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High-level Nuclear Waste Legislation Update (9-6-00)

For the last five years, Congress has been trying to pass legislation to build a temporary centralized storage facility for high-level nuclear waste adjacent to the proposed permanent repository at Yucca Mountain, Nevada, thus speeding up the process of moving spent fuel currently stored at 81 individual reactor sites.  Such legislation failed to pass in the last two Congresses, lacking the votes in the Senate to override a promised presidential veto.  The current Congress has nearly abandoned the idea of a temporary storage facility for an alternative proposal made by Energy Secretary Bill Richardson for the Department of Energy to take title of spent nuclear fuel without moving it and pay for on-site storage at commercial nuclear power plants until a permanent repository is completed.  This offer was dependent on the utilities agreeing to drop their lawsuits pending against the U.S. Department of Energy (DOE) for failing to meet its obligation, as dictated by the Nuclear Waste Policy Act of 1982, to remove waste from individual sites by 1998. Although Richardson's proposal was first received with a decidedly lukewarm response on Capitol Hill and from the nuclear industry, it has since gained considerable momentum and is now the principal proposal being considered in the Senate.

Most Recent Action
On August 31st, the U.S. Court of Appeals for the Federal Circuit upheld a lower court ruling that would allow nuclear power companies to sue DOE to recoup costs associated with storing spent fuel.  The court ruling is a setback to the DOE's hopes to negotiate with individual utilities out of court on a course of action for managing the spent fuel until a permanent repository is ready to receive waste -- DOE had hoped that a July 20th contract agreement with PECO Energy Company would acts as the template for these cases.  Now that the Court of Appeals has ruled in favor of the utilities, they can return to the lower court to determine financial damages.  According to a Washington Post article, a statement released by the DOE said, "We remain persuaded that the quickest and most efficient way to get relief to those utilities that are incurring costs as a result of our delay is accepting spent nuclear fuel is direct negotiation between individual utilities and the department."   (9/6/00)

On August 22, 2000, the National Research Council (NRC) released a report detailing ways DOE could better process the high-level nuclear waste at its Savannah River Site.  The 354 square-mile site near Aiken, South Carolina produced plutonium and tritium for nuclear weapons.  Solid nuclear waste that has been separated out and vitrified leaves behind a salt containing high levels of cesium, strontium, plutonium and other radioactive materials.  The NRC report examined DOE's alternatives for processing the high-level salt.  Originally, the agency planned to use an in-tank precipitation process, but the program was discontinued in 1996 after it produced too much benzene and the risk of explosion was found to be too great.  The NRC reported that DOE needed to consider its four alternatives to in-tank precipitation better before making a decision.  Carolyn Huntoon, DOE’s Assistant Secretary for Environmental Management said, "We now anticipate identifying a preferred technology alternative in June 2001."  Future techniques at Hanford, Washington, and other DOE sites may be affected by the choice and results of high-level waste processing at the Savannah River Site.         (8/24/00)

106th Congress Action
It looks as if the issue of high-level nuclear waste storage is dead in Congress until after the November elections.  On May 2nd, the Senate failed by three votes to override the presidential veto on S. 1287, the legislation that would allow the Department of Energy to begin moving spent fuel to the Yucca site as early as 2007, still several years ahead of the current repository completion date of 2010.  On April 25th, President Clinton vetoed the Nuclear Waste Policy Amendments Act of 2000, S. 1287, citing concerns about the limited power the EPA would have under the legislation to set standards and supervise the moving of high-level nuclear waste to the Yucca Mountain site.  According to President Clinton: "It is critical that we develop the capability to permanently dispose of spent nuclear fuel and high-level radioactive waste, and I believe we are on a path to do that. Unfortunately, the bill passed by Congress does not advance these basic goals" A White House release from Vice President Al Gore stated: "This legislation was rejected because it does nothing to assist in conducting the best scientific research into the propriety of the Yucca Mountain site, as a long-term geologic repository for high level nuclear waste."

And speaking of the November elections, Republican presidential candidate George W. Bush issued the following statement on May 9th: "I believe sound science, and not politics, must prevail in the designation of any high-level nuclear waste repository. As president, I would not sign legislation that would send nuclear waste to any proposed site unless it's been deemed scientifically safe. I also believe the federal government must work with the local and state governments that will be affected to address safety and transportation issues."

S. 608, Nuclear Waste Policy Act of 1999/S. 1287, Nuclear Waste Policy Amendments Act of 2000
On March 24, 1999, the Senate Energy and Natural Resources Committee held a hearing on S. 608, a bill introduced by Chairman Frank Murkowski (R-AK) earlier in the month entitled the Nuclear Waste Policy Act of 1999.  Witnesses included the entire Nevada congressional delegation and representatives from the Department of Energy (DOE), the U.S. Nuclear Regulatory Commission, the nuclear energy industry, state utility regulators, and an environmental group.  S. 608 seek to amend the Nuclear Waste Policy Act of 1982 by creating an interim high-level nuclear waste storage facility adjacent to the proposed site for a permanent repository at Yucca Mountain in Nevada.  Such a plan is not allowed under the 1987 amendments to the 1982 act, which made Yucca Mountain the sole site being characterized for a permanent repository.  In this 1987 amended version, DOE, as a concession to Nevada, was barred from siting the interim facility in the same state as the permanent repository.

The Nevadans gave testimony emphasizing that an interim storage facility would not reduce the number of sites where nuclear waste is currently stored but simply add one more to the existing 71 sites, since all active commercial reactors would continue to house spent fuel on-site for some time. The Nevadans also played the transportation card, noting that the waste en route to Nevada would pass within a mile of 50 million Americans in 43 states. On a different note, Senator Pete Domenici (R-NM) expressed his support for S. 608 but also announced his plans to introduce legislation that would mandate an international review to develop a future spent fuel strategy. Stating that geologic disposal has proven to be a nearly impossible task, he is proposing that a high-energy accelerator be built to transmute the high-level waste and at the same time produce tritium and medical isotopes. The accelerator would be offered to any state that is willing to take an interim storage facility.

Originally scheduled for May 19, 1999, the Senate Committee on Energy and Natural Resources postponed the markup of S. 608 (due partially to a veto threat from the White House) until after the Memorial Day recess allowing alternatives, such as those discussed during the committee hearing, to be drafted and reviewed by the committee.  Murkowski rescheduled the markup for June 16, 1999, when he unveiled an overhaul of S. 608.  The new bill, S. 1287, abandons the idea of an interim storage facility at the Yucca Mountain site in favor of the alternative proposal made by Energy Secretary Bill Richardson. Richardson's proposal would require DOE to take title of spent nuclear fuel without moving it and pay for on-site storage at commercial nuclear power plants until a permanent repository was completed. This offer was dependent on the utilities agreeing to drop their lawsuits pending against DOE for failing to meet its obligation, as dictated by the Nuclear Waste Policy Act of 1982, to remove waste from individual sites by 1998. Although Richardson's proposal was first received with a decidedly lukewarm response on Capitol Hill and from the nuclear industry, it has since gained considerable momentum.  Murkowski's incorporation of Richardson's proposal is now the principal scheme being considered in the Senate.

S. 1287 authorizes the federal government to take possession of waste at individual sites, requires congressional approval for any fee increases to waste producers, authorizes early receipt of waste at the Yucca Mountain permanent repository facility when construction begins, requires transportation regulations to meet standards used for the recently opened Waste Isolation Pilot Plant (WIPP) facility in New Mexico (for more on WIPP, see AGI update on that subject), and charges the Nuclear Regulatory Commission (NRC) with determining radiation standards for ground water around the Yucca Mountain site. This new version also includes the establishment of a division in DOE to research alternatives to deep-burial storage and technology to reduce the radiation level of waste, an effort that has been championed by Sen. Pete Domenici (R-NM). A counter proposal by committee ranking Democrat Jeff Bingaman (NM), referred to as "Draft 10", is essentially the same as the revised version of S. 608 except that is retains the Environmental Protection Agency's (EPA) authority to designate radiation water standards.

Whether the EPA or the NRC sets the radiation standards was the major issue of contention at the committee markup. Murkowski argued that EPA's requirement that the ground water at storage sites meet the drinking water standards is "unrealistic." Bingaman argued that the EPA has been charged with setting these standards since 1982 and that S. 608 is "stripping them (EPA) of their authority." Bingaman's proposal would give the EPA until 2001 to set radiation water standards for Yucca at which time a cabinet level council would review the regulations.  If the EPA's regulations are found unacceptable, the authority to set these standards will be transferred to the NRC.

The committee mood was tense as Bingaman and other Democrats expressed frustration at receiving the final markup version of S. 608 at midnight the night before and Sen. Larry Craig (R-ID) and other Republicans expressed dismay and frustration at the number of concessions made to the minority in the revised S. 608 version. Bingaman asked for a vote on his "Draft 10" in order to get it on record even though he admitted he knew it would not pass.  The committee voted down Bingaman's "Draft 10" by a 13-7 vote. On June 24, 1999, the Committee reported (S. Rpt. 106-98) favorably on S. 1287, which was placed on the Senate calendar for floor debate.

Just when many people were claiming that S.1287 was died, Murkowski, supported by Senator Trent Lott (R-MS), was able to bring the bill back to the limelight.  Murkowski and Richardson met in January 2000 to negotiate language that would be acceptable to the Administration and help to move towards a federal repository for high-level nuclear waste.  According the National Journal's Greenwire, "The bill would complete the siting and licensing of the Yucca Mountain site in Nevada and provide a mechanism for the resolution of lawsuits over the Energy Department's failure to meet a Jan. 31, 1998, deadline for storing nuclear waste."

On January 31, 2000, Senators Trent Lott (R-MS) and Murkowski pushed for a cloture vote on S. 1287 in order to cut off debate and move to a final Senate vote. They were forced to withdraw the motion on February 2 in part due to a claim made by the leadership of the Senate Environment and Public Works Committee that they have jurisdiction over some aspects of the bill, and any vote on the bill should be delayed until the Committee could review and report on the legislation. Previously, the bill, introduced by Senate Energy and Natural Resources Committee Chairman Murkowski, was stalled over a provision that would require the Nuclear Regulatory Commission (USNRC) to set radiation standards instead of the Environmental Protection Agency (EPA). President Clinton, supported by Secretary of Energy Bill Richardson, threatened to veto the bill if it came to his desk with this provision.

On February 4, 2000, Murkowski circulated a substitute version of S. 1287, in response to concerns raised by the Senate Environment and Public Works Committee over jurisdiction and by the Administration over the bill's removal of the U.S. Environmental Protection Agency (EPA) from a key oversight role.  Murkowski and Secretary of Energy Richardson met several times over the last few months to revise the legislation so as to avoid strong opposition. Negotiations ultimately broke down over the EPA role after it was too late to stop the vote. On February 10, 2000, the Senate passed the bill in a 64-34 vote, three votes shy of the 67 needed to overcome a promised presidential veto.  The bill was then sent to the House for consideration.

S. 1287 would allow the Department of Energy to begin moving spent fuel to the Yucca site as early as 2007, still several years of the current repository completion date of 2010.  On March 22, 2000, the House of Representatives voted 253-167 in favor of S. 1287, well short of the two-thirds majority needed to override the promised presidential veto.  Nevertheless, House Speaker Dennis Hastert (R-IL).  Sen. Strom Thurmond (R-SC) and Sen. Frank Murkowski (R-AK) tried in vain to gather the needed votes to make S. 1287 veto proof. Senate Majority Leader Trent Lott (R-MS) has promised a swift vote to override the President's veto, but the bill failed to garner a veto-proof majority when it passed the Senate in February.

H.R 45, Nuclear Waste Policy Act of 1999
Several bills have been introduced in the 106th Congress addressing nuclear waste storage. Companion bills S. 608 and H.R. 45 were each introduced as the Nuclear Waste Policy Act of 1999. Both bills seek to amend the Nuclear Waste Policy Act of 1982 by creating an interim high-level nuclear waste storage facility adjacent to the proposed site for a permanent repository at Yucca Mountain in Nevada. Such a plan is not allowed under the 1987 amendments to the 1982 act, which made Yucca Mountain the sole site being characterized for a permanent repository. As a concession to Nevada, the Department of Energy (DOE) was barred from siting the interim facility in the same state as the permanent repository.  Both S. 608 and H.R. 45 differ from earlier bills by changing provisions relating to the funding mechanism for the interim site.

At a hearing on March 12th, Secretary of Energy Bill Richardson testified before the House Commerce Subcommittee on Energy and Power. He expressed the Administration's opposition to H.R. 45 or any similar legislation that sought to establish an interim storage facility. He also discussed his counter proposal by which the Department of Energy would take title to waste at existing sites.  Richardson has visited Yucca Mountain twice since taking office last fall and has vowed: "I am very intent on making my decision based on science, not politics." A summary of the House hearing with links to Richardson's testimony and the chairman's statement is available on this web site along with a summary of an earlier subcommittee hearing on this subject held in February.

In a letter dated February 16, 1999, to Nevada Sen. Richard Bryan (D), President Clinton affirmed that he would veto any legislation that is similar to the ones that passed the Senate and House in the 105th Congress. In addition, Nevada Reps. James Gibbons (R) and Shelley Berkley (D) joined House Resource Committee ranking member George Miller (D-CA) in circulating a letter urging members to oppose H.R. 45.

After passing the House Commerce Subcommittee on Energy and Power on April 14, 1999, the bill passed the full Committee on April 21, 1999,  by a 39-6 margin. The bill includes provisions that would encourage nuclear utilities with pending claims against the government to drop their suits in exchange for Department of Energy (DOE) stewardship of the spent fuel and waives future DOE liability from the utilities if it does not meet the deadlines outlined in the legislation. The stewardship provision is similar to a proposal made by Energy Secretary Bill Richardson earlier this year and the language Senator Frank Murkowski (R-AK) introduced in S. 1287.  In addition, it takes the Nuclear Waste Fund off budget, which may pose problems for the bill as it falls under the jurisdiction of the Budget Committee, whose Chairman John Kasich (R-OH) is "vehemently opposed to exempting trust funds from discretionary spending."  These amendment now forced the bill to be referred to several House Committees -- Budget, Resources, and Transportation and Infrastructure. Because of being referred to several committees, H.R. 45 is basically dead-in-the-water.

Other Legislation in 106th Congress
Also on the table are two bills addressing the utility companies' financial burden of storing waste on site.  S. 683, introduced by Senators Richard Bryan and Harry Reid -- both Democrats from Nevada-- would provide nuclear power companies with money to pay for the temporary storage of nuclear waste at their plants until a permanent storage site is completed. Rep. Merrill Cook (R-UT) introduced a similar bill, H.R. 1309, the Nuclear Waste Protection and Responsible Compensation Act. Cook's bill differs from S. 683 by allowing utilities to pay for on-site waste storage by investing money from consumer fees normally given to the Energy Department for investment in US Treasury bonds. Cook said the bill would save consumers the $4 billion cost of an interim site and would not increase consumer fees. The bill prohibits transportation of high-level nuclear waste until the Nuclear Regulatory Commission issues a final license for permanent disposal of the waste. The bill allows utilities to maximize interest from their annual Nuclear Waste Fund payments and thus creates funds to pay the costs of on-site storage of high-level nuclear waste. Currently, rate payers pay one-tenth of a cent per kilowatt hour of electricity into the Nuclear Waste Fund for the waste disposal program use.

Background and Reports
Yucca Mountain has been the topic of numerous reports, commissions, reports on commission, and reports on reports.  The Environmental Protection Agency (EPA), the National Research Council (NRC), and the Department of Energy (DOE) have been the major producers of these reports.  When Congress established the requirement for site-specific standards, it also directed EPA to commission a study by the National Research Council (NRC) to guide the standards. The resulting report, Technical Bases for Yucca Mountain Standards, was released in 1995.

Even as Congress continues to debate ways to overhaul the high-level nuclear waste disposal program, DOE continues its efforts to characterize the proposed repository site at Yucca Mountain in preparation for a 2001 decision by the President whether to proceed. On December 18, 1998, the Department of Energy released a Viability Assessment of a Repository at Yucca Mountain, which provides an interim report to the President, Congress, and the public on the results from DOE's study of this site adjacent to the Nevada Test Site. The study, begun in 1996, identified no "show stoppers" with respect to the site's suitability for underground storage of high-level nuclear waste. As a result, "work will proceed toward a decision in 2001 whether to recommend the site to the President for development as a geologic repository." The report acknowledges remaining uncertainties on "key natural processes, the preliminary design, and how the site and the design would work together." Tests will continue over the next three years until the 2001 decision.

Technical reviews of the Viability Assessment have sparked a scientific debate over the best approach to designing a repository at Yucca Mountain. An external review of the assessment was commissioned by DOE. The review panel, chaired by Chris Whipple of ICF Kaiser, made clear that DOE had its work cut out for it in the coming years to conduct research, develop appropriate models, and collect data needed to demonstrate site suitability.

A separate review delivered by the Nuclear Waste Technical Review Board -- the independent oversight body for the project set up by Congress in 1987 -- came to similar conclusions. In congressional testimony and in a letter report to DOE, the board congratulated DOE for completing the Viability Assessment, which integrated large amounts of data and set priorities for future work along lines similar to those proposed by the board. Like the Whipple review, the board had concerns over the lack of data supporting critical assumptions in a number of the models and warned against DOE's heavy reliance on expert judgment in areas where data are lacking.

Both reviews raised concerns about the current repository design, which calls for packing the waste in tightly to raise the temperature well above the boiling point of water, thus creating a dry zone around the waste packages. In its letter to DOE, the board argues that such an approach would increase corrosion, adversely affect tunnel stability, and create such drastic changes in the hydrology and geochemistry of the surrounding rock that it would be difficult to reduce uncertainties enough to license the repository. Instead, the board recommends that DOE consider a low-temperature design either through ventilation or by waiting to entomb the waste until after the period of greatest heat production is past.

The U.S. Geological Survey prepared a report for incoming Director Charles "Chip" Groat in late 1998 reviewing the DOE Viability Assessment and addressing the geologic and hydrologic issues related to the Yucca Mountain project. That report was released as USGS Circular 1184: Yucca Mountain as a Radioactive-Waste Repository. It is now available on the USGS website at http://wrgis.wr.usgs.gov/circular/c1184/.

DOE announced separately that additional funding would be provided to the State of Nevada for its own tests. The state has been very opposed to the project since its inception over 15 years ago. Critics recently released a report that they say demonstrates the site's unsuitability for waste storage. The report, Fluid Inclusion Studies of Samples from the Exploratory Study Facility, Yucca Mountain, Nevada, is by geoscientist Yuri Dublyansky of the Siberian branch of the Russian Academy of Sciences. It is based on mineral samples collected in June 1998 from the five-mile long tunnel through the mountain and claims to show evidence for flooding of the mountain by upwelling hot water in the past 12.5 million years. The arguments are similar to ones advanced in the past by former DOE scientist Jerry Szymanski. Those earlier claims were found to be without merit by a 1992 National Research Council study entitled: Ground Water at Yucca Mountain: How High Can It Rise?

In July 1999, DOE released its Draft Environmental Impact Statement (EIS) for the project. According to DOE, "The purpose of the Draft EIS is to consider the possible environmental impacts that may result from the construction, operation and monitoring, and eventual closure of a geologic repository at Yucca Mountain, Nevada for spent nuclear fuel and high-level radioactive waste. The Draft EIS also evaluates the possible impacts of transporting spent nuclear fuel and high-level radioactive waste to Yucca Mountain, as well as the possible impacts of not developing a geologic repository and continuing to store these materials at commercial and DOE sites. The EIS will be important to any future decision on whether to recommend the site for development." The Draft EIS is available in PDF format at http://www.ymp.gov/deis.htm.

On August 18, 1999, the U.S. Environmental Protection Agency proposed site-specific environmental radiation protection standards for the potential high-level nuclear waste repository at Yucca Mountain, Nevada. A comment period on the draft standards closed on November 19, 1999. Once finalized, the standards will be incorporated into U.S. Nuclear Regulatory Commission (USNRC) licensing regulations for the repository. DOE would then be responsible for demonstrating compliance with the standards. The draft standards are available at http://www.epa.gov/rpdweb00/yucca/.  In November 1999, the NRC's Board on Radioactive Waste Management sent a letter report to EPA making the case that the draft standards do not follow the 1995 NRC report recommendations. The letter report is available at http://www.nap.edu/books/NI000205/html/.

On November 1, 1999, the Department of Energy (DOE) released a report regarding the development of accelerator transmutation of waste (ATW) technology.  The report was mandated by a provision in the Fiscal Year 99 Energy and Water Appropriations Act that directed DOE to prepare a road map for developing ATW technology.  The report, which was produced by the DOE Office of Civilian Radioactive Waste Management, identifies technical issues that need to be resolved, proposes a schedule to resolve these issues, and estimates costs of the activities included on the schedule.  The estimated cost of a six-year research and development program is $281 million.  The report also assesses the impacts that ATW technology would have on current programs, notes challenges that might be faced by federal agencies, and comments on possible collaborative opportunities with other nations.  Most notably, the report finds that it would take an estimated 117 years and $280 billion to complete the waste processing of existing high-level commercial and defense waste, and doing so still would not eliminate the need for lower-level nuclear waste storage facilities.  The report is available in PDF format on the DOE homepage at:  http://www.pnl.gov/atw/reporttocongress/.

Researchers from the U.S., U.K., and Japan announced in the August 4, 2000, issue of Science that they have discovered a new crystalline material that is more resistant to radiation and could be used to store or encapsulate high-level nuclear waste. Current storage materials are expected to last approximately 100 years but this new ceramic could double that figure.  The material, erbium zirconate, has a sufficiently disordered structure that is less disturbed by radiation damage; thus, less likely to fail and release waste to the environment.  Previously researchers believed that some highly ordered storage materials could chemically bond with the nuclear waste.  However, recent experiments irradiated both ordered and disordered crystals to find that the ordered ones became amorphous while the disordered one remained intact.   One limitation to the study is that the material has not been tested with real radioactive waste.  Critics noted that before commercial spent fuel -- the bulk of the high-level nuclear waste to be stored in a repository -- could be encapsulated by the material, it would have to be reprocessed; a procedure which is not allowed under current U.S. policy.    (8/4/00)

A synopsis of efforts to pass nuclear waste legislation in the 105th Congress efforts and additional background on high-level nuclear waste legislation are available on the AGI website at: http://www.agiweb.org/legis105/yuccup97.html.



Sources: Congressional Record, Environmental and Energy Study Institute Weekly Bulletin, Washington Post, Greenwire, Energy & Environment Publishing, Las Vegas Review-Journal, and Department of Energy website.

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

Contributed by Margaret Baker, David Applegate, and Kasey Shewey White, AGI Government Affairs; AGI/AIPG Geoscience Policy Intern Sarah Robinson and Audrey Slesinger, and AGI/AAPG Geoscience Policy Intern Alison Alcott.

Last updated September 6, 2000


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