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.
|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|
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).
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.
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.
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
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
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
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 firstname.lastname@example.org .