    [House Hearing, 106 Congress]
    [From the U.S. Government Publishing Office]

                      THE NUCLEAR WASTE POLICY ACT OF 1999

    =======================================================================

                                    HEARINGS

                                   before the

                        SUBCOMMITTEE ON ENERGY AND POWER

                                     of the

                             COMMITTEE ON COMMERCE
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED SIXTH CONGRESS

                                 FIRST SESSION

                                       on

                                    H.R. 45

                                   __________

                        FEBRUARY 10, and MARCH 12, 1999

                                   __________

                               Serial No. 106-17

                                   __________

                Printed for the use of the Committee on Commerce

                          U.S. GOVERNMENT PRINTING OFFICE
    55-151 cc                     WASHINGTON : 1999

                                COMMITTEE ON COMMERCE

                         TOM BLILEY, Virginia, Chairman

    W.J. ``BILLY'' TAUZIN, Louisiana     JOHN D. DINGELL, Michigan
    MICHAEL G. OXLEY, Ohio               HENRY A. WAXMAN, California
    MICHAEL BILIRAKIS, Florida           EDWARD J. MARKEY, Massachusetts
    JOE BARTON, Texas                    RALPH M. HALL, Texas
    FRED UPTON, Michigan                 RICK BOUCHER, Virginia
    CLIFF STEARNS, Florida               EDOLPHUS TOWNS, New York
    PAUL E. GILLMOR, Ohio                FRANK PALLONE, Jr., New Jersey
      Vice Chairman                      SHERROD BROWN, Ohio
    JAMES C. GREENWOOD, Pennsylvania     BART GORDON, Tennessee
    CHRISTOPHER COX, California          PETER DEUTSCH, Florida
    NATHAN DEAL, Georgia                 BOBBY L. RUSH, Illinois
    STEVE LARGENT, Oklahoma              ANNA G. ESHOO, California
    RICHARD BURR, North Carolina         RON KLINK, Pennsylvania
    BRIAN P. BILBRAY, California         BART STUPAK, Michigan
    ED WHITFIELD, Kentucky               ELIOT L. ENGEL, New York
    GREG GANSKE, Iowa                    THOMAS C. SAWYER, Ohio
    CHARLIE NORWOOD, Georgia             ALBERT R. WYNN, Maryland
    TOM A. COBURN, Oklahoma              GENE GREEN, Texas
    RICK LAZIO, New York                 KAREN McCARTHY, Missouri
    BARBARA CUBIN, Wyoming               TED STRICKLAND, Ohio
    JAMES E. ROGAN, California           DIANA DeGETTE, Colorado
    JOHN SHIMKUS, Illinois               THOMAS M. BARRETT, Wisconsin
                                         BILL LUTHER, Minnesota
                                         LOIS CAPPS, California

                       James E. Derderian, Chief of Staff

                       James D. Barnette, General Counsel

          Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                     ______

                        Subcommittee on Energy and Power

                          JOE BARTON, Texas, Chairman

    MICHAEL BILIRAKIS, Florida           RALPH M. HALL, Texas
    CLIFF STEARNS, Florida               KAREN McCARTHY, Missouri
      Vice Chairman                      THOMAS C. SAWYER, Ohio
    STEVE LARGENT, Oklahoma              EDWARD J. MARKEY, Massachusetts
    RICHARD BURR, North Carolina         RICK BOUCHER, Virginia
    ED WHITFIELD, Kentucky               FRANK PALLONE, Jr., New Jersey
    CHARLIE NORWOOD, Georgia             SHERROD BROWN, Ohio
    TOM A. COBURN, Oklahoma              BART GORDON, Tennessee
    JAMES E. ROGAN, California           BOBBY L. RUSH, Illinois
    JOHN SHIMKUS, Illinois               ALBERT R. WYNN, Maryland
    HEATHER WILSON, New Mexico           TED STRICKLAND, Ohio
    JOHN B. SHADEGG, Arizona             PETER DEUTSCH, Florida
    CHARLES W. ``CHIP'' PICKERING,       RON KLINK, Pennsylvania
    Mississippi                          JOHN D. DINGELL, Michigan,
    VITO FOSSELLA, New York                (Ex Officio)
    ED BRYANT, Tennessee
    ROBERT L. EHRLICH, Jr., Maryland
    TOM BLILEY, Virginia,
      (Ex Officio)

                                      (ii)

                                C O N T E N T S

                                   __________
                                                                       Page

    Hearings held on:
        February 10, 1999............................................     1
        March 12, 1999...............................................   159
    Testimony of:
        Abdoo, Richard A., Chairman and CEO, Wisconsin Electric Power
          Company....................................................   110
        Barrett, Lake H., Acting Director, Office of Civilian
          Radioactive Waste Management, Department of Energy.........    49
        Berkley, Hon. Shelley, a Representative in Congress from the
          State of Nevada............................................    28
        Claybrook, Joan, President, Public Citizen...................   115
        Cohon, Jared L., Chairman, Nuclear Waste Technical Review
          Board......................................................    55
        Gibbons, Hon. Jim, a Representative in Congress from the
          State of Nevada............................................    24
        Guinn, Hon. Kenny C., Governor, State of Nevada..............    18
        Jackson, Hon. Shirley Ann, Chairman, Nuclear Regulatory
          Commission, accompanied by Greta Dicus, Commissioner; Nils
          Diaz, Commissioner; Edward McGaffigan, Commissioner; and
          Jeffrey Merrified, Commissioner............................    43
        Joos, David W., President and CEO, Consumers Energy, on
          behalf of the Nuclear Energy Institute.....................   104
        Koppendrayer, Hon. LeRoy, Commissioner, Minnesota Public
          Utilities Commission, on behalf of the Nuclear Waste
          Strategy Coalition.........................................    94
        Perciasepe, Robert, Assistant Administrator for Air and
          Radiation, Environmental Protection Agency.................    58
        Phillips, Hon. Kevin, Mayor, City of Caliente, Nevada........    33
        Richardson, Hon. Bill, Secretary, Department of Energy.......   176
        Schiffer, Stuart E., Deputy Assistant Attorney General,
          Commercial Litigation Branch, Civil Division, Department of
          Justice....................................................    65
        Strand, Hon. John G., Chairman, Michigan Public Service
          Commission, on behalf of the National Association of
          Regulatory Utility Commissioners...........................    99
    Material submitted for the record by:
        Abdoo, Richard A., Chairman and CEO, Wisconsin Electric Power
          Company:
            Letter dated March 1, 1999, enclosing response for the
              record.................................................   137
            Letter dated March 15, 1999, enclosing response for the
              record.................................................   151
        Angell, John C., Assistant Secretary, Congressional and
          Governmental Affairs, Department of Energy:
            Letter dated April 9, 1999, enclosing responses for the
              record, of Lake H. Barrett.............................   223
            Letter dated June 10, 1999, enclosing responses for the
              record, of Hon. Bill Richardson........................   242
        Berkley, Hon. Shelley, prepared statement of.................   214
        Cohon, Jared L., Chairman, Nuclear Waste Technical Review
          Board, letter dated March 5, 1999, enclosing response for
          the record.................................................   135
        Colvin, Joe F., President and Chief Executive Officer,
          Nuclear Energy Institute, letter dated March 9, 1999, to
          Hon. John D. Dingell, enclosing response for the record....   138
        Department of Justice, response to question of Hon. John D.
          Dingell....................................................   240
        Guinn, Hon. Kenny C., Governor, State of Nevada, letter dated
          March 12, 1999, enclosing response for the record..........   152

                                     (iii)

    Material submitted for the record by--Continued
        Hilton, Cynthia, Executive Director, Association of Waste
          Hazardous Materials Transporters, prepared statement of....   133
        Jackson, Hon. Shirley Ann, Chairman, Nuclear Regulatory
          Commission:
            Letter dated March 11, 1999, to Hon. Joe Barton,
              enclosing response for the record......................   141
            Letter dated March 18, 1999, to Hon. Joe Barton,
              enclosing response for the record......................   148
        Joos, David W., President and CEO, Consumers Energy, response
          to questions of Congressman Barton.........................   223
        Koppendrayer, Hon. LeRoy, Commissioner, Minnesota Public
          Utilities Commission, letter dated March 4, 1999, to Hon.
          Joe Barton, enclosing response for the record..............   139
        Perciasepe, Robert, Assistant Administrator for Air and
          Radiation, Environmental Protection Agency:
            Letter dated March 11, 1999, enclosing response for the
              record.................................................   152
            Letter dated March 25, 1999, enclosing response for the
              record.................................................   154
        Schiffer, Stuart E., Deputy Assistant Attorney General,
          Commercial Litigation Branch, Civil Division, Department of
          Justice, responses to questions of Hon. Joe Barton.........   240
        Strand, Hon. John G., Chairman, Michigan Public Service
          Commission, on behalf of the National Association of
          Regulatory Utility Commissioners, letter dated March 5,
          1999, enclosing response for the record....................   136

                                      (iv)

                      THE NUCLEAR WASTE POLICY ACT OF 1999

                                  ----------

                          WEDNESDAY, FEBRUARY 10, 1999

                      House of Representatives,
                                 Committee on Commerce,
                              Subcommittee on Energy and Power,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 10:30 a.m., in
    room 2322, Rayburn House Office Building, Hon. Joe Barton
    (chairman) presiding.
        Members present: Representatives Barton, Stearns, Largent,
    Norwood, Rogan, Shimkus, Wilson, Shadegg, Pickering, Ehrlich,
    Bliley (ex officio), Hall, McCarthy, Sawyer, Markey, Pallone,
    Gordon, Wynn, Strickland and Dingell (ex officio).
        Also present: Representative Upton.
        Staff present: Joe Kelliher, majority counsel; Kevin Cook,
    majority professional staff member; and Sue Sheridan, minority
    counsel.
        Mr. Barton. The Subcommittee on Energy and Power hearing on
    H.R. 45, the Nuclear Waste Policy Act 1999, will come to order.
    Let the record show there are two members present so that the
    hearing can begin.
        Today the Subcommittee on Energy and Power will hear
    testimony on H.R. 45, the Nuclear Waste Policy Act of 1999.
    This is the third Congress in a row to consider nuclear waste
    legislation. The legislative goals remain the same. First,
    accelerate acceptance in recognition of Federal court
    decisions. They found the Department had an unconditional
    obligation to begin acceptance of commercial spent nuclear fuel
    more than a year ago. Second, strengthen the repository by
    assuring adequate funding for site characterization,
    construction, and operation. Third, protect the consumers by
    halting the diversion of consumer fees to fund other Federal
    programs. It is my earnest hope that this Congress will be able
    to enact legislation that achieves these three goals.
        Three years ago Federal courts found that the Department
    has an unconditional obligation to begin acceptance of
    commercial spent nuclear fuel on January 31, 1998. That date
    has come and gone, and acceptance has not begun.
        The Department has been slow to realize the significance of
    that court decision, a decision it accepted since it did not
    seek a rehearing or appeal the decision to the Supreme Court.
        Normally when a Federal agency is found to violate Federal
    law, that agency acts to halt the violation. Unfortunately the
    Department of Energy has taken no action to accelerate
    acceptance and put itself into compliance with the Nuclear
    Waste Policy Act of 1992. That inaction displays indifference
    both to its legal obligations and to the cost of expanding
    onsite storage that result from its failure to act.
        The administration has opposed the legislation considered
    by Congress largely on the grounds the bills made decisions on
    interim storage siting. The administration opposed legislation
    considered by the Senate in 1996 because, ``making an interim
    storage siting decision before a repository viability
    assessment would jeopardize the long-term strategy for the
    ultimate disposal of high-level nuclear waste and undermine
    public confidence in the near-term transportation and storage
    activities''.
        Last December, the Department completed a viability
    assessment that concluded, ``the Yucca Mountain remains a
    promising site for a geologic repository, and work should
    proceed to support a decision in 2001 on whether to the
    recommend the site to the President for development as a
    repository.''
        In the past the Department said interim storage siting
    should only take place after a viability assessment. Now that
    we have the benefit of the viability assessment, we need the
    Department's views on interim storage siting today.
        One reason the administration opposed interim storage
    siting in the past because it believed doing so would undermine
    public confidence in the nuclear waste program. In my view and
    in the view of many others of this subcommittee, it undermines
    public confidence to see the Federal Government turn a blind
    eye to its legal obligations.
        There is more at risk than public confidence in their
    government. A recent court decision raised the prospect of
    significant payments to utilities. There are important
    questions relating to the size of these payments, whether they
    will come from the nuclear waste fund and whether any payments
    will reduce the funding available for the nuclear waste
    program.
        Another reason the administration is opposing an interim
    storage siting is the concern that accelerating acceptance at
    an interim storage facility would somehow undermine the
    repository. There is little disagreement on the need to
    maintain the commitment to a permanent repository, and that is
    one of our legislative goals. I agree with the Clinton
    administration on the importance of the repository and will
    oppose legislation that undermines the permanent repository.
        We need to hear from the Clinton administration on whether
    it intends to offers proposals to accelerate acceptance or
    protect consumers. Over the past two Congresses the
    administration has put forward no proposal on how to achieve
    these two goals. If the administration does not believe the
    goals are important, we need to know. If the Clinton
    administration believes these goals are best achieved in a
    manner different from H.R. 45, we need to know that also.
        I would urge Secretary Richardson of the Department of
    Energy to come to the table and work with the Congress on a
    bipartisan bill that accelerates acceptance, strengthens the
    permanent repository, and protects the consumers. I intend to
    hear from the views of Secretary Richardson on this subject
    directly in the near future. I would point out that he was
    asked to testify today and originally was not able to testify
    because he had travel plans out of the city. Those plans have
    changed, but he has seen fit not to come forward today to
    testify before us.
        I look forward to hearing the testimony of the witnesses
    that are here today, including the delegation of the great
    State of Nevada. In fact, I wonder who is running Nevada today.
    We have got the Governor, both Congressmen and several of their
    local elected officials. I look forward to today's testimony.
        With that, I would recognize the distinguished ranking
    member, the Honorable Ralph Hall of Rockwall for an opening
    statement.
        Mr. Hall. Thank you, Mr. Chairman. I am just trying to tear
    my speech open, hoping I can read it one time to myself before
    I read it to you. With your opening statement, and with the
    witnesses that we have, and with the importance of the
    witnesses--we have some members here--I will ask unanimous
    consent to put my statement in the record, and we will get
    along with the hearing.
        Mr. Barton. Without objection.
        [The prepared statement of Hon. Ralph M. Hall follows:]
    Prepared Statement of Hon. Ralph M. Hall, a Representative in Congress
                            from the State of Texas
        I want to begin by saying Thank you, Mr. Chairman for demonstrating
    an early commitment this Congress to dealing with this pressing issue
    of public trust and safety. I am an original cosponsor of H.R. 45, the
    bill to amend the Nuclear Waste Policy Act of 1982. I was a cosponsor
    of H.R. 1270, the bill which the House passed in 1997, as well.
    Unfortunately, the President rejected H.R. 1270, as well as its Senate
    counterpart, based largely on the argument that we still lacked
    ``objective, science based criteria'' to support a decision to move
    forward. Today we have the results of a viability assessment done by
    the Department of Energy. In addition to this change in availability of
    important data, we are dealing with a new Secretary at the Department
    of Energy, a former member of this very Committee.
        When the President asked that Secretary Richardson be confirmed, he
    sent a letter stating his full confidence in then Ambassador
    Richardson's command of this issue, and also indicated that once
    confirmed, the Secretary would have ``full authority to carry out his
    mission in this area.'' Considering the fact that Secretary Richardson
    has been given this authority, along with the fact that he was not so
    long ago, one of our colleagues on this Committee, I urge that he will
    be called as a witness at a future hearing on this bill. We do want to
    pass H.R. 45, and as a matter of efficiency, we want to avoid an
    unnecessary veto, which might be provoked by the appearance that we
    have not taken the opportunity to hear from the Secretary, and to
    permit him to register any of the concerns of the Administration in a
    timely fashion.
        I am pleased to see that the list of witnesses today seems to
    include most of the important players in resolving this issue, and I
    believe that this hearing will provide all of us on both sides of the
    aisle, an opportunity to update our information banks and to ask
    pressing questions which concern us, as we make one more attempt to get
    a bill signed into law. We owe it to all of our constituents to proceed
    expeditiously, and to avoid any more unnecessary delays in authorizing
    an interim storage facility, and we owe it to the taxpayers to avoid
    future litigation which results in substantial damage awards against
    the Department of Energy for its inability to receive spent fuel, in
    compliance with existing law.
        Another issue of public trust looms over this process as well. We
    know that billions of dollars have been paid to the nuclear waste fund,
    only to have very little money actually going toward the program. By
    passing H.R. 45 we will prevent the future diversion of consumer fees
    to fund other programs. As a matter of good policy, I believe that the
    members of this Committee, on both sides of the aisle, know that
    passing H.R. 45 is the right thing to do. Let's just be certain that we
    take care to present this bill to the full House, and to the Senate, in
    such a way that not only guarantees passage, but which goes further
    than the predecessor bills from previous Congresses. It is time for a
    Nuclear Waste storage bill to finally become law.
        We have a responsibility to act in the interest of sound monetary
    policy, and even more importantly, in the interests of public trust and
    safety. Nuclear power has always been a good source of the electricity
    supply, and we need to ensure this source by acting quickly and
    responsibly to dispose of the radioactive wastes it yields. I urge my
    colleagues, especially those who are new to this subcommittee, to
    listen to the message of the importance of developing an integrated
    system to manage the nation's used nuclear fuel. We must seize this
    opportunity to bring a solution to this problem, sooner rather than
    later.
        Thank you, Mr. Chairman, and I yield back the balance of my time.

        Mr. Barton. The gentleman from Illinois, Mr. Shimkus, is
    recognized for a brief opening statement.
        Mr. Shimkus. Thank you, Mr. Chairman. I, too, would just
    ask permission to insert my opening statement so we can get
    along with this long day I think we have ahead of us.
        [The prepared statement of Hon. John Shimkus follows:]
     Prepared Statement of Hon. John Shimkus, a Representative in Congress
                           from the State of Illinois
        Good morning, Mr. Chairman and to all who have shown up this
    morning. You know, as I began looking over the materials for this
    hearing it seemed to me that I could just change the date on my opening
    statement from two years ago and read it again. I won't do that because
    the statement was really not that good. It certainly was no ``Markey
    masterpiece'' which so often graces this committee. There are, however,
    a couple of lines which I believe are important and still apply today.
    First, ``the time for pointing fingers and playing politics is over.''
    And second, ``I believe the government is only as good as its word.''
        Well two years later the pointing continues and this government's
    word is worthless still. I guess I am not really surprised.
        I supported HR 1270 last term and I am an original cosponsor of HR
    45 this term because my home state generates about 40-45% of its power
    from nuclear reactors. We depend on nuclear power. I also happen to
    think that our nation should not rely only on just one energy source
    such as natural gas, coal or wind to generate power, but all of these
    sources. It is the smart thing to do over the long haul. Just like any
    good retirement portfolio, our energy industry should be diversified.
        I mentioned earlier that I thought about just re-reading my
    statement from two years ago. I did not do that today because that
    would suggest that nothing has changed in this debate over the last two
    years. We all know that is false. Recently we have been graced with a
    new Secretary at the Department of Energy--one who the President
    promised would be able to negotiate with Congress on this issue if
    confirmed by the Senate. Unfortunately, Secretary Richardson can not
    testify today, but this subcommittee is ready and waiting for the
    Secretary to come forward to testify and seek a solution to this
    problem. I don't think that is asking too much. After all, we are only
    asking the Administration to keep their word and allow the Secretary to
    engage on this issue.
        We have also seen the Department's own viability study released on
    December 18 of last year which continues to support the waste site at
    Yucca Mountain. The very study which the Administration claimed they
    were waiting for in order to make a decision on interim storage has
    finally appeared and guess what--it says that things at Yucca are going
    well. So why can't the administration support interim storage now? I am
    sure there will be reasons and I suspect a new hurdle may be erected
    today against HR 45. That would be disappointing. But deep down inside,
    Mr. Chairman, I think we all know that the Administration has moved the
    goal-posts on this issue just one more time. I look forward to
    questioning the witnesses today. I yield back.

        Mr. Barton. The Chair would be happy to recognize the
    distinguished former chairman and the ranking member of the
    full committee, the Honorable Mr. Dingell of Michigan, for an
    opening statement.
        Mr. Dingell. Mr. Chairman, first of all, thank you for
    recognizing me. Second of all, thank you for having the hearing
    on a matter of high priority on the energy and power
    subcommittee's agenda for the new Congress. It has been 2 years
    since this committee addressed DOE's civilian nuclear waste
    program, and a number of events affecting Yucca Mountain
    project have taken place since then there.
        On the positive side of the ledger, there have been
    substantial improvements of the Department's management of the
    repository program. This is particularly encouraging and
    particularly so in the DOE's recently released viability
    assessment found no disqualifying factors for the Yucca
    Mountain site. Perhaps after billions of dollars expended, we
    are looking at the possibility of a more speedy conclusion to
    this question and a resolution of the nuclear waste disposal
    problems.
        However, the program faces significant difficulties still.
    Since the subcommittee's last hearing, the courts have ruled
    that DOE breached its duty to the nuclear utilities. This is a
    matter of considerable concern, I think, to us. Ratepayers have
    still not received anything tangible in return for their
    contributions to the nuclear waste fund. Congressional budget
    rules threaten to constrain program funding, and money from
    this fund has been dissipated in strange ways. With each
    passing year more utilities confront near-term problems in
    maintaining onsite storage capacity, and the possibility of
    this country using nuclear power technology for the generation
    of energy is being significantly impaired by the situation.
        During the 104th and 105th Congresses, the Commerce
    Committee promptly reported legislation to address these
    problems. The legislation was founded on several simple
    principles. One, it is in the national interest of the United
    States to develop an interim storage facility so long as it can
    be funded adequately and so long as it does not undercut the
    permanent repository program. Parenthetically, I will observe
    that these are both matters of concern to us today.
        The nuclear waste fund must be reformed; put an end to
    congressional pilfering of ratepayer contributions for wholly
    unrelated purposes, a matter that I mentioned earlier. It is
    desirable to streamline the program prudently and with regard
    to the integrity of the licensing process, and to minimize
    further delays in the repository program, and to see to it that
    taxpayer interests are fully protected and that the repository
    program must pay its own way.
        These principles were embodied in legislation this
    subcommittee developed in the 104 and 105th Congresses. Those
    bills received broad bipartisan support and were reported with
    wide margins by both the full committee and the House. Most
    unfortunately, however, the legislation died both times in the
    Senate in the face of strong opposition from the Nevada
    congressional delegation and from the administration. Although
    both the House and the Senate reported legislation during the
    last Congress, the leadership on the Republican side failed to
    convene a conference to resolve differences in the bills. As a
    result, the legislation withered on the vine.
        With the passage of time since our previous efforts, any
    legislative effort must be tailored to account for changed
    circumstances. We must carefully examine the adequacy of the
    funding of DOE's program, which will soon require steep
    increases as the project moves into the licensing and
    construction processes. We must also consider the impact of
    recent judicial decisions on this legislation and take care not
    to put the taxpayer at risk as cases already in the judicial
    pipeline move forward. New approaches may be needed to address
    the difficulties created by nuclear utilities facing near-term
    storage problems. Above all, we must not inadvertently
    undermine the permanent repository without which there will be
    no real disposal solution for utility and defense waste
    temporarily stored in dozens of States.
        In closing, Mr. Chairman, I commend you and I commend
    Chairman Bliley for your willingness to hold thorough hearings,
    including receiving the testimony of Secretary Richardson. The
    President has made clear that the Secretary has full authority
    to represent the administration on this issue. And DOE has an
    enormous interest in resolving the multiple lawsuits now
    pending against the Department.
        In past years as a member of this committee, Mr. Richardson
    contributed significantly to the successful resolution of
    difficult nuclear waste issues, and it behooves us to hear from
    him again in his new role as we again consider nuclear waste
    legislation. I hope the administration will assist the
    committee in bringing fresh ideas to the table, identifying
    problems that exist, and enabling us to work together to
    resolve both the long-term and the short-term problems with
    regard to nuclear waste storage.
        Thank you, Mr. Chairman.
        Mr. Barton. Thank you, Congressman Dingell.
        The Chair would recognize the gentleman from Georgia, Mr.
    Norwood, for a brief opening statement.
        Mr. Norwood. Thank you very much, Mr. Chairman. You seem to
    be very popular today. You have drawn quite a crowd.
        Mr. Barton. It is the Nevadans. We all bask in their
    reflected glory.
        Mr. Norwood. I thank you very much for holding this hearing
    today on the nuclear waste problem that currently faces our
    country. You know, I am starting to feel a little bit like Bill
    Murray in Groundhog Day. Here we are at the beginning of a new
    Congress, and here we are having a hearing on Mr. Upton's
    legislation. Something tells me, though, Mr. Chairman, that we
    may be a little more successful this time around.
        Having said this, I really only have one question today,
    and it will be directed to Mr. Barrett, the Department of
    Energy's witness.
        Mr. Barrett, we have heard Secretary Richardson's recent
    encouraging comments regarding the viability assessment that
    has been conducted at Yucca Mountain over the past 15 years.
    Secretary Richardson notes that it, ``reveals no new show-
    stoppers'' and that, ``scientific and technical work should
    proceed.'' Now, knowing this, and knowing that so far this
    administration's only solution to honoring its commitment to
    new spent fuel from nuclear plants in 1998, that is last year
    for those of you who aren't good at math, is the threat of a
    Presidential veto, my question to you, Mr. Barrett, will be
    this: What is Secretary Richardson going to do to ensure that
    the President signs this bill into law this year?
        We have haggled over and resolved the details of this
    legislation 4 years now. The only remaining question is whether
    or not the President will honor a Federal obligation to
    responsibly store this waste at one site instead of dozens.
        Since passage of the Nuclear Waste Policy Act of 1982,
    ratepayers have paid $6.9 billion of which $503 million has
    come from the Georgia ratepayers into this nuclear waste fund.
    The money is there. The wide-ranging support of Congress is
    evident, and a 15-year viability study confirms, as Secretary
    Richardson says, that there are no major problems with moving
    forward. For anyone who has ever visited the site and has known
    that nuclear testing has been going on there for decades, this
    really shouldn't come as any surprise.
        Mr. Chairman, I really again thank you for one more time
    having a hearing on this very important subject, and I look
    forward to all of our panel members. Thank you.
        Mr. Barton. We thank you, Congressman.
        The Chair would recognize the distinguished gentleman from
    Massachusetts Mr. Markey for a brief opening statement.
        Mr. Markey. Thank you, Mr. Chairman, very much, and I want
    to thank you for holding this hearing on this third
    unsuccessful legislative effort to pass the nuclear waste
    legislation in the last 4 years.
        Mr. Barton. The fat lady hadn't sung yet.
        Mr. Markey. I am struck once again by the keen insights
    into the nuclear waste issue from that unlikely quarter, George
    and Ira Gershwin, so let's begin by noting that we have once
    again a reprise of a radioactive Rhapsody in Blue. It is very
    clear plutonium is here to stay, not for a year, forever and a
    day. In time the Rockies may tumble, Nevada may crumble,
    they're only made of clay, but plutonium is here to stay.
        And that, Mr. Chairman----
        Mr. Barton. You were actually better yesterday on the
    floor, Mr. Markey.
        Mr. Markey. Well, you didn't interrupt me yesterday.
        It is still our problem, so let's just consider how best to
    deal with this situation. First of all, when you hear from the
    nuclear utilities that Congress needs to pass legislation to
    build an above-ground interim storage facility and get the
    permanent waste repository program back on track, just remember
    It Ain't Necessarily So. In fact, current law already provides
    legal authority for the construction of such a facility, but it
    bars it from being located in Nevada and limits its size.
        Now, this was done by this Congress in order to prevent any
    interim facility from becoming a de facto permanent storage
    facility. We want to bury it permanently and to protect the
    public integrity of the underground permanent repository
    program. Moreover, current law already provides a framework for
    studying whether Yucca Mountain is scientifically and
    technically suitable to serve as our Nation's permanent waste
    repository and for licensing such a facility For You, For Me,
    Forever More.
        Second, your nuclear utilities may be whining to you that
    they've Got Plenty of Nothin' for all the fees that are paid
    into the nuclear waste fund. But don't forget, they have been
    arguing about the waste with DOE saying that since You Can't
    Take that Away from Me, you have breached our contract and owe
    us damages.
        The courts have botched this dubious argument, and as a
    result, nuclear utility executives are telling each other, I am
    just Bidin' My Time, waiting to receive millions in monetary or
    other damages from the Federal Government. Why then should
    Congress wade into the middle of this litigation for new
    legislation that is most likely to produce A Foggy Day of new
    breach of contract claims, new unrealistic deadlines, and vague
    new legal standards that will tie up an army of lawyers for
    years?
        The argument that Congress needs to legislate because of
    the litigation may work for you, But Not for Me. And just
    remember, if this bill passes, we can no longer rely on having
    Someone to Watch over Me, over you, and over the rest of the
    public to assure that we are all protected from potentially
    lethal exposures to radiation. The EPA will actually be barred
    under this bill from issuing appropriate health-based
    regulation standards, and instead the NRC would be directed to
    issue weaker standards that won't fully protect the public.
    Meanwhile, your constituents will be up in arms Waiting for the
    Train and the trucks to come barreling through their
    neighborhoods carrying a mobile Chernobyl of radioactive waste.
    So don't be surprised if your constituents make a Funny Face at
    you for voting for this legislation.
        It's wonderful, isn't it, how the nuclear utility lobbyists
    have milked this issue for billable hours over the last 4
    years; new swimming pools and wings on their homes built all
    over greater Washington even though they know they don't have
    the votes in the Senate to override President Clinton's veto,
    which is inevitably going to come. This time they are trying to
    push this bill through before Summertime so they can claim, I
    Got Rhythm in the House, and you Senators should bring H.R. 45
    to the floor as soon as possible.
        So I hope that we can, Mr. Chairman, not spend an
    inordinate amount of time on this issue since the votes still
    are not in the Senate in order to override the veto, and I hope
    that the members of our committee will listen closely to the
    bipartisan testimony of the delegation from Nevada. I think
    they speak common sense in asking for real safeguards to be
    maintained on this kind of a project, and I at this point want
    to thank you for extending the extra time to me, and I yield
    back the balance.
        [The prepared statement of Hon. Edward J. Markey follows:]
       Prepared Statement of Hon. Edward J. Markey, a Representative in
                    Congress from the State of Massachusetts
        Thank you, Mr. Chairman.
        As we turn, once more to take up what I predict ultimately will
    become the third unsuccessful legislative effort to pass nuclear waste
    legislation in the last four years, I am struck once again by the keen
    insights into the nuclear waste issue from that unlikely quarter,
    George and Ira Gershwin. Let's begin by noting that what we have here
    is a reprise of a radioactive Rhapsody in Blue.
            It's very clear
            Plutonium is here to stay
            Not for a year
            Forever and a Day.
            In time the Rockies may tumble
            Yucca may crumble
            They're only made of clay
            But Plutonium is here to stay.
        And that Mr. Chairman, is still our problem. So, let's just
    consider how best to deal with this situation.
        First of all, when you hear from the nuclear utilities that
    Congress needs to pass legislation to build an above-ground interim
    storage facility and get the permanent waste repository program back on
    track, just remember: It Ain't Necessarily So. In fact, current law
    already provides legal authority for the construction of such a
    facility, but it bars it from being located in Nevada and limits its
    size. This was done in order to prevent any interim facility from
    becoming de facto permanent storage, and to protect the public
    integrity of the underground permanent repository program. Moreover,
    current law already provides a framework for studying whether Yucca
    Mountain is scientifically and technically suitable to serve as our
    nation's permanent waste repository, and for licensing such a facility
    For You, For Me, For Evermore.
        Second, your nuclear utilities may be whining to you that They've
    Got Plenty of Nothin' for all the fees they've paid into the nuclear
    waste fund. But don't forget, they've been arguing about the waste with
    DOE, saying that since You Can't Take that Away from Me, you've
    breached our contract and owe us damages. The courts have bought this
    dubious argument, and, as a result, nuclear utility executives are
    telling each other ``I'm just Bidin' My Time,'' waiting to receive
    millions in monetary or other damages from the federal government. Why
    then should Congress wade into the middle of this litigation with new
    legislation that is most likely to produce A Foggy Day of new breach-
    of-contract claims, new unrealistic deadlines, and vague new legal
    standards that will tie up an army of lawyers for years? The argument
    that Congress needs to legislate because of the litigation may work for
    you, But Not for Me.
        And just remember if this bill passes, we can no longer rely on
    having Someone to Watch Over Me, over you, and over the rest of the
    public to assure that we are all protected from potentially lethal
    exposures to radiation. The EPA actually will be barred under this bill
    from issuing appropriate health-based radiation standards, and instead
    the NRC would be directed to issue weaker standards that won't fully
    protect the public. Meanwhile, your constituents will be up in arms,
    Waiting for the Train and the trucks to come barreling through their
    neighborhoods carrying a Mobile Chernobyl of radioactive waste. So,
    don't be surprised if they make a Funny Face at you for voting for this
    legislation.
        'S Wonderful, isn't it, how the nuclear utilities lobbyists have
    milked this issue for billable hours over the last four years, even
    though they know they don't have the votes in the Senate to override
    President Clinton's inevitable veto. This time, the industry lobbyists
    are trying to push this bill through long before Summertime, so they
    can then claim, ``I Got Rhythm in the House, and you Senators should
    bring H.R. 45 to the Floor as soon as possible if you wish to remain
    The Man I Love.''
        Now, I suppose this is Nice Work if You Can Get It, but personally,
    I would suggest that we just tell the nuclear industry: Let's Call the
    Whole Thing Off.

        Mr. Barton. The Chair will accept the negative 5 minutes
    back. Congressman Hall and I have caucused and decided you need
    to keep your day job. Except in the lounges of Las Vegas, that
    club act--that dog don't hunt.
        The Chair will recognize the distinguished gentleman from
    California Mr. Rogan for a brief opening statement.
        Mr. Rogan. First, Mr. Chairman, I should say I can name
    that gentleman's opening statement in four notes.
        Mr. Upton. Three.
        Mr. Barton. And these are supposed to be less than 3
    minutes, according to the rules of the committee, the opening
    statements.
        Mr. Rogan. Mr. Chairman, the committee will be delighted to
    know that I have used up probably a lifetime of statements in
    Congress over the last 3 months. I will yield back the balance
    of my time.
        Mr. Barton. The Chair would then recognize the
    distinguished gentleman from Tennessee Mr. Bart Gordon for a
    brief opening statement.
        Mr. Gordon. Thank you, Mr. Chairman.
        Following the brevity that has been demonstrated here, let
    me just quickly say that I think this is an important issue. I
    think we do need to move forward. I am glad we are going to
    have input from our colleagues from Nevada. I can certainly
    understand their concerns, and we take that into consideration,
    try to be as sympathetic as we can to move forward with this
    bill, but it is something that needs to be completed, and I am
    glad you are moving forward with it.
        Mr. Barton. I thank the gentleman for that statement.
        The Chair would recognize the distinguished gentlelady from
    the great State of New Mexico Congresswoman Wilson for a brief
    opening statement.
        Mrs. Wilson. Mr. Chairman, I also yield the balance of my
    time.
        Mr. Barton. The Chair would recognize the distinguished
    gentleman from the great State of Ohio Congressman Sawyer for a
    brief opening statement.
        Mr. Sawyer. Thank you, Mr. Chairman.
        I have a long opening statement, which I will share in
    writing. Let me just emphasize my gratitude during the last
    Congress for the attention that was paid to the question of
    route selection. If this is going to take place, then route
    selection becomes a critically important issue and sometimes
    may have to be done by standards that may not reflect the
    conventional wisdom but ought to reflect public safety. And
    with that I yield back the balance of my time.
        Mr. Barton. I thank the gentleman.
        We would recognize one of our new subcommittee members, the
    distinguished Mr. Ehrlich from Maryland, for a brief opening
    statement.
        Mr. Ehrlich. I yield back, Mr. Chairman.
        Mr. Barton. We then recognize the distinguished gentleman
    from Oklahoma Mr. Largent for a brief opening statement.
        Mr. Largent. I don't have an opening statement.
        Mr. Barton. The Chair would then ask unanimous consent for
    a member of the full committee but not of the subcommittee, one
    of the coauthors of the legislation, Mr. Upton, if he would be
    allowed to give a brief opening statement. Is there objection?
        Mr. Upton. Brief.
        Mr. Barton. Brief.
        The chair would recognize one of the coauthors of the
    bipartisan bill, the Upton-Towns bill, for a brief opening
    statement.
        Mr. Upton. Thank you, Mr. Chairman. I will submit my
    lengthy statement for the record. I would just like to say that
    I look forward to working with you and other members of this
    committee as well as Members of the full House and the Senate
    to moving forward a constructive bipartisan bill that will
    hopefully resolve this issue once and for all so we will not
    have to follow along with what Mr. Markey suggested in terms of
    another year or two with a variety of different folks looking
    for billable hours.
        I would note that this is strongly bipartisan. Mr. Towns
    and I have worked hard to make it that way. And if you look at
    the past Congress that we accepted and worked hard to make sure
    that they stayed in, a number of constructive amendments from
    both sides of the aisle. I remember specifically an amendment
    offered by Karen Thurman with regard to local routes, local
    transportation routes, that local States or States and
    localities could have a greater say in terms of where the high-
    level nuclear waste would go.
        I would also note that we have a good relationship with the
    new Secretary of Energy Mr. Richardson, who did not oppose this
    legislation as a member of the committee when he represented
    New Mexico. We have spent as taxpayers more than $10 billion,
    billion, on this site. Many of our States have paid hundreds of
    millions of dollars into the fund, which has been recaptured to
    promote Yucca Mountain. And I guess at the end I would just
    like to say we are still willing to consider renaming Yucca
    Mountain Markey Mountain to make sure that----
        Mr. Barton. He probably doesn't want that on.
        Mr. Upton. It might help him out there.
        But I yield back the balance of my time and urge swift
    consideration, and thank you again for letting me have this
    opportunity.
        [The prepared statement of Hon. Fred Upton follows:]
      Prepared Statement of Hon. Fred Upton, a Representative in Congress
                           from the State of Michigan
        Mr. Chairman: Thank you for holding a hearing today on H.R. 45,
    legislation I introduced last month designed to address our national
    problem with high-level nuclear waste by providing workable solutions
    for managing spent nuclear fuel. I am looking forward to the testimony
    of the witnesses before us and I'm pleased that we have a strong
    Michigan presence on the panels. (Dave Joos from Consumers Energy and
    John Strand from the Michigan Public Service Commission).
        Some of my colleagues here this morning may remember a similar
    debate on nuclear waste during the last Congress. To refresh everyone's
    minds, in 1997, our subcommittee and full Committee approved H.R. 1270,
    a bill similar to the one before us today. In fact, the vote in the
    full Committee was 42-3. The bill passed the House in October, 1997 by
    a vote of 307-120.
        My interest in this issue stems from my experience in western
    Michigan. A few years ago, the Palisades nuclear power plant in my
    district ran out of storage space in its pools. Because there is
    nowhere to send the spent fuel rods, company officials have had to use
    so-called ``dry cask'' storage in 130-ton concrete and steel containers
    about 100 yards from Lake Michigan. The three other nuclear power
    plants in Michigan and more than 80 in other states may ultimately have
    to follow suit if the federal government doesn't live up to its
    responsibilities.
        The bill I introduced simply states that as the Department of
    Energy works on the permanent site at Yucca Mountain in Nevada, which
    won't be completed until 2010, we should temporarily stack the waste
    outside what is expected to be the final resting place. Our government
    should pursue a policy that puts nuclear waste behind one fence, in one
    location, where we can concentrate all of our resources on making sure
    it is safe. In the meantime, we should also move the waste from
    environmentally sensitive areas like the Great Lakes, Chesapeke Bay and
    other places.
        I am pleased that many members of this subcommittee have joined me
    as cosponsors including Congressmen Towns, Barton, Hall, Bilirakis,
    Burr, Rush, Stupak, Norwood, Shimkus, Gordon, Stearns and Gillmor. The
    total number of cosponsors has already reached 80. Key organizations
    like the National Association of Counties support the bill.
        My legislation minimizes the threat of nuclear waste by placing it
    in a suitable location in the short-term. That threat can be greatly
    reduced still by putting in place a permanent facility which I fully
    support.
        Both dry cask and pool storage are safe but there can be no
    question that centralized storage in one area is better than leaving
    wastes at numerous sites sprinkled across our nation at more than 80
    sites.
        I would urge the Department to work with us as this legislation
    moves through the congressional process, rather than throw up
    roadblocks. I look forward to hearing testimony today from Department
    officials and the Nuclear Regulatory Commission. I'm pleased that the
    Department's Viability Assessment released in December stated clearly
    that ``scientific and technical work at Yucca Mountain should
    proceed.'' Secretary Richardson said that he was very impressed with
    the high quality of the science that went into the development of the
    assessment.
        As I've said in the past, the government must live up to its
    promises and protect the environment by moving nuclear waste to a
    permanent and final resting place. My bill does just that. I hope we
    can consider this legislation in a timely fashion here in the Committee
    and move this needed legislation to the full House in the near future.
        Thank you, Mr. Chairman.

        Mr. Barton. We thank you for your leadership. It is
    thankless, I know that, and you and Congressman Towns are to be
    commended.
        The Chair would recognize Mr. Pallone for a brief opening
    statement if he so wishes.
        Mr. Pallone. Thank you, Mr. Chairman. I will try to shorten
    this.
        Mr. Barton. We are actually going to use the clock, so you
    have got 3 minutes and maybe a little longer if you are in good
    form.
        Mr. Pallone. Thank you, Mr. Chairman.
        I have in the past voted for this bill in committee, but
    since we began this process 4 years ago, circumstances have
    changed. The legislation has failed to be enacted, as you know,
    in two previous Congresses, and litigation has produced
    decisions holding DOE liable for its failure to uphold its
    obligations under the act, and the legislation before us may
    affect the outcome of pending cases or create new causes of
    action.
        I have always been concerned that funding and construction
    of interim storage facilities should not detract from funding
    and constructing a permanent storage facility. I no longer
    believe that the language in H.R. 45 can meet this test.
        Mr. Chairman, I think we must address the nuclear waste and
    spent fuel storage and disposal problems this country faces,
    keeping in mind that the overriding goal of such legislation
    must be to ensure the safe, permanent disposal of spent nuclear
    fuel and high-level radioactive waste. But I am no longer
    convinced that the legislation before us provides the best
    means to help utilities, ratepayers and taxpayers without
    creating new problems.
        About $15 billion has been paid by ratepayers into the
    nuclear waste fund of which only about $6 billion has been
    spent, with the rest having been used for Federal deficit
    reduction. Four years ago, when we drafted the language now in
    H.R. 45, we proposed a user fee to fund the nuclear waste
    program in order to prevent further diversion of payments to
    unrelated purposes and ensure that a permanent repository would
    actually be built. But as I said earlier, DOE has been shown to
    have breached its promise to begin accepting waste by January
    1998 and is being sued because of its failure to meet this
    deadline.
        Pending litigation means that the status of the existing
    fund and the proposed user fee mechanism are even more
    uncertain than ever, and Budget Committee pay-go rules have
    forced changes to the legislation that seem likely to expose
    DOE and taxpayers to new damage claims.
        It is time we right the wrong that has been done to
    ratepayers. We must try to stop solving the Budget Committee's
    problem and trying to rectify ratepayers' problems without
    simultaneously creating additional problems for taxpayers.
        The Budget Committee should solve its own problems and
    balance the budget without diverting funds in the name of
    borrowing from this and other trust funds. To address these
    issues we must sit down and work toward a truly viable solution
    to this very real problem, but this will only occur if we work
    together to craft new language on a broadly bipartisan basis.
        I look forward to hearing from today's witnesses and
    reserve the balance of my time for questions that I would have
    after, Mr. Chairman. Thanks again for having the hearing.
        Mr. Barton. Thank you for that statement, and I would tell
    the gentleman from New Jersey that I agree with much of what
    you said. Thank you.
        Mr. Pallone. Thank you.
        Mr. Barton. I think that makes sense.
        The distinguished gentleman from Arizona Mr. Shadegg, would
    he like to make a brief opening statement?
        Mr. Shadegg. I will waive any opening statement other than
    to say, Mr. Chairman, I have cosponsored this legislation in
    the past. I commend you for holding this hearing, and I intend
    to cosponsor this particular bill again this year.
        Mr. Barton. The Chair seeing no other members present on
    the subcommittee, we will give the requisite number of days for
    all members not present to put written statements into the
    record and those that have made statements the authority to
    revise and extend their remarks.
        [Additional statements submitted for the record follow:]
     Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
        Mr. Chairman, I commend you for moving forward aggressively on this
    issue early in our session. Finding a solution to the problem of high-
    level nuclear waste is one of the most important challenges facing this
    country, and therefore it is one of the most important priorities for
    our Committee.
        For the past half a century, nuclear energy has played a major role
    in our lives, from ensuring our national security, to furthering the
    frontiers of science, to providing us with a reliable source of
    electrical power. Nationwide, nuclear energy is the source of
    approximately twenty percent of the electricity generated in this
    country. Some states rely on nuclear power even more--in my home state
    of Virginia, 43 percent of the electrical power generated comes from
    four nuclear units at the North Anna and Surry power stations. Without
    a central repository for the permanent disposal of the radioactive
    materials from these facilities, we are forced to provide temporary
    onsite storage for these materials.
        The debate over nuclear waste is not just about what to do with the
    products of past activities and operations--it is very much a debate
    about our future as well. Any significant reduction of our current
    nuclear generating capacity, either due to an unwieldy licensing
    procedure at the front end of the process or a bottleneck over the
    disposal of spent fuel at the tail end of the process, will require us
    to replace that existing generating capacity with some other source of
    power. It would be difficult to replace the 20 percent of generating
    capacity that comes from nuclear power. If we have to replace this
    power with fossil fuel sources, the result will be added emissions. For
    both economic and environmental reasons, it is vital that we take steps
    to preserve our existing nuclear generating capacity.
        Yet, despite the clear benefits we all enjoy from nuclear power, a
    permanent solution for the spent reactor fuel and other high-level
    waste from nuclear activities continues to evade our grasp. In the
    early 1980s, Congress and the President made a commitment to the
    American people that the federal government would construct a permanent
    underground repository for the disposal of spent fuel and other high-
    level radioactive waste. The Department of Energy was directed to begin
    acceptance of spent fuel at the end of January last year. As we all
    know, the Department was unable to meet that 1998 deadline. While the
    Department is making commendable technical progress on the Yucca
    Mountain site, the current schedule would not allow for acceptance of
    spent fuel until--at the earliest--the year 2010. That is over 12 years
    behind schedule. It is not surprising that a number of utilities have
    brought suit over this failure of the federal government to live up to
    its obligation.
        And that is really why we are here today, Mr. Chairman. We are here
    to make sure the federal government keeps the promise it made to the
    American people back in 1982. We have to make sure that the utility
    ratepayers who have deposited billions into the Nuclear Waste Fund get
    what they paid for--timely acceptance and disposal of the spent reactor
    fuel.
        We should do nothing that will slow down the Department's progress
    on the permanent repository at Yucca Mountain. But if the permanent
    repository cannot be ready until the year 2010, we urgently need to
    find an interim solution that will allow DOE to begin acceptance of
    spent fuel at an earlier date. I believe that H.R. 45 will meet that
    objective.
        Mr. Chairman and members of this Committee, let us build on the
    progress we made during the 105th Congress. H.R. 1270, a bill very
    similar to the one you are considering today, was passed by an
    overwhelming bipartisan majority of the House, and the Senate did
    likewise with a similar bill. Now that the Department of Energy has
    completed a positive viability assessment, we have all the more reason
    to move forward with this legislation as soon as possible.
        Mr. Chairman, I appreciate your holding this hearing today and look
    forward to the testimony of our witnesses.
                                     ______

    Prepared Statement of Hon. Cliff Stearns, a Representative in Congress
                           from the State of Florida
        Thank you, Mr. Chairman, I am pleased that we are holding this
    hearing today to obtain feedback on the Nuclear Waste Policy Act,
    sponsored by Chairman Barton. I am a cosponsor of this important
    legislation.
        In Florida, we have five nuclear units which provide about 19
    percent of the state's electricity generation. The benefits of this
    fuel source are clear: the use of nuclear energy has reduced Florida's
    carbon dioxide emissions by 96.7 million metric tons since 1973.
        However, these benefits have not come without a price. Since 1983,
    consumers of Florida's nuclear-generated electricity have contributed
    over $649 million to the federal Nuclear Waste Fund, This fund was to
    finance nuclear waste management beginning in January 1998. However,
    the Department of Energy's failure to meet the January 1998 deadline to
    begin storing used nuclear fuel clearly violates the federal agency's
    contract with electric utilities operating Florida's nuclear power
    plants.
        I understand that DOE has stated that the agency will not accept
    used fuel without a disposal or storage facility. This act will allow
    DOE to begin accepting used fuel assemblies by 2002. Almost all of the
    Florida Representatives voted for the NWPA when it passed the House in
    October 1997, Florida Senators Mack and Graham voted for similar
    legislation in the Senate. I support this legislation and I look
    forward to hearing from our panelists.
                                     ______

       Prepared Statement of Hon. Michael Bilirakis, a Representative in
                       Congress from the State of Florida
        Mr. Chairman, I want to commend you for scheduling today's hearing
    on H.R. 45, the Nuclear Waste Policy Act of 1999. Unfortunately, a
    scheduling conflict with the Health and Environment Subcommittee, which
    I chair, will prevent me from attending this hearing. However, as an
    original cosponsor of H.R. 45, I believe Congress must act
    expeditiously on this important issue.
        H.R. 45 will give us a viable system for managing the nation's
    spent nuclear fuel from the time it leaves the power plant until it
    reaches the repository. It is regrettable that our country's program to
    manage nuclear waste has come to this point. Seventeen years ago,
    Congress established a nuclear waste policy based upon the scientific
    consensus that the best way to dispose of high-level radioactive waste
    is to bury it deep underground.
        The Nuclear Waste Policy Act of 1982 gave the Department of Energy
    responsibility for finding a suitable location to build and operate--at
    that time a disposal facility. The opening date for that facility was
    to be 1998.
        To fund the program, nuclear utility customers were asked to pay a
    surcharge on their electricity bills and the money was to be placed in
    a nuclear waste fund administered by the Congress. To date, more than
    $15 billion has been committed to this fund. The ratepayers are keeping
    their part of the bargain.
        However, the Federal Government's spent fuel management program is
    in serious trouble. The opening date for the repository has slipped to
    at least 2010, more than a decade after the target date specified by
    the Nuclear Waste Policy Act of 1982.
        The consequences of continued inaction is severe. The nation's
    nuclear power plants were not designed to be permanent disposal
    facilities, and many are running out of storage capacity for spent
    fuel. By 1999, 29 reactor sites will have exhausted existing storage
    capacity. By 2010--the earliest date a repository could be operating--
    80 plants will no longer have enough on-site capacity--three of them in
    my state of Florida.
        As a result of the delays, utilities are being forced to plan
    additional storage at their nuclear power plants at a cost of tens of
    millions of dollars per site. Consumers may be forced to pay twice for
    the same service--once for the Federal Government's sluggish repository
    program and again for additional storage space. Moreover, there is no
    assurance that a power plant will not become a permanent home for spent
    fuel.
        Even worse, some utilities may be forced to prematurely shut down
    nuclear plants because there is simply no additional space to store the
    spent fuel. The Nuclear Regulatory Commission does not permit nuclear
    plants to operate unless they have storage for all of the fuel in their
    reactors. The cost to consumers for replacing electricity produced at
    these plants will be enormous--and even that would not solve the
    problem of how to dispose of the spent fuel already being stored at the
    plants.
        Our nation's 103 nuclear power plants produce about 20 percent of
    our electricity--and through the interconnection of power lines, nearly
    all Americans get some of their electricity from nuclear energy. In
    Florida, nineteen percent of our electricity comes from nuclear power.
    We simply cannot afford to let shortcomings in DOE's program threaten
    this important source of electricity.
        Electricity customers in Florida and every other state that has
    nuclear power plants have already paid for nuclear waste disposal. In
    fact, Floridians have paid more than $649 million. This Congress must
    ensure that these customers get what they have paid for.
        H.R. 45 directs the Energy Department to develop the missing piece
    of an integrated nuclear waste management system--a temporary facility
    at the permanent storage site until the permanent repository is ready.
    This temporary facility will ensure that the Federal Government meets
    its commitment to begin taking spent fuel from nuclear power plants.
        The ratepayers have kept their part of the bargain. Now, it is time
    for the Federal Government to fulfill its responsibility as well. We
    must act on H.R. 45.
        Mr. Chairman, I look forward to working with you and my colleagues
    on this important issue. Although, I cannot attend today's hearing, I
    will be reviewing the testimony of our witnesses.

        Mr. Barton. The Chair would now like to call forward our
    first distinguished panel headed by the distinguished Governor
    of the great State of Nevada, the Honorable Kenny Guinn. We
    also have the senior Member of the House delegation, the
    honorable James Gibbons; the junior Member of the House
    delegation the Honorable Shelley Berkley; the distinguished
    mayor of the city of Caliente, the Honorable Kevin Phillips.
    Our two Senators were scheduled to be here, the two Senators
    from Nevada, but they have pending business in the Senate, and
    we will put their statements into the record in their entirety,
    and it is my understanding that the Congresswoman Berkley is
    going to put in one of the Senators' statements into the
    record.
        Mr. Gibbons, we are going to recognize you to introduce to
    our subcommittee your Governor, and at the conclusion of your
    introductory remarks, we will let the Governor speak, and then
    we will start with you, then Congresswoman Berkley and then
    Mayor Phillips.
        Mr. Gibbons. Mr. Chairman and members of the committee,
    thank you very much for allowing us and the delegation of
    Nevada to have an opportunity to be here today to testify as a
    bipartisan group effort against this measure. As you can tell,
    the two United States Senators from Nevada are unable to be
    here as they are now presently addressing a rather radioactive
    measure themselves that is over in the Senate. I would like to
    ask unanimous consent of the committee to introduce for the
    record the complete written statement of Senator Harry Reid.
        Mr. Barton. Without objection, so ordered.
        [The Prepared statement of Hon. Harry Reid follows:]
    Prepared Statement of Hon. Harry Reid, a U.S. Senator from the State of
                                     Nevada
        It gives me the greatest pleasure to welcome Nevada's newly elected
    Governor Kenny Guinn to the Capitol. He has stepped into this job at a
    time of continued heed for leadership in Nevada's Capitol, and I am
    wholly confident in his capacity to meet the challenge. His priorities,
    and Nevada's priorities could not be more clear. It says a lot that
    Governor Guinn would fly all night from his state duties at a time when
    the State Legislature is in session to be here today.
        Many attempts have been made in recent years to find legislative
    remedies to the overwhelming technical challenges of managing spent
    nuclear fuel and other high level radioactive waste. Failure after
    failure of these legislative initiatives is simple affirmation that
    science is immune to legislative overrides.
        Permanent disposition of untreated spent nuclear fuel requires
    effective environmental isolation of this waste material for a period
    that far exceeds recorded human history. Present policy calls for
    licensing a repository that would meet this isolation requirement for a
    period of ten thousand years. That period of isolation serves only to
    reduce the intensity of short half-life waste, but it is totally
    inadequate to reduce the activity of many isotopes with half-lives
    ranging from several times the licensing period to several hundred
    thousand years.
        The ultimate failure of any isolation material or strategy
    guarantees that, sooner or later, the environment will become
    contaminated by radioactive waste that will escape the repository and
    migrate through the ground water. That fact is a certainty. What is
    uncertain is when containment failure will occur, and the amount and
    speed of migration of waste beyond the repository boundaries. Reducing
    that uncertainty to acceptable levels, and demonstrating to everyone's
    satisfaction that those levels of uncertainty are indeed acceptable are
    the primary objectives of the scientific characterization effort. It is
    difficult, it takes time, and it requires a minimum of distraction from
    the primary scientific effort.
        Legislative initiatives to resolve this difficult problem have
    failed time and again. S. 1271 in 1995, S. 1936 in 1996, S. 104 in
    1997, and H.R. 1270 in 1998 all failed to become law. These efforts
    failed because they were misguided bills crafted to meet the nuclear
    industry's demands. They were not focused on the needs of the
    development program that must provide a safe and secure storage
    facility to contain the waste with high confidence for as long as
    necessary to protect the environment.
        Sadly, H.R. 45, the Nuclear Waste Policy of 1999, is no better than
    the earlier failures. In fact, H.R. 45 goes awry at the very beginning.
    The Section dealing with ``Findings and Purposes'' says it all.
    According to H.R. 45, ``The Congress finds that while spent nuclear
    fuel can be safely stored at reactor sites, the expeditious movement to
    . . . a centralized Federal facility will enhance the Nation's
    environmental protection''.
        I am encouraged that H.R. 45 is at least half right. Indeed, spent
    nuclear fuel can be safely stored on reactor sites. I have been saying
    that for years, and so has the independent Congressionally authorized
    Nuclear Waste Technical Review Board. Interim storage at reactor sites
    is a safe, secure, and economical way to manage spent nuclear fuel for
    as long as it takes to find a more permanent management option. On-site
    storage in the present configuration is safe for at least a generation,
    and modest investments will prolong that option for at least one
    hundred years. There is no technical or fiscal reason to move the waste
    until a permanent repository is prepared.
        However, contrary to H.R. 45, there is no enhancement of
    environmental protection from moving the waste from its present
    temporary storage to yet another temporary storage site. That assertion
    by H.R. 45 is just plain nonsense. Developing a so-called
    ``centralized'' temporary storage facility will not reduce the number
    of interim storage sites. It will increase the number of sites to be
    developed and maintained. None of the present temporary sites will be
    closed before the present characterization effort at Yucca Mountain is
    scheduled for completion.
        Moreover, the proposed interim storage facility referred to in H.R.
    45 is sited in an area in Nevada that is subject to the third highest
    frequency of earthquakes in the country. Just 2 weeks ago, the Nevada
    Test Site was shaken by a series of 4 earthquakes on 2 separate faults
    over a period of 3 days. These were not negligible events, toppling the
    contents of a number of structures on the Site. It is nonsense to
    assert enhanced environmental protection by moving this dangerous
    material from its present safe storage at reactor sites to a much less
    safe, earthquake-prone region. This move is a recipe for disaster.
        Current law prohibits an interim storage site in a state with a
    site being evaluated for a permanent repository. That feature of the
    Nuclear Waste Policy Act was provided to guarantee the unpressured,
    independent scientific work that is absolutely necessary for public
    health and safety, and for protection of the environment. It is this
    aspect of current policy that H.R. 45 is trying to overturn. The
    nuclear industry wants to preempt the scientific work because they know
    that once the waste is moved to Nevada, it will never leave, regardless
    of the risks to public health and the environment.
        There can be no doubt about it. H.R. 45 is all about interim
    storage. It is all about preempting high quality technical
    characterization of the proposed permanent repository. It is all about
    the nuclear industry trying to unload its waste, generated at a profit,
    on the American taxpayer without regard for the risks to the public and
    the Nevada environment. H.R. 45 is all about interim storage in Nevada,
    but interim storage anywhere but on reactor sites is nonsense.

        Mr. Gibbons. I will take a minute to introduce both Shelley
    Berkley, the newest member of our delegation from District 1 in
    Nevada, upstanding member of the community in the State who is
    a hard worker in this battle as well; and our present Governor,
    Mr. Kenny Guinn, who was elected in November to replace the
    current Governor, the past Governor, Governor Miller.
        Let me begin, Mr. Chairman, to remind this committee. This
    is an issue of safety, safety for all Americans.
        Mr. Barton. Are you going to give a statement now or do an
    introduction, because you will have a chance to give a complete
    statement on your own. My understanding was that you would
    introduce the Governor, and as the leader of the State, we will
    let him speak, and then we will start with you and let you
    speak. But if you want to speak first and it is okay with your
    Governor, it is okay with me.
        Mr. Gibbons. Let me tell you that it is an issue of safety
    whether I go first or he goes first. It depends on the
    political safety in our State.
        I do know that our Governor does want to make a statement
    and would certainly like to introduce him at this time with the
    committee and the chairman's approval. Governor Guinn was sworn
    into office last month, in the month of January. He has quickly
    joined the battle on behalf of Nevada against this issue in an
    attempt to help not only educate America with you, the leaders
    of Congress here, as to the dangers of this subject not with
    regard to just Nevada, but with regard to all of America. He
    has shown great leadership on this issue. He will be holding
    the first ever nuclear waste summit in Nevada next week where
    we will invite officials to come in and talk to us about this
    issue in the State of Nevada.
        By way of background, Governor Guinn is the former
    president of the University of Nevada Las Vegas. He was the
    chief executive officer of Nevada Power, served on the board,
    and has been the president of several banks. He was also the
    superintendent of Clark County Public School System, one of the
    largest school systems in the United States. He serves on a
    number of committees, a number of boards from various private
    sector organizations. He is a leader in the State. I think he
    is a leader in America, and I look forward, as this committee
    should, to receiving the testimony of Governor Kenny Guinn.
        Mr. Barton. Thank you.
        Governor Guinn, we are delighted to have you before the
    subcommittee. I think I speak for members on both sides of the
    aisle that we respect your leadership not only in your State,
    but in the country, as one of the 50 State leaders. We are
    going to give the others 5 minutes to summarize, but especially
    since our two Senators that tend to be long-winded are not
    here, we are going to give you as much time as you may consume,
    asking you to join in the spirit of this subcommittee, which is
    normally very conservative, and don't abuse that privilege in
    terms of time.
        But we now recognize you. Your complete statement is in the
    record in its entirety, and the committee would like to hear
    your views on this very important subject to your State and the
    Nation.

      STATEMENT OF HON. KENNY C. GUINN, GOVERNOR, STATE OF NEVADA

        Mr. Guinn. Thank you, Mr. Chairman and also members of the
    committee. My name is Kenny Guinn, and I am the Governor of the
    State of Nevada, as you have already heard, and I appreciate
    this opportunity to be before you today to address a matter
    that is of extreme importance not only to the people of Nevada,
    but also to citizens throughout this great country.
        I am new to the Governorship in Nevada, having been elected
    in November, and I must say I am the first Republican to hold
    the office since 1982. I am not a career politician, and this
    is my first run for elected office, but I am not new certainly
    to public service, as you have just heard from Congressman
    Gibbons.
        I have been a resident of southern Nevada for 35 years,
    where my wife and I have raised our two sons and are now
    enjoying our grandchildren. We watched the Las Vegas Valley
    grow from a small city of a hundred thousand or so to a major
    metropolitan area, an international tourism center with almost
    1.5 million citizens, and growing almost at the rate of 6- to
    7,000 people a month. And we also have 30 million visitors a
    year plus from all over the United States and the world.
    Consequently, I have more than a passing familiarity with the
    problems facing us right now in the State of Nevada.
        I believe that H.R. 45 is wrong for our country for several
    important reasons. It is scientifically unsound. It creates
    health and safety risks not only for the people of Nevada, but
    also for all those whose homes and businesses are in the
    transportation quarters and paths of the deadliest substance
    known to mankind. And it violates the spirit of the 10th
    amendment to the United States Constitution by targeting Nevada
    on a purely political basis.
        H.R. 45 is the latest in a string of failed bills designed
    to fashion a quick and expedient fix for the high-level
    radioactive waste program that has been bungled over the years
    by the Department of Energy, but like its predecessor, this
    bill will not fix anything. Rather H.R. 45 will exacerbate the
    problems facing nuclear utility companies in the Nation. It
    will, if enacted into law, create a huge unfunded liability for
    the American taxpayers, as we have heard already today from
    testimony, undermining environmental, health and safety laws
    and regulations, and put millions of citizens in hundreds of
    cities in 43 States at substantial risk from the transportation
    of spent nuclear fuel and high-level waste throughout their
    communities.
        And that doesn't begin to take into account what the
    legislation will do to Nevada where it will continue to flaunt
    a potential disastrous Yucca Mountain repository project by
    eliminating existing standards for determining site
    suitability, reducing regulatory requirements, governing
    regulation exposure to the public and exempting DOE from
    Federal, State, and local environmental laws and regulations
    which we all must abide by.
        As I point out in my written statement, the evidence is
    clear that Yucca Mountain should be disqualified as a
    repository location, and no amount of legislative
    gerrymandering will change this statement. DOE recently
    released a so-called viability assessment for Yucca Mountain.
    The report calls to mind a famous Harry Truman quote. If you
    can't convince them, confuse them. And if you look at the
    viability study, I think you will see that is exactly what it
    attempts to do. A study based on flawed, biased and incomplete
    science, the viability assessment may very well be remembered
    for what DOE doesn't want acknowledged about Yucca Mountain,
    namely that the waste isolation features of a mountain are, in
    fact, insufficient to assure that radioactive wastes do not
    escape into the environment.
        One startling revelation emerges from this report. To make
    the Nevada site meet even minimal standards, standards, I would
    point out, that are far less stringent than for other nuclear
    facilities in the country, DOE's viability assessment must rely
    on a waste disposal container that will last for 750,000 years.
    What happened to requirement that the geologic environment
    itself must be able to contain the waste for the time required
    with so-called engineered barriers providing only enhancement
    and redundancy for the system? This requirement is the very
    basis for deep geologic disposal of spent fuel and high-level
    waste in the first place.
        The area encompassing Yucca Mountain that we know and a
    Nevada test site lies within a region identified by the U.S.
    Geological Survey as one of the most seismologically active
    regions in the country. During the past 20 years, there have
    been over 621 earthquakes recorded with magnitudes of 2.5 or
    greater, including a 5.6 magnitude quake in 1992 that occurred
    just 12 miles from the proposed repository and even closer to
    the proposed interim storage site causing over $500,000 in
    damage to DOE's Yucca Mountain support facility. Just last
    month, two substantial earthquakes, one a 4.5 and the other
    4.7, and a swarm of smaller quakes were recorded in the
    Frenchman Flat area of the test site very close to Yucca
    Mountain, in area 25, the proposed interim storage location.
        The U.S. Immigration and Naturalization Service recently
    commissioned a study to screen possible locations for a new
    national data processing facility for immigration records and
    information. The INS specifically ruled out all of southern
    Nevada and southern California because this region is
    considered to be too prone to disruption by earthquakes. Isn't
    it ironic that it is acceptable to DOE to store extremely
    dangerous and long-life radioactive waste at Yucca Mountain,
    but it is too risky to use the same area for storing records on
    legal and illegal immigrants.
        H.R. 45 also designates the Nevada test site as the
    location for a so-called interim storage facility for spent
    nuclear fuel. It does so without one bit of scientific or
    technical evidence suggesting that the site is safe and
    suitable for such storage, and without any justification
    whatsoever other than Nevada's perceived political
    vulnerability.
        Many of the same factors that make Yucca Mountain
    unsuitable as a repository location also make the Nevada test
    site unsuitable for above-ground storage of spent fuel and
    high-level waste as proposed by H.R. 45. Such a facility cannot
    meet the Nuclear Regulatory Commission's licensing requirements
    governing seismic risk for nuclear facilities under current NRC
    regulations.
        As a businessman, legislation like this makes no sense to
    me. As a father and grandfather, the unnecessary risk it poses
    not only to present and future generations of Nevadans, but
    also to families and children in communities throughout the
    country seems unconscionable to me. Not only does H.R. 45 put
    Nevada's people and environment at risk, but it would also
    expose thousands of communities and cities throughout the
    country to an unprecedented and potentially hazardous nuclear
    waste shipping campaign that will involve tens of thousands of
    truckloads and rail shipments over a sustained period of 30
    years or more.
        H.R. 45 would have thousands of shipments of dangerous
    nuclear waste rolling over the Nation's highways and railways
    within 4 years. It will result in massive unfunded costs to
    States and communities for emergency planning and preparedness.
    It will increase the risk of radiation exposure to people
    traveling on the country's interstate highways. It will
    dramatically increase the risk of radiation exposure due to
    accidents that will invariably occur in a shipping campaign of
    this magnitude. And it will significantly increase the risk of
    terrorism or sabotage against the inviting targets of nuclear
    waste trucks and trains.
        The cost of this legislation poses another major problem.
    Our analysts with the oversight of a major national accounting
    firm recently estimated the total cost of a repository and
    interim storage system envisioned by H.R. 45 using procedures
    similar to those employed by DOE in its total system life cycle
    cost evaluations. They found that the total cost for
    development, operation and closure to be $54 billion in 1996.
    The nuclear waste fund at maximum will generate only about half
    of the necessary funds. It is unacceptable that the American
    taxpayer should have to bear the burden of paying billions of
    dollars for this misguided and risky program that was
    originally intended to be one of full cost recovery. And what
    will a Nation have gained by incurring this risk and enormous
    costs the program the program will entail?
        If permitted to go forward, this legislation will result in
    the movement of spent fuel and high-level radioactive waste to
    a questionable and risky location in a facility that cannot
    meet NRC safety standards, next to a so-called repository site
    that is incapable of isolating radioactive materials as
    required and that will never be licensed or built.
        At this point what does a Nation do? Will Congress pass
    legislation authorizing DOE to move all the waste back across
    the country where it came from? Will it attempt to find another
    actually suitable storage site with all the political baggage
    such an effort would imply?
        Mr. Chairman, the direction of this legislation leaves
    Congress and the Nation in a--fraught with peril and a
    dangerous precedent. It will leave us in that position. As
    someone that strongly believes in the principles of federalism
    that governs State and Federal relationships in this country, I
    am very much disturbed by the damage H.R. 45 does to this
    essential principle that has characterized the American
    Republic for over 200 years.
        Those who support this unfair legislation would have the
    American people believe there is no suitable alternative of
    shipping nuclear waste to Nevada. It should be known by
    everyone who follows this issue that science has created a
    process, dry cast storage, which enables high-level waste to be
    stored onsite at reactor locations for 100 years or more,
    sufficient time to explore more permanent and scientifically
    sound methods such as reprocessing and especially through our
    scientific methods. This legislation throws science out the
    window. It throws equity and fairness away. It places raw
    political expedience as the driving force for dealing with
    difficult problems involving technology in the environment.
        Mr. Chairman, H.R. 45 to us is bad legislation and bad
    public policy. It will do great harm to Nevada, to many other
    States, and to the political fabric of this great Nation of
    ours, and I would ask you to give every due consideration in
    your deliberations to what is fair and to what is right for the
    people of America, and especially for those of us who live in
    the State of Nevada, and thank you for this opportunity. I will
    yield my remaining unlimited time to my two colleagues.
        [The prepared statement of Hon. Kenny C. Guinn follows:]
         Prepared Statement of Hon. Kenny C. Guinn, Governor of Nevada
        Mr. Chairman, Members of the Subcommittee: I appreciate the
    opportunity to speak with you today on a subject that we in Nevada have
    been confronting for more than 20 years, and has held our full
    attention as a state since Congress acted in 1987 to single out Yucca
    Mountain, Nevada, as the only site to be studied as a candidate
    repository site for the nation's commercial and government-owned high-
    level nuclear waste.
        We are all aware of the political nature of that 1987 decision. And
    we are all aware that no state would accept that decision with any less
    opposition than Nevada has shown during the past nearly 12 years. In
    1989, the Nevada Legislature enacted a law making the storage of high-
    level nuclear waste illegal in the State. Some 14 other states had
    similarly intended legislation on their books at the time.
        In a recent bi-annual poll conducted by the University of Nevada
    regarding major public issues in the State, 75% of Nevada citizens were
    opposed to Yucca Mountain becoming the final destination for the
    nation's high-level nuclear waste. Since 1992, this number has risen by
    16 percentage points in the same poll. One must wonder why Nevadans, in
    impressive and increasing numbers oppose this imposition within our
    state.
        The reasons are many, but they settle generally into two important
    categories--political fairness and equity, and safety. Nevada has no
    nuclear power reactors, and is far distant from most of the nation's
    reactors, which are east of the Mississippi River. The principle of
    regional equity that was intentionally embedded in the 1982 Nuclear
    Waste Policy Act as a fairness gesture for western states was
    essentially stripped from the Act in 1987. And now we see a further
    insult to fairness and equity in HR 45, which contains a provision to
    preempt any state laws, including federally delegated environmental
    protection authorities, that might interfere with the bill's purpose of
    storing nuclear waste in Nevada. Fairness is also at issue in the
    matter of HR 45's elimination of the Secretary of Energy's duty to
    determine, based on statutory criteria, the suitability of the site for
    development of a repository, and Nevada's ability to disapprove in a
    substantive manner before Congress, the Secretary's recommendation that
    the Yucca Mountain site be developed as a repository.
        Both fairness and equity, and safety are at stake in the ongoing
    stream of actions to preserve the viability of the Yucca Mountain site
    through compromise of safety, suitability and licensing standards. The
    site should have been disqualified from further consideration in 1992
    when it was clear to all parties that it did not meet the established
    safety standard for radionuclide releases from geologic repositories.
    Instead, Congress instructed the Environmental Protection Agency to
    write new, site specific safety standards for a Yucca Mountain
    repository, and directed the Nuclear Regulatory Commission to conform
    its licensing regulations to that new standard. EPA has not yet acted,
    but the NRC has proposed a new standard for a Yucca Mountain repository
    that is less protective than that applied to the DOE's geologic
    repository for transuranic wastes at the Waste Isolation Pilot Plant,
    in New Mexico. The NRC also has ignored the Safe Drinking Water Act
    protection limit for radionuclides in drinking water, even though it is
    known that radionuclides released from a Yucca Mountain repository will
    contaminate the water supply aquifer used by local residents and
    farmers. Groundwater protection is afforded by law to all other people
    of the United States.
        In December, 1998 former Governor Bob Miller and I, as Nevada
    Governor-elect, joined in a letter to Energy Secretary Richardson
    stating that the Yucca Mountain site should be disqualified from
    further consideration as a repository based on criteria established in
    the DOE's guidelines for repository site recommendation that were
    enacted pursuant to the Nuclear Waste Policy Act of 1982 and remain in
    effect today. The technical basis for disqualification was cited from
    DOE and other site data and analyses. Data and information presented in
    DOE's subsequently released Viability Assessment serves to confirm our
    finding that the site meets the guidelines' provision for
    disqualification due to rapid groundwater flow that would carry
    released radionuclides through Yucca Mountain and to the accessible
    environment. Despite clear information to the contrary in the Viability
    Assessment and in later DOE documents, Secretary Richardson responded
    that the disqualifying condition is not met. He said that average
    groundwater travel time from the repository to the accessible
    environment is greater than the required minimum 1,000 years. HR 45
    would moot this critical safety criterion by eliminating the existing
    site recommendation guidelines and the required factors which are used
    to qualify or disqualify a candidate repository site.
        With DOE's recent understanding that there are fast pathways for
    groundwater movement through Yucca Mountain, it revised its repository
    performance assessment code for use in the Viability Assessment and
    revised its safety strategy for a Yucca Mountain repository. The
    original notion of a geologic repository was that the natural features
    of the site, its geology and hydrology, would serve a significant role
    in assuring long-term isolation of the waste, and that engineered
    barriers would be employed to enhance the site's waste isolation
    capabilities. Now, the Yucca Mountain safety strategy relies nearly
    entirely on the predicted long lifetime of the metal waste containers
    in the repository, and then as the containers fail the released waste
    is intended to be diluted in the groundwater as it travels to locations
    where it can be pumped for human consumption and use. New information,
    presented last month to the U.S. Nuclear Waste Technical Review Board
    by DOE, indicates that the Yucca Mountain site's natural barriers to
    waste release only account for a fraction of a percent of the predicted
    repository performance, and the engineered waste container is the
    primary functional barrier. As the containers fail, mainly due to
    corrosion, increasing amounts of radionuclides will be released to the
    groundwater, and the predicted average peak dose to humans will be
    approximately 250 times the limit set by the Safe Drinking Water Act.
        The Yucca Mountain site, according to all current data will not
    function as a geologic repository. Instead, if developed, it would be
    an Underground engineered repository until the engineered barriers
    fail. With failure, the resulting doses would be totally unacceptable,
    for health and safety reasons, if they were intended to be imposed on
    the public today. HR 45's provision for a maximum dose standard of 100
    millirems per year to an average individual in the vicinity of the site
    represents a standard 25 times greater than the dose limit of the Safe
    Drinking Water Act. This too, in our view, is an unacceptable risk to
    the public coming from just one component of the nuclear fuel cycle.
    This is an especially important consideration in view of new
    information about plutonium and tritium migration at unexpectedly long
    distances from underground nuclear weapons test locations at the Nevada
    Test Site. Some of these contaminants, once they exit the Test Site
    boundary will add to the radionuclide concentration in the same aquifer
    affected by releases from a Yucca Mountain repository, further
    increasing the predicted doses to the public.
        Broad ranges of uncertainty plague the calculated performance
    assessment for a Yucca Mountain repository. The Viability Assessment
    indicates that the uncertainty associated with the waste package
    lifetime projections is a factor of about 1,000 fold, and the
    uncertainty in the total performance assessment is on the order of a
    factor of 100,000 to 1 million. DOE's primary effort is to reduce
    uncertainty in the engineered system, since it does not believe it can
    further significantly reduce uncertainty in the performance predictions
    of the natural system. DOE continues to express the results of the
    performance calculations as mean values, without elaborating on the
    associated range of uncertainty, which means that a predicted dose of 1
    millirem to an individual per year could actually represent an expected
    range of dose spanning from .001 millirems to 1,000 millirems. The
    lower portion of the range might be an acceptable dose, while the upper
    range doses certainly are not acceptable. It does not appear that the
    uncertainties associated with the Yucca Mountain repository performance
    calculations will be reduced significantly at the time the Secretary's
    suitability determination and site recommendation is scheduled to be
    made. This casts serious doubt on the use of the Viability Assessment
    to support any decision to continue site characterization and
    expenditures of the Nuclear Waste Fund on the Yucca Mountain site.
        Seismicity and earthquake impacts have been generally relegated by
    DOE to be design issues for a Yucca Mountain repository, including the
    surface facility during the operations phase. At issue is the
    credibility and feasibility of designs for both underground and surface
    facilities to withstand safely a possible Magnitude 7 earthquake in the
    vicinity of the site, and the strong ground shaking predicted to occur
    sometime in the next 10,000 years by the Viability Assessment technical
    bases information reports. As you may have heard, a swarm of earthquake
    activity has occurred during the past month on the Nevada Test Site,
    with the largest registering Magnitude 4.7, and eight events greater
    than Magnitude 3.0 in a four day period. These earthquakes have
    occurred on the eastern end of the Rock Valley Fault, one of the most
    active faults on the Test Site. Swarms of earthquakes on the western
    end of this fault, near Yucca Mountain are commonplace. I have attached
    recent press accounts of these earthquakes to my statement.
        During the period 1976 to 1996, within a fifty mile radius of Yucca
    Mountain there have been over 620 recorded earthquakes with a magnitude
    greater than 2.5. The largest of these, with a magnitude of 5.6,
    occurred on June 29, 1992 at Little Skull Mountain, a few miles from
    the Yucca Mountain site. This earthquake, on a fault near the Rock
    Valley Fault, caused damage to the DOE's Yucca Mountain Field
    Operations Center at the Test Site.
        Independent researchers from the California Institute of Technology
    and Harvard University recently reported that their investigations in
    the Yucca Mountain region indicate tectonic strain and earth crustal
    deformation is more than ten times greater than previously assessed by
    the Yucca Mountain Project. This could lead to more frequent and larger
    earthquakes than previously predicted for the Yucca Mountain area, and
    a greater probability of recurrence of volcanic activity that could
    impact the repository site. Further research is being carried out by
    these scientists and the Nevada Bureau of Mines and Geology under a
    cooperative agreement with DOE.
        It is noteworthy that, under current Nuclear Regulatory Commission
    regulations regarding earthquake potential, a nuclear power reactor
    would not be licensable at the Yucca Mountain site, and an Interim
    Storage Facility as proposed by HR 45 would be subject to the same
    safety regulations. The apparent proposed location of the Interim
    Storage Facility on the Test Site lies between the Yucca Mountain site
    and the location of the 1992 earthquake and the Rock Valley Fault.
        Aside from earthquake safety concerns associated with the Interim
    Storage Facility proposed by HR 45, operation of the facility would
    begin transportation of high-level nuclear waste from the nation's
    nuclear power reactors and DOE defense facility locations to Nevada,
    based on the apparent assumption that the Yucca Mountain repository
    site will be found suitable and receive a license for development and
    operation of a repository. Not only does this assumption incorrectly
    prejudge the technical suitability of the site, as discussed above, but
    it encourages approval to begin development of an unsafe repository. If
    the repository is not approved or developed, the waste would have to be
    moved again to some future disposal location, thus increasing
    transportation risks to the public. As it is, transportation of the
    thousands of shipments of waste to Nevada over a thirty year period
    will impact 43 states, and more than 50 million Americans within a one
    half mile of the highway and rail routes.
        Transportation risks are exacerbated by the evolving threat from
    terrorist action or sabotage. Spent fuel and high-level nuclear waste
    trucks and trains will make for new and potentially attractive targets,
    especially in the many urban areas through which they must pass en
    route to a Nevada facility.
        The cost of this legislation poses another major problem. An
    independent cost assessment, released in February 1998, was conducted
    by a team of experts with oversight by a major national accounting
    firm. The report estimates the total cost of the repository and interim
    storage system envisioned by HR 45, using procedures similar to those
    employed by DOE in its Total System Life Cycle Cost evaluations, and
    concludes that the total cost for development, operation, and closure
    to be $53.9 billion in 1996 dollars. The Nuclear Waste Fund, at
    maximum, will generate only about half of the necessary funds. It is
    unacceptable that the American taxpayer should have to bear the burden
    of paying billions of dollars for this misguided and risky program that
    was originally intended to be one of full cost recovery.
        The development and operation of interim storage and repository
    facilities in Nevada and the transportation of spent fuel and highly
    radioactive materials to such facilities will also result in
    significant socioeconomic impacts. These impacts will be felt most
    acutely by Nevada's tourism-based economy, but they will also affect
    cities and communities all across the country should there be accidents
    or incidents involving nuclear waste shipments, as there almost
    certainly will given the magnitude and duration of the shipping
    campaign.
        In Nevada, the impacts from disruptions of the tourism economy due
    to real or perceived risks from repository or interim storage-related
    activities could run into the hundreds of millions of dollars depending
    on the nature of the precipitating event, its location (i.e., within
    the Las Vegas metropolitan area), the intensity of media attention
    given to it, and other variables.
        Similar economic disruptions are clearly possible in any of the
    hundreds of major metropolitan areas through which waste shipments will
    pass and in rural areas that are especially vulnerable to radiation-
    driven impacts (i.e., such as agricultural or ranching areas that could
    be either contaminated or stigmatized as a result of an accident or
    incident).
        HR 45 is an unacceptable bill for Nevadans because it promotes
    unprecedented health and safety risks to current and future Nevadans--
    at levels no other citizens of the nation are expected or required to
    endure. HR 45 is an unacceptable bill for the nation because it imposes
    unnecessary radiation risks from normal transportation operations and
    accidents on a significant portion of the population.
        I urge rejection of HR 45 in the interest of protecting the health
    and safety of Nevadans and all Americans.
        Thank you for the opportunity to present my views and those of my
    fellow Nevadans to this Subcommittee on a matter of critical importance
    to my state and the nation.

        Mr. Barton. That is out of order, Mr. Governor. Good try.
        The Chair would thank the distinguished Governor for his
    statement, both written and verbal. We take what you have said
    very seriously.
        Mr. Guinn. Mr. Chairman, in my anxiety I forgot one thing I
    must do quickly, if you would allow me. I did bring a signed
    resolution from our legislative body who is in session, both
    the senate and the house, where it passed against H.R. 45, 19
    to 1 in the senate and 32 to 0 in the assembly, and I would
    like to provide you copies of that.
        Mr. Barton. Without objection. The chair would ask
    unanimous consent. I assume there is no objection. Without
    objection, so ordered.
        The gentleman from Texas.
        Mr. Hall. I was just going to say if you acceded to my
    request, we would have held this hearing in Las Vegas. The
    Governor would be making the terms about how long he could
    speak.
        Mr. Barton. I couldn't afford to hold this hearing in Las
    Vegas.
        We are going to now recognize the senior Member of the
    House delegation for 5 minutes, and then Ms. Berkley for 5, and
    then Mayor Phillips for 5.
        Congressman Gibbons, your written statement is in the
    record. We welcome you to summarize that for 5 minutes.

      STATEMENT OF HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS
                        FROM THE STATE OF NEVADA

        Mr. Gibbons. Thank you, Mr. Chairman. I appreciate the
    opportunity, and I will try to summarize my testimony to be as
    brief as possible.
        To begin with, Mr. Chairman, let me say that H.R. 45 is a
    death sentence on Nevada that we cannot live with. Nor is it a
    sentence that America should impose upon the people of this
    country, and especially the people of Nevada. It is a safety
    issue. And H.D. Wells once said, human history becomes more and
    more a race between education and catastrophe. Let me say that
    I dare anyone in this room to point to me any structure that
    this human race has ever built that has lasted 10,000 or more
    years.
        What we engineered just 30 years ago has been proven today
    oftentimes to be unsafe and of poor technology, whether it is
    buildings that we design or airplanes, anything that has been
    engineered. Technology seems to change with time. I ask each of
    you here in this committee that if this nuclear waste were
    coming to your back yard, what concerns, what issues would you
    like to see ensured, recovered adequately with sound science to
    give you the comfort to know that it was coming to your back
    yard safely?
        I dare say that those of you who are supporting this bill
    probably are supporting it because you do not want it in your
    back yard. No one wants this in their back yard. And this bill
    circumvents and shortchanges many environmental protections
    that this Congress and the American people decided were
    necessary to give the confidence of safety not just to the site
    itself, but to the transportation route along which this
    material will travel.
        Mr. Barton. Could the gentleman suspend for just a second?
    This is one 15-minute vote. I have sent a Member over to vote.
    We are going to try to continue the hearing, to let you all
    know that. We are not going to suspend. So continue, Mr.
    Gibbons.
        Mr. Gibbons. Let me add to this, if you look at the bill,
    if you look at the technology that has been the core basis of
    shipping this material from the current sites as proposed to
    Nevada, those casts have not been certified as being exposed to
    the complete degree and safety traumas that would--or may be
    exposed to those in any accident that may occur along the way,
    and we see a number of times railway accidents, highway
    accidents which are violent and high-temperature fires
    resulting which could breach one of these casts.
        To that regard, let me just tell you that each one of these
    rail casts holds 24 nuclear fuel assemblies, and each fuel
    assembly contains 10 times the radioactivity of the Hiroshima
    bomb. If it were to have an accident, breach the cast, in your
    community, the catastrophe would be overwhelming in terms of
    human life, property damage and the cost of cleanup to this
    Nation.
        It creates several environmental concerns that shortcut the
    ongoing studies of the current site characterization study
    taking place at Yucca Mountain. It revokes the regulations that
    establish scientific guidelines for determining site
    suitability such as ground water movement, lime stability, and
    geologic stability.
        Beyond the circumvention of these national environmental
    laws, Yucca Mountain must be disqualified in itself
    scientifically on three very important reasons, one being that
    rainwater less than 50 years old has been detected in the
    underground site they are looking at. The Nuclear Waste Policy
    Act, part of this bill and the premise of this bill, states
    ground water travel time to the repository must take no less
    than 1,000 years. Here we have ground water reaching the site
    in 50 years. I am not a mathematician. My colleague from
    Georgia mentioned that math is one of his expertises, but I can
    see 50 is far short of 1,000.
        The second reason of disqualification, the geologic
    barriers of Yucca Mountain will not limit the radionuclide
    releases that allow for this material to pollute ground water
    supplies in the region. And again, this should be a show-
    stopper and disqualification scientifically.
        And the last thing I want to bring up here today, since the
    beginning of the year, and you have heard the Governor of our
    State talk about this, there have been just in 1 month 13
    earthquakes in this area. Seven of those have the magnitude of
    3 on a Richter scale or higher. This shouldn't surprise anyone
    on this who happens to have any small degree of acumen for
    science, because when you talk about Yucca Mountain, Yucca
    Mountain is a mountain. It didn't get there some placid
    tectonic event. It got there because of faulting and other
    geologic tectonic movement which is currently ongoing and will
    continue to ongo this process over the next year, 10 years,
    thousand years, or a hundred thousand years. And let me say the
    DOE has a responsibility to pay close attention to this fact.
        I only ask that this committee do what is right to provide
    for the safety of America, to provide for the safety of the
    people of Nevada in looking at this issue, in looking at the
    fact that Yucca Mountain is unsuitable as a site for storage,
    whether it is temporary or permanent.
        Mr. Chairman, I will submit my complete testimony for the
    record. Thank you very much.
        [The prepared statement of Hon. James A. Gibbons follows:]
       Prepared Statement of Hon. James A. Gibbons, a Representative in
                       Congress from the State of Nevada
        Mr. Chairman: The issue is safety! H.G. Wells once said that human
    history becomes more and more a race between education and catastrophe.
    Nothing in the history of mankind has withstood the test of 10,000
    years.
        What was state of the art technology and engineered as safe even as
    late as 1970, has proven not to be a safe solution today. Let's not
    allow short term safety issues to become serious, long term problems
    hundreds of years from now.
        Let me begin by saying, on behalf of myself and the constituents of
    Nevada, that I appreciate the opportunity to testify before your
    subcommittee this morning.
        Few, if any problems have become more challenging in recent years
    than the disposal of nuclear waste.
        I believe that certain standards based on sound science along with
    the protection and welfare of this nation's citizens, should be the
    fundamental threshold when we address nuclear waste storage.
        H.R. 45, the Nuclear Waste Policy Act of 1999, will mandate upon
    the state of Nevada and this nation, the transportation of high level
    waste while failing to address the issues of safety and general well-
    being of its citizens.
        H.R. 45 will open the door to nuclear waste transportation on a
    scale unprecedented in history.
        The deadliest materials ever created would hit the nation's roads
    and rails, bringing with them the risks of transportation accidents of
    the most lethal proportions.
        Cask safety standards fail to address the full range of trauma to
    which a cask may be exposed in an accident, and regulations do not even
    require testing of full-scale models to ensure compliance.
        The bill only mandates that shipping begin no later than June 30,
    2003 and that packages have been certified for such purposes by the
    Nuclear Regulatory Commission.
        Nevada has long been targeted as the nation's nuclear testing and
    dumping ground, although it has no nuclear reactors of its own, and
    more than three quarters of the nation's reactors are east of the
    Mississippi River.
        However, I don't believe that this is just a Nevada issue. Many
    states will be directly affected by the rail and trucking
    transportation routes.
        A high speed accident, near any one of your districts' communities,
    could unseat a valve or damage a seal, releasing radioactive
    particulates into the environment. Each rail cask holds up to 24 fuel
    assemblies.
        In terms of radioactivity, each fuel assembly contains 10 times the
    long-lived radioactivity released by the Hiroshima bomb.
        H.R. 45 also creates several environmental concerns. First, it
    shortcuts the ongoing studies that are currently taking place at Yucca
    Mountain.
        Specifically, by revoking regulations that establish sound
    scientific guidelines for determining site suitability, such as
    groundwater movement, climatic stability and geological stability.
        Not to mention, H.R. 45 preempts the National Environmental Policy
    Act, the Safe Drinking Water Act and any federal, state, or local law
    that is currently inconsistent with the bill.
        Beyond the circumvention of this nations environmental laws, Yucca
    Mountain must be disqualified for at least three other very important
    reasons.
        One being that rainwater, less than 50 years old, has been detected
    in the underground site.
        The Nuclear Waste Policy Act states that the groundwater travel
    time to the repository must take more than 1000 years, or the site will
    be disqualified. Now I'm not a mathematician but I think you can see my
    point.
        The second reason for disqualification is the geologic barriers of
    Yucca Mountain will not limit radionuclide releases, thereby polluting
    groundwater supplies in the region.
        This again meets the conditions for disqualification and is a true
    show stopper.
        Lastly, since the beginning of this year, a little over one month
    ago, there have been 13 earthquakes, and seven of those earthquakes
    with a magnitude of 3 or higher, near Yucca Mountain.
        This shouldn't be a surprise though, because Yucca Mountain, get
    it--MOUNTAIN--is not geologically sound. It's a MOUNTAIN and it's
    MOVING!
        Realize that you don't store nuclear waste in a area that ranks
    third in the country for seismic activity; an area that has had over
    621 earthquakes in the last 20 years; and an area that has had 13
    earthquakes in less than 30 days!
        It is important--in fact it is very important--to point out that
    the scientific merit of these facts are extremely credible.
        Now it becomes my Congressional responsibility to ensure that
    Congress and the Department of Energy does not ignore these facts or
    attempt to alter their regulations.
        This scientific approach dictates that DOE disqualify the site, and
    not the regulations.
        I would ask this Committee and Congress to look past the emotional
    idea that, ``We have to do something with nuclear waste,'' because as
    the bill states, spent fuel can be safely stored at reactor sites.
        We must be united in this common sense fight, We must demand sound,
    credible science!
        The art of political persuasion has no place in this fight. Members
    of Congress and the DOE must look at the hard, scientific evidence that
    proves the site is unsuitable.
        H.R. 45 will also establish a single performance standard regarding
    the amount of annual radiation exposure the surrounding population can
    be exposed to.
        It will also allow the general population in the vicinity of the
    Yucca Mountain site to be exposed to an annual dose of up to 100
    millirems annually, a level four times the amount of exposure allowed
    at current storage facilities.
        The International Commission on Radiological Protection and the
    Nuclear Regulatory Commission, stated that this exposure level is
    associated with a lifetime risk of one excess cancer death for every
    286 exposed individuals.
        As the Environmental Protection Agency Administrator Carol Browner
    wrote, an annual dose of 100 millirems would allow radiation
    ``exposures of future generations of Nevadans which are much higher
    than those allowed for other Americans and citizens of other
    countries.'' This is a death sentence that Nevada cannot live with.
        Lastly, as you may know, The Nuclear Waste Technical Review Board,
    an organization created by Congress to provide technical and scientific
    evaluation of nuclear waste storage concluded, in the March 1996
    report, that there is no compelling technical or safety reason to move
    spent fuel to a central facility, and this holds true today.
        If this nonpartisan Review Board, whose purpose was to look at
    irrefutable unbiased science, made this determination, then I believe
    there is no justifiable reason to move nuclear waste from onsite
    storage.
        It becomes evident that several environmental and safety concerns
    must be addressed before we, as federal legislators, and many times the
    guardians of citizen safety and well-being, move forward and mandate an
    unsafe permanent or interim nuclear waste storage facility at Yucca
    Mountain.
        Again, Mr. Chairman I would like to thank you for the opportunity
    to testify before the Energy and Power Subcommittee, and would request
    that you include some additional written information to be added in the
    record as part of my testimony.
        If I can be of any assistance to you or any other member of the
    Subcommittee, please let me know.

        Mr. Barton. Thank you, Congressman. We appreciate your
    leadership on this issue. It is obvious that you care about it
    personally and have been a leader for your State on their
    position.
        We would recognize our junior member Congresswoman Berkley
    for up to 5 minutes, reminding her that you also have to go
    vote if you wish.

    STATEMENT OF HON. SHELLEY BERKLEY, A REPRESENTATIVE IN CONGRESS
                        FROM THE STATE OF NEVADA

        Ms. Berkley. I have the same clock that Congressman Gibbons
    has. I thank you, Mr. Chairman, members of the subcommittee,
    and thank you for allowing me the opportunity to address you.
        Before I begin my testimony, I ask that Senator Richard
    Bryan's testimony be entered into the record.
        Mr. Barton. Without objection.
        [The prepared statement of Hon. Richard Bryan follows:]
    Prepared Statement of Hon. Richard Bryan, a U.S. Senator from the State
                                   of Nevada
        Mr. Chairman, thank you for permitting me to testify before the
    Subcommittee today.
        As you know, we in Nevada have a keen interest in the legislation
    before the Subcommittee today--for us, it is literally a life or death
    issue.
        The legislation before the Subcommittee today shows a callous
    disregard for the health and safety of Nevadans, and millions of
    Americans across the nation.
        Nevadans have been the unwilling victims of a nearly twenty year
    political campaign orchestrated by the nuclear power industry at the
    expense.of our, and future generations of Nevadans', health and safety.
    Today we are discussing yet another potential chapter in this long and
    disgraceful story.
        The bill before the Subcommittee today is a response to the
    industry's high level of frustration with the federal high-level waste
    program--but it is a poorly conceived, selfserving, and irresponsible
    one.
        Nevadans had no part in creating the commercial nuclear power
    industry's waste problem, but are nevertheless expected to bear the
    full burden of the industry's environmental legacy.
        Now, as scientific data begins to bear out our long held position
    that the site cannot be found suitable, the industry has proposed yet
    another round of political gerrymandering to again rewrite the rules,
    and attempt to overcome the scientific and engineering obstacles to
    shipping its waste to Nevada.
        The industry knows, however, that to overcoming the scientific
    obstacles to shipping its waste to Nevada is no small task--and that is
    why this legislation is such an environmental travesty.
        In addition to siting an unnecessary and unsafe ``interim storage''
    facility in Nevada, the legislation makes a mockery of decades of
    bipartisan environmental protection statutes.
        It establishes a radiation release standard far less protective
    than any other federal, or international, standard. The legislation
    proposes to subject Nevadans to radiation releases 25 times that
    allowed under the Safe Drinking Water Act, and more than 6 times that
    allowed for the WIPP facility in New Mexico.
        It guts NEPA, the primary federal statute designed to provide
    confidence to the public in federal environmental activities.
        It places 50 million citizens in 43 states along transportation
    routes for the waste shipments in harm's way. The state of every member
    of this Committee is along these transportation routes.
        It provides a multi-billion dollar windfall to nuclear utilities,
    who are attempting to dodge their financial responsibility for the
    storage and disposal of their waste.
        Finally, the bill before the Subcommittee adds to the already
    dangerous and misguided nuclear repository program a new, even more
    irresponsible ``interim'' storage program.
        Interim storage at the NTS is not only unnecessary, it seriously
    compromises the characterization of the Yucca Mountain site as a
    permanent repository. Siting centralized interim storage at the NTS
    prior to an objective, science based evaluation of Yucca Mountain
    prejudges the outcome of the characterization process, and will
    eliminate any hope of public confidence in the study the Yucca Mountain
    site.
        The sole purpose of this legislation is to shift the burden of the
    nuclear power industry's waste problem to the people of Nevada and the
    American taxpayer. Under this legislation, the utilities are the
    winners, and Nevadans, and every other citizen with even a shred of
    respect for the environment, are the clear losers.
        Despite the ``rosy scenario'' of the Department of Energy's
    ``viability assessment,'' it would be difficult to find anyone today
    willing to wager that Yucca Mountain will ever be licensed. Despite the
    Department of Energy's best efforts to explain them all away,
    scientific data continue to build and cast doubt on the ability of the
    Department to ever demonstrate that the site can safely contain high
    level waste.
        The geology underground has proven difficult to model; recent data
    at the adjoining NTS have demonstrated far faster migration of
    plutonium underground than DOE scientists have predicted.
        The important question of water seepage through the site remains
    open; higher than expected levels of Chlorine 36 at the repository
    level can only be explained by water penetration from the surface in
    the last few decades.
        Volcanic activity in the area appears to have been far more recent
    than previously estimated.
        Seismic activity--a particularly important issue in relation to
    interim storage--continues to be very active. Yucca Mountain, and the
    NTS, lie within the second most active seismic area in the continental
    United States. Well over 600 earthquakes registering over 3.0 on the
    Richter scale have been recorded in the area in the past twenty years--
    including six last month, two of which registered over 4.5.
        The area around Yucca Mountain and NTS is a constantly shifting,
    very active geological formation--hardly a suitable site for an
    underground repository, and even less suitable for an above ground
    ``interim storage'' facility.
        The cost of the repository--without even including any new interim
    storage--has gone through the roof, and will outstrip the current
    projected revenue of the Nuclear Waste Fund by tens of billions of
    dollars. The DOE's current estimate of the cost to complete the
    repository--which does not include interim storage-is a staggering
    $36.6 billion.
        The legislation before the Subcommittee today faces little or no
    chance of enactment. It is opposed by every major environmental group.
    Both the Department of Energy and the Nuclear Waste Technical Review
    Board oppose centralized interim storage, as well as the bill's
    necessary diversion of resources away from characterization of Yucca
    Mountain. The President will veto the bill, and we will have the votes
    in the Senate to sustain the President's veto.
        I urge the Subcommittee to reject this misguided legislation.

        Ms. Berkley. This hearing puts me in mind of that old
    saying everything has been said, but not everyone has said it.
    I come before you to give voice to the well-founded fears and
    concerns of the citizens of the Las Vegas Valley, which is my
    home district, and the citizens of the entire State of Nevada.
        Over 1.5 million Nevadans live within an hour or so drive
    of the so-called temporary high-level nuclear dump proposed by
    H.R. 45. This bill would dump over 70,000 tons of incredibly
    lethal substance in one location in southern Nevada. Those
    Nevadans, mothers like me, fathers, sons, daughters, and
    grandparents, deserve the same health and safety protections as
    every other American. H.R. 45 would deny equal protection under
    the law to the citizens of Nevada and future generations of
    Nevadans. But I will also discuss how this bill places
    Americans in all parts of the country at risk.
        When you live in a State that has been singled out as a
    target for a nuclear payload, you give close attention to this
    issue. Nevadans know just how toxic, how dangerous, how
    menacing high-level nuclear waste really is. To give you some
    idea, a person standing next to an unshielded spent nuclear
    fuel assembly would get a fatal dose of radiation within just 3
    minutes. Under H.R. 45, the concentrated level of deadly
    radiation at one place in my home State staggers the
    imagination. H.R. 45 would force all of the nation's high-level
    waste on the people of one State, a State where there is not
    even one nuclear reactor.
        For nearly two decades, the nuclear industry and the
    Department of Energy have tried to convince Nevadans that high-
    level nuclear waste transportation and storage is safe. Their
    argument basically is we will just stuff this high-level
    nuclear waste into metal cans, screw the lids on tight, and
    there is nothing to worry about. What is wrong with this
    picture?
        Well, if those cans of nuclear waste are so safe, why do
    they have to be shipped from all over the United States and
    dumped in Nevada? That question has haunted Nevadans for years,
    and our concerns have again intensified with H.R. 45. This bill
    would unleash high-level nuclear waste onto the Nation's
    highways and rail lines. It is this issue, that transportation
    of high-level nuclear waste, that binds Nevadans and all
    Americans as potential victims of H.R. 45.
        Americans from all parts of the country would be exposed to
    unacceptable and unnecessary risk because they live near
    highways and railways where the nuke trucks and trains would
    roll. Moving nuclear waste to Nevada would require well over
    100,000 long-haul shipments. Nuclear waste would be speeding
    around the clock every day for 30 years over our roads and
    rails. This should sound a national alarm. The deadly cargo
    would intrude on 43 States and hundreds of cities and towns.
    Fifty million Americans live within just a half a mile of the
    shipping routes. The waste will rumble through Birmingham,
    Alabama; Laramie, Wyoming; Portland, Maine; and the suburbs of
    Los Angeles; Miami, Florida; Kansas City, and St. Louis,
    Missouri. In short, nuclear waste will be on the move all over
    the country for all time for 30 years.
        The Department of Transportation counted more than 99,000
    incidents in which hazardous materials were released from
    trucks and trains from 1987 to 1996 causing 356 injuries and
    114 deaths.
        The Department of Energy has described a plausible crash
    scenario involving high impact and fire that would contaminate
    an area of 42 square miles with radioactive debris. It is truly
    horrifying to picture this happening in a populated area.
        We have been repeatedly told that shipping nuclear waste
    across the country and stashing it at a dump site is safe, but
    let's take a brief look at the history of how the Federal
    Government has handled nuclear projects. The lands around
    nuclear installations at Hanford, Washington; Rocky Flats,
    Colorado; Oak Ridge, Tennessee; Fernald, Ohio, are
    contaminated. The GAO concluded that 124 of our 127 nuclear
    sites has been mismanaged by the DOE.
        Nevadans don't buy into the don't worry, be happy attitude
    toward radiation, and for good reason. I grew up in Nevada.
    Nevadans are proud to volunteer for the patriotic chore of
    playing host to above- and below-ground nuclear weapons
    testing, but the Federal Government never leveled with us about
    the risks. In the 1950's, the government produced films
    advising if people just stayed indoors as clouds of fallout
    drifted through our communities, everyone would be safe. As a
    safety measure, the government suggested that a quick car wash
    would eliminate any pesky radioactive contamination. It seems
    harmless enough if it wasn't for the evidence of a disturbing
    increase in cancer that later traumatized these same
    communities; harmless, perhaps, if above-ground testing didn't
    spread radioactive elements across the country.
        Supposedly safe above-ground nuclear tests were stopped
    when it was proved that radiation was winding up in the bodies
    of American children through the milk that they were drinking.
    Underground testing was supposed to be the safe answer, or so
    the government said. The radioactivity would be trapped
    underground, never to get out except when some of the
    underground shafts burst open spewing radiation into the air,
    and now scientists are finding that plutonium thought to be
    trapped in these test shafts is moving through the ground water
    at alarming speed. So I have a healthy skepticism about Federal
    nuclear programs. My healthy----
        Mr. Barton. Could you summarize? It is amazing in the short
    time you have been in the Congress you are already right at
    home in going beyond the time limit. You are doing very well.
        Ms. Berkley. Yes, Mr. Chairman, I will be brief.
        H.R. 45 would be a terrible and needless mistake. If
    passed, it would be fought in court by Americans across this
    country. I would stand with them in court or on the roads and
    the rails if necessary to stop this disastrous policy. Thank
    you very much for your attention.
        Mr. Barton. Thank you. Thank you, Congresswoman.
        Ms. Berkley. May I submit my full remarks for the record.
        Mr. Barton. Your entire statement is in the record.
        [The prepared statement of Hon. Shelley Berkley follows:]
        Prepared Statement of Hon. Shelley Berkley, a Representative in
                       Congress from the State of Nevada
        Mr. Chairman, Members of the Subcommittee: Thank you for allowing
    me the opportunity to address you. This hearing puts me in mind of that
    old saying everything has been said but not everyone has said it.
        Before I begin my testimony I ask that Senator Richard Bryan's
    testimony be entered into the record. I come before you to give voice
    to the well-founded fears and concerns of the citizens of the Las Vegas
    Valley--which is my home District--and the citizens of the entire state
    of Nevada.
        Over one and a half million Nevadans live within an hour or so
    drive from the so-called temporary hi-level nuclear dump proposed by
    H.R. 45. This bill would dump over 70,000 tons of an incredibly lethal
    substance at one location . . . in southern Nevada. Those Nevadans--
    mothers, like me . . . fathers, sons, daughters, and grandparents
    deserve the same health and safety protections as every American. HR 45
    would deny equal protection under the law to the citizens of Nevada and
    future generations.
        But I will also discuss how this bill places Americans in all parts
    of the country at risk.
        When you live in a state that has been singled out as the target
    for a nuclear payload, you give close attention to the issue. Nevadans
    know just how toxic, how dangerous, how menacing high level nuclear
    waste really is. To give you some idea, a person standing next to an
    unshielded spent nuclear fuel assembly would get a fatal dose of
    radiation in just three minutes.
        Under H.R. 45, the concentrated level of deadly radiation at one
    place--in my home state--staggers the imagination. H.R. 45 would force
    all of the nation's high-level waste on the people of one state . . . a
    state where there is not even one nuclear reactor.
        For nearly two decades the nuclear industry and the Department of
    Energy have tried to convince Nevadans that high level nuclear waste
    transportation and storage is safe. Their argument basically is,
    ``We'll just stuff this high level nuclear waste into metal cans, screw
    the lids on tight, and there's nothing to worry about.''
        What's wrong with that picture? Well, if those cans of nuclear
    waste are so safe . . . WHY DO THEY HAVE TO BE SHIPPED FROM ALL OVER
    THE UNITED STATES AND DUMPED IN NEVADA?
        That question has haunted Nevadans for years. And our concerns have
    again intensified with H.R. 45. This bill would unleash high level
    nuclear waste on to the nation's highways and rail lines. It is this
    issue--the transportion of high level nuclear waste--that binds
    Nevadans with all Americans as potential victims of HR 45. Americans
    from all parts of the country would be exposed to unacceptable and
    unnecessary risk . . . because they live near the highways and
    railroads where the nuke trucks and trains would roll.
        Moving nuclear waste to Nevada will require well over 100,000 long-
    haul shipments. Nuclear waste will be speeding . . . around the clock,
    everyday, for 30 years . . . over our roads and rails. This should
    sound a national alarm.
        The deadly cargo will intrude on 43 states and hundreds of cities
    and towns. 50 million Americans live within just a half mile of the
    shipping routes. The waste will rumble through Birmingham, Alabama and
    Laramie, Wyoming. Portland, Maine and the suburbs of Los Angeles.
    Miami, Florida and Kansas City and St. Louis, Missouri. In short,
    nuclear waste will be on the move all over the country . . . all the
    time . . . for 30 years.
        The Dept. Of Transportation counted more than 99,000 incidents in
    which hazardous materials were released from trucks and trains, from
    1987 to 1996 . . . causing 356 major injuries and 114 deaths.
        The Dept. of Energy has described a plausible crash scenario
    involving high impact and fire that would contaminate an area of 42
    square miles with radioactive debris. It is truly horrifying to picture
    this happening in a populated area.
        We've been repeatedly told that shipping nuclear waste across the
    country and stashing it at a dumpsite is safe. But let's take a brief
    look at the history of how the federal government has handled nuclear
    projects. The lands around nuclear installations at Hanford, Washington
    . . . Rocky Flats, Colorado . . . Oakridge, Tennessee . . . Fernald,
    Ohio . . . are contaminated. The GAO concluded that 124 of our 127
    nuclear sites had been mismanaged by the DOE.
        Nevadans don't buy into the ``don't worry, be happy'' attitude
    toward radiation. And for good reason.
        I grew up in Nevada. Nevadans were proud to volunteer for the
    patriotic chore of playing host to above and below ground nuclear
    weapons testing. But the federal government never leveled with us about
    the risks.
        In the 1950's the government produced films advising if people just
    stayed indoors as clouds of fallout drifted through communities,
    everyone would be safe. As a safety measure, the government suggested
    that a quick car wash would eliminate any pesky radioactive
    contamination.
        It seems harmless enough . . . if it weren't for the evidence of a
    disturbing increase in cancer that later traumatized these communities.
    Harmless, perhaps, if above ground testing didn't spread radioactive
    elements across the country. Supposedly ``safe'' above ground nuclear
    tests were stopped when it was proved that radiation was winding up in
    the bodies of American children through the milk they were drinking.
        Underground testing was supposed to be the safe answer . . . or so
    the government said. The radioactivity would be trapped underground--
    never to get out . . . except that some of the underground shafts burst
    open, spewing radiation into the air.
        And now, scientists are finding that plutonium, thought to be
    trapped in those test shafts--is moving through the ground water at
    alarming speed.
        So I have a healthy skepticism about federal nuclear programs.
        My healthy skepticism persuades me that H.R. 45 is in fact a Trojan
    Horse for permanently dumping high level waste in Nevada. Make no
    mistake, there is nothing ``temporary'' about HR 45. This bill is a
    political vehicle to get the waste to Nevada, to be conveniently parked
    next door to Yucca Mountain, the site of a failing effort to justify a
    permanent dump.
        The past year has been marked by a quickening pace of scientific
    evidence that clearly eliminates Yucca Mountain as a safe place for
    nuclear waste. Water will saturate the dump. Those who thought Yucca
    Mountain would be dry for 10,000 years are stunned to discover that
    water is filtering through at an alarming rate.
        Yucca Mountain has been, . . . is, . . . and always will be jolted
    by earthquakes. In recent days, seismologists described swarms of
    earthquakes that rocked the area. To visit Yucca Mountain is to feel
    the earth move.
        And, a growing number of scientists fear that a Yucca Mountain
    dump, intended to isolate deadly radioactivity forever, may well
    explode into an environmental apocalypse of volcanic eruptions.
        It is not nice to try to fool Mother Nature. Where earthquakes,
    water, and volcanic activity are permanent dangers, we must not build a
    high level nuclear dump.
        The nuclear power industry should immediately cancel the Yucca
    Mountain project. The billions of dollars coming from ratepayers would
    be better spent finding a sensible and safe solution to nuclear
    disposal. Instead, we have HR 45. This bill exists because the nuclear
    power industry sees that the only way to keep the Yucca Mountain
    Project alive is to build a temporary dump next door.
        With the waste were stacked up at a temporary dump near Yucca
    Mountain, there would be a powerful motivation to make Yucca Mountain
    work out--somehow. Under those circumstances, I fear that the health
    and safety of current and future generations would be jeopardized for
    the sake of expediency. As the Nuclear Waste Technical Review Board has
    clearly stated, a temporary facility at the Nevada Test Site could
    prejudice the later decisions about the suitability of Yucca Mountain.
        HR 45 has its roots in expediency over public health and welfare.
        HR 45 throws out existing radiation safety standards . . . and
    replaces them with dangerous levels of radiation exposure that would be
    quote ``acceptable.'' The temporary dump can not meet the current
    standards, so HR 45 permits Nevadans to be exposed to 4 to 6 times the
    amount of radiation allowed at other waste sites. HR 45 allows exposure
    25 times the level set by the Safe Drinking Water Act.
        EPA Administrator Carol Browner said HR 45 would authorize
    ``exposures to future generations of Nevadans which are much higher
    than those allowed for other Americans and citizens of other
    countries.''
        Congress, in 1982, called for 9 potential nuclear storage sites to
    be assessed. By 1987, due to political considerations . . . not
    scientific findings . . . Yucca Mountain alone was targeted for site
    characterization.
        As it became increasingly clear Yucca Mountain is not suitable
    under the stringent and responsible law Congress passed in 1982, the
    rules have repeatedly been relaxed in favor of Yucca Mountain and
    against health and safety.
        And now comes HR 45, a bill which achieves nothing but risks the
    health and safety of current and future generations. The Nuclear Waste
    Technical Review Board advises that there are no compelling reasons to
    move the nuclear waste in the short term.
        HR 45 would be a terrible and needless mistake. If passed, it will
    be fought in court by Americans across the country. I would stand with
    them in court--or on the roads and rails, if necessary to stop this
    disastrous policy.
        Thank you.

        Mr. Barton. The Chair would recognize the honorable mayor
    of Caliente Kevin Phillips.
        The Chair is going to give the gavel to the vice chairman
    Mr. Stearns, and I will return.

      STATEMENT OF HON. KEVIN PHILLIPS, MAYOR, CITY OF CALIENTE,
                                 NEVADA

        Mr. Phillips. Mr. Chairman and members of the subcommittee,
    it is an honor for me to be here. My name is Kevin Phillips. I
    am the mayor of the city of Caliente, Nevada. May I comment
    that I would be the first to recognize at that table that I am
    the smallest of the smallest hubcaps surrounded by big wheels,
    but it is an honor for me to come and speak before you, and I
    consider myself somewhat uniquely qualified to address this
    body and let me say why.
        First, I represent a very local government perspective
    relative to this issue, particularly out of rural Nevada. My
    colleagues and fellow Nevadans have amply expressed the
    position of the State relative to this issue, but mine is from
    a local government perspective.
        We find today that that which was talked about in 1986 in
    the draft environmental assessment is still true, that the
    Union Pacific Railroad will in all likelihood be the main
    transportation corridor, if you will, for the transport of
    spent fuel to the Nevada test site in Yucca Mountain. My city
    sits at the very apex of that funnel.
        The second reason is that we have independently become
    highly educated over this issue. The Congress has provided for
    us funding through the Nuclear Waste Policy Act because we are
    one of 10 units of local government to independently study all
    things related to this issue, and I have made that a serious
    quest over the past 5 years. We have examined all sides of the
    matter, all that is given from the State of Nevada Nuclear
    Waste Project Office, from the Department of Energy, and from
    our own analyses, and so we come to you, I do, as an
    independent person brought up to speed on this issue.
        Third, I really am apolitical. Out where I live, we all
    take turns serving in various positions, and we consider
    ourselves public servants and not politicians. Meaning no
    disrespect, a politician is one who seeks to do whatever is
    necessary to become reelected. A public servant tries like
    crazy so that that does not happen again.
        Our approach to this issue really is quite simple. We
    believe, and have for some time, that despite the best efforts
    of the State of Nevada, ultimately the will of the Nation will
    build a repository at Yucca Mountain, Nevada, and that will
    become the final resting place for spent fuel and high-level
    radioactive waste.
        To us the situation is quite simple. If our delegation
    succeeds in its efforts to stop the construction of Yucca
    Mountain, we in Caliente and Lincoln County have nothing to
    worry about because we will not see the shipments. But if they
    do not, and to us the writing on the wall and, so to speak, the
    Indians on the horizons--I used to enjoy those old Western
    movies--looks quite ominous, and it appears that the odds are
    being stacked and are mounting in that effort. Therefore, we
    say to ourselves, what is the best thing that we can do to be
    prepared?
        You see, if our delegation succeeds, we will merely sit
    back in sleepy Caliente and continue to watch the trains go
    through our town already carrying over 25,000 shipments per
    year of hazardous materials; that if one becomes absolutely
    honest and takes a look at that real risk, not the perceived
    risk, associated with that transport, the materials that
    already provide potential risk to us are exponentially greater
    than that which the transport of spent fuel would provide to
    us.
        So again, our whole purpose here is to ensure that we as
    small communities, the little hubcaps that are the closest to
    the road that have to dodge the real rocks in the road, those
    who don't have the liberty to be 500 miles away in our State's
    capital, nor thousands of miles away in the Nation's capital,
    we are facing the real issues.
        And so with that in mind, we have worked for 12 years to
    become prepared. Our committee has seen the preparation of over
    50 technical reports, and we know from where we speak on this
    issue.
        We were asked specifically to comment about the viability
    assessment. In our judgment, it is just one more indicator that
    the time will come when Yucca Mountain becomes developed.
    Therefore we would hope and would wish that our State would
    prepare with at least a contingency plan.
        It is interesting that Congresswoman Berkley, who resides
    in Las Vegas, is new, and she doesn't perhaps recognize or
    remember that in 1995 former Senator Bennett Johnston laid the
    first bill down in this whole series of things. That bill if
    successful would have actually brought material to the Las
    Vegas Valley. Now if we hadn't perhaps stepped forward and
    suggested some alternative solutions, namely to stop the train
    in Caliente and offload there and follow, frankly, Mr. Bob
    Loux's suggestion from the Nevada Nuclear Waste Project Office
    that from some corridor east of Nevada from the Union Pacific
    Railroad we go directly to Yucca Mountain, thus bypassing the
    Las Vegas Valley, now if we perhaps hadn't come forward or had
    been willing or made that suggestion, then maybe the
    legislation would still be sending the material to Las Vegas.
        I hear the bell. I will conclude.
        [The prepared statement of Hon. Kevin Phillips follows:]
      Prepared Statement of Hon. Kevin Phillips, Mayor, City of Caliente,
                                     Nevada
        Mr. Chairman, my name is Kevin Phillips. I am mayor of the City of
    Caliente, Nevada. Thank you for inviting me to share a Nevada local
    government perspective on the Yucca mountain project and key aspects of
    HR 45. The positions, which have been adopted by Lincoln County and the
    City of Caliente, have not always appeared politically correct,
    especially in my home State of Nevada. My fellow local elected
    officials and I have for some time been convinced that despite the best
    efforts of the State of Nevada, Yucca Mountain would succumb to the
    will of the Nation and become the final resting-place for spent nuclear
    and high-level radioactive waste. Given this likelihood, the leadership
    of Lincoln County and the City of Caliente has sought for the past
    several years to understand and minimize waste management system risks
    and to understand and maximize potential waste management economic
    benefits. Lincoln County voters have, on two occasions now, confirmed
    to my fellow local elected officials and me that we are approaching the
    nuclear waste issues in a prudent and responsible manner.
        Lincoln County is one of ten units of local government which have
    been designated by the Secretary of Energy as ``affected'' pursuant to
    the Nuclear Waste Policy Act, as amended. What was identified in the
    1986 Yucca Mountain environmental assessment remains true today:
    Lincoln County and the City of Caliente are likely to serve as the
    gateway for most shipments of high-level radioactive waste entering
    Nevada which are destined for storage and disposal at the Nevada Test
    Site. More recently, it has become evident that mutual interests of the
    State of Nevada and DOE to minimize risks to a majority of Nevada's
    residents and the economy of southern Nevada will likely shift said
    risks to residents and businesses of Lincoln and other rural counties.
    These risk minimization objectives have been translated into proposed
    federal legislation now pending before Congress. HR 45 would result in
    construction and operation of a rail to truck intermodal transfer
    facility within the City of Caliente. The bill would also result in
    heavy-haul transport through the County until such time as a rail line
    across Lincoln County were constructed to provide direct rail access to
    the Yucca Mountain site.
        For the past twelve years, Lincoln County and the City of Caliente
    have conducted a joint repository oversight and impact alleviation-
    planning program. During this period, the eight-member Joint City/
    County Impact Alleviation Committee has diligently sought to provide
    guidance to local repository programs. The Committee, representing both
    geographic and disciplinary diversity, has met no less than 70 times
    and has invested over 1,200 hours of largely volunteer labor to
    understand the implications of the Nation's nuclear waste management
    program to the County and City. Utilizing funding provided by DOE, the
    Committee has overseen the preparation of over 50 reports documenting
    repository system outcomes for Lincoln County and the City of Caliente.
    Topics addressed within these studies include emergency response,
    ethnography, transportation routing, economic/demographic impact
    assessment, media amplification of risks, community development,
    transportation risk assessment, risk communication, tourism impact
    assessment, fiscal impact assessment, and risk perception, among
    others. The numerous research activities sponsored by the County and
    City of Caliente have utilized teams of highly trained and competent
    researchers representing both academic and private entities. The
    results of these studies have been widely communicated to residents
    throughout Lincoln County and in other areas of Nevada. Lincoln County
    and the City of Caliente have utilized this extensive information base
    in formulating and defending positions taken with regard to the Yucca
    Mountain repository program to date.
        With this thorough understanding of the Yucca Mountain project as
    background, Lincoln County and the City of Caliente have initiated a
    review of the Viability Assessment. In my opinion, the Assessment
    appears to assert the likely suitability of Yucca Mountain as a
    licensable repository site. The Viability Assessment confirms the
    County and City contention of the likelihood that Yucca Mountain will
    be developed and operated as a repository for nuclear waste. Our
    cursory review of the VA has reaffirmed the wisdom of the County and
    City focus upon risk minimization and benefit maximization activities.
        With regard to nuclear waste legislation pending before this
    Committee, HR 45 will require that the City of Caliente serve as host
    to intermodal transfer and other spent nuclear fuel transport
    operations. The City has responded to requests by this Committee to
    ensure that HR 45 related risks are minimized and benefits maximized.
    Inclusion by this Committee of City suggested provisions would result
    in a radioactive waste management system which is sensitive to local
    issues. I regret however, that a comprehensive benefits package for the
    State of Nevada remains a missing element to the bill. When developed
    and fully operational, the Yucca Mountain project will afford this
    Nation with nearly immeasurable benefits. In my opinion, Nevada should
    be afforded a benefits package of extraordinary scale. Rather than
    being made to feel as though they have been ``screwed'', Nevada
    residents should be granted every sense that the Nation places great
    value on the service that the State and its populous will render in
    solving the pressing nuclear waste management issue. In addition to
    important and appropriate benefits included for certain local
    governments, HR 45 should be amended to include a bold program of
    benefits for the State of Nevada, perhaps focused at development of
    science and technology related industry on and around the Nevada Test
    Site.
        I would encourage the Committee to add the following additional
    finding to Section 3 of the bill:

    the State of Nevada, Lincoln County, the City of Caliente, and Nye
    County are each performing a significant service to the United States
    in resolving a critical national environmental problem for which the
    Nation is indebted and for which equitable and just compensation for
    said service is fully warranted;.

        A new sub-section should be added to HR 45, Title I, Section 101 as
    follows:
    OBLIGATIONS OF THE SECRETARY OF DEFENSE.
        (a) The Secretary of Defense shall provide a safe secure corridor
    across the Nellis Range from Lincoln County through Gate 700 onto the
    Nevada Test Site, for the transportation by rail or truck of spent
    nuclear fuel and other high-level radioactive waste.
        Section 201 of the bill should be amended to remove the requirement
    that the Secretary of Energy utilize only heavy-haul transportation.
    Such a requirement may pose unnecessary congestion and vehicular
    conflicts upon Nevada's highways. Because the State of Nevada might be
    compelled to permit each and every heavy-haul shipment, use of such
    vehicles might pose an unnecessary burden upon the State. Further,
    emphasis upon heavy-haul fails to recognize that innumerable shipments
    of spent nuclear fuel have been successfully completed using existing
    legal weight cask technology.
        Section 201 (h) of the bill should be revised to include training
    and equipping of local emergency first responders and hospital staff in
    the City of Caliente.
        Section 203 of the bill should be amended to include a requirement
    that the Secretary of Energy use results of the DOE's Motor Carrier
    Evaluation Program as one factor in selecting transporters of spent
    nuclear fuel and other high-level radioactive waste. Lincoln County and
    the City of Caliente believe that effective risk minimization is only
    possible when DOE utilizes the best of the best motor carriers. In
    addition, the Secretary should be required to ensure that selected
    motor carriers have in place effective driver and operations team
    training and quality assurance programs.
        HR 45 should include an amendment to Section 114 of the Nuclear
    Waste Policy Act, which would require inclusion of the comments of
    affected units of local government, in any site recommendation report
    submitted by the Secretary to the President.
        Let me close by encouraging the Committee to recall what I and my
    fellow local elected officials have been through these past few years.
    As a result of our belief that the Nation was committed to disposal of
    spent nuclear in Nevada we adopted Joint Resolution 2-95 which provided
    specific recommendations to the Secretary of Energy. In response to our
    passage of the resolution, the Nevada Attorney General filed a lawsuit
    to remove the entire Caliente City Council and two Lincoln County
    Commissioners from office. After being censored by the Nevada
    Legislature and facing a stiff legal defense by the County and City,
    the Attorney General dropped her lawsuits. One of the Commissioners
    whom the Attorney General sought to remove from office subsequently
    survived a recall vote by an overwhelming margin.
        My fellow local elected representatives and I have paid a heavy
    financial and emotional price to defend our fiduciary responsibility
    and right to work with the Secretary of Energy and the Congress to
    ensure that as legislation such as HR 45 is considered, the public
    health, safety, and welfare of our residents is protected and enhanced.
    I trust you will take seriously our recommendations for further
    amendment of HR 45.

        Mr. Stearns [presiding]. Well, Mr. Mayor, we thank you for
    your testimony. I think I am going to ask maybe just one
    question, sort of hypothetical for the delegation, and you
    really don't have to answer it because it is hypothetical. If,
    in fact, that all the scientific evidence comes out and it
    appears that it is a safe site, and I know we can't assume that
    everything is 100 percent with scientific evidence, but let's
    say there is a preponderance of evidence to show that from the
    scientific evidence, that indeed the repository at Yucca
    Mountain would be safe, would you still be objecting to this
    bill H.R. 45? Is your case basically on scientific evidence?
    Because the next case would be in terms of tourism, because the
    potential impact of having the site there affects the tourist
    economy is some of the arguments we hear. But we have had
    nuclear tests at the Nevada test site, and obviously it hasn't
    hurt tourism, and it hasn't hurt the population, and so whether
    it is scientific evidence or whether it is the perception to
    the tourist industry, both those arguments are being made.
        So I guess the question, Governor, is hypothetically
    whether, you know, your case is still strong if the scientific
    evidence is overwhelming. And if you want to do this in a
    written statement, I can understand, because this is a
    hypothetical.
        Mr. Guinn. Can I tell you one thing? I have been Governor
    now for something like 32 days. One thing I have learned is not
    to try to answer hypothetical questions.
        I would say to you we are still looking for scientific
    data, and so far, after $6 billion and the fact that the
    Federal Government through the Department of Energy cutoff all
    of our funds over a year ago for us to even look at what they
    had in a scientific fashion has left us kind of standing on our
    own. So we would like to see scientific data that we could
    analyze, and we are not getting that opportunity at this time.
        So I would be happy to answer for you in a written form
    with more details to how it would affect us, but certainly the
    people of Nevada, we are not convinced over the last 12 plus
    years of high-level, intensive work that has gone on. Plus,
    over the last 20 years since this bill has been discussed and
    talked about in the State of Nevada, we are not convinced that
    it is safe for us as Nevadans, and we don't think it is safe
    traveling through at the level we are talking about.
        The mayor and I are certainly coming from two different
    angles here, there is no doubt about it, but in my position for
    the State of Nevada, we are not ready to accept anything we
    have seen so far, and especially in light of the fact that it
    seems very suspicious that we had our funds cut off.
        Mr. Stearns. Mr. Mayor, I want to ask you, since you have
    sort of an opinion that is a little different than the
    Governor, do you think, in your opinion, and this, again, you
    might not have enough information, do the people in your town
    or the people that you are dealing with have more of a sympathy
    to your point of view? I guess what I am asking is what do you
    see the people of the State feeling? What is your sense?
        Mr. Phillips. With due respect, may I comment briefly and
    let the Governor know that I am with him in the comments he
    made here certainly. Nevada deserves very much to do oversight
    and have funding from the Federal Government for that to
    happen. It is our position and belief after observing this
    thing that that oversight cannot be politically based, and that
    which has happened in the past. I strongly suggest that Nevada
    be granted oversight funds, but that it come through the
    university system so we do get science and not politics
    involved with the issue.
        In response now to your direct question to me, Mr.
    Chairman, we are fortunate in Lincoln County in that we have
    4,000 people there. The task of educating those 4,000 is much
    simpler. Therefore, we have made great efforts to bring our
    people up to speed. A vote reflected in the last election on
    this issue, an advisory vote, was overwhelmingly in favor of us
    continuing the position which we take, which is to understand
    and minimize risk, understand and see that mitigation occurs,
    and understand and maximize benefits associated to that.
        Mr. Guinn. And I would say, Mr. Chairman, that the mayor is
    talking about a specific location, local community, and in
    looking at the indication of all of our people, which is
    something like 78 percent are absolutely vehemently against
    storage at Yucca Mountain of high-level waste, 78 plus percent
    of our people overall, it has been very consistent, it is going
    up. It has gained about 12 or 15 points in the last few years,
    and I would say to you that that is not going to change.
        We still believe very strongly that there are alternative
    methods. We think that when you can store something that is
    being produced at a specific location for a hundred years and
    that has been declared safe by the science that we have seen
    through methods that we already have, then we believe that
    additional research as to what to do with this material will be
    developed through this great country of ours in a shorter
    period of time than that.
        Mr. Stearns. Well, I am going to conclude and just make an
    observation. Mayor Phillips has pointed out, though, that the
    actual town where the depository will be transferred from the
    train to the trucks, these people seem to have an understanding
    that ultimately it is going to happen. Two, they are sort of
    sympathetic to what we are trying to do and seem to be fairly
    well-educated on the issue. Now, the 78 percent figure you
    used, I don't know whether these people have as much education,
    but the people who are directly impacted seem to have a
    sympathy.
        So what I am saying is obviously we are going to try and
    work with you and others, but there seems to be a difference of
    opinion, and it seems like the town is a lot closer to it. That
    is just an observation, and I am not challenging it.
        Mr. Guinn. That case would be the case for the people in
    Caliente, but you must remember not all of this waste could be
    shipped to Yucca Mountain only through Caliente. All of
    California and the northern part of the area would come through
    the valley we are talking about. I would say there is certainly
    some difference there, but not for the majority of our people
    and the masses of our people.
        We have been educated quite well. There are newspaper
    articles every day. There are statements every day by the
    various people, so our people are fairly well-educated in this
    area and know what they want.
        Mr. Stearns. Staff has asked me to do this, and I am very
    happy to do it, that the reason the money was cut off was
    because of abuses, perceived abuses, and we would like to make
    part of the record some of the Department of Energy statement
    of September 9, 1998, where it talks about why they froze the
    money and so forth, and it is presented here, and so without--
    and the GAO report on the Nevada's use of nuclear waste grant
    funds, and with unanimous consent I will make this part of the
    record, too.
        [The information referred to follows:]

                                   Department of Energy
                                                 Washington, DC
                                                      September 9, 1998
    Mr. Robert R. Loux, Executive Director
    Agency for Nuclear Projects
    Nuclear Waste Project Office
    Carson City, Nevada 89710
        Dear Mr. Loux: I am writing to you in response to your June 22,
    1998 letter to Eric J. Fygi, then Acting General Counsel, transmitting
    the State of Nevada's comments addressing the findings contained in the
    KPMG Peat Marwick report ``Nevada's Use of Nuclear Waste Funds Between
    May 1992 and September 1995.''
        In Mr. Fygi's June 11, 1998 letter to you transmitting the Peat
    Marwick report, he provided you with a final opportunity to provide any
    documentation you may have demonstrating that any portion of the
    challenged expenditures was for statutorily authorized purposes. While
    you have provided information regarding your interpretation of the
    legal authorities and principles involved, no further documentation has
    been provided. Furthermore, Peat Marwick has reviewed the State's
    comments and determined that no new information has been provided that
    would cause Peat Marwick to revise its report or any of its findings.
    (A copy of this Peat Marwick report is enclosed.) Therefore, as we have
    previously indicated, the Department will take steps to reallocate the
    $691,835 presently frozen in the account that the Department had
    maintained for the State as a means of recouping the funds Peat Marwick
    concluded were not shown to have been spent for statutorily authorized
    purposes.
        In your June 22, 1998 letter, you comment on the Department's
    guidelines on spending restrictions that were prepared, consistent with
    the recommendation of the General Accounting Office in its 1996 report,
    for use in Peat Marwick's audit of Nevada's use of federal funds
    between May 1992 and September 1995. You state that much, if not all,
    of the confusion reflected in the 1996 General Accounting Office report
    and the 1998 Peat Marwick report could have been avoided if the
    Department had provided the State with its interpretation of the
    funding restrictions. You also state that the guidelines misinterpret
    the States's role and prerogatives under the Nuclear Waste Policy Act
    and seek to inappropriately constrain the State's use of federal funds.
    We believe the guidelines are simply a restatement of the statutory
    restrictions, consistent with the interpretation outlined in the 1996
    GAO report and endorsed by Peat Marwick in its most recent report. We
    recognize. and endorse the important role the State is granted in the
    Nuclear Waste Policy Act to participate in the Civilian Radioactive
    Waste Program. However, use of federal funds to perform that role must
    be consistent with any applicable statutory restrictions. To avoid any
    possible confusion in the future, we will provide such guidelines at
    the time Congress appropriates funds for the State oversight function.
                Sincerely,
                                             Mary Anne Sullivan
                                                        General Counsel
    Enclosure

        [The GAO Report, GAO/RCED-96-72, is retained in
    subcommittee files.]
        Mr. Guinn. That is true. I am a new Governor. We have new
    people, and what we need is we need to have rules set forth.
        Mr. Stearns. Have you seen this report?
        Mr. Guinn. No, I haven't. I have been briefed on it. I
    would be happy to go back and read it in great detail. I assure
    you that the issue I am familiar with there is a rule was made
    after we had spent some money through the grant that indicated
    we were not supposed to use any expenditures for outside the
    State. And what happened is we were talking to people in Salt
    Lake and other places about transportation, and that was a new
    rule set forth, and I think that could be corrected if that is
    the specific rule, but we still need money for the scientific
    analysis. We are a small State, and we just cannot compete
    without that money to be able to look at the data, and so far
    we don't feel comfortable with the data we are looking at just
    from our own scientific people we have in State.
        Mr. Stearns. Thank you, Governor. I now turn over the
    microphone for questions to the ranking member Mr. Hall.
        Mr. Hall. Thank you, Mr. Chairman.
        And Governor, thank you and the mayor for your input. You
    are doing exactly what I would be doing if I were Governor and
    mayor of the area.
        A lot of us find ourselves in the position of admiring very
    much the opposition, but needing the legislation. I am original
    cosponsor on 45 back in 1982, and I would say that we are here
    today because you have sent very able and very capable Members
    to the House and to the Senate that have represented you well.
    They have been men that we had and women that we had such high
    regard for. Mr. Gibbons, we have debated this with him before,
    and he is very knowledgeable. He is a gentleman. He is highly
    admired and respected here. That is probably one reason we are
    still here. We might well have already passed this thing
    through, and you would be more concerned about doing it safely,
    as the mayor has suggested here, than having it actually come
    to pass. So I respect you, and you have done a good job with
    your presentation here today.
        You represent a beautiful city that I have visited many
    times. I have been going out there ever since an entrepreneur
    named his project The Flamingo. It was a long, long time. I
    heard the chant, ``Nine's a line, a front's away and the back
    to pay,'' and sometimes didn't like it, but I thank you for
    your time here, and I thank these Members of the Congress who
    are representing you well.
        I guess I have a question of Mr. Phillips, the mayor, who I
    think--I admire what you are trying to do for your people also
    and the way you are trying to do it. I guess we would be very
    interested in doing the repository properly in a way that
    safeguards folks along the line and those that live closer to
    the site than most of us ever will. So I guess it is only fair
    to those of us who are asking your State to shoulder the burden
    to listen to your request and try to consider your concerns. So
    do you feel that the Energy Department is doing this? Are they
    listening to you? Do you get audience there?
        We don't have the Chairman of Energy here today, but we are
    going to have him here a little bit later. It is my
    recollection that the President sometime back said as Secretary
    he would have full authority to carry out his mission in this
    area. Considering that fact, that Secretary Richardson has been
    given this authority, along with the fact that he is one of the
    former colleagues of this committee, I do look forward to
    hearing him testify here, and we don't really want to pass a
    bill that the President is just going to veto and then we have
    to go into the override procedure. We would really like to pass
    a bill, if it is going to be a bill and it is going to pass and
    it is a good bill, that perhaps, no pun intended, that you can
    live with. I don't--I wouldn't like to think that it was a
    sense of death. I wouldn't vote for it in a minute if I thought
    that.
        So, Mayor, do you feel like your concerns are being
    considered, and those that aid you and advise you that are more
    technically inclined than you or me or the Governor might be,
    that they are being considered?
        Mr. Phillips. Secretary Richardson has been very gracious,
    come to Nevada two times recently, even held a meeting with
    some of us little local people and some county commissioners
    and myself, and we appreciate that we have a very good dialog
    with Mr. Barrett.
        Our issue here is one of transportation. In our
    circumstance and situation, if there is a weakness in the
    Department of Energy's program from our perspective, it is that
    there is no work being done presently to prepare for the
    transportation issue. It took 20 years to develop the detailed
    transportation plans for the WIPP facility in New Mexico, and
    yet at the present time there is not any work being done on
    that transportation issue. That I see as a weakness that should
    be corrected.
        Mr. Hall. Governor, do you have anything to add to that?
        Mr. Guinn.No.
        Mr. Hall. I will yield back my time, and we will get on to
    the other.
        Mr. Barton. The Chair would recognize the gentleman from
    Ohio Mr. Sawyer for 5 minutes.
        Mr. Sawyer. Mr. Chairman, I am not going to take advantage
    of that opportunity to question. I simply want to thank both
    the Governor and the mayor. As a former mayor myself, I fully
    appreciate the central mission that you have and the discomfort
    that you express on behalf of the citizens both of your
    community and your State. I am grateful for your time here, and
    we will pay close attention to your thoughtful comments.
        Mr. Barton. The Chair then would recognize Mr. Wynn for 5
    minutes for questions if he so wishes.
        Mr. Wynn. Thank you, Mr. Chairman. I, too, would defer
    questions at this time, but I certainly would look forward to
    working with the Governor and the mayor because I realize this
    is a serious issue, and your point regarding transportation is
    certainly well taken. Hopefully we can work out a suitable
    resolution.
        Mr. Barton. The Chair would--has Mr. Shimkus been
    recognized for questions? The Chair would recognize Mr. Shimkus
    for 5 minutes.
        Mr. Shimkus. I have no questions.
        Mr. Barton. The Chair would recognize himself for 5
    minutes. I won't take the complete 5 minutes.
        Governor, it is my understanding that while I was away
    voting, that you in either response to a question or statement
    you made, that you expressed some concern about being able to
    use the Federal resources that are available in the Nuclear
    Waste Policy Act in terms of monitoring the site development
    and the safety.
        I can assure you that as the former subcommittee chairman
    of the Oversight and Investigation Subcommittee, I shared those
    concerns, and at my request we had several studies done and
    audits done by the Department and the General Accounting
    Office, and it was determined that the previous Governor and
    the executive director for the Agency of Nuclear Projects in
    Nevada, Mr. Robert Loux, were misallocating the vast majority
    of the funds that they had available, and that is the reason
    about $700,000 had to be frozen.
        I can assure you that so long as under your leadership and
    the excellent work of the Congressmen and Senators you use
    those funds for what the law said they could be used for, there
    will be no problem.
        Mr. Guinn.We have talked to Secretary Richardson, and he
    has indicated he does have it back in his budget, the $5.4
    million or so, and we are now funding it ourselves, but, again,
    I think the indication that we have and the fact that we have
    had the audit gives us much more direction, and I assure you
    that that is exactly what would be followed.
        Mr. Barton. You are the Governor of the State, and this is
    an important issue in your State. And we understand, I think,
    from both sides of the aisle that no matter where the
    repository, the interim storage, is sited, the people near that
    are going to have legitimate concerns about the safety of it,
    and the transportation to and from it, and the operation of it,
    and the life cycle and all of the things that you raise in your
    testimony. And the Nuclear Waste Policy Act did provide some
    funds for the Federal Government to give to the State to
    address those concerns, and those funds will be available, and
    they will be under your leadership allowed to be used, and I
    think in a way that your citizens are going to feel very
    comfortable that their concerns are being addressed.
        Mr. Guinn.Thank you very much, Mr. Chairman.
        Mr. Barton. Does Mr. Largent wish--the Chair would yield
    back the balance of his time. Does the gentleman from Oklahoma
    wish 5 minutes for questions?
        Mr. Largent. No, sir.
        Mr. Barton. Does the gentleman from Mississippi Mr.
    Pickering wish 5 minutes for questioning?
        Mr. Pickering. No.
        Mr. Barton. Is Mr. Strickland, does he----
        Mr. Strickland. No, sir.
        Mr. Hall. Hurry up before Markey gets here.
        Mr. Barton. We will take the wise counsel of the gentleman
    from Texas. We are going to excuse this panel. There will be
    written questions for the record, and we will also allow
    written questions for Mr. Gibbons, Ms. Berkley, and our two
    Senators who could not be here because of business in the
    Senate. Thank you, Governor, and thank you, Mayor.We would like
    to call forward our next panel. We have the distinguished
    pleasure to have the entire National Regulatory Commission with
    us today. We have the Honorable Shirley Ann Jackson, who is the
    Chairwoman of the Nuclear Regulatory Commission, and she is
    accompanied by Commissioner Greta Dicus, Commissioner Nils
    Diaz, Commissioner Edwin McGaffigan, and Commissioner Jeffrey
    Merrified. On behalf of the Department of Energy, we have Mr.
    Lake Barrett, who is the acting Director of the Office of
    Civilian Radioactive Waste. We have Mr. Jared Cohon, who is the
    Chairman of the Nuclear Waste Technical Review Board. We have
    the Honorable Robert Perciasepe, who is the Assistant
    Administrator for Air and Radiation of the Environmental
    Protection Agency, and we have Mr. Stuart Schiffer, who is the
    Deputy Assistant Attorney General for the Commercial Litigation
    Branch of the Civil Division of the U.S. Department of Justice.
    I hope we have enough chairs so we can get everybody at the
    witness table. We welcome each of you ladies and gentlemen to
    our hearing.
        It is my understanding, Chairwoman Jackson, that you are
    going to speak for the Nuclear Regulatory Commission, and none
    of the other commissioners wish to give a statement. Is that
    correct? We will recognize you. Your entire statement is in the
    record in its entirety, and we will recognize you for 5 minutes
    to summarize it.

       STATEMENTS OF HON. SHIRLEY ANN JACKSON, CHAIRMAN, NUCLEAR
          REGULATORY COMMISSION, ACCOMPANIED BY GRETA DICUS,
       COMMISSIONER; NILS DIAZ, COMMISSIONER; EDWARD McGAFFIGAN,
      COMMISSIONER; AND JEFFREY MERRIFIED, COMMISSIONER; LAKE H.
    BARRETT, ACTING DIRECTOR, OFFICE OF CIVILIAN RADIOACTIVE WASTE
      MANAGEMENT, DEPARTMENT OF ENERGY; JARED L. COHON, CHAIRMAN,
       NUCLEAR WASTE TECHNICAL REVIEW BOARD; ROBERT PERCIASEPE,
     ASSISTANT ADMINISTRATOR FOR AIR AND RADIATION, ENVIRONMENTAL
      PROTECTION AGENCY; AND STUART E. SCHIFFER, DEPUTY ASSISTANT
    ATTORNEY GENERAL, COMMERCIAL LITIGATION BRANCH, CIVIL DIVISION,
                         DEPARTMENT OF JUSTICE

        Ms. Jackson. Mr. Chairman and members of the subcommittee,
    thank you for this opportunity to present the views of the U.S.
    Nuclear Regulatory Commission, the NRC, regarding the U.S.
    program for management and disposal of high-level radioactive
    waste and spent nuclear fuel. I will discuss briefly----
        Mr. Barton. Will the gentlelady suspend. We would like
    order in the hearing room so we can hear the distinguished
    Chairwoman. I know it is crowded, and with the lights on it is
    probably warmer than it should be, but we need to give her
    courtesy so that members of the subcommittee can hear her
    testimony.
        Ms. Jackson. I will discuss briefly our observations on the
    progress of the DOE program to characterize the Yucca Mountain
    site of the potential geologic repository including the
    recently released viability assessment, our general views on
    the Yucca Mountain standards prepared by the Environmental
    Protection Agency, and our position on H.R. 45, the Nuclear
    Waste Policy Act of 1999.
        We continue to progress in meeting NRC obligations that
    relate to licensing of a geologic repository under existing
    law. This includes developing the regulatory framework for
    licensing and the prelicensing consultation with the DOE and
    other stakeholders. The NRC staff has concentrated on a
    thorough review of key technical issues, preparing reports that
    ultimately will form the basis for our Yucca Mountain review
    plan.
        Most recently the NRC staff has been reviewing the December
    1998 DOE viability assessment with a focus on highlighting any
    major concerns with the DOE test plans, design concepts, or
    total system performance assessment, concerns that might result
    in an incomplete or unacceptable license application.
        The NRC will receive the--the Commission will receive the
    NRC staff comments on the viability assessment in March. To
    date, the NRC staff has not identified any major concerns with
    many aspects of the viability assessment. However, we agree
    with the DOE that its quality assurance program needs to
    improve.
        We have a chart, and as you can see on it, the NRC High-
    Level Waste Regulatory Program remains on schedule in preparing
    to review a license application from the DOE in 2002. The NRC
    has cooperated with the EPA in its development of Yucca
    Mountain standards. We understand that the EPA may soon move
    forward with interagency review of the draft standards. The NRC
    plans to review the draft standards when they become available
    to determine whether they raise any implementation issues.
        In order to meet the time constraints and to provide the
    public early notice and opportunity for involvement, we
    developed our implementing regulations in parallel with the EPA
    efforts. The Commission recently approved publishing for public
    comment our proposed rule, 10 CFR Part 63, to implement the EPA
    Yucca Mountain standards. This proposed rule includes an
    individual dose limit of 25 millirem per year for the expected
    dose to the average member of the group that receives the
    greatest exposure, a standard that we believe would protect
    public health and safety and is consistent with national and
    international recommendations for radiation protection.
        As our proposed rule makes clear, the NRC will amend these
    regulations, if needed, to conform to the final EPA standards
    or to any new legislation that may be enacted.
        The Commission believes that the proposed legislation, H.R.
    45, contains the basic elements of an effective framework for
    safe management and disposition of high-level radioactive waste
    providing an integrated spent fuel management system--onsite
    storage, centralized interim storage, and deep geologic
    disposal, with a transportation system to link these elements.
    In our written testimony, we have included several suggestions
    and comments that we believe would enhance the proposed
    legislation.
        In summary, the Commission believes that, whether under
    existing law or in a revised legislative framework, the U.S.
    High-Level Radioactive Waste Program needs both statutory and
    institutional stability in order to proceed in an orderly,
    efficient, timely, and effective fashion. We believe that H.R.
    45, when coupled with sufficient resources to make progress in
    all phases, can provide this needed stability.
        Thank you for this opportunity to present our views. We
    would be happy to answer any questions that you may have.
        [The prepared statement of Hon. Shirley Ann Jackson
    follows:]
       Prepared Statement of Hon. Shirley Ann Jackson, Chairman, Nuclear
                             Regulatory Commission
                                    overview
        Mr. Chairman, members of the Subcommittee, the Nuclear Regulatory
    Commission (NRC) is pleased to testify regarding the U.S. program for
    management and disposal of high-level radioactive waste and spent
    nuclear fuel. I also welcome the opportunity to discuss our
    observations on the progress of the Department of Energy (DOE) program
    to characterize the Yucca Mountain Site as a potential geological
    repository, including the recently-released viability assessment, and
    to present the Commission views on H.R. 45, the ``Nuclear Waste Policy
    Act of 1999.'' I also will address the NRC efforts to establish site-
    specific licensing requirements for the proposed repository, and our
    general views on the Yucca Mountain standards prepared by the
    Environmental Protection Agency (EPA).
        The NRC continues to make progress under the Nuclear Waste Policy
    Act (NWPA) and the Nuclear Waste Policy Amendments Act (NWPAA). We are
    meeting our current obligations to provide a regulatory framework for
    the licensing of a geologic repository and to consult with the DOE and
    other stakeholders in advance of the license application. As part of
    our overall pre-licensing strategy, we are concentrating our review on
    those key technical issues that are most important to repository
    performance and, therefore, to licensing. Since we refocused and
    streamlined our program in Fiscal Year 1996, I can report that the NRC
    staff has progressed, completing substantive reports on the status of
    resolution, at the staff level, of each of the key technical issues.
    These reports ultimately will form the basis for the Yucca Mountain
    review plan that will be used to guide our review of a license
    application.
                              viability assessment
        I will begin by discussing the status of the NRC review of the DOE
    December 1998 Viability Assessment (VA). We received the VA in late
    December, and review by the NRC staff is continuing. The Commission
    expects to receive the results of the NRC staff review in mid-March.
    The principal objectives of the NRC review are to assess the DOE
    program in preparing a high-quality license application, to highlight
    significant information deficiencies, and to identify any major
    concerns with the DOE test plans, design concepts, or total system
    performance assessment. We define ``major concerns'' as ones that might
    result in an incomplete or unacceptable license application.
        These objectives are consistent with NRC responsibilities for
    preliminary consultation under the NWPA. I am pleased to report that
    the NRC staff has identified no major concerns with many important
    aspects of the VA. We believe this can be attributed, in part, to the
    frequent, open interactions the NRC staff has maintained with the DOE
    over the past year in preparing the VA. During these public
    interactions, the DOE has furnished substantial information to our
    staff in advance of the VA release, which has facilitated our review.
    We are confident that the DOE recognizes many of the areas where
    additional work is needed prior to licensing. However, the NRC staff is
    identifying some specific issues during its review, which the staff
    will present to the Commission in March 1999.
        For example, we expect to highlight the increased attention the DOE
    must give to the implementation of its Quality Assurance (QA) program
    for Yucca Mountain. As part of our continuing pre-licensing
    interactions, the NRC staff has identified persistent QA deficiencies
    in the DOE program. While most of the issues were first brought to
    light by the DOE itself, the DOE needs to be more effective in
    preventing and resolving these problems in a timely manner. We
    understand that DOE management agrees with the need for improving the
    QA program and is moving aggressively to make the necessary upgrades
    prior to submitting its license application. The DOE recently briefed
    the NRC staff (December 9, 1998) on its plans for corrective action,
    and plans to meet with the NRC in April 1999 to present their results.
    In response, the NRC has formed a team to determine whether the DOE has
    identified the problems adequately and implemented the needed
    corrective actions.
        We are encouraged by the clear improvements in the overall DOE
    program, including planning, focusing on a ``safety case'' for
    licensing, and communicating with the NRC. However, it is important to
    emphasize that the ultimate responsibility rests with the DOE for
    demonstrating that licensing requirements are met to protect public
    health and safety and the environment. The Commission independently
    must assess and find ``with reasonable assurance'' that such
    demonstration has been made prior to licensing the repository. Among
    other things, the timely NRC review of a potential license application,
    consistent with the schedules laid out in the VA, depends on receipt of
    a high-quality license application from the DOE, a scientifically based
    and demonstrable standard on dose limits, and sufficient resources for
    the NRC to maintain its independent technical review capability.
        The NRC HLW program remains on schedule consistent with our
    responsibilities under the Nuclear Waste Policy Act of 1982, as
    amended, and the Energy Policy Act of 1992. We are developing the
    regulatory framework and review criteria to prepare ourselves to review
    a repository license application from the DOE in 2002. We expect to
    comment on the DOE draft Environmental Impact Statement (EIS) for a
    proposed Yucca Mountain repository late this Fiscal Year, and to
    provide comments on the proposed EIS at the time of the site
    recommendation in Fiscal Year 2001. Through early NRC staff
    identification and resolution of key technical issues for repository
    licensing, we are preparing to complete our review of the DOE license
    application in three years. We also have recently completed rulemaking
    to establish a Licensing Support Network, using web-based technology,
    to facilitate access to supporting documents to expedite the review of
    the license application.
                          draft proposed epa standards
        Let me turn now to your second area of interest, the Environmental
    Protection Agency (EPA) efforts to develop radiation standards for the
    repository. The EPA is obligated, under the Energy Policy Act of 1992,
    to issue final health-based standards for Yucca Mountain that are based
    on, and consistent with, the recommendations and findings of the
    National Academy of Sciences (NAS). The NAS reported its findings to
    the EPA on August 1, 1995. The Commission, under the same Act, must
    modify, if needed, its technical criteria to be consistent with the
    final EPA standards within a year of their issuance.
        The Commission is aware of continued efforts by the EPA over the
    last two years to develop radiation standards for Yucca Mountain. To
    facilitate this process, the NRC and EPA staffs have held several
    meetings for the exchange of information. The Commission also is aware
    of recent discussions between the EPA and the DOE, to which the NRC is
    not always privy, that may have resulted in revisions to the current
    EPA approach. The EPA and DOE staffs have advised the NRC staff that
    the EPA soon may move forward with interagency review of the draft
    standards. The NRC plans to review these draft standards when they
    become available to determine whether they raise any implementation
    issues.
        Because we anticipate that we will have only a very short period in
    which to issue final implementing regulations once the final EPA
    standards are issued, the Commission initiated its own rulemaking in
    parallel with the development of the EPA standards. The NRC staff
    provided the Commission a draft proposed rule last October, which the
    Commission released to the public concurrent with the Commission
    review. The Commission recently approved publication of proposed
    regulations at 10 CFR Part 63 with some minor modifications. In fact,
    the proposed rule is expected to be published for public comments soon.
    We believe that we have an obligation to make public now our intended
    approach for implementing the health-based standards called for by the
    Congress, in order for the DOE to begin preparing a license
    application, and to allow for timely and meaningful public involvement
    in the development of our implementing regulations.
        Our proposed regulations include an individual dose limit, which we
    believe is generally consistent with the requirements of Section 801 of
    the Energy Policy Act and with the recommendations of the National
    Academy of Sciences. We propose an all-pathways standard of 25 millirem
    per year expected dose to the average member of the group which
    receives the greatest exposure, the so called ``critical group.'' We
    believe such a standard is protective of public health and safety and
    the environment. It also is consistent with standards for other waste
    management facilities licensed by the NRC, and with national and
    international recommendations for radiation protection. As our proposed
    rule makes clear, the NRC will amend its regulations in the proposed 10
    CFR Part 63, if needed, to conform to the final EPA standards, or to
    any new legislation that may be enacted.
                                    h.r. 45
        Finally, I will offer our views on the proposed legislation, H.R.
    45, the subject of the hearing this morning. In general, the Commission
    agrees with the fundamental approach taken in H.R. 45. This Bill
    contains the basic elements of an integrated system for the management
    and disposal of high-level radioactive waste that is necessary for the
    protection of the public health and safety, the environment, and the
    common defense and security. These elements include central interim
    storage and deep geologic disposal, together with a transportation
    program linking the elements together. Moreover, H.R. 45 recognizes
    that the overall, long-term success of the national program to manage
    spent fuel and other high-level radioactive waste requires a permanent
    disposal solution.
        As an interim measure, the NRC considers available technologies for
    wet and dry storage of spent fuel at reactor sites to be safe, but we
    view dry storage as the preferred method for supplementary storage of
    spent fuel at operating plants. Continued at-reactor storage, for an
    interim period, will continue to protect public health and safety.
    However, we believe that centralized interim storage of spent fuel in
    dry cask storage systems offers several beneficial features. A
    centralized interim storage facility, when compared with dispersed
    storage at about 75 sites across the country, would allow for more
    focused inspection and surveillance by both the DOE and the NRC. In
    addition, such a facility would be more efficient (especially at
    permanently shut-down facilities), and would afford operational and
    programmatic benefits for the DOE program for accepting waste from
    utilities. However, as the regulator of such a facility, the NRC takes
    no position as to where a centralized facility should be located. For
    any proposed site, the Commission must make the appropriate safety,
    security and environmental findings before issuing the license.
        Section 204 of H.R. 45 establishes a two-phased licensing process
    for an interim storage facility. In the first phase, the DOE is
    required to submit an application for a twenty-year license for a
    facility with a capacity of not more than 10,000 metric tons of uranium
    (MTU) within 12 months of enactment of the Act. The draft legislation
    provides that the Commission may accept or reject this application
    within 36 months. In the second phase, the DOE will submit an
    application for a license with an initial term of 100 years, which
    would be renewable for additional terms, and have a capacity of 40,000
    MTU. The DOE would be allowed to commence construction as soon as it
    submits its first application; however, the NRC may suspend
    construction if it determines that there is unreasonable risk to the
    public health and safety.
        If the initial license were granted, an effective way to implement
    the second phase would be to amend the original license to accommodate
    an increase in capacity. I hasten to add that the NRC regulations
    currently allow site-specific interim storage license terms for 20
    years, which may be renewed for another 20 years. The NRC regulations
    would need to be revised to permit a 100-year license. The NRC staff
    has begun only recently to evaluate the technical considerations
    associated with licensing of dry cask storage systems and facilities
    for a period of 20 to 100 years. We have not identified any safety or
    environmental issues that would preclude issuance of a license for 100
    years. However, given the information available at this time, we have
    not yet determined that 100 years should be established as the license
    term for an above-ground, centralized interim storage facility.
    Whatever the specified term for second phase, from an NRC perspective,
    an effective way to implement the second phase would be to amend the
    original license to accommodate an increase in capacity.
        As you may know, the NRC currently is reviewing the DOE May 1997
    topical report for a non-site-specific centralized interim storage
    facility. The NRC staff expects to complete its review by October 1999.
    The NRC Assessment Report will provide an early indication of the
    acceptability and feasibility of the DOE approach to centralized
    interim storage, which should be useful to the DOE prior to its
    submission of a license application.
        H.R. 45 also recognizes the importance of the integrated
    transportation of spent fuel and high-level waste in the current
    regulatory system. The NRC supports the requirement that NRC-certified
    packages be used for these activities. To this end, we currently are
    reviewing six commercial designs for dual-purpose storage/
    transportation cask systems. By December 2000, we anticipate that all
    of the storage reviews and two of the transportation reviews should be
    completed.
        We have identified three specific changes to the proposed
    legislation that should be considered. First, Section 202 would require
    that the Secretary of Energy use routes that minimize the
    transportation of spent fuel and high-level radioactive waste through
    populated areas to the maximum practicable extent, and consistent with
    Federal requirements governing transportation of hazardous materials.
    This provision is not consistent with the route selection requirements
    for spent fuel shipments not subject to this Act. The U.S. Department
    of Transportation (DOT) currently has established highway routing rules
    that apply to spent fuel shipments, and they currently do not require
    avoidance of populated areas. The routing rules were developed by the
    DOT after extensive public involvement and have proven successful. In
    fact, the current DOT rules require the use of the interstate system,
    an implication that spent fuel shipments may transit populated areas.
    Further, the avoidance of such routes might increase shipment distance,
    time, and risk. Therefore, it is not clear that this provision enhances
    public health and safety.
        Section 203 states that ``acceptance by the Secretary of any spent
    nuclear fuel or high-level radioactive waste shall constitute a
    transfer of title to the Secretary.'' If the transfer were to take
    place at the utilities prior to shipment, the material would become
    DOE-titled material, not NRC-licensed material, at the time of
    shipment. Under current statute, shipment by the DOE of DOE-titled
    material is not currently subject to the NRC transportation safety or
    physical security requirements. Consequently, unless it is explicitly
    spelled out in H.R. 45, the NRC would have no oversight role of such
    shipments, including inspection of the shipments for radiological
    safety, or review and approval of shipment physical security plans.
    Although the shipments would be subject to the DOT Hazardous Material
    Regulations, many stakeholders expect that such shipments would be
    subject to regulation by the NRC. For the NRC to assume this role, H.R.
    45 would need to be modified to require NRC oversight of the shipments.
        With regard to transportation, we agree with the incorporation of
    emergency response training requirements in H.R. 45. We believe this
    mechanism would provide for a more coordinated review and would enhance
    consensus building. We would look forward to consulting with the DOT
    and others on the scope and elements for required training.
        The Commission strongly supports including in H.R. 45 permanent,
    deep geologic disposal of spent fuel and high-level radioactive waste
    as an essential element of the integrated system, described in H.R. 45.
    The Commission continues to believe that deep underground disposal is a
    sound and technically feasible solution to the problem of final
    disposition of spent nuclear fuel and other high-level radioactive
    wastes. Because the Waste Confidence decision of the Commission is
    predicated on the eventual availability of disposal in a mined geologic
    repository, we strongly support the inclusion of Section 204(g). Such a
    provision would permit the Commission to base its waste confidence
    determinations not only on the DOE obligation to construct and operate
    an interim storage facility, but also on its obligation to develop and
    implement the integrated spent fuel management system, including
    permanent, deep geologic disposal.
        With regard to licensing schedules in H.R. 45, the Commission
    supports the provision of 36 months for the NRC to review and complete
    licensing action on an application for an interim storage facility. The
    Commission also supports the approach taken in section 205(a)(1) to
    revoke the DOE repository siting guidelines to allow the DOE to focus
    on developing a high-quality repository license application.
        The Commission also supports an effective and efficient public
    hearing process. The Commission currently is studying the NRC hearing
    process, including the process that would be used for repository
    licensing. If, on the basis of this study, the Commission concludes
    that changes to the hearing process are warranted, we will propose them
    for adoption in a separate notice and comment rulemaking. In the Part
    63 rulemaking, the Commission is not seeking comment on potential
    changes to the hearing process. However, in the interest of openness,
    the Commission wishes to say that, at present, we are considering
    improvements to our hearing process to increase its efficiency and
    effectiveness.
        We believe that the timetables established for licensing of both
    the interim storage facility and the repository will be adequate,
    provided:

    (1) That the license applications and supporting documentation are
            submitted in a timely fashion and are of sufficient quality,
            and
    (2) That sufficient resources are provided for the NRC programs to
            accommodate concurrent pre-licensing and licensing reviews for
            the two facilities. In order to meet the schedules and
            milestones described in H.R. 45, the legislation would need to
            be enacted by June 1999.
        With respect to the proposed performance standard for the
    repository in H.R. 45, the Commission considers 10,000 years to be a
    sufficient length of time to assess the isolation capability of the
    system, including contributions from both engineered and natural
    barriers. The Commission believes that the standard in H.R. 45 of an
    annual effective dose of 100 mrem (1 mSv) to the average member of the
    general population in the vicinity of Yucca Mountain is consistent with
    the protection of public health and safety. The Commission believes
    that, within the context of implementing the 100 mrem annual dose limit
    specified in H.R. 45, the NRC has the flexibility to implement the
    internationally accepted ``average member of the critical group''
    approach, using a reference biosphere, as recommended by the National
    Academy of Sciences, for application to the Yucca Mountain repository.
    To provide reasonable assurance that the 100 mrem annual limit will be
    met, the Commission anticipates that the expected value for dose to the
    average member of the critical group would be restricted to 25 mrem per
    year (as specified in our proposed 10 CFR Part 63). We understand that
    H.R. 45 intends to give the Commission the flexibility to adopt this
    approach.
        Further, we support provisions in H.R. 45 on the scope of the
    National Environmental Policy Act of 1969 (NEPA) responsibilities of
    the NRC for disposal that, consistent with existing law, direct the NRC
    to adopt the DOE EIS, to the extent practicable, in the repository
    licensing proceeding. The Commission also supports the provisions of
    the bill on specifying the scope of the NRC EIS, requiring the generic
    consideration of transportation impacts, and identifying the issues
    that should not be considered by the Commission under NEPA for interim
    storage. The Commission also recommends that H.R. 45 make clear that
    the NRC will not be required to prepare an EIS under section 102(2)(C)
    of NEPA, or any environmental review under subparagraph (E) or (F) of
    the Act, in connection with the issuance of disposal regulations in
    Section 205(b). This would be comparable to existing law contained in
    section 121(c) of the Nuclear Waste Policy Act of 1982.
                                   conclusion
        The Commission agrees that H.R. 45 outlines an appropriate program
    for the permanent disposition of high-level radioactive waste, by
    providing an integrated spent fuel management system, on-site storage,
    centralized off-site storage, and deep geologic disposal, with a
    transportation system to link them. However, the Commission is meeting
    its obligations under existing law to prepare for licensing a geologic
    repository. The Commission believes that its proposed Part 63
    regulation is an appropriate approach to ensure that the regulatory
    framework is sufficiently protective of public health and safety and
    the environment and developed in a timely manner. Whether under the
    existing law or a revised legislative framework, the U.S. high-level
    waste program needs both statutory and institutional stability in order
    to proceed in an orderly, efficient, timely, and effective fashion. The
    Commission believes that, when coupled with sufficient resources to
    maintain progress in all phases, H.R. 45 can supply this necessary
    stability. We appreciate the opportunity to provide our views.

        Mr. Barton. Thank you, Madam Chairwoman.
        We would like to now recognize Mr. Lake Barrett, who is the
    Acting Director of the Office of Civilian and Radioactive
    Waste, and he is representing the Department of Energy today.
        Mr. Barrett, you are recognized for 5 minutes.

                      STATEMENT OF LAKE H. BARRETT

        Mr. Barrett. Thank you very much, Mr. Chairman and members
    of the subcommittee. I am pleased to appear before you today to
    review the technical progress in the Department's civilian
    radioactive waste management program and to address the interim
    storage legislation, H.R. 45, introduced by Representatives
    Upton and Towns. I would like to request that my testimony be
    included in the record.
        Mr. Barton. Yes, without objection so ordered.
        Mr. Barrett. The administration continues to believe that
    the Federal Government's long-standing commitment to permanent
    geologic disposal should remain the basic goal of its high-
    level radioactive waste management policy. The repository
    effort is essential not only for the commercial spent fuel
    disposal, but also to facilitate the cleanup of the nuclear
    weapons complex, further our international nonproliferation
    goals, and to support our nuclear Navy's national defense
    mission.
        The Department is committed to fulfill its responsibilities
    for the permanent disposal of the Nation's spent fuel and the
    by-products of the Department's post-cold war cleanup efforts
    in a manner that provides reasonable assurance that the public
    health and safety and the environment will be adequately
    protected.
        Our policy of permanent geologic disposal of this Nation's
    waste is also the technical foundation for our international
    position on nuclear nonproliferation, our commitment to dispose
    of U.S. fuel being returned from other countries, and our
    advocacy for eliminating international trade in nuclear weapons
    materials. The Department has made substantial progress during
    the last 6 years in fulfilling these responsibilities.
        The new interim storage legislation is essentially the same
    as H.R. 1270 previously passed by the House, which the
    administration made clear the President would have vetoed. The
    Secretary opposes H.R. 45 and would recommend to the President
    that he veto the legislation if Congress passes it in its
    current form.
        I will address the legislation later in my testimony, but I
    first would like to provide a status report on the repository
    program.
        In December 1998, Secretary Richardson submitted the
    Viability Assessment of a Repository at Yucca Mountain to the
    Congress, this committee, and to the President. The viability
    assessment revealed that no show-stoppers have been identified
    to date at Yucca Mountain and that the scientific and technical
    work should proceed at the site. It also identified issues that
    will need to be addressed before a decision can be made on
    whether or not Yucca Mountain should be recommended as a site
    for a national repository. These issues include key natural
    processes in Yucca Mountain, such as water movement, that would
    affect the long-term performance of a repository and the waste
    package designs.
        We are preparing comprehensive technical documentation
    needed to complete the site characterization of Yucca Mountain
    to support the Secretary's decision whether to recommend the
    site to the President in 2001. The most challenging aspect of
    this effort is that we must provide scientific reasonable
    assurance that the repository at Yucca Mountain will adequately
    protect the public health and safety and the environment for
    thousands of years into the future.
        Our studies have found that a repository at Yucca Mountain
    would need to exhibit four key attributes to protect public
    health and the environment for thousands of years, and the four
    attributes are limited water contact with waste packages, long
    waste package lifetime, low release of radionuclides from
    breached waste packages and the reduction in the concentration
    of radionuclides as they are transported from breached waste
    packages.
        A reference design was developed for the viability
    assessment to provide a consistent basis for making and
    comparing our evaluations. Our design process has and will
    continue to evolve and consider potential advantages of
    alternate design features, concepts and options. For example,
    as we move forward in the licensing process, we are including
    additional factors into the design selection process.
        Now I would like to address waste acceptance litigation
    issues. As you know, the Department is in litigation over our
    inability to meet our contractual obligation to accept spent
    fuel from nuclear utility companies by January 1998. The Court
    of Appeals for the District of Columbia Circuit found that the
    Department has an obligation to commence spent fuel disposal by
    January 31, 1998. The court denied the utilities' and States'
    request for a move-fuel order, finding that the standard
    disposal contract provides a potentially adequate remedy. The
    court stated the Department may not rely on the unavoidable
    delays clause to excuse its delay in performance and suggested
    the avoidable delay clause of the standard contract as a
    potentially adequate remedy. This clause provides for equitable
    adjustment of schedules and contract charges to reflect any
    additional estimated actual cost incurred by the contract
    holder by our delay.
        Also to date, 10 utilities have filed claims for monetary
    damages in the U.S. Court of Federal Claims. In the first three
    cases decided by the court, the Department was found to have
    breached its contract with three utilities, each with only one
    shutdown reactor, and the Department is now engaged in the
    discovery process to determine the amount of damages the
    government must pay to these utilities. Other cases mostly
    involving utilities with operating reactors are paying ongoing
    fees to the Department and are currently pending before the
    court.
        Now I would like to turn to H.R. 45. The enactment of H.R.
    45 could force the focus of our waste management policy from
    geologic disposal to a short-term solution by requiring the
    Department to develop and commence operation of an interim
    storage facility at the Nevada test site. The bill requires the
    Department to begin accepting waste no later than June 30,
    2003, and provides a defined acceptance schedule for the
    interim storage of spent fuel in Nevada.
        Also the bill would undermine our ability to open a
    repository as scheduled in 2010 by potentially shifting budget
    priorities and work effort to the interim storage facility. For
    example, it implies a delay of our proposed repository
    construction authorization license application to the Nuclear
    Regulatory Commission by over a year, with a target date of
    December 2003.
        Based on historical appropriations patterns, the proposed
    bill's funding provisions do not provide sufficient funding
    resources to support the simultaneous construction and
    operation of an interim storage facility and/or a repository
    program, for which cost estimates have been provided in the
    viability assessment and its accompanying total system life
    cycle cost report. If the Department has responsibilities to
    comply with the interim storage facility and the repository
    funding provisions and schedules, enactment of the bill could
    result in a funding gap of substantially over $1 billion.
        The program is reaching conclusion of our Yucca Mountain
    site characterization----
        Mr. Barton. We wish you to reach conclusion also fairly
    quickly here.
        Mr. Barrett. The viability assessment clarified the
    remaining work required and illuminated those technical issues
    that should be addressed prior to determining if the site is
    suitable for recommendation to the President. We are addressing
    these issues and commenced work on assembling the information
    required to support a national decision on geologic disposal at
    Yucca Mountain.
        Let us finish this important task. We are on schedule to
    complete the draft repository environmental impact statement
    this summer, a final repository impact statement in 2000, and
    Yucca Mountain suitability in 2001. With sufficient
    appropriations, and if the site is suitable, we are also on
    schedule to submit a license application to the Nuclear
    Regulatory Commission in 2002 and emplacement of waste in a
    repository in 2010 if the site is licensed.
        We believe H.R. 45 could undermine this progress toward
    permanent geologic disposal and could weaken the credibility of
    the regulatory and institutional activities required to ensure
    adequate protection of the public health, safety, and the
    environment, thus jeopardizing the Nation's ability to have any
    solution to our nuclear waste challenge. For these reasons, the
    administration opposes H.R. 45.
        I would be happy to address questions the committee would
    have.
        [The prepared statement of Lake H. Barrett follows:]
       Prepared Statement of Lake H. Barrett, Acting Director, Office of
          Civilian Radioactive Waste Management, Department of Energy
                                  introduction
        Mr. Chairman and members of the Subcommittee, I am pleased to
    appear before you today to review technical progress in the
    Department's civilian radioactive waste management program and address
    the interim storage legislation, H.R. 45, introduced by Representative
    Upton.
        The Administration is committed to resolving the complex and
    important issue of nuclear waste disposal in a manner consistent with
    sound science and protection of the public health and safety, and the
    environment. The Administration continues to believe that the Federal
    government's longstanding commitment to permanent, geologic disposal
    should remain the basic goal of its high-level radioactive waste
    management policy.
        The repository effort is essential not only for commercial spent
    fuel disposal but also to facilitate the cleanup of the nuclear weapons
    complex, further our nuclear nonproliferation goals, and support our
    nuclear Navy's national defense mission. The Department is committed to
    fulfill its responsibilities for the permanent disposal of the Nation's
    spent fuel and the by-products of the Department's post-Cold War
    cleanup efforts in a manner that provides reasonable assurance that the
    public and the environment will be adequately protected. Our policy of
    permanent geologic disposal of this Nation's waste is also the
    technical foundation of our international position on nuclear
    nonproliferation, our commitment to dispose of U.S. fuel being returned
    from other countries, and our advocacy of limiting the international
    trade in weapons materials. The Department has made substantial
    progress during the last six years in fulfilling these
    responsibilities.
        The pending legislation, H.R. 45, is very similar to legislation
    considered in the last session of Congress, which the President stated
    he would veto. I will address that legislation later in my testimony,
    but would first like to provide a status report on the repository
    program.
                  status report on the yucca mountain program
        In December 1998, Secretary Richardson submitted the Viability
    Assessment of a Repository at Yucca Mountain to the Congress and the
    President.
        The Viability Assessment provides policy makers such as this
    Subcommittee a technical status report on work carried out to date at
    Yucca Mountain. The Viability Assessment compiled a comprehensive
    description of the current design and operational concept for a
    repository based on data and work over the last decade. It assessed the
    potential performance of a repository concept in the Yucca Mountain
    geologic setting and contained a cost estimate and a plan for
    completing the license application.
        The Viability Assessment revealed that no ``show stoppers'' have
    been identified to date at Yucca Mountain and the Secretary has
    concluded that scientific and technical work should proceed at the
    site. It also identified issues that will need to be addressed before a
    decision can be made on whether or not Yucca Mountain should be
    recommended as a site for a repository. These issues include the key
    natural processes in Yucca Mountain, such as water movement, that would
    affect the long-term performance of the repository and waste package
    designs.
        We recognize that our assumptions and analyses have yet to be
    challenged in a rigorous licensing proceeding before the Nuclear
    Regulatory Commission, and that additional work will need to be done in
    order to assure success in order to meet the rigorous requirement of
    such a proceeding.
        We are preparing the comprehensive technical documentation needed
    to complete the site characterization of Yucca Mountain and to support
    the Secretary's decision whether to recommend the site to the President
    in 2001.
        The most challenging aspect of this effort is that we must provide
    scientific reasonable assurance that a repository at Yucca Mountain
    will adequately protect public health and safety and the environment
    for thousands of years after the repository is closed.
        This will be accomplished through a scientific, probabilistic
    performance assessment that evaluates how a repository system is likely
    to work over very long time periods. From the results of scientific
    studies, analysts build detailed mathematical models of the features,
    events, and processes that could affect the performance of the
    repository design. They then incorporate the results into an overall
    model to assess how the natural environment and engineered repository
    system are likely to work together over the long period required to
    contain and minimize the release of wastes into the environment.
        Our studies have found that a repository at Yucca Mountain would
    need to exhibit four key attributes to protect public health and the
    environment for thousands of years. The four attributes are limited
    water contact with waste packages, long waste package lifetime, low
    rate of release of radionuclides from breached waste packages, and
    reduction in the concentration of radionuclides as they are transported
    from breached waste packages.
        A reference design was developed for the viability assessment to
    provide a consistent basis for making and comparing our evaluations.
    Our design process has, and will continue, to evolve and consider the
    potential advantages of alternative design features, concepts, and
    options. For example, as we move towards the Secretary's site
    recommendation, we are including additional factors in the design
    selection process. First, we want to determine whether there are
    fundamentally different repository design concepts that could meet
    performance standards more effectively and efficiently than the
    reference design. Second, we will evaluate whether there are design
    features that could be added or incorporated into either the reference
    design or any alternative design with significant benefit. Lastly, we
    will consider whether there are alternative concepts or features that,
    in addition to meeting performance standards, could provide advantages
    with regard to operational, budgetary and regulatory issues.
                          waste acceptance litigation
        As you know, the Department is in litigation over our inability to
    meet our contractual obligation to accept spent fuel from the nuclear
    utility companies by January 31, 1998. The Court of Appeals for the
    District of Columbia Circuit found that the Department has an
    obligation to commence spent fuel disposal by January 31, 1998. The
    Court denied the utilities' and States' request for a move-fuel order,
    finding that the Standard Disposal Contract provides a potentially
    adequate remedy. The Court stated that the Department may not rely on
    the ``unavoidable delays'' clause to excuse its delay in performance
    and suggested the ``avoidable delays'' clause of the Standard Contract
    as the potentially adequate remedy. This clause provides for an
    equitable adjustment of schedules and contract charges to reflect any
    estimated additional costs incurred by the contract holder.
        Pursuant to the ruling of the Court of Appeals for the District of
    Columbia Circuit, the Department will process claims presented to it
    under the standard disposal contract. Although we have held settlement
    discussions with several utilities, only one utility has proposed a
    bilateral modification and request for equitable adjustment of the
    contract, and no formal claims have been filed.
        To date, ten utilities have filed claims for monetary damages in
    the U.S. Court of Federal Claims. In the first three cases decided by
    the Court, the Department was found to have breached its contracts with
    three utilities, each with only one shutdown reactor, and the
    Department is now engaged in discovery to determine the amount of
    damages the Government must pay these utilities. Other cases, most
    involving utilities with operating reactors paying ongoing fees to the
    Department, are currently pending.
                the administration's position regarding h.r. 45
        The enactment of H.R. 45 could force the focus of our waste
    management policy from geologic disposal to a short term solution by
    requiring the Department to develop and commence operation of an
    interim storage facility at the Nevada Test Site. The bill requires the
    Department to begin accepting waste no later than June 30, 2003, and
    provides a defined acceptance schedule for the interim storage of spent
    fuel in Nevada.
        The bill would undermine our ability to open the repository as
    scheduled in 2010 by shifting budget priorities and work effort to an
    interim storage facility. For example, it implies a delay of our
    proposed repository construction authorization license application by
    over a year, with a target date of December 2003.
        Based on historical appropriations patterns, the proposed bill's
    funding provisions do not provide sufficient funding resources to
    support the simultaneous construction and operation of an interim
    storage facility and the repository program, for which cost estimates
    have been provided in the Viability Assessment and the recently issued
    Total System Life Cycle Cost report. If the Department has
    responsibilities to comply with the interim storage facility and
    repository funding provisions and schedules, enactment of the bill
    could result in a funding gap of substantially over one billion
    dollars.
        The Department also believes that a waste acceptance deadline of
    June 2003 is very optimistic, given the licensing and transportation
    activities that would have to be completed prior to that date.
        The new interim storage legislation is essentially the same as H.R.
    1270, previously passed by the House, which the Administration made
    clear the President would have vetoed. The Secretary opposes H.R. 45
    and would recommend to the President that he veto the legislation if
    Congress passes it in its current form.
        Specifically, the Administration opposes this legislation because
    it would jeopardize the existing geologic disposal policy by forcing
    resources to be redirected to interim storage development,rather than
    completion by 2001 of the site characterization work needed to make a
    decision on the suitability of the Yucca Mountain site. The Federal
    government's longstanding commitment to permanent geologic disposal
    should remain the basic goal of its high level radioactive waste
    management policy. Permanent geologic disposal is also the approach
    preferred by the international community for nuclear waste.
        In addition, it would authorize the Secretary to immediately begin
    site preparation for the construction of a centralized interim storage
    facility within Area 25 of the Nevada Test Site regardless of whether
    Yucca Mountain is found to be suitable for a permanent repository. By
    doing so, H.R. 45 would undermine public confidence that a repository
    evaluation will be objective and technically sound, and jeopardize the
    credibility of any future decision on the suitability of the Yucca
    Mountain site.
                               concluding remarks
        The Program is reaching the conclusion of our site characterization
    effort. Let us finish. The Viability Assessment clarified the remaining
    work required and illuminated those technical issues that should be
    addressed prior to determining if the site is suitable for
    recommendation to the President. We are addressing these issues and
    have commenced work on assembling the information required to support
    national decisions on geologic disposal at Yucca Mountain.
        We are on schedule to complete a draft repository environmental
    impact statement in July 1999; a final repository environmental impact
    statement in 2000; and the Yucca Mountain site suitability in 2001.
    With sufficient appropriations, and if the site is suitable, we are
    also on schedule to submit the license application for repository
    construction to the Nuclear Regulatory Commission in 2002 and begin
    emplacement of waste in the repository in 2010, if the site is
    licensed.
        We believe that H.R. 45 could undermine this progress toward
    permanent geologic disposal, and could weaken the credibility of the
    regulatory and institutional activities required to ensure adequate
    protection of health, safety, and the environment--jeopardizing the
    Nation's ability to have any solution to our nuclear waste challenge.
    For these reasons, the Administration opposes H.R. 45.
        I would be happy to address any questions that you may have.

        Mr. Barton. Thank you, Mr. Barrett.
        We now recognize Dr. Jared Cohon, who is the Chairman of
    the Nuclear Waste Technical Review Board, for 5 minutes, and of
    course your complete statement is in the record in its
    entirety. Dr. Cohon.

                      STATEMENT OF JARED L. COHON

        Mr. Cohon. Thank you, Mr. Chairman. Good morning to you and
    to the other members of the subcommittee.
        As you heard, my name is Jared L. Cohon. I am Chairman of
    the Nuclear Waste Technical Review Board, which was created by
    Congress in the Nuclear Waste Policy Act amendments in 1987.
        Eleven members of the Board are selected on the basis of
    their expertise and represent a range of disciplines related to
    the technical and scientific evaluation of a site for a
    permanent repository at Yucca Mountain, Nevada. In accordance
    with the 1987 act, the Board members are appointed by the
    President on the recommendation of the National Academy of
    Sciences. All of us have full-time jobs outside of the Board.
    In my case, I am president of Carnegie Mellon University in
    Pittsburgh.
        The Board, Mr. Chairman takes very seriously its role as
    the main source of ongoing technical and scientific review of
    the DOE civilian radioactive waste management program.
        I have been asked to comment today on the viability
    assessment and on H.R. 45. I will make some brief summarizing
    remarks, and as you already indicated, Mr. Chairman, I
    appreciate the fact that my remarks in their entirety will be
    submitted into the record.
        With respect to H.R. 45, let me emphasize that most of the
    issues raised in the bill are policy matters that are outside
    the technical and scientific purview of the Board. I will
    therefore not comment on the specific provisions of H.R. 45
    except to urge that if phased development of an interim storage
    facility is authorized, that sufficient sources be allocated so
    that the DOE scientific testing to support decisions about the
    suitability and possible licensing of a permanent repository at
    the Yucca Mountain site can continue.
        The rest of my remarks will be with regard to the viability
    assessment, which, as you know, and you just heard again, was
    recently completed and issued by the DOE. The VA for short is a
    significant accomplishment that enables the DOE to identify and
    set priorities among key areas of research that could improve
    the technical basis for making decisions about site
    suitability, about a site recommendation, and for licensing.
        The Board concurs with the DOE that the VA was not meant to
    be and should not be viewed as a decision about the suitability
    of the Yucca Mountain site. The Board believes that in general
    the studies summarized in the viability assessment were carried
    out in a manner that produced good scientific information. It
    is very hard to judge, however, at this point how realistic the
    bottom-line estimates of a repository performance may be in the
    viability assessment.
        Those specific points, Mr. Chairman, for the Board's focus
    is the use of expert judgment which we commend DOE on using
    extensively in the viability assessment. We would just like to
    point out, as the DOE knows, that expert judgment should not be
    used as a substitute for data that can be obtained directly
    from site, laboratory and other investigations.
        The Board is pleased to note that the research priorities
    presented in the viability assessment are consistent with those
    that the Board identified in its report published in November
    1998. One important line of work is to evaluate alternative and
    potentially more robust repository and waste package designs.
    It is likely that improving these designs could increase
    confidence in predictions about the performance of a
    repository.
        Other key areas of research include work to obtain a better
    understanding and estimation of seepage of water into
    repository tunnels and potential transport of radionuclides
    through the saturated zone under the repository. The Board
    notes that DOE has undertaken work in all of these areas, and
    we look forward to the results of these scientific studies and
    engineering analyses.
        In conclusion, Mr. Chairman, the Board believes that the
    Yucca Mountain site continues to merit study as the candidate
    site for a permanent high-level radioactive waste repository,
    and that work should proceed to support a decision by the
    Secretary on whether this site is suitable. However,
    significant uncertainties remain about the performance of both
    the natural and engineered barriers in a repository system.
    Results of scientific tests and engineering analyses already
    under way could help address the uncertainties about the
    performance of the repository system.
        Thank you very much, Mr. Chairman.
        [The prepared statement of Jared L. Cohon follows:]
      Prepared Statement of Jared L. Cohon, Chairman, U.S. Nuclear Waste
                             Technical Review Board
        Mr. Chairman, and members of the Subcommittee, good afternoon. My
    name is Jared L. Cohon. My full-time job is President of Carnegie
    Mellon University. I am here today in my capacity as Chairman of the
    Nuclear Waste Technical Review Board. It is my pleasure to represent
    the other members of the Board at this hearing.
        As you know, Mr. Chairman, Congress created the Board in the 1987
    amendments to the Nuclear Waste Policy Act to review the technical and
    scientific validity of activities undertaken by the Secretary of
    Energy, including the characterization of the Yucca Mountain site and
    the packaging and transportation of spent nuclear fuel and high-level
    radioactive waste. The Board takes very seriously its role as the main
    source of ongoing technical and scientific review of the Department of
    Energy's (DOE) civilian radioactive waste management program.
        The Board has been asked to comment today on the DOE's recently
    issued viability assessment (VA) of the Yucca Mountain site and on H.R.
    45, legislation amending the Nuclear Waste Policy Act of 1982. I will
    make some very brief remarks, and I ask that the full text of my
    statement be entered in the hearing record.
    Comments on H.R. 45
        Mr. Chairman, many of the issues raised in H.R. 45 are policy
    matters that are outside the technical and scientific purview of the
    Board. I will therefore not comment on the specific provisions of H.R.
    45, except to urge that if phased development of an interim storage
    facility is authorized, sufficient resources are allocated so that
    scientific testing to support decisions about the suitability and
    possible licensing of the Yucca Mountain site can continue. I will be
    pleased to respond at the end of my statement to specific technical
    questions about the legislation from Subcommittee members.
        During the last year, the Board has devoted the majority of its
    efforts to (1) identifying the key areas of research whose results
    would improve the technical basis for making decisions about site
    recommendation and licensing, if the site is determined to be suitable,
    and (2) evaluating the technical and scientific work that supports the
    viability assessment of the Yucca Mountain site. I will now briefly
    discuss some of the Board's conclusions and comments related to these
    activities.
    Some Conclusions from the Board's November 1998 Report
        In November 1998, the Board issued a report outlining its views
    about future research needed for addressing uncertainties about the
    performance of the repository system, including both the engineered and
    the natural barriers. The Board concluded in the report that although
    there are economic and technical limits to reducing uncertainties about
    the performance of the proposed repository system, the Board believes
    that some key uncertainties could be reduced further over the next few
    years through a focused research effort. One important line of work is
    to evaluate alternative and potentially more robust repository and
    waste-package designs. It is likely that improving these designs could
    increase confidence in predictions about the performance of the
    repository. Other key areas of research include work to obtain a better
    understanding and estimation of seepage of water into repository
    tunnels and transport of radionuclides through the saturated zone under
    the repository. The Board notes that the DOE has undertaken work in all
    these areas, and we look forward to the results of these scientific
    studies and engineering analyses.
        The Board's conclusions from its November 1998 report served as a
    technical basis for its review of the DOE's viability assessment.
    Preliminary Comments on the VA
        The Board's November report, along with the access to information
    provided by the DOE throughout the development of the viability
    assessment, make it possible for the Board to provide these preliminary
    comments on this immense and detailed document. The Board's evaluation
    of the VA will be completed in the next month or two.
        I will begin with three general comments.

     First, the DOE deserves congratulations for completing the VA,
            which is the most significant landmark thus far in the
            characterization and evaluation of the Yucca Mountain site. The
            viability assessment is a solid accomplishment that has enabled
            the DOE to integrate large amounts of data and analyses, to
            establish a preliminary repository design, and to set
            priorities for work that needs to be completed before making
            decisions about site recommendation and licensing, if the site
            proves suitable. However, the Board concurs with the DOE that
            the VA is simply a snapshot of the current state of knowledge
            about the site; it was not intended to be and is not a
            suitability determination.
     Second, the Board's preliminary comments on the VA reflect its
            views that (1) all uncertainty about the performance of a
            repository at any candidate site cannot, and need not, be
            eliminated and (2) a ``defense-in-depth'' repository design
            that includes both engineered and natural barriers is
            appropriate in light of uncertainties about the projected
            performance of any repository system over many thousands of
            years.
     Third, because the Board did not have the expertise and
            resources needed to review the cost estimates included in the
            VA, it has no comment on their accuracy.
        Now, more specifically:

     The Board believes that, in general, the scientific studies
            summarized in the VA were carried out in a manner that produced
            good scientific information. The reports included in the VA are
            well written and clearly presented.
     It is very hard to judge at this point how realistic the
            ``bottom-line'' estimates of repository performance may be in
            the VA. In fact, DOE representatives have stated that the VA's
            total system performance assessment (TSPA-VA) cannot be used to
            assess compliance with the regulatory standard. Because of a
            general lack of data supporting some critical assumptions in
            the mathematical models, some of the assumptions in the TSPA-VA
            are likely to be overly conservative, while others may be
            nonconservative.
     The VA relies quite heavily in some cases on the formal
            elicitation of expert judgment. This was necessary and
            extremely useful, given the lack of field and laboratory data
            in certain areas and the equivocal nature of some of the data
            in other areas. As the experts, themselves, pointed out,
            however, expert judgment should not be used as a substitute for
            data that can be obtained directly from site, laboratory, and
            other investigations.
     The VA helps illuminate the state of knowledge about the three
            major barriers that will be necessary to achieve a defense-in-
            depth approach to repository performance: the unsaturated zone,
            the engineered barrier system, and the saturated zone. However,
            it is clear from the information in the VA that there are
            significant and substantial uncertainties about the performance
            of each of these barriers and about how they would work
            together to provide defense-in-depth. As pointed out by the
            DOE, the TSPA-VA explicitly acknowledges the need for defense-
            in-depth analysis but does not provide such an analysis.
    Closing
        In conclusion, Mr. Chairman, the Board believes that the Yucca
    Mountain site continues to merit study as the candidate site for a
    permanent high-level radioactive waste repository and that work should
    proceed to support a decision by the Secretary of Energy on whether the
    site is suitable. However, significant uncertainties remain about the
    performance of both the natural and the engineered barriers in a
    repository system.
        The VA is a significant accomplishment that enables the DOE to
    identify and set priorities among key areas of research that could
    improve the technical basis for making decisions about site
    suitability, site recommendation, and licensing. However, the Board
    concurs with the DOE that the VA was not meant to be, and should not
    be, viewed as a decision about the suitability of the Yucca Mountain
    site.
        The Board is pleased to note that the research priorities presented
    in the VA are consistent with those identified in the Board's November
    1998 report and that much of this work is already under way. Results of
    these scientific tests and engineering analyses could help address the
    uncertainties about the performance of the repository system.
        Thank you for the opportunity to provide these preliminary comments
    about the VA on behalf of the Board. I will be pleased to respond to
    questions.

        Mr. Barton. Thank you, Doctor.
        We now recognize the Honorable Robert Perciasepe, who is
    the Assistant Administrator for Air and Aviation at the
    Environmental Protection Agency.
        Your statement is in its entirety in the record, and we
    would ask you to summarize in 5 minutes.

                     STATEMENT OF ROBERT PERCIASEPE

        Mr. Perciasepe. Thank you, Mr. Chairman and members of the
    committee, for the invitation today to present EPA's views on
    H.R. 45, Nuclear Waste Policy Act of 1999. EPA--I will try to
    summarize here. EPA has already licensed the waste isolation
    plant, or so-called WIPP plant, as a geologic repository for
    highly radioactive waste, and that licensing was done in an
    open regulatory process, a process that I think would be a good
    model for us to follow for Yucca Mountain.
        We have been working pretty hard at EPA, and I am sure you
    have heard this before, to put the standards together as
    directed by Congress for the Yucca Mountain site. This is a
    tremendously complex technical issue covering a number of
    scientific and technical disciplines, as we have already heard
    from some of the other testifiers this morning. But I think it
    is important to note that these standards when they are
    promulgated, they must be credible to protect the public health
    and the environment while at the same time being feasible to
    implement, and I think these are two important policies that we
    are trying to follow.
        We have been working with the Department of Energy, the
    Nuclear Regulatory Commission, other members of the--in the
    offices in the government, like the Office of Science and
    Technology Policy, to ensure that these standards that we are
    working on will meet both of these criteria, and we have been
    ongoing with this work for quite sometime. We are in the final
    stages of doing this. I plan to personally visit this site this
    month, and we hope to very shortly conclude our work, and I
    think the Chairwoman mentioned that as well. We hope to then
    finalize those standards, and within a year after we would
    promulgate the drafts and take public comment on it.
        I would like to defer detailed discussion of that since we
    are in the final stages of putting that regulation together,
    and there will be a public comment period on it, and turn my
    attention now in summary to talk about some of our concerns
    with H.R. 45. I think I can summarize them in several different
    areas.
        First, the level of health protection in the bill is
    inadequate. It inappropriately eliminates an analysis of human
    intrusion, and it overrides all other local, State, and Federal
    laws. Let me expand on these a little bit.
        The 100-millirem-per-year release standard that is embodied
    in the act has a number of concerns for us, and let me mention
    several of them. First, it is based on an average--and I will
    talk about that in a minute--average member of the population
    in the vicinity of Yucca Mountain and the actual dose level
    itself. Let me give you some comparison. A 100-millirem
    standard represents a risk of about 1 in 500 fatal cancers.
    This level of risk is seven times higher than EPA's existing
    standard for geologic disposal of spent nuclear fuel. It is
    four times higher than the Nuclear Regulatory Commission
    standard for low-level nuclear waste. It is 3 to 20 times
    higher than the international standard for high-level waste
    disposal, and is 6 to 600 times higher than the risk level that
    EPA allows for other regulated facilities. Not only is that
    standard too high, but it is based on an average of a person in
    the general vicinity.
        I am not going to get into the mathematics. I think
    somebody said earlier they are into mathematics, but as
    everybody knows, the simple concept of an average is some
    people will be exposed higher, and some people will be exposed
    lower, therefore the average is 100. I just told you 100, even
    if it was the cap, is much higher risk than any other standards
    we use almost in the whole world for facilities, and obviously
    if you do it as an average, there are going to be people either
    closer to the facility or someplace that are going to be
    exposed to even higher levels of that. Not knowing what the cap
    would be, one could run a scenario given the existing
    population in a 20-mile area that some people could be exposed
    to 40 times the 100-millirem standard, and still we could be
    meeting a 100-millirem standard for an average. That is a
    cancer risk of 2 in 25. I don't think anybody in the room will
    decide that 2 in 25 is an acceptable risk level.
        I am going to talk very briefly about the postclosure
    oversight that is envisioned in the bill. It seems to envision
    some kind of institutional control of monitoring by the
    Department of Energy for 10,000 years. That is twice the time
    of recorded human history. While I have great faith that the
    Department of Energy will go on for a while, I am not sure
    about 10,000 years.
        Human intrusion. I don't want to say too much about this.
    We think it ought to be looked at as something that could
    happen, and that the National Academy of Sciences has
    recommended this, and doing this at the WIPP site went a long
    way to help ensure the public acceptance of that site.
        Ground water is an important component that needs to be
    looked at in the standard. There is a sole source aquifer here
    that could supply water for 250,000 people.
        We don't think NEPA should be--I am really summarizing
    here--NEPA should be limited. We don't think that--the EPA
    standards should not be applied here. I think the process of
    proposing rules, holding public hearings, soliciting public
    comment by an independent Environmental Protection Agency will
    increase the level of credibility here.
        The preemption of State and local governments, I think you
    have heard about that already. We have done this in the Federal
    Government. Congress has done this from time to time. But here
    the preemption is extreme and unprecedented, and we would say
    that the people of Nevada would object, and I think we have
    heard that.
        So let me say in summary I think that the idea that we need
    to move ahead here and that some of the Members who are talking
    about and supporting this bill, I think they feel it is
    necessary because it is going to lead to development of Yucca
    Mountain as a safe place to dispose of spent nuclear fuel. I am
    concerned that this could have the exact opposite effect, that
    it effectively weakens every safeguard, dilutes by averaging,
    assumes compliance. This is not a way to build public
    confidence. It is a very difficult and important decision we
    need to make as a country.
        So I will just stop there, Mr. Chairman, but we owe it to
    the future generations to try to make the right decision based
    on the best process we can put forward. Thank you.
        [The prepared statement of Robert Perciasepe follows:]
     Prepared Statement of Robert Perciasepe, Assistant Administrator for
               Air and Radiation, Environmental Protection Agency
        Mr. Chairman and Members of the Subcommittee, good morning. I am
    Robert Perciasepe, the Assistant Administrator for Air and Radiation at
    the U.S. Environmental Protection Agency (EPA). I am pleased to be here
    today to present and discuss the EPA's views regarding H.R. 45, the
    ``Nuclear Waste Policy Act of 1999.'' Thank you for the opportunity to
    testify before the Subcommittee regarding this legislation. EPA
    appreciates the Subcommittee's interest in the important issues
    surrounding the development of environmental protection standards for
    the Yucca Mountain repository for spent nuclear fuel and high-level
    radioactive waste.
                                  introduction
        Decades-long use of electricity from nuclear power plants has left
    the United States with a significant problem: how to dispose safely of
    the tons of highly radioactive spent nuclear fuel and other wastes
    created as a result of this power production. Over the years, an
    international consensus has developed that the safest, most appropriate
    means of disposing of these highly radioactive materials is emplacement
    in a deep geologic repository. Since the 1940's, the federal government
    has assumed the ultimate responsibility for the care and disposal of
    high-level radioactive waste and spent nuclear fuel generated by either
    commercial or government and military activities.
             history of activities to develop a geologic repository
        As the Subcommittee knows, efforts to address the disposal of spent
    nuclear fuel and high-level nuclear waste have been under way for many
    years. Various government agencies all have worked diligently to site
    and develop a deep geologic repository.
        In the Nuclear Waste Policy Act of 1982 (Pub. L. No. 97-425),
    Congress took significant concrete legislative steps toward the
    development of a geologic repository for the disposal of spent nuclear
    fuel and high-level radioactive waste. The 1982 Act gave the Department
    of Energy (DOE) the responsibility for siting, building, and operating
    a geologic repository. The 1982 Act also directed EPA to set generally
    applicable environmental radiation protection standards based on our
    authority under other laws, including the Atomic Energy Act (AEA) (42
    U.S.C. Sec. Sec. 2014 et seq.). Finally, the 1982 Act required the
    Nuclear Regulatory Commission (NRC) to implement EPA's standards by
    incorporating them into its licensing requirements for spent nuclear
    fuel and high-level radioactive waste repositories. This regulatory
    scheme, though modified, has survived for nearly 20 years.
    EPA's General Standards for Disposal of Radioactive Wastes
        In 1985, EPA promulgated standards, found at 40 C.F.R. part 191,
    generally applicable to the disposal of high-level waste and spent
    nuclear fuel which is the waste disposed at Yucca Mountain and
    transuranic wastes which is the waste disposed at the Waste Isolation
    Pilot Plant (WIPP). Though Yucca Mountain and the WIPP are the only
    sites currently being considered, the EPA standards (40 CFR 191) are
    generic and are designed to apply to any future sites. In 1987, the
    U.S. Court of Appeals for the First Circuit invalidated the individual
    and ground water protection standards of the disposal standards and
    remanded the standard. (Natural Resources Defense Council v. EPA, 824
    F.2d 1258 (1st Cir. 1987)). The 40 C.F.R. 191 standard was overturned
    largely, in part, over concerns that it was not consistent with the
    Safe Drinking Water Act.
    Nuclear Waste Policy Amendments Act of 1987
        In 1987, Congress amended the 1982 Act. Among other things, the
    Nuclear Waste Policy Amendments Act of 1987 (Pub. L. No. 100-203)
    selected Yucca Mountain, Nevada, as the only potential repository site
    at which DOE was to conduct site characterization activities.
    WIPP Land Withdrawal Act
        On October 30, 1992, President Bush signed into law the Waste
    Isolation Pilot Plant Land Withdrawal Act (WIPP LWA) (Pub. L. No. 102-
    579). The WIPP LWA reinstated the provisions of 40 C.F.R. part 191,
    except for those invalidated by the First Circuit in NRDC v. EPA. It
    also required EPA to issue standards to repromulgate the individual and
    ground water protection standards that the court remanded. Finally, the
    WIPP LWA specifically exempted Yucca Mountain from the 40 C.F.R. part
    191 disposal standards, though the standards would continue to apply to
    WIPP and to any other geologic repository for high level waste, spent
    nuclear fuel, or transuranic waste. The Agency promulgated the revised
    standards on December 20, 1993 (58 Fed. Reg. 66,398). On May 18, 1998,
    EPA certified that the WIPP facility will comply with the standards.
    The Agency is now in the process of inspecting the waste generators to
    ensure that certain waste shipped to the WIPP will be suitable for
    disposal at that facility. We expect these shipments to commence later
    in the spring.
    Energy Policy Act of 1992
        The Energy Policy Act of 1992 (Pub. L. No. 102-486) contained
    several provisions relating to the development of a deep geologic
    repository for the disposal of spent nuclear fuel and high-level
    radioactive waste. Section 801 of the Energy Policy Act of 1992
    mandated that EPA promulgate ``generally applicable standards . . . for
    protection of the public from releases from radioactive materials
    stored or disposed of in the repository at the Yucca Mountain site.''
    Section 801 also directed EPA to commission the National Academy of
    Sciences (NAS) to ``conduct a study to provide . . . findings and
    recommendations on reasonable standards for protection of the public
    health and safety.'' Congress directed that EPA's standards be ``based
    on and consistent with'' the NAS's findings and recommendations.
        You asked for the Agency's position on, and concerns with, H.R. 45.
    You also asked EPA to provide the Subcommittee with information
    regarding the Agency's current activities relating to the development
    of generally applicable standards for Yucca Mountain. H.R. 45, the new
    interim storage legislation, is essentially the same as H.R. 1270
    previously passed by the House, which the Administration made clear the
    President would have vetoed. 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. EPA feels that the legislation
    is not needed. Further, the Agency has substantial concerns with a
    number of the bill's provisions. I will address these questions and
    concerns in the remainder of my testimony.
                         epa's draft proposed part 197
        EPA is in the final stages of developing a proposed rule
    establishing environmental protection standards for a repository at
    Yucca Mountain. This draft proposed rule is based on and consistent
    with the NAS's findings. Because the proposed rule is still under
    development, it is premature for me to discuss the rule's specific
    provisions in detail today.
        In an effort to develop workable standards for Yucca Mountain, EPA
    has worked closely with DOE and NRC under the auspices of the Office of
    Science and Technology Policy on numerous technical issues underlying
    the development and implementation of our draft proposed rule. EPA's
    goal is to ensure that the standards adequately protect public health
    and the environment, that the standards are implementable, and that the
    standards provide a fair test of the safety of the Yucca Mountain
    repository. I believe that this interagency cooperation has made our
    draft proposal better.
                       problematic provisions of h.r. 45
    100 millirem/year release standard
        H.R. 45 would establish a release standard intended to ``prohibit
    release of radioactive material or radioactivity from the repository
    [that will] expose an average member of the general population in the
    vicinity of the Yucca Mountain site to an annual dose in excess of 100
    millirem.'' EPA believes that this standard does not sufficiently
    protect public health and the environment. The numeric standard not
    only is too high in comparison to other environmental standards, it is
    too high in comparison to the risk allowed in other environmental
    standards, both domestic and international. In addition, by protecting
    the ``average'' person in the general vicinity of Yucca Mountain at
    that numeric level, it potentially leaves those closest to the site
    exposed to much higher risks. Finally, the bill as written appears to
    ensure that Yucca Mountain will pass the standard regardless of its
    actual performance. I will go into each of these of these problem areas
    in greater detail.
        First, the lifetime risk of a person developing a fatal cancer as a
    result of exposure to 100 millirem/year is about 2 chances in 1,000, or
    1 chance in 500. EPA typically establishes public health and safety
    standards that limit risks to members of the public to between
    approximately 1 in 10,000 and 1 in 1,000,000. EPA's existing generic
    standards for disposal of spent nuclear fuel and high-level waste set
    the limit at 15 millirem/year. The lifetime cancer risk associated with
    this dose is approximately 3 chances in 10,000. Thus, the risk from
    exposure to 100 millirem/year exceeds the levels the Agency has already
    established for the types of waste that the Yucca Mountain repository
    is proposed to contain. This is the standard that EPA applied to WIPP
    and I can think of no reason why the people in Nevada should be exposed
    to higher risks than the people of New Mexico or other states.
        Second, the NAS, in its Congressionally mandated report on its
    findings and recommendations for technical standards at Yucca Mountain,
    suggested that the starting point for standard setting is consistent
    with a standard of 2 to 20 millirem/year. The NAS noted that this range
    is consistent with other U.S. nuclear regulations, and is therefore
    appropriate as a ``reasonable starting point'' for use in this instance
    (NAS Report, at 49). The other regulations considered by NAS include
    the WIPP site's regulations (40 C.F.R. part 191); the National Emission
    Standard for Hazardous Air Pollutants (NESHAP) promulgated at 40 C.F.R.
    part 61 pursuant to the Clean Air Act (42 U.S.C. Sec. 7412);
    regulations promulgated at 40 C.F.R. part 300 under the Comprehensive
    Environmental Response, Cleanup, and Liability Act (CERCLA) (42 U.S.C.
    Sec. Sec. 9601-9675); and EPA's ground water protection standards (see
    40 C.F.R. Sec. 191.16) (NAS Report, at 49-50).
        Third, while the International Commission on Radiological
    Protection (ICRP) has suggested the 100 millirem/year level as a
    guidance, it is important to note that the 100 millirem/year level in
    H.R. 45 has a different basis than the ICRP recommendation. The ICRP
    recommends a 100 millirem/year level based on exposures from all
    sources of radiation, including future sources, except for medical and
    background sources. Therefore, this dose level is not an accepted limit
    for radiation exposure from one particular facility. Yucca Mountain is
    in a region with several other significant sources of radiation
    exposure, including the nuclear test cavities and the low-level and
    transuranic waste facilities on the Nevada Test Site and the commercial
    low-level waste disposal system in Beatty, Nevada. Thus, the Agency
    believes that H.R. 45 misuses the international level of 100 millirem/
    year by allowing just one source to contribute the entirety of a dose
    that is meant to be an upper bound of exposure from all sources.
        H.R. 45 is also inconsistent with international high level waste
    disposal standards which range from 5 to 30 millirem/year. H.R. 45
    would provide less protection to Americans than that afforded to
    citizens of other industrialized nations.
        Not only is 100 millirem/year too high, by applying the standard to
    the ``average'' person in the general vicinity, the standard
    potentially allows those people closest to the facility to receive much
    greater risks. By definition, if you average risks to a group of people
    there will be some with above average risks. The potential for some
    people to suffer exposure and endure risks that are much higher than
    average is especially great at Yucca Mountain. The best scientific
    information to date indicates that releases from the site will travel
    south of the facility with the prevailing ground water flow paths.
    People in other directions from the site will probably not be exposed
    to ground water releases. Each person included in the ``average dose''
    calculation who receives no exposure means that someone else can
    receive a much greater exposure.
        Among how many people would this averaging occur? It is impossible
    to tell, as H.R. 45 says only those people in the general vicinity but
    does not define what the general vicinity is. While some have expressed
    the concern that the term can be construed to include people currently
    living 75 miles away in the outer Las Vegas suburbs, I am willing to
    assume that it is intended to be interpreted more reasonably, for
    example, to include everyone living within 20 miles of the repository.
    (Although 20 miles is very far from the facility for normal standard
    setting purposes, it must be remembered that at this time no one lives
    within 12 miles of the facility.) Even using a 20 mile radius, over 75%
    of these ``averaged people'' live west, north and east of the site in
    directions where they may receive no exposure to ground water
    contamination from the site at all. The remaining 25% of the people are
    spread out over a distance of more than 8 miles and their doses can
    easily differ by an order of magnitude. Accordingly, the people living
    south of the site who receive the highest dose may receive as much as
    40 times the 100 millirem standard. This amount, 4 rem/year, would
    impose a fatal cancer risk of 2 in 25. I hope we could all agree that
    any standard that allows anyone to endure risks as high as 2 in 25 is
    not adequately protective.
        Instead of this averaging approach, typical radiation standards use
    either the ``critical group'' or ``Reasonably Maximally Exposed
    Individual'' approach. The NAS proposed using the ICRP's critical group
    concept as a means of providing a more accurate basis for an individual
    exposure standard, and for preventing unnecessary and excessive
    dilution of releases from the repository. One of the most important
    elements of this approach is that it limits the size of the assumed
    exposed population to prevent misleading dilution of the contamination.
    Only those people who receive roughly similar doses can be considered.
    Traditionally, in standard setting, the Agency has used a ``Reasonably
    Maximally Exposed Individual'' (RMEI) approach which closely
    approximates the critical group approach. In either approach, the
    applicable standard is more protective of the population as a whole
    because it applies to those individuals identified to have the highest
    level of risk. These approaches ensure that all people receive at least
    the protection that is promised by a given standard.
        Finally, section 205(d)(2) requires the NRC to assume that, after
    DOE closes the Yucca Mountain repository, ``the inclusion of engineered
    barriers and [DOE's] post-closure actions'' at the repository will
    suffice to: (1) prevent human activity that poses an unreasonable risk
    of breaching any of the repository's barriers, and (2) prevent any
    increase in exposure to radiation above the 100 millirem/year level
    specified in section 205(d)(1). Our legal interpretation of this second
    provision is that no matter how the repository performs in modeling to
    assess performance it simply cannot fail to pass the standards. When
    NRC reviews DOE's application for a license, the NRC must assume either
    that the canisters containing the spent fuel will not leak or that DOE
    will carefully watch the site for the next 10,000 years and somehow
    prevent any violation of the 100 millirem/year average dose level. This
    provision makes the actual performance of the repository irrelevant to
    licensing. In effect, H.R. 45 provides that even if Yucca Mountain
    releases high levels of radioactive contaminants, it should be licensed
    because DOE will always be there to fix whatever problems may arise. I
    believe that the assumption that we will be able to monitor the site
    actively for 10,000 years, twice the length of recorded human history,
    is at best flawed, and at worst, renders any serious effort to
    determine the safety of the site meaningless.
        Even if this problem is corrected, the basic premise of the section
    is faulty. H.R. 45 totally ignores the NAS recommendation that DOE
    perform an analysis of the effect of human intrusion on the
    repository's performance. Instead, H.R. 45 relies on DOE's
    institutional oversight to ensure that human intrusion does not occur.
    Even though the NAS acknowledged that accurately predicting the exact
    nature of future human intrusion is difficult, it recommended the
    inclusion of such an analysis in EPA's standards. The NAS made this
    recommendation because it believed that, despite the difficulty of
    accurately predicting future human intrusion, it is important for DOE
    to analyze the possible impacts of such intrusion on the repository's
    ability to contain the radioactive materials. Although the NAS found it
    unreasonable to assume that a system for post-closure oversight, based
    on active institutional controls, will prevent intrusions or releases
    in excess of allowable radiation release limits, H.R. 45 makes this
    very assumption. The NAS recommended use of a single, stylized scenario
    in which a drill penetrates a waste canister sometime in the future
    when some of the canisters have failed, and continues into the aquifer
    beneath the repository. Similarly, during the licensing of the WIPP,
    EPA's regulations required DOE to demonstrate the ability of the
    repository to protect future generations from the impact of intrusion
    into the repository. DOE's analysis went a long way toward assuring the
    public that the WIPP repository was safe.
    Ground water protection
        H.R. 45 contains no provision for the protection of ground water
    for the Yucca Mountain repository. As a result, H.R. 45 as drafted
    would potentially permit an exposure limit of 100 millirems through the
    ground water pathway. Ground water is one of our most precious
    resources. Once it is contaminated, ground water is extremely difficult
    and expensive to clean. The protection of the Nation's ground water is
    one of the Administration's most critical environmental objectives.
        The need for ground water protection in this instance is especially
    compelling. It appears that the most likely path for radiation to
    escape from the repository is through the ground water pathway. As the
    NAS stated in its report, ``[n]ear Yucca Mountain, there is no flowing
    surface water that might serve as a source in preference to ground
    water.'' The nearby human population relies, and presumably will
    continue to rely, on the area's ground water for drinking, irrigation,
    and domestic use. Let me assure you that the ground water in question
    is not a minor amount. If there are releases from Yucca Mountain, they
    will ultimately contaminate a sole source aquifer capable of supplying
    drinking water for over 250,000 people. This is a significant resource
    that deserves protection. Therefore, adequate protection of the ground
    water around and underneath Yucca Mountain is crucial to the
    effectiveness of any applicable standards for protection of public
    health and safety. The waste proposed for disposal in Yucca Mountain
    will remain radioactive for many thousands of years and we must think
    of the water needs and health and safety of many future generations.
    Limitations on the Applicability of NEPA to Yucca Mountain
        H.R. 45 limits the applicability of the National Environmental
    Policy Act (NEPA) (42 U.S.C. Sec. Sec. 4321-4370d) to DOE's activities
    at Yucca Mountain. Section 102 of NEPA (42 U.S.C. Sec. 4332) requires
    the preparation of an Environmental Impact Statement (EIS) for federal
    actions that significantly affect the quality of the human environment.
    One of the key features of the EIS is that the agency planning to
    undertake the major federal action in question must consider
    alternatives to the planned action. It is from a serious analysis of
    alternatives that good public policy is created. As written, H.R. 45
    precludes the incorporation of NEPA's core values in any assessment of
    the environmental impacts of either the interim storage facility or the
    repository. While there may be some justification in some minor
    limiting of NEPA analyses of issues already decided by Congress, H.R.
    45 prevents DOE from considering alternative sites, or alternative
    designs, for both an interim storage facility and a permanent
    repository, in any EIS it prepares pursuant to NEPA. A critical effect
    of these provisions is that, by limiting the alternatives that DOE may
    consider, they effectively will deny the public's right to comment on
    critical health and safety issues. Also, the provisions may lead to
    ill-informed decision-making on DOE's part because DOE will not receive
    input from the public on these various aspects of the facilities''
    development.
    Preclusion of Application of EPA Standards
        Section 205(d) specifically prohibits the EPA from
    ``promulgat[ing], by rule or otherwise, standards for the protection of
    the public from releases of radioactive materials or radioactivity from
    the repository.'' It also precludes the NRC from incorporating in its
    licensing regulations for Yucca Mountain any such EPA standards
    existing on the date of the bill's enactment.
        The Energy Policy Act mandated that EPA, through a public process,
    develop standards for protection of the public for Yucca Mountain,
    consistent with the NAS's findings and recommendations. Section 205(d)
    short-circuits ongoing efforts at the Agency to develop public health
    standards for the permanent repository through a public rulemaking
    process, as the Energy Policy Act mandated. That process of proposed
    rule, hearings, and public comment serves to assure development of the
    most appropriate standards and to strengthen public confidence in the
    result.
    Preemption of all other federal, state, and local laws
        EPA strongly objects to section 501, which contains an
    unprecedented preclusion of the application of any environmental laws
    that are inconsistent with, or duplicative of, the Atomic Energy Act
    and the Nuclear Waste Policy Act of 1999, to DOE's activities at Yucca
    Mountain. This provision makes unavailable the full panoply of
    environmental laws available to protect public health and the
    environment from potential releases from the repository. Further,
    section 501 preempts all state and local laws that are ``an obstacle''
    to accomplishing or carrying out the Nuclear Waste Policy Act of 1999
    or a regulation promulgated thereunder. Since ``obstacle'' is not
    defined, it logically could apply to any requirement which increases
    the cost of DOE's operation of the site. In other words, Yucca Mountain
    becomes the only facility in the Nation where local, state and federal
    statutes and regulations do not apply.
        It is possible to envision several serious deleterious effects this
    section may have. For example, section 501 will preclude application of
    the Safe Drinking Water Act to ground water affected by releases from
    Yucca Mountain. Protection of ground water resources is one of EPA's
    most important environmental objectives. It is extremely troublesome
    that, if section 501 as introduced becomes law, persons residing in the
    region surrounding Yucca Mountain will have less protection of their
    drinking water supply than persons living elsewhere in the country.
        Moreover, section 501 raises significant federalism concerns. It is
    not uncommon for the federal government to preempt state laws in some
    regulatory areas, especially where state and local laws may conflict
    with a national regulatory scheme established in a federal statute.
    Here, however, the preemption is extreme and unprecedented. It applies
    to one facility. It denies the State of Nevada, its affected local
    governments, and its citizens any legal avenues for remedying public
    health and safety problems that arise because of the location or
    operation of the repository at Yucca Mountain.
                                   conclusion
        In conclusion, EPA opposes H.R. 45 in its current form. EPA
    believes the legislation is not needed. I know that many of you believe
    that this bill is necessary because it will lead to the development of
    Yucca Mountain as a safe place to dispose of spent nuclear fuel in
    particular and to nuclear waste disposal in general. I fear that it
    will have exactly the opposite effect. H.R. 45, no matter how well
    intentioned, effectively weakens every safeguard of public health and
    safety. It sets weak standards, then further dilutes them by averaging
    over large numbers of unaffected people. In key areas, the bill directs
    NRC to assume compliance rather than to evaluate the performance. Other
    state or federal laws are simply overridden if they present an obstacle
    to operating the site. This is not the way to build public confidence
    in, and acceptance of, a controversial public project. I believe that
    the regulatory process can work, that the combination of EPA standards
    and NRC implementation will, using good science, demonstrate in an open
    and fair public process the true performance capabilities of Yucca
    Mountain. If the site is safe, it will pass the standards and waste
    will be emplaced, if not, then the site will be rejected. This is as it
    should be. In deciding whether or not to place the Nation's spent
    nuclear fuel in Yucca Mountain, we are making a decision that will
    affect future generations for thousands of years. We owe it to the
    future to spend time now making sure we make the right decision.
        Thank you again for the opportunity to appear today before the
    Subcommittee to present the EPA's views regarding H.R. 45, the
    ``Nuclear Waste Policy Act of 1999.'' This concludes my prepared
    statement. I would be happy to answer any questions that you may have.

        Mr. Barton. Thank you, sir.
        We now welcome the Deputy Assistant Attorney General from
    the U.S. Department of Justice, Mr. Stuart Schiffer, for 5
    minutes, and of course your written statement is in the record
    in its entirety.

                    STATEMENT OF STUART E. SCHIFFER

        Mr. Schiffer. Thank you, Mr. Chairman, members of the
    committee. I am dismayed how quickly you got to me. I saw the
    size of this panel and thought I had hours to think of
    something to say.
        We have a brief written statement which we have submitted,
    and I think I can be even more brief in summarizing because Mr.
    Barrett has already ably summarized the litigation.
        In particular I don't want to take your time to outline the
    things I believe I am precluded from discussing. I simply note
    that our involvement in the Department has been from the
    standpoint of litigation. Most of it is still pending. Over and
    above any other concerns about the pending litigation, most of
    it is at a fairly early stage, so anything I speculated about
    probably wouldn't be worth its content anyway.
        Mr. Barrett noted we had essentially two groups of cases.
    The second group effectively has two subsets. The first cases
    were filed in the Court of Appeals for the District of Columbia
    Circuit under the review provisions of the Nuclear Waste Policy
    Act. In those cases utilities sought to require the government
    to perform specifically the contract; in other words, to honor
    the terms of the contract that would have required the
    Department of Energy to begin accepting spent nuclear fuel
    beginning on January 31, 1998.
        The court of appeals declined to order specific
    performance, noting that the contract contained its own
    remedial scheme, disputes clause, providing for claims to be
    submitted to the Department of Energy in the first instance and
    then to be appealed to a Board of Contract Appeals, and that
    this disputes clause could provide a remedy that was adequate
    without the specific performance remedy.
        At the same time, the court noted, as Mr. Barrett already
    mentioned--the court ruled, I should say, that the Department
    of Energy could not invoke the unavoidable delays provision of
    the standard contract. This was something that was--review was
    sought in the Supreme Court, and the Supreme Court recently
    denied review of that ruling.
        At the same time in the second set, we have to date 10
    cases pending in the United States Court of Federal Claims
    filed by utilities, and they seek amounts at least in their
    terms ranging from $70 million anywhere up to in excess of $1
    billion. If you add up the amounts sought in the 10 cases filed
    to date, they exceed $8 billion.
        When I mentioned two subsets, we moved to dismiss a large
    number of those cases, again arguing that the contract itself
    contained the remedial scheme that utilities needed to follow
    in the first instance. As Mr. Barrett noted, in the first three
    of those, which involved utilities that were no longer
    generating nuclear electric power, the court read the contract
    to say there was no real refund provision and there was no
    ongoing payment of rates into the fund; therefore, there
    couldn't be an offset. The court found that a breach of
    contract remedy was available, and we are in the early stages
    of discovery on what the damages might prove to be in those
    cases.
        The second group of cases involve utilities that are still
    generating electricity. We at least believe the disputes clause
    is more clearly applicable. The court has not yet ruled on our
    motion there.
        To end with what I began with, things that I am unable to
    discuss at any length, the committee did ask in its invitation
    to have us testify that we address the source of any funds for
    any judgments or settlements which result from these cases.
    That is an issue that is more difficult than appears on the
    surface. It is currently being examined with recognition of the
    importance of the issue by our Office of Legal Counsel in the
    Department, which prepares formal opinions on issues such as
    this.
        In brief, just to capsulize the issue, there is an
    indefinite appropriation contained in title 31 of the United
    States Code to pay judgments and settlements. The provision is
    section 1304 of title 31. There are several qualifications on
    when that indefinite appropriation may be utilized, the most
    relevant of which is that it can be utilized only when there is
    no other appropriate source of funds. That is the issue that is
    currently being examined. As we go along, we will be pleased to
    work with this committee on this legislation and any other
    legislation.
        I know one issue that the committee is undoubtedly
    concerned about is the extent to which legislative changes that
    in turn alter existing contracts can create liability. We know
    that they can certainly create claims. It is something we would
    be pleased to work with you on. Thank you very much.
        [The prepared statement of Stuart E. Schiffer follows:]
      Prepared Statement of Stuart E. Schiffer, Deputy Assistant Attorney
                         General, Department of Justice
        Mr. Chairman, and members of the subcommittee, I am Stuart E.
    Schiffer, and I am a Deputy Assistant Attorney General of the
    Department of Justice. I am pleased to testify today regarding the
    implications of recent litigation concerning the Department of Energy's
    obligations under the Nuclear Waste Policy Act of 1982.
        Let me note at the outset that much of the litigation about which
    you have asked the Department of Justice to provide testimony is still
    pending in the Federal courts. As a result, the Department's pending
    matter policy applies to any discussion of those cases. Pursuant to
    that policy, I will be happy to discuss matters that are in the public
    record.
        The Nuclear Waste Policy Act of 1982 authorized the Secretary of
    Energy to enter into contracts with generators of high-level
    radioactive waste and spent nuclear fuel--mostly nuclear power
    utilities--through which, in return for the utilities' payment of fees
    into the Nuclear Waste Fund, the Department of Energy agreed to start
    disposing of spent nuclear fuel created by the utilities' production of
    nuclear power beginning not later than January 31, 1998. The Department
    of Energy then promulgated standard contracts through notice and
    comment which contain the terms used in the utilities' contracts. In
    1987, Congress designated Yucca Mountain in Nevada as the sole site for
    which the Department of Energy is to perform a permanent repository
    feasibility determination. While site testing continues at Yucca
    Mountain, construction of the repository cannot begin. The Department
    of Energy has publicly represented that, at the present time, it
    anticipates that the federal repository will not be ready for use until
    2010.
        The Department of Energy's inability to begin acceptance of the
    spent nuclear waste by January 31, 1998 has resulted in two different
    tracks of litigation. The first set of cases were filed by utilities
    who had paid fees to the Secretary of Energy under the NWPA and by
    state commissions. These cases were filed in the United States Court of
    Appeals for the District of Columbia Circuit, as permitted by chapter
    108 of the NWPA, seeking to require specific performance of the terms
    of the standard contracts providing that disposal of spent nuclear fuel
    would begin by January 31, 1998. The D.C. Circuit denied the utilities'
    demand for specific performance, finding that the remedial scheme of
    the standard contracts offers a potentially adequate remedy to the
    utilities. That remedial scheme, which is set forth in the disputes
    clause in the standard contracts, requires the utilities to submit
    their claims for monetary damages to the Department of Energy
    contracting officer for decision, followed by an appeal by the
    utilities to the Energy Board of Contract Appeals of any claims that
    the contracting officer denies.
        Although the D.C. Circuit denied the utilities' requests for
    specific performance, that court also issued a writ of mandamus
    precluding DOE from excusing its delay in beginning disposal efforts by
    arguing on the grounds that it has not yet prepared a permanent
    repository or interim storage facility. Although we filed a petition
    for a writ of certiorari with the United States Supreme Court to
    challenge the writ of mandamus, the Supreme Court denied our petition.
    At the present time, several utilities are continuing to seek specific
    performance in the D.C. Circuit and to seek to compel the Department of
    Energy to reduce the fee payments for utilities still paying into the
    Nuclear Waste Fund.
        A second set of lawsuits is currently pending before the United
    States Court of Federal Claims. To date, ten utilities have filed
    complaints in that court, seeking damages ranging from $70 million to
    $1.5 billion, and totalling approximately $8.5 billion, for alleged
    breaches of contract and takings under the fifth amendment of the
    United States Constitution. We filed motions to dismiss in several of
    the cases, upon the ground that the utilities had failed to exhaust the
    administrative remedies which the standard contracts require, through
    submission of a request for an equitable adjustment to the Department
    of Energy contracting officer followed by an appeal to the Energy Board
    of Contract Appeals. With regard to utilities that have ceased
    producing nuclear power, the Court of Federal Claims, on October 29,
    1998, rejected that argument. The court determined that, because the
    utilities pay fees only during the period of time during which they are
    generating electricity, and because, according to the court, the
    standard contract contains no provision for a refund of previously paid
    fees, the contractual remedy of an equitable adjustment was unavailable
    to utilities that no longer generate electricity because they could not
    offset future fee payments by the damages that they were allegedly
    incurring as a result of the delayed spent nuclear fuel disposal. The
    court also found that DOE's failure to begin disposing of the closed
    utilities' spent nuclear fuel by January 31, 1998 constituted a breach
    of the standard contract, entitling those utilities to damages.
    Discovery related to damages in three cases involving utilities that no
    longer generated electricity has recently commenced. We are currently
    awaiting decisions upon our motions to dismiss in cases involving
    utilities that are currently generating electricity.
        This committee has requested that we address several points
    regarding these cases, including the issue of whether payments of
    judgments arising out of the pending cases would come out of the
    Nuclear Waste Fund. We are presently awaiting an opinion from the
    Office of Legal Counsel regarding this matter.
        The committee has also requested that we address the impact that
    any such payments may have upon program funding. The Department of
    Justice has no specific expertise relating to this issue. We believe
    that the Department of Energy is a better source of information
    regarding this particular matter.
        In light of the fact that the cases that I have described are
    currently pending in Federal court and the short time that we have had
    to review H.R. 45, we must reserve any specific comments regarding that
    legislation. However, we note that, to the extent that Congress,
    through H.R. 45, determines that the Secretary must increase quarterly
    fees or must change the timing of the collection of the one-time fee
    set forth in Article VIII of the standard contracts, which the
    utilities have the option of paying at any time prior to the first
    delivery of spent nuclear fuel under the current standard contracts,
    there is a likelihood that the plaintiff utilities will claim that this
    change would constitute another breach of contract for which they are
    entitled to damages.
        Finally, the Department of Justice joins EPA in its concerns that
    H.R. 45 would preclude application of EPA standards, limit the
    applicability of the National Environmental Policy Act, and preempt
    other federal, state and local environment, safety and health laws.
        This concludes my testimony. I would be pleased to answer any
    questions that the committee may have.

        Mr. Barton. Thank you.
        All members of the panel that wish to make an opening
    statement I believe have done so; is that correct? So we are
    going to start questioning. It is my understanding that members
    have indicated they want at least two rounds of questioning,
    and that is certainly acceptable to the Chair.
        The Chair is going to recognize himself for the first 5
    minutes. I will ask the gentleman from the Department of
    Justice, I was trying to listen carefully to what you said, but
    I missed it. Is the Department of Justice's position that any
    payments that have to be paid to the utilities that have
    successfully sued the Department of Energy are going to come
    from within the waste fund or from without?
        Mr. Schiffer. I think what I was saying is what I say to a
    lot of questions, that it was not at all yet clear. It is a
    question that is being examined elsewhere in the Department.
        Mr. Barton. There is still not a definitive position.
        Mr. Schiffer. That is correct, Mr. Chairman.
        Mr. Barton. I want to ask the gentleman from the Department
    of Energy, is it the current policy of your Department that you
    should be in continual violation of Federal law and not do
    anything about it?
        Mr. Barrett. No. We do--we would like to be able to
    discharge our obligation, but under the existing statutes, we
    have no facility where we can take this material to.
        Mr. Barton. So what is the Department's position, No. 1, on
    accelerating the acceptance, or, No. 2, on coming up with a
    payment plan to pay the damages for not complying with the law?
        Mr. Barrett. The central focus of the administration's
    solution to this is for the long-term permanent solution. That
    is to see if we could have a permanent geologic repository at
    Yucca Mountain.
        Mr. Barton. Say it again, sir. I was listening to my staff.
        Mr. Barrett. The central administration focus is to
    determine if we have a suitable repository site at the Yucca
    Mountain site, and that is where the focus of our work is.
        Mr. Barton. So you are focusing on a permanent repository?
        Mr. Barrett. Yes, sir.
        Mr. Barton. Now, the gentleman from the EPA indicated that
    the WIPP facility in New Mexico has been licensed. There has
    been no material transported to that. It is for a different
    type of material. It is a transuranic waste. Is there any
    support in the Department of Energy to use the WIPP facility
    for the type of waste that the commercial reactors are
    generating on an interim basis?
        Mr. Barrett. There is a completely different statute for
    the WIPP site versus the----
        Mr. Barton. I understand that. I am asking--you just said
    that you want to get a permanent repository. I don't have a
    problem with that. I have talked to the Secretary of Energy
    about that. But we have got a problem right now, and this bill
    sets up an interim facility out at Yucca Mountain which is the
    leading candidate for the permanent repository. Now, if the
    Department of Energy doesn't like that, logically you are going
    to look around for other facilities, and there is one that has
    been licensed for a different type of material. Is that under
    consideration, or is that not under consideration?
        Mr. Barrett. That is not under consideration. The statutes
    are very clear. We are to evaluate only one site for a
    commercial high-level waste repository, and that is the Yucca
    Mountain site.
        Mr. Barton. So you are obeying the law on that particular
    point.
        I want to ask the gentleman from the EPA, you talked about
    the concerns that your agency has with the 100-millirem
    standard, and I think that is legitimate to have a concern like
    that. I know you are working with the--with the NRC to come to
    a consensus on what an alternative standard should be. There is
    a study that was done back in 1986 by a gentleman named Carson
    Mark, who at that time was a member of the NRC Advisory
    Committee on Reactor Safeguards, and he and his staff did
    estimates here in the capital area back in May-July 1996. They
    found out that if you stood in the doorway of the Library of
    Congress all year, you would be exposed to 440 millirems. Are
    you aware of that?
        Mr. Perciasepe. There is a difference between background
    exposure and any additional exposure. I think that may--I am
    not familiar with that study, but that may----
        Mr. Barton. I could go through steps of the Capitol, inside
    the Capitol, inside the Russell Office Building, the Dirksen
    Office Building, but most of those measurements were over 100.
    And that is right here.
        Mr. Perciasepe. I am assuming it is related to background
    radiation versus additional exposure.
        I would also point out that the National Academy of
    Sciences, when they looked at this site, they recommended
    something between 2 and 20 millirems, and again, you see Madam
    Chairman mentioning 25, and they are talking about--I think we
    are zeroing in somewhere in that zone.
        Mr. Barton. If I understood your testimony, your written
    testimony, you had a concern that a 100-millirem standard, an
    average standard for the average citizen in the Las Vegas
    Valley, they would have a 1 in 500 chance of developing cancer.
    I am not sure you said it exactly that way. If that is
    literally true, somebody who worked in the Library of Congress
    and actually came to work every day, they ought to be falling
    like flies over there.
        Mr. Perciasepe. Well, I am not familiar with that study, so
    I can't----
        Mr. Barton. A millirem is a millirem; isn't that correct?
        Mr. Perciasepe. That is correct.
        Mr. Barton. Regardless if it comes from background
    radiation or--a millirem is a millirem. There is not--I mean,
    that is a unit of measure----
        Mr. Perciasepe. There has been some change over some time
    on how we look at it, but you are correct.
        Mr. Barton. You are not advocating that we tear down the
    Library of Congress or the Capitol?
        Mr. Perciasepe. I could go a lot of places with that, Mr.
    Chairman, but I would say no.
        Mr. Barton. Let me ask the distinguished Chairwoman what
    work is being done with EPA to come up with a standard, and the
    committee is very willing to--if 100 millirems is not the
    appropriate standard, we would certainly yield to the expertise
    of the NRC if your agency and the EPA can agree on a standard.
    So could you elaborate on that please, ma'am?
        Ms. Jackson. Yes, Mr. Chairman. I would say that if one
    looks at the pathways standard, and we have a place holder in
    our implementing regulation for Yucca Mountain of 25 millirem
    total effective dose equivalent from all pathways, the last
    understanding we have of the EPA standard is 15 millirem. I
    would say to you that our point of view is that the differences
    between those two things are negligible relative to
    uncertainties and risk coefficients.
        Mr. Barton. I want to make sure I understand that. The
    difference between what two things?
        Ms. Jackson. Fifteen millirem all pathways and a 25
    millirem all pathways.
        Mr. Barton. What is the difference between an all pathway
    standard and this 100-millirem average annual standard?
        Ms. Jackson. Well, our average, which is 100 millirem, is
    from all sources, all sources of radiation above background.
    The 25 millirem is from all sources at Yucca Mountain, so it
    would be all sources above background. The EPA's proposal is 15
    millirem.
        What I am saying is that there is what is known as a risk
    coefficient which translates a dose, a radiation dose, into a
    risk of latent cancer, of latent cancer fatalities. That risk
    coefficient is based on an extrapolation, actually, from
    Hiroshima and Nagasaki. There is enough indeterminancy in it
    that one essentially cannot make a definitive statement as to
    whether a 15 millirem standard gives more protection than a 25
    millirem standard.
        Mr. Barton. I understand that.
        Ms. Jackson. The fundamental differences between the EPA
    and the NRC relate to ground water, the fact that they would
    like to impose a separate ground water protection standard. We
    feel that that is not necessary.
        Mr. Barton. In addition to this other standard?
        Ms. Jackson. In addition to the 15 millirem all pathways.
    They basically want to lift out of that standard a different,
    separate standard for ground water protection.
        It is not that the NRC is not equally interested in ground
    water protection. We feel that the 25-millirem standard is a
    fraction of our overall 100-millirem standard that we feel is
    protective for public health and safety, but to take a count of
    uncertainties projected over a long time periods and to ensure
    that there is no exceedence, we would implement the rule with a
    25-millirem standard. And since the greatest exposure pathway
    at Yucca Mountain is ground water, we feel that that standard
    is equally--is adequately protective, so there is no need to
    have an additional ground water standard.
        I could go on and talk about calculational methodologies
    and the like, but where I think the discussion is settling on
    is this issue of the ground water.
        Mr. Barton. My time has expired. I wonder if the other
    Commissioners wish to elaborate on Chairwoman Jackson. I will
    give that opportunity, and I will give the gentleman from EPA
    time for rebuttal if he so wishes.
        Mr. McGaffigan. Mr. Chairman, just to be absolutely clear,
    and I know you don't deal with millirems every day, 100
    millirems per year----
        Mr. Barton. We go the other way. We deal with billions and
    trillions.
        Mr. McGaffigan. A hundred millirems per year is the current
    public dose limit for all sources of radiation other than
    background radiation. The average individual annual exposure is
    300 millirems. You are in a very high-threat occupation working
    at the Capitol, given the figures you cited earlier.
        Mr. Barton. They indicate the level of our judgment around
    here.
        Mr. McGaffigan. You also travel a great deal. A
    transcontinental airline flight will typically give you about 5
    millirems each time you crisscross the Nation. We have chosen
    25 millirems as a subset of the hundred for this particular
    activity, and that approach is consistent with what various
    international bodies have suggested, including the National
    Academy of Sciences. So, the Chairman's detailed statement
    supports the 25 millirem standard, and we assume your
    legislation permits us to take a fraction of the hundred and
    apply it to Yucca Mountain.
        Our rule also, I believe, fixes many of the other concerns
    that the EPA representative has raised about your bill, if our
    rule is indeed consistent with your bill. We do look at the
    intrusion scenario as was suggested. We do use an average
    member of the critical group approach as opposed to the average
    member of the population approach, which is, again, an
    international standard, and so I believe that if our rule is
    indeed consistent with your bill, most of the EPA concerns
    other than, as the Chairman said, the ground water concern are
    addressed bt NRC's rule.
        Our fundamental concern with the ground water, the
    additional ground water standard, is that if you apply it
    straightforwardly, you can convert a 15-millirem standard that
    EPA is advocating into a submillirem standard. The EPA standard
    for iodine 129, which is one of the isotopes you will find
    potentially getting into the ground water, equates to .2
    millirems, which is approximately one one-hundredth of 15. So
    you get an extremely conservative standard at that point well
    beyond what we believe is necessary for public health and
    safety and almost mindless.
        Ms. Jackson. Mr. Chairman, I know we exceeded our time, but
    let me just elaborate on the last comment Commissioner
    McGaffigan just made. The point is if the EPA has one standard,
    whatever it is, 15 millirem from all sources, separately
    applies a 4-millirem ground water--I mean a separate ground
    water standard, and they actually do it in terms of
    concentration limits in the water, that if you actually convert
    that to a radiological dose, it actually is a tiny fraction; it
    is one one-hundredth of what they say is the overall standard.
    So they de facto are creating not a 15-millirem standard, but a
    .2-millirem standard, and that is the basis----
        Mr. Diaz. Mr. Chairman, if I may just add one quick thing.
    Regarding the difference between 15 and 25, I mean, somebody
    can say the 15 is more protective--what the Commission is
    saying is that, really, there is no significant difference
    between 15 and 25 because it will get lost in the background
    where you are--you just mentioned in the Capitol--nor is the
    certainty on the effects, something that we can pinpoint. The
    bottom line is: what is the cost to the American people of
    actually reducing the standard further and further, when there
    is no significant health benefit to be derived from it?
        Mr. Barton. The Chair would recognize Mr. Hall for at least
    5 minutes and perhaps more.
        Mr. Hall. I will take less.
        Mr. Markey. Can I ask, Mr. Chairman, what is the procedure
    under which we are going to operate?
        Mr. Barton. I am going to attempt to continue the hearing.
        Mr. Markey. I am going to go over and vote. I would like to
    ask----
        Mr. Barton. We will guarantee you will be given at least 5
    minutes to ask questions of this panel, and I bet you are going
    to be given more than that.
        Mr. Markey. Thank you, Mr. Chairman.
        Mr. Hall. Mr. Schiffer, just to tie up the questions that
    the chairman has asked and to go back----
        Mr. Barton. Would the gentleman suspend. I have just been
    told, Congressman Hall, we have got two votes in a row, not
    just one, so we are actually going to take a little break. Do
    you want to ask now or after the break?
        Mr. Hall. Well, I will ask now.
        Mr. Barton. The gentleman is recognized for 5 minutes.
        Mr. Hall. I won't take 5 minutes. I realize that you were
    given a short time to look at the H.R. 45, and you reserved a
    lot of your comments regarding that legislation. Let me ask you
    about the scenario that is placed here where we are concerned
    about a congressional breach of contract. And just to get the
    record and lay the record clear and straight on that, DOE's
    breach comes from the nuclear waste fund. They are compensated
    out of that; is that right? It is correct, isn't it?
        As a matter of fact, DOE has already been held in breach,
    and the next breach could be even greater, but under the
    Winstar case that you have alluded to, that is still an open
    case only in the amount of damages. Is that the only thing?
    There is not anything up on appeal or request for rehearing or
    anything? They have alluded to the Court of Claims for the
    damages in that, have they not, in the Winstar case?
        Mr. Schiffer. Are you asking me, sir, if the Winstar case
    is final, or if these cases are----
        Mr. Hall. No, the Winstar case that you referred to here in
    your testimony.
        Mr. Schiffer. Winstar was a case arising out of----
        Mr. Hall. It is not connected here, but you referred to it.
    In this case it is final except in the amount of damages, and
    that is up to the Court of Claims. There is nothing pending on
    that that will change your testimony?
        Mr. Schiffer. That case was final with respect to the three
    thrifts before it where the court found there was liability--
    there was liability for breach of what the Supreme Court
    ultimately found to be contracts. We are litigating a number of
    other cases arising from the thrift crisis and your
    legislation.
        Mr. Hall. But the hard cold facts are that if we have a
    congressional breach of contract, then taxpayers pay? There is
    no other place to go forward.
        Mr. Schiffer. The Winstar cases teach us that congressional
    legislation, however well intended and for the public good, can
    indeed be liability-creating for breach of contract purposes.
        Mr. Hall. I think that that establishes that. I want to ask
    more questions, but I think we better go.
        Mr. Barton. Since we have two votes, we are going to recess
    until 1:30. That gives about 45 minutes for Members' personal
    convenience and to have a little lunch. But we want our
    distinguished panelists back here at 1:30. That is eastern
    time.
        Mr. Perciasepe. Mr. Chairman, not to interfere with getting
    to the votes and the food, will I have a chance to respond to
    some of the comments?
        Mr. Barton. Yes.
        [Whereupon, at 12:50 p.m., the subcommittee recessed to
    reconvene at 1:30 p.m.]

                               afternoon session

        Mr. Barton. If we could come to order. I want to commend
    our panel for being on time. That is exemplary, given how many
    of you there are.
        Ms. Jackson. We aim to please.
        Mr. Barton. I appreciate that, Madam Chairwoman. The Chair
    is going to recognize Congressman Hall for 5 minutes and then
    we will, as other members show, either I will fill in, but I
    know Congressmen Markey and Pallone have told me personally
    they wanted to ask this panel some questions. So we will
    recognize Chairman Hall, and then if there are no other
    members, I will resume some of my questions. Mr. Hall for 5
    minutes.
        Mr. Hall. I told Markey we would adjourned till next week.
        Mr. Barton. That is definitely a plan.
        Mr. Hall. Mr. Barrett, let me ask you a question. I am glad
    to see on page 7 of your testimony you think the Department is
    more or less on schedule. That is a pretty brave statement to
    make, I think, based on history in the past. But they are
    pretty much on schedule with the environmental impact
    statements and plans to apply for the license for the
    repository, I think in the year 2002, and that you could begin
    accepting waste for disposal by 2010.
        Mr. Barrett. That is correct, sir.
        Mr. Hall. Though that is a lot later than we would like it
    to be, at least the date had not slipped since the last
    subcommittee hearing. Normally it slips and jumps every time we
    meet. You know, one of these days if we can figure out how to
    do it, we are going to hold all you folks to a projection and
    to a date. We are not smart enough to do that. I am not sure I
    know why you didn't meet the dates. Ms. Jackson has been there
    and given me the time to explain those things and to say from
    this point forward they were in better shape to make these
    projections. Do you think that is a realistic timeline? Can you
    meet that, and who is to keep you from it?
        Mr. Barrett. If we complete the environmental impact
    statements, the draft and the final, if we recommend the site
    to the President, should the site be suitable, and most
    importantly if we get the needed appropriations that we have
    requested, I believe that 2010 is very doable. The license
    application date in 2002 will be doable, given needed
    appropriations, and a site that is found to be suitable through
    the evaluation process. And regarding the licensing schedule,
    which the Chairman mentioned that they are prepared to do, if
    the License review stays on schedule, I have confidence in the
    2010 date.
        Mr. Hall. A lot of people who are picking up the bill for
    it and, granted, will benefit from it if and when it ever
    happens are going to make a lot of tough decisions based on
    your projection. You understand that, surely, don't you?
        Mr. Barrett. Yes, sir. We understand this is very serious
    and very important.
        Mr. Hall. I guess, Dr. Cohon, your testimony was
    complimentary about DOE's recent report on the viability of
    Yucca Mountain for a repository. And we appreciate that
    assurance that DOE and their work seems to be on the mark or
    done in a professional manner, which I don't question. I just
    have a real problem with the time, from 1982 when we started
    and we thought we could see the end somewhere down there, and
    every time we met we were told that it couldn't be met and we
    would have to go out and come in again, start all over.
        Can you tell us what are the biggest questions that you
    think that DOE--remaining questions that face you, and what do
    you have from here on out to make those projections work, and
    what are you doing to resolve and move the program forward?
    That is an easy one. You ought to knock that one right out of
    the park.
        Mr. Cohon. Thank you for that softball, Mr. Congressman. As
    I said in my testimony, the DOE in fact is pursuing work in all
    the areas that we identified and the DOE also identified as the
    critical ones for further research before making the
    suitability determination currently scheduled for 2001--major
    areas. And it is well outlined in the viability assessment, so
    I won't go through it in detail. But they include the so-called
    unsaturated zone; that is, the area in which the repository
    itself would be located; and in particular how water moves
    through that; and in particular, seepage into the tunnels in
    which the waste would be placed, trying to predict that; the
    effect of that on waste packages and the performance of the
    materials in those packages, especially understanding more
    about the corrosion properties of the materials that DOE is
    studying, that is a key. And then finally, understanding if
    these packages are breached, and surely they will be
    eventually, given enough time, how the materials would be
    picked up by water and moved through the rest of the
    unsaturated zone to the saturated zone and eventually to the
    accessible environment. Here where special interest is, as is
    DOE, in retardation of the unsaturated zone for the movement of
    radionuclides through it, as well as retardation in the
    saturated zone, the water table after the material reaches the
    water table, these are big areas of uncertainty, and these are
    the things that we think the DOE should be focusing on, and
    they are.
        Mr. Hall. And if they focus on them, there is something
    they can do about it to keep us on target for the projections
    that have been made?
        Mr. Cohon. The time projections, you mean. The Board feels
    that the current schedule, which has been the schedule in place
    for some years actually, of a suitable determination in 2001 is
    very ambitious. That is not to say it is not doable but there
    is considerable work yet to be done.
        I want to emphasize very strongly that the viability
    assessment was an extremely important milestone. Even though it
    does not establish suitability, nor was intended to, it allowed
    the DOE to bring together and integrate all the information
    that it had collected to date and make sense out of it, make a
    whole picture out of it, and to identify very clearly the
    remaining information that they need to get.
        That could not have been said even 1 year ago, Mr.
    Congressman, and certainly not 5 years ago or 10 years ago.
    That is real progress by the DOE.
        That is not to say we don't have work ahead of us. As I
    said, we do. It is a very ambitious schedule to get all the
    work done before 2001 when the suitability determination is
    scheduled to be made. We will see if they can make it.
        Mr. Hall. Anybody else? Chairman Jackson, would you like to
    comment on that?
        Ms. Jackson. To this point, I think the schedule has been
    proceeding according to what you have heard in the past. I
    think that we do have some concern relative to having adequate
    resources if this bill passes. Because it also requires
    activity on an interim storage facility, we need to have the
    resources to allow us to be able to move along in a dual way on
    both the central interim storage facility and the repository.
    But as things stand in terms of satisfying the requirements of
    the existing law with the schedule that has been laid out for
    some time now, things seem to be moving along in that way.
        Mr. Hall. I thank you and I yield back my time.
        Mr. Barton. Thank you, Congressman Hall. The Chair is going
    to recognize the gentleman from Massachusetts. Would it help
    the gentleman if we recognize you for 10 minutes?
        Mr. Markey. That would be so great.
        Mr. Barton. Because I am going to ask some more questions,
    but if you can do it in 10 minutes, you indicated you had some
    other activities.
        Mr. Markey. Excellent.
        Mr. Hall. Eight minutes have already gone.
        Mr. Barton. We are on a logarithmic scale. We would
    recognize the gentleman from Massachusetts for 10 minutes.
        Mr. Markey. Thank you, Mr. Chairman. That will help me to
    recap just how we got here today. It all begins in the early
    1980's on this committee when the nuclear industry comes in
    lobbying us passionately for the passage of the Nuclear Waste
    Act. They just push us toward passing this legislation,
    demanding it, insisting upon the bill passing to solve the
    nuclear waste issue.
        In effect, they testified at this very panel, telling us
    that it is not that hard to solve the nuclear waste problem and
    that they will cooperate with our government in helping to get
    this problem solved, working closely with the Reagan
    administration in order to accomplish the goal; the Reagan
    administration agreeing it is a problem that can be solved but
    consulting with the private sector all the way, who is
    demanding that the legislation pass.
        People like me, I oppose the bill because there are NEPA
    exceptions built into it, and they are not going to build a
    repository big enough for defense waste as well.
        If there is a nuclear waste problem, why don't we build a
    facility big enough for the military nuclear waste as well,
    which they don't want to do because they just have their own
    little public relations problem.
        But the bill passed, and what it set up was a process
    whereby several different potential waste sites around the
    country would be studied, including sites in New Hampshire,
    Maine, North Carolina, Tennessee, Louisiana, Texas, Washington,
    Nevada. The plan was to eventually site one dump east of the
    Mississippi and one west of the Mississippi. That is where we
    were in 1982.
        And then the sites started dropping off as the Reagan
    administration was looking at these different possibilities.
    Jim Baker did not want New Hampshire on the list. I don't know
    why. I forget what the exact reason was why New Hampshire
    shouldn't have a nuclear waste site, but they took New
    Hampshire off of the list. And Maine dropped off because of the
    objections of Senators Mitchell and Cohen, two significant
    players in the Senate at that time. North Carolina, because Jim
    Broyhill was the ranking member on this committee at the time.
    He didn't think North Carolina would be a good site for nuclear
    waste. And Louisiana was well represented by Bennett Johnson
    over in the Senate at the time, and he felt that the salt mines
    in Louisiana weren't the kind of place you should look to
    characterize for----
        Mr. Barton. Is there a question?
        Mr. Markey. Like most Congressmen, most of my questions
    come in the form of answers.
        So then you have Washington State. You have the Hanford
    Reservation up there. Tom Foley, at the time Majority Leader,
    didn't think the Hanford site would be good, so that was taken
    off as well. And Jim Wright came from Texas, which was very
    helpful in making sure the Texas sites would also be removed.
        Mr. Hall. We don't need it in Texas.
        Mr. Markey. We don't need it in Texas. Then it came to:
    where can we put it now after we have gone through this very
    detailed scientific study about where it should go? Let's see,
    which State only has two Congressmen and two Senators? Let's
    pick the smallest State we can find and stick it with the
    ``nuclear queen of spades.''
        And this committee as a result comes back in 1988, and we
    pass a new law based upon our own very detailed scientific
    study, and we pick Nevada. We pick it, the committee. And it is
    under pressure from the nuclear lobbyists who are sitting out
    in the audience at that time, who are saying, pick Nevada. They
    lobby each one of us. They come into our offices. They demand,
    they beg, they cajole. And so we passed the bill saying it is
    Nevada, based upon the nuclear industry's demands that we do
    so.
        Now, what does the industry do now? Well, when DOE can't
    meet the ridiculous deadlines that were set by the nuclear
    lobbyists demanding the Congress pass laws toward that goal,
    and hasn't satisfied the political problems that the industries
    have back in their own home States, they sued the Department of
    Energy for breach of contract. They sued them after
    representing to the industry, to the Congress, and to the
    administration, that the problem was solvable. Never mind that
    the contract contained provisions allowing for unavoidable
    delays. They sue.
        Now, this is after the Reagan and Bush administrations
    can't get it done, the two most pro-nuclear administrations in
    the history of the United States. It is not as though the
    Department of Energy during those 12 years wasn't completely
    and totally committed to trying to solve the problem. It was
    only that it was unvoidable. So they sue and they convince the
    courts to buy their dubious breach-of-contract arguments.
        Now, the Justice Department testimony tells us that the
    industry is now asking for over $8 billion in damages for those
    breach of contracts. If the courts were to award them, that
    would empty the nuclear waste fund. Moreover, more and more
    utilities reach the point in time when they come to the head of
    the line of companies who would have been eligible to get rid
    of their waste, had DOE been able to meet the January 1998
    waste acceptance deadline, and more and more lawsuits will be
    launched.
        What remedy will be available to them if the nuclear waste
    fund is empty? Presumably it would be deferral of further
    payment of fees into the fund. And so what I can very easily
    see happening here is a feedback loop of litigation, resulting
    in further delays, resulting in yet further litigation.
    Essentially, the industry will be transforming the nuclear
    waste fund into a giant nuclear Ponzi scheme in which early
    winning litigants are compensated out of the fees paid by other
    utilities, until the whole radioactive house of cards
    ultimately collapses.
        What happens at that point? The utilities force the
    taxpayers to move in and pay for cleaning up the mess made by
    the industry in demanding to the Congress that we pass an
    unachievable goal and then sueing to deplete the fund that was
    going to be used to accomplish that goal. And then they turn to
    the taxpayers who had nothing to do with this debate from the
    get-go and ask them to pick up the costs for eternity of
    solving the problem. And at the same time they pocket the
    judgments in the cases, in the settlements that they reach with
    Uncle Sam.
        So my concern here is that as we get deeper and deeper into
    this story, more and more people forget how it all started, how
    we got to this point, how all of the original assumptions were
    completely unrealistic; and that we, the Congress, and the
    American people are now suffering from our detrimental reliance
    upon the holding out by the nuclear industry that this was an
    eminently solvable problem; and that they should be ashamed of
    themselves for then suing our government to deplete the funds
    that were put into this kitty in order to solve the very
    problem that they wanted us to work on.
        And the people who were down here, who were doing their
    best to deal with this issue scientifically, should be praised
    because they are doing their absolute best. But they didn't
    pick a site near an earthquake fault; we did. And as we ask
    them to reconcile this decision with the assignment which we
    have given them, it is natural that it is going to cause a lot
    of problems.
        So make no mistake about it: The industry has no intention
    of ever seeing a permanent repository opened. Ever. They have
    no concern about it at all. Never have, never will. They will
    be content to leave the problem festering out in a warehouse in
    Nevada in the hope that some future generation will find a way
    to deal with it.
        We are engaged here in an intergenerational punting of this
    environmental issue. Hopefully two and three generations from
    now, they can figure it out. That is what this generation of
    nuclear executives say. Someday they may come back and even
    convince us to spend tens of billions of dollars on this issue.
    Who knows?
        But I think we have a responsibility to make sure that this
    problem is solved in our generation. We consume this nuclear
    electricity. We get the benefits of it. We should solve the
    problem, and we should not allow the nuclear industry to allow
    for this highest environmental goal which our society has, that
    is, the siting of a permanent nuclear waste repository, to be
    lost because it no longer squares with their short-term
    political agenda.
        So my question is to you from the Environmental Protection
    Agency----
        Mr. Barton. You have got about 45 seconds.
        Mr. Markey. [continuing] How bad would it be if these
    environmental standards were compromised? Is it a really
    dangerous environmental condition that will be created if this
    law is passed? How dangerous is it?
        Mr. Perciasepe. Well, I don't think that we have progressed
    far enough from all the work that is being done to know exactly
    what could happen. That is part of the licensing process. The
    key to the licensing process and the point that I was trying to
    make in my testimony is that you want to have protective
    standards that provide the public confidence that the work that
    will be done to design and implement this project will be
    protective and they should be equivalent or very similar to
    what we would do anywhere else in the country. And I pointed
    out that we have already done this at the waste--the WIPP site.
    We do this for every hazardous waste site around the country.
        And the question is, the point I was trying to make,
    Congressman, is that the standards, if appropriately set in a
    way that is protective as we have been in all areas of these
    kind of--whether they be hazardous waste disposal or
    repositories, geologic sites, whatever--that that bill is
    public confidence and that--so I can't predict nor have I
    predicted----
        Mr. Markey. Would EPA recommend a veto in its present form?
        Mr. Perciasepe. Yes, they would recommend to the President
    that the bill in its present form be vetoed. That is in my
    written statement.
        Mr. Barton. The gentleman's time has expired. The Chair is
    not going to go vote. So I am going to miss this vote honoring
    King Hussein. It is going to be a unanimous vote with the
    Members present, so I am going to stay and continue the
    hearing. Obviously if members wish to go express themselves on
    that, they should.
        I am going to recognize the gentleman from Michigan for 10
    minutes. If other members are not present when he concludes, I
    will resume questioning this panel but I want to finish this
    panel.
        Mr. Dingell. I am very anxious to not miss this vote. Let
    me first of all ask this question quickly. We spent now about
    $9 or $10 billion on characterizing this site, have we not?
    What is the number?
        Mr. Barrett. We have spent a total of about $3 billion on
    the Yucca Mountain site, including payments to States and
    oversight at Yucca Mountain.
        Mr. Dingell. And we have collected $9 or $10 billon and we
    are going to have to spend the whole $9 or $10 billon to
    characterize it at the present rate of expenditure before we
    complete this site, are we not?
        Mr. Barrett. We have looked at the total system.
        Mr. Dingell. Yes or no?
        Mr. Barrett. Yes.
        Mr. Dingell. So we have got to do something to solve the
    problem; right?
        Mr. Barrett. Yes.
        Mr. Dingell. Let's talk about the Tucker Act. U.S. versus
    Winstar sounds a very important cautionary note when
    congressional legislation could be construed as affecting later
    contracts between private parties and Federal Government. Is
    that not so? This goes to Mr. Schiffer. Mr. Schiffer?
        Mr. Schiffer. Yes, sir, that is one way broadly to read
    Winstar.
        Mr. Dingell. I went through this with regard to the Penn
    Central business and I remember it cost us about $7 billion
    because the Congress was not careful in that particular matter.
    On the basis of the holding in U.S. v. Winstar, it very simply
    is that Congress should avoid drafting legislation that
    arguably affects pre-existing governmental contracts. Is that
    not so.
        Mr. Schiffer. I think that is also broadly so.
        Mr. Dingell. Is it possible that this legislation does
    affect pre-existing government contracts?
        Mr. Schiffer. Without suggesting that I have really been
    through the legislation enough to comment in detail, there are
    questions raised.
        Mr. Dingell. But it is a matter of concern, is it not?
        Mr. Schiffer. That is correct, sir.
        Mr. Dingell. Now, the amount of Winstar damages, the
    ``Washington Post'' pegs it at $32 billion. I understand about
    $8 billion in potential claims are lying under that particular
    case; is that right?
        Mr. Schiffer. In the Winstar line of cases themselves?
        Mr. Dingell. Yes.
        Mr. Schiffer. It is hard to know exactly because many of
    the complaints do not state dollar amounts. We obviously think
    the claims are highly inflated and we think they are going to
    come in significantly below. But any way you look at it, there
    are substantial sums at stake.
        Mr. Dingell. You might get a surprise the other way, might
    you not?
        Mr. Schiffer. We are completely confident, as we always
    are.
        Mr. Dingell. The courts are notoriously spending taxpayers'
    money in lawsuits of this kind, are they not?
        Mr. Schiffer. I am sorry?
        Mr. Dingell. The courts are notoriously generous with the
    taxpayers' money in cases of this kind, are they not?
        Mr. Schiffer. Since we tend to believe in stinginess in
    that regard, I would sometimes characterize it that way.
        Mr. Dingell. The courts have a different view, do they not?
        Mr. Schiffer. That can be true.
        Mr. Dingell. From what source would the damage claims be
    funded?
        Mr. Schiffer. That is an issue that is being looked at by
    our Office of Legal Counsel.
        Mr. Dingell. If the fund is exhausted, they then come out
    of general revenues, however, is that not so?
        Mr. Schiffer. They could either come out of the
    appropriation for the payment of judgments or settlements, or
    if our Office of Legal Counsel determines that some other fund
    is available, that would be the source. I am just not in a
    position to speak to that now.
        Mr. Dingell. Now, Mr. Schiffer, you believe the plaintiffs
    would accept to construe the funding provisions of H.R. 45 as
    amounting to a congressionally induced breach of contract, do
    you not?
        Mr. Schiffer. I always assume the plaintiffs are ready to
    do that type of thing.
        Mr. Dingell. I recognize you do not speak to the merits of
    such arguments, but I do appreciate your raising this concern.
    Now, we are speaking in theoretical terms, but do you expect
    the plaintiffs asserting such arguments to cite the holding in
    U.S. v. Winstar as the basis for the claims?
        Mr. Schiffer. I think the plaintiffs in these cases have
    been doing that in articles I have read and in pleadings they
    have filed.
        Mr. Dingell. If such breach of contract claims succeeded
    and damages were awarded, where would the court get the money
    from? I am assuming it would either be the judgment fund or the
    nuclear waste fund; is that right?
        Mr. Schiffer. That is essentially the case. That is what is
    being studied now.
        Mr. Dingell. How do we avoid these potential Winstar
    problems? What drafting has to be done to avoid that?
        Mr. Schiffer. I don't think, Congressman, I am in a
    position to speak with any precision other than to offer our
    assistance in working with the staffs.
        Mr. Barton. Would the gentleman suspend? Simply, if you
    wish to make the vote, Congressman Dingell, you have got 3
    minutes in the vote and 5 minutes in the questioning time.
        Mr. Dingell. Mr. Chairman, your wise counsel is accepted.
    With your permission I will leave the room.
        Mr. Barton. I will keep this panel busy until you or
    another member comes back.
        Mr. Dingell. Thank you, Mr. Chairman. I will return
    promptly.
        Mr. Barton. You have 5 minutes remaining when you do
    return. In the absence of any other member, the Chair is going
    to recognize himself for such time as he may consume until
    other members return to ask questions. I wanted to ask the
    distinguished Chairwoman of the NRC and the gentleman from the
    Waste Transportation Board--he may have expertise on this. The
    Governor and the Congressman from Nevada talked about the
    disadvantage of this site because of earthquakes, and mentioned
    that there had been some earthquakes approximately 3.0 on the
    Richter scale and one as large as 4.0 within the last several
    months or at least several years. My understanding of the
    Richter scale is that if you go from a 3 to 4, that is a factor
    of 10 in the increase. My understanding is also that while the
    site design has not been finalized, preliminarily they are
    looking at a standard that would withstand an earthquake over
    6.5 and maybe as high as 7.0. So what is the difference in the
    degree of power between a 3.0 earthquake and a 7.0 earthquake?
        Ms. Jackson. Factor of 10,000.
        Mr. Barton. So although we have had some earthquakes in the
    region that have obviously been measurable, there has been no
    earthquake that would exceed what we expect to be the design
    capacity of the facility, is that correct?
        Ms. Jackson. As far as we understand from what DOE has
    represented in terms of the design of the waste packages, that
    is correct.
        Mr. Barton. Dr. Cohon, do you wish to comment on that?
        Mr. Cohon. Yes, I do. I don't want to preempt a line of
    questions that you are going along. Shall I wait till you have
    more earthquake questions?
        Mr. Barton. Will you answer that one and my fertile mind
    will come up--unlike Congressman Markey, I like to ask
    questions and not assume I know the answers.
        Mr. Cohon. The DOE has found, or the DOE's position is that
    seismic hazard, earthquake hazard, should not be viewed as a
    disqualifying condition for the site. The Nuclear Waste
    Technical Review Board agrees with that. We think they are
    correct in that assessment.
        Just to add a little more detail to Chairman Jackson's
    commentary with you and your own point, the location of this
    most recent swarm of earthquakes, a fault called the Rock
    Valley Fault, is not a surprise to DOE or to anybody else who
    studied the site. Indeed, it was anticipated that there would
    be earthquakes there. And furthermore as you pointed out, Mr.
    Congressman, the intention for the design--and we are confident
    that DOE can achieve this--is to have a design for the facility
    which would not be affected by earthquakes as large as the
    magnitude you mentioned in that location, some 25 to 45
    kilometers away from the Yucca Mountain site.
        So to summarize the key point, we do not believe it is a
    disqualifying condition.
        Mr. Barton. Let's assume the worst case. Let's assume that
    we had a massive earthquake, 7.0, perhaps even larger, and we
    actually had the interim facility licensed and in operation,
    which I understand is going to be an above-ground facility
    probably, with some coverage from the elements in terms of rain
    and wind.
        These canisters--what is the worst thing that could happen
    to one of these canisters in the interim facility, not down in
    the mountain in the permanent, but upstairs if we had a massive
    earthquake?
        Mr. Cohon. Everything I just said pertained to the
    repository, the underground permanent facility. None of it
    pertained to the surface. I would have to defer to someone else
    on the surface. We have not studied that.
        Mr. Barton. I have been told, and obviously am willing to
    be corrected, with these canisters the worst thing that would
    happen is they would dump over on their sides.
        Ms. Jackson. The standards we apply today for dry cask
    storage canisters would allow them to withstand an earthquake
    of the magnitude that you describe.
        Mr. Barton. Obviously we would rather there be no
    earthquakes or fewer earthquakes or smaller earthquakes, but
    this concern--and from a political standpoint it is obvious
    that people are going to be concerned if the thing is located
    where there have been some earthquakes. But from an engineering
    standpoint and a design standpoint, as Dr. Cohon said, in the
    Department of Energy's view and the Regulatory Commission's
    view, that is not something that hasn't been accounted for.
        Mr. Cohon. Right.
        Mr. Barton. Is there anybody that wants to dispute that?
    Madam Chairwoman, I would like for you to directly comment on
    the bill that is before us. In your view or the Commission's
    view, do you believe that if it were to pass and become law,
    that it would give the NRC the flexibility to properly manage
    and regulate this site or make sure that it was in a safe
    fashion put into operation?
        Ms. Jackson. Thank you, Mr. Chairman. If the understanding
    were that the 100-millirem standard embodied in the bill is
    meant to be an upper limit within which the NRC were able to
    implement a regulation, with a 25-millirem standard as a
    fraction of that; further, if the NRC were allowed to, our
    anticipation would be to, in fact, have an analysis done of an
    intrusion scenario having to do with a bore hole kind of
    analysis. If those kinds of understandings were there, we feel
    that H.R. 45 allows us the flexibility that we need to
    implement our rule.
        Mr. Barton. Mr.--I am going to say Perciasepe--am I close?
        Mr. Perciasepe. That is perfect.
        Mr. Barton. You indicated before the break that you wanted
    an opportunity to respond to some of the comments on the
    differences of opinion about the radiation standard that is
    currently under review in your organization as opposed to the
    NRC. I have got some other questions on that, but I want to
    give you an opportunity to respond before I ask them.
        Mr. Perciasepe. I won't go into great detail because I
    don't think it will serve the committee for us to debate it in
    great detail here, but I did want to say one thing about it.
    Our general policy in the administration and certainly at EPA
    is that potential sources of drinking water, and you can say in
    particular in an arid part of a country, ought to be protected,
    and no one here is saying that shouldn't happen.
        Our general policy also follows that the protection should
    be such that some future generation isn't going to have to
    treat it in some way to be able to utilize it. I think what we
    end up discussing here is how much contamination might occur
    before that would become a problem.
        Mr. Barton. You are focusing just on your concern about the
    groundwater.
        Mr. Perciasepe. That is correct, sir, and its utility in
    the future. And I guess I would say if this site is good and,
    you know, a lot of--you are already questioning the people who
    are working on that aspect of it--really this should not be an
    issue and we certainly don't, I believe, want to set up a
    system, as I mentioned earlier, a system where for some reason
    we decide that the area around here should have less protection
    or standards that are not as protective as we would have any
    other place in the United States. It seems like we would want
    just the opposite.
        We want to make sure that given the responsibility that the
    State of Nevada would be taking on here, that we would want to
    make sure that the protection is equivalent to what other
    people have. That being said, we continue to look pretty hard
    at how you would apply these standards, and I think that within
    that framework continues to be part of EPA's work on what its
    standards package would be. So I would just leave you with that
    and some of the philosophical reasons why I think we are very
    interested in groundwater protection.
        Mr. Barton. Now, we have got some other members here, so I
    am going to let--I have filibustered long enough, I guess, but
    I do have a few questions on this standard. The EPA was
    directed in 1982 on the Nuclear Waste Policy Act to develop the
    standard. They actually, to their credit or your credit--your
    agency actually did but the courts threw it out. We came out in
    the Energy Policy Act in 1992 and said you ought to issue--
    again asked, directed that you should issue the standard. That
    hasn't happened yet.
        In preparation for this hearing, we were told at the staff
    level that Moses has come down from the mountains with the Ten
    Commandments and you are getting ready to issue the final rule,
    or at least it is on somebody's desk at the EPA, who is
    probably on vacation somewhere. When do you expect to actually
    have this final rule released? Is that subject to negotiations
    within the NRC? Are you all ready to go? Give us some guidance
    on timing.
        Mr. Perciasepe. I appreciate the question. I think it is
    appropriate. First, we also are trying to work with the
    National Academy of Sciences recommendations that we got in
    1996, and of course it is now 1999, and I think we need to get
    on with it. And I would agree with that statement. I think we
    are talking about weeks to maybe months, but I mean very soon
    we plan to--I want to personally visit the site. I think it is
    important for me to get a sense of what is going on out there.
    I am planning to go out there with the Department of Energy in
    a couple of weeks.
        The schedule that was up here which is missing now, that is
    related to the schedule that everybody else has been talking
    about, I think is totally doable from our perspective. There it
    is. It has the EPA standards sometime this year, with it being
    available next year. And the time for that process I think is
    showing with a question mark in the middle of the year. I am
    sure we can beat that.
        And I would also want to add, Mr. Chairman, we are not
    really negotiating with folks on this site. I do believe we are
    having, I think, constructive discussions with our colleagues
    that relate to how we should approach the standard-setting
    process within the confines of the law that you guys have
    provided to us. And I think that that has been a helpful thing
    to improve it.
        Mr. Barton. As the subcommittee chairman, let me give you
    some advice.
        Mr. Perciasepe. Yes, sir, I am ready.
        Mr. Barton. It is only advice. It is not a mandate. I don't
    believe in too many mandates. Based on this hearing record, we
    are going to try to develop a consensus, at least on the
    subcommittee, about what changes need to be made in the pending
    bill and incorporate those on a bipartisan basis and have a
    subcommittee markup in the very near future, certainly within a
    month, a month and a half.
        The Secretary of Energy has asked for a little time and we
    will try to honor that request. But this isn't something that
    we plan to be holding in abeyance for the next 6 months. So I
    would strongly encourage you to get with your people and
    Administrator Browner and whoever else is involved in these
    constructive discussions and be constructive as expeditiously
    as possible, because we would like for you to--not you
    personally, but the agency to have its rule available to us
    before we go to markup.
        Mr. Perciasepe. I appreciate that.
        Mr. Barton. The Chair will recognize the gentleman from
    Illinois, Mr. Shimkus, for 5 minutes.
        Mr. Shimkus. Thank you, Mr. Chairman.
        Mr. Barton. Actually, Mr. Dingell is back and he had
    suspended.
        Mr. Dingell. I will defer, Mr. Chairman.
        Mr. Barton. I didn't realize that Mr. Dingell had come
    back. We will go ahead with Mr. Shimkus for 5, and then Mr.
    Dingell has 5 minutes remaining on his.
        Mr. Dingell. That is fine, Mr. Chairman. I thank you.
        Mr. Shimkus. I thank the chairman. I thank the ranking
    member. It is good to see familiar faces.
        In my second term now, I can start figuring out some folks
    who testified before the committee before. So welcome. And I
    apologize. This is one of the craziest schedules I have seen
    for a long time, and I have been up on the floor three times
    but haven't made it back into the room because of guests
    pushing me away to other areas. And I apologize for that. I
    would like to thank the DOE for the interim report. I think it
    is telling.
        An initial comment I would like to make is that we also
    lose sight that we already have 78 temporary storage sites
    across the Nation. There are some benefits to locating them
    into one site, and I would encourage that we do that.
        Also before I left, and this may have been addressed
    earlier and I apologize, I would like to know, Mr. Barrett,
    first can you define for me the difference between
    ``viability'' and ``suitability''? Was that asked earlier?
        Mr. Barrett. The viability is basically a status report of
    what we know about Yucca Mountain today as of 1998, the end of
    1998. It lays out the work that we intend to do to get to the
    suitability, which is a higher decision.
        The suitability is where the Secretary under the 1982
    statute does the following; we have to complete the
    environmental impact statements, draft and final, have public
    hearings, receive comments from the public hearings in the
    State of Nevada, and receive a letter from the Chairman of the
    Nuclear Regulatory Commission. Then we would assemble all that
    information to see if the site meets the criteria necessary to
    be designated the Nation's geological repository. That
    statutory requirement is a much higher decision.
        The viability is a status report to stop or to continue.
        Mr. Shimkus. The viability assessment is going relatively
    well, we would think. There would be some disagreements, I
    guess. But if it is declared viable, do you know--with the
    viability indicating that it is a suitable site, but I can't
    use that word because of ``suitability,'' the administration,
    will they make the determination based upon viability or will
    they make it based upon suitability?
        Mr. Barrett. Well, the Secretary must determine that the
    site is viable, to continue to see if it could be suitable.
    This is higher level. So it is worthy--let me avoid the word
    ``suitable.'' It is worthy of continuing the scientific work to
    see if this site is scientifically suitable to be the Nation's
    repository. If we can make the demonstrations on science that
    the site meets the suitability criteria, then the site would be
    recommended after we complete the administrative processes that
    are involved.
        Mr. Shimkus. Will the political determinations be made in
    the suitability equation? Will political considerations be made
    in suitability determinations?
        Mr. Barrett. The process for the site to be designated the
    Nation's Geologic Repository Site has a political component to
    it. However, first there is the scientific component. That is
    what we are focused on now, the scientific suitability of the
    site. This is job one that we are focusing on. Once that is
    done, we have the chance for many public hearings throughout
    the Nation on this decision through the environmental
    processes.
        Afterwards, the Governor of the State of Nevada as well as
    the legislature of the State of Nevada under the NWPA has the
    authority, if they wish, to disapprove the site. The site would
    remain disapproved unless there is a ruling by the Congress to
    override their disapproval. So there is a political component
    as well as a scientific. But we are continuing to focus now on
    the scientific suitability of the mountain.
        Mr. Shimkus. Based upon listening to the Governor's
    testimony, I have great respect for him, but there was nothing
    positive about the site, the facility, and anything that we are
    planning on doing. He also brought up the groundwater issue.
        So I would like to ask you and Mr. Cohon: Does recent
    evidence suggest that rapid groundwater transport affects your
    assessment of the Yucca Mountain site? Do you adhere to his
    position, the Governor's position on the groundwater issue?
        Mr. Barrett. Water is the predominant mechanism that can
    transport radioactivity from the repository site. So water is
    the central focus, and the central issue of the scientific
    suitability considerations, as well. As we go through a
    licensing process, would have to demonstrate the performance of
    the site for many thousands of years. So water is critical and
    water is key. This is where a majority of our work is focused.
    Dr. Cohon mentioned, the unsaturated zone, the interactions of
    the water with the waste package and the design of the
    repository, and also in the layers below the repository in the
    saturated zone. Water is key.
        Regarding the standard. The standards will be set under law
    by the EPA and by the NRC. We will have to scientifically
    demonstrate we meet those standards, whatever they are. And if
    we can scientifically demonstrate this in a rigorous NRC
    hearing process, then I believe the site would go forward.
        Mr. Shimkus. Could Mr. Cohon respond?
        Mr. Barton. Sure.
        Mr. Cohon. Thank you for asking. Let me add to that. Mr.
    Barrett said water is the key mechanism or the key part of the
    mountain that will affect the waste. It is also a key source of
    uncertainty. ``Uncertainty'' is a very important word when we
    are talking about Yucca Mountain and this repository and
    ultimately the decision as to whether or not it is suitable and
    whether one should go ahead.
        To elaborate a little bit on Mr. Barrett's comment with
    regard to suitability, the Board believes that how uncertainty
    is treated is a key dimension of a suitability determination.
    And the decision that will have to be made in 2001 or whenever
    the Secretary gets to that point will be whether the amount of
    remaining uncertainty about DOE's projections is acceptable;
    that is, are we confident enough that the mountain will work or
    not? And that is a key dimension of suitability.
        The work that DOE is involved in now and until it gets to
    the suitability determination is all about trying to reduce
    that range of uncertainty so we can try to learn more and more
    about groundwater, about the materials that they would use in
    the canisters so that we can narrow that range of uncertainty.
        Groundwater, the very issue you raised, Mr. Congressman,
    groundwater travel time is one of the largest sources of
    uncertainty. We just don't know. Furthermore, we will never
    know exactly how fast water will move through this mountain.
    That is just not within the realm of today's science.
        Just one additional point. You didn't say it and the
    Governor didn't in his verbal comments, but I think it is
    probably in his written remarks. The key finding made by DOE
    was with regard to an isotope called chlorine 36 which
    indicated that water had moved through the mountain more
    rapidly than people would have predicted before this finding
    was made, which is why they do the studies they do. Very
    valuable finding. That does not mean, though, that water will
    move in 50 years--that is the estimate--from the surface to the
    repository. It just means it can. And that is not a big
    surprise because we know this is a very fractured geology with
    so-called fast pathways. The real question is how much water
    will move through these fast pathways and will it seep into the
    tunnels where these canisters are located. These are questions
    we need to try to make predictions about and it is difficult.
        Mr. Barton. Before I recognize Mr. Dingell, just a couple
    of follow-ups on that. What is the average rainfall on the
    surface?
        Mr. Cohon. I will blow that estimate. Let me turn to
    somebody who really knows.
        Mr. Barrett. Under present climate conditions,
    approximately 7 inches of rain on the surface.
        Mr. Barton. Seven inches per year.
        Mr. Barrett. Per year, yes.
        Mr. Barton. And the interim storage facility if it is put
    there is going to be on the surface; isn't that correct?
        Mr. Barrett. That is correct.
        Mr. Barton. The water table that the water would eventually
    enter, how far below the surface is that?
        Mr. Barrett. Well, from the crest of the mountain, it is
    about 1,500 to 2,000 feet, depending on where you are. Where
    H.R. 45 envisions probably an interim storage site on the
    Nevada test site, the water level varies. We don't know exactly
    where we are going to place an interim storage site, but
    probably about 1,000 feet.
        Mr. Barton. About 1,000 feet in between where you would
    probably put the interim storage facility and where you think
    the water table is, the material between there is this rock
    that is fractured? It is not sandy loam? It is generally
    impervious unless there is a fracture in it. Is that correct or
    incorrect?
        Mr. Barrett. I think we are confusing two different types
    of facilities here. There is the geologic repository. That is
    the tunnels under the mountain. That is highly fractured. If
    you would put in an engineered facility, which would be a
    concrete pad with storage canisters on it that the Nuclear
    Regulatory Commission certified, that would probably be in the
    area of 25, a little bit to the east, where Yucca Mountain is.
    That would be probably on a flat, Jackass Flats in that general
    area, or Midway Valley. There the surface is on alluvium
    primarily which is just like gravel. Exactly how far down that
    alluvium is, how far down I don't know. The water level is
    fairly deep. It is probably alluvium down to some depth of
    several hundred feet. Then you may have volcanic fractured tuff
    down to the water table.
        But there are differences--for interim storage. There is
    basically complete containment through the canister system,
    which engineers could maintain indefinitely. So there should
    not be leakage. The NRC requirement would be that the
    engineered canisters for interim storage would not leak and
    there would be double containment and seals.
        Mr. Barton. That is the point I am trying to get to. We
    have got a decision to make on the permanent repository, but
    the focus of the bill before us is really to set up the
    possibility of an interim facility while you are continuing to
    assess--as you say, the Department's priority is the permanent
    facility. And if water transmission is the key issue, I am
    trying to establish the water transmission from any
    contamination from the interim facility, which is on the
    surface and in these canisters. And if I understood you just
    correctly, you said that is not a problem.
        Mr. Barrett. The discussion about appropriate long-term
    drinking water standards I do not believe is an issue with an
    interim storage facility. That is an issue for a deep geologic
    repository system.
        Mr. Barton. Madam Chairwoman did you want to?
        Ms. Jackson. Right. The requirements that we have for
    canisters to store fuel today onsite are such that
    contamination of the drinking water source is not an issue for
    the period over which those canisters are certified. Now, to be
    honest----
        Mr. Barton. Do you agree with that, Mr. EPA?
        Mr. Perciasepe. Is that the short version of Perciasepe?
        Mr. Barton. I can say EPA.
        Mr. Perciasepe. EPA is actually in there somewhere. I just
    realized that. I don't really know enough about the questioning
    that you are doing here to be--for it to be appropriate for me
    to answer that question. I would have to know more about what--
    --
        Mr. Barton. We will put it in writing.
        Mr. Perciasepe. But I do understand the question and
    certainly we would be willing to respond.
        Mr. Barton. Very briefly, before I recognize Chairman
    Dingell.
        Ms. Jackson. Our canisters are certified for a 20-year
    period. That is based on an early engineering convention. We
    are actually explicitly looking at the 20- to 100-year
    timeframe in terms of the suitability or what kinds of
    requirements would need to be imposed on canisters for a
    facility like this. But that would be part of the regulatory
    requirement so that under whatever the water conditions are at
    the site, that those canisters could withstand that kind of
    environment on the surface.
        Mr. Barton. It is reasonable to expect that within a
    hundred years, within a hundred years, that some Congress and
    some Nuclear Regulatory Commission and some EPA are going to
    have a meeting of the minds on a permanent repository.
        Ms. Jackson. I would hope so, Mr. Chairman.
        Mr. Barton. The gentleman from Michigan for the remaining 5
    minutes.
        Mr. Dingell. Mr. Chairman, thank you. Let me come back to
    this question of the Tucker Act and let me, if you please,
    ladies and gentlemen, address where the thing is at this
    particular time.
        To Mr. Schiffer, the U.S. Court of Claims ruled in one case
    DOE's failure to begin accepting nuclear waste by the 31st of
    January 1998 constitutes breach of contract. Ten utilities have
    complaints with the U.S. Court of Claims alleging breach of
    contract and the fifth amendment, taking in damages totaling
    $8.5 billion. The Justice Department has not yet taken a
    position on whether any damages awarded to these cases would be
    paid for from the nuclear waste fund and is developing internal
    legal memorandum on that question; is that right?
        Mr. Schiffer. Yes, sir.
        Mr. Dingell. Okay. Assuming my understanding of that is
    correct, let me ask you a couple more questions.
        Mr. Schiffer, I assume it is possible for more utilities to
    file cases before the Court of Claims and the total damages
    claimed could significantly exceed the current estimates of
    $8.5 billion; is that correct?
        Mr. Schiffer. That is correct.
        Mr. Dingell. If that is true and you determine the damages
    could be paid from the nuclear waste fund, that could have a
    significant impact on the repository program, couldn't it?
        Mr. Schiffer. I am really not an expert on the programmatic
    impacts. There seems to be some--seems to be logic to that
    question, sir.
        Mr. Dingell. Mr. Barrett, you want to comment?
        Mr. Barrett. Yes, sir; that certainly would have long-term
    impacts on the repository program.
        Mr. Dingell. This would hit the taxpayer pretty hard? It
    would also raise questions about the completion date for the
    long-term nuclear repository; isn't that so?
        Mr. Barrett. Yes, sir.
        Mr. Dingell. The next question: Has the Department of
    Justice or the Department of Energy taken a position on whether
    the Court of Claims' ruling that we have been discussing on
    page 4 of your testimony held DOE had breached its duty to
    begin accepting waste on January 31, 1998, as controlling for
    other cases before that court?
        Mr. Schiffer. We see differences in the sets of cases. The
    rulings that we spoke of, the early rulings, the October
    rulings, dealt with cases where the reactors were shut down and
    so there were no--there was no ongoing payment of fees. Under
    those circumstances, the court found that the cases couldn't be
    remanded back to the agency to work out some sort of equitable
    contractual adjustment.
        Mr. Dingell. All of those lawsuits have a large potential
    liability to the taxpayers; isn't that right?
        Mr. Schiffer. That is correct.
        Mr. Dingell. Now, with regard to the Nuclear Waste Policy
    Act of judicial decisions and pending litigation--this, then,
    is for Mr. Barrett. Mr. Barrett, on November 30, 1998, the
    Department issued an RTQ on the Supreme Court's decision not to
    review cases on DOE's contractual duties to utilities. It
    indicated that while the Court ruling was not a surprise, ``The
    Department is concerned, however, about the potential adverse
    impact of the ruling on the program's ability to develop a
    permanent solution for the management of the Nation's
    radioactive waste.''
        Now, question, Mr. Barrett: I assume this is referring to
    the potential drain which actual damage awards might place on
    the nuclear waste fund; is that correct?
        Mr. Barrett. Correct; and the appropriations process.
        Mr. Dingell. Okay. Have you attempted to quantify the
    impact?
        Mr. Barrett. It is very uncertain until this plays out, as
    Justice stated.
        Mr. Dingell. Clearly not good.
        Mr. Barrett. It is not good.
        Mr. Dingell. What impact could this have on the repository
    program?
        Mr. Barrett. It is possible in the extreme cases that there
    would not be sufficient cash-flow for us to complete the
    scientific work that we would like to do on a repository.
        Mr. Dingell. Which means then there is a shift for the
    financing of that from the fund to the general revenues of the
    Treasury; isn't that right?
        Mr. Barrett. It becomes very complicated, but someone is
    going to have to pay.
        Mr. Dingell. Now, I know the Department does go through an
    annual audit of its operations. I assume this kind of continued
    liability is taken into account in that exercise. Is that true?
        Mr. Barrett. Yes, sir, it is.
        Mr. Dingell. This occurs, then, much like the 10(k)
    statements in private corporations' filings for the SEC; is
    that right?
        Mr. Barrett. That is correct. We have an independent audit.
        Mr. Dingell. Are the potential costs of litigation
    mentioned in your audits?
        Mr. Barrett. Yes, we have just received, working with our
    independent auditor, their input which will be part of our
    financial statement for the program, which will be part of our
    report to Congress that will be furnished to you this summer.
    We have just recently received that.
        Mr. Dingell. Can you give us any preliminary guesstimates
    as to what those numbers might be?
        Mr. Barrett. Yes, I can. What they have done is, following
    normal accounting practices, they have discussed the legal
    liability, and working with our lawyers on that, they have put
    in an estimate of $500 million which they acknowledge there are
    claims up to $45 billion or more. But that is the normal,
    customary accounting where they go at the low side.
        Mr. Dingell. Somewhere between $500 million and $45 billion
    is the liability that is calculated at this particular and
    rather uncertain time; is that right?
        Mr. Barrett. That is what the independent auditors have
    placed in the report.
        Mr. Dingell. Is there any reason to believe that it could
    not be larger?
        Mr. Barrett. There are claims. It could be larger.
        Mr. Dingell. Thank you.
        Mr. Chairman, I thank you for your courtesy.
        Mr. Barton. Thank you, Congressman Dingell.
        The Chair would recognize Congressman Hall for 5 minutes.
        Mr. Hall. Mr. Chairman, I would just like to ask the panel,
    how many on the panel oppose H.R. 45?
        Mr. Barrett. The administration opposes it. Secretary
    Richardson opposes it.
        Mr. Barton. The record shows the Department of Energy is
    opposing and the Environmental Protection Agency has raised
    their hands in opposition.
        Mr. Hall. How many support it?
        Mr. Barton. We have more hands up, but they all represent
    the Nuclear Regulatory Commission.
        Mr. Hall. Maybe this is the time to voice-vote it.
        Mr. Cohon. Congressman Hall, may we have the record show
    that the Technical Review Board abstained.
        Mr. Barton. And the Department of Justice abstained, I
    think.
        Mr. Schiffer. I heard the gentleman say correctly that the
    administration opposes it, and so I didn't see the need to.
        Mr. Barton. I would assume, even within the Clinton
    administration, there can be disagreement among agencies. I may
    be wrong on that.
        Mr. Hall. Not safely.
        Mr. Barton. Not safely.
        Mr. Hall. For those who oppose it, I think I would ask you
    to give us what it would take to make it more palatable to you,
    because I hear a chairman here crying out for bipartisan
    support and to pass a bill that we don't have to go through the
    rigmarole of trying to override.
        We do need a bill. And, Mr. Chairman, I would like
    unanimous consent to place a further statement in the record
    just after Mr. Markey's testimony. I had waited for him to come
    back. I wanted him to be here when I said what I said.
        Mr. Barton. You are going to put a written statement in the
    record?
        Mr. Hall. No, I want to put an oral statement in the
    record. Just what I say, I want it to go in the record there.
        Mr. Barton. You are going to say it, but you want it placed
    in the record right after----
        Mr. Hall. Right after Congressman Markey, yes.
        Mr. Barton. I have never had that kind of a request.
        Mr. Hall. We have erased tapes. Been doing that at the
    White House.
        Mr. Barton. The Chair is going to temporarily rule without
    objection, but we want to let our counsel check with the
    Parliamentarians and make sure that that is within the
    precedents. But if it doesn't violate a precedent of the
    committee, we will certainly do that.
        Mr. Hall. I just want to point out that Mr. Markey is very
    intelligent, very capable. He certainly expresses himself. He
    is entertaining. I am very fond of him. He is a friend of mine.
    We just don't vote alike, hardly ever.
        But, in case my granddaughter should read this record in
    20, 25 years, I want for them to know that there are two sides
    to the nuclear thrust and that there are those of us, like me,
    who would probably give every county commissioner a nuclear
    plant in their precinct if they really asked for it and we
    could afford it, and there are those like Mr. Markey--I
    understand, believe and respect him for his position--that are
    opposed to nuclear energy in any shape, form or fashion.
        I would point out that energy is the cause of war or lack
    of energy is the cause of war. No question that the Japanese
    went south into Malaysia for energy when we forced them into
    World War II. No question that Hitler went into the Ploesti oil
    fields to get benzene for his tanks and his airplanes.
        If we don't solve the energy problem, then we have nothing
    to expect. We sent 500,000 kids over to a desert, not really to
    support the people from Kuwait, but to keep a despot from
    getting control of all the energy, half the energy in the
    world.
        I would just like for the record to reflect that there is a
    difference of opinion, although we have one more articulate
    than others on the committee, that there are those of us who
    believe that nuclear energy as an alternate source is an
    absolute necessity.
        I say that because 10 or 15 years ago--and there are those
    here who remember--Mr. Markey had an amendment that would have
    killed the nuclear thrust in this country. There wouldn't have
    been another nuclear plant if his motion had passed. I
    respected him for it. He handled it well. He almost passed it.
    It failed because the vote was a tie. That is how close we came
    to losing the nuclear thrust.
        I just wanted that in the record, Mr. Chairman, for future
    generations to read when they read this, and others to read it,
    to know that there are some of us that are as unreasonable
    maybe on one side as we think the others are on the other side.
        But I guess--and I would like to see the fact that you all
    are divided in this thrust, but please give us not what is
    wrong with it, but how we can correct it. And I think we can
    get a bill through and might get a bill through that the
    President would sign.
        And we certainly want our friend Bill Richardson to come
    over here, and if he has the pretty sole authority, or as the
    President indicated, we surely want to talk to him and visit
    with him.
        Yes, Ms. Jackson.
        Ms. Jackson. The Nuclear Regulatory Commission does support
    the bill, and we have gone on record to say that. There are
    some changes that we would like to see incorporated into the
    bill, and that is part of our written submission to this
    committee.
        Mr. Hall. That is good, and we have that, and that will be
    in the record.
        I yield back my time, Mr. Chairman. Thank you.
        Mr. Barton. The gentleman's statement will definitely be in
    the record, and we will check with the counsel for both sides
    and the Parliamentarian, and as I indicated in my ruling, if it
    can be placed in the record immediately after the distinguished
    gentleman from Massachusetts, it will be.
        But it will certainly be in the record, and if possible, it
    will be in at the place requested by the gentleman from Texas.
        Mr. Hall. You can put it in both places if you want to, Mr.
    Chairman.
        Mr. Barton. That is another plan.
        The gentleman from Illinois is recognized for what we hope
    will be the last 5 minutes of questions for this panel.
        Mr. Shimkus. Thank you, Mr. Chairman. Again, I just want to
    reiterate the viability versus the suitability and using the
    terminology, the right terminology at the right time. At the
    end of our last round of discussions, we were interchanging
    those words again. That just confuses a poor old country boy
    like Mr. Hall or myself.
        I am going to continue to scrutinize the document on the
    viability, and I think that is something that we should
    continue to pursue; and there is some information on the
    groundwater question that I asked before that I think directs
    what the DOE has said, the groundwater considerations make this
    a viable option. It is on page 20, in essence, as I read those
    statements.
        A question for Mr. Barrett; again, this could have been
    asked earlier. The schedule in the assessment shows DOE will be
    ready to make a site recommendation to the President in the
    year 2001. Is it your understanding that Secretary Richardson
    supports this schedule and intends to meet it?
        Mr. Barrett. Yes, sir.
        Mr. Shimkus. And then for yourself and Mr. Cohon, this will
    be my final question. In our next panel we will have Ms.
    Claybrook. She, in her written testimony, declares that this
    viability assessment provides conclusive evidence that Yucca
    Mountain should be disqualified. Do you agree that that is a
    true statement?
        Mr. Barrett. I do not agree. The Secretary did not agree.
        Mr. Shimkus. Mr. Cohon?
        Mr. Cohon. The Nuclear Waste Technical Review Board does
    not agree with that. We believe that Yucca Mountain merits
    further study as the site for a potential permanent repository
    for high-level nuclear waste.
        Mr. Shimkus. We will give Ms. Claybrook a chance to defend
    herself in the next panel.
        Thank you, Mr. Chairman, very much.
        Mr. Barton. Thank you, Congressman Shimkus.
        There will be written questions for each of you, or at
    least the agency's representative, to reply to; and as I
    indicated to the gentleman from the EPA, we would like your
    answers to be expeditiously returned because there is a very
    high probability that we are going to hold a markup on an
    amended version of H.R. 45 within the very near future.
        Thank you for your attendance and you are excused.
        As soon as the previous panel exits the room, we are going
    to hear from our third panel. We have today the Honorable LeRoy
    Koppendrayer, who is Commissioner of the Minnesota Public
    Utilities Commission. He is representing the Nuclear Waste
    Strategy Coalition.
        We have the Honorable John Strand, who is Chairman of the
    Michigan Public Service Commission. He is representing the
    National Association of Regulatory Utility Commissioners.
        We have Mr. David Joos, who is the President and CEO of
    Consumers Energy in Jackson, Michigan, and he is representing
    the Nuclear Energy Institute.
        We have Mr. Richard Abdoo, who is Chairman and CEO of
    Wisconsin Electric Power, representing Wisconsin Electric
    Power.
        And we have Ms. Joan Claybrook, who is the President of
    Public Citizen, and she is obviously here representing that
    distinguished public advocacy group.
        We are going to start with you, Mr. Koppendrayer. Your
    entire statement is in the record, and we would ask that you
    summarize it in 5 minutes.

    STATEMENTS OF HON. LEROY KOPPENDRAYER, COMMISSIONER, MINNESOTA
      PUBLIC UTILITIES COMMISSION, ON BEHALF OF THE NUCLEAR WASTE
      STRATEGY COALITION; HON. JOHN G. STRAND, CHAIRMAN, MICHIGAN
         PUBLIC SERVICE COMMISSION, ON BEHALF OF THE NATIONAL
    ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS; DAVID W. JOOS,
     PRESIDENT AND CEO, CONSUMERS ENERGY, ON BEHALF OF THE NUCLEAR
    ENERGY INSTITUTE; RICHARD A. ABDOO, CHAIRMAN AND CEO, WISCONSIN
     ELECTRIC POWER COMPANY; AND JOAN CLAYBROOK, PRESIDENT, PUBLIC
                                CITIZEN

        Mr. Koppendrayer. Thank you.
        Mr. Barton. Put the microphone close to you, so that the
    recording clerk can hear.
        Mr. Koppendrayer. Thank you, Chairman Barton and members of
    the committee. I can honestly say after serving four terms in
    the State legislature that I really appreciate your sitting
    through testimony. I know it is like----
        Mr. Barton. We love it. We just eat this up.
        Mr. Koppendrayer. You always love this. The Nuclear Waste
    Strategy Coalition is an ad hoc group of State regulators,
    State attorneys general and utilities representing 41 members
    in 23 States. The coalition seeks the safe, effective and
    timely central storage and disposal of civilian waste from
    nuclear power plants.
        The Nuclear Waste Policy Act of 1999, H.R. 45, before you
    will provide a much-needed comprehensive reform of America's
    civilian high-level radioactive waste disposal program. The
    Department of Energy defaulted over 1 year ago, as we have
    heard discussed in the earlier part of the day, on its
    contracts to begin removing nuclear waste from the power
    plants. Tons of high-level waste are now stranded at 73 sites
    in 34 States by the Department of Energy's failure to begin
    removing it last winter, as it promised in statute and
    contract.
        Americans already have paid the money that we have been
    discussing, the $15 billion, into the Federal fund for nuclear
    waste disposal services. We are not getting that service. We
    continue to pay at a rate of $70,000 an hour, that is, the
    electric bill's portion, that is going into this fund.
        Because DOE missed its performance deadline, there is
    threatened, also as discussed, a $40 billion cost. These are
    costs of further delay. As Mr. Barrett pointed out, the U.S.
    Court of Claims has found the Federal Government liable for
    these costs. That same court explicitly, we understand,
    prohibited diverting the money from the nuclear waste fund to
    pay for these costs. With each passing day, the cost of delay
    mounts and continued delay will drain the U.S. Treasury of tens
    of billions of dollars. So let's confront some of the excuses
    for not moving the waste. The Federal Government's obligation,
    the ability and the authority to move and store and dispose of
    the waste has frequently been misrepresented.
        In addition, the delaying of central storage and disposal
    in Nevada has wrongly been portrayed as stopping the storage of
    nuclear waste when, instead, it launches a massive, expensive
    building program to store the waste, not in one site but in 73
    sites in 34 States.
        To date, the Department of Energy's civilian nuclear waste
    program has produced only progress reports, and progress
    reports, including viability reports, do not--the American
    people do not want to pay any longer for just reports. We have
    paid to have high-level radioactive waste removed from the
    power plants beginning January 31, 1998. DOE is not fulfilling
    its obligation when it misses these deadlines. Progress reports
    do not substitute for actual performance.
        The Federal court decision and records have consistently
    found that DOE is obligated, able and authorized to begin
    removing the spent nuclear fuel from power plants for storage
    and disposal. Ongoing shipment and storage of spent nuclear
    fuel from 41 foreign countries, the Navy, and research reactors
    have demonstrated DOE's existing capability to transport and
    centrally store nuclear waste. DOE has also stated for the
    record that it is physically able to transport and store spent
    nuclear fuel and other high-level waste.
        During the past 35 years, the Federal Government has
    averaged 68 noncommercial spent fuel shipments per year.
    Through the year 2010, the Federal Government has committed to
    another 3,000-plus of these noncommercial shipments. The
    technology, the facilities, the managerial expertise and the
    experience are already in place and being used to transport
    safely.
        The Nuclear Waste Technical Review Board, as we heard from
    earlier, has also acknowledged that it is equally safe to
    centrally store nuclear waste and to transport waste to that
    site. It is to store nuclear waste at the plant sites. I will
    try and summarize, if that is my bell.
        Mr. Barton. That is your bell.
        Mr. Koppendrayer. In summary, we just have six points that
    we want to emphasize on behalf of ratepayers. That is, No. 1,
    begin waste removal; release the ratepayers' money for the
    intended purpose and no other purpose; provide a central
    temporary storage facility; and, four, continue a permanent
    disposal program; facilitate the transportation of that waste;
    and cap the nuclear waste fund fee at one-tenth of one cent per
    kilowatt hour.
        Thank you, Mr. Chair, and I stand for questions.
        [The prepared statement of LeRoy Koppendrayer follows:]
       Prepared Statement of LeRoy Koppendrayer, Commissioner, Minnesota
      Public Utilities Commission on Behalf of the Nuclear Waste Strategy
                                   Coalition
                                  introduction
        Chairman Barton, members of the Subcommittee, I appreciate this
    opportunity to present testimony on behalf of the Nuclear Waste
    Strategy Coalition (NWSC). The Nuclear Waste Strategy Coalition is an
    ad hoc group of State utility regulators, State attorneys general, and
    utilities representing 41 member organizations in 24 states. The
    Coalition seeks safe, cost-effective, and timely central storage and
    disposal of civilian high-level waste from nuclear power plants. The
    Nuclear Waste Policy Act of 1999 (H.R. 45) before you will provide much
    needed, comprehensive reform of America's civilian, high-level
    radioactive waste disposal program.
        The Department of Energy (DOE) defaulted over one year ago on its
    contracts to begin removing nuclear waste from power plants. Americans
    have already paid over $15 billion for nuclear waste disposal services
    we are not getting. We continue to pay at a rate of $70,000 every hour.
    Tons of high-level radioactive waste are now stranded at 73 sites in 34
    states by the Department of Energy's failure to begin removing it last
    winter as promised in statute and contract. Because of this missed
    deadline an additional $40 billion to $80 billion in costs are
    threatened. Clearly, it is time to act.
        Missed deadlines and further delay are unconscionable. Americans
    expect the federal government to take actions that best protects us and
    avoids squandering tens of billions of dollars of our money. After
    sixteen years and a deadline that DOE promises to miss by at least 12
    years, the time to fix this program is way past due.
                              confronting excuses
        The federal government's obligation, ability, and authority to
    provide transportation and central storage and disposal of civilian
    high-level radioactive waste has frequently been misrepresented. In
    addition, the delaying of central storage and disposal in Nevada has
    wrongly been portrayed as stopping the storage of nuclear waste, when
    instead it launches a massive, and vastly expensive building program to
    store nuclear waste not at one site, but at 73 sites in 34 states. I
    urge subcommittee members to remember that the goal is to physically
    move, store and dispose of this radioactive waste in the best way we
    are now able and not be distracted by those seeking endless delay.
    The U.S. Department of Energy
        To date, the Department of Energy's civilian nuclear waste program
    has produced only progress reports. Progress reports, including the
    Viability Report, are not what Americans have paid for. We have paid to
    have high-level radioactive waste removed from power plants beginning
    by January 31, 1998. We have paid for the safe, centralized temporary
    storage and permanent disposal of nuclear waste from power plants. DOE
    is not fulfilling this obligation when it misses deadlines. Progress
    reports do not substitute for actual performance.
        In its 1996 Indiana Michigan decision, the U.S. Court of Appeals
    affirmed that DOE was obligated to start moving waste on January 31,
    1998, ``without qualification or condition.'' DOE ignored the Court
    prompting 46 state agencies and 36 utilities to again seek relief from
    the Court. In 1997, the Court observed:
            ``After issuing our decision in Indiana Michigan, we would have
            expected that the Department would proceed as if it had just
            been told that it had an unconditional obligation to take
            nuclear materials by the January 31, 1998, deadline. Not so.
            Quite to the contrary . . .''
        As a result, the Court issued a writ of mandamus to the DOE on
    November 14, 1997. In that order, the Court explicitly found DOE
    authorized to begin providing temporary central storage of spent
    nuclear fuel from civilian power plants.
            ``Given DOE's repeated attempts to excuse its delay . . . we .
            . . issue a writ of mandamus to correct the Department's
            misapprehension of our prior ruling. . . . [S]pecifically we
            preclude DOE from concluding that its delay is unavoidable on
            the ground that it has not yet prepared a permanent repository
            or that it has no authority to provide storage in the
            interim.'' [Emphasis added.]

            United States Court of Appeals decision in Northern States
            Power Company, et al., No. 97-1064 consolidated with Nos. 97-
            1065, 97-1370, and 97-1398.
        In late 1998 decisions, the D.C. Circuit of the U.S. Court of
    Claims again affirmed DOE's obligation. The Court of Claims then
    extended earlier decisions by the Court of Appeals to recognize federal
    government liability for costs mounting as a result of DOE's missed
    deadline to remove waste for central storage and disposal. In testimony
    presented before the 104th and 105th Congresses these costs have been
    estimated to be at least $40 billion to $80 billion. These are the
    costs of delay.
        The cost of delay is separate, and in addition to, the cost of
    providing central storage and disposal of civilian high-level
    radioactive waste. Electric ratepayers pay one tenth of a cent per
    kilowatt hour of nuclear electricity into the Nuclear Waste Fund for
    central storage and disposal of nuclear waste. Ratepayer payments into
    the Nuclear Waste Fund are to pay for the work of disposal. In
    contrast, damages awarded by the U.S. Court of Claims are for the costs
    of delaying that very work. These costs are rightfully paid from the
    U.S. Treasury's Judgments Fund, and not from the Nuclear Waste Fund.
        Using money from the Nuclear Waste Fund to pay damages resulting
    from DOE's missed deadline to perform would divert these funds from
    their intended purpose, violating the original statute under which they
    were collected. Since ratepayers would be assessed the costs of Nuclear
    Waste Fund expenses, using the fund to pay damages would amount to
    ratepayers paying themselves damages.
        Beyond DOE's obligation to perform, DOE has also stated for the
    record that it is physically able to transport and store spent nuclear
    fuel and other high-level radioactive waste. During the past 35 years,
    the federal government has averaged 68 non-commercial spent fuel
    shipments per year. Through the year 2010, the federal government has
    committed to make 3,819 shipments (382 per year) of such non-commercial
    high-level nuclear waste. The technology, facilities, managerial
    expertise, and experience are already in place and being used to do so
    safely. DOE has publicly affirmed this on numerous occasions including
    in the Court record.
              The Court: [Y]our brief, . . . on page 6 . . . seems to imply
            that it would be possible to establish an interim storage
            program . . .
              Mr. Bryson [Representing DOE]: Well, we don't think we have
            the statutory authority to do that. I mean physically----
              The Court: Forgetting a moment the statutory authority, it's
            physically possible, isn't it?
              Mr. Bryson [Representing DOE]: It certainly is, Your Honor, .
            . .

            See Transcript of Proceedings in the United States Court of
            Appeals for the District of Columbia Circuit, Northern States
            Power Company, et al. v. Department of Energy and the United
            States of America, No. 97-1064, page 29, lines 4 to 19,
            Washington, D.C., September 25, 1997.
        Ongoing shipment, and storage, of spent nuclear fuel from 41
    foreign countries, the Navy, and research reactors demonstrate DOE's
    existing capability to transport, and centrally store U.S. civilian
    waste.
        DOE is also legally authorized to act. DOE earlier successfully
    argued in the 10th Circuit of the U.S. Court of Appeals that it is
    authorized to transport and store civilian waste from power plants.
    When asked by the D.C. Circuit of the U.S. Court of Appeals if it
    wanted to surrender its authority recognized by the 10th Circuit Court
    of Appeals, DOE declined.
        DOE is obligated, able, and authorized to provide the nuclear waste
    storage and disposal services the American people have paid for. It is
    intolerable that in missing its deadline DOE claims that at best it
    will perform 12 years late; and then only if everything goes perfectly.
    We believe that H.R. 45 is the best prospect to remedy this vexing
    problem.
    The U.S. Nuclear Waste Technical Review Board
        The Nuclear Waste Technical Review Board (NWTRB) was established to
    provide engineering and scientific input and oversight to the federal
    nuclear waste program. Although seldom stated, the NWTRB has
    acknowledged it is equally safe to centrally store nuclear waste, and
    to transport waste to that site, as it is to store nuclear waste at
    plant sites. A DOE-sponsored national assembly of State emergency
    management officials agreed noting that non-commercial high-level
    nuclear waste is moving safely and being centrally stored, and we
    should do the same for commercial waste.
        Responsible stewardship of public money dictates that given two
    safe options, we should take the one that avoids squandering tens of
    billions of dollars. There is every scientific and economic basis to
    proceed with nuclear waste transportation, central storage and
    disposal. The NWTRB's research presents no evidence favoring leaving
    waste stranded at power plants.
    Environmental Protection Administration (EPA).
        We challenge EPA to tell us, if not the Nevada atomic test site,
    where? The alternative cannot be ``nowhere'' because nuclear waste
    already exists. It has to be somewhere. The alternative to centralized
    temporary storage is not the absence of temporary storage. Rather it is
    stranding high-level radioactive at 73 power plants in 34 states--every
    one on a major body of water and near population centers.
        Does EPA really want to compare every power plant site in America
    to the Nevada Test Site regarding its environmental desirability for
    long term nuclear waste storage? Does EPA really think that
    environmental protection means indefinitely stranding nuclear waste in
    34 states on the shores of our lakes, rivers, and oceans? Is this the
    best we can do as a nation?
        Americans are right to expect the federal government to move waste
    to a central location because that best protects public health, safety,
    and the environment and saves tens of billions of dollars. High-level
    nuclear waste is best stored, and disposed of, in a place that is
    remote, arid, and was once used to explode atomic bombs--a place like
    the Nevada atomic test site. Even if something completely unexpected
    precludes using that site for permanent disposal, it remains the best
    site for long-term storage and best protects the environment while a
    permanent disposal facility is completed.
                          its time to get the job done
        Let me now turn to the 6 points the Nuclear Waste Strategy
    Coalition believes are critical to reforming the U.S. civilian
    radioactive waste program. To overcome past problems of the program's
    lack of public confidence, cost escalation, schedule lapses, and the
    risk of diverting ratepayer money from the Nuclear Waste Fund, 1999
    legislation reforming the Nuclear Waste Policy Act must:

    1. Begin waste removal--The federal government is unconditionally
            obligated to begin removing radioactive waste from the 73
            temporary storage sites now at nuclear electric power plants in
            34 states. It is not sufficient to simply take title or
            possession of the waste. The federal government must begin to
            remove waste from power plants across the nation and provide
            centralized temporary storage while the permanent disposal
            facility is being completed.
    2. Release ratepayer's money for intended purpose--The American public
            is right to expect that the ratepayer-funded Nuclear Waste Fund
            will be used to address nuclear waste and that Congress will
            appropriate the necessary money from the fund to do so. In the
            next year alone, electric ratepayers will pay over $600 million
            into the Nuclear Waste Fund. The United States government
            promised to use these funds to begin removing high-level
            radioactive waste and to provide for its permanent disposal.
          Over $15 billion, including interest, has been paid into the
            Nuclear Waste Fund and nearly $8 billion remain held in trust
            by the federal government. Recognizing the complications of the
            federal budget scoring process, it is simply unimaginable to
            many that the 106th Congress would take ratepayer's money in
            the Nuclear Waste Fund for other purposes. This money was
            collected to provide safe, timely, and cost-effective storage
            and permanent disposal of civilian high-level radioactive
            waste. The American people are right to expect it will be
            released for this purpose, not kept to provide accounting
            camouflage for other federal spending. Use of the Nuclear Waste
            Fund for other purposes would be an unjust and fraudulent tax
            on the American electricity consumer.
    3. Provide a central temporary storage facility--A temporary,
            centralized radioactive waste facility must be authorized,
            sited in Nevada, and funded to provide the United States with
            timely, safe, and cost-effective interim storage of radioactive
            waste. Congress must establish an aggressive waste acceptance
            schedule for storing waste in the interim facility. This
            facility must augment and facilitate our nation's permanent
            radioactive waste disposal program, not replace it.
    4. Continue a permanent disposal program--Characterization of the Yucca
            Mountain, Nevada site must continue. State governments,
            utilities, and the public have acted in reliance on the federal
            government's promise that waste would be removed from power
            plant sites beginning in 1998 and permanent disposal provided.
            To ensure that deep geologic disposal remains an essential
            program element, within budget constraints, the program must be
            redesigned to improve management structure, reflect program
            priorities and provide incentives for efficiency.
    5. Facilitate transportation--Authorize the designation, construction
            and operation of facilities to transport civilian high-level
            radioactive waste to a central temporary storage site and to a
            permanent disposal facility. Provide necessary transportation
            corridors and rights-of-way to ensure access to the designated
            temporary storage facility and the permanent disposal facility.
    6. Cap the Nuclear Waste Fund fee--Cap the Nuclear Waste Fund payments
            at the present one-tenth of a cent per kilowatt-hour to ensure
            that the program costs resulting from past performance problems
            of the federal government are not shifted to electricity
            consumers.
        These six elements are needed in final legislation reforming the
    Nuclear Waste Policy Act to protect continuing consumer investment in
    the Nuclear Waste Fund that already exceeds $15 billion, and to ensure
    that the federal government fulfills its obligations for the interim
    storage and permanent disposal of civilian high-level radioactive
    waste. Civilian high-level radioactive waste now stored at 73 power
    plants in 34 states must be addressed. We believe legislation in 1999
    is necessary and the time to enact it is now.
                                   conclusion
        The Nuclear Waste Strategy Coalition cannot emphasize enough the
    need to enact H.R. 45. We must transport, and centrally store and
    dispose of civilian high-level radioactive waste. It is extremely
    important that we not be distracted or delayed by the those who would
    substitute ever lasting dialogue and ``process'' for actually doing the
    work that American's have not only paid for--but trusted would be done.
        The 106th Congress faces an ever more compelling call to action.
    The first anniversary of DOE's missed deadline has come and gone. The
    federal courts three times affirmed DOE's unequivocal obligation to
    have started removing nuclear waste from power plants by January 31,
    1998. The U.S. Supreme Court chose not to even consider DOE's request
    for absolution from its obligations. Now, the U.S. Court of Claims has
    determined federal liability for continuing delay and is determining
    the amount of damages that will be paid from the U.S. Treasury.
        I recognize that there are powerful special interests fighting to
    preserve the status quo--to do nothing. Some of these special interests
    suggest that we are asking you to rush to judgment. If the 16 years in
    which we have wrestled with this dilemma is not enough time to see this
    program needs fixing, no amount of time will be enough.
        Given the present status of America's civilian high-level
    radioactive waste program, comprehensive reform legislation such as
    H.R. 45 is our best hope. DOE's nuclear waste program, while making
    minor progress at great cost, is not meeting the needs of the nation.
    Decisive action is needed now. Congress must not miss this opportunity
    to enact H.R. 45.

        Mr. Barton. Thank you, sir.
        We will now hear from the Honorable John Strand. Again,
    your statement is in the record in its entirety. We ask you to
    summarize it in 5 minutes.

                    STATEMENT OF HON. JOHN G. STRAND

        Mr. Strand. Thank you very much, Chairman Barton and
    members of the Energy and Power Subcommittee. In particular, I
    would also like to thank Michigan's representative, Fred Upton,
    for his continuing leadership on this very important consumer
    issue. The National Association of Regulatory Utility
    Commissioners, NARUC, is a quasi-governmental, nonprofit
    organization of the governmental agencies engaged in the
    regulation of public utilities in all 50 States and the
    District of Columbia. More specifically, NARUC contains the
    State officials charged with the duty of regulating the retail
    rates and services of electric and gas utilities operating
    within their respective jurisdictions.
        These officials have the obligation under State law to
    assure the establishment and maintenance of such energy utility
    services as may be required by the public convenience and
    necessity, and to ensure that such services are provided at
    rates and conditions which are just, reasonable and
    nondiscriminatory for all consumers. Essentially, we represent
    ratepayers.
        I will suggest to you that we have had substantial problems
    with the Federal nuclear waste program. Basically, that program
    has been a source of deep concern and enormous frustration to
    our Nation's utility ratepayers and regulators for many years.
        We were checking the record before I testified here, and I
    found that as far back as 1986, a predecessor of mine at the
    MPSC testified on behalf of NARUC that we were at that time
    losing confidence in DOE's ability to manage the program. We
    called for a number of program reforms that, of course, have
    never materialized.
        Consumers of electricity have two primary concerns. First,
    huge amounts of money have been collected from utility
    ratepayers to pay for the waste program--approximately $600
    million a year, more than $15 billion since 1983, including
    interest, yet no waste has been moved from civilian reactor
    sites.
        Second, the effective management and permanent disposal of
    nuclear waste are essential to minimize the life cycle cost of
    the existing nuclear plants that generate approximately 20
    percent of the electricity used in the U.S. As delays continue,
    these costs grow in scope and in magnitude, in some cases
    denying consumers low-cost nuclear resources.
        I will tell you, this doesn't make economic sense,
    particularly at a time when we as a nation are trying to move
    the electric utility industry into a competitive, market-based
    era. The need for congressional action to provide comprehensive
    reform and guidance is absolutely essential and is overdue.
        I will give you one unfortunately not too funny anecdote
    that a number of States have suggested, only half jokingly,
    because we have noticed that the DOE has been accepting, moving
    and storing nuclear waste from 41 foreign countries that maybe
    the answer for the States is to secede from the union and file
    to have DOE accept and remove our waste as a foreign country.
        We are not necessarily advocating that, but we do think it
    cries out for the fact that Federal action is needed.
        I want to comment first of all on the viability assessment,
    a slight comment on basically what has happened as far as the
    court decisions and then conclude.
        The viability assessment, in our opinion, is just another
    string of DOE progress reports. We are glad at least that the
    dates haven't been pushed back, but in reality we don't need
    more progress reports; we need the waste moved. This is what
    the American people have paid for. We certainly hope that after
    15 years of extensive research, we have the ability to at least
    get some waste moved.
        Second, as far as the recent Federal court decisions, we
    believe the implication of the court decisions makes basically
    our options quite clear. It is now up to Congress to fix this
    program. In the litigation swirling around this program, we
    have reached a judicial deadlock because of the fact that the
    cases brought by the States and utilities against the DOE in
    the U.S. Court of Appeals basically found that the DOE is
    legally obligated to begin taking the waste, but the act
    doesn't specifically require performance by the DOE. This is a
    deadlock, and we believe one that can only be corrected by
    congressional action.
        I will suggest to you unfortunately that further court
    actions will be expensive, slow and reach incomplete
    conclusions just as the most recent U.S. Court of Appeals cases
    have demonstrated.
        Let me conclude. As my comments on behalf of NARUC
    indicate, the need for the expeditious passage of H.R. 45 is
    imperative. Today we are still without the fundamental policy
    framework necessary to ensure that the Federal Government
    accepts and disposes of nuclear waste in a timely and efficient
    manner.
        Let me give one warning. I will tell you that even if H.R.
    45 is passed, I will suggest in and of itself that may not be
    enough to achieve the goals of the Nation's nuclear waste
    management and disposal program. After all, if you read the
    1982 NWPA, it is perfectly clear as to the intent and
    requirements on the DOE. Passage into law of H.R. 45 will give
    the program the tools it needs to complete the job, but the
    program still must be administered; and I will suggest to you
    that substantial congressional oversight will absolutely be
    necessary.
        In conclusion, NARUC commends the sponsors of H.R. 45 and
    supports the bill. The Nation's electricity consumers deserve
    to see real progress in waste disposal. We must not again fail
    them.
        Thank you very much for the opportunity to address the
    subcommittee.
        [The prepared statement of John G. Strand follows:]
     Prepared Statement of John Strand, Chairman, Michigan Public Service
                                   Commission
        Mr. Chairman and Members of the Committee: Good Morning. I am John
    Strand, Chairman of the Michigan Public Service Commission and Chairman
    of the Subcommittee on Nuclear Issues--Waste Disposal of the National
    Association of Regulatory Utility Commissioners, commonly known as
    NARUC. I am here today to testify on behalf of NARUC. I am grateful for
    the opportunity to provide NARUC's views on H.R. 45, the Nuclear Waste
    Policy Act of 1999, and on the specific issues raised by the Committee
    in its letter of invitation, including our views on the United States
    Department of Energy's (DOE) December 1998 viability assessment, the
    DOE's site characterization efforts at Yucca Mountain, and the
    implications of recent Federal court decisions on the DOE's obligations
    under the Nuclear Waste Policy Act of 1982.
        NARUC is a quasi-governmental nonprofit organization founded in
    1889. Within its membership are the governmental bodies of the fifty
    States engaged in the economic and safety regulation of carriers and
    utilities. The mission of NARUC is to serve the public interest by
    seeking to improve the quality and effectiveness of public regulation
    in America. More specifically, NARUC contains the State officials
    charged with the duty of regulating the retail rates and services of
    electric and gas utilities operating within their respective
    jurisdictions. These officials have the obligation under State law to
    assure the establishment and maintenance of such energy utility
    services as may be required by the public convenience and necessity,
    and to ensure that such services are provided at rates and conditions
    which are just, reasonable, and nondiscriminatory for all consumers.
        With respect to the Federal Nuclear Waste program, no other
    organization representing the public interest has been involved with a
    fair resolution of this critical issue longer than NARUC. In 1983,
    shortly after the passage of the 1982 Act, NARUC established policies
    and procedures on the high-level nuclear waste program with the goal of
    protecting the interests of our Nation's consumers. Sixteen years
    later, we are still at it.
    The Consumer Interest and Concern in the Nation's Nuclear Waste Program
        Let me begin by outlining the interests and concerns of the
    consumers of electricity and the membership of NARUC regarding the
    DOE's Civilian Radioactive Waste Management program. This program has
    been a source of deep concern and enormous frustration to our nation's
    utility ratepayers and regulators for many years for two primary
    reasons. Our first concern is the huge amounts of money that have been
    collected from utility ratepayers to pay for the waste program despite
    the fact that no waste has yet been moved from civilian reactor sites.
    Nationally, utility ratepayers pay approximately $600 million per year
    into the Nuclear Waste Fund, only a small portion of which,
    approximately fifteen cents on the dollar, is actually appropriated for
    the program. This Fund, which is supported solely by the Nation's
    electricity consumers, has accumulated more than $15 billion since
    1983. State regulators have a compelling interest in the cost-
    effectiveness and success of the program because of our fiduciary
    responsibilities to the utility ratepayers. Let me put it another way--
    utility ratepayers have paid for the storage of nuclear waste at
    nuclear power plants through the rates paid to cover the capital costs
    of planned on-site storage. Ratepayers have also paid for the Federal
    nuclear waste management and disposal program run by the DOE through
    the 1 mil per kilowatt hour fee they pay to their electric utilities on
    the generation of electricity from nuclear generation stations. These
    are the fees that go directly from the utilities into the Nuclear Waste
    Fund to the tune of $15 billion. Now utility ratepayers are being asked
    to pay a third time--for expanded on-site storage as a result of the
    DOE's failure to meet the deadlines prescribed in the Nuclear Waste
    Policy Act.
        The second reason for our concern also relates to consumer costs.
    The effective management and permanent disposal of nuclear waste are
    essential to minimize the life cycle costs of the existing nuclear
    plants that generate about 20 percent of the electricity used in the
    United States. Cost increases for expanding on-site storage, reactor
    decommissioning and centralized disposal of nuclear wastes increases
    the costs of nuclear energy overall, which in turn, can have a
    significant adverse affect on energy costs to consumers. This problem
    is becoming particularly acute as the nation heads into an era of
    competitive markets in the electric utility industry. Moreover, nuclear
    generation provides significant air emission benefits that will be
    jeopardized if the unresolved waste problem renders these plants
    uneconomic.
        Since 1984, the NARUC has passed twenty-four policy resolutions on
    the nuclear waste program, including eleven that specifically encourage
    legislative revisions to the program. Today, we are still without the
    fundamental policy framework necessary to ensure that the Federal
    Government accepts and disposes of nuclear wastes in a timely and
    efficient manner. The NARUC commends the sponsors of H.R. 45 for
    undertaking the task of developing a workable legislative solution, and
    we welcome the efforts of this Committee to address the concerns of the
    millions of U.S. ratepayers that financially support this program.
    NARUC's Review of the Department of Energy's Viability Assessment
        The DOE has been studying a site at Yucca Mountain, Nevada, for
    more than 15 years to determine whether it is a suitable place to build
    a geologic repository for the nation's high-level radioactive waste.
    The viability assessment, released in December 1998 presents the
    results of DOE's study to date. While the assessment is generally
    framed by the DOE as a technical document, it nonetheless concludes
    ``that Yucca mountain remains a promising site for a geologic
    repository and that work should proceed to support a decision in 2001
    on whether to recommend the site to the President for development as a
    repository.'' In its concluding observations, the DOE indicates that
    its 15 years of extensive research has validated the expectations of
    the scientists that first suggested that remote desert regions of the
    Southwest would be well-suited for a geologic repository. The
    assessment further suggests that engineered barriers and natural
    barriers can be expected to reduce radiation exposures to future
    populations, even after as much as 300,000 years, to natural background
    levels that exist today.
        Our review of the assessment leads us to conclude that the
    provisions in Section 204 of H.R. 45, which authorize and direct the
    Secretary of Energy to ``design, construct, and operate a facility for
    the interim storage of spent nuclear fuel and high-level radioactive
    waste at the interim storage facility site'' are necessary and
    appropriate. In our ``Resolution Regarding Guiding Principles for
    Legislative Changes to the Nuclear Waste Policy Act,'' (attached
    hereto) NARUC called for the DOE to begin to take possession and remove
    high-level radioactive waste and spent nuclear fuel to meet its (now
    passed) January 31, 1998 deadline for complying with its legal
    obligation as soon as possible. The resolution further urged the U.S.
    Congress to designate the location of one above-ground, centralized,
    interim storage facility for spent nuclear fuel and that such site not
    be limited by the location or licensing of a permanent repository.
        In sum, the viability assessment leads us to believe it is time to
    get on with siting, designing, and constructing an interim storage
    facility as soon as possible.
    DOE's Characterization of the Yucca Mountain Site
        The DOE's characterization of the Yucca Mountain site has been
    marked by delay. While we are encouraged by the recent progress made by
    the DOE in its Yucca Mountain site characterization efforts, NARUC has
    long been of the opinion that the repeated delays in meeting the
    program deadlines are rooted in the Department's inefficient management
    and problems in controlling its contractors. In 1986, a commissioner
    from Michigan first testified before Congress on NARUC's behalf to warn
    of contractor control problems in the program, and lack of procedures
    to control excess program costs. And it's not only State regulators
    that have noticed. The General Accounting Office has consistently taken
    DOE to task for its lack of contractor control.
        Our policy on nuclear waste legislation calls for fundamental
    program improvement. As the attached policy resolution states, NARUC
    urges Congress to improve the efficiency of the licensing process of
    the high-level nuclear waste repository without compromising health,
    safety, and environmental factors. Congress should encourage greater
    private sector participation in implementing certain aspects of the
    Federal program, such as management and implementation of the
    multipurpose container system, construction and operation of the
    centralized interim storage facility and implementation of the
    transportation system.
        We are even willing to advocate fundamental changes to this
    program. If the DOE is unable to meet its deadlines, despite new
    legislation and financial assistance, Congress should consider removing
    the authority and responsibility for implementing the Civilian
    Radioactive Waste Management Program from the DOE and locate it in a
    new, single purpose federally chartered corporation. This point is
    still relevant today. If after the passage of legislation such as H.R.
    45, the DOE continues to miss the deadlines imposed under law, then
    Congress should consider taking the steps necessary to complete this
    important project by using a new, more efficient organization.
    Implications of Federal Court Decisions on DOE's Obligations Under the
            NWPA
        The implications of the recent Federal court decisions are quite
    clear: It is now up to Congress to fix to this program. In the
    litigation swirling around this program, we have reached a judicial
    deadlock. In terms of the costs of the program, failure to enact this
    legislation could result in the Federal government paying huge damages
    to the utilities, damages that could run well into billions of dollars.
    Allow me to explain.
        In 1995, the States and the utilities were compelled to file suit
    against the DOE by the Department's final interpretation of the 1982
    Act, in which the DOE concluded that it had no obligation to accept
    nuclear wastes from civilian reactors, absent a final repository. Given
    the Department's dreadful record in its site characterization efforts,
    this position by the DOE was entirely unacceptable. In the first case
    that was decided by the U.S. Court of Appeals for the D.C. Circuit
    (Indiana Michigan Power Co., et al v Dept. of Energy, 88 F. 3d 1272
    (D.C.Cir. 1996), the Court of Appeals concluded that the Nuclear Waste
    Policy Act of 1982 ``creates an obligation in DOE, reciprocal to the
    utility's obligation to pay, to start disposing of the SNF [Spent
    Nuclear Fuel] no later than January 31, 1998'' and that the statutory
    obligation to commence disposing of SNF no later than January 31, 1998,
    is ``without qualification or condition.''
        The same Court, in November 1997 in Northern States Power Co., et
    al v Dept. of Energy, 128 F.3d 754 (D.C.Cir. 1997) reaffirmed DOE's
    unconditional obligation to begin to dispose of spent nuclear fuel by
    the statutory and contractual deadline, and found that utility and
    State petitioners had a clear right to relief, that DOE had a clear
    duty to act, and that petitioners should pursue ``potentially adequate
    remedies'' under the Standard Contract to address DOE's avoidable
    delay. In February 1998, both State and utility parties in Northern
    States filed motions with the Court of Appeals to enforce the Court's
    decisions in Indiana Michigan and Northern States, due to DOE's failure
    to undertake any action to comply with its obligations. In an
    unpublished order issued in May 1998, the Court of Appeals determined
    that despite its earlier holding that DOE has an unconditional
    obligation under the Act to begin acceptance on January 31, 1998, the
    Act ``does not itself require performance.'' Accordingly, the Court
    declined ``to requir[e] the DOE to perform under the contract.'' The
    Court did not, however, overturn its earlier holding that in construing
    its obligation under the contract to dispose of SNF, DOE could not
    claim that its failure to perform is an unavoidable, non-compensable
    delay under the standard contract.
        In November of last year, the Supreme Court refused to hear two
    competing appeals of the Court of Appeals'' decision. In State of
    Michigan v. Dept. of Energy (No. 98-225), the Court refused to hear an
    appeal filed by the States that the Court of Appeals should have
    provided additional remedies for DOE's failure to meet the statutory
    deadline, including an order to begin waste acceptance. In United
    States v. Northern States Power Co., (No. 98-384), the Court refused to
    hear DOE's appeal of the Court of Appeals'' ruling that its failure to
    comply was inexcusable. By the Supreme Court's election, without
    comment, to not take up these cases, the final Court of Appeals rulings
    stand.
        The short summary of these court decisions is this: DOE is legally
    obligated to begin taking waste by a now expired deadline, but the Act
    itself doesn't require specific performance by DOE. The practical
    result at this time is a deadlock that can only be corrected by
    Congressional action.
        In the recent Court of Federal Claims decision in the Yankee Atomic
    case, the Court determined that the DOE is liable for monetary damages
    for its breach of its waste disposal contracts. The only question that
    remains is the determination of the amount of damages. At least eleven
    other Court of Claims actions are still pending. If each of these cases
    results in determinations that the DOE is liable, and the plaintiffs
    are able to prove their estimates of damages, then the DOE could be
    liable for several billion dollars. NARUC's position on the effect
    payments of such damages will have on program funding and whether any
    such payments should come out of the Nuclear Waste Fund is outlined in
    the attached policy resolution: DOE must be prohibited from using the
    Nuclear Waste Fund or prospective fee collections for paying costs or
    damages incurred by utilities, ratepayers, and by State and local
    governments, as a result of DOE's failure to comply with its
    obligations. Rather, any costs or damages should be paid out of a
    Federal judgement fund.
        To put it bluntly, it would be an outrage if DOE were able to pay
    for its damages out of the Nuclear Waste Fund. In effect, it would be
    requiring the ratepayers to pay for DOE's failures. Moreover, the
    statute suggests that the Nuclear Waste Fund cannot be used for
    anything other storage and disposal activities and not the payment of
    damages. See, 42 U.S.C. Sec. 10222(d))
    The Need for Legislation
        I think all of our comments made here today, as well as all of the
    legal actions and delaying activities concerning this program leading
    to this moment, point directly toward the need for legislation to 1)
    accelerate acceptance, 2) strengthen the repository program, and 3)
    protect the consumers by assuring fee revenues are spent on the
    program.
        The ratepayers have upheld their end of the deal by paying for all
    of the on-site storage of civilian nuclear waste and by paying more
    than $15 billion into the Nuclear Waste Fund. Without passage of this
    legislation, the ratepayers payments into the Fund will likely continue
    to rise, the on-site storage costs will continue to rise, and the DOE
    will continue a program of non-performance marked by a strategy of
    continuing delays.
        Nor can we turn to the courts for answers. Court actions are
    expensive, slow and incomplete, while Congressional action is one shot
    and comprehensive. Only legislation by the U.S. Congress will provide
    the greatest likelihood of achieving a successful resolution to this
    matter.
    Conclusion
        In conclusion, it is imperative that Congress enact H.R. 45 as
    expeditiously as possible. State regulators who labor to protect
    consumers from economic exploitation stand ready to work with the
    Congress, the Department of Energy and all other affected stakeholders
    to refocus our waste disposal policies. The Nation's electricity
    consumers deserve to see progress in a waste disposal program in which
    they are already hugely invested. At this very late date, we must not
    once again fail them.
        Thank you for your time and attention. I would be pleased to answer
    any questions you might have.

        Mr. Barton. Thank you.
        We would now like to hear from Mr. David Joos. Your
    statement is in the record in its entirety. You are recognized
    for 5 minutes to summarize.

                       STATEMENT OF DAVID W. JOOS

        Mr. Joos. Thank you Mr. Chairman, ranking member Hall and
    distinguished members of the subcommittee. I am President and
    Chief Executive Officer of Consumers Energy. We serve 1.6
    million customers in lower Michigan. We are the 12th largest
    electric utility in the United States.
        My company owns two nuclear plants located on the shores of
    Lake Michigan. Our Palisades plant continues to operate today.
    Our Big Rock Point plant was retired in 1997 at which time it
    was the longest running nuclear power plant in the United
    States. Today, I am testifying on behalf of the Nuclear Energy
    Institute, the policy organization for our industry, and
    representing the industry's view on H.R. 45.
        Let me say up front we are strongly in support of passage
    promptly of H.R. 45. I want to thank you, Mr. Chairman,
    Congressman Hall and the members of the subcommittee for your
    tireless efforts with regard to this issue and the other 14
    subcommittee members who have cosponsored this bill thus far.
        As is also true in Michigan, America's nuclear plants
    supply about 20 percent of the electricity consumed in this
    country and are critical to meeting reliability needs. And
    further, they do it without contributing to nitrous oxide,
    greenhouse gases or other air emissions.
        Unfortunately, our inability to ship used nuclear fuel from
    these facilities is a severe threat to continued operation.
    Seventeen years have gone by since passage of the Nuclear Waste
    Policy Act of 1982 and the performance of the Energy Department
    in failing to meet its obligation to accept and store nuclear
    waste is dismal, irresponsible and in violation of the law.
        During that time customers of nuclear utilities have
    contributed some $15 billion to the nuclear waste fund, nearly
    two-thirds of a billion by Michigan customers alone. Due to
    program mismanagement and diversion of over half of those funds
    that have been contributed for other purposes, we have little
    to show for it.
        Most significantly, the DOE has failed to meet its
    obligation to begin accepting fuel in January 1998 and now says
    it will be at least 11 years longer before it can start to do
    so. As a result, nuclear plants across this country are choking
    on their waste. As of the end of last year, one-fourth of the
    Nation's nuclear power plants, 109 in total, had run out of
    original-design onsite fuel storage.
        Consumers Energy's plants are among them. At our Palisades
    plant we have already invested $20 million in dry cask storage
    at that site. We are currently storing 125 metric tons of fuel
    in 13 canisters a little over 400 feet from Lake Michigan.
    Without this legislation, we will have to store four times that
    much by the year 2010 and will incur at least $50 million in
    damages over the next 5 years. And but for our inability to
    ship spent nuclear fuel from our Big Rock Point plant site, we
    could have returned that site to a green- field condition by
    the year 2003. Instead, we are spending millions to store fuel
    there and cannot complete that decommissioning project.
        We are better off than many. Others don't have options due
    to site limitations or local concerns and are facing sure
    premature shutdown without the ability to move this nuclear
    waste off of these sites.
        Clearly, this situation is intolerable and must be
    addressed. We believe that H.R. 45 offers an integrated
    solution to spent fuel management and we are strongly
    supportive of it. In addition to addressing transportation and
    interim storage and permanent storage, it provides adequate
    program life-cycle funding and establishes a designed radiation
    standard for the storage facility that is consistent with U.S.
    international scientific organizations and the State of
    Nevada's own standard.
        I might add that it allows the NRC, the Nuclear Regulatory
    Commission, to modify that standard as it finds necessary based
    on its scientific findings. We are in strong support of having
    the Nuclear Regulatory Commission have that authority.
        Despite passage of nuclear waste legislation by both the
    House and the Senate last year, the administration has
    continued to oppose that legislation, last year pointing to the
    need to complete the Yucca Mountain viability assessment prior
    to moving ahead. As you know, that assessment has now been
    complete and now they are apparently pointing to the need to
    complete the suitability assessment before we move ahead.
        We certainly are concerned about the continuing moving
    target as to when these decisions get made. That assessment
    that was released in December, in the words of Secretary
    Richardson, says that there are no show-stoppers, and we think
    now is the time to move ahead.
        On behalf of the nuclear energy industry, I urge quick
    passage.
        I may just comment that I think that the committee ought to
    pass this legislation, the full House ought to pass the
    legislation, and we should urge the administration to move very
    quickly into a dialog so that we can move this along on a
    bipartisan fashion.
        In summary, Mr. Chairman, one thing is clear. We have
    nuclear waste, we have to store that nuclear waste safely. The
    real question is, do we store it in 35 States in excess of 70
    sites, in locations like our two sites on the shores of Lake
    Michigan, or do we store it in one central location, in the
    desert in Nevada? I think the choice is clear.
        Thank you very much.
        [The prepared statement of David W. Joos follows:]
      Prepared Statement of David W. Joos, President and Chief Executive
      Officer, Consumers Energy on Behalf of the Nuclear Energy Institute
        Mr. Chairman, Ranking Member Hall and distinguished members of the
    subcommittee, my name is David Joos. I am president and chief executive
    officer of Consumers Energy. My company owns two nuclear power plants
    that border Lake Michigan. The Palisades unit is 16 miles north of St.
    Joseph, Michigan. The second, Big Rock Point near Charlevoix, Michigan,
    was the nation's longest running nuclear power plant until its
    retirement in 1997.
        Today, I am testifying on behalf of the Nuclear Energy Institute
    and representing the nuclear energy industry's position on H.R. 45, the
    Nuclear Waste Policy Act of 1999.
        I want to express my gratitude to you, Mr. Chairman, Congressmen
    Hall, Dingell, Upton and Towns and the rest of the subcommittee for
    your unflagging commitment to resolving the nuclear waste issue. I also
    would like to thank the 14 subcommittee members who thus far have
    joined 74 other House members in co-sponsoring H.R. 45.\1\
    ---------------------------------------------------------------------------
        \1\ The number of H.R. 45 cosponsors was current as of February 9,
    1999.
    ---------------------------------------------------------------------------
        This broad bipartisan support is a clear signal to the federal
    government that it must fulfill its statutory obligation to accept used
    nuclear fuel and must adopt an integrated plan to manage the nation's
    nuclear byproducts.
        Nuclear power plants supply nearly 20 percent of America's
    electricity and are the nation's largest source of emission-free
    energy--an important distinction for policymakers who recognize the
    unmistakable nexus between energy and environmental policy. In
    Congress, and indeed across the United States, there is growing
    appreciation for the industry's vast experience with more than 2,000
    reactor years of operation and growing awareness that the industry
    offers a unique opportunity to meet energy production and clean air
    needs of the 21st century.
        Without nuclear energy, the United States will find it impossible
    to meet increasingly stringent U.S. clean air regulations as well as
    international carbon dioxide reduction goals. The nation's nuclear
    power plants provide clean air benefits while producing electricity at
    a competitive price--with production costs that are a fraction of a
    cent higher than coal-fired electricity and more cost-effective than
    natural gas, solar or wind power. A necessary component to ensure
    nuclear energy's continued benefits is the federal acceptance and
    disposal of used nuclear fuel.
    Summary
        Mr. Chairman, since 1981, the Energy Department has been siting and
    developing an underground geologic repository for the disposal of used
    nuclear fuel. In recent years, however, the agency has failed to
    advance an important aspect of the program--the acceptance of used
    fuel. A little more than a year ago, the Energy Department was
    scheduled to start accepting used fuel from nuclear power plants and
    defense facilities at 78 locations in 35 states. The agency missed its
    deadline in violation of its clear statutory duty under the Nuclear
    Waste Policy Act of 1982. The law required disposal at a single,
    federally monitored location.
        Instead of beginning receipt of this fuel, the Energy Department
    has deflected and attempted to deny its legal responsibilities based on
    avoidable delays in the development of a repository. This is
    irresponsible conduct unfitting of the federal government. It breaks
    the spirit of the law by reinforcing the agency's reluctance to treat
    nuclear waste disposal as a high priority. And it certainly violates
    the letter of the law.
        In September 1998, a shift in policy seemed imminent. As part of
    events leading to the U.S. Senate confirmation of Energy Secretary Bill
    Richardson, President Clinton wrote a letter to Sen. Frank Murkowski,
    R-Alaska, chairman of the Senate Energy and Natural Resources
    Committee. The letter stated that Mr. Richardson would have the
    ``portfolio'' to represent the Administration in working with Congress
    to resolve the disposal problem. This marked a reversal in course from
    Secretary Richardson's predecessors.
        Based on the president's clearly stated commitment that Secretary
    Richardson would actively engage Congress in a dialogue on nuclear
    waste disposal issues, the prospects for putting this program on a
    clear path to success seemed promising. In fact, about three months
    later, the Energy Department released a report ordered by Congress
    supporting the continued scientific study of Yucca Mountain, Nevada, as
    the site for a permanent repository for used nuclear fuel. The report,
    known as the Yucca Mountain viability assessment, ``reveals that no
    showstoppers have been identified to date,'' Secretary Richardson said
    on Dec. 18 when he released the compilation of years of scientific and
    technical assessments of the site.
        Unfortunately, however, there has been no real commitment from the
    White House or the Energy Department to meet this obligation to
    electricity consumers and all citizens.
        In the past, the Energy Department has excused its delays as the
    inevitable price of bureaucracy. A British economist wrote that while
    bureaucracies boast the appearance of silence, they violate the true
    principles of business. So it is with the Energy Department, where
    unmet deadlines and legal liabilities may spell financial disaster--
    both for the industry and for the electricity customer.
        Today, the consequences of continued delay are severe. They can be
    measured first by the financial liability posed to the federal
    government--in essence, taxpayers. Importantly, consumers of nuclear-
    generated electricity--not taxpayers--have paid for managing used
    nuclear fuel and will continue to do so during the life of the program.
    Second, delay will impact economic operations of U.S. nuclear plants,
    which serve as linchpins in the administration's clean air and carbon
    abatement strategies. As this committee knows well, the impact of
    protracted delay in this program will unduly strain nuclear facilities
    as they adapt to a competitive electricity market.
        First, storing used nuclear fuel indefinitely at nuclear power
    plant sites drives up on-site storage costs that commercial plants and
    their electricity customers were never intended to bear. Utilities and
    state attorneys general, finding no other recourse, turned to the
    courts to hold the Energy Department accountable for its 1998 fuel
    acceptance obligation. Electricity consumers have committed $15
    billion, including interest, to the Nuclear Waste Fund--a federal trust
    which has never operated in a fashion to fully fund the program.
        Customers who count on electricity generated at our Palisades
    nuclear power plant and other nuclear energy facilities in Michigan
    have committed $678 million for these government services. In Texas,
    Mr. Barton, the customer commitment is $323 million; in New Jersey, Mr.
    Pallone, $543 million; and in Florida, Mr. Stearns, Mr. Deutsch and Mr.
    Bilirakis, $648 million.
        Yet over the years, the federal government has diverted $7.8
    billion from the waste fund for deficit reduction. This continued
    erosion of resources should be stopped, especially in view of the
    program's need for increased levels of funding as it enters a
    construction phase for central storage. Only Congress can stop the
    federal government's use of funds in this fashion and ensure that this
    project has the financial means to move forward. Without passage of
    H.R. 45, Congress will have a difficult time making funds available
    within the budget caps to meet program needs.
        Without use of a temporary central storage facility, consumers of
    nuclear-generated electricity will be forced to pay for DOE's
    negligence once more. They could suffer as much as $56 billion in
    damages for the Energy Department's default on accepting used fuel and
    other costs associated with indefinite storage at multiple nuclear
    power plant sites. Ratepayers will continue to pay into the Nuclear
    Waste Fund for reasonable program costs. But if they pay a second,
    multi-billion dollar bill solely because of federal government
    inaction, it would be tantamount to fraud.
        The second consequence of continued fuel acceptance delays is the
    uncertainty it creates for companies like Consumers Energy that cannot
    adequately plan for future plant operation without a date certain for
    federal used fuel acceptance. Otherwise, the high-level waste program
    and its associated expenses aggravate our ability to make prudent
    decisions in a competitive market. At Big Rock Point, for instance, 58
    metric tons of nuclear fuel awaits federal management. The longer fuel
    sits at the retired plant, the greater the delay for decommissioning.
    Without legislative action, the process could take 20 to 30 years. With
    H.R. 45, however, the plant would be decommissioned in half the time
    and returned to a natural, greenfield state for other uses.
        The Palisades plant faces different challenges. The plant's spent
    fuel pool has reached capacity, prompting Palisades to store 125 metric
    tons of used fuel in 13 stainless steel containers at the site. Each
    time we refuel the reactor, the amount of used fuel grows. In 1998,
    when the Energy Department should have started fuel acceptance,
    Palisades' dry storage would have been limited to 120 metric tons. By
    2010--the date the Energy Department expects to complete a permanent
    repository--the amount of used fuel requiring dry storage at Palisades
    would grow to 600 metric tons.
        The disposition of used fuel at the Palisades site poses a serious
    economic impact on plant operations. The timing, the manner in which
    additional dry storage would be undertaken and the amount the site
    would be reimbursed for additional storage resulting from government
    inaction will dictate whether the plant operates in the future. Any
    risk to Palisades' continued operation would reverberate among all of
    Michigan electricity customers who receive their electricity from the
    nuclear power plant. These uncertainties also threaten the tax base of
    Covert Township, where Palisades is located, as well as the job
    security of the plant's 500 employees. Mr. Chairman, you can see that
    the passage of H.R. 45 is absolutely necessary to provide reliable
    federal fuel acceptance dates and maintain economic stability for our
    region and many others that rely on the nation's 103 nuclear power
    plants.
        Some industry critics argue that used nuclear fuel is best left
    alone, that it should continue to be stored at sites across the
    country. That would be a mistake. Building more dry fuel storage
    facilities is not feasible at many locations because of geographic
    constraints, zoning restrictions or political resistance. For example,
    the Indian Point units in New York are hampered by siting restrictions.
    The site's limited size and restricted equipment handling capability
    render it unfavorable for dry storage.
        Mr. Chairman, getting the Energy Department's attention has been
    incredibly frustrating for me, for my industry and for many states and
    state agencies who have taken active roles in trying to hold the
    federal government to its fuel acceptance deadline. Every year, we are
    confronted with a new delay that pushes nuclear fuel disposal further
    into the future even though the silence indicates promise for fuel
    storage today.
        As I mentioned earlier, the agency's repeated delays have forced 61
    state officials, state agencies and municipalities to go to court over
    this matter, seeking legal decisions that force DOE to take waste and
    to pay utilities to continue storing used fuel past the 1998 federal
    collection date.
        Federal judges consistently have ruled that the Energy Department
    must comply with nuclear utility contracts that require federal fuel
    acceptance in exchange for funds utility customers have been paying for
    16 years. In three rulings in 1998, the U.S. Court of Federal Claims
    ruled that the Energy Department is liable for breaching its contract
    with utilities and failing to accept used nuclear fuel. That court is
    now considering the level of damages that should be awarded to Yankee
    Atomic Power Co., Maine Yankee and Connecticut Yankee for the Energy
    Department's breach of contract. Yankee Atomic alone is seeking $70
    million. Seven other utilities have filed individual suits seeking
    monetary damages. More are expected.
        Mr. Chairman, let me repeat the fact that the industry has been
    presented no alternative to litigation. We always have believed that
    the preferred solution is for the Energy Department to meet its
    obligation to manage used fuel at a central location.
        The Energy Department's waiting game has become much too costly for
    consumers to endure. In the years ahead, it may threaten the economic
    viability of some plants as the energy landscape shifts to a
    competitive marketplace. By passing H.R. 45, this committee has an
    opportunity to end the delays and the drain on consumers. This
    legislation provides a comprehensive management program that integrates
    storage, transportation and disposal so that the government can begin
    fuel acceptance in 2003. Once removed from sites, the fuel would be
    stored temporarily at a central facility until a permanent repository
    is completed in 2010.
        Mr. Chairman, one thing is clear: used fuel will have to be stored
    properly. The question is, does it make more sense to store it in
    dozens of locations across the country--including our two sites on the
    shores of Lake Michigan--or at one location in the Nevada desert?
        Nuclear Regulatory Commission Chairman Shirley Jackson, in
    testimony before the committee last year, endorsed a single disposal
    site as a means to more safely and efficiently monitor used nuclear
    fuel.
        H.R. 45 does more than create certainty for fuel acceptance and
    disposal. The legislation ensures adequate funding through the life of
    the program. And it establishes a 100-millirem radiation standard that
    is consistent with U.S. and international scientific organizations.
    This standard also ensures the same level of public safety as the
    Nevada state radiation protection standard.
        While the Energy Department continues a responsible job of
    collecting scientific data on Yucca Mountain, we have yet to fully
    address the complex political dynamics that surround this issue.
        It still amazes me that the government could put a man on the moon
    in 10 years but that it will take it 28 years to build an underground
    repository for used nuclear fuel.
        In light of DOE's repeated delays, I respectfully urge the
    committee to expedite a used fuel management and disposal program
    through reform legislation--H.R. 45. At the same time, this committee
    should revive the dialogue with the administration so that the two can
    work in partnership to begin waste acceptance.
    The Need for Reform Legislation
        Mr. Chairman, as the preceding discussion indicates, a significant
    shift in the Energy Department's program direction must take place in
    order to achieve used fuel acceptance from the nation's nuclear power
    plants and defense facilities. Only Congress can take the appropriate
    measures to chart a sure course for the near-term receipt and storage
    and ultimate repository disposal of used nuclear fuel.
        The Nuclear Waste Policy Act of 1999, H.R. 45, accomplishes this
    programmatic shift while protecting public health, safety and the
    environment. Mr. Chairman, you and the members of this committee are
    quite familiar with the features of this legislation, which is
    virtually the same as legislation the House of Representatives approved
    307-120 during the 105th Congress. Modifications have been made to the
    program's funding provision to accommodate congressional budget scoring
    rules. With that exception, and a date change for operation of a
    temporary storage facility, the legislation's provisions are similar to
    that of the 1997 legislation. The essential components of H.R. 45
    include:

     Establishing a used nuclear fuel management system, including
            development of a temporary storage facility within Area 25 of
            the Nevada Test Site. The site would safely hold used nuclear
            fuel until the Energy Department completes a permanent
            repository. A temporary storage facility is necessary since the
            Energy Department has stated that the agency will not accept
            used fuel without a disposal or storage facility;
     Establishing a date for operating used fuel storage. Temporary
            storage would begin operation by June 2003. A permanent
            repository is scheduled for January 2010 operation;
     Limiting the size of a temporary storage facility and
            permitting the Energy Department to determine the repository's
            size. A temporary storage facility would be built in two
            stages--10,000 metric tons of uranium (MTU) in the first phase,
            expanded up to 40,000 MTU in the second phase;
     Complying fully with the National Environmental Policy Act
            requirements by establishing clear milestones and schedules for
            preparation of environmental documents, conduct of licensing
            reviews and all other steps involved in siting, design,
            licensing and construction of this central storage facility;
     Establishing a radiation health standard of 100 millirems per
            year for licensing a repository. The standard is consistent
            with Nevada state regulations and international scientific
            recommendations. For example, Nevada's Administrative Code,
            section 459.335, states, ``The total effective dose equivalent
            to any member of the public from [a] licensed and registered
            operation does not exceed 100 millirems per year;''
     Creating a new funding mechanism consisting of a combination
            of a user fee and a mandatory fee, with an average fee to
            electricity consumers of 1 mill per kilowatt-hour until the
            repository opens. During the averaging period, the fee may not
            exceed 1.5 mills/kwh in any given year. After the repository
            opens, the fee is capped at the current rate of 1 mill/kWh;
     Instructing the Energy Department to minimize the use of
            transportation routes through populated areas;
     Providing for transportation planning, training and technical
            assistance to states, emergency responders and labor
            organizations; and
     Providing for land conveyances and benefits for affected
            communities, including payments equal to taxes.
        The legislation also builds upon sound technical and scientific
    assessments that support the siting of a permanent repository for used
    fuel at Yucca Mountain.
        Indeed, the Energy Department's December 1988 report to Congress on
    the viability Yucca Mountain notes that, ``over 15 years, extensive
    research has validated many of the expectations of the scientists who
    first suggested that remote, desert regions of the Southwest are well-
    suited for a geologic repository.''
        Secretary Richardson, in an update to the president about the
    viability assessment, said that scientific and technical work at Yucca
    Mountain should proceed to further the project goal of opening a
    repository in 2010.
    Conclusion
        Nearly 20 percent of the nation's electricity consumers rely on
    nuclear power plants for energy that also preserves our air quality.
    With no harmful emissions, nuclear energy assists the United States in
    meeting federal clean air regulations and international goals to reduce
    carbon dioxide worldwide. No other fuel source helps the nation achieve
    its air preservation goals while offering reliable, competitive
    electricity to customers. And by balancing the nation's energy
    portfolio, nuclear energy provides security from international fuel
    crises.
        For these reasons, and for the security of our state economies,
    Congress must tackle a significant environmental challenge for the 21st
    century--securing federal acceptance of used nuclear fuel and providing
    certainty for its disposal. Without H.R. 45, the federal high-level
    waste program will wend its way through a bureaucratic labyrinth that
    offers no solution. With H.R. 45, the industry and the nation can meet
    all other challenges; energy security, air conservation and competitive
    electric production.
        The visionary leadership of this committee will assure a new level
    of intensity and commitment for this landmark initiative.

        Mr. Shimkus [presiding]. Thank you.
        The next panelist is Mr. Richard Abdoo, Chairman and CEO of
    Wisconsin Electric Power Company. Welcome. You have 5 minutes.

                     STATEMENT OF RICHARD A. ABDOO

        Mr. Abdoo. Thank you, Mr. Chairman and members of the
    subcommittee. My name is Richard Abdoo. I am the Chairman and
    CEO of Wisconsin Electric Power Company, a utility based in
    Milwaukee, Wisconsin, and the owner of the Point Beach Nuclear
    Power Plant. I would like to express my views on the amendments
    to the Nuclear Waste Policy Act embodied in H.R. 45.
        My essential message to you today is to encourage you to
    speed passage of this legislation, as well as to draw your
    attention to the need for short-term action on the national
    nuclear waste issue.
        I am here as a utility executive in the unenviable position
    of being perhaps the first in line to have a safe, efficient,
    fully operational nuclear plant shut down for the lack of a
    storage solution. Time is of the essence, as my company's
    nuclear plant, Point Beach, will exhaust approved onsite
    storage of spent fuel by the year 2004.
        Very simply, we are exploring every available and prudent
    option to either expand onsite storage or ship spent fuel to an
    appropriate site. But if we are not successful, then we will
    face premature shutdown of Point Beach.
        I would like to accomplish three things in my short time
    with you today. I would like to explain why we need enactment
    of this bill as soon as possible, why we need to have
    contingency plans built into H.R. 45 and what the consequences
    are for the customers of Wisconsin Electric and other utilities
    if we are not successful in finding a solution to this national
    concern.
        First, let me point out that the Department of Energy as
    you have heard several times today is more than a year late in
    initiating its responsibility for removing spent fuel from
    commercial nuclear reactors as required by the Nuclear Waste
    Policy Act of 1982. Under that law, utility consumers
    nationally have paid more than $15 billion to the Federal
    Government, and Wisconsin Electric consumers alone have paid
    more than $208 million.
        After more than 17 years, DOE is arguably no closer to
    accepting fuel now than it was back in 1982. H.R. 45 will put
    teeth into the requirement that Congress passed back when the
    Milwaukee Brewers last were World Series contenders. Believe
    me, that is a long time ago.
        Why do we need enactment as soon as possible? To put it
    most bluntly, this is perhaps our last best chance to force the
    Federal Government to live up to its responsibility to accept
    spent nuclear fuel.
        When my company and many others designed our nuclear power
    plants, we did so with the assurance that the Federal
    Government would provide long-term disposal for our spent fuel.
    Needless to say, that has not happened. If I can remember
    correctly, there have been six administrations that have failed
    to live up to this promise. The legislation before you strictly
    and clearly addresses that promise.
        Next, why do we need contingency plans built into H.R. 45?
    As a utility executive, I must constantly prepare contingency
    plans in order to assure uninterrupted power supply to my
    customers. As I will explain in a minute, the Point Beach plant
    is vital to reliability for serving my customers, and I must
    pursue every reasonable option for keeping this plant on-line.
    With the passage of time and the administration's inability to
    meet its responsibility, we find ourselves in the precarious
    position of requiring near-perfect execution of these options
    if we are to avoid shutting down reactors due to a lack of
    spent fuel storage.
        In my own plant's case, we designed spent fuel pools with
    the assumption that the Federal Government would take this
    fuel. But it did not. So we had to obtain approval from the
    State of Wisconsin for onsite dry cask storage. Due to the
    interest in this issue, gaining approval was a 3-year legal
    process.
        We must now seek approval for more casks, even though the
    last time it was assumed that the Federal Government would
    surely have met its responsibility by 1998. But it did not. We
    cannot afford another 3-year process and still make our 2004
    deadline.
        As a second contingency plan, we are renegotiating our
    contract with DOE. The D.C. Circuit Court suggested that
    utilities pursue administrative remedies under their contracts,
    and we are. We have not sued the DOE. We have elected to
    negotiate with them. Those discussions are ongoing and must
    come to completion soon if we are to have a timely contract
    resolution to our problem. But I am not optimistic.
        Additional contingency options can be built into this
    legislation. If there is any slippage in the 2003 spent fuel
    acceptance date in the bill, if there is any further delay in
    the Federal Government's ability to meet this deadline, if
    there is any problem in presenting to the President a bill he
    can sign before the end of this Congress, then we are in danger
    of shutting down not only Point Beach but an increasing number
    of nuclear plants around the country. Therefore, I would ask
    you to consider measures that would clarify DOE's authority to
    provide for additional onsite storage or provide authority to
    DOE for shipping waste to appropriate offsite facilities.
        In summary, Mr. Chairman and members of the committee, let
    me close by encouraging you to move this legislation as quickly
    as possible. We have already moved out of the comfort zone, and
    I feel that we may face a gap between the time we run out of
    onsite storage and the time when the Federal Government is able
    to accept spent fuel at an interim storage facility.
        But do not take my remarks as detracting from H.R. 45. It
    is a good bill and I support it. Thank you very much.
        [The prepared statement of Richard A. Abdoo follows:]
      Prepared Statement of Richard A. Abdoo, Chairman and CEO, Wisconsin
                             Electric Power Company
        Mr. Chairman and Members of the Subcommittee: Thank you for the
    opportunity to appear before you today to present Wisconsin Electric
    Power Company's views on H.R 45, amendments to the Nuclear Waste Policy
    Act of 1982. My essential message to you today is to encourage you to
    speed passage of this legislation but also to draw your attention to
    the need for short-term action on the nuclear waste issue. Addressing
    this problem is key to keeping the Nation's, including my company's,
    nuclear plants operating, which in turn is key to the continued
    reliability of our electric supply, and our ability to achieve air
    quality standards, including meaningful greenhouse gas reductions. The
    challenge is that there may be a gap in time between the point when
    existing on-site storage of spent nuclear fuel is filled to capacity,
    and the time spelled out in H.R. 45 when interim storage or a permanent
    repository would be ready to accept shipment of fuel. I ask that you
    consider options that could be added to H.R. 45 that could fill this
    gap.
    H.R. 45 Should Be Enacted As Soon As Possible
        If there is any major problem with this legislation it is that it
    should have been enacted years ago. H.R. 45 is a good bill. H.R. 1270
    from 1997 was a better bill. H.R. 1020 from 1995 was the best bill--
    because it would have addressed this problem four years ago.
    Unfortunately, due to the Nation's delay in addressing this issue I
    have a growing concern that even the streamlined approach articulated
    in H.R. 45 may not provide relief in time to avoid shutdown of certain
    nuclear power plants. And while I'm speaking today from my own
    company's perspective, you should be aware that given the acceptance
    date, the acceptance rate, and the likely acceptance schedule based on
    DOE's ``Acceptance Priority Ranking'' report, there are a growing
    number of nuclear power plants that may be forced into premature
    shutdown if we do not find a solution to the nuclear waste issue soon.
        My company operates 1000MWe of generation in two units at its Point
    Beach Power Plant. This plant has had one of the industry's best
    performance records for over 25 years. In the last three years we have
    undergone intense scrutiny by the Nuclear Regulatory Commission,
    invested hundreds of millions of dollars to bring our facility up to
    new standards, and emerged with renewed confidence in our ability to
    operate this facility safely and economically. Our licenses run to 2010
    and 2013 respectively. Yet, we are threatened with premature shutdown.
        If legislation would have been enacted four years ago Wisconsin
    Electric would not be confronted with this critical situation. As I
    mentioned earlier, according to the ``Acceptance Priority Ranking''
    report and the timetable in section 508 of H.R. 45, Point Beach is
    scheduled to begin shipment of fuel to an interim facility in the first
    year of acceptance, 2003, as well as in the nine subsequent years of
    acceptance. But even this date, 2003, is not guaranteed by this
    proposal. Section 508 of H.R. 45 would allow the Department of Energy
    to stretch acceptance of spent fuel over a five year period starting in
    2003 which means that all waste could be refused from 2003 to 2007 as
    long as the full five year amount were accepted in 2008. In contrast,
    Point Beach will exhaust approved on-site storage of spent fuel at the
    Point Beach Power Plant by the year 2004, four years before there is an
    absolute date for acceptance of fuel under H.R. 45.
         The Department is over a year late in initiating its
    responsibility for removing spent nuclear fuel from commercial nuclear
    utilities as required by the Nuclear Waste Policy Act (NWPA) of 1982
    and by its contract with each nuclear utility. Under that contract, my
    customers have paid and continue to pay the federal government to take
    title, remove and permanently manage spent nuclear fuel generated from
    my plants. Utility consumers nationally have paid $15 billion to DOE;
    Wisconsin Electric consumers alone have paid more than $208 million.
    And after 17 years, DOE is arguably no closer to accepting fuel than it
    was in 1982.
    Wisconsin Electric Background
        The Wisconsin Electric Power Company is an electric and gas
    investor-owned utility headquartered in Milwaukee, Wisconsin serving
    1.4 million customers with annual revenues of $1.8 billion. Wisconsin
    Electric produces, delivers and sells electric energy in an area of
    about 12,000 square miles in the southeastern, east central and
    northern portions of Wisconsin, and the Upper Peninsula of Michigan.
    The total area's population is about 2.3 million, which includes
    metropolitan Milwaukee. Peak electric demand is about 5,500 megawatts.
    In addition to Point Beach Power Plant which supplies about 25 percent
    of electric demand, we have six coal plants which supply two thirds of
    our demand and the rest is supplied by hydroelectric, natural gas, oil,
    and purchased power.
        Point Beach is a Westinghouse plant with two units of 500 megawatts
    each. Unit 1 began operation in 1970, unit 2 in 1972. Unit 1's license
    will expire in 2010 and unit 2's in 2013. About a quarter of the 121
    fuel assemblies are replaced annually. Each fuel assembly contains 179
    rods. In 1995, Point Beach began loading spent fuel into dry casks on
    the plant property. The Public Service Commission of Wisconsin
    authorized us to load up to 12 which, combined with our spent fuel
    pool, provides enough storage for operation of the plant through 2004.
        The legal history of spent fuel at Point Beach has put us in a
    unique position within the industry. Wisconsin Electric was not part of
    an original lawsuit against the Department of Energy seeking to enforce
    the federal government's obligation (under the Nuclear Waste Policy Act
    of 1982) to begin removing spent nuclear fuel from investor owned
    utilities by January 31, 1998. But, we became a joint petitioner when
    DOE failed to meet the January 31, 1998 acceptance date and did not
    provide an adequate remedy. Subsequently, the District of Columbia
    Circuit Court of Appeals declined to directly order DOE to take spent
    fuel, suggesting that utilities pursue remedies under the contract. At
    that point,Wisconsin Electric did not join with other investor-owned
    utilities in continued litigation and instead is trying to pursue a
    path of negotiation with DOE in the hopes of crafting an administrative
    solution under terms of the contract with the Department. So far, our
    efforts have not been successful.
    The Threat to Reliability and the Environment
        Point Beach is a vital part of the electricity supply in the upper
    Midwest, and the key to keeping Point Beach on line is storage of spent
    fuel. If we cannot expand on-site storage and are unable to ship waste
    to an appropriate site then we must shut down our plant by 2004.
    Shutting down 1000 MWe of generating capacity will strain the
    reliability of our system since Point Beach supplies approximately 25
    percent of the power used by our customers. And beyond the Wisconsin
    Electric system, any significant reduction in electric generation
    capacity will exacerbate an already tight supply situation in our
    region of the country. As you know, the Midwest has experienced two
    consecutive summers of reliability concerns.
        Because Point Beach does not emit any greenhouse gases or other
    atmospheric emissions, its premature shutdown would also be a
    significant blow to efforts to improve air quality. If we were forced
    to shut down Point Beach we would likely replace the capacity with a
    clean power source, such as combined cycle natural gas. The increased
    greenhouse gas emissions alone would be very significant. Substituting
    this natural gas capacity for Point Beach would increase carbon dioxide
    emissions by 3.5 million tons per year in addition to increased
    nitrogen oxide and other atmospheric emissions!
        My company's ability to commit to meaningful greenhouse gas
    reductions hinges upon continued operation of these emission free
    facilities in Wisconsin. While I recognize the controversy surrounding
    policy proposals to address potential global climate change, Wisconsin
    Electric is committed to addressing the global warming issue. Wisconsin
    Electric was one of the first investor owned utilities to establish in
    a developing nation a tree planting program for carbon sequestration,
    and one of the first to retrofit an aging coal plant with new natural
    gas technology as a means of reducing carbon emissions. These two
    international programs comprised two of the seven original projects of
    the United States Initiative on Joint Implementation Program. Wisconsin
    Electric has the largest green pricing program of its kind in the
    country which offers customers a choice in choosing green energy
    alternatives. I have participated in the Vice President's climate
    change consultation meetings although I hasten to point out that
    Wisconsin Electric does not believe that the Kyoto Protocol is the best
    approach to a global climate change policy. But, as I noted earlier,
    the ability of Wisconsin Electric to commit to any meaningful
    greenhouse gas reductions is fatally undercut if we are forced to shut
    down Point Beach prematurely.
    Contingency Planning
        We are exploring all reasonable options to keep the Point Beach
    plant operating by obtaining sufficient storage capacity for the spent
    nuclear fuel, and we are in a situation where we must explore all
    options in the hopes that one of them will succeed. This legislation is
    obviously a key part of our goal to keep the plant operating. Under
    this bill, the Federal government would be ready to accept spent fuel
    in June 30, 2003. On that date, shipments would begin according to the
    schedule in section 508 of H.R. 45. But, we can not absolutely rely on
    this date. In addition to the five-year stretching concern I expressed
    earlier, my confidence in DOE's ability to meet this schedule is not
    high. DOE was obligated to begin taking spent fuel in 1998 and had 17
    years and $15 billion to prepare. It is common knowledge that DOE
    failed to meet this schedule.
        Even with this date and shipment schedule mandated in H.R. 45,
    Wisconsin Electric may still have to expand on-site storage in order to
    have enough space to keep the plant running, and we are exploring all
    other potential options. We plan to initiate a proceeding with the
    state of Wisconsin to seek approval for additional dry casks for
    storage of spent fuel. But, such requests put tremendous pressure on
    state and local officials--the last request led to more than three
    years of legal proceedings--and in any case nuclear waste is a Federal
    problem. We are negotiating with the Department of Energy to resolve
    our contract dispute in a way that will allow us to expand storage or
    ship spent fuel. We are monitoring and assessing private storage
    options. We are putting every effort into making one of these options
    work for us. Under any one of these options everything must occur on
    time and according to plan in order for us to be able to operate until
    the June 30, 2003 acceptance date in the bill.
        However, if none of these options succeed, if there is any slippage
    in the 2003 date, if we do not get a positive response from the state,
    or if the Department of Energy exercises its ability under section 508
    of this bill to amend the acceptance schedule, then we may be forced to
    shut down Point Beach. And other utilities that are in a similar
    situation may be forced to take similar action. This is why I think you
    should consider measures that could fill a gap between the time that
    plants run out of space and when the Federal Government actually
    accepts our spent fuel. Given the history of this program I think it is
    only prudent to consider measures for dealing with the waste problem
    should another Federal mandate to accept nuclear waste not be achieved
    precisely on schedule.
        I greatly appreciate the prompt attention that the U.S. House of
    Representatives has repeatedly given to the nuclear waste issue and
    that you are giving today. However, as a utility executive I must
    constantly prepare contingency plans in order to keep the lights on and
    I do not have enough confidence to tell my customers and state
    regulators that the Federal government is definitely going to deal with
    the nuclear waste problem this year. If it appears there will be no
    solution and we will have to shut down Point Beach, I must begin
    preparations soon to plan for replacement power.
        While I must make contingency plans, I also urge you to consider
    adding measures to this bill that could form a national contingency
    plan should we need one. These steps could include clarifying authority
    for the Department of Energy to provide additional on-site storage or
    providing authority to DOE to ship spent fuel to off-site storage
    facilities. For those plants facing imminent shutdown, another step
    could be to create a system by which nuclear utilities could trade
    positions in the shipment queue so that plants that are necessary for
    reliability reasons might be able to trade places with plants that
    higher up in the queue.
    Conclusion
        Mr. Chairman, I do not want my remarks here to detract from the
    desireability of H.R. 45--it's a good bill and I support it. Nor do I
    want to suggest that a long-term storage solution is not critical--I
    believe it is. I am heartened by the progress in the viability
    assessment of Yucca Mountain and am pleased that the assessment
    ``reveals no showstoppers.'' I am here as a utility executive in the
    unenviable position of being perhaps the first in line to have a safe,
    efficient, and fully operational nuclear plant shut down for the lack
    of a storage solution. H.R. 45, as good as it is, needs something more
    to provide me the assurance I need that my plant can continue to
    operate after 2004. This plant is crucial to my being able to supply
    energy reliably to my customers, and do my part for reliability in my
    region. This plant is a key element in any commitment I can make to
    reduce greenhouse gas emissions in a meaningful way. So, today I ask
    your consideration for adding to H.R. 45 measures that can bridge the
    gap between when the DOE interim storage facility actually accepts my
    spent fuel and when my storage options are exhausted. Thank you.

        Mr. Stearns [presiding]. Thank you.
        Ms. Joan Claybrook. Yes.

                      STATEMENT OF JOAN CLAYBROOK

        Ms. Claybrook. I thank you, Mr. Chairman. I appreciate the
    opportunity to testify here today.
        I am Joan Claybrook, I am President of Public Citizen, a
    national public interest organization with 150,000 members
    across the country. I am testifying here today also on behalf
    of the Sierra Club and the Nuclear Information and Resource
    Service. I am testifying on behalf of all of them.
        For over 20 years our organizations have worked to shape a
    responsible public policy for the disposition of nuclear waste,
    an intractable program with no known solution, and no country
    in the world has found an answer to the long-term isolation of
    these highly toxic wastes. The centralized interim storage of
    highly irradiated nuclear fuel that is mandated by this bill,
    H.R. 45, would be a mistake, in our view, for health, safety,
    environmental and for fiscal reasons; and would undermine the
    capability, we believe, based on the testimony and what we have
    heard from the Department of Energy, to complete its work on a
    permanent repository that it has now undertaken.
        No emergency exists that requires the immediate removal of
    nuclear waste from its current storage facilities at commercial
    reactors, and I think that that is perhaps one of the most
    important things that I could say here today. There is not an
    emergency that would cause the need to have an interim storage
    facility.
        For 2 decades, the nuclear industry has lobbied
    policymakers to legislate for this government bailout of
    private industry's intractable waste problem. Interim
    centralized storage offers no advantages and adds disadvantages
    to localized storage at nuclear power plants. Interim storage
    sites will not remove the waste that are at the plants anyway,
    because, of course, many of these plants will continue to
    operate and continue to create the waste.
        The risk that is posed by moving 100,000 shipments of
    highly irradiated fuel on our highways and on rails across 43
    States over the next 30 years is immense. Eighty-two percent of
    the American public do not want this waste to be transported
    near where they live.
        The mandate in H.R. 45 for transferring waste to an interim
    storage facility represents a massive 4,350 percent increase in
    nuclear waste shipments resulting in the exposure of over 50
    million Americans. It is estimated that we can expect between
    210 and 354 crashes on our highways with this waste. A small
    release of this waste would contaminate 42 square miles, taking
    460 days and $620 million to clean up. That doesn't take into
    account sabotage and other potential problems.
        The Department of Energy's viability assessment which
    recently was released provides conclusive evidence, in our
    view, based on the Department's own guidelines, that Yucca
    Mountain should be disqualified. It shows that the water travel
    time from repository to accessible environment is only about
    500 years, and we view this as shocking in view of the highly
    dangerous waste life, which is from 250,000 to 1 million years.
        The viability assessment contains estimates of radiation
    exposure indicating that a large increase in cancer rates may
    occur in the area around Yucca Mountain. This is the result of
    a dose 20 times larger than the amount allowed by standards
    applied to other waste dumps. In our view, any increase, no
    matter how small, in background levels of radiation that could
    be controlled is intolerable.
        Several independent scientific studies raise more concerns
    over Yucca Mountain. These significant questions about the
    safety of Yucca Mountain are not addressed in your bill, H.R.
    45. Instead of setting a safety floor, H.R. 45 wrongly preempts
    Federal, State and local laws that are more protective of the
    public and curtail the National Environmental Protection Act.
    We find it quite interesting that a committee and the
    leadership of this Congress that speaks about the 10th
    amendment and States' rights would pass legislation such as
    this which is so preemptive of the rights of States. And we
    believe that it certainly undermines the public confidence in
    this program. The bill sets radiation protection standards that
    are four times greater than the established standards and
    prohibits the EPA from setting its drinking water standards.
        Since I am the only witness at this panel on this, could I
    have a few more minutes, Mr. Chairman?
        Mr. Stearns. Sure. I think so.
        Ms. Claybrook. I would point out that in 1995, the Congress
    eliminated the national 55-mile-an-hour speed limit and decided
    to let the States set their own standards. Why then would the
    Congress want to prevent the States from setting a higher
    transportation safety standards for these highly dangerous
    wastes?
        H.R. 45 also forces taxpayers, not just the industry, to
    pay for the ever-increasing cost of the nuclear waste issue.
    Predictions of the shortfall, including the interim storage,
    have risen to $45 billion. This legislation causes an even
    greater shortfall than legislation introduced last year, yet it
    further reduces the fee that the industry would pay.
        Retaining nuclear waste at the utilities through 2010 is
    seven times less expensive than the costs through 2002 of
    interim central storage in Nevada. If passed, the legislation
    is likely to cost taxpayers more money from litigation, because
    it continues the trend in the nuclear waste policy of setting
    impossible deadlines. The ongoing litigation against DOE by the
    nuclear utilities is the result of deadlines that could not be
    met scientifically, that were established by the Nuclear Waste
    Policy Act of 1982 over the objection of environmental and
    safety organizations. More legislative deadlines that DOE
    cannot meet will result in more taxpayer money being paid to
    utilities following their lawsuits.
        In summary, Mr. Chairman, H.R. 45 is bad public policy, and
    it really creates two possibilities if the legislation passes
    and the waste is shipped for interim storage. One, the danger
    exists that because the waste is there, the dump will become a
    permanent storage facility without a number of necessary
    safeguards. The other possibility is that because a site is so
    problematic, waste will need to be moved again, needlessly
    increasing risks.
        Lawmakers should carefully consider the evidence and the
    public view and not be swayed by the powerful nuclear industry
    lobby.
        Thank you very much.
        [The prepared statement of Joan Claybrook follows:]
      Prepared Statement of Joan Claybrook, President, Public Citizen, on
     Behalf of the Nuclear information And Resource Service and the Sierra
                                      Club
        Thank you for the opportunity to present Public Citizen's view on
    civilian high-level radioactive waste. Public Citizen is a non-profit,
    non-partisan, consumer research and advocacy organization with 150,000
    members nationwide. We accept no funding from corporations,
    governments, or trade associations.
        Because of the long-term potent threat to public health, safety and
    the environment, over the past 25 years Public Citizen has been
    actively engaged in the public policy debate about the responsible
    disposition of nuclear waste.
        The highly irradiated nuclear fuel from commercial reactors is one
    of the most toxic substances known to man. No nation has found the
    long-term answer to the problem of isolating this extremely dangerous
    waste from humans and the environment for the 1000 millennia during
    which it remains highly toxic and hazardous. The decisions made today
    about the disposition of waste will have ramifications for the next
    30,000 generations to come. In the past, policy makers have not heeded
    the warnings of the public interest community about nuclear waste
    policy. As a result, fateful decisions concerning nuclear waste policy
    were made. Listen to our warnings over the years:
        In the 1970s, when new nuclear plants were still being planned, we
    cautioned policy makers about the inadvisability of relying on an
    energy source with an intractable waste problem. In the late 1970s,
    when citizens who lived near nuclear power plants became extremely
    apprehensive about nuclear waste disposal, national organizations and
    citizen's groups educated policy makers, the media, and the public
    about the enormous dangers, ramifications and costs. Prior to the
    passage of the Nuclear Waste Policy Act of 1982, policy makers were
    warned by Public Citizen and other environmental organizations that the
    scientific knowledge necessary for locating and evaluating permanent
    site locations based on a geological evaluation did not yet exist. Then
    when the 1982 law was amended in 1987 to make Yucca Mountain the only
    candidate site for a permanent repository, we told policy makers
    repeatedly that the decision was wrong because it was based on
    politics, not science.
        In retrospect, had policy makers listened to the warnings
    concerning nuclear waste and the laws pertaining to it, we would not
    have had the string of public policy failures related to nuclear waste.
    At a minimum, the DOE would not be spending taxpayer money to defend
    the government's inability to meet impossible deadlines. Instead of
    wasting tax dollars, millions of dollars in public funds could have
    been devoted to scientific research to search for an acceptable
    disposition of nuclear waste.
        Today, I must report that the ``solution'' has still not been
    discovered and that the nuclear industry, richer and more powerful than
    ever, is still lobbying for a legislated mandate to take the highly
    toxic waste it created off its hands. Hastily passed legislation
    mandating a massive transportation scheme to an inappropriate site
    would be yet another wrong decision to be regretted in the future. The
    evidence is compelling. The Nuclear Waste Policy Act of 1999, H.R. 45,
    mandates a premature and false solution to the nuclear waste problem
    that would have many consequences for future generations. Let us
    examine the evidence.
        First, we should be clear, no emergency exists that requires the
    immediate removal of nuclear waste from its current storage facilities
    at commercial reactors. For almost two decades, the nuclear industry
    has lobbied policy makers in an attempt to solve its public relations
    problems in communities where reactors are located and to reduce its
    liability risks.
        In reality, centralizing interim storage, as mandated by H.R. 45,
    would increase the risks to public health and safety. Although high-
    level waste should not stay at the point of generation forever, in the
    short-term it creates less risk than moving it. While we should never
    belittle the risks of on-site storage, the risks posed by operating
    nuclear reactors dwarfs the risks posed by the nuclear waste stored
    next to the reactor.
        Even though the nuclear industry claims that declining space in
    reactor fuel pools is a major crisis, utilities are able to expand
    their on-site storage capacity with dry casks, and many have already
    done so. Although we believe that dry-cask storage on site is the least
    unsafe method of storing nuclear waste, this does not mean that we
    endorse either the particular ways in which this technology is being
    implemented or the Nuclear Regulatory Commission's (NRC) lax oversight
    of casks. While we do not believe that high-level waste should stay at
    the point of generation forever, we have not seen any evidence that we
    should rush to move the waste to an inadequate and unsafe interim
    storage facility. Storing the waste on-site for the interim will allow
    the scientific community to continue researching for better options.
        Second, the risk posed by moving 100,000 shipments of highly
    irradiated nuclear waste on the roads and rails of 43 states and 320
    congressional districts, over the next 30 years, is immense. The
    mandate in H.R. 45 for hauling waste to an interim storage facility
    represents a massive 4350% increase in nuclear waste shipments,
    exposing 50 million American citizens who live within a half-mile of
    the transport route to untold and grotesque risks.
        Crashes will happen. In reviewing the Department of Transportation
    (DOT) data on hazardous material crashes, we found that 99,490 crashes
    caused the release of hazardous material into the environment over a
    10-year period, from 1986 to 1996. The result of these crashes was not
    only $317 million in damages, but 114 deaths, 356 major injuries, and
    4305 minor injuries.
        Based upon DOE assumptions about the nuclear waste shipments, we
    can project 210 to 354 crashes will occur in the next 30 years if H.R.
    45 becomes law. Furthermore, testing procedures for nuclear waste
    transport casks are inadequate and will likely lead to horrible
    injuries and contamination from nuclear waste crashes. A conservative
    DOE crash scenario of a crash in a rural area suggests massive cleanup
    efforts would be necessary, costing $620 million, requiring 460 days to
    detoxify the estimated 42 square miles. Urban crashes would be even
    more severe in terms of horrible injuries and an increased likelihood
    of radiation exposure to innocent victims.
        Last week, we had a preview of the types of crashes we can expect
    to see if H.R. 45 becomes law. In Chicago, a truck improperly shipping
    empty nuclear material canisters struck an overpass, knocking canisters
    off the truck and on to other cars. Fortunately the canisters were
    empty. Even so, the highway, a major Chicago thoroughfare was shut down
    for several hours. The potential damage from crashes involving highly
    radioactive nuclear waste could be devastating.
        The public recognizes the potential problems. A recent poll found
    that 82% of those surveyed do not want to live near a nuclear waste
    transport route. As a result, members of Congress who vote for
    legislation mandating this transportation will have to explain their
    vote on H.R. 45 to constituents who overwhelmingly and adamantly oppose
    its provisions. It should be remembered that passage of H.R. 45 will
    result in waste transportation through 320 congressional districts.
        Third, the Viability Assessment (VA), the DOE's report on the Yucca
    Mountain site, provides conclusive evidence that the Yucca Mountain
    dump should never be built, based on DOE's own guidelines. A key piece
    of evidence is the data showing that water travel time from the
    repository to the accessible environment is only about 500 years. This
    is indeed shocking. It indicates that serious health hazards will be
    present at and around the Yucca Mountain site over the long term
    because nuclear waste remains highly toxic.
        A report in the January 7, 1999 issue of Nature provides further
    evidence that migration of radioactive material through groundwater
    occurs at a much faster rate than previously understood. Plutonium from
    an underground nuclear weapons test, conducted 30 years ago at the
    Nevada Test Site, has been detected in a test well located nearly a
    mile from the blast site. Further evidence can be gleaned from a report
    issued in December 1998 by the Institute for Energy and Environmental
    Research. Recent geological sampling indicates that warm groundwater
    has flooded the region where the proposed repository is to be located.
        The Viability Assessment and the other scientific documentation
    provides dramatic proof of the lack of certainty surrounding
    predictions of how long radionuclides can be isolated. This compelling
    information should make the Yucca Mountain site ineligible for a waste
    dump according to DOE's disqualifying conditions in their own
    guidelines.
        Related to this, H.R. 45 does not protect the public from dangerous
    levels of radiation in groundwater. Not only does H.R. 45 preempt the
    Safe Drinking Water act, it fails to provide any protection for
    groundwater, the key pathway of exposure to radiation.
        Fourth, the Viability Assessment contains estimates of radiation
    exposure indicating that a large increase in cancer rates may occur in
    the area around Yucca Mountain. The exposure models demonstrate that
    the amount of radiation that the population living near the site will
    be exposed to will peak at 300 millirems over a period of 300,000
    years. This almost doubles current background radiation at Yucca
    Mountain. It will result in a dose 20 times larger than the amount
    allowed by standards applied to other waste dumps. DOE falsely asserts
    that since the national average for background radiation is 360
    millirem per year, that a 300 millirem increase per year is not an
    issue. However, science dictates that additional exposure to radiation
    causes additional cancer. Therefore, any increase, no matter how small,
    in background levels of radiation is intolerable, and doubling the
    local exposure is absolutely immoral.
        Unfortunately, DOE and the nuclear industry will not admit that the
    Yucca Mountain site is inappropriate. And, the nuclear industry
    continues to try to convince lawmakers to reduce the protective
    standards for radiation exposure. By legislating a weaker level of
    protection than recommended by the National Academy of Sciences, the
    bill establishes a standard that fails to protect children, pregnant
    women and other vulnerable populations.
        Fifth, the bill does further damage by preempting federal, state
    and local laws that are more protective than H.R. 45. The overly broad
    language ensures that local and state governments cannot require extra
    protections for their citizens. These laws are preempted automatically
    if they pose any obstacle to implementing the law. It is truly amazing
    that in Congress whose leaders claim to revere the 10th Amendment and
    states rights, legislation such as this dealing literally with life and
    death, contains some of the most extreme preemption of state law ever
    proposed. Instead of setting a national floor for safety that states
    can enhance, it prohibits states from being able to protect its
    citizens.
        The bill also severely curtails the National Environmental
    Protection Act (NEPA), one of the most important environmental laws
    ever enacted. This means that a legitimate review of environmental
    issues at the Yucca Mountain site can not take place today or ever. It
    excludes from any consideration of several key factors, including the
    need for the facility and alternatives to the site. Thus without any
    crisis or justification, this extremely hazardous facility would be
    exempted from the basic provisions for environmental review that are
    required for federal actions that have significant impacts on the
    environment.
        Not only are all federal laws preempted if they are inconsistent
    with H.R. 45, it would also prohibit EPA from setting a radiation
    protection standard. As mentioned above, a ground water standard is
    absolutely essential to protecting public health and safety. We
    challenge the idea that Congress has more scientific experience in
    setting radiation standards than EPA.
        Sixth, H.R. 45 completely ignores new scientific evidence about
    earthquakes. In January of 1999, hundreds of earthquakes struck the
    Nevada Test Site near the proposed interim storage facility, the
    largest of which registered a magnitude of 4.7 on the Richter scale.
    From 1976 to 1996, 621 earthquakes with a magnitude of 2.5 or greater
    occurred within 50 miles of Yucca Mountain. In 1992, a 5.6 magnitude
    earthquake struck on a previously unmapped fault, 8 miles from Yucca
    Mountain, causing hundreds of thousands of dollars in damages to a
    local DOE building.
        The threat is highlighted in a report in the March 27, 1998 issue
    of Science. Scientists from Harvard and the California Institute of
    Technology, using a network of satellites, recalculated the geological
    expansion rate at Yucca Mountain. They found the rate of expansion to
    be 10 times greater than DOE assumptions, thus raising significant
    questions about the frequency of large earthquakes and volcanic
    activity at Yucca Mountain. So much for safe disposition of high-level
    nuclear waste than delivers a lethal dose of radiation in 3 minutes.
        Seventh, the bill forces taxpayers, as well as the industry, to pay
    for the ever-increasing cost of disposition. An independent cost
    assessment from February 1998, reviewed by KPMG Peat Marwick, warns of
    the ever-widening shortfall in funding for the site. The $25 billion
    shortfall is a result of the escalating costs for the permanent
    repository and the additional costs of building the proposed interim
    storage facility. A more recent report by Synapse Energy, Stranded
    Nuclear Waste, projects that the shortfall could rise to $45 billion if
    nuclear power plant retirement continues as a result of regulation.
        The situation surrounding these plants strongly suggest that the
    fees ultimately placed on ratepayers will have to be increased to
    prevent taxpayers from further subsidizing nuclear waste disposition.
    The funding mechanism in H.R. 45 will cause an even greater shortfall
    than the mechanism in the nuclear waste legislation from the 105th
    Congress, H.R. 1270. It further reduces the amount of money the
    industry must pay for the nuclear waste program, while increasing the
    cost of it. This is unacceptable.
        Eighth, H.R. 45 is likely to cost taxpayers more money from
    litigation because it continues the trend in nuclear waste policy of
    setting irrational deadlines. The on-going litigation against DOE by
    the nuclear utilities is the result of the foolish deadlines
    established in the Nuclear Waste Policy Act of 1982. Several federal
    agencies testified that the 1998 deadline was unreasonably short. The
    industry lobbied for the deadlines and they are using DOE's failure to
    meet them as a reason to sue.
        The utility estimates for potential damages are outrageous and the
    courts have yet to assign any damage amounts. In response to the
    litigation, DOE is making a good faith effort to settle the issues
    raised by the utilities by providing a cash settlement. While we do not
    endorse this payment, we question the motivations of the utilities in
    rejecting it. It seems that they wish to keep the lawsuit going because
    it serves their political agenda.
        The industry's claim that the on-going litigation is proof that
    H.R. 45 is necessary is completely false. If passed into law, the
    legislation will create the same problem that previous nuclear waste
    legislation has created--more impractical deadlines and lawsuits. This
    has been a costly mistake in the past and it should not be a mistake
    that is repeated. If passed, H.R. 45 may result in more lawsuits
    against the government that must be paid for by taxpayer.
        In conclusion, H.R. 45 is bad public policy. Rushing to move waste
    to an interim storage facility in Nevada violates the public's trust
    that their health, safety and pocketbooks will be protected by their
    Representatives and the Department of Energy. Rather than solving the
    nuclear waste problem, H.R. 45 will worsen it. The scientific evidence
    is mounting that Yucca Mountain cannot be the site for the permanent
    storage of high-level waste. As a result of the evidence, 219
    environmental organizations petitioned the DOE to disqualify Yucca
    Mountain. The petition established both legal and scientific grounds
    for the disqualification. The environmental community is united in
    opposing H.R. 45, not only because of the inherent dangers I have
    described today, but because the concept of ``interim'' storage is
    really a charade.
        We see only two options if the legislation passes and waste is
    shipped to an interim storage facility at the Yucca Mountain site. The
    first scenario is that under severe industry pressure the so-called
    interim storage facility would in fact become permanent, without any of
    the necessary safeguards. The other possibility is that the waste would
    have to be moved once again, needlessly increasing the risks of crashes
    involving radioactive waste.
        We urge members of this Committee to carefully consider the full
    and real implications of H.R. 45. The nuclear industry is extremely
    powerful and it has used its political and financial muscle to force
    bad public policy decisions in the past. In the 1998 election cycle,
    Members of the House of Representatives have accepted $8.7 million in
    PAC contributions from the lobbying arm of the nuclear industry, the
    Nuclear Energy Institute and its members. In addition, members of NEI
    contributed over $3.7 million in soft money contributions to the
    national political parties in the 1998 election cycle. We hope that the
    Members of this Subcommittee on Energy and Power can look past the
    money and reject H.R 45 as ill-conceived and dangerous legislation.

        Mr. Stearns. I thank you. And I thank all of you. I just
    have a few questions here.
        I think, Ms. Claybrook, you finished up. Maybe let me just
    ask you--because you are giving a different point of view; I
    respect your point of view and I think it is very healthy to
    have your point of view--your argument basically is to keep it
    at the sites?
        Ms. Claybrook. That's correct.
        Mr. Stearns. It has been established they are safe at the
    sites. What happens if we shut down nuclear power in some of
    these areas where you actually shut it down? What would you
    suggest we do with the waste material from these nuclear power
    plants if the plants are actually shut down?
        Ms. Claybrook. Well, there is a long decommissioning
    process, of course, for these plants, Mr. Chairman, and so
    there would be many years before these plants are just
    abandoned. It is not like you are going to shut down a coal
    plant, and you shut it down, there are no consequences and you
    can walk away from it.
        Mr. Stearns. Is there anyone else that would like to
    comment on that?
        Mr. Joos. If I may, we have shut down a nuclear power
    plant. We are in the process of decommissioning the plant. Our
    construction, or destruction schedule, if you will, will allow
    that facility to be returned to green-field by the year 2003 if
    we can ship the fuel. If we can't ship the fuel, that fuel
    could sit in that site for 20, 30 years. Who knows how long it
    is going to take?
        Mr. Stearns. Ms. Claybrook, your testimony asserts that
    there is no reason to accelerate acceptance of nuclear waste by
    DOE because, ``No emergency exists that requires the immediate
    removal of nuclear waste from its current storage facilities.''
    Are you aware that three Federal courts have found DOE had an
    unconditional obligation to begin acceptance on January 31 last
    year? And do you believe Federal agencies should ignore these
    legal obligations? I guess your question would be, how do you
    suggest that DOE be in compliance?
        Ms. Claybrook. Well, first, in terms of what I said about
    emergency, I meant practical, there is no practical emergency.
    In terms of the deadlines, we urged the Congress in 1982 not to
    set deadlines that could not be met. We have always urged that,
    because there is a science behind these issues.
        When you set an absolute deadline for something and it
    doesn't conform to the science or the capacity to achieve that
    science, then you are not going to be able to meet the
    deadlines. So we believe that what this bill does is, it just
    adds more of those and more complexity facing the executive
    branch of the government.
        It is very well for the Congress to say, we want this done
    now, and we want to get it done by X date, and pick a number
    out of the hat; but that does not result in rational activity
    by the executive branch. The executive branch--it would be
    irrational for them to do something that is dangerous. They
    don't have the authority to do that either.
        Mr. Stearns. Some members of this committee have talked
    about utilities suing for the money and so forth. I guess the
    question would be for Mr. Koppendrayer.
        Which would you prefer, recovery of damages or performance?
    Would you rather have money or see DOE begin acceptance? That
    is sort of a softball question for you.
        Mr. Koppendrayer. Obviously, to begin movement of the
    waste, I think what we have to recognize here, Mr. Chair and
    members, is that the ratepayer has paid on a contract to have
    this waste stored, to move this waste from the plant so that
    the plant can continue to operate. In Minnesota, we are going
    to have--if it is not moved, we are going to have to
    prematurely shut down the plant. Then the ratepayer, while its
    money is here--their money is sitting here, has to pay again to
    build another plant and continue to pay again to store the
    waste at the site of the shut-down plant. So they are going to
    be asked to pay three times.
        Mr. Stearns. Is there anyone else that would like to
    answer?
        Ms. Claybrook. Mr. Chairman, I would just like to point out
    that the court did not order performance. You do know that. The
    court, in fact, very specifically put monetary payment, but did
    not order specific performance by the Federal Government. That
    is, they did not require the waste be moved.
        Mr. Stearns. Mr. Strand.
        Mr. Strand. Obviously, I would answer the question the same
    way that Commissioner Koppendrayer did, but I would also like
    to say, there was some discussion, I think, with the second
    panel in particular, that if in fact damages were awarded,
    basically out of what fund or what pocket would those damages
    be paid. I would suggest that to the extent it actually comes
    out of the fund, that would be the ultimate insult to the
    ratepayer who basically had that money taken out basically to
    pay for the nuclear waste to be moved; and then if in fact it
    comes out of that very fund, I think that would be the worst
    possible situation.
        We obviously want the problem taken care of. We really
    don't want--we are not interested in this for the damages
    obviously. We want the nuclear waste basically off of Lake
    Michigan in a site hopefully that is a little more conducive to
    where it should be.
        Mr. Stearns. I have finished my questions. Just as a
    comment, and maybe this is directed toward Ms. Claybrook, we
    had a little graph here, I don't know if you saw it, where it
    talked about levels of radiation, whether you had a chest x-
    ray, whatever. It turns out that a chest x-ray is relative to
    10, but us walking around the halls of Congress here is like,
    if I recollect, it was over 100. So every day Mr. Hall and I
    are getting this radiation from all this concrete and material
    here, without even realizing it, day in and day out, it is at
    least 10 to 30 times the level we will get if it is an x-ray.
        So when you look at the different areas for radiation doses
    in perspective, it makes it look like what they are trying to
    do in Yucca Mountain is pretty small. I just bring that to your
    attention to show you the relative insignificance of the amount
    of radiation to compare with what Mr. Hall and I are seeing
    every day around here.
        Ms. Claybrook. You do have a dangerous occupation, Mr.
    Chairman.
        Mr. Stearns. In more ways than one.
        Ms. Claybrook. I recognize that. Particularly traveling on
    aircraft, in addition, adds to it. The question is, should
    there be additional radiation that you are exposed to and
    particularly radiation that you don't choose to be exposed to.
    I mean, these are----
        Mr. Stearns. But this is so small relative to what he and I
    are getting every day. If your argument is, it is not safe----
        Ms. Claybrook. It is additive. The more you get, the worse
    it is. Particularly if you drink it. It is one thing in the air
    and it is another thing if you consume it. So if it goes into
    the groundwater and you drink it, that is even more dangerous.
    And so I think that what you are talking about is--it is like
    having someone who smokes and someone who doesn't smoke.
    Someone who smokes takes that risk. If they decide they are
    going to fly on an aircraft, decide they are going to smoke,
    they are going to take that risk. But if you don't smoke, why
    should you be exposed to it?
        That is the argument that I would say to you here. Why
    should someone who lives in Nevada be exposed to this extra?
        Mr. Stearns. Joan, hypothetically if I can show you
    categorically that it is extremely safe for a long period of
    time at Yucca Mountain, would you change your mind?
        Ms. Claybrook. What is a long period of time? This waste is
    highly toxic for 250,000 years, Mr. Chairman, and so we can't
    do anything about that now.
        Mr. Stearns. Let's say if it were a thousand years.
        Ms. Claybrook. A thousand. What kind of legacy are we
    leaving to our children?
        Mr. Stearns. But you understand by then we are going to
    understand how to take this waste and reconvert it into
    something new. Look at the computer industry, what has happened
    there. You know that there is going to be a technological
    innovation here, that this waste material is going to be made
    useful in a thousand years.
        Ms. Claybrook. There are two different issues, Mr.
    Chairman. One issue is this bill and whether we should lower
    our standards as this bill does; whether we should reduce the
    fees on the industry, which this bill does; whether we should
    have interim storage and have highly toxic wastes on our
    highways. And I happen to be an expert in highway safety, so I
    can tell you much more about that after this meeting if you
    would like.
        And so that is what this bill does. That is one question.
    We oppose this bill for all the reasons that I have stated.
        The other question is, we are now stuck with this waste. We
    urged that this waste never be created, but it was. Now the
    nuclear industry wants to get rid of it. They say it is the
    Federal Government's problem, this nuclear waste. They have
    made profits on it, but it is the Federal Government's problem.
    And so we can't do anything about that now.
        We now have the nuclear waste, and surely I would be
    extraordinarily happy if we had a technological solution that
    was developed in the future, and God knows, I hope we do.
        Mr. Stearns. We will.
        Ms. Claybrook. Because if we don't, what a legacy to leave
    to not only one generation but 30 generations behind us.
        Mr. Stearns. I think I am all finished and we will let the
    distinguished colleague, Mr. Hall, proceed.
        Mr. Hall. That may be another reason for term limits.
        Mr. Stearns. We can kill ourselves with radiation
    treatment.
        Mr. Hall. Ms. Claybrook, I would like to ask you a question
    or two.
        You are opposed to H.R. 45, are you not?
        Ms. Claybrook. That is correct.
        Mr. Hall. I presume that from your testimony.
        Ms. Claybrook. Right.
        Mr. Hall. Your organization has been opposed to it from the
    time it was introduced?
        Ms. Claybrook. Right.
        Mr. Hall. You were opposed to the other sites that they
    were looking at?
        Ms. Claybrook. To the other what?
        Mr. Hall. The eastern site that was under consideration,
    you opposed that?
        Ms. Claybrook. For temporary storage?
        Mr. Hall. Yes.
        Ms. Claybrook. Yes.
        Mr. Hall. Or for permanent storage?
        Ms. Claybrook. Well, at some point, you have to have
    permanent storage of this, of this waste that we disapprove of.
        Mr. Hall. On temporary storage, let me ask you about that.
        Your organization supports suits against onsite storage, do
    you not?
        Ms. Claybrook. Supports suits by whom?
        Mr. Hall. Well, you would know that better than I do. How
    about in Congressman Saxton's area, Oyster Creek. Are you not
    supporting that suit?
        Ms. Claybrook. Not that I know of.
        Mr. Hall. Not funding it?
        Ms. Claybrook. Oh, no. No, no, absolutely not.
        Mr. Hall. You are opposed to interim storage?
        Ms. Claybrook. We are opposed to interim storage as it has
    been proposed. We are.
        Mr. Hall. But you don't know anything about the Oyster
    Creek suit that was filed?
        Ms. Claybrook. No. Sometimes our organization does things I
    don't know about, but not very often. In this case I am pretty
    sure that that is not true. I will submit something different
    for the record if that is true, but I don't think so.
        Mr. Hall. I am glad to know that because my next question
    would be, what are you for, what do you favor in the form of
    storage? And I guess maybe I could ask a question that would
    preclude my going any further with you.
        You are opposed to nuclear energy?
        Ms. Claybrook. Oh, absolutely. We have been opposed to
    nuclear energy. We have been in favor of solar energy and the
    cleanest and safest energy sources possible. When the Congress
    made a decision in 1953 to put all these resources, billions
    and billions and billions of dollars, into nuclear energy
    rather than into solar energy, I think that Congress made a
    huge mistake; and we are stuck with it.
        Mr. Hall. So there is not anything I could say or this
    committee could say or this Congress could say that would make
    you for or favor nuclear energy, the pursuit of further nuclear
    energy?
        Ms. Claybrook. Absolutely not.
        Mr. Hall. Even as an alternative to the sources of energy
    that we have that might preclude a war, the signs that say,
    ``No nukes could say no wars,'' if we could solve the energy
    crisis?
        Ms. Claybrook. I think if we put the same resources into
    renewable energy and into conservation, then we would never
    have to have a war over energy, Mr. Hall; and I would love to
    have a chance to come talk to you about that.
        Mr. Hall. Well, we are together in one thing in that we are
    opposed to wars, right?
        Ms. Claybrook. We are both opposed to wars.
        Mr. Hall. So we got somewhere. I didn't just totally lose
    us.
        I could be ugly and ask you about whether or not you
    supported the Brady bill.
        Ms. Claybrook. We were not involved in that, but I would
    support the Brady bill.
        Mr. Hall. Was that not an infringement by the Federal
    Government onto the States? Shouldn't the States decide who can
    carry a gun and who cannot, really and truly?
        Ms. Claybrook. I happen to be in favor of a lot of Federal
    safety and health standards. I believe that that is where
    Federal--health and safety standards, where it is appropriate
    for the Federal Government to have some national safety
    programs. So I have very much been in favor of that.
        But I have been amazed to see this Congress particularly be
    in favor of preempting States in so many areas where I thought
    that wouldn't ever happen with this particular Congress.
        Mr. Hall. I don't agree with what you say, but I certainly
    agree with the way you say it. You represent your folks very
    well.
        Mr. Chairman, Mr. Dingell had a question for Mr. Joos, but
    he had a schedule conflict and couldn't stay for the panel. I
    know he would like to be here.
        I would like permission for him to submit a question for
    Mr. Joos for the record and ask Mr. Joos to answer that
    question.
        Mr. Stearns. Surely. Go ahead.
        Mr. Hall. And, Mr. Joos, I might ask you some questions
    about the standards and the differences, and those are things
    we have to work out.
        I think--was it Mr. Strand or Mr. Koppendrayer that said
    that it was up to the Congress to do something? Or both of you?
    I guess I would ask you, what can we do? We have begged and
    pleaded and cajoled. Even in this bill we set a standard in the
    bill that is in excess of the EPA or NRC thrust. We did that
    simply because no one else had and we had to have it.
        But we are really seeking help in how we can pass this bill
    and make those that ought to comply and honor the agreement
    that they had with you all, when you first started putting your
    money up, carry out their end of it.
        Tell me how we do that.
        Mr. Strand. Basically, Congressman, what we are asking you
    to do, No. 1, is pass the bill.
        Mr. Hall. I am for that.
        Mr. Strand. We certainly appreciate your efforts to try and
    get a bipartisan type of bill, particularly that the
    administration hopefully can live with if there is such an
    animal.
        The second thing is, to the extent you do pass something
    and it becomes law, we are of course asking you to exercise
    oversight over that, because we tend to think that vigilant
    oversight is going to be necessary to make sure that the word
    of the Congress is carried forth.
        Mr. Hall. Mr. Joos, would you like to discuss the standards
    that are needed and the present status of them and where we
    are?
        Mr. Joos. There was an earlier discussion----
        Mr. Hall. Are you familiar with the standard we set in the
    bill?
        Mr. Joos. Yes, generally speaking. There was an earlier
    discussion with the EPA and the NRC representatives.
        Mr. Hall. We set those standards to try to get Ms.
    Claybrook for the bill, but I am going to mark her doubtful on
    this thing.
        Mr. Joos. I think as you have all correctly pointed out,
    the 100 millirem standard that is incorporated into the bill is
    a fraction of what normal background radiation is, and the
    normal background varies widely across this country and as you
    pointed out in these buildings can be significantly higher than
    that.
        We think it is a reasonable standard. It is a standard that
    is consistent with international standards, and it is
    consistent with the NRC's own policies with regard to total
    radiation exposure to individuals from all nonnatural
    background areas. The NRC, I think, acknowledged that they have
    somewhat arbitrarily chosen 25 percent of that standard, or a
    25 millirem standard, as their own recommendation, leaving 75
    percent of that remaining nonnatural radiation impact to other
    sources.
        I would frankly argue that that is probably overly
    conservative, given the location of this facility and the
    likelihood of any significant other sources contributing.
        But I will say this: We have dealt with the Nuclear
    Regulatory Commission for many, many years. It is an
    independent agency, a bipartisan agency, if you will, and it is
    one that has a very good record of basing their regulations on
    sound science; and for that reason, we strongly endorse the
    idea of moving the responsibility for these standard settings
    to the Nuclear Regulatory Commission. And in addition to
    establishing an initial standard of 100 millirem in this bill,
    it also provides for the NRC to be able to reduce that standard
    if they feel it is appropriate for health and safety purposes
    based on their scientific evaluation.
        Mr. Hall. Do you think that there are a lot of utilities in
    the same difficult position that you have experienced, and do
    you believe that the lack of a solution to the waste problem is
    driving a lot of these utilities' decisions about whether or
    not to keep their nuclear units open?
        Mr. Joos. We are facing significant investment, as are
    others. We have been able to solve the problem through
    significant investment, and as I have indicated, are going to
    end up storing nuclear fuel on our sites in dry casks for a
    period of years. We are not alone in that regard, although Mr.
    Abdoo is facing a situation where he possibly won't be able to
    do that for various local reasons and may be forced to shut
    those facilities down early.
        I had mentioned to you earlier, 25 percent of the Nation's
    nuclear plants have already exceeded their original design
    storage capability, and within the next 10 years, 80 percent of
    the nuclear plants will have. So it is a critical issue.
        Ms. Claybrook talked about the lack of an emergency. I
    believe there is more than a legal emergency here. We are
    facing shortages of electric supply in this country. There is a
    big debate, as you know, about clean air standards that may
    force a lot of fossil units to have significant outages over
    the next decade, and quite frankly, I think it is a real
    emergency that we solve this problem so that we don't run into
    a shortage of electric supply in this country, and we don't
    have renewable solutions in the near term of any sort that will
    replace nuclear power.
        Mr. Hall. I don't know how my time is, but I think Mr.
    Koppendrayer has something he wants to offer.
        Mr. Koppendrayer. You asked a while ago if I said
    something. I wanted to respond a little bit.
        Having been a legislator and now being a regulator, we
    dealt with this nuclear issue at both--I have at both levels.
    We have dealt with the environmental concerns. Right now, as a
    regulator, if we listen predominantly to the environmental
    concern, we are told on the one hand reduce emissions,
    CO2 being a greenhouse gas that is of most concern,
    reduce that; and on the other hand, we are going to be forced
    to shut down 20 percent of our generation.
        You just can't do both. It doesn't work. Even in Minnesota,
    we mandated, when I was in the legislature, 400 megawatts of
    wind. That will be the biggest wind field in the United States
    when it is complete; there are 200 megawatts, complete. The
    other day, when I was watching the computer, that was putting
    out 28 megawatts of power, because the wind wasn't blowing.
        So we have got ourselves in a Catch 22. I would just urge
    the Congressman to let common sense prevail if we want to keep
    the lights on.
        Mr. Hall. When you say, it is up to Congress, we want to
    pass a bill and we have asked for input from everyone that is
    both opposed to the bill and supports the bill. I think if you
    mean that it is up to Congress to keep oversight on it, as it
    goes and after we have passed the bill, I certainly agree with
    you on that, but I don't know of anything Congress can do until
    we get an NRC license and they are awaiting impact statements.
        It is just like if a 400-pound guy falls down, you want to
    help him up, you just don't know where to take hold. We are
    trying to figure out a way here to get this thing off the
    ground.
        I would say to Ms. Claybrook that I also use the States'
    rights argument a lot of times. When I don't agree with
    something, I go backways; I go both ways.
        Ms. Claybrook. I thought it was your primary argument.
        Mr. Hall. You are very versatile. We all try to do that up
    here. I thank you and I yield back my time.
        Mr. Stearns. I thank my colleague.
        Next, Mr. Shimkus.
        Mr. Shimkus. Thank you, Mr. Chairman.
        I was interested, Mr. Abdoo, in your initial comments and
    the fact that you have a facility that is in danger of closing
    because of the lack of the Federal Government's action. Talk me
    through or let me see if I have got it.
        You are permitted to have so much onsite. If you go past
    that capacity, then you are going to be forced to close; is
    that correct?
        Mr. Abdoo. Yes, sir. We are pursuing every option, but when
    we had to go to the State to get permission to get additional
    storage onsite, it was a long, drawn-out process with lots of
    legal challenges. The State's argument is, you paid once and
    why should the residents of Wisconsin pay twice?
        Where we come from, a deal is a deal. We wrote a check,
    they cashed it, they have an obligation to take the waste. And
    so we are afraid that we are unlikely to convince the State of
    Wisconsin to allow additional storage onsite. At the same time,
    we see the same Federal Government impose additional
    NOX restrictions, we have got the global warming
    business. We operate the largest green power program in the
    United States of America. Two of the seven U.S. joint
    implementation projects are Wisconsin Electric's, and we can't
    get our government to live up to the agreement that we made. So
    it is very frustrating.
        Mr. Shimkus. Is Wisconsin a high- or low-cost State?
        Mr. Abdoo. Very low.
        Mr. Shimkus. That is what I thought.
        I guess the question I want to follow up with, so you
    haven't moved, the State of Wisconsin hasn't moved on any
    energy dereg bill at this time?
        Mr. Abdoo. None.
        Mr. Shimkus. So you are still covered by regional
    boundaries to provide service?
        Mr. Abdoo. Yes, sir.
        Mr. Shimkus. What is going to happen to the ratepayers when
    you close that facility, based upon the ability to transport
    and meet the standards of Wisconsin law?
        Mr. Abdoo. Costs will go up significantly to the customers
    of Wisconsin. Even if you replace it with combined cycle
    natural gas, which is pretty cheap these days, their costs will
    go up, and the air they breathe will be dirtier than it is with
    the plant in operation.
        Mr. Shimkus. I am glad you mentioned that.
        For my final question, I want to ask Mr. Strand, Mr. Joos
    and Mr. Abdoo, under the proposed Kyoto Accord, how does that
    affect the nuclear industry?
        Mr. Strand. Well, there are a number of folks that come
    down in different ways in how it would affect nuclear energy.
    There are certainly some that have suggested that if we are to
    meet these specific recommendations that we are signing there,
    that we are going to have to rely less and less on fossil
    fuels; if that means we are going to have to rely on some
    alternate source, whether that be nuclear renewable, combined
    cycle gas, whatever, but certainly there will have to be less
    reliance on fossil fuels in the country. What the alternative
    is going to be is, of course, a policy decision and in some
    cases will be a market-based decision.
        Mr. Shimkus. Mr. Joos.
        Mr. Joos. I think Mr. Strand answered that question pretty
    well. Some have advocated that the nuclear industry, nuclear
    plants in general, should get specific credits for not emitting
    greenhouse gases. I think the bottom line is that oil, gas,
    coal, all fossil fuels when you burn them generate carbon
    dioxide which is the greenhouse gas we talked about. The
    solution to that problem is to burn less fossil fuels and that
    certainly advocates that you need nuclear power to fill the
    portfolio.
        Mr. Abdoo. My answer, sir, is that it will be virtually
    impossible to make significant reductions in greenhouse gas
    emissions if the nuclear fleet is shut down as a result of the
    inability of the Federal Government to live up to its
    obligation.
        Mr. Shimkus. Thank you, and I yield back.
        Mr. Stearns. I thank my colleague. The gentleman from
    Massachusetts, Mr. Markey.
        Mr. Markey. Thank you, Mr. Chairman, very much. You know,
    you have got a little bit of a problem here because
    notwithstanding any impact which roving bands of antinuclear
    troubadours strumming on their guitars might wish that they had
    upon the fate of the nuclear industry, the reality is that its
    demise was decided by Wall Street and Adam Smith looking at it
    as a generator of electricity per kilowatt hour and balancing
    it against others. And the truth is that one of the main
    reasons why the nuclear industry died beyond Chernobyl and
    Three Mile Island was that a lot of very persuasive people from
    Texas convinced people that cheap and clean natural gas was a
    better way of generating electricity. And those Texans made a
    very powerful argument, partnering with Canadians and others,
    to make that switch, and we have moved in that direction.
        And as we debate the deregulation of the electric industry
    across the United States, of course, we have a phrase
    ``stranded investment,'' which all of the utility executives
    use. Now, they use the words ``stranded investment'' because
    they don't want to say the words ``nuclear power plants,'' and
    they want to get bailed out from those decisions, and they want
    consumers to pick up the tab for their ill-considered judgments
    20 years ago, 15 years ago. But they hide behind the phrase
    ``stranded investment'' because they don't want to say the
    words ``nuclear power plant.''
        The reality is that there won't be any more nuclear power
    plants in the United States, not because of any antinuclear
    movement, but because consumers and citizens don't want them
    anymore and there isn't a utility executive I know in the
    United States that is actually contemplating ordering one. I
    know that once they announced that they were going to be
    ordering one, that that might have a severe impact on their
    bond rating and their popularity. And I would be interested in
    finding out who will be the first utility executive to announce
    that they are interested in building one, but I haven't seen
    one in the last 10 years, to be honest with you.
        But it has nothing to do with anything other than the free
    market at work. And I am a big advocate of the free market to
    the extent to which, like Adam Smith, I hate monopolies and
    most of these decisions were made by monopolies.
        As you move to a deregulated, demonopolized marketplace,
    you are much less likely to have monopolists making decisions
    that they know are going to be supported by local PUCs who are
    going to allow for this cost-plus electricity pricing to be
    passed on to consumers. You are just not going to have that
    environment, and that is why we worked so hard to pass that
    demonopolization, deregulation environment and created it
    nationally and locally.
        So my question is this for Ms. Claybrook: You note on page
    7 that H.R. 45 may force the taxpayers to pick up an ever-
    widening shortfall in the nuclear waste fund due to early
    retirements of reactors, nuclear reactors at the top of the
    list, and increased costs of paying for both permanent
    repository and interim storage. Do you think it is fair that
    ratepayers are going to have to shoulder that burden?
        Ms. Claybrook. We have been talking about commitments today
    and we have been talking about little commitments, but I would
    certainly say that the first commitment that was made in the
    nuclear power era was the commitment that it is too cheap to
    meter, and I think that is what sold nuclear power to a lot of
    people in the United States. And, in fact, nuclear power costs
    have increased dramatically, and in fact no plant has been
    ordered since 1974. And it has been the marketplace that has
    done that.
        The taxpayer, as you know, often--every one of you on this
    panel knows that when there are huge disasters, whether it is a
    bank that fails that is huge, or whether it is nuclear power
    that we don't know how to handle in terms of its waste, that
    the taxpayer does get stuck with the bill. And of course I
    don't think it is fair, particularly because of the way nuclear
    power was first sold to the American public.
        Mr. Markey. Thank you, Mr. Chairman.
        Mr. Stearns. I thank my colleague. And, Mr. Barton, would
    you like 5 minutes?
        Mr. Barton. This should be the last 5 minutes. First, I
    want to commend this panel for being here. I apologize. I had a
    meeting with the chairman of the full committee on this issue
    about whether we could move to markup and if so, when so. Which
    I said obviously I hadn't heard everybody on this panel but I
    felt like based on the previous two panels, that it is quite
    possible within the next month that we could work out some of
    the technical difficulties and perhaps have a markup early next
    month on this piece of legislation.
        I have not been in the Congress quite as long as the
    gentleman from Massachusetts who just spoke, but my view of the
    world is somewhat different than his and I would argue that
    nuclear power is here to stay. If you go outside the
    Continental United States and certainly in western Europe and
    Japan, it is their power of choice today. And while the
    gentlelady from Public Citizen has rightly pointed out we
    haven't ordered a nuclear power plant in this country since
    1974, it is primarily because everybody's estimates of the cost
    of alternative sources turned out to be radically wrong in the
    right direction.
        When many of the nuclear power plants operating today were
    first decided to go online, we were projecting, $50, $60 barrel
    oil and the spot market price for Texas Western media crude is
    about $11.63 cents today. In the late 1970's natural gas was
    selling for as high on the spot market for $14 in MCF. Today it
    is below $2.
        So we have been fortunate that our crude oil and our
    natural gas supplies and their cost, the supply has gone up and
    the cost has gone down, which doesn't say in the next 20, 30
    years that might reverse. And what is amazing is not the cost
    of nuclear power is so high, it is amazing to me that it is as
    low as it is, given all the regulatory burdens that have been
    put on it that are not on the energy sources.
        I can take you to Comanche Peak near my congressional
    district and there hasn't been an earthquake there in 25,000
    years, and yet the support beams are tripled, backed up. And I
    could take you to a coal-fired plant 50 miles away, that they
    don't have any of that.
        So, you know, a coal-fired plant in Texas cost, you know, a
    fifth of the cost of the nuclear plant. So we can argue about
    what happened in the past, but the bill before us today is what
    do we do about the waste that has been generated. And everybody
    understands that that waste is there. The law requires the
    Federal Government to take receipt of it. It requires that it
    begin to take receipt by last year. It hadn't done that, and so
    the Upton-Towns bill is to try to expedite the process so that
    on an interim basis, we get the waste centralized at Yucca
    Mountain, and then as a permanent repository process goes
    forward, we try to help expedite that and taking the concerns
    the DOE had about funding and some of those issues.
        So I am much more optimistic about the chances of passage
    of this bill, and long term I am much more optimistic about the
    chances for nuclear power, not just in the world but the United
    States.
        Mr. Hall. Would the gentleman yield?
        Mr. Barton. I don't really have a question.
        Mr. Hall. I will help you out there.
        Mr. Barton. I yield to you.
        Mr. Hall. Do you believe that the Congress could have done
    a better job of requiring more standardization of the
    construction of nuclear plants?
        Mr. Barton. I think a better job could have been done. I am
    not sure the Congress is the appropriate agent to require that.
        Mr. Hall. If they needed to be enticed, to put a carrot out
    there to get them not to build monuments to their idea of what
    it ought to be.
        Mr. Barton. They didn't need to reinvent the wheel in every
    new power plant.
        Mr. Hall. Had they just followed the--France lives off the
    nuke, England lives off the nuke in the North State
    successfully. I don't know that they have this big battle
    against nuclear energy in either of those countries. But
    obviously we have done--we have passed legislation that tried
    to bring about standardization and I think that is going to be
    helpful but, you know, you and I are in an unusual situation in
    that we represent a State that produces fossil fuels and has--
    we're oil and gas oriented. We have the oil patch. Part of it
    is in your district. Part of it in mine.
        I think people need to remember fossil fuels fill the Big
    Inch pipelines that went during World War II and the Big Inch
    pipelines that went up into the Lend-Lease destroyers, that we
    kept the people fighting the battle against Hitler and that was
    in vogue then. Oil and gas was in vogue then.
        I think it is kind of popular to say you are opposed to any
    type of nuclear energy. I go to the schools and when I start
    out to make a nuclear energy speech, ``How many of you for
    foreign nuclear energy? `` none of them hold up their hands.
    And then I talk to them about nuclear energy as an alternate
    source or solar or any other alternate source might prevent a
    war. And now, How many of you are for nuclear energy? And most
    of them hold up their hands and just the teachers are miffed.
        I just think that we have to be careful and I think it
    certainly makes sense that we try to have a design that is
    conducive to safety and nobody can be against that. But I think
    we have to have an alternate source if we are going away from
    fossil fuels. I am a fossil fuels guy. I am their captive. They
    are in my district. I have the oil patch and they are having a
    hard time now. A lot of people see them as driving
    Continentals. Well, they are but they are 1979 models. We are
    having a hard time down there.
        But I respect this group here who are pushing and putting
    your best foot forward, and I respect Mrs. Claybrook; and as I
    have said about Mr. Markey and me voting differently, we need
    all types on every committee, and then maybe you come together
    and work something out.
        Just like the deregulation of electricity and stranded
    cost. Of course we are going to pay stranded cost. Either that
    or we are going to have a bonanza for all the lawyers in the
    country. They are going to go straight to the courthouse and
    get their stranded cost, because they spend them in return for
    gracious living that they provided pursuant to a contract that
    they had with the government. Now, there is some that were
    foolishly purchased perhaps, but we can ferret those out.
        We absolutely have to do something about the provisions of
    H.R. 45. And once again, the chairman has begged for
    information on it, begged for your differences, how we can
    shore it up and make a good bill out of it. And for those of
    you who just plain are against it, I respect you. Stand out
    there and throw rocks at it, but I think we really need to get
    this bill. We need to get it passed. We need to get it behind
    us and get on about our business. I yield back.
        Mr. Barton. Before the chairman recesses the hearing,
    Congressman Hall and Congressman Dingell have asked myself and
    Chairman Bliley to either hold one more hearing with Secretary
    Richardson or perhaps do a meeting with Secretary Richardson.
    It is a meeting of those four people, and we are going to try
    to honor that request.
        I do not think we will have another full hearing with
    outside witnesses. If we have another hearing on this issue, it
    will be with Secretary Richardson. And as I said earlier, we do
    plan to try to consider a subcommittee markup within the next
    month. So when we send the written questions to this panel,
    please send them back as soon as possible. Obviously if we need
    to contact, telephone a person at the staff level, we will do
    that because we are going to try to move this legislation in
    the very near future. With that, I would turn it over to the
    vice chairman.
        Mr. Stearns. I thank Mr. Barton. Before we adjourn, by
    unanimous consent the committee will allow all members to
    submit additional questions for the record, either to the
    panelists or for the record, and hopefully they will be in
    within 5 days. I again want to thank all of you, and the
    committee stands adjourned.
        [Whereupon, at 3:48 p.m., the subcommittee was adjourned.]
        [The following material was received for the record:]
     Prepared Statement of Cynthia Hilton, Executive Director, Association
                   of Waste Hazardous Materials Transporters
        The Association of Waste Hazardous Materials Transporters (AWHMT)
    represents companies that transport, by truck and rail, waste hazardous
    materials, including industrial, radioactive and hazardous wastes, in
    North America. The Association is a not-for-profit organization that
    promotes professionalism and performance standards that minimize risks
    to the environment, public health and safety; develops educational
    programs to expand public awareness about the industry; and contributes
    to the development of effective laws and regulations governing the
    industry.
        The transportation of radioactive materials, despite its risks, has
    historically been one of the safest of all transported hazardous
    materials. The only way to guarantee no transportation risk is not to
    transport the material. While that is a policy decision before
    Congress, we think it important that the transportation safety record
    be known.
    Radioactive Materials Are Transported With A High Degree Of Safety
        We believe that radioactive materials, including high-level
    radioactive waste and spent nuclear fuel, from commercial generators
    can be transported safely. The U.S. Department of Transportation (DOT)
    estimates that approximately 2,800,000 shipments of radioactive
    materials occur annually. This figure represents approximately 1
    percent of all hazardous materials shipments. During the last decade,
    incidents involving any radioactive material have averaged 14 per
    year--0.01% of all incidents. No deaths and 5 injuries, all minor,\1\
    were reported as a result of these movements. We believe these
    statistics bespeak volumes about the success of DOT's implementation of
    the Hazardous Materials Transportation Act (HMTA) and industry's
    commitment to safe business practices.
    ---------------------------------------------------------------------------
        \1\ DOT classifies injuries as ``major'' or ``minor.'' ``Minor''
    injuries are those that are handled on an outpatient basis.
    ---------------------------------------------------------------------------
    DOT's Jurisdiction Over The Transportation Of Radioactive Materials
            Should Not Be Compromised
        Radioactive materials have been regulated by DOT since Congress
    enacted the HMTA in 1975. The purpose of the HMTA is to protect the
    nation against the risks to life and property inherent in the
    transportation of hazardous materials, including radioactive materials.
    Critical to this mission of safe transportation was the premise that
    consistent, uniform national standards aid compliance and enhance
    safety. When different federal agencies regulate in the same area there
    is the potential for inconsistent regulation and enforcement. We are
    concerned that some of the language in HR 45 might have this result.
    Furthermore, jurisdictional overlap between DOT and DOE will lead to
    confusion over the role of the states in regulating the transportation
    of radioactive materials. Clearly, the movement of materials
    contemplated under HR 45 will require interstate transportation. The
    transportation of these materials cannot occur in an environment where
    ``conditions'' for transportation can change from Jurisdiction to
    jurisdiction. In the last eighteen months, at least 6 states have
    considered legislation to set standards for the transportation of high-
    level radioactive waste and spent nuclear fuel. Safe, efficient
    transportation depends on uniform rules. HR 45 provides no assurance
    that DOT's will retain its preemptive authority over non-federal
    requirements that frustrate the safe and efficient transportation of
    radioactive materials.
        Sections of HR 45 that present specific concerns follow:

     Sec. 201(g)(2) provides the DOE ``in consultation with the
            State of Nevada and appropriate counties and local
            jurisdictions, shall establish reasonable terms and conditions
            pursuant to which the Secretary may'' truck spent nuclear fuel
            and high-level radioactive waste in Nevada. (Emphasis added.)
            As noted above, we have seen legislation introduced in several
            states to impose unique conditions on the transportation of
            radioactive materials. The precedent HR 45 would set with DOE
            and the State of Nevada will undermine DOT's ability to ensure
            that the transportation of these materials is not frustrated by
            diverse, unique local terms and conditions. DOT should
            determine the terms and conditions necessary and appropriate
            for the transportation of radioactive material by truck.
     Under Sec. 202, DOE must use DOT routing and training
            requirements, but DOE apparently is tasked to set standards for
            transportation tracking. DOT should be the lead on such
            standards.
     Sec. 203(c) requires training for public safety officials. The
            training is supposed to cover procedures for the safe routine
            transportation of radioactive materials as well as procedures
            for emergency response situations. DOT is to set the training
            standards. While we strongly support DOT taking the lead in
            training standards for ``the safe routine transportation'' of
            these materials, the Occupational Safety and Health
            Administration (OSHA) has taken the lead in training standards
            and requirements for emergency response. (See 29 CFR
            1910.120(q) concerning response to releases of ``hazardous
            substances,'' defined to include DOT ``hazardous materials.'')
            Congress should not confuse these jurisdictional lines by now
            saying that DOT should determine emergency response training
            standards.
     Sec. 203(c) also provides that a number of federal departments
            and agencies periodically review and attempt to coordinate
            emergency response and preparedness training programs to avoid
            duplication. The provision does not specify that the ``training
            programs'' to be coordinated are those related to radioactive
            materials. We believe the legislation should clarify the exact
            scope of the training coordination effort and we believe that
            the legislation should designate which agency should lead this
            effort. If this coordination effort is geared toward ``public
            safety officials,'' we believe OSHA should take the lead.
     Sec. 203(g) requires DOT to issue rules establishing training
            standards applicable to ``workers directly involved in the
            removal and transportation of'' covered radioactive materials.
            (Emphasis added.) DOT is to develop this training standard in
            consultation with OSHA and the Nuclear Regulatory Commission.
            The term ``removal'' is not defined. If ``removal'' is to have
            the same meaning as ``hazmat employee'' as defined by the HMTA,
            DOT has ready developed the necessary training standard for
            these workers and those who perform the actual transportation
            of these material. (See 49 CFR 172 Subpart H.) DOT's training
            standards are performance-based. These rules already require
            testing and recordkeeping. Even though paragraph (2) allows DOT
            to ``refrain from promulgating additional regulations with
            respect to worker training'' if DOT determines that its
            existing standards are adequate, DOT is still require to devote
            staff and resources to an unnecessary rulemaking.
     Sec. 203(3)(C) complicates the training standards issue and
            jurisdictional responsibilities by requiring that DOT's hazmat
            employee training requirements must cover those ``responsible
            for responding to and cleaning up emergency situations
            occurring during the removal and transportation of spent
            nuclear fuel and high-level waste.'' Again, training for
            employees engaging in emergency response and clean up is
            covered by OSHA.
     The same comment as is made for Sec. 203(3)(C) could be made
            for Sec. 203(4). In addition, it is not clear what government
            entity has responsibility for implementing this provision of
            law.
     Finally, we believe the term ``emergency situations'' as used
            in Sec. 203(3)(C) and (4) needs to be defined.
        Congress should not compound jurisdictional uncertainty over the
    transportation of hazardous materials that are radioactive. HR 45 needs
    to be amended to make clear that DOT is the agency with the most
    expertise to regulate the transportation of radioactive materials, not
    DOE or the states.
    Other Issues
     Safety and Security
        Congress should consider expanding DOT's current mandate to ensure
    that the transportation of high-level radioactive waste and spent
    nuclear fuel is conducted in a safe manner to include a mandate to
    ensure that security risks are considered as well.
     Heavy Haul Truck Transport
        A lot of attention is paid to the infrastructure preparations
    needed to transport spent nuclear fuel and high-level radioactive waste
    from the intermodal facility at Caliente, NV to the interim storage
    facility. These provisions beg the question of why similar
    infrastructure preparations are not necessary at the sites where such
    ``heavy-haul'' shipments originate. The NRC has approved a variety of
    casks; not all necessitate heavy-haul transport. The merit of using
    casks that require heavy-haul truck transport should be revisited
    absent an ability to ship such casks entirely by rail.
    Conclusion
        Thank you for your consideration of these critical issues. We look
    forward to working with the Subcommittee as this legislation is
    refined.
                                     ______

     United States Nuclear Waste Technical Review Board
                                       Arlington, VA 22201-3367
                                                          March 5, 1999
    The Honorable Joe Barton
    Chairman
    Subcommittee on Energy and Power
    Committee on Commerce
    U.S. House of Representatives
    2125 RHOB
    Washington, DC 20515-6115
        Dear Mr. Barton: On behalf of the Nuclear Waste Technical Review
    Board, I am enclosing the Board's response to a question that you
    forwarded to the Board from Representative Edward J. Markey. The
    question is a follow up to the February 10 hearing on H.R. 45 before
    the Subcommittee on Energy and Power. We hope Mr. Markey will find the
    information contained in the answer useful.
        The Board appreciated the opportunity to present its views to the
    Subcommittee at the hearing. We look forward to providing whatever
    technical and scientific information the Subcommittee may find helpful
    as it considers the many challenging issues related to the management
    of spent nuclear fuel and high-level radioactive waste.
                Sincerely,
                                                 Jared L. Cohon
                                                               Chairman
    Enclosure

    cc: The Honorable Ralph M. Hall, Ranking Minority Member
       The Honorable Edward J. Markey
                       Follow Up Question For the Record
        Question: In 1996 the Board states that ``There are no compelling
    technical reasons for moving commercial spent fuel to a centralized
    storage facility at this time,'' and suggested that ``it makes
    technical, management, and fiscal sense to await the decision on the
    suitability of the Yucca Mountain site for repository development
    before beginning development of a federal centralized storage
    facility.'' Has anything changed to provide a compelling technical
    reason for centralized storage?
        Answer: The Board observed in its March 1996 report ``. . . there
    appear to be no compelling technical reasons for moving spent fuel to a
    centralized interim storage facility for the next few years.'' This
    conclusion reflected statements by the NRC and others that spent fuel
    can be stored safely at reactors or at a centralized storage facility
    for up to a hundred years. However, the Board went on to say that a
    large centralized storage facility (with the accompanying
    transportation infrastructure) offers logistical and operational
    advantages for the waste management system. The Board felt that it made
    sense to have an interim storage facility developed and receiving spent
    fuel at a rate of 3,000 MTU per year by about 2010, when civilian
    reactors start closing down in significant numbers. The Board noted
    that there are advantages to collocating a centralized storage facility
    with an operating repository and that developing the transportation
    infrastructure necessary to begin moving significant amounts of waste
    likely will take several years. Therefore, the Board suggested that it
    made sense to continue site-suitability studies, to begin developing
    the needed transportation infrastructure, and to make a decision about
    centralized storage after a determination of the suitability of the
    Yucca Mountain site.
        While the Board found no compelling technical reasons for moving
    commercial spent fuel to a centralized storage facility for the next
    few years, the Board acknowledged in its report that there could be
    important nontechnical reasons that might prompt policy makers to
    consider developing a centralized storage facility before a site-
    suitability determination. The Board feels that its role should be to
    provide decision makers with technical and scientific information,
    which they can take into consideration when making decisions about
    waste management and disposal, and it was in that spirit that the Board
    released its report on storage. However, the Board understands that a
    decision about whether or when to develop a centralized storage
    facility is a policy decision that is outside its technical purview.
                                     ______

                     Michigan Public Service Commission
                                         Lansing, MI 48909-7721
                                                          March 5, 1999
    Honorable Joe Barton
    Chairman
    Subcommittee on Energy and Power
    U.S. House of Representatives
    Room 2125, Rayburn House Office Building
    Washington, D.C. 20515-6115
        Chairman Barton: Thank you for this opportunity to respond to the
    follow-up questions of Representative Markey regarding H.R. 45, the
    Nuclear Waste Policy Act of 1999. The attached responses to the
    questions are on behalf of the Michigan Public Service Commission and
    the National Association of Regulatory Utility Commissioners. I would
    also like to once again thank you and the Members of the Subcommittee
    for providing us with the opportunity to present our views on H.R. 45
    and this issue of critical importance to our nation. Please let me know
    if I can be of further assistance.
                Sincerely,
                                  John G. Strand, Chairman,
     Michigan Public Service Commission and National Association of
       Regulatory Utility Commissioners, Subcommittee on Nuclear Issues
      Response of Michigan Public Service Commission Chairman John Strand
        Question 1. As a State official, do you support H.R. 45's
    provisions preempting all State and local requirements that present any
    ``obstacle'' to carrying out the Nuclear Waste Policy Act or Atomic
    Energy Act?
        Response. Yes, in this specific situation, I do support federal
    preemption of any single State's initiatives that would have the effect
    of creating ``obstacles'' to carrying out the Nuclear Waste Policy Act
    or Atomic Energy Act. The issue of nuclear waste transportation and
    disposal is a unique national problem that is appropriately managed by
    the Federal government. As specified by the national policy embodied in
    the Nuclear Waste Policy Act of 1982, the transportation of spent
    nuclear fuel and high-level nuclear waste is a matter of federal
    jurisdiction and is clearly in the national interest.
        The transportation of spent nuclear fuel and high-level nuclear
    waste has been going on through out this country for more than 30 years
    and continues today. Nuclear wastes from the Department of Defense, the
    Department of Energy, from foreign research reactors and some
    commercial nuclear reactors have been transported all over this country
    with regularity and without incident. Such transportation is very
    tightly regulated by the Nuclear Regulatory Commission and the U.S.
    Department of Transportation. To allow a single State to create an
    obstacle to the federally authorized transport of these wastes would be
    a violation of the federal responsibility. Any suggestion that spent
    nuclear fuel and high-level nuclear wastes from commercial nuclear
    reactors should not be granted the same federal preemptive rights as
    the wastes of the Department of Defense, Department of Energy, and even
    foreign research reactors, when the transportation, storage and
    disposal is indisputably a statutory obligation of the Federal
    government, is disingenuous at best.
        We would consider one caveat to this position as follows: If a
    State can make a compelling case that a particular route through that
    State presents unique risks, then that State should be allowed to
    propose an alternative route through the State that would alleviate
    such unique risks. In this regard, we strongly support the requirement
    that the Department of Energy work closely with each State to ensure
    that any such unique risks are mitigated to the extent possible.
        Question 2. As a regulator, do you think Congress or the EPA is
    more qualified to set radiation protection standards that protect the
    public health?
        Response. I think this question generally mischaracterizes the
    issue. The U.S. Congress properly recognizes that it is the Nuclear
    Regulatory Commission's primary responsibility to protect public health
    and safety concerning nuclear materials. Section 205(d)(1) of H.R. 45
    would create a default ceiling of 100 millirems for exposure for the
    general population in the vicinity of the Yucca Mountain site, while
    giving the Commission the authority to lower that ceiling through a
    traditional rulemaking process ``in consultation with the Administrator
    of the Environmental Protection Agency.'' In other words, H.R. 45
    provides Congressional guidance on radiation standards while
    maintaining the customary roles and processes of the Nuclear Regulatory
    Commission and the Environmental Protection Agency. We wholly support
    these provisions in H.R. 45.
                              concluding comments
        In closing, I would like to reiterate our basic position concerning
    the Federal nuclear waste management and disposal program. First, spent
    nuclear fuel and high-level nuclear waste must be moved from commercial
    reactor sites at 72 locations around the country to a single
    centralized interim storage facility or final repository as soon as
    possible; and, second, we must protect and preserve the nation's
    electricity consumers money by ensuring that it is properly budgeted
    and appropriated only for the purposes of siting and building a
    centralized interim storage facility and a final repository, and for
    transporting spent nuclear fuel and high-level nuclear waste to these
    facilities. Anything less will cause further delays in the Federal
    program and will subject the nation's electricity consumers to tens of
    billions of dollars in new and additional costs.
                                     ______

                       Wisconsin Electric Power Company
                                                  Milwaukee, WI
                                                          March 1, 1999
    The Honorable Joe Barton
    Chairman
    Subcommittee on Energy and Power
    Room 2125
    Rayburn House Office Building
    Washington, DC 20515-6115
        Dear Chairman Barton: Thank you again for the opportunity to appear
    before the Subcommittee to present my views on H.R. 45, the Nuclear
    Waste Policy Act of 1999. In response to your letter of February 19,
    1999, I have attached answers to the additional questions posed by you
    and Mr. Norwood.
        If there is any additional assistance I can provide to the
    Subcommittee, please do not hesitate to contact me.
                Sincerely,
                                               Richard A. Abdoo
                        Chairman of the Board & Chief Executive Officer
    Attachment
               Answers to Follow Up Question to Mr. Richard Abdoo
        Question 1. Please elaborate on your contingency plans if you
    cannot begin shipping waste in 2003, either by having DOE provide on-
    site storage or by shipping spent fuel to some other offsite storage
    facility.
        Answer 1. Wisconsin Electric is pursuing several avenues to provide
    storage for spent fuel in the event that the Federal Government is
    unable to accept delivery at some off-site storage facility. First, we
    are continuing to pursue contract performance by the Department of
    Energy under our existing Standard Contract with the Department. In
    this regard, we are very interested in Secretary Richardson's recent
    remarks offering to discuss options with utilities to explore on-site
    storage. Second, we plan to make application to the Public Service
    Commission of Wisconsin to expand on-site dry storage capacity beyond
    the twelve casks currently authorized for the facility. As I stated in
    my testimony, this could be a lengthy regulatory and legal process
    based on our past experience with the state approval process. Third, we
    are investigating shipment of spent fuel to a U.S. commercially
    licensed centralized storage facility in preparation for acceptance by
    DOE. Fourth, we will determine the feasibility of shipping spent fuel
    to a non-U.S. licensed storage and/or fuel conditioning facility.
        Question 2. Please provide more details on your ideas on allowing
    the utilities to trade places in the shipment queue. Would legislation
    be necessary to allow such trading?
        Answer 2. The current Standard Contract provisions allow for
    trading positions in the queue but there is no guidance on how this is
    accomplished or how to arrange compensation to the affected parties.
    Two items should be incorporated into future legislation in order to
    clarify trading. Utilities should be able to negotiate trades in the
    queue with any cost savings resulting from consolidating acceptance
    campaigns being provided to the power plant owners that move to a later
    shipment date. Also, civilian power plant owners of operating plants
    that are in danger of shutting down because of a loss of storage space
    should be able to preempt non-civilian spent fuel shipments in order to
    keep operating.
        Question 3 (from Mr. Norwood). You indicated you are exploring
    other opportunities for interim storage of your company's spent fuel in
    light of the fact you may run out of onsite storage space. Please
    identify the sites you are currently considering for interim storage
    spent fuel.
        Answer 3. As indicated in the answer to question 1, we will
    consider a number of options including storage at any facility that may
    be licensed by 2003. Wisconsin Electric is currently not active in
    licensing any particular site.
                                     ______

                                       Nuclear Energy Institute
                                                          March 9, 1999
    The Honorable John D. Dingell
    Ranking Minority Member
    Committee on Commerce
    2125 Rayburn House Office Building
    Washington, DC 20515-6115
        Dear Mr. Dingell: Enclosed please find the response to your
    questions included in your February 17, 1999 letter. We would be happy
    to provide any additional information you may need during legislative
    consideration on H.R. 45.
        Thank you for your continued assistance and dedication to resolve
    the nuclear waste issue.
                Sincerely,
                                                  Joe F. Colvin
                                  President and Chief Executive Officer
    cc: The Honorable Tom Bliley, Chairman
       Committee on Commerce

       The Honorable Joe Barton, Chairman
       Subcommittee on Energy and Power

       The Honorable Ralph Hall, Ranking Member
       Subcommittee on Energy and Power
              response to rep. dingell letter of february 17, 1999
        Various utilities, and many states and state agencies, undertook
    litigation against DOE beginning in 1994, and are continuing to pursue
    that litigation for a number of reasons. Among those reasons were that
    DOE had taken the position that it had no authority to take used
    nuclear fuel prior to an NWPA repository being in operation, and
    therefore no statutory or contractual responsibility to utilities until
    that time. In addition, the prospects of DOE completing the repository
    program on a timely basis were, at best, questionable, given DOE's
    performance to that time and the unlikely prospect that DOE intended to
    take any actions to meet the January 31, 1998, NWPA mandated deadline.
    Finally, utilities, their customers, and state officials were growing
    increasingly concerned that the one mill/kwh fees were accumulating in
    the Nuclear Waste Fund but that a date certain when used nuclear fuel
    would begin to be taken by DOE was illusory.
        Although the decision on whether to initiate further litigation,
    proceed with litigation, or settle current litigation, is a decision
    that will be made by each utility based on its assessment of what is in
    its shareholders', and its customers' best interests, passage of H.R.
    45 is not likely to be seen to obviate the need for DOE to implement
    actions consistent with its responsibilities under the law. In fact,
    two different courts of competent jurisdiction have found that DOE has
    not complied with the current NWPA's provisions. It is therefore likely
    that at least some utilities may continue to rely on the courts to
    enforce DOE's obligations under the law until such time as DOE
    satisfies its legal responsibilities.
        Further, H.R. 45 sets in place a legal framework to progressively
    reform the current program to better ensure that the nation's problem
    with used nuclear fuel and governmental high level wastes will be
    competently managed, but it does not provide redress for the damages
    that many utilities have already suffered, and will continue to suffer
    in the foreseeable future.
        However, the benefits to the nation of the passage of H.R. 45 will
    be substantial and it should be enacted even though it does not remedy
    all of the current problems that utilities face because of DOE's
    failure to satisfy its legal responsibilities.
        Specifically, in response to your questions:
        Question. Does the industry intend H.R. 45 to be an alternative to
    continued litigation or would enactment of H.R. 45 be in addition to
    litigation?
        Answer. We anticipate that enactment of legislation provides a
    workable system to move fuel in a timely fashion may be seen by some
    utilities (including some currently in litigation) as obviating a need
    to seek through litigation a mandate for specific performance by DOE.
    The issue of compensation for damages caused by DOE's nonperformance
    for the time period between required performance and actual
    performance, however, still remains. If DOE actually performs on a
    reasonably expedited time schedule, the industry-wide damages should be
    considerably smaller than if DOE continues on its present pace.
    Accordingly, we believe litigation will continue to serve a necessary
    role in addition to the needed reform legislation.
        Question. Would industry be willing to forgo claims arising under
    existing law in exchange for the benefits provided by H.R. 45?
        Answer. Depending on the nature of the changes included in H.R. 45,
    we believe that utilities may be willing to hold their lawsuits in
    abeyance with pending DOE's performance under their contracts. Although
    NEI cannot speak for individual utilities on contractual matters, all
    companies support H.R. 45 and we believe that companies with one-time
    fee obligations will be willing to make such payments pursuant to
    legislative requirements in order to secure passage of H.R. 45.
    However, unilateral repudiation by Congress of utilities' existing
    rights could expose the government to Winstar-type damage claims.
        A better solution would be to enact a budget reform provision that
    allowed access to the Nuclear Waste Fund without requiring subsequent
    payment of one-time fees to offset pay-go requirements. Such an
    approach would eliminate the need for advanced payment of one-time fees
    and any Tucker Act issues. While the above suggestion is the most
    efficient way to resolve Tucker Act concerns, the industry believes
    there are other methods to resolve this issue and is currently
    exploring these alternatives.
                                     ______

                               Nuclear Waste Strategy Coalition
                                                          March 4, 1999
    The Honorable Joe Barton
    Chairman
    Subcommittee on Energy and Power
    U.S. House of Representatives
    Room 2125, Rayburn House Office Building
    Washington, D.C. 20515-6115

    Re: Answers to follow up questions for the record on the Nuclear Waste
    Policy Act of 1999 (H.R. 45).
        Chairman Barton: Thank you for this opportunity to answer follow-up
    questions for the record regarding the Nuclear Waste Policy Act of 1999
    (H.R. 45). Attached are answers to the questions you forwarded from
    Representative Edward J. Markey.
        I appreciate this opportunity to elaborate on my testimony
    presented on February 10, 1999, before the House Commerce Subcommittee
    on Energy and Power. Please let me know if I can be of further
    assistance in this important debate.
                Sincerely,
                           LeRoy Koppendrayer, Commissioner
                          Minnesota Public Utilities Commission and
           Nuclear Waste Strategy Coalition Executive Committee member.
                     Response of Commissioner Koppendrayer
        Question 1. As a state official, do you support H.R. 45's
    provisions preempting all state and local requirements that present any
    ``obstacle'' to carrying out the Nuclear Waste Policy Act or Atomic
    Energy Act?
        Response to Question 1. As a state official, I make decisions in
    compliance with, and in reliance on, federal law. The Nuclear Waste
    Policy Act (NWPA) of 1982 promised state and local political
    subdivisions that the federal government would provide safe centralized
    temporary storage and permanent disposal of high-level nuclear waste
    from power plants beginning by January 31, 1998. The NWPA followed
    decades of such assurances from the federal government dating back to
    the Atoms for Peace program under the Eisenhower Administration. Every
    state government in the nation acted in reliance on these promises.
    States are right to expect these promises will be kept. For a single
    state, or political subdivision, to unilaterally switch the bargain
    that every state has relied on for decades of decision making would be
    fundamentally unjust.
        H.R. 45 contains a single provision specifying that an individual
    state or political subdivision cannot overturn a national decision to
    centrally store and permanently dispose of high-level radioactive
    waste. As proposed, that provision states:
            . . . Any requirement of a State or political subdivision of a
            State is preempted if--
            (1) complying with such requirement and a requirement of this
            Act is impossible; or
            (2) such requirement, as applied or enforced, is an obstacle to
            accomplishing or carrying out this Act or a regulation under
            this Act.

        Source: Title V, Section 501 of the Nuclear Waste Policy Act of
    1999 (H.R. 45).

        Given that: 1) H.R. 45 recognizes the U.S. Nuclear Regulatory
    Commission already has primary responsibility to ensure consistent,
    nationwide protection of the public health and safety concerning
    nuclear materials; 2) the American public and state governments have
    already accumulated 45 years of experience interacting with the federal
    government under the Atomic Energy Act (AEA) of 1954; and 3) that state
    governments and local political subdivisions have relied on the AEA and
    NWPA of 1982 promises in the performance of their state duties, the
    above provision balances the public interest.
        Question 2. As a regulator, do you think Congress or the EPA is
    more qualified to set radiation protection standards that protect
    public health?
        Response to Question 2. In its March, 1996 report ``Disposal and
    Storage of Spent Nuclear Fuel--Finding the Right Balance'' the non-
    partisan Nuclear Waste Technical Review Board (NMRB) reaffirmed earlier
    studies that it is equally safe to provide centralized waste storage
    and to transport waste to that site as it is to store waste at plant
    sites.
              ``[H]ealth, safety, and environmental risks associated with .
            . . centralized storage of spent fuel are all very low. Thus,
            differences in risk between at-reactor and centralized storage
            are not great enough to provide a decided advantage to either
            storage option.'' (See NWTRB report of March, 1996, page 20.)
            [Emphasis added.]
              ``Numerous analyses have been performed in recent years
            concerning transportation risks associated with shipping spent
            fuel . . . [T]he results of these analyses (MRS 1989, Battelle
            1989, NRC 1987) all show very low levels of risk under both
            normal and accident conditions . . . In the 1980's 100 to 200
            such shipments were typically made each year . . . The safety
            record has been very good and corroborates the low risks
            estimated analytically. In fact, during the decades that spent
            fuel has been shipped, no accident has caused a radioactive
            release.'' (See NWTRB report of March, 1996, page 19.)
            [Emphasis added.]
        This reaffirms earlier findings of the blue-ribbon panel of experts
    appointed by Congress to the Monitored Retrievable Storage Review
    Commission. In its 1989 report ``Nuclear Waste: Is There a Need For
    Federal Interim Storage?'' the Commission found central storage and
    transportation to that site to offer no greater occupational, public,
    or environmental risks. (See NWTRB report of March, 1996, pages 45 and
    52.)
    The Need for Immediate Action
        With regard to the need for immediate action by the 106th Congress,
    further delay will result in: 1) stranding tons of high-level
    radioactive waste across America for an indefinite period of time; 2)
    building 73 nuclear waste temporary storage facilities on the shores of
    lakes, rivers, and oceans in 34 states at sites never intended for long
    term nuclear waste storage; and 3) tens of billions of dollars in new
    and additional costs to delay centralized nuclear waste storage and
    permanent disposal that was supposed to have started over one year ago.
    Estimated in previous congressional testimony to be in the range of $40
    billion to $80 billion or more, these costs of delay will be paid from
    the U.S. Treasury's Judgments Fund as damages under order of the U.S.
    Court of Claims.
        In addition, choosing to continue the status quo accepts the on-
    going bilking of consumer payments into the federal Nuclear Waste Fund
    at the rate of $70,000 per hour for nuclear waste disposal services
    that aren't being provided!
        It would be unconscionable to choose further delay, and the
    resulting consequences, over an alternative that would protect the
    public health, safety and the environment, and avoid squandering tens
    of billions of dollars.
                                     ______

            United States Nuclear Regulatory Commission
                                           Washington, DC 20555
                                                         March 11, 1999
    The Honorable Joe Barton, Chairman
    Subcommittee on Energy and Power
    Committee on Commerce
    United States House of Representatives
    Washington, D.C. 20515-6115
        Dear Mr. Chairman: Thank you for the opportunity to appear before
    your Subcommittee on February 10, 1999, to discuss the important issues
    regarding H.R. 45, the Nuclear Waste Policy Act of 1999. The passage of
    H.R. 45 would affect the mission of the Nuclear Regulatory Commission,
    and we appreciate the opportunity to provide input as you develop this
    bill.
        I am enclosing the NRC responses to the post-hearing questions that
    were transmitted by your letter of February 19, 1999. Please contact me
    if I can be of further assistance.
                Sincerely,
                                            Shirley Ann Jackson
                                                               Chairman
    Enclosure: As stated
    cc: The Honorable Ralph Hall
                             Responses to Questions
        Question 1. NRC indicated in its statement that the 25 millirem
    all-pathways standard, as promulgated by NRC in 10 CFR Part 63, is
    consistent with other national and international recommendations for
    radiation that have been adopted by the international community. Please
    provide a brief survey of the standards in use by the international
    community for the disposal of spent fuel and high-level waste.
        Answer. The International Commission on Radiological Protection
    (ICRP) is the international body that develops recommendations for
    radiation protection standards. Worldwide, ICRP recommendations provide
    the basis for most national regulatory standards. In the U.S., the
    national equivalent to the ICRP is the Congressionally chartered
    National Council on Radiation Protection and Measurements (NCRP).
        Both ICRP and NCRP recommend an individual dose limit for members
    of the public of 100 millirem per year (mrem/y). In addition to this
    limit, ICRP and NCRP recommend that persons using radiation sources
    maintain exposures of the public to radiation from the sources As Low
    As Reasonably Achievable (ALARA).
        To assure that exposures to more than one source of radiation do
    not lead to a total annual dose exceeding 100 mrem, ICRP and NCRP
    recommend doses from individual sources be limited to a fraction of the
    100 mrem/y standard. For this purpose, ICRP recommends a value of 30
    mrem/y and NCRP recommends a value of 25 mrem/y. In both cases, the
    recommended value is an all-pathways standard.
        NRC's proposed all-pathways standard of 25 mrem/y and ALARA is
    therefore consistent with both ICRP and NCRP recommendations for a
    standard for an individual source of radiation.
        The following is a selected compilation of dose standards in use by
    the international community.

       Selected compilation of dose standards in use by the international
                       community from the references cited
    ------------------------------------------------------------------------
                      Country                             Standard
    ------------------------------------------------------------------------
    Finland\1\................................  0.1 mSv/yr (10 mrem/yr)
    Switzerland\1\............................  0.1 mSv/yr (10 mrem/yr)
                                                 (likely events) and 1 x 10-
                                                 6 risk limit for unlikely
                                                 events; additionally can
                                                 modify dose limit based on
                                                 size of the critical group
    France\1\.................................  0.25 mSv/yr (25 mrem/yr)
    Canada\2\.................................  Maximum individual risk 10-6/
                                                 yr (equivalent to 2 mrem/
                                                 yr)
    Germany\2\................................  Individual dose <0.3 mSv/yr
                                                 (30 mrem/yr) for all
                                                 reasonable scenarios
    United Kingdom\2\.........................  Maximum individual risk
                                                 objective 10-5/yr
                                                 (equivalent to 20 mrem/yr)
    Nuclear Energy Agency\2\..................  Maximum individual risk 10-5/
                                                 yr (approx. equivalent to
                                                 20 mrem/yr)
    International Commission on Radiological    Individual dose 1 mSv/yr
     Protection\2\.                              (100 mrem/yr) (equivalent
                                                 risk 5 x 1O-5/y). For
                                                 multiple sources recommend
                                                 lesser value by
                                                 optimization (e.g., 0.3 mSv/
                                                 y; 30 mrem/yr)
    ------------------------------------------------------------------------
    \1\ From BIOMOVS II Technical Report No. 6 (1996)
    \2\ From IAEA TECDOC-853 (December, 1995)

        Question 2. How much of the difference between the EPA and NRC
    standards derives from different methods of apportioning the total
    radiation dose to the repository? In other words, are the NRC and EPA
    starting from the same 100 millirem standard for total allowable dose
    and reaching a different answer by attributing a different percentage
    of that total to the repository?
        Answer. Although both the NRC and EPA accept the same 100 millirem
    annual standard (mrem/y) for total allowable public dose from Atomic
    Energy Act materials, the difference between EPA (15 millirem) and NRC
    standards (25 millirem) for HLW disposal dose is not derived from
    different methods of apportionment. The difference results from the
    differing interpretations by the agencies of the impact of newer dose
    methodology on the calculation of comparable levels of protection
    provided by previous radiation protection standards.
        The following outline of the NRC and the EPA approaches to
    developing the standard provides clarification:
    The NRC approach to developing the standard:
        The basic NRC and EPA radiation protection standard for members of
    the public is 100 m rem/y.
        According to the International Commission on Radiological
    Protection (ICRP) and the National Council on Radiation Protection and
    Measurements (NCRP), to assume that exposures to more than one source
    of radiation will not lead to a total annual dose exceeding 100 mrem/y,
    doses from individual sources should be limited to a fraction of the
    100 mrem/y limit. For this purpose, the ICRP recommends a value of 30
    mrem/y while the NCRP recommends a value of 25 mrem/y.
        The NRC uses 25 mrem/y all pathway value for this purpose which is
    equivalent to a lifetime fatal cancer risk of 4 x 10-4 based
    on 30 years exposure. This is consistent with previously established
    NRC standards, (e.g., license termination and low-level radioactive
    waste disposal).
        Additionally, the NRC, following international and national
    radiation protection recommendations, requires licensees to maintain
    radiation exposures to be As Low As Reasonably Achievable (ALARA).
        In practice, under NRC regulation, application of ALARA has
    resulted in exposures of members of the public to a small fraction of
    the application limits.
    The EPA approach to developing the standard:
        The starting point for the EPA limits is different and is derived
    from a goal of maintaining a lifetime risk of fatal cancer from
    environmental sources to within a range of 10-4 to
    10-6.
        15 mrem/y carries a lifetime fatal cancer risk of
    2 x 10-4 based on 30 years exposure.
        The EPA view is that this is acceptably close to (although not
    within) their risk target.
    Significance of the difference:
        The uncertainties of predicting health effects at these very low
    levekof radiation exposure are very large; it is assumed that radiation
    health effects occur at low levels.
        In the United States, about 1 in 5 persons will die from cancer, a
    lifetime risk of 20%.
        In comparison, the lifetime fatal cancer risk associated with the
    difference between the NRC and the EPA standard, 10 mrem/y, is
    2 x l0-4.
        Annual exposures to background radiation average about 300 mrem/y
    but can vary from 100 to 1,000 mrem/y depending upon location and
    naturally occurring radon levels.
    Background/Additional Information.
        The ICRP and the NCRP both, in publication 60 and Report No. 116,
    respectively, arrive at 100 millirem per year (mrem/y) as the
    acceptable individual dose from all man-made sources of radiation
    excluding medical. In 1991, NRC modified 10 CFR 20 to adopt the 100
    mrem/y public dose limit. Current EPA standards promulgated by EPA in
    1960 and 1961 limit doses to members of the public to 500 mrem/y. In a
    draft 1994 revision to these standards, EPA recommended a 100 mrem/y
    limit but thus far has not completed the process of revising its
    standards.
        Question 3. In the past, NRC has testified onsite storage is safe,
    but centralized interim storage is even safer. Is that still the NRC's
    position?
        Answer. The NRC believes that both centralized interim storage and
    at-reactor storage would protect public health and safety, however, the
    NRC also believes that a centralized facility would offer a number of
    benefits and resources savings; for example:

    Use of a central storage facility would focus our oversight activities
            for spent fuel storage at one location versus approximately 75
            sites. Licensing and inspection resources would be saved in
            regulation of one central interim storage facility instead of
            multiple independent spent fuel storage facilities.
    Relocation of spent fuel at one site would permit the sites with
            shutdown reactors to be decommissioned and released for other
            uses.
    Central interim storage would use only dry casks which are passive and
            less complex than the active systems used in reactor spent fuel
            pools, which depend on a number of pool support systems
            including cooling water, electrical power, and instrumentation.
        Regarding on-site storage, the NRC considers both wet and dry
    storage to be safe technologies, but we view dry storage as the
    preferred method for supplementary storage of spent fuel at operating
    plants.
        A central interim storage facility would require transportation of
    spent fuel in NRC certified casks, but the Commission believes, based
    on both experience with previous spent fuel transport and analysis of
    the risks of such a transportation campaign, that such transportation
    would pose minimal health and safety risks.
        Question 4. In her testimony, Ms. Claybrook of Public Citizen
    declares ``centralized interim storage . . . would increase the risks
    to public health and safety.'' Do you agree with that statement?
        Answer. No, there would be no incremental increase in risk due to
    storing spent fuel at a central location versus storing spent fuel at
    each reactor site.
        The risks to send spent fuel to centralized interim storage are not
    necessarily greater than they would be in shipping the same fuel to a
    permanent repository.
        There is always some risk involved with shipping hazardous (and
    non-hazardous) materials as evidenced by historical accident rates.
    However, the staff has no reason to believe that the extremely low
    accident rates observed for spent fuel shipments would be significantly
    different than those for other hazardous goods shipments.
        Studies conducted for the NRC, such as the Modal Study (Shipping
    Container Response to Severe Highway and Railway Accident Conditions,
    1988) and NUREG-0170 (Final Environmental Impact Statement on the
    Transportation of Radioactive Material by Air and Other Modes, 1977)
    show that the radiological risk of shipping spent fuel is very low. The
    NRC is in the final stages of revalidating NUREG-01 70 to consider new
    shipping cask types, health effects models, and routing parameters.
    Initial results of this effort, which will be completed in late 1999,
    appear to reconfirm that the radiological risk is minimal.
        In addition, NRC published a proposed rule and indicates the
    availability of a draft environmental impact statement in the February
    26, 1999, edition of the Federal Register. The amendment to 10 CFR 51
    would eliminate the need for individual license renewal applicants to
    address the environmental impacts associated with the transport of
    spent fuel in the vicinity of Yucca Mountain based on the analysis
    contained in the Generic Environmental Impact Statement (GEIS). The
    rule would add a requirement that each license renewal applicant
    address the impact of transportation of spent fuel in the vicinity of
    the plant during the term of license renewal. The proposed rule and
    GEIS are available for public comment.
    Background/Additional Information.
        The NRC's safety record for spent fuel shipments is based on
    approximately 1300 commercial shipments transported in the United
    States from 1979 through 1997. A total of 356 metric tons were
    transported in 1181 highway shipments, while 1097 metric tons were
    carried in 153 railway shipments. The greatest amount commercially
    transported in one year was 193.4 metric tons in 1985. During that
    period, the distance traveled by all commercial spent fuel shipments
    totaled 850,000 miles.
        According to statistics compiled from NRC-licensed waste
    transporters, eight transportation accidents involving spent fuel casks
    have occurred from 1971 through 1997, none of which released
    radioactive material. That accident rate appears to be generally
    consistent with the probabilities predicted in safety studies (Final
    Environmental Statement on the Transportation of Radioactive Material
    by Air and Other Modes, NUREG-0170, December 1977). In four of those
    accidents, the spent fuel casks being transported were empty and were
    undamaged. The other four accidents involved loaded casks and, again,
    none of these accidents involved the release of radioactive materials:

    A December 1971 accident, in which a truck left the road and threw off
            its spent fuel cask, which sumered some damage to the cask
            surface;
    An incident in February 1978, in which a truck trailer carrying a spent
            fuel cask buckled under its weight, but the cask was undamaged;
    A December 1983 accident, when a spent-fuel truck tractor separated
            from its axles, without damaging the cask; and
    An accident in March 1987, when a train carrying two casks of Three
            Mile Island core debris collided with a car, causing no cask
            damage.
        The U.S. commercial spent fuel shipped from 1971 to 1997 represents
    about 3 percent of the 40,000 metric tons that may eventually require
    transportation to a central interim storage facility as provided for
    under the proposed H.R. 45.
        NUREG-0725, ``Public Information Circular for Shipments of
    Irradiated Reactor Fuels'' (Revision 13, October 1998), provides
    publicly available shipment information.
        Question 5. Will the NRC have sufficient funds in the next fiscal
    year to execute its responsibilities with respect to the Yucca Mountain
    project and to prepare for the licensing process?
        Answer. Yes, if the Congress appropriates the resources requested
    in the President's budget. The Commission has requested adequate
    funding for FY 2000 ($19.15 million) to execute its responsibilities
    with respect to the Yucca Mountain project and to prepare for the
    licensing process. Examples of FY 2000 activities include resolving
    specific key technical issues and subissues that are important to the
    performance of a high-level waste repository during the prelicensing
    period and refining the Yucca Mountain Review Plan that will implement
    the site-specific, risk-informed, and performance-based regulations for
    a proposed repository at Yucca Mountain. As we move closer to the
    receipt of the license application in FY 2002, we project a small
    increase in funding requirements to ensure that NRC will be adequately
    staffed for its review.
        The NRC has not currently budgeted for the licensing review and
    regulation of the proposed central interim storage facility outlined in
    H.R. 45 and would need a supplemental appropriation from the Nuclear
    Waste Fund to carry out those additional responsibilities.
        Question 6. I understand the difference of professional opinion
    between the EPA and NRC over radiation standards affects other areas in
    addition to the Yucca Mountain repository. What other areas under NRC
    jurisdiction are affected by this question, and what is the status
    regarding standards and guidelines for acceptable radiation exposures
    in these areas?
        Answer. The NRC Low-Level Waste (LLW) and Decommissioning programs
    also are affected by the differences between the EPA and NRC over
    radiation standards.
        Under existing law, the NRC is obligated to implement and enforce
    generally applicable environmental standards promulgated by the EPA in
    accordance with the Atomic Energy Act.
        In the LLW program, similar and fundamental differences exist
    involving the acceptable level of risk and the need for separate
    pathway standards in addition to an all pathways standard. These dill
    erences were raised in 1995 in NRC comments on the EPA preproposal
    draft of environmental standards for the management, storage, and
    disposal of LLW (40 CFR 193). These comments opposed the EPA rulemaking
    as unnecessary, consistent with the State's comments but the NRC
    offered to revise its guidance concerning groundwater monitoring if the
    EPA would agree to exclude NRC licensees from its rule. After reviewing
    the comments received from NRC, the Department of Energy (DOE), the
    Office of Management and Budget (OMB), and States, EPA on June 8, 1995,
    announced that it would not proceed with the development of the Low-
    Level Radioactive Waste Standards (40 CFR 193) for facilities licensed
    by NRC or Agreement States, including low-level radioactive waste
    disposal facilities, processing facilities, and storage facilities.
    Since that time, no additional action has been taken by the EPA on this
    rulemaking with regards to either NRC licensees. The NRC standards for
    disposal of low-level radioactive waste are contained in 10 CFR Part 61
    and are supported by a series of regulatory guidance related to siting,
    construction, operation, and closure of a LLW disposal facility. The
    NRC Agreement States are implementing compatible requirements.
        The NRC published a final rule establishing radiological criteria
    for decommissioning in July 1997 that was accompanied by a Generic
    Environmental Impact Statement (GEIS). This rule established 25
    millirem per year (mrem/y) from all potential exposure pathways at a
    licensed site as the acceptable criterion for release of licensed sites
    for unrestricted use. This dose limit is coupled with the provision
    that the dose from residual radioactivity be As Low As is Reasonably
    Achievable (ALARA). NRC's GEIS, which analyzes the costs associated
    with applying Maximum Contaminant Levels (MCLs), indicates that
    reducing groundwater contamination to these MCLs could be
    extraordinarily expensive in some cases. For example, it would cost
    approximately $23 billion per threatened fatality averted if the MCL
    for strontium-90 is applied (MCL corresponds to 0.07 mrem/
    y). Moreover, at some sites, there could be a ``negative'' health
    impact to safety due to transportation accidents. In July 1998, the NRC
    published regulatory guidance for a two year period of interim use and
    comment. The NRC is soliciting comments on this guidance through a
    series of public workshops and the NRC's web site. The EPA stated that
    the NRC rule is not protective of the public health and the environment
    and stated that 15 mrem/y from all pathways, with separate limits
    established for groundwater, is necessary. The EPA limits on
    groundwater would be the MCLs specified in 40 CFR 141, National Primary
    Drinking Water Regulations.These requirements were contained in the EPA
    draft proposed cleanup rule, which was withdrawn by the EPA on December
    19, 1996, in response to issues raised by the NRC, DOE, States, and
    other interested parties.
        The Commission's final rule is based on considerations of risk,
    radiation protection principles, national and international standards,
    and costs compared to associated benefits of cleanup. In issuing the
    final rule, we concluded that it not only protects the public health
    and safety, but also establishes a framework to address the limited
    number of difficult cases which would otherwise require case-by-case
    exemptions. We believe this approach ensures adequate protection of the
    public health and safety and the environment, does not impose an
    unnecessary regulatory burden, and is based on sound policy.
        The EPA has not established a regulatory standard for this area
    under the Atomic Energy Act. However, EPA has stated that it would
    apply its guidance for cleanup of Comprehensive Environmental Response,
    Compensation, and Liability Act (CERCLA) sites. The EPA approach
    results in the imposition of the CERCLA risk range on radionuclides
    without the informed and open discussions that would be part of the
    rulemaking process to establish such radiation protections standards -
    a process which NRC has completed.
        Question 7. Would licensing an interim storage facility pose great
    challenges to NRC? Have you licensed similar facilities in the past? If
    so, how long has it taken to license similar facilities?
        Answer. No, the licensing of an interim storage facility would not
    pose any great challenges to the NRC provided sufficient resources were
    available to the NRC.
        The NRC has licensed dry independent spent fuel storage
    installations located at reactor sites. The time-frames associated with
    licensing a dry independent spent fuel storage installation have varied
    considerably based upon: the unique licensing considerations of the
    applicant; site characteristics; the storage vendor/technology chosen;
    staiff familiarity with the chosen vendor/technology (a previously
    reviewed storage cask or topical report); and the need for an
    environmental assessment or an environmental impact statement. For the
    previous reviews, the time-frame ranged from approximately 1.5 years to
    more than 7 years. The staff estimates that it should normally take
    approximately 30 to 40 months to license a dry at-reactor independent
    spent fuel storage installation.
        Although the NRC has not licensed a central interim storage
    facility, staff is currently reviewing the Private Fuel Storage, L.L.C.
    application for an away-from-reactor independent spent fuel storage
    installation to be located on a site leased at the Skull Valley Band of
    Goshute Indian Reservation in Utah. The staff received the application
    in June 1997 and expects to complete the safety review by October 1999
    and the environmental review by September 2000. The staff anticipates
    that the contested hearing proceedings will be completed around October
    2001. The license will not be issued until after the hearing is
    completed.
        The DOE submitted to the NRC a topical report for a non-site-
    specific central interim storage facility in May 1997. The staff,
    utilizing the Center for Nuclear Waste Regulatory Analyses, is
    reviewing the Department's generic approach to central interim storage.
    The staff expects to complete its review by October 1999. The NRC's
    Assessment Report will provide an early indication of the acceptability
    and feasibility of the DOE approach to central interim storage, and it
    will provide constructive experience and feedback to the DOE prior to
    submitting a site-specif ic application.
        Question 8. The WIPP site has a Congressionally-mandated radiation
    standard of 15 millirems with a separate groundwater standard. Why is
    NRC reportedly indicating that the Yucca Mountain geologic repository
    does not need to meet the same radiation protection standards as those
    applied by EPA at the WIPP facility? Is contaminated groundwater a
    health and safety issue at the WIPP facility?
        Answer. The EPA often claims that the WIPP standards of 15 millirem
    per year (mrem/y) with a separate groundwater standard is
    congressionally mandated. However as documented in succeeding
    paragraphs, NRC does not believe that either the radiation standard for
    WIPP (i.e., 15 millirem/y) or a separate groundwater protection
    standard has been specifically mandated by Congress as EPA claims.
    Further, NRC believes that the separate groundwater protection
    requirements in 40 CFR Part 191 are unnecessary because individual
    protection criteria, which take into account all pathways of potential
    exposure, are sufficiently protective of the groundwater pathway.
    Individual protection criteria also represent a more uniform and
    comprehensive approach to protecting public health and safety. The NRC
    proposed standards in 10 CFR Part 63, if implemented, will ensure that
    groundwater will remain a resource for the citizens of Nevada and that
    its use will not pose an unacceptable risk to their health. Finally,
    application of groundwater protection standards based on the drinking
    water standards is not necessary at the WIPP facility because any
    potential releases at WIPP, were they to occur, are expected to be
    confined to highly saline groundwater (i.e., not a drinking water
    source).
        In June 1997, the NRC commented on the application of the EPA's
    generic standards at WIPP as they relate to disposal of high-level
    wastes at Yucca Mountain. In that letter, the NRC summarized extensive
    NRC comments made during the development of the EPA standards including
    referencing the fact that the technical community had raised
    significant concerns regarding the scientific basis for, and
    appropriateness of, the 1985 EPA standards. EPA chose, in its 1993
    rulemaking, not to accept comments, including those from NRC, on those
    portions of the standards that were legislatively reinstated.
        Regarding the ``Congressionally-mandated'' radiation standard of 15
    millirems, the Waste Isolation Pilot Plant Land Withdrawal Act (WIPP
    LWA) reinstated those aspects of the EPA generic standards not
    specifically found problematic by the First Circuit Court in NRDC v.
    EPA. EPA believes that the WIPP LWA ``arguably'' represents an
    endorsement by Congress of the policy decisions (including risk levels
    they represent) that underlie the numerical standards in the version of
    40 CFR 191 issued in 1985. The NRC disagrees with this view. In
    revising the 1985 standards, the EPA notes that in those standards, the
    dose limits were 25 mrem/y to the whole body and 75 mrem/y, to any
    critical organ. Subsequent to the WIPP LWA, the EPA revised these
    standards to reflect current practices in measuring and assessing
    radiation exposures by incorporating an annual 15 mrem effective dose
    standard. The EPA chose 15 mrem because they believe it represents an
    equivalent level of risk to that identified by the EPA in the older
    standards. However, the NRC considers 25 mrem/y total effective dose
    equivalent (TEDE) as the appropriate dose limit within the range of
    potential doses represented by the older (1985) dose limits.
        The NRC believes that 25 mrem/y is the appropriate dose limit for
    the geologic repository for the following reasons. The International
    Commission on Radiological Protection (ICRP) and the National Council
    on Radiation Protection and Measurements (NCRP) use similar approaches
    in setting an acceptable risk level. ICRP and NCRP are organizations
    which are chartered, and internationally recognized, for the
    development of basic radiation protection standards throughout the
    world and in the U.S. Their findings are contained in ICRP Publication
    60 and in NCRP Report No. 116, respectively. Based on their review of
    health and societal issues, both organizations (while acknowledging the
    difficulty of setting standards for an ``acceptable'' public dose
    limit) arrive at 100 mrem/y as a level that can be said to be
    acceptable. Current generally applicable Federal Guidance for
    protection of the public, issued by the EPA in 1960 and 1961, limits
    doses to members of the public to 500 mrem/y. In a draft 1994 revision
    to this guidance, the EPA recommended a limit of 100 mrem/y, consistent
    with international and national recommendations, and NRC regulations,
    coupled with further constraints to apportion this total dose limit to
    specific sources of exposure. Thus far, the EPA has not completed the
    process of revising its Federal Guidance. The National Academy of
    Sciences reported that various countries allocate high-level waste
    disposal between 10 and 30 mrem per year as the dose limit. ICRP
    emphasizes that these partitions of the individual dose standard for
    individual activities such as waste disposal, are not limits, but
    rather constraints, above which doses would not necessarily be
    considered unacceptable. The NRC believes an all-pathway 25 mrem/y dose
    limit is consistent with international practices, other NRC regulated
    activities, and protective of public health and safety.
        Regarding a separate groundwater protection standard, the NRC
    continues to believe that the separate groundwater protection
    requirements in 40 CFR Part 191 are unnecessary. Specifically, the NRC
    believes that individual protection criteria, which take into account
    all pathways, are sufficiently protective of the groundwater pathway,
    and represent a more uniform and comprehensive approach to protecting
    public health and safety. Further, the use of the existing Maximum
    Contaminant Levels (MCLS) for protection of groundwater in HLW disposal
    is fundamentally incompatible with the technical basis the EPA employed
    to derive the HLW standards, and is a continuation of the EPA practice
    of applying the MCLs found in 40 CFR 141 to other activities without
    adequate justification or cost benefit analysis.
        It is important to note that any potential releases at WIPP, were
    they to occur, are expected to be confined to highly saline groundwater
    that is not subject to EPA's MCLs in groundwater. Thus, the EPA has
    never applied its groundwater protection requirements to a high-level
    waste site where there is suitable groundwater. Outside of salt
    formations, it is not clear that 40 CFR Part 191's groundwater
    provisions can be achieved. The standards applicable to WIPP and the
    proposed NRC rule (10 CFR Part 63) approved by the Commission for a
    Yucca Mountain site, adopt effectively similar strategies for
    protecting public health and safety because of the absence of
    groundwater issues at the WIPP site. In practice, both standards lay
    out an all-pathways approach. The approach taken in 10 CFR Part 63 is
    to rely on an all-pathways individual dose limit to protect the public
    health and the environment (including groundwater that might be used by
    the citizens of Nevada). This ensures that no single pathway of
    exposure will result in an unacceptable risk to the public health.
    Therefore, the groundwater will remain a resource for the citizens of
    Nevada and its use will not pose an unacceptable risk to their health.
        Question 9. EPA, in its testimony, identified several concerns with
    H.R. 45 such as the 100 millirems per year standard being too high,
    lack of stylized human intrusion scenario, etc. Does NRC's proposed
    rule address these concerns?
        Answer. Yes, the NRC proposed requirements at 10 CFR Part 63
    address, to varying degrees, many of EPA's stated concerns.
    Specifically, the EPA stated that the 100 millirem per year (m rem/y)
    standard is not suff iciently protective of public health and safety
    and is too high compared to other standards. The NRC has proposed an
    individual protection standard of 25 mrem/y to the average member of
    the critical group to account for the fact that some members of the
    critical group may be exposed to more than one source of non-medical,
    man-made radiation. The EPA also states that H.R. 45 is not consistent
    with international high-level waste standards. The NRC proposed limit
    is consistent with national and international radiation protection
    standards which recommend that individual dose from waste disposal
    facilities not exceed 30 mrem/y. This is a conservative constraint
    within the 100 mrem/y public dose limit, and members of the public are
    likely to comment during the rulemaking that a larger fraction is
    appropriate to the Yucca Mountain site. Mr. David Joos, President and
    Chief Operating Officer of Consumer Energy Company, testifying on
    behalf of the Nuclear Energy Institute, made that point at the February
    10, 1999, hearing. Others will argue for effectively a zero limit. The
    Commission received similar comments during its cleanup rulemaking
    before deciding to set the 25 mrem/y standard in its final rule issued
    in July 1997. The proposed Part 63 criteria incorporate the
    internationally-accepted concept of providing protection to the
    ``average member of the critical group'' rather than the ``average
    person in the general vicinity'' as envisioned in H.R. 45, which is
    less protective and which the EPA expressed concern about. Also, the
    proposed Part 63 criteria limit the consequences of an assumed human
    intrusion scenario to ensure that the public dose limit would not be
    exceeded in the case of such limited intrusion which is consistent with
    the 1995 recommendation of the National Academy of Sciences. The EPA
    stated that H.R. 45 is faulty in that it totally ignores the National
    Academy of Sciences recommendation to address human intrusion.
        The proposed 10 CFR Part 63 does not address EPA's concern
    regarding the need for a separate dose requirement for the groundwater
    pathway.
        The NRC has proposed an individual protection standard of 25
    millirere/y total effective dose equivalent (expected dose) to the
    average member of the critical group based on an all pathway analysis
    (the only quantitative limits for judging post closure performance) and
    specified assumptions to be used for the reference biosphere, critical
    group, and evaluation of a human intrusion scenario. The proposed
    requirements are designed to implement a health-based, risk-informed,
    safety objective for long-term repository performance that is fully
    protective of public health and safety, and the environment, and is
    consistent with national and international recommendations for
    radiation protection.
                                     ______

            United States Nuclear Regulatory Commission
                                           Washington, DC 20555
                                                         March 18, 1999
    The Honorable Joe Barton, Chairman
    Subcommittee on Energy and Power
    Committee on Commerce
    United States House of Representatives
    Washington, D.C. 20515-6115
        Dear Mr. Chairman: On February 26, 1999, you forwarded to me a set
    of seven questions posed by Representative Edward Markey for the record
    of the February 10, 1999, Subcommittee on Energy and Power hearing on
    H.R. 45, the Nuclear Waste Policy Act of 1999. Enclosed are the Nuclear
    Regulatory Commission's responses to those questions.
                Sincerely,
                                            Shirley Ann Jackson
                                                               Chairman
    Enclosures: As stated
    cc: Representative Ralph M. Hall

        Question 1. Does current law provide adequately for site
    suitability studies, licensing, transportation, and permanent
    underground burial of radioactive waste?
        Answer. The NRC believes that the existing statutory framework is
    adequate for site suitability studies, licensing, transportation and
    permanent underground burial of radioactive waste. However, the
    Commission supports the improvements made by H.R. 45, as reflected in
    our testimony at the February 10, 1999, hearing.
        Question 2. In your testimony, you suggest that to meet a standard
    of 100 millirem dose to the average person in the vicinity of Yucca
    Mountain the NRC would set a limit of 25 millirem dose to the most
    affected group. Why do you think that the law would not mean what it
    says?
        Answer. To ensure that there is no confusion regarding the approach
    to the overall system performance objective related to H.R. 45, NRC is
    proposing alternative language that embraces the nationally and
    internationally accepted approach to establishing radiation protection
    standards. The NRC believes that adopting nationally and
    internationally recognized approaches for radiation protection
    standards for high-level waste disposal adds credibility to the process
    and will facilitate licensing of a geologic repository.
        The International Commission on Radiological Protection (ICRP) and
    the National Council on Radiation Protection and Measurements (NCRP)
    are chartered, and internationally recognized, for the development of
    basic radiation protection standards. Their basic recommendations on
    radiation protection are contained in ICRP Publication 60 and in NCRP
    No. 116, respectively. Based on their review of health and societal
    issues, both organizations (while acknowledging the difficulty of
    setting standards for an ``acceptable'' public dose limit) arrive at an
    individual dose limit of 100 mrem per year (mrem/y) as an acceptable
    level. Generally, both organizations recommend apportioning this total
    dose limit to constrain exposure from specific man-made sources of
    radiation, excluding medical. In its recommendations on setting a
    health-based standard for the repository, the National Academy of
    Sciences reported that various countries allocate high-level waste
    disposal between 10 and 30 mrem/y as the individual dose limit. ICRP
    emphasizes that these partitions of the individual dose standard for
    individual activities, such as waste disposal, are not limits, but
    rather constraints, above which doses would not necessarily be
    considered unacceptable. ICRP recommends a constraint value in the
    range of 30 mrem/y.
        Because dose estimates for many thousands of years into the future
    contain substantial uncertainty, NRC believes that to provide
    reasonable assurance that individual doses will not exceed 100 mrem/y
    to members of the public from a repository at Yucca Mountain, doses to
    the average member of the critical group from all exposure pathways
    including groundwater should be constrained to 25 mrem/y.
        As noted, NRC has testified that it believes it has the flexibility
    to implement the overall system performance objective in H.R. 45 by
    using, for design and licensing purposes, an individual protection
    standard of 25 millirem total effective dose equivalent to the average
    member of the critical group based on an all pathway analysis and
    specified assumptions to be used for the reference biosphere, critical
    group, and evaluation of a human intrusion scenario. Such a standard,
    as proposed by the Commission in 10 CFR Part 63, includes consideration
    of the probability of human exposure. The NRC believes this approach is
    the best way to implement a health-based, safety objective for long-
    term repository performance that is fully protective of public health
    and safety, and the environment.
        Question 3. H.R. 45 does allow NRC in consultation with EPA to
    override the bill's standard. How would you determine if the standard
    in the bill provides ``adequate protection of health and safety of the
    public''?
        Answer. If the NRC cannot ensure that expected doses will not
    exceed 100 millirem per year (mrem/y), then NRC may need to conclude
    that the standard in the bill is not protective of public health and
    safety.
        As stated in the Answer to Question 2, the NRC is proposing
    alternative language to H.R. 45 that embraces the nationally and
    internationally accepted approach to establishing radiation protection
    standards to ensure that there is no confusion regarding the overall
    system performance objective approach.
        Specifically, the NRC adopted in 10 CFR Part 20 the national and
    internationally accepted individual dose limit of 100 mrem/y for
    exposure from all man-made sources of radiation excluding medical. The
    NRC also adopted the nationally and internationally accepted approach
    of applying ``constraint values'' and the ``average member of the
    critical group'' concept to reduce the likelihood that any one
    individual would be exposed in excess of the 100 mrem/y public dose
    limit. The NRC also requires its licensees to apply the As Low As
    Reasonably Achievable (ALARA) principle to further reduce exposures.
        As a result of applying this approach, the NRC selected 25 mrem/y
    as a conservative constraint within the 100 mrem/y limit, which is
    consistent with existing limits for monitored retrievable storage
    facilities (10 CFR Part 72) and low-level waste facilities (10 CFR Part
    61). It is also within the international constraints that allocate
    doses from high-level waste disposal to between 10 and 30 mrem/y and is
    comparable to the risk range recommended by the National Academy of
    Sciences for Yucca Mountain.
        Question 4. You state in your testimony that 10,000 years is ``a
    sufficient length of time to assess the isolation capability of the
    system.'' Models suggest that maximum exposure would occur after
    roughly 300,000 years. Won't you miss most of the health effects of the
    repository if you don't consider times at least that long?
        Answer. NRC believes that dose estimates beyond 10,000 years become
    increasingly speculative to the extent that they are not especially
    valuable in regulatory decision making.
        Although models can estimate higher doses at 300,000 years or
    greater, assumptions used in making these estimates are also highly
    speculative. For example, these higher dose estimates incorporate the
    effects of multiple glacial cycles on infiltration into the repository
    and flow and transport of radionuclides, while not considering, by
    necessity, technological changes in society and changes in living
    habits that would occur in response to these climate changes or
    mitigate the effects of such climate changes.
        Nevertheless, NRC believes that analyses of repository system
    performance for time periods greater than 10,000 years will be
    performed and that, although they should not be used as a compliance
    measure, they will provide insight into the performance of individual
    barriers of a repository system. Using these analyses to evaluate the
    ability of individual barriers to isolate waste will build confidence
    in the adequacy of the entire system.
        With respect to the 10,000 year regulatory compliance period used
    in NRC's proposed 10 CFR Part 63, both technical and policy
    considerations were taken into account. A 10,000 year compliance period
    is appropriate because it includes the period when the waste is
    inherently most hazardous. The inherent radiological hazard of spent
    fuel decreases rapidly and significantly during the initial 10,000
    years primarily due to the decay of short-lived fission products. At
    10,000 years after waste emplacement, the relative radiological hazard
    is within a factor of ten of the hazard posed by a quantity of 0.2
    percent uranium ore, equivalent to typical ore grades that are mined
    and processed to produce the fuel used in reactors. Beyond 10,000
    years, the relative hazard of the disposed waste diminishes very slowly
    over several hundreds of thousands of years, because decay at such late
    times is controlled by the activity of longer-lived radionuclides.
        In addition, a 10,000 year compliance period is appropriate because
    it is sufficiently long, to include a wide range of conditions (e.g.,
    seismic events, fault movement, climate variation) which will challenge
    the engineered and natural barriers, providing a reasonable evaluation
    of the robustness of the geologic repository. Additionally, the
    Commission expects that in conducting its performance assessment, DOE
    will account for the susceptibility to early failure of some fraction
    of the more than 7,000 emplaced canisters (e.g., attributable to
    manufacturing defects), and evaluate the ability of the geologic
    barriers to limit exposures.
        A 10,000 year compliance period also is consistent with other
    regulations involving geologic disposal of long-lived hazardous
    materials, including radionuclides. EPA has already codified a 10,000
    year compliance period at 40 CFR 191 applicable to the Waste Isolation
    Pilot Plant, a similar type of disposal system as that proposed at
    Yucca Mountain. A 10,000 year compliance period is also referenced in
    EPA guidance on no-migration petitions for facilities seeking exemption
    from certain land-disposal restrictions for long-lived hazardous,
    nonradioactive materials.
        Question 5. Sec. 205(d)(2) of H.R. 45 states that ``The Commission
    shall assume that, following repository closure, the inclusion of
    engineered barriers and the Secretary's post-closure actions at the
    Yucca Mountain site, in accordance with subsection (b)(3), shall be
    sufficient to . . . (B) prevent any increase in the exposure of
    individual members of the public to radiation beyond allowable limits
    as specified in paragraph (1).'' Do you think this provision would, as
    suggested in EPA's testimony, require NRC to find that the radiation
    release standard would be met, regardless of evidence from modeling or
    other scientific studies?
        Answer. The NRC has a different understanding than the view
    expressed in the EPA testimony.
        The Commission agrees with the referenced portion of H.R. 45
    because it provides flexibility to NRC in its determination of
    protection of public health and safety regarding human intrusion into
    the repository.
        The EPA testimony suggested that the Sec. 205(d)(2) of H.R. 45
    applies to meeting the release standard for all post-closure analyses.
    NRC believes this is an incorrect interpretation of H.R. 45. NRC
    understands Sec. 205(d)(2) of H.R. 45 to refer only to the evaluation
    of human intrusion.
        Question 6. Are the site characterization studies of Yucca Mountain
    that have been conducted to date sufficient for a license application
    for a permanent repository at Yucca Mountain?
        Answer. No. The NRC, having reviewed DOE's Viability Assessment
    (VA), believes that additional data and analyses are necessary to
    ensure that a License Application, if provided, would be complete and
    of high-quality.
        In its VA, the DOE recognizes the need for additional site
    characterization and design confirmation data and analyses so that it
    will be able to provide a complete and high quality postclosure safety
    case in a license application. The DOE, also in the VA, has
    specifically identified those aspects of the repository system that
    need additional data based on the results of a total system performance
    assessment.
        Although the NRC and the DOE are in agreement on many aspects of
    what is needed, we plan to provide comments to them in the near future
    on how much additional information is needed in particular topical
    areas in the NRC review of the VA and future updates of the NRC Issue
    Resolution Status Reports.
        Question 7. Please describe the quality assurance deficiencies in
    the DOE site assessment program and explain how these deficiencies, if
    not corrected, might result in an incomplete or unacceptable license
    application.
        Answer. Although NRC staff has reviewed and accepted the DOE
    Quality Assurance (QA) program, the DOE has consistently had problems
    implementing the program. Deficiencies identified during DOE audits and
    surveillance of its suppliers raised the issue of whether the data and
    products produced by these suppliers will be acceptable and
    appropriately qualified for licensing. Some data in the Management and
    Operating Contractor's (M&O) technical data base have been determined
    to be unqualified, not traceable, inaccurate, or indeterminate based on
    various deficiencies which have also surfaced as a result of DOE
    audits. The Technical Basis Document, which supports the Viability
    Assessment (VA) Total System Performance Assessment, indicates that a
    major portion of the data supporting the VA is not qualified. DOE's
    License Application (LA) Plan does not recognize the current situation
    with regard to implementation of its QA program and the activities
    needed to address it.
        To obtain authorization to construct a HLW repository, the DOE must
    be able to demonstrate in its LA that data, analysis, and designs of
    barriers and systems important to safety or waste isolation meet QA
    requirements of Appendix B to 10 CFR Part 50.
        The QA program applies to all systems, structures, and components
    important to safety and waste isolation. Confidence in the DOE
    demonstration that public health and safety will be protected is based,
    in part, on the confidence in the adequacy of data, data analyses,
    construction activities, and other items and activities associated with
    the LA which are obtained through a QA program.
        We understand that the DOE management agrees with the need for
    improving the QA program and is moving aggressively to make the
    necessary upgrades prior to submitting its license application. Our
    staffs continue to work together to address these important issues.
                                     ______

                               Wisconsin Electric Power Company
                                                         March 15, 1999
    The Honorable Joe Barton
    Chairman
    Subcommittee on Energy and Power
    Room 2125
    Rayburn House Office Building
    Washington, DC 20515-6115
        Dear Chairman Barton: In response to your letter of February 26,
    1999, I have attached answers to additional questions posed by Mr.
    Markey. If there is any additional assistance I can provide to the
    Subcommittee, please do not hesitate to contact me.
                Sincerely,
                                               Richard A. Abdoo
                      Chairman of the Board and Chief Executive Officer
    Answers by Mr. Richard Abdoo to Follow Up Questions From Mr. Markey for
                                   the Record
        Question 1. Your concern, if I understand it, is that if DOE
    schedules slip again, if the State of Wisconsin does not allow you to
    expand on-site storage, and if no other storage options are available
    to you then you would have to shut down the Point Beach plant. You
    state that you already have approval for 12 dry casks. Is it correct
    that the current storage pad for the casks can fit up to 48 casks, and
    that the Environmental Impact Statement, which was the basis for
    approval of the first 12 casks, covers 48 casks? Would 48 casks allow
    Point Beach to operate through the end of its license?
        Answer 1. The Wisconsin Electric storage facility at Point Beach
    power plant is sized to accommodate 48 casks and the Environmental
    Impact Statement for Point Beach does cover 48 casks. Those 48 casks
    would allow Point Beach to operate through the end of the licenses for
    both units at the plant.
        Question 2. In your latest Annual Report you inform your
    shareholders, without mentioning the word ``shutdown,'' that Point
    Beach ``has sufficient temporary storage to complete the scheduled fall
    2003 Unit 1 refueling outage,'' and in your latest Quarterly Report you
    describe plans to apply ``in the spring of 1999 for authority to load
    additional casks.'' If you are concerned about a shutdown, why have you
    not directly told your shareholders of the possibility of a shutdown of
    more than 20% of your electricity generating capacity and analyzed for
    them the potential financial consequences?
        Answer 2. Wisconsin Energy, the holding company whose principle
    subsidiary is the Wisconsin Electric Power Company, informed
    stockholders twice in 1998 that it only had sufficient storage for
    spent nuclear fuel at its Point Beach plant for operations through the
    year 2003. On April 3, 1998, in the Annual Financial Statements and
    Review of Operations that accompanied the Chairman's letter and Proxy
    Statement to shareholders and again in the 10-Q report from September
    of 1998, shareholders were informed of the spent fuel storage and
    disposal situation at Point Beach. Shareholders were informed of the
    operational ability that existing approved storage provided and were
    also informed of the plans at that time to seek additional storage
    approval from the State of Wisconsin to assure continued operation
    beyond the year 2003. Further, shareholders were also informed that
    Wisconsin Electric was ``unable to predict when the DOE will actually
    begin accepting spent nuclear fuel'' and that President Clinton
    threatened to veto legislation that would have established a temporary
    spent fuel repository in the State of Nevada but that the matter, at
    that time, was pending. Wisconsin Electric has every intention of
    pursuing all reasonable options to deal with our spent fuel storage
    situation so that Point Beach can continue to operate beyond 2004.
    Indeed, my testimony stated that, ``We are exploring all reasonable
    options to keep the Point Beach plant operating by obtaining sufficient
    storage capacity for the spent nuclear fuel, and we are in a situation
    where we must explore all options in the hopes that one of them will
    succeed.'' This is our message to the House of Representatives and it
    is our message to shareholders in our statements to them.
                                     ______

                                         Office of the Governor
                                                         March 12, 1999
    The Honorable Joe Barton
    Chairman, Subcommittee on Energy and Power
    U.S. House of Representatives
    Committee on Commerce
    Room 2125, Rayburn House Office Building
    Washington, D.C. 20515-6115
        Dear Congressman Barton: Attached please find my response to the
    question posed by Congressman Markey of the subcommittee. If you or any
    other member of the subcommittee have any additional questions, please
    do not hesitate to contact me.
                Sincerely,
                                                 Kenny C. Guinn
                                                               Governor

        Question for Governor Guinn: The Nuclear Energy Institute, in its
    testimony, states that the radiation standard for Yucca Mountain in
    H.R. 45 ``ensures the same level of public safety as the Nevada State
    radiation protection standard.'' Is this correct?
        Response: Nevada as an agreement state under the regulations of the
    Nuclear Regulatory Commission, has adopted the Commission's radiation
    standard for the entire nuclear fuel cycle. That standard for the
    entire nuclear cycle from mining uranium through disposal, is 100
    milirem. The Nuclear Regulatory Commission has apportioned 25% of this
    standard to waste disposal, or 25 milirem, which exceeds the standard
    proposed in H.R. 45 by a factor of 4.
                                     ______

          United States Environmental Protection Agency
                                    Office of Air and Radiation
                                                         March 11, 1999
    The Honorable Joe Barton
    Chairman, Subcommittee on Energy and Power
    Committee on Commerce
    U.S. House of Representatives
    Washington, D.C. 20515
        Dear Mr. Chairman: Enclosed, for insertion into the hearing record,
    are the Environmental Protection Agency's (EPA's) responses to follow-
    up questions from the February 10, 1999 hearing on H.R. 45, the Nuclear
    Waste Policy Act of 1999 before the Subcommittee on Energy and Power. I
    hope this information will be useful to you and Members of the
    Subcommittee.
        Thank you for providing EPA the opportunity to testify on this
    important issue. I trust that the enclosed information is helpful to
    you. Please feel free to contact me if you have further questions.
                Sincerely,
                                              Robert Perciasepe
                                                Assistant Administrator
    Enclosure

                     EPA'S Responses to Follow-Up Questions
        Question 1. When can we expect the EPA to release a draft rule on
    the radiation standard for Yucca Mountain? When does EPA intend to have
    the final rule completed?
        Response: The Agency expects to send a draft rule to OMB in March
    of this year. The final rule will be completed within a year of
    publishing the proposed rule.
        Question 2. The EPA testimony often cites the NAS report on
    radiation. The NAS report criticized EPA's approach toward human
    intrusion, stating ``we conclude that it is not possible to assess the
    probability of human intrusion into a repository over the long term,
    and we do not believe that it is scientifically justified to
    incorporate alternative scenarios of human intrusion into a risk-based
    compliance assessment.'' This statement directly conflicts with your
    testimony (page 8). Please explain this inconsistency.
        Response: The NAS report strongly supported the principle that
    there must be an analysis of the consequences of human intrusion as
    part of the licensing process for Yucca Mountain. The report stated
    that EPA should assume that human intrusion will occur (NAS Report p.
    111) and that EPA should require an assessment of the ability of the
    repository to retain the radionuclides at a safe level based upon a
    single scenario for that intrusion. (NAS Report p. 12) The NAS report
    recommended that EPA determine the human intrusion scenario during its
    rulemaking. (NAS Report p. 111) It is this recommendation that EPA was
    referring to in its testimony. H.R. 45 would eliminate the need for
    such an analysis by requiring NRC to assume that institutional controls
    at the site would prevent human intrusion or any action which would
    cause the radiation dose standard to be exceeded. H.R. 45 is thus
    inconsistent with the recommendations of the NAS report.
        The section you quoted refers to the NAS report's recommendation
    that EPA not use in its Yucca Mountain Standard the same approach to
    human intrusion that EPA used in analyzing human intrusion at the Waste
    Isolation Pilot Plant (WIPP). In the WIPP analysis, EPA directed DOE to
    take the current drilling rates in the geologic area where the WIPP is
    located and to assume that those rates of intrusion would continue to
    occur in the future. EPA and DOE used an approach that randomly placed
    intrusion events in space and time, based on the rate of drilling
    events (number of intrusions per square kilometer per 100 years). In
    its Yucca Mountain rulemaking EPA is considering the best method for
    analyzing human intrusion at Yucca and is looking at alternatives to
    the approach it used at WIPP.
        Question 3. There is also an inconsistency with the NAS on the
    question of an appropriate starting point for setting a radiation
    standard. On page 5 of your written statement, EPA claims that the NAS
    ``suggested that the starting point for standard setting is consistent
    with a standard of 2 to 20 millirem/year,'' citing page 49 of the NAS
    report. The tables 2-3 and 2-4 referenced in the NAS report clearly
    indicate that a standard of 25 millirem (corresponding to a risk of
    10-5) is in widespread use domestically and internationally.
    It appears that EPA intentionally mischaracterized the NAS
    recommendations in order to avoid endorsing the widely-accepted 25
    millirem standard. Please explain this discrepancy.
        Response: The NAS did not directly suggest a starting point of 2 to
    20 millirem/yr; it said that EPA should start by looking at a standard
    with an annual risk limit of 10-6 to 10-5. In our
    testimony we converted this annual risk to an annual dose level to
    simplify comparisons with the standard in H.R. 45 and other dose based
    standards. In making that conversion, we used a conversion factor (5
    chances in 100 of developing a fatal cancer for each ``sievert'' of
    dose) which the NAS cited on p. 47 of its report. Using that conversion
    factor, 2 to 20 millirem is the equivalent of the NAS risk range. This
    range is calculated as follows: First, each sievert is converted into
    rem (there are 100 rem per sievert), so that one rem represents a risk
    of 5 in 10,000 (5 x 10-4). Second, there are 1,000 millirem
    per rem, so the risk per millirem is 1,000 times less per rem (or 5 x
    10-7). Therefore, the risk from 2 millirem is calculated as
    2 x 5 x 10-7 or 10 x 10-7, which is 1 x
    10-6. The risk from 20 millirem is ten times more or 1 x
    10-5.
        The Agency accurately characterized the NAS recommendations. The
    only 25 millirem limit in tables 2-3 and 2-4 is EPA's original High
    Level Waste Disposal Standards (40 CFR 191) which EPA promulgated in
    1985 and a Court vacated in 1987. However, that limit was based on
    outdated dosimetry and was summarized (to an unintentionally misleading
    effect) in the NAS report. In fact, that standard was 25 millirem to
    the whole body plus 75 millirems to any critical organ. While H.R. 45
    does not state the type of millirem it is using, EPA assumed that it
    was a millirem effective dose equivalent, which are the units used in
    all standards currently being promulgated in the U.S. In order to
    provide equivalent protection to the public, in its 1992 rulemaking
    repromulgating 40 CFR 191, EPA established a new standard of 15
    millirem effective dose equivalent. So, while the numeric value is
    lower, the underlying risk is the same. Also, please note that
    according to Table 2-3, the Nuclear Energy Agency, Canada, the Nordic
    countries, Spain, Switzerland, and the United Kingdom all have dose or
    risk limits below 15 millirem. The only country cited above the NAS
    range is Germany.
        Question 4. The NRC explained at the hearing that the 100 millirem
    standard, as defined in H.R. 45, would be applied in practice at the 25
    millirem level to members of the critical group population. Does that
    change EPA's objection to the standard proposed in H.R. 45?
        Response: No, for several reasons. First, the bill could be
    misconstrued as a Congressional endorsement of a too lenient standard
    for radiation protection. Although NRC says that it will implement the
    legislation at 25 millirem, Congress would have endorsed a higher limit
    with the passage of H.R. 45. Second, a 15 millirem limit was applied to
    WIPP and it met that standard. Our success with WIPP shows that a
    properly designed facility, reasonably implemented, works and is still
    protective of public health. Third, we do not believe that there is a
    reason to allow higher exposure levels for Nevada citizens than for
    citizens of New Mexico and the rest of the country. Since the people of
    Nevada must accept a facility that no one else wants, we should provide
    them with the same level of protection that the rest of the country
    receives from other regulated facilities.
        Finally, and perhaps most importantly, under H.R. 45, the level of
    the individual protection is meaningless because it is unenforceable.
    Section 205(d)(2) requires NRC to assume compliance regardless of the
    actual limit. That section states: ``The Commission shall assume that,
    following repository closure, the inclusion of engineered barriers and
    the Secretary's post-closure actions at the Yucca Mountain site, in
    accordance with subsection (b)(3), shall be sufficient to . . . (B)
    prevent any increase in the exposure of individual members of the
    public to radiation beyond allowable limits as specified in paragraph
    (1).'' Therefore, the NRC must, by law, assume that no violation of the
    standard occurs. If the standard cannot be violated, the site cannot
    fail and the actual level of the standard is of no consequence. EPA
    believes any attempt by NRC to try to enforce any standard would be
    overturned in the courts because subparagraph 205(d)(2)(B) tells NRC to
    assume that no individual receives a dose in excess of the
    environmental standard set by Congress or the NRC under paragraph
    205(d)(1). Paragraph 205(d)(1) sets the 100 millirem standard and gives
    NRC the ability to replace it with a 25 millirem standard.
                                     ______

          United States Environmental Protection Agency
                                    Office of Air and Radiation
                                                         March 25, 1999
    The Honorable Joe Barton
    Chairman, Subcommittee on Energy and Power
    Committee on Commerce
    U.S. House of Representatives
    Washington, D.C. 20515
        Dear Mr. Chairman: Enclosed, for insertion into the hearing record,
    are the Environmental Protection Agency's (EPA's) responses to
    additional questions from Representative Edward Markey from the
    February 10, 1999 hearing on H.R. 45, the Nuclear Waste Policy Act of
    1999 before the Subcommittee on Energy and Power. I hope this
    information will be useful to you and Members of the Subcommittee.
        Thank you for providing EPA the opportunity to testify on this
    important issue. Please feel free to contact me if you have further
    questions.
                Sincerely,
                                              Robert Perciasepe
                                                Assistant Administrator
    Enclosure
             EPA'S Responses to Follow-up Questions for the Record
        Question 1. Models suggest that maximum radiation exposure from
    repository releases would occur after roughly 300,000 years. Do you
    think radiation standards should extend to the time of the predicted
    maximum dose? What do the NAS recommendations, on which EPA's standard
    are based, say concerning the length of time to consider?
        Response: The NAS recommended that the time over which compliance
    should be assessed be ``the time when the greatest risk occurs, within
    the limits imposed by long-term stability of the geologic environment''
    (NAS Report p.7). The NAS defined this as ``. . . a time scale that is
    on the order of 10\6\ years at Yucca Mountain'' (NAS Report p. 55). The
    NAS also made it clear, however, that it made this recommendation upon
    technical, not policy, considerations. We have considered several
    alternatives for the compliance period as we develop our proposed
    standard, among those is the time to peak dose within the period of
    geologic stability recommended by the NAS. As NAS also recognized, we
    must consider both the technical and policy issues associated with
    establishing the appropriate compliance period for the performance
    assessment of the Yucca Mountain disposal system. We will consider all
    factors--technical, legal and policy--as we establish the most
    appropriate compliance period in our final regulation.
        Question 2. Please identify the areas in which the radiation
    standards in H.R. 45 differ from the Congressionally mandated NAS
    recommendations for Yucca Mountain radiation protection standards,
    including dosage, population, length of time, release causes,
    assumptions, and any other differences.
        Response:
    Level of Protection
        The NAS recommended a starting point for standard setting be an
    annual risk limit of 10-\6\ to 10-\5\. The NAS
    noted that this range is consistent with other U.S. nuclear
    regulations, and is therefore appropriate as a ``reasonable starting
    point'' (NAS Report, at 49). In our testimony we converted this annual
    risk to a annual dose level, using the conversion factor suggested by
    the NAS, to simplify comparisons with the standard in H.R. 45 and other
    dose based standards. This annual risk is consistent with a dose rate
    in the range of 2 to 20 millirem/year.
        The 100 millirem/year in H.R. 45 is five times the upper risk limit
    recommended by the NAS. The 100 millirem/year is also inconsistent with
    international high level waste disposal standards which range from 5 to
    30 millirem/yr. H.R. 45 would provide less protection to Americans than
    that afforded to citizens of other industrialized nations.
    Length of Regulatory Compliance Period
        As explained in the response to the first question, the NAS
    recommended the period of compliance to be the time when the greatest
    risk occurs within one million years from disposal. DOE's December 1998
    Viability Assessment indicates that the peak dose would occur at about
    300,000 years.
        H.R. 45 establishes two regulatory time frames: (1) for the first
    1,000 years the standard ``will be met''; and (2) for the period from
    1,000 years until 10,000 years ``there is likely to be compliance''
    with the standard.
    Protected Population
        The NAS proposed using a ``critical group'' concept. The NAS
    defined this group to be ``representative of those individuals in the
    population who . . . have the highest risk resulting from repository
    releases. The group should be small . . .
    and . . . homogeneous with respect to risk'' (NAS Report p.53).
    Therefore, the NAS defined critical group can contain only those people
    who receive roughly similar doses. In this way, the standard is
    protective of the population as a whole because it applies to those
    individuals identified to have the highest level of risk.
        H.R. 45 identifies the exposed population as the ``average member
    of the general population in the vicinity of Yucca Mountain.'' This
    definition does not require that the group be either small or
    homogeneous with respect to risk. As explained in EPA's testimony,
    there are two concerns with this definition. First, the use of
    ``average member'' potentially allows those people closest to the
    facility to receive much greater risks than those who are at greater
    distances and/or who are not in the direct path of releases from the
    repository. Each person included in the ``average dose'' calculation
    who receives little or no exposure means that someone else can receive
    a much greater exposure. Second, the ``general vicinity of Yucca
    Mountain'' is undefined in H.R. 45. Currently, no one lives within
    twelve miles of the facility so the ``general vicinity'' would have to
    be at a considerable distance. This could be interpreted as meaning the
    largest population center near the facility which is about 75 miles
    away in Las Vegas. However, even assuming a much smaller 20 mile radius
    from the facility, more than 75% of the people within that radius would
    receive no exposure as they are not in the path of repository releases,
    but they would be included in determining the ``average'' exposure.
    Likewise, the remaining 25% of the people within this 20 mile radius
    are spread out over a distance of more than 8 miles and their doses can
    easily differ by an order of magnitude. Accordingly, the people living
    south of the site who receive the highest dose may receive as much as
    40 times the 100 millirem/year standard, a fatal cancer risk of 2 in
    25.
    Human Intrusion
        The NAS recommended ``. . . that EPA should specify in its standard
    a typical intrusion scenario to be analyzed for its consequences on the
    performance of the repository.'' (NAS Report p. 108). The NAS made this
    recommendation because it believed that, despite the difficulty of
    accurately predicting future human intrusion, it is important to
    analyze the possible impacts of such intrusion on the repository's
    ability to contain the radioactive materials. The NAS found it
    unreasonable to assume that a system for post-closure oversight, based
    on active institutional controls, will prevent intrusions or releases
    in excess of allowable radiation release limits.
        H.R. 45 ignores the NAS recommendation. Instead, H.R. 45 requires
    NRC in its licensing to assume that institutional oversight and
    engineered barriers ``will prevent any human activity at the site that
    poses an unreasonable risk of breaching the repository's . . . barriers
    . . .'' and will ``prevent any increase in the exposure individual
    members beyond allowable limits . . .''
        Question 3. Please estimate, roughly if necessary, how many people
    would die due to the repository if the maximum allowed exposure in H.R.
    45 occurred than if the maximum exposure in the EPA generic standards
    occurred. Please also explain any other health consequences from weaker
    standards.
        Response: We estimate that the lifetime risk of a person developing
    a fatal cancer as a result of exposure to 100 millirem/yr in H.R. 45 is
    about 2 chances in 1,000, or 1 chance in 500. This is more than six
    times the maximum lifetime risk of 3 chances in 10,000 established
    through the dose limit of 15 millirem/year in EPA's existing generic
    standards for disposal of spent nuclear fuel and high-level waste. As
    explained in the example for the response to the second question, the
    ``average member of the general public'' can result in exposures forty
    times the 100 millirem/yr standard or more than 200 times EPA's generic
    waste disposal standard.
        Unfortunately, it is difficult estimate how many deaths would occur
    if the releases from Yucca Mountain were at the exposure limit in H.R.
    45. Among the variables are the size of the ``general vicinity''
    identified in H.R. 45 (the larger the area, the more fatalities), the
    size of the population near Yucca Mountain (does it increase, decrease
    or stay the same) and the physical distribution of that population in
    the ``general vicinity.''
        However, the following would approximate what is expected if one
    assumes the affected group to be the approximately 10 people at Lathrop
    Wells and 1,000 people in the Amargosa Valley. These calculations also
    take into account that H.R. 45 and EPA's standards are implemented
    differently. That is, H.R. 45 establishes an exposure for the ``average
    member in the general population in the vicinity of the Yucca Mountain
    site,'' while EPA's standards limit exposure to the individual
    receiving the highest dose. If the population were to increase by a
    factor of 30, our best estimate is about 1 person would die under the
    EPA standard while about 60 would die if that population received the
    average exposure allowed in H.R. 45. It is important to understand that
    this is the number of deaths estimated in the first generation exposed
    to those levels from releases at Yucca Mountain. The number would need
    to be multiplied by the number of generations exposed to determine the
    total number of deaths.
        Question 4. Please provide a brief explanation of why radiation
    protection standards are usually set significantly lower than
    background radiation levels.
        Response: Environmental standards are designed to protect the
    public from the additional incremental risk that results from the
    regulated activity. Regulated activities, such as disposal at Yucca
    Mountain, typically result in some people being exposed to additional
    risk of cancer or other disease as a result of an activity which
    benefits others (in this case the users and producers of nuclear
    energy). Environmental regulations are designed to minimize this
    additional risk which is involuntarily imposed on other citizens.
        Numerous risk communication studies have shown the public is
    willing to accept higher levels of risk that are voluntarily imposed
    (e.g., smoking), while they are not willing to accept risks imposed by
    others (e.g., releases from the Yucca Mountain repository). EPA
    typically regulates in the range of 1 chance in 10,000 to 1 chance in
    1,000,000, a range the public is willing to accept from these
    involuntary risks. EPA's generic standard for disposal of spent fuel
    and high level waste is 15 millirem/year which is equivalent to a risk
    of 3 chances in 10,000, or at the upper bound of the acceptable range
    for involuntary risks.
        Question 5. If the Yucca Mountain facility meets H.R. 45's
    standards, would that adequately demonstrate to the public that the
    site is a safe location for a permanent repository?
        Response: No. As stated in EPA testimony, the individual lifetime
    risk of 1 chance in 500 of developing a fatal cancer at 100 millirem/
    year is unacceptably high. In addition, an equally important concern
    with this legislation is the way in which the standard would be
    implemented. The lack of a human intrusion analysis, the assumed
    adequacy of the effectiveness of engineered barriers and institutional
    controls, the lack of ground water standards and the preemption of
    environmental laws, and the short-circuiting of the NEPA process all
    contribute to an ineffective standard that virtually any location in
    the country could pass. H.R. 45 would set an inadequately protective
    standard, exclude public participation and would provide inadequate
    assurances that the repository will be safe.
        Question 6. Please list the fatal cancer risks from standards in
    the major federal environmental laws and compare to the risk from the
    standards in H.R. 45.
        Response: The following table identifies the allowable lifetime
    risk levels for various federal standards as well as the standard in
    H.R. 45. The chart indicates that the risk of fatal cancer imposed by
    the H.R. 45 standard would be clearly higher than all other
    environmental standards. The chart also shows that radiation standards
    are already set at higher risk levels than most chemical standards. The
    100 millirem/year in H.R. 45 at best allows more than 6 times the risk
    and at worst about 2000 times the risk of the other environmental
    standards listed below.
        Question 7. Is there any scientific reason to assume that human
    intrusion into the repository will not occur for at least 10,000 years?
    Is there any scientific reason to assume that the likelihood of human
    intrusion is much lower than the probability of other release
    scenarios?
        Response. No, EPA believes that there is no reason to assume that
    human intrusion will not occur for 10,000 years. It was NAS' opinion
    that human intrusion is plausible at Yucca Mountain and that
    institutional controls will not endure for more than a few centuries.
    The NAS concluded that the standards should, therefore, include
    consideration of the effects of human intrusion. The NAS thus
    recommended that the standard assume that an intrusion will occur and
    that EPA specify an intrusion scenario to evaluate the ``resilience''
    of the repository.
        There are two ways in which releases from the repository could
    occur. Either through undisturbed scenarios (natural events and
    processes) or disturbed scenarios (human intrusion). The undisturbed
    releases are a certainty and therefore are not based on probability; it
    is merely a matter of when it will occur and how much radiation will be
    released. Human intrusion scenarios are based both on the probability
    and the consequence of that intrusion. The NAS noted that it would not
    be possible to quantify the probability of human intrusion since it
    would be based on unknowable factors. Since it would be impossible to
    predict when a human intrusion event would occur, the NAS recommended
    it not be included in the undisturbed repository analysis. However
    should one occur, the releases from the repository and the impact on
    public health could be greater than that from any undisturbed release.
    The NAS therefore recommended the standard include and specify a type
    of intrusion analysis to assess the performance of the repository when
    such an intrusion occurs.
    [GRAPHIC] [TIFF OMITTED] T5151.001

                      THE NUCLEAR WASTE POLICY ACT OF 1999

                                  ----------

                             FRIDAY, MARCH 12, 1999

                      House of Representatives,
                                 Committee on Commerce,
                              Subcommittee on Energy and Power,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 9 a.m., in
    room 2123, Rayburn House Office Building, Hon. Joe Barton
    (chairman) presiding.
        Members present: Representatives Barton, Burr, Whitfield,
    Norwood, Shimkus, Shadegg, Pickering, Bliley (ex officio),
    Hall, Markey, Pallone, Gordon and Dingell (ex officio).
        Also present: Representatives Gibbons and Barrett.
        Staff present: Kevin Cook, science advisor; Joe Kelliher,
    majority counsel; Rick Kessler, majority professional staff;
    and Sue Sheridan, minority counsel.
        Mr. Burr [presiding]. The hearing will come to order. The
    Energy and Power Subcommittee, in our continuing efforts to try
    to hear everything we can about nuclear waste, once again, we
    will try to find answers to questions. We welcome Secretary
    Bill Richardson from the Department of Energy.
        At this time the Chair would recognize the chairman of the
    full committee for any opening statement he might have.
        Chairman Bliley. Mr. Chairman, since there are no votes
    today, and I know that members have travel plans, I also know
    that the Secretary has a lot of things to do, I would ask
    unanimous consent to put my statement in the record and also
    make a unanimous consent request that all members may put
    opening statements in the record.
        Mr. Burr. Without objection. All members' opening
    statements will be made a part of the record.
        [The statements follow:]
    Prepared Statement of Hon. Cliff Stearns, a Representative in Congress
                           from the State of Florida
        Thank you, Mr. Chairman. I am pleased to have Secretary Richardson
    with us today. I know many of us have questions regarding the
    Administration's position on H.R. 45. Like many of other subcommittee
    members, I am also interested in learning of the Secretary's views on
    alternative approaches to interim storage. Finally, I would like to
    discuss with the Secretary DOE's funding strategy for the permanent
    repository program.
        In the Secretary's testimony before the Senate Energy and Natural
    Resources Committee on February 25, 1999, Secretary Richardson
    reiterated his opposition to placing an interim storage site at Yucca
    Mountain prior to making a site decision based on sound science. He
    also stated that DOE is considering alternatives to interim storage,
    including taking title to the wastes and accelerator transmutation.
        I would like the Secretary to explain to us his Department's new
    proposal for taking title to spent nuclear fuel at nuclear power
    facilities and providing reimbursement of costs to the utilities.
    Hopefully he can tell us how it might affect the current federal
    program for safely disposing of the nation's spent nuclear fuel and
    defense nuclear waste. I would also like the Secretary to explain to us
    in more specific terms the transmutation option. Unless that
    transmutation facility is located at a permanent repository site, I am
    concerned that we then run into the same difficulties encountered in
    siting interim storage and permanent repository facilities.
        The Secretary in the past stated that transportation is a reason to
    not proceed with interim storage. I would like to know his views on the
    safety of transportation. Are there unique aspects about the proposed
    transportation of spent nuclear fuel and defense nuclear waste to a
    repository at Yucca Mountain that would lead to the expectation that it
    would be more or less safe than the current transportation operations?
        I understand that DOE needs about $10 billion in funding during FY
    2000-2010 to finish a nuclear waste repository by 2010. However, if we
    look at DOE's usual appropriations level of $350 million per year, DOE
    may receive only about $4 billion to construct such a repository. With
    such a shortfall it seems unlikely that a repository would open by
    2010. That, of course would lead to increased potential liability for
    the federal government in lawsuits filed by State regulators and
    utilities. I hope the Secretary will be able to provide our
    subcommittee with a plan to address the funding shortfall, and thus
    avoid any resulting problems.
        Again, I appreciate that Secretary Richardson is here to discuss
    these issues with us. I look forward to his testimony. Thank you.
                                     ______

     Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
        Mr. Chairman, I commend you for your dedication to solving the
    problem of high-level nuclear waste, and for your persistence in urging
    Secretary Richardson to testify before the Committee. Secretary
    Richardson's input is essential to our progress on H.R. 45.
        Mr. Secretary, it is good that you are here. I realize that you
    face many other problems, including a national security crisis. By
    comparison, it may seem that the problem of nuclear waste can be put
    off until tomorrow or the day after.
        Mr. Secretary, do not make the same mistake some of your
    predecessors have made. This issue is a top priority. On January 31,
    1998, the Department failed to meet its statutory and legal obligation
    to begin accepting spent nuclear fuel. As a consequence of that
    failure, the federal government is now facing an enormous liability.
    Someone, either the electricity ratepayer or the general taxpayer, will
    have to pay for the consequences of this failure. Every day that passes
    without a solution to this problem, this liability grows.
        We are here today to solve this problem and avoid a showdown over
    nuclear waste. Your presence here before the Committee is a promising
    start.
        At the end of January, Chairman Barton and I signaled our intention
    to move forward with legislation to resolve the nuclear waste problem.
    I am troubled that it has taken seven weeks, and several invitations to
    you, to hear that you are now ready to begin the dialogue. The American
    people deserve better than that. I hope you are prepared to share with
    us today some details, some substance on how the Department intends to
    address the nuclear waste problem, especially in light of the
    Department's mounting legal liability. We welcome your constructive
    views. However, the time for ``beginning the dialogue'' has long
    passed, and the time is here to put some substantive solutions on the
    table for our consideration.
        We must also address the funding situation for the permanent
    repository. The Department has repeatedly said, in Congressional
    testimony and in public statements, that the permanent repository will
    begin operations in the year 2010. What the Department has not been
    telling us is how it would obtain the funding necessary to meet this
    2010 milestone. Based on information provided by your Department, there
    are several years in the next decade when the Department will require
    funding far in excess of what you have historically been able to obtain
    through the appropriations process. In fact, for fiscal years 2005
    through 2009, the permanent repository will require over one billion
    dollars in each fiscal year. Yet the total appropriations for this
    program have been far less, typically down around $370 million
    annually. How you expect to triple the rate of appropriations to this
    program, without violating appropriations caps and budget rules, is a
    mystery to me.
        The problem is not just yours to solve. After all, Congress imposes
    the caps on appropriations, sets the budget rules, and establishes
    statutory limits on the amounts the ratepayers must contribute. All of
    these factors constrain the size of the appropriations for the program.
    But, Mr. Secretary, I expect you to be candid with us about this
    problem--under current funding levels and your own cost estimates, DOE
    will not be able to open the permanent repository in 2010. I urge you
    to be constructive as well--if you have some legislative solutions in
    mind to address this problem, now is the time to share those with us.
    Together, we can solve this funding problem so that the permanent
    repository opens in 2010, but you first have to come forward and
    acknowledge that the 2010 date is not possible without major changes to
    the program budget.
        Mr. Chairman, I look forward to the testimony of Secretary
    Richardson. Let's hope what he has to tell us was worth waiting for.
                                     ______

    Prepared Statement of Hon. Karen McCarthy, a Representative in Congress
                           from the State of Missouri
        I would like to commend the Chairman for extending an invitation to
    my good friend and our former colleague, Bill Richardson, who shoulders
    the primary responsibility for this critical issue. In addition, I
    would like once again to thank Secretary Richardson for his recent
    visit to the Kansas City area to tour the Allied Signal plant.
        At the Subcommittee's February 10 hearing, questions were raised by
    witnesses from the Department of Energy and the Justice Department
    regarding the adequacy of the funding mechanism in H.R. 45.
    Specifically, Mr. Lake Barrett Acting Director of the Office of
    Civilian Radioactive Waste Management of the Department of Energy
    testified that the funding mechanism is no longer sufficient to provide
    for an interim storage facility without further delaying completion of
    the permanent repository. Mr. Stuart Schiller Deputy Assistant Attorney
    General of the Justice Department, in turn, raised serious concerns
    about the liability of the Department of Energy and/or the liability of
    American taxpayers given the recent decisions by the federal courts
    regarding the Department's failure to begin acceptance of spent nuclear
    fuel.
        I am hopeful that this hearing will shed light on the recent
    proposal for the Department of Energy to take title to the spent fuel
    onsite at utilities' reactors. I am specifically interested in learning
    how this proposal will mitigate liability and shore up funds for the
    permanent repository. I am also interested in teaming whether or not
    legislation will be needed should the Administration move forward with
    taking title of the spent fuel. Finally, I would like to learn what
    legislation would need to include in order to come to the most
    satisfactory result on this vital issue. I would encourage that any
    future action be built upon a consensus for action. Such a consensus
    must include all stakeholders in the process in order to be meaningful.
        Great strides on this critical issue have been made. We still have
    much work to complete. I am confident that Secretary Richardson, will
    outline the Administration's plans to handle the Department's liability
    in meeting its obligation to dispose of the spent fuel it is legally
    obligated to handle.

        Mr. Burr. The Chair would recognize the ranking member from
    Michigan for any type of opening statement, Mr. Dingell.
        Mr. Dingell. Mr. Chairman, thank you. I am grateful to you
    for recognizing me. I will try and be as brief as possible. I
    will ask unanimous consent to put my full statement in the
    record.
        Mr. Burr. Without objection.
        Mr. Dingell. Mr. Chairman, I want to welcome the Secretary
    and thank him for being here. It is important that he be
    present to discuss the Department's nuclear waste repository
    program. As a former member of the Commerce Committee, Mr.
    Secretary, we know you understand that this program has not
    operated as it should at all times. The program has been put
    under significantly sounder footing today than it was formerly,
    and it is important that the Congress not undermine the
    progress.
        Mr. Chairman, as all know, I have been a strong supporter
    of legislation directing DOE to build both a permanent storage
    facility in Nevada and an interim storage facility there. These
    are necessary and complementary regrettably, because there has
    been so much delay in addressing the overall problem. I believe
    that the enactment of legislation of this kind would enable the
    Department to commence accepting waste as soon as possible.
        That approach has regrettably been opposed by the
    President, and differences of opinion exist on this matter. It
    is important, however, that discussions of the problems
    affecting the repository program and solutions take place at
    the earliest possible time, and for that reason I am
    particularly pleased, Mr. Secretary, you are here.
        I would observe that there are major problems not only with
    the acceptance of title, but also the slowness with which the
    program has gone forward, difficulty in getting agreement with
    regard to what should constitute the final program and form,
    and difficulty in achieving any expectation as to when this
    program, both with regard to the temporary and with regard to
    the permanent storage program, can be completed.
        There is also a very large Tucker Act liability for the
    Federal Government. And I want to stress that. The amount that
    we have heard mentioned is on the order of billions of dollars,
    billions of dollars in liability to the taxpayer if this matter
    is not correctly and speedily addressed. It will require not
    only the best work of this committee and our colleagues in the
    Senate, but also of the administration.
        It will in like fashion require the necessary cooperation
    of the industry. And I would just tell my friends in industry
    that without their full cooperation on addressing the Tucker
    Act problems, it will be very difficult to get legislation out
    of this committee to address the problems of either temporary
    storage or a permanent repository. And I hope all in the
    industry are listening to that.
        The cost and the danger to the taxpayer here are then
    significant, and I hope that all will address this with more
    than casual concern. I am grateful to you for your willingness
    to explore the new approaches, Mr. Secretary, to what you have
    expressed as the nuclear utilities' serious concerns about
    nuclear waste disposal. The costs of temporary storage weigh
    level on the companies and heavily on the ratepayers who have
    contributed billions of dollars to the Nuclear Waste Fund over
    the past 15 years. This money is now being diligently
    dissipated by the budgeteers and by the Appropriations
    Committee to the detriment not only of the interests of the
    Department, but also the interests of the industry, the
    interests of the American ratepayers and, very frankly, to the
    detriment of our attempts to resolve the questions which
    confront us here.
        In any event, I am delighted you are here, Mr. Secretary.
        I thank you for your courtesy to me, Mr. Chairman, and I
    hope that we will have a successful consideration of this
    matter, which will lead to a full and an open discussion of all
    of the questions which confront us today.
        Thank you, Mr. Chairman.
        [The prepared statement of Hon. John D. Dingell follows:]
        Prepared Statement of Hon. John D. Dingell, a Representative in
                      Congress from the State of Michigan
        I am pleased that the Secretary is appearing before the
    Subcommittee today to discuss the Department's nuclear waste repository
    program. Mr. Secretary, you bear the heavy responsibility of keeping
    the repository program on track. You also are the Administration's
    point man on the legislative front, and I am glad to have you with us
    today.
        As a former member of the Commerce Committee, you know that this
    program has not always operated as it should. However, the program has
    been put on somewhat sounder footing today and it is important that
    Congress not undermine this progress.
        As you know, I have been a strong supporter of legislation
    directing DOE to build an interim storage facility in Nevada, as a
    complement to the repository program, to enable the Department to begin
    accepting waste as soon as possible. This approach has been strongly
    opposed by the President, and those differences of opinion may persist.
    However, it is very important that discussions of the problems
    affecting the repository program--and possible solutions--do take place
    and I hope you will be able to take part.
        At the Subcommittee's February 10 hearing, questions were raised by
    witnesses from DOE and the Justice Department about the approach taken
    in H.R. 45, which is based on legislation reported by this Committee
    during the past two Congresses. It is clear that circumstances have
    changed since the Committee last considered nuclear waste legislation.
        In particular, the Department of Energy testified that the funding
    mechanism in the bill is no longer sufficient to provide for an interim
    storage facility without further delaying the permanent repository. The
    Federal government is also facing billions of dollars in damages from
    lawsuits filed by utilities, and these suits must be addressed. Also,
    the Justice Department testified that in light of the recent Winstar
    case, the bill itself could open the government to further damages
    under the Tucker Act. I want you to know that I am concerned about
    these questions, and believe it is essential that members get the
    answers before proceeding to a markup.
        I also appreciate your willingness, Mr. Secretary, to explore new
    approaches to what you yourself have referred to as the nuclear
    utilities' ``serious concerns'' about nuclear waste disposal. The costs
    of temporary storage weigh heavily on these companies and their
    ratepayers, who have contributed billions of dollars to the Nuclear
    Waste Fund over the past 15 years. To date, these parties have received
    no benefit whatsoever, and it is understandable that they turned to the
    courts for relief. The courts have ruled DOE breached its contracts
    with the utilities, and billions of dollars in claims have been filed.
    The impact of these suits is difficult to judge at this point--if
    damages are paid out of the Nuclear Waste Fund, the repository program
    could be crippled. On the other hand, if damages are paid from the
    Judgment Fund, the taxpayer will pick up the tab. Neither of these is
    outcomes is desirable, and it would be irresponsible not to address
    this issue in any legislation.
        Mr. Secretary, I know that these judicial developments have caught
    your attention. That is something we have in common. The issues are
    very complex, and I look forward to hearing how the Administration
    plans to address them. There is room for cooperation between the
    Administration and the Congress, and I am willing to explore any
    options you can suggest.
        Mr. Secretary, I welcome you back to the Committee and look forward
    to your testimony.

        Mr. Burr. The gentleman's time is expired.
        The gentleman from Georgia Mr. Norwood.
        Mr. Norwood. Thank you, Mr. Chairman. I realize that you
    are after brevity, and I have a 1\1/2\ hour opening statement,
    so I will just place it in the record. But I wanted to thank
    the Secretary very much for being here and point out that I
    would associate my remarks with Mr. Dingell's remarks so that
    we all know that this is a very bipartisan hearing.
        And, last, I want to remind you, Mr. Chairman, this is the
    sixth time we have met on this, and I am wondering if there is
    some rule of the House if you have enough hearings, the job
    gets done. But this is our sixth one in 4 years and 2 months,
    and it is time, Mr. Secretary, for us to do what we need to do.
        [The prepared statement of Hon. Charlie Norwood follows:]
        Prepared Statement of Hon. Charlie Norwood, a Representative in
                       Congress from the State of Georgia
        Thank you, Mr. Chairman, for holding this hearing today on the
    nuclear waste problem in this country. Thank you as well, Secretary
    Richardson, for taking time out of your busy schedule to come before us
    today to discuss this important issue.
        Although we are talking about nuclear waste here, this is not
    nuclear science. This is a simple issue, with a simple solution. The
    bottom line is that the federal government has an obligation to take
    38,500 tons of spent nuclear fuel off the hands of the seventy or so
    nuclear power plants and defense sites around the country and store it
    in a safe, remote site. It has not done that and I still don't know why
    not.
        Back in 1982, Congress directed the Department of Energy to provide
    for the safe and permanent disposal of spent nuclear fuel and high-
    level radioactive waste. It gave it 16 years to get this done. It also
    gave the DOE a way to pay for it by imposing a tax on energy consumers.
        Now, 17 years later, the American taxpayers have paid almost $7
    billion in higher energy prices--Georgia taxpayers alone have paid over
    half a billion dollars--into the Nuclear Waste Fund. But what has the
    federal government done during that time? Studied the problem. Now they
    want ten more years and billions of dollars more to study the problem
    some more! And the DOE still can't say whether or not it will be ready
    to take the spent nuclear fuel by then.
        The one thing that I want to get from this hearing is: When will
    the Department of Energy begin taking nuclear waste out of the suburban
    and rural areas of this country and store it in a safe remote place
    like it's supposed to? It has the money, it has the technology, it has
    the location, it has had plenty of time. We have long passed the time
    for excuses; now it is time for action.
        Mr. Chairman, thanks again for holding this hearing today, and I
    look forward to hearing from the distinguished Secretary.

        Mr. Burr. The gentleman's time is expired.
        The Chair recognizes Mr. Brevity himself, the ranking
    member on the subcommittee, Mr. Hall.
        Mr. Hall. Mr. Chairman, I thank you for holding the
    hearing, and I realize you didn't do it, but you are acting
    chairman this morning, and we are honored to have you.
        Mr. Secretary, it is good to have you. It is always good to
    have one of our own come back, as you know. I sat by you it
    seemed like 14 or 16 years or something like that, and I
    understand the President sat by you on the way back last night
    and that you were late getting in, so that is all of the more
    gracious of you to come and give us your time today.
        When George Christian was selected as LBJ's press
    secretary, I sent him a note that I was really proud for him
    and everything. I said, you know, when someone that you know,
    as well as we know you and as I knew George, that gets
    appointed to a high position in government, you are always
    proud for your friend, but apprehensive for your government. We
    won't put that on you today, because we are not apprehensive
    about it with your background and everything. You have done a
    good job.
        Just very briefly, I think we appreciate your willingness
    to solve any flaws that are in this bill, and after the six
    hearings that the gentleman from Georgia said, it is time, I
    think, to move this bill and do something with it. We need to
    help our government live up to its obligations in the Nuclear
    Waste Policy Act, which you helped pass as a member of this
    committee.
        So my support of the nuclear industry is no secret, and it
    doesn't need repeating. I just welcome your participation here,
    and I thank you, and I hope we can come out with some good
    testimony to back good action of this committee in the not-too-
    distant future, because it is something we ought to do. It is
    something we said we would do, and I think it is something we
    will do.
        I yield back my time.
        [The prepared statement of Hon. Ralph M. Hall follows:]
    Prepared Statement of Hon. Ralph M. Hall, a Representative in Congress
                            from the State of Texas
        Thank you Mr. Chairman, I will be brief as we are anxious to hear
    from the Secretary of Energy and our former colleague, Mr. Richardson--
    guess you don't call cabinet secretary Bill.
        But I do thank you Mr. Chairman for agreeing to hold this essential
    hearing to further our efforts to deal with the issue of nuclear waste
    storage.
        And, Mr. Secretary we welcome you and greatly appreciate your
    willingness to be with us this morning after arriving back in
    Washington late last night from your trip with the President. But most
    of all, we appreciate your willingness to help us solve any flaws in
    our bill to provide for interim and permanent storage of our countries
    spent fuel waste; and help our government live up to its obligations
    under the Nuclear Waste Policy Act which you helped us with as a member
    of this committee.
        My position in support of our nuclear industry is no secret and
    does not need repeating. However, after two successful passages by the
    House of our bill--without the help of the Senate or Administration,
    time and the courts have taken a toll on our proposed solutions.
        We welcome your participation on behalf of the Administration to
    bring these nuclear waste storage issues to a conclusion--a conclusion
    that will not only bring honor to the government in living up to its
    contract, but benefit our environmentally clean nuclear industry and
    thereby the American people.
        Thank you Mr. Chairman.

        Mr. Burr. The gentleman's time is expired.
        The Chair would recognize Mr. Shimkus.
        Mr. Shimkus. Thank you, Mr. Chairman. I, too, want to
    welcome the Secretary. And I am also looking for, you know, a
    full question-and-answer period on the proposals. I think that
    you have kind of laid out initially--and I think that is
    positive--that we start having this discussion. I, too,
    associate myself with the remarks from the ranking member of
    all of his lists of concerns.
        As you know, Illinois has quite a large interest in this,
    receiving more electricity from nuclear energy, having more
    operating and closed facilities and more spent nuclear fuel and
    temporary storage than any State.
        But this is good. I appreciate you coming in and, again,
    with it being late last night, and I look forward to this
    hearing and I yield back my time, Mr. Chairman.
        Mr. Burr. The gentlemen's time is expired.
        The gentleman from Tennessee Mr. Gordon.
        Mr. Gordon. Thank you, Mr. Chairman. I will just quickly
    add my welcome to this Secretary to this very familiar room and
    acknowledge your special effort to get here today.
        Let me also quickly say that I really don't know of any
    Cabinet Secretary that has been confronted with so many
    simmering issues that you walked into and want to compliment
    you on trying to move forward with many of these important
    issues.
        I will have to say that I don't agree with your position in
    this case, but at least you put something on the table. At
    least the administration finally has a starting point so we can
    start talking, and I compliment you for that. And I am
    satisfied that reasonable folks can be able to sit down and
    finally get this worked out. So thanks for being here.
        Mr. Barton. The gentleman's time is expired.
        The gentleman from Arizona Mr. Shadegg.
        Mr. Shadegg. As a fellow Westerner, I welcome the
    Secretary, and I associate myself with the comments of Mr.
    Hall; both his pride and his concerns.
        A week ago today I was at Yucca Mountain, and I found it
    fascinating. I look forward to the testimony. I will put my
    full statement in the record, but I compliment you for being
    here this morning and having been in late last night. I look
    forward to the question-and-answer period.
        Mr. Barton. The gentleman's time is expired.
        Who else?
        The Chair would recognize Mr. Barrett for an opening
    statement.
        Mr. Barrett. Thank you, Mr. Chairman. And I appreciate you
    holding this hearing.
        I want to welcome my good friend Secretary Richardson back.
    It is good to see you back here. And I want to personally thank
    you for the work that you have done trying to address the
    problems that have occurred in my State, Wisconsin Electric,
    sort of at the head of the line with some of the issues that
    are presently before us in terms of what to do with its nuclear
    waste. And I think that the Department has been extremely
    constructive in trying to deal with their problems. And I think
    I can say that the company feels that you have made a good
    faith effort as well to deal with this issue, and I think that
    that is the type of constructive dialog that we need.
        I think that we will move a lot further toward addressing
    this problem in its totality by having your Department and,
    under your leadership, industry, environmental groups and
    consumers sit down. So I want to be here to thank you and let
    you know how much we appreciate that.
        Mr. Barton. The gentleman's time is expired.
        The gentleman from New Jersey Mr. Pallone.
        Mr. Pallone. Mr. Chairman, I would just submit my statement
    for the record, if I could, at this time. And I want to welcome
    the Secretary for being here today. He is one of my favorite
    people, not only because of the substantive work that he does,
    but also because of his sense of humor.
        And I have to tell you that I missed the opportunity when
    you came to New Jersey a couple of weeks ago with Congressman
    Rush Holt. I understand it was very good. He enjoyed it. And we
    appreciate the fact that you were willing to go over there in
    Princeton. Thanks, Bill.
        [The prepared statement of Hon. Frank Pallone, Jr.
    follows:]
      Prepared Statement of Hon. Frank Pallone, Jr., a Representative in
                     Congress from the State of New Jersey
        Mr. Chairman: I welcome this opportunity to review with Secretary
    Richardson his thoughts on how best to unravel what has become, over
    time, an ever more complicated issue--the dilemma of spent nuclear fuel
    and high level nuclear waste.
        As many of the members are aware, during the 104th Congress, I
    participated in the development of legislation (H.R. 1020) that was
    overwhelmingly supported both within the Commerce Committee and the
    House.
        A lot has changed since then.
        For beginners, and perhaps most significantly, two separate
    opinions of the Court of Appeals for the District of Columbia have
    helped elucidate the nature of the contracts entered into between
    utilities and the Department of Energy. We now know that the DOE is in
    default on those contracts. And, we know that for every day that
    passes, DOE's default--and their potential liability to contract
    holders--grows ever larger.
        We also know that the Court of Federal Claims has, in at least
    three cases, determined that contract holders have been damaged by the
    DOE's default. Other cases with potential liabilities in the tens of
    billions of dollars are still pending.
        We know that the DOE program at Yucca Mountain has made substantial
    progress. Much of the initial tunneling work at Yucca Mountain has been
    completed on time and under budget--a credit to the Department.
        And, we know that the recently completed Viability Assessment has
    identified no ``show stoppers'' and that the Department is on track to
    complete work on its Environmental Impact Statement and a suitability
    determination during 2000 and 2001.
        However, there is, perhaps, even more uncertainty about the
    appropriate path forward then ever.
        In light of the Court decisions I noted just a moment ago, we do
    not know the extent to which contract holders might be entitled to
    damages. We don't know where the money to pay for those claims might
    come from--but we might surmise from the testimony of witnesses at our
    hearing last month that they might come from the Nuclear Waste Fund.
    Obviously, the payment of those claims from that fund would have quite
    an impact on the amount of money available to move this program
    forward.
        We also have been made to think again about the approach taken in
    the legislation before us, with respect to radiation protection
    standards. I thought that the differing perspectives on that issue,
    presented in the testimony of the EPA and the Nuclear Regulatory
    Commission last month, was very instructive. Clearly, this is an area
    that begs for some creative thinking and perhaps a new approach.
        Significantly, we now know that the funding mechanism that we were
    forced to create in previous Congresses doesn't work. The bill no
    longer raises sufficient funds for the program authorized in the bill.
    It also raises complex new issues that might well give rise to further
    taxpayer liabilities, if it is determined that we have exceeded our
    authority in forcing current contract holders to accept new
    obligations.
        On this last point, the esteemed ranking member of our Committee,
    Mr. Dingell made some cogent remarks at our last hearing. He suggested
    that we review the bidding on this issue and perhaps fix the problem
    where it was created--that is, the way in which current budget rules
    affect the Nuclear Waste Fund.
        Finally, of course, is Secretary Richardson's recent announcement
    about a new initiative whereby the DOE might ``take title'' to certain
    utility spent fuel.
        There are, of course, a lot of questions concerning this proposal--
    but I want to applaud the Secretary for taking the proverbial bull by
    the horns and opening a dialogue with us and other affected
    stakeholders.
        I look forward to his testimony and I look forward to working with
    you, Mr. Chairman, in an effort to re-establish the broad bipartisan
    consensus that is going to be necessary to solve this problem.

        Mr. Barton. The gentleman's time is expired.
        The gentleman from Massachusetts Mr. Markey.
        Mr. Markey. Thank you, Mr. Chairman, very much. And we
    welcome back our distinguished alumnus of this committee, and
    we are all very proud of his many achievements, and there are
    many more to come we are sure.
        I am pleased that the hearings on the Nuclear Waste Policy
    Act have been extended so that we can hear from you, Mr.
    Secretary. I want to join in welcoming you here today, and I
    look forward to hearing the solutions that you are going to
    propose to a problem whose resolution has eluded us all thus
    far, and I know that you will give us a very thoughtful
    presentation.
        We are here again because the nuclear industry is crying
    that the U.S. Government has not played fair; that it failed to
    keep its agreement to take the nuclear hot potato off their
    hands starting in January 1998, and it is just burning them up.
    Never mind they were the ones who lobbied and pushed for the
    bills that set artificial deadlines and then assured our
    committee in testimony that it was a deadline that could be
    met; never mind they haven't shown that they have any safety
    problems storing the nuclear hot potato at their reactor sites
    for a few more years.
        They want relief, and they chose not one, but two ways of
    getting their desired relief, legislation and litigation. The
    courts have ruled so far that while the government does not
    have to actually take the nuclear hot potato away, it does have
    to compensate nuclear utilities for their suffering. And
    although we here in Congress have twice defeated the industry's
    favored legislation, we really do hate to see a grown industry
    cry, so we have a bill before us again, H.R. 45, which would
    ship the nuclear hot potato by priority mail to Nevada.
        Now, along comes the Secretary of Energy who hears the
    industry's cries and makes a modest proposal; perhaps the
    government can take some legal and financial responsibility for
    the hot potato, if industry accepts just one form of relief. I
    think we need to hear more details of the specifics of the
    proposal before passing judgment on it, but at least it has one
    clear benefit: It solves the problem industry says that it has.
        Industry complains that DOE agreed to take title to the
    waste and that their customers have been paying for it, and
    under the proposal DOE would take title to the waste and pay
    for its storage at the reactor sites. I find it very
    interesting that much of the nuclear industry and some of its
    congressional allies have flatly rejected this proposal.
    According to the Nuclear Energy Institute press release issued
    the same day as the Secretary's Senate testimony, NEI President
    Joe Colvin said, ``this proposal ultimately will undermine the
    Nation's program . . . The end game of this proposal is that
    there will be no permanent facility for disposal of this
    fuel.''
        Secretary Richardson suggested giving the nuclear industry
    what they say they need, but it turns out that is not what they
    really want. So what does the nuclear industry really want?
    Well, the NEI continues to press for a bill that would not only
    have DOE take title to the waste, but also ship 100,000
    canisters of waste through communities in 43 States, gut
    environmental standards for a permanent repository, mock the
    environmental impact statement process, and stick the nuclear
    hot potato in a temporary storage facility in Nevada without a
    permanent solution.
        And the nuclear industry also continues to pursue lawsuits
    for billions of dollars that would empty the Nuclear Waste
    Fund. Do not naively think the industry's law would stop the
    industry's lawsuits. NEI says, ``we believe litigation will
    continue to serve a necessary role in addition to the needed
    reform legislation.'' Such an approach would simultaneously
    ship the waste to Nevada and take back the moneys nuclear
    ratepayers contributed to pay for the waste disposal, leaving
    Nevadans with the nuclear hot potato and U.S. taxpayers with
    the bill.
        There is an end game here in which, as NEI says, there will
    be no permanent facility for disposal of this fuel. And in the
    words of the cartoon character Pogo, ``sometimes when you point
    the finger of blame, you find it aimed squarely at your own
    chest.'' I would suggest that it is the industry's legislate
    and litigate, rather than the Secretary's, approach that poses
    the greatest current risk to funding and building the
    repository.
        And so when I consider the alternatives, I have an open
    mind about the Secretary's proposal. I will be interested in
    learning more this morning about how it will be implemented,
    what its impact would be on the environmental and health and
    safety rules governing storage and transportation of spent
    fuel, and exactly how it would be paid for.
        I, again, look forward to one of our greatest Americans,
    Bill Richardson, and his testimony before our committee today.
        I yield back the balance of my time.
        Mr. Barton. I thank the gentleman for his opening
    statement. I would recognize the gentlemen from Mississippi Mr.
    Pickering for an opening statement.
        Mr. Pickering. Thank you, Mr. Chairman. At this time I will
    just listen, thank you.
        Mr. Barton. The Chair would then recognize himself for an
    opening statement.
        Today we are going to hear testimony from the distinguished
    former member of this committee and subcommittee, currently the
    Honorable Secretary of Energy, Mr. Bill Richardson. This is our
    second hearing on the nuclear waste legislation. At our first
    hearing, the subcommittee heard testimony indicating that the
    Department's failure to fulfill its legal duty to begin
    acceptance of spent fuel by January 31, 1998, has had very
    significant consequences. That failure has resulted in a series
    of court defeats that expose the Federal Government and the
    United States taxpayer to the prospect of billions and billions
    of dollars in damage payments.
        Those damage payments threaten the entire nuclear waste
    program. If billions of dollars are diverted from the Nuclear
    Waste Fund to pay for damages resulting from the Department's
    failure to fulfill its legal obligation to begin acceptance of
    nuclear waste, the nuclear waste program may come to a
    standstill. The prospect of damage payments of this magnitude
    are very real indeed.
        These are problems that exist under the status quo. These
    are not problems that are created by the legislation pending
    before the subcommittee, H.R. 45. Legislation similar to H.R.
    45 or H.R. 45 can mitigate these problems. Accelerating
    acceptance at an interim storage facility will reduce the
    potential liability to the Federal Government. The sooner the
    U.S. Government begins to fulfill its legal duty to begin
    acceptance of nuclear waste, the lower those damage payments
    will be. If less money is paid out in damages, more money will
    be available for the program.
        Other problems exist under the status quo. According to
    figures provided by the Department of Energy, the nuclear waste
    program needs about $10 billion in funding between fiscal year
    2000 and 2010 to construct a repository. Unfortunately, under
    the status quo, the Department can expect to receive less than
    $4 billion in funding during this period, since it is likely
    that appropriators will continue to fund the program at a flat
    annual level of approximately $350 million per year. By my
    mathematics, this means the Department will not have a
    repository operating in 2010.
        It is clear to any observer the waste program is in serious
    trouble. Absent legislation, it is very unlikely the program
    will get the funds it needs to build a repository, and
    acceptance will be delayed far beyond 2010, perhaps as far as
    2020 or 2025. That outcome is simply unacceptable. We urgently
    need legislation in this Congress.
        We are very glad to hear from the Secretary of Energy. I am
    pleased he wants to enter a dialog with the Congress on this
    issue. It is somewhat late in the day, but it is welcome
    nonetheless.
        This subcommittee has been urging the administration to
    play a responsible role on nuclear waste legislation for the
    past 4 years. If the Clinton Administration had come to the
    table in 1995 when there was the first attempt to work on this
    issue, we could have prevented the breach of last year, and we
    might not be here today. However, that is water under the
    bridge, and we are here today.
        In recent testimony before the Senate Energy and Natural
    Resources Committee, Secretary Richardson indicated the
    administration is weighing various alternatives to interim
    storage, including taking title onsite and a new option called
    transmutation. To be clear, the Clinton Administration has not
    taken a position on these options, but is simply studying them
    and has asked to enter into a dialog.
        Mr. Secretary, we need to know exactly, if it is possible
    to know exactly, where the administration stands. We need a
    position, not a menu of options. We need you, who have been
    identified as the point person on this issue within the Clinton
    Administration, to put flesh on the bones of your Senate
    testimony. I hope you will do that today.
        Our legislative goals are very clear. First, we want to
    accelerate the acceptance by providing for interim storage.
    Four years ago the subcommittee pursued this goal in order to
    prevent a breach of duty by the Department. That is no longer
    possible, but accelerating acceptance would mitigate damage
    payments by the Department of Energy and the U.S. taxpayer. It
    does not seem that the administration shares our goal, despite
    the string of recent court defeats, since it has yet to take
    any steps to accelerate acceptance.
        Our second goal is to strengthen the repository program. As
    I indicated earlier, in my view, the current repository program
    is broken, since it is extremely unlikely the program will
    receive the funds it needs to build a repository if we continue
    on the current timeline of funding. The Department of Energy is
    aware of this shortfall, but until today has not offered any
    proposals to put the program on a sound financial footing. That
    makes me question whether the administration is truly committed
    to a strong repository program.
        Our third goal is to protect consumers by halting the
    diversion of consumer fees from the Nuclear Waste Fund to fund
    other Federal programs. Once again, it does not seem that the
    administration shares this goal, but I think it is very
    possible that we could come to a common goal on this particular
    issue.
        I want to digress from my prepared statement to say
    something. Secretary Richardson, you were a member of this
    subcommittee and this full committee for many years. You and I
    cosponsored quite a bit of legislation together. We have had
    quite a bit of fun playing against each other in the
    congressional baseball game. My record in the games that I
    pitched when you were playing third base, I won 4, you won 1;
    however, if we look at your batting average when you batted
    against me, I think you batted over .500. And

    I don't remember that I ever struck you out, although I did get
    you out on a few occasions.
        Now, if we can recapture the camaraderie and the
    cooperation that we had when you were in the Congress and a
    member of the committee, we can solve this problem. There are
    no technical problems that can't be solved. I don't think there
    are any political problems that can't be solved. But we need to
    begin to work together beginning in this hearing to come to a
    common goal. It is in the interests of the American people, it
    is in the interests of the electricity generation industry, and
    I think, quite frankly, it is in the interests of the world
    community that the United States of America be a leader in
    coming to a permanent decision on how to manage and store this
    high-level nuclear waste.
        So, Mr. Secretary, I want to thank you for making time to
    come before the subcommittee. I welcome your written testimony,
    and I look forward to hearing from you.
        That concludes my statement.
        [The prepared statement of Hon. Joe Barton follows:]
    Prepared Statement of Hon. Joe Barton, Chairman, Subcommittee on Energy
                                   and Power
        Today, the Subcommittee on Energy and Power will hear testimony
    from Secretary of Energy Bill Richardson on H.R. 45, the Nuclear Waste
    Policy Act of 1999.
        This is our second hearing on nuclear waste legislation. At the
    first hearing, the Subcommittee heard testimony indicating the
    Department's failure to fulfill its legal duty to begin acceptance of
    spent nuclear fuel by January 31, 1998 has had very significant
    consequences. That failure has resulted in a series of court defeats,
    and those cases expose the Federal government and the taxpayer to the
    prospect of billions of dollars of damage payments.
        Those damage payments threaten the entire nuclear waste program. If
    billions of dollars are diverted from the Nuclear Waste Fund to pay
    damages resulting from the Department's failure to fulfill its legal
    duty to begin acceptance of nuclear waste, the nuclear waste program
    may come to a standstill. The prospect of damage payments of this
    magnitude is very real.
        These are problems that exist under the status quo, not problems
    that are created by H.R. 45. Legislation can mitigate these problems.
    Accelerating acceptance at an interim storage facility will reduce the
    potential liability of the Federal government. The sooner the Federal
    government begins to fulfill its legal duty to begin acceptance of
    nuclear waste, the lower the damage payments will be. If less money is
    paid out in damages, more money will be available for the program.
        Other problems exist under the status quo. According to figures
    provided by the Department, the nuclear waste program needs about $10
    billion in funding between fiscal year 2000 and 2010 to construct a
    repository. However, under the status quo the Department can expect to
    receive less than $4 billion in funding during that period, since it is
    likely appropriators will continue to fund the program at a flat annual
    level of about $350 million. By my math, that means the Department will
    not have a repository operating in 2010.
        It is clear the nuclear waste program is in serious trouble. Absent
    legislation, it is very unlikely the program will receive the funds it
    needs to build a repository, and acceptance will be delayed far beyond
    2010, maybe as far as 2020 or 2025. From my point of view, that outcome
    is unacceptable. For that reason, I believe there is an urgent need for
    legislation.
        We are glad to hear from Secretary Richardson today. I am pleased
    to hear the Secretary wants to enter into a dialogue with the Congress
    on nuclear waste issues. It is a little late in the day, but I welcome
    it nonetheless.
        This Subcommittee has been urging the Administration to play a
    responsible role on nuclear waste legislation for the past four years.
    I have to think if the Administration had come to the table in 1995,
    when we first tried to work with them, we could have prevented the
    breach last year, and we might not be here today. That is water under
    the bridge.
        In recent testimony before the Senate Energy and Natural Resources
    Committee, Secretary Richardson indicated the Administration is
    weighing various alternatives to interim storage, including take title
    and transmutation. To be clear, the Adminis-

    tration has not taken positions on these options, and has not
    identified other options it may have under consideration.
        Mr. Secretary, we need to know exactly where the Administration
    stands. We need a position, not a menu of options. We need you to put
    flesh on the bones of your Senate testimony. I hope you do that today.
        Our legislative goals are very clear. First, accelerate acceptance
    by providing for interim storage. Four years ago, the Subcommittee
    pursued this goal in order to prevent a breach of duty by the
    Department. Although that is no longer possible, accelerating
    acceptance would mitigate damage payments by the Department. It does
    not seem the Administration shares this goal, despite the string of
    court defeats, since it has yet taken any steps to accelerate
    acceptance.
        Second, strengthen the repository. As I indicated earlier, in my
    view the current repository program is broken, since it is extremely
    unlikely the program will receive the funds it needs to build a
    repository. The Department is aware of this shortfall, but has offered
    no proposals to put the program on sound footing. That makes me
    question whether the Administration is truly committed to a strong
    repository program.
        Third, protect consumers by halting the diversion of consumer fees
    to fund other Federal programs. Once again, it does not seem the
    Administration shares this goal, since the Administration has offered
    no proposals to end the diversion.
        I look forward to hearing the Secretary's testimony.

        Mr. Barton. We now have Mr. Whitfield present.
        Would you like to give a brief opening statement?
        Mr. Whitfield. Mr. Chairman, I am just delighted that you
    are having a hearing on this important subject, and I look
    forward to hearing from Secretary Richardson.
        Mr. Barton. Okay. Mr. Gibbons, a member of the great State
    of Nevada congressional delegation, is not a member of the
    committee, but he asked to give a brief opening statement. And
    before we hear from the Secretary, we will recognize Mr.
    Gibbons.
        I might also say that we offered the gentlelady from Las
    Vegas on the Democratic side the same option, but she couldn't
    be here this morning.
        Mr. Gibbons.
        Mr. Gibbons. Thank you, Mr. Chairman. And I do want to
    thank you for the opportunity to be here today. Recognizing
    that I am not a member of this committee, I am grateful for the
    opportunity to have a chance to make an opening remark inasmuch
    as that I am the representative of the district into which this
    nuclear waste is directed to be stored.
        I am beginning to get somewhat of the same feeling, I
    believe, that the Christians must have had when the Romans
    began to throw them to the lions. It seems that everyone is
    against you. And to my colleague, Mr. Norwood, who has
    indicated that we have already had six hearings on this, I am
    also reminded of a quote from H.G. Wells, which I find
    especially true today, and that is, human history becomes more
    and more a race between education and catastrophe. And I
    believe that six hearings may not be adequate in order to solve
    and understand the terrible issues that are associated with
    nuclear waste that we have presented to us today.
        Mr. Chairman, I know that you are in an anxious mode to get
    on with this, and I will try to be brief, but I cannot sit idly
    by, nor can I sit quietly, without at least voicing my concerns
    for the State of Nevada. And, therefore, I am presenting my
    opening remarks to you, along with a letter from the Governor
    of the State of Nevada dated March 11, 1999, to you, which I
    would like to make a part of the record, if I may.
        Mr. Barton. Without objection.
        [The letter follows:]

                                         Office of the Governor
                                                         March 11, 1999
    The Honorable Joe Barton
    Chairman, Subcommittee on Energy and Power
    U.S. House of Representatives
    Committee on Commerce
    Room 2125, Rayburn House Office Building
    Washington, D.C. 20515-6115
        Dear Congressman Barton: I would like to take this opportunity to
    thank you for your invitation to testify before your subcommittee last
    month. I believe that the hearing was beneficial and productive.
    Recently, as you are aware, Secretary of Energy Bill Richardson put
    forward an alternative approach to H.R. 45 that deserves careful
    consideration and analysis by your committee. The proposal, as I
    understand it, would allow the Department of Energy to take title to
    the spent fuel at the reactor sites, and, compensate the utility for
    its at reactor storage costs, until such time that a repository was
    licensed and ready to accept waste.
        It would appear that this proposal would solve at least two of the
    utility concerns with the lack of a centralized interim storage
    facility or permanent repository. First, the proposal would address
    concerns over liability, transferring responsibility from the utility
    to the federal government, and second, it would insure that the
    ratepayers do not pay twice for the same service. Based on these two
    issues alone, I believe the Secretary's proposal deserves a thorough
    review and consideration as an alternative to H.R. 45.
        Thank you for your time and consideration of this matter,
                Sincerely,
                                                 Kenny C. Guinn
                                                               Governor

        Mr. Gibbons. And, Mr. Chairman, you know the Governor, the
    Nevada congressional delegation and perhaps overwhelmingly a
    majority of the citizens of Nevada oppose sending deadly high-
    level nuclear waste to the State of Nevada. I testified earlier
    before your committee and outlined why H.R. 45 is bad for
    America because of a number of reasons, including health,
    safety, and physical as well as environmental reasons.
        I am encouraged by the Department of Energy today, and I
    want to also thank the Secretary for his diligent work and
    insight into this critical issue. And like most of us, I have
    grave concerns about the unnecessary transportation and the
    dangers created by a central interim storage facility in the
    third most seismically active area in the United States.
        It is important to note that when Congress mandated that
    the Department of Energy begin accepting nuclear waste in 1998,
    that it was Congress with their political know-it-all attitude,
    not science, that created the current problem that is now--that
    now this country faces. Billion-dollar lawsuits are pending
    against the Department of Energy.
        Science and common sense should be the driving force behind
    the problems asserted with current radioactive waste, but they
    are not.
        After reviewing the Secretary's remarks that I have had
    before me and he gave before the Senate, I believe that he has
    come up with a way to ensure that our Nation's citizens, their
    safety and our Nation's highways remain safe from the deadly
    reality of a nuclear waste accident. Not only will this protect
    our communities, our schools and our homes, but it is a
    practical, cost-effective solution to the management of nuclear
    waste.
        I would ask only that this committee and this Congress look
    past the emotional idea that we have to do something with
    nuclear waste, and, therefore, the best solution is to bury it,
    to turn our eyes away and cover it and ignore it. And I hope
    that they look at the reality, because spent fuel can be stored
    safely at reactor sites, and it is quoted as such in H.R. 45.
        As you may know, the Nuclear Waste Technical Review Board,
    an organization created by Congress to provide technical
    scientific evaluation of nuclear storage, concluded in their
    March 1996 report----
        Mr. Barton. Would the gentleman make his brief statement a
    little bit briefer, please?
        Mr. Gibbons. Mr. Chairman, I will wrap it up with the
    understanding that I can submit the complete copy of my remarks
    for the record.
        But let me just state finally, Mr. Chairman, that in that
    1996 report, that there is no compelling technical or safety
    reason to move spent fuel to a central facility, and that holds
    true today as it did in 1996 with their report.
        And, Mr. Chairman, only to conclude, let me also state
    that, again, I want to thank you for the opportunity to voice
    my concerns. To be present here today means that Nevada has an
    interest in what is going on. We thank you for the opportunity,
    and I would ask if we do have questions, that we may be able to
    submit those questions for the record for the Secretary to
    answer to be made a part of the record later on.
        And with that, Mr. Chairman, thank you.
        [The prepared statement of Hon. James A. Gibbons follows:]
       Prepared Statement of Hon. James A. Gibbons, a Representative in
                       Congress from the State of Nevada
        Mr. Chairman: I would like to thank you for this opportunity to
    join your distinguished Committee and to participate in this very
    important hearing. I would also like to thank Secretary Richardson for
    his diligent work and insight on this very critical issue.
        Many times I have addressed the issue of high-level nuclear waste,
    and I often begin with a quote from H.G. Wells which I find to be
    especially true today.
        He stated, ``that human history becomes more and more a race
    between education and catastrophe,'' and I believe this statement
    should be the foundation for today's hearing.
        As we all know, the Governor, the Congressional delegation, the
    citizens of Nevada and I--all, overwhelmingly oppose sending deadly,
    high-level nuclear waste to the State of Nevada.
        I testified earlier this year, before your Committee, and outlined
    why H.R. 45, the Nuclear Waste Policy Act of 1999 is bad for America--
    because of health, safety, fiscal and environmental reasons.
        Today however, I am encouraged by the Department of Energy and
    their solution to solving one of the major problems with H.R. 45--the
    unnecessary transportation and creation of a centralized interim
    storage facility.
        It is important to note that it was Congress who mandated that the
    Department of Energy begin accepting nuclear waste in January 1998.
        It was Congress in their political know-with-all, not science, that
    created the current problem this country now faces--the billion dollar
    lawsuits that are pending against the Department of Energy.
        Science and common sense solutions should be the driving force
    behind the problems associated with current radioactive waste.
        After reviewing the Secretary's remarks before the Senate I believe
    that he has come up with a way to ensure that our nation's citizens and
    highways remain safe from the deadly reality of a nuclear waste
    accident.
        Not only will this protect our communities, schools and homes but
    it is a practical, cost-effective solution to the management of nuclear
    waste.
        I would ask this Committee and Congress to look past the emotional
    idea that, ``We have to do something with nuclear waste, and therefore
    the best solution is to send it to Nevada,'' and look at the reality
    because, as H.R. 45 states, ``spent fuel can be safely stored at
    reactor sites.''
        And as you may know, The Nuclear Waste Technical Review Board, an
    organization created by Congress to provide technical and scientific
    evaluation of nuclear waste storage concluded, in their March 1996
    report, that there is no compelling technical or safety reason to move
    spent fuel to a central facility, and this holds true today.
        If this nonpartisan Review Board, whose purpose was to look at
    irrefutable, unbiased science, made this determination, then I believe
    there is no justifiable reason to move nuclear waste from its current
    locations.
        And that is why we should allow the Department of Energy--the
    Department that is responsible for the management of nuclear waste--to
    solve this issue on their own.
        We do not need Congress to once again impose impossible goals and
    time lines, but we need to listen to the experts--allowing government
    and industry to work together to solve their problems.
        You see, H.R. 45 will not reduce the number of sites currently
    storing nuclear waste. In fact it will only increase it by one, because
    none of the present sites will be closed before the site
    characterization of Yucca Mountain is completed.
        I would anticipate that some industries would oppose Secretary
    Richardson's solution, I mean why not?
        They would love to receive billions of dollars from the DOE for not
    taking their waste by January of 1998, and then they want the
    department to pay for the removal of waste from their facilities, to
    build an interim storage facility, and finally to pay for and build a
    permanent geological dumping ground.
        Well, I am not sure where we are going to get the money to pay for
    all of this. Several billion here for compensation to utilities, a
    couple billion here to create an interim storage facility in Nevada,
    and a few billion to transport this deadly material?
        I hope we don't expect the American taxpayer to pick up the tab.
    The people of Nevada do not have nuclear power plants, they don't want
    nuclear waste and they shouldn't be required to pay for it.
        I would encourage Congress to look at the financial reality of this
    nuclear boondoggle.
        In these times of tight budgets and fiscal responsibility are we
    going to back away from our promise to the American people, are we
    forcing ourselves into a budget deficit?
        That is why we should truly listen to Secretary Richardson's
    proposal. If the government and industry can work together, cheaper,
    safer and more efficiently--then who are we to inject our will--the
    same will that got us into this mess.
        Therefore, I fail to see the advantages of H.R. 45, and the
    Secretary's solution seems to be the right solution for America.
        We all realize that few, if any problems, have become more
    challenging in recent years than the disposal of nuclear waste.
        However, this Committee and this Congress must adhere to standards
    based on sound science, along with the protection and welfare of this
    nation's citizens. This should be the fundamental threshold we use when
    we address nuclear waste storage.
        I encourage Members to step back from their elected positions and
    look through the eyes of their constituents.
        Which option do you think they would choose--the option that
    protects the environment and the 50 million people who live along H.R.
    45's transportation routes--the option that does not bankrupt our
    treasury or forces us to raise taxes?
        Allow industry and government to work together to solve this
    problem. I encourage this Committee to give Secretary Richardson a
    chance to work with the utilities, I don't believe that is too much to
    ask--considering our alternative.
        Again, Mr. Chairman I would like to thank you for the opportunity
    to testify before your Subcommittee, and would request that you include
    a letter from the Governor of Nevada and some additional written
    information to be added in the record as part of my testimony.
        If I can be of any assistance to you or any other member of the
    Subcommittee, please let me know.

        Mr. Barton. Thank you, Congressman. And we certainly will
    allow you to submit some questions for the record, which is a
    courtesy we have extended to other Members and on other
    hearings that were not members of the subcommittee.
        Mr. Secretary, we received your testimony last night at 9
    o'clock. I actually have read it. I would have liked to have
    read it yesterday, but I did get a chance to read it. I would
    put it in the record. It is in its entirety, and we will
    recognize you for such time as you may consume to elaborate on
    it.

      STATEMENT OF HON. BILL RICHARDSON, SECRETARY, DEPARTMENT OF
                                 ENERGY

        Mr. Richardson. Mr. Chairman. Thank you, Mr. Chairman----
        Mr. Barton. You need to really pull that up to you, Mr.
    Secretary.
        Mr. Richardson. Mr. Chairman, thank you for your very
    gracious remarks, as well as every member of this committee. It
    is good to be back home with you. I also, Mr. Chairman, want to
    endorse your call for trying to resolve this issue in a
    bipartisan way, alluding to our days in the past; maybe not--my
    past, certainly you are still playing.
        Mr. Chairman, I would like to briefly discuss alternatives
    for managing our civilian nuclear power plant spent nuclear
    fuel until we are able to permanently dispose of it in a
    geologic repository.
        The administration continues to believe that the overriding
    goal of the Federal Government's high-level radioactive waste
    management policy should be the establishment of a permanent
    geologic repository. Such a repository is essential for a
    number of reasons not only to dispose of commercial spent fuel,
    but also to dispose of spent fuel and high-level waste from the
    cleanup of the Department's nuclear weapons complex and spent
    fuel and high-level waste associated with the Navy's nuclear-
    powered fleet. A permanent repository is also essential to our
    nonproliferation goals.
        Let me briefly talk about Yucca Mountain. I would like to
    briefly review how this administration has moved the Civilian
    Radioactive Waste Management Program forward in the last
    several years.
        In many of the earlier years, it appeared that there was
    little progress toward siting a repository. In 1993, however,
    the Department broke ground at Yucca Mountain and began
    drilling the miles of tunnel needed for scientific
    investigations, completing the 5-mile loop in 1997. We also
    drilled a cross-drift at the horizon of the potential
    repository area. By reaching these areas, in other words, by
    getting inside the mountain itself, we are now able to verify
    model predictions that could not be confirmed before.
        We are conducting three different thermal tests to evaluate
    how the heat of the waste could impact the surrounding rock and
    the repository structure. We are also now able to study water
    movement through the mountain. The verification of our models
    with real data from the mountain reduces potential
    uncertainties in our assessment of whether Yucca Mountain will
    work as a permanent repository. We are reaching the conclusion
    of our site characterization effort at Yucca Mountain.
        In December 1998, I submitted the viability assessment to
    the Congress and to the President. The viability assessment
    revealed no technical showstoppers, but it did identify
    additional scientific and technical work needed before a
    decision can be made whether to recommend Yucca Mountain as a
    site for a repository. We will study the following three
    elements: one, the presence and movement of water through the
    repository block; two, the effects of water movement on the
    waste package; and, three, the effects of heat from the decay
    of radioactive materials inside the waste packages on the
    site's geologic and hydrologic behavior.
        It is important to underscore that the scientific and
    technical work being carried out at Yucca Mountain represents
    cutting-edge science on a first of a kind project.
        The United States is at the forefront in developing a
    geologic repository, and the decisions we make will have
    impacts throughout the international community. We are on
    target, Mr. Chairman, to decide in 2001 whether Yucca Mountain
    is suitable to be the location of a repository and to submit a
    license application to the U.S. Nuclear Regulatory Commission
    in 2002.
        So to restate our progress, since 1993, while we were not
    able to make up for time lost during the early years of the
    program, we have maintained steady progress and have met the
    key milestones of our program plan.
        Let me discuss the Department's contractual obligation to
    take spent fuel from utilities beginning in 1998. Despite the
    progress being made at Yucca Mountain, the nuclear utility
    industry and State utility commissions are understandably
    concerned about the Department's inability to accept spent fuel
    on the schedule accepted back when the Nuclear Waste Policy Act
    of 1982 was enacted. The inventory of spent fuels in the United
    States continues to grow.
        Spent fuel from nuclear power reactors is now stored at 72
    commercial reactor sites in 33 States. We know that in some
    cases the existing storage pools are reaching their capacities.
    Each year, reactor sites will require additional onsite
    storage, either in pools or with dry cask storage. There are
    currently 10 utilities with dry storage facilities in 8 States.
    And many utilities are concerned about the costs and physical
    and regulatory limitations on their continued storage of spent
    fuel at their reactor sites.
        As you are aware, the Department is in litigation with a
    number of utilities related to our contractual obligation to
    take spent fuel from utilities. The U.S. Circuit Court of
    Appeals for the District of Columbia has found that the
    Department has a contractual obligation to commence spent fuel
    disposal no later than January 31, 1998. The court, however,
    has twice rejected the request from utilities for an order
    directing the Department to physically move spent fuel from
    their sites and found that the contracts that the Department
    has with the utilities provided potentially adequate mechanisms
    for relief.
        Pursuant to the ruling of the court of appeals, the
    Department announced that it would process claims presented to
    it under the contract, and we have entered into settlement
    discussions with several utilities. In addition, several
    utilities have come to talk to us about their specific
    problems. Some of these utilities have asked the Department to
    take title to their spent fuel onsite at their reactors. In
    separate litigation, 10 utilities have filed claims for
    damages. In the first three cases, the court found that the
    Department had breached its contracts, and the Department is
    now engaged in determining the amount of damages owed to these
    utilities.
        The other Court of Claims cases are in very preliminary
    stages with potentially years of litigation still ahead. As
    indicated by the Justice Department in its testimony before
    this subcommittee on February 10, the damages that are being
    sought by the 10 utilities before the Court of Claims could
    total $8.5 billion. This is more than the existing balance in
    the Nuclear Waste Fund and is roughly 85 percent of the
    remaining costs to open the repository in 2010. Potential
    claims from other utilities could be many times this amount.
        The Justice Department also stated that the decision on
    whether payments for these judgments would come out of the
    Nuclear Waste Fund is still pending. Let me state clearly that
    using the Fund to pay these claims would jeopardize the
    Department's ability to complete the repository program.
        Let me turn to the administration's views of H.R. 45. The
    administration opposes this bill, which would require the
    Department to begin accepting waste at an interim storage
    facility in Nevada no later than June 30, 2003. Making a
    decision now to put interim storage in Nevada is not the right
    approach. It simply does not make sense to transport spent fuel
    across the country to Yucca Mountain until we have completed
    the scientific work and know where a final repository will be.
    Spent fuel is currently being stored safely at reactor sites
    under U.S. Nuclear Regulatory Commission oversight and can
    continue to be stored safely until a repository is open.
        From a budgetary standpoint, enactment of H.R. 45 could
    also have several negative impacts on the repository program.
    First, it will add the costs of construction of an interim
    storage facility to the program budget and will advance the
    costs of transportation far earlier than now planned.
        Between now and the year 2010, we estimate that H.R. 45 and
    the additional costs of the interim storage facility would add
    approximately $1.5 billion to the total costs of the Civilian
    Radioactive Waste Program. It would also require expending $2
    to $3 billion for transportation before we know with certainty
    whether Yucca Mountain will be the site for a permanent
    repository.
        In addition to these new budgetary burdens, and perhaps
    more significantly, H.R. 45 would not provide the Department or
    the Federal Government with relief from the billions of dollars
    of potential damages likely to be awarded through litigation.
    By imposing new statutorily defined obligations and deadlines,
    H.R. 45 would also create the potential for new litigation if
    the Department were unable to meet these requirements, or if it
    had the effect of altering the existing utility contracts.
        For all of these reasons I have stated, the administration
    remains unequivocally opposed to the enactment of legislation
    requiring construction and operation of an interim storage
    facility at Yucca Mountain, and I would recommend a veto of any
    such legislation.
        Let me now turn to our proposal to take title onsite. As
    the committee has requested, I will discuss it at this point.
    Let me emphasize first that the Department is only beginning to
    analyze this approach and discuss it with the utility industry
    consumers and environmental groups and other interested
    parties. However, we be-

    lieve it appears to be a practical option that would provide a
    near-term solution to utilities' spent fuel storage needs and
    would be relatively easy to implement.
        The chairman's invitation letter raised a number of
    specific questions, such as; one, how it would be funded; two,
    when it would be implemented; three, who would own and regulate
    these sites; and, four, how would it affect the Department's
    contractual ability. These are all very important questions
    that the Department is in the process of answering. Many of
    those answers will depend upon the specific needs of individual
    utilities.
        Let me discuss briefly some of the concepts we believe are
    appropriate to consider as part of that discussion.
    Conceptually, the Department would offer to take title to spent
    fuel consistent with our schedule for acceptance under our
    contracts with the utilities. By taking title to the spent
    fuel, the Department could either assume financial
    responsibility for the utilities' continued management of the
    spent fuel or possibly assume physical possession and
    responsibility for management of the spent fuel.
        We assume that based upon their individual circumstances,
    utilities may have different opinions on these alternatives.
    For example, a utility with a permanently shut-down reactor
    will have different concerns from a utility with operating
    reactors. While we could still have to address a range of
    issues, including liability, financial and operational
    responsibilities, we believe we could implement this proposal
    by modifying existing contracts with utilities. We want to hear
    from utilities and other interested parties on how taking title
    to spent fuel could most efficiently be implemented.
        In return for the Department taking title and financial
    responsibility for the spent fuel, the Department would expect
    the utilities to terminate their litigation and claims,
    something that H.R. 45 does not address. This would end the
    uncertainty that continued litigation brings and ensure the
    continuance of a repository program. As I said before, the
    potential costs of current litigation damages already places
    the repository program in jeopardy. Consequently the cost to
    take title appears to be minimal compared to the potential
    costs of damages.
        The cost of taking title onsite would depend on the final
    arrangements worked out with the utilities for spent fuel
    management. We have not done a detailed cost estimate; our
    rough estimate is that it could cost up to $2 to $3 billion
    between now and 2010. That cost estimate assumes that we would
    take title of the fuel in accordance with our contract
    acceptance schedule.
        Let me deal with the program funding requirements. As we
    continue to discuss and develop the specifics of a take-title
    alternative to centralized interim storage, we would need to
    take a serious look as to how to pay for such a proposal
    without imposing undue burdens on either utility ratepayers or
    the taxpayers.
        I also want to analyze further proposals that would ensure
    that the revenues raised by the nuclear waste fee remain
    available to complete the job of safe management and disposal
    of nuclear wastes. For some time both the administration and
    the Congress have been aware that the overall constraints of
    the Federal budget process have the potential to limit the
    availability of outyear funding for the nuclear waste program.
    Therefore, Mr. Chairman, I

    would like to work with you and members of this committee to
    ensure that the repository program continues to be adequately
    funded.
        If the Yucca Mountain site is found suitable, it is
    critical that funding is available after 2001 to meet our
    obligations as program demands increase, and to assure our
    ability to meet a date certain for disposal of wastes.
        In exploring any funding alternatives, I want to preserve
    the two important objectives that I mentioned before: one, that
    we do not impose undue burdens on either utility ratepayers or
    the taxpayers; and second, that the revenues raised by the
    nuclear waste fee remain available to complete the job.
        Let me conclude with this statement, Mr. Chairman: We are
    reaching the conclusion of our site characterization effort on
    Yucca Mountain. We know technical questions about the site
    remain. We need to finish our scientific and technical work. I
    know that you and many other Members of Congress are frustrated
    because we have not accepted spent fuel. We want to be
    responsive to utilities, State regulatory commissions, States,
    environmental groups, consumer groups that have had to tackle
    additional spent fuel management responsibilities.
        But I want to reiterate the administration's view that
    enactment of interim storage legislation is not the solution.
    Shipping 10,000 metric tons of spent fuel to Yucca Mountain, as
    proposed in H.R. 45, is inconsistent with the process and
    principles established for making a decision on the permanent
    disposal of our Nation's spent nuclear fuel. I ask this
    subcommittee not to proceed with adoption of interim storage
    legislation. Instead, I want to take up your call, Mr.
    Chairman, to ask that we work together to fashion a more
    practical solution.
        This legislation, H.R. 45, would place significant
    financial programmatic and legal liability on the department's
    civilian nuclear waste repository program. It would also
    prejudge the selection of Yucca Mountain, and it would not
    resolve the billions of dollars in claims arising out of the
    delay in accepting utility spent fuel.
        There is no question that we need to address the utility
    spent fuel problems. The question instead is, how can we seize
    this opportunity to jointly explore alternatives to solving
    these problems?
        Thank you.
        Mr. Barton. Does that conclude your statement?
        Mr. Richardson. Yes, sir.
        [The prepared statement of Hon. Bill Richardson follows:]
     Prepared Statement of Hon. Bill Richardson, Secretary, Department of
                                     Energy
        Thank you, Mr. Chairman, and Members of the Subcommittee, for the
    opportunity to appear before you today to discuss alternatives for the
    management of spent nuclear fuel from civilian nuclear power plants
    until we are able to permanently dispose of it in a geologic
    repository.
        The Administration continues to believe that the overriding goal of
    the Federal Government's high-level radioactive waste management policy
    should be the establishment of a permanent, geologic repository. Such a
    repository is essential not only to dispose of commercial spent fuel,
    but also to dispose of: spent fuel and high-level waste from the
    cleanup of the Department's nuclear weapons complex, unique commercial
    spent fuel transferred to the Department (such as Three Mile Island and
    Fort St. Vrain spent fuel), and spent fuel and high-level waste
    associated with the Navy's nuclear-powered fleet. A permanent
    repository is also important to our non-proliferation efforts to
    demonstrate alternatives to reprocessing, important for the disposition
    of foreign research reactor fuel being returned to the U.S., and an
    option for disposition of surplus plutonium from nuclear weapons
    stockpiles.
                                 yucca mountain
        Before addressing the proposed legislation--H.R. 45, the Nuclear
    Waste Policy Act of 1999--and an alternative approach, I would like to
    review quickly how this Administration has moved the Civilian
    Radioactive Waste Management Program forward in the last several years.
    In many of the earlier years it appeared that there was little progress
    towards siting a repository. In l993, however, the Department broke
    ground and began drilling the miles of tunnel needed for scientific
    investigations, completing the five-mile loop in 1997. We also drilled
    a cross-drift at the horizon of the potential repository area. Reaching
    these areas, we are now able to verify model predictions that could not
    be confirmed without being inside the mountain. We are conducting three
    different thermal tests to evaluate how the heat of the waste could
    impact the surrounding rock and the repository structure. We are also
    now able to study water movement through the mountain. The verification
    of our models with real data from the mountain reduces the
    uncertainties in our assessment of whether Yucca Mountain will work as
    a permanent repository.
        We are reaching the conclusion of our site characterization effort
    at Yucca Mountain. In December 1998, I submitted the Viability
    Assessment of a Repository at Yucca Mountain to the Congress and to the
    President. This subcommittee received testimony on the Viability
    Assessment in February when the Acting Director, Lake Barrett, appeared
    before you.
        The Viability Assessment revealed no technical ``showstoppers,''
    but it did identify additional scientific and technical work needed
    before a decision can be made whether to recommend Yucca Mountain as
    the site for a repository. Consequently, we have asked for close to a
    $50 million increase in the FY2000 budget for site characterization
    activities to address these concerns--a 17.4 per cent increase. We will
    study the presence and movement of water through the repository block,
    the effects of water movement on the waste package, and the effects of
    heat from the decay of radioactive materials inside the waste packages
    on the site's geologic and hydrologic behavior.
        It is important to underscore that the scientific and technical
    work being carried out at Yucca Mountain represents cutting-edge
    science on a first-of-a-kind project. The United States is at the
    forefront in developing a geologic repository, and the decisions we
    make will have impacts throughout the international community.
        We are on target to decide in 2001 whether Yucca Mountain is
    suitable to be the location of a repository and to submit a license
    application to the U.S. Nuclear Regulatory Commission in 2002. In
    short, since 1993, although we were not able to make up for time lost
    during the early years of the program, we have maintained steady
    progress and met the key milestones of our Program Plan.
               contractual obligations for spent fuel management
        I want to assure you that I am very conscious of the Department's
    contractual obligation to take spent fuel from utilities beginning in
    1998. Notwithstanding the progress being made at Yucca Mountain, the
    nuclear utility industry and state utility commissions are
    understandably concerned about the Department's inability to accept
    spent fuel on the schedule anticipated at the time of enactment of the
    Nuclear Waste Policy Act of 1982. The inventory of spent fuel in the
    United States continues to grow. Spent fuel from nuclear power reactors
    is now stored at 72 commercial reactor sites in 33 states. We know some
    have already reached their capacity and many are reaching their
    capacity. Each year reactor sites will require additional on-site
    storage either in pools or with dry cask storage. There are currently
    10 utilities with dry storage facilities in 8 states, and many
    utilities are concerned about the costs and physical and regulatory
    limitations on their continued storage of spent fuel at their reactor
    sites.
        As you are aware, the Department is in litigation with a number of
    utilities related to the Department's contractual obligation to take
    spent fuel from utilities. The U.S. Circuit Court of Appeals for the
    District of Columbia has found that the Department has a contractual
    obligation to commence spent fuel disposal no later than January 31,
    1998. The Court, however, has twice rejected the request from utilities
    for an order directing the Department to physically move spent fuel
    from their sites and found that the contracts the Department has with
    the utilities provide a potentially adequate mechanism for relief.
    Pursuant to the ruling of the Court of Appeals, the Department
    announced that it would process claims presented to it under the
    contract, and we have entered into settlement discussions with several
    utilities.
        In separate litigation, ten utilities have filed claims for
    damages. In the first three cases the Court found that the Department
    had breached its contracts, and the Department is now engaged in
    determining the amount of damages owed to these utilities. The other
    Court of Claims cases are in very preliminary stages with potentially
    years of litigation still ahead. As indicated by the Justice Department
    in its testimony before this Subcommittee on February 10, the damages
    being sought by the ten utilities before the Court of Claims could
    total $8.5 billion. This is more than the existing balance in the
    Nuclear Waste Fund and is roughly 85 percent of the remaining cost to
    open the repository in 2010. Potential claims from other utilities
    could be many times this amount.
        The Justice Department also stated that a decision on whether
    payments for these judgments would come out of the Nuclear Waste Fund
    is still pending. Should it become necessary to use the Fund to pay
    these claims, the Department's ability to complete the repository
    program would be in jeopardy. Ironically, claims against the Fund could
    also require a significant increase in the fee charged utilities to
    maintain the program, and could trigger yet another round of litigation
    and claims.
        I also want to point out that several utilities have come and
    talked to us about their specific problems and proposed potential
    solutions. Some of these utilities have asked the Department to take
    title to their spent fuel onsite at their reactors.
                        administration views of h.r. 45
        The Administration opposes H.R. 45, which would require the
    Department to begin accepting waste at an interim storage facility in
    Nevada no later than June 30, 2003. Making a decision now to put
    interim storage in Nevada is not the right approach. It simply does not
    make sense to transport spent fuel across country to Yucca Mountain
    until we have completed the scientific work and know where a final
    repository will be. Spent fuel is currently being stored safely at
    reactor sites, under U.S. Nuclear Regulatory Commission oversight, and
    can continue to be stored safely until a repository is open.
        From a budgetary standpoint, enactment of H.R. 45 could also have
    several negative impacts on the repository program. First, it will add
    the cost of construction of an interim storage facility to the program
    budget, and it will advance the costs of transportation much earlier
    than now planned. Between now and the year 2010, we estimate that H.R.
    45 would add approximately $1.5 billion to the total cost of the
    civilian radioactive waste program because of the additional cost of
    the interim storage facility. It would also require expending $2-3
    billion dollars for transportation prior to knowing whether Yucca
    Mountain will be the site for a permanent repository.
        In addition to these new budgetary burdens, and perhaps more
    significantly, H.R. 45 would not provide the Department or the Federal
    Government relief from the billions of dollars of potential damages
    likely to be awarded through litigation. By imposing new statutorily
    defined obligations and deadlines, H.R. 45 would also create the
    potential for new litigation if the Department were unable to meet
    these requirements or if it had the effect of altering the existing
    utility contracts.
        As I stated in my introductory remarks, it is critical to many
    national goals that we develop the capability to permanently dispose of
    high-level radioactive waste and spent fuel. We believe H.R. 45 could
    seriously jeopardize our ability to carry out this effort. For these
    reasons, and because of the central fact that we have not completed the
    work necessary to make a decision to recommend Yucca Mountain as a
    permanent repository site, the Administration remains unequivocally
    opposed to the enactment of legislation requiring construction and
    operation of an interim storage facility at Yucca Mountain, and I would
    recommend a veto of any such legislation.
                         proposal to take title on-site
        As the Subcommittee has requested, I would like to discuss the
    Department taking legal title to utilities' spent fuel at reactor sites
    until a repository is opened. Let me emphasize first that the
    Department is only at the beginning of the process of analyzing this
    approach and discussing it with the utility industry and other
    interested parties. However, it appears to be a practical option that
    would provide a near-term solution to utilities' spent fuel storage
    needs and would be relatively easy to implement. The chairman's
    invitation letter raised a number of specific questions such as how it
    would be funded, when it would be implemented, who would own and
    regulate these sites, and how it would affect the Department's
    contractual liability. These are all very important questions that the
    Department is in the process of answering, and many of those answers
    will depend upon the specific needs of individual utilities.
        Let me discuss briefly some of the concepts we believe are
    appropriate to consider as part of that discussion. Conceptually, the
    Department could offer to take title to spent fuel consistent with our
    schedule for acceptance provided under its contracts with utilities. By
    taking title to the spent fuel, the Department could either assume
    financial responsibility for the utility's continued management of the
    spent fuel or possibly assume possession and responsibility for
    management of the spent fuel. We assume that utilities may have
    differing opinions on these alternatives, based upon their individual
    circumstance. For example, a utility with a permanently shut down
    reactor and no ongoing nuclear operations may want the Department to
    assume complete responsibility for the management of the spent fuel and
    storage facilities, while other utilities with operating reactors may
    prefer the Department only to take financial responsibility.
        As part of an agreement to take title, the Department could agree
    either to reimburse the utility for the incremental cost of storing
    that spent fuel or to take a more direct role in the management of the
    spent fuel and storage facilities. We believe we could implement this
    proposal by modifying the existing contracts with utilities. We would
    still have to address a range of issues, including liability, financial
    and operational responsibilities.
        While we want to hear from utilities and other interested parties
    on how taking title to spent fuel could most efficiently be
    implemented, our initial thoughts are that a continued reliance on the
    utilities to manage their spent fuel, rather than the Department, would
    be most practical and least intrusive on utility operations. Again, the
    purpose of initiating this dialogue is to better understand what the
    utilities think and to obtain other relevant perspectives on the issue.
    Under any approach, the Nuclear Regulatory Commission would continue to
    provide regulatory oversight of spent fuel storage activities at sites.
        In return for the Department taking title and financial
    responsibility for the spent fuel, the Department would expect the
    utilities to terminate their litigation and claims; something that H.R.
    45 does not address. This would end the uncertainty that continuing the
    litigation brings to all parties and ensure the continuance of a
    repository program. The potential cost of current litigation damages
    already places the repository program in jeopardy. If the Department is
    unable to proceed with a permanent solution, future costs could be even
    greater. Consequently, the cost to take title appears to be minimal
    compared to the potential cost of damages, which as I noted above could
    end up being assessed against the Nuclear Waste Fund.
        The cost of taking title onsite would depend on the final
    arrangements worked out with utilities for spent fuel management. We
    have not done a detailed cost estimate. Our rough estimate is that it
    could cost up to $2 to $3 billion between now and 2010. That cost
    estimate assumes that we would take title of the fuel in accordance
    with our contract acceptance schedule. There may also be ways in which
    these costs can be reduced. For example, one of the major costs of
    continued onsite storage is the cost of dry storage casks. It may be
    possible to consider federal purchase or lease of these casks. Here
    again, we need to hear from the industry on their views on how we can
    best address these issues.
        Funding for the DOE to take title on-site could be achieved through
    a variety of means, ranging from deferral of ongoing spent fuel
    disposal fee payments, to direct reimbursement for costs incurred, to
    advance payments for anticipated costs. As with other program costs,
    payments could come from a mix of Nuclear Waste Fund balances, current
    payments, or appropriated funds. Again, we need to hear from the
    industry on their views of payment and funding options.
                          program funding requirements
        As we continue to discuss and develop the specifics of a take title
    alternative to centralized interim storage, we need to take a serious
    look at how such a proposal would be paid for without imposing undue
    burdens on either utility ratepayers or the taxpayers. I also want to
    analyze further proposals that would ensure that the revenues raised by
    the nuclear waste fee remain available to complete the job of safe
    management and disposal of nuclear waste.
        Both the Administration and the Congress have been aware for some
    time that the overall constraints of the federal budget process have
    the potential to limit the availability of funding for the nuclear
    waste program in the out years. Therefore, I would like to work
    together with the Congress to assure the repository program continues
    to be adequately funded. If the Yucca Mountain site is found suitable,
    it is critical that funding is available after 2001 to meet our
    obligations as program demands increase and to ensure our ability to
    meet a date certain for disposal of waste.
        In exploring any funding alternatives, I want to preserve the two
    important objectives I mentioned above : (1) that we do not impose
    undue burdens on either utility ratepayers or the taxpayers; and (2)
    that the revenues raised by the nuclear waste fee remain available to
    complete the job.
                                   conclusion
        Mr. Chairman, we are reaching the conclusion of our site
    characterization effort. We know technical questions about the site
    remain. We need to finish our scientific and technical work.
    Ultimately, it is not only the Department of Energy, but also the
    Nuclear Regulatory Commission (NRC) that will need to pass judgment on
    whether a repository can be constructed and operated safely. Therefore,
    in completing the remaining work at the site, we need to ensure that we
    have an adequate technical basis to support a rigorous NRC licensing
    process. This will require a continued and sustained effort over the
    next couple of years. However, the completion of the characterization
    effort is in sight.
        I know that you and many other Members of Congress are frustrated
    because we have not accepted spent fuel and want to be responsive to
    utilities and state regulatory commissions that have had to deal with
    additional spent fuel management responsibilities. I want to reiterate
    the Administration's view that enactment of interim storage legislation
    is not the solution. Shipping 10,000 metric tons of spent fuel to Yucca
    Mountain, as proposed in H.R. 45, is inconsistent with the process and
    principles established for making a decision on the permanent disposal
    of our Nation's spent nuclear fuel.
        I ask this Subcommittee not to proceed with adoption of interim
    storage legislation and to work with me to fashion a more practical
    solution. This legislation would place significant additional
    financial, programmatic, and legal liabilities on the Department's
    civilian nuclear waste repository program. It would prejudge the
    selection of Yucca Mountain. And it would not resolve the billions of
    dollars in claims arising out of the delay in accepting utility spent
    fuel. We need to address the utilities' spent fuel problems, and I
    believe that we are at a point where there is a genuine opportunity to
    explore alternatives.

        Mr. Barton. Congressman Shadegg has an airplane to catch in
    35 or 40 minutes. We will recognize Mr. Shadegg for 5 minutes;
    then we will go to Mr. Dingell, Mr. Bliley, and then go in
    regular order with Mr. Hall and myself.
        So Mr. Shadegg is recognized for 5 minutes.
        Mr. Shadegg. Thank you very much, Mr. Chairman. And thank
    you, Mr. Secretary, for being here. As I indicated in my brief
    opening remarks, I was in fact a week ago today at this very
    hour at Yucca Mountain looking at the facility there and
    discussing with the people there their progress, the ongoing
    specific work. Indeed we looked at their ongoing work to assess
    the effects of water and the movement of water through the
    rock.
        We looked at their ongoing scientific work to assess your
    second point, the effects of water on the containers and the
    effects of heat, and as a matter of fact, saw their current
    demonstration which simulates what the heat, which would be
    produced by the stored fuel, will do to the rock and what it is
    doing to the rock as they simulate that heat.
        I take it that when you say that we are, in your testimony,
    ``on track'' and you say this at page 2--excuse me, page 3 of
    your testimony, in the second full paragraph, we are on target
    to decide in 2001 whether Yucca Mountain is suitable as the
    location of a repository, you are saying we are on target with
    regard to that specific work; is that correct?
        Mr. Richardson. That is correct, Congressman.
        I believe that this scientific work which is done by
    excellent scientists from labs from around the country--and by
    the way, certified by many scientific boards; and if there is
    dissension, we have always been prepared to fund others from
    universities that might have an opposing view. We are
    optimistic that under our current schedules we can meet the
    deadlines. The two key deadlines are a decision on suitability
    in the year 2001 and to submit a license application to the
    Nuclear Regulatory Commission in 2002.
        Mr. Shadegg. So you are not testifying to this fact, have
    there been any setbacks?
        Mr. Richardson. That is correct. In fact, the viability
    assessment--this is a scientific study, pure science, technical
    work that we submitted at the end of the year--basically said
    what you said in your statement, that we are continuing to
    study Yucca, that there are no showstoppers, that there is some
    water and other problems that we have to deal with before we
    make a final decision in 2001.
        Mr. Shadegg. I am glad you turned to the viability
    assessment, because it was my understanding that the
    administration's previous position was that as soon as we got
    the viability assessment, we could make these decisions and
    move forward and continue on track. And that now--at least to
    some of us, it appears like the goalposts are moving that
    although the viability assessment came in and said there are no
    showstoppers, there is still additional scientific work to be
    done and calculations to be made.
        Nonetheless, there is nothing that stops our current
    planning; and I want you to explain to me why your proposal
    here today to look at this other issue, which concerns me
    greatly--the taking of title, the possibility of liability
    following that title, which I think is likely, and the
    additional cost--isn't a change of horses in midstream which
    will necessarily result in additional costs, quite frankly, I
    think, not to ratepayers but to taxpayers.
        Because as I understand the court rulings and the positions
    of the various utility commissions. They are saying that the
    ratepayers have already paid for this, and any further delay is
    at the feet of the Federal Government, and it is going to be
    the taxpayers that will have to pay.
        I guess my first concern is that by shifting to this
    alternative strategy, when the viability assessment came back
    as it did, aren't we in fact moving the goalposts and/or
    further delaying the process, and isn't that going to impact
    the taxpayers?
        Mr. Richardson. Congressman, we are not shifting the
    goalposts. What I did when I came into office was responded to
    many members of this committee and the Senate to enter a dialog
    with the Congress on how to resolve the problem. We had opposed
    interim storage, and we still do. We believe that that is not
    the way to go.
        But what I have done on behalf of the administration is
    propose this alternative that we can jointly work together on.
    It is not perfect. It is not fully costed out. In fact, I
    wanted to hold off until I testified to see if there is
    interest in pursuing this dialog so that we can flesh out some
    of these remaining issues.
        But in response to your question, this is not a policy
    shift. Our objective was in terms of determining the
    suitability of Yucca in 2001. We completed the viability
    assessment, but we also said additional technical work is
    needed to ensure that Yucca is suitable in 2001--if it is going
    to be suitable, a decision that we have not reached.
    Afterwards, we proceed toward the licensing request in 2002,
    ultimately to have a repository ready by 2010.
        Mr. Shadegg. That takes me to the next question that I have
    before we will go into the title issues. If you are on target,
    as you say on page 3 of your testimony, to make the decision in
    2001, what then is inconsistent with the provision within H.R.
    45 that you would be required to accept waste in 2003 at the
    interim storage facility? It seems to me if you can make the
    decision by 2001 that Yucca is the suitable location, how then
    are we delaying or causing any damage if what we do is pass
    H.R. 45, which says that we are going to be accepting waste for
    interim storage in 2003?
        Mr. Richardson. Well, Congressman, I think what H.R. 45
    does, which is why we oppose it, is it prejudges the final
    scientific decision on Yucca.
        Second, it does not address, as I mentioned, the fact that
    our department, our government, all of us, have been sued, and
    we could lose millions of dollars.
        And third, why do we want to transport this spent fuel to a
    facility that we have not decided on? So for those reasons, I
    think our policy decision is correct.
        Mr. Shadegg. I guess with the lead time that is required,
    it seems to me I didn't hear an answer to why we shouldn't pass
    this bill calling for the movement of waste there by 2003, if
    you are going to make your decision by 2001; but my time is
    expired, and so I will leave that to my colleagues to follow up
    on.
        Mr. Barton. The distinguished gentleman from Michigan, Mr.
    Dingell, for 5 minutes.
        Mr. Dingell. Mr. Chairman, I commend you for holding this
    hearing, and I thank you for recognizing me.
        Mr. Secretary, let's summarize. You have here a potential
    liability of about $8.5 billion, which will grow by the amount
    that other utilities will add to that as they file suit under
    the Tucker Act and under other things for the failure of the
    Federal Government to act; is that right?
        Mr. Richardson. Mr. Chairman, that is correct. Ten
    utilities have filed claims in the Court of Federal Claims,
    seeking damages from $70 million to $1.5 billion, and totaling
    approximately $8.5 billion, so you are correct.
        Mr. Dingell. We do not yet know what the total amount of
    this growing liability will be, but it will be significant.
        So then would it be fair to say that an early settlement of
    these questions is very much in the public interest?
        Mr. Richardson. That is correct, Mr. Chairman.
        Mr. Dingell. Now, Mr. Secretary, the Department of Justice
    testified that if H.R. 45 were enacted, utilities could claim
    that it altered their existing contract rights; and then went
    on to say this, and I quote, ``This change could constitute
    another breach of contract for which they are entitled to
    damages.'' Is that correct?
        Mr. Richardson. That is correct.
        Mr. Dingell. Mr. Secretary, your lawyers are looking at
    whether, in the light of recent court decisions, H.R. 45 could
    give rise to additional lawsuits under the Tucker Act?
        Mr. Richardson. That is correct.
        Mr. Dingell. Mr. Secretary, I would assume you would agree
    with me that the last thing we need is another series of
    lawsuits to impair the processing of this program and to impair
    the potential funding which would come from the Nuclear Waste
    Fund; is that correct?
        Mr. Richardson. That is correct.
        Mr. Dingell. Now, Mr. Secretary, you have indicated you
    have not come to a clear decision as to whether or not the
    Nuclear Waste Fund should be used to settle up damages that
    might occur or to address the cost of the lawsuits. Is that a
    fair statement?
        Mr. Richardson. That is correct. The Justice Department is
    studying the question. We don't know whether the funds would
    come from the waste fund or from our own budget.
        Mr. Dingell. Is it fair to say, Mr. Secretary, that the
    department does not have funds to build both an interim storage
    facility and keep the permanent repository program on track?
        Mr. Richardson. We do not have the funds to do both. This
    is why we have taken the position we have.
        Mr. Dingell. You are making that statement very clearly,
    that you do not have funds enough?
        Mr. Richardson. We do not have the funds.
        Mr. Dingell. And Mr. Barrett had indicated in earlier
    testimony the bill would undermine, and this is a quote, would
    ``undermine the ability to open the new repository, as
    scheduled, in 2010.'' Do you concur with that statement?
        Mr. Richardson. I concur.
        Mr. Dingell. Can you give us any estimates as to how long
    the repository would be delayed under those circumstances?
        Mr. Richardson. Well, we believe that it would be
    inordinately delayed. It would be a substantial period of time.
        Mr. Dingell. Do you want to submit the answer to that, your
    best answer to that for the record, Mr. Secretary?
        Mr. Richardson. Well, my experts in the back here are
    telling me that it would severely cripple the facility and it
    would delay it extensively.
        Mr. Dingell. Mr. Secretary, if we were to come up with a
    settlement of this problem, and I want to make it very clear, I
    strongly favor the resolution by legislation at an early time,
    but that would necessarily entail some--in your view, and I
    think in the view of the Federal Government--a forgoing of the
    rights to continue to litigate the claims that have already
    been asserted against the fund in the amount of some $8.5
    billion, and growing; is that correct?
        Secretary Richardson. That is correct, Mr. Chairman.
        Mr. Dingell. Because otherwise we face the cost of all the
    work that has to be done and we would then be adding to that
    the cost of legitimate claims that have been adjudicated in the
    courts; isn't that right?
        Mr. Richardson. That is right.
        Mr. Dingell. Mr. Secretary, you have proposed a very
    interesting concept for processing some of the issues plaguing
    this program. I understand you are proposing that DOE assume
    the cost for storing spent fuel onsite until the waste can be
    taken to the permanent repository; is that correct?
        Mr. Richardson. That is correct.
        Mr. Dingell. Your testimony estimates that onsite storage
    by DOE will amount to some $2 to $3 billion between now and
    2010; is that correct?
        Mr. Richardson. Mr. Chairman, that is correct. These are
    very difficult to estimate, given individual negotiations with
    each utility on their specific situation. But that is our best
    estimate--the rough estimate right now.
        Mr. Dingell. This is significantly less than the $8.5
    billion in claims pending against the Department in the U.S.
    Court of Claims under the Tucker Act; is that right?
        Mr. Richardson. That is correct.
        Mr. Dingell. Am I correct in concluding that your onsite
    storage proposal could be used to settle these claims and a
    cheaper cost could be worked out than fighting it out in the
    courts?
        Mr. Richardson. That is correct.
        Mr. Dingell. Am I correct in assuming that one purpose is
    to help reduce the drain in the Nuclear Waste Fund in the
    unhappy event that it is determined that the fund can be
    tapped, and I want to say that it can be tapped, to pay damages
    on ongoing lawsuits?
        Mr. Richardson. That is correct.
        Mr. Dingell. This would preserve the Waste Fund to complete
    the repository for the permanent storage of these nuclear
    wastes.
        Mr. Richardson. That is correct.
        Mr. Barton. The gentleman's time has expired. Would the
    gentleman indicate approximately to the Chair how many more
    questions.
        Mr. Dingell. Mr. Chairman, you will be pleased to note I
    have just completed my questions.
        Mr. Barton. Well, that was very well done.
        The Chair would recognize the distinguished full committee
    chairman, Mr. Bliley of Virginia, for 5 minutes.
        Chairman Bliley. Mr. Secretary, it is my understanding that
    the proposal to take possession of this material and keep it
    onsite, that there are a number of sites, either through State
    regulation or for lack of space, that cannot physically do
    this. What is your proposal to deal with that?
        Mr. Richardson. Well, let me say, Mr. Chairman, my proposal
    would be, let's take two utilities, two States that have voiced
    support for our approach, I think Con Edison of Illinois and
    the Wisconsin Electric. What we would do, Mr. Chairman, is, as
    I said, try to work out individual negotiations with each of
    these utilities. Perhaps an option would be to enter into a
    discussion with a utility to purchase or lease space, or find
    some way to accommodate the concerns of some of these utilities
    that don't have space.
        The last thing we want to do is have an across-the-board
    solution that affects every utility but does not respond to
    their individual needs.
        Chairman Bliley. You know, talking about taking permanent
    possession in 2010, how much is this request going to cost?
    Assuming that you get the go-ahead when you finish all of your
    studies in 2001 and you get your license in 2005, how much is
    it going to cost to build the facility out and to begin to take
    possession or to take possession in 2010?
        Mr. Richardson. Mr. Chairman, we don't have all the answers
    today, but, in concept, this is how we believe it would work.
    The costs would be up to $2 billion to $3 billion between now
    and 2010. No. 2, the funding could be done by deferring fee
    payments or direct reimbursements for cost. We would take title
    consistent with our contract acceptance schedule.
        In other words, nothing new would change there. We could
    have utilities manage the facility or we could assume
    responsibility. These are details that we would want to work
    with this committee and with the utilities on how we can
    formulate this more effectively.
        Chairman Bliley. Well, it is my understanding that you need
    about $10 billion to construct the repository.
        Mr. Richardson. That is correct, about $10 billion.
        Chairman Bliley. And that you are receiving about $370
    million a year, which would mean that you would have about a $6
    billion shortfall.
        Mr. Richardson. Yes, the appropriation, your appropriations
    figure is correct.
        Chairman Bliley. Well, how do you propose to get from $4
    billion to $10 billion?
        Mr. Richardson. Mr. Chairman, what we estimate, the
    construction of Yucca, the $10 billion is up to the point of
    opening. That is the figure that we have.
        Now in terms of budget numbers, a lot of it depends on
    whether we bring the repository into operation. We cannot
    estimate the total cost between now and 2010 until we deal with
    the issue of suitability. Both the administration and the
    Congress have been aware at the time of the overall constraints
    of the Federal budget process and how that has the potential to
    limit the availability of funding for the nuclear waste program
    in the outyears.
        In other words, Mr. Chairman, I can assure you of funding
    until 2002 with very solid projections. Beyond that, I think we
    have to work very closely together to determine what it is
    going to cost us in the outyears.
        Mr. Barton. Would the gentleman suspend?
        We put this chart up. We have given you a copy of the
    chart, Mr. Secretary; and we are handing out copies to the
    members of the subcommittee.
        The red line on that chart shows the historical funding
    profile from the appropriation committee, which is about $370
    million a year. The bars by year are the Department of Energy's
    estimate for Yucca Mountain in terms of annual funding. It is
    obvious that, beginning in the year 2003, according to the most
    recent information that we have from the Department, that the
    funding request to build the repository, if it is built at
    Yucca Mountain, exceeds by orders of magnitude the funding that
    is going to be available.
        Now those are not committee numbers. Those are official
    Department of Energy numbers. So we are going to have a funding
    problem regardless of the solution.
        The chairman has just laid it out very well. The gentleman
    from Michigan, who left after asking his questions, asked you a
    similar question. So one of the things that we need to come out
    of this hearing, Mr. Secretary, is an acknowledgment that,
    whatever the solution is, the permanent repository is going to
    require a change in strategy about funding. We cannot keep
    putting $660 million into the nuclear waste fund, take out $150
    million, spend the rest on other Federal programs, and then
    wonder how we are going to pay for the repository. Do you agree
    with that?
        Mr. Richardson. Yes, I am here to acknowledge that.
        And the chairman's question is well taken. Both the
    Congress and the administration entered into budget agreements
    that would necessitate that, after the year 2002, whether we go
    our interim storage way or your interim storage way, we are in
    the outyears going to most likely look at additional funding
    needs for Yucca. There is no question about that.
        Mr. Barton. I am going to----
        Chairman Bliley. I am finished.
        Mr. Barton. Before I recognize Mr. Hall, let me ask one
    question.
        Mr. Secretary, we need specific proposals from your
    Department on this. We cannot wait until 2003. I mean, I do not
    expect you to put it on the table this second, but in the next
    week or 2 we would really like some proposals on how to fix
    this. Because this subcommittee, we are not sure exactly the
    parameters of the legislation that we are going to move, but we
    fully intend to move a bill within the next week or 2. So it
    would be nice--we will incorporate and work in a cooperative,
    bipartisan, executive-legislative branch way on this problem.
    And as far as I am concerned Mr. Secretary, any approach that
    your Department put on the table we will look at in an open
    way.
        Mr. Richardson. Well, Mr. Chairman, I welcome that. Because
    I told my staff that I did not want to come up to this
    committee hearing, which, as I understand it, would take the
    first step before the other body in dealing with this issue,
    and appear to have submitted a proposal fully fleshed out
    without consulting with you. So I welcome this ability to take
    a look at our proposal and see if we can flesh it out more and
    deal with the funding issues.
        But I will say to you I think you summarized it well. We
    are going to have a problem on the funding issue, in the
    outyears, regardless of what position we take. We are ready to
    work with you on that and also on other issues. If you are
    ready, Mr. Chairman, to engage in a dialog on how we can flesh
    that out better, that is our proposal. We would be pleased to
    do that.
        Mr. Barton. The Chair would recognize Mr. Hall for 5
    minutes.
        Mr. Hall. Thank you.
        Mr. Secretary, the U.S. Court of Appeals and the Court of
    Federal Claims has been pretty clear, I think, in pointing out
    DOE's unconditional obligation to remove the spent fuel from
    utility sites. How does your proposal to take title to it at
    the sites--how does that meet that obligation?
        Mr. Richardson. Let me deal with this this way----
        Mr. Hall. And to make it a little easier for you, won't
    your proposal have the effect of creating I think, as you
    pointed out in your testimony, 72 de facto Federal spent fuel
    storage sites in 33 States? And wouldn't that constitute an
    endorsement by the Federal Government of what a lot of people
    think is an ill-conceived notion to simply leave the spent fuel
    at utility sites indefinitely? And what are we going to do
    about those people that have no more storage at these sites?
        Mr. Richardson. Congressman Hall, you are right. There are
    72 reactor sites located in 33 States. Ten of these States have
    dry cask storage facilities in addition to pool storage--South
    Carolina, Maryland, Virginia, Ohio, Michigan, Minnesota,
    Arizona and Wisconsin.
        My proposal, our proposal, what we are advancing here is
    consistent with environmental law. The Nuclear Regulatory
    Commission licenses these facilities. The utilities have done a
    good job of keeping these spent fuel casks or pools safe.
        Now, our proposal, Mr. Hall, says this. It does not make
    sense to transport spent fuel around the country until we
    complete the scientific work and know that Yucca is going to
    work. We, again, think that spent fuel is currently stored at
    these sites in a safe way. We can continue to keep these safely
    stored until we open a repository.
        I mention again, they are operated and licensed and
    regulated by the Nuclear Regulatory Commission. Most of these
    reactors have dry cask storage facilities on their site. They
    have licenses specifically for storage of spent fuel. The take-
    title proposal is not a permanent solution. It is a temporary
    solution, a near-term solution that addresses our contractual
    obligation to utilities. It is practical. It would be safe to
    implement.
        And I worry because like I know you do, Congressman Hall,
    in the first three cases decided by the court dealing with
    shutdown reactors, the Department was found to breach its
    contract. We lost $288 million. We haven't lost it yet, but the
    court claims said that this is the amount claimed.
        What I want to do is find a way to take title, take
    responsibility, take liability and have the utilities stop
    suing us, to resolve these disputes by the utilities taking
    back their lawsuits. We are all liable here. Whether it is the
    ratepayer using the Nuclear Waste Fund to pay for what we are
    doing, or it comes from appropriations.
        Mr. Hall. Well, I think you are very logical in being
    concerned about the litigation, because it is piling up on us.
    And it seems to me that an interim storage facility, though, at
    Yucca Mountain might help you settle those lawsuits or at least
    it might limit the period during which the committee is in
    breach of a contract. It would seem like that would be a help
    to you. Why wouldn't it?
        Mr. Richardson. Well, Congressman, because the legislation
    does not say that the utilities have to drop their lawsuits. It
    does not address it, and they continue to sue us. The
    utilities--only a few have approached us and wanted to settle--
    they see the courts moving their way, and they are not
    settling.
        I don't want this country or the Department of Energy or
    the taxpayer to have to pay for this. We have acknowledged our
    slowness in delivering. Now, it is important that we correct
    the problem, and I think our proposal deals with that problem.
    In H.R. 45, one still has to pay damages, and we do not think
    that that is in the best interest of the taxpayer.
        Mr. Hall. Thank you.
        Mr. Barton. The Chair would ask unanimous consent that the
    gentleman from Texas be given 1 additional minute.
        Mr. Hall. Thank you, I will take another.
        Are you optimistic about being able to reach a settlement
    with the utilities that have filed suits? And if you do, what
    authority are you going to need in this act or in an act from
    Congress to be able to effect settlements? I mean, you are
    going to have a settlement of some type; and if you can
    mitigate it as much as possible, you will be doing us a great
    service. Or maybe your lawyers are still studying this.
        Mr. Richardson. Congressman Hall, we want legislation. We
    believe we cannot act on what I have advanced without
    legislation. And we would want, if legislation is ultimately
    drafted to basically limit or terminate the utilities' ability
    to sue the government if we are going to take title.
        If we have H.R. 45 and it passes, Congressman, we will
    still be liable. We are now liable at $288 million. These are
    the first three cases decided by the court. Ten utilities have
    filed claims seeking damages anywhere from $1.5 million to $70
    million, totaling $8.5 billion.
        Let's assume the courts rule in favor of all the utilities.
    We have dissipated the Nuclear Waste Fund. So one of the
    reasons that we have advanced this proposal is to eliminate the
    enormous liability that we all face.
        Mr. Hall. I thank you, Mr. Chairman.
        Mr. Barton. The Chair recognizes himself for 5 minutes.
        Mr. Secretary, let's kind of cut to the chase here. I have
    got a number of questions, but Congressman Hall just asked a
    very good question, and you answered it I think in a fairly
    good way. If we were to include liability limitation for these
    liabilities in this legislation and work out the funding
    problems, would the administration remove its veto threat?
        Mr. Richardson. Mr. Chairman, we still have the problem of
    moving the waste, transporting to the site. We still have the
    issue of not having completed the scientific work at Yucca,
    suitability in 2001.
        Mr. Barton. I understand that, Mr. Secretary. We are
    talking about an interim solution while we work on the
    permanent repository. I am not asking you to stipulate before
    the fact that the repository permanently is going to be at
    Yucca Mountain, because the scientific data is not in. This is
    an interim bill.
        Now, we are closer than you think. We both agree, the
    administration and the Congress has agreed, there needs to be
    an interim solution. The Congress' interim solution is to
    consolidate the waste in one location. The administration's
    interim solution is to take title at 72 locations, or however
    many locations there are. Neither side is saying there
    shouldn't be an interim solution. We are just arguing over
    where it should be.
        Now, according to the Departments's own numbers, the in
    situ take-title solution costs $2 billion to $3 billion. The
    consolidation in one location solution costs $1.5 billion,
    according to Department numbers, plus transportation. But the
    transportation number is, in a way, a phantom number because
    you are going to transport at some point in time to a permanent
    repository. So I don't necessarily agree that that ought to be
    included as part of the calculation.
        So, again, this should be a solution hearing, or it could
    be. I want it to be, and I think you want it to be. So if we
    work on what Mr. Dingell was talking about and Mr. Bliley and
    Mr. Hall, we can work out this funding profile problem, which I
    think we can. And if we can work out the problem that you have
    repeatedly enumerated in your testimony about liability because
    the Department has not taken title, I think we could get a
    bipartisan agreement to put some sort of a limited liability
    section in the bill.
        But my position is going to be we cannot do that if we do
    not get a veto threat revocation. There is no reason, quite
    frankly, for us to agree to what you are wanting--not you
    personally, but the administration--if you are still going to
    veto the bill.
        Mr. Richardson. Well, Mr. Chairman, we still have to let
    science dictate whether Yucca is suitable----
        Mr. Barton. And we are not----
        Mr. Richardson. [continuing] and that has not happened. I
    have got my scientists right here. All they do is study this
    issue. And Congressman Shadegg was there with them. That is all
    they do. They told me that they cannot make the decision until
    2001.
        So what I am saying is our proposal to take title is an
    interim solution that would cause minimal problems, would
    remove our liability, would keep the Nuclear Waste Fund intact,
    and would also, in our judgment, protect the public. These are
    NRC licensed facilities. I don't think it is fair to
    characterize our proposal is having 72 sites. These sites are
    already there. They are properly licensed.
        Mr. Barton. But by your own testimony there are 72 sites.
        Mr. Richardson. That is where they all are right now.
        Mr. Barton. We want to put it in one place. You want to put
    it in 72 places.
        Mr. Richardson. Mr. Chairman, under your proposal we have
    to transport in 33 States. All of them going straight to Yucca.
    That is an additional cost.
        Mr. Barton. Well, you are going to have to transport it at
    some point in time to a permanent place. You agree with that?
        Mr. Richardson. Yes, but why do it twice before you know
    whether or not Yucca is safe? We don't know that yet.
        Mr. Barton. I don't want to use up all of my time, but what
    I just put on the table is a real deal, but you have got to put
    something on the table, too.
        Mr. Richardson. Well, I did. And, Mr. Chairman, I think,
    assuming the utilities are going to come all of a sudden and
    say we are going to drop all the lawsuits----
        Mr. Barton. Now, we haven't even talked to them about that,
    but we can. It is possible. The first amendment gives me the
    right to talk to utilities, and they can talk back to me.
        Does the administration support a permanent repository
    beginning to take waste by 2010? Is that a goal of your
    administration?
        Mr. Richardson. Yes, to open it by 2010, a repository, yes.
        Mr. Barton. Okay. You do support that?
        The Chair would ask unanimous consent for 2 minutes to run
    through some math.
        Mr. Shimkus. New math or old math?
        Mr. Hall. Who are you asking?
        Mr. Barton. I am asking the committee. My time has expired,
    and I would like 2 additional minutes to run through some math.
    Okay. The Chair is recognized for 2 additional minutes.
        I want you to get your pen and pad of paper there, Mr.
    Secretary; and any members of the subcommittee that want to
    follow along are welcome to.
        The Department of Energy's number for the permanent
    repository construction is $10.7 billion. So put $10.7 billion
    down. The Department of Energy's interim number based on H.R.
    45 is $1.5 billion. Put that down. That adds up to $12.2
    billion. The Department of Energy's number for interim
    transportation charges is between $1 and $3 billion. So we will
    put the bigger number, we will put $3 billion. That adds up to
    $15.2 billion. Is that what you get, Mr. Secretary?
        Mr. Richardson. Well, Mr. Chairman, you added an extra
    billion there on mine. We estimate it will be $2 to $3 billion.
        Mr. Barton. I am talking the interim, not your onsite. I am
    talking if we do the interim location under H.R. 45. Your
    testimony says it will cost about $15 billion. So that gives us
    $15.2 billion. Now, we are taking in $660 million a year in the
    nuclear waste fund. Multiply that times 12 and you should get
    $7.92 billion. Is that what you get?
        Mr. Richardson. Well, not as rapidly as you did, but I will
    take your word for it.
        Mr. Barton. Okay. We have $8 billion in the fund. So if you
    add $8 billion to $7.9 billion, you get $15.9 billion. Is that
    what you get?
        Mr. Richardson. Yes.
        Mr. Barton. Is $15.9 billion a bigger number than $15.2
    billion? Is it, Mr. Secretary?
        Mr. Richardson. It is bigger.
        Mr. Barton. Okay. Then I will stipulate, Mr. Secretary,
    that if we work together on the funding problem, we can come up
    with a solution to build the repository and locate an interim
    storage facility within the nuclear waste fund. And if we can
    do that, we can go to the utilities and work with them on a
    legislative solution to your liability problems that you put on
    the table.
        Mr. Richardson. Mr. Chairman, you are still proposing that
    spent fuel be moved to Nevada and that a decision be made in
    advance of a suitability decision.
        Mr. Barton. The chairman is saying--you will agree, though,
    that the math works?
        Mr. Richardson. Mr. Chairman----
        Mr. Barton. A simple yes or no?
        Mr. Richardson. Right at this moment, your math is a little
    better than mine.
        Mr. Barton. All right. The Chair would recognize Mr. Markey
    for 5 minutes. Thank you, Mr. Secretary.
        Mr. Markey. Thank you, Mr. Chairman.
        Now there are a lot of variables here. As we know, the more
    the free market principles hit the nuclear industry, the more
    likely that these nukes are just going to shut down and shut
    down soon so that their contributions to the nuclear waste fund
    is not going to be as significant over a 12-year period. So
    there are a lot of variables here, including what we do on
    electricity restructuring and what a lot of the individual
    States do.
        Now, Mr. Secretary, I remember when Newt Gingrich used to
    say that Bob Dole was the tax collector for the welfare State.
    And it seems to me that we have got pretty much the same
    situation in our committee right now, and it results from the
    fact that the Budget Committee and the Appropriations Committee
    apparently views the Commerce Committee as the tax collector
    for their energy and water pork barrel projects for their
    members on their committee.
        Because, in other words, there are goals set by the Budget
    Committee that are imposed on the Appropriations Committee
    which keep spending caps as low as possible. Then the
    appropriators have to raid the waste fund in order to pay for
    all of the water projects that are out in the Appropriations
    Committee members' districts. And so that red line that goes
    across is the line which is set by the Appropriations
    Committee, notwithstanding the good work which is done by the
    Commerce Committee in establishing a program that would
    generate significantly more revenues to be able to deal with
    the problem.
        Now, of course, I don't think that most of these water
    projects that are built are in our districts. And I understand
    the way the game is played, and I don't like being the tax
    collector for the Appropriations Committee. That then doesn't
    solve our problem but results in lawsuits being brought by
    utilities saying that our law does not work because what we
    should be doing is declaring war on the Appropriations
    Committee and bringing bills out on the floor demanding that
    they stop creating conditions which make it almost inevitable
    that utilities are going to sue the Department of Energy
    because we have given them an impossible act to fulfill.
        You know, if the aviation committee came in here and
    testified--if the aerospace industry came in here and testified
    15 years ago that it was absolutely possible, as the utility
    industry did on nuclear waste to bury it safely, that it would
    be possible to have commercial travel to Pluto by the year
    2002, and then we went ahead with this program and they signed
    up 100 million people with nonrefundable tickets and we somehow
    or other couldn't build spaceships to Pluto by this time, they
    would sue us to collect on the nonrefundable tickets which they
    had contracted with all their consumers.
        So here we are now depending on the electric utility
    experts who testified in 1979 that we could build a permanent
    repository and pass legislation, and it was to, of course,
    undertake the goal of performing an impossible act in such a
    period of time. So impossible, by the way, that we picked
    Nevada. We picked Nevada in this committee in 1988. Let us not
    forget that. To make it even more impossible. We picked it. We
    picked Nevada. Not the experts, not the scientists, the
    committee, us.
        We thought it should be in Nevada mainly because they only
    had one Congressman and two Senators at the time. We pulled the
    thermonuclear Queen of Spades right out of our pocket. Now we
    are getting sued. And, of course, the appropriators say, by the
    way, we are not even going to give you all the money that you
    were intending on raising for this project; and good luck, Mr.
    Secretary. Try to solve this problem for us.
        So I think what we have to do here is look at a bill that
    Mr. Upton introduced about 3 years ago that would solve this
    funding problem. Do you remember that bill, Mr. Secretary?
    Would you recommend to this committee that we pass Mr. Upton's
    bill? Do you think that would be advisable?
        Mr. Richardson. No.
        Mr. Markey. You don't?
        Mr. Richardson. We would oppose it.
        Mr. Markey. The Upton bill that dealt with the funding
    issues. Are you familiar with that bill?
        Mr. Richardson. Is that H.R. 45?
        Mr. Markey. No, not H.R. 45. Another bill that was
    submitted, H.R. 1174.
        Mr. Barton. The gentleman's time has expired.
        Mr. Richardson. We would oppose it.
        Mr. Markey. You would oppose that bill, too? Thank you.
        Mr. Barton. We appreciated that monologue.
        Mr. Burr is recognized for 5 minutes.
        Mr. Markey. Can I ask unanimous consent for an additional 2
    minutes?
        Mr. Barton. You may.
        Mr. Markey. I thank you, and I very much appreciate it. I
    have got to get these things off my chest.
        Mr. Barton. Is there objection to the unanimous consent
    request for 2 additional minutes?
        Hearing none, the gentleman from Massachusetts is
    recognized. We hope that there will be a question in this next
    2 minutes.
        Mr. Markey. There will be. As you know, most congressmen's
    questions come in the form of answers, so that is a problem for
    each of us.
        Now, the radiation release standards that EPA established
    for the waste repository in New Mexico set a limit of 15
    millirems a year for the most exposed group. H.R. 45 would set
    it at 100 millirems a year for the average person in the
    vicinity of the site. Do you think there should be a lower
    standard for people in Nevada than there is for people in New
    Mexico in terms of their exposure?
        Mr. Richardson. Congressman, we are right now working with
    EPA to set that standard. The final determination has not been
    made.
        In principle--as you know, I sat on this committee--no
    citizen from any State should be treated any differently than
    any other State. But, again, this requires a balance, internal
    dialog that is going on between the agencies. There have been
    different approaches by the various agencies. These are very
    technical issues that involve a number of standards. What we
    want to do is have a geological disposal decision to protect
    our natural resources and our people.
        Mr. Markey. In principle, should they have the same
    standard, though?
        Mr. Richardson. The site in New Mexico is a transuranic
    waste site. The site in Nevada is different. But, in
    principle----
        Mr. Markey. We are only talking about exposure to
    radiation, not the place in which the radiation is stored. Do
    you think there should be a similar standard?
        Mr. Richardson. Let me say, Congressman, that I think that
    it is very important that we not treat any citizen differently
    than others. These are different sites. You have to give me
    that qualification. New Mexico's site, the WIPP site, which
    gives me more problems than this site, is transuranic waste
    site. This site is high-level waste. EPA certified the New
    Mexico site. We agreed to open the New Mexico site after strict
    EPA standards. Those EPA standards were advanced last year. For
    some reason, the State of New Mexico keeps providing obstacles
    that prevent the site from opening.
        Right now, we are working on an EPA standard for Yucca.
    There are a lot of scientific, technical issues that we have to
    determine, that we have to decide we want to have an
    interagency process. We are having it right now. But I think
    that reflects the balance of different agencies. DOE does
    science. EPA looks at the environmental protection issue. We
    want to look at public safety. We want to look at health
    issues. But, in principle, no citizen is different than----
        Mr. Barton. I think we have heard the Secretary on that
    issue.
        The Chair would recognize the gentleman from North Carolina
    for 5 minutes.
        Mr. Burr. Thank you, Mr. Chairman. I actually found some
    similarities between a spaceship to Pluto and a permanent
    repository.
        Mr. Secretary, let me walk through what I have heard you
    say on the proposal for taking title. You tell me whether this
    is, in fact, correct.
        You are proposing to use the ratepayer money that is in the
    fund to fund the transfer of the title to leave the spent fuel
    at 72 sites around the companies if the companies will agree to
    waive their current or future litigation to save the American
    taxpayer money.
        Mr. Richardson. That is correct.
        Mr. Burr. Mr. Secretary, I have got to tell you that the
    disconnect between ratepayer money and taxpayer money--I mean,
    this is a right- and left-hand thing. I have got to tell you
    personally, and this is not directed toward you but toward the
    Department, I think the bar is being raised. I think the
    testimony from the Department of Energy in the past did say,
    when we finished last year's report, which came out, it would
    send us to firming up a decision. And I think that, in fact,
    the decision to move to 2001 now is inconsistent with the
    Department's testimony in the past.
        But let me move past that. Mr. Bliley asked you a question
    relative to the current storage capabilities that exist onsite.
    In many cases, companies are past their capacity; and I think
    you said we will work this out. Let me ask you, do you see in
    that Federal condemning of land to be able to increase the
    storage sites at these facilities?
        Mr. Richardson. No. I would see a negotiation with States
    or utility to secure land. No, I don't envision a hostile
    negotiation. We would want to respond to the needs of each
    individual taxpayer or utility.
        And, Congressman Burr, let me just tell you that I think
    there is not that much difference between the ratepayer and the
    taxpayer. When we are sued--and I mentioned that it is $288
    million that we are now--we have lost cases; and if it goes to
    $8 billion, it is uncertain whether this money, from the
    Justice Department's vantage point, should come from the
    Nuclear Waste Fund or from appropriated funds or our budget. S
    so either way the taxpayer is vulnerable.
        Mr. Burr. Would you acknowledge the fact that if you
    increase the size of a storage facility that it has an effect
    on the property values in a given area?
        Mr. Richardson. I think----
        Mr. Burr. Let's put safety aside for a second. It impacts
    an area, doesn't it? It impacts an area through land value and
    impacts an area because there is no local tax on Federal----
        Mr. Richardson. Congressman, all we are talking about is
    possibly a transfer of paper that gives title to the
    Department.
        Mr. Burr. So would the Department take all spent fuel
    onsite?
        Mr. Richardson. Yes.
        Mr. Burr. One hundred percent of it?
        Mr. Richardson. No, no, we would take title to the fuel
    destined for Yucca.
        Mr. Burr. So how would we manage where DOE has
    responsibility for maintenance of part of the fuel in a storage
    facility and the company has responsibility for the other part,
    which means that you have got dual licensing in the same
    storage facility?
        Mr. Richardson. You have to work it out in each case. You
    have to--in accordance with our specific contract with that
    utility. We have individual contracts and schedules with each
    of these utilities. This is something you work out. This is
    something that, with the standards on the safety, you work out
    with the NRC. You work it out to make sure that what we are
    talking about, which is--I almost can tell you that, in most
    cases, would be a paper transfer. For if it is not--let's say
    Wisconsin, I have not thought it through, but what we would
    envision is perhaps working something out where the utility
    people that have done this----
        Mr. Burr. But you would have to have a license because you
    held title with the Nuclear Regulatory Commission, wouldn't
    you?
        Mr. Richardson. It is already licensed. These facilities
    are already licensed.
        Mr. Burr. They are licensed to the company.
        Mr. Richardson. By the NRC.
        Mr. Burr. To the company.
        Mr. Richardson. To the utility.
        Mr. Burr. You take title from the utility who needs a
    license for that spent fuel; right?
        Mr. Richardson. Yes. Well, the utility would maintain this.
        Mr. Burr. The utility would maintain, but the license is
    going to be in the name of the person who holds the title,
    isn't it?
        Mr. Richardson. No, no, not necessarily.
        Congressman, you know I advanced this proposal about 10
    days ago. Maybe it is a little longer. It is complicated. You
    have all been dealing with this issue for years and you
    challenged me to come up with an alternative and not say that
    we are just going to veto H.R. 45. I have done that.
        My proposal is not perfect. It needs to be costed out. We
    need to talk to the utilities. But they are holding back until
    they get a signal from you whether you are interested in my
    proposal. Because I would think they would prefer H.R. 45, they
    can continue their suits and their problem is taken care of.
    Our problem is not taken care of, the ratepayer, the taxpayer,
    the Department of Energy.
        Mr. Burr. Two yes-or-no answers, because my time has run
    out.
        Mr. Barton. Would the gentleman yield on his expired time
    on that point?
        Mr. Burr. I would be happy to.
        Mr. Barton. Mr. Secretary, you keep telling us that you are
    trying to enter a dialog. We appreciate that, and you are
    entering a dialog. But we cannot act on dialog. Are you
    prepared to say you are going to produce a legislative proposal
    as an alternative for this subcommittee to look at?
        Mr. Richardson. Well, I am the Secretary of Energy. I have
    said there is an alternative. I have kind of indicated I kind
    of like it. If you are ready to work with me on legislation in
    the direction that I am talking about, of course I am ready.
        Mr. Barton. Well, we are ready to see a legislative
    proposal that has your stamp of approval on it.
        Mr. Richardson. Well, I don't know how much clearer I can
    be.
        Mr. Barton. You could, actually.
        Mr. Richardson. We will take title of the spent fuel. We
    want the utilities to drop their suits. We could pay for this
    from the utility fund. We would negotiate with each utility if
    they have a storage problem. You have to give us flexibility to
    negotiate it.
        Mr. Barton. Let me give you a legislative primer, Mr.
    Secretary. It is obvious that you have been out of the
    legislative arena so long that you have forgotten. But you get
    a Democratic Member of Congress, preferably on this
    subcommittee, you talk to them, they call the Office of
    Legislative Cunsel, they actually put words to paper, title of
    the bill, section 1, findings. We have something in writing we
    can look at. Okay?
        You are a good man. You put good ideas out. We cannot vote
    on the ether of good ideas.
        Does the gentleman from North Carolina wish additional
    time?
        Mr. Burr. Two quick yes-or-no questions. If in 2001
    scientific proof is that Yucca Mountain is a suitable place for
    permanent storage----
        Mr. Richardson. Is or is not?
        Mr. Burr. Is--would the Department of Energy be willing to
    then set up an interim storage facility for spent nuclear fuel
    and defense waste at a Yucca Mountain site?
        Mr. Richardson. No, because we have to abide by the
    legislation. The Nuclear Waste Policy Act is very clear on its
    goals. We still have to continue taking a number of safety
    measures. We have to continue ensure funding--you have pointed
    out the funding problem. We cannot have various solutions here.
    We believe the ultimate objective should be to site a facility
    in--in other words, open it up.
        Mr. Burr. So even if the decision is made that Yucca
    Mountain is a permanent place, you would never see endorsing
    Yucca as an interim storage facility?
        Mr. Richardson. That is a speculative answer that I would
    have to give you, Congressman. I think we have to look at--what
    I want to avoid----
        Let me also say this to the chairman, because I think he
    has been very gracious. I don't want to have a legislative
    train wreck on this issue. I want us to see if we can resolve
    it. Maybe it takes a little more time to enter into a dialog. I
    don't want to just put forth a bill and you all vote against it
    and do your bill.
        This is your choice. You are the legislative branch. I want
    to know if you are interested in exploring my proposal, the
    Department of Energy's proposal, and I am kind of getting mixed
    messages from this side sort of yes, although--and from you, I
    am getting a mixed message. And I would like to come back and
    continue this dialog, Mr. Chairman. I know you have to move
    toward legislation. I respect that. But what I don't want is
    another huge division. Because I can tell you we will oppose
    H.R. 45, and we will veto it. We will be exactly where we were
    before.
        Mr. Barton. Well, we are going to mark a bill up very soon,
    and it won't be H.R. 45 that is currently pending, but it will
    be similar, and it will be on paper. And if we can work with
    you, we can change it in a way that the administration finds
    acceptable.
        The Chair would recognize Mr. Norwood.
        Mr. Norwood. Mr. Chairman, before we start that clock, may
    I ask you a question? Are we going to have a second round of
    questions?
        Mr. Barton. If the gentleman from Georgia wishes, we will.
    Sure.
        Mr. Norwood. Mr. Secretary, again, thank you for being
    here.
        I want to ask you about this statement. The Department of
    Energy objects to the use of Yucca Mountain as an interim
    storage site because it was not based on objective, scientific-
    based criteria. Is that statement attributable to the
    Department of Energy? Is that a true statement?
        Mr. Richardson. Congressman, I don't know who said that.
    Did I say that?
        Mr. Norwood. I am asking, is that the position of the
    Department of Energy, that interim storage at Yucca Mountain is
    not possible because you do not have science?
        Mr. Richardson. Well, yes, I would support that.
        Here is my reasoning, Congressman. That we believe that it
    makes no sense to have a temporary site until you have settled
    on the final site; and, second, we have the transportation
    problem that we would have to deal with. So, in essence, yes. I
    believe that if I said that, along the lines that you
    discussed, I can support----
        Mr. Norwood. That is the large part of the reasoning, lack
    of science?
        Mr. Richardson. Transportation and--no, not lack of
    science. Transportation and the fact that we do not believe you
    should site a facility temporarily until you have made a final
    decision on Yucca.
        Mr. Norwood. Do you believe we cannot move nuclear waste,
    nuclear materials in this country safely?
        Mr. Richardson. I believe the Department of Energy has the
    safest and best achievable way of moving waste safely. I think
    we can. We have done it for years. We have done it in your
    area.
        Mr. Norwood. Yes, you have; and they have in Britain and
    France. So the actual movement of goods through the
    transportation system is not a real problem. It is just a
    problem you don't think we ought to do it right now?
        Mr. Richardson. It is not the safety, Congressman. It is
    the question of why move it when you don't have to, not the
    safety issue.
        Mr. Norwood. All right. Let me go over this statement
    again. The Department of Energy objects to the use of Yucca
    Mountain as an interim storage site because it was not based on
    objective, scientific-based criteria, and I read that over and
    over again. And here what it says and sounds to me like, the
    Department of Energy has decided to use Aiken, South Carolina
    and Burke County, Georgia and 70 other sites around the country
    as interim storage sites. That is how the words read to me.
        When you made the decision not to do it there, you have
    made the decision to keep 72 interim storage sites, and part of
    my question would be, if science is part of the problem, do you
    have any other objective science-based criteria saying that it
    is the thing to do to leave it in 72 sites around the country?
    And if so, I would request a copy of that science.
        Mr. Richardson. Well, Congressman, the NRC, the Nuclear
    Regulatory Commission, which this committee oversees and which
    I think we all agree is good at safety and science, certifies
    that these sites, the storage, the pools, the casks are safe.
        Mr. Norwood. So we are satisfied that we are very safe in
    the 27 sites?
        Mr. Richardson. Yes.
        Mr. Norwood. But we can't possibly be safe in the Yucca
    Mountain site as interim storage?
        Mr. Richardson. It is not the safety issue. It is, I
    mentioned, it is why move it when you don't have to, and
    prejudge the same----
        Mr. Norwood. There are good reasons why we probably have
    to. I won't belabor that, because I want to get quickly into an
    area which I think is probably a smoke screen, but it really
    interests me a great deal, and that is transmutation. High-
    energy accelerators can be used to convert spent fuel into
    waste with much shorter half-lives, maybe on the point of
    several hundred years.
        Now, I am less interested in the half-lives than I am in
    the volume. When you are talking about using an accelerator for
    transmutation, what are you really talking about in volume? And
    my understanding is that you reduce the volume down to about 6
    percent, and I wonder, is that a true statement?
        Mr. Richardson. You are really getting into the very
    detailed scientific areas, which I admit, but I will answer.
        Mr. Norwood. I understand. It is okay. Look, let the guy ,
    the scientist back there. But I may not want that.
        Mr. Richardson. Let me answer your question, Congressman.
    Under the appropriations act we are obligated to spend funds,
    $4 million, on research, on transmutation of waste. We think
    this is intriguing research. We are going to do that, possibly
    at the facility----
        Mr. Norwood. Unanimous consent for 2 more minutes, Mr.
    Chairman, so I can follow just this train of thought on
    transmutation.
        Mr. Barton. Without objection, 2 transmuted minutes will be
    added to your time.
        Mr. Norwood. Get me the answer on volume reduction, because
    I think that is very, very important. If we can transmute--and
    it is a theory, it is a mathematical theory, is it not?
        Mr. Richardson. Yes.
        Mr. Norwood. We don't know that we can do it, but I suspect
    that we can do it.
        Mr. Richardson. We don't know the answer to that,
    Congressman. We have got our best people at Los Alamos and at
    your facility nearby in Savannah that are working on that.
        Mr. Norwood. I am sorry, Bill. Part of the question though
    here is, if you transmute the material, what is the difference
    in volume if you transmute the material, burn the material, if
    you will, as it is, versus burning the material after it could
    be reprocessed and made into mixed oxide fuel? Is there a large
    volume difference between burning it as is or burning after it
    has been reprocessed?
        Mr. Richardson. Congressman, I will ask my scientist to
    answer that question, as long as he just sticks to the science
    and leaves the policy and the politics to me.
        Mr. Norwood. Here is where I am going, Mr. Chairman.
        Mr. Barton. Would the gentleman yield just a second on that
    point? The Chair would ask unanimous consent, before we get the
    answer to the question, to put into the record a technical
    paper entitled ``Accelerator-Driven Destruction of Long-Lived
    Radioactive Waste and Energy Production,'' i.e., transmutation,
    by Stan O. Schriber on behalf of the Los Alamos ATW team. And
    in this paper it states that it would take at least 65 years
    and cost $60 billion, and you would still have a high-level
    waste problem to deal with.
        Mr. Norwood. Which the volume, I am asking the question,
    that makes the difference.
        Mr. Barton. Is there objection to putting this into the
    record? So ordered.
        [The document referred to appears at the end of the
    hearing.]
        Mr. Norwood. The other part of this for me is that if an
    accelerator can be used for transmutation, can that same
    accelerator, with alterations, I am sure, be used to produce
    tritium? And if that is true, then--well, there is a good point
    here--if that is true, then we can have a complete circle to
    eliminate the volume that Jimmy has got to take out in Yucca
    Mountain, because if you do mix oxide and reduce the volume,
    and you transmutate and reduce the volume, and at the same time
    produce medical isotopes and tritium, you have got a pretty
    neat package right there. I am wondering what the possibility
    of this is.
        Mr. Richardson. Congressman, you are being very skillful in
    linking all of these issues. I have made my decision on tritium
    because it is by far the cheapest, it gives us the most
    flexibility.
        Mr. Norwood. I am not asking you to change it. But I know
    you are a good enough man, if we come up with a better solution
    and deal with this waste as well as making tritium, and could
    package it and save the taxpayers a lot of money, but more
    importantly, reduce the volume that Jimmy has got to take, we
    might have a deal.
        Mr. Barton. Let us get a technical answer to that question,
    and then we are going to let Mr. Shimkus have his first 5
    minutes.
        Mr. Barrett. Regarding--Lake Barrett, DOE--regarding the
    volume, the most concentrated part of the toxic material would
    be a reduced volume. There would also be a volume increase of
    the lower level actinides as well. On one part, it is better;
    on the other part, it is not. This would depend upon
    reprocessing, you know, fairly complicated nuclear processes.
        Mr. Norwood. I am going to need a lot more. I will put it
    in writing.
        Mr. Barton. The gentleman from Illinois is recognized for 5
    regular minutes.
        Mr. Shimkus. Thank you, Mr. Chairman. I would love to have
    played baseball against the Secretary, probably a cagey batter.
    I would have loved to call signals beyond the plate.
        Mr. Barton. He was a good batter and third baseman too. He
    was, very, very good.
        Mr. Pickering. Would you yield just a second? As Secretary
    he is still eligible to play, isn't he, as a former Member?
        Mr. Richardson. No, I can't. You are very exclusionary
    unless you are a sitting Member.
        Mr. Pickering. We have some Senators play.
        Mr. Barton. We would waive the congressional rules if the
    Secretary wishes to come out. I might even come out of
    retirement.
        Mr. Shimkus. They need you, need you desperately on the
    other side, Mr. Secretary.
        Mr. Barton. We are going to start your 5 minutes over.
        Mr. Shimkus. Thank you, Mr. Chairman. Representing the
    State of Illinois, I will set the record straight on
    Commonwealth Edison. I think they are lukewarm to the proposal.
    And I am looking at some hybrid. I don't think you can
    characterize them as doing backflips about it at this time.
        The second thing is, I have to respond to my good friend
    and colleague Ed Markey, I am not so pessimistic about the
    nuclear power industry. If we move on the issue of global
    warming, nuclear power will have a significant role in our
    Nation's energy needs, and it does today, I don't know, 40
    percent of the energy production or something to that effect.
        And also in response to my good colleague from
    Massachusetts, the spending caps were agreed upon by the
    administration in the Balanced Budget Act that I voted for and
    the President did sign.
        Mr. Secretary, I need to move to this moving of the goal
    posts issue. Based upon, you know, my brief tenure here and my
    research, and I have the Congressional Record on October 1,
    1997 where Director Raines in OMB says, and I quote,
    ``Therefore, the President has stated that he would veto any
    legislation that would designate an interim storage facility at
    a specific site before the viability of a permanent geological
    repository, Yucca Mountain, has been determined.''
        Okay, and we have already passed that. Now we are having a
    debate over if we get to the suitable site, will then the
    administration accept an interim storage site, which I think in
    your opening statements you said, you know, that is the time
    when we are going to start looking at what we can do and how do
    we move waste. But then in the question and answer period you
    have stated that even if the site is deemed suitable, we still
    may not consider locating an interim site at Yucca Mountain.
        So the goal post has moved, and it has moved three times,
    and I don't think anybody can say that it has not. If you
    would, I would like to get out that same piece of paper that
    Congressman Barton had us mark on and put down two numbers,
    2001 and 2003, and ask the question, which is the earlier year?
        Mr. Richardson. Between 2001 and 2003?
        Mr. Shimkus. Yes, sir, Mr. Secretary.
        Mr. Richardson. 2001.
        Mr. Shimkus. Now I think we have got a good opportunity for
    an agreement. Based upon the suitability of the site, H.R. 45
    says the acceptance of waste at an interim site would occur in
    the year 2003; is that correct?
        Mr. Richardson. Yes.
        Mr. Shimkus. I am a cosponsor.
        Mr. Richardson. Yes.
        Mr. Shimkus. The suitability of the site will be determined
    at the year 2001.
        Mr. Richardson. Right.
        Mr. Shimkus. Don't you think we could come back at the year
    2001, if the site is deemed not suitable, and halt the interim
    site?
        Mr. Richardson. No, because first, Congressman, I want to
    set the record straight. This administration said we would
    never--that we wouldn't support interim storage. I mean we have
    always been consistent there. After viability, we have always
    opposed interim storage. Our position has been let us do the
    major event, and that is the permanent repository. That has
    always been our policy.
        What I am saying, Congressman, if you look at the Nuclear
    Waste Policy Act, if Yucca is not suitable, you all have to
    change the law and we reopen the issue once again. That is what
    I want to stress to you.
        Mr. Shimkus. Won't we have to do that anyway?
        Mr. Richardson. No.
        Mr. Pickering. Would the gentleman yield just a second? And
    again I would give up some of my time.
        Mr. Barton. The Chair will give the gentleman from Illinois
    2 additional minutes, and then if he wishes to yield to the
    gentleman from Mississippi, he may.
        Mr. Shimkus. I would yield.
        Mr. Pickering. Can we not write in H.R. 45 a trigger
    mechanism so that we would not have to come back and reopen an
    act, but simply say we would move to interim storage in 2003,
    dependent upon or contingent upon scientific determination of
    suitability in the year 2001? So that the trigger is there that
    if it is not suitable, then that vetoes, in essence, doing an
    interim storage site in 2003. Would that not address both of
    our concerns without prejudging the decision?
        Mr. Richardson. Congressman, I don't think so, because the
    point has always been the same. We don't want to make a
    decision now on interim storage in advance of the science
    decision at Yucca. Now, if we did the Congressman's initiative
    of the trigger and the 2003, we need to start right away to
    build permanent and interim storage to meet the 2003 deadline,
    and we would invite more litigation.
        See, what the utilities need is a signal from you that you
    think my proposal on taking title makes sense. Otherwise they
    are just sitting back and trying to find what is the deal for
    them financially and whether they can get enough support in the
    committee, so we are at a standstill.
        Congressman, I want to resolve the problem that you posed,
    a very good summary, right now and take title now, deal with
    the problem now, with minimal risk; and I believe funding-wise,
    after we do broad projections, even beat the chairman's money
    line, but not expose ourselves to more litigation. We are not
    addressing litigation issue as much as I wanted to in this
    hearing.
        We are being sued. We, the government, the Department of
    Energy, the ratepayer, the taxpayer, you, are losing. And we
    believe that our initiative deals with that problem most
    effectively. And while you have triggers and others, I have not
    yet heard of ways of dealing with the utilities and their
    losses.
        Mr. Shimkus. Mr. Secretary, I have to agree, I think we
    have come two directions in this hearing already. We have, one,
    said that we could write into the legislation what was
    requested, which would be a great savings, to address the
    litigation of the utilities. And I think that the chairman was
    very clear on that, and I think that was part of the addition
    exercise we had.
        The second thing we moved on is a possible trigger in line
    with previous statements by the administration on viability,
    then suitability, and now post-suitablility. I think this is a
    very important exercise, and I think we are making a good faith
    effort, and I hope that the Department of Energy would do so
    also.
        And I would yield back my time, Mr. Chairman.
        Mr. Barton. The Chair would recognize the gentleman from
    Mississippi for 5 minutes.
        Mr. Pickering. Thank you, Mr. Chairman.
        And, Mr. Secretary, I do appreciate your efforts. You come
    with a reputation, and the administration has obviously seen
    your ability in sending you on peace missions to the U.N. and
    now to the Department of Energy, you have the reputation as a
    problem solver, as a peacemaker, and as the good Bible says,
    blessed are the peacemakers. So I do hope that we can find a
    way--and it is going to be in that spirit that I want to go
    through some questions, establish some premises, and then try
    to ask you, is there some consensus that we can build?
        The first question goes back to something that Chairman
    Barton raised, and that is realistic funding. I am going to
    come back and talk about those questions you raised on
    liability and different things that hopefully we can work
    around. But again, based on the figures provided by DOE, the
    nuclear waste program would need as much as $1.3 billion during
    the outyears shown in this chart. That is $1 billion above the
    current funding levels.
        Given the appropriations cap, do you seriously think
    appropriators will slash other programs, including other DOE
    programs, by $1 billion per year and shift the funds to the
    nuclear waste program?
        And, you know, if you look at the total numbers that you
    are talking about through 2010, you are basically talking--and
    if you went with your proposal on interim storage in 72 sites--
    an additional $2 to $3 billion for a total of $12.3 billion,
    about a $4 billion funding level. So you are almost $10 billion
    above what is necessary, and I am afraid no one on this
    committee feels like we will be able to achieve those funding
    levels.
        My question is, given the likelihood of DOE projections
    saying that under those current funding levels, we won't have
    permanent storage until 2020, 2025, and that just increases the
    costs of your proposal, what is a way that we can do a better
    job, given the funding constraints? And do you think we can get
    the funding to meet your 2010 deadline?
        Mr. Richardson. Well, Congressman, you have very
    articulately posed the problem, and I am willing to acknowledge
    that. I did so to the chairman and the ranking member. And that
    is that after 2003, regardless of what solution we adopt,
    interim, Yucca, permanent, we are going to have funding
    problems in the outyears, and we are ready to work with you to
    deal with that. We believe that if we have been able to resolve
    the problem, that Congress in its wisdom, with the
    administration, would give us the funds to do the job. But I am
    acknowledging that it is a problem.
        Mr. Pickering. And this gets back to, you know, our basic
    core problems, as I sit and listen: your immediate liability,
    litigation costs and problems; as we look out, the long-term
    funding issues, and what could be a possible middle ground
    between the proposal that you have made and H.R. 45.
        Let me walk through something and ask--and again I am not
    doing this, and this is my own individual initiative, so
    whatever I say, take it in that context. But if we said at the
    beginning you take title to the spent fuel in the 72 sites
    around the country to address the immediate liability issue;
    2001 there is a determination made on the viability and the
    suitability of Yucca Mountain; 2003, now if we have to give
    longer lead times because of the construction and the
    permitting issue that you have raised, perhaps we can work with
    you. But once the 2001 suitability determination is made, we
    then trigger the interim storage at Yucca Mountain.
        And so there is a combination of your immediate issue with
    going to an interim storage, and it is realistic on the
    outyears of the funding. If we are going to be 2015, 2020, 2025
    on permanent storage, this proposal, one, reduces environmental
    and safety risks, it will be a lower cost, and it addresses
    your immediate liability needs.
        Would you work with us on that type of framework?
        Mr. Richardson. You know, Congressman, I have said that
    this is a decision that needs to be made on science and no
    other factors. I think the people of Nevada deserve to know
    that science in 2001 says that in their State, in the air they
    breathe and the ground that is theirs, that we have told them
    that we can have a safe permanent repository at Yucca.
        Now, I can't tell you this right now, although you
    mentioned a viability assessment which my scientific experts
    just concluded in December, that was mandated in the law and we
    brought it in on time, that said there are no show-stoppers but
    there are some problems that need to be resolved, namely in the
    area of water. I can't posit and make a decision now until I
    know the science is going to say Yucca is ready and
    scientifically sound.
        Mr. Pickering. Mr. Secretary, we wouldn't ask you to do
    that. We would simply say in the law, if the determination is
    made, no prejudgments, no bias, no prejudice, if a decision is
    made, then we could move on the interim. But in the immediate
    concern that you have raised, we possibly can work with you on
    taking title, assuming the title of the spent fuel until we
    make that determination, and then we have the transition to an
    interim storage, and then we tack a realistic view of long-term
    funding for the permanent repository.
        Mr. Richardson. Well, Congressman, you are moving in my
    direction then. You are, I think, if I heard you correctly
    about the take title. What I would like to do, Mr. Chairman----
        Mr. Pickering. If we make movement to you on the title in
    the first 5 years, would you make movement to us in the next 5
    to 10 years on the interim?
        Mr. Richardson. You are a tough negotiator, and I
    appreciate your nice words that you said before. But I think if
    this is truly the good-faith effort that I hope exists, I would
    hope, Mr. Chairman, that you give us time to talk to utilities,
    and you should do so, too, environmental groups, consumer
    groups, the State of Nevada, and see if our proposal, which I
    would obviously like to be the starting point, can be improved.
        Mr. Barton. It can be improved.
        The Chair is going to recognize the gentleman from Kentucky
    for 5 minutes. But we share the same good-faith effort, I want
    to assure the Secretary.
        Mr. Whitfield. Mr. Chairman, thank you very much.
        And Mr. Secretary, I also appreciate your being here and
    helping us try to come up with some solutions to very a
    difficult and costly problem. I want to just clarify a couple
    of things.
        First of all, because of legislation, Yucca Mountain was
    identified, and so if because of scientific and technical
    reasons, the Department would make the decision that Yucca is
    not an appropriate site, we would be back to square one having
    to identify a new site. Do you agree with that?
        Mr. Richardson. That is right, yes. That is in the law.
        Mr. Whitfield. Okay. Now, I know that you have stated a
    number of times that damages are a significant issue, which is
    obvious to all of us. What specifically--I notice in your
    testimony you talk about contractual obligations that the
    department did not meet, and because of that were found liable
    for damages. What specific contractual obligations did the
    Department not meet?
        Mr. Richardson. Well, to take the spent fuel in 1998. In
    other words--and this is why the courts ruled against us--that
    we would take it in January 1998.
        Mr. Whitfield. And that was because of legislation that
    required it?
        Mr. Richardson. It is in the contract. It wasn't your
    fault. It was the law, and then we put in the contract.
        Mr. Whitfield. Okay. So pursuant to the law, you entered
    contractual agreements with them and you were not able to meet
    those deadlines?
        Mr. Richardson. Yes.
        Mr. Whitfield. Okay. And then what the Department has come
    up with as a solution to this is taking title to the spent
    fuels at this time. That is what you are recommending?
        Mr. Richardson. A solution that needs perfection, it needs
    work, that we want to enter into a dialog, yes.
        Mr. Whitfield. When you say needs perfection, is there
    something we need to do to make that work, or is there
    something that only you need to do?
        Mr. Richardson. Well, we need to talk to the utilities. We
    need to talk to the environmental groups. We need to talk to
    the people in Nevada. We need to talk to consumer groups to
    make sure that some of the legitimate questions that have been
    raised about the dry casks and the pools, and whether some
    utilities have storage problems, how we deal with their
    problems. Each utility, each State is different. Yours is
    different than others.
        Mr. Whitfield. Okay. So taking title is a possible
    solution, but we have a long way to go to make that work as
    well, it sounds like. I mean there are a lot of variables out
    there.
        Mr. Richardson. Yes. The answer is yes, Congressman,
    because the utilities are still holding back, and they haven't
    come to us in droves and said, ``We love your proposal'' or
    ``We hate it.'' You know, they are all covering themselves.
        There is one organization, Nuclear Energy Institute, that
    goes and blasts my proposal and then calls and says, ``Oh, we
    really didn't mean that.'' Then there are others, Wisconsin,
    and I guess I shouldn't say Illinois any more, that have been
    favorable. Others are holding back.
        We have all of these secret channels that come to us
    saying, ``Hey, we want to talk, but we are not going to talk to
    you unless the Congress, this committee, thinks your proposal
    is viable.'' They would rather jump on H.R. 45 and move with
    that one. That is understandable. But I think you need to give
    a signal, the chairman, on where we proceed from here, and then
    maybe we can start actual serious negotiations.
        Mr. Whitfield. But as a possible solution to this, I am
    assuming you do not view the accelerator transmutation in
    progress as a priority way of solving it?
        Mr. Richardson. No, it is important. We have to--it is
    intriguing research, but I don't want to send a signal that
    that is a substitute to the work we are doing right now.
        Mr. Whitfield. Okay. How do countries like France and
    others that have nuclear power take care of their spent fuels
    on a permanent basis? I mean what technology?
        Mr. Richardson. Many of them have different initiatives.
    France reprocesses it, for example. It goes country-to-country,
    Congressman. But we are acknowledged to scientifically have the
    more viable solution in terms of how we deal with nuclear
    waste, that is generally acknowledged, ultimate solution.
        Mr. Whitfield. Would we be the first country that would use
    a Yucca Mountain-type solution?
        Mr. Richardson. Yes, we would be the first.
        Mr. Whitfield. Okay. I see my time has expired, Mr.
    Chairman.
        Mr. Barton. Well, you have waited patiently all morning. If
    you need another--we have given others 2 minutes. If you need
    additional 2 minutes, we would be happy to yield it to you.
        Mr. Whitfield. You are very kind, but we will let someone
    else ask questions.
        Mr. Barton. The Chair notes that the word has gone out that
    additional baseball talents are needed. The former catcher for
    the Democratic baseball team wearing the Cleveland Indians
    uniform, the Honorable Mr. Eckart of Ohio, has entered the room
    to backstop the Secretary in case you need it.
        Mr. Richardson. Who is a very good catcher.
        Mr. Barton. He was a good catcher.
        The Chair would recognize the gentleman from Michigan for a
    second round of questions of 5 minutes.
        Mr. Dingell. Mr. Chairman, thank you for your courtesy.
        Mr. Secretary, I will be submitting to you shortly a letter
    requesting a rundown on how we have done in terms of the
    expenditures versus the demands, the future, and how far the
    program has slipped over time. This will be done without
    criticism of you or without an attempt to abrade your feelings,
    but simply to establish how far we have fallen back both in
    terms of costs and in terms of reaching an expected completion
    date.
        But I want to ask you something now, Mr. Secretary. I note
    that the funding chart over there before us shows clearly that
    the future payments to the Nuclear Waste Fund cannot pay for
    the full costs of the repository program. Even if they did, it
    would be fair to say that the historical pattern of the
    appropriations process would not give the Department of Energy
    the full amount contributed in future years.
        It seems to me, then, that we need two reforms to this fund
    to fund the program fully. First, we need to make sure that the
    future revenue stream is protected, because we have diverted
    money from this revenue stream in the past.
        Second, we need to recover the $8 billion which has been
    built up by the ratepayers in the Nuclear Waste Fund. I would
    note that this could be translated to mean that, in other
    words, we need to ensure that every dollar that has been paid
    and will be paid to the Nuclear Waste Fund goes to the program.
    This would restore the program to the original status.
        What are your feelings on that statement?
        Mr. Richardson. I would agree with your statement,
    Congressman Dingell. I would also state that at the earlier
    part of your statement, the reason we have these
    appropriations-related problems is because of the budget caps
    that we would need to--regardless of what solution we jointly
    pick, we would have to deal with those outyears. It is a
    problem that is there regardless after 2003, but I would agree
    with the premise of your question.
        Mr. Dingell. I think it is also a fair statement, Mr.
    Secretary, at least from my view, that we need to take this
    off-budget simply to get the hot little hands of the budgeteers
    and the appropriators off of these moneys. What are your
    feelings on that statement?
        Mr. Richardson. Well, as a former authorizer, a member of
    this committee, I would agree with you. As a member of the
    administration, I think we would have to find a way to deal
    with the outyears. There is no question about--we have to
    resolve the problem that you just posed.
        Mr. Dingell. If I remember Gilbert and Sullivan, the Great
    Poobah at one point spoke in a capacity of a number of
    different officers of the government, and you remind me a bit
    of that this morning. I would observe, however, that as a
    concerned citizen, you would be very much concerned about the
    fact that these folks keep dipping into this fund as a cookie
    jar----
        Mr. Richardson. Yes, I am.
        Mr. Dingell. [continuing] to spend money on sweet little
    things that they would like to spend money on, that they could
    very well finance.
        Mr. Richardson. Yes.
        Mr. Dingell. Well, I just want everybody to know that I am
    thinking very strongly of making a real effort to try and see
    to it that these moneys are protected against those hot little
    hands, and that we are threatening the sanctity of this Fund
    and its ability to carry out the original congressional intent
    because of depredations by the Appropriations Committee and the
    Budget Committee.
        Mr. Barton. Would the gentleman yield?
        Mr. Dingell. I would be happy to yield.
        Mr. Barton. In the gentleman's absence, we discussed
    something very similar to what you just discussed with the
    Secretary, and there was a willingness on my behalf as the
    subcommittee chairman to work with you and the Secretary and
    other interested parties on that issue. That is something that
    we have put on the table while you were out of the room.
        Mr. Dingell. I am pleased to hear that, Mr. Chairman. I
    didn't have any reason to feel that we wouldn't feel about the
    same way about this matter.
        Mr. Chairman, I thank you for your courtesy to me.
        Mr. Secretary, it has been a pleasure to see you. Welcome
    back to the committee. You served here with distinction for a
    long time, and we have missed you, but we have followed your
    progress with pride and pleasure.
        Thank you, Mr. Chairman.
        Mr. Richardson. Thank you, Congressman Dingell.
        Mr. Barton. The Chair recognizes himself for what I think
    will be the last round of questions. I am just going to turn
    the clock off, since I am the only member of the subcommittee
    still here.
        First, Mr. Secretary, at the hearing that we had earlier on
    this issue where your representatives were present, we
    submitted a list of questions that we asked that they give
    answers in writing by March 1. As of yet we have not received
    those. Can you use your good offices to accelerate the receipt
    of those answers to our questions?
        Mr. Richardson. Mr. Chairman, we are working on these
    responses. We will provide them early next week. I understand
    that in the interim that the department has briefed members of
    your staff, provided copies of preliminary answers, especially
    with respect to the funding scenarios, so that you would have
    information before this hearing. But as I said, early next week
    we will get you all the answers.
        Mr. Barton. In response to a previous question of mine, you
    said that the department does support the construction and the
    operational beginning of a permanent repository by 2010; is
    that correct?
        Mr. Richardson. Yes.
        Mr. Barton. I just wanted to make sure of that.
        Mr. Richardson. Yes.
        Mr. Barton. As long as you are Secretary of Energy, do you
    personally also support that goal?
        Mr. Richardson. Yes.
        Mr. Barton. Well, that is good. I want to try to summarize
    where I think we are. We have common goals on the permanent
    repository. We have a legislative proposal before the Congress
    on an interim storage facility that would be located at Yucca
    Mountain, that the department opposes and has said it will
    veto.
        You have put forward, on behalf of the Clinton
    Administration, a proposal of interim storage--not interim
    storage, but interim ownership of the waste onsite. That
    proposal has not been fleshed out, nor has it been put in
    writing.
        You have asked repeatedly in this hearing what the Congress
    thinks of that, and I think that is a fair question. At this
    point in time I don't think very highly of it, because it costs
    twice as much, using your own budget numbers, as the H.R. 45
    proposal. It does not vitiate the pending litigation that has
    already gone against the Department of Energy. There would have
    to be some sort of a voluntary negotiation with each of the
    affected utilities for that issue to be taken off the table.
        So I can only speak for one member of the subcommittee, but
    as of this point in time, if you want to send a response to the
    utilities, if they are waiting for a response, I don't think--I
    know I don't support the proposal that you have initiated the
    dialog on, and I didn't see a lot of support except from Mr.
    Gibbons, who unfortunately is not a member of the subcommittee.
        But we will work, if you are willing to put it in writing,
    and flesh it out, we are certainly willing to work on that. The
    issues that we agree on, we need to work on the funding
    profile, regardless of what we do. I think we have established
    that. We agree that we have a date certain for the permanent
    repository to go into operation. We agree with that. We agree
    that we need to continue to do the science and make all
    decisions based on the best available science at the time that
    the decisions are made. We agree upon that.
        So I guess to summarize, Mr. Secretary, I am reminded of
    the elephant mating ritual. Both parties have the same goals in
    mind, but how to get there is a very delicate question and has
    to be handled very carefully.
        I am going to talk to Chairman Bliley early next week. I
    was under instructions to move this bill in February. And at
    your request, I told you that we would give additional time to
    engage in this dialog, and I have done that. Chairman Bliley
    told me earlier this week that he wants me to mark the bill up
    next week.
        Now, if we can show real convergence, we might be able to
    put that off, but it would require you as the administration's
    point person on this issue to really come to the table on some
    issues, one of which would be the willingness to forego a veto
    if we could reach a bipartisan agreement between the executive
    branch and the legislative branch. And so I think that is where
    we are.
        Would you like to--I will give you the courtesy as the
    Secretary of having the last word, if you wish to take
    advantage of that.
        Mr. Richardson. Well, Mr. Chairman, I think at least this
    hearing has lowered the temperature, and you have been very
    gracious, as have been members of the committee. I think there
    are some deep differences as to how we approach this issue. We
    are willing to engage in a dialog with you and your staff.
        I guess what I was looking for is you saying ``I like your
    proposal''--well, maybe not ``I like,'' but ``I am willing to
    discuss your proposal.'' I think what I just heard is that you
    don't like my proposal, but you want me to like your proposal
    with some slight modifications. I think that is what I am
    hearing. And perhaps we may not reach agreement, and everyone
    has to go their own way.
        What I would like to do is, if you are interested in
    hearing more about our proposal, you need to signal that. I
    think that would trigger the utilities, keep them from being so
    cautious. They are holding back. They want the best of all
    worlds. They want----
        Mr. Barton. I have never been a United Nations Ambassador
    and I never had to represent the United States of America at
    the Security Council like you have, so I am not as good at this
    as you are, but let me clarify. I do not like your proposal as
    a substitute for interim storage in one location. I may be
    willing to ``like it,'' to use your verb, if we combine the
    two: We do an onsite take title while we work on the interim
    storage, so that we work them together and have an interim
    storage facility located before the permanent repository is
    operational. So there is some room to work together on that.
        Mr. Richardson. Mr. Chairman, I am not sure----
        Mr. Barton. It is your turn.
        Mr. Richardson. Mr. Chairman, I am not sure there is, but--
    --
        Mr. Barton. Now, I am trying every way I can, Mr.
    Secretary, to keep the administration at the table. I mean we
    really have--we have got two ways to do this. We can just put
    our shoulder pads and helmets on and just flat try to get 290
    votes in the House and 67 in the Senate and beat the veto; or
    we can say, well, maybe we can really work together.
        And I don't see anything out there that we really cannot
    work together on. I would rather work with you than have to try
    to prove that my shoulder pads are bigger than yours. But I
    have got to make a decision in the next 2 weeks. I have got to
    go to Chairman Bliley, as you well know, and the Speaker, and
    say, you know, we have got to start the legislative process,
    and I think you understand that.
        Mr. Richardson. I understand.
        Mr. Barton. I am not telling you anything that you don't
    know very, very well. So we have put a lot on the table, Mr.
    Secretary, and we would like to hear you say something that
    would indicate that the administration wants to meet us, if not
    halfway, at least part of the way.
        Mr. Richardson. Well, Mr. Chairman, you know, you had
    previous Secretaries of Energy that have testified before you
    that said, ``We are going to veto interim storage,'' and I am a
    Secretary of Energy that has come back to you and said, ``We
    don't like interim storage because of the science, but I have a
    proposal.'' And I have advanced that, and I think you have to
    give the administration credit for that. You don't obviously
    think much of it.
        But I am ready to engage in a dialog with you. I don't know
    exactly what that means. I don't want to trigger or signal that
    I am ready to significantly alter my proposal. I am ready to
    discuss it more. I think, Mr. Chairman, our fundamental
    position is that because of science, we don't think we can make
    a suitability decision on Yucca until 2001.
        Mr. Barton. Mr. Secretary, is it your understanding that
    the administration's position is that you are never going to
    support interim storage at all, even based on science that is
    validated by the----
        Mr. Richardson. I have advanced a proposal that deals with
    the issue of interim storage, Mr. Chairman. Taking title is an
    interim storage proposal of sorts.
        Mr. Barton. Okay. Well, then, let me ask the question
    another way. Is it your understanding that the Clinton
    Administration would never support temporary consolidation at a
    central location on an interim basis, even if the science
    validated that?
        Mr. Richardson. Well, if we have science dictate our
    answer, Mr. Chairman, we can't come to an agreement on interim
    storage if it means making a decision before science does at
    Yucca Mountain.
        Mr. Barton. That is not my question, Mr. Secretary.
        Mr. Richardson. Well----
        Mr. Barton. I am not trying to play verbal gymnastics with
    you. I am honestly trying to see if there is a way we can meet.
    I don't think this committee , and I could be wrong, but I
    don't think this committee will accept this warm and fuzzy
    take-title at all of these various locations until 2010 or
    2015. I don't think that will work.
        So I think we can probably, possibly combine the two, but
    we have to--you know, you keep saying you want to hear from
    us--we have to hear from you as the spokesperson for the
    Clinton Administration that at some point in time, under
    certain conditions, that the centralization of the waste on an
    interim basis is acceptable.
        Mr. Richardson. Mr. Chairman, rather than continue this, I
    would suggest that we talk next week and decide how we proceed,
    and recognize that we may be heading in different directions
    and do so with the utmost respect. I think you have treated my
    proposal, this committee, with extreme courtesy and
    graciousness and consideration, and we respect the views of the
    Congress.
        If my proposal is not garnering much support, then you may
    wish to move the way you want, but at least we have put our
    proposal on the table. I would urge you to look at it more. We
    will try to answer more questions about it and discuss next
    week where we go from here.
        Mr. Barton. We will have a number of questions for the
    record, Mr. Secretary. And in order to, as you put it, look at
    your proposal, we do need to see it in writing. I think that is
    fair.
        Mr. Richardson. Okay.
        Mr. Barton. And we will go from there. All members will
    have a requisite number of days to put their written statements
    in the record if they weren't here in person.
        The Chair would ask unanimous consent that the Honorable
    Shelley Berkley of Nevada, that her opening statement be put
    into the record. And we want to thank the Secretary for his
    courtesy of attending. Thank you, Mr. Gibbons, for monitoring
    the hearing on behalf of the great State of Nevada. This
    hearing is adjourned.
        [Whereupon, at 11:50 a.m., the subcommittee was adjourned.]
        [Additional material submitted for the record follows:]
        Prepared Statement of Hon. Shelley Berkley, a Representative in
                       Congress from the State of Nevada
        Mr. Chairman, Members of the Subcommittee: Thank you for allowing
    me to submit this statement.
        The time has come to declare H.R. 45 dead and move on in the search
    for an effective, practical, cost-effective and safe method of dealing
    with nuclear waste. I find it incredible that the House is still
    discussing a bill that would create the risk of shipping high level
    waste through 43 states and hundreds of cities and towns. I find it
    incredible that we are still considering spending billions of dollars
    on a temporary nuclear dump in Nevada that is not needed and would not
    be safe. And I find it incredible that this discussion continues even
    though the Secretary of Energy opposes a temporary dump and is
    proposing a promising solution to the temporary storage issue.
        H.R. 45 is a measure that abandons well-established radiation
    safety standards, and allows radioactive contamination up to 25 times
    the level that is currently allowed at nuclear facilities in this
    country and around the world. H.R. 45 is condemned as a dangerous
    proposal by experts in the fields of transportation, public health, and
    the environment.
        We should be devoting our time and energy to pursuing Secretary
    Richardson's proposal to maintain spent nuclear fuel in safe storage at
    reactor sites. This proposal enables the Dept. of Energy to fulfill its
    mission without creating the terrible risks and expenses associated
    with H.R. 45.
        This proposal would enable the federal government and the
    scientific community to continue a fair and objective search for a
    safe, effective and permanent method of disposing of high level nuclear
    waste. Given its obvious merits, I strongly urge that as a matter of
    national interest we immediately begin reviewing Secretary Richardson's
    proposal as an alternative to the ill-advised approach of H.R. 45.
        Thank you.
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           Response of David Joos to Questions of Congressman Barton
        In my testimony, I observed that current calculations suggest that
    DOE's liability for its failure to perform its legal responsibilities
    could total $56 billion for spent fuel related costs. I did not suggest
    that the electric utilities customers' payment to the Nuclear Waste
    Fund should be used to pay additional utility costs and other damages
    occasioned by DOE's nonperformance. Such a step would further penalize
    utility customers for DOE's misdeeds.
        The $56 billion of potential liability for damages would be the
    result of a complete failure by the federal government to meet its
    obligation to accept spent nuclear fuel. Others have variously
    estimated this liability in the range of $40 billion to $80 billion.
    Because such a failure is due to the failure of DOE to perform its
    duties, the responsibility to pay these damages should lie with the
    federal government, and not the ratepayers. It is the government that
    failed to perform and it should bear the costs of its nonperformance,
    not utility customers.
        Question. Are current nuclear plant payments into the fund
    sufficient to cover this sum?
        Answer. No. The fund would not be sufficient to cover these
    damages, nor was that its purpose. It was intended to fund the
    activities specified in sections 302(d), 142(b), and 406(a) of the
    Nuclear Waste Policy Act, not to serve as a governmental hold-harmless
    mechanism. It would not be appropriate for ratepayers to pay these
    costs.
        Question. In light of this potential liability, do you think the
    payments should be increased to ensure the viability of the waste
    disposal program?
        Answer. No. Payments should not be increased because damages should
    not come from the Nuclear Waste Fund. The responsible party is the
    federal government and the federal government should bear this loss.
    The fund is adequate to pay the entire life-cycle costs for the purpose
    for which it was intended. It was never intended to be used to provide
    liability coverage for the government's failure to perform.
        Question. If payments are increased to pay for damages and for
    interim storage, could utilities then sue for additional breach of
    contract?
        Answer. I do not believe it would be appropriate to increase the
    fee charged to utility customers for the ratepayers to have to sustain
    these damages. I believe the industry would challenge any use of the
    Nuclear Waste Fund and any increases the Nuclear Waste Fee imposed to
    fund the government's failure to perform.
                                     ______

                                   Department of Energy
                                           Washington, DC 20585
                                                          April 9, 1999
    The Honorable Joe Barton
    Chairman, Subcommittee on Energy and Power
    Committee on Commerce
    U.S. House of Representatives
    Washington, DC 20515
        Dear Mr. Chairman: On February 10, 1999, Lake H. Barrett, Acting
    Director, Office of Civilian Radioactive Waste Management, testified
    regarding H.R. 45, the Nuclear Waste Policy Act of 1999.
        Enclosed are the answers to questions submitted on behalf of you
    and Representatives Dingell and Markey to complete the hearing record.
        If we can be of further assistance, please have your staff contact
    our Congressional Hearing Coordinator, Barbara Barnes, on (202) 586-
    6341.
                Sincerely,
                                                 John C. Angell
       Assistant Secretary, Congressional and Intergovernmental Affairs
    Enclosure
                         QUESTION FROM CHAIRMAN BARTON
        Q1. Does the Administration have any legislative proposals, as
    alternatives to H.R. 45, that would:
        a. Accelerate acceptance of spent fuel prior to 2010;
        b. Strengthen the repository program by assuring adequate funding;
    and
        c. Protect consumers by halting the diversion of consumer fees?
        A1. The Administration has no alternative legislative proposals.
    However, on February 25, 1998, the Secretary testified that he is
    considering ideas put forth as alternatives to centralized interim
    storage. One such alternative could be to have the Department take
    title to spent nuclear fuel and assume the management responsibility
    for the fuel on-site at the reactor. This could continue until a
    permanent geologic repository is ready. The Secretary, as he has said
    before, wants to open a dialogue to address the Department's obligation
    to dispose of spent nuclear fuel.
        Q2. What intensity of earthquake is the repository designed to
    withstand? How do the recent earthquakes in the vicinity compare to
    this design standard? Does this recent seismic activity pose any
    technical reason to invalidate the Yucca Mountain site for the
    permanent repository?
        A2. The Department of Energy is designing a repository to withstand
    stresses from earthquakes in accordance with building requirements for
    modern mines, tunnels, and power plants that are located in seismically
    active areas. Our design basis for repository structures, systems and
    components that are important to safety is ground motion of 0.67 g.
    This is equivalent to an earthquake that registers magnitude 6.5 on the
    Richter scale at a distance of less than 5km.
        On January 25 and 27, two earthquakes of magnitudes 4.3 and 4.7 on
    the Richter scale occurred on the eastern edge of the Nevada Test Site
    near Frenchman Flat, approximately 25 miles from the Exploratory
    Studies Facility at Yucca Mountain. The ground motions from these
    earthquakes were less than 0.01 g.
        The recent seismic activity at Frenchman Flat is consistent with
    our understanding of the tectonic framework and seismic hazard at Yucca
    Mountain. We base our seismic hazard analysis on an extensive database
    of information regarding earthquakes and active faults near Yucca
    Mountain. We are assuming for purposes of our planning that
    earthquakes, such as those at Frenchman Flat, will occur again.
        We believe that these earthquakes do not pose any technical reason
    to invalidate the Yucca Mountain site for a permanent repository.
        Q3. There is recent evidence suggesting relatively rapid
    groundwater transport at the repository site and elsewhere at the
    Nevada Test Site. Please summarize this evidence. Does this information
    pose any technical reason to invalidate Yucca Mountain as the site for
    the permanent repository?
        A3. No. The information available does not warrant invalidating the
    site. The recent evidence suggesting rapid groundwater transport is
    based on presence of chlorine-36, an isotope produced by atmospheric
    nuclear weapons testing. In April 1996, the Department reported that
    trace quantities of chlorine-36 were found at the proposed repository
    depth. This suggests that water from the surface transported the
    isotope to the repository level in approximately 50 years.
        The mere presence of chlorine-36 at the repository level does not
    pose a technical reason to invalidate Yucca Mountain as a site for the
    permanent repository. Those who propose invalidating this site, refer
    to a provision in the Department's Siting Guidelines which state ``a
    site shall be disqualified if the pre-waste-emplacement groundwater
    travel time from the disturbed zone to the accessible environment is
    expected to be less than 1,000 years along any pathway of likely and
    significant radionuclide travel.''
        The total systems performance assessment presented by the viability
    assessment does not support a finding that ground water travel is less
    than 1,000 years along a pathway of ``likely and significant
    radionuclide travel.'' Geologic, geochemical, and geochronologic
    analyses provide some evidence suggesting that the age of water beneath
    the repository level is several thousand years. However, as cited by
    many who have reviewed the viability assessment, more studies on this
    issue are needed before a decision to recommend or disqualify Yucca
    Mountain can be made.
        Q4. EPA and NRC have differing opinions regarding an appropriate
    radiation standard for Yucca Mountain. From the perspective of the
    agency that is responsible for designing, building, and operating the
    repository, what is the practical effect of a 15 mrem standard versus a
    25 mrem standard. What impacts will this difference in radiation
    standard have on the cost, schedule, and long-term performance of the
    repository?
        A4. Chairman Jackson testified during the February 10, 1999,
    hearing that there are no significant differences between a 15 mrem and
    a 25 mrem standard in providing protection of the people who may live
    near the Yucca Mountain site. The differences between NRC and EPA on
    the value of the individual protection standard are not significant to
    our longterm performance analyses, and would not be expected to have
    cost or schedule implications.
        Q5. To meet its current plan of constructing and operating the
    repository by 2010, the Department will need much higher funding levels
    than it received in the past. How much will the agency need to build
    the repository by 2010? Will you need more revenues than are generated
    by the one mill fee--$660 annually--in some of the years? What is the
    source of any funding received during these periods beyond the revenue
    generated by the one mill fee? Does the department assume it will get
    complete access to the Nuclear Waste Fund in peak years, although a
    large portion of those funds has always been inaccessible? Does the
    agency assume the defense contribution to the program rises sharply?
        A5. The attached table provides staff estimates of the funding
    profile for the period FY 1999-2010 (i.e., the commencement of waste
    emplacement operations) for the repository program, based on cost
    estimates that have been provided in the recently issued Viability
    Assessment (VA) and the Total System Life Cycle Cost (TSLCC). Based on
    historical appropriation patterns, the program would need an additional
    $4-5 billion from additional funding sources above funding projections
    to meet the 2010 emplacement schedule identified in the VA and TSLCC.
    Further, the program projects that between FY 2000 and FY 2010, the
    projected commencement date for repository operations, about $6.5
    billion would be needed to complete the site characterization program
    and construct a repository. These estimates assume: (1) the
    discretionary appropriations level for the program continues at the FY
    1999 level; (2) the defense appropriations totaling approximately $1.5
    billion are paid by 2010 to fund the balance owed to the program to
    support the waste acceptance by 2015; (3) $85 million is released in FY
    2002 at the time of the site recommendation and 4) neither the Nuclear
    Waste Fund balances nor the investment income from the fund is
    available until after FY 2010.
    [GRAPHIC] [TIFF OMITTED] T5151.010

        Q6. Your testimony states the Administration is comniitted to the
    permanent repository. The question is how to accelerate acceptance of
    spent fuel in order to avoid the prospect of massive payments to
    utilities. Is it possible for the Department to pursue both interim
    storage and repository development, if funding were adequate to do
    both?
        A6. The Administration continues to oppose interim storage at Yucca
    Mountain before completing the scientific and technical work necessary
    to make a decision on whether the site is suitable as a permanent
    geologic repository. If legislation were enacted authorizing interim
    storage and given enough funding, the Department would then be able to
    pursue development of both interim storage and geologic disposal.
        Q7. In the past, the Administration has opposed interim storage
    siting before completion of the viability assessment. That was the
    position the Administration took before Senate consideration of nuclear
    waste legislation in 1996. Is that still the Administration's position
    now that the viability assessment is complete?
        A7. The Administration's position on the interim storage
    legislation has not changed. There is nothing in the viability
    assessment that would change the Administration's position that the
    President would veto any bill similar to the bills passed in the 105th
    Congress. The Administration believes that the Federal Government's
    long-standing commitment to permanent geologic disposal should remain
    the basic goal of high-level radioactive waste management policy. The
    Administration believes that interim storage placed in Nevada, as
    proposed in H.R. 45, would undermine our progress toward permanent
    geologic disposal of our Nation's nuclear waste and weakens the
    credibility of regulatory and institutional activities required to
    maintain the public's confidence in any siting decision.
        Q8. Is there any way DOE could accelerate acceptance under its
    current legal authority? Can DOE accept spent fuel earlier than 2010
    under current law, or is legislation needed to begin acceptance
    earlier?
        A8. The 2010 date to receive and emplace spent nuclear fuel at a
    geologic repository has been the Department's schedule since 1989.
        Any acceleration to accept waste would require significant
    increases in resources dedicated to the program beyond the budgetary
    caps that have been historically provided to the program and a
    modification to NRC regulations.
        The Administration's Fiscal Year 2000 budget request supports our
    schedule to complete a draft repository environmental impact statement
    in July 1999; a final repository environmental impact statement in
    2000; and a decision on Yucca Mountain site suitability in 2001. If the
    site is suitable, providing the necessary funding after a suitability
    decision would maintain our schedule to submit the license application
    for repository construction to the Nuclear Regulatory Commission in
    2002 and, if licensed, begin emplacement of waste in the repository in
    2010.
                     QUESTIONS FROM REPRESENTATIVE DINGELL
        Q1. On November 30, 1998, the Department issued a ``Response to
    Query'' on the Supreme Court's decision not to review cases on DOE's
    contractual duties to the utilities. It indicated that, as a result of
    this ruling ``The Department is concerned about the potential adverse
    impact of the ruling on the program's ability to develop a permanent
    solution for the management of the Nation's radioactive waste.''
        (a) Please describe the impact this ruling might have on the
    repository program. Does this refer to the potential drain on the
    Nuclear Waste Fund if it is determined that this source can be used to
    pay any damages awarded by the U.S. Court of Federal Claims in breach
    of contract suits brought by nuclear utilities?
        (b) Has DOE considered the financial impact of having to adjust
    equitably the fees paid into the Nuclear Waste Fund, as referenced in
    Article IX(B) of the Standard Contract (10 CFR 961.1)? If so, what is
    the impact? How would the Department administer an equitable adjustment
    to the fee under the user fee mechanism envisioned in H.R. 45? Would
    some utilities pay a significantly higher fee than others if the
    Department was forced to equitably adjust the user fee for some
    utilities?
        (c) The Department testified that an outside auditor has already
    stated that the Department's potential liability ranges from $500
    million up to $45 billion. How would the best, worst, and middle case
    damage scenario affect funding for the program as currently authorized?
    What would be the impact for each scenario on fee adequacy under the
    current program?
        A1 (a). In its ``Response to Query'' on the Supreme Court's denial
    of the government's request for a review of the Court of Appeals
    decision in Northern States Power, the Department expressed its concern
    about the potential adverse impact of the ruling on the high-level
    waste program, based upon the uncertainty as to the source of the funds
    that would be utilized to pay any damages in breach of contract suits
    brought by contract holders. As was stated by Deputy Assistant Attorney
    General Schiller of the Department of Justice at the February 10, 1999,
    hearings before this Subcommittee, the Office of Legal Counsel is
    currently reviewing whether the Judgment Fund could be utilized to fund
    these judgments against the government, or whether such claims must be
    paid from the Nuclear Waste Fund. If it is determined that the Nuclear
    Waste Fund is to be the source of funds to pay damages awarded by the
    U.S. Court of Federal Claims, the Department is concerned not only
    about the impact that such expenditures could have on the adequacy of
    the current 1.0 mil per kilowatt hour fee, but over its ability to
    secure funding to both pay damages and obtain the funding required to
    implement the current program plan for development of a high-level
    radioactive waste repository within current Departmental budget
    limitations.
        A1 (b) The Department has received one request for an equitable
    adjustment from a contract holder as a result of its delay in beginning
    waste acceptance. Neither that proposed request nor any contract holder
    currently in the U.S. Court of Federal Claims has yet provided the
    government with the sufficient factual support for its monetary
    damages. As a result, the Department is unable to assess the impact
    that such request or claims would have on the fees paid into the
    Nuclear Waste Fund. If the Department were to provide contract holders
    equitable adjustment to their fees in the form of credits to ongoing
    Nuclear Waste Fund payments, it would review the impact that such
    adjustments may have on the adequacy of the 1 mil per kilowatt hour
    fee, taking into account the reduction in ongoing revenues. Under the
    user fee mechanism envisioned in H.R. 45, if an adjustment to the fee
    were required in order to assure full cost recovery, adjustments would
    be universal and apply to all contract holders. Some contract holders
    no longer generate nuclear electricity or some contract holders might
    receive considerable equitable adjustments to their contract. In these
    situations, some contract holders may pay less for disposal of their
    spent fuel, while other contract holders who continue to generate
    nuclear electricity or who do not receive an equitable adjustment under
    the contract may pay more.
        A1 (c). As stated in our response to 1(b), no contract holder
    currently in the U. S. Court of Federal Claims has provided the
    government with their basis for monetary damages. An evalution of the
    financial impact on the program from the ongoing litigation is
    described in the attached pages from Department's auditor's Financial
    Statement which was issued September 30, 1998.
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        Q2. In testimony before the Energy and Power Subcommittee on
    February 10, 1999, Mr. Lake Barrett testified on behalf of the
    Department that enactment of H.R. 45 ``would undermine our ability to
    open the repository as scheduled in 2010 by shifting budget priorities
    and work effort to an interim storage facility'' and that ``the
    proposed bill's funding provisions do not provide sufficient funding
    resources to support the simultaneous construction and operation of an
    interim storage facility and the repository program . . .'' Mr. Barrett
    further testified ``the bill could result in a funding gap of
    substantially over one billion dollars.''
        (a) Please describe how the requirements of H.R. 45 would affect
    the funding for the repository program. What is the average fee DOE
    needs to collect on a kilowatt-hour of nuclear energy in order to
    ensure that the program in H.R. 45 is paid for solely by the generators
    and owners of nuclear waste? Please include any data necessary to
    explain your conclusions, including information on the billion dollar
    funding gap.
        (b) Please explain how H.R. 45 might delay DOE's projected
    repository opening date of 2010: (1) How long might such a delay be?
    (2) How would H. R. 45 affect the interests of various utilities in the
    ``queue''?
        A2 (a). The attached table provides staff estimates of the funding
    profile for H.R. 45, based on cost estimates that have been provided in
    the recently issued Viability Assessment and the Total System Life
    Cycle Cost, and currently available cost information regarding the
    interim storage provisions in H.R. 45. Based on historical
    appropriation patterns, H.R. 45 does not provide sufficient funding
    resources to support the simultaneous construction and operation of an
    interim storage facility and the repository program. The estimates
    assume (1) the discretionary appropriations level for the program
    continues at the FY 1999 level; (2) collections of the defense share of
    the costs are provided by 2003 totaling the FY 2003 waste acceptance
    schedule in H.R. 45; (3) $85 million's released from the FY 1996
    appropriations; (4) the one-time fee payments are directed into the
    Nuclear Waste Fund for the purposes of meeting the overall Federal
    budgetary requirements; and (5) neither the Nuclear Waste Fund balances
    nor the investment income from the fund is available until after FY
    2010. If both the interim storage facility and repository schedules
    envisioned by H.R. 45 were supported, enactment of the bill in its
    current form could result in a funding gap of $1-2 billion. DOE
    estimates it would need to collect an average fee of approximately 1.3
    mils over theperiodfrom FY2000-FY2010 in order to ensure the programs
    in H.R.45 are paid for solely by generators and owners.
        A2 (b)(1). Preliminary estimates of funding required to implement
    H.R. 45 range up to as much as $11.6 billion in year of expenditure
    dollars, year 2000 through the year 2010. Cost estimates to complete
    the work necessary to initiate activities to operate a repository under
    the current program are on the order of $10.1 billion, of which
    approximately $6.5 billion would be needed to complete the
    characterization, design and construction activities at the repository
    through the year 2010. If H.R. 45 were to be implemented without the
    necessary funding above that required for the repository only,
    significant delays to the repository program would be incurred. The
    Program has not evaluated this scenario directly however, reducing the
    funds required to characterize, design, and construct the repository by
    the amounts required to implement interim storage would require a
    completely new approach and schedule for repository operation.
        A2 (b)(2). Section 508 of H.R. 45 establishes acceptance schedules
    and priorities for the Department's acceptance of spent fuel and high-
    level radioactive waste and provides that, once DOE has achieved the
    current contract rate for spent nuclear fuel (SNF) from civilian
    reactors, the Secretary shall accept SNF from foreign research reactors
    and SNF from naval reactors and high-level radioactive waste from
    atomic defense activities in an amount that is at least 25 percent of
    the difference between the contract rate and the rates established
    elsewhere in H.R. 45, or 5 percent of the total amount of SNF and high-
    level radioactive waste actually accepted, whichever is higher. Under
    this provision, the Secretary may not grant priority acceptance to SNF
    from permanently shutdown reactors unless the quantity of non-
    commercial SNF and high-level waste accepted is less than the
    acceptance rate prescribed in H.R. 45. Our analysis of this provision
    is that it would reduce the Department's flexibility under current law
    to address civilian nuclear power reactors which have permanently
    ceased operation once we begin spent fuel acceptance.
    [GRAPHIC] [TIFF OMITTED] T5151.017

    Storage Alternatives Pending Repository Completion
        Q3. Under any current law, and in the absence of a repository, does
    DOE have authority to store nuclear waste at existing Federal
    facilities or any other public or private sites?
        A3. The Nuclear Waste Policy Act prohibits the DOE from siting an
    interim storage facility until the Secretary has recommended a site for
    a repository to the President. Furthermore, section 302(d) bars DOE
    from using Nuclear Waste Fund money to construct or expand any facility
    unless such construction or expansion is expressly authorized by
    statute. Although DOE has authority under the Atomic Energy Act to
    support research and development in nuclear power, manage the Nation's
    nuclear defense programs, and further the nuclear weapons
    nonproliferation policy of the United States, these authorities do not
    provide DOE authority to establish a Centralized interim storage
    facility for conunercial spent ftiel. The elaborate scheme in the NWPA
    provides for storage and disposal of this material, and the particular
    limitations of that specific statute must be followed.
        Q4. As used in the context of the Nuclear Waste Policy Act, the
    Standard Contract, and H.R. 45, what is DOE's legal interpretation of
    the terms ``accept title'' and ``take title''? Under existing law, is
    DOE able to take title to waste currently at reactor sites?
        A4. Under 302(a)(1) of the Nuclear Waste Policy Act, DOE is
    authorized to enter into contracts for the acceptance of title,
    subsequent transportation, and disposal of utility spent nuclear fuel
    of domestic origin. Section 302(a)(5)(B) requires that such contracts
    provide for DOE to take title to such spent fuel as expeditiously as
    practicable following commencement of operation of a repository.
    Section 123 of the Act further provides that delivery, and acceptance
    by DOE, of spent nuclear fuel for a repository constructed under the
    Act, shall constitute a transfer to DOE of title to such spent fuel.
    Therefore, DOE has clear authority to take title to utility spent fuel
    at reactor sites for purposes of disposing of the fuel in a repository.
        Pursuant to these authorities, DOE has entered into the Standard
    Contract for Disposal of Spent Nuclear Fuel and/or High-Level
    Radioactive Waste with all U.S. nuclear utilities. In these Standard
    Contracts, DOE agreed to ``accept'' or ``take'' title to the utility
    spent fuel. The words ``accept'' and ``take'' are generally used
    synonymously, consistent with the foregoing statutory provisions.
        Although there is no explicit prohibition on DOE taking title to
    utility spent fuel for purposes of onsite storage, it is not clear that
    Congress intended such activities under the NWPA. The findings and
    purposes provisions of the Nuclear Waste Policy Act provide that the
    generators and owners of spent fuel have the primary responsibility to
    provide for and the responsibility to pay the costs of interim storage
    until such spent fuel is accepted by DOE in accordance with the Act. In
    addition, section 302(d) limits the use of the Nuclear Waste Fund to
    certain specified expenditures and onsite storage is not one of the
    enumerated uses. In addition, the Fund may not be used for the
    construction or expansion of any facility unless such construction or
    expansion is expressly authorized by the Act or subsequent legislation.
        On February 25, 1999, before the Senate Energy and Natural
    Resourees Committee, Secretary Richardson announced a proposal to
    further examine the possibility of the Department taking title to spent
    fuel onsite and assume management responsibility until such time as it
    can be placed in a permanent repository. We plan to continue to examine
    this concept and determine what legislation may be necessary to
    implement it.
        Q5. Has the Department considered the advisability of legislation
    authorizing DOE to take title to utility waste and store it on-site at
    reactors until the material can be disposed of at the permanent
    repository?
        A5. On February 25, the Secretary stated that he is looking at
    alternatives to interim storage. One alternative is taking title to
    spent nuclear fuel and assuming management responsibilities for its
    storage on-site at reactors until such time as it can be placed in a
    permanent geologic repository.
        Q6. Under the terms of the standard contract (Article IV(B)(2)):
    ``DOE shall arrange for, and provide, a cask(s) and all necessary
    transportation of the SNF and/or HLW from the Purchaser's site to the
    DOE facility. Such cask(s) shall be furnished sufficiently in advance
    to accommodate scheduled deliveries. Such casks shall be suitable for
    use at the Purchaser's site, meet applicable regulatory requirements,
    and be accompanied by pertinent information ...''
        DOE has yet to provide such casks to utilities, despite the fact
    that the date has passed for DOE to accept waste. Utilities have been
    forced to make financial decisions regarding casks for storage.
        (a) What plans does the Department have for fulfilling its
    contractual obligations in this area?
        (b) NRC is currently reviewing 6 dual purpose casks for potential
    licensing
        (1) Will DOE provide casks or will DOE accept any NRC licensed cask
    for transportation?
        (2) If DOE accepts any NRC-licensed cask, does DOE intend to
    reimburse utilities for those casks?
        (3) Is DOE working with NRC to ensure that dual purpose casks will
    meet DOE's needs? If DOE insists on using its own casks, will DOE
    accept responsibility for transferring the waste to its own cask.
        (c) Please describe the Department's efforts to date to work with
    utilities to resolve these matters.
        A6(a). In accordance with the provisions of Section 137(a) (2) of
    the Nuclear Waste Policy Act, as amended, the Department intends to
    rely on the private sector in fulfilling its contractual obligation to
    provide casks for the transportation of spent nuclear fuel from
    civilian nuclear reactors. The Department has developed a draft Request
    for Proposal (RFP) for Waste Acceptance and Transportation Services in
    preparation for soliciting proposals from the private sector. In the
    draft RFP, the Department has required that its contractors provide
    transportation casks suitable for use at the various civilian power
    reactors facilities.
        A6(b)(1). The Nuclear Regulatory Commission (NRC) is currently
    reviewing 6 dual-purpose casks for potential licensing. A number of
    utilities plan to use these casks to store spent nuclear fuel at their
    facilities. The Department has notified contract holders that it plans
    to accept spent nuclear fuel in dual-purpose canisters that are
    licensed by the NRC.
        A6(b)(2). The Department has previously informed the contract
    holders that, if the Department accepts spent nuclear fbel in a dual
    purpose cask provided by the utility, the Department will share with
    the contract holder any savings it may realize as a result of the use
    of the utility provided dual-purpose cask.
        A6(b)(3). The Department is taking steps to ensure that the design
    of the Federal repository receiving facility is compatible with all
    dual-purpose casks currently under NRC review. The Department
    recognizes that standardization of design, while an admirable goal,
    must be tempered by the reality that there are already over 70 utility
    sites storing spent nuclear fuel, each with its own design
    considerations. The Department is in the process of developing
    performance based interface criteria that we plan to share with the
    nuclear industry. We believe the criteria a Federal facility. With
    respect to DOE transferring waste from utility supplied casks to DOE
    supplied casks, the Department intends to accept spent fuel from
    utilities in any dual-purpose cask that is approved for use by the NRC
    at the time of acceptance.
        A6(c). The Department has participated in discussions with its
    contract holders for a number of years to resolve the issues related to
    the use of NRC approved dualpurpose casks by the contract holders and
    remains willing to work with the contract holders to resolve these
    issues.
                      QUESTION FROM REPRESENTATIVE MARKEY
        Q1. You state in your testimony that H.R 45 does ``not provide
    sufficient funding resources to support the simultaneous construction
    and operation of an interim storage facility and the repository
    program.'' Please describe the basis for you conclusion that enactment
    of the bill could result in a funding gap of substantially over one
    billion dollars. If this bill is passed, would DOE recommend increase
    of the utility Nuclear Waste Fund fees in order to pay for both storage
    and disposal?
        A1. H.R. 45 will undermine our ability to open a repository as
    scheduled in 2010 by shifting budget priorities and work effort to an
    interim storage facility. Based on historical appropriations patterns,
    the proposed bill's funding provisions do not provide sufficient
    resources to simultaneously support both the construction and operation
    of an interim storage facility and the repository program.
        Our preliminary analysis of the funding provisions in H.R. 45
    indicates that it does not provide access to the Nuclear Waste Fund
    balance. Even without adding an interim storage facility, budgetary
    constraints could jeopardize our goal for an operational repository in
    2010.
                   QUESTION FROM THE HOUSE COMMERCE COMMITTEE
    Nuclear Waste
        Q1.b. Could utilities sue for breach of contract if fees are raised
    to pay for interim storage?
        A1.b. In accordance with section 302 of the Nuclear Waste Policy
    Act, the standard disposal contracts currently provide that DOE will
    adjust the fee, if necessary, in order to assure full cost recovery by
    the Government. For that reason, if DOE had to raise the fee to cover
    the cost of interim storage under H.R.45, the increase in fee would not
    appear to constitute a breach by DOE of the standard disposal
    contracts.
        Q2. You suggest that H.R.45's ``waste acceptance deadline of June
    2003 is very optimistic.'' If DOE cannot meet this artificial deadline,
    will the nuclear utilities have yet another cause of action over which
    to sue the Department? If so, what would be the impact of such
    litigation on DOE's ability to keep the permanent repository program on
    track?
        A2. Under section 101 of H.R.45, the Secretary would be required to
    accept spent nuclear fuel for storage at an interim storage facility
    beginning not later than June 30, 2003. Under section 401 of H.R.45,
    DOE would be required to amend its standard disposal contracts as
    necessary to implement this and other provisions of H.R.45. Based on
    the D.C. Circuit and Court of Federal Claims rulings to date
    interpreting the NWPA and the standard disposal contract fuel
    acceptance obligations as they exist today, if these contracts were
    amended to impose on DOE an obligation to perform by June 30, 2003, it
    is possible that a court would find that the utilities were entitled to
    either an award of damages or relief under the terms of the contract
    were DOE to breach the obligation. Substantial damage awards, if funded
    through the Nuclear Waste Fund, are likely to have a significant
    adverse affect on the Department's ability to conduct the activities
    necessary to keep the permanent repository program on track.
                      QUESTION FROM REPRESENTATIVE MARKEY
        Q3. You also say that beginning site preparation for an interim
    storage facility before Yucca Mountain is suitable ``would undermine
    public confidence that a repository evaluation will be objective and
    technically sound.'' Why is that?
        A3. During my testimony before the Committee, I was referring to
    the specific provisions of H.R. 45 that designates the interim storage
    facility site at Area 25 within the Nevada Test Site near Yucca
    Mountain. Naming a site before completing our evaluation of Yucca
    Mountain would undermine the progress we have made and are making. This
    is a view that also is shared by the Nuclear Waste Technical Review
    Board, as expressed by Dr. Cohon during this hearing as well as others
    within and outside the Administration.
        An unbiased scientific evaluation should be the basis for any
    decision to site a permanent geologic repository. We are working toward
    that goal in 2001 when a decision to recommend the site is expected to
    be made. Designating the interim storage site in Nevada before
    completing the scientific work could lead to the perception that the
    decision has already been made to site the permanent repository there
    as well. This might suggest that not all the necessary scientific and
    engineering work has been completed prior to making such an important
    decision on the permanent management of our Nation's spent nuclear fuel
    and high-level radioactive waste. Therefore, designating Area 25 within
    the Nevada Test Site near Yucca Mountain as the interim storage site
    would bring into question the public's confidence in the framework for
    siting a geologic repository. The Environmental Protection Agency spoke
    to this issue in addressing previous legislation similar to H.R. 45
    that designated an interim storage site in Nevada.
        Because of our commitment to permanent geologic disposal, rather
    than a short-term solution, Secretary Richardson has stated that he
    opposes H.R. 45 and would recommend to the President that he veto the
    legislation if Congress passes it in its current form. Furthermore, he
    has stated that he would consider alternatives to legislation siting an
    interim storage facility.
        Q4. The Viability Assessment DOE recently issued predicts a maximum
    dose following closure of the repository of 300 millirem. NAS
    recommendations, on which the standards will be based, suggest a
    standard of roughly 2-30 millirem that extends to the peak dose. Why is
    this not a ``showstopper?''
        A4. The Viability Assessment represents the status of our work as
    of 1998. The National Academy of Sciences' recommendations are input to
    the process of determining a regulatory standard for the proposed
    repository at Yucci Mountain. Pursuant to the Energy Policy Act of
    1992, the Environmental Protection Agency (EPA) is in the process of
    promulgating a radiation protection standard for Yucca Mountain.
    Currently, there is no such standard. For these reasons and until a
    regulation is finalized, we have no standards to measure against and,
    therefore, it would be inappropriate to consider preliminary
    calculations as ``showstoppers.''
        However, while there is not yet a final standard, EPA has
    historically used a 10,000 year period as a time of compliance.
    Additionally, the Nuclear Regulatory Commission has recently proposed a
    10,000 year regulatory period for Yucca Mountain. During that period,
    the Viability Assessment indicates that the mean peak annual dose rate
    to an average individual in the future population would be about 0. I
    milliremi/year. The 300 millirem peak dose referred to in the Viability
    Assessment was predicted to occur 300,000 years from now.
                   QUESTION FROM THE HOUSE COMMERCE COMMITTEE
    Nuclear Waste
        Q5. Are you aware of any current state or local laws or regulations
    that could be ``obstacles'' to carrying out the Atomic Energy Act or
    the proposed Nuclear Waste Policy Act? If so, what are they?
        A5. I am not aware of any specific state or local law or regulation
    that would be an ``obstacle'' to carrying out the Atomic Energy Act or
    the proposed Nuclear Waste Policy Act. However, there are many state
    and local environmental, land-use, and other requirements that are
    applicable to DOE and its contractors in carrying out its functions
    under the Atomic Energy Act and that may be imposed upon DOE in
    carrying out its functions under the proposed legislation if it were
    enacted. The determination of whether or not a particular requirement
    would be an obstacle would have to be made on the basis of an
    examination of the particular circumstances to which the requirement
    would be applied in light of existing case law since neither the Atomic
    Energy Act nor the proposed changes in the Nuclear Waste Policy Act
    contain a definition of obstacle.
                      QUESTION FROM REPRESENTATIVE MARKEY
        Q6. The Viability Assessment summarized scientific studies of
    possible exposures due to deep geologic disposal of nuclear waste at
    Yucca Mountain. Are you aware of any studies of the potential health
    impacts if nuclear waste were left in an above-ground storage facility
    in Nevada for thousands to hundreds of thousands of years?
        A6. We know of no studies of potential health effects from a long-
    term above-ground storage scenario in Nevada (thousands to hundreds of
    thousands of years) that have ever been performed by the Office of
    Civilian Radioactive Waste Management or others.
                                     ______

    Responses of the Department of Justice to Follow-Up Question from Hon.
                        John D. Dingell, Ranking Member
        Question: In its testimony before the Energy and Power
    Subcommittee's February 10, 1999 hearing, the Department of Justice
    stated that its Office of Legal Counsel is preparing an opinion as to
    whether payments of judgments in cases relating to the Department of
    Energy's obligations under the Nuclear Waste Policy Act of 1982 should
    be disbursed from the Nuclear Waste Fund or the Judgment Fund.
        (a) When does the Department expect this memorandum to be
    completed?
        (b) Please provide a copy of the memorandum to the Subcommittee
    upon its completion.
        Response: At the present time, the Office of Legal Counsel is
    awaiting input from the Department of Energy regarding its views about
    appropriate and permissible uses of the Nuclear Waste Fund. After the
    Office of Legal Counsel receives the Department of Energy's views, it
    will develop its legal opinion regarding this issue. Although no
    specific date has yet been established for the completion of these
    tasks, the Department of Justice will provide a copy of that opinion to
    the Department of Energy after it is completed. Because the opinion is
    being prepared for the Department of Energy, and because we view that
    opinion to be a protected document subject to disclosure only by or
    with the permission of the requesting agency, the Department of Energy
    is the appropriate agency from which to seek a copy of the opinion,
    once it is issued.
                                     ______

      Responses of Stuart E. Schiffer, Deputy Assistant Attorney General,
    Commercial Litigation Branch, Civil Division, Department of Justice, to
                  Follow-Up Questions from Chairman Joe Barton
        Question 1: Some estimate the potential liability of the Federal
    government from failure of the nuclear waste program is $40 to $80
    billion. Has the Justice Department estimated this potential liability?
    If so, what is it?
        Response: The Department of Justice has not independently estimated
    the potential liability arising out of potential claims from the
    Department of Energy's inability to begin acceptance of spent nuclear
    fuel from commercial utilities by January 31, 1998. However, to date,
    ten utilities have filed complaints in the United States Court of
    Federal Claims seeking damages totalling approximately $8.5 billion for
    alleged breaches of the standard disposal contracts and takings under
    the fifth amendment of the United States Constitution. The Department
    of Energy is aware of the total number of entities holding standard
    contracts, and we presume that the majority, if not all, of them will
    seek relief either through the United States Court of Federal Claims or
    through the administrative process established in the standard
    contract's Disputes clause.
        Question 2: Section 302(d) of the Nuclear Waste Policy Act of 1982
    specifies the uses of the Nuclear Waste Fund. Would payments to
    utilities from the Fund be permitted under the Act?
        Response: We are not presently aware of any prior Federal court
    decision that has addressed this issue. Further, the Department of
    Justice has not yet taken any position regarding this particular
    matter. We are presently awaiting an opinion from the Office of Legal
    Counsel regarding whether the Nuclear Waste Fund, as opposed to the
    Judgment Fund or some other source of funding, would be the appropriate
    source for payment of any judgment rendered by the United States Court
    of Federal Claims for a breach of the standard contract. It is possible
    that the Office of Legal Counsel's opinion could address the matter of
    permissible uses of the Nuclear Waste Fund, to the extent that it
    affects the use of the Fund for payment of Federal court judgments.
        Question 3: If courts order the Federal government to make payments
    to utilities as a result of DOE'S failure to meet its legal obligation
    to begin acceptance on January 31, 1998, how would those payments be
    made? Would the money come out of the Judgment Fund? Would it come out
    of the Nuclear Waste Fund? Please provide a copy of any opinions from
    the Office of Legal Counsel on this issue.
        Response: We are presently awaiting an opinion from the Office of
    Legal Counsel regarding this matter.
        Question 4: Would the potential liability faced by the Federal
    government due to DOE's failure to begin acceptance of nuclear waste on
    January 31, 1998 be reduced if acceptance is accelerated from 2010 to
    2003?
        Response: The subcommittee's question does not lend itself to a
    definitive answer. To respond fully to this question, it would be
    necessary to focus upon specific statutory provisions. The United
    States Court of Appeals for the District of Columbia Circuit has held,
    in Indiana Michigan Power Co. v. United States, 88 F.3d 1272 (D.C. Cir.
    1996), that the Nuclear Waste Policy Act creates an obligation in the
    Department of Energy, reciprocal to the utilities, obligation to pay,
    to start disposing of spent nuclear fuel no later than January 31,
    1998. However, neither the NWPA nor the standard disposal contracts
    themselves identify a date certain by which the Department of Energy
    must complete its disposal of the spent nuclear fuel from any
    particular utility. The issue of any damages that might be awarded for
    any delay in the Department's ability to begin acceptance in 1998
    should be determined by reference to the Act and the terms of the
    standard contracts.
        Question 5: In the Department's view, are the Standard Contracts
    entered into between the utilities and DOE contracts, or are they
    rules?
        Response: Litigation involving the standard contracts is still
    pending in the Federal courts. As a result, the Department's pending
    matter policy applies to any discussion of the matters at issue in
    those cases. However, we note that the United States Court of Appeals
    for the District of Columbia Circuit ruled in its May 5, 1998 order in
    Northern States Power Co. v. United States, 1128 F.3d 754 (D.C. Cir.
    1997), that performance of an obligation to begin disposal of spent
    fuel is enforceable only through contractual remedies arising under the
    standard contract.
        Further, with regard to claims for money damages arising out of the
    Department of Energy's inability to begin acceptance of spent nuclear
    fuel by January 31, 1998, the United States Court of Federal Claims, in
    Yankee Atomic Electric Co. v. United States, 42 Fed. Cl. 223 (1998),
    viewed the standard contract as a contract pursuant to which, if
    breached, the court could award monetary relief.
                                     ______

                                   Department of Energy
                                           Washington, DC 20585
                                                          June 10, 1999
    The Honorable Joe Barton
    Chairman, Subcommittee on Energy and Power
    Committee on Commerce
    U.S. House of Representatives
    Washington, DC 20515
        Dear Mr. Chairman: On March 12, 1999, Bill Richardson, Secretary of
    Energy, testified regarding H.R. 45 and the nuclear waste issue.
        Enclosed are the answers to questions submitted on behalf of
    Representative Markey to complete the hearing record.
        If we can be of further assistance, please have your staff contact
    our Congressional Hearing Coordinator, Barbara Barnes, on (202) 586-
    6341.
                Sincerely,
                                                 John C. Angell
       Assistant Secretary, Congressional and Intergovernmental Affairs

    Enclosure
                      QUESTIONS FROM REPRESENTATIVE MARKEY
    Secretary's Proposal
        Question 1. In your testimony you note that the utilities ``are
    concerned about the physical and regulatory limitations on their
    continued storage of spent fuel at their reactor sites.'' Could you
    explain the real needs of the utilities as you understand them and
    explain whether your proposal would meet those needs? Is there any
    public health and safety reason utilities could not continue to store
    their nuclear waste on site until a repository could accept it?
        Answer 1. The spent fuel storage pools of some operating nuclear
    power plants are reaching their licensed capacity. Some utilities have
    built on-site dry storage, while others will need to in the future. In
    addition, a number of utilities are pursuing off-site dry storage in
    private fuel storage ventures. Each utility site may be different
    depending on the particular situation at those utility sites, and we
    are discussing those issues with utilities. In some cases, adding spent
    fuel dry storage requires significant licensing activity. The
    Department's proposal to take title is intended to address those costs
    that a utility incurs because of the delay in spent fuel acceptance,
    and reduce or eliminate the litigation against the Department. The
    Nuclear Regulatory Commission is responsible for protecting public
    health and safety during storage of spent fuel at reactor sites. The
    Commission determined in its Waste Confidence proceeding that spent
    fuel can be safely stored on site for at least 30 years after a plant's
    operating license has expired.
        Question 2. How would DOE taking title of the waste affect the
    environmental, health, and safety regulations that govern storage of
    spent fuel? How would it affect regulations over transportation of the
    fuel? Would DOE accept external regulation by NRC and other agencies
    over on-site storage?
        Answer 2. The Nuclear Regulatory Commission's regulations govern
    safe storage of spent fuel at reactor sites. DOE taking title to the
    spent fuel should have no effect on either the Commission's regulations
    or the Department of Transportation's safety regulations. However, we
    will be in consultation with the Commission as we explore the proposal.
    We would expect that these facilities would continue to be regulated by
    the Commission and the Department would comply with Commission
    requirements.
        Question 3. In your testimony you say that funding for your
    proposal ``could come from a mix of Nuclear Waste Fund balances,
    current payments, or appropriated funds.'' Would current Nuclear Waste
    Fund fees be sufficient to cover the costs of on-site storage in
    addition to the repository program? When you refer to ``appropriated
    funds'' do you mean money from U.S. taxpayers funding storage of
    commercial nuclear reactor waste?
        Answer 3. We are currently having discussions with those utilities
    that are interested in our proposal. These discussions should provide
    us with considerably more information on the likely costs of
    implementing the proposal and whether it could be funded from Nuclear
    Waste Fund balances, mil-fee payments, appropriated funds or a mix. At
    present, all funds to pay the costs of the radioactive waste management
    program are appropriated by Congress under discretionary accounts.
    These accounts include funds derived from the Nuclear Waste Fund, which
    pay costs for the disposal of commercial spent nuclear fuel, and the
    Defense Nuclear Waste Disposal appropriation, which pay the costs for
    the disposal of government-managed spent nuclear fuel and high-level
    radioactive waste.
        Question 4. In your testimony you also say ``We believe we could
    implement this proposal by modifying the existing contracts with
    utilities. We would still have to address a range of issues . . .''
    Could your proposal be carried out under current law, or would new
    legislation be needed?
        Answer 4. We believe we could implement this proposal through our
    utility contracts, but I have been advised by my General Counsel that
    it would be preferable to get clarifying legislation before
    implementing the proposal.
        Question 5. Would you accept participation from some utilities
    while others pursue litigation? If so, wouldn't each utility accept the
    approach in which the government would have to pay the most?
        Answer 5. The Department wants to discuss the taking title option
    with the utilities and has already begun doing so. The Department is
    seeking to develop an approach that would appeal to as many utilities
    as possible. Recognizing that there are some utilities in unique
    circumstances, the Department is ready to proceed without full
    participation. Those utilities who do not accept the take title option
    could still pursue the contractual remedies specified by the Standard
    Contract for Disposal of Spent Nuclear Fuel and/or High Level
    Radioactive Waste, 10 CFR 961.
    Litigation
        Question 6. In your testimony you estimate $2-3 billion cost to DOE
    for paying utilities to store the nuclear waste at reactor sites until
    a permanent repository can accept it. You also note that ten utilities
    are asking for $8.5 billion in damages, and that ``potential claims
    from other utilities could be many times this amount.'' What damages
    are the utilities seeking, if not costs to store the waste? Are the
    utilities' claims a reasonable assessment of the expenses they are
    incurring due to DOE's failure to take waste according to schedule?
        Answer 6. Examples of the damages sought by the utilities include:
    additional costs associated with extended on site storage of spent
    fuel, interest on these costs, deprivation of the effective use and
    value of the site, and reactor decommissioning. The Department has not
    yet seen the specific cost bases for the damages claimed by the
    utilities and, therefore, cannot make a reasonable assessment of the
    extent to which these costs are due to our delay.
    Funding
        Question 7. I understand that DOE has recently projected project
    receipts and expenses out to 2015 under current law and under H.R. 45.
    Are utility payments sufficient to fund the current program? Would
    utility payments be sufficient to fund the program under H.R. 45?
        Answer 7. The Department has developed preliminary estimates of
    program funding requirements under current law and H.R. 45 through
    2015, which have been previously provided to the Subcommittee. Although
    the fee income is adequate to fund the current program, the Department
    receives all its funds to implement this program through the annual
    appropriations process. Based on the Department's preliminary
    estimates, annual appropriations are projected to be less than
    estimated funding needs during years of peak repository construction
    and operations. This condition applies to both the current program and
    the program under H.R. 45. Future budget requests for the program have
    yet to be established and will be determined through the annual
    executive and congressional budget process. The Department would like
    to work with the Congress to assure that the repository program
    continues to be adequately funded.
        Question 8. The projected costs of the program have changed
    substantially over the years. If you concluded that fees had become
    inadequate to pay for the current program, would you have authority to
    raise the fees? Do the contracts with utilities allow for the fee to be
    raised without breach of contract?
        Answer 8. Under section 302(a)(4) of the Nuclear Waste Policy Act
    of 1982, as amended, if the Department concluded that fees had become
    inadequate to pay for the current program, the Department would be
    required to propose an adjustment of the fee to ensure full cost
    recovery from fees paid into the Nuclear Waste Fund. Any fee adjustment
    proposal must first be submitted to Congress before it can take effect.
    The standard disposal contracts with utilities allow for the fee to be
    raised and therefore it is not likely that a fee increase would result
    in a breach of contract.
        Question 9. If Congress enacted legislation that added interim
    storage or other mandates to the program, and that changed the
    procedures under which fees could be charged, could an increase in fees
    to pay for the program then constitute a potential breach of contract
    and therefore lead to additional litigation?
        Answer 9. To respond fully to this question, it would be necessary
    to focus on specific statutory provisions. In general, if new
    legislation required the standard disposal contracts to be amended to
    impose additional obligations on DOE and, in return, the utilities must
    pay an increased fee, it is unlikely that such legislation would result
    in a breach of contract if the utility is permitted but not required to
    participate in the new program, Furthermore, if a utility were required
    to participate in a new program and as a result were required to pay
    higher fee payments, it is unlikely that a breach of the current
    contract would occur if the legislation preserved the utility's
    existing contract rights. Of course, any amendments to the standard
    contract could result in additional litigation, even though we believe
    the result of that litigation would be ultimately favorable to the
    government.
        Question 10. Are U.S. taxpayers more likely to pay for disposal of
    nuclear waste under current law or under H.R. 45? Would it be fair for
    taxpayers in states such as Nevada that do not have nuclear power
    plants to pay for the program?
        Answer 10. Under both current law and H.R. 45, nuclear utilities,
    not taxpayers, fund the commercial spent fuel disposal program. We see
    no reason for changing that fundamental policy.
        Question 11. Some members of this Subcommittee have expressed great
    concern about the use of the Nuclear Waste Fund surpluses for other
    purposes. Did DOE submit proposed legislation to Congress in 1994 and
    1995 that would have created a mandatory annual appropriation from the
    Nuclear Waste Fund for program purposes? Was this legislation
    introduced by Mr. Upton in 1995 as H.R. 1174 and referred to this
    Subcommittee? Did this Subcommittee ever act on that legislation?
        Answer 11. During Fiscal Year 1994, and again in Fiscal Year 1995,
    the Administration's budgets included legislative proposals to Congress
    that, if adopted, would have allowed for direct spending from the
    Nuclear Waste Fund. On March 7, 1995, Congressman Upton formally
    introduced legislation, H.R. 1174, that essentially concurred with the
    Administration's budget request. This legislation was referred to the
    subcommittee. However, the Congress did not act on this legislation.
    Transmutation
        Question 12. In your Senate testimony you also discussed research
    in the possibility of transmutation of nuclear waste using accelerator
    neutron beams. If this technology ever became possible, wouldn't you
    still have highly radioactive waste after such treatment?
        Answer 12. Accelerator transmutation of waste could substantially
    reduce long-lived radioactivity in civilian spent fuel. There would
    remain radioactive material even after transmutation which would still
    require management in a high-level nuclear waste repository. Thus,
    transmutation does not eliminate the need for a repository.
        Other high-level waste forms, such as vitrified high-level waste
    produced at the Department's sites at West Valley, Savannah River, and
    that planned for Hanford, could also require repository disposal.
        Question 13. Do current proposals suggest chemical processing
    before the transmutation in order to concentrate the elements to be
    transmuted? Is that the same kind of reprocessing of spent fuel that
    could be used to make nuclear weapons? Would that reprocessing leave
    highly radioactive liquid waste similar to the tank wastes in Hanford
    and Savannah River? In your testimony you suggest that ``A permanent
    repository is . . . important to our nonproliferation efforts to
    demonstrate alternatives to reprocessing.'' If transmutation involves
    reprocessing, wouldn't it damage our nonproliferation efforts?
        Answer 13. Yes, it is true that the first step in an accelerator
    transmutation of waste process is chemical processing to concentrate
    elements to be transmuted, but without isolating potential weapons
    materials. All processing methods being considered for transmutation
    produce waste streams, Aqueous chemical methods result in liquid waste
    similar to Hanford and Savannah River tank waste. This waste would have
    to be converted to a ceramic or glass solid for repository disposal.
    Current plans are to place all remaining high-level waste and surplus
    weapons materials in a permanent repository, a process which sets a
    high disposal standard and discourages unauthorized diversion.
    Therefore, the geologic disposal program is an essential part of our
    non-proliferation goals.
        Question 14. Could you give me a rough estimate of how long it
    might take before transmutation is a viable technology? Could you also
    estimate how much we would have to spend in research to make the
    concept work?
        Answer 14. The Department's current accelerator transmutation of
    waste road mapping effort, requested by Congress in the FY 1999 Energy
    and Water Development Appropriation Act, is developing answers to both
    of those questions. The road map will be available by the end of the
    fiscal year. Earlier in this decade, the National Academy of Sciences
    addressed those questions and concluded that several decades may be
    required to develop accelerator transmutation of waste as a
    demonstrated technology and that a demonstration facility itself may,
    require hundreds of millions of dollars Better estimates will be
    available from the road mapping effort in a few months.

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