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Document 10 of 131.

July 25, 2000, Tuesday

SECTION: CAPITOL HILL HEARING

LENGTH: 20698 words

HEADLINE: HEARING OF THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE

SUBJECT: THE DISPOSAL OF LOW-LEVEL RADIOACTIVE WASTE

CHAIRED BY: SENATOR ROBERT BENNETT (R-UT)

LOCATION: 406 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.

TIME: 9:30 AM. EDT DATE: TUESDAY, JULY 25, 2000

WITNESSES:

JOSEPH WESTPHAL, ASSISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS;

CARL PAPERIELLO, DEPUTY EXECUTIVE DIRECTOR FOR MATERIALS, RESEARCH AND STATE PROGRAMS, NUCLEAR REGULATORY COMMISSION;

MIKE SHAPIRO, DEPUTY ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY;

EDGAR BAILEY, CHIEF OF RADIOLOGICAL HEALTH BRANCH, CALIFORNIA DEPARTMENT OF HEALTH SERVICES;

MAX SCOTT, PROFESSOR, LOUISIANA STATE UNIVERSITY;

DAVID ADELMAN, STAFF ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL;

SCOTT SLESINGER, VICE PRESIDENT OF GOVERNMENTAL AFFAIRS, ENVIRONMENTAL TECHNOLOGY COUNCIL;

ANTHONY J. THOMPSON, ATTORNEY, URANIUM RECOVERY INDUSTRY;

BODY:
SEN. ROBERT BENNETT (R-UT): The committee will come to order. And let me offer my apologies for being late. I won't bore you with the details, but I will apologize to you because I recognize that we have to move quickly this morning. The life we lead in the week before the August recess, everybody has another hearing to go to and many demands on their time.

Senator Inhofe, who was the first one here, does have another committee meeting to go to; and I will forego any opening statement of mine in order to here his so that we can accommodate his schedule.

Senator.

SEN. JAMES INHOFE (R-OK): That's very kind of you. And we do have our Armed Services Committee with Bill Cohen there, and it's in an area that I feel I really need to be there. So thank you for allowing me to go first. First of all, I'd like to tell you, Mr. Chairman, Dr. Westphal -- one of the fellow Okies -- we've known each other for a long time. I've always been honored to serve with him. I'm sorry I won't be able to stay here for the entire committee hearing.

This is an important hearing that we have today, addressing low- activity radioactive waste. I want to repeat that-- low-activity radioactive waste.

I have heard from radiation scientists that this level of radioactivity is something that you could be exposed to more of in this room just because of the marble than you would of the waste we're talking about. While I certainly understand the frustration of defining waste by the year it was produced instead of radiation or health threat, I don't think the appropriate response is just to send all the wastes to an NRC facility. So the important issue is whether the waste is being properly handled and disposed of.

Based upon the experience of the program, I do not believe it's necessary to send all low-level wastes to an NRC facility. There are dozens of private sites in competition, and it does have an effect on the cost of disposal. Because of this issue and other radiation issues, I believe that Congress does need to take a closer look at the radiation standards problem. As the chairman of the Nuclear Safety Subcommittee, I intend to do just that.

Last month, the GAO issued a report on Radiation Standards, Scientific Basis Inconclusive, and EPA and NRC Disagreement Continues. That's actually a quote there; that's the name of the report. Three key findings were -- this was the report, you might remember, that Senator Domenici was asking for -- 1) U.S. radiation standards for public protection lacking conclusively verified scientific basis, according to a consensus of recognized scientists; 2) lacking conclusive evidence of low-level radiation effects, U.S. regulators have in recent years set sometimes differing exposure limits; and 3) cost of implementing radiation protection standards at nuclear cleanup and waste disposal facilities vary from site to site.

This report verifies what I believed all along, our radiation standards are not consistent, and because of this, three months ago I asked the Health Physics Society to develop legislative principles to address radiation standards. I intend to use these principles drafted scientific experts to write legislation which I hope to introduce before the end of the year. I'll be working on this issue with members of my subcommittee and other interested parties to craft a solution for all of our radiation standards issues, including the FUSRAP wastes, metal recycling, decommissioning of facilities in Yucca Mountain.

I realize this issue cuts across party lines. Certainly, I find myself philosophically disagreeing with our distinguished senator from California many times and normally in agreement with the senator from Utah; however, I believe simply changing the date and requiring all wastes to be sent to the NRC licensed facility will be regulatory overkill and add nothing but additional costs. I've been told that the cost could be as much as 4 to 10 times higher at an NRC licensed facility. I believe a better approach would be to look closely at all radiation standards.

I have a chart that shows some of the different costs of the disposing of this waste. One, the waste at the NRC site in dealing with the bulk soil survey volume-- the same amount of disposal at that site was $510 as opposed to when there is competition it is $71.50. And so I ask consent to include this by my opening remarks, Mr. Chairman.

SEN. BENNETT: Without objection.

SEN. INHOFE: I do feel that most of this is money that is spent by the public sector. These are tax dollars, and we should be as frugal -- and I'm sure you would agree with that statement -- as we can be in our disposal costs. And I thank you very much for allowing me to be on the record first.

SEN. BENNETT: Thank you. We appreciate your comments and preparation that you've put into them.

Senator Crapo, you were next coming, so let's hear from you and then from Senator Boxer.

SEN. MICHAEL D. CRAPO (R-ID): Thank you, Mr. Chairman. In the interest of time, I will not make an extensive opening statement.

I do associate myself with the comments of Senator Inhofe and the concerns that he has raised. But I look forward as getting as quickly as we can to the witnesses, so I will forego any further statement.

SEN. BENNETT: Thank you very much.

Senator Boxer.

SEN. BARBARA BOXER (D-CA): Mr. Chairman, do you want to make yours? I'm not in a rush. I'm going to be here the entire time.

SEN. BENNETT: You're going to be here the entire time.

SEN. BOXER: Yes. This is a very important issue to me, so I'm happy hear you. As a matter of fact, I look forward to hearing your comments.

SEN. BENNETT: Well, thank you.

I have indicated to all of the concerned parties that have come before me on this issue -- committee members and committee staff, the various stakeholders and so on -- and my goal is to keep the hearing focused on the policy of how we dispose of FUSRAP wastes. There's a gap in the current regulatory statutes that needs to be address one way or the other. It does not to me make sense to have an artificial and arbitrary dividing line that is drawn by the regulators. And I think a risk analysis needs to be done to establish a standard that is protective of the public health and safety.

I agree that the primary goal should be public health and safety; the primary goal should not be some arbitrary regulatory decision. So I am opened to just about any kind of solution that makes sense and that is focused on public health safety. We should I think recognize that mildly radioactive wastes are different from other wastes. The Congress has made that decision, and the arbitrary dividing line that has resulted from the way that decision was made and the way it has been interpreted is the reason that we are here today. Waste streams that are hotter than the new standards should be disposed of at NRC licensed sites regardless of the year in which they were generated.

So I have prepared a written statement outlining these general goals, but these are my goals for the hearing. This is the way in which I'm approaching this, and I think it is the responsibility of this committee to focus on these goals and say our purpose here is to protect safety and to remove regulatory uncertainty. And if we go at it with those two as our goals, probably in that order, then I think we will have achieved our responsible goal here. And so that's really all the focus that I have.

Senator Boxer.

SEN. BOXER: Thank you, Mr. Chairman. I'm going to take my full five minutes. I want to thank you so much for requesting this hearing, and I want to thank Senator Smith because he, of course, gave us the go ahead to do it. I do agree with the general thrust of your comments, but I, perhaps, feel a little bit stronger about it, and I want to tell you why.

When I learned that the Corps had disposed of 2,200 tons of radioactive waste in an unlicensed hazardous waste facility in Buttonwillow, California, I was shocked. The facility sits atop aquifers that supply water to the central valley of California. And for those of you who don't know, that's the bread basket of California. And when I called the Corps, they told me "Senator, this waste is so safe, you could roll around in it." And that's a direct quote from the Corps' counsel.

What is this safe radioactive waste? And Senator Inhofe talked about his view. But I want to talk about what it is.

The radioactive waste dumped at Buttonwillow was uranium, thorium and radium. These radioactive materials can cause cancer, leukemia and genetic defects. They persist in the environment for millions and billions of years. Uranium 238, for example, has a half life of 4.5 billion years. So when Senator Bennett says this waste is a little hotter, he's right.

When I started looking into it, I found that the Corps sent this radioactive waste to Buttonwillow, even though Buttonwillow is not regulated by the Nuclear Regulatory Commission. The Corps does so under the FUSRAP, which is a formerly utilized site program. The program focuses on cleaning up old Manhattan project nuclear weapon facilities.

I also learned that when the program was managed by the Department of Energy it required that all wastes generated from clean ups had to go to NRC licensed facilities; and, of course, that's the policy issue that Senator Bennett refers to.

That was the policy of the United States of America as long as it ran the cleanup program -- as long as DOE ran it -- from 1974 to 1997. The DOE had this requirement because NRC licensed facilities are especially equipped to deal with radioactive waste. They're sited to guard against radioactive waste leaking into the environment. So if you look at the site in Utah or, for example, Washington State, you'll find that their sited to guard against radioactive waste leaking into the environment; they're not sited over aquifers, for example. They're monitored to catch leaks if they do occur. They're required to be monitored and managed into perpetuity to make sure the public health and environment are protected.

Now when the Corps took over the program in '97, it wrote to the NRC. The Corps asked the NRC whether it was required to disposed of the radioactive waste at an NRC facility. The NRC responded with an answer that is even more remarkable than the fact that the Corps dumped 2,200 tons of radioactive waste in an unlicensed California dump, which is remarkable in and of itself.

The NRC said that if the radioactive waste was generated before passage of the Uranium Mill Tailings Radiation Control Act of '78, the NRC would not regulate that waste. If the waste was generated after the passage of the act, NRC would require that the waste go to an NRC licensed facility.

The Buttonwillow waste, and indeed most of the radioactive waste resulting from FUSRAP clean ups, was generated before 1978. So according to the NRC answer to the Corps, the NRC would not require the Corps to dispose of this waste at a protective NRC licensed facility. If the NRC doesn't tell the Corps how to safely dispose of this radioactive waste, who does? The answer is no one.

Under the NRC interpretation of the law, it appears that no federal or state agency has the authority to require that the waste go to a licensed facility. According to the Corps, this NRC position means the Corps can send the waste wherever it chooses-- to hazardous waste facilities or even to regular landfills. Is there a difference between this pre- and post-1978 generated radioactive waste? Even if we take Senator Inhofe's point -- oh, it's not so dangerous -- is there a difference between the waste that was generated before and after? None, except its birthday. The radioactive waste is the same. It's just as harmful to people. It's just as harmful to the environment.

What's the NRC's justification for the result that identical wastes is protectively regulated in one case but not in the other? The NRC answers this question in its testimony. It says that it's not "unusual for similar radioactive materials to be regulated differently." They say, "This is the result of the fragmented statutory regime governing radioactive materials." So they're really laying it off on us-- bottom line. So that's why we felt -- Senator Bennett and I -- that this was a very important hearing because to me, that answer is a frightening answer because it means that during this period of time, before anyone was looking, we could have caused tremendous problems. It's not comforting to me. It's not comforting to the people of California, especially in Buttonwillow.

Now the Corps for its part assures me its actions in Buttonwillow are protective of public health in the environment. The Corps rejected my repeated request to remove the waste from California. I was promised that once, then we got a back off of the promise. And now they say this waste is too dangerous to move.

Now at first they told me I could roll around in it. I'm glad I didn't do that because now they're saying it's too dangerous to move. The story keeps changing. The Corps assures me its policy of disposing this waste is a good idea. When I ask the Corps for environmental public health studies, they can't give me anything because there are no studies. The Corps and the NRC reversed a long- standing DOE policy of disposing the waste at NRC facilities without so much as a single study, and I think that is just a very sad thing for the people of the United States of America to learn.

The citizens who would have to live each day near these facilities should be extensively involved in the siting process but not the way things are being done now. They don't even know anything about it. The Buttonwillow community and the other communities across the nation that could become dumping grounds for the Corps have no say as to whether their hazardous waste facility should be turned into radioactive waste dumps and have the Corps say, gee, we can't move it because now it's mixed with these other hazardous wastes, and it's very dangerous.

Well, it wasn't dangerous when they put it there; but suddenly it becomes dangerous when it's mixed with other wastes. And why on earth was it put there to mix with these other wastes? It happened through the back door in California. It happened at the hands of the federal government. And we have a solution to put this waste at a safe, NRC licensed facility, such as the one in Utah, the one in Washington State.

So you can see, Mr. Chairman, this has been a lot of frustration on my part. I think sneaking this kind of waste into a facility without the proper permits was a horrendous thing, then sitting on your hands doing nothing when you're caught at it, and now saying it's too dangerous to move.

I hope, Senator Crapo, you never have that problem in your state, and Senator Bennett, that you never have that problem in your state. And I hope we can find an answer here and stop this situation from continuing because I don't want to see other states suffer from this anxiety the way the people of California have. Thank you.

SEN. BENNETT: Thank you very much, Senator Boxer. We appreciate the passion with which you address this issue, and of course, to address most issues with a sense of determination to get to the bottom of things.

Let me remind the witnesses of the five-minute rule. We don't mean to be arbitrary about it, but, again, given the situation we find ourselves in, a number of senators have other places that they have to go. And we have a large number of witnesses.

I will place my full written statement in the record. And summarizing it again -- and it was summarized by Senator Boxer -- my problem is with the difference that comes solely on the basis of an arbitrary decision; and why science is influenced by a date that Congress has arbitrarily picked is something I don't quite understand. If everything is as safe as some of the studies to which Senator Inhofe referred would indicate, then none of it should be disposed in an NRC site. And if some of it belongs in an NRC site, then, obviously, all of it does to me.

But that's why we have the witnesses here to examine it. We appreciate the first panel that is with us-- Mr. Shapiro, Mr. Paperiello, Dr. Westphal. We'll go in that order. Please introduce yourselves and briefly what your background is. I won't do that from here, so we won't duplicate it in the interest of time. And we will hear from each of you in that order.

Mr. Shapiro.

MR. SHAPIRO: Thank you, Mr. Chairman. My name is Michael Shapiro, and I'm the deputy assistant administrator for Solid Waste and Emergency Response at the U.S. Environmental Protection Agency. I'm pleased to appear before you today on this panel with my colleagues from the Army Corps of Engineers and the Nuclear Regulatory Commission to address the subject of low-activity radioactive waste, and in particular, the material referred to as 11e.(2) byproduct material from FUSRAP sites.

My brief statement this morning will focus on EPA's role in the regulation of FUSRAP wastes under the Uranium Mill Tailings Radiation Control Act, UMTRCA, the Comprehensive Environmental Response Compensation and Liability Act, or Superfund, and the Resource Conservation and Recovery Act, RCRA.

As you'll hear more this morning, much of the waste at FUSRAP sites is byproduct material covered by Section 11e.(2) of the Atomic Energy Act. UMTRCA amended the Atomic Energy Act and gave EPA the regulatory responsibility to establish standards for the protection of public health, safety and the environment associated with the processing, transfer and disposal of 11e.(2) material. Under UMTRCA, the Nuclear Regulatory Commission is responsible for implementing and enforcing these regulations. The NRC has interpreted UMTRCA as limiting its jurisdiction to 11e.(2) waste generated at sites licensed during their operation and does not believe that it has regulatory jurisdiction over the pre '78 11e.(2) material.

Initially, as you pointed out, the Department of Energy was responsible for managing the FUSRAP Program. In the FY '98 Appropriations Bill, Congress transferred management of the FUSRAP Program to the U.S. Army Corps of Engineers.

The FY 2000 Energy and Water Development Appropriation Act states that the Corps shall undertake clean up of the remaining FUSRAP sites under CERCLA. Seven of these sites are on the Superfund National Priorities List, and at these seven sites EPA must approve the cleanup remedy selected by the Corps of Engineers. The Corps does not have to receive EPA approval of the remedy selected at non-NPL FUSRAP sites, but does have to follow the Superfund regulations, called the National Contingency Plan or the NCP.

In particular, EPA's off-site rule, which is part of the NCP, implements CERCLA requirement that waste removed from a site under Superfund must be sent to a facility that is in compliance with federal and state disposal requirements. To assure that waste removed under the NPC are disposed of in a way that protects human health in the environment, the party conducting the clean up should request a determination of the off-site rule from EPA to ensure that the disposal facility meets the requirements of that rule.

Finally, RCRA does not regulate 11e.(2) byproduct material. The RCRA statutory definition of solid waste specifically excludes source, special, nuclear and byproduct material as defined by the Atomic Energy Act. EPA regulations generally permit the disposal of nonhazardous waste and RCRA hazardous waste landfills; however, states may regulate the disposal of material that is not regulated as hazardous at the federal level, and some states have established their own standards for the disposal of certain federally unregulated materials, such as naturally occurring radioactive material, or NORM, or the pre-1978 FUSRAP material.

RCRA hazardous waste landfills are designed to be highly protected disposal facilities; and therefore, may be suitable for the disposal of certain low-activity radioactive waste. However, because of the special characteristics of radioactive materials which are not addressed by RCRA regulations, the permits for such facilities would have to have additional conditions to limit the radioactivity of waste that can be accepted in order to ensure adequate public protection, ensure appropriate monitoring, protection of ground water and provide for worker protection. In addition, EPA believes that adequate public participation is critical to achieving the public acceptance of these facilities.

In summary, several federal agencies share statutory authority to ensure the safe clean up and disposal of FUSRAP wastes. EPA is committed under the current scheme to work with its federal partners as well as with other stakeholders to assure that FUSRAP sites are cleaned up in an environmentally protective manner and that all of the applicable requirements for protection of human health and the environment are met.

Thank you for the opportunity to provide this statement, and I welcome any questions following our statements.

SEN. BENNETT: Thank you very much.

Dr. Paperiello.

MR. PAPERIELLO: Yes. I am the deputy executive director for Operations for Materials, Research and State Programs at the Nuclear Regulatory Commission. By education, I'm a nuclear physicist and I'm also a certified health physicist.

I'm here today to present the NRC's views on the management and disposal of low-level radioactive waste in the context of the FUSRAP program of the Army Corps of Engineers. Because the Uranium Mill Tailings Control Act does not direct the NRC to exercise regulatory authority over milling activities and facilities that were not subject to license at the time of UMTRCA's passage, the NRC has not regulated the disposal of mill tailings resulting from the FUSRAP program.

We believe legislation would be required to give us the authority to regulate pre-UMTRCA mill tailings in the FUSRAP program. And the Appropriations Committee's, and most recently the House of Appropriations Committee report on the Energy and Water Development Bill for Fiscal 2000, have clearly indicated the NRC is not intended to license the Corps' clean up of contaminated FUSRAP sites.

We're aware that someone is to regulate the disposal of FUSRAP mill tailings, and the arguments are based on the observation that pre-UMTRCA and post-UMTRCA materials are radiologically similar. However, -- and I will repeat -- it's not unusual for similar radioactive materials to be regulated differently.

Because it's raised the most concern, I'll focus on mill tailings FUSRAP material disposed of at non-NRC regulated facilities, in particular RCRA Subtitle C, Hazardous Waste Disposal Facilities.

Tailings typically have most of the uranium and thorium removed but still contained other radioactive elements in the decay chains for uranium and thorium, especially thorium 230 and radium. They also may contain hazardous chemicals used in the processing to extract uranium.

NRC requirements are based in part on EPA requirements similar to RCRA Subtitle C requirements. 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 the releases of hazardous and radioactive materials to the environment.

If we compare uranium mill tailings to other forms of comparable radioactive waste, the most similar is technologically enhanced, natural radioactive material or TENORM. This material whose radioactivity has been enhanced as a result of human intervention includes the same radioactive elements as mill tailings. TENORM includes coal ash, uranium mining overburden, mill tailings from the extraction of nonradioactive elements from ores -- and I would note that Buttonwillow is receiving this kind of radioactive material from Molly Corps (sp) -- pipe scale and sludges from oil and gas production and water treatment sludge.

The EPA reports that the TENORM volumes produced in the United States may exceed 1 billion tons a year. By comparison, low-level waste annual production is about 60,000 tons or one-ten thousandth as much TENORM. However, most low-level waste consist of considerably higher concentrations of reactor fission and activation products. Some low-level waste includes material contaminated with uranium or thorium. If uranium mill tailings were not defined as byproduct material by UMTRCA, they would be considered to be TENORM.

Mill tailings, low-level waste and TENORM can have significant overlap in the ranges of radioactivity contamination. From a risk perspective, all three containing uranium and thorium in the same ranges of concentrations are equivalent in risk. From a legal perspective, how they are to be disposed of varies.

TENORM, according to a recent National Academy of Sciences report is regulated in a regular fragmentary manner. We have not conducted a comprehensive review of TENORM disposal practices in the U.S. We are aware that some TENORM is disposed of in some RCRA Subtitle C hazardous waste facilities. Practices vary depending on the permit conditions for radioactive materials imposed by the state permitting agency and the radioactivity of the waste for disposal. The NRC is aware that several facilities have concentration limits of 2000 picocuries per gram on the material they receive. At least one has limits on worker exposure.

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 should be able to provide adequate protection for the public and the environment for TENORM and mill tailings types of material. It may be necessary to place limits on the radioactive contamination and concentration of the material disposed of in a RCRA facility to ensure worker protection or other safety concerns are adequately addressed. The sites that we know of that are accepting TENORM and FUSRAP material have such limits.

In addition, we recognize that long-term stability of RCRA sites is achieved somewhat differently than an NRC-licensed site. If Congress believes the NRC should regulate the disposal of pre-UMTRCA mill tailings in the FUSRAP program, the NRC is willing to assist in amending UMTRCA.

This completes my statement. I would be pleased to answer any questions from the committee.

SEN. BENNETT: Thank you very much.

Dr. Westphal.

MR. WESTPHAL: Good morning, Mr. Chairman, Senator Boxer, Senator Crapo.

My name is Joseph Westphal. I'm assistant secretary of the Army for Civil Works, and I thank you for the opportunity to testify today.

The Formerly Utilized Site Remedial Action Program -- FUSRAP -- as you know, was initiated in 1970 by the Department of Energy, and in 1997, the Congress transferred the clean up of the remaining 21 sites to the Army Corps of Engineers.

This morning, Mr. Chairman, I do have a couple of people sitting behind me who are in some ways more technically expert than I may be.

SEN. BENNETT: So do I.

MR. WESTPHAL: Pardon me?

SEN. BENNETT: So do I.

MR. WESTPHAL: Accompanying me is Ms. Julie Peterson, who is a U.S. Army Corps of Engineers health physicist from our Hazardous, Toxic and Radioactive Waste Center of Expertise in Omaha. Also with me is Captain Noel Simpson, a Corps assistant counsel for Environmental Restoration, Regulation and Compliance. And I've also asked Mr. Stephen Keefer, who represents the United States Army Audit Agency, to be available in the event you may have questions.

In this brief oral statement that I'll summarize very quickly, I want to just make a couple of points regarding the management and disposal of low-activity radioactive material under FUSRAP.

I believe that the Corps is managing the disposing of FUSRAP material in a manner that is fully protective of public health and the environment. Since assuming responsibility for FUSRAP in the fall of 1997, the Corps has accomplished a number of important milestones in the management of this program. Some examples are a seamless transition from the Department of Energy with no slippage in cleanup activities as a result of that transfer; partnerships with local communities, state and federal regulators; removal and safe disposal of about 324,000 cubic yards of material; completion of remedial activities at 3 of the 21 sites remaining to be completed and records of decision at 6 sites. However, there are two issues that have been raised regarding the Corps' management and disposal of FUSRAP material.

The first has to do with the regulatory status of FUSRAP material, and the second, of course, involves the use of hazardous waste disposal facilities for some FUSRAP materials, and specifically, as Senator Boxer pointed out, the Safety-Kleen facility near Buttonwillow, California.

I've addressed both of these in my complete statement, and Mr. Chairman, I ask that that be placed in the record.

SEN. BENNETT: Without objection.

MR. WESTPHAL: First, let me restate, that the Corps is disposing of FUSRAP material in a way which is fully protective of public health and the environment and which also ensures the safety of individuals working in the disposal area. The Corps has sought guidance from the NRC regarding the regulatory status of FUSRAP materials. The NRC has determined that certain FUSRAP materials do not fall under the NRC's regulatory jurisdiction.

On the matter of disposal, we believe that the Resource Conservation and Recovery Act -- RCRA -- Subtitle C, Hazardous Waste Materials Disposal Facilities, do provide for the safe and protective disposal of some FUSRAP material.

RCRA Subtitle C disposal facilities are hazardous waste facilities which are designed and constructed to protect the environment from a variety of hazardous materials. These facilities all have designs and operating plans that include liners, leachate collection systems, surface and groundwater monitoring, enforceable worker protection standards, perimeter security, emergency response plans, eventual caps upon unit closure and long-term maintenance and land-use restrictions.

States or EPA issue permits for these facilities only after notice and public comment, including notice and comment on any permit provision dealing with radioactive materials. They are located in geographic areas considered appropriate for disposal of hazardous waste due in part to low precipitation and very deep sub-surface intervals to groundwater. The same protective features will also protect public health and the environment from FUSRAP materials.

FUSRAP materials are not more likely to migrate off site than any other hazardous material. Additionally, there are materials at Subtitle C facilities that remain hazardous forever. Furthermore, state regulators of such facilities may require additional protective features of safe handling of radioactive materials as a condition for allowing the facility to accept radioactive materials.

The Corps has only made limited use of RCRA Subtitle C disposal facilities for the disposal of FUSRAP material that are not regulated under the Atomic Energy Act by the Nuclear Regulatory Commission. Although the Corps estimates that as much as 80 percent of FUSRAP materials are not regulated by NRC, to date the Corps has utilized Subtitle C disposal facilities for approximately 20 percent of this material.

The majority of the material disposed as Subtitle C facilities came from interim storage piles at the Middlesex, New Jersey site and was disposed at the Envirosafe of Idaho facility. All materials shipped to Subtitle C facilities were well below their acceptance threshold. For example, while Envirosafe of Idaho accepts materials with an average activity level of up to 355 picocuries per gram, the material that the Corps shipped to Envirosafe from one of the piles at Middlesex had an average activity level of only 18 picocuries per gram.

Similarly, the building debris which the Corps disposed of at Safety-Kleen facility near Buttonwillow, California had an average activity level of only 335 picocuries per gram, although Safety-Kleen is permitted to accept material with an average activity level of up to 2,000 picocuries per gram.

We have all learned an important lesson from the controversy which resulted from the Corps' use of Safety-Kleen facility. Better communications with the regulators of FUSRAP disposal facility are important as communications are with regulators responsible for how FUSRAP sites are remediated. As a result, I have directed the U.S. Army Corps of Engineers to immediately establish a policy requiring the written concurrence of the regulatory agencies responsible for overseeing the disposal sites operation stating that the proposed disposal is consistent with applicable regulations and license or permits.

In the same vein, I have asked the Army Audit Agency to investigate all aspects of the Corps' use of the Buttonwillow facility for the disposal of demolition debris from Building 30 in New York. I expect that this audit will help us determine how and where we can improve in the management of this process. However, I can share with you that the tentative conclusions reached by the Army Audit Agency are that the Corps was in full compliance with all applicable laws and regulations and acted responsibly in protecting overall human health and safety in the environment.

And Mr. Chairman, I'll provide you and the committee members a copy of the final report as soon as it's available; and I think it will be available within about a month.

SEN. BENNETT: Thank you.

In a way, I'm regretting now that we scheduled as many witnesses as we did because I think we could spend the next hour going through the testimony of the three of you. Let me comment and summarize what I hear.

Number one, if a member of the public who had no idea what any of the acronyms mean had tuned in to this hearing, he or she would be completely baffled. The second thing that would come through to such an uninitiated hearer would be that basically nobody is responsible. EPA says, gee, it's not our responsibility, NRC says, we're prohibited, the Army Corps says, well, we're doing the best we can, and we're acting responsibly more or less on a case-by-case basis. There's a suggestion that the Appropriations Committee is involved. I am an appropriator and have talked to Senator Domenici. He says he wants the Authorizing Committee to deal with it.

Pretty soon there are a whole bunch of chairs, and this thing is falling between all of the chairs, and nobody seems to be putting his arm around it. So that's what we're trying to do in this hearing.

Now, let me go to this chart for just a minute because I find that very useful, and maybe I'm misinterpreting it. But let me just walk through it from my lack of scientific understanding and see if I understand what the chart is saying.

The first item up there says soil. I think that means that Senator Boxer could roll around in that without too much difficulty.

Is that a safe summary of what that first one means?

MR. PAPERIELLO: (Off mike.)

SEN. BENNETT: Most people would agree to that. Okay.

Now the second one, byproduct material is riskier than soil.

Would you still think she could roll around in that even though it's a little riskier than soil?

SEN. BOXER: Mr. Chairman, this is getting very personal.

SEN. BENNETT: I understand. All right, I'll roll around in it.

SEN. BOXER: If we just take turns. Senator Crapo can roll around the next one.

SEN. BENNETT: It's farther out on the chart.

MR. PAPERIELLO: It's higher.

SEN. BENNETT: How dangerous is it? I recognize that things can be higher --

MR. PAPERIELLO: Senator, it depends on the duration of the contact. If you walked over -- and I have stood on mill tailings piles -- it's a small amount of radiation; I get more by flying across the country. But remember, the reason for UMTRCA is in Grand Junction, Colorado, people used it as fill to build their houses on, and you would not want to lie in it for 365 days a year. So it's relative. You can handle much more -- and people do -- highly radioactive material, but with time, distance and shielding, you can keep the dose low. So it's a degree of protection.

SEN. BENNETT: All right. That's helpful.

Now you get to the third one which is the farthest one. It goes all the way over to the threshold of spent reactor fuel.

MR. PAPERIELLO: Yes, sir.

SEN. BENNETT: And isn't that what we're talking about, is that third line, low-level waste?

MR. PAPERIELLO: Again, as you can see, it has a large range, and it depends on the legal definition.

Once material becomes low-level waste, it can never unbecome low- level waste regardless of concentration. And, obviously, some low- level waste is extremely low and some is very high. That range is over 10 million in concentration. Whether we like it or not, law puts different material in different boxes. TENORM can be the exact same elements as 11e.(2) byproduct material or low-level waste, and it is not regulated by the federal government.

SEN. BENNETT: Well, all right. I won't go down through the rest of the chart. But you've just made the point that I think ought to be the point of these hearings, which is inadvertently or through neglect or ignorance -- whatever -- Congress has put labels that do not conform with the scientific realities. And the regulators are responding to the labels, as they should, as they're required to, and the science is different.

Is that a fair summary of where we are?

MR. PAPERIELLO: Yes, sir.

SEN. BENNETT: Okay. I think that summarizes why it's improper for us to hold these hearings because I would like at the end of the day to have the regulations match the science. And if indeed the science says this material is safe, I'm perfectly happy to have it taken to a nonregulated facility. And if the science says this material is not safe, then I want it in an NRC facility. And that seems to me to be the criteria that we should be trying to achieve here.

Dr. Westphal?

MR. WESTPHAL: Mr. Chairman, let me perhaps put it in a little bit of perspective here.

In these particular sites, which were sites of work on the Manhattan project, the sites were cleaned up back in the 1946 era and beyond according to standards that were in effect at that time. Later on, DOE came in and did further clean up of these sites. So the really hot, high-level radiation was not present anymore, and these sites in some cases were being used for other purposes.

We continue now to continue clean what is remaining there; and what is remaining I assume is the 11e.(2) byproduct. Some of that material is classified under that label. And that material, the Corps would go in as they did at the site in New York and take samples. Now it took in this particular case 26 samples, but there were literally thousands of samples taken before then by DOE and by those agencies responsible for clean up right after the Manhattan project seized its work.

It took those 26 samples and it determined that the average range was 365 picocurie per gram. There was one sample that was higher than 2,000. And based on that average, and based on guidance from NRC and discussions with EPA, that material can then be transported -- it met very stringent DOT regulations for the transporting of the material -- and sent to a RCRA site that was permitted to accept that material but could not accept material beyond an average of 2000 picocuries.

Now, the Corps has also cleaned up sites where the characteristics are much higher than those averages I just listed, and in those cases those materials have been sent to Envirocare in Utah.

SEN. BENNETT: Senator Crapo.

SEN. CRAPO: Thank you very much, Mr. Chairman. Following up with regard to the chart for just a moment, is there any way to translate that chart into what we're talking about in terms of picocuries?

MR. WESTPHAL: One is (off mike.)

SEN. CRAPO: You said 1 is about 20 picocuries per gram? 10 picocuries. So 10 would be a 100 picocuries per gram, and 102 would be a 1,000.

If you look at line 2, the 11e.(2) byproduct material, the maximum that could be contained in that material would be what? About 1,000?

MR. PAPERIELLO: Jim said he's looked at the documented concentrations, and the range that he shows is what he could find in documentation.

In my mind -- I asked him this question before the hearing -- theoretically, it seems to me the Belgian Congo pitch blend ores that were used, I would have assumed were hotter, but I really don't know. Most of the ores in the United States have not been very radioactive.

SEN. CRAPO: But if we look at what you're showing by the chart there -- I realize you might have an example in some location that would vary, but if you look at that chart, isn't line 2 -- the 11e.(2) isn't that what we're talking about in this hearing?

MR. PAPERIELLO: Right.

SEN. CRAPO: And the maximum on that line would be somewhere around 1,000 picocuries?

MR. PAPERIELLO: Five thousand. (Off mike.)

SEN. CRAPO: Oh, 5,000? Okay. So it would start somewhere down around 100 and go up to about 5,000? Is that how you read the chart?

And Dr. Westphal, you indicated that the shipments that were sent that you're talking about averaged what, 355?

MR. WESTPHAL: To the Safety-Kleen facility in California it was 335, and to Envirosafe in Idaho it was 355.

SEN. CRAPO: So we're talking about shipments that were well down in the lower end of the range of that second line there on the chart?

MR. WESTPHAL: And there was one sample that scored higher than 2,000.

SEN. CRAPO: Where is that sample?

MR. WESTPHAL: And again, we're talking averages, so the average 2,000 with 1 peaking above 2,000, the Buttonwillow facility is permitted to accept up to an average of 2,000. So it can accept some material that may have peaked higher, but on the average it can't be higher than 2,000. So it's well below that.

SEN. CRAPO: And as I look at the chart in terms of the comparative radioactivity that is shown for the various items listed there, with the exception of soil, it looks to me like every other category listed pretty much contains the entire range that is contained in the second line of the 11e.(2) byproduct material. In other words, the low-level waste, the TENORM, the exempt source material also all cover the same range of picocuries as does the 11e.(2) byproduct material. Is that accurate?

MR. PAPERIELLO: Yes. I made that point in my testimony; they overlap.

SEN. CRAPO: And would that overlap justify regulating each of those items in the same manner?

MR. PAPERIELLO: In my view as a health physicist, if it's the same element and the same concentration and has the same risk, the requirements ought to be the same. They're not. You could argue if it's the same element and it's the same concentration, it's got to be the same risk. Now there can be some differences with volumes, and volumes make a very important --

SEN. CRAPO: Let me make my point this way then.

If you look at soil, it overlaps low-level waste, TENORM and exempt source material.

MR. PAPERIELLO: Sure.

SEN. CRAPO: Should we regulate soil the same way that we regulate low-level waste?

MR. PAPERIELLO: No.

SEN. CRAPO: In other words, there's a difference between the lower end of the spectrum and the upper end of the spectrum.

MR. PAPERIELLO: Oh, yes.

SEN. CRAPO: So wouldn't it make sense that our regulatory system should focus on the material that is being regulated rather than whether there is an overlap in a chart showing radioactive relativity?

MR. PAPERIELLO: I would agree.

MR. WESTPHAL: Senator, may I?

SEN. CRAPO: Yes, Dr. Westphal?

MR. WESTPHAL: As I understand it -- and Dr. Paperiello, you can correct me on this if I'm wrong -- in these sites, the level of contamination that remains to date in some of these sites has had over time -- the hot stuff has been removed, but the stuff that remains has had an opportunity to mix with clean soils to be dispersed in the area. To some extent this material then is -- and I suppose maybe that's the reason that the NRC doesn't regulate this material, pre- 1978; post-1978 material hasn't had those opportunities to disperse in soils, and it's therefore more dangerous to public health and regulates that.

That's my understanding.

SEN. CRAPO: I note that my time has expired.

SEN. BENNETT: We'll have a second round on this.

SEN. CRAPO: Thank you.

SEN. BENNETT: Senator Boxer.

SEN. BOXER: Mr. Chairman, I'm going to probably need a couple rounds. I want to just state that Dr. Westphal keeps saying the Buttonwillow site was permitted to accept up 2,000 average curies. They were not permitted by the Department of Health in California, to with a letter I ask unanimous consent to put into the record, dated July 1 '99.

SEN. BENNETT: Without objection.

SEN. BOXER: Thank you.

"Dear General Ballard (sp), Commander, Headquarters U.S. Army Corps, the California Department of Health takes exception to the shipment and disposal of radioactive waste to the Safety-Kleen hazardous waste site."

It goes on to say, "For any facility not licensed or otherwise exempted by this department," meaning the health department, "to receive, store or dispose of any radioactive waste is a violation of California law and subject, if violated, to potential monetary penalties and criminal prosecution." They say, "For these reasons, the department hereby gives notice that it will not approve or authorize any shipment such as that which has recently occurred at Buttonwillow, and the department strenuously objects to the U.S. Army Corps transporting or authorizing transportation of radioactive waste to unlicensed facilities."

You have then subsequently told me you're not going to send it into the state unless the Department of Health signs off on it; is that correct?

MR. WESTPHAL: Yes. I have instructed the Corps not to send any material to any state where they don't have in writing that the state agencies -- whether there's one or in the case of California maybe two agencies -- have approved disposal of --

SEN. BOXER: Well, right now I'm interested in this situation.

The Department of Health never gave a permit, so when you talk about this being permitted, it is not correct. It was another agency, and never went through the Department of Health. I just wanted to confirm that you're not sending any more of this waste in there until and unless the Department of Health in California signs off on it, and I'll take it as a "yes."

Now when you talk about the testing of what is actually -- you said the Corps tests this material in the Manhattan project. You don't test the material; a contractor tests the material, is that correct, before it goes off?

MR. WESTPHAL: We have contractors that do that.

SEN. BOXER: But you don't have any independent tests, the contractor that cleans up the site that tells you what's in that waste; is that correct?

MR. WESTPHAL: As I understand it, yes, Senator.

SEN. BOXER: Well, that in and of itself, if we're looking at the law, I think is very, very important.

Mr. Paperiello, I think I heard you say in answer to Senator Crapo -- and I'm glad you said this -- that you didn't see the rationale for having two different policies. In other words, if it's about a certain type of waste, there ought to be one policy.

Is that what you said?

MR. PAPERIELLO: I said that if all radioactive material that was the same element and the same concentration ought to probably be regulated the same way. I recognize the legal system establishes distinction. So a physicist would say the same.

SEN. BOXER: Thank you because I think that's common sense, and I think that's what the chairman is trying to get at.

Can you tell me what specific criteria are applicable for worker protection at a FUSRAP site as opposed to an NRC-licensed facility, Dr. Paperiello? Can you tell us the difference in terms of the --

MR. PAPERIELLO: At an NRC-licensed facility all the workers would be occupational workers. They can be exposed up to 5 rem per year, but this is essentially with their consent -- informed consent because we require the training of the workers not only on how to protect themselves but what are the consequences of being exposed to radiation. The limits for anybody else -- members of the general public -- are only permitted to receive up to 100 millirem a year. And again, there are various ways of parsing that down, and we have done that. And under some very rare circumstances on an occasional basis and as a practical matter, a family of medical patients can receive up to --

SEN. BOXER: I'm asking you are there different requirements at an NRC-licensed facility from a hazardous waste facility?

MR. PAPERIELLO: As a hazardous waste facility, in our view the workers would be non-occupational workers and be limited to 100 millirem.

SEN. BOXER: Thank you.

I'm interested in liability, and I'll ask any of you to answer this. Who will clean up sites like Buttonwillow if radioactive waste leaks? We know that the pre-1978 that's covered under the other law we now have two laws here -- that the DOE was responsible. But since the NRC interpretation is that waste generated after '78 doesn't have to go to a licensed site, who's responsible?

For example, I don't know if you're aware of this, but Safety- Kleen that received this waste just declared bankruptcy. They're going busto. Good call.

Who is going to be responsible? The Corps? Are we going to come back to the Corps if there's a problem? Is the Department of Energy still on the hook? Is the EPA on the hook? Who's on the hook? Do any of the three of you know? Who will mitigate the problem? Who has the long-term liability for this waste?

MR. WESTPHAL: Well, Senator, first of all, the contracts do provide financial assurances as part of their contracting.

SEN. BOXER: Who's responsible?

MR. WESTPHAL: But in this case -- and I'll have to refer a little bit to EPA -- CERCLA is the law that guides the permitting of these facilities.

In the case of California, as I understand it, the EPA delegates that program -- the RCRA program is delegated to the states. So it's the state agency that is ultimately responsible.

SEN. BOXER: Oh. So the state agency is responsible even though you sent the waste when the appropriate state agency didn't give you a permit.

MR. WESTPHAL: Well, we have one bit of confusion here that I think --

SEN. BOXER: We have more than one bit.

MR. WESTPHAL: -- is appropriate for all of us to fix. We talk about licensing and we talk about permitting. And I was confused with that. I was using those words simultaneous, and I find out that you can't.

When I refer to Buttonwillow as a permitting facility, what I refer to is that the state has permitted this company to establish a landfill. The state had permitted the facility; that's what I'm referring to.

SEN. BOXER: Well, let me just say this, Mr. Chairman. Now I find out the state is responsible for this mistake, not surprisingly. I am absolutely appalled. And under the old law the DOE stood behind it.

The Corps isn't going to stand behind this. They're going to say it's a state problem, when we have a letter from the state saying they had absolutely no say in getting this material into California; that the Corps goofed. They sent it in without proper permits. And now the Corps says the state is responsible. This is one big mess. The contractor went busto; they're gone. And it's going to be a huge fight if there's a problem.

So if there's no other reason than this one -- the liability question -- we need to take another look. And I'll withhold my other questions.

MR. SHAPIRO: Senator Boxer, could I add some -- SEN. BENNETT: Sure, go ahead.

MR. SHAPIRO: Under the provisions of the state permit there normally are financial assurance requirements that would be in place to cover the clean up and closure of the facility.

SEN. BOXER: From who? From who?

MR. SHAPIRO: Those have to be provided by the company. As you've pointed out --

SEN. BOXER: That just went bankrupt.

MR. SHAPIRO: -- Safety-Kleen has filed for a Chapter 11 reorganization. They're still operating as a company attempting to reorganize.

If all else fails, the Superfund law is applicable. Superfund not only would provide the necessary authority for EPA to direct a clean up of the facility, but also to require compensation, not just from any remaining assets of the facility operator, if there are any, but also ultimately individuals or entities that sent waste to that facility for disposal, which would include the federal government if we contributed waste there, as well as a host of private companies that have sent waste to that facility.

So Superfund does provide broad authority to ultimately protect the public health and --

SEN. BOXER: So the federal government's responsible in your opinion?

MR. SHAPIRO: Ultimately, we would be if there were no other source of --

SEN. BOXER: And the Corps is wrong in saying the state's responsible?

MR. WESTPHAL: No, I was referring to the permitting of the facility itself. The state permits and provides the guidelines under which that facility will operate.

SEN. BOXER: I'm confused.

SEN. BENNETT: In either event, it's the taxpayer --

SEN. BOXER: Correct.

SEN. BENNETT: -- Senator, whether it's the state taxpayer or the federal taxpayer.

MR. SHAPIRO: Well, not under Superfund.

SEN. BENNETT: Well, the taxpayer supports Superfund.

MR. SHAPIRO: Only when the fund is used. Superfund allows the first take to be at the private sector.

SEN. BOXER: I know. Unfortunately, we have a company that's declared bankruptcy.

SEN. BENNETT: All right. Let me pursue another issue on a second round here.

Dr. Paperiello, there's been discussion about the average concentration of shipments. I'm advised that FUSRAP wastes from St. Louis sent an NRC-licensed site concentrations of thorium 230 as hot as 4,700 picocuries but in a shipment with an average concentration of 1,500. So if 2,000 was in fact the cut-off level, the shipment fell below that average; and yet there were concentrations as high as 4,700.

Can NRC perform its normal regulatory and enforcement responsibilities with respect to this material if it has no authority over it? Someone else has to decide how hot is this particular thing and should it be separated.

Doesn't the Corps have authority over it because it was pre-1978? And you could know about this situation I've just described but not be able to do anything about it? Isn't that a demonstration of how this is falling between chairs?

MR. PAPERIELLO: Well, if it was pre-UMTRCA material, it would not be under our jurisdiction. In terms of how you deal with the heterogenous distribution, which is quite common, it would depend an awful lot on how the receiving facility was permitted. And when a facility is permitted to receive material up to 2,000 picocuries per gram, whoever permits them, I don't know how they deal with the heterogeneity. I wish I could give you an answer. I just don't know what they have done about that.

SEN. BENNETT: Well, I think you could understand my concern as a layman here then. Let's say I'm the CEO of the facility that's receiving this material, and I'm told it has an average concentration of 1,500 picocuries, so you can take it. And if I understand your question properly, as the head of this facility, I'm responsible to say, wait a minute, I can't take this particular truckload, or carload or however it's shipped, because it's 4,700 picocuries. I should stop that at the gate and say it can't come in, but the rest of it can?

MR. PAPERIELLO: Senator, let me deal with this the way we would deal with things that we license, and we have to deal with heterogeneity and not homogenous.

If I have a permit to receive 2,000 picocuries per gram, I would have to have an understanding with my regulator how they would let me average. We have had a similar situation in our agency on disposal of radioactive gauges in low-level waste disposal sites where you have a very radioactive source this big in a gauge.

SEN. BENNETT: I'm familiar with that.

MR. PAPERIELLO: We have permitted averaging over the volume of a 55 gallon drum, but fundamentally you do a risk analysis and say, really, is the risk if this material were homogenized any different than a point source. And we've concluded that for like the gauges there is not a difference in risk. So that's why we permitted it.

SEN. BENNETT: Yes, I understand that. But that's easy to say, okay, we've got X number of gauges in this pile of materials.

As long as we make sure the gauges are not all lumped together in a single place, it's not a risk.

Is it my responsibility as the CEO of the receiving facility to say, I have to sort through this stuff as it comes in -- and we're not talking about gauges here -- to make sure that it is spread out throughout my facility in such a way as to take care of the risk?

Dr. Westphal, does the Army Corps require that of somebody who comes in and says, okay, it's 1,500 picocuries. Now you are responsible to make sure it doesn't aggregate so that one place where a worker or a leakage might occur it's 4,700 picocuries?

MR. WESTPHAL: I think I understand what you're getting at. I may ask Julie just to answer this question quickly. Because we were talking about how much more -- if you're permitted in a state to receive an average amount of 2,000, how much higher than that can it go? So if you have one sample that is much higher, what limits are there? And I think there's industry guidance on that.

MS. PETERSON: Well, not surprisingly, it's not an easy answer like most of the answers given today. The laws governing averaging, they don't exist; they are disposal facility-specific. A general rule of thumb that we use is the three times rule. That is there can be areas of elevated activity inside a single container. If that area of elevated activity is more than three times the acceptance criteria of the facility, in general that's considered unacceptable.

So, for example, in the case of Buttonwillow we have an acceptance criteria at 2,000 picocuries per gram total activity. That is the average. If we have an area of elevated activity that's greater than three times that -- greater than 6,000 picocuries per gram -- in general that's not considered acceptable.

But there aren't any rules out there on this. This is negotiated with the facility prior to shipment. It's negotiated with the facility's regulatory agency prior to shipment just as the sampling regime is.

SEN. BENNETT: I don't want to impose further on the time limit. Let me ask a question. If there's a quick answer, give it to me; if there's not, tell me, and we will pass it.

Let us say then at Buttonwillow you say the level is 2,000, and here comes a container that's 5,700, and that's pretty hot. Whose responsibility is it to deal with that 5,700? Should the Buttonwillow managers try to disperse that material and rearrange it in such a way that per container it then goes down closer to the average? Or can they just say, all right, as long as it's not over 6,000 we just bury it anywhere and it's done?

MS. PETERSON: No. The average activity in that container -- of the volume of the container -- could not exceed 2,000. If the average activity in the volume of that container exceeds a 2,000 picocuries per gram, average total activity, that container would be unacceptable. That facility has the ability to return that container to the waste generator.

SEN. BENNETT: Okay. I need to understand that a little better.

Senator Crapo.

SEN. CRAPO: Thank you.

Let me just try to clarify an issue that was discussed a little bit earlier, and that is the issue of financial responsibility to handle these matters as they come up.

And Mr. Shapiro, I think it's probably a question best answered by the EPA.

You indicated that there are financial assurances provided by the managers of the facilities. Could you describe what that means? Do they have to post bonds? What does it involve?

MR. SHAPIRO: There are various mechanisms that are permissible, and often states in implementing RCRA regulations -- again, this is dealing with hazardous waste, not radioactive materials per se -- impose additional conditions and requirements. But there could be things like trust funds, bonds, insurance provisions-- any of those can be used. In certain instances, self-insurance kinds of mechanisms can be used. So there are a variety of options available to the regulating agency and the facility that is being permitted.

SEN. CRAPO: But it's not just a promise that we'll pay in the future; it has to be a financially guaranteed promise, doesn't it?

MR. SHAPIRO: That's right.

SEN. CRAPO: So that if a company goes bankrupt, the guarantee is still in place, the insurance, the bond, or whatever it is, is still in place?

MR. SHAPIRO: That is true in general. I think with respect to Safety-Kleen -- and I don't know who the surety provider is for that particular Buttonwillow facility, but one of their principal providers of financial insurance was recently de-registered by the U.S. Treasury, which does not necessarily mean their bonds are no longer secure but does present a question to regulators as to whether all of the assets could be available for assurance if they are backed by that company.

SEN. CRAPO: Understood. But the point is, it's not just an unsecured promise.

MR. SHAPIRO: No, that's correct.

SEN. CRAPO: It's a very well and usually solemnly secured promise; isn't that correct?

MR. SHAPIRO: That's correct.

SEN. CRAPO: And then as a next line of responsibility, the company itself would be on the line under Superfund, wouldn't it?

MR. SHAPIRO: The company plus potentially companies that arrange for disposal of waste at that facility.

SEN. CRAPO: So under Superfund a responsible party would be potentially liable?

MR. SHAPIRO: That's correct.

SEN. CRAPO: And only at the point where a bond or a financial assurance failed, the managing company failed and all of its assets were unavailable and the assets of any other responsible parties were unavailable, would you even then look to the Superfund itself; is that correct?

MR. SHAPIRO: That's correct, although as you know, in some cases we use the Superfund as sort of initial money to get work going.

SEN. CRAPO: Understood. But even then you would seek recovery of those Superfund dollars, wouldn't you?

MR. SHAPIRO: Right. That's right.

SEN. CRAPO: In the remaining time that I have, let me get to what I think is the core question here.

We've talked a lot about whether similar wastes should be treated similarly or not; and as I see those charts, you could use that argument to the extreme and say we should regulate every farmer and every person that has a garden in America by making them qualify as one of these storage facilities.

But the point I think that we've got to ask ourselves here, are RCRA facilities adequately regulated to receive these FUSRAP materials that they are receiving under the law today and adequately protect the public health and the environment?

Mr. Shapiro, would you like to start?

MR. SHAPIRO: Well, as I indicated in my statement, we think that the design and operation of RCRA Subtitle C hazardous waste facilities are designed to provide stringent protection against public and worker exposure to hazardous materials. There are no federal EPA requirements dealing with radioactive materials for those facilities, so additional protection, which we think is warranted, would have to be provided by the state agency permitting that facility.

EPA is aware that in a number of cases state agencies, including California, have imposed additional conditions on specific RCRA facilities and provide limited ability for some of these facilities to accept low-activity radioactive materials. However, EPA has not reviewed formerly any of those state requirements, so we've not made our own determination about whether they are protective.

SEN. CRAPO: Dr. Paperiello.

MR. PAPERIELLO: Yes. It's our view that RCRA's facilities could probably receive a range of low-level radioactive material because, in fact, the design is very similar -- not completely the same -- as mill tailings sites. So, again, it's a question. As long as the range is limited, it could be safely disposed of.

SEN. CRAPO: Thank you.

Dr. Westphal.

MR. WESTPHAL: Well, as I understand it, the Department of Energy itself has disposed of this type of material in RCRA sites in the past. It's also my understanding that in many of these current sites they are already depositing other similar types of material that are coming from the oil and gas industry, for example. So I think EPA may be in the process of looking at the regulatory side of the nuclear part on these landfills; and perhaps that's appropriate, but it would affect more than just the FUSRAP program. It would affect other types of material that are currently going there.

Certainly what we have been doing, and what I think we're going to do more stringently in the path, and the Army Audit Agency is helping us identify ways in which to do this, is to improve our practices in which we assure that the facilities that material is going to are properly permitted by the appropriate state agencies and have all those safeguards for not only the disposal of material but also for the workers safeguards.

SEN. BENNETT: Senator Boxer.

SEN. BOXER: Mr. Chairman, I want to make a couple of points for the record, and then I'm going to ask a question about cost.

First of all, an EPA official, John Frisco (sp), who's an expert on this out in Region 9, disagrees with you, Dr. Paperiello. He says that an NRC-licensed facility is like an operating room versus a hazardous waste facility -- where some of the FUSRAP wastes are going as a butcher shop. So he certainly sees a heck of a difference between the facilities that the Corps is sending these materials to, and they go all the way up to spent reactor fuel level despite what might be said, as Senator Bennett pointed out-- the difference between these facilities.

Second point. Mr. Shapiro and Dr. Westphal, you may have given us a really exciting news on Superfund because my reading of the law in Section 101, Section 22, excludes Superfund from handling this kind of waste. So I hope you can direct me to the exact part of the law in Superfund that shows me Superfund is responsible for this kind of waste.

Do you have that information on you? Can you cite the law, please? Direct me, because I have the law here.

MR. SHAPIRO: I was just conferring with one of my staff. I think what you're pointing to is Title II, which excludes certain UMTRCA facilities, but that's not the facilities that are the subject of the FUSRAP program. The FUSRAP program facilities are subject to CERCLA.

SEN. BOXER: They are? Can you point to that? Not now. I need the exact, showing me in the law. Have they ever cleaned up a site that had nuclear waste on it? Can you cite those? What are those?

MR. SHAPIRO: Has the Superfund program ever?

SEN. BOXER: Yeah.

MR. SHAPIRO: Yes.

SEN. BOXER: Tell me what those are, low-level waste.

MR. SHAPIRO: I can provide you with a list after -- not low --

SEN. BOXER: I'm talking about a similar situation, a low-level waste; has the Superfund come in and bailed out the taxpayers with private sector funding, et cetera? I don't expect you to have it off the tip of your tongue, but when I read the law I don't see it the way you see it. So I need chapter and verse of where FUSRAP is covered by Superfund, number one; and number two, examples of where Superfund has cleaned up low-level nuclear waste.

Now my question goes to cost. Corps officials have testified, Dr. Westphal, that disposal of FUSRAP material in an NRC-licensed facility is "more expensive" by a magnitude of 2 to 10 times. That is not true. And I want to know when this gentleman made that testimony was he unaware of the fact that existing contracts between the Corps and NRC-licensed and hazardous waste facilities have a cost difference of $19 per cubic yard. That is essentially a minor cost differential when you look at the transportation issue.

So I'm curious as to why this is happening. Why are we being told that it's 2 to 10 times when we have exact numbers here that show it's less than 25 percent, and when you're adding transportation it's even less than that.

SEN. BENNETT: If you'll, Senator, my understanding is that it's between 10 and 15 percent increased cost.

SEN. BOXER: Ten to fifteen percent increased cost for all the safety of an operating room versus a butcher shop, to quote an EPA official.

MR. WESTPHAL: Well, Senator, I don't have those figures, and I will be glad to provide them to you for the record. I will tell you that in my involvement on this issue, after speaking with you, I have basically taken the attitude within my agency that we're going to deal with this issue first on the issue of safety and environmental protection and health effects, and we're going to assess that; and we're going to determine the economic impact after we do that.

SEN. BOXER: Fine, that's good. Take a look at your own contracts. That's how we got the number; we asked to see it. If we can look at your contracts and we can add up the difference, you can do it too.

The point I'm making is I'm glad to see you putting health first, but I also want to say to you that if you look at the numbers -- what the Corps testified to, 2 to 10 times more -- that was Corps chief counsel, Robert Anderson, maybe he's here, testified before the Subcommittee of the House Appropriations -- is incorrect. And so if you tell House members, who are fiscally concerned, that it's a 2 to 10 times more number, some people -- not you, Doctor, not I -- would say, well, the money has to play a role. What we're saying is, we've looked at specific bids from specific companies -- and you have the numbers -- and we don't see that difference.

I see that my time is up, and I would ask if I might put the rest of my questions in writing to Dr. Westphal and ask that I receive answers within a week or 10 days, if that's possible.

MR. WESTPHAL: Senator, may I finish my answer to the Senator's question, sir?

SEN. BENNETT: Sure.

MR. WESTPHAL: Senator Boxer, we know that, obviously, competition plays a factor in the cost, and there are more RCRA facilities than there are NRC-licensed facilities. So that's probably related to the answer that you got.

I have asked the AAA, as I mentioned in my statement, to do an assessment of the disposal of this material in the California site. But in addition to that, I came back a few weeks later and asked AAA the Army Audit Agency -- to also look at our contracting and business practices and to take a look to make sure the procedures and the processes and activities of the Corps are appropriate to the site. Now, the AAA is not capable of making determinations about the regulatory aspects of this material. They're not a bunch of scientists; they're auditors and accountants.

SEN. BOXER: Are they having public input, the AAA? That's not the Automobile Association of America, for the interest of the audience, it's the Army Audit Agency.

Are they taking public input?

MR. WESTPHAL: Well, they interview a lot of people involved in the project.

SEN. BOXER: No, the answer is they're not. I mean, I just need to know.

MR. WESTPHAL: No, there's no comment period. It's an independent --

SEN. BOXER: Thank you. I want to thank the panel. I still say, get rid of that waste in California because now there's no one for the folks to go to if there's a problem.

SEN. BENNETT: We thank you all, and we wish we had more time. If I might, I kind of conclude where I began.

The question of who regulates the facility if the material is pre-'78 is still very murky, at least in my mind. And all of these questions about safety and picocuries and levels are important, and it's worthwhile that we've spent the time we have talking about them.

But Dr. Paperiello as you said, from a scientific point of view, there is no difference whatsoever between pre-'78 waste and post-'78 waste, and we as a government have allowed that issue to fall between the stools. And I'm hoping, if not in this Congress, certainly in the next, we will come to grips with that and end up ultimately with a system that is based on sound science and that says we don't differentiate in an artificial way on the basis of dates how we handle material. We do, Dr. Westphal, what you say you are trying to do administratively, which is put health, safety and science first and not worry about when the waste was generated.

Unfortunately, we in the Congress have created this anomaly, and I think it means ultimately from this panel this morning that we in the Congress have got to step up to the responsibility of resolving it.

Thank you all for your testimony. I appreciate your time and the responses that you'll make to the written questions you receive.

We now go to the second panel. And we advise the people in the second panel that you will not be here as long, simply because we don't have the time.

Now, in the interest of time, we will as we did before, ask each of you to introduce yourself rather than my going through each of your history. Although we do note that Mr. Slesinger used to be a staffer of this committee. So we welcome you back home, if you will.

We'll go, again, in the order in which you're seated -- Dr. Scott, Mr. Adelman, Mr. Slesinger and Mr. Thompson -- and ask you each to observe the five-minute rule as we go along.

Dr. Scott.

DR. SCOTT: Thank you, Mr. Chairman. My name is Max Scott. I'm an adjunct associate professor of physics and astronomy and a system radiation safety officer at Louisiana State University. I hold a Bachelor of Science Degree from Texas A&M University and Master and Doctorate of Philosophy degree from Purdue University. I'm a certified health physicist and a fellow of the Health Physics Society. I've worked as an applied health physicist for over 39 years. For most of that time I've been involved with radiation safety issues related to naturally occurring radioactive material and material similar to the majority of FUSRAP wastes. The views I express today are solely mine.

Mention Three Mile Island or Cherynoybl and most everyone can identify. Mention Texas City, and most likely people will identify a city in Texas. Over 500 people died in Texas City as a result of a ship that exploded which was loaded with ammonium nitrate; yet, we routinely ammonium nitrate.

I do not mean to belittle Three Mile Island or Cherynoybl but to emphasize the fact that there are risks in all human endeavors. For reasons that are not clear to me, anything associated with radiation appears to be reported more frequently and more intensely than other real or potential hazards. Such reporting has engendered an undue fear of radiation and the potential health effects of the exposure to radiation.

I believe that we need to protect and provide for a safe environment and provide the degree of protection commensurately with the scientifically-defined risk, not some perceived or extrapolated risk. My goal today is to attempt to set up what I feel are reasonable approaches for the disposal of NORM waste and most FUSRAP wastes.

The alpha particle that is emitted when an atom of internally deposited radium 226 decays does not know whether the radium atom originated in water treatment plant waste, a phosphogypsum stack, a FUSRAP site or scale from petroleum production tubulars. If it has the potential to cause harm from one source, it has the potential to cause harm from all sources. NORM and most FUSRAP wastes can be treated in a similar manner.

As a general philosophy, I subscribe to the proposed EPA guidance on radiation protection of the public; however, from a practical standpoint I believe the National Council on Radiological Protection and Measurements have prescribed annual limits for man-made sources which are applicable for the use and the disposal of NORM and most FUSRAP wastes. That would be 1 millisieverts per year for continuing exposures and 5 millisieverts per year for infrequent exposures.

The current regulations covering the disposal of NORM waste and FUSRAP waste are not consistent. For example, Michigan allows bulk waste containing up to 50 picocuries per gram to be disposed of in tight tube, solid waste landfills. Uranium mill tailings containing unlimited quantities of radium 226 can be disposed of by burial. Typical quantities range up to a few hundred picocuries per gram.

The Environmental Protection Agency has published guidelines for the disposal of radium 226 and water treatment plant waste, whereby up to 2,000 picocuries per gram of radium 226 can be disposed of at facilities comparable to those developed under RCRA. The Corps of Engineers have proposed and the Nuclear Regulatory Commission has given tacit concurrence for the disposal of FUSRAP wastes in RCRA disposal facilities, those to be limited to 1 millisievert per year.

In my opinion, there are two approaches whereby NORM and most FUSRAP wastes can be disposed of so that the environment and the public are afforded adequate protection-- 1) disposal of wastes in Subtitle C and D RCRA facilities at concentrations such that the average dose to an individual member of the public does not exceed 1 millisievert per year with a maximum dose not to exceed 5 millisieverts per year. Guidance should be provided to assure that the dose estimates are made using reasonable and practical exposure scenarios; 2) use the EPA guidance for disposal of water treatment plant waste utilizing municipal landfills and RCRA type facilities.

I encourage you to draft and support legislation which will provide for methods for the disposal of NORM wastes and most FUSRAP wastes in a practical and uniform manner utilizing RCRA type facilities.

Thank you for the opportunity to express my views.

SEN. BENNETT: Thank you, sir.

Mr. Thompson.

MR. THOMPSON: Thank you, Senator. Thank you for the opportunity to appear before you.

I've represented the domestic uranium industry during the development of the Uranium Mill Tailings Control Act and all of the regulatory proceedings at EPA and NRC subsequent to that, and I currently represent probably a majority of the uranium recovery licensees. So I'm very familiar with the Uranium Recovery Program and 11e.(2) byproduct material.

I respectfully submit that the issues here have been somewhat obfuscated, and I regret to say that it is NRC that has obfuscated these issues in the responses to the Hill.

The issue here is not whether it's pre-1978 or not; the issue of whether something is byproduct material is determined by the definition of 11e.(2) byproduct material that was promulgated by Congress in the Uranium Mill Tailings Radiation Control Act. And it doesn't depend on the concentration of radium or other radionuclides in material or of the volume of material; it is based on a definition. Obviously, at the time the Mill Tailings Act was passed in 1978, all of the mill tailings that were in existence were pre-1978 mill tailings.

Let me refer you to page 1 of NRC's testimony. They say they were not directed to exercise regulatory authority over byproduct materials that existed prior to the Mill Tailings Act, certainly not at DOE sites because DOE as a successor to the Atomic Energy Commission, along with NRC, had authority and testified during the mill tailings hearings that it was going to clean up the FUSRAP sites.

The problem is that there's a leap here in NRC's logic, and that comes on page 6. NRC acknowledges that DOE is going to clean up the FUSRAP materials under its Atomic Energy Act authority. And on page 6, NRC says that, "These tailings-produced facilities, such as FUSRAP sites, not under NRC license at the time when they entered, have not been regulated by NRC based on the understanding NRC's authority does not extend to such facilities; and therefore, we can send them to a RCRA facility." There's a leap there that is not explained-- if the material is a 11e.(2) byproduct material, then it must go to an Atomic Energy Act-licensed facility.

Let me examine the record of NRC for just a moment.

In 1980, when NRC promulgated the regulations that are implementing UMTRCA, they included a provision, 40.2(b) that says, "The commission will regulate byproduct material as defined in this part that has located a site where milling operations are no longer active if such site is not covered by the Remedial Action Program of Title I of the Mill Tailings Act." That doesn't say NRC-licensed facility. In fact, if you read that, it probably looks to preserve the flexibility, if they found a site, that NRC could go in an require them to get a byproduct material license. They do that now. If there's a mineral production facility in a state that creates source material, NRC will come in and make them get a source material license.

Secondly, in a federal register notice in 1992, NRC stated in discussing FUSRAP wastes, "Government contracts were issued for thorium source material used in the Manhattan engineering district and early Atomic Energy Commission probes. Wastes resulting from that processing disposal at these FUSRAP sites would qualify as a 11e.(2) byproduct material."

DOE in EM-0233 in April 1995 in discussing FUSRAP materials says, waste types at FUSRAP sites, much of the material resulted from processing or the recovery of uranium and thorium. This waste is a byproduct material known as 11e.(2) as defined under the Uranium Mill Tailings Radiation Control Act of 1978.

Now if DOE has said it's 11e.(2) and NRC has said it's 11e.(2), why hasn't NRC addressed the issue of Section 81 of the Atomic Energy Act, which says, "that no person may possess, own, produce, transfer or receive 11e.(2) byproduct material without obtaining a license or authorization from NRC."

So if this material is, in fact, 11e.(2) byproduct material, if it isn't at a DOE site or taken to another DOE site, it has to be taken to an NRC-licensed facility. A laboratory that you send byproduct material to to analyze it cannot analyze a cup full of it unless it has a license.

Secondly, we submit -- this is the uranium recovery industry -- that Section 83 doesn't say anything about a temporal limitation on byproduct material. The definition of 11e.(2) byproduct material doesn't say anything about a temporal limitation. It merely says, if you have byproduct material now, you're going to have to do certain things with it in the future. NRC has not addressed those as we have raised them with them in a number of contexts.

If we're going to say now that risk of one is equal to the risk of the other, then we're going to throw these definitions out. Okay. If we want to throw the definitions out and start clean, that's one thing; but keep in mind that EPA and NRC developed this regulatory program based on their clear interpretation of the Mill Tailings Act and that they were supposed to be very conservative standards. You have a 1000-year design requirement, no active maintenance, and you have a mandatory governmental custodian under the Mill Tailings Act. Those are the significant differences from a RCRA facility.

Those cost lots of money. The United States government has appropriated and DOE has spent a billion-and-a-half dollars on Title I sites to close those sites in accordance with that 1000-year design criteria. Uranium mill tailings licensees under Title II have spent hundreds of millions and are in the process of spending hundreds of millions more to satisfy those design standards. So if we're going to throw it out and say you can just send it to a RCRA facility that has 30-year post-closure regulatory horizon, I think our people are going to want to come and look for some of their money back.

Thank you very much.

SEN. BENNETT: Thank you, sir.

Mr. Slesinger.

MR. SLESINGER: Thank you, Mr. Bennett, Senator Boxer.

My name is Scott Slesinger. I am vice president for Government Affairs of the Environmental Technology Council, a trade association that represents the leading companies involved in hazardous waste treatment, recycling and disposal in the U.S. and Canada. Our members operate 20 Subtitle C landfills in the U.S., three of which have been selected by the Corps to take low-activity, radioactive waste from the FUSRAP program.

Today I would like to address four issues. First and foremost, these landfills have been specifically sited, designed, constructed and permitted to dispose of a wide variety of low-activity wastes, often called NORM or naturally occurring radioactive material wastes, such as those produced during oil and geothermal expiration. The acceptance of low-activity waste at these facilities is not an after thought; these facilities was designed with this type of waste in mind.

At present in RCRA regulations these highly engineered and highly regulated landfills contain redundant detection and monitoring systems that have been proven so effective in protecting human health and the environment that they have become the gold standards for the world.

The primary concern of any RCRA landfill -- being just hazardous waste or one that takes low-activity radioactive waste -- is to prevent any possible contamination of ground water. RCRA landfill disposal cells are constructed with sophisticated liners and cap systems which include multiple layers of natural clay and synthetic liners supplemented by systems for removal of precipitation and for leak detection. All Subtitle C landfills have multiple systems that monitor and capture all leachates produced in the cells and pump it out for treatment.

These engineering controls are in addition to the environmental considerations that originally led to the siting of these three facilities in arid conditions with annual rainfall that is less than the annual evaporation.

As a result of this combination of careful siting, sophisticated design and construction and redundant monitoring and leak-detection systems, these facilities do not pose a threat to ground water. In fact, when NRC went to look at designing facilities, they were told by Congress to look at how RCRA facilities were designed for how they should look at NRC facilities.

Second. Look at the FUSRAP waste itself. This waste is radiologically similar to other low-activity waste that have been disposed of at RCRA facilities for more than a decade. Remember, the FUSRAP waste we are talking about is primarily soil, concrete rubble, lumber and asbestos installation wastes with low mobility. Much of the historic wastes disposed at these sites are actually higher in radioactivity than the FUSRAP wastes.

Third. Each of the landfills that receive FUSRAP waste have strict state limitations and a level of radioactivity they can take. These facilities cannot and do not want to take low-level radioactive waste that requires an NRC license. The permit limitations the states have imposed on these are conservative and are recognized and prepared by the Conference of Radiation Control directors, which has required since 1990 that wastes above 2,000 picocuries of uranium, thorium, radium and other NORM radionuclides should go to an NRC-licensed, low- level waste repository.

Furthermore, we understand that EPA in an unrelated rulemaking has completed a risk assessment comparing NRC-licensed, low-level disposal sites with RCRA Subtitle C facilities. Using very conservative estimates and a 10,000-year model, EPA's analysis showed at Subtitle C facilities and NRC-licensed, low-level waste disposal facilities are equally protected, at least for the isotopes and the radiation levels allotted in our RCRA permits for FUSRAP wastes.

A word about employee safety. Employees of RCRA Subtitle C facilities are fully protected by specific safety, training and health monitoring standards established by OSHA for hazardous waste operation and includes specific standards for protecting workers from exposure to radiation hazards.

Worker protection elements include personal therthometers (ph), medical surveillance of all field personnel, mandatory use of respirators to protect against the inhalation of alpha particle, NORM training with annual updates and monitoring of all NORM-related receiving and disposal operations using three different types of hand- held radiation monitors.

I would like to respond to one point from before, and hopefully in the questions and answers I'll have time for more.

Safety-Kleen -- one our facilities, and they have been mentioned this morning -- has filed for Chapter 11 protection to reorganize the company's finances. It's important to remember that Safety-Kleen's financial assurances for closure and post-closure of the Buttonwillow facility remains in place and in force, and that the employees are still serving their customers, all of whom send their wastes to our facilities to protect them from Superfund. Most of our wastes that we get come to our site because we will let our customers know that their wastes will be properly handled. That is not changing at Safety- Kleen, even though they're going through reorganization.

Mr. Chairman, thank you for the opportunity to present our views, and we look forward to your questions.

SEN. BENNETT: Thank you, sir.

Mr. Adelman.

MR. ADELMAN: First, let me thank the committee for giving me the opportunity to testify today.

My name is David Adelman. I'm a staff attorney and scientist with the Natural Resources Defense Council based in Washington, D.C. I have a Ph.D. in chemical physics from Stanford University and a J.D. also from Stanford Law School, and I'm a member of the Environmental Management Advisory Board for the Department of Energy.

I want to begin by just setting out the major points I want to make. First, regulation of radioactive material should not be contingent on the date on which it was generated. All FUSRAP radioactive material should be treated consistently by disposing of them in NRC-licensed facilities.

Second, it is established law that the definition of radioactive byproduct material adopted by Congress in 1978 extended the NRC's regulatory authority over all wastes resulting from the extraction or concentration of radioactive source materials, i.e., all FUSRAP wastes.

Third, under the NRC's reading of the law, no government entity has authority to regulate pre-1978 radioactive byproduct waste. State authority is preempted by the Atomic Energy Act, and the EPA cannot regulate it under the Resources Conservation Recovery Act.

As people have mentioned, FUSRAP began in 1974 to clean up Manhattan project sites, and involves removing and disposing of large quantities of hazardous and radioactive waste.

And one thing I'd like to say here is, currently the government is spending literally millions of dollars to clean up these sites to remove these hazardous and harmful materials. To claim that they're innocuous in some sense and at the same time to be spending large sums of money to clean up these facilities is a disconnect, to say the least.

The Corps took over the program in 1997 and estimates that there are about 2 million cubic yards of radioactive wastes at all sites it will remediate. So far, the Corps has disposed of approximately 2,200 tons of radioactive wastes at the Safety-Kleen facility in Buttonwillow, California, and another 150,000 tons at the Envirosafe facility in Grand View, Idaho. Both facilities only have RCRA permits.

The NRC acknowledges that FUSRAP waste is byproduct material under the AEA. It claims, however, because this waste was generated at unlicensed sites prior to 1978, disposal at a licensed facility is not required. This is a highly formalistic argument that makes no sense legally, practically or technically. As a basic matter of policy, regulation of radioactive waste should be based on its hazardous characteristics, not when it was generated.

Congress adopted a new definition of radioactive byproduct material to extend NRC's regulatory over all radioactive wastes generated in the course of a nuclear fuel cycle. The statute's references to active and inactive sites advents Congress' clear intent of the act applied to pre-1978 wastes. Furthermore, in the leading legal case, Kerr-McGee, the court found that the purpose of a 1978 revision was to close the regulatory gap for all uranium and thorium mill tailings not previously regulated. The governing case law is patently clear that all byproduct material is subject to NRC licensing unless it is managed by the Department of Energy.

Under the NRC's reading of UMTRCA, Congress intended the absurd result that no government entity would have the authority to regulate pre-1978 byproduct materials. As the Supreme Court has held, the AEA preempts states from exercising regulatory control over byproduct material while EPA is precluded from regulating such materials under RCRA.

It is inconceivable that Congress intended such a nonsensical result, namely, effectively precluding the regulation of radioactive material it has expressly found to pose significant threats to human health and the environment. The NRC's position is counter to basic common sense and technical reasoning. There is no basis to distinguish between pre-1978 FUSRAP waste and waste generated after 1978 whether legally or scientifically. This fundamental inconsistency prompted the conference of radiation control program directors formally to recommend that the NRC reverse its positions on this issue because it results in such waste being unregulated altogether and also criticized the core management of radioactive material.

Along with the absence of proper regulatory authority, disposing of radioactive waste at RCRA facilities raises significant environmental concerns, including inadequate monitoring and worker protection methods and regulations and far weaker long-term institutional measures to prevent future releases, and finally, failure to provide an adequate public participation process.

The NRC and the Corps are propounding a fundamentally irrational reading of the AEA solely to save the Corps some money allegedly.

Along with being contrary to established law basing regulatory decisions governing radioactive waste disposal fully on when the waste was generated elevates erroneous, legal rationalizing over substantive health and safety issues and regulatory consistency. For these and other reasons, Congress should clarify that UMTRCA requires all byproduct material to be disposed at properly licensed facilities.

Thank you very much.

SEN. BENNETT: Thank you. I have to leave to go to a conference committee where I'm the chairman of the Senate side. So Senator Crapo will be rejoining us in a moment, I understand.

Let me just ask the other three members of the panel -- Mr. Adelman has summarized, pretty dramatically, the regulatory situation saying Congress ought to clean this up, and the position of the NRC is you used the word "irrational?"

MR. ADELMAN: Yes.

SEN. BENNETT: Do the other three take exception to that?

MR. SLESINGER: I would like to make one comment or two comments.

First, we think that there is no logic to the '78 date; we agree. We think the Congress needs to re-look at the issue and essentially set a picocurie limit, not which one of those categories does it come in. That would make sense. We also think -- and we have a brief that's attached to our testimony -- that legally Congress knew what it was doing, and that it was logic, in 1978 when they made the distinction, but I don't think that's important today.

One thing that I do disagree with what Mr. Adelman said, and which I believe contradicts an EPA testimony and what all the states believe, and that is what's called omnibus authority under RCRA for the states to put any other conditions they want in their permit, including limiting the number of picocuries.

And so, I don't think there's a gap. I think the states have the authority and need to use that authority to allow and protect these things from being disposed anywhere.

SEN. BENNETT: Okay.

Any of the others, any quick comment?

MR. THOMPSON: I guess my view is, as I said, that NRC's position on this issue has been inconsistent. You can't say it's byproduct material, and then say it's not subject to the Atomic Energy Act. And if you want to say we ought to look at risk versus definitions, that's fine, you'd have to do that at RCRA too. You have listed wastes versus characteristic wastes. There may be no difference in risks, but they're treated differently. So it's fine to take another look at it. Just recognizing that NRC right now is inconsistent.

SEN. BENNETT: Thank you.

Dr. Scott.

MR. SCOTT: My only comment would be that there ought to be consistent -- Dr. Paperiello pointed out that if it's a hazard, it's a hazard, and to regulate it here and not there is ridiculous.

I would like to make one point concerning this chart up here. Most of the FUSRAP waste falls down on the lower end of the low-level waste. Low-level waste is a definition, not a measurement. And so to think that we're talking about FUSRAP and being way out to the right end is incorrect. Thank you.

SEN. BENNETT: Thank you for that clarification.

Senator Boxer.

SEN. BOXER: I think a point to be made, Dr. Scott, is one shipment of low-level waste may get you to that point, but if you keep getting more and more exposure -- clearly there's a definition here. You can't argue with that. You could say what you think, but the fact of the matter is, it would qualify as low level if it went all the way to the right line.

Let me just say a couple of things here. This whole idea of this artificial date -- and I have to say, I thought, Mr. Thompson, you made the best point about it, and you're from the uranium industry. You want the safest disposal. Your testimony bears tremendous weight with me because you're the ones that have to deal with it if it's a problem.

And this whole business about Superfund, Mr. Slesinger, let me give you a little heads up on this point if you're counting on Superfund bailing out some of your clients.

You should know that there are approximately 1,200 sites on the Superfund list, half have been cleaned up, but there as many as 1,400 other toxic waste sites that qualified for placement on the list but haven't been placed on the list yet. So just to let you know, changing this liability situation, if, in fact, Superfund does apply which our EPA friend is going to let us know because my reading of the law says it may not, but they're going to check it out. But even if it was a fact, that's relying on something that's big trouble. So I think we need to go back and look at the way we treated this.

But it reminds me, if you got sick in 1990, let's say, and there was suddenly a prescription drug that was available. And you said, okay, if you got sick after that date, you can get that good prescription drug, you get the best there is; but if you got sick before that date, you can't get that prescription drug.

Because to me you're looking at a difference here between handling of waste in one very safe way and another way that there were absolutely no government independent tests showing it's safe, Mr. Slesinger.

And you talked about your customers. Who are your customers? You got very excited about your customers. Who are your customers?

MR. SLESINGER: Our customers are most of the chemical companies in the United States, pharmaceutical companies, the Environmental Protection Agency where we get waste from Superfund sites, the Corps of course, and other people who use hazardous waste.

SEN. BOXER: Okay. Well, my customers are the people who live around these places, okay? They're my customers. They have absolutely no input into what happened at Buttonwillow, none at all. And I hope the company survives because if there's trouble, we're going after them. But they may not. You can go back in time -- I looked at a number of these sites -- a lot of your customers aren't around when the trouble starts. So I hope for the sake of the people who live in my state that the company does survive.

Now in your opinion, were the workers at Buttonwillow told they were receiving low-level nuclear waste there before it came?

MR. SLESINGER: They never received low level; they received low- activity radioactive --

SEN. BOXER: Were they ever told they were receiving low-activity nuclear waste? Because in my state they talk about low level, but okay, use your terms. Did they know they were getting some uranium?

What were the other things they were getting here? Uranium, radium, those are the two main ones.

Did they know that? The workers, were they told that?

MR. SLESINGER: They were because they've been receiving it from over a decade from the oil industry, which has been setting drill scales -- SEN. BOXER: Would you send me the documentation? Because we were told the workers were not told about this particular shipment.

MR. SLESINGER: I don't know if they were told about this particular shipment, but I will check with the company and see what I can find out for you.

SEN. BOXER: Please, send me that information.

MR. SLESINGER: The radioactive and the risk of the materials that came from the FUSRAP site were no different from the oil industry

SEN. BOXER: Then why did they have to go and get a permit if there's no difference?

MR. SLESINGER: Because in their permit -- since they've had the permit --

SEN. BOXER: They got another permit.

MR. SLESINGER: They had a permit. And I've always said that from the state they could take radioactive waste up to 2,000 picocuries.

SEN. BOXER: They got a permit from the Department of Toxic Substances. The problem they had was, they did not get one from the Department of Health. And the Department of Health in California has said, don't send it.

I mean, you sit here and say this waste is lovable and wonderful. I respect your view. I have to agree with the view of Mr. Adelman on the point, and I have to agree with Mr. Thompson, who says, look, we've done well with the program; there's no rationale to change it. But you have a different view based on, I'm sure, science.

MR. SLESINGER: What I'm saying --

SEN. BOXER: So let me finish my point.

MR. SLESINGER: Sure.

SEN. BOXER: But I'm telling you that the Department of Health said stop sending the stuff. They don't look at it the same way as oil. Maybe you do, and that's fine. But can you point to one study that's been done on low-level waste that shows exactly that it should be handled the way you suggest?

MR. SLESINGER: There's been a lot of studies on radioactive waste of the same isotopes and level of picocuries -- SEN. BOXER: Government study?

MR. SLESINGER: Yes.

SEN. BOXER: A government independent study? Can you direct me to it?

MR. SLESINGER: I said the risk assessment that EPA is just doing for its mixed waste rule looks at this issue.

But I want to agree with you, Senator Boxer. We don't say this stuff is safe and that you want to roll around in it.

SEN. BOXER: Oh, good.

MR. SLESINGER: It's dangerous. It needs to be properly handled. And it is just as dangerous as the oil industry waste. It needs to be handled exactly the same way. And if it's under 2,000 picocuries, our facilities are proper for that type of disposal.

SEN. BOXER: Well, Mr. Chairman, let me just say, maybe you read the testimony, but Mr. Thompson who's from the uranium industry, makes the point that there's absolutely no rationale for treating the waste differently by picking out a year. And I think that's where the chairman and I are coming down. And he feels that the system is working with the NRC-licensed facility. It bears a lot of weight because he's got a lot of the waste.

I wanted to thank the panels, because I know we're going to close up pretty soon.

We've had a disastrous experience in my state. It's quite clear that Senator Crapo has not had such an experience in his state. We have a situation where the people who live around the site are not happy with what has happened. They don't understand why all of a sudden they're being exposed to this, they don't want to roll around in it, and it was sent there without proper permits. And I'm just very hopeful that we can come up with some consistent policy here because it doesn't make sense to pick out an arbitrary date. We could do that in our life, and it just doesn't make sense. It's an arbitrary situation.

And again, relying on Superfund to come up and clean up the mess is a bad bet because the program itself is way behind, and I think that we had a much better set-up when we had the DOE rules. It just made sense. DOE stood behind it; they stand behind it. And we're going to have one big mess on our hands if we don't straighten this out.

So I look forward to working with Chairman Bennett on this, and I want to thank the entire panel. Whether I agree with you or not, I appreciate hearing your views. Thank you.

SEN. CRAPO: Thank you very much. And first of all, let me say to the panel, I apologize that I wasn't here to hear all of your testimony. I did have an opportunity to hear some of it on the TV screen in the back during an interview that I had to step out for.

I do have a couple of questions, and I want to follow along just on the rationale of whether the fact that a radioactive material has the same level of comparative radioactivity means that it should be regulated entirely the same.

And, Mr. Thompson, I haven't yet had a chance to read your testimony, although I will, but it's my understanding that you indicated with regard to -- and I'm looking at the chart still, and I'm assuming that what we're talking about is the 11e.(2) byproduct material. Am I correct there?

MR. THOMPSON: Yes.

SEN. CRAPO: If the 11e.(2) byproduct material is the same, are you saying that it's the same because it's the same level of comparative radioactivity?

MR. THOMPSON: What I'm saying is, that 11e.(2) byproduct is based on a definition rather than either a level of activity in it or the volume of the material. It's based on a definition that's in the Atomic Energy Act, and if you satisfy the definition, you're 11e.(2) byproduct material. There's no de minimis quantity; there's no de minimis concentration. There are NORM materials that contain radium concentrations that are virtually identical with 11e.(2) byproducts.

SEN. CRAPO: But they're defined differently in another federal statute.

MR. THOMPSON: Well, they're not defined as Atomic Energy Act materials; therefore, they're treated differently. On a risk basis, I would agree that they're the same type of materials.

SEN. CRAPO: And the same with what's called low-level waste on our chart there?

MR. THOMPSON: Many of them are exactly the same kinds of materials that are similar in terms of radioactive activity with the NORM waste and the NARM waste and things like that that aren't covered by the Atomic Energy Act; it's based on the definition.

SEN. CRAPO: So if we follow the rationale that if they're not distinguishable based on their radioactive risk, and they should be regulated the same, should we change the entire regulatory scheme that governs all of these wastes that are identified there on the chart, so that as you look at each level of waste with a level of radioactive risk -- and I assume we could create ranges -- then we should have an entirely new regulatory regime that evaluates them in terms of radioactive risk rather than whether they are TENORM or exempt-source material or low-level waste or 11e.(2) byproduct material?

MR. THOMPSON: I understand that Senator Bennett and Senator Inhofe have suggested that we ought to take a look at that, and I certainly wouldn't object to that. I wouldn't object to that at all. It seems to me you have to do this in the hazardous waste area as well because listed waste as opposed to characteristic hazardous waste in the chemical fields are based on definitions also, not on risk.

SEN. CRAPO: And the point here is that they're all based on definitions in different statutes.

MR. THOMPSON: Yes, sir.

SEN. CRAPO: And yet they all have certain characteristics that could be argued to be similar.

MR. THOMPSON: That could be regulated the same way. Yes, I would agree.

SEN. CRAPO: If we took that line of reasoning then, would it be correct to say that -- I assume nobody's going to suggest that we regulate soil --

MR. THOMPSON: No.

SEN. CRAPO: -- in this way; that we make every person that has a home, a garden, a farm, a plant or a place on earth get a permit so that they can exist on the soil. I don't think anybody's taking that position. So if that's true, would we take that segment which is identified as soil, and run it down the chart there and say that we would not want to regulate low-level waste, TENORM or exempt-source material that is down in the category of risk of soil?

MR. THOMPSON: Well, it wouldn't be TENORM if it was just soil; that's technologically --

SEN. CRAPO: Well, according to that chart there, there is some TENORM that has the same level of radioactive risk as soil.

MR. THOMPSON: But the difference is that the radiation levels are enhanced in TENORM through some industrial activity. But I would agree; you wouldn't regulate soil. Or you'd regulate farming because that's the largest -- farming creates more radon in the environment than any other single activity --

SEN. CRAPO: I've actually had regulators tell me that we should regulate farmers -- this is an air quality issue that they were talking to me about -- because their wheels kick up dust. And therefore, they should all be required to get an air quality permit.

MR. THOMPSON: Crazy.

SEN. CRAPO: So the point that I'm raising here is not entirely just an extreme point to make a case; there are people who would say this. So I want to make sure we all understand what we're talking about here.

Now, let's assume that we go beyond the soil level here. If we're going to start regulating in terms of comparing radioactive risk, that one category of low-level waste had a pretty broad band there.

Would you break that category up?

MR. THOMPSON: It is broken up in a sense. There are Class A, B and C wastes, and they depend on the activity levels, and you have more stringent requirements for the more radioactive wastes.

SEN. CRAPO: Okay. Then we would do the same thing for TENORM.

MR. THOMPSON: Yes. In fact, in 1983, EPA proposed to regulate, if you will, TENORM that exceeded 2,000 picocuries per gram by sending it to a low-level radioactive waste facility.

SEN. CRAPO: Instead of just the narrow proposal that I think Senator Bennett's talking about of changing the date for the 11e.(2) byproduct material, if we undertook a massive overhaul here, do you think that would be appropriate? I mean, should we do that if we look at this issue?

MR. THOMPSON: I would think it makes sense to look at an overhaul, base it on a risk-based. It's going to be a big project, but it makes sense on a risk-based --

SEN. CRAPO: Mr. Adelman, would you agree with that?

MR. ADELMAN: Environmentalists have argued for a long time about rationalizing this system of regulating radioactive materials. Setting up a risk-based system would be very complicated, and I think it would be certainly far superior to what we have right now.

One point to make though is, the comparison between the NORM and the 11e.(2) can just as easily be made between the 11e.(2) and the low-level waste. So in part what we have is a different baseline here. Mr. Slesinger's arguing, well, we should compare the 11e.(2) to the NORM and not regulate it. We would actually say that the NORM is actually the exception to the rule and probably more of a historical artifact. And that if we were reasonable we'd actually be regulating that, and that that would be where the consistency would come from.

SEN. CRAPO: I understand that. And I think the point that I'm trying to make is that the logical ending point of the argument that is being put forth here today in terms of consistency being the approach is a massive overhaul of the entire federal government's approach to regulation of radioactive material. And the question that I then come to as a result of that --

And I see my time's up. Would it be okay if I proceeded?

SEN. BOXER: Sure.

SEN. CRAPO: I like to be accommodating.

SEN. BOXER: I'm not rushing anywhere.

SEN. CRAPO: All right.

The question that brings me to then is, is all of this effort to obtain consistency an effort to achieve consistency for consistency sake or is there a policy objective we can achieve here? Namely, it would seem to me that the ultimate objective is public health, the environment and workers safety. And then the question is, is the system that we have up there with four basic different categories -- some of them with categories within categories -- which may not be internally consisted, viewed from a radioactive comparison perspective? Is this system that's not consistent in that perspective threatening the health, the environment or the workers safety of our people in America?

Mr. Slesinger?

MR. SLESINGER: I think that if we're going to rationalize it, what we would need to do is not put -- we're using 2,000 picocuries because that's what the state said. If we could find and we could trust the risk assessment to look at what the risk was, what the reasonable mismanagement scenarios were, we could set differentiations based on those numbers. And I think then you might want to cross across those lines and treat it based, again, on what the risk is.

Clearly, the higher risk things should be taken care of differently than things that are a lot less risky. And I think that would make a much more logical way than what the law has done, which has been based on if it was part of the nuclear energy cycle or not or if it was used in a nuclear weapon or not. It should be based on how hot is it, how dangerous is it; and if it's dangerous, we need to protect it more than if it's not as dangerous.

SEN. CRAPO: So in other words, looking at just the low-level line there, when you get clear out into the outer ranges of low-level waste, that's hotter and hotter and hotter waste. That should be regulated differently than the lower end of the scale for the same category of waste?

MR. SLESINGER: Again, that's correct.

SEN. CRAPO: Mr. Scott, would you like to comment?

MR. SCOTT: I'd like to make a couple of comments.

First, I agree with you. I think we ought to have the uniform set based on risk.

To give an example, Senator Boxer's concerned about the waste that went to California. Water treatment waste from water treatment plants can range as high as into the 30,000 picocuries per gram of radium 226, and it is completely unregulated, to the best of my knowledge.

SEN. CRAPO: Thirty thousand picocuries. It's not even on this chart here?

MR. SCOTT: It would be TENORM.

SEN. CRAPO: Okay.

MR. SCOTT: So I think your approach is the correct one. We should have a consistent set of limits commensurate with the hazard. Now, if it's a hazard, I don't care where it comes from, it ought to be regulated. But if it's not a hazard, it shouldn't be regulated just because it comes under some definition that made it 11e.(2) waste or whatever. But I emphasize that sometimes some of the regulatory agencies have put impractical scenarios on things, and they've ratcheted levels down where the risk of somebody actually getting hurt is small. I wish that you people would make it consistent, but make it a practical scenario.

SEN. CRAPO: You mean make it consistent and use common sense? (Laughter.) MR. SCOTT: Yes, common sense on how you say this is a hazard or it's not.

SEN. CRAPO: All right. Let me ask one last question then.

In that context, forgetting about all these other aspects of the chart, but just looking at the FUSRAP situation, is there a risk to the public health, the environment or workers safety in the distinction that is currently in the law between the pre- and post- 1978 waste? And I'll just any of you that. Please be brief because I've gone over.

Mr. Adelman?

MR. ADELMAN: I think there is two basic concerns that we have. One is that as it's defined right now they are currently disposing of the materials at facilities that already received some radioactive materials, and that mitigates some of our concerns about, for example, impacts on workers. But as it's defined now, that's not necessarily the case. They could send it literally to any RCRA site because you're defining the radioactive materials out of existence.

The second point I'd like to make -- and this goes to your broader question too -- I think you have to look at this in terms of the fact that the government, whether state or federal, is always contending with limited regulatory resources, and currently what we have right now, as NRC has admitted, is a very fragmentary regulatory system. And effectively what people are seeking here is to make an already fragmentary system where you're not regulating NORM and actually expanding that by including materials that ought to be regulated and are regulated if they had been generated after 1978.

So in terms of risk, I would say that given those limited resources and its fragmentary system, you're potentially increasing risk because of that.

SEN. CRAPO: Okay. Mr. Slesinger?

MR. SLESINGER: I think that all FUSRAP wastes, pre- and post- 1978, if it's less than 2,000 picocuries can be adequately and safety handled in Subtitle C landfills. You may be able to do a study that will show the number that would be safe could be 3,000, 4,000, 5,000. EPA has shown it's over 2,000. We would think that that's the cut off that we're interested in because our neighbors around our facilities were told when we built these facilities we were going to take certain hazardous waste and we were going to take radioactive waste up to this level. And we would not want to go back and tell them, oh, now, we're going to go up higher because some study said that's okay.

SEN. CRAPO: All right. Mr. Thompson?

MR. THOMPSON: Senator, first of all, we don't believe there is a distinction in the law between the pre-1978 and post-1978, but the distinction in addressing the risk of either low-level radioactive waste as defined under the Atomic Energy Act or 11e.(2) byproduct material as interpreted by EPA and NRC in developing regulatory programs is essentially in the long-term care aspect because of the long-life radionuclides like radium. And that is, the two requirements that are most important are, one, you have a 1,000-year design requirement for 11e.(2), 3 to 500 years for low-level radioactive waste depending upon the activity involved, and you have a mandatory government custodian in both cases. And those are things that are not applicable to either CERCLA or RCRA facilities.

SEN. CRAPO: Mr. Scott.

MR. SCOTT: I don't think there's a difference.

SEN. CRAPO: Fair enough.

Senator Boxer.

SEN. BOXER: If I could just follow up because I think your questions were very good.

Look, I'm known for talking straight from the shoulder, so I'm going to do it.

You have a situation where you have some economic interests that are in a little dispute over here, okay? You have the NRC-licensed facilities versus the hazardous waste facilities -- you represent them and they're fighting over some business here. All I care about -- and I know I speak for Senator Crapo -- is what's safe.

Now, Mr. Slesinger, I am stunned that you throw out this 2,000 curies as if it's some deep study that was made. Do you know where that comes from? The Department of Transportation of the federal government says, "If you carry 2,000 curies or more, you've got to put a plaque on your truck." That doesn't speak to bearing this stuff, maybe in facilities that you represent, as Safety-Kleen, sits over aquifers.

So just saying common sense is what is needed. I agree with that completely. And it says to me, common sense for the people to give them the protection they need. If it ain't broke, don't fix it.

We have a system that was put into place; it's run really well. Ask Mr. Thompson. He's a client of it. It works. He knows how it works. DOE stands behind it, the workers are told directly, they take certain precautions; it works. There are facilities that are willing to take it.

So from the standpoint of my people that I represent, I like that system. I'm very willing to look at the risks. And if you want to say X number of curies, that raises a lot of other issues I'd say to my friend because in the clean up of the Manhattan project there's a huge fight going on that the contractor didn't really study and measure how hot the waste was. So you go into a lot of other questions of credibility.

I am just -- you can tell because we've been, if you will, burned by the way the Corps dealt with this, shockingly, sending this stuff to a facility that didn't get the proper permits from the state, now refusing to move it out because they say it's too dangerous. Well, I figured if you said it was not dangerous when it went in, why is it dangerous now? And you know what incredibly their answer is? It got mixed up with that other hazardous waste site stuff in there, so it's really dangerous.

Excuse me? I thought you said it wasn't dangerous? Now you're telling me it's more dangerous because it's mixed up with this other non-nuclear waste. That is not an answer. You're telling me this stuff is more dangerous now in this mixed waste facility than it was when it went in.

So I've learned from a bad experience. I'm trying my best to tell my colleagues -- just like we have to with MTBE -- we got hit with it first -- don't go California's way -- and I know you're working with me on this -- we've got to get rid of that stuff. It's poisoned a huge amount of our water supply. And I don't want to see colleagues coming back saying, gee, this stuff went in, it now mixed with other hazardous waste, it's more dangerous, et cetera.

And so I think we have the answer in front of our nose. Keep it the way it was before. It's not that much more expensive. We've looked at the contracts. Make the uranium industry I think happier.

I would say, Mr. Chairman, I admit I came in here with a preconceived notion -- I admit that on the table -- because of the reaction over the Safety-Kleen site, but I believe the testimony that I've heard today from the industry that's most affected to an environmental group that doesn't represent any clients -- and I appreciate Dr. Scott's feeling, but do agree with him, we need uniformity clearly. I think everyone agrees there's no rhyme or reason to the 1978 treatment. And he would say, forget about it; everybody should be able to take the lowest levels. But at least we agree there ought to be uniformity.

My overriding concern is safety, safety, safety, safety, and that's how I conclude it. And I hope we can work together on this.

I have no more questions.

SEN. CRAPO: Well, thank you very much, Senator. And I believe we can work together. I agree with you that our common objective is safety of the workers and the public health and the environment and just making sure that we approach the issue properly.

We also want to thank the witnesses for their time and for their expertise here. I should tell you that we will keep the record open until the end of next week. You may receive questions from some of the senators who were not able to attend here, and we ask you to respond to them promptly.

Unless there's anything else, this hearing will be adjourned.

END

LOAD-DATE: July 27, 2000

Document 10 of 131.


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