TESTIMONY OF MICHAEL MARIOTTE EXECUTIVE DIRECTOR NUCLEAR INFORMATION AND RESOURCE SERVICE BEFORE THE SENATE ENERGY COMMITTEE FEBRUARY 5, 1997 Mr. Chairman and Members of the Committee, thank you for asking me to testify before you today. I appreciate this opportunity to present our views on S. 104, "interim" nuclear waste storage and radioactive waste issues generally. I am Michael Mariotte, executive director of the Nuclear Information and Resource Service (NIRS). Since 1978, NIRS has served as the information and networking center for citizens and organizations nationwide concerned with nuclear power, radioactive waste and radiation issues. We currently have about 1,000 organizational and individual members in the U.S. and abroad with a keen interest in nuclear policy. We reach the public through production of numerous fact sheets, information packets, and other materials, as well as our monthly newsletter, The Nuclear Monitor, and an active website (www.nirs.org), which currently contains about 5,000 documents from the federal government, from environmental organizations from around the world, and prepared by NIRS. My testimony today is on behalf of our members worldwide. No nation has yet solved the radioactive waste issue; thus there is significant interest not only among our U.S. members who may be directly affected by S. 104, but also among our international members who often look to the U.S. for leadership on nuclear issues. INTRODUCTION: S. 104 SHOULD BE REJECTED BY THE SENATE ENERGY COMMITTEE S. 104 should be rejected by the Senate Energy Committee. It is unnecessary; if enacted, it would be harmful to public health and safety and the environment and would eliminate whatever scientific credibility and public support remains for our nuclear waste programs; and, ultimately, would cause even greater problems than those it purports to fix. Briefly: this bill attempts to address a radioactive waste disposition "crisis" that simply does not exist. It would do so by running roughshod over public health and safety standards and existing law intended to protect both our democracy and the environment. It would increase the number of existing radioactive waste sites in our nation by one, and decrease the number by zero. It would undermine the scientific credibility of our far-more-important program of attaining a long-term and effective disposition option. It would needlessly redirect funds from this program for the temporary benefit of a few wealthy nuclear utilities. It could well add to our federal budget deficit. It would set into motion the unprecedented transportation of enormous amounts of lethal radioactive waste across our nation's highways and railways, through our nation's largest cities and our agricultural heartland--without a clear plan for what happens next to this deadly material, or even assurance that this waste need not be moved again. It would expose countless communities, large and small, to budgetary and manpower pressures to be able to respond effectively to potential nuclear transportation accidents. I will say at the outset that I understand the frustration that motivates this bill. Our nation's nuclear utilities perceive a lack of progress on a "solution" for nuclear waste disposition, and seek to accelerate the programs which are perceived to be lagging. These utilities have collected--from their ratepayers, not their stockholders--billions of dollars intended to be used for the Nuclear Waste Fund, to identify and develop a permanent nuclear waste storage option, and they see insufficient progress toward that goal. They also see monies collected for radioactive waste disposition used to help bring the federal budget closer into balance. I agree with these utilities on one point: money collected under the Nuclear Waste Fund should not be mingled with general revenue, and should not be used to show a federal budget more in balance than it otherwise would be. The Nuclear Waste Fund should be used solely in the search for an answer to perhaps the most vexing and difficult scientific and technological problem our nation ever has faced: how to ensure that the deadliest waste substances ever created never enter our environment. But the policies stated in S. 104 would not address the underlying problems in our nation's nuclear waste program; rather they would exacerbate those problems in favor of a dangerous quick-fix approach. This bill would not make more effective use of Nuclear Waste Fund monies; rather, it would move us further from the goal of long-term nuclear waste disposition. Finally, this bill would place tens of millions of Americans into risk of a "mobile Chernobyl" in their front yards while doing almost nothing to remove hazardous nuclear waste from their back yards. Our objections to this bill fall into three main categories. S. 104 is unnecessary. S. 104 is harmful to the environment, to public health and safety, and to the democratic process. S. 104, in its previous incarnations, already has reduced the credibility of our nuclear waste programs; Energy Committee approval of the bill at this time would reduce that credibility even more. For the reasons listed briefly above, and in more detail below, S. 104 should be rejected by the Senate Energy Committee. I. S. 104 IS UNNECESSARY A. THE JULY 1996 FEDERAL APPEALS COURT DECISION DOES NOT REQUIRE DOE TO MOVE WASTE BY 1998 The July 23, 1996 federal appeals court decision (U.S. Court of Appeals, District of Columbia Circuit, Case No. 95-1279) often has been misreported as requiring the Department of Energy to begin disposing of high-level radioactive waste by 1998. This is simply not true. First, the court did not order DOE to do the literally impossible: to somehow "dispose" of nuclear waste when there are no disposal facilities available. Rather, the court said that if DOE cannot begin disposing of the waste by 1998, then certain unspecified remedies may be instituted. (A number of state regulators and utilities now have filed suit--prematurely, in my view--to determine what those remedies may be). This is because the court's decision was not based on law, but rather on a service contract between DOE and the nation's nuclear utilities. Like all service contracts based on large-scale engineering contracts, this one contains a delay clause (Article IX, Standard Contract for the Disposal of Spent Fuel and/or High-Level Radioactive Waste, Federal Register, Vol. 48, No. 75, Monday, April 18, 1983, pp 16590-16608). Paragraph A of this clause states, "Neither the Government nor the Purchaser [the nuclear utilities] shall be liable under this contract for damages caused by failure to perform its obligations hereunder, if such failure arises out of causes beyond the control and without the fault or negligence of the party failing to perform. In the event circumstances beyond the reasonable control of the Purchaser or DOE--such as acts of God, or of the public enemy, acts of Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather--cause delay in scheduled delivery , acceptance or transport of SNF and/or HLW, the party experiencing the delay will notify the other party as soon as possible after such delay is ascertained and the parties will readjust their schedules as appropriate, to accommodate such delay." Paragraph B addresses avoidable delays: "In the event of any delay in the delivery, acceptance or transport of SNF and/or HLW to or by DOE caused by circumstances within the reasonable control of either the Purchaser or DOE or their respective contractors or suppliers, the charges and schedules specified by this contract will be equitably adjusted to reflect any estimated additional costs incurred by the party not responsible for or contributing to the delay." Clearly, the contract at issue recognized the possibility of schedule delay. Just as clearly, the contract's remedies do not include a requirement that DOE somehow "dispose" of high-level nuclear waste absent a facility to do so. Whether the experienced delays have been unavoidable or avoidable, and thus what the exact remedies may be, is for the court to decide. It is tempting to argue that the enormous and unforeseen problems in determining sites and designing and building facilities appropriate for the long-term disposition of radioactive waste are, in fact, acts of God. This is, after all, a first-of-a-kind program, yet to be undertaken successfully anywhere in the world. Certainly, it could be effectively argued that the delays have been caused by acts of Government, in both its sovereign and contractual capacities. Specifically, the Congress has not fully appropriated Nuclear Waste Fund monies and, at various times, has placed strings on the DOE's ability to complete its mission. The single biggest Congressional blunder, however, was in setting the arbitrary 1998 date in the first place. Perhaps, in 1982, sixteen years seemed a long time away and ample time to site, design, and build a nuclear waste facility. Even then, note should have been made that it was taking utilities an average of 10-12 years, and several billions of dollars, to build a single nuclear reactor--a much less complex and challenging task than developing a facility to store the waste from more than 100 reactors and keep the lethal radiation from that waste from the environment for more than 250,000 years. DOE is at fault for failing to use the official channels for notification of the contract holders of the numerous delays in the waste program's schedule. The agency should have done so. But the changes in schedule have been enshrined in reports to Congress and in other official materials. The Contract Holders were, in fact, well aware of the changes in plans and the difficulties involved in implementing the waste program. In the wake of the court's decision that the contract is binding, DOE took action to remedy the situation by making an official notification of unavoidable delay. This was an action within the scope of the contract. It does not constitute breaking the contract. The Department then issued an inquiry as to what other remedies Contract Holders might seek. Contrary to many media reports, the Court did not direct DOE to build an "interim" waste storage facility; indeed, the Court could not do so. And contrary to many media reports, the Court did not direct DOE to begin storage of radioactive waste by 1998; indeed, it could not require the Agency to implement what would be a physical impossibility except under the most hazardous possible conditions. The Court simply found DOE in violation of its contract and remanded the case to determine possible remedies at the appropriate time. S. 104 would exacerbate the problems of the past, by setting yet another arbitrary deadline, this time for "interim" waste storage. If there is one lesson to be learned from this muddled nuclear waste program, it is that whenever political will bumps up against scientific reality, science will overcome politics every time. For better or worse, the basic unyielding laws of science are far stronger than the laws of man. If we are ever to have a credible, scientifically-defensible, and environmentally-sound nuclear waste program, the first thing Congress must do is to stop setting arbitrary dates or milestones: they are not helpful. Protecting our nation from the lethal byproducts of the nuclear era for thousands of millennia is an extraordinary proposition. Given that the commercial nuclear era is only 40 years old (the first U.S. commercial reactor, Shippingport, began operating in 1957), and this era has produced lethal byproducts lasting eons, prudence would seem to dictate a cautious, deliberate and science-based approach--not a quick-fix for those who yell the loudest. B. THERE IS NO RADIOACTIVE WASTE STORAGE CRISIS The concept that there is a radioactive waste storage "crisis" has gained currency in recent years, primarily through repetition. In fact, this alleged "crisis" is greatly overstated, just as it was prior to passage of the 1982 Nuclear Waste Act. Some of the reactors that were then said to be threatened by forced shutdown by 1986 are still operating without having reached full pool storage capacity. Only a handful of reactors have yet run out of storage room. They have handled this, more or less successfully, by building on-site dry cask storage units. Another handful of reactors may run out of storage room over the next ten years. Many other reactors, which have reported to DOE's Energy Information Administration that they will run out of room during the next decade, have exaggerated the facts. For example, Florida Power and Light reported to DOE that its St. Lucie-2 reactor, which began operation in 1983, will run out of its existing storage space in 2001. But it is not difficult to calculate when a reactor actually will run out of room, based on remaining fuel pool capacity and average annual number of fuel assemblies generated. In this case, St . Lucie-2 has one of the nuclear industry's highest lifetime capacity factors--80.7%. Even if it maintains that extremely high capacity factor, it would run of pool space by 2007, not 2001. Indeed, if it were somehow able to operate at 100% capacity factor from now on, an impossibility, its fuel pool would not be at capacity until 2005. More likely, given widespread nuclear industry experience with aging reactors, the lifespan of its pool will extend beyond 2007. Similarly, St. Lucie-1, which began operation in 1976, was reported to DOE to reach pool capacity in 2007. Instead, unless it runs at 100% capacity from now on, it will reach capacity in 2010. Perhaps even more typical of the industry are Northeast Utilities reactors. This utility reported to DOE that its Haddam Neck reactor would reach full pool capacity by 2002. In fact, as many Wall Street analysts now believe will be the case for many aging reactors in the upcoming era of utility deregulation, Haddam Neck was permanently closed in December 1996 for a bevy of costly safety and management problems. Northeast also told DOE that its Millstone-1 and -2 reactors would run out of pool space by 2004 and Millstone-3 would run out by 2003. But at their lifetime capacity rates, Millstone-1 actually would run out of space in 2011; Millstone-2 in 2005, and Millstone-3 in 2004. Even this overstates the case, because since these calculations were performed, all three units have been in lengthy shutdown for safety and management problems. By the time these reactors return on-line, if in fact all of them do, each will have at least two more years of fuel pool capacity, assuming they are able to maintain their earlier capacity factors. Similarly, Commonwealth Edison has reported that its Dresden-2 reactor will run out of pool storage space in 2000, and Dresden-3 will run out in 2001. This would be true only if both reactors ran at nearly 100% capacity from 1995 until their license expiration dates. In fact, in 1995 their lifetime capacity ratings were 57.6% for Dresden-2 and 55.5% for Dresden-3. At those capacity ratings, Dresden-2's pool capacity would last two years beyond its 2006 license expiration date, while Dresden-3's pool would be full by 2011--the year its license expires. Moreover, both reactors were shutdown during 1996, and remain shutdown now, extending even those dates by at least another year. Further, both reactors remain on the NRC's "watch" list (along with four other CommEd reactors) and the NRC has warned CommEd that it may need to close Dresden permanently and concentrate on improving the safety of its other reactors. It is no doubt true that a few reactors will run out of fuel pool capacity during the next decade. This handful of reactors can take the same steps already taken by others: build new pools or dry cask units (Calvert Cliffs, Davis-Besse, Surry, etc.) or close early and save their ratepayers some money (Haddam Neck, Trojan, San Onofre-1, Yankee Rowe, etc.). In neither case is Congressional intervention warranted. The real reason for the nuclear waste "crisis" is that nuclear utilities want to transfer the title to the waste, and thus liability for waste-related accidents, to taxpayers as soon as possible. The utilities know, better than anyone, exactly how hazardous this material is: that's why they are the loudest NIMBYs (not in my back yard) of all. The spectre of dozens of reactors being forced to close prematurely for lack of storage space, or being forced to spend millions of dollars on new waste storage facilities simply does not exist for at least the next decade. There is no reason, at this time, to change current law and the appropriate prohibition against construction of an "interim" storage facility in Nevada. Such a change would further undermine the credibility of the scientific investigation now underway at Yucca Mountain in order to respond to a problem that does not yet exist. C. THE INDUSTRY IS GETTING WHAT THE NUCLEAR WASTE FUND PAYS FOR The nuclear industry, and some state regulators, have argued--based at least in part on the arbitrary and inappropriate 1998 deadline-- that because utilities have collected and deposited about $12 Billion from ratepayers into the Nuclear Waste Fund the utilities are somehow entitled to an "interim" waste storage site. In fact, the Nuclear Waste Fund is clearly targeted for permanent, not temporary, storage. Furthermore, the Nuclear Waste Fund is woefully inadequate to meet projected costs of a permanent storage site; diversion of funds for "interim" storage would further delay progress on a permanent program and increase the costs of the program. Current projections are that it will cost $34 Billion to complete the study of Yucca Mountain, and to design, build and operate the facility. The Nuclear Waste Fund is now projected to bring in over its lifetime $22 Billion--a shortfall of $12 Billion. The shortfall could become even larger. Premature retirement of reactors, such as Haddam Neck, will reduce revenues into the Fund. Numerous Wall Street analysts (Moody's, etc.) currently are predicting that from 5 to 25 reactors will close before the end of their license periods over the next decade due to various safety problems, anticipated expensive repairs, and inability to compete under utility deregulation. Given the history of all large nuclear projects, cost estimates can reasonably be projected to increase. Finally, current estimates do not include the costs of monitoring the permanent site for the necessary thousands of years--a cost future generations presumably will feel should be borne by the generation which used nuclear power. Diverting Waste Fund money into an unneeded "interim" storage program would increase the shortfall even further. Even the readily anticipated $12 Billion shortfall requires immediate action, especially if a balanced budget remains a Congressional priority. The 1 mil/kwh Nuclear Waste Fund fee should be increased now. D. THERE IS NO SAFETY ADVANTAGE TO CENTRALIZED "INTERIM" STORAGE OVER ON-SITE STORAGE High-level nuclear waste stored outside of reactor fuel pools, whether stored in a centralized "interim" facility or onsite, uses the same dry cask technology. The NRC has certified existing dry casks at reactor sites to be "safe" for 100 years--the same period dry casks used in a centralized site would be certified. While we are skeptical of the claims that dry casks are, in fact, safe, centralizing the waste in one large facility using dry cask technology offers no safety advantages over storing the waste at multiple facilities using the same dry cask technology. A safety advantage could perhaps be demonstrated for a given reactor site if all radioactive waste were removed from that reactor site and placed in a centralized location. But this could occur only if the reactor ceased generating radioactive waste by ending operations. As long as reactors operate, each one will continue to store radioactive waste on-site. Irradiated fuel cannot be moved from the pool for at least five years following its removal from the reactor core. And large transport casks can only be loaded with irradiated fuel that has cooled for 10 years in liquid. The nuclear industry's well-advertised and publicized claim that an "interim" storage program will remove nuclear waste from 109 reactors and store it at only one centralized location is specious and wrong. Instead, a centralized storage program will only add one additional nuclear waste site to the 109 currently existing (the actual number, including closed reactors, is closer to 120). Each operating reactor will continue to be a nuclear waste site as long as it operates, no matter what kind of radioactive waste program is in effect. But there is a tremendous safety disadvantage to centralizing radioactive waste storage at an "interim" site: the very real risks entailed by unnecessary radioactive waste transportation. II. S. 104 WOULD BE HARMFUL TO THE PUBLIC, THE ENVIRONMENT AND SCIENTIFIC CREDIBILITY A. S.104 WOULD INITIATE UNPRECEDENTED, UNNECESSARY AND DANGEROUS TRANSPORTATION OF RADIOACTIVE WASTE THROUGH 43 STATES Establishment of a centralized "interim" storage facility in Nevada, as would be accomplished under S. 104, would initiate a massive, unprecedented, unnecessary and dangerous radioactive waste transportation program. In January 1995, we released information based on a comprehensive study prepared for Nevada's Nuclear Waste Project Office, which indicated that a centralized "interim" storage program would result in some 15,000 shipments by rail and highway of radioactive waste, through 43 states and the District of Columbia, hundreds of cities, and across America's agricultural heartland. The largest of these transport casks--which have yet to be designed or tested--each would contain the long-lived radiological equivalent of some 200 Hiroshima bombs. More than 50 million Americans live within 1/2 mile of these likely transportation routes. The routes go through some of our nation's largest cities, including New York City; Los Angeles; Chicago; Houston; Baltimore; Jacksonville; Denver; Portland, Oregon; Little Rock; Baton Rouge; and on CSX tracks less than one mile from where we now sit. Thousands of canisters would travel though non-nuclear states such as Indiana and Kentucky, and across the grain and corn fields of Kansas, Nebraska, Iowa and other essential food-producing regions. Obviously, a nuclear accident--a "Mobile Chernobyl"--in any of these places would be an ecological and societal disaster of nightmarish proportions. In September 1996, responding to increased DOE interest in privatization of nuclear waste transport, Planning Information Corporation of Denver produced a different study, again for Nevada's Nuclear Waste Project Office. Under privatization, far more of this waste traffic would go by truck. According to this PIC study, these could amount to some 79,300 truck shipments, through such congested regions as I-95 along the Florida tourist coast, the Capital Beltway, I-80 through the heart of Chicago, and many more. Another 12,600 rail shipments also would be necessary. The cumulative transport total would be about 62.3 million highway miles and 14 million rail miles over a 30-40 year period. The nuclear industry and its backers argue that radioactive waste transportation has been accomplished safely for years. According to statistics from the Nuclear Waste Strategy Coalition, there have been about 2400 shipments of high-level nuclear waste in the U.S. (most of this has been small shipments of fuel from submarine reactors) and only seven accidents have occurred, none of which involved the release of radioactive materials. Simple math indicates that at this rate--1 accident every 343 shipments--the original 15,000 shipment scenario would result in 44 accidents. The revised, privatized scenario would result in 268 accidents involving high-level radioactive waste canisters, given previous experience. Can we be sure none of these accidents will involve the release of radiation? It is difficult to place much reliance on the small sample of seven. "Low-level" radioactive waste transport, which is more common, may offer a clue. Although most shipments, like most personal trips to the market, are accident free, there have been notable exceptions; for example, an accident near Newport News, VA which tied up traffic for three days and forced highway crews to dig up contaminated portions of I-64. All of us in Washington are familiar with the near-daily tractor-truck accidents on the Beltway and I-95. And we're familiar with the tragic head-on rail accident in Silver Spring, Maryland in January 1996. This accident, involving an Amtrak train and a MARC commuter train, posed the exact scenario believed likely to challenge the integrity of a waste transport cask: a high-impact collision involving substantial fire. And, indeed, this accident took place on a CSX line identified as a nuclear waste transport route. That this accident took place in the backyard of a 5,000 person apartment complex underscores the need for complete safety in radioactive waste transportation. At present, such safety cannot be assured. Even accidents less disastrous than a "Mobile Chernobyl" pose serious problems for local emergency responders. In Maryland, for example, it is a state agency which has responsibility to respond to a radiological emergency. But state officials won't be first on the scene in Silver Spring, or along I-95 in Beltsville. The first on the scene will be local police, firefighters, and medical personnel. Next will be county officials. State officials, based miles away, won't be able to arrive until after the crucial immediate questions must be answered: has there been a radiation release? should we evacuate the area? how large of an area should be evacuated? which hospitals have the facilities to treat contaminated victims? In my county, Prince Georges, MD, there has been no training of county nor local city personnel. There is no money for radiation monitors nor for protective clothing for emergency workers. Multiply these realities by the literally thousands of jurisdictions that would experience radioactive waste transportation and one begins to understand that the infrastructure needed to support widespread and massive waste transport is not in place. Beginning transport before such an infrastructure exists could lead to disaster of the highest dimension. This is particularly true given that, by definition, an "interim" storage site is temporary. In a few years, if Yucca Mountain is not found suitable for permanent waste storage--or is found unable to accept the entire amount of high-level waste generated by the commercial nuclear industry and government nuclear weapons programs (this may be of particular concern if the DOE's current plan to use MOX fuel in commercial reactors comes to fruition; use of MOX fuel would increase the amount of high-level waste expected to be produced by these reactors)--the waste may have to be moved yet again. B. PLACING AN "INTERIM" STORAGE FACILITY IN NEVADA WOULD MAKE A CHARADE OF THE ENTIRE NUCLEAR WASTE PROGRAM Under S. 104, an "interim" storage facility for high-level radioactive waste would be placed at the Nevada Test Site, near Yucca Mountain, unless the President by the end of 1998 reaches a determination that Yucca Mountain is not "suitable" for a permanent high-level waste facility. Then, under S. 104, the President must designate an alternate site; if he does not, then the "interim" site reverts back to Nevada. This provision would make a mockery of the past decade's investigation into whether Yucca Mountain is scientifically-acceptable for long-term nuclear waste storage. Current law prohibiting a centralized "interim" storage site in Nevada exists precisely to assure that the scientific investigation of Yucca Mt. can proceed without prejudice and undue pressure to find the site acceptable if it is not. The U.S. is not currently building a nuclear waste facility at Yucca Mountain, it is investigating whether a facility should be built at the site. To accept this provision of S. 104 would be an admission that the nuclear waste program is a charade. Rather than attempting to determine the appropriateness of a site, this bill simply assumes--for all practical purposes--that a facility will be built at Yucca Mt. This would undermine all remaining scientific credibility in the nuclear waste program (and some recent actions already have stretched that credibility to the breaking point). And if there is no scientific credibility in the outcome of the radioactive waste program, there is likely to be no public credibility in assurances of safety in nuclear waste transportation. It is difficult to adequately emphasize the tremendous strain on the nation's nuclear waste program that a premature acceptance of Yucca Mountain would cause. Not only would scientific credibility go down the drain, but no state could feel assured that it might not later feel the heavy hand of the federal government determined to site another nuclear waste dump on its land, regardless of any state or local laws. The sweeping provision in S. 104 (section 501), which pre-empts any other federal, state or local law which may get in the way--essentially at the whim of the Secretary of Energy, can only add to concern that the federal government wishes--at least in the case of nuclear waste--to override whatever legitimate state and local concerns may arise. Finally, a decision on if and where to place an interim storage site should be deferred until a permanent site is licensed. This is consistent with the recommendations of the U.S. General Accounting Office on January 17, 1997. The GAO concluded in its report of that date, "In our view, the logic of the administration's position [a veto threat on "interim" storage legislation] would also apply to such a designation made after the assessment has been completed but in advance of the decision on the site's suitability, a recommendation that the site be selected for a repository, and the decision on licensing that must be made on the basis of compliance with the guidelines, standards, and regulations." In short, GAO argues that it would be premature to designate an "interim" radioactive waste storage site prior to actual licensing of a permanent waste site. Even site "suitability" is not sufficient to warrant an expensive and hazardous waste transportation program absent assurance that the "interim" site can indeed become permanent. C. S. 104 WOULD SET UNCONSCIONABLY HIGH RADIATION STANDARDS In order to bypass EPA radiation standards, which could well disqualify Yucca Mountain as both a permanent and an "interim" waste facility, S. 104 would have Congress direct the EPA to establish radiation standards for Yucca Mountain of 100 millirems/year. This is unacceptable at every possible level. To begin with, Congress has no business establishing a scientific criterion such as radiation standards. If Congress believes it holds sufficient technical and scientific expertise to establish such standards, then it may as well abolish the DOE, EPA, and NRC in one fell swoop. Congress exists to set policy, not standards. Second, as if to demonstrate that Congress does not have the expertise to set radiation standards, it should be noted that the standard set in S. 104--100 millirems/year emissions from a Yucca Mountain waste dump--is the equivalent, according to the NRC, of a 1 in 286 lifetime risk of fatal cancer. To put this another way, our nation typically regulates pollutants to ensure that exposure to them will cause no more than a 1 in 10,000 to 1 in 1,000,000 lifetime risk of fatal cancer. The unconscionable radiation standard espoused in S. 104 provides a 35 to 3500 times greater risk of fatal cancer than standards for other hazardous materials regulated by the federal government. This provision exists in the bill precisely because the EPA so far has balked at approving such lenient standards, so far out of the norm of our society's experience and expectations. Regardless of whether the Congress ultimately approves or disapproves the "interim" storage concept, such an exposure standard must not be allowed to stand. We further note that the bill explicitly states that people living outside the norm should be excluded from calculations that determine radiation exposure levels. But scientific practice, in the U.S., Europe and across the globe, uses people such as this to determine radiation exposure levels precisely because they are outside the norm, and thus can account for non-conservatisms in estimating exposure levels. Determining likely radiation exposures from any facility is an inexact science; it is folly to pretend that we know how exposure to different radioactive elements in different situations (through air contact, water contact, food contact, etc.) will affect human beings and the larger eco-systems. Conservatism in calculating the effect of such exposures is the only effective barrier to widespread over-exposure, cancer, and death. S. 104 would unforgivably bypass these fundamentally-sound principles of radiation standard establishment. Finally, while the NRC has adopted a 100 millirems/year emissions standard, this standard differs substantially from that proposed under S. 104. The NRC standard applies to all facilities under its jurisdiction--no member of the public anywhere should receive more than 100 millirems/year [a level we find too high] total from all sources of radiation exposure. Further, the NRC has an ALARA (as low as reasonably achievable) program which serves to reduce radiation exposures from major individual facilities to a small fraction of that allowed for all nuclear facilities. D. S. 104 WOULD UNNECESSARILY AND UNACCEPTABLY REDUCE THE SCOPE OF THE RELEVANT ENVIRONMENTAL IMPACT STATEMENT In an effort to get around the fact that an "interim" waste storage site could probably not be licensed, S. 104 would severely limit the elements that must be considered--by law--in the Environmental Impact Statement required by the National Environmental Policy Act. Specifically, S. 104 would obviate any discussion of the need for the facility; need--despite substantial evidence to the contrary, simply would be assumed. The EIS would not have to address alternatives to the facility, contrary to existing law, nor would it have to consider even design alternatives to the proposed facility. This provision (sec. 204(f)) challenges basic American concepts of democracy and public participation. It would ensure that U.S. citizens could not participate in fundamental decisions about an "interim" storage facility, such as the need for the facility, its design, practical alternatives, etc. The American people have every right and authority to participate in these decisions which may affect their lives. Congressional attempts to circumvent those rights and authority can only lead to further public disillusionment, cynicism, and outright opposition to the nuclear waste program. If ever there was a government program which cried out for public support and credibility, it is this one. Yet, under S. 104, Congress would quash every meaningful avenue of public participation, thus ending any hope of public support--support that would be sorely needed if radioactive waste transportation is to be instituted. E. S. 104 WOULD PRE-EMPT STATE AUTHORITY S. 104 would attempt to cope with the State of Nevada's consistent opposition to the Yucca Mountain site as either a permanent or "interim" nuclear waste dump by fully pre-empting all state and local authority in this area. This may be convenient, but it is worth noting by legislators not from Nevada that what is enacted can and will be used against you. Specifically, it is generally recognized that Yucca Mountain is unlikely to be found appropriate to hold all of the nuclear waste from this generation's nuclear reactors, absent large-scale early shutdowns. In addition, at least a few utilities have expressed an interest in reactor license extension, which, if granted, would create more high-level waste. Finally, use of MOX fuel in commercial reactors would add to the high-level waste flow. For these reasons, the DOE in accord with the 1982 Nuclear Waste Policy Act sought in the mid-1980s to identify a second site for high level nuclear waste. For purely political considerations, the DOE was directed by Congress to drop its search for a second site. Once again, however, Congress may be flexing its political will against scientific reality, and the American people will ensure that science will win. In short, Yucca Mountain may currently be our most controversial proposed nuclear waste dump, but it is not for long destined to be our only controversial proposed high-level nuclear waste dump. It is nearly without question that Yucca Mountain cannot handle all of the lethal byproducts of our nuclear age. That means a second site must be chosen within the next 10-20 years. Obviously, no one knows where that site may be. But it can be said with absolute assurance that the state in which that second site is located will want every possible opportunity to make its case about the suitability of that second site. Quite clearly, that state will seek to use its powers, as any state in the Union would, to protect the citizens within its own borders. S. 104, by pre-empting every federal, state and local law that may get in the way of its goals, would set a precedent other states, like Nevada already does, would find intolerable. This is a basic states' authority issue. To make matters worse, Sec. 501 of S. 104 makes clear that pre-emption of state law is not up to the White House, nor the Congress, but instead is at the whim of the Secretary of Energy. To concentrate such power in a single cabinet-level official is unprecedented and uncalled-for. It can quickly be seen that such a precedent could be used in all manners of authority vested in the states, from the size of welfare payments, to construction of low-income housing, to unemployment benefits to highway construction. Under the terms of this bill, a cabinet secretary could override the best and most innovative thinking of a state under virtually any circumstance that could be imagined. This would be an absolutely unacceptable precedent established for purely expedient purposes. F. AN "INTERIM" STORAGE FACILITY AT YUCCA MOUNTAIN MAY NOT BE LICENSABLE UNDER NRC REGULATIONS Current NRC regulations for licensing an "interim" storage facility (10 CFR Part 72) may preclude Yucca Mountain as a suitable site for "interim" storage. Specifically, 10 CFR 72.102 states that an "interim" storage facility "West of the Rocky Mountain Front (west of approximately 104 degrees west longitude), and in other areas of known potential seismic activity" will have to meet the requirements of Appendix A of 10 CFR 100, which apply to siting of nuclear reactors. Further, the "design earthquake (DE) for use in the design of structures must be determined as follows....the DE must be equivalent to the safe shutdown earthquake for a nuclear power plant." It is highly unlikely any utility would find Yucca Mountain a seismically appropriate location to build a nuclear reactor. It is also highly unlikely that any above-ground "interim" storage facility could be designed to meet the "design earthquake" for a nuclear reactor in a similar seismic zone, and it almost certainly could not be done on a cost-effective basis. There is no doubt the Yucca Mountain region is seismically active. In 1992 an earthquake measuring 5.6 on the Richter Scale caused considerable damage to Department of Energy buildings located within five miles of the proposed "interim" storage site. To license such a site probably would require the NRC to change its regulations without basis--which, of course, could and would be challenged in court. III. S. 104 WOULD FURTHER REDUCE PUBLIC CREDIBILITY IN THE NUCLEAR WASTE PROGRAM A. ENVIRONMENTAL GROUPS ARE UNANIMOUS IN THEIR OPPOSITION TO S. 104 We have occasionally heard that the "interim" storage concept is an "environmental" and "consumer" issue. It is, but only in terms of opposition to the "interim" storage idea. During 1996, we were unable to identify a single environmental, citizens or consumer organization in the nation which supported S. 1936, which is identical to the new S. 104. However, more than 150 such groups issued statements against S. 1936. These include major religious organizations such as the National Ministries of the Presbyterian Church (USA), the Office for Church in Society, United Church of Christ, the Union of American Hebrew Congregations and The United Methodist General Board of Church and Society; national environmental groups like Natural Resources Defense Council, Sierra Club and League of Conservation Voters, and dozens of other national, regional and local organizations. Clearly, the environmental, consumer and religious communities are opposed to "interim" storage and S. 104. A partial listing is enclosed. B. CITIES AND COUNTIES HAVE PASSED RESOLUTIONS AGAINST RADIOACTIVE WASTE TRANSPORTATION One of the most striking responses to the introduction of "interim" storage legislation last Congress was a near-immediate reaction against the concept in cities and counties across the nation. Numerous jurisdictions acted quickly to oppose such legislation. Despite some state regulator's opinions who support the nuclear industry that they somehow represent large numbers of people, action counts louder than words. And those closest to the people, city and county councils, have spoken clearly: Los Angeles, Denver, Philadelphia and St. Louis all passed resolutions against "interim" storage and radioactive waste transportation. So did Ventura, Santa Barbara, and San Luis Obispo Counties in California, Marshall and Anson Counties in North Carolina, Bucks County, PA, Mt. Rainier, Takoma Park and Greenbelt, MD; Decatur, GA; numerous other towns in Massachusetts, Pennsylvania, New York and more. Should S. 104 appear to be a real threat, we expect that a large number of other local jurisdictions will follow suit, from New England to southern California. I have attached Denver's resolution (against S. 1271) as a sample. We believe that when the American people speak, policymakers are forced to listen. In this case, the American people, through their closest elected representatives, are speaking as loudly and clearly as possible. Attempting to force radioactive waste transportation upon them, especially to an uncertain, undefined future, is destined to fail. A December 1995 public opinion poll adds to the notion that the American people will not sit still for unnecessary radioactive waste transportation. When given the choice between beginning such transport now, and moving the waste away from their back yards, or delaying transport and instead establishing an independent commission to completely re-assess our nuclear waste programs, 70% of the public were in favor of establishing an independent commission. C. THE CLINTON ADMINISTRATION HAS PROMISED, IN WRITING, TO VETO "INTERIM" STORAGE LEGISLATION During the last Congress, President Clinton promised at least four times, in writing, to veto "interim" radioactive waste storage legislation. We have discerned no reason to believe the President has changed his mind on this issue. Indeed, we believe that if S. 104 passes the Senate and House, a veto will occur shortly thereafter. IV. CONCLUSIONS A. We need a scientifically-defensible nuclear waste program. S. 104 removes science from the nuclear waste decision process. Nuclear waste storage affects tens of millions of Americans and generations to come for millennia. Our citizens deserve the best possible science and the greatest possible assurance that the nuclear power age will not become the nuclear calamity age for our children, grandchildren, and future generations. Our decisions about this lethal material, which lasts for 250,000 years and longer, must be made on the basis of the best possible science, not on political expediency nor on a desire to subsidize nuclear utilities. For exactly these reasons, we have for more than five years called for the establishment of a truly independent commission to fully re-examine all of our nuclear waste programs (why, for example, should plutonium be allowed to go into "low-level" nuclear waste dumps?). Our goal is to attain public confidence in our nuclear waste programs and consider truly innovative solutions to the enormous problems currently confronting us. B. The Department of Energy must become more straightforward and honest with its Contract-holders. When inevitable delays in this first-in-the-world program occur, DOE must quickly inform the nuclear utilities, as well as the public, that these delays will occur. It is not acceptable to leave either utilities or the public wondering about DOE's true intentions. C. Establishment of an "interim" storage facility should await, as according to the January 17, 1997 U.S. General Accounting Office report, actual licensing of a long-term, high-level nuclear waste facility. Anything other than actual licensing makes a tremendous supposition that may not be supported by scientific evidence. If our entire nuclear waste program since 1982 has not been a charade, then we must await the real conclusions--these will not fully be evident until the NRC has had the opportunity to review license documentation and issue a binding license. Establishment of an "interim" facility prior to license issuance, especially in Nevada, and prior to establishment of an active and informed transportation infrastructure, would undercut scientific and public credibility in the entire nuclear waste program, which would make its implementation difficult, if not impossible. D. There is no immediate reason to institute "interim" nuclear waste storage. Those few nuclear utilities facing storage problems--and the number has been vastly overstated--are legally and morally responsible for their own waste. It makes no safety or economic sense to transport radioactive waste across the nation to an "interim" facility. At best, such transport could only alleviate the problems experienced by a handful of nuclear utilities, at worst such transport could create a Mobile Chernobyl that could poison one of our great cities or cause permanent interdiction of prime agricultural land. The statistics in favor of nuclear waste transport are shaky and unrepresentative; the reality could be quite different. For all of the above reasons, NIRS believes, without reservation or qualm, that S. 104 should be rejected by the Senate Energy Committee. We do believe that our nation's nuclear waste program needs substantial overhaul. Thus, we are eager to meet with any Member who wishes to discuss these issues further.