Copyright 1999 Federal News Service, Inc.
Federal News Service
FEBRUARY 10, 1999, WEDNESDAY
SECTION: IN THE NEWS
LENGTH:
4324 words
HEADLINE: PREPARED TESTIMONY OF
ROBERT
PERCIASEPE
ASSISTANT ADMINISTRATOR FOR AIR AND RADIATION
U.S.
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE HOUSE COMMITTEE
ON COMMERCE
SUBCOMMITTEE ON ENERGY AND POWER
BODY:
Mr. Chairman and Members of the Subcommittee, good morning. I am Robert
Perciasepe, the Assistant Administrator for Air and Radiation at the U.S.
Environmental Protection Agency (EPA). I am pleased to be here today to present
and discuss the EPA's views regarding H.R. 45, the "Nuclear Waste Policy Act of
1999." Thank you for the opportunity to testify before the Subcommittee
regarding this legislation. EPA appreciates the Subcommittee's interest in the
important issues surrounding the development of environmental protection
standards for the Yucca Mountain repository for spent nuclear
fuel and high-level radioactive waste.
INTRODUCTION
Decades-long use of
electricity from nuclear power plants has left the United States with a
significant problem: how to dispose safely of the tons of highly radioactive
spent nuclear fuel and other wastes created as a result of this power
production. Over the years, an international consensus has developed that the
safest, most appropriate means of disposing of these highly radioactive
materials is emplacement in a deep geologic repository. Since the 1940's, the
federal government has assumed the ultimate responsibility for the care and
disposal of high- level radioactive waste and spent nuclear fuel generated by
either commercial or government and military activities.
HISTORY OF
ACTIVITIES TO DEVELOP A GEOLOGIC REPOSITORY
As the Subcommittee knows,
efforts to address the disposal of spent nuclear fuel and high-level nuclear
waste have been under way for many years. Various government agencies all have
worked diligently to site and develop a deep geologic repository.
In the
Nuclear Waste Policy Act of 1982 (Pub. L. No. 97-425), Congress took significant
concrete legislative steps toward the development of a geologic repository for
the disposal of spent nuclear fuel and high- level radioactive waste. The 1982
Act gave the Department of Energy (DOE) the responsibility for siting, building,
and operating a geologic repository. The 1982 Act also directed EPA to set
generally applicable environmental radiation protection standards based on our
authority under other laws, including the Atomic Energy Act (AEA) (42 U.S.C.
Sections 2014 et seq.). Finally, the 1982 Act required the Nuclear Regulatory
Commission (NRC) to implement EPA's standards by incorporating them into its
licensing requirements for spent nuclear fuel and high-level radioactive waste
repositories. This regulatory scheme, though modified, has survived for nearly
20 years.
-- EPA's General Standards for Disposal of Radioactive Wastes
In 1985, EPA promulgated standards, found at 40 C.F.R. part 191, generally
applicable to the disposal of high-level waste and spent nuclear fuel which is
the waste disposed at Yucca Mountain and transuranic wastes
which is the waste disposed at the Waste Isolation Pilot Plant (WIPP). Though
Yucca Mountain and the WIPP are the only sites currently being
considered, the EPA standards (40 CFR 191) are generic and are designed to apply
to any future sites. In 1987, the U.S. Court of Appeals for the First Circuit
invalidated the individual and ground water protection standards of the disposal
standards and remanded the standard. (Natural Resources Defense Council v. EPA,
824 F.2d 1258 (1st Cir. 1987)). The 40 C.F.R. 191 standard was overturned
largely, in part, over concerns that it was not consistent with the Safe
Drinking Water Act.
-- Nuclear Waste Policy Amendments Act of 1987
In
1987, Congress amended the 1982 Act. Among other things, the Nuclear Waste
Policy Amendments Act of 1987 (Pub. L. No. 100-203) selected Yucca
Mountain, Nevada, as the only potential repository site at which DOE
was to conduct site characterization activities.
-- WIPP Land Withdrawal Act
On October 30, 1992, President Bush signed into law the Waste Isolation Pilot
Plant Land Withdrawal Act (WIPP LWA) (Pub. L. No. 102- 579). The WIPP LWA
reinstated the provisions of 40 C.F.R. part 191, except for those invalidated by
the First Circuit in NRDC v. EPA. It also required EPA to issue standards to
repromulgate the individual and ground water protection standards that the court
remanded. Finally, the WIPP LWA specifically exempted Yucca
Mountain from the 40 C.F.R. part 191 disposal standards, though the
standards would continue to apply to WIPP and to any other geologic repository
for high level waste, spent nuclear fuel, or transuranic waste. The Agency
promulgated the revised standards on December 20, 1993 (58 Fed. Reg. 66,398). On
May 18, 1998, EPA certified that the WIPP facility will comply with the
standards. The Agency is now in the process of inspecting the waste generators
to ensure that certain waste shipped to the WIPP will be suitable for disposal
at that facility. We expect these shipments to commence later in the spring.
-- Energy Policy Act of 1992
The Energy Policy Act of 1992 (Pub. L. No.
102-486) contained several provisions relating to the development of a deep
geologic repository for the disposal of spent nuclear fuel and high-level
radioactive waste. Section 801 of the Energy Policy Act of 1992 mandated that
EPA promulgate "generally applicable standards . . . for protection of the
public from releases from radioactive materials stored or disposed of in the
repository at the Yucca Mountain site." Section 801 also
directed EPA to commission the National Academy of Sciences (NAS) to "conduct a
study to provide . . . findings and recommendations on reasonable standards for
protection of the public health and safety." Congress directed that EPA's
standards be "based on and consistent with" the NAS's findings and
recommendations.
You asked for the Agency's position on, and concerns with,
H.R. 45. You also asked EPA to provide the Subcommittee with information
regarding the Agency's current activities relating to the development of
generally applicable standards for Yucca Mountain. H.R. 45, the
new interim storage legislation, is essentially the same as H.R. 1270 previously
passed by the House, which the Administration made clear the President would
have vetoed. EPA opposes H.R. 45 and the Administrator would recommend to the
President that he veto the legislation if Congress passes it in its current
form. EPA feels that the legislation is not needed. Further, the Agency has
substantial concerns with a number of the bill's provisions. I will address
these questions and concerns in the remainder of my testimony.
EPA'S DRAFT
PROPOSED PART 197
EPA is in the final stages of developing a proposed rule
establishing environmental protection standards for a repository at
Yucca Mountain. This draft proposed rule is based on and
consistent with the NAS's findings. Because the proposed rule is still under
development, it is premature for me to discuss the rule's specific provisions in
detail today.
In an effort to develop workable standards for
Yucca Mountain, EPA has worked closely with DOE and NRC under
the auspices of the Office of Science and Technology Policy on numerous
technical issues underlying the development and implementation of our draft
proposed rule. EPA's goal is to ensure that the standards adequately protect
public health and the environment, that the standards are implementable, and
that the standards provide a fair test of the safety of the Yucca
Mountain repository. I believe that this interagency cooperation has
made our draft proposal better.
PROBLEMATIC PROVISIONS OF H.R. 45
-- 100
millirem/year release standard
H.R. 45 would establish a release standard
intended to "prohibit release of radioactive material or radioactivity from the
repository (that will) expose an average member of the general population in the
vicinity of the Yucca Mountain site to an annual dose in excess
of 100 millirem." EPA believes that this standard does not sufficiently protect
public health and the environment. The numeric standard not only is too high in
comparison to other environmental standards, it is too high in comparison to the
risk allowed in other environmental standards, both domestic and international.
In addition, by protecting the "average" person in the general vicinity of
Yucca Mountain at that numeric level, it potentially leaves
those closest to the site exposed to much higher risks. Finally, the bill as
written appears to ensure that Yucca Mountain will pass the
standard regardless of its actual performance. I will go into each of these of
these problem areas in greater detail.
First, the lifetime risk of a person
developing a fatal cancer as a result of exposure to 100 millirem/year is about
2 chances in 1,000, or 1 chance in 500. EPA typically establishes public health
and safety standards that limit risks to members of the public to between
approximately 1 in 10,000 and 1 in 1,000,000. EPA's existing generic standards
for disposal of spent nuclear fuel and high-level waste set the limit at 15
millirem/year. The lifetime cancer risk associated with this dose is
approximately 3 chances in 10,000. Thus, the risk from exposure to 100
millirem/year exceeds the levels the Agency has already established for the
types of waste that the Yucca Mountain repository is proposed
to contain. This is the standard that EPA applied to WIPP and I can think of no
reason why the people in Nevada should be exposed to higher risks than the
people of New Mexico or other states.
Second, the NAS, in its
Congressionally mandated report on its findings and recommendations for
technical standards at Yucca Mountain, suggested that the
starting point for standard setting is consistent with a standard of 2 to 20
millirem/year. The NAS noted that this range is consistent with other U.S.
nuclear regulations, and is therefore appropriate as a "reasonable starting
point" for use in this instance (NAS Report, at 49). The other regulations
considered by NAS include the WIPP site's regulations (40 C.F.R. part 191); the
National Emission Standard for Hazardous Air Pollutants (NESHAP) promulgated at
40 C.F.R. part 61 pursuant to the Clean Air Act (42 U.S.C. Section 7412);
regulations promulgated at 40 C.F.R. part 300 under the Comprehensive
Environmental Response, Cleanup, and Liability Act (CERCLA) (42 U.S.C. Sections
9601-9675); and EPA's ground water protection standards (see 40 C.F.R. Section
191.16) (NAS Report, at 49-50).
Third, while the International Commission on
Radiological Protection (ICRP) has suggested the 100 millirem/year level as a
guidance, it is important to note that the 100 millirem/year level in H.R. 45
has a different basis than the ICRP recommendation. The ICRP recommends a 100
millirem/year level based on exposures from all sources of radiation, including
future sources, except for medical and background sources. Therefore, this dose
level is not an accepted limit for radiation exposure from one particular
facility. Yucca Mountain is in a region with several other
significant sources of radiation exposure, including the nuclear test cavities
and the low-level and transuranic waste facilities on the Nevada Test Site and
the commercial low-level waste disposal system in Beatty, Nevada. Thus, the
Agency believes that H.R. 45 misuses the international level of 100
millirem/year by allowing just one source to contribute the entirety of a dose
that is meant to be an upper bound of exposure from all sources. H.R. 45 is also
inconsistent with international high level waste disposal standards which range
from 5 to 30 millirem/year. H.R. 45 would provide less protection to Americans
than that afforded to citizens of other industrialized nations.
Not only is
100 millirem/year too high, by applying the standard to the "average" person in
the general vicinity, the standard potentially allows those people closest to
the facility to receive much greater risks. By definition, if you average risks
to a group of people there will be some with above average risks. The potential
for some people to suffer exposure and endure risks that are much higher than
average is especially great at Yucca Mountain. The best
scientific information to date indicates that releases from the site will travel
south of the facility with the prevailing ground water flow paths. People in
other directions from the site will probably not be exposed to ground water
releases. Each person included in the "average dose" calculation who receives no
exposure means that someone else can receive a much greater exposure. Among how
many people would this averaging occur? It is impossible to tell, as H.R. 45
says only those people in the general vicinity but does not define what the
general vicinity is. While some have expressed the concern that the term can be
construed to include people currently living 75 miles away in the outer Las
Vegas suburbs, I am willing to assume that it is intended to be interpreted more
reasonably, for example, to include everyone living within 20 miles of the
repository. (Although 20 miles is very far from the facility for normal standard
setting purposes, it must be remembered that at this time no one lives within 12
miles of the facility.) Even using a 20 mile radius, over 75% of these "averaged
people" live west, north and east of the site in directions where they may
receive no exposure to ground water contamination from the site at all. The
remaining 25% of the people are spread out over a distance of more than 8 miles
and their doses can easily differ by an order of magnitude. Accordingly, the
people living south of the site who receive the highest dose may receive as much
as 40 times the 100 millirem standard. This amount, 4 rem/year, would impose a
fatal cancer risk of 2 in 25. I hope we could all agree that any standard that
allows anyone to endure risks as high as 2 in 25 is not adequately protective.
Instead of this averaging approach, typical radiation standards use either
the "critical group" or "Reasonably Maximally Exposed Individual" approach. The
NAS proposed using the ICRP's critical group concept as a means of providing a
more accurate basis for an individual exposure standard, and for preventing
unnecessary and excessive dilution of releases from the repository. One of the
most important elements of this approach is that it limits the size of the
assumed exposed population to prevent misleading dilution of the contamination.
Only those people who receive roughly similar doses can be considered.
Traditionally, in standard setting, the Agency has used a "Reasonably Maximally
Exposed Individual" (RMEI) approach which closely approximates the critical
group approach. In either approach, the applicable standard is more protective
of the population as a whole because it applies to those individuals identified
to have the highest level of risk. These approaches ensure that all people
receive at least the protection that is promised by a given standard.
Finally, section 205(d)(2) requires the NRC to assume that, after DOE closes
the Yucca Mountain repository, "the inclusion of engineered
barriers and (DOE's) post-closure actions" at the repository will suffice to:
(1) prevent human activity that poses an unreasonable risk of breaching any of
the repository's barriers, and (2) prevent any increase in exposure to radiation
above the 100 millirem/year level specified in section 205(d)(1). Our legal
interpretation of this second provision is that no matter how the repository
performs in modeling to assess performance it simply cannot fail to pass the
standards. When NRC reviews DOE's application for a license, the NRC must assume
either that the canisters containing the spent fuel will not leak or that DOE
will carefully watch the site for the next 10,000 years and somehow prevent any
violation of the 100 millirem/year average dose level. This provision makes the
actual performance of the repository irrelevant to licensing. In effect, H.R. 45
provides that even if Yucca Mountain releases high levels of
radioactive contaminants, it should be licensed because DOE will always be there
to fix whatever problems may arise. I believe that the assumption that we will
be able to monitor the site actively for 10,000 years, twice the length of
recorded human history, is at best flawed, and at worst, renders any serious
effort to determine the safety of the site meaningless.
Even if this problem
is corrected, the basic premise of the section is faulty. H.R. 45 totally
ignores the NAS recommendation that DOE perform an analysis of the effect of
human intrusion on the repository's performance. Instead, H.R. 45 relies on
DOE's institutional oversight to ensure that human intrusion does not occur.
Even though the NAS acknowledged that accurately predicting the exact
nature of future human intrusion is difficult, it recommended the inclusion of
such an analysis in EPA's standards. The NAS made this recommendation because it
believed that, despite the difficulty of accurately predicting future human
intrusion, it is important for DOE to analyze the possible impacts of such
intrusion on the repository's ability to contain the radioactive materials.
Although the NAS found it unreasonable to assume that a system for post-closure
oversight, based on active institutional controls, will prevent intrusions or
releases in excess of allowable radiation release limits, H.R. 45 makes this
very assumption. The NAS recommended use of a single, stylized scenario in which
a drill penetrates a waste canister sometime in the future when some of the
canisters have failed, and continues into the aquifer beneath the repository.
Similarly, during the licensing of the WIPP, EPA's regulations required DOE to
demonstrate the ability of the repository to protect future generations from the
impact of intrusion into the repository. DOE's analysis went a long way toward
assuring the public that the WIPP repository was safe.
-- Ground water
protection
H.R. 45 contains no provision for the protection of ground water
for the Yucca Mountain repository. As a result, H.R. 45 as
drafted would potentially permit an exposure limit of 100 millirems through the
ground water pathway. Ground water is one of our most precious resources. Once
it is contaminated, ground water is extremely difficult and expensive to clean.
The protection of the Nation's ground water is one of the Administration's most
critical environmental objectives.
The need for ground water protection in
this instance is especially compelling. It appears that the most likely path for
radiation to escape from the repository is through the ground water pathway. As
the NAS stated in its report, "(n)ear Yucca Mountain, there is
no flowing surface water that might serve as a source in preference to ground
water." The nearby human population relies, and presumably will continue to
rely, on the area's ground water for drinking, irrigation, and domestic use. Let
me assure you that the ground water in question is not a minor amount. If there
are releases from Yucca Mountain, they will ultimately
contaminate a sole source aquifer capable of supplying drinking water for over
250,000 people. This is a significant resource that deserves protection.
Therefore, adequate protection of the ground water around and underneath
Yucca Mountain is crucial to the effectiveness of any
applicable standards for protection of public health and safety. The waste
proposed for disposal in Yucca Mountain will remain radioactive
for many thousands of years and we must think of the water needs and health and
safety of many future generations.
-- Limitations on the Applicability of
NEPA to Yucca Mountain
H.R. 45 limits the applicability of
the National Environmental Policy Act (NEPA) (42 U.S.C. Sections 4321-4370d) to
DOE's activities at Yucca Mountain. Section 102 of NEPA (42
U.S.C. Section 4332) requires the preparation of an Environmental Impact
Statement (EIS) for federal actions that significantly affect the quality of the
human environment. One of the key features of the EIS is that the agency
planning to undertake the major federal action in question must consider
alternatives to the planned action. It is from a serious analysis of
alternatives that good public policy is created. As written, H.R. 45 precludes
the incorporation of NEPA's core values in any assessment of the environmental
impacts of either the interim storage facility or the repository. While there
may be some justification in some minor limiting of NEPA analyses of issues
already decided by Congress, H.R. 45 prevents DOE from considering alternative
sites, or alternative designs, for both an interim storage facility and a
permanent repository, in any EIS it prepares pursuant to NEPA. A critical effect
of these provisions is that, by limiting the alternatives that DOE may consider,
they effectively will deny the public's right to comment on critical health and
safety issues. Also, the provisions may lead to ill-informed decision-making on
DOE's part because DOE will not receive input from the public on these various
aspects of the facilities' development.
-- Preclusion of Application of EPA
Standards
Section 205(d) specifically prohibits the EPA from
"promulgat(ing), by rule or otherwise, standards for the protection of the
public from releases of radioactive materials or radioactivity from the
repository." It also precludes the NRC from incorporating in its licensing
regulations for Yucca Mountain any such EPA standards existing
on the date of the bill's enactment.
The Energy Policy Act mandated that
EPA, through a public process, develop standards for protection of the public
for Yucca Mountain, consistent with the NAS's findings and
recommendations. Section 205(d) short-circuits ongoing efforts at the Agency to
develop public health standards for the permanent repository through a public
rulemaking process, as the Energy Policy Act mandated. That process of proposed
rule, hearings, and public comment serves to assure development of the most
appropriate standards and to strengthen public confidence in the result.
--
Preemption of all other federal, state, and local laws
EPA strongly objects
to section 501, which contains an unprecedented preclusion of the application of
any environmental laws that are inconsistent with, or duplicative of, the Atomic
Energy Act and the Nuclear Waste Policy Act of 1999, to DOE's activities at
Yucca Mountain. This provision makes unavailable the full
panoply of environmental laws available to protect public health and the
environment from potential releases from the repository. Further, section 501
preempts all state and local laws that are "an obstacle" to accomplishing or
carrying out the Nuclear Waste Policy Act of 1999 or a regulation promulgated
thereunder. Since "obstacle" is not defined, it logically could apply to any
requirement which increases the cost of DOE's operation of the site. In other
words, Yucca Mountain becomes the only facility in the Nation
where local, state and federal statutes and regulations do not apply.
It is
possible to envision several serious deleterious effects this section may have.
For example, section 501 will preclude application of the Safe Drinking Water
Act to ground water affected by releases from Yucca Mountain.
Protection of ground water resources is one of EPA's most important
environmental objectives. It is extremely troublesome that, if section 501 as
introduced becomes law, persons residing in the region surrounding Yucca
Mountain will have less protection of their drinking water supply than
persons living elsewhere in the country.
Moreover, section 501 raises
significant federalism concerns. It is not uncommon for the federal government
to preempt state laws in some regulatory areas, especially where state and local
laws may conflict with a national regulatory scheme established in a federal
statute. Here, however, the preemption is extreme and unprecedented. It applies
to one facility. It denies the State of Nevada, its affected local governments,
and its citizens any legal avenues for remedying public health and safety
problems that arise because of the location or operation of the repository at
Yucca Mountain.
CONCLUSION
In conclusion, EPA opposes
H.R. 45 in its current form. EPA believes the legislation is not needed. I know
that many of you believe that this bill is necessary because it will lead to the
development of Yucca Mountain as a safe place to dispose of
spent nuclear fuel in particular and to nuclear waste disposal in general. I
fear that it will have exactly the opposite effect. H.R. 45, no matter how well
intentioned, effectively weakens every safeguard of public health and safety. It
sets weak standards, then further dilutes them by averaging over large numbers
of unaffected people. In key areas, the bill directs NRC to assume compliance
rather than to evaluate the performance. Other state or federal laws are simply
overridden if they present an obstacle to operating the site. This is not the
way to build public confidence in, and acceptance of, a controversial public
project. I believe that the regulatory process can work, that the combination of
EPA standards and NRC implementation will, using good science, demonstrate in an
open and fair public process the true performance capabilities of Yucca
Mountain. If the site is safe, it will pass the standards and waste
will be emplaced, if not, then the site will be rejected. This is as it should
be. In deciding whether or not to place the Nation's spent nuclear fuel in
Yucca Mountain, we are making a decision that will affect
future generations for thousands of years. We owe it to the future to spend time
now making sure we make the right decision.
Thank you again for the
opportunity to appear today before the Subcommittee to present the EPA's views
regarding H.R. 45, the "Nuclear Waste Policy Act of 1999." This concludes my
prepared statement. I would be happy to answer any questions that you may have.
END
LOAD-DATE: February 17, 1999
