[Federal Register Volume 60, Number 85 (Wednesday, May 3, 1995)]
[Notices]
[Pages 21793-21798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10902]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Office of Civilian Radioactive Waste Management; Nuclear Waste
Acceptance Issues
AGENCY: Office of Civilian Radioactive Waste Management, Department of
Energy.
ACTION: Department of Energy final interpretation of nuclear waste
acceptance issues.
-----------------------------------------------------------------------
SUMMARY: This Notice responds to public comments on the Department of
Energy (DOE) Notice of Inquiry on Waste Acceptance Issues published on
May 25, 1994 (59 FR 27007). After analyzing public comments received in
response to the Notice, DOE has concluded that it does not have an
unconditional statutory or contractual obligation to accept high level
waste and spent nuclear fuel beginning [[Page 21794]] January 31, 1998
in the absence of a repository or interim storage facility constructed
under the Nuclear Waste Policy Act of 1982, as amended. In addition,
DOE has concluded that it lacks statutory authority under the Act to
provide interim storage.
FOR FURTHER INFORMATION CONTACT: Mr. Robert Waxman of the Department of
Energy Office of General Counsel at (202) 586-6975.
SUPPLEMENTARY INFORMATION:
I. Background
The Nuclear Waste Policy Act of 1982, as amended (Act or NWPA), 42
U.S.C. 10101 et seq., provides a comprehensive framework for disposing
of high level radioactive waste and spent nuclear fuel (SNF) generated
by civilian nuclear power reactors. In general, the Act sets forth
procedures for selecting a repository site and developing a repository
for disposal of high-level radioactive waste and SNF and for financing
the cost of such disposal. Section 302(a) of the Act authorizes the
Secretary to enter into contracts with the owners and generators of SNF
of domestic origin (utilities) for the acceptance and disposal of
SNF,1 and stipulates that the contracts provide that the Secretary
shall take title to the SNF as expeditiously as practicable following
commencement of operation of a repository. In return for the payment of
fees, section 302(a) also stipulates that the contracts provide that
the Secretary, beginning not later than January 31, 1998 will dispose
of such SNF.
\1\ In this notice, we limit our discussion to SNF, because that
is the primary concern of the utilities with whom DOE has executed
the Standard Contract.
---------------------------------------------------------------------------
DOE implemented the provisions of section 302(a) through
rulemaking. Following notice and comment, DOE promulgated the Standard
Contract for Disposal of Spent Nuclear Fuel and/or High Level Nuclear
Waste (Standard Contract), which set forth the contractual terms under
which the Department would make its disposal services available. 48 FR
16590 (April 18, 1983), codified at 10 CFR part 961. Under the terms of
the final rule promulgating the Standard Contract, all civilian nuclear
utilities desiring to dispose of SNF signed individual versions of the
Standard Contract.
Although the Act originally envisioned that a geologic repository
would be in operation, and DOE would be prepared to begin acceptance of
SNF by January 31, 1998, it since has become apparent that neither a
repository nor an interim storage facility constructed under the Act
will be available by 1998. DOE currently projects that the earliest
possible date for acceptance of waste for disposal at a repository is
2010.
Accordingly, DOE published the Notice of Inquiry on Waste
Acceptance Issues (NOI) to elicit the views of interested parties on:
(1) DOE's preliminary view that it does not have an obligation to
accept SNF in the absence of an operational repository or interim
storage facility constructed under the Act; (2) the need for interim
storage prior to repository operation; and (3) use of the Nuclear Waste
Fund to offset a portion of the financial burdens that may be incurred
by utilities in continuing to store SNF at reactor sites beyond 1998.
Written comments were initially due on or before September 22, 1994. 59
FR 27007 (May 25, 1994). DOE extended the comment period on the NOI
until December 19, 1994 to permit additional public comment. 59 FR
52524 (October 18, 1994).
II. Written Comments
DOE received 1,111 written responses to the NOI, representing 1,476
signatories, including utilities (38 responses), public utility
commissions and utility regulators (26 responses), Federal, state, and
local governments, agencies, and representatives (23 responses),
industry representatives and companies (30 responses), public interest
groups and other organizations (19 responses), and members of the
general public (975 responses). All written comments received by DOE in
response to the NOI were carefully reviewed and fully considered. The
majority of the responses to the NOI addressed the issue of DOE's legal
obligation to accept SNF beginning in 1998 and asserted that DOE has an
unconditional obligation to begin accepting SNF from the utilities by
January 31, 1998.
DOE previously published a notice of the availability of DOE/RW-
0462, ``Summary of Responses to the Notice of Inquiry on Waste
Acceptance Issues'' (March 1995). 60 FR 14739 (March 20, 1995). That
report contains a summary of all the comments received in response to
the NOI.
This Notice sets forth DOE's conclusions with respect to the legal
issues involved in the NOI. Section III below discusses DOE's final
interpretation of its obligations with respect to the 1998 waste
acceptance issue, addresses the issue of DOE's authority under the Act
to provide interim storage, and also contains DOE's conclusions on the
legal availability of the Nuclear Waste Fund to offset the potential
financial burdens that may be incurred by utilities in storing SNF on-
site beyond 1998.
III. Final Interpretation of Agency Obligations and Authorities Under
the Act
Most of the commenters on the NOI expressed the view that the
language in section 302(a)(5)(B) of the Act, which provides that ``in
return for the payment of fees established by this section, the
Secretary, beginning not later than January 31, 1998, will dispose of
the high-level radioactive waste or spent nuclear fuel as provided in
this subtitle,'' 42 U.S.C. 10222(a)(5)(B), creates an unconditional
legal obligation, beginning January 31, 1998, for DOE to initiate
acceptance of SNF from utilities under the Standard Contract. According
to these commenters, DOE's obligation is clear, non-discretionary, and
not inconsistent with DOE's duty to take title to SNF under section
302(a)(5)(A) of the Act following commencement of repository
operations. 42 U.S.C. 10222(a)(5)(A).
However, some commenters contended that DOE does not have an
unconditional duty to dispose of SNF beginning in 1998 in the absence
of an operational repository. They asserted that the obligations to
take title and dispose of SNF established in subsections (5)(A) and (B)
of section 302(a) of the Act must be read together and ultimately are
dependent upon the existence of an operational repository. Based upon
the entire statutory scheme and the legislative history of the Act,
these commenters suggested that the January 31, 1998 date does not
create an obligation to initiate SNF disposal regardless of the
availability of a repository, but rather indicates the ``sense of
Congress'' concerning an appropriate target date for arriving at a
solution to the problem of accumulating high level nuclear waste and
spent nuclear fuel.
After considering the views of the commenters, the provisions of
the Act and its legislative history, and the terms and conditions of
the Standard Contract, DOE has concluded that it does not have a legal
obligation under either the Act or the Standard Contract to begin
disposal of SNF by January 31, 1998, in the absence of a repository or
interim storage facility constructed under the Act.
A. DOE's Final Interpretation of Its Obligations Under Section
302(a)(5)
1. The Act does not impose a statutory obligation on DOE to begin
nuclear waste disposal in 1998 in the absence of [[Page 21795]] a
disposal or interim storage facility constructed under the Act.
Section 302(a)(1) of the Act authorizes the Secretary of Energy to
enter into contracts for acceptance of title, transportation, and
disposal of SNF with any person who generates or holds title to spent
fuel of domestic origin. 42 U.S.C. 10222(a)(1). Section 302(a)(5)
states that such contracts shall provide that:
(A) Following commencement of operation of a repository, the
Secretary shall take title to the high-level radioactive waste or
spent nuclear fuel involved as expeditiously as practicable upon the
request of the generator or owner of such waste or spent fuel; and
(B) In return for payment of fees established by this section,
the Secretary, beginning not later than January 31, 1998, will
dispose of the high-level radioactive waste or spent nuclear fuel
involved as provided in this subtitle.
42 U.S.C. 10222(a)(5). DOE's Standard Contract contains a provision
that reflects this statutory mandate. See 10 CFR 961.11.
a. Section 302(a)(5)(A), the so-called ``take title'' provision of
the Act, requires that each contract executed by DOE under the Act
provide that ``the Secretary shall take title to the high-level
radioactive waste or spent nuclear fuel involved as expeditiously as
practicable upon request of the generator or owner of such waste or
spent fuel,'' but specifically provides that the obligation to take
title applies only ``following commencement of operation of a
repository.'' 42 U.S.C. 10222 (a)(5)(A). Thus, the Act is clear that
DOE is required to take title ``expeditiously,'' but only ``following
commencement of operation of a repository.'' 42 U.S.C. 10222 (a)(5)(A).
Section 302(a)(5)(B), the so-called ``dispose'' provision of the
Act, requires that each contract shall also provide that ``in return
for payment of fees established by this section, the Secretary,
beginning not later than January 31, 1998, will dispose of the high-
level radioactive waste or spent fuel involved as provided in this
subtitle.'' 42 U.S.C. 10222 (a)(5)(B). While the Act does not define
the word ``dispose,'' it does define ``disposal.'' DOE believes that
the words ``dispose'' and ``disposal'' are merely different grammatical
forms of the same word, and that the Act's definition of ``disposal''
also defines DOE's obligation to ``dispose'' under section 302(a)(5)(B)
of the Act. The Act defines ``disposal'' to mean ``the emplacement in a
repository of spent nuclear fuel with no foreseeable intent of
recovery.'' 42 U.S.C. 10101(9). Thus, the mandate to dispose of SNF
beginning January 31, 1998, like the duty to take title to SNF,
requires the existence of an operating repository. See H.R. Rep. No.
491, Part 1, 97th Cong., 2d Sess. at 59 (1982).2
\2\ DOE notes that the statutory language on disposal quoted
above uses ``will'' rather than the term ``shall'' in setting forth
the Secretary's duty to dispose of nuclear waste. DOE believes the
use of the predictive term ``will'' in the disposal provision of the
Act, rather than the mandatory term ``shall'' which is used in the
take-title provision, indicates that the January 31, 1998 date
expresses the sense of Congress as to when the Department should
strive to have a repository in operation, rather than an
unconditional legal obligation to initiate acceptance of SNF by a
date certain.
---------------------------------------------------------------------------
The logic, language, and structure of section 302(a) require that
the mandate to dispose and the duty to take title must be read
together. Section 302(a)(1) of the Act, which authorizes the Secretary
to enter in contracts with utilities ``for acceptance of title,
subsequent transportation, and disposal of * * * (SNF)'', indicates
that the duty to accept title and the mandate to dispose are part of a
sequential process: The Act contemplates that ``taking title'' is a
predicate to ``disposal''. Similarly, section 123 of the Act provides
that ``[d]elivery, and acceptance by the Secretary, of any high-level
radioactive waste or spent nuclear fuel for a repository constructed
under this subtitle (42 U.S.C. 10131 et seq., the repository subtitle)
shall constitute a transfer to the Secretary of title to such waste or
spent fuel.'' 42 U.S.C. 10143. The ``delivery and acceptance''
provision of section 123 implements the ``take title'' provision of
section 302(a)(5)(A), and again contemplates that DOE ``take title''
prior to disposal in a repository.
b. Sections 302(a)(5) (A) and (B) of the Act must not only be read
together, but also must be read in the context of the entire Act. When
read in conjunction with other provisions in the Act, these provisions
clearly do not contemplate nuclear waste disposal by DOE beginning
January 31, 1998, in the absence of an operational repository.
The findings and purposes section of the Act states that ``the
Federal Government has the responsibility to provide for the permanent
disposal of nuclear waste,'' 42 U.S.C. 10131(a)(4), and that the
purpose of the Act is ``to establish a schedule for the siting,
construction, and operation of repositories that will provide a
reasonable assurance that the public will be adequately protected from
the hazards posed by high-level waste and such spent nuclear fuel as
may be disposed of in a repository.'' 42 U.S.C. 10131 (b)(1). As noted
above, the term ``disposal'' is defined in the Act to mean
``emplacement of nuclear waste in a repository with no foreseeable
intent of recovery.'' 42 U.S.C. 10101 (9).
However, the Act imposes numerous prerequisites on the Department's
ability to develop a repository and dispose of SNF that demonstrate
that the Act did not contemplate that DOE would have an unconditional
duty to begin disposing of SNF in 1998. For instance, the Act provides
that only Yucca Mountain, in Nevada, is to be characterized as a
potential repository site, 42 U.S.C 10172, and that DOE may not
commence construction of a repository at Yucca Mountain unless and
until the site been found suitable for a repository through the site
characterization process, 42 U.S.C. 10134. The Act specifically
recognizes that the Yucca Mountain site may be found unsuitable for
development of a repository, and states that ``if the Secretary at any
time determines the Yucca Mountain site to be unsuitable for
development as a repository, the Secretary shall terminate all site
characterization activities at such site * * * (and) reclaim the site
to mitigate any significant adverse environmental impacts caused by
site characterization at such site.'' 42 U.S.C. 10133(c)(3). Moreover,
even if Yucca Mountain proves suitable, the Act imposes additional
conditions on the actual development of the site as a repository. For
example, the Act provides that the Secretary must decide whether to
recommend approval of the site to the President; the President must
determine whether he considers the site qualified; and if the President
ultimately recommends development of the site to Congress, the host
state may disapprove that recommendation for any reason at all, in
which case an entirely new law must be enacted by Congress to override
the host state's disapproval. 42 U.S.C. 10134 and 10135. Assuming site
suitability, a favorable Presidential recommendation, and enactment of
a new law to override any state notice of disapproval, the Act further
requires DOE to obtain an NRC license to construct and operate a
repository. 42 U.S.C. 10134(b).
Each of these statutory conditions for construction and operation
of a repository represents a Congressionally-created contingency that
could prevent or delay construction and operation of a repository.
Given the number of these contingencies, Congress could not have
intended to impose an unconditional obligation on DOE to take and
dispose of SNF by a date certain.3
\3\ In addition, as discussed infra, beginning at page 19, the
Act contained only very limited authority for DOE to provide interim
storage in the event that a repository is not in
operation. [[Page 21796]]
---------------------------------------------------------------------------
2. The legislative history of the Act confirms that both the ``take
title'' and the ``dispose'' provisions of section 302(a)(5) require an
operating repository before their obligations attach.
Subparagraphs (A) and (B) of Section 302(a)(5) were originally part
of section 124 of H.R. 3809. The House Report on H.R. 3809 stated that
``Section 124 authorizes the Secretary to contract with utilities or
other agents requiring use of repositories constructed under this Act
to provide repository services in exchange for payments by repository
users to cover program costs.'' H.R. Rep. No. 491, Part 1, 97th Cong.,
2nd Sess. at 58 (1982). The House Report further stated that ``[a]ll
persons desiring to dispose of high level waste or spent fuel in
repositories constructed under this subtitle are required to pay a
ratable portion of the costs of such disposal.'' H.R. Rep. No. 491,
Part 1, 97th Cong., 2d Sess. at 58 (April 27, 1982). As the quoted
language indicates, the focus of section 124 was on contracting for the
disposal of spent nuclear fuel in a repository.
With regard to what emerged as subparagraph (A) of section
302(a)(5), the House Committee Report on section 124 of H.R. 3809
stated:
Paragraph 4(A) requires that under such contracts the Secretary
will be required to take title to high level waste or spent fuel, at
the request of the generator, as expeditiously as practicable
following the commencement of operation of a repository.
H.R. Rep. No. 491, Part 1, 97th Cong., 2d Sess. at 59 (1982). Thus,
subparagraph (A) in H.R. 3809, like subparagraph (A) in the Act,
clearly made commencement of operation of a repository a condition
precedent to taking title.
Significantly, the House Committee Report on H.R. 3809 also
described the source of the current Act's subparagraph (B) in terms of
the existence of a permanent disposal facility:
Paragraph 4(B) makes the Secretary responsible for disposing of
high level waste or spent fuel as provided under this subtitle in
permanent disposal facilities, beginning not later than January
1998, in return for the payment of fees established by this section.
Id. at 59. ``This subtitle'' referred to Subtitle A, ``Repositories for
Disposal of High-Level Radioactive Waste and Spent Nuclear Fuel,'' of
which section 124 was then a part. Here too, as the underscored
language and reference to Subtitle A make clear, the obligation
contemplated depended upon the successful development of a repository.
The conclusion that section 302(a)(5) of the Act was not intended
to create an obligation to dispose of SNF unless and until a repository
had been developed is also supported by a floor statement made during
the Senate's debate on the Act by the then Chairman of the Senate
Energy and Natural Resources Committee, a primary sponsor of the Act,
Senator James McClure. On December 13, 1982, Senators McClure, Simpson,
Jackson, Johnston and Domenici offered amendment number 4983, which
struck all the language after the enacting clause of H.R. 3809, and
replaced it with a Senate version of the proposed legislation. Section
302 of the Senate amendment would have required DOE to take title and
store or dispose of nuclear waste no later than December 31, 1996.
Unlike the House version of H.R. 3809, the Senate amendment made no
mention of an operating repository. See 128 Cong. Rec. S14,484, S14,501
(daily ed. Dec. 13, 1982). However, after proposing the Senate
amendment, Senator McClure then offered--and the Senate accepted--an
amendment to section 302(a)(5) of the substitute amendment which
brought the Senate version of that provision into conformity with the
House version contained in H.R. 3809. Senator McClure described the
effect of this amendment as follows:
Mr. President, this amendment amends section 302(a)(5) of the
substitute amendment to provide that the Secretary of Energy take
title to high-level waste or spent fuel as expeditiously as
practicable upon the request of the generator of such waste. In
addition, this amendment directs the Secretary to begin, not later
than January 31, 1998, to begin to dispose of the high-level
radioactive waste or spent nuclear fuel from those generating such
waste. Under the substitute amendment, there was some concern that,
in directing the Secretary to take title to and dispose of such
wastes no later than December 31, 1996, we might not be giving the
Secretary enough flexibility to tailor his schedule for accepting
such wastes to the availability of a repository. This amendment
simply directs the Secretary to take title to such wastes as
expeditiously as practicable, upon the request of the generator of
those wastes, after commencement of repository operation.
128 Cong. Rec. S15,657 (daily ed. Dec. 20, 1982). This summary of what
section 302(a)(5) ``directs'' indicates that Congress did not intend to
establish an inflexible schedule and that it intended to ``tailor''
DOE's obligation for accepting SNF to the availability of a repository,
albeit that it intended for DOE to proceed ``as expeditiously as
practicable.''4
\4\ A few commenters claimed that certain statements from the
legislative history of the monitored retrievable storage provisions
of the Act support their assertion that DOE has an unconditional
duty to accept SNF for disposal beginning in 1998. They cited the
following statement of Senator Bennett Johnston, made during the
floor debate on the 1987 amendments, as evidence of Congress' intent
that the Department has an unconditional obligation to begin
accepting waste in 1998:
The MRS is not an alternative to at-reactor storage, and it is
not a substitute for a repository. Utilities are required to take
care of their own storage until 1998, but the Federal Government has
a contractual commitment to take title to spent fuel beginning in
1998. An MRS will better ensure that the Department is able to meet
this contractual commitment to accept spent fuel beginning in 1998.
133 Cong. Rec. S16,045 (daily ed. Nov. 10, 1987). The following
statement of Senator James McClure from the same debate was also
relied upon by a commenter:
Furthermore, we have an option to proceed with the construction
of a monitored retrievable storage (MRS) facility for receipt and
temporary storage of fuel by 1998 and thereby meet the Government's
statutory obligation to begin taking spent fuel by that date.
133 Cong. Rec. S15,795 (daily ed. Nov. 10, 1987).
DOE believes that these 1987 statements do not supplant the
foregoing analysis of what Congress intended when it enacted Section
302(a)(5), because they were not contemporaneous with passage of the
Act in 1982. Post-enactment views by individual legislators are
entitled to little weight in construing a statute enacted by a prior
Congress.
---------------------------------------------------------------------------
3. The Standard Contract, which was promulgated through notice and
comment rulemaking, implements the provisions of section 302(a)(5) of
the Act.5 Article II of the Standard Contract, entitled ``Scope,''
states that ``[t]he services to be provided by DOE under this contract
shall begin, after commencement of facility operations, not later than
January 31, 1998 and shall continue until such time as all (nuclear
waste from the contracting utilities) has been disposed of.'' 10 CFR
961.11, Art. II.
\5\The U.S. Court of Appeals for the District of Columbia
Circuit has held that the Standard Contract should be treated as
more akin to a regulation, rather than a traditional contract, since
its terms were established by rulemaking following notice and
comment. Commonwealth Edison Co. v. United States Department of
Energy, 877 F.2d 1042, 1045 (D.C. Cir. 1989).
---------------------------------------------------------------------------
Some commenters asserted that the language in Article II of the
Standard Contract that ``(t)he services to be provided by DOE under
this contract shall begin * * * not later than January 31, 1998,''
either represents DOE's recognition of, or itself creates, an
unconditional legal obligation to begin accepting nuclear waste by
1998. However, the Standard Contract contains the specific condition
that the services to be provided by DOE ``shall begin after
commencement of facility operations.'' 10 CFR 961.11, Art. II.6
One of the recitals in the preamble to [[Page 21797]] the Standard
Contract similarly indicates that the Department's obligations are
conditioned upon the existence of an operational storage or disposal
facility constructed under the Act:
\6\ Under the Standard Contract, the term ``DOE facility'' is
defined to mean either a disposal or interim storage facility
operated by or on behalf of DOE. See 10 CFR 961.11, Art. I.
---------------------------------------------------------------------------
Whereas, the DOE has the responsibility, following commencement
of operation of a repository, to take title to the spent nuclear
fuel or high-level radioactive waste involved as expeditiously as
practicable upon the request of the generator or owner of such waste
or spent nuclear fuel.
10 CFR 961.11, Preamble. The Standard Contract, like the Act, thus
predicated DOE's obligation on the development of a facility under the
Act.
This reading of the Standard Contract was confirmed by a statement
of former Secretary Donald Hodel in 1984, the year following the
promulgation of the Standard Contract. In a written response to a
question posed in a letter from Senator Bennett Johnston, Secretary
Hodel stated:
The Department is authorized to implement the Act through
contractual commitments. To this end, the Department plans to
incorporate into its contracts provisions which specify the minimum
amount of spent fuel and waste which the Department will be
obligated to accept, not later than January 31, 1998. Since these
contracts have not yet been modified, it would be premature for the
Department to speculate on particulars that might ultimately be
incorporated in any or all of the contracts. However, it is my
intention that this commitment in the Contracts, together with the
overall thrust of the Act, will create an obligation for the
Department to accept spent fuel in 1998 whether or not a repository
is in operation.
Although former Secretary Hodel stated that he intended for DOE to
assume an unconditional obligation to begin accepting SNF in 1998, he
also recognized that the terms of the Standard Contract would have to
be changed in order to create such an unconditional obligation.
However, the Department never undertook a rulemaking to modify the
Standard Contract. Thus, this essentially contemporaneous construction
of the Standard Contract reinforces the conclusion that the Contract
did not and does not create, or recognize, an unconditional
obligation.7
\7\One commenter on the NOI criticized DOE's denial of an
obligation to begin accepting SNF from domestic utilities on the
ground that DOE has accepted ``foreign SNF'' for storage at its own
facilities. However, the authority for acceptance of foreign SNF
arises under the Atomic Energy Act, as amended, not under the
Nuclear Waste Policy Act. The foreign fuel in question, which is not
commercial SNF from domestic utilities but much smaller fuel
elements from research reactors, contains highly enriched uranium
that must be controlled for nuclear nonproliferation purposes. It is
because of these nonproliferation concerns that the United States
government has in some circumstances received foreign SNF under the
Atomic Energy Act in order to remove it from international commerce.
No Nuclear Waste Fund monies are (or could be) used for this storage
activity.
---------------------------------------------------------------------------
B. Interim Storage Authority
The Department recognizes that some utilities are running out of
on-site storage capacity and will have to provide additional storage
capacity until a repository or interim storage facility is available.
In response to the NOI, a number of comments stated that DOE should
provide interim storage. However, DOE has concluded that it has no
authority under the Act to provide interim storage in present
circumstances.8
\8\DOE's multi-purpose canister program is part of DOE's overall
transportation strategy for disposal of SNF, and the use of Nuclear
Waste Fund monies to support this work is authorized by Section
302(d)(4) of the Act, which provides that the Secretary may make
expenditures from the Nuclear Waste Fund for any costs incurred in
connection with the transportation of SNF.
---------------------------------------------------------------------------
Interim storage by DOE was contemplated by the Act in only two
situations, neither of which currently applies. Under the Act, DOE had
authority to offer a limited interim storage option. See 42 U.S.C.
10156. However, that authority has, by its express terms, expired.
Under the Act, DOE also has authority to provide for interim storage in
an MRS. That authority also is inapplicable, however, because the Act
ties construction of an MRS to the schedule for development of a
repository. See 42 U.S.C. 10165, 10168. Because these are the only
interim storage authorities provided by the Act, and because the Act
expressly forbids use of the Nuclear Waste Fund to construct or expand
any facility without express congressional authorization (42 U.S.C.
10222(d)), DOE lacks authority under the Act to provide interim storage
services under present circumstances.
C. Use of Nuclear Waste Funds to Offset Financial Burdens to Utilities
of Storing Nuclear Waste Beyond 1998
Section 302(d) of the Act states that the Nuclear Waste Fund may be
used only for radioactive waste disposal activities under titles I and
II of the Act, including a number of enumerated activities.9 42
U.S.C. 10222(d). Paying for the costs of on-site storage is not
enumerated in that provision.
\9\Section 302(d) further provides that no funds may be spent on
construction or expansion of any facility unless expressly
authorized.
---------------------------------------------------------------------------
Although the Act thus does not provide for use of the Nuclear Waste
Fund to help utilities defray costs of on-site storage, if the Act were
construed unconditionally to require DOE to begin providing disposal
services in January of 1998 notwithstanding DOE's inability to do so,
utilities might be entitled to financial relief under the terms of the
Standard Contract. Since the Act itself does not address the
consequences of a failure by DOE to perform its obligations under the
Act, it has fallen to DOE as the administering agency to fill the gap
left by Congress. DOE has done so through the Standard Contract, which
expressly addresses the situation in which performance by either party
to the contract is delayed.
Under Article IX, entitled ``DELAYS,'' the Standard Contract
provides that neither party shall be liable for damages in the case of
unavoidable delay and that the parties will adjust their schedules, as
appropriate, to accommodate such delay. Art. IX, A. In the case of an
avoidable delay, however, the Standard Contract provides that the
``charges and schedules specified by this contract will be equitably
adjusted to reflect any estimated additional costs incurred by the
party not responsible for or contributing to the delay.'' Art. IX, B.
Were DOE deemed to have an unconditional obligation to begin providing
disposal services in 1998, we have concluded that the Delays Clause
would be applicable in the event of a failure to perform. Were the
Delays Clause to be invoked, Article XVI of the Standard Contract
establishes the process for resolving disputed questions of fact (e.g.,
whether a delay has occurred and, if so, whether it was avoidable or
unavoidable). Article XVI provides for initial resolution of disputed
facts by the designated Contracting Officer, with a right of appeal to
the DOE Board of Contract Appeals. In sum, it is the Department's view
that, were the Act to be construed to impose an unconditional
obligation to begin to provide disposal services in 1998, the
appropriate remedy would be the contractual remedy under the Delays
Clause and Article XVI.
D. Availability of Alternative Dispute Resolution Procedures
The Department believes that important public and private interests
are implicated by the need for orderly financial and technical planning
with respect to the Department's inability to accept SNF in 1998. There
are also equitable considerations that may argue for some form of
relief to help offset costs incurred as a result of the Department's
inability to begin acceptance of SNF in 1998. The Department recognizes
that these equitable and public interest considerations may be better
addressed [[Page 21798]] and resolved through settlement discussions
than through litigation or through the process established by Article
XVI of the Standard Contract. Therefore, in accordance with the
Department's commitment to increased use of alternative dispute
resolution procedures, the Department is prepared to discuss with
utilities and other parties to the pending litigation (Northern States
Power Company v. U.S. Department of Energy, Nos. 94-1457, 94-1458, 94-
1574 (D.C. Cir., 1994)) financial or other assistance that may be
appropriate in light of the Department's inability to begin providing
disposal services in 1998.
Issued in Washington, D.C., April 28, 1995.
Daniel A. Dreyfus,
Director, Office of Civilian Radioactive Waste Management.
[FR Doc. 95-10902 Filed 5-2-95; 8:45 am]
BILLING CODE 6450-01-P