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High-level Nuclear Waste Legislation Update (10-22-02)

For twenty years, the Department of Energy (DOE) has been working to develop a central repository for spent nuclear fuel and defense-related high-level radioactive waste. Since 1987, the only site under consideration has been Yucca Mountain in southern Nevada adjacent to the Nevada Test Site. Over the years, DOE has spent more than $6 billion characterizing the site's suitability for long-term containment of nuclear waste. With the repository not scheduled to open until 2010 at the earliest, spent nuclear fuel is presently stored at eighty-one commercial reactor facilities around the country as well as a number of DOE sites that also contain high-level radioactive waste. The original Nuclear Waste Policy Act of 1982 required that DOE remove waste from the commercial reactor sites by 1998. When that deadline was not met, several utilities brought lawsuits against the federal government to recoup the cost of waste storage beyond this date. Congress repeatedly has considered legislation to build a temporary centralized storage facility for high-level nuclear waste adjacent to the proposed permanent repository at Yucca Mountain, but the legislation has failed to pass in the last three Congresses or to gain enough Senate support to override a presidential veto. In the current session of the 107th Congress, attention has shifted to presidential approval of the site and the formal opposition of the State of Nevada, which Congress must override this summer. The override vote will signal a transition to a licensing and construction phase that is likely to be fraught with legal roadblocks.

Most Recent Action
The Department of Energy has announced that is will miss the deadline for submitting a license application to the U.S. Nuclear Regulatory Commission (NRC). Under the Nuclear Waste Policy Act of 1982, DOE has 90 calendar days after a repository site is accepted to submit a license application. It comes as no surprise that the agency was not able to meet this deadline -- DOE has had extensive contact with NRC throughout the site selection process that outlined the hundreds of requirements for the site to be licensed. Missing the deadline, however, does not mean that the Yucca Mountain project is in questioned. A Nuclear Energy Institute fact sheet on this topic notes that ". . . failure to meet the deadline would neither affect DOE's authority to submit the application later nor subject the department to punitive action." DOE has indicated that it might take more than a year before the agency will be ready to submit a license application. (10/22/02)

On July 9th, the Senate passed S.J. Res 34 approving Yucca Mountain as the nation's repository for high-level nuclear waste. After a 60-39 vote to proceed with the measure, the chamber passed the resolution by voice vote. The Senate vote, along with the House's passage of H.J. Res. 87 in May, overrides the Nevada governor's objection to the site and effectively ends the congressional consideration. The Yucca Mountain project now moves into the licensing phase (under the jurisdiction of the U.S. Nuclear Regulatory Commission), which is certain to include a significant number of legal challenges (call it the litigation phase). The repository's planned opening date for acceptance of waste is 2010. (7/10/02)

The state of Nevada filed a lawsuit against the Department of Energy (DOE) on June 6th, claiming that the environmental impact statement (EIS) for the Yucca Mountain nuclear storage facility failed to meet the National Environmental Policy Act's (NEPA) requirements.  This is the fourth lawsuit to be filed by the state regarding the Yucca Mountain issue and the third lawsuit filed against the DOE.  As Congress draws closer to overriding Nevada Governor Kenny Guinn's (R) notice of disapproval for the Yucca Mountain site, Nevada is searching for alternative means to halt the construction of the site. (6/7/02)

The Senate Committee on Energy and Natural Resources voted 13-10 in favor of S.J.Res. 34, which would override Guinn's notice of disapproval for the Yucca Mountain site. The votes against the override included nine Democrats and Sen. Ben Nighthorse Campbell (R-CO). The full Senate has until July 25th to pass the measure. During May, the committee conducted three hearings concerning the feasibility of using Yucca Mountain as the site for a central nuclear waste repository. Transportation of the waste has been the central focus of these hearings with concerns expressed about the safety of moving nuclear waste around the country. As reported in E&E Daily, the Senate is likely to follow the House and override Guinn's veto of the Yucca Mountain site. (6/5/02)

The House Subcommittee on Energy and Air Quality held a hearing on April 18th to consider House Joint Resolution 87, which would override the Nevada Governor's objection to the Yucca Mountain site selection. Introduced by subcommittee chairman Rep. Joe Barton (R-TX), the resolution requires a simple majority in both chambers of Congress to reject Nevada's appeal. At the hearing, Secretary of Energy Spencer Abraham emphasized that site selection was not a final step in repository development and would lead to additional studies to answer remaining questions about the repository. The General Accounting Office and Nuclear Waste Technical Review Board also provided testimony on the status of DOE site investigations. Both of Nevada's representatives and Sen. John Ensign (R) testified against the resolution. All testimony is available from the subcommittee web site. The witnesses appeared to agree only that the government does not have a clear Plan B should Yucca Mountain not be selected, although the Skull Valley Goshute tribe in Utah has proposed a site for a temporary storage facility. According to Secretary Abraham: "Congress and the president go back to square one." Rep. Ed Markey (D-MA), who opposes the resolution, raised the concern that the large number of waste shipments to Nevada would result in a large number of targets for terrorists: "It's not a short distance from box cutters to box cars." According to E&E Daily, the House is expected to vote on the resolution by early May.  On April 23rd, the House Energy and Air Quality Subcommittee passed H.J.Res. 87 by a 24-2 vote.  Two days later the House Committee on Energy and Commerce voted in favor of the resolution 41-6. On May 8th, the full House of Representatives voted 306-117 in favor of H.J.Res. 87. (5/8/02)

On April 8th, Nevada Gov. Kenny Guinn submitted his Notice of Disapproval to Congress for the proposed Yucca Mountain waste site.  Congress has 90 days to override the governor's objection with a resolution providing official approval for Yucca Mountain.  Senate Majority Whip Harry Reid (D-NV) and Guinn lead the Yucca opposition, arguing that the site selection is based on bad science and highlighting the dangers of nuclear waste transport from 130 temporary sites.  "The fact that the Yucca Mountain decision was made without any analysis of the transportation risks to the 123 million Americans in states through which this dangerous waste will travel is the dirty little secret," stated Guinn.  He continued by saying, "[Americans] have not been told the dangers to them, their children and future generations from shipping thousands of radioactive waste through their neighborhoods, alongside their schools, rivers, parks and through their downtown and industrial areas."  Guinn stated that, "if the political system fails us, the legal system will not."   (4/12/02)

Current Activities
Interim storage for high-level nuclear waste is a topic that comes and goes from the congressional rhetoric but has remained in the forefront for many energy companies.  Since the early 1990s, several interim storage plans have been offered up as possibilities.  One of these proposed sites in on the Skull Valley Goshute Indian Reservation in Utah.  A decision by the federal Surface Transportation Board (STB) has brought the proposed nuclear repository closer to becoming reality.  The $3.1 billion facility would be large enough to hold all of the nation's spent nuclear fuel until a permanent DOE repository is constructed.  As reported in the February 21, 2001, issue of the Salt Lake Tribune, the STB approved construction of a train-to-truck transfer loop and rail line to deliver waste to the proposed facility.  The approval statement cited claims by the nuclear power industry that there is an "urgent need to build and operate its own transportation and storage facilities for the interim storage of [spent nuclear fuel] because it is unlikely that the DOE will develop a permanent repository in the near future."  The STB also claimed that the rail project and waste facility would benefit the economy of the reservation.  The Goshute tribe is supportive of the repository, which is pending U.S. Nuclear Regulatory Commission approval.  Utah Governor Mike Leavitt (R) and the owners of a nearby salt plant have opposed the plan. Lawsuits are expected. (2/23/01)

Another interim storage facility that is often brought up in congressional hearings and legislation is a facility at or near the proposed-permanent Yucca Mountain site.  Senator Frank Murkowski (R-AK) has been a vocal supporter of this idea and has included it in proposed-energy legislation in the past.  His energy bill for the 107th Congress (S.388) includes provisions to promote growth in the nuclear power industry but does not include a provision on the on-site interim storage proposal. (3/19/01)

Besides the discussion on the actual storage facility, the congressional discussion on a high level nuclear waste facility has focused on human health and safety.  Yucca Mountain would have to meet a series of standards to help ensure the safety of people living in the region, the environment, and national security.  Even as the Senate underwent a party switch in May 2001, the Environmental Protection Agency (EPA) released the final public health and environmental radiation protection standards for Yucca Mountain on June 6th.  These standards set the levels of radiation exposure that are acceptable from groundwater, air, and soil in the areas surrounding the repository.  Originally proposed in the summer of 1999, the stringent standards would limit human exposure from all sources of radiation to less than 15 millirem per year with a separate groundwater standard of 4 mrem per year to be measured 11 miles from the site.  According to the EPA site on the standards, "At this level, no more than 3 people in 10,000 have a lifetime risk of developing a fatal cancer."  Now that these standards have been released, it will be up to DOE to meet them as they develop the technical and scientific plan for the depository.  Secretary of Energy Spencer Abraham is expected to make the formal recommendation later this year for President Bush to move ahead in the licensing process for Yucca Mountain.

The same day that the standards were unveiled, the National Research Council released its report, entitled Disposition of High-Level Waste and Spent Nuclear Fuel: The Continuing Societal and Technical Challenges.  It notes that the major challenges facing a "safe and secure storage and permanent waste disposal are societal."  The international committee responsible for the report did not focus solely on Yucca Mountain but on the general option of geological disposal for nuclear waste.  In general, the report states that as long as the process is responsive to technological changes and it uses a "reversible decision-making process" that geological disposal is a viable option. (6/12/01)

The Department of Energy (DOE) was seeking public comments to aid Energy Secretary Spencer Abraham in making a recommendation to President Bush concerning the suitability of Yucca Mountain as a nuclear waste repository.  The comment period closed on October 19th.  A list of suggested topics for public comment included: views concerning adequacy of the Yucca Mountain Preliminary Site Suitability Evaluation (PSSE) and other DOE documents in determining site suitability, whether or not the Secretary should recommend the site to the President if the site is likely to meet radiation protection standards developed by the U.S. Environmental Protection Agency, any reasons preventing the preparation and submission of a construction license application to the U.S. Nuclear Regulatory Commission (USNRC), suggestions on how to meet the DOE's legal obligations to begin accepting nuclear waste if the Secretary should not proceed, and any other comments of relevance to the development of Yucca Mountain and Secretary Abraham's recommendation.

Statements made by Senate Assistant Majority Leader Harry Reid (D-NV) help to make apparent the level of controversy surrounding the Yucca Mountain public hearings in Nevada.  Reid complained that the original September 20th deadline for public comment did not allow for adequate input and that the public hearing locations were not spread out enough. The DOE timeline was attacked by anti-Yucca groups who say that there is insufficient time to review the new report and that the hearings come at the wrong time in the decision process.  Senator Reid urged the president to ensure Secretary Spencer Abraham's attendance at the remaining hearings concerning the Yucca Mountain Project.  Secretary Abraham has been criticized by some for not attending previous hearings.  Additional opposition to the project has surfaced due to the recent terrorist attacks.  Diane D'Arrigo, the radioactive waste project director for the Nuclear Information and Resource Service (NIRS), referred to the Yucca Mountain repository as "a Disneyland for terrorists."  There are two sides to this security debate, however.  The opposition claim that one storage site could spell disaster, while supporters argue that storing all waste in one place could eliminate targets across the country. (9/13/01)

In a October 23, 2001 news release, the U.S. Nuclear Regulatory Commission (NRC) announced that the agency concurs with the proposed site recommendation guidelines developed by the Department of Energy.  According to the announcement, the NRC's concurrence is "conditional on DOE's agreement to notify NRC of any changes to the draft final guidelines, including any changes to the supplemental information, and its agreement to retransmit the revised rulemaking package to the Commission, if any substantive changes are made, for a determination as to whether re-concurrence is needed."  Now that the NRC has signed off on the guidelines, the White House Office of Management and Budget (OMB) will review the site recommendations before Secretary of Energy Spencer Abraham gives his recommendation to the President on moving forward with the Yucca Mountain project. After receiving the secretary's recommendation, the president must then decide whether to proceed. (10/26/01)

A draft report from the General Accounting Office (GAO) concludes that the Department of Energy's timelines for the project are unrealistic and not based on adequate data. In particular, the report asserts that the project's principal contractor, Bechtel SAIC, has informed DOE that at least four years of additional work are required to address various unresolved issues before obtaining a presidential site recommendation or applying for a license from the U.S. Nuclear Regulatory Commission can proceed. Such a delay would push the repository's opening date well back from the currently planned 2010 target. Energy Secretary Spencer Abraham, who is expected to officially recommend the site to the president early in 2002, has called the GAO report "fatally flawed," accusing the agency of being heavily influenced by Senate Assistant Majority Leader Harry Reid (D-NV), who asked GAO to conduct the study. For his part, Reid has referred to its findings as "the beginning of the end" for the project. GAO, the investigative arm of Congress, provides assessments of federal programs in support of the legislative branch's oversight role. The report, a draft of which was released to The Washington Post, is available at http://www.gao.gov after its official release on December 11, 2001. (12/3/01)

On January 10th, Energy Secretary Abraham informed Nevada Governor Kenny Guinn and the Nevada Legislature of his intent "to recommend to the President that Yucca Mountain be approved as the site for the Nation's first geologic repository for spent nuclear fuel and high-level radioactive waste." Reflecting the times, the Secretary's letter argued that the consolidation of nuclear waste would "enhance protection against terrorist attacks". He also asserted that the chosen site was "scientifically sound and suitable." This action, mandated by the Nuclear Waste Policy Act, signals that the recommendation to the president will be forwarded within 30 days. If the president accepts the recommendation, then the governor has an opportunity to veto the decision. It then falls to Congress to vote on whether or not they will sustain the governor's veto. Unlike a presidential veto, however, only a simple majority of both houses is required to override the Nevada veto. Such a vote is virtually assured in the House but is less certain in the Senate, where the Democratic leadership -- most notably Majority Whip Harry Reid (D-NV) -- is strongly opposed to the site's selection. Governor Guinn's initial response to the Secretary's letter was succinct: "This decision stinks." (1/11/02) If the disapproval is overturned, then the Secretary of Energy has 90 days to submit a license application to the U.S. Nuclear Regulatory Commission. This series of actions could be over in a matter of months or it could take years: the Secretary does not have to announce his decision right at 30 days after informing the governor, the president can delay making his own recommendation indefinitely, and Senate leaders can make "90 calendars of continuous session" a lot longer than 90 days. Moreover, a recent General Accounting Office report (see below) suggested that DOE would not be ready to submit a license application for several years. (2/2/02)

The Nuclear Waste Technical Review Board, an independent oversight body for the Yucca Mountain project, weighed in on the Energy Secretary's site recommendation in a January 24th letter to Congress and the Secretary. The letter states that "the Board's view is that the technical basis for the DOE's repository performance estimates is weak to moderate at this time." It goes on to state, however, that judgments regarding the site recommendation or the level of technical certainty needed to make such a decision "go beyond the Board's congressionally established mandate." The 28-page letter details the technical areas where additional questions remain to be answered. A PDF version of the letter is available at www.nwtrb.gov/reports/2002ltr.pdf. (2/8/02)

Energy Secretary Spencer Abraham made the official recommendation on February 14th that the Yucca Mountain site is a suitable high-level nuclear waste repository to President Bush.  Abraham noted in his letter to Bush: "I have considered whether sound science supports the determination that the Yucca Mountain site is scientifically and technically suitable for the development of a repository.  I am convinced that it does. The results of this extensive investigation and the external technical reviews of this body of scientific work give me confidence for the conclusion, based on sound scientific principles, that a repository at Yucca Mountain will be able to protect the health and safety of the public when evaluated against the radiological protection standards adopted by the Environmental Protection Agency and implemented by the Nuclear Regulatory Commission."  The following day Bush made his official recommendation to Congress.  On January 10th, Abraham notified Nevada Governor Kenny Guinn by letter of his intentions to recommend the Yucca Mountain site to Bush. The state of Nevada strongly opposes the Yucca Mountain site.  Senator Harry Reid  (D-NV), the Assistant Majority Leader, responded to the president's decision by noting that "there are many geological and technical uncertainties."  Additional information is available in a Geotimes Web Extra.   (2/20/02)

On February 19th, Nevada Governor Kenny Guinn (R) issued a lawsuit on behalf of the city of Las Vegas and Clarke County against President George W. Bush, Energy Secretary Spencer Abraham, and the Department of Energy in response to the recent approval of Yucca Mountain as a suitable high-level waste disposal site.  The lawsuit claims that the Nuclear Waste Policy Act of 1982 was violated because the state did not receive the environmental impact statement for review prior to the recommendation.  The state of Nevada is allotted 30 days to review the recommendation by the Nuclear Waste Policy Act of 1982, however, the brisk presidential approval occurred only one day after Secretary Abraham's recommendation.  (2/25/02)

Senate Majority Leader Tom Daschle (D-SD) stated that a Senate vote on the Yucca Mountain nuclear repository is unavoidable, a shift from his statement last year that, "as long as we're in the majority, it's dead."  The change is due to the expeditious nature of the procedures required by the Nuclear Waste Policy Act of 1982. Taking advantage of a partisan opportunity, Sen. John Ensign (R-NV) commented on a potential Senate vote by saying, "if Tom Daschle keeps his word, the state of Nevada will not have nuclear waste."  On the state side, Nevada raised $6 million for the Nevada Protection Fund to fund a television ad campaign opposing the Yucca Mountain project.  Nevada Governor Kenny Guinn (R) has requested an additional $10 million for the campaign.  In Clarke County, home to Las Vegas, the commissioners pledged as much as $4 million of county funds and as a result will postpone some county improvement projects. Meanwhile, the nuclear industry has raised $30 million to support the Yucca Mountain nuclear repository waste site. Guinn is expected to reject the Department of Energy and Bush Administration's approval of the Yucca Mountain site by April 15.  (4/3/02)

Background
The proposed permanent repository for high-level nuclear waste at Yucca Mountain in southern Nevada has been a topic of discussion for almost two decades.  The search for federal repository site ended in 1987 when Congress amended the 1982 Nuclear Waste Policy Act (NWPA) making Yucca Mountain the only proposed site to receive further study.  Many are opposed to the Yucca Mountain repository, citing concerns over the site's proximity to Las Vegas, transportation of waste to the site, potential seismic activity, and groundwater infiltration.  Opposition from Nevada politicians and technical difficulties have caused construction delays, moving the original 1998 opening date to 2010.

Creating a large permanent waste storage facility has involved all three branches of government.  Several power companies have sued the DOE to recoup the cost of storage beyond the date that the agency had promised removal.  Bills from the last three Congresses have confronted the issues of interim storage, acceptable levels of radiation, long-term monitoring, and waste transportation.  President George W. Bush issued the following statement while still on the campaign trail:  "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."

Several bills were 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 sought to amend the NWPA of 1982 by creating an interim high-level nuclear waste storage facility adjacent to the site of the permanent repository at Yucca Mountain.  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.  Facing strong opposition from Nevadans and citizens concerned about waste transport through populated areas, Congress abandoned the idea of a temporary storage facility.  A revised version of the Senate bill (S. 1287) incorporated provisions suggested by former Energy Secretary Bill Richardson to require DOE to take title of spent nuclear fuel without moving it and pay for on-site storage at commercial nuclear power plants until the permanent repository was completed.  This offer was dependent on the utilities agreeing to drop lawsuits pending against DOE for failing to meet the obligation dictated by the NWPA of 1982 to remove waste from individual sites by 1998.  The bill passed out of Congress but was vetoed by President Clinton.  Also considered in the 106th Congress were bills addressing utility companies' financial burden of storing waste on site.  See the AGI 106th Congress update for more information.


Sources: E&E Daily, Greenwire, Salt Lake Tribune, Washington Post, Environmental Protection Agency website, Department of Energy website, Library of Congress, Nuclear Energy Institute, and National Academies.

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

Contributed by AGI/AAPG Spring 2001 Intern Mary H. Patterson, AGI/AAPG Fall 2001 Intern Catherine Macris, AAPG/AGI Spring 2002 Intern Heather R. Golding, AGI/AIPG Summer 2002 Intern Sarah Riggen, and Margaret A. Baker and David Applegate, AGI Government Affairs Program.

Posted March 19, 2001: Last Updated on October 22, 2002


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