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Copyright 1999 Federal News Service, Inc.  
Federal News Service



LENGTH: 2730 words



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.
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. 971064 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?

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 protect/on 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.
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.
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.
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.
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.
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.

LOAD-DATE: February 11, 1999

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