U.S. GOVERNMENT PRINTING OFFICE

58–507CC WASHINGTON : 1999

THE NUCLEAR REGULATORY COMMISSION

AUTHORIZATION ACT FOR FISCAL YEAR 2000

HEARING

BEFORE THE

SUBCOMMITTEE ON ENERGY AND POWER

OF THE

COMMITTEE ON COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON

H.R. 2531

JULY 21, 1999

Serial No. 106–46

Printed for the use of the Committee on Commerce

(

2

COMMITTEE ON COMMERCE

TOM BLILEY, Virginia, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

MICHAEL G. OXLEY, Ohio

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

Vice Chairman

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

RON KLINK, Pennsylvania

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

THOMAS C. SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

JAMES E. DERDERIAN, Chief of Staff

JAMES D. BARNETTE, General Counsel

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

SUBCOMMITTEE ON ENERGY AND POWER

JOE BARTON, Texas, Chairman

MICHAEL BILIRAKIS, Florida

CLIFF STEARNS, Florida

Vice Chairman

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

ED WHITFIELD, Kentucky

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

TOM BLILEY, Virginia,

(Ex Officio)

RALPH M. HALL, Texas

KAREN MCCARTHY, Missouri

THOMAS C. SAWYER, Ohio

EDWARD J. MARKEY, Massachusetts

RICK BOUCHER, Virginia

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

BOBBY L. RUSH, Illinois

ALBERT R. WYNN, Maryland

TED STRICKLAND, Ohio

PETER DEUTSCH, Florida

RON KLINK, Pennsylvania

JOHN D. DINGELL, Michigan,

(Ex Officio)

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3

C O N T E N T S

Page

Testimony of:

Adelman, David E., Project Attorney, Natural Resources Defense Council 43

Beedle, Ralph, Senior Vice President and Chief Nuclear Officer, Nuclear

Energy Institute ............................................................................................ 38

Dicus, Hon. Greta Joy, Chairman, Nuclear Regulatory Commission .......... 8

Fields, Hon. Timothy, Jr., Assistant Administrator for the Office of Solid

Waste and Emergency Response, Environmental Protection Agency ...... 25

McGaffigan, Hon. Edward, Jr., Commissioner, Nuclear Regulatory Commission ........................................................................................................... 23

Merrifield, Hon. Jeffrey S., Commissioner, Nuclear Regulatory Commission ................................................................................................................. 24

Material submitted for the record by:

Dicus, Hon. Greta Joy, Chairman, Nuclear Regulatory Commission, letter

dated September 10, 1999, to Hon. Joe Barton, enclosing response

for the record ................................................................................................. 57

Fields, Hon. Timothy, Jr., Assistant Administrator for the Office of Solid

Waste and Emergency Response, Environmental Protection Agency,

letter dated September 22, 1999, to Hon. Joe Barton, enclosing response for the record ..................................................................................... 75

(III)

(1)

THE NUCLEAR REGULATORY COMMISSION

AUTHORIZATION ACT FOR FISCAL YEAR 2000

WEDNESDAY, JULY 21, 1999

HOUSE OF REPRESENTATIVES,

COMMITTEE ON COMMERCE,

SUBCOMMITTEE ON ENERGY AND POWER,

Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m., in room

2322 Rayburn House Office Building, Hon. Joe Barton (chairman)

presiding.

Members present: Representatives Barton, Stearns, Burr,

Whitfield, Shimkus, Bryant, Ehrlich, Hall, McCarthy, Sawyer, and

Markey.

Staff present: Kevin V. Cook, professional staff member; Betsy

Brennan, legislative clerk; Rick Kessler, minority counsel, and Sue

Sheridan, minority counsel.

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

Commerce Committee will come to order.

Today, we’re going to have a hearing on the reauthorization of

the Nuclear Regulatory Commission. The Commission has proposed

legislation reauthorizing its programs for the fiscal year 2000, as

well as making a number of policy changes affecting how the NRC

performs its regulatory responsibilities.

Congressman Hall and I have introduced, by request of the Commission and the President, the NRC proposal as H.R. 2531, the Nuclear Regulatory Commission Authorization Act for Fiscal Year

2000. Introducing legislation by request means that the sponsors

do not necessarily agree with every provision contained in a requested bill. In this specific case, I have serious reservations about

foreign ownership language, as it has been proposed by the NRC.

The hearing today may surface other areas of concern by members of the subcommittee. However, the proposal that has been introduced by Congressman Hall and myself does provide an excellent starting point for reauthorization legislation. The Nuclear Regulatory Commission performs a vital function for the nation, regulating the civilian use of nuclear materials and ensuring that public health and safety are fully protected. Because the NRC is funded almost entirely by user fees, it is essential that we renew the

authority to collect these fees so the Commission may continue to

perform its necessary functions.

The current authority expires at the end of September 1999, so

we have a limited time period available to enact legislation renewing the authority. This hearing will provide us with an opportunity

2

to address these changes that have been proposed by the NRC and

perhaps other changes to the authorizing statutes.

I would remind members of the subcommittee and the full Commerce Committee passed a similar reauthorization bill last year by

voice vote, but the bill unfortunately never came up for a vote on

the House floor.

The latest proposal from the NRC includes several provisions

that were not in last year’s bill. One of these is the foreign ownership provision that I’ve already mentioned earlier, and it is also

one which I oppose. We may find the rest of our members have

problems with this and other provisions of the bill.

Given our need to move the bill expeditiously to meet the September 30 deadline, I suggest that we follow the motto of keep it

simple. If we identify any controversial or problematic provisions

from our hearing today, my strategy and my advice to the subcommittee would be to delete those provisions prior to mark up.

Some of these issues are, no doubt, worth more debate. And some

may even be worth a separate hearing later in the year. External

regulation may be one such topic. Reform of the NRC regulatory

process may be another.

The Center for Strategic and International Studies is on the

verge of releasing a major study on the regulatory process for nuclear reactors. This study will identify problems and opportunities

for improvement. The study may be a useful jumping off point for

us to address NRC regulatory reform in more detail.

However, I again advise that we may want to defer some of the

more complex issues for the future and explore in today’s hearing

things that we can solve today.

Our first priority must be to reauthorize the user fee by the end

of September. Beyond that, we should include only those other legislative provisions that we can readily agree upon.

I want to welcome the Honorable Greta Dicus—am I saying that

right?

Ms. DICUS. That’s correct.

Mr. BARTON. Okay. The Honorable Greta Dicus is the new chairman of the NRC; and also welcome her colleagues—Commissioner

McGaffigan, Commissioner Merrifield. I know Commissioner Diaz

wanted to be with us, but he had a prior obligation to meet with

nuclear regulatory authorities in Mexico.

I also welcome the Honorable Tim Fields, Assistant Administrator for Solid Waste and Emergency Response at the EPA. I look

forward to hearing the testimony of all of our witnesses.

The Chair would recognize the distinguished ranking member,

Mr. Hall for an opening statement.

Mr. HALL. Mr. Chairman, thank you and thank you for covering

the hopefully important aspects of this hearing. As noted, by request, the two of us introduced a proposal to make a number of

changes in the Atomic Energy Act of 1954, and the Energy Reorganization Act of 1974 that the Nuclear Regulatory Commission believe would improve their operations; and we are going to have a

chance to examine those. And like you, I appreciate the importance

of the make up of the committee today to bring us first hand from

the very top what your needs are.

3

Specifically, I have some questions about changing the foreign

ownership of power reactors, the fee structure, and how these reforms are going to improve the efficiency and operation of the Commission in carrying out its licensing and regulatory functions on behalf of the United States nuclear industry.

As the responsible agency of the Federal Government for regulating the civilian use of radioactive materials, including industrial

applications, medical and academic uses, we have some questions

on this matter.

Mr. Dingell has raised some questions on several aspects of this

topic in a recent letter, and I am sure would be interested in the

Commission’s response to those issues.

With that, I just ask unanimous consent to put my entire statement in the record, and yield back my time.

Mr. BARTON. Without objection, so ordered.

The gentleman from North Carolina, Mr. Burr is recognized.

Mr. BURR. Thank you, Mr. Chairman.

Mr. BARTON. For an opening statement only.

Mr. BURR. I thank the chairman. I thank you for holding this

hearing on H.R. 2531.

Let me say that I am interested in hearing from both panels in

detail about the progress being made to assure that user fees paid

the NRCC—NRC—are devoted to regulation. Since its inception in

1990, some of NRC’s activities unrelated to the regulation of nuclear power plants have been paid for with user fees. Estimates on

the expenditures of user fees for unrelated programs is estimated

at near $50 million.

Even though the Appropriations Committee that has jurisdiction

over the NRC has urged the White House and the NRC to remove

these unrelated expenditures from user fees to licenses, the Administration and the OMB in particular have yet to accept this request. It has been noted that the NRC fiscal year 2000 budget recommendation to the OMB included a proposal that these unrelated

programs be funded—being funded by user fees be supported by

general fees. OMB is reported to have overruled this proposal.

Also, Mr. Chairman, I am concerned about the NRCC—the NRC

walking away from its responsibilities to regulate the disposal of

low activity radioactive waste produced——

Mr. BARTON. I think you meant NRC, not NRCC?

Mr. BURR. I canceled that last slip.

I am concerned about the NRC walking away from its responsibilities to regulate the disposal of low activity, radioactive waste

produced to support our atomic weapons program. I understand

that, with the NRC’s blessing, this radioactive material is being

sent to California and Idaho for disposal in standard landfills not

licensed by the NRC. I am interested in hearing the Commission’s

explanation for not regulating this nuclear waste.

Again, I thank the chairman for this hearing, and look forward,

and welcome our witnesses.

Mr. BARTON. Yes, the NRCC eliminated its low-level nuclear

waste program many years ago.

Now, I would like to welcome the gentlelady from Missouri, Ms.

McCarthy, for an opening statement.

4

Ms. MCCARTHY. Thank you, Mr. Chairman, and I would request

that I could revise and extend my comments. I will be very brief

this morning. I thank you.

Mr. BARTON. Without objection.

Ms. MCCARTHY. Thank you very much for this hearing and look

forward to the discussions that we will have, and I am particularly

interested in your thoughts—our panelists’ thoughts—and justifications for those sections which do call for ending the on record hearing requirements for allowing foreign ownership of nuclear facilities and centralizing the anti-trust review process. Those three sections I am concerned about, and how, as you address them, you

plan to protect the consumers. And I do share the chairman’s concern that we advance wisely on these as we look to these issues of

disclosure and equity; and that must be the foundation of our actions as we reauthorize this most important act.

I look forward to the testimony today, Mr. Chairman, and will

revise my remarks and submit them appropriately.

Mr. BARTON. The Chair recognizes the former Congressman, Mr.

Chapman, from the great State of Texas, whose cell phone rang as

soon as he walked in the room a minute ago, so he had to step outside. Glad to have you with us.

Lukewarm applause from the Republican side.

The gentleman from Kentucky, Mr. Whitfield, is recognized for

an opening statement.

Mr. WHITFIELD. Mr. Chairman, thank you. I am glad to see you

in such good mood today. And I would just say——

Mr. BARTON. It is early.

Mr. WHITFIELD. We are running a little bit late today, so I am

not going to make a long opening statement. I am delighted we are

having this hearing. I have 1 of the 2 uranium enrichment plants

in the country in my district, and do have a few questions about

some of your proposed changes for the NRC. I would yield back the

balance of my time.

Mr. BARTON. I thank the gentleman. The gentleman from Ohio,

Mr. Sawyer, is recognized for an opening statement.

Mr. SAWYER. Mr. Chairman, I thank you for holding this hearing.

I look forward to the testimony from our witnesses. I would like to

associate myself with everything that has been said so far, and

yield back the balance of my time.

Mr. BARTON. The gentleman from Tennessee, Mr. Bryant, is recognized.

Mr. BRYANT. To continue rolling on this, I think we are all interested in hearing from this panel. I would simply thank you for

holding this hearing, and I do want to associate myself with the remarks specifically of Mr. Burr, in this case, and yield back the balance of my time.

Mr. BARTON. The gentleman from Massachusetts, Mr. Markey, is

recognized for an opening statement.

Mr. MARKEY. Thank you, Mr. Chairman, and we welcome our

new Chair——

Ms. DICUS. Thank you.

Mr. MARKEY. [continuing] of the Nuclear Regulatory Commission.

Congratulations.

Ms. DICUS. Thank you.

5

Mr. MARKEY. You have already served on the Commission, and

you know that the Commission is buffeted by many winds, that you

are in the middle of a clamor on all sides. The nuclear industry is

crying that the burden of regulations must be jettisoned so that it

can sail swiftly in the competitive race. Neighbors of nuclear plants

are yelling that they risk being sunk in the environmental and

safety undertow.

Some of my colleagues are shooting shots across the bow, warning that industry must be left alone. I may even have had a word

of two on some of these subjects from time to time. And so, as you

take the helm, I offer you a simple compass point through the noise

and the distractions.

As you know, the sole purpose, the sole purpose of the Nuclear

Regulatory Commission is to ensure that our nuclear power plants

and other nuclear facilities are as safe as possible. The NRC was

deliberately split off from the old Atomic Energy Commission 25

years ago precisely so that it could have only one purpose. When

your licensees tell you that they cannot afford safety measures,

that they will have to shut down unless you save them from having

to spend more money on safety—you can sympathize, of course, but

their economic issues are not your problem. There is nothing wrong

with saving money and avoiding unnecessary expense, but that is

not your job. That is why we split it off 25 years ago.

I am deeply concerned that, as nuclear utilities rush to compete

in newly deregulated electricity markets, safety is being sacrificed.

And I am concerned that the NRC has not been sufficiently vigilant

in its oversight. For example, as utilities cut payrolls and shorten

plant outages, workers have been complaining about excessive

overtime. Plants are being run and repaired by workers who are

dead on their feet. Shortened plant outages and cost concerns also

are the reasons it is taking decades to fix faulty fire barriers in

plants throughout the country.

Utilities are even complaining about the expense of security

equipment and personnel to protect against terrorist attack. Faced

with realistic drills that reveal security weaknesses, they have

sought not to increase security, but to end the drills. The NRC has

reacted by decreasing overtime inspections, giving licensees hundreds of exceptions to fire regulations, and suspending security

drills.

At the same time, the NRC is being accused, sometimes by its

own staff, of bowing to undue influence by the industry it is supposed to regulate, the NRC is relaxing Sunshine Act Rules, which

were intended to ensure that the public business is conducted in

public view.

The NRC actually has revived a rule it had left for dead 14 years

ago that would allow the Commission to meet in secret, without a

recording or a transcript, and perhaps without any record that the

meeting occurred as long as there is not an intent to discuss final

decisions.

The proposed rule presumes the public will keep its ‘‘Eyes Wide

Shut’’ on nuclear safety. This is the context in which we look at the

authorization bill, H.R. 2531.

I certainly support making sure that the NRC has sufficient

funds to carry out its public safety mandate, and I am happy to

6

support additional security authority that the NRC seeks. But it

seems to me that allowing foreigners, possibly even Iraq and Iran,

to own a nuclear power plant on our soil will add another threat

to our security. Taking hearings off the record would send another

signal that the Commission seeks to operate by secrecy and stealth

rather than transparency and openness. And running roughshod

over EPA’s standards for Superfund sites suggests that those who

live near a nuclear plant do not deserve the same environmental

protection which neighbors of chemical plants receive. I have concerns about a number of other provisions in this bill

and several other aspects of NRC’s current oversight of its licensees. I intend on pursuing them both in this hearing, and, if possible, with you personally so that I can raise my concerns and see

how the NRC is going to deal with them.

I thank you, Mr. Chairman.

[The prepared statement of Hon. Edward J. Markey follows:]

PREPARED STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MASSACHUSETTS

Thank you, Mr. Chairman.

I would like to warmly welcome our new Chairman of the Nuclear Regulatory

Commission, Ms. Greta Joy Dicus. I look forward to working closely with you. Since

you have already served a few years on the Commission, you know that the Commission is buffeted by many winds, that you are in the middle of a clamor from all

sides. The nuclear industry is crying that the burden of regulations must be jettisoned so it can sail swiftly in the competitive race. Neighbors of nuclear plants are

yelling that they risk being sunk in the environmental and safety undertow. Some

of my colleagues are shooting shots across the bow, warning that industry must be

let alone. I may even have a word or two to say to you from time to time.

And so as you take the helm, I offer you a simple compass point through the noise

and the distractions. As you know, the sole purpose of the NRC is to ensure that

our nuclear power plants and other nuclear facilities are as safe as possible. The

NRC was split off from the rest of the old Atomic Energy Commission precisely so

that it could have that one purpose. When your licensees tell you they cannot afford

safety measures, that they will have to shut down unless you save them—you can

sympathize, of course, but their economic issues are not your problem. There is

nothing wrong with saving money and avoiding unnecessary expense, but we must

not sacrifice safety on the altar of profit.

I am deeply concerned that as nuclear utilities rush to compete in newly deregulated electricity markets, safety is being sacrificed, and I am concerned that the

NRC has not been sufficiently vigilant in its oversight. For example, as utilities cut

payrolls and shorten plant outages, workers have been complaining about excessive

overtime. Plants are being run and repaired by workers who are dead on their feet.

Shortened plant outages and cost concerns also are the reasons it is taking decades

to fix faulty fire barriers in plants throughout the country. Utilities are even complaining about the expense of security equipment and personnel to protect against

terrorist attack—faced with realistic drills that reveal security weaknesses, they

have sought not to increase security but to end the drills. The NRC has reacted by

decreasing overtime inspections, giving licensees hundreds of exceptions to fire regulations, and suspending security drills.

At the same time that the NRC is being accused—sometimes by its own staff—

of bowing to undue influence by the industry it is supposed to regulate, the NRC

is relaxing Sunshine Act rules intended to ensure that the public business is conducted in public view. The NRC actually has revived a rule it had left for dead fourteen years ago that would allow the Commission to meet in secret without a recording or transcript and perhaps without any record that the meeting occurred, as long

as there is no intent to discuss final decisions. This proposed rule presumes the public will keep its ‘‘Eyes Wide Shut’’ on nuclear safety.

This is the context in which we look at the authorization bill, H.R. 2531. I certainly support making sure that the NRC has sufficient funds to carry out its public

safety mandate. And I am happy to support additional security authority that NRC

seeks. But it seems to me that allowing foreigners—possibly even Iraq or Iran to

own a nuclear plant on our soil will add another threat to our security. Taking hearVerDate 27-JAN-2000 14:51 Feb 01, 2000 Jkt 010199 PO 00000 Frm 00009 Fmt 6633 Sfmt 6621 E:\HEARINGS\58507 txed02 PsN: txed02
7

ings off the record would send another signal that the Commission seeks to operate

by secrecy and stealth rather than transparency and openness. And running roughshod over EPA’s standards for Superfund sites suggests that those who live near

a nuclear plant do not deserve the same environmental protection which neighbors

of chemical plants receive.

I have concerns about a number of other provisions in the bill and about several

other aspects of NRC’s current oversight of its licensees, and I hope to explore some

of them in questions. But mostly I hope that our new Chairman will keep a steady

hand on the tiller and guide the Commission and the industry always in the direction of greater public health and safety and environmental protection.

Mr. BARTON. Thank you, Congressman Markey. The gentleman

from Illinois, Mr. Shimkus, for an opening statement.

Mr. SHIMKUS. Thank you, Mr. Chairman, I also want to associate

my comments with Congressman Burr, and I want to focus on the

user fee issue. Truth in budgeting, I think this Congress has——

Mr. BARTON. Could we have order so that Mr. Shimkus’ opening

statement can be heard, please?

Mr. SHIMKUS. Gosh. Thank you, Mr. Chairman.

But we have cast a lot of votes since I have been a member on

pulling trust funds off budget—the Highway Trust Fund, the Aviation Trust Fund. We believe we have done that with Social Security. I think the standards as we continue to do—move to truth in

budgeting, those standards should also filter down through agencies and commissions. That brings up the question about the use—

the fees collected to the NRC and—for operation or programs

versus the regulatory aspects. I know there is some questions out

there, and so I will be listening for in your comments and statements and probably follow up with some questions later on. But I

think if we are willing to start pulling apart the budgetary process

so that the public understands where our fees are collected and

where they are going to, I think the commissions and agencies of

this government also should do the same. And so I look forward to

the hearing, and I yield back my time, Mr. Chairman.

Mr. BARTON. Now the distinguished vice chairman, Mr. Stearns

of Florida, for an opening statement.

Mr. STEARNS. I thank my colleague and the chairman. I have no

opening statement, and I look forward to the hearing.

Mr. BARTON. Okay. Hearing—seeing no other members present

that wish to make an opening statement, all members not present

that do come to the hearing will have their statements in the

record.

[Additional statements submitted for the record follow:]

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

Thank you, Chairman Barton. Nuclear energy plays an important role in our everyday lives, from providing a reliable and emission-free source of electricity to

bringing us many life-saving technologies in the medical field. The Nuclear Regulatory Commission has the responsibility to ensure that these nuclear reactors and

nuclear materials are used in a safe and responsible manner. The Commission also

plays a critical role in the Yucca Mountain repository for high-level radioactive

waste, and, as the Commerce Committee considers ways to reorganize the troubled

Department of Energy, the NRC may become involved in the external regulation of

some of those DOE facilities and operations. The Commission also provides invaluable assistance to other Federal agencies and to international partners on matters

of nuclear safety. I would encourage the Subcommittee to move promptly on legislation reauthorizing the NRC. As the annual operations of the NRC are funded almost

entirely by fees paid by the reactor and materials licensees, it is critical that we

renew the authority for the NRC to collect such user fees. We have only 10 weeks

8

left before the current authority expires, so I hope the Subcommittee will move this

bill expeditiously.

Certainly give serious consideration to the other elements in NRC’s legislative

proposal. Many of these ideas have merit, and were part of H.R. 3532 as reported

out of the Commerce Committee last year. But I urge the Members not to get so

wrapped around some of the more difficult issues that we lose sight of our primary

objective, which is to make sure that NRC can collect the user fees so it stays in

business next year.

I look forward to hearing the testimony of the Commissioners, and of the other

witnesses before us today.

PREPARED STATEMENT OF HON. PETER DEUTSCH, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF FLORIDA

Mr. Chairman, thank you for holding today’s hearing on H.R. 2531, The Nuclear

Regulatory Commission Authorization Act for Fiscal Year 2000. In reviewing the list

of witnesses today, I look forward to hearing from the Nuclear Regulatory Commission (NRC) on the regulation of byproduct materials under Section 11(e)(2) of the

Atomic Energy Act. I understand that a ruling by the NRC is permitting the disposal of low level radioactive waste into standard landfills not licensed by the Commission. I am also aware that Ranking Member Dingell recently wrote the Commission on this subject with a request that the NRC respond by Thursday, July 22,

1999. As the disposal of radioactive waste in unlicensed standard landfills is of great

concern to many Americans, I look forward to hearing from the NRC on this important health and safety matter.

Mr. BARTON. Without objection at this point in the record, we

would now like to welcome the Commissioner and Mr. Fields. We

are going to recognize the distinguished chairwoman, Commissioner Dicus. I understand that Commissioner Merrifield and Commissioner McGaffigan also have a brief statement. And Mr. Fields,

and then we will take questions from the panel. So, Chairwoman,

we welcome and you are recognized for such time as you may consume.

STATEMENTS OF HON. GRETA JOY DICUS, CHAIRMAN; ACCOMPANIED BY HON. EDWARD MCGAFFIGAN, JR., COMMISSIONER; HON. JEFFREY S. MERRIFIELD, COMMISSIONER,

NUCLEAR REGULATORY COMMISSION; AND HON. TIMOTHY

FIELDS, JR., ASSISTANT ADMINISTRATOR FOR THE OFFICE

OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

Ms. DICUS. Thank you, Mr. Chairman and members of the subcommittee. Of course, I am pleased to appear today to discuss the

NRC’s authorization for fiscal year 2000, as well as NRC’s legislative proposals. And as is noted, I have two of my colleagues with

me today—Commissioner Edward McGaffigan, to my left, and

Commissioner Jeffrey Merrifield, to my right. And is noted, Commissioner Diaz regretfully could not be with us today due to a prior

engagement.

As you know, the past year at the NRC has been a time of intense, but rather carefully structured change, both organizationally

and in our fundamental programs. These changes have been accelerated and enhanced by the constructive interest shown by our congressional oversight committees and by our other stakeholders.

I believe it is fair to say that our stakeholder interactions are

both more extensive and more productive than ever before. The

NRC is improving its internal efficiency and effectiveness, such as

streamlining its operations and consolidating its functions. We are

9

changing our regulations to be more risk informed. We have entered the first phase of implementing our new reactor oversight

process. We are making improvements in the areas of power reactor license renewal, license transfers, spent fuel dry cast storage,

decommissioning uranium recovery, fuel cycle facility and licensing,

and medical oversight.

We have streamlined our hearing process for reactor license renewals and license transfers. Our proposed fiscal year 2000 budget,

when adjusted for inflation, represents the lowest budget in the

last two decades.

Similarly, by the end of this fiscal year, our staffing levels will

be the lowest in 20 years. We also have integrated our performance

plan and our budget in a manner that links agency performance

goals, strategies, performance measures, and resources consistent

with the Government Performance and Results Act.

I would like to review very briefly and quickly the legislative proposals we have submitted for consideration of the 106th Congress.

We have urged the approval of several amendments that would

help to deter terrorist activity related to nuclear facilities and special nuclear materials: one, to authorize guards at Commission-designated facilities to carry and use firearms where needed, to prevent radiological sabotage or the theft of special nuclear materials;

two, to make it a Federal crime to bring unauthorized weapons or

explosives into NRC licensed facilities; and three, to clearly prohibit sabotage during the construction phase of production, utilization, and waste storage facilities.

We also have proposed a number of amendments to increase

Commission efficiency and flexibility. These include: first, to allow

continuation of a Commissioner’s service past term expiration

under certain circumstances, to maintain a Commission quorum,

and to offset delays in the confirmation process; two, provide flexibility on hearings associated with the Commission licensing of new

uranium enrichment facilities; three, to make explicit that a combined construction and operating license would allow up to 40

years of operation; and four, to eliminate the requirement for an

NRC office in the District of Columbia.

Two proposed amendments would eliminate what we feel are duplicative regulatory roles. One is to eliminate NRC’s anti-trust reviews; and two, establish NRC and Agreement State jurisdiction

over radiological clean-up criteria for facilities that are licensed by

the Agreement States or the NRC.

Now, the final two proposed amendments would relax what we

feel are either unnecessary or outdated provisions. One, which has

already been mentioned, eliminating prohibitions on foreign ownership of power or research reactors; and two, providing general gift

acceptance authority commensurate with the provisions that other

agencies have.

I would like now to take this opportunity to acknowledge and

thank you for your efforts, Mr. Chairman, in introducing, by NRC

request, and to Congressman Hall both our reauthorization bill and

our legislative proposals. And moreover, I would like to thank all

of the members of this subcommittee for the sustained interest that

you have taken in supporting and improving the NRC. We value

10

your continued interest and your support, and I thank you very

much.

[The prepared statement of Greta Joy Dicus follows:]

PREPARED STATEMENT OF GRETA JOY DICUS, CHAIRMAN, NUCLEAR REGULATORY

COMMISSION

INTRODUCTION

Mr. Chairman and members of the Subcommittee, the Commission is pleased to

appear before you to discuss the agency’s authorization for Fiscal Year (FY) 2000

as well as the NRC’s legislative proposals. I am pleased to be accompanied today

by my colleagues, Commissioner Edward McGaffigan, Jr., and Commissioner Jeffrey

Merrifield. Commissioner Nils Diaz regretfully was unable to attend today due to

prior engagements. I will begin by providing the Subcommittee with a summary of

ongoing NRC efforts designed to increase our efficiency and effectiveness in nuclear

safety regulation.

SUMMARY

The highest NRC priority is to fulfill our fundamental mission of ensuring the

adequate protection of public health and safety and the environment. Our main

focus in FY 2000 will be to achieve the following performance goals for our regulatory program: maintaining safety; reducing unnecessary regulatory burden; enhancing public confidence; and increasing our operational effectiveness, efficiency,

and realism. Congressional and stakeholder interest has served to reinforce, accelerate, and expand our efforts to review and improve our regulatory programs, and

to pursue further change to achieve these four performance goals.

The NRC is improving its internal efficiency and effectiveness, streamlining its

operations, and consolidating its functions. We are changing our regulations to be

more risk-informed. We are making improvements in the areas of power reactor license renewal, license transfers, spent fuel dry cask storage, decommissioning, uranium recovery, fuel cycle facility licensing, and medical use. We have streamlined

our hearing process for reactor license renewals and license transfers, and are considering broader changes. We are consolidating and streamlining NRC organizations

and operations. We also have integrated our Performance Plan and our budget, in

a manner that links agency performance goals, strategies, performance measures,

and resources, consistent with the Government Performance and Results Act

(GPRA).

Significant Accomplishments

In testimony last year, the Commission described a broad range of proposed improvements to our regulatory programs. Examples of the substantial progress we

have made since that time include the following:

• Developing a comprehensive revision to the NRC reactor assessment, inspection,

and enforcement programs;

• Establishing and adhering to an aggressive schedule for processing license renewal and license transfer applications;

• Issuing guidance for streamlining NRC adjudicatory proceedings;

• Providing expanded opportunities for stakeholder participation in NRC

rulemakings, policy development, and program changes;

• Approving the issuance of proposed risk-informed, performance-based regulations

for medical use, fuel cycle facilities, and high-level waste disposal, and taking

initial steps toward risk-informing our reactor regulations;

• Completing research to support the revision of an industry standard on reactor

pressure and temperature limits, which would reduce licensee burden by expanding the operational window for plant startups and shutdowns.

• Reducing unnecessary NRC and licensee burdens associated with low-level enforcement issues;

• Determining, in a timely fashion, that the proposed privatization of the U.S. Enrichment Corporation met regulatory requirements;

• Completing the review of several dual-purpose spent fuel cask designs;

• Realigning the three major NRC program offices, achieving an overall 8:1 staffto- manager ratio, and reducing our overall staffing and resource requirements;

and

• Achieving Year 2000 readiness in NRC information systems, 54 days ahead of

schedule, and overseeing the successful industry efforts to ensure Y2K readiness for all nuclear power plant systems that support safe plant operations.

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Planning, Budgeting, and Performance Management Implementation

As part of our efforts to ensure the effectiveness and efficiency of agency oper- ations, as well as our implementation of GRPA, the NRC has implemented the Planning, Budgeting, and Performance Management (PBPM) process. The result has

been (1) the establishment of a sensible, reliable process for defining agency goals

and establishing strategic direction; (2) cost-effective strategies for achieving those

goals; (3) effective resource allocations linked directly to implementing our strategic

direction; and (4) the ability to measure and assess our progress and overall performance. This system both fosters the flexibility needed to respond to emerging

changes and ensures the durability of current regulatory reforms. The NRC has continued to make significant progress in implementing the PBPM process. Revisions to the NRC Strategic Plan and the development of the integrated

FY 2000 Budget/Performance Plan were the initial PBPM efforts. The integrated FY

2001 Budget Request/FY 2001 Performance Plan will reflect the continued evolution

of this process. An evaluation of the NRC’s PBPM process conducted by an external

consultant found that the process is sound and that it has improved our integrated

planning process. We are continuing to refine the implementation of the PBPM process in order to strengthen the linkage between our performance goals, strategies, and resource requirements in developing our FY 2001 budget request. A review of the initial NRC

Strategic Plan (FY 1997-FY 2002) was conducted during the Fall of 1998. As a result of that review, the agency is further refining the Strategic Plan to reflect our

regulatory reform efforts. The Office of Nuclear Reactor Regulation, aided by an external consultant, initiated a systematic review of the desired outcomes and specific

measurements for success. The same disciplined review has since been completed

in the Office of Nuclear Regulatory Research and in the Office of Nuclear Material

Safety and Safeguards (high-level waste program). These efforts have identified performance goals and strategies, and those key activities that contribute most to meeting our goals.

Progress on Streamlining the Organization

As part of our effort to be more effective and efficient and to reduce supervisory

overhead, the Commission has realigned its major program offices. As an examples,

the Office of Nuclear Reactor Regulation (NRR) has reduced from seven divisions

to five, resulting in a net reduction of 15 supervisory positions. The other major program offices have achieved similar reductions, and we have reduced overhead even

further by eliminating the Office for Analysis and Evaluation of Operational Data

(AEOD) and transferring its functions to other offices. In total, these and other NRC

office realignments will result in the elimination of 88 managerial and supervisory

positions.

The Commission has made notable progress in improving the NRC staff-to-manager ratio. When this effort was initiated in September 1993, the NRC had slightly

over 700 managers and supervisors. That number has steadily declined, and the realignments described above will reduce it to about 330 by the end of FY 1999, thereby achieving our stated goal of an 8:1 staff-to-manager ratio.

We also have continued to reduce at a controlled pace the overall number of NRC

employees, expressed in terms of full-time equivalent (FTE) staff years, using

buyouts, early retirements, and attrition. By the end of this fiscal year, actual NRC

staffing levels are projected to be approximately 2835 FTE, the lowest level in more

than 20 years, down 600 FTE since 1993. The NRC FY 2000 budget request of

$471.4 million and 2810 FTE, as submitted to Congress, will allow us to continue

the important regulatory changes discussed in this testimony, while continuing to

ensure the fulfillment of our public health and safety mission. We will continue to

look for ways to increase operational and regulatory efficiency; however, further reductions may not be possible without compromising our fundamental mission.

Legislative Proposals

The Commission has submitted a number of legislative proposals for the consideration of the 106th Congress. We are pleased to acknowledge that the Chairman of

this Subcommittee, Mr. Barton, has by NRC request introduced both our reauthorization bill and our legislative proposals. We urge the approval of several amendments that could help to deter terrorist activity related to nuclear facilities and special nuclear material: (1) to authorize guards at Commission-designated facilities to

carry and use firearms where needed to prevent radiological sabotage of the facility

or to prevent theft of materials that could be used for nuclear explosives; (2) to

make it a Federal crime to bring unauthorized dangerous weapons or explosives into

NRC-licensed facilities; and (3) to clearly extend our prohibitions on sabotage to

cover the construction phase of production, utilization, and waste storage facilities.

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We also propose a number of amendments designed to increase Commission efficiency and flexibility: (1) allow continuation of a Commissioner’s service past term

expiration, under certain circumstances, to maintain a Commission quorum and to

offset delays in the confirmation process; (2) provide flexibility on hearings associated with Commission licensing of uranium enrichment facilities; (3) make explicit

that the duration of a combined construction and operating license would allow up

to 40 years of operation; and (4) eliminate the requirement for the NRC to maintain

an office in the District of Columbia. Two proposed amendments are designed to

eliminate duplicative regulatory roles: (1) eliminating NRC antitrust reviews; and

(2) establishing NRC and Agreement State jurisdiction over radiological cleanup criteria for facilities licensed by them. The last two amendments would relax unnecessary or outdated provisions: (1) eliminating prohibitions on foreign ownership of

power and research reactors; and (2) providing general gift acceptance authority

commensurate with the provisions of other agencies.

FY 2000 AUTHORIZATION REQUEST HIGHLIGHTS

On May 4, 1999, the NRC submitted proposed legislation which would authorize

appropriations for FY 2000. The proposed legislation would authorize an FY 2000

NRC budget of $471,400,000, including $465,400,000 for Salaries and Expenses Appropriation, and $6,000,000 for the Inspector General Appropriation. The NRC continues to recognize the high priority on reducing Federal spending emphasized by

the Administration and the Congress. This budget, when adjusted for inflation, represents the lowest budget in the history of the NRC—a 25 percent reduction over

the past seven years. In spite of the constrained fiscal environment, this budget

fully supports the NRC ability to fulfill our fundamental health and safety mission,

while continuing the most comprehensive reform effort in the history of the agency.

Again, however, we urge caution in contemplating further reductions. A budget

summary is located in Appendix (1).

The resources for the Nuclear Reactor Safety Arena support a comprehensive oversight program, including reactor inspection and reactor licensing activities for 103

operating reactors and a safety research program. The reactor oversight program

will continue to bear a strong relationship to facility performance. However, we expect that these programs will change as a result of our on-going reevaluation of the

reactor regulatory program. In anticipation of these changes, a reduction in event

assessment/incident response activities has been included in the budget estimates.

In addition, the budget estimates reflect anticipated reductions in reactor inspection

activities due to continued improved plant safety performance and expected efficiencies to be gained from improvements in the inspection process. The budget includes funding for the review of two new reactor license renewal applications in FY

2000.

The Nuclear Materials Safety Arena supports an increase primarily from costs associated with making our materials, fuel cycle, and waste regulations more risk-informed and, where appropriate, performance-based; development and implementation of the new NRC registration program for certain industrial devices; initiation

of research into the development and demonstration of risk assessment methods for

dry cask storage; and enhanced efforts to develop the technical basis for performance criteria of dry storage casks under seismic loading conditions. The increase is

partially offset by reductions associated with Ohio becoming an Agreement State.

The Nuclear Waste Safety Arena supports an increase primarily in the NRC highlevel waste repository program activities, and ongoing decommissioning activities to

work off the licensing backlog, to complete the Standard Review Plan for decommissioning, and to support an increased level of rulemaking activity. The increase is

partially offset by a reduction in the number of inspections needed at uranium recovery facilities.

The International Nuclear Safety Support Arena reflects a change in how program

funding is obtained. For FY 1999, the NRC renegotiated its reimbursable agreements with the Agency for International Development (AID) to recover NRC FTE

costs for providing nuclear safety assistance to the countries of the Former Soviet

Union (FSU). In FY 2000, the NRC will include the AID-related FTE costs for support of FSU and Central and Eastern European countries within the general fund

portion of the requested appropriation.

The Management and Support Arena supports a decrease primarily based on

agency-wide program reductions and efficiencies. Funding also decreases in information technology and management, as investments in the design and start-up of the

Agency-Wide Document Access and Management System (ADAMS) are completed

and the agency moves to a new integrated financial and resource management system (STARFIRE).

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User Fees

The Omnibus Budget Reconciliation Act of 1990 currently requires the NRC to collect approximately 100 percent of its budget (less the appropriations from the Nuclear Waste Fund) from user fees. This requirement expires at the end of FY 1999

and reverts to 33 percent. The NRC’s authorization bill, which is consistent with

the President’s budget, includes a legislative proposal to extend the requirement for

100 percent fee recovery through FY 2004. The Commission continues to be sensitive to the fairness and equity concerns that 100 percent fee recovery entails for

our licensees. Our authorization bill also will permit the NRC to charge other Federal agencies Part 170 inspection and licensing fees, thereby helping to mitigate, to

a very small degree, some of the fairness and equity concerns expressed by the

NRC, the Congress, and NRC licensees. The discussions that follow provide the Subcommittee with further details of

NRC’s program activities and a description of our legislative recommendations.

SUMMARY OF PROGRAM ACTIVITIES BY ARENA

NUCLEAR REACTOR SAFETY

In the nuclear reactor arena, maintaining the safety of 103 operating nuclear power reactors remains our highest priority. In this context, the Commission intends to reinforce, accelerate, and expand efforts to improve NRC efficiency and effectiveness, to streamline our operations, and to consolidate our functions where appropriate. We are committed to making these improvements without compromising

our mission of protecting public health and safety and the environment. We also are

committed to the goal of using risk information and risk analysis as part of a policy

framework that applies to all phases of our nuclear regulatory oversight, including

licensing, inspection, assessment, enforcement, and rulemaking.

Risk-Informed, Performance-Based Regulation

The Commission is making substantial modifications to the NRC regulatory ap- proach to become more risk-informed and, where appropriate, performance-based; to

enhance our safety focus; to eliminate unnecessary regulatory burden; to improve

the effectiveness, efficiency, predictability, and transparency of our processes; and

to maintain public confidence in what we do. Recent accomplishments include increasing stakeholder involvement, refining NRC internal practices, completing NRC

pilot programs, and laying the foundation for risk-informing NRC reactor regulations over the longer term.

Reactor Performance Assessment, Inspection, and Enforcement (The Oversight Proc- ess)

As previously stated, the Commission is taking a more risk-informed and, where appropriate, performance-based approach in the oversight of nuclear reactors. We

have made considerable progress in identifying necessary changes to the assessment, inspection, and enforcement processes to improve their objectivity; to make

them more understandable, predictable, and risk-informed; and to focus on aspects

of performance that have the greatest impact on safe plant operation. These efforts

have been guided, in part, by four performance goals, as previously stated, used as

‘‘filters’’ to evaluate, prioritize, and sunset activities. Each activity is examined to

see how it: (1) maintains public safety; (2) eliminates unnecessary NRC and licensee

burden; (3) enhances public confidence; and (4) makes NRC activities more effective,

efficient, and realistic.

The NRC staff has proposed to the Commission a new power reactor assessment

framework, which builds upon the cornerstones of licensee performance that must

be monitored to ensure that nuclear power reactor operations do not pose unacceptable risks to the public. The cornerstones support the NRC mission by ensuring

that: (1) initiating events are reduced; (2) mitigation systems are available, reliable,

and capable of performing their intended functions; (3) barriers are sufficient to

limit the release of radioactivity; (4) adequate emergency preparedness functions are

maintained; (5) licensees have implemented adequate programs to protect the public

and workers from radiation; and (6) security measures are in place to protect

against radiological sabotage. As part of the assessment framework, the NRC staff

has identified performance indicators, performance indicator thresholds, and risk-informed inspections that would supplement and verify the validity of the performance indicator data.

This assessment framework provides a natural basis for a risk-informed baseline

inspection program, one that identifies the minimum level of inspection required, regardless of licensee performance, to ensure adequate NRC oversight and independent assessment of licensee performance. Developed using a risk-informed apVerDate 27-JAN-2000 14:51 Feb 01, 2000 Jkt 010199 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 E:\HEARINGS\58507 txed02 PsN: txed02
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proach, the proposed baseline inspection program includes a comprehensive list of

inspectable areas within each cornerstone of the assessment framework. The Commission also has developed an interim Enforcement Policy that is integrated with

the risk-informed inspection and assessment processes.

The new reactor oversight process will integrate assessment of the performance

indicators with the results of the risk-informed baseline inspections. This integration will allow the NRC to make objective, predictable, and timely conclusions regarding licensee safety performance, and to communicate these results effectively to

the licensees and to the public. The process includes specific thresholds—tied to the

cornerstones of safety—that will trigger commensurate licensee and/or NRC action

if they are exceeded.

We have made considerable progress in reshaping these NRC regulatory programs. Pilot inspections were begun in June 1999. Our intent is to make major process changes incrementally, to allow testing and adjustment during piloting and implementation. Much of the work that remains in FY 1999 and FY 2000 relates to

bench-marking, conducting pilots, developing procedures, and training the NRC

staff in the new processes.

Enforcement Program Changes

In parallel with these long-term improvements to the oversight process, the NRC

has made several short-term changes to its enforcement program to reduce unnecessary NRC and licensee burden. On July 27, 1998, we issued enforcement guidance

to clarify our existing Enforcement Policy. The changes ensure that: (1) licensees are

given appropriate credit for identifying and correcting violations; (2) NRC and licensee resources are not expended on violations that do not warrant formal citations; (3) written responses to Notices of Violation are not required when necessary

information already is docketed elsewhere; and (4) cases involving multiple examples of the same violation are treated consistently. The agency-wide implementation

of this guidance has resulted in a significant reduction in the number of low-level

(Severity Level IV) violations, which otherwise would absorb NRC and licensee resources in amounts disproportionate to the safety significance of the violations.

On January 22, 1999, the Commission approved a change to the Enforcement Policy that will expand the use of non-cited violations. The change was published in

the Federal Register February 9, 1999, and became effective March 11, 1999. Except

in limited circumstances, individual Severity Level IV violations now will not be

cited, so long as they have been entered into the licensee corrective action program.

Accordingly, the NRC inspection program will place more emphasis on assessing the

effectiveness of licensee corrective action programs. This is consistent with the

thrust of the risk-informed inspection process described earlier. In addition, in June

1999, the Commission approved changes to the Enforcement Policy that will address

the use of risk considerations in enforcement decisions and eliminate the use of

‘‘regulatory significance,’’ which was not well-defined as an escalating factor for certain enforcement actions.

Reactor Licensing

By better focusing resources and improving internal procedures, the NRC has

greatly reduced its licensing action backlog in FY 1999, and expects to eliminate

this backlog completely in FY 2000. We are working with our stakeholders to improve the license amendment review process and shorten the review time. We have

also initiated improvements to our 10 CFR 2.206 process for allowing the public to

petition the NRC to take certain actions at licensed facilities.

As part of our commitment to risk-informed regulation, we have changed internal

NRC operating practices. This has included providing additional guidance, training,

and management attention to ensure that risk-informed licensing actions are given

the appropriate priority. The completion of numerous plant-specific risk-informed licensing reviews in FY 1999 has helped to sharpen the focus on safety while reducing unnecessary regulatory burden. We also have worked to improve and clarify our

requirements and guidance for facility changes, as well as our guidance for maintaining updates to plant final safety analysis reports (FSARs), which are used as

reference documents for safety analyses. The Commission considers the progress

made to date in these areas a significant regulatory success, because the NRC and

many of its stakeholders worked closely in developing processes that both maintain

safety and eliminate unnecessary NRC and licensee burden.

The NRC has improved the timeliness of reviews for converting power reactor licenses to improved standard technical specifications. This conversion improves consistency in interpreting and applying these requirements. In total, licensees for approximately 89 reactors have decided to convert to the new technical specifications,

which licensees have projected will save from $150,000 to over $1,000,000 annually

15

per site. To date, applications to convert have been received from 58 units, of which

49 units have been given approval, 23 since July 1998, which has eliminated the

large backlog of applications under review over the last two years. We expect to

issue approvals for an additional 4 units during the remainder of FY 1999. Work

on applications will continue through FY 2000.

Reactor License Renewal

Establishing a stable, predictable, and timely license renewal process is a top

NRC priority. The Commission has issued a policy statement laying out its expectations for a focused review of license renewal applications, built upon our license renewal regulations. To date, all milestones for the license renewal reviews have been

met. Using case-specific orders, the Commission has established an aggressive but

reasonable adjudicatory schedule for reviewing the Calvert Cliffs and Oconee applications. Revised goals are to complete the license renewal process in 30 months. We

also have prepared procedures to control the reviews and to resolve generic renewal

issues. NRC management meets monthly with the applicants to monitor progress

and the resources expended, and to resolve renewal issues.

We also understand that we will receive the next license renewal application in

December 1999 from Entergy for their Arkansas Nuclear One plant. Other applications from the Hatch and Turkey Point plants are expected in 2000, and we have

asked for sufficient resources in our FY 2000 budget to handle the anticipated new

applications. Lessons learned from the initial reviews may help to streamline later

reviews even further.

License Transfers and Adjudicatory Processes

The Commission has issued a final rule to establish an informal streamlined hearing process for license transfers. Under this newly-adopted rule (Subpart M to 10

CFR Part 2), the Commission expects to complete informal hearings and issue final

decisions on most license transfer applications within about 6-8 months of when the

application is filed.

The NRC has completed final Standard Review Plans (SRPs) for antitrust and financial qualifications reviews, and a draft SRP for foreign ownership issues. A final

SRP for foreign ownership issues is currently being considered by the Commission.

SRPs document the process and criteria to be used by the NRC staff in performing

its reviews, which improves the focus, effectiveness, predictability, timeliness, and

efficiency of the process. In April 1999, the NRC completed its review and approval

of the license transfer requests for Three Mile Island Unit 1 and the Pilgrim station.

The Commission currently is developing a proposed rule that would provide a

more comprehensive streamlining of its adjudicatory processes. Concurrently, the

Commission has been monitoring closely its adjudicatory tribunals to ensure appropriate adherence to the substantive and schedular provisions of the Commission

Rules of Practice.

Reactor Safety Research

The NRC research program continues to contribute in a significant way to our

success in achieving performance goals in the reactor arena. Research efforts are

underway to resolve important safety issues such as the operation of air-operated

valves, which could result in a safety problem if key valves failed when called upon

to perform a safety function. The program also facilitates NRC support for industry

initiatives and contributes to the reduction of unnecessary burden. For example,

working cooperatively with the American Society of Mechanical Engineers (ASME),

NRC-sponsored research established the technical bases for changing the basic fracture toughness curves for determining nuclear plant pressure and temperature limits. This provided a significant burden reduction for the majority of operating plants.

In addition, current research is re-evaluating pressurized thermal shock for reactor pressure vessels (RPVs). Work in this area has shown significant potential for

reduction of unnecessary burden through technical advancements in materials assessment, fracture mechanics, and non-destructive evaluation. The research program also is enhancing our understanding of new nuclear technologies, such as proposals to increase fuel burn-up without increasing the risk to the public health and

safety. We are working to consolidate the several computer programs now used for

thermal-hydraulic and severe accident analysis. Our research also is supporting the

framework for moving to a more risk-informed and, where appropriate, performance-based regulatory approach through pioneering work in probabilistic risk assessment. Building on a long history of advancing PRA technology and recent successes such as risk-informing reactor piping inspection processes, we are focusing

our research efforts on providing the technical bases for risk-informing NRC’s reactor regulations.

16

Other Significant Reactor Rulemakings

The Commission also has underway other significant rulemakings affecting reactor licensees. The first is a revision to Appendix K of 10 CFR Part 50, which recognizes the ability of new flowmeter technologies to more accurately measure water

flow rates. We have informed OMB that this rule will likely constitute a major rule

because it will provide more than $100 million in annual benefits to our licensees,

by allowing them to increase their electrical generating capacity by one percent.

This is an example of NRC recognizing the advantage of updated technology.

The second rulemaking is a revision to Part 50 to allow reactor licensees to use

revised source terms in design basis accident radiological analyses. This rule is also

expected to reduce unnecessary regulatory burden, reduce worker radiation exposure, and improve overall safety. It is the result of extensive NRC research and

analysis over the past twenty years, which has led to a much better understanding

of accident source terms.

NUCLEAR MATERIALS SAFETY

In a manner similar to initiatives evolving in the reactor safety arena, we are enhancing our regulatory programs for nuclear materials safety. The NRC and Agreement States regulate more than 23,000 specific users of radioactive materials in

medical, academic, industrial, and commercial applications, in addition to more than

100,000 general licensees. Thirty States currently are Agreement States. Ohio is

likely to become an Agreement State later this year, with Oklahoma and Pennsylvania expected to become Agreement States in FY 2000, Minnesota in FY 2002, and

Wisconsin in FY 2003. Our testimony highlights some of the many and diverse program improvements underway in the nuclear materials arena.

Medical Regulation

The NRC staff is reviewing public comments on our proposed revisions to the

medical use regulations in 10 CFR Part 35. The revision of Part 35 will achieve several specific improvements in the medical use regulatory program. These improvements would make the rule more performance-based and would focus the regulations on medical procedures that pose the highest risk, from a radiation safety aspect, with a corresponding decrease in the oversight and regulatory burden for lower

risk activities. The proposed revision of the Medical Policy Statement and a proposed revision to Part 35 were published in the Federal Register for public comment

on August 13, 1998, and we have had the benefit of many stakeholder interactions

since that time. The Commission will be reviewing a final draft rule this summer,

and we expect to complete this rulemaking in early 2000.

The revisions to Part 35 are being developed using an enhanced participatory

process, which is intended to develop a final rule that will be accepted broadly, and

includes participation by several medical professional organizations, the Organization of Agreement States, the Conference of Radiation Control Program Directors,

the NRC Advisory Committee on the Medical Use of Isotopes, and other stakeholders. We have solicited early public input through Federal Register notices, public

meetings with medical professional societies and boards, open meetings of the

groups developing the revised policy statement and rule language, public workshops,

and Internet postings of relevant background documents.

Spent Fuel Storage

The NRC has made significant progress in its review of dual-purpose cask systems for spent fuel storage and transportation. By December 2000, we anticipate

that all six of the dual purpose cask system reviews in process and two of the transportation reviews should be completed.

The NRC issued a license to the DOE for the TMI-2 fuel debris storage facility

at the DOE Idaho Operations Office (DOE-ID) in March 1999. That same month,

we issued a license to Portland General Electric (Trojan) for an independent spent

fuel storage facility, and we expect to issue another to Rancho Seco prior to the end

of 1999. We transferred the Fort St. Vrain independent spent fuel storage installation license to the DOE-ID in June 1999. We will continue to maintain an aggressive licensing review schedule for the proposed Private Fuel Storage facility located

on the Skull Valley Band of Goshute Indian Reservation in Utah. We also are continuing to work with the DOE on projects involving spent fuel storage and management.

As in other arenas, we have worked to make our spent fuel storage oversight more

effective and timely while ensuring safety. We have initiated process changes to enhance and focus technical reviews, to develop guidance for those reviews, to reduce

the time-frame for storage cask certification rulemakings, to enhance our reviews

17

based on lessons learned, to ensure consistency in licensee change processes, and

to improve communication with internal and external stakeholders.

Mixed Oxide Fuel (MOX)

In accordance with the regulatory oversight responsibility for mixed oxide (MOX)

fuel assigned to the NRC in the Strom Thurmond National Defense Authorization

Act for Fiscal Year 1999 (Public Law 105-261), the Commission has initiated preparatory activities for the licensing of a MOX fuel fabrication facility and subsequent irradiation of the fuel in commercial reactors.

The Commission notes that the NRC FY 2000 budget request did not include resources to conduct work related to the DOE MOX fuel program because, at that

time, the NRC had planned to continue to carry out such work through its reimbursable agreement with the DOE. However, because Public Law 105-261 subsequently gave NRC the authority to license a MOX facility, this work is now a part

of the NRC mission. As a result, the NRC must use its appropriated funds to carry

out this effort, and will not continue its reimbursable agreement with the DOE. We

are making changes to our budget to accommodate this new responsibility.

These appropriated resources will be used to meet with the MOX applicant and

to review topical programs related to the license application for the fuel fabrication

facility, such as safeguards, criticality safety, radiation protection, and quality assurance, as well as early issues related to environmental review and the use of MOX

fuel in commercial power reactors. A license application is anticipated in November

2000, and, given current projections for the licensing review (including the completion of an environmental impact analysis), we would expect final licensing to occur

in FY 2003. We also have determined those aspects of MOX fuel irradiation that

necessitate beginning research in FY 2000 to support the licensing action.

External Regulation of the Department of Energy (DOE)

The Commission recognizes the position of the Secretary of Energy in his recent

letter to Congress, withdrawing support for external regulation of DOE facilities by

the NRC. However, based on the preliminary results of the pilot projects and our

observations to date, the Commission continues to believe that the NRC could regulate substantial portions of DOE in a manner that would be cost-effective and relatively straightforward, and that would accomplish the objectives of external regulation. The cost to the DOE could be minimized—and could even result in a net savings—by reducing the level of DOE oversight to a level consistent with a corporate

oversight model. The NRC had substantial technical and policy differences with the

views presented by the DOE in its March 31, 1999 report to Congress on the results

of the pilot program. Consequently, we did not concur in this report, and instead

have recently issued an independent report to Congress and other stakeholders.

Research Contributions

Research is contributing significantly to performance goals in the nuclear material

safety arena. For example, research provides the technical basis to address licensing

questions related to the structural integrity of dry cask storage systems. Research

also is being conducted to provide the technical basis to grant credit for fuel burnup in the licensing of spent fuel transportation casks.

Hanford Tank Waste Remediation System Program

The NRC continues to assist the DOE in its River Protection Project—Privatization (formerly known as the Hanford Tank Waste Remediation System (TWRS) program). In conjunction with this effort, we have recruited highly competent staff with

waste solidification and vitrification expertise and experience; gained extensive understanding of the DOE plans for removal and vitrification of the radioactive and

highly toxic wastes from the underground storage tanks; and developed a licensing

Standard Review Plan and regulatory basis for the possible future NRC licensing

of the DOE Hanford vitrification facility. However, the Department of Energy has

made significant changes in its approach to this project in the past year, which in

turn have significant implications for the timing of any NRC licensing of any phase

of this project. The Commission recently directed the staff to consult with the appropriate Congressional committees, including of course this committee, on how and

whether to continue NRC’s involvement in light of the DOE changes.

NUCLEAR WASTE SAFETY

The NRC has launched similar initiatives to improve the effectiveness and efficiency of our regulatory programs in the nuclear waste safety arena. The NRC continues to progress in its reviews and pre-licensing consultation under existing law

related to the DOE program to develop a high-level radioactive waste repository.

18

The Commission firmly believes that a permanent geologic repository is the appropriate mechanism for the nation ultimately to manage spent fuel and other highlevel radioactive waste (HLW). In accordance with the statutory direction in the Nuclear Waste Policy Act and the Energy Policy Act of 1992, the NRC, before licensing

a repository, must consult extensively with the DOE to develop a regulatory framework. Further, if the DOE recommends a site for a repository, the NRC must evaluate the adequacy of the DOE site characterization and waste form proposal. Ultimately, if the DOE submits a license application for a repository, the NRC must determine whether it can authorize repository construction, receipt of waste, and final

repository closure. The NRC is also making significant progress in its programs for

nuclear facility decommissioning, uranium recovery, and low-level waste management.

High-Level Waste—Yucca Mountain Status and Key Issues

In FY 2000, the NRC expects to finalize a performance-based regulatory framework by issuing 10 CFR Part 63. As called for by the Energy Policy Act of 1992,

Part 63 would implement health-based standards that would apply solely to the proposed Yucca Mountain repository. The proposed Part 63, which we published for

public comment on February 22, 1999, establishes licensing criteria to evaluate the

performance of the repository system at Yucca Mountain, Nevada. Over the course

of the public comment period (which was extended in response to stakeholder requests), we have conducted five public meetings in Nevada on the proposed technical criteria.

In parallel with the development of Part 63, the NRC continues to develop a

Yucca Mountain review plan and to resolve key technical issues to prepare for reviewing the DOE license application expected in 2002. These activities aid in the

ongoing review of the DOE draft license application and provide guidance to the

DOE on what is needed for a complete and high quality application. To that end,

we will continue to evaluate the implementation of the DOE quality assurance program. We expect to complete our review of the DOE draft Environmental Impact

Statement (EIS) for the Yucca Mountain site in FY 2000. The NRC staff has prepared a plan for EIS review that will include the consideration of public concerns

in the preparation of NRC comments.

Decommissioning Program

Decommissioning involves removing radioactive contamination in buildings,

equipment, groundwater, and soils to such levels that a facility can be released for

either unrestricted or restricted use. The NRC is continuing to encourage timely

cleanup of approximately 40 material and fuel cycle facility sites through the implementation of its Site Decommissioning Management Plan (SDMP). The NRC expects

to remove at least three sites from the SDMP list in FY 1999 and FY 2000. The

NRC also will continue to oversee the decommissioning of 19 commercial power reactors and hundreds of other licensed facilities. The NRC monitors licensee actions

to store or dismantle and decontaminate the facilities in a safe manner while maintaining the licensed configuration of the facility and managing the use of decommissioning funds as described in the regulations. The NRC will continue to enhance the

decommissioning program to add stability, predictability, and efficiency to the process by incorporating additional experience into rules and guidance documents.

In FY 1999, the NRC initiated the consideration of a rulemaking to establish criteria for release of solid materials with low levels of radioactive contamination, in

order to establish a regulatory framework more consistent with existing requirements for air and liquid releases. The process will include facilitated public meetings to obtain early stakeholder input on major issues associated with such a rulemaking, including conducting a scoping process related to the scope of environmental impacts. In addition, last month we published an issues paper in the Federal

Register for public review, to provide background information in preparation for

public workshops in the Fall of 1999 and analysis of stakeholder views in FY 2000.

In parallel with these activities, we will continue to develop the technical basis,

draft environmental impact statement, draft regulatory analysis, and draft regulatory guidance needed to accompany any proposed action.

In FY 2000, the NRC will finalize decommissioning guidance to provide an overall

framework for dose assessment and decision-making at sites undergoing decommissioning. We will continue development of a Standard Review Plan for decommissioning materials sites and power reactor license termination plans, to facilitate the

NRC staff review of licensee submittals in a manner that is timely, efficient, consistent, and ensures the protection of public health and safety. In addition, we will

continue a pilot study during FY 2000 involving five materials sites. Based on this

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experience, recommendations will be made to streamline the decommissioning submittal and review process for materials sites.

INTERNATIONAL NUCLEAR SAFETY SUPPORT

The NRC carries out a low-cost but high-impact program of international nuclear

safety activities that supports United States domestic and foreign policy interests

in the safe, secure, and environmentally acceptable use of nuclear materials, energy,

and in nuclear non-proliferation. This program ensures, through active participation

in mutually beneficial bilateral and other international efforts, that the NRC supports the U.S. policy of strengthening nuclear regulatory regimes abroad and fostering a global nuclear safety culture, as well as ensuring the security of strategic

special nuclear material.

The public and NRC licensees derive tangible and intangible benefits from these

international activities. Public confidence in nuclear energy as a technology is

strongly impacted by the public perception of how safely nuclear operations are conducted—whether domestically or abroad. In addition, as a major supplier of nuclear

fuel, equipment, and technical services, the United States depends on an orderly

and predictable export licensing regime to maintain marketability. NRC assistance

also helps in the prevention or mitigation of problems in countries with weak or embryonic nuclear safety and nuclear regulatory cultures. NRC participation in international safeguards and non-proliferation activities directly supports the assessment

of potential threats against the U.S.

Cooperation with foreign countries in the area of nuclear safety provides a considerably larger operational experience base than exists in the United States alone. As

one aspect of this cooperation, the NRC maintains extensive research agreements

with organizations in many foreign countries. This cooperative approach helps to leverage our research resources, and recognizes the inherently international character

of the nuclear business. The resultant resolution of safety issues leads to benefits

for the U.S. nuclear power industry and, more importantly, aids considerably in the

prevention of nuclear accidents in countries with weak or embryonic nuclear safety

cultures.

Export Licensing and Non-Proliferation Activities

The NRC reviews and takes action on approximately 75 to 100 import and export

license applications per year. In addition, the NRC actively participates in international export control through groups such as the Nuclear Suppliers Group and the

Zangger Committee, to ensure that export policies are consistent among nuclear

supplier states. The NRC also helps the U.S. to meet its obligations under Article

IV of the Nuclear Non-Proliferation Treaty, including support for bilateral and

International Atomic Energy Agency (IAEA) sponsored exchanges of equipment, materials, and scientific and technological information on the peaceful uses of nuclear

energy. Within the limits of available resources, the NRC also provides technical assistance to U.S. policy makers in connection with (1) the U.S.-Russia agreement to

make permanent the cessation of plutonium production for nuclear weapons; (2) the

U.S.-Russia-IAEA Trilateral Verification Initiative on excess weapons material; (3)

the process of making decisions on how to dispose of excess plutonium; and (4) the

Fissile Material Cut-Off Treaty. Finally, the NRC is working closely with the Executive Branch to facilitate the effective implementation of the Strengthened Safeguards System of the IAEA.

Bilateral and Multilateral Activities

Since the demise of the Soviet Union, particular emphasis has been placed by the

United States and the international community on addressing both nuclear safety

and nuclear materials safeguards concerns in the countries of the former Soviet

Union (FSU) and in central and eastern European countries (CEE). The NRC

strongly supports these efforts, and has focused its role primarily on strengthening

the nuclear regulatory authorities of these countries. We conduct programs (funded

primarily through the U.S. Agency for International Development (AID), DOD, and

DOE) to train regulators from FSU and CEE countries on the creation and/or

strengthening of their regulatory capabilities. We continue to see positive results

from our assistance efforts with the Russian, Ukrainian, Kazakh, Armenian, Czech,

Slovak, Lithuanian, Bulgarian, and Hungarian regulators. Much of this success can

be attributed to their own willingness and desire to enhance their nuclear safety

and regulatory infrastructure, and their growing expertise in the application of

Western safety and safeguards review tools.

20

Vice-Presidential Commissions

Two examples of high-level Commission opportunities to focus on nuclear safety with top U.S. and foreign government officials are the U.S.-Russian Joint Commission on Economic and Technological Cooperation, chaired by the U.S. Vice President

and the Russian Prime Minister, and the U.S.-South African Binational Commission

(BNC), chaired by the Vice President and the South African Deputy President. Both

commissions have achieved measurable results in enhancing nuclear safety, and we

look forward to continued cooperative efforts in this area.

International Safety Conventions

The NRC has worked extensively in the development of the Convention on Nu- clear Safety (CNS)—the first instrument to address directly the safety of nuclear

power plants worldwide. This Convention obliges contracting parties to establish

and maintain proper legislative and regulatory frameworks to govern safety. On

April 11, 1999, the United States became a party to the Convention, and participated in the final plenary of the first Review Meeting in April 1999. The U.S. also

deposited its National Report, which had been prepared by the NRC. We anticipate

fully participating in all aspects of the Convention’s preparatory, organizational and

review meetings in the future. International conventions on waste management and liability also have been ne- gotiated, as integral parts of U.S. efforts to enhance global nuclear safety . These

conventions are undergoing Executive Branch review and likely will be forwarded

by the President to the Senate for its advice and consent to ratification in calendar

year 1999.

MANAGEMENT AND SUPPORT ARENA

As stated earlier, our FY 2000 budget request supports a decrease in the area of management and support, primarily based on agency-wide program reductions and

efficiencies, with additional decreases due to the completion of milestones in information technology and management. A particular area of emphasis, which I will

cover in more detail, is our effort to resolve Year 2000 computer issues.

Year 2000 Implementation

All 88 of our internal mission-critical, business-essential and non-critical systems have been examined and, as needed, fixed with regard to the Year 2000 (Y2K) problem. This work was accomplished almost two months ahead of the OMB-established

milestone, and well under budget. The one NRC mission-critical system that is directly linked to operating nuclear power plants is our Emergency Response Data System (ERDS). This application performs the communication and data transmission functions that provide near realtime data to NRC incident response personnel during declared emergencies. We

have verified that this system has been made Y2K compliant and that the interface

of the system with licensed facilities is functional. Externally, the NRC is working with nuclear power plants and our other licensees to ensure Y2K readiness for those systems needed to operate and shut down plants

safely, recognizing the importance of ensuring electrical grid reliability and the safety and security of radioactive materials. Based on the results of our audits, we have

concluded that licensee management oversight of the Y2K readiness programs generally has been aggressive and is contributing to the success of nuclear facility Y2K

readiness efforts. Nonetheless, NRC inspectors assigned to power reactor sites have

reviewed licensees Y2K programs to ensure that all facilities are taking appropriate

actions. Based on our reviews, we believe that our licensees are devoting the necessary resources to their programs to meet their readiness schedules. In July 1999, the NRC received reports from all 103 operating nuclear power

plants indicating that there are no Y2K-related problems that directly affect the

performance of safety systems. Sixty-eight of these plants indicated that all of their

computer systems are ‘‘Y2K ready.’’ The remaining 35 plants reported that they

have additional work to complete on a few non-safety computer systems or devices

to be fully Y2K ready, and provided their schedules for completing this work. Of the

35 plants, about one-third have remaining work involving systems needed for power

generation. Other plants have work that deals with plant monitoring and administrative systems. I would emphasize that none of the remaining work affects the ability of the plants to shut down safely, if needed. Typically, the remaining Y2K work

to be completed after July 1 of this year is dependent on a scheduled plant outage

this fall, or the delivery of a replacement component.

The NRC will continue to monitor the progress at those plants that have remaining items of work, and will independently verify completion of these items, including

Y2K contingency plans—procedures for dealing with unexpected events. All licensVerDate 27-JAN-2000 14:51 Feb 01, 2000 Jkt 010199 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 E:\HEARINGS\58507 txed02 PsN: txed02
21

ees are expected to be Y2K ready and to have contingency plans in place before December 31. If, by the end of September, we believe that any needed Y2K readiness

activities will not be completed in advance of the December 31 to January 1 transition, we will take appropriate action, including the issuance of shutdown orders, if

necessary.

LEGISLATIVE PROPOSALS TO THE 106TH CONGRESS

The Commission has submitted a number of legislative proposals for the consider- ation of the 106th Congress. We are pleased to acknowledge that the Chairman of

this Subcommittee, Mr. Barton, has by NRC request introduced both our reauthorization bill and our legislative proposals. These proposals are designed to improve

our safeguards provisions, to increase our efficiency and flexibility, to eliminate duplicative regulatory roles, and to relax unnecessary or outdated provisions. Each of

the individual proposals is discussed below.

Improvements to NRC Safeguards Provisions

Carrying of Firearms by Licensee Employees: This amendment would authorize

guards to carry firearms at Commission-designated facilities owned or operated by

a Commission licensee or certificate holder, at any NRC-licensed or certified facility

where there are special nuclear materials present, and while engaged in transporting special nuclear materials. The guards would be authorized to use the weapons, in circumstances defined by Commission regulations and guidelines, where necessary to prevent sabotage of a facility designated by the Commission or to prevent

theft of materials capable of being used for nuclear explosives. The purpose of the

amendment is to help mitigate licensee guards’ reluctance to use their weapons in

defending such facilities and transports against attack because of fear of prosecution

under State laws that provide that weapons may be used only to protect the user’s

own life or the life of another. The amendment could provide the possibility of

shielding the guards against prosecution by state authorities for discharge of firearms in the performance of official duties. The authority that would be provided by

this amendment already exists with respect to guards at Department of Energy facilities and DOE guards transporting special nuclear materials. Unauthorized Introduction of Dangerous Weapons: This amendment would allow

the Commission to issue regulations that would, in effect, make it a Federal crime

for an individual who has not received prior authorization to bring any dangerous

weapon, explosive, or other dangerous instrument likely to produce substantial injury or damage into facilities subject to NRC licensing authority. Currently, the

NRC may impose sanctions against the licensee, but no Federal law permits imposing criminal sanctions against the individual responsible for bringing the weapon

or other dangerous instrument on site. Enactment of this amendment would assist

NRC licensees in their efforts to safeguard licensed nuclear facilities and materials

against nuclear theft or radiological sabotage. Sabotage of Production, Utilization, Uranium Enrichment, Fuel Fabrication, or Waste Facilities: Section 236 of the Atomic Energy Act currently addresses sabotage or attempted sabotage of production, utilization, and waste storage facilities. However, it can be argued that this provision is not applicable during the construction

phase of such facilities. Past events have indicated that sabotage can occur during

the construction phase that is not discovered until the operational phase, and thereby has the potential to impact public health and safety. This amendment would

make it a Federal crime to sabotage such facilities during the construction phase,

if the sabotaging action could jeopardize public health and safety. In addition, this

amendment would extend these sabotage provisions—for all phases—to other types

of facilities, including (1) waste treatment facilities, (2) waste disposal facilities, and

(3) uranium enrichment and nuclear fuel fabrication facilities licensed or certified

by the NRC. Enacting criminal sanctions to help deter sabotage and increasing the

range of facilities covered will provide further protection of the public health and

safety.

Increased Efficiency and Flexibility

Continuation of Commissioner Service: This amendment would allow a Commissioner whose term has expired to continue in office (subject to the removal power

of the President) until whichever of the following occurs first: (1) his or her successor is sworn in, or (2) the expiration of the next session in Congress after the

expiration of the Commissioner’s fixed term of office. Enactment of this amendment

would, in most circumstances, allow the Commission to maintain a quorum of at

least three individuals, even when the terms of several successive Commissioners

have expired without their reappointment, thus avoiding the potential disruption of

agency business due to the loss of a quorum. It would also be helpful for cases in

22

which a Commissioner is renominated, but with insufficient time for the Senate to

act before the expiration of the prior term. Such a holdover provision would enable

the Commission to operate in accordance with the intent expressed by the Congress

in the Energy Reorganization Act of 1974, that the NRC should have a 5-member

Commission. Holdover provisions are found in the organizational statutes of the majority of independent regulatory agencies. Hearings on Licensing Uranium Enrichment Facilities: This amendment would

improve the hearing process associated with NRC licensing of uranium enrichment

facilities by eliminating the requirement for such a hearing to be ‘‘on the record.’’

Hearings that are required to be ‘‘on the record’’ must conform to the more elaborate

formalities prescribed by the Administrative Procedure Act. Such hearings, if not

appropriately disciplined, can be inefficient, protracted, and costly. This amendment

would not eliminate the possibility that the Commission might determine that a formal hearing is appropriate for the licensing of uranium enrichment facilities, but

it would give the Commission the flexibility to determine which type of hearing is

most suitable.

Duration of Combined Construction and Operating Licenses: The Commission is

seeking a technical correction that would make the duration of a combined construction and operating license consistent with the duration of a license for an initial operating license under the circumstances where the construction and operating

phases are licensed separately. The Atomic Energy Act authorizes the NRC to specify a duration of up to 40 years for any commercial license it issues, including an

initial operating license for a nuclear power plant. The Energy Policy Act of 1992

amended the Atomic Energy Act to make explicit that the NRC can issue a combined license for construction and operation of a nuclear power plant. However, the

Energy Policy Act did not make explicit that the duration of a combined license

should allow for up to 40 years of operation. In the absence of such an explicit provision, it might be argued that the period of operation under a combined license is

limited to 40 years from the time authorization is given to construct the plant.

There is no safety reason for such a limit.

Office Location: This amendment would change the requirement that the NRC

maintain an office for the services of process and papers with the District of Columbia (DC). The Atomic Energy Act requirement that the NRC maintain such an office

was enacted before the Commission consolidated the agency in Rockville, Maryland,

and there is no longer a sound reason for maintaining the DC office. The elimination of the requirement could result in a monetary savings for the agency because

it would eliminate the need to maintain a DC address for hand or mail delivery of

documents. Commission efficiency could be enhanced if this statutory requirement

were eliminated.

Elimination of Duplicative Regulatory Roles

Elimination of NRC Antitrust Reviews: This amendment would eliminate the

Commission’s antitrust review authority with respect to pending or future applications for a license to construct or operate a utilization or production facility. At the

time of enactment of the Atomic Energy Act provisions requiring NRC antitrust reviews in connection with application for a Commission license to construct or operate a commercial utilization or production facility, the NRC appeared to be in a

unique position to ensure that the licensed activities of nuclear utilities would not

create a situation inconsistent with the nation’s antitrust laws. Today, however, the

NRC’s antitrust reviews unnecessarily duplicate other agencies’ efforts, particularly

those of the Department of Justice and the Federal Energy Regulatory Commission.

The amendment would preserve the Commission’s authority to enforce antitrust

conditions in licenses issued before the amendment became effective, and it would

not affect the Commission’s legal authority with respect to those conditions.

Actions Relating to Source, Byproduct and Special Nuclear Material: The Commission has issued regulations that establish radiological criteria for the termination

of licenses that fall under its regulatory authority and are protective of public health

and safety. Creation of an additional cleanup standard by Federal statute or regulation may make it extremely difficult for the cleanup of a site to reach finality. This

amendment of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) would make clear that the standards issued by the

Commission and its Agreement States would govern cleanup of Atomic Energy Act

material at facilities licensed by them. There would, however, be an exception that

will allow the Commission or an Agreement State to invoke the application of

CERCLA in the rare circumstance where that is necessary to effect adequate cleanup.

This amendment would also include in the CERCLA definition of ‘‘Federally permitted release’’ Atomic Energy Act material that is released in accordance with NRC

23

regulations following termination of a license issued by the Commission or by an

Agreement State. This would make the treatment of such releases consistent with

the treatment of releases under a current NRC license.

Relaxation of Unnecessary or Outdated Provisions

Elimination of Foreign Ownership Prohibitions: These amendments would eliminate the current restrictions on foreign ownership of utilization facilities (power and

research reactors). These restrictions were originally enacted at a time when commercial development of nuclear power was in its very early stages, but the situation

has changed significantly since then. Today, commercial use of nuclear power is

common in many countries, and the underlying technology is widely known. The

Commission would continue to scrutinize applicants for licenses to ensure that

issuance of a license to a new owner would not be inimical to the common defense

and security or to the health and safety of the public.

Gift Acceptance Authority: This amendment would provide the NRC with general

gift acceptance authority. To implement this new authority, the Commission would

be required to establish criteria to ensure that the acceptance of a gift would not

compromise the integrity of the work of the agency. The issue of NRC gift acceptance authority has arisen a number of times in recent years, primarily with respect

to acceptance of library and training materials from outside sources. Many other

government agencies currently have such authority.

CONCLUSION

Over the past few years, we have made substantial progress in improving our regulatory programs, and we have accelerated that progress in the past year. Our

interactions with this Subcommittee have contributed to this success, and we welcome your continued constructive oversight. With sufficient resources, strong leadership, and broad support, we plan to continue our efforts to enhance the effectiveness

and efficiency of the NRC by pursuing the paths that already have been charted.

The Commission fully expects that new areas will continue to arise, requiring attention and additional effort. As with current areas of reform, we will continue to ensure stakeholder involvement in the change process. We believe that we have laid

the groundwork not only for significant short-term adjustments, but for enduring

improvements to the NRC regulatory paradigm, institutionalized and stabilized

through incorporation into our performance-based planning process.

FY 2000 BUDGET SUMMARY

(in thousands)

Program FY 1998 FY 1999 FY 2000

Nuclear Reactor Safety ............................................................................................................. 224,009 210,350 210,043

Nuclear Materials Safety .......................................................................................................... 61,724 61,708 63,881

Nuclear Waste Safety ................................................................................................................ 32,635 38,742 42,143

International Nuclear Safety Support ....................................................................................... 5,102 3,931 4,840

Management and Support ........................................................................................................ 148,530 150,269 144,493

Subtotal (S&E) ...................................................................................................................... 472,000 465,000 465,400

Inspector General ($K) ............................................................................................................ 4,800 4,800 6,000

Total (NRC) ........................................................................................................................... 476,800 469,800 471,400

Mr. BARTON. Would I guess go with Mr. McGaffigan. He’s getting

the microphone, and then Mr. Merrifield.

STATEMENT OF EDWARD MCGAFFIGAN, JR.

Mr. MCGAFFIGAN. Mr. Chairman, I don’t have a prepared statement, but I want to comment very briefly about the Superfund provision that is in our legislative package and put some context on

that provision.

First, I want to say that we appreciate the support of this subcommittee for this provision in the last Congress. At the request

of Mr. Hall and then chairman Mr. Schaeffer, the provision was in

identical form included in Mr. Oxley’s Superfund legislation, H.R.

3000.

24

We believe that we are at a fundamental policy difference with our colleagues at EPA. We promulgated a rule through the full Administrative Procedure Act process in July 1997 that set what we

believed to be a protective standard for decommissioning and license termination at our facilities. The standard was based on voluminous analysis and public comment. But it did not come out the

way the EPA would have liked it to come out. We believe the 25

millirem all pathways standard is protective of public health and

safety. Our colleagues at EPA, who will speak soon, will say that

that is not adequately protective; and that further actions under

Superfund might be required.

This same issue comes up repeatedly. It came up in the highlevel waste hearing, as you recall earlier this year. It comes up in

the EPA’s dealings with the States on what the standards should

be for so-called technologically enhanced naturally occurring radioactive material—oil field by-products, that sort of thing. And when

we are in fundamental disagreement, when an independent regulatory agency is in fundamental disagreement with the Administration, we respectfully suggest that the Congress should break the

tie.

We would be happy to testify as to why we think our standard

is protective. It is basically the same argument that we made earlier this year during the high-level waste hearing, and I won’t go

further.

Thank you, sir.

Mr. BARTON. Thank you. Mr. Merrifield?

STATEMENT OF HON. JEFFREY MERRIFIELD

Mr. MERRIFIELD. Thank you, Mr. Chairman. I would certainly associate myself with my remarks of my fellow Commissioners. I just

want to expound briefly and extemporaneously on two issues that

have been raised by the members this morning—this afternoon.

The first one is on the fee-base issues. This subcommittee is considering the way in which we go about paying for the programs

that we regulate at the NRC. Under law, we as an agency are required to seek funding for all of the activities that we have, and

so ultimately those fees are passed off to licensees. As has been

noted by various members, we as an agency, we the Commissioners, have taken a position that we believe that up to 10 percent

of the activities we conduct should be taken off of that fee base and

should be paid for by general revenues, as they are issues that are

more appropriately distributed among all of the American people,

not just the licensees.

Some of these programs that have been targeted include some of

the activities we have relative to Agreement States, those States

which are responsible for running some of their own programs in

conjunction with us; some of our international activities; some of

our work in terms of regulating Federal agencies, which also are

passed off to the licensed utilities and other licensees.

We do feel and do believe that the issue of moving toward general revenues makes sense. The one point I would want to leave

with the members of this subcommittee: we believe those activities

are very important activities—and just because we want to move

those off the fee base does not take away from the fact that they

25

are important. The international activities, many of which were

subject to statutory requirements, are vital. We have good relationships with many of our foreign counterparts. The American role in

maintaining the safety of nuclear power plants across the world is

vital.

Similarly, although there are many States which have taken responsibility for some of the regulation for radioactive materials in

their State, the fact remains that they depend on the NRC to come

up with the underlying regulations. Even if every State were to decide to become an Agreement State, we would still need to have the

moneys to be able to establish those regulations. So they are important, and I want to bring that to your attention.

The second issue is the Sunshine Act. I know that has raised

some concerns on the part of this committee and others. We have

had a comment period on our efforts to be compliant with the Supreme Court decisions on how our Commission acts relative to our

public disclosure. The point I certainly would want to make is this

Commission is clearly dedicated toward the notion of openness and

having full stakeholder involvement.

What we have found, and Commissioner McGaffigan and I have

been talking about this and we initiated this issue at the Commission, we do not have an opportunity for the collegiality the Congress originally intended for Commissions such as the NRC. We

have not had an ability to sit down and do the big picture thinking

about how where we want to go as an agency; how we want to view

ourselves as an agency. Those are issues that we feel are important

sometimes to be able to kick around amongst the five of us.

In addition, we really want to have those in discussions a big picture way. We want them to be discussions, be we do not want them

to be decisionmaking meetings. Any of the public meetings that we

have now, we have committed to maintaining in full public view.

There are many other commissions out there which have already

moved toward aligning themselves with the Supreme Court decision. At the Defense Facilities Nuclear Safety Board, for example,

the members of that Commission meet on a daily basis to discuss

these very issues. I think it is important to increase the

collegiality, to make us work more effectively as a Commission.

And certainly I and the other Commissioners would be happy to

discuss with you our thoughts on that matter.

Thank you.

Mr. BARTON. And representing the Environmental Protection

Agency, Mr. Fields.

STATEMENT OF HON. TIMOTHY FIELDS, JR.

Mr. FIELDS. Thank you, Mr. Chairman and members of the subcommittee. I am pleased to be here this afternoon to talk about the

role of the Superfund program in facilities that are currently or

previously licensed by the Nuclear Regulatory Commission.

Before I begin to address language on the legislative provisions

before us, it is important to note that EPA expects that implementation of the NRC regulations of July 21, 1997, which are the radiological criteria for license terminations will result in cleanups within the Superfund protective risk range at the vast majority of sites.

26

But for a small, but important, group of sites we believe that the

legislative provisions being considered today would result in not

providing assurances to the public that NRC licensees are decommissioning in a manner that is protective human health and the

environment.

The Superfund law and the implementing regulations, namely

the National Contingency Plan, do not differentiate risks caused by

radioactive contamination as compared to non-radioactive contamination. Remedial actions under the Superfund must be protective,

i.e., generally within the risk range of ten to the minus fourth, ten

to the minus sixth risks for all exposure pathways and all contaminated media—groundwater, surface water, sediment, air, other

biodia.

Further, groundwater should be returned to beneficial reuse we

believe, which includes meeting maximum contaminant levels for

all contaminants, including radionuclides within the groundwater

plume where maximum contaminant levels are relevant and appropriate for the site. It is this view that we have that current or potential future sources of drinking water, which are the source of

drinking water, as you know, for more than 50 percent of the

American people comes from groundwater. We believe this is a valued national resource. It must be protected to levels suitable for

drinking water.

The Superfund policy, therefore, is that a site—if a site cannot

be cleaned up to a protective level for a reasonably anticipated future land use because it is not cost effective or practicable, then a

more restricted land use should be chosen that will meet protection

levels. EPA does not generally expect that the future anticipated

land use for most NRC sites will be residential.

Since September 1983, we have had one policy on the books,

which is that we will generally defer to the NRC’s Corrective Action Program and not place NRC sites on the Superfund national

priorities list. However, as EPA indicated in the Federal Register

published that year if we determine that the sites that are not on

the national priorities list are not going to be cleaned up in a protective way, we would consider placing those sites on the Superfund list or taking appropriate Superfund response action. That remains EPA’s position today.

EPA expects to continue to work in a cooperative fashion with

the Commissioners and the Chairman of the Nuclear Regulatory

Commission as we have in the past on a site-specific basis. We are

concerned with the potential inefficiencies of this situation and the

potential impediments to cleanup caused by the threat of dual regulation.

As a result, EPA urges again that we work together with the Nuclear Regulatory Commission on a memorandum of understanding,

outlining consultation requirements and procedures for EPA to use

in those rare cases where a site-specific application of NRC’s decommissioning rule might result in a cleanup that is not protective

of human health and the environment.

EPA stands ready to work with the Nuclear Regulatory Commission on the completion and implementation of such an MOU. While

we clearly believe that NRC ought to be the lead regulator, with

EPA consulting and providing advice.

27

1 ‘‘Risk Assessment Guidance for Superfund: Volume I—Human Health Evaluation Manual

(Part A)’’, EPA/540/1-89/002, December 1989.

Last, in conclusion, EPA believes that the areas of difficulty between EPA and NRC regarding our cleanup programs mainly involve issues of groundwater remediation, overall cleanup levels,

and last methods of providing for restricted land uses where necessary, to establish cost effective cleanup levels.

EPA believes that citizens should be protected within the Superfund risk range and have ground waters restored to beneficial uses

where practicable, regardless of the type of contaminant—radionuclide or otherwise. EPA cannot support legislative initiatives

that would hinder our ability and responsibility to protect human

health and the environment.

Mr. Chairman, thank you very much for being able to present my

testimony and look forward to responding to questions.

[The prepared statement of Hon. Timothy Fields, Jr. follows:]

PREPARED STATEMENT OF HON. TIMOTHY FIELDS, JR. ASSISTANT ADMINISTRATOR,

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

INTRODUCTION

Good afternoon, Mr. Chairman, and Members of the Subcommittee. I am pleased

to have the opportunity to appear before you to discuss the role of the Superfund

program at facilities currently or previously licensed by the Nuclear Regulatory

Commission (NRC).

Before I begin to address language in H.R. 2531, it is important to note that EPA

expects that the NRC’s implementation of its Radiological Criteria for License Termination (‘‘decommissioning rule,’’ see 62 FR 39058, July 21, 1997) will result in

cleanups within the Superfund risk range at the vast majority of sites. For a small

but important group of sites, however, I believe that the legislative provision being

considered today would not provide assurances to the public that NRC licensees are

decommissioning in a manner that is protective of human health and the environment.

OPPOSITION TO PROPOSED AMENDMENTS TO CERCLA

Section 207 of H.R. 2531 is the portion of the bill that would amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980

(CERCLA). The Administration has already opposed legislative provisions similar to

those in section 207. On September 3, 1997, former NRC Chairman Shirley Ann

Jackson sent a letter to Senator John H. Chafee which proposed that the same legislative provisions that are in section 207 be included in legislation reauthorizing

CERCLA. In a March 25, 1998 letter to Senator Joseph Lieberman, EPA stated the

Administration’s opposition to NRC’s draft legislative language.

HOW RADIATION IS ADDRESSED UNDER CERCLA

Section 101(14) of CERCLA defines radiation as a hazardous substance subject to

actions conducted under the statute. In particular, radionuclides are designated generically as hazardous air pollutants by Clean Air Act (CAA) section 112, and

CERCLA section 101(14)(E) defines the term ‘‘hazardous substance’’ to include CAA

hazardous air pollutants.

CERCLA and the National Contingency Plan (NCP) do not differentiate risks

caused by radioactive contaminants from those caused by non-radioactive contaminants. Remedial actions under CERCLA must be protective (i.e., generally within

the risk range of 10-4 to 10-6) for all exposure pathways in all contaminated media

(e.g., soil, ground water, surface water, sediment, air, biota).1 Further, ground waters should be returned to beneficial reuse, which includes meeting Maximum Contaminant Levels (MCLs) for all contaminants including radionuclides within the

ground water plume, where MCLs are relevant and appropriate for the site. It is

this Administration’s position that current or potential future sources of drinking

28

2 EPA has the authority to choose not to respond to certain types of releases under CERCLA because existing regulatory or other authority under other Federal statutes provides for an appropriate response. As a policy matter, EPA has generally chosen not to list releases of source,

byproduct, or special nuclear material that is currently licensed by NRC. This general deferral

policy never applied to facilities where NRC has terminated the license, or the current license

is issued by a State pursuant to a delegation of authority from the NRC pursuant to section

274 of the Atomic Energy Act (42 U.S.C. 2021).

water are a valued national resource and should be protected to levels suitable for

drinking water. EPA’s CERCLA policy states that if a site cannot be cleaned up to a protective level (i.e., generally within the 10-4 to 10-6 risk range) for the ‘‘reasonably antici- pated future land use’’ because it is not cost-effective or practicable, then a more

restricted land use should be chosen that will meet a protective level. EPA does not

generally expect that the future anticipated land use will be residential for most

large NRC sites.

NUMBER OF NRC SITES EPA EXPECTS TO ADDRESS

EPA anticipates that there will be a very small number of sites that will be af- fected by our differences of opinion with NRC on what constitutes protectiveness of

human health and the environment. This is consistent with the December 1997

NRC Inspector General report that states, ‘‘NRC and EPA officials agree that a relatively small number of sites will not initially clean up to the CERCLA standards.’’

EPA ACTION AT NRC FACILITIES

Since September 8, 1983, EPA has generally deferred listing on the National Pri- orities List (NPL) sites that are subject to NRC’s corrective action authority because

NRC’s actions were generally believed to be consistent with the CERCLA requirement to protect human health and the environment.2 However, as EPA indicated

in the Federal Register notice announcing the policy of deferral to NRC, if EPA ‘‘later determines that sites which it has not listed as a matter of policy are not

being properly responded to, the Agency will consider listing those sites on the NPL’’

(see 48 FR 10661). This remains EPA’s position.

Even with EPA’s policy of deferral to NRC, EPA has taken action at formerly or currently licensed NRC sites that posed a threat to human health or the environment. In some instances, EPA response actions have occurred in cooperation with

NRC to address contamination not addressed by NRC, including non-radiological

(chemical) contamination or off-site contamination. At other sites, EPA has taken

action to address formerly licensed material that posed a threat to human health

and the environment. Whenever possible, EPA attempts to work cooperatively with

NRC to resolve site issues.

If the release of radionuclides into the environment from a facility is in complete compliance with a legally enforceable permit issued in accordance with the Atomic

Energy Act (e.g., an NRC or NRC Agreement State license), such a release will be

exempt from CERCLA liability provisions as a ‘‘federally permitted release’’ under

CERCLA sections 101(10)(K) and 107(j) until after the license is terminated. If the

release of radionuclides violates the terms of the license in any manner, however,

CERCLA liability will exist for the licensed material even before the license is terminated.

MEMORANDUM OF UNDERSTANDING

EPA expects to continue to work cooperatively with NRC on a site-specific basis. We are concerned with the potential inefficiencies of this situation and the potential

impediments to cleanup caused by the threat of dual regulation. EPA and NRC have

exchanged draft Memoranda of Understanding (MOUs). EPA would like to enter

into an MOU with NRC outlining consultation procedures for EPA to use in those

rare cases where a site-specific application of NRC’s decommissioning rule might result in a cleanup level that is not protective. EPA stands ready to work with NRC

on the completion and implementation of an MOU with the goal of ensuring the selection of cost-effective cleanups that are protective of human health and the environment and that facilitate the beneficial reuse of properties formerly licensed by

NRC.

CONCLUSION

EPA believes that the outstanding issues between EPA and NRC cleanup pro- grams mainly involve issues of ground water remediation, overall cleanup goals, and

methods of providing for restricted land uses when necessary to establish cost-effecVerDate 27-JAN-2000 14:51 Feb 01, 2000 Jkt 010199 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 E:\HEARINGS\58507 txed02 PsN: txed02
29

tive cleanups goals. EPA is committed to using the full range of alternatives available to achieve cleanup of ground waters that are current or potential future sources

of drinking water in a reasonable time period and to selecting cleanup goals that

reflect reasonably anticipated land uses so that cleanups are protective of human

health and the environment over the long term. EPA’s experience with remediating

Superfund sites has shown that these objectives are achievable with limitations on

land use, and the use of institutional and engineering controls.

EPA believes that citizens should be protected within the NCP risk range (generally 10-4 to 10-6) and have ground waters restored to beneficial reuse where practicable, regardless of the type of contaminant. The Agency cannot support legislative

initiatives that would hinder EPA’s ability and responsibility to protect human

health and the environment.

Mr. Chairman, thank you for this opportunity to address the Subcommittee. I

would be pleased to answer any questions you or the other Members may have.

Mr. BARTON. Thank you, Administrator Fields. The Chair wants

to remind our panel and also the committee we are expecting a

number of votes in about 10 minutes. I think there’s one 15-minute

vote and—excuse me—three 5-minute votes, so we are unfortunately going to have to—excuse me—suspend to go do that. I especially want to remind my minority friends the second panel was

put on at the request of the minority, so I expect some minority

members to be here when the minority—when the second panel—

and that’s not necessarily to Mr. Sawyer. He just happens to be the

only one here.

Mr. SAWYER. I will share the message, Mr. Chairman.

Mr. BARTON. Yes. The Chair recognizes himself for the first 5

minutes of questions.

Madam Chairwoman, it is very unusual for a Federal agency to

request that part of its jurisdiction be eliminated. But yet, in your

NRC proposal, you do—the Commission requests that it be relieved

of its anti-trust review.

If we do that, what other agencies would perform anti-trust review for nuclear power plants and companies that own them?

Ms. DICUS. Okay, there are two agencies that conduct the reviews that the NRC currently conducts. The Department of Justice

and the FERC conduct these same reviews, and for us to do it also

does not add value to the process. They are quite—the other two

agencies do the job quite capably. For us to do it simply adds in

some cases costs and time, so we feel that it is adequately covered,

and there is no reason for us to perform those reviews.

Mr. BARTON. Does the—do the other Federal agencies that would

do the review, do they share your view on this, the Commission’s

view on this?

Ms. DICUS. I have not discussed personally this with the other

agencies. I would assume that they would, and would not have a

problem with that. We would have to get back to you on that.

Mr. BARTON. Well, you noticed that a similar provision was in

the administration electricity deregulation——

Ms. DICUS. That is true.

Mr. BARTON. [continuing] proposal.

Ms. DICUS. Yes.

Mr. BARTON. So I would take that that the Clinton Administration at least at the Presidential level supports the proposed

change?

Ms. DICUS. Yes, the administration supports this change.

30

Mr. BARTON. Okay. The—a number of the Republicans in their

opening statements showed support or concern anyway about the

fact that right now the Commission, by law, has to request 100 percent funding through user fees. It is my understanding that in the

budget submission to the OMB, the Commission did request authority to get some funds from general revenue. Can you comment

on that?

Ms. DICUS. Sure, I would be happy to, and that is correct. In fact,

for the last few years, we have requested to get perhaps up to as

much as 10 percent, as Commissioner Merrifield testified, of our

budget off the fee base because of the activities that we have that

are important activities we think to the public health and safety,

but are—really benefit the American people as a whole. We have

not been successful in getting OMB to agree to this.

Mr. BARTON. Mr., oh—Commissioner.

Mr. MCGAFFIGAN. Just one brief point—there is one little piece

of our legislative package that addresses part of this issue. We will

solve the problem—if you pass this piece of the package—of subsidizing our review of other Federal agencies out of the fee base.

We have part of our proposal within the authorization bill as opposed to the legislative package, and that is about a $2.8 million

fairness and equity issue that would be solved within the overall

$50 million issue if that provision were to be enacted. But that is

the only piece that we got out of OMB.

Mr. BARTON. Okay. Administrator Fields, first I—I just want to

thank you for the work you have done with me on the dry cleaning

issue. We are still working on that, and I hope my office has stayed

in contact with your staff as we have worked with Senator Kerry

and the industry to try to get agreement. But I really appreciate

your openness on that.

Mr. FIELDS. You are welcome, sir.

Mr. BARTON. On this issue, Commissioner McGaffigan basically

said he wants Congress to break the tie. Does the EPA share that

view of the Congress as a referee? Is the EPA willing to let the

Congress break the tie on some of these who sets the standard and

how do they set it issues that seems to be perennial between your

agency and the Regulatory Commission?

Mr. FIELDS. No, we do not share that view. We do not think this

is something that Congress needs to break the tie on. We think

that there is some valid approaches as to how you make decisions

about remedy that provide for protection of groundwater and appropriate cleanup goals. I would like to sit down with Mr.

McGaffigan to talk——

Mr. BARTON. Maybe we can give you all pistols that—for 30

paces.

Mr. FIELDS. About how we might—how we might work together

on a—what we have suggested is a memorandum of agreement. We

are not trying to take the lead. We believe that the Nuclear Regulatory Commission ought to be the lead regulator in this regard,

and, like I said in my testimony, we believe that 90 percent of the

time, we are going to be in agreement. But we think that there are

a few cases where we need to have some clear agreement as to how

we will interact and how we agree on cleanup approaches for

groundwater and overall cleanup goals. And we are currently in

31

disagreement. We think that we can sit down and write out—develop a memorandum of agreement that would make clear how we

resolve disputes between the two agencies, and that is the best way

to go. And we would love to do that.

Mr. BARTON. But now is not it true that you all have been in disagreement for a number of years, that this is not——

Mr. FIELDS. That is correct.

Mr. BARTON. How many——

Mr. FIELDS. We have been——

Mr. BARTON. How many years to the best of your recollection?

Mr. FIELDS. We have been—I have—we have been working on

this for more than 2 years.

Mr. BARTON. More than 2 years. But is not it——

Mr. FIELDS. In terms of——

Mr. BARTON. Is not it a point in fact——

Mr. FIELDS. Trying to develop a memorandum of agreement that

would allow us to arrive at some compromise in this area.

Mr. BARTON. Mr. Commissioner McGaffigan, how long have you

all been in disagreement?

Mr. MCGAFFIGAN. As best I can tell, sir, a better part of a decade. And you go back to——

Mr. BARTON. So you are in disagreement about how long you

have been in disagreement?

Mr. MCGAFFIGAN. Well, it depends how you define it. We provided comments to EPA about the Waste Isolation Pilot Plant back

in around 1991.

Mr. BARTON. That was my understanding also that it—I am not

saying Mr.——

Mr. FIELDS. I am not talking about—I was not talking about that

situation.

Mr. MCGAFFIGAN. But it is the same fundamental issue.

Mr. BARTON. I understand. My time has expired. The Chair

would recognize Mr. Sawyer for 5 minutes.

Mr. SAWYER. Thank you, Mr. Chairman. Let me apologize to you

and Mr. Shimkus for my disorderliness, as he began his opening

statement——

Mr. BARTON. It was more Mr. Markey than you.

Mr. SAWYER. Is not that always the case, Mr. Chairman?

Mr. BARTON. He is not here to defend himself.

Mr. SAWYER. Let me just ask the question that the chairman and

I were talking about on our way trying to find our hearing this

afternoon. The whole question of the proposal in the bill to limit

the prohibition on foreign licensure to production facilities is a substantial change in policy. Could you talk a little bit about your

sense of whether or not there are sufficient security standards.

How that can be ensured, and your sense of motive for making this

change in the first place.

Ms. DICUS. Certainly. The issue—the NRC, if a company, a foreign-owned company, had an interest in buying, for example, a nuclear power plant, we have currently, and we would maintain if

there were any changes in the law, the ability to look at that company and to ensure that there is no reason that the sale of one of

our facilities to a foreign-owned company would, in any way, endanger the security of the United States. We would maintain that

32

capability and that would be part of our decision to say yes or no

to such a transaction.

And second, should we say yes to such a transaction and then

we were to find some additional information, or if there would be

some sort of change in the process that was not—it might be not

in the best interest of the American public, we can revoke that license.

Mr. SAWYER. Yes, sir.

Ms. DICUS. You want to go further?

Mr. MCGAFFIGAN. If I could just expand on the motivation.

Ms. DICUS. That’s good.

Mr. MCGAFFIGAN. The restructuring of the electric power industry in this country, in some sense, is the motivating force. We

looked at this provision, and we regard it as archaic. And I will tell

you my own thought process. There are very sensitive facilities,

from a non-proliferation perspective, namely the fuel cycle facilities

that produce the fuel that goes in the reactors, that deal with vast

quantities of special nuclear material. Those fuel cycle facilities are

licensed under a different provision in the Atomic Energy Act. And

it has the provision that Chairman Dicus just talked about—this

common defense and security finding, inimicality finding, we call it.

But almost all of those facilities are today owned by foreign entities—West European entities. The sole exception is the General

Electric Company. Westinghouse was the most recent to be bought

by a foreign entity. So we have made determinations under this

inimicality clause that certainly would prevent Iraq, Iran, North

Korea—any nation of that sort—to own any of our nuclear power

plants if this provision were enacted.

So it was really an effort to look at the restructuring, look at the

global commerce. The nuclear power plants are not as sensitive as

the fuel cycle facilities. We, indeed, have exported our nuclear

power plant technology to all of the countries whose nationals I

could consider possible owners—the Japanese, the French, the British, the Germans, et cetera. They build American power plants—

Westinghouse or GE. So there is not a security issue with regard

to many countries. There is a security issue with regard to others,

but there is another clause that would prevent us from selling to

the bad guys.

Mr. SAWYER. Is there an economic motive behind all of this

that—particularly with the—with restructuring, both on the State

level and the national level impending?

Mr. MERRIFIELD. I am jumping in. I guess, from my standpoint,

this is sort of a free market issue. We have—if you were a user of

power—you are sitting at home. You get power flowing through the

line that may come from an oil-generated plant, a gas-generated,

coal-, or nuclear. Nuclear power plants are the only energy-producing plants in the United States that cannot be bought by a foreign company. Now, the old test in the Atomic Energy Act, as was

expounded by the two Commissioners, is a two-part one.

The first one is there foreign control—this does not allow foreign

ownership to get a controlling majority.

The second part of the test is the inimicality, and that relates to

either someone in the United States or someone outside of the

United States.

33

What we are saying with our proposal is we want to—in order

to align us with the rest of the power production industry, we

would take away the majority ownership test, but we could still

make that inimicality determination. And we still have the ability

to take that license away if later on, having given that license, we

determine it is not in the national interest to allow that licensees

to keep——

Mr. SAWYER. Just one further. And you are assuring me that this

has little to do with the costs that might well be stranded to a domestic industry and the willingness of foreign investors to bet on

the ability to get those recovered in some way, even if at bargain

basement prices?

Mr. MERRIFIELD. I do not think that—when I think of myself,

that did not factor into my determination.

Ms. DICUS. No, I do not think so.

Mr. MERRIFIELD. I mean, logically, it is very difficult to make—

when the Atomic Energy Act was first put together, there were

concerns about having foreigners have access to this technology.

Mr. SAWYER. Sure. Sure.

Mr. MERRIFIELD. The nuclear industry and its technology is very

widespread. The reason for having that distinction, that wall——

Mr. SAWYER. It is simply the security distinction that no longer

applies in your view?

Ms. DICUS. Right.

Mr. MERRIFIELD. Right. Right.

Mr. SAWYER. Thank you, Mr. Chairman.

Mr. BARTON. No one has ever accused the Congress of being logical, but many have said we are archaic, so that proposal still has

problems.

The gentleman from Kentucky, Mr. Whitfield, for 5 minutes.

Mr. WHITFIELD. Thank you, Mr. Chairman.

Mr. Fields, now I take it that you would be opposed, and your

agency is opposed to the definitional change of federally permitted

release that they are proposing?

Mr. FIELDS. Yes.

Mr. WHITFIELD. Is that correct?

Mr. FIELDS. Yes, that is correct.

Mr. WHITFIELD. And why are you all opposed to that?

Mr. FIELDS. Well, we are concerned that this—that the changes

that are being proposed to the cleanup provisions would result in

certain inadequate being occurred—occurring. And we are proposing that the legislation not be changes to CERCLA or the

Superfund law, but rather allow us to retain the current legislative

language that is in the Superfund law in terms of defining what

is a radionuclide, for example. The current definition in 101 defines

radionuclides as hazardous air pollutants. Radionuclides under the

clean air—are defined as a hazardous air pollutant under the

Clean Air Act. Under the Superfund law, they automatically get

adopted as hazardous substances—under the Superfund law; and

therefore, come out of the jurisdiction of the Superfund authorities.

We believe that that authority is appropriate for all contaminants—radionuclides as well as non-radionuclides. And, therefore,

we do not believe that ought to be changed. We believe that

34

ought—that current legislative construct in the current legislation

ought to be retained.

Mr. WHITFIELD. Now is there any——

Mr. MERRIFIELD. Congressman, I am sorry. I would not mind responding to that if I could?

I think there are 3 things, 3 points I want to make. First, you

know, our mission, as it is the EPA’s is to protect public health,

safety, and the environment, so an accusation that we would not

be able to do that in a sufficiently high caliber, certainly I would

find that somewhat objectionable.

Second, in comparison, we went out, and we used the best

science available to us. We went to all of our international counterparts to determine what is the best way to come up with a standard.

Now, there are some countries that have a somewhat different

standard. They may go with 20 millirem, or 15 millirem, but the

one thing that we did find out, EPA, in their efforts to try to have

a separate groundwater standard is the only agency in the world

that calls for a separate groundwater standard. Each and every

other international agency that regulates this area calls for a single

standard—all pathways.

The third point that I would make is, you know, we are little territorial. You know, our business is regulating nuclear energy and

nuclear materials and protecting public health and safety. We have

got 2,800 people in our agency who worry about this all day long—

280 of them are Ph.D.s. And I would compare our record and our

expertise with any portion of the Federal Government. I note, for

example, the Office of Air and Radiation—the folks that they have

there at EPA who worry about controlling radioactive issues. They

have got 60 people and 5 Ph.D.s, and we certainly—we feel pretty

fair in making that comparison.

Mr. FIELDS. I just want to interject on that point, I did not address that point, but it——

Mr. BARTON. It sounds like you are out gunned; you are out

Ph.D’d, anyway.

Mr. FIELDS. Well, this is a—this is an issue that the position the

EPA has taken on this issue, Congressman, is one that is not just

supported by EPA, but it is the entire remainder of the administration, including the Department of Energy, for example, who regulates and manages a lot of radionuclide cleanups as well, so this

is not just an EPA position on—just let me finish my comment. It

is not an EPA position on what the appropriate protection is for

cleanup of these radionuclide sites. This is an administration point

of view, not shared by my colleagues in the Nuclear Regulatory

Commission, but I assure you this is not just an EPA position.

Mr. MCGAFFIGAN. Sir, just on that last point, I would point out

that the DoE did try to propose a rule very similar to ours, and

they did get a letter from EPA saying it was not supportive of the

administration’s Superfund principles. But the DoE would like to

have adopted a rule for cleanup of its facilities. It was very similar,

with the identical standard—almost identical.

Second, our rule—earlier it was talked about us riding roughshod

over an EPA standard. We adopted our standard by rule. The EPA

standard that we are talking about, we get in letters. We get in

35

guidance documents. Senator Domenici, Senator Murkowski, and

Senator Nickles sent a letter to the administration asking whether

one of these guidance documents was a rule, and the answer was

it was not. And so they are trying to trump our rule.

Mr. BARTON. They being?

Mr. MCGAFFIGAN. They being the EPA, with guidance——

Mr. BARTON. You seem like such a nice guy, too.

Mr. MCGAFFIGAN. Yes, and he is.

Mr. MERRIFIELD. He is a very nice guy.

Mr. MCGAFFIGAN. Yes, and that is frustration we have. As Commissioner Merrifield said, we did adopt this based on the best

science that we had available to us—a bipartisan commission—3

Democrats and 2 Republicans. And we are at loggerheads. All the

EPA proposals for the MOU that has been talked about would read

as follows: change your rule to our rule by MOU. I personally think

that somebody would sue us if we did that, because we would have

violated due process. Having adopted a rule through the proper

procedure, we would undermine it through an MOU. So we are at

loggerheads.

Mr. WHITFIELD. You know the NRC said that they may be territorial. I assumed that the EPA would not be territorial.

Mr. FIELDS. We would not be territorial.

No, but, Congressman, if the NRC had finalized the regulation

that they proposed, that the same great scientists at the NRC proposed prior to the final, we would have accepted that. That would

have been—that we believe that rule would have been protective.

And we said that. NRC changed their position between the proposal and the final rule that came out in 1997. The proposal was

fine with EPA, but the change in the—from final—from proposal

to final is what caused the problem and the concern we have today.

Mr. WHITFIELD. You know, Mr. Chairman, that was not my main

question.

I have 2 or 3 specific questions I would like to submit to Ms.

Dicus in writing and get answers.

Ms. DICUS. Okay. Certainly.

Mr. BARTON. Without objection. And if you are willing to come

back and they want to stay, you can get a second round.

Mr. WHITFIELD. I may do that.

Mr. BARTON. Mr. Hall is recognized for 5 minutes, and at the end

of Mr. Hall’s 5-minute question period, we will suspend until approximately 4 p.m., because we have two votes on the floor.

Mr. Hall.

Mr. HALL. Mr. Chairman, we can suspend now if would like to.

I will submit my questions in writing. I do not know what questions have been asked, and I hate to waste their time.

Mr. BARTON. Okay. Then we will recognize Mr. Shimkus for 5

minutes.

Mr. SHIMKUS. Thank you, Mr. Chairman, I have got a——

Mr. BARTON. He will—he—his will be the last questions.

Mr. SHIKMUS. Mine will be relatively quick. Going back to the

user fees, and, Mr. Merrifield, you mentioned that under the proposal that internally by charging the other agencies, that is how

you could make up some of the shortfall, was that correct?

Those who benefit from the NRC?

36

Ms. MERRIFIELD. Right. Right now, we believe we have about

$2.8 million worth of services that we provide to the Army, the Air

Force, DoE—we should be able to get from them.

Ms. SHIMKUS. Right. Okay. Let me—let me try to get this shorter. Okay, what about externally? Do you provide services to people

or agencies or nations outside——

Mr. MERRIFIELD. Well, we have—we have, you know, we regulate

non-profit educational institutions, for example. The non-profits,

they do not have the same kind of taxing structure, because we

have to have 100 percent——

Mr. SHIMKUS. But could we then also offset some of the cost by

charging those who are receiving benefits from your services?

Mr. MERRIFIELD. In that particular case, I am not certain whether Congress would want to impose, in effect, a tax or fee——

Mr. SHIMKUS. Well, what about internal, are we providing any

assistance outside the United States?

Mr. MERRIFIELD. Chairman?

Mr. SHIMKUS. To other countries?

Ms. DICUS. Yes, we do have an international program and we do

provide assistance. Some of that funding is provided to us through

AID, the Agency for International Development, and through some

other things. Some of it, some of our international programs is paid

off the fee base, which would be one of the programs that might

best benefit from the general funds.

One of our major programs is the Agreement State program, and

that is the most costly one coming out the fee base for support to

the Agreement States, in addition to oversight of the Agreement

States.

Mr. MERRIFIELD. And we believe that those are valuable programs that benefit all American people, and for that reason, we

think it ought to be paid for by the general fund.

Mr. SHIMKUS. And there will be a conflict obviously with budgetary principles, but I wanted to get those answered.

Thank you, Mr. Chairman.

Mr. BARTON. The—does Mr. Ehrlich wish to ask a full round of

questions?

Mr. EHRLICH. Mr. Chairman, I may ask a full round of questions,

but I would like to submit those questions——

Mr. BARTON. For the record. Okay.

Mr. EHRLICH. Yes, sir.

Mr. BARTON. Okay, the gentleman——

Mr. EHRLICH. I appreciate it.

Mr. BARTON. From North Carolina.

Mr. BURR. Just for one question, Mr. Chairman, because I did

get in on the tail end as well. Mr. Fields, is—are—is the science

at EPA that much better than the science at NRC?

Mr. FIELDS. We believe——

Mr. BURR. Or is the science the same, and you just have a policy

difference?

Mr. FIELDS. I am sure that the Nuclear Regulatory Commission

has great scientists working for them. I think we have good scientists working for us. We have a science advisory board that

works for EPA that coordinates science that is used at EPA——

37

Mr. BURR. What would your scientists say if they looked at their

scientists’ information?

Mr. FIELDS. That would be an interesting question to say. All I

can say is that the—our scientists have supported our position, the

policy position we have taken, on groundwater cleanups and what

is a protective cleanup within the risk range. I will be happy to

have our——

Mr. BURR. A key word in there, and I hope——

Mr. FIELDS. Scientists take a look at the background documents

that support NRC’s science, and see what they say.

Mr. BURR. Hope, a key word in there, and I would hope that you

would do that. Your scientists have supported your policy decision,

not your—necessarily the science behind what you are after, and

I am—and that is a very, very important difference that you and

the EPA need to realize in this difference that the two parties

have. I would yield back.

Mr. BARTON. We are going to suspend until a little before 4 p.m.

We have got two votes. I am going to go ahead and officially let

this panel go. There is going to be lots of questions that people

want to put into the—submit to you for the record, and then we

will be involved at the personal level and the staff level in working

through your proposal. If you all wish to stay, and other members

come back and want to ask—if you are willing to come back to the

table, that is a little irregular, and, as high-powered administration

appointees, you do not—you will not be required to do that—but,

you know, if you are going to stay anyway, that we might could get

some questions from some of the people that are not here right

now.

But we appreciate the—this panel and you are officially relieved

of duties. So if you need to go back to your offices, you can do that.

We will come back in a little before 4 p.m.

Ms. DICUS. Okay.

Mr. BARTON. For the second panel.

Ms. DICUS. Thank you.

[Brief recess.]

Mr. BARTON. The subcommittee will come back to order.

We now want to hear from our second panel. We have Mr. Ralph

Beedle, who is the Senior Vice President and Chief Nuclear Officer

for the Nuclear Energy Institute, and we also have Mr. David

Adelman, who is the project attorney for the Natural Resources Defense Council in New York, but his office is here in Washington,

DC, I think.

We are going to put your entire statements in the record. We will

recognize you, Mr. Beedle, for 5 minutes, and then we will recognize Mr. Adelman for 5 minutes. And then, Mr. Burr and I will

have some questions and hopefully some of the Democrats will also

be back and have some questions.

So welcome to the committee.

38

STATEMENTS OF RALPH BEEDLE, SENIOR VICE PRESIDENT

AND CHIEF NUCLEAR OFFICER, NUCLEAR ENERGY INSTITUTE; AND DAVID E. ADELMAN, PROJECT ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL

Mr. BEEDLE. Thank you very much, Chairman Barton and member of the committee.

I am the Chief Nuclear Officer for the Nuclear Energy Institute

and a Senior Vice President for that organization. NEI is the policy

setting organization for the U.S. nuclear energy industry. We represent more than 275 member organizations worldwide, including

every U.S. nuclear utility, suppliers, fuel cycle companies, engineering and consulting firms, radiopharmaceutical laboratories, universities, and labor unions.

Nuclear power plants produce nearly 20 percent of the Nation’s

electricity and provide the largest source of emission free energy in

the United States. This energy source must be sustained to meet

the energy, economic, and environmental protection demands of the

21st century.

U.S. nuclear energy has built a solid record of safe, efficient performance at the Nation’s 103 nuclear power reactors, making it a

global leader in the advanced nuclear power technology. The industry continues to be committed to safe nuclear plant operation, and

must be accompanied—and that must be accompanied by the Nuclear Regulatory Commission ability to fulfill its mission for a

strong and credible regulator.

Electric utilities continue to transition to a competitive electricity

market, and the NRC must improve its efficiency and effectiveness

in its regulations.

In the past year, the Nuclear Regulatory Commissioners and

staff have taken initial steps toward meaningful regulatory reform.

The industry applauds the agency’s demonstrations that difficult

issues can be resolved, and important decisions made in an efficient and timely manner. It is important that Congress understand

and continue to provide ongoing oversight of and support for the

Nuclear Regulatory Commission in its transition to a regulatory

process that uses risk insights to focus resources on those areas

most important to maintaining the high standards of safety.

The task at hand is sustaining the effort that the Commission

started last year. This transition is an objective, safety-focused regulatory process that will require a view of statutory provisions,

some of which are no longer relevant.

Specifically, I would like to expand on three points that the industry believes merit congressional attention.

First, the cost of NRC programs that are not directly related to

the regulation of NRC licensees should not be paid for by licensees.

This was the issue that Congressman Burr raised earlier. Examples of these programs are the international activities, work in support of Federal agencies, and NRC Agreement States. This committee last year, in a report on H.R. 3532, stated and I quote: ‘‘the

NRC utilizes annual charges assessed against licensees to cover the

cost of administering programs that do not directly relate to the

regulation of or provide a direct benefit to these licensees.’’

39

In fact, the NRC itself has recommended, as you have been told earlier, that this be deleted from their budgeting process, but that

was overturned by the Office of Management and Budget. This committee, in reauthorizing the NRC, should remove these items from the user fee base.

The second item is that the NRC must develop a long-range stra- tegic plan for regulatory reform and continue its transition to a nuclear plant oversight process that focuses resources on those areas

most important to maintaining safety. And the third, the industry does, indeed, support the NRC’s leg- islative proposals contained in H.R. 3521. Of particular importance

is the designation of the NRC’s residual radiation standard as the

sole requirement for NRC license facilities for the cleanup of radioactive materials. Congress also should approve proposals to allow

foreign ownership of the commercial nuclear power plants and

eliminate the need for the NRC to conduct anti-trust reviews.

We recommend that an additional provision be considered, one

that would provide the NRC with the flexibility to redefine its organizational structure. The agency is currently restrained from doing

so by the Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974, which require that the NRC establish and maintain specific offices and functions. The industry believes that the

NRC is in the best position to determine the organizational arrangements that will enable it to fulfill its mandate to assure public health and safety. Mr. Chairman, continued oversight of the NRC by this sub- committee is important to ensure that the necessary steps toward

the broad reform of the agency are being taken in a comprehensive

and timely manner. The NRC has made tremendous progress during the past year, but it must establish a long-term vision and

work plan for making the regulatory framework of the commercial

nuclear energy industry risk-informed and performance-based and

focused on those areas that are most important to protect the public health and safety. Mr. Chairman, I want to thank the subcommittee for the opportunity to present the views of the industry and welcome any questions that members might have. [The prepared statement of Ralph Beedle follows:]

PREPARED STATEMENT OF RALPH BEEDLE, CHIEF NUCLEAR OFFICER AND SENIOR

VICE PRESIDENT, NUCLEAR ENERGY INSTITUTE

Chairman Barton, Ranking Member Hall and members of the subcommittee, my name is Ralph Beedle. I am chief nuclear officer and senior vice president of the

Nuclear Energy Institute. The Institute is the Washington-based policy organization

for the U.S. nuclear energy industry and more than 275 members in nuclear-related

fields. In addition to representing every U.S. utility that operates a nuclear power

plant, NEI’s membership includes nuclear fuel cycle companies, suppliers, engineering and consulting firms, national research laboratories, manufacturers of radiopharmaceuticals, universities, labor unions and law firms.

Nuclear power plants produce nearly 20 percent of the nation’s electricity and pro- vide the largest source of emission-free energy in the United States. Unlike any

other electric generation source, nuclear power is unique because the costs of the

entire electricity production lifecycle—including the uranium fuel manufacturing

process, NRC regulation, waste management and plant decommissioning—are included in the electricity cost to consumers. Nuclear energy’s clean air benefits are

affordably priced, with production costs that are a fraction of a cent more than production costs of coal-fired electricity and that are significantly less than natural gas,

oil, solar or wind power.

40

1 Report No. 105-680 to accompany H.R. 3532, August 6, 1998.

2 Report No. 105-223 to accompany S. 2090, June 25, 1998.

The U.S. nuclear energy industry has built an exceptional record of safe, efficient performance at nuclear power plants, making it the global leader in advanced nuclear power technology. And as the nation’s electricity demands grows as a result

of a robust economy and the expansion of sectors such as information technology,

the importance of nuclear generation will increase. Increasingly stringent U.S. clean

air regulations and international carbon dioxide reduction goals also will underscore

the importance of nuclear energy. But the industry’s continued safe and efficient nuclear plant operation must be accompanied by the Nuclear Regulatory Commission’s ability to fulfill its mission

as a strong, credible regulator. As utilities continue to make the transition to a competitive electricity market, the NRC must seek to maintain public trust and confidence in the safety of nuclear energy while improving the efficiency and effectiveness of its regulations. Not surprisingly, the transition to an objective, safety-focused regulatory process will require a review of statutory provisions are no longer relevant in the evolving

regulatory environment and as extensive operating experience has been gained at

the nation’s 103 nuclear power plants.

The Institute fully supports the NRC’s legislative proposals contained in H.R. 3521. I would like to expand on three nuclear regulatory issues that the industry

supports—some of which are contained in NRC’s proposal—and that are significant

enough to merit congressional attention:

• The cost of NRC programs that are not directly related to regulating NRC licensees should not be included in user fees assessed to those licensees; • The need for NRC to develop a long-term plan for reforming regulatory procedures

and to continue its transition to a regulatory culture that draws on 30 years

of regulatory and industry experience and lessons learned; • The industry supports NRC’s legislative proposals detailed in Title II of H.R.

3521. Of particular importance to the nuclear industry is the designation of

NRC standards for residual radiation as the sole requirement for the radiological cleanup of Atomic Energy Act material at NRC-licensed facilities as well

as the proposals to allow foreign ownership of nuclear plants and to eliminate

antitrust reviews conducted by the NRC. In addition to the NRC proposals mentioned above, the industry believes Congress should grant the NRC greater

management flexibility by eliminating Atomic Energy Act requirements so that

NRC may reorganize its staff and programs amid the agency’s transition to objective, safety-focused regulatory practices.

Adjusting NRC’s User Fee

For the past nine years, the NRC has submitted a budget that is essentially fully funded through user fees collected from its licensees. Last year, Congress approved

a single-year extension to the NRC’s authority to collect this 100-percent user fee.

The agency’s user fee initially was set at 33 percent of NRC’s budget. However, Congress, as part of the Omnibus Budget Reconciliation Act of 1990, required the agency to recover approximately 100 percent of its budget authority by assessing annual

fees upon NRC licensees.

Under the 1990 law, NRC licensees must pay for the cost of NRC activities de- voted to regulation. However, some of NRC’s activities are unrelated to the regulation of nuclear power plants. Among the unrelated programs for which licensees

should not bear the costs are: international activities; oversight of agreement states;

license review work for other federal agencies; fee reductions to subsidize nonprofit

educational institutions and small entities; decommissioning management and reclamation activities; and other generic activities. These activities, totaling approximately $50 million annually, should be removed from the user fee. If these activities

are required, they are more appropriately financed with general revenues. This recommendation is not a new concept. Last year, this committee, in its report on H.R. 3532, stated that ‘‘the NRC utilizes annual charges assessed against licensees to cover the costs of administering programs which do not directly relate to the regulation of, nor provide a direct benefit to, these licensees.’’ 1 The Senate Environment and Public Works Committee agreed and in its 1998 report accompanying S.

2090, stated that the ‘‘concerns about fair and equitable assessment of fees continue

to be relevant today.’’ 2 That committee concluded that ‘‘the cost of such activities

should not be recovered through fee collection, but rather through direct appropriation.’’

Congressional appropriators are well aware of the legitimacy of these arguments. Just last week, the House Appropriations Subcommittee on Energy and Water urged

41

3 Report to the Congress on the U.S. Nuclear Regulatory Commission’s Licensee Fee Policy Review, February 1994. 4 ‘‘OMB Rejects NRC Efforts To Remove Generic Activities From Fee Base,’’ Inside N.R.C.,

March 1, 1999.

the NRC and the White House to remove these expenditures from user fees to licensees. Meanwhile, the Senate Appropriations Committee last year appropriated

$33 million from general revenues to pay for several NRC programs. That provision,

however, later was dropped.

Even the NRC is in agreement on this matter. A 1994 report from the NRC In- spector General concluded that NRC’s existing user fee should be adjusted to ‘‘minimize licensees’ major concerns about fairness, equity and the administrative burden

of fees.’’3 The trade press reported that the NRC’s fiscal year 2000 budget rec- ommendation to the Office of Management and Budget included a proposal that

these programs be supported by general revenues, not user fees.4 OMB was reported

to have overruled this proposal.

In addition, the NRC has, in our view, failed to meet the requirement that user

fees ‘‘to the maximum extent possible have a reasonable relationship to the cost’’

of the services being rendered. Nearly 80 percent of the user fee is collected as a

generic assessment levied against NRC licensees; the remainder is levied for discrete services. The NRC has, in effect, created a ‘‘miscellaneous’’ category that encompasses most of its budget. This practice is not only contrary to sound and accountable budgeting, but also counter to congressional mandates. Mr. Chairman, authorizers, appropriators, regulators and the industry alike agree that the user fee should be adjusted to eliminate approximately $50 million in unrelated fees. This subcommittee, given its jurisdiction on this issue, is the appropriate

body to authorize the user fee adjustment and recommend the NRC institute more

accountable budget practices.

NRC Reform Focuses on Issues Most Important To Safety

The NRC deserves recognition for taking initial, positive steps toward regulatory reform based upon the industry’s improved safety performance and efficiency gains

during the past three decades. Specifically, the new power reactor oversight process

that is being tested at nine pilot plants should focus NRC and industry resources

on matters most important to safety. Under the new process, NRC inspections, plant

assessments and enforcement actions will have a greater safety focus than in the

past. Additionally, the NRC has applied insights from probabilistic risk analyses to

adjust requirements in the areas of in-service testing, in-service inspection, quality

assurance and plant technical specifications.

Although real progress has been made, the improved safety focus applied in the aforementioned activities needs to be incorporated throughout NRC regulation and

agency processes for overseeing the industry. This measure is necessary to ensure

consistency across requirements and processes and to best utilize NRC and industry

resources. In addition, NRC’s reform effort must be sustained and its gains must be tangible. Change is a difficult, sometimes slow process. To ensure the NRC’s continued success in this endeavor, the agency should, at this subcommittee’s request, formulate

a multi-year blueprint that provides a detailed set of key planning assumptions and

measurable goals to be met as part of its effort to become a more safety-focused and

performance based body. This multi-year blueprint should serve as a living document that is updated annually. Specifically, the subcommittee should urge the NRC to develop and implement a

long-range strategy to include the following principles:

• a safety-focused regulatory framework that incorporates risk insights;

• an efficient and accountable regulatory agency;

• an integrated NRC strategy for achieving the objectives of regulatory reform;

• a specific timetable and milestones to ensure the NRC’s long-range plan is implemented on schedule; and

• staff resources and a fully accountable budget that supports fundamental NRC reform while focusing on significant regulatory activities for the future, such as

license renewal.

In addition, this multi-year plan should include an annual accounting of meaningful NRC objectives with measurable results. It also should recognize improved plant

safety and performance and account for new demands on the regulatory process as

a result of the transition to a competitive electricity market.

The industry recommends that this subcommittee request annual and multi-year

reports from the NRC documenting its progress in implementing regulatory reform

with an attainable budgeting process.

42

Industry Supports NRC’s Legislative Proposals

Mr. Chairman, the NEI supports the 11 legislative proposals the NRC submitted to Congress under Title II of H.R. 3521. Although most of the proposals pertain to

procedural measures, three deserve a more detailed explanation.

First, this subcommittee is uniquely positioned to resolve the impasse between the NRC and the Environmental Protection Agency in setting radiation cleanup standards for NRC-licensed facilities. This duplicative regulation exists in many areas,

but is most apparent in establishing residual radiation standards for the remediation of radioactive materials at NRC-licensed sites.

Resolving this impasse is particularly important at sites where nuclear plants closed and are in the process of being torn down. The NRC has set a radiation cleanup standard based on sound science and experience that fully protects public safety

and the environment. Because the EPA has traditionally followed a significantly different radiation standard compared to the NRC. In fact, the EPA has threatened

to intervene at sites once the NRC has determined that radiation standards will be

met and has withdrawn its own regulatory oversight of the property. Therefore, decommissioned sites face contradictory dual federal regulation regarding the same

issue.

The NRC implemented a 1997 rule for license termination that insures full protection of public health and safety through a comprehensive radiation protection program based on limiting the total radiation exposure to the public. The NRC issued

its rule after four years of thorough scientific study and extensive public input including more than 7,000 comments from the scientific and professional community,

state, tribal and local governments, environmental groups and NRC licensees. The

EPA was an active participant in the NRC’s process. The NRC has used its rule

to successfully decommission more than 70 sites. The EPA’s continued efforts to develop a radiation standard and to ignore the NRC standard inappropriately focuses resources on a bureaucratic stalemate. This

effort detracts from the primary mission of safe and effective site cleanup. It violates

the Clinton Administration’s 1993 Executive Order that restricts federal agencies

from creating duplicative regulations that result in an unreasonable expense to the

American people. The EPA’s guidance is inconsistent with the NRC’s deliberate, scientific approach to decommissioning standards for nuclear power plants. The second NRC proposal is a shared goal of the nuclear energy industry—to im- prove the efficiency of the nuclear regulatory process by eliminating statutory requirements that the NRC conduct antitrust reviews while preserving NRC authority

on existing antitrust license conditions. Section 105c of the Atomic Energy Act affords the NRC broad authority to conduct antitrust reviews when power plant licenses are issued. Under that authority, the

operating licenses of 34 commercial nuclear power plants contain antitrust provisions. As the industry moves forward in a competitive market, utilities will be making decisions regarding restructuring of their companies that the NRC may conclude

have potential antitrust implications. These decisions could become subject to antitrust reviews by the NRC under Section 105c. Yet Congress has given other federal

agencies comprehensive responsibility to enforce antitrust laws affecting electric

utilities. For example, the Justice Department, the Federal Trade Commission, the

SEC and state governmental agencies all will examine restructuring decisions for

potential antitrust issues.

As such, Section 105c no longer serves a valid purpose and should be rescinded. Instead, the NRC should focus its resources on its fundamental mission of protecting public health and safety. Although the industry recommends that section

105c be repealed, sections 105a and 105b continue to serve valid purposes. Section

105a clarifies that federal antitrust laws apply to NRC licensees, and section 105b

requires the NRC to report to the U.S. attorney general any information that might

represent a violation of antitrust laws.

The third NRC proposal concerns the Atomic Energy Act’s restriction on foreign ownership of U.S. commercial nuclear power plants. This provision seems somewhat

of anachronism because of the global political and worldwide economic changes that

have occurred since the passage of the Atomic Energy Act. The statute prohibits the

NRC from issuing a commercial reactor license to a foreign entity; to any entity

which is owned, controlled, or dominated by a foreign entity; or if the NRC determines that license issuance would be ‘‘inimicable to the common defense and security’’ of the United States. The subcommittee should eliminate this outdated provision, as recommended by the NRC and the industry.

The Atomic Energy Act’s foreign ownership provisions were drafted at the infancy

of the nuclear age, when the United States had good reason to restrict access to nuclear technology by prohibiting foreign ownership of U.S. facilities. Times have

changed and prohibiting foreign ownership of commercial facilities by U.S. allies no

43

longer makes sense. In fact, the prohibition on foreign ownership eliminates sources

of investment capital and operating expertise that we should be encouraging, not

discouraging. Therefore, the industry agrees with the NRC that the statute should

be amended to remove the prohibition on foreign ownership and to reflect the new

global business environment, where large capital-intensive projects are routinely developed by multi-national corporations and financed through international credit

markets. The amendment should, however, preserve the NRC’s authority to take all

steps necessary to protect the common defense and security of the United States.

In addition to the NRC proposals mentioned above, the industry believes Congress

should grant the NRC greater latitude to reorganize its staff and programs amid

the agency’s transition to a new, streamlined approach regulatory practices. Currently, the NRC is restrained from doing so by a statutory relic. The Atomic Energy

Act of 1954, as amended, and the Energy Reorganization Act of 1974 require the

NRC to establish specific offices and functions.

The industry believes the NRC is best positioned to determine what organizational arrangement will enable it to fulfill its legal mandate to protect public health

and safety and the common defense and security associated with the use of nuclear

materials. In our view, Congress should not mandate the NRC’s organizational

structure. Those requirements merely create an unwarranted burden for the agency

and should be repealed by this subcommittee.

Conclusion

In summary, Mr. Chairman, the industry supports most of NRC’s legislative

amendments, including the agency’s objectives to enhance security at NRC-licensed

facilities, to eliminate restrictions on foreign ownership of power reactors and research reactors and to eliminate NRC’s antitrust review authority for pending or

new applications for a license to construct or operate a nuclear plant.

The industry also looks to this subcommittee to adopt authorizing language that

would accomplish the following goals:

• The reauthorization of the NRC’s user fee in a manner that does not require NRC

licensees to pay for programs that do not directly benefit them;

• The NRC’s submission to Congress of a long-term blueprint for regulatory reform

that provides measurable objectives and anticipated results. This strategic plan

would serve as a valuable resource for stakeholders involved and affected by

NRC’s reform efforts;

• The industry supports NRC’s legislative proposals detailed in Title II of H.R.

3521. Of particular importance to the nuclear industry is the designation of

NRC standards for residual radiation as the sole requirement for the radiological cleanup of Atomic Energy Act material at NRC-licensed facilities as well

as the proposals to allow foreign ownership of nuclear plants and to eliminate

antitrust reviews conducted by the NRC. In addition to the NRC proposals mentioned above, the industry believes Congress should grant the NRC greater latitude by eliminating Atomic Energy Act requirements so that the NRC can reorganize its staff and programs amid the agency’s transition to a new, streamlined approach regulatory practices.

• The elimination of impediments to NRC’s reform, including language in the Atomic Energy Act of 1954 and the Energy Reauthorization Act of 1974 that prevent

the NRC from determining its own organizational structure.

Mr. BARTON. Thank you, Mr. Beedle. Mr. Adelman.

STATEMENT OF DAVID E. ADELMAN

Mr. ADELMAN. First, I would like to thank the committee for giving me the opportunity to speak today. My testimony will focus on

two issues. First, the Army Corps of Engineers implementation of

the formerly utilized——

Mr. BARTON. Pull the microphone up a little bit closer. Thank

you, sir.

Mr. ADELMAN. My testimony will address two issues. First, the

Army Corps of Engineers implementation of the formerly utilized

Site Remediation Action Program, or FUSRAP. NRDC is specifically concerned about the disposal of radioactive materials at unlicensed facilities. NRDC opposes this based on policy, legal, and

technical grounds.

44

The second issue I will address concerns the two amendments

proposed to the Superfund law, where NRC facilities would be exempt from Superfund actions if they were closed according to NRC

regulations. NRDC strongly opposes this, based both on policy and

technical bases.

The FUSRAP program began in 1974 to clean out Manhattan

Project sites, and involves removing and disposing of large quantities of radioactive waste. The Army Corps of Engineers decision

to dispose of some of that material in unlicensed facilities is based

on a highly formalistic argument that Uranium Mill Tailings Act

of 1978 does not apply retroactively. In other words, that it does

not apply to radioactive waste generated prior to passage of the Act

in November 1978. This is a classic instance of form over substance.

As a basic matter of public policy, regulation of radioactive materials should not be contingent on the date on which it was generated. In the 1978 Act, Congress adopted a new definition of radioactive byproduct material to extend NRC’s regulatory authority

over all radioactive waste generated in the course of the nuclear

fuel cycle. The statute refers to active and inactive sites. It is implicit in these references that Congress’ intent—that the Act applied to pre-1978 waste.

Furthermore, in the leading case, Kerr-McGee, the court found

that the purpose of the 1978 Act was to close the regulatory gap.

Prior to 1978, uranium and thorium mill tailings and byproduct

materials from their processing was not regulated.

Congress’ intent was to ensure that these materials were properly handled and disposed of in an environmentally sound manner.

Disposing of radioactively contaminated waste in hazardous

waste facility raises significant environmental concerns.

First, it circumvents public participation processes that are part

of NRC licensing.

Second, it poses potentially significant risks to groundwater, as

RCRA does not regulate radioactively contaminated wastes.

Third, worker health and safety regulations do not address risks

associated with radioactive materials.

And fourth, hazardous disposal sites are not constructed to contain long-lived radioactive contaminants. In other words, this represents a significant erosion of radioactive waste disposal standards.

Although NRDC maintains that the 1978 Act is clear, the policy

of NRC and the Corps requires Congress to clarify the statute to

state explicitly that it also applies to radioactive waste generate

prior to 1978.

The second issue I want to address are the two proposed amendments to Superfund exempting NRC license facilities from Superfund actions once their license is properly terminated.

The proposed amendment single out NRC license facilities for exemption from Superfund. Accordingly, the burden should be on the

proponents to demonstrate why releases of radioactive contaminants from these facilities should receive this special treatment.

From a technical perspective, this is not justifiable. Cleanup of radioactive materials relies on the same technologies and raises the

45

same environmental concerns, such as groundwater and surface

waters, that cleanup of hazardous waste prevent.

Once a site license terminates, EPA is the regulating authority. Eliminating Superfund actions removes EPA’s primary vehicle for

addressing environmental releases. This is of particular concern because NRC relies on a global site standard. As a result, a release

could comply with the NRC standard, but violate Safe Drinking

Water Act regulations. Accordingly, EPA must have authority to

protect critical groundwater resources. NRDC urges the committee to reject the proposed amendments to Superfund.

[The prepared statement of David E. Adelman follows:]

PREPARED STATEMENT OF DAVID E. ADELMAN, PROJECT ATTORNEY, NUCLEAR

PROGRAM, NATURAL RESOURCES DEFENSE COUNCIL

Chairman Bliley and Members of the Committee, I appreciate this opportunity to appear before you today to discuss certain aspects of H.R. 2531, a bill authorizing

appropriations for the Nuclear Regulatory Commission (‘‘NRC’’). My comments will

focus on two issues: (1) NRC oversight of the implementation by the U.S. Army

Corps of Engineers’ (‘‘USACE’’) of the Formerly Utilized Sites Remedial Action Program (‘‘FUSRAP’’); and (2) the proposed amendments to the Comprehensive Environmental Response, Compensation and Liability Act, (‘‘CERCLA’’ or ‘‘Superfund’’),

42 U.S.C. § 9601 et seq., which would effectively exempt from CERCLA all NRC-licensed facilities once their license is properly terminated.

The Natural Resources Defense Council, Inc. (‘‘NRDC’’) is a national non- profit

membership environmental organization with offices in Washington, D.C., New York

City, San Francisco and Los Angeles. NRDC has a nationwide membership of approximately 450,000 individuals. NRDC’s activities include maintaining and enhancing environmental quality and monitoring federal agency actions to ensure that federal statutes enacted to protect human health and the environment are fully and

properly implemented. Since its inception in 1970, NRDC has sought to improve the

environmental, health, and safety conditions at and surrounding nuclear facilities

operated by Department of Energy (‘‘DOE’’) and its predecessor agencies and the

commercial nuclear sector.

I. IMPLEMENTATION OF THE FUSRAP PROGRAM

FUSRAP provides for the clean-up and disposal of radioactive materials at various

industrial facilities around the country that once performed work as part of the

Manhattan Project and other early activities of the Atomic Energy Commission.

DOE began implementation of FUSRAP in 1974, when it was recognized that a

number of industrial sites associated with nuclear weapons and energy programs

during the 1940s, 1950s, and 1960s contained substantial levels of radioactive contamination (primarily uranium and thorium).

According to DOE, a total of 46 sites have been identified for cleanup under

FUSRAP. By 1997, cleanup had been completed at 25 of these sites. There are thus

21 remaining sites to be cleaned up under the program, located in Connecticut, Illinois, Maryland, Massachusetts, Missouri, New Jersey, New York and Ohio. The

cleanup work under FUSRAP consists primarily of the treatment or removal of soil

and other substances containing radioactive ‘‘byproduct material,’’ as defined in

Atomic Energy Act (‘‘AEA’’), 42 U.S.C. § 2014(e).

A. Congress’ Transfer of Responsibility for The FUSRAP Program to USACE

On October 13, 1997, Congress transferred administration of FUSRAP from DOE

to USACE in the 1998 Energy and Water Development Appropriations Act, Pub. L.

No. 105-62. Subsequently, in the Energy and Water Development Appropriations

Act of 1999, Congress affirmed USACE’s responsibility for and provided funding for

FUSRAP. At this time, Congress also clarified two issues: (1) USACE’s implementation of FUSRAP was ‘‘subject to the administrative, procedural, and regulatory provisions’’ of CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Part 300; and (2) ‘‘. . . except as stated herein, these provisions do not alter, curtail or limit the authorities, functions or responsibilities of

other agencies under the Atomic Energy Act . . .’’

USACE, however, does not have authority to handle the radioactive materials involved in implementing FUSRAP. According to a letter to the Secretaries of Energy

46

1Letter dated November 6, 1997 from Senator Pete V. Domenici and Representative Joseph

M. McDade to Secretary of Energy Federico Pena and Secretary of Defense William S. Cohen. 2Letter dated January 14, 1999, from William J. Dennison, Assistant General Counsel for En- vironment at DOE, to John T. Greeves, Office of Waste Management at NRC. 3These fears have been born out at one of the sites in North Tonawanda, New York, where

USACE has proposed a cleanup standard that is ten times weaker than that proposed by DOE

when it was implementing the cleanup. To reduce costs, USACE is relying on substantially relaxed cleanup standards.

and Defense from Senator Pete V. Domenici and Representative Joseph M. McDade,

the Chairmen of the Senate and House Subcommittees on Energy and Water Development, the transfer of budget authority over FUSRAP to USACE was not intended

to affect DOE’s regulatory authority over the program. Instead, Congress apparently

expected ‘‘that basic underlying authorities for the program [would] remain

unaltered and the responsibility of DOE.’’ 1 There is nothing in the Act to suggest a contrary result; the text does not grant USACE anything beyond budget authority

over FUSRAP.

DOE maintains that ‘‘[t]he [FUSRAP] transfer legislation did not make the Corps a DOE contractor, or otherwise subject the Corps’ activities to the control or direction of DOE.’’ 2 Further, while DOE defers to NRC to determine whether USACE

is required to obtain an NRC license, the Department has stated that NRC ‘‘should

evaluate the licensability of the Corps’ activities in the same manner as it would

evaluate the activities of any other ‘‘person’’ within the meaning of the Atomic Energy Act.’’ DOE has also questioned whether USACE could rely solely on CERCLA authority to avoid NRC oversight. Specifically, CERCLA exempts most cleanup activities from

federal, state, or local licensing requirements, 42 U.S.C. § 9621(e); although, as NRC and USACE concede, this exemption applies only to activities at the cleanup site

(i.e., not off-site shipments or disposal). Despite the unique challenges posed by en- vironmental cleanups involving radioactive materials and USACE’s lack of regulatory authority—or regulations—to handle radioactive materials, both NRC and

USACE have invoked the CERCLA exemption to shield USACE from the AEA requirement that it obtain an NRC license.

This is a profound problem for two reasons. First, the NRC has as its fundamental goal the safety and security of the nation’s nuclear activities. The same cannot be said of USACE. Its institutional mission is, by design, focused on other matters. Certainly it must be acknowledged that the army’s record of handling nuclear

and other hazardous wastes is not good.3 The dangers posed by the handling of ra- dioactive waste counsel strongly in favor of NRC licensing of the FUSRAP program

as administered by USACE. The numerous matters implicated by USACE’s unregulated handling of FUSRAP wastes, including worker protection, cleanup standards,

property rights and long term liability, can only benefit from NRC oversight. Second, and more fundamentally, the laws governing the utilization and cleanup of nuclear materials are simply too important to allow them to be ignored. In recognition of the highly technical nature of radioactive materials and of the extreme

dangers they pose, Congress reposed responsibility for the administration of those

laws in the NRC and, to a lesser extent, DOE. In short, an environmental cleanup

action involving radioactive materials is not your typical Superfund project, particularly where as here the contaminants remain hazardous for many thousands of

years. Congress has commanded that, with very few exceptions, no agencies other than DOE be permitted to handle nuclear materials except in accordance with a license

issued by the NRC. To now allow USACE to handle the radioactive materials associated with FUSRAP cleanups without licensing and oversight by the NRC flouts Congressional intent. Accordingly, as part of the transfer of authority over FUSRAP to

USACE, Congress should require that it first obtain a license from the NRC.

B. Off-Site Disposal of FUSRAP Radioactive Wastes at Unlicensed Facilities

USACE’s disposal of radioactive waste at the Safety-Kleen facility in Buttonwillow, California, which is not licensed by the NRC, has generated substantial public, state, and Congressional attention. More than 2,200 tons, or about 83

rail cars, of radioactive waste from a site in northern New York state was disposed

at the Safety-Kleen facility, which is permitted under Part C of the Resources Conservation Recovery Act (‘‘RCRA’’), 42 U.S.C. §§ 6901 et seq., but neither designed nor permitted to dispose of radioactive wastes. In addition, USACE inadvertently sent

another 86 tons of radioactive byproduct material, mainly contaminated soil, to a

non-hazardous, solid-waste landfill in Ohio.

Although USACE and the NRC concede that off-site disposal of radioactive waste is not exempt from NRC’s licensing requirements, they claim that radioactive waste

47

4 In enacting the Uranium Mill Tailings Radiation Control Act (‘‘UMTRCA’’) of 1978, Congress

expanded the definition of byproduct material to include ‘‘the tailings or wastes produced by the

extraction or concentration of uranium or thorium from any ore primarily for its source material

content.’’ 42 U.S.C. § 2014(e)(2). 5The AEA also prohibits the transfer or receipt in interstate commerce of any byproduct material unless licensed by the NRC or otherwise authorized under AEA Sections 82 and 84, 42

U.S.C. §§ 2112, 2114.

from certain FUSRAP sites (12 out of the remaining 21) is not covered by the AEA

and need not be disposed at an NRC-licensed facility. However, the same types of

byproduct material removed from the remaining 9 FUSRAP sites are covered by the

AEA, according to NRC and USACE, and must be disposed of at NRC-licensed facilities.

The Atomic Energy Act mandates disposal of radioactive ‘‘byproduct material’’ at a licensed facility. 42 U.S.C. §§ 2112, 2114 (prohibiting transfer or receipt of byprod- uct material at an unlicensed facility).4 Accordingly, the NRC has long had a policy requiring disposal of byproduct material only at licensed facilities. This policy is

based on the goal of protecting public health and the environment. USACE’s disposal of byproduct material from certain FUSRAP sites at unlicensed facilities

therefore violates the AEA and is contrary to long-established NRC policy. The NRC and USACE acknowledge that radioactive wastes generated at the FUSRAP sites are ‘‘byproduct materials’’ as that term is defined in Section 11(e)(2)

of the Atomic Energy Act, 42 U.S.C. § 2014(e)(2).5 However, they claim that because certain byproduct material was generated prior to 1978, the year in which Congress

closed the loophole on NRC regulation of such waste by passing UMTRCA, and resulted from activities that were not licensed by the NRC in or after 1978, it is not

covered by the AEA and need not be disposed at an NRC-licensed facility. Under

this reasoning, such wastes could be disposed of at a regular landfill if they do not

contain hazardous constituents. Accordingly, the factor governing whether FUSRAP

radioactive wastes must be disposed of at an NRC-licensed facility is whether it was

originally generated prior to the passage of UMTRCA.

NRC’s and USACE’s assertion that UMTRCA does not apply to pre-1978 wastes

is contrary to established law. In the Findings and Purpose section of UMTRCA,

Congress concludes that there are ‘‘potential and significant radiation hazard[s] to

the public’’ from ‘‘mill tailings located at active and inactive mill operations.’’ 42

U.S.C. § 7901(a). In this section, Congress further states that ‘‘[t]he purposes of this

Act are to provide’’(1) in cooperation with the interested States, Indian tribes, and

the persons who own or control inactive mill tailings sites, a program of assessment

and remedial action at such sites... and (2) a program to regulate mill tailings during uranium or thorium ore processing at active mill operations . . .’’ 42 U.S.C.

§ 7901(b). Congress’ intent in enacting UMTRCA is clear from this language:

UMTRCA applies to byproduct material generated at sites closed prior to passage

of the Act in 1978.

The leading case interpreting UMTRCA, Kerr-McGee v. NRC, 903 F.2d 1 (D.C.

Cir. 1990), affirms the plain meaning of the statute. In Kerr-McGee, the Court held

that ‘‘. . . the definition of ‘byproduct material’... adopted by Congress was designed

to extend the NRC’s regulatory authority over all wastes resulting from the extraction or concentration of source materials in the course of the nuclear fuel cycle.’’

Kerr-McGee, 902 F.2d at 7 (emphasis in original). Moreover, it is implicit in the

Kerr-McGee holding that UMTRCA applies retroactively to wastes generated prior

to 1978, as the byproduct material in question was generated from 1931 until 1973,

when the Kerr-McGee mill closed. This finding is further born out in the Court’s

finding that the UMTRCA legislative history evinces two purposes:

[F]irst, to close the gap in NRC regulatory jurisdiction over the nuclear fuel

cycle by subjecting uranium and thorium mill tailings to the NRC’s licensing

authority; and second, to provide a comprehensive regulatory regime for the

safe disposal and stabilization of the tailings. Title I of UMTRCA provided a

specific remedial program for twenty designated inactive uranium milling sites.

Title II established a comprehensive remedial program for mill tailings at all

other sites.

Kerr-McGee, 902 F.2d at 3. In concluding, the Court found that the new definition

of byproduct material in UMTRCA ‘‘serves as the trigger for determining what materials are to be subject to the remedial program established by Title II’’—date of

generation is not a relevant factor. Id.

USACE’s decision to dispose of radioactive wastes in unlicensed facilities and

NRC’s decision to sanction it runs counter to basic common sense, technical reasoning, and established law. There is no basis to distinguish pre-1978 byproduct

wastes from those generated after 1978, whether legally or scientifically. Indeed, in

48

6 Resolution Relating to Regulation of 11(e)(2) Radioactive Material, and the Transfer of the

Formerly Utilized Sites Remedial Action Program (FUSRAP) to the U.S. Arm Corps of Engineers (May 20, 1998).

their own briefings, NRC staff have acknowledged as much by referencing portions

of the Kerr-McGee opinion holding that UMTRCA applies to ‘‘all’’ byproduct material. See NRC’s Staff’s Brief and Evidence on Issues raised by The State of Utah

(January 6, 1993).

As the Conference of Radiation Control Program Directors has found, it make no

sense from a technical perspective to base regulation of radioactive waste on when

the material was generated—time is not a relevant factor when wastes remain hazardous for many thousands of years. Moreover, this is consistent with disposal practices at FUSRAP sites to date, where radioactive wastes have been disposed of at

facilities licensed by the NRC or by agreement states or at DOE-operated sites. The

Conference has formerly recommended that the NRC ‘‘reconsider its position on

their lack of jurisdiction over 11(e)(2) byproduct material processed before the enactment of UMTRCA in 1978.’’ 6

Disposal of radioactive wastes in unlicensed facilities raises important environment risks, as these facilities are not designed to handle large volumes of long-lived

radioactive materials. The risks include threats to local groundwater (monitoring

doesn’t include radionuclides); inadequate or inappropriate worker health and safety

regulations (inhalation standards for radionuclides are of particular concern); and

failure to provide for long-term institutional controls to prevent future intrusions

that could release contaminants from the site long after it has closed—this a particular concern where long-lived radioactive materials, such as uranium and thorium, are involved. These deficiencies have important implications for DOE, which

may become responsible for monitoring sites requiring institutional controls to protect the public and environment against releases of radioactive materials in the

long-term. 42 U.S.C. § 10171(b); see also 62 Fed. Reg. 39070 (July 21, 1997).

Disposing of radioactive wastes at a hazardous waste facility, or a solid-waste

landfill, also circumvents proper public oversight. Because RCRA permitting does

not contemplate disposal of radioactive wastes from industrial facilities, no prior notice is provided to the public that radioactive byproduct materials could be disposed

at such facilities. The public therefore has no opportunity to assess radioactive

waste disposal at RCRA facilities. This was a central issue for the Safety-Kleen site,

particularly following the heated debate over the proposed site of a low-level radioactive waste facility in Ward Valley, California. By avoiding any opportunity for

public or State review and comment, the disposal of radioactive wastes at the Safety-Kleen facility circumvented NRC-mandated public participation that is required

for all properly licensed radioactive waste disposal facilities.

Although it is NRDC’s position that the AEA clearly and unequivocally applies

to all radioactive byproduct material, regardless of when it was generated, recent

NRC and USACE actions demonstrate that further clarification by Congress of the

applicability of NRC regulatory authority is necessary to safeguard the public and

environment. Congressional intervention is of particular importance in this case because opportunities for court actions are limited under both Superfund and the

AEA. NRDC requests that Congress add language to the AEA further clarifying that

UMTRCA applies to both pre- and post-1978 radioactive byproduct material.

II. PROPOSED AMENDMENT TO SUPERFUND IN H.R. 2531

The proposed amendments in H.R. 2531, Section 207, would preclude initiating

Superfund cleanup actions at NRC-licensed facilities closed pursuant to NRC’s License Termination Rule, 10 C.F.R. Subpart E. More specifically, the amendments

propose two important changes: (1) releases of source, special nuclear, or byproduct

material, as defined by the AEA, from a facility properly closed pursuant to NRC

regulations are defined as ‘‘federally permitted releases’’; and (2) administrative or

judicial actions may not be commenced under Superfund with respect to any source,

special nuclear, or byproduct material subject to NRC decontamination standards.

Remediating environmental releases from properly closed NRC-licensed facilities

therefore could only be initiated by NRC pursuant to its license termination regulations.

The NRC License Termination Rule permits additional cleanup to be required

‘‘only if, based on new information, [NRC] determines that criteria of this subpart

were not met and residual radioactivity remaining at the site could result in a significant threat to public health and safety.’’ 10 C.F.R. § 20.1401(c). The NRC regulations do not provide for public involvement, prescribe any process that must be followed to develop a cleanup plan, nor require financial assurances to ensure that faVerDate 27-JAN-2000 14:51 Feb 01, 2000 Jkt 010199 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 E:\HEARINGS\58507 txed02 PsN: txed02
49

cility owners will have the resources to undertake post-closure cleanup actions. Although NRC acknowledges the importance of and requires that financial resources

be set aside for long-term monitoring and maintenance at facilities where institutional controls are necessary, 10 C.F.R. § 20.1403(c), it has not taken any measures

to ensure that funding will be available for post-closure cleanup actions.

NRC has premised its regulations on the belief that environmental releases from

formerly licensed facilities will rarely rise to a level that threatens public health.

62 Fed. Reg. 39081. The NRC regulations therefore establish a presumption against

further cleanup, unless a significant threat to public health exists; in other words,

unless an environmental release that would typically be actionable under Superfund

exists. Yet, NRC has not established any of the mechanisms for undertaking a

cleanup that are provided for in Superfund. The NRC regulations say little or nothing about the circumstance requiring a cleanup action or how it would proceed.

Superfund contains numerous mechanisms for undertaking cleanup actions to address significant environmental releases. Superfund is structured to ensure that environmental releases are effectively remediated in a timely manner, that resources

are available to permit a cleanup to proceed, that affected communities are consulted, and that liability is reasonably apportioned.

While the issues that typically complicate cleanup actions under Superfund may

not apply in the near term, as ownership and responsibility is unlikely to be disputed, this is not likely to continue for the indefinite future. Unanticipated factors

(e.g., failure of institutional controls, changes in land use) likely to cause significant

releases at closed facilities are more likely to manifest themselves in the future,

when ownership and liability issues are no longer clear. The analyses that support

closure plans at NRC sites are based on assessing risks over a 1000-year period,

which implies that long-term impacts from NRC-licensed sites are important. However, such estimates become more uncertain the further out in time they are extended. Accordingly, future risks of environmental releases therefore cannot be accurately predicted.

There is no reason to exempt facilities that have been closed pursuant to NRC

regulations from Superfund, particularly when NRC has not instituted any measures to ensure that post-closure cleanups can be effectively implemented. By its very

nature, Superfund is structured to address major environmental releases; accordingly, there is no danger that it could be used to override NRC license termination

regulations. Further, according to NRC, the potential for a major release occurring

after a licensed facility is closed is very low; it would be the rare exception. It is

under just such circumstances that the well-developed mechanisms written into

Superfund will be most needed. NRDC therefore urges the Committee to reject the

proposed amendments to Superfund in H.R. 2531.

Mr. BARTON. Thank you, Mr. Adelman. The Chair would recognize Mr. Hall for the first 5 minutes of questions.

Mr. HALL. Mr. Chairman, ranking member Dingell has on the

12th of July sent a letter to Chairman Dicus, and I would like

unanimous consent to put this in record.

Mr. BARTON. Without objection, so ordered.

[The information referred to follows:]

U.S. HOUSE OF REPRESENTATIVES

COMMITTEE ON COMMERCE

WASHINGTON, DC 20515-6115

July 12, 1999

The Honorable GRETA JOY DICUS

Chairman

Nuclear Regulatory Commission

11555 Rockville Pike

Rockville, Maryland 20852

DEAR CHAIRMAN DICUS: I am writing in regard to the Nuclear Regulatory Commission’s (NRC) regulation of byproduct materials under Section 11(e)(2) of the

Atomic Energy Act. In particular, I am concerned about the NRC’s regulation of disposal of wastes collected under the Formerly Utilized Sites Remedial Action Program (FUSRAP).

I understand that the NRC recently determined that waste from the FUSRAP

program generated prior to 1978 is not subject to regulation under Section 11(e)(2).

Rather, NRC has determined that such waste may be sent to disposal sites reguVerDate 27-JAN-2000 14:51 Feb 01, 2000 Jkt 010199 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 E:\HEARINGS\58507 txed02 PsN: txed02
50

lated under the Resource Conservation and Recovery Act (RCRA) rather than to disposal sites regulated by the NRC. This raises a number of serious questions:

(1) How will this action improve protection of the public health and the environment?

(2) Please provide copies of the studies NRC used in making its health and safety

determinations.

(3) What are the qualitative differences in the radioactive constituents of pre- and

post-1978 Section 11(e)(2) by-product material that compel NRC to require two distinct disposal standards?

(4) Please detail the differences between NRC requirements in radioactive waste

disposal and disposal under RCRA, specifically:

a. What controls or protections exist at RCRA landfills that ensure the protection

of public health, safety and the environment from radioactive byproduct materials disposed at such facilities?

b. What protections are in place to ensure worker health and safety from the risks

of exposure to radioactivity at RCRA landfills that have accepted Section

11(e)(2) byproduct material for disposal from the Army Corps of Engineers

under the FUSRAP program?

c. Do RCRA sites require a performance assessment to demonstrate long-term protectiveness for the disposal of radionuclides?

d. What type of groundwater modeling is required of RCRA sites to ensure protection of groundwater quality for at least 1,000 years?

e. What type of public involvement have RCRA sites provided to allow for public

input to allow the disposal of radioactive waste in facilities that have not been

permitted or designed for the disposal of Section 11(e)(2) byproduct material?

(5) Overall, which sites are more protective of public health, safety and the environment relative to the disposal of radioactive byproduct wastes: RCRA landfills or

NRC-regulated and licensed disposal facilities?

(6) In a letter dated March 26, 1999, NRC’s Office of Nuclear Material Safety and

Safeguards concluded that a waiver under the Comprehensive Environmental Response, Cleanup, and Liability Act of 1980 (CERCLA) does not apply to off-site

FUSRAP disposal activities. What steps has the Commission taken to regulate offsite handling and disposal of Section 11(e)(2) byproduct material?

(7) Does NRC require additional Congressional direction or authority to regulate

pre-1978 Section 11(e)(2) byproduct material?

Please provide responses to these questions no later than Thursday, July 22,

1999.

Should you have any questions regarding this request, please contact me or have

your staff contact Mr. Rick Kessler at (202) 226-3400. Thank you in advance for

your prompt attention to this matter.

Sincerely,

JOHN D. DINGELL

Ranking Member

cc: The Honorable Tom Bliley

The Honorable Joe Barton

The Honorable Ralph M. Hall

Mr. BARTON. Have we—have the majority staff seen this letter?

Mr. HALL. I don’t.

Mr. BARTON. Have you seen it? Okay.

Do you want to tell the people what is in the letter, or do you

just want to put it in the record?

Mr. HALL. Well, I thought if I put it in the record, I would have

more time to read it.

Mr. BARTON. Oh, okay. All right.

Mr. HALL. Whatever. Mr. Adelman—I was just giving you a short

answer, no, I will tell them if you want me to.

Mr. BARTON. No, you—go ahead.

Mr. HALL. Mr. Adelman, NRC has determined that FUSRAP

waste might be sent to some disposal sites regulated under the

RCRA rather than the disposal sites regulated by the NRC. You

are aware of that, are not you?

Mr. ADELMAN. Yes, sir.

51

Mr. HALL. And I think that raises some questions, and I would

be interested in what your views are on it. Do you think this action

improves the protection of public health and the environment or

what effect would this action have on it?

Mr. ADELMAN. The proposed—or the ongoing action represents

an arbitrary distinction between the same types of materials—a

material that is currently being disposed of in licensed facilities is

the same that they are proposing to dispose of at the RCRA facilities. So, it is arbitrary in that sense, and because RCRA facilities

do not have the same sorts of regulatory requirements, the licensed

facility represents an incremental erosion of the standards that

apply to these materials.

Another important point is that RCRA facilities are designated

to dispose of hazardous constituents. And radioactive—radiological

contaminants would raise fundamentally different issues. And sites

containing hazardous materials have different monitoring and containment requirements. Their—the health and safety regulations

applying to hazardous waste facilities do not necessarily include

the risk associated with radiological contaminants. And then the

groundwater concerns that both the EPA and I have raised are also

significant considerations as well.

Mr. HALL. I’m going to wait and have to read that again. I see

it in the record.

You are aware of the fact that you have two distinct disposal

standards. What are the differences in the radioactive constituents

of pre- and post-1978 Section 11(e), subsection 2, byproduct material that warrants having this many—having two—having more

than one?

Mr. ADELMAN. The only distinction is the date on which the material was generated.

Mr. HALL. Now, say that again?

Mr. ADELMAN. Unless the byproduct material is going to change

from site to site, so there is not a—necessarily a consistency between material that was generated pre-1978 when the UMTRCA

legislation was passed versus post-1978. So there is not a rational

basis to distinguish between the two types of material.

Mr. HALL. And your answer could have been none?

Mr. ADELMAN. That is right.

Mr. HALL. Instead of the long answer you gave me?

Mr. ADELMAN. That is correct.

Mr. HALL. Then why have two disposal standards?

Mr. ADELMAN. I do not. There is no reason to have two——

Mr. HALL. There is no reason for them?

Mr. ADELMAN. Disposal standards.

Mr. HALL. What controls or protections exist at the RCRA landfills that ensures the protection of public health, safety, and environment from radioactive byproduct materials disposed at such facilities? What protects the public there?

Mr. ADELMAN. Well, there are protective measures to contain

hazardous waste constituents, but there are no specific standards

dedicated or targeted at radiological contaminants. And because, in

particular, radiological contaminants are long-lived, there is serious

concerns about the ability of these facilities to contain those.

52

Mr. HALL. And your answer there would be, if we shortened it

down, would be almost none, right?

Mr. ADELMAN. Right.

Mr. HALL. I think I have asked all the questions I want. Thank

you, Mr. Chairman. I yield back my time.

Mr. BARTON. Thank you, Mr. Hall. The Chair recognizes Mr.

Burr for 5 minutes.

Mr. BURR. I thank the chairman. Could I request that Mr. Hall

answer my questions for me?

I might understand them better as well.

Mr. BARTON. Get a lot of questions answered, wouldn’t we?

Mr. HALL. Mr. Adelman may be testifying by the word up here.

He may be being paid by the word. I do not know.

Mr. BURR. Clearly, the same accusations could be made about

us?

Mr. HALL. Yes, right.

Mr. BURR. Let me ask you, Mr. Beedle, I think you understand—

we have talked about this 10 percent of users fees that go obviously

to things that we do not think they are in the spirit of how that

user fee should be used. But when we look at the solution, which

would be a change, of possible general revenue appropriations or

some change from where we are today. I think you understand how

difficult that is going to be to get to. But clearly, it is a change in

the right direction, we would probably agree.

Do you have any suggestions as to how we get there?

Mr. BEEDLE. Well, we have had this as an issue for a number

of years. You may recall that when the Omnibus Reconciliation

process was started that the objective was to try and balance the

budget, and this was one of those efforts. And we probably would

agree that, from a national priorities point of view, that was a wise

decision on the part of the Congress.

But now that we are at the point where we do have a balanced

budget, we are suggesting that the Congress go back and rethink

the wisdom of continuing that process because you do have a situation where each one of our licensees pays something in excess of

$400,000 a year for regulation by the NRC for activities that have

absolutely no benefit to the rate payers. So our rate payers are actually paying these fees for the NRC.

The solution? I think somehow you need to recognize that this

is a significant inequity in the way the NRC is funded, and we

need to approach it. And if we continue to forestall it, you will be

having the same discussion today next year.

Mr. BURR. Could we all be comfortable with a phase in in the

change?

Mr. BEEDLE. I would say that is certainly better than not addressing it all.

Mr. BURR. And that may, in fact, be what we end up with.

Mr. BEEDLE. Yes.

Mr. BURR. But I think it is important that we at least throw that

branch out there and say there is another way. It is a change that

is headed in the right direction, and hopefully a permanent livewithin-the-spirit of how it was designed, but we may gradually get

there, which I think is recognized.

Let me ask you——

53

Mr. BEEDLE. I think the phased approach would be—would make

a great deal of sense. I mean, it is—I can imagine the difficulty of

trying to find $50 million somewhere through general revenues to

do that.

Mr. BURR. You heard the exchange earlier between the NRC and

EPA. Do they agree or disagree on the issue?

Mr. BEEDLE. Oh, I think they are in violent disagreement. There

is philosophically a disagreement within NRC.

Mr. BURR. Is it a question of science, or is it a question of jurisdiction and the policy differences between the two agencies?

Mr. BEEDLE. I think it is a policy issue on the part of EPA.

Mr. BURR. So you do not know of any science that the NRC has

neglected?

Mr. BEEDLE. No. We would agree with the NRC in their assessment of what constitutes a reasonable and achievable cleanup

standard.

Mr. BURR. Are there real-world situations where utilities have

been confronted with the EPA at the eleventh hour, walking in and

saying, no, we are in charge of this?

Mr. BEEDLE. No, I think we are in a situation where we are extremely vulnerable. We can find a facility that is cleaned up to the

NRC standards, and then the next day we have the very real potential for the EPA to come in and declare it a Superfund site, and

have to spend additional funds to cleanup to an NRC—EPA standard.

Mr. BURR. In your estimation, has there been sufficient publicprivate participation in how we got to that policy?

Mr. BEEDLE. I think there was in the case of the NRC. I mean,

there were well over 7,000 respondents to the NRC’s public notice

of the—of their standard. And, as Commissioner McGaffigan indicated, they have some fairly well educated, well trained people

working on that standard. And we find that it makes sense.

Mr. BURR. Do you know any industry individuals that were

brought in by the EPA to develop their standard?

Mr. BEEDLE. None. I do not know that there were any. Do not

know—do not really have any first-hand knowledge of that.

Mr. BURR. Let me ask you, Mr. Adelman—and I will ask you to

comment on the same thing—but I found it in the end of your testimony, or close to the end. Yes, it was the end. You said by its very

nature Superfund is structured to address major environmental releases. Accordingly, there is no danger that it could be used to

override NRC license termination regulations.

If that is true, what are you worried about?

Mr. ADELMAN. Well, I think what we are worried about are circumstances where there is specific types of releases that impact

standards that have been set, for example, under the Safe Drinking

Water Act.

Mr. BURR. Do you perceive that this is a difference between two

agencies relative to their interpretation of science?

Mr. ADELMAN. I think there are really two issues. I think that

there is a definitely a policy element to this. If you look at how hazardous materials have been regulated, and the standards that have

been set for them, and compare that to radiological standards, you

54

find that the standards are more stringent for hazardous constituents.

Mr. BURR. You think we need an NRC?

Mr. ADELMAN. Certainly. I think we need an NRC, but I think

we also need an EPA, because it is going to address more specifically environmental concerns.

Mr. BURR. Could the EPA do the NRC’s job?

Mr. ADELMAN. I do not think that it’s overall jurisdiction

encompasses——

Mr. BURR. No, but if we said, we want the EPA to be the regulatory body for nuclear waste, could they do it?

Mr. ADELMAN. I mean, if they develop all of the personnel and

additional technical experts to cover it.

Mr. BURR. So the technical expertise and the personnel do not

exist today at the EPA for them to pursue a policy that is an overlap to what the NRC is producing.

Mr. ADELMAN. No, I would completely disagree with that.

Mr. BURR. Well, that is what you said, though. You—I asked

you——

Mr. ADELMAN. Well, there——

Mr. BURR. I asked you could the EPA fill in for the NRC. And

you said if you have the personnel, if you have the technology, if

the expertise existed at the EPA, they could do it.

Mr. ADELMAN. If the issue were just environmental releases and

evaluating the potential human health and environmental impacts

associated with them, clearly EPA could do that job. But NRC’s jurisdiction is much broader than that—it is, you know, regulation of

specific facilities that EPA currently is not engaged in.

Mr. BARTON. The Chair is really intrigued by this philosophical

discussion, but the gentleman’s time has expired. I would encourage the two to talk in the hall.

Mr. BURR. The Chair has been very generous in his time, and I

appreciate that.

Mr. BARTON. Yes. Before we recognize Mr. Sawyer, we have got

another former member of the committee, Mr. Eckart. This must

be a pretty high dollar committee hearing. I have never seen two

former Congressman standing at the back of the room in any hearing we have done yet this year. So——

Mr. ECKART. We just want to be closest to the door.

Mr. BARTON. Yes, we are duly impressed. I just assumed you all

on the same side of whatever issue it is. You are not on the same

side?

Mr. ECKART. Well, we will stand closer together so the targeting

is easier.

Mr. HALL. Mr. Chairman?

Mr. BARTON. Yes, sir.

Mr. HALL. You have to really check on Mr. Eckart when he reports something to you. I was told one time that he was about to

get defeated in his race, and I caught a quick plane up to Cleveland to help him.

Mr. BARTON. Did you campaign for or against him, which was it?

Mr. HALL. And I missed a meeting with him—with him and for

him. And he only got 78 percent of the votes.

Mr. BARTON. Well, he probably was at 49 before you arrived.

55

Mr. HALL. And he did not even reimburse me for my plane ticket.

Mr. BARTON. He will make amends for that. Mr. Sawyer of Ohio

is recognized for 5 minutes.

Ms. SAWYER. It is an art form in northeast Ohio, Mr. Chairman.

I—first of all, let me say that I am really impressed at how you

moved this hearing along. I—when I left, there was a whole different panel here, and I thought we were still going on with questions.

Mr. BARTON. But everybody left. That was the problem.

Mr. SAWYER. Everybody left, and then they didn’t come back,

huh?

Mr. BARTON. No.

Mr. SAWYER. And now, did we do opening statements here?

Well, I am very impressed. You guys are good. I apologize for not

being here to hear that. When we left, I was asking about——

Mr. BARTON. The gentleman’s time is about to expire.

Mr. SAWYER. I was asking about the foreign ownership question,

and we talked a little bit about security and economic motivations,

but let me just ask about safety questions and exposure to liability.

The question when you have got foreign ownership and the ability

to access assets in the event of a substantial safety emergency is

something to be considered on its face. But when you get into the

question of the Price-Andersen caps on liability, at $100 million;

when you begin to go past that in the event of a substantial problem, it seems to me that you run the risk of a domestic affiliate

and a foreign parent moving assets from where they might be accessible in the United States to where they might not be accessible

elsewhere. Do either of you have a comment on that from the point

of view of foreign licensure, or is—or are my concerns misplaced?

Mr. BEEDLE. Well, I think if you go back to the testimony of the

NRC, the Commissioner—Commissioner Merrifield pointed out

that our fuel processing facilities are foreign-owned, for the most

part. I—as a chief nuclear officer, I bought fuel from a foreign manufacturer, components from foreign companies, and I think the foreign ownership question is one that does not make a lot of sense

when you compare those things that are owned or controlled by

some foreign entity and then a restriction on a power plant operation. It is a commercial operation, and the risk that you may have

some difficulty in terms of liability I think is one that is addressed

through the licensing process. The NRC provides guarantees that

you have adequate funds for decommissioning. The insurance programs that the nuclear utilities participate in are robust and would

provide that cover. And I think that the trend that we see today

is that foreign ownership would be a partial ownership. You would

not have a sole—solely foreign entity owning the facility as you

have in case of the ownership of TMI, for example.

So we are—we are confident that this makes sense from a business point of view. An economic point of view is the way the rest

of the country operates and the business world.

Mr. SAWYER. Mr. Adelman?

Mr. ADELMAN. I actually do not have a comment on that.

Mr. SAWYER. Thank you, Mr. Chairman.

Mr BARTON. Is that all your questions?

Mr. SAWYER. I thought I was on the thin ice to begin with?

56

Mr. BARTON. No, no. Mr. Shimkus, then, would be recognized for

5 minutes.

Mr. SHIMKUS. Thank you.

Mr. BARTON. Before we do that, the Chair would ask unanimous

consent that all members that are not present when this hearing

concludes, if they have questions that they be allowed to submit

them in writing to both panels so that we get a complete record before we go to mark up of the reauthorization bill. Is there objection?

Hearing no objection, so ordered.

Mr. Shimkus, you are recognized for 5 minutes.

Mr. SHIMKUS. Thank you, Mr. Chairman. Mr. Beedle, did you tell

me prior to the meeting that you are a 1962 grad of the Naval

Academy?

Mr. BEEDLE. That’s correct, sir.

Mr. SHIMKUS. So the answers, we needed to make sure we review

those, Chairman, for sufficiency and completeness.

Mr. BARTON. Now, you are a graduate of West Point, I think?

Mr. SHIMKUS. That is right. That is why I am suspicious of the

testimony.

Mr. HALL. You could not get in the Naval Academy?

Mr. SHIMKUS. I can see that is why. The—let me—I do have a

question on—can you tell me, Mr. Beedle, on the Agreement States

Program can you kind of explain what that is?

Mr. BEEDLE. Well, much of the money that the NRC allocates to

the Agreement States is to support them in their regulatory activity through training—a considerable amount of money goes into

that. I would guess that that is probably the bulk of it. But they

have that obligation to train those——

Mr. SHIMKUS. Do you know of any—and you were here in the

other—the hearing, and I asked the question in reference to international-type of agreements. Are you familiar with any of those?

Mr. BEEDLE. Very few of them. The NRC provides a lot of consultation to foreign regulatory bodies. There is a International Regulators Association that undoubtedly consumes some funding. I

think that is probably the two big components of that cost.

Mr. SHIMKUS. Mr. Adelman, I have a question. The Natural Resource Defense Council, what is their agreed upon millirem standard for safety?

Mr. ADELMAN. I am not sure we have an explicit position on that,

but it would be, you know, in the 10 to 15 millirem area.

Mr. SHIMKUS. And do you have science to back up that standard?

Mr. ADELMAN. We certainly reviewed—we do not do independent

analysis ourselves, but we certainly reviewed EPA data.

Mr. SHIMKUS. So your standards are based upon the same EPA

that does not have enough professionals to do the requirements in

search of the NRC with the billions of Ph.D.s that they have there?

Mr. ADELMAN. We think that the EPA personnel are well qualified to address these issues.

Mr. SHIMKUS. Are you saying that the NRC’s standards of 25

millirem is unsafe?

Mr. ADELMAN. I think that we have concerns about that, but the

license termination rule does not just address a 25 millirem standard. It also establishes a 100, and even in some cases 500 millirem

57

standard, so, you know, it is the license termination rule as a

whole that we have concerns about; that I think raises the issues

that EPA has raised in front of you.

Mr. SHIMKUS. Mr. Beedle, what is your comments in reference to

the millirem standards and the NRC’s technical expertise?

Mr. BEEDLE. Well, we are satisfied that the NRC has gone about

the very deliberate process of reviewing that cleanup standard.

They have collected scientific consensus on the standard, and, as

I indicated earlier, some 7,000 respondents to the proposed rule on

that. So I am satisfied that the technical expertise that has been

brought to bear to provide an adequate standard for protection of

the public. And the concern that the industry has is that we end

up in a dual regulatory situation where I need to worry about

cleanup, an NRC standard, and then a follow-up standard published by an agency that has gone about it in a process that is less

than open, from our point of view.

Mr. SHIMKUS. Let me ask a final question. Do either of you know

of another country that has a higher standard than the 25 millirem

standard?

Mr. BEEDLE. I do not know of any.

Mr. ADELMAN. Off the top of my head, I do not know of any.

Mr. SHIMKUS. Thank you. Mr. Chairman, I yield back my time.

Mr. BARTON. The—I am going to submit my questions for the

record in the interest of time. And since Mr. Hall said he would

submit his questions to the first panel in writing, I think that balances it.

Before we adjourn, though, since we know that Mr. Beedle went

to the Naval Academy, it would be unfair if we did not ask Mr.

Adelman where you graduated from. Where is your academic training?

Mr. ADELMAN. At Stanford and Reed College.

Mr. BARTON. Stanford and Reed College. Okay.

Gentleman, I want to thank for your presence, and this hearing

is adjourned.

Mr. BEEDLE. Could I add, beat Army, sir?

Mr. BARTON. Beg your pardon?

Mr. BEEDLE. Beat Army.

Mr. BARTON. Oh, beat Army. I am not going to get into that.

[Whereupon, at 4:31 p.m., the subcommittee was adjourned.]

[Additional material submitted for the record follows:]

NUCLEAR REGULATORY COMMISSION

September 10, 1999

The Honorable JOE BARTON, Chairman

Subcommittee on Energy and Power

Committee on Commerce

United States House of Representatives

Washington, D.C. 20515

DEAR MR. CHAIRMAN: Thank you for the opportunity to appear before your Subcommittee on July 21, 1999, to discuss the important issues regarding authorization

of the Nuclear Regulatory Commission. We appreciate the opportunity to provide

input on H.R. 2531.

I am enclosing the NRC responses to post-hearing questions. Please contact me

if I can be of further assistance.

Sincerely,

GRETA JOY DICUS

Enclosure: As Stated

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cc: Representative Ralph M. Hall

Question 1. A recent NRC press release states that the ‘‘security program will be incorporated into the NRC’s baseline inspection program when it is fully implemented early next year.’’ My understanding was that the program is suspended as

part of the baseline inspections until a new rule-making is completed. (A) Is that correct?

Answer. No, a security inspection program similar to the NRC’s long standing re- gional inspection program continues to be an integral part of the baseline inspection

program. The ongoing OSRE inspections will continue to require licensees to demonstrate the response capability of their security organizations, including force-on-force exercises, as planned. At present, the last OSRE is scheduled for May 2000. The staff,

with stakeholder involvement, is exploring options to continue the evaluation of licensee demonstration of contingency response capabilities during the period between

completion of the OSREs and issuance of the final rule, whenever that occurs, and

plans to forward its recommendation on these options to the Commission in September 1999. This transition plan will ensure force-on-force exercises continue following May 2000 though the completion of the rulemaking. In a letter dated August 31, 1999, the Nuclear Energy Institute (NEI) commented on the new rulemaking you mentioned. In its letter, NEI informed the Commission

that the industry is preparing a guidance document for a pilot program that could

be implemented in mid-2000 when acceptable to both the NRC staff and the industry. Key elements of the NEI pilot program guidance include identifying target sets

based on a goal of preventing a radiological release that exceeded 10 CFR Part 100

criteria, force-on-force drills and exercises, tools for evaluating the effectiveness of

drills and exercises, and a process for correcting deficiencies. The Commission intends to consider the viability of the industry proposal within the framework of the

staff’s September 1999 recommendation to the Commission.

Question 1. A recent NRC press release states that the ‘‘security program will be incorporated into the NRC’s baseline inspection program when it is fully implemented early next year.’’ My understanding was that the program is suspended as

part of the baseline inspections until a new rule-making is completed. (B) When do you expect the rule to be finished?

Answer. The NRC staff has proposed—and the Commission has approved—an ag- gressive rulemaking schedule to amend Part 73 to require periodic contingency be

an integral part of the baseline inspection program. The rulemaking is currently expected to follow this schedule:

September 17, 1999—rulemaking plan to Commission

March 31, 2000—proposed rulemaking to Commission

May 2000—60 day public comment period

December 1, 2000—final rulemaking to Commission

May 1, 2001—final rule published However, at a public meeting on August 11, 1999, there was significant stake- holder comment on the need for a more comprehensive Part 73 rulemaking. If the

Commission agrees to broaden the rulemaking, this aggressive schedule could be delayed. Furthermore, as mentioned in the response to the previous question, the industry has proposed a goal of developing, over a two-year period, a broader rule

change and supporting industry implementing guidance.

Question 1. A recent NRC press release states that the ‘‘security program will be incorporated into the NRC’s baseline inspection program when it is fully implemented early next year.’’ My understanding was that the program is suspended as

part of the baseline inspections until a new rule-making is completed. (C) How long does rulemaking usually take?

Answer. In recent years, many rulemakings have taken approximately 24 months from approval of a rulemaking plan by the Commission. However, many high priority rules have been adopted on a faster schedule. Our August 27, 1999 letter to

Congressman Markey and the response to 1(B) discuss this proposed rulemaking

schedule.

Question 2. (A) Will you commit to including force-on-force drills in the baseline inspections when they start, whether or not the rule-making is finished? Answer. Specific commitments at this time would be premature since the Commission has not reviewed the staff’s proposal. The staff will provide options for Commission review in September 1999. NRC inspection of license-conducted force-onforce exercises is currently under discussion between NRC and its stakeholders, including the recent industry proposal to prepare a guidance document for a pilot program that includes force-on-force drills which, if found acceptable to the NRC and

the industry, could be implemented in mid-2000. Whether force-on-force drills are

59

required under the auspices of the baseline inspection program or as a continuation

of the current approach to OSRE is among the options being evaluated by the staff

at this time.

Question 2. (B) Will you commit to ensuring there is not a gap between the end

of the OSRE drills next spring and the inclusion of drills in the baseline inspection

either by continuing the OSRE program or beginning the baseline inspection drills?

Answer. Specific commitments at this time would be premature since the Commission has not reviewed the staff’s proposal. The staff is providing options for Commission review by September 1999 as discussed in our responses to 1 (A) and 2 (A).

Question 2. (C). Does the NRC need new legislation in order to enable you to require licensees to conduct these drills right now?

Answer. No, the NRC does not need new legislation in this area. Under the Atomic Energy Act of 1954, as amended (AEA), NRC has ample authority to regulate the

operation of nuclear power reactors to promote common defense and security and

to protect health or minimize danger to life or property. NRC exercises this authority by issuing licenses, conditions to licenses, and rules/regulations and orders. If it

becomes necessary to provide NRC with reasonable assurance of adequate protection

of public health and safety or common defense and security, there is no dispute that

NRC has the authority under the AEA to require licensees to conduct safeguards

performance exercises. However, in order to impose an enforceable requirement to

conduct these exercises, NRC must issue an order, license condition, or regulation.

The NRC currently believes that the proper method of implementing that authority

is through the use of regulations similar to the method used by the Office of Nuclear

Materials Safety and Safeguards for requiring the conduct of exercises at fuel facilities (10 CFR 73.46).

Question 3. Currently the OSRE exercises are conducted under the supervision of

the NRC, with NRC contractors who are security experts advising the mock adversary force on targets and methods of attack. The modified program would be run

by the licensees.

(A) Will the licensees determine how future drills are run, and will plant security

forces know what targets will be attacked?

Answer. Contrary to the implications of the question, OSRE exercises are not supervised or participated in by NRC staff or contractors. The drills and scenarios are

established and conducted by the licensees. The NRC and contractors do observe

and evaluate the exercises. The NRC comments on the appropriateness of the test

and compares NRC’s independent target selection against that of the licensee’s to

determine the adequacy of the exercise. As part of the rulemaking effort, NRC guidance on the implementation of exercises would be published and provide acceptable

ways to conduct exercises. This guidance will state that drill participants will not

have knowledge of the specific targets to be used in the drill.

Question 3. Currently the OSRE exercises are conducted under the supervision of

the NRC, with NRC contractors who are security experts advising the mock adversary force on targets and methods of attack. The modified program would be run

by the licensees.

(B) If so, is that a realistic simulation of a terrorist attack?

Answer. Yes, in the modified program, the licensees conduct the drills; therefore,

the degree of realism is limited to the licensee’s ability to simulate a terrorist attack. As we explained in our response to the previous question, this is how the

OSRE program is currently conducted. The need for support by the contractors during the transition period following completion of the OSREs and under the new rule,

once completed, will be evaluated at a later date.

Question 4. The press release also says the ‘‘NRC will likely continue to use private contractors to assist in its evaluation of the performance of its licensees during

drills and exercises’’ (emphasis added)

(A) Do the current NRC contractors for the OSRE program have security expertise

that headquarters staff and regional inspectors do not have?

Answer. Yes, the NRC contractors for the OSRE program have extensive security

expertise that headquarters staff and regional inspectors do not have.

Question 4. The press release also says the ‘‘NRC will likely continue to use private contractors to assist in its evaluation of the performance of its licensees during

drills and exercises’’ (emphasis added)

(B) Do you intend to continue to use the current contractors or other contractors

with equivalent security expertise?

Answer. The staff intends to continue using the current contractor during

FY2000. The need for support by the contractors during the transition period following completion of the OSREs and under the new rule, once completed, will be

evaluated at a later date.

60

Question 4. The press release also says the ‘‘NRC will likely continue to use pri- vate contractors to assist in its evaluation of the performance of its licensees during

drills and exercises’’ (emphasis added) (C) Will the contractors continue to advise the mock adversaries on how to attack

the plants?

Answer. The NRC, through the use of staff and contractors, will continue in its approach of critiquing exercise plans and independent target development to compare licensee targets as part of the process. This also enables the licensee to conduct

a more realistic exercise.

Question 5. I understand there has been some controversy over what should be the standard for success in the drills. Licensees are required to protect against ‘‘radiological sabotage.’’ (A) Do you think the drills should test the licensees’ ability to protect against core damage or only against major radioactive release to the atmosphere? Answer. Title 10, Code of Federal Regulations (CFR), Section 73.55(a) requires

that licensees be able to ‘‘protect against the design basis threat of radiological sabotage.’’ Radiological sabotage is defined in Section 73.2 as, ‘‘any deliberate act directed against a plant or transport... which could directly or indirectly endanger the public health and safety by exposure to radiation.’’ Therefore, the licensees are required to protect against acts that could endanger the public health and safety. Part 73 does not define the limits of exposure that are considered dangerous for the public health and safety, although limits of exposure are discussed in various

other sections of Title 10 of the CFR. The staff is currently considering how to clarify expectations in Part 73 and better define the term ‘‘radiological sabotage,’’ calling

on standards also used in other areas of nuclear regulation, including Part 100. The

systems and equipment necessary to prevent a radiological release, and therefore

subject to protection by security measures, could be dependent on the release definition. During the remaining OSREs, the teams will review this issue as part of their

input to the NRC’s Safeguards Performance Assessment Task Force.

Question 5. I understand there has been some controversy over what should be the standard for success in the drills. Licensees are required to protect against ‘‘radiological sabotage.’’ (B) In evaluating the drills, do you think it fair to assume that plant operators would act perfectly to prevent radioactive release, or should their performance be

tested in the drills?

Answer. NRC would expect operators to respond in accordance with training they have received in dealing with off-normal plant conditions. Operator actions need to

be evaluated in as realistic a manner as practicable to simulate actual conditions.

Operators are already routinely examined with respect to their response to off-normal plant conditions, regardless of the source of the condition. An important element of the proposed rulemaking and related guidance will be how to credit operator actions during an attempt at radiological sabotage. The remaining OSREs will

examine the integration of the overall actions by operations and security organizations in preventing radiological sabotage.

Question 6. I would like to thank you for your recent letter responding to my letter on the Sunshine Act rules. In the letter you suggest that the Commission is ‘‘legally prohibited’’ from including under the Sunshine Act rules gatherings that do

not meet the Supreme Court’s narrow definition of a ‘‘meeting.’’

(A) Do you think the NRC’s old rules are illegal and have been for the last 15

years since the Court’s ruling?

Answer. The Commission has never asserted that its former Sunshine Act rules

were ‘‘illegal.’’ Rather, it said that they did not follow sufficiently closely the intent

of Congress, as explicated by the Supreme Court in ITT World Communications v.

FCC, 466 U.S. 463 (1984). As the American Bar Association pointed out in its report

on the Sunshine Act, Congress can be presumed to have had a reason for amending

the proposed Act to give federal agencies latitude to conduct many types of discussions outside the context of Sunshine Act ‘‘meetings.’’ That reason was that Congress saw a positive value in such discussions and expected that federal agencies

would hold them.

In its letter to you of July 19, 1999, the Commission observed in a footnote that

one decision of the United States Court of Appeals for the District of Columbia Circuit held that a federal agency acted beyond the scope of its authority when it promulgated a broader definition of ‘‘meetings’’ in its regulations than was contained

in the Sunshine Act. WATCH v. FCC, 665 F.2d 1264 (D.C. Cir. 1981). One can only

speculate as to whether a similar challenge to the NRC’s original Sunshine Act regulations would have yielded a similar result.

Question 6. (B) Is there anything in the Sunshine Act or in other laws that actually prevents Commission gatherings from being open to the public?

61

Answer. There may be a number of areas where the Commission could be legally constrained from holding a discussion in public, e.g., national security information or information subject to the Privacy Act. Question 6. (C) Is the Commission legally allowed to keep transcripts or record- ings of all gatherings of a majority of the Commission? Answer. We know of no barrier to the Commission’s keeping transcripts or record- ings of any discussions among any number of Commissioners.

Question 7. The revised rule is intended to foster general discussions by the Com- mission that do not now take place by allowing them to be secret. (A) Why can’t the Commission hold such discussions in public?

Answer. There is no legal barrier per se to such discussions. That does not mean,

however, that the statute lacks an inhibiting effect. The Commission can only repeat

the words of a unanimous Supreme Court in the ITT case: Congress in drafting the Act’s definition of ‘‘meeting’’ recognized that the administrative process cannot be conducted entirely in the public eye. ‘‘[I]nformal

background discussions [that] clarify issues and expose varying views’’ are a

necessary part of an agency’s work. [Citation omitted.] The Act’s procedural requirements effectively would prevent such discussions and thereby impair normal agency operations without achieving significant public benefit. Section

552b(a)(2) therefore limits the Act’s application... 466 U.S. 463, 469-70.

Question 7. (B) Is there anything in the old rules that would prevent this? Answer. Nothing in the NRC’s former Sunshine Act rules would prevent it from holding any discussions it wished to in public, as long as the discussions do not involve information that the Commission is legally constrained from discussing in

public. Question 8. (A) Under the revised rule, could the Commission meet to discuss how

easing government regulations could assist the nuclear power industry, and do so

without public notice or public participation and without any transcript, tape, or

minutes of the meeting? Answer. The hypothetical topic proposed in the question likely would, under the Commission’s revised rules, fall into the category of discussions ‘‘sufficiently focused

on discrete proposals as to cause or be likely to cause the individual participating

members to form reasonably firm positions regarding matters pending or likely to

arise before the agency,’’ and thus fall into the category of topics that can be discussed only in ‘‘meetings’’ if three or more Commissioners are present. Question 8. (B) Could the rules be revised in six months so that no record would

be kept that such a meeting took place? Answer. The question is moot; see (a).

Question 8. (C) If discussion of specific proposals for changing NRC regulations took place at such a meeting, or if the Commission made secret decisions at such

a meeting, how would the public find out?

Answer. Again, the question is moot; see (a).

Question 9. Do you think that secret Commission discussions will ‘‘enhance public

confidence’’ in the NRC’s work? If so, how?

Answer. In its July 1999 Federal Register notice, the Commission addressed this

point. It acknowledged the possibility that the NRC’s action would diminish public

confidence in the Commission, but stated that it believed ‘‘that the legal and policy

reasons for its action—compliance with the Supreme Court’s guidance, and the expected benefits in collegiality and efficiency, make this a desirable course of action,

even if—despite the Commission’s best efforts to explain its reasoning—some persons misunderstand or disapprove of the Commission’s action.’’ The Commission

added: ‘‘It is also possible that the potential enhancement of collegiality and the potential improvement in Commission decision-making that may result from non-Sunshine Act discussions will ultimately increase the public’s confidence in the Commission’s actions.’’

Question 10. I understand that the NRC has recently conducted Fire Protection

Functional Inspections at several plants. Could you please summarize results of

these inspections and identify the frequency of significant weaknesses found?

Answer. The NRC performed three full-scope fire protection functional inspections

(FPFI); one at River Bend Station, one at Susquehanna, and one at St Lucie. In addition, one reduced-scope FPFI, using inspection techniques developed for the fullscope inspections, was conducted on a licensee’s fire protection program self-assessment at Prairie Island. At each inspection the staff found deficiencies in the licensee’s program implementation which could result in weakening fire protection defense in depth. However, the NRC also found that licensee self-assessments using

the fire protection inspection and assessment guidance established by the FPFI program were capable of identifying programmatic strengths and weaknesses.

62

Examples of the deficiencies found in the inspections include such things as control of transient combustibles, weak fire brigade performance, compliance with design codes and standards for fire protection systems, and weaknesses in post-fire

safe shutdown analysis and implementation. In each case, compensatory measures

such as interim post-fire safe shutdown contingency plans or fire watches were put

in place to mitigate the possible reduction in defense in depth while corrective actions were being implemented. These fire protection compensatory measures are to

be maintained in effect until the inspection findings are resolved and/or final corrective actions are taken by the licensee organization.

After the pilot FPFIs, the NRC staff conducted a public workshop with the reactor

licensees to discuss the results of the FPFIs and the lessons learned from the FPFI

program. One of the results of the FPFI program was renewed industry attention

to nuclear power plant fire safety. As examples, the Nuclear Energy Institute is developing performance indicators for reactor fire protection and new procedures that

will help the licensees conduct self-assessments of their fire protection programs. In

addition, some licensees, including those that were not subject to FPFIs, have made

voluntary changes to their fire protection programs and have conducted self-assessments in response to the lessons learned from the FPFI program. As a result of the

FPFI program, the NRC staff concluded that it should continue to monitor licensee

performance in this area and included reactor fire protection in the new reactor

oversight and inspection program. This new program includes new risk-informed

fire protection inspection procedures and a newly-developed tool for assessing the

risk and safety significance of fire protection deficiencies. The staff believes that the

expected increase in licensee self-assessments, coupled with the more frequent and

robust NRC fire protection inspections that it will conduct under the new reactor

oversight and inspection program, will ensure an adequate level of fire protection

at all nuclear power plants.

Additional/Background Information.

Fire protection program implementation findings are documented in the following

inspection reports:

• River Bend FPFI—NRC Inspection Report Number 50-458/97-201 dated March

20, 1998.

• Susquehanna FPFI—NRC Inspection Report Numbers 50-387/97-201 and 50-388/

97- 201 dated May 13, 1998.

• St. Lucie FPFI—NRC Inspection Report Numbers 50-355/98-201 and 50-389/98-

201 dated July 9,1998.

• Prairie Island FPFI—NRC Inspection Report Numbers 50-282/98-016 and 50-306/

98-016 dated October 9, 1998.

Question 11. I understand that plants have recently done assessments of the risk

of fire-induced core damage.

(A) What is the range of core damage frequency estimated at the different plants?

Answer. The values reported by licensees for fire induced core damage frequency

(CDF) range from 2x10–7 to 4x10–4 per reactor year.

Background/Additional Information.

Quad Cities initially reported a fire induced CDF of 5x10–3 per reactor year in

their original submittal dated February 17, 1997. The reported value in its revised

submittal dated May 27, 1999, is 6x10–5 per reactor year. The revised submittal is

currently under review by the staff.

Question 11. I understand that plants have recently done assessments of the risk

of fire-induced core damage.

(B) Is most of the range due to plant differences or to differences in risk assessment methods and assumptions?

Answer. The vintage and layout of a given plant contribute to the differences to

a certain extent; however, some of the variability can be attributed to differences

in methods and assumptions employed in the analysis. The staff is currently working on identifying, analyzing and reducing sources of variability in fire risk assessments.

Background/Additional Information.

Although different methods and assumptions can result in significant variability

in the fire induced core damage frequency (CDF) estimates, the relative ranking of

fire scenarios and dominant fire areas at a plant are based on relative values of

CDF and not the absolute values. The major objective of the Individual Plant Examination of External Events (IPEEE) program was not to develop accurate CDF estimates. Rather, the major objectives were for licensees to: (1) Develop an appreciation of severe accident behavior, (2) Understand the most likely severe accident seVerDate 27-JAN-2000 14:51 Feb 01, 2000 Jkt 010199 PO 00000 Frm 00065 Fmt 6633 Sfmt 6621 E:\HEARINGS\58507 txed02 PsN: txed02
63

quences that could occur at the plant, (3) Gain a qualitative understanding of the

overall likelihood of core damage, and (4) Reduce, if necessary, the overall likelihood

of core damage by modifying, where appropriate, hardware and procedures that

would help prevent or mitigate severe accidents.

Question 12. Given the apparent lack of quality control, how can the NRC implement a risk-informed inspection program for fire protection next year when standards for fire risk assessments will not be available until some years later?

Answer. Currently available risk information (generic and plant-specific) and risk

assessment techniques (e.g., those used by the licensees to perform the fire analyses

of the individual plant examination of external events (IPEEE)) and risk assessments (e.g., the results of the plant-specific IPEEE fire analyses) are adequate to

support risk-informed reactor fire protection inspections to a limited extent. In the

future, as risk assessment methods improve and mature, and additional experience

is gained with their application, additional risk insights will be incorporated into

the NRC fire protection inspection program.

The NRC’s new reactor inspection and oversight program includes a baseline fire

protection inspection program that is based on long standing fire protection and

post-fire safe shutdown inspection techniques. These techniques include both deterministic and risk assessment techniques designed to ensure that licensees have adequately implemented their fire protection programs and that they provide a sufficient level of fire safety to maintain one train of safe shutdown capability free of

fire damage.

During the fire protection functional inspection program, the NRC used fire risk

insights from the plant IPEEEs to focus the inspections on those plant areas that

present the highest risk from a reactor safety perspective. This same basic approach

has been incorporated into the new baseline fire protection inspection program.

In addition, under the new reactor inspection and oversight program, the NRC

has developed an inspection finding significance determination process. This process, which includes both deterministic and risk assessment elements, will be used

by the NRC and the licensees to evaluate fire protection findings, assess their risk

impact, and estimate any potential change in risk they may have on the core damage frequency. Through the implementation of this method, NRC focus can be applied to important fire protection findings and their resolution.

Question 13. The NRC has strict rules regarding drug use and drug testing for

personnel at nuclear power plants but only vague guidelines regarding overtime and

consequent fatigue, which can cause similar symptoms. As a consequence, it is common for plant personnel to work several 70 hour weeks in succession.

Why does it not make sense to have strict, enforceable rules on working hours,

as there are for drugs (and as there are on working hours for airline pilots and

truck drivers)?

Answer. By letter dated May 18, 1999, the NRC responded to a previous inquiry

by you and Congressmen Dingell and Klink on this matter. In that response we indicated that we would be reassessing the Commission’s ‘‘Policy on Factors Causing

Fatigue of Operating Personnel at Nuclear Power Plants.’’ The reassessment process

is expected to provide a basis for making a determination concerning whether the

policy should be reaffirmed, revised, or alternative regulatory approaches, such as

rulemaking on working hours, should be pursued. The reassessment is scheduled to

be completed by the end of FY 2000. (See also the response to Question 14.)

Question 14. Given that the NRC is aware of more than one hundred cases of excess overtime without required approval (and has no records of overtime worked

with approval), and given that it is difficult to determine the effect of fatigue on

safety incidents, why does the NRC plan not to review licensee use of overtime?

Answer. During the development of the NRC’s revised reactor oversight process,

the NRC made the decision not to include monitoring of overtime use. This decision

was based on the lack of risk significant findings from past inspections and event

investigations related to working hours and is consistent with the NRC’s effort to

focus inspections on risk-significant issues. However, as part of the revised reactor

oversight process, if performance indicators and inspection findings indicate problems, licensees are expected to determine the root cause of those problems. If the

root cause is in the area of human performance, fatigue is one of the many possible

contributing factors. NRC inspections are conducted to assure that licensees are implementing effective corrective action. In addition, and as noted in response to Question 13, the NRC is initiating a reassessment of the policy to ensure that NRC regulatory actions are consistent with the risk-significance of this issue. The results of

this reassessment will be considered in making any determination concerning the

NRC’s inspection program as it relates to use of overtime and potential personnel

impairment from fatigue.

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Question 15. The Commission recently reversed a decision to provide funding for

state stockpiles of potassium iodide (KI), which had been intended to help protect

the public in the event of a nuclear accident. According to a June 15, 1999 letter

from Chairman Jackson to the Federal Emergency Management Administration

(FEMA), the reversal was in part based on a 1980 NRC policy.

(A) Is there any legal barrier to the Commission funding purchases of KI for

states that wish to establish stockpiles?

Answer. There is no per se legal barrier to the Commission funding the purchase

of KI for the states that wish to establish stockpiles. The Commission determined

as a policy matter that the NRC will not fund the purchase of KI for the states.

This decision is consistent with the Commission’s longstanding policy that funding

for state and local emergency response measures has been the responsibility of those

governments working with the licensees. The Commission believes that the overall

cost of KI is minimal when placed in the context of emergency planning.

As a separate matter, the Commission determined as a policy matter that the federal government should fund regional stockpiles of KI. The Commission stated that

well placed federal stockpiles, in addition to any state stockpiles, is a measure the

federal government should consider. Not every state will elect to have a stockpile

(see Answer 16(A)). Because states are not required to stockpile, the NRC believes

that regional stockpiles may be a prudent and reasonable approach to making KI

available to emergency response officials in the very unlikely event of a severe reactor accident. These regional stockpiles could be used to supplement local stockpiles,

or when a state without a stockpile decides to use KI on an ad hoc basis in a nuclear emergency. If Congressionally approved appropriations for NRC funding were

sufficient, NRC could consider assisting in the funding of purchasing KI for regional

stockpiles.

Question 15 (B). If there are policy barriers, has the NRC reexamined those policies?

Answer. The NRC and FEMA are currently reexamining earlier positions and

policies regarding KI. The goal is to identify the options available to the two agencies to make KI available to the states.

Question 16. The Commission, in its reversal, also referred to concerns about cost.

(A) How much money would it cost to fund the purchase of KI for all states?

Answer. In Commission paper SECY-98-264 dated November 10, 1998, the estimated cost of purchasing a supply of KI was between $117K, for two to three states,

and $3.25M for all states with nuclear power plants. These estimates do not include

refurnishing every seven years, as would be required due to its shelf life. The cost

for funding the purchase of KI depends on the current market price of KI tablets

and the number of states that would request state stockpiles. In November 1998,

the staff reported an increase in the price of KI tablets.

The Commission considered the cost to fund all state stockpiles, which, as indicated above, would be about $3.25M in a given year, with replacements necessary

every seven years, in the context of the overall budget. The NRC’s budget, adjusted

for inflation, is the lowest it has been in more than 20 years. The resources to fund

state stockpiles are not budgeted and would have to be reprogrammed from existing

agency programs. As you know, the House is recommending a $10M reduction in

the appropriation for FY2000 recommended by the President. See H.R. 2605, Title

IV. For these reasons, the Commission’s concerns about costs were considered in the

context of how best to spend limited NRC funds to produce the most comprehensive

and effective national KI program. (See Answer 15).

Question 16. (B) How much money has the NRC spent studying the KI issue since

1989?

Answer. The total amount of NRC spending on the KI issue exceeds $2.6M for

last 10 years (1989—1999), based on a conservative estimation in two components:

(1) Approximately 20 FTEs ($2M) of NRC staff was expended during the period of

10 years, with an additional $240K for Rulemaking and support work from October 1998 to August 11, 1999.

(2) $300K was used for a contractor’s fee for study and publication of NUREG/CR6310, on ‘‘An Analysis of Potassium Iodide (KI) Prophylaxis for the General

Public in the Event of a Nuclear Accident,’’ which was issued in 1995. The additional NRC staff support for the NUREG/CR-6310 was 1 FTE ($100K) for FY91-

96.

This question, in the context of the series of questions on this issue seems to suggest that the NRC could have better spent the resources it has used over the past

10 years researching and developing a KI policy on funding state KI stockpiles.

Funding for researching and developing a KI policy is a separate matter from funding state stockpiles.

65

Just as the NRC was required to do in the past, the NRC will need to dedicate

future resources to developing and finalizing changes to NRC regulations and making final changes to a national policy on KI. Specifically, funds will need to be expended to complete the NRC rulemaking requiring licensees to consider using KI

as part of their emergency planning, and to continue working with FEMA and other

agencies represented on the Federal Radiological Preparedness Coordinating Committee (FRPCC), to re-evaluate the Federal policy on KI. These resource expenditures are over and above the additional cost of funding state stockpiles.

Question 17. The Commission now supports regional KI stockpiles. However, the Director of the (FEMA) stated in a April 29, 1999 letter to the NRC that such stockpiles would ‘‘complicate, not strengthen radiological emergency preparedness.’’ The

Commission, in its dispute with the EPA over radiation release standards, emphasized its superior expertise. (A) How many emergency preparedness experts does the NRC have on staff, and how many does FEMA have on staff? Answer. NRC has about 40 specialists for emergency preparedness and response in its headquarters and four regions including a Regional State Liaison Officer in

each region who serves as the NRC representative on the FEMA Regional Assistance Committees that assist state and local government officials in emergency planning. In addition, NRC has a significant number of nuclear and radiological health

scientists, reactor and radiological inspectors, and other technical specialists on its

staff. FEMA has approximately 90 specialists in its radiological emergency preparedness program in headquarters and 9 regions with nuclear power plants. NRC and FEMA have been working together since the TMI accident in emergency planning, exercises, and response and have developed complementary roles and responsibilities. The roles and responsibilities of the NRC and FEMA for radiological

emergency preparedness are defined in NRC and FEMA regulations (10 CFR 50 and

44 CFR 350, respectively) and in a Memorandum of Understanding between the two

agencies. The NRC is responsible for making radiological health and safety decisions

with regard to the overall status of emergency preparedness, and for reactor licensee

oversight and response to radiological events onsite and within the physical and radiological boundaries of the reactor facility. FEMA provides support functions to

NRC during emergency situations and is responsible for offsite coordination of emergency management with state and local governments in the jurisdictions surrounding the reactor facility. NRC has significant resources and expertise in both

technical and radiological areas to deal with reactor operations and events. FEMA

provides specialities dealing with emergency management and associated logistics,

particularly, for coordination with state and local governments and general population.

The Commission has directed the NRC staff to work with FEMA to establish and

resolve an appropriate policy on KI use and stockpile issues. Question 17. (B) Why do you dispute FEMA’s conclusions regarding KI stockpiles? Answer. The NRC and FEMA are in agreement on many aspects of the KI issue. On June 14, the Commission published a proposed rule requiring licensees to consider, as part of their emergency planning, the prophylactic use of KI as a supplement to evacuation and sheltering. See Proposed Rule, 64 Fed. Reg. 31,737. Both

the NRC and FEMA agree that the states will make the final decision whether to

include KI for the general public in their emergency preparedness (EP) programs.

The Commission believes that the overall cost of KI is minimal when placed in the

context of emergency planning. However, as we state in response to Question 15(A), because states are not required to stockpile, the NRC believes that regional stockpiles may be a prudent and

reasonable approach to making KI available to emergency response officials in the

very unlikely event of a severe reactor accident that includes a significant early

radioiodine component. The NRC is confident, based on a long record of coordination

and cooperation between the two agencies, that the NRC and FEMA staffs will successfully resolve the KI stockpile issue. Question 18. How much radioactive solid materials by volume and by radioactivity

have been released or cleared from regulatory control either on a ‘‘case-by-case’’

basis or through other exemption processes? Answer. The NRC has approved specific releases of solid material on a case-bycase basis from NRC facilities. Over the past year, these releases include an estimated 5000 metric tons of calcium fluoride with a low enriched uranium activity

of approximately 3 pCi/g and an estimated 175,280 pounds of calcium fluoride with

a natural uranium activity of approximately 7 pCi/g. In both cases, there would be

little, if any impact to workers or members of the public. To put these releases in perspective, the Environmental Protection Agency encourages the recycling of coal ash, with a natural uranium activity that may be an order

of magnitude or more higher, in building materials. Naturally occurring radioactive

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materials at these or higher levels can also be found in fertilizers and other consumer products.

Question 19. How much NRC resources (budget and staff, including contracts)

have been and are projected to be used to issue standards for clearance or release

of radioactive material from regulatory control?

Answer. Prior to FY 1999, NRC expended $2.6 million contract support to develop

NUREG-1640, ‘‘Radiological Assessments for Clearance of Equipment and Materials

from Nuclear Facilities’’ for use in developing regulations. This report contains the

technical basis for calculating doses from release of solid materials.

NRC has budgeted an additional $6.5 million (30 FTE and $3.5 million contract

support) over the next 3 ° years to develop regulations, if necessary.

Question 20. In an attachment to a May 3, 1999 letter to me, NRC staff noted

that ‘‘The NRC regulatory oversight and authority does not extend to the U.S. offsite electrical grid system,’’ and that ‘‘FERC and NERC have not identified to the

NRC the need to keep particular nuclear power plants running during the Y2K

transition.’’

(A) If the NRC’s mandate is the public health and safety at nuclear power plants,

and no specific need for power has been identified, why does the NRC propose to

allow licensee to violate health-based regulations in order to increase stability of the

grid?

Answer. The NRC does not propose to allow licensees to violate health-based regulations. If there is a need for power, the NRC proposes to exercise discretion upon

balancing the need for power with the public health and safety or common defense

and security of not operating against potential radiological or other hazards associated with continued operation. The NRC will exercise discretion only when it is

clearly satisfied that safety will not be unacceptably affected by exercising the discretion.

The NRC enforcement policy allows the exercise of enforcement discretion in certain situations to allow continued plant operation when it does not present an

undue risk to public health and safety and is in the public interest. This is consistent with NRC’s mandate to assure public health and safety.

The following is a summary of the interim enforcement policy published in the

Federal Register of Friday, July 30, 1999 (64 Fed. Reg. 41474) that will govern the

exercise of enforcement discretion by the NRC staff. The policy would be implemented when licensees of operating nuclear power plants find it necessary to deviate from license conditions, including technical specifications (TSs), in those cases

in which Y2K-related complications would otherwise require a plant shutdown that

could adversely affect the stability and reliability of the electrical power grid. This

policy does not extend to situations in which a licensee may be unable to communicate with the NRC. The policy is effective August 30, 1999 and will remain in effect through January 1, 2001. This policy only applies during Y2K transition or rollover periods (December 31, 1999, through January 3, 2000; February 28, 2000,

through March 1, 2000; and December 30, 2000, through January 1, 2001). During

these periods, a licensee may contact the NRC Headquarters Operations Center and

seek NRC enforcement discretion with regard to the potential noncompliance with

license conditions, including TSs, if the licensee has determined that:

(a) Complying with license conditions, including TSs, in a Y2K-related situation

would require a plant shutdown;

(b) Continued plant operation is needed to help maintain a reliable and stable grid;

and

(c) Any decrease in safety as a result of continued plant operation is small (considering both risk and deterministic aspects), and reasonable assurance of public

health and safety, the environment, and security is maintained with the enforcement discretion.

Licensees are expected to follow the existing guidance as stated in NRC Inspection Manual Part 9900 for Notices of Enforcement Discretion to the maximum extent practicable, particularly regarding a safety determination and notification of

NRC. A licensee seeking NRC enforcement discretion must provide a written justification, or in circumstances in which good cause is shown, an oral justification followed as soon as possible by written justification. The justification must document

the need and safety basis for the request and provide whatever other information

the NRC staff needs to make a decision regarding whether the exercise of discretion

is appropriate. The NRC staff may exercise enforcement discretion on the basis of

balancing the public health and safety or common defense and security of not operating against potential radiological or other hazards associated with continued operation, and a determination that safety will not be unacceptably affected by exercising

the discretion. The Director of the Office of Nuclear Reactor Regulation, or designee,

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will advise the licensee whether the NRC has approved the licensee’s request and,

if so, will subsequently confirm the exercise of discretion in writing. Enforcement discretion will only be exercised if the NRC staff is clearly satisfied that the action is consistent with protecting public health and safety and is warranted in the circumstances presented by the licensee. Although the NRC’s oversight of the electric grid system does not extend into the design and operation of the entire grid, it covers the design and operation of the

grid at its interface with the nuclear power plant, since the offsite power system

is the primary and preferred source of power for the functioning of structures, systems, and components important to safety. Although NERC has not identified the need to keep specific nuclear power plants running during Y2K transitions, the need to have many types of generating units

and sufficient reserve capacity on line as a precaution against Y2K events has been

identified. Should a Y2K problem lead to the common-cause system or device failure

and consequent loss of a particular group of generation facilities, such as gas-fueled

generation stations, then the remaining mix of generation units and reserves would

need to make-up the loss. Nuclear units operating during the Y2K transitions have

been factored into the overall strategy for preparing the electric power systems of

North America for transition into the year 2000.

Question 20. In an attachment to a May 3, 1999 letter to me, NRC staff noted that ‘‘The NRC regulatory oversight and authority does not extend to the U.S. offsite electrical grid system,’’ and that ‘‘FERC and NERC have not identified to the

NRC the need to keep particular nuclear power plants running during the Y2K

transition.’’

(B) How will the NRC evaluate a licensee’s oral justification that is delivered by phone?

Answer. During the Y2K transition, in support of the regulatory response facet of the NRC Y2K Contingency Plan, the appropriate NRC staff will be available at

the NRC Headquarters Operation Center, prepared to process enforcement discretion requests related to the Y2K problem. As stated in the summary of the interim

enforcement policy above, an oral justification supporting the licensee request for an

enforcement discretion must be followed by a written justification. Based on the

staff’s evaluation of licensee request and justification, the Director of Nuclear Reactor Regulation, or designee, will orally advise the licensee whether the NRC will exercise enforcement discretion, and, if so, will subsequently confirm with a written

a notice of enforcement discretion. The NRC will also have inspectors at all nuclear

power plant sites to provide on-site evaluation of the licensee’s requests and justifications.

Question 21. (A) How will cleanups differ, and at what types of sites, if the clean- up standards are those favored by the NRC vs. those proposed by the EPA? Answer. NRC published a final rule establishing radiological criteria for decommissioning in July 1997. This rule established 25 millirem per year (mrem/yr) from

all potential exposure pathways as the acceptable criterion for release of licensed

sites for unrestricted use. This dose limit is coupled with the provision that the dose

be As Low As is Reasonably Achievable (ALARA). EPA believes that this is not protective of the public health and the environment and stated that 15 mrem/yr from

all pathways, with separate limits established for groundwater, is acceptable. The

EPA limits on groundwater would be the maximum contaminant levels (MCLs)

specified in 40 CFR 141, National Primary Drinking Water Regulations. We note

that EPA has not promulgated its 15 mrem/yr standard nor its position that drinking water MCLs should be applied to groundwater by rulemaking. It has done so

by guidance documents not subject to an Administrative Procedure Act rulemaking

process. A proposed rule was withdrawn by the EPA in December 1996 when it was

heavily criticized in the interagency discussions conducted by the OMB’s Office of

Information and Regulatory Affairs.

The NRC has taken the position (Chairman Jackson letter to Senator John H.

Chafee, dated July 16, 1998) that a 25 mrem/yr all-pathways dose criterion provides

a dependable, risk-based regulation that is consistent with the recommendations of

national and international scientific organizations. The NRC has performed extensive cost-benefit analyses for the application of MCLs for radionuclides in groundwater at, or near, decommissioned sites in the voluminous generic environmental

impact statement that accompanied the rule and has found that it is not appropriate. For example, strontium-90 remediation by the pump and treat method to

achieve the current EPA MCL of 0.06 mrem/yr would cost $23 billion/death averted

according to the GEIS.

EPA has neither established, nor proposed, a generally applicable environmental

standard for the cleanup of radiologically contaminated sites. EPA has provided

guidance that an all-pathways standard of 15 mrem/yr, in conjunction with a sepaVerDate 27-JAN-2000 14:51 Feb 01, 2000 Jkt 010199 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 E:\HEARINGS\58507 txed02 PsN: txed02
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1 Calculated using EPA-570/9-76-003, ‘‘National Primary Drinking Water Regulations,’’ Appendix B methodology. 2 Calculated using EPA-520/1-88-020, ‘‘Federal Guidance Report No. 11,’’ Dose Conversion Factors for Ingestion.

rate groundwater standard based on the maximum contaminant levels (MCLs) established under the Safe Drinking Water Act, should be applied to such sites. Although concentration goals for cleanup are site, radionuclide, and scenario dependent, under NRC regulations. given the same exposure scenario and assumptions, the

cleanup of building surfaces, soil and/or groundwater would likely be marginally less

by an insignificant amount from the public health and safety perspective. In addition, in these cases, less low-level radioactive waste would be generated. In addition,

it is likely that imposition with the MCLs would require more complex final surveys

to demonstrate compliance for some sites and potentially great costs for no safety

benefit. Indeed, the GEIS found potential net negative health effects for soil cleanup

to EPA levels at reference facilities because the marginal safety benefits of removing

slightly radioactive soil in large quantities are more than offset by the negative

health effects of transporting the material. In some cases, compliance with the MCLs could require additional groundwater treatment that would not be required under the NRC regulation. Such treatment

could significantly delay the completion of decommissioning. In other cases, use of

MCLs may be less protective than NRC’s all-pathways standard because: the MCLs

are based on a modeling approach that has not been updated since 1963 to reflect

the current technology on the uptake and potential doses resulting from ingestion

of radionuclides through drinking water; MCL requirements do not cover all radionuclides; and the use of MCLs would not provide a consistent risk standard for different radionuclides because the dose 1 at the current MCLs 2 can range from 0.01 millirem/year for the radionuclide promethium-147 to 30 millirem/year for thorium232.

Affected facilities would include a cross-section of medical, academic, and industrial facilities; fuel cycle facilities; research reactors; and power reactors. Question 21. (B) At what fraction of NRC-licensed facilities would the cleanups

be affected?

Answer. based on a review of the types of licensees that would be required to sub- mit a decommissioning plan to NRC for approval prior to license termination, approximately 40% of NRC-licensed facilities required to submit a decommissioning

plan could be affected. It is estimated that the same percentage of Agreement State

facilities would also be affected.

Question 22. (A) Is the dispute between the EPA and the NRC solely that of a 15 mrem standard versus a 25 mrem standard?

Answer. No, the disagreement between the EPA and the NRC is broader than that of a 15 mrem standard versus a 25 mrem standard. The agencies also disagree

on the need to demonstrate compliance with standards for individual pathways (e.g.,

drinking water/groundwater) versus demonstration of compliance with an all-pathways standard. The NRC has taken the position (Chairman Jackson letter to Senator John H. Chafee, dated July 16, 1998) that 25 mrem/yr all-pathways dose criterion provides

a dependable, risk-based regulation that is consistent with the recommendations of

national and international scientific organizations. The EPA faults the NRC for not

establishing a separate, specific requirement for the groundwater pathway that incorporates requirements to meet specified maximum contaminant levels (MCLs).

The NRC has performed extensive cost-benefit analyses for the application of MCLs

for radionuclides in groundwater at or near decommissioned sites in the voluminous

GEIS that accompanied NRC’s rule and has found that it is not appropriate. For

example, Sr-90 remediation by the pump and treat method to achieve the current

EPA MCL of 0.06 mrem/yr would cost $23 billion/death averted according to the

GEIS. The NRC also believes that in some instances the application of MCLs in

groundwater may be less protective than NRC’s all-pathways standard because: (1)

the MCLs are based on a modeling approach that has not been updated in over 30

years, (2) MCL requirements do not cover all radionuclides, and (3) MCLs do not

provide a consistent risk basis for license termination or waste disposal.

The health effects of 15 mrem/yr versus 25 mrem/yr are often characterized by

EPA as a 2x10–4 (2E-4) difference in lifetime cancer mortality. This is based on a

linear no threshold model for estimating the effects of radiation, which national and

international advisory bodies recommend be used by regulators. However, these bodies also recognize that applying the model at low doses and low dose rates is a very

large extrapolation from where health effects have actually been demonstrated, primarily in Hiroshima and Nagasaki survivors who received more than 20,000 mrem

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in a very short time period. That is why they recommend a 100 mrem/yr public dose

limit and the use of constraints on the order of 25-30 mrem/yr within that limit for

exposures to any individual source of radioactivity. The advisory bodies recognize

the possibility that there is potentially no health benefit in reducing exposures at

these very low levels, less than 10% of natural background radiation. Question 22. (B) What other aspects of the site release standards could be affected

by the proposed amendment? Answer. The proposed amendment would allow licensees to demonstrate compliance with a single all-pathways individual dose limit versus demonstration of compliance with two standards, an all-pathways standard and an individual pathway

standard (e.g., groundwater). Question 22. (C) Do the EPA and the NRC disagree on the degree of risk exposed individuals should undergo, on the risk posed by a given level of radiation, or both? Answer. The NRC and the EPA generally agree on the risk posed by a given level of radiation and on the maximum total dose to an individual from all sources (i.e.,

100 mrem/yr), although the NRC believes that there is great uncertainty of the risk,

if any, posed by low levels of radiation. However, the NRC and the EPA disagree

on the degree of risk that is acceptable for exposed individuals from a single source.

For example, the NRC has proposed an annual, all-pathway, individual dose limit

of 25 mrem/yr (1.25 x 10–5 annual risk of fatal cancer) in its proposed regulations for disposal of high-level waste at Yucca Mountain (10 CFR Part 63) and in its final

regulation establishing radiological criteria for license termination (10 CFR Part 20

Subpart E). The EPA has commented that NRC’s regulation is not protective and

recommends the individual dose limit be reduced to 15 mrem/yr (7.5 x 10–6 annual

risk of fatal cancer). However, although the risk levels are different, because of the

uncertainty in the linear no threshold hypothesis and the risk estimates themselves,

the NRC believes that 25 mrem/yr is fully protective of public health and safety. The EPA and the NRC also disagree on the need for separate requirements (i.e., maximum contaminant levels or MCLs) to protect groundwater. NRC believes that

an all-pathway dose limit protects individuals from all pathways including groundwater. Thus, NRC considers separate requirements for groundwater protection unnecessary. Additionally, protection of groundwater, at levels dictated by MCLs for

any organ, can require a level of protection more than 100 times more restrictive

than the all-pathway dose limit (e.g., the MCL for iodine-129 dose to the thyroid

contributes only 0.1 mrem/yr to the individual dose limit of 25 mrem/yr). NRC is

not aware of any health and safety basis for limiting annual dose to fractions of a

millirem.

The NRC fully considered the 15 mrem/yr versus 25 mrem/yr all-pathways stand- ard in its rulemaking on the license termination rule. A majority of commenters

suggested a 25 mrem/yr or higher standard. Other commenters supported essentially a zero standard—no radiation above background should remain. EPA was almost unique in supporting 15 mrem/yr. As noted above, international and national

standards bodies recommend 25-30 mrem/yr as a constraint for any given exposure

within an overall 100 mrem/yr public dose standard. Also as noted above, the voluminous GEIS accompanying the NRC rule demonstrated very large costs for very

little benefit in reducing the decommissioning unrestricted release standard from 25

mrem/yr to the APA’s proposed 15 mrem/yr plus groundwater application of MCLs.

Indeed, in many cases there was a net negative health effect as a result of the additional cleanup.

Question 23. (A) Would releases from any sites under NRC’s proposed standards

likely exceed maximum contaminant levels permitted under the Safe Drinking

Water Act?

Answer. Because NRC’s regulation is an all-pathways dose limit, and this regulation exceeds some of the MCLs, it is possible that releases from some sites under

the NRC standard could exceed the maximum contaminant levels.

Compliance with the maximum contaminant levels (MCLs) can be very restrictive

because: (1) MCLs for certain radionuclides limit doses to levels significantly below

NRC’s proposed all-pathway dose limit (e.g., the MCL for iodine-129 is limited by

the dose to the thyroid, which contributes only 0.1 mrem/yr to the all-pathways individual dose limit of 25 mrem/yr), and (2) EPA has applied groundwater protection

requirements to small volumes of water (i.e., applied to any portion of a special

source of ground water), rather than to water that is indeed likely to be consumed

as drinking water.

The NRC also believes that the application of radionuclides in groundwater may

be less protective than the NRC’s all-pathways regulation because: (1) the MCLs are

based on a modeling approach that has not been updated in over 30 years, (2) MCL

requirements do not cover all radionuclides, and (3) MCLs do not provide a consistent risk basis for license termination or waste disposal.

70

For the proposed high-level waste repository at Yucca Mountain, application of MCLs to small volumes of water (e.g., 10 acre-ft or approximately 12 thousand cubic

meters) could require the repository to be, in essence, a zero-release facility. It

would be difficult for the Department of Energy to demonstrate zero releases over

the proposed compliance period of 10,000 years at any site, except for a site in natural salt formations which generally have no potable groundwater associated with

them. For example, the groundwater issue did not arise at the Waste Isolation Pilot

Plant because of the absence of potable groundwater at that facility. Question 23. (B) How would this arise?

Answer. For decommissioning sites, MCLs could be exceeded at sites where groundwater is the principal exposure pathway. In the high-level waste repository

program, MCLs could be exceeded in several situations. First, MCLs could be exceeded if the compliance demonstration is required to assume a small volume of

water is mixed with releases from a relatively small number of waste packages (e.g.

approximately 10 waste packages). Conversely, MCLs could be exceeded if releases

from a larger number of containers (i.e., hundreds of waste packages or a few percent of the total number of waste packages in the repository) are mixed with larger

volumes of water (e.g., 100,000 cubic meters of water or more). In each of these

cases, the most restrictive MCL would be a projected dose of iodine-129 to the thyroid. That dose, in terms of total effective dose equivalent (TEDE), would be 0.1

mrem/yr, a small fraction of the dose limit of 25 mrem/yr TEDE in 10 CFR Part

63. NRC is not aware of any health and safety basis for limiting annual dose to fractions of a millirem.

Question 24. (A) How could the dispute between the EPA and the NRC over radiation standards be resolved other than by amending Superfund? Answer. Other alternatives include: (1) amending the Atomic Energy Act of 1954 to remove joint jurisdiction by NRC and EPA; (2) establishment of a Congressionally-mandated cleanup standard; (3) establishment of a generally applicable environmental standard by the EPA within its regulations with which NRC would be

required to comply; and (4) recognition by the EPA that the NRC’s regulation is protective of the public health and safety and the environment. We believe that the EPA’s commitment to its current regulatory approach differs so significantly from the NRC’s support of fundamental radiation protection standards as described in national and international standards, that a Congressional resolution of these differences is desirable.

Question 24. (B) Would the proposed amendments have broader implications for

EPA’s oversight of closed NRC-licensed facilities than just the radiation standards? Answer. No, the proposed amendments would not impact the EPA’s oversight of non-radiological contaminants at NRC-licensed facilities. In fact, the NRC and the

EPA have a generally successful working relationship at NRC-licensed facilities that

are contaminated with mixed waste (i.e., waste that contains both hazardous waste

subject to the Resource Conservation and Recovery Act and radioactive waste subject to the Atomic Energy Act) and in developing joint regulatory guidance for mixed

waste. The proposed amendments will not impact this relationship.

Question 25. Why should neighbors of nuclear power plants not receive the same

level of protection that people who live near Superfund sites receive?

Answer. We believe that an equivalent level of protection is achieved after considering the methods used in applying the dose standard. NRC’s 25 mrem/yr dose limit

also includes a provision that the dose must be as low as is reasonably achievable

(ALARA). This ALARA provision will generally achieve doses less than 25 mrem/

yr. Actual doses will also be less than the 25 mrem/yr limit because of the conservatism built into dose modelling and resultant projections. Because of the uncertainties involved in such projections, the models used by NRC use several layers of conservatism. The combined effect of NRC’s ALARA requirement and the conservatism

used in estimating dose for determining compliance, will generally result in actual

doses significantly less than NRC’s dose limit.

The approach suggested by EPA results in the imposition of the CERCLA risk

range (i.e., 10–6 to 10–4) on radionuclides. The CERCLA guidance indicates that a

risk level of 10–4 is a level of protection that is not to be exceeded and that NRC’s

25 mrem/yr dose criterion is not protective because it would exceed that level.

NRC has reached the following conclusions regarding this risk range and its application: (1) EPA’s derivation of 10–4 as a protective value appears to be a policy

judgement, and is inconsistent with international findings, (2) EPA inaccurately

states that NRC’s rule is not protective, and (3) EPA inconsistently uses its protective value of 10–4. These conclusions are discussed in the enclosure.

Enclosure: Discussion of NRC Concerns with EPA’s CERCLA Guidance Contained

in the December 12, 1997 letter from Chairman Jackson to Carol Browner on Establishment of Cleanup Levels for CERCLA Sites with Radioactive Contamination

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DISCUSSION OF NRC CONCERNS WITH EPA’S CERCLA GUIDANCE

1. EPA’s derivation of 10–4 as a protective value appears to be a policy judgement, and is inconsistent with international findings.

The CERCLA guidance indicates that a risk level of 10–4 is a level of protection

that is not to be exceeded and that the 25 mrem/yr dose criterion in NRC’s final

rule is not protective because it would exceed that level. A rationale for EPA’s value

of 10–4 can be found in a Federal Register notice (FRN) for EPA’s ‘‘National Emission Standards for Hazardous Air Pollutants (NESHAPs)’’ under the Clean Air Act

(54 FR 38044, September 14, 1989). The FRN notes that in the Vinyl Chloride decision the EPA was directed to determine an acceptable risk level based on a judgement of what risks are ‘‘acceptable in the world in which we live’’. In response to

the Vinyl Chloride decision [Natural Resources Defense Council, Inc. v. EPA, 824

F.2d at 1146 (D.C. Cir. 1987)], the FRN indicates that EPA compiled a review of

societal risks to place risk estimates in perspective and to provide background and

context for the EPA’s judgement on acceptability of risks ‘‘in the world in which we

live’’. The FRN states that individual risk of premature death in EPA’s survey

ranged from 10–1 to 10–7, and that the level of approximately 10–4 is within the

range for individual risk in the survey and at a value that comports with many previous health risk decisions by EPA. The EPA risk value is applied in the CERCLA

context [see 55 FR at 8715 (March 8, 1990)].

The International Commission on Radiation Protection (ICRP) and the National

Council on Radiation Protection and Measurements (NCRP) use an approach similar

to EPA’s in setting an acceptable risk level. ICRP and NCRP are organizations

which are chartered, and internationally recognized, for the development of basic radiation protection standards. Their findings are contained in ICRP Publication 60

and in NCRP No. 116, respectively. Based on their review of health and societal

issues, both documents (while acknowledging the difficulty of setting standards for

an ‘‘acceptable’’ public dose limit) arrive at 100 mrem/yr as a level that can be said

to be acceptable. NCRP 116 notes that this value includes a review of risks of mortality faced by the public. The ICRP and NCRP approaches further reduce their 100

mrem/yr limit by the principle of ‘‘optimization,’’ which includes considerations of

constraints and cost-effectiveness.

Using the principles of setting of ‘‘individual dose and risk limits’’ and ‘‘optimization of protection’’ (noted above) and an additional margin to allow for the potential

for exposure to more than one radiation source, the NRC issued a final rule on radiological criteria for license termination. The rule includes a dose criterion of 25

mrem/yr and further reduction based on ALARA (62 FR 39058, July 21, 1997).

The EPA approach of setting an acceptable risk level in the context of reviewing

risks acceptable in society is similar to that followed by ICRP and NCRP, but, clearly, is no more scientifically credible than the ICRP or NCRP reports. The FRN on

NESHAPs acknowledges that because of the uncertainties over health effects, EPA’s

decision will depend to a great extent on policy judgement. Therefore, there is no

reason to conclude that risk limits set through EPA’s process are any more appropriate for protection than those set by ICRP and NCRP, nor is there a reason to

conclude that NRC’s rule is not protective.

2. EPA inaccurately states that NRC’s rule is not protective

The CERCLA guidance does not address several items which will further lower

the estimated risk from the implementation of NRC’s rule. These items are inherent

either in the NRC rule or in the characteristics of radioactive materials and include

the following:

a) the requirement in the NRC rule that doses be reduced below the rule’s dose criterion through the ALARA (‘‘as low as reasonably achievable’’; defined in 10

CFR 20) process further lowers the risk for the large majority of NRC sites;

b) radioactive decay of key contaminant nuclides which, for the large number of

NRC facilities with contaminant nuclides with half-lives equal to 30 years or

less, will result in reduction of the risk near or below that which EPA finds protective; and

c) the uncertainties associated with estimating risks from radiation at such low dose

levels. Although NRC indicated in the FRN for its final rule (at 62 FR 39062)

that it was not altering its policy regarding use of the linear non-threshold

model as part of the rulemaking, the FRN also stated that there are uncertainties as to whether adverse radiation effects occur at all at the low levels of radiation being discussed. The actual risk from 25 mrem/yr is well within the

boundaries of scientific uncertainty regarding the magnitude of the actual

health effects at these low doses. Whether or not health effects result from a

dose as small as 100 mrem is uncertain, as evidenced by the following stateVerDate 27-JAN-2000 14:51 Feb 01, 2000 Jkt 010199 PO 00000 Frm 00074 Fmt 6633 Sfmt 6621 E:\HEARINGS\58507 txed02 PsN: txed02
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ment of the Committee on the Biological Effects of ionizing radiation (BEIR V)

in its 1990 report:

Studies of populations chronically exposed to low-level radiation, such as

those residing in regions of elevated natural background radiation, have not

shown consistent or conclusive evidence of an associated increase in risk of

cancer. This same point was made in a recent safety evaluation report for National Aeronautics and Space Administration (NASA) Cassini mission (July 31, 1997),

that EPA participated in, which referenced a Health Physics Society position

noting that, ‘‘below 10 rem the risk of health effects are either too small to be

observed or are non-existent.’’ Further, the Cassini report concluded that at the

low individual dose rates expected that there is a high probability that there

will be no resultant latent cancers.

3. EPA inconsistently uses its protective value of 10–4

The CERCLA guidance states that the 25 mrem/yr dose criterion in NRC’s rule results in an estimated lifetime risk of cancer incidence of 5x10–4 and that this is

not protective compared to 10–4. On the other hand, the CERCLA guidance states that a 15 mrem/yr dose standard (estimated lifetime risk of cancer incidence of

3x10–4) is acceptable because ‘‘3x10–4 is essentially equivalent to the presumptively safe level of 10–4’’ (the CERCLA guidance cites to the Clean Air Act rulemaking (54 FR 51677) as the basis for this equivalence).

The CERCLA guidance statements are inconsistent and raise two specific issues.

First, it is not apparent why one value would be considered unacceptable while the

other is acceptable even though both exceed the 10–4 risk level. Second, EPA uses

cancer incidence to assess acceptability of the radiation dose levels compared to the

10–4 value, even though the FRN on NESHAPS (54 FR 38044) indicates that the

value of 10–4 was based on a survey which resulted in a range of lifetime risk of

premature mortality to be 10–1 to 10–7. Thus, the point of comparison for assessing

acceptability of the risk should be premature mortality. Further, it should be noted

that the NCRP and ICRP use cancer mortality as the basis for their decisions. If

the risk coefficient for mortality is used, the calculated estimate of lifetime risk from

25 mrem/yr is 3.8x10–4 (based on a risk coefficient of 5x10–4 versus 7x10–4 for incidence), which approximates the 3x10–4 value that EPA concluded as essentially

equivalent to the protective value 10–4.

Question 26. In recommending elimination of the foreign ownership restrictions in

the Atomic Energy Act, has the NRC obtained the concurrence of agencies responsible for defending the U.S. from national security threats, including the Department of Defense, the Joint Chiefs of Staff, the Director of Central Intelligence, and

the Director of the Federal Bureau of Investigation? If not, why not? If so, please

provide written copies of each agency’s concurrence for the record.

Answer. The Commission forwarded this legislative proposal, along with others

that have now been incorporated into H.R. 2531, to the Office of Management and

Budget (OMB), which normally circulates such proposals among Executive Branch

Agencies for the purpose of obtaining their views. OMB has informed us that it provided the NRC draft submission to several agencies, including the Department of

Energy, the Department of Defense, the Department of Justice, the Department of

State and the National Security Council. According to OMB, none of these agencies

objected to the proposal recommending elimination of the foreign ownership restriction.

With respect to components of a Department, such as the Federal Bureau of Investigation (which is a component of the Department of Justice), we understand that

OMB generally leaves it to the cognizant Department to determine which of its components should be consulted during the Departmental review of proposed legislation

forwarded by OMB. In addition, we understand that OMB does not customarily circulate proposals to the Central Intelligence Agency.

Any substantive or editorial comments received by OMB are provided to the agency proposing the legislation. OMB does not provide the proposing agency (in this

case, NRC) with copies of written responses of approval or ‘‘no comment’’ that OMB

has received.

Question 27. If the foreign ownership restrictions of the Atomic Energy Act are

repealed, on what basis would the NRC determine whether a particular foreign acquisition would be ‘‘inimical to the common defense and security,’’ the standard

under which you testified that such acquisitions would be reviewed?

Answer. If the proposed legislation were enacted, the Commission would consider

a number of factors in making its common defense and security finding. Among the

considerations would be the overall state of relations between the United States and

the foreign nation; the nonproliferation credentials of the applicant’s nation and

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whether that nation supports international terrorism. If the Commission has any

common defense and security concerns, the Commission would presumably consult

with the Executive Branch before making its statutory findings on the application.

Question 28. If U.S. relations with the home country of a foreign owner of a U.S. nuclear plant deteriorated following the acquisition, so that such ownership now

threatened the common defense and security, would the NRC be able to revoke a

license or order a divestiture?

Answer. The Atomic Energy Act and the Commission’s regulations do not permit foreign entities to directly own nuclear power plant facilities. To the extent that a

foreign interest owns or controls to some degree a licensee, a negation action plan

would have been in place to insulate any matters that might affect common defense

and security from the foreign interest, even if the foreign interest was associated

with a friendly nation. Thus, if U.S. relations with the respective nation of the foreign interest deteriorated, the foreign ownership or control should not be able to

have any impact on the common defense and security by reason of the negation action plan. In general, the NRC could revoke a license or take other regulatory action

if at any time after the issuance of the license it determined that possession of the

license would be inimical to the common defense and security.

Question 29. If there was an accident at a nuclear plant and the U.S. subsidiary or affiliate of a foreign owner lacked substantial assets other than the plant itself,

or failed to obtain sufficient insurance coverage, could we be sure that the victims

would be able to obtain damages from the assets of a foreign parent? Answer. The Price-Anderson Act does not contemplate victims needing to seek damages from the assets of any licensee that has suffered a serious nuclear accident. The long-standing provisions and practices dealing with the damages that

could be associated with an accident at a nuclear power plant are intended to assure

that potential victims are adequately compensated irrespective of plant ownership. Under the Atomic Energy Act, all commercial nuclear power plants require a li- cense to operate; under the Price-Anderson Act a condition of that license requires

that the plant be covered by the maximum commercial insurance available. The

NRC receives endorsements of the policies, and, therefore, has assurance that the

maximum commercial insurance coverage is in effect. The Price-Anderson Act further provides that every operating nuclear power plant participate in a pool with retrospective premium obligations. That is, the requirement to pay damages is not initiated until there is an accident sufficiently large

that it appears that the damages will exceed the amount of commercial insurance

coverage. The industry pool covers all damages up to the limit of liability for the

nuclear incident. The value of the industry pool is now of the order of $9 billion. Only if damages were to exceed the value of the industry pool would Congress be called upon to consider whether to compensate for additional damages and, if so,

the amount and the means.

Question 30. Is it fair to ask the U.S. taxpayer under Price-Anderson insurance

coverage to pick up the costs of a catastrophic nuclear accident caused by a foreign

company operating on U.S. soil?

Answer. Insurance coverage under the Price-Anderson Act is not funded by U.S.

taxpayers.

As explained in the response to Question 29, above, every operating nuclear power

plant has obtained coverage to the maximum insurance coverage available. Additional coverage is provided under the Price-Anderson scheme; that coverage does not

rely upon U.S. taxpayer funding for the payment of damages in the event of an accident at a nuclear power plant. Only if the damages exceed combined funds of the

required maximum insurance coverage available and of the required nuclear power

reactors’ own required pool would Congress be called upon to consider how best to

deal with that situation. Furthermore, It is notable that none of the funds available

under the Price-Anderson scheme may cover damage to the nuclear power plant

itself. The funds are entirely reserved for third party liability, that is, for those

other than the licensees and their workers. (Workers receive compensation pursuant

to Workmen’s Compensation laws.)

Question 31. (A) What do you anticipate the length of a combined construction and

operating license would be (from the date the license was issued) under the NRC

proposal?

Answer. The length of a combined license would be 40 years, in accordance with

Section 103.c of the Atomic Energy Act of 1954 (1954 Act).

The NRC has requested a legislative clarification to the 1954 Act to eliminate the

uncertainty associated with the duration of operation under a combined license. The

NRC’s proposal is that the start of the 40-year period begins after completion of construction, when the Commission makes the finding required by 10 CFR 52.103(g).

Since, under the older two-step licensing process, the operating license for a facility

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became effective immediately upon issuance of such a license, the duration of operation of the facility could be a full 40 years. There is no reason why the potential

duration of operations under a combined license should be less.

Question 31. (B) Would there be any upper bound on the total length of the license?

Answer. A combined license issued under 10 CFR Part 52 would be limited to 40

years, in accordance with Section 103.c of the Atomic Energy Act of 1954. The licensee could request a renewed operating license (not to exceed 20 years) under 10

CFR Part 54.

Question 32. I understand the proposal to eliminate NRC antitrust review is included in the President’s electricity restructuring proposal. Wouldn’t a comprehensive electricity restructuring bill that addressed broader market power concerns be

a more appropriate forum in which to consider this review?

Answer. NRC’s antitrust proposal is contained in both the Administration’s electricity restructuring bill (H.R. 1828) and NRC’s Authorization Bill for Fiscal Year

2000 (H.R. 2531). Enactment of the antitrust review elimination proposal through

either of these bills would be welcomed by the Commission.

NRC’s antitrust reviews are duplicative of other Federal agencies’ efforts, and continuing this agency’s efforts in this area is wasteful of its resources and contrary

to the objective of streamlining government. Thus, even absent an electricity restructuring proposal, it would make sense for the NRC to go forward with a proposal to eliminate NRC antitrust reviews. For this reason, an NRC authorization

bill is also an appropriate forum in which to consider a proposal to eliminate NRC

antitrust reviews.

Question 33. (A) Do you think that removing a requirement that hearings on uranium enrichment facilities be ‘‘on the record’’ will enhance public confidence in the

NRC? If so, how?

Answer. Removing the requirement that hearings on licensing of uranium enrichment facilities be ‘‘on the record’’ will provide the Commission with the same flexibility to determine the hearing procedures appropriate for such a hearing as the

Commission already has with respect to other adjudicatory hearings regarding NRC

licensing held under section 189 of the Atomic Energy Act. The Commission has the

discretion to determine the degree of formality required in the latter proceedings,

and is of the view that having such discretion is beneficial to the public.

Hearings that are required to be ‘‘on the record’’ must conform to the more elaborate formalities prescribed by the Administrative Procedure Act, and if not appropriately disciplined, can be inefficient, protracted, and costly to both the government

and the parties to the proceedings. The high cost, length, and formality of even welldisciplined proceedings can discourage public participation. We know of no other

technical agency in the Federal government makes scientific and technical decisions

in trial-type hearings. In fact, EPA, in its comments on our proposed standards for

the nation high-level waste repository, recommended against formal proceedings, as

did the DOE advisory committee that recommended in 1996 that DOE’s self-regulation of its own nuclear facilities be replaced by external regulation. In fact, more

and more Government agencies have been exercising greater flexibility in determining the appropriate hearing process in their adjudicatory proceedings on nontechnical issues, in recognition of the fact that more streamlined and less formal

proceedings can benefit the parties and the public, and help to conserve the resources of the agency holding the proceedings and the parties to the proceedings.

Striving for these goals should enhance public confidence in the NRC.

Question 33. (B) After this restriction was removed, what legislative direction

would remain on the form of hearings and on the recording of outside views on the

licensing?

Answer. If the restriction were removed, the following legislative directions would

remain in the Atomic Energy Act with regard to hearings and the recording of outside views on the licensing of a uranium enrichment facility:

—section 193 (b)(1) requires the Commission to conduct a single adjudicatory hearing with regard to the licensing of the construction and operation of a uranium

enrichment facility under section 53 and 63 of the Act;

—section 193(b)(2) requires the hearing to be completed and a decision issued before

the issuance of a license for that purpose;

—under section 189 a., in any proceeding under the Act for the granting of a license,

the Commission must grant a hearing upon the request of any person whose

interest may be affected by the proceeding, and must admit any such person

as a party to the proceeding.

—under section 189 b., the final decision in a hearing on the licensing of a uranium

enrichment facility is subject to judicial review.

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Question 34. (A) Would receiving gifts from NRC licensees or their contractors or

from associations that represent NRC licensees compromise the integrity of the

NRC?

Answer. No. To address the issue raised by this question, the NRC’s legislative

proposal regarding gift acceptance (which has been incorporated into H.R. 2531) provides that the Commission must establish written criteria for determining whether

to accept gifts, and that such criteria must take into consideration whether the acceptance of a proffered gift would compromise the integrity of, or the appearance

of the integrity of, the Nuclear Regulatory Commission or any officer or employee

of the Commission. The purpose of this provision is to require the NRC to develop

gift acceptance standards that will ensure that there will be no compromise—and

no appearance of compromise—of the integrity of the Commission or its employees.

It is noteworthy that a broad spectrum of Federal agencies, including independent

regulatory agencies such as the NRC, have statutory gift acceptance authority. The

Commission anticipates that this gift acceptance authority primarily would be used

to accept technical publications and training equipment and materials.

Question 34. (B) If the NRC accepts gifts with restrictions, would those with

money to give to the NRC be able to influence NRC priorities?

Answer. No. The Commission’s policy is to maintain an arms-length relationship

with its licensees, contractors, and others who might be motivated to seek influence

over NRC priorities. This would be reflected in the gift acceptance criteria that the

Commission would develop to implement the legislation.

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