<DOC>
[106th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:55151.wais]


 
                  THE NUCLEAR WASTE POLICY ACT OF 1999

=======================================================================

                                HEARINGS

                               before the

                    SUBCOMMITTEE ON ENERGY AND POWER

                                 of the

                         COMMITTEE ON COMMERCE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   on

                                H.R. 45

                               __________

                    FEBRUARY 10, and MARCH 12, 1999

                               __________

                           Serial No. 106-17

                               __________

            Printed for the use of the Committee on Commerce


                      U.S. GOVERNMENT PRINTING OFFICE
55-151 cc                     WASHINGTON : 1999




                            COMMITTEE ON COMMERCE

                     TOM BLILEY, Virginia, Chairman

W.J. ``BILLY'' TAUZIN, Louisiana     JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio               HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida           EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas                    RALPH M. HALL, Texas
FRED UPTON, Michigan                 RICK BOUCHER, Virginia
CLIFF STEARNS, Florida               EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio                FRANK PALLONE, Jr., New Jersey
  Vice Chairman                      SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania     BART GORDON, Tennessee
CHRISTOPHER COX, California          PETER DEUTSCH, Florida
NATHAN DEAL, Georgia                 BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma              ANNA G. ESHOO, California
RICHARD BURR, North Carolina         RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California         BART STUPAK, Michigan
ED WHITFIELD, Kentucky               ELIOT L. ENGEL, New York
GREG GANSKE, Iowa                    THOMAS C. SAWYER, Ohio
CHARLIE NORWOOD, Georgia             ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma              GENE GREEN, Texas
RICK LAZIO, New York                 KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming               TED STRICKLAND, Ohio
JAMES E. ROGAN, California           DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois               THOMAS M. BARRETT, Wisconsin
                                     BILL LUTHER, Minnesota
                                     LOIS CAPPS, California

                   James E. Derderian, Chief of Staff

                   James D. Barnette, General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

                    Subcommittee on Energy and Power

                      JOE BARTON, Texas, Chairman

MICHAEL BILIRAKIS, Florida           RALPH M. HALL, Texas
CLIFF STEARNS, Florida               KAREN McCARTHY, Missouri
  Vice Chairman                      THOMAS C. SAWYER, Ohio
STEVE LARGENT, Oklahoma              EDWARD J. MARKEY, Massachusetts
RICHARD BURR, North Carolina         RICK BOUCHER, Virginia
ED WHITFIELD, Kentucky               FRANK PALLONE, Jr., New Jersey
CHARLIE NORWOOD, Georgia             SHERROD BROWN, Ohio
TOM A. COBURN, Oklahoma              BART GORDON, Tennessee
JAMES E. ROGAN, California           BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois               ALBERT R. WYNN, Maryland
HEATHER WILSON, New Mexico           TED STRICKLAND, Ohio
JOHN B. SHADEGG, Arizona             PETER DEUTSCH, Florida
CHARLES W. ``CHIP'' PICKERING,       RON KLINK, Pennsylvania
Mississippi                          JOHN D. DINGELL, Michigan,
VITO FOSSELLA, New York                (Ex Officio)
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland
TOM BLILEY, Virginia,
  (Ex Officio)

                                  (ii)





                            C O N T E N T S

                               __________
                                                                   Page

Hearings held on:
    February 10, 1999............................................     1
    March 12, 1999...............................................   159
Testimony of:
    Abdoo, Richard A., Chairman and CEO, Wisconsin Electric Power 
      Company....................................................   110
    Barrett, Lake H., Acting Director, Office of Civilian 
      Radioactive Waste Management, Department of Energy.........    49
    Berkley, Hon. Shelley, a Representative in Congress from the 
      State of Nevada............................................    28
    Claybrook, Joan, President, Public Citizen...................   115
    Cohon, Jared L., Chairman, Nuclear Waste Technical Review 
      Board......................................................    55
    Gibbons, Hon. Jim, a Representative in Congress from the 
      State of Nevada............................................    24
    Guinn, Hon. Kenny C., Governor, State of Nevada..............    18
    Jackson, Hon. Shirley Ann, Chairman, Nuclear Regulatory 
      Commission, accompanied by Greta Dicus, Commissioner; Nils 
      Diaz, Commissioner; Edward McGaffigan, Commissioner; and 
      Jeffrey Merrified, Commissioner............................    43
    Joos, David W., President and CEO, Consumers Energy, on 
      behalf of the Nuclear Energy Institute.....................   104
    Koppendrayer, Hon. LeRoy, Commissioner, Minnesota Public 
      Utilities Commission, on behalf of the Nuclear Waste 
      Strategy Coalition.........................................    94
    Perciasepe, Robert, Assistant Administrator for Air and 
      Radiation, Environmental Protection Agency.................    58
    Phillips, Hon. Kevin, Mayor, City of Caliente, Nevada........    33
    Richardson, Hon. Bill, Secretary, Department of Energy.......   176
    Schiffer, Stuart E., Deputy Assistant Attorney General, 
      Commercial Litigation Branch, Civil Division, Department of 
      Justice....................................................    65
    Strand, Hon. John G., Chairman, Michigan Public Service 
      Commission, on behalf of the National Association of 
      Regulatory Utility Commissioners...........................    99
Material submitted for the record by:
    Abdoo, Richard A., Chairman and CEO, Wisconsin Electric Power 
      Company:
        Letter dated March 1, 1999, enclosing response for the 
          record.................................................   137
        Letter dated March 15, 1999, enclosing response for the 
          record.................................................   151
    Angell, John C., Assistant Secretary, Congressional and 
      Governmental Affairs, Department of Energy:
        Letter dated April 9, 1999, enclosing responses for the 
          record, of Lake H. Barrett.............................   223
        Letter dated June 10, 1999, enclosing responses for the 
          record, of Hon. Bill Richardson........................   242
    Berkley, Hon. Shelley, prepared statement of.................   214
    Cohon, Jared L., Chairman, Nuclear Waste Technical Review 
      Board, letter dated March 5, 1999, enclosing response for 
      the record.................................................   135
    Colvin, Joe F., President and Chief Executive Officer, 
      Nuclear Energy Institute, letter dated March 9, 1999, to 
      Hon. John D. Dingell, enclosing response for the record....   138
    Department of Justice, response to question of Hon. John D. 
      Dingell....................................................   240
    Guinn, Hon. Kenny C., Governor, State of Nevada, letter dated 
      March 12, 1999, enclosing response for the record..........   152

                                 (iii)

Material submitted for the record by--Continued
    Hilton, Cynthia, Executive Director, Association of Waste 
      Hazardous Materials Transporters, prepared statement of....   133
    Jackson, Hon. Shirley Ann, Chairman, Nuclear Regulatory 
      Commission:
        Letter dated March 11, 1999, to Hon. Joe Barton, 
          enclosing response for the record......................   141
        Letter dated March 18, 1999, to Hon. Joe Barton, 
          enclosing response for the record......................   148
    Joos, David W., President and CEO, Consumers Energy, response 
      to questions of Congressman Barton.........................   223
    Koppendrayer, Hon. LeRoy, Commissioner, Minnesota Public 
      Utilities Commission, letter dated March 4, 1999, to Hon. 
      Joe Barton, enclosing response for the record..............   139
    Perciasepe, Robert, Assistant Administrator for Air and 
      Radiation, Environmental Protection Agency:
        Letter dated March 11, 1999, enclosing response for the 
          record.................................................   152
        Letter dated March 25, 1999, enclosing response for the 
          record.................................................   154
    Schiffer, Stuart E., Deputy Assistant Attorney General, 
      Commercial Litigation Branch, Civil Division, Department of 
      Justice, responses to questions of Hon. Joe Barton.........   240
    Strand, Hon. John G., Chairman, Michigan Public Service 
      Commission, on behalf of the National Association of 
      Regulatory Utility Commissioners, letter dated March 5, 
      1999, enclosing response for the record....................   136

                                  (iv)

  


                  THE NUCLEAR WASTE POLICY ACT OF 1999

                              ----------                              


                      WEDNESDAY, FEBRUARY 10, 1999

                  House of Representatives,
                             Committee on Commerce,
                          Subcommittee on Energy and Power,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:30 a.m., in 
room 2322, Rayburn House Office Building, Hon. Joe Barton 
(chairman) presiding.
    Members present: Representatives Barton, Stearns, Largent, 
Norwood, Rogan, Shimkus, Wilson, Shadegg, Pickering, Ehrlich, 
Bliley (ex officio), Hall, McCarthy, Sawyer, Markey, Pallone, 
Gordon, Wynn, Strickland and Dingell (ex officio).
    Also present: Representative Upton.
    Staff present: Joe Kelliher, majority counsel; Kevin Cook, 
majority professional staff member; and Sue Sheridan, minority 
counsel.
    Mr. Barton. The Subcommittee on Energy and Power hearing on 
H.R. 45, the Nuclear Waste Policy Act 1999, will come to order. 
Let the record show there are two members present so that the 
hearing can begin.
    Today the Subcommittee on Energy and Power will hear 
testimony on H.R. 45, the Nuclear Waste Policy Act of 1999. 
This is the third Congress in a row to consider nuclear waste 
legislation. The legislative goals remain the same. First, 
accelerate acceptance in recognition of Federal court 
decisions. They found the Department had an unconditional 
obligation to begin acceptance of commercial spent nuclear fuel 
more than a year ago. Second, strengthen the repository by 
assuring adequate funding for site characterization, 
construction, and operation. Third, protect the consumers by 
halting the diversion of consumer fees to fund other Federal 
programs. It is my earnest hope that this Congress will be able 
to enact legislation that achieves these three goals.
    Three years ago Federal courts found that the Department 
has an unconditional obligation to begin acceptance of 
commercial spent nuclear fuel on January 31, 1998. That date 
has come and gone, and acceptance has not begun.
    The Department has been slow to realize the significance of 
that court decision, a decision it accepted since it did not 
seek a rehearing or appeal the decision to the Supreme Court.
    Normally when a Federal agency is found to violate Federal 
law, that agency acts to halt the violation. Unfortunately the 
Department of Energy has taken no action to accelerate 
acceptance and put itself into compliance with the Nuclear 
Waste Policy Act of 1992. That inaction displays indifference 
both to its legal obligations and to the cost of expanding 
onsite storage that result from its failure to act.
    The administration has opposed the legislation considered 
by Congress largely on the grounds the bills made decisions on 
interim storage siting. The administration opposed legislation 
considered by the Senate in 1996 because, ``making an interim 
storage siting decision before a repository viability 
assessment would jeopardize the long-term strategy for the 
ultimate disposal of high-level nuclear waste and undermine 
public confidence in the near-term transportation and storage 
activities''.
    Last December, the Department completed a viability 
assessment that concluded, ``the Yucca Mountain remains a 
promising site for a geologic repository, and work should 
proceed to support a decision in 2001 on whether to the 
recommend the site to the President for development as a 
repository.''
    In the past the Department said interim storage siting 
should only take place after a viability assessment. Now that 
we have the benefit of the viability assessment, we need the 
Department's views on interim storage siting today.
    One reason the administration opposed interim storage 
siting in the past because it believed doing so would undermine 
public confidence in the nuclear waste program. In my view and 
in the view of many others of this subcommittee, it undermines 
public confidence to see the Federal Government turn a blind 
eye to its legal obligations.
    There is more at risk than public confidence in their 
government. A recent court decision raised the prospect of 
significant payments to utilities. There are important 
questions relating to the size of these payments, whether they 
will come from the nuclear waste fund and whether any payments 
will reduce the funding available for the nuclear waste 
program.
    Another reason the administration is opposing an interim 
storage siting is the concern that accelerating acceptance at 
an interim storage facility would somehow undermine the 
repository. There is little disagreement on the need to 
maintain the commitment to a permanent repository, and that is 
one of our legislative goals. I agree with the Clinton 
administration on the importance of the repository and will 
oppose legislation that undermines the permanent repository.
    We need to hear from the Clinton administration on whether 
it intends to offers proposals to accelerate acceptance or 
protect consumers. Over the past two Congresses the 
administration has put forward no proposal on how to achieve 
these two goals. If the administration does not believe the 
goals are important, we need to know. If the Clinton 
administration believes these goals are best achieved in a 
manner different from H.R. 45, we need to know that also.
    I would urge Secretary Richardson of the Department of 
Energy to come to the table and work with the Congress on a 
bipartisan bill that accelerates acceptance, strengthens the 
permanent repository, and protects the consumers. I intend to 
hear from the views of Secretary Richardson on this subject 
directly in the near future. I would point out that he was 
asked to testify today and originally was not able to testify 
because he had travel plans out of the city. Those plans have 
changed, but he has seen fit not to come forward today to 
testify before us.
    I look forward to hearing the testimony of the witnesses 
that are here today, including the delegation of the great 
State of Nevada. In fact, I wonder who is running Nevada today. 
We have got the Governor, both Congressmen and several of their 
local elected officials. I look forward to today's testimony.
    With that, I would recognize the distinguished ranking 
member, the Honorable Ralph Hall of Rockwall for an opening 
statement.
    Mr. Hall. Thank you, Mr. Chairman. I am just trying to tear 
my speech open, hoping I can read it one time to myself before 
I read it to you. With your opening statement, and with the 
witnesses that we have, and with the importance of the 
witnesses--we have some members here--I will ask unanimous 
consent to put my statement in the record, and we will get 
along with the hearing.
    Mr. Barton. Without objection.
    [The prepared statement of Hon. Ralph M. Hall follows:]
Prepared Statement of Hon. Ralph M. Hall, a Representative in Congress 
                        from the State of Texas
    I want to begin by saying Thank you, Mr. Chairman for demonstrating 
an early commitment this Congress to dealing with this pressing issue 
of public trust and safety. I am an original cosponsor of H.R. 45, the 
bill to amend the Nuclear Waste Policy Act of 1982. I was a cosponsor 
of H.R. 1270, the bill which the House passed in 1997, as well. 
Unfortunately, the President rejected H.R. 1270, as well as its Senate 
counterpart, based largely on the argument that we still lacked 
``objective, science based criteria'' to support a decision to move 
forward. Today we have the results of a viability assessment done by 
the Department of Energy. In addition to this change in availability of 
important data, we are dealing with a new Secretary at the Department 
of Energy, a former member of this very Committee.
    When the President asked that Secretary Richardson be confirmed, he 
sent a letter stating his full confidence in then Ambassador 
Richardson's command of this issue, and also indicated that once 
confirmed, the Secretary would have ``full authority to carry out his 
mission in this area.'' Considering the fact that Secretary Richardson 
has been given this authority, along with the fact that he was not so 
long ago, one of our colleagues on this Committee, I urge that he will 
be called as a witness at a future hearing on this bill. We do want to 
pass H.R. 45, and as a matter of efficiency, we want to avoid an 
unnecessary veto, which might be provoked by the appearance that we 
have not taken the opportunity to hear from the Secretary, and to 
permit him to register any of the concerns of the Administration in a 
timely fashion.
    I am pleased to see that the list of witnesses today seems to 
include most of the important players in resolving this issue, and I 
believe that this hearing will provide all of us on both sides of the 
aisle, an opportunity to update our information banks and to ask 
pressing questions which concern us, as we make one more attempt to get 
a bill signed into law. We owe it to all of our constituents to proceed 
expeditiously, and to avoid any more unnecessary delays in authorizing 
an interim storage facility, and we owe it to the taxpayers to avoid 
future litigation which results in substantial damage awards against 
the Department of Energy for its inability to receive spent fuel, in 
compliance with existing law.
    Another issue of public trust looms over this process as well. We 
know that billions of dollars have been paid to the nuclear waste fund, 
only to have very little money actually going toward the program. By 
passing H.R. 45 we will prevent the future diversion of consumer fees 
to fund other programs. As a matter of good policy, I believe that the 
members of this Committee, on both sides of the aisle, know that 
passing H.R. 45 is the right thing to do. Let's just be certain that we 
take care to present this bill to the full House, and to the Senate, in 
such a way that not only guarantees passage, but which goes further 
than the predecessor bills from previous Congresses. It is time for a 
Nuclear Waste storage bill to finally become law.
    We have a responsibility to act in the interest of sound monetary 
policy, and even more importantly, in the interests of public trust and 
safety. Nuclear power has always been a good source of the electricity 
supply, and we need to ensure this source by acting quickly and 
responsibly to dispose of the radioactive wastes it yields. I urge my 
colleagues, especially those who are new to this subcommittee, to 
listen to the message of the importance of developing an integrated 
system to manage the nation's used nuclear fuel. We must seize this 
opportunity to bring a solution to this problem, sooner rather than 
later.
    Thank you, Mr. Chairman, and I yield back the balance of my time.

    Mr. Barton. The gentleman from Illinois, Mr. Shimkus, is 
recognized for a brief opening statement.
    Mr. Shimkus. Thank you, Mr. Chairman. I, too, would just 
ask permission to insert my opening statement so we can get 
along with this long day I think we have ahead of us.
    [The prepared statement of Hon. John Shimkus follows:]
 Prepared Statement of Hon. John Shimkus, a Representative in Congress 
                       from the State of Illinois
    Good morning, Mr. Chairman and to all who have shown up this 
morning. You know, as I began looking over the materials for this 
hearing it seemed to me that I could just change the date on my opening 
statement from two years ago and read it again. I won't do that because 
the statement was really not that good. It certainly was no ``Markey 
masterpiece'' which so often graces this committee. There are, however, 
a couple of lines which I believe are important and still apply today. 
First, ``the time for pointing fingers and playing politics is over.'' 
And second, ``I believe the government is only as good as its word.''
    Well two years later the pointing continues and this government's 
word is worthless still. I guess I am not really surprised.
    I supported HR 1270 last term and I am an original cosponsor of HR 
45 this term because my home state generates about 40-45% of its power 
from nuclear reactors. We depend on nuclear power. I also happen to 
think that our nation should not rely only on just one energy source 
such as natural gas, coal or wind to generate power, but all of these 
sources. It is the smart thing to do over the long haul. Just like any 
good retirement portfolio, our energy industry should be diversified.
    I mentioned earlier that I thought about just re-reading my 
statement from two years ago. I did not do that today because that 
would suggest that nothing has changed in this debate over the last two 
years. We all know that is false. Recently we have been graced with a 
new Secretary at the Department of Energy--one who the President 
promised would be able to negotiate with Congress on this issue if 
confirmed by the Senate. Unfortunately, Secretary Richardson can not 
testify today, but this subcommittee is ready and waiting for the 
Secretary to come forward to testify and seek a solution to this 
problem. I don't think that is asking too much. After all, we are only 
asking the Administration to keep their word and allow the Secretary to 
engage on this issue.
    We have also seen the Department's own viability study released on 
December 18 of last year which continues to support the waste site at 
Yucca Mountain. The very study which the Administration claimed they 
were waiting for in order to make a decision on interim storage has 
finally appeared and guess what--it says that things at Yucca are going 
well. So why can't the administration support interim storage now? I am 
sure there will be reasons and I suspect a new hurdle may be erected 
today against HR 45. That would be disappointing. But deep down inside, 
Mr. Chairman, I think we all know that the Administration has moved the 
goal-posts on this issue just one more time. I look forward to 
questioning the witnesses today. I yield back.

    Mr. Barton. The Chair would be happy to recognize the 
distinguished former chairman and the ranking member of the 
full committee, the Honorable Mr. Dingell of Michigan, for an 
opening statement.
    Mr. Dingell. Mr. Chairman, first of all, thank you for 
recognizing me. Second of all, thank you for having the hearing 
on a matter of high priority on the energy and power 
subcommittee's agenda for the new Congress. It has been 2 years 
since this committee addressed DOE's civilian nuclear waste 
program, and a number of events affecting Yucca Mountain 
project have taken place since then there.
    On the positive side of the ledger, there have been 
substantial improvements of the Department's management of the 
repository program. This is particularly encouraging and 
particularly so in the DOE's recently released viability 
assessment found no disqualifying factors for the Yucca 
Mountain site. Perhaps after billions of dollars expended, we 
are looking at the possibility of a more speedy conclusion to 
this question and a resolution of the nuclear waste disposal 
problems.
    However, the program faces significant difficulties still. 
Since the subcommittee's last hearing, the courts have ruled 
that DOE breached its duty to the nuclear utilities. This is a 
matter of considerable concern, I think, to us. Ratepayers have 
still not received anything tangible in return for their 
contributions to the nuclear waste fund. Congressional budget 
rules threaten to constrain program funding, and money from 
this fund has been dissipated in strange ways. With each 
passing year more utilities confront near-term problems in 
maintaining onsite storage capacity, and the possibility of 
this country using nuclear power technology for the generation 
of energy is being significantly impaired by the situation.
    During the 104th and 105th Congresses, the Commerce 
Committee promptly reported legislation to address these 
problems. The legislation was founded on several simple 
principles. One, it is in the national interest of the United 
States to develop an interim storage facility so long as it can 
be funded adequately and so long as it does not undercut the 
permanent repository program. Parenthetically, I will observe 
that these are both matters of concern to us today.
    The nuclear waste fund must be reformed; put an end to 
congressional pilfering of ratepayer contributions for wholly 
unrelated purposes, a matter that I mentioned earlier. It is 
desirable to streamline the program prudently and with regard 
to the integrity of the licensing process, and to minimize 
further delays in the repository program, and to see to it that 
taxpayer interests are fully protected and that the repository 
program must pay its own way.
    These principles were embodied in legislation this 
subcommittee developed in the 104 and 105th Congresses. Those 
bills received broad bipartisan support and were reported with 
wide margins by both the full committee and the House. Most 
unfortunately, however, the legislation died both times in the 
Senate in the face of strong opposition from the Nevada 
congressional delegation and from the administration. Although 
both the House and the Senate reported legislation during the 
last Congress, the leadership on the Republican side failed to 
convene a conference to resolve differences in the bills. As a 
result, the legislation withered on the vine.
    With the passage of time since our previous efforts, any 
legislative effort must be tailored to account for changed 
circumstances. We must carefully examine the adequacy of the 
funding of DOE's program, which will soon require steep 
increases as the project moves into the licensing and 
construction processes. We must also consider the impact of 
recent judicial decisions on this legislation and take care not 
to put the taxpayer at risk as cases already in the judicial 
pipeline move forward. New approaches may be needed to address 
the difficulties created by nuclear utilities facing near-term 
storage problems. Above all, we must not inadvertently 
undermine the permanent repository without which there will be 
no real disposal solution for utility and defense waste 
temporarily stored in dozens of States.
    In closing, Mr. Chairman, I commend you and I commend 
Chairman Bliley for your willingness to hold thorough hearings, 
including receiving the testimony of Secretary Richardson. The 
President has made clear that the Secretary has full authority 
to represent the administration on this issue. And DOE has an 
enormous interest in resolving the multiple lawsuits now 
pending against the Department.
    In past years as a member of this committee, Mr. Richardson 
contributed significantly to the successful resolution of 
difficult nuclear waste issues, and it behooves us to hear from 
him again in his new role as we again consider nuclear waste 
legislation. I hope the administration will assist the 
committee in bringing fresh ideas to the table, identifying 
problems that exist, and enabling us to work together to 
resolve both the long-term and the short-term problems with 
regard to nuclear waste storage.
    Thank you, Mr. Chairman.
    Mr. Barton. Thank you, Congressman Dingell.
    The Chair would recognize the gentleman from Georgia, Mr. 
Norwood, for a brief opening statement.
    Mr. Norwood. Thank you very much, Mr. Chairman. You seem to 
be very popular today. You have drawn quite a crowd.
    Mr. Barton. It is the Nevadans. We all bask in their 
reflected glory.
    Mr. Norwood. I thank you very much for holding this hearing 
today on the nuclear waste problem that currently faces our 
country. You know, I am starting to feel a little bit like Bill 
Murray in Groundhog Day. Here we are at the beginning of a new 
Congress, and here we are having a hearing on Mr. Upton's 
legislation. Something tells me, though, Mr. Chairman, that we 
may be a little more successful this time around.
    Having said this, I really only have one question today, 
and it will be directed to Mr. Barrett, the Department of 
Energy's witness.
    Mr. Barrett, we have heard Secretary Richardson's recent 
encouraging comments regarding the viability assessment that 
has been conducted at Yucca Mountain over the past 15 years. 
Secretary Richardson notes that it, ``reveals no new show-
stoppers'' and that, ``scientific and technical work should 
proceed.'' Now, knowing this, and knowing that so far this 
administration's only solution to honoring its commitment to 
new spent fuel from nuclear plants in 1998, that is last year 
for those of you who aren't good at math, is the threat of a 
Presidential veto, my question to you, Mr. Barrett, will be 
this: What is Secretary Richardson going to do to ensure that 
the President signs this bill into law this year?
    We have haggled over and resolved the details of this 
legislation 4 years now. The only remaining question is whether 
or not the President will honor a Federal obligation to 
responsibly store this waste at one site instead of dozens.
    Since passage of the Nuclear Waste Policy Act of 1982, 
ratepayers have paid $6.9 billion of which $503 million has 
come from the Georgia ratepayers into this nuclear waste fund. 
The money is there. The wide-ranging support of Congress is 
evident, and a 15-year viability study confirms, as Secretary 
Richardson says, that there are no major problems with moving 
forward. For anyone who has ever visited the site and has known 
that nuclear testing has been going on there for decades, this 
really shouldn't come as any surprise.
    Mr. Chairman, I really again thank you for one more time 
having a hearing on this very important subject, and I look 
forward to all of our panel members. Thank you.
    Mr. Barton. We thank you, Congressman.
    The Chair would recognize the distinguished gentleman from 
Massachusetts Mr. Markey for a brief opening statement.
    Mr. Markey. Thank you, Mr. Chairman, very much, and I want 
to thank you for holding this hearing on this third 
unsuccessful legislative effort to pass the nuclear waste 
legislation in the last 4 years.
    Mr. Barton. The fat lady hadn't sung yet.
    Mr. Markey. I am struck once again by the keen insights 
into the nuclear waste issue from that unlikely quarter, George 
and Ira Gershwin, so let's begin by noting that we have once 
again a reprise of a radioactive Rhapsody in Blue. It is very 
clear plutonium is here to stay, not for a year, forever and a 
day. In time the Rockies may tumble, Nevada may crumble, 
they're only made of clay, but plutonium is here to stay.
    And that, Mr. Chairman----
    Mr. Barton. You were actually better yesterday on the 
floor, Mr. Markey.
    Mr. Markey. Well, you didn't interrupt me yesterday.
    It is still our problem, so let's just consider how best to 
deal with this situation. First of all, when you hear from the 
nuclear utilities that Congress needs to pass legislation to 
build an above-ground interim storage facility and get the 
permanent waste repository program back on track, just remember 
It Ain't Necessarily So. In fact, current law already provides 
legal authority for the construction of such a facility, but it 
bars it from being located in Nevada and limits its size.
    Now, this was done by this Congress in order to prevent any 
interim facility from becoming a de facto permanent storage 
facility. We want to bury it permanently and to protect the 
public integrity of the underground permanent repository 
program. Moreover, current law already provides a framework for 
studying whether Yucca Mountain is scientifically and 
technically suitable to serve as our Nation's permanent waste 
repository and for licensing such a facility For You, For Me, 
Forever More.
    Second, your nuclear utilities may be whining to you that 
they've Got Plenty of Nothin' for all the fees that are paid 
into the nuclear waste fund. But don't forget, they have been 
arguing about the waste with DOE saying that since You Can't 
Take that Away from Me, you have breached our contract and owe 
us damages.
    The courts have botched this dubious argument, and as a 
result, nuclear utility executives are telling each other, I am 
just Bidin' My Time, waiting to receive millions in monetary or 
other damages from the Federal Government. Why then should 
Congress wade into the middle of this litigation for new 
legislation that is most likely to produce A Foggy Day of new 
breach of contract claims, new unrealistic deadlines, and vague 
new legal standards that will tie up an army of lawyers for 
years?
    The argument that Congress needs to legislate because of 
the litigation may work for you, But Not for Me. And just 
remember, if this bill passes, we can no longer rely on having 
Someone to Watch over Me, over you, and over the rest of the 
public to assure that we are all protected from potentially 
lethal exposures to radiation. The EPA will actually be barred 
under this bill from issuing appropriate health-based 
regulation standards, and instead the NRC would be directed to 
issue weaker standards that won't fully protect the public. 
Meanwhile, your constituents will be up in arms Waiting for the 
Train and the trucks to come barreling through their 
neighborhoods carrying a mobile Chernobyl of radioactive waste. 
So don't be surprised if your constituents make a Funny Face at 
you for voting for this legislation.
    It's wonderful, isn't it, how the nuclear utility lobbyists 
have milked this issue for billable hours over the last 4 
years; new swimming pools and wings on their homes built all 
over greater Washington even though they know they don't have 
the votes in the Senate to override President Clinton's veto, 
which is inevitably going to come. This time they are trying to 
push this bill through before Summertime so they can claim, I 
Got Rhythm in the House, and you Senators should bring H.R. 45 
to the floor as soon as possible.
    So I hope that we can, Mr. Chairman, not spend an 
inordinate amount of time on this issue since the votes still 
are not in the Senate in order to override the veto, and I hope 
that the members of our committee will listen closely to the 
bipartisan testimony of the delegation from Nevada. I think 
they speak common sense in asking for real safeguards to be 
maintained on this kind of a project, and I at this point want 
to thank you for extending the extra time to me, and I yield 
back the balance.
    [The prepared statement of Hon. Edward J. Markey follows:]
   Prepared Statement of Hon. Edward J. Markey, a Representative in 
                Congress from the State of Massachusetts
    Thank you, Mr. Chairman.
    As we turn, once more to take up what I predict ultimately will 
become the third unsuccessful legislative effort to pass nuclear waste 
legislation in the last four years, I am struck once again by the keen 
insights into the nuclear waste issue from that unlikely quarter, 
George and Ira Gershwin. Let's begin by noting that what we have here 
is a reprise of a radioactive Rhapsody in Blue.
        It's very clear
        Plutonium is here to stay
        Not for a year
        Forever and a Day.
        In time the Rockies may tumble
        Yucca may crumble
        They're only made of clay
        But Plutonium is here to stay.
    And that Mr. Chairman, is still our problem. So, let's just 
consider how best to deal with this situation.
    First of all, when you hear from the nuclear utilities that 
Congress needs to pass legislation to build an above-ground interim 
storage facility and get the permanent waste repository program back on 
track, just remember: It Ain't Necessarily So. In fact, current law 
already provides legal authority for the construction of such a 
facility, but it bars it from being located in Nevada and limits its 
size. This was done in order to prevent any interim facility from 
becoming de facto permanent storage, and to protect the public 
integrity of the underground permanent repository program. Moreover, 
current law already provides a framework for studying whether Yucca 
Mountain is scientifically and technically suitable to serve as our 
nation's permanent waste repository, and for licensing such a facility 
For You, For Me, For Evermore.
    Second, your nuclear utilities may be whining to you that They've 
Got Plenty of Nothin' for all the fees they've paid into the nuclear 
waste fund. But don't forget, they've been arguing about the waste with 
DOE, saying that since You Can't Take that Away from Me, you've 
breached our contract and owe us damages. The courts have bought this 
dubious argument, and, as a result, nuclear utility executives are 
telling each other ``I'm just Bidin' My Time,'' waiting to receive 
millions in monetary or other damages from the federal government. Why 
then should Congress wade into the middle of this litigation with new 
legislation that is most likely to produce A Foggy Day of new breach-
of-contract claims, new unrealistic deadlines, and vague new legal 
standards that will tie up an army of lawyers for years? The argument 
that Congress needs to legislate because of the litigation may work for 
you, But Not for Me.
    And just remember if this bill passes, we can no longer rely on 
having Someone to Watch Over Me, over you, and over the rest of the 
public to assure that we are all protected from potentially lethal 
exposures to radiation. The EPA actually will be barred under this bill 
from issuing appropriate health-based radiation standards, and instead 
the NRC would be directed to issue weaker standards that won't fully 
protect the public. Meanwhile, your constituents will be up in arms, 
Waiting for the Train and the trucks to come barreling through their 
neighborhoods carrying a Mobile Chernobyl of radioactive waste. So, 
don't be surprised if they make a Funny Face at you for voting for this 
legislation.
    'S Wonderful, isn't it, how the nuclear utilities lobbyists have 
milked this issue for billable hours over the last four years, even 
though they know they don't have the votes in the Senate to override 
President Clinton's inevitable veto. This time, the industry lobbyists 
are trying to push this bill through long before Summertime, so they 
can then claim, ``I Got Rhythm in the House, and you Senators should 
bring H.R. 45 to the Floor as soon as possible if you wish to remain 
The Man I Love.''
    Now, I suppose this is Nice Work if You Can Get It, but personally, 
I would suggest that we just tell the nuclear industry: Let's Call the 
Whole Thing Off.

    Mr. Barton. The Chair will accept the negative 5 minutes 
back. Congressman Hall and I have caucused and decided you need 
to keep your day job. Except in the lounges of Las Vegas, that 
club act--that dog don't hunt.
    The Chair will recognize the distinguished gentleman from 
California Mr. Rogan for a brief opening statement.
    Mr. Rogan. First, Mr. Chairman, I should say I can name 
that gentleman's opening statement in four notes.
    Mr. Upton. Three.
    Mr. Barton. And these are supposed to be less than 3 
minutes, according to the rules of the committee, the opening 
statements.
    Mr. Rogan. Mr. Chairman, the committee will be delighted to 
know that I have used up probably a lifetime of statements in 
Congress over the last 3 months. I will yield back the balance 
of my time.
    Mr. Barton. The Chair would then recognize the 
distinguished gentleman from Tennessee Mr. Bart Gordon for a 
brief opening statement.
    Mr. Gordon. Thank you, Mr. Chairman.
    Following the brevity that has been demonstrated here, let 
me just quickly say that I think this is an important issue. I 
think we do need to move forward. I am glad we are going to 
have input from our colleagues from Nevada. I can certainly 
understand their concerns, and we take that into consideration, 
try to be as sympathetic as we can to move forward with this 
bill, but it is something that needs to be completed, and I am 
glad you are moving forward with it.
    Mr. Barton. I thank the gentleman for that statement.
    The Chair would recognize the distinguished gentlelady from 
the great State of New Mexico Congresswoman Wilson for a brief 
opening statement.
    Mrs. Wilson. Mr. Chairman, I also yield the balance of my 
time.
    Mr. Barton. The Chair would recognize the distinguished 
gentleman from the great State of Ohio Congressman Sawyer for a 
brief opening statement.
    Mr. Sawyer. Thank you, Mr. Chairman.
    I have a long opening statement, which I will share in 
writing. Let me just emphasize my gratitude during the last 
Congress for the attention that was paid to the question of 
route selection. If this is going to take place, then route 
selection becomes a critically important issue and sometimes 
may have to be done by standards that may not reflect the 
conventional wisdom but ought to reflect public safety. And 
with that I yield back the balance of my time.
    Mr. Barton. I thank the gentleman.
    We would recognize one of our new subcommittee members, the 
distinguished Mr. Ehrlich from Maryland, for a brief opening 
statement.
    Mr. Ehrlich. I yield back, Mr. Chairman.
    Mr. Barton. We then recognize the distinguished gentleman 
from Oklahoma Mr. Largent for a brief opening statement.
    Mr. Largent. I don't have an opening statement.
    Mr. Barton. The Chair would then ask unanimous consent for 
a member of the full committee but not of the subcommittee, one 
of the coauthors of the legislation, Mr. Upton, if he would be 
allowed to give a brief opening statement. Is there objection?
    Mr. Upton. Brief.
    Mr. Barton. Brief.
    The chair would recognize one of the coauthors of the 
bipartisan bill, the Upton-Towns bill, for a brief opening 
statement.
    Mr. Upton. Thank you, Mr. Chairman. I will submit my 
lengthy statement for the record. I would just like to say that 
I look forward to working with you and other members of this 
committee as well as Members of the full House and the Senate 
to moving forward a constructive bipartisan bill that will 
hopefully resolve this issue once and for all so we will not 
have to follow along with what Mr. Markey suggested in terms of 
another year or two with a variety of different folks looking 
for billable hours.
    I would note that this is strongly bipartisan. Mr. Towns 
and I have worked hard to make it that way. And if you look at 
the past Congress that we accepted and worked hard to make sure 
that they stayed in, a number of constructive amendments from 
both sides of the aisle. I remember specifically an amendment 
offered by Karen Thurman with regard to local routes, local 
transportation routes, that local States or States and 
localities could have a greater say in terms of where the high-
level nuclear waste would go.
    I would also note that we have a good relationship with the 
new Secretary of Energy Mr. Richardson, who did not oppose this 
legislation as a member of the committee when he represented 
New Mexico. We have spent as taxpayers more than $10 billion, 
billion, on this site. Many of our States have paid hundreds of 
millions of dollars into the fund, which has been recaptured to 
promote Yucca Mountain. And I guess at the end I would just 
like to say we are still willing to consider renaming Yucca 
Mountain Markey Mountain to make sure that----
    Mr. Barton. He probably doesn't want that on.
    Mr. Upton. It might help him out there.
    But I yield back the balance of my time and urge swift 
consideration, and thank you again for letting me have this 
opportunity.
    [The prepared statement of Hon. Fred Upton follows:]
  Prepared Statement of Hon. Fred Upton, a Representative in Congress 
                       from the State of Michigan
    Mr. Chairman: Thank you for holding a hearing today on H.R. 45, 
legislation I introduced last month designed to address our national 
problem with high-level nuclear waste by providing workable solutions 
for managing spent nuclear fuel. I am looking forward to the testimony 
of the witnesses before us and I'm pleased that we have a strong 
Michigan presence on the panels. (Dave Joos from Consumers Energy and 
John Strand from the Michigan Public Service Commission).
    Some of my colleagues here this morning may remember a similar 
debate on nuclear waste during the last Congress. To refresh everyone's 
minds, in 1997, our subcommittee and full Committee approved H.R. 1270, 
a bill similar to the one before us today. In fact, the vote in the 
full Committee was 42-3. The bill passed the House in October, 1997 by 
a vote of 307-120.
    My interest in this issue stems from my experience in western 
Michigan. A few years ago, the Palisades nuclear power plant in my 
district ran out of storage space in its pools. Because there is 
nowhere to send the spent fuel rods, company officials have had to use 
so-called ``dry cask'' storage in 130-ton concrete and steel containers 
about 100 yards from Lake Michigan. The three other nuclear power 
plants in Michigan and more than 80 in other states may ultimately have 
to follow suit if the federal government doesn't live up to its 
responsibilities.
    The bill I introduced simply states that as the Department of 
Energy works on the permanent site at Yucca Mountain in Nevada, which 
won't be completed until 2010, we should temporarily stack the waste 
outside what is expected to be the final resting place. Our government 
should pursue a policy that puts nuclear waste behind one fence, in one 
location, where we can concentrate all of our resources on making sure 
it is safe. In the meantime, we should also move the waste from 
environmentally sensitive areas like the Great Lakes, Chesapeke Bay and 
other places.
    I am pleased that many members of this subcommittee have joined me 
as cosponsors including Congressmen Towns, Barton, Hall, Bilirakis, 
Burr, Rush, Stupak, Norwood, Shimkus, Gordon, Stearns and Gillmor. The 
total number of cosponsors has already reached 80. Key organizations 
like the National Association of Counties support the bill.
    My legislation minimizes the threat of nuclear waste by placing it 
in a suitable location in the short-term. That threat can be greatly 
reduced still by putting in place a permanent facility which I fully 
support.
    Both dry cask and pool storage are safe but there can be no 
question that centralized storage in one area is better than leaving 
wastes at numerous sites sprinkled across our nation at more than 80 
sites.
    I would urge the Department to work with us as this legislation 
moves through the congressional process, rather than throw up 
roadblocks. I look forward to hearing testimony today from Department 
officials and the Nuclear Regulatory Commission. I'm pleased that the 
Department's Viability Assessment released in December stated clearly 
that ``scientific and technical work at Yucca Mountain should 
proceed.'' Secretary Richardson said that he was very impressed with 
the high quality of the science that went into the development of the 
assessment.
    As I've said in the past, the government must live up to its 
promises and protect the environment by moving nuclear waste to a 
permanent and final resting place. My bill does just that. I hope we 
can consider this legislation in a timely fashion here in the Committee 
and move this needed legislation to the full House in the near future.
    Thank you, Mr. Chairman.

    Mr. Barton. We thank you for your leadership. It is 
thankless, I know that, and you and Congressman Towns are to be 
commended.
    The Chair would recognize Mr. Pallone for a brief opening 
statement if he so wishes.
    Mr. Pallone. Thank you, Mr. Chairman. I will try to shorten 
this.
    Mr. Barton. We are actually going to use the clock, so you 
have got 3 minutes and maybe a little longer if you are in good 
form.
    Mr. Pallone. Thank you, Mr. Chairman.
    I have in the past voted for this bill in committee, but 
since we began this process 4 years ago, circumstances have 
changed. The legislation has failed to be enacted, as you know, 
in two previous Congresses, and litigation has produced 
decisions holding DOE liable for its failure to uphold its 
obligations under the act, and the legislation before us may 
affect the outcome of pending cases or create new causes of 
action.
    I have always been concerned that funding and construction 
of interim storage facilities should not detract from funding 
and constructing a permanent storage facility. I no longer 
believe that the language in H.R. 45 can meet this test.
    Mr. Chairman, I think we must address the nuclear waste and 
spent fuel storage and disposal problems this country faces, 
keeping in mind that the overriding goal of such legislation 
must be to ensure the safe, permanent disposal of spent nuclear 
fuel and high-level radioactive waste. But I am no longer 
convinced that the legislation before us provides the best 
means to help utilities, ratepayers and taxpayers without 
creating new problems.
    About $15 billion has been paid by ratepayers into the 
nuclear waste fund of which only about $6 billion has been 
spent, with the rest having been used for Federal deficit 
reduction. Four years ago, when we drafted the language now in 
H.R. 45, we proposed a user fee to fund the nuclear waste 
program in order to prevent further diversion of payments to 
unrelated purposes and ensure that a permanent repository would 
actually be built. But as I said earlier, DOE has been shown to 
have breached its promise to begin accepting waste by January 
1998 and is being sued because of its failure to meet this 
deadline.
    Pending litigation means that the status of the existing 
fund and the proposed user fee mechanism are even more 
uncertain than ever, and Budget Committee pay-go rules have 
forced changes to the legislation that seem likely to expose 
DOE and taxpayers to new damage claims.
    It is time we right the wrong that has been done to 
ratepayers. We must try to stop solving the Budget Committee's 
problem and trying to rectify ratepayers' problems without 
simultaneously creating additional problems for taxpayers.
    The Budget Committee should solve its own problems and 
balance the budget without diverting funds in the name of 
borrowing from this and other trust funds. To address these 
issues we must sit down and work toward a truly viable solution 
to this very real problem, but this will only occur if we work 
together to craft new language on a broadly bipartisan basis.
    I look forward to hearing from today's witnesses and 
reserve the balance of my time for questions that I would have 
after, Mr. Chairman. Thanks again for having the hearing.
    Mr. Barton. Thank you for that statement, and I would tell 
the gentleman from New Jersey that I agree with much of what 
you said. Thank you.
    Mr. Pallone. Thank you.
    Mr. Barton. I think that makes sense.
    The distinguished gentleman from Arizona Mr. Shadegg, would 
he like to make a brief opening statement?
    Mr. Shadegg. I will waive any opening statement other than 
to say, Mr. Chairman, I have cosponsored this legislation in 
the past. I commend you for holding this hearing, and I intend 
to cosponsor this particular bill again this year.
    Mr. Barton. The Chair seeing no other members present on 
the subcommittee, we will give the requisite number of days for 
all members not present to put written statements into the 
record and those that have made statements the authority to 
revise and extend their remarks.
    [Additional statements submitted for the record follow:]
 Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
    Mr. Chairman, I commend you for moving forward aggressively on this 
issue early in our session. Finding a solution to the problem of high-
level nuclear waste is one of the most important challenges facing this 
country, and therefore it is one of the most important priorities for 
our Committee.
    For the past half a century, nuclear energy has played a major role 
in our lives, from ensuring our national security, to furthering the 
frontiers of science, to providing us with a reliable source of 
electrical power. Nationwide, nuclear energy is the source of 
approximately twenty percent of the electricity generated in this 
country. Some states rely on nuclear power even more--in my home state 
of Virginia, 43 percent of the electrical power generated comes from 
four nuclear units at the North Anna and Surry power stations. Without 
a central repository for the permanent disposal of the radioactive 
materials from these facilities, we are forced to provide temporary 
onsite storage for these materials.
    The debate over nuclear waste is not just about what to do with the 
products of past activities and operations--it is very much a debate 
about our future as well. Any significant reduction of our current 
nuclear generating capacity, either due to an unwieldy licensing 
procedure at the front end of the process or a bottleneck over the 
disposal of spent fuel at the tail end of the process, will require us 
to replace that existing generating capacity with some other source of 
power. It would be difficult to replace the 20 percent of generating 
capacity that comes from nuclear power. If we have to replace this 
power with fossil fuel sources, the result will be added emissions. For 
both economic and environmental reasons, it is vital that we take steps 
to preserve our existing nuclear generating capacity.
    Yet, despite the clear benefits we all enjoy from nuclear power, a 
permanent solution for the spent reactor fuel and other high-level 
waste from nuclear activities continues to evade our grasp. In the 
early 1980s, Congress and the President made a commitment to the 
American people that the federal government would construct a permanent 
underground repository for the disposal of spent fuel and other high-
level radioactive waste. The Department of Energy was directed to begin 
acceptance of spent fuel at the end of January last year. As we all 
know, the Department was unable to meet that 1998 deadline. While the 
Department is making commendable technical progress on the Yucca 
Mountain site, the current schedule would not allow for acceptance of 
spent fuel until--at the earliest--the year 2010. That is over 12 years 
behind schedule. It is not surprising that a number of utilities have 
brought suit over this failure of the federal government to live up to 
its obligation.
    And that is really why we are here today, Mr. Chairman. We are here 
to make sure the federal government keeps the promise it made to the 
American people back in 1982. We have to make sure that the utility 
ratepayers who have deposited billions into the Nuclear Waste Fund get 
what they paid for--timely acceptance and disposal of the spent reactor 
fuel.
    We should do nothing that will slow down the Department's progress 
on the permanent repository at Yucca Mountain. But if the permanent 
repository cannot be ready until the year 2010, we urgently need to 
find an interim solution that will allow DOE to begin acceptance of 
spent fuel at an earlier date. I believe that H.R. 45 will meet that 
objective.
    Mr. Chairman and members of this Committee, let us build on the 
progress we made during the 105th Congress. H.R. 1270, a bill very 
similar to the one you are considering today, was passed by an 
overwhelming bipartisan majority of the House, and the Senate did 
likewise with a similar bill. Now that the Department of Energy has 
completed a positive viability assessment, we have all the more reason 
to move forward with this legislation as soon as possible.
    Mr. Chairman, I appreciate your holding this hearing today and look 
forward to the testimony of our witnesses.
                                 ______
                                 
Prepared Statement of Hon. Cliff Stearns, a Representative in Congress 
                       from the State of Florida
    Thank you, Mr. Chairman, I am pleased that we are holding this 
hearing today to obtain feedback on the Nuclear Waste Policy Act, 
sponsored by Chairman Barton. I am a cosponsor of this important 
legislation.
    In Florida, we have five nuclear units which provide about 19 
percent of the state's electricity generation. The benefits of this 
fuel source are clear: the use of nuclear energy has reduced Florida's 
carbon dioxide emissions by 96.7 million metric tons since 1973.
    However, these benefits have not come without a price. Since 1983, 
consumers of Florida's nuclear-generated electricity have contributed 
over $649 million to the federal Nuclear Waste Fund, This fund was to 
finance nuclear waste management beginning in January 1998. However, 
the Department of Energy's failure to meet the January 1998 deadline to 
begin storing used nuclear fuel clearly violates the federal agency's 
contract with electric utilities operating Florida's nuclear power 
plants.
    I understand that DOE has stated that the agency will not accept 
used fuel without a disposal or storage facility. This act will allow 
DOE to begin accepting used fuel assemblies by 2002. Almost all of the 
Florida Representatives voted for the NWPA when it passed the House in 
October 1997, Florida Senators Mack and Graham voted for similar 
legislation in the Senate. I support this legislation and I look 
forward to hearing from our panelists.
                                 ______
                                 
   Prepared Statement of Hon. Michael Bilirakis, a Representative in 
                   Congress from the State of Florida
    Mr. Chairman, I want to commend you for scheduling today's hearing 
on H.R. 45, the Nuclear Waste Policy Act of 1999. Unfortunately, a 
scheduling conflict with the Health and Environment Subcommittee, which 
I chair, will prevent me from attending this hearing. However, as an 
original cosponsor of H.R. 45, I believe Congress must act 
expeditiously on this important issue.
    H.R. 45 will give us a viable system for managing the nation's 
spent nuclear fuel from the time it leaves the power plant until it 
reaches the repository. It is regrettable that our country's program to 
manage nuclear waste has come to this point. Seventeen years ago, 
Congress established a nuclear waste policy based upon the scientific 
consensus that the best way to dispose of high-level radioactive waste 
is to bury it deep underground.
    The Nuclear Waste Policy Act of 1982 gave the Department of Energy 
responsibility for finding a suitable location to build and operate--at 
that time a disposal facility. The opening date for that facility was 
to be 1998.
    To fund the program, nuclear utility customers were asked to pay a 
surcharge on their electricity bills and the money was to be placed in 
a nuclear waste fund administered by the Congress. To date, more than 
$15 billion has been committed to this fund. The ratepayers are keeping 
their part of the bargain.
    However, the Federal Government's spent fuel management program is 
in serious trouble. The opening date for the repository has slipped to 
at least 2010, more than a decade after the target date specified by 
the Nuclear Waste Policy Act of 1982.
    The consequences of continued inaction is severe. The nation's 
nuclear power plants were not designed to be permanent disposal 
facilities, and many are running out of storage capacity for spent 
fuel. By 1999, 29 reactor sites will have exhausted existing storage 
capacity. By 2010--the earliest date a repository could be operating--
80 plants will no longer have enough on-site capacity--three of them in 
my state of Florida.
    As a result of the delays, utilities are being forced to plan 
additional storage at their nuclear power plants at a cost of tens of 
millions of dollars per site. Consumers may be forced to pay twice for 
the same service--once for the Federal Government's sluggish repository 
program and again for additional storage space. Moreover, there is no 
assurance that a power plant will not become a permanent home for spent 
fuel.
    Even worse, some utilities may be forced to prematurely shut down 
nuclear plants because there is simply no additional space to store the 
spent fuel. The Nuclear Regulatory Commission does not permit nuclear 
plants to operate unless they have storage for all of the fuel in their 
reactors. The cost to consumers for replacing electricity produced at 
these plants will be enormous--and even that would not solve the 
problem of how to dispose of the spent fuel already being stored at the 
plants.
    Our nation's 103 nuclear power plants produce about 20 percent of 
our electricity--and through the interconnection of power lines, nearly 
all Americans get some of their electricity from nuclear energy. In 
Florida, nineteen percent of our electricity comes from nuclear power. 
We simply cannot afford to let shortcomings in DOE's program threaten 
this important source of electricity.
    Electricity customers in Florida and every other state that has 
nuclear power plants have already paid for nuclear waste disposal. In 
fact, Floridians have paid more than $649 million. This Congress must 
ensure that these customers get what they have paid for.
    H.R. 45 directs the Energy Department to develop the missing piece 
of an integrated nuclear waste management system--a temporary facility 
at the permanent storage site until the permanent repository is ready. 
This temporary facility will ensure that the Federal Government meets 
its commitment to begin taking spent fuel from nuclear power plants.
    The ratepayers have kept their part of the bargain. Now, it is time 
for the Federal Government to fulfill its responsibility as well. We 
must act on H.R. 45.
    Mr. Chairman, I look forward to working with you and my colleagues 
on this important issue. Although, I cannot attend today's hearing, I 
will be reviewing the testimony of our witnesses.

    Mr. Barton. The Chair would now like to call forward our 
first distinguished panel headed by the distinguished Governor 
of the great State of Nevada, the Honorable Kenny Guinn. We 
also have the senior Member of the House delegation, the 
honorable James Gibbons; the junior Member of the House 
delegation the Honorable Shelley Berkley; the distinguished 
mayor of the city of Caliente, the Honorable Kevin Phillips. 
Our two Senators were scheduled to be here, the two Senators 
from Nevada, but they have pending business in the Senate, and 
we will put their statements into the record in their entirety, 
and it is my understanding that the Congresswoman Berkley is 
going to put in one of the Senators' statements into the 
record.
    Mr. Gibbons, we are going to recognize you to introduce to 
our subcommittee your Governor, and at the conclusion of your 
introductory remarks, we will let the Governor speak, and then 
we will start with you, then Congresswoman Berkley and then 
Mayor Phillips.
    Mr. Gibbons. Mr. Chairman and members of the committee, 
thank you very much for allowing us and the delegation of 
Nevada to have an opportunity to be here today to testify as a 
bipartisan group effort against this measure. As you can tell, 
the two United States Senators from Nevada are unable to be 
here as they are now presently addressing a rather radioactive 
measure themselves that is over in the Senate. I would like to 
ask unanimous consent of the committee to introduce for the 
record the complete written statement of Senator Harry Reid.
    Mr. Barton. Without objection, so ordered.
    [The Prepared statement of Hon. Harry Reid follows:]
Prepared Statement of Hon. Harry Reid, a U.S. Senator from the State of 
                                 Nevada
    It gives me the greatest pleasure to welcome Nevada's newly elected 
Governor Kenny Guinn to the Capitol. He has stepped into this job at a 
time of continued heed for leadership in Nevada's Capitol, and I am 
wholly confident in his capacity to meet the challenge. His priorities, 
and Nevada's priorities could not be more clear. It says a lot that 
Governor Guinn would fly all night from his state duties at a time when 
the State Legislature is in session to be here today.
    Many attempts have been made in recent years to find legislative 
remedies to the overwhelming technical challenges of managing spent 
nuclear fuel and other high level radioactive waste. Failure after 
failure of these legislative initiatives is simple affirmation that 
science is immune to legislative overrides.
    Permanent disposition of untreated spent nuclear fuel requires 
effective environmental isolation of this waste material for a period 
that far exceeds recorded human history. Present policy calls for 
licensing a repository that would meet this isolation requirement for a 
period of ten thousand years. That period of isolation serves only to 
reduce the intensity of short half-life waste, but it is totally 
inadequate to reduce the activity of many isotopes with half-lives 
ranging from several times the licensing period to several hundred 
thousand years.
    The ultimate failure of any isolation material or strategy 
guarantees that, sooner or later, the environment will become 
contaminated by radioactive waste that will escape the repository and 
migrate through the ground water. That fact is a certainty. What is 
uncertain is when containment failure will occur, and the amount and 
speed of migration of waste beyond the repository boundaries. Reducing 
that uncertainty to acceptable levels, and demonstrating to everyone's 
satisfaction that those levels of uncertainty are indeed acceptable are 
the primary objectives of the scientific characterization effort. It is 
difficult, it takes time, and it requires a minimum of distraction from 
the primary scientific effort.
    Legislative initiatives to resolve this difficult problem have 
failed time and again. S. 1271 in 1995, S. 1936 in 1996, S. 104 in 
1997, and H.R. 1270 in 1998 all failed to become law. These efforts 
failed because they were misguided bills crafted to meet the nuclear 
industry's demands. They were not focused on the needs of the 
development program that must provide a safe and secure storage 
facility to contain the waste with high confidence for as long as 
necessary to protect the environment.
    Sadly, H.R. 45, the Nuclear Waste Policy of 1999, is no better than 
the earlier failures. In fact, H.R. 45 goes awry at the very beginning. 
The Section dealing with ``Findings and Purposes'' says it all. 
According to H.R. 45, ``The Congress finds that while spent nuclear 
fuel can be safely stored at reactor sites, the expeditious movement to 
. . . a centralized Federal facility will enhance the Nation's 
environmental protection''.
    I am encouraged that H.R. 45 is at least half right. Indeed, spent 
nuclear fuel can be safely stored on reactor sites. I have been saying 
that for years, and so has the independent Congressionally authorized 
Nuclear Waste Technical Review Board. Interim storage at reactor sites 
is a safe, secure, and economical way to manage spent nuclear fuel for 
as long as it takes to find a more permanent management option. On-site 
storage in the present configuration is safe for at least a generation, 
and modest investments will prolong that option for at least one 
hundred years. There is no technical or fiscal reason to move the waste 
until a permanent repository is prepared.
    However, contrary to H.R. 45, there is no enhancement of 
environmental protection from moving the waste from its present 
temporary storage to yet another temporary storage site. That assertion 
by H.R. 45 is just plain nonsense. Developing a so-called 
``centralized'' temporary storage facility will not reduce the number 
of interim storage sites. It will increase the number of sites to be 
developed and maintained. None of the present temporary sites will be 
closed before the present characterization effort at Yucca Mountain is 
scheduled for completion.
    Moreover, the proposed interim storage facility referred to in H.R. 
45 is sited in an area in Nevada that is subject to the third highest 
frequency of earthquakes in the country. Just 2 weeks ago, the Nevada 
Test Site was shaken by a series of 4 earthquakes on 2 separate faults 
over a period of 3 days. These were not negligible events, toppling the 
contents of a number of structures on the Site. It is nonsense to 
assert enhanced environmental protection by moving this dangerous 
material from its present safe storage at reactor sites to a much less 
safe, earthquake-prone region. This move is a recipe for disaster.
    Current law prohibits an interim storage site in a state with a 
site being evaluated for a permanent repository. That feature of the 
Nuclear Waste Policy Act was provided to guarantee the unpressured, 
independent scientific work that is absolutely necessary for public 
health and safety, and for protection of the environment. It is this 
aspect of current policy that H.R. 45 is trying to overturn. The 
nuclear industry wants to preempt the scientific work because they know 
that once the waste is moved to Nevada, it will never leave, regardless 
of the risks to public health and the environment.
    There can be no doubt about it. H.R. 45 is all about interim 
storage. It is all about preempting high quality technical 
characterization of the proposed permanent repository. It is all about 
the nuclear industry trying to unload its waste, generated at a profit, 
on the American taxpayer without regard for the risks to the public and 
the Nevada environment. H.R. 45 is all about interim storage in Nevada, 
but interim storage anywhere but on reactor sites is nonsense.

    Mr. Gibbons. I will take a minute to introduce both Shelley 
Berkley, the newest member of our delegation from District 1 in 
Nevada, upstanding member of the community in the State who is 
a hard worker in this battle as well; and our present Governor, 
Mr. Kenny Guinn, who was elected in November to replace the 
current Governor, the past Governor, Governor Miller.
    Let me begin, Mr. Chairman, to remind this committee. This 
is an issue of safety, safety for all Americans.
    Mr. Barton. Are you going to give a statement now or do an 
introduction, because you will have a chance to give a complete 
statement on your own. My understanding was that you would 
introduce the Governor, and as the leader of the State, we will 
let him speak, and then we will start with you and let you 
speak. But if you want to speak first and it is okay with your 
Governor, it is okay with me.
    Mr. Gibbons. Let me tell you that it is an issue of safety 
whether I go first or he goes first. It depends on the 
political safety in our State.
    I do know that our Governor does want to make a statement 
and would certainly like to introduce him at this time with the 
committee and the chairman's approval. Governor Guinn was sworn 
into office last month, in the month of January. He has quickly 
joined the battle on behalf of Nevada against this issue in an 
attempt to help not only educate America with you, the leaders 
of Congress here, as to the dangers of this subject not with 
regard to just Nevada, but with regard to all of America. He 
has shown great leadership on this issue. He will be holding 
the first ever nuclear waste summit in Nevada next week where 
we will invite officials to come in and talk to us about this 
issue in the State of Nevada.
    By way of background, Governor Guinn is the former 
president of the University of Nevada Las Vegas. He was the 
chief executive officer of Nevada Power, served on the board, 
and has been the president of several banks. He was also the 
superintendent of Clark County Public School System, one of the 
largest school systems in the United States. He serves on a 
number of committees, a number of boards from various private 
sector organizations. He is a leader in the State. I think he 
is a leader in America, and I look forward, as this committee 
should, to receiving the testimony of Governor Kenny Guinn.
    Mr. Barton. Thank you.
    Governor Guinn, we are delighted to have you before the 
subcommittee. I think I speak for members on both sides of the 
aisle that we respect your leadership not only in your State, 
but in the country, as one of the 50 State leaders. We are 
going to give the others 5 minutes to summarize, but especially 
since our two Senators that tend to be long-winded are not 
here, we are going to give you as much time as you may consume, 
asking you to join in the spirit of this subcommittee, which is 
normally very conservative, and don't abuse that privilege in 
terms of time.
    But we now recognize you. Your complete statement is in the 
record in its entirety, and the committee would like to hear 
your views on this very important subject to your State and the 
Nation.

  STATEMENT OF HON. KENNY C. GUINN, GOVERNOR, STATE OF NEVADA

    Mr. Guinn. Thank you, Mr. Chairman and also members of the 
committee. My name is Kenny Guinn, and I am the Governor of the 
State of Nevada, as you have already heard, and I appreciate 
this opportunity to be before you today to address a matter 
that is of extreme importance not only to the people of Nevada, 
but also to citizens throughout this great country.
    I am new to the Governorship in Nevada, having been elected 
in November, and I must say I am the first Republican to hold 
the office since 1982. I am not a career politician, and this 
is my first run for elected office, but I am not new certainly 
to public service, as you have just heard from Congressman 
Gibbons.
    I have been a resident of southern Nevada for 35 years, 
where my wife and I have raised our two sons and are now 
enjoying our grandchildren. We watched the Las Vegas Valley 
grow from a small city of a hundred thousand or so to a major 
metropolitan area, an international tourism center with almost 
1.5 million citizens, and growing almost at the rate of 6- to 
7,000 people a month. And we also have 30 million visitors a 
year plus from all over the United States and the world. 
Consequently, I have more than a passing familiarity with the 
problems facing us right now in the State of Nevada.
    I believe that H.R. 45 is wrong for our country for several 
important reasons. It is scientifically unsound. It creates 
health and safety risks not only for the people of Nevada, but 
also for all those whose homes and businesses are in the 
transportation quarters and paths of the deadliest substance 
known to mankind. And it violates the spirit of the 10th 
amendment to the United States Constitution by targeting Nevada 
on a purely political basis.
    H.R. 45 is the latest in a string of failed bills designed 
to fashion a quick and expedient fix for the high-level 
radioactive waste program that has been bungled over the years 
by the Department of Energy, but like its predecessor, this 
bill will not fix anything. Rather H.R. 45 will exacerbate the 
problems facing nuclear utility companies in the Nation. It 
will, if enacted into law, create a huge unfunded liability for 
the American taxpayers, as we have heard already today from 
testimony, undermining environmental, health and safety laws 
and regulations, and put millions of citizens in hundreds of 
cities in 43 States at substantial risk from the transportation 
of spent nuclear fuel and high-level waste throughout their 
communities.
    And that doesn't begin to take into account what the 
legislation will do to Nevada where it will continue to flaunt 
a potential disastrous Yucca Mountain repository project by 
eliminating existing standards for determining site 
suitability, reducing regulatory requirements, governing 
regulation exposure to the public and exempting DOE from 
Federal, State, and local environmental laws and regulations 
which we all must abide by.
    As I point out in my written statement, the evidence is 
clear that Yucca Mountain should be disqualified as a 
repository location, and no amount of legislative 
gerrymandering will change this statement. DOE recently 
released a so-called viability assessment for Yucca Mountain. 
The report calls to mind a famous Harry Truman quote. If you 
can't convince them, confuse them. And if you look at the 
viability study, I think you will see that is exactly what it 
attempts to do. A study based on flawed, biased and incomplete 
science, the viability assessment may very well be remembered 
for what DOE doesn't want acknowledged about Yucca Mountain, 
namely that the waste isolation features of a mountain are, in 
fact, insufficient to assure that radioactive wastes do not 
escape into the environment.
    One startling revelation emerges from this report. To make 
the Nevada site meet even minimal standards, standards, I would 
point out, that are far less stringent than for other nuclear 
facilities in the country, DOE's viability assessment must rely 
on a waste disposal container that will last for 750,000 years. 
What happened to requirement that the geologic environment 
itself must be able to contain the waste for the time required 
with so-called engineered barriers providing only enhancement 
and redundancy for the system? This requirement is the very 
basis for deep geologic disposal of spent fuel and high-level 
waste in the first place.
    The area encompassing Yucca Mountain that we know and a 
Nevada test site lies within a region identified by the U.S. 
Geological Survey as one of the most seismologically active 
regions in the country. During the past 20 years, there have 
been over 621 earthquakes recorded with magnitudes of 2.5 or 
greater, including a 5.6 magnitude quake in 1992 that occurred 
just 12 miles from the proposed repository and even closer to 
the proposed interim storage site causing over $500,000 in 
damage to DOE's Yucca Mountain support facility. Just last 
month, two substantial earthquakes, one a 4.5 and the other 
4.7, and a swarm of smaller quakes were recorded in the 
Frenchman Flat area of the test site very close to Yucca 
Mountain, in area 25, the proposed interim storage location.
    The U.S. Immigration and Naturalization Service recently 
commissioned a study to screen possible locations for a new 
national data processing facility for immigration records and 
information. The INS specifically ruled out all of southern 
Nevada and southern California because this region is 
considered to be too prone to disruption by earthquakes. Isn't 
it ironic that it is acceptable to DOE to store extremely 
dangerous and long-life radioactive waste at Yucca Mountain, 
but it is too risky to use the same area for storing records on 
legal and illegal immigrants.
    H.R. 45 also designates the Nevada test site as the 
location for a so-called interim storage facility for spent 
nuclear fuel. It does so without one bit of scientific or 
technical evidence suggesting that the site is safe and 
suitable for such storage, and without any justification 
whatsoever other than Nevada's perceived political 
vulnerability.
    Many of the same factors that make Yucca Mountain 
unsuitable as a repository location also make the Nevada test 
site unsuitable for above-ground storage of spent fuel and 
high-level waste as proposed by H.R. 45. Such a facility cannot 
meet the Nuclear Regulatory Commission's licensing requirements 
governing seismic risk for nuclear facilities under current NRC 
regulations.
    As a businessman, legislation like this makes no sense to 
me. As a father and grandfather, the unnecessary risk it poses 
not only to present and future generations of Nevadans, but 
also to families and children in communities throughout the 
country seems unconscionable to me. Not only does H.R. 45 put 
Nevada's people and environment at risk, but it would also 
expose thousands of communities and cities throughout the 
country to an unprecedented and potentially hazardous nuclear 
waste shipping campaign that will involve tens of thousands of 
truckloads and rail shipments over a sustained period of 30 
years or more.
    H.R. 45 would have thousands of shipments of dangerous 
nuclear waste rolling over the Nation's highways and railways 
within 4 years. It will result in massive unfunded costs to 
States and communities for emergency planning and preparedness. 
It will increase the risk of radiation exposure to people 
traveling on the country's interstate highways. It will 
dramatically increase the risk of radiation exposure due to 
accidents that will invariably occur in a shipping campaign of 
this magnitude. And it will significantly increase the risk of 
terrorism or sabotage against the inviting targets of nuclear 
waste trucks and trains.
    The cost of this legislation poses another major problem. 
Our analysts with the oversight of a major national accounting 
firm recently estimated the total cost of a repository and 
interim storage system envisioned by H.R. 45 using procedures 
similar to those employed by DOE in its total system life cycle 
cost evaluations. They found that the total cost for 
development, operation and closure to be $54 billion in 1996. 
The nuclear waste fund at maximum will generate only about half 
of the necessary funds. It is unacceptable that the American 
taxpayer should have to bear the burden of paying billions of 
dollars for this misguided and risky program that was 
originally intended to be one of full cost recovery. And what 
will a Nation have gained by incurring this risk and enormous 
costs the program the program will entail?
    If permitted to go forward, this legislation will result in 
the movement of spent fuel and high-level radioactive waste to 
a questionable and risky location in a facility that cannot 
meet NRC safety standards, next to a so-called repository site 
that is incapable of isolating radioactive materials as 
required and that will never be licensed or built.
    At this point what does a Nation do? Will Congress pass 
legislation authorizing DOE to move all the waste back across 
the country where it came from? Will it attempt to find another 
actually suitable storage site with all the political baggage 
such an effort would imply?
    Mr. Chairman, the direction of this legislation leaves 
Congress and the Nation in a--fraught with peril and a 
dangerous precedent. It will leave us in that position. As 
someone that strongly believes in the principles of federalism 
that governs State and Federal relationships in this country, I 
am very much disturbed by the damage H.R. 45 does to this 
essential principle that has characterized the American 
Republic for over 200 years.
    Those who support this unfair legislation would have the 
American people believe there is no suitable alternative of 
shipping nuclear waste to Nevada. It should be known by 
everyone who follows this issue that science has created a 
process, dry cast storage, which enables high-level waste to be 
stored onsite at reactor locations for 100 years or more, 
sufficient time to explore more permanent and scientifically 
sound methods such as reprocessing and especially through our 
scientific methods. This legislation throws science out the 
window. It throws equity and fairness away. It places raw 
political expedience as the driving force for dealing with 
difficult problems involving technology in the environment.
    Mr. Chairman, H.R. 45 to us is bad legislation and bad 
public policy. It will do great harm to Nevada, to many other 
States, and to the political fabric of this great Nation of 
ours, and I would ask you to give every due consideration in 
your deliberations to what is fair and to what is right for the 
people of America, and especially for those of us who live in 
the State of Nevada, and thank you for this opportunity. I will 
yield my remaining unlimited time to my two colleagues.
    [The prepared statement of Hon. Kenny C. Guinn follows:]
     Prepared Statement of Hon. Kenny C. Guinn, Governor of Nevada
    Mr. Chairman, Members of the Subcommittee: I appreciate the 
opportunity to speak with you today on a subject that we in Nevada have 
been confronting for more than 20 years, and has held our full 
attention as a state since Congress acted in 1987 to single out Yucca 
Mountain, Nevada, as the only site to be studied as a candidate 
repository site for the nation's commercial and government-owned high-
level nuclear waste.
    We are all aware of the political nature of that 1987 decision. And 
we are all aware that no state would accept that decision with any less 
opposition than Nevada has shown during the past nearly 12 years. In 
1989, the Nevada Legislature enacted a law making the storage of high-
level nuclear waste illegal in the State. Some 14 other states had 
similarly intended legislation on their books at the time.
    In a recent bi-annual poll conducted by the University of Nevada 
regarding major public issues in the State, 75% of Nevada citizens were 
opposed to Yucca Mountain becoming the final destination for the 
nation's high-level nuclear waste. Since 1992, this number has risen by 
16 percentage points in the same poll. One must wonder why Nevadans, in 
impressive and increasing numbers oppose this imposition within our 
state.
    The reasons are many, but they settle generally into two important 
categories--political fairness and equity, and safety. Nevada has no 
nuclear power reactors, and is far distant from most of the nation's 
reactors, which are east of the Mississippi River. The principle of 
regional equity that was intentionally embedded in the 1982 Nuclear 
Waste Policy Act as a fairness gesture for western states was 
essentially stripped from the Act in 1987. And now we see a further 
insult to fairness and equity in HR 45, which contains a provision to 
preempt any state laws, including federally delegated environmental 
protection authorities, that might interfere with the bill's purpose of 
storing nuclear waste in Nevada. Fairness is also at issue in the 
matter of HR 45's elimination of the Secretary of Energy's duty to 
determine, based on statutory criteria, the suitability of the site for 
development of a repository, and Nevada's ability to disapprove in a 
substantive manner before Congress, the Secretary's recommendation that 
the Yucca Mountain site be developed as a repository.
    Both fairness and equity, and safety are at stake in the ongoing 
stream of actions to preserve the viability of the Yucca Mountain site 
through compromise of safety, suitability and licensing standards. The 
site should have been disqualified from further consideration in 1992 
when it was clear to all parties that it did not meet the established 
safety standard for radionuclide releases from geologic repositories. 
Instead, Congress instructed the Environmental Protection Agency to 
write new, site specific safety standards for a Yucca Mountain 
repository, and directed the Nuclear Regulatory Commission to conform 
its licensing regulations to that new standard. EPA has not yet acted, 
but the NRC has proposed a new standard for a Yucca Mountain repository 
that is less protective than that applied to the DOE's geologic 
repository for transuranic wastes at the Waste Isolation Pilot Plant, 
in New Mexico. The NRC also has ignored the Safe Drinking Water Act 
protection limit for radionuclides in drinking water, even though it is 
known that radionuclides released from a Yucca Mountain repository will 
contaminate the water supply aquifer used by local residents and 
farmers. Groundwater protection is afforded by law to all other people 
of the United States.
    In December, 1998 former Governor Bob Miller and I, as Nevada 
Governor-elect, joined in a letter to Energy Secretary Richardson 
stating that the Yucca Mountain site should be disqualified from 
further consideration as a repository based on criteria established in 
the DOE's guidelines for repository site recommendation that were 
enacted pursuant to the Nuclear Waste Policy Act of 1982 and remain in 
effect today. The technical basis for disqualification was cited from 
DOE and other site data and analyses. Data and information presented in 
DOE's subsequently released Viability Assessment serves to confirm our 
finding that the site meets the guidelines' provision for 
disqualification due to rapid groundwater flow that would carry 
released radionuclides through Yucca Mountain and to the accessible 
environment. Despite clear information to the contrary in the Viability 
Assessment and in later DOE documents, Secretary Richardson responded 
that the disqualifying condition is not met. He said that average 
groundwater travel time from the repository to the accessible 
environment is greater than the required minimum 1,000 years. HR 45 
would moot this critical safety criterion by eliminating the existing 
site recommendation guidelines and the required factors which are used 
to qualify or disqualify a candidate repository site.
    With DOE's recent understanding that there are fast pathways for 
groundwater movement through Yucca Mountain, it revised its repository 
performance assessment code for use in the Viability Assessment and 
revised its safety strategy for a Yucca Mountain repository. The 
original notion of a geologic repository was that the natural features 
of the site, its geology and hydrology, would serve a significant role 
in assuring long-term isolation of the waste, and that engineered 
barriers would be employed to enhance the site's waste isolation 
capabilities. Now, the Yucca Mountain safety strategy relies nearly 
entirely on the predicted long lifetime of the metal waste containers 
in the repository, and then as the containers fail the released waste 
is intended to be diluted in the groundwater as it travels to locations 
where it can be pumped for human consumption and use. New information, 
presented last month to the U.S. Nuclear Waste Technical Review Board 
by DOE, indicates that the Yucca Mountain site's natural barriers to 
waste release only account for a fraction of a percent of the predicted 
repository performance, and the engineered waste container is the 
primary functional barrier. As the containers fail, mainly due to 
corrosion, increasing amounts of radionuclides will be released to the 
groundwater, and the predicted average peak dose to humans will be 
approximately 250 times the limit set by the Safe Drinking Water Act.
    The Yucca Mountain site, according to all current data will not 
function as a geologic repository. Instead, if developed, it would be 
an Underground engineered repository until the engineered barriers 
fail. With failure, the resulting doses would be totally unacceptable, 
for health and safety reasons, if they were intended to be imposed on 
the public today. HR 45's provision for a maximum dose standard of 100 
millirems per year to an average individual in the vicinity of the site 
represents a standard 25 times greater than the dose limit of the Safe 
Drinking Water Act. This too, in our view, is an unacceptable risk to 
the public coming from just one component of the nuclear fuel cycle. 
This is an especially important consideration in view of new 
information about plutonium and tritium migration at unexpectedly long 
distances from underground nuclear weapons test locations at the Nevada 
Test Site. Some of these contaminants, once they exit the Test Site 
boundary will add to the radionuclide concentration in the same aquifer 
affected by releases from a Yucca Mountain repository, further 
increasing the predicted doses to the public.
    Broad ranges of uncertainty plague the calculated performance 
assessment for a Yucca Mountain repository. The Viability Assessment 
indicates that the uncertainty associated with the waste package 
lifetime projections is a factor of about 1,000 fold, and the 
uncertainty in the total performance assessment is on the order of a 
factor of 100,000 to 1 million. DOE's primary effort is to reduce 
uncertainty in the engineered system, since it does not believe it can 
further significantly reduce uncertainty in the performance predictions 
of the natural system. DOE continues to express the results of the 
performance calculations as mean values, without elaborating on the 
associated range of uncertainty, which means that a predicted dose of 1 
millirem to an individual per year could actually represent an expected 
range of dose spanning from .001 millirems to 1,000 millirems. The 
lower portion of the range might be an acceptable dose, while the upper 
range doses certainly are not acceptable. It does not appear that the 
uncertainties associated with the Yucca Mountain repository performance 
calculations will be reduced significantly at the time the Secretary's 
suitability determination and site recommendation is scheduled to be 
made. This casts serious doubt on the use of the Viability Assessment 
to support any decision to continue site characterization and 
expenditures of the Nuclear Waste Fund on the Yucca Mountain site.
    Seismicity and earthquake impacts have been generally relegated by 
DOE to be design issues for a Yucca Mountain repository, including the 
surface facility during the operations phase. At issue is the 
credibility and feasibility of designs for both underground and surface 
facilities to withstand safely a possible Magnitude 7 earthquake in the 
vicinity of the site, and the strong ground shaking predicted to occur 
sometime in the next 10,000 years by the Viability Assessment technical 
bases information reports. As you may have heard, a swarm of earthquake 
activity has occurred during the past month on the Nevada Test Site, 
with the largest registering Magnitude 4.7, and eight events greater 
than Magnitude 3.0 in a four day period. These earthquakes have 
occurred on the eastern end of the Rock Valley Fault, one of the most 
active faults on the Test Site. Swarms of earthquakes on the western 
end of this fault, near Yucca Mountain are commonplace. I have attached 
recent press accounts of these earthquakes to my statement.
    During the period 1976 to 1996, within a fifty mile radius of Yucca 
Mountain there have been over 620 recorded earthquakes with a magnitude 
greater than 2.5. The largest of these, with a magnitude of 5.6, 
occurred on June 29, 1992 at Little Skull Mountain, a few miles from 
the Yucca Mountain site. This earthquake, on a fault near the Rock 
Valley Fault, caused damage to the DOE's Yucca Mountain Field 
Operations Center at the Test Site.
    Independent researchers from the California Institute of Technology 
and Harvard University recently reported that their investigations in 
the Yucca Mountain region indicate tectonic strain and earth crustal 
deformation is more than ten times greater than previously assessed by 
the Yucca Mountain Project. This could lead to more frequent and larger 
earthquakes than previously predicted for the Yucca Mountain area, and 
a greater probability of recurrence of volcanic activity that could 
impact the repository site. Further research is being carried out by 
these scientists and the Nevada Bureau of Mines and Geology under a 
cooperative agreement with DOE.
    It is noteworthy that, under current Nuclear Regulatory Commission 
regulations regarding earthquake potential, a nuclear power reactor 
would not be licensable at the Yucca Mountain site, and an Interim 
Storage Facility as proposed by HR 45 would be subject to the same 
safety regulations. The apparent proposed location of the Interim 
Storage Facility on the Test Site lies between the Yucca Mountain site 
and the location of the 1992 earthquake and the Rock Valley Fault.
    Aside from earthquake safety concerns associated with the Interim 
Storage Facility proposed by HR 45, operation of the facility would 
begin transportation of high-level nuclear waste from the nation's 
nuclear power reactors and DOE defense facility locations to Nevada, 
based on the apparent assumption that the Yucca Mountain repository 
site will be found suitable and receive a license for development and 
operation of a repository. Not only does this assumption incorrectly 
prejudge the technical suitability of the site, as discussed above, but 
it encourages approval to begin development of an unsafe repository. If 
the repository is not approved or developed, the waste would have to be 
moved again to some future disposal location, thus increasing 
transportation risks to the public. As it is, transportation of the 
thousands of shipments of waste to Nevada over a thirty year period 
will impact 43 states, and more than 50 million Americans within a one 
half mile of the highway and rail routes.
    Transportation risks are exacerbated by the evolving threat from 
terrorist action or sabotage. Spent fuel and high-level nuclear waste 
trucks and trains will make for new and potentially attractive targets, 
especially in the many urban areas through which they must pass en 
route to a Nevada facility.
    The cost of this legislation poses another major problem. An 
independent cost assessment, released in February 1998, was conducted 
by a team of experts with oversight by a major national accounting 
firm. The report estimates the total cost of the repository and interim 
storage system envisioned by HR 45, using procedures similar to those 
employed by DOE in its Total System Life Cycle Cost evaluations, and 
concludes that the total cost for development, operation, and closure 
to be $53.9 billion in 1996 dollars. The Nuclear Waste Fund, at 
maximum, will generate only about half of the necessary funds. It is 
unacceptable that the American taxpayer should have to bear the burden 
of paying billions of dollars for this misguided and risky program that 
was originally intended to be one of full cost recovery.
    The development and operation of interim storage and repository 
facilities in Nevada and the transportation of spent fuel and highly 
radioactive materials to such facilities will also result in 
significant socioeconomic impacts. These impacts will be felt most 
acutely by Nevada's tourism-based economy, but they will also affect 
cities and communities all across the country should there be accidents 
or incidents involving nuclear waste shipments, as there almost 
certainly will given the magnitude and duration of the shipping 
campaign.
    In Nevada, the impacts from disruptions of the tourism economy due 
to real or perceived risks from repository or interim storage-related 
activities could run into the hundreds of millions of dollars depending 
on the nature of the precipitating event, its location (i.e., within 
the Las Vegas metropolitan area), the intensity of media attention 
given to it, and other variables.
    Similar economic disruptions are clearly possible in any of the 
hundreds of major metropolitan areas through which waste shipments will 
pass and in rural areas that are especially vulnerable to radiation-
driven impacts (i.e., such as agricultural or ranching areas that could 
be either contaminated or stigmatized as a result of an accident or 
incident).
    HR 45 is an unacceptable bill for Nevadans because it promotes 
unprecedented health and safety risks to current and future Nevadans--
at levels no other citizens of the nation are expected or required to 
endure. HR 45 is an unacceptable bill for the nation because it imposes 
unnecessary radiation risks from normal transportation operations and 
accidents on a significant portion of the population.
    I urge rejection of HR 45 in the interest of protecting the health 
and safety of Nevadans and all Americans.
    Thank you for the opportunity to present my views and those of my 
fellow Nevadans to this Subcommittee on a matter of critical importance 
to my state and the nation.

    Mr. Barton. That is out of order, Mr. Governor. Good try.
    The Chair would thank the distinguished Governor for his 
statement, both written and verbal. We take what you have said 
very seriously.
    Mr. Guinn. Mr. Chairman, in my anxiety I forgot one thing I 
must do quickly, if you would allow me. I did bring a signed 
resolution from our legislative body who is in session, both 
the senate and the house, where it passed against H.R. 45, 19 
to 1 in the senate and 32 to 0 in the assembly, and I would 
like to provide you copies of that.
    Mr. Barton. Without objection. The chair would ask 
unanimous consent. I assume there is no objection. Without 
objection, so ordered.
    The gentleman from Texas.
    Mr. Hall. I was just going to say if you acceded to my 
request, we would have held this hearing in Las Vegas. The 
Governor would be making the terms about how long he could 
speak.
    Mr. Barton. I couldn't afford to hold this hearing in Las 
Vegas.
    We are going to now recognize the senior Member of the 
House delegation for 5 minutes, and then Ms. Berkley for 5, and 
then Mayor Phillips for 5.
    Congressman Gibbons, your written statement is in the 
record. We welcome you to summarize that for 5 minutes.

  STATEMENT OF HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Mr. Gibbons. Thank you, Mr. Chairman. I appreciate the 
opportunity, and I will try to summarize my testimony to be as 
brief as possible.
    To begin with, Mr. Chairman, let me say that H.R. 45 is a 
death sentence on Nevada that we cannot live with. Nor is it a 
sentence that America should impose upon the people of this 
country, and especially the people of Nevada. It is a safety 
issue. And H.D. Wells once said, human history becomes more and 
more a race between education and catastrophe. Let me say that 
I dare anyone in this room to point to me any structure that 
this human race has ever built that has lasted 10,000 or more 
years.
    What we engineered just 30 years ago has been proven today 
oftentimes to be unsafe and of poor technology, whether it is 
buildings that we design or airplanes, anything that has been 
engineered. Technology seems to change with time. I ask each of 
you here in this committee that if this nuclear waste were 
coming to your back yard, what concerns, what issues would you 
like to see ensured, recovered adequately with sound science to 
give you the comfort to know that it was coming to your back 
yard safely?
    I dare say that those of you who are supporting this bill 
probably are supporting it because you do not want it in your 
back yard. No one wants this in their back yard. And this bill 
circumvents and shortchanges many environmental protections 
that this Congress and the American people decided were 
necessary to give the confidence of safety not just to the site 
itself, but to the transportation route along which this 
material will travel.
    Mr. Barton. Could the gentleman suspend for just a second? 
This is one 15-minute vote. I have sent a Member over to vote. 
We are going to try to continue the hearing, to let you all 
know that. We are not going to suspend. So continue, Mr. 
Gibbons.
    Mr. Gibbons. Let me add to this, if you look at the bill, 
if you look at the technology that has been the core basis of 
shipping this material from the current sites as proposed to 
Nevada, those casts have not been certified as being exposed to 
the complete degree and safety traumas that would--or may be 
exposed to those in any accident that may occur along the way, 
and we see a number of times railway accidents, highway 
accidents which are violent and high-temperature fires 
resulting which could breach one of these casts.
    To that regard, let me just tell you that each one of these 
rail casts holds 24 nuclear fuel assemblies, and each fuel 
assembly contains 10 times the radioactivity of the Hiroshima 
bomb. If it were to have an accident, breach the cast, in your 
community, the catastrophe would be overwhelming in terms of 
human life, property damage and the cost of cleanup to this 
Nation.
    It creates several environmental concerns that shortcut the 
ongoing studies of the current site characterization study 
taking place at Yucca Mountain. It revokes the regulations that 
establish scientific guidelines for determining site 
suitability such as ground water movement, lime stability, and 
geologic stability.
    Beyond the circumvention of these national environmental 
laws, Yucca Mountain must be disqualified in itself 
scientifically on three very important reasons, one being that 
rainwater less than 50 years old has been detected in the 
underground site they are looking at. The Nuclear Waste Policy 
Act, part of this bill and the premise of this bill, states 
ground water travel time to the repository must take no less 
than 1,000 years. Here we have ground water reaching the site 
in 50 years. I am not a mathematician. My colleague from 
Georgia mentioned that math is one of his expertises, but I can 
see 50 is far short of 1,000.
    The second reason of disqualification, the geologic 
barriers of Yucca Mountain will not limit the radionuclide 
releases that allow for this material to pollute ground water 
supplies in the region. And again, this should be a show-
stopper and disqualification scientifically.
    And the last thing I want to bring up here today, since the 
beginning of the year, and you have heard the Governor of our 
State talk about this, there have been just in 1 month 13 
earthquakes in this area. Seven of those have the magnitude of 
3 on a Richter scale or higher. This shouldn't surprise anyone 
on this who happens to have any small degree of acumen for 
science, because when you talk about Yucca Mountain, Yucca 
Mountain is a mountain. It didn't get there some placid 
tectonic event. It got there because of faulting and other 
geologic tectonic movement which is currently ongoing and will 
continue to ongo this process over the next year, 10 years, 
thousand years, or a hundred thousand years. And let me say the 
DOE has a responsibility to pay close attention to this fact.
    I only ask that this committee do what is right to provide 
for the safety of America, to provide for the safety of the 
people of Nevada in looking at this issue, in looking at the 
fact that Yucca Mountain is unsuitable as a site for storage, 
whether it is temporary or permanent.
    Mr. Chairman, I will submit my complete testimony for the 
record. Thank you very much.
    [The prepared statement of Hon. James A. Gibbons follows:]
   Prepared Statement of Hon. James A. Gibbons, a Representative in 
                   Congress from the State of Nevada
    Mr. Chairman: The issue is safety! H.G. Wells once said that human 
history becomes more and more a race between education and catastrophe. 
Nothing in the history of mankind has withstood the test of 10,000 
years.
    What was state of the art technology and engineered as safe even as 
late as 1970, has proven not to be a safe solution today. Let's not 
allow short term safety issues to become serious, long term problems 
hundreds of years from now.
    Let me begin by saying, on behalf of myself and the constituents of 
Nevada, that I appreciate the opportunity to testify before your 
subcommittee this morning.
    Few, if any problems have become more challenging in recent years 
than the disposal of nuclear waste.
    I believe that certain standards based on sound science along with 
the protection and welfare of this nation's citizens, should be the 
fundamental threshold when we address nuclear waste storage.
    H.R. 45, the Nuclear Waste Policy Act of 1999, will mandate upon 
the state of Nevada and this nation, the transportation of high level 
waste while failing to address the issues of safety and general well-
being of its citizens.
    H.R. 45 will open the door to nuclear waste transportation on a 
scale unprecedented in history.
    The deadliest materials ever created would hit the nation's roads 
and rails, bringing with them the risks of transportation accidents of 
the most lethal proportions.
    Cask safety standards fail to address the full range of trauma to 
which a cask may be exposed in an accident, and regulations do not even 
require testing of full-scale models to ensure compliance.
    The bill only mandates that shipping begin no later than June 30, 
2003 and that packages have been certified for such purposes by the 
Nuclear Regulatory Commission.
    Nevada has long been targeted as the nation's nuclear testing and 
dumping ground, although it has no nuclear reactors of its own, and 
more than three quarters of the nation's reactors are east of the 
Mississippi River.
    However, I don't believe that this is just a Nevada issue. Many 
states will be directly affected by the rail and trucking 
transportation routes.
    A high speed accident, near any one of your districts' communities, 
could unseat a valve or damage a seal, releasing radioactive 
particulates into the environment. Each rail cask holds up to 24 fuel 
assemblies.
    In terms of radioactivity, each fuel assembly contains 10 times the 
long-lived radioactivity released by the Hiroshima bomb.
    H.R. 45 also creates several environmental concerns. First, it 
shortcuts the ongoing studies that are currently taking place at Yucca 
Mountain.
    Specifically, by revoking regulations that establish sound 
scientific guidelines for determining site suitability, such as 
groundwater movement, climatic stability and geological stability.
    Not to mention, H.R. 45 preempts the National Environmental Policy 
Act, the Safe Drinking Water Act and any federal, state, or local law 
that is currently inconsistent with the bill.
    Beyond the circumvention of this nations environmental laws, Yucca 
Mountain must be disqualified for at least three other very important 
reasons.
    One being that rainwater, less than 50 years old, has been detected 
in the underground site.
    The Nuclear Waste Policy Act states that the groundwater travel 
time to the repository must take more than 1000 years, or the site will 
be disqualified. Now I'm not a mathematician but I think you can see my 
point.
    The second reason for disqualification is the geologic barriers of 
Yucca Mountain will not limit radionuclide releases, thereby polluting 
groundwater supplies in the region.
    This again meets the conditions for disqualification and is a true 
show stopper.
    Lastly, since the beginning of this year, a little over one month 
ago, there have been 13 earthquakes, and seven of those earthquakes 
with a magnitude of 3 or higher, near Yucca Mountain.
    This shouldn't be a surprise though, because Yucca Mountain, get 
it--MOUNTAIN--is not geologically sound. It's a MOUNTAIN and it's 
MOVING!
    Realize that you don't store nuclear waste in a area that ranks 
third in the country for seismic activity; an area that has had over 
621 earthquakes in the last 20 years; and an area that has had 13 
earthquakes in less than 30 days!
    It is important--in fact it is very important--to point out that 
the scientific merit of these facts are extremely credible.
    Now it becomes my Congressional responsibility to ensure that 
Congress and the Department of Energy does not ignore these facts or 
attempt to alter their regulations.
    This scientific approach dictates that DOE disqualify the site, and 
not the regulations.
    I would ask this Committee and Congress to look past the emotional 
idea that, ``We have to do something with nuclear waste,'' because as 
the bill states, spent fuel can be safely stored at reactor sites.
    We must be united in this common sense fight, We must demand sound, 
credible science!
    The art of political persuasion has no place in this fight. Members 
of Congress and the DOE must look at the hard, scientific evidence that 
proves the site is unsuitable.
    H.R. 45 will also establish a single performance standard regarding 
the amount of annual radiation exposure the surrounding population can 
be exposed to.
    It will also allow the general population in the vicinity of the 
Yucca Mountain site to be exposed to an annual dose of up to 100 
millirems annually, a level four times the amount of exposure allowed 
at current storage facilities.
    The International Commission on Radiological Protection and the 
Nuclear Regulatory Commission, stated that this exposure level is 
associated with a lifetime risk of one excess cancer death for every 
286 exposed individuals.
    As the Environmental Protection Agency Administrator Carol Browner 
wrote, an annual dose of 100 millirems would allow radiation 
``exposures of future generations of Nevadans which are much higher 
than those allowed for other Americans and citizens of other 
countries.'' This is a death sentence that Nevada cannot live with.
    Lastly, as you may know, The Nuclear Waste Technical Review Board, 
an organization created by Congress to provide technical and scientific 
evaluation of nuclear waste storage concluded, in the March 1996 
report, that there is no compelling technical or safety reason to move 
spent fuel to a central facility, and this holds true today.
    If this nonpartisan Review Board, whose purpose was to look at 
irrefutable unbiased science, made this determination, then I believe 
there is no justifiable reason to move nuclear waste from onsite 
storage.
    It becomes evident that several environmental and safety concerns 
must be addressed before we, as federal legislators, and many times the 
guardians of citizen safety and well-being, move forward and mandate an 
unsafe permanent or interim nuclear waste storage facility at Yucca 
Mountain.
    Again, Mr. Chairman I would like to thank you for the opportunity 
to testify before the Energy and Power Subcommittee, and would request 
that you include some additional written information to be added in the 
record as part of my testimony.
    If I can be of any assistance to you or any other member of the 
Subcommittee, please let me know.

    Mr. Barton. Thank you, Congressman. We appreciate your 
leadership on this issue. It is obvious that you care about it 
personally and have been a leader for your State on their 
position.
    We would recognize our junior member Congresswoman Berkley 
for up to 5 minutes, reminding her that you also have to go 
vote if you wish.

STATEMENT OF HON. SHELLEY BERKLEY, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Ms. Berkley. I have the same clock that Congressman Gibbons 
has. I thank you, Mr. Chairman, members of the subcommittee, 
and thank you for allowing me the opportunity to address you.
    Before I begin my testimony, I ask that Senator Richard 
Bryan's testimony be entered into the record.
    Mr. Barton. Without objection.
    [The prepared statement of Hon. Richard Bryan follows:]
Prepared Statement of Hon. Richard Bryan, a U.S. Senator from the State 
                               of Nevada
    Mr. Chairman, thank you for permitting me to testify before the 
Subcommittee today.
    As you know, we in Nevada have a keen interest in the legislation 
before the Subcommittee today--for us, it is literally a life or death 
issue.
    The legislation before the Subcommittee today shows a callous 
disregard for the health and safety of Nevadans, and millions of 
Americans across the nation.
    Nevadans have been the unwilling victims of a nearly twenty year 
political campaign orchestrated by the nuclear power industry at the 
expense.of our, and future generations of Nevadans', health and safety. 
Today we are discussing yet another potential chapter in this long and 
disgraceful story.
    The bill before the Subcommittee today is a response to the 
industry's high level of frustration with the federal high-level waste 
program--but it is a poorly conceived, selfserving, and irresponsible 
one.
    Nevadans had no part in creating the commercial nuclear power 
industry's waste problem, but are nevertheless expected to bear the 
full burden of the industry's environmental legacy.
    Now, as scientific data begins to bear out our long held position 
that the site cannot be found suitable, the industry has proposed yet 
another round of political gerrymandering to again rewrite the rules, 
and attempt to overcome the scientific and engineering obstacles to 
shipping its waste to Nevada.
    The industry knows, however, that to overcoming the scientific 
obstacles to shipping its waste to Nevada is no small task--and that is 
why this legislation is such an environmental travesty.
    In addition to siting an unnecessary and unsafe ``interim storage'' 
facility in Nevada, the legislation makes a mockery of decades of 
bipartisan environmental protection statutes.
    It establishes a radiation release standard far less protective 
than any other federal, or international, standard. The legislation 
proposes to subject Nevadans to radiation releases 25 times that 
allowed under the Safe Drinking Water Act, and more than 6 times that 
allowed for the WIPP facility in New Mexico.
    It guts NEPA, the primary federal statute designed to provide 
confidence to the public in federal environmental activities.
    It places 50 million citizens in 43 states along transportation 
routes for the waste shipments in harm's way. The state of every member 
of this Committee is along these transportation routes.
    It provides a multi-billion dollar windfall to nuclear utilities, 
who are attempting to dodge their financial responsibility for the 
storage and disposal of their waste.
    Finally, the bill before the Subcommittee adds to the already 
dangerous and misguided nuclear repository program a new, even more 
irresponsible ``interim'' storage program.
    Interim storage at the NTS is not only unnecessary, it seriously 
compromises the characterization of the Yucca Mountain site as a 
permanent repository. Siting centralized interim storage at the NTS 
prior to an objective, science based evaluation of Yucca Mountain 
prejudges the outcome of the characterization process, and will 
eliminate any hope of public confidence in the study the Yucca Mountain 
site.
    The sole purpose of this legislation is to shift the burden of the 
nuclear power industry's waste problem to the people of Nevada and the 
American taxpayer. Under this legislation, the utilities are the 
winners, and Nevadans, and every other citizen with even a shred of 
respect for the environment, are the clear losers.
    Despite the ``rosy scenario'' of the Department of Energy's 
``viability assessment,'' it would be difficult to find anyone today 
willing to wager that Yucca Mountain will ever be licensed. Despite the 
Department of Energy's best efforts to explain them all away, 
scientific data continue to build and cast doubt on the ability of the 
Department to ever demonstrate that the site can safely contain high 
level waste.
    The geology underground has proven difficult to model; recent data 
at the adjoining NTS have demonstrated far faster migration of 
plutonium underground than DOE scientists have predicted.
    The important question of water seepage through the site remains 
open; higher than expected levels of Chlorine 36 at the repository 
level can only be explained by water penetration from the surface in 
the last few decades.
    Volcanic activity in the area appears to have been far more recent 
than previously estimated.
    Seismic activity--a particularly important issue in relation to 
interim storage--continues to be very active. Yucca Mountain, and the 
NTS, lie within the second most active seismic area in the continental 
United States. Well over 600 earthquakes registering over 3.0 on the 
Richter scale have been recorded in the area in the past twenty years--
including six last month, two of which registered over 4.5.
    The area around Yucca Mountain and NTS is a constantly shifting, 
very active geological formation--hardly a suitable site for an 
underground repository, and even less suitable for an above ground 
``interim storage'' facility.
    The cost of the repository--without even including any new interim 
storage--has gone through the roof, and will outstrip the current 
projected revenue of the Nuclear Waste Fund by tens of billions of 
dollars. The DOE's current estimate of the cost to complete the 
repository--which does not include interim storage-is a staggering 
$36.6 billion.
    The legislation before the Subcommittee today faces little or no 
chance of enactment. It is opposed by every major environmental group. 
Both the Department of Energy and the Nuclear Waste Technical Review 
Board oppose centralized interim storage, as well as the bill's 
necessary diversion of resources away from characterization of Yucca 
Mountain. The President will veto the bill, and we will have the votes 
in the Senate to sustain the President's veto.
    I urge the Subcommittee to reject this misguided legislation.

    Ms. Berkley. This hearing puts me in mind of that old 
saying everything has been said, but not everyone has said it. 
I come before you to give voice to the well-founded fears and 
concerns of the citizens of the Las Vegas Valley, which is my 
home district, and the citizens of the entire State of Nevada.
    Over 1.5 million Nevadans live within an hour or so drive 
of the so-called temporary high-level nuclear dump proposed by 
H.R. 45. This bill would dump over 70,000 tons of incredibly 
lethal substance in one location in southern Nevada. Those 
Nevadans, mothers like me, fathers, sons, daughters, and 
grandparents, deserve the same health and safety protections as 
every other American. H.R. 45 would deny equal protection under 
the law to the citizens of Nevada and future generations of 
Nevadans. But I will also discuss how this bill places 
Americans in all parts of the country at risk.
    When you live in a State that has been singled out as a 
target for a nuclear payload, you give close attention to this 
issue. Nevadans know just how toxic, how dangerous, how 
menacing high-level nuclear waste really is. To give you some 
idea, a person standing next to an unshielded spent nuclear 
fuel assembly would get a fatal dose of radiation within just 3 
minutes. Under H.R. 45, the concentrated level of deadly 
radiation at one place in my home State staggers the 
imagination. H.R. 45 would force all of the nation's high-level 
waste on the people of one State, a State where there is not 
even one nuclear reactor.
    For nearly two decades, the nuclear industry and the 
Department of Energy have tried to convince Nevadans that high-
level nuclear waste transportation and storage is safe. Their 
argument basically is we will just stuff this high-level 
nuclear waste into metal cans, screw the lids on tight, and 
there is nothing to worry about. What is wrong with this 
picture?
    Well, if those cans of nuclear waste are so safe, why do 
they have to be shipped from all over the United States and 
dumped in Nevada? That question has haunted Nevadans for years, 
and our concerns have again intensified with H.R. 45. This bill 
would unleash high-level nuclear waste onto the Nation's 
highways and rail lines. It is this issue, that transportation 
of high-level nuclear waste, that binds Nevadans and all 
Americans as potential victims of H.R. 45.
    Americans from all parts of the country would be exposed to 
unacceptable and unnecessary risk because they live near 
highways and railways where the nuke trucks and trains would 
roll. Moving nuclear waste to Nevada would require well over 
100,000 long-haul shipments. Nuclear waste would be speeding 
around the clock every day for 30 years over our roads and 
rails. This should sound a national alarm. The deadly cargo 
would intrude on 43 States and hundreds of cities and towns. 
Fifty million Americans live within just a half a mile of the 
shipping routes. The waste will rumble through Birmingham, 
Alabama; Laramie, Wyoming; Portland, Maine; and the suburbs of 
Los Angeles; Miami, Florida; Kansas City, and St. Louis, 
Missouri. In short, nuclear waste will be on the move all over 
the country for all time for 30 years.
    The Department of Transportation counted more than 99,000 
incidents in which hazardous materials were released from 
trucks and trains from 1987 to 1996 causing 356 injuries and 
114 deaths.
    The Department of Energy has described a plausible crash 
scenario involving high impact and fire that would contaminate 
an area of 42 square miles with radioactive debris. It is truly 
horrifying to picture this happening in a populated area.
    We have been repeatedly told that shipping nuclear waste 
across the country and stashing it at a dump site is safe, but 
let's take a brief look at the history of how the Federal 
Government has handled nuclear projects. The lands around 
nuclear installations at Hanford, Washington; Rocky Flats, 
Colorado; Oak Ridge, Tennessee; Fernald, Ohio, are 
contaminated. The GAO concluded that 124 of our 127 nuclear 
sites has been mismanaged by the DOE.
    Nevadans don't buy into the don't worry, be happy attitude 
toward radiation, and for good reason. I grew up in Nevada. 
Nevadans are proud to volunteer for the patriotic chore of 
playing host to above- and below-ground nuclear weapons 
testing, but the Federal Government never leveled with us about 
the risks. In the 1950's, the government produced films 
advising if people just stayed indoors as clouds of fallout 
drifted through our communities, everyone would be safe. As a 
safety measure, the government suggested that a quick car wash 
would eliminate any pesky radioactive contamination. It seems 
harmless enough if it wasn't for the evidence of a disturbing 
increase in cancer that later traumatized these same 
communities; harmless, perhaps, if above-ground testing didn't 
spread radioactive elements across the country.
    Supposedly safe above-ground nuclear tests were stopped 
when it was proved that radiation was winding up in the bodies 
of American children through the milk that they were drinking. 
Underground testing was supposed to be the safe answer, or so 
the government said. The radioactivity would be trapped 
underground, never to get out except when some of the 
underground shafts burst open spewing radiation into the air, 
and now scientists are finding that plutonium thought to be 
trapped in these test shafts is moving through the ground water 
at alarming speed. So I have a healthy skepticism about Federal 
nuclear programs. My healthy----
    Mr. Barton. Could you summarize? It is amazing in the short 
time you have been in the Congress you are already right at 
home in going beyond the time limit. You are doing very well.
    Ms. Berkley. Yes, Mr. Chairman, I will be brief.
    H.R. 45 would be a terrible and needless mistake. If 
passed, it would be fought in court by Americans across this 
country. I would stand with them in court or on the roads and 
the rails if necessary to stop this disastrous policy. Thank 
you very much for your attention.
    Mr. Barton. Thank you. Thank you, Congresswoman.
    Ms. Berkley. May I submit my full remarks for the record.
    Mr. Barton. Your entire statement is in the record.
    [The prepared statement of Hon. Shelley Berkley follows:]
    Prepared Statement of Hon. Shelley Berkley, a Representative in 
                   Congress from the State of Nevada
    Mr. Chairman, Members of the Subcommittee: Thank you for allowing 
me the opportunity to address you. This hearing puts me in mind of that 
old saying everything has been said but not everyone has said it.
    Before I begin my testimony I ask that Senator Richard Bryan's 
testimony be entered into the record. I come before you to give voice 
to the well-founded fears and concerns of the citizens of the Las Vegas 
Valley--which is my home District--and the citizens of the entire state 
of Nevada.
    Over one and a half million Nevadans live within an hour or so 
drive from the so-called temporary hi-level nuclear dump proposed by 
H.R. 45. This bill would dump over 70,000 tons of an incredibly lethal 
substance at one location . . . in southern Nevada. Those Nevadans--
mothers, like me . . . fathers, sons, daughters, and grandparents 
deserve the same health and safety protections as every American. HR 45 
would deny equal protection under the law to the citizens of Nevada and 
future generations.
    But I will also discuss how this bill places Americans in all parts 
of the country at risk.
    When you live in a state that has been singled out as the target 
for a nuclear payload, you give close attention to the issue. Nevadans 
know just how toxic, how dangerous, how menacing high level nuclear 
waste really is. To give you some idea, a person standing next to an 
unshielded spent nuclear fuel assembly would get a fatal dose of 
radiation in just three minutes.
    Under H.R. 45, the concentrated level of deadly radiation at one 
place--in my home state--staggers the imagination. H.R. 45 would force 
all of the nation's high-level waste on the people of one state . . . a 
state where there is not even one nuclear reactor.
    For nearly two decades the nuclear industry and the Department of 
Energy have tried to convince Nevadans that high level nuclear waste 
transportation and storage is safe. Their argument basically is, 
``We'll just stuff this high level nuclear waste into metal cans, screw 
the lids on tight, and there's nothing to worry about.''
    What's wrong with that picture? Well, if those cans of nuclear 
waste are so safe . . . WHY DO THEY HAVE TO BE SHIPPED FROM ALL OVER 
THE UNITED STATES AND DUMPED IN NEVADA?
    That question has haunted Nevadans for years. And our concerns have 
again intensified with H.R. 45. This bill would unleash high level 
nuclear waste on to the nation's highways and rail lines. It is this 
issue--the transportion of high level nuclear waste--that binds 
Nevadans with all Americans as potential victims of HR 45. Americans 
from all parts of the country would be exposed to unacceptable and 
unnecessary risk . . . because they live near the highways and 
railroads where the nuke trucks and trains would roll.
    Moving nuclear waste to Nevada will require well over 100,000 long-
haul shipments. Nuclear waste will be speeding . . . around the clock, 
everyday, for 30 years . . . over our roads and rails. This should 
sound a national alarm.
    The deadly cargo will intrude on 43 states and hundreds of cities 
and towns. 50 million Americans live within just a half mile of the 
shipping routes. The waste will rumble through Birmingham, Alabama and 
Laramie, Wyoming. Portland, Maine and the suburbs of Los Angeles. 
Miami, Florida and Kansas City and St. Louis, Missouri. In short, 
nuclear waste will be on the move all over the country . . . all the 
time . . . for 30 years.
    The Dept. Of Transportation counted more than 99,000 incidents in 
which hazardous materials were released from trucks and trains, from 
1987 to 1996 . . . causing 356 major injuries and 114 deaths.
    The Dept. of Energy has described a plausible crash scenario 
involving high impact and fire that would contaminate an area of 42 
square miles with radioactive debris. It is truly horrifying to picture 
this happening in a populated area.
    We've been repeatedly told that shipping nuclear waste across the 
country and stashing it at a dumpsite is safe. But let's take a brief 
look at the history of how the federal government has handled nuclear 
projects. The lands around nuclear installations at Hanford, Washington 
. . . Rocky Flats, Colorado . . . Oakridge, Tennessee . . . Fernald, 
Ohio . . . are contaminated. The GAO concluded that 124 of our 127 
nuclear sites had been mismanaged by the DOE.
    Nevadans don't buy into the ``don't worry, be happy'' attitude 
toward radiation. And for good reason.
    I grew up in Nevada. Nevadans were proud to volunteer for the 
patriotic chore of playing host to above and below ground nuclear 
weapons testing. But the federal government never leveled with us about 
the risks.
    In the 1950's the government produced films advising if people just 
stayed indoors as clouds of fallout drifted through communities, 
everyone would be safe. As a safety measure, the government suggested 
that a quick car wash would eliminate any pesky radioactive 
contamination.
    It seems harmless enough . . . if it weren't for the evidence of a 
disturbing increase in cancer that later traumatized these communities. 
Harmless, perhaps, if above ground testing didn't spread radioactive 
elements across the country. Supposedly ``safe'' above ground nuclear 
tests were stopped when it was proved that radiation was winding up in 
the bodies of American children through the milk they were drinking.
    Underground testing was supposed to be the safe answer . . . or so 
the government said. The radioactivity would be trapped underground--
never to get out . . . except that some of the underground shafts burst 
open, spewing radiation into the air.
    And now, scientists are finding that plutonium, thought to be 
trapped in those test shafts--is moving through the ground water at 
alarming speed.
    So I have a healthy skepticism about federal nuclear programs.
    My healthy skepticism persuades me that H.R. 45 is in fact a Trojan 
Horse for permanently dumping high level waste in Nevada. Make no 
mistake, there is nothing ``temporary'' about HR 45. This bill is a 
political vehicle to get the waste to Nevada, to be conveniently parked 
next door to Yucca Mountain, the site of a failing effort to justify a 
permanent dump.
    The past year has been marked by a quickening pace of scientific 
evidence that clearly eliminates Yucca Mountain as a safe place for 
nuclear waste. Water will saturate the dump. Those who thought Yucca 
Mountain would be dry for 10,000 years are stunned to discover that 
water is filtering through at an alarming rate.
    Yucca Mountain has been, . . . is, . . . and always will be jolted 
by earthquakes. In recent days, seismologists described swarms of 
earthquakes that rocked the area. To visit Yucca Mountain is to feel 
the earth move.
    And, a growing number of scientists fear that a Yucca Mountain 
dump, intended to isolate deadly radioactivity forever, may well 
explode into an environmental apocalypse of volcanic eruptions.
    It is not nice to try to fool Mother Nature. Where earthquakes, 
water, and volcanic activity are permanent dangers, we must not build a 
high level nuclear dump.
    The nuclear power industry should immediately cancel the Yucca 
Mountain project. The billions of dollars coming from ratepayers would 
be better spent finding a sensible and safe solution to nuclear 
disposal. Instead, we have HR 45. This bill exists because the nuclear 
power industry sees that the only way to keep the Yucca Mountain 
Project alive is to build a temporary dump next door.
    With the waste were stacked up at a temporary dump near Yucca 
Mountain, there would be a powerful motivation to make Yucca Mountain 
work out--somehow. Under those circumstances, I fear that the health 
and safety of current and future generations would be jeopardized for 
the sake of expediency. As the Nuclear Waste Technical Review Board has 
clearly stated, a temporary facility at the Nevada Test Site could 
prejudice the later decisions about the suitability of Yucca Mountain.
    HR 45 has its roots in expediency over public health and welfare.
    HR 45 throws out existing radiation safety standards . . . and 
replaces them with dangerous levels of radiation exposure that would be 
quote ``acceptable.'' The temporary dump can not meet the current 
standards, so HR 45 permits Nevadans to be exposed to 4 to 6 times the 
amount of radiation allowed at other waste sites. HR 45 allows exposure 
25 times the level set by the Safe Drinking Water Act.
    EPA Administrator Carol Browner said HR 45 would authorize 
``exposures to future generations of Nevadans which are much higher 
than those allowed for other Americans and citizens of other 
countries.''
    Congress, in 1982, called for 9 potential nuclear storage sites to 
be assessed. By 1987, due to political considerations . . . not 
scientific findings . . . Yucca Mountain alone was targeted for site 
characterization.
    As it became increasingly clear Yucca Mountain is not suitable 
under the stringent and responsible law Congress passed in 1982, the 
rules have repeatedly been relaxed in favor of Yucca Mountain and 
against health and safety.
    And now comes HR 45, a bill which achieves nothing but risks the 
health and safety of current and future generations. The Nuclear Waste 
Technical Review Board advises that there are no compelling reasons to 
move the nuclear waste in the short term.
    HR 45 would be a terrible and needless mistake. If passed, it will 
be fought in court by Americans across the country. I would stand with 
them in court--or on the roads and rails, if necessary to stop this 
disastrous policy.
    Thank you.

    Mr. Barton. The Chair would recognize the honorable mayor 
of Caliente Kevin Phillips.
    The Chair is going to give the gavel to the vice chairman 
Mr. Stearns, and I will return.

  STATEMENT OF HON. KEVIN PHILLIPS, MAYOR, CITY OF CALIENTE, 
                             NEVADA

    Mr. Phillips. Mr. Chairman and members of the subcommittee, 
it is an honor for me to be here. My name is Kevin Phillips. I 
am the mayor of the city of Caliente, Nevada. May I comment 
that I would be the first to recognize at that table that I am 
the smallest of the smallest hubcaps surrounded by big wheels, 
but it is an honor for me to come and speak before you, and I 
consider myself somewhat uniquely qualified to address this 
body and let me say why.
    First, I represent a very local government perspective 
relative to this issue, particularly out of rural Nevada. My 
colleagues and fellow Nevadans have amply expressed the 
position of the State relative to this issue, but mine is from 
a local government perspective.
    We find today that that which was talked about in 1986 in 
the draft environmental assessment is still true, that the 
Union Pacific Railroad will in all likelihood be the main 
transportation corridor, if you will, for the transport of 
spent fuel to the Nevada test site in Yucca Mountain. My city 
sits at the very apex of that funnel.
    The second reason is that we have independently become 
highly educated over this issue. The Congress has provided for 
us funding through the Nuclear Waste Policy Act because we are 
one of 10 units of local government to independently study all 
things related to this issue, and I have made that a serious 
quest over the past 5 years. We have examined all sides of the 
matter, all that is given from the State of Nevada Nuclear 
Waste Project Office, from the Department of Energy, and from 
our own analyses, and so we come to you, I do, as an 
independent person brought up to speed on this issue.
    Third, I really am apolitical. Out where I live, we all 
take turns serving in various positions, and we consider 
ourselves public servants and not politicians. Meaning no 
disrespect, a politician is one who seeks to do whatever is 
necessary to become reelected. A public servant tries like 
crazy so that that does not happen again.
    Our approach to this issue really is quite simple. We 
believe, and have for some time, that despite the best efforts 
of the State of Nevada, ultimately the will of the Nation will 
build a repository at Yucca Mountain, Nevada, and that will 
become the final resting place for spent fuel and high-level 
radioactive waste.
    To us the situation is quite simple. If our delegation 
succeeds in its efforts to stop the construction of Yucca 
Mountain, we in Caliente and Lincoln County have nothing to 
worry about because we will not see the shipments. But if they 
do not, and to us the writing on the wall and, so to speak, the 
Indians on the horizons--I used to enjoy those old Western 
movies--looks quite ominous, and it appears that the odds are 
being stacked and are mounting in that effort. Therefore, we 
say to ourselves, what is the best thing that we can do to be 
prepared?
    You see, if our delegation succeeds, we will merely sit 
back in sleepy Caliente and continue to watch the trains go 
through our town already carrying over 25,000 shipments per 
year of hazardous materials; that if one becomes absolutely 
honest and takes a look at that real risk, not the perceived 
risk, associated with that transport, the materials that 
already provide potential risk to us are exponentially greater 
than that which the transport of spent fuel would provide to 
us.
    So again, our whole purpose here is to ensure that we as 
small communities, the little hubcaps that are the closest to 
the road that have to dodge the real rocks in the road, those 
who don't have the liberty to be 500 miles away in our State's 
capital, nor thousands of miles away in the Nation's capital, 
we are facing the real issues.
    And so with that in mind, we have worked for 12 years to 
become prepared. Our committee has seen the preparation of over 
50 technical reports, and we know from where we speak on this 
issue.
    We were asked specifically to comment about the viability 
assessment. In our judgment, it is just one more indicator that 
the time will come when Yucca Mountain becomes developed. 
Therefore we would hope and would wish that our State would 
prepare with at least a contingency plan.
    It is interesting that Congresswoman Berkley, who resides 
in Las Vegas, is new, and she doesn't perhaps recognize or 
remember that in 1995 former Senator Bennett Johnston laid the 
first bill down in this whole series of things. That bill if 
successful would have actually brought material to the Las 
Vegas Valley. Now if we hadn't perhaps stepped forward and 
suggested some alternative solutions, namely to stop the train 
in Caliente and offload there and follow, frankly, Mr. Bob 
Loux's suggestion from the Nevada Nuclear Waste Project Office 
that from some corridor east of Nevada from the Union Pacific 
Railroad we go directly to Yucca Mountain, thus bypassing the 
Las Vegas Valley, now if we perhaps hadn't come forward or had 
been willing or made that suggestion, then maybe the 
legislation would still be sending the material to Las Vegas.
    I hear the bell. I will conclude.
    [The prepared statement of Hon. Kevin Phillips follows:]
  Prepared Statement of Hon. Kevin Phillips, Mayor, City of Caliente, 
                                 Nevada
    Mr. Chairman, my name is Kevin Phillips. I am mayor of the City of 
Caliente, Nevada. Thank you for inviting me to share a Nevada local 
government perspective on the Yucca mountain project and key aspects of 
HR 45. The positions, which have been adopted by Lincoln County and the 
City of Caliente, have not always appeared politically correct, 
especially in my home State of Nevada. My fellow local elected 
officials and I have for some time been convinced that despite the best 
efforts of the State of Nevada, Yucca Mountain would succumb to the 
will of the Nation and become the final resting-place for spent nuclear 
and high-level radioactive waste. Given this likelihood, the leadership 
of Lincoln County and the City of Caliente has sought for the past 
several years to understand and minimize waste management system risks 
and to understand and maximize potential waste management economic 
benefits. Lincoln County voters have, on two occasions now, confirmed 
to my fellow local elected officials and me that we are approaching the 
nuclear waste issues in a prudent and responsible manner.
    Lincoln County is one of ten units of local government which have 
been designated by the Secretary of Energy as ``affected'' pursuant to 
the Nuclear Waste Policy Act, as amended. What was identified in the 
1986 Yucca Mountain environmental assessment remains true today: 
Lincoln County and the City of Caliente are likely to serve as the 
gateway for most shipments of high-level radioactive waste entering 
Nevada which are destined for storage and disposal at the Nevada Test 
Site. More recently, it has become evident that mutual interests of the 
State of Nevada and DOE to minimize risks to a majority of Nevada's 
residents and the economy of southern Nevada will likely shift said 
risks to residents and businesses of Lincoln and other rural counties. 
These risk minimization objectives have been translated into proposed 
federal legislation now pending before Congress. HR 45 would result in 
construction and operation of a rail to truck intermodal transfer 
facility within the City of Caliente. The bill would also result in 
heavy-haul transport through the County until such time as a rail line 
across Lincoln County were constructed to provide direct rail access to 
the Yucca Mountain site.
    For the past twelve years, Lincoln County and the City of Caliente 
have conducted a joint repository oversight and impact alleviation-
planning program. During this period, the eight-member Joint City/
County Impact Alleviation Committee has diligently sought to provide 
guidance to local repository programs. The Committee, representing both 
geographic and disciplinary diversity, has met no less than 70 times 
and has invested over 1,200 hours of largely volunteer labor to 
understand the implications of the Nation's nuclear waste management 
program to the County and City. Utilizing funding provided by DOE, the 
Committee has overseen the preparation of over 50 reports documenting 
repository system outcomes for Lincoln County and the City of Caliente. 
Topics addressed within these studies include emergency response, 
ethnography, transportation routing, economic/demographic impact 
assessment, media amplification of risks, community development, 
transportation risk assessment, risk communication, tourism impact 
assessment, fiscal impact assessment, and risk perception, among 
others. The numerous research activities sponsored by the County and 
City of Caliente have utilized teams of highly trained and competent 
researchers representing both academic and private entities. The 
results of these studies have been widely communicated to residents 
throughout Lincoln County and in other areas of Nevada. Lincoln County 
and the City of Caliente have utilized this extensive information base 
in formulating and defending positions taken with regard to the Yucca 
Mountain repository program to date.
    With this thorough understanding of the Yucca Mountain project as 
background, Lincoln County and the City of Caliente have initiated a 
review of the Viability Assessment. In my opinion, the Assessment 
appears to assert the likely suitability of Yucca Mountain as a 
licensable repository site. The Viability Assessment confirms the 
County and City contention of the likelihood that Yucca Mountain will 
be developed and operated as a repository for nuclear waste. Our 
cursory review of the VA has reaffirmed the wisdom of the County and 
City focus upon risk minimization and benefit maximization activities.
    With regard to nuclear waste legislation pending before this 
Committee, HR 45 will require that the City of Caliente serve as host 
to intermodal transfer and other spent nuclear fuel transport 
operations. The City has responded to requests by this Committee to 
ensure that HR 45 related risks are minimized and benefits maximized. 
Inclusion by this Committee of City suggested provisions would result 
in a radioactive waste management system which is sensitive to local 
issues. I regret however, that a comprehensive benefits package for the 
State of Nevada remains a missing element to the bill. When developed 
and fully operational, the Yucca Mountain project will afford this 
Nation with nearly immeasurable benefits. In my opinion, Nevada should 
be afforded a benefits package of extraordinary scale. Rather than 
being made to feel as though they have been ``screwed'', Nevada 
residents should be granted every sense that the Nation places great 
value on the service that the State and its populous will render in 
solving the pressing nuclear waste management issue. In addition to 
important and appropriate benefits included for certain local 
governments, HR 45 should be amended to include a bold program of 
benefits for the State of Nevada, perhaps focused at development of 
science and technology related industry on and around the Nevada Test 
Site.
    I would encourage the Committee to add the following additional 
finding to Section 3 of the bill:

the State of Nevada, Lincoln County, the City of Caliente, and Nye 
County are each performing a significant service to the United States 
in resolving a critical national environmental problem for which the 
Nation is indebted and for which equitable and just compensation for 
said service is fully warranted;.

    A new sub-section should be added to HR 45, Title I, Section 101 as 
follows:
OBLIGATIONS OF THE SECRETARY OF DEFENSE.
    (a) The Secretary of Defense shall provide a safe secure corridor 
across the Nellis Range from Lincoln County through Gate 700 onto the 
Nevada Test Site, for the transportation by rail or truck of spent 
nuclear fuel and other high-level radioactive waste.
    Section 201 of the bill should be amended to remove the requirement 
that the Secretary of Energy utilize only heavy-haul transportation. 
Such a requirement may pose unnecessary congestion and vehicular 
conflicts upon Nevada's highways. Because the State of Nevada might be 
compelled to permit each and every heavy-haul shipment, use of such 
vehicles might pose an unnecessary burden upon the State. Further, 
emphasis upon heavy-haul fails to recognize that innumerable shipments 
of spent nuclear fuel have been successfully completed using existing 
legal weight cask technology.
    Section 201 (h) of the bill should be revised to include training 
and equipping of local emergency first responders and hospital staff in 
the City of Caliente.
    Section 203 of the bill should be amended to include a requirement 
that the Secretary of Energy use results of the DOE's Motor Carrier 
Evaluation Program as one factor in selecting transporters of spent 
nuclear fuel and other high-level radioactive waste. Lincoln County and 
the City of Caliente believe that effective risk minimization is only 
possible when DOE utilizes the best of the best motor carriers. In 
addition, the Secretary should be required to ensure that selected 
motor carriers have in place effective driver and operations team 
training and quality assurance programs.
    HR 45 should include an amendment to Section 114 of the Nuclear 
Waste Policy Act, which would require inclusion of the comments of 
affected units of local government, in any site recommendation report 
submitted by the Secretary to the President.
    Let me close by encouraging the Committee to recall what I and my 
fellow local elected officials have been through these past few years. 
As a result of our belief that the Nation was committed to disposal of 
spent nuclear in Nevada we adopted Joint Resolution 2-95 which provided 
specific recommendations to the Secretary of Energy. In response to our 
passage of the resolution, the Nevada Attorney General filed a lawsuit 
to remove the entire Caliente City Council and two Lincoln County 
Commissioners from office. After being censored by the Nevada 
Legislature and facing a stiff legal defense by the County and City, 
the Attorney General dropped her lawsuits. One of the Commissioners 
whom the Attorney General sought to remove from office subsequently 
survived a recall vote by an overwhelming margin.
    My fellow local elected representatives and I have paid a heavy 
financial and emotional price to defend our fiduciary responsibility 
and right to work with the Secretary of Energy and the Congress to 
ensure that as legislation such as HR 45 is considered, the public 
health, safety, and welfare of our residents is protected and enhanced. 
I trust you will take seriously our recommendations for further 
amendment of HR 45.

    Mr. Stearns [presiding]. Well, Mr. Mayor, we thank you for 
your testimony. I think I am going to ask maybe just one 
question, sort of hypothetical for the delegation, and you 
really don't have to answer it because it is hypothetical. If, 
in fact, that all the scientific evidence comes out and it 
appears that it is a safe site, and I know we can't assume that 
everything is 100 percent with scientific evidence, but let's 
say there is a preponderance of evidence to show that from the 
scientific evidence, that indeed the repository at Yucca 
Mountain would be safe, would you still be objecting to this 
bill H.R. 45? Is your case basically on scientific evidence? 
Because the next case would be in terms of tourism, because the 
potential impact of having the site there affects the tourist 
economy is some of the arguments we hear. But we have had 
nuclear tests at the Nevada test site, and obviously it hasn't 
hurt tourism, and it hasn't hurt the population, and so whether 
it is scientific evidence or whether it is the perception to 
the tourist industry, both those arguments are being made.
    So I guess the question, Governor, is hypothetically 
whether, you know, your case is still strong if the scientific 
evidence is overwhelming. And if you want to do this in a 
written statement, I can understand, because this is a 
hypothetical.
    Mr. Guinn. Can I tell you one thing? I have been Governor 
now for something like 32 days. One thing I have learned is not 
to try to answer hypothetical questions.
    I would say to you we are still looking for scientific 
data, and so far, after $6 billion and the fact that the 
Federal Government through the Department of Energy cutoff all 
of our funds over a year ago for us to even look at what they 
had in a scientific fashion has left us kind of standing on our 
own. So we would like to see scientific data that we could 
analyze, and we are not getting that opportunity at this time.
    So I would be happy to answer for you in a written form 
with more details to how it would affect us, but certainly the 
people of Nevada, we are not convinced over the last 12 plus 
years of high-level, intensive work that has gone on. Plus, 
over the last 20 years since this bill has been discussed and 
talked about in the State of Nevada, we are not convinced that 
it is safe for us as Nevadans, and we don't think it is safe 
traveling through at the level we are talking about.
    The mayor and I are certainly coming from two different 
angles here, there is no doubt about it, but in my position for 
the State of Nevada, we are not ready to accept anything we 
have seen so far, and especially in light of the fact that it 
seems very suspicious that we had our funds cut off.
    Mr. Stearns. Mr. Mayor, I want to ask you, since you have 
sort of an opinion that is a little different than the 
Governor, do you think, in your opinion, and this, again, you 
might not have enough information, do the people in your town 
or the people that you are dealing with have more of a sympathy 
to your point of view? I guess what I am asking is what do you 
see the people of the State feeling? What is your sense?
    Mr. Phillips. With due respect, may I comment briefly and 
let the Governor know that I am with him in the comments he 
made here certainly. Nevada deserves very much to do oversight 
and have funding from the Federal Government for that to 
happen. It is our position and belief after observing this 
thing that that oversight cannot be politically based, and that 
which has happened in the past. I strongly suggest that Nevada 
be granted oversight funds, but that it come through the 
university system so we do get science and not politics 
involved with the issue.
    In response now to your direct question to me, Mr. 
Chairman, we are fortunate in Lincoln County in that we have 
4,000 people there. The task of educating those 4,000 is much 
simpler. Therefore, we have made great efforts to bring our 
people up to speed. A vote reflected in the last election on 
this issue, an advisory vote, was overwhelmingly in favor of us 
continuing the position which we take, which is to understand 
and minimize risk, understand and see that mitigation occurs, 
and understand and maximize benefits associated to that.
    Mr. Guinn. And I would say, Mr. Chairman, that the mayor is 
talking about a specific location, local community, and in 
looking at the indication of all of our people, which is 
something like 78 percent are absolutely vehemently against 
storage at Yucca Mountain of high-level waste, 78 plus percent 
of our people overall, it has been very consistent, it is going 
up. It has gained about 12 or 15 points in the last few years, 
and I would say to you that that is not going to change.
    We still believe very strongly that there are alternative 
methods. We think that when you can store something that is 
being produced at a specific location for a hundred years and 
that has been declared safe by the science that we have seen 
through methods that we already have, then we believe that 
additional research as to what to do with this material will be 
developed through this great country of ours in a shorter 
period of time than that.
    Mr. Stearns. Well, I am going to conclude and just make an 
observation. Mayor Phillips has pointed out, though, that the 
actual town where the depository will be transferred from the 
train to the trucks, these people seem to have an understanding 
that ultimately it is going to happen. Two, they are sort of 
sympathetic to what we are trying to do and seem to be fairly 
well-educated on the issue. Now, the 78 percent figure you 
used, I don't know whether these people have as much education, 
but the people who are directly impacted seem to have a 
sympathy.
    So what I am saying is obviously we are going to try and 
work with you and others, but there seems to be a difference of 
opinion, and it seems like the town is a lot closer to it. That 
is just an observation, and I am not challenging it.
    Mr. Guinn. That case would be the case for the people in 
Caliente, but you must remember not all of this waste could be 
shipped to Yucca Mountain only through Caliente. All of 
California and the northern part of the area would come through 
the valley we are talking about. I would say there is certainly 
some difference there, but not for the majority of our people 
and the masses of our people.
    We have been educated quite well. There are newspaper 
articles every day. There are statements every day by the 
various people, so our people are fairly well-educated in this 
area and know what they want.
    Mr. Stearns. Staff has asked me to do this, and I am very 
happy to do it, that the reason the money was cut off was 
because of abuses, perceived abuses, and we would like to make 
part of the record some of the Department of Energy statement 
of September 9, 1998, where it talks about why they froze the 
money and so forth, and it is presented here, and so without--
and the GAO report on the Nevada's use of nuclear waste grant 
funds, and with unanimous consent I will make this part of the 
record, too.
    [The information referred to follows:]

                               Department of Energy
                                             Washington, DC
                                                  September 9, 1998
Mr. Robert R. Loux, Executive Director
Agency for Nuclear Projects
Nuclear Waste Project Office
Carson City, Nevada 89710
    Dear Mr. Loux: I am writing to you in response to your June 22, 
1998 letter to Eric J. Fygi, then Acting General Counsel, transmitting 
the State of Nevada's comments addressing the findings contained in the 
KPMG Peat Marwick report ``Nevada's Use of Nuclear Waste Funds Between 
May 1992 and September 1995.''
    In Mr. Fygi's June 11, 1998 letter to you transmitting the Peat 
Marwick report, he provided you with a final opportunity to provide any 
documentation you may have demonstrating that any portion of the 
challenged expenditures was for statutorily authorized purposes. While 
you have provided information regarding your interpretation of the 
legal authorities and principles involved, no further documentation has 
been provided. Furthermore, Peat Marwick has reviewed the State's 
comments and determined that no new information has been provided that 
would cause Peat Marwick to revise its report or any of its findings. 
(A copy of this Peat Marwick report is enclosed.) Therefore, as we have 
previously indicated, the Department will take steps to reallocate the 
$691,835 presently frozen in the account that the Department had 
maintained for the State as a means of recouping the funds Peat Marwick 
concluded were not shown to have been spent for statutorily authorized 
purposes.
    In your June 22, 1998 letter, you comment on the Department's 
guidelines on spending restrictions that were prepared, consistent with 
the recommendation of the General Accounting Office in its 1996 report, 
for use in Peat Marwick's audit of Nevada's use of federal funds 
between May 1992 and September 1995. You state that much, if not all, 
of the confusion reflected in the 1996 General Accounting Office report 
and the 1998 Peat Marwick report could have been avoided if the 
Department had provided the State with its interpretation of the 
funding restrictions. You also state that the guidelines misinterpret 
the States's role and prerogatives under the Nuclear Waste Policy Act 
and seek to inappropriately constrain the State's use of federal funds. 
We believe the guidelines are simply a restatement of the statutory 
restrictions, consistent with the interpretation outlined in the 1996 
GAO report and endorsed by Peat Marwick in its most recent report. We 
recognize. and endorse the important role the State is granted in the 
Nuclear Waste Policy Act to participate in the Civilian Radioactive 
Waste Program. However, use of federal funds to perform that role must 
be consistent with any applicable statutory restrictions. To avoid any 
possible confusion in the future, we will provide such guidelines at 
the time Congress appropriates funds for the State oversight function.
            Sincerely,
                                         Mary Anne Sullivan
                                                    General Counsel
Enclosure

    [The GAO Report, GAO/RCED-96-72, is retained in 
subcommittee files.]
    Mr. Guinn. That is true. I am a new Governor. We have new 
people, and what we need is we need to have rules set forth.
    Mr. Stearns. Have you seen this report?
    Mr. Guinn. No, I haven't. I have been briefed on it. I 
would be happy to go back and read it in great detail. I assure 
you that the issue I am familiar with there is a rule was made 
after we had spent some money through the grant that indicated 
we were not supposed to use any expenditures for outside the 
State. And what happened is we were talking to people in Salt 
Lake and other places about transportation, and that was a new 
rule set forth, and I think that could be corrected if that is 
the specific rule, but we still need money for the scientific 
analysis. We are a small State, and we just cannot compete 
without that money to be able to look at the data, and so far 
we don't feel comfortable with the data we are looking at just 
from our own scientific people we have in State.
    Mr. Stearns. Thank you, Governor. I now turn over the 
microphone for questions to the ranking member Mr. Hall.
    Mr. Hall. Thank you, Mr. Chairman.
    And Governor, thank you and the mayor for your input. You 
are doing exactly what I would be doing if I were Governor and 
mayor of the area.
    A lot of us find ourselves in the position of admiring very 
much the opposition, but needing the legislation. I am original 
cosponsor on 45 back in 1982, and I would say that we are here 
today because you have sent very able and very capable Members 
to the House and to the Senate that have represented you well. 
They have been men that we had and women that we had such high 
regard for. Mr. Gibbons, we have debated this with him before, 
and he is very knowledgeable. He is a gentleman. He is highly 
admired and respected here. That is probably one reason we are 
still here. We might well have already passed this thing 
through, and you would be more concerned about doing it safely, 
as the mayor has suggested here, than having it actually come 
to pass. So I respect you, and you have done a good job with 
your presentation here today.
    You represent a beautiful city that I have visited many 
times. I have been going out there ever since an entrepreneur 
named his project The Flamingo. It was a long, long time. I 
heard the chant, ``Nine's a line, a front's away and the back 
to pay,'' and sometimes didn't like it, but I thank you for 
your time here, and I thank these Members of the Congress who 
are representing you well.
    I guess I have a question of Mr. Phillips, the mayor, who I 
think--I admire what you are trying to do for your people also 
and the way you are trying to do it. I guess we would be very 
interested in doing the repository properly in a way that 
safeguards folks along the line and those that live closer to 
the site than most of us ever will. So I guess it is only fair 
to those of us who are asking your State to shoulder the burden 
to listen to your request and try to consider your concerns. So 
do you feel that the Energy Department is doing this? Are they 
listening to you? Do you get audience there?
    We don't have the Chairman of Energy here today, but we are 
going to have him here a little bit later. It is my 
recollection that the President sometime back said as Secretary 
he would have full authority to carry out his mission in this 
area. Considering that fact, that Secretary Richardson has been 
given this authority, along with the fact that he is one of the 
former colleagues of this committee, I do look forward to 
hearing him testify here, and we don't really want to pass a 
bill that the President is just going to veto and then we have 
to go into the override procedure. We would really like to pass 
a bill, if it is going to be a bill and it is going to pass and 
it is a good bill, that perhaps, no pun intended, that you can 
live with. I don't--I wouldn't like to think that it was a 
sense of death. I wouldn't vote for it in a minute if I thought 
that.
    So, Mayor, do you feel like your concerns are being 
considered, and those that aid you and advise you that are more 
technically inclined than you or me or the Governor might be, 
that they are being considered?
    Mr. Phillips. Secretary Richardson has been very gracious, 
come to Nevada two times recently, even held a meeting with 
some of us little local people and some county commissioners 
and myself, and we appreciate that we have a very good dialog 
with Mr. Barrett.
    Our issue here is one of transportation. In our 
circumstance and situation, if there is a weakness in the 
Department of Energy's program from our perspective, it is that 
there is no work being done presently to prepare for the 
transportation issue. It took 20 years to develop the detailed 
transportation plans for the WIPP facility in New Mexico, and 
yet at the present time there is not any work being done on 
that transportation issue. That I see as a weakness that should 
be corrected.
    Mr. Hall. Governor, do you have anything to add to that?
    Mr. Guinn.No.
    Mr. Hall. I will yield back my time, and we will get on to 
the other.
    Mr. Barton. The Chair would recognize the gentleman from 
Ohio Mr. Sawyer for 5 minutes.
    Mr. Sawyer. Mr. Chairman, I am not going to take advantage 
of that opportunity to question. I simply want to thank both 
the Governor and the mayor. As a former mayor myself, I fully 
appreciate the central mission that you have and the discomfort 
that you express on behalf of the citizens both of your 
community and your State. I am grateful for your time here, and 
we will pay close attention to your thoughtful comments.
    Mr. Barton. The Chair then would recognize Mr. Wynn for 5 
minutes for questions if he so wishes.
    Mr. Wynn. Thank you, Mr. Chairman. I, too, would defer 
questions at this time, but I certainly would look forward to 
working with the Governor and the mayor because I realize this 
is a serious issue, and your point regarding transportation is 
certainly well taken. Hopefully we can work out a suitable 
resolution.
    Mr. Barton. The Chair would--has Mr. Shimkus been 
recognized for questions? The Chair would recognize Mr. Shimkus 
for 5 minutes.
    Mr. Shimkus. I have no questions.
    Mr. Barton. The Chair would recognize himself for 5 
minutes. I won't take the complete 5 minutes.
    Governor, it is my understanding that while I was away 
voting, that you in either response to a question or statement 
you made, that you expressed some concern about being able to 
use the Federal resources that are available in the Nuclear 
Waste Policy Act in terms of monitoring the site development 
and the safety.
    I can assure you that as the former subcommittee chairman 
of the Oversight and Investigation Subcommittee, I shared those 
concerns, and at my request we had several studies done and 
audits done by the Department and the General Accounting 
Office, and it was determined that the previous Governor and 
the executive director for the Agency of Nuclear Projects in 
Nevada, Mr. Robert Loux, were misallocating the vast majority 
of the funds that they had available, and that is the reason 
about $700,000 had to be frozen.
    I can assure you that so long as under your leadership and 
the excellent work of the Congressmen and Senators you use 
those funds for what the law said they could be used for, there 
will be no problem.
    Mr. Guinn.We have talked to Secretary Richardson, and he 
has indicated he does have it back in his budget, the $5.4 
million or so, and we are now funding it ourselves, but, again, 
I think the indication that we have and the fact that we have 
had the audit gives us much more direction, and I assure you 
that that is exactly what would be followed.
    Mr. Barton. You are the Governor of the State, and this is 
an important issue in your State. And we understand, I think, 
from both sides of the aisle that no matter where the 
repository, the interim storage, is sited, the people near that 
are going to have legitimate concerns about the safety of it, 
and the transportation to and from it, and the operation of it, 
and the life cycle and all of the things that you raise in your 
testimony. And the Nuclear Waste Policy Act did provide some 
funds for the Federal Government to give to the State to 
address those concerns, and those funds will be available, and 
they will be under your leadership allowed to be used, and I 
think in a way that your citizens are going to feel very 
comfortable that their concerns are being addressed.
    Mr. Guinn.Thank you very much, Mr. Chairman.
    Mr. Barton. Does Mr. Largent wish--the Chair would yield 
back the balance of his time. Does the gentleman from Oklahoma 
wish 5 minutes for questions?
    Mr. Largent. No, sir.
    Mr. Barton. Does the gentleman from Mississippi Mr. 
Pickering wish 5 minutes for questioning?
    Mr. Pickering. No.
    Mr. Barton. Is Mr. Strickland, does he----
    Mr. Strickland. No, sir.
    Mr. Hall. Hurry up before Markey gets here.
    Mr. Barton. We will take the wise counsel of the gentleman 
from Texas. We are going to excuse this panel. There will be 
written questions for the record, and we will also allow 
written questions for Mr. Gibbons, Ms. Berkley, and our two 
Senators who could not be here because of business in the 
Senate. Thank you, Governor, and thank you, Mayor.We would like 
to call forward our next panel. We have the distinguished 
pleasure to have the entire National Regulatory Commission with 
us today. We have the Honorable Shirley Ann Jackson, who is the 
Chairwoman of the Nuclear Regulatory Commission, and she is 
accompanied by Commissioner Greta Dicus, Commissioner Nils 
Diaz, Commissioner Edwin McGaffigan, and Commissioner Jeffrey 
Merrified. On behalf of the Department of Energy, we have Mr. 
Lake Barrett, who is the acting Director of the Office of 
Civilian Radioactive Waste. We have Mr. Jared Cohon, who is the 
Chairman of the Nuclear Waste Technical Review Board. We have 
the Honorable Robert Perciasepe, who is the Assistant 
Administrator for Air and Radiation of the Environmental 
Protection Agency, and we have Mr. Stuart Schiffer, who is the 
Deputy Assistant Attorney General for the Commercial Litigation 
Branch of the Civil Division of the U.S. Department of Justice. 
I hope we have enough chairs so we can get everybody at the 
witness table. We welcome each of you ladies and gentlemen to 
our hearing.
    It is my understanding, Chairwoman Jackson, that you are 
going to speak for the Nuclear Regulatory Commission, and none 
of the other commissioners wish to give a statement. Is that 
correct? We will recognize you. Your entire statement is in the 
record in its entirety, and we will recognize you for 5 minutes 
to summarize it.

   STATEMENTS OF HON. SHIRLEY ANN JACKSON, CHAIRMAN, NUCLEAR 
      REGULATORY COMMISSION, ACCOMPANIED BY GRETA DICUS, 
   COMMISSIONER; NILS DIAZ, COMMISSIONER; EDWARD McGAFFIGAN, 
  COMMISSIONER; AND JEFFREY MERRIFIED, COMMISSIONER; LAKE H. 
BARRETT, ACTING DIRECTOR, OFFICE OF CIVILIAN RADIOACTIVE WASTE 
  MANAGEMENT, DEPARTMENT OF ENERGY; JARED L. COHON, CHAIRMAN, 
   NUCLEAR WASTE TECHNICAL REVIEW BOARD; ROBERT PERCIASEPE, 
 ASSISTANT ADMINISTRATOR FOR AIR AND RADIATION, ENVIRONMENTAL 
  PROTECTION AGENCY; AND STUART E. SCHIFFER, DEPUTY ASSISTANT 
ATTORNEY GENERAL, COMMERCIAL LITIGATION BRANCH, CIVIL DIVISION, 
                     DEPARTMENT OF JUSTICE

    Ms. Jackson. Mr. Chairman and members of the subcommittee, 
thank you for this opportunity to present the views of the U.S. 
Nuclear Regulatory Commission, the NRC, regarding the U.S. 
program for management and disposal of high-level radioactive 
waste and spent nuclear fuel. I will discuss briefly----
    Mr. Barton. Will the gentlelady suspend. We would like 
order in the hearing room so we can hear the distinguished 
Chairwoman. I know it is crowded, and with the lights on it is 
probably warmer than it should be, but we need to give her 
courtesy so that members of the subcommittee can hear her 
testimony.
    Ms. Jackson. I will discuss briefly our observations on the 
progress of the DOE program to characterize the Yucca Mountain 
site of the potential geologic repository including the 
recently released viability assessment, our general views on 
the Yucca Mountain standards prepared by the Environmental 
Protection Agency, and our position on H.R. 45, the Nuclear 
Waste Policy Act of 1999.
    We continue to progress in meeting NRC obligations that 
relate to licensing of a geologic repository under existing 
law. This includes developing the regulatory framework for 
licensing and the prelicensing consultation with the DOE and 
other stakeholders. The NRC staff has concentrated on a 
thorough review of key technical issues, preparing reports that 
ultimately will form the basis for our Yucca Mountain review 
plan.
    Most recently the NRC staff has been reviewing the December 
1998 DOE viability assessment with a focus on highlighting any 
major concerns with the DOE test plans, design concepts, or 
total system performance assessment, concerns that might result 
in an incomplete or unacceptable license application.
    The NRC will receive the--the Commission will receive the 
NRC staff comments on the viability assessment in March. To 
date, the NRC staff has not identified any major concerns with 
many aspects of the viability assessment. However, we agree 
with the DOE that its quality assurance program needs to 
improve.
    We have a chart, and as you can see on it, the NRC High-
Level Waste Regulatory Program remains on schedule in preparing 
to review a license application from the DOE in 2002. The NRC 
has cooperated with the EPA in its development of Yucca 
Mountain standards. We understand that the EPA may soon move 
forward with interagency review of the draft standards. The NRC 
plans to review the draft standards when they become available 
to determine whether they raise any implementation issues.
    In order to meet the time constraints and to provide the 
public early notice and opportunity for involvement, we 
developed our implementing regulations in parallel with the EPA 
efforts. The Commission recently approved publishing for public 
comment our proposed rule, 10 CFR Part 63, to implement the EPA 
Yucca Mountain standards. This proposed rule includes an 
individual dose limit of 25 millirem per year for the expected 
dose to the average member of the group that receives the 
greatest exposure, a standard that we believe would protect 
public health and safety and is consistent with national and 
international recommendations for radiation protection.
    As our proposed rule makes clear, the NRC will amend these 
regulations, if needed, to conform to the final EPA standards 
or to any new legislation that may be enacted.
    The Commission believes that the proposed legislation, H.R. 
45, contains the basic elements of an effective framework for 
safe management and disposition of high-level radioactive waste 
providing an integrated spent fuel management system--onsite 
storage, centralized interim storage, and deep geologic 
disposal, with a transportation system to link these elements. 
In our written testimony, we have included several suggestions 
and comments that we believe would enhance the proposed 
legislation.
    In summary, the Commission believes that, whether under 
existing law or in a revised legislative framework, the U.S. 
High-Level Radioactive Waste Program needs both statutory and 
institutional stability in order to proceed in an orderly, 
efficient, timely, and effective fashion. We believe that H.R. 
45, when coupled with sufficient resources to make progress in 
all phases, can provide this needed stability.
    Thank you for this opportunity to present our views. We 
would be happy to answer any questions that you may have.
    [The prepared statement of Hon. Shirley Ann Jackson 
follows:]
   Prepared Statement of Hon. Shirley Ann Jackson, Chairman, Nuclear 
                         Regulatory Commission
                                overview
    Mr. Chairman, members of the Subcommittee, the Nuclear Regulatory 
Commission (NRC) is pleased to testify regarding the U.S. program for 
management and disposal of high-level radioactive waste and spent 
nuclear fuel. I also welcome the opportunity to discuss our 
observations on the progress of the Department of Energy (DOE) program 
to characterize the Yucca Mountain Site as a potential geological 
repository, including the recently-released viability assessment, and 
to present the Commission views on H.R. 45, the ``Nuclear Waste Policy 
Act of 1999.'' I also will address the NRC efforts to establish site-
specific licensing requirements for the proposed repository, and our 
general views on the Yucca Mountain standards prepared by the 
Environmental Protection Agency (EPA).
    The NRC continues to make progress under the Nuclear Waste Policy 
Act (NWPA) and the Nuclear Waste Policy Amendments Act (NWPAA). We are 
meeting our current obligations to provide a regulatory framework for 
the licensing of a geologic repository and to consult with the DOE and 
other stakeholders in advance of the license application. As part of 
our overall pre-licensing strategy, we are concentrating our review on 
those key technical issues that are most important to repository 
performance and, therefore, to licensing. Since we refocused and 
streamlined our program in Fiscal Year 1996, I can report that the NRC 
staff has progressed, completing substantive reports on the status of 
resolution, at the staff level, of each of the key technical issues. 
These reports ultimately will form the basis for the Yucca Mountain 
review plan that will be used to guide our review of a license 
application.
                          viability assessment
    I will begin by discussing the status of the NRC review of the DOE 
December 1998 Viability Assessment (VA). We received the VA in late 
December, and review by the NRC staff is continuing. The Commission 
expects to receive the results of the NRC staff review in mid-March. 
The principal objectives of the NRC review are to assess the DOE 
program in preparing a high-quality license application, to highlight 
significant information deficiencies, and to identify any major 
concerns with the DOE test plans, design concepts, or total system 
performance assessment. We define ``major concerns'' as ones that might 
result in an incomplete or unacceptable license application.
    These objectives are consistent with NRC responsibilities for 
preliminary consultation under the NWPA. I am pleased to report that 
the NRC staff has identified no major concerns with many important 
aspects of the VA. We believe this can be attributed, in part, to the 
frequent, open interactions the NRC staff has maintained with the DOE 
over the past year in preparing the VA. During these public 
interactions, the DOE has furnished substantial information to our 
staff in advance of the VA release, which has facilitated our review. 
We are confident that the DOE recognizes many of the areas where 
additional work is needed prior to licensing. However, the NRC staff is 
identifying some specific issues during its review, which the staff 
will present to the Commission in March 1999.
    For example, we expect to highlight the increased attention the DOE 
must give to the implementation of its Quality Assurance (QA) program 
for Yucca Mountain. As part of our continuing pre-licensing 
interactions, the NRC staff has identified persistent QA deficiencies 
in the DOE program. While most of the issues were first brought to 
light by the DOE itself, the DOE needs to be more effective in 
preventing and resolving these problems in a timely manner. We 
understand that DOE management agrees with the need for improving the 
QA program and is moving aggressively to make the necessary upgrades 
prior to submitting its license application. The DOE recently briefed 
the NRC staff (December 9, 1998) on its plans for corrective action, 
and plans to meet with the NRC in April 1999 to present their results. 
In response, the NRC has formed a team to determine whether the DOE has 
identified the problems adequately and implemented the needed 
corrective actions.
    We are encouraged by the clear improvements in the overall DOE 
program, including planning, focusing on a ``safety case'' for 
licensing, and communicating with the NRC. However, it is important to 
emphasize that the ultimate responsibility rests with the DOE for 
demonstrating that licensing requirements are met to protect public 
health and safety and the environment. The Commission independently 
must assess and find ``with reasonable assurance'' that such 
demonstration has been made prior to licensing the repository. Among 
other things, the timely NRC review of a potential license application, 
consistent with the schedules laid out in the VA, depends on receipt of 
a high-quality license application from the DOE, a scientifically based 
and demonstrable standard on dose limits, and sufficient resources for 
the NRC to maintain its independent technical review capability.
    The NRC HLW program remains on schedule consistent with our 
responsibilities under the Nuclear Waste Policy Act of 1982, as 
amended, and the Energy Policy Act of 1992. We are developing the 
regulatory framework and review criteria to prepare ourselves to review 
a repository license application from the DOE in 2002. We expect to 
comment on the DOE draft Environmental Impact Statement (EIS) for a 
proposed Yucca Mountain repository late this Fiscal Year, and to 
provide comments on the proposed EIS at the time of the site 
recommendation in Fiscal Year 2001. Through early NRC staff 
identification and resolution of key technical issues for repository 
licensing, we are preparing to complete our review of the DOE license 
application in three years. We also have recently completed rulemaking 
to establish a Licensing Support Network, using web-based technology, 
to facilitate access to supporting documents to expedite the review of 
the license application.
                      draft proposed epa standards
    Let me turn now to your second area of interest, the Environmental 
Protection Agency (EPA) efforts to develop radiation standards for the 
repository. The EPA is obligated, under the Energy Policy Act of 1992, 
to issue final health-based standards for Yucca Mountain that are based 
on, and consistent with, the recommendations and findings of the 
National Academy of Sciences (NAS). The NAS reported its findings to 
the EPA on August 1, 1995. The Commission, under the same Act, must 
modify, if needed, its technical criteria to be consistent with the 
final EPA standards within a year of their issuance.
    The Commission is aware of continued efforts by the EPA over the 
last two years to develop radiation standards for Yucca Mountain. To 
facilitate this process, the NRC and EPA staffs have held several 
meetings for the exchange of information. The Commission also is aware 
of recent discussions between the EPA and the DOE, to which the NRC is 
not always privy, that may have resulted in revisions to the current 
EPA approach. The EPA and DOE staffs have advised the NRC staff that 
the EPA soon may move forward with interagency review of the draft 
standards. The NRC plans to review these draft standards when they 
become available to determine whether they raise any implementation 
issues.
    Because we anticipate that we will have only a very short period in 
which to issue final implementing regulations once the final EPA 
standards are issued, the Commission initiated its own rulemaking in 
parallel with the development of the EPA standards. The NRC staff 
provided the Commission a draft proposed rule last October, which the 
Commission released to the public concurrent with the Commission 
review. The Commission recently approved publication of proposed 
regulations at 10 CFR Part 63 with some minor modifications. In fact, 
the proposed rule is expected to be published for public comments soon. 
We believe that we have an obligation to make public now our intended 
approach for implementing the health-based standards called for by the 
Congress, in order for the DOE to begin preparing a license 
application, and to allow for timely and meaningful public involvement 
in the development of our implementing regulations.
    Our proposed regulations include an individual dose limit, which we 
believe is generally consistent with the requirements of Section 801 of 
the Energy Policy Act and with the recommendations of the National 
Academy of Sciences. We propose an all-pathways standard of 25 millirem 
per year expected dose to the average member of the group which 
receives the greatest exposure, the so called ``critical group.'' We 
believe such a standard is protective of public health and safety and 
the environment. It also is consistent with standards for other waste 
management facilities licensed by the NRC, and with national and 
international recommendations for radiation protection. As our proposed 
rule makes clear, the NRC will amend its regulations in the proposed 10 
CFR Part 63, if needed, to conform to the final EPA standards, or to 
any new legislation that may be enacted.
                                h.r. 45
    Finally, I will offer our views on the proposed legislation, H.R. 
45, the subject of the hearing this morning. In general, the Commission 
agrees with the fundamental approach taken in H.R. 45. This Bill 
contains the basic elements of an integrated system for the management 
and disposal of high-level radioactive waste that is necessary for the 
protection of the public health and safety, the environment, and the 
common defense and security. These elements include central interim 
storage and deep geologic disposal, together with a transportation 
program linking the elements together. Moreover, H.R. 45 recognizes 
that the overall, long-term success of the national program to manage 
spent fuel and other high-level radioactive waste requires a permanent 
disposal solution.
    As an interim measure, the NRC considers available technologies for 
wet and dry storage of spent fuel at reactor sites to be safe, but we 
view dry storage as the preferred method for supplementary storage of 
spent fuel at operating plants. Continued at-reactor storage, for an 
interim period, will continue to protect public health and safety. 
However, we believe that centralized interim storage of spent fuel in 
dry cask storage systems offers several beneficial features. A 
centralized interim storage facility, when compared with dispersed 
storage at about 75 sites across the country, would allow for more 
focused inspection and surveillance by both the DOE and the NRC. In 
addition, such a facility would be more efficient (especially at 
permanently shut-down facilities), and would afford operational and 
programmatic benefits for the DOE program for accepting waste from 
utilities. However, as the regulator of such a facility, the NRC takes 
no position as to where a centralized facility should be located. For 
any proposed site, the Commission must make the appropriate safety, 
security and environmental findings before issuing the license.
    Section 204 of H.R. 45 establishes a two-phased licensing process 
for an interim storage facility. In the first phase, the DOE is 
required to submit an application for a twenty-year license for a 
facility with a capacity of not more than 10,000 metric tons of uranium 
(MTU) within 12 months of enactment of the Act. The draft legislation 
provides that the Commission may accept or reject this application 
within 36 months. In the second phase, the DOE will submit an 
application for a license with an initial term of 100 years, which 
would be renewable for additional terms, and have a capacity of 40,000 
MTU. The DOE would be allowed to commence construction as soon as it 
submits its first application; however, the NRC may suspend 
construction if it determines that there is unreasonable risk to the 
public health and safety.
    If the initial license were granted, an effective way to implement 
the second phase would be to amend the original license to accommodate 
an increase in capacity. I hasten to add that the NRC regulations 
currently allow site-specific interim storage license terms for 20 
years, which may be renewed for another 20 years. The NRC regulations 
would need to be revised to permit a 100-year license. The NRC staff 
has begun only recently to evaluate the technical considerations 
associated with licensing of dry cask storage systems and facilities 
for a period of 20 to 100 years. We have not identified any safety or 
environmental issues that would preclude issuance of a license for 100 
years. However, given the information available at this time, we have 
not yet determined that 100 years should be established as the license 
term for an above-ground, centralized interim storage facility. 
Whatever the specified term for second phase, from an NRC perspective, 
an effective way to implement the second phase would be to amend the 
original license to accommodate an increase in capacity.
    As you may know, the NRC currently is reviewing the DOE May 1997 
topical report for a non-site-specific centralized interim storage 
facility. The NRC staff expects to complete its review by October 1999. 
The NRC Assessment Report will provide an early indication of the 
acceptability and feasibility of the DOE approach to centralized 
interim storage, which should be useful to the DOE prior to its 
submission of a license application.
    H.R. 45 also recognizes the importance of the integrated 
transportation of spent fuel and high-level waste in the current 
regulatory system. The NRC supports the requirement that NRC-certified 
packages be used for these activities. To this end, we currently are 
reviewing six commercial designs for dual-purpose storage/
transportation cask systems. By December 2000, we anticipate that all 
of the storage reviews and two of the transportation reviews should be 
completed.
    We have identified three specific changes to the proposed 
legislation that should be considered. First, Section 202 would require 
that the Secretary of Energy use routes that minimize the 
transportation of spent fuel and high-level radioactive waste through 
populated areas to the maximum practicable extent, and consistent with 
Federal requirements governing transportation of hazardous materials. 
This provision is not consistent with the route selection requirements 
for spent fuel shipments not subject to this Act. The U.S. Department 
of Transportation (DOT) currently has established highway routing rules 
that apply to spent fuel shipments, and they currently do not require 
avoidance of populated areas. The routing rules were developed by the 
DOT after extensive public involvement and have proven successful. In 
fact, the current DOT rules require the use of the interstate system, 
an implication that spent fuel shipments may transit populated areas. 
Further, the avoidance of such routes might increase shipment distance, 
time, and risk. Therefore, it is not clear that this provision enhances 
public health and safety.
    Section 203 states that ``acceptance by the Secretary of any spent 
nuclear fuel or high-level radioactive waste shall constitute a 
transfer of title to the Secretary.'' If the transfer were to take 
place at the utilities prior to shipment, the material would become 
DOE-titled material, not NRC-licensed material, at the time of 
shipment. Under current statute, shipment by the DOE of DOE-titled 
material is not currently subject to the NRC transportation safety or 
physical security requirements. Consequently, unless it is explicitly 
spelled out in H.R. 45, the NRC would have no oversight role of such 
shipments, including inspection of the shipments for radiological 
safety, or review and approval of shipment physical security plans. 
Although the shipments would be subject to the DOT Hazardous Material 
Regulations, many stakeholders expect that such shipments would be 
subject to regulation by the NRC. For the NRC to assume this role, H.R. 
45 would need to be modified to require NRC oversight of the shipments.
    With regard to transportation, we agree with the incorporation of 
emergency response training requirements in H.R. 45. We believe this 
mechanism would provide for a more coordinated review and would enhance 
consensus building. We would look forward to consulting with the DOT 
and others on the scope and elements for required training.
    The Commission strongly supports including in H.R. 45 permanent, 
deep geologic disposal of spent fuel and high-level radioactive waste 
as an essential element of the integrated system, described in H.R. 45. 
The Commission continues to believe that deep underground disposal is a 
sound and technically feasible solution to the problem of final 
disposition of spent nuclear fuel and other high-level radioactive 
wastes. Because the Waste Confidence decision of the Commission is 
predicated on the eventual availability of disposal in a mined geologic 
repository, we strongly support the inclusion of Section 204(g). Such a 
provision would permit the Commission to base its waste confidence 
determinations not only on the DOE obligation to construct and operate 
an interim storage facility, but also on its obligation to develop and 
implement the integrated spent fuel management system, including 
permanent, deep geologic disposal.
    With regard to licensing schedules in H.R. 45, the Commission 
supports the provision of 36 months for the NRC to review and complete 
licensing action on an application for an interim storage facility. The 
Commission also supports the approach taken in section 205(a)(1) to 
revoke the DOE repository siting guidelines to allow the DOE to focus 
on developing a high-quality repository license application.
    The Commission also supports an effective and efficient public 
hearing process. The Commission currently is studying the NRC hearing 
process, including the process that would be used for repository 
licensing. If, on the basis of this study, the Commission concludes 
that changes to the hearing process are warranted, we will propose them 
for adoption in a separate notice and comment rulemaking. In the Part 
63 rulemaking, the Commission is not seeking comment on potential 
changes to the hearing process. However, in the interest of openness, 
the Commission wishes to say that, at present, we are considering 
improvements to our hearing process to increase its efficiency and 
effectiveness.
    We believe that the timetables established for licensing of both 
the interim storage facility and the repository will be adequate, 
provided:

(1) That the license applications and supporting documentation are 
        submitted in a timely fashion and are of sufficient quality, 
        and
(2) That sufficient resources are provided for the NRC programs to 
        accommodate concurrent pre-licensing and licensing reviews for 
        the two facilities. In order to meet the schedules and 
        milestones described in H.R. 45, the legislation would need to 
        be enacted by June 1999.
    With respect to the proposed performance standard for the 
repository in H.R. 45, the Commission considers 10,000 years to be a 
sufficient length of time to assess the isolation capability of the 
system, including contributions from both engineered and natural 
barriers. The Commission believes that the standard in H.R. 45 of an 
annual effective dose of 100 mrem (1 mSv) to the average member of the 
general population in the vicinity of Yucca Mountain is consistent with 
the protection of public health and safety. The Commission believes 
that, within the context of implementing the 100 mrem annual dose limit 
specified in H.R. 45, the NRC has the flexibility to implement the 
internationally accepted ``average member of the critical group'' 
approach, using a reference biosphere, as recommended by the National 
Academy of Sciences, for application to the Yucca Mountain repository. 
To provide reasonable assurance that the 100 mrem annual limit will be 
met, the Commission anticipates that the expected value for dose to the 
average member of the critical group would be restricted to 25 mrem per 
year (as specified in our proposed 10 CFR Part 63). We understand that 
H.R. 45 intends to give the Commission the flexibility to adopt this 
approach.
    Further, we support provisions in H.R. 45 on the scope of the 
National Environmental Policy Act of 1969 (NEPA) responsibilities of 
the NRC for disposal that, consistent with existing law, direct the NRC 
to adopt the DOE EIS, to the extent practicable, in the repository 
licensing proceeding. The Commission also supports the provisions of 
the bill on specifying the scope of the NRC EIS, requiring the generic 
consideration of transportation impacts, and identifying the issues 
that should not be considered by the Commission under NEPA for interim 
storage. The Commission also recommends that H.R. 45 make clear that 
the NRC will not be required to prepare an EIS under section 102(2)(C) 
of NEPA, or any environmental review under subparagraph (E) or (F) of 
the Act, in connection with the issuance of disposal regulations in 
Section 205(b). This would be comparable to existing law contained in 
section 121(c) of the Nuclear Waste Policy Act of 1982.
                               conclusion
    The Commission agrees that H.R. 45 outlines an appropriate program 
for the permanent disposition of high-level radioactive waste, by 
providing an integrated spent fuel management system, on-site storage, 
centralized off-site storage, and deep geologic disposal, with a 
transportation system to link them. However, the Commission is meeting 
its obligations under existing law to prepare for licensing a geologic 
repository. The Commission believes that its proposed Part 63 
regulation is an appropriate approach to ensure that the regulatory 
framework is sufficiently protective of public health and safety and 
the environment and developed in a timely manner. Whether under the 
existing law or a revised legislative framework, the U.S. high-level 
waste program needs both statutory and institutional stability in order 
to proceed in an orderly, efficient, timely, and effective fashion. The 
Commission believes that, when coupled with sufficient resources to 
maintain progress in all phases, H.R. 45 can supply this necessary 
stability. We appreciate the opportunity to provide our views.

    Mr. Barton. Thank you, Madam Chairwoman.
    We would like to now recognize Mr. Lake Barrett, who is the 
Acting Director of the Office of Civilian and Radioactive 
Waste, and he is representing the Department of Energy today.
    Mr. Barrett, you are recognized for 5 minutes.

                  STATEMENT OF LAKE H. BARRETT

    Mr. Barrett. Thank you very much, Mr. Chairman and members 
of the subcommittee. I am pleased to appear before you today to 
review the technical progress in the Department's civilian 
radioactive waste management program and to address the interim 
storage legislation, H.R. 45, introduced by Representatives 
Upton and Towns. I would like to request that my testimony be 
included in the record.
    Mr. Barton. Yes, without objection so ordered.
    Mr. Barrett. The administration continues to believe that 
the Federal Government's long-standing commitment to permanent 
geologic disposal should remain the basic goal of its high-
level radioactive waste management policy. The repository 
effort is essential not only for the commercial spent fuel 
disposal, but also to facilitate the cleanup of the nuclear 
weapons complex, further our international nonproliferation 
goals, and to support our nuclear Navy's national defense 
mission.
    The Department is committed to fulfill its responsibilities 
for the permanent disposal of the Nation's spent fuel and the 
by-products of the Department's post-cold war cleanup efforts 
in a manner that provides reasonable assurance that the public 
health and safety and the environment will be adequately 
protected.
    Our policy of permanent geologic disposal of this Nation's 
waste is also the technical foundation for our international 
position on nuclear nonproliferation, our commitment to dispose 
of U.S. fuel being returned from other countries, and our 
advocacy for eliminating international trade in nuclear weapons 
materials. The Department has made substantial progress during 
the last 6 years in fulfilling these responsibilities.
    The new interim storage legislation is essentially the same 
as H.R. 1270 previously passed by the House, which the 
administration made clear the President would have vetoed. The 
Secretary opposes H.R. 45 and would recommend to the President 
that he veto the legislation if Congress passes it in its 
current form.
    I will address the legislation later in my testimony, but I 
first would like to provide a status report on the repository 
program.
    In December 1998, Secretary Richardson submitted the 
Viability Assessment of a Repository at Yucca Mountain to the 
Congress, this committee, and to the President. The viability 
assessment revealed that no show-stoppers have been identified 
to date at Yucca Mountain and that the scientific and technical 
work should proceed at the site. It also identified issues that 
will need to be addressed before a decision can be made on 
whether or not Yucca Mountain should be recommended as a site 
for a national repository. These issues include key natural 
processes in Yucca Mountain, such as water movement, that would 
affect the long-term performance of a repository and the waste 
package designs.
    We are preparing comprehensive technical documentation 
needed to complete the site characterization of Yucca Mountain 
to support the Secretary's decision whether to recommend the 
site to the President in 2001. The most challenging aspect of 
this effort is that we must provide scientific reasonable 
assurance that the repository at Yucca Mountain will adequately 
protect the public health and safety and the environment for 
thousands of years into the future.
    Our studies have found that a repository at Yucca Mountain 
would need to exhibit four key attributes to protect public 
health and the environment for thousands of years, and the four 
attributes are limited water contact with waste packages, long 
waste package lifetime, low release of radionuclides from 
breached waste packages and the reduction in the concentration 
of radionuclides as they are transported from breached waste 
packages.
    A reference design was developed for the viability 
assessment to provide a consistent basis for making and 
comparing our evaluations. Our design process has and will 
continue to evolve and consider potential advantages of 
alternate design features, concepts and options. For example, 
as we move forward in the licensing process, we are including 
additional factors into the design selection process.
    Now I would like to address waste acceptance litigation 
issues. As you know, the Department is in litigation over our 
inability to meet our contractual obligation to accept spent 
fuel from nuclear utility companies by January 1998. The Court 
of Appeals for the District of Columbia Circuit found that the 
Department has an obligation to commence spent fuel disposal by 
January 31, 1998. The court denied the utilities' and States' 
request for a move-fuel order, finding that the standard 
disposal contract provides a potentially adequate remedy. The 
court stated the Department may not rely on the unavoidable 
delays clause to excuse its delay in performance and suggested 
the avoidable delay clause of the standard contract as a 
potentially adequate remedy. This clause provides for equitable 
adjustment of schedules and contract charges to reflect any 
additional estimated actual cost incurred by the contract 
holder by our delay.
    Also to date, 10 utilities have filed claims for monetary 
damages in the U.S. Court of Federal Claims. In the first three 
cases decided by the court, the Department was found to have 
breached its contract with three utilities, each with only one 
shutdown reactor, and the Department is now engaged in the 
discovery process to determine the amount of damages the 
government must pay to these utilities. Other cases mostly 
involving utilities with operating reactors are paying ongoing 
fees to the Department and are currently pending before the 
court.
    Now I would like to turn to H.R. 45. The enactment of H.R. 
45 could force the focus of our waste management policy from 
geologic disposal to a short-term solution by requiring the 
Department to develop and commence operation of an interim 
storage facility at the Nevada test site. The bill requires the 
Department to begin accepting waste no later than June 30, 
2003, and provides a defined acceptance schedule for the 
interim storage of spent fuel in Nevada.
    Also the bill would undermine our ability to open a 
repository as scheduled in 2010 by potentially shifting budget 
priorities and work effort to the interim storage facility. For 
example, it implies a delay of our proposed repository 
construction authorization license application to the Nuclear 
Regulatory Commission by over a year, with a target date of 
December 2003.
    Based on historical appropriations patterns, the proposed 
bill's funding provisions do not provide sufficient funding 
resources to support the simultaneous construction and 
operation of an interim storage facility and/or a repository 
program, for which cost estimates have been provided in the 
viability assessment and its accompanying total system life 
cycle cost report. If the Department has responsibilities to 
comply with the interim storage facility and the repository 
funding provisions and schedules, enactment of the bill could 
result in a funding gap of substantially over $1 billion.
    The program is reaching conclusion of our Yucca Mountain 
site characterization----
    Mr. Barton. We wish you to reach conclusion also fairly 
quickly here.
    Mr. Barrett. The viability assessment clarified the 
remaining work required and illuminated those technical issues 
that should be addressed prior to determining if the site is 
suitable for recommendation to the President. We are addressing 
these issues and commenced work on assembling the information 
required to support a national decision on geologic disposal at 
Yucca Mountain.
    Let us finish this important task. We are on schedule to 
complete the draft repository environmental impact statement 
this summer, a final repository impact statement in 2000, and 
Yucca Mountain suitability in 2001. With sufficient 
appropriations, and if the site is suitable, we are also on 
schedule to submit a license application to the Nuclear 
Regulatory Commission in 2002 and emplacement of waste in a 
repository in 2010 if the site is licensed.
    We believe H.R. 45 could undermine this progress toward 
permanent geologic disposal and could weaken the credibility of 
the regulatory and institutional activities required to ensure 
adequate protection of the public health, safety, and the 
environment, thus jeopardizing the Nation's ability to have any 
solution to our nuclear waste challenge. For these reasons, the 
administration opposes H.R. 45.
    I would be happy to address questions the committee would 
have.
    [The prepared statement of Lake H. Barrett follows:]
   Prepared Statement of Lake H. Barrett, Acting Director, Office of 
      Civilian Radioactive Waste Management, Department of Energy
                              introduction
    Mr. Chairman and members of the Subcommittee, I am pleased to 
appear before you today to review technical progress in the 
Department's civilian radioactive waste management program and address 
the interim storage legislation, H.R. 45, introduced by Representative 
Upton.
    The Administration is committed to resolving the complex and 
important issue of nuclear waste disposal in a manner consistent with 
sound science and protection of the public health and safety, and the 
environment. The Administration continues to believe that the Federal 
government's longstanding commitment to permanent, geologic disposal 
should remain the basic goal of its high-level radioactive waste 
management policy.
    The repository effort is essential not only for commercial spent 
fuel disposal but also to facilitate the cleanup of the nuclear weapons 
complex, further our nuclear nonproliferation goals, and support our 
nuclear Navy's national defense mission. The Department is committed to 
fulfill its responsibilities for the permanent disposal of the Nation's 
spent fuel and the by-products of the Department's post-Cold War 
cleanup efforts in a manner that provides reasonable assurance that the 
public and the environment will be adequately protected. Our policy of 
permanent geologic disposal of this Nation's waste is also the 
technical foundation of our international position on nuclear 
nonproliferation, our commitment to dispose of U.S. fuel being returned 
from other countries, and our advocacy of limiting the international 
trade in weapons materials. The Department has made substantial 
progress during the last six years in fulfilling these 
responsibilities.
    The pending legislation, H.R. 45, is very similar to legislation 
considered in the last session of Congress, which the President stated 
he would veto. I will address that legislation later in my testimony, 
but would first like to provide a status report on the repository 
program.
              status report on the yucca mountain program
    In December 1998, Secretary Richardson submitted the Viability 
Assessment of a Repository at Yucca Mountain to the Congress and the 
President.
    The Viability Assessment provides policy makers such as this 
Subcommittee a technical status report on work carried out to date at 
Yucca Mountain. The Viability Assessment compiled a comprehensive 
description of the current design and operational concept for a 
repository based on data and work over the last decade. It assessed the 
potential performance of a repository concept in the Yucca Mountain 
geologic setting and contained a cost estimate and a plan for 
completing the license application.
    The Viability Assessment revealed that no ``show stoppers'' have 
been identified to date at Yucca Mountain and the Secretary has 
concluded that scientific and technical work should proceed at the 
site. It also identified issues that will need to be addressed before a 
decision can be made on whether or not Yucca Mountain should be 
recommended as a site for a repository. These issues include the key 
natural processes in Yucca Mountain, such as water movement, that would 
affect the long-term performance of the repository and waste package 
designs.
    We recognize that our assumptions and analyses have yet to be 
challenged in a rigorous licensing proceeding before the Nuclear 
Regulatory Commission, and that additional work will need to be done in 
order to assure success in order to meet the rigorous requirement of 
such a proceeding.
    We are preparing the comprehensive technical documentation needed 
to complete the site characterization of Yucca Mountain and to support 
the Secretary's decision whether to recommend the site to the President 
in 2001.
    The most challenging aspect of this effort is that we must provide 
scientific reasonable assurance that a repository at Yucca Mountain 
will adequately protect public health and safety and the environment 
for thousands of years after the repository is closed.
    This will be accomplished through a scientific, probabilistic 
performance assessment that evaluates how a repository system is likely 
to work over very long time periods. From the results of scientific 
studies, analysts build detailed mathematical models of the features, 
events, and processes that could affect the performance of the 
repository design. They then incorporate the results into an overall 
model to assess how the natural environment and engineered repository 
system are likely to work together over the long period required to 
contain and minimize the release of wastes into the environment.
    Our studies have found that a repository at Yucca Mountain would 
need to exhibit four key attributes to protect public health and the 
environment for thousands of years. The four attributes are limited 
water contact with waste packages, long waste package lifetime, low 
rate of release of radionuclides from breached waste packages, and 
reduction in the concentration of radionuclides as they are transported 
from breached waste packages.
    A reference design was developed for the viability assessment to 
provide a consistent basis for making and comparing our evaluations. 
Our design process has, and will continue, to evolve and consider the 
potential advantages of alternative design features, concepts, and 
options. For example, as we move towards the Secretary's site 
recommendation, we are including additional factors in the design 
selection process. First, we want to determine whether there are 
fundamentally different repository design concepts that could meet 
performance standards more effectively and efficiently than the 
reference design. Second, we will evaluate whether there are design 
features that could be added or incorporated into either the reference 
design or any alternative design with significant benefit. Lastly, we 
will consider whether there are alternative concepts or features that, 
in addition to meeting performance standards, could provide advantages 
with regard to operational, budgetary and regulatory issues.
                      waste acceptance litigation
    As you know, the Department is in litigation over our inability to 
meet our contractual obligation to accept spent fuel from the nuclear 
utility companies by January 31, 1998. The Court of Appeals for the 
District of Columbia Circuit found that the Department has an 
obligation to commence spent fuel disposal by January 31, 1998. The 
Court denied the utilities' and States' request for a move-fuel order, 
finding that the Standard Disposal Contract provides a potentially 
adequate remedy. The Court stated that the Department may not rely on 
the ``unavoidable delays'' clause to excuse its delay in performance 
and suggested the ``avoidable delays'' clause of the Standard Contract 
as the potentially adequate remedy. This clause provides for an 
equitable adjustment of schedules and contract charges to reflect any 
estimated additional costs incurred by the contract holder.
    Pursuant to the ruling of the Court of Appeals for the District of 
Columbia Circuit, the Department will process claims presented to it 
under the standard disposal contract. Although we have held settlement 
discussions with several utilities, only one utility has proposed a 
bilateral modification and request for equitable adjustment of the 
contract, and no formal claims have been filed.
    To date, ten utilities have filed claims for monetary damages in 
the U.S. Court of Federal Claims. In the first three cases decided by 
the Court, the Department was found to have breached its contracts with 
three utilities, each with only one shutdown reactor, and the 
Department is now engaged in discovery to determine the amount of 
damages the Government must pay these utilities. Other cases, most 
involving utilities with operating reactors paying ongoing fees to the 
Department, are currently pending.
            the administration's position regarding h.r. 45
    The enactment of H.R. 45 could force the focus of our waste 
management policy from geologic disposal to a short term solution by 
requiring the Department to develop and commence operation of an 
interim storage facility at the Nevada Test Site. The bill requires the 
Department to begin accepting waste no later than June 30, 2003, and 
provides a defined acceptance schedule for the interim storage of spent 
fuel in Nevada.
    The bill would undermine our ability to open the repository as 
scheduled in 2010 by shifting budget priorities and work effort to an 
interim storage facility. For example, it implies a delay of our 
proposed repository construction authorization license application by 
over a year, with a target date of December 2003.
    Based on historical appropriations patterns, the proposed bill's 
funding provisions do not provide sufficient funding resources to 
support the simultaneous construction and operation of an interim 
storage facility and the repository program, for which cost estimates 
have been provided in the Viability Assessment and the recently issued 
Total System Life Cycle Cost report. If the Department has 
responsibilities to comply with the interim storage facility and 
repository funding provisions and schedules, enactment of the bill 
could result in a funding gap of substantially over one billion 
dollars.
    The Department also believes that a waste acceptance deadline of 
June 2003 is very optimistic, given the licensing and transportation 
activities that would have to be completed prior to that date.
    The new interim storage legislation is essentially the same as H.R. 
1270, previously passed by the House, which the Administration made 
clear the President would have vetoed. The Secretary opposes H.R. 45 
and would recommend to the President that he veto the legislation if 
Congress passes it in its current form.
    Specifically, the Administration opposes this legislation because 
it would jeopardize the existing geologic disposal policy by forcing 
resources to be redirected to interim storage development,rather than 
completion by 2001 of the site characterization work needed to make a 
decision on the suitability of the Yucca Mountain site. The Federal 
government's longstanding commitment to permanent geologic disposal 
should remain the basic goal of its high level radioactive waste 
management policy. Permanent geologic disposal is also the approach 
preferred by the international community for nuclear waste.
    In addition, it would authorize the Secretary to immediately begin 
site preparation for the construction of a centralized interim storage 
facility within Area 25 of the Nevada Test Site regardless of whether 
Yucca Mountain is found to be suitable for a permanent repository. By 
doing so, H.R. 45 would undermine public confidence that a repository 
evaluation will be objective and technically sound, and jeopardize the 
credibility of any future decision on the suitability of the Yucca 
Mountain site.
                           concluding remarks
    The Program is reaching the conclusion of our site characterization 
effort. Let us finish. The Viability Assessment clarified the remaining 
work required and illuminated those technical issues that should be 
addressed prior to determining if the site is suitable for 
recommendation to the President. We are addressing these issues and 
have commenced work on assembling the information required to support 
national decisions on geologic disposal at Yucca Mountain.
    We are on schedule to complete a draft repository environmental 
impact statement in July 1999; a final repository environmental impact 
statement in 2000; and the Yucca Mountain site suitability in 2001. 
With sufficient appropriations, and if the site is suitable, we are 
also on schedule to submit the license application for repository 
construction to the Nuclear Regulatory Commission in 2002 and begin 
emplacement of waste in the repository in 2010, if the site is 
licensed.
    We believe that H.R. 45 could undermine this progress toward 
permanent geologic disposal, and could weaken the credibility of the 
regulatory and institutional activities required to ensure adequate 
protection of health, safety, and the environment--jeopardizing the 
Nation's ability to have any solution to our nuclear waste challenge. 
For these reasons, the Administration opposes H.R. 45.
    I would be happy to address any questions that you may have.

    Mr. Barton. Thank you, Mr. Barrett.
    We now recognize Dr. Jared Cohon, who is the Chairman of 
the Nuclear Waste Technical Review Board, for 5 minutes, and of 
course your complete statement is in the record in its 
entirety. Dr. Cohon.

                  STATEMENT OF JARED L. COHON

    Mr. Cohon. Thank you, Mr. Chairman. Good morning to you and 
to the other members of the subcommittee.
    As you heard, my name is Jared L. Cohon. I am Chairman of 
the Nuclear Waste Technical Review Board, which was created by 
Congress in the Nuclear Waste Policy Act amendments in 1987.
    Eleven members of the Board are selected on the basis of 
their expertise and represent a range of disciplines related to 
the technical and scientific evaluation of a site for a 
permanent repository at Yucca Mountain, Nevada. In accordance 
with the 1987 act, the Board members are appointed by the 
President on the recommendation of the National Academy of 
Sciences. All of us have full-time jobs outside of the Board. 
In my case, I am president of Carnegie Mellon University in 
Pittsburgh.
    The Board, Mr. Chairman takes very seriously its role as 
the main source of ongoing technical and scientific review of 
the DOE civilian radioactive waste management program.
    I have been asked to comment today on the viability 
assessment and on H.R. 45. I will make some brief summarizing 
remarks, and as you already indicated, Mr. Chairman, I 
appreciate the fact that my remarks in their entirety will be 
submitted into the record.
    With respect to H.R. 45, let me emphasize that most of the 
issues raised in the bill are policy matters that are outside 
the technical and scientific purview of the Board. I will 
therefore not comment on the specific provisions of H.R. 45 
except to urge that if phased development of an interim storage 
facility is authorized, that sufficient sources be allocated so 
that the DOE scientific testing to support decisions about the 
suitability and possible licensing of a permanent repository at 
the Yucca Mountain site can continue.
    The rest of my remarks will be with regard to the viability 
assessment, which, as you know, and you just heard again, was 
recently completed and issued by the DOE. The VA for short is a 
significant accomplishment that enables the DOE to identify and 
set priorities among key areas of research that could improve 
the technical basis for making decisions about site 
suitability, about a site recommendation, and for licensing.
    The Board concurs with the DOE that the VA was not meant to 
be and should not be viewed as a decision about the suitability 
of the Yucca Mountain site. The Board believes that in general 
the studies summarized in the viability assessment were carried 
out in a manner that produced good scientific information. It 
is very hard to judge, however, at this point how realistic the 
bottom-line estimates of a repository performance may be in the 
viability assessment.
    Those specific points, Mr. Chairman, for the Board's focus 
is the use of expert judgment which we commend DOE on using 
extensively in the viability assessment. We would just like to 
point out, as the DOE knows, that expert judgment should not be 
used as a substitute for data that can be obtained directly 
from site, laboratory and other investigations.
    The Board is pleased to note that the research priorities 
presented in the viability assessment are consistent with those 
that the Board identified in its report published in November 
1998. One important line of work is to evaluate alternative and 
potentially more robust repository and waste package designs. 
It is likely that improving these designs could increase 
confidence in predictions about the performance of a 
repository.
    Other key areas of research include work to obtain a better 
understanding and estimation of seepage of water into 
repository tunnels and potential transport of radionuclides 
through the saturated zone under the repository. The Board 
notes that DOE has undertaken work in all of these areas, and 
we look forward to the results of these scientific studies and 
engineering analyses.
    In conclusion, Mr. Chairman, the Board believes that the 
Yucca Mountain site continues to merit study as the candidate 
site for a permanent high-level radioactive waste repository, 
and that work should proceed to support a decision by the 
Secretary on whether this site is suitable. However, 
significant uncertainties remain about the performance of both 
the natural and engineered barriers in a repository system. 
Results of scientific tests and engineering analyses already 
under way could help address the uncertainties about the 
performance of the repository system.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Jared L. Cohon follows:]
  Prepared Statement of Jared L. Cohon, Chairman, U.S. Nuclear Waste 
                         Technical Review Board
    Mr. Chairman, and members of the Subcommittee, good afternoon. My 
name is Jared L. Cohon. My full-time job is President of Carnegie 
Mellon University. I am here today in my capacity as Chairman of the 
Nuclear Waste Technical Review Board. It is my pleasure to represent 
the other members of the Board at this hearing.
    As you know, Mr. Chairman, Congress created the Board in the 1987 
amendments to the Nuclear Waste Policy Act to review the technical and 
scientific validity of activities undertaken by the Secretary of 
Energy, including the characterization of the Yucca Mountain site and 
the packaging and transportation of spent nuclear fuel and high-level 
radioactive waste. The Board takes very seriously its role as the main 
source of ongoing technical and scientific review of the Department of 
Energy's (DOE) civilian radioactive waste management program.
    The Board has been asked to comment today on the DOE's recently 
issued viability assessment (VA) of the Yucca Mountain site and on H.R. 
45, legislation amending the Nuclear Waste Policy Act of 1982. I will 
make some very brief remarks, and I ask that the full text of my 
statement be entered in the hearing record.
Comments on H.R. 45
    Mr. Chairman, many of the issues raised in H.R. 45 are policy 
matters that are outside the technical and scientific purview of the 
Board. I will therefore not comment on the specific provisions of H.R. 
45, except to urge that if phased development of an interim storage 
facility is authorized, sufficient resources are allocated so that 
scientific testing to support decisions about the suitability and 
possible licensing of the Yucca Mountain site can continue. I will be 
pleased to respond at the end of my statement to specific technical 
questions about the legislation from Subcommittee members.
    During the last year, the Board has devoted the majority of its 
efforts to (1) identifying the key areas of research whose results 
would improve the technical basis for making decisions about site 
recommendation and licensing, if the site is determined to be suitable, 
and (2) evaluating the technical and scientific work that supports the 
viability assessment of the Yucca Mountain site. I will now briefly 
discuss some of the Board's conclusions and comments related to these 
activities.
Some Conclusions from the Board's November 1998 Report
    In November 1998, the Board issued a report outlining its views 
about future research needed for addressing uncertainties about the 
performance of the repository system, including both the engineered and 
the natural barriers. The Board concluded in the report that although 
there are economic and technical limits to reducing uncertainties about 
the performance of the proposed repository system, the Board believes 
that some key uncertainties could be reduced further over the next few 
years through a focused research effort. One important line of work is 
to evaluate alternative and potentially more robust repository and 
waste-package designs. It is likely that improving these designs could 
increase confidence in predictions about the performance of the 
repository. Other key areas of research include work to obtain a better 
understanding and estimation of seepage of water into repository 
tunnels and transport of radionuclides through the saturated zone under 
the repository. The Board notes that the DOE has undertaken work in all 
these areas, and we look forward to the results of these scientific 
studies and engineering analyses.
    The Board's conclusions from its November 1998 report served as a 
technical basis for its review of the DOE's viability assessment.
Preliminary Comments on the VA
    The Board's November report, along with the access to information 
provided by the DOE throughout the development of the viability 
assessment, make it possible for the Board to provide these preliminary 
comments on this immense and detailed document. The Board's evaluation 
of the VA will be completed in the next month or two.
    I will begin with three general comments.

<bullet> First, the DOE deserves congratulations for completing the VA, 
        which is the most significant landmark thus far in the 
        characterization and evaluation of the Yucca Mountain site. The 
        viability assessment is a solid accomplishment that has enabled 
        the DOE to integrate large amounts of data and analyses, to 
        establish a preliminary repository design, and to set 
        priorities for work that needs to be completed before making 
        decisions about site recommendation and licensing, if the site 
        proves suitable. However, the Board concurs with the DOE that 
        the VA is simply a snapshot of the current state of knowledge 
        about the site; it was not intended to be and is not a 
        suitability determination.
<bullet> Second, the Board's preliminary comments on the VA reflect its 
        views that (1) all uncertainty about the performance of a 
        repository at any candidate site cannot, and need not, be 
        eliminated and (2) a ``defense-in-depth'' repository design 
        that includes both engineered and natural barriers is 
        appropriate in light of uncertainties about the projected 
        performance of any repository system over many thousands of 
        years.
<bullet> Third, because the Board did not have the expertise and 
        resources needed to review the cost estimates included in the 
        VA, it has no comment on their accuracy.
    Now, more specifically:

<bullet> The Board believes that, in general, the scientific studies 
        summarized in the VA were carried out in a manner that produced 
        good scientific information. The reports included in the VA are 
        well written and clearly presented.
<bullet> It is very hard to judge at this point how realistic the 
        ``bottom-line'' estimates of repository performance may be in 
        the VA. In fact, DOE representatives have stated that the VA's 
        total system performance assessment (TSPA-VA) cannot be used to 
        assess compliance with the regulatory standard. Because of a 
        general lack of data supporting some critical assumptions in 
        the mathematical models, some of the assumptions in the TSPA-VA 
        are likely to be overly conservative, while others may be 
        nonconservative.
<bullet> The VA relies quite heavily in some cases on the formal 
        elicitation of expert judgment. This was necessary and 
        extremely useful, given the lack of field and laboratory data 
        in certain areas and the equivocal nature of some of the data 
        in other areas. As the experts, themselves, pointed out, 
        however, expert judgment should not be used as a substitute for 
        data that can be obtained directly from site, laboratory, and 
        other investigations.
<bullet> The VA helps illuminate the state of knowledge about the three 
        major barriers that will be necessary to achieve a defense-in-
        depth approach to repository performance: the unsaturated zone, 
        the engineered barrier system, and the saturated zone. However, 
        it is clear from the information in the VA that there are 
        significant and substantial uncertainties about the performance 
        of each of these barriers and about how they would work 
        together to provide defense-in-depth. As pointed out by the 
        DOE, the TSPA-VA explicitly acknowledges the need for defense-
        in-depth analysis but does not provide such an analysis.
Closing
    In conclusion, Mr. Chairman, the Board believes that the Yucca 
Mountain site continues to merit study as the candidate site for a 
permanent high-level radioactive waste repository and that work should 
proceed to support a decision by the Secretary of Energy on whether the 
site is suitable. However, significant uncertainties remain about the 
performance of both the natural and the engineered barriers in a 
repository system.
    The VA is a significant accomplishment that enables the DOE to 
identify and set priorities among key areas of research that could 
improve the technical basis for making decisions about site 
suitability, site recommendation, and licensing. However, the Board 
concurs with the DOE that the VA was not meant to be, and should not 
be, viewed as a decision about the suitability of the Yucca Mountain 
site.
    The Board is pleased to note that the research priorities presented 
in the VA are consistent with those identified in the Board's November 
1998 report and that much of this work is already under way. Results of 
these scientific tests and engineering analyses could help address the 
uncertainties about the performance of the repository system.
    Thank you for the opportunity to provide these preliminary comments 
about the VA on behalf of the Board. I will be pleased to respond to 
questions.

    Mr. Barton. Thank you, Doctor.
    We now recognize the Honorable Robert Perciasepe, who is 
the Assistant Administrator for Air and Aviation at the 
Environmental Protection Agency.
    Your statement is in its entirety in the record, and we 
would ask you to summarize in 5 minutes.

                 STATEMENT OF ROBERT PERCIASEPE

    Mr. Perciasepe. Thank you, Mr. Chairman and members of the 
committee, for the invitation today to present EPA's views on 
H.R. 45, Nuclear Waste Policy Act of 1999. EPA--I will try to 
summarize here. EPA has already licensed the waste isolation 
plant, or so-called WIPP plant, as a geologic repository for 
highly radioactive waste, and that licensing was done in an 
open regulatory process, a process that I think would be a good 
model for us to follow for Yucca Mountain.
    We have been working pretty hard at EPA, and I am sure you 
have heard this before, to put the standards together as 
directed by Congress for the Yucca Mountain site. This is a 
tremendously complex technical issue covering a number of 
scientific and technical disciplines, as we have already heard 
from some of the other testifiers this morning. But I think it 
is important to note that these standards when they are 
promulgated, they must be credible to protect the public health 
and the environment while at the same time being feasible to 
implement, and I think these are two important policies that we 
are trying to follow.
    We have been working with the Department of Energy, the 
Nuclear Regulatory Commission, other members of the--in the 
offices in the government, like the Office of Science and 
Technology Policy, to ensure that these standards that we are 
working on will meet both of these criteria, and we have been 
ongoing with this work for quite sometime. We are in the final 
stages of doing this. I plan to personally visit this site this 
month, and we hope to very shortly conclude our work, and I 
think the Chairwoman mentioned that as well. We hope to then 
finalize those standards, and within a year after we would 
promulgate the drafts and take public comment on it.
    I would like to defer detailed discussion of that since we 
are in the final stages of putting that regulation together, 
and there will be a public comment period on it, and turn my 
attention now in summary to talk about some of our concerns 
with H.R. 45. I think I can summarize them in several different 
areas.
    First, the level of health protection in the bill is 
inadequate. It inappropriately eliminates an analysis of human 
intrusion, and it overrides all other local, State, and Federal 
laws. Let me expand on these a little bit.
    The 100-millirem-per-year release standard that is embodied 
in the act has a number of concerns for us, and let me mention 
several of them. First, it is based on an average--and I will 
talk about that in a minute--average member of the population 
in the vicinity of Yucca Mountain and the actual dose level 
itself. Let me give you some comparison. A 100-millirem 
standard represents a risk of about 1 in 500 fatal cancers. 
This level of risk is seven times higher than EPA's existing 
standard for geologic disposal of spent nuclear fuel. It is 
four times higher than the Nuclear Regulatory Commission 
standard for low-level nuclear waste. It is 3 to 20 times 
higher than the international standard for high-level waste 
disposal, and is 6 to 600 times higher than the risk level that 
EPA allows for other regulated facilities. Not only is that 
standard too high, but it is based on an average of a person in 
the general vicinity.
    I am not going to get into the mathematics. I think 
somebody said earlier they are into mathematics, but as 
everybody knows, the simple concept of an average is some 
people will be exposed higher, and some people will be exposed 
lower, therefore the average is 100. I just told you 100, even 
if it was the cap, is much higher risk than any other standards 
we use almost in the whole world for facilities, and obviously 
if you do it as an average, there are going to be people either 
closer to the facility or someplace that are going to be 
exposed to even higher levels of that. Not knowing what the cap 
would be, one could run a scenario given the existing 
population in a 20-mile area that some people could be exposed 
to 40 times the 100-millirem standard, and still we could be 
meeting a 100-millirem standard for an average. That is a 
cancer risk of 2 in 25. I don't think anybody in the room will 
decide that 2 in 25 is an acceptable risk level.
    I am going to talk very briefly about the postclosure 
oversight that is envisioned in the bill. It seems to envision 
some kind of institutional control of monitoring by the 
Department of Energy for 10,000 years. That is twice the time 
of recorded human history. While I have great faith that the 
Department of Energy will go on for a while, I am not sure 
about 10,000 years.
    Human intrusion. I don't want to say too much about this. 
We think it ought to be looked at as something that could 
happen, and that the National Academy of Sciences has 
recommended this, and doing this at the WIPP site went a long 
way to help ensure the public acceptance of that site.
    Ground water is an important component that needs to be 
looked at in the standard. There is a sole source aquifer here 
that could supply water for 250,000 people.
    We don't think NEPA should be--I am really summarizing 
here--NEPA should be limited. We don't think that--the EPA 
standards should not be applied here. I think the process of 
proposing rules, holding public hearings, soliciting public 
comment by an independent Environmental Protection Agency will 
increase the level of credibility here.
    The preemption of State and local governments, I think you 
have heard about that already. We have done this in the Federal 
Government. Congress has done this from time to time. But here 
the preemption is extreme and unprecedented, and we would say 
that the people of Nevada would object, and I think we have 
heard that.
    So let me say in summary I think that the idea that we need 
to move ahead here and that some of the Members who are talking 
about and supporting this bill, I think they feel it is 
necessary because it is going to lead to development of Yucca 
Mountain as a safe place to dispose of spent nuclear fuel. I am 
concerned that this could have the exact opposite effect, that 
it effectively weakens every safeguard, dilutes by averaging, 
assumes compliance. This is not a way to build public 
confidence. It is a very difficult and important decision we 
need to make as a country.
    So I will just stop there, Mr. Chairman, but we owe it to 
the future generations to try to make the right decision based 
on the best process we can put forward. Thank you.
    [The prepared statement of Robert Perciasepe follows:]
 Prepared Statement of Robert Perciasepe, Assistant Administrator for 
           Air and Radiation, Environmental Protection Agency
    Mr. Chairman and Members of the Subcommittee, good morning. I am 
Robert Perciasepe, the Assistant Administrator for Air and Radiation at 
the U.S. Environmental Protection Agency (EPA). I am pleased to be here 
today to present and discuss the EPA's views regarding H.R. 45, the 
``Nuclear Waste Policy Act of 1999.'' Thank you for the opportunity to 
testify before the Subcommittee regarding this legislation. EPA 
appreciates the Subcommittee's interest in the important issues 
surrounding the development of environmental protection standards for 
the Yucca Mountain repository for spent nuclear fuel and high-level 
radioactive waste.
                              introduction
    Decades-long use of electricity from nuclear power plants has left 
the United States with a significant problem: how to dispose safely of 
the tons of highly radioactive spent nuclear fuel and other wastes 
created as a result of this power production. Over the years, an 
international consensus has developed that the safest, most appropriate 
means of disposing of these highly radioactive materials is emplacement 
in a deep geologic repository. Since the 1940's, the federal government 
has assumed the ultimate responsibility for the care and disposal of 
high-level radioactive waste and spent nuclear fuel generated by either 
commercial or government and military activities.
         history of activities to develop a geologic repository
    As the Subcommittee knows, efforts to address the disposal of spent 
nuclear fuel and high-level nuclear waste have been under way for many 
years. Various government agencies all have worked diligently to site 
and develop a deep geologic repository.
    In the Nuclear Waste Policy Act of 1982 (Pub. L. No. 97-425), 
Congress took significant concrete legislative steps toward the 
development of a geologic repository for the disposal of spent nuclear 
fuel and high-level radioactive waste. The 1982 Act gave the Department 
of Energy (DOE) the responsibility for siting, building, and operating 
a geologic repository. The 1982 Act also directed EPA to set generally 
applicable environmental radiation protection standards based on our 
authority under other laws, including the Atomic Energy Act (AEA) (42 
U.S.C. Sec. Sec. 2014 et seq.). Finally, the 1982 Act required the 
Nuclear Regulatory Commission (NRC) to implement EPA's standards by 
incorporating them into its licensing requirements for spent nuclear 
fuel and high-level radioactive waste repositories. This regulatory 
scheme, though modified, has survived for nearly 20 years.
EPA's General Standards for Disposal of Radioactive Wastes
    In 1985, EPA promulgated standards, found at 40 C.F.R. part 191, 
generally applicable to the disposal of high-level waste and spent 
nuclear fuel which is the waste disposed at Yucca Mountain and 
transuranic wastes which is the waste disposed at the Waste Isolation 
Pilot Plant (WIPP). Though Yucca Mountain and the WIPP are the only 
sites currently being considered, the EPA standards (40 CFR 191) are 
generic and are designed to apply to any future sites. In 1987, the 
U.S. Court of Appeals for the First Circuit invalidated the individual 
and ground water protection standards of the disposal standards and 
remanded the standard. (Natural Resources Defense Council v. EPA, 824 
F.2d 1258 (1st Cir. 1987)). The 40 C.F.R. 191 standard was overturned 
largely, in part, over concerns that it was not consistent with the 
Safe Drinking Water Act.
Nuclear Waste Policy Amendments Act of 1987
    In 1987, Congress amended the 1982 Act. Among other things, the 
Nuclear Waste Policy Amendments Act of 1987 (Pub. L. No. 100-203) 
selected Yucca Mountain, Nevada, as the only potential repository site 
at which DOE was to conduct site characterization activities.
WIPP Land Withdrawal Act
    On October 30, 1992, President Bush signed into law the Waste 
Isolation Pilot Plant Land Withdrawal Act (WIPP LWA) (Pub. L. No. 102-
579). The WIPP LWA reinstated the provisions of 40 C.F.R. part 191, 
except for those invalidated by the First Circuit in NRDC v. EPA. It 
also required EPA to issue standards to repromulgate the individual and 
ground water protection standards that the court remanded. Finally, the 
WIPP LWA specifically exempted Yucca Mountain from the 40 C.F.R. part 
191 disposal standards, though the standards would continue to apply to 
WIPP and to any other geologic repository for high level waste, spent 
nuclear fuel, or transuranic waste. The Agency promulgated the revised 
standards on December 20, 1993 (58 Fed. Reg. 66,398). On May 18, 1998, 
EPA certified that the WIPP facility will comply with the standards. 
The Agency is now in the process of inspecting the waste generators to 
ensure that certain waste shipped to the WIPP will be suitable for 
disposal at that facility. We expect these shipments to commence later 
in the spring.
Energy Policy Act of 1992
    The Energy Policy Act of 1992 (Pub. L. No. 102-486) contained 
several provisions relating to the development of a deep geologic 
repository for the disposal of spent nuclear fuel and high-level 
radioactive waste. Section 801 of the Energy Policy Act of 1992 
mandated that EPA promulgate ``generally applicable standards . . . for 
protection of the public from releases from radioactive materials 
stored or disposed of in the repository at the Yucca Mountain site.'' 
Section 801 also directed EPA to commission the National Academy of 
Sciences (NAS) to ``conduct a study to provide . . . findings and 
recommendations on reasonable standards for protection of the public 
health and safety.'' Congress directed that EPA's standards be ``based 
on and consistent with'' the NAS's findings and recommendations.
    You asked for the Agency's position on, and concerns with, H.R. 45. 
You also asked EPA to provide the Subcommittee with information 
regarding the Agency's current activities relating to the development 
of generally applicable standards for Yucca Mountain. H.R. 45, the new 
interim storage legislation, is essentially the same as H.R. 1270 
previously passed by the House, which the Administration made clear the 
President would have vetoed. EPA opposes H.R. 45 and the Administrator 
would recommend to the President that he veto the legislation if 
Congress passes it in its current form. EPA feels that the legislation 
is not needed. Further, the Agency has substantial concerns with a 
number of the bill's provisions. I will address these questions and 
concerns in the remainder of my testimony.
                     epa's draft proposed part 197
    EPA is in the final stages of developing a proposed rule 
establishing environmental protection standards for a repository at 
Yucca Mountain. This draft proposed rule is based on and consistent 
with the NAS's findings. Because the proposed rule is still under 
development, it is premature for me to discuss the rule's specific 
provisions in detail today.
    In an effort to develop workable standards for Yucca Mountain, EPA 
has worked closely with DOE and NRC under the auspices of the Office of 
Science and Technology Policy on numerous technical issues underlying 
the development and implementation of our draft proposed rule. EPA's 
goal is to ensure that the standards adequately protect public health 
and the environment, that the standards are implementable, and that the 
standards provide a fair test of the safety of the Yucca Mountain 
repository. I believe that this interagency cooperation has made our 
draft proposal better.
                   problematic provisions of h.r. 45
100 millirem/year release standard
    H.R. 45 would establish a release standard intended to ``prohibit 
release of radioactive material or radioactivity from the repository 
[that will] expose an average member of the general population in the 
vicinity of the Yucca Mountain site to an annual dose in excess of 100 
millirem.'' EPA believes that this standard does not sufficiently 
protect public health and the environment. The numeric standard not 
only is too high in comparison to other environmental standards, it is 
too high in comparison to the risk allowed in other environmental 
standards, both domestic and international. In addition, by protecting 
the ``average'' person in the general vicinity of Yucca Mountain at 
that numeric level, it potentially leaves those closest to the site 
exposed to much higher risks. Finally, the bill as written appears to 
ensure that Yucca Mountain will pass the standard regardless of its 
actual performance. I will go into each of these of these problem areas 
in greater detail.
    First, the lifetime risk of a person developing a fatal cancer as a 
result of exposure to 100 millirem/year is about 2 chances in 1,000, or 
1 chance in 500. EPA typically establishes public health and safety 
standards that limit risks to members of the public to between 
approximately 1 in 10,000 and 1 in 1,000,000. EPA's existing generic 
standards for disposal of spent nuclear fuel and high-level waste set 
the limit at 15 millirem/year. The lifetime cancer risk associated with 
this dose is approximately 3 chances in 10,000. Thus, the risk from 
exposure to 100 millirem/year exceeds the levels the Agency has already 
established for the types of waste that the Yucca Mountain repository 
is proposed to contain. This is the standard that EPA applied to WIPP 
and I can think of no reason why the people in Nevada should be exposed 
to higher risks than the people of New Mexico or other states.
    Second, the NAS, in its Congressionally mandated report on its 
findings and recommendations for technical standards at Yucca Mountain, 
suggested that the starting point for standard setting is consistent 
with a standard of 2 to 20 millirem/year. The NAS noted that this range 
is consistent with other U.S. nuclear regulations, and is therefore 
appropriate as a ``reasonable starting point'' for use in this instance 
(NAS Report, at 49). The other regulations considered by NAS include 
the WIPP site's regulations (40 C.F.R. part 191); the National Emission 
Standard for Hazardous Air Pollutants (NESHAP) promulgated at 40 C.F.R. 
part 61 pursuant to the Clean Air Act (42 U.S.C. Sec. 7412); 
regulations promulgated at 40 C.F.R. part 300 under the Comprehensive 
Environmental Response, Cleanup, and Liability Act (CERCLA) (42 U.S.C. 
Sec. Sec. 9601-9675); and EPA's ground water protection standards (see 
40 C.F.R. Sec. 191.16) (NAS Report, at 49-50).
    Third, while the International Commission on Radiological 
Protection (ICRP) has suggested the 100 millirem/year level as a 
guidance, it is important to note that the 100 millirem/year level in 
H.R. 45 has a different basis than the ICRP recommendation. The ICRP 
recommends a 100 millirem/year level based on exposures from all 
sources of radiation, including future sources, except for medical and 
background sources. Therefore, this dose level is not an accepted limit 
for radiation exposure from one particular facility. Yucca Mountain is 
in a region with several other significant sources of radiation 
exposure, including the nuclear test cavities and the low-level and 
transuranic waste facilities on the Nevada Test Site and the commercial 
low-level waste disposal system in Beatty, Nevada. Thus, the Agency 
believes that H.R. 45 misuses the international level of 100 millirem/
year by allowing just one source to contribute the entirety of a dose 
that is meant to be an upper bound of exposure from all sources.
    H.R. 45 is also inconsistent with international high level waste 
disposal standards which range from 5 to 30 millirem/year. H.R. 45 
would provide less protection to Americans than that afforded to 
citizens of other industrialized nations.
    Not only is 100 millirem/year too high, by applying the standard to 
the ``average'' person in the general vicinity, the standard 
potentially allows those people closest to the facility to receive much 
greater risks. By definition, if you average risks to a group of people 
there will be some with above average risks. The potential for some 
people to suffer exposure and endure risks that are much higher than 
average is especially great at Yucca Mountain. The best scientific 
information to date indicates that releases from the site will travel 
south of the facility with the prevailing ground water flow paths. 
People in other directions from the site will probably not be exposed 
to ground water releases. Each person included in the ``average dose'' 
calculation who receives no exposure means that someone else can 
receive a much greater exposure.
    Among how many people would this averaging occur? It is impossible 
to tell, as H.R. 45 says only those people in the general vicinity but 
does not define what the general vicinity is. While some have expressed 
the concern that the term can be construed to include people currently 
living 75 miles away in the outer Las Vegas suburbs, I am willing to 
assume that it is intended to be interpreted more reasonably, for 
example, to include everyone living within 20 miles of the repository. 
(Although 20 miles is very far from the facility for normal standard 
setting purposes, it must be remembered that at this time no one lives 
within 12 miles of the facility.) Even using a 20 mile radius, over 75% 
of these ``averaged people'' live west, north and east of the site in 
directions where they may receive no exposure to ground water 
contamination from the site at all. The remaining 25% of the people are 
spread out over a distance of more than 8 miles and their doses can 
easily differ by an order of magnitude. Accordingly, the people living 
south of the site who receive the highest dose may receive as much as 
40 times the 100 millirem standard. This amount, 4 rem/year, would 
impose a fatal cancer risk of 2 in 25. I hope we could all agree that 
any standard that allows anyone to endure risks as high as 2 in 25 is 
not adequately protective.
    Instead of this averaging approach, typical radiation standards use 
either the ``critical group'' or ``Reasonably Maximally Exposed 
Individual'' approach. The NAS proposed using the ICRP's critical group 
concept as a means of providing a more accurate basis for an individual 
exposure standard, and for preventing unnecessary and excessive 
dilution of releases from the repository. One of the most important 
elements of this approach is that it limits the size of the assumed 
exposed population to prevent misleading dilution of the contamination. 
Only those people who receive roughly similar doses can be considered. 
Traditionally, in standard setting, the Agency has used a ``Reasonably 
Maximally Exposed Individual'' (RMEI) approach which closely 
approximates the critical group approach. In either approach, the 
applicable standard is more protective of the population as a whole 
because it applies to those individuals identified to have the highest 
level of risk. These approaches ensure that all people receive at least 
the protection that is promised by a given standard.
    Finally, section 205(d)(2) requires the NRC to assume that, after 
DOE closes the Yucca Mountain repository, ``the inclusion of engineered 
barriers and [DOE's] post-closure actions'' at the repository will 
suffice to: (1) prevent human activity that poses an unreasonable risk 
of breaching any of the repository's barriers, and (2) prevent any 
increase in exposure to radiation above the 100 millirem/year level 
specified in section 205(d)(1). Our legal interpretation of this second 
provision is that no matter how the repository performs in modeling to 
assess performance it simply cannot fail to pass the standards. When 
NRC reviews DOE's application for a license, the NRC must assume either 
that the canisters containing the spent fuel will not leak or that DOE 
will carefully watch the site for the next 10,000 years and somehow 
prevent any violation of the 100 millirem/year average dose level. This 
provision makes the actual performance of the repository irrelevant to 
licensing. In effect, H.R. 45 provides that even if Yucca Mountain 
releases high levels of radioactive contaminants, it should be licensed 
because DOE will always be there to fix whatever problems may arise. I 
believe that the assumption that we will be able to monitor the site 
actively for 10,000 years, twice the length of recorded human history, 
is at best flawed, and at worst, renders any serious effort to 
determine the safety of the site meaningless.
    Even if this problem is corrected, the basic premise of the section 
is faulty. H.R. 45 totally ignores the NAS recommendation that DOE 
perform an analysis of the effect of human intrusion on the 
repository's performance. Instead, H.R. 45 relies on DOE's 
institutional oversight to ensure that human intrusion does not occur. 
Even though the NAS acknowledged that accurately predicting the exact 
nature of future human intrusion is difficult, it recommended the 
inclusion of such an analysis in EPA's standards. The NAS made this 
recommendation because it believed that, despite the difficulty of 
accurately predicting future human intrusion, it is important for DOE 
to analyze the possible impacts of such intrusion on the repository's 
ability to contain the radioactive materials. Although the NAS found it 
unreasonable to assume that a system for post-closure oversight, based 
on active institutional controls, will prevent intrusions or releases 
in excess of allowable radiation release limits, H.R. 45 makes this 
very assumption. The NAS recommended use of a single, stylized scenario 
in which a drill penetrates a waste canister sometime in the future 
when some of the canisters have failed, and continues into the aquifer 
beneath the repository. Similarly, during the licensing of the WIPP, 
EPA's regulations required DOE to demonstrate the ability of the 
repository to protect future generations from the impact of intrusion 
into the repository. DOE's analysis went a long way toward assuring the 
public that the WIPP repository was safe.
Ground water protection
    H.R. 45 contains no provision for the protection of ground water 
for the Yucca Mountain repository. As a result, H.R. 45 as drafted 
would potentially permit an exposure limit of 100 millirems through the 
ground water pathway. Ground water is one of our most precious 
resources. Once it is contaminated, ground water is extremely difficult 
and expensive to clean. The protection of the Nation's ground water is 
one of the Administration's most critical environmental objectives.
    The need for ground water protection in this instance is especially 
compelling. It appears that the most likely path for radiation to 
escape from the repository is through the ground water pathway. As the 
NAS stated in its report, ``[n]ear Yucca Mountain, there is no flowing 
surface water that might serve as a source in preference to ground 
water.'' The nearby human population relies, and presumably will 
continue to rely, on the area's ground water for drinking, irrigation, 
and domestic use. Let me assure you that the ground water in question 
is not a minor amount. If there are releases from Yucca Mountain, they 
will ultimately contaminate a sole source aquifer capable of supplying 
drinking water for over 250,000 people. This is a significant resource 
that deserves protection. Therefore, adequate protection of the ground 
water around and underneath Yucca Mountain is crucial to the 
effectiveness of any applicable standards for protection of public 
health and safety. The waste proposed for disposal in Yucca Mountain 
will remain radioactive for many thousands of years and we must think 
of the water needs and health and safety of many future generations.
Limitations on the Applicability of NEPA to Yucca Mountain
    H.R. 45 limits the applicability of the National Environmental 
Policy Act (NEPA) (42 U.S.C. Sec. Sec. 4321-4370d) to DOE's activities 
at Yucca Mountain. Section 102 of NEPA (42 U.S.C. Sec. 4332) requires 
the preparation of an Environmental Impact Statement (EIS) for federal 
actions that significantly affect the quality of the human environment. 
One of the key features of the EIS is that the agency planning to 
undertake the major federal action in question must consider 
alternatives to the planned action. It is from a serious analysis of 
alternatives that good public policy is created. As written, H.R. 45 
precludes the incorporation of NEPA's core values in any assessment of 
the environmental impacts of either the interim storage facility or the 
repository. While there may be some justification in some minor 
limiting of NEPA analyses of issues already decided by Congress, H.R. 
45 prevents DOE from considering alternative sites, or alternative 
designs, for both an interim storage facility and a permanent 
repository, in any EIS it prepares pursuant to NEPA. A critical effect 
of these provisions is that, by limiting the alternatives that DOE may 
consider, they effectively will deny the public's right to comment on 
critical health and safety issues. Also, the provisions may lead to 
ill-informed decision-making on DOE's part because DOE will not receive 
input from the public on these various aspects of the facilities'' 
development.
Preclusion of Application of EPA Standards
    Section 205(d) specifically prohibits the EPA from 
``promulgat[ing], by rule or otherwise, standards for the protection of 
the public from releases of radioactive materials or radioactivity from 
the repository.'' It also precludes the NRC from incorporating in its 
licensing regulations for Yucca Mountain any such EPA standards 
existing on the date of the bill's enactment.
    The Energy Policy Act mandated that EPA, through a public process, 
develop standards for protection of the public for Yucca Mountain, 
consistent with the NAS's findings and recommendations. Section 205(d) 
short-circuits ongoing efforts at the Agency to develop public health 
standards for the permanent repository through a public rulemaking 
process, as the Energy Policy Act mandated. That process of proposed 
rule, hearings, and public comment serves to assure development of the 
most appropriate standards and to strengthen public confidence in the 
result.
Preemption of all other federal, state, and local laws
    EPA strongly objects to section 501, which contains an 
unprecedented preclusion of the application of any environmental laws 
that are inconsistent with, or duplicative of, the Atomic Energy Act 
and the Nuclear Waste Policy Act of 1999, to DOE's activities at Yucca 
Mountain. This provision makes unavailable the full panoply of 
environmental laws available to protect public health and the 
environment from potential releases from the repository. Further, 
section 501 preempts all state and local laws that are ``an obstacle'' 
to accomplishing or carrying out the Nuclear Waste Policy Act of 1999 
or a regulation promulgated thereunder. Since ``obstacle'' is not 
defined, it logically could apply to any requirement which increases 
the cost of DOE's operation of the site. In other words, Yucca Mountain 
becomes the only facility in the Nation where local, state and federal 
statutes and regulations do not apply.
    It is possible to envision several serious deleterious effects this 
section may have. For example, section 501 will preclude application of 
the Safe Drinking Water Act to ground water affected by releases from 
Yucca Mountain. Protection of ground water resources is one of EPA's 
most important environmental objectives. It is extremely troublesome 
that, if section 501 as introduced becomes law, persons residing in the 
region surrounding Yucca Mountain will have less protection of their 
drinking water supply than persons living elsewhere in the country.
    Moreover, section 501 raises significant federalism concerns. It is 
not uncommon for the federal government to preempt state laws in some 
regulatory areas, especially where state and local laws may conflict 
with a national regulatory scheme established in a federal statute. 
Here, however, the preemption is extreme and unprecedented. It applies 
to one facility. It denies the State of Nevada, its affected local 
governments, and its citizens any legal avenues for remedying public 
health and safety problems that arise because of the location or 
operation of the repository at Yucca Mountain.
                               conclusion
    In conclusion, EPA opposes H.R. 45 in its current form. EPA 
believes the legislation is not needed. I know that many of you believe 
that this bill is necessary because it will lead to the development of 
Yucca Mountain as a safe place to dispose of spent nuclear fuel in 
particular and to nuclear waste disposal in general. I fear that it 
will have exactly the opposite effect. H.R. 45, no matter how well 
intentioned, effectively weakens every safeguard of public health and 
safety. It sets weak standards, then further dilutes them by averaging 
over large numbers of unaffected people. In key areas, the bill directs 
NRC to assume compliance rather than to evaluate the performance. Other 
state or federal laws are simply overridden if they present an obstacle 
to operating the site. This is not the way to build public confidence 
in, and acceptance of, a controversial public project. I believe that 
the regulatory process can work, that the combination of EPA standards 
and NRC implementation will, using good science, demonstrate in an open 
and fair public process the true performance capabilities of Yucca 
Mountain. If the site is safe, it will pass the standards and waste 
will be emplaced, if not, then the site will be rejected. This is as it 
should be. In deciding whether or not to place the Nation's spent 
nuclear fuel in Yucca Mountain, we are making a decision that will 
affect future generations for thousands of years. We owe it to the 
future to spend time now making sure we make the right decision.
    Thank you again for the opportunity to appear today before the 
Subcommittee to present the EPA's views regarding H.R. 45, the 
``Nuclear Waste Policy Act of 1999.'' This concludes my prepared 
statement. I would be happy to answer any questions that you may have.

    Mr. Barton. Thank you, sir.
    We now welcome the Deputy Assistant Attorney General from 
the U.S. Department of Justice, Mr. Stuart Schiffer, for 5 
minutes, and of course your written statement is in the record 
in its entirety.

                STATEMENT OF STUART E. SCHIFFER

    Mr. Schiffer. Thank you, Mr. Chairman, members of the 
committee. I am dismayed how quickly you got to me. I saw the 
size of this panel and thought I had hours to think of 
something to say.
    We have a brief written statement which we have submitted, 
and I think I can be even more brief in summarizing because Mr. 
Barrett has already ably summarized the litigation.
    In particular I don't want to take your time to outline the 
things I believe I am precluded from discussing. I simply note 
that our involvement in the Department has been from the 
standpoint of litigation. Most of it is still pending. Over and 
above any other concerns about the pending litigation, most of 
it is at a fairly early stage, so anything I speculated about 
probably wouldn't be worth its content anyway.
    Mr. Barrett noted we had essentially two groups of cases. 
The second group effectively has two subsets. The first cases 
were filed in the Court of Appeals for the District of Columbia 
Circuit under the review provisions of the Nuclear Waste Policy 
Act. In those cases utilities sought to require the government 
to perform specifically the contract; in other words, to honor 
the terms of the contract that would have required the 
Department of Energy to begin accepting spent nuclear fuel 
beginning on January 31, 1998.
    The court of appeals declined to order specific 
performance, noting that the contract contained its own 
remedial scheme, disputes clause, providing for claims to be 
submitted to the Department of Energy in the first instance and 
then to be appealed to a Board of Contract Appeals, and that 
this disputes clause could provide a remedy that was adequate 
without the specific performance remedy.
    At the same time, the court noted, as Mr. Barrett already 
mentioned--the court ruled, I should say, that the Department 
of Energy could not invoke the unavoidable delays provision of 
the standard contract. This was something that was--review was 
sought in the Supreme Court, and the Supreme Court recently 
denied review of that ruling.
    At the same time in the second set, we have to date 10 
cases pending in the United States Court of Federal Claims 
filed by utilities, and they seek amounts at least in their 
terms ranging from $70 million anywhere up to in excess of $1 
billion. If you add up the amounts sought in the 10 cases filed 
to date, they exceed $8 billion.
    When I mentioned two subsets, we moved to dismiss a large 
number of those cases, again arguing that the contract itself 
contained the remedial scheme that utilities needed to follow 
in the first instance. As Mr. Barrett noted, in the first three 
of those, which involved utilities that were no longer 
generating nuclear electric power, the court read the contract 
to say there was no real refund provision and there was no 
ongoing payment of rates into the fund; therefore, there 
couldn't be an offset. The court found that a breach of 
contract remedy was available, and we are in the early stages 
of discovery on what the damages might prove to be in those 
cases.
    The second group of cases involve utilities that are still 
generating electricity. We at least believe the disputes clause 
is more clearly applicable. The court has not yet ruled on our 
motion there.
    To end with what I began with, things that I am unable to 
discuss at any length, the committee did ask in its invitation 
to have us testify that we address the source of any funds for 
any judgments or settlements which result from these cases. 
That is an issue that is more difficult than appears on the 
surface. It is currently being examined with recognition of the 
importance of the issue by our Office of Legal Counsel in the 
Department, which prepares formal opinions on issues such as 
this.
    In brief, just to capsulize the issue, there is an 
indefinite appropriation contained in title 31 of the United 
States Code to pay judgments and settlements. The provision is 
section 1304 of title 31. There are several qualifications on 
when that indefinite appropriation may be utilized, the most 
relevant of which is that it can be utilized only when there is 
no other appropriate source of funds. That is the issue that is 
currently being examined. As we go along, we will be pleased to 
work with this committee on this legislation and any other 
legislation.
    I know one issue that the committee is undoubtedly 
concerned about is the extent to which legislative changes that 
in turn alter existing contracts can create liability. We know 
that they can certainly create claims. It is something we would 
be pleased to work with you on. Thank you very much.
    [The prepared statement of Stuart E. Schiffer follows:]
  Prepared Statement of Stuart E. Schiffer, Deputy Assistant Attorney 
                     General, Department of Justice
    Mr. Chairman, and members of the subcommittee, I am Stuart E. 
Schiffer, and I am a Deputy Assistant Attorney General of the 
Department of Justice. I am pleased to testify today regarding the 
implications of recent litigation concerning the Department of Energy's 
obligations under the Nuclear Waste Policy Act of 1982.
    Let me note at the outset that much of the litigation about which 
you have asked the Department of Justice to provide testimony is still 
pending in the Federal courts. As a result, the Department's pending 
matter policy applies to any discussion of those cases. Pursuant to 
that policy, I will be happy to discuss matters that are in the public 
record.
    The Nuclear Waste Policy Act of 1982 authorized the Secretary of 
Energy to enter into contracts with generators of high-level 
radioactive waste and spent nuclear fuel--mostly nuclear power 
utilities--through which, in return for the utilities' payment of fees 
into the Nuclear Waste Fund, the Department of Energy agreed to start 
disposing of spent nuclear fuel created by the utilities' production of 
nuclear power beginning not later than January 31, 1998. The Department 
of Energy then promulgated standard contracts through notice and 
comment which contain the terms used in the utilities' contracts. In 
1987, Congress designated Yucca Mountain in Nevada as the sole site for 
which the Department of Energy is to perform a permanent repository 
feasibility determination. While site testing continues at Yucca 
Mountain, construction of the repository cannot begin. The Department 
of Energy has publicly represented that, at the present time, it 
anticipates that the federal repository will not be ready for use until 
2010.
    The Department of Energy's inability to begin acceptance of the 
spent nuclear waste by January 31, 1998 has resulted in two different 
tracks of litigation. The first set of cases were filed by utilities 
who had paid fees to the Secretary of Energy under the NWPA and by 
state commissions. These cases were filed in the United States Court of 
Appeals for the District of Columbia Circuit, as permitted by chapter 
108 of the NWPA, seeking to require specific performance of the terms 
of the standard contracts providing that disposal of spent nuclear fuel 
would begin by January 31, 1998. The D.C. Circuit denied the utilities' 
demand for specific performance, finding that the remedial scheme of 
the standard contracts offers a potentially adequate remedy to the 
utilities. That remedial scheme, which is set forth in the disputes 
clause in the standard contracts, requires the utilities to submit 
their claims for monetary damages to the Department of Energy 
contracting officer for decision, followed by an appeal by the 
utilities to the Energy Board of Contract Appeals of any claims that 
the contracting officer denies.
    Although the D.C. Circuit denied the utilities' requests for 
specific performance, that court also issued a writ of mandamus 
precluding DOE from excusing its delay in beginning disposal efforts by 
arguing on the grounds that it has not yet prepared a permanent 
repository or interim storage facility. Although we filed a petition 
for a writ of certiorari with the United States Supreme Court to 
challenge the writ of mandamus, the Supreme Court denied our petition. 
At the present time, several utilities are continuing to seek specific 
performance in the D.C. Circuit and to seek to compel the Department of 
Energy to reduce the fee payments for utilities still paying into the 
Nuclear Waste Fund.
    A second set of lawsuits is currently pending before the United 
States Court of Federal Claims. To date, ten utilities have filed 
complaints in that court, seeking damages ranging from $70 million to 
$1.5 billion, and totalling approximately $8.5 billion, for alleged 
breaches of contract and takings under the fifth amendment of the 
United States Constitution. We filed motions to dismiss in several of 
the cases, upon the ground that the utilities had failed to exhaust the 
administrative remedies which the standard contracts require, through 
submission of a request for an equitable adjustment to the Department 
of Energy contracting officer followed by an appeal to the Energy Board 
of Contract Appeals. With regard to utilities that have ceased 
producing nuclear power, the Court of Federal Claims, on October 29, 
1998, rejected that argument. The court determined that, because the 
utilities pay fees only during the period of time during which they are 
generating electricity, and because, according to the court, the 
standard contract contains no provision for a refund of previously paid 
fees, the contractual remedy of an equitable adjustment was unavailable 
to utilities that no longer generate electricity because they could not 
offset future fee payments by the damages that they were allegedly 
incurring as a result of the delayed spent nuclear fuel disposal. The 
court also found that DOE's failure to begin disposing of the closed 
utilities' spent nuclear fuel by January 31, 1998 constituted a breach 
of the standard contract, entitling those utilities to damages. 
Discovery related to damages in three cases involving utilities that no 
longer generated electricity has recently commenced. We are currently 
awaiting decisions upon our motions to dismiss in cases involving 
utilities that are currently generating electricity.
    This committee has requested that we address several points 
regarding these cases, including the issue of whether payments of 
judgments arising out of the pending cases would come out of the 
Nuclear Waste Fund. We are presently awaiting an opinion from the 
Office of Legal Counsel regarding this matter.
    The committee has also requested that we address the impact that 
any such payments may have upon program funding. The Department of 
Justice has no specific expertise relating to this issue. We believe 
that the Department of Energy is a better source of information 
regarding this particular matter.
    In light of the fact that the cases that I have described are 
currently pending in Federal court and the short time that we have had 
to review H.R. 45, we must reserve any specific comments regarding that 
legislation. However, we note that, to the extent that Congress, 
through H.R. 45, determines that the Secretary must increase quarterly 
fees or must change the timing of the collection of the one-time fee 
set forth in Article VIII of the standard contracts, which the 
utilities have the option of paying at any time prior to the first 
delivery of spent nuclear fuel under the current standard contracts, 
there is a likelihood that the plaintiff utilities will claim that this 
change would constitute another breach of contract for which they are 
entitled to damages.
    Finally, the Department of Justice joins EPA in its concerns that 
H.R. 45 would preclude application of EPA standards, limit the 
applicability of the National Environmental Policy Act, and preempt 
other federal, state and local environment, safety and health laws.
    This concludes my testimony. I would be pleased to answer any 
questions that the committee may have.

    Mr. Barton. Thank you.
    All members of the panel that wish to make an opening 
statement I believe have done so; is that correct? So we are 
going to start questioning. It is my understanding that members 
have indicated they want at least two rounds of questioning, 
and that is certainly acceptable to the Chair.
    The Chair is going to recognize himself for the first 5 
minutes. I will ask the gentleman from the Department of 
Justice, I was trying to listen carefully to what you said, but 
I missed it. Is the Department of Justice's position that any 
payments that have to be paid to the utilities that have 
successfully sued the Department of Energy are going to come 
from within the waste fund or from without?
    Mr. Schiffer. I think what I was saying is what I say to a 
lot of questions, that it was not at all yet clear. It is a 
question that is being examined elsewhere in the Department.
    Mr. Barton. There is still not a definitive position.
    Mr. Schiffer. That is correct, Mr. Chairman.
    Mr. Barton. I want to ask the gentleman from the Department 
of Energy, is it the current policy of your Department that you 
should be in continual violation of Federal law and not do 
anything about it?
    Mr. Barrett. No. We do--we would like to be able to 
discharge our obligation, but under the existing statutes, we 
have no facility where we can take this material to.
    Mr. Barton. So what is the Department's position, No. 1, on 
accelerating the acceptance, or, No. 2, on coming up with a 
payment plan to pay the damages for not complying with the law?
    Mr. Barrett. The central focus of the administration's 
solution to this is for the long-term permanent solution. That 
is to see if we could have a permanent geologic repository at 
Yucca Mountain.
    Mr. Barton. Say it again, sir. I was listening to my staff.
    Mr. Barrett. The central administration focus is to 
determine if we have a suitable repository site at the Yucca 
Mountain site, and that is where the focus of our work is.
    Mr. Barton. So you are focusing on a permanent repository?
    Mr. Barrett. Yes, sir.
    Mr. Barton. Now, the gentleman from the EPA indicated that 
the WIPP facility in New Mexico has been licensed. There has 
been no material transported to that. It is for a different 
type of material. It is a transuranic waste. Is there any 
support in the Department of Energy to use the WIPP facility 
for the type of waste that the commercial reactors are 
generating on an interim basis?
    Mr. Barrett. There is a completely different statute for 
the WIPP site versus the----
    Mr. Barton. I understand that. I am asking--you just said 
that you want to get a permanent repository. I don't have a 
problem with that. I have talked to the Secretary of Energy 
about that. But we have got a problem right now, and this bill 
sets up an interim facility out at Yucca Mountain which is the 
leading candidate for the permanent repository. Now, if the 
Department of Energy doesn't like that, logically you are going 
to look around for other facilities, and there is one that has 
been licensed for a different type of material. Is that under 
consideration, or is that not under consideration?
    Mr. Barrett. That is not under consideration. The statutes 
are very clear. We are to evaluate only one site for a 
commercial high-level waste repository, and that is the Yucca 
Mountain site.
    Mr. Barton. So you are obeying the law on that particular 
point.
    I want to ask the gentleman from the EPA, you talked about 
the concerns that your agency has with the 100-millirem 
standard, and I think that is legitimate to have a concern like 
that. I know you are working with the--with the NRC to come to 
a consensus on what an alternative standard should be. There is 
a study that was done back in 1986 by a gentleman named Carson 
Mark, who at that time was a member of the NRC Advisory 
Committee on Reactor Safeguards, and he and his staff did 
estimates here in the capital area back in May-July 1996. They 
found out that if you stood in the doorway of the Library of 
Congress all year, you would be exposed to 440 millirems. Are 
you aware of that?
    Mr. Perciasepe. There is a difference between background 
exposure and any additional exposure. I think that may--I am 
not familiar with that study, but that may----
    Mr. Barton. I could go through steps of the Capitol, inside 
the Capitol, inside the Russell Office Building, the Dirksen 
Office Building, but most of those measurements were over 100. 
And that is right here.
    Mr. Perciasepe. I am assuming it is related to background 
radiation versus additional exposure.
    I would also point out that the National Academy of 
Sciences, when they looked at this site, they recommended 
something between 2 and 20 millirems, and again, you see Madam 
Chairman mentioning 25, and they are talking about--I think we 
are zeroing in somewhere in that zone.
    Mr. Barton. If I understood your testimony, your written 
testimony, you had a concern that a 100-millirem standard, an 
average standard for the average citizen in the Las Vegas 
Valley, they would have a 1 in 500 chance of developing cancer. 
I am not sure you said it exactly that way. If that is 
literally true, somebody who worked in the Library of Congress 
and actually came to work every day, they ought to be falling 
like flies over there.
    Mr. Perciasepe. Well, I am not familiar with that study, so 
I can't----
    Mr. Barton. A millirem is a millirem; isn't that correct?
    Mr. Perciasepe. That is correct.
    Mr. Barton. Regardless if it comes from background 
radiation or--a millirem is a millirem. There is not--I mean, 
that is a unit of measure----
    Mr. Perciasepe. There has been some change over some time 
on how we look at it, but you are correct.
    Mr. Barton. You are not advocating that we tear down the 
Library of Congress or the Capitol?
    Mr. Perciasepe. I could go a lot of places with that, Mr. 
Chairman, but I would say no.
    Mr. Barton. Let me ask the distinguished Chairwoman what 
work is being done with EPA to come up with a standard, and the 
committee is very willing to--if 100 millirems is not the 
appropriate standard, we would certainly yield to the expertise 
of the NRC if your agency and the EPA can agree on a standard. 
So could you elaborate on that please, ma'am?
    Ms. Jackson. Yes, Mr. Chairman. I would say that if one 
looks at the pathways standard, and we have a place holder in 
our implementing regulation for Yucca Mountain of 25 millirem 
total effective dose equivalent from all pathways, the last 
understanding we have of the EPA standard is 15 millirem. I 
would say to you that our point of view is that the differences 
between those two things are negligible relative to 
uncertainties and risk coefficients.
    Mr. Barton. I want to make sure I understand that. The 
difference between what two things?
    Ms. Jackson. Fifteen millirem all pathways and a 25 
millirem all pathways.
    Mr. Barton. What is the difference between an all pathway 
standard and this 100-millirem average annual standard?
    Ms. Jackson. Well, our average, which is 100 millirem, is 
from all sources, all sources of radiation above background. 
The 25 millirem is from all sources at Yucca Mountain, so it 
would be all sources above background. The EPA's proposal is 15 
millirem.
    What I am saying is that there is what is known as a risk 
coefficient which translates a dose, a radiation dose, into a 
risk of latent cancer, of latent cancer fatalities. That risk 
coefficient is based on an extrapolation, actually, from 
Hiroshima and Nagasaki. There is enough indeterminancy in it 
that one essentially cannot make a definitive statement as to 
whether a 15 millirem standard gives more protection than a 25 
millirem standard.
    Mr. Barton. I understand that.
    Ms. Jackson. The fundamental differences between the EPA 
and the NRC relate to ground water, the fact that they would 
like to impose a separate ground water protection standard. We 
feel that that is not necessary.
    Mr. Barton. In addition to this other standard?
    Ms. Jackson. In addition to the 15 millirem all pathways. 
They basically want to lift out of that standard a different, 
separate standard for ground water protection.
    It is not that the NRC is not equally interested in ground 
water protection. We feel that the 25-millirem standard is a 
fraction of our overall 100-millirem standard that we feel is 
protective for public health and safety, but to take a count of 
uncertainties projected over a long time periods and to ensure 
that there is no exceedence, we would implement the rule with a 
25-millirem standard. And since the greatest exposure pathway 
at Yucca Mountain is ground water, we feel that that standard 
is equally--is adequately protective, so there is no need to 
have an additional ground water standard.
    I could go on and talk about calculational methodologies 
and the like, but where I think the discussion is settling on 
is this issue of the ground water.
    Mr. Barton. My time has expired. I wonder if the other 
Commissioners wish to elaborate on Chairwoman Jackson. I will 
give that opportunity, and I will give the gentleman from EPA 
time for rebuttal if he so wishes.
    Mr. McGaffigan. Mr. Chairman, just to be absolutely clear, 
and I know you don't deal with millirems every day, 100 
millirems per year----
    Mr. Barton. We go the other way. We deal with billions and 
trillions.
    Mr. McGaffigan. A hundred millirems per year is the current 
public dose limit for all sources of radiation other than 
background radiation. The average individual annual exposure is 
300 millirems. You are in a very high-threat occupation working 
at the Capitol, given the figures you cited earlier.
    Mr. Barton. They indicate the level of our judgment around 
here.
    Mr. McGaffigan. You also travel a great deal. A 
transcontinental airline flight will typically give you about 5 
millirems each time you crisscross the Nation. We have chosen 
25 millirems as a subset of the hundred for this particular 
activity, and that approach is consistent with what various 
international bodies have suggested, including the National 
Academy of Sciences. So, the Chairman's detailed statement 
supports the 25 millirem standard, and we assume your 
legislation permits us to take a fraction of the hundred and 
apply it to Yucca Mountain.
    Our rule also, I believe, fixes many of the other concerns 
that the EPA representative has raised about your bill, if our 
rule is indeed consistent with your bill. We do look at the 
intrusion scenario as was suggested. We do use an average 
member of the critical group approach as opposed to the average 
member of the population approach, which is, again, an 
international standard, and so I believe that if our rule is 
indeed consistent with your bill, most of the EPA concerns 
other than, as the Chairman said, the ground water concern are 
addressed bt NRC's rule.
    Our fundamental concern with the ground water, the 
additional ground water standard, is that if you apply it 
straightforwardly, you can convert a 15-millirem standard that 
EPA is advocating into a submillirem standard. The EPA standard 
for iodine 129, which is one of the isotopes you will find 
potentially getting into the ground water, equates to .2 
millirems, which is approximately one one-hundredth of 15. So 
you get an extremely conservative standard at that point well 
beyond what we believe is necessary for public health and 
safety and almost mindless.
    Ms. Jackson. Mr. Chairman, I know we exceeded our time, but 
let me just elaborate on the last comment Commissioner 
McGaffigan just made. The point is if the EPA has one standard, 
whatever it is, 15 millirem from all sources, separately 
applies a 4-millirem ground water--I mean a separate ground 
water standard, and they actually do it in terms of 
concentration limits in the water, that if you actually convert 
that to a radiological dose, it actually is a tiny fraction; it 
is one one-hundredth of what they say is the overall standard. 
So they de facto are creating not a 15-millirem standard, but a 
.2-millirem standard, and that is the basis----
    Mr. Diaz. Mr. Chairman, if I may just add one quick thing. 
Regarding the difference between 15 and 25, I mean, somebody 
can say the 15 is more protective--what the Commission is 
saying is that, really, there is no significant difference 
between 15 and 25 because it will get lost in the background 
where you are--you just mentioned in the Capitol--nor is the 
certainty on the effects, something that we can pinpoint. The 
bottom line is: what is the cost to the American people of 
actually reducing the standard further and further, when there 
is no significant health benefit to be derived from it?
    Mr. Barton. The Chair would recognize Mr. Hall for at least 
5 minutes and perhaps more.
    Mr. Hall. I will take less.
    Mr. Markey. Can I ask, Mr. Chairman, what is the procedure 
under which we are going to operate?
    Mr. Barton. I am going to attempt to continue the hearing.
    Mr. Markey. I am going to go over and vote. I would like to 
ask----
    Mr. Barton. We will guarantee you will be given at least 5 
minutes to ask questions of this panel, and I bet you are going 
to be given more than that.
    Mr. Markey. Thank you, Mr. Chairman.
    Mr. Hall. Mr. Schiffer, just to tie up the questions that 
the chairman has asked and to go back----
    Mr. Barton. Would the gentleman suspend. I have just been 
told, Congressman Hall, we have got two votes in a row, not 
just one, so we are actually going to take a little break. Do 
you want to ask now or after the break?
    Mr. Hall. Well, I will ask now.
    Mr. Barton. The gentleman is recognized for 5 minutes.
    Mr. Hall. I won't take 5 minutes. I realize that you were 
given a short time to look at the H.R. 45, and you reserved a 
lot of your comments regarding that legislation. Let me ask you 
about the scenario that is placed here where we are concerned 
about a congressional breach of contract. And just to get the 
record and lay the record clear and straight on that, DOE's 
breach comes from the nuclear waste fund. They are compensated 
out of that; is that right? It is correct, isn't it?
    As a matter of fact, DOE has already been held in breach, 
and the next breach could be even greater, but under the 
Winstar case that you have alluded to, that is still an open 
case only in the amount of damages. Is that the only thing? 
There is not anything up on appeal or request for rehearing or 
anything? They have alluded to the Court of Claims for the 
damages in that, have they not, in the Winstar case?
    Mr. Schiffer. Are you asking me, sir, if the Winstar case 
is final, or if these cases are----
    Mr. Hall. No, the Winstar case that you referred to here in 
your testimony.
    Mr. Schiffer. Winstar was a case arising out of----
    Mr. Hall. It is not connected here, but you referred to it. 
In this case it is final except in the amount of damages, and 
that is up to the Court of Claims. There is nothing pending on 
that that will change your testimony?
    Mr. Schiffer. That case was final with respect to the three 
thrifts before it where the court found there was liability--
there was liability for breach of what the Supreme Court 
ultimately found to be contracts. We are litigating a number of 
other cases arising from the thrift crisis and your 
legislation.
    Mr. Hall. But the hard cold facts are that if we have a 
congressional breach of contract, then taxpayers pay? There is 
no other place to go forward.
    Mr. Schiffer. The Winstar cases teach us that congressional 
legislation, however well intended and for the public good, can 
indeed be liability-creating for breach of contract purposes.
    Mr. Hall. I think that that establishes that. I want to ask 
more questions, but I think we better go.
    Mr. Barton. Since we have two votes, we are going to recess 
until 1:30. That gives about 45 minutes for Members' personal 
convenience and to have a little lunch. But we want our 
distinguished panelists back here at 1:30. That is eastern 
time.
    Mr. Perciasepe. Mr. Chairman, not to interfere with getting 
to the votes and the food, will I have a chance to respond to 
some of the comments?
    Mr. Barton. Yes.
    [Whereupon, at 12:50 p.m., the subcommittee recessed to 
reconvene at 1:30 p.m.]

                           afternoon session

    Mr. Barton. If we could come to order. I want to commend 
our panel for being on time. That is exemplary, given how many 
of you there are.
    Ms. Jackson. We aim to please.
    Mr. Barton. I appreciate that, Madam Chairwoman. The Chair 
is going to recognize Congressman Hall for 5 minutes and then 
we will, as other members show, either I will fill in, but I 
know Congressmen Markey and Pallone have told me personally 
they wanted to ask this panel some questions. So we will 
recognize Chairman Hall, and then if there are no other 
members, I will resume some of my questions. Mr. Hall for 5 
minutes.
    Mr. Hall. I told Markey we would adjourned till next week.
    Mr. Barton. That is definitely a plan.
    Mr. Hall. Mr. Barrett, let me ask you a question. I am glad 
to see on page 7 of your testimony you think the Department is 
more or less on schedule. That is a pretty brave statement to 
make, I think, based on history in the past. But they are 
pretty much on schedule with the environmental impact 
statements and plans to apply for the license for the 
repository, I think in the year 2002, and that you could begin 
accepting waste for disposal by 2010.
    Mr. Barrett. That is correct, sir.
    Mr. Hall. Though that is a lot later than we would like it 
to be, at least the date had not slipped since the last 
subcommittee hearing. Normally it slips and jumps every time we 
meet. You know, one of these days if we can figure out how to 
do it, we are going to hold all you folks to a projection and 
to a date. We are not smart enough to do that. I am not sure I 
know why you didn't meet the dates. Ms. Jackson has been there 
and given me the time to explain those things and to say from 
this point forward they were in better shape to make these 
projections. Do you think that is a realistic timeline? Can you 
meet that, and who is to keep you from it?
    Mr. Barrett. If we complete the environmental impact 
statements, the draft and the final, if we recommend the site 
to the President, should the site be suitable, and most 
importantly if we get the needed appropriations that we have 
requested, I believe that 2010 is very doable. The license 
application date in 2002 will be doable, given needed 
appropriations, and a site that is found to be suitable through 
the evaluation process. And regarding the licensing schedule, 
which the Chairman mentioned that they are prepared to do, if 
the License review stays on schedule, I have confidence in the 
2010 date.
    Mr. Hall. A lot of people who are picking up the bill for 
it and, granted, will benefit from it if and when it ever 
happens are going to make a lot of tough decisions based on 
your projection. You understand that, surely, don't you?
    Mr. Barrett. Yes, sir. We understand this is very serious 
and very important.
    Mr. Hall. I guess, Dr. Cohon, your testimony was 
complimentary about DOE's recent report on the viability of 
Yucca Mountain for a repository. And we appreciate that 
assurance that DOE and their work seems to be on the mark or 
done in a professional manner, which I don't question. I just 
have a real problem with the time, from 1982 when we started 
and we thought we could see the end somewhere down there, and 
every time we met we were told that it couldn't be met and we 
would have to go out and come in again, start all over.
    Can you tell us what are the biggest questions that you 
think that DOE--remaining questions that face you, and what do 
you have from here on out to make those projections work, and 
what are you doing to resolve and move the program forward? 
That is an easy one. You ought to knock that one right out of 
the park.
    Mr. Cohon. Thank you for that softball, Mr. Congressman. As 
I said in my testimony, the DOE in fact is pursuing work in all 
the areas that we identified and the DOE also identified as the 
critical ones for further research before making the 
suitability determination currently scheduled for 2001--major 
areas. And it is well outlined in the viability assessment, so 
I won't go through it in detail. But they include the so-called 
unsaturated zone; that is, the area in which the repository 
itself would be located; and in particular how water moves 
through that; and in particular, seepage into the tunnels in 
which the waste would be placed, trying to predict that; the 
effect of that on waste packages and the performance of the 
materials in those packages, especially understanding more 
about the corrosion properties of the materials that DOE is 
studying, that is a key. And then finally, understanding if 
these packages are breached, and surely they will be 
eventually, given enough time, how the materials would be 
picked up by water and moved through the rest of the 
unsaturated zone to the saturated zone and eventually to the 
accessible environment. Here where special interest is, as is 
DOE, in retardation of the unsaturated zone for the movement of 
radionuclides through it, as well as retardation in the 
saturated zone, the water table after the material reaches the 
water table, these are big areas of uncertainty, and these are 
the things that we think the DOE should be focusing on, and 
they are.
    Mr. Hall. And if they focus on them, there is something 
they can do about it to keep us on target for the projections 
that have been made?
    Mr. Cohon. The time projections, you mean. The Board feels 
that the current schedule, which has been the schedule in place 
for some years actually, of a suitable determination in 2001 is 
very ambitious. That is not to say it is not doable but there 
is considerable work yet to be done.
    I want to emphasize very strongly that the viability 
assessment was an extremely important milestone. Even though it 
does not establish suitability, nor was intended to, it allowed 
the DOE to bring together and integrate all the information 
that it had collected to date and make sense out of it, make a 
whole picture out of it, and to identify very clearly the 
remaining information that they need to get.
    That could not have been said even 1 year ago, Mr. 
Congressman, and certainly not 5 years ago or 10 years ago. 
That is real progress by the DOE.
    That is not to say we don't have work ahead of us. As I 
said, we do. It is a very ambitious schedule to get all the 
work done before 2001 when the suitability determination is 
scheduled to be made. We will see if they can make it.
    Mr. Hall. Anybody else? Chairman Jackson, would you like to 
comment on that?
    Ms. Jackson. To this point, I think the schedule has been 
proceeding according to what you have heard in the past. I 
think that we do have some concern relative to having adequate 
resources if this bill passes. Because it also requires 
activity on an interim storage facility, we need to have the 
resources to allow us to be able to move along in a dual way on 
both the central interim storage facility and the repository. 
But as things stand in terms of satisfying the requirements of 
the existing law with the schedule that has been laid out for 
some time now, things seem to be moving along in that way.
    Mr. Hall. I thank you and I yield back my time.
    Mr. Barton. Thank you, Congressman Hall. The Chair is going 
to recognize the gentleman from Massachusetts. Would it help 
the gentleman if we recognize you for 10 minutes?
    Mr. Markey. That would be so great.
    Mr. Barton. Because I am going to ask some more questions, 
but if you can do it in 10 minutes, you indicated you had some 
other activities.
    Mr. Markey. Excellent.
    Mr. Hall. Eight minutes have already gone.
    Mr. Barton. We are on a logarithmic scale. We would 
recognize the gentleman from Massachusetts for 10 minutes.
    Mr. Markey. Thank you, Mr. Chairman. That will help me to 
recap just how we got here today. It all begins in the early 
1980's on this committee when the nuclear industry comes in 
lobbying us passionately for the passage of the Nuclear Waste 
Act. They just push us toward passing this legislation, 
demanding it, insisting upon the bill passing to solve the 
nuclear waste issue.
    In effect, they testified at this very panel, telling us 
that it is not that hard to solve the nuclear waste problem and 
that they will cooperate with our government in helping to get 
this problem solved, working closely with the Reagan 
administration in order to accomplish the goal; the Reagan 
administration agreeing it is a problem that can be solved but 
consulting with the private sector all the way, who is 
demanding that the legislation pass.
    People like me, I oppose the bill because there are NEPA 
exceptions built into it, and they are not going to build a 
repository big enough for defense waste as well.
    If there is a nuclear waste problem, why don't we build a 
facility big enough for the military nuclear waste as well, 
which they don't want to do because they just have their own 
little public relations problem.
    But the bill passed, and what it set up was a process 
whereby several different potential waste sites around the 
country would be studied, including sites in New Hampshire, 
Maine, North Carolina, Tennessee, Louisiana, Texas, Washington, 
Nevada. The plan was to eventually site one dump east of the 
Mississippi and one west of the Mississippi. That is where we 
were in 1982.
    And then the sites started dropping off as the Reagan 
administration was looking at these different possibilities. 
Jim Baker did not want New Hampshire on the list. I don't know 
why. I forget what the exact reason was why New Hampshire 
shouldn't have a nuclear waste site, but they took New 
Hampshire off of the list. And Maine dropped off because of the 
objections of Senators Mitchell and Cohen, two significant 
players in the Senate at that time. North Carolina, because Jim 
Broyhill was the ranking member on this committee at the time. 
He didn't think North Carolina would be a good site for nuclear 
waste. And Louisiana was well represented by Bennett Johnson 
over in the Senate at the time, and he felt that the salt mines 
in Louisiana weren't the kind of place you should look to 
characterize for----
    Mr. Barton. Is there a question?
    Mr. Markey. Like most Congressmen, most of my questions 
come in the form of answers.
    So then you have Washington State. You have the Hanford 
Reservation up there. Tom Foley, at the time Majority Leader, 
didn't think the Hanford site would be good, so that was taken 
off as well. And Jim Wright came from Texas, which was very 
helpful in making sure the Texas sites would also be removed.
    Mr. Hall. We don't need it in Texas.
    Mr. Markey. We don't need it in Texas. Then it came to: 
where can we put it now after we have gone through this very 
detailed scientific study about where it should go? Let's see, 
which State only has two Congressmen and two Senators? Let's 
pick the smallest State we can find and stick it with the 
``nuclear queen of spades.''
    And this committee as a result comes back in 1988, and we 
pass a new law based upon our own very detailed scientific 
study, and we pick Nevada. We pick it, the committee. And it is 
under pressure from the nuclear lobbyists who are sitting out 
in the audience at that time, who are saying, pick Nevada. They 
lobby each one of us. They come into our offices. They demand, 
they beg, they cajole. And so we passed the bill saying it is 
Nevada, based upon the nuclear industry's demands that we do 
so.
    Now, what does the industry do now? Well, when DOE can't 
meet the ridiculous deadlines that were set by the nuclear 
lobbyists demanding the Congress pass laws toward that goal, 
and hasn't satisfied the political problems that the industries 
have back in their own home States, they sued the Department of 
Energy for breach of contract. They sued them after 
representing to the industry, to the Congress, and to the 
administration, that the problem was solvable. Never mind that 
the contract contained provisions allowing for unavoidable 
delays. They sue.
    Now, this is after the Reagan and Bush administrations 
can't get it done, the two most pro-nuclear administrations in 
the history of the United States. It is not as though the 
Department of Energy during those 12 years wasn't completely 
and totally committed to trying to solve the problem. It was 
only that it was unvoidable. So they sue and they convince the 
courts to buy their dubious breach-of-contract arguments.
    Now, the Justice Department testimony tells us that the 
industry is now asking for over $8 billion in damages for those 
breach of contracts. If the courts were to award them, that 
would empty the nuclear waste fund. Moreover, more and more 
utilities reach the point in time when they come to the head of 
the line of companies who would have been eligible to get rid 
of their waste, had DOE been able to meet the January 1998 
waste acceptance deadline, and more and more lawsuits will be 
launched.
    What remedy will be available to them if the nuclear waste 
fund is empty? Presumably it would be deferral of further 
payment of fees into the fund. And so what I can very easily 
see happening here is a feedback loop of litigation, resulting 
in further delays, resulting in yet further litigation. 
Essentially, the industry will be transforming the nuclear 
waste fund into a giant nuclear Ponzi scheme in which early 
winning litigants are compensated out of the fees paid by other 
utilities, until the whole radioactive house of cards 
ultimately collapses.
    What happens at that point? The utilities force the 
taxpayers to move in and pay for cleaning up the mess made by 
the industry in demanding to the Congress that we pass an 
unachievable goal and then sueing to deplete the fund that was 
going to be used to accomplish that goal. And then they turn to 
the taxpayers who had nothing to do with this debate from the 
get-go and ask them to pick up the costs for eternity of 
solving the problem. And at the same time they pocket the 
judgments in the cases, in the settlements that they reach with 
Uncle Sam.
    So my concern here is that as we get deeper and deeper into 
this story, more and more people forget how it all started, how 
we got to this point, how all of the original assumptions were 
completely unrealistic; and that we, the Congress, and the 
American people are now suffering from our detrimental reliance 
upon the holding out by the nuclear industry that this was an 
eminently solvable problem; and that they should be ashamed of 
themselves for then suing our government to deplete the funds 
that were put into this kitty in order to solve the very 
problem that they wanted us to work on.
    And the people who were down here, who were doing their 
best to deal with this issue scientifically, should be praised 
because they are doing their absolute best. But they didn't 
pick a site near an earthquake fault; we did. And as we ask 
them to reconcile this decision with the assignment which we 
have given them, it is natural that it is going to cause a lot 
of problems.
    So make no mistake about it: The industry has no intention 
of ever seeing a permanent repository opened. Ever. They have 
no concern about it at all. Never have, never will. They will 
be content to leave the problem festering out in a warehouse in 
Nevada in the hope that some future generation will find a way 
to deal with it.
    We are engaged here in an intergenerational punting of this 
environmental issue. Hopefully two and three generations from 
now, they can figure it out. That is what this generation of 
nuclear executives say. Someday they may come back and even 
convince us to spend tens of billions of dollars on this issue. 
Who knows?
    But I think we have a responsibility to make sure that this 
problem is solved in our generation. We consume this nuclear 
electricity. We get the benefits of it. We should solve the 
problem, and we should not allow the nuclear industry to allow 
for this highest environmental goal which our society has, that 
is, the siting of a permanent nuclear waste repository, to be 
lost because it no longer squares with their short-term 
political agenda.
    So my question is to you from the Environmental Protection 
Agency----
    Mr. Barton. You have got about 45 seconds.
    Mr. Markey. [continuing] How bad would it be if these 
environmental standards were compromised? Is it a really 
dangerous environmental condition that will be created if this 
law is passed? How dangerous is it?
    Mr. Perciasepe. Well, I don't think that we have progressed 
far enough from all the work that is being done to know exactly 
what could happen. That is part of the licensing process. The 
key to the licensing process and the point that I was trying to 
make in my testimony is that you want to have protective 
standards that provide the public confidence that the work that 
will be done to design and implement this project will be 
protective and they should be equivalent or very similar to 
what we would do anywhere else in the country. And I pointed 
out that we have already done this at the waste--the WIPP site. 
We do this for every hazardous waste site around the country.
    And the question is, the point I was trying to make, 
Congressman, is that the standards, if appropriately set in a 
way that is protective as we have been in all areas of these 
kind of--whether they be hazardous waste disposal or 
repositories, geologic sites, whatever--that that bill is 
public confidence and that--so I can't predict nor have I 
predicted----
    Mr. Markey. Would EPA recommend a veto in its present form?
    Mr. Perciasepe. Yes, they would recommend to the President 
that the bill in its present form be vetoed. That is in my 
written statement.
    Mr. Barton. The gentleman's time has expired. The Chair is 
not going to go vote. So I am going to miss this vote honoring 
King Hussein. It is going to be a unanimous vote with the 
Members present, so I am going to stay and continue the 
hearing. Obviously if members wish to go express themselves on 
that, they should.
    I am going to recognize the gentleman from Michigan for 10 
minutes. If other members are not present when he concludes, I 
will resume questioning this panel but I want to finish this 
panel.
    Mr. Dingell. I am very anxious to not miss this vote. Let 
me first of all ask this question quickly. We spent now about 
$9 or $10 billion on characterizing this site, have we not? 
What is the number?
    Mr. Barrett. We have spent a total of about $3 billion on 
the Yucca Mountain site, including payments to States and 
oversight at Yucca Mountain.
    Mr. Dingell. And we have collected $9 or $10 billon and we 
are going to have to spend the whole $9 or $10 billon to 
characterize it at the present rate of expenditure before we 
complete this site, are we not?
    Mr. Barrett. We have looked at the total system.
    Mr. Dingell. Yes or no?
    Mr. Barrett. Yes.
    Mr. Dingell. So we have got to do something to solve the 
problem; right?
    Mr. Barrett. Yes.
    Mr. Dingell. Let's talk about the Tucker Act. U.S. versus 
Winstar sounds a very important cautionary note when 
congressional legislation could be construed as affecting later 
contracts between private parties and Federal Government. Is 
that not so? This goes to Mr. Schiffer. Mr. Schiffer?
    Mr. Schiffer. Yes, sir, that is one way broadly to read 
Winstar.
    Mr. Dingell. I went through this with regard to the Penn 
Central business and I remember it cost us about $7 billion 
because the Congress was not careful in that particular matter. 
On the basis of the holding in U.S. v. Winstar, it very simply 
is that Congress should avoid drafting legislation that 
arguably affects pre-existing governmental contracts. Is that 
not so.
    Mr. Schiffer. I think that is also broadly so.
    Mr. Dingell. Is it possible that this legislation does 
affect pre-existing government contracts?
    Mr. Schiffer. Without suggesting that I have really been 
through the legislation enough to comment in detail, there are 
questions raised.
    Mr. Dingell. But it is a matter of concern, is it not?
    Mr. Schiffer. That is correct, sir.
    Mr. Dingell. Now, the amount of Winstar damages, the 
``Washington Post'' pegs it at $32 billion. I understand about 
$8 billion in potential claims are lying under that particular 
case; is that right?
    Mr. Schiffer. In the Winstar line of cases themselves?
    Mr. Dingell. Yes.
    Mr. Schiffer. It is hard to know exactly because many of 
the complaints do not state dollar amounts. We obviously think 
the claims are highly inflated and we think they are going to 
come in significantly below. But any way you look at it, there 
are substantial sums at stake.
    Mr. Dingell. You might get a surprise the other way, might 
you not?
    Mr. Schiffer. We are completely confident, as we always 
are.
    Mr. Dingell. The courts are notoriously spending taxpayers' 
money in lawsuits of this kind, are they not?
    Mr. Schiffer. I am sorry?
    Mr. Dingell. The courts are notoriously generous with the 
taxpayers' money in cases of this kind, are they not?
    Mr. Schiffer. Since we tend to believe in stinginess in 
that regard, I would sometimes characterize it that way.
    Mr. Dingell. The courts have a different view, do they not?
    Mr. Schiffer. That can be true.
    Mr. Dingell. From what source would the damage claims be 
funded?
    Mr. Schiffer. That is an issue that is being looked at by 
our Office of Legal Counsel.
    Mr. Dingell. If the fund is exhausted, they then come out 
of general revenues, however, is that not so?
    Mr. Schiffer. They could either come out of the 
appropriation for the payment of judgments or settlements, or 
if our Office of Legal Counsel determines that some other fund 
is available, that would be the source. I am just not in a 
position to speak to that now.
    Mr. Dingell. Now, Mr. Schiffer, you believe the plaintiffs 
would accept to construe the funding provisions of H.R. 45 as 
amounting to a congressionally induced breach of contract, do 
you not?
    Mr. Schiffer. I always assume the plaintiffs are ready to 
do that type of thing.
    Mr. Dingell. I recognize you do not speak to the merits of 
such arguments, but I do appreciate your raising this concern. 
Now, we are speaking in theoretical terms, but do you expect 
the plaintiffs asserting such arguments to cite the holding in 
U.S. v. Winstar as the basis for the claims?
    Mr. Schiffer. I think the plaintiffs in these cases have 
been doing that in articles I have read and in pleadings they 
have filed.
    Mr. Dingell. If such breach of contract claims succeeded 
and damages were awarded, where would the court get the money 
from? I am assuming it would either be the judgment fund or the 
nuclear waste fund; is that right?
    Mr. Schiffer. That is essentially the case. That is what is 
being studied now.
    Mr. Dingell. How do we avoid these potential Winstar 
problems? What drafting has to be done to avoid that?
    Mr. Schiffer. I don't think, Congressman, I am in a 
position to speak with any precision other than to offer our 
assistance in working with the staffs.
    Mr. Barton. Would the gentleman suspend? Simply, if you 
wish to make the vote, Congressman Dingell, you have got 3 
minutes in the vote and 5 minutes in the questioning time.
    Mr. Dingell. Mr. Chairman, your wise counsel is accepted. 
With your permission I will leave the room.
    Mr. Barton. I will keep this panel busy until you or 
another member comes back.
    Mr. Dingell. Thank you, Mr. Chairman. I will return 
promptly.
    Mr. Barton. You have 5 minutes remaining when you do 
return. In the absence of any other member, the Chair is going 
to recognize himself for such time as he may consume until 
other members return to ask questions. I wanted to ask the 
distinguished Chairwoman of the NRC and the gentleman from the 
Waste Transportation Board--he may have expertise on this. The 
Governor and the Congressman from Nevada talked about the 
disadvantage of this site because of earthquakes, and mentioned 
that there had been some earthquakes approximately 3.0 on the 
Richter scale and one as large as 4.0 within the last several 
months or at least several years. My understanding of the 
Richter scale is that if you go from a 3 to 4, that is a factor 
of 10 in the increase. My understanding is also that while the 
site design has not been finalized, preliminarily they are 
looking at a standard that would withstand an earthquake over 
6.5 and maybe as high as 7.0. So what is the difference in the 
degree of power between a 3.0 earthquake and a 7.0 earthquake?
    Ms. Jackson. Factor of 10,000.
    Mr. Barton. So although we have had some earthquakes in the 
region that have obviously been measurable, there has been no 
earthquake that would exceed what we expect to be the design 
capacity of the facility, is that correct?
    Ms. Jackson. As far as we understand from what DOE has 
represented in terms of the design of the waste packages, that 
is correct.
    Mr. Barton. Dr. Cohon, do you wish to comment on that?
    Mr. Cohon. Yes, I do. I don't want to preempt a line of 
questions that you are going along. Shall I wait till you have 
more earthquake questions?
    Mr. Barton. Will you answer that one and my fertile mind 
will come up--unlike Congressman Markey, I like to ask 
questions and not assume I know the answers.
    Mr. Cohon. The DOE has found, or the DOE's position is that 
seismic hazard, earthquake hazard, should not be viewed as a 
disqualifying condition for the site. The Nuclear Waste 
Technical Review Board agrees with that. We think they are 
correct in that assessment.
    Just to add a little more detail to Chairman Jackson's 
commentary with you and your own point, the location of this 
most recent swarm of earthquakes, a fault called the Rock 
Valley Fault, is not a surprise to DOE or to anybody else who 
studied the site. Indeed, it was anticipated that there would 
be earthquakes there. And furthermore as you pointed out, Mr. 
Congressman, the intention for the design--and we are confident 
that DOE can achieve this--is to have a design for the facility 
which would not be affected by earthquakes as large as the 
magnitude you mentioned in that location, some 25 to 45 
kilometers away from the Yucca Mountain site.
    So to summarize the key point, we do not believe it is a 
disqualifying condition.
    Mr. Barton. Let's assume the worst case. Let's assume that 
we had a massive earthquake, 7.0, perhaps even larger, and we 
actually had the interim facility licensed and in operation, 
which I understand is going to be an above-ground facility 
probably, with some coverage from the elements in terms of rain 
and wind.
    These canisters--what is the worst thing that could happen 
to one of these canisters in the interim facility, not down in 
the mountain in the permanent, but upstairs if we had a massive 
earthquake?
    Mr. Cohon. Everything I just said pertained to the 
repository, the underground permanent facility. None of it 
pertained to the surface. I would have to defer to someone else 
on the surface. We have not studied that.
    Mr. Barton. I have been told, and obviously am willing to 
be corrected, with these canisters the worst thing that would 
happen is they would dump over on their sides.
    Ms. Jackson. The standards we apply today for dry cask 
storage canisters would allow them to withstand an earthquake 
of the magnitude that you describe.
    Mr. Barton. Obviously we would rather there be no 
earthquakes or fewer earthquakes or smaller earthquakes, but 
this concern--and from a political standpoint it is obvious 
that people are going to be concerned if the thing is located 
where there have been some earthquakes. But from an engineering 
standpoint and a design standpoint, as Dr. Cohon said, in the 
Department of Energy's view and the Regulatory Commission's 
view, that is not something that hasn't been accounted for.
    Mr. Cohon. Right.
    Mr. Barton. Is there anybody that wants to dispute that? 
Madam Chairwoman, I would like for you to directly comment on 
the bill that is before us. In your view or the Commission's 
view, do you believe that if it were to pass and become law, 
that it would give the NRC the flexibility to properly manage 
and regulate this site or make sure that it was in a safe 
fashion put into operation?
    Ms. Jackson. Thank you, Mr. Chairman. If the understanding 
were that the 100-millirem standard embodied in the bill is 
meant to be an upper limit within which the NRC were able to 
implement a regulation, with a 25-millirem standard as a 
fraction of that; further, if the NRC were allowed to, our 
anticipation would be to, in fact, have an analysis done of an 
intrusion scenario having to do with a bore hole kind of 
analysis. If those kinds of understandings were there, we feel 
that H.R. 45 allows us the flexibility that we need to 
implement our rule.
    Mr. Barton. Mr.--I am going to say Perciasepe--am I close?
    Mr. Perciasepe. That is perfect.
    Mr. Barton. You indicated before the break that you wanted 
an opportunity to respond to some of the comments on the 
differences of opinion about the radiation standard that is 
currently under review in your organization as opposed to the 
NRC. I have got some other questions on that, but I want to 
give you an opportunity to respond before I ask them.
    Mr. Perciasepe. I won't go into great detail because I 
don't think it will serve the committee for us to debate it in 
great detail here, but I did want to say one thing about it. 
Our general policy in the administration and certainly at EPA 
is that potential sources of drinking water, and you can say in 
particular in an arid part of a country, ought to be protected, 
and no one here is saying that shouldn't happen.
    Our general policy also follows that the protection should 
be such that some future generation isn't going to have to 
treat it in some way to be able to utilize it. I think what we 
end up discussing here is how much contamination might occur 
before that would become a problem.
    Mr. Barton. You are focusing just on your concern about the 
groundwater.
    Mr. Perciasepe. That is correct, sir, and its utility in 
the future. And I guess I would say if this site is good and, 
you know, a lot of--you are already questioning the people who 
are working on that aspect of it--really this should not be an 
issue and we certainly don't, I believe, want to set up a 
system, as I mentioned earlier, a system where for some reason 
we decide that the area around here should have less protection 
or standards that are not as protective as we would have any 
other place in the United States. It seems like we would want 
just the opposite.
    We want to make sure that given the responsibility that the 
State of Nevada would be taking on here, that we would want to 
make sure that the protection is equivalent to what other 
people have. That being said, we continue to look pretty hard 
at how you would apply these standards, and I think that within 
that framework continues to be part of EPA's work on what its 
standards package would be. So I would just leave you with that 
and some of the philosophical reasons why I think we are very 
interested in groundwater protection.
    Mr. Barton. Now, we have got some other members here, so I 
am going to let--I have filibustered long enough, I guess, but 
I do have a few questions on this standard. The EPA was 
directed in 1982 on the Nuclear Waste Policy Act to develop the 
standard. They actually, to their credit or your credit--your 
agency actually did but the courts threw it out. We came out in 
the Energy Policy Act in 1992 and said you ought to issue--
again asked, directed that you should issue the standard. That 
hasn't happened yet.
    In preparation for this hearing, we were told at the staff 
level that Moses has come down from the mountains with the Ten 
Commandments and you are getting ready to issue the final rule, 
or at least it is on somebody's desk at the EPA, who is 
probably on vacation somewhere. When do you expect to actually 
have this final rule released? Is that subject to negotiations 
within the NRC? Are you all ready to go? Give us some guidance 
on timing.
    Mr. Perciasepe. I appreciate the question. I think it is 
appropriate. First, we also are trying to work with the 
National Academy of Sciences recommendations that we got in 
1996, and of course it is now 1999, and I think we need to get 
on with it. And I would agree with that statement. I think we 
are talking about weeks to maybe months, but I mean very soon 
we plan to--I want to personally visit the site. I think it is 
important for me to get a sense of what is going on out there. 
I am planning to go out there with the Department of Energy in 
a couple of weeks.
    The schedule that was up here which is missing now, that is 
related to the schedule that everybody else has been talking 
about, I think is totally doable from our perspective. There it 
is. It has the EPA standards sometime this year, with it being 
available next year. And the time for that process I think is 
showing with a question mark in the middle of the year. I am 
sure we can beat that.
    And I would also want to add, Mr. Chairman, we are not 
really negotiating with folks on this site. I do believe we are 
having, I think, constructive discussions with our colleagues 
that relate to how we should approach the standard-setting 
process within the confines of the law that you guys have 
provided to us. And I think that that has been a helpful thing 
to improve it.
    Mr. Barton. As the subcommittee chairman, let me give you 
some advice.
    Mr. Perciasepe. Yes, sir, I am ready.
    Mr. Barton. It is only advice. It is not a mandate. I don't 
believe in too many mandates. Based on this hearing record, we 
are going to try to develop a consensus, at least on the 
subcommittee, about what changes need to be made in the pending 
bill and incorporate those on a bipartisan basis and have a 
subcommittee markup in the very near future, certainly within a 
month, a month and a half.
    The Secretary of Energy has asked for a little time and we 
will try to honor that request. But this isn't something that 
we plan to be holding in abeyance for the next 6 months. So I 
would strongly encourage you to get with your people and 
Administrator Browner and whoever else is involved in these 
constructive discussions and be constructive as expeditiously 
as possible, because we would like for you to--not you 
personally, but the agency to have its rule available to us 
before we go to markup.
    Mr. Perciasepe. I appreciate that.
    Mr. Barton. The Chair will recognize the gentleman from 
Illinois, Mr. Shimkus, for 5 minutes.
    Mr. Shimkus. Thank you, Mr. Chairman.
    Mr. Barton. Actually, Mr. Dingell is back and he had 
suspended.
    Mr. Dingell. I will defer, Mr. Chairman.
    Mr. Barton. I didn't realize that Mr. Dingell had come 
back. We will go ahead with Mr. Shimkus for 5, and then Mr. 
Dingell has 5 minutes remaining on his.
    Mr. Dingell. That is fine, Mr. Chairman. I thank you.
    Mr. Shimkus. I thank the chairman. I thank the ranking 
member. It is good to see familiar faces.
    In my second term now, I can start figuring out some folks 
who testified before the committee before. So welcome. And I 
apologize. This is one of the craziest schedules I have seen 
for a long time, and I have been up on the floor three times 
but haven't made it back into the room because of guests 
pushing me away to other areas. And I apologize for that. I 
would like to thank the DOE for the interim report. I think it 
is telling.
    An initial comment I would like to make is that we also 
lose sight that we already have 78 temporary storage sites 
across the Nation. There are some benefits to locating them 
into one site, and I would encourage that we do that.
    Also before I left, and this may have been addressed 
earlier and I apologize, I would like to know, Mr. Barrett, 
first can you define for me the difference between 
``viability'' and ``suitability''? Was that asked earlier?
    Mr. Barrett. The viability is basically a status report of 
what we know about Yucca Mountain today as of 1998, the end of 
1998. It lays out the work that we intend to do to get to the 
suitability, which is a higher decision.
    The suitability is where the Secretary under the 1982 
statute does the following; we have to complete the 
environmental impact statements, draft and final, have public 
hearings, receive comments from the public hearings in the 
State of Nevada, and receive a letter from the Chairman of the 
Nuclear Regulatory Commission. Then we would assemble all that 
information to see if the site meets the criteria necessary to 
be designated the Nation's geological repository. That 
statutory requirement is a much higher decision.
    The viability is a status report to stop or to continue.
    Mr. Shimkus. The viability assessment is going relatively 
well, we would think. There would be some disagreements, I 
guess. But if it is declared viable, do you know--with the 
viability indicating that it is a suitable site, but I can't 
use that word because of ``suitability,'' the administration, 
will they make the determination based upon viability or will 
they make it based upon suitability?
    Mr. Barrett. Well, the Secretary must determine that the 
site is viable, to continue to see if it could be suitable. 
This is higher level. So it is worthy--let me avoid the word 
``suitable.'' It is worthy of continuing the scientific work to 
see if this site is scientifically suitable to be the Nation's 
repository. If we can make the demonstrations on science that 
the site meets the suitability criteria, then the site would be 
recommended after we complete the administrative processes that 
are involved.
    Mr. Shimkus. Will the political determinations be made in 
the suitability equation? Will political considerations be made 
in suitability determinations?
    Mr. Barrett. The process for the site to be designated the 
Nation's Geologic Repository Site has a political component to 
it. However, first there is the scientific component. That is 
what we are focused on now, the scientific suitability of the 
site. This is job one that we are focusing on. Once that is 
done, we have the chance for many public hearings throughout 
the Nation on this decision through the environmental 
processes.
    Afterwards, the Governor of the State of Nevada as well as 
the legislature of the State of Nevada under the NWPA has the 
authority, if they wish, to disapprove the site. The site would 
remain disapproved unless there is a ruling by the Congress to 
override their disapproval. So there is a political component 
as well as a scientific. But we are continuing to focus now on 
the scientific suitability of the mountain.
    Mr. Shimkus. Based upon listening to the Governor's 
testimony, I have great respect for him, but there was nothing 
positive about the site, the facility, and anything that we are 
planning on doing. He also brought up the groundwater issue.
    So I would like to ask you and Mr. Cohon: Does recent 
evidence suggest that rapid groundwater transport affects your 
assessment of the Yucca Mountain site? Do you adhere to his 
position, the Governor's position on the groundwater issue?
    Mr. Barrett. Water is the predominant mechanism that can 
transport radioactivity from the repository site. So water is 
the central focus, and the central issue of the scientific 
suitability considerations, as well. As we go through a 
licensing process, would have to demonstrate the performance of 
the site for many thousands of years. So water is critical and 
water is key. This is where a majority of our work is focused. 
Dr. Cohon mentioned, the unsaturated zone, the interactions of 
the water with the waste package and the design of the 
repository, and also in the layers below the repository in the 
saturated zone. Water is key.
    Regarding the standard. The standards will be set under law 
by the EPA and by the NRC. We will have to scientifically 
demonstrate we meet those standards, whatever they are. And if 
we can scientifically demonstrate this in a rigorous NRC 
hearing process, then I believe the site would go forward.
    Mr. Shimkus. Could Mr. Cohon respond?
    Mr. Barton. Sure.
    Mr. Cohon. Thank you for asking. Let me add to that. Mr. 
Barrett said water is the key mechanism or the key part of the 
mountain that will affect the waste. It is also a key source of 
uncertainty. ``Uncertainty'' is a very important word when we 
are talking about Yucca Mountain and this repository and 
ultimately the decision as to whether or not it is suitable and 
whether one should go ahead.
    To elaborate a little bit on Mr. Barrett's comment with 
regard to suitability, the Board believes that how uncertainty 
is treated is a key dimension of a suitability determination. 
And the decision that will have to be made in 2001 or whenever 
the Secretary gets to that point will be whether the amount of 
remaining uncertainty about DOE's projections is acceptable; 
that is, are we confident enough that the mountain will work or 
not? And that is a key dimension of suitability.
    The work that DOE is involved in now and until it gets to 
the suitability determination is all about trying to reduce 
that range of uncertainty so we can try to learn more and more 
about groundwater, about the materials that they would use in 
the canisters so that we can narrow that range of uncertainty.
    Groundwater, the very issue you raised, Mr. Congressman, 
groundwater travel time is one of the largest sources of 
uncertainty. We just don't know. Furthermore, we will never 
know exactly how fast water will move through this mountain. 
That is just not within the realm of today's science.
    Just one additional point. You didn't say it and the 
Governor didn't in his verbal comments, but I think it is 
probably in his written remarks. The key finding made by DOE 
was with regard to an isotope called chlorine 36 which 
indicated that water had moved through the mountain more 
rapidly than people would have predicted before this finding 
was made, which is why they do the studies they do. Very 
valuable finding. That does not mean, though, that water will 
move in 50 years--that is the estimate--from the surface to the 
repository. It just means it can. And that is not a big 
surprise because we know this is a very fractured geology with 
so-called fast pathways. The real question is how much water 
will move through these fast pathways and will it seep into the 
tunnels where these canisters are located. These are questions 
we need to try to make predictions about and it is difficult.
    Mr. Barton. Before I recognize Mr. Dingell, just a couple 
of follow-ups on that. What is the average rainfall on the 
surface?
    Mr. Cohon. I will blow that estimate. Let me turn to 
somebody who really knows.
    Mr. Barrett. Under present climate conditions, 
approximately 7 inches of rain on the surface.
    Mr. Barton. Seven inches per year.
    Mr. Barrett. Per year, yes.
    Mr. Barton. And the interim storage facility if it is put 
there is going to be on the surface; isn't that correct?
    Mr. Barrett. That is correct.
    Mr. Barton. The water table that the water would eventually 
enter, how far below the surface is that?
    Mr. Barrett. Well, from the crest of the mountain, it is 
about 1,500 to 2,000 feet, depending on where you are. Where 
H.R. 45 envisions probably an interim storage site on the 
Nevada test site, the water level varies. We don't know exactly 
where we are going to place an interim storage site, but 
probably about 1,000 feet.
    Mr. Barton. About 1,000 feet in between where you would 
probably put the interim storage facility and where you think 
the water table is, the material between there is this rock 
that is fractured? It is not sandy loam? It is generally 
impervious unless there is a fracture in it. Is that correct or 
incorrect?
    Mr. Barrett. I think we are confusing two different types 
of facilities here. There is the geologic repository. That is 
the tunnels under the mountain. That is highly fractured. If 
you would put in an engineered facility, which would be a 
concrete pad with storage canisters on it that the Nuclear 
Regulatory Commission certified, that would probably be in the 
area of 25, a little bit to the east, where Yucca Mountain is. 
That would be probably on a flat, Jackass Flats in that general 
area, or Midway Valley. There the surface is on alluvium 
primarily which is just like gravel. Exactly how far down that 
alluvium is, how far down I don't know. The water level is 
fairly deep. It is probably alluvium down to some depth of 
several hundred feet. Then you may have volcanic fractured tuff 
down to the water table.
    But there are differences--for interim storage. There is 
basically complete containment through the canister system, 
which engineers could maintain indefinitely. So there should 
not be leakage. The NRC requirement would be that the 
engineered canisters for interim storage would not leak and 
there would be double containment and seals.
    Mr. Barton. That is the point I am trying to get to. We 
have got a decision to make on the permanent repository, but 
the focus of the bill before us is really to set up the 
possibility of an interim facility while you are continuing to 
assess--as you say, the Department's priority is the permanent 
facility. And if water transmission is the key issue, I am 
trying to establish the water transmission from any 
contamination from the interim facility, which is on the 
surface and in these canisters. And if I understood you just 
correctly, you said that is not a problem.
    Mr. Barrett. The discussion about appropriate long-term 
drinking water standards I do not believe is an issue with an 
interim storage facility. That is an issue for a deep geologic 
repository system.
    Mr. Barton. Madam Chairwoman did you want to?
    Ms. Jackson. Right. The requirements that we have for 
canisters to store fuel today onsite are such that 
contamination of the drinking water source is not an issue for 
the period over which those canisters are certified. Now, to be 
honest----
    Mr. Barton. Do you agree with that, Mr. EPA?
    Mr. Perciasepe. Is that the short version of Perciasepe?
    Mr. Barton. I can say EPA.
    Mr. Perciasepe. EPA is actually in there somewhere. I just 
realized that. I don't really know enough about the questioning 
that you are doing here to be--for it to be appropriate for me 
to answer that question. I would have to know more about what--
--
    Mr. Barton. We will put it in writing.
    Mr. Perciasepe. But I do understand the question and 
certainly we would be willing to respond.
    Mr. Barton. Very briefly, before I recognize Chairman 
Dingell.
    Ms. Jackson. Our canisters are certified for a 20-year 
period. That is based on an early engineering convention. We 
are actually explicitly looking at the 20- to 100-year 
timeframe in terms of the suitability or what kinds of 
requirements would need to be imposed on canisters for a 
facility like this. But that would be part of the regulatory 
requirement so that under whatever the water conditions are at 
the site, that those canisters could withstand that kind of 
environment on the surface.
    Mr. Barton. It is reasonable to expect that within a 
hundred years, within a hundred years, that some Congress and 
some Nuclear Regulatory Commission and some EPA are going to 
have a meeting of the minds on a permanent repository.
    Ms. Jackson. I would hope so, Mr. Chairman.
    Mr. Barton. The gentleman from Michigan for the remaining 5 
minutes.
    Mr. Dingell. Mr. Chairman, thank you. Let me come back to 
this question of the Tucker Act and let me, if you please, 
ladies and gentlemen, address where the thing is at this 
particular time.
    To Mr. Schiffer, the U.S. Court of Claims ruled in one case 
DOE's failure to begin accepting nuclear waste by the 31st of 
January 1998 constitutes breach of contract. Ten utilities have 
complaints with the U.S. Court of Claims alleging breach of 
contract and the fifth amendment, taking in damages totaling 
$8.5 billion. The Justice Department has not yet taken a 
position on whether any damages awarded to these cases would be 
paid for from the nuclear waste fund and is developing internal 
legal memorandum on that question; is that right?
    Mr. Schiffer. Yes, sir.
    Mr. Dingell. Okay. Assuming my understanding of that is 
correct, let me ask you a couple more questions.
    Mr. Schiffer, I assume it is possible for more utilities to 
file cases before the Court of Claims and the total damages 
claimed could significantly exceed the current estimates of 
$8.5 billion; is that correct?
    Mr. Schiffer. That is correct.
    Mr. Dingell. If that is true and you determine the damages 
could be paid from the nuclear waste fund, that could have a 
significant impact on the repository program, couldn't it?
    Mr. Schiffer. I am really not an expert on the programmatic 
impacts. There seems to be some--seems to be logic to that 
question, sir.
    Mr. Dingell. Mr. Barrett, you want to comment?
    Mr. Barrett. Yes, sir; that certainly would have long-term 
impacts on the repository program.
    Mr. Dingell. This would hit the taxpayer pretty hard? It 
would also raise questions about the completion date for the 
long-term nuclear repository; isn't that so?
    Mr. Barrett. Yes, sir.
    Mr. Dingell. The next question: Has the Department of 
Justice or the Department of Energy taken a position on whether 
the Court of Claims' ruling that we have been discussing on 
page 4 of your testimony held DOE had breached its duty to 
begin accepting waste on January 31, 1998, as controlling for 
other cases before that court?
    Mr. Schiffer. We see differences in the sets of cases. The 
rulings that we spoke of, the early rulings, the October 
rulings, dealt with cases where the reactors were shut down and 
so there were no--there was no ongoing payment of fees. Under 
those circumstances, the court found that the cases couldn't be 
remanded back to the agency to work out some sort of equitable 
contractual adjustment.
    Mr. Dingell. All of those lawsuits have a large potential 
liability to the taxpayers; isn't that right?
    Mr. Schiffer. That is correct.
    Mr. Dingell. Now, with regard to the Nuclear Waste Policy 
Act of judicial decisions and pending litigation--this, then, 
is for Mr. Barrett. Mr. Barrett, on November 30, 1998, the 
Department issued an RTQ on the Supreme Court's decision not to 
review cases on DOE's contractual duties to utilities. It 
indicated that while the Court ruling was not a surprise, ``The 
Department is concerned, however, about the potential adverse 
impact of the ruling on the program's ability to develop a 
permanent solution for the management of the Nation's 
radioactive waste.''
    Now, question, Mr. Barrett: I assume this is referring to 
the potential drain which actual damage awards might place on 
the nuclear waste fund; is that correct?
    Mr. Barrett. Correct; and the appropriations process.
    Mr. Dingell. Okay. Have you attempted to quantify the 
impact?
    Mr. Barrett. It is very uncertain until this plays out, as 
Justice stated.
    Mr. Dingell. Clearly not good.
    Mr. Barrett. It is not good.
    Mr. Dingell. What impact could this have on the repository 
program?
    Mr. Barrett. It is possible in the extreme cases that there 
would not be sufficient cash-flow for us to complete the 
scientific work that we would like to do on a repository.
    Mr. Dingell. Which means then there is a shift for the 
financing of that from the fund to the general revenues of the 
Treasury; isn't that right?
    Mr. Barrett. It becomes very complicated, but someone is 
going to have to pay.
    Mr. Dingell. Now, I know the Department does go through an 
annual audit of its operations. I assume this kind of continued 
liability is taken into account in that exercise. Is that true?
    Mr. Barrett. Yes, sir, it is.
    Mr. Dingell. This occurs, then, much like the 10(k) 
statements in private corporations' filings for the SEC; is 
that right?
    Mr. Barrett. That is correct. We have an independent audit.
    Mr. Dingell. Are the potential costs of litigation 
mentioned in your audits?
    Mr. Barrett. Yes, we have just received, working with our 
independent auditor, their input which will be part of our 
financial statement for the program, which will be part of our 
report to Congress that will be furnished to you this summer. 
We have just recently received that.
    Mr. Dingell. Can you give us any preliminary guesstimates 
as to what those numbers might be?
    Mr. Barrett. Yes, I can. What they have done is, following 
normal accounting practices, they have discussed the legal 
liability, and working with our lawyers on that, they have put 
in an estimate of $500 million which they acknowledge there are 
claims up to $45 billion or more. But that is the normal, 
customary accounting where they go at the low side.
    Mr. Dingell. Somewhere between $500 million and $45 billion 
is the liability that is calculated at this particular and 
rather uncertain time; is that right?
    Mr. Barrett. That is what the independent auditors have 
placed in the report.
    Mr. Dingell. Is there any reason to believe that it could 
not be larger?
    Mr. Barrett. There are claims. It could be larger.
    Mr. Dingell. Thank you.
    Mr. Chairman, I thank you for your courtesy.
    Mr. Barton. Thank you, Congressman Dingell.
    The Chair would recognize Congressman Hall for 5 minutes.
    Mr. Hall. Mr. Chairman, I would just like to ask the panel, 
how many on the panel oppose H.R. 45?
    Mr. Barrett. The administration opposes it. Secretary 
Richardson opposes it.
    Mr. Barton. The record shows the Department of Energy is 
opposing and the Environmental Protection Agency has raised 
their hands in opposition.
    Mr. Hall. How many support it?
    Mr. Barton. We have more hands up, but they all represent 
the Nuclear Regulatory Commission.
    Mr. Hall. Maybe this is the time to voice-vote it.
    Mr. Cohon. Congressman Hall, may we have the record show 
that the Technical Review Board abstained.
    Mr. Barton. And the Department of Justice abstained, I 
think.
    Mr. Schiffer. I heard the gentleman say correctly that the 
administration opposes it, and so I didn't see the need to.
    Mr. Barton. I would assume, even within the Clinton 
administration, there can be disagreement among agencies. I may 
be wrong on that.
    Mr. Hall. Not safely.
    Mr. Barton. Not safely.
    Mr. Hall. For those who oppose it, I think I would ask you 
to give us what it would take to make it more palatable to you, 
because I hear a chairman here crying out for bipartisan 
support and to pass a bill that we don't have to go through the 
rigmarole of trying to override.
    We do need a bill. And, Mr. Chairman, I would like 
unanimous consent to place a further statement in the record 
just after Mr. Markey's testimony. I had waited for him to come 
back. I wanted him to be here when I said what I said.
    Mr. Barton. You are going to put a written statement in the 
record?
    Mr. Hall. No, I want to put an oral statement in the 
record. Just what I say, I want it to go in the record there.
    Mr. Barton. You are going to say it, but you want it placed 
in the record right after----
    Mr. Hall. Right after Congressman Markey, yes.
    Mr. Barton. I have never had that kind of a request.
    Mr. Hall. We have erased tapes. Been doing that at the 
White House.
    Mr. Barton. The Chair is going to temporarily rule without 
objection, but we want to let our counsel check with the 
Parliamentarians and make sure that that is within the 
precedents. But if it doesn't violate a precedent of the 
committee, we will certainly do that.
    Mr. Hall. I just want to point out that Mr. Markey is very 
intelligent, very capable. He certainly expresses himself. He 
is entertaining. I am very fond of him. He is a friend of mine. 
We just don't vote alike, hardly ever.
    But, in case my granddaughter should read this record in 
20, 25 years, I want for them to know that there are two sides 
to the nuclear thrust and that there are those of us, like me, 
who would probably give every county commissioner a nuclear 
plant in their precinct if they really asked for it and we 
could afford it, and there are those like Mr. Markey--I 
understand, believe and respect him for his position--that are 
opposed to nuclear energy in any shape, form or fashion.
    I would point out that energy is the cause of war or lack 
of energy is the cause of war. No question that the Japanese 
went south into Malaysia for energy when we forced them into 
World War II. No question that Hitler went into the Ploesti oil 
fields to get benzene for his tanks and his airplanes.
    If we don't solve the energy problem, then we have nothing 
to expect. We sent 500,000 kids over to a desert, not really to 
support the people from Kuwait, but to keep a despot from 
getting control of all the energy, half the energy in the 
world.
    I would just like for the record to reflect that there is a 
difference of opinion, although we have one more articulate 
than others on the committee, that there are those of us who 
believe that nuclear energy as an alternate source is an 
absolute necessity.
    I say that because 10 or 15 years ago--and there are those 
here who remember--Mr. Markey had an amendment that would have 
killed the nuclear thrust in this country. There wouldn't have 
been another nuclear plant if his motion had passed. I 
respected him for it. He handled it well. He almost passed it. 
It failed because the vote was a tie. That is how close we came 
to losing the nuclear thrust.
    I just wanted that in the record, Mr. Chairman, for future 
generations to read when they read this, and others to read it, 
to know that there are some of us that are as unreasonable 
maybe on one side as we think the others are on the other side.
    But I guess--and I would like to see the fact that you all 
are divided in this thrust, but please give us not what is 
wrong with it, but how we can correct it. And I think we can 
get a bill through and might get a bill through that the 
President would sign.
    And we certainly want our friend Bill Richardson to come 
over here, and if he has the pretty sole authority, or as the 
President indicated, we surely want to talk to him and visit 
with him.
    Yes, Ms. Jackson.
    Ms. Jackson. The Nuclear Regulatory Commission does support 
the bill, and we have gone on record to say that. There are 
some changes that we would like to see incorporated into the 
bill, and that is part of our written submission to this 
committee.
    Mr. Hall. That is good, and we have that, and that will be 
in the record.
    I yield back my time, Mr. Chairman. Thank you.
    Mr. Barton. The gentleman's statement will definitely be in 
the record, and we will check with the counsel for both sides 
and the Parliamentarian, and as I indicated in my ruling, if it 
can be placed in the record immediately after the distinguished 
gentleman from Massachusetts, it will be.
    But it will certainly be in the record, and if possible, it 
will be in at the place requested by the gentleman from Texas.
    Mr. Hall. You can put it in both places if you want to, Mr. 
Chairman.
    Mr. Barton. That is another plan.
    The gentleman from Illinois is recognized for what we hope 
will be the last 5 minutes of questions for this panel.
    Mr. Shimkus. Thank you, Mr. Chairman. Again, I just want to 
reiterate the viability versus the suitability and using the 
terminology, the right terminology at the right time. At the 
end of our last round of discussions, we were interchanging 
those words again. That just confuses a poor old country boy 
like Mr. Hall or myself.
    I am going to continue to scrutinize the document on the 
viability, and I think that is something that we should 
continue to pursue; and there is some information on the 
groundwater question that I asked before that I think directs 
what the DOE has said, the groundwater considerations make this 
a viable option. It is on page 20, in essence, as I read those 
statements.
    A question for Mr. Barrett; again, this could have been 
asked earlier. The schedule in the assessment shows DOE will be 
ready to make a site recommendation to the President in the 
year 2001. Is it your understanding that Secretary Richardson 
supports this schedule and intends to meet it?
    Mr. Barrett. Yes, sir.
    Mr. Shimkus. And then for yourself and Mr. Cohon, this will 
be my final question. In our next panel we will have Ms. 
Claybrook. She, in her written testimony, declares that this 
viability assessment provides conclusive evidence that Yucca 
Mountain should be disqualified. Do you agree that that is a 
true statement?
    Mr. Barrett. I do not agree. The Secretary did not agree.
    Mr. Shimkus. Mr. Cohon?
    Mr. Cohon. The Nuclear Waste Technical Review Board does 
not agree with that. We believe that Yucca Mountain merits 
further study as the site for a potential permanent repository 
for high-level nuclear waste.
    Mr. Shimkus. We will give Ms. Claybrook a chance to defend 
herself in the next panel.
    Thank you, Mr. Chairman, very much.
    Mr. Barton. Thank you, Congressman Shimkus.
    There will be written questions for each of you, or at 
least the agency's representative, to reply to; and as I 
indicated to the gentleman from the EPA, we would like your 
answers to be expeditiously returned because there is a very 
high probability that we are going to hold a markup on an 
amended version of H.R. 45 within the very near future.
    Thank you for your attendance and you are excused.
    As soon as the previous panel exits the room, we are going 
to hear from our third panel. We have today the Honorable LeRoy 
Koppendrayer, who is Commissioner of the Minnesota Public 
Utilities Commission. He is representing the Nuclear Waste 
Strategy Coalition.
    We have the Honorable John Strand, who is Chairman of the 
Michigan Public Service Commission. He is representing the 
National Association of Regulatory Utility Commissioners.
    We have Mr. David Joos, who is the President and CEO of 
Consumers Energy in Jackson, Michigan, and he is representing 
the Nuclear Energy Institute.
    We have Mr. Richard Abdoo, who is Chairman and CEO of 
Wisconsin Electric Power, representing Wisconsin Electric 
Power.
    And we have Ms. Joan Claybrook, who is the President of 
Public Citizen, and she is obviously here representing that 
distinguished public advocacy group.
    We are going to start with you, Mr. Koppendrayer. Your 
entire statement is in the record, and we would ask that you 
summarize it in 5 minutes.

STATEMENTS OF HON. LEROY KOPPENDRAYER, COMMISSIONER, MINNESOTA 
  PUBLIC UTILITIES COMMISSION, ON BEHALF OF THE NUCLEAR WASTE 
  STRATEGY COALITION; HON. JOHN G. STRAND, CHAIRMAN, MICHIGAN 
     PUBLIC SERVICE COMMISSION, ON BEHALF OF THE NATIONAL 
ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS; DAVID W. JOOS, 
 PRESIDENT AND CEO, CONSUMERS ENERGY, ON BEHALF OF THE NUCLEAR 
ENERGY INSTITUTE; RICHARD A. ABDOO, CHAIRMAN AND CEO, WISCONSIN 
 ELECTRIC POWER COMPANY; AND JOAN CLAYBROOK, PRESIDENT, PUBLIC 
                            CITIZEN

    Mr. Koppendrayer. Thank you.
    Mr. Barton. Put the microphone close to you, so that the 
recording clerk can hear.
    Mr. Koppendrayer. Thank you, Chairman Barton and members of 
the committee. I can honestly say after serving four terms in 
the State legislature that I really appreciate your sitting 
through testimony. I know it is like----
    Mr. Barton. We love it. We just eat this up.
    Mr. Koppendrayer. You always love this. The Nuclear Waste 
Strategy Coalition is an ad hoc group of State regulators, 
State attorneys general and utilities representing 41 members 
in 23 States. The coalition seeks the safe, effective and 
timely central storage and disposal of civilian waste from 
nuclear power plants.
    The Nuclear Waste Policy Act of 1999, H.R. 45, before you 
will provide a much-needed comprehensive reform of America's 
civilian high-level radioactive waste disposal program. The 
Department of Energy defaulted over 1 year ago, as we have 
heard discussed in the earlier part of the day, on its 
contracts to begin removing nuclear waste from the power 
plants. Tons of high-level waste are now stranded at 73 sites 
in 34 States by the Department of Energy's failure to begin 
removing it last winter, as it promised in statute and 
contract.
    Americans already have paid the money that we have been 
discussing, the $15 billion, into the Federal fund for nuclear 
waste disposal services. We are not getting that service. We 
continue to pay at a rate of $70,000 an hour, that is, the 
electric bill's portion, that is going into this fund.
    Because DOE missed its performance deadline, there is 
threatened, also as discussed, a $40 billion cost. These are 
costs of further delay. As Mr. Barrett pointed out, the U.S. 
Court of Claims has found the Federal Government liable for 
these costs. That same court explicitly, we understand, 
prohibited diverting the money from the nuclear waste fund to 
pay for these costs. With each passing day, the cost of delay 
mounts and continued delay will drain the U.S. Treasury of tens 
of billions of dollars. So let's confront some of the excuses 
for not moving the waste. The Federal Government's obligation, 
the ability and the authority to move and store and dispose of 
the waste has frequently been misrepresented.
    In addition, the delaying of central storage and disposal 
in Nevada has wrongly been portrayed as stopping the storage of 
nuclear waste when, instead, it launches a massive, expensive 
building program to store the waste, not in one site but in 73 
sites in 34 States.
    To date, the Department of Energy's civilian nuclear waste 
program has produced only progress reports, and progress 
reports, including viability reports, do not--the American 
people do not want to pay any longer for just reports. We have 
paid to have high-level radioactive waste removed from the 
power plants beginning January 31, 1998. DOE is not fulfilling 
its obligation when it misses these deadlines. Progress reports 
do not substitute for actual performance.
    The Federal court decision and records have consistently 
found that DOE is obligated, able and authorized to begin 
removing the spent nuclear fuel from power plants for storage 
and disposal. Ongoing shipment and storage of spent nuclear 
fuel from 41 foreign countries, the Navy, and research reactors 
have demonstrated DOE's existing capability to transport and 
centrally store nuclear waste. DOE has also stated for the 
record that it is physically able to transport and store spent 
nuclear fuel and other high-level waste.
    During the past 35 years, the Federal Government has 
averaged 68 noncommercial spent fuel shipments per year. 
Through the year 2010, the Federal Government has committed to 
another 3,000-plus of these noncommercial shipments. The 
technology, the facilities, the managerial expertise and the 
experience are already in place and being used to transport 
safely.
    The Nuclear Waste Technical Review Board, as we heard from 
earlier, has also acknowledged that it is equally safe to 
centrally store nuclear waste and to transport waste to that 
site. It is to store nuclear waste at the plant sites. I will 
try and summarize, if that is my bell.
    Mr. Barton. That is your bell.
    Mr. Koppendrayer. In summary, we just have six points that 
we want to emphasize on behalf of ratepayers. That is, No. 1, 
begin waste removal; release the ratepayers' money for the 
intended purpose and no other purpose; provide a central 
temporary storage facility; and, four, continue a permanent 
disposal program; facilitate the transportation of that waste; 
and cap the nuclear waste fund fee at one-tenth of one cent per 
kilowatt hour.
    Thank you, Mr. Chair, and I stand for questions.
    [The prepared statement of LeRoy Koppendrayer follows:]
   Prepared Statement of LeRoy Koppendrayer, Commissioner, Minnesota 
  Public Utilities Commission on Behalf of the Nuclear Waste Strategy 
                               Coalition
                              introduction
    Chairman Barton, members of the Subcommittee, I appreciate this 
opportunity to present testimony on behalf of the Nuclear Waste 
Strategy Coalition (NWSC). The Nuclear Waste Strategy Coalition is an 
ad hoc group of State utility regulators, State attorneys general, and 
utilities representing 41 member organizations in 24 states. The 
Coalition seeks safe, cost-effective, and timely central storage and 
disposal of civilian high-level waste from nuclear power plants. The 
Nuclear Waste Policy Act of 1999 (H.R. 45) before you will provide much 
needed, comprehensive reform of America's civilian, high-level 
radioactive waste disposal program.
    The Department of Energy (DOE) defaulted over one year ago on its 
contracts to begin removing nuclear waste from power plants. Americans 
have already paid over $15 billion for nuclear waste disposal services 
we are not getting. We continue to pay at a rate of $70,000 every hour. 
Tons of high-level radioactive waste are now stranded at 73 sites in 34 
states by the Department of Energy's failure to begin removing it last 
winter as promised in statute and contract. Because of this missed 
deadline an additional $40 billion to $80 billion in costs are 
threatened. Clearly, it is time to act.
    Missed deadlines and further delay are unconscionable. Americans 
expect the federal government to take actions that best protects us and 
avoids squandering tens of billions of dollars of our money. After 
sixteen years and a deadline that DOE promises to miss by at least 12 
years, the time to fix this program is way past due.
                          confronting excuses
    The federal government's obligation, ability, and authority to 
provide transportation and central storage and disposal of civilian 
high-level radioactive waste has frequently been misrepresented. In 
addition, the delaying of central storage and disposal in Nevada has 
wrongly been portrayed as stopping the storage of nuclear waste, when 
instead it launches a massive, and vastly expensive building program to 
store nuclear waste not at one site, but at 73 sites in 34 states. I 
urge subcommittee members to remember that the goal is to physically 
move, store and dispose of this radioactive waste in the best way we 
are now able and not be distracted by those seeking endless delay.
The U.S. Department of Energy
    To date, the Department of Energy's civilian nuclear waste program 
has produced only progress reports. Progress reports, including the 
Viability Report, are not what Americans have paid for. We have paid to 
have high-level radioactive waste removed from power plants beginning 
by January 31, 1998. We have paid for the safe, centralized temporary 
storage and permanent disposal of nuclear waste from power plants. DOE 
is not fulfilling this obligation when it misses deadlines. Progress 
reports do not substitute for actual performance.
    In its 1996 Indiana Michigan decision, the U.S. Court of Appeals 
affirmed that DOE was obligated to start moving waste on January 31, 
1998, ``without qualification or condition.'' DOE ignored the Court 
prompting 46 state agencies and 36 utilities to again seek relief from 
the Court. In 1997, the Court observed:
        ``After issuing our decision in Indiana Michigan, we would have 
        expected that the Department would proceed as if it had just 
        been told that it had an unconditional obligation to take 
        nuclear materials by the January 31, 1998, deadline. Not so. 
        Quite to the contrary . . .''
    As a result, the Court issued a writ of mandamus to the DOE on 
November 14, 1997. In that order, the Court explicitly found DOE 
authorized to begin providing temporary central storage of spent 
nuclear fuel from civilian power plants.
        ``Given DOE's repeated attempts to excuse its delay . . . we . 
        . . issue a writ of mandamus to correct the Department's 
        misapprehension of our prior ruling. . . . [S]pecifically we 
        preclude DOE from concluding that its delay is unavoidable on 
        the ground that it has not yet prepared a permanent repository 
        or that it has no authority to provide storage in the 
        interim.'' [Emphasis added.]

        United States Court of Appeals decision in Northern States 
        Power Company, et al., No. 97-1064 consolidated with Nos. 97-
        1065, 97-1370, and 97-1398.
    In late 1998 decisions, the D.C. Circuit of the U.S. Court of 
Claims again affirmed DOE's obligation. The Court of Claims then 
extended earlier decisions by the Court of Appeals to recognize federal 
government liability for costs mounting as a result of DOE's missed 
deadline to remove waste for central storage and disposal. In testimony 
presented before the 104th and 105th Congresses these costs have been 
estimated to be at least $40 billion to $80 billion. These are the 
costs of delay.
    The cost of delay is separate, and in addition to, the cost of 
providing central storage and disposal of civilian high-level 
radioactive waste. Electric ratepayers pay one tenth of a cent per 
kilowatt hour of nuclear electricity into the Nuclear Waste Fund for 
central storage and disposal of nuclear waste. Ratepayer payments into 
the Nuclear Waste Fund are to pay for the work of disposal. In 
contrast, damages awarded by the U.S. Court of Claims are for the costs 
of delaying that very work. These costs are rightfully paid from the 
U.S. Treasury's Judgments Fund, and not from the Nuclear Waste Fund.
    Using money from the Nuclear Waste Fund to pay damages resulting 
from DOE's missed deadline to perform would divert these funds from 
their intended purpose, violating the original statute under which they 
were collected. Since ratepayers would be assessed the costs of Nuclear 
Waste Fund expenses, using the fund to pay damages would amount to 
ratepayers paying themselves damages.
    Beyond DOE's obligation to perform, DOE has also stated for the 
record that it is physically able to transport and store spent nuclear 
fuel and other high-level radioactive waste. During the past 35 years, 
the federal government has averaged 68 non-commercial spent fuel 
shipments per year. Through the year 2010, the federal government has 
committed to make 3,819 shipments (382 per year) of such non-commercial 
high-level nuclear waste. The technology, facilities, managerial 
expertise, and experience are already in place and being used to do so 
safely. DOE has publicly affirmed this on numerous occasions including 
in the Court record.
          The Court: [Y]our brief, . . . on page 6 . . . seems to imply 
        that it would be possible to establish an interim storage 
        program . . .
          Mr. Bryson [Representing DOE]: Well, we don't think we have 
        the statutory authority to do that. I mean physically----
          The Court: Forgetting a moment the statutory authority, it's 
        physically possible, isn't it?
          Mr. Bryson [Representing DOE]: It certainly is, Your Honor, . 
        . .

        See Transcript of Proceedings in the United States Court of 
        Appeals for the District of Columbia Circuit, Northern States 
        Power Company, et al. v. Department of Energy and the United 
        States of America, No. 97-1064, page 29, lines 4 to 19, 
        Washington, D.C., September 25, 1997.
    Ongoing shipment, and storage, of spent nuclear fuel from 41 
foreign countries, the Navy, and research reactors demonstrate DOE's 
existing capability to transport, and centrally store U.S. civilian 
waste.
    DOE is also legally authorized to act. DOE earlier successfully 
argued in the 10th Circuit of the U.S. Court of Appeals that it is 
authorized to transport and store civilian waste from power plants. 
When asked by the D.C. Circuit of the U.S. Court of Appeals if it 
wanted to surrender its authority recognized by the 10th Circuit Court 
of Appeals, DOE declined.
    DOE is obligated, able, and authorized to provide the nuclear waste 
storage and disposal services the American people have paid for. It is 
intolerable that in missing its deadline DOE claims that at best it 
will perform 12 years late; and then only if everything goes perfectly. 
We believe that H.R. 45 is the best prospect to remedy this vexing 
problem.
The U.S. Nuclear Waste Technical Review Board
    The Nuclear Waste Technical Review Board (NWTRB) was established to 
provide engineering and scientific input and oversight to the federal 
nuclear waste program. Although seldom stated, the NWTRB has 
acknowledged it is equally safe to centrally store nuclear waste, and 
to transport waste to that site, as it is to store nuclear waste at 
plant sites. A DOE-sponsored national assembly of State emergency 
management officials agreed noting that non-commercial high-level 
nuclear waste is moving safely and being centrally stored, and we 
should do the same for commercial waste.
    Responsible stewardship of public money dictates that given two 
safe options, we should take the one that avoids squandering tens of 
billions of dollars. There is every scientific and economic basis to 
proceed with nuclear waste transportation, central storage and 
disposal. The NWTRB's research presents no evidence favoring leaving 
waste stranded at power plants.
Environmental Protection Administration (EPA).
    We challenge EPA to tell us, if not the Nevada atomic test site, 
where? The alternative cannot be ``nowhere'' because nuclear waste 
already exists. It has to be somewhere. The alternative to centralized 
temporary storage is not the absence of temporary storage. Rather it is 
stranding high-level radioactive at 73 power plants in 34 states--every 
one on a major body of water and near population centers.
    Does EPA really want to compare every power plant site in America 
to the Nevada Test Site regarding its environmental desirability for 
long term nuclear waste storage? Does EPA really think that 
environmental protection means indefinitely stranding nuclear waste in 
34 states on the shores of our lakes, rivers, and oceans? Is this the 
best we can do as a nation?
    Americans are right to expect the federal government to move waste 
to a central location because that best protects public health, safety, 
and the environment and saves tens of billions of dollars. High-level 
nuclear waste is best stored, and disposed of, in a place that is 
remote, arid, and was once used to explode atomic bombs--a place like 
the Nevada atomic test site. Even if something completely unexpected 
precludes using that site for permanent disposal, it remains the best 
site for long-term storage and best protects the environment while a 
permanent disposal facility is completed.
                      its time to get the job done
    Let me now turn to the 6 points the Nuclear Waste Strategy 
Coalition believes are critical to reforming the U.S. civilian 
radioactive waste program. To overcome past problems of the program's 
lack of public confidence, cost escalation, schedule lapses, and the 
risk of diverting ratepayer money from the Nuclear Waste Fund, 1999 
legislation reforming the Nuclear Waste Policy Act must:

1. Begin waste removal--The federal government is unconditionally 
        obligated to begin removing radioactive waste from the 73 
        temporary storage sites now at nuclear electric power plants in 
        34 states. It is not sufficient to simply take title or 
        possession of the waste. The federal government must begin to 
        remove waste from power plants across the nation and provide 
        centralized temporary storage while the permanent disposal 
        facility is being completed.
2. Release ratepayer's money for intended purpose--The American public 
        is right to expect that the ratepayer-funded Nuclear Waste Fund 
        will be used to address nuclear waste and that Congress will 
        appropriate the necessary money from the fund to do so. In the 
        next year alone, electric ratepayers will pay over $600 million 
        into the Nuclear Waste Fund. The United States government 
        promised to use these funds to begin removing high-level 
        radioactive waste and to provide for its permanent disposal.
      Over $15 billion, including interest, has been paid into the 
        Nuclear Waste Fund and nearly $8 billion remain held in trust 
        by the federal government. Recognizing the complications of the 
        federal budget scoring process, it is simply unimaginable to 
        many that the 106th Congress would take ratepayer's money in 
        the Nuclear Waste Fund for other purposes. This money was 
        collected to provide safe, timely, and cost-effective storage 
        and permanent disposal of civilian high-level radioactive 
        waste. The American people are right to expect it will be 
        released for this purpose, not kept to provide accounting 
        camouflage for other federal spending. Use of the Nuclear Waste 
        Fund for other purposes would be an unjust and fraudulent tax 
        on the American electricity consumer.
3. Provide a central temporary storage facility--A temporary, 
        centralized radioactive waste facility must be authorized, 
        sited in Nevada, and funded to provide the United States with 
        timely, safe, and cost-effective interim storage of radioactive 
        waste. Congress must establish an aggressive waste acceptance 
        schedule for storing waste in the interim facility. This 
        facility must augment and facilitate our nation's permanent 
        radioactive waste disposal program, not replace it.
4. Continue a permanent disposal program--Characterization of the Yucca 
        Mountain, Nevada site must continue. State governments, 
        utilities, and the public have acted in reliance on the federal 
        government's promise that waste would be removed from power 
        plant sites beginning in 1998 and permanent disposal provided. 
        To ensure that deep geologic disposal remains an essential 
        program element, within budget constraints, the program must be 
        redesigned to improve management structure, reflect program 
        priorities and provide incentives for efficiency.
5. Facilitate transportation--Authorize the designation, construction 
        and operation of facilities to transport civilian high-level 
        radioactive waste to a central temporary storage site and to a 
        permanent disposal facility. Provide necessary transportation 
        corridors and rights-of-way to ensure access to the designated 
        temporary storage facility and the permanent disposal facility.
6. Cap the Nuclear Waste Fund fee--Cap the Nuclear Waste Fund payments 
        at the present one-tenth of a cent per kilowatt-hour to ensure 
        that the program costs resulting from past performance problems 
        of the federal government are not shifted to electricity 
        consumers.
    These six elements are needed in final legislation reforming the 
Nuclear Waste Policy Act to protect continuing consumer investment in 
the Nuclear Waste Fund that already exceeds $15 billion, and to ensure 
that the federal government fulfills its obligations for the interim 
storage and permanent disposal of civilian high-level radioactive 
waste. Civilian high-level radioactive waste now stored at 73 power 
plants in 34 states must be addressed. We believe legislation in 1999 
is necessary and the time to enact it is now.
                               conclusion
    The Nuclear Waste Strategy Coalition cannot emphasize enough the 
need to enact H.R. 45. We must transport, and centrally store and 
dispose of civilian high-level radioactive waste. It is extremely 
important that we not be distracted or delayed by the those who would 
substitute ever lasting dialogue and ``process'' for actually doing the 
work that American's have not only paid for--but trusted would be done.
    The 106th Congress faces an ever more compelling call to action. 
The first anniversary of DOE's missed deadline has come and gone. The 
federal courts three times affirmed DOE's unequivocal obligation to 
have started removing nuclear waste from power plants by January 31, 
1998. The U.S. Supreme Court chose not to even consider DOE's request 
for absolution from its obligations. Now, the U.S. Court of Claims has 
determined federal liability for continuing delay and is determining 
the amount of damages that will be paid from the U.S. Treasury.
    I recognize that there are powerful special interests fighting to 
preserve the status quo--to do nothing. Some of these special interests 
suggest that we are asking you to rush to judgment. If the 16 years in 
which we have wrestled with this dilemma is not enough time to see this 
program needs fixing, no amount of time will be enough.
    Given the present status of America's civilian high-level 
radioactive waste program, comprehensive reform legislation such as 
H.R. 45 is our best hope. DOE's nuclear waste program, while making 
minor progress at great cost, is not meeting the needs of the nation. 
Decisive action is needed now. Congress must not miss this opportunity 
to enact H.R. 45.

    Mr. Barton. Thank you, sir.
    We will now hear from the Honorable John Strand. Again, 
your statement is in the record in its entirety. We ask you to 
summarize it in 5 minutes.

                STATEMENT OF HON. JOHN G. STRAND

    Mr. Strand. Thank you very much, Chairman Barton and 
members of the Energy and Power Subcommittee. In particular, I 
would also like to thank Michigan's representative, Fred Upton, 
for his continuing leadership on this very important consumer 
issue. The National Association of Regulatory Utility 
Commissioners, NARUC, is a quasi-governmental, nonprofit 
organization of the governmental agencies engaged in the 
regulation of public utilities in all 50 States and the 
District of Columbia. More specifically, NARUC contains the 
State officials charged with the duty of regulating the retail 
rates and services of electric and gas utilities operating 
within their respective jurisdictions.
    These officials have the obligation under State law to 
assure the establishment and maintenance of such energy utility 
services as may be required by the public convenience and 
necessity, and to ensure that such services are provided at 
rates and conditions which are just, reasonable and 
nondiscriminatory for all consumers. Essentially, we represent 
ratepayers.
    I will suggest to you that we have had substantial problems 
with the Federal nuclear waste program. Basically, that program 
has been a source of deep concern and enormous frustration to 
our Nation's utility ratepayers and regulators for many years.
    We were checking the record before I testified here, and I 
found that as far back as 1986, a predecessor of mine at the 
MPSC testified on behalf of NARUC that we were at that time 
losing confidence in DOE's ability to manage the program. We 
called for a number of program reforms that, of course, have 
never materialized.
    Consumers of electricity have two primary concerns. First, 
huge amounts of money have been collected from utility 
ratepayers to pay for the waste program--approximately $600 
million a year, more than $15 billion since 1983, including 
interest, yet no waste has been moved from civilian reactor 
sites.
    Second, the effective management and permanent disposal of 
nuclear waste are essential to minimize the life cycle cost of 
the existing nuclear plants that generate approximately 20 
percent of the electricity used in the U.S. As delays continue, 
these costs grow in scope and in magnitude, in some cases 
denying consumers low-cost nuclear resources.
    I will tell you, this doesn't make economic sense, 
particularly at a time when we as a nation are trying to move 
the electric utility industry into a competitive, market-based 
era. The need for congressional action to provide comprehensive 
reform and guidance is absolutely essential and is overdue.
    I will give you one unfortunately not too funny anecdote 
that a number of States have suggested, only half jokingly, 
because we have noticed that the DOE has been accepting, moving 
and storing nuclear waste from 41 foreign countries that maybe 
the answer for the States is to secede from the union and file 
to have DOE accept and remove our waste as a foreign country.
    We are not necessarily advocating that, but we do think it 
cries out for the fact that Federal action is needed.
    I want to comment first of all on the viability assessment, 
a slight comment on basically what has happened as far as the 
court decisions and then conclude.
    The viability assessment, in our opinion, is just another 
string of DOE progress reports. We are glad at least that the 
dates haven't been pushed back, but in reality we don't need 
more progress reports; we need the waste moved. This is what 
the American people have paid for. We certainly hope that after 
15 years of extensive research, we have the ability to at least 
get some waste moved.
    Second, as far as the recent Federal court decisions, we 
believe the implication of the court decisions makes basically 
our options quite clear. It is now up to Congress to fix this 
program. In the litigation swirling around this program, we 
have reached a judicial deadlock because of the fact that the 
cases brought by the States and utilities against the DOE in 
the U.S. Court of Appeals basically found that the DOE is 
legally obligated to begin taking the waste, but the act 
doesn't specifically require performance by the DOE. This is a 
deadlock, and we believe one that can only be corrected by 
congressional action.
    I will suggest to you unfortunately that further court 
actions will be expensive, slow and reach incomplete 
conclusions just as the most recent U.S. Court of Appeals cases 
have demonstrated.
    Let me conclude. As my comments on behalf of NARUC 
indicate, the need for the expeditious passage of H.R. 45 is 
imperative. Today we are still without the fundamental policy 
framework necessary to ensure that the Federal Government 
accepts and disposes of nuclear waste in a timely and efficient 
manner.
    Let me give one warning. I will tell you that even if H.R. 
45 is passed, I will suggest in and of itself that may not be 
enough to achieve the goals of the Nation's nuclear waste 
management and disposal program. After all, if you read the 
1982 NWPA, it is perfectly clear as to the intent and 
requirements on the DOE. Passage into law of H.R. 45 will give 
the program the tools it needs to complete the job, but the 
program still must be administered; and I will suggest to you 
that substantial congressional oversight will absolutely be 
necessary.
    In conclusion, NARUC commends the sponsors of H.R. 45 and 
supports the bill. The Nation's electricity consumers deserve 
to see real progress in waste disposal. We must not again fail 
them.
    Thank you very much for the opportunity to address the 
subcommittee.
    [The prepared statement of John G. Strand follows:]
 Prepared Statement of John Strand, Chairman, Michigan Public Service 
                               Commission
    Mr. Chairman and Members of the Committee: Good Morning. I am John 
Strand, Chairman of the Michigan Public Service Commission and Chairman 
of the Subcommittee on Nuclear Issues--Waste Disposal of the National 
Association of Regulatory Utility Commissioners, commonly known as 
NARUC. I am here today to testify on behalf of NARUC. I am grateful for 
the opportunity to provide NARUC's views on H.R. 45, the Nuclear Waste 
Policy Act of 1999, and on the specific issues raised by the Committee 
in its letter of invitation, including our views on the United States 
Department of Energy's (DOE) December 1998 viability assessment, the 
DOE's site characterization efforts at Yucca Mountain, and the 
implications of recent Federal court decisions on the DOE's obligations 
under the Nuclear Waste Policy Act of 1982.
    NARUC is a quasi-governmental nonprofit organization founded in 
1889. Within its membership are the governmental bodies of the fifty 
States engaged in the economic and safety regulation of carriers and 
utilities. The mission of NARUC is to serve the public interest by 
seeking to improve the quality and effectiveness of public regulation 
in America. More specifically, NARUC contains the State officials 
charged with the duty of regulating the retail rates and services of 
electric and gas utilities operating within their respective 
jurisdictions. These officials have the obligation under State law to 
assure the establishment and maintenance of such energy utility 
services as may be required by the public convenience and necessity, 
and to ensure that such services are provided at rates and conditions 
which are just, reasonable, and nondiscriminatory for all consumers.
    With respect to the Federal Nuclear Waste program, no other 
organization representing the public interest has been involved with a 
fair resolution of this critical issue longer than NARUC. In 1983, 
shortly after the passage of the 1982 Act, NARUC established policies 
and procedures on the high-level nuclear waste program with the goal of 
protecting the interests of our Nation's consumers. Sixteen years 
later, we are still at it.
The Consumer Interest and Concern in the Nation's Nuclear Waste Program
    Let me begin by outlining the interests and concerns of the 
consumers of electricity and the membership of NARUC regarding the 
DOE's Civilian Radioactive Waste Management program. This program has 
been a source of deep concern and enormous frustration to our nation's 
utility ratepayers and regulators for many years for two primary 
reasons. Our first concern is the huge amounts of money that have been 
collected from utility ratepayers to pay for the waste program despite 
the fact that no waste has yet been moved from civilian reactor sites. 
Nationally, utility ratepayers pay approximately $600 million per year 
into the Nuclear Waste Fund, only a small portion of which, 
approximately fifteen cents on the dollar, is actually appropriated for 
the program. This Fund, which is supported solely by the Nation's 
electricity consumers, has accumulated more than $15 billion since 
1983. State regulators have a compelling interest in the cost-
effectiveness and success of the program because of our fiduciary 
responsibilities to the utility ratepayers. Let me put it another way--
utility ratepayers have paid for the storage of nuclear waste at 
nuclear power plants through the rates paid to cover the capital costs 
of planned on-site storage. Ratepayers have also paid for the Federal 
nuclear waste management and disposal program run by the DOE through 
the 1 mil per kilowatt hour fee they pay to their electric utilities on 
the generation of electricity from nuclear generation stations. These 
are the fees that go directly from the utilities into the Nuclear Waste 
Fund to the tune of $15 billion. Now utility ratepayers are being asked 
to pay a third time--for expanded on-site storage as a result of the 
DOE's failure to meet the deadlines prescribed in the Nuclear Waste 
Policy Act.
    The second reason for our concern also relates to consumer costs. 
The effective management and permanent disposal of nuclear waste are 
essential to minimize the life cycle costs of the existing nuclear 
plants that generate about 20 percent of the electricity used in the 
United States. Cost increases for expanding on-site storage, reactor 
decommissioning and centralized disposal of nuclear wastes increases 
the costs of nuclear energy overall, which in turn, can have a 
significant adverse affect on energy costs to consumers. This problem 
is becoming particularly acute as the nation heads into an era of 
competitive markets in the electric utility industry. Moreover, nuclear 
generation provides significant air emission benefits that will be 
jeopardized if the unresolved waste problem renders these plants 
uneconomic.
    Since 1984, the NARUC has passed twenty-four policy resolutions on 
the nuclear waste program, including eleven that specifically encourage 
legislative revisions to the program. Today, we are still without the 
fundamental policy framework necessary to ensure that the Federal 
Government accepts and disposes of nuclear wastes in a timely and 
efficient manner. The NARUC commends the sponsors of H.R. 45 for 
undertaking the task of developing a workable legislative solution, and 
we welcome the efforts of this Committee to address the concerns of the 
millions of U.S. ratepayers that financially support this program.
NARUC's Review of the Department of Energy's Viability Assessment
    The DOE has been studying a site at Yucca Mountain, Nevada, for 
more than 15 years to determine whether it is a suitable place to build 
a geologic repository for the nation's high-level radioactive waste. 
The viability assessment, released in December 1998 presents the 
results of DOE's study to date. While the assessment is generally 
framed by the DOE as a technical document, it nonetheless concludes 
``that Yucca mountain remains a promising site for a geologic 
repository and that work should proceed to support a decision in 2001 
on whether to recommend the site to the President for development as a 
repository.'' In its concluding observations, the DOE indicates that 
its 15 years of extensive research has validated the expectations of 
the scientists that first suggested that remote desert regions of the 
Southwest would be well-suited for a geologic repository. The 
assessment further suggests that engineered barriers and natural 
barriers can be expected to reduce radiation exposures to future 
populations, even after as much as 300,000 years, to natural background 
levels that exist today.
    Our review of the assessment leads us to conclude that the 
provisions in Section 204 of H.R. 45, which authorize and direct the 
Secretary of Energy to ``design, construct, and operate a facility for 
the interim storage of spent nuclear fuel and high-level radioactive 
waste at the interim storage facility site'' are necessary and 
appropriate. In our ``Resolution Regarding Guiding Principles for 
Legislative Changes to the Nuclear Waste Policy Act,'' (attached 
hereto) NARUC called for the DOE to begin to take possession and remove 
high-level radioactive waste and spent nuclear fuel to meet its (now 
passed) January 31, 1998 deadline for complying with its legal 
obligation as soon as possible. The resolution further urged the U.S. 
Congress to designate the location of one above-ground, centralized, 
interim storage facility for spent nuclear fuel and that such site not 
be limited by the location or licensing of a permanent repository.
    In sum, the viability assessment leads us to believe it is time to 
get on with siting, designing, and constructing an interim storage 
facility as soon as possible.
DOE's Characterization of the Yucca Mountain Site
    The DOE's characterization of the Yucca Mountain site has been 
marked by delay. While we are encouraged by the recent progress made by 
the DOE in its Yucca Mountain site characterization efforts, NARUC has 
long been of the opinion that the repeated delays in meeting the 
program deadlines are rooted in the Department's inefficient management 
and problems in controlling its contractors. In 1986, a commissioner 
from Michigan first testified before Congress on NARUC's behalf to warn 
of contractor control problems in the program, and lack of procedures 
to control excess program costs. And it's not only State regulators 
that have noticed. The General Accounting Office has consistently taken 
DOE to task for its lack of contractor control.
    Our policy on nuclear waste legislation calls for fundamental 
program improvement. As the attached policy resolution states, NARUC 
urges Congress to improve the efficiency of the licensing process of 
the high-level nuclear waste repository without compromising health, 
safety, and environmental factors. Congress should encourage greater 
private sector participation in implementing certain aspects of the 
Federal program, such as management and implementation of the 
multipurpose container system, construction and operation of the 
centralized interim storage facility and implementation of the 
transportation system.
    We are even willing to advocate fundamental changes to this 
program. If the DOE is unable to meet its deadlines, despite new 
legislation and financial assistance, Congress should consider removing 
the authority and responsibility for implementing the Civilian 
Radioactive Waste Management Program from the DOE and locate it in a 
new, single purpose federally chartered corporation. This point is 
still relevant today. If after the passage of legislation such as H.R. 
45, the DOE continues to miss the deadlines imposed under law, then 
Congress should consider taking the steps necessary to complete this 
important project by using a new, more efficient organization.
Implications of Federal Court Decisions on DOE's Obligations Under the 
        NWPA
    The implications of the recent Federal court decisions are quite 
clear: It is now up to Congress to fix to this program. In the 
litigation swirling around this program, we have reached a judicial 
deadlock. In terms of the costs of the program, failure to enact this 
legislation could result in the Federal government paying huge damages 
to the utilities, damages that could run well into billions of dollars. 
Allow me to explain.
    In 1995, the States and the utilities were compelled to file suit 
against the DOE by the Department's final interpretation of the 1982 
Act, in which the DOE concluded that it had no obligation to accept 
nuclear wastes from civilian reactors, absent a final repository. Given 
the Department's dreadful record in its site characterization efforts, 
this position by the DOE was entirely unacceptable. In the first case 
that was decided by the U.S. Court of Appeals for the D.C. Circuit 
(Indiana Michigan Power Co., et al v Dept. of Energy, 88 F. 3d 1272 
(D.C.Cir. 1996), the Court of Appeals concluded that the Nuclear Waste 
Policy Act of 1982 ``creates an obligation in DOE, reciprocal to the 
utility's obligation to pay, to start disposing of the SNF [Spent 
Nuclear Fuel] no later than January 31, 1998'' and that the statutory 
obligation to commence disposing of SNF no later than January 31, 1998, 
is ``without qualification or condition.''
    The same Court, in November 1997 in Northern States Power Co., et 
al v Dept. of Energy, 128 F.3d 754 (D.C.Cir. 1997) reaffirmed DOE's 
unconditional obligation to begin to dispose of spent nuclear fuel by 
the statutory and contractual deadline, and found that utility and 
State petitioners had a clear right to relief, that DOE had a clear 
duty to act, and that petitioners should pursue ``potentially adequate 
remedies'' under the Standard Contract to address DOE's avoidable 
delay. In February 1998, both State and utility parties in Northern 
States filed motions with the Court of Appeals to enforce the Court's 
decisions in Indiana Michigan and Northern States, due to DOE's failure 
to undertake any action to comply with its obligations. In an 
unpublished order issued in May 1998, the Court of Appeals determined 
that despite its earlier holding that DOE has an unconditional 
obligation under the Act to begin acceptance on January 31, 1998, the 
Act ``does not itself require performance.'' Accordingly, the Court 
declined ``to requir[e] the DOE to perform under the contract.'' The 
Court did not, however, overturn its earlier holding that in construing 
its obligation under the contract to dispose of SNF, DOE could not 
claim that its failure to perform is an unavoidable, non-compensable 
delay under the standard contract.
    In November of last year, the Supreme Court refused to hear two 
competing appeals of the Court of Appeals'' decision. In State of 
Michigan v. Dept. of Energy (No. 98-225), the Court refused to hear an 
appeal filed by the States that the Court of Appeals should have 
provided additional remedies for DOE's failure to meet the statutory 
deadline, including an order to begin waste acceptance. In United 
States v. Northern States Power Co., (No. 98-384), the Court refused to 
hear DOE's appeal of the Court of Appeals'' ruling that its failure to 
comply was inexcusable. By the Supreme Court's election, without 
comment, to not take up these cases, the final Court of Appeals rulings 
stand.
    The short summary of these court decisions is this: DOE is legally 
obligated to begin taking waste by a now expired deadline, but the Act 
itself doesn't require specific performance by DOE. The practical 
result at this time is a deadlock that can only be corrected by 
Congressional action.
    In the recent Court of Federal Claims decision in the Yankee Atomic 
case, the Court determined that the DOE is liable for monetary damages 
for its breach of its waste disposal contracts. The only question that 
remains is the determination of the amount of damages. At least eleven 
other Court of Claims actions are still pending. If each of these cases 
results in determinations that the DOE is liable, and the plaintiffs 
are able to prove their estimates of damages, then the DOE could be 
liable for several billion dollars. NARUC's position on the effect 
payments of such damages will have on program funding and whether any 
such payments should come out of the Nuclear Waste Fund is outlined in 
the attached policy resolution: DOE must be prohibited from using the 
Nuclear Waste Fund or prospective fee collections for paying costs or 
damages incurred by utilities, ratepayers, and by State and local 
governments, as a result of DOE's failure to comply with its 
obligations. Rather, any costs or damages should be paid out of a 
Federal judgement fund.
    To put it bluntly, it would be an outrage if DOE were able to pay 
for its damages out of the Nuclear Waste Fund. In effect, it would be 
requiring the ratepayers to pay for DOE's failures. Moreover, the 
statute suggests that the Nuclear Waste Fund cannot be used for 
anything other storage and disposal activities and not the payment of 
damages. See, 42 U.S.C. Sec. 10222(d))
The Need for Legislation
    I think all of our comments made here today, as well as all of the 
legal actions and delaying activities concerning this program leading 
to this moment, point directly toward the need for legislation to 1) 
accelerate acceptance, 2) strengthen the repository program, and 3) 
protect the consumers by assuring fee revenues are spent on the 
program.
    The ratepayers have upheld their end of the deal by paying for all 
of the on-site storage of civilian nuclear waste and by paying more 
than $15 billion into the Nuclear Waste Fund. Without passage of this 
legislation, the ratepayers payments into the Fund will likely continue 
to rise, the on-site storage costs will continue to rise, and the DOE 
will continue a program of non-performance marked by a strategy of 
continuing delays.
    Nor can we turn to the courts for answers. Court actions are 
expensive, slow and incomplete, while Congressional action is one shot 
and comprehensive. Only legislation by the U.S. Congress will provide 
the greatest likelihood of achieving a successful resolution to this 
matter.
Conclusion
    In conclusion, it is imperative that Congress enact H.R. 45 as 
expeditiously as possible. State regulators who labor to protect 
consumers from economic exploitation stand ready to work with the 
Congress, the Department of Energy and all other affected stakeholders 
to refocus our waste disposal policies. The Nation's electricity 
consumers deserve to see progress in a waste disposal program in which 
they are already hugely invested. At this very late date, we must not 
once again fail them.
    Thank you for your time and attention. I would be pleased to answer 
any questions you might have.

    Mr. Barton. Thank you.
    We would now like to hear from Mr. David Joos. Your 
statement is in the record in its entirety. You are recognized 
for 5 minutes to summarize.

                   STATEMENT OF DAVID W. JOOS

    Mr. Joos. Thank you Mr. Chairman, ranking member Hall and 
distinguished members of the subcommittee. I am President and 
Chief Executive Officer of Consumers Energy. We serve 1.6 
million customers in lower Michigan. We are the 12th largest 
electric utility in the United States.
    My company owns two nuclear plants located on the shores of 
Lake Michigan. Our Palisades plant continues to operate today. 
Our Big Rock Point plant was retired in 1997 at which time it 
was the longest running nuclear power plant in the United 
States. Today, I am testifying on behalf of the Nuclear Energy 
Institute, the policy organization for our industry, and 
representing the industry's view on H.R. 45.
    Let me say up front we are strongly in support of passage 
promptly of H.R. 45. I want to thank you, Mr. Chairman, 
Congressman Hall and the members of the subcommittee for your 
tireless efforts with regard to this issue and the other 14 
subcommittee members who have cosponsored this bill thus far.
    As is also true in Michigan, America's nuclear plants 
supply about 20 percent of the electricity consumed in this 
country and are critical to meeting reliability needs. And 
further, they do it without contributing to nitrous oxide, 
greenhouse gases or other air emissions.
    Unfortunately, our inability to ship used nuclear fuel from 
these facilities is a severe threat to continued operation. 
Seventeen years have gone by since passage of the Nuclear Waste 
Policy Act of 1982 and the performance of the Energy Department 
in failing to meet its obligation to accept and store nuclear 
waste is dismal, irresponsible and in violation of the law.
    During that time customers of nuclear utilities have 
contributed some $15 billion to the nuclear waste fund, nearly 
two-thirds of a billion by Michigan customers alone. Due to 
program mismanagement and diversion of over half of those funds 
that have been contributed for other purposes, we have little 
to show for it.
    Most significantly, the DOE has failed to meet its 
obligation to begin accepting fuel in January 1998 and now says 
it will be at least 11 years longer before it can start to do 
so. As a result, nuclear plants across this country are choking 
on their waste. As of the end of last year, one-fourth of the 
Nation's nuclear power plants, 109 in total, had run out of 
original-design onsite fuel storage.
    Consumers Energy's plants are among them. At our Palisades 
plant we have already invested $20 million in dry cask storage 
at that site. We are currently storing 125 metric tons of fuel 
in 13 canisters a little over 400 feet from Lake Michigan. 
Without this legislation, we will have to store four times that 
much by the year 2010 and will incur at least $50 million in 
damages over the next 5 years. And but for our inability to 
ship spent nuclear fuel from our Big Rock Point plant site, we 
could have returned that site to a green- field condition by 
the year 2003. Instead, we are spending millions to store fuel 
there and cannot complete that decommissioning project.
    We are better off than many. Others don't have options due 
to site limitations or local concerns and are facing sure 
premature shutdown without the ability to move this nuclear 
waste off of these sites.
    Clearly, this situation is intolerable and must be 
addressed. We believe that H.R. 45 offers an integrated 
solution to spent fuel management and we are strongly 
supportive of it. In addition to addressing transportation and 
interim storage and permanent storage, it provides adequate 
program life-cycle funding and establishes a designed radiation 
standard for the storage facility that is consistent with U.S. 
international scientific organizations and the State of 
Nevada's own standard.
    I might add that it allows the NRC, the Nuclear Regulatory 
Commission, to modify that standard as it finds necessary based 
on its scientific findings. We are in strong support of having 
the Nuclear Regulatory Commission have that authority.
    Despite passage of nuclear waste legislation by both the 
House and the Senate last year, the administration has 
continued to oppose that legislation, last year pointing to the 
need to complete the Yucca Mountain viability assessment prior 
to moving ahead. As you know, that assessment has now been 
complete and now they are apparently pointing to the need to 
complete the suitability assessment before we move ahead.
    We certainly are concerned about the continuing moving 
target as to when these decisions get made. That assessment 
that was released in December, in the words of Secretary 
Richardson, says that there are no show-stoppers, and we think 
now is the time to move ahead.
    On behalf of the nuclear energy industry, I urge quick 
passage.
    I may just comment that I think that the committee ought to 
pass this legislation, the full House ought to pass the 
legislation, and we should urge the administration to move very 
quickly into a dialog so that we can move this along on a 
bipartisan fashion.
    In summary, Mr. Chairman, one thing is clear. We have 
nuclear waste, we have to store that nuclear waste safely. The 
real question is, do we store it in 35 States in excess of 70 
sites, in locations like our two sites on the shores of Lake 
Michigan, or do we store it in one central location, in the 
desert in Nevada? I think the choice is clear.
    Thank you very much.
    [The prepared statement of David W. Joos follows:]
  Prepared Statement of David W. Joos, President and Chief Executive 
  Officer, Consumers Energy on Behalf of the Nuclear Energy Institute
    Mr. Chairman, Ranking Member Hall and distinguished members of the 
subcommittee, my name is David Joos. I am president and chief executive 
officer of Consumers Energy. My company owns two nuclear power plants 
that border Lake Michigan. The Palisades unit is 16 miles north of St. 
Joseph, Michigan. The second, Big Rock Point near Charlevoix, Michigan, 
was the nation's longest running nuclear power plant until its 
retirement in 1997.
    Today, I am testifying on behalf of the Nuclear Energy Institute 
and representing the nuclear energy industry's position on H.R. 45, the 
Nuclear Waste Policy Act of 1999.
    I want to express my gratitude to you, Mr. Chairman, Congressmen 
Hall, Dingell, Upton and Towns and the rest of the subcommittee for 
your unflagging commitment to resolving the nuclear waste issue. I also 
would like to thank the 14 subcommittee members who thus far have 
joined 74 other House members in co-sponsoring H.R. 45.\1\
---------------------------------------------------------------------------
    \1\ The number of H.R. 45 cosponsors was current as of February 9, 
1999.
---------------------------------------------------------------------------
    This broad bipartisan support is a clear signal to the federal 
government that it must fulfill its statutory obligation to accept used 
nuclear fuel and must adopt an integrated plan to manage the nation's 
nuclear byproducts.
    Nuclear power plants supply nearly 20 percent of America's 
electricity and are the nation's largest source of emission-free 
energy--an important distinction for policymakers who recognize the 
unmistakable nexus between energy and environmental policy. In 
Congress, and indeed across the United States, there is growing 
appreciation for the industry's vast experience with more than 2,000 
reactor years of operation and growing awareness that the industry 
offers a unique opportunity to meet energy production and clean air 
needs of the 21st century.
    Without nuclear energy, the United States will find it impossible 
to meet increasingly stringent U.S. clean air regulations as well as 
international carbon dioxide reduction goals. The nation's nuclear 
power plants provide clean air benefits while producing electricity at 
a competitive price--with production costs that are a fraction of a 
cent higher than coal-fired electricity and more cost-effective than 
natural gas, solar or wind power. A necessary component to ensure 
nuclear energy's continued benefits is the federal acceptance and 
disposal of used nuclear fuel.
Summary
    Mr. Chairman, since 1981, the Energy Department has been siting and 
developing an underground geologic repository for the disposal of used 
nuclear fuel. In recent years, however, the agency has failed to 
advance an important aspect of the program--the acceptance of used 
fuel. A little more than a year ago, the Energy Department was 
scheduled to start accepting used fuel from nuclear power plants and 
defense facilities at 78 locations in 35 states. The agency missed its 
deadline in violation of its clear statutory duty under the Nuclear 
Waste Policy Act of 1982. The law required disposal at a single, 
federally monitored location.
    Instead of beginning receipt of this fuel, the Energy Department 
has deflected and attempted to deny its legal responsibilities based on 
avoidable delays in the development of a repository. This is 
irresponsible conduct unfitting of the federal government. It breaks 
the spirit of the law by reinforcing the agency's reluctance to treat 
nuclear waste disposal as a high priority. And it certainly violates 
the letter of the law.
    In September 1998, a shift in policy seemed imminent. As part of 
events leading to the U.S. Senate confirmation of Energy Secretary Bill 
Richardson, President Clinton wrote a letter to Sen. Frank Murkowski, 
R-Alaska, chairman of the Senate Energy and Natural Resources 
Committee. The letter stated that Mr. Richardson would have the 
``portfolio'' to represent the Administration in working with Congress 
to resolve the disposal problem. This marked a reversal in course from 
Secretary Richardson's predecessors.
    Based on the president's clearly stated commitment that Secretary 
Richardson would actively engage Congress in a dialogue on nuclear 
waste disposal issues, the prospects for putting this program on a 
clear path to success seemed promising. In fact, about three months 
later, the Energy Department released a report ordered by Congress 
supporting the continued scientific study of Yucca Mountain, Nevada, as 
the site for a permanent repository for used nuclear fuel. The report, 
known as the Yucca Mountain viability assessment, ``reveals that no 
showstoppers have been identified to date,'' Secretary Richardson said 
on Dec. 18 when he released the compilation of years of scientific and 
technical assessments of the site.
    Unfortunately, however, there has been no real commitment from the 
White House or the Energy Department to meet this obligation to 
electricity consumers and all citizens.
    In the past, the Energy Department has excused its delays as the 
inevitable price of bureaucracy. A British economist wrote that while 
bureaucracies boast the appearance of silence, they violate the true 
principles of business. So it is with the Energy Department, where 
unmet deadlines and legal liabilities may spell financial disaster--
both for the industry and for the electricity customer.
    Today, the consequences of continued delay are severe. They can be 
measured first by the financial liability posed to the federal 
government--in essence, taxpayers. Importantly, consumers of nuclear-
generated electricity--not taxpayers--have paid for managing used 
nuclear fuel and will continue to do so during the life of the program. 
Second, delay will impact economic operations of U.S. nuclear plants, 
which serve as linchpins in the administration's clean air and carbon 
abatement strategies. As this committee knows well, the impact of 
protracted delay in this program will unduly strain nuclear facilities 
as they adapt to a competitive electricity market.
    First, storing used nuclear fuel indefinitely at nuclear power 
plant sites drives up on-site storage costs that commercial plants and 
their electricity customers were never intended to bear. Utilities and 
state attorneys general, finding no other recourse, turned to the 
courts to hold the Energy Department accountable for its 1998 fuel 
acceptance obligation. Electricity consumers have committed $15 
billion, including interest, to the Nuclear Waste Fund--a federal trust 
which has never operated in a fashion to fully fund the program.
    Customers who count on electricity generated at our Palisades 
nuclear power plant and other nuclear energy facilities in Michigan 
have committed $678 million for these government services. In Texas, 
Mr. Barton, the customer commitment is $323 million; in New Jersey, Mr. 
Pallone, $543 million; and in Florida, Mr. Stearns, Mr. Deutsch and Mr. 
Bilirakis, $648 million.
    Yet over the years, the federal government has diverted $7.8 
billion from the waste fund for deficit reduction. This continued 
erosion of resources should be stopped, especially in view of the 
program's need for increased levels of funding as it enters a 
construction phase for central storage. Only Congress can stop the 
federal government's use of funds in this fashion and ensure that this 
project has the financial means to move forward. Without passage of 
H.R. 45, Congress will have a difficult time making funds available 
within the budget caps to meet program needs.
    Without use of a temporary central storage facility, consumers of 
nuclear-generated electricity will be forced to pay for DOE's 
negligence once more. They could suffer as much as $56 billion in 
damages for the Energy Department's default on accepting used fuel and 
other costs associated with indefinite storage at multiple nuclear 
power plant sites. Ratepayers will continue to pay into the Nuclear 
Waste Fund for reasonable program costs. But if they pay a second, 
multi-billion dollar bill solely because of federal government 
inaction, it would be tantamount to fraud.
    The second consequence of continued fuel acceptance delays is the 
uncertainty it creates for companies like Consumers Energy that cannot 
adequately plan for future plant operation without a date certain for 
federal used fuel acceptance. Otherwise, the high-level waste program 
and its associated expenses aggravate our ability to make prudent 
decisions in a competitive market. At Big Rock Point, for instance, 58 
metric tons of nuclear fuel awaits federal management. The longer fuel 
sits at the retired plant, the greater the delay for decommissioning. 
Without legislative action, the process could take 20 to 30 years. With 
H.R. 45, however, the plant would be decommissioned in half the time 
and returned to a natural, greenfield state for other uses.
    The Palisades plant faces different challenges. The plant's spent 
fuel pool has reached capacity, prompting Palisades to store 125 metric 
tons of used fuel in 13 stainless steel containers at the site. Each 
time we refuel the reactor, the amount of used fuel grows. In 1998, 
when the Energy Department should have started fuel acceptance, 
Palisades' dry storage would have been limited to 120 metric tons. By 
2010--the date the Energy Department expects to complete a permanent 
repository--the amount of used fuel requiring dry storage at Palisades 
would grow to 600 metric tons.
    The disposition of used fuel at the Palisades site poses a serious 
economic impact on plant operations. The timing, the manner in which 
additional dry storage would be undertaken and the amount the site 
would be reimbursed for additional storage resulting from government 
inaction will dictate whether the plant operates in the future. Any 
risk to Palisades' continued operation would reverberate among all of 
Michigan electricity customers who receive their electricity from the 
nuclear power plant. These uncertainties also threaten the tax base of 
Covert Township, where Palisades is located, as well as the job 
security of the plant's 500 employees. Mr. Chairman, you can see that 
the passage of H.R. 45 is absolutely necessary to provide reliable 
federal fuel acceptance dates and maintain economic stability for our 
region and many others that rely on the nation's 103 nuclear power 
plants.
    Some industry critics argue that used nuclear fuel is best left 
alone, that it should continue to be stored at sites across the 
country. That would be a mistake. Building more dry fuel storage 
facilities is not feasible at many locations because of geographic 
constraints, zoning restrictions or political resistance. For example, 
the Indian Point units in New York are hampered by siting restrictions. 
The site's limited size and restricted equipment handling capability 
render it unfavorable for dry storage.
    Mr. Chairman, getting the Energy Department's attention has been 
incredibly frustrating for me, for my industry and for many states and 
state agencies who have taken active roles in trying to hold the 
federal government to its fuel acceptance deadline. Every year, we are 
confronted with a new delay that pushes nuclear fuel disposal further 
into the future even though the silence indicates promise for fuel 
storage today.
    As I mentioned earlier, the agency's repeated delays have forced 61 
state officials, state agencies and municipalities to go to court over 
this matter, seeking legal decisions that force DOE to take waste and 
to pay utilities to continue storing used fuel past the 1998 federal 
collection date.
    Federal judges consistently have ruled that the Energy Department 
must comply with nuclear utility contracts that require federal fuel 
acceptance in exchange for funds utility customers have been paying for 
16 years. In three rulings in 1998, the U.S. Court of Federal Claims 
ruled that the Energy Department is liable for breaching its contract 
with utilities and failing to accept used nuclear fuel. That court is 
now considering the level of damages that should be awarded to Yankee 
Atomic Power Co., Maine Yankee and Connecticut Yankee for the Energy 
Department's breach of contract. Yankee Atomic alone is seeking $70 
million. Seven other utilities have filed individual suits seeking 
monetary damages. More are expected.
    Mr. Chairman, let me repeat the fact that the industry has been 
presented no alternative to litigation. We always have believed that 
the preferred solution is for the Energy Department to meet its 
obligation to manage used fuel at a central location.
    The Energy Department's waiting game has become much too costly for 
consumers to endure. In the years ahead, it may threaten the economic 
viability of some plants as the energy landscape shifts to a 
competitive marketplace. By passing H.R. 45, this committee has an 
opportunity to end the delays and the drain on consumers. This 
legislation provides a comprehensive management program that integrates 
storage, transportation and disposal so that the government can begin 
fuel acceptance in 2003. Once removed from sites, the fuel would be 
stored temporarily at a central facility until a permanent repository 
is completed in 2010.
    Mr. Chairman, one thing is clear: used fuel will have to be stored 
properly. The question is, does it make more sense to store it in 
dozens of locations across the country--including our two sites on the 
shores of Lake Michigan--or at one location in the Nevada desert?
    Nuclear Regulatory Commission Chairman Shirley Jackson, in 
testimony before the committee last year, endorsed a single disposal 
site as a means to more safely and efficiently monitor used nuclear 
fuel.
    H.R. 45 does more than create certainty for fuel acceptance and 
disposal. The legislation ensures adequate funding through the life of 
the program. And it establishes a 100-millirem radiation standard that 
is consistent with U.S. and international scientific organizations. 
This standard also ensures the same level of public safety as the 
Nevada state radiation protection standard.
    While the Energy Department continues a responsible job of 
collecting scientific data on Yucca Mountain, we have yet to fully 
address the complex political dynamics that surround this issue.
    It still amazes me that the government could put a man on the moon 
in 10 years but that it will take it 28 years to build an underground 
repository for used nuclear fuel.
    In light of DOE's repeated delays, I respectfully urge the 
committee to expedite a used fuel management and disposal program 
through reform legislation--H.R. 45. At the same time, this committee 
should revive the dialogue with the administration so that the two can 
work in partnership to begin waste acceptance.
The Need for Reform Legislation
    Mr. Chairman, as the preceding discussion indicates, a significant 
shift in the Energy Department's program direction must take place in 
order to achieve used fuel acceptance from the nation's nuclear power 
plants and defense facilities. Only Congress can take the appropriate 
measures to chart a sure course for the near-term receipt and storage 
and ultimate repository disposal of used nuclear fuel.
    The Nuclear Waste Policy Act of 1999, H.R. 45, accomplishes this 
programmatic shift while protecting public health, safety and the 
environment. Mr. Chairman, you and the members of this committee are 
quite familiar with the features of this legislation, which is 
virtually the same as legislation the House of Representatives approved 
307-120 during the 105th Congress. Modifications have been made to the 
program's funding provision to accommodate congressional budget scoring 
rules. With that exception, and a date change for operation of a 
temporary storage facility, the legislation's provisions are similar to 
that of the 1997 legislation. The essential components of H.R. 45 
include:

<bullet> Establishing a used nuclear fuel management system, including 
        development of a temporary storage facility within Area 25 of 
        the Nevada Test Site. The site would safely hold used nuclear 
        fuel until the Energy Department completes a permanent 
        repository. A temporary storage facility is necessary since the 
        Energy Department has stated that the agency will not accept 
        used fuel without a disposal or storage facility;
<bullet> Establishing a date for operating used fuel storage. Temporary 
        storage would begin operation by June 2003. A permanent 
        repository is scheduled for January 2010 operation;
<bullet> Limiting the size of a temporary storage facility and 
        permitting the Energy Department to determine the repository's 
        size. A temporary storage facility would be built in two 
        stages--10,000 metric tons of uranium (MTU) in the first phase, 
        expanded up to 40,000 MTU in the second phase;
<bullet> Complying fully with the National Environmental Policy Act 
        requirements by establishing clear milestones and schedules for 
        preparation of environmental documents, conduct of licensing 
        reviews and all other steps involved in siting, design, 
        licensing and construction of this central storage facility;
<bullet> Establishing a radiation health standard of 100 millirems per 
        year for licensing a repository. The standard is consistent 
        with Nevada state regulations and international scientific 
        recommendations. For example, Nevada's Administrative Code, 
        section 459.335, states, ``The total effective dose equivalent 
        to any member of the public from [a] licensed and registered 
        operation does not exceed 100 millirems per year;''
<bullet> Creating a new funding mechanism consisting of a combination 
        of a user fee and a mandatory fee, with an average fee to 
        electricity consumers of 1 mill per kilowatt-hour until the 
        repository opens. During the averaging period, the fee may not 
        exceed 1.5 mills/kwh in any given year. After the repository 
        opens, the fee is capped at the current rate of 1 mill/kWh;
<bullet> Instructing the Energy Department to minimize the use of 
        transportation routes through populated areas;
<bullet> Providing for transportation planning, training and technical 
        assistance to states, emergency responders and labor 
        organizations; and
<bullet> Providing for land conveyances and benefits for affected 
        communities, including payments equal to taxes.
    The legislation also builds upon sound technical and scientific 
assessments that support the siting of a permanent repository for used 
fuel at Yucca Mountain.
    Indeed, the Energy Department's December 1988 report to Congress on 
the viability Yucca Mountain notes that, ``over 15 years, extensive 
research has validated many of the expectations of the scientists who 
first suggested that remote, desert regions of the Southwest are well-
suited for a geologic repository.''
    Secretary Richardson, in an update to the president about the 
viability assessment, said that scientific and technical work at Yucca 
Mountain should proceed to further the project goal of opening a 
repository in 2010.
Conclusion
    Nearly 20 percent of the nation's electricity consumers rely on 
nuclear power plants for energy that also preserves our air quality. 
With no harmful emissions, nuclear energy assists the United States in 
meeting federal clean air regulations and international goals to reduce 
carbon dioxide worldwide. No other fuel source helps the nation achieve 
its air preservation goals while offering reliable, competitive 
electricity to customers. And by balancing the nation's energy 
portfolio, nuclear energy provides security from international fuel 
crises.
    For these reasons, and for the security of our state economies, 
Congress must tackle a significant environmental challenge for the 21st 
century--securing federal acceptance of used nuclear fuel and providing 
certainty for its disposal. Without H.R. 45, the federal high-level 
waste program will wend its way through a bureaucratic labyrinth that 
offers no solution. With H.R. 45, the industry and the nation can meet 
all other challenges; energy security, air conservation and competitive 
electric production.
    The visionary leadership of this committee will assure a new level 
of intensity and commitment for this landmark initiative.

    Mr. Shimkus [presiding]. Thank you.
    The next panelist is Mr. Richard Abdoo, Chairman and CEO of 
Wisconsin Electric Power Company. Welcome. You have 5 minutes.

                 STATEMENT OF RICHARD A. ABDOO

    Mr. Abdoo. Thank you, Mr. Chairman and members of the 
subcommittee. My name is Richard Abdoo. I am the Chairman and 
CEO of Wisconsin Electric Power Company, a utility based in 
Milwaukee, Wisconsin, and the owner of the Point Beach Nuclear 
Power Plant. I would like to express my views on the amendments 
to the Nuclear Waste Policy Act embodied in H.R. 45.
    My essential message to you today is to encourage you to 
speed passage of this legislation, as well as to draw your 
attention to the need for short-term action on the national 
nuclear waste issue.
    I am here as a utility executive in the unenviable position 
of being perhaps the first in line to have a safe, efficient, 
fully operational nuclear plant shut down for the lack of a 
storage solution. Time is of the essence, as my company's 
nuclear plant, Point Beach, will exhaust approved onsite 
storage of spent fuel by the year 2004.
    Very simply, we are exploring every available and prudent 
option to either expand onsite storage or ship spent fuel to an 
appropriate site. But if we are not successful, then we will 
face premature shutdown of Point Beach.
    I would like to accomplish three things in my short time 
with you today. I would like to explain why we need enactment 
of this bill as soon as possible, why we need to have 
contingency plans built into H.R. 45 and what the consequences 
are for the customers of Wisconsin Electric and other utilities 
if we are not successful in finding a solution to this national 
concern.
    First, let me point out that the Department of Energy as 
you have heard several times today is more than a year late in 
initiating its responsibility for removing spent fuel from 
commercial nuclear reactors as required by the Nuclear Waste 
Policy Act of 1982. Under that law, utility consumers 
nationally have paid more than $15 billion to the Federal 
Government, and Wisconsin Electric consumers alone have paid 
more than $208 million.
    After more than 17 years, DOE is arguably no closer to 
accepting fuel now than it was back in 1982. H.R. 45 will put 
teeth into the requirement that Congress passed back when the 
Milwaukee Brewers last were World Series contenders. Believe 
me, that is a long time ago.
    Why do we need enactment as soon as possible? To put it 
most bluntly, this is perhaps our last best chance to force the 
Federal Government to live up to its responsibility to accept 
spent nuclear fuel.
    When my company and many others designed our nuclear power 
plants, we did so with the assurance that the Federal 
Government would provide long-term disposal for our spent fuel. 
Needless to say, that has not happened. If I can remember 
correctly, there have been six administrations that have failed 
to live up to this promise. The legislation before you strictly 
and clearly addresses that promise.
    Next, why do we need contingency plans built into H.R. 45? 
As a utility executive, I must constantly prepare contingency 
plans in order to assure uninterrupted power supply to my 
customers. As I will explain in a minute, the Point Beach plant 
is vital to reliability for serving my customers, and I must 
pursue every reasonable option for keeping this plant on-line. 
With the passage of time and the administration's inability to 
meet its responsibility, we find ourselves in the precarious 
position of requiring near-perfect execution of these options 
if we are to avoid shutting down reactors due to a lack of 
spent fuel storage.
    In my own plant's case, we designed spent fuel pools with 
the assumption that the Federal Government would take this 
fuel. But it did not. So we had to obtain approval from the 
State of Wisconsin for onsite dry cask storage. Due to the 
interest in this issue, gaining approval was a 3-year legal 
process.
    We must now seek approval for more casks, even though the 
last time it was assumed that the Federal Government would 
surely have met its responsibility by 1998. But it did not. We 
cannot afford another 3-year process and still make our 2004 
deadline.
    As a second contingency plan, we are renegotiating our 
contract with DOE. The D.C. Circuit Court suggested that 
utilities pursue administrative remedies under their contracts, 
and we are. We have not sued the DOE. We have elected to 
negotiate with them. Those discussions are ongoing and must 
come to completion soon if we are to have a timely contract 
resolution to our problem. But I am not optimistic.
    Additional contingency options can be built into this 
legislation. If there is any slippage in the 2003 spent fuel 
acceptance date in the bill, if there is any further delay in 
the Federal Government's ability to meet this deadline, if 
there is any problem in presenting to the President a bill he 
can sign before the end of this Congress, then we are in danger 
of shutting down not only Point Beach but an increasing number 
of nuclear plants around the country. Therefore, I would ask 
you to consider measures that would clarify DOE's authority to 
provide for additional onsite storage or provide authority to 
DOE for shipping waste to appropriate offsite facilities.
    In summary, Mr. Chairman and members of the committee, let 
me close by encouraging you to move this legislation as quickly 
as possible. We have already moved out of the comfort zone, and 
I feel that we may face a gap between the time we run out of 
onsite storage and the time when the Federal Government is able 
to accept spent fuel at an interim storage facility.
    But do not take my remarks as detracting from H.R. 45. It 
is a good bill and I support it. Thank you very much.
    [The prepared statement of Richard A. Abdoo follows:]
  Prepared Statement of Richard A. Abdoo, Chairman and CEO, Wisconsin 
                         Electric Power Company
    Mr. Chairman and Members of the Subcommittee: Thank you for the 
opportunity to appear before you today to present Wisconsin Electric 
Power Company's views on H.R 45, amendments to the Nuclear Waste Policy 
Act of 1982. My essential message to you today is to encourage you to 
speed passage of this legislation but also to draw your attention to 
the need for short-term action on the nuclear waste issue. Addressing 
this problem is key to keeping the Nation's, including my company's, 
nuclear plants operating, which in turn is key to the continued 
reliability of our electric supply, and our ability to achieve air 
quality standards, including meaningful greenhouse gas reductions. The 
challenge is that there may be a gap in time between the point when 
existing on-site storage of spent nuclear fuel is filled to capacity, 
and the time spelled out in H.R. 45 when interim storage or a permanent 
repository would be ready to accept shipment of fuel. I ask that you 
consider options that could be added to H.R. 45 that could fill this 
gap.
H.R. 45 Should Be Enacted As Soon As Possible
    If there is any major problem with this legislation it is that it 
should have been enacted years ago. H.R. 45 is a good bill. H.R. 1270 
from 1997 was a better bill. H.R. 1020 from 1995 was the best bill--
because it would have addressed this problem four years ago. 
Unfortunately, due to the Nation's delay in addressing this issue I 
have a growing concern that even the streamlined approach articulated 
in H.R. 45 may not provide relief in time to avoid shutdown of certain 
nuclear power plants. And while I'm speaking today from my own 
company's perspective, you should be aware that given the acceptance 
date, the acceptance rate, and the likely acceptance schedule based on 
DOE's ``Acceptance Priority Ranking'' report, there are a growing 
number of nuclear power plants that may be forced into premature 
shutdown if we do not find a solution to the nuclear waste issue soon.
    My company operates 1000MWe of generation in two units at its Point 
Beach Power Plant. This plant has had one of the industry's best 
performance records for over 25 years. In the last three years we have 
undergone intense scrutiny by the Nuclear Regulatory Commission, 
invested hundreds of millions of dollars to bring our facility up to 
new standards, and emerged with renewed confidence in our ability to 
operate this facility safely and economically. Our licenses run to 2010 
and 2013 respectively. Yet, we are threatened with premature shutdown.
    If legislation would have been enacted four years ago Wisconsin 
Electric would not be confronted with this critical situation. As I 
mentioned earlier, according to the ``Acceptance Priority Ranking'' 
report and the timetable in section 508 of H.R. 45, Point Beach is 
scheduled to begin shipment of fuel to an interim facility in the first 
year of acceptance, 2003, as well as in the nine subsequent years of 
acceptance. But even this date, 2003, is not guaranteed by this 
proposal. Section 508 of H.R. 45 would allow the Department of Energy 
to stretch acceptance of spent fuel over a five year period starting in 
2003 which means that all waste could be refused from 2003 to 2007 as 
long as the full five year amount were accepted in 2008. In contrast, 
Point Beach will exhaust approved on-site storage of spent fuel at the 
Point Beach Power Plant by the year 2004, four years before there is an 
absolute date for acceptance of fuel under H.R. 45.
     The Department is over a year late in initiating its 
responsibility for removing spent nuclear fuel from commercial nuclear 
utilities as required by the Nuclear Waste Policy Act (NWPA) of 1982 
and by its contract with each nuclear utility. Under that contract, my 
customers have paid and continue to pay the federal government to take 
title, remove and permanently manage spent nuclear fuel generated from 
my plants. Utility consumers nationally have paid $15 billion to DOE; 
Wisconsin Electric consumers alone have paid more than $208 million. 
And after 17 years, DOE is arguably no closer to accepting fuel than it 
was in 1982.
Wisconsin Electric Background
    The Wisconsin Electric Power Company is an electric and gas 
investor-owned utility headquartered in Milwaukee, Wisconsin serving 
1.4 million customers with annual revenues of $1.8 billion. Wisconsin 
Electric produces, delivers and sells electric energy in an area of 
about 12,000 square miles in the southeastern, east central and 
northern portions of Wisconsin, and the Upper Peninsula of Michigan. 
The total area's population is about 2.3 million, which includes 
metropolitan Milwaukee. Peak electric demand is about 5,500 megawatts. 
In addition to Point Beach Power Plant which supplies about 25 percent 
of electric demand, we have six coal plants which supply two thirds of 
our demand and the rest is supplied by hydroelectric, natural gas, oil, 
and purchased power.
    Point Beach is a Westinghouse plant with two units of 500 megawatts 
each. Unit 1 began operation in 1970, unit 2 in 1972. Unit 1's license 
will expire in 2010 and unit 2's in 2013. About a quarter of the 121 
fuel assemblies are replaced annually. Each fuel assembly contains 179 
rods. In 1995, Point Beach began loading spent fuel into dry casks on 
the plant property. The Public Service Commission of Wisconsin 
authorized us to load up to 12 which, combined with our spent fuel 
pool, provides enough storage for operation of the plant through 2004.
    The legal history of spent fuel at Point Beach has put us in a 
unique position within the industry. Wisconsin Electric was not part of 
an original lawsuit against the Department of Energy seeking to enforce 
the federal government's obligation (under the Nuclear Waste Policy Act 
of 1982) to begin removing spent nuclear fuel from investor owned 
utilities by January 31, 1998. But, we became a joint petitioner when 
DOE failed to meet the January 31, 1998 acceptance date and did not 
provide an adequate remedy. Subsequently, the District of Columbia 
Circuit Court of Appeals declined to directly order DOE to take spent 
fuel, suggesting that utilities pursue remedies under the contract. At 
that point,Wisconsin Electric did not join with other investor-owned 
utilities in continued litigation and instead is trying to pursue a 
path of negotiation with DOE in the hopes of crafting an administrative 
solution under terms of the contract with the Department. So far, our 
efforts have not been successful.
The Threat to Reliability and the Environment
    Point Beach is a vital part of the electricity supply in the upper 
Midwest, and the key to keeping Point Beach on line is storage of spent 
fuel. If we cannot expand on-site storage and are unable to ship waste 
to an appropriate site then we must shut down our plant by 2004. 
Shutting down 1000 MWe of generating capacity will strain the 
reliability of our system since Point Beach supplies approximately 25 
percent of the power used by our customers. And beyond the Wisconsin 
Electric system, any significant reduction in electric generation 
capacity will exacerbate an already tight supply situation in our 
region of the country. As you know, the Midwest has experienced two 
consecutive summers of reliability concerns.
    Because Point Beach does not emit any greenhouse gases or other 
atmospheric emissions, its premature shutdown would also be a 
significant blow to efforts to improve air quality. If we were forced 
to shut down Point Beach we would likely replace the capacity with a 
clean power source, such as combined cycle natural gas. The increased 
greenhouse gas emissions alone would be very significant. Substituting 
this natural gas capacity for Point Beach would increase carbon dioxide 
emissions by 3.5 million tons per year in addition to increased 
nitrogen oxide and other atmospheric emissions!
    My company's ability to commit to meaningful greenhouse gas 
reductions hinges upon continued operation of these emission free 
facilities in Wisconsin. While I recognize the controversy surrounding 
policy proposals to address potential global climate change, Wisconsin 
Electric is committed to addressing the global warming issue. Wisconsin 
Electric was one of the first investor owned utilities to establish in 
a developing nation a tree planting program for carbon sequestration, 
and one of the first to retrofit an aging coal plant with new natural 
gas technology as a means of reducing carbon emissions. These two 
international programs comprised two of the seven original projects of 
the United States Initiative on Joint Implementation Program. Wisconsin 
Electric has the largest green pricing program of its kind in the 
country which offers customers a choice in choosing green energy 
alternatives. I have participated in the Vice President's climate 
change consultation meetings although I hasten to point out that 
Wisconsin Electric does not believe that the Kyoto Protocol is the best 
approach to a global climate change policy. But, as I noted earlier, 
the ability of Wisconsin Electric to commit to any meaningful 
greenhouse gas reductions is fatally undercut if we are forced to shut 
down Point Beach prematurely.
Contingency Planning
    We are exploring all reasonable options to keep the Point Beach 
plant operating by obtaining sufficient storage capacity for the spent 
nuclear fuel, and we are in a situation where we must explore all 
options in the hopes that one of them will succeed. This legislation is 
obviously a key part of our goal to keep the plant operating. Under 
this bill, the Federal government would be ready to accept spent fuel 
in June 30, 2003. On that date, shipments would begin according to the 
schedule in section 508 of H.R. 45. But, we can not absolutely rely on 
this date. In addition to the five-year stretching concern I expressed 
earlier, my confidence in DOE's ability to meet this schedule is not 
high. DOE was obligated to begin taking spent fuel in 1998 and had 17 
years and $15 billion to prepare. It is common knowledge that DOE 
failed to meet this schedule.
    Even with this date and shipment schedule mandated in H.R. 45, 
Wisconsin Electric may still have to expand on-site storage in order to 
have enough space to keep the plant running, and we are exploring all 
other potential options. We plan to initiate a proceeding with the 
state of Wisconsin to seek approval for additional dry casks for 
storage of spent fuel. But, such requests put tremendous pressure on 
state and local officials--the last request led to more than three 
years of legal proceedings--and in any case nuclear waste is a Federal 
problem. We are negotiating with the Department of Energy to resolve 
our contract dispute in a way that will allow us to expand storage or 
ship spent fuel. We are monitoring and assessing private storage 
options. We are putting every effort into making one of these options 
work for us. Under any one of these options everything must occur on 
time and according to plan in order for us to be able to operate until 
the June 30, 2003 acceptance date in the bill.
    However, if none of these options succeed, if there is any slippage 
in the 2003 date, if we do not get a positive response from the state, 
or if the Department of Energy exercises its ability under section 508 
of this bill to amend the acceptance schedule, then we may be forced to 
shut down Point Beach. And other utilities that are in a similar 
situation may be forced to take similar action. This is why I think you 
should consider measures that could fill a gap between the time that 
plants run out of space and when the Federal Government actually 
accepts our spent fuel. Given the history of this program I think it is 
only prudent to consider measures for dealing with the waste problem 
should another Federal mandate to accept nuclear waste not be achieved 
precisely on schedule.
    I greatly appreciate the prompt attention that the U.S. House of 
Representatives has repeatedly given to the nuclear waste issue and 
that you are giving today. However, as a utility executive I must 
constantly prepare contingency plans in order to keep the lights on and 
I do not have enough confidence to tell my customers and state 
regulators that the Federal government is definitely going to deal with 
the nuclear waste problem this year. If it appears there will be no 
solution and we will have to shut down Point Beach, I must begin 
preparations soon to plan for replacement power.
    While I must make contingency plans, I also urge you to consider 
adding measures to this bill that could form a national contingency 
plan should we need one. These steps could include clarifying authority 
for the Department of Energy to provide additional on-site storage or 
providing authority to DOE to ship spent fuel to off-site storage 
facilities. For those plants facing imminent shutdown, another step 
could be to create a system by which nuclear utilities could trade 
positions in the shipment queue so that plants that are necessary for 
reliability reasons might be able to trade places with plants that 
higher up in the queue.
Conclusion
    Mr. Chairman, I do not want my remarks here to detract from the 
desireability of H.R. 45--it's a good bill and I support it. Nor do I 
want to suggest that a long-term storage solution is not critical--I 
believe it is. I am heartened by the progress in the viability 
assessment of Yucca Mountain and am pleased that the assessment 
``reveals no showstoppers.'' I am here as a utility executive in the 
unenviable position of being perhaps the first in line to have a safe, 
efficient, and fully operational nuclear plant shut down for the lack 
of a storage solution. H.R. 45, as good as it is, needs something more 
to provide me the assurance I need that my plant can continue to 
operate after 2004. This plant is crucial to my being able to supply 
energy reliably to my customers, and do my part for reliability in my 
region. This plant is a key element in any commitment I can make to 
reduce greenhouse gas emissions in a meaningful way. So, today I ask 
your consideration for adding to H.R. 45 measures that can bridge the 
gap between when the DOE interim storage facility actually accepts my 
spent fuel and when my storage options are exhausted. Thank you.

    Mr. Stearns [presiding]. Thank you.
    Ms. Joan Claybrook. Yes.

                  STATEMENT OF JOAN CLAYBROOK

    Ms. Claybrook. I thank you, Mr. Chairman. I appreciate the 
opportunity to testify here today.
    I am Joan Claybrook, I am President of Public Citizen, a 
national public interest organization with 150,000 members 
across the country. I am testifying here today also on behalf 
of the Sierra Club and the Nuclear Information and Resource 
Service. I am testifying on behalf of all of them.
    For over 20 years our organizations have worked to shape a 
responsible public policy for the disposition of nuclear waste, 
an intractable program with no known solution, and no country 
in the world has found an answer to the long-term isolation of 
these highly toxic wastes. The centralized interim storage of 
highly irradiated nuclear fuel that is mandated by this bill, 
H.R. 45, would be a mistake, in our view, for health, safety, 
environmental and for fiscal reasons; and would undermine the 
capability, we believe, based on the testimony and what we have 
heard from the Department of Energy, to complete its work on a 
permanent repository that it has now undertaken.
    No emergency exists that requires the immediate removal of 
nuclear waste from its current storage facilities at commercial 
reactors, and I think that that is perhaps one of the most 
important things that I could say here today. There is not an 
emergency that would cause the need to have an interim storage 
facility.
    For 2 decades, the nuclear industry has lobbied 
policymakers to legislate for this government bailout of 
private industry's intractable waste problem. Interim 
centralized storage offers no advantages and adds disadvantages 
to localized storage at nuclear power plants. Interim storage 
sites will not remove the waste that are at the plants anyway, 
because, of course, many of these plants will continue to 
operate and continue to create the waste.
    The risk that is posed by moving 100,000 shipments of 
highly irradiated fuel on our highways and on rails across 43 
States over the next 30 years is immense. Eighty-two percent of 
the American public do not want this waste to be transported 
near where they live.
    The mandate in H.R. 45 for transferring waste to an interim 
storage facility represents a massive 4,350 percent increase in 
nuclear waste shipments resulting in the exposure of over 50 
million Americans. It is estimated that we can expect between 
210 and 354 crashes on our highways with this waste. A small 
release of this waste would contaminate 42 square miles, taking 
460 days and $620 million to clean up. That doesn't take into 
account sabotage and other potential problems.
    The Department of Energy's viability assessment which 
recently was released provides conclusive evidence, in our 
view, based on the Department's own guidelines, that Yucca 
Mountain should be disqualified. It shows that the water travel 
time from repository to accessible environment is only about 
500 years, and we view this as shocking in view of the highly 
dangerous waste life, which is from 250,000 to 1 million years.
    The viability assessment contains estimates of radiation 
exposure indicating that a large increase in cancer rates may 
occur in the area around Yucca Mountain. This is the result of 
a dose 20 times larger than the amount allowed by standards 
applied to other waste dumps. In our view, any increase, no 
matter how small, in background levels of radiation that could 
be controlled is intolerable.
    Several independent scientific studies raise more concerns 
over Yucca Mountain. These significant questions about the 
safety of Yucca Mountain are not addressed in your bill, H.R. 
45. Instead of setting a safety floor, H.R. 45 wrongly preempts 
Federal, State and local laws that are more protective of the 
public and curtail the National Environmental Protection Act. 
We find it quite interesting that a committee and the 
leadership of this Congress that speaks about the 10th 
amendment and States' rights would pass legislation such as 
this which is so preemptive of the rights of States. And we 
believe that it certainly undermines the public confidence in 
this program. The bill sets radiation protection standards that 
are four times greater than the established standards and 
prohibits the EPA from setting its drinking water standards.
    Since I am the only witness at this panel on this, could I 
have a few more minutes, Mr. Chairman?
    Mr. Stearns. Sure. I think so.
    Ms. Claybrook. I would point out that in 1995, the Congress 
eliminated the national 55-mile-an-hour speed limit and decided 
to let the States set their own standards. Why then would the 
Congress want to prevent the States from setting a higher 
transportation safety standards for these highly dangerous 
wastes?
    H.R. 45 also forces taxpayers, not just the industry, to 
pay for the ever-increasing cost of the nuclear waste issue. 
Predictions of the shortfall, including the interim storage, 
have risen to $45 billion. This legislation causes an even 
greater shortfall than legislation introduced last year, yet it 
further reduces the fee that the industry would pay.
    Retaining nuclear waste at the utilities through 2010 is 
seven times less expensive than the costs through 2002 of 
interim central storage in Nevada. If passed, the legislation 
is likely to cost taxpayers more money from litigation, because 
it continues the trend in the nuclear waste policy of setting 
impossible deadlines. The ongoing litigation against DOE by the 
nuclear utilities is the result of deadlines that could not be 
met scientifically, that were established by the Nuclear Waste 
Policy Act of 1982 over the objection of environmental and 
safety organizations. More legislative deadlines that DOE 
cannot meet will result in more taxpayer money being paid to 
utilities following their lawsuits.
    In summary, Mr. Chairman, H.R. 45 is bad public policy, and 
it really creates two possibilities if the legislation passes 
and the waste is shipped for interim storage. One, the danger 
exists that because the waste is there, the dump will become a 
permanent storage facility without a number of necessary 
safeguards. The other possibility is that because a site is so 
problematic, waste will need to be moved again, needlessly 
increasing risks.
    Lawmakers should carefully consider the evidence and the 
public view and not be swayed by the powerful nuclear industry 
lobby.
    Thank you very much.
    [The prepared statement of Joan Claybrook follows:]
  Prepared Statement of Joan Claybrook, President, Public Citizen, on 
 Behalf of the Nuclear information And Resource Service and the Sierra 
                                  Club
    Thank you for the opportunity to present Public Citizen's view on 
civilian high-level radioactive waste. Public Citizen is a non-profit, 
non-partisan, consumer research and advocacy organization with 150,000 
members nationwide. We accept no funding from corporations, 
governments, or trade associations.
    Because of the long-term potent threat to public health, safety and 
the environment, over the past 25 years Public Citizen has been 
actively engaged in the public policy debate about the responsible 
disposition of nuclear waste.
    The highly irradiated nuclear fuel from commercial reactors is one 
of the most toxic substances known to man. No nation has found the 
long-term answer to the problem of isolating this extremely dangerous 
waste from humans and the environment for the 1000 millennia during 
which it remains highly toxic and hazardous. The decisions made today 
about the disposition of waste will have ramifications for the next 
30,000 generations to come. In the past, policy makers have not heeded 
the warnings of the public interest community about nuclear waste 
policy. As a result, fateful decisions concerning nuclear waste policy 
were made. Listen to our warnings over the years:
    In the 1970s, when new nuclear plants were still being planned, we 
cautioned policy makers about the inadvisability of relying on an 
energy source with an intractable waste problem. In the late 1970s, 
when citizens who lived near nuclear power plants became extremely 
apprehensive about nuclear waste disposal, national organizations and 
citizen's groups educated policy makers, the media, and the public 
about the enormous dangers, ramifications and costs. Prior to the 
passage of the Nuclear Waste Policy Act of 1982, policy makers were 
warned by Public Citizen and other environmental organizations that the 
scientific knowledge necessary for locating and evaluating permanent 
site locations based on a geological evaluation did not yet exist. Then 
when the 1982 law was amended in 1987 to make Yucca Mountain the only 
candidate site for a permanent repository, we told policy makers 
repeatedly that the decision was wrong because it was based on 
politics, not science.
    In retrospect, had policy makers listened to the warnings 
concerning nuclear waste and the laws pertaining to it, we would not 
have had the string of public policy failures related to nuclear waste. 
At a minimum, the DOE would not be spending taxpayer money to defend 
the government's inability to meet impossible deadlines. Instead of 
wasting tax dollars, millions of dollars in public funds could have 
been devoted to scientific research to search for an acceptable 
disposition of nuclear waste.
    Today, I must report that the ``solution'' has still not been 
discovered and that the nuclear industry, richer and more powerful than 
ever, is still lobbying for a legislated mandate to take the highly 
toxic waste it created off its hands. Hastily passed legislation 
mandating a massive transportation scheme to an inappropriate site 
would be yet another wrong decision to be regretted in the future. The 
evidence is compelling. The Nuclear Waste Policy Act of 1999, H.R. 45, 
mandates a premature and false solution to the nuclear waste problem 
that would have many consequences for future generations. Let us 
examine the evidence.
    First, we should be clear, no emergency exists that requires the 
immediate removal of nuclear waste from its current storage facilities 
at commercial reactors. For almost two decades, the nuclear industry 
has lobbied policy makers in an attempt to solve its public relations 
problems in communities where reactors are located and to reduce its 
liability risks.
    In reality, centralizing interim storage, as mandated by H.R. 45, 
would increase the risks to public health and safety. Although high-
level waste should not stay at the point of generation forever, in the 
short-term it creates less risk than moving it. While we should never 
belittle the risks of on-site storage, the risks posed by operating 
nuclear reactors dwarfs the risks posed by the nuclear waste stored 
next to the reactor.
    Even though the nuclear industry claims that declining space in 
reactor fuel pools is a major crisis, utilities are able to expand 
their on-site storage capacity with dry casks, and many have already 
done so. Although we believe that dry-cask storage on site is the least 
unsafe method of storing nuclear waste, this does not mean that we 
endorse either the particular ways in which this technology is being 
implemented or the Nuclear Regulatory Commission's (NRC) lax oversight 
of casks. While we do not believe that high-level waste should stay at 
the point of generation forever, we have not seen any evidence that we 
should rush to move the waste to an inadequate and unsafe interim 
storage facility. Storing the waste on-site for the interim will allow 
the scientific community to continue researching for better options.
    Second, the risk posed by moving 100,000 shipments of highly 
irradiated nuclear waste on the roads and rails of 43 states and 320 
congressional districts, over the next 30 years, is immense. The 
mandate in H.R. 45 for hauling waste to an interim storage facility 
represents a massive 4350% increase in nuclear waste shipments, 
exposing 50 million American citizens who live within a half-mile of 
the transport route to untold and grotesque risks.
    Crashes will happen. In reviewing the Department of Transportation 
(DOT) data on hazardous material crashes, we found that 99,490 crashes 
caused the release of hazardous material into the environment over a 
10-year period, from 1986 to 1996. The result of these crashes was not 
only $317 million in damages, but 114 deaths, 356 major injuries, and 
4305 minor injuries.
    Based upon DOE assumptions about the nuclear waste shipments, we 
can project 210 to 354 crashes will occur in the next 30 years if H.R. 
45 becomes law. Furthermore, testing procedures for nuclear waste 
transport casks are inadequate and will likely lead to horrible 
injuries and contamination from nuclear waste crashes. A conservative 
DOE crash scenario of a crash in a rural area suggests massive cleanup 
efforts would be necessary, costing $620 million, requiring 460 days to 
detoxify the estimated 42 square miles. Urban crashes would be even 
more severe in terms of horrible injuries and an increased likelihood 
of radiation exposure to innocent victims.
    Last week, we had a preview of the types of crashes we can expect 
to see if H.R. 45 becomes law. In Chicago, a truck improperly shipping 
empty nuclear material canisters struck an overpass, knocking canisters 
off the truck and on to other cars. Fortunately the canisters were 
empty. Even so, the highway, a major Chicago thoroughfare was shut down 
for several hours. The potential damage from crashes involving highly 
radioactive nuclear waste could be devastating.
    The public recognizes the potential problems. A recent poll found 
that 82% of those surveyed do not want to live near a nuclear waste 
transport route. As a result, members of Congress who vote for 
legislation mandating this transportation will have to explain their 
vote on H.R. 45 to constituents who overwhelmingly and adamantly oppose 
its provisions. It should be remembered that passage of H.R. 45 will 
result in waste transportation through 320 congressional districts.
    Third, the Viability Assessment (VA), the DOE's report on the Yucca 
Mountain site, provides conclusive evidence that the Yucca Mountain 
dump should never be built, based on DOE's own guidelines. A key piece 
of evidence is the data showing that water travel time from the 
repository to the accessible environment is only about 500 years. This 
is indeed shocking. It indicates that serious health hazards will be 
present at and around the Yucca Mountain site over the long term 
because nuclear waste remains highly toxic.
    A report in the January 7, 1999 issue of Nature provides further 
evidence that migration of radioactive material through groundwater 
occurs at a much faster rate than previously understood. Plutonium from 
an underground nuclear weapons test, conducted 30 years ago at the 
Nevada Test Site, has been detected in a test well located nearly a 
mile from the blast site. Further evidence can be gleaned from a report 
issued in December 1998 by the Institute for Energy and Environmental 
Research. Recent geological sampling indicates that warm groundwater 
has flooded the region where the proposed repository is to be located.
    The Viability Assessment and the other scientific documentation 
provides dramatic proof of the lack of certainty surrounding 
predictions of how long radionuclides can be isolated. This compelling 
information should make the Yucca Mountain site ineligible for a waste 
dump according to DOE's disqualifying conditions in their own 
guidelines.
    Related to this, H.R. 45 does not protect the public from dangerous 
levels of radiation in groundwater. Not only does H.R. 45 preempt the 
Safe Drinking Water act, it fails to provide any protection for 
groundwater, the key pathway of exposure to radiation.
    Fourth, the Viability Assessment contains estimates of radiation 
exposure indicating that a large increase in cancer rates may occur in 
the area around Yucca Mountain. The exposure models demonstrate that 
the amount of radiation that the population living near the site will 
be exposed to will peak at 300 millirems over a period of 300,000 
years. This almost doubles current background radiation at Yucca 
Mountain. It will result in a dose 20 times larger than the amount 
allowed by standards applied to other waste dumps. DOE falsely asserts 
that since the national average for background radiation is 360 
millirem per year, that a 300 millirem increase per year is not an 
issue. However, science dictates that additional exposure to radiation 
causes additional cancer. Therefore, any increase, no matter how small, 
in background levels of radiation is intolerable, and doubling the 
local exposure is absolutely immoral.
    Unfortunately, DOE and the nuclear industry will not admit that the 
Yucca Mountain site is inappropriate. And, the nuclear industry 
continues to try to convince lawmakers to reduce the protective 
standards for radiation exposure. By legislating a weaker level of 
protection than recommended by the National Academy of Sciences, the 
bill establishes a standard that fails to protect children, pregnant 
women and other vulnerable populations.
    Fifth, the bill does further damage by preempting federal, state 
and local laws that are more protective than H.R. 45. The overly broad 
language ensures that local and state governments cannot require extra 
protections for their citizens. These laws are preempted automatically 
if they pose any obstacle to implementing the law. It is truly amazing 
that in Congress whose leaders claim to revere the 10th Amendment and 
states rights, legislation such as this dealing literally with life and 
death, contains some of the most extreme preemption of state law ever 
proposed. Instead of setting a national floor for safety that states 
can enhance, it prohibits states from being able to protect its 
citizens.
    The bill also severely curtails the National Environmental 
Protection Act (NEPA), one of the most important environmental laws 
ever enacted. This means that a legitimate review of environmental 
issues at the Yucca Mountain site can not take place today or ever. It 
excludes from any consideration of several key factors, including the 
need for the facility and alternatives to the site. Thus without any 
crisis or justification, this extremely hazardous facility would be 
exempted from the basic provisions for environmental review that are 
required for federal actions that have significant impacts on the 
environment.
    Not only are all federal laws preempted if they are inconsistent 
with H.R. 45, it would also prohibit EPA from setting a radiation 
protection standard. As mentioned above, a ground water standard is 
absolutely essential to protecting public health and safety. We 
challenge the idea that Congress has more scientific experience in 
setting radiation standards than EPA.
    Sixth, H.R. 45 completely ignores new scientific evidence about 
earthquakes. In January of 1999, hundreds of earthquakes struck the 
Nevada Test Site near the proposed interim storage facility, the 
largest of which registered a magnitude of 4.7 on the Richter scale. 
From 1976 to 1996, 621 earthquakes with a magnitude of 2.5 or greater 
occurred within 50 miles of Yucca Mountain. In 1992, a 5.6 magnitude 
earthquake struck on a previously unmapped fault, 8 miles from Yucca 
Mountain, causing hundreds of thousands of dollars in damages to a 
local DOE building.
    The threat is highlighted in a report in the March 27, 1998 issue 
of Science. Scientists from Harvard and the California Institute of 
Technology, using a network of satellites, recalculated the geological 
expansion rate at Yucca Mountain. They found the rate of expansion to 
be 10 times greater than DOE assumptions, thus raising significant 
questions about the frequency of large earthquakes and volcanic 
activity at Yucca Mountain. So much for safe disposition of high-level 
nuclear waste than delivers a lethal dose of radiation in 3 minutes.
    Seventh, the bill forces taxpayers, as well as the industry, to pay 
for the ever-increasing cost of disposition. An independent cost 
assessment from February 1998, reviewed by KPMG Peat Marwick, warns of 
the ever-widening shortfall in funding for the site. The $25 billion 
shortfall is a result of the escalating costs for the permanent 
repository and the additional costs of building the proposed interim 
storage facility. A more recent report by Synapse Energy, Stranded 
Nuclear Waste, projects that the shortfall could rise to $45 billion if 
nuclear power plant retirement continues as a result of regulation.
    The situation surrounding these plants strongly suggest that the 
fees ultimately placed on ratepayers will have to be increased to 
prevent taxpayers from further subsidizing nuclear waste disposition. 
The funding mechanism in H.R. 45 will cause an even greater shortfall 
than the mechanism in the nuclear waste legislation from the 105th 
Congress, H.R. 1270. It further reduces the amount of money the 
industry must pay for the nuclear waste program, while increasing the 
cost of it. This is unacceptable.
    Eighth, H.R. 45 is likely to cost taxpayers more money from 
litigation because it continues the trend in nuclear waste policy of 
setting irrational deadlines. The on-going litigation against DOE by 
the nuclear utilities is the result of the foolish deadlines 
established in the Nuclear Waste Policy Act of 1982. Several federal 
agencies testified that the 1998 deadline was unreasonably short. The 
industry lobbied for the deadlines and they are using DOE's failure to 
meet them as a reason to sue.
    The utility estimates for potential damages are outrageous and the 
courts have yet to assign any damage amounts. In response to the 
litigation, DOE is making a good faith effort to settle the issues 
raised by the utilities by providing a cash settlement. While we do not 
endorse this payment, we question the motivations of the utilities in 
rejecting it. It seems that they wish to keep the lawsuit going because 
it serves their political agenda.
    The industry's claim that the on-going litigation is proof that 
H.R. 45 is necessary is completely false. If passed into law, the 
legislation will create the same problem that previous nuclear waste 
legislation has created--more impractical deadlines and lawsuits. This 
has been a costly mistake in the past and it should not be a mistake 
that is repeated. If passed, H.R. 45 may result in more lawsuits 
against the government that must be paid for by taxpayer.
    In conclusion, H.R. 45 is bad public policy. Rushing to move waste 
to an interim storage facility in Nevada violates the public's trust 
that their health, safety and pocketbooks will be protected by their 
Representatives and the Department of Energy. Rather than solving the 
nuclear waste problem, H.R. 45 will worsen it. The scientific evidence 
is mounting that Yucca Mountain cannot be the site for the permanent 
storage of high-level waste. As a result of the evidence, 219 
environmental organizations petitioned the DOE to disqualify Yucca 
Mountain. The petition established both legal and scientific grounds 
for the disqualification. The environmental community is united in 
opposing H.R. 45, not only because of the inherent dangers I have 
described today, but because the concept of ``interim'' storage is 
really a charade.
    We see only two options if the legislation passes and waste is 
shipped to an interim storage facility at the Yucca Mountain site. The 
first scenario is that under severe industry pressure the so-called 
interim storage facility would in fact become permanent, without any of 
the necessary safeguards. The other possibility is that the waste would 
have to be moved once again, needlessly increasing the risks of crashes 
involving radioactive waste.
    We urge members of this Committee to carefully consider the full 
and real implications of H.R. 45. The nuclear industry is extremely 
powerful and it has used its political and financial muscle to force 
bad public policy decisions in the past. In the 1998 election cycle, 
Members of the House of Representatives have accepted $8.7 million in 
PAC contributions from the lobbying arm of the nuclear industry, the 
Nuclear Energy Institute and its members. In addition, members of NEI 
contributed over $3.7 million in soft money contributions to the 
national political parties in the 1998 election cycle. We hope that the 
Members of this Subcommittee on Energy and Power can look past the 
money and reject H.R 45 as ill-conceived and dangerous legislation.

    Mr. Stearns. I thank you. And I thank all of you. I just 
have a few questions here.
    I think, Ms. Claybrook, you finished up. Maybe let me just 
ask you--because you are giving a different point of view; I 
respect your point of view and I think it is very healthy to 
have your point of view--your argument basically is to keep it 
at the sites?
    Ms. Claybrook. That's correct.
    Mr. Stearns. It has been established they are safe at the 
sites. What happens if we shut down nuclear power in some of 
these areas where you actually shut it down? What would you 
suggest we do with the waste material from these nuclear power 
plants if the plants are actually shut down?
    Ms. Claybrook. Well, there is a long decommissioning 
process, of course, for these plants, Mr. Chairman, and so 
there would be many years before these plants are just 
abandoned. It is not like you are going to shut down a coal 
plant, and you shut it down, there are no consequences and you 
can walk away from it.
    Mr. Stearns. Is there anyone else that would like to 
comment on that?
    Mr. Joos. If I may, we have shut down a nuclear power 
plant. We are in the process of decommissioning the plant. Our 
construction, or destruction schedule, if you will, will allow 
that facility to be returned to green-field by the year 2003 if 
we can ship the fuel. If we can't ship the fuel, that fuel 
could sit in that site for 20, 30 years. Who knows how long it 
is going to take?
    Mr. Stearns. Ms. Claybrook, your testimony asserts that 
there is no reason to accelerate acceptance of nuclear waste by 
DOE because, ``No emergency exists that requires the immediate 
removal of nuclear waste from its current storage facilities.'' 
Are you aware that three Federal courts have found DOE had an 
unconditional obligation to begin acceptance on January 31 last 
year? And do you believe Federal agencies should ignore these 
legal obligations? I guess your question would be, how do you 
suggest that DOE be in compliance?
    Ms. Claybrook. Well, first, in terms of what I said about 
emergency, I meant practical, there is no practical emergency. 
In terms of the deadlines, we urged the Congress in 1982 not to 
set deadlines that could not be met. We have always urged that, 
because there is a science behind these issues.
    When you set an absolute deadline for something and it 
doesn't conform to the science or the capacity to achieve that 
science, then you are not going to be able to meet the 
deadlines. So we believe that what this bill does is, it just 
adds more of those and more complexity facing the executive 
branch of the government.
    It is very well for the Congress to say, we want this done 
now, and we want to get it done by X date, and pick a number 
out of the hat; but that does not result in rational activity 
by the executive branch. The executive branch--it would be 
irrational for them to do something that is dangerous. They 
don't have the authority to do that either.
    Mr. Stearns. Some members of this committee have talked 
about utilities suing for the money and so forth. I guess the 
question would be for Mr. Koppendrayer.
    Which would you prefer, recovery of damages or performance? 
Would you rather have money or see DOE begin acceptance? That 
is sort of a softball question for you.
    Mr. Koppendrayer. Obviously, to begin movement of the 
waste, I think what we have to recognize here, Mr. Chair and 
members, is that the ratepayer has paid on a contract to have 
this waste stored, to move this waste from the plant so that 
the plant can continue to operate. In Minnesota, we are going 
to have--if it is not moved, we are going to have to 
prematurely shut down the plant. Then the ratepayer, while its 
money is here--their money is sitting here, has to pay again to 
build another plant and continue to pay again to store the 
waste at the site of the shut-down plant. So they are going to 
be asked to pay three times.
    Mr. Stearns. Is there anyone else that would like to 
answer?
    Ms. Claybrook. Mr. Chairman, I would just like to point out 
that the court did not order performance. You do know that. The 
court, in fact, very specifically put monetary payment, but did 
not order specific performance by the Federal Government. That 
is, they did not require the waste be moved.
    Mr. Stearns. Mr. Strand.
    Mr. Strand. Obviously, I would answer the question the same 
way that Commissioner Koppendrayer did, but I would also like 
to say, there was some discussion, I think, with the second 
panel in particular, that if in fact damages were awarded, 
basically out of what fund or what pocket would those damages 
be paid. I would suggest that to the extent it actually comes 
out of the fund, that would be the ultimate insult to the 
ratepayer who basically had that money taken out basically to 
pay for the nuclear waste to be moved; and then if in fact it 
comes out of that very fund, I think that would be the worst 
possible situation.
    We obviously want the problem taken care of. We really 
don't want--we are not interested in this for the damages 
obviously. We want the nuclear waste basically off of Lake 
Michigan in a site hopefully that is a little more conducive to 
where it should be.
    Mr. Stearns. I have finished my questions. Just as a 
comment, and maybe this is directed toward Ms. Claybrook, we 
had a little graph here, I don't know if you saw it, where it 
talked about levels of radiation, whether you had a chest x-
ray, whatever. It turns out that a chest x-ray is relative to 
10, but us walking around the halls of Congress here is like, 
if I recollect, it was over 100. So every day Mr. Hall and I 
are getting this radiation from all this concrete and material 
here, without even realizing it, day in and day out, it is at 
least 10 to 30 times the level we will get if it is an x-ray.
    So when you look at the different areas for radiation doses 
in perspective, it makes it look like what they are trying to 
do in Yucca Mountain is pretty small. I just bring that to your 
attention to show you the relative insignificance of the amount 
of radiation to compare with what Mr. Hall and I are seeing 
every day around here.
    Ms. Claybrook. You do have a dangerous occupation, Mr. 
Chairman.
    Mr. Stearns. In more ways than one.
    Ms. Claybrook. I recognize that. Particularly traveling on 
aircraft, in addition, adds to it. The question is, should 
there be additional radiation that you are exposed to and 
particularly radiation that you don't choose to be exposed to. 
I mean, these are----
    Mr. Stearns. But this is so small relative to what he and I 
are getting every day. If your argument is, it is not safe----
    Ms. Claybrook. It is additive. The more you get, the worse 
it is. Particularly if you drink it. It is one thing in the air 
and it is another thing if you consume it. So if it goes into 
the groundwater and you drink it, that is even more dangerous. 
And so I think that what you are talking about is--it is like 
having someone who smokes and someone who doesn't smoke. 
Someone who smokes takes that risk. If they decide they are 
going to fly on an aircraft, decide they are going to smoke, 
they are going to take that risk. But if you don't smoke, why 
should you be exposed to it?
    That is the argument that I would say to you here. Why 
should someone who lives in Nevada be exposed to this extra?
    Mr. Stearns. Joan, hypothetically if I can show you 
categorically that it is extremely safe for a long period of 
time at Yucca Mountain, would you change your mind?
    Ms. Claybrook. What is a long period of time? This waste is 
highly toxic for 250,000 years, Mr. Chairman, and so we can't 
do anything about that now.
    Mr. Stearns. Let's say if it were a thousand years.
    Ms. Claybrook. A thousand. What kind of legacy are we 
leaving to our children?
    Mr. Stearns. But you understand by then we are going to 
understand how to take this waste and reconvert it into 
something new. Look at the computer industry, what has happened 
there. You know that there is going to be a technological 
innovation here, that this waste material is going to be made 
useful in a thousand years.
    Ms. Claybrook. There are two different issues, Mr. 
Chairman. One issue is this bill and whether we should lower 
our standards as this bill does; whether we should reduce the 
fees on the industry, which this bill does; whether we should 
have interim storage and have highly toxic wastes on our 
highways. And I happen to be an expert in highway safety, so I 
can tell you much more about that after this meeting if you 
would like.
    And so that is what this bill does. That is one question. 
We oppose this bill for all the reasons that I have stated.
    The other question is, we are now stuck with this waste. We 
urged that this waste never be created, but it was. Now the 
nuclear industry wants to get rid of it. They say it is the 
Federal Government's problem, this nuclear waste. They have 
made profits on it, but it is the Federal Government's problem. 
And so we can't do anything about that now.
    We now have the nuclear waste, and surely I would be 
extraordinarily happy if we had a technological solution that 
was developed in the future, and God knows, I hope we do.
    Mr. Stearns. We will.
    Ms. Claybrook. Because if we don't, what a legacy to leave 
to not only one generation but 30 generations behind us.
    Mr. Stearns. I think I am all finished and we will let the 
distinguished colleague, Mr. Hall, proceed.
    Mr. Hall. That may be another reason for term limits.
    Mr. Stearns. We can kill ourselves with radiation 
treatment.
    Mr. Hall. Ms. Claybrook, I would like to ask you a question 
or two.
    You are opposed to H.R. 45, are you not?
    Ms. Claybrook. That is correct.
    Mr. Hall. I presume that from your testimony.
    Ms. Claybrook. Right.
    Mr. Hall. Your organization has been opposed to it from the 
time it was introduced?
    Ms. Claybrook. Right.
    Mr. Hall. You were opposed to the other sites that they 
were looking at?
    Ms. Claybrook. To the other what?
    Mr. Hall. The eastern site that was under consideration, 
you opposed that?
    Ms. Claybrook. For temporary storage?
    Mr. Hall. Yes.
    Ms. Claybrook. Yes.
    Mr. Hall. Or for permanent storage?
    Ms. Claybrook. Well, at some point, you have to have 
permanent storage of this, of this waste that we disapprove of.
    Mr. Hall. On temporary storage, let me ask you about that.
    Your organization supports suits against onsite storage, do 
you not?
    Ms. Claybrook. Supports suits by whom?
    Mr. Hall. Well, you would know that better than I do. How 
about in Congressman Saxton's area, Oyster Creek. Are you not 
supporting that suit?
    Ms. Claybrook. Not that I know of.
    Mr. Hall. Not funding it?
    Ms. Claybrook. Oh, no. No, no, absolutely not.
    Mr. Hall. You are opposed to interim storage?
    Ms. Claybrook. We are opposed to interim storage as it has 
been proposed. We are.
    Mr. Hall. But you don't know anything about the Oyster 
Creek suit that was filed?
    Ms. Claybrook. No. Sometimes our organization does things I 
don't know about, but not very often. In this case I am pretty 
sure that that is not true. I will submit something different 
for the record if that is true, but I don't think so.
    Mr. Hall. I am glad to know that because my next question 
would be, what are you for, what do you favor in the form of 
storage? And I guess maybe I could ask a question that would 
preclude my going any further with you.
    You are opposed to nuclear energy?
    Ms. Claybrook. Oh, absolutely. We have been opposed to 
nuclear energy. We have been in favor of solar energy and the 
cleanest and safest energy sources possible. When the Congress 
made a decision in 1953 to put all these resources, billions 
and billions and billions of dollars, into nuclear energy 
rather than into solar energy, I think that Congress made a 
huge mistake; and we are stuck with it.
    Mr. Hall. So there is not anything I could say or this 
committee could say or this Congress could say that would make 
you for or favor nuclear energy, the pursuit of further nuclear 
energy?
    Ms. Claybrook. Absolutely not.
    Mr. Hall. Even as an alternative to the sources of energy 
that we have that might preclude a war, the signs that say, 
``No nukes could say no wars,'' if we could solve the energy 
crisis?
    Ms. Claybrook. I think if we put the same resources into 
renewable energy and into conservation, then we would never 
have to have a war over energy, Mr. Hall; and I would love to 
have a chance to come talk to you about that.
    Mr. Hall. Well, we are together in one thing in that we are 
opposed to wars, right?
    Ms. Claybrook. We are both opposed to wars.
    Mr. Hall. So we got somewhere. I didn't just totally lose 
us.
    I could be ugly and ask you about whether or not you 
supported the Brady bill.
    Ms. Claybrook. We were not involved in that, but I would 
support the Brady bill.
    Mr. Hall. Was that not an infringement by the Federal 
Government onto the States? Shouldn't the States decide who can 
carry a gun and who cannot, really and truly?
    Ms. Claybrook. I happen to be in favor of a lot of Federal 
safety and health standards. I believe that that is where 
Federal--health and safety standards, where it is appropriate 
for the Federal Government to have some national safety 
programs. So I have very much been in favor of that.
    But I have been amazed to see this Congress particularly be 
in favor of preempting States in so many areas where I thought 
that wouldn't ever happen with this particular Congress.
    Mr. Hall. I don't agree with what you say, but I certainly 
agree with the way you say it. You represent your folks very 
well.
    Mr. Chairman, Mr. Dingell had a question for Mr. Joos, but 
he had a schedule conflict and couldn't stay for the panel. I 
know he would like to be here.
    I would like permission for him to submit a question for 
Mr. Joos for the record and ask Mr. Joos to answer that 
question.
    Mr. Stearns. Surely. Go ahead.
    Mr. Hall. And, Mr. Joos, I might ask you some questions 
about the standards and the differences, and those are things 
we have to work out.
    I think--was it Mr. Strand or Mr. Koppendrayer that said 
that it was up to the Congress to do something? Or both of you? 
I guess I would ask you, what can we do? We have begged and 
pleaded and cajoled. Even in this bill we set a standard in the 
bill that is in excess of the EPA or NRC thrust. We did that 
simply because no one else had and we had to have it.
    But we are really seeking help in how we can pass this bill 
and make those that ought to comply and honor the agreement 
that they had with you all, when you first started putting your 
money up, carry out their end of it.
    Tell me how we do that.
    Mr. Strand. Basically, Congressman, what we are asking you 
to do, No. 1, is pass the bill.
    Mr. Hall. I am for that.
    Mr. Strand. We certainly appreciate your efforts to try and 
get a bipartisan type of bill, particularly that the 
administration hopefully can live with if there is such an 
animal.
    The second thing is, to the extent you do pass something 
and it becomes law, we are of course asking you to exercise 
oversight over that, because we tend to think that vigilant 
oversight is going to be necessary to make sure that the word 
of the Congress is carried forth.
    Mr. Hall. Mr. Joos, would you like to discuss the standards 
that are needed and the present status of them and where we 
are?
    Mr. Joos. There was an earlier discussion----
    Mr. Hall. Are you familiar with the standard we set in the 
bill?
    Mr. Joos. Yes, generally speaking. There was an earlier 
discussion with the EPA and the NRC representatives.
    Mr. Hall. We set those standards to try to get Ms. 
Claybrook for the bill, but I am going to mark her doubtful on 
this thing.
    Mr. Joos. I think as you have all correctly pointed out, 
the 100 millirem standard that is incorporated into the bill is 
a fraction of what normal background radiation is, and the 
normal background varies widely across this country and as you 
pointed out in these buildings can be significantly higher than 
that.
    We think it is a reasonable standard. It is a standard that 
is consistent with international standards, and it is 
consistent with the NRC's own policies with regard to total 
radiation exposure to individuals from all nonnatural 
background areas. The NRC, I think, acknowledged that they have 
somewhat arbitrarily chosen 25 percent of that standard, or a 
25 millirem standard, as their own recommendation, leaving 75 
percent of that remaining nonnatural radiation impact to other 
sources.
    I would frankly argue that that is probably overly 
conservative, given the location of this facility and the 
likelihood of any significant other sources contributing.
    But I will say this: We have dealt with the Nuclear 
Regulatory Commission for many, many years. It is an 
independent agency, a bipartisan agency, if you will, and it is 
one that has a very good record of basing their regulations on 
sound science; and for that reason, we strongly endorse the 
idea of moving the responsibility for these standard settings 
to the Nuclear Regulatory Commission. And in addition to 
establishing an initial standard of 100 millirem in this bill, 
it also provides for the NRC to be able to reduce that standard 
if they feel it is appropriate for health and safety purposes 
based on their scientific evaluation.
    Mr. Hall. Do you think that there are a lot of utilities in 
the same difficult position that you have experienced, and do 
you believe that the lack of a solution to the waste problem is 
driving a lot of these utilities' decisions about whether or 
not to keep their nuclear units open?
    Mr. Joos. We are facing significant investment, as are 
others. We have been able to solve the problem through 
significant investment, and as I have indicated, are going to 
end up storing nuclear fuel on our sites in dry casks for a 
period of years. We are not alone in that regard, although Mr. 
Abdoo is facing a situation where he possibly won't be able to 
do that for various local reasons and may be forced to shut 
those facilities down early.
    I had mentioned to you earlier, 25 percent of the Nation's 
nuclear plants have already exceeded their original design 
storage capability, and within the next 10 years, 80 percent of 
the nuclear plants will have. So it is a critical issue.
    Ms. Claybrook talked about the lack of an emergency. I 
believe there is more than a legal emergency here. We are 
facing shortages of electric supply in this country. There is a 
big debate, as you know, about clean air standards that may 
force a lot of fossil units to have significant outages over 
the next decade, and quite frankly, I think it is a real 
emergency that we solve this problem so that we don't run into 
a shortage of electric supply in this country, and we don't 
have renewable solutions in the near term of any sort that will 
replace nuclear power.
    Mr. Hall. I don't know how my time is, but I think Mr. 
Koppendrayer has something he wants to offer.
    Mr. Koppendrayer. You asked a while ago if I said 
something. I wanted to respond a little bit.
    Having been a legislator and now being a regulator, we 
dealt with this nuclear issue at both--I have at both levels. 
We have dealt with the environmental concerns. Right now, as a 
regulator, if we listen predominantly to the environmental 
concern, we are told on the one hand reduce emissions, 
CO<INF>2</INF> being a greenhouse gas that is of most concern, 
reduce that; and on the other hand, we are going to be forced 
to shut down 20 percent of our generation.
    You just can't do both. It doesn't work. Even in Minnesota, 
we mandated, when I was in the legislature, 400 megawatts of 
wind. That will be the biggest wind field in the United States 
when it is complete; there are 200 megawatts, complete. The 
other day, when I was watching the computer, that was putting 
out 28 megawatts of power, because the wind wasn't blowing.
    So we have got ourselves in a Catch 22. I would just urge 
the Congressman to let common sense prevail if we want to keep 
the lights on.
    Mr. Hall. When you say, it is up to Congress, we want to 
pass a bill and we have asked for input from everyone that is 
both opposed to the bill and supports the bill. I think if you 
mean that it is up to Congress to keep oversight on it, as it 
goes and after we have passed the bill, I certainly agree with 
you on that, but I don't know of anything Congress can do until 
we get an NRC license and they are awaiting impact statements.
    It is just like if a 400-pound guy falls down, you want to 
help him up, you just don't know where to take hold. We are 
trying to figure out a way here to get this thing off the 
ground.
    I would say to Ms. Claybrook that I also use the States' 
rights argument a lot of times. When I don't agree with 
something, I go backways; I go both ways.
    Ms. Claybrook. I thought it was your primary argument.
    Mr. Hall. You are very versatile. We all try to do that up 
here. I thank you and I yield back my time.
    Mr. Stearns. I thank my colleague.
    Next, Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman.
    I was interested, Mr. Abdoo, in your initial comments and 
the fact that you have a facility that is in danger of closing 
because of the lack of the Federal Government's action. Talk me 
through or let me see if I have got it.
    You are permitted to have so much onsite. If you go past 
that capacity, then you are going to be forced to close; is 
that correct?
    Mr. Abdoo. Yes, sir. We are pursuing every option, but when 
we had to go to the State to get permission to get additional 
storage onsite, it was a long, drawn-out process with lots of 
legal challenges. The State's argument is, you paid once and 
why should the residents of Wisconsin pay twice?
    Where we come from, a deal is a deal. We wrote a check, 
they cashed it, they have an obligation to take the waste. And 
so we are afraid that we are unlikely to convince the State of 
Wisconsin to allow additional storage onsite. At the same time, 
we see the same Federal Government impose additional 
NO<INF>X</INF> restrictions, we have got the global warming 
business. We operate the largest green power program in the 
United States of America. Two of the seven U.S. joint 
implementation projects are Wisconsin Electric's, and we can't 
get our government to live up to the agreement that we made. So 
it is very frustrating.
    Mr. Shimkus. Is Wisconsin a high- or low-cost State?
    Mr. Abdoo. Very low.
    Mr. Shimkus. That is what I thought.
    I guess the question I want to follow up with, so you 
haven't moved, the State of Wisconsin hasn't moved on any 
energy dereg bill at this time?
    Mr. Abdoo. None.
    Mr. Shimkus. So you are still covered by regional 
boundaries to provide service?
    Mr. Abdoo. Yes, sir.
    Mr. Shimkus. What is going to happen to the ratepayers when 
you close that facility, based upon the ability to transport 
and meet the standards of Wisconsin law?
    Mr. Abdoo. Costs will go up significantly to the customers 
of Wisconsin. Even if you replace it with combined cycle 
natural gas, which is pretty cheap these days, their costs will 
go up, and the air they breathe will be dirtier than it is with 
the plant in operation.
    Mr. Shimkus. I am glad you mentioned that.
    For my final question, I want to ask Mr. Strand, Mr. Joos 
and Mr. Abdoo, under the proposed Kyoto Accord, how does that 
affect the nuclear industry?
    Mr. Strand. Well, there are a number of folks that come 
down in different ways in how it would affect nuclear energy. 
There are certainly some that have suggested that if we are to 
meet these specific recommendations that we are signing there, 
that we are going to have to rely less and less on fossil 
fuels; if that means we are going to have to rely on some 
alternate source, whether that be nuclear renewable, combined 
cycle gas, whatever, but certainly there will have to be less 
reliance on fossil fuels in the country. What the alternative 
is going to be is, of course, a policy decision and in some 
cases will be a market-based decision.
    Mr. Shimkus. Mr. Joos.
    Mr. Joos. I think Mr. Strand answered that question pretty 
well. Some have advocated that the nuclear industry, nuclear 
plants in general, should get specific credits for not emitting 
greenhouse gases. I think the bottom line is that oil, gas, 
coal, all fossil fuels when you burn them generate carbon 
dioxide which is the greenhouse gas we talked about. The 
solution to that problem is to burn less fossil fuels and that 
certainly advocates that you need nuclear power to fill the 
portfolio.
    Mr. Abdoo. My answer, sir, is that it will be virtually 
impossible to make significant reductions in greenhouse gas 
emissions if the nuclear fleet is shut down as a result of the 
inability of the Federal Government to live up to its 
obligation.
    Mr. Shimkus. Thank you, and I yield back.
    Mr. Stearns. I thank my colleague. The gentleman from 
Massachusetts, Mr. Markey.
    Mr. Markey. Thank you, Mr. Chairman, very much. You know, 
you have got a little bit of a problem here because 
notwithstanding any impact which roving bands of antinuclear 
troubadours strumming on their guitars might wish that they had 
upon the fate of the nuclear industry, the reality is that its 
demise was decided by Wall Street and Adam Smith looking at it 
as a generator of electricity per kilowatt hour and balancing 
it against others. And the truth is that one of the main 
reasons why the nuclear industry died beyond Chernobyl and 
Three Mile Island was that a lot of very persuasive people from 
Texas convinced people that cheap and clean natural gas was a 
better way of generating electricity. And those Texans made a 
very powerful argument, partnering with Canadians and others, 
to make that switch, and we have moved in that direction.
    And as we debate the deregulation of the electric industry 
across the United States, of course, we have a phrase 
``stranded investment,'' which all of the utility executives 
use. Now, they use the words ``stranded investment'' because 
they don't want to say the words ``nuclear power plants,'' and 
they want to get bailed out from those decisions, and they want 
consumers to pick up the tab for their ill-considered judgments 
20 years ago, 15 years ago. But they hide behind the phrase 
``stranded investment'' because they don't want to say the 
words ``nuclear power plant.''
    The reality is that there won't be any more nuclear power 
plants in the United States, not because of any antinuclear 
movement, but because consumers and citizens don't want them 
anymore and there isn't a utility executive I know in the 
United States that is actually contemplating ordering one. I 
know that once they announced that they were going to be 
ordering one, that that might have a severe impact on their 
bond rating and their popularity. And I would be interested in 
finding out who will be the first utility executive to announce 
that they are interested in building one, but I haven't seen 
one in the last 10 years, to be honest with you.
    But it has nothing to do with anything other than the free 
market at work. And I am a big advocate of the free market to 
the extent to which, like Adam Smith, I hate monopolies and 
most of these decisions were made by monopolies.
    As you move to a deregulated, demonopolized marketplace, 
you are much less likely to have monopolists making decisions 
that they know are going to be supported by local PUCs who are 
going to allow for this cost-plus electricity pricing to be 
passed on to consumers. You are just not going to have that 
environment, and that is why we worked so hard to pass that 
demonopolization, deregulation environment and created it 
nationally and locally.
    So my question is this for Ms. Claybrook: You note on page 
7 that H.R. 45 may force the taxpayers to pick up an ever-
widening shortfall in the nuclear waste fund due to early 
retirements of reactors, nuclear reactors at the top of the 
list, and increased costs of paying for both permanent 
repository and interim storage. Do you think it is fair that 
ratepayers are going to have to shoulder that burden?
    Ms. Claybrook. We have been talking about commitments today 
and we have been talking about little commitments, but I would 
certainly say that the first commitment that was made in the 
nuclear power era was the commitment that it is too cheap to 
meter, and I think that is what sold nuclear power to a lot of 
people in the United States. And, in fact, nuclear power costs 
have increased dramatically, and in fact no plant has been 
ordered since 1974. And it has been the marketplace that has 
done that.
    The taxpayer, as you know, often--every one of you on this 
panel knows that when there are huge disasters, whether it is a 
bank that fails that is huge, or whether it is nuclear power 
that we don't know how to handle in terms of its waste, that 
the taxpayer does get stuck with the bill. And of course I 
don't think it is fair, particularly because of the way nuclear 
power was first sold to the American public.
    Mr. Markey. Thank you, Mr. Chairman.
    Mr. Stearns. I thank my colleague. And, Mr. Barton, would 
you like 5 minutes?
    Mr. Barton. This should be the last 5 minutes. First, I 
want to commend this panel for being here. I apologize. I had a 
meeting with the chairman of the full committee on this issue 
about whether we could move to markup and if so, when so. Which 
I said obviously I hadn't heard everybody on this panel but I 
felt like based on the previous two panels, that it is quite 
possible within the next month that we could work out some of 
the technical difficulties and perhaps have a markup early next 
month on this piece of legislation.
    I have not been in the Congress quite as long as the 
gentleman from Massachusetts who just spoke, but my view of the 
world is somewhat different than his and I would argue that 
nuclear power is here to stay. If you go outside the 
Continental United States and certainly in western Europe and 
Japan, it is their power of choice today. And while the 
gentlelady from Public Citizen has rightly pointed out we 
haven't ordered a nuclear power plant in this country since 
1974, it is primarily because everybody's estimates of the cost 
of alternative sources turned out to be radically wrong in the 
right direction.
    When many of the nuclear power plants operating today were 
first decided to go online, we were projecting, $50, $60 barrel 
oil and the spot market price for Texas Western media crude is 
about $11.63 cents today. In the late 1970's natural gas was 
selling for as high on the spot market for $14 in MCF. Today it 
is below $2.
    So we have been fortunate that our crude oil and our 
natural gas supplies and their cost, the supply has gone up and 
the cost has gone down, which doesn't say in the next 20, 30 
years that might reverse. And what is amazing is not the cost 
of nuclear power is so high, it is amazing to me that it is as 
low as it is, given all the regulatory burdens that have been 
put on it that are not on the energy sources.
    I can take you to Comanche Peak near my congressional 
district and there hasn't been an earthquake there in 25,000 
years, and yet the support beams are tripled, backed up. And I 
could take you to a coal-fired plant 50 miles away, that they 
don't have any of that.
    So, you know, a coal-fired plant in Texas cost, you know, a 
fifth of the cost of the nuclear plant. So we can argue about 
what happened in the past, but the bill before us today is what 
do we do about the waste that has been generated. And everybody 
understands that that waste is there. The law requires the 
Federal Government to take receipt of it. It requires that it 
begin to take receipt by last year. It hadn't done that, and so 
the Upton-Towns bill is to try to expedite the process so that 
on an interim basis, we get the waste centralized at Yucca 
Mountain, and then as a permanent repository process goes 
forward, we try to help expedite that and taking the concerns 
the DOE had about funding and some of those issues.
    So I am much more optimistic about the chances of passage 
of this bill, and long term I am much more optimistic about the 
chances for nuclear power, not just in the world but the United 
States.
    Mr. Hall. Would the gentleman yield?
    Mr. Barton. I don't really have a question.
    Mr. Hall. I will help you out there.
    Mr. Barton. I yield to you.
    Mr. Hall. Do you believe that the Congress could have done 
a better job of requiring more standardization of the 
construction of nuclear plants?
    Mr. Barton. I think a better job could have been done. I am 
not sure the Congress is the appropriate agent to require that.
    Mr. Hall. If they needed to be enticed, to put a carrot out 
there to get them not to build monuments to their idea of what 
it ought to be.
    Mr. Barton. They didn't need to reinvent the wheel in every 
new power plant.
    Mr. Hall. Had they just followed the--France lives off the 
nuke, England lives off the nuke in the North State 
successfully. I don't know that they have this big battle 
against nuclear energy in either of those countries. But 
obviously we have done--we have passed legislation that tried 
to bring about standardization and I think that is going to be 
helpful but, you know, you and I are in an unusual situation in 
that we represent a State that produces fossil fuels and has--
we're oil and gas oriented. We have the oil patch. Part of it 
is in your district. Part of it in mine.
    I think people need to remember fossil fuels fill the Big 
Inch pipelines that went during World War II and the Big Inch 
pipelines that went up into the Lend-Lease destroyers, that we 
kept the people fighting the battle against Hitler and that was 
in vogue then. Oil and gas was in vogue then.
    I think it is kind of popular to say you are opposed to any 
type of nuclear energy. I go to the schools and when I start 
out to make a nuclear energy speech, ``How many of you for 
foreign nuclear energy? `` none of them hold up their hands. 
And then I talk to them about nuclear energy as an alternate 
source or solar or any other alternate source might prevent a 
war. And now, How many of you are for nuclear energy? And most 
of them hold up their hands and just the teachers are miffed.
    I just think that we have to be careful and I think it 
certainly makes sense that we try to have a design that is 
conducive to safety and nobody can be against that. But I think 
we have to have an alternate source if we are going away from 
fossil fuels. I am a fossil fuels guy. I am their captive. They 
are in my district. I have the oil patch and they are having a 
hard time now. A lot of people see them as driving 
Continentals. Well, they are but they are 1979 models. We are 
having a hard time down there.
    But I respect this group here who are pushing and putting 
your best foot forward, and I respect Mrs. Claybrook; and as I 
have said about Mr. Markey and me voting differently, we need 
all types on every committee, and then maybe you come together 
and work something out.
    Just like the deregulation of electricity and stranded 
cost. Of course we are going to pay stranded cost. Either that 
or we are going to have a bonanza for all the lawyers in the 
country. They are going to go straight to the courthouse and 
get their stranded cost, because they spend them in return for 
gracious living that they provided pursuant to a contract that 
they had with the government. Now, there is some that were 
foolishly purchased perhaps, but we can ferret those out.
    We absolutely have to do something about the provisions of 
H.R. 45. And once again, the chairman has begged for 
information on it, begged for your differences, how we can 
shore it up and make a good bill out of it. And for those of 
you who just plain are against it, I respect you. Stand out 
there and throw rocks at it, but I think we really need to get 
this bill. We need to get it passed. We need to get it behind 
us and get on about our business. I yield back.
    Mr. Barton. Before the chairman recesses the hearing, 
Congressman Hall and Congressman Dingell have asked myself and 
Chairman Bliley to either hold one more hearing with Secretary 
Richardson or perhaps do a meeting with Secretary Richardson. 
It is a meeting of those four people, and we are going to try 
to honor that request.
    I do not think we will have another full hearing with 
outside witnesses. If we have another hearing on this issue, it 
will be with Secretary Richardson. And as I said earlier, we do 
plan to try to consider a subcommittee markup within the next 
month. So when we send the written questions to this panel, 
please send them back as soon as possible. Obviously if we need 
to contact, telephone a person at the staff level, we will do 
that because we are going to try to move this legislation in 
the very near future. With that, I would turn it over to the 
vice chairman.
    Mr. Stearns. I thank Mr. Barton. Before we adjourn, by 
unanimous consent the committee will allow all members to 
submit additional questions for the record, either to the 
panelists or for the record, and hopefully they will be in 
within 5 days. I again want to thank all of you, and the 
committee stands adjourned.
    [Whereupon, at 3:48 p.m., the subcommittee was adjourned.]
    [The following material was received for the record:]
 Prepared Statement of Cynthia Hilton, Executive Director, Association 
               of Waste Hazardous Materials Transporters
    The Association of Waste Hazardous Materials Transporters (AWHMT) 
represents companies that transport, by truck and rail, waste hazardous 
materials, including industrial, radioactive and hazardous wastes, in 
North America. The Association is a not-for-profit organization that 
promotes professionalism and performance standards that minimize risks 
to the environment, public health and safety; develops educational 
programs to expand public awareness about the industry; and contr