[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.