[Congressional Record Volume 141, Number 64 (Thursday, April 6, 1995)]
[Extensions of Remarks]
[Pages E796-E798]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  REPORT TO CONGRESS BY RICHARD H. STALLINGS, OFFICE OF NUCLEAR WASTE 
                               NEGOTIATOR

                                 ______


                            HON. BART GORDON

                              of tennessee

                    in the house of representatives

                        Wednesday, April 5, 1995
  Mr. GORDON. Mr. Speaker, in 1987, Congress created the Office of the 
Nuclear Waste Negotiator as part of its amendments to the Nuclear Waste 
Policy Act of 1982. The goal of this office was to negotiate an 
agreement with a host site for the storage and disposal of spent 
nuclear fuel. Congressional action in 1994 terminated authority for the 
negotiator's office. Today, I am submitting for the Record, the last 
report to Congress by Richard H. Stallings, negotiator, of the Office 
of the Nuclear Waste Negotiator.
  For the past 15 months Mr. Stallings and his staff have worked to 
help resolve our Nation's spent nuclear fuel storage and disposal 
problem. This office held numerous expert discussions which produced 
valuable scientific information on possible future uses of spent 
nuclear fuel. In addition, Mr. Stallings was instrumental in designing 
and improving the economic development opportunities of the Department 
of Energy's multipurpose canister [MPC] Program as an integral part of 
the interim storage facility. As a result of their efforts, I am 
confident that Congress will be better prepared to consider legislation 
concerning the management of spent nuclear fuel.
  As negotiator, Mr. Stallings also demonstrated the ability for the 
Department of Energy to develop meaningful communications with 
potential host States and increased community awareness and 
understanding of the emotional issues surrounding nuclear fuel. While 
the authority of Office of the Nuclear Waste Negotiator ended before a 
host site was designated, I believe it is important for Congress to 
continue in these educational efforts and open dialog.
  I would like to extend my sincere gratitude to Mr. Stallings for his 
work as nuclear waste negotiator. His findings and expertise are 
greatly appreciated and will prove invaluable as Congress moves forward 
with our Spent Nuclear Fuel Management Program for a permanent 
repository and temporary storage facility.
                                                     Office of the


                                     Nuclear Waste Negotiator,

                                  Washington, DC February 8, 1995.
     The Speaker of the House,
     U.S. House of Representatives
     Washington, DC.
       Dear Mr. Speaker: I am submitting the following as the last 
     report to Congress by the Office of the Nuclear Waste 
     Negotiator.
       As a result of a legal cloud over our authority to continue 
     operations, I terminated the mission of the Office on January 
     21, 1995. In closing the Office prior to completing its 
     legislated mission, I leave with a sense of lost opportunity, 
     although much was accomplished over my short fifteen month 
     term. I hope that this report will encourage those who still 
     believe in finding ways for the Federal government and the 
     states to work together for solutions to challenging and 
     controversial public policy issues.
       When Congress created the Office of the Nuclear Waste 
     Negotiator in 1987 as part of its amendments to the Nuclear 
     Waster Policy Act of 1982, it recognized the possibility that 
     the storage and disposal of the nation's civilian nuclear 
     waste could be accomplished through cooperation. By giving 
     the Office the authority to negotiate an agreement with a 
     state of tribe, Congress was essentially saying to the 
     states, ``Reliance on Federal supremacy may not be the only 
     way that we as a nation should deal with this issue.'' 
     Perhaps the legacy of this Office should be that we 
     demonstrated that the Federal government can work 
     cooperatively and constructively with the states on this 
     issues, if we are only willing to put forth the effort.


                 the office i assumed in november 1993

       Upon confirmation by the Senate in November of 1993, I took 
     charge of an Office that had been in operation since 
     September of 1990. My predecessor had remained in Office 
     until June of 1993, but with the change of Administrations 
     following the 1992 election, the Office was in essentially a 
     suspended operational status from
      November of 1992 until I was confirmed a year later. This is 
     important for four reasons.
       First, for an Office whose entire term is four years and 
     five months, a year hiatus is a very long time. Second, the 
     lost year was 
     [[Page E797]] an off-election year, which is when this 
     particular Office, dealing with such a controversial issue, 
     must make publicly recognizable progress if it is to make any 
     progress at all. Third, one of the four tribes that was 
     officially participating in the negotiated siting program 
     when I took Office, the Mescalero Apache tribe in New Mexico, 
     had become frustrated over that year with the lack of 
     progress and funding and was looking to other opportunities. 
     And fourth and perhaps most importantly, I found that with 
     the passage of that year whatever hope the nuclear utility 
     industry, the Department of Energy, and Congress had had for 
     the mission of the Office of the Nuclear Waste Negotiator was 
     gone. I received general support from these groups, but found 
     their energies focussed more on either a legislated solution 
     to temporary storage, abandonment of Federal away-from-
     reactor temporary storage altogether, or the development of a 
     private interim storage facility on tribal lands.
       With this as the backdrop I committed to making something 
     happen. Congress was on the right track in creating this 
     Office and it deserved the best chance it could get to be 
     successful.


                         reinventing the office

       The siting program that I took over had relied on what I 
     term a ``trash for cash'' approach. In return for hosting a 
     waste storage facility, the state or tribe would be rewarded 
     handsomely with payments and benefits that bore no necessary 
     relationship to the facility. This approach presented me in 
     November of 1993 with one frustrated tribe, and three tribes 
     still willing to consider whatever program I came up with. 
     There remained no viable non-tribal interests. I knew that to 
     even enjoy the ``possibility'' of coming to an agreement and 
     successfully siting a facility, perceptions had to change and 
     the Office had to be essentially ``reinvented''.
       I concluded that the reinvention needed to concentrate on 
     two aspects of the mission, making sure that the potential 
     hosts the Office worked with were inclusive of those that 
     presented the best opportunities for siting, and developing a 
     sufficiently defined presentation of facility and benefits to 
     permit meaningful evaluation and consideration. Ultimate 
     success would depend on whether the siting opportunity was 
     considered by the localities where siting a temporary storage 
     facility made practical sense, and
      whether the opportunity they considered was real and worthy 
     of consideration.


                    new approach to potential hosts

       With respect to the potential hosts, I committed to 
     continuing to work with the four tribes that were already in 
     the program, while seeking to approach potential hosting 
     opportunities that did not involve siting a facility on a 
     ``green field'', green field being a site that had not 
     previously experienced any environmental degradation. This 
     resulted in efforts being directed at closed military bases 
     and facilities and laboratories owned by the Department of 
     Energy. I did not have the time to conduct a ``volunteer'' 
     program. I do not think the voluntary approach to siting 
     works for this type of an issue. I think you need to tell 
     potential hosts that they are likely to be qualified, and ask 
     for their consideration.


                     seeking to change perceptions

       As to the presentation of facility and benefits, I knew 
     that much work would need to be done, and I found that it 
     wasn't until the fall of 1994 that I had a presentation with 
     which I was comfortable.
       In my confirmation I asserted my conclusion and firm belief 
     that the transportation and storage of nuclear waste was 
     safe. We have the technology and experience. This was a 
     radical departure from my predecessor, who proposed to 
     provide grant funding to potential hosts to allow them to 
     determine for themselves whether transportation and storage 
     was safe. I believed that as Negotiator, it was essential to 
     take a clear stand in order to be able to interact with 
     elected officials and the public with any credibility. Had I 
     not been able to take that stand, I would not have taken the 
     job.
       Given that the handling and storage of spent fuel was safe, 
     and recognizing that the perception of a storage facility as 
     nothing more than a ``dump'' (to coin a popular media term), 
     I wanted to know if it was possible for something to be done 
     with the spent fuel as opposed to just storing it. For the 
     next several months following my confirmation, I conducted an 
     extensive evaluation of whether spent fuel had value. I held 
     a roundtable discussion on February 10, 1994, with a dozen 
     scientists who were working on projects utilizing spent fuel. 
     The report that was issued after that roundtable documented 
     that spent fuel has potential value that will almost 
     certainly be realized at some time in the future. The
      projects that were perhaps the closest to being practical at 
     this time were those involving food irradiation and ozone 
     production, and of course this concept of value did not 
     even consider the potential value associated with 
     reprocessing.
       My efforts to pursue this question were widely 
     misinterpreted. This can best be summed up by my Deputy, 
     Robert Mussler, being told by a utility executive upon 
     hearing of this idea, ``Don't tell me spent fuel isn't 
     waste!'' Rather than trying to somehow convert a temporary 
     storage facility into an instant research park, I was trying 
     to get others to think about spent fuel differently, by 
     having the Office think about it differently. To my knowledge 
     no one had ever proffered the idea that spent fuel might have 
     value besides reprocessing, and I believe my willingness to 
     address this possibility in a direct, public manner, changed 
     the debate. I also believe that technology will advance and 
     the day will come when the value of spent fuel is recognized.


                   Developing a Concise Presentation

       Having dealt in a fairly short period of time with the 
     perception and approach to spent fuel, and its storage and 
     management, I set out to put together a concise presentation 
     that could be reasonably and fairly considered, evaluated, 
     and pursued or rejected by elected officials.
       This took more time than I had expected, but in the end it 
     was worth it. Out of a facilitated workshop on March 23, 
     1994, came the idea that the Department of Energy's multi-
     purpose canister (MPC) program may present an economic 
     development opportunity that could be coupled with the 
     temporary storage facility. We worked to develop the idea, 
     and coordinated that development with the Director of the 
     Office of Civilian Radioactive Waste Management at the 
     Department of Energy. The MPC Program involves manufacturing 
     and assembling Nuclear Regulatory Commission certified 
     containers for the handling and dry storage of spent fuel. 
     The program projects a need for 10,000 canisters, and is a 3 
     to 5 billion dollar project. By September 1994 we had 
     focussed our efforts on refining the presentation of the 
     economic development opportunities that the MPC program 
     presented to a potential host. The overriding consideration 
     in the development of this idea was that whatever part of the 
     MPC program might go to a state, it must make sense. We were 
     not proposing the creation of a heavy foundry industry in a 
     state that did not already have one. In such states the focus 
     would rather be on assembly and inspection.
       Although the presentation contained a number of other 
     elements to describe the facility and other associated 
     benefits, I felt that the MPC element was the most important 
     in conveying the message that this was a genuine opportunity 
     worthy of consideration. As I noted earlier, this 
     presentation was completed to my satisfaction in the fall of 
     1994.


             changing the approach to financial assistance

       Another aspect of the program that needed attention when I 
     took Office was the way that financial assistance was 
     provided to potential hosts to support their participation in 
     the negotiated siting program. My predecessor has relied on 
     grants administered by the Department of Energy, and at about 
     the time I was confirmed, a major element of that grant 
     program had been deleted by Congress. I decided that relying 
     on the Department of Energy to provide financial assistance 
     to potential hosts was not the best way to operate and 
     concluded that what we really should do is to instead 
     directly enter into cooperative agreements with those 
     potential hosts. The cooperative agreement is a funding 
     mechanism that anticipates interest and participation by both 
     parties in the activities funded. This fit much better with 
     the way I intended to interact with potential hosts. Since 
     our budget did not provide for the funding of cooperative 
     agreements, I approached the Director of the Office of 
     Civilian Waste Management for help. The Director and I worked 
     out the transfer of an initial $250,000 to the Office to fund 
     cooperative agreements that I might enter into. This ended up 
     working out very well, giving us the flexibility and 
     responsiveness we needed to establish and maintain credible 
     relationships.
       With the cooperative agreement funding mechanism in place, 
     and the development of the presentation that described the 
     temporary storage facility and the associated economic 
     development opportunities that the MPC program could bring 
     with it, I had what I needed to begin direct discussions with 
     those potential hosts where a temporary storage facility made 
     practical sense. It was a presentation that used an overhead 
     projector, and it was a very effective communication vehicle. 
     Unfortunately, with the closing of the Office I was not able 
     to give this presentation to all of those who I felt needed 
     to hear it.
       In this first part of the report I have discussed how I 
     changed, or reinvented, the negotiated siting program. I am 
     convinced that this was a viable program, open to 
     consideration by many governors and state officials. In the 
     second part of the report I will discuss the chronology of 
     interactions with potential hosts. I
      will then conclude with a brief discussion of the 
     circumstances of the closure of the Office.


                     PROGRESS WITH POTENTIAL HOSTS

       As discussed earlier, I took over the Office with one 
     frustrated tribe and three tribes that were at different 
     points in the process of their consideration of hosting a 
     storage facility. By the beginning of 1994, the Mescalero 
     Apache tribe had redirected their efforts to working with a 
     group of utilities to develop a private storage facility on 
     their reservation. Adding to this tribe's concerns with the 
     Federal negotiated siting program was the passage of a law 
     that I discussed earlier that took away from the tribe the 
     opportunity to receive 2.8 million dollars in grant monies to 
     pursue the Federal project. My support for the deletion of 
     this grant authority, based on concerns about the lack of 
     specificity on how the funds were to be used, did not help my 
     relations with the tribe. My Office had essentially no 
     contact with the 
     [[Page E798]] tribe following their commitment to the private 
     project. The private project was reject by the tribal 
     membership in a referendum held last month.
       The Tonkawa tribe in Oklahoma was in the process of 
     concluding their initial consideration of the project when I 
     took Office. Following one meeting with the tribal 
     leadership, and prior to any opportunity to have any broader 
     discussions with the tribal membership, the tribe rejected 
     the project in a referendum on August 12, 1994.
       The Fort McDermitt Paiute-Shoshone tribe in Oregon and 
     Nevada decided in 1994 to defer active consideration of the 
     project. Prior to this decision I was able to meet with the 
     tribal leadership and visit the reservation. I was also able 
     to meet with county officials in Humbolt County, Nevada, and 
     Malheur County, Oregon, as well as participate in a community 
     meeting in the town of McDermitt. Since the tribe's 
     reservation straddled the state line, even though the site 
     would be on the Oregon side of the reservation, the tribe was 
     very active in including the two counties and the community 
     in meetings, tours, and citizen advisory groups. The tribe's 
     deferral in 1994 was due to the gubernatorial contest 
     underway in Oregon. I should note that the tribe had their 
     first meeting with a representative of the newly elected 
     governor in January of 1995. Based on the meeting, the tribe 
     is optimistic that the new governor will be receptive to 
     discussing the merits of the project based on sound science, 
     notwithstanding the closure of the Office.
       The Skull Valley Goshute tribe in Utah continued to pursue 
     the project aggressively right up to the closure of the 
     Office. We completed a cooperative agreement with the tribe 
     for $48,000 to support the development of a framework for 
     negotiating an agreement for the tribe to host a storage 
     facility on their reservation. The development of the 
     framework was also to give each party an indication of 
     whether we seemed to have the ability to work constructively 
     together. Over the last half of 1994, in negotiating the 
     cooperative agreement and the framework for future 
     negotiations, I found that we indeed had the ability to 
     communicate and work effectively together. I was optimistic 
     about the prospects of entering into formal negotiations with 
     the tribe.
       At the time we began discussions to develop the cooperative 
     agreement with the tribe, we notified the state and county 
     that cooperative agreements were also to be made available to 
     them if they wished to participate at this time. Within days 
     of completing the cooperative agreement with the tribe, we 
     signed cooperative agreements with Tooele County for $18,000, 
     and the University of Utah for $25,000. The University was 
     interested in conducting an analysis of the economic and 
     transportation impacts of a storage facility on the 
     reservation, and the County intended to use their money to 
     have the University do the same type of analysis on a county 
     basis.
       In early December 1994, the Office sponsored a trip to the 
     Idaho National Engineering Laboratory for all members of the 
     tribe interested in seeing and learning about the storage of 
     spent fuel. Approximately one-fifth of the tribal membership 
     participated in the trip, and the response was very positive.
       On the week the Office closed, I received a completed 
     framework for negotiations signed by the tribal chairman. Had 
     the Office not closed I would have signed the framework and 
     the tribe and the Office would have then been in formal 
     negotiations. I cannot say that this would have necessarily 
     led to a completed agreement to be sent to Congress, but I do 
     know that to have even reached this stage was unprecedented.
       The work on the County analysis was stopped, but the 
     University report, based on costs already incurred, is to be 
     completed sometime later this month. I have directed that a 
     copy of the report be sent to the Office of Civilian 
     Radioactive Waste Management at the Department of Energy, 
     with hopes that they may be able to use it in their future 
     work.
       In addition to working with the tribes that I inherited, I 
     initiated contacts with the office in the Pentagon that 
     manages base closures to determine if closed bases offered 
     any siting
      opportunities. After providing them a list of criteria, we 
     received a listing of possible base closures that might 
     have the size and access needs of a storage facility. We 
     pursued each of those leads and at the time of Office 
     closure we were continuing to have discussions with the 
     base closure committee for the Wurtsworth Air Force Base 
     in Michigan. In the final analysis, much of the prior land 
     use planning for the closed bases precluded consideration 
     of the storage facility.
       In pursuing the challenges of seeking to work directly with 
     governors or their representatives, I employed what I would 
     term quiet diplomacy. This is the way that I believe that 
     Congress intended for the Negotiator to function and it is 
     indeed the only way that meaningful communications outside of 
     the public posturing imperatives can occur. It was very 
     effective. A free flowing dialogue was, and I believe would 
     have continued to be possible with many state executives. I 
     can report that since the presentation discussed above was 
     put together, I had established good lines of communications 
     in three states, and I was in the process of working to 
     expand that number. It is specifically this aspect of the 
     program and my efforts in this area that leave me with the 
     greatest sense of lost opportunity.


                               conclusion

       I have concluded that the management, storage, and disposal 
     of nuclear waste presents one of the greatest challenges to 
     the principles of federalism. I cannot say for certain that 
     my efforts would have resulted in a state willingly accepting 
     spent fuel storage, but I do know that the opportunity for 
     meaningful discussions existed. What I can say for certain is 
     that discussions I would have had with many governors would 
     have resulted in a greater awareness and understanding of the 
     controversial, emotional, and politically charged issues that 
     surround spent fuel. This is a problem that is not going to 
     go away. Unfortunately, this Office may have been the last 
     chance to develop mutually agreeable solutions. With its 
     demise we as a Nation are left with an unhealthy reliance on 
     Federal supremacy at a time when mutual solutions to issues 
     such as this are more important than ever.


                     termination of mission-closure

       The termination of the mission of the Office is occasioned 
     by a legal cloud over our authority to continue operations. 
     Congress had appropriated adequate funding for the full 
     fiscal year, but there was a question raised in early January 
     about the basis of
      authority for such continued operations. As part of my 
     aggressive pursuit of the opportunity to complete my 
     mission, I obtained the opinion of outside legal counsel 
     on the question of the authority to continue operations of 
     the Office until the end of this fiscal year. That outside 
     legal opinion concluded that such authority existed.
       This opinion was reviewed and concurred with by the General 
     Counsel of the Office of Management and Budget. I am advised 
     that the same conclusion was reached by the General Counsel 
     of the General Services Administration. However, I was told 
     that the Legal Counsel for the Department of Justice reached 
     a contrary conclusion. Given the sensitive nature of the work 
     underway, and the recognized urgency to make real progress 
     this year, the resolution of these conflicting views would 
     create significant obstacles and take time that I did not 
     have. It thereby essentially negated any chance of my 
     succeeding with the mission of the Office. As I said at the 
     time I was confirmed by the Senate, I have no interest in 
     keeping the Office open if there is little or no likelihood 
     of success.
       During the short period of orderly shutdown and closure of 
     the Office I secured an audit of our financial records by an 
     independent outside accounting firm. The report of that audit 
     concluded that at closure all financial records and 
     accounting practices were in order.
       Over the past fifteen months I have had the good fortune of 
     a dedicated, hard working, and highly competent staff. I'd 
     like to take this opportunity to express my appreciation for 
     the efforts of Michael Campilongo, Gary Catron, Maureen 
     Conley, Henry Ebert, Martha Fitzsimmons, Brad Hoaglun, Tom 
     Lien, Bob Liimatainen, Bob Mussler, Angie Neitzel, and 
     Jennifer Stone.
       I am very appreciative of having been asked by the 
     President to serve in this Administration. It was an honor 
     and a privilege to have had the opportunity to accept this 
     challenging assignment.
           Sincerely,
                                             Richard H. Stallings,
                                                       Negotiator.
     

                          ____________________