[Congressional Record Volume 149, Number 148 (Tuesday, October 21, 2003)]
[House]
[Pages H9777-H9780]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   MOTION TO INSTRUCT CONFEREES ON H.R. 6, ENERGY POLICY ACT OF 2003

  Mr. MARKEY. Madam Speaker, I offer a motion to instruct.
  The SPEAKER pro tempore (Mrs. Emerson). The Clerk will report the 
motion.
  The Clerk read as follows:

       Mr. Markey moves that the managers on the part of the House 
     at the conference on the disagreeing votes of the two Houses 
     on the Senate amendment to the bill H.R. 6 be instructed to 
     insist upon the provisions contained in--
       (1) section 14011 of the House bill relating to secure 
     transfer of nuclear materials;
       (2) section 14012(d) of the House bill relating to nuclear 
     facility threats, directing the Nuclear Regulatory Commission 
     to issue regulations, including changes to the design basis 
     threat, to ensure that nuclear facilities licensed by 
     Commission address the threat of a terrorist attack against 
     such facilities; and
       (3) section 14013 of the House bill requiring the Nuclear 
     Regulatory Commission, before entering into any agreement of 
     indemnification with respect to a utilization facility under 
     section 170 of the Atomic Energy Act of 1954, to consult with 
     the Assistant to the President for Homeland Security (or any 
     successor official) with respect to that facility concerning 
     whether the location of the facility and the design of that 
     type of facility ensures that the facility provides for the

[[Page H9778]]

     adequate protection of public health and safety if subject to 
     a terrorist attack, and that the Nuclear Regulatory 
     Commission also consult with the Secretary of Homeland 
     Security before issuing a license or a license renewal for a 
     sensitive nuclear facility concerning the emergency 
     evacuation plan for the communities living near the sensitive 
     nuclear facility.

  Mr. MARKEY (during the reading). Madam Speaker, I ask unanimous 
consent that the motion be considered as read and printed in the 
Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Massachusetts?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to clause 7 of rule XXII, the 
gentleman from Massachusetts (Mr. Markey) and the gentleman from Texas 
(Mr. Barton) each will control 30 minutes.
  The Chair recognizes the gentleman from Massachusetts (Mr. Markey).
  Mr. MARKEY. Madam Speaker, I yield myself such time as I may consume.
  I am offering this motion today to address one of the most 
inexplicable and indefensible decisions made by the House and Senate 
Republican energy conferees in their closed-door meetings. I am talking 
about the decision that has apparently been made by the Republican 
majority to weaken critical nuclear security provisions Democrats had 
earlier attached to the energy bill, H.R. 6, in order to better secure 
our Nation's 103 currently operating civilian nuclear power plants from 
the threat of terrorist attack.
  Remember less than 2 years ago, President Bush told the Nation in his 
State of the Union address, quote, our discoveries in Afghanistan 
confirmed our worst fears and showed us the true scope of the task 
ahead. We have seen the depths of our enemies' hatred in videos where 
they laugh about the loss of innocent life and the depth of their 
hatred is equaled by the madness of the destruction they design. We 
have found diagrams of American nuclear power plants and public water 
facilities, detailed instructions for making chemical weapons, 
surveillance maps of American cities and thorough descriptions of 
landmarks in America and throughout the world.
  So we know that nuclear power plants are at the very top of al 
Qaeda's list of potential targets in the United States. Despite this 
fact, the Republican conferees have apparently decided to weaken the 
nuclear security language in the energy bill. My motion covers three of 
the major weakening changes that have been made in the nuclear 
antiterrorism provisions in the energy bill.
  The first part of my motion addresses the decision by the House 
Republican conferees to eliminate the requirement for a mandatory 
Nuclear Regulatory Commission rulemaking to upgrade nuclear security 
regulations. Section 14012 of the House bill entitled Nuclear Facility 
Threats requires the NRC to issue regulations, including changes to the 
design basis threat, to ensure that licensees addressed the threats of 
a terrorist attack against a nuclear power plant in the United States. 
Under the provision, these new rules are required to be issued not 
later than 270 days after the submission of a detailed report by the 
President assessing the nature of the terrorist threat to the nuclear 
facilities in the United States or a year after enactment.
  The Republican conferees have now weakened this provision so that it 
no longer mandates a new NRC rulemaking, but instead merely authorizes 
the NRC to make such revisions to the design basis threats promulgated 
before the date of enactment of this section as the commission deems 
appropriate, based on the summary and classification report. There is 
no deadline. There is no requirement for any formal Nuclear Regulatory 
Commission rulemaking. This language guts the entire section and 
appears to allow the NRC to deem the interim orders that it has already 
adopted since the September 11 attacks to be sufficient and take no 
further action.
  This new language reflects what the NRC and the nuclear industry have 
always wanted, no action by Congress to require them to do anything 
more than that which they have already done on nuclear security. But is 
that the position that this body, which has twice voted to mandate 
Nuclear Regulatory Commission nuclear security rulemaking, really wants 
to take?
  You might say, perhaps the NRC has already addressed the problem in 
its secret orders. No, it has not. The NRC orders are classified and 
were prepared following closed-door consultations with the nuclear 
industry and no opportunity for public comment. I have read the NRC 
orders very carefully. And while I cannot discuss them in a public 
forum due to their security classification, I can tell this House that 
the NRC's orders are inadequate in several respects and fail to address 
the kind of threats that we now must be prepared for in a post-
September 11 environment. I would suggest to the Members that if they 
took the time to read these orders and to consult with anyone with any 
real expertise on security matters, they would share my concern that 
the NRC has failed to do enough to beef up security at our Nation's 
nuclear facilities.

                              {time}  1430

  But despite the President's warnings, the Republican energy conferees 
have now decided not to even require the Nuclear Regulatory Commission 
to undertake a rulemaking to tighten up security at these sensitive 
facilities.
  The second part of my motion addresses the Republican conferees' 
decision to weaken the House-passed requirements for full consultation 
with Homeland Security regarding nuclear security risks. Section 14013 
of the House bill, ``Unreasonable Risk Consultation,'' requires the 
Nuclear Regulatory Commission to consult with the Department of 
Homeland Security concerning whether the location of a new nuclear 
power plant or its design provides for adequate protection of public 
health and safety if subject to a terrorist attack before Price-
Anderson liability indemnification is provided to the plant.
  This provision originated as an amendment offered by the gentleman 
from California (Mr. Waxman) to last year's Price-Anderson bill, which 
this year was attached to the base text of H.R. 6. It also requires the 
Nuclear Regulatory Commission to consult with the Department of 
Homeland Security before issuing or renewing a license to operate a new 
or existing nuclear power plant to determine the adequacy of the 
emergency evacuation plan for communities around the plant. This 
provision originated as an amendment that I authored. We have also been 
informed that they are preparing to eliminate the requirement for 
consultation prior to a relicensing of an existing power plant, 
although the Republican conferees have yet to share this new language 
with us in this bill.
  The Republican conferees have now de-linked the Waxman amendment's 
consultation requirement from Price-Anderson's liability 
indemnification and eliminated the Markey amendment's requirement for 
consultation regarding adequacy of emergency evacuation plans. We have 
also been informed that they are preparing to eliminate the requirement 
for consultation prior to a relicensing of an existing power plant, 
although the Republican conferees have yet to share this new language 
with the Democrats.
  The elimination of the Waxman amendment's linkage between NRC 
consultation with Homeland Security and Price-Anderson indemnification 
takes all of the teeth out of the Waxman provision. Instead of 
mandating a consultation aimed at determining whether the design or 
location of a nuclear facility poses an unreasonable risk before giving 
the owner government-subsidized insurance, we are now merely calling 
for such consultation to take place.
  Moreover, tying consultation to the initial licensing of a plant, and 
not recovering relicensing of the 103 currently-operating nuclear power 
plants, greatly narrows the application of the amendment since no new 
nuclear power plant has been successfully ordered since 1973 and no new 
nuclear power plants are likely to be ordered for decades, if ever. If 
this change is made, there would be no mandatory consultation by the 
Nuclear Regulatory Commission with the Department of Homeland Security 
for any of the existing nuclear power plants in this country, not for 
Seabrook, not for Pilgrim, not for Indian Point, not for Diablo Canyon, 
for none.
  Finally, eliminating the specific requirement for consultation 
regarding

[[Page H9779]]

the adequacy of emergency evacuation plans in the event of a successful 
terrorist attack on a nuclear power plant means that we are failing to 
do what is needed to ensure that citizens living near plants such as 
the Indian Point reactor right outside of New York City are fully 
protected against the threat of a terrorist attack.
  And third and finally, my amendment addresses the decision to weaken 
nuclear materials transportation requirements: section 14011 of the 
House-passed bill, requiring the NRC to establish a system to better 
ensure the security of nuclear materials transferred to, from, or 
within the United States. This provision originated as an amendment I 
authored that has now passed the House twice in H.R. 6 in this Congress 
and as part of Price-Anderson reauthorization last year.
  The latest Republican conference report draft, in contrast, limits 
the NRC's regulations to the security of imports or exports of nuclear 
materials, failing to cover the transportation of these materials 
within our own country. This limitation is inexplicable in light of the 
fact that the Nuclear Regulatory Commission told Congress in 2002 that 
there are 2 million radioactive sources in the United States and that 
each year there are on average 300 reports of lost or stolen or 
abandoned radioactive materials.
  The NRC also reported at that time that in the past 5 years, there 
have been 1,495 reports of lost, stolen, or abandoned radioactive 
materials; 835 these have not been found. According to the NRC, a 
radioactive source as small as 1Curie, if dispersed by a bomb, ``could 
spread low-level contamination over an area up to several city blocks, 
possibly resulting in restriction of the area until the area was 
surveyed and decontaminated.'' But the Republican energy conferees have 
exempted transfers of these radioactive materials within the country 
from the new nuclear security requirements. That makes no sense.
  I urge my colleagues to vote for this motion today and send a strong 
message to the House and Senate Republican energy conferees that this 
body insists on tougher protections against a terrorist attack on our 
Nation's nuclear facilities; that this body insists on tougher 
protections against the threat of a radiological dirty bomb; and that 
this body rejects secret, back-room talks that result in the weakening 
of critical antiterrorism protections.
  I heard the majority leader earlier make reference to the fact that a 
motion to instruct might just reflect what the Members in this body are 
feeling that day. That is not what the provisions that we are talking 
about reflect. They reflect what has happened on this House floor 
several times with the Members voting for it. In fact, taking it out 
reflects what, in my opinion, a small number of Members and nuclear 
industry officials might feel on any particular day. But they do not 
capture what the consensus was that was reached by House Members and 
the general public about what must be done to enhance nuclear security.
  Madam Speaker, I reserve the balance of my time.
  Mr. BARTON of Texas. Madam Speaker, I yield myself such time as I may 
consume.
  We are not going to oppose the Markey motion to instruct conferees. I 
have listened to his comments closely and would say that they do 
reflect the changes as outlined. I would point out that while the 
gentleman from Massachusetts (Mr. Markey) is absolutely correct that 
the House has passed twice the issues that he refers to in his comments 
in the Senate conference with the House last year, Senate conferees, 
which at that time were a majority of Democrats, voted to strip all the 
provisions out that he has just alluded to and that the energy bill 
that we went to conference with with the Senate this year had none of 
these provisions in; and the provisions that he alluded to in his 
motion to instruct, section 14011, 14012(d), and 14013, are in the 
conference report. They have been changed in the ways that he said.
  Section 14011 did apply to domestic and international shipments. In 
the conference report, it does only apply to international; so he is 
correct on that. 14012(d), the gentleman from Massachusetts' (Mr. 
Markey) amendment that has passed the House did say ``shall'' and the 
conference report will come back with ``may''; so he is correct on 
that. And section 14013, the Department of Homeland Security as passed 
by the House did require a consultation before the grant of a Price-
Anderson indemnification agreement. And also before the issuance of a 
license for a new facility, as it is going to come out of conference, 
it will apply only to those issuances of a new license.
  So he is right in his characterization of the changes. So we get down 
to a situation, is the glass half full or half empty; and since the 
Senate had none of these provisions last year or this year, as a 
conferee, I would suggest to the gentleman from Massachusetts (Mr. 
Markey) that the glass is half full as opposed to the glass is half 
empty. Changes have been made; but we still have the issues in play, 
not as strong as he would wish them to be, but they are still in the 
bill, and it will be good public policy to make these changes that he 
supports. So I would hope that, while we support the motion to instruct 
conferees, the truth of the matter is that most of the conferring has 
been done. We expect to have this bill on the floor sometime next week. 
It is very unlikely we are going to reopen the conference; but 
certainly if it were to be reopened, we would support the gentleman 
from Massachusetts' (Mr. Markey) motion because since the House has 
already passed what the motion is instructing us to support, we have 
every reason to continue to support it knowing that it is a bicameral 
body and that the House does not always get everything it wants when we 
are negotiating with the Senate.
  So I support the motion to instruct and commend my friend for all his 
good work in this area over many years and pledge that we will continue 
to work together not just on this conference report but on future bills 
to make our nuclear facilities the best and the safest in the world.
  Madam Speaker, I reserve the balance of my time.
  Mr. MARKEY. Madam Speaker, I yield 3 minutes to the gentleman from 
Illinois (Mr. Rush).
  (Mr. RUSH asked and was given permission to revise and extend his 
remarks.)
  Mr. RUSH. Madam Speaker, as a conferee to the energy bill, I rise in 
strong support of the gentleman from Massachusetts' (Mr. Markey) motion 
to instruct conferees, and I want to commend him for his long history 
of leadership on the issue of nuclear security, which is the subject of 
this motion.
  Madam Speaker, I am delighted to hear the chairman of the 
subcommittee accept the gentleman from Massachusetts' (Mr. Markey) 
motion, but I do want to make two points: point one, that this motion 
should be accepted because of the substance of the gentleman from 
Massachusetts' (Mr. Markey) amendment; and, two, because of the 
process.
  Madam Speaker, on substance, the gentleman from Massachusetts' (Mr. 
Markey) motion is right on the money. The House-passed version of the 
energy bill contained important language pertaining to nuclear 
security. This language in H.R. 6 addresses a chronic failure on the 
part of the Nuclear Regulatory Commission to tighten up security at our 
nuclear power plants around the country. This language passed the House 
and was marked up in the Committee on Energy and Commerce. It is 
important that this language remains in the bill as a critical national 
security plank to protect our citizens from a terrorist attack. The 
fact that the latest draft of the conference report significantly 
weakens these security requirements is very disturbing and very 
perplexing. I know that the ranking member of the committee indicated 
that there was an acceptance on the part of the Republican conferees to 
accept this language. However, Madam Speaker, I just want to emphasize 
the fact that this was not done in a way that we can be proud of here 
in the House in regards to how this event came about.
  Madam Speaker, I just want to say that the second reason to vote for 
the motion is the lousy process that has infected this entire 
conference committee. The Republican conferees altered these important 
nuclear security provisions behind closed doors and without any input 
from Democratic conferees who sit on the committee of jurisdiction. And 
it is inexcusable that

[[Page H9780]]

the gentleman from Massachusetts (Mr. Markey), myself, and other 
Democratic members, especially from the Committee on Energy and 
Commerce, had no opportunity to discuss this important matter with our 
Republican counterparts.

                              {time}  1445

  For this reason alone, and in the name of a rational and deliberative 
process, I urge the Members of the House to accept this motion to 
instruct. Let us send a message that this bill is far too important to 
be discussed behind closed doors, without any input from the minority 
members of the conference committee.
  Madam Speaker, I add that it is really shameful and harmful to the 
democratic process for the Democratic conferees to not be included in 
the full deliberations of the conference committee.
  Mr. BARTON of Texas. Madam Speaker, I yield myself such time as I may 
consume, just to reiterate that we do not oppose the motion to 
instruct, and we support the gist of the gentleman's motion to instruct 
in terms of the policy. The House has already supported it twice, and 
the committee supported it twice. We just have to get the other body to 
support it, which, unfortunately, they have been unwilling to do in its 
totality.
  Madam Speaker, I yield back the balance of my time.


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mrs. Emerson). Members will refrain from 
characterizing action or inaction of the other body, including urging 
the Senate to take a specific action.
  Mr. BARTON of Texas. Madam Speaker, I said ``the other body.'' What 
did I say wrong?
  The SPEAKER pro tempore. Members will refrain from characterizing the 
other body.
  Mr. MARKEY. Madam Speaker, I yield myself such time as I may consume 
in order to conclude this debate.
  Madam Speaker, without question, back in 1787 when a deal was being 
cut on the construction of the Union and the small States demanded 
that, rather than equal representation for all States, that another 
body be created in order to represent them, that other body that was 
created at the time has developed peculiar characteristics that, 
unfortunately, are manifesting themselves here on the House floor 
today.
  There are many who look back with regret that that deal was ever cut, 
the grand compromise in the Constitution, allowing for that 
disproportionate influence, and I see nodding bipartisan agreement on 
the Republican side on this subject.
  Mr. BARTON of Texas. Madam Speaker, will the gentleman yield?
  Mr. MARKEY. I yield to the gentleman from Texas.
  Mr. BARTON of Texas. Madam Speaker, I think that agreement that the 
gentleman alluded to in the Constitution was one of the biggest 
mistakes in the Constitution.
  Mr. MARKEY. Madam Speaker, reclaiming my time, I thank the gentleman 
very much. I regret that Texas was not part of the Union at the time. 
Perhaps they could have exercised some influence in that final decision 
making.
  But the other body, as it likes to be called, and I understand why in 
many instances, this is a good example of where anonymity is something 
to be much desired and sought, that the other body here, according to 
the majority, is calling all the shots in terms of nuclear security, 
which is a premise which I doubt is actually accurate. I do believe 
that it was a bicameral Republican decision to take out the nuclear 
security issues, since we know that the Democrats in the Senate, like 
the Democrats in the House, are searching the corridors of this 
building trying to find where the meetings are taking place. We have no 
idea.
  We do know this though, that reports are rampant that the bill, when 
it comes out on the House floor, is going to be loaded with billions of 
dollars of subsidies for the nuclear industry. I understand it is that 
time of the year where the oil, gas, coal and nuclear industries just 
really think that they deserve billions of dollars in subsidies for 
each one of their industries from the taxpaying public, even though 
they are the wealthiest industries in the United States.
  But, it seems to me, the least that the nuclear industry should be 
willing to accept are antiterrorism provisions that are attached to the 
nuclear gifts which it appears the Republican House and Senate and 
White House is willing to, and I am sorry I said ``Senate,'' I meant 
the other body, that they appear willing to confer upon them.
  They should accept those additional safety measures, because the 
public, without question, gave an additional measure of wholehearted 
support to the President in his campaign to eradicate the threat of 
Saddam Hussein to the world because of his nuclear mujahideen, because 
of the contention he was trying to reconstitute his nuclear weapons 
program.
  Here, domestically, we know that nuclear power plants are similarly 
at the top of the terrorist target list for al Qaeda, and it seems to 
me the nuclear industry is acting in an irresponsible fashion in not 
accepting reasonable measures being adopted which guarantee that 
terrorists cannot be successful in using domestic nuclear materials to 
terrorize our country.
  So I regret that that language has been removed, and at this point I 
urge an ``aye'' vote on this motion to instruct.
  Madam Speaker, I yield back the balance of my time.


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore. The Chair would remind Members that it is 
not in order to characterize the actions or inactions of the Senate.
  The Chair would clarify for all Members that referring to the Senate 
as ``the other body'' does not cure such an infraction in debate.
  Without objection, the previous question is ordered.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to instruct 
offered by the gentleman from Massachusetts (Mr. Markey).
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. MARKEY. Madam Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this question will 
be postponed.

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