REGULATION OF NUCLEAR MATERIALS: Should National Defense and Other National Policies Override State Standards?

MARK C. SCHROEDER, Deputy General Counsel for Environmental Conservation and Legislation, U.S. Department of Energy

JOHN N. McMILLAN, Director, Division for Energy, Agriculture, & Natural Resources, Office of the Governor, State of South Carolina

DAN W. REICHER, Senior Staff Attorney, Natural Resources Defense Council

MARK C. SCHROEDER: Let me begin by putting in context the activities and mission of the U.S. Department of Energy. I will then review the current state of regulation of radionuclides and source, special nuclear, and by-product material, and will conclude with a discussion of the future directions at the Department.

Everyone would agree that the national defense and foreign policy have been exclusively in the federal domain, and that they typically do not admit of state intervention.

That was the context in which the Atomic Energy Act was adopted.¹ The Act, with subsequent amendments, provided for production of these materials through a government-owned industrial complex, therein creating a federal monopoly on the production of nuclear weapons and special nuclear materials.²

To suggest that there now is a state regulatory role is a dramatic departure from that perspective. What are the opportunities for state regulation of these materials? I will [22 ELR 10015] briefly review the relevant statutes that address a possible state role.

The first relevant statute is the Clean Water Act. The Act's role was circumscribed in 1976, with the definitive ruling from the Supreme Court in Train v. Colorado Public Interest Research Group.³ In that case, the Court held that the Clean Water Act did not provide for regulation of source, special nuclear, and by-product material.

Under CERCLA,⁴ EPA and DOE share joint jurisdiction over the release of hazardous substances that are mixed with these radioactive materials. This statute fails to provide for a state role, however.

In RCRA, we have only recently sorted out the ambiguities of regulation of radioactive material and hazardous waste. Only as late as about 1986 did DOE finally interpret how to reconcile the RCRA prohibition on regulation by way of exclusion of source, special nuclear, and by-product material from the definition of a solid waste with the state's delegated RCRA role and EPA's role in regulating solid and hazardous wastes.

DOE's current position on RCRA is that the Department of Energy retains jurisdiction over the radioactive constituents, while the delegated regulator retains jurisdiction over the hazardous waste portion of the waste. This position leads to debate in every cleanup agreement and permit decision, much of which centers on how to resolve cleanup questions and set appropriate cleanup timetables. Many of these cases involve materials for which methods for treating the so-called mixed waste is only now being developed.

For example, the Defense Waste Processing Facility in South Carolina will enable us to treat mixed waste in a manner acceptable to both EPA regulators and the Department of Energy. The facility will vitrify the liquid waste, putting it into glass logs destined for a high-level waste repository.

Finally, under the Clean Air Act, the U.S. EPA has declared radionuclides to be a hazardous air pollutant, and accordingly, regulated under the Air Act. As many of you probably are aware, the extent and reach of EPA regulations with respect to NRC-licensed facilities has caused controversy. The reach of EPA regulators over NRC facilities was debated extensively in the Senate's consideration of the Clean Air Act amendments, particularly the proposed amendment of Senator Simpson, which effectively would have precluded EPA and state regulation of radionuclide air emissions for NRC-licensed facilities and would have precluded state regulation of those facilities. Ultimately it was rejected, but another provision later was included that provides for a "grandfathering" of the EPA regulations that became final on March 15, 1990. These regulations do not exempt NRC-licensed and agreement state facilities.

EPA is revisiting the appropriateness of drafting regulations for such facilities and whether to cross-reference or adopt the NRC standards. Here, the issue is not whether or not the hazardous air pollutant (the radionuclide) should be regulated as a hazardous air pollutant but whether the cost and burden from dual regulation on NRC licensees, power plants, state-regulated facilities, hospitals, and research facilities are excessive and to be avoided.

The heart of the issue is that the original Simpson Amendment would have precluded state regulation by excluding any radionuclide emissions. The debate over the amendment turned on whether or not the states appropriately had a role in regulating radionuclide emissions and had reasonably exercised their authority in the past under the Clean Air Act.

At this point it is fair to say that any argument that the states lack a role in regulating these radioactive air pollutants would be rejected by both Houses. Henceforth the Energy Department will regulate concurrently with various state statutes.

To date, five states have promulgated regulations governing the emission of radionuclides. None of the statutes has yet been problematic for the Department. In fact, in applying the standard under which we operate our plants, the "as low as reasonably achievable" standards, for emissions of these constituents, we will fall well below the EPA's risk-based standards.

But interestingly enough, after the debate and vote in which the original Simpson proposal was rejected on the Senate floor, a trade weekly quoted a Senator from Nevada, a state with an interest in the waste end of the fuel cycle, as saying that this provides Nevada with the tool that it needs to further impede progress on this particular project.

Thus one must question whether it is appropriate for states to regulate these materials, in effect regulating national defense facilities.

This is a question with which we have only recently begun to grapple. I am not in a position to say that we can or cannot operate under state regulation. As is clear from DOE pronouncements, we are making every possible effort to work with the state regulators.

We also intend to work with EPA. We intend to do everything in our power to meet state and federal standards regulating hazardous waste as they apply to nuclear materials. But that will turn on whether or not the regulations are fair and even.

Will the standards be arbitrary? Will the states adopt standards regarding radionuclides equivalent to those we deal with at the federal level — risk-based standards that we are capable of meeting?

In Colorado, the water quality standards presently under debate provide for a measure of the radionuclides that is below naturally occurring levels of radioactivity. Such regulations are obviously aimed at the Rocky Flats facility outside Denver. If that is the kind of regulation we will have to face, we will not be able to comply.

This is not the preferred conclusion of the Department with regard to all state regulation.

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Where are we and where are we going? We find ourselves in a state of gross non-compliance, stemming from eight to ten years of environmental neglect in favor of production priorities.

Recent developments in state regulation, however, point to heightened state interest and involvement. What are DOE's goals and intentions with regard to this trend? Given the scope of the problem, we are seeking a national prioritization system that does not admit of fifty independent state regulatory regimes.

Two bills of particular interest are H.R. 1056 and S. 1140, which provide for a waiver of sovereign immunity from fines and penalties levied by the state regulators. There is concern that thesize of the fines and penalties could divert funds from ongoing cleanup activities that are the Department's priority.

More specifically, our concern is whether or not fifty state regulators will be allowed, or will be able, to use the ability to levy fines and penalties, to control the Department's priorities by being more or less aggressive than other state regulators.

The Department prefers an approach that provides a period of time in which to develop a prioritization scheme. Such a scheme would identify our worst problems — those that require immediate cleanup actions. This is important, because such cleanup takes approximately thirty years to complete.

We are working with the states to develop this strategy. Yet no statute requires them to respect a prioritization scheme.

Our experiences dealing with state regulators generally have been positive. Certain regulations can be unreasonable and unworkable, however. Only the future will indicate whether or not we can conduct our national defense mission consistent with the prospect of unreasonable state and federal regulations.

JOHN N. MCMILLAN: There has been a marked shift by the federal government in transferring regulatory initiatives in nuclear, hazardous and solid waste from the federal level to state regulatory programs.

As a product of the 1950s baby boom, I can reflect on the decades of the Cold War and the attendant secrecy of the Korean and Cuban Crises, culminating in Viet Nam. These conflicts reflected this country's opposition to Communist expansion throughout the world. During that time, the nation depended heavily on our nuclear arsenal, and its inherent waste products, as a deterrent to possible nuclear war. Accompanying this reliance was a sense of world insecurity.

The secrecy of the Cold War was inherent in the Manhattan Project and persisted through the Atomic Energy Commission, then to the Department of Energy, and to its production facilities around the country.

But an attitudinal change throughout the world is demanding openness and access to government. This worldwide wave of freedom is reflected in the United States with more openness in government. I have read the Department of Energy is going to release health data on 200,000 workers in nuclear plants in eight states in the United States. Dr. Alice Stewart, an English epidemiological expert, will be receiving this data in a computerized form for study. This exemplifies DOE's change in attitude with regard to secrecy and nuclear production facilities.

A further example is Admiral Watkins's ten-point initiative and five-year plan for cleaning up wastes at the DOE facilities within a 30-year time frame. The plan is in the form of a rolling budget. While it is not perfect, we must continue to press forward in that arena and provide DOE with an opportunity to make good on its promise for a cultural change and line management responsibilities at DOE facilities.

For this to happen, we need open and honest communications between the states and the federal government. We need a single non-political purpose. How does this type of communication come to fruition? And what are its shortcomings?

Given my background as a Commissioner on the Southeast Compact for Low-level Waste, I would like to share with you some of the successes and hardships of that process in a congressionally mandated yet locally implemented program.

As you may know, we have a facility in South Carolina known as the Barnwell Low Level Waste facility. The nearest town is Snelling, South Carolina, with a population of about 120. It is a shallow land burial facility in operation since the 1960s. In 1971 it was licensed to Chem Nuclear.

Chem Nuclear has two licenses. One is an NRC license. The other is a State of South Carolina license which is more stringent in both transportation packaging and burial requirements.

The burial ground contains contaminated clothing, tools, trash contaminated with radio-pharmaceuticals, accelerator-produced isotopes, instruments with luminous dials and large volumes of solid waste containing depleted uranium.

There are two other such sites in the country, one in Baity, Nevada and the other in Hanford, Washington, for a total of three sited states.

The sites are limited by an annual cap on the volume of disposal. Our site has 1.2 million cubic feet per year disposal capacity; Baity has 200,000 cubic feet and Hanford, Washington, 1.4 million limit. That takes care of the country's present needs.

Political pressures from the sited states in 1980 and 1985 led to the passage by Congress of the amended Low-Level Radioactive Waste Policy Act in 1985. The Act encouraged development of compacts as a tool for disposal of low-level radioactive waste.

The Act placed the burden on states to enter into regional compacts or cooperative efforts to secure efficient facilities for the proper management of low-level waste. In the policy and purposes of the Act, Congress explicitly outlined that the states are to promote health and safety for the regions. Congress further asked the states to limit the number of facilities, effectively and efficiently manage the radioactive waste sites, encourage reduction in the amount of the low-level waste generated, distribute the costs, benefits and obligations of successful low-level radioactive waste management equitably among themselves, and secure and ensure ecological and economical management of low-level radioactive waste materials.

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In the next section, Congress left little doubt that it was the states that are primarily responsible for the success of the program. The Act left one small paragraph outlining a timely provision for technical assistance to compacts from applicable federal agencies, meaning the Department of Energy, the NRC and others.

The Southeast compact has successfully conducted the program. Further, we successfully named a second host state: after the Barnwell facility closes in 1992, North Carolina will be responsible for disposal of the region's low-level waste for the next twenty years. Two sites currently are under review in North Carolina, and we hope licensing will proceed on the timetable outlined in the Policy Amendments Act.

We also have been successful in keeping unsited states and other compact regions in line through a series of milestones set up in the Act. These milestones place substantial surcharges on disposal fees and allow sited states to deny access as a penalty for failure to comply with the Policy Amendments Act. By January 1, 1993, access will not be available for states that are not (a) a member of a compact with a site or (b) a state that is not a site for itself, such as Texas. By 1996, the real hammer deadline comes into play: states must take title to and possession of all low-level waste in their states and pay for any damages resulting from the failure to provide for disposal.

This is not to say that we have not experienced problems. They do occur at the local level, since this is a locally implemented program. They are usually fueled by the "not in my backyard" (NIMBY) syndrome. There, you have citizens in a state that has opted to enter into the compact, but, who when selected as the host state, decide that they did not want to enter into the game in the first place. The following are examples of the NIMBY syndrome.

The State of Michigan freely entered into the Midwest Compact, composed of five states. Its legislature adopted the compact, and Congress ratified it. Directly following ratification, Michigan was selected as the first site. That brought politics and NIMBY into play; Governor Blanchard succumbed to the pressure last summer and stopped the state siting process.

It took three phone calls — from Governors Campbell, Booth Gardner and Rommer — to tell Governor Blanchard that waste would not be received at the three sited states until siting activities resumed in Michigan. The governor of Michigan realized that his state would shut down because nuclear-generating plants would not have any place to store their waste and the hospitals would have nuclear waste out in their parking lots. He rescinded the siting ban.

There is an election in Michigan this year. Republicans and Democrats are fighting for control over the State Senate. Both parties' candidates now are trying to identify a solution to Michigan's problems with regard to being the next host state. One candidate has met with the mayor of Barnwell, South Carolina, the location of our facility, to work out a deal: they would ship their waste to Barnwell, mayor to mayor, not realizing the impacts on the eight state legislatures who have addressed this issue, not to mention the United States Congress.

New York submitted a plan under the milestones, which we accepted in San Francisco this past year. The plan is questionable, to say the least. Governor Cuomo has watched his New York siting authority being held hostage. His employees have gone to the sited areas and have been stampeded by demonstrators on horseback and pelted with rocks.

The New York legislature allocated the Authority about the same amount of money this year as they did last year, but the Authority demanded double that amount because of the problems noted. The state's General Assembly is still in session. We are watching them closely and withholding judgment as to whether or not there is a good-faith move toward siting a facility in New York. Depending on the legislature's response we may have to cut New York off.

The Massachusetts program is similar to New York's. We are watching their actions very closely as well.

Currently, the three sited states have cut off four states and the District of Columbia. With regard to the District of Columbia, Mayor Barry forgot to sign the plan. Puerto Rico has a small volume of radioactive wastes. Most of their waste is medical, and they do not have the ability or the money to create their own site. The Puerto Rico situation deserves special consideration.

Additionally, I should mention that Michigan and New York both have filed suit on constitutional grounds to declare the 1985 Policy Act unconstitutional. We welcome the opportunity to argue this issue in court.

As a sidebar, Governor Blanchard and others have asked the Energy Department to intercede, but Admiral Watkins has not done so. He has seen how strongly the Actfavors the state regulation of low-level wastes and the policy values inherent therein.

If you read closely Article 5(b) of the Act (the development and operation of facilities section), that portion states in part, "a host state may terminate or limit access to its regional facility if [the host state] determines that Congress has materially altered the conditions of this compact." An interpretation of that provision could mean if Congress opens up the 1985 Amendments Act to reduce the number of sites or to change the compacting situation to remove the states' authority to regulate this program, the three host states of Washington, Nevada, and South Carolina could make the unilateral decision to deny access to their facilities.

From the perspective of a sited state commissioner, that is the only hammer we have, and it has worked well. We do not use it without a great deal of consideration and thought, but when we do use it, it is effective.

The system passed by Congress works. We need not revisit the Act. It illustrates, in a highly emotional area, that states can provide the leadership and program management to tackle the relevant financial and policy issues.

DAN W. REICHER: The Natural Resources Defense Council (NRDC) is an environmental organization based in New York. We have four other offices and a staff of about 170 working on [22 ELR 10018] a variety of environmental, energy and defense issues. I am an attorney in NRDC's nuclear program.

We are here to discuss state versus federal regulation; I will do so chiefly in the context of the Department of Energy's nuclear weapons facilities. Until recently, this would not have been a particularly illuminating context because the issue was not whether the state or federal government should regulate, but whether there should be outside regulation at all.

But with victories in the courts, particularly under RCRA and NEPA, legislative advances in Congress after 45 years of not-so-benign neglect, and a bit of glasnost and perestroika in the Department of Energy itself, things have begun to change with regard to what some call the last unregulated industry in the United States.

Let me summarize the nuclear weapons complex: it occupies about seventeen research, processing, and production facilities spread across thirteen states, covering a land area about half the size of Massachusetts. One facility in Idaho occupies over 800 square miles and contains over thirty nuclear reactors. If it were a privately held company, it would rank somewhere in the Fortune 50: roughly a $ 10 billion a year operation. It employs more than 100,000 employees.

As noted earlier by panelists, it also has been been a nuclear complex covered by a thick veil of secrecy.

Environmental and safety problems at the facilities are of monumental proportions. There are more than 3,000 waste sites across the 17 facilities. At the Hanford facility in Washington State alone there are greater than 1,000 sites. Serious ground water contamination at some facilities has led to the abandonment of drinking water supplies. The contamination has resulted from massive and sometimes intentional releases of radioactive materials to the air and to surface water.

Gross noncompliance is a fact. Cleanup costs for these facilities are estimated at over $ 100 billion dollars. This is a staggering environmental problem.

Clashes over regulatory authority have occurred regarding nuclear material, not just state versus federal, but also federal versus federal clashes — EPA versus DOE. Here, the starting point is the Atomic Energy Act of 1954 (AEA), which gave DOE and its predecessors — the Atomic Energy Commission and the Energy Research and Development Administration (ERDA) — broad and fairly exclusive authority over things radioactive at weapons plants.

Although the AEA requires the licensing of commercial nuclear activities based on promulgated health and safety standards, the Act specifically does not require licenses in connection with DOE nuclear weapons activities. That is one of the problems we have encountered over the decade: weapons research, production and testing are unlicensed activities. The AEA essentially made DOE self-regulating regarding health and safety matters. Moreover, neither the Act nor its legislative history provided guidance on the management of radioactive and nonradioactive waste.

Subsequent legislation — the Energy Reorganization Act of 1974⁵ — divided the AEC into the NRC and ERDA; the DOE Organization Act of 1978⁶ formed DOE from ERDA but did not fill the regulatory vacuum created by the AEA.

But, assisted by the courts, Congress began to chip away at this authority with the enactment of various federal environmental laws. Most of the environmental statutes include a provision requiring federal facilities to comply with federal, state, and local requirements and regulations to the same extent as private facilities must — for instance, RCRA Section 6001.⁷

At the same time, however, also with assistance from the courts, the Executive Branch has taken positions that have frustrated the application of federal laws to the federal nuclear facilities. There are many examples; let me highlight RCRA.

RCRA has been a particularly contentious statute as it applies to federal nuclear facilities. From its enactment in 1976 and particularly beginning in 1980, DOE took the position that its weapons plants were exempt from RCRA. DOE argued that, among other things, the Atomic Energy Act precluded state authority under RCRA, since its application would conflict with the Atomic Energy Act's national security requirements. The basis for the argument was that having to allow EPA and state inspectors onto the weapons sites, and giving states and EPA the authority to set standards for waste management, conflicted with DOE's authority under the Atomic Energy Act.

NRDC and the Legal Environmental Assistance Foundation (LEAF) filed suit at the Y-12 plant at Oak Ridge, Tennessee, challenging DOE's contention that it did not have to apply for RCRA permits at Oak Ridge. The State of Tennessee intervened on our behalf, and in a 1984 decision, the U.S. District Court for the Eastern District of Tennessee found for the plaintiffs and disagreed with, among other things, DOE's claimed immunity from state regulation.

DOE did not appeal the case, but unfortunately, this case did not come close to resolving all the problems relating to RCRA's applicability to federal facilities.

One of these problems is mixed waste. These are mixtures of RCRA hazardous waste and radioactive waste subject to the Atomic Energy Act. Immediately following the Y-12 case, DOE argued that any of its wastes that were mixed wastes were exempt from RCRA. Since it is difficult to find any waste at one of these facilities that does not have some radioactive constituents, this constituted most of DOE's waste at the weapons plant. This position essentially emasculated the Y-12 victory.

DOE later retreated from this claim, but then asserted in a proposed rule-making that much of its mixed waste was really something called by-product material, which is a species of waste under the Atomic Energy Act explicitly exempted under RCRA. This claim, first advanced in 1986, prompted litigation by NRDC and others, as well as an outcry from seventy members [22 ELR 10019] of Congress. DOE relented, and in May of 1987 agreed that all of its mixed wastes were subject to RCRA as well as to the Atomic Energy Act.

Thus, DOE has authority over the radioactive constituents, while EPA has authority over the hazardous constituents. This has made for some interesting discussions about how you divide up regulation concerning the same waste but focusing on its different constituents.

While this was not the precise result we had desired, at least RCRA authority has been established.

The decision about mixed waste was not the end of the battle under RCRA against the DOE facilities. The second battle is how priorities are set for cleanup of federal waste sites. The third is whether the same enforcement mechanisms — orders, litigation and penalties — that states and EPA use against private facilities are available to enforce RCRA against DOE facilities.

This discussion extends to all federal facilities, including the Department of Defense (DOD), Interior and other agencies. RCRA holds the facilities to the same federal, state and local requirements as commercial facilities.

Despite Congress's intention, the Department of Justice, DOE and DOD have argued that the three primary RCRA enforcement mechanisms are not available to enforce RCRA against federal facilities. More specifically, the Executive Branch has argued that EPA cannot issue unilateral administrative orders under RCRA Section 3008(a) against federal facilities⁸ or file compliance litigation. The Administration also has contended that states cannot collect penalties for violations of RCRA.

Justice argues, among other things, that the Constitution prevents EPA from issuing unilateral administrative orders. Justice brandishes the so-called theory of the "unitary executive" to argue that disputes between federal agencies are to be resolved by the President or his designee, and not through an order from one agency to another.

This theory flies in the face of congressional intent under RCRA, settled constitutional doctrine and, most interestingly, the fact that as of April 1987, EPA had issued some 151 unilateral administrative orders to thirteen federal agencies without objection from Justice. The "unitary executive" theory, which was advanced late in the Reagan Administration, thus contradicts EPA's own activities in the same Administration.

Regarding compliance litigation, Justice argues that a RCRA suit brought by EPA against DOE or another federal agency is not justiciable; there is no genuine controversy between the two agencies that is appropriate for judicial resolution. We believe that such an action would rely on RCRA as grounds for justiciability, and in fact, there is substantial case law indicating the ability of a federal agency to sue another, including in the environmental context.

The third roadblock erected by the Administration is the claim that states cannot recover civil penalties for RCRA violations. Justice has argued in several cases, including a pending one brought by NRDC at the Savannah River plant, that RCRA does not waive sovereign immunity with respect to the imposition of penalties for RCRA violations.

Courts have split on the issue, which is being taken up in Congress. Last year, the House of Representatives passed overwhelmingly a bill that would clarify the waiver of sovereign immunity with respect to penalties, and would grant EPA unilateral order authority against DOE and other federal agencies. Unfortunately, the Administration is pressing for weakening amendments. For example, the amendments would require that the Act be applied only prospectively, and not to current enforcement actions. Under the Administration's program, the Act also would not go into effect until after an elaborate prioritization process is worked out for the cleanup of all federal waste sites.

That takes me to another thorny issue under RCRA: prioritization. With 3,000 waste sites at DOE facilities and perhaps three to four times that number at Pentagon facilities, and in an era of declining defense budgets, the question is which sites get cleaned up first and which, last.

Under RCRA, states have the authority to place federal facilities on strict cleanup schedules. But under CERCLA Section 120, EPA is supposed to reach inter-agency agreements to set cleanup schedules. Adding to the confusion, DOE is attempting to develop an elaborate risk-based computer model to set its own priorities, and there is a push in both Congress and the Administration to develop a priority-setting system encompassing all the federal agencies with cleanup needs.

Out of this arise several large issues. First, who ultimately sets priorities? Can a state Attorney General under RCRA hold a federal agency to a schedule that is inconsistent with one agreed to by EPA and DOE under CERLCA Section 120? Our answer to that is yes.

Second, can or should federal budget limitations allow a federal agency to escape legally mandated cleanup schedules? Our answer to that is no.

Third, who determines what cleanup standards should be imposed? If you use federal standards, which ones? Rephrased: how clean is clean?

Let me identify some additional federal/state issues involving nuclear materials. First is the issue of radioactive air pollutants under the Clean Air Act. The issues here are EPA's authority to set standards for commercial facilities. A Senate bill would eliminate that authority where the Administrator finds that NRC's general regulation of nuclear facilities provides an ample margin of safety.

Further, under the Senate bill, DOE facilities would not have to comply with newly promulgated radioactive air pollutant standards, only those in existence as of last year. That is an interesting twist.

Additionally, an amendment offered by Senator Simpson, which was defeated but could arise again in the House or in the conference, would have eliminated state authority to set stricter radionuclide standards.

A second issue is federal versus state regulation of radioactive waste transportation. This is a long-standing bone of contention involving federal preemption.

By way of example, DOE challenged Colorado's authority to impose even minimal requirements on government shipments of defense waste. In particular, DOE challenged in court state regulations mandating that truckers have certain [22 ELR 10020] Colorado-specific emergency response information on hand when they pass through the state. This will continue to be a thorny issue as more and more radioactive waste is moved across the country to storage and disposal facilities.

The third issue is the regulation of radioactive discharges from commercial, as well as federal, facilities under the Clean Water Act. In a 1976 decision, the Supreme Court ruled that EPA has no authority under the Clean Water Act to regulate discharges of radioactive materials at either commercial or federal facilities.⁹ In the case of DOE facilities, this means that the Department self-regulates as to the discharges of those materials. That is cause for concern.

Fourth is the strange world of "below-regulatory concern." This concept was developed in passing by Congress in the low-level waste amendments and is being slowly implemented by the Nuclear Regulatory Commission. BRC would exempt from regulation radioactive waste below an as-yet undetermined level of radioactivity. Once exempted, these wastes could be disposed of in ordinary solid waste landfills. The prospect of below-regulatory concern waste disposal has provoked an increasing number of states to adopt legislation that would require disposal in a licensed radioactive waste facility despite any attempted exemption by NRC.

The notion of these exemptions is particularly disturbing in light of a recent National Academy of Sciences (NAS) report that indicates that the cancer-inducing effects of exposure to low-level radiation are at least three to four times higher than previously accounted for in earlier NAS studies.

A final issue involves application of NEPA to these facilities. A programmatic environmental impact statement on the nuclear weapons production complex is under way. We and other groups pressed for this in litigation over a year and a half ago. In January 1990, Admiral Watkins agreed to undertake the preparation of this EIS. This will test his commitment to the states and citizens to allow them to become greater participants in the process of opening up, overseeing and gaining information about the DOE nuclear weapons production complex.

This will be a landmark environmental impact statement that will involve hearings that probably will focus on each of the seventeen facilities. It will involve a massive review of information collected over four or five decades. It will require declassification of a vast amount of information. It will be a test of the extent to which DOE is going to open itself up to public scrutiny.

We will be engaged in an interesting and sometimes bruising battle over the next few years: first, to continue the process of bringing DOE nuclear activities under full and fair regulation; and second, to develop the optimal mix between state and federal authority. It should be an interesting process in the courts, in Congress, and in the agencies, and I hope you all stay tuned.

DISCUSSION

PARTICIPANT: What alternative is there to waiver of sovereign immunity? The federal government seems to be the single largest polluter in Texas. It is particularly irritating that I can't touch them because of sovereign immunity. What should I use to clean up the mess that already exists and that isn't going to abate?

SCHROEDER: States do not have as a tool waiver of sovereign immunity for fines and penalties, but a number of mechanisms are available. Litigation is available. There are compliance agreements. We operate under permits issued by states. For the most part, when DOE is found to be in noncompliance in a contemporary situation, as opposed to the obvious hazard situation or historical situation, the public pressure moves the Department to react as quickly as possible. I do not see any particular added impetus from fines or penalties necessarily moving the Department to act more quickly.

At the same time, although people perceive that fines and penalties motivate the Department of Defense to respond to corrective actions under RCRA, we do not have the resources to have forty or fifty different entities establishing priorities. In the absence of set priorities, the Department would find itself writing a check to an entity every day for a fine or penalty for failure to remediate a RCRA corrective action site. The U.S. lacks the infrastructure to deal immediately with all the corrective actions we face. Thus, the inability to respond and remediate immediately means that such fines and penalties would serve merely as a grant program to the states.

We cannot simultaneously remediate all of our sites. We do not have the laboratories to conduct the analysis. We don't have the contracting community to undertake the remediation. Given the fact that it can't all be done at the same time, prioritization is necessary.

PHILLIP AHRENS: I don't think anyone in any state has yet suggested that all DOE facilities need to be cleaned up at one time. I'm sure that states would agree that prioritization is appropriate.

It is interesting that in 1985 all fifty states did send their wastes to just three sites. South Carolina took advantage of the NIMBY syndrome there to force the other states to take care of their own wastes. But, I wonder if it is fair for South Carolina to object now to citizens in other states using the same political process South Carolina used in 1985 to defend the NIMBY syndrome.

MCMILLAN: Yes, it is unfair. That was addressed in 1985 during the congressional debate in putting together the compacting process. Seven compacts were ratified, all of which said yes to that same question. It is time to allow the sited states their due.

I mentioned that our state has taken a disaproportionate share of nuclear waste materials, dating back to the 1960s. We have the low-level facility in Barnwell; a 300 square mile Savannah River site with five reactors, three of which may restart; a nuclear Navy in Charleston and a nuclear fabrication facility run by Westinghouse right outside Columbia.

Ultimately, Congress did decide that regional disposal was the best long-term method to address the disposal problem. This gave the states the opportunity for collective action with those with whom they felt most comfortable — each other.

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REICHER: There remains a legitimate technical issue. With projections about waste production that are lower than even in 1985, and certainly far lower than in 1980 or 1975, are we moving in the right direction with a proliferation of low-level waste sites? That issue, as much as anything else, is a legitimate point of dispute raised by some states. I have heard no answer; there is frustration about how to deal with it. And it is past the point now where the states can reconfigure themselves, given the hammer provisions in the law which state that no more waste can be directed to the three sited states after a certain date. So we may be developing a system with too many sites and more capacity than we need.

PARTICIPANT: Governor Dukakis and Attorney General Shannon in Massachusetts have used the post-Three Mile Island evacuation criteria to stop the start-up of Seabrook. In a strange twist, the Governor now finds himself on the other side. As part of the cleanup of Boston Harbor, he must find a landfill site in the state for the grit and other kinds of screenings from that cleanup. He has selected one and is encountering amazing resistance, not surprisingly, from the residents of the community where that landfill is planned to go. He's not happy. The state legislators from that community are proposing a bill that would expand the formerly hated state prison in the town to cover the site where the landfill would be sited. Do you see any limit to the appropriate role of states in dealing with siting or regulation of these facilities that we can argue are in the national interest? Should we let this kind of local interest rule the process through the back door, as it has recently in the Northeast?

PARTICIPANT: The Shoreham and Seabrook situations reflect legitimate concern about safety risks and evacuation planning. We can debate the economic wisdom of the decisions, particularly about Shoreham, and its implications for national energy strategy, but in fact the surrounding area is very populated.

We need to give these communities a voice; the post-TMI system that was put into place would have done so. But that system has been constricted and altered to such an extent that local citizens have not received their full due.

PARTICIPANT: What about the future of nuclear energy as a response to global warming?

REICHER: NRDC is not and has not been opposed to nuclear power. Our view is that it needs to compete on a level economic playing field with all the other sources of energy. The Shoreham reactor has been described as not a local asset but a national one. I question whether that is the case. It is a local risk. To the extent that there are problems or accidents at a nuclear or a non-nuclear facility, they are generally localized problems, and individual citizens in those areas are being asked to accept them. The local citizenry should have the right to ensure that the facility that is built is acceptable in terms of risk and that there is adequate planning in the event of an accident, including conservation and energy efficiency. Since the creation of the Atomic Energy Act and the inception of nuclearpower, it has not had to compete in that way. For example, look at nuclear waste — the great costs borne to dispose of it and the regulatory system in place to deal with it.

Our view is that if nuclear power were to compete fully and fairly on a level playing field, it would not yet be the energy source of choice. That is particularly the case given that we have no resolution to the nuclear waste disposal problem, and we don't foresee one in the near term.

1. Atomic Energy Act of 1946, ch. 724, 60 Stat. 755.

2. Atomic Energy Act of 1954, ch. 1073, 68 Stat. 919.

3. 426 U.S. 1 (1976).

4. See, Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Secs. 9601 et seq.

5. Pub. L. No. 93-438, 88 Stat. 1233 (1974).

6. Pub. L. No. 95-91, 91 Stat. 565 (1977).

7. See Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795 (1976) (current version at 42 U.S.C. § 6961 (1989), 6992K, ELR STAT. 001-050).

8. 42 U.S.C. § 6928(a) (1989).

9. Train v. Colorado Pub. Interest Group, 426 U.S. 1 (1976).