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