

though we were aware that the updated science is out there, we

are in the process of updating it right now.

Mr. BURR. I thank all of our witnesses. I am sorry I didn’t have

an opportunity to spend some time with the other ones. I yield

back.

Mr. BARTON. The gentleman from Virginia is recognized for 7

minutes.

Mr. BOUCHER. Thank you, Mr. Chairman.

I want to inquire concerning another area; and, Dr. Itkin, I suppose this question should be directed to you. In the 1982 act, a requirement was made that the Federal Government begin to accept

nuclear waste from the utilities beginning in 1998. Obviously, that

didn’t happen; and the utilities have filed suit. The U.S. Court of

Appeals has held that the contract that DOE entered into with the

various utilities pursuant to that statute to accept the waste was,

in fact, breached; and now the Court of Claims is considering the

damages that will be awarded. And I have got two questions about

that.

First of all, are these damages going to be significant, in your

opinion? What do you think the size of the damages will be? And

that question is important because of the second question. And that

is, from what source will these damages be paid?

The Federal Government has a judgment fund that is administered by the U.S. Department of Justice that is available for the

payment of judgments against the United States. However, in the

contract that was entered into between DOE and the utilities,

under the terms of which DOE obligated itself to accept this waste,

there are specific provisions that relate to any penalties that are

assessed or damages that rise from a breach of the contract. And

in those clauses the contract says that the utility is entitled to realize its damages by deducting its future payments under the waste

management fund. So, in other words, if the utility is entitled to

money from the government, it can recover that by just not paying

its future obligations into the waste management funds.

So we create a cycle through this. If this becomes the means by

which the utilities are compensated, you wind up with a worsened

problem with the perpetual inability of DOE to prepare the site

and—because it doesn’t have the funding to do it and then further

claims by the utility being filed with that. I think that is a troubling potential scenario.

So my two questions to you are, first of all, how significant are

these damages likely to be? And, second, given the two potential

funds that the government might use to pay those damages, what

is your prediction of which it is going to be? Will it be the government’s judgment fund or it will be this precise clause in the contract that would result in the waste management fund being reduced as a consequence of the damages?

Mr. ITKIN. Congressman, I will try to answer that question.

63

The first question that you asked was on our failure to realize

the provision of the contract on starting to accept the waste in 1998

if—and this is just very, you know, back of the envelope calculations in terms of what it might cost in the aggregate, you know.

Looking at every utility, not just the ones that have sued us or utility by utility, it is going to be significant. It will probably run in

the range of—for every year delay it probably could range a few

hundred million dollars, which can add up, as you know, into substantial sums of money, into billions.

Mr. BOUCHER. This is the total of all of the claims.

Mr. ITKIN. The total. We assume that whatever judgment is

awarded, whatever claim is awarded to one will probably be replicated to the others in a similar fashion. So——

Mr. BOUCHER. All of those taken together would be——

Mr. ITKIN. All of those taken together, we are talking about a few

hundred million dollars a year. Which means to me, as I have characterized it, as rent. It is almost where we have bought the new

home, and we are paying the mortgage, but we can’t get into the

new home, and we are still paying the landlord rent.

It is an unfortunate circumstance which I would like to correct,

and the easiest way of correcting it is to move as expeditiously as

possible. We can, using—you know, making good determinations;

and that is why I have asked Congress to fully fund our program

this year. And with respect to an earlier comment, by 2003 is when

we have to ramp up substantially in terms of the dollars we need.

So that will have to be done.

The second question, about who will pay or where will the money

come from, you have correctly, I guess, determined that there are

two possible sources. One is the nuclear waste fund, and the other

one is the judgment fund. Since the Department of Justice will be

making that decision, allow me the liberty of assuming that—out

of whose pocket the Department would want that—Justice Department would want to take the money from. I am assuming that

whatever liability we have will come out of the nuclear waste fund,

not the judgment fund, although that is not a determination that

I will be making. I am just assuming the bias that might occur on

the part of the agency that will make that decision.

Mr. BOUCHER. Well, if the funding comes out of the nuclear

waste fund in any manner——

Mr. ITKIN. What will probably happen is that if there is an adverse ruling, the judgment fund will pay it first, and then the Department of Justice will seek to have the waste fund repay the

judgment fund for the amount of money that the judgment—the

check will be originally cut from the judgment fund, and the judgment fund will seek recompense from the nuclear waste fund.

In order to probably deal with this in an orderly and responsible

fashion, we will probably seek to work with the utilities in terms

of offering credits on what is to be paid up in the future.

Mr. BOUCHER. Well, then do you get yourself into this syndrome

that I described earlier where this rent that you then deduct from

their future payments into the fund winds up diminishing even further your ability to prepare the site and therefore multiplies the

number of claims in the damages and eventually you find yourself

64

without the financial ability to go forward? I mean, is that a potential outcome?

Mr. ITKIN. Well, yes, it is a concern but—and we have looked at

the projected income to the fund, and we have made some, you

know, obviously some assessments as to what this might cost us,

and we feel at this particular time we can accommodate it. But, obviously, I am not privy to, you know, a court of claims determination. I don’t know what they will do. We are seeking to work with

utilities in terms of arranging to deal with this problem out of

court if we can.

Mr. BOUCHER. Have all of the utilities that have nuclear facilities

and with regard to whom you are currently under contract to accept their waste filed claims against you?

Mr. ITKIN. No, that is—they have not, not all have.

Mr. BOUCHER. Are you anticipating that those that have not will

eventually file claims? When you characterize this as basically a

rent, it is kind of an open invitation for them, isn’t it?

Mr. ITKIN. I would think that every utility would want to adjudicate its additional costs either with the Department directly or,

as you indicated, by suing us in court. But we are hoping that we

can be able to sit down and work with the utilities. After all, we—

utilities want us to get along with our business. It is in their best

interest for us to move this whole process along expeditiously, and

I think they recognize that some of—some of them recognize, at

least the operating ones, the ones that have a future, recognize

that this is something that they would like to work out with us collectively.

Mr. BOUCHER. So to summarize this discussion, your opinion is

that the nuclear waste fund is going to have the ultimate financial

liability for the damages that the utilities are claiming, even if the

judgment fund has the first responsibility, is that correct? That ultimately the responsibility will rest with the nuclear waste fund.

Mr. ITKIN. It has been an opinion of mine. It is not legally binding. It is just you asked for my thoughts, and I presented you as

I honestly believe the way it could happen.

Mr. BOUCHER. My concern then is that at the time that the fund

was structured and this one bill per kilowatt fee that creates the

fund was established, I don’t think that it was contemplated that

the fund was going to have to be responsible for several hundred

million dollars per year in payments to utilities because of the

breach of the government’s contract to accept the waste in a timely

way. And if this fund is going to have to bear that financial responsibility, I really would question whether the fund is going to be

adequate.

Even if you get the whole thing—if Mr. Barton and I are eventually successful in having the Congress that grants the fund to you,

I question whether it is going to be sufficient, given the fact that

these costs are going to multiply. They are going to reach more

than a billion dollars by that arithmetic, easily. Aren’t you concerned?

Mr. ITKIN. I am concerned. I mean, I don’t want to move over

this lightly. Obviously, if we could have prevented this from happening, we would. Simply, we could not pick up the spent fuel from

these commercial facilities because we had no place to put it.

65

Mr. BOUCHER. I think, at minimum, this discussion underscores

the importance of getting the full fund into your hands and making

sure that you have access to it at the earliest possible time.

Mr. Chairman, I think it is yet another argument in support of

legislation that we are trying to process that would achieve that result.

Mr. Itkin, thank you. I appreciate your responses.

Mr. BARTON. The chairman is going to recognize himself for 7

minutes. Before Mr. Boucher leaves, I want to get this on the

record.

We have had informal discussion up here. The Energy and Water

appropriation bill is going to be on the floor next week. Under the

rules that we operate in the House, any Member can offer an

amendment. It is an open rule. And I am prepared and Mr. Boucher is at least prepared to discuss the possibility of an amendment

that would restore your $26 million request to get you full funding

for the coming Fiscal Year.

But—and I am just speaking for myself—I am not willing to do

that unless the Department of Energy is willing to work with us

to find an offset within the Department’s budget. In other words,

so it is in order under our rules. I can say to add $26.6 million to

this particular program, but I have to have an offset for it. I am

willing to do that, and I think Mr. Boucher is willing to at least

consider doing that in a bipartisan fashion. But at least I am willing to do that if you call me pretty quick and say we want the $26

million to come from A, B, C or A or A and B or an across-theboard cut in the discretionary programs under the Department’s

permission.

Mr. BOUCHER. Would the gentleman yield to me?

Let me say that I think it is a worthwhile endeavor, and what

we are offering to you today is an opportunity, and that is our

shared willingness to go to the floor of the House and offer this

amendment. But we are going to need the help of the Department

of Energy in suggesting to us the offset for the $26 million that

would bring your appropriation up to the level of your request. I

am not sure it is actually 26. It looks like—is it 26?

Mr. BARTON. It is 413, 437.

Mr. BOUCHER. So it is an opportunity. What you might do as a

practical matter is go back and have some other conversations with

DOE about it and just see if it is the policy of DOE to fully fund

this program perhaps at the expense of some others. And if a consensus can be arrived at that to do that, we are happy to help. But

we are going to have to hear back from you. We are going to need

to hear from you pretty soon if you want to do it.

Thank you, Mr. Chairman.

Mr. BARTON. Do you understand what we are saying? We are

going to get you $26 million if you can show us where to get it

from.

Mr. BOUCHER. He has had more years in the legislative body

than you or I.

Mr. ITKIN. Somebody has to pay within the Department for the

$26 million we need. I can certainly inquire, but I am not in a position to make the call. But thank you very much for your offer to

help. I wish it was more encompassing than just the Department.

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Mr. BARTON. We have to work within the framework of the appropriations cycle. We want to get you your money. But since, you

know, this is Energy and Water we think it is only fair that it come

from other Department of Energy funds. At least, I think it is only

fair. But think about it. If you want to pursue that, let my personal

staff or committee staff know. We will get to work on it.

Mr. ITKIN. Thank you very much for, at least, the help.

Mr. BARTON. With the offer.

Mr. ITKIN. The offer to help.

Mr. BARTON. Let’s be honest. We have not helped.

Mr. ITKIN. I understand your offer, but there is no commitment

that it would work. You would offer an amendment.

Mr. BARTON. I think if Rick Boucher and Joe Barton offered the

amendment in a bipartisan way and we would say that the Department of Energy supported it, I think it would pass.

Mr. BOUCHER. I agree with that.

Mr. ITKIN. I understand. Thank you.

Mr. BARTON. Now I am going to ask my questions.

Mr. Page, I hate to belabor this, but I am going to belabor it a

little bit. I am going to read you some statements and tell me if

you have ever heard of the statement and, if you have heard of it,

who made it. These are direct quotes.

This is on the proposed EPA groundwater standard. ‘‘It is redundant and unnecessary for the protection of public health and safety.’’ Have you ever heard of that?

Mr. PAGE. I have heard of that.

Mr. BARTON. Do you know who said that, what agency said that?

Mr. PAGE. Might have been the National Academy of Sciences.

Mr. BARTON. That is a pretty good guess, but if that is your final

answer, that is not the right guess. That was made by the Department of Energy. I don’t know if Dr. Itkin made that.

Now let me read you another one, again on the EPA proposed

groundwater standard: ‘‘Would result in non uniform risk levels.

They misapplied the maximum contaminant levels for radionuclides and they far exceeded what is needed for the protection

of public health and safety.’’ Have you heard that?

Mr. PAGE. I have heard that.

Mr. BARTON. You want to make a guess?

Mr. PAGE. I am not going to take that bait. I know somebody

made that——

Mr. BARTON. That is the Nuclear Regulatory Commission that

went on the record in a comment period and said that.

One more. ‘‘EPA’s proposal to include a separate groundwater

standard lacks a sound scientific basis and will add little, if any,

additional protection to individuals or the general public from radiation releases from the repository.’’ Have you heard that?

Mr. PAGE. I have heard that. Yes, sir.

Mr. BARTON. That comes from the National Academy’s Board on

Radioactive Waste Management.

[The material referred to follows:]

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Mr. BARTON. So it doesn’t appear to me that there is a lot of support out there among the groups that have shared responsibility or

have at least an interest in this issue, supporting the separate

standard. And in the face of this, I mean, this isn’t a Congressman

that is out to make a political statement. These are on-the-record

comments by official agencies of the U.S. Government that have

the scientific and technical background to comment on this proposed separate groundwater standard. Given that, wouldn’t it be at

least possible for EPA to consider going back to an all-pathway

standard and to back away from this separate groundwater standard?

Mr. PAGE. Mr. Chairman, we will be discussing that in the interagency process. I think you have in this hearing correctly identified

the scientific concerns with the groundwater protection policy that

EPA proposed. There are other reasons, other policy issues. That

is coming up in terms of discussion across the agencies as to why

that was done, what the rationale is for it; and, yes, it will be considered or reconsidered, yes.

Mr. BARTON. Now, Mr. Burr talked about in his questions that

the science on which the 4 millirem groundwater standard is based

is old science. Sometimes old is good. Old is not necessarily bad.

I am 50, and I think old is good. But sometimes, in the scientific

arena, old is not automatically good. You mention that there is a

revision under way in the science. When do you think that might

actually come to fruition, that you will have new data on which to

look at groundwater standards?

Mr. PAGE. That is handled by another office. I can’t say exactly

when.

Mr. BARTON. Within EPA.

Mr. PAGE. Yes, sir, within EPA. My sense is that this would be

looked at and revised prior to any final decisions on Yucca, the licensing.

Mr. BARTON. Within the next year, next 6 months? Give us

some—you are not under oath.

Mr. PAGE. I understand that.

Mr. BARTON. No danger here.

Mr. PAGE. I know in discussions that we have had internally that

the Office of Water is aware of the need to update this. They are

aware of what the concern is as—specifically as it pertains to

Yucca Mountain, and they have committed to getting that under

way. I have not seen it, I am sorry to say. I can get back to you

as to when that might be, but I have not seen what their schedule

is.

Mr. BARTON. Dr.—I may say your name wrong—Knopman. I got

it right then. You have been very quiet in this whole thing. But you

represent the Technical Review Board, and you actually have a

background, as I understand it, in some of this scientific area that

is under discussion. What would your committee’s recommendation

be that you serve on today as to the need for a separate groundwater standard at Yucca Mountain? I think you all are on record

that you don’t need that separate standard, but I want to give you

a chance to correct me if I am wrong about that.

Ms. KNOPMAN. Thank you, Mr. Chairman. I didn’t mean to be

quiet; nobody called on me.

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Mr. BARTON. In this kind of a group, you have got to stand up.

You can’t just be shy and retiring or they will never let you talk.

Ms. KNOPMAN. I am not shy and retiring.

The Board is very careful to stay on the side of technical judgment as opposed to policy judgment. So the Board has not made

a statement on the appropriateness of including a separate groundwater standard. The Board, however, from a technical perspective,

does believe that we need a better understanding of what the background levels are at the Yucca Mountain site.

Mr. BARTON. The natural background.

Ms. KNOPMAN. The natural background levels. And it is also, I

guess, somewhat a matter of debate now as to what kinds of levels

of dilution might occur in the saturated zone, the groundwater that

would be likely to be tapped into as a resource. The assumptions

made about how much dilution there might affect whether or not

that standard—how that standard might be met or not. However,

the Board has stayed out of this question as it is, in the end, a policy judgment.

Mr. BARTON. But doesn’t the Board, if not have an obligation,

wouldn’t they want to take a position? Because, you know, some of

these things are political. I mean, the Nevada delegation, they are

going to be against it for political reasons. The industry—the private utility industry that has the waste stored all over the country,

they are generally going to want to be for it just to get it solved.

But it is the technical—the country, you know, puts faith in the

technical experts. When we talk about science, it is assumed that

scientists are not political, that scientists are purely objective, that

scientists only make decisions based on hard facts. And you know

that is not true. Scientists can be very political.

But in this case the Technical Review Board is tasked with being

the least political of the group. So if we are going to have a scientific debate about separate groundwater versus all pathways, I

would think the Technical Review Board position would be listened

to and given great credibility by all sides.

Ms. KNOPMAN. The Board is, I would say, is most concerned

about what is the practical difference between an all-pathways

standard and a separate groundwater protection standard. In the

context of the overall uncertainty of our estimates, we are talking

about a 10,000 year compliance period. The difference between 25

millirem, for example, on the individual pathways standard and

the 15 millirem is insignificant relative to the overall uncertainty

in our estimate.

Mr. BARTON. I agree with that.

Ms. KNOPMAN. So the question is, how close does a 4 millirem

separate groundwater standard end up coming within that same

range of or order of magnitude as the individual pathways? The

Board will need to, I think, do further analysis to understand better the point that Dr. Paperiello made about how that standard in

fact translates at the 10,000 year level, but we have not at present

undertaken such analysis.

Mr. BARTON. Let me ask you one more question. Then I will go

to Mr. Shimkus.

Has the Technical Review Board taken a position on whether you

should have a repository that cannot be reopened, that the material

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cannot be retrieved, versus a repository that if the technology

changes, if there is a scientific breakthrough, you could go in and

a hundred years from now or 200 years from now or 500 years from

now use the best science available at the time to control this material?

Ms. KNOPMAN. I think the board has operated on the assumption

that virtually any kind of repository will be—waste would be retrievable. It is just a matter of the degree of difficulty.

Mr. BARTON. The current proposal, though, is that it is not.

Ms. KNOPMAN. It is a matter of difficulty. You would mine it out.

It might be very hard.

But the Board has spoken before on the need for flexibility in designs and the need for performance confirmation testing, which

means that even if a decision is made to proceed with this, with

construction and with placement of waste, that there be continuous

monitoring, particularly in the time——

Mr. BARTON. You see, I have made comments to local officials in

Nevada that I think we should have the flexibility that if we can

find better science, find better ways to monitor, whatever we can

do that, build that in. So the bill that is going to come out of the

subcommittee next year, if I am the chairman still, is going to put

that flexibility back in, as opposed to the current situation where

we put in there we lock it up, we post it and we walk away from

it. So that might be something to have your board take a look at.

Ms. KNOPMAN. It continues to be an open question as to how long

the repository would stay open. I believe the document did assume

a 50-year closure period or that the repository would be closed after

50 years. I am not sure that——

Mr. BARTON. We want to limit—don’t misunderstand me. We

want to limit the amount of material that is in this repository. We

don’t want to leave it open-ended that you could put more material.

But to satisfy the concerns that Congresswoman Berkley had, you

know, you can’t have absolute certainty for 10,000 years, but you

should be able to build in flexibility so if we could figure out a better way to maintain it, dispose of it, to control it, we ought to have

the ability to use the best available technology a hundred years

from now, 200 years from now, whatever. That is my only point.

The gentleman from Illinois.

Mr. SHIMKUS. Thank you, Mr. Chairman.

I just stepped out of the room to call my chief of staff to see if

it was—to get his recommendation whether I would be able to stay

around for a second period of questioning. He gave me a recommendation. He said yes. The schedule looks like you can do it.

No one is at the door.

And, Dr. Itkin, you need to get better at this business. I think

most of us find it very incredulous that something as important as

a humongous, large contract—that the person in charge did not

give a yes or no, I support this. And I don’t know—and I don’t

think anybody in this room believes that you did not give a yes or

no—yes, I support them; or, no, I don’t. So, I would just respectfully request next time, when we review this again, that we fully

vet out this and—and there is responsibility.

It was just a very bad display of the worst problems of bureaucracy is no one wants to be held accountable or responsible.

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Mr. ITKIN. Congressman, if I may respond, because since we—I

gave my response, I have since learned that, in fact, there was a

memorandum written prior to my——

Mr. SHIMKUS. We thought there would be.

Mr. ITKIN. What I am saying is I did not know. I learned now

there was a memorandum written several months before my arrival that was from my office and my deputy, recommending a 10-

month delay in the recompete. And if I could yield, if it would be

appropriate, I could yield to the person who served as the acting

director during that time period.

Mr. SHIMKUS. I will let the chairman—I have some important

questions that I want to get on to for the record. That satisfies my

line of questions and I am glad that we were able to go through

the paperwork and get an answer to that question, unless the

chairman wants to jump in here.

Mr. BARTON. I was actually in a staff consultation.

Mr. ITKIN. I just want to advise the Chair that since we had that

conversation on the decision on the recompete, I have been told

that prior to my arrival at the Department, that—in this position—

that there was a memo written to the Secretary from the previous

director, acting director, to recommend a 10-month delay.

Mr. BARTON. Ten month delay in recompeting the contract?

Mr. ITKIN. Yes, recompeting the contract. As a matter of fact, if

I might, may I allow my deputy who served as the acting director

to comment at this time?

Mr. BARTON. I tell you what, let’s let Mr. Shimkus get all of his

questions. I will come back on that because I have a few more

questions on that point. So if we will just delay until Mr. Shimkus

gets his questions in, and you will have more than adequate opportunity, and I will give you some other opportunities to comment on

that.

Mr. SHIMKUS. Thank you, Mr. Chairman. The scientific community that is present here, do we accept the initial premise of the

storage site that it would be a permanent geological repository?

And if we could go down the table. Obviously, that was put into

question by our previous panel. I would like for you all representing the different agencies and scientific community—is the

premise still a permanent geological repository?

Mr. PAPERIELLO. That is the Commission’s position, a permanent

geological repository.

Mr. SHIMKUS. Thank you. Dr. Itkin?

Mr. ITKIN. That is the position of this administration.

Mr. SHIMKUS. Great. Dr. Knopman?

Ms. KNOPMAN. The Nuclear Waste Board oversees the work of

the Department of Energy, and if they are working on a permanent

repository, so are we. And I would just add, though, that a permanent geologic repository is largely an international consensus

among many other countries that have nuclear waste and are also

pursuing this.

Mr. SHIMKUS. Thank you. And again, that is the importance of

coming and that is new information that I did not know. Mr. Page?

Mr. PAGE. Yes, sir, the standard that EPA will be developing will

be assuming that it is a permanent repository.

Mr. SHIMKUS. Dr. Crowley?

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Mr. CROWLEY. The Board of Radioactive Waste Management has

looked at aspects of the Yucca Mountain repository in the past and

it is the Board’s understanding that the DOE is working toward a

permanent repository.

Mr. SHIMKUS. If I have time I may go back to that, but I want

to ask another question. Based upon the history of the transportation of nuclear waste currently, is it the scientific community’s

view that it can be done safely today?

Mr. PAPERIELLO. Yes.

Mr. SHIMKUS. Dr. Itkin?

Mr. ITKIN. Yes.

Mr. SHIMKUS. Dr. Knopman?

Ms. KNOPMAN. Yup—yes, there have been.

Mr. SHIMKUS. I like ‘‘yup.’’ That is a better one.

Ms. KNOPMAN. There have been numerous analyses that have

showed low levels of risk under both normal and accident conditions. The safety record has been good to date and corroborates the

low risks. And there has been fuel shipped safely for many decades.

However, that does not mean the transportation problem is done

with. There are lots of issues relating to emergency response and

management and coordination and some further testing that the

Board has recommended.

Mr. SHIMKUS. Before I go to Mr. Page, I would have a little comment. I think Congress understands the need to help local communities be prepared to respond, and this whole appropriation issue

and the transportation issue is up for debate. But I appreciate that

response. Mr. Page?

Mr. PAGE. We believe it can be done safely with the proper——

Mr. SHIMKUS. Dr. Crowley.

Mr. CROWLEY. The national academy doesn’t have a position on

that, but in fact it is being done safely today.

Mr. SHIMKUS. Mr. Chairman, I would like to go one more, but I

will defer if we are out of—Dr. Knopman, in the discussion you

mentioned about the science and the possibility of the dilutions of

the rem standard, but I did not hear you talk about what Mr. Page

had mentioned was a possibility of a re—my terminology is poor

and I apologize for that—but the reconcentration of that, of a larger millirem than the initial position. Is that scientifically possible?

Is that a criteria that is accepted in the scientific community?

Ms. KNOPMAN. What is—the dilution is the direction in which

the plume and the concentration of radionuclide would proceed.

However, what Mr. Page was referring to is that depending on how

the radionuclides are transported in the groundwater system, they

may remain in fairly concentrated plumes even at significant distances from the repository itself. So if you happen to stick a well

right into one of these concentrated areas of the plume downstream, you would get a higher concentration than you might closer

to the repository, but where there has been more dispersion.

Mr. SHIMKUS. I will finish up with this. Is the real debate, Dr.

Itkin, on this millirem standard, the fear of because of the higher

standard, there is going to be an increased cost to the facility

which, based upon all the budgetary constraints that the ranking

member mentioned, could astronomically increase the already treVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00100 Fmt 6633 Sfmt 6602 E:\HEARINGS\65916 pfrm08 PsN: 65916
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mendous cost burden to the taxpayers, that through the rates have

done to provide this location?

Mr. ITKIN. Well, that is a concern, that anytime you have a very

difficult standard to meet, that you have to provide additional barriers, additional protections to guarantee that to occur. And so, yes,

there are additional costs associated with very demanding standards.

But more of a concern, or at least equal or a greater concern, is

the fact that if we have a zero tolerance for leakage, we probably

cannot succeed here with the licensing process. And so it would be

a killer.

Mr. SHIMKUS. Thank you, Mr. Chairman, I yield back.

Mr. BARTON. Thank you. This is going to be the last question period because we have two pending votes on the floor and you all

have been here for 31⁄2 hours, so we will let you go pretty quick.

The first thing I will do is ask unanimous consent to include in the

record a letter from the Health Physics Society dated November 24,

1999, and it is to the United States Environmental Protection

Agency. And I am told this has been cleared by the minority. So

I am the only one here so I am not going to object. But obviously,

we are not going to do anything that is not in good faith with the

minority.

[The information referred to follows:]

HEALTH PHYSICS SOCIETY

November 24, 1999

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Central Docket Section (6102)

ATTN.: Docket A-95-12

U.S. Environmental Protection Agency

401 M Street, SW

Washington, D.C. 20460-0001

SUBJECT: The Health Physics Society’s Comments on Environmental Radiation Protection Standards for Yucca Mountain, Nevada; Proposed Rule

DEAR SIR OR MADAM: On behalf of the Health Physics Society (HPS), of which I

am President, I am writing with comments and recommendations regarding Environmental Radiation Protection Standards for Yucca Mountain, Nevada, 40 CFR

Part 197, promulgated in Federal Register Vol. 64, No. 166, August 27, 1999. These

comments and recommendations were prepared by the Society’s Legislation and

Regulation Committee.

The HPS is a professional organization of approximately 6,000 scientists, educators, engineers, and operational health physicists who are dedicated to developing,

disseminating, and applying scientific knowledge of, and the practical means for, radiation safety. The primary objective of the Society is to protect people and the environment from potentially harmful exposure to ionizing radiation. The Society concerns itself with understanding, evaluating and controlling the potential risks from

radiation exposure relative to the benefits derived.

The Society’s working principle is to keep radiation exposures from justified ‘‘beneficial’’ practices as low as is reasonably achievable. This basic tenet of radiation

safety has resulted in an exceptional history of safety and will continue to do so as

we address the important issue of high level radioactive waste (HLW) in the Yucca

Mountain repository.

In this context, the HPS appreciates the opportunity to comment on the United

States Environmental Protection Agency’s (EPA) ‘‘Standards for Yucca Mountain,

Nevada; Proposed Rule’’. The HPS believes that these standards are precedent-setting and likely to have profound impacts on future activities and standards, not only

for radioactive waste, but also for non-radioactive hazardous materials. The HPS

also believes that promulgation of the Yucca Mountain Standard (40 CFR Part 197)

is fundamental to helping resolve some of the public safety issues being encountered

at our nation’s nuclear power reactors. With the operation and decommissioning of

commercial nuclear reactors, a final repository for spent fuel and other HLW is vital

98

1From Section 801 of the Energy Policy Act of 1992.

2 ‘‘Technical Bases for Yucca Mountain Standards,’’ National Research Council Committee on

Technical Bases for Yucca Mountain Standards, National Academy Press (Washington, DC

1995)

to the public safety and health from existence of the nuclear fuel cycle. Numerous

stakeholders have proposed that allowing indefinite storage of spent nuclear fuel at

operating and decommissioned facilities is an option. However, the HPS believes

that such an option avoids, rather than offers a solution to the HLW disposal issue.

In addition, it ignores the legal obligation of the federal government to take possession of, and provide for safely disposing of spent nuclear fuel, not only from nuclear

power reactors, but also from our national defense program.

For these reasons, the HPS encourages the EPA to move forward expeditiously

with issuing 10 CFR 197 as a final rule. However, we urge the EPA to consider

changes to its proposed rule, as discussed below, to ensure that the final rule is:

1. focused on protection necessary for public health and safety;

2. consistent with applicable recommendations of relevant national and international scientific advisory organizations; and

3. in full compliance with statutory requirements.

The HPS believes that the proposed use of a separate ground-water protection requirement is: 1) not necessary to ensure protection of public

health and safety, 2) inconsistent with applicable recommendations of scientific advisory bodies, and 3) contrary to statutory requirements.

Including a separate ground-water provision will detract from the rule’s primary

purpose and focus on public health and safety. A limit on dose received by an individual from all exposure pathways, as included in the proposed rule, is fully protective of public health and safety. The EPA’s stated purpose for use of a separate

ground-water provision, i.e., to protect ground water as a resource, does not meet

the purpose of the regulation, which is ‘‘protection of the public from releases to the

accessible environment from radioactive materials stored or disposed of in the repository.’’ 1

The proposed provision for groundwater protection utilizes maximum contaminant

levels (MCLs) from EPA regulations implementing the Safe Drinking Water Act.

The MCLs for radionuclides proposed for use in the rule are generally based on an

outdated and superceded scientific understanding of radiation risk. The MCLs implied in this rule equate to a wide range of dose values (ranging over more than

two orders of magnitude), that will be considerably more restrictive in some cases,

and considerably less restrictive in others cases, than the proposed all-pathways individual dose standard. Therefore, the use of the MCLs will effectively over-ride the

individual dose standard that is the essential element of the proposed rule.

The use of a separate ground-water provision is not consistent with the recommendations of the relevant national and international scientific advisory organizations, including the National Council on Radiation Protection and Measurements

(NCRP), the International Commission on Radiological Protection (ICRP), and the

International Atomic Energy Agency (IAEA). As endorsed by the EPA’s Presidential

Guidance of 1987, these organizations unanimously endorse the use of individual

dose limits, taking into account all exposure pathways, to assure protection of public

health and safety. Further, the use of a separate groundwater provision ignores the

recommendations of the National Academy of Sciences (NAS) committee that was

established by statute to make recommendations on the scientific basis for a protective radiation standard for the Yucca Mountain repository. The NAS committee specifically did not use a separate groundwater provision because the committee ‘‘based

our recommendations on those requirements necessary to limit risks to individuals.’’ 2

Finally, the proposed use of a separate groundwater provision is contrary to statutory requirements. The Energy Policy Act of 1992 requires that the EPA ‘‘shall,

based upon and consistent with the findings and recommendations of the National

Academy of Sciences, promulgate, by rule, public health and safety standards for

protection of the public [that]... shall prescribe the maximum annual effective dose

equivalent to individual members of the public... and shall be the only such standards applicable to the Yucca Mountain site.’’ The NAS committee found that a

health standard based upon doses to individual members of the public will provide

a reasonable standard for protection of the health and safety of the general public.

Therefore, the use of a separate groundwater standard, as proposed by the EPA,

would be in direct conflict with the statutory requirement that an individual dose

standard be the only such standards applicable to the Yucca Mountain site.

The HPS believes that a 250 ©Sv (25 mrem) all-pathways individual dose

standard will be fully protective of public health and safety and is conVerDate 11-MAY-2000 14:07 Jan 04, 2001 Jkt 010199 PO 00000 Frm 00102 Fmt 6633 Sfmt 6621 E:\HEARINGS\65916 pfrm08 PsN: 65916
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sistent with recommendations of relevant scientific advisory organizations

and national and international regulations.

In its request for public comment, the EPA has noted that ‘‘. . . some countries

have individual protection limits higher than we have proposed [and] other Federal

authorities have suggested higher individual dose limits with no separate protection

of ground water.’’ The EPA has requested comments specifically on the use of an

annual Committed Effective Dose Equivalent (CEDE) limit of 250 μSv (25 mrem),

rather than the proposed annual CEDE limit of 150 μSv (15 mrem).

International and national scientific advisory organizations, including the NCRP,

ICRP, and IAEA, have recommended an annual limit of 1,000 μSv (100 mrem) Effective Dose Equivalent (EDE) as suitably protective to members of the public from exposure to all non-medical, man-made sources combined. (The EDE is inclusive of the

CEDE). As stated earlier, this recommendation has been endorsed in Presidential

Federal guidance as proposed by the EPA, and has been adopted in federal regulations.

A 250 μSv (25 mrem) CEDE standard for Yucca Mountain would represent a

small fraction of the nationally and internationally accepted annual limit of 1,000

μSv (100 mrem) EDE and is consistent with the source-specific limits in other Federal regulations, as well the regulations of many other countries. It also represents

a small fraction of the average exposure of 3,000 μSv (300 mrem) per year received

by members of the general population in the U.S. from background radiation. For

these reasons, the HPS believes that a 250 μSv (25 mrem) standard for Yucca

Mountain is fully protective.

The justification provided by the EPA for proposing an annual CEDE limit of 150

μSv (15 mrem) is not convincing. The EPA states that it is based upon a review

of various guidance, regulations and standards, as well as the NAS report. However,

the majority of the references cited include an EDE of 25 mrem. Further, the EPA

compares the proposed standard for Yucca Mountain with the 10 mrem per year

limit in the National Emission Standards for Hazardous Air Pollutants (NESHAPS).

However, the NESHAPS are used to regulate emissions from a large number of existing sources that represent actual exposures to the general population of the U.S.,

while the Yucca Mountain standard will be used to set an upper bound for analysis

and assessment of hypothetical exposures to a postulated group of individuals over

the next 10,000 years.

The EPA clarifies that the existing 25 mrem per year limit for the Uranium Fuel

Cycle (40 CFR 190), based on ICRP-2 dose methodology, ‘‘is essentially equivalent

to the risk associated with [the] proposed limit of 150 μSv (15 mrem)...[which] corresponds approximately to an annual risk of 7 chances in 1,000,000.’’ There is an

implication that there a is risk-based distinction between a 25 mrem per year and

15 mrem per year limit. The HPS has taken the position that this type of risk assessment should not be used at the levels of exposure being considered in this proposed rule. We believe that at these levels there is not a scientifically-validated

basis for reaching conclusions about differences in implied risk. A copy of the HPS

Position Statement, ‘‘Radiation Risk in Perspective,’’ is enclosed.

Finally, the EPA has not provided any analysis of the costs associated with meeting a 150 μSv (15 mrem) versus a 250 μSv (25 mrem) standard as balanced against

an expected increase in health and safety benefit. Even at the 250 μSv (25 mrem)

standard, a number of conservatisms will necessarily have to be introduced in the

licensing application to address the uncertainties and limitations in modeling for

predicting potential exposures over such long time periods (e.g., 10,000 years). However, the incremental difference in costs associated with incorporation of additional

conservatisms for a 40% lower limit could be enormous, without any demonstrated

benefit to health and safety.

The HPS believes that the final rule should employ the use of the concept

of the ‘‘average member of a critical group’’ for applying the individual

dose standard, because it is more consistent with national and international regulatory practice, as well as with specific recommendations of

the NAS committee, and will help avoid unnecessary conservatism in dose

analysis and assessment for the licensing process.

The NAS committee recommended use of an ‘‘average member of a critical group’’

for applying the individual dose standard. The critical group concept is consistent

with the recommendations of the ICRP and reflects standard national and international practice in the area of radiation protection. The EPA justifies its proposed

alternative approach, the 44 reasonably maximally exposed individual [RMEI],’’ as

an agency preference that is consistent with its practices in other EPA programs.

However, this concept has not been incorporated in an NRC licensing process, which

is where the final rule will ultimately be implemented. The HPS believes that it is

neither prudent, nor necessary, to invoke this application in this rule, especially

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when the EPA has noted that the RMEI ‘‘provides a level of protection substantially

equivalent to that which would be achieved by the [critical group concept].’’

The extensive explanation provided by the EPA in the proposed rule regarding

how the concept is to be applied goes well beyond the statutory authority assigned

the EPA in the Energy Policy Act, since the implementing authority is reserved exclusively for the NRC. Accordingly, we recommend that the EPA limit the approach

provided in the final rule to endorsing the ICRP-based critical group concept as recommended by the NAS committee.

In summary, the HPS believes that adopting these recommended changes will result in a rule that will be more effective in ensuring protection of public health and

safety. The HPS also believes it will be more suitable in supporting implementation

of the national policy for safe disposal of spent nuclear fuel and high-level waste

in a deep geologic repository.

Sincerely yours,

RAYMOND H. JOHNSON, JR., C.H.P., P.E.

President

Mr. BARTON. The Health Physics Society is a professional organization of 6,000 scientists, educators, and engineers and operational

health physicists who are dedicated to developing and disseminating scientific knowledge of and the practical means for radiation

safety. The Society’s principle is to keep radiation exposures from

justified—and I quote—beneficial practices as low as is reasonably

achievable. So this is 6,000 scientists, educators, and engineers.

And they sent this letter to the EPA on November 24th, 1999.

I will put the entire letter in the record but I am going to read

the key paragraph. It says the HPS believes that the proposed use

of a separate groundwater protection requirement is, one, not necessary to ensure protection of public health and safety; two, inconsistent with applicable recommendations of scientific advisory bodies; and three, contrary to statutory requirements.

So it would seem to me, Director Page, that this is yet one more

indication that this policy of EPA to have a separate standard is

not supported in the scientific community. Do you have any comment on this—you have not—we did not give you a chance to look

at this letter before the hearing. So I am not going to ask you to

comment on the specifics of it. But I mean, I would assume that

your people are generally aware of this letter. Okay.

You testified earlier in a question, in response to a question that

I asked you, that EPA is in the process of updating the science on

the maximum contaminant level for the Safe Drinking Water Act

requirements, and I thought you told me that EPA was not going

to issue a radiation standard for Yucca Mountain until that new

science has been assimilated within the EPA. But I want to give

you another chance to say that. Did you say earlier that you were

going to wait until you get the new science in place before you—

if you are going to continue to propose a groundwater standard? Or

is the agency going to go ahead and try to promulgate a groundwater standard sooner than that?

Mr. PAGE. Thank you for the opportunity to clarify that. Mr.

Chairman, what I did say is that we were in the process of updating the science behind the MCLs. What I also said, which is different from what you were asking——

Mr. BARTON. That is why—I thought I heard you say one thing

and the staff heard you say another.

Mr. PAGE. What I said was that I believed that the—when you

were asking me a specific time when it was going to be done, it was

my confidence that that process would conclude prior to any final

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decisions, licensing decisions by the NRC, that they would make so

that process would not get in the way.

Can I make one more clarification that I think is important for

you to know? Using the only sciences, which is what we did when

we developed our proposals, and using certain scenarios that we

proposed in the groundwater or in the proposed rule, the assessments that the Department of Energy has done and the viability

assessments and subsequent analysis that they have done shows

that they can make the licensing. So I think that is an important

clarification.

We do intend to update those MCLs and do intend to have larger

discussions on groundwater across the Federal agencies, but I just

want to tell you—I am getting a sense that you are concerned that

we might be in the way or driving costs up unnecessarily and

based on the analysis done to date, we are not one of the more important factors in there in terms of what we are——

Mr. BARTON. There was only a veto threat on the bill for this

particular standard. I would think that certainly could be construed as being in the way, or at least being a factor, since the

President of the United States said if you did not have this 4

millirem groundwater standard he was going to veto the bill. I kind

of think that is a factor.

Mr. PAGE. What I understood the veto was, there is an objection

taken, among other things, to eliminating the role that the Environmental Protection Agency would play, or a delay. That is my

understanding. I don’t remember the 4 millirem being part of the

Presidential veto.

Mr. BARTON. Well, maybe I misunderstood that. There were only

three Presidential veto threats on the House-passed bill. This is

one of them.

I want to go back to Dr. Itkin. The dialog that we had about recompete, it would be helpful if the Department of Energy could give

to the committee all documents that were prepared before the Secretary of Energy made the decision to recompete. You mentioned

one document that the acting director made. If there are other documents—now, we will send you a letter and we are real good in

drafting our letters, any and all, la-dee-da-dee-da. I used to be

oversight chairman, so I guarantee you that I can get you a letter

that covers the bases. Just—you generally said that most of the debate within the Department was more of a verbal nature between

the Secretary and various people on the issue. But to the extent

there were written documents—you mentioned one—we would like

to have that one, plus any other documents before the Secretary

made the decision. Is that understood?

Mr. ITKIN. That is understood.

[The response had not been received at time of printing.]

Mr. BARTON. Now, on that point, it is not generally a bad thing

to recompete contracts. Competition is good. It is not bad. In this

particular contract, since the critical path is critical, it really seems

inconsistent to, if you are trying to meet your milestones, to go into

a recompetition mode right when it is time to make some of those

decisions.

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Now, I understand that there are three groups competing. One

is the existing group, TRW in conjunction with Parsons

Brinckerhoff, I think. You are——

Mr. ITKIN. No, that is true.

Mr. BARTON. I am getting—one the gentleman behind you is

shaking his head and you are doing this. There is a little dichotomy

there, but that is understandable. Hopefully it will not delay the

decision. But—the decision on whether to go ahead or not go ahead

and meet these critical path requirements that you have got to

meet in the next year and a half.

But I want to be on the record explicitly, if we get some song and

dance next year that they are going to have to slip the milestone

because of the recompetition, this subcommittee is going to be very,

very upset. And I know you share that concern. I know you share

that concern; you are just being a real team player here and not

being as open as you could be if this was a private conversation as

compared to a public conversation.

Here is what I want the Department of Energy to do between

now and next year, if at all possible. The subcommittee would like

to see a proposal on funding to fully fund the construction phase

of the depository. Not just that it needs to be done, but work with

the minority, work with the majority, come up with a proposal that

we can put into a bill that the Department will support. Okay?

I would like for the entire scientific community, if it is at all possible between NRC and EPA and the technical review committee

and everybody else, to let’s solve this separate versus all pathways.

The average citizen does not understand that from Adam. If, in

fact, the scientific community wants to be scientific, we ought to be

able to resolve whether you need an all-pathway standard or you

need a separate groundwater standard, and it would be very helpful to have a meeting of the minds on that.

And then we would obviously like to make sure that—this is on

the technical review board—any outstanding issues that have not

been addressed in the review board’s opinion, we need to get those

explicitly put forward so that the Congress can demand the Department of Energy and EPA and the various Nuclear Regulatory Commission address those issues.

We have been messing with this for 18 years. It is really time

to make a decision one way or the other on this. And the timeframe

is the next 18 months, which means the next 6 months of the next

Congress we are going to have a new President; maybe President

Gore, maybe President Bush, but we are going to have a new President. Now is the time to really bring all of this to fruition, make

these decisions, and go forward.

And so with that, I am going to adjourn the hearing. I want to

thank our witnesses. These are productive. I want to alert our

EPA, NRC, and DOE folks we are going to have a very extensive

list of written questions and we are going to ask that we get answers within a month of when you get the questions. Okay?

Thank you, gentlemen, and thank you, lady, and this hearing is

adjourned.

[Whereupon, at 1:25 p.m., the subcommittee was adjourned.]

[Additional material submitted for the record follows:]

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THE NATIONAL ACADEMIES

BOARD ON RADIOACTIVE WASTE MANAGEMENT

August 18, 2000

The Honorable JOE BARTON

Chairman

Subcommittee on Energy and Power

Committee on Commerce

U.S. House of Representatives

Room 215 Rayburn House Office Building

Washington, D.C. 20515-6115

DEAR CHAIRMAN BARTON: In response to your letter dated July 20, 2000, I am enclosing responses to your follow-up questions from the June 23, 2000 hearing on radiation protection standards for Yucca Mountain. Please do not hesitate to contact

me if you need additional information.

Sincerely yours,

KEVIN D. CROWLEY

Director, Board on Radioactive Waste Management

RESPONSE TO QUESTIONS REGARDING THE JUNE 23, 2000 HEARING ON YUCCA

MOUNTAIN RADIATION PROTECTION STANDARDS

NOTE: THE FOLLOWING THREE REFERENCES ARE CITED IN THIS DOCUMENT:

1. Environmental Protection Agency [EPA], 1999: Environmental Radiation Protection Standards for Yucca Mountain, Nevada, Proposed Rule: 64 Federal Register

46976-47016 (August 27, 1999). This document contains EPA’s proposed radiationprotection standard for Yucca Mountain.

2. National Research Council [NRC], 1995: Technical Bases for Yucca Mountain

Standards: Washington, D.C., National Academy Press. This report was written for

EPA at the request of the U.S. Congress and contains the National Academies’ findings and recommendations on radiation-protection standards for Yucca Mountain.

This report is referred to as the ‘‘TYMS report’’ in this document.

3. National Research Council [NRC], 1999: Comments on Proposed Radiation Protection Standards for Yucca Mountain, Nevada by the Board on Radioactive Waste

Management: Washington, D.C., National Academy Press. This report provides a

comparison of the proposed EPA standards with the findings and recommendations

in the TYMS report. It is referred to as the ‘‘BRWM report’’ in this document.

Question 1: Please elaborate on the reasons for the Board’s opposition to EPA’s

proposed separate 4 millirem groundwater protection standard.

Response: The Board on Radioactive Waste Management [BRWM] has not taken

a position either in favor of or in opposition to EPA’s proposed groundwater standard for Yucca Mountain. Rather, the BRWM has stated (NRC, 1999, p. 11) that it

‘‘does not believe there is a basis in science for establishing such limits’’ to protect

public health. The TYMS report (NRC, 1995) concluded that an individual-protection standard would be sufficient to protect public health from a repository at Yucca

Mountain.

In my written testimony to the subcommittee, I explained why there is no scientific basis for the proposed groundwater standard. EPA made what appear to be

several arbitrary modifications in applying its safe drinking water regulations (40

CFR 141) to Yucca Mountain. In particular, the groundwater standard in EPA’s safe

drinking water regulations applies to water delivered at the tap through a public

water system, whereas the proposed groundwater standard for Yucca Mountain will

be applied to a volume of groundwater in an aquifer some 2,000 feet below the

Earth’s surface at some as-yet undetermined distance from the repository. Second,

the groundwater standard is based on a different level of risk than the individualprotection standard and, for some radionuclides, may actually provide more protection to groundwater than the individual-protection standard provides to people.

In my written testimony I also suggested how EPA could justify a separate

groundwater standard for Yucca Mountain based on science: namely, by adopting

the risk-based approach recommended in the TYMS report (NRC, 1995). I noted

that if EPA based its Yucca Mountain standards on a single value of acceptable risk,

it could express that risk in terms of two elements, one for radiation exposures

through the groundwater pathway (a groundwater standard) and one for exposures

through all pathways (an all-pathways standard). These two elements would be scientifically consistent so long as they are based on a single value of acceptable risk.

To implement this approach, however, EPA would have to modify the dose limits

for the all-pathways and groundwater standards that currently exist in its proposed

rule so that they represent the same value of acceptable risk.

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Question 2: I understand that one of the first radionuclides that could be released

from the repository would be iodine-129. What is the health risk associated with a

4 millirem dose from iodine-129? Is this within the risk range recommended by the

National Academy of Sciences? Are there other radionuclides that would fall outside

the NAS’s recommended risk range under EPA’s proposed groundwater standard?

Response: I cannot provide the subcommittee with a direct answer to this question. The BRWM has not performed a detailed examination of the health risks associated with a 4 millirem dose from iodine-129 or any other radionuclides associated

with EPA’s groundwater standard. Moreover, given that the groundwater standard

proposed by EPA is based on outdated dosimetry, as noted in the BRWM report

(NRC, 1999, p. 12) and in my written testimony (p. 10), the risk values calculated

by EPA may not be representative of actual risks.

Question 3: The Conference Report accompanying the 1992 Act read as follows:

‘‘The Conferees do not intend for the National Academy of Sciences, in making its

recommendations, to establish specific standards for protection of the public but

rather to provide expert scientific guidance on the issues involved in establishing

those standards.’’ The National Academy was not intended to usurp the EPA’s rulemaking authority, but the direction to EPA is very clear in the 1992 law—the EPA

Administrator is to set generally applicable standards for the Yucca Mountain site

‘‘based upon and consistent with the findings and recommendations of the National

Academy of Sciences.’’ Mr. Page suggested in his testimony the ‘‘EPA was to consider technical recommendations from the National Academy of Sciences.’’ However,

the law says ‘‘based upon and consistent with.’’ In your view, are the proposed EPA

standards based upon and consistent with the findings and recommendations of the

National Academy of Sciences?

Response: As noted in NRC (1999) and in my written testimony to the subcommittee, many important elements of EPA’s proposed standards are, either in design or implementation, based upon and consistent with the findings and recommendations contained in the TYMS report (NRC, 1995). These are discussed on

pages 4-5 of my written testimony to the subcommittee and include who is protected,

the level of protection for the individual-protection standard, human intrusion, and

exposure scenarios. My written testimony also identified three elements of EPA’s

proposed standards that are not based upon and consistent with the recommendations in the TYMS report: (1) use of a dose-based standard; (2) the inclusion of a

separate groundwater standard; and (3) the time period over which the standard

should be applied. My written testimony explains the nature of these inconsistencies

(see especially pages 6-13). The BRWM considers the first two of these inconsistencies to be very significant. The third inconsistency is less significant, as explained

in my response to the last question in this document.

Question 4: The National Academy recommended that EPA adopt a risk-based

standard for the protection of individuals, yet EPA proposed a dose-based standard.

I recognize that the 1992 Act directed EPA to ‘‘prescribe the maximum annual effective dose equivalent to individual members of the public. That statutory language

could be interpreted to merely dictate the final form of the standard, and certainly

does not prevent EPA from using risk, as the National Academy recommended, to

derive a final dose equivalent. Is EPA, in fact, using a risk level to determine the

final dose?

Response: The BRWM noted (NRC, 1999, p. 4) that EPA did not use risk to establish dose limits for its individual-protection standard. Instead, EPA used dose-based

standards that were carried over from existing regulations (40 CFR 191 and 40 CFR

141) and derived equivalent risk values through arithmetic conversion.

As noted in both the TYMS (NRC, 1995) and BRWM (NRC, 1999) reports, there

is no scientific basis for setting a level of protection for either a dose- or risk-based

standard. Rather, protection levels are a public policy decision, best established

through rulemaking, based on the risk the public is willing to bear from radiation

releases from a repository at Yucca Mountain. The TYMS report recommended

(NRC, 1995, p. 64-65) that the Yucca Mountain standard be based on risk because

(1) it would not have to be revised in subsequent rulemaking as scientific knowledge

advances, and (2) risk is more readily understood by the general public than dose,

and it provides a convenient way to compare hazards to public health from different

sources.

The BRWM recognized (NRC, 1999, p. 6) that establishing a risk-based standard

would be a major departure from current EPA practice and that it would be far

more difficult for EPA to ask the public about acceptable risk than follow established precedents. Nevertheless, the BRWM strongly recommended (NRC, 1999, p.

7) that EPA adopt a risk-based individual-protection standard precisely because it

requires public involvement in what is, fundamentally, an important public-policy

decision.

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Question 5: Could you please elaborate on the Board’s concerns about the time period over which the radiation standard must be applied?

Response: In its proposed rule, EPA has asked for comments on two alternative

standards for the period of compliance. The first alternative is essentially that proposed in the TYMS report (NRC, 1995) in which the period of compliance extends

to the time of peak risk from repository releases. The BRWM has no concerns about

this alternative, and in fact believes that its adoption would be consistent with the

recommendations in the TYMS report (NRC, 1995).

The second alternative applies a quantitative dose limit for a period of 10,000

years, but it also imposes an additional requirement that repository performance be

examined after 10,000 years to see if dramatic changes could be anticipated. The

BRWM recognizes that EPA can choose, as a matter of policy, to adopt the 10,000-

year limit in the second alternative. Nevertheless, the BRWM is concerned about

this alternative because EPA provides no guidance on how the required analyses are

to be carried out beyond 10,000 years or how the results are to be used in judging

the acceptability of the repository. The BRWM noted (NRC, 1999, p. 13) that ‘‘to

mandate that these results become ‘part of the public record’ but to give no indication of how they will be taken into account seems to postpone rather than solve

problems associated with licensing and provide no real benefits to protection of the

public.’’ This is especially true given that peak doses from repository releases are

likely to occur after 10,000 years.

The BRWM recommended (NRC, 1999, p. 13) that EPA either be more specific

in providing guidance on how the analyses beyond 10,000 years should be used in

determining compliance, or else explicitly pass the task for developing such guidance to the U.S. Nuclear Regulatory Commission, which is responsible for establishing regulations consistent with the final EPA rule.

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