In 1982, Congress established a political compromise with the states in which the Department of Energy was then exploring the potential for deep geological sites for the placement of high-level nuclear waste repositories, a compromise now long since dashed by inconsistent administrative actions of the Department and the political power and self interest of the nuclear power industry. The compromise resulting in the enactment of the Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101 et seq., required the Department to study sites in various geologies ("site characterization," 42 U.S.C. 10133), measure what DOE scientists found against pre-established minimum physical conditions ("siting guidelines," 42 U.S.C. 10132(a)) and compare the waste containment competence of each site on the basis of the respective site's physical attributes.
In 1984, the Department of Energy began what was to become a pattern of compromises to the site characterization process envisioned by the Congress in 10133(b) by the enactment of siting guidelines which contained subjective evaluation criteria and subjective minimum conditions (49 Fed. Reg. 5670, December 6, 1984). Nearly every state which had a candidate site challenged the guidelines in court cases which were eventually consolidated in the Ninth Circuit Court of Appeals.
By 1987, the Department had so politicized the evaluation process, thereby offending politically powerful states, that a frustrated Congress abandoned site characterization at other potentially competent sites. Congress, however, left intact the requirement in 42 U.S.C. 10132(a) that the Department measure what it learned about Yucca Mountain against objective, preestablished minimum physical conditions.
Now the Department wants to make the comparative process even more subjective by removing the requirement that the physical attributes of Yucca Mountain be measured against the present guidelines. The Department's proposed new approach would establish nothing more than a subjective prediction that Yucca Mountain will work in terms of total system performance. This approach abandons the statute, further abandons the political compromise, and most importantly, abandons the policy expectation that minimum physical attributes will exist in any deep geological disposal site.
Nevada sought the Ninth Circuit Court's assistance in 1985 to direct the Department to enact objective siting guidelines. In 1991, the Ninth Circuit found the issue premature, determining that the issue must be addressed when the Department uses the guidelines, not when it drafts them. Watkins II, supra. In 1990, Nevada again sought the Court's assistance in requiring the DOE to institute a "methodology, some formalized system of data collection, evaluation and decision making, to determine early and throughout the [site characterization] process, whether or not any Disqualifying Conditions exist, and if so, for making the required decision to terminate work at the site whenever such a condition is found." Watkins II, supra, at 1561. The Court held that although "the guidelines developed by the Secretary pursuant to section 10132(a), are to be utilized to determine the suitability of Yucca Mountain for the location of the repository," (Id. at 1562), "[b]ecause the Secretary is not required to promulgate regulations governing the timing of a disqualification decision, judicial review of his decision not to do so is not available under section 10139(a)" (Id. at 1563), and "the timing of a disqualification decision is committed to the Secretary's discretion by law" (Id. at 1564).
Watkins I and Watkins II, at a minimum, stand for the proposition that the guidelines which were promulgated by the DOE in 1984 and upon which the Yucca Mountain site was selected for characterization were to be used to determine the suitability of the site, and at the time of a suitability determination the validity of the guidelines would be subject to review by the Ninth Circuit or District of Columbia Courts of Appeals. The DOE's present intention to substitute the proposed new guidelines for the guidelines which have governed the site characterization process for the past 12 years is an admission either that the guidelines will not satisfy such a review or that the site cannot satisfy the guidelines. In either case, the process self destructs. It is improper for the DOE to obfuscate the deficiencies of either the guidelines or the site by substituting a new set of guidelines which is based upon the subjective opinion by unspecified persons that the site may perform satisfactorily, a process which has no support in law. My office will have no choice but to challenge this improvident decision, if pursued, in court.
The proposed rule does not comply with the clear direction of Section 112(a) of the Nuclear Waste Policy Act which clearly requires that the siting guidelines specify factors that qualify or disqualify any site from development as a repository.
"Such guidelines shall specify detailed geologic considerations that shall be primary criteria for the selection of sites. . . . Such guidelines shall specify factors that qualify or disqualify any site from development as a repository, including factors pertaining to the location of valuable natural resources, hydrology, geophysics, seismic activity, and 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 Wilderness Preservation System, or National Forest Lands. Such guidelines shall take into consideration the proximity to sites where high-level-radioactive waste and spent nuclear fuel is generated or temporarily stored and the transportation and safety factors involved in moving such waste to a repository. . . Such guidelines also shall require the Secretary to consider the cost and impact of transporting to the repository site the solidified high-level radioactive waste and spent fuel to be disposed of in the repository and the advantages of regional distribution in the siting of repositories.
Under the DOE's proposed amendment to the siting guidelines "Discrete, independent findings on individual technical factors would not be required." 61 Fed. Reg. 66160. But independent findings on individual technical factors is required by Section 112 (a). Those technical factors which should make up the guidelines must be "use[d] . . . in considering candidate sites for recommendation [to the President for development as a repository] under subsection (b) of this section." The Ninth Circuit Court of Appeals has ruled that "the site recommendation guidelines, issued pursuant to section 112(a) of the NWPA, 42 U.S.C.§10132(a) (1988) require the Secretary to address site ownership and jurisdiction issues as well as transportation issues in any recommendation he [she] makes to develop Yucca Mountain as a repository site. Watkins III at 1086, note 9. Predictably, in a case which my office may be compelled to bring, the Ninth Circuit Court of Appeals will likely hold that the siting guidelines must also require that the Secretary address the other independent factors listed in section 10132(a) in advance of recommending Yucca Mountain for development as a repository.
In its "Description of Proposed Action" the Department states that "the DOE has now determined that a system performance assessment approach provides the most meaningful method of evaluating whether the Yucca Mountain site is suitable for development of a repository. The performance assessments (4-6) conducted to date have consistently driven the DOE to focus its evaluation of the Yucca Mountain site on those aspects most important to predicting how the overall system will perform in isolating and containing waste." 61 Fed. Reg. 66160.
Overall system performance is not, however, the determination required by section 112(a). The Department is not permitted to "focus its evaluation," but rather to determine how Yucca Mountain stacks up against all the statutorily required technical factors.
Although Congress's 1987 Amendments to the Nuclear Waste Policy Act "eliminat[ed] the [Department's] authority to consider other potential sites" for development, or consider them as alternative choices in the Department's final environmental impact statement, 42 U.S.C. 10134(f)(3); (Watkins III, supra), Congress did not eliminate the requirement that the Department compare what it learns about Yucca Mountain against what it knows about other sites as a means of evaluating the competency of Yucca Mountain as a repository site. Had Congress wanted to eliminate that requirement, it could have repealed or amended section 112(a). Congress has not.
The Department relies on language within the Conference Report on the Fiscal Year 1996 Energy and Water Development Appropriations Act, H.R. Rep. No. 293, 104th Cong., 1st Sess, 68 (1995) and the Report on the Energy and Water Development Appropriations Act, 1997, H. R. Rep. No. 782, 104th Cong., 2d Sess. 82 (1996) for the suggestion that Congress is prepared to accept a subjective "performance assessment" approach in place of an objective technical factor approach to site suitability. It is an elementary principle of statutory interpretation that construing courts need not consider the legislative intent contained in committee reports or individual expressions of members where an unambiguous statute provides clear direction. The clear direction of section 10132(a) obviously prevails over later observations about its meaning, notwithstanding the fact that individual, pro-nuclear utility oriented members of the Congress, Congressional committees or the Department of Energy would impose a different interpretation. The Department misconstrues those statements in any event. The direction of the Conference Report on the Fiscal Year 1996 Energy and Water Development Appropriations Act, H.R. Rep. No. 293, 104th Cong., 1st Sess, 68 (1995), that the Department "refocus the repository program on completing the core scientific activities at Yucca Mountain" and "collect the scientific information needed to determine the suitability of the Yucca Mountain site," 61 Fed. Reg. 66160, better suggests a Congressional admonition to comply with the technical factor approach mandated by section 10132(a), rather than to propose a subterfuge for avoiding it. My office will be forced to challenge the Department's interpretation.
Congress left section 10132(a) intact when it amended the Nuclear Waste Policy Act in 1987, as it did in the several opportunities it has had to amend it since then. Section 10132(a) provides the only authoritative direction to the department. It is entirely clear that the statute prevails and the Secretary should not rely on conflicting statements or erroneous departmental interpretations of less authoritative sources as a pretext to subvert the statute.
The selection of a sound solution to the nation's nuclear waste problems is a process of managing potentially huge risks to the environment and public health. As with the protection of any investment against the risk of loss, the policy alternatives are consolidation of all venture assets into one risk opportunity or spreading venture assets into broad and alternative risk opportunities. We submit that spreading the risk is the better alternative, for it does not portend total failure. Unfortunately, Congress chose the poorer alternative when it consolidated all the Department's efforts at Yucca Mountain in 1987. If Yucca Mountain fails, the United States has no viable alternative for a geologic disposal site.
Once the bad policy choice has been made, however, it becomes imperative to learn the real deficiencies of the chosen single risk opportunity as soon as possible. Evaluation of Yucca Mountain under "specif[ic] factors that qualify or disqualify any site from development as a repository" provides that early warning. The Department's objective should be to provide Congress and the public with the greatest possible information regarding the technical merits of the Yucca Mountain site at the earliest opportunity. The guidelines claim in Watkins I was an effort by Nevada to persuade the DOE to recognize this basic proposition. Unfortunately, the Department did not get the message.
A "performance assessment" which overlooks Yucca Mountain's technical competence and determines merely that the site "allows for" containment and isolation of radioactive waste does not provide an early warning of the deficiencies of the site. Rather, it permits the Department to hide Yucca Mountain's technical deficiencies and shortcomings in an abyss of subjective opinion. Deficiencies involving unreasonable environmental and public health risks will cause severe investment loss when it becomes necessary to confront them. The question is not if, but when.
The Ninth Circuit's decision in Watkins I and Watkins II that assessment of the risk of environmental and public health injury against predetermined technical factors was not required until the Secretary makes a site recommendation and could not be reviewed before then, although technically correct, was bad public policy because it has permitted postponement of the decision to terminate site characterization at Yucca Mountain pursuant to 10134(f) when such termination is warranted by known deficiencies in the site. The abdication of a credible technical assessment through the substitution of a subjective performance assessment for true evaluation against objective technical factors is an even worse public policy decision because it carries with it the pronounced risk that an unsuitable site will be selected for development as a repository. My office will ask the Ninth Circuit Court of Appeals to intervene, if necessary, to see that this does not happen.
The DOE should find little comfort in the Court's decisions in the Watkins cases because the Court did recognize that it would review a circumstance in which the Department failed to promulgate any guidelines. The proposal put forth in the December 16, 1996, Federal Register notice is tantamount to a such a failure.