It is my pleasure to be here today to present the U.S. Nuclear Regulatory Commission's (NRC) views on the management and disposal of low-activity radioactive waste. In that context, I also offer NRC's views on the Formerly Utilized Sites Remedial Action Program (FUSRAP) of the U.S. Army Corps of Engineers (the Corps). Because the Uranium Mill Tailings Radiation Control Act (UMTRCA) does not direct the NRC to exercise regulatory authority over milling activities and facilities that were not subject to license at the time of the effective date of UMTRCA, the NRC has not regulated the disposal of mill tailings resulting from the FUSRAP program.
The Commission has stated that, absent specific direction from Congress to the contrary, NRC will continue to refrain from regulating the Corps in its cleanup activities at FUSRAP sites. Attachment 1 to my testimony is a copy of the Director's Decision which I issued on March 26, 1999, which is probably the most complete exposition of the Commission's position on this matter. Former Chairman Jackson laid out a briefer description of our policy in a April 28, 1999 letter (Attachment 2) which was reiterated in a July 29, 1999 letter signed by former Chairman Dicus (Attachment 3). Stated succinctly, the NRC recommends legislation if Congress intends that NRC regulate pre-UMTRCA mill tailings in the FUSRAP program. The NRC has not sought such authority or the necessary resources to regulate that material, and the Appropriations Committees, most recently in the House Appropriations Committee Report on the Energy and Water Development Bill for FY 2000 (which was adopted by the conferees), have clearly indicated that Congress does not intend NRC to undertake licensing the Corps' cleanup of contaminated FUSRAP sites.
In my testimony, I will address not only how the disposal practices of the Corps compare with those that the NRC regulates, but also the broader topic of risk-informed disposal of radioactive material. In my presentation, I will address the following questions, among others:
--How do FUSRAP wastes compare with other similar radioactive wastes and the disposal of other wastes?
--Why are radioactive wastes with similar concentrations and hazards disposed of in different ways ~
--What safety issues need to be addressed in the disposal of materials like FUSRAP wastes in RCRA Subtitle C hazardous waste landfills?
In the more than two years since responsibility for the FUSRAP program was transferred by Congress from the U.S. Department of Energy (DOE) to the Corps, we have heard from State officials; the Conference of Radiation Control Program Directors; commercial firms; legislators, both Federal and State, including two members of this Committee; members of the public; and environmental groups asking us to exert our regulatory authority over the disposal of pre-UMTRCA mill tailings, often within the context of activities of the Corps as it remediates FUSRAP sites. More recent concerns with respect to the disposal of mill tailings from FUSRAP sites have been raised in petitions submitted to NRC this year. These petitions are currently under review.
Some of the reasons offered for NRC regulation of FUSRAP material are legal and involve interpretation of the Atomic Energy Act (AEA) and the Uranium Mill Tailings Radiation Control Act (UMTRCA). In my March 1999 Director's Decision, I concluded we do not have the authority to regulate the Corps' handling of radioactive material at FUSRAP sites. Moreover, Congress has not provided NRC with any money or personnel to undertake an oversight role of any kind, and as I stated earlier, the Appropriations Committees have given the Commission clear guidance not to involve itself in FUSRAP.
Some of the arguments made by those who would have NRC license the Corps' activities are based on the observation that the pre-UMTRCA and post-UMTRCA materials are similar in radiological characteristics and should be treated the same. However, it is not unusual for similar radioactive materials to be regulated differently. This is the result of the fragmented statutory regime governing radioactive materials.
Finally, some reasons offered for NRC regulation of FUSRAP material are expressed in terms of health and safety and environmental concerns. Despite this view, we believe Congress has clearly given the Corps authority for remediation of FUSRAP sites pursuant to CERCLA in a manner that protects the public health and safety.
Nonetheless, if Congress believes NRC should regulate this area, the NRC stands ready to assist. However, the NRC would need additional resources to regulate FUSRAP material.
My testimony focuses on disposal of mill tailings from FUSRAP sites in non-NRC regulated facilities, in particular in Resource Conservation and Recovery Act (RCRA) Subtitle C hazardous waste disposal facilities. NRC mill tailings licensees do not use such facilities for radioactive waste disposal, because NRC-controlled radioactive materials and wastes are regulated under the Atomic Energy Act and, absent the addition of hazardous waste, are not subject to RCRA.
In order to put this discussion into context, I will address other types of radioactive wastes that are similar to mill tailings because of their radioactivity levels, and the presence of long-lived radioactive materials such as uranium, thorium, and radium. These similar materials with comparable hazards may or may not be regulated. If they are, then this may be accomplished by other agencies under programs which require disposal in specific kinds of facilities. I will compare the facilities used for disposal of these different materials and will discuss how they differ in their approaches for managing risk to the public and the environment.
FUSRAP
As part of the Nation's early atomic energy program, the Manhattan Engineering District and the Atomic Energy Commission performed work during the 1940s through the 1960s at a number of sites throughout the United States. The radiological contaminants at these sites involved primarily low levels of uranium, thorium, and radium, with their associated decay products. DOE began FUSRAP in 1974 to study these sites and take appropriate cleanup action. By 1997, DOE had placed 46 sites in the program and had completed remediation at 25 sites. Remedial action was planned, underway, or pending final closeout at the remaining 21 sites.
DOE managed the program under its AEA authority. The AEA provided that NRC did not regulate these sites or have any oversight role as to their cleanup. On October 13, 1997, Congress passed the Fiscal Year 1998 Energy and Water Development Appropriations Act which transferred administration of FUSRAP to the Corps and appropriated funds to the Corps for the completion of FUSRAP activities.
Pursuant to a provision of the Fiscal Year 1999 Energy and Water Development Appropriations Act, the Corps is executing FUSRAP in accordance with the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA). Under CERCLA, the Federal lead agency is exempt from licensing and permitting regulations for work done on site, but not from the substantive requirements of any applicable or relevant and appropriate regulations.
A number, but by no means all, of FUSRAP sites contain pre-UMTRCA mill tailings, the focus of my testimony today. Section 11 e.(2) of the AEA defines the tailings or residue produced by the extraction of uranium or thorium from ore processed primarily for its source material content as byproduct material. Mill tailings typically have most of the uranium or thorium removed, but still contain other radioactive elements in the decay chains for uranium and thorium, especially thorium 230 and radium. Mill tailings also can contain hazardous chemicals used in or released from the processing to extract uranium, and these can include nitric, hydrofluoric, and sulfuric acids; ammonia; heavy metals; and benzene.
The standards applicable to the disposal of mill tailings cells were promulgated by the U.S. Environmental Protection Agency (EPA) and NRC conformed its regulations to these standards.
For the non-radiological components of mill tailings, Congress directed EPA in UMTRCA to develop standards that offered a comparable level of protection as RCRA Subtitle C facilities. Therefore, tailings and related waste that were produced at facilities under an NRC license at the effective date of UMTRCA, or licensed thereafter, are regulated by NRC or Agreement States to meet regulations derived from RCRA. Those tailings produced at facilities (such as FUSRAP sites) not under an NRC license at that time, or thereafter, have not been regulated by NRC, based on the understanding that NRC's authority does not extend to such facilities. Thus, no NRC requirements have been applied to such tailings. Because of this, the Corps may dispose of its pre-UMTRCA mill tailings in RCRA hazardous waste facilities, subject to the authority of regulatory bodies such as EPA or State permitting agencies that administer hazardous waste programs. According to the Corps, the use of RCRA Subtitle C facilities in the FUSRAP program for disposal of certain kinds of radioactive wastes fosters competition, precludes capacity limitations, and minimizes schedule delays. The Corps' disposal contracts for FUSRAP wastes total several hundred million dollars.
To put these disposals in different types of facilities into a risk context, I will discuss several kinds of radioactive wastes, how they compare in their radioactivity concentration, especially for long-lived radionuclides, and how each is disposed of.
Comparison of mill tailings with other radioactive waste
Figure 1 illustrates the relative radioactivity of different kinds of radioactive waste, including spent fuel, naturally-occurring and accelerator-produced radioactive material (NARM), exempt source material, technologically enhanced naturally occurring radioactive material (TENORM), low-level waste, mill tailings, and, for reference, soil (the units are relative with background soil radioactivity set at one). Low-level waste, NARM, TENORM, and mill tailings are characterized by wide ranges of radioactivity -- from background or near background soil levels to levels that are 100 million times more concentrated than natural concentrations in soil. Although concentrations of radioactive material at the high end of the range for LLW are within a factor of 100 of the concentrations in spent fuel (and in fact overlap with some U.S. Department of Energy high-level radioactive waste), most radioactivity in LLW decays away within a few hundred years. The radioactivity of HLW and spent fuel also decays, but these wastes are more highly radioactive for very long periods of time.
TENORM is material whose radioactivity has been enhanced (i.e., increased or concentrated) as a result of human intervention. It includes coal ash from coal-fired power plants, uranium mining overburden, phosphate ore, pipe scale from oil and gas production, and water treatment sludge. In addition, the mineral extraction industry produces large volumes of TENORM with some of the characteristics of uranium mill tailings, including processing chemical residues. The EPA reports that TENORM volumes produced annually in the U.S. may be in excess of one billion tons. For comparison, the annual amount of LLW produced for disposal under the Low-Level Radioactive Waste Policy Amendments Act of 1985 is less than 100,000 tons, or one ten-thousandth as much as TENORM. If uranium mill tailings were not defined as 11e.(2) byproduct material by the AEA, they would be considered to be TENORM.
The range in radioactivity found in mill tailings, LLW, exempt source material, and TENORM significantly overlaps. These four groups of wastes are also similar in that they contain or may contain (for LLW) the long-lived isotopes of uranium, thorium, and/or radium. Thus, from a risk perspective, LLW, exempt source material, TENORM, and mill tailings are similar in that each contains very long-lived radionuclides, often in the same range of concentrations. However, from a legal perspective, they are regulated differently.
Laws and regulations for disposal of mill tailings and hazardous wastes
Different laws and programs that apply to these different materials affect how they are regulated, even though they may pose a similar risk. -Mill tailings at licensed sites covered by UMTRCA are regulated by NRC under the AEA, and must be disposed of in tailings impoundments that meet applicable NRC regulations. As noted above, mill tailings not associated with licensed activities under UMTRCA are understood to be outside the NRC's regulatory authority, but they must be disposed of in a facility authorized by a permitting authority to receive such wastes. Our understanding is that a number of laws apply or may apply to such materials and to other forms of TENORM, including the Clean Air Act, Clean Water Act, Safe Drinking Water Act, CERCLA, and Toxic Substances Control Act (TSCA). None of these acts provides EPA with explicit authority over TENORM, but EPA is working under them to establish standards for TENORM. In the absence of such standards, the National Academy of Sciences has observed that public exposures to TENORM are regulated by EPA in a rather fragmentary manner.) In the absence of more definitive EPA regulations, some States have adopted their own regulations for TENORM. In practice, TENORM waste that is disposed of (as opposed to remaining in place at the site of generation or stored) may be placed in a RCRA Subtitle D landfill, a Subtitle C hazardous waste facility, or an NRC or Agreement State licensed LLW facility, depending on the State and the hazard of the TENORM. Exempt source material, source material with less than 500 parts per million uranium or thorium, has also been disposed of in RCRA Subtitle C hazardous waste facilities. The NRC is currently looking at its source material regulatory framework in consultation with EPA and a host of other Federal agencies and the States with the objective of more rationally addressing risks from these similar materials.
\1\Evaluation of Guidelines for Exposures to Technolonically Enhanced Naturally Occurring Radioactive Materials, 1999, National Academy of Sciences, Board on Radiation Effects Research, National Academy Press, 281 p.
Because FUSRAP material mill tailings from FUSRAP sites are understood to be outside the regulatory authority of the NRC, the Corps has additional options for disposal of this material, instead of just placing it in an NRC-licensed tailings impoundment. As with TENORM, the Corps has allowed some FUSRAP material to be disposed of in RCRA hazardous waste facilities. FUSRAP material also has been disposed of in an NRC-licensed 11e.(2) disposal facility (Envirocare). The Corps has indicated that none of this material has been disposed of in a Subtitle D landfill.
Comparison of hazardous waste facilities with mill tailings impoundments -- isolation of waste from the environment
Mill tailings produced under an NRC license are required to be disposed of in special impoundments which meet detailed requirements. The NRC regulation is based on the EPA standards for mill tailings, which, in turn, are based on the EPA hazardous waste standards applicable to RCRA waste impoundments and landfills. State-of-the-art mill tailings impoundments, like RCRA hazardous waste disposal cells, rely, in part, on a system of liners and leachate detection and collection systems to prevent releases of hazardous and radioactive materials to the environment. Environmental monitoring, inspection, site selection, and other detailed requirements are also employed at these sites. Because mill tailings impoundments and hazardous waste cells are based in large part on the same EPA requirements, the NRC believes that both RCRA landfills and NRC-licensed disposal facilities are protective. It should be noted that NRC mill tailings regulations include requirements not found in EPA's RCRA regulations, such as government ownership of the tailings piles, and designs that provide for long-term stability (long-term is taken to mean a period of 1000 years, to the extent practicable, but in no case less than 200 years). EPA's regulations, on the other hand, have requirements for enduring institutional controls which are aimed at achieving a similar level of protection.
Practices at RCRA facilities vary depending upon the permit conditions for radioactive materials imposed by EPA or the State permitting agency, and the radioactivity of the waste *or intended to be disposed. The Buttonwillow hazardous waste facility in California, for example, accepts TENORM that is less than 2000 psi/gram (approximately 200 on the chart in Figure 1 ) in radioactivity concentration. The 2000 psi/gram threshold derives apparently in part from Department of Transportation regulations on shipment of radioactive material. Under those regulations, material with concentrations of radioactivity below 2000 psi/gram is not considered radioactive material for purposes of transportation. The Envirosafe facility in Idaho, which accepts naturally occurring radioactive material and FUSRAP waste, is subject to permit conditions that specify limits for uranium, thorium, and other isotopes, and impose the same radioactivity concentration limit as specified for the Buttonwillow facility in California.
Comparison of hazardous waste facilities with mm tailings impoundments -- worker protection
NRC and Agreement State requirements for uranium mills and mill tailings impoundments specify that a radiation protection program be implemented. This program is designed, among other things, to ensure that doses to radiation workers do not exceed 5000 millirem/year. NRC regulations also limit radiation doses from licensed operations to individual members of the public to 100 millirem/year. The program requires monitoring, recordkeeping, and implementation of design measures and operating procedures to keep radiation doses as low as is reasonably achievable.
It is our understanding that the State-issued RCRA permit for the Envirosafe facility in Idaho provides that the criteria contained in the permit will assure that the potential dose to a worker handling FUSRAP material should never exceed 400 millirem/year. This is approximately the dose received on average by commercial aircraft flight crews and is more than an order of magnitude below NRC's worker standard. Because the NRC has no authority over this facility, it has not conducted any reviews of the procedures for controlling doses to workers. The actual doses to workers from FUSRAP material would depend upon the concentrations of the material received, the types of radionuclides, whether or not the waste was in a container (dust from soil, for example, could be inhaled by a worker), the number of shipments per year, the work practices, and the duration of exposure.
Conclusion
As I noted in the beginning of this testimony, if Congress believes NRC should regulate the disposal of pre-UMTRCA mill tailings in the FUSRAP program, the NRC is ready to assist Congress in amending UMTRCA. However, the NRC would need additional resources to regulate FUSRAP material. In my testimony today, I have provided a context in which a more comprehensive approach to regulating FUSRAP and similar materials might be considered by the Congress.
This completes my statement. I would be pleased to answer any questions from the Committee.