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:
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
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.
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.
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 15th, 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.
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
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.
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 17th, 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
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.
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 11th, 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.
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
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 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).