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[Senate Hearing 108-756]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 108-756

                      LOW-LEVEL RADIOACTIVE WASTE

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                   TO

  RECEIVE TESTIMONY REGARDING ISSUES RELATED TO LOW-LEVEL RADIOACTIVE 
                                 WASTE

                               __________

                           SEPTEMBER 30, 2004

                       Printed for the use of the
               Committee on Energy and Natural Resources

                                 ______

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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                 PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma                JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho                DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee           RON WYDEN, Oregon
LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri            MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana                EVAN BAYH, Indiana
GORDON SMITH, Oregon                 DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky                CHARLES E. SCHUMER, New York
JON KYL, Arizona                     MARIA CANTWELL, Washington

                       Alex Flint, Staff Director
                   Judith K. Pensabene, Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
              Clint Williamson, Professional Staff Member
                  Jonathan Epstein, Legislative Fellow

                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Akaka, Hon. Daniel K., U.S. Senator from Hawaii..................     2
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................     4
Domenici, Hon. Pete V., U.S. Senator from New Mexico.............     1
Feinstein, Hon. Dianne, U.S. Senator from California.............     3
Gelles, Christine, Director, Office of Commercial Disposition 
  Options, Office of Environmental Management, Department of 
  Energy.........................................................     5
McGinnis, Edward G., Director, Office of Global Radiological 
  Threat Reduction, National Nuclear Security Administration, 
  Department of Energy...........................................     8
Nazzaro, Robin M., Director, Natural Resources and Environment, 
  Government Accountability Office...............................    14
Pasternak, Alan, Ph.D., Technical Director, California 
  Radioactive Materials Management Forum.........................    27

                               APPENDIXES
                               Appendix I

Responses to additional questions................................    39

                              Appendix II

Additional material submitted for the record.....................    51

 
                      LOW-LEVEL RADIOACTIVE WASTE

                              ----------                              

                      THURSDAY, SEPTEMBER 30, 2004

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:47 a.m. in 
room SD-366, Dirksen Senate Office Building, Hon. Pete V. 
Domenici, chairman, presiding.

              STATEMENT OF HON. PETE V. DOMENICI, 
                  U.S. SENATOR FROM NEW MEXICO

    The Chairman. The hearing will come to order. I want the 
witnesses to know that when we arranged this hearing we 
certainly had no way of knowing what a difficult floor 
situation we had and the difficulty we have with reference to 
our time. There is a bill on the floor which you all have read 
about, that is extremely difficult, on the reform of the CIA. 
Some of us, maybe Senator Bingaman, maybe I, will have to 
excuse myself.
    So we want to start by asking you, by first suggesting to 
you, that you prepared terrific testimony. It has been reviewed 
and we want you to abbreviate your testimony so that a few 
questions can be asked. If you do that, it will be extremely 
helpful.
    I have a detailed explanation of this problem and what you 
are going to tell us and various views. I do not think I am 
going to read it. I am just going to say that I am very--I feel 
very good about the fact that we are having hearings about an 
issue that is not a tomorrow issue; it is an issue that will 
not be here for a few years. But we do not want to wait to try 
to solve it until the date when our hospitals and all those who 
produce the kind of wastes that we are talking about here has 
no place to go except on-site. So we want to pursue with some 
degree of earnestness in advance some solutions to this. That 
is why we are here.
    So with that, I will put my statement in the record so as 
to abbreviate my remarks. They are very exciting remarks. 
Anybody that does not get to hear them, you certainly have been 
shortchanged this morning. Nonetheless, we will call on Senator 
Bingaman, and certainly what I have said does not apply to you, 
Senator.
    [The prepared statements of Senators Domenici, Akaka, and 
Feinstein follow:]
             Prepared Statement of Hon. Pete V. Domenici, 
                      U.S. Senator From New Mexico

    This oversight hearing of the Energy and Natural Resources 
Committee on the disposal of low-level radioactive waste shall come to 
order.
    The purpose of this hearing is to both evaluate and learn from a 
recent report issued by the Government Accountability Office on the 
potential disposal shortage for low-level radioactive waste in this 
country. While not an immediate problem, we must now pay close 
attention to prevent a potential future crisis.
    The GAO found that low-level radioactive waste disposal volumes 
increased 200 percent between 1999 and 2003, primarily due to this 
waste being shipped to commercial disposal facilities by the DOE.
    In 2008, which is not very far off, the Barnwell disposal facility 
in South Carolina is set to close to all states outside of its compact, 
some 34 states. The generators in these states will not have a disposal 
facility to send their waste. An example is that universities and 
hospitals that deal with nuclear medicine will have to find and pay for 
storage space on their campuses and buildings away from students, 
faculty and staff. One can only imagine that further regulatory expense 
and burden will be placed on these institutions as wastes build up with 
no where to go. This is something we need to prevent.
    I just referred to a ``compact,'' let me explain that term. In 
1980, Congress enacted the Low-Level Radioactive Waste Policy Act, 
which required states to dispose of their own low-level waste. This act 
encouraged states to form interstate compacts, or regional associations 
of states, for the purpose of low-level radioactive waste disposal. The 
thinking was that this legislation would enable states to create 
additional low-level waste sites to prevent a possible shortage of 
disposal space. There were three disposal sites for low-level waste in 
1980, today, there are still three. This act in 1980 was supposed to 
prevent the situation we are facing in 2008--a shortage of disposal 
space.
    Furthermore, I am concerned as I am sure my colleagues are that the 
GAO had to rely on information from the three commercial disposal 
operators after they discovered that the information from the national 
low-level radioactive waste database, maintained by DOE and financed by 
tax payer money, was inaccurate and unreliable.
    We will also conduct oversight today on another GAO report 
requested by my colleague Senator Akaka. This report deals with DOE 
programs to ensure recovery and safe disposal of radioactive sources to 
assure that they do not become threats to public health and safety 
through either carelessness or overt actions.
    Testifying today is Ms. Christine Gelles, Director of the Office of 
Commercial Disposition Options in the Office of Environmental 
Management at the DOE;
    Mr. Edward McGinnis, Director, Office of Global Radiological Threat 
Reduction in the National Nuclear Security Administration in the DOE;
    Ms. Robin Nazzaro, Director of the Natural Resources and 
Environment Team in the Government Accountability Office. Ms. Nazzaro, 
your team is the author of the reports, we will be curious to discuss 
your findings today;
    and
    Dr. Alan Pasternak, the Technical Director of the California 
Radioactive Materials Management Forum. Dr. Pasternak, I believe you 
testified before this committee on October 8, 1985, on the issue of 
low-level radioactive waste disposal, welcome back.

                                 ______
                                 
  Prepared Statement of Hon. Daniel K. Akaka, U.S. Senator From Hawaii

    I thank Chairman Domenici for scheduling this timely hearing on the 
security and disposal of low-level radioactive waste. There are a 
number of concerns and issues which need to be addressed regarding the 
various types of low-level radioactive waste, and I look forward to 
hearing the testimony of the witnesses today.
    Since September 11, 2001, we have faced the possibility that a 
terrorist could use a so-called ``dirty bomb'' in an attack against the 
United States. A dirty bomb combines conventional explosives with 
highly radioactive materials. If set off in the downtown of a major 
city, it could contaminate a wide area with radiation and cause death 
and destruction. Panic and substantial economic damage could also 
result.
    As ranking member on the Subcommittee on Financial Management, the 
Budget, and International Security of the Committee on Governmental 
Affairs, I asked the Government Accountability Office (GAO) to 
investigate what actions were needed to ensure continued recovery of 
unwanted sealed radioactive sources. They completed an excellent 
report, ``Nuclear Proliferation: DOE Action Needed to Ensure Continued 
Recovery of Unwanted Sealed Radioactive Sources,'' GAO-03-483, in April 
2003, focusing on greater-than-Class-C (GTCC) sealed sources.
    GTCC radiological sources are the ``high end'' of the continuum of 
low-level radioactive waste. In other words, Class A, B, and C wastes 
can generally be disposed of at existing commercial disposal 
facilities. But wastes that exceed the Nuclear Regulatory Commission's 
criteria for Class C, known as greater-than-Class-C wastes, are potent 
enough that they generally cannot be disposed of at existing 
facilities. GTCC wastes must meet progressively more stringent 
requirements for disposal.
    GAO found a pattern of inconsistency in the 17 years since the 
enactment of P.L. 99-240, the Low-Level Radioactive Waste Policy 
Amendments of 1985. The Act required the Department of Energy to 
provide a facility for disposing of all GTCC radioactive waste, 
including GTCC sealed sources that are no longer wanted by their 
owners. There is no permanent disposal site yet. Although DOE has said 
that the facility will be up and running by 2007, it seems unlikely as 
they have yet to select a potential site, let alone begin construction.
    In 1999 DOE created the Off-Site Source Recovery Project (OSRP) to 
recover unwanted GTCC sealed sources and temporarily house them at Los 
Alamos National Laboratory. According to GAO, approximately 10,000 GTCC 
sealed sources from about 160 sites across the U.S. have been recovered 
to date. While this is an achievement, the job is not done. 
Approximately 8,000 sources still remain in insecure facilities.
    At the time of the GAO study, the OSRP could not recover any 
additional GTCC sealed sources containing plutonium-239, one of the 
most highly radioactive and potent sources of radioactivity, because 
Los Alamos did not have space to meet DOE's security standards for 
storing these sources.
    Since GAO released the report, DOE found room to store 
approximately 250 of the 400 sources containing plutonium-239 
documented in the report. However, the number of known sources needing 
storage has doubled since 2003. As a result, there are still many 
holders of unwanted sources containing plutonium-239, most of which are 
universities, that must properly secured until space becomes available.
    In May 2003 I introduced S. 1045, the Low-Level Radioactive Waste 
Act of 2003, and would like to acknowledge the support of my 
cosponsors, Senators Bingaman and Landrieu. The legislation would 
require DOE to report to Congress on the current situation and future 
plans for the disposal of GTCC radioactive waste and the cost and 
schedule to complete an environmental impact statement and record of 
decision on a permanent disposal facility for GTCC radioactive wastes. 
Finally, it would require DOE to deliver to Congress a plan to provide 
for the short-term recovery of GTCC radioactive waste until a permanent 
facility is available. This legislation parallels the recommendations 
of the GAO report. Its provisions are critical to being able to secure 
sealed sources.
    As Congress works diligently this week to restructure the 
intelligence community, it must be acknowledged that there are many 
pieces to the homeland security puzzle. We must continue to work on 
national security efforts not detailed in the 9/11 Commission Report to 
ensure the security our homeland, including finding ways to secure 
radioactive sources in this country that could be used by terrorists.
    Mr. Chairman, I look forward to the testimony of the witnesses on 
this topic.

                                 ______
                                 
    Prepared Statement of Hon. Dianne Feinstein, U.S. Senator From 
                               California

    Thank you, Mr. Chairman, for holding this hearing today. I would 
especially like to welcome Dr. Alan Pasternak from the California 
Radioactive Materials Management Forum.
    I am interested in several issues being raised today:

   Are there adequate disposals for low-level radioactive 
        waste?
   Is it safe to store the waste on-site at the facilities that 
        create the waste (such as hospitals, universities, and 
        industrial facilities)?
   Is the Department of Energy doing enough to track, package, 
        secure, and dispose of Greater than Class C waste?

    I am particularly concerned with what I have learned about Greater 
than Class C (GTCC) waste, which includes radioactive waste from 
medical isotopes and other industrial uses. I am concerned because this 
waste is not being safely secured--it appears that the Department of 
Energy has not abided by the Low-Level Radioactive Waste Policy 
Amendments of 1985.
    The Act required the Department of Energy to provide a facility for 
disposing of all GTCC radioactive waste. There is no permanent disposal 
site yet. Although DOE has said that the facility will be up and 
running by 2007, it seems unlikely as they have yet to select a 
potential site, let alone begin construction.
    Approximately 8,000 sources of GTCC are still in non-secure 
facilities. At least 150 sealed sources of plutonium-239, one of the 
most highly radioactive and potent sources of radioactivity, are not 
housed in a secure facility.
    Given what we all know about the threats that our nation faces from 
al Qaeda, I am extremely concerned that the lack of adequate security 
may create a real vulnerability in our nation's homeland security 
efforts. I look forward to hearing from the Department of Energy on 
this specific issue.
    Thank you Mr. Chairman.

         STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR 
                        FROM NEW MEXICO

    Senator Bingaman. Well, thank you very much, Mr. Chairman. 
I will also just put my statement in the record, with one 
exception. I did want to mention that Senator Akaka, who is not 
able to be here today, has presented a bill, S. 1045, which 
proposes to strengthen the program to collect sealed sources 
which are greater than class C. This is a bill that I have been 
interested in. I would be interested in hearing from the 
witnesses about DOE's plans for disposing of the non-defense 
greater than class C waste and their views on this legislation. 
I know Senator Akaka wanted us to ask specifically about that 
bill in his absence.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Senator Bingaman follows:]

        Prepared Statement of Hon. Jeff Bingaman, U.S. Senator 
                            From New Mexico

    Let me thank the witnesses for coming to today's hearing and taking 
time today to testify.
    Low-level radioactive waste is a topic that is important for 
cleaning up our former atomic weapon sites and in insuring that there 
is a disposal path for our nuclear power industry and the many isotopes 
and sealed sources used commercially.
    The GAO notes that in 2003, 12 million cubic feet of low-level 
waste were permanently disposed of--a 200 percent increase since 1999. 
99 Percent of the volume was class A waste, material that will decay in 
about 100 years, but 78 percent of that was from DOE clean up program, 
or roughly 9.2 cubic million feet. The DOE program is slated to 
continue its clean up operation well past the year 2035--so I would 
like to know if the DOE knows the total volume of low-level waste they 
expect to generate and whether it will impact the commercial disposal 
operations.
    I would like to know the administration's opinion of a bill Senator 
Akaka has submitted to this committee, S. 1045, which proposes to 
strengthen the program to collect sealed sources which are Greater Than 
Class C. I believe his bill can help strengthen this very important 
program in a post 9/11 world.
    With respect to this collection program, I would like to know DOE's 
plans for disposing of the non-defense Greater Than Class C waste, for 
which the NRC requires a geologic repository unless a waiver is 
granted.
    With that let me welcome the witnesses and I look forward to their 
testimony.

    The Chairman. Thank you very much, Senator Bingaman.
    I also want to say Senator Akaka has been very interested 
in pursuing this whole issue and asked for one of the major 
studies that led to one of the panelists being here. We thank 
him for that, because he has been on top of the issue.
    I am going to start in the order that you all are listed in 
my information agenda. So we are going to start with the 
Director of the Office of Commercial Disposition Options of the 
Office of Environmental Management, Department of Energy, Ms. 
Christine--GELL-ess?
    Ms. Gelles. Very good.
    The Chairman. Wow. You do not know how badly I handle 
names, so it must be that you have a very easy name.
    [Laughter.]
    The Chairman. Proceed, please.

 STATEMENT OF CHRISTINE GELLES, DIRECTOR, OFFICE OF COMMERCIAL 
   DISPOSITION OPTIONS, OFFICE OF ENVIRONMENTAL MANAGEMENT, 
                      DEPARTMENT OF ENERGY

    Ms. Gelles. Certainly. Good morning, Mr. Chairman, Senator. 
I am happy to be here today to discuss with you the Department 
of Energy's perspective on the recent Government Accountability 
Office report, ``Low-Level Radioactive Waste: Disposal 
Availability Adequate in the Short Term, but Oversight Needed 
to Identify Any Future Shortfalls.''
    I am a career employee with the Office of Environmental 
Management, serving since December 2003 as the Director of the 
Office of Commercial Disposition Options. My office's functions 
include the statutory responsibilities assigned to the 
Department of Energy in the Low-Level Radioactive Waste Policy 
Act of 1980, as amended. Specifically, the Department is 
required to provide continuing technical assistance to the 
States and the compacts. Currently, this assistance is provided 
through the collection and dissemination of commercial low-
level radioactive waste disposal information in an on-line data 
base known as the Manifest Information Management System or 
MIMS.
    Our interactions with the States and regional disposal 
compacts are conducted primarily through our association with 
the Low-Level Radioactive Waste Forum, Incorporated, an 
independent, not-for-profit organization whose members include 
the States and regional compacts.
    Additionally, my office maintains contacts with commercial 
firms to ensure that a wide range of waste treatment and 
disposition options are available to support the Department's 
efforts to accelerate the cleanup of the former weapons 
complex. The Department currently utilizes commercial disposal 
for some low-level and mixed low-level waste streams in cases 
that it determines to be cost effective or in the best interest 
of the Department.
    We believe the GAO's report presents a fair appraisal of 
the current status of commercial low-level radioactive waste 
disposal. We agree that disposal capacity for commercial low-
level waste is sufficient in the near term and that there are 
significant uncertainties regarding capacity for Class B and C 
low-level waste after 2008, the forecast date in which the 
Barnwell facility in South Carolina is scheduled to cease 
receiving non-compact waste. We continue to monitor the status 
of commercial disposal capacity consistent with our statutory 
responsibilities because this capacity supports our accelerated 
cleanup objectives.
    During their review, the GAO determined that the 
information contained in the MIMS data base was unreliable and 
the report included a recommendation that the Secretary of 
Energy halt dissemination of information contained in the MIMS 
database as long as it included data that they characterized as 
having ``internal control weaknesses'' and that represented 
``shortcomings in its usefulness and reliability.'' The 
Department disagreed with that recommendation and has kept the 
information available to the public with a cautionary notice 
and a reference to the GAO report posted on our Internet web 
site. It is our belief that halting dissemination of this 
information would evoke sharp criticism from the States and 
compacts because many of them find the information useful to 
support their operations. Further, a majority of the users do 
not appear to agree with the GAO's conclusions about the 
quality of the data. Strong support for the Department's 
activities in the MIMS data base was expressed as recently as 
March 2004 in a resolution from the Low-Level Radioactive Waste 
Forum.
    In response to the GAO recommendations, we are taking steps 
to fix erroneous data as described in the letter that we sent 
to you on September 2, 2004. We are working with the 
responsible commercial disposal site operators to identify and 
update those records by the end of this calendar year. Just 
last week, members of the forum pledged their assistance to 
identify inaccuracies in the existing data and will support our 
ongoing efforts to validate the data. We intend to keep our 
cautionary notice posted while we complete these improvements. 
These actions will correct the deficiencies in the MIMS data 
base and ensure that we continue to support the needs of the 
States and regional disposal compacts.
    At this time I would like to add one thing to the testimony 
submitted to the committee. It regards the other GAO report 
reviewed in this hearing, ``DOE Action Needed to Ensure 
Continued Recovery of Unwanted Sealed Radioactive Sources.'' 
Mr. McGinnis, the witness from the National Nuclear Security 
Administration, will address most of the actions taken by the 
Department to respond to GAO's recommendations in the report. 
However, I would like to briefly discuss GAO's recommendation 
that the Department initiate a process to develop a permanent 
disposal facility for greater-than-Class-C radioactive waste 
and that the Secretary develop a plan that assigns 
responsibility for developing the facility, as well as other 
considerations.
    As Mr. McGinnis reported in his written testimony, the 
Office of Environment, Safety and Health has initiated 
development of an environmental impact statement under the 
National Environmental Policy Act (NEPA), to analyze the range 
of reasonable disposal alternatives. Yesterday the Department 
determined that the Office of Environmental Management would 
have the programmatic lead for the Department's 
responsibilities in this area. Accordingly, Environment, Safety 
and Health will also assume the lead in the preparation of the 
environmental impact statement, although the Office of 
Environment, Safety and Health will continue to be involved in 
an advisory capacity, as is the Department's usual practice in 
the preparation of NEPA documents. This is an important and a 
challenging assignment and we look forward to working with this 
committee in doing our best to fulfill it in a responsible and 
thoughtful fashion.
    I would be happy to answer any questions you have.
    [The prepared statement of Ms. Gelles follows:]

Prepared Statement of Christine Gelles, Director, Office of Commercial 
               Disposition Options, Department of Energy

    Mr. Chairman and members of the Committee, I am happy to be here 
today to discuss with you the Department of Energy's perspective on the 
recent Government Accountability Office (GAO) report Low-Level 
Radioactive Waste, Disposal Availability Adequate in the Short Term, 
but Oversight Needed to Identify Any Future Shortfalls. I am a career 
employee in the Office of Environmental Management, serving since 
December 2003 as Director of the Office of Commercial Disposition 
Options.
    My office's functions include the statutory responsibilities 
assigned to the Department of Energy in the Low-Level Radioactive Waste 
Policy Act of 1980, as amended. Specifically, the Department is 
required to provide continuing technical assistance to the States and 
compacts. Currently, this assistance is provided through the collection 
and dissemination of commercial low-level radioactive waste disposal 
information in an on-line data base, known as the Manifest Information 
Management System or MIMS. Our interactions with the states and 
regional disposal compacts are conducted primarily through our 
association with the Low-Level Radioactive Waste Forum, Inc., an 
independent non-profit organization whose members includes states and 
compacts.
    Additionally, my office maintains contacts with commercial firms to 
ensure that a wide range of waste treatment and disposition options are 
available to support the Department's efforts to accelerate the cleanup 
of the former weapons complex. The Department currently utilizes 
commercial disposal for some low-level and mixed low-level waste 
streams, in cases that it determined to be cost effective and in the 
best interest of the Department.
    The GAO initiated this review in August 2003, shortly before the 
implementation of the Office of Environmental Management's 
reorganization and the formation of the Office of Commercial 
Disposition Options. Therefore, other EM personnel were involved in the 
earliest phases of the report. However, since December 2003, my staff 
and I worked closely with GAO staff throughout the completion of the 
review and the compilation of this report. We believe the report 
presents a fair appraisal of the current status of commercial low-level 
radioactive waste disposal. We agree that disposal capacity for 
commercial low-level waste is sufficient in the near term, and that 
there are significant uncertainties regarding capacity for Class B and 
C low-level waste after 2008--the forecast date for when the Barnwell 
facility in South Carolina will cease to receive non-compact wastes. We 
continue to monitor the status of commercial disposal capacity, 
consistent with our statutory responsibilities, because this capacity 
supports our accelerated cleanup objectives.
    During their review, the GAO staff determined that the information 
contained in the MIMS database was unreliable, and the report included 
a recommendation that the Secretary of Energy halt dissemination of 
information contained in the online database as long as it contained 
what was characterized as ``internal control weaknesses'' and 
``shortcomings in its usefulness and reliability.'' The Department 
disagreed with the recommendation, and has kept the information 
available to the public, with a cautionary notice and reference to the 
GAO report posted on the Internet web site. It was our belief that 
halting dissemination of this information would evoke sharp criticism 
from states and compacts because many of them find the information 
useful to support their operations. Further, the majority of the users 
do not appear to agree with the GAO's conclusions about the quality of 
the data. Strong support for the Department's activities on MIMS was 
expressed as recently as March 2004 in a resolution from the Low-Level 
Radioactive Waste Forum.
    We also disagreed with GAO's suggestion that the database be 
expanded to include additional information, such as waste inventories 
at commercial generator sites or volume reduction. The Department does 
not have access to this information, and it is not apparent that the 
users of the MIMS system agree that the information is needed. Such 
modifications to the system would be costly to obtain and validate and 
would provide questionable value to the users.
    In response to the GAO report recommendation, we are taking steps 
to fix the erroneous data as described in a letter from the Acting 
Assistant Secretary for Environmental Management to you on September 2, 
2004. We are working with the responsible commercial disposal site 
operators to identify and update those records by December 31, 2004. 
Just last week members of the Low-Level Radioactive Waste Forum pledged 
their assistance to identify inaccuracies in the existing data and 
support ongoing efforts to validate data. We intend to keep our 
cautionary notice posted on the Internet web site until these efforts 
are complete. These actions will correct deficiencies in the MIMS and 
ensure we continue to support the needs of the states and regional 
disposal compacts.
    I would be happy to answer any questions you have.

    The Chairman. Thank you very much.
    We now have Senator Larry Craig, who has been interested in 
all matters nuclear, and we thank him very much for his 
presence. Do you want to make any comments, Senator?
    Senator Craig. I am here to listen.
    The Chairman. Fine, OK.
    We are going to now go to you, Mr. McGinnis. Your position 
is the Director of the Office of Global Radiological Threat 
Reduction of the NNSA, Department of Energy.
    Mr. McGinnis. That is correct.
    The Chairman. Would you please abbreviate your testimony. 
As I indicated, we are aware of it and we have some questions 
for you. Please proceed.

  STATEMENT OF EDWARD G. McGINNIS, DIRECTOR, OFFICE OF GLOBAL 
   RADIOLOGICAL THREAT REDUCTION, NATIONAL NUCLEAR SECURITY 
              ADMINISTRATION, DEPARTMENT OF ENERGY

    Mr. McGinnis. I will do so. Thank you, Mr. Chairman and 
members of the committee, for the opportunity to testify on the 
Department of Energy's radiological recovery efforts within the 
United States. With your permission, I would like to submit my 
statement for the record and just make a few remarks.
    First let me just say that DOE's radiological source 
recovery program has made significant progress in its efforts 
to accelerate and expand. This progress clearly shows how the 
Department has effectively addressed and exceeded constructive 
recommendations made by the Government Accountability Office in 
its April 2003 report.
    Before I briefly describe some of our accomplishments, I 
would like to say a few words about the radiological threat we 
are addressing. The threat posed by radiological materials in 
the United States against national security is real and needs 
to be addressed, which is why Secretary Abraham, this 
administration, and Congress have taken important steps to 
increase the threat reduction efforts with greater priority, 
increased funding, and expanded authority.
    A lesson learned from 9/11 is that common tools used in our 
society, such as commercial airliners, can be used by 
terrorists in devastating ways. Radioactive materials used in 
medicine, industry, and educational research are no exception. 
The effects of a so-called dirty bomb in public places are well 
documented and describe substantial economic impacts, depending 
on the isotope and other related factors. These impacts would 
likely result in cleanup costs and area denial for extended 
periods of time.
    Use of radioactive sources are widespread and include 
cancer treatment, blood and food irradiation, education, 
research, oil exploration, and other applications. Given their 
widespread use, strong oversight by the Nuclear Regulatory 
Commission and the Department of Energy's recovery of high-risk 
radioactive sources is critical.
    The GAO provided a fair and balanced review of the DOE's 
off-site source recovery program, which has contributed to 
substantial improvements. The GAO's five recommendations are: 
giving higher priority to the off-site source recovery program, 
ensuring adequate resources for the program, providing storage 
space for plutonium 239, strontium 90, and cesium 137, 
initiating the process to develop a disposal facility for 
greater-than-class-C wastes, and ensuring the continued 
recovery of greater-than-class-C sources.
    I am pleased to report that DOE has completed action on 
three of these recommendations. Regarding the remaining two, we 
have completed action to store plutonium 329, strontium 90, and 
we are in the process of completing work to store cesium 137. 
The recommendation concerning greater-than-class-C disposal has 
already been addressed by my colleague Ms. Gelles.
    I would also like to highlight a few of the program's 
accomplishments very quickly. Most recently, the program was 
able to recover rapidly 470 abandoned sources from a bankrupt 
company in Pennsylvania. This was the largest and most 
complicated recovery undertaken to date. Additionally, DOE 
exceeded an aggressive congressional target of recovering 5,000 
high-risk sources in just 18 months. Overall, the program has 
recovered more than 10,000 high-risk sources to date.
    These and other activities were possible due to the 
Secretary of Energy's reallocation of $3.5 million on an urgent 
basis. One notable recovery involved four large excess and 
unwanted strontium 90 sources containing more than 60,000 
curies which were in the Houston area. DOE worked closely with 
the NRC, the Department of Homeland Security, and the Federal 
Bureau of Investigation, as well as the State of Texas, to 
remove these sources just prior to the Super Bowl.
    DOE is working with DHS, NRC, and other agencies to develop 
further risk-based source recovery priorities. This resulted in 
the removal of 68 sources from 55 locations in the Boston and 
New York City areas in the month leading up to the national 
conventions. Most importantly, this included the program's 
first recovery of large cesium 137 sources from high schools.
    As part of the Office of Global Radiological Threat 
Reduction's efforts to expand its scope and leverage its 
international threat reduction experience, we are working with 
the DHS radiological pilot effort. We recently participated in 
security enhancements of a number of New York City medical 
facilities having large radioactive sealed sources and provided 
DHS with recommendations.
    Finally, the overall office is carrying out radiological 
threat reduction activities in approximately 40 countries and 
as part of the Secretary's newly established global 
radiological--global threat reduction initiative. This includes 
security enhancements to radioactive sources that are being 
used in hospitals and industrial facilities.
    This concludes my remarks and I would be happy to take any 
questions.
    [The prepared statement of Mr. McGinnis follows:]

 Prepared Statement of Edward G. McGinnis, Director, Office of Global 
       Radiological Threat Reduction, National Nuclear Security 
                  Administration, Department of Energy

    Thank you, Mr. Chairman and members of the Committee, for giving me 
the opportunity to testify on the Department of Energy's (DOE) efforts 
to recover excess and unwanted radioactive sources within the United 
States. In April 2003, the Government Accountability Office (GAO) 
issued a report (GAO-03-483) on DOE's efforts to recover radioactive 
sources inside the United States. I am proud to report that the DOE 
radioactive source recovery program has effectively addressed, and in 
some instances exceeded, these recommendations by accelerating and 
expanding its recovery activities.
    Before I describe our progress in responding to GAO's 
recommendations, I would like to say a few words about the radiological 
threat and why we are accelerating and expanding our efforts. The 
intent of terrorists to acquire radioactive materials for use in a 
radiological dispersal device is a real threat to the American public 
and needs to be addressed. One of the many lessons learned from the 
attacks of September 11, 2001 is that some of the most common tools 
used in our daily lives, such as commercial airliners, can be used by 
terrorists in serious and, in some cases, devastating ways. Radioactive 
materials, in particular, are used routinely for a variety of medical, 
industrial and educational purposes. Cobalt-60 is used in hospital 
teletherapy units to treat cancer patients; cesium-137 is used in blood 
irradiators, food irradiators and educational research; the oil 
industry uses americium-241 for well-logging sources; and strontium-90 
is used as remote power supplies. Should terrorists acquire and use 
these materials in a radiological dispersal device or so-called ``dirty 
bomb'' in public and commercial areas, the impact could be significant, 
depending on which isotope in what quantity were used and how 
effectively it was dispersed. Likely health and safety impacts would be 
modest, but economic costs are the real concern and could impose 
significant burdens on our society. Given the reality of this 
situation, Secretary Abraham, this Administration and Congress have 
taken important steps to increase radiological threat reduction efforts 
by giving them greater priority, increasing their funding and expanding 
DOE's authority in this area.
    This Committee, and Congress as a whole, provided critical support 
to DOE's radiological threat reduction efforts both domestically and 
internationally. Key Congressional action that has helped make our 
efforts possible includes: the establishment of legal authority for DOE 
to collect particularly high-activity and high-risk radioactive sources 
(Greater-Than-Class-C) within the United States via the Low-Level 
Radioactive Waste Policy Amendments Act; emergency appropriations after 
the terrorists acts of ``9/11'' for the accelerated domestic recovery 
of radioactive sources; authorization and appropriations to carry out 
dirty bomb threat reduction efforts internationally; and most recently, 
emergency supplemental funding for DOE to carry out radiological threat 
reduction work in Iraq, which resulted in the successful removal of 
nearly 1,000 high-risk radioactive sources from that country.
    I would also like to applaud the GAO for developing such a useful 
and constructive report and set of recommendations. The GAO staff did a 
very fair, balanced and competent review of the DOE's Off-Site Source 
Recovery Program. Their efforts helped us make significant improvements 
to the program.

                  GAO RECOMMENDATIONS AND DOE ACTIONS

    The GAO report made five specific recommendations, and I would like 
to briefly go over them and how DOE has responded. First, I am pleased 
to report that DOE has carried out three of the recommendations, is 
very close to carrying out the fourth, and has initiated plans to 
address the remaining recommendation.
    1. The GAO's first recommendation states that unwanted Greater-
Than-Class-C sealed sources could be used as weapons of terror. 
Therefore, the Secretary of Energy should determine whether the 
priority given to the Off-Site Source Recovery Project is commensurate 
with the threat posed by these sealed sources.
    In November 2003, the Secretary of Energy created the Nuclear and 
Radiological Threat Reduction Task Force under the National Nuclear 
Security Administration's (NNSA) Office of Defense Nuclear 
Nonproliferation. The existing Off-Site Source Recovery Program was 
transferred from the Office of Environmental Management to the NNSA and 
was made a key element of this Task Force. The Secretary then directed 
the Off-Site Recovery Program to realign its scope and mission to 
reflect the security threats posed by radioactive sources within the 
United States and to accelerate and expand its recovery efforts. In May 
2004, the Secretary announced the creation of the Global Threat 
Reduction Initiative, and the Nuclear and Radiological Threat Reduction 
Task Force, including the source recovery program, was given even 
greater importance as a key element of this Initiative. To ensure long-
term organizational and resource priority, the Secretary turned this 
Initiative into the Office of Global Threat Reduction, which is now 
managed by an Assistant Deputy Administrator within the NNSA. As part 
of these changes, the Off-Site Source Recovery Program became the 
cornerstone of what is now called the U.S. Radiological Threat 
Reduction program (USRTR), which is one of the two key pillars of the 
Office of Global Radiological Threat Reduction. The second pillar is 
the International Radiological Threat Reduction program, which has 
initiated radiological threat reduction efforts in 40 countries in 
Europe, Asia, Africa, and Central America. While the program name and 
headquarters organization have changed, the recovery operations and 
dedicated Off-Site Source Recovery Program personnel at the Los Alamos 
National Laboratory and other locations remain at the core of this 
highly successful program. These two pillars of the Global Threat 
Reduction Initiative were the focus of the successful Partners' 
Conference recently held in Vienna, Austria, and clearly demonstrate 
the Secretary of Energy's commitment to ensure that this Initiative is 
given high priority.
    2. The GAO's second recommendation was that the Secretary should 
ensure that adequate resources are devoted to the project to cover the 
costs of recovering and storing these sealed sources as quickly as 
possible.
    The Secretary has taken a number of critical funding steps to 
ensure the Department's recovery efforts are fully covered. First and 
foremost, the Secretary nearly tripled the Off-Site Source Recovery 
Program's budget from $1.96 million in fiscal year (FY) 2004 to a 
budget request in FY 2005 of $5.6 million. In addition, the Secretary 
directed that an additional $3.489 million be provided on a fast-track 
basis to the USRTR program during FY 2004 to respond to an unexpected 
Nuclear Regulatory Commission's (NRC) request to recover 470 sources 
from a bankrupt licensee in Pennsylvania, as well as a number of 
additional recovery efforts. The Secretary's proposed five-year budget 
for the recovery program also reflects important increases, including 
$8.75 million in FY 2006, $8.80 million in FY 2007, $8.86 million in FY 
2008, $8.92 million in FY 2009, and $9.53 million in FY 2010. With 
these funding levels, the Secretary of Energy has clearly demonstrated 
his commitment to provide the necessary funds and resources for this 
program to carry out its important mission.
    3. The GAO also recommended that the DOE ensure that unwanted 
Greater-than-Class-C sealed sources containing plutonium-239, 
strontium-90, and cesium-137 are properly secured to prevent their use 
in dirty bombs. In the case of sources containing plutonium-239, which 
can be used in nuclear weapons, we further recommend that the Secretary 
of Energy take immediate action to provide storage space for these 
sources at a secure DOE facility and establish milestones by which 
progress can be measured to ensure that the storage space is provided 
as soon as possible.
    Two of the three items in this recommendation have been carried 
out, and the third is in progress. In FY 2003, the USRTR program 
developed the necessary storage space at the Los Alamos National 
Laboratory and at the Nevada Test Site to secure sources containing 
plutonium-239. The program began receiving plutonium-239 sources in 
early FY 2004, and has recovered more than 260 plutonium-239 sources. 
These sources were manufactured in the 1950s, 1960s, and 1970s and 
loaned and/or leased to colleges and universities around the country by 
the Atomic Energy Commission. Due to the fact that they on loan, they 
remain the property of DOE. The USRTR program will continue to recover 
these sources until they have all been returned to the Department.
    The program in early FY 2004 also developed the necessary storage 
space at the Los Alamos National Laboratory for strontium-90. In 
February 2004, the USRTR program recovered four large strontium-90 
sources in the form of radio isotopic thermoelectric generators, which 
totaled over 60,000 curies. The USRTR worked closely with the NRC, the 
Department of Homeland Security (DHS), the Federal Bureau of 
Investigation, and the State of Texas to remove these sources from the 
Houston area just prior to the Super Bowl.
    The program originally planned on developing cesium-137 storage 
during the second half of FY 2004, but these plans were interrupted by 
the need to respond to the NRC's emergency request concerning the 
bankrupt licensee in Pennsylvania with almost 470 sealed sources as 
well as some operating issues at one of our national laboratories. 
Consequently, there was a slight delay in developing cesium-137 
storage. However, in August 2004, the USRTR successfully tested a 
capability to recover and recycle cesium-137 whereby storage is not 
required. This involved two large cesium-137 Gammator irradiator 
sources that were recovered from high schools in New York and New 
Jersey and recycled by private industry. The USRTR plans to continue to 
explore and utilize this recycling capability where possible and make 
storage a high priority for early FY 2005. The prospect of a continuing 
resolution based on an FY 2004 appropriation of only $1.9 million may 
delay the programs' ability to address this issue. The USRTR program is 
able, however, to address cesium-137 through recycling and expects to 
carry out this GAO recommendation in early FY 2005 based on our FY 2005 
funding request.
    4. The GAO also recommended that the Secretary of Energy initiate 
the process to develop a permanent disposal facility for Greater-Than-
Class-C radioactive waste to carry out the requirements of Public Law 
99-240. To help manage the process, the Secretary should develop a plan 
that would, at a minimum, assign responsibility for developing the 
facility; establish milestones by which progress can be measured; 
evaluate potential disposal options; estimate costs and schedules; and 
address legislative, regulatory, and licensing considerations.
    DOE is in the initial phase of a process to identify disposal 
options for Greater-Than-Class-C radioactive waste and ultimately 
select an option or options to be implemented. The first step will be 
to prepare an Environmental Impact Statement under the National 
Environmental Policy Act to analyze the range of reasonable disposal 
alternatives. This will include an analysis of waste inventories and 
long-term disposition alternatives and resource requirements as well as 
an assessment of legislative, regulatory and licensing requirements, 
responsibilities and needs. The Department's Office of Environment, 
Safety and Health is in the process of laying out a path forward to 
satisfy DOE's National Environmental Policy Act responsibilities and 
select a disposal alternative or alternatives. DOE has had informal 
meetings with other Federal agencies to identify their interest in 
participating in the NEPA process with the DOE. The EIS will provide 
the basis for DOE to develop cost and schedule estimates and 
implementation plans for developing disposal capacity.
    It is important to note that NNSA's sealed source recovery effort 
is not wholly dependent upon developing a new disposition path. There 
is a very capable commercial industry that can and has served as an 
effective pathway for disposition, interim storage and/or recycling for 
re-use. For example, the NNSA has determined that plutonium-239 sources 
addressed by the U.S. Radiological Threat Reduction Program are 
eligible for disposal at DOE's Waste Isolation Pilot Plant in New 
Mexico. Secondly, cesium-137 and cobalt-60 sources recovered earlier 
this year from a bankrupt commercial firm do not exceed the class C 
waste designation and have been disposed of at a commercial radioactive 
waste facility.
    The use of commercial pathways makes sense for many reasons. They 
provide a potential and significant economy of cost because they use 
existing infrastructure, which eliminates the need for certain types of 
new storage facilities. They reduce the overall demand for new high-
risk sources by maximizing the use of each source that is produced and 
introduced into the market. These actions are part of the Department's 
efforts to diversify its storage and disposition pathways, which 
ultimately result in savings to the U.S. taxpayer.
    5. Finally, the GAO recommended the development of a plan to ensure 
the continued recovery of Greater-Than-Class-C waste until a disposal 
facility is available.
    I am pleased to inform you that the Department does have a plan to 
recover Greater-Than-Class-C sources beyond the current projections for 
the availability of a disposal facility, which is reflected in the 
NNSA's five-year plan that extends to 2010. The USRTR program is 
working vigorously to plan and carry out these efforts.
    revised scope of the department's radiological recovery efforts
    The U.S. Radiological Threat Reduction Program is not only working 
with the NRC, but it is also beginning to work with the Department of 
Homeland Security and other agencies to determine which radioactive 
sources should receive highest priority for recovery. From a 
radiological security and threat reduction perspective, the levels and 
types of radioactive isotopes that are considered Greater-than-Class-C 
sources do not include the full range of radioactive sources that DOE's 
recovery program considers high-risk from the standpoint of their being 
used effectively in a radiological dispersal device. Based in part on 
DOE's significant experience in recovering and securing high-risk 
radioactive sources overseas, via its International Radiological Threat 
Reduction Program as well as on its re-examination of the scope of 
radioactive sources that should be addressed due to security concerns, 
DOE is in the process of expanding from three isotopes in mid-2003 to 
ten.
    Already, 68 sources were removed from 55 locations in the Boston, 
Massachusetts, and New York City areas during the months leading up to 
the national conventions, including large cesium-137 Gammator 
irradiator sources from a high school in Long Island, New York, and 
another in Parsippany, New Jersey. The Global Threat Reduction 
Initiative sister programs also worked with DHS' Radiological Pilot 
Project office and local agencies in conducting security assessments of 
a number of New York City medical facilities that utilize large 
radioactive sealed sources. .
    In conclusion, since November 2003, when the USRTR program moved 
under the NNSA, it has exceeded the goal set by Congress of recovering 
5,000 sources in eighteen months. It has recovered four large 
strontium-90 sources from the Houston area prior to the Super Bowl, 
responded to an emergency request from NRC to recover more than 470 
sources from a bankrupt licensee in Pennsylvania, and passed the 10,000 
source mark in terms of sources recovered since the program's 
inception. We believe this is an impressive record and the GAO audit 
recommendations helped NNSA to focus on what was necessary to achieve 
these successes.
    I would be more than happy to answer any questions that you may 
have.
    Thank you.

    The Chairman. Normally we would proceed right to you, Ms. 
Nazzaro, but we are going to ask Senator Bingaman if he would 
take a couple, ask a couple of questions, because he is on an 
extremely tight schedule. So you will be right after his 
questions.
    Senator Bingaman.
    Senator Bingaman. Thank you very much, Mr. Chairman.
    I did just really have one question that I wanted to ask 
Mr. McGinnis before I left. This is related to Senator Akaka's 
bill, S. 1045. It is his view that this legislation would help 
strengthen the source collection program in the DOE. Have you 
had a chance, has the administration had a chance, to review 
this bill and do you have a position on it that you could state 
for us today?
    Mr. McGinnis. Well, I would defer to my colleague Ms. 
Gelles, as I am in the National Security Administration side of 
the house. We focus on the secure removal of the sources. I can 
tell you that our goals are to recover and securely store 
greater-than-class-C sources that are declared excess as 
rapidly as possible. I think we all have that common goal.
    So from the standpoint of reducing the threat from dirty 
bombs, we are moving forward in that area to secure and store 
on an interim basis sources, of which I have said we have 
recovered about 10,000 already.
    Senator Bingaman. Ms. Gelles, did you have any wisdom you 
could give us about this particular bill Senator Akaka has 
proposed.
    Ms. Gelles. Senator, I am sorry, I am unable at this time 
to provide the Department's position on the draft legislation, 
but we will be happy to provide that for the record.
    [The information referred to follows:]

    The Department understands the importance of the issues raised in 
S. 1045. The Department believes that the designation of the Office of 
Environmental Management to deal with the disposal of greater-than-
Class-C (GTCC) low-level radioactive waste for which DOE is 
responsible, including preparation of an environmental impact statement 
that will evaluate the factors associated with various disposal 
options, addresses the issues and concerns raised in S. 1045. The 
Department affirms that the decision-making process on disposal options 
for GTCC low-level radioactive waste will not impede on-going and 
future efforts by the National Nuclear Security Administration to 
recover and store radioactive sealed sources that are declared excess 
and pose a security threat.

    Senator Bingaman. That would be a big help.
    That is all I had, Mr. Chairman. Thank you again for having 
the hearing.
    The Chairman. Thank you very much.
    Let me ask any of you that would like to volunteer. Could 
you for us and for the record and for the press that is here 
just tell us what we are talking about when we talk about low-
level radioactive wastes? Anything radioactive is ominous as 
people look at it. I do not mean that for real, but could you 
tell us what it is? What makes up this universe called ``low-
level radioactive waste''?
    Yes, sir, Alan, Mr. Pasternak, do you want to try it?
    Mr. Pasternak. Yes, let me take a stab at it. In my written 
testimony there is the statutory definition of ``low-level 
radioactive waste.'' It is defined as waste that is not high-
level waste, waste that is not transuranic waste. To that 
extent it is defined by what it is not. But to be more 
specific, the Nuclear Regulatory Commission has very specific 
regulations that describe class A, class B, and class C wastes, 
and than anything above that is greater-than-class-C.
    So you look to the statute and you look to the regulations 
to find out what it is. It is generated by----
    The Chairman. Where does it come from?
    Mr. Pasternak. It comes from nuclear power plants, it comes 
from universities, hospitals, industries, including the 
pharmaceutical and biotech industries, which use radioactive 
materials in their research. It is used even I think in the 
construction industry, sealed sources. The use of radioactive 
materials is ubiquitous.
    The Chairman. Now, before we go on let me just ask: 
Normally when we think of radioactive waste we think about 
nuclear power plants and we think about that kind of thing, or 
nuclear weapons. Essentially, the real concern we have about 
the expiration date is that the medical facilities of our 
Nation that produce huge quantities of this waste, if they do 
not have a place to send this they are going to have a problem 
of what they do with it and they will have to keep it on-site, 
which would not be something that would be a very good 
situation for the United States.
    How much, generally speaking, of this waste comes from 
treatment of people medically and for their health, for health 
reasons? Does anybody have an idea?
    Mr. Pasternak. I do not think much of it comes from 
treatment. Certainly some of it does. It is from the 
manufacture of the radiopharmaceuticals, it is from the 
research. The shortage of disposal capacity has already had 
some effect in research. I know of one major institution in 
California that no longer does large animal research because 
they cannot get rid of the carcasses.
    But in terms of quantities, whether you measure by 
radioactivity or you measure by volume, the major producers are 
the nuclear power plants and industries. It is a little bit 
hard to separate out medical and university because if it is 
from a university that has a medical department it is 
categorized as academic, not medical. So it is a little hard.
    The Chairman. OK, let us go to you, Ms. Nazzaro. Would you 
please proceed.

       STATEMENT OF ROBIN M. NAZZARO, DIRECTOR, NATURAL 
  RESOURCES AND ENVIRONMENT, GOVERNMENT ACCOUNTABILITY OFFICE

    Ms. Nazzaro. Thank you, Mr. Chairman and Senator Craig.
    I do have some numbers for you, Senator Domenici, on the 
volume of wastes. If you put academic and medical together it 
is .5 percent. So as was stated by Mr. Pasternak, 87, almost 
88, percent comes from the utilities and almost 10 percent 
comes from industry.
    The Chairman. OK. Thank you very much. I should have asked 
you.
    Ms. Nazzaro. In the sake of time, you asked us to look at 
six issues, so I will forego any background and just give you 
our findings on the six issues from the two reports that cover 
disposal of class A, B, and C waste as well as the greater-
than-class-C waste. We identified several changes that might 
affect disposal availability. Most notably, one facility plans 
to close its doors to most States by mid-2008, but new options 
might counter the shortfall. We also identified changes in 
Federal agency monitoring of waste management, including the 
fact that DOE no longer provides technical assistance to the 
States and its annual reporting to the Congress on waste 
disposal was terminated in 2003.
    Disposal volumes grew to about 12 million cubic feet in 
2003, an increase of 200 percent over 1999. Class A wastes 
accounted for 99 percent of that volume, which came primarily 
from DOE's cleanup program. The Envirocare facility disposed of 
almost all of the class A wastes, while Barnwell disposed of 
almost all of the B and C wastes. We relied on data from the 
disposal operators, as Ms. Gelles identified, because the data 
base that DOE maintained did not include the DOE waste shipped 
for commercial disposal and had other deficiencies. The timing 
and volume of wastes needing disposal in the future, however, 
is uncertain and will depend largely on waste disposal 
decisions by DOE and the Nuclear utility companies.
    However, there appears to be enough disposal availability, 
at least to mid-2008. Disposal availability for class A waste 
is not a problem because Envirocare has enough capacity for 
more than 20 years. Capacity at Richland and Barnwell is more 
than sufficient to serve the needs of the 14 States they serve. 
However, after mid-2008 South Carolina plans to terminate its 
access to Barnwell for the remaining 36 States that now rely on 
this facility for disposal of their B and C wastes.
    Nevertheless, any disposal shortfall is unlikely to pose an 
immediate problem because users of radioactive materials can 
continue to minimize waste generation, process them into safer 
forms, and store the waste. While these approaches can be 
costly, we did not identify any other widespread effects.
    The act has not resulted in the development of additional 
regional disposal capacity. Several reasons account for this, 
including decreased commercial waste generation, adequate 
disposal capacity, the rising cost of developing disposal 
facilities, and public and political resistance in States 
designated to host these facilities.
    Regarding the greater-than-class-C waste, DOE's lack of 
progress in providing a permanent disposal facility was the 
focus of our message. As an interim step, DOE is collecting and 
storing this material, as Mr. McGinnis mentioned. However, this 
effort has experienced a number of problems, including 
inadequate capacity to store certain isotopes.
    To better manage waste disposal, as noted by Ms. Gelles, we 
recommended that the Secretary of Energy halt dissemination of 
the information in their national data base. We do not question 
the usefulness of the data base. However, we would like to see 
them strengthen internal controls over the data reliability and 
validity. We also suggested that the Congress may wish to 
consider directing NRC to report to it if waste disposal and 
storage conditions should change enough to warrant 
consideration of new legislation. Regarding DOE's effort to 
secure the greater-than-class-C materials, we made a number of 
recommendations to better address national security risks posed 
by these materials. To date over 10,000 sources have been 
recovered. DOE is also planning to conduct the initial 
environmental analysis required to develop the permanent 
disposal facility.
    Mr. Chairman, this concludes my statement and I would be 
happy to respond to any questions you or Senator Craig may 
have.
    [The prepared statement of Ms. Nazzaro follows:]

Prepared Statement of Robin M. Nazzaro, Director Natural Resources and 
             Environment, Government Accountability Office
Low-Level Radioactive Waste--Future Waste Volumes and Disposal Options 
                             Are Uncertain

                         WHY GAO DID THIS STUDY

    Low-level radioactive waste (LLRW) management concerns persist 
despite the LLRW Policy. Act of 1980, as amended, which made states 
responsible for providing for disposal of class A, B, and C LLRW and 
made the Department of Energy (DOE) responsible for the disposal of 
greater-than-class-C LLRW. This testimony is based on GAO's June 2004 
report, which examined the adequacy of disposal availability for class 
A, B, and C wastes, and GAO's April 2003 report, which assessed 
recovery efforts involving greater-than-class-C waste. This testimony 
examines (1) changes in LLRW disposal availability since 1999, (2) 
recent LLRW disposal volumes and potential future volumes, (3) any 
current or anticipated shortfalls in disposal availability, (4) the 
potential effects of any such shortfalls, (5) the effectiveness of the 
Act in developing regional disposal options for class A, B, and C 
wastes, and (6) the status of DOE's effort to dispose of greater-than-
class-C waste.

                           WHAT WE RECOMMEND

    The reports recommended that DOE improve its database and the 
management of greater-than-class-C wastes. DOE is implementing most of 
these recommendations. In addition, GAO suggested that the Congress may 
wish to consider directing the Nuclear Regulatory Commission to report 
if LLRW conditions change enough to warrant legislative intervention.

                             WHAT GAO FOUND

    GAO's June 2004 report identified several changes since 1999 that 
have affected, or might affect, LLRW disposal availability and federal 
oversight. Specifically, one disposal facility plans to close its doors 
to most states, but new options are evolving that might offset this 
shortfall.
    According to data from the three commercial disposal facility 
operators, annual LLRW disposal volumes have increased in recent years. 
In conducting this assessment, GAO relied on data from the operators 
because DOE's national LLRW database was unreliable. The timing and 
volume of future waste needing disposal are uncertain because of the 
difficulty in forecasting disposal shipments from DOE and nuclear 
utilities.
    At current LLRW disposal volumes, disposal availability for class A 
waste is not a problem in the short or longer term. Disposal 
availability appears adequate until mid-2008 for class B and C wastes 
when, if disposal conditions do not change, most states will not have a 
place to dispose of these wastes.
    Nevertheless, users of radioactive materials can continue to 
minimize waste generation, process waste into safer forms, and store 
waste if there are no disposal options for class B and C wastes after 
2008. While these approaches are costly, GAO did not identify other 
immediate widespread effects.
    The Act has not resulted in the development of additional regional 
disposal capacity for class A, B, and C wastes. Factors limiting 
further development include less waste, adequate disposal capacity, 
rising development costs, and public and political resistance in states 
designated to host these facilities.
    DOE has not yet provided a facility for the permanent disposal of 
greater-than-class-C waste, but it is collecting this material to 
address security concerns in the interim.
    Mr. Chairman and Members of the Committee, we are pleased to be 
here today to discuss our past and ongoing work on the management of 
low-level radioactive waste (LLRW). LLRW is an inevitable byproduct of 
nuclear power generation and of government, industrial, academic, and 
medical uses of radioisotopes. LLRW includes items such as rags, paper, 
liquid, glass, metal components, resins, filters, and protective 
clothing that have been exposed to radioactivity or contaminated with 
radioactive material. States' management of LLRW continues to be a 
concern despite two-decade-old federal legislation addressing the need 
for disposal. Under the LLRW Policy Act of 1980, as amended (the Act), 
each state is responsible for providing for disposal of LLRW generated 
within the state, either by itself or in cooperation with other states, 
with the exception of waste produced by the Department of Energy (DOE) 
and the nuclear propulsion component of the Department of Navy. The aim 
of the Act was to provide for more LLRW disposal capacity on a regional 
basis and to more equitably distribute responsibility for the 
management of LLRW among the states. As an incentive for states to 
manage waste on a regional basis, the Congress consented to the 
formation of interstate agreements, known as compacts, and granted 
compact member states the authority to exclude LLRW from other compacts 
or unaffiliated states.\1\
---------------------------------------------------------------------------
    \1\ Generators of LLRW located in compact or unaffiliated states 
that do not have their own disposal facility can contract with a 
disposal facility in another compact if this compact allows them to do 
so.
---------------------------------------------------------------------------
    The Nuclear Regulatory Commission (NRC) is responsible for 
licensing LLRW disposal sites and has divided the wastes covered by the 
Act into categories of increasing levels of hazard exposure, beginning 
with class A, followed by class B and C.\2\ There are currently three 
commercial LLRW disposal facilities where these wastes can be disposed 
of--the Chem-Nuclear Systems facility in Barnwell County, South 
Carolina, the Envirocare facility in Tooele County, Utah, and the US 
Ecology facility in Benton County, Washington. DOE is responsible for 
disposing of a fourth category of LLRW, known as greater-than-class-C 
waste. This latter waste is not generally acceptable for disposal near 
the surface like the other three waste classes.
---------------------------------------------------------------------------
    \2\ Radioactive waste is classified by type of radionuclide (e.g., 
americium-241) and concentration of radioactivity (often measured in 
curies per gram).
---------------------------------------------------------------------------
    Our testimony today is based on two reports: (1) our June 2004 
report in which we examined the adequacy of LLRW disposal availability 
for class A, B, and C wastes;\3\ this report updated a 1999 report, in 
which we found that states were not developing new disposal facilities 
and that within 10 years the only facility available to waste 
generators in most states for class B and C wastes could be full,\4\ 
and (2) an April 2003 report addressing the status of DOE's program to 
dispose of greater-than-class-C waste.\5\ As you requested, our 
testimony examines the findings and conclusions of these reports and 
offers a perspective on the effectiveness of the Act. Specifically, our 
testimony examines (1) changes in LLRW disposal since 1999 that we 
identified in our 2004 report, (2) recent LLRW disposal volumes and 
potential future volumes, (3) any current or anticipated shortfalls in 
disposal availability, (4) the potential effects of any such 
shortfalls, (5) the effectiveness of the Act in developing regional 
disposal options for class A, B, and C wastes, and (6) the status of 
DOE's effort to dispose of greater-than-class-C material.
---------------------------------------------------------------------------
    \3\ GAO, Low-Level Radioactive Waste: Disposal Availability 
Adequate in the Short Term, but Oversight Needed to Identify Any Future 
Shortfalls. GAO-04-604 (Washington, D.C.: June 9, 2004).
    \4\ GAO, Low-Level Radioactive Wastes: States Are Not Developing 
Disposal Facilities, GAO/RCED-99-238 (Washington, D.C.: Sept 17, 1999).
    \5\ GAO, Nuclear Nonproliferation: DOE Action Needed to Ensure 
Continued Recovery of Unwanted Sealed Radioactive Sources. GAO-03-483 
(Washington, D.C. April 15, 2003).
---------------------------------------------------------------------------
    In summary:
    In June 2004, we identified several changes since 1999 that have 
affected, or might affect, LLRW disposal availability and federal 
oversight. These changes include South Carolina's decision to close the 
Barnwell facility to non-compact states by mid-2008, issuance of a 
license for the Envirocare facility to accept class B and C wastes 
pending approval by the Utah legislature and governor, the potential 
licensing of a new facility in Texas, and the state of Nebraska's 
litigation settlement with the Central Interstate Compact for reneging 
on its compact obligations to build a new facility. We also identified 
changes in federal agency monitoring of LLRW management. DOE no longer 
has appropriated funds to provide technical assistance to the states, 
and the annual requirement that DOE report to the Congress on LLRW 
disposal was terminated effective 2003. Furthermore, in the late 1990s, 
NRC decreased its involvement in LLRW because no disposal sites were 
being developed.
    Annual LLRW disposal volumes have increased in recent years; 
however, the timing and level of future volumes needing disposal are 
uncertain. According to data provided by the three commercial LLRW 
disposal facility operators, disposal volumes grew to about 12 million 
cubic feet in 2003, an increase of 200 percent over 1999. Class A waste 
accounted for 99 percent of the disposal volume--DOE's cleanup program 
generated about 78 percent of the total class A waste. The Envirocare 
facility disposed of 99 percent of the nation's class A waste disposed 
of in commercial facilities in 2003 while the Barnwell facility 
disposed of 99 percent of the class B and C wastes that went to 
commercial disposal. We relied on data from these operators because the 
national LLRW database maintained by DOE lacked data on the 
department's waste shipped for commercial disposal and had other 
deficiencies. Even if the data problems are resolved, uncertainties 
will remain regarding the timing and volume of LLRW needing disposal in 
the future, which will largely depend on the disposal decisions made by 
DOE and nuclear utility companies.
    There appears to be enough disposal availability to serve the 
nation's needs at least until mid-2008, when generators in many states 
might have a shortfall in disposal availability for their class B and C 
wastes. Disposal availability for class A waste is not a problem in the 
short or longer term, provided that the Envirocare facility continues 
in operation. According to Envirocare, the disposal facility can take 
20 years or more of such waste under its current license. Capacity at 
the Barnwell and Richland facilities, which are licensed to accept all 
three classes of LLRW, is more than sufficient to serve the needs of 
the 14 states within the compacts served by these facilities. However, 
South Carolina has enacted legislation to terminate non-compact states' 
access to this facility after mid-2008. This action will affect the 36 
states that currently rely on Barnwell to dispose of their class B and 
C wastes but are not members of the Atlantic compact.
    Users of radioactive materials can continue to minimize waste 
generation, process waste into safer forms, and store waste if there 
are no disposal options for class B and C wastes after 2008. These 
approaches, however, can be costly, with a higher financial burden on 
some licensees than others. Notwithstanding these business costs, we 
did not identify other effects of any shortfalls in disposal 
availability that might have wider implications.
    The Act has not resulted in the development of additional regional 
disposal capacity for class A, B and C wastes. As we previously 
reported, several reasons account for this lack of progress: decreased 
waste generation, adequate disposal capacity, the rising cost of 
developing disposal facilities, and public and political resistance in 
states designated to host these facilities.
    We reported in April 2003 on DOE's lack of progress in providing a 
permanent disposal facility for greater-than-class-C waste. DOE created 
the Off-Site Source Recovery Project as an interim step toward meeting 
its obligation under the Act. The project provides secure storage for 
material that could be particularly attractive for use in a 
radiological dispersion device, or ``dirty bomb.'' As we reported, the 
project has experienced a number of problems. For example, we noted 
that DOE had inadequate capacity to store certain isotopes, 
particularly sources containing plutonium-239 that in sufficient 
quantity could be used to fabricate a crude nuclear weapon. Such 
sources, in some cases, were not being securely stored and most holders 
of the material expressed their desire to dispose of it as quickly as 
possible.
    The two reports discussed in this testimony contained a number of 
recommendations. In our June 2004 report on disposal availability, we 
recommended that the Secretary of Energy halt the dissemination of 
information in its national LLRW database as long as the database has 
shortcomings in its usefulness and reliability. DOE decided to leave 
the database online but has added a notice to users of the database 
regarding inaccuracies and is taking steps to identify and update 
erroneous data. Our report also suggested that the Congress might wish 
to consider directing NRC to report to it if LLRW disposal and storage 
conditions should change enough to warrant consideration of new 
legislation to improve the reliability and cost-effectiveness of 
disposal availability. Our April 2003 report on DOE's Off-Site Source 
Recovery Project recommended that DOE (1) determine whether the 
priority given to the recovery project was commensurate with the threat 
posed by greater-than-class-C sealed sources, (2) provide, as soon as 
possible, storage space for sealed sources containing the isotopes 
plutonium-239, strontium-90, and cesium 137 with the appropriate level 
of security, and (3) initiate the process to develop a permanent 
disposal facility for greater-than-class-C radioactive waste, develop a 
plan to help manage this process, and develop a plan to ensure the 
continued recovery and storage of greater-than-class-C sealed sources 
until such a disposal facility is available. As a result of our 
recommendation, DOE moved the program and realigned management 
responsibility for the project out of the Office of Environmental 
Management and into the National Nuclear Security Administration (NNSA) 
in order to better address the national security risks posed by these 
materials.\6\ To date, over 10,000 sources have been recovered, but 
more still need to be collected. In addition, DOE has added more 
storage space and is again recovering sources containing plutonium-239. 
DOE is also planning to conduct the initial environmental analysis 
required to develop a permanent disposal facility for this waste.
---------------------------------------------------------------------------
    \6\ NNSA has combined the recovery project with other 
nonproliferation activities under the U.S. Radiological Threat 
Reduction Program.
---------------------------------------------------------------------------
                               BACKGROUND

    The disposal of LLRW is the end of the radioactive material life 
cycle that spans production, use, processing, interim storage, and 
disposal. In general, the life cycle starts with the procurement of the 
radioactive isotopes that have medical, industrial, agricultural, and 
research applications. The isotopes come in either sealed or unsealed 
sources. While a metal container shields a sealed source, unsealed 
sources remain accessible in a glass vial or other type of container. 
Common uses of this radioactive material are in radiotherapy, 
radiography, smoke detectors, the irradiation and sterilization of food 
and materials, gauging, and illumination of emergency exit signs. In 
the course of working with these materials, other material, such as 
protective clothing and gloves, pipes, filters, and concrete that come 
in contact with them will become contaminated. The nuclear utility 
industry generates the bulk of this LLRW through the normal operation 
and maintenance of nuclear power plants, and through the 
decommissioning of these plants. Some sealed sources can be recycled 
for other uses that require less radioactivity. Once these materials 
have served their purpose, they become LLRW. Specialized companies or 
those licensed to use these materials can reduce the volume and 
sometimes the radioactivity level of the waste through processing 
before it is either put into a licensed interim storage or a disposal 
facility. After a period of storage, some LLRW can decay to the point 
that it is safe for disposal in regulated landfill sites. During the 
life cycle, there will also be some loss of radioactive materials to 
abandonment, misplacement and theft. Figure 1 diagrams the life-cycle 
process for radioactive materials.*
---------------------------------------------------------------------------
    * All diagrams are available in committee files.
---------------------------------------------------------------------------
    In the 1960s, the Atomic Energy Commission began to encourage the 
development of commercial LLRW disposal facilities to accommodate the 
increased volume of commercial waste that was being generated. Six such 
disposal facilities were licensed, two of which, the facility in 
Washington State, licensed in 1965, and in South Carolina, licensed in 
1971, remain open today.\7\ Each of these facilities is located within 
the boundaries of or adjacent to a much larger site owned by DOE. The 
third facility in Utah is about 80 miles west of Salt Lake City. Utah 
initially licensed the Envirocare facility in 1988 to accept naturally 
occurring radioactive waste. In 1991, Utah amended the license to 
permit the disposal of some LLRW, and the Northwest Compact agreed to 
allow Envirocare to accept these wastes from non-compact states. By 
2001, the facility was allowed to accept all types of class A waste. 
Because of its higher radioactive content, greater-than-class-C waste 
cannot be disposed of in these commercial disposal facilities. Instead, 
the Act requires DOE to provide a facility for disposing of all 
greater-than-class-C radioactive waste.
---------------------------------------------------------------------------
    \7\ Under the auspices of the Atomic Energy Commission, four other 
commercial disposal facilities were licensed in the 1960s, including 
facilities in Illinois, Kentucky, Nevada, and New York.
---------------------------------------------------------------------------
    Currently, 10 compacts include 43 states: the Appalachian, 
Atlantic, Central, Central Midwest, Northwest, Midwest, Rocky Mountain, 
Southeast, Southwestern, and Texas compacts. Seven states, as well as 
the District of Columbia and Puerto Rico, are unaffiliated. Figure 2 
shows the state LLRW compacts and unaffiliated states.

   SINCE 1999, LLRW DISPOSAL AVAILABILITY AND FEDERAL OVERSIGHT HAVE 
                                CHANGED

    In June 2004, we identified a number of important changes that had 
occurred since our 1999 report; these changes have affected, or might 
affect, future disposal availability for these wastes and federal 
oversight of states' LLRW management. Changes that might have 
implications for long-term disposal availability include the following:

   In 2001, South Carolina enacted legislation restricting the 
        use of the Barnwell disposal facility to generators in the 
        three-member Atlantic compact after mid-2008. In the past, the 
        state legislature has changed its position on restricting 
        access to this facility, both closing and reopening the 
        facility to non-compact member states over the years.
   In 2001, Envirocare received a license from the state 
        regulatory authority to accept class B and C wastes pending 
        approval by the Utah legislature and governor. Currently, the 
        state has imposed a moratorium on approving the use of this 
        license until February 2005, after a review of the 
        recommendations of a hazardous waste regulation and policy task 
        force. The task force is expected to issue its final report by 
        November 2004. Granting approval for Envirocare to use its 
        class B and C wastes license could help to alleviate a 
        shortfall in disposal availability for class B and C wastes.
   In 2003, Texas enacted legislation designating a geographic 
        area in the state as acceptable for a new LLRW disposal 
        facility, and the state regulator developed a license 
        application process for this facility. In August 2004, a 
        private company submitted a license application to the Texas 
        Commission on Environmental Quality for approval to construct 
        and operate a disposal facility 30 miles west of Andrews, 
        Texas. Current projections by the state of Texas suggest that 
        the earliest a facility could be licensed is 2007. Non-compact 
        states' access to this facility has not been determined. If the 
        Texas facility were allowed to accept waste nationally, it 
        would mitigate a potential shortfall in disposal availability 
        for class B and C wastes.
   In 2004, the Court of Appeals for the 8th Circuit affirmed a 
        federal district court decision that Nebraska, as a designated 
        host state, is liable for $151 million in damages for reneging 
        on its obligations to the Central Compact to. build a disposal 
        facility. Since the issuance of our June 2004 report, the 
        Central Interstate Compact voted to accept a settlement with 
        Nebraska for $141 million plus interest. Under the settlement, 
        if Nebraska and other compact members negotiate access to the 
        proposed disposal facility in Texas, the amount Nebraska would 
        have to pay would be reduced to $130 million plus interest.

    The remaining changes affect federal agency guidance and oversight 
of LLRW management by the states. These include the following:

   In 2001, DOE significantly diminished its involvement in 
        guiding and overseeing LLRW management by the states. DOE's 
        reporting requirement on LLRW management, as originally 
        required by the Act, terminated effective May 2000. In 
        addition, DOE's technical assistance activities under the Act 
        have essentially ended after a period of shifting emphasis and 
        decline.
   Since the late 1990s, NRC has decreased its direct 
        involvement in states' LLRW management because no new disposal 
        sites were being developed and more states have taken on the 
        responsibility for the regulation of radioactive material from 
        NRC.

             ANNUAL LLRW DISPOSAL VOLUMES HAVE INCREASED, 
                    BUT FUTURE VOLUMES ARE UNCERTAIN

    Annual LLRW disposal volumes have increased significantly in recent 
years, primarily the result of cleaning up DOE sites and 
decommissioning nuclear power plants. To obtain disposal volume 
information, we relied on data from the three commercial disposal 
facility operators because the Manifest Information Management System 
(MIMS)--the online commercial disposal LLRW database maintained by 
DOE--is not as up-to-date as the facilities' data and has other 
deficiencies. Future disposal volumes remain uncertain and will depend 
largely on waste disposal decisions by DOE and nuclear utility 
companies.
LLRW Disposal Volumes Have Increased Significantly Since 1999
    Since the beginning of 1999, disposal volumes have steadily 
increased to over 12 million cubic feet in 2003, an increase of over 
200 percent. Class A waste accounted for 99 percent of all waste 
disposed of at the three commercial disposal facilities. The Envirocare 
facility received 99 percent of this class A waste, and about 78 
percent of this class A waste came from DOE clean up sites. According 
to Envirocare, DOE has increased its shipment of waste to the facility 
from about 36,000 cubic feet in 1994 (6.6 percent of the class A waste 
disposed) to almost 9.3 million cubic feet in 2003 (77.8 percent of the 
class A waste disposed). In contrast, disposal volumes of commercial 
class B waste declined 47 percent, from about 23,500 cubic feet in 
1999, to about 12,400 cubic feet by 2003. Commercial class C waste 
disposal volumes were more volatile, changing as much as 107 percent in 
a single year. The total annual disposal volume of class C waste 
alternately rose and fell between 1999 and 2003, with the annual total 
reaching over 20,000 cubic feet in 1999, falling as low as about 11,000 
cubic feet in 2002, then rising to over 23,000 cubic feet in 2003. Of 
the total class B and C wastes disposed of in commercial facilities in 
2003, 99 percent went to Barnwell.

Concerns about the Completeness and Reliability of National LLRW 
        Database
    Because of concerns about data completeness and reliability, we did 
not use the database that DOE maintains and operates for the LLRW 
community and public when we determined recent disposal volumes. Nor 
did we use other information in this database to analyze sources of 
LLRW by state, compact, and generator type because of shortcomings in 
its usefulness and reliability. Instead, we relied on data supplied to 
us from the three commercial disposal operators for our analysis 
because these data include DOE waste volumes sent for commercial 
disposal, are more up to date and are the primary source data input 
into MIMS.
    With respect to data completeness, even though DOE ships large 
quantities of LLRW to a commercial disposal facility, this information 
is not captured in MIMS. Also, other types of information, such as the 
storage of waste and volume of waste reduction, are not collected in 
this database. The consensus among the compact and unaffiliated state 
officials we surveyed was that they could more effectively regulate and 
monitor LLRW in their compacts and states if MIMS offered more 
comprehensive and reliable data. Despite these shortcomings, these 
officials have sometimes used MIMS data as a convenient source of 
information for public, media, and stakeholder inquiries, as a means of 
monitoring LLRW within their compact or region, and as an external 
check on the LLRW interstate shipment data reported to compact and 
state regulators by the disposal operators.
    We also identified shortcomings in the reliability of the MIMS 
database. We found inconsistencies between what the disposal facility 
operators claimed had been disposed of at their facilities and what was 
recorded in this database. For example, excluding waste generated by 
DOE, the volumes of LLRW reported to us by Envirocare for 1999 to 2003 
totaled 10.4 million cubic feet, compared to the 15.7 million cubic 
feet reported in MIMS. There were also problems with other kinds of 
data in MIMS. States and compacts have also identified discrepancies 
that undermine the data's usefulness, particularly regarding the state-
specific information on the origins of waste. For example, Tennessee, 
which is the base of operations for companies that transport and 
process the waste from generators in other states prior to disposal, 
reports that it is erroneously recorded in MIMS as the state of origin 
of this waste.
    The data DOE puts into MIMS comes from the three commercial LLRW 
disposal facility operators in electronic format. DOE pays each 
operator varying amounts of money to extract data from the records 
accompanying shipments of LLRW that provide information on the volume, 
radioactivity level, source, and other information about the waste. 
These records are called manifests, and NRC requires their use to track 
shipment of radioactive materials. The disposal operator then transmits 
some of this information to DOE for entry into MIMS. Each disposal 
facility operator is responsible for ensuring the validity of these 
data, but DOE's contracts with these operators leave to them what 
steps, if any, should be taken to validate the data. DOE takes no 
responsibility for verifying the accuracy of the data supplied by the 
disposal facility operators. Furthermore, while DOE takes some steps to 
ensure that it accurately uploads operator-supplied data into MIMS, it 
does not perform other systematic quality checks on the data, such as 
``reasonableness'' checks, cross tabulations, or exceptions reports. As 
a result, the lack of consistent and comprehensive internal controls, 
such as controls over information processing, undermine our confidence 
in the data output in MIMS for several types of information, including 
sources of waste coming from states, compacts, and generator types.
    We recommended in our June 2004 report that the Secretary of Energy 
halt dissemination of information in DOE's national LLRW database as 
long as the database has shortcomings in its usefulness and 
reliability. DOE subsequently decided to leave the database online but 
has added a notice to users of the database regarding inaccuracies and 
is taking steps to identify and update erroneous data.

Uncertainties Surround Projecting Future LLRW Disposal Volumes
    Notwithstanding problems obtaining comprehensive and reliable LLRW 
disposal data, uncertainties remain concerning the timing and volume of 
LLRW needing disposal in the future, which largely will depend on the 
disposal decisions made by nuclear utility companies and DOE, as well 
as on possible changes in regulatory standards for what constitutes 
LLRW. For example, officials at DOE told us that projections for sites 
now being cleaned up have not proven very accurate, and have tended to 
significantly overestimate waste volumes that would require disposal as 
LLRW. They cited several reasons for this difficulty: records from 
``legacy'' sites--former nuclear weapons production sites that DOE is 
cleaning up--have not proven to be reliable; the decay rate of known 
buried radioactive wastes have often been higher than expected so 
wastes that were expected to need disposal as LLRW can instead be 
legally classified as radioactive waste mixed with nonradioactive but 
hazardous wastes and sent to less expensive disposal facilities; 
contractors have become more innovative and skilled in sorting and 
segregating hazardous and mixed wastes from LLRW so that a higher 
percentage of wastes can be disposed of as hazardous or mixed wastes 
rather than LLRW; and some debris and material from site cleanup 
projected to be LLRW has no appreciable radioactivity when generated 
and can therefore be disposed in sanitary landfills or other non-LLRW 
disposal facilities. There are some indications that the volume of DOE 
cleanup waste likely to be sent to commercial LLRW disposal facilities 
could currently be at or near a peak and could soon rapidly decline as 
cleanup at some DOE sites winds down and as cleanup activity shifts to 
other DOE sites that have considerable on-site disposal capacity. As a 
result, DOE officials expect the use of commercial LLRW disposal 
facilities will start declining after 2006 and will stay comparatively 
low until another anticipated spike in 2014. DOE officials stressed, 
however, that ``high confidence numbers'' are not yet available because 
the department is still in the process of reorganizing and developing 
new baselines for its accelerated cleanup projects, and it does not 
have a management system in place to develop corresponding waste 
projections.
    Potential changes to the threshold at which waste is classified as 
LLRW are currently under consideration and could affect the amount of 
waste needing disposal in the future. The National Research Council and 
the Environmental Protection Agency (EPA) are separately studying this 
issue and considering possible changes that might affect the future 
management of LLRW. The National Research Council is studying the issue 
because members of its Board on Radioactive Waste Management are 
concerned that the statutes and regulations governing LLRW management 
may be overly restrictive in some cases, leading to excessive costs and 
other burdens on the waste generator and, in other cases, may lead to 
an exaggeration of the potential risks posed by these materials. EPA is 
examining its existing waste regulations and has begun soliciting 
public comment as it considers new rulemaking in this area 
Specifically, EPA is exploring an option with NRC to establish a 
regulatory framework that allows some of the lower activity radioactive 
waste to be disposed of at non-LLRW disposal facilities. Finally, and 
in a similar vein, government and industry LLRW stakeholders have 
discussed harmonizing U.S. standards with the prevailing international 
standards for LLRW under consideration by the International Atomic 
Energy Agency. Such a change could prompt U.S. regulators to consider 
raising the threshold at which the radioactivity of waste would trigger 
regulation as LLRW and would allow for lower activity LLRW to be 
disposed of under other regulatory regimes.

       LLRW DISPOSAL AVAILABILITY APPEARS ADEQUATE UNTIL MID-2008

    Disposal availability appears adequate to serve the nation's needs 
at least until mid-2008, when many states might lose disposal access 
for their class B and C wastes. Disposal availability for class A waste 
is not a problem in the short or longer term. According to Envirocare 
representatives, their disposal site, which accepted over 99 percent of 
the nation's commercially disposed of class A waste in 2003, has enough 
capacity to accept this waste at the current volume levels for more 
than 20 years. The Richland facility has about 21 million cubic feet of 
capacity remaining for all classes of waste, which is more than enough 
to accommodate the LLRW coming from the 11 states in the Northwest and 
Rocky Mountain compacts until the expected closure of this facility in 
2056. The Barnwell disposal facility has about 2.7 million cubic feet 
of remaining capacity, most of which has been set aside for waste from 
generators in the Atlantic Compact until 2050. Barnwell also appears to 
have enough disposal capacity to continue accepting class B and C 
wastes from other states until mid-2008, when it is scheduled to close 
to all but the three Atlantic compact states. According to the Director 
of Disposal Services at Chem-Nuclear Systems, the operator of the 
Barnwell facility, there should be enough space at the facility to 
accommodate the typical 20,000 to 25,000 cubic feet of class B and C 
wastes accepted at this facility in recent years. This representative 
told us that many generators have already contracted to dispose of 
their B and C wastes in the short-term, and any generator outside of 
the Atlantic Compact anticipating a need to dispose of these wastes 
could still contract for the necessary space until mid-2008.
    A number of factors support the likelihood that disposal space for 
class B and C wastes will be available at Barnwell until mid-2008, if 
disposal volumes do not exceed anticipated levels. Based on current 
space commitments at this disposal facility under the conditions of the 
volume caps set by the South Carolina legislature, there remains 
between 24,500 to 44,500 cubic feet of uncommitted space until 2008. 
The amount of space available depends on whether Atlantic Compact 
generators use all of their set-aside space through 2008. In addition, 
utilities are likely to take more aggressive efforts to ensure 
sufficient space for class B and C wastes at Barnwell. Industry 
officials said utilities might consider several initiatives and 
conditions that could alleviate the diminishing disposal availability 
for class B and C wastes. For example, utilities could send class A 
waste to Envirocare rather than Barnwell to save the remaining space at 
Barnwell for class B and C wastes. In addition, utilities might 
increase waste reduction efforts and storage.
    After 2008, disposal availability for the class B and C wastes 
generated in the 36 states outside the Northwest, Rocky Mountain, and 
Atlantic compacts is more uncertain. Disposal availability for these 
states will depend on a number of possibilities, including extending 
access to Barnwell beyond mid-2008 or creating new disposal options for 
these classes of waste. The Barnwell facility has opened and closed to 
non-compact member states before and could again. Given the 
difficulties of attracting class A waste to Barnwell because of the 
high disposal fees, and the fairly consistent level of class B and C 
wastes shipped to this site each year, the facility might not even 
reach its volume cap of 35,000 cubic feet per year after 2008. In 
addition, the set-aside of 2.2 million cubic feet for Atlantic Compact 
generators through 2050 may be negotiated downward, freeing up 
additional space at this disposal facility. It is also possible that 
new disposal options will become available in the future that could 
alleviate any disposal crisis for class B and C wastes. Finally, 
regardless of the outcome, representatives of the Nuclear Energy 
Institute, the policy organization of the nuclear energy industry, said 
that utilities, the greatest generator of class B and C wastes, can 
store these wastes on site if they have no disposal option.

              ANY LLRW DISPOSAL SHORTFALL AFTER MID-2008 
                   UNLIKELY TO POSE IMMEDIATE PROBLEM

    If after mid-2008, there are no new disposal options for class B 
and C wastes, licensed users of radioactive materials can continue to 
minimize waste generation, process waste into safer forms, and store 
waste pending the development of additional disposal options. These 
approaches, however, can be costly, with a higher financial burden on 
some licensees than others. Notwithstanding these business costs, we 
did not identify other effects of any shortfalls in disposal 
availability that might have wider implications.

LLRW Minimization and Storage Can Lessen Effects of Any Disposal 
        Shortfall
    The licensed users of radioactive materials that must eventually 
dispose of their LLRW have employed a variety of techniques to both 
minimize and process this waste to reduce its volume before storage and 
eventual disposal. These techniques include substituting nonradioactive 
materials for radioactive materials, separating radioactive materials 
from nonradioactive materials, recycling, compaction, dilution, and 
incineration. For example, it is reported that most large research 
institutions make concerted efforts to find suitable and appropriate 
alternatives to the use of radioactive materials. One university 
official told us that such efforts have reduced LLRW generation at his 
institution by 30 percent in the last 5 years. The Electric Power 
Research Institute is encouraging nuclear utilities to use vendor 
volume reduction programs for resins, the single largest component of 
class B and C wastes, to reduce volume. Some licensees have used 
processors to super-compact class A waste to achieve up to a 5,000 
percent reduction in volume, or to reduce this waste to ash through 
incineration, albeit increasing the concentration of radioisotopes.
    In addition to minimizing LLRW, licensees can decide to store this 
waste when no disposal option is available to them. In order to obtain 
a license to possess radioactive materials, entities must demonstrate 
the technical capability to safely manage them. These entities give 
various reasons for storing waste, including allowing short-lived 
radioactive materials to decay to innocuous levels to avoid the need 
for disposal in a more expensive LLRW facility, the prohibitively high 
cost of disposal for some licensees, and concerns about the potential 
liability of sending the waste to a disposal site. Universities and 
biomedical companies generally rely on storage for decay for their 
LLRW, although finding space within large research institutions in 
urban settings is more difficult. The high cost of LLRW disposal can 
also pose financial problems for some licensees. Over the last 25 
years, disposal costs have risen from $1 per cubic foot of LLRW to over 
$400 per cubic foot, with projections of well over $1,000 per cubic 
foot in the future. For some LLRW, the Barnwell disposal facility now 
charges $1,625 per cubic foot. These disposal costs can reach hundreds 
of millions of dollars for utility companies that are decommissioning 
their nuclear power plants. NRC reported to us that the cost to fully 
decommission a plant could run as high as $675 million. Finally, some 
licensees will not send their LLRW to disposal facilities because they 
are concerned that the mixing of their waste with other waste might 
draw them into litigation if the disposal site should ever require 
cleanup under the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980, as amended (commonly referred to as 
Superfund).
    While NRC policy favors disposal rather than storage over the long-
term, since the mid 1990s the Commission has allowed on-site storage of 
LLRW without a specified time limit as long as it is safe. The 
Commission took this approach in part because LLRW can be stored and 
the states were not developing any new disposal facilities. NRC's and 
Agreement States' (that is, states that have taken over the 
responsibility for regulating radioactive materials from NRC) license 
and inspection programs help ensure the safe management of stored LLRW. 
However, some licensees are concerned that a fire, flood, or earthquake 
might cause an unintended radioactive release. If an emergency ever 
should arise from stored LLRW, NRC has authority under the Act to 
override any compact restrictions to allow shipment of LLRW to a 
regional or other nonfederal disposal facility, if necessary under 
narrowly defined conditions, and to eliminate an immediate and serious 
threat to the public health and safety or to the common defense and 
security. Since September 11, 2001, the perception of the risks posed 
by potential use of stored LLRW by terrorists has increased. A recent 
report found that at least a few radioisotopes of greatest security 
concern are classified as LLRW. According to the report, while 
radiological dispersal devices, such as a dirty bomb, are not weapons 
of mass destruction, they could cause mass disruption, dislocation, and 
adverse financial consequences associated with decontamination and 
rebuilding. NRC officials told us that as the volume and duration of 
stored LLRW increases so might the safety and security risks.

LLRW Minimization and Storage Can Be Costly
    Waste minimization and storage can alleviate the need for disposal, 
but they can be costly. The licensees that we interviewed provided many 
instances of the high cost of managing LLRW. For example, one 
university recently built a $12 million combined hazardous and 
radioactive waste management facility, of which two-thirds is devoted 
to processing and temporarily storing class A waste. A medical center 
official took us to a small (12,  12,) LLRW interim storage 
and processing room that cost the institution about $150,000 to 
construct to meet stringent health and environmental standards. Costs 
are also associated with operating storage facilities. Representatives 
from one university system told us that the system spends about 
$100,000 annually to maintain its interim storage building in a remote 
area of the state. Added to the cost of building and operating a 
storage facility is the cost of securing it. Such costs have been 
accounted for in higher utility rates, university overhead charges, 
drug prices, and medical treatments. These costs of doing business are 
more difficult for some entities to absorb than others. Representatives 
from several biotechnology companies told us that the industry, 
particularly the smaller start-up companies, are not prepared for the 
financial cost of storing and securing LLRW.

No Other Widespread Effects Detected of Shortfall in LLRW Disposal 
        Availability
    Notwithstanding the cost of minimizing and storing LLRW, we did not 
detect widespread national impacts on LLRW generators that have 
resulted or might result from any disposal shortfalls. In a survey we 
administered to compact and unaffiliated state LLRW officials regarding 
documented effects on LLRW generators of any restricted disposal 
availability, the officials raised few concerns. We then sought 
information from a broader constituency to determine whether any 
problems were occurring. We collaborated with medical researchers at 
the University of Texas to seek information from two overlapping groups 
involved in LLRW management: the approximately 2,000 subscribers of the 
RadSafe Listserv, a listserv for radiation safety officers, and the 
approximately 6,000 members of the Health Physics Society, a scientific 
and professional organization whose members specialize in occupational 
and environmental radiation safety. We sought information on any known 
cases where there have been or might be adverse effects on research 
activities and clinical practice stemming from costs or difficulties 
related to the storage and disposal of LLRW. Specifically, we e-mailed 
questionnaires asking if these factors have caused or might cause a 
discontinuance or disapproval of any research or clinical endeavors to 
RadSafe listserv subscribers and placed a notice in the Health Physics 
Society's newsletter asking for volunteers to answer the same questions 
we sent to the listserv subscribers. We obtained an extremely low 
response rate to these questionnaires--14 responses from listserv 
subscribers and 6 from Health Physics Society members. Because these 
were a nonprobability sample surveys, the results are not generalizable 
and can only be used for anecdotal purposes. Of these respondents, only 
two said that the difficulties associated with LLRW had adversely 
affected research or clinical practice. Several respondents cited the 
challenges of dealing with LLRW but also noted that they work around 
the difficulties through waste minimization, including substituting 
nonradioactive materials for radioactive materials when possible, and 
on site storage as needed. The survey results provided no evidence of 
any widespread effects on research activities and clinical practice 
stemming from costs or difficulties related to the storage and disposal 
of LLRW in the last 5 years. Other published information was largely 
consistent with our findings.
    Owing to the uncertainties regarding future disposal availability 
and the safety and security of storing waste, our report suggested that 
the Congress may wish to consider directing NRC to report to it if LLRW 
disposal and storage conditions should change enough to warrant 
consideration of new legislation to improve the reliability and cost 
effectiveness of disposal availability.

            THE ACT HAS NOT ACCOMPLISHED GOAL OF PROVIDING 
                     MORE REGION DISPOSAL CAPACITY

    The Act has not effectively facilitated the development of 
additional regional disposal capacity for class A, B, and C wastes. 
Although a nuclear industry association estimates that expenditures may 
now have reached approximately $1 billion on various facility 
development efforts, only one new commercial LLRW disposal facility has 
been developed since passage of the Act--the Envirocare facility--and 
this facility was not developed at the instigation of the compact in 
which it operates. As we reported in 2004, the conditions dampening any 
impetus to developing new disposal facilities for class A, B and C 
wastes have not changed since 1999. These conditions include a 
combination of factors: significant decreases in commercial LLRW 
generation, available capacity at the three existing facilities to meet 
national disposal needs, and rising costs of developing disposal 
facilities. Developing new LLRW disposal facilities also encountered 
public and political resistance in states designated to host these 
facilities.

   DOE HAS NOT PROVIDED A DISPOSAL FACILITY FOR GREATER-THAN-CLASS-C 
                                WASTE, 
                    BUT IS COLLECTING THIS MATERIAL

    In our April 2003 report, we provided information on DOE's efforts 
to recover and dispose of greater-than-class-C sealed radioactive 
sources. As you know, since September 11, 2001, there has been a great 
deal of concern about the control of sealed sources containing 
radioactive material that are used in medicine, agriculture, research, 
and industry throughout the United States. The radioactive material in 
these sources is encapsulated, or sealed, in metal--such as stainless 
steel, titanium, or platinum--to prevent its dispersal. The small size 
and portability of the sealed sources make them susceptible to misuse, 
improper disposal, and theft. If these sealed sources fell into the 
hands of terrorists, they could be used as simple and crude but 
potentially dangerous radiological weapons, commonly called dirty 
bombs.
    Certain sealed sources are considered particularly attractive for 
potential use in dirty bombs because, among other things, they contain 
more concentrated amounts of radioactive material such as americium-
241, cesium-137, plutonium-238, plutonium-239, and strontium-90. 
Applications of greater-than-class-C sealed sources include portable 
and fixed gauges used by the construction industry for testing the 
moisture content of soil, medical pacemakers, medical diagnostics and 
treatments, gauges used for petroleum exploration, and government and 
private research and development. While a study by the Idaho National 
Engineering Laboratory estimates that there currently could be about 
250,000 to 500,000 greater-than-class-C sealed sources in the United 
States, the actual number of greater-than-class-C sealed sources that 
are no longer wanted is not known because no one kept track of this 
information.
    The Low-Level Radioactive Waste Policy Amendments Act of 1985\8\ 
requires DOE to provide a facility for disposing of all greater-than-
class-C radioactive waste, including greater-than-class-C sealed 
sources that are no longer wanted by their owners. A permanent disposal 
facility has not yet been developed, but in the interim, DOE created 
the Off-Site Source Recovery Project that, since fiscal year 1999, has 
been recovering unwanted greater-than-class-C sealed sources from their 
owners and temporarily storing them at the Los Alamos National 
Laboratory in New Mexico. NNSA officials told us that, to date, the 
project has recovered over 10,000 sealed sources.
---------------------------------------------------------------------------
    \8\ Pub. L. No. 99-240.
---------------------------------------------------------------------------
    In April 2003, we reported that DOE's Off-Site Source Recovery 
Project faced three problems that could hinder future recovery efforts. 
First, we reported that DOE's Office of Environmental Management, which 
was responsible for the Off-Site Source Recovery Project at the time of 
our report, had a questionable long-term commitment to the project. The 
project did not receive full funding because of other higher-priority 
projects, and officials from the Office of Environmental Management 
told us that they would have liked responsibility for the project to be 
placed in another DOE office because of inconsistencies between the 
mission of the project and the main mission of the Office of 
Environmental Management to accelerate the cleanup and closure of 
contaminated DOE weapons development facilities.
    Second, we reported that the Off-Site Source Recovery Project was 
unable to recover any additional sealed sources containing plutonium-
239 (which, in sufficient quantity, could be used to fabricate a crude 
nuclear weapon) because there was no more space at the Los Alamos 
National Laboratory that met DOE's security standards for storing these 
sources. As a result, about 150 holders (mostly universities) of over 
400 unwanted sources containing plutonium-239 were forced to retain 
them and keep them properly secured until space became available. In 
some instances, sealed sources at these facilities were stored in 
unlocked and open rooms, and most holders expressed their desire to 
dispose of the sources as quickly as possible. In addition to 
plutonium-239, at the time of our report, DOE had not approved a means 
for temporarily storing sources containing strontium-90 and cesium-137.
    Finally, we reported that, as of February 2003, DOE's Office of 
Environmental Management had not made progress toward providing for the 
permanent disposal of greater-than-class-C radioactive waste, and it 
was unlikely to provide such a facility by fiscal year 2007 as it had 
planned because it is not a priority within the office. Specifically, 
the office had not begun the first step in developing a disposal 
facility--completing an appropriate analysis as required by the 
National Environmental Policy Act of 1969 and its implementing 
regulations. Such an analysis would likely take the form of an 
Environmental Impact Statement. Officials from DOE's Office of 
Environmental Management told us that funding had been provided in 
fiscal years 2002 and 2003 to conduct an environmental analysis, but 
these funds had been reallocated to other priorities.
    Our April 2003 report recommended that DOE determine whether the 
priority given to the Off-Site Source Recovery Project was commensurate 
with the threat posed by greater-than-class-C sealed sources and ensure 
that adequate resources are devoted to the project to cover the costs 
of recovering and storing these sealed sources as quickly as possible. 
In addition, we recommended that DOE take immediate action to provide 
secure storage space for unwanted sealed sources containing plutonium-
239, strontium-90, and cesium-137. Furthermore, we recommended that DOE 
initiate the process to develop a permanent disposal facility for 
greater-than-class-C radioactive waste as required by the LLRW Policy 
Amendments Act and develop a plan to ensure the continued recovery and 
storage of greater-than-class-C sealed sources until such a disposal 
facility is available.
    DOE has made progress addressing the problems we identified. 
Specifically, to address the problem of the low priority given to the 
Off-Site Source Recovery Project within the Office of Environmental 
Management, DOE transferred the project to NNSA in October 2003. Now 
renamed the U.S. Radiological Threat Reduction Program, the project is 
managed by NNSA's Office of Global Radiological Threat Reduction and is 
part of NNSA's larger efforts to secure potential dirty bomb material 
worldwide. The project has also experienced funding increases following 
the transfer. According to NNSA officials, the project was appropriated 
nearly $2 million in fiscal year 2004 and received an additional $3.5 
million that was transferred by the Secretary of Energy from the Office 
of Environmental Management. In addition, the project completed 
spending from an additional $10 million that the Congress appropriated 
in August 2002 as part of the 2002 Supplemental Appropriations Act for 
Further Recovery from and Response to Terrorist Attacks on the United 
States.\9\ In total, the project spent about $8 million in fiscal year 
2004. In our view, funding for this effort must be sustained for the 
foreseeable future to continue progress in the recovery of material 
that potentially could be fabricated into dirty bombs.
---------------------------------------------------------------------------
    \9\ Pub. L. No. 107-206.
---------------------------------------------------------------------------
    With regard to the continued recovery of sealed sources containing 
plutonium-239, NNSA completed the security requirements for accepting 
additional plutonium-239 at Los Alamos National Laboratory. NNSA 
officials also told us that additional storage capacity has become 
available at the Nevada Test Site for additional plutonium-239 storage. 
The project began recovering plutonium-239 sources in November 2003. As 
of September 2004, the project has recovered over 260 sources 
containing plutonium-239. Although the project estimated at the time of 
our report that there were over 400 unwanted plutonium-239 sources, 
NNSA officials told us that about 400 additional excess sources have 
been identified that will be recovered. Recovered sources are stored at 
Los Alamos National Laboratory and the Nevada Test Site until they are 
eventually shipped to the Waste Isolation Pilot Plant in Carlsbad, New 
Mexico, for permanent disposal. According to an NNSA official, these 
shipments are due to begin in April 2005.
    According to NNSA officials, the project started recovery of large 
strontium-90 sources in February 2004 and has recovered four of the six 
known large strontium-90 sources in the United States. The project 
plans to recover the remaining two large strontium-90 sources in fiscal 
year 2005. For cesium-137 sources, NNSA officials told us that they are 
currently working to find commercial partners to leverage existing 
disposal and recycling options for this material and to securely store 
cesium-137 sources in the interim.
    Finally, in response to our recommendation that DOE initiate the 
process to develop a permanent disposal facility for greater-than-
class-C radioactive waste, DOE transferred the responsibility for 
developing the environmental analysis from the Office of Environmental 
Management to DOE's Office of Environment, Safety, and Health. DOE 
plans to publish an Advance Notice of Intent to prepare an 
Environmental Impact Statement. This Environmental Impact Statement 
will evaluate disposal options and other considerations. However, DOE 
has been unable to tell us when the Advance Notice of Intent will be 
published or when DOE expects to complete the Environmental Impact 
Statement.
    Mr. Chairman, this concludes my prepared statement. I would be 
happy to respond to any questions that you or Members of the Committee 
may have.

    The Chairman. Thank you very much.
    Mr. Pasternak, would you proceed.

    STATEMENT OF ALAN PASTERNAK, PH.D., TECHNICAL DIRECTOR, 
       CALIFORNIA RADIOACTIVE MATERIALS MANAGEMENT FORUM

    Mr. Pasternak. Thank you, Mr. Chairman, Mr. Craig, Senator 
Craig. I appreciate the opportunity to be here today. This 
hearing is very timely.
    I would like to take a moment to thank the members of this 
committee and former members of this committee for their 
efforts on behalf of the California proposed facility at Ward 
Valley over a number of years between 1993 and 1999, when 
transfer of that land to the State of California was held up by 
the administration and the Interior Department. Certainly, 
Senator Domenici, your speech at Harvard in 1997 I thought was 
right on point.
    Going back to Senator Bennett Johnston and Senator Frank 
Murkowski, efforts by the former chairmen are much appreciated, 
Senator Craig's efforts, also those of Senator Kyl and Senator 
Feinstein, to get the Interior Department to move during that 
period of time.
    The national picture as we see it is this. Disposal 
capacity for low-level radioactive waste is limited and 
dwindling. On the Nation's present course, by July 1, 2008, 
public and private organizations and most government agencies 
that use radioactive materials from 34 to 36 States, the 
District of Columbia, and Puerto Rico will have no place to 
dispose of their more radioactive categories of low-level 
radioactive waste, categories B and C. In this business, July 
1, 2008, is tomorrow. It takes a long time to develop a new 
disposal facility.
    Also at that time, July 1, 2008, only one facility will 
have monopoly control over disposal of the most voluminous and 
least radioactive category of low-level waste from these 
States. That of course is the Envirocare facility, which does 
not take sealed sources and does not take biological wastes, 
which is a serious concern to the biotech industry and it is I 
think one of the points unfortunately that the General 
Accounting Office missed.
    In addition, we are not so optimistic about the present 
situation. Capacity at Barnwell is diminishing. There is a 
table at the end of my written testimony provided by the State 
of South Carolina which shows that in fiscal 2007 and fiscal 
2008, years in which there are caps of 40 and 35,000 cubic feet 
respectively, the remaining capacity is under 9,600 cubic feet 
because of commitments already made and the Atlanta Compact 
set-aside. So space at Barnwell is already tight.
    Cal Rad Forum, an association of radioactive material users 
in the four Southwestern Compact States--California, Arizona, 
and the Dakotas--has long been a supporter of the Policy Act. 
It was designed to stimulate development of new facilities by 
encouraging States to form interstate compacts for disposal on 
a regional basis. In this way it was hoped that a few States 
would not bear the perceived burden of performing this service 
for the entire country.
    Indeed, the Policy Act was in response to threats from the 
States of Washington, Nevada, and South Carolina in 1979 to 
close their disposal facilities. However, in the 24 years since 
enactment of the Policy Act no new facilities consistent with 
the requirements of the act, that is fully licensed to dispose 
of waste classes A, B, and C, have been developed. The Utah 
facility, as I mentioned, is licensed to receive only a subset 
of class A wastes, the least radioactive category. It does not 
accept sealed sources or biological wastes.
    With the exception of the State of Texas, all State 
programs for development of new disposal facilities in the 
United States have stopped. In fact, in the 24 years the only 
State to ever issue a license was California, a fact that we 
take some pride in. Cal Rad forum sponsored the siting 
legislation. We supported the compact legislation. We defended 
the license in court.
    But we were disappointed that the Clinton administration 
would not transfer the Federal land at Ward Valley to the State 
of California, and of course more recently in 2002 action by 
the legislature and ex-Governor Davis is what caused us to 
change our position concerning the Low-Level Waste Policy Act. 
The legislature, at the urging of Governor Davis, passed a law 
saying California is not going to build a Ward Valley, a 
facility at Ward Valley.
    We have some recommended actions that the Congress might 
consider to resolve the problem. We would hope that the basis, 
the record, the 24 years of noncompliance, would encourage the 
Congress to take action to resolve the problem.
    In the near term, the use of the Department of Energy's own 
disposal facilities for this purpose might find support in the 
conclusions of a DOE inspector general's report in 2001 that 
the Department of Energy's disposal facilities are 
underutilized. The report found that DOE's Nevada and Hanford 
facilities are being used at less than 50 percent capacity.
    A long-term national solution might include congressional 
authorization for the development and operation of one or two 
low-level radioactive waste disposal facilities, possibly by 
the Department of Energy or by a commercial developer, on 
Federal land under direct regulation by the U.S. Nuclear 
Regulatory Commission.
    At this point I want to say that we do not advocate repeal 
of the act. We advocate its amendment. The States of South 
Carolina and Washington have fulfilled their responsibilities 
under the act. Should their ability to continue to restrict 
access from outside their compacts, outside the Northwest, the 
Rocky Mountain, the Atlantic Compact, be eliminated, those 
States might choose to close those facilities. We are not in 
support of repeal, but we are in support of amendment. Those 
States should be allowed, and compacts, those States and 
compacts should be allowed to continue to operate as they have 
under the act, and any other State that is serious about 
pursuing development of a facility under the terms of the act 
ought to be able to do so.
    We fully support the NRC's regulations at title 10 CFR, 10 
CFR 61. Those regulations have proved very good and enhance 
safety and they have solved the problems that have existed in 
the past.
    I would like to mention briefly four concerns we have about 
the General Accounting Office report. We have a greater sense 
of urgency about this issue in both the near term and the long 
term than we found in the report. I mentioned the fact that 
Envirocare does not accept sealed sources or biological waste. 
There is another problem. The Federal Government, the 
Department of Energy, and in particular the Navy, the nuclear 
Navy, does depend on commercial facilities. After July 1, 2008, 
Norfolk Naval Shipyard will not be able to send radioactive 
waste to Barnwell. This is a problem and I think it is a point 
that the GAO missed, although in my conversation with Mr. 
Feehan I understand that they understand that.
    We are concerned about the speculation in the GAO report 
that this thing might happen or that thing might happen. Maybe 
Envirocare will be licensed to accept B and C wastes. But in 
May of this year a legislative task force in the State of Utah 
already recommended against the legislature's acceptance of B 
and C wastes at Envirocare. A final report will be developed by 
this November.
    Finally, we do not view storage as a panacea, as an option 
in place of disposal. NRC policies encourage disposal of waste 
and not indefinite storage. Furthermore, in the case of a 
business, a company, a biotech company for example, that wants 
to terminate its license, that wants to move on to a larger 
facility and terminate its license at the old facility, storage 
is obviously not a solution. They have to clear the site of all 
radioactive waste.
    Finally, I would invite the committee's attention to the 
comments of the U.S. Nuclear Regulatory Commission in the GAO 
report These comments I felt for a regulatory agency which is 
often reluctant to get involved in a policy issue, these were 
very, very strong comments. The agency says: ``It is now time 
for GAO to explore alternatives further because the future 
availability of disposal capacity and the costs of disposal 
under the current system remain highly uncertain and low-level 
waste generators need predictability and stability in the 
national disposal system.''
    They point to the fact that nearly 20 years of experience 
under the act has demonstrated the difficulties in siting and 
licensing a facility. Not one new facility has developed in 
this time under the act.
    Therefore, we believe it is in the national interest to 
begin exploring the alternatives that would potentially provide 
a better legal and policy framework for new disposal facilities 
for commercial generators of low-level radioactive wastes.
    Mr. Chairman and Mr. Craig, I would be happy to respond to 
any questions you might have.
    [The prepared statement of Mr. Pasternak follows:]

   Prepared Statement of Alan Pasternak, Ph.D., Technical Director, 
           California Radioactive Materials Management Forum

                          THE NATIONAL PICTURE

    Disposal capacity for low-level radioactive waste is limited and 
dwindling. On the nation's present course, by July 2008, public and 
private organizations and most government agencies that use radioactive 
materials in thirty-four to thirty-six states, the District of 
Columbia, and Puerto Rico will have no place to dispose of their more 
radioactive categories of low-level radioactive waste. Also at that 
time, one facility will have monopoly control over disposal of the most 
voluminous (and least radioactive) category of low-level waste from 
these states.
    Cal Rad Forum believes it appropriate for Congress to revisit the 
Low-Level Radioactive Waste Policy Act and fashion a solution that 
assures all users of radioactive materials in the U.S. access to safe 
disposal facilities.
    Today, only three facilities in the U.S. accept so-called 
``commercial'' low-level radioactive waste (LLRW) for permanent 
disposal. Two of these facilities are fully licensed; one is not. 
Organizations that rely completely on these disposal facilities include 
universities, utilities with nuclear power plants, industries including 
biotech and pharmaceutical companies, medical centers, and state and 
federal agencies not including the U.S. Department of Energy or its 
laboratories. (DOE uses one of these facilities--Envirocare of Utah--
and also operates its own disposal facilities.) These disposal 
facilities are in the states of Washington, South Carolina, and Utah. 
Disposal capacity is limited despite Congress' intent in enacting the 
Low-Level Radioactive Waste Policy Act in 1980 (Public Law 96-573) and 
the Amendments Act of 1985 (Public Law 99-240). The Policy Act was 
designed to stimulate development of new facilities by encouraging 
states to form interstate compacts for disposal on a regional basis. In 
this way, it was hoped that a few states would not bear the ``burden'' 
of performing this service for the entire country. Indeed, the Policy 
Act was in response to threats from the States of Washing-ton, Nevada, 
and South Carolina in 1979 to close their disposal facilities. However, 
in the twenty-four years since enactment of the Policy Act, no new 
facilities, consistent with the requirements of the Act, i.e., fully-
licensed to dispose of waste classes A, B, and C, have been developed. 
The Utah facility is licensed to receive only a subset of Class A 
waste, the least radioactive category of LLRW, and was created and 
operates outside of the compact system.
What is low-level radioactive waste?
    The statutory definition of low-level radioactive waste is set 
forth in Section 2 (Definitions), Title I--Low-Level Radioactive Waste 
Policy Amendments Act of 1985, Public Law 99-240--Jan. 15, 1986 (Act):

    ``(9) Low-level radioactive waste.--The term `low-level radioactive 
waste' means radioactive material that
    ``(A) is not high-level radioactive waste, spent nuclear fuel, or 
byproduct material (as defined in section 11e.(2) of the Atomic Energy 
Act of 1954 (42 U.S.C. 2014(e)(2))); and
    ``(B) the Nuclear Regulatory Commission, consistent with existing 
law and in accordance with paragraph (A), classifies as low-level 
radioactive waste.''

    LLRW is waste generated by the use of radioactive materials in 
industrial, academic, research, medical, and governmental activities, 
nuclear power generation, and facility and site decontamination. LLRW 
consists of radioactively contaminated clothing, tools, laboratory 
equipment, machinery, filters from nuclear power plants, rubble and 
dirt, etc.
What is disposal?
    ``(7) Disposal.--The term. `disposal' means the permanent isolation 
of low-level radioactive waste pursuant to the requirements established 
by the Nuclear Regulatory Commission under applicable laws, or by an 
agreement State if such isolation occurs in such agreement State.''--
P.L. 99-240, Section 2 (Definitions).
What are state and federal responsibilities for disposal of low-level 
        radioactive waste?
    State and federal responsibilities for disposal of LLRW are set 
forth in Section 3 of the Act:

    ``Section 3(a)(1) State Responsibilities. [Quoted in part]--Each 
State shall be responsible for providing, either by itself or in 
cooperation with other States, for the disposal of
    ``(A) low-level radioactive waste generated within the State (other 
than by the Federal Government) that consists of or contains class A, 
B, or C radioactive waste as defined by section 61.55 of title 10, Code 
of Federal Regulations, as in effect on January 26, 1983;
    ``(B) low-level radioactive waste described in subparagraph (A) 
that is generated by the Federal Government except such waste that is--
--
    ``(i) owned or generated by the Department of Energy;
    ``(ii) owned or generated by the United States Navy as a result of 
the decommissioning of vessels of the United States Navy; or
    ``(iii) owned or generated as a result of any research, 
development, testing, or production of any atomic weapon; and
    ``(C) low-level radioactive waste described in subparagraphs (A) 
and (B) that is generated outside of the State and accepted for 
disposal in accordance with sections 5 or 6.''

    Section 3 goes on to describe federal disposal responsibilities in 
Section 3(b)(1). These include greater than Class C low-level waste, 
low-level waste owned or generated by the Department of Energy, waste 
owned or generated by the United States Navy as the result of de-
commissioning of vessels of the United States Navy, and low-level waste 
owned or generated by the Federal Government as a result of any 
research, development, testing, or production of any atomic weapon.
    It should be noted that in addition to its statutory 
responsibilities the federal government, through the Department of 
Energy's Off-Site Source Recovery Program at the Los Alamos National 
Laboratory, has taken on the responsibility to collect and safeguard 
sealed radioactive sources that would otherwise be orphaned.
Today's situation for disposal of low-level radioactive waste: 
        Barnwell, South Carolina; Richland, Washington; and Envirocare 
        of Utah (Clive, Utah).
    1) The low-level radioactive waste disposal facility at Barnwell, 
South Carolina\1\ is the regional disposal facility for the Atlantic 
Compact. On July 1, 2008, use of the South Carolina disposal facility 
will be restricted to the three member states of that Compact: South 
Carolina, New Jersey, and Connecticut. South Carolina law also 
establishes annually decreasing limits on waste volumes that can be 
accepted for disposal prior to July 1, 2008. (Please see chart on page 
7.) The South Carolina Senate recently rejected a proposal to raise the 
volume cap for fiscal year 2004-2005 by 100,000 cubic feet of Class A 
waste in exchange for a payment of $6 million by the facility operator.
---------------------------------------------------------------------------
    \1\ Operated by the Chem Nuclear subsidiary of GTS Duratek and 
regulated by the State of South Carolina which is an Agreement State.
---------------------------------------------------------------------------
    Today, in addition to the three states of the Atlantic Compact, 
users of radioactive materials in thirty-six states which are not 
members of the Northwest, Rocky Mountain, or Atlantic Compacts rely on 
Barnwell as the only facility where they can dispose of their Class B 
and Class C (more radioactive) wastes. The low-level wastes sent to 
Barnwell from these thirty-six states account for 93% of the 
radioactivity (measured in curies) disposed of by users of radioactive 
materials in all states at all three disposal facilities.\2\
---------------------------------------------------------------------------
    \2\ Manifest Information Management System /
mims.apps.em.doe.gov>. Figures are for FY 2003, 7/1/02 to 6/30/03.
---------------------------------------------------------------------------
    2) The Richland, Washington facility\3\ is the regional disposal 
facility for the Northwest Compact. In 1993, under provisions of the 
Act, use of this facility was restricted to the eight member states of 
the Northwest Compact, and, subsequently, by contract, the three states 
of the Rocky Mountain Compact were granted access.
---------------------------------------------------------------------------
    \3\ Operated by US Ecology, Inc. and regulated by the State of 
Washington which is an Agreement State under the Atomic Energy Act.
---------------------------------------------------------------------------
    3) The disposal facility at Clive, Utah\4\ accepts only a subset of 
Class A waste, the least radio-active category, from all states except 
those in the Northwest and Rocky Mountain Compacts. This facility is 
not licensed to dispose of sealed sources or biological tissue waste. A 
proposal to expand the license to include waste Classes B and C was put 
on hold in 2001 when it failed to gain the approval of the Governor and 
Legislature as required by Utah law. A legislative Task Force is 
considering the Class B and C disposal issue. On May 18, 2004, the Task 
Force made a preliminary recommendation against Utah's acceptance of 
Class B and C waste. A final recommendation is expected in November 
2004.
---------------------------------------------------------------------------
    \4\ Operated by Envirocare of Utah and regulated by the State of 
Utah, which is an Agreement State.
---------------------------------------------------------------------------
With the exception of Texas, all state programs for development of new 
        disposal facilities in the U.S. have stopped.
    In 24 years, the states have not demonstrated the political will 
necessary to implement the Policy Act and develop new disposal 
facilities. Since enactment of the federal Policy Act, only one state 
has issued a full license (waste Classes A. B. and C) for a new 
disposal facility. In 1993, The California Department of Health 
Services (California's Agreement State Agency) issued a license for a 
disposal facility at a remote location on federal land in the Mojave 
Desert called Ward Valley. The facility has never been built. Ward 
Valley was intended as the regional disposal facility for the 
Southwestern Compact (Host State California, Arizona, North Dakota, and 
South Dakota). On September 12, 2002, California Governor Gray Davis 
signed into law a prohibition on the development of the Ward Valley 
regional LLRW disposal facility.

Summary of the national low-level radioactive waste disposal problem:
    Beginning July 1, 2008, when use of the South Carolina facility is 
restricted to the Atlantic Compact, organizations that use radioactive 
materials in the District of Columbia, Puerto Rico, and at least 
thirty-four, and possibly thirty-six states, which are not members of 
the Northwest, Rocky Mountain, or Atlantic Compacts will have no place 
to dispose of their Class B and C low-level waste. These are the more 
radioactive categories of low-level waste whose disposal is a state 
responsibility. At that time, only the Utah facility will accept a 
subset of their Class A low-level waste--not including biological 
tissue wastes or sealed sources. While about 97% of the low-level waste 
volume from these thirty-six states goes to Utah, the remaining 3%, by 
volume, currently disposed of at Barnwell, contains over 99% of the 
radioactivity from these states.
    Even prior to July 1, 2008, space at the Barnwell disposal facility 
will be very limited, especially in fiscal years 2007 and 2008 as shown 
in the chart on page 7. (See ``Remainder'' entries after allowing for 
the ``Committed'' volumes and the Atlantic Compact ``Set asides.'') 
This is due to the declining statutory volume caps.

Litigation against compact Host States
    Failure by Compact Host States to fulfill their obligations to 
develop regional disposal facilities has resulted in two lawsuits by 
Compact Commissions and one by a facility development company.
    The Central Interstate Compact Commission sued Host State Nebraska 
alleging bad faith and political manipulation of the State's regulatory 
decision to reject a license application to develop a disposal facility 
in Boyd County. The Commission asked for recovery of monetary damages 
and appointment of a special master to complete the review of the 
license application. The U.S. Supreme Court rejected Nebraska's attempt 
to seek refuge in the doctrine of sovereign immunity. At trial, the 
federal District Court in Nebraska found against the State and awarded 
the Commission $151 million. However, the judge declined to involve the 
court in an attempt to complete the proposed disposal project as 
requested by the Compact Commission. Nebraska appealed the damages 
award, however the Circuit Court of Appeals upheld the trial court's 
judgment including a finding of ``bad faith.'' The State of Nebraska 
and the Central Inter-state Compact Commission recently settled the 
suit for $141 million. Evidently, Nebraska would rather forfeit $141 
million than build a disposal facility.
    In May 2002, the States of Alabama, Florida, Tennessee, and 
Virginia joined the Southeast Compact Commission in a lawsuit against 
Host State North Carolina for its failure to develop a disposal 
facility. The Supreme Court has taken original jurisdiction of this 
lawsuit.
    In May 2000, the State of California's licensee for development and 
operation of a low-level waste disposal facility sued the State seeking 
recovery of monetary damages. Trial was earlier this year, and the 
trial court denied the claim. The court declined to reconsider its 
decision, and the licensee filed a notice of appeal to the State 
Appellate Court.
    None of the lawsuits described above is likely to lead to 
development of a new disposal facility.

Recommended action to avoid the coming crisis in low-level waste 
        disposal: Amend the Policy Act to provide a role for the 
        federal government in assuring availability of safe disposal 
        capacity for low-level radioactive waste.
    In 24 years, the Low-Level Radioactive Waste Policy Act has yielded 
10 interstate compact commissions, three lawsuits, and no new disposal 
facilities. Based on the states' track record, Congress and the 
Administration might reasonably conclude that the states have failed to 
provide the necessary disposal infrastructure and are unlikely to do 
so.\5\ Hopefully, a conclusion that the states won't do the job and 
that the nation does not need ten low-level waste disposal facilities 
would lead to a decision to amend (not repeal) the Act and that the 
federal government should assume responsibility for disposal of 
``commercial'' low-level radioactive waste--at least for those thirty-
six states not in compacts with existing regional disposal facilities, 
the District of Columbia, and Puerto Rico. Near-term use of the 
Department of Energy's own disposal facilities for this purpose might 
find support in the conclusions of a DOE Inspector General's report 
that the Department's disposal facilities are under-utilized.\6\ The 
report found that DOE's Nevada and Hanford facilities are being used at 
less than 50 percent capacity.
---------------------------------------------------------------------------
    \5\ See, for example, the Audit Report, ``National Low-Level Waste 
Management Program,'' DOE/IG-0462 by the U.S. Department of Energy, 
Office of Inspector General's Office of Audit Services, February 2000.
    \6\ ``Utilization of the Department's Low-Level Waste Disposal 
Facilities,'' DOE/IG-05-5, May 25, 2001. 5
---------------------------------------------------------------------------
    A long-term national solution might include Congressional 
authorization for the development and operation of one or two LLRW 
disposal facilities, possibly by the Department of Energy or commercial 
entities, on federal land, under direct regulation by the U.S. Nuclear 
Regulatory Commission.
    Although ten interstate compacts have received congressional 
consent, the nation does not need ten disposal facilities for LLRW. (In 
addition, seven states are not members of interstate compacts.) There 
never was an economic justification for the Policy Act. Regional equity 
was both the rationalization for the Act and an incentive to develop 
new disposal facilities. But this incentive (carrot) has not been 
sufficient to inspire the political will necessary to do the job. When 
the U.S. Supreme Court struck-down the ``Take Title'' provision, the 
Act lost its ``stick.'' Furthermore, volumes of commercial (non-DOE) 
LLRW have declined since 1980. Economics justifies a few disposal 
facilities each with large capacity rather than many facilities each 
with small capacity.
    The States of South Carolina and Washington have provided disposal 
capacity consistent with the requirements of the Policy Act and their 
compact obligations. Any amendment to the Act should allow these States 
and their compacts to continue to do so. As well, Texas or any other 
state that pursues development and operation of a disposal facility 
pursuant to the Act should also be able to do so.

                        SAFETY OF LLRW DISPOSAL

Comprehensive regulations of the U.S. Nuclear Regulatory Commission
    Disposal of LLRW has been carried out safely and justifies current 
and future use of near surface disposal pursuant to the NRC's 
regulations at title 10 part 61 of the Code of Federal Regulations. The 
still-operating disposal facilities at Barnwell, SC and Richland, WA 
have operated safely for many years. Such problems as have occurred at 
old facilities, e.g., migration of tritium due to disposal of liquid 
wastes at the Beatty, NV disposal facility which was closed in 1993, 
are addressed by the current regulations. These regulations, adopted in 
1982, are comprehensive. Among the issues addressed are disposal site 
selection criteria, facility design, waste classification, waste form 
and packaging (e.g., requirements for solidification of liquids), 
financial assurances, and long-term post-closure institutional 
controls.

The recent report by the U.S. General Accounting Office contains errors 
        and understates the urgency of the problem.
    A report by the U.S. General Accounting Office (``Low-Level 
Radioactive Waste: Disposal Availability Adequate in the Short Term, 
but Oversight Needed to Identify Any Future Short-falls,'' GAO-04-604, 
June 2004) understates the urgency of the LLRW disposal situation in 
both the short term (prior to July 1, 2008) and the long term. The 
report also contains significant errors. For example, the report fails 
to recognize that the Envirocare facility in Utah is not licensed to 
dispose of biological tissue waste. The report also misstates federal 
law by saying that States are not responsible for disposal of waste 
produced by the nuclear propulsion component of the Department of the 
Navy. Disposal of wastes owned or generated by the Department of Energy 
and from the decommissioning of naval vessels is a federal 
responsibility.\7\ But wastes from the Navy's operating fleet are 
disposed of at commercial facilities (e.g., Barnwell, SC). After July 
1, 2008, the Navy and other federal agencies, state governments along 
with commercial organizations and public institutions that generate 
radioactive waste outside of South Carolina, New Jersey and Connecticut 
will not be able to dispose of their radioactive waste at Barnwell, SC.
---------------------------------------------------------------------------
    \7\ See P.L. 99-240, Sections 3(a)(1) and 3(b)(1) as discussed on 
page 2 of this testimony.
---------------------------------------------------------------------------
    The GAO report speculates that various solutions to the LLRW 
disposal problem may develop without action by the Congress. For 
example, the report speculates that the Envirocare of Utah facility 
might be licensed to dispose of Class B and C wastes. But, last May, a 
task force of the Utah Legislature issued a preliminary recommendation 
against B and C disposal. (A final task force report is due in 
November.)
    Underlying the GAO report's conclusions is the mistaken belief that 
storage of wastes is an adequate alternative to disposal. While 
temporary storage of low-level waste can be and is being safely 
performed, only disposal is a permanent solution. Furthermore, in the 
case of de-commissioning of facilities where radioactive materials have 
been used, on-site storage is obviously not even a temporary option as 
the wastes must be removed from the site and safely disposed of. 
Facility decommissioning is a frequent occurrence, particularly in the 
industrial sector. NRC policy is that radioactive wastes should be 
disposed of and not stored indefinitely.

The need for Congress to revisit the Low-Level Radioactive Waste Policy 
        Act is urgent.
    Time is of the essence. July 1, 2008 and the end of disposal in 
South Carolina for LLRW from thirty-six states, the District of 
Columbia, and Puerto Rico are not far off. It took California thirteen 
years from enactment of enabling legislation in 1983 to issue the Ward 
Valley license (1993) and successfully defend the license and the 
Environmental Impact Report in State Courts (1996).
    Assurance that future disposal capacity will be available is vital. 
Lack of such assurance has already curtailed some uses of radioactive 
materials in research. In Cal Rad's view, the comments of the U.S. 
Nuclear Regulatory Commission on the GAO report (Appendix V of the 
Report) are on point and are probably the most valuable part of the 
report:

          ``The current report is a sequel to GAO's 1999 report, ``Low-
        Level Radioactive Wastes: States Are Not Developing Disposal 
        Facilities'' (GAO/RCED-99-238). That report concluded that none 
        of the States' or compacts' efforts to develop new disposal 
        capacity had been successful and the state efforts to do so had 
        ``essentially stopped.'' This earlier report also examined 
        alternatives to the current system for development of new 
        disposal capacity in the U.S., but did not recommend any of 
        them. Appendix II of the current report updates these alter-
        natives. We believe that it is now time for GAO to explore 
        these alternatives further because the future availability of 
        disposal capacity and the costs of disposal under the current 
        system remain highly uncertain and LLRW generators need 
        predictability and stability in the national disposal system. 
        We acknowledge that the potential approval for Envirocare to 
        accept Class B and C wastes and licensing of a LLRW disposal 
        facility in Texas could significantly improve the current LLRW 
        disposal system in the U.S. At the same time, the nearly 20 
        years of experience under the Low-Level Radioactive Waste 
        Policy Amendments Act of 1985 (LLRWPAA) has demonstrated the 
        difficulties in siting and licensing a LLRW facility. Not one 
        new facility has been developed in this time under the LLRWPAA. 
        Therefore, we believe it is in the national interest to begin 
        exploring the alternatives identified in Appendix II that would 
        potentially provide a better legal and policy framework for new 
        disposal facilities for commercial generators of LLRW.''

    The nation's low-level waste disposal infrastructure is inadequate 
and, without action by Congress, will become much worse. Beneficial 
uses of radioactive materials by industries, re-search and medical 
institutions, utilities and agencies of state and federal governments 
are jeopardized by the current and projected future inadequate disposal 
infrastructure. Lack of disposal capacity could stop or impede some 
research, medical, and industrial uses of radioactive materials and 
have a detrimental impact on the quality of life and health.

                                     BARNWELL VOLUME PROFILE--SEPTEMBER 2004
                                                  [Cubic Feet]
----------------------------------------------------------------------------------------------------------------
                                                   FY2005           FY2006           FY2007           FY2008
----------------------------------------------------------------------------------------------------------------
Site cap....................................           50,000           45,000           40,000           35,000
Committed...................................           23,600           23,600           22,400           22,300
Set asides..................................     8,000-11,000     8,000-11,000     8,000-11,000      5,000-9,000
Remainder...................................    15,000-18,400    10,400-13,400      6,600-9,600      3,700-7,700
----------------------------------------------------------------------------------------------------------------
 Source: State of South Carolina Budget and Control Board.

    Chairman. Thank you very much.
    Senator Craig, do you have any questions.
    Senator Craig. I do have one. Ms. Nazzaro, do you think it 
is a problem that DOE is sending more of its low-level wastes 
to commercial disposal sites like Envirocare in Utah?
    Ms. Nazzaro. DOE did account for a large portion of the 
class A waste. However, they are paying the costs that they 
have negotiated for this service.
    Senator Craig. Well, the problem in this context--are they 
using up sites that would be otherwise used by commercial 
generators?
    Ms. Nazzaro. No.
    Senator Craig. Are they using up capacity?
    Ms. Nazzaro. No.
    Senator Craig. OK.
    The Chairman. Thank you, Senator.
    Senator Craig. That is all I have now. Thank you.
    The Chairman. To any of you, but I want to start with GAO: 
Your 2004 report found that there should be no apparent problem 
with capacity to dispose of class A wastes for at least 20 
years as long as the Envirocare disposal facility remains in 
operation. The primary disposal concerns for the future is 
therefore the class B and C. How much of the waste is generated 
annually and by which type of generator? Should we be taking 
action today to avert a potential disposal crisis for B and C 
wastes by mid-2008, given the long lead time that is necessary 
to site, license, and open LLRW disposal facilities?
    Given the prevalence of low-level radioactive waste storage 
today, do we currently have a safety and security problem?
    Ms. Nazzaro. To address your first question as to how much 
of the waste is the B and C waste, 1 percent of the waste that 
was disposed of in 2003 is B and C waste and 99 percent of that 
went to Barnwell. In the last 5 years, 88 percent of the B and 
C waste that went to Barnwell came from utilities, which we 
feel has secure storage facilities. I myself visited some of 
the sites and saw adequate security of the storage facilities.
    Where there seems to be more of a concern is certainly in 
the academic and medical community, and as I stated earlier 
that only accounted for .5 percent or 800 cubic feet. On an 
annual basis that would be a small closet, like five by four by 
eight. So we are not talking a lot of waste.
    As to the issue on the security, at your direction, we are 
currently undertaking a study to look at the safety and 
security of stored waste. One of the issues is that we do not 
know how much stored waste there is and where that waste is.
    The Chairman. Well, I do not want to start a battle here 
between the GAO and the testimony of Mr. Pasternak, but I do 
want to say to you I have given up--I started addressing the 
GAO two main problems about 10 years ago, 12 years ago. After 3 
years I decided to let somebody else take it over, and that is 
the argument I had. They did.
    But the two issues we had then was: one, why should the GAO 
be making policy recommendations when that was not their charge 
under Congress's charter; the second one was whether they were 
really doing studies that were relevant and giving objective 
findings or whether they were doing studies that some 
Congressman or Senator wanted and coming up with remarks or 
comments that pleased that Congressman, either Senator or House 
member.
    To get the attention, we caused an effort around here to 
reduce the funding, which occurred. We were at that point 
amazed, incidentally, at the breadth of activity and where you 
were located. It turned out you were all over the world. But I 
want to tell you that I will review the concerns that you have 
about their studies and we will have our committee staff do 
that, because what we want are facts. We do not want the GAO 
telling us what the policy should be. We ought to get that from 
people who are involved in putting these things together, not 
the GAO, which is auditing.
    So I am not going to ask you to comment on that. If you 
feel compelled to, Ms. Nazzaro, I will let you.
    Ms. Nazzaro. All I will do is direct you to an appendix in 
our report that does talk about options. We did not want to go 
so far, as you say, to make a policy recommendation, but there 
are options in our report for the Congress to consider. We 
discussed retaining the compact legislation, to repeal the 
compact legislation, or to turn this responsibility over to the 
Department of Energy, and we present some pros and cons for 
each option.
    Our major concern with the Department of Energy is that 
there is a number of items that would need to be resolved 
before DOE could take on this responsibility. It is not clear 
whether DOE is authorized to take on that responsibility, who 
would be responsible for the disposal costs, would DOE keep the 
funds or would this money return to the Treasury, who would 
license or regulate such a facility, and would DOE be in 
competition with existing facilities. This could actually 
affect the viability of some commercial entities.
    We know there is excess capacity at some of the DOE 
facilities, particularly Hanford and the Nevada test site. 
However, these States have objected in the past to the 
disproportionate burden that has been placed on them or would 
be placed on them should such an action take effect.
    The Chairman. Mr. Pasternak, would you like to comment?
    Mr. Pasternak. Yes, I would, Mr. Chairman.
    We are mindful of the fact that Nevada and Washington have 
what is probably perceived to be an excessive burden in this 
area, which is one reason we suggest that the use of DOE 
facilities might be only a short-term solution. I believe there 
are DOE disposal facilities in other States as well and I 
cannot recall at the moment which States they are, so maybe 
they are worth looking at.
    The long-term solution again we suggest is for the 
development of a facility somewhere on Federal land, under 
direct regulation by the NRC, by the Federal Government. In our 
view this is really a matter of political will. The States have 
not demonstrated the political will. California had the 
political will for a while and lost it in the year 2000. I 
think it is a matter of political will.
    We do not need ten disposal facilities. We have ten 
compacts. We need B and C, we need additional B and C disposal. 
We need class A that can accept all kinds of class A, including 
sealed sources and biological tissue waste, which Envirocare 
will not accept now. As I think I mentioned, the fact that they 
cannot has already affected certain kinds of research.
    The Chairman. Thank you very much.
    I have about 12 additional questions. They are directed at 
each of you, two or three of them directed at GAO. I am going 
to put them in the record.
    I want to say that, even though these hearings are early, 
next year we intend to address it. We do not want to wait much 
longer. We have our own problem with will. You know, you have 
got to get started pretty early to develop the will on this.
    I would think that we do have a few more people up here 
that are not so afraid of these kind of issues. I like your 
suggestion. It is a practical one. We have a lot of public 
land. I am not talking about harming very desirable public land 
at all, nor are you. That is, not a wilderness, it is not 
beautiful areas. We have huge amounts of property that are just 
ordinary land right next to private land.
    Mr. Pasternak. If I might interject, Ward Valley was not 
pristine wilderness either. It is the site of a large 
substation and power lines. It was not pristine wilderness.
    The Chairman. Now, I am going to submit these questions for 
the record and I am going to ask, in terms of you, Mr. 
Pasternak and the GAO, I am very interested in getting 
assurance from you that as we work on the legislation that you 
will participate with us, including recommendations as to who 
we ought to ask to give us field observations about this.
    Mr. Pasternak. Absolutely. It would be a privilege to do 
so.
    The Chairman. And I think the sooner the better, because 
your Utah, what you talked about in Utah, Senator Craig and I 
were just talking about that and we do not want a preemptive 
situation where nobody is left, and that has occurred in the 
past.
    Senator Craig.
    Senator Craig. Mr. Chairman, let me certainly support what 
you have just suggested, because in your case, Mr. Pasternak, 
where you do not want to see repeal of the Low-Level Waste 
Policy Act for the States. Obviously, the development is not 
going forward. My question is ultimately what do we do. How do 
we cause this to be encouraged? I think you have made some 
proposals, and that is the dilemma we are going to face. We 
have an obvious issue out there that must get resolved.
    Thank you.
    The Chairman. I want to thank personally on our side Clint 
Williamson of our staff for all the time he spent on putting 
this together, and Jonathan Epstein on the minority side spent 
a lot of time. He is sitting right here. We want both of their 
names in the record as having spent a lot of time.
    This is not an issue for them that they wake up every 
morning saying: My, is it not wonderful I have this issue. It 
is a little bit difficult, and it is pretty far off. So I am 
sure they are doing this because they have been kind of ordered 
to. Nonetheless, you have to do some of those things around 
here.
    Thank you very much. We will continue on at a later date.
    [Whereupon, at 11:32 a.m., the hearing was adjourned.]

                               APPENDIXES

                              ----------                              

                               Appendix I

                   Responses to Additional Questions

                              ----------                              

                  Government Accountability Office,
                    Natural Resources and Environment Team,
                                  Washington, DC, October 22, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: I am pleased to respond to your letter of 
October 4, 2004, concerning questions submitted to the record for your 
Committee's September 30, 2004, hearing on low-level radioactive waste 
(LLRW). Your questions and our answers are below.
    This concludes our response to your questions and those of the 
other senators. If you desire further elaboration or clarification, 
please contact me at (202) 512-3841.
            Sincerely yours,
                                          Robin M. Nazzaro,
                                                          Director.
[Enclosures.]

                    Questions From Senator Domenici

    Question 1. Your June 2004 report found that there should be no 
apparent problem with capacity to dispose of class A waste for at least 
20 years, as long as the Envirocare disposal facility remains in 
operation. The primary disposal concern for the future is therefore 
with class B and C wastes.
    How much of this waste is generated annually and by which type of 
generator?
    Answer. No national data are available on the volume of LLRW 
produced annually. As we indicated in our June 2004 report,\1\ 
according to data provided by the three commercial LLRW disposal 
facility operators, disposal volumes of class B wastes declined 47 
percent, from about 23,500 cubic feet in 1999, to about 12,400 cubic 
feet in 2003. Class C wastes disposal volumes were more volatile, 
changing as much as 107 percent in a single year. The total annual 
disposal volume of class C waste alternatively rose and fell between 
1999 and 2003, with the annual total reaching over 20,000 cubic feet in 
1999, falling as low as about 11,000 cubic feet in 2002, then rising 
over 23,000 cubic feet in 2003. Our analysis using MIMS data between 
1999 and 2003 indicated that about 88 percent of the commercially 
disposed class B and C wastes at Barnwell came from utilities. The 
remaining 12 percent of these wastes were distributed among the other 
generators: 0.5 percent was attributed to academic and medical, 2 
percent to government, and 9.5 percent to industry waste generators. As 
an illustration, the volume of disposed class B and C wastes from 
academic and medical generators averaged about 160 cubic feet per year, 
enough to fill only a 4,  5,  8, closet annually.
---------------------------------------------------------------------------
    \1\ GAO, Low-Level Radioactive Waste: Disposal Availability 
Adequate in the Short Term, but Oversight Needed to Identify Any Future 
Shortfalls, GAO-04-604 (Washington, D.C.: June 9, 2004).
---------------------------------------------------------------------------
    Question 2. Should we be taking actions today to avert a potential 
disposal crisis for class B and C wastes by mid-2008, given the long 
lead-time necessary to site, license, and open a new LLRW disposal 
facility?
    Answer. Even if most states do not have disposal access for their 
class B and C wastes after mid-2008, we found an immediate crisis would 
not occur because licensed users of radioactive materials can continue 
to minimize waste generation, process waste into safer forms, and store 
on-site waste pending the development of additional disposal options. 
However, disposal is still the preferred management approach for LLRW, 
and therefore a disposal option for class B and C waste must be 
available in the long-term. Our June 2004 report discussed four 
situations that might have implications for long-term disposal 
availability. What we currently know is that (1) South Carolina has not 
shown any shift in its decision to close the Barnwell disposal facility 
to non-compact member states by mid-2008; (2) the Utah legislative task 
force is expected to recommend that Envirocare not be approved to use 
its license to accept class B and C wastes, but the final decision 
rests with the Governor and legislature; (3) licensing the Texas 
disposal facility could occur as early as 2007, but Texas has not 
decided whether any non-compact states will be allowed to use this 
facility if it is opened; and (4) Nebraska and the Central Interstate 
Compact have settled their legal dispute, but uncertainties remain 
regarding the development of any new disposal facility.
    Although no shortfall in disposal availability appears imminent, 
uncertainties remain about future access to disposal facilities. Even 
with the prospect of new disposal options, there is no guarantee that 
they will be developed or be available to meet national needs for class 
B and C waste disposal. Therefore, continued federal oversight of 
disposal availability and the conditions of stored waste is warranted. 
Thus, we suggested that the Congress consider directing the Nuclear 
Regulatory Commission (NRC) to report to it if LLRW disposal and 
storage conditions should change enough to warrant congressional 
evaluation of alternatives to ensure safe, reliable and cost effective 
disposal availability.
    Question 3. Given the prevalence of LLRW storage today, do we 
currently have a safety and security problem?
    Answer. We are currently examining for the Committee the safety and 
security of stored LLRW. NRC and the Agreement States have licensing 
and inspection programs for assuring that stored waste is safe. 
However, since September 11, 2001, the perception of the risks posed by 
potential use of stored LLRW by terrorists has increased. NRC officials 
told us that, as volume and duration of stored LLW increases, so might 
the safety and the security risks. Further, as NRC indicated in its 
comments to our June 2004 report, it is taking actions to identify 
radioactive materials of concern, including LLRW, and to enhance their 
safety and security. According to NRC, once implemented, such actions 
will adequately ensure the safety and security of radioactive 
materials, including stored LLRW. We plan to explore these issues 
further in the course of our current work for the Committee.
    Question 4. I understand that while you reported problems with the 
reliability and usefulness of DOE's MIMS database and recommended that 
DOE stop its dissemination of MIMS data until these problems are 
corrected, DOE has no plans to do so.
    What is your reaction to DOE's position?
    Answer. We are disappointed that DOE has not taken the necessary 
actions to halt dissemination of information contained in its online 
national LLRW database as long as the database has internal control 
weaknesses and shortcomings that adversely affect its usefulness and 
reliability. In commenting on our report, DOE did not address the 
internal control weaknesses or the reliability of the data. Instead, 
DOE focused on the use of these data by state and regional compacts. 
DOE asserted that halting dissemination of these data would evoke sharp 
criticism from these users. However, as noted in our June report, we 
surveyed these users and found a consensus that they could more 
effectively regulate and monitor LLRW if MIMS offered more 
comprehensive and reliable data. As such we stand by our recommendation 
that the Secretary of Energy halt dissemination of information from the 
MIMS database until the internal control weaknesses and shortcomings 
are corrected.
    Question 5. GAO suggests in the report that Congress consider 
directing NRC to report to it when conditions in waste disposal and 
storage might change enough to warrant congressional intervention.
    Do you still feel that this is appropriate?
    Answer. Yes. In our response to agency comments to the June 2004 
report, we explained why we disagreed with NRC's position that it would 
be outside its mission to undertake such reporting. We noted that NRC 
is responsible for overseeing the use, storage, and disposal of 
radioactive materials and that NRC and Agreement state agencies have 
licensing and inspection programs to monitor the safety and security of 
stored waste. We also noted that NRC has begun to establish an interim 
database for sealed sources, some of which become LLRW. As such, we 
concluded that NRC is the most appropriate agency to determine when 
congressional assessment of legislative options to ensure disposal 
availability for LLRW. In addition, NRC's strategic plan for fiscal 
years 2004 through 2009 calls for it to ``assess the key issues 
affecting the safe management of civilian low-level waste disposal to 
ensure that potential disruption in access to the three licensed 
disposal sites does not adversely affect licensees' ability to operate 
safely and decommission their plants safety.'' This assessment can only 
be achieved by monitoring waste levels. This type of monitoring is in 
line with the International Atomic Energy Agency's position that sound 
and responsible waste management requires not only appropriate 
technical and administrative infrastructure but also the establishment 
of comprehensive and up-to-date waste inventories.
    Question 6. Annual low-level disposal volumes have increased 
significantly in recent years, primarily the result of cleaning up DOE 
sites. The GAO states in its report that it chose to rely on disposal 
data from the three commercial disposal operators because the database 
does not include DOE waste volumes sent to commercial disposal and it 
is not up to date. In a letter to me dated September 2, 2004, from DOE, 
the MIMS Internet site states that the database ``currently contains 
some inaccuracies identified during a review by the [Government 
Accountability Office].''
    In your testimony, you stated that the MIMS database should be up 
to date on December 31, 2004. Why is it taking so long, the GAO report 
was released in June, the MIMS website on Monday and Tuesday of this 
week still said there were still inaccuracies?
    Answer. The reference to the December 31, 2004 completion date to 
correct MIMS was provided in the DOE testimony. We defer to DOE to 
respond to this question.

                     Questions From Senator Bunning

    Question 1. In its report, the GAO indicated that the Department of 
Energy's low-level waste database was unreliable.
    What are the requirements for DOE with its database?
    Answer. The Low-Level Radioactive Waste Policy Act, as amended, 
directed DOE to develop a computerized database to monitor the 
management of LLRW (sec. 7(1)) but did not specify what should be 
included in this database. However, in section 7(2), the Congress 
required the Secretary to annually prepare and submit to it a report 
addressing issues that, in our opinion, could only be addressed through 
a more comprehensive national LLRW database than DOE developed. For 
example, the report was to summarize the (1) data on the total amount 
of low-level waste shipped for disposal on a yearly basis, (2) 
proportion of such wastes subjected to volume reduction, (3) average 
volume reduction attained, (4) proportion of wastes stored on an 
interim basis, and (5) interim storage and final disposal volume 
requirements anticipated for the following year, on a regional basis. 
The only data MIMS captured are the volume, waste class, and generator 
of low-level waste that is accepted for disposal at the three 
commercial disposal facilities.
    Question 2. Why is DOE's database so unreliable?
    Answer. The MIMS database is unreliable primarily because DOE does 
not have consistent and comprehensive internal controls to provide 
confidence in the reliability of the data. For example, DOE has taken 
no responsibility for verifying the accuracy of the data supplied by 
the disposal facility operators to be entered into the MIMS database. 
Such verification efforts would likely uncover errors in attribution of 
LLRW generation to states, compacts, and generator types. No government 
agency should be providing data to the public that has not been tested 
for its reliability and validity.
    Question 3. What effect has this had on predicting future waste 
needs?
    Answer. MIMS is not a useful tool for estimating future waste 
streams because it only records the LLRW that is shipped for disposal 
and does not include DOE waste. To be useful in estimating future 
disposal capacity needs, MIMS would need to include the volumes of LLRW 
generated and stored and it would need to include DOE waste since DOE 
accounts for such a large percentage of the waste volume.
    Question 4. GAO found some of the problems with determining future 
waste disposal needs resulted from the difficulty of forecasting DOE's 
and nuclear facilities' disposal shipments.
    How could DOE and nuclear facilities improve the forecasting of 
their disposal shipments?
    Answer. In our report, we discussed the uncertainties regarding the 
timing and volume of LLRW needing disposal in the future, which largely 
will depend on the disposal decisions made by nuclear utility companies 
and DOE. We noted that the pace of nuclear power plant decommissioning 
has been slower than expected and thus the amount of LLRW generated has 
decreased. The current economics of electricity generation has made it 
more desirable to keep nuclear plants in service and, as a result, only 
a small number of plants are expected to be decommissioned in the next 
20 years or more. Moreover, we noted that the nuclear power industry 
has aggressively minimized the amount of LLRW it produces from plant 
operations. Our report also found that the volumes of DOE waste will 
likely start declining after 2006 and stay comparatively low until 
another anticipated spike in 2014. DOE officials stressed, however, 
that ``high confidence numbers'' are not yet available because the 
department is still in the process of reorganizing and developing new 
baselines for its cleanup projects, and it does not have a management 
system in place to develop corresponding waste projections.
    Question 5. Many facilities with low-level waste are concerned that 
if any of the remaining disposal facilities close, their main problem 
will be lack of price competition.
    Do you agree with this assessment?
    Answer. Regardless of any future closure of disposal facilities, 
there is essentially no price competition today. As we reported in 
June, Envirocare of Utah received 99 percent of class A waste and 
Barnwell received about 99 percent of the class B and C wastes that 
were sent to commercial disposal in 2003. As long as there are no time 
limits on LLRW storage, licensees will compare the cost of waste 
minimization and storage against the cost of disposal in deciding if or 
when to get rid of their LLRW. In general, the higher the disposal 
fees, the more incentive to minimize and store LLRW. Disposal operators 
thus have some limits on the level they set for disposal fees because 
they need to receive a certain volume of LLRW in order to retain a 
financially viable commercial operation.
    Question 6. If so, how will this affect cleanup at DOE facilities?
    Answer. The lack of price competition for commercial disposal of 
LLRW does not appear to be a factor for DOE. We have been told that DOE 
is able to achieve price volume discounts on the class A waste it ships 
to Envirocare of Utah. We were also told that if it is more cost 
effective for DOE field managers to ship class A site cleanup waste to 
a commercial disposal facility, considering full life cycle costs, they 
are allowed to do so. If a commercial facility should raise its 
disposal fees so that it is no longer cost effective for DOE, DOE can 
always use its own disposal facilities. We understand that capacity at 
the two DOE disposal facilities does not appear to be an issue in the 
short or longer term.

                      Questions From Senator Akaka

    Question 1. In your opinion, is the FY 2005 budget request of $5.6 
million for the Off-Site Source Recovery program (OSR) sufficient to 
continue the progress in collection of the GTCC sources that you noted 
in your testimony?
    Answer. In a September 2004 meeting, the director of the National 
Nuclear Security Administration's (NNSA) Office of Global Radiological 
Threat Reduction told us that $5.6 million would be sufficient to 
recover the high-priority sources it has identified for recovery in 
fiscal year 2005. This amount represents nearly a three-fold increase 
from the about $2 million DOE asked for in its fiscal year 2004 budget 
request. However, $5.6 million is less than the nearly $8 million NNSA 
actually spent on the program in fiscal year 2004. The additional 
funding above DOE's $2 million request was the result of two transfers 
by the Secretary of Energy totaling $3.5 million from the Office of 
Environmental Management to NNSA. In addition, the program completed 
spending approximately $2.5 million that remained from the $10 million 
appropriated to the program by the 2002 Supplemental Appropriations Act 
for Further Recovery from and Response to Terrorist Attacks on the 
United States, Public Law 107-266.
    We have not independently analyzed the Office of Global 
Radiological Threat Reduction's fiscal year 2005 recovery plans or its 
estimated costs for conducting these recoveries. Without such an 
analysis, we are unable to say whether $5.6 million would be sufficient 
to complete the program's planned recoveries or whether additional 
material needs to be recovered beyond what NNSA currently plans.
    Question 2. In your testimony, you stated that the DOE Office of 
Environmental Management (EM) did not sufficiently prioritize the 
creation of a permanent disposal site for GTCC radioactive waste. You 
also noted that DOE transferred this responsibility to the Office of 
Environment, Safety, and Health. In her testimony at the hearing, Ms. 
Gelles stated that DOE had decided to transfer the responsibility back 
to EM.
    Do you believe this is the best place for this responsibility? 
Could you explain why or why not?
    Answer. In our April 2003 report,\2\ we reported that DOE had not 
made progress toward providing a permanent disposal facility for 
greater-than-Class-C radioactive waste, as required by Public Law 99-
240. Specifically, DOE had not decided which office within the agency 
would begin the first step in developing such a facility, completing 
the appropriate National Environmental Policy Act (NEPA) analysis, 
which would likely be an environmental impact statement. DOE had also 
not provided funding or produced a timeline for completing the NEPA 
analysis. DOE's Office of Environmental Management had identified 
funding for completing the Environmental Impact Statement in fiscal 
years 2002 and 2003. However, the office redirected the funding to 
other higher priority projects.
---------------------------------------------------------------------------
    \2\ GAO, Nuclear Nonproliferation: DOE Action Needed to Ensure 
Continued Recovery of Unwanted Sealed Radioactive Sources, GAO-03-483 
(Washington, D.C.: April 15, 2003).
---------------------------------------------------------------------------
    Designating the Office of Environmental Management as the 
responsible office for conducting the NEPA analysis partially addresses 
our concern that DOE had not assigned responsibility to develop a 
permanent disposal facility. However, we believe it is equally 
important that the Office of Environmental Management provide necessary 
funding and develop a plan that would establish milestones by which 
progress could be measured; evaluate other potential disposal options; 
estimate costs and schedules; and address legislative, regulatory, and 
licensing considerations.

                    Questions From Senator Feinstein

    Question 1. Where will waste from California go once Barnwell, 
South Carolina, stops accepting waste from California (and other) 
states in 2008?
    Answer. If South Carolina follows through with plans to restrict 
access to the Barnwell disposal facility after mid-2008 and no new 
disposal capacity is made available, waste generators in California 
will have no alternative commercial disposal facility for their class B 
and C wastes. However, as we reported in June, licensed users of 
radioactive materials can continue to minimize waste generation, 
process waste into safer forms, and store waste pending the development 
of additional disposal options. These approaches can be costly, with a 
higher financial burden on some licensees than others.
    Question 2. Your June report suggests no current problem with 
disposal availability. In my state, a report prepared in 2000 by the 
former President of the University of California at the request of the 
Governor reached the following conclusions: ``Significantly diminished 
waste streams from California [since enactment of the Low-Level Waste 
Policy Act in 1980]--a ten-fold decrease in volume and an over fifty-
fold decrease in radioactivity--have made the development of a disposal 
facility appear less urgent and the projected disposal costs at such a 
facility less attractive.''
    I gather that your study is generally consistent with that 
conclusion about the current adequacy of national disposal capacity and 
the diminished need for numerous new sites?
    Answer. As reported in June 2004, we found that disposal capacity 
is adequate in the short term, but we did not assess the need for more 
disposal facilities for reasons other than capacity, such as to 
possibly increase the reliability and cost-effectiveness of the LLRW 
disposal system. Our 1999 report did find similar characteristics of 
LLRW disposal conditions as you indicated from the 2000 California 
report. We reported that the impetus to develop new disposal facilities 
has been dampened by a combination of factors, including significant 
decreases in LLRW generation, available capacity at the three existing 
facilities to meet national disposal needs, and rising costs of 
developing disposal facilities. We also reported that the development 
of new LLRW disposal facilities encountered public and political 
resistance in states designated to host these facilities. Two changes 
have occurred since 1999 that we noted in our 2004 report: (1) the 
increase in waste from DOE's site clean-ups disposed of at the 
Envirocare of Utah and (2) the possibility that Texas might be the 
first compact host state to license and open a disposal facility. A 
representative of the company that recently applied for a license to 
open a Texas facility told us that provisions to accept DOE waste at 
this facility are necessary to make it a financially viable operation.
    Question 3. Your study indicates in recent years volumes have gone 
up a bit, but largely due to DOE sending its wastes to commercial 
disposal sites instead of using DOE facilities.
    If a commercial capacity problem were to develop, wouldn't the 
decision of DOE to send its wastes to non-DOE waste facilities have the 
effect of reducing capacity available for commercial wastes?
    Answer. DOE waste currently sent to a commercial disposal facility 
is not affecting disposal availability for non-DOE waste. DOE only 
sends its waste to Envirocare of Utah, which can only accept class A 
waste. We reported that Envirocare has the capacity for more than 20 
years of disposal under its current license, which takes into 
consideration the waste volumes it receives from DOE. We are not aware 
of any DOE plans to dispose of its class B and C wastes at Barnwell. As 
such, DOE is not reducing disposal capacity for other waste generators 
that ship to this facility.
                                 ______
                                 
         California Radioactive Materials Management Forum,
                                   Lafayette, CA, October 26, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: On behalf of the California Radioactive 
Materials Management Forum, I want to thank you for the opportunity to 
appear before the Senate Committee on Energy and Natural Resources on 
Thursday, September 30, 2004 to present testimony concerning disposal 
of low-level radioactive waste.
    Thank you also for your letter of October 4, 2004 and the 
opportunity to respond to your questions and those of Senators Akaka 
and Feinstein, submitted for the record. The questions and our 
responses are attached.
    Members of Cal Rad look forward to working with you, Committee 
members, and Committee staff as you consider means to assure access to 
safe, reliable low-level radioactive waste disposal facilities for 
commercial, institutional, and governmental organizations that use 
radioactive materials.
            Sincerely,
                                            Alan Pasternak,
                                                Technical Director.
[Enclosures.]

                    Questions From Senator Domenici

    In 1980, with the creation of the compact system, the thinking at 
the time was that additional low-level waste disposal sites would be 
created to keep a shortage of disposal space from occurring.
    That doesn't seem to be the case as highlighted in the GAO report. 
Though Envirocare will be able to handle the nation's Class A level 
waste for the foreseeable future, there are real concerns about where 
the Classes B and C level waste, the more dangerous waste, for 34 
states will go.
    In your view, is the compact system working or not working?
    What are the consequences of inadequate storage options for 
radioactive waste? Are public health and safety problems created when 
generators have to store their wastes on-site for long periods of time?
    In your experience on the issue of low-level waste, what role, if 
any should the Congress consider in the oversight of LLRW?

                                RESPONSE

    In our view, the compact system is not working as intended by 
Congress.
    The compact system works only for the ``fortunate fourteen.'' These 
are the eight states of the Northwest Compact region, the three states 
of the Rocky Mountain Compact region, and the three states of the 
Atlantic Compact region. Organizations that use radioactive materials 
and generate low-level radioactive waste in the Northwest and Rocky 
Mountain Compact regions have access, and will continue to have access 
for the foreseeable future, to the Richland, Washington disposal 
facility. Similar organizations in the Atlantic Compact have, and will 
continue to have, access to the Barnwell, South Carolina disposal 
facility. Operation of these two disposal facilities precedes passage 
of the Policy Act.
    However, on the nation's present course, organizations that use 
radioactive materials in the other thirty-six states will have no 
disposal option for the more radioactive classes of their low-level 
waste (waste Classes B and C) as of July 1, 2008 when access to 
Barnwell will be restricted to the Atlantic Compact states. 
Furthermore, there will be only one facility to which they can send a 
subset of their Class A waste--Envirocare of Utah. This raises problems 
of reliability and monopoly control of disposal costs for these wastes. 
Furthermore, the Envirocare facility is not licensed to dispose of 
sealed sources or biological tissue wastes.
    Since enactment of the Low-Level Radioactive Waste Policy Act in 
1980, not a single new facility--licensed to dispose of waste Classes 
A, B, and C--has been developed. This, despite Congressional consent to 
ten interstate compacts. Furthermore, all state programs to develop new 
disposal facilities have ceased with the exception of the program in 
Texas for the Texas Compact (Texas and Vermont). Should Texas be 
successful, the number of states where users of radioactive materials 
lack access to disposal capacity for Class B and C waste would fall to 
thirty-four.
    The consequences of inadequate disposal options for low-level 
radioactive waste are serious. Lack of disposal options requires users 
of radioactive materials to spend money and effort to store their waste 
on-site for an indefinite period of time. The waste must eventually be 
disposed of when the facility--nuclear power plant, university or 
industrial lab, manufacturing plant, or medical or other research 
institution--is decommissioned. At the time of facility clean up and 
decommissioning continued on-site storage is, of course, not an option.
    On-site storage can interfere with facility operations, 
particularly if storage space is limited. The added costs of storage 
may affect costs to ratepayers and other consumers. Current limitations 
on disposal options have already curtailed some medical research 
activities.
    In its comments on the General Accounting Office report issued last 
June, the U.S. Nuclear Commission noted that ``. . . the future 
availability of disposal capacity and the costs of disposal under the 
current system remain highly uncertain and LLRW generators need 
predict-ability and stability in the national disposal system.'' The 
NRC calls for exploration of alternatives that ``. . . would 
potentially provide a better legal and policy framework for new 
disposal options for commercial generators of LLRW.''
    From a public health and safety point of view, while low-level 
radioactive wastes can be safely stored, it is clearly preferable for 
these wastes to be disposed of at a central, regulated facility than 
stored at numerous facilities many of which are in urban neighborhoods. 
Indeed, NRC policy favors prompt disposal of LLRW over indefinite 
storage. More handling and surveillance activities occur when waste is 
stored on-site, and these may result in greater occupational exposure 
to radiation.
    The Policy Act, as enacted in 1980 and amended in 1985, provided 
both a ``carrot'' and a ``stick'' to encourage development of new 
disposal facilities. Interstate compacts were given the authority to 
limit access to their regional disposal facility to the member states 
of the compact. The Act also included a ``take title'' provision 
requiring states that failed to provide access to disposal facilities 
to take title and possession of waste generated within their borders. 
However, in 1992 the Supreme Court struck down the take title provision 
thereby re-moving the ``stick.''
    Given the current situation of limited access to disposal 
facilities for LLRW, the scheduled loss of access to disposal 
facilities for the more radioactive classes of LLRW generated in 34-36 
states, the 24-year failure of the states to develop a single new 
disposal facility as called-for in the Policy Act, and the cessation of 
efforts in the states (with only one exception) to develop new 
facilities, it seems appropriate for Congress to revisit the Policy Act 
and fashion a scheme in which the federal government takes such action 
as will assure the availability of adequate disposal capacity for 
commercial, institutional, and governmental users of radioactive 
materials. A national solution for what is now a national problem seems 
to us advisable.
    The nation does not need ten or more LLRW disposal facilities as 
envisioned in 1980. It does need some additional disposal capacity, 
especially for Class B and C waste. Cal Rad has suggested that Congress 
might make existing U.S. Department of Energy disposal facilities 
available for permanent disposal of commercial waste--perhaps as an 
interim solution. For a long-term solution, we have suggested that one 
or two LLRW disposal facilities be developed under the aegis of the 
federal government, on federal land, and regulated by the U.S. Nuclear 
Regulatory Commission. We believe these steps can be taken without up-
setting the ability of the two existing regional disposal facilities at 
Richland, Washington and Barnwell, South Carolina to continue operating 
under the compact system. As well, any state, such as Texas, that 
wishes to take advantage of the provisions of the Policy Act should be 
able to do so.

                      Questions From Senator Akaka

    In your testimony you stated that a recent GAO report (GAO-04-604) 
understates the urgency of the problem of storing and disposing of low-
level waste, in part because of an underlying belief that storage is an 
adequate alternative to disposal.
    With respect to GTCC waste, do you believe that a similar urgency 
exists to recover and dispose of such wastes?
    Can you please provide your opinion of S. 1045, a bill to 
strengthen DOE's capabilities to dispose of all GTCC wastes.

                                RESPONSE

    It is our understanding that most, if not all, Greater-Than-Class-C 
waste consists of some sealed sources and some of the decommissioning 
wastes from nuclear power plants. We also understand that eventually 
GTCC waste will be disposed of at Yucca Mountain, and Cal Rad supports 
this ultimate solution. In the meantime, the Department of Energy's 
Off-Site Source Recovery Project fills an important need for recovery 
and safeguarding of sealed sources of all classes: A, B, C, and GTCC. 
One reason this project is important is that the Envirocare disposal 
facility at Clive, Utah does not accept any sealed sources for 
disposal.
    S. 1045 notes that the Off-Site Source Recovery Project, which is 
run by the Los Alamos National Laboratory, is slated to end in 2010. 
Cal Rad Forum recommends that this DOE project be continued at least 
until the Yucca Mountain disposal facility is in operation and 
provision has been made for disposal of sealed sources of all waste 
classes.

                    Question From Senator Feinstein

    Where will waste from California go once Barnwell, South Carolina 
stops accepting waste from California (and other) states in 2008?

                                RESPONSE

    On the present course, come July 1, 2008, there will be no disposal 
facility at which to dispose of the more radioactive categories of low-
level radioactive waste (Waste Classes B and C as defined by the U.S. 
Nuclear Regulatory Commission) from California and 33-35 other states 
and only one facility--Envirocare of Utah--to which a subset of Class A 
waste (least radioactive) can be sent for disposal. The Envirocare 
facility is not licensed to dispose of biological tissue waste or 
sealed sources.
    While most of the low-level waste volume produced in California and 
other states is Class A, by far most of the radioactivity is contained 
in the relatively small volume of Class B and C waste.
    Organizations that use radioactive materials in California, in all 
generator categories, currently send Class B and Class C waste to the 
Barnwell, SC disposal facility. These include academic, government, 
industry, medical, and utility users of radioactive materials. Most of 
the Class B and C wastes are from utilities and industry.
    Wastes for which there is no permanent disposal option will have to 
be stored, usually at the site where the wastes are generated. These 
sites include universities, industries, medical centers, government 
facilities and nuclear power plants. Access to only one facility 
(Envirocare) for disposal of a subset of Class A waste raises issues of 
reliability and monopoly control of disposal costs for those wastes.
    Had the proposed Ward Valley, California project been allowed to 
continue to completion, that is where California's low-level 
radioactive waste, along with LLRW from Arizona, North Dakota, and 
South Dakota, would have been disposed of. The proposed Ward Valley 
disposal project had received a license from the California Department 
of Health Services, a favorable joint federal-state Environmental 
Impact Report/Environmental Impact Statement from the state and the 
U.S. Bureau of Land Management, a favorable Supplemental EIS from the 
BLM, two favorable biological opinions from the U.S. Fish & Wildlife 
Service with concurrence of the California Department of Fish & Game, 
and a favorable review by a panel appointed by the National Academy of 
Sciences. In addition, California's Courts up-held the Department of 
Health Services' license and decision to certify the EIR. Unfortunately 
the Ward Valley disposal project fell victim to a lack of political 
will.
                                 ______
                                 
    [Answers to the following questions were not received at 
the time this hearing went to press.]

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                   Washington, DC, October 4, 2004.
Ms. Christine Gelles,
Director, Office of Commercial Disposition Options, Office of 
        Environmental Management, Department of Energy, Washington, DC.
    Dear Ms. Gelles: I would like to take this opportunity to thank you 
for appearing before the Senate Committee on Energy and Natural 
Resources on Thursday September 30, 2004, to give testimony regarding 
issues related to low-level radioactive waste.
    Enclosed herewith please find a list of questions which have been 
submitted for the record. If possible, I would like to have your 
response to these questions by Monday, October 18, 2004.
    Thank you in advance for your prompt consideration.
    Sincerely,
                                          Pete V. Domenici,
                                                          Chairman.
[Enclosures.]

                    Questions From Senator Domenici

    Question 1. Annual low-level disposal volumes have increased 
significantly in recent years, primarily the result of cleaning up DOE 
sites. The GAO states in their report that they chose to rely on 
disposal data from the three commercial disposal facility operators 
because the database does not include DOE waste volumes sent to 
commercial disposal and is not up to date.
    In a letter to me dated September 2, 2004, from the DOE, the MIMMS 
internet site states the database:

        ``currently contains some inaccuracies identified during a 
        review by the General Accounting Office (GAO).''

    In your testimony you stated that the MIMMS database should be up 
to date on December 31, 2004. Why is it taking so long, the GAO report 
was released in June, the DOE MIMS website on Monday and Tuesday of 
this week still said there were still inaccuracies?
    How are you going to guarantee that the MIMMS database is kept up 
to date?
    Question 2. In your testimony you state, ``the Department currently 
utilizes commercial disposal for some low-level and mixed low-level 
waste streams, in cases that it determined to be cost effective and in 
the best interest of the Department.''
    Where is this waste coming from? What commercial facilities are you 
sending it to? Are you tracking the waste?

                     Questions From Senator Bunning

    Question 1. In its report, the GAO indicated that the Department of 
Energy's low-level waste database was unreliable. What are the 
requirements for DOE with its database? Why is the DOE's database so 
unreliable? What effect has this had on predicting future waste 
disposal needs?
    Question 2. The GAO found some of the problems with determining 
future waste disposal needs resulted from the difficulty of forecasting 
DOE's and nuclear facilities' disposal shipments. How could the DOE and 
nuclear facilities improve the forecasting of its disposal shipments?
    Question 3. Many facilities with low-level waste are concerned that 
if any of the remaining disposal facilities close the main problem they 
will face is lack of price competition. Do you agree with this 
assessment? If so, how will this affect cleanup at DOE facilities?

                      Questions From Senator Akaka

    I understand that the Off-Site Source Recovery Program (OSR) was 
transferred to the National Nuclear Security Administration (NNSA) in 
November, 2003. Some of the activities, however, such as the 
identification of a disposal facility and the environmental assessments 
necessary to use the facility, remain with other parts of the 
Department.
    Question 1. I understand from your testimony that on September 29th 
the day before the hearing, the Department designated Environmental 
Management as being the lead entity for ensuring the safe disposal of 
greater-than-Class-C (GTCC) radioactive waste, transferring it from the 
Office of Environment, Safety and Health. Can you provide any formal 
record of the decision to transfer the responsibility back to 
Environmental Management?
    Question 2. Can you please provide details on how the work is 
proceeding on the environmental impact statement (EIS)?
    Question 3. At the FY 2005 budget hearing on February 10, 2004, the 
Department testified that the FY 2005 $3 million budget request for the 
environmental assessment, plus the availability of prior year funds 
that were obligated for the assessment, were adequate to complete the 
EIS. Is it still the case that you will be able to complete the EIS 
with these funds?
    Question 4. Will the Department be exploring disposal alternatives 
as part of the EIS [e.g. existing facilities vs. new facilities or 
commercial options]?
    Question 5. Can you please provide the Department's views on S. 
1045? [The same question is asked of Mr. McGinnis, since part of the 
Off-Site Recovery program was transferred to NNSA.]

                    Questions From Senator Feinstein

    Question 1. Where will waste from California go once Barnwell, 
South Carolina stops accepting waste from California (and other) states 
in 2008?
    Which federal entity has oversight responsibility for Greater than 
Class C radioactive waste?
    Question 2. What steps are being taken to both track and securely 
store GTCC waste? Since Los Alamos can no longer accept some of the 
most highly radioactive waste, where will the waste go?
                                 ______
                                 
                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                   Washington, DC, October 4, 2004.
Mr. Edward McGinnis,
Director, Office of Global Radiological Threat Reduction, National 
        Nuclear Security Agency, Department of Energy, Washington, DC.
    Dear Mr. McGinnis: I would like to take this opportunity to thank 
you for appearing before the Senate Committee on Energy and Natural 
Resources on Thursday September 30, 2004, to give testimony regarding 
issues related to low-level radioactive waste.
    Enclosed herewith please find a list of questions which have been 
submitted for the record. If possible, I would like to have your 
response to these questions by Monday, October 18, 2004.
    Thank you in advance for your prompt consideration.
            Sincerely,
                                          Pete V. Domenici,
                                                          Chairman.
[Enclosures.]

                    Questions From Senator Domenici

    Question 1. In April 2003, the GAO released a port, GAO-03-483, 
Nuclear Nonproliferation, DOE Action Needed to Ensure Continued 
Recovery of Unwanted Sealed Radioactive Sources addressing the issue of 
sealed sources containing greater than class C waste. In April 2003, 
the GAO reported that the exact number of unwanted greater-than-Class-C 
sealed sources in the United States was unknown as no one kept track of 
this information.
    Is someone keeping track or taking an inventory now?
    Question 2. Also, in the same report, the GAO, stated that after 
more than 17 years after the enactment of The Low-Level Radioactive 
Waste Policy Amendments Act of 1985, DOE had not made progress toward 
providing for the permanent disposal of greater-than-Class-C 
radioactive sealed sources, as required by the act.
    Has the DOE been able to determine the volumes of greater-than-
Class-C waste in the United States? Has the DOE been able to designate 
where the greater-than-Class-C waste will be disposed of?
    Question 3. In your testimony for the disposal of waste you say 
that ``the use of commerical pathways makes sense for many reasons. 
They provide a potential and sigficant economy of cost. They use 
exisiting infrastructure, which eliminates the need for certain types 
of new storage facilties . . . '' and so on.
    Do you work with the commerical facilities to ensure there is 
adequate disposal space for the wastes you recover? Is the NNSA 
concerned that the commerical faciltiies may run out of room after 
2008?

                      Questions From Senator Akaka

    First of all, let me say that I greatly appreciate Secretary 
Abraham's response to the GAO report I requested in 2002 on the DOE's 
program to secure and dispose of GTCC sources of nuclear material. I am 
pleased to see the increased commitment to securing GTCC sources of 
radioactive waste through a transferring of the OSR program to NNSA and 
the larger budget requests for FY 2005 and the outyears. My concerns 
come from the growing black market in radioactives, especially 
plutonium-239. Many of the sources are not well-secured. The sealed 
sources need to be identified, secured, and disposed of as quickly as 
possible. The NNSA is taking steps in the right direction. I have 
several questions for you on the subject.
    Question 1. I am concerned about the plutonium-239 isotopes. Will 
the storage space that the United States Radiological Threat Reduction 
Program has identified at Los Alamos and Nevada be adequate to secure 
all the known sources of plutonium-239? If not, what are the backup 
plans?
    Question 2. I noted your endorsement of developing disposition 
paths through the commercial sector, including interim storage and 
recycling for reuse. What are the downsides or obstacles to pursuing 
commercial disposal, and particularly recycling, of GTCC waste?
    Question 3. You stated in your written testimony that the OSR 
program's budget for FY 2004 was $1.96 million. But it is my 
understanding that supplemental funding, in addition to the $3.4 
million you mentioned in your testimony, enabled OSR to work with a 
much larger operating budget in FY 2004.
    Question 4. Can you please provide the program's total operating 
budget for FY 2004.
    Question 5. Can you please provide the Department's views on S. 
1045. [same question is asked of Ms. Gelles.]

                    Questions From Senator Feinstein

    Question 1. Where will waste from California go once Barnwell, 
South Carolina stops accepting waste from California (and other) states 
in 2008?
    Which federal entity has oversight responsibility for Greater than 
Class C radioactive waste?
    Question 2. What steps are being taken to both track and securely 
store GTCC waste? Since Los Alamos can no longer accept some of the 
most highly radioactive waste, where will the waste go?

                              Appendix II

              Additional Material Submitted for the Record

                              ----------                              

                                    Health Physics Society,
                                Los Alamos, NM, September 29, 2004.
Hon. Pete V. Domenici,
Chairman, Energy and Natural Resources Committee, U.S. Senate, 
        Washington, DC.
    Dear Chairman Domenici: The Health Physics Society, a scientific 
nonprofit organization of radiation safety professionals, appreciates 
that the Senate Energy and Natural Resources Committee is conducting a 
hearing on Low-Level Radioactive Waste Oversight. The Health Physics 
Society strongly believes that nuclear technologies enrich the quality 
of life for our society but the beneficial uses must be balanced 
against any potential detriment that the waste streams associated with 
these technologies may pose to human health or the environment. 
Accordingly, I am forwarding a statement on issues related to 
management of low-level radioactive waste that the Health Physics 
Society feels will be of use to your Committee as it provides oversight 
in this area.
    I respectively request the attached ``Public Witness Testimony For 
The Record by the Health Physics Society'' be entered into the record 
of the Committee hearing on Low-Level Radioactive Waste Oversight.
            Sincerely,
                               Raymond A. Guilmette, Ph.D.,
                                                         President.
[Enclosure.]

                              Introduction

    Mr. Chairman, Ranking Member Bingaman, and distinguished members of 
the committee, the Health Physics Society (HPS) appreciates the 
Committee's conduct of a hearing on Low-Level Radioactive Waste 
Oversight and greatly appreciates the opportunity to submit testimony 
sharing some of our observations and recommendations regarding the 
current national policy governing the disposition of Low-Level Waste 
(LLW).
    The HPS strongly believes that nuclear technologies enrich the 
quality of life of our society. These technologies are used to diagnose 
medical illnesses without the need for invasive surgeries, treat 
cancers, conduct research, develop new kinds of pharmaceuticals, 
preserve our food supply, and generate over 20 percent of our nation's 
electricity from commercial nuclear power plants. These plants emit 
essentially no air pollution or greenhouses gases. There is, however, 
waste associated with these beneficial uses. As a matter of national 
policy, we believe that the beneficial uses that these technologies 
provide to our society must be balanced against any potential detriment 
that these waste streams may pose to human health or the environment.
    We have reviewed the information contained in the recent report 
(GAO-04-604)\1\ issued by the Government Accountability Office to your 
Committee in June 2004 and agree with the majority of its contents. We 
also believe that the current shortfalls in LLW disposal options are 
not attributable to any deficiencies in science or technology, but 
rather to the failure to garner the political resolve required to 
implement the Low-Level Waste Policy Act of 1980 (LLWPA), as amended in 
1985, as directed by Congress.
---------------------------------------------------------------------------
    \1\ GAO report to the Chairman on the Energy and Natural Resources, 
U.S. Senate titled ``Low-Level Radioactive Waste, Disposal Availability 
Adequate in the Short Term, but Oversight Needed to Identify any Future 
Shortfalls,'' (GAO-04-604), issued June 2004.
---------------------------------------------------------------------------
        The Nation Needs Predictable Long-Term Disposal Options 
                        for Class B and C Wastes

    As you are aware, Congress enacted the LLWPA to distribute more 
equitably to each state the responsibilities for developing disposal 
capacities for LLW generated within each state's borders. Moreover, 
this legislation encouraged states to enter into regional interstate 
compacts with the intent that a single disposal facility would be 
licensed by a host state, and thereafter, could be used for disposal of 
LLW by any one of its member states. At the time Congress passed this 
legislation, only Washington, Nevada and South Carolina had commercial 
facilities licensed for LLW disposal. Since that time, however, 
deadlines established for creating a network of new disposal sites have 
since passed without opening a single new LLW disposal facility.
    Three facilities are currently authorized to dispose of LLW in the 
United States. Of these, only two facilities are authorized to dispose 
of waste streams comprising the vast majority of the radioactivity in 
waste generated in this country (Class B and C low-level waste).\2\ One 
of these commercial facilities, located in Richland, Wash., prohibits 
access to any state other than the 11 states belonging to the Rocky 
Mountain and Northwest Compacts.\3\ Additionally, because of actions 
taken by state legislators in South Carolina, access to its Barnwell 
facility will be strictly limited to the three member states of the 
Atlantic Compact\4\ after 2008. Until then, the 36 states that do not 
belong to these three compacts may dispose of LLW at Barnwell. After 
the 2008 deadline, the 36 states will be forced to find costly and 
less-than-optimal alternatives for disposal of Class B and C low-level 
waste. Accordingly, many users of radioactive materials have developed 
plans, or have already constructed facilities, for safe interim storage 
of the wastes as a hedge against losing access to disposal sites. 
However, the construction, operation and security of such facilities is 
costly--placing a particular burden on academic, research and medical 
institutions both in the public and private sectors.
---------------------------------------------------------------------------
    \2\ Low-Level Radioactive Wastes are categorized into Class A, B 
and C waste as defined in Title 10, Code of Federal Regulations, Part 
61.55. The basis for this classification is dependent on the 
concentrations and identity of specific radionuclides comprising the 
waste stream. Class A is the least radioactive and least concentrated 
level, while Class B and C have higher levels and concentrations.
    \3\ The 11 Member States of the Northwest and Rocky Mountain 
Compacts include Alaska, Colorado, Hawaii, Idaho, Montana, Nevada, New 
Mexico, Oregon, Utah, Washington and Wyoming.
    \4\ The Atlantic Compact includes Connecticut, New Jersey and South 
Carolina.
---------------------------------------------------------------------------
    It is important to note that Class B and C wastes are largely 
composed of materials from nuclear power plants, including such items 
as used filter media and equipment and hardware that are no longer 
serviceable. These wastes also include materials from academic, 
government, industry, fuel cycle facilities and medical facilities--
primarily in the form of expended radioactive sources. The volumes of 
Class B and C wastes are a small fraction (less than 0.5 percent) of 
the overall volume of disposed waste.
    No significant health and safety impacts are expected to arise in 
the near-term as a result of limited availability or shutdown of 
disposal options for Class B and C wastes. The Nuclear Regulatory 
Commission (NRC) and its Agreement States will continue to maintain 
oversight of waste management practices to assure protection of public 
health and the environment. The Agreement States include the 33 states 
that have delegated authority from the NRC to regulate certain types of 
radioactive material. In addition, the NRC has the authority to enable 
safe disposal of radioactive materials on a contingent basis, if 
required. But ultimately, universally available options for permanent 
disposition of the wastes will still be required.
    The HPS believes that the Compact approach created by the LLWPA has 
been unsuccessful, despite some good efforts, such as a proposed 
facility in Texas. In fact, it appears to the HPS that, in general, the 
LLWPA has unnecessarily restricted access to available disposal sites 
and impeded open commercial development of additional disposal 
facilities. The HPS encourages the Committee to continue to seek 
information and ideas on how it could more effectively implement, amend 
or replace the LLWPA to improve access to existing facilities and 
develop new waste disposition options.

     Lack of Disposal Options May Impact Existing Federal Programs 
                      to Safeguard Sealed Sources

    In August 2003, GAO reported to the Senate actions needed to 
improve the security of sealed radioactive sources.\5\ The HPS commends 
the efforts of each federal agency that has undertaken significant 
improvements to impose more stringent security measures to safeguard 
the control of sealed sources. The additional measures include 
implementing a federal program for disposing and protecting orphan 
sources that exceed specific thresholds. It should be noted that many 
of these sealed sources were orphaned because of the excessive cost of 
disposal at LLW sites. Because of the levels of radioactivity contained 
in many of the sealed sources, they must be disposed of as Class B and 
C waste. After 2008, nuclear facilities in 36 states will be unable to 
dispose of sealed sources in their possession. The HPS believes that 
the lack of disposal options for sealed sources may lead to an increase 
in the number of orphan sources in states that do not have access to 
either the Rocky Mountain or Northwest Compacts. Therefore, the HPS 
encourages the Committee to seek additional information to ensure that 
the existing federal programs for safeguarding high-risk sealed sources 
are able to carry out this mission.
---------------------------------------------------------------------------
    \5\ GAO Report to the Ranking Minority Member, Subcommittee on 
Financial Management, the Budget, and International Security, Committee 
on Government Affairs titled ``Federal and State Action Needed to 
Improve the Security of Sealed Radioactive Sources'' (GAO-03-804), 
issued August 2003.
---------------------------------------------------------------------------
        Despite Long-Term Disposal Options for Class A Wastes, 
   Lack of Competition Results in Excessive Costs for Many Licensees

    The HPS believes that although long-term disposal options for Class 
A waste are available, lack of competition results in excessive cost to 
waste generators. As noted in the GAO report GAO-04-604 waste 
generators are required to dispose of Class A waste at sites in 
Barnwell, S.C., Richland, Wash., or Clive, Utah. Excessive costs 
resulting from the limited disposal options have impeded the use of 
nuclear technologies that provide significant benefits to society. 
Consequently, the HPS recommends that the Committee seek additional 
information from industry, regulatory agencies and other stakeholders 
pertaining to disposal of Class A waste. Additionally, the HPS 
encourages the Committee to support rulemaking initiatives, which would 
allow access to as many as 20 Subtitle C hazardous waste disposal sites 
controlled by the Resource Conservation and Recovery Act (RCRA) for 
more cost-effective means for disposal of Class A waste.
    As the GAO report notes, the current regulatory framework results 
in excessive and overly restrictive requirements for disposal of Class 
A low-level waste. A re-examination of certain aspects of this 
framework may yield new approaches that would increase the number of 
sites that may safely dispose of Class A low-level waste. In fact, 
several of these alternatives provide a safe means of disposing of 
Class A low-level waste in a risk-informed and graded manner. These 
proposals do not require further legislative actions, but could be 
implemented within the existing regulatory framework. The HPS believes 
that such a risk-informed, graded approach is consistent with the 
recommendations specified by the National Council on Radiation 
Protection and Measurements (NCRP) Report 139, ``Risk-based 
Classification of Radioactive and Hazardous Chemical Wastes,'' issued 
in December 2001. This report incorporates the following principles:

          1) The classification system is generally applicable to any 
        waste that contains radionuclides, hazardous chemicals, or 
        mixtures of the two
          2) Wastes that contain hazardous substances are classified 
        based on consideration of health risks to the public that arise 
        from waste disposal
          3) The waste classification system includes an exempt class 
        of waste.

    Implementation of the conceptual approaches contained in NCRP 
Report 139 should allow land disposal of limited concentrations of 
radioactive materials at sites that are designed and authorized to 
contain both hazardous chemicals and radionuclides at a regulated 
disposal site. The HPS believes that the guiding principals outlined in 
this report are germane to this hearing and should be considered for 
seeking solutions to find safe, as well as more efficient and cost-
effective means for disposing of LLW.

          HPS Supports an Integrated Framework for Management 
             and Disposal of Low-Activity Radioactive Waste
    The GAO report cited studies being conducted by the National 
Research Council and EPA that consider necessary changes to current LLW 
thresholds. The GAO noted that changes to this system are under 
consideration that could affect the amount of waste that must be 
disposed of in the future.
    In November 2003, the EPA published an Advance Notice of Proposed 
Rulemaking (ANPR), ``Approaches to an Integrated Framework for 
Management and Disposal of Low-Activity Radioactive Waste,'' that 
sought input on a wide range of issues related to the possible use of 
facilities regulated under RCRA for disposal of certain quantities of 
radioactive materials.\6\ Although the EPA requested comments on the 
most effective use of RCRA Subtitle C facilities for disposal of Low-
Activity Mixed Waste (LAMW), they also requested comment on a variety 
of wastes regulated under the Atomic Energy Act (AEA). These wastes 
include certain wastes governed by the AEA, certain waste generated by 
the extraction of uranium and thorium, a variety of wastes 
characterized as Technologically Enhanced Naturally Occurring 
Radioactive Materials (TENORM), and certain types of decommissioning 
wastes.
---------------------------------------------------------------------------
    \6\ Federal Register, ``Approaches to an Integrated Framework for 
Management and Disposal of Low-Activity Radioactive Waste: Request for 
Comment; Proposed Rule, Volume 68, Number 222,'' Nov. 18, 2003.
---------------------------------------------------------------------------
    The EPA acknowledges that some wastes regulated under the AEA are 
excluded from regulations as ``unimportant quantities'' (i.e., source 
materials containing less than 0.05 percent uranium or thorium), while 
others are regulated down to the last atom. Additionally, the EPA 
acknowledged that the current practice of LLW disposal resulted in 
costly waste management practices and appeared to have an adverse 
impact on the health care industry to levels that were less than 
optimal. To address these issues, EPA solicited stakeholder input to 
find solutions needed to minimize the current practice of imposing dual 
regulatory authority for controlling disposal of the these types of 
regulated wastes.
    Although the EPA requested comments on a variety of issues as 
specified in the ANPR, the following three questions appeared most 
important:

          1) How can the disposal of LAMW be simplified?
          2) Is it feasible to dispose of other Low-Activity 
        Radioactive Wastes (LARW) in hazardous waste sites?
          3) What non-regulatory approaches might be effective in 
        managing LAMW and other LARW?

    To minimize dual regulatory authority, the EPA acknowledged that 
such an integrated framework would also require changes to regulations 
established by the NRC and Agreement States under the AEA. In fact, the 
EPA noted a similar regulatory approach that has previously been 
successful in eliminating dual regulations.\7\ This approach required 
deferral of EPA's authority under RCRA, thus allowing disposal of mixed 
wastes at sites regulated by the NRC, under Title 10 Code of Federal 
Regulations, Part 61. The EPA believed that such a rulemaking was 
justifiable since adequate protection of human health and the 
environment was ensured under the existing NRC standards. The EPA also 
stated that both agencies could pursue a similar and compatible 
rulemaking to further harmonize the management of certain regulated 
waste streams outlined in the proposed rulemaking. Should such a 
rulemaking go forward, it would afford the same level of protection. 
This approach would also reduce the regulatory burdens imposed by two 
separate regulatory regimes, the EPA said. To support this objective, 
the EPA would consider proceeding with a rulemaking that would allow 
disposal of waste streams that contain certain concentrations of 
radioactive materials at one of the 20 existing RCRA-regulated 
facilities. However, for this approach to succeed, the NRC must defer 
its authority under the AEA to allow disposal of licensed materials at 
sites regulated under RCRA, Subtitle C.
---------------------------------------------------------------------------
    \7\ Federal Register, ``Storage, Treatment, Transportation and 
Disposal of Mixed Wastes, Final Rule (40 CFR 266) and Hazardous Waste 
Identification Rule, Revisions to Mixture and Derived-From Rule, Final 
Rule (40 CFR Parts 261 and 268), Volume 66, Number 95,'' May 17, 2001.
---------------------------------------------------------------------------
    In April 2004, the HPS submitted comments on this rulemaking 
initiative, commending the EPA for its leadership in embarking on this 
important task.\8\ As noted in our comments, we believe that disposal 
of LAMW and LARW at the RCRA sites that follow the mandated engineering 
design, waste treatment and disposal practices, will ensure protection 
of public health and the environment. In addition to addressing the 
necessary radiation standards successfully employed to protect human 
health and safety, our April comments addressed technical issues 
regarding the movement and fate of radioactive and hazardous materials 
in the environment. We noted that the movement of radioactive materials 
in the environment would generally share the same parameters as the 
chemical compounds of which they are a part, except to the extent that 
radioactive decay hastens their degradation. We included reference to a 
report by the California Office of Environmental Health Hazard 
Assessment that concluded that biodegradation of many RCRA hazardous 
waste constituents, comprised of heavy metals, are on the order of over 
200,000 years, and thus, comparable to many of the long-lived 
radionuclides. As such, we suggested a concept based on the half-live 
of chemicals and radionuclides should be considered to better shape the 
definition of LAMW and LARW.
---------------------------------------------------------------------------
    \8\ Letter from President Ken Kase to EPA, Air and Radiation Docket 
(Docket ID No. OAR-2003-0095), dated April 23, 2004.
---------------------------------------------------------------------------
        NRC Rulemaking Promotes a Safe Approach for Controlling 
                   the Disposition of Solid Materials
    The HPS supports the rulemaking for ``Controlling the Disposition 
of Solid Materials'' under consideration by the NRC. The HPS also 
supports the rulemaking under consideration by the NRC to adopt dose-
based criteria that would allow for the unrestricted release of sources 
considered inherently safe.\9\ Moreover, we support establishing dose 
criteria that would limit individual doses to an effective dose rate of 
one millirem per year. Establishing dose constraints at such levels are 
consistent with the recommendations specified in NRCP Report 116, 
``Limitation of Exposures to Ionizing Radiation.''
---------------------------------------------------------------------------
    \9\ The HPS provided testimony on this matter before the Senate 
Committee on Environment and Public Works, Subcommittee on Clean Air, 
Wetlands, Private Property and Nuclear Safety on March 9, 2000.
---------------------------------------------------------------------------
    The HPS also supports use of the annual dose limit and the derived 
screening criteria contained in the American National Standard 
Institute/Health Physics Society (ANSI/HPS) Standard N13.12, ``Surface 
and Volumetric Radioactivity Standards for Clearance'' (ANSI/HPS 
N13.12, 1999). This standard was developed for ANSI under the direction 
of the HPS Standards Committee. The standard received consensus 
approval through ANSI Committee N13 in August 1999. Moreover, our 
recommendation is in keeping with the intent of Public Law 104-113 
``National Technology and Transfer Act of 1995'' and OMB Circular A-119 
``Federal Participation in the Development and Use of Voluntary 
Consensus Standards.''
    This position is fully consistent with similar standards adopted by 
the European Community to support commerce across international 
borders. The International Atomic Energy Agency developed these 
radiological criteria,\10\ specifying the concentrations of radioactive 
materials that are considered inherently safe. The basic radiological 
criteria used by the IAEA to derive radionuclide concentrations for the 
clearance of materials limited individual doses at an annual effective 
dose rate of 1 millirem. As a result, international radiological 
criteria for the release of solid materials are equally as protective 
to members of the general public as those specified in ANSI/HPS N13.12
---------------------------------------------------------------------------
    \10\ IAEA Safety Series No. 115 International Basic Safety 
Standards for Protection against Ionizing Radiation and for the Safety 
of Radiation Sources, February 1996.
---------------------------------------------------------------------------
    The NRC has requested comments on this rulemaking initiative that 
also pertains to establishing levels of radioactivity that would be 
unsuitable for unrestricted release, but appropriate for disposal 
(i.e., ``Conditional Release'') at sites regulated under RCRA, Subtitle 
C. In fact the NRC held a public workshop with stakeholders to address 
the matter in May 2003.\11\ During comments on this rulemaking, the HPS 
encouraged the NRC to conduct early consultations with other federal 
and state government agencies in support of disposals at RCRA 
facilities.\12\ The HPS believes that these early consultations would 
better harmonize the relevant regulations and instill more public 
confidence in the regulatory oversight of LLW disposal.
---------------------------------------------------------------------------
    \11\ The NRC requested comments on scope of proposed rulemaking is 
the Federal Register, ``Rulemaking on Controlling the Disposition of 
Solid Materials: Scoping Process for Environmental Issues and Notice of 
Workshop,'' Volume 68, Number 40, February 28, 2003.
    \12\ Letter from the HPS to the NRC, Rulemakings and Adjudications 
Staff, June 13, 2004.
---------------------------------------------------------------------------
    Should the EPA decide not to proceed with its rulemaking as 
described in the ANPR, other alternatives should be explored to allow 
disposal of radioactive materials at RCRA sites within the existing 
regulatory framework.\13\ Over the past several years, the NRC and EPA 
have implemented a Memoranda of Understanding that addresses instances 
where these two regulatory agencies have dual and overlapping 
authority.\14\ This interagency process also could facilitate similar 
successes whereby the NRC could promulgate a ``Conditional Use'' rule, 
which would allow disposal of AEA materials at RCRA Subtitle C sites. 
Under such a rule, the NRC would defer its authority to EPA to ensure 
that such waste disposals were conducted in accordance with RCRA, 
Subtitle C standards.
---------------------------------------------------------------------------
    \13\ Currently, disposal of licensed materials under the AEA are 
disposed of at RCRA Subtitle C/D sites on a case-by-case basis in 
accordance with 10 CFR 20.2002.
    \14\ T.S. Tenforde, ``Future Role of the NRCP in Radiation Health 
Protection,'' Health Physics, Volume 87, Number 3, pp. 312-317, 
September 2004.
---------------------------------------------------------------------------
  A Non-Regulatory Alternative to Commercial LLW Disposal for Certain 
               Radioactive Materials Should Be Considered
    The HPS believes that solutions pertaining to non-regulatory 
approaches\15\ to more effectively manage LARW are a sound regulatory 
policy. An approach that involves use of uranium mill tailings for 
disposal of a select type of Class A LLW (i.e., certain fuel cycle 
materials) is a logical alternative that should be considered to help 
ease the LLW dilemma. This approach was jointly proposed by the Fuel 
Cycle Facilities Forum (FCFF) \16\ and the National Mining Association 
(NMA) \17\ as an example of a non-regulatory approach as addressed in 
EPA's ANPR.
---------------------------------------------------------------------------
    \15\ Non-regulatory approaches should be viewed as statutory 
actions that exist within the scope of an existing framework. Non-
regulatory approaches should not be viewed as removal of such wastes 
from regulatory control or ``deregulation of LLW.''
    \16\ The Fuel Cycle Facilities Forum is a consortium of fuel cycle 
companies whose primary purpose is to provide a forum for addressing 
regulatory, technical and operational issues associated with the 
decommissioning of facilities currently or formerly involved in the 
processing of special nuclear materials and source material (primarily 
uranium and thorium).
    \17\ The National Mining Association (NMA) represents producers of 
most of America's coal, metals, industrial and agricultural minerals; 
manufacturers of mining and mineral processing machinery and supplies; 
transporters; financial and engineering firms; and other businesses 
related to coal and hard rock mining. NMA has member companies who are 
NRC licensees with uranium mill tailings facilities.
---------------------------------------------------------------------------
    Disposing of high volume, low activity wastes in uranium mill 
tailings impoundments offers a number of practical advantages, and the 
existing regulatory framework can support such an approach. Existing 
mills have sufficient capacity to accept most, if not all of the fuel 
cycle industry's low-activity, high-volume waste well into the 
foreseeable future. Federal statutes require that mill tailings 
impoundments be turned over to the Department of Energy for long-term 
custodial care in perpetuity, at no cost to the government. In 
addition, federal statutes also require that mill tailings sites be 
protected for up to 1,000 years with no active maintenance and only 
passive controls, thereby providing greater protection than that 
offered by RCRA disposal facilities and existing commercial LLW 
disposal sites. This disposal alternative can be pursued within the 
context of existing legislation and federal regulations.
    The NRC has a policy regarding the direct disposal of certain 
radioactive materials at uranium mill tailings facilities. These 
facilities normally contain waste generated from the processing or 
concentration of source material, known as 11e.(2) byproduct material. 
The existing policy and guidance that allows for disposal of non-
11e.(2) material in mill tailing piles should be amended, and the NRC 
needs to liberalize its waste acceptance criteria for non-11e.(2) 
materials disposed in licensed uranium mill tailings impoundments. The 
FCFF and NMA are pursuing a joint initiative to propose to the NRC 
active regulatory, political, and economic consideration of using 
uranium mill tailings facilities for direct disposal of waste streams 
that are similar to uranium recovery wastes.\18\
---------------------------------------------------------------------------
    \18\ In response to the EPA's ANPR, the FCFF and the NMA jointly 
submitted a White Paper that espouses the merits of disposal of non-
11e.(2) materials in Mill tailings impoundments, and provides a 
complete and compelling regulatory basis for the option.
---------------------------------------------------------------------------
    Beginning in 1992, the NRC developed a policy for the direct 
disposal of non-11e.(2) byproduct material in such facilities. In a 
1998 white paper, the NMA proposed that the NRC liberalize what types 
of non-11e.(2) materials could be appropriately disposed of in licensed 
uranium mill tailings impoundments. The NMA recommended that the agency 
develop generic waste acceptance criteria for such materials. The 
current joint FCFF-INMA initiative attempts to build on the record 
developed by the NRC and on the NMA white paper to further refine the 
debate on this issue.
    The history of LLW disposal and the history of the proposed use of 
mill tailings impoundments for non-11e.(2) disposal lend credibility to 
the argument that the existing policy on non-11e.(2) materials should 
be revisited and lays the foundation for this innovative approach. The 
FCFF/NMA white paper proposes regulatory, political and economic bases 
for generic waste acceptance criteria that could be debated in the 
regulatory marketplace among all relevant stakeholders, and 
subsequently serve as the basis for a technically sound disposal 
alternative for a large volume of low-activity waste throughout the 
United States.
    A fundamental concern associated with the direct disposal of non-
11e.(2) byproduct material in uranium mill tailings impoundments is 
that, if such material contains RCRA hazardous wastes, it could then 
subject the entire impoundment to regulation by EPA or delegated states 
under RCRA. A similar type of jurisdictional overlap might occur if any 
non-11e.(2) byproduct material containing Naturally Occurring 
Radioactive Material (NORM) subject to state regulation is disposed of 
in a mill tailings impoundment. This potential for dual or overlapping 
jurisdiction raises questions about the eventual transfer of custody of 
mill tailings to DOE, the long-term custodian. The Uranium Mill Tailing 
Radiation Control Act of 1978 (UMTRCA) requires Title II licensees to 
transfer custody of their uranium mill tailings facilities to DOE upon 
license termination, and DOE is required by Section 83 of the AEA to 
take the mill tailings and other property necessary for the proper 
disposal of 11e.(2) byproduct material. Since UMTRCA contains no 
provision requiring that DOE take custody of, or title to, materials 
other than 11e.(2) byproduct material, disposal of other materials 
could, without congressional action, pose an impediment to license 
termination and transfer of custody to DOE as the long-term steward.
    Although DOE is only required to take title to and custody of 
11e.(2) byproduct material under UMTRCA, the department has the 
authority to accept custody of AEA wastes other than 11e.(2) byproduct 
material under the Nuclear Waste Policy Act of 1980, including non-
11e.(2) byproduct material, provided that

          1) NRC requirements for site closure are satisfied
          2) transfer of title and custody to DOE is without cost to 
        the federal government
          3) federal ownership and management of the site is necessary 
        or desirable to protect public health and safety and the 
        environment.\19\
---------------------------------------------------------------------------
    \19\ 42 USC Sec. 10171(b).

    Several categories of wastes have already been proposed for 
disposal in uranium mill tailings impoundments including: secondary 
process wastes generated during the capture of uranium in side-stream 
recovery operations; sludge and residues generated during treatment of 
mine water containing suspended or dissolved source material; NORM, and 
TENORM. Some fuel cycle facilities have expressed an interest in 
seeking NRC approval to dispose of special nuclear materials in 
existing tailings impoundments once the NRC addresses the issue 
presented in the referenced joint FCFF/NMA white paper. To address 
these and other issues, the NRC began its inquiry into this matter 
around a decade ago.
    Under the regulations supporting UMTRCA, non-11e.(2) byproduct 
materials that are disposed of in tailings impoundments would be 
subject to stringent, ongoing and long-term oversight by the NRC and 
DOE with regard to both radiological and non-radiological hazards, 
making these facilities particularly appropriate disposal sites. 
Moreover, this superior protection would be achieved without the 
creation of new disposal sites. This approach is also philosophically 
consistent with the NRC's requirement ``to avoid proliferation of small 
waste disposal sites and thereby reduce perpetual surveillance 
obligations.'' In addition, this approach would be consistent with 
long-standing policies favoring disposal over storage of LLW wastes.

                            Recommendations

    The HPS encourages the Committee to consider the following six 
recommendations as it deliberates on the most effective means to 
address issues pertaining to LLW disposal:

   Continue to receive information and ideas on how the LLWPA 
        might be more effectively implemented, or amended or replaced, 
        to improve access to existing facilities and develop new waste 
        disposition options.
   Ensure that the existing federal programs for safeguarding 
        high-risk sealed sources have disposal capabilities to allow 
        them to carry out this mission.
   Take a broad look at the manner in which hazardous chemicals 
        and radioactive materials are classified with regard to with 
        the principles specified in NCRP Report 139. Adoption of this 
        recommendation is needed to support a consistent risk-based 
        system for the safe disposition of all hazardous substances.
   Provide the necessary support for the EPA to continue with a 
        rulemaking for an ``Integrated Framework for Management and 
        Disposal of Low-Activity Radioactive Waste,'' as outlined in 
        their Advanced Notice of Proposed Rulemaking.
   Support NRC actions to promulgate a rule on Controlling the 
        Disposition of Solid Materials. Moreover, should EPA decide not 
        to proceed with such a rulemaking, the Committee is encouraged 
        to seek additional information on possible regulatory 
        alternatives to allow use of RCRA Subtitle C sites for disposal 
        of materials regulated under the AEA.
   Encourage the use of non-regulatory approaches that allow 
        for the safe disposal of LLW within an existing regulatory 
        framework.

                              Conclusions

    The HPS agrees with the majority of the information contained in 
the GAO report pertaining to management of low-level waste in the 
United States. The HPS agrees that the Low-Level Waste Policy Act needs 
to be more effectively implemented, or amended or replaced, to improve 
access to existing facilities and develop new waste disposition 
options. We believe that although disposal capacity for Class A low-
level waste is sufficient for the foreseeable future, lack of 
competition currently results in costly waste management practices that 
impede the use of nuclear technologies that enhance the quality of life 
of those in our society. Consequently, we believe that several 
alternatives under consideration by the EPA and NRC may more 
effectively allow for the safe disposal of certain types of Class A 
low-level waste.

                                 ______
                                 
  Statement of Joe F. Colvin, President and Chief Executive Officer, 
                        Nuclear Energy Institute

    Mr. Chairman and members of the committee, I appreciate the 
committee's continued active oversight of issues relating to civilian 
use of nuclear technologies and welcome the opportunity to provide the 
industry's perspective on issues raised in the Government 
Accountability Office's (GAO's) June 2004 Report on low-level 
radioactive waste.
    The Nuclear Energy Institute (NEI) represents 260 corporate members 
in 13 countries. They include companies that operate nuclear power 
plants, design and engineering firms, fuel suppliers and service 
companies, companies that manage and dispose of low-level radioactive 
waste, companies involved in nuclear medicine and nuclear industrial 
applications, radionuclide and radiopharmaceutical companies, 
universities and research laboratories, and labor unions.
    Nuclear technologies offer significant benefits to society. 
America's nuclear power plants produce 20 percent of the nation's 
electricity. More than 30 million medical procedures a year use nuclear 
technologies for diagnosis or therapy, accounting for about one in 
three hospital admissions. Critical industries use radioactive 
materials as power supplies, for making measurements and to analyze and 
test new components and devices. Low-level waste (LLW) is a normal 
industrial byproduct of these beneficial uses.
    The GAO report on low-level waste (GAO-04-604) provides an 
excellent review and update of the situation on the availability of 
disposal sites for LLW. The report concludes that the availability is 
currently adequate, but that the situation could change in the future. 
As a result, we agree that Congress must remain actively involved in 
the oversight of the issue.
    There are steps that should be taken now to facilitate effective 
oversight. For instance, we concur with the GAO recommendation that the 
Department of Energy should ensure that the Manifest Information 
Management System (MIMS) database contains accurate data. DOE should 
continue to disseminate the information from MIMS as the agency 
improves the system.
    However, we disagree that it is necessary for the Nuclear 
Regulatory Commission (NRC) to report to Congress on LLW disposal and 
storage conditions to ensure that safe, reliable and cost-effective 
disposal is available. The NRC is a regulatory agency whose expertise 
and mission focus is on ensuring the safety and security of licensee 
activities through oversight and inspections. The NRC is not well-
suited to study what amounts to future projections related to broad 
programmatic issues--a responsibility that could dilute the agency's 
focus on safety and security.
    Given that the GAO has studied LLW disposal twice in recent years 
(1999 and 2004) and has developed an excellent institutional capacity 
for the subject, we believe that Congress should--at an appropriate 
future time--request the GAO to perform an updated evaluation.
    Low-level waste disposal is currently market-driven within the 
``compact'' framework that Congress provided for in the Low-Level 
Radioactive Waste Policy Act as amended in 1985. This framework allowed 
states to form regional compacts for managing their LLW. Producers of 
LLW have disposed of their waste safely and securely in several areas 
of the country. Washington, South Carolina and Utah have operating LLW 
disposal sites.
    The Texas state legislature recently authorized the creation of two 
waste disposal facilities that will be licensed as one site. On Aug. 4, 
2004, Waste Control Specialists LLC submitted a license application for 
a facility in Andrews County, Texas.
    The resolution of two issues is essential with regard to the long-
term disposal of the country's LLW: to have adequate access to Class B 
and C disposal facilities and to address the possibility of a single 
site for Class A waste by 2008.\1\ The market has time to respond to 
these developments, and we have strong reason to believe that it will.
---------------------------------------------------------------------------
    \1\ Low-level radioactive wastes are categorized as Class A, B and 
C waste, depending on the concentration and type of radionuclides in 
the waste. Based on these criteria, Class A is the lowest rating, and 
Class C is the highest.
---------------------------------------------------------------------------
    If the market does not respond or if there are impediments that 
legislative changes to the Low-Level Waste Radioactive Policy Act could 
address, then it would be appropriate for this committee to consider 
action in close consultation with those industries that generate LLW 
and must address these disposal options.
    Disposal of greater-than-Class-C waste is only a problem for 
decommissioning power plants and is (by law and regulation) tied to DOE 
actions. Most likely these actions will be linked to progress on the 
nation's used nuclear fuel repository (for high-level radioactive 
waste) at Yucca Mountain, Nev., and should not be the focus of 
oversight on the LLW issue. Although disposal of greater-than-Class-C 
waste is a separate issue, we recommend continued congressional 
oversight of DOE's progress in this sector.
    Finally, we encourage the committee to support initiatives 
permissible within the current legislative framework that will enable 
safe alternative means for LLW disposal. Two such initiatives include 
an NRC-proposed rulemaking on the safe disposition of solid radioactive 
material\2\ and an advance notice of proposed rulemaking by the 
Environmental Protection Agency for the management and disposal of 
LLW.\3\
---------------------------------------------------------------------------
    \2\ Federal Register, ``Rulemaking on Controlling the Disposition 
of Solid Materials: Scoping Process for Environmental Issues and Notice 
of Workshop,'' Nuclear Regulatory Commission, Feb. 28, 2003.
    \3\ Federal Register, Advance Notice of Proposed Rulemaking: 
``Approaches to an Integrated Framework for Management and Disposal of 
Low-Activity Radioactive Waste: Request for Comment,'' Nov. 18, 2003.
---------------------------------------------------------------------------
    NEI looks forward to working with the committee to ensure that the 
management and disposal of LLW continues to protect public health and 
safety.

                                 ______
                                 
         Statement of Alan J. Fohrer, Chief Executive Officer, 
                       Southern California Edison

    Mr. Chairman and Members of the Senate Energy and Natural Resources 
Committee, on behalf of Southern California Edison (SCE), I would like 
to thank you for this opportunity to express SCE's concern about the 
current lack of reliable disposal options for low-level radioactive 
waste. I am the Chief Executive Officer of SCE, a California-based 
investor-owned electric utility. SCE serves 12 million customers in 450 
communities, including almost 300,000 businesses in Southern 
California. We own a wide variety of electric generation facilities, 
including hydropower, coal, natural gas, and nuclear. As an owner and 
operator of the San Onofre Nuclear Generating Station (SONGS) in San 
Clemente, California, we are especially concerned about low-level 
radioactive waste (LLRW) disposal.
    In June, the Government Accounting Office (GAO) released a report 
that asserts that (1) there is no disposal shortfall for Class A low-
level radioactive waste (LLRW), and (2) that there will be no shortfall 
for disposal of Classes B and C wastes until mid-2008 when South 
Carolina will restrict access to the Barnwell disposal facility to 
Atlantic Compact members only. At that time, the GAO report states that 
Class A waste disposal will be adequate with the existing license for 
the Envirocare facility; and that the storage of B and C wastes at the 
hundreds of sites where the waste is being generated is an acceptable 
alternative until disposal capacity becomes available. (pages 18-19).
    We are here today because we disagree with these conclusions. We 
believe that that the Low-Level Waste Policy Act (The Act) and 
amendments thereto have not resulted in adequate disposal capacity for 
LLRW. One of the purposes of the Act was to permit states to band 
together to provide a local site for the disposal of LLRW. The reality 
is that such regional facilities for disposal of LLRW have not been 
created and we are concerned about the long-term lack of disposal for 
LLRW. We have reason to be concerned as we look at the operational 
units at SONGS that will need to be decommissioned in the future. Unit 
1 has been shutdown since 1992 and is currently being decommissioned. 
Units 2 and 3 are due to cease commercial operation in 2022. To date, 
SCE has removed approximately 15 million pounds of LLRW from Unit 1. We 
estimate that we have roughly 86 million pounds to remove from Unit 1 
before decommissioning is complete.
    U.S. Ecology, the private company selected to build a LLRW within 
California, spent roughly $90 million in an effort to develop a LLRW 
disposal facility at Ward Valley, without success. Ward Valley is not 
unique. In fact, the GAO report states that ``Despite estimates by a 
nuclear industry association that expenditures may now have reached 
approximately $1 billion on various facility development efforts, no 
new commercial LLRW disposal facility has been developed since passage 
of the Act, except for the Envirocare facility, which was not developed 
at the instigation of the compact in which it exists'' (page 9). As a 
company obliged to meet our public utility obligation to safely dispose 
of LLRW over the long-term, we find this especially disturbing.
    Planning for the inevitable disposal of LLRW must begin now. The 
GAO based its assessment of the adequacy of disposal on the assumption 
that few plants will undergo decommissioning over the next 20 years 
(page 16). In reality, all of the plants will go through this process 
sooner or later, generating significant volumes of all classes of LLRW.
    In California's case, efforts to identify a potentially suitable 
site started in 1982. After nine years of extensive site 
characterization and scientific studies, the California Department of 
Health Services issued a license. The federal government did not 
transfer the designated site to California, stymieing the process. The 
final blow was in 2002, twenty years after work began, when California 
passed legislation (AB2214) prohibiting the use of the most favorable 
site--Ward Valley--from being used as a low-level radioactive waste 
disposal facility. Concurrently, the Governor issued an executive order 
prohibiting disposal of wastes from decommissioned facilities that have 
terminated their licensees and are no longer regulated at Class III 
landfills. This blanket prohibition is imposed regardless of whether 
the wastes originated in areas previously used for licensed activities. 
Years of litigation continue to this day, with the California Appellate 
Court ruling in March 2003 that the company performing the siting and 
characterization studies could not recover costs from California.
    Last year, Texas succeeded in finally garnering enough support to 
enact legislation allowing for siting and operation of a commercial 
LLRW disposal facility. Assuming things go smoothly, the earliest that 
the facility could begin to accept LLRW for disposal is 2008. Under 
current law and Compact status, only generators from Texas, Maine, and 
Vermont would be allowed to ship LLRW to that facility.

                            Class A Disposal

    We concur with the GAO's conclusion that disposal capacity for 
Class A waste will generally be available. After June 30, 2008, the 
only licensed low-level disposal facility that accepts Class A waste 
for some 36 states will be a privately operated facility--Envirocare of 
Utah. Unfortunately, Envirocare does not accept all forms of Class A 
waste. Moreover, we expect that costs to dispose of LLRW at Envirocare 
will continue to rise.
    Mixed wastes have never been comprehensively addressed under the 
current LLRW process. The majority of the planning for low-level waste 
disposal explicitly has excluded mixed wastes at proposed compact 
facilities. Mixed wastes contain both hazardous and radioactive 
constituents (typically Class A) and are subject to regulation by both 
EPA and the NRC. Recognizing the deficit in disposal options for mixed 
waste, in November 2003 EPA and the NRC initiated efforts to resolve 
the issue by evaluating the possibility of allowing mixed wastes to be 
disposed of at Resource Conservation and Recovery Act (RCRA) Subtitle C 
landfills. These landfills are designed and permitted for disposal of 
hazardous wastes. As it is currently being considered, allowing mixed 
wastes to be disposed of at a RCRA-C facility would rely on both the 
RCRA-C facility operator pursuing the flexibility once it has been 
developed (at least 3-5 years hence), and on the State in which the 
RCRA-C facility is located adopting this new federal option.

                        Classes B and C Disposal

    The existing availability of disposal access for Classes B and C 
waste is limited and requires significant allocation of resources. GAO 
notes in its report (footnote 17 on page 18) that even though the 
Barnwell site in South Carolina is still technically accepting all low-
level radioactive wastes, including Classes B and C, there is limited 
space and that space continues to dwindle.
    There are no readily apparent options to resolve the lack of access 
for disposal of B and C wastes after mid-2008. GAO states on page 5 
``Unless South Carolina changes its position, or additional disposal 
capacity is made available, there will not be disposal options for 
class B and C wastes generated within these [36] states in the longer 
term.''
    The GAO discussed the fact that South Carolina has in the past 
opened and closed and reopened the Barnwell facility to out-of-compact 
waste. However, given that current South Carolina law prohibits 
disposal of LLRW except to those in the Atlantic Compact (Connecticut, 
New Jersey, and South Carolina) after June 30, 2008, it is not 
reasonable to consider Barnwell a viable long-term disposal option.
    In May 2004, the Utah Hazardous Waste Regulation and Tax Policy 
Legislative Task Force adopted a motion recommending that state 
lawmakers not approve the disposal of Class B and C waste within the 
state, which includes disposal at Envirocare. It is, therefore, not 
reasonable to assume that disposal of Classes B and C wastes at 
Envirocare will be a viable long-term disposal option.
    Additionally, the GAO noted the possibility of the in-development 
Texas LLRW site being available for out-of-compact waste. Texas law 
already restricts the proposed facility's non-compact waste by limiting 
out-of-state waste to only a small fraction of the total waste 
deposited each year. It is unreasonable to assume that the Texas LLRW 
will be a viable long-term disposal option.
    Finally, there are transportation-related challenges, particularly 
with regards to logistics, that make shipments to Barnwell problematic 
from the West Coast. Some of the low-level waste to be disposed of 
during decommissioning SONGS 1 will be in the form of large components. 
The transportation of such large components can be inordinately 
expensive and logistically complex. If there is no realistic option for 
regional disposal, then these large components will have to be 
transported over long distances.

                            General Comments

    There are impacts associated with loss of access to disposal 
facilities, some more significant than is portrayed in the report. GAO 
asserts that they could not detect widespread effects other than costs 
incurred for extended on-site storage and management. Even if that were 
true, resources are not infinite. After 2008, when generators in at 
least 36 states no longer have access to a disposal facility for 
Classes B and C waste, it will become impossible to fully decommission 
a facility and terminate the license as long as wastes are stored on-
site. Pharmaceutical companies and research universities in California 
are already finding themselves unable to expand their operations or go 
about normal business progression because of license termination 
issues. This situation will only worsen once disposal access is lost. 
Even if GAO's assertion was true, the resources required for on-site 
storage and waste-management are limited.
    Waste minimization and on-site storage may help to alleviate the 
lack of disposal capacity but are not long-term solutions nor do they 
represent viable alternatives for all LLRW. Some medical and research 
facilities can successfully address part of the LLRW disposal problem 
by storing the waste on-site until the radioisotope has decayed away to 
non-detectable levels. This approach is limited by definition to those 
radioisotopes with relatively short half-lives and cannot be used by 
the majority of LLRW generators, including SCE. Waste minimization 
techniques such as volume reduction, source substitution, and changes 
in manufacturing processes have contributed to steadily decreasing 
volumes of LLRW for disposal over time, but these techniques are also 
limited. In many instances, the industry relies on the radioactive 
properties to achieve its purpose--nuclear power, for example, relies 
on the fission process to generate heat and provide electricity to the 
customer. Source substitution is therefore not always an option. Even 
volume reduction is limited--care needs to be taken as supercompaction 
of Class A wastes can produce Class B wastes, restricting where the 
final waste can be sent for disposal.
    On-site storage. The GAO report contends that LLRW which cannot be 
disposed of at a licensed disposal facility can be kept on the site 
where it was generated. While the NRC currently allows on-site storage 
without a time limit, this is in part because the NRC recognizes that 
there is not always a disposal alternative. However, the absence of a 
time frame for on-site storage does not indicate that the NRC believes 
permanent LLRW storage where the waste is generated is a feasible long-
term plan. The practical effect of licensees being forced to store 
waste on-site due to the lack of access to a licensed disposal facility 
is that licensees will be unable to fully decommission the site and, 
therefore, cannot terminate their operating license or its attendant 
obligations.
    Regardless of which agency tracks volumes of LLRW that has been 
shipped and/or disposed of, this administrative mechanism does nothing 
to improve safe disposal options. The GAO spent a considerable amount 
of space in the report discussing the validity and discrepancies in the 
MIMS database. While there are errors in the database, many of which 
were identified and corrected, the focus of the GAO on the inclusion of 
DOE waste and criticism of DOE's program misses the point of the 
study--namely, that there is, and will continue to be, commercial LLRW 
that requires available disposal capacity.

                              Conclusions

    There is currently no clear path forward that provides predictable 
and stable disposal options. As a consequence, entities such as SCE, 
which generate LLRW as a by-product of beneficial uses of radioactive 
materials, face regulatory limbo. This perpetual limbo will adversely 
affect the ability of nuclear utilities to maintain or increase the 
output of low-cost, low-emission electric generation. The result will 
be higher costs and lower reliability for electric consumers across the 
board.
    The NRC in its comments on the draft report urged GAO to explore 
alternatives to the current system for developing new facilities. The 
same comment was made on the GAO's 1999 ``Low-Level RadioactiveWastes--
States Are Not Developing Disposal Facilities'' GAO/RCED-99-238. The 
GAO did note that the National Research Council and the EPA (in concert 
with the Nuclear Regulatory Commission) are studying various aspects of 
LLRW management. The National Research Council has a panel evaluating 
regulatory and management issues associated with all forms of low 
activity waste (including NORM, LLRW, DOE waste, source materials, 
tailings, etc.) That study may make recommendations regarding changes 
to the regulatory framework but any changes would probably require 
considerable Congressional action and are many years distant. The EPA 
activity that is evaluating the possibility of low activity waste 
disposal in RCRA facilities (or other methods) is also in its infancy, 
and if any action is taken at all, it will probably only begin with 
mixed waste management.
    While there is no immediate crisis for disposal of low-level 
radioactive waste, the reality is that years of planning and 
environmental studies are required before a facility can begin to 
accept waste for disposal. In California, over a decade of site 
characterization, testing, and environmental studies that identified 
the most scientifically suitable site were trumped by litigation, 
concerted efforts by anti-nuclear organizations, and lack of 
implementation, at both the state and federal levels. We cannot rely on 
unknown solutions to this inevitable problem or defer such solutions to 
some indeterminate future date. We must now adopt a workable process 
for safe and responsible disposal of low-level radioactive wastes.

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