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Testimony of Timothy Fields, Jr.


July 21, 1999


Good afternoon, Mr. Chairman, and Members of the Subcommittee. I am pleased to have the opportunity to appear before you to discuss the role of the Superfund program at facilities currently or previously licensed by the Nuclear Regulatory Commission (NRC).

Before I begin to address language in H.R. 2531, it is important to note that EPA expects that the NRC's implementation of its Radiological Criteria for License Termination ("decommissioning rule," see 62 FR 39058, July 21, 1997) will result in cleanups within the Superfund risk range at the vast majority of sites. For a small but important group of sites, however, I believe that the legislative provision being considered today would not provide assurances to the public that NRC licensees are decommissioning in a manner that is protective of human health and the environment.


Section 207 of H.R. 2531 is the portion of the bill that would amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). The Administration has already opposed legislative provisions similar to those in section 207. On September 3, 1997, former NRC Chairman Shirley Ann Jackson sent a letter to Senator John H. Chafee which proposed that the same legislative provisions that are in section 207 be included in legislation reauthorizing CERCLA. In a March 25, 1998 letter to Senator Joseph Lieberman, EPA stated the Administration's opposition to NRC's draft legislative language.


Section 101(14) of CERCLA defines radiation as a hazardous substance subject to actions conducted under the statute. In particular, radionuclides are designated generically as hazardous air pollutants by Clean Air Act (CAA) section 112, and CERCLA section 101(14)(E) defines the term "hazardous substance" to include CAA hazardous air pollutants.

CERCLA and the National Contingency Plan (NCP) do not differentiate risks caused by radioactive contaminants from those caused by non-radioactive contaminants. Remedial actions under CERCLA must be protective (i.e., generally within the risk range of 10-4 to 10-6) for all exposure pathways in all contaminated media (e.g., soil, ground water, surface water, sediment, air, biota1. Further, ground waters should be returned to beneficial reuse, which includes meeting Maximum Contaminant Levels (MCLs) for all contaminants including radionuclides within the ground water plume, where MCLs are relevant and appropriate for the site. It is this Administration's position that current or potential future sources of drinking water are a valued national resource and should be protected to levels suitable for drinking water.

EPA's CERCLA policy states that if a site cannot be cleaned up to a protective level (i.e., generally within the 10-4 to 10-6 risk range) for the "reasonably anticipated future land use" because it is not cost-effective or practicable, then a more restricted land use should be chosen that will meet a protective level. EPA does not generally expect that the future anticipated land use will be residential for most large NRC sites.


EPA anticipates that there will be a very small number of sites that will be affected by our differences of opinion with NRC on what constitutes protectiveness of human health and the environment. This is consistent with the December 1997 NRC Inspector General report that states, "NRC and EPA officials agree that a relatively small number of sites will not initially clean up to the CERCLA standards."


Since September 8, 1983, EPA has generally deferred listing on the National Priorities List (NPL) sites that are subject to NRC's corrective action authority because NRC's actions were generally believed to be consistent with the CERCLA requirement to protect human health and the environment2. However, as EPA indicated in the Federal Register notice announcing the policy of deferral to NRC, if EPA "later determines that sites which it has not listed as a matter of policy are not being properly responded to, the Agency will consider listing those sites on the NPL" (see 48 FR 10661). This remains EPA's position.

Even with EPA's policy of deferral to NRC, EPA has taken action at formerly or currently licensed NRC sites that posed a threat to human health or the environment. In some instances, EPA response actions have occurred in cooperation with NRC to address contamination not addressed by NRC, including non-radiological (chemical) contamination or off-site contamination. At other sites, EPA has taken action to address formerly licensed material that posed a threat to human health and the environment. Whenever possible, EPA attempts to work cooperatively with NRC to resolve site issues.

If the release of radionuclides into the environment from a facility is in complete compliance with a legally enforceable permit issued in accordance with the Atomic Energy Act (e.g., an NRC or NRC Agreement State license), such a release will be exempt from CERCLA liability provisions as a "federally permitted release" under CERCLA sections 101(10)(K) and 107(j) until after the license is terminated. If the release of radionuclides violates the terms of the license in any manner, however, CERCLA liability will exist for the licensed material even before the license is terminated.


EPA expects to continue to work cooperatively with NRC on a site-specific basis. We are concerned with the potential inefficiencies of this situation and the potential impediments to cleanup caused by the threat of dual regulation. EPA and NRC have exchanged draft Memoranda of Understanding (MOUs). EPA would like to enter into an MOU with NRC outlining consultation procedures for EPA to use in those rare cases where a site-specific application of NRC's decommissioning rule might result in a cleanup level that is not protective. EPA stands ready to work with NRC on the completion and implementation of an MOU with the goal of ensuring the selection of cost-effective cleanups that are protective of human health and the environment and that facilitate the beneficial reuse of properties formerly licensed by NRC.


EPA believes that the outstanding issues between EPA and NRC cleanup programs mainly involve issues of ground water remediation, overall cleanup goals, and methods of providing for restricted land uses when necessary to establish cost-effective cleanups goals. EPA is committed to using the full range of alternatives available to achieve cleanup of ground waters that are current or potential future sources of drinking water in a reasonable time period and to selecting cleanup goals that reflect reasonably anticipated land uses so that cleanups are protective of human health and the environment over the long term. EPA's experience with remediating Superfund sites has shown that these objectives are achievable with limitations on land use, and the use of institutional and engineering controls.

EPA believes that citizens should be protected within the NCP risk range (generally 10-4 to 10-6) and have ground waters restored to beneficial reuse where practicable, regardless of the type of contaminant. The Agency cannot support legislative initiatives that would hinder EPA's ability and responsibility to protect human health and the environment.

Mr. Chairman, thank you for this opportunity to address the Subcommittee. I would be pleased to answer any questions you or the other Members may have.

1 "Risk Assessment Guidance for Superfund: Volume 1 - Human Health Evaluation Manual (Part A)", EPA/540/1-89/002, December 1989.

2 EPA has the authority to choose not to respond to certain types of releases under CERCLA because existing regulatory or other authority under Federal statutes provides for an appropriate response. As a policy matter, EPA has generally chosen not to list releases of source, byproduct, or special nuclear material that is currently licensed by NRC. This general deferral policy never applied to facilities where NRC has terminated the license, or the current license is issued by a State pursuant to a delegation of authority from the NRC pursuant to section 274 of the Atomic Energy Act (42 U.S.C. 2021).


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