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Summary of Hearings on High-Level Nuclear Waste Disposal (6-14-99)

House Commerce Subcommittee on Energy and Power: February 10, 1999

House Commerce Subcommittee on Energy and Power: March 12, 1999

Senate Energy and Natural Resources Committee: May 19, 1999

Hearing on H.R. 45, the Nuclear Waste Policy Act of 1999
House Committee on Commerce
Subcommittee on Energy and Power
February 10, 1999


Panel 1
Rep. James Gibbons (R-NV)
Rep. Shelley Berkley (D-NV)
Nevada Governor Kenny Guinn (R)
Mayor Kevin Phillips (Caliente, NV)

Panel 2
Dr. Shirley A. Jackson, Chair, Nuclear Regulatory Commission
Mr. Lake Barrett, Acting Director, Office of Civilian Radioactive Waste Mgt. (DOE)
Dr. Jared Cohon, Chair, Nuclear Waste Technical Review Board
Mr. Robert Perciasepe, Assistant Administrator for Air and Radiation, US Environmental Protection Agency
Mr. Stuart E. Schiffer, Deputy Assistant Attorney General for Commercial Litigation, US Department of Justice

Panel 3
Mr. LeRoy Koppendrayer, Commissioner, Minnesota Public Utilities Commission
Mr. John Strand, Chairman, Michigan Public Service Commission
Mr. David Joos, Pres. & CEO, Consumers Energy (on behalf of the Nuclear Energy Institute)
Mr. Richard Abdoo, Chairman & CEO, Wisconsin Electric Power Company
Ms. Joan Claybrook, President, Public Citizen

The hearing, held on February 10th by the House Subcommittee on Energy and Power, was called to solicit opinions on H.R. 45, the Nuclear Waste Policy Act of 1999. This legislation was introduced by Representative Fred Upton (R-MI) on January 6th, the first day of the 106th Congress.

Full written testimony is available from the House Commerce Committee Web Site.

Panel 1
The first panel of witnesses was to consist of the entire Nevada congressional delegation, the governor of Nevada, and the mayor of the city of Caliente (Hon. K. Phillips). Caliente is a Nevada town designated to be the location of a Nuclear Waste Transfer station for the proposed Yucca Mountain repository.

The Nevada senators (Reid and Bryan), detained by the presidential impeachment hearings, were unable to testify as scheduled. Representatives Gibbons and Berkley, along with Governor Guinn all expressed their adamant opposition to not only H.R. 45, but also the entire Yucca Mountain repository program. Rep. Gibbons dramatically stated that H.R. 45 is "a death sentence on Nevada that we cannot live with."

Specific grievances mentioned by the witnesses include:

Mayor Kevin Phillips stood out among the panel as a representative of a Nevada town unopposed to H.R. 45, so long as it were amended to provide special recognition to the State of Nevada and the City of Caliente for performing a significant service to the United States. The city has taken the resigned approach to the siting of Yucca Mountain. They have based their stance upon the assumption that the Yucca Mountain repository will be approved and they are looking for the best possible future plan that incorporates safety and economic benefit.

Panel 2
The second panel consisted of representatives from three government agencies/departments (Dept. of Justice, Dept. of Energy, and Environmental Protection Agency), the Nuclear Regulatory Commission (all five commissioners were present), and the Nuclear Waste Technical Review Board.

Lake Barrett, Acting Director of the U.S. Department of Energy's Office of Civilian Radioactive Waste Management very eloquently composed his testimony to culminate in the DOE's now familiar position; "The Administration opposes H.R. 45." The 'why' of the matter rests on what was emphasized in Barrett's testimony. Mainly, the Administration, while pleased with itself for completing the recently released Viability Assessment (VA) of the site, stresses that the VA should not be used as a preemptive determination of suitability. Not only did Barrett claim that H.R. 45 would do that very thing, he also reasoned that H.R. 45 "could force the focus of our waste management policy from geologic disposal to a short term solution, shifting budget priorities and work effort from our focus on opening the repository as scheduled in 2010."

Dr. Jared Cohon, chairman of the Nuclear Waste Technical Review Board, was called to comment on the Viability Assessment and on H.R. 45. Dr. Cohon made note that H.R.45 involves policy that is outside of the Review Board's technical and scientific expertise. However, he urged that if H.R. 45 is enacted, that it not interfere with, or detract from resources needed for further site testing for the permanent repository at Yucca Mountain. Like Mr. Barrett, Dr. Cohon suggested that the VA should not be viewed as a suitability determination.

The Honorable Shirley Jackson, along with her four co-commissioners, testified on behalf of the Nuclear Regulatory Commission. The NRC is still reviewing the Viability Assessment, and is on schedule to review the license application for Yucca Mountain. from the DOE in 2002. The NRC endorsed H.R. 45 by stating, "that the proposed legislation, H.R. 45, contains the basic elements of an effective and integrated framework for safe management and disposal of spent fuel and high-level radioactive waste."

The Honorable Robert Perciasepe, Assistant Administrator for Air and Radiation within the Environmental Protection Agency, brought an unfavorable message for H.R. 45; "The EPA opposes H.R. 45, and the Administrator would recommend to the President that he veto the legislation if Congress passes it in its current form." The EPA does not feel that H.R. 45's dose-per-year standard of 100 millirems is sufficiently low enough to protect public health. H.R. 45, as reviewed by the EPA, "contains no provision for the protection of groundwater for the Yucca Mountain repository." It also, according to Perciasepe, "directs NRC to assume compliance rather than to evaluate the performance," and, "state or federal laws are simply overridden if they present an obstacle to operating the site."

Mr. Stuart E. Shiffer, Deputy Assistant Attorney General with the U.S. Department of Justice, testified concerning the impending litigation with the DOE regarding Spent Nuclear Fuel and H.R. 45's role in possible future litigation. The Department of Justice, according to Mr. Shiffer, speculated that the changes in time and amount of utility company fee payment, which may result from H.R. 45, may "constitute another breach of contract for which they (utility co.'s) are entitled to damages." Mr. Shiffer stated that the Dept. of Justice also joins the EPA in concerns over the neglect of public health and safety.

Panel 3
The last panel was composed of four utility company representatives and, incongruently, the only non-profit environmental advocacy spokesperson. LeRoy Koppendrayer, commissioner of Minnesota Public Utilities Commission, testified on behalf of the Nuclear Waste Strategy Coalition. John Strand, chairman of Michigan Public Service Commission, testified on behalf of the National Association of Regulatory Utility Commissioners. David Joos, President and CEO of Consumers Energy, testified on behalf of The Nuclear Energy Institute. Richard Abdoo, Chairman and CEO, testified on behalf of Wisconsin Electric Power Company. These four gentlemen essentially raised the same concerns in their testimonies. All agree that H.R. 45 should be enacted as a timely and effective way to deal with nuclear waste. They feel that consumers are unfairly paying millions into the Nuclear Waste Fund without substantial returns for their payments. They are dismayed by the Department of Energy's failure to uphold the contractual date of January 1, 1998 to begin removal of Nuclear Waste from nuclear power plants around the country. Mr. Strand went so far as to suggest that if the Department continues to fail in meeting deadlines then "congress should consider removing the authority and responsibility of waste management from DOE." Mr. Abdoo made specific mention that his company, Wisconsin Electric Power Co., did not seek to get involved in litigation with the DOE for its breach of contract, following the suggestion by the Court of Appeals that the utilities "pursue remedies under the contract." However, Mr. Abdoo claimed his company's pursuit of a remedy with the cooperation of the DOE has been unsuccessful.

Ms. Claybrook, representing Public Citizen, shared the same concerns as Mr. Perciasepe with the EPA. She emphasized the extreme danger Public Citizen foresees in the shipment of high-level nuclear waste on American highways and through American cities, citing incidences of past accidents where hazardous materials were involved. In contrast to her fellow panel members -- utilities companies that claim they will have to shut down operation if waste is not removed -- Ms. Claybrook stated that, "no emergency exists that requires the immediate removal of nuclear waste from its current storage facilities at commercial reactors."

Subcommittee on Energy and Power
Committee on Commerce
U.S. House of Representatives
March 12, 1999

Secretary of Energy Bill Richardson was the lone witness at this hearing, which was the second held by this subcommittee in the past two weeks on the Department of Energy's program to develop a geologic repository to permanently hold the nation's commercial spent nuclear fuel and defense high-level nuclear waste. The subcommittee has legislation pending to amend the Nuclear Waste Policy Act of 1982 to allow the siting of an interim surface facility to hold the waste until a permanent repository is ready. The legislation, H.R. 45, would site the facility at the Nevada Test Site adjacent to the proposed repository site at Yucca Mountain. The Clinton Administration opposes H.R. 45, which was introduced by Rep. Fred Upton (R-MI), and its companion bill (S.608) introduced in the Senate by Frank Murkowski (R-AK).

Richardson faced 14 subcommittee members. Also present was Rep. Jim Gibbons (R-NV) whose district includes the Yucca Mountain site. Although not a member of the Commerce Committee, Gibbons was seated on the dais and given the opportunity to make an opening statement and submit questions for the record. Members in attendance included subcommittee chairman Joe Barton (R-TX) and ranking minority member Ralph Hall (D-TX) as well as the chairman and ranking member of the full Commerce Committee -- Thomas Bliley (R-VA) and John Dingell (D-MI), respectively.

The House Commerce Committee web site database includes Richardson's testimony, opening statements by subcommittee chair Barton and full committee chair Bliley, and a graph showing present and future anticipated expenditures on the Yucca Mountain project.

Opening Statements by Committee Members

In their opening statements, many of the members noted their pleasure at seeing Richardson -- a former member of that subcommittee -- at the helm of DOE and welcomed him back. Most of the members present were co-sponsors of H.R. 45 and expressed their eagerness to see the legislation pass in order to get nuclear waste out of their state. Rep. Dingell expressed his support for interim storage but was the first to raise the challenge of DOE's liability for its failure to begin taking spent fuel from utilities in 1998 as it is obligated to do under the terms of the Nuclear Waste Policy Act of 1982. Noting that the potential liability ran into the billions of dollars, Dingell stated that the full cooperation of the nuclear utility companies was needed to achieve a solution. Rep. Ed Markey (D-MA), a long-time critic of the Yucca Mountain project, decried the nuclear industry's "legislate and litigate" approach, pointing out that H.R. 45 would not replace litigation by the companies against DOE for missing the 1998 deadline. Subcommittee chairman Barton recalled playing softball with Richardson and expressed his desire to recapture the camaraderie and cooperation of those games in dealing with the nuclear waste issue. Rep. Gibbons struck a rather different tone, likening the citizens of Nevada to the Christians being thrown to the lions in Roman times. He argued that spent fuel can be stored safely at nuclear plants and made the case that there is no compelling need to move the waste to a central facility.

Richardson Testimony

In his oral testimony, Richardson noted that DOE's ultimate goal was to site a geologic repository for the nation's high-level nuclear waste, calling such a plan essential to the nation's nuclear nonproliferation goals. While acknowledging that the program had fallen far behind its original schedule, he stated that it was now on the right track and cited several recent accomplishments including the completion of a 5-mile tunnel through Yucca Mountain, which allowed DOE scientists to obtain "real data from the mountain" on water movement. He discussed DOE's Viability Assessment of the Yucca Mountain site, which was released in December 1998. Richardson noted that the assessment found no technical show stoppers but did identify areas where more work was needed, including research into: the presence and movement of water; the effects of water movement on the waste package; and the effects of heat on the site's geologic and hydrologic behavior. He concluded his description of the project by stating that DOE was on target for a decision in 2001 on the site's suitability.

Richardson then went on to discuss the potentially huge liability faced by DOE due to the department's inability to accept spent fuel on the timetable contractually agreed to with the nuclear utility companies consistent with the Nuclear Waste Policy Act of 1982. He noted that commercial spent fuel is currently housed at 72 reactors in 33 states with on-site dry storage at 10 sites in 8 states. He went on to state that the compensation claims made by industry in lawsuits against DOE were greater than the total amount in the Nuclear Waste Fund (supported by a tax on nuclear-generated power), jeopardizing DOE's ability to do its job of establishing a permanent repository.

Richardson stated the Administration's opposition to H.R. 45, arguing that the bill would pre-judge selection of Yucca Mountain as the permanent repository site. He stated that the decision to establish an interim facility should not be made until the completion of scientific work and the ensuing final decision on where the permanent site will be. He also noted that the cost of building an interim storage facility would add $1.5 billion to the total program cost in addition to spending $2-3 billion on transportation before knowing whether the waste would have to be moved a second time. Moreover, he stated that H.R. 45 provided to relief to DOE from the billions of dollars of litigation it currently faces.

He then outlined his proposal for DOE to take title to commercial spent fuel and leave it at the reactor sites where it is currently stored. He described his proposal as a "practical option," easy to implement, and one that would provide a near-term solution to the needs of the utility companies. In return for taking title in accordance with the acceptance schedule in contracts negotiated with the utilities, DOE would receive a waiver from industry liability claims. He estimated that the cost of his proposal would be $2-3 billion between now and 2010. Richardson acknowledged that key questions remained to be answered about his proposal, including how it is to be funded and implemented, who would own the site once DOE took title to the waste, and what sort of contractual obligations would result.

Question and Answer Period

Rep. Dingell emphasized his concern over the liability issue. He placed the estimate of total liability from utility lawsuits at $8.5 billion with more to come. He noted a Justice Department opinion that H.R. 45 could create even more liability and stated that this issue needed to be addressed.

Rep. Bliley asked how Richardson's proposal would deal with reactor sites that do not have any room for additional on-site storage and also asked several questions about the cost of building a Yucca Mountain repository. Specifically, he questioned how DOE would obtain the $10 billion necessary to construct the repository when it was only getting $400 million per year. At this point, Barton introduced a chart showing future annual costs compared with historic funding levels for the program. He expressed concern over the continued use of half the taxes collected in the Nuclear Waste Fund each year for purposes unrelated to its purpose.

Hall asked whether Richardson's proposal would in fact create 72 interim storage repositories in 33 states? Richardson replied that these existing facilities were already licensed and re-emphasized his concern about potential liability costs, noting that the utilities "see the courts moving their way" and do not want to settle. To that, Barton asked whether the President would drop his veto threat if liability considerations were added to H.R. 45, adding that "we're closer than you think" and "I've put on the table a real deal." Richardson responded that H.R. 45 still would pre-judge the Yucca Mountain site and that "we still have to let science dictate the solution." He re-emphasized that DOE cannot make a decision on the site until 2001.

Barton then asked the Secretary to take pad and pencil in hand and join him in making a set of calculations. First he asked him to sum $10.7 billion (cost of permanent repository construction), $1.5 billion (cost of interim storage facility called for in H.R. 45), and $3 billion (cost of transportation to interim site) totaling $15.2 billion. He then asked him to take the annual inflow of money to the Nuclear Waste Fund of $660 million and multiply that by the 12 years between 1999 and 2010, totaling $7.9 billion. He then added the $8 billion currently in the Nuclear Waste Fund to get $15.9 billion. He then asked Richardson whether 15.9 is a bigger number than 15.2, thus making the case that there was enough money to build both the interim and permanent facilities.

Markey questioned Barton's math, noting that as nuclear power declines, the money coming into the Nuclear Waste Fund will decline. He joined previous speakers in decrying the use of the fund for other purposes, accusing the Budget and Appropriations Committees of viewing the Commerce Committee as their tax collector. He then urged his colleagues to declare war on the Appropriations Committee. Markey proceeded to suggest an analogy to the current litigation by the nuclear utilities, asking Richardson to imagine if the aerospace industry told Congress 15 years ago that we could build spaceships to Pluto. When Congress agreed to pursue such a mission, the companies sold 100 non-refundable tickets, then when it turned out not to be feasible, "they would sue us!" He reminded his colleagues that Congress picked Nevada, not the experts, not the scientists, and "now we are being sued!" After being thanked by the chair for his monologue, Markey asked why radiation release standards for the Waste Isolation Pilot Plant transuranic waste repository in New Mexico were set at 15 millirems per year, but they are being set at 100 millirem per year for Yucca Mountain. Richardson answered that the sites were different, and emphasized yet again that "we want to have a geologic decision."

Rep. Richard Burr (R-NC) asked Richardson how he would handle dual licensing situations where part of the spent fuel at a reactor site is federal and part still utility-owned. Richardson replied that those details remained to be worked out. Rep. Charlie Norwood (R-GA) asked whether nuclear waste can be moved safely to which Richardson replied in the affirmative. Norwood then asked whether DOE had any scientific basis for making the decision to keep the waste at the current interim sites. Richardson replied that the sites are certified by the Nuclear Regulatory Commission. Norcross also asked about transmutation of waste in a high-energy accelerator, quoting estimates that the volume of high-level waste could be reduced to 6 percent. Barton interjected by inserting into the record a report from Los Alamos National Laboratory scientists stating that accelerator-driven transmutation of the nation's high-level nuclear waste would take 65 years and cost $60 billion. Richardson asked Lake Barrett, Acting Director of DOE's Office of Civilian Radioactive Waste Management, to answer the question about volume. Barrett concurred that transmutation could reduce the volume of high-level waste but would dramatically increase the volume of low-level waste.

Rep. John Shimkus (R-IL), whose state has more nuclear power than any other, noted that nuclear power has a rosy future if the nation moves on global warming. He accused the Clinton Administration of "moving the goalposts" with respect to when a decision on siting an interim facility would be acceptable. He quoted testimony by former White House Office of Management and Budget Director Franklin Raines that a decision could not be made before "viability" and noted that it had now been shifted to post-suitability.

Rep. Chip Pickering (R-MS) offered Richardson a compromise whereby DOE takes title to the waste now, then if the Yucca Mountain repository site is found suitable in 2001, that would trigger development of an interim facility at the Nevada Test Site. He asked the Secretary: "If we move in your direction in the first five years, will you move in our direction in the next five years?"

Dingell echoed earlier comments about the Nuclear Waste Fund, stating that it needs to be taken off budget (i.e. part of the general pool of funds available for appropriations) so that it will no longer represent a cookie jar tempting the "hot little hands" of appropriators.

After all the other representatives (except Gibbons) had left, Barton closed the hearing with a lengthy dialogue between himself and Richardson, seeking a bridge between their respective positions and comparing the process to an elephant mating ritual. He noted that both sides shared common goals on building a permanent repository and on the need to use the best science. He stated that the congressional proposal (H.R. 45) faced a veto threat and that the Clinton proposal of interim ownership was not yet in writing. Noting Richardson's request for the members' opinions, he relayed his concern that the proposal cost twice as much as H.R. 45 and does not vitiate the litigation. He stated that he was under pressure from the House leadership and full committee chair to move ahead with legislation in the next two weeks but offered to delay if he saw convergence with the Administration's position.

Richardson responded that the hearing had lowered the temperature of the debate but that deep differences in approach remained. Barton responded that the subcommittee did not like his proposal as a substitute but might like it in combination with interim storage. And on that note, the hearing adjourned.

Hearing on S. 608, Nuclear Waste Policy Act of 1999
Senate Committee on Energy and Natural Resources
May 19, 1999

    The Senate Committee on Energy and Natural Resources held a hearing on S. 608, a bill to build an interim nuclear waste storage facility near the proposed permanent facility at Yucca Mountain, NV.  The Nuclear Waste Policy Act of 1982 required the federal government to remove waste from individual sites by 1998 to a central facility.  Currently 81 sites in the country are storing waste "on site" in lieu of a permanent facility.  Similar legislation for an interim facility to meet the federal government's obligation failed to pass in the last two Congresses, lacking the votes in the Senate to override a promised presidential veto.  With another veto threatening S. 608, Chairman and bill sponsor Frank Murkowski (R-AK) postponed a committee vote until after the Memorial Day recess allowing alternatives, such as that proposed by Sen. Bingaman (D-NM), to be drafted and reviewed by the committee.

Opening Statements
       Chairman Murkowski argued strenuously for construction of an interim "central storage facility" but recognized that the legislation would not be complete, nor satisfactory to industry, without dealing concurrently with several satellite issues.  His concerns included transportation of waste, radiation standards, authorization for early receipts of waste, fee increases, waste disposal alternatives, and settlement fees.

     Senator Bingaman agreed that the government had fallen short of  its obligations to remove the waste from sites, but that alternatives to an interim facility must be considered in the face of the administration's threatened veto.  He has been working with Secretary of Energy Bill Richardson on alternatives that would have the federal government take possession of the waste at the individual sites.  Bingaman supported postponing markup until after Memorial Day to put together an alternative package.

     Senator Craig (R-ID) and Senator Dorgan (D-ND) both supported the interim measure proposed in S. 608 but stressed the continued need for a permanent solution.  Craig stated that the proposed facility makes "no sense for Nevada, but sense for the country."  Craig also noted that many of these state and private facilities are holding federal waste from defense systems and national labs, and the federal government has a responsibility to remove this waste.

     Senator Domenici (R-NM) expressed his concerns about the trend in popular opinion against nuclear energy, saying that the country is "tying up nuclear power" based on the insignificant issue of temporary storage.  He argued this country will never totally divest itself of nuclear power as the navy is stocked with nuclear-powered vessels and thus as a country we need to address the issues of using nuclear energy and not avoid them.  He cited other countries' policies of creating interim storage facilities and then conducting research for a permanent solution.   Domenici has written an amendment that follows this international example by creating an office in the Department of Energy to research the issue of permanent storage and other post-processing technology to reduce the radioactivity of waste.   Senator Lincoln (D-AR)  supported Domenici's efforts at exploring recycling possibilities.  Senator Lincoln and Senator Johnson (D-SD) both cited examples in their constituencies that are running out of room to store waste.

    Sen. Bunning (R-KY) pleaded for the committee to learn from the contamination of the soil and water from a state storage site at Maxi-Flats, AK and other similar sites around the country forced to store waste on site.  He argued for a central interim storage facility that meets federal standards and benefits from the most recent technological advances to avoid repeating past mistakes like that of Maxi-Flats, AK.

Please send any comments or requests for information to the AGI Government Affairs Program.

Contributed by David Applegate, AGI Government Affairs, and Sarah Robinson and Christi Snedegar, AGI Government Affairs Interns

Posted March 23, 1999; Last Updated June 15, 1999

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