Background
The Department of Energy (DOE) originally created the FUSRAP program in 1974 to address radiological contamination at sites used by two of DOE's predecessor agencies, the Manhattan Engineering District (MED) and the Atomic Energy Commission (AEC), from the 1940s through the 1960s. The contaminants are primarily low levels of uranium, thorium, and radium, with their associated decay products. Mixed wastes are also present. From 1974 to 1997, the program was administered by DOE, which took the position that these wastes should be disposed of only in DOE facilities or in sites licensed by the Nuclear Regulatory Commission (NRC).
The Energy and Water Development Appropriations Act for fiscal year 1998 (FY98) P.L. 105-62, signed into law on October 13, 1997, transferred responsibility for the administration and execution of the FUSRAP program from the Department of Energy to the U.S. Army Corps of Engineers. At the time of enactment of P.L. 105-62, according to DOE, remediation was completed at 24 sites with some ongoing operation, maintenance and monitoring being undertaken by DOE. Remedial action was planned, underway, or pending final closeout at the remaining 22 sites.
Legal Inconsistency and Concerns
Following the transfer of the FUSRAP program the U.S. Army Corps of Engineers made and inquiry with the NRC regarding the agency's position on the relevance of its licensing program or rules and regulations for the disposal of FUSRAP wastes. Specifically, the Army Corps asked "Is an NRC license required for handling activities related to disposal of the FUSRAP wastes...?" In a response from Robert L. Fonner, Special Counsel for Fuel Cycle and Safeguards Regulations, the NRC indicated that "Prior to the enactment of the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), neither the AEC nor the NRC claimed statutory jurisdiction over the tailings from ore processed for source material." "UMTRCA gave NRC statutory authority over such tailings, but only over tailings resulting from activities licensed by NRC as of the effective date of the act (November 8, 1978), or thereafter." Mr. Fonner concluded that NRC had no basis to assert any regulatory authority over the handling of FUSRAP wastes generated prior to the 1978 enactment of UMTRCA. Further, the Fonner correspondence states that "There are no NRC rules or regulations that would preclude disposal of FUSRAP wastes at a Resources Conservation and Recovery Act (RCRA) disposal facility."
Since neither I nor our committee have closely analyzed this issue, any assessment on my part regarding what is happening here must be considered preliminary. Having said that, I have two strong - and quite negative - reactions to these developments. The first is that there are obvious deficiencies in a system that treats differently pre-1978 and post-1978 FUSRAP waste, when there is no physical difference between these two categories of waste and no difference in the health and safety dangers posed by the two categories.
The second reaction is of greater concern. Both the NRC and the Army Corps of Engineers have indicated that the disposal of FUSRAP wastes at RCRA facilities is not troublesome because the tailings are subject to regulation under other federal and state laws. However, because the Atomic Energy Act, as amended by UMTRCA, preempts the field of nuclear safety regulation for 11e.(2) byproduct materials, it appears that these materials would not be subject to any state regulation protecting the public from radiation exposure. Further, it is my understanding that the Environmental Protection Agency (EPA) does not have jurisdiction under RCRA to regulate these wastes. If my understanding is correct, then under the regulatory regime now in place pre-1978 wastes, even those with high radioactivity levels, will not be regulated by any federal or state regulatory agency. The regulatory vacuum created by this gap in the law is an unacceptable and dangerous state of affairs, and one that our citizens should not be exposed to.
Clearly, clarification-is needed to address these inconsistencies in the law. NRC Chairman Richard Meserve has indicated to me in correspondence dated March 8, 2000, that "A legislative solution would be the most direct approach to clarifying the NRC's responsibilities under UMTRCA." It is my hope that the testimony given today will help this Committee move forward with legislation establishing a risk-based standard for the disposal of low-level radioactive wastes.
I look forward to today's testimony and welcome our witnesses.