[Senate Report 104-247]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 359
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-247
_______________________________________________________________________


 
                     WARD VALLEY LAND TRANSFER ACT

                                _______


                 March 28, 1996.--Ordered to be printed

_______________________________________________________________________


  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1596]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 1596) to direct a property conveyance in 
the State of California, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                         Purpose of the Measure

    The purpose of S. 1596 is to convey to the State of 
California 1,000 acres of land specified in the bill for the 
Ward Valley Low-Level Radioactive Waste facility upon (1) the 
tendering of $500,100 to the Secretary of the Treasury; and (2) 
the tendering of a written agreement by the State of California 
to the U.S. Nuclear Regulatory Commission to carry out 
environmental monitoring and protection measures based on 
recommendations of the National Academy of Sciences in a May 
1995 report.

                          Background and Need

    Low-level radioactive wastes--most commonly of items such 
as gloves, protective clothing, power plant filter wastes, 
glass, rags, piping and other metal components exposed to 
radioactivity--are generated by a variety of sources, 
including:
          Medical procedures involving radiation or radioactive 
        material, numbering in excess of 100 million medical 
        procedures annually;
          The testing and development of new drugs;
          The operation and decommissioning of nuclear power 
        plants;
          The production of consumer products such as smoke 
        detectors, contact lens solution, cosmetics and hair 
        products; and
          Basic scientific research in industry, universities 
        and other institutions.
    In 1980, Congress adopted the Low-Level Radioactive Waste 
(LLRW) Policy Act which assigned responsibility for low-level 
radioactive waste disposal to the States and encourage the 
formation of interstate ``compacts'' to efficiently manage the 
wastes on a regional basis. At that time, the Nation's LLRW was 
commercially handled in only three States (Washington, South 
Carolina and Nevada) which objected to the inequity of this 
situation. Since then, nine compacts have been formed to 
establish regional disposal facilities. California joined with 
Arizona, North Dakota and South Dakota to form the Southwestern 
Compact for low-level waste disposal. In accordance with the 
LLRW Policy Act, Congress consented to the Southwestern Compact 
in November 1988.
    In September 1993, after an eight year process, the State 
of California Department of Health Services issued a license to 
a private licensee to develop a LLRW facility at Ward Valley, a 
remote area in the Mojave Desert 22 miles west of Needles, 
California. The Ward Valley facility is, in fact, the first 
facility to be licensed under the LLRW Policy Act.
    California's licensing process included a competitive 
process to select a license designee, a Statewide screening for 
potential sites, joint cooperative efforts with Federal 
agencies in the development of an Environmental Impact 
Statement (EIS) required by the National Environmental Policy 
Act (NEPA) and biological opinions required by the Endangered 
Species Act. The first EIS was issued in April 1991, followed 
by a supplemental EIS in December 1992. The first biological 
opinion, issued on November 21, 1990, concluded that the 
project as mitigated would not jeopardize the desert tortoise, 
a listed ``threatened'' species. The second biological opinion, 
necessitated by subsequent identification of the critical 
habitat for the species, concluded on August 31, 1995 that the 
Ward Valley project ``. . . is not likely to jeopardize the 
continued existence of the desert tortoise or result in the 
destruction or adverse modification of critical habitat.''
    Although Interior Secretary Manuel Lujan had approved the 
transfer of 1,000 acres of BLM lands required for the Ward 
Valley site upon payment of the established fair market value 
of $500/acre, Interior Secretary Bruce Babbitt rescinded the 
approved transfer. Secretary Babbitt subsequently requested an 
additional administrative hearing process, the scope and 
duration of which were the subject of negotiations between 
California and the State for several months. California and the 
Department of the Interior eventually agreed on the general 
nature of the hearings to be held; however, Secretary Babbitt 
then postponed the hearings, citing judicial challenges to the 
license pending in State court. All judicial challenges, 
including requests for an adjudicatory hearing, were later 
denied in favor of the project.
    In March 1994, Secretary Babbitt referred seven technical 
and scientific issues raised by individuals employed by the 
U.S. Geological Survey and rejected by the State of California 
to the National Academy of Sciences (NAS) for further review. 
These issues included claims that radionuclides from the site 
could migrate to groundwater beneath the site and potentially 
the Colorado River; that the project would adversely impact the 
desert tortoise; and that there were no plans to monitor 
groundwater and the unsaturated zone downgradient from the 
site. In May 1995, the NAS released its report, which was 
highly favorable to the Ward Valley site in its discussion and 
recommendations related to the seven technical and scientific 
issues NAS was directed to review. Most notably, the NAS report 
concluded, based on multiple lines of scientific evidence, that 
groundwater contamination from the site was ``highly 
unlikely.'' The report further concluded that no health threat 
was posed to Colorado River drinking water. However, the report 
also made several recommendations with respect to the need for 
additional scientific baseline and monitoring measurements.
    Upon the release of the favorable NAS report, California 
Governor Pete Wilson agreed to implement its technical 
recommendations, and Secretary Babbitt announced his intention 
to convey the land, provided that the State of California enter 
into a binding agreement to conduct the tests and to provide 
the Department of the Interior with a continuing oversight 
role. After extensive discussions between California and the 
Department of the Interior failed to produce an agreement, 
Governor Pete Wilson requested that Congress intervene to 
transfer the land legislatively. California's main objection 
centered on Interior's insistence on an oversight role despite 
its lack of expertise or responsibility regarding radiation 
safety protection.
    The matter was further complicated by the discovery of 
radioactive tritium and carbon-14 above background levels by 
the U.S. Geological Survey (USGS) in unsaturated soils below a 
closed LLRW burial site near Beatty, Nevada. The Nevada site 
had been operated by U.S. Ecology, the licensee selected by 
California to operate the Ward Valley site. Opponents of the 
Ward Valley site argued that the findings at Beatty compelled 
further studies at Ward Valley. On February 15, 1996, Deputy 
Secretary of the Interior, John Garamendi, citing the Beatty 
information, announced that additional tritium testing and 
another supplemental EIS would be required prior to a land 
transfer decision. The Director of the U.S. Geological Survey, 
however, in a February 14 memorandum issued prior to Deputy 
Secretary Garamendi's announcement, stated:

          The review team believes that the observed tritium 
        distribution at Beatty is probably the result of the 
        burial of liquid wastes and the fact that some disposal 
        trenches at Beatty were open for years until filled, 
        allowing accumulation and infiltration of precipitation 
        . . . The license that the State of California has 
        issued for the Ward Valley facility does not permit 
        disposal of radioactive waste in liquid form and 
        requires that only the minimum amount of open trench 
        necessary for the safe and efficient operation shall be 
        excavated at any one time. Because of the differences 
        in waste burial practices at the Beatty site compared 
        to those intended for the Ward Valley site, and the 
        previously mentioned uncertainties about the transport 
        mechanisms at Beatty, extrapolations of the results 
        from Beatty to Ward Valley are too tenuous to have much 
        scientific value. (Emphasis added)

    The U.S.G.S. memorandum also stressed the need for 
implementation of the measures recommended by the Academy, 
included long term, continuous monitoring as distinguished from 
the shorter term, pre-conveyance tritium tests ordered by 
Deputy Secretary Garamendi U.S.G.S. Director Eaton subsequently 
commented that the tritium tests would be inconclusive, 
suggesting that the conduct of the tests would engender demands 
for further delay.
    Amid this background of delay and stalemate, low level 
radioactive waste continues to accumulate at more than 800 
sites across California, including universities, hospitals, 
biotechnology companies and other industries in densely 
populated areas. Adverse implications for public health and 
safety, medical treatment, scientific research and other 
important activities have contributed to widespread agreement 
that additional scientific studies, including tritium studies, 
can and should be undertaken as part of the more comprehensive 
program already required by the State's license. California and 
17 of 19 NAS Committee members agree that additional studies do 
not need to precede the land transfer. Indeed, the majority of 
the NAS Committee, according to its Chairman, anticipated that 
additional baseline studies could be accomplished after land 
conveyance during the facility's construction and that longer 
term studies should be accomplished as part of the long-term 
monitoring conducted in conjunction with the operation of the 
site. The Department of the Interior, however, despite the 
conclusions of the NAS and the USGS, continues to insist upon 
months of study and the preparation of a supplemental EIS prior 
to the land conveyance. In a letter to Chairman Murkowski dated 
March 12, 1996, Interior Secretary Bruce Babbitt estimated that 
the completion of these steps would ``take about a year.''
    Concerned about the potential human health, safety and 
environmental effects of the continued dispersal of radioactive 
waste at 800 sites around California, Senator Murkowski and 
Senator Johnston reacted to the Department of the Interior's 
announcement of further delay with the introduction of S. 1596.
    In addition to the potentially adverse human health, safety 
and environmental effects in California resulting from the 
further delay of Ward Valley, the national policy implications 
of further delay must also be considered. The formation of 
interstate compacts and the licensing of LLRW sites have not 
occurred in the timely fashion. Congress anticipated with the 
passage of the LLRW Policy Act of 1980 or its 1985 amendments 
which envisioned that new disposal sites would be operational 
by 1993. California is the first State to license a site under 
the LLRW Policy Act. California's licensing decision has 
withstood all judicial challenges in State courts. Indeed, 
legal action challenging the license and the related 
environmental impact report prepared jointly with the Federal 
Government has been finally resolved in State court. 
Nevertheless, California has been unable to commence operations 
due to the ability of Department of the Interior officials to 
impose continual delays and thus override the fundamental 
policy at the foundation of the LLRW Policy Act--namely, that 
low level waste management is a State responsibility. Many 
argue that actions by Federal officials to repeatedly delay 
Ward Valley (particular by Interior Department officials 
without expertise in the regulation of Nuclear materials), 
seriously threaten the viability of the LLRW Policy Act. 
Indeed, Governor Pete Wilson, in a February 16, 1996 letter to 
the Chairman, wrote:

          In the Low-Level Radioactive Waste (LLRW) Policy Act, 
        Congress gave to the States and to voluntary compacts 
        entered into by the States the responsibility for safe 
        disposal for LLRW generated within their borders . . . 
        Despite California's best efforts to move forward with 
        establishment of its disposal facility while faced with 
        Secretary Babbitt's demands, it has become abundantly 
        clear that he has no intention of transferring the Ward 
        Valley 
        land . . . If the White House and the Department of the 
        Interior continue to contend that the Federal 
        Government is the only steward of LLRW that the public 
        should trust, then the LLRW Policy Act has been 
        rendered unworkable and must be replaced by a new law 
        that gives this responsibility to the very Federal 
        officials who now refuse to leave it to the States. 
        (Emphasis added)

    Should the LLRW Policy Act be found to be unworkable, the 
country would confront the very situation that existed in 1979 
when Congressional action was required to avert a national 
crisis. In short, users of radioactive materials and consumers 
of the goods and services they provide could be adversely 
affected in every State. Unlike 1979, however, there would be 
little alternative but to assign responsibility to the Federal 
Government, and approach offering little hope of timely 
solutions. Moreover, some of the same States now shouldering 
the national burden for commercial LLRW disposal (i.e. 
Washington and South Carolina) are also locations for existing 
disposal facilities for DOE defense LLRW. Thus, it is clear 
that continued delays at Ward Valley are likely to have 
significant impacts outside of California and the other 
Southwestern Compact States.
    To lessen the risks associated with the dispersal of LLRW 
at more than 800 primarily urban sites across California and 
the possibility of accidental releases resulting from fire, 
flood and earthquakes, the Committee feels that the immediate 
conveyance of the necessary BLM land and the opening of the 
Ward Valley LLRW facility is in the public interest. Moreover, 
the Committee is concerned about the continuing viability of 
the LLRW Policy Act given the stated intent of Federal 
officials to impede the efforts of a State acting in good faith 
and in compliance with the law, to open its LLRW facility.

                          legislative history

    Senators Murkowski and Johnston introduced S. 1596 on March 
7, 1996. With the exception of an added requirement that 
California provide a written agreement to carry out additional 
environmental monitoring and protection measures, the text of 
S. 1596 closely followed the language previously reported by 
the Committee in the Omnibus Budget Reconciliation bill 
subsequently adopted by Congress and vetoed by the President.
    A similar measure, S. 2151, was introduced by Senator 
Johnston in the 103d Congress. A hearing was held on S. 2151 
before the full Committee on July 19, 1994.
    S. 1596 was considered and ordered reported during a 
Committee business meeting on March 13, 1996.
    Senator Pressler was added as an additional cosponsor on 
March 14, 1996.

            committee recommendation and tabulation of votes

    The Senate Committee on Energy and Natural Resources, in 
open business session on March 13, 1996, by majority vote of a 
quorum present recommends that the Senate pass S. 1596 without 
amendment.

                      section-by-section analysis

Section 1--Short title

    The intent of the section is self explanatory.

Section 2--Conveyance of property

    This section provides for the immediate conveyance, by 
operation of law, of all right, title and interest of the 
United States in the property depicted on a map designated USGS 
7.5 minute quadrangle, west of Flattop Mtn, CA 1984, entitled 
``Location Map for Ward Valley Site'', located in San 
Bernardino Meridian, Township 9 North, Range 19 East, and 
improvements thereon, together with all necessary easements for 
utilities and ingress and egress to such property, including, 
but not limited to, the right to improve those easements, to 
the Department of Health Services of the State of California 
effective upon (1) the tendering to the Secretary of the 
Treasury of $500,100 on behalf of the State of California, and 
(2) the tendering to the Chairman of the United States Nuclear 
Regulatory Commission (NRC) of a written commitment by the 
State to carry out environmental monitoring and protection 
measures based on recommendations of the National Academy of 
Sciences subject to Federal oversight by the Commission 
pursuant to 42 U.S.C. 2021, as amended. Contrary to a statement 
in the Secretary of the Interior's letter of March 12, 1996 
that this language could be construed to make the State's 
commitment to perform the recommended testing unenforceable by 
limiting the NRC to an oversight role, it is the Committee's 
view and intent that this language not affect NRC regulation of 
the site under existing law.
    It is the Committee's intention that no further Federal 
actions need occur to execute the conveyance of the land. 
Moreover, the section stipulates that the Department of the 
Interior must, upon request of the State of California, provide 
evidence of title transfer.

                   cost and budgetary considerations

    The following estimate of costs has been provided by the 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 27, 1996.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1596, the Ward 
Valley Land Transfer Act.
    Enactment of S. 1596 would affect direct spending; 
therefore, pay-as-you-go procedures would apply to the bill.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                         June E. O'Neill, Director.

               congressional budget office cost estimate

    1. Bill number: S. 1596.
    2. Bill title: Ward Valley Land Transfer Act.
    3. Bill status: As ordered reported by the Senate Committee 
on Energy and Natural Resources on March 13, 1996.
    4. Bill purpose: The bill would convey to the state of 
California about 1,000 acres of land in San Bernadino County, 
California, effective upon the tendering of $500,100 to the 
Treasury and a written commitment by the state to carry out 
environmental monitoring and protection measures on the 
property after conveyance.
    5. Estimated cost to the Federal Government: Based on 
information provided by the state, CBO estimates that enacting 
the bill would result in proprietary receipts to the Treasury 
of $500,100 in fiscal year 1996, assuming enactment by August 
1, 1996.

----------------------------------------------------------------------------------------------------------------
                                                              1996       1997       1998       1999       2000  
----------------------------------------------------------------------------------------------------------------
                                         ADDITIONAL OFFSETTING RECEIPTS                                         
Estimated budget authority...............................         -1          0          0          0          0
Estimated outlays........................................         -1          0          0          0          0
----------------------------------------------------------------------------------------------------------------

    The budgetary impact of this bill falls within budget 
function 300.
    6. Pay-as-you-go-considerations: Section 252 of the 
Balanced Budget and Emergency Deficit Control Act of 1985 sets 
up pay-as-you-go procedures for legislation affecting direct 
spending or receipts through 1998. CBO estimates that enactment 
of S. 1596 would reduce direct spending by increasing 
offsetting receipts in fiscal year 1996, as shown in the 
following table.

------------------------------------------------------------------------
                                            1996       1997       1998  
------------------------------------------------------------------------
Change in outlays......................         -1          0          0
Change in receipts.....................      (\1\)      (\1\)     (\1\) 
------------------------------------------------------------------------
\1\ Not applicable.                                                     

    7. Estimated impact on state, local, and tribal 
governments: S. 1596 contains no intergovernmental mandates as 
defined in Public Law 104-4 and would impose no direct costs on 
state, local, or tribal governments. This transaction would be 
voluntary on the part of the state. According to state 
officials, this land would be used for a low-level radioactive 
waste facility, in accordance with existing federal law.
    8. Estimated impact on the private sector: The bill would 
impose no new federal private sector mandates, as defined by 
Public Law 104-4.
    9. Previous CBO estimate: On November 16, 1995, CBO 
provided an estimate for the conference report on H.R. 2491, 
the Balanced Budget Act of 1995. H.R. 2491 included a provision 
that was similar to S. 1596. Similar provisions were also 
included in the reconciliation recommendations of the House 
Committee on Resources and the Senate Committee on Energy and 
Natural Resources. In each case, CBO estimated that enactment 
would result in additional proprietary receipts of $500,100 in 
fiscal year 1996.
    10. Estimate prepared by: Federal Cost Estimate: Gary 
Brown. State and Local Government Impact: Marjorie Miller. 
Private Sector Impact: Patrice Gordon.
    11. Estimate approved by: Robert A. Sunshine, for Paul N. 
Van de Water, Assistant Director for Budget Analysis.

                      regulatory impact evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 1596. The bill is not a regulatory measure in 
the sense of imposing Government established standards or 
significant economic responsibilities on private individuals 
and businesses. Rather, the bill merely conveys a specific 
tract of land to the State of California.
    The bill does not contain any provision for the collection 
of personal information. Accordingly, the bill will now have 
any impact on personal privacy. In addition, little if any 
additional paperwork should result from the enactment of S. 
1596.

                        executive communications

    The pertinent legislative communication received by the 
Committee from the Department of the Interior setting forth 
Executive agency recommendation relating to S. 1596 is set 
forth below:

                             The Secretary of the Interior,
                                    Washington, DC, March 12, 1996.
Hon. Frank Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Senator Murkowski: I am writing to convey the 
Administration's strong opposition to S. 1596. This bill would 
effectuate, by legislative fiat, the transfer of federal land 
at Ward Valley, California for use as a low-level radioactive 
waste (LLRW) facility.
    S. 1596 amounts to ``sufficiency'' legislation, for it 
would override federal environmental laws that apply to the 
transfer (including the National Environmental Policy Act 
(NEPA) and the Federal Land Policy and Management Act (FLPMA)), 
and would insulate the transfer from judicial review. This is 
the wrong course for such a controversial project.
    The Department of the Interior has in place a process for 
completing its decision on the State's request for transfer of 
the land. As you know, we have recently announced plans to 
complete a supplemental environmental impact statement (SEIS) 
to address certain issues relevant to the transfer. We are also 
taking steps to ensure that additional tritium testing is done 
at War Valley, as recommended by the National Academy of 
Sciences (NAS) panel in its report last year, because such 
testing might shed additional light on the suitability of Ward 
Valley site, which may be of particular value in light of 
recently available data relating to the Beatty, Nevada, waste 
disposal facility. We expect that, on completion of these 
steps, which will take about a year, we will be in a position 
to make a final decision on the transfer.
    We note that, unlike the transfer legislation proposed last 
year, the current version asks the State to promise to ``carry 
out environmental monitoring and protection measures based on 
recommendations of the [NAS panel].'' Ever since the NAS report 
was completed, we have said that the transfer cannot be made 
without an enforceable commitment by the State to carry out the 
report's recommendations. While S. 1596's favorable reference 
to the Academy's recommendations is a useful step forward, it 
does not straightforwardly require those recommendations to be 
carried out; instead, it calls for the State's promise to carry 
out measures ``based on'' those recommendations. Moreover, it 
does not specifically mandate tritium testing, nor require that 
the test results be considered in weighing the suitability of 
the Ward Valley site. Finally, it is not clear whether the 
State's promise to take these ill-defined steps is enforceable, 
because the bill makes the State subject only to ``oversight'' 
by the Nuclear Regulatory Commission (NRC), which could be 
construed not to include enforcement authority.
    For these reasons, the Administration strongly opposes S. 
1596.
            Sincerely,
                                                     Bruce Babbitt.

                        changes in existing law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill, S. 1596, as 
ordered reported.