Update on Nuclear Waste Program Developments

As of November, 1996

During the past few months, there have been several significant developments in the federal high-level radioactive waste program and the Yucca Mountain project. The purpose of this update is to provide a brief summary of some issues that are of importance to the State, affected local governments, Indian tribes, and the citizens of Nevada in general.


Contents

Legislation Changes in DOE's Program Plan for Yucca Mountain
FY 1997 Appropriations Decision by DOE Not to Appeal Court Ruling on Utilities' Law Suit
Status of the State and Affected Local Government Oversight Funding Brief Update on Nevada's Yucca Mountain Studies




Legislation

Legislation being advocated aggressively by the nuclear power industry to locate an interim facility for spent fuel storage at the Nevada Test Site and to accelerate the schedule for shipping spent fuel to such a facility died when Congress adjourned the first week of October. The Senate version of the legislation (S1936) was passed by a vote 63 to 37 after the Nevada delegation staged a series of filibusters and delaying tactics and gained enough support to ensure that a promised presidential veto would be sustained. Despite strong pressure from industry lobbyists, the House leadership declined to bring the legislation to the floor for a vote, fearing (1) that it could harm Republican members politically in districts located along transportation routes and (2) that spending time and effort on legislation that was sure to be vetoed was counter-productive given the press of other business.

The failure to get legislation enacted was a major setback for the nuclear power industry and its lobbying effort. The industry spent millions on advertising campaigns and other activities aimed at pressuring senators and congressmen/women to support legislation that would designate an interim storage site in Nevada and mandate acceptance of spent fuel at the site by 1999. The Clinton Administration took the position that such legislation was unnecessary because DOE is proposing to reach a decision about the "viability" of Yucca Mountain as a permanent repository by late 1998, and any decision about whether an interim site is needed and, if so, where it should be located, should wait until some determination has been made about Yucca Mountain. In addition, the President objected very strongly to provisions in the industry legislation that (1)would have legislated radiation safety standards for Yucca Mountain and the interim storage facility that were significantly less stringent than for other nuclear facilities and (2) would pe-empt state and federal health, safety, and environmental laws and regulations.

It is expected that industry supporters will re-introduce legislation early in the next session. However, the general consensus, at least for the present, is that there may be less of an appetite in the new Congress for tackling this issue right away. One likely scenario is that the Congress will tacitly go along with the Administration position and wait until 1998 (after the Yucca Mountain decision) before trying again to rewrite the law to provide for interim storage and change environmental/health and safety requirements. The nuclear industry expended a tremendous amount of capital (monetary and political) in a losing cause this past session, and it may be difficult to mount the kind of effort needed to resurrect the legislation in the next 12 - 18 months.

The situation may buy time for Nevada and other interested states to push for a thorough reassessment of current federal nuclear waste policy and the existing high-level waste program. Whether or not there is enough support to finally empanel a blue ribbon commission to undertake an objective review of the current state of affairs is uncertain, but the window for impacting national policy in a positive way appears to have opened, if only by a crack.

FY 1997 Appropriations

While legislation to revise the Nuclear Waste Policy Act failed, the Department of Energy fared somewhat better than last year in terms of funding for the current high-level waste. The FY 1997 Energy and Water Development Appropriations Act gives DOE $400 million for the HLW program ($182 million from the Nuclear Waste Fund and $200 million from Defense Appropriations), up from $315 last year. (In FY '96, DOE was appropriated $400 million, but $85 million of that was embargoed pending enactment of interim storage legislation, which never happened.) However, language in the report of the House/Senate Appropriations Conference Committee which acted on the final bill prohibits DOE from providing any funds for state or local government oversight programs.

During FY 1997, DOE expects to be able to complete the initial 5 mile loop of the exploratory tunnel at Yucca Mountain and restart the Environmental Impact Statement (EIS) process that was suspended last year. Very little money has been budgeted for transportation analyses and activities or for any surface-based scientific/technical studies. DOE's principal focus during the next 2 - 3 years will be on completing the tunnel and portal facilities, moving ahead with EIS work, and completing the so-called "viability assessment" (see discussion below).

Status of the State and Affected Local Government Oversight Funding

The State's and affected counties' oversight and impact assessment efforts continue to be negatively and significantly affected by DOE's decision not to provide any funds for state or local government activities last year. The State's program has been operating with carry over monies from prior year appropriations and has budgeted these funds to allow for the operation of a 'bare bones' oversight program through June, 1998.

In September, the Nevada Attorney General filed suit in the 9th U.S. Circuit Court of Appeals in San Francisco asking that DOE be directed to release the FY 1996 funds for State and county oversight that were withheld. The AG contends that, since Congress did not change the law requiring the Secretary of Energy to make grants for state oversight and the FY '96 Appropriations Act did not prohibit such grants, DOE has a statutory obligation to provide those monies. Early indications are that he State has a good chance of prevailing in this action. The AG is also considering possible action with respect to FY 1997 funds, since the language prohibiting the provision of monies to the State and local governments applied only to the Nuclear Waste Fund appropriation, not to the Defense appropriation for DOE's program. Should some or all of these funds become available, the Agency for Nuclear Projects would be able to re-start some of the socioeconomic, transportation, and technical studies that have been put on hold. The Attorney General hopes to have a decision on the FY 1996 money by late winter or early spring.

Changes in DOE's Program Plan for Yucca Mountain

(1) Refocusing the Program Towards a "Viability Assessment"

Last Spring, DOE announced a change in the focus of Yucca Mountain program that would concentrate reduced resources on the development, by late 1998, of a "viability assessment." Since there is no statutory provision or requirement for such an assessment, and no legal definition, DOE developed and released a revised "Civilian Radioactive Waste Management Plan" that specifies the elements of such an assessment, along with proposed new program schedules and descriptions of related strategies for transportation, National Environmental Policy Act compliance, and NRC licensing.

The viability assessment as defined by DOE would involve 4 elements: (1) the proposed design for the repository and the waste emplacement package; (2) a plan for developing and submitting a license application to the Nuclear Regulatory Commission, (3) an "updated", but not final, total system performance assessment, and (4) estimates of the total costs and schedule for the repository. The purpose of the viability assessment will be to provide a basis for deciding, by the end of 1998, whether or not it is feasible - or viable - to commit the necessary resources and effort to develop Yucca Mountain as a repository. The assessment will not constitute a determination of site suitability or even a recommendation for Yucca Mountain as a repository.

However, DOE, in its revised program plan, has positioned the viability assessment as the critical decision point that will likely drive the other decisions. The strategy to pursue "viability" rather than the statutorily-defined concept of "suitability" allows DOE to meet a much lower standard of proof to get to essentially the same decision - a follow-on recommendation to the President and Congress to go forward with Yucca Mountain. It should be noted that the legislation that died in Congress earlier this month would have statutorily replaced the more stringent requirements for finding Yucca Mountain safe and suitable with the requirement for a "viability assessment" identical to what DOE is proposing.

(2) DOE's Proposal to Privatize the HLW Transportation System

Another development that has significant implications for Nevada and all other states and communities with potential spent fuel and HLW shipping routes is the recent initiative to turn over the entire waste acceptance, at-reactor storage, and transportation system to a system of regional contractors who would be responsible for accepting spent fuel at reactor sites, providing necessary handling and related equipment, providing for temporary storage of the fuel while awaiting shipment or while in transit, and for all other operations associated with shipping the fuel from individual reactors or storage facilities to either Yucca Mountain or a federal interim storage location (should one be authorized).

Nevada and other western states commented expensively on the proposed initiative and voiced strong concerns that the proposal would make it difficult, if not impossible, for states to plan adequately for waste shipments. By using as many as 4 regional super-contractors, DOE would be creating a situation where there could be 4 different mode and route systems that states like Nevada - and others in the middle and end of the waste "funnel" - would have to contend with and 4 different entities to deal with on almost every aspect of spent fuel transport. We also pointed out that the initiative represented a major - and potentially damaging - departure from over 15 years of incremental progress DOE has made working with states and tribes in planning for the safe transportation of spent nuclear fuel. Nevada's comments concluded that for DOE to simply discard a centralized and participatory planning process for one that relies solely on arbitrary and market-driven contractual decision-making is inappropriate and unacceptable.

Combined with the refocusing of the Yucca Mountain program away from definitively determining site suitability to merely assessing program viability, the privatization initiative can be seen as part of a disturbing trend away from a safety-based approach and towards one that seeks to minimize troublesome public involvement, cost, and accountability.

Decision by DOE Not to Appeal Court Ruling on Utilities' Law Suit

In 1995, a number of utility companies and states with nuclear power plants asserted that, under the Nuclear Waste Policy Act of 1982, as amended, the DOE has an obligation to begin accepting spent nuclear fuel for disposal, beginning no later than January 31, 1998. DOE subsequently concluded in a published notice that it did not have "a clear legal obligation under the [NWPA] to accept [SNF] absent an operational repository or other facility constructed under the [NWPA]."

The utilities and states then petitioned the U.S. Court of Appeals, District of Columbia Circuit, for review of this DOE Order, and the case (No. 95-1279, consolidated with 95-1321 and 95-1463) was decided on July 23, 1996. DOE announced in October, 1996 that it would not appeal the decision, though some observers believed there was ample basis to have done so.

In rendering its ruling, the Court found that DOE does have an obligation with respect to the 1998 date. The specific finding is as follows:

"In conclusion, we hold that the petitioners' reading of the statute comports with the plain language of the measure. In contrast, the agency's interpretation renders the phrase "not later than January 31, 1998" superfluous. Thus, we hold that section 302(a)(5)(B) creates an obligation in DOE, reciprocal to the utilities' obligation to pay, to start disposing of the SNF no later than January, 31, 1998. The decision of the Secretary is vacated, and the case is remanded for further proceedings consistent with this opinion."

The cited provision of section 302 states: "[I]n return for payment of fees established by this section, the Secretary, beginning not later than January 31, 1998, will dispose of high-level radioactive waste or spent nuclear fuel involved..."

The Court also stated: "It is premature to determine the appropriate remedy, particularly as to the interaction between Article XI and Article XVI of the Standard Contracts, as DOE has not yet defaulted upon either its statutory or contractual obligation. We therefore will remand this matter for further proceedings consistent with this opinion." The two Articles cited speak to remedies under the law and procedures for resolving disputes. In this context, the Court did not speak of the Article IX procedures for dealing with unavoidable and avoidable delays in performance under the contract. Unavoidable delays in delivery, acceptance, or transport would result in schedule adjustment. In the more likely case that the situation is considered an avoidable delay, the charges [fee] and schedules of the contract would be "equitably adjusted" to reflect any estimated additional cost to the party not responsible for, or contributing to the delay.

Discussion:

Many people, including media reporters, have said that this court decision orders DOE to develop and begin transporting waste to an interim storage facility by January 31, 1998. This is an incorrect interpretation.

First, the Court, itself said that determining remedy, of which an interim storage facility could be one under certain circumstances, is premature because there has yet to be a default by DOE.

Second, under current circumstances, only Congress, as was attempted unsuccessfully in its last session, can authorize future development and operation of an interim storage facility that could attempt to meet the 1998 operational date (although it would most likely be late by a few years, at best). Since the now terminated Office of the Nuclear Waste Negotiator failed to find and get Congressional approval of a volunteer Monitored Retrievable Storage (MRS) site, the only currently authorized option for centralized interim storage is one MRS, sited and developed by DOE according to the elaborate siting and approval process of the NWPA, as amended. DOE has chosen not to pursue this activity, and Congress has appropriated no funds to do so.

And third, Congress has the ability to authorize in law, with the President's approval, a wide range of options for dealing with the utilities' spent fuel. These can be as creative as political acceptability permits. On the one hand, the Congress could revise the fee requirement to provide funds for the utilities to store their spent fuel in any manner permitted under NRC license requirements. And, at the other extreme, the Congress could go so far as to nullify, by law, the obligation the Court believes to be contained in the Nuclear Waste Policy Act, as amended.

In delineating DOE's obligation, the court went out of its way to define the term "dispose of" very broadly, using Webster's Dictionary as the guideline. Under that definition, DOE's obligation is to "place, distribute or arrange in an orderly way"; "to transfer to the control of another"; "to get rid of"; or "to deal with conclusively."

Under this broader interpretation, the court ruling permits DOE to fulfill its obligation under the Nuclear Waste Policy Act by providing for dry storage of the spent fuel at the reactor sites, thereby eliminating the necessity to transport the waste to Nevada or elsewhere for storage. In the past, DOE has argued that it could not use federal Nuclear Waste Funds for at-reactor storage, but the court's finding suggests that such storage is an acceptable way for DOE to "dispose of" the waste and satisfy its obligation under law.

The nuclear industry's public relations people have been quick to "spin" the court ruling to imply that DOE's obligation is to begin removing waste from power plants by 1998, preferably to a "temporary" facility in Nevada. Industry spokespeople conveniently avoid any reference to the fact that the court has apparently given DOE broad discretion in how it carries our its 1998 responsibilities.

In reality, absent Congressional action, the Court will likely be petitioned for remedy when DOE is out of compliance and a default is declared in 1998. And, under current law, that remedy cannot include an interim storage facility at the Nevada Test Site.

Brief Update on Nevada's Yucca Mountain Studies

Funding reductions have drastically curtailed Nevada's ability to carry out technical oversight and socioeconomic/transportation impact studies. Since January, the Agency for Nuclear Projects has been cutting back in all areas of research, concentrating on wrapping up technical studies and on monitoring tunnel and site activities. After the first of the year, the Agency's technical contractors will have completed summary reports on research in the areas of Yucca Mountain hydrology, volcanism, coupled processes (the "Szymanski Theory"), seismology and faulting, geochemistry, and mineral resource potential.

The State's research is finding that Yucca Mountain is extremely complex geologically; that is a highly fractured and faulted structure with very rapid water pathways (e.g. water moves from the surface through the mountain to the water table in less than 50 years); that the area has experienced episodic upwelling of geothermal water and steam that could recur during the life of a repository; and that the region is seismically active with the potential for future volcanic activity either in the form of magma changes in the subsurface or surface eruptions. It should be noted that the State's findings are considerably different from those DOE has released to date.

The Agency's socioeconomic and transportation studies were cut back even more than the technical research during the past year. For the most part, we focused on updating transportation databases and refining the capability to analyze impacts of shipping scenarios under real world conditions; on developing the framework for a second summary report on potential impacts and their implications for Nevada; on scoping an approach for evaluating terrorism risks associated with spent fuel transportation; and on continuing planning of a health effects monitoring program for potentially vulnerable communities in Nevada.

(1) Transportation Impact Analyses

Planning Information Corporation (PIC) was tasked to update the transportation database to incorporate data on current capabilities and conditions at reactor locations and within the transportation operational system that would influence shipments in the event that spent fuel was required to be transported from reactors to an interim storage facility beginning in 1999 (as per legislation that was before Congress). The report built on past work by the State of Nevada and DOE that attempted to clarify how nuclear waste shipments might impact states and communities around the country. The analysis found that the number of rail and highway shipments under such a scenario would be considerably higher than estimates previously published by the State of Nevada for several reasons. First, the new analysis considered commercial spent fuel currently stored away from the reactors where it was generated. Second, shipments of vitrified high-level waste from four DOE facilities were included in the assessment. Third, the report recognized that DOE's previous commitment to maximum use of rail transport is not part of DOE's current proposal for privatizing the nuclear waste transportation system.

Using information developed by E. J. Bentz and Associates and Agency Transportation Advisor Bob Halstead, PIC was able to incorporate information about "current capabilities" with regard to reactor sites, equipment (e.g. the casks that would be used to transport spent fuel and high-level waste), and the existing transportation system, and use this information for projections about shipment types, numbers, and potential routes. More information on this report can be found in the Transportation section of this web page.

(2) Nevada Summary Report

Prior to January, 1996, the Agency planned to have Decision Research and the study team continue work on identifying and summarizing potential impacts and vulnerabilities in Nevada with respect to the federal program. The idea was to incorporate possible effects of interim storage and the accelerated timetable and changed circumstances for waste shipments resulting from proposed legislation. This work reached the stage of outlining the framework and topics for a possible report, but was suspended due to funding reductions. A sub-group of the study team put together the outline and topic summaries, which we hope to use to re-start the work in January and prepare a report by Spring, 1997, funds permitting.

(3) Scoping for an Assessment of Terrorism Considerations in HLW Transportation

Last year, the Agency began work on a project that was assess the applicability of various national and international databases on terrorism activities to the assessment of HLW terrorism risks. That effort has evolved into a fairly ambitious report on terrorism risk, transportation system vulnerability, and what could be done to further evaluate the issue.

We hope to have this draft report out for peer review in the next month, together with a companion piece (1) on the implications of terrorist methods and capabilities for DOE's Yucca Mountain EIS and (2) deficiencies in current NRC regulations that Halstead is preparing. A final report should be available sometime in the spring of 1997.

(4) Health Effects Monitoring

The Agency has continued to work with Dr. Marie Boutté, University of Nevada Reno, and a group of affected State agencies to develop a framework for a health effects monitoring program for potentially vulnerable communities in Nevada. This effort resulted in two draft reports being completed over the past couple of months. Dr. Boutté conducted a preliminary review of possible models for health monitoring approaches and put together a preliminary framework for a community health monitoring program. This report is to be reviewed by the State agencies working group in early December, at which time we will assess how to proceed from here.

In addition, Dr. Molly Dufort, also with UNR, completed a medical ethnography report for the pilot Native American community, the Moapa Band of Paiutes, in eastern Clark County (located along the principal highway and rail routes to Yucca Mountain). This report completes the baseline work for the two pilot areas identified last year (the City of Caliente in Lincoln County and Moapa) .

(5) The Agency's Web Page

The Agency for Nuclear Project's INTERNET web page, which can be visited at http://www.state.nv.us/nucwaste/, features up-to-date information on Nevada's oversight program, scientific and technical issues related to the U.S. Department of Energy's site characterization work at Yucca Mountain, state-of-the-art analyses and graphics dealing with the transportation of spent nuclear fuel and highly radioactive wastes, Agency and State comments on environmental and other documents related to nuclear waste matters, and other important issues.

One of the more innovative features on the page is a complete presentation of likely rail and highway shipping routes for the transport of spent nuclear fuel rods and high-level waste to either a repository at Yucca Mountain or some form of interim storage at the Nevada Test Site. The maps are contained in a series of linked graphics that can be accessed either for the nation as a whole or for individual states.

The home page will continue to be expanded by adding fact sheets, newsletters, and bulletins, as well technical reports, comment documents, and other materials related to Yucca Mountain and the high-level nuclear waste program. The site also contains links to other web pages containing information on nuclear-related topics, including the Western Interstate Energy Board, the Western Governors' Association, DOE, the Nuclear Regulatory Commission, the Nuclear Information Resource Service (NIRS), among others.

The nuclear waste page is part of the State of Nevada's INTERNET site operated by the State Department of Information Services.

We are currently exploring the possibility of hosting a meeting of affected local governments and tribes sometime after the first of the year. The purpose of the meeting would be to provide more detailed updates on the HLW program and obtain input for Agency oversight/impact assessment activities during 1997. We are still trying to work out the logistics and funding for such a meeting.

If you have questions about any of the Nevada studies or the status of the nuclear waste program in general, please let me know. You can reach me by phone or fax at the numbers listed in the letterhead, or you can communicate with me via e-mail at jstrolin@govmail.state.nv.us .


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