from employees or their representatives, or as an agency/employee joint request. NIOSH's lack of access to the DOE defense facilities has long been a problem, as witnesses testified at the June 17, 1987, Governmental Affairs Committee hearing and earlier at the April 22, 1985, hearing that the Subcommittee on Energy, Nuclear Proliferation, and Government Processes held on the Management and Operation of the U.S. Department of Energy's Fernald, Ohio, Feed Materials Production Center. At the 1985 hearing Dr. Philip Bierbaum, Deputy Director of NIOSH's Division of Surveillance, Hazardous Evaluations, and Field Studies, testified that DOE repeatedly delayed NIOSH access to DOE defense facilities at which NIOSH was conducting studies. I would say that our ability to do these studies both at Piketon *** and Fernald, probably took longer than it should have for us to have the actual entry into the facility and have access to the necessary data. At the June 17, 1987, hearing the testimony of A. L. O'Connor for the International Association of Machinists reflected the frustration of efforts to secure NIOSH investigations to little avail. S. 1085 would bring both OSHA and NIOSH into DOE defense facilities. The Committee believes that worker health and safety in DOE facilities could be rendered substantially safer by applying standards developed by experts in the field of occupational health and safety. The Secretary of Labor has a long-standing responsibility for the health and safety of all workers in this Nation's industries. This includes the enforcement of occupational health and safety standards and other protective labor standard programs. Further, the Secretary of Health and Human Services (HHS) has a continuing responsibility for evaluating health effects and needs related to radioactive and toxic substances and could provide substantial assistance in creating and enforcing standards appropriate to DOE nuclear facilities. DOE, with its clearly vested interest in the production of nuclear weapons and nuclear-powered energy facilities, should be relieved of sole responsibility for the health and safety of its workers in favor of the Federal governing agency (OSHA) whose charter, as mandated by the Congress, is to protect the health and safety of all workers. As further justification for Title II, twenty-one General Accounting Office (GAO) reports (previously cited) on safety, health, and environmental practices in DOE nuclear facilities detail instances of DOE neglect of safety and environmental protection in nearly all sites surveyed. Some of DOE's facilities have been found to have released large amounts of radioactive material into the environment to the peril of workers and the public at large. Finally, it has been revealed that there is widespread distrust among DOE workers concerning health, safety, and environmental policy in nuclear facilities. Joseph Misbrener, President of the Oil, Chemical, and Atomic Workers International Union, testified at this Committee's June 17, 1987, hearing that: There is a lack of confidence by the workers that DOE even cares about them. In our judgment, it is an affirmation of our longstanding belief that you cannot put the enforcement power in the hands of the agency whose lifeblood is in the service performed by the contractors in the DOE production facilities. Dr. Philip Landrigan, Director of the Division of Occupational and Environmental Medicine at Mount Sinai School of Medicine in New York, previously headed the Division of Surveillance, Hazard Evaluations and Field Studies at NIOSH, where he had experience with NIOSH investigations at DOE facilities. He testified at the Committee's June 17, 1987 hearing on S. 1085 and states: The clear lesson to be learned *** is that the present legislative and administrative arrangement whereby DOE facilities are granted an exception from the OSHA Act is ill advised. It should not be allowed to continue. Because of this arrangement, the procedures and the roles which have been developed at NIOSH and at OSHA do not necessarily apply with equal force to DOE facilities. As a result, workers in those facilities have less protection from occupational exposures in the private sector. In essence, these workers do not enjoy equal protection under the law. LEGISLATIVE HISTORY On July 21, 1980 Senator Glenn, as Chairman of the Subcommittee on Energy, Nuclear Proliferation, and Federal Services, held a hearing on DOE's occupational safety and health program as it applied to workers at the Portsmouth nuclear enrichment facility in Ohio. At the chairman's request, the GAO conducted an investigation into the adequacy of DOE's procedures for ensuring that its health and safety standards were being met. GAO concluded in its July 1980 reports, which was submitted as part of the hearing record, that DOE was not adquately monitoring and enforcing its health and safety standards for workers at the facilities it examined. The Governmental Affairs Committee heard testimony at its hearing on June 17, 1987 from a number of witnesses as to the need for worker protection in DOE nuclear facilities. On March 17, 1987 Keith O. Fultz, Associate Director, U.S. General Accounting Office, testified that groundwater and soil contamination were among the most significant environmental problems at DOE nuclear facilities. He also testified: With regard to the Resource Conservation and Recovery Act, we found that none of the nine facilities had received a final permit. Now, as you know, this Act is designed to prevent groundwater contamination, and until the facilities receive permits, they continue to dispose of waste in a manner that may be contaminating groundwater. GAO also found that contaminated soil from DOE nuclear facilities has migrated off-site at several locations, including the Y-12 plant in Oak Ridge, Tennessee; Mound and Fernald in Ohio; and Rocky Flats in Colorado. Referring to the off-site soil contamination from the Oak Ridge facility, Fultz testified: The Y-12 plant poses a significant public health threat. Mercury from the plant's operations contaminated a stream bed and a flood plan. În some locations, the contamination is greater than 2,000 times background levels and over 150 times greater than the state's public health guidelines. Fultz also said: We found that DOE's Hanford, Washington, facility discharged liquid waste directly into the soil, although federal and state regulators would not allow private entities to do this without protective liners and proper monitoring. For example, in 1985, Handford disposed of over 25 million gallons of contaminated (both radioactive and hazardous) waste to an unlined disposal site and did not meet groundwater monitoring requirements for the site. IV. TITLE III: MIXED HAZARDOUS WASTE AMENDMENT ACT OF 1987 PURPOSE The purpose of Title III is to clarify the applicability of the Resource Conservation and Recovery Act (RCRA) to hazardous waste at Department of Energy (DOE) facilities. Specifically, it confirms Congress' intent that RCRA applies to the hazardous waste component of a mixture or a combination of a hazardous waste regulated under RCRA and radioactive material subject to the Atomic Energy Act (AEA). The provisions of Title III are intended to apply only to DOE facilities, not to the commercial nuclear industry or nuclear waste repositories, which are regulated by the Nuclear Regulatory Commission (NRC). NEED FOR LEGISLATION Serious environmental problems exists throughout the DOE nuclear complex. Soil was contaminated at six and groundwater contaminated at eight of the nine DOE facilities that the General Accounting Office (GAO) surveyed nationwide for its September 1986 report on environmental issues at DOE nuclear defense facilities. Title III focuses on RCRA's authority in regard to DOE's nuclear facilities. Before the passage of RCRA in 1976, DOE and its predecessor agencies was not subject to outside regulation of its solid hazardous waste. RCRA established federal and state regulation of solid and hazardous waste management, and section 6001 of RCRA explicitly subjects all federal facilities and their activities to state and federal regulations under RCRA. However, DOE at first resisted application of RCRA to its weapons programs facilities. DOE pointed to Section 1006(a) of RCRA, which relieves facilities operating under the authority and control of the Atomic Energy Act (AEA) from compliance with RCRA when it can be demonstrated that RCRA regulations would be in consistent with the requirements mandated by the AEA. In addition, Section 1004(27) of RCRA exempts special nuclear or by-product material, as defined by the Atomic Energy Act of 1954, from the definition of solid waste. In the case of the Y-12 plant at Oak Ridge, Tennessee, for example, where the accumulations of mercury and other hazardous materials were a serious threat to public health and safety, DOE argued that the Atomic Energy Act precluded any Environmental Protection Agency (EPA) or State regulation of hazardous or mixed waste under RCRA. Only after a Federal court found that RCRA applied to hazardous waste disposal at the Y-12 plant and ordered DOE to file RCRA permits did DOE agree that its hazardous waste was subject to RCRA. LEAF v. Hodel, 586 F. Supp. 1163 (E.D. Tenn., 1984). But mixed waste, that is, hazardous waste mixed with radioactive waste, was another matter. Despite the LEAF decision, DOE continued to insist that mixed waste (containing radioactive "byproduct" material) was wholly exempt from RCEA regulation. In November 1985 DOE proposed a formal rule which sought to make a patently unworkable distinction between "direct process" byproduct material and "indirect process" byproduct material, claiming the first to be exempt from RCRA. This proposal elicited sharp criticism from states, environmental organizations, and members of Congress. On May 1, 1987, more than ten years after RCRA required all Federal agencies to comply with its requirements in the disposal of hazardous waste, DOE issued a final interpretive rule that acknowledged the role of EPA and RCRA in regulating the hazardous contents of mixed radioactive and hazardous waste. The rule declared that the "byproduct material" (or source or special nuclear material) exempted from the definition of solid waste in RCRA consists only of the radioactive material itself. If it is combined with material that is nonradioactive but hazardous under RCRA, then disposal of the hazardous waste component must also be subject to RCRA's rules. In testimony before the Committee on June 17, 1987, DOE Under Secretary Joseph F. Salgado indicated that in light of DOE's May 1 final interpretive rule, Title III was not necessary since the "interpretive definition" of byproduct material achieved the purpose of subjecting mixed waste to RCRA as well as the Atomic Energy Act. However, in light of the history of recalcitrance and delay in DOE's acknowledgement that RCRA applies to the hazardous waste component of a mixture consisting of a hazardous waste and a radioactive material, the Committee believes that DOE's May 1 rule should be statutorily mandated. This will prevent reversal of agency policy on this important subject now and in the future. LEGISLATIVE HISTORY On April 4, 1985, in the 99th Congress, Senator Glenn introduced S. 892, a bill to amend the Solid Waste Disposal Act to clarify the jurisdiction of the Environmental Protection Agency over the regulation of solid waste mixed with radioactive waste at Department of Energy Atomic Energy Act facilities. The bill was referred to the Committee on Environment and Public Works. The Subcommittee on Nuclear Regulation held a hearing on March 25, 1986, at which Senator Glenn testified. In the 100th Congress, the Governmental Affairs Committee held a hearing on March 17, 1987 on environmental problems in DOE nuclear facilities. It heard additional testimony on this title of the legislation at a hearing on June 16, 1987. V. TITLE IV: RADIATION STUDY ADVISORY BOARD ACT OF 1987 PURPOSE The purpose of Title IV is to create a Radiation Study Advisory Board. The Board would advise and assist the Secretary of Energy in conducting studies of the effects of radiation. The Board would consist of eight members appointed by the Secretary of Health and Human Services (HHS), one member appointed by the Secretary of Energy, and two members appointed by the Secretary of Labor. The Secretary of HHS would appoint members who are expert in the health effects of radiation, epidemiology, or toxicology, as well as public health officials concerned with such health effects. Prior to the authorization or expenditure of funds, the Board would review all proposals for studies of the health effects of radiation which would be funded in an amount of $250,000 or more. The Board can recommend modifications to the proposals or recommend that the proposals not be funded. The Board would also annually review the studies on the health effects of radiation conducted by the Department of Energy. The Secretary of HHS would provide funds, facilities, and staff necessary for the Board. The Board would provide guidance to the Secretary of Energy as to the scope and direction of future studies needed. The Secretary of Energy, with the assistance of the Board, must insure that all studies performed under Title IV are subject to peer review. To assist this process, the Secretary must promulgate guidelines to assist in the provision of data from such studies to qualified researchers not associated with DOE. The Department of Energy would be required to periodically report to the Congress concerning its implementation of the Board's recommendations. NEED FOR LEGISLATION Numerous studies have been conducted since World War II on the health effects of radiation. According to the June 1979, Presidentially mandated "Report of the Interagency Task Force on the Health Effects on Ionizing Radiation," the health effects of radiation may be divided into four types: (1) acute somatic effects, (2) |