UPDATE ON NUCLEAR WASTE PROGRAM DEVELOPMENTS

As of April, 1997

Legislation

Legislation that would have authorized development of an interim storage facility for spent fuel and high-level waste at the Nevada Test Site failed to pass the last session of Congress when President Clinton announced he would veto it on the grounds that (1) it is inappropriate to site an interim site until Yucca Mountain has been determined suitable as a repository, and (2) the legislation would have weakened radiation protection standards and pre-empted state and federal health and safety laws and regulations. While the Senate passed a bill (S 1936), the final vote was not enough to override the promised veto. As a result, the House of Representatives decided not to act on companion legislation (HR 1020) in the final days of the session.

In January, 1997, Senators Frank Murkowski (R-AK) and Larry Craig (R-ID) introduced a new bill (S 104) that mirrored, with a few minor modifications, the provisions of the Senate bill from last session. Key provisions of the original version of S 104 include:

Authorization for DOE to construct an interim storage facility (ISF) Nevada Test Site (NTS);

Requirement for DOE to begin accepting spent fuel from utility companies for storage at the ISF by November 30, 1999;

Authorization for DOE to construct an intermodal transfer facility at Caliente, Nevada and authorize DOE to ship waste by train to Caliente and from there via heavy haul truck to the interim facility that would be located in the north east corner of the NTS;

Retains the language in S 1936 preempting any federal, state, or local law or regulation that is "inconsistent with or duplicative of the requirements of the Atomic Energy Act of 1952 ... or this Act [S 104]";

Mandates that the standard for protection of the public from radiation exposures from Yucca Mountain be set arbitrarily at 100 millirems per year "unless the [Nuclear Regulatory] Commission determines by rule that such standard would constitute an unreasonable risk to health and safety..." (The same language as contained in last session's bill);

Requirement for the NRC to modify its repository licensing regulations to permit DOE to emplace waste in the repository prior to meeting the requirements for waste isolation in order to permit DOE to gather "sufficient confirmatory data" on repository performance. This provision in the bill would codify DOE's plan to load the repository with spent fuel and waste prior to having adequate information on the long term waste isolation performance of the facility;

Requirement for DOE to develop a comprehensive transportation management plan for waste shipments and to "minimize, to the maximum practicable extent consistent with Federal requirements governing transportation of hazardous materials, transportation of spent nuclear fuel and high-level radioactive waste through populated areas." However, this provision applies only to shipments from reactor sites to the nearest "mainline transportation facilities" and does not apply to the entire shipping routes to be used.

Requirement for DOE to provide technical assistance and funds for training emergency response personnel to state, units of local government, and Indian tribes through whose jurisdiction DOE plans to ship "substantial" amounts of spent fuel and high-level waste. No definition as to what constitutes "substantial" amounts of waste is provided;

Provides oversight funding for affected local governments and affected Indian tribes, but not for the State of Nevada;

Authorization for DOE, subject to congressional appropriation, to enter into benefit agreements with Lincoln and Nye counties that provide for financial payments and land transfers; and

The new bill (S 104) would replace, in its entirety, the existing Nuclear Waste Policy Act.

The bill was marked up by the Senate Energy and Natural Resources Committee (chaired by Sen. Murkowski) on 3/12 and 3/13/97. It was then reported out of committee by a 15 - 5 vote. In floor action, a substitute bill with a number of amendments was put forth and eventually approved by a 65 - 35 vote, with one Senator absent and not voting. The substitute bill contains a revised schedule for waste acceptance at the interim storage facility and a series of transportation amendments put forth by Sen. Wyden of Oregon. It also contains prohibitions against locating interim storage facilities at DOE's Hanford site, the Savanah River facility, or the Oak Ridge National Laboratory. Some specific differences with the original version of S 104 include:

The bill, as passed, abandons its previous November 1999 opening date deadline for an interim nuclear waste storage facility. Instead, if the President does not make a determination that Yucca Mountain is unsuitable for development as a permanent nuclear waste repository, then DOE must submit an NRC license application no later than April 30, 1999 [Sec.205]. The NRC can take no more than 32 months to grant or deny a license which would be, at the latest, December 2001. DOE must then begin accepting waste at the facility 18 months later, in June 2003. [Sec. 101]

Directly challenging the Administration's policy, the bill would force an interim storage facility to be built in Nevada even if Yucca Mountain is found unsuitable as a repository. Specifically, after a finding that Yucca Mountain is unsuitable, if the President does not designate an alternate site within 18 months, or if construction of an interim storage facility at a designated site is not approved within two years, then the interim storage facility site automatically reverts back to Nevada. The bill limits the President's options by specifically prohibiting him from designating the Hanford Site in Washington state, the Savannah River Site in South Carolina, or the Oak Ridge Reservation in Tennessee as locations for construction of an interim storage facility. [Sec. 204]

In the absence of an "emergency" situation, no shipments of spent fuel or high-level waste will be allowed through the jurisdiction of any state or Indian tribe unless technical assistance and funds have been made available to states and tribes at least three years prior to any shipment [Sec. 203]. The bill also provides that funding must be provided for shipments to an interim storage facility regardless of whether such facility is publicly or privately operated.

With regard to selecting routes for nuclear waste transportation, the bill requires DOE to "evaluate the relative safety of the proposed shipping routes and shipping modes" compared with alternative modes and routes. DOE is also directed to avoid shipping through populated areas to the extent allowed under current regulations. For highway routing, if more than one "preferred route" under Department of Transportation highway routing rules is designated from a reactor site to the interim storage facility, then DOE must consider a number of specific factors in selecting the primary route for shipment. Existing DOT highway routing rules typically allow the use of a number of interstates. The bill qualifies the requirements for routing by stipulating that the route selection process must be consistent with existing US DOT routing regulations. This means that DOE can still insist that it is the carriers ultimate responsibility to select shipping routes. There is nothing in the bill that addresses the inconsistencies with DOE proposal to fully privatize the transportation of spent fuel and HLW. Since there are currently no existing DOT rules governing rail routing, the bill requires DOT to develop such rules no later than one year after the bill is enacted. [Sec. 202]

The bill requires DOE to develop a comprehensive transportation plan and develop campaign-specific plans in cooperation with states and tribes.

The bill does not require full-scale destructive testing of transportation casks, as called for by the Western Governors Association.[Sec. 203]

President Clinton has reaffirmed his commitment to veto S 104 or any similar legislation should it reach his desk. The fact that the senate bill did not receive enough votes to make it "veto proof" suggests that this legislation may be heading for the same fate as last year's bills. Nevada's two senators are confident that they have more than enough votes to sustain a presidential veto if it come to that.

A companion bill to S. 104, similar to the House bill (H.R. 1020) which died at the end of last session, was introduced in the House of Representatives in April. H.R. 1270, introduced by Rep. Fred Upton (R-Mich), would force the construction of an interim nuclear waste storage facility at the Nevada Test Site near Yucca Mountain. The bill calls for the interim facility to commence operations no later than January 31, 2000.

Status of DOE's Yucca Mountain Program

(1) Viability Assessment

DOE is moving ahead with a revised program plan that calls for the completion of a "viability assessment" for Yucca Mountain by the end of September, 1998. This assessment will not constitute a finding that Yucca Mountain is a "suitable" site for a repository or a demonstration that it can meet all the requirements for waste isolation. Instead, it will be an assessment as to whether and under what conditions the project is viable from the standpoint of cost and licensing.

In preparation for the viability assessment, DOE is preparing a new total system life cycle cost assessment for the project. The Department is also working on a licensing strategy and is conducting a series of "expert elicitation" exercises to address the technical issues DOE expects to have to resolve to obtain a facility license. The results of the elicitations will be used to inform a preliminary total system performance assessment that will attempt to demonstrate Yucca Mountain's capability for isolating waste over the long term.

When completed, the viability assessment will be submitted to the President and will form the basis for subsequent Administration decisions about the future direction of the program. Assuming that no new legislation on interim storage is enacted prior to the assessment, the President will have three options available to him when he receives it. He can accept the assessment and, assuming DOE finds Yucca Mountain to be viable, decide to continue with the current Yucca Mountain schedule - which calls for the repository to begin operation in 2010. He could decide, again assuming Yucca Mountain is viable, that it would be appropriate to support interim storage nearby and accelerate the waste acceptance schedule at such a facility. Or he could determine that the viability assessment was insufficient or inconclusive and either require DOE do more work on suitability or call for changes in national policy.

(2) Transportation

DOE is continuing to move ahead with its proposal to privatize the entire system for shipping spent fuel and high-level waste from reactors/generators to a repository or interim storage facility. In December, 1996, DOE issued for comment a draft request for proposals (RFP) that would be used to identify a series of four regional contractors to manage everything including the procurement of shipping and storage casks, the acceptance of spent fuel and waste at reactor location, the entire range of shipping operations (including mode and route selection, carrier operations, interactions with states, communities, and the public, etc.), temporary storage of the fuel that may be needed, and ultimate delivery to a repository or interim facility.

Two "pre-solicitation conferences" on the draft RFP have been held at DOE's headquarters office in Washington, DC, and DOE is accepting comments on the proposal through May 15^th, 1997. Reaction from states and multi-state regional organizations such as the Western Interstate Energy Board has been generally critical and largely stimulated by DOE pronouncements that the goal of the initiative is to create a "market driven" transportation system that will be responsive primarily to the need to keep costs as low as possible. There is concern, among other things, that the multi-regional system of supercontractors envisioned by the current version of the proposal will be delegated too broad a range of authority for making crucial decisions (such as route selection, emergency preparedness levels along routes, etc.) and will significantly complicate corridor states' ability to interact with the federal transportation program. For example, many states (especially those in the Midwest and west) will have to deal with several different transportation contractors depending on where the waste being shipped is coming from. That could mean different routes being used, uncoordinated shipping schedules, and vastly complicated and expensive requirements for preparedness and response.

The privatization initiative is a major departure from past DOE policy of providing for strong centralized planning for spent fuel and high-level waste shipments. It has the potential to add significantly to the level of uncertainty that already exists with respect to waste transportation.

(3) The new Energy Secretary and the Resignation of the Director of the Office of Civilian Radioactive Waste Management (OCRWM)

On March 12^th, Federico Pena was confirmed by the Senate (99 -1) as the new Secretary of Energy replacing Hazel O'Leary. In his confirmation hearings, Pena supported the Administration's position on interim storage and stressed the need to make a determination about Yucca Mountain as a repository site before making changes in current national policy. Pena is a newcomer to the energy arena but is known as a fast learner, a good manager, and a team player. The overall direction he will bring to the Department and the level of independence he will be permitted is, as yet, unclear. The fact that he doe not have close ties to the commercial nuclear power industry - as did his predecessor - is viewed as a good sign in Nevada.

Shortly after the Pena nomination was announced, Dr. Daniel Dreyfus, Director of OCRWM, announced his resignation effective January 20, 1997. Dreyfus has been the prime mover behind the new program plan for the high-level waste program and was the initiator of the viability assessment as a way of expediting decisions about Yucca Mountain. No replacement has been named to date, and it is still unclear what, if any, effect Dr. Dreyfus' departure will have on the DOE program.

(4) Activities at Yucca Mountain

DOE's tunneling operation is continuing at Yucca Mountain, with the 25 foot diameter tunnel boring machine (TBM) now about four and two-thirds miles through the initial five mile loop of what DOE calls the Exploratory Studies Facility (ESF). The TBM is expected to have "daylighted" from the mountain at the south portal on or about April 25, 1997. Tunneling has been slowed considerably due to extremely fractured and blocky rock that was encountered throughout most of the tunnel, and progress to the south portal has been difficult to predict because of the rock quality. What will happen after completion of the initial loop is unclear but will likely be determined by the level of funding Congress provides to DOE in FY 1998. However, in February DOE put the TBM up for sale, indicating that the machine, specially manufactured for the Yucca Mountain project at a cost of some $16 million, will not be used for any further tunneling.

Through much of the length of the tunnel, the TBM has encountered highly fractured and often unstable rock conditions requiring extensive shoring and supports. The poor rock quality has significant implications for waste isolation, especially in the thermally hot repository DOE is designing. It also will add considerably to the cost of constructing the more than 120 miles of tunnels needed to emplace waste in the mountain.

DOE researchers have also found evidence of fast water movement in fractures and faults throughout the repository block. Such water movement is deduced from the presence of Chlorine 36, a byproduct of above-ground nuclear tests in the 1950's, that has been deposited in fractures and fissures encountered throughout the ESF tunnel. The Chlorine 36 finding means that water from the surface carried the isotope more than 1,200 feet below the crest of Yucca Mountain in less than 50 years - a flow rate that is considered very rapid and much faster than would be permitted under current siting guidelines for a repository.

(5) Proposed Revisions to DOE's Guidelines for Siting a Repository at Yucca Mountain

The Nuclear Waste Policy Act of 1982 (PL 97-425) required the Secretary of Energy to develop guidelines by which to evaluate potential repository sites. Section 112 (a) of the Act spells out in detail the specific factors that must be covered by these guidelines, which were intended to provide the tool by which DOE was to both discriminate among competing sites in narrowing the number of sites and subsequently assess the suitability of the site ultimately recommended for development as a repository. The statutory requirement specifically mandates that specific factors be evaluated in assessing site suitability, including factors pertaining to the location of valuable natural resources, hydrology, geophysics, seismic activity, atomic energy defense activities, proximity to water supplies, proximity to populations, the effect upon the rights of users of water, and proximity to components of the National Park System, the National Wildlife Refuge System, the National Wild and Scenic Rivers System, the National Wilderness Preservation System, or National Forest Lands. The guidelines were also required to take into consideration the proximity to sites where high-level radioactive waste and spent nuclear fuel is generated or temporarily stored; the transportation and safety factors in moving such waste to a repository; and population factors that would disqualify a site.

In 1984, DOE issued a comprehensive set of guidelines after a lengthy public rulemaking process. Those original guidelines contained qualifying and disqualifying conditions for factors that encompassed each of the areas covered by Section 112 of the Act. While some of those guidelines were applicable only to the comparison of various sites (something that became unnecessary after 1987 when Congress directed DOE to evaluate only the Nevada site), the core group of guidelines clearly were intended to provide the benchmarks by which the suitability of Yucca Mountain could be assessed.

On December 17, 1996, DOE issued a Notice of Proposed Rulemaking seeking public comments on a major revision to the siting guidelines which would, if adopted, replace the comprehensive set of specific and objective guidelines with two very general and highly subjective ones. The comment period ended on March 17^th, 1997. The new guidelines being proposed are as follows:

"960.6-1 Postclosure system guideline

Qualifying Condition. The Geologic repository shall allow for the containment and isolation of radioactive waste after permanent closure in accordance with the EPA standards established specifically for the Yucca Mountain site and NRC regulations implementing those standards.

960.6-2 Preclosure radiological safety system guideline

Qualifying Condition. During construction, operation, and closure, the geologic repository shall perform in accordance with the EPA standards established specifically for the Yucca Mountain site and the applicable safety requirements set forth in 10 CFR Parts 20 and 60 [NRC regulations] or their successor provisions."

The State of Nevada commented that the use of such non-specific and overly subjective guidelines is in direct violation of the requirements in the Nuclear Waste Policy Act. In addition, the EPA standards referenced in the proposed revisions have not yet been developed, so there is no way to know if those standards will provide for adequate specificity to assess repository performance. Factors such as transportation, population, conflicts with atomic energy defense activities, conflicts with the National Parks and related systems, and other important factors will not be covered by the EPA standards or NRC regulations in any event.

The State's Attorney General, in separate comments, contended that proposed revisions reflect DOE's unstated determination that Yucca Mountain cannot be found suitable for development as a repository under the existing objective guidelines. As a consequence, DOE appears to be attempting to change the measures by which the site is to be judged and, in the process, modify the Nuclear Waste Policy Act by regulation.

It is unclear how - or if - DOE will proceed with the guidelines revision process. It is possible that the Department could wait and see what develops on the legislative front, since the new Senate bill (S 104) has no requirement for the development or use of siting guidelines at all. However, in the absence of legislation, the State believes that DOE will not be able to qualify Yucca Mountain under the existing set of guidelines.

Funding for State and Local Government Oversight Programs

The prospects for renewed funding for State and local oversight programs remains uncertain. No funds have been forthcoming since October, 1995, and the FY 1997 Energy and Water Development Appropriations Act prohibited DOE from providing oversight funds to the State and local governments. The State of Nevada's oversight program is down to a bare bones staff, and contract research and other activities have been substantially reduced. Carl Johnson, the Agency's Technical Division Administrator who has been with this Office since 1983, retired from State service on February 28^th. The Agency is in the process of securing a replacement for the position, but efforts are being hampered by the persistent funding uncertainties.

All of the affected counties' oversight programs, except for Clark and Nye counties in Nevada, have been disbanded for lack of funds. Inyo County in eastern California has continued to operate a one-person office, using a staff member on a part time basis.

Litigation filed by the Nevada Attorney General in September, 1996 seeking to force DOE to release Fiscal Year 1996 funds that were withheld without statutory authority is still moving slowly through the Ninth U.S. Circuit Court of Appeals in San Francisco. Nevada contends that, since Congress did not prohibit DOE from providing oversight funds in FY 1996 and did not change the provisions of the Nuclear Waste Policy Act requiring such assistance, DOE acted illegally in withholding the funds.

DOE's attorneys in February filed a procedural motion, amounting to a delaying tactic, asking the court to remand the administrative record back to DOE so additional information could be added. In April, the Court granted DOE's motion gave DOE another 30 days to add to its formal record. The State of Nevada will then be given time to provide a response to DOE's enhancements. It is expected that oral arguments will not begin before late summer or early fall, with a decision still far off - perhaps late 1997.

For the coming federal fiscal year (FY 1998 - beginning 10/1/97), prospects appear somewhat more promising. The chief architects of the FY 1997 provision to prohibit State and local oversight funding, Congressmen Myers and Bevell, are no longer in the House of Representatives, and in the Senate, long-time nemesis J. Bennett Johnston, has retired. The House Appropriation Subcommittee on Energy and Environment held its first hearing on DOE's FY 1998 high-level waste program budget on March 11^th, and no objections were raised to renewing oversight funds for Nevada and the affected counties. DOE has budgeted the funds and is supporting (at least publically) the need for such oversight.

Socioeconomic and Transportation Activities

As with all of the Agency's research, socioeconomic and transportation studies continue to be limited to small tasks in clearly defined, high-priority areas. In the socioeconomic program, we are continuing to provide a small amount of funds for the health effects scoping study being implemented by Dr. Marie Boutté of the University of Nevada Reno. This includes continued work on development of a study framework, a limited amount of fieldwork in a pilot community, and participation in the Hanford (Washington) health effects study as an inexpensive way of obtaining information from an ongoing and effective research effort.

The Agency is also conducting a small study, through the Decision Research contract, to assess potential costs to State agencies in the event that spent fuel and high-level waste shipments to an interim storage facility in Nevada begin by the year 2000. This effort, which is being implemented as a collaborative effort by Alvin Mushkatel (Arizona State University) and Steve Campbell (Planning Information Corporation), seeks to update cost information initially collected for four of the most affected State agencies back in the 1988 - 1992 time frame. It should be completed by June or July, 1997.

Another cost assessment project is also being undertaken as a joint activity with the Agency's Technical Division to evaluate the adequacy of DOE's total system life cycle cost assessment that is being completed as part of the viability assessment. This task will involve applying data and information systems developed by PIC as part of the Project Description Scenario System work over the past 10 years, together with data from the Agency's engineering and on-site monitoring activities, to determine the adequacy and accuracy of DOE's cost estimates. The work will also update the socioeconomic study's project description model for use in future impact assessments.

Transportation work has been limited to providing input, in the form of radiation exposure scenarios from transportation operation and accidents, for the health effects program and to updating information on transportation system characteristics and risks. In addition, the Agency's Transportation Advisor, in conjunction with a UNLV graduate student, is in the process of finalizing a two-volume report on terrorism risk and terrorism consideration with regard to spent fuel and high-level waste transportation. This task has been in the works for some time and has been delayed due to the press of other business, including the Agency-imposed requirements for Halstead to prepare and make presentations on key transportation issues to the Nuclear Waste Technical Review Board, the Nevada Commission on Nuclear Projects, and a number of local governments and regional forums.

The Agency's Biannual Report on Oversight of DOE Activities

In February, the Agency completed work an a major report that summarizes findings from all of the research conducted through 1996. The report contains an update on the federal program, incorporating developments related to both congressional actions and DOE's revised program plan. It seeks to present the Agency's oversight findings (technical, socioeconomic, transportation, and environmental) in a way that anticipates future federal program directions and focuses oversight findings so as to identify priority areas for future work.

The report is titled, "State of Nevada Oversight of the U.S. Department of Energy's High-Level Radioactive Waste Program," and was formally released in March, 1997. A limited number of copies are available from the Agency. A summary of the key findings contained in the report is available on the Agency's web page (Summary of Yucca Mountain Oversight and Impact Assessment Findings).

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