Public Policy

Mr. Chairman and members of the subcommittee, my name is Joe Colvin. I am President and Chief Executive Officer of the Nuclear Energy Institute. The Institute coordinates public policy for the U.S. nuclear industry. We represent 275 member companies with a broad spectrum of interests, including every U.S. utility that operates a nuclear power plant, their suppliers, fuel fabrication facilities, architectural and engineering firms, labor unions and law firms, radiopharmaceutical companies, research laboratories, universities and international nuclear organizations.

Today I would like to discuss two matters of great importance to America's nuclear industry: (1) the continuing situation of EPA dual regulation of Nuclear Regulatory Commission (NRC) licensees, and (2) reforming the Federal Emergency Management Agency (FEMA) Radiological Emergency Preparedness Program.

Allow me to begin by expressing our industry's appreciation for your commitment to careful oversight of the Environmental Protection Agency (EPA), and, in particular, to the agency's administration of the National Priorities List. The nuclear industry is very appreciative of this subcommittee's recognition of the need for continued congressional oversight of federal regulatory funds. We join you in embracing the tenets of the White House regulatory reform effort that discourages the allocation of funding to agencies whose regulation has proven inconsistent or incompatible.

In 1998, the House Appropriations Committee adopted language in its report that specifically prohibited the EPA from spending funds to place Nuclear Regulatory Commission (NRC) licensees undergoing decommissioning and license termination on the EPA's National Priorities List, better known as the "Superfund List." However, the EPA simply continues to disregard that clear congressional directive to stop intruding in NRC activities. They do so, in spite of the subcommittee's expression of complete satisfaction with the high level of protection afforded to public health and safety by the NRC's site remediation regulations. Unfortunately, the EPA continues to waste public funds to challenge the NRC's authority to regulate its own licensees in the establishment of radiation protection limits at decommissioned nuclear sites.

The EPA's duplicative regulatory role regarding the radiological aspects of nuclear site decommissioning diverts industry time and resources away from the NRC's clear, consistent site cleanup standards which focus on protecting public health and safety. The EPA's refusal to accept the NRC's decommissioning standards for remediated sites makes industry compliance quite confusing and far more expensive without a significant increase in public health and safety. NRC regulations require plant licensees to collectively accrue $45 billion in funds to decommission nuclear plant sites. It would be financially imprudent for these licensees to spend accrued funds to pursue cleanup under a threat of being revisited by another federal agency on the same issues.

One thing is clear. If the EPA continues to intervene in the remediation of NRC-licensed sites, the agency's activities could inhibit the effective implementation of the time-tested NRC site remediation program and ultimately could hinder the safe, efficient cleanup of nuclear sites. We urge you to do all that you can to prevent dual regulation of the nuclear facilities.

Background
The Atomic Energy Act of 1954 gives the NRC responsibility to regulate the civilian uses of nuclear materials. Under this authority, the commission has successfully remediated more than 70 nuclear sites to a level that fully protects public health and safety. By comparison, CERCLA assigns the EPA primary responsibility to administer the remediation of contaminated sites included on the Superfund list. For years, this potentially confusing legislative language was inconsequential because EPA's policy was to defer to the NRC regarding NRC licensed facilities. Only under the direction of EPA Administrator Carol Browner has the less than clear delineation of responsibility resulted in the EPA pursuing duplicative and inconsistent regulatory policies regarding NRC licensees. Nuclear power plants are not alone in this duplicative regulatory environment. They are joined by medical facilities, universities with nuclear research programs, and radiopharmaceutical companies.

In 1992, the EPA agreed to defer remediation of NRC-licensed sites to the nuclear regulator. That interagency accord was consistent with NRC's mission under the Atomic Energy Act of 1954, to act as the exclusive regulator and standard-setter of certain radioactive materials. Based on the interagency agreement, the NRC alone established policy and guidelines to successfully regulate the site remediation and license termination for the more than 70 sites previously mentioned, on a case-by-case basis.

In 1997, the NRC formalized its approach by issuing a final rule that included a generic environmental impact statement. In addition to providing a clear regulatory approach, the final rule articulated specific radiation safety standards for remediation and license termination. The NRC stated that "the final rule will result in more efficient and consistent licensing actions related to the numerous and complex site decommissioning activities anticipated in the future."

The NRC adopted this rule after four years of extensive scientific study and public comment, during which NRC held more than a dozen major workshops and meetings on residual radiation standards and provided three separate requests for public comments. This broad level of public-participation produced more than 7,000 comments from a wide range of interests—including scientific and professional organizations—EPA and other federal agencies, state and local governments; Native Americans, NRC licensees, academic bodies, and civic and environmental organizations. The EPA actively participated in this process and was consulted by the NRC throughout its rulemaking.

NRC's four-year rulemaking process, and related scientific studies, led the agency to conclude that public health and safety is best protected by a regulation that sets a maximum limit on potential exposure to members of the public. The exposure limit from residual radiation at remediated sites is for all possible "dose pathways," such as air, soil, surface and ground water, and food products grown at the remediated site. The regulation also requires that a site-specific, cost-benefit analysis be performed by the licensee to identify actions to be taken to further remediate the site and reduce potential levels of exposure below the maximum limit.

The approach taken by NRC including a maximum radiation dose limit and a requirement to further reduce potential exposure to levels that are "as low as reasonably achievable (ALARA)," incorporates the recommendations of respected national and international scientific organizations and is consistent with regulatory standards adopted in other countries. However, this approach differs from that taken previously by the EPA. The EPA approach includes a maximum radiation dose limit, but does not include a requirement to further reduce exposure levels. EPA also supports a separate groundwater requirement that utilizes the maximum contaminant levels (MCLs) established by EPA under the Safe Drinking Water Act (SDWA).

Based primarily on the lack of a separate radiation standard for groundwater in the NRC rule, EPA Administrator Carol Browner in 1997 informed NRC Chairman Shirley Jackson that EPA "would be forced to reconsider its policy of exempting NRC sites" unless EPA's approach was incorporated into NRC's final rule.

Shortly before that correspondence, EPA pursued its rule for site cleanup standards that would have been generally applicable to all federal agencies, including the NRC. However, the EPA rule was rejected during an interagency review process, involving primarily EPA, NRC and the Energy Department, facilitated by the Office of Management and Budget. The EPA formally withdrew its proposed rulemaking in December 1996.

After substantial interaction with EPA—and despite continuing disagreement between the agencies on the regulatory approach to site remediation—the NRC issued its final rule in July 1997. NRC's rule has been applied to license termination decisions for its licensees.

For over two years, the EPA has continued to challenge NRC's regulatory program. In August 1997, the EPA issued a guidance memorandum to its regional offices that rejects the general acceptance of NRC's criteria under CERCLA, although the memorandum notes: "We expect that NRC's implementation of the [NRC] rule for license termination will result in cleanups within the Superfund risk range at the vast majority of NRC sites." EPA also has interacted with public interest groups and the media on the decommissioning of NRC-licensed facilities, expressing concerns about the NRC standard and regulatory approach. Most recently, the EPA has formally criticized NRC's regulatory process as part of a NRC licensing review and has requested technical information from a NRC licensee regarding its site remediation plans.

Through its duplicative actions, the EPA is diverting attention away from the NRC's clear, consistent site cleanup standards to protect public health and safety. Rather, the focus has shifted to EPA's refusal to accept the NRC's decommissioning standards for remediated sites. In the case of nuclear power plants, NRC regulations require plant licensees to collectively accrue $45 billion in funds to decommission these sites. It would be financially imprudent for these licensees to spend accrued funds to pursue cleanup under a threat of being revisited by another federal agency on the same issues.

Such EPA interactions have taken place despite congressional direction that the NRC site remediation rule fully protects public health and safety: "It has come to the [House Appropriations] Committee's attention that the [EPA] has recently proposed the reversal of its long-standing policy of deferring to the … NRC for cleanup of NRC-licensed sites. In the past, EPA has not placed sites that have been successfully remediated under the NRC on the National Priority List. The Committee is satisfied that the NRC has and will continue to remediate sites to a level that fully protects public health and safety, and believes that reversing this policy is unwarranted and not a good use of public or private funds. EPA is therefore directed to continue its long-standing policy on this matter with the NRC and spend no funds to place NRC-remediated sites on the NPL."

EPA's Interaction in Remediation of NRC-Licensed Sites is Duplicative, Inconsistent
EPA's continuing interactions in NRC's regulatory process reflect an inconsistent and duplicative regulatory approach and demonstrate a threat to list remediated sites on the National Priorities List even after an NRC has terminated a license and relinquished jurisdiction.

To that end, EPA's intervention has raised serious stakeholder concerns regarding the authority and finality of NRC licensing decisions; the potential of parties associated with affected sites for future liability; and the looming uncertainty regarding a site remediation's ultimate duration and costs. More importantly, EPA's involvement erodes stakeholder confidence in the integrity of federal regulatory review and oversight, which runs counter to the objectives of the administration for "reforming and making more efficient the regulatory process."

The EPA's resources should be devoted to high-priority cleanup activities under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). Yet, the agency continues to dilute its resources by extending CERCLA authority to nuclear sites already regulated effectively by the NRC. This defies the dictates of both common sense and sound public management.

Last year, the House Committee amplified its displeasure with EPA by pointing out that "any reversal of the long-standing policy of the EPA to defer to the NRC for cleanup of NRC-licensed sites is not in the public interest and is not a good use of public or private funds." The committee recognized that attempts at dual regulation by the EPA have created legitimate stakeholder concerns regarding the authority and finality of NRC licensing decisions, the duration and cost of site cleanup, and the potential future liability of parties associated with affected sites.

To resolve this ongoing problem, the committee encouraged the EPA and NRC to enter into a memorandum of understanding (MOU), which clarifies the circumstances for EPA's involvement at NRC sites when requested by the Commission. The agencies were directed to report back to the committee by May 1, 2000, on the MOU status.

Mr. Chairman, I regret to report to you today that the EPA is still involved in the decommissioning and cleanup of NRC-licensed sites, contrary to the guidance that the Congress has provided over the past three years. There has not been any substantive progress in developing this MOU, as requested by the House Committee more than six months ago.

Since the House Committee's advice that the EPA should defer to the NRC for cleanup of NRC-licensed sites, there have been a number of examples of ongoing involvement by the EPA at these facilities. Recently, the EPA has intervened in public meetings on decommissioning held at nuclear power stations, in meetings between reactor licensees and their state regulators and directly with the state legislature in one instance. They have also continued their direct involvement with NRC reactor licensees through meetings and requests for technical information of a radiological nature.

Earlier this year, the EPA issued a guidance memorandum to regional Superfund managers clarifying EPA's role under CERCLA at NRC-licensed facilities. In our view, the memorandum is simply a blueprint for continued dual regulation by the EPA.

As characterized by the EPA, the memorandum is intended to accomplish several goals:

• provide assurances to the public that NRC licenses are decommissioned in a manner that is protective of human health and the environment,
• describe EPA's national policy, and
• provide guidance to the EPA staff, and to the public and the regulated community.

Since a joint MOU has not been concluded between the agency and NRC, EPA said the memorandum should be used by the EPA regions as guidance for actions regarding the decommissioning of NRC-licensed sites. It appears that the EPA is blatantly and intentionally disregarding this Congress' repeated instructions.

The guidance sets out a roadmap for EPA staff to conduct "protectiveness evaluations of NRC decommissionings" and "evaluate the need for CERCLA response actions at NRC-licensed sites." EPA would undertake such actions when requested by any stakeholder, where "the decision as to whether such an evaluation is appropriate will generally be determined by the EPA region in which the facility is located."

The guidance includes step-by-step procedures for possible actions to be taken by EPA with regard to an NRC-licensed site. How EPA should conduct an analysis of NRC's proposed cleanup levels; how EPA should suggest practices that NRC licensees should follow; and how EPA should consider listing sites on the NPL after the completion of NRC decommissioning and termination of the license are examples of proposed actions.

What is not in the EPA guidance memorandum is acknowledgement that NRC is the lead agency for its licensees, constraint on EPA involvement at NRC sites when not requested by NRC, or any reference to EPA consulting or coordinating with the NRC. With such glaring omissions, this document, now serving as EPA policy on the agency's role regarding NRC-licensed sites, stands in direct conflict with the guidance provided by this House Appropriations Committee to the EPA.

The EPA and NRC have only recently attempted to resurrect a dialogue on a MOU to help resolve the issue of dual regulation. On February 17, the EPA sent NRC a letter to "address the Committee's direction that our two agencies work together on an MOU." The letter conveys a copy of the recently issued guidance memorandum, which reflects the same regulatory approaches proposed by EPA in a draft MOU rejected by the NRC in 1998. In parallel, the NRC sent a letter to EPA on February 23 that reportedly conveyed a proposed draft MOU similar to that rejected by EPA in 1997.

Mr. Chairman, more than two years after the first round of unsuccessful interaction, and six months after instruction from the House Appropriations Committee to proceed with reaching an MOU, there has been little progress by the two agencies toward resolving this issue.

Based on the record outlined in this testimony, we are skeptical that an MOU, even if concluded in the future between the EPA and NRC, will provide a lasting resolution to the issue of dual regulation. We note that the agencies entered into a similar MOU in 1992 , and the EPA has previously deferred to NRC as a matter of policy under CERCLA. But in fact, it is the breach of such agreements between the two agencies that forms the backdrop to the situation that exists today —inefficient and duplicative regulation.

In our view, an MOU cannot address the root cause of the issue. Provisions in CERCLA set the stage for conflicting and overlapping authority between the NRC and EPA, which inhibits the remediation of NRC-licensed sites in a safe, timely and economical manner. The industry believes that the ultimate resolution of this issue requires legislative action. However, we recognize that this committee is involved in the appropriation and oversight of expenditures of public funds, not in the authorization of statutory responsibilities of federal agencies. In that light, we respectfully offer several suggestions for consideration by the committee that may avoid costly duplication in site cleanup until such time as a legislative solution can be affected:

1. The committee should reconsider its previous report language regarding an MOU and provide more definitive direction and guidance as to what the MOU should address and when the MOU should be concluded.
2. The committee should consider initiating an independent investigation of EPA actions and expenditures of resources with regard to the previous direction of the committee.
3. The committee should continue the prohibition on EPA for using appropriated funds for dual regulation of NRC-licensed facilities.

Reforming the FEMA Radiological Emergency Preparedness Program
I would now like to address a separate topic affecting the nuclear energy industry that also falls under the jurisdiction of this subcommittee—the FEMA Radiological Emergency Preparedness (REP) Program.

There have been developments over the past several years affecting the REP program that should provide opportunities for enhancing program efficiencies and making fiscal improvements. However, associated reductions in program budgets and expenditures have not occurred.

Since 1998, Congress has authorized FEMA to asses and collect user fees directly from NRC licensees to fully fund the REP program, based on the costs incurred or obligated for both site-specific and generic services performed by FEMA staff or contractors. In 1996, FEMA initiated a strategic review of the REP program that was expected to optimize use of federal resources and enhance response capabilities of state and local jurisdictions. During this same period, the number of nuclear power plant sites that are covered by the REP program has decreased from 69 to 63 sites due to the shutdown and decommissioning of six sites. More recently, FEMA has undertaken the transition from use of National Laboratories resources to obtaining services from an outside source for evaluating emergency exercises at nuclear power plant sites.

These developments should reduce the need for funding and other resources to implement the REP program in an effective, efficient manner. Yet the budgets for fiscal year 1999 through 2001 have increased from $12.9 million to $14.9 million, an annual increase of 6 percent per year. The number of FEMA staff assigned to the REP program has remained essentially unchanged during this period, at about 90 full-time equivalent (FTE) staff. Since the number of nuclear power plant sites was reduced by 9 percent, one could reasonably expect a similar drop in the number of personnel needed to perform the job. This did not occur.

Mr. Chairman, we suggest that this year would be an appropriate time for the committee to make inquiries of FEMA regarding the reduction in the number of sites requiring agency activities and the REP program budget and staffing trends. We also suggest, in light of the transition to direct assessment and collection of user fees granted to FEMA by Congress, that the committee seek assurances that the fees are being properly and exclusively applied to the REP program budget.

Thank you Mr. Chairman for the opportunity to express NEI's positions with regard to these important issues.