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[Senate Hearing 106-1014]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 106-1014

           NUCLEAR REGULATORY COMMISSION: REGULATORY REFORMS

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
        CLEAN AIR, WETLANDS, PRIVATE PROPERTY AND NUCLEAR SAFETY

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH, 9, 2000

                               __________

  Printed for the use of the Committee on Environment and Public Works

                   U.S. GOVERNMENT PRINTING OFFICE
66-382                     WASHINGTON : 2001

_______________________________________________________________________
 For sale by the Superintendent of Documents, U.S. Government Printing 
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       one hundred sixth congress
                   BOB SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma            DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming                FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri        HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio            BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho              JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah              BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas          RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
                      Dave Conover, Staff Director
                  Tom Sliter, Minority Staff Director
                                 ------                                

        Subcommittee on Clean Air, Wetlands, Private Property, 
                           and Nuclear Safety

                  JAMES M. INHOFE, Oklahoma, Chairman
GEORGE V. VOINOVICH, Ohio            BOB GRAHAM, Florida
ROBERT F. BENNETT, Utah              JOSEPH I. LIEBERMAN, Connecticut
KAY BAILEY HUTCHISON, Texas          BARBARA BOXER, California

                                  (ii)

  
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                            C O N T E N T S

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                                                                   Page

                             MARCH 9, 2000
                               STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...    33
Graham, Hon. Bob, U.S. Senator from the State of Florida.........     5
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     1
Lieberman, Hon. Joseph I., U.S. Senator from the State of 
  Connecticut....................................................    33
Voinovich, Hon. George V., U.S. Senator from the State of Ohio...     2

                               WITNESSES

Adelman, David, project attorney, Nuclear Programs, National 
  Resource Defense Council.......................................    26
    Prepared statement...........................................    88
Beedle, Ralph, vice president and chief nuclear officer, Nuclear 
  Energy Institute...............................................    23
    Prepared statement...........................................    78
    Responses to additional questions from Senator Bob Smith.....    99
Domenici, Hon. Pete, U.S. Senator from the State of New Mexico...    35
Jones, Ms. Gary L., Associate Director of Energy, Resources, and 
  Science Issues, General Accounting Office......................    25
    Prepared statement...........................................    83
Kennedy, William, E., Jr., member, board of directors, Health 
  Physics Society................................................    28
    Prepared statement...........................................    36
Meserve, Richard, Commissioner, Chairman, Nuclear Regulatory 
  Commission; accompanied by Commissioners Nils Diaz, Jeffrey S. 
  Merrifield, Edward McGaffigan, Jr., and Greta Joy Dicus........     6
    Comments, Yucca Mountain.....................................    49
    Letter, Yucca Mountain.......................................    46
    Prepared statement...........................................    38
    Responses to additional questions from:
        Senator Inhofe........................................... 44-73
        Senator Smith............................................ 73-77
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama......    19
    Prepared statement...........................................    96

                          ADDITIONAL MATERIAL

Letter to Chairman Meserve, several Senators.....................    35
Statements:
    Health Physics Society.......................................    97
    Metals Industry Recycling Coalition..........................    96

                                 (iii)

  

 
           NUCLEAR REGULATORY COMMISSION: REGULATORY REFORMS

                              ----------                              

                        THURSDAY, MARCH 9, 2000

                                   U.S. Senate,    
             Committee on Environment and Public Works,    
    Subcommittee on Clean Air, Wetlands, Private Property  
                                        and Nuclear Safety,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:03 a.m. in 
room 406, Senate Dirksen Building, Hon. James M. Inhofe 
(chairman of the subcommittee) presiding.
    Present: Senators Inhofe, Voinovich, and Bennett.

          OPENING STATEMENT OF HON. JAMES M. INHOFE, 
            U.S. SENATOR FROM THE STATE OF OKLAHOMA

    Senator Inhofe. The meeting will come to order.
    Today's hearing continues the ongoing oversight of the 
Nuclear Regulatory Commission. I would like to welcome Chairman 
Meserve, nice to have you here. This is your first oversight 
hearing and I'm sure you'll enjoy it.
    [Laughter.]
    Senator Inhofe. Since the first hearing in July 1998, there 
have been many changes at the NRC. We had the relicensing 
program underway and reforms have taken place on the 
enforcement side and the NRC is moving toward more risk-based 
approaches.
    For the first time in years, people are beginning to look 
at nuclear energy in a different light than they have in the 
past as perhaps a viable option for our energy needs in the 
future. It is a safe, clean, cost efficient and reliable fuel 
source when managed properly.
    The NRC has an important mission to ``ensure adequate 
protection of the public health and safety, the common defense 
and security and the environment in the use of nuclear 
materials in the United States.'' I think it is important to 
understand the mission of the NRC and the fact that they are 
charged with protecting public health and the environment. The 
NRC remains the foremost government agency on issues involving 
nuclear safety and the impact on public health and the 
environment.
    Unfortunately, this issue was lost in the recent debate 
involving the nuclear waste storage facility. I want to 
reassure the Chairman and the Commissioners that as far as this 
subcommittee is concerned, you are indeed the recognized 
experts on this issue.
    There are a number of issues that I would like to have 
addressed today, either in questions or in testimony. There are 
a total of nine:
    No. 1, Is the relicensing process on schedule; will the NRC 
be able to handle multiple applications at once or are we going 
to end up with a bottleneck problem?
    No. 2, I'm still interested in the NRC's 5-year strategy 
plan. Last February I asked the GAO and the NEI to review the 
plan when it was finished. Unfortunately, this seems to be the 
nature of any bureaucracy--you don't get it until your deadline 
and we didn't get it until last week, so I'm not sure how much 
time the GAO and the NEI have had to look it over, but we want 
to talk about that in some depth.
    No. 3, is the NRC continuing to move toward a risk-based 
approach for regulations in enforcement and is it working.
    No. 4, I'm interested in hearing the results on the 
Enforcement Pilot Program the NRC conducted this past fall.
    No. 5, I'm concerned that the EPA has proposed standards 
for Yucca Mountain which are unworkable and did not follow the 
advice of the National Academy of Sciences. I'm interested in 
the NRC's perspective on this.
    No. 6, we will have witnesses on the second panel 
addressing the metals recycling issue. I'd like to hear whether 
it is really a health and safety issue or a matter of public 
perception. Mr. Meserve, in that respect, I'd like to have you 
stay to hear the second panel so that we would have that input 
and maybe some debate.
    No. 7, the GAO has completed their report on whether the 
changes at the NRC are filtering down to the rank and file 
employees. I'd like to hear peoples' perspective on those 
results. This involves changes and generally speaking, the 
rank-and-file don't like changes. I would like to know how that 
is coming.
    No. 8, the subcommittee will be addressing the 
reauthorization of the Price Anderson Act which provides an 
insurance program for nuclear facilities. Are any changes to 
the law needed to come up with a plan that is going to offer 
adequate protection.
    Finally, No. 9 and most importantly, is public safety being 
protected?
    Senator Voinovich.

        OPENING STATEMENT OF HON. GEORGE V. VOINOVICH, 
              U.S. SENATOR FROM THE STATE OF OHIO

    Senator Voinovich. Thank you, Mr. Chairman.
    I'm pleased to be here this morning for this hearing on the 
operation and program management of the Nuclear Regulatory 
Commission.
    I went to your website; you're familiar with what it says, 
but it is quite a responsibility. The very nature of nuclear 
materials makes the job of the NRC one of utmost importance. It 
is up to the NRC to make sure that our Nation's nuclear 
facilities are running at their safest possible level. Equally 
important is the safeguarding of our nuclear materials from 
misuse. The NRC is probably one of the few agencies in the 
entire country where the job requirement is 100 percent 
perfection. Failure to maintain strict safety requirements 
could have a disastrous impact on millions of people.
    It is also up to the NRC to make sure the United States has 
enough high quality nuclear material for the purpose of 
maintaining an effective nuclear weapons arsenal. One of our 
only four processors of this high quality material is the 
Portsmouth Gaseous Diffusion Plant in Piketon, OH. As our 
witnesses may be aware, I have a longstanding interest in the 
future of that plant.
    Since 1954, at the beginning of the cold war, the 
Portsmouth Plant's purpose was to enrich uranium for use in 
nuclear weapons and propulsion systems for naval vessels. Over 
the years, thousands of dedicated men and women in the civilian 
work force at Piketon helped keep our military fully supplied 
and our Nation fully prepared to meet any potential threat. 
Their success is measured, in part, with the end of the cold 
war and the collapse of the Soviet Union.
    As the Commissioners and the chairman are aware the U.S. 
Enrichment Corporation, which operates that plant, announced 
last month it would reduce its work force by 20 percent in the 
Portsmouth Gaseous Fusion Plant in Piketon, OH and its sister 
plant in Paducah. The NRC recertified USEC operation in both 
plants in January 1999, primarily based on USEC's investment 
grade corporate rating. However, on February 4, Standard & 
Poors downgraded USEC's credit rating to below investment grade 
level.
    The agreement on post closing conduct that USEC entered 
with the Department of Treasury outlined significant events 
which would allow USEC to close down one of its facilities. 
Because of their current downgrade, is NRC reevaluating its 
finding of ``inimicality''? That's one thing.
    Under the USEC Privatization Act, the NRC is authorized to 
review whether USEC's license would be inimical to the common 
defense and security of the United States or the maintenance of 
a reliable and economical source of enrichment services. To put 
it in a nutshell, just how important is that facility to our 
country's preparedness, both civilian and militarily? I would 
very much like to know what NRC thinks about it.
    Another issue I'm concerned about is the long-term storage 
of high-level nuclear wastes. I have talked with the chairman 
about this on several occasions. Without a long-term solution 
to this problem, the Perry and Davis-Besse Nuclear Plants in 
northeast Ohio will reach maximum capacity in 2007 and 2017 
respectively. If a permanent storage solution is not reached, 
it could jeopardize the viability of one or both of these 
plants. This is an important issue to Ohioans since 
approximately 12 percent of the electricity generated in Ohio 
comes from them.
    The American people have contributed--and I think this is 
really important--some $15 billion to design and construct a 
permitted home for high-level nuclear waste. Just over $6 
billion of that has already been spent. Since 1977 when the 
Davis-Besse Nuclear Plant was built, Ohioans have paid more 
than $287 million into this fund, $22 million just this last 
year. It is unconscionable for the Federal Government to 
continue to impose this tax without using these funds to finish 
constructing the permanent site.
    Last month, like 63 of my colleagues, I voted in favor of 
S. 1287, the Nuclear Waste Policy Amendments Act, to get the 
Federal Government off the dime. The point is, all this money 
has been coming in, part of it has been used, but the rest of 
it has gone into the General Fund of the United States and is 
spent for something else. The question is, when, if ever, is it 
going to be built and is it fair to continue to collect this 
money that goes into the General Fund?
    I've said to the people that have been paying this, the 
utilities and others who passed the cost on to their customers, 
when it finally comes time to be built, where is the money 
going to come from to build it. So I think all of us really are 
concerned about this. I think as a Nation, we have to stop 
playing politics and get on with it.
    One final item I'd like to bring up with the NRC is our 
Nation's lack of a coherent, cohesive energy policy. This is 
obviously an issue that will need to be addressed particularly 
in light of recent increases in prices for home heating oil and 
gasoline. I don't think we have any energy policy.
    We talk about what source of energy are we going to use in 
this country. Recently, Mr. Chairman, there was a meeting in 
Cleveland of some folks that were concerned about moving 
nuclear wastes through the city. My initial reaction was, you 
don't have to worry about that occurring because before they 
build that plant, I'll be in the ground, most of us will.
    The other aspect of it that was of interest to me is they 
were opposed to nuclear energy. They are opposed to nuclear 
energy, they are opposed to fossil fuel and when asked the 
question, what energy source, they said solar.
    Just think in terms of our Nation, we ought to start 
talking about these sources of energy that we have. Is nuclear 
power a viable source and if it is, we ought to make that clear 
and talk about its environmental benefits and get into this 
dialog. It just seems too often that the only people we hear 
from are the ones who are against everything. We don't hear 
enough from the people who really have all of the information, 
get them out and talk about the realities. In this particular 
case, we'd like to hear from you. Where do you stand on nuclear 
energy? Is it a viable source of energy for this country in the 
future? Should it be expanded?
    We know for sure that one of the problems with it has been 
over the years that we still don't know what we're going to do 
with our waste.
    Mr. Chairman, I appreciate the opportunity to be here this 
morning.
    Senator Inhofe. Thank you, Senator Voinovich. You bring up 
a real good point because one of the reasons I'm going to have 
to leave for just a few minutes during the course of this 
committee hearing is we have Secretary Richardson in the Senate 
Armed Services Committee. I can remember last year when we were 
developing our authorization bill, they talked in the 
President's budget about the money that was going to go into 
defense. I looked at the line and it was fuel savings, all this 
money they were going to save from fuel.
    I said at that time, it's not going to be a fuel savings. 
At that time, I think it was $10 a barrel. That it was going to 
go up because we have allowed ourselves, with a lack of energy 
policy in this country and I blame the Republican Presidents 
and Democrat Presidents alike for not having one. I really 
believe in the next Administration, we should just insist that 
we have one, have a cornerstone of that policy as to the 
percentage of dependency on foreign oil that we would have and 
we wouldn't get ourselves in the position we are.
    We're in the position right now because we have allowed our 
domestic industry to atrophy, to be run out and then 
artificially manipulated down low enough so they are gone and 
now they are bringing it back up again. All the time in our 
Administration, we have our Secretary of Energy running around 
talking about how we can artificially get other people to do 
things they don't want to do. So we're going to have to face 
that.
    When you talk about nuclear energy, I see a difference out 
there now from 10 years ago when people were really hysterical 
about the use of nuclear energy. Now it has a good safety 
program, it's clean, it's efficient. You look at other 
countries in which 80 or 90 percent of their energy is nuclear 
energy. I think we may have to be looking very carefully at 
this in the near future.
    We have our first panel, which is Senator Jeff Sessions who 
is not here yet. I do want to accommodate him because he and I 
are on both committees working right now.
    Why don't we do this. Mr. Meserve if you and our four 
Commissioners would come to the table, we can have opening 
statements and then after our opening statements, I might ask 
if Senator Sessions is here if you would allow him to just sit 
down and make a few statements and you folks come back.
    Let's start with the opening statement. Chairman Meserve, 
again, I am looking forward to working with you in the capacity 
that you hold now. I welcome you to your first committee 
hearing.
    Why don't we use the stop, change, go lights here and try 
to hold your opening statement to about 5 minutes. Your entire 
statement will be made a part of the record. Without objection, 
I will enter Senator Bob Graham's statement as a part of the 
record.
    [The prepared statement of Senator Graham follows:]

  Statement of Hon. Bob Graham, U.S. Senator from the State of Florida

    Mr. Chairman, the U.S. Nuclear Regulatory Commission (NRC) plays a 
vital role in shaping our Nations electric energy production technology 
mix. Its mission of regulating the licensing and operation of 
commercial nuclear power reactors as well as the industrial use of 
nuclear materials and the transport, storage, and disposal of nuclear 
materials and waste is critical in our efforts to operate safe and 
efficient nuclear power plant facilities in the U.S. Nuclear power 
plants currently generate approximately 20 percent of the nation's 
electric energy. Our experience with nuclear power generation since our 
first commercial nuclear reactors went on line in the early 1960's 
shows that nuclear power electric generation in this country is an 
efficient, safe and clean source of electric energy. Western Europe and 
Japan share this view. France generates approximately 79 percent of its 
electricity from nuclear power; Belgium, 60 percent; Sweden, 42 
percent; Switzerland, 39 percent; Spain, 37 percent; Japan, 34 percent 
and the United Kingdom, 21 percent.
    Today the world is focused on reducing greenhouse gas emissions 
from coal, oil and gas fired power plants, and other fossil fuel fired 
boilers and equipment in response to concerns about global warming. 
Nuclear power plants produce virtually no greenhouse gas emissions. 
Therefore, the continued use of nuclear power as a substantial 
component of our Nations electric generation mix along with other major 
electric energy generating sources is a prudent course for the Nation 
to follow. However, no new nuclear power plants have been ordered in 
the U.S. since the late 1970's. Additionally, no new nuclear plants 
have commenced operation since the early 1990's. It is possible 
therefore that we may experience a situation in the not too distant 
future where a significant number of our current 103 commercial nuclear 
powered electric generating plants will have reached the end of their 
useful life with no new nuclear replacement plants coming on line. It 
is estimated that in a period of less than 15 years about one third of 
our nuclear plants may be retired. If this estimate is correct, coal, 
oil, or gas fired electric generating units are the most likely types 
of generating facilities to make up the bulk of this replacement 
generation capacity. Without nuclear power we will be increasing, not 
decreasing our greenhouse gas emissions. Concerns over global warming 
and our experience with the safe and efficient operation of our nuclear 
plants demand that we find a way to ensure an appropriate level of 
nuclear power generation in our Nation's future electric energy 
technology mix.
    I want to commend the NRC on its work in regulating the nuclear 
power industry in the U.S. and ask that it continue its ongoing efforts 
to ensure that the relicensing of nuclear powered generating plants is 
done as efficiently and rapidly as possible while remaining consistent 
with applicable laws, regulations and NRC requirements.
    Thank you, Mr. Chairman.

    Senator Inhofe. All of you will have any length of 
statement you want. We'd like to ask the four distinguished 
Commissioners to try to withhold their response to Mr. 
Meserve's opening statement to 2 or 3 minutes.
    Mr. Meserve, welcome.

 STATEMENT OF COMMISSIONER RICHARD MESERVE, CHAIRMAN, NUCLEAR 
 REGULATORY COMMISSION; ACCOMPANIED BY COMMISSIONER NILS DIAZ, 
    COMMISSIONER JEFFREY S. MERRIFIELD, COMMISSIONER EDWARD 
       McGAFFIGAN, JR., AND COMMISSIONER GRETA JOY DICUS

    Mr. Meserve. Mr. Chairman, Senator Voinovich, it is a 
pleasure to appear before you today with my fellow 
Commissioners to discuss the Nuclear Regulatory Commission's 
accomplishments, the challenges before us, our budget submittal 
and our legislative program.
    Let me first introduce my fellow Commissioners: Greta Joy 
Dicus, Nils J. Diaz, Edward McGaffigan, Jr. and Jeffrey S. 
Merrifield who join me here. All of us appreciate the interest 
of this subcommittee in our work.
    I last appeared before the Environment and Public Works 
Committee for my confirmation hearing. I told the committee at 
that time that in my view, the NRC was generally on the right 
track but needed to maintain momentum in its many initiatives. 
My experience over the past 4 months has confirmed this view.
    Let me turn first to our accomplishments. I will highlight 
just a few of the major areas that I know are of concern to 
this subcommittee. I understand that you have a continuing 
interest in the status of license renewal and you have a 
question you raised this morning.
    It should be noted that we have met or exceeded every 
milestone in our review of the Calvert Cliffs and the Oconee 
license renewal applications. The Calvert Cliffs license 
renewal is currently pending before the full Commission. The 
staff has recommended, based on its review of the safety and 
environmental issues, that the Commission approve the license 
renewal application. The Commission intends to reach a decision 
on this matter in April which is within 24 months after the 
application was received. The Oconee license renewal is 
similarly on track for Commission decision by July.
    Although we have processed these first renewal applications 
expeditiously, we have a major effort underway to look at the 
generic lessons learned from the license renewal process and to 
make improvements for future applicants.
    We also know that you were very interested in our ability 
to process license transfers expeditiously. I believe the NRC 
has an exemplary record in dealing with the complex licensing 
transfer cases that are coming before us. We were among the 
first regulators to analyze and act on the transfers of the 
Pilgrim, Three Mile Island Unit I and Clinton licenses. There 
are several other complex licensing transfer cases before us 
that arise from the restructuring of the industry. These cases 
sometimes require a significant expenditure of energy but we 
will make continuing efforts to assure timely resolution of 
these matters.
    We are also proud of the new reactor oversight process 
which is another issue on which you raised a question. We plan 
to use that process to inspect, assess and enforce regulations 
at nuclear reactors. Last year, we launched a pilot program 
involving 13 reactors at 9 sites and we learned a great deal 
from that effort.
    The results of the pilot program were recently presented to 
the Commission with a staff recommendation that we extend the 
new approach to the oversight of all of our operating reactors. 
The new approach has been endorsed by a broad spectrum of 
stakeholders and the initial implementation is to begin at all 
power plants in April 2000.
    We recognize, however, that this is a work in progress and 
we will have to make continuous adjustments, including training 
of and interaction with our staff.
    I also want to highlight our nuclear materials program for 
you. We have a very large number of materials-related 
initiatives underway. As with our reactor program, we are 
working and making our nuclear materials regulation more risk 
informed and flexible. For example, we are in the final steps 
of totally revising our regulations covering the medical use of 
byproduct material using risk insights together with other 
factors to establish requirements that better focus licensee 
and regulatory attention on issues commensurate with their 
importance to health and safety.
    We continue to prepare for a possible Department of Energy 
application for a high level waste repository at Yucca 
Mountain. In this endeavor, we proposed implementing 
regulations that we believe will serve to protect public 
health, safety and the environment. We recently provided our 
comments to DOE on its viability assessment, draft 
environmental impact statement and draft siting guidelines.
    We are also continuing our efforts in decommissioning 
various sites around the country, licensing of independent 
spent fuel storage facility installations, certification of dry 
casks, and issues associated with the transportation of spent 
fuel and radioactive material.
    Almost all of our initiatives, whether in the reactor, 
materials or waste programs raise difficult issues on which our 
stakeholders have widely differing views. In recent years, the 
Commission has broadened the scope and depth of our interaction 
with all stakeholders to the benefit of all.
    Let me turn now to our budget. To stay the course on the 
various initiatives we have underway, we obviously need 
resources to do the job. Our Commission has proposed a fiscal 
year 2001 budget of $488.1 million. This budget request 
represents approximately a 3.9 percent increase or about $18 
million over the fiscal year 2000 budget, but it is still the 
second lowest budget in the history of the agency in real 
terms.
    The number of employees at the agency continues to decline 
and our budget reflects almost a 20 percent reduction in staff 
since fiscal year 1993.
    The $18 million increase over our fiscal year 2000 budget 
is primarily for the pay raise that the President has 
authorized for Federal employees. Two charts reflecting a 
summary of our budget since fiscal year 1993 are attached to my 
written testimony and are displayed here on the easels.
    There is one feature of our budget submission that I know 
is of great interest to the subcommittee. As you know, the 
Commission has for years acknowledged that there is a 
legitimate fairness concern about the fees that are charged to 
our licensees. NRC licensees should not be charged fees for 
activities that are important to the agency's mission but which 
do not directly benefit them. Such activities constitute about 
10 percent of our budget.
    To address this concern, OMB has approved a graduated 
reduction of the percentage of our budget that must come from 
user fees. As you know, this is an approach that originated 
with this subcommittee last year.
    I would like to conclude very briefly by touching on our 
legislative program. S. 1627, as reported by the committee, 
included many of the provisions that we recommended to the 
committee last year. We deeply appreciate your support for 
these programs.
    There are a few additional provisions that we would 
respectfully request you to consider: clarification of our 
authority to deal with non-licensees who retain control over 
decommissioning funds; elimination of the provisions dealing 
with foreign ownership and removing and reviewing any ambiguity 
as to our authority to conduct informal hearings. These 
provisions are described in our full statement submitted for 
the record.
    Finally, I would note that the Commission introduced a 
provision in last year's request to clarify the status of NRC 
licensees who decommission their sites pursuant to our license 
termination rules. Our rule was promulgated using a public 
process. The rule is consistent with international standards 
and is based on sound, scientific research. The rule ensures 
adequate protection of groundwater.
    The provision which we suggest for your consideration would 
clarify that licensees who cleanup to our standard are not 
subject to CERCLA except in the rare event in which we or an 
Agreement State invite the EPA into the decommissioning to take 
advantage of CERCLA remedies. We are seeking to negotiate a 
Memorandum of Understanding with EPA on this point but if we 
fail, legislation would be the cleanest way to resolve the 
issue.
    I have tried to present some of our pressing issues and 
accomplishments and have requested your support for our budget 
and for our legislative initiatives. We stand ready to make 
further changes to improve our regulatory programs and we look 
forward to your support in our efforts to reach that goal.
    Thank you.
    Senator Inhofe. Thank you, Mr. Meserve.
    If any of the Commissioners would like to react--don't feel 
compelled to do so, but if you would like to?
    Mr. McGaffigan.
    Mr. McGaffigan. Mr. Chairman, we normally go in a seniority 
order but I have no remarks. I support the Chairman's testimony 
and look forward to questions.
    Senator Inhofe. Ms. Dicus.
    Ms. Dicus. Again, I think you're going to hear ditto, 
ditto, that the testimony we have presented, both the written 
testimony as well as the Chairman's oral testimony, is a 
consensus testimony that we all contributed to and we all agree 
with.
    The other point that I'd like to bring up, just to make you 
aware, is that I have the pleasure of serving as the 
Commission's representative to the National Association of Rate 
Utility Commissioners which are the public utility commissions 
of your States, the rate setting body.
    They met just this week and I testified before them on 
Monday and talked to them about Yucca Mountain issues from the 
NRC's perspective together with license renewal issues. I 
simply want to make you aware of two resolutions that NARUC has 
passed in the past year.
    The first was entitled, ``Resolution Regarding the Nuclear 
Regulatory Commission's Efforts to Improve the Regulatory 
Process.'' They support us in that regard and continue to 
encourage us to refine and revise our regulatory processes.
    The second was entitled, ``Resolution on Proposed Radiation 
Protection Standards for Yucca Mountain, Nevada,'' which 
encourages the EPA to adopt the NRC's proposed radiological 
standards for licensing Yucca Mountain.
    I did want to make you aware, if you were not, of those two 
resolutions. I appreciate the opportunity to be here to testify 
before you today.
    Thank you.
    Senator Inhofe. Thank you, Ms. Dicus.
    Mr. Diaz.
    Mr. Diaz. Mr. Chairman, I do appreciate the opportunity to 
testify with my colleagues today.
    I also wish to express my full support for the testimony 
presented by Chairman Meserve on behalf of the Commission. I 
believe that it is now time to consolidate our multiple 
initiatives over the last 3 years and I believe that we are 
working our way toward that end.
    I have a practitioner's comment on the broad area of risk 
informed regulation, an area that I believe should be properly 
defined as focusing attention and resources on what is more 
important to safety. Whether we use it for new reactor 
oversight, or for licensing, risk informed regulation is more 
an encompassing method than a probabalistic analysis.
    Risk informed regulation is supported, whatever we're doing 
with it, by a strong network of regulations, information flow, 
of deterministic results, regulatory and licensing experiences, 
and proven practices, enhanced, when appropriate, by 
probabalistic risk analysis. In this case, the whole is 
stronger than any of the parts.
    Regarding the major changes occurring in the industry, 
especially utility consolidation and mergers, I believe that 
addressing now the issues being brought forth by these changes 
in the industry will prepare us well for the immediate future.
    Thank you, sir.
    Senator Inhofe. Thank you, Mr. Diaz.
    Mr. Merrifield.
    Mr. Merrifield. Thank you, Mr. Chairman.
    I would also support the remarks of our Chairman, Mr. 
Meserve. I believe they do reflect the unified position of our 
Commission.
    A couple of things I would point out, you mentioned in one 
of your questions you wanted to ask us about the GAO report as 
it relates to the reviews of our staff. I think that it is a 
helpful report. Its survey pointed out that we do have to do 
enhancements to training, interacting and communicating with 
our staff. I think the Commission is committed to doing that.
    Our staff has a questioning attitude. As we move forward 
with a new inspection and oversight process, it is natural that 
they would question that as well and make sure that we have the 
highest level of accountability for our inspection and 
oversight program. So as it moves along, as they become more 
comfortable with that program, I think we will enhance our 
confidence, not only in ourselves, but our staff that we have 
an appropriate program.
    As part of that, we do want to enhance our training. One of 
the moves the Commission has recently made is an action to 
close our Technical Training Center, a small, 26-member 
training body that was located in Chattanooga, TN in 1980 for 
the purposes of conducting reactor simulator training for our 
staff. That facility was originally located there because of 
its proximity to TVA simulators that we utilized.
    The Commission has subsequently purchased four simulators. 
We believe now that it is more appropriate for those simulators 
and that staff to be located near our 1,800 member staff in 
Rockville. That is an action that is not supported by the 
Tennessee delegation. We would ask and seek the support of this 
committee to 
ensure that we have the ability to enhance our training and the 
ability to have the highest level of health and safety among 
our staff.
    The last point, you asked about how we are reacting 
relative to enhancing our Nation's energy security. I would 
point out we have, as of last month, approved the last of three 
designs that were submitted to us--the AP-600 design of 
Westinghouse for a new PWR reactor; we had previously signed 
off on the GE advanced boiling water reactor; and the 
Combustion Engineering System 80 Plus.
    So the Commission has acted as a whole in approving three 
new advanced nuclear reactor designs. Those are on the shelf 
and waiting for an order by a utility and a request for us to 
judge the individual license. So we have acted in that regard.
    Thank you.
    Senator Inhofe. Thank you, Mr. Merrifield.
    I'm going to inject a couple of questions I want to make 
sure we get in before something happens here. Senator Voinovich 
does have to go chair another committee. I'll turn it over to 
you after that, Senator Voinovich, for the questions you have, 
then we will go back to the regular order.
    The first question we had at the last hearing we had is 
probably appropriate for this hearing too, Mr. Meserve. You 
mentioned that you're meeting every milestone. Specifically, 
are you on track for finishing each license renewal application 
within the 36 months?
    Mr. Meserve. Yes, we are. We will be acting on the Calvert 
Cliffs application by April which means we will have completed 
that in 24 months.
    Senator Inhofe. It sounds like you're a little ahead of 
that schedule then?
    Mr. Meserve. Similarly with the Oconee application, we are 
on track to complete action by July which would similarly have 
us in well under the 30-month period. I believe that is also 
about 24 months.
    Senator Inhofe. Will you be able to keep up that pace? I'm 
thinking about the time when you might have 10 applications at 
one time. Will a bottleneck occur?
    Mr. Meserve. We have been trying to work with the nuclear 
industry to try to work out arrangements so that we can 
basically develop a queue of license renewal applications so 
that we don't have a whole series of them that have to be 
processed at one time. We've asked the industry to basically 
let us know 5 years in advance of the filing so that we can 
plan to be able to accommodate the applications that come in.
    Senator Inhofe. How does the concept of giving credit for 
an existing program come into effect when you're looking at 
this?
    Mr. Meserve. We examine a limited set of issues in the 
licensing renewal process, with a particular focus on those 
issues that are associated with the extension of the life of 
the reactor, so we are very concerned about aging issues and 
making sure that the plant can continue to operate safely for a 
more extended period.
    The focus of the relicensing activity is to make sure there 
are aging issues which have been addressed, there are 
maintenance programs that are appropriate in place to be able 
to handle the extended period, if there are analyses that were 
time limited in the original application, to make sure those 
are examined to make sure they are appropriate to allow 
continued operation.
    We have tried to focus the activity in relicensing on the 
issues that bear directly on the decision we are making, 
whether the extension of the license is appropriate and will 
provide adequate protection of health and safety.
    Senator Inhofe. Mr. Meserve, on the second panel, Mr. 
Adelman, who has already submitted his testimony, refers to the 
fact that ``The NRDC is opposed to the NRC proposed rule on the 
issue of metals recycling.'' I didn't know you had already 
proposed a rule.
    Mr. Meserve. We have not.
    Senator Inhofe. Then what is he referring to?
    Mr. Meserve. We have engaged in an interaction with the 
public on whether we should proceed with the development of a 
clearance rule, which is what we call the matter referred to by 
Mr. Adelman. In that process, we published an issues paper in 
the Federal Register from which we sought comments. We have 
engaged in four meetings in various parts of the country in 
order to get public reaction as to whether we should proceed 
with a rule in this area and if we do so, what its content 
should be.
    Staff is preparing an evaluation of all that information 
and will be submitting it to the Commission so that we can make 
a decision later this spring as to whether to proceed with the 
rulemaking in this area.
    Senator Inhofe. So right now the staff is gathering the 
information together so that you will then be able to come make 
a determination even if you're going to have a rule, not just 
necessarily what the rule is going to be?
    Mr. Meserve. That's correct.
    Senator Inhofe. We will ask Mr. Adelman that question.
    Senator Voinovich, I know you have to leave. Why don't you 
go ahead and take all the time you need.
    Senator Voinovich. I have actually two questions. The first 
deals with my statement I made and that is that nuclear energy 
accounts for practically 20 percent of our Nation's electrical 
use. Of this, USEC supplies 75 percent of the enriched uranium 
for our domestic needs, with the other 25 percent supplied from 
foreign enrichers. USEC also serves as the executive agent for 
the United States and the Russian Highly Enriched Uranium 
Program.
    Of USEC's share of the enriched uranium market, 
approximately half of the material the corporation sells is 
from the Russian HEU agreement. Therefore, one-half of our 
Nation's supply of enriched uranium is from foreign sources.
    What are the Commission's thoughts on the current reliance 
on foreign produced fuel for our nuclear energy needs? 
Basically, if a decision should be made to shut down USEC, 
we're not going to have any facility to enrich uranium. The 
question is what is your reaction to that?
    Mr. Meserve. We are obligated by the Congress in examining 
the certification of the USEC facilities to make an assessment 
as to whether the issuance of the certificate and the operation 
of the facility is sufficient to maintain a reliable and 
economical domestic source of enrichment services. I believe 
that reflects the Congress' judgment about the importance of 
our having domestic capability to provide enrichment services 
which obviously not only serve as an ingredient to producing 
fuel for nuclear power plants but also have defense purposes.
    I understand and the Commission would understand that the 
Congress has asked us to look at the viability of the USEC 
operations in order to assure that we have a domestic 
capability to provide enrichment services.
    Senator Voinovich. So the answer is that in the event that 
you'd have to pull the plug on USEC for some reason or other, 
we still need to have a domestic source of enriched uranium to 
take care of our domestic and military needs?
    Mr. Meserve. That's my understanding of why Congress wanted 
us to look at that. It is a kind of review we don't undertake 
in the nuclear power plant area. My understanding would be that 
Congress has asked us to examine this issue specifically 
because of the importance of maintaining a domestic capability.
    Senator Voinovich. I think it fits in with the other 
problem we're having right now and that is in terms of domestic 
oil supply. We kind of just ignored that and we're more reliant 
today than ever before on foreign oil, not only from a cost 
point of view but also now from a national security point of 
view if something would happen, particularly some of the people 
we're getting oil from aren't necessarily our best friends.
    The last thing has to do with your budget. Do you know what 
percentage of your budget right now is going for training?
    Mr. Meserve. I don't know the precise number. I'd be happy 
to submit that for the record. We do have a 26-person training 
facility, as Commissioner Merrifield indicated, in Chattanooga. 
That's all we have in Chattanooga, the training facility. We 
have wanted to bring those people to our headquarters in order 
to integrate the training that's now undertaken at Chattanooga 
with the training that also takes place at headquarters.
    We view this, as Commissioner Merrifield indicated, as an 
enormously important activity at a time when there is very 
significant change underway at the Nuclear Regulatory 
Commission. We have a need to make sure that our staff fully 
appreciates the new directions that we're taking. We think 
having that facility where the bulk of our employees are is the 
way to assure that the training is adequate.
    It also allows an interaction between the trainers and our 
technical staff at headquarters to make sure that there is a 
close linkage of the new directions in regulation with the 
training activities. That is going to be facilitated if we can 
have these operations co-located.
    Senator Voinovich. I'd be interested in comparisons in 
terms of the money you're spending on training. The hearing I'm 
going to be chairing in a half hour or so is on the human 
capital in the next century. One of the things I have observed, 
looking at the budgets of various Federal agencies, is that 
over the years, they have really cut back on training at a time 
when training is more important than ever before. So I'd be 
interested in those numbers.
    Mr. Meserve. I'd be happy to provide the figures. We share 
your view that training, for a technical agency like ours with 
a wide range of responsibilities at a time when we're 
undergoing a lot of change, is an essential ingredient for our 
staff. We need to have an effective training system and we're 
dedicated to trying to develop that. The NRC plans to spend 
about $10.3 million--more than 2 percent of its fiscal year 
2001 budget request--for training. Note that this estimate does 
not include the cost of the NRC staff 's time (salaries) for 
those who are attending training.
    The NRC's fiscal year 2001 budget request is $488.1 
million.
    Senator Inhofe. I think perhaps the five of you and Mr. 
Meserve, your background, would equip you best to answer the 
question. On the next panel they are going to be talking about 
metals recycling, the level of radiation that would be found in 
materials.
    I'd like to ask if you could explain what that level would 
be and how much of a public health threat that poses?
    Mr. Meserve. We haven't undertaken development of a rule, 
so there's no basic number that's on the table that we have 
introduced as a proposed rule.
    The objective that we would undertake, if we were to 
proceed with a rule, is to select a number where there was 
complete assurance that the public health and safety would be 
protected in any reasonable use of the material.
    The numbers, for example, that people have talked about as 
being an appropriate level for such limit is something on the 
order of 1 mr, a unit of radiation. By way of background, let 
me say that we all live in a world in which we are all exposed 
to radiation.
    Senator Inhofe. I was going to say that. I keep hearing 
people talk about zero and that doesn't exist, the granite in 
the buildings here.
    Mr. Meserve. But we all are exposed on average to something 
on the order of 300 mr, just by what nature provides us. If you 
happen to live in a place like Denver, you're exposed to higher 
levels, probably 40 or 50 mr higher as a result of the fact 
that the rock there has higher uranium content naturally and 
you're at higher elevations. You have more exposure to cosmic 
rays.
    The variability in natural background is much, much larger 
than 1 mr. In fact, the exposure in the United States, I 
understand, that just comes from nature is in the order of 
magnitude of 100 mr or so at the low range to as high as 1,000 
mr.
    The number that people have been talking about as a 
possibility for a clearance rule is 1 mr, which is way below 
the variability in the natural background.
    Senator Voinovich. Mr. Chairman, I'd just like to make one 
comment just to put things in perspective.
    I visited an outfit in Ashtabula, OH, RMI, who extruded 
these rods for nuclear reactors and they are decommissioning 
the plant. Their cutting that place up into little pieces. I 
asked the people running the plant, how risky is this material 
and what are you doing with it. They said, we're packaging it 
up and sending it out to Nevada to go into a dump out there.
    I looked at this and said how much radiation would I pick 
up from that if I had it around me? They said, you could have 
it on your front porch and you'd get less radiation from that 
than you would from flying from Washington out to Denver.
    The reason I'm mentioning this is that there are some 
people out there that think there is some kind of laxness in 
getting rid of some of this stuff and from my perspective, I 
thought they were going way overboard in terms of trying to 
make sure none of this metal was going to get back into the 
supply out in the marketplace.
    My reaction would be that anyone that raises the issue 
about some of this stuff, plutonium, uranium, is out there 
somewhere, I don't give it that much credence, especially after 
seeing what they're doing with the material. Every piece of 
this place is being chopped up and they're sending it out 
there.
    Mr. Meserve. May I comment, Mr. Chairman, on that?
    Senator Inhofe. Yes, of course.
    Mr. Meserve. The dose one would get in a cross country 
flight is about 5 mr so the clearance approach that people have 
viewed as a possibility is much less than that.
    I think there is another important element of this problem. 
We are not dealing just with materials that might be released 
from a site to go into commerce and could be recycled in 
consumer products. The clearance rule would deal with any 
material that would be leaving a licensed site. The question 
would be, are the levels low enough that they can be handled 
the way non-radioactive materials would be handled.
    One of the consequences of the approach that we're talking 
about would be allowing materials which pose no health or 
safety risk to leave the site and to be disposed of in the 
normal way. So if you have contaminated dirt, for example, or 
contaminated materials that have very low levels of 
contamination associated with them, so low that they don't pose 
a health and safety risk--you would be allowed to dispose of 
them without using the expensive and valuable space in 
radioactive waste disposal facilities.
    We've been trying to handle these issues as they've arisen 
on a case by case basis. We've thought about having an approach 
that would be a standardized approach, that would be a clear 
rule everyone would understand.
    Mr. Diaz. I just want to say that the undertaking for this 
analysis that we're doing is just a clear expression of the 
concern the Commission has for radiological protection. It is 
not to actually ignore it. On the contrary, it's to bring it to 
the forefront and deal with it in the best manner that we can 
to protect public health and safety.
    Senator Inhofe. And at the same time, do it with sound 
science and honesty where the people know and are not going to 
be scared by something that doesn't exist.
    I'd like now to ask Senator Bennett, who has to leave at 10 
o'clock, to go ahead and take whatever time he'd like.
    Senator Bennett. Thank you very much, Mr. Chairman.
    I'd say to the Senator from Ohio I think they're shipping 
it to Utah, not Nevada.
    Mr. Chairman, I want to congratulate you on your initiative 
and leadership in holding these hearings. I understand the 
process began about 18 months ago and I think it's the proper, 
appropriate activity on the part of the committee because it 
gives the agency someone to report to, a benchmark to work 
toward.
    I remember President Eisenhower used to say that areas that 
did not get inspected regularly tended to deteriorate. I'm not 
suggesting, Mr. Meserve, that your agency in any way was 
deteriorating but I do think the inspection the Chairman has 
initiated is something we benefit from and ultimately you too.
    I have an issue that I've raised with Chairman Meserve in 
the form of a letter. I think perhaps as an indication of the 
value of these hearings, I got an answer to that letter last 
night.
    [Laughter.]
    Senator Bennett. So I am in a position to thank him for 
that and tell him how grateful I am.
    Senator Inhofe. And we received our 5-year plan last week.
    Mr. Meserve. I apologize to both of you.
    Senator Bennett. I understand that you'd prefer to have me 
raise the issue regarding FSRAP and its 1978, pre-1978, post-
1978 issue at the full committee hearings proposed in April, so 
I will not pursue that in any detail today.
    I do want to thank Chairman Meserve for his letter that did 
respond to some of the questions I raised. We will follow up at 
the full committee hearing. Our goal is exactly the same as the 
one the Chairman has outlined, sound science, an intelligent 
way to protect health and safety, moving away from arbitrary 
lines that get drawn that maybe don't have any scientific 
validity.
    Not being a lawyer, and I recognize Senator Sessions is one 
of the premiere lawyers in this body, sometimes I get a little 
frustrated by the artificial nature of arbitrary decisions that 
come down with respect to the law. That's why I want to pursue 
this 1978 date because I don't think it has any validity in 
science. I think it is a fairly arbitrary situation.
    I do thank the Chairman for his response and this Chairman 
for keeping the opportunity alive for this kind of exchange and 
this Chairman for his response on the issue. I look forward to 
a more complete discussion of it in the full committee 
hearings.
    That is really all I think I need to take the committee's 
time for this morning.
    Senator Inhofe. Any response to the comments by Senator 
Bennett?
    Mr. Meserve. We would welcome the opportunity to discuss 
the issue with you.
    Senator Inhofe. We're embarking upon the reauthorization of 
the Price Anderson Act. Is there anything we should 
particularly be looking at right now or be aware of as we start 
into this process?
    Mr. Meserve. The Commission submitted a report on the 
reauthorization of Price Anderson in 1998 which urged its 
reauthorization and included some relatively minor 
recommendations for its reauthorization. The Commission still 
stands behind that report.
    For example, there was a suggestion that the annual 
retrospective premium, which is one of the layers of basic 
insurance provided through the Price Anderson Act, might be 
raised from $10 to $20 million. In short, there are relatively 
minor changes that the Commission has proposed.
    Senator Inhofe. We're going to go to our first panel that 
was on our schedule but I feel we have kind of shorted some of 
the Commissioners. If there are any of the four Commissioners 
who have something they feel should be expressed to this panel, 
this would be the opportunity to do that.
    Mr. McGaffigan. Mr. Chairman, I might just pick up on one 
point that Senator Bennett made about the artificial nature of 
some of what we do.
    One of the big artificial distinctions--and you mentioned 
it as well, Mr. Chairman--is the distinction between the 
material that we deal with, Atomic Energy Act material, and the 
rest of radioactive material. Some day, and I don't think 
today's the day, looking at these two sets of material 
comprehensively would be a good thing because we regulate 
Atomic Energy Act material, EPA has the rest and really can set 
generally applicable regulations that apply to us as well.
    The suggestion I'm making is that accelerator produced 
material, naturally occurring material, technologically 
enhanced naturally occurring material, all of that is treated 
quite differently.
    I come to this business from the Armed Services Committee 
3\1/2\ years ago and there is no greater frustration than all 
of the ways we have parsed radioactive material over the last 
50 years. The lawyers have done it, Senator Bennett, not the 
scientists.
    Senator Inhofe. Thank you, Mr. McGaffigan.
    I want to mention also that I know you have been 
renominated by the President for another term. We're looking 
forward to getting you confirmed as quickly as possible.
    Mr. McGaffigan. Thank you, sir.
    Senator Sessions. Mr. Chairman, could I just say for this 
panel, I remember you called the first NRC oversight hearing 
where I was a member of this committee and my interest was 
captured for this subject. I felt the NRC had really stagnated, 
that it was time for us to reevaluate it, and we had no 
prospect of bringing any new nuclear power plants on-line at 
all. I wondered if they were expected just to disappear because 
they will all be gone before long.
    I thought the employment level at the NRC may have been 
appropriate back when we were building nuclear plants but all 
the nuclear plants today are mature and have been regulated for 
quite a number of years, and no new ones are under 
construction. I felt it was time to really shake up things a 
bit.
    I thought, pleasantly, that maybe the Board also was coming 
to the same conclusions and that your leadership affirmed them 
and gave them some impetus to follow through with some changes. 
I believe some positive steps have been made.
    I think there is more that perhaps can be done. I think if 
this were a division of United States of America, Inc., they 
probably would want a little more downsizing, a little more 
reorganization, a little leaner and more effective regulation 
than we have today but you're moving in the right direction. I 
do think that is a positive step. I just wanted to share that.
    Senator Inhofe. Thank you, Senator Sessions. I appreciate 
that.
    Any other comments? Yes, Ms. Dicus?
    Ms. Dicus. If I could, please, I'd like to follow 
Commissioner McGaffigan's comments. Something that I frequently 
say in speeches that I give around the Nation and 
internationally. We do have a mishmash of radiation standards 
in this country across the Federal family and in some cases, 
across the States. It is confusing to the public, it's 
confusing to the Federal agencies, and I keep wishing and 
hoping that there is a point in time that we can standardize 
our radiation protection standards and that we can settle on a 
particular standard that we all adhere to. So I continue to 
push for that level.
    The Chairman was talking about how flying across the 
country is 5 mr and where is the proper standard we should have 
for protection of the public health and safety? What is the 
proper thing to do if we decide to go forth with a clearance 
rule? I would like to see some standardization of our 
standards.
    Senator Sessions. When you consider risk, does anybody ever 
consider the risks of alternatives to nuclear energy, such as 
the increased health costs related to coal-fired plants and 
higher levels of pollution? How about risks to coal miners, or 
risks related to truck wrecks, train wrecks and all those 
things that come from relying on fossil fuels? Life is a 
constant balancing act between risks and benefits, between 
profits and losses. Sometimes we seem to judge nuclear energy 
too harshly in terms of risk and environmental damage. It's 
environmentally friendly and has demonstrated that it is the 
lowest risk energy source by far.
    I would like to think that we could develop some policies 
that would get us off this path to the end of nuclear power in 
America which is where we are headed unless something changes.
    Senator Inhofe. Senator Sessions, in our opening statement, 
I addressed that same thing. People don't consider the 
alternatives and in terms of safety, cleanliness, availability 
cost, it's something we need to look at.
    Any other comments?
    Mr. Diaz. Just an exclamation point to what my fellow 
Commissioner is said. Radiological protection is the bottom 
line of what we do. We try to do it well, and we'd like to do 
it better. We urge your support for the Commission initiatives.
    Senator Inhofe. Thank you, Mr. Diaz.
    Mr. Merrifield.
    Mr. Merrifield. As a follow up to the issue of the 
clearance rule that the Chairman talked about, the issue of 
science and sound science ultimately is a bottom line for us. 
We don't look at this in a vacuum, however. We can't deal with 
simply what is going on in the United States. Our European 
counterparts, for example, the EU, is going to a 1 mr standard, 
so there are materials that will enter into commerce that we're 
going to have to grapple with maybe coming from Europe that may 
have level of material, and are we, in a uniform sense with 
international trading issues, going to grapple with that.
    The other issue that we have to deal with is stakeholder 
concerns. There is obviously and has been for a long time, a 
great deal of concern on the part of a lot of American people 
about anything radioactive. So as part of our whole stakeholder 
process, we want to get those comments in, we want to 
understand what the public has to say about that so we can 
include that view in the direction in which we go.
    I don't want to leave the impression that we've gone off 
one way and are just going to deal with the science. We also 
want to make sure we have an understanding of stakeholder's 
concerns, whether that's the general public or whether that's 
companies, and get their views in there as well.
    Senator Inhofe. Thank you, Mr. Merrifield.
    We will, at this time, excuse this panel. Mr. Meserve, do 
you mind staying and participating in the second panel.
    Before introducing the first panel for a presentation which 
you may make up here if you like instead of going to the table, 
that we do miss you on this committee. I'd like to have you 
reconsider and come back.
    Senator Voinovich. Even though you are a lawyer.
    Senator Inhofe. One lawyer is not so bad.
    We will recognize Senator Sessions at this time.

         STATEMENT OF HON. JEFF SESSIONS, U.S. SENATOR 
                   FROM THE STATE OF ALABAMA

    Senator Sessions. It was a wonderful experience for me to 
serve on this committee. I enjoyed every minute. I enjoyed the 
issues and I believe we should act with a sense of urgency in 
regard to energy in America. We are seeing an extraordinary 
rise in prices of gasoline and fuel oil. It indicates to me 
that we are not thinking very clearly about our energy policy.
    Energy costs and pollution are fundamental factors that 
ought to be evaluated as part of establishing an energy policy. 
Nuclear power clearly plays a critical role in our energy 
supply. It provides over 20 percent of our electric power; it's 
one of the cleanest and safest ways to produce power. While the 
United States experienced a boom of new nuclear power plants in 
the 1960's and 1970's, the last plant was licensed in 1974. 
Many of those plants are reaching the end of their life span 
today.
    During the 2 years I served on this committee, I learned a 
great deal about our efforts to combat air pollution. The 
committee focused on the need to meet our Nation's air quality 
and energy needs.
    Under the Kyoto greenhouse gas agreement, which the Senate 
refused to consider but the Vice President asked us to ratify, 
we were to commit to a goal of reaching by 2012 emission levels 
equal to 7 percent below 1990 levels.
    What has happened since 1990 is our greenhouse gas 
emissions have increased 8 percent. In effect, between now and 
2012, if we were to meet the Kyoto accord standards, we would 
have to reduce emissions by over 15 percent below today's 
emission level.
    To further compound the problem, the Energy Information 
Agency projects that our demands for energy will increase by 30 
percent between now and 2012.
    There has also been a very hostile approach by this 
Administration to the production of natural gas. The Vice 
President has said he believes in no offshore drilling or 
additional in the Rockies where the great reserves of natural 
gas are. Natural gas, next to nuclear energy, is by far the 
cleanest burning fuel that we have.
    Natural gas-fired electric plants are the cleanest form of 
non-nuclear electricity production. Many utilities are going to 
natural gas, but if we shut off our supply in the Gulf, if we 
continue to block our drilling abilities in the Rocky Mountain 
States and shut off the Alaska reserves, then we're going to be 
faced with a serious energy supply dilemma, even before trying 
to meet Kyoto's goals.
    Energy involves cost, pollution and resources. I sincerely 
believe we may be entering a crisis period today. I think it is 
insanity for us to believe that we can meet our energy demands 
without nuclear power. I don't believe I'm alone in this 
position. Members of the Administration--even though the 
policies of this Administration have not been favorable to 
nuclear energy. In fact, I believe they have been hostile to 
nuclear energy. Many of its members have agreed with me.
    In 1998 Under Secretary of State Stuart Eisenstadt 
remarked:

    I believe very firmly that nuclear has to be a significant 
part of our energy future and a large part of the western world 
if we're going to meet emission reduction targets. Those who 
think we can accomplish these goals without a significant 
nuclear industry are simply mistaken.

    I agree.
    In March 1999, the U.S. Ambassador to the International 
Nuclear Association, John Rich, at the North Atlantic Assembly 
made his speech. I happened to be there and heard it. He made a 
clear analysis of all our choices facing us and said, ``Nuclear 
power provided the only opportunity for us to meet energy 
demands and pollution clean air demands.'' He concluded, ``The 
reality is that of all energy forms capable of meeting the 
world's expanding needs, nuclear power yields the least and 
most easily managed waste.'' That is so obvious as to be 
without dispute.
    The idea that a great nation can't take nuclear waste and 
deliver it out to a desert in Nevada and plant it underground 
where it is no threat to anybody is really remarkable to me. It 
presents no threat to anyone. It's just been irrational to me 
to see the debate that has taken place on the floor of the 
Senate about people who would oppose the safe disposal of 
nuclear waste and find one excuse after another to not do what 
we plainly ought to do. It is stunning to me.
    In 1993, Pulitzer Prize winner Richard Rhodes wrote in his 
book ``Nuclear Renewal'' that:

    Electricity from nuclear fission continues to be the most 
comprehensive source of energy available to meet growing U.S. 
demand, the cleanest and safest of all major sources.

    Many of the problems which have hindered development and 
increased use of nuclear power in the United States have not 
risen from safety concerns or inherent problems with the use of 
technology, but from excessive regulations and high economic 
risk associated with licensing and bringing a new plant on 
line.
    In addition, plunging fossil fuel prices in the late 1970's 
and afterwards made nuclear power less economically feasible. 
At times there seems to have been an irrational hostility 
toward nuclear power. Some of that resulted from actions in 
Congress and otherwise, forcing the NRC to put excessive 
regulations on our nuclear industry to the point of 
micromanagement.
    As I said earlier, I do believe we are moving away from 
that and I believe we can do better. In the long run, nuclear 
energy must remain a significant part of our energy mix. 
Between 1973 and 1997, nuclear generation avoided the emission 
into the atmosphere of 82.2 million tons of sulfur dioxide and 
more than 37 million tons of nitrogen which would have been 
released by fossil fuel plants producing the same amount of 
electricity.
    In 1997 alone, emissions of sulfur dioxide would have been 
about 5 million tons higher and emissions of nitrogen oxides 
2.4 million tons higher had the electricity been generated by 
fossil fuel rather than nuclear. As testimony before this 
committee has shown, the impact of these emissions would have 
had significant adverse effect on both environment and human 
health.
    Some believe that nuclear power is dangerous and presents 
unacceptable risks. France obviously does not believe that. 
Today, 60 percent of their power is nuclear power and it is 
growing around the world.
    To put the idea of risk in context, a physicist, Dr. 
Bernard Cohen conducted a detailed study in 1990 entitled, 
``The Nuclear Energy Option.'' It carefully examined the risk 
associated with nuclear power. He basis his analysis on two 
studies, ``The Reactor Safety Study'' done by the NRC in 1975 
and a study conducted by the Union of Concerned Scientists 
which I think is less scientifically based but is a study 
worthy of examination.
    Dr. Cohen states,

    According to The Reactor Safety Study the risk of reactor 
accidents in the United States would reduce each American's 
life expectancy by .12 of 1 day or 18 minutes.

    I don't know how these scientist can calculate these things 
but they made a serious effort at doing this.
    The Union of Concerned Scientists, who have been hostile to 
nuclear power, say it would ``reduce life by 1.5 days.'' What 
does that mean? It goes on to say:

    Since our loss of life expectancy of being killed by any 
type of accident is now 400 days, the risk of using nuclear 
power would increase that number by .003 of 1 percent.''

    He goes on to conclude:

    According to the best estimate of established scientists, 
having a large nuclear power program in the United States would 
give the same risk to average Americans as a regular smoker 
indulging in one extra cigarette every 15 years, as an 
overweight person increasing his or her body weight by .12 of 1 
ounce and is less risky than switching from a mid-size to a 
small car.

    Clearly the risks associated with nuclear power are 
manageable and far less risky than many other forms of 
conventional electricity generation--coal, natural gases 
pipelines, oil wells--those things we know how to do with great 
skill but still they have more risk historically than nuclear 
power.
    With NRC's renewed focus on minimizing the risk of nuclear 
power generation, it is possible to make generation of nuclear 
power even safer. I do appreciate what you are doing. I do 
appreciate your commitment to real safety and real risk and not 
just micromanagement.
    Although high costs currently prevent new plants from being 
brought on line, we do have virtually complete plants across 
the Nation which we might economically be able to bring on 
line. One plant in my State, the Belafonte Nuclear Plant in 
Scottsboro, is over 85 percent complete. When you go in it, it 
looks like you could turn a switch and it would run. Even 
though this plant has the ability to significantly reduce air 
pollution, fear of NRC regulations adds to the already high 
economic risk and contributes to their decision not to step 
forward at this time.
    I know and believe the NRC would do its best to analyze 
that plant effectively. I just have to say when those people 
are sitting down at TVA, the Tennessee Valley Authority, and 
deciding whether to bring it on, they are concerned that they 
could get in the midst of it and have $1 billion or more added 
because of unnecessary regulation.
    I'd just like to take a moment to recognize a particular 
nuclear power plant in my State which I think exemplifies the 
way to safely operate a nuclear facility. Last week, TVA's 
Browns Ferry nuclear plant set a record for operating a boiling 
water reactor for 500 consecutive days without a single 
shutdown. This is a significant achievement and one for which 
the plant employees, the NRC and the entire U.S. nuclear 
industry should be proud.
    I've also seen the statistics and I think members of the 
Board would agree that every plant in America seems to be 
operating better now. All plants are having much better safety 
records, they're working out the bugs, they have staffs trained 
to the level at which they need to be and we are operating at 
much safer levels than before and operating with much fewer 
shutdowns.
    I believe this Commission has made a significant 
improvement in carrying out its regulatory responsibilities 
since our first oversight hearings in July 1998 and February 
1999. Moving regulatory focus away from micromanagement and 
toward risk informed and performance-based regulations appears 
to have helped both operators and regulators to focus their 
efforts on safety.
    I am hopeful the NRC will continue its reforms and continue 
to ensure the safety of our nuclear power program while at the 
same time striving to eliminate unnecessary costs and to see 
what we can do to get this industry back on its feet again to 
expand and construct new plants.
    Mr. Chairman, during one of our previous hearings, you 
correctly pointed out that the NRC could shutdown the nuclear 
program in the United States, it had that capacity. If that 
happened, we'd lose 20 percent of our electricity. The 
potential health and environmental impacts of such a scenario 
would be staggering.
    Thank you for giving me the chance to come back to this 
committee, to talk about an issue about which I care deeply. 
Thank you for your leadership in heightening our awareness of 
the need to do a better job of managing our nuclear power 
industry.
    We don't want to kill it off, we don't want to be the only 
nation in the world that does not have any prospect of building 
a new nuclear power plant. We cannot sit idly by while plant 
after plant's life span ends and they have to be closed. To do 
so would be both irresponsible and tragic.
    Thank you again.
    Senator Inhofe. Thank you, Senator Sessions. Again, I 
repeat, I miss you on this committee.
    You started off talking about some of the things in the 
Kyoto Treaty and just for your information, I would like to 
have had you on this committee when we had a hearing earlier 
this year talking about the fact that, ``Yes, we would like to 
have the Administration submit that for ratification so we know 
what would happen if it comes to the Senate.'' Instead, we were 
trying to analyze the number of things, executive orders and 
everything else where they are actually trying to implement 
this thing without authority and circumventing us. So, we miss 
you on the committee.
    Senator Sessions. I would just say thank you for those 
comments and would point that when you shut off lands for oil 
and gas production, when you clamp down on nuclear power and 
you enhance substantially clean air regulations without 
providing a source of energy, then you're going to have what 
we're having today, an extraordinary increase in the cost of 
energy.
    We don't have a good policy now as a nation and we, as a 
Congress, are going to have to participate in helping to 
establish one.
    Senator Inhofe. Are you suggesting that the most advanced 
industrial nation in the history of civilization can't run on 
windmills?
    Senator Sessions. That is exactly right. In fact, President 
Clinton's appointee, Ambassador Rich, talked about those issues 
quite directly and honestly. He said at this time there is no 
way these alternative sources of energy can come close to 
meeting our needs. He pointed out that the world needs 
electricity. In areas of the world where electricity is readily 
available, life span is almost twice what it is when not 
available.
    You care about environment and human life. Production of 
power improves the quality of life, and increased the longevity 
of life and the health of the world we care about. We need to 
figure out ways to increase our energy and not cut back on it.
    Senator Inhofe. Thank you, Senator Sessions.
    I'd ask now that our second panel come to the table. The 
panel consists of Mr. Ralph Beedle, vice president and chief 
nuclear officer, NEI; Ms. Gary Jones, Associate Director of 
Energy, Resources and Science Issues, U.S. GAO; Mr. David 
Adelman, Project Attorney, Nuclear Program, National Resources 
Defense Council; and Mr. William Kennedy, Health Physics 
Society. We had asked the chairman of the NRC also to join us 
at this table, not for opening remarks but just for responses 
if called upon.
    We will start with Mr. Ralph Beedle.

  STATEMENT OF RALPH BEEDLE, VICE PRESIDENT AND CHIEF NUCLEAR 
               OFFICER, NUCLEAR ENERGY INSTITUTE

    Mr. Beedle. Good morning, Mr. Chairman. Thank you very much 
and we appreciate the opportunity to be here this morning.
    I am the senior vice president and chief nuclear officer of 
the Nuclear Energy Institute. The Institute represents the 
nuclear industry on public policy issues, including Federal 
regulations that apply to the Nation's 103 operating nuclear 
plants which produce nearly 20 percent of this Nation's 
electricity.
    I want to thank you, Chairman Inhofe, for your continued 
leader-
ship and the subcommittee for its continued oversight of the 
regulatory process for the commercial nuclear industry. This is 
particularly important at this time as Congress and 
policymakers are 
beginning to once again recognize the important role that 
nuclear energy plays in meeting our Nation's electricity 
demand, as well as our goal of improving our air quality.
    Nuclear energy is our Nation's second largest source of 
electricity and accounts for two-thirds of all emission-free 
electricity produced in the United States. It is and has been 
for the last three decades a significant, yet silent partner in 
Clean Air Act compliance.
    In 1999, the nuclear energy industry enjoyed a record year 
of safety and production. Last year, our plants operated a 
record efficiency of almost 87 percent, a 9 percent increase 
over 1998. This increase represents enough electricity to serve 
about 5 million households.
    I'm also pleased to report that our nuclear plants have 
been operating with excellent safety levels. The industry's 
commitment to safety is evident in performance indicators 
compiled by both the NRC and the industry.
    This report by the World Association of Nuclear Operators 
released this month summarizes the record safety performance of 
the nuclear plants in the United States. It is attached to my 
written testimony and reports that we are setting record levels 
of safety for our workers as well as the American public.
    The industry's outstanding safety record has set the stage 
for the NRC's transition to a new nuclear power plant oversight 
process. This process will focus the attention of the industry 
and the Commission's inspectors on those areas of the plant 
that are most important to safety. NEI supports this process 
and urges the Congress to support it as well.
    I would like to make just a few comments regarding the 
recent GAO report. Although that report included some findings 
that are of concern to each of us, it is important that the 
subcommittee take note of one important conclusion. That is by 
a 2 to 1 margin, the NRC staff believes that a transition to a 
regulatory process that incorporates risk insights will improve 
nuclear plant safety.
    I can tell you that from my experience as the Chief Nuclear 
Officer at a large utility that there is skepticism within the 
staff whenever you embark on a major transition. Although some 
of the staff concerns were addressed in the pilot program, I'm 
convinced the GAO report provides two clues to the NRC in their 
planning and in their training that would enhance their ability 
to make changes.
    There is still a need for better long range strategic 
planning and more training by the agency as it makes this 
significant transition to a new oversight process. The NRC 
needs to improve in both of these areas so that the agency 
staff will be fully prepared for the planned changes.
    NEI has previously testified before this committee about 
the need for the NRC to adopt a comprehensive, 5-year strategic 
plan. The NRC just last week released a draft of the 5-year 
strategic plan for public comment. Earlier this week, NRC 
released the five-five planning information document which 
incorporates resource projections based on goals and 
strategies.
    In estimating workload and identifying planning 
assumptions, this new planning document provides an improvement 
and points toward a more functional long-range planning 
document.
    We remain concerned about two budgeting issues. First, the 
NRC continues to unfairly bill 100 percent of its operating 
costs to licensees. Through this subcommittee's effort and 
leadership, we hope to receive some relief starting next year. 
I'm pleased that the NRC is supporting this long-term solution 
to this problem as well.
    Second, most of the NRC user fees are collected as a 
generic assessment levied against all licensees. This creates, 
in effect, a miscellaneous category to describe nearly 80 
percent of the NRC's budget. The lack of transparency in the 
fee structure does not provide the NRC, the Congress, the 
industry or the American public with budget information 
necessary to examine that process.
    The industry strongly encourages this subcommittee and the 
Congress to continue its oversight and to support the NRC's 
regulatory reform and the transition to safe focused regulatory 
oversight. This new oversight process is promising and we look 
forward to industrywide application of the program this April.
    I would appreciate the opportunity to return before this 
committee and tell you about the progress the industry is 
making when the 107th Congress convenes next year.
    Thank you, Mr. Chairman. This concludes my remarks.
    Senator Inhofe. Thank you, Mr. Beedle.
    Ms. Jones.

     STATEMENT OF MS. GARY L. JONES, ASSOCIATE DIRECTOR OF 
        ENERGY, RESOURCES, AND SCIENCE ISSUES, GENERAL 
                       ACCOUNTING OFFICE

    Ms. Jones. Thank you, Mr. Chairman. We are pleased to be 
here today to discuss the results of our survey of NRC staff on 
the move to a risk-informed regulatory approach, the status of 
NRC's efforts to develop a strategy to implement this approach, 
and the disagreement between NRC and EPA over radiation 
standards.
    First, let me address the results of our survey. It was 
intended to take the pulse of NRC staff on issues related to 
moving to risk-informed regulation at a particular point in 
time. The survey was conducted in August and September of last 
year and 68 percent of the almost 1,600 staff we surveyed 
responded.
    Our survey results show that the vast majority of NRC staff 
feel personally responsible for the quality of their work and 
believe their work contributes to protecting public health and 
safety. They also generally believe that NRC management is 
supportive of their public health and safety efforts.
    With respect to NRC's efforts to change its regulatory 
approach, however, the staff expressed mixed views. A large 
number of NRC staff do not believe that management is receptive 
of leading the change process or involving them in the changes 
being made. Almost half the staff that responded to the survey 
said a risk-
informed, regulatory approach could be effective but only about 
a quarter believe that NRC staff have bought into the process.
    In addition, many staff expressed concern about the new 
risk-
informed oversight process to assess the overall performance of 
nuclear power plants. For example, 60 percent of the staff that 
responded to the questions about the oversight process agree or 
strongly agree that the process would reduce safety margins at 
nuclear power plants.
    More recently, NRC surveyed 94 regional office staff at the 
conclusion of the pilot for the new oversight process. The 
survey results showed that NRC staff expressed very favorable 
views about the training that NRC has provided about the new 
oversight process and the communications with the public.
    NRC's results also showed that the staff was not optimistic 
about some specific elements of the new process. For example, 
70 percent of NRC staff who expressed an opinion do not believe 
the process would identify declining safety performance. In 
addition, about the same percent do not believe that 
performance indicators would adequately alert NRC to declining 
safety performance.
    I'd like to briefly discuss the status of NRC's development 
of a comprehensive strategy for moving to risk-informed 
regulation. NRC staff expect to provide the Commission with a 
draft strategy, which they are calling an implementation plan, 
on March 10, 2000.
    In January, NRC staff provided the Commission an outline of 
the proposed plan. The outline mentions many of the issues that 
we raised in previous reports and testimony--the need for 
goals, objectives, performance measures, milestones, training 
of staff, and using this document as a management and 
communication tool.
    Finally, let me say a few words about the disagreement 
between NRC and EPA over acceptable radiation levels for 
nuclear facilities. This disagreement could increase the cost 
to decommission a nuclear power plant and to develop a proposed 
repository for the plant's high-level wastes at Yucca Mountain.
    Although EPA has authority to establish a standard for 
residual radiation at nuclear power plants, it has not done so. 
Utilities are using a standard developed by NRC that EPA 
believes is not restrictive enough. Utilities are concerned 
that they may ultimately have to use a more restrictive EPA 
standard, which would increase their decommissioning costs.
    EPA has proposed a radiation standard to protect public 
health and safety at Yucca Mountain. However, NRC, NEI, the 
National Academy of Sciences and others have raised concerns 
about the proposed standard.
    In 1994, we recommended that NRC and EPA work out their 
differences. While we understand a Memorandum of Understanding 
is under development right now, 6 years later, a stalemate 
seems to exist.
    Thank you and we'd be happy to respond to questions.
    Senator Inhofe. Thank you, Ms. Jones.
    Mr. Adelman.

STATEMENT OF DAVID ADELMAN, PROJECT ATTORNEY, NUCLEAR PROGRAMS, 
               NATIONAL RESOURCE DEFENSE COUNCIL

    Mr. Adelman. First, I want to thank the Chairman and 
members of the subcommittee for giving me the opportunity to 
testify today.
    I want to start by saying that I've generally been dismayed 
by the kind of debate that has surrounded the issue of setting 
a de minimis radiation standard, particularly that more often 
than not, it becomes so polarized that little meaningful 
discussion occurs at all.
    I believe the DOE and NRC officials bear particular 
responsibility for this dynamic because of their inability or 
unwillingness to do more than assert the correctness of their 
position, without first attempting to explain the basis for it 
in a meaningful way to the public.
    In my testimony my hope is to identify some of the sources 
of the public's concern more specifically. That is, to try 
incrementally to move beyond this stalemate toward a broader 
discussion that will promote a fuller understanding of the 
issues and the bases for public concern.
    The NRC, and particularly the DOE, have a long history of 
poor relations with the public and failing to safely control 
radioactively contaminated materials. The NRC, for example, was 
caught flatfooted when it was brought to its attention that the 
contractor conducting the technical analysis for its proposed 
rule SAIC had a direct conflict of interest, namely that it was 
working concurrently for BNFL, the major DOE contractor 
responsible for recycling radioactively contaminated metals at 
Oak Ridge.
    For its part, the DOE has avoided the open public 
engagement recommended by a 1996 National Academy of Sciences 
study that the DOE sponsored when it chose to proceed with the 
massive Oak Ridge radioactive metals recycling project without 
complying with NEPA or providing adequate public notice.
    There are also numerous examples of DOE releasing 
radioactive materials improperly. The recent reports of 
improper releases and dumping of radioactive materials at 
Paducah is just the most recent example.
    In short, if the NRC and DOE cannot manage such materials 
in a purported highly regulated environment, what confidence 
can the public possibly have that they can release contaminated 
materials safely for use in consumer products.
    The implementation problems of a standard are equally 
serious. The public is skeptical about the NRC's ability to 
reasonably evaluate the human health impacts associated with a 
de minimis standard. Examples of specific issues are, aggregate 
effects of multiple exposures to different contaminated 
materials; synergistic effects with other carcinogens; and 
assessing the long-term impacts of radionuclides that remain 
hazardous for literally thousands of years.
    The public is also profoundly concerned about the capacity 
of DOE and NRC licensees to release materials safely and in 
compliance with whatever standard may be set. The reasons for 
this include: the difficulties involved in surveying complex 
equipment for contamination and questions about whether proper 
instrumentation is available and will be used. None of these 
issues has been adequately addressed to the satisfaction of the 
public.
    The most basic question the public is asking is why 
materials contaminated with nuclear wastes need to be recycled 
in the first place. What is the underlying policy? This is 
particularly relevant given the low value of steel which makes 
up the vast bulk of metals that could be recycled. Not even the 
economics appear to support recycling such materials. Moreover, 
such a standard, when applied to recycling, establishes a 
dangerous precedent of turning recycling into a form of 
hazardous waste disposal which is achieved by diluting 
contaminants in bulk commercial products. At a basic intuitive 
level, this just seems like bad public policy.
    Neither the NRC nor DOE has provided a clear understandable 
explanation for why such a standard is necessary or why in 
particular recycling of contaminated materials makes sense. 
Lacking public confidence, facing serious public concerns about 
practical real-world problems, and failing to address basic 
public policy issues coherently, it is no wonder that the NRC 
and DOE have run into such strong public opposition.
    These concerns must be addressed before proceeding with the 
rule or indeed, proceeding with any further releases of 
contaminated materials.
    Thank you.
    Senator Inhofe. Thank you, Mr. Adelman.
    Mr. Kennedy.

             STATEMENT OF WILLIAM KENNEDY, HEALTH 
                        PHYSICS SOCIETY

    Mr. Kennedy. Thank you, Mr. Chairman and members of the 
subcommittee for having me here today to present to you 
information from the Health Physics Society.
    I am a member of the Board of Directors of the Health 
Physics Society which is an independent, nonprofit, scientific 
organization of professionals who specialize in radiation 
safety. I am pleased to testify today on the efforts of the 
Society and the American National Standards Institute to 
develop a formal, consensus standard on the release of 
contaminated materials, including metals, and to comment on the 
proposed current NRC rulemaking effort in this area.
    I am past chairman of an ANSI writing group to develop 
national consensus standards on clearance for the release of 
materials from radiological controls. The standard is known as 
ANSI N1312 and it was published in January of this year.
    I also serve as a consultant to the International Atomic 
Energy Agency, the IAEA which is an agency of the United 
Nations to help them develop technical criteria for clearance 
that can be applied to international commerce.
    The Health Physics Society includes over 6,000 members who 
are engaged in the practice of radiation safety. As a non-
profit, scientific organization, we are not affiliated with any 
governmental, industrial or private entity and therefore, we 
are in a unique position to provide informative, scientific 
positions that are independent of both government and industry.
    In summary on this issue, the Health Physics Society 
recommends that first, uniform standard dose criteria for 
clearance for release of radioactively contaminated materials 
are necessary and important and it is an important part of 
protecting public health and the environment from unnecessary 
radiation exposures.
    Second, radiation protection regulations should be based on 
consensus standards, including those issued by ANSI and the 
Health Physics Society.
    Third, the primary dose criterion should be related to 
screening levels that can be used to establish radiation survey 
programs that will ensure that the dose levels will be met.
    Fourth, the ANSI standard N1312 should be adopted by U.S. 
Federal agencies for application to the clearance or release of 
these materials.
    Mr. Chairman, the Health Physics Society believes that the 
establishment of strict dose standards and guidelines for 
clearance will ensure that potentially harmful sources are 
controlled while conserving our natural resources. We strongly 
support the continuing effort of the NRC in this area to 
explore the rulemaking and we encourage the NRC to adopt the 
criteria outlined in the ANSI standard.
    The development and use of release criteria is not unique 
to radiation and radioactive materials. For example, the Food 
and Drug Administration sets levels for pesticides and other 
materials in foods. The Environmental Protection Agency sets 
contamination levels in water, air and in soil during the 
cleanup of land contaminated with hazardous materials.
    The purpose of the ANSI standard is to provide guidance for 
protecting the public and the environment from radiation 
exposure by specifying a primary dose criteria of 1 mr per year 
which is consistent with the recommendations of the IAEA and 
with international commerce. The 1 mr per year number is a very 
small fraction as we have heard of the doses that Americans 
receive from natural background sources.
    For example, Americans receive about 300 mr per year from 
background, including the radon in their homes and 1 mr is only 
about .3 percent of the natural background dose that Americans 
receive. For perspective, I'll receive about five times that 
dose traveling round trip to appear before this subcommittee by 
airplane.
    The current proposed NRC rulemaking is focused on the 
recycle of contaminated metals and fears that consumer products 
will become contaminated to unacceptable levels. Recycling 
cleared metals would not mean the dilution of highly 
contaminated metal and other metals into commerce. Rather, it 
would mean the careful sorting of these metals using standard 
criteria such that no metals above the restrictive 1 mr per 
year clearance criteria could find their way into commerce. The 
credibility of the U.S. radiation protection framework is at 
stake here since other countries have already adopted uniform 
criteria and we have not.
    Industry standards such as ANSI N1312 can play an important 
role in the regulatory process. The OMB issued revisions to 
Circular A-119 which requires Federal agencies to use voluntary 
industry standards developed by the private sector whenever 
possible. The purpose of this requirement is to eliminate 
excessive costs by the Government to develop its own standards. 
Thus, the ANSI standard could play a significant and key role 
in development of Federal regulations and policy regarding 
clearance.
    In closing, the Health Physics Society believes that it is 
important that clearance criteria for low levels of radiation 
in materials be established to increase the protection of the 
public, the environment and health and to ensure that 
potentially harmful sources are controlled while conserving our 
natural resources.
    We strongly support the continuation of the NRC rulemaking 
in this area and we encourage the NRC to adopt the criteria 
outlined in the ANSI standard N1312. Thank you.
    Senator Inhofe. Thank you, Mr. Kennedy.
    At our last hearing or the hearing before last, we said we 
would like to have the 5-year plan and then have the reaction 
from both the GAO and the NEI to that plan. I was a little 
critical a minute ago, Mr. Meserve, that the plan didn't get 
here a little earlier. On the other hand, I want to thank you 
for getting all your testimony in on time. I wish the EPA would 
take a lesson from you on that.
    Mr. Beedle and Ms. Jones, you've had a chance to look at 
this and I'd like to have you briefly address it and get into 
any detail you'd like as far as that 5-year plan. Is it 
adequate? Your comments about it.
    Mr. Beedle. Our preliminary look at the 5-year strategic 
plan that was issued last week resulted in the same kind of 
conclusion we had previously with regard to the details and 
fidelity of that plan. We think that the resource information 
that was provided by the Commission to you in a letter dated 
March 7 provides far more valuable information in looking at 
long range planning.
    As I indicated, we have just had a short time to review 
that. We would look at both the strategic plan and that 
information document as a composite and I think it is headed in 
the right direction. I think we are looking at that as an 
excellent start to a longer range strategic plan that would be 
meaningful for the staff.
    Senator Inhofe. Ms. Jones.
    Ms. Jones. Two points, Mr. Chairman. One is in terms of the 
5-year strategic plan. NRC has made some changes that have been 
positive. It reduced the number of strategic areas from seven 
to four and they focused those four areas on outcomes. Its 
performance looking at outcomes will be easier to track; that 
is, whether or not it is meeting its goals in those areas.
    The second point I'd like to make is our point in testimony 
a year ago before you was NRC needed a focused strategy to 
implement risk-informed regulation. In my testimony this 
morning, I mentioned it was coming out with that implementation 
plan in the next couple of days. The outline we have seen of 
that looks very positive. It mentions all the kinds of elements 
that we were expecting to see, so we look forward to seeing 
that as well.
    Senator Inhofe. Mr. Meserve, do you have any comments about 
their partly embracing, partly criticizing the plan?
    Mr. Meserve. Let me just apologize at the outset for the 
delay in our sending the material to you this week. The letter 
Mr. Beedle referred to of the 7th had attached to it the 
document that was intended to be responsive to your request for 
a 5-year plan. He has indicated that document includes the kind 
of information he thinks should be in the plan.
    The reason there is confusion about it is that we had 
developed very aggressive efforts to prepare a strategic plan 
which were required to prepare by the Government Performance 
and Results Act, that sets out the agency's broad goals and 
objectives and various metrics for assessing them.
    The material we submitted to you this week was intended to 
take that same information and then relate it to resource 
information over a 5-year period. We are hopeful that would be 
helpful to you in responding to the request you made that we 
provide you with information.
    Let me say though that this is a very difficult 
undertaking. If you had asked us to prepare a 5-year plan 3 
years ago as to what we would be doing today, we would have no 
doubt predicted that we would have a large part of resources 
devoted to decommissioning nuclear plants, and preparing for 
the decommissioning of nuclear plants.
    As a result of changes in the industry, and I hope as a 
result of changes that have been undertaken by the Nuclear 
Regulatory Commission, there are now a substantial number of 
our operating plants that can continue operation and are 
intending to file licenses for license renewal and life 
extension. As many as 80 percent of the plants, we understand 
informally, may come forward and seek life extension.
    In light of that, it is extraordinarily difficult for us to 
provide reliable estimates on into the future because our 
workload is largely governed by the events that are external to 
us.
    Senator Inhofe. Thank you, Mr. Meserve.
    Mr. Beedle, I'm interested in the new reactor regulations 
that are being implemented by the NRC. Now that we have 
completed the pilot program, would you comment on how the new 
performance indicators used by the NRC for reactor regulation 
reflect the safety margins at our nuclear plants?
    Mr. Beedle. The new oversight process indeed gives some 
focus on the performance indicators and I'll comment on that in 
just a moment. I would point out that the oversight process is 
more than just a performance indicator. It's a performance 
indicator followed by an inspection process, an enforcement 
process and a significant determination process that all boil 
up into a more effective way on the part of the NRC to provide 
oversight for the facilities.
    With regard to the performance indicators themselves, there 
are 18 performance indicators that are used by the agency to 
gauge the safety level of the plant and I think those 
indicators which are available on the NRC's website clearly 
demonstrate the tremendous margin of safety that exists at 
these facilities. I think the levels of thresholds that have 
been established by the Commission are aggressive, reflect the 
excellent performance in safety and production that the 
industry has achieved and I think they go a long way to 
providing both the NRC, the industry and the public a detailed 
looked at each one of our facilities and how well they operate.
    Mr. Adelman, in your testimony you say you are opposed to a 
rule which I understand has not been proposed. So what are you 
talking about and are you prejudging?
    Mr. Adelman. Actually, I think the public's concern was 
that the NRC was potentially prejudging.
    Senator Inhofe. The what was concerned?
    Mr. Adelman. The public's concern is that the NRC was 
potentially prejudging its rule. The memo that was sent to the 
NRC staff from the Commission presented the issue as almost a 
foregone conclusion that a de minimis standard would be set. 
One concern of the public was that all the various alternatives 
be fully considered before a final rule is determined.
    Senator Inhofe. I don't want to sound overly critical but I 
keep hearing you say what the public is saying. I don't hear 
the public saying this. Tell me who you're speaking for when 
you say the public? Is this polling data, do you get it from 
newspapers? Who is the public?
    Mr. Adelman. There was a poll undertaken by an industry 
group in December that assessed different types of recycling 
scenarios. In that poll the range of opposition to recycling 
was about 60 to 70 percent. So at least initial polling data 
indicates there is public opposition.
    NRDC is also a large environmental organization. We have 
more than 400,000 members spread throughout the country and 
there are a number of other large environmental groups that 
have similar concerns.
    Senator Inhofe. In your comments opposing the development 
of a national standard, I want to get into this thing about a 
standard. You are opposed to or you don't believe that a 1 mr 
range is a standard that should be set. Do you oppose a 1 mr 
standard?
    Mr. Adelman. I think that NRDC's position is that we don't 
oppose the standard in principle. In other words, our belief is 
that given adequate data and analysis, in principle a standard 
could be set. Our concern is the credibility of DOE and NRC and 
the long legacy of mismanagement of, in particular, DOE 
facilities.
    Senator Inhofe. I guess I'll put it a different way. You 
heard Senator Voinovich talk about the cutting up of the plant 
and you would oppose that recycling of that, correct, or is it 
the method by which it would be recycled?
    Mr. Adelman. I think again the central issue here is, given 
the problems that have continually been raised about, in 
particular, DOE's but even other facilities' management of 
radioactively contaminated materials, whatever standard you 
set, the public needs to be convinced that standard can be 
adhered to and that there aren't going to be unanticipated 
risks associated with recycling such materials.
    If you look at instances like Paducah, KY that recently 
came up this past summer, we find time and again that the DOE, 
in particular--which is going to be responsible for recycling 
the large bulk of material if this should go forward--hasn't 
been able to and continues not to be able to adequately manage 
these materials. If they can't manage it in a highly regulated 
environment, how can the public have any confidence that they 
can release it for use in commercial products?
    Senator Inhofe. I'm going to ask if Mr. Meserve has any 
response to that statement?
    Mr. Meserve. I would like to make a few points. The main 
theme Mr. Adelman has raised is that the NRC has not allowed a 
meaningful public debate on the issue as to whether there 
should be a standard.
    In fact, the debate that we're having today and the 
discussion that has arisen on this issue is precisely because 
the NRC has tried to obtain the views of the public on whether 
to have a rule, what the content of a rule should be, and what 
the issues are. The purpose of our publication of the issues 
paper and of our public meetings that we have had all over the 
country has been exactly for the purpose of engaging the public 
before we proposed a rule to make sure that we understood the 
issues that are of concern.
    Senator Inhofe. I'm going to interrupt you at this point, 
Mr. Meserve. I have a number of questions I want to ask this 
panel I am going to be forced to ask on the record because the 
Armed Services Committee I just found out is about to wind up 
and we have Secretary Richardson up there and I have a very 
critical line of questioning for Secretary Richard.
    I am going to have to conclude this but I appreciate both 
panels and the time that you have spent. I want you to know 
that you will be receiving a lot of questions that we will be 
asking you to respond to on the record.
    We will adjourn this meeting. Thank you very much.
    [Whereupon, at 10:48 a.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
     Statement of Hon. Joseph I. Lieberman, U.S. Senator from the 
                          State of Connecticut
    Good morning and thank you, Mr. Chairman, for holding this 
oversight hearing on the Nuclear Regulatory Commission.
    Nuclear energy is a critical component of our power supply in 
Connecticut and New England, and I have long been a supporter of 
continued research and development of nuclear energy. Because it does 
not produce emissions of nitrogen oxides, sulfur dioxide, carbon 
dioxide and other air pollutants, nuclear power should be a key 
component of our nation's ability to meet its energy needs while also 
ensuring clean air for the public.
    However, nuclear energy is not without risks, and for that reason I 
also support a strong role for the Nuclear Regulatory Commission in 
overseeing and managing our nation's nuclear plants. Both Congress and 
the public must have confidence in the NRC's ability to ensure that our 
nuclear facilities are operated with the highest safety standards. A 
strong NRC has been particularly important for oversight of the 
Millstone Units in Connecticut, where the NRC investigated federal 
safety regulation violations that occurred in 1995. Over the next year, 
the Millstone Units will be auctioned to a new owner under 
Connecticut's energy deregulation legislation. Again, NRC oversight 
will be critical for maintaining strong standards of safety and 
management as this transition occurs.
    Last April, in response to a request from Senator Biden and me, GAO 
issued a report entitled ``Strategy Needed to Regulate Safety Using 
Risk Information.'' The report identified some of the challenges that 
the NRC and the nuclear power industry could experience in a 
competitive environment, and issues that the NRC must address in its 
efforts to implement a risk-informed approach to plant safety and 
enforcement of oversight programs.
    Now, over a year later, the NRC has gained more experience with 
risk-informed safety management. A pilot program at 13 reactors will 
now be extended to all plants, including Millstone. Overall, I am 
hopeful that this new framework will help the agency prioritize the 
safety concerns that pose the greatest risk. I am also supportive of 
NRC's intention to increase transparency by posting report cards for 
every plant on the Internet. Timely sharing of information with the 
public can only help enhance the effectiveness of the NRC. It also can 
serve a verification role to correct any mistakes that might have been 
since performance evaluations are based on a plant's self-reporting.
    Today I am interested in hearing from witnesses about what progress 
NRC has made in addressing some of the questions raised in the GAO 
report. For example, how will NRC monitor the safety of our nuclear 
plants in a deregulated environment? How is NRC managing the transition 
from traditional to risk-informed regulatory paradigms? What steps is 
the NRC taking to improve its base of information on the plant 
conditions and modifications to ensure that adequate information is in 
place to effectively monitor plant safety?
    Finally, I'd like to touch on the issue of NRC's regulatory review 
and rulemaking proceedings that could provide for the release of 
radioactively contaminated solid materials for use in consumer 
products. As has been evident in several news stories about this issue, 
the public is very concerned about the potential for radioactively 
contaminated materials to be introduced into the metals stream. Once 
included, treated metals will not be identifiable in particular 
products, and there is a real concern on the part of recyclers and 
scrap metal dealers that even if the material is deemed to be safe 
under state or federal regulation, consumers may not be satisfied and 
will not want to purchase the product. It is absolutely essential that 
the NRC do a better job of providing an open, clear forum to proceed 
with this rulemaking. I recently joined several other Senators on this 
committee in writing to you to raise concerns about how the NRC is 
addressing this important issue. I hope that you can provide a response 
here today.
    I look forward to hearing from the witnesses, and thank all of you 
for participating in this hearing today.
                               __________

    STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE OF 
                               CALIFORNIA

    Thank you for holding this oversight hearing, Mr. Chairman.
    I would like to welcome NRC Chairman Richard Meserve and the other 
Commissioners to the committee today. I would also like to welcome Dr. 
David Adelman from the Natural Resources Defense Council and the other 
witnesses that are here today to discuss the NRC's radioactive 
recycling proposal.
    I have two very serious issues that I would like to raise.
    The first issue involves the NRC's 1998 decision not to require the 
Army Corps of Engineers to dispose of low level radioactive waste at 
NRC licensed facilities. The second issue involves the NRC's recent 
proposal to permit radioactively contaminated materials to be released 
into the environment without restriction.
    Two recent cases in California involving these issues show how the 
decisions the NRC makes on these matters can have a very direct and 
potentially harmful impact on the lives of our citizens and our 
environment.
    The first case involves the Army Corps of Engineers disposal of 
2,200 tons radioactive waste in a California dump not licensed to 
dispose of such waste. The dump sits above aquifers that supply water 
to the Central Valley of California.
    When I learned of the Corps action, I immediately demanded that 
they remove the waste from the site, and dispose of it properly at a 
NRC licensed facility.
    The Corps responded to me that they are under no legal obligation 
to dispose of this radioactive waste at a NRC licensed low level 
radioactive waste facility. The Corps justified this position by 
relying upon a 1998 legal opinion supplied by the NRC.
    In that hairsplitting NRC opinion, the NRC told the Corps that it 
would only require the Corps to send low level radioactive waste to a 
NRC licensed facility if the waste was generated after 1978.
    According to the NRC, the exact same type of waste did not have to 
be disposed of at a NRC licensed facility, however, if it was generated 
before 1978.
    Since the waste the Corps improperly dumped in California was 
generated before 1978, the Corps says it has no obligation to dispose 
of it in a safe, NRC licensed facility.
    Although the NRC reads the relevant law as justifying this 
interpretation, judicial opinions don't support it. I would like to 
understand better how the NRC justifies this interpretation. Also, I 
understand that citizens have petitioned the NRC to reverse its 
interpretation. I would like to hear about the NRC's plans to consider 
that petition.
    I will shortly introduce legislation to require that this 
radioactive waste--regardless of when it was generated--be properly 
disposed of in a NRC licensed facility. It will also require the Corps 
to remove the 2,200 tons of radioactive waste it improperly dumped in 
California, and to properly dispose of it at a NRC licensed facility.
    The second case I would like to address involves the Department of 
Energy cleanup of a nuclear research and weapons production facility 
called Rocketdyne located in Ventura County, California.
    As part of the cleanup, the DOE approved the release radioactively 
contaminated building debris for disposal at standard municipal 
landfills. Shockingly, DOE also released trailers from the site and 
sent them to a school to be used as children's classrooms.
    Although the trailers were on a site that is heavily contaminated 
with radioactive materials, DOE didn't even test the trailers for 
radioactive contamination before sending them out to be used as 
classrooms.
    When I learned of this incident, I demanded that DOE retrieve the 
trailers from the school and locate the building debris. I also 
discovered, however, that there are effectively no federal legal 
restrictions on releases of this kind.
    While the fact that we have no legal restrictions against this 
practice is bad, the NRC's proposed radioactive recycling proposal is 
far worse.
    That proposal could fill this legal void with a standard which 
would explicitly allow such releases to occur in the future. It could, 
for example, allow trailers from radioactively contaminated sites to be 
used as children's classrooms, as almost occurred in the Rocketdyne 
case.
    For this and other reasons I, along with Sens. Baucus, Lautenberg, 
Lieberman, Moynihan and Reid, recently sent the NRC a letter urging it 
not to proceed with a rulemaking which would provide for these 
releases. In the letter, we pointed out that the NRC proposal appears 
to be inconsistent with its mission to protect public health and 
safety.
    We also pointed out that the NRC proposal is nearly identical to 
the agency's ``below regulatory concern'' policies of 1986 and 1990. As 
you know, in the Energy Policy Act of 1992, Congress specifically 
directed NRC not to implement those policies.
    I would like to hear the NRC's rationale for pursuing this 
discredited policy. I would also like the NRC to discuss any studies 
which show that this policy would be protective of public health and 
the environment.
    I look forward to hearing the NRC's position on these and other 
issues today.
    Thank you.
                               __________

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

    Mr. Chairman, I thank you for allowing me to submit my comments for 
the Record at today's hearing on the Nuclear Regulatory Commission 
(NRC). The critical issue of regulatory oversight of our nuclear energy 
sector is of tremendous importance to me and a vital factor in 
providing for our nation's energy security.
    Earlier this year I introduced legislation (S. 2016) to assist the 
NRC in its efforts to achieve greater efficiencies and eliminate 
outdated restrictions within our nuclear energy sector. Several 
provisions from S. 2016 have been included in S. 1627, but several very 
important ones were not.
    More specifically, my legislation, eliminated anachronistic 
provisions that preclude any foreign ownership of power and research 
reactors located in the United States. These provisions are a 
significant obstacle to foreign investment or participation in the U.S. 
nuclear power industry and its restructuring. No valid reasons exist to 
prohibit investors from countries such as the United Kingdom from 
participating in the ownership of nuclear plants in this country. The 
provisions in current law that protect U.S. security interests are 
unchanged by my legislation. The NRC strongly endorses removing these 
restrictions.
    Furthermore, a clarification of the NRC's authority to conduct 
informal hearings in specific licensing actions is critical. My 
legislation provides that the Commission should not use formal 
adjudicatory procedures in cases of amendments or transfers of existing 
operating licenses. As Chairman Meserve points out in his testimony 
today, informal proceedings are often an appropriate way to involve the 
public--not cut them out of the process.
    Last, I believe it is imperative to give the NRC the authority to 
establish such requirements it deems necessary to ensure that non-
licensees fully comply with their obligations to provide funding for 
nuclear plant decommissioning. This includes jurisdiction over non-
licensees, i.e., those who have transferred their license but retain 
responsibility for decommissioning. Although the NRC believes it has 
this authority, I strongly believe we should clarify this issue.
    Mr. Chairman, I am sure everyone is aware of my strong commitment 
to nuclear energy. This conviction is well-founded; the recent spike in 
oil prices shows that we must get our nuclear energy sector back on 
track.
    Ensuring diversity and reliability in our nation's future energy 
portfolio is a critical national security concern. I want to ensure 
nuclear is part of that portfolio. In order to ensure nuclear's 
presence in the future, we must pay careful attention to changes in the 
regulatory environment now. The NRC is a major component of that 
regulatory framework.
    I congratulate the NRC on all of their recent progress in 
implementing a risk-
informed approach to their oversight responsibilities. I applaud their 
progress in 
expediting the relicensing process, and their work to create a more 
objective, risk-relevant inspections regime. All of these represent 
needed and valuable improvements.
    I believe it is now Congress' task to assist the NRC in its efforts 
by eliminating outdated restrictions and ensuring the statute is 
appropriate based on current conditions within the energy industry.
    Mr. Chairman, I thank you again for the work this committee is 
doing on this important issue.
                               __________

                                              U.S. Senate, 
                 Committee on Environment and Public Works,
                                     Washington, DC, March 2, 2000.

Dr. Richard Meserve, Chairman,
U.S. Nuclear Regulatory Commission,
Washington, DC.
    Dear Chairman Meserve: We are writing to express our serious 
concerns with Nuclear Regulatory Commission (NRC) regulatory actions 
which could provide for the release of radioactively contaminated 
materials for use in consumer products and for other uses. We believe 
these actions suffer from several flaws. First, they appear to lack 
sufficient justification and support on the record. Even if such flaws 
can be corrected, other NRC actions may undermine the objectivity of 
the process. Second, and more importantly, we believe that such actions 
may be inconsistent with the Atomic Energy Act and the NRC's mission to 
protect public health and safety.
    As you know, on June 30, 1999, the NRC released an issue paper 
seeking public input into the question of whether it should broaden its 
current case-by-case approach which permits the release of radioactive 
materials for use as consumer products and for other purposes.
    Under sections 84 and 161 of the Atomic Energy Act, the NRC has the 
general responsibility to protect the health and safety of the public 
from unreasonable risks posed by byproduct and other radioactive 
materials. Despite the statutory requirement, the major impetus for the 
NRC to consider a radioactive release rule appears to be improving the 
consistency of its radioactive release regulations among air, water and 
solid media.
    To our knowledge, NRC has not determined that the actions it is 
considering to increase the amount of radioactive material in commerce 
will not constitute an unreasonable risk to the health and safety of 
the public. Moreover, to our knowledge there have been no NRC economic 
analyses of the potential negative impact the proposal or regulatory 
changes could have on the metals recycling and related industries. 
Finally, NRC has not adequately explained why the consistency of 
regulatory treatment among differing media justifies the increased 
amount of radioactive materials in commerce that would result.
    We would also note that in considering the Energy Policy Act of 
1992, Congress specifically rejected the development of a ``below 
regulatory concern'' standard.
    In addition to our concern about whether there exists an adequate 
basis for changing the current system, several other actions undertaken 
by NRC suggest that the Commission may have already decided to move 
forward with changing the current case-by-case approach, regardless of 
the outcome of the public comment and review of the June 1999 proposal.
    For instance, a June 30, 1998, NRC memorandum from L. Joseph Callan 
to NRC staff directs the staff to focus the rulemaking on ``the 
codified clearance levels above background for unrestricted use that 
are adequately protective of public health and safety.'' This direction 
suggests that NRC may not seriously evaluate the option of not moving 
forward with a rulemaking. Rather, it seems to indicate that the 
process is designed to justify further deregulation of nuclear 
materials rather than objectively analyze whether such a change is 
warranted.
    This concern is underscored by the selection of Science 
Applications International Corporation (SAIC) to perform the technical 
analyses that would form the foundation for a rulemaking on this 
subject. SAIC handles regulatory compliance issues for businesses that 
have a direct interest in the deregulation of radioactive materials, 
thereby raising a question of its objectivity on this subject.
    In addition, we understand that the NRC has given its tacit 
approval of a plan to release approximately 6,000 tons of radioactively 
contaminated materials for recycling at the Department of Energy's 
(DOE) K-25 facilities on the Oak Ridge Reservation. To our knowledge, 
this is the largest proposed release of its kind in history. Allowing 
such a plan to move forward in advance of resolving the issues raised 
in the NRC proposal raises serious questions concerning whether those 
issues can be resolved in an impartial manner.
    We believe that until the concerns we have raised are addressed, 
and Congress is further consulted, the Commission should not proceed 
with any action that could result in increasing the amount of 
radioactive materials released into commerce.
    We also would appreciate receiving information on the volume of 
contaminated materials that have been released into commerce since 
1992, separated by licensee, the associated radioactivity, and where 
the materials went.
    Thank you for your attention and consideration. Please inform us as 
soon as possible how the Commission intends to proceed in this matter.
            Sincerely,
                                   Max Baucus,

                                   Barbara Boxer,

                                   Frank R. Lautenberg,

                                   Harry Reid,

                                   Joseph Lieberman,

                                   Daniel Moynihan.
                               __________
Statement of Hon. Jeff Sessions, U.S. Senator from the State of Alabama
    Mr. Chairman, thank you for inviting me back to the Environment and 
Public Works committee to testify at today's Nuclear Regulatory 
Commission oversight hearing. I appreciate your continued leadership on 
this important issue. Nuclear power plays a critical role in the United 
States energy supply. Providing over 20 percent of the electric power 
in this country, nuclear energy is one of the cleanest and safest ways 
we have to produce power.
    During the two years I served on the this subcommittee--under your 
leadership, Mr. Chairman--I learned a great deal about our national 
efforts to combat air pollution while at the same time trying to meet 
our nation's increasing energy needs. The experience has led me to 
conclude that it is insanity to believe that we can meet our energy and 
environmental needs without the use of nuclear power.
    Fortunately, I am not alone in this conviction. Members of the 
Administration and notable nuclear experts seem to agree:
    In October 1998, Undersecretary of State, Stuart Eizenstat, 
remarked:

          I believe very firmly that nuclear has to be a significant 
        part of our energy future and a large part of the Western world 
        if we're going to meet . . . emissions reduction targets. Those 
        who think we can accomplish these goals without a significant 
        nuclear industry are simply mistaken.

    Then in March, 1999, John Ritch, U.S. Ambassador to the North 
Atlantic Assembly remarked:

          The reality is that, of all energy forms capable of meeting 
        the world's expanding needs, nuclear power yields the least and 
        most easily managed waste. (Amb. John Ritch)

    In 1993, Pulitzer Prize winner Richard Rhodes wrote in his book, 
Nuclear Renewal:

          Electricity from nuclear fission continues to be the most 
        comprehensive source of energy available to meet growing U.S. 
        demand--the cleanest and safest of major sources.

    Many of the problems which have hindered the development and 
increased use of nuclear power in the United States has not arisen from 
safety risks or inherent problems with the use of the technology, but 
from burdensome regulations and high economic risks associated with 
licensing and bringing a new plant on-line. In addition, plunging 
fossil fuel prices following the 1970's made nuclear power less 
economically feasible.
    At times, there seems to have been an irrational hostility towards 
nuclear power reflected by excessive NRC regulations and Administration 
policy which has focused not on safety, but rather on the micro-
management of nuclear plant operation. The cumulative affect of these 
developments has forced would be nuclear plant owners to pursue other, 
less environmentally friendly, electricity generation sources.
    In the long run, however, nuclear energy must remain a significant 
part of our energy mix.
    Between 1973 and 1997, nuclear generation avoided the emission of 
82.2 million tons of sulfur dioxide and more than 37 million tons of 
nitrogen which would have been released by fossil fuel plants producing 
the same amount of electricity.
    In 1997 alone, emissions of sulfur dioxide would have been about 
five million tons higher and emissions of nitrogen oxides 2.4 million 
tons higher had fossil generation replaced nuclear.
    As testimony before this committee has shown, the impact of these 
offset emissions could have had a significant adverse effect on both 
the environment and human health.
    Some believe that nuclear power is dangerous and presents 
unacceptable risks. To put the idea of risk in context, physicist Dr. 
Bernard Cohen conducted a detailed study in 1990 titled The Nuclear 
Energy Option which carefully examined the risks associated with the 
use of nuclear power.
    Dr. Cohen bases his analysis on two studies, the Reactor Safety 
Study issued by the NRC in 1975 and a study conducted by the Union of 
Concerned Scientists published in 1977.
    Dr. Cohen states:

          According to the Reactor Safety Study . . . the risk of 
        reactor accidents in the U.S. would reduce each American's life 
        expectancy by .12 day or 18 minutes, whereas the Union of 
        Concerned Scientists estimate is 1.5 days. Since our `Loss of 
        Life Expectancy' of being killed by any type of accident is now 
        400 days, the risk would be increased by .003 (three one 
        hundredths of one percent) . . .

    Dr. Cohen goes on to conclude:

          According to the best estimate of Establishment scientists, 
        having a large nuclear power program in the United States would 
        give the same risk to the average American as a regular smoker 
        indulging in one extra cigarette every 15 years, as an 
        overweight person increasing his or her body weight by .012 
        once . . . and is less risky than switching from midsize to 
        small cars.

    Clearly, the risks associated with nuclear power are manageable and 
far less risky than many other forms of conventional electricity 
generation. With the NRC's renewed focus on minimizing the risks of 
nuclear power generation, it is possible to make nuclear power 
generation even safer.
    Although high costs currently prevent new plants from being brought 
on-line, we do have virtually complete plants across the nation which 
might be economically feasible to complete in the near future. One 
plant in my own state of Alabama--the Bellefonte nuclear power plant in 
Scottsboro--is over 85 percent complete. Even though this plant has the 
ability to significantly reduce air pollution, fear of NRC regulations 
adds to an already high economic risk. I am hopeful the continuation of 
reforms underway at the NRC will improve the feasibility of eventually 
bringing Bellefonte and other partially complete plants on-line.
    I would like to take a moment to recognize the employees of a 
particular nuclear power plant who exemplify the way to safely operate 
a nuclear power plant. Last week, TVA's Browns Ferry Nuclear plant in 
Alabama set a record for operating a boiling water reactor for 500 
consecutive days without a single shut down.
    This is a significant achievement and one for which the plant 
employees, the NRC and the entire U.S. nuclear industry should be 
proud.
    The Nuclear Regulatory Commission has made significant improvements 
in carrying out its regulatory responsibilities since this committee's 
first oversight hearings held in July of 1998 and February 1999. Moving 
regulatory focus away from micro-management and towards risk informed 
and performance based regulations appears to have helped both operators 
and regulators to focus their efforts on safety. I am hopeful the NRC 
will continue its reforms and continue to ensure the safety of our 
nuclear power program while at the same time striving to eliminate and 
avoid unnecessary regulations and procedures.
    Mr. Chairman, during one of previous NRC oversight hearings, you 
correctly pointed out that the NRC could shut down the nuclear program 
in the United States. If that happened, over 20 percent of this 
nation's total electricity would have to be replaced by fossil fuel 
plants. The potential health and environmental impacts of such a 
scenario are staggering.
    Mr. Chairman, thank you for affording me the opportunity to testify 
today. Under your leadership and continued oversight, the NRC has 
improved the carrying out of its regulatory responsibilities. As a 
result, the future of nuclear power in the United States is looking 
brighter.
    I am hopeful the NRC will continue these needed reforms. The future 
of our nation's energy supply depends on it.
                               __________

  STATEMENT OF RICHARD A. MESERVE, CHAIRMAN, U.S. NUCLEAR REGULATORY 
                               COMMISSION

    Mr. Chairman and members of the subcommittee: It is a pleasure to 
appear before you today with my fellow Commissioners to discuss the 
Nuclear Regulatory Commission's accomplishments, the challenges before 
us, our budget submittal, and our legislative program. Let me first 
introduce my fellow Commissioners, Greta Joy Dicus, Nils J. Diaz, 
Edward McGaffigan, Jr., and Jeffrey S. Merrifield. All of us appreciate 
the interest of this subcommittee and the series of hearings that you 
have held over the past two years.
    I last appeared before the Environment and Public Works Committee 
for my confirmation hearing. I told the committee at that time that, in 
my view, the NRC was generally on the right track. My experience over 
the past four months has confirmed that view. During the 105th Congress 
the Commission began sending a monthly report on our activities to this 
subcommittee and other Congressional oversight and appropriations 
committees. We believe that these monthly reports depict an agency that 
is successfully managing a host of important initiatives. Our testimony 
today will briefly summarize some of the accomplishments that we have 
described in greater detail in our reports.
    We also believe that our programs have benefited from Congressional 
scrutiny and from the scrutiny of other outside stakeholders, both in 
industry and in the public interest community. I would like to make 
specific note of the report issued by the Center for Strategic and 
International Studies (CSIS) since the Commission last met with you. 
The ranking minority member of this subcommittee, Senator Graham, was 
one of the Congressional participants in that study. This was an 
excellent study that told us that the NRC was on the right track, but 
that the agency had much more to do. We agree.

                            ACCOMPLISHMENTS

    Let me highlight just a few of the major areas that I know are of 
concern to this subcommittee. Mr. Chairman, I understand that you have 
a continuing interest in the status of license renewal applications. It 
should be noted that we have met or exceeded every milestone in our 
review of the Calvert Cliffs and Oconee licensee renewal applications. 
The Calvert Cliffs license renewal is currently pending before the full 
Commission. The staff has recommended, based on its review of the 
safety and environmental issues, that the Commission approve the 
license renewal application. The Commission was briefed by the staff on 
its recommendation on March 3. In addition, the Advisory Committee on 
Reactor Safeguards has advised us to approve the license based on its 
independent review of the safety issues. I should note that the U.S. 
Court of Appeals for the District of Columbia heard oral argument on 
March 2, 2000, on an appeal by the National Whistleblower Center of the 
Commission decision to deny the Center an adjudicatory hearing in this 
case. Unless the Court orders otherwise, the Commission intends to 
reach a decision on the Calvert Cliffs renewal by April, within 24 
months after the application was received. The Oconee license renewal 
is similarly on track for a Commission decision by this July. Although 
we have processed these first renewal applications expeditiously, we 
have a major effort underway to look at the generic lessons learned 
from license renewal and to make improvements in our process for future 
applicants. We now have a large number of future applicants who are 
queuing up to renew their reactor licenses--a reflection, we believe, 
of our success in responsibly handling these first applications.
    We also know that you are very interested in our ability to process 
license transfers expeditiously. I believe the NRC has an exemplary 
record in dealing with the complex license transfer cases that are 
coming before us. We were among the first regulators to analyze and act 
on the transfer of the Pilgrim operating license to Entergy Corporation 
from Boston Edison. We were among the first to approve the Three Mile 
Island Unit 1 transfer from GPU to Amergen, and we promptly acted on 
the Clinton transfer from Illinois Power to Amergen. There are several 
other complex licensing transfer cases before us that arise from the 
restructuring of the industry. These cases sometimes require a 
significant expenditure of energy by our staff, but we will make 
continuing efforts to assure timely resolution of those matters.
    We are also very proud of the new reactor oversight process, the 
process that we plan to use to inspect, assess and enforce regulations 
at nuclear reactors. Last year we launched a pilot program that 
involved 13 reactors at nine sites, and we learned a great deal from 
that effort. The results of the pilot program were recently presented 
to the Commission with a staff recommendation that we extend the new 
approach to the oversight of all our operating nuclear reactors. The 
revised oversight process focuses inspection efforts on those aspects 
that present the greatest risk. Moreover, performance indicators 
covering a range of areas will be available to the public, which should 
better enable the public to understand our assessment of the plants. 
The new approach also uses a significance determination process to 
classify inspection findings, thereby better allowing the NRC and the 
licensee to focus attention on the most important safety matters 
identified by the inspection. The new approach has been endorsed by a 
broad spectrum of stakeholders, and, as I indicated, the NRC intends to 
extend the new process to the entire industry. The initial 
implementation is to begin at all nuclear power plants in April 2000. 
We recognize, however, that this is a work in progress and we will have 
to make continuous adjustments.
    As the January GAO report to this subcommittee recommended, we are 
communicating with our own staff about the new oversight process and 
about our risk-informed regulatory initiatives more broadly. Intensive 
discussion of how staff concerns with the new oversight process are to 
be resolved and intensive training on the new oversight process are now 
underway. We believe that the new reactor oversight approach is a 
significant improvement over our previous regulatory oversight process, 
and the Commission is committed to making these regulatory revisions 
work.
    I also want to highlight our nuclear materials program for you. We 
have a very large number of materials-related initiatives underway. As 
with our reactor program, we are working on making our nuclear 
materials regulation more risk-informed and flexible. For example, we 
are in the final steps of totally revising our regulations governing 
the medical use of byproduct material using risk insights, together 
with other factors, to establish requirements that better focus 
licensee and regulatory attention on issues commensurate with their 
importance to health and safety. We are also revising our regulations 
governing the licensing of fuel cycle facilities to introduce the use 
of an integrated safety assessment, thereby incorporating risk insights 
into the regulation of these facilities. We are also working with the 
international community to learn about problems associated with 
facilities and materials programs abroad, most recently illustrated by 
events in Japan and Thailand.
    We continue to prepare for a possible Department of Energy 
application for a high-level waste repository at Yucca Mountain and, in 
this endeavor, we have proposed implementing regulations that we 
believe will serve to protect public health, safety and the 
environment. We have recently provided our comments to DOE on its 
Viability Assessment, Draft Environmental Impact Statement, and Draft 
Siting Guidelines for Yucca Mountain.
    We are implementing by rule a new registration program for the 
control of generally-licensed devices that have the potential to expose 
members of the public if such devices are disposed of improperly. 
Additionally, we are working with other Federal agencies and States to 
address protection of public health and safety from sources found in 
the public domain without a responsible owner, often referred to as 
``orphan sources''. Our interest in orphan sources also extends 
internationally, and the NRC has been assisting the International 
Atomic Energy Agency (IAEA) with its program of identifying and 
securing orphan sources in member countries. Finally, we have engaged 
many different stakeholders in considering the need for a rulemaking to 
establish criteria for the release of certain types of slightly 
contaminated solid material, the so-called ``clearance rule''.
    We are also continuing our efforts in decommissioning various sites 
around the country, licensing of Independent Spent Fuel Storage 
Facility Installations, certification of dry casks, and issues 
associated with the transportation of spent fuel and radioactive 
material.

                        STAKEHOLDER INVOLVEMENT

    Almost all of our initiatives, whether in the reactor or materials 
or waste programs, raise difficult issues on which our stakeholders 
have widely differing views. In recent years, the Commission has 
broadened the scope and the depth of our interaction with all 
stakeholders, whether from industry or public interest groups, whether 
from the Congress or the States. The Commission has sought stakeholder 
involvement at both staff and Commission levels in redesigning the 
oversight process for reactors, in re-writing our rules on use of 
radioactive materials in medicine, in revising our rules on fuel cycle 
facilities, and in establishing the decommissioning requirements for 
the West Valley Demonstration Project.
    In the case of the reactor oversight process that I mentioned 
earlier, we formed a formal advisory committee on which representatives 
from our various stakeholder groups met with NRC's staff. That body has 
helped us to shape the new oversight process and has helped bring a 
very broad constituency of support for the new oversight process.
    In the case of the West Valley Demonstration Project, the 
Commission interacted personally with members of the public at a 
Commission meeting in January 1999. Input received from that meeting 
was considered when the Commission prepared a draft West Valley 
decommissioning criteria policy statement which was published in the 
Federal Register in December 1999. We anticipate a final policy 
statement by the end of this year.
    Thus, we have sought to increase our interaction with the public at 
all levels. I hasten to add that we do not expect everyone to agree 
with all of our decisions. But we do believe that our decisions are 
best when they are made with as much transparency as possible. We no 
doubt can further enhance stakeholder interaction, but I can tell you 
that we are all deeply committed to improving the scope and the depth 
of stakeholder interaction. By doing so we hope to build public 
confidence in the Commission and its decisions.

                    BUDGET AND PROPOSED LEGISLATION

    To stay the course on the various initiatives that we have 
underway, we obviously need resources to do our job. The Commission has 
proposed a Fiscal Year 2001 budget of $488.1 million. This budget 
request represents approximately a 3.9 percent ($18 million) increase 
over the Fiscal Year 2000 budget, but it is still the second lowest 
budget in the history of the agency in real terms. The number of 
employees at the agency continues to decline and our budget reflects 
almost a 20 percent reduction in staff since Fiscal Year 1993. The $18 
million increase over our Fiscal Year 2000 budget is primarily for the 
pay raise that the President has authorized for Federal employees. Two 
charts reflecting a summary of our budget since Fiscal Year 1993 are 
attached to this testimony.
    This budget requires us to be very careful in judging priorities so 
that we can provide adequate resources in important areas, such as 
license renewal and license transfers and the needed preparations for a 
potential DOE application for the Yucca Mountain repository. Given the 
range of initiatives, we are stretched thin.
    The NRC has recently submitted a proposed bill for authorization of 
appropriations for Fiscal Year 2001. We respectfully request the 
committee's support for our budget request in any managers' amendment 
to S. 1627, the authorization bill which your committee reported last 
November. S. 1627 currently includes authorization at the requested 
level for our Fiscal Year 2000 budget.
    There is one feature of our budget submission that I know is of 
great interest to the subcommittee. As you know, the Commission has for 
years acknowledged that there is a legitimate fairness concern about 
the fees that are charged to our licensees. NRC licensees should not be 
charged fees for activities that are important to the Agency's mission 
but which do not directly benefit them. Such activities constitute 
about 10 percent of our budget. To address this concern, OMB has 
approved a graduated reduction of the percentage of our budget that 
must come from user fees. In Fiscal Year 2001, 98 percent of our 
budget, excluding funds from the Nuclear Waste Fund, will be recovered 
from user fees. This percentage will decrease at a rate of 2 percent 
per year to 90 percent in Fiscal Year 2005. We know we have your 
support for this approach because this committee has a very similar 
approach in S. 1627.
    I would like to conclude by touching briefly on our legislative 
program. S. 1627, as reported by the committee, included many of the 
provisions that we recommended to the committee last year. We deeply 
appreciate your support for those provisions. There are a few 
additional provisions that we would respectfully request you to 
consider.
    First, I would like to mention a provision that is an outgrowth of 
the CSIS report that Senator Graham helped prepare. It would clarify 
that the NRC has the necessary authority to deal with non-licensees who 
retain control over decommissioning funds. This relates to an issue 
that arises in connection with various license transfers. We believe we 
have authority over non-licensees who retain control over 
decommissioning funds, but the CSIS report recommended that this 
authority be made crystal clear. We agree that legislation would be 
helpful to avoid disputes over the issue and we support a provision to 
clarify the point.
    Last year we suggested that the foreign ownership and control 
provisions in the Atomic Energy Act with regard to nuclear reactors 
were no longer necessary. These provisions are not needed because the 
law will still retain clear language barring a license to any person 
if, in the Commission's opinion, the issuance of a license to such 
person would be inimical to the common defense and security or to 
public health and safety. We are confident, Mr. Chairman, that no 
inappropriate foreign entity, such as a State that supports terrorism 
or a State that is a proliferation threat, would ever pass muster under 
the revised statute, even if the prohibition on foreign ownership and 
control were to be lifted.
    Another provision involves Senator Domenici's proposed 
clarification of our authority under Section 189a. of the Atomic Energy 
Act to conduct informal hearings rather than formal trial-type 
hearings. We very much support public involvement in our licensing 
process, but we often find that informal hearings are the appropriate 
way to engage the public. For example, we are using informal hearings 
in license transfer cases under a rule that we promulgated in 1998. We 
firmly believe that we have the flexibility to determine whether to use 
formalized trial-type procedures or other, less formal hearing 
procedures and are considering revisions to our administrative hearing 
process. Nevertheless, this is another area in which the CSIS report 
recommends that our statute be clarified. Clarification could eliminate 
needless disputes over our authority to fashion appropriate hearing 
procedures, and we would support Congressional clarification on this 
matter.
    There is also a provision in our Fiscal Year 2001 authorization 
bill that will allow us to provide grants to Agreement States who need 
to oversee ``formerly licensed sites''; and to ensure that these sites 
are adequately decontaminated. Formerly licensed sites are sites for 
which the licenses were terminated, in many cases by the Atomic Energy 
Commission prior to NRC's creation, and which were never issued 
Agreement States licenses. Some Agreement States that have formerly 
licensed sites within their borders have argued that these sites remain 
the responsibility of the Federal government. Some States have 
expressed a willingness to take responsibility for site 
decontamination, but they have requested Federal funding. We believe 
that it would be efficient, fair, and in the interest of protecting 
health and safety for the Federal government to bear the costs of 
decontaminating these sites, but legislative authorization is required 
for that program. I believe our initiative has strong support in the 
States. We estimate the total cost of this proposal for fiscal year 
2001 would be $1.4 million.
    Finally, Mr. Chairman, I would note that the Commission included a 
provision in last year's request to clarify the status of NRC's 
licensees who decommission their sites pursuant to our license 
termination rule or who terminate Agreement State licenses pursuant to 
an Agreement State's version of our license termination rule. This is a 
matter on which we and the Environmental Protection Agency (EPA) have 
had a long disagreement. In 1997, after many years of effort, the 
Commission promulgated a license termination rule which set what we 
believe to be a protective standard for public health and safety and 
the environment--namely, a standard establishing an annual dose limit 
of 25 mrem for all pathways to the public. The EPA has issued guidance 
to its Regions to the effect that our rule is not sufficiently 
protective. We strongly disagree with EPA's assertion. Our rule was 
promulgated using a public process, the rule is consistent with 
international standards, and is based on sound scientific research. The 
rule ensures adequate protection of groundwater. The provision which we 
suggest for your consideration would clarify that licensees who clean 
up to our standard are not subject to CERLCA except in the rare event 
in which we or the Agreement State invite the EPA into the 
decommissioning to take advantage of CERCLA remedies. The 
Appropriations Committees have asked us to try and solve this issue 
through a Memorandum of Understanding (MOU) with EPA and we are now 
seeking to negotiate such an MOU. But if we fail, legislation would be 
the cleanest way to resolve this issue.

                               CONCLUSION

    Mr. Chairman, I have tried to present some of our pressing issues 
and accomplishments, and have requested your support for our budget and 
for our legislative programs. Let me conclude by once again thanking 
you for your interest in our activities. We will best be able to 
continue to make progress with continued interest and oversight on your 
part, and with your help on budget matters and on legislative 
initiatives. We stand ready to continue to make further changes to 
improve our regulatory programs, and we look forward to your support in 
our efforts to reach that goal.
    Thank you Mr. Chairman. We would be pleased to answer any questions 
you may have.

   RESPONSES BY RICHARD MESERVE TO ADDITIONAL QUESTIONS FROM SENATOR 
                                 INHOFE

    Question 1. DOE's failure to begin picking up spent fuel in 1998 
means utilities will rely increasingly on dry cask storage to keep 
operating their plants. How has the Commission prepared to meet the 
increasing needs for numbers of certified casks and casks that are 
certified for the types of fuel being discharged? What efforts does the 
Commission have to streamline the process for amending the cask 
certificates of compliance?
    Response. Because the time of availability of a geologic repository 
remains uncertain, the NRC staff has undertaken several initiatives to 
respond to utilities' interim spent fuel storage needs, including 
giving high priority to the review of dual-purpose cask systems that 
accommodate the need for both spent fuel storage and transportation. We 
have certified 12 generic, spent fuel storage cask designs and 
anticipate certifying 2 additional designs by the end of fiscal year 
2001. Of these 14 spent fuel storage designs, 7 will be dual-purpose 
casks. So far, 13 reactor sites are utilizing dry cask storage 
technology and 18 additional reactor sites plan to implement dry cask 
storage in the near future.
    To streamline and make the technical review process more 
predictable and stable, the NRC staff has developed a business-like 
review process that consists of: (1) assigning dedicated NRC review 
teams to each application, (2) establishing strict schedules for each 
application, (3) having no more than two rounds of written questions 
and answers, with a goal of no rounds of questions, (4) requiring 
applicants to respond completely to written questions within 60-90 
days, and having NRC staff determine the acceptability of written 
responses within two weeks of applicant response, and (5) if more than 
two rounds of questions are needed, suspending further NRC review on 
the application until completion of certification of application's 
sufficiency by the respective utility owners group.
    These review process guidelines have helped ensure that storage and 
transport portions of well-prepared applications are reviewed and 
approved within 13 months of the start of the review, an improvement of 
about one year over previous review time estimates. The staff 
anticipates that the rulemaking certification process will add an 
additional 11 months, for an overall approval schedule of approximately 
two years.
    The NRC staff is working to further improve the review and 
regulatory process. For example, the NRC staff is working with industry 
to develop implementing guidance for the recently revised 10 CFR 72.48, 
which will be effective mid fiscal year 2001. This revised regulation 
will allow certificate holders (cask vendors) to make minor, non-safety 
significant changes to their cask design without obtaining prior NRC 
approval (i.e., amending the certificate). The NRC continues to work 
with industry and other external stakeholders on regulatory and 
technical issues of mutual concern, such as shipping and storing high 
burn-up fuel, the use of burn-up credit, and certificate of compliance 
and license renewal.
    In summary, while the staff has already approved multiple spent 
fuel storage cask design options, we continue to work with industry to 
improve the regulatory process and provide safe on-site and off-site 
storage options.

    Question 2. Dual regulation of decommissioning by NRC and EPA 
continues to undermine public confidence at these sites and subjects 
the licensees to uncertainty regarding the outcome of their efforts and 
added unnecessary expenses to respond to two federal agencies on day to 
day compliance issues. What action has the Commission taken to work 
with EPA to avoid dual regulation at these sites? Has the Commission 
considered specific legislative remedies to address any impasses?
    Response. In report language to H.R. 2684, August 1999, it was 
stated that EPA should continue its policy of deferring to NRC for 
cleanup of NRC licensed sites. Both agencies were requested to report 
by May 1, 2000, on development of a Memorandum of Understanding (MOU) 
that would clarify EPA's involvement at NRC sites, when requested by 
NRC. The Commission responded to Congressional oversight committees, 
including this subcommittee, on May 1, 2000, on the status of the 
development of such an MOU and stated that it reserved any conclusion 
as to whether an MOU will be achievable. The NRC will keep the 
subcommittee informed about the status of the MOU.
    Limited progress has been made on developing an MOU. Mr. Timothy 
Fields, EPA Office of Solid Waste and Emergency Response sent a 
February 17, 2000, letter to Dr. William Travers, NRC Executive 
Director for Operations indicating that Mr. Larry Reed would serve as 
the EPA point of contact for development of the MOU. This letter 
enclosed a memorandum providing EPA guidance that is intended to 
clarify EPA's role under the Comprehensive Environmental Response, 
Compensation, and Liability Act at facilities previously or currently 
licensed by NRC. These materials provided by Mr. Fields suggested to 
NRC that the differences in each agency's policy may not be resolvable 
without legislation.
    On February 23, 2000, NRC sent a letter to EPA Administrator 
Browner that enclosed a draft MOU between EPA and NRC on the 
decommissioning and decontamination of NRC-licensed sites, consistent 
with the House Report language. The proposed draft MOU included 
provisions that the NRC would provide notice to the EPA of those cases 
in which the NRC's all-pathways residual radiation dose may exceed 
EPA's preferred all-pathways limit of 15 mrem/year and of those cases 
in which NRC requests EPA consultation. These proposals would provide 
finality, avoiding potential dual regulation for NRC-licensed sites by 
relying on the NRC's decision on license termination. Because the MOU 
is the subject of on-going negotiations between the two agencies, the 
draft MOU was not made public.
    On March 14, 2000, NRC responded to Mr. Fields' February 17, 2000, 
letter. The NRC letter requested initiation of a process that would 
lead to finalizing an MOU to eliminate dual regulation at 
decommissioning sites consistent with NRC and EPA requirements.
    On March 22, 2000, Mr. Fields, EPA, responded to the NRC letter 
indicating EPA was optimistic about the development of a workable MOU 
that would address the sites in a protective manner without dual 
regulation.
    Subsequently, each agency's representative for development of the 
MOU met on March 27, 2000, and April 24, 2000, to discuss each agency's 
policies and processes related to site decommissioning and to discuss 
options for development of an MOU. At the April 24, 2000 meeting, both 
agencies exchanged ideas concerning language for an MOU. Each agency 
agreed to meet again on May 23, 2000, which will provide an additional 
opportunity to discuss options for development of an MOU. NRC staff 
have also been meeting with EPA Office of Radiation and Indoor Air 
(ORIA) and EPA Region I to develop a protocol that addresses site-
specific cases.
    In the past, the NRC has offered legislative language which would 
amend the Comprehensive Environmental Response, Compensation, and 
Liability Act to address the Commission's concerns with dual 
regulation. In 1997, H.R. 3000 contained language in this regard that 
was acceptable to the Commission. If current efforts to create an 
acceptable MOU between the two agencies fail, the Commission would 
support a legislative solution.

    Question 3. Under current law the EPA is to propose the Nuclear 
Storage standards and then the NRC is to operate the storage facility. 
Are EPA's proposed standards workable? Will you be able to follow the 
standards and operate a storage facility?
    Response. The NRC understands this question to ask whether the 
EPA's proposed standards for disposal of high-level waste (HLW) at 
Yucca Mountain, Nevada pose licensing difficulties such that the NRC 
would not be able to make its licensing finding on a Department of 
Energy (DOE) proposal for constructing and operating a HLW repository 
at Yucca Mountain. The NRC has provided formal comments to the EPA on 
the proposed standards (see enclosed letter Travers to Page dated 
November 2, 1999) which provide detailed comments on what NRC considers 
to be fundamental flaws in the proposed rule. Many of the requirements 
in the proposed rule, if included in the final rule, may add 
significant cost and burden to the license application process. They 
would also significantly increase the complexity of the NRC's licensing 
process without a commensurate, if any, increase in the protection of 
public health and safety and the environment.
    The NRC considers the inclusion of separate ground-water protection 
requirements in the proposed standard inappropriate because these 
requirements would result in non-uniform risk levels and would far 
exceed what is needed for protection of public health and safety.
    The NRC considers the imposition of a 15 mrem per year individual 
dose limit from all pathways in the proposed standard inappropriate 
because this dose limit, in contrast to the NRC's proposed limit of 25 
mrem/year, will unnecessarily increase the conservatism of the dose 
assessment without a commensurate benefit to the protection of public 
health and safety.
                                 ______
                                 
                                          November 2, 1999.
Mr. Stephen D. Page, Director,
Office of Radiation and Indoor Air,
U.S. Environmental Protection Agency,
Washington, DC.
    Dear Mr. Page: This letter provides the comments of the U.S. 
Nuclear Regulatory Commission (NRC) staff on the Notice of Proposed 
Rulemaking, ``Environmental Radiation Protection Standards for Yucca 
Mountain, Nevada'' (64 FR 46976) at proposed 40 CFR Part 197. As the 
Agency responsible for licensing a possible repository at Yucca 
Mountain, Nevada, the NRC is concerned that the standards exhibit a 
sound scientific and technical basis and that the need for the 
standards adopted be fully justified on health and safety grounds. The 
NRC staff disagrees with the need for, and health and safety basis of, 
some of the requirements in the proposed standards. In addition, the 
NRC staff is concerned that EPA has not provided any analysis of the 
costs and benefits of its approach to regulating radioactive waste 
disposed at Yucca Mountain. The staff's objections to the proposed 
standards are given below and in the enclosure to this letter.
    1. The NRC staff objects to the inclusion of separate ground-water 
protection requirements for the proposed repository at Yucca Mountain 
because these requirements would result in non-uniform risk levels, 
they misapply the Maximum Contaminant Levels for radionuclides, and 
they far exceed what is needed for protection of public health and 
safety.
    Although Maximum Contaminant Levels (MCLs) may have been considered 
reasonable standards during their development in 1975, current 
understanding of the risk posed to individual organs by radiation 
exposure demonstrates that the MCLs for individual radionuclides 
provide a level of protection that varies significantly. For example, 
consider the annual risk of developing a fatal cancer from drinking 
water that contains Neptunium-237 (Np-237) and Iodine-129 (I-129) at 
their respective MCL. The risk of developing a fatal cancer from 
ingestion of Np-237 at its MCL is 30 chances in 1,000,000 (3  x  
10-5), while the risk from ingestion of I-129 at its MCL is 
0.07 chance in 1,000,000 (7  x  10-8). More than a four-
hundred fold difference exists between the risk levels prescribed for 
these two radionuclides. Therefore, this simple comparison shows an 
application of MCLs that results in non-uniform risk levels which are 
likely to lead to greater confusion about the level of risk which is 
acceptable and attainable, rather than confidence that the health and 
safety of the public are being protected. It is our understanding that 
there are no EPA efforts currently underway to modify the MCLs to 
ensure a uniform risk level.
    The EPA does not demonstrate a need for such an overly 
conservative, separate groundwater limit to protect public health and 
safety. The all-pathway dose limit, by definition, ensures that risks 
from all radionuclides and all exposure pathways, including the 
groundwater pathway, are acceptable and protective. All radionuclides 
and all exposure pathways will have to be acceptably evaluated at Yucca 
Mountain, and will have to meet an individual protection standard that 
is fully protective of public health and safety and the environment. 
Therefore, the proposed standard should not contain separate ground-
water protection requirements because they are unnecessary for 
protection of public health and safety and because they lead to 
inconsistent and unreconcilable results as described above, which we 
believe will cause confusion and diminish rather than enhance public 
confidence that adequately protective limits have been established.
    Certain MCLs maintain a risk level so small that the individual, 
all-pathway dose limit is meaningless. EPA has proposed an annual, 
individual dose limit of 0.15 mSv (15 mrem) which is equivalent to an 
annual risk of developing a fatal cancer of 9 chances in 1,000,000 (9 
x  10-6).\1\ The MCL for I-129 (annual risk of 0.07 chance 
in 1,000,000) is more than 100 times below the risk of the individual 
dose limit. Consequently, the groundwater protection criteria become 
the de facto standards instead of the individual protection limit 
called for by the Energy Policy Act of 1992 (EnPA--Public Law 102-486).
---------------------------------------------------------------------------
    \1\ This value was calculated by EPA's use of NCRP Report No. 126 
risk value of 6  x  10-2 health effects per Sievert (SV) [6 
x  10-4 health effects per rem] and the NAS recommendations 
for an annual risk limit.
---------------------------------------------------------------------------
    The EPA's current proposal is a continuation of EPA's practice of 
using the MCLs without appropriate justification. Specifically, EPA 
would have NRC require that groundwater in the vicinity of Yucca 
Mountain meet EPA's MCL, originally established to implement the Safe 
Drinking Water Act (SDWA). The MCLs were based on an analysis of 
treating contaminated water in public drinking water systems subject to 
the SDWA and not on an analysis of technology and costs of remediating 
groundwater at actual sites. In this rule, EPA proposes to apply the 
same MCLs to groundwater supplies before treatment rather than ``at the 
tap'' after treatment. Therefore, in the absence of an appropriate and 
comprehensive cost-benefit analysis, EPA should not require the 
expenditure of potentially significant amounts of taxpayer money to 
prevent potential contamination of groundwater that may require 
treatment prior to use anyway. Instead, EPA's standards should permit a 
decision to spend much smaller sums for water treatment in the event 
that such contamination should occur. Finally, EPA's application of 
MCLs at DOE's Waste Isolation Pilot Plant (WIPP) site in New Mexico 
should not be considered a precedent for the Yucca Mountain site since 
the WIPP site is located in a salt formation and lacks potable 
groundwater making the application of MCLs irrelevant.
    Furthermore, the NRC staff is troubled by the discussion of ground-
water protection that suggests additional options that are not 
representative of ground-water conditions at Yucca Mountain and further 
increase the conservatism in applying these unnecessary separate 
requirements. The preamble to the standard requests comment on 
alternative dilution volumes that are extremely small (e.g., 10 and 120 
acre-feet). These dilution volumes are not reflective of the resource 
to be protected (the EPA states the representative volumetric flow is 
4000 acre-ft/year for the sub-basin in which the proposed repository is 
located). The standard also requests comment on alternative locations 
for determining compliance (e.g., 5 kilometers) that are similarly not 
reflective of the resource. As explained in connection with the 
compliance location for the individual protection (e.g., 20 
kilometers), cautious and reasonable assumptions for lifestyles and the 
practicality of obtaining water provide no basis for identifying the 5 
kilometer location for protection of ground water.
    Is there a better approach? Yes. An individual, all-pathway dose 
limit of 0.25 mSv (25 mrem) total effective dose equivalent (TEDE) 
properly accounts for the radiation sensitivity of individual organs, 
and ensures the risks from all radionuclides and all exposure pathways 
are acceptable and protective.
    2. The NRC staff objects to those portions of the proposed standard 
that address technical matters of compliance determination and 
implementation--matters which Congress has assigned to the NRC, not to 
the EPA.
    In the proposed rule, there are many requirements where the EPA has 
inappropriately assumed the Commission's responsibility. For example, 
the EPA introduces a new term, ``reasonable expectation,'' in place of 
the Commission's term, ``reasonable assurance.'' Confidence that the 
U.S. Department of Energy (DOE) has or has not demonstrated compliance 
with the EPA's standards is the essence of NRC's licensing process, and 
is the Commission's responsibility. The NRC has effectively used 
``reasonable assurance'' in licensing a variety of atomic energy 
activities. The reasonable assurance standard is derived from the 
finding the Commission is required to make under the Atomic Energy Act 
that the licensed activity provides ``adequate protection'' to the 
health and safety of the public; the standard has been approved by the 
Supreme Court. Power Reactor Development Co. v. Electrical Union, 367 
U.S. 396, 407 (1961). This standard, in addition to being commonly used 
and accepted in the Commission's licensing activities, allows the 
flexibility necessary for the Commission to make judgmental 
distinctions with respect to quantitative data which may have large 
uncertainties. The NRC staff has incorporated this concept of 
reasonable assurance in its development of implementing regulations for 
Yucca Mountain (Proposed 10 CFR Part 63).
    A second example is the EPA's requirement that the dose should be 
calculated to the ``reasonably maximally exposed individual'' (RMEI). 
The RMEI is the EPA's proposal of a technical criterion for determining 
whether the standard will achieve its purpose of protecting the 
individuals most likely to receive doses from any releases from the 
repository. The RMEI is untested in NRC's licensing process, and 
involves a matter of implementation within the NRC's statutory 
responsibilities. The NRC staff, consistent with the National Academy 
of Science (NAS) recommendations and international practice, intends to 
use the ``average member of the critical group'' approach to determine 
the population that should be the focus in implementation of the 
individual protection standard. The EPA should conform to the 
recommendations of the NAS and international practice by adopting the 
use of the ``average member of the critical group.'' [Comments on other 
examples of the EPA's intrusion into implementation matters are 
provided in the Enclosure to this letter.]
    3. The NRC staff objects to the imposition of a 0.15 mSv (15 mrem) 
per year individual dose limit from all pathways, because this lower 
dose limit will unnecessarily increase the conservatism of the dose 
assessment.
    An annual all-pathways individual dose limit of 0.25 mSv (25 mrem) 
is fully protective of public health and safety and is a suitable 
standard for a potential repository at Yucca Mountain. The 0.25 mSv/
year (25 mrem/year) limit represents a small fraction of the national 
and international public dose limit of 1 mSv/year (100 mrem/year) and 
provides a level of radiation protection that is consistent with our 
and EPA's regulations for related activities (e.g., low-level, high-
level, and transuranic waste management, storage, and disposal; spent 
fuel storage and disposal). Although the EPA rule proposes a lower 
limit of 0.15 mSv (15 mrem), and the difference between 0.15 and 0.25 
mSv (15 and 25 mrem) is small, the lower value is not necessary for 
protection of public health and safety and would provide little, if 
any, reduction in health risk when compared with 0.25 mSv (25 mrem). It 
is also important to consider that the average American receives 
approximately 3 mSv/yr (300 mrem/yr) from natural background radiation. 
In addition to the lack of public health and safety benefit, there are 
regulatory concerns associated with lowering the dose limit to 0.15 mSv 
(15 mrem). Specifically, as the dose limit becomes smaller, limitations 
in the DOE's models used for estimating performance, and the associated 
uncertainties in supporting analyses, become more pronounced. Further, 
a 0.15 mSv (15 mrem) dose limit is likely to cause unnecessary 
confusion for the public and cause the NRC to expend resources without 
a commensurate increase in public health and safety.
    In addition to the above objections to provisions proposed in 40 
CFR Part 197, the NRC staff also provides responses to the EPA's 
solicitation for input on specific questions annotated in Section IV of 
the ``Supplementary Information'' text. These responses are provided in 
the enclosure to this letter.
    In summary, the NRC staff believes there are fundamental flaws in 
the proposed rule which EPA should reconsider before finalizing the 
rule. Moreover, many of the requirements in the proposed rule will, if 
included in the final rule, add significant cost and burden to the DOE 
license application process and significantly increase the complexity 
of the NRC's licensing process without a commensurate, if any, increase 
in the protection of public health and safety and the environment. The 
NRC staff will attend the EPA-sponsored public meetings on the proposed 
Yucca Mountain Standard and may provide further comments, if warranted.
            Sincerely,
                                        William D. Travers,
                                 Executive Director for Operations.
                               __________

COMMENTS ON PROPOSED U.S. ENVIRONMENTAL PROTECTION AGENCY STANDARDS FOR 
                    YUCCA MOUNTAIN (40 CFR PART 197)

          UNWARRANTED SPECIFICATION OF IMPLEMENTATION CRITERIA

    The U.S. Nuclear Regulatory Commission (NRC) staff objects to those 
portions of the proposed standard that address technical matters of 
compliance determination and implementation--matters assigned to NRC's 
jurisdiction and responsibility. The NRC staff offers the following 
comments on specific portions of the standard that prescribe 
implementation and/or solicit comment on implementation:

(A) Use of Reasonable Expectation
    The U.S. Environmental Protection Agency (EPA) proposes to 
``establish minimum requirements for implementation'' by requiring the 
NRC to use reasonable expectation as a basis for determining 
compliance. The NRC staff objects to the EPA's intrusion into an area 
of implementation related to making a license determination. The NRC 
has the sole licensing responsibility to determine compliance of the 
U.S. Department of Energy's (DOE's) license application with pertinent 
regulations and standards. The EPA has no authority to define how the 
NRC should make its licensing decision and should remove language that 
presumes to prescribe matters of NRC implementation.
    Furthermore, the EPA incorrectly portrays how the NRC makes its 
licensing decisions. The EPA wrongly asserts that use of ``reasonable 
assurance'' as a basis for judging compliance would force the NRC to 
focus on extreme values (i.e., ``tails of distributions'') for 
representing the performance of a Yucca Mountain repository. This is 
not correct for the proposed repository at Yucca Mountain. Over the 
last several years, the Commission has clearly articulated how 
performance analyses are to be conducted to assist the NRC's goal of 
protecting health and safety. The Commission's Final Policy Statement 
on the ``Use of Probabilistic Risk Assessment Methods in Nuclear 
Regulatory Activities'' (FRN Volume 60, Number 158, August 16, 1995) 
stated that use of probabilistic risk assessment (PRA), which includes 
performance assessment for waste management systems, should: (1) reduce 
unnecessary conservatism; and (2) be as realistic as practicable when 
supporting regulatory decisions. In particular, the NRC's proposed 
implementing regulation for disposal of high-level waste at Yucca 
Mountain (10 CFR Part 63) propounds a comparison of the average or mean 
dose with the individual dose limit to determine compliance. The NRC's 
draft Branch Technical Position on Performance Assessment for Low-Level 
Waste Disposal Facilities (FRN May 29, 1997, Volume 62, Number 103) 
also uses an average dose as the basis for comparison with the dose 
limit. The NRC has made it clear that it does not focus on extreme 
values but rather is evaluating expected doses. The EPA should remove 
language that incorrectly portrays the NRC's use of reasonable 
assurance.

(B) Specification of the Reasonably Maximally Exposed Individual (RMEI)
    The EPA proposes that the RMEI be used for making dose estimates 
and also prescribes the approach to be used for determining the diet, 
and specifies the water intake volume of the RMEI. The EPA should not 
require use of the RMEI, but instead endorse use of the more widely-
accepted critical group (CG) concept, consistent with the National 
Academy of Sciences (NAS) recommendations (see also the NRC staff 
response to the EPA's question #3). Specification of attributes or 
characteristics of the RMEI or how these attributes or characteristics 
are to be determined should not be prescribed in the standards, but 
left to the NRC's implementing regulation (see also NRC staff responses 
to EPA's questions #4, 5, and 6).

(C) Specification of the Stylized Calculation for Human Intrusion
    Prescription of the stylized calculation for evaluating human 
intrusion should not be part of the EPA standards. Specification of the 
stylized calculation more appropriately belongs in the NRC's 
implementing regulations (see also the NRC staff response to the EPA's 
question #10). Additionally, the standards include an alternative for 
evaluating human intrusion beyond 10,000 years in the event an 
intrusion is not likely in the initial 10,000 years. The EPA should 
prescribe only the standard that is to be met and should not stipulate 
implementation details for what constitutes compliance with the 
standard.

(D) Request for Comment on Inclusion of Assurance Requirements
    It is unnecessary for the EPA to establish additional qualitative 
``assurance requirements'' to ``add confidence that the Yucca Mountain 
disposal system will achieve the level of protection proposed in the 
quantitative standards.'' The degree of confidence that the NRC must 
have, in assessing whether the DOE's compliance demonstration satisfies 
applicable requirements, including the EPA disposal standards, is 
inherently an implementation matter for the NRC licensing requirements 
and licensing process to determine. Further NRC staff response to this 
specific request is provided later in this document.

(E) Request for Comment on Inclusion of Requirements for Use of Expert 
        Opinion
    It is unnecessary for the EPA to set guidelines for the use of 
expert opinion in its standards for Yucca Mountain. The NRC's licensing 
requirements and licensing process will govern the DOE's use of expert 
opinion in the development of its licensing case for a repository at 
Yucca Mountain. Further NRC staff response to this specific request is 
provided later in this document.
    The NRC requests that those portions of the proposed standards that 
address the foregoing technical matters of compliance determination and 
implementation be removed or, at a minimum, that they acknowledge that 
the NRC, as the implementing authority, is not bound by implementation 
details that are contained in the standards. Additionally, the section 
entitled, ``Who Will Be Regulated by These Standards?'' should: (1) 
properly define the EPA role in standard development; (2) accurately 
describe the NRC's authority to establish technical requirements that 
are consistent with the EPA standards; and (3) acknowledge the time 
constraints established by the U.S. Congress that require the NRC to 
promulgate its rule within one year after the EPA issues its final 
standards.

 RESPONSES TO SPECIFIC QUESTIONS FOR COMMENT IN THE PROPOSED STANDARDS

    Question 1. The NAS recommended that we base the individual-
protection standard upon risk. Consistent with this recommendation and 
the statutory language of the Energy Policy Act of 1992, we are 
proposing a standard in terms of annual committed effective dose 
equivalent (CEDE) incurred by individuals. Is our rationale for this 
aspect of our proposal reasonable?
    Response. Yes. The individual-protection standard should be 
specified in terms of an annual CEDE limit. The use of an ``effective'' 
dose limit correctly accounts for the variation in risk levels 
associated with different organs. Not using an effective dose provides 
widely varying degrees of protection depending on the organ and 
radionuclides used in the exposure scenario.

    Question 2. We are proposing an annual limit of 150 Sv [equivalent 
to 0.15 mSv (15 mrem)] CEDE to protect the reasonably, maximally 
exposed individual (RMEI) and the general public from releases from 
waste disposed of in the Yucca Mountain disposal system. Is our 
proposed standard reasonable to protect both individuals and the 
general public?
    Response. No. An annual all-pathways individual dose limit of 0.25 
mSv (25 mrem) is fully protective of public health and safety and is a 
more appropriate standard for a potential repository at Yucca Mountain. 
The 0.25 mSv/yr (25 mrem/yr) limit represents a small fraction of the 
national and international public dose limit of 1.0 mSv (100 mrem/yr) 
and provides a level of radiation protection that is consistent with 
our and EPA's regulations for related activities (e.g., low-level, 
high-level, and transuranic waste management, storage, and disposal; 
spent fuel storage and disposal). Although the EPA rule proposes a 
lower limit of 0.15 mSv (15 mrem), and the difference between 0.15 and 
0.25 mSv (15 and 25 mrem) is small, the lower value is not necessary 
for protection of public health and safety and would provide little, if 
any, reduction in health risk when compared to 0.25 mSv (25 mrem). It 
is also important to consider that the average American receives 
approximately 3 mSv/year (300 mrem/yr) from natural background 
radiation. In addition to the lack of public health and safety benefit, 
there are regulatory concerns associated with lowering the dose limit 
to 0.15 mSv (15 mrem). Specifically, as the dose limit becomes smaller, 
limitations in the DOE's models used for estimating performance, and 
the associated uncertainties in supporting analyses, become more 
pronounced. Further, a 0.15 mSv (15 mrem) dose limit is likely to cause 
unnecessary confusion for the public and cause the NRC to expend 
resources without a commensurate increase in public health and safety.
    A single, all-pathway standard is protective of both individuals 
and the general public health when the standard is applied to a CG 
(i.e., those individuals in the population expected to receive the 
highest dose equivalent using cautious but reasonable assumptions). An 
annual limit of 0.25 mSv (25 mrem) applied to the average member of the 
CG is protective of individuals in the CG. The general public is 
comprised of the individuals within the CG group as well as all other 
individuals residing in the Yucca Mountain area who are not part of the 
CG (e.g., the DOE has considered individuals living within 80 km (50 
miles) of the Yucca Mountain site for evaluating population doses in 
the Draft Environmental Impact Statement). Individuals within the CG 
will have estimated doses higher (i.e., at least 3-5 times higher) than 
individuals outside the CG. The dose limit is protective of individuals 
in the CG and is also protective of individuals outside the CG for whom 
doses will be lower.

    Question 3. To define who should be protected by the proposed 
individual-standard, we are proposing to use a RMEI as the 
representative of the rural-residential CG. Is our approach reasonable? 
Would it be more useful to have the DOE calculate the average dose 
occurring within the rural-residential CG rather than the RMEI dose?
    Response. The NRC staff endorses the NAS recommendation for use of 
the average member of the CG as a basis for comparison with the risk 
limit.
    The NRC staff disagrees with the EPA's use of ``a RMEI as the 
representative of the rural-residential CG'' because: (1) it 
unnecessarily confuses the CG concept, recommended by the NAS, by 
advancing a second, less widely-used, concept (i.e., RMEI); (2) the CG 
concept has been accepted both internationally and nationally and thus 
has meaning to a wider audience than the RMEI; and (3) specification of 
a particular group (i.e., rural-residential RMEI) is a matter of 
implementation to be determined in the NRC's implementing regulation. 
NRC routinely employs the CG approach in its licensing actions and for 
other regulatory applications (e.g., as part of our LLW and 
Decommissioning programs). We are also aware of documented applications 
of the CG approach by state regulatory authorities and by regulatory 
authorities in the United Kingdom, Sweden, Switzerland, and Canada. The 
EPA should replace the ``RMEI'' with the ``average member of the CG'' 
and remove any reference to the particular characteristics of the CG.

    Question 4. Is it reasonable to use the RMEI parameter values based 
upon characteristics of the population currently located in proximity 
to Yucca Mountain? Should we promulgate specific parameter values in 
addition to specifying the exposure scenarios?
    Response. The NRC staff agrees with the NAS recommendation that 
specification of the CG is to be based on cautious but reasonable 
assumptions. In doing so, it is appropriate to use present day 
knowledge of the habits and characteristics of the local population in 
the vicinity of Yucca Mountain to inform the specification of the CG.
    That being said, however, the NRC staff objects to specification of 
parameters of the exposure scenario because they are matters of 
implementation that are to be determined in the NRC's implementing 
regulation. Additionally, detailed specification of exposure parameters 
at this time unnecessarily pre-judges ongoing efforts by the DOE to 
collect information in the Yucca Mountain vicinity relevant to exposure 
scenarios.

    Question 5. Is it reasonable to consider, select, and hold constant 
today's known and assumed attributes of the biosphere for use in 
projecting radiation-related effects upon the public of releases from 
the Yucca Mountain disposal system?
    Response. Yes. As explained in the NRC's proposed 10 CFR Part 63, 
it is appropriate to hold constant today's known and assumed attributes 
of the biosphere. Specification of assumed attributes of the biosphere 
is a matter of implementation that should be accomplished in the NRC's 
implementing regulations.
    The NAS recognized the difficulties in forecasting the 
characteristics of future society, especially those influencing 
exposure, and recommended specification of exposure scenario 
assumptions. The NAS indicated the purpose for making the exposure 
scenario assumptions was to provide a framework for evaluation of 
repository performance and not to identify or predict possible futures.

    Question 6. In determining the location of the RMEI, we considered 
three geographic subareas and their associated characteristics. Are 
there other reasonable methods or factors which we could use to change 
the conclusion we reached regarding the location of the RMEI? For 
example, should we require an assumption that for thousands of years 
into the future people will live only in the same locations that people 
do today? Please include the rationale for your suggestions.
    Response. The NAS recommended that cautious and reasonable 
assumptions be used in defining an assumed exposure scenario, including 
the compliance location. The EPA should not go beyond considerations 
that are cautious and reasonable. Specification of additional 
assumptions for determining the compliance location are unnecessary. 
The NRC staff recognizes that the EPA has a need to discuss who is 
being protected by their standard. However, specification of the 
exposure scenario is a matter of implementation, and specification of 
the compliance location should be determined in the NRC's implementing 
regulation.

    Question 7. The NAS suggested using a negligible incremental risk 
level to dismiss from consideration extremely low, incremental levels 
of dose to individuals when considering protection of the general 
public. For somewhat different reasons, we are proposing to rely upon 
the individual-protection standard to address protection of the general 
population. Is this approach reasonable in the case of Yucca Mountain? 
If not, what is an alternative, implementable method to address 
collective dose and the protection of the general population?
    Response. Yes, it is reasonable to rely on an all-pathway, 
individual protection standard. We agree with the NAS that ``a health-
based individual standard will provide a reasonable standard for 
protection of the general public'' (p. 65 of NAS report). By 
definition, it will ensure that every member of the general public will 
not receive more than the individual dose limit and is therefore 
protected. Additional regulatory criteria limiting collective dose are 
unnecessary for the protection of public health and safety and should 
not be included in the final EPA standards for Yucca Mountain.

    Question 8. Is our rationale for the period of compliance 
reasonable in light of the NAS recommendations?
    Response. Yes. A 10,000-year compliance period is reasonable for 
the reasons identified in the NRC's proposed criteria at 10 CFR Part 
63. The fact that it is feasible to calculate performance of the 
engineered and geologic barriers making up the repository system, for 
periods much longer than 10,000 years, does not mean that it is 
possible to make realistic or meaningful projections of human exposure 
and risk, attributable to releases from the repository over comparable 
time frames. NAS acknowledged that projecting the behavior of human 
society over long periods is beyond the limits of scientific analysis 
and recommended that ``cautious, but reasonable'' assumptions, based 
upon current knowledge, be made with regard to the selection of 
biosphere and CG parameters for Yucca Mountain. Determining just how 
far into the future current knowledge can no longer support 
``reasonable'' assumptions about pathways affecting human exposure is 
clearly a subjective, policy judgment. The NRC staff believes that, for 
periods approaching 1,000,000 years, as suggested by NAS, during which 
significant climatic and even human evolution would almost certainly 
occur, it is all but impossible to make useful and informed assumptions 
about human behaviors and exposure pathways. The NAS explicitly 
acknowledged that selection of a time period over which compliance 
should be evaluated necessarily involves both technical and policy 
considerations (p. 56 of NAS report). We believe sound reasons--
technical, policy, and practical--support the designation of a 10,000-
year compliance period for evaluating compliance with an all-pathway, 
individual protection standard.

    Question 9. Does our requirement that the DOE and the NRC determine 
compliance with Sec. 197.20, based upon the mean of the distribution of 
the highest doses resulting from the performance assessment, adequately 
address uncertainties associated with performance assessments?
    Response. Although the NRC staff agrees with the use of the mean of 
the distribution, we object to the EPA prescription of a specific 
statistical parameter that the NRC must use to evaluate compliance with 
the standard. Specification of approaches for determining compliance, 
given the uncertainties associated with performance assessment, is 
strictly a matter of implementation that is properly addressed in the 
NRC's regulation.

    Question 10. Is the single-borehole scenario a reasonable approach 
to judge the resilience of the Yucca Mountain disposal system following 
human intrusion? Are there other reasonable scenarios which we should 
consider, for example, using the probability of drilling through a 
waste package based upon the area of the package versus the area of the 
repository footprint or drilling through an emplacement drift but not 
through a waste package? Why would your suggested scenario(s) be a 
better measure of the resilience of the Yucca Mountain disposal system 
than the proposed scenario?
    Response. Specification of a calculation for the NRC to use to 
evaluate the consequences of human intrusion on repository performance 
is a matter of implementation to be determined by the NRC. The NRC has 
proposed implementing regulations at 10 CFR Part 63, that include a 
proposal for evaluating the consequences of an assumed intrusion 
scenario, on which we have received significant comment. We will fully 
consider these comments prior to finalizing the rule. The EPA should 
eliminate the separate provisions for evaluating human intrusion by 
deleting Sec. Sec. 197.25 and 197.26.

    Question 11. Is it reasonable to expect that the risks to future 
generations be no greater than the risks judged acceptable today?
    Response. Yes. The NRC staff agrees with the basic principle that 
individuals in the future should be afforded a level of protection from 
actions taken today that is comparable to that found acceptable for the 
current generation. The primary objective of geologic disposal of high-
level radioactive wastes is the protection of current and future 
generations from the radiological hazards posed by the wastes produced 
by the current generation. The NRC has long supported the national 
strategy to pursue deep geologic disposal in the belief that the 
current generation's responsibilities to provide comparable protection 
to future generations are better fulfilled by pursuit of long-term 
disposal than by indefinite reliance on temporary storage strategies. 
That being said, however, the NRC acknowledges that permanent, complete 
isolation is unlikely to be achieved by any repository at any site, 
including Yucca Mountain, and that some fraction of the waste inventory 
can be expected to migrate to the biosphere, giving rise to potential 
exposures thousands, or even hundreds of thousands of years in the 
future. Doses and risks to individuals over these very long time frames 
can only be estimated, and the reliability of such estimates 
diminishes, the further into the future they are calculated. Because 
doses and risks cannot be forecast with any certainty into the 
indefinite future and must instead rely on cautious, but reasonable 
assumptions, as noted by the NAS, it is only appropriate to use such 
estimates to evaluate whether a proposed repository system is adequate, 
over a compliance period within which those assumptions continue to be 
reasonable. For the reasons cited or referenced in the response to 
Question 8, the NRC staff believes 10,000 years is an appropriate 
compliance period.

    Question 12. What approach is appropriate for modeling the 
groundwater flow system down-gradient from Yucca Mountain at the scale 
(many kilometers to tens of kilometers) necessary for dose assessments, 
given the inherent limitations of characterizing the area? Is it 
reasonable to assume that there will be some degree of mixing with 
uncontaminated groundwater along the radionuclides travel paths from 
the repository?
    Response. Determination of the appropriate model for groundwater 
flow will be an important part of the NRC's review of a possible DOE 
license application. It is inappropriate for the EPA to prescribe any 
degree of belief in potential modeling approaches that could be part of 
the DOE's license application.

    Question 13. Which approach for protecting ground water in the 
vicinity of Yucca Mountain is the most reasonable? Is there another 
approach which would be preferable and reasonably implementable? If so, 
please explain the approach, why it is preferable, and how it could be 
implemented.
    Response. Although Maximum Contaminant Levels (MCLs) may have been 
considered reasonable standards during their development in 1975, 
current understanding of the risk posed to individual organs by 
radiation exposure demonstrates that the MCLs for individual 
radionuclides provide a level of protection that varies significantly. 
For example, consider the annual risk of developing a fatal cancer \2\ 
from drinking water that contains Neptunium-237 (Np-237) and Iodine-129 
(I-129) at their respective MCL. The risk of developing a fatal cancer 
from ingestion of Np-237 at its MCL is 30 chances in 1,000,000 (3  x  
10-5),\3\ while the risk from ingestion of I-129 at its MCL 
is 0.07 chance in 1,000,000 (7  x  10-8).\4\ More than a 
four-hundred fold difference exists between the risk levels prescribed 
for these two radionuclides. Therefore, this simple comparison shows an 
application of MCLs that results in non-uniform risk levels which are 
likely to lead to greater confusion about the level of risk which is 
acceptable and attainable, rather than confidence that the health and 
safety of the public are being protected.
---------------------------------------------------------------------------
    \2\ The annual risk of developing a fatal cancer is 60 chances in 
1,000,000 (6  x  10-5) per mSv of exposure.
    \3\ Based on a concentration of 15 picocuries per liter.
    \4\ Based on a 0.04 mSv( 4 mrem) exposure to the thyroid.
---------------------------------------------------------------------------
    Certain MCLs maintain a risk level so small that the individual, 
all-pathway dose limit is meaningless. EPA has proposed an annual, 
individual dose limit of 0.15 mSv (15 mrem) which is equivalent to an 
annual risk of developing a fatal cancer of 9 chances in 1,000,000 (9 
x  10-6). The MCL for I-129 (annual risk of 0.07 chance in 
1,000,000) is more than 100 times below the risk of the individual dose 
limit. Consequently, the ground-water protection criteria become the de 
facto standards instead of the individual protection limit called for 
by the EnPA.
    The EPA's current proposal is a continuation of EPA's practice of 
using the MCLs without appropriate justification. Specifically, EPA 
would have NRC require that groundwater in the vicinity of Yucca 
Mountain meet EPA's MCL, originally established to implement the Safe 
Drinking Water Act (SDWA). The MCLs were based on an analysis of 
treating contaminated water in public drinking water systems subject to 
the SDWA and not on an analysis of technology and costs of remediating 
groundwater at actual sites. In this rule, EPA proposes to apply the 
same MCLs to groundwater supplies before treatment rather than ``at the 
tap'' after treatment. Therefore, in the absence of an appropriate and 
comprehensive cost-benefit analysis, EPA should not require the 
expenditure of potentially significant amounts of taxpayer money to 
prevent potential contamination of groundwater that may require 
treatment prior to use anyway. Instead, EPA's standards should permit a 
decision to spend much smaller sums for water treatment in the event 
that such contamination should occur. Finally, EPA's application of 
MCLs at DOE's Waste Isolation Pilot Plant (WIPP) site in New Mexico 
should not be considered a precedent for the Yucca Mountain site since 
the WIPP site is located in a salt formation and lacks potable 
groundwater making the application of MCLs irrelevant.
    The EPA does not demonstrate a need for such overly conservative, 
separate ground-water limit to protect public health and safety. The 
all-pathway dose limit, by definition, ensures that risks from all 
radionuclides and all exposure pathways, including the groundwater 
pathway, are acceptable and protective. All radionuclides and all 
exposure pathways will have to be acceptably evaluated at Yucca 
Mountain, and will have to meet an individual protection standard that 
is fully protective of public health and safety and the environment. 
Therefore, the proposed standard should not contain separate ground-
water protection requirements because they are unnecessary for 
protection of public health and safety and because they lead to 
inconsistent and unreconcilable results as described above, which we 
believe will cause confusion and diminish rather than enhance public 
confidence that adequately protective limits have been established.
    Furthermore, the NRC staff is troubled by the discussion of ground-
water protection that suggests additional options that are not 
representative of ground-water conditions at Yucca Mountain and further 
increase the conservatism in applying these unnecessary separate 
requirements. The preamble to the standard requests comment on 
alternative dilution volumes that are extremely small (e.g. 10 and 120 
acre-feet). These dilution volumes are not reflective of the resource 
to be protected (the EPA states the representative volumetric flow is 
4000 acre-ft/year for the sub-basin in which the proposed repository is 
located). The standard also requests comment on alternative locations 
for determining compliance (e.g., 5 kilometers) that are similarly not 
reflective of the resource. As explained in connection with the 
compliance location for the individual protection (e.g., 20 
kilometers), cautious and reasonable assumptions for lifestyles and the 
practicality of obtaining water provide no basis for identifying the 5 
kilometer location for protection of ground water.
    Is there a better approach? Yes. An individual, all-pathway dose 
limit of 0.25 mSv (25 mrem) total effective dose equivalent (TEDE) 
properly accounts for the radiation sensitivity of individual organs, 
and ensures the risks from all radionuclides and all exposure pathways 
are acceptable and protective.

    Question 14. Is the 10,000-year compliance period for protecting 
the RMEI and groundwater reasonable or should we extend the period to 
the time of peak dose? If we extend it, how could the NRC reasonably 
implement the standards while recognizing the nature of the 
uncertainties involved in projecting the performance of the disposal 
system over potentially extremely long periods?
    Response. Yes, 10,000 years is a reasonable time period for 
evaluating compliance with an all-pathway individual protection 
standard for the reasons stated in the answer to Question 8 (above). 
For reasons stated in response to Question 3, we disagree with the 
EPA's use of the RMEI construct. For reasons given at Question 13, 
inclusion of separate groundwater protection criteria is unnecessary 
regardless of the compliance period applied.

    Question 15. As noted by the NAS, some countries have individual-
protection limits higher than we have proposed. In addition, other 
Federal authorities have suggested individual-dose limits with no 
separate protection of groundwater. Therefore, we request comment upon 
the use of an annual CEDE of 0.25 mSv (25 mrem) with no separate 
groundwater protection, including the consistency of such a limit with 
our groundwater protection policy.
    Response. The NRC staff believes that the application of a single, 
all-pathway standard is fully protective of public health and safety, 
and obviates the need for separate, single pathway limits. The purpose 
of a post-closure performance objective for a repository at Yucca 
Mountain is to ensure that members of the public will not receive 
doses, from all possible sources, exclusive of background radiation, in 
excess of 1 milliSievert (mSv) or 100 millirem (mrem) per year. 1 mSv 
(100 mrem) per year is the public dose limit established by the 
Commission at 10 CFR Part 20 and is the radiation protection basis upon 
which the Commission licenses all operating nuclear facilities. A limit 
of 0.25 mSv (25 mrem) to the TEDE, received in a year by the average 
member of the CG would limit the dose received from all possible 
pathways to the CG at Yucca Mountain, including direct exposure, 
drinking of contaminated water, eating food that was irrigated with 
contaminated groundwater or grown in contaminated soil, exposure to 
airborne releases, etc. The Commission established the 0.25 mSv (25 
mrem) annual dose limit as the overall safety objective for both 
decommissioning of nuclear facilities (at 10 CFR Part 20.1402) and for 
low-level radioactive waste disposal facilities (at 10 CFR Part 61.41). 
It is within the range of international constraints that allocate doses 
from high-level waste disposal to between 0.1 and 0.3 mSv (10 and 30 
mrem) per year, and is sufficiently below the public dose limit that no 
members of the public near Yucca Mountain would be expected to receive 
doses from all sources, excluding background radiation, in excess of 1 
mSv (100 mrem) per year.
    We believe that recent Congressional direction and NAS guidance, 
provided pursuant to that direction, are germane to the setting of 
acceptable risk levels for radionuclides received through the ground-
water pathway--the primary pathway of concern at Yucca Mountain. The 
1996 Amendments to the Safe Drinking Water Act directed the EPA to 
withdraw drinking water standards proposed for radon in 1991, that 
would have established an acceptable risk level for radon (a naturally-
occurring isotope, not generally regulated by the NRC) comparable to 
current MCLs for other radionuclides. The same amendments called for 
the EPA to arrange for the NAS to conduct an individual risk assessment 
for radon in drinking water. Based on the results of that assessment, 
the EPA was further directed to develop an alternative MCL that would 
represent a risk comparable to that incurred from naturally-occurring 
radon in outdoor air. By our calculations, such an alternative MCL for 
a single radionuclide would correspond to an annual risk of 3.8 x 
10-5 or more than twice that arising from exposure to an 
all-pathway, all-nuclide limit of 0.25 mSv (25 mrem) for Yucca 
Mountain. In view of this, and for the reason cited above and in the 
NRC's notice of proposed rulemaking for Part 63, we continue to believe 
that an all-pathway limit of 0.25 mSv (25 mrem) per year is an 
appropriate level of protection for a repository, a level that is 
consistent with national and international radiation protection 
practice.

    Question 16. We are proposing to require, in the individual-
protection standard, that the DOE must project the disposal system's 
performance after 10,000 years. Are the specified uses of the 
projections appropriate and adequate?
    Response. We agree that the NRC should not be required to use the 
results of the DOE's analyses of repository performance after 10,000 
years. However, should the DOE elect to use results of these 
calculations to further support its safety case, to demonstrate the 
capability of individual barriers, or to justify uncertainty estimates 
for data supporting its compliance demonstration, the Commission should 
not be constrained from considering such information. For this reason 
we object to the wording on p. 46993, that states that ``. . . NRC is 
not to use the additional analysis in determining compliance with 
proposed Sec. 197.20.'' We recommend that the EPA modify this statement 
to read ``. . . NRC is not required to use the additional analysis in 
determining compliance with proposed Sec. 197.20.''
   responses to further requests for comment in the proposed standard
    Question (p. 46997). Is it appropriate for the EPA to set 
guidelines for the use of expert opinion in this standard and, if so, 
what should those guidelines be?
    Response. It is inappropriate for the EPA to set guidelines for the 
use of expert opinion in its standards for Yucca Mountain. The NRC's 
licensing requirements and licensing process will govern the DOE's use 
of expert opinion in the development of its licensing case for a 
repository at Yucca Mountain. Furthermore, the NRC has already issued 
guidance on this matter (see Kotra, J.P. et al., NUREG-1563, ``Branch 
Technical Position on the Use of Expert Elicitation in the High-Level 
Radioactive Waste Program,'' 1996).

    Question (p. 46998). Is it appropriate for the EPA to establish 
assurance requirements . . . and, if so, what should those requirements 
be?
    Response. It is inappropriate for the EPA to establish additional 
qualitative ``assurance requirements'' to ``add confidence that the 
Yucca Mountain disposal system will achieve the level of protection 
proposed in the quantitative standards.'' The degree of confidence that 
the NRC must have, in assessing whether DOE's compliance demonstration 
satisfies the EPA disposal standards, is inherently an implementation 
matter for the NRC licensing requirements and licensing process to 
determine. As a practical matter, the NRC has already included 
criteria, in its proposed Part 63 regulations, that address the issues 
cited by the EPA as potential ``assurance requirements.'' Two of these 
are matters explicitly assigned to the NRC by statute [i.e. Section 
121(b)(1)(B) of the Nuclear Waste Policy Act specifies that the NRC 
criteria ``shall provide for the use of a system of multiple barriers 
in the design of the repository and shall include such restrictions on 
the retrievability of the solidified high-level radioactive waste and 
spent fuel emplaced in the repository as the Commission deems 
appropriate (emphasis added)].

    Question 4. It is my understanding that the EPA did not follow the 
recommendations of the National Academy of Sciences in drafting their 
proposed standards. What is NRC's view on this issue?
    Response. NRC believes the EPA's proposal for specifying separate 
requirements for protection of ground water does not follow the 
recommendations of the NAS. Regarding the protection of ground water, 
the NAS stated ``[w]e make no such recommendation, and have based our 
recommendations on those requirements necessary to limit risks to 
individuals'' (page 121, Technical Bases for Yucca Mountain Standards, 
NAS, 1995). In its comments on the EPA proposed standard, the NAS Board 
of Radioactive Waste Management (BRWM) contends that EPA ``. . . must 
make more cogent scientific arguments to justify the need for this 
standard.'' John Ahearne, current Chair of the BRWM, was recently 
quoted as saying that ``it was not scientifically logical to add in the 
groundwater standard.'' Additionally, EPA's proposed requirements for 
protection of ground water through maximum contaminant levels (MCLs) 
that result in non-uniform risk levels for individual radionuclides 
(see November 2, 1999 letter to Stephen D. Page, enclosed with the 
answer to question 3) is contrary to the NAS' recommendation for a 
health-based risk value. For example, the specific MCL for iodine-129 
equates to an individual dose of approximately 0.2 mrem/year, not 4 
mrem/year as the rule suggests.

    Question 5. I understand that the NRC has had conversations with 
Carol Browner on this issue. Where does the NRC and the Administration 
currently stand on the issue?
    Response. After the publication of the National Academy of Sciences 
(NAS) recommendations for high-level waste (HLW) disposal at Yucca 
Mountain in 1995, the NRC and the EPA met at various staff and 
management levels and with other government agencies (e.g., Office of 
Management and Budget, Office of Science and Technology Policy) to 
discuss appropriate standards for HLW disposal at Yucca Mountain. NRC 
continues to have concern regarding the EPA's proposal to establish 
separate limits for the ground-water pathway (e.g., MCLs) and for 
individual protection (e.g., 15 mrem) because these funds could 
increase costs and complicate licensing without providing a 
commensurate increase in public health and safety.
    In a November 2, 1999 letter to EPA (see enclosure to Question 3), 
the NRC provided comments on the Notice of Proposed Rulemaking, 
``Environmental Radiation Protection Standards for Yucca Mountain, 
Nevada'' (64 FR 46976). NRC concerns regarding HLW standards include: 
(1) needless application of a separate groundwater protection standard, 
(2) use of outdated 1959 dosimetry (ICRP 2) for determination of 
concentration limits for application of the groundwater protection 
standard, (3) an overly stringent performance standard of 15 mrem (NRC 
considers the range of 25 to 30 mrem protective of public health and 
safety), and (4) inappropriate EPA constraints on implementation of the 
standard, thereby intruding on NRC jurisdiction.

    Question 6. The NRC just completed a pilot program to test the 
agency's transition to a new oversight process for power reactors. What 
were the principal lessons learned from the pilot program on the new 
regulatory oversight process? When does the Commission plan to 
implement the process on an industry-wide basis?
    Response. The full results from the 6-month pilot program of the 
NRC's revised reactor oversight process are reported in Commission 
Paper SECY-00-0049, ``Results of the Revised Reactor Oversight Process 
Pilot Program,'' dated February 24, 2000.
    The principal conclusion from the pilot program was that the 
revised reactor oversight process was an improvement over the existing 
processes. The revised process met its objectives of (1) improving the 
objectivity of the oversight process, (2) improving the scrutability of 
the oversight so NRC actions have a clear tie to licensee performance, 
and (3) risk-informing the oversight process to focus NRC and licensee 
resources on performance having the greatest impact on plant safety.
    Based on lessons learned from the pilot program, changes were made 
to the revised oversight process. Changes included (1) deletion of the 
containment performance indicator, (2) changes to the thresholds on 
some performance indicators, (3) addition of guidance to address cross-
cutting issues (e.g., personnel errors in the human performance area) 
in assessment letters if the items are tied to safety issues, and (4) 
development of plant specific Significant Determination Process (SDP) 
Phase 2 worksheets.
    The pilot program also identified additional areas for improvement 
to the oversight process, including the potential need for additional 
performance indicators, the need for better definition of some of the 
existing performance indicators, and potential refinements in the 
inspection process. The exact nature of these changes require 
additional data and observations from a larger population of facilities 
than the nine pilot program plants. The staff will report to the 
Commission on these potential enhancements following the first year of 
implementation.
    The Commission approved initial implementation of the revised 
reactor oversight process on an industry-wide basis beginning April 2, 
2000.

    Question 7. The recent GAO survey concluded that the NRC staff has 
not fully accepted the changes associated with the new oversight 
process. What steps does the Commission plan to take in order to 
achieve broader acceptance and more uniform support from the staff?
    Response. The GAO survey was performed during the time the program 
was being implemented at the nine nuclear plant sites selected for the 
pilot program. At that time, working knowledge of the new oversight 
process was limited to the relatively small number of inspectors and 
other staff support personnel involved with the pilot plants. Thus, 
many of those who responded to the GAO survey were not fully informed 
about the program. Moreover, the survey responses reflected experiences 
during the early stages of the pilot program.
    Since the initial GAO survey, training on the new oversight process 
was conducted in all of the regions. During the first year of 
implementation, efforts to reach out to the staff will continue using a 
variety of methods, including large group briefings, small group 
discussions, newsletters, and the revised reactor oversight process web 
site. In addition, the staff intends to monitor the implementation of 
the new oversight process closely, solicit feedback from internal and 
external stakeholders, and make changes as appropriate. The Commission 
believes that as inspectors gain more experience with the program, 
staff confidence and acceptance will increase.

    Question 8. The NRC has developed an initiative to transition to 
more risk informed and, when appropriate, performance based regulatory 
approaches. What management oversight is the commission exercising to 
ensure coordination of and timely and effective issue resolution 
between the Office of Research's and Nuclear Reactor Regulation's 
efforts to risk inform NRC regulations?
    Response. The Commission and NRC senior management are actively 
involved in oversight of the agency's risk-informed activities. This 
has included periodic public Commission meetings on progress and 
issues, as well as providing direction on specific issues brought 
before the Commission.
    The NRC staff is now developing a risk-informed regulation 
implementation plan that will document staff plans and progress in 
risk-informed activities. This document is to be updated semi-annually 
and will be the subject of a public meeting after each update. In 
addition, the agency's Executive Director for Operations has 
established a Risk-Informed Regulation Steering Committee consisting of 
high level representatives from each of the NRC program offices and a 
regional representative. The committee is chaired by the Director of 
NRC's Office of Nuclear Regulatory Research and includes the Director 
of Nuclear Reactor Regulation. It is the function of this committee to 
ensure good coordination among the offices to set priorities, and to 
resolve issues that cannot be resolved at a lower level. This committee 
also meets periodically with a counterpart industry committee 
(organized by Nuclear Energy Institute) to coordinate and discuss items 
of mutual interest.

    Question 9. In the past, the NRC has been subjected to significant 
criticism for the length of time it has taken to render decisions in 
licensing actions. Although it appears that the NRC has made 
considerable progress in, for example, license renewal, does the NRC 
expect to streamline its hearing procedures generally? Please provide a 
schedule for completion of all changes the NRC will implement to ensure 
that its licensing process is as efficient as possible.
    Response. The staff has been successful in addressing concerns 
raised regarding timeliness in processing licensing actions. This was 
due, in part, to efforts undertaken by the NRC informing the Licensing 
Action Task Force in the Summer of 1998. The staff has also received 
comment from a counterpart organization, sponsored by NEI. The Task 
Force facilitated key changes to processes and procedures that 
established a much more predictable review process in reviewing and 
approving licensing action requests. The Task continues in its efforts 
to improve the process and obtain input from stakeholders to improve 
the NRC's efficiency in processing licensing action requests. To ensure 
the continued success of this effort, the two groups continue to meet 
on a bi-monthly basis.
    In 1998, the regulated industry highlighted its concerns that the 
licensing action inventory had grown considerably and a significant 
number of licensing actions were taking an inordinate amount of time to 
review and approve. The staff also became aware of the industry concern 
that technical reviews were inconsistent and questions were being sent 
to licensees that had little or no regulatory basis. Beginning in 
October 1998, the Commission established three key performance metrics 
related to the number of licensing actions to be completed, average age 
of the licensing inventory and number of licensing actions in the 
inventory. These have been incorporated in the NRC's Performance Plan. 
Our progress in meeting the goals is routinely provided as part of our 
monthly report to Congress on the status of NRC licensing and 
regulatory actions.
    The performance on NRR's processing licensing actions report card 
for fiscal year 1999 was very positive. At the end of fiscal year 1999 
the staff had surpassed the established goals. Specifically, the staff 
issued 1727 licensing actions, while the goal for fiscal year 1999 was 
1650. No licensing actions were greater than 2 years old and the 
inventory had been reduced to 857 open licensing actions.
    The NRC also has an exemplary record in dealing with the complex 
license transfer cases that are coming before us. We were among the 
first regulators to analyze and act on the transfer of the Pilgrim 
operating license to Entergy Corporation from Boston Edison. We were 
among the first to take action on the Three Mile Island Unit 1 transfer 
from GPU to Amergen, and we promptly acted on the Clinton transfer from 
Illinois Power to Amergen. There are several other complex license 
transfer cases before us that arise from the restructuring of the 
industry. These cases sometimes require a significant expenditure of 
energy by our staff, but we will make continuing efforts to assure 
timely resolution of those matters.
    Finally, regarding your question about streamlining our hearing 
procedures, it is important to note that on an annual basis less than 
one percent of NRC licensing actions involve a request for a hearing. 
Even so, the Commission is currently considering a draft proposed rule 
which would make improvements to hearing processes in 10 CFR Part 2. 
The proposed rule under consideration by the Commission would expand 
the use of informal hearing procedures. Following Commission review and 
the completion of any changes to the proposed rule which the Commission 
deems to be necessary or desirable, the proposed rule will be published 
in the Federal Register for a 60-day public comment period. After the 
close of the public comment period, the Commission anticipates that it 
would take 4 to 7 months to consider the public comments, make any 
necessary changes to the proposed rule, prepare responses to the public 
comments, provide for Commission deliberation and voting on the final 
rule, and publish the final rule in the Federal Register.

    Question 10a. Recently, the NRC Office of Inspector General 
completed a study evaluating the NRC's assessment of fees under the 
Independent Offices Appropriation Act of 1952 (IOAA) and the Omnibus 
Reconciliation Act of 1990 (OBRA-90). The IG's report concluded that 
there were several significant deficiencies in the NRC's methodology 
for determining its fees. Specifically, the IG's evaluation determined 
(1) by using the percent change methodology over an extended period of 
time without first conducting an annual rebaselining analysis, the 
NRC's Part 171 annual fees are being divorced from the cost of service; 
(2) the methodology used to determine the NRC's hourly rate charged 
licensees inappropriately excludes some generic costs and includes 
others, and inconsistently uses budget data rather than direct costs; 
and (3) there is inadequate management oversight, including providing 
incomplete public information during the rulemaking comment period. The 
response to the IG's report by the NRC's General Counsel and CFO 
indicate disagreement with several parts of the IG's recommendations.
    What actions will the NRC take to ensure that rebaselining is 
performed on a more frequent periodic basis?
    Response. Prior to fiscal year 1999, Commission policy required 
that annual fees be rebaselined every five years, or earlier if there 
was a substantial change in the total NRC budget or in the magnitude of 
the budget allocated to a class of licensees. In fiscal year 1999, 
based on experience gained as a result of applying the criteria for 
rebaselining over the previous four years, the Commission implemented a 
revised policy requiring that future annual fees should be rebaselined 
every three years, or earlier if warranted, and that in any event, the 
Commission will not use the percent change method for more than two 
years in a row. The Commission's decision on the appropriate method for 
establishing annual fees (i.e., rebaselining vs. percentage change) is 
made each year after considering all relevant factors.

    Question 10b. If the NRC is not going to develop rebaselining 
thresholds, what are the other criteria used to evaluate the need to 
conduct rebaselining?
    Response. Establishing quantifiable threshold changes as the basis 
for rebaselining does not address all of the factors the Commission 
needs to consider when establishing fees each year. For example, 
substantial changes in individual licensees' annual fee amounts may 
result from many things other than a discrete change (e.g., changes in 
the budget or in the amount of the budget allocated to a class of 
licensees), such as reduced Independent Offices Appropriation Act fee 
collections from a class of licensees or a decreasing number of 
licensees in a particular class/category. Therefore, in fiscal year 
1999 the Commission adopted a policy of rebaselining every three years 
or earlier, if warranted, as stated in the response to Question 10(A).

    Question 10c. Without rebaselining, how can the NRC justify the now 
more distant relationship between NRC fees and actual costs?
    Response. The NRC did rebaseline for fiscal year 1999 fees, so the 
relationship between fees and costs is closer now, not more distant. 
Furthermore, the Commission decided in 1999 that it would rebaseline 
every three years, at a minimum, and earlier if warranted. The 
Commission also believes that its annual charges meet the statutory 
criteria that they be fairly and equitably allocated among licensees 
and, to the maximum extent practicable, have a reasonable relationship 
to the cost of providing regulatory services. To address licensee 
concerns about fee stability and predictability, the Commission adopted 
the policy of adjusting the annual fees by the percentage change in the 
total NRC budget, with adjustments for the number of licenses and other 
adjustments to meet the statutory requirement to recover approximately 
100 percent of the budget through fees. This percent change method is 
used only if there has not been a substantial change in the total NRC 
budget or the magnitude of the budget allocated to a specific class of 
licensees, in which case the annual fees will be rebaselined.

    Question 11a. The IG recommended that the NRC evaluate the hourly 
rate calculation methodology. Yet the response by the NRC's General 
Counsel and CFO indicate that the NRC will undertake an examination of 
the existing approach to determine if improvements can be made ``in a 
cost effective manner.'' This answer seems to ignore the IG's point 
that the NRC's fee development process must comply with the full cost 
recovery principles contained in Independent Offices Appropriation Act 
(IOAA) and OMB Circular A-25.
    What action will the Commission take to address the IG's point?
    Response. The Commission continues to believe that its fee 
schedules are in full compliance with the requirements of the 
Independent Offices Appropriation Act (IOAA) and OMB Circular A-25. The 
NRC's methodology for calculating the fees it assesses under IOAA was 
upheld by the Court in Mississippi Power & Light Co. v. NRC [601 F. 2d 
223 (5th Cir. 1979)]. Nonetheless, the NRC's Office of the Chief 
Financial Officer (OCFO) examined the contract costs excluded from the 
current hourly rate calculations and provided the study results to the 
NRC's IG on March 6, 2000. The study concludes that there is no basis 
for including these costs in the hourly rate. In addition, the OCFO 
contracted with a professional accounting firm to review the current 
methodology for calculating the hourly rates and to recommend 
alternative methods. The accounting firm's report is currently being 
evaluated by the NRC; however, it concludes that the NRC's current 
methods are recognized and acceptable means of assigning costs and 
provides a consistent, defensible, and economically feasible means for 
determining fees.

    Question 11b. Why does the NRC seem unwilling to develop specific 
definitions for generic costs, which would ensure that such costs are 
treated consistently in fee calculations?
    Response. A specific definition is lacking not because the 
Commission is unwilling to develop it, but because it simply is not 
possible to do so under the statutory framework that governs the 
Commission's fee assessment program. Under the Independent Offices 
Appropriations Act (IOAA), the NRC may assess Part 170 fees only for 
specific services provided to identifiable beneficiaries (31 U.S.C. 
Sec. 9701). These services include primarily licensing and inspection, 
but also could include rulemaking and research that are performed for a 
single identifiable beneficiary, such as research performed to enable 
the staff to review a particular license application. But costs of 
generic activities that cannot be attributed to a single identifiable 
beneficiary, such as rulemaking or research that benefits all 
pressurized water reactors, cannot be recovered pursuant to the IOAA 
(Florida Power & Light v. NRC, 846 F.2d 765 (D.C. Cir. 1988), cert. 
denied, 490 U.S. 1045 (1989)); Mississippi Power & Light v. NRC, 601 F. 
2d 223 (5th Cir. 1979), cert. denied, 444 U.S. 1102 (1980)). Under the 
Omnibus Budget Reconciliation Act of 1990, as amended, the NRC must 
recover in fees approximately 100% of its budget authority, minus sums 
appropriated to the NRC from the Nuclear Waste Fund. Thus, the costs of 
all activities not recovered through IOAA fees are ``generic costs'' or 
other costs that must be recovered through the assessment of Part 171 
annual fees. The category of generic costs is therefore ``defined'' 
mainly through a process of elimination of costs that are to be 
recovered under the IOAA. The category necessarily defeats attempts at 
specific definition because it encompasses a broad range of activities.
    Nonetheless, the lack of a specific definition of ``generic costs'' 
does not result in inconsistent treatment of similar costs. To the 
contrary, the statutory constraints outlined above leave the agency 
little latitude as to how to treat specific or generic costs.

    Question 11c. What is the agency's justification for formulating 
hourly rates by using data developed for budget preparation and not 
traceable to billable activities, rather than actual data from the 
previous year's billings?
    Response. The NRC's hourly rates are established to recover the 
cost of maintaining a professional employee, such as salaries and 
benefits and overhead, and to recover general and administrative costs, 
such as heat, lighting, and supplies. These budgeted costs are incurred 
whether a professional employee is performing work that is billable 
under Independent Offices Appropriations Act (IOAA) (fees for services) 
or work that is recovered through annual fees. The time spent by a 
professional employee in performing work that is subject to IOAA fees 
is traced to the billable activities and billed, at the professional 
hourly rate, to the recipient of the service. Any direct contract 
support costs incurred in providing the service are also traced and 
billed directly to the recipient. Because the hourly rate is not 
intended to be used only for work that is billable under IOAA, we 
believe it is more appropriate to use budget data than to base the 
hourly rate calculations on historical IOAA-type billing data. The 
professional accounting firm's report, which is currently being 
evaluated by the NRC, concludes that the NRC's current methods are 
recognized and acceptable means of assigning costs and provide a 
consistent, defensible, and economically feasible means of developing 
fees.

    Question 11d. The IG report is critical of the NRC's lack of 
written procedures for preparing the annual fee rule. What action will 
the Commission take to direct the NRC staff to develop such procedures?
    Response. The NRC is currently compiling its annual fee rule 
process in the form of a standard operating office procedure, which is 
scheduled for completion by September 30, 2000.

    Questions 12 and 13. The NRC continues to collect approximately 80% 
of the total fees for generic activities. Approximately only 20% of NRC 
fees are allocated for discrete services. In the past, the NRC has 
justified the low percentage of its fees being allocated to specific 
services based on (1) NRC inability to recover costs for providing 
specific services to most federal agencies and for infrastructural 
services rendered to Agreement States; (2) exemption of nonprofit 
educational institutions from fees; and (3) a reduction in fees for 
small businesses.
    What steps has the NRC taken to increase the percentage of fees 
allocated to discrete services so that the benefits derived from NRC 
activities are more visible to the regulated community?
    Response. The items listed in number 12 represent a small portion 
of the annual fees that are collected for other than discrete services. 
The principal component of the annual fees are costs for generic 
activities (such as direct program costs for rulemaking, research, and 
maintenance of an incident response center). These costs are not 
recoverable pursuant to the Independent Offices Appropriations Act 
(IOAA) through fees assessed for discrete services to applicants and 
licensees.
    In the fiscal year 1998 and 1999 Final Fee Rules, the NRC 
instituted a series of changes to increase cost recovery under IOAA for 
discrete services provided to identifiable beneficiaries. For example, 
major changes include full cost recovery for resident inspectors and 
project managers (excluding time spent on generic type activities, 
leave time, etc.), and assessing fees for incident investigations, 
certain performance assessments and evaluations, and reviews of reports 
and other submittals, such as responses to Confirmatory Action Letters. 
The NRC has on several occasions solicited public comment on the cost 
recovery method for other discrete activities, such as contested 
hearings and escalated enforcement actions. Those commenting on this 
issue presented arguments both for and against assessing fees for these 
activities. The NRC concluded there were legal and policy concerns with 
assessing charges of this nature. Therefore, based on these 
considerations, the Commission decided to continue recovering costs for 
these types of activities through annual fees.
    Although the NRC has taken steps to increase cost recovery for 
discrete services, the percentage of costs recovered through fees for 
services (IOAA fees) has been reduced by recent Commission policy 
changes made for the convenience of licensees and the NRC. To 
streamline the cost recovery process and ease burdens on the regulated 
community, the annual fees assessed to materials users now include the 
costs of inspections, license renewals, and license amendments. The 
costs of these activities were previously recovered through fees for 
services assessed to specific licensees. While this decision decreases 
the percentage of fees for discrete services, the NRC has received very 
positive feedback from the materials licensees concerning this change. 
In their view, the revised approach provides greater fee stability and 
reduces their administrative burden.

    Question 14. What steps has the NRC taken to account for discrete 
and general services and link them with fees paid?
    Response. Costs for discrete services provided to identifiable 
beneficiaries are billed to the applicants and licensees under 
Independent Offices Appropriations Act (IOAA), unless exempted by law 
or Commission policy. Exceptions to this policy are inspections, 
license renewals, and license amendment costs for materials users, 
which are included in the materials users' annual fees as a 
streamlining and cost-saving measure. Legislation is currently pending 
which would permit NRC to assess IOAA fees to Federal Agencies, who are 
currently exempted by law from these fees. In addition, Commission 
policy exempts non-profit educational institutions and certain 
activities, such as contested hearings, responses to allegations and 
escalated enforcement actions, from IOAA fees. These costs are 
recovered through annual fees. The NRC is unable under existing law to 
charge IOAA fees for generic activities; therefore the costs of these 
activities are also recovered through annual fees.

    Question 15. When does the NRC expect to provide users with a line 
item budget analysis of discrete services and general fees?
    Response. The NRC believes it provides sufficient information 
concerning its proposed fee schedules each year to allow effective 
evaluation and constructive comment by the public. For example, each 
proposed fee rule provides detailed explanations of the budgeted costs 
for the various classes of licensees being assessed fees. In addition, 
the NRC work papers pertinent to the development of the fees are placed 
in the NRC's Public Document Room on the first day of the public 
comment period. These work papers provide additional information 
concerning the development and calculation of fees, including NRC's 
fiscal year budgeted resources at the activity and subactivity level 
for the agency's major programs. The NRC staff is also available to 
meet with interested parties in person, respond to written inquires, or 
respond to telephonic inquiries to explain its fee schedules.
    The NRC believes that sufficient information is currently provided 
to licensees or applicants on which to base payment of invoices. The 
NRC has addressed this issue previously in a similar response to the 
American Mining Congress (60 FR 20918, April 28, 1995). The NRC's 
invoices for full-cost licensing actions and inspections currently 
contain information detailing the type of service for which the costs 
are being billed, the date or date range the service was performed, the 
number of professional staff-hours expended in providing the service, 
the hourly rate, and the contractual costs incurred. The NRC will 
provide available data concerning the bill upon a request of the 
licensee or applicant. Additionally, if requested, the NRC program 
staff will provide a best estimate of the hours required to complete a 
specific licensing action, thereby enabling licensees to estimate the 
costs.

    Question 16. The NRC appears to have taken steps to remedy the 
situation where licensees pay for agency services that do not benefit 
licensees. Why has the NRC chosen to increase its general revenue 
request without earmarking these funds for services that do not benefit 
licensees (e.g., international activities)? Given that the basis is a 
percentage reduction, how does this percentage relate to actual 
expenses for these activities?
    Response. The NRC believes that adjusting the percentage of the 
budget to be recovered from fees is an efficient and effective means to 
address the fairness and equity concerns associated with fees. We do 
emphasize that any funds provided from the general fund would be used 
to reduce or eliminate inequities in our fee schedules.
    We have not sought to earmark specific funds for specific items for 
two reasons. First, not all of the costs in question are specifically 
budgeted activities. For example, the small entity subsidy is not a 
budgeted item but rather is the amount that will not be recovered from 
those licensees who pay reduced annual fees based on their status as 
small entities. Second, identification of specific items may imply that 
the NRC has two separate budgets with different importance and 
priorities. This is not the case. NRC's budget is used for those 
activities needed to carry-out our mission and meet our performance 
goals, independent of how they are funded.
    Historically, on the order of 10 percent of our budget has been for 
those activities associated with fairness and equity concerns. For 
example, in fiscal year 1999, the surcharge amount assessed to 
licensees for these activities was $55.2 million, or approximately 11.7 
percent of the total NRC fiscal year 1999 budget.

    Question 17. The NRC has recently issued several enforcement 
actions for violations of the employee protection provisions of 10 
C.F.R. Sec. 50.7, on the basis that adverse employment actions were 
motivated, at least ``in part,'' by the employee's engagement in 
protected activity. In one of these actions, as a corollary to the ``in 
part'' standard, the NRC ruled that a licensee retaliated against an 
employee who has engaged in protected activity because the licensee 
could not prove that its decisions were ``based solely on'' legitimate 
business considerations. In another case the NRC found a violation 
because the adverse action was ``related to'' protected activity. The 
NRC's legal theory, initially captured in the Millstone Independent 
Review Team (MIRT) report and later directly established in Enforcement 
Guidance Memorandum (EGM) 99-007, appears to derive from discrimination 
law other than that arising under Section 211 of the Energy 
Reorganization Act. Under the criteria for a violation of 10 C.F.R. 
50.7 set out in the MIRT and the EGM, the only nexus that must be 
established between the protected activity and adverse action is 
whether the adverse action was taken ``at least in part'' because of 
protected activity. While this requires a finding of some retaliatory 
intent, it does not allow the licensee to demonstrate--consistent with 
10 C.F.R. Sec. 50.7(d)--that legitimate considerations dictated the 
actual employment action taken. The NRC's current standard and approach 
has never been presented to the Commission in open session, nor has it 
been discussed with stakeholders. Please explain the basis for the 
change in the legal standard and evidentiary threshold now being 
applied in enforcement actions based upon alleged violations of 10 
C.F.R. 50.7.
    Response. The Commission has not changed the standards which it 
applies to employment discrimination cases arising under 10 C.F.R. 
Sec. 50.7. Although the MIRT report made a number of recommendations 
regarding the procedures used to arrive at enforcement decisions, it 
otherwise made no recommendations for substantive changes to what have 
been the underlying legal standards applied in cases arising under 
section 50.7. The Executive Director for Operations noted that 
consistent application of the overall approach applied in such cases in 
his June 14, 1999 response to MIRT.
    Moreover, while it is true that there are some differences in the 
standards applied by the Commission under section 50.7 and by DOL under 
Section 211 of the Energy Reorganization Act, those differences are 
dictated by the nature of the agencies' respective interests in and 
roles with respect to the alleged discrimination. As you know, Section 
211 (formerly section 210) was enacted to provide individuals who 
believed they had been subjected to discrimination for raising safety 
issues with a forum in which they could obtain a personal remedy, for 
example, compensation or reinstatement. Thus, in applying Section 211, 
DOL properly considers, in determining the appropriate remedy, whether 
the individual has actually suffered some adverse action that would not 
have resulted absent the individual's raising the concern. If a 
licensee can prove that it would have taken the same action 
irrespective of the protected activity, then the individual has not 
been harmed and no personal remedy is warranted for the employee.
    On the other hand, the Commission's interest in promulgating 
section 50.7 was to ensure a work environment where individuals feel 
free to raise safety concerns without fear that their doing so will be 
used against them. Given its nexus to the Commission's health and 
safety responsibilities, section 50.7 (and its analogues elsewhere in 
the Commission's regulations) were promulgated under the authority of 
section 161 of the Atomic Energy Act with the description of protected 
activity modeled on section 211 of the Energy Reorganization Act. If 
the staff can prove that an individual's engaging in protected activity 
was a factor on which an adverse action was based, then a violation of 
50.7 would be established. From the Commission's perspective, the 
reliance on illegitimate grounds for taking an adverse action has a 
harmful effect on the work environment that may warrant enforcement 
action, even if the licensee could show that it would have taken the 
same action irrespective of the protected activity. It is important to 
emphasize the point that the staff would bear the burden of proof in 
any hearing requested by a licensee to contest an enforcement action. 
Thus, the staff would have the burden to prove by a preponderance of 
the evidence that one of the reasons for the adverse action taken by 
the licensee was that the individual engaged in protected activity. 
This is entirely consistent with section 50.7(d) which is designed to 
ensure that an individual cannot insulate himself from adverse action 
by raising a safety concern. As long as the licensee does not consider 
the protected activity, it is free to take any appropriate action it 
desires without interference from the Commission.

    Question 18. Given that Section 50.7(d) specifically allows 
employment actions involving protected employees if those actions are 
``dictated by nonprohibited considerations,'' please explain the basis 
for citing violations of 10 C.F.R. 50.7 regardless of whether the 
licensee demonstrates that legitimate reasons for adverse employment 
action existed.
    Response. As indicated in the answer to Question 17, section 
50.7(d) applies to situations where the licensee takes an action which 
does not take into account that the individual engaged in protected 
activity. It is designed to ensure that an individual cannot immunize 
himself from adverse action by raising safety concerns. As long as the 
licensee bases its decision solely on reasons other than the employee's 
protected activity, it is free to take any action it desires without 
Commission interference.

    Question 19. Does the Commission believe it is appropriate, as a 
matter of policy, for the NRC to summarily reject evidence that there 
was no retaliatory intent in a Section 50.7 case?
    Response. The staff does not summarily reject any evidence in 
reaching its decision on whether to proceed with an enforcement action. 
Moreover, as noted in answering Question 17, the Commission staff would 
bear the burden of proof in any enforcement hearing.

    Question 20. Does NRC staff believe it is legally supportable to 
determine that there was retaliatory intent in the face of evidence of 
nonprohibited considerations supporting an employment decision?
    Response. Yes. As previously stated, the issue is not whether there 
is also a nonprohibited reason for the action taken but rather whether 
a prohibited reason was a factor in taking the action at issue.

    Question 21. Does the Commission believe it is sound public policy 
to require a licensee in a Section 50.7 case to have to show the 
absence of bad faith at all levels of its organization, i.e., that its 
actions were based ``solely'' on nonprohibited concerns?
    Response. As explained above, licensees do not have to show or 
prove anything in a section 50.7 case. Rather it is the Commission 
staff which bears the burden of proving that an action was taken, at 
least in part, for prohibited reasons.

    Question 22. As a matter of policy, does the Commission support 
permitting licensees to take appropriate action to ensure the 
competence and quality of their work force by assigning, counseling, 
and as necessary, disciplining employees who do not contribute to a 
safe environment, notwithstanding the fact such employees may have 
engaged in protected activity. Please explain the basis for the answer 
provided.
    Response. Yes, and that is precisely the reason that section 
50.7(d) was promulgated. A licensee may take action to assure the 
competence and quality of its work force so long as participation in 
protected activity is not a consideration in taking the action.

    Question 23. A likely consequence of the NRC's new approach to 
Section 50.7 cases necessarily will be that management will be 
reluctant to make adverse employment decisions, set standards or assure 
accountability, even where those decisions are warranted or would 
further enhance safe operations. Management may be unwilling to assess 
performance if this assessment is ``related to'' protected activity, 
even if the performance issues go to the essence of an employee's 
safety-related duties.
    Response. In order to assure that a safety conscious work 
environment exists at licensed nuclear facilities, 10 CFR 50.7 states 
that discrimination against employees for engaging in protected 
activities is prohibited.
    However, 10 CFR 50.7 (d) states that ``Actions taken by an 
employer, or others, which adversely affect an employee may be 
predicated upon non-discriminatory grounds. The prohibition applies 
when the adverse action occurs because the employee has engaged in 
protected activities. An employee's engagement in protected activities 
does not automatically render him or her immune from discharge or 
discipline for legitimate reason or from adverse action dictated by 
non-prohibited considerations.''
    As noted in the response to Question 17, standards being utilized 
by the NRC in Section 50.7 cases are not new and the percentage of 
allegations being substantiated by the staff has not changed. 
Management's ability to set standards, assume accountability and assess 
performance are not adversely impacted by the NRC's enforcement of 
employee protection regulations (10 CFR 50.7). For many years the NRC 
has consistently held that adverse action taken against an employee, at 
least in part because of protected activities, is a violation of 10 CFR 
50.7. However, as stated, 10 CFR 50.7 (d) recognizes that, if an 
adverse action were taken for legitimate reasons apart from the 
protected activity, there is not a violation of 10 CFR 50.7. It is 
incumbent upon the licensee to base the adverse action solely on 
legitimate business reasons and not on the protected activities. 
Including protected activities in the licensee's reasoning for why an 
adverse action was taken leads the staff to conclude that the action 
was taken, in part, because of the protected activity and was a 
violation of 10 CFR 50.7. Including a protected activity in the 
reasoning for why an adverse action was taken clearly sends the message 
to other employees that engaging in protected activities may be used as 
part of the basis for taking action against them. This would create an 
environment where employees fear retaliation if they engage in 
protected activities. Therefore, a discharge or other disciplinary 
action must be dictated by the non-prohibited considerations.
    Licensee management faces no different challenge under Section 50.7 
than it does under the many other employment discrimination statues 
which are potentially applicable to every employment decision which it 
must make.

    Question 24. Please explain whether and, if so, why the Commission 
believes the new approach to Section 50.7 cases is in the public 
interest, given that its impact is to effectively paralyze licensees 
because of fear that protected activity may later be discerned by the 
NRC to have played ``a part'' any given employment decision.
    Response. The NRC inspection program has limited resources and uses 
a sampling approach, focused on the most safety significant aspects of 
the facilities. As a result, the NRC has traditionally also relied on 
the openness of licensee employees to identify safety significant 
issues. The NRC's approach to discrimination against employees for 
raising safety concerns is aimed at maintaining an environment in which 
employees feel free to raise such concerns, thereby enhancing the 
overall ability of the agency to ensure the continued safe operation of 
the nuclear facilities.
    As stated previously, there is no new approach to section 50.7 
cases. For many years the NRC has consistently held that an adverse 
action taken against an employee, at least in part, because of 
protected activities is a violation of 10 CFR 50.7. The percentage of 
substantiated allegations has not increased. (The NRC substantiates and 
takes action in approximately 10 percent of the discrimination 
complaints identified.) The focus of the NRC regulations in this area 
is to ensure that a safety conscious work environment exists in which 
employees feel free to raise safety issues without fear of reprisal or 
adverse employment action being taken against them. The Commission 
believes that it is in the public interest for employees at nuclear 
power plants to feel free to raise nuclear safety issues without fear 
of reprisal.
    10 CFR 50.7(d) provides that licensees may take employment action 
against employees for legitimate reasons dictated by non-prohibited 
considerations. Provided that licensee actions were based on these non-
prohibited considerations and not the protected activities, licensees 
should feel confident that protected activity will not later be 
perceived by the NRC to have played ``a part'' in any given employment 
decision. Moreover, the application of the standards does not turn on 
what the NRC ``discerned'' but rather what the NRC staff can prove by a 
preponderance of the evidence in front of a neutral third party.

    Question 25. Does the Commission believe that an inference of 
retaliatory intent can be made from only a manager's knowledge that an 
employee has engaged in protected activity? If so, please explain the 
Commission's legal and policy justification for this position.
    Response. No. Mere knowledge that an employee had engaged in 
protected activity would not be sufficient to establish retaliatory 
intent as is clear from a reading of section 50.7(d). In order to 
establish a violation, the staff has to prove by a preponderance of the 
evidence that, the employment action was based, at least in part, on 
the fact that the employee had engaged in protected activity.

    Question 26. Given that the Department of Labor administers Section 
211, the NRC's 50.7 regulations are, at least in part, designed to 
implement Section 211, and the NRC has little or no particular 
expertise in the area of labor relations and/or employment disputes, 
will the Commission reconsider the NRC's role in investigating 
individual allegations or retaliation? Please explain the basis for the 
answer provided.
    Response. The Commission has no plans to reconsider the NRC's role 
in investigating individual allegations of retaliation. The Department 
of Labor considers whether or not the individual has actually suffered 
some adverse action that would not have resulted absent the 
individual's engagement in protected activity and whether it can 
provide a remedy for the individual. The Commission's interest in 
promulgating Section 50.7 was to ensure a work environment in which 
individuals feel free to raise safety concerns without fear that their 
doing so will be used against them. The NRC has a long history of 
investigating alleged discrimination cases to ensure a safety conscious 
work environment exists at licensee facilities such that employees feel 
free to raise safety concerns. The freedom of employees to raise 
concerns is an important part of the NRC's various oversight programs, 
which highlights the importance of the Commission's policy on employee 
protection.
    The Atomic Energy Act (AEA) provides the Commission with authority 
to investigate cases in which discrimination may have resulted from an 
individual raising concerns, and to take appropriate enforcement action 
against licensees for such discrimination. In 1977, the staff became 
aware of a concern by a construction worker that he had been fired 
because he raised a safety issue with an NRC inspector. The worker was 
employed by a contractor to a utility holding a construction permit for 
a reactor facility. The staff took the position that it had legal 
authority under the AEA to investigate the allegation and take 
enforcement action if the allegation was substantiated. The utility 
refused to permit the investigation. The issue was reviewed by both the 
Licensing and Appeal Boards. Both Boards held that the AEA provided the 
Commission with authority to take action where a licensee or its 
contractor discriminated against an employee for raising a safety 
issue. The Appeal Board explained that labor disputes could ``engender 
radiation hazards to the public of the kind that the AEA was designed 
to guard against.'' \1\
---------------------------------------------------------------------------
    \1\ Union Electric Company (Callaway Plant, Units 1 and 2), ALAB-
527, 9 NRC 126, 133-39 (1979).
---------------------------------------------------------------------------
    Although the AEA provides the Commission with authority to take 
proscriptive action against a licensee for discriminating against 
employees who raise safety concerns, it does not provide authority to 
order a direct, personal remedy to the employee. Consequently, on 
November 6, 1978, Congress enacted Section 210 of the Energy 
Reorganization Act (ERA), giving the Department of Labor the authority 
to order a direct, personal remedy to the employee. Senator Hart, 
urging his colleagues to accept Section 210, emphasized that ``while 
new Section 210 of the Energy Reorganization Act of 1978 provides the 
Department of Labor with new authority to investigate an alleged act of 
discrimination in this context and to afford a remedy should the 
allegation prove true, it is not intended to in any way abridge the 
Commission's current authority to investigate an alleged discrimination 
and take appropriate action against a licensee-employer, such as a 
civil penalty, license suspension or license revocation. Further, the 
pendency of a proceeding before the Department of Labor pursuant to new 
section 210 need not delay any action by the Commission to carry out 
the purposes of the Atomic Energy Act of 1954.'' \2\ (Section 210 was 
changed to section 211 in the Energy Policy Act of 1992, Public Law 
102-486.)
---------------------------------------------------------------------------
    \2\ 124 Cong. Rec. S15318 (daily ed. September 18, 1978), remarks 
of Senator Hart.
---------------------------------------------------------------------------
    The Office of Investigations has conducted investigations into 
numerous allegations of discrimination. For example, over a 3 year 
period (1997, 1998, and 1999), the Office of Investigations completed 
review of 277 discrimination-related cases. Based on the long history 
of NRC investigations and the significant number of investigations 
conducted per year, the NRC has significant expertise in the area of 
nuclear employee protection. In fact, the NRC was involved in nuclear 
employee protection prior to the Department of Labor's involvement 
resulting from the 1978 addition of Section 210. In addition, most of 
the attorneys who provide legal advice in connection with these cases 
have many years experience in employment discrimination law. The 
Commission plans to continue to investigate allegations of 
discrimination, as has been the policy for more than 20 years.

    Question 27. Has the NRC formally determined that, as a matter of 
policy, the NRC staff, and particularly Office of General Counsel 
staff, should serve in a prosecutorial role in predecisional 
enforcement conferences? Please explain the basis for the answer 
provided.
    Response. The purpose of the predecisional enforcement conference 
is to obtain information that will assist the NRC in determining the 
appropriate enforcement action. This is often accomplished through an 
interactive dialogue between the NRC and the licensee. The intent is 
not to prosecute the case, but to develop an understanding of the 
facts.
    During the conference, the licensee, contractor, or other person 
potentially subject to enforcement action is given an opportunity to 
provide information related to the purpose of the conference. 
Specifically, the licensee, contractor, or other person is encouraged 
to present their understanding of the facts and circumstances 
surrounding the apparent violation and whether they agree with the 
facts. The staff routinely asks follow-up questions to further its 
understanding of the facts. An explanation of the corrective actions 
(if any) that were taken following identification of the potential 
violation is also requested.
    For a case in which an NRC Office of Investigations (OI) report 
finds that discrimination as defined under 10 CFR 50.7 (or under 
similar provisions in Parts 30, 40, 60, 70, or 72) has occurred, the 
employee or former employee who was the subject of the alleged 
discrimination is normally provided an opportunity to participate in 
the conference with the licensee/employer. This participation is 
normally in the form of a statement and comment on the licensee's 
presentation, followed in turn by an opportunity for the licensee to 
respond to the employee's presentation. The purpose of the employee's 
participation is to provide information to the NRC to assist it in its 
enforcement deliberations.
    A conference is the last step in the fact-finding process, and is 
conducted prior to any NRC enforcement action or NRC adjudicatory 
hearing on the enforcement action.

    Question 28. Please provide examples of other federal agencies with 
responsibility to protect health and safety that have enacted 
enforcement-based regulations (like Section 50.7) to address ``chilling 
effect.'' Please specifically identify the regulations implemented by 
the named agencies for this purpose.
    Response. Section 50.7 does not directly address ``chilling 
effect''; rather, it prohibits discrimination. If not corrected, 
discriminatory actions can then lead to a degraded safety conscious 
work environment, or a ``chilled environment.'' We are unaware of 
provisions implemented by other agencies similar to section 50.7.
    In 1993, an NRC task force contacted a number of federal 
departments and agencies and discussed their policies concerning 
employee protection. Although a number of statutes were identified that 
related to employee protection, the statutes provided, like section 
211, a remedy for the aggrieved employee through the Department of 
Labor.
    Recently, the staff recognized a need to contact other federal 
agencies again and review their rules, procedures, and practices. The 
staff recognizes that both the Department of Energy and the Federal 
Aviation Administration have recently strengthened their programs 
through legislation and rulemaking. However, an initial search of 
certain of the previously contacted agencies' web sites indicated 
little of substance has changed since 1993. The staff intends to 
discuss these and other agency programs with appropriate officials to 
identify similarities.
    Note: It is the NRC's understanding, although not verified through 
the identified agencies, that the Department of Transportation's rule 
on employee protection for commercial motor vehicle safety (49 USC 
31105) does not contain provisions for taking enforcement actions as 
specifically described in 10 CFR 50.7(c). Additionally, on March 10, 
2000, the Department of Energy's rule on employee protection, 10 CFR 
708, ``DOE Contractor Employee Protection Program,'' became effective; 
however, 10 CFR 708 appears to address an individual remedy through DOE 
investigations and hearings similar to DOL's role rather than an 
enforcement policy to prevent or minimize a ``chilling effect.''

    Question 29. The Office of Enforcement issues Enforcement Guidance 
Memorandum to apprise NRC staff and licensees about various enforcement 
issues, including interpretations of various provisions of the 
Enforcement Policy, etc. What process exists for ensuring that EGMs and 
other agency documents do not establish new or change existing 
Commission policy?
    Response. Enforcement Guidance Memoranda (EGMs) are staff documents 
providing guidance to the staff on how to administer the enforcement 
program (including administrative process issues) and how to implement 
the Enforcement Policy. By definition, EGMs cannot change Commission 
policy. If there is an inconsistency between the Commission's 
Enforcement Policy and an EGM, the Enforcement Policy--as a policy 
statement--takes precedence over staff procedures. In an effort to 
ensure that EGMs do not inadvertently revise existing policy, draft 
EGMs are subject to extensive internal review prior to issuance. 
Because EGMs are not intended to establish new or change existing 
Commission policy, they do not require prior review by the Commission 
but in certain cases, EGMs are reviewed by the Commission before being 
issued.
    At the time that EGMs are made public, they are included on the 
Office of Enforcement's (OE's) website. Although public comments are 
not currently solicited prior to issuance of EGMs, interested parties 
may always provide comments for OE's consideration. If warranted, the 
EGM may be revised after public comment. OE is initiating the practice 
of stakeholder review prior to EGM implementation when time permits.

    Question 30. Often research efforts are of an anticipatory nature 
with a general, rather than clear nexus as to how or to whom a benefit 
might accrue. Consequently, research funds are often subject to 
significant scrutiny and criticism as to the value and cost of the 
activity. In the fiscal year 1993 NRC budget authorization, the NRC 
research budget allocation was not included as a ``fairness and 
equity'' item for the public good. Instead, the research budget has 
been funded from user fees rather than being appropriated. Would you be 
in favor of modifying the NRC fee structure such that those elements of 
the research budget not related directly to licensee regulation be 
exempt from recovery via user fees?
    Response. The NRC research budget was not included as a ``fairness 
and equity'' concern in the fiscal year 1993 NRC study because the 
research activities did not meet the criteria that were used for 
identifying such concerns. The activities that were included in the 
study were not directly related to the licensees who paid the fees or 
provided support to both NRC and non-NRC licensees. The costs of NRC 
research activities are directly related to the class of licensees who 
pay the fees.
    NRC's regulatory research program is designed to resolve identified 
and potential safety issues and to provide technical information and 
tools that reduce uncertainties in knowledge and therefore enable the 
NRC to make more realistic decisions. Accordingly, the research program 
is directly related to licensee regulation, resulting in improved 
protection of public health and safety and often avoiding unnecessary 
burdens on licensees.
    NRC research activities are predominantly confirmatory--that is, 
they address specific needs and issues arising out of operating 
experience, plant aging, the decommissioning of licensed facilities, 
and licensee initiatives. This type of research is initiated by a 
specific request by the Office of Nuclear Reactor Regulation or the 
Office of Nuclear Material Safety and Safeguards. Anticipatory research 
areas are identified by the Office of Nuclear Regulatory Research, in 
consultation with other offices, to address issues that the staff 
judges may become important in the future. Historically, anticipatory 
research conducted by the NRC represents a small percentage of the 
regulatory research program, but even that research has had significant 
benefits in maintaining safety, enhancing regulatory effectiveness, and 
reducing unnecessary regulatory burden. For example, extensive research 
to assess the safety significance of plant aging formed the technical 
foundation for both the development of the regulatory framework and 
ongoing decisions on license renewal, which is allowing licensees to 
extend the operating life of their facilities in appropriate cases. 
Further, development of Probabilistic Risk Assessment (PRA) methods not 
only created the groundwork for conducting risk assessments and for the 
current efforts to risk-inform our regulations, but also has supported 
decisions on a number of regulatory issues. Research to better 
understand fission product release, transport and deposition during 
core melt accidents has resulted in a fundamental revision to 
regulatory requirements (i.e., source term), allowing licensees to 
eliminate unnecessary burdens while maintaining adequate protection.
    NRC may be the sole agency which collects the fees to fund its 
research activities from classes of licensees . The critical issue for 
the Commission is the availability of adequate research resources to 
carry out its safety regulatory mission both in the short and long 
term. If the Congress believes that funding a portion of research 
activities from general funds instead of fees is appropriate, the 
Commission is prepared to work with Congress to that end.

    ADDITIONAL COMMENTS FROM COMMISSIONER MCGAFFIGAN ON QUESTION 30.

    I support moving our research program, both anticipatory and 
confirmatory research, off of the fee base and into a general fund 
appropriation. I firmly support a strong NRC research program. I 
believe that our research program benefits both the public and 
licensees. It leads to sounder, independent regulatory decision-making. 
It often permits changes in our rules that reduce unnecessary 
regulatory burdens on the industry. Occasionally, it requires us to add 
new rules to protect public health and safety.
    Unfortunately, some, but by no means all, in industry myopically 
focus on the occasions where NRC research leads to new requirements and 
miss the far more numerous instances when our research program 
validates the opportunities for introducing new technologies or for 
eliminating excess conservatism in the NRC's largely deterministic, 
prescriptive regulatory framework. This framework was put in place 
decades ago when we knew far less and regulators appropriately erred on 
the side of conservatism. Dr. John Ahearne, a former NRC Chairman and 
Chair of the group which wrote the CSIS report, has termed this 
industry view as terribly shortsighted. He has stated that he believes 
Congress made a mistake in requiring that the research budget be paid 
for entirely by licensee fees in the Omnibus Budget Reconciliation Act 
of 1990. I agree.
    The concern of many at NRC is that if Congress makes this change, 
the research budget might be more likely to be reduced in the annual 
Congressional appropriations process. They fear that we could end up 
with an imbalanced program where the program offices would have to 
shelve activities dependent on research results. They believe that if 
the research program continues to reside in the fee base, and Congress 
reduces our budget, we will retain the flexibility to allocate an 
appropriate share of the cuts to research and the program and support 
offices.
    I respect that concern. However, the fact is that our research 
program in the current fee-based framework has been eroded year by 
year. Since 1993 the real reduction in the NRC research budget has been 
about 50%, compared to an overall agency reduction of about 27%. Every 
year the Nuclear Energy Institute questions our research program in 
their annual comments on our fee rule. The 1998 Tim Martin report 
suggested NRC needed no research program at all (in which case we would 
lose our ability for independent analysis and be forced to become an 
inflexible regulator locked into the past.) Our nuclear regulatory 
research budget is now smaller than those of France and Japan, and we 
become ever more dependent on leveraging the larger research programs 
abroad to deal with issues of interest to the industry such as higher 
burnups for fuel. Thus, retaining the research budget in the fee base 
has hardly been a model for success.
    I am willing to accept the possibility of greater scrutiny in the 
Congressional budget process for our research program under a general 
fund appropriation. I believe that such scrutiny, far from leading to 
budget cuts, could lead to budget increases. Congress has traditionally 
been very supportive of the research budgets of other agencies because 
Congress understands the benefits of sound research programs. There is 
a compelling case for our research budget even from a narrow industry 
perspective. Perhaps that case will be clearer to all if the nuclear 
industry ceases to be the sole industry which must pay for the research 
program of its regulator.

    Question 31. The Center for Strategic and International Studies 
published a review of the regulatory process for nuclear power 
reactors. A number of recommendations were identified on 13 issues 
related to NRC operational practices and regulation. How are you using 
these recommendations to improve the performance of the agency? How 
have these recommendations been incorporated in the NRC's Strategic 
Plan?
    Response. As you noted, the CSIS report made recommendations in 13 
areas related to NRC's regulation of nuclear power reactors. The report 
acknowledged that ``. . . many of the recommendations and conclusions 
made here were arrived at independently by the NRC and are already 
under consideration or in place.'' Thus, although we believe our 
Strategic Plan is largely consistent with the CSIS recommendations, it 
is difficult to identify specific changes to NRC's Strategic Plan as a 
result of the recommendations.
    The agency has taken action to improve gency performance in the 
areas addressed in the CSIS report. For example, in the areas 
identified in the report as ``implementation issues,'' the inspection, 
assessment and enforcement processes have been fundamentally redesigned 
since the issuance of the report. Initial implementation of the Revised 
Reactor Oversight Process (RROP) at all operating reactors commenced on 
April 2, 2000. This new process responds to the CSIS recommendations in 
these areas. Similar progress has been made on the four ``emerging 
issues'' identified in the CSIS report. For license renewal, the 
Commission is seeking to build on the success of the first two 
application reviews and to regularize the renewal process by finalizing 
its generic aging lessons learned (GALL) report and its standard review 
plan for license renewal while working with NEI on the standard format 
and content for an application. On license transfers, the Commission 
has anticipated the large volume of applications as a result of 
industry restructurings, and has put in place a framework of guidance 
to speed the staff review. Similar progress is being made in the 
emerging issues mix of decommissioning and risk-informed regulation.
    Finally, with regard to the CSIS issues dealing with NRC processes, 
the Commission has made substantial improvement to the license 
amendment process, and is considering changes to its hearing process 
(as discussed in more detail in our answer to question 9). We are 
discussing improvements to the 10 CFR 2.206 petition process and will 
hold a public commission meeting on proposed staff changes later in 
May. We believe that our rulemaking process continues to deserve the 
high marks given to it by the CSIS report. However, as noted in our 
October 22, 1999 letter to the committee, after careful review the 
Commission decided, contrary to the majority CSIS recommendation, that 
averted onsite costs should be included in backfit analyses pursuant to 
the NRC's backfit rule.

    Question 32a. The process for NRC review and approval of the 
initial two license renewal applications, submitted by Baltimore Gas & 
Electric Co. and Duke Power Co., appears to be on schedule. It is 
anticipated that many license renewal applications will be submitted in 
the near future. Please respond to the following questions about what 
lessons have been learned from the experience with the first two 
license renewal applications and how these lessons are being applied to 
improve the efficiency of the process in the future:
    Are there any new technical issues that came to light as a result 
of the two reviews?
    Response. No new technical issues (types or effects of aging) have 
been encountered. However, both license renewal applicants have 
identified the need for additional programs to manage aging at the 
plants for the extended period of operation. As we continue to review 
different reactor designs, we will remain vigilant to ensure the 
identification of any new technical issues.

    Question 32b. What has been learned about the level of resources 
needed for a license renewal application review?
    Response. The experience gained from the review of the first two 
license renewal applications is expected to result in improvements in 
the efficiency and effectiveness of the license renewal process.
    The NRC and the industry have also identified generic issues 
associated with implementation of the license renewal rule that relate 
primarily to clarification of the regulatory requirements and to 
simplification of the review process. These issues are being resolved 
in parallel with the license renewal applications to improve the 
implementation guidance being issued by the NRC.
    For subsequent license renewal application reviews conducted in 
fiscal year 2000 and fiscal year 2001, the NRC will concentrate on 
process improvements to define the review scope more closely and to 
define future resource needs.

    Question 32c. How is the agency planning to shift staffing and 
budget resources to handle the increased workload in this area in the 
coming years?
    Response. Licensees have formally informed the NRC of plans to 
submit 12 additional renewal applications through fiscal year 2003. The 
NRC is budgeting resources to review these publicly announced license 
renewal submittals and also allow for some consideration of unannounced 
licensee renewal applications. Current budget estimates anticipate that 
the NRC will receive 4 renewal applications in fiscal year 2001, 4 in 
fiscal year 2002, and 8 in fiscal year 2003.
    The staff recognizes the potential resource impacts of the 
unexpected receipt of a large number of renewal applications and has 
encouraged the licensees to inform the NRC of their plans for license 
renewal. The NRC will use its Planning, Budgeting and Performance 
Management process to update the budget in the event of emergent work, 
including license renewal applications of which we were not previously 
aware. The NRC expects efficiency gains in future reviews as experience 
is gained and implementation guidance is improved.

    Question 32d. Has the Commission reached any conclusions about the 
adequacy of existing regulations for the extended term of operation?
    Response. During the review of the first license renewal 
applications and the development of implementation guidance, the NRC 
did not identify any existing regulations that are not adequate for the 
extended term of operation. In fiscal year 2001, after completing 
development of the implementation guidance and gaining more experience 
with application reviews, the staff intends to evaluate the existing 
regulations pertaining to license renewal to determine if any changes 
should be considered.
    The NRC is also addressing the issue of the extent of credit given 
for existing programs to manage aging effects. The implementation 
guidance being developed will catalog aging effects that are adequately 
managed by existing programs and identify those programs that need to 
be augmented. This guidance will provide the basis for crediting 
existing programs and focus future staff reviews on augmented programs 
for license renewal. As discussed in the response to Question 32 (F), 
the implementation guidance is scheduled to be issued in draft form for 
public comment in August 2000.

    Question 32e. In comparison to the 30 to 36 month targets set for 
review of the initial applications, what is the agency's current target 
for reviewing subsequent applications?
    Response. Review of a license renewal application is planned to 
take 30 months or less following receipt of the application. For the 
first two applications, no hearing was conducted and the NRC was able 
to issue the renewed licenses for Calvert Cliffs in 23.5 months. The 
Commission similarly expects to decide on the Oconee application in 
less than 24 months. The NRC will continue to monitor experience and 
seek efficiencies where possible to improve on future schedules.
    We anticipate the future reviews will require less resources per 
application than the initial reviews because of lessons learned from 
the initial applications. These resource savings will be available to 
support the increased number of license renewal applications that are 
under concurrent review.

    Question 32f. What is the NRC's schedule for finalizing the 
Standard Review Plan for license renewal applications?
    Response. The NRC's ``Standard Review Plan for the Review of 
License Renewal Applications for Nuclear Power Plants'' and the 
associated Regulatory Guide, ``Standard Format and Content for 
Applications to Renew Nuclear Power Plant Operating Licenses,'' have 
been available in draft form since 1997. Revisions that incorporate 
experience from the first two renewal reviews are scheduled to be 
issued in draft form for public comment in August 2000 and in final 
form in April 2001. Also planned to be issued on the same schedule is 
the NRC's ``Generic Aging Lessons Learned Report'' that is referenced 
in the standard review plan, and an industry guideline, NEI 95-10, 
``Industry Guideline for Implementing the Requirements of 10 CFR Part 
54--the License Renewal Rule,'' that would be endorsed by a regulatory 
guide.

    Question 33a. Please respond to the following questions relating to 
how the Commission is planning to improve the efficiency of its 
regulatory process for safeguards and security at nuclear power plants, 
especially with regard to taking advantage of lessons-learned from the 
regulatory process improvements being made in other areas of plant 
operations:
    How is the agency planning to carry over the lessons-learned to the 
area of safeguards and security?
    Response. The Commission has directed the staff to: (1) conduct a 
comprehensive review of the regulatory requirements for safeguards and 
security at nuclear power facilities, and (2) proceed with necessary 
rulemaking. The primary goal of these initiatives, which has been 
discussed with stakeholders, is to achieve more efficient, effective 
safeguards and security requirements and to improve regulatory 
processes in this area, including incorporation of lessons learned from 
process improvements to the reactor oversight process. The staff is 
scheduled to provide a proposed rule to the Commission in May 2001, and 
a final rule to the Commission in July 2002, with publication of the 
final rule in late 2002. The status of staff activities in this area 
will be provided to Congress in our monthly report.

    Question 33b. What changes are being planned in regulations to 
improve the focus on aspects of safeguards and security most directly 
linked to safety?
    Response. The Commission has approved the staff 's approach to re-
evaluate the power reactor physical protection regulations and the 
proposed definition of radiological sabotage by providing performance 
criteria as the basis for physical protection regulations. Based on 
discussions with stakeholders in a series of public meetings, the staff 
developed a draft set of physical protection performance criteria in 
terms of public protection that are consistent with criteria used in 
other areas of nuclear power plant regulation. These performance 
criteria will provided the risk-informed basis for the comprehensive 
review of 10 CFR 73.55 and associated power reactor physical protection 
requirements, including requirements to exercise protective strategies.
    These performance criteria will be based on a concept of ensuring 
that a plant retains the capability to shutdown the reactor safely and 
assure long-term heat removal in the face of a malevolent act 
consistent with the design basis threat. The staff is developing a 
proposed revision of 10 CFR 73.55 with requirements to protect the 
plant against such a malevolent act by protecting critical safety 
functions.

    Question 33c. What are the agency's plans for assessing and 
adjusting the level of staff and contracted resources in this area?
    Response. The staff has recently re-evaluated the level of NRC 
staff and contractor resources needed in the safeguards and security 
area as part of the development of the revised reactor oversight 
process. Inspection resources in the reactor physical security area 
were left essentially constant in the revised reactor oversight 
process, compared to the previous inspection program. The staff plans 
to re-evaluate resource requirements for the revised reactor oversight 
process, including the safeguards and security area, after the first 
year of its implementation. In addition, the staff will re-evaluate the 
resources necessary in the safeguards and security area following 
implementation of an acceptable industry program of exercises and 
drills, and again following a review and revision of the reactor 
physical security regulations.

    Question 34. The committee understands that the nuclear industry 
has developed a self-assessment program for security. What changes to 
inspection programs can be made to take advantage of this industry 
program for more effective oversight?
    Response. In the development of the revised reactor oversight 
process, the staff anticipated the future implementation of the 
industry's self-assessment program and some changes to the inspection 
program have already been made. The risk-
informed baseline inspection component of the revised reactor oversight 
process includes inspections that will provide oversight of the self-
assessment program once it is in place. It is noted that the self-
assessment program is currently limited to exercises of protective 
strategies. NRC staff oversight also includes inspections of licensees' 
overall security and safeguards programs, including security access 
authorization, access control, and security plan changes.

    Question 35. Questions have been raised regarding the subject of 
working hours and fatigue at nuclear power plants. What evidence do we 
have that fatigue, in fact, is contributing to operational problems 
within our nuclear facilities?
    Response. In 1999, the NRC conducted a preliminary review of NRC 
inspection findings and plant operational experience related to working 
hours and worker fatigue at nuclear power plants. Findings from this 
review were summarized in a letter dated May 18, 1999, from former 
Chairman Shirley Ann Jackson to the Honorable Edward J. Markey. This 
letter stated that the NRC had attributed few events at nuclear power 
plants to personnel fatigue. However, it also noted that the number of 
events for which fatigue has been a contributing factor cannot be 
reported with certainty given the difficulty of making such 
determinations.
    The staff is reviewing the Commission's Policy on Factors Causing 
Fatigue of Operating Personnel at Nuclear Reactors. During its review, 
the staff will consider: (1) the substantial scientific literature 
documenting the effects of fatigue on human performance; (2) the 
recognition that approximately 50 percent of the events reported 
annually to the NRC involve human performance issues; and (3) existing 
NRC fitness-for-duty requirements.
    In addition, in February of this year the staff met with 
stakeholders for the purpose of better understanding issues and 
concerns associated with this policy and to facilitate the policy re-
assessment process. The staff is currently evaluating the information 
gained through this stakeholder meeting, inspection findings concerning 
the working hours of personnel performing safety-related duties, 
instances of personnel found inattentive to duty, and concerns raised 
to the NRC regarding licensee practices and policies for ensuring that 
personnel who perform safety-related duties are not assigned to work 
while impaired by fatigue. The staff is also reviewing a petition for 
rulemaking (PRM-26-2) which proposes to address the subject of worker 
fatigue at nuclear power plants and is evaluating the information 
gained through the public comments on this petition. The staff 
anticipates that the policy reassessment process and review of PRM-26-2 
will provide greater insights concerning the relationship between 
worker fatigue and plant operational safety and will establish a basis 
for appropriate NRC action on this matter.

    Question 36. The committee is aware that the House Appropriations 
Subcommittee on VA-HUD and Independent Agencies has encouraged the NRC 
and Environmental Protection Agency to enter into a memorandum of 
understanding (MOU), ``in the interest of ensuring that sites do not 
face dual regulation.'' The NRC and EPA have been directed to report to 
the House subcommittee by May 1, 2000, on the status of the development 
of such an MOU. Can you please share with us what progress has been 
made in reaching an MOU?
    Response. Please refer to our response to your Question 2.

    Question 37a. In August of 1998, the NRC pursuant to a statutory 
requirement submitted a report to Congress on the Price-Anderson 
nuclear insurance and liability statute. [The Price Anderson Act--Cross 
the Bridge to the Next Century: A Report to Congress.] In the report, 
the NRC recommends that the Price-Anderson Act be renewed with only a 
few modest changes because the Act ``provides a valuable public benefit 
by establishing a system for the prompt and equitable settlement of 
public liability claims resulting from a nuclear accident.''
    I assume the NRC still stands by this report and supports extension 
of the Price-Anderson Act with few changes?
    Response. The assumption is correct. The Commission still stands by 
its report and supports extension of the Price-Anderson Act for 10 
years with few changes.

    Question 37b. Does the Commission agree that the Price-Anderson 
insurance system worked at Three Mile Island by providing prompt 
compensation to the public?
    Response. Yes. The Price-Anderson Act worked as intended for the 
public by providing prompt compensation in the following ways. The 
insurance pools responded rapidly to the TMI accident by establishing 
an office within 24 hours to pay claims for the living expenses of 
families with pregnant women or pre-school age children who had 
evacuated the five-mile area, at the Governor's suggestion. Families 
affected by the advisory were advanced funds for their immediate out-
of-pocket expenses for food, lodging, transportation and emergency 
medical care. The financial loss caused by the interruption of business 
and loss of wages was compensated later.
    Soon after the TMI accident, numerous lawsuits were filed in State 
and Federal courts in Pennsylvania, alleging various injuries and 
property damages. These suits were consolidated into one suit before 
the Federal District Court in Harrisburg. A Settlement Agreement was 
signed in these cases within two and a half years after the accident 
occurred. Pursuant to the agreement the insurers paid $20 million into 
a Court managed fund for economic harm to businesses and individuals 
within 25 miles of TMI, and $5 million for the establishment of a 
Public Health Fund. Additional sums have been paid out for indemnity 
and expenses in investigating and defending claims.
    However, additional personal injury claims were later filed mainly 
in 1986--1987 and consolidated in the Pennsylvania Federal District 
Court. That consolidated litigation in the Middle District of 
Pennsylvania has not yet terminated. In that respect, it would be 
difficult to conclude that there was prompt resolution. Nonetheless, it 
is important to note several factors which contributed to the extended 
time period.
    1. There were between two and three thousand personal injury claims 
involved.
    2. The Three Mile Island incident was not determined to be an 
extraordinary nuclear occurrence. Thus, special provisions of the Act 
designed to expedite proceedings were not called into play.
    3. This was the first significant litigation affected by the 1988 
amendment's jurisdictional provisions. Thus, some novel issues were 
presented which caused delays that would not be expected to be 
repeated. There were, for example, difficult issues related to state 
laws on time bars to litigation that were affected by the new 
jurisdictional and choice of law provisions as applied retroactively to 
claims allegedly resulting from the 1979 incident.
    4. Summary judgment was granted in favor of the defendants and was 
thereafter appealed, resulting in a partial remand. It is that partial 
remand that is ongoing.

    Question 37c. I understand that the unique Price-Anderson system of 
a pre-paid insurance and retrospective premiums results in almost $10 
billion in financial protection for the public in the event of a 
nuclear accident.
    Response. Your understanding is correct with respect to any nuclear 
accident at a commercial power reactor or Department of Energy 
facility, as well as during the transport of nuclear fuel to or from 
such reactors and facilities.
    With respect to nonpower commercial reactors and reactors operated 
by educational institutions, the maximum amount of indemnity available 
for paying public liability claims is $500 million to be paid by the 
U.S. government under agreements of indemnification. For those required 
by the Commission to have commercial insurance, an additional layer of 
funds could increase the total available for compensating public 
liability claims and paying expenses to $560 million. Requirements for 
insurance are statutorily waived for educational institutions, and the 
government's liability under its indemnification agreements begins 
after the first $250,000 of payments for public liability.

    Question 37d. Would this level of insurance protection exist but 
for the Price-Anderson law?
    Response. Without the Price-Anderson Act, the only insurance 
protection would be from commercial insurers or voluntary industry 
insurance pools. Commercial insurance of $200 million is currently 
available. Under current Price-Anderson Act provisions, each power 
reactor licensed to operate at the time of the nuclear accident would 
be required to contribute, if needed, $83.9 million (assessed in 
payments not to exceed $10 million annually) to a retrospective premium 
utility pool. That sum would compensate injury to the person or 
property of members of the public who were harmed. We have no basis to 
determine what level of insurance would be available without Price-
Anderson.
    Without an extension of Price-Anderson there would also be no 
limitation of the liability for any reactor whose operator had not 
executed an indemnity agreement before the termination of the Act. The 
ability to compensate claims related to reactors not so indemnified 
would be limited to the assets of the parties against whom there would 
be a judgment of liability.
                               __________

 RESPONSES BY RICHARD A. MESERVE TO ADDITIONAL QUESTIONS FROM SENATOR 
                                 SMITH

    Question 1. You have stated that the ``protection of the 
environment'' is one of your agency's strategic goals. EPA has 
indicated that NRC radiation standards for decommissioning are not 
adequately protective. Some have even questioned the NRC's 
qualifications to develop radiation standards. Others charge that it is 
the EPA that is unreasonable in its standards. Some charge that what 
makes matters even more confusing to the licensees, is the EPA's 
inappropriate application of radionuclide Maximum Contaminant Level 
(MCL) drinking water standards to ground water. It is claimed that for 
some radionuclides the MCLs would produce exposures as low as 0.02 
mrem/yr, some 200 times lower than the 4 mrem/yr EPA water standard. 
Please explain the NRC's concerns with EPA's approach and why the 
application of the EPA's MCLs for radionuclides to groundwater is 
inappropriate. Please fully describe the implications of the EPA 
actions and pronouncements for your licensees and the regulatory 
environment. Also discuss, in some detail, the basis and health 
significance of the EPA's concerns regarding the NRC's regulatory 
decisions in decommissioning.
    Response. The NRC has a fundamental disagreement with the EPA 
approach. The NRC believes that individual protection criteria, which 
take into account all pathways, are sufficiently protective of the 
groundwater pathway, and represent a more uniform and comprehensive 
approach to protecting the public health and safety. The NRC is aware 
that differences in NRC's standards (i.e., an individual dose of 25 
mrem/yr from all pathways) and EPA's standards (i.e., an individual 
dose limit of 15 mrem/yr from all pathways and separate requirements 
for the protection of ground water) might suggest that there are 
resulting differences in the level of protection. However, the level of 
protection provided by either standard, when viewed in light of current 
epidemiology, is comparable. For example, EPA has determined that the 
NRC dose limit results in a cancer incidence (not fatality) risk of 5 
x  10-4 and that the EPA dose limit results in a cancer 
incidence (not fatality) risk of 3  x  10-4. Although EPA 
concludes that the NRC standard is not acceptable, the mathematical 
difference in the cancer risk between the two standards is so small 
that the epidemiology would not distinguish between them. Moreover, 
although there is little difference in the level of protection 
provided, analytical and decommissioning costs will certainly increase 
significantly under the EPA approach.
    The NRC all-pathways annual individual dose limit of 25 mrem is 
fully protective of public health and safety and is a suitable standard 
for radiation protection. The 25 mrem/yr limit represents a fraction of 
the national and international public dose limit of 100 mrem/yr. The 
International Commission on Radiological Protection (ICRP) and the 
National Council on Radiation Protection and Measurement (NCRP) use an 
approach similar to NRC'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 
throughout the world and in the U.S. Their findings are contained in 
ICRP Publication 60 and in NCRP Report No. 116, respectively. Based on 
a 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 from all sources as a level 
that can be said to be acceptable. Generally, a principle of 
apportioning this total dose limit is used to constrain specific 
sources of exposure. ICRP emphasizes that these partitions of the 
individual dose standard for individual activities such as waste 
disposal are not dose limits but rather are constraints, above which 
doses would not necessarily be considered unacceptable unless the dose 
exceeded 100 mrem/yr. ICRP recommends a constraint value in the range 
of 30 mrem/yr. In addition, none of the national and international 
recommendations for radiation protection calls for a separate standard 
for groundwater as required by EPA. The drinking water pathway is 
included in the all-pathways approach and there is no reason to single 
it out for a lower dose limit.
    Not only does EPA have a separate ground water limit of 4 mrem/yr, 
EPA implements this ground water limit by establishing maximum 
concentration limits (MCLs) for various radionuclides. EPAs application 
of the MCLs for decommissioning activities is inappropriate for several 
reasons. First, EPA originally derived these limits to protect 
consumers from harmful contaminants in drinking water from public 
drinking water supplies. If the drinking water contamination level was 
too high, the tap could be closed and the water further treated to meet 
these standards. However, without a technical justification or cost 
benefit analysis, EPA is attempting to apply MCLs to protect ground 
water. The MCLs were not designed as a ground water protection standard 
and are inappropriately being applied in this area.
    Second, MCLs, as they exist today, result in non-uniform risk 
protection levels for the various radionuclides. The EPA's MCLs may 
have appeared to be reasonable standards when they were developed in 
the mid-seventies. In view of what is known today, however, about risk 
posed to individual organs by radiation exposure, the MCLs for 
individual radionuclides provide levels of protection that vary 
significantly (risk values vary more than 10,000 fold). In effect, the 
MCLs for radionuclides with exposures much below 4 mrem/year (to as low 
as 0.02 mrem/yr) become the effective standard for the site as they 
establish very limiting conditions for acceptability which could result 
in resource expenditures without additional protection to public health 
and safety. The NRC strongly objects to the application of MCLs that 
result in non-uniform risk levels because such practices (1) contribute 
to greater confusion about the level of risk that is acceptable and 
attainable and (2) undermine confidence that the health and safety of 
the public are being protected. There is no sound scientific or 
technical basis for the arbitrary range of protection afforded by EPA's 
MCLs.
    Finally, the inappropriate application of MCLs to decommissioning 
not only provides no additional benefit to public health and safety, 
but also adds complexity and additional cost to any demonstration of 
compliance with the regulations.

    Question 2. You are developing an MOU with the EPA to resolve the 
confusion associated with EPA's activities regarding decommissioning of 
nuclear facilities. What progress have you made so far? Is the EPA's 
Office for Air and Radiation the lead for this activity? Please explain 
the role of that Office and the Office of Water in this effort.
    Response. In report language to H.R. 2684, August 1999, it was 
stated that EPA should continue its policy of deferring to NRC for 
cleanup of NRC licensed sites. Both agencies were requested to report 
by May 1, 2000, on development of a Memorandum of Understanding (MOU) 
that would clarify EPA's involvement at NRC sites, when requested by 
NRC. The Commission responded to Congressional oversight committees, 
including this committee, on May 1, 2000, on the status of the 
development of such an MOU and stated that it reserved any conclusion 
as to whether an MOU will be achievable. The NRC will keep the 
committee informed about the status of the MOU.
    Limited progress has been made on developing an MOU. Mr. Timothy 
Fields, EPA Office of Solid Waste and Emergency Response sent a 
February 17, 2000, letter to Dr. William Travers, NRC Executive 
Director for Operations indicating that Mr. Larry Reed would serve as 
the EPA point of contact for development of the MOU. This letter 
enclosed a memorandum providing EPA guidance that is intended to 
clarify EPA's role under the Comprehensive Environmental Response, 
Compensation, and Liability Act at facilities previously or currently 
licensed by NRC. These materials provided by Mr. Fields suggested to 
NRC that the differences in each agency's policy may not be resolvable 
without legislation.
    On February 23, 2000, NRC sent a letter to EPA Administrator 
Browner, that enclosed a draft MOU between EPA and NRC on the 
decommissioning and decontamination of NRC-licensed sites, consistent 
with the House Report language. The proposed draft MOU included 
provisions that the NRC would provide notice to the EPA of those cases 
in which the NRC's all-pathways residual radiation dose may exceed 
EPA's preferred all-pathways limit of 15 mrem/year and of those cases 
in which NRC requests EPA consultation. These proposals would provide 
finality, avoiding potential dual regulation for NRC-licensed sites by 
relying on the NRC's decision on license termination. Because the MOU 
is the subject of on-going negotiations between the two agencies, the 
draft MOU was not made public.
    On March 14, 2000, NRC responded to Mr. Fields' February 17, 2000, 
letter. The NRC letter requested initiation of a process that would 
lead to finalizing an MOU to eliminate dual regulation at 
decommissioning sites consistent with NRC and EPA requirements.
    On March 22, 2000, Mr. Fields, EPA, responded to the NRC letter 
indicating EPA was optimistic about the development of a workable MOU 
that would address the sites in a protective manner without dual 
regulation.
    Subsequently, each agency's representative for development of the 
MOU met on March 27, 2000, and April 24, 2000, to discuss each agency's 
policies and processes related to site decommissioning and to discuss 
options for development of an MOU. At the April 24, 2000 meeting, both 
agencies exchanged ideas concerning language for an MOU. Each agency 
agreed to meet again on May 23, 2000, which will provide an additional 
opportunity to discuss options for development of an MOU. NRC staff 
have also been meeting with EPA Office of Radiation and Indoor Air 
(ORIA) and EPA Region I to develop a protocol that addresses site-
specific cases.
    In the past, the NRC has offered legislative language which would 
amend the Comprehensive Environmental Response, Compensation, and 
Liability Act to address the Commission's concerns with dual 
regulation. In 1997, H.R. 3000 contained language in this regard that 
was acceptable to the Commission. If current efforts to create an 
acceptable MOU between the two agencies fail, the Commission would 
support a legislative solution.

    Question 3. Please explain the rationale for the Commission's 
decision to move the Technical Training Center from Chattanooga to 
Maryland. Also please provide a cost-benefit analysis for this decision 
including the initial capital cost required for this effort.
    Response. In February 2000, the Commission reached a unanimous 
decision to relocate the NRC Technical Training Center (TTC) from its 
existing location in Chattanooga, Tennessee, to a location near the NRC 
headquarters buildings in Rockville, Maryland. The Commission considers 
it important to establish a more robust technical training program in 
headquarters, where approximately 1,900 of the approximately 2,800 NRC 
staff members are located. Relocating the TTC staff and functions, 
along with the four full scope reactor training simulators which model 
the operational reactor vendor designs in the U.S., would enable the 
NRC to enhance the level of training for headquarters personnel who 
currently do not take full advantage of the TTC facilities because of 
concerns about the associated travel involved. The Commission also 
believes that the rapidly changing regulatory environment and the 
emergence of new technologies require that the TTC staff work more 
closely with NRC Headquarters managers and technical experts to 
increase awareness of current agency activities and perspectives in 
order to integrate these perspectives more fully into ongoing training 
courses.
    Prior to Commission consideration of alternatives, the NRC 
contracted with a private firm, Grant Thornton LLP, to perform an 
independent estimate of the costs of relocating the TTC and personnel 
to a location near NRC headquarters in Rockville to estimate the costs 
for maintaining and operating the TTC in Rockville versus Chattanooga, 
and to prepare a break even analysis that identified the amount of time 
it would take the NRC to recoup the relocation costs. The conclusions 
from the independent cost study were that the costs to establish the 
TTC in Rockville would be between $3.9 million and $4.2 million 
depending on the number of simulators being moved, that only a small 
percentage of the cost of establishing the TTC in Rockville could be 
recovered, and that there were no break even points for any of the 
scenarios considered by the cost study within the 10-year life cycle. 
Subsequent to the completion of the independent cost study, additional 
scenarios not identical to those depicted in the Grant Thornton LLP 
final cost study report were considered and evaluated using the same 
assumptions and methodology as used for the independent cost study. In 
reviewing and studying the results, the Commission determined that over 
a 10-year period there would be neither significant increased costs nor 
significant savings as a result of relocating the TTC. The one-time 
costs to implement the Commission's decision to relocate the TTC with 
all four reactor simulators to the NRC headquarters area, as announced 
on February 24, 2000, were estimated at $4.5 million.
    On February 24, 2000, Senator Fred Thompson, Chairman, United 
States Senate Committee on Governmental Affairs, requested that the 
General Accounting Office (GAO) perform an analysis of the costs and 
benefits associated with the Commission's decision to relocate the TTC 
from Chattanooga to Rockville. On March 16, 2000, the Commission 
decided to delay implementing the decision to relocate the TTC until 
the GAO has had an opportunity to conduct an independent study of the 
issue. The Commission directed the NRC staff not to take any action to 
carry out the Commission's previous direction to move the TTC to 
headquarters until the GAO issued its report and the Commission has had 
an opportunity to review its recommendations. This GAO audit began in 
April 2000; it is our understanding that the GAO report may be issued 
in 5-6 months.

    Question 4. In case there are delays in the finalization of the 
high level waste repository, how prepared is the NRC to ensure that 
there is enough storage capacity, and, specifically, is the spent fuel 
cask certification process adequately addressing the needs of the 
industry?
    Response. Because the time of availability of a geologic repository 
remains uncertain, the NRC staff has undertaken several initiatives to 
respond to utilities' interim spent fuel storage needs, including 
giving high priority to the review of dual-purpose cask systems that 
accommodate the need for both spent fuel storage and transportation. We 
have certified 12 generic, spent fuel storage cask designs and 
anticipate certifying 2 additional designs by the end of fiscal year 
2001. Of these 14 spent fuel storage designs, 7 will be dual-purpose 
casks. So far, 13 reactor sites are utilizing dry cask storage 
technology and 18 additional reactor sites plan to implement dry cask 
storage in the near future.
    The NRC is also working with industry on spent fuel storage options 
at away-from-reactor sites which would store spent fuel from multiple 
reactor sites. The Private Fuel Storage, Limited Liability Corporation, 
a private consortium of eight utilities, submitted an application in 
1997 for an ISFSI on a site leased from the Skull Valley Band of 
Goshute Indians in Utah. This application is currently under review and 
subject to hearing before an Atomic Safety and Licensing Board. Also, 
in late fiscal year 2001 we anticipate receiving an application from 
the Owl Creek Energy Project for a privately-owned, ISFSI to be located 
in Fremont County, Wyoming.
    NRC staff has made changes to streamline and make the technical 
review process more predictable and stable. These review process 
changes ensure that storage and transport portions of well-prepared 
applications are reviewed and approved within 13 months of the start of 
the review, an improvement of about 1 year over previous review time 
estimates. The rulemaking certification process will add an additional 
11 months, for an overall approval schedule of approximately 2 years.
    The NRC staff is working to further improve and streamline the 
review and regulatory process. For example, the NRC staff is working 
with industry to develop implementing guidance for the recently revised 
10 CFR 72.48, which will be effective mid fiscal year 2001. This 
revised regulation will allow certificate holders (cask vendors) to 
make minor, non-safety significant changes to their cask design without 
obtaining prior NRC approval, (i.e., amending the certificate). The NRC 
continues to work with industry on regulatory and technical issues of 
mutual concern, such as shipping and storing high burn-up fuel, the use 
of burn-up credit, and certificate of compliance and license renewal.
    NRC maintains cognizance of the status of power reactors and their 
capability to store spent fuel. The NRC will continue to maintain 
awareness of any potential delays in the Department of Energy's waste 
disposal program.
    In summary, while the staff has already approved multiple spent 
fuel storage cask design options, we continue to work with stakeholders 
to improve the regulatory process and provide increased on-site and 
off-site storage options.

    Question 5a. The NRC has made serious strides to change its 
regulatory thinking, i.e., the move towards a risk-informed approach. 
This approach will identify some activities that may require more 
attention and resources and some that should be dropped because of 
their low risk.
    What are those activities that would require more resources and 
what are those that are candidates for elimination?
    Response. The NRC, through its current programs and planned 
initiatives, is implementing a risk-informed approach to its full range 
of regulatory activities: rulemaking, licensing, inspection, 
enforcement, performance assessment, and event response. Our experience 
has shown that each activity contains a mix of risk-significant and 
non-risk significant issues. The risk-informed approach does not 
provide a basis for dropping any of these activities. However, within 
each activity, the risk-informed approach allows the agency to 
concentrate its resources, and the resources of licensees, on those 
issues which have the greatest risk-significance. For example, under 
the new reactor oversight process, each NRC inspection finding will be 
evaluated using a significance determination process (SDP). Only those 
findings which can be shown to have a significant effect on public 
risk, or those such as discrimination or intentional violation, will 
result in follow up action by our Regional Offices. This new approach 
will ensure that risk-significant issues receive the appropriate level 
of attention.
    A second example relates to the NRC response to operational events. 
When a potentially significant operational event occurs at a reactor in 
the United States, the NRC conducts an inspection to determine the 
proper agency response. These inspections may involve various size 
teams of NRC staff. The newly implemented agency practice is to 
evaluate the risk-significance of the event, and use that assessment as 
a major input to the decision regarding what level of follow up 
inspection is conducted.
    Our approach to risk-informing 10 CFR Part 50, through evaluation 
of the special treatment requirements for systems, structures, and 
components, will likely result in reduction in regulatory oversight for 
those areas that only contribute marginally to controlling plant risk. 
For other areas, this approach may identify the need for additional 
regulatory treatment. This effort is currently in progress, and it is 
not possible to state definitively which areas will fall into the high- 
and low-risk categories.
    In summary, the risk-informed approach will provide the basis for 
concentrating agency resources on those regulatory issues which have 
potential significance to public risk, while placing less emphasis on 
those issues which have only marginal impact on risk. We expect that 
the overall effect of these changes will be an increase in the 
efficiency of our regulatory program. However, it will not, in and of 
itself, result in the elimination of any major regulatory activities.
    The results of a risk-informed evaluation of agency activities also 
provides input to the overall Planning, Budgeting and Performance 
Management (PBPM) process. In the context of that process, resources 
are prioritized according to the contribution of activities to meeting 
the agencies four performance goals (maintain safety, increase public 
confidence; increase effectiveness, efficiency, and realism; reduce 
unnecessary regulatory burden). Other things being equal, activities 
that have a low-risk significance would be assigned lower priority and 
thus be allocated less resources.

    Question 5b. Also, please explain the more significant concerns 
expressed by our stakeholders if the agency becomes more performance-
based and less prescriptive.
    Response. The NRC has had the benefit of interacting with a wide 
variety of stakeholders on the subject of performance-based regulation. 
In addition to correspondence on published material, the interaction 
has occurred at two public workshops which were conducted as 
facilitated discussions.
    Many participants at the meetings were advocates for performance-
based approaches. It appears that application of the performance-based 
approach, which emphasizes results and objective criteria, does not 
itself cause much concern. However, some concerns have been noted 
regarding the NRC's initiatives to develop and apply performance-based 
approaches. The concerns may be characterized as ``implementation 
issues'' and ``trust issues.'' Moreover, the foundations for 
deterministic and prescriptive regulatory requirements in technical 
fields are easier to communicate than performance, risk-based 
requirements, and hence appear to raise fewer concerns.
    The implementation issues appear to arise from past NRC practices 
that are seen as inconsistent and incoherent. For example, some 
stakeholders have expressed concern that the regulatory approaches 
followed by the regions and headquarters staff have not always been 
consistent with each other. Some have also stated that documents which 
describe regulatory improvement efforts present positions with merit, 
but the actions taken by NRC based on those positions seem to be at 
odds with the expectations developed from the documents. Stakeholders 
who feel this way seem to believe that performance-based approaches to 
regulation will increase flexibility and hence the likelihood that 
staff's actions will differ from the documented intent of the 
regulatory requirement.
    The trust issues appear to arise from a perception that industry 
representatives have inordinate influence on NRC decisions. For 
example, a concern has been raised that the NRC may accept performance 
data reported by licensees without subjecting such data to rigorous 
scrutiny. Some appear to perceive too much industry influence in 
setting the performance standards as well.
    The NRC is paying close attention to such concerns as we develop 
and implement performance-based regulatory approaches. Public 
involvement is being emphasized to a much greater extent and a wider 
range of stakeholders are being sought to provide public input. Basic 
policies and principles which have been articulated by the Commission 
will be explicitly used as the foundation on which regulatory practice 
will be conducted. Every attempt is being made to maintain an alignment 
between our principles and our practices.
    In addition, our staff has displayed a questioning attitude with 
respect to changes in oversight programs (inspection, assessment, 
enforcement). We encourage this type of attitude in our licensees, and 
view it as healthy for the staff as well. We are continuing to reach 
out to our staff and solicit feedback, and will make changes as 
appropriate. As the new reactor oversight process is implemented and 
improved, and inspectors become more familiar with it, we believe 
confidence and acceptance will increase.
                               __________

  STATEMENT OF RALPH BEEDLE, SENIOR VICE PRESIDENT AND CHIEF NUCLEAR 
                   OFFICER, NUCLEAR ENERGY INSTITUTE
                         INTRODUCTORY COMMENTS

    Chairman Inhofe, Ranking Member Graham and distinguished members of 
the subcommittee, I am Ralph Beedle, senior vice president and chief 
nuclear of fleer at the Nuclear Energy Institute, the Washington, D.C. 
policy organization for the nuclear industry. I am pleased to testify 
regarding the performance of the commercial nuclear industry and the 
industry's safety regulator, the Nuclear Regulatory Commission.
    The Nuclear Energy Institute (NEI) establishes industry policy 
positions on various issues affecting the nuclear energy industry, 
including federal regulations that help ensure the safety of the 103 
operating commercial nuclear power plants in 32 states. NEI represents 
275 companies, including every U.S. utility licensed to operate a 
commercial nuclear reactor, their suppliers, fuel fabrication 
facilities, architectural and engineering firms, labor unions and law 
firms, radiopharmaceutical companies, research laboratories, 
universities and international nuclear organizations.
    The United States has the largest commercial nuclear power industry 
in the world, with more than 2,200 reactor years of operating 
experience. More than 100 nuclear power plants continue to safely and 
reliably produce nearly 20 percent of America's electricity. Over the 
past decade alone, improvements in nuclear plant operating efficiency 
have effectively added the equivalent of twelve 1,000-megawatt plants 
to the national electric grid. The U.S. nuclear industry also is the 
global leader in the development of advanced nuclear power plant 
technology. The foundation for this leadership role is the extensive 
use of nuclear power in this country and the industry's outstanding 
safety and performance records.
    Nuclear power provides our nation with tremendous environmental 
benefits. Without nuclear energy, the United States could not meet air 
quality standards established by the Clean Air Act or international 
commitments to reduce greenhouse gases, including carbon dioxide. 
Nuclear power plants are the nation's largest emission-free source of 
electricity, and they produce power at a competitive price--with 
production costs that are only a fraction of a cent higher than coal-
fired electricity and substantially cheaper than natural gas, solar or 
wind power.
    Within Congress, and indeed across the United States, there is a 
growing awareness that nuclear power is a proven, dependable technology 
and a vital part of our nation's electricity generating system. Nuclear 
energy will become even more essential if our nation is to meet the 
multi-faceted demands of economic expansion, environmental stewardship 
and population growth in the 21st Century.

                   NUCLEAR ENERGY: SAFE AND RELIABLE

    The U.S. electricity industry is rapidly changing, and America's 
nuclear industry embraces the challenges and the opportunities of the 
new competitive marketplace. Most U.S. utilities with nuclear energy 
are well positioned for competition.
    The performance of U.S. nuclear plants has in each of the last two 
years reached record high levels. In a restructured electricity market 
that eliminates the rate base, a fully depreciated nuclear plant will 
demonstrate enormous economic potential. Recognizing nuclear energy's 
success and its importance both to economic growth and environmental 
protection, we ask the subcommittee to maintain its oversight of the 
Nuclear Regulatory Commission. Today's outstanding nuclear power plant 
performance and safety must be maintained for the long term. The NRC's 
transition to a nuclear plant oversight process that focuses on safety 
is an important component for the future nuclear energy industry.
    Attached to this testimony is the 1999 list of the World 
Association of Nuclear Operators' (WAND) performance indicators for 
nuclear reactors.
    The nuclear industry's continued commitment to safe nuclear plant 
operation must be accompanied by the NRC's commitment to fulfill its 
mission as an effective and credible regulator. Both are essential to 
maintain public trust and confidence in nuclear energy. In addition, 
Congress must continue strong oversight over the NRC and support the 
regulatory changes being made by the NRC.

                   RELICENSING AND LICENSE TRANSFERS

    Nuclear power plants are valuable and highly marketable facilities, 
with some plants being sold by those companies choosing to leave the 
electricity generation business. In addition, the owners of the vast 
majority of nuclear power plants are expected to extending the 
operating licenses for an additional 20 years. The market demand for 
nuclear power is evident in the purchase of Three Mile Island 1 and 
Clinton nuclear power stations by AmerGen Energy Co., and the purchase 
of the Pilgrim nuclear power plant by Entergy Operations Inc. Future 
power plant sales and anticipated consolidations in the industry will 
require the NRC to transfer operating licenses in a timely manner.
    The NRC has recognized the importance of swift action in these 
transactions, and the agency should be commended for its attention to 
improving the license transfer process. The commission should continue 
to ensure timely reviews and disciplined licensing board proceedings 
related to license transfers and amendments.
    Baltimore Gas & Electric Co., Duke Power Co., Entergy and Southern 
Nuclear Operating Co. have filed applications with the NRC to extend 
operations at eight nuclear reactors for additional 20-year periods. 
Electric companies have announced they will file applications with the 
NRC to extend the plant licenses at 22 other reactors during the next 
four years. License renewals and transfers will become more frequent as 
electric utilities reposition themselves in a competitive electricity 
market.
    A competitive market requires efficient, standardized and timely 
license renewal and license transfer processes. Because the economic 
viability of a license transfer proposal can be impacted by a 
commission review, such processes are essential to enable nuclear 
operating companies to make timely and effective business decisions. An 
expeditious relicensing process best serves the public interest.
    The NRC is expected to meet the original 30- to 36-month target for 
completing the initial two license renewal applications, submitted by 
Baltimore Gas & Electric Co. and Duke Power Co. In fact, those 
applications are being completed ahead of schedule.
    Using the experience of the first two reviews to refine the 
process, future relicensing efforts should continue to be streamlined. 
The NRC's performance on license renewal applications is an example of 
the agency working in an efficient manner to accomplish an important 
objective. A true test of the NRC will be the agency management's 
ability to shift staffing and budget resources to review a larger 
number of nuclear plant licensing extension applications expected in 
the coming years. It is essential that the NRC incorporate efficiencies 
that have been learned during the first two license renewal 
applications into future license renewal applications.

                         NRC REGULATORY REFORM

    A credible and effective regulator is vitally important to the 
nuclear power industry. The new oversight process better focuses 
resources on those aspects of plant operation most directly linked to 
safety. The new system will continue the baseline inspection program 
for all plants. Those plants that do not meet the highest level of 
performance, as measured by 19 key plant performance indicators, will 
receive increased inspection and oversight.
    In moving to this new system, the NRC is replacing an oversight 
process rooted in subjective plant performance ratings with a safety-
focused assessment process that uses objective measures of key plant 
performance.
    This new safety-focused regulatory oversight process retains the 
baseline NRC inspection program at nuclear power plants. NRC inspectors 
will continue to work at each nuclear power plant, monitoring 
operations on a daily basis. In addition, the nuclear energy industry, 
both through the plant owners and the Institute of Nuclear Power 
Operations (INPO), continually performs on site plant evaluations and 
self-assessments.
    By focusing its resources on safety-related issues, the NRC can 
carry out its mission most effectively. As NRC Commissioner Nils Diaz 
testified in July 1998, the need to change the NRC's regulatory 
approach ``is not an indictment of the past, but a requirement of the 
future.'' Like the industry it regulates, the NRC must adapt to a 
changing environment.
    Mr. Chairman, I would like to emphasize the importance of this 
subcommittee's support and oversight of the NRC in recent years. 
Congressional oversight hearings have been instrumental in encouraging 
the NRC commissioners and staff to move forward on many long-standing 
issues, such as implementing the safety-focused, performance-based 
approach for assessing nuclear power plant operations using objective 
plant performance measures. Positive change is underway at the NRC--
change for which you and the commission both deserve credit.
    Continued congressional oversight, coupled with periodic NRC public 
meetings among all stakeholders, is producing the desired regulatory 
change at the agency. There is general consensus among the NRC and its 
stakeholders that nuclear safety will be enhanced by a more objective 
prioritization of resources based on quantifiable safety significance 
to plant operations. Building on this consensus for change, the 
industry strongly urges this subcommittee and Congress to continue its 
support and oversight of the NRC as it moves to a new regulatory 
system. Congressional oversight can help keep the agency focused on the 
essential public policy concern--maintaining a high level of public 
safety. In that light, I would appreciate the opportunity to return and 
tell you about the nuclear energy industry's progress soon after the 
107th Congress convenes next year.

                         PILOT PLANT EXPERIENCE

    After a year long development phase, the NRC tested the new 
oversight process at 13 reactors in seven states during June-November 
1999. The new oversight process used 19 indicators to gauge plant 
performance in three areas: plant safety, radiation safety and 
security. Performance for each indicator was measured during the course 
of the pilot program and placed in one of four color-coded bands. The 
color-coded indicators of plant performance will be posted quarterly on 
the NRC's website--along with key findings from quarterly plant 
inspections. Preliminary data from performance indicators for all 103 
reactors show that 98 percent of all indicators are at the highest 
level of safety.
    The pilot program served its primary purpose by testing the 
performance indicators and ensuring that participants understand how to 
calculate and report data in each area to the agency. The industry and 
the agency evaluated the new processes during the pilot program, and 
modifications have been made to the program in preparation for an 
anticipated industrywide rollout in spring 2000. The evaluation and 
modification period should continue through the end of the initial year 
of implementation at all plants.
    NEI believes that the new oversight process, coupled with the 
industry's commitment to safety, will achieve the following goals:
     ensure that nuclear power plants continue operating safely
     improve NRC efficiency by focusing resources on those 
areas most important to safety
     reduce unnecessary regulatory burden on licensees
     improve public access to information on the safe operation 
of nuclear power plants.

       GAO REAFFIRMS NEED FOR NRC TRAINING AND STRATEGIC PLANNING

    The nuclear industry shares the concerns of this subcommittee 
regarding the results of the recently released General Accounting Of 
flee survey of the attitudes of NRC employees. The study reports that 
some NRC employees are skeptical of the shift toward safety-focused 
regulations and a new assessment process. In reviewing those 
conclusions, however, this subcommittee should not lose sight of an 
important finding: The GAO study showed that the NRC staff--by a 2-to-1 
margin--believes that the transition to a regulatory process that 
incorporate risk insights will improve nuclear plant safety.
    Despite staff skepticism, the GAO study also confirms that change 
is beginning to take hold at the agency. Employee concerns voiced in 
that study are typical of any large organization in transition. The GAO 
conducted its survey in August and September of last year, but since 
that time the NRC has completed its pilot program and conducted 
internal and external evaluations of the program that involved staff in 
each NRC region.
    In its assessment of NRC staff attitudes, the GAO concluded that 
there is a need for long-range planning and training by the agency as 
its makes this significant transition to a new oversight process. 
Planning and training are essential to improve NRC employee 
understanding and acceptance of the new oversight process. The GAO 
concluded that reform efforts were being hindered by the lack of a 
detailed NRC strategic plan with quantifiable goals and objectives. The 
industry also believes that the lack of adequate training for NRC 
employees and the failure to implement a long-term strategic plan could 
be impediments to the effective and efficient implementation of the new 
oversight process.
    Given this recent release of the NRC's strategic plan, the industry 
has had time for only a preliminary review of the plan, but we believe 
that the NRC's strategic plan as drafted is not sufficient to guide the 
agency during this period of significant change. The industry agrees 
with the GAO that the NRC must implement a more comprehensive strategic 
plan to assist the agency's transition to a new regulatory framework. 
Many of the concerns voiced by NRC staff to the GAO may stem from a 
lack of effective communication between the commission and staff 
regarding the new regulatory oversight process. Making the NRC long-
range strategic plan more detailed should be a major step in the 
agency's earning the support of those staff who are reluctant to 
embrace change. We suggest that the NRC's strategic plan be revised to 
specifically include the following principles:
     a safety-focused regulatory framework that incorporates 
risk insights;
     a more efficient and accountable regulator;
     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.
    This multi-year plan also should include an annual planning process 
that establishes a meaningful set of NRC objectives with measurable 
results. The long-range strategic plan should integrate the principles 
of regulatory reform outlined in this testimony, with measurable goals 
and objectives to demonstrate progress to achieve reform of the 
regulatory system. It also should recognize improved plant safety and 
performance and account for new demands on the regulatory process, such 
as license renewal and transfer procedures, resulting from the 
transition to a competitive electricity market.
    The commission must examine what appropriate levels of staffing and 
budget are required for future years. The NRC should optimize its 
resources, including an examination of its organizational structure, to 
conform to the new regulatory oversight process. The commission also 
should allocate resources in a manner that ensures adequate staff 
support.

                  NRC SHOULD SEEK LEGISLATIVE CHANGES

    The nuclear industry also believes that several legislative 
proposals regarding the NRC deserve the support of this committee. NEI 
supports each of the legislative proposals forwarded last year by the 
NRC to Congress. Amending the Atomic Energy Act with respect to foreign 
ownership, eliminating antitrust reviews at the NRC and providing for 
flexibility in the hearing process are particularly important.
    NEI appreciates the efforts of this subcommittee and the full 
Environment and Public Works Committee in passing S. 1627 and 
forwarding it to the Senate for consideration. Although we were 
disappointed that several of the provisions recommended by the NRC were 
not included in the bill, the industry will continue to work with each 
of you to solve problems with those provisions so that they may become 
law.
    In addition to the legislative changes recommended by the NRC, NEI 
urges the subcommittee to consider amending the Atomic Energy Act to 
allow the NRC more flexibility in the way that it is organized. Current 
law requires that the NRC organization include certain divisions. Those 
restrictions should be removed from the statute, and the commissioners 
should be allowed to organize the agency in a manner that is most 
effective and efficient and that reflects the changing regulatory 
environment.

                  NUCLEAR INDUSTRY USER FEE ADJUSTMENT

    Current law requires the NRC to collect approximately 100 percent 
of its budget through licensee user fees. Most of those fees are 
collected as a generic assessment equally levied against all licensees, 
creating, in effect, a ``miscellaneous'' category to describe nearly 80 
percent of the NRC's budget. This practice is contrary to sound and 
accountable budgeting. By collecting the vast majority of its budget 
from a general user fee assessment, the NRC has failed to provide 
Congress and the industry with the budget data and information 
necessary for a thorough and complete evaluation.
    In testimony last year before this subcommittee, NEI urged Congress 
to ensure that the NRC adheres fully to the requirements of the Omnibus 
Budget and Reconciliation Act of 1990 and submit legislation, if 
necessary, to modify the NRC fee structure so that licensees are 
assessed fees only for those NRC programs related directly to licensee 
regulation. Unrelated agency expenditures, such as international 
activities and regulatory support to agreement states or other federal 
agencies, should be excluded from nuclear plant licensee user fees. 
Instead, NEI recommended that those costs be included in a specific 
line item in the NRC's budget, subject to the authorization and 
appropriations process. Finally, the industry urged Congress to 
reexamine the agency's ability to collect user fees annually until the 
commission completes its regulatory reform initiatives.
    As directed by this subcommittee in 1999, the agency is making 
commendable progress to remedy the problem of user fees supporting NRC 
activities unrelated to licensee activities. While these non-licensee 
related NRC activities may be beneficial, they do not directly relate 
to the regulation of agency licensees. The commission's budget for 
FY2001 proposes that the NRC collect approximately 98 percent of its 
budget from user fees levied on licensees, excluding funding from the 
federal Nuclear Waste Fund. Each fiscal year from 2001 through 2005, 
the proportion of the NRC budget derived from user fees will decrease 
by 2 percent. By 2005, user fees should represent 90 percent of the NRC 
budget base rather than the entire budget. While this is an important 
first step by the NRC, the most equitable outcome would be an immediate 
reduction in the user fee by the entire $50 million being spent on 
unrelated activities.

                            DUAL REGULATION

    Since the agency's formation in 1975, the NRC has been effective in 
developing and implementing radiation safety standards to protect 
public health and safety. Due to duplicative and overlapping regulatory 
authority, the Environmental Protection Agency (EPA) has become 
involved in the NRC's regulatory process, most notably in the 
decommissioning and remediation of NRC-licensed sites. For example, the 
EPA has challenged the NRC regulatory program in written comments and 
public meetings, and it has threatened to overturn NRC regulatory 
decisions by listing decommissioned sites on the National Priorities 
List (NPL) under Superfund authority. Such dual regulation diverts 
licensee resources, increases costs and reduces the effectiveness of 
regulation by the federal government without measurably improving 
public health and safety. It also undermines public trust and 
confidence in federal regulation of nuclear technology.
    Mr. Chairman, Congress cannot afford to let the federal government 
waste public and private resources on overlapping regulatory activities 
that do not improve public health and safety. This subcommittee has 
jurisdiction over both agencies, and the industry encourages you to 
eliminate dual regulation of NRC-licensed facilities and to reaffirm 
the NRC as the sole and proper authority for assuring radiation safety 
at those facilities.

                          RADIATION STANDARDS

    Protection of public health and safety is the industry's priority, 
and this concept extends to the practice of sorting solid material that 
can be removed from nuclear power plant and other facilities that use 
nuclear technologies without safety consequences. These materials are 
slightly radioactive, but significantly less so than low-level 
radioactive waste or used nuclear fuel, both of which must be disposed 
at facilities licensed by the federal government. The NRC has 
established safe standards for the control of liquids and gases at 
these facilities, but no consistent federal standard has been 
established for the removal of solid materials. Good public policy 
demands consistency in the application of government regulations for 
all materials.
    In the interests of good public policy, the NRC is considering a 
rulemaking to set standards for the removal of safe solid materials and 
equipment to and from nuclear facilities. Materials above the NRC safe 
release standard would continue to be fully regulated with regard to 
safe handling, transportation and disposal. No high-level radioactive 
waste or used nuclear fuel would qualify for safe uncontrolled release 
under this type of standard. NEI commends this NRC initiative and 
encourages the agency to move expeditiously through formal rulemaking 
to establish a safe standard for removal of solid materials.
    The international community has established guidance for the 
removal of solid materials through the International Atomic Energy 
Agency (IAEA). Member states of the European Community must have 
clearance regulations in place by May of this year. On Aug. 31, 1999, 
the American National Standards Institute approved ANSI/HPS N13.12, 
``Surface and Volume Radioactivity Standards for Clearance,'' which the 
NRC could endorse. It is time for this nation to establish a standard 
for the clearance of safe materials from nuclear facilities, and the 
NRC is the appropriate federal agency to do so.

                         SUMMARY OF KEY POINTS

     In 1999, the nuclear power industry had a record year for 
safety and electricity production. In fact, there has been a steady 
improvement in nuclear power plant safety, as demonstrated both by NRC 
and industry plant performance indicators. Through November of last 
year, the average capacity factor for all 103 reactors was 86.8 
percent--a 9.2 percent increase over 1998.
     This outstanding safety record has set the stage for the 
NRC's transition to a new nuclear power plant oversight process. This 
process will focus attention on those areas of the plant most important 
to ensuring safety, as indicated by a regular NRC inspection program 
based on 19 plant performance indicators. Continued congressional 
oversight of the NRC and support for this new process by this 
subcommittee is important to continue a successful transition to 
safety-focused oversight.
     As the General Accounting Office's study of the NRC's new 
oversight process reveals, change is beginning to take hold at the 
agency. However, there is some skepticism of the new process among NRC 
staff, as one might expect during this kind of transition by a large 
organization. GAO recommends that the NRC implement additional training 
and planning to educate the agency workforce on this new oversight 
process. The industry agrees with GAO. There is a need for employee 
training and long-range strategic planning by the agency to ensure that 
NRC employees understand the new oversight process and that adequate 
resources are available for initial implementation at all nuclear power 
plants.
     NEI has recommended, in previous testimony before this 
subcommittee, that the NRC adopt a comprehensive five-year strategic 
plan. Given the release of the NRC's draft strategic plan just last 
week, the industry has had time for only a preliminary review of the 
plan. However, the industry believes that the NRC's strategic plan as 
drafted is not sufficient to guide the agency during this period of 
significant change. The NRC's strategic plan should recognize improved 
industry safety and performance and account for new demands on the 
regulatory process, such as license transfer and renewal procedures. 
The agency should optimize its resources, including an examination of 
its organizational structure, to allocate resources in a manner that 
ensure adequate staff to set the foundation for broad regulatory 
reform.
     The NRC should also incorporate sound budgeting practices 
into its strategic planning. Under the current user fee system, most of 
the fees are collected as a generic assessment equally levied against 
all licensees. This creates, in effect, a ``miscellaneous'' category to 
describe nearly 80 percent of its budget. This system also fails to 
provide Congress and the industry with the budget information necessary 
for a thorough and complete evaluation of its effectiveness and 
efficiency.
    The industry strongly encourages this subcommittee and the Congress 
to continue its oversight of this agency as it moves to a safety-
focused regulatory oversight program. NEI appreciates this opportunity 
to submit testimony, and recommends that this subcommittee holds a 
hearing early in the 107th Congress to examine the industrywide 
implementation of the new regulatory oversight process.
                               __________

STATEMENT OF MS. GARY L. JONES, ASSOCIATE DIRECTOR, ENERGY, RESOURCES, 
  AND SCIENCE ISSUES, RESOURCES, COMMUNITY, AND ECONOMIC DEVELOPMENT 
                  DIVISION, GENERAL ACCOUNTING OFFICE

    Mr. Chairman and members of the subcommittee: We are pleased to be 
here today to discuss the Nuclear Regulatory Commission's (NRC) move 
from its regulatory approach which was largely developed without the 
benefit of quantitative estimates of risk, to an approach--termed risk-
informed regulation--that considers relative risk in conjunction with 
engineering analyses and operating experience.\1\ Our testimony 
addresses (1) the views of NRC staff (based on our survey that was 
reported to you in January) on the quality of the work NRC performs,\2\ 
NRC's management of and the staff's involvement in changes occurring in 
the agency, and the move to a risk-informed regulatory approach; and 
(2) the status of NRC's efforts to develop a comprehensive strategy to 
implement a risk-informed regulatory approach.
---------------------------------------------------------------------------
    \1\ NRC differentiates between ``risk-informed'' and ``risk-based'' 
regulation, noting that the latter approach relies solely on the 
numerical results of risk assessments. NRC does not endorse a risk-
based approach.
    \2\ To obtain a diversity of views, we surveyed 1,581 NRC staff; 
1,076, or 68 percent, responded. See: Nuclear Regulation: NRC Staff 
Have Not Fully Accepted Planned Changes (GAO/RCED-00-29, Jan. 19, 
2000).
---------------------------------------------------------------------------
    In addition, you asked us to provide information based on past 
reports on the disagreement between NRC and the Environmental 
Protection Agency (EPA) on radiation standards.\3\ EPA is responsible 
for setting radiation limits outside the boundaries of nuclear 
facilities and for establishing residual radiation standards for the 
amount of radioactivity that can safely remain at a nuclear power plant 
site and still not pose a threat to public health and safety and the 
environment. In addition, the Energy Policy Act of 1992 directed EPA to 
develop environmental protection standards for the Department of 
Energy's (DOE) proposed high-level nuclear waste repository at Yucca 
Mountain, Nevada.
---------------------------------------------------------------------------
    \3\ Nuclear Regulation: Better Oversight Needed to Ensure 
Accumulation of Funds to Decommission Nuclear Power Plants (GAO/RCED-
99-75, May 3, 1999) and Nuclear Health and Safety Consensus on 
Acceptable Radiation Risk to the Public Is Lacking (GAO/RCED-94-190, 
Sept. 19, 1994).
---------------------------------------------------------------------------
    In summary, we found the following:
     Although our survey results showed that the vast majority 
of NRC staff feel their work contributes to protecting public health 
and safety, their views on NRC's efforts to change its regulatory 
approach were less favorable. For example, less than one-quarter of the 
staff believe that senior management is receptive to suggestions for 
change made by the staff. While almost half of the staff who responded 
to the survey said that the change to risk-informed regulation has had 
a positive effect on nuclear safety, only about one-fourth believe that 
NRC staff have ``bought in to'' the process. Relatedly, many staff 
expressed concern about a central element of risk-
informed regulation--the new risk-informed process for assessing the 
performance of nuclear power plants. Sixty percent of the staff who 
responded to questions about this oversight process believe that it 
will reduce the margins of safety at nuclear power plants. Our findings 
are similar to the results of an NRC survey, which found that 70 
percent of its staff who expressed an opinion do not believe that the 
new oversight process will allow for the identification of declining 
safety performance. Based on the results of the NRC survey and input 
from stakeholders, NRC has made some changes to the new oversight 
process in anticipation of its implementation in April 2000.
     NRC staff expect to provide the Commission with a draft 
comprehensive strategy, which NRC is calling an Implementation Plan, 
for moving to a risk-informed regulatory approach in March 2000. NRC 
will then seek public comments on the plan, and it may then take 
another year to put it in place. The outline of the draft 
implementation plan that was provided to the Commission in January 2000 
touched on the elements we recommended be included in a strategy for 
moving to a risk-informed regulatory approach in our March 1999 report.
     Disagreement between NRC and EPA over appropriate 
standards for regulating radiation levels at nuclear facilities could 
impact the costs to decommission nuclear power plants (dismantle them 
and dispose of their wastes) and develop a proposed repository for the 
plants' high-level waste at Yucca Mountain, Nevada. Although EPA has 
authority to establish a standard for residual radiation at nuclear 
power plants that have been decommissioned, it has not done so. 
Utilities are using a standard developed by NRC that EPA believes is 
not restrictive enough. Utilities are concerned that they may 
ultimately have to use a more restrictive EPA standard, which would 
increase their decommissioning costs. EPA has proposed a radiation 
standard to protect public health and safety at the proposed nuclear 
waste repository, as it was required to do in 1992. However, NRC, the 
Nuclear Energy Institute (NEI), a board of the National Academy of 
Sciences, and others have raised concerns.\4\ The Academy, for example, 
stated that the proposed standard may have a negligible impact on the 
protection of the public and could complicate the licensing of the 
facility.
---------------------------------------------------------------------------
    \4\ NEI includes members from all utilities licensed to operate 
commercial nuclear plants in the United States, as well as nuclear 
plant designers, major architectural/engineering firms, fuel 
fabrication facilities, materials licensees, and other organizations 
and individuals involved in the nuclear energy industry. NEI 
establishes unified policy for the nuclear industry on such matters as 
generic operational and technical issues.
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                               BACKGROUND

    NRC has been incorporating risk into the regulatory process for 
many years and, in August 1995, it issued a policy statement that 
advocated certain changes in the development and implementation of its 
regulations for commercial nuclear plants through a risk-informed 
approach. Under such an approach, NRC and the utilities would give more 
emphasis to those structures, systems, and components deemed more 
significant to safety. To respond to past criticisms about the lack of 
a consistent, objective, and transparent method to assess the overall 
performance of nuclear power plants, in January 1999, NRC proposed a 
new risk-informed oversight process. Within the new oversight process, 
NRC developed a new inspection program, developed performance 
indicators, and established clearly defined, objective thresholds for 
making decisions about a plant's performance. NRC tested the new 
oversight process at 13 plants between May and November 1999 and 
expects to implement it industrywide in April 2000.
    NRC has also been examining various approaches to consider risk for 
other regulatory activities. This includes overseeing facilities that 
produce fuel for nuclear power plants; entities that use nuclear 
materials in medical, academic, and industrial applications (materials 
licensees); and DOE's proposed high-level nuclear waste repository in 
Yucca Mountain, Nevada.

 STAFF SAY THEY ARE COMMITTED TO SAFETY BUT ARE CONCERNED ABOUT THEIR 
              LIMITED INVOLVEMENT IN CHANGES AT THE AGENCY

    Although our survey showed that the vast majority of NRC staff feel 
their work contributes to protecting public health and safety, their 
views on NRC's efforts to change its regulatory approach were less 
favorable. In particular, the staff had concerns about management and 
their involvement in change, the move to risk-informed regulation, and 
the new nuclear power plant oversight process.
Staff Are Concerned About Management of and Their Involvement in Change
    Our survey results suggest that senior management may not be 
providing the leadership necessary to facilitate change and that staff 
believe they have not been involved in many of NRC's recent 
initiatives.\5\ As might be expected, the survey results for some 
questions showed statistically significant differences between the 
views of management and staff with management's views being 
significantly more positive.\6\ For example, 46 percent of the NRC 
managers who responded agree or strongly agree that senior management 
is receptive to suggestions for change, compared with 23 percent of the 
staff who agree or strongly agree. Similarly, 34 percent of the NRC 
managers agree or strongly agree that senior management solicits ideas 
and opinions from staff before making changes that affect their work 
compared with 17 percent of the staff.
---------------------------------------------------------------------------
    \5\ For the purpose of the survey, senior management referred to 
manages at the Deputy Office Director/Deputy Regional Administrator 
level and above, including the Chairman, Commissioners, and Executive 
Council, and mid-level management refers to section chiefs, team 
leaders, assistant branch chiefs, branch chiefs, and deputy and 
division directors.
    \6\ The percentage of management agreeing with the statement is 
significantly different from the percentage of staff at p 99E-09, Dec. 23, 1999).
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NRC Staff Have Mixed Views on Risk-Informed Regulation
    Our survey results also showed that staff had mixed views about 
NRC's move to risk-informed regulation. Although 48 percent believe 
that risk-informed regulation has had a positive effect on nuclear 
safety, about 20 percent believe it has had a mostly negative effect. 
In addition, only 27 percent of the staff agree or strongly agree that 
the new risk-informed approach has been accepted by NRC staff. NRC 
managers said that these data are not surprising. They said that staff 
will be skeptical about moving to a risk-informed approach until they 
see how the approach is implemented.
NRC Staff Are Skeptical About the New Oversight Process
    Of the NRC staff who answered questions about a central aspect of 
risk-informed regulation--the development and implementation of the 
process for overseeing safety at nuclear power plants--\8\ our survey 
results show that:
---------------------------------------------------------------------------
    \8\ About 33 percent of the NRC staff who responded to the survey 
neither agreed nor disagreed, did not know or had no basis to judge, or 
provided no answer to the questions.
---------------------------------------------------------------------------
     75 percent agree or strongly agree that utilities and 
industry groups had too much input/influence in developing the process,
     60 percent agree or strongly agree that the process will 
reduce safety margins, and
     86 percent agree or strongly agree that as time passes, 
subjectivity will creep into the process.
    According to NRC managers, the agency has recognized these 
potential problems, has monitored them during the pilot project at 13 
plants, and will consider them as it develops the final oversight 
process. NRC also said that the survey results reflect the staff's 
knowledge and views at a particular point in time; but as the new 
process continues to develop and more staff receive training, the 
agency expects an increase in the staff's level of knowledge and 
confidence about the new oversight process.
    We agree with NRC that our survey results reflect the staff's 
knowledge and views at a particular point in time. More recently, 
however, NRC surveyed 94 regional office staff, including inspectors 
and others who participated in the new oversight process pilot project, 
which ended in November 1999. NRC found that less than half agree or 
strongly agree that the new oversight process provides adequate 
assurance that plants are being operated safely and about half agree or 
strongly agree that the new inspection program will appropriately 
identify risk-significant issues. NRC also found that:
     36 percent agree or strongly agree that the new process 
provides sufficient regulatory attention to licensees with performance 
problems,
     31 percent agree or strongly agree that the new inspection 
report format adequately communicates relevant information to the 
licensee and public, and
     19 percent agree or strongly agree that the new process 
allows for the identification of declining performance before safety 
margins are significantly reduced.
    In addition to the issues NRC identified through the pilot project, 
NEI, utility and state officials, and representatives of public 
interest groups identified 27 issues they believed should be resolved 
before NRC implements the new process in April 2000. The issues, 
identified during a recent workshop on the oversight process, included 
the need for guidance for NRC staff and the industry on the enforcement 
actions that NRC would take when utilities report inaccurate plant 
performance data and inspection issues that cut across all aspects of 
plant operations (like human performance). The need for performance 
indicators for the security of nuclear power plants were also 
identified. The workshop participants identified another 22 issues that 
NRC should resolve during or after the first year of implementing the 
new process.
    Despite these unresolved issues, NRC staff, NEI officials, and 
other stakeholders, such as the Union of Concerned Scientists, believe 
that the new oversight process provides a more objective and clear 
approach that is fundamentally more sound and will produce better 
overall results than NRC's prior process to assess overall plant 
performance. However, dig the pilot project at 13 plants, NRC found 
that about 99 percent--or nearly all--of the performance indicators 
were acceptable and only three inspection findings were not. Two 
members of NRC's Advisory Committee on Reactor Safeguards, reacting to 
this information, believe that the performance indicators are not 
sensitive enough to identify degrading plant performance.\9\ In 
addition, 70 percent of the NRC staff who provided opinions to an 
agency survey indicated that the new process will not allow for the 
identification of declining safety performance. When taken together, 
the question arises: How good is a process that tells NRC, the utility, 
and the public that overall plant performance is acceptable but cannot 
tell NRC when performance starts to decline? This overall question was 
raised by some members of the Advisory Committee on Reactor Safeguards 
at a recent meeting with NRC staff. In responding to the Advisory 
Committee, NRC staff said that the oversight process is not ``set in 
stone''; and will continue to evolve during its initial implementation. 
NRC staff expect to evaluate the process by June 2001 and provide the 
Commission with recommendations to improve it.
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    \9\ The Advisory Committee on Reactor Safeguards is a statutory 
committee established to advise the Commission on safety aspects of 
proposed and existing nuclear facilities, as well as to perform other 
duties as the Commission may request.
---------------------------------------------------------------------------
NRC Is Developing a Strategy to Implement a Risk-Informed Regulatory 
        Approach
    NRC agreed with the recommendation in our March 1999 report on 
risk-informed regulation that it should develop a comprehensive 
strategy to implement a risk-
informed regulatory approach. The staff expect to have a draft strategy 
for the Commission's consideration by March 10, 2000. However, NRC will 
not finalize the strategy until it obtains and addresses public 
comments on it, which could take another year. NRC staff did provide 
the Commission with a memorandum on January 13, 2000, describing their 
proposal for the development of a comprehensive risk-
informed strategy. The outline mentions many of the issues that we 
raised in previous reports and testimony--it discusses the need for 
goals, objectives, performance measures, timelines, and training for 
staff. NRC staff and other stakeholders, including NEI and the Union of 
Concerned Scientists, will meet with the Commission at the end of this 
month to provide their views on the draft strategy.
NRC and EPA Disagree on Radiation Standards
    NRC and EPA disagree on the level of residual radiation that can 
safely remain at a nuclear power plant site after utilities complete 
their decommissioning. EPA has authority for establishing radiation 
standards for all aspects of decommissioning, including acceptable 
levels of residual radiation. To date, EPA has not issued such 
standards. In the absence of EPA's standards, in 1997, NRC issued 
standards that utilities must meet to decommission nuclear plant sites 
and terminate their NRC licenses.
    We previously reported that EPA does not agree with NRC's residual 
radiation standard.\10\ NRC's standard sets a dose limit of no more 
than 25 millirem per year from all sources, including groundwater.\11\ 
To put this standard in perspective, the average level of natural 
background radiation in the United States is about 300 millirem per 
year. In fact, the disagreement between the two agencies has been 
characterized by both its length and its acrimony. EPA started to 
develop residual radiation standards in 1984 but has not yet finalized 
them. Nevertheless, EPA's position is that NRC's licensees should be 
required to decontaminate nuclear plant sites to a level of 15 
millirems of residual radioactivity per year and to clean up 
groundwater to the same limit as drinking water standards. EPA's 
Administrator has stated that the agency may apply the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 to 
sites that have been or are being decommissioned if NRC and EPA do not 
reach an agreement on the applicable standards.
---------------------------------------------------------------------------
    \10\ Nuclear Regulation: Better Oversight Needed to Ensure 
Accumulation of Funds to Decommission Nuclear Power Plants (GAO/RCE-99-
75, May 3, 1999).
    \11\ Rem is a unit of measurement of the effect of radiation doses 
to human beings. A millirem is one thousandth of a rem.
---------------------------------------------------------------------------
    Currently, NRC's licensees are using NRC's regulations and related 
guidance to plan for or to decommission their nuclear power plants and 
related facilities. However, if NRC's licensees are ultimately required 
to comply with the stricter EPA standards, they may have to perform 
additional cleanup activities and incur additional costs. Neither NRC 
staff nor EPA officials could estimate the amount of additional cost, 
but both said it could be very high. To ensure that NRC's licensees do 
not face dual regulation, in 1999, the House Appropriations Committee 
strongly encouraged EPA and NRC to adopt a memorandum of understanding, 
which is being developed, to clarify EPA's involvement at NRC sites and 
to report to the Committees on Appropriations by May 2000 on their 
progress. Although the nuclear industry was encouraged by the directive 
to resolve the stalemate through a memorandum of understanding, NEI has 
said that the industry is uncertain given EPA's history whether the 
memorandum will be completed and/or resolve the problem. NEI also 
stated that the Congress may need to intervene to resolve the conflict 
between the two agencies.
    NRC and EPA also disagree on the radiation standards that would 
apply to DOE's high-level waste repository at Yucca Mountain, Nevada. 
The Nuclear Waste Policy Act of 1982 made NRC responsible for licensing 
the construction and operation of DOE's repository for high-level 
radioactive waste on the basis of general environmental standards to be 
issued by EPA. The Nuclear Waste Policy Amendments Act of 1987 directed 
DOE to investigate a site at Yucca Mountain, Nevada; and the Energy 
Policy Act of 1992 directed EPA to develop a specific health standard 
for the Yucca Mountain site. In August 1999, EPA issued a proposed rule 
in the Federal Register on the environmental radiation protection 
standards for Yucca Mountain. In the standards, EPA proposes that DOE 
not only limit exposure to an individual from radioactive material to 
15 millirems per year from all sources but also protect groundwater to 
drinking water standards. In commenting on EPA's proposal, NRC noted 
that EPA has not demonstrated a need for a separate groundwater limit 
or that the 15 millirems limit was necessary to protect public health 
and safety and the environment.
    NRC is not alone in its objection to EPA's proposed requirement for 
a separate groundwater standard--NEI, the National Academy of Sciences, 
and others have also raised concerns. For example, NEI noted that far 
from enhancing public health and safety, a separate EPA groundwater 
standard could result in a repository design that is actually less 
protective of public health and safety. NEI noted that meeting a 
separate groundwater standard would require smaller waste containers in 
more tunnels, spread over a larger area which would require more 
ventilation systems. NEI said that a larger, more open repository would 
release more naturally occurring radon during excavation and the 
repository's operations, thereby increasing the total radiation dose. 
Likewise, the National Academy of Sciences' Board of Radioactive Waste 
Management commented that the separate groundwater standard appears to 
duplicate the protection provided by the 15-millirem-per-year standard. 
The Academy also said that a separate groundwater limit may greatly 
complicate the licensing process and have a negligible impact on the 
protection of the public. It further noted that the Academy does not 
believe that a scientific basis exists for establishing a separate 
limit.
    Mr. Chairman and members of the subcommittee, this concludes our 
statement. We would be pleased to respond to any questions you may 
have.
                               __________

   STATEMENT OF DAVID E. ADELMAN, PROJECT ATTORNEY, NUCLEAR PROGRAM, 
                NATURAL RESOURCES DEFENSE COUNCIL, INC.

    Good morning Mr. Chairman and members of the subcommittee. My name 
is David Adelman and I am project attorney with the Natural Resources 
Defense Council (``NRDC''). Thank you for allowing me to address the 
issues related to the Nuclear Regulatory Commission's proposed rule on 
the unrestricted release and recycling of radioactively contaminated 
materials.
    NRDC opposes the Nuclear Regulatory Commission's (``NRC'') proposed 
rule that would permit the unrestricted release of radioactively 
contaminated materials for use in such things as home appliances, cars, 
and other consumer products, and that would expose unprotected workers 
processing contaminated materials at scrap mills to potentially 
significant levels of radiation. NRDC has fundamental concerns about 
whether such standards can be implemented safely particularly in light 
of the revelations surrounding the Department of Energy's (``DOE'') 
Paducah, Kentucky, facility, improper releases of radioactively 
contaminated materials from DOE's Santa Susana facility in California, 
and continuing environmental and radiation safety management problems 
at both private and government facilities generally. Further, NRDC has 
serious questions about the uncertainties in the estimates of the risks 
of recycling radioactively contaminated materials to workers and the 
public. For these reasons, NRDC opposes the NRC's proposed rule and the 
NRC's current practice of allowing unrestricted releases on a case-by-
case basis until these uncertainties are resolved and the NRC has 
obtained general public acceptance that radioactively contaminated 
materials can be recycled safely.
    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 over 400,000 individuals. 
As you may be aware, 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 the DOE 
and commercial nuclear facilities licensed by the NRC and their 
predecessor agencies.

    I. THE NRC RULE REPRESENTS A DRAMATIC CHANGE IN POLICY TOWARDS 
          DEREGULATION OF RADIOACTIVELY CONTAMINATED MATERIALS

    In March 1965, the NRC established ``Criteria for the approval of 
products intended for use by the general public.'' 30 Fed. Reg. 3462-
63. The NRC notice sets forth its policy for products containing 
radioactive substances intended for use by the general public without 
any regulatory controls on the consumer-user. Approval depended upon a 
product being unlikely to expose individuals to more than a few 
hundredths of the NRC dose limits and the radioactive components having 
utility. The NRC noted specifically that it ``considers that the use of 
radioactive material in toys, novelties, and adornments may be of 
marginal benefit. . . . Applications for approval of ` off-the-shelf ' 
items that are subject to mishandling especially by children will be 
approved only if they are found to combine an unusual degree of utility 
and safety.'' 30 Fed. Reg. 3462 (March 16, 1965). For many years, NRC 
has acknowledged the complexity and risks of permitting consumer 
products to contain radioactive substances.
    In 1986 and 1990, the NRC proposed policies on radiation levels 
that would be considered ``below regulatory concern'' (``BRC''). The 
1990 policy would have permitted the deregulation of certain 
radioactive wastes, materials, and emissions. In the early 1990's the 
public, states, and Congress rejected the NRC's BRC effort to 
deregulate contaminated scrap metals and other materials for 
unrestricted recycling. The NRC's BRC policy was formally revoked by 
Congress in the Energy Policy Act of 1992, and the NRC rescinded both 
policies soon after. In part because of the NRC's deregulation efforts, 
at least sixteen states have passed regulations or laws that are 
stricter than the federally proposed allowable releases, most with the 
intent to continue regulatory control if the federal government allows 
deregulation. The present rulemaking represents yet another attempt by 
NRC to modify its regulation of regulated materials by establishing 
broad-based deregulation standards for radioactively contaminated 
materials.
    Until recently, DOE has also had a policy that generally precluded 
the release of radioactively contaminated materials for unrestricted 
and unregulated sale in U.S. markets. It was not until former Assistant 
Secretary of Environmental Management Al Alm issued a policy statement 
in September 1996 promoting, on a provisional basis, recycling of 
radioactively contaminated scrap steel that DOE formally altered its 
long-standing policy disfavoring unrestricted release of contaminated 
materials although, this policy originally focused narrowly on 
restricted end uses of recycled steel at DOE facilities. Further, DOE's 
policy is being implemented on a conditional basis while DOE evaluates 
the safety and economics of recycling these materials. However, in 
response to strong public- and private-sector opposition, Secretary 
Bill Richardson recently blocked further releases of ``volumetrically'' 
contaminated metal, but not surface-contaminated metals, from DOE 
facilities until the NRC resolves whether to proceed with a free-
release standard.
    Accordingly, although recycling of radioactively contaminated 
materials has been considered by both the NRC and DOE, and permitted on 
a small scale by both agencies, the proposed NRC rulemaking represents 
a major change in policy towards deregulation, which has consistently 
received substantial public opposition. At the same time, unprecedented 
quantities of radioactively contaminated materials, such as scrap 
metals and concrete, are becoming available from the decommissioning of 
NRC-licensed and DOE facilities. Estimates by the Environmental 
Protection Agency (``EPA'') indicate that more than 1.5 million tons of 
radioactively contaminated metals alone may become available for 
recycling, most of which would come from DOE sites.

     II. THE NRC AND DOE LACK CREDIBILITY WITH THE AMERICAN PUBLIC

    Public concern about radioactively contaminated materials remains 
high because of DOE's history of regulatory mismanagement, the 
technical challenges, and the direct impacts recycling radioactive 
materials will have on consumer products. Moreover, these concerns have 
been significantly heightened since the public learned that the major 
NRC contractor responsible for the technical evaluation of possible 
standards, Science Applications International Corporation (``SAIC''), 
is at the same time working directly for BNFL, Inc. the DOE contractor 
that is undertaking the first large-scale recycling of radioactively 
contaminated metals on regulatory compliance issues. This direct 
conflict of interest has seriously undermined public confidence in the 
objectivity of the NRC's proposed rulemaking and caused the NRC to 
initiate an investigation of SAIC and its other contractors on this and 
other potential conflicts of interest.
    NRC therefore must convince a very wary public that it can 
implement a rule safely, that the underlying science is sound and 
untainted, and that deregulation is not simply a means of externalizing 
the decommissioning costs of NRC-licensed and DOE facilities onto the 
public by recycling radioactive waste into consumer products. 
Otherwise, the NRC risks creating the backlash it experienced in 1992 
when it attempted to deregulate and causing potentially significant 
economic harm to the recycling industry, particularly for scrap metals, 
by burdening it with radioactive wastes that undermine public 
confidence in recycled products. As the National Research Council 
(``Council'') concluded in a 1996 DOE-commissioned report, public 
acceptance and understanding are essential.
    The 1996 Council study concerned the decommissioning of the DOE's 
three gaseous diffusion plants. The report included extended analysis 
of recycling options for the large quantities of scrap metal that would 
be generated in the decommissioning process. The Council's report 
included the following recommendations and findings:
     If recycling of scrap metal were to proceed, promulgation 
of credible national standards for the unrestricted release of 
radioactively contaminated materials is a necessary prerequisite.
     It is essential that a meaningful stakeholder and public 
involvement process be implemented before recycling of any 
radioactively contaminated materials occurs.
     Recycling of contaminated materials could cause 
significant health risks to workers and the public.
     Great care must be taken to ensure that releases of 
contaminated steel does not increase residual radioactivity in the 
nation's steel supply to an unacceptable level, particularly because 
increases in contaminants have been observed in the past.
    Despite the absence of accepted standards and any meaningful public 
involvement, the DOE is proceeding with the first large-scale recycling 
of contaminated scrap metal at the Oak Ridge K-25 gaseous diffusion 
plant. In a legal challenge to the DOE's failure to complete an 
environmental impact statement for the project, federal district court 
judge Gladys Kessler found:
     that the potential for environmental harm from the Oak 
Ridge project is great, especially given the unprecedented amount of 
hazardous materials that would be recycled;
     that DOE should have prepared an environmental impact 
statement for the Oak Ridge radioactive metals recycling project; and
     that it was ``startling and worrisome'' that, from an 
early point on, there was no opportunity for public scrutiny or input 
on a project of such grave importance.
In addition to the problems identified by Judge Kessler, it appears 
that under the NRC's regulations the project is proceeding without a 
valid license. Tennessee lacks the regulatory authority to grant a 
licensee where radioactively contaminated materials are recycled for 
use in consumer products. See 10 C.F.R. Parts 30 and 40 and 10 C.F.R. 
150.15(a)(6).
    The NRC nonetheless supports the Oak Ridge project despite these 
deficiencies and the present rulemaking it is considering. Moreover, 
the Oak Ridge project is qualitatively different from prior, more-
limited releases because of its scale approximately 100,000 tons of 
scrap metal will be recycled and the types of contaminated materials. 
The DOE's decision to proceed with the Oak Ridge project, and the NRC's 
support of it, have further compromised the credibility of the NRC's 
public participation process. With the Oak Ridge project proceeding 
under NRC's blessing, public stakeholders question whether a standard 
is predetermined and whether the proposed NRC rulemaking will fully and 
fairly consider all of the alternatives, including halting all releases 
of radioactively contaminated materials. NRDC firmly believes, 
consistent with the Council's report, that NRC should cease licensing 
unrestricted releases of radioactively contaminated materials until it 
resolves these issues and that DOE should also halt all unrestricted 
releases of radioactive materials from its facilities.

   III. THE NRC'S PROPOSED RULEMAKING RAISES SERIOUS IMPLEMENTATION 
                                PROBLEMS

1. The Total Quantity of Radioactively Contaminated Materials to be 
        Released for Use in Commercial Products is Unknown
    According to Environmental Protection Agency (``EPA'') estimates, 
NRC-licensed facilities contain about 650,000 metric tonnes of scrap 
metal that could be recycled (~80% carbon steel; ~20% stainless steel); 
however, EPA's upper bound on this estimate is about twice this value. 
EPA estimates that DOE facilities currently store bout 171,000 metric 
tonnes of scrap metal; although, the upper bound on this estimate is 
about twice this value. Decommissioning of DOE facilities according to 
EPA will generate approximately another 925,000 tonnes (~85% carbon 
steel; ~15% equally divided between copper, aluminum, and stainless 
steel), but the actual quantity could be several times higher than this 
value. There are no estimates of the total quantities of other 
radioactive materials (e.g., concrete, soil, industrial wastes) that 
could be deregulated.
    Because of these uncertainties, it is unclear how the NRC can 
reasonably evaluate the human health impacts of its standard. It is 
essential that the NRC clearly explain how it plans to estimate, in a 
scientifically sound manner, the total quantity of radioactively 
contaminated materials to which the public could be exposed, 
particularly because some radioactive contaminants remain hazardous for 
many thousands of years. Indeed, several radionuclides such as 
technetium and uranium have extremely long half-lives, which adds 
another layer of complexity to NRC's assessment of the aggregate amount 
of radioactively contaminated materials that will be in commerce at any 
given time.
    The NRC claims that the risks from contaminated metals are limited 
because contaminated scrap metal will make up less than one percent of 
the scrap metal being processed in any given year, which would reduce 
their potential risks. However, this estimate does not take into 
account scrap mills, particularly mini-mills, that may receive a 
disproportionate amount of radioactively contaminated metal. At these 
facilities, recycled metal could be released without being mixed with 
any clean metal. Under these circumstances, the NRC's claims of 
significant dilution are merely hypothetical. As in the prior EPA 
study, the risks from contaminated materials must be evaluated assuming 
no dilution.
    Similarly, because of public concern about aggregate effects of 
radiation from contaminated materials, it is essential that the NRC 
provide information on and estimates of exposures from multiple 
pathways--under its current analysis the NRC limits its evaluation to 
certain exposure scenarios without providing adequate information on 
the broader context of potential exposures. Only with this information 
will the public be able to assess the relative contributions from 
different sources and pathways, e.g., the impact of technetium-99 
contamination in consumer products relative to that of cobalt-60 or 
what pathways are most important for each radionuclide. This 
information should be tabulated and presented in several examples 
illustrating the effects of different radionuclides in specific 
circumstances.
    Finally, the NRC limits its analysis to the average member of each 
critical group, i.e., the group of individuals expected to receive the 
greatest exposure to each radionuclide. In EPA's earlier study, its 
risk analyses were based on the ``reasonably maximally exposed 
individual'' (``RMEI'') for standard setting, which does not entail the 
same kind of averaging employed in the NRC analysis. The NRC should use 
the more conservative RMEI in its risk assessments; although, a 
comparison of the normalized dose factors calculated using average 
critical group member with those derived using the RMEI would also be 
informative. And the NRC should not limit itself to assessing excess 
cancer deaths; in particular, it should evaluate the unique risks posed 
to children and teratogenic effects.

2. Surveying and Monitoring for Radioactive Contamination is both 
        Technically Challenging and Costly
    Survey measurements for radioactive contamination are difficult and 
challenging where large, complicated pieces of equipment, such as that 
found at DOE and NRC facilities, are involved. Problems that can 
undermine effective surveying include the following:
     Complex geometries with difficult to reach surfaces are 
challenging to measure accurately, and workers will tend to avoid these 
measurement areas.
     Large errors can be introduced into measurements of 
volumetric contamination if the contaminant concentration is not 
uniform or if the geometry of the contaminated piece is complicated.
     Even where measurements are straightforward, the accuracy 
of the measurements is limited by the presence of unavoidable 
background radiation.
    Typical measurement uncertainties, even for the most favorable 
geometries, are likely to be several percent; more complex geometries 
will result in greater measurement uncertainty. In its study, EPA 
acknowledges that current detection instruments may not be sensitive 
enough to detect contamination reliably under a 1 mrem/y standard, 
which is a ``reasonable'' level often quoted by regulators. For example 
Cobalt-60, a major contaminant in materials at NRC-licensed facilities 
and an important radionuclide in risk assessments, could be difficult 
to detect under a 1 mrem/y standard. If a standard is set, the NRC must 
be able to demonstrate that the available detection equipment can 
reliably survey materials to satisfy its standard. Conversely, if NRC 
identifies an acceptable standard but adequate detection equipment is 
not available for certain radionuclides, unrestricted release of 
materials contaminated with those radionuclides should be prohibited.
    These technical constraints raise several basic issues:
     It is unclear whether the detection equipment available 
can protect the public against improper releases of radioactively 
contaminated materials if a stringent standard were set.
     No data have been provided estimating the rate of 
potential false negatives (measurements that incorrectly find that a 
piece of equipment is not contaminated).
     NRC has not conducted any assessments of the potential 
impacts of improper releases on workers or the public.
     NRC has not demonstrated that surveying can be conducted 
adequately for the large quantities of scrap metal available for 
recycling at NRC-licensed and DOE facilities.

3. Risks Posed by the Different Radiological Contaminants Could Impede 
        Reliable Implementation of a General Standard
    Several factors influence the threat posed by a given radioactive 
element:
    (1) whether the radionuclide remains in the recycled material or 
partitions into a byproduct of the recycling process (e.g., for metals 
it can partition into the metal product, slag, or baghouse dust);
    (2) the type of radiation the radionuclide emits (i.e., alpha, 
beta, gamma);
    (3) the residence time of the radionuclide in an individual once it 
is ingested; and
    (4) the length of the radionuclide's half-life.
For example, some radionuclides like uranium-238, plutonium-239, 
neptunium-237, and technetium-99 are extremely long lived, some have 
long residence times like plutonium and neptunium, and some partition 
almost exclusively into the recycled metal, such as technetium and 
cobalt.
    These different characteristics mean that radionuclides present 
substantially different risks to workers and the public and present 
different challenges from a regulatory perspective. For example, 
radionuclides that partition exclusively into the slag that is 
generated during recycling are less likely to pose a significant threat 
to the public through commercial products, but pose potentially 
significant risks to workers. Establishing an across-the-board rule 
under these circumstances raises the potential for substantial 
regulatory problems and could undermine safe implementation of a 
standard. Factors that differentiate radionuclides from a standard-
setting perspective include uncertainties in estimates underlying risk 
assessments, types of risks, likelihood of improper releases 
(violations), and level of public concern. For example, more uncertain 
risks should lead to more conservative standards or rejection of a 
standard altogether. Similarly, the degree to which future uses are 
foreseeable should factor into this analysis.
    For radionuclides that partition into the recycled material, NRC 
must be particularly vigilant in ascertaining the potential uses and 
risks posed by the residual radioactive contaminants. Where these risks 
cannot be reliably calculated, the scrap materials should not be 
recycled for unrestricted use. The NRC bears the burden of 
demonstrating the safety of its rule under real-world conditions.
    In addition, where radionuclides partition into recycling byproduct 
materials, such as metal slag produced during smelting, the NRC must 
evaluate requiring proper disposal of such materials at regulated 
facilities under ``as low as reasonably achievable'' (``ALARA''). This 
applies particularly to metal slag--which is sold for, among other 
things, soil conditioning and ice control--because it is of low 
economic value and certain long-lived radionuclides concentrate in it 
during the melting process.

4. The Economics of Radioactive Materials Recycling Will Undermine Safe 
        Implementation of a Standard
    Except in the case of nickel, and to a lesser extent copper, the 
primary economic gain from recycling scrap metal and other 
radioactively contaminated materials derives from avoiding disposal 
costs. This means that from an economic perspective there is little 
difference between limiting standards to restricted releases, such use 
solely within DOE or NRC-licensed facilities, versus permitting 
unrestricted recycling of such materials.
    However, the savings from avoiding disposal are often more than 
offset by the costs of cleaning the materials to meet unrestricted 
release standards and, to a lesser extent, costs from surveying the 
materials for radioactive contaminants. Unless there are effective 
regulatory oversight mechanisms and significant penalties for 
regulatory violations, companies engaged in recycling will (1) maximize 
the amount of material they release without cleaning it; and (2) seek 
to limit survey costs. The economics of the radioactive recycling 
therefore strongly favor lax implementation of surveying requirements 
and compliance with release standards. Given the amount of material 
potentially available, the economic incentives, the limits of survey 
equipment, and the poor track record of the nuclear industry in 
managing radioactive materials, issuing an NRC standard could result in 
substantial quantities of material being released in violation of 
whatever standard might be set.
    As discussed above, the NRC must evaluate the potential impacts 
from such improper releases and ensure that there are regulatory 
mechanisms to protect the public against them. It is the practical 
challenges of implementing a standard that represent the greatest 
source of public concern, even if a safe standard, in principle, were 
identified. Further, where the risks--particularly to workers--from 
improper releases are particularly great, the NRC should limit the 
scope of the permissible types of releases to foreclose the possibility 
of serious or chronic risks to works and the public.
    The NRC is required to ensure that all recycling is in compliance 
with ALARA and to conduct an analysis in conformance with the ALARA 
principle as part of any rulemaking. At minimum, the NRC must be 
particularly diligent in conducting an ALARA analysis in circumstances 
where the economics either make disposal marginally more expensive than 
unrestricted release or where restricted release is an option. It is 
therefore essential that the NRC include analyses of a variety of 
circumstances under which recycling could occur to assess fully how 
ALARA applies. Any such ALARA analysis should not be limited to a 
global assessment, but include focused analyses of particular releases 
under specific conditions.

IV. PUBLIC CONCERN AND THE LEGACY OF THE NUCLEAR INDUSTRY'S MANAGEMENT 
                        OF RADIOACTIVE MATERIALS

    In addition to the problems raised by the lack of public notice and 
comment in the Oak Ridge project and the direct conflicts of interest 
of the NRC's major contractor, the present rulemaking is being 
developed in the context of decades of mismanagement of radioactive 
wastes at DOE facilities. DOE mismanagement has caused incalculable 
environmental harm, threatened the health, and in some cases lives, of 
many DOE workers and U.S. citizens, and created an environmental 
debacle that will cost more than $250 billion to remedy. Unfortunately, 
these problems are not merely historical artifacts:
     In 1994, the Conference of Radiation Control Program 
Directors (``CRCPD'') found that ``[r]adioactive materials has been 
tracked offsite, into homes, businesses, and elsewhere. . . . States 
have surveyed people, homes, businesses, rental cars, and trucks. 
Significant contamination events continue to occur at the DOE 
facilities due to lack of adequate health physics for all its 
operations.''
     In 1999, the regulatory deficiencies identified by the 
CRCPD were found at DOE's Paducah, Kentucky, plant, as well as evidence 
that DOE contractors had illegally disposed of radioactive materials in 
local sanitary landfills, at random sites in a local state wildlife 
preserve, and through largely unmonitored on-site recycling operations.
     Over the past year the Los Alamos, Livermore, and Savannah 
River sites have been cited by DOE or the Defense Nuclear Safety Board 
for regulatory compliance violations.
     In January 2000 at DOE's Santa Susana Filed Laboratory 
just outside Los Angeles, EPA discovered that DOE had illegally 
released radioactively contaminated wastes for disposal at municipal 
dumps, sold and recycled radioactively contaminated metals, and sent 
contaminated trailers to local schools without even conducting adequate 
monitoring.
     In February 2000, a major radioactivity leak occurred at 
Indian Point nuclear plant in New York.
These continuing problems undermine public confidence in either DOE's 
or NRC's ability to ensure that radioactively contaminated materials 
are managed safely. Moreover, in the wake of the Paducah findings, it 
is disturbing to consider that the Oak Ridge field office, which also 
has authority over the Paducah plant, is responsible for overseeing the 
Oak Ridge radioactive metals recycling project. And it is completely 
unreasonable to assert that the NRC's rulemaking will not cause DOE to 
adopt a similar standard because Secretary Richardson has explicitly 
linked the Energy Department's policy to the NRC's rule.
    The NRC's proposed rulemaking will directly affect the ability of 
DOE and its contractors to release radioactively contaminated 
materials, which DOE has time and again failed to manage safely even in 
fully a regulated environment. In the absence of significant changes 
within DOE or, at the very least, independent regulatory mechanisms to 
ensure that radioactive materials are properly managed by DOE, the 
public has little reason to believe that free releases from DOE 
facilities, which contain the bulk of the inventory, will occur without 
serious adverse impacts. It is therefore essential that the NRC 
consider the practical, technical, and administrative limitations of 
the entities that will be responsible for releasing contaminated 
materials into U.S. markets, and that it factor these constraints into 
its decision on how to proceed.
    In the absence of fundamental changes, the NRC should not proceed 
with this rulemaking, and the NRC and DOE should impose a moratorium on 
the unrestricted recycling and sale of radioactively contaminated 
materials for use in, among other things, consumer products until these 
issues are resolved and public confidence is restored.
                               __________

STATEMENT OF WILLIAM E. KENNEDY, JR., MEMBER OF THE BOARD OF DIRECTORS, 
          PRESIDENTIAL REPRESENTATIVE, HEALTH PHYSICS SOCIETY

                              INTRODUCTION

    Mr. Chairman, Ranking Member Graham, and distinguished members of 
the subcommittee, my name is William E. Kennedy, Jr. I am a member of 
the Board of Directors of the Health Physics Society, an independent 
non-profit scientific organization of professionals who specialize in 
radiation safety. Health Physics Society President, Raymond H. Johnson, 
Jr., has asked that I represent the Society today and wishes to thank 
the committee for providing this opportunity for the Society to serve 
as a resource on this matter. I am pleased to testify today on the 
efforts of the Health Physics Society and the American National 
Standards Institute (ANSI) to develop a formal consensus standard on 
the release of contaminated materials, including metals, and to comment 
on the current U.S. Nuclear Regulatory Commission's (NRC) rulemaking in 
this area. In addition to being on the Board of Directors of the Health 
Physics Society, I am past chairman of an ANSI Writing Group chartered 
to develop a National Consensus Standard on Clearance, or the release 
of materials from radiological controls. The final standard, titled 
``Surface and Volume Radioactivity Standards for Clearance'' ANSI/HPS 
N13.12-1999, was published in January of this year. Since 1986, I have 
also served as a consultant to the International Atomic Energy Agency 
(IAEA), an agency of the United Nations, to develop scientifically 
based release criteria that will be applied to international commerce.
    The Health Physics Society includes over 6,000 members in over 40 
countries that are currently engaged in the practice, science, or 
technology of radiation safety. Society activities include encouraging 
research in radiation science, developing standards, and disseminating 
radiation safety information. As a non-profit scientific organization, 
we are not affiliated with any government, industrial, or private 
entity. The Society is affiliated with the International Radiation 
Protection Association, the American Academy of Health Physics, the 
American Board of Health Physics, the National Academy of Sciences, the 
National Council on Radiation Protection and Measurements, and other 
Scientific and Professional Societies and Institutions. The Society is 
in a unique position to provide informative, scientific positions that 
are independent of both government and industry.

                    HEALTH PHYSICS SOCIETY POSITION

    The Health Physics Society has taken a formal position on the 
release of contaminated materials, including metals, in response to the 
NRC's recent rulemaking process. I have included a copy of this 
position statement at the end of my testimony for your information.
    Based on this position statement it is my testimony to you today 
that the Health Physics Society believes:
     establishing uniform standard criteria for the clearance 
or release of radioactively contaminated materials is a necessary and 
important part of protecting the public and the environment from 
radiation exposure
     regulations for radiation protection should be based on 
consensus standards. including those issued by ANSI and the Health 
Physics Society. the primary radiation protection criterion should be a 
dose standard and should consider all radiation pathways
     the primary dose criterion should be related to screening 
levels that can be used to establish radiation survey programs that 
will ensure the dose level will be met, and
     the ANSI Standard N13.12 should be adopted by U.S. Federal 
Agencies for application to the clearance or release of materials from 
radiological controls.

         CLEARANCE CRITERIA WILL INCREASE RADIATION PROTECTION

    The motive for establishing clearance criteria is not to produce 
unnecessary sources of radiation, but rather to increase protection of 
the public by establishing strict standards and guidelines to ensure 
that harmful sources are controlled, while conserving our natural 
resources.

                         BACKGROUND INFORMATION

    The development and use of release criteria is not unique to 
radiation and radioactive materials. For example, the Food and Drug 
Administration sets acceptable levels of pesticides in foods and the 
U.S. Environmental Protection Agency (EPA) sets contamination levels in 
water and soil in the cleanup of land contaminated with hazardous 
materials.
    Comprehensive, unconditional release criteria for materials, 
equipment, and facilities with low levels of radioactive contamination 
have been needed in the United States for several decades. In addition 
to invoking radiation protection requirements during facility 
operation, release criteria would serve as the basis for deciding what 
materials require disposal as radioactive waste.
    In 1964, the Health Physics Society, under the auspices of ANSI, 
began the technical evaluation of clearance, resulting in early drafts 
of ANSI N13.12. These early drafts of the clearance standard were based 
primarily on detection levels that could be achieved using field 
instruments, with secondary concerns about the potential individual 
doses that may result. An early draft version of ANSI N13.12 was 
consistent with the surface contamination limits that were published by 
the U.S. Atomic Energy Commission in the 1974 version of Regulatory 
Guide 1.86, Termination of Operating Licenses for Nuclear Reactors, 
which is still in use by the NRC today.
    However, the criteria in Regulatory Guide 1.86 are not risk based, 
and are not consistently applied across all situations. The current 
rulemaking under consideration by the NRC addresses updating these 
existing release criteria and the process used to make release 
decisions.

                          ANSI STANDARD N13.12

    The decision to continue efforts to develop an ANSI standard was 
driven by the continuing need for comprehensive release criteria, 
changing national and international guidance, and risk or dose based 
regulations. In 1993, the Health Physics Society Standards Committee, 
in agreement with ANSI Committee N13, established a technical writing 
group to develop the final N13.12 clearance standard. The final 
clearance standard was approved in August 1999 as N13.12, Surface and 
Volume Radioactivity Standards for Clearance and was published in 
January 2000.
    The purpose of ANSI Standard N13.12 is to provide guidance for 
protecting the public and the environment from radiation exposure. It 
does this by specifying a primary radiation dose criterion and derived 
screening levels for the clearance of items that could contain 
radioactive materials. The standard sets a primary radiation dose 
criterion of 1 millirem per year (mrem/y), and provides derived 
screening levels that define the allowable amount of radioactivity per 
unit surface area or per unit mass.

         PERSPECTIVE ON THE ANSI N13.12 PRIMARY DOSE CRITERION

    In our deliberations, the ANSI writing group considered 
international dose criteria for release of materials. These dose 
criteria have been defined by the IAEA and have been adopted by most 
nations. They state that the dose rate to an individual in the 
population expected to receive the highest dose from the released 
material should not exceed 1 mrem/y, i.e., exactly the same criterion 
contained in ANSI N13.12.
    This primary dose criterion is a very low dose rate. Part of the 
reason for selecting a dose rate so small was to ensure that members of 
the public that may be exposed to multiple sources of radiation would 
receive only a small fraction of the doses permitted by Federal 
regulations. The 1 mrem/y dose rate is an even smaller fraction of the 
doses they receive from background sources. For example, Americans 
typically receive about 300 mrem/y from natural background sources, 
including radon in their homes. The dose standard defined in ANSI 
N13.12 is only 0.3% of the dose Americans normally receive from these 
natural background sources. For perspective on the yearly dose in this 
criterion, I would like to point out 1 mrem is about 20% of the dose I 
will have received from cosmic rays at an altitude of about 35,000 feet 
while flying to attend this hearing and returning home.
    This 1 mrem/y dose rate is also considered to be a ``Negligible 
Individual Dose'' by the Congressionally Chartered National Council on 
Radiation Protection and Measurements. Materials that meet the ANSI 
Standard N13.12 criteria are only slightly contaminated and should not 
be confused with low-level radioactive waste.
    Thus, there is a solid scientific basis and a good regulatory 
rational associated with the dose criteria defined in ANSI N13. 12.

              CURRENT ISSUES REGARDING THE NRC RULEMAKING

    The focus of the current debate associated with the NRC rulemaking 
is the recycle of contaminated metals, and fears that consumer products 
will become contaminated to unacceptable levels. However, the subject 
of clearance covers much more, including establishing uniform, dose-
based, radiation survey criteria. Currently, nuclear facilities 
regulated by the NRC, States, or the DOE can release materials, on a 
case-by-case basis, if no radiation can be detected using field 
instruments. This practice does not imply that radioactive 
contamination does not exist, only that none is ``detected.'' The 
determination of what can be detected can vary from facility to 
facility. By establishing clearance standards in the NRC regulations, 
there will finally be uniform guidance in the United States on 
acceptable detection levels that are, hopefully, consistent with those 
recommended by the IAEA and accepted by the international community. 
The existence and application of uniform monitoring and survey criteria 
should reduce the potential for the unintentional release of 
radioactive materials.
    Recycling cleared metals would not mean the dilution of highly 
contaminated metal with other metal in the industry. Rather, it would 
mean the careful sorting of metals, using standard criteria, such that 
no metals above the 1 mrem/y clearance criterion would find their way 
into commerce. Metals containing levels above the standard could be 
further decontaminated or sent for low-level radioactive waste disposal 
if decontamination to the clearance criteria could not be achieved. The 
credibility of the United States' radiation protection framework is at 
stake since many other countries have already adopted uniform clearance 
criteria that the U.S. currently does not have.
    Industry standards, such as ANSI Standard N13.12, can play an 
important role in the regulatory process. In fact, the White House 
Office of Management and Budget (OMB) issued proposed revisions to 
Circular A-119, Federal Participation in the Development and Use of 
Voluntary Standards. These revisions are the outcome of the National 
Technology Transfer Act of 1995 (Public Law 104-113) signed by the 
President in March 1996. The law now requires federal agencies to use 
voluntary, industry standards developed by the private sector whenever 
possible. The purpose of this requirement is to eliminate excessive 
costs to the government by developing its own standards. As a 
recognized standards institute, standards developed under ANSI must be 
considered. Agencies who choose not to use private-sector standards are 
required to document their actions to the Secretary of Commerce. Thus, 
ANSI Standard N13. 12 should play a key role in the development of 
Federal regulations and policy regarding clearance.

                            CLOSING COMMENTS

    Mr. Chairman, as I have outlined, the Health Physics Society 
believes that it is important that clearance or release criteria for 
low levels of radioactive materials be established to provide 
consistency in radiation protection requirements, thereby increasing 
protection of the public. The establishment of strict standards and 
guidelines will ensure that potentially harmful sources are controlled, 
while conserving our natural resources. We strongly support the 
continuation of the NRC rulemaking in this area, and we encourage the 
NRC to adopt the criteria outlined in ANSI Standard N13. 12.
                               __________

STATEMENT OF THE METALS INDUSTRY RECYCLING COALITION: AMERICAN IRON AND 
     STEEL INSTITUTE, AMERICAN ZINC ASSOCIATION, COPPER AND BRASS 
  FABRICATORS COUNCIL, NICKEL DEVELOPMENT INSTITUTE, SPECIALTY STEEL 
       INDUSTRY OF NORTH AMERICA, STEEL MANUFACTURERS ASSOCIATION

    The Metals Industry Recycling Coalition (``MIRC'') is a coalition 
of trade associations representing a broad spectrum of the metal 
industries. MIRC is comprised of the American Iron and Steel Institute 
(``AISI''), the American Zinc Association, the Copper and Brass 
Fabricators Council (``CBFC''), the Nickel Development Institute 
(``NiDI''), the Specialty Steel Industry of North America (``SSINA''), 
and the Steel Manufacturers Association (``SMA''). The members of these 
associations oppose the release of radioactively contaminated scrap 
metal into the stream of commerce.
    Recycling--The metal industries are among the nation's largest 
recyclers. The free release of metal from nuclear facilities into the 
stream of commerce would create serious problems for metal recyclers 
and pose a significant threat to the high rate of recycling that metal 
industries have worked so hard to achieve. The result could be a public 
policy disaster.
    Our Recommendation--Scrap metal originating from fuel cycle 
facilities, i.e. nuclear power plants, licensed by the United States 
Nuclear Regulatory Commission (``NRC''), and from facilities that are 
or were formerly operated by the Department of Energy (``DOE'') should 
not be released for unrestricted recycling or reuse as products in 
commerce or for export. Much of this metal may be radioactively 
contaminated.
    Rather, NRC and DOE should adopt a policy of restricted release of 
scrap metal from nuclear facilities. Restricted release should be 
specifically limited to the following--provided that, in either case, 
the scrap metal meets specified health-based standards at the point of 
use or disposal:
    (1) Recycling or recovery at a dedicated, licensed facility for use 
only at an NRC-licensed fuel cycle facility or at nuclear facilities 
operated by the DOE; or
    (2) Disposal at either a licensed radioactive waste landfill or an 
industrial or municipal landfill.
    Until health-based standards and appropriate monitoring 
requirements are developed through the rulemaking process, scrap metal 
from nuclear facilities should not be released even on a restricted 
basis. NRC and DOE must work together to ensure that the release 
criteria and restrictions adopted by the two agencies are congruent.
    The metals industries recognize that nuclear facilities have items 
that were not used in a way that would cause them to become 
contaminated. These items, such as cranes, metal desks, and filing 
cabinets, should be released for re-use for their original purpose, 
provided the items meet health-based standards when monitored according 
to stringent monitoring requirements established through the rulemaking 
process. They should not be released into the scrap supply, however.
    Reasons: Consumer Perception.--The release of radioactively 
contaminated scrap metal from nuclear facilities for unrestricted 
recycling into industrial and consumer products could adversely affect 
the marketability of metal products made from recycled scrap and, more 
broadly, the marketability of all metal products. The public's 
perception is that any level or type of radioactivity is unsafe, 
official assurances to the contrary notwithstanding. Several media 
reports have already generated public concern. Metal recycling 
industries have worked hard to build public confidence in the safety 
and utility of products made from recycled metal. This confidence would 
be lost if the public, rightly or wrongly, perceives such products to 
be unsafe. For this reason, metal companies have not, and will not, 
accept scrap that is known or perceived to be radioactively 
contaminated.
    Economic Impact.--The presence of radioactive scrap in the stream 
of commerce imposes enormous operating constraints on metal producers 
who are trying to keep radioactivity out of their mills and out of 
their products. At considerable expense, U.S. metal producers have 
installed sophisticated radiation detectors to screen out the small 
quantity of contaminated scrap metal that arrives at their mills. A 
government policy under which radioactively contaminated metal could be 
free released into the stream of commerce would greatly increase the 
volume of radioactive scrap metal arriving at the gates of steel mills 
and other metal melting facilities.
    Currently, metal producers reject loads of scrap that trigger 
radiation detectors, because of the potential consequences of melting 
shielded sources of radioactivity. The unrestricted release of scrap 
metal from nuclear fuel cycle and DOE-operated facilities, however, 
would present a far more onerous problem, as scrap metal with slight 
levels of surface or volumetric contamination can trigger the radiation 
detectors at metal companies across the country, leading to increased 
rates of scrap load rejections. This, in turn, would cause additional 
problems for scrap suppliers and transporters who will have to manage 
and arrange for the ultimate disposition of the rejected scrap.
    Recycling Impact.--Currently, recycling is accurately perceived as 
a social good and thus something to be encouraged. The unrestricted 
release of radioactively contaminated scrap metal from nuclear 
facilities for recycling would tarnish this perception. Aversion to 
radioactive risk could lead consumers to avoid products made of metal, 
especially those with a recycled metal content. The industry would lose 
the public's trust in the integrity and safety of products made with 
metal. Hence a regulatory program allowing unrestricted release of 
scrap metal from nuclear facilities likely would lead to lower rates of 
metal recycling, producing an adverse impact on the environment.
    Conclusion.--Congress should not permit NRC to authorize the 
unrestricted release of scrap metal from nuclear fuel cycle and DOE-
operated facilities into the stream of commerce. Rather, NRC should 
establish scientifically sound, health-based standards for the 
restricted release of such metal. This is the most economically and 
environmentally sound solution. The metal industries cannot become a 
dumping ground for the discards of the global nuclear age.
                               __________

    CLEARANCE OF MATERIALS HAVING SURFACE OR INTERNAL RADIOACTIVITY
            POSITION STATEMENT OF THE HEALTH PHYSICS SOCIETY

    The Health Physics Society* welcomes the opportunity to participate 
in the process initiated by the Nuclear Regulatory Commission for 
development of standards for the clearance of materials having surface 
or internal radioactivity. The Society believes that the definition of 
clearance levels is an important part of the standards that provide for 
the safe handling, use, and disposal of radioactive materials.
---------------------------------------------------------------------------
    * The Health Physics Society is a non-profit scientific 
professional organization whose mission is to promote the practice of 
radiation safety. Since its formation in 1956, the Society has grown to 
approximately 6,000 scientists, physicians, engineers, lawyers and 
other professionals representing academia, industry, government, 
national laboratories, the department of defense, and other 
organizations. Society activities include encouraging research in 
radiation science, developing standards, and disseminating radiation 
safety information. Society members are involved in understanding, 
evaluating, and controlling the potential risks from radiation relative 
to the benefits. Official position statements are prepared and adopted 
in accordance with standard policies and procedures of the Society.
---------------------------------------------------------------------------
    The position of the Society relative to radiation protection 
regulations and standards for the general public have been established 
in previous Position Statements of the Society. Portions of these 
positions relative to the clearance of materials having surface or 
internal radioactivity are:
    (1) we support regulations for radiation protection that are based 
on the National Council of Radiation Protection and Measurements' 
(NCRP) recommendations for dose limits for individual members of the 
public;
    (2) we recommend that constraints \1\ be applied to all regulated, 
non-medical, non-occupational sources of radiation exposure to the 
general public, excluding indoor radon, such that no individual member 
of the public will receive in any one year a total effective dose 
equivalent (TEDE) \2\ exceeding 100 mrem (1 mSv) \3\ from all such 
sources combined; and,
---------------------------------------------------------------------------
    \1\ ``Constraints'' refer to restrictions placed on sources or 
practices in order to achieve the dose limits that apply to an 
individual.
    \2\ The total effective dose equivalent (TEDE) is the sum of the 
absorbed doses that will be delivered to the separate organs or tissues 
during the lifetime of an individual from one year's intake of 
radionuclides plus irradiation by external sources, with each organ or 
tissue dose weighted for the type of radiation producing the dose and 
with an estimate of the risk that the organ or tissue will develop a 
radiation induced cancer or result in a genetic effect.
    \3\ The Sievert (Sv) is the international (SI) unit of dose 
equivalent or of effective dose equivalent; 100 mrem = 1 millisievert 
(mSv). The Society endorses the use of SI units; however, because U.S. 
regulatory agencies continue to use traditional units in regulations, 
this position statement uses the traditional unit for dose equivalent, 
i.e., mrem, throughout the document.
---------------------------------------------------------------------------
    (3) we recommend that dose limits be applied only to individual 
members of the public, not to the collective dose to population groups.
    Expansion and clarification of these recommendations specific to 
clearance of materials having surface or internal radioactivity further 
leads the Society to take the position that:
    (4) we recommend that regulations for radiation protection be based 
on consensus standards of the American National Standards Institute 
(ANSI) issued by the Health Physics Society Standards Committee in 
keeping with the intent of Public Law 104-113 ``National Technology and 
Transfer Act of 1995'' and OMB Circular A-119 ``Federal Participation 
in the Development and Use of Voluntary Consensus Standards'';
    (5) we recommend that primary radiation protection standards be all 
pathway TEDE standards with screening levels related to quantities that 
can be measured such that compliance with these levels will result in 
the primary dose standards being met for reasonable and likely 
scenarios;
    (6) we recommend that these screening levels be derived with 
consideration of the principle of as low as reasonably achievable 
(ALARA); and,
    (7) we support the adoption of ANSI Standard N13.12 (1999), 
``Surface and Volume Radioactivity Standards for Clearance'', which is 
consistent with positions (1) through (6) above.

                          ANSI STANDARD N13.12

    Clearance is the removal from further control, of any kind, of 
items or materials that may contain residual levels of radioactivity. 
In 1964, the Health Physics Society, under the auspices of ANSI, began 
the technical evaluation of clearance, resulting in early drafts of 
ANSI N13.12. These early drafts of the clearance standard were based 
primarily on detection levels that could be achieved using field 
instruments, with secondary concerns about the potential individual 
doses that may result. An early draft version of ANSI N13.12 was 
consistent with the surface contamination limits that were published by 
the U.S. Atomic Energy Commission in the 1974 version of Regulatory 
Guide 1.86, Termination of Operating Licenses for Nuclear Reactors, 
which is still in use today.
    In 1993, the Health Physics Society Standards Committee, in 
agreement with ANSI Committee N13, established a technical writing 
group to develop the final N13.12 clearance standard. The charter of 
the writing group was to develop a consensus clearance standard that 
would be protective of public health based on the recommendations of 
the International Commission on Radiological Protection (ICRP). 
Recommendations of the NCRP that have been adopted as the regulatory 
basis in this country are consistent with those of the ICRP. The 
standard was also chartered to consider both surface and volume 
radioactive contamination, consider radiation detection issues, and 
consider international issues such as the clearance principles outlined 
by the International Atomic Energy Agency and international trade 
implications for recycled or reused items or materials.
    The final clearance standard was approved in August 1999 as N13. 
12, Surface and Volume Radioactivity Standards for Clearance. This 
standard provides both the individual dose criterion of I mrem per year 
for clearance and derived screening levels for groups of similar 
radionuclides. The standard also allows for clearance, when justified 
on a case-by-case basis, at higher dose levels when it can be assured 
that exposures to multiple sources (including those not covered by the 
standard) will be maintained ALARA and will provide an adequate margin 
of safety below the public dose limit of 100 mrem/y (TEDE). It was 
recognized that there were several complex issues that would make it 
difficult to fully implement the clearance standard. As a result, some 
of these issues were defined to be beyond the scope of the standard, 
including: naturally occurring radioactive materials, radioactive 
materials in or on persons, release of a licensed or regulated site or 
facility for unrestricted use, radioactive materials on or in 
foodstuffs, release of land or soil intended for agricultural purposes, 
materials related to national security, and process gases or liquids.
                               __________

 RESPONSES OF RALPH E. BEEDLE TO ADDITIONAL QUESTIONS FROM SENATOR BOB 
                                 SMITH

    Question 1. NRC's success is primarily contingent on industry 
performance. What is the industry doing differently in this new 
environment to ensure public safety continues to receive the 
appropriate level of commitment and to support NRC's efforts to improve 
performance?
    Response. The nuclear power industry's performance in 1999 
demonstrated outstanding safety, reliability and electricity 
production. This level of performance could not have been achieved 
without an extraordinary commitment to public safety and to improving 
all facets of nuclear power plant operation. Data compiled by the World 
Association of Nuclear Operators (WAND) demonstrate that, by every 
measure WANO tracks, including unit capacity factor, unplanned 
automatic plant shutdowns, safety system performance and industrial 
safety, the nuclear industry is performing at a high level of safety 
and reliability. Attached are the WANO indicators showing industry 
improvements in performance over the last 20 years.
    Recognizing the critical importance of safe operation, the industry 
is actively supporting regulatory reform to focus licensee and NRC 
resources on those matters that have the greatest importance to public 
health and safety. The Revised Reactor Oversight Process (RROP) 
represents a major step in ensuring that public safety is the paramount 
emphasis for licensee and NRC resources. Under the RROP, the industry 
is voluntarily providing the NRC with performance indicator data that 
evaluate plant safety performance in seven key areas. The industry has 
worked extensively with the NRC to develop the entire RROP and 
supported a nine-plant pilot project that was completed in November 
1999. The RROP now has been implemented for all operating nuclear power 
plants.
    Self-assessment and corrective action programs have been shown to 
be important to the continued safety improvements within the industry 
and are a key element in the RROP. Thus, the Institute of Nuclear Power 
Operations (INPO) recently developed a self assessment and corrective 
action program guideline that has been issued to each utility. 
Utilities are actively assessing their programs against the guideline 
and making appropriate adjustments. This important area will be part of 
the INPO plant evaluation process beginning this summer.
    The industry also is actively supporting an initiative to risk-
inform the regulations governing power reactor operations to improve 
the safety focus. Revisions to the regulations would be based on risk 
insights from probabilistic safety analyses (PSA) and the extensive 
operating experience accumulated within the industry to date. The 
industry recently submitted to the NRC for its review a document that 
will provide assurance that PSA studies have the necessary quality and 
completeness to provide appropriate risk insights. In addition, the 
industry is developing a guideline document for identifying safety-
important equipment and how this equipment should be treated to ensure 
it is capable of performing its intended function. These documents are 
being shared with the NRC. They serve as the basis for industry 
interactions with the NRC and for moving forward on this important 
project.
    At bottom, the industry's extraordinary commitment to safe, 
reliable performance and continuing improvement in operations, combined 
with its support for a more effective, safety-focused regulatory 
approach, benefit the consumer and the public.

    Question 2. Although public acceptance of nuclear power seems to be 
improving, the industry still suffers from a negative public 
perception. Besides your safety record, what is the industry doing to 
improve its image and publicize its safety record more effectively?
    Response. NEI and its members have engaged in a sustained 
communication effort to articulate to the public the many benefits of 
nuclear power, including advertising on a local and national basis, 
extensive efforts to educate the public through community and other 
outreach efforts, grass roots activities and polling.
    On a local level, electricity utilities regularly provide speakers 
on nuclear energy to civic and other groups, as well as host civic and 
school groups at visitor's centers located at or near nuclear power 
plant sites. Research consistently demonstrates that those who have 
visited a nuclear power plant view nuclear energy more favorably than 
those who have not.
    Electric companies also have active programs to assist teachers in 
developing lesson plans and student materials on nuclear energy as part 
of the science curriculum. Just this week, a group of about 50 teachers 
toured Florida Power & Light's Turkey Point Nuclear Power Station to 
get a better understanding of the plant itself. Organized by FP&L and 
the Miami-Dade Public Schools, the tour and additional instruction will 
help teachers provide their classes information on nuclear power, the 
principles behind it and plant operation.
    On a national level, since 1998 the Nuclear Energy Institute has 
undertaken a communications program specifically designed to educate 
opinion leaders on the benefits of nuclear technologies. NEI advertises 
in national publications like The Washington Post, The Washington 
Times, and The Wall Street Journal and on Washington, DC-area radio 
stations. The advertising program is designed to raise public awareness 
of the many benefits of nuclear technologies, including those used in 
producing electricity, medical research and treatment, food safety, and 
space exploration. The communications program also includes submission 
of articles by professionals in these fields in large daily newspapers 
across the United States.
    NEI also established a comprehensive web site (www.nei.org) that is 
used regularly by members of the general public, educators and students 
at all levels and professionals in the industry seeking more 
information about nuclear power. This site is especially beneficial to 
keep the public informed about emerging issues regarding nuclear 
technologies.
    Although these communications programs help develop public support 
for nuclear energy, the record levels of safety in nuclear power 
operation and efficient and reliable performance of more than 100 
nuclear power reactors in the United States are essential for favorable 
public opinion toward the industry. The industry has publicized the 
results of annual indicators of performance--the WANO performance 
indicator report--to national media and to opinion leaders across the 
country.
    As the Nuclear Regulatory Commission continues to implement the new 
safety-focused regulatory oversight process, the use of the internet 
will extend detailed information on nuclear power plant operations to 
anyone who has access to the world wide web. An important feature of 
this transparent approach to communicating about nuclear energy, the 
NRC's plant performance ratings in 18 categories, will be available in 
real time on a quarterly basis. The public can also retrieve detailed 
inspection reports for each nuclear power plant from the NRC's web 
site.
    Extensive public opinion research demonstrates that the industry's 
improved operation and safety record is beginning to bolster already 
high levels of support for nuclear energy by the public. Public 
confidence in nuclear power plant safety is turning distinctly higher, 
and overall public support for nuclear energy may be on an upswing.*
---------------------------------------------------------------------------
    * Source: Telephone interviews, April 7-9, 2000, with a nationally 
representative sample of 1,000 U.S. adults, margin of error plus or 
minus three percentage points, Bisconti Research, Inc.
---------------------------------------------------------------------------
     Perceptions of plant safety are much more favorable now 
than at any time since the question was first asked in 1983. In the 
early 1980s, about half of Americans rated nuclear power plants as safe 
and now 80 percent believe they are safe.
     Confidence in ``my local electric company's ability to 
operate a nuclear energy plant safely and correctly'' continues to 
increase. It is especially high among people who said that their 
electric company operates a nuclear power plant.
     The percentage saying nuclear energy should play a very 
important role is edging back up. Only 12 percent said nuclear energy 
should not play an important role--an all-time low.
    Enclosed is a copy of the most recent public opinion report based 
on research sponsored by the industry.

    Question 3. Where does the industry see itself in twenty years? 
What regulatory environment would you envisage then?
    Response. The nuclear energy industry and many individual policy 
makers and opinion leaders expect nuclear power to account for an even 
greater percentage of electric generation in the U.S. throughout the 
next 20 years. DOE's Energy Information Agency has predicted that there 
will be an increase in demand for electricity to support economic 
growth. This growth in demand will necessitate more nuclear power 
generation--and likely the construction of more nuclear power plants--
given nuclear power's excellent safety record, high reliability and 
``clean air'' contribution to the environment.
    However, retaining nuclear power as part of a sound national energy 
policy requires the federal government and its administrative agencies 
to pursue policy initiatives to address issues that will have a 
significant impact on the industry's future. Some of those issues are 
listed below:
     There must be a national energy policy that ensures 
diversity and reliability of energy supply, both of which favor 
retaining, if not increasing, the use of nuclear power. Explicit 
policymaker recognition of nuclear's role in maintaining a diversified 
energy portfolio is critical. This recognition should come through 
implementation of the strategies identified in DOE's Comprehensive 
National Energy Strategy and the President's Committee of Advisors on 
Science and Technology report, both of which call for, among other 
things, DOE support for industry efforts to renew operating licenses 
and government sponsored nuclear research initiatives.
     The NRC must continue to adapt to a maturing industry and 
to develop an effective, safety focused regulatory framework. The NRC 
has made substantial efforts to reform its regulatory approach, 
including implementing an innovative regulatory oversight process that 
is more risk-informed and performance-based and, more broadly, 
developing risk informed, performance based regulations. While the 
industry supports the NRC's ongoing efforts to develop a more effective 
regulatory regime, Congress should continue its oversight of the NRC to 
ensure that the agency's actions recognize improved industry safety 
levels and the NRC implements sound budgeting practices and strategic 
planning.
     The federal government must fulfill its longstanding 
obligation to provide for central storage of used nuclear fuel. The 
national policy for management of used fuel was codified in the Nuclear 
Waste Policy Act of 1982 and 1987 amendments. Although DOE currently is 
evaluating placement of a repository in Yucca Mountain, without 
additional legislation the program will not yield timely results, 
forcing some plants to use temporary onsite storage. In addition, the 
government's breach of its contractual obligation is creating a 
taxpayer liability that could exceed $56 billion.
     Federal and state policy makers must explicitly recognize 
the intrinsic economic value of nuclear power as a greenhouse gas 
emission-free energy source. Maintaining nuclear power's emission free 
capacity is necessary to prevent increases in the emission-reduction 
requirements imposed on emitting technologies. In addition, state and 
federal policymakers should (1) consider ways to allow nuclear energy 
to capture the clean air compliance value produced by emission-free 
sources of generation, (2) ensure that nuclear energy is fairly 
labeled, and (3) ensure that nuclear energy is treated equally with 
other non-emitting grid capable electric generating sources if an 
emission-free portfolio standard is adopted.
     Congress must eliminate the duplicative regulatory schemes 
that have allowed EPA to become involved in issues that are more 
appropriately subject of NRC authority. (For example, EPA has 
threatened to overturn NRC's regulatory decisions by seeking 
remediation under Superfund for sites decommissioned in accordance with 
NRC requirements. Another example of unnecessary and unproductive dual 
regulation is the application of the Resource Conservation and Recovery 
Act to commercial mixed wastes.)
    In response to the question regarding the future regulatory 
environment envisaged by the industry, we would expect that NRC 
regulation would continue to focus on the safety aspects of the plant, 
evolving to rely even more heavily on risk-assessment processes in 
evaluating and regulating plant operation. The end result of the 
various NRC regulatory reforms being implemented, and those we expect 
to be implemented in the future, will be a regulatory environment that 
requires adherence to strict safety standards but does not permit the 
agency to attempt to ``manage'' nuclear plant operations.
  

                                
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