[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.
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    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.
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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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