American Geological Institute

Government Affairs Program


Update on High-level Nuclear Waste Legislation: 12-29-98

105th Congressional Action
This update is complete for the 105th Congress. For information on more recent events, visit the GAP website.

On the Senate's first day back after the Presidential inauguration, Senator Frank Murkowski (R-AK) introduced S. 104, which is virtually identical to S. 1936 (sponsored by Senator Larry Craig, R-ID) in the last Congress. The legislation would site an interim high-level nuclear waste storage facility adjacent to the proposed site for a permanent repository at Yucca Mountain in Nevada. S. 1936 passed the Senate in 1996 after a series of Nevada-led filibusters but was not taken up by the House because it had failed to garner enough votes to override a promised Presidential veto. The early introduction of this legislation was a signal to the Administration that this issue represented a high priority of Murkowski and the Senate Committee on Energy and Natural Resources that he chairs.

Further raising the stakes, Murkowski proceeded to cancel several committee votes on the nomination of Federico Pena to be Secretary of Energy, explaining that the nomination was being held hostage until the Administration agreed to negotiate on the interim storage issue. After receiving assurances from the White House that Pena would have "portfolio to talk and work with Congress," the committee passed the nomination unanimously on March 6th. The White House assurance came in a letter from Clinton's Chief of Staff Erskine Bowles, who went onto reiterate the Administration's continued opposition to siting an interim facility at Yucca Mountain before a decision has been reached whether to proceed with the permanent repository. On the Senate floor, the nomination passed 99-1 with Sen. Rod Grams (R-MN) casting the lone dissenting vote. He had abstained from the earlier committee vote on Pena.

Before passage of S. 104 by the energy committee, several amendments were agreed to including one offered by Sen. Larry Craig (R-ID) requiring that not less than five percent of the total spent nuclear fuel sent annually to the interim site be defense-related waste (much of this waste is currently housed at the Idaho National Engineering Laboratory). The committee also passed an amendment offered by Sen. Ron Wyden (D-OR) to use transportation standards already in effect for the Waste Isolation Pilot Plant (WIPP) near Carlsbad, NM. Wyden also proposed and the committee accepted an amendment prohibiting the use of DOE's Hanford complex in Washington state as an interim storage facility. An amendment offered by Sen. Jeff Bingaman (D-NM) was accepted, retaining the Nuclear Waste Technical Review Board as an independent technical oversight body for DOE's Office of Civilian Radioactive Waste Management. Several other Bingaman-proposed amendments were rejected, including one that would have set a date for the siting of an interim storage facility after a decision had been made on the site suitability of the permanent repository at Yucca Mountain. Other rejected provisions would have set stricter radiation standards, made it more difficult to use funds in the Nuclear Waste Trust Fund for purposes not related to nuclear waste (part of the trust fund, which is paid into by utilities, is used each year to reduce the deficit). Murkowski suggested that some of these provisions might be included in the revised bill when it was brought to the Senate floor.

The Nevada delegation also participated in the proceedings. On February 11, 1997, Senator Richard Bryan (D-NV) introduced two pieces of legislation, S. 296 and S. 297. The first bill would provide credits to utilities to offset the cost of storing spent fuel that the Secretary of Energy is unable to accept for storage on and after January 31, 1998, the date on which DOE is supposed to accept responsibility for the waste. S. 297 would establish a Presidential commission to look at nuclear waste issues. Both bills represent Nevada's continued opposition to nuclear waste disposal in their state.

In April 1997, the Senate passed S. 104, its version of the Nuclear Waste Policy Act of 1997 by a 65-34 margin, two votes shy of the two-thirds supermajority needed to override a promised presidential veto. The bill had been revised since passing the Senate Committee on Energy and Natural Resources in an effort to make the bill more acceptable to the Administration. New provisions include moving back the construction date of the interim facility to provide time for the completion of tests on the viability of the proposed long-term storage facility and excluding the Savannah River and Oak Ridge nuclear facilities as possible interim storage sites. Amendments also shorten the license term of the interim facility to 40 years and lower the limit of the initial capacity from 60,000 tons to 33,100 tons. The bill also provides for the EPA to set radiation standards at an annual dose of no more than 25-30 millirems. This standard is lower than the bill's initial standard, set at 100 millirems.

H.R. 1270 was introduced by Rep. Fred Upton (R-Mich.). Initially, Committee Chairman Thomas Bliley (R-VA) announced that he would await a federal circuit court ruling on whether DOE must take charge of high-level nuclear waste from commercial power plants within a federally mandated deadline of January 31, 1998. Since the Senate failed to pass S. 104 with a veto-proof majority, Bliley hoped that a ruling against DOE would make the Clinton Administration less likely to veto an interim storage bill. Bliley indicated that he wanted to take only one shot at passing nuclear waste legislation. However, Bliley changed his mind after it became apparent that the appeals court would begin hearing arguments in the case only by the end of September. Bliley asked Subcommittee Chairman Schaefer to schedule consideration of the bill in order to "maintain the momentum and keep the pressure on the White House." The Administration is opposed to deciding on an interim waste facility at Yucca Mountain before its viability as a permanent repository is confirmed. Opponents of an interim storage facility say the Nuclear Waste Technical Review Board (NWTRB), an independent board established by Congress, does not find any technical or safety reason to move spent fuel to a centralized interim storage facility in the next few years. Nuclear utilities say 2010, the earliest date a permanent geological repository can be readied, is simply not acceptable.

On March 12, 1997, the House Energy and Water Appropriations Subcommittee heard testimony on the budget requests for DOE's nuclear waste and environmental management programs. A summary of the hearing is available on this site. On July 31, 1997, the House Commerce Subcommittee on Energy and Power voted in favor of a modified version of H.R. 1270 . Subcommittee Chairman Dan Schaefer (R-CO) listed the challenges that face us in nuclear waste policy including:

According to Schaefer, over $11 billion has been collected from electric utility rate payers for the Nuclear Waste Trust Fund, only $4.5 billion has gone to nuclear waste storage with part of the fund used each year to reduce the deficit. Ranking Member Ralph Hall (D-TX) noted that this bill is very similar to legislation introduced in the 104th Congress (H.R. 1020). Changes made in the legislation include the following provisions:

The bill also addresses concerns that an interim facility will become a de facto permanent repository by limiting the capacity of the facility to a fraction of that planned for the permanent site.

A number of amendments to the bill were introduced at the markup, five of them offered by Rep. Edward Markey (D-MA). All were defeated, including a Markey amendment that would have reduced the standard for release of radioactive material at the site from 100 millirems per year to a standard determined by the EPA. The Senate equivalent bill, S. 104, provides for the EPA to set radiation standards that prohibit the release of radioactive material in the vicinity of Yucca mountain to an annual dose of no more than 25-30 millirems. The bill's provision delaying the start date from 2000 to 2002 brings the House bill in line with its Senate counterpart. H.R. 1270 differs from S. 104 in that it envisions a two-phase development of the interim facility: first a 10,000 ton capacity for a 20-year license term, then a 40,000 ton facility with a 100-year initial term. By contrast, S. 104 sets a single capacity limit of 33,100 tons to be reached in the year 2015, but that capacity is expandable and would be licensed for a 40-year term.

Operating under restrictive rules that limit debate and allow the leadership to choose which amendments may be offered, the House of Representatives passed H.R. 1270 as reported out of the Commerce Committee by a veto-proof majority of 307-120 last fall. The House Resources Committee had also reported out a version, but the House Rules Committee (which controls what legislation is considered on the House floor) chose to bring up the Commerce Committee version.

Resource Committee Chairman Don Young (R-AK) hoped to be able to force votes on the committee's amendments, the most notable of which would allow property owners to receive compensation from the government if their property diminished in value as a consequence of provisions in the legislation. Introduced by Nevada Rep. Jim Gibbons (R), an avid opponent of the Yucca Mountain project, the amendment was intended to scuttle the bill.

Since then, efforts have continued behind the scenes to find two more votes in the Senate. Prospects improved recently when the Nuclear Energy Institute, representing the nuclear utility industry, wrote to the bill's sponsor, Senator Frank Murkowski (R-AK), urging him to incorporate amendments proposed by Sen. Jeff Bingaman (D-NM) that could bring in the votes. The amendments would make siting of the interim storage facility dependent on the suitability finding for the permanent repository. Up until now, industry has been reluctant to couple the two projects, fearing that continued delays in characterization of the repository would hamper the opening of an interim facility. Yet, it is very important to the nuclear industry that legislation be passed this year. But even with NEI's support, Murkowski is reluctant to add the Bingaman provisions, suggesting that they could lose as many votes as they gain. Moreover, Bingaman is proving reluctant to even offer the amendments until he sees the final version of the bill.

The debate over the Bingaman amendment proved to be fruitless, as election-year politics prevented a vote on the bill. From the beginning, the Nevada delegation had vowed to oppose the legislation, and as November approached, a battle emerged between Senator Harry Reid (D-NV) and Rep. John Ensign (R-NV)-- who is running against Reid for the Senate seat -- over who could take credit for killing the legislation. Reid and Senator Richard Bryan (D-NV) planned to filibuster the bill if it came to the floor, so Senate Majority Leader Trent Lott (R-Miss.) filed for cloture on May 22. Supporters needed sixty votes to invoke cloture, which they did not obtain in the 56-39 vote.

Several factors influenced the vote against closure. A day before the vote, Ensign announced that the House would not be addressing nuclear waste this year -- making a Senate vote meaningless -- and House Speaker Newt Gingrich (R-GA) confirmed those sentiments a day later. In addition, nine Democrats who had previously support the bill voted against cloture, most likely in an effort to aid Reid's efforts to block the bill. Democrats also pushed to complete debate the contentious tobacco settlement before beginning discussion on the nuclear waste issue.

On November 14, the U.S. Court of Appeals ruled that the federal government does not have to accept nuclear waste shipments from power plants after the January 31, 1998 deadline in their contracts. The court did not, however, agree with the Department of Energy that the delay was unavoidable. "DOE's duty to act could hardly be more clear," the panel said. The court stated that contracts between DOE and the utilities allow for payment of damages if the deadline is not met.

An excellent Congressional Research Service report on this issue is available on the web from the National Library for the Environment, a service of the Committee for the National Institute for the Environment.


Action In The 104th Congress

Final Action: On July 31, 1996 the Senate passed S. 1936 to amend the Nuclear Waste Policy Act of 1992 by a vote of 63-37. The week before, a filibuster by the Nevada senators was defeated by a 65-34 vote. Both of these tallies fell short of the 67 votes needed to override a promised presidential veto. House leaders had earlier indicated that they would not take up their version of the bill, H.R. 1020, unless the Senate version passed with a veto-proof supermajority. When that did not occur, the bill was effectively dead and was not considered further in the 104th Congress.

Before passing S. 1936, the Senate agreed to a number of amendments intended to make the bill more palatable to the Administration. These included reinstating EPA's authority to issue standards for the permanent repository, several provisions to increase the safety requirements and oversight responsibilities associated with transportation of the spent fuel to the interim site, and a provision eliminating budget priorities that placed interim storage site construction over permanent repository characterization. Like earlier versions of this legislation, S. 1936 would build an interim storage facility at the Nevada Test Site, but it made several changes to the timetable in response to fears voiced by both the Administration and the Nevada delegation that the interim facility would become a de facto permanent one. Construction was not to begin until December 31, 1998, six months after a positive suitability determination would be made for the permanent repository site at Yucca Mountain. If the permanent site was determined to be unsuitable, then the President would have 18 months to identify another interim site. Otherwise, construction would proceed on the Nevada interim site.

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Early in 1995, Sen. J. Bennett Johnston (D-LA) introduced S. 167 to revise the Nuclear Waste Policy Act (NWPA) of 1982. The former chairman of the Senate Energy committee has been a long-time proponent of finding a permanent repository for civilian high-level nuclear waste and was the principal architect of both the original NWPA legislation and the 1987 amendments that designated Yucca Mountain as the sole site for characterization. Johnston's proposal did not receive support from the nuclear energy industry because it did not require the DOE to take possession of their spent fuel beginning in 1998 nor did it allow the industry to sue DOE for any delays beyond that time. Such provisions are contained in the later bills, H.R. 1020 and S. 1271. The industry argues that DOE has a contractual obligation to begin accepting spent fuel shipments in 1998, but DOE argues that the contracts to accept spent fuel were predicated on having a permanent repository built. The date for construction of the permanent waste repository has slipped over the years from 1998 to 2010, and new legislation is likely to push that date back even farther into the next century.

The current NWPA statute does not allow the siting of an interim facility until approval has been granted for a permanent site in order to ensure that a "temporary" site did not become a de facto permanent one. Furthermore, the interim site cannot be located in the same state as the permanent facility, a provision demanded by Nevadans angry at being the host state for a permanent repository. Both H.R. 1020 and S. 1271 would remove those provisions and expedite the construction of an interim facility at a site adjacent to Yucca Mountain on the DOE's Nevada Test Site. The two bills differ in the capacity of the interim facility. In H.R. 1020, an initial temporary storage site would be ready in 1998 to accept 10,000 metric tons with a second facility ready by 2001 that could accept 40,000 metric tons. S. 1271 calls for 20,000 metric tons and 100,000 metric tons, respectively. Under current DOE plans, the permanent repository is supposed to hold 70,000 metric tons of commercial spent fuel. It is anticipated that the total amount of commercial spent fuel to be generated over the lifetime of existing nuclear power plants is approximately 86,000 metric tons.

In December of 1995, momentum was building for passage of major revisions to the NWPA , and the House was expected to vote on H.R. 1020, introduced by Rep. Fred Upton (R-MI), before the Christmas break. In the Senate, the Committee on Energy and Natural Resources conducted a hearing on December 14th to examine a similar bill, S. 1271, introduced by Sen. Larry Craig (R-ID). The action came at a time when the Department of Energy (DOE) program to characterize a repository site at Yucca Mountain, Nevada, was experiencing large budget cuts as proponents and opponents alike pointed to the high costs and limited progress of the repository program. Both bills would further reduce funding for the repository site by shifting funding priority toward building an interim storage site for spent nuclear fuel adjacent to Yucca Mountain and toward building the infrastructure necessary to allow shipments to begin in 1998. But, the nuclear waste bills eventually were forced to take a back seat to budget wranglings and the government shutdowns.

In March of 1996, the Senate Energy and Natural Resources Committee reported an amended version of S. 1271 out of committee but action on the Senate floor was delayed by the threat of a filibuster by the Nevada delegation and a guaranteed Presidential veto. On July 9, Senators Craig and Murkowski introduced S. 1936 as the vehicle for a floor fight with the Nevada senators. It was identical to the amended S. 1271, and its introduction signaled that proponents had the 60 votes necessary to end a filibuster (but not the 67 needed to over-ride a veto). The Nevadans pledged to eat up as much floor time as they could through parliamentary maneuvers, banking on the leadership's concern over the limited time remaining in the session for appropriations measures and other big-ticket items like welfare reform.

The Nevada delegation has vigorously opposed the siting of a permanent repository in their state, and they further oppose the siting of an interim storage facility. Several pieces of legislation have been introduced -- H.R. 496, S. 544, and H.R. 1924 -- intended to redirect the current DOE effort, but none have received much support outside the Nevadans themselves. H.R. 1924, introduced by Rep. Barbara Vucanovich (R-NV) would move the interim facilities away from the Nevada Test Site and site them instead at existing DOE facilities located at Hanford, Washington and Savannah River, South Carolina. This proposal received strong opposition from both the Washington and South Carolina delegations, highlighting the fundamental problem with all proposed solutions for commercial nuclear waste -- nobody but nobody wants it.


Contributed by David Applegate and Kasey Shewey White, AGI Government Affairs; and Jenna Minicucci and Shannon Clark, AGI Government Affairs Interns

Sources: the Congressional Record and the Environmental and Energy Study Institute Weekly Bulletin, Washington Post


Please send any comments or requests for information to the AGI Government Affairs Program at govt@agiweb.org.

Last updated December 29, 1998


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