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S. Hrg. 100-230, Pt.1

NUCLEAR WASTE PROGRAM

HEARINGS

BEFORE THE

COMMITTEE ON ^^^
ENEEGY AND NATURAL EESOURCES
UNITED STATES SENATE

ONE HUNDREDTH CONGRESS

FIRST SESSION

ON THE

CURRENT STATUS OF THE DEPARTMENT OF ENERGY'S CIVILIAN
NUCLEAR WASTE ACTIVITIES

JANUARY 29, FEBRUARY 4 AND 5, 1987

PART 1

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SHIPPING USuXtkll ^

Printed for the use of the
Committee on Energy an Natural Resources

Bostes! '5?'^*'^ Obrary

BostGii, ^fflA 02116

S. Hrg. 100-230, Pt.1

NUCLEAR WASTE PROGRAM

HEARINGS

BEFORE THE

COMMITTEE ON

ENERGY AND NATURAL RESOURCES

UNITED STATES SENATE

ONE HUNDREDTH CONGRESS

FIRST SESSION

ON THE

CURRENT STATUS OF THE DEPARTMENT OF ENERGY'S CIVILIAN
NUCLEAR WASTE ACTIVITIES

JANUARY 29, FEBRUARY 4 AND 5, 1987

PART 1

Printed for the use of the
Committee on Energy an Natural Resources

U.S. GOVERNMENT PRINTING OFFICE
77-104 WASHINGTON : 1987

For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office. Washington, DC 20402

COMMITTEE ON ENERGY AND NATURAL RESOURCES

J. BENNETT JOHNSTON, Louisiana, Chairman

DALE BUMPERS, Arkansas
WENDELL H. FORD, Kentucky
HOWARD M. METZENBAUM, Ohio
JOHN MELCHER, Montana
BILL BRADLEY, New Jersey
JEFF BINGAMAN, New Mexico
TIMOTHY E. WIRTH, Colorado
WYCHE FOWLER, Jr., Georgia
KENT CONRAD, North Dakota

Daryl H.

D. Michael

Frank M. Gushing,

Gary G. Ellsworth

JAMES A. McCLURE, Idaho
MARK O. HATFIELD, Oregon
LOWELL P. WEICKER, Jr., Connecticut
PETE V. DOMENICI, New Mexico
MALCOLM WALLOP, Wyoming
FRANK H. MURKOWSKI, Alaska
DON NICKLES, Oklahoma
CHIC HECHT, Nevada
DANIEL J. EVANS, Washington

Owen, Staff Director
Harvey, Chief Counsel
Staff Director for the Minority
. Chief Counsel for the Minority

(II)

CONTENTS

Page

Hearings:

January 29, 1987 1

February 4, 1987 137

Februarys, 1987 329

Thursday, January 29, 1987

STATEMENTS

Adams, Hon. Brock, a U.S. Senator from the State of Washington 115

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico 12

Evans, Hon. Daniel J., a U.S. Senator from the State of Washington 17

Gore, Hon. Albert, Jr., a U.S. Senator from the State of Tennessee 132

Hecht, Hon. Chic, a U.S. Senator from the State of Nevada 14

Herrington, Hon. John S., Secretary of Energy, accompanied by Ben C.

Rusche, Director, Office of Civilian Radioactive Waste Management 20

Johnston, Hon. J. Bennett, a U.S. Senator from the State of Louisiana 1

McClure, Hon. James A., a U.S. Senator from the State of Idaho 7

Sasser, Hon. James R., a U.S. Senator from the State of Tennessee 127

Wednesday, February 4, 1987

STATEMENTS

Bentsen, Hon. Lloyd, a U.S. Senator from the State of Texas 146

Clements, Hon. William P., Jr., Governor, State of Texas as presented by
Steve Frishman, director, nuclear waste programs, office of the Governor of

Texas.. 238

Louie, Dick, Jr., vice chairman, board of trustees. Confederated Tribes of the
Umatilla Indian Reservation, and chairman. Nuclear Waste Advisory Com-
mittees, accompanied by Daniel Hester, Esq., attorney 304

Gardner, Hon. Booth, Governor, State of Washington as presented by Curtis

Eschels, special assistant to the Governor 219

Hecht, Hon. Chic, a U.S. Senator from the State of Nevada 144

Johnston, a U.S. Senator from the State of Louisiana 137

McClure, Hon. James A., a U.S. Senator from the State of Idaho 142

Poynor, John M., mayor, Richland, WA 232

Sampson, Melvin R., chairman, tribal council, Yakima Indian Nation, accom-
panied by Russell Jim, manager, nuclear waste program, Yakima Indian
Tribal Council; and Dean Towsley, legal counsel of district, Yakima Indian

Tribal Counsel 270

Sawyer, Grant, chairman, Nevada Commission on Nuclear Projects, accompa-
nied by Robert R. Loux, chairman. State of Nevada Agency for Nuclear

Projects 153

White, Del T., assistant secretary/treasurer, Nez Perce Tribal Executive Com-
mittee, accompanied by Ronald T. Halfmoon, manager, nuclear waste policy
act program; and Kevin Gover, special counsel to the tribe regarding Nucle-
ar Waste Policy Act issues 288

Thursday, February 5, 1987

STATEMENTS
Hatfield, Hon. Mark O., a U.S. Senator from the State of Oregon 334

(III)

Page

Hecht, Hon. Chic, a U.S. Senator from the State of Nevada 337

Johnston, Hon. J. Bennett, a U.S. Senator from the State of Louisiana 329

McClure, Hon. James A., a U.S. Senator from the State of Idaho 331

Rusche, Ben C, Director, Office of Civilian Radioactive Waste Management,

Department of Energy 339

APPENDIXES

Appendix I

Responses to additional committee questions from the January 29, 1987 hear-
ing 425

Appendix II

Responses to additional committee questions from the February 4, 1987 hear-
ing 699

Appendix III

Responses to additional committee questions from the February 5, 1987 hear-
ing 882

Appendix IV
Additional material submitted for the record 1159

NUCLEAR WASTE PROGRAM

THURSDAY, JANUARY 29, 1987

U.S. Senate,
Committee on Energy and Natural Resources,

Washington, DC.

The committee met, pursuant to notice, at 11:12 a.m., in room
SD-366, Dirksen Senate Office Building, Hon. J. Bennett Johnston,
chairman, presiding.

OPENING STATEMENT OF HON. J. BENNETT JOHNSTON, A U.S.
SENATOR FROM THE STATE OF LOUISIANA

The Chairman. It is my pleasure to welcome Secretary of Energy
John Herrington to the hearing today to testify on the program
being carried out under the Nuclear Waste Policy Act of 1982 by
the Department of Energy. I intend that this examination be com-
prehensive. I also intend that when we are done we will have a
program that works, so this is just the first of several hearings that
we will have on this issue. This basic nuclear waste program is a
very important, that is to say vital, program. It is also highly con-
troversial.

It is very expensive, and it is a program that has to succeed.
There is no choice but to succeed with this program. The waste is
there. It must be disposed of.

I congratulate the Secretary for his appearance today. The Secre-
tary is the one who is responsible for the policy of the Department.
He should be the one who answers the questions about those poli-
cies.

We also have hearings on the nuclear waste program scheduled
for next week, February 4 and 5. On February 4 the States and af-
fected Indian tribes will present their concerns with the program
for siting the first repository under the Act. The Department is in-
vited to respond to those concerns on February 5.

We had hoped to have the Secretary here on the 5 to present the
Department's response, but his schedule does not permit it. He is
here today to present his views and status of the program.

This appearance is also timely because of the release yesterday
of the Department's proposed amendments to the mission plan for
civilian radioactive waste management.

This plan provides a guide to the Department's intentions in im-
plementing the Act. The amendment to the mission plan an-
nounced yesterday restates DOE's intention to postpone site-specif-
ic work on a second repository or eastern repository, extends the
date contemplated for opening the first repository from 1998 to
2003, and reemphasizes the importance of the monitored retrieva-

(1)

ble storage, or MRS, facility for acceptance of spent fuel from utili-
ties on schedule in 1998.

There has been some misunderstanding of the meaning of these
amendments of the mission plan. The mission plan is required
under Section 301 of the Nuclear Waste Policy Act. The plan exists
to inform Congress and the public about the Department's inten-
tions in implementing a program. The plan has no legal status.

The Act itself is the legal basis for the nuclear waste program.
What the Department says or does not say in the mission plan has
no effect on the provisions of the Act, so Congress is under no obli-
gation to respond by some particular time limit to the mission plan
or to any amendments to it.

Some of the provisions of the plan state intentions that are con-
trary to the provisions of the Act. The part of the plan that pro-
vides for an indefinite postponement of site-specific work on the
second or eastern repository is such a provision. Indefinite post-
ponement of the second or eastern repository is plainly contrary to
the Act.

The DOE cannot make that decision "legal" by anything it says
in the mission plan, nor does Congress' action or inaction in re-
viewing the plan have any effect on the legality of these actions. It
is the Act that determines what is or is not legal. The Act says
what it says until the Act is amended.

If DOE does something contrary to the Act it is taking a risk.
There is a risk of challenging the courts, and such challenges have
been made. There is a risk of Congressional reaction to what DOE
does as well. I expect some of my colleagues will propose legislation
reacting to what DOE has done with this program. But none of
these risks become reality until the court rules, or until the Con-
gress acts. Until that time, the Act is the only guide to what is
legal or illegal about the program.

[The following memorandum was submitted for the record at the
request of the Chairman:]

Department of Energy

Washington, DC 2CS£5
September 5, 19 86

KEHORANDUM FOR:

FROM:

SUBJECT:

Benard C. Rusche
Director, Office of Civilian
Radioactive Waste Management

J. Michael Farrell
General Counsel

Relationship Between the Mission Plan and
Second Repository Reconraendation Requirements
of the Nuclear Waste Policy Act of 1982

This rnemorandiim memorializes advice p
office regarding the legal relationsh
contained in sections 112 and 114 of
Act, 42 U.S.C. 10132 and 10134, to ir.=
and 1990 of a candidate site for a se
.mission plan required by section 301
10221. Consideration of this questic
ment's recent decision that site-sper
second repository should be deferred
current estimates of quantities of sp
be generated during the remainder of

reviously rendered to your
ip between the requirements
the Nuclear Waste Policy
V. s recor.Tiendations in 1989
cond repository, and the
cf that statute, 42 U.S.C.
n relates to the Depart-
ific activities concerning ;
indefinitely because of
ent reactor fuel that will
this century.

The particular question presented is
mission plan required by section 301
effect of supplanting the requiremer
and 114 that recommendations be made
tory site in 1989 and 1990. For the
conclusion of this office is that, v
mission plan is an entirely appropri
to present information concerning th
repository to the Congress, such an
would not have the legal effect of a
section 112 and 114 that require par
particular times regarding a second

whether an amendment to the
cf the Act would have the
ts appearing in section 112
regarding a second reposi-
reasons stated below, the
hile an anendment to the
ate means under the statute
e need and timing of a second
arendment, standing alone,
itering the provisions of
ticular recommendations by
repository site.

In approaching this question the threshold inquiry is whether an
amendment to the mission plan is an appropriate vehicle under the
Act to address the question of the reed and timing of site-
specific activities in the second repository program. The
statute specifies that the mission pl£.n shall be a "comprehen-
sive" document that is capable of providing *an informational
basis sufficient to permit informed decisions to be made in

carrying out the repository program. ..." 42 U.S.C. \l0221 (a) .
The Act specifies explicitly that the mission plan should address
scheduling of major elements of the repository program, 42 U.S.C.
10221(a)(2), as veil as the need for any additional legislation.*
42 U.S.C. 10221(a)(3). Likewise the plan is to contain a
description of ")cnown sites at vhich site characterization
activities should be undertaJcen. ..." 42 U.S.C. 10221(a)(7).
Finally, the plan is required to address total repository
capacity required to accommodate spent fuel expected to be
generated through the year 2020, as well as "the number and type
of repositories" that would be required as well as a schedule for
their construction. 42 U.S.C. 10221(a)(9).

From this it seems clear that the number and schedule of reposi-
tories, possible future legislation, and estimates of required
capacity all are subjects to be embraced within the mission plan.
These are the very factors that are inplicated by the Depart-
ment's conclusion that site-specific activities in the second
repository program should be deferred indefinitely. While the
statute itself, as it was ultimately adopted by the Congress,
does not expressly require an amendment to the mission plan to
reflect circumstances and progress and understanding of likely
future program requirements, forx-.ulation of an amendment to the
mission plan is entirely in keeping with the Congress' intention
of the plan "to serve as a planning blueprint for the programs
authorized under the Act." H.R. Rep. No. 411, 97th Cong., 1st
Sess. 29 (1981) . Thus we believe it is entirely appropriate, as
a matter of law, for the Department to have determined that
significant matters, including new information, relating to the
conduct of the second repository program should be presented to
the Congress through an amendment to the mission plan.

Neither the text of the statute nor its legislative history
speaks to the relationship betveen the repository identification
ai^d scheduling provisions of the mission plan and other provi- '
si'ons, contained elsewhere in the statute, that bear upon the
second repository program. Thus it is necessary briefly to
examine those provisions as well.

At the outset we observe that, in contrast to the first reposi-
tory, the Nuclear Waste Policy Act expressly refrains from
authorizing construction of a second repository. It accomplishes
this through section 302(d) of the Act, 42 U.S.C. 10222(d), which
prohibits expenditures from the Nuclear Waste Fund for any
facility construction unless it is "expressly authorized by this
or subsequent legislation." That section further authorizes the
Department "to construct one repository. ..." From this
• provision it is apparent that any recommendation required by the
•'Act regarding the siting of a second repository at most would

comprise a recommendation for new legislation from the' Congress.
Unlike the case of ;the first repository, whose constrviction is
authorized by the Viuclear Waste Policy Act after conclusion of
the complex task of characterization and other decisions required
by the statute, no second repository construction activities
actually could occur without entirely new express authorizing
legislation to be enacted by the Congress in the future.

Notwithstanding this distinction, section 112 of the Act
expressly addresses nomination and recommendation of candidate
sites for a second repository. Section 112(b)(1)(C) requires the
Department, "[n]ot later than July 1, 1989," to nominate five
sites and to recommend to the President three candidate sites for
characterization "for selection of the second repository." The
President is then required to review "each candidate site recom-
mendation," but after the "required recommendation of candidate
sites" yet additional sites may be identified and characterized
under the same procedures. 42 U.S.C. 10132(c), (d) . Likewise
does section 114(a) (2) (A) of the Act, 42 U.S.C. 10134(a)(2)(A),
require the President, no later than March 31, 1990, to "sub-it
to the Congress a recommendation of a second site frcn any site
already characterized. ..."

From this it is apparent that the statute, although it does not
itself authorize construction of a second repository, does
contemplate particular site recor.-endations to be made regarding
the second repository in 1989 and 19S0. Nowhere do the
provisions imposing the requirement for these recommendations
condition or otherwise expressly relate those provisions to the
companion ones dealing with the mission plan.

VThile it is clear that the Congress intended the subjects to be
addressed in the mission plan to include the very factors that
bear on the timing of site-specific actions in the second reposi-
tory progran, it did not condition the requirements to make
recommendations regarding a second repository site on the factors
to be addressed in the mission plan. While it is entirely
reasonable to infer from tlie explicit limitation of the construc-
tion authorization to one repository that Congress intended to
reserve an opportunity for de novo consideration befcre construc-
tion of any second repository, it nonetheless left intact the
specific requirements to make recormendations regarding the site
of the second repository in 1989 and 1990. As statutory require-
ments they remain intact until repealed, amended or supplanted by
new legislation adopted through constitutionally-required proce-
dures of bicameralism and presentr.ent to the President. Cf.
I.N.S. V. Chadha, 462 U.S. 919 (19S3). In view of the" fact that
; the mission plan provisions of the Act explicitly contemplate
■both the subjects of estimates req-^ired for repository capacity

and appropriate new legislative initiatives, it seems clear that
harmonizing the el^mentB of the statute would entail treatment cf
matters such as the second repository program in the mission plar.
with a view to consideration of appropriate new additional
legislation by the Congress.

As we understand it, this is precisely the course of action that
the Department has adopted in addressing the second repository
program. It has revised downward its estimates of the waste that
will be generated during the remainder of this century and the
repository capacity that would be necessary to accept those
wastes. It seems apparent from the Act's legislative history
that judgments regarding such required capacity had a significant,
bearing on the statute's treatment of the second repository
program. See, e.g. , 128 Cong. Rec. S 15653 (daily ed. Dec. 20,
1982) (Remarks of Sen. Gorton); 1£. at 15661 (Remar)cs of Sen.
Hoynihan) .

Thus, for the foregoing reasons, the provisions of sections 112
and 114 of the Nuclear Kaste Policy Act that require recommenda-
tions concerning a second repository are not themselves
supplanted by an amendjnent to the mission plan required by
section 301 of the Act. Despite this, however, the course of
action adopted of fon?.ally proposing redirection of the second
repository program, based on evaluations of new information that
bear on the question of timing and need, through amendment of th =
mission plan appears to be entirely appropriate and consistent
with Congress' expectation that the mission plan will deal with
subjects, like the second repository, that under any approach
will require additional legislation before being authorized for
construction.

The Chairman. Mr. Secretary, there are Hterally hundreds of
questions, vital, controversial, difficult, that must be asked, that
will be asked. Some have good and satisfactory answers. Some do
not. But this is the first of those difficult hearings. So I think we
should get on with the hearings. I have invited Senator Brock
Adams, who some months ago requested that I hold special hear-
ings on the Nuclear Waste Policy Act. I have also invited Senator
Sasser, who has an interest because of the MRS in Tennessee, to sit
with us, and they will be permitted to ask questions later on.

I hesitate to have opening statements at this point because our
time is so limited, so if I may just, with the concurrence of the com-
mittee, limit opening statements to the ranking minority member.
Senator McClure.

STATEMENT OF HON. JAMES A. McCLURE, A U.S. SENATOR FROM

THE STATE OF IDAHO

Senator McClure. Thank you very much, Mr. Chairman. I un-
derstand the need to limit opening statements. I have an opening
statement which I ask be made a part of the record.

The Chairman. Without objection.

Senator McClure. I will summarize very briefly to say that the
Act that was passed was the result of a lot of effort on the part of a
lot of people and required in order to be passed at all a careful and
sensitive balance between competing interests and concerns. My
concern over the last couple of years has been whether or not that
balance is being maintained or whether it is being destroyed.

I think we all knew it is going to be difficult not only to pass a
bill but to implement a program. As is obvious from the current
events, the launching of a program even before the implementation
of it has proved to be extremely volatile politically in various areas
of our country, geographicaly and in terms of interest areas.

My concern, I guess, is best expressed by my appreciation to you,
Mr. Secretary, for your willingness to adapt your schedule to our
requirements in order to be here to express the administration's
position on an extraordinarily difficult policy area and to you, Mr.
Chairman, for arranging the schedule in such a way that the Secre-
tary could be here at this opening, which I think is absolutely es-
sential and important, and to express my concern and recognize
that when you and I cooperated as many others did in passing the
Act in the 97th Congress that we set some timetables that we knew
were extremely rigid and difficult.

I believe that those timetables were overly optimistic, and we
certainly did at that time recognize the difficulty in meeting them,
but they were stated the way they were in the law because there
was the urgent necessity of developing a program. That urgent ne-
cessity remains. I am not sure that I want to get involved too much
in a discussion of what is legal or what is not legal under the stat-
ute. Certainly a lot of people focus on that question, being critical
of the timetable, but I am going to view these hearings from the
standpoint that if that timetable established in the statute was in-
appropriate and if circumstances and the knowledge we have
gained since the timetable was established indicate that the timeta-
ble needs to be revised, then let us get that issue before this com-

mittee, before the Congress and its appropriate organs and say, all
right, let us change the time table, but let us make that a coopera-
tive effort in which the Congress is involved in the decision as to
what the timetable should be and how that varies from that which
was laid out in the statute in the first place.

I do not think it would be fair for us and the Congress to simply
point our fingers at the administration and say, hey, you are doing
something wrong, do something different, without Congress telling
you what we expect you to do. On the other side of that I think it
is equally important for the administration to work carefully with
the Congress in the development of a timetable which is realistic if
indeed the one expressed in the current statute is not. I look for-
ward to your participation in this hearing and I appreciate your
willingness to be here, and again I wish to thank the Chairman for
having accommodated this opening schedule to your own require-
ments this morning.

[The prepared statement of Senator McClure follows:]

0[-'e;'!:ig statement of

SENATOR JAMES A. ficCLURE

Good morning- Let me bf.gim by taking a moment to express my
appreciation to secretary herrif.'gton for taking the time to
personally appear before the committee on this important issue,
i would also commend the chairman for the efforts he made to
accommodate the secretary's schedule-

as many people in this room may recall, passage of the
Nuclear Waste Policy Act of 1982 was no simple task- Many
Congresses grappled with the issues, but the proper resolution
eluded us for years- Yet in the 97th Congress, through
perseverance, we i.'Ere able to focus enough effort, garner enough
support, provide the proper bai.ance, an'd maintain sufficient
momentum to actually get a bill passed in the waning days of that

LAME duck session.

But of all the elements that contributed to the bill's final
passage, i would say that the proper balance was key to
everything- All of us here today realize how necessary the "art
OF compromise" is to any piece of legislation, and the Nuclear
'Waste Policy Act was no exception-

None of the authors of the original Act would be fool enough

TO THINK that THE ACT WAS PERFECT- FoR ONE, WE IMPOSED VERY
TIGHT--PERHAPS "oVERLY 0 PTOMI S T I C " " "D E ADL I NES IN THE ACT- We DID
THIS TO KEEP THE "PRESSURE Ou" FOR A SOLUTION TO A REAL AND
URGENT PROBLEM. HOWEVER, WHEN WE N'OW HEAR OF SCHEDULE SLIPPAGES,
WE ARE NOT TOO TERRIBLY SUPRISED, ESPECIALLY WHEN WE REALIZE THAT
THESE SLIPPAGES MAY BE NECESSARY IN ORDER FOR DOE TO DO A
CREDI CLE TECHNICAL JOB-

2 -

YeT^ there are other lVESTS. BEniDES SCHEDULE SLIPPAGES, THAT

do concern the authors very much- some of these events threaten
the very fabric of the program-

Some of these events relate to the nature and multitude of

LAWSUITS PENDING AGAINST DOE- ThESE SUITS SEEM TO PROPOGATE AT

every step of the way^ and may be u n avo i d a bl e" "the "nature of the
beast"^ shall we say.

Some events relate to the lack of progress towards "good
faith" negotiations leading to the finalization of "consultation

and cooperation" AGREEMErJTS BETWEEN DOE AND THE STATES AND

affected Indian tripes. I'm not even entirely sure who's at
fault in this area.

But, worst of all, events that do. actually upset the balance
in the Act--or even have the appearance of upsetting this

BALANCE--GI VE ME GREAT CAUSE FOR CONCERN. So THIS IS WHY 1 LOOK
AT SOME OF LAST YEAr's DECISIONS ON THE PART OF THE DEPARTMENT,
AND NOW AT DOE's PROPOSED CHANGES TO THE MISSION PlAN, WITH SOME
TREPIDATION- I AM HOPING THAT, AS A RESULT OF TODAY's HEARING
AND THE HEARINGS SCHEDULED FOR tJEXT WEEK, WE WILL GAIN A BETTER
PERSPECTIVE ON THE PRESENT SITUATIGT!, AND COME TO SOME
CONCLUSIONS ON WHETHER OR NOT THE PROGRAM !S STILL ON TRACK. I
HOPE OUR ANSWER IS "yES"- If THE ANSWER IS NO, THEN I FOR ONE AM

prepared to work with the secretary, senator johfjston and other
Members of this Committee and Congress to get the program back on

TRACK. I don't expect THE TASK TO BE EASY. It HASN't BEEN IN

THE PAST. However, nuclear waste disposal is a problem which

MUST BE SOLVED. I REMAIN COMMITTED TO THAT END-

The Chairman. May I ask, Mr. Secretary, what is your time con-
straint today?

Secretary Herrington. We have a Cabinet meeting, Mr. Chair-
man, at 2 o'clock to debate the SSC and I need to personally be
present and make that argument. It is an important project. I am
prepared to stay until that time, and I am also prepared to come
back if the committee so desires.

The Chairman. My guess is that your presence would be re-
quired later. I do not want to cut any member off if they really
want to make an opening statement, but I think it would be better.
Does anybody really want to make an opening statement? [General
laughter.]

Senator Evans. No, you just stipulated, Mr. Chairman, that all
the opening statements we have worked on so carefully will be sub-
mitted for the record.

The Chairman. Of course.

Senator Hecht. Likewise, Mr. Chairman.

[The prepared statements of Senators Bingaman, Hecht, and
Evans follow:]

STATEMENT BY SENATOR JEFF BINGAMAN
HEARINGS ON DOE NUCLEAR WASTE PROGRAM
January 29, 198?

I thank the Chairman for holding this first of a series
of three hearings to look at the Nuclear Waste Program of the
Department of Energy. Today we discuss the status of a
program designed for the disposal of spent nuclear fuel and
high-level radioactive waste by the Federal Government in
underground repositories and for the long-term storage of
such spent fuel and waste in a monitored storage facility.

Very few energy issues in the past few years have
attracted as much public attention as the disposal of
high-level radioactive waste. With the May announcement by
the Secretary of three proposed repository sites, there has
been a tremendous level of interest in the Department's plans
— especially from the affected site states.

STATEMENT BY SENATOR JEFF BINGAMAN
DOE NUCLEAR WASTE PROGRAM
Page 2

Today we hear of further plans for the program. I am
concerned by the delays indicated in the mission plan
submitted by the Agency and the indefinite postponement of
site-specific work for the second repository. These delays
only frustrate efforts to move our Waste Program forward.

I hope the Congress is able to take effective action
this year to resolve the problems causing these delays.

statement of Senator Hecht

Mr. Chairman, I would like to thank you for holding this hearing
today on the recent developments in the nation's high level
nuclear waste disposal program.

As I'm sure everyone knows by now, this issue is extremely
important to Nevadans, and I am keenly interested in how the
Energy Department intends to approach the issue.

I am glad to see that the Energy Department has decided to slow
down its schedule for the repository proaram. The five year delay
at the end of the process, and the approximately two year delay
that is contemplated for the next step in the process, should
allov/ some breathing room for the Congress and the Department to
seriously re-examine the direction we are headed in, and evaluate
possible alternatives and ways to improve the program.

Last June this Committee held a hearing on this issue. At that
time I told the Secretary that I excected him to reassure me and
the people of Nevada that the Department is still comr.itted to a
second repository. I have received this reassurance, although I
still am convinced that the Department's plan to delay that
repository is illegal and should not be permitted by the Congress.

(name) <(j

(date)

Page 2

If the Department persists in its intention to violate the law,
then I feel we in the Congress will have little choice but to tak^
strong and decisive action, which rnav nean totally rethinking our
approach to high level nuclear waste disposal in this nation.

Another major concern I had last June was that the Department
should cooperate more fully with the state of Nevada with regard
to the state's funding reguests for oa rt ic ipa t ion in the program.
The Department has largely complied with the state's reauests in
terms of funds, although not a week oasses v;ithout my receiving
correspondence from the state government pointing out yet another
problem Nevada is having with the implerentat ion of DOE's nuclear
waste program. This continual strean of complaints makes me
seriously wonder about the future of this program in general.

I remain willing, although my oatienre is beginning to wear thin,
to work with the Department and the Ccmrittee to see if this
program can still be fixed.

Mr. Chairman, thank you again for focusing the Committee's
attention on this matter, and let me assure you that I am very
eager to work with you on this issue in the months ahead.

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STATEMENT BY SENATOR DANIEL J. EVANS ON
HEARING ON DOE'S NUCLEAR WASTE ACTIVITIES

SENATE ENERGY AND NATURAL RESOURCES COMMITTEE
JANUARY 29, 1987

MR. CHAIRMAN, I COMMEND YOU FOR HOLDING THESE IMPORTANT
HEARINGS EARLY ON IN THIS SESSION OF CONGRESS. MANY EVENTS HAVE
TRANSPIRED SINCE THE INCLUSION OF THE CUT IN FUNDING FOR NUCLEAR
WASTE ACTIVITIES ON THE 1987 CONTINUING RESOLUTION THAT MAKE THIS
COMMITTEE'S COMPREHENSIVE REVIEW OF DOE'S PROGRAM MORE IMPERATIVE
AND TIMELY THAN EVER BEFORE. THEREFORE I APPRECIATE THE
WILLINGNESS OF THE CHAIRMAN TO ACCOMMODATE THE INTERESTS OF
SENATOR HECHT, MYSELF, AND OTHER SENATORS FROM CANDIDATE STATES
TO MOVE PROMPTLY TO THESE HEARINGS.

THE NUCLEAR WASTE PROGRAM NEEDS A SUBSTANTIAL MID-COURSE
CORRECTION. DOE'S DECISION ON MAY 28TH HAS CAUSED GREAT CONCERN
AND OUTRAGE AMONG MANY STATES AND AFFECTED PARTIES. SUBSEQUENT
ACTIONS HAVE INTENSIFIED THAT CONCERN. I'VE COMPARED THE
MANAGEMENT OF THE WASTE PROGRAM TO THAT OF A LOCOMOTIVE BARGING
DOWN THE TRACK WITH LITTLE OR NO CONCERN FOR OTHERS ON OR AROUND
THE TRACK. IT MAKES THE PRETENSE OF HEEDING THE DIRECTIVES OF
THE AUTHORIZING AND APPROPRIATIONS COMMITTEES — BUT THEN CHARGES
AHEAD ON ITS OWN COURSE.

FURTHERMORE, AS WE SEE WITH THE MISSION PLAN AMENDMENT, THE
DEPARTMENT IS BOLDLY PROCEEDING TO MODIFY THE STATUTES AND
INTENT OF THE 1982 NUCLEAR WASTE POLICY ACT THAT CONGRESS PASSED
AFTER MUCH DELIBERATION. THEN THE DEPARTMENT HAS THE GALL TO
IMPLY: "WE'LL GO AHEAD AND IMPLEMENT THESE CHANGES IF THE
CONGRESS DOESN'T ACT AFFIRMATIVELY IN 30 DAYS TO OVERRULE OUR NEW
GAME PLAN". MR. CHAIRMAN, THIS ISN'T THE "CAREFUL IMPLEMENTATION
OF THE ACT" AND THE "DEVELOPMENT OF A CONSENSUS AMONG THE
AFFECTED PARTIES, ESPECIALLY THE STATES" THAT THE CONTINUING
RESOLUTION (CR) SPECIFICALLY DIRECTED DOE TO CARRY OUT DURING
THIS FISCAL YEAR.

THIS IS SIMPLE ARROGANCE AND BULLHEADEDNESS . I THINK IT'S
HIGH TIME TO BRING THE DEPARTMENT BACK TO REALITY. LET'S
REMEMBER WHAT THE MISSION PLAN REALLY IS: IT'S A GAME PLAN THE
DEPARTMENT DRAFTS TO CARRY OUT THE DIRECTIVES AND STATUTES IN THE
LAW PASSED BY CONGRESS. IT IS NOT THE LAW — IT IS A BASE OF
INFORMATION AND PROJECT DEADLINES THAT DOE, IN ITS JUDGMENT,
BELIEVES ARE NECESSARY AND USEFUL TO CARRY OUT THE LAW.

I THINK WHAT WE SEE IN THE DOE PROGRAM TODAY IS THE
LOCOMOTIVE SWITCHING TRACKS RATHER SUDDENLY AND ABRUPTLY TOWARD
DIFFERENT DESTINATIONS IN DIFFERENT STATES. THE NEAR-TERM GOALS

CHANGE, SUCH AS GETTING THE MRS FACILITY READY BY 1998 OR PUTTING
YUCCA MOUNTAIN SLIGHTLY AHEAD OF HANFORD IN SITE

CHARACTERIZATION. BUT THE PROCESS FOR REACHING THOSE DECISIONS
REMAINS SERIOUSLY FLAWED. THE CREDIBILITY OF THE PROGRAM IS AT
AN ALL-TIME LOW, BOTH HERE ON THE HILL AND AROUND THE COUNTRY.
THE DOE DECISION-MAKING PROCESS CERTAINLY DOESN'T INSPIRE
CONFIDENCE. AND I WOULD SUSPECT THAT THE ELECTRIC UTILITIES AND
EVEN THE SECOND-ROUND STATES ARE COMING TO RECOGNIZE THAT THEIR
INTERESTS ARE NOT NECESSARILY BEING SERVED BY THE PRESENT
MANAGEMENT OF THE PROGRAM. IN FACT, THE MISSION PLAN AMENDMENT
WILL PROBABLY INSPIRE SOME PARTIES TO CHALLENGE THE WASTE
CONFIDENCE DETERMINATION MADE BY THE NRC SEVERAL YEARS AGO.

I FEEL STRONGLY THIS COMMITTEE NEEDS TO EXAMINE CAREFULLY
THE FULL RANGE OF ALTERNATIVES TO DOE'S CONTINUING EMPHASIS ON
LONG-TERM DISPOSAL IN A PERMANENT GEOLOGIC REPOSITORY. WE MAY
HAVE OUR PRIORITIES BACKWARD IN DEVELOPING A GEOLOGIC REPOSITORY
PRIOR TO AN INTERIM STORAGE FACILITY. THIS COMMITTEE HAS
RECENTLY RECEIVED USEFUL TESTIMONY FROM SWEDISH REPRESENTATIVES
ON THE STRATEGY AND OPERATION OF ITS PROGRAM. THIS QUESTION
BECOMES PARTICULARLY IMPORTANT IF THE CONGRESS RE-EXAMINES: THE
ESTIMATES OF WASTE GENERATION OF A LOWER THAN PROJECTED NUMBER OF
NUCLEAR POWERPLANTS; AND THE MUCH HIGHER COST OF CHARACTERIZING
AND CONSTRUCTING DEEP GEOLOGIC REPOSITORIES TODAY.

MR. CHAIRMAN, ALL THESE QUESTIONS SHOULD BE PUT ON THE
TABLE. THE DISPOSAL AND VOLUME OF DEFENSE HIGH-LEVEL WASTE MUST
NOT BE FORGOTTEN IN THIS DEBATE. THE ADMINISTRATION STILL HASN'T
REACHED AGREEMENT ABOUT WHEN AND HOW MUCH THE PENTAGON PAYS INTO
THE NUCLEAR WASTE FUND FOR COMMINGLING DEFENSE WITH COMMERCIAL
WASTES. FINALLY, I DON'T THINK WE SHOULD EXCLUDE THE QUESTION OF
REPROCESSING COMMERCIAL HIGH-LEVEL WASTES FROM THIS DISCUSSION.
CIRCUMSTANCES HAVE CHANGED SUFFICIENTLY, IN MY VIEW, FROM
DECISIONS MADE IN THE 1970 'S ON REPROCESSING THAT WARRANT RENEWED
ATTENTION ON THIS SUBJECT.

WHERE ALL THIS IS GOING TO LEAD, MR. CHAIRMAN, I FRANKLY
DON'T KNOW RIGHT NOW. ONE THING IS CLEAR: THE CREDIBILITY OF
THE NUCLEAR WASTE PROGRAM HAS BEEN SERIOUSLY ERODED. YET WE IN
THE CONGRESS NEED TO FACE UP TO THE PROGRAM OF LONG-TERM DISPOSAL
OF THESE WASTES. UNFORTUNATELY, DOE HASN'T YET BEEN ABLE TO
ADDRESS SQUARELY THESE DIFFICULT ISSUES IN A WAY THAT INSPIRES
PUBLIC CREDIBILITY. I AM PLEASED TO SEE THAT THE CHAIRMAN HAS
ACCORDED THIS ISSUE A HIGH PRIORITY ON HIS AGENDA IN 1987 AND
LOOK FORWARD TO WORKING WITH HIM IN THE NEXT SEVERAL MONTHS.

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The Chairman. I appreciate the forebearance of the committee.
Mr. Secretary.

STATEMENT OF HON. JOHN S. HERRINGTON, SECRETARY OF
ENERGY; ACCOMPANIED BY BEN C. RUSCHE, DIRECTOR,
OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT

Secretary Herrington. Thank you, Mr. Chairman. May I add my
thanks to you and to this Committee for allowing me to appear this
morning at a modified schedule, and I deeply appreciate it. We will
be back on the 5th with Mr. Rusche, and then we will be happy to
make further appearances. I, too, would like to submit a detailed
statement for the record, but I would like to make a few remarks if
I could before we start questioning.

We have prepared a draft amendment to the Mission Plan for
the civilian radioactive waste management program. That draft
program is here with me today: the draft Mission Plan amend-
ment. In that document, which we are sending to the States and
the affected Indian tribes, the Nuclear Regulatory Commisson, and
other Federal regulatory agencies for comment, and which we will
make available for public inspection, we discuss significant develop-
ments and new information in the waste program. The Mission
Plan is intended to keep Congress fully informed on progress in the
program and the amendment will ensure the plan reflects current
program status.

After a 60-day comment period, DOE will revise the amendment
in response to the comments as appropriate and will submit it for-
mally to Congress for information and direction. We would expect
this to occur in about 120 days from now. Of course, these are
rough time limits. With your permission, Mr. Chairman, I would
like at this time to submit a copy of this draft amendment for the
record.

The Chairman. Without objection.

[The Draft Mission Plan Amendment dated January 1987 fol-
lows:]

DOE/RW-0128

Draft Mission Plan
Amendment^

lanuary 1987

U.S. Department of Energy

Office of Civilian Radioactive Waste Management
Washington. DC 20585

FOREWORD

This draft amendment to the Mission Plan is being submitted to
States and affected Indian Tribes and Federal agencies for
their review prior to formal transmittal to Congress as
provided for in Section 301 of the Nuclear Waste Policy Act
(NWPA) . Following interaction with these parties, and the
submission of their formal comments, the Mission Plan
Amendment will be submitted to Congress.

-Ill-

TABLE OF CONTENTS

Page

SIGNIFICANT RECENT ACHIEVEMENTS IN THE WASTE-MANAGEMENT PROGRAM ... 1

Achievements in the first-repository program 2

Selection of sites for characterization 2

Advances in technical planning 3

Progress in transportation and storage technologies U

Transportation U

Storage technologies A

EXTENSION OF THE SCHEDULE FOR THE FIRST REPOSITORY U

Consultation 6

Delay in the construction of the exploratory shafts 6

The need for more technical information 6

WASTE-ACCEPTANCE STRATEGY 9

THE MRS FACILITY 10

DELAY OF THE SECOND REPOSITORY 10

CONSULTATION AND COOPERATION 11

Negotiations for consultation-and-cooperation agreements 12

Initiatives for consultation-and-cooperation agreements 13

FINANCIAL ASSISTANCE AND OTHER MEASURES 13

REFERENCES 15

Appendix A ACHIEVEMENTS IN THE FIRST-REPOSITORY PROGRAM 17

Appendix B SCHEDULE FOR THE DEVELOPMENT OF THE FIRST REPOSITORY ... 31

Appendix C THE MRS FACILITY 37

Appendix D RESCHEDULING OF THE SECOND REPOSITORY A3

Appendix E FORECASTS OF SPENT-FUEL DISCHARGE RATES 51

Appendix F WASTE-ACCEPTANCE SCHEDULE 55

-V-

AMENDMENT

TO THE MISSION PLAN

FOR THE CIVILIAN RADIOACTIVE WASTE MANAGEMENT PROGRAM

As required by the Nuclear Waste Policy Act of 1982 (the Act), the U.S.
Department of Energy (DOE) published in June 1985 the Mission Plan for the
Civilian Radioactive Waste Management Program.^ The purpose of that docu-
ment was to "provide an informational basis sufficient to permit informed
decisions to be made in carrying out the programs required under the Act."
In preparing the Mission Plan, the DOE recognized that this informational base
would change over time, requiring the Mission Plan to be revised. The first
such revision is this amendment, which has been prepared to apprise the
Congress of —

• Significant recent achievements in the waste-management program.

• The revised schedule for the first repository.

• The decision to postpone site-specific work for the second repository
and plans for continuing the technology-development program for the
second repository.

• The DOE's intention to submit to the Congress, as soon as practicable,
a proposal for the construction of a facility for monitored retriev-
able storage (MRS) as an integral part of the waste-management system.

Also discussed are efforts to better define the consul tat ion-and-
cooperation interactions between the DOE and affected States and Indian
Tribes.

Included in this amendment are six appendixes. The first four present
more-detailed information about achievements in the first-repository progreun
(Appendix A), the revised schedule for the development of the first repository
(Appendix B), the MRS facility (Appendix C), and the program for the second
repository (Appendix D). The last two appendixes discuss trends in forecasts
of spent-fuel discharges (Appendix E) and an illustrative schedule for waste
acceptance (Appendix F) that accounts for the MRS facility, the revised
schedule for the first repository, and the delayed introduction of the second
repository.

SIGNIFICANT RECENT ACHIEVEMENTS IN THE WASTE-MANAGEMENT PROGRAM

Summarized below are significant recent achievements in the program for
the first repository, the development of the waste-transportation system, and
the demonstration of technologies for temporary storage. More-detailed dis-
cussions of progress in the waste-management program can be found in the
Annual Report to Congress^ and the budget submittal. The achievements sum-
marized here are those that have affected the decisions and plans described in
this Mission Plan amendment.

-1-

Achievements in the first-repository program

Significant recent achievements in the program for the first repository
include the selection of sites for characterization and advances in technical
planning.

Selection of sites for characterization. On May 27, 1986, the Secretary
of Energy, as required by the Nuclear Waste Policy Act, nominated five sites
in Mississippi, Nevada, Texas, Utah, and Washington as suitable for charac-
terization and recommended to the President that three of these sites — the
Yucca Mountain site in Nevada, the Deaf Smith County site in Texas, and the
Hanford site in Washington — be characterized as candidate sites for the first
repository.* The Secretary's recommendation was approved by the President on
May 28, 1986. The Secretary also made the preliminary determination that the
recommended sites are suitable for development as repositories.^

These events represent major milestones in the first-repository program.
Each of the five nominations was accompanied by an environmental assess-
ment^~^ containing information and analyses condensed from hundreds of
supporting documents. These documents represent years of work in gathering
and analyzing geologic and environmental data from site studies that began
before the enactment of the Act.

To aid in identifying preferred sites for characterization, the DOE
developed and applied a formal siting methodology^ that analyzed the potential
performance of each site during the preclosure period (i.e., during the period
the repository is receiving and emplacing waste) and for thousands of years
after the permanent closure of the repository. As described in Appendix A,
this decision-aiding methodology was an elaboration, developed in response to
comments, of one of the methodologies described in the draft environmental
assessments. ^"~^° The revised methodology and the proposed approach to its
application were reviewed** and found appropriate by the National Academy of
Sciences.'-'

The analysis used in the methodology predicted that all of the sites
recommended and approved for characterization were likely to perform
exceedingly well; in particular, it showed that, after closure, all the sites
would greatly exceed the 10,000-year waste-isolation requirements established
by the U.S. Environmental Protection Agency (EPA).20 Given the analyses in
the environmental assessments, the information base, and the results and
insights obtained with the decision-aiding methodology, the DOE believes that
the candidate sites will be demonstrated to be suitable for a repository,
recognizing that the demonstration of suitability must await the results of
site characterization and complete performance assessments against regulatory
requirements .

*A brief description of the siting process specified by the Act as well
as the milestones achieved to date is given in Appendix A.

**The Academy chose not to review the site-recommendation decision or to
comment on the three sites that were recommended and approved.

-2-

Advances in technical planning. To obtain a construction authorization
from the Nuclear Regulatory Connnission (NRC), it will be necessary to select
a site, to develop site-specific designs for the repository and the waste
package, and to demonstrate that the repository system — that is, the site,
the repository, and the waste package — meets the requirements of the EPA
standards^O and the NRC criteria^l promulgated in 40 CFR Part 191 and 10 CFR
Part 60, respectively. These activities will require the collection of
extensive earth-science data during site characterization.

Site characterization includes laboratory investigations; surface-based
data-collection activities like geologic mapping and seismic surveys; studies
conducted through the drilling of boreholes; and, most important, studies
conducted in the proposed host rock in an "exploratory-shaft facility." This
facility will consist of two exploratory shafts sunk to the depth of the
proposed repository, a drift connecting these shafts, and other underground
tunnels extending for several thousands of feet. Site characterization began
in May 1986, after the President's approval of the recommended sites, and will
continue for 6 to 7 years, depending on the site. Concurrently with charac-
terization, the DOE will conduct studies of environmental and socioeconomic
conditions in the areas of the candidate sites. Plans for such studies are
currently in review.

The Act requires that, before sinking the shafts, the DOE prepare a site-
characterization plan for each site. These plans are to be submitted for
review and comment to the Nuclear Regulatory Commission, the Governors and
legislatures of the States containing the candidate sites, affected Indian
Tribes, and the public. To guide the preparation of these plans and to ensure
that all the data required for site selection and licensing will be available
when needed, the DOE has developed two organizing principles: an "issues
hierarchy"*^ and an "issue-resolution strategy"; both are described in more
detail in Appendix A. The Issues hierarchy states the questions that must be
resolved in a logical order to demonstrate that the repository system meets
regulatory requirements. It thus provides a framework for developing the
site-characterization program and for explaining why the characterization
program is adequate and necessary. Similarly, the issue-resolution strategy
guides the development of specific plans for resolving each issue and provides
the rationale for the associated site-characterization activities. The scope
and the magnitude of this effort can be gauged from the site-characterization
plans now being prepared for publication: in each plan, the description of the
characterization progratm alone covers several thousand pages.

The issue-resolution strategy is common to all three candidate sites and
includes the performance allocation specifically requested by the staff of the
Nuclear Regulatory Commission. 23 Briefly stated, performance allocation
requires the DOE to identify, for each issue, the elements of the repository
system that will be relied on to resolve the issue; it also requires quantita-
tive statements describing the expected behavior of those elements and the
information that the site-characterization tests and analyses are expected to
provide. Thus the strategy will facilitate the preparation and review of the
environmental impact statement, the selection of the site for the first repos-
itory, the preparation of the license application, and the NRC's review of the
application.

-3-

Progress in transportation and storage technologies

Transportation. Significant progress can also be repoirted for the trans-
portation program. The DOE has issued both the Transportation Business
Plan,^^ which presents strategies for procuring shipping casks and support
services for transportation, and the Transportation Institutional Plan,^^
which lays the foundation for interactions among interested parties for co-
operation and the resolution of transportation issues. The third major
accomplishment was the release in July 1986 of the request for proposals for
the development of casks for shipping spent fuel from reactors to the DOE's
waste-management facilities. As required by the Act, this request asked pri-
vate industry to compete for contracts for design and engineering, certifica-
tion and testing, and the fabrication of prototype casks.*

Storage technologies. Recognizing that some utilities may exceed their
spent-fuel storage capacity before they are able to add new onsite capacity or
before the DOE can accept the fuel for disposal, the Act provides for research
and demonstration on storage. To meet the requirements of the Act, the DOE
has established a storage program whose objectives are to encourage and expe-
dite the efficient use of existing storage facilities and the addition of new
capacity. Among the means for achieving these objectives were participation
in cooperative demonstration programs with utilities to develop dry-storage
technologies that can be licensed generically by the Nuclear Regulatory Com-
mission, establishing cost-shared reeearch-and-development programs at Federal
facilities, and participation in cooperative programs with utilities to
develop the technology for consolidating spent fuel in a reactor storage pool.

Considerable progress toward achieving these objectives can be reported.
For example, dry-storage demonstrations and research at the DOE's Idaho
National Engineering Laboratory and the Pacific Northwest Laboratory contrib-
uted to the Commission's granting two utilities licenses to construct and
operate Independent Spent Fuel Storage Installations at the sites of two
nuclear power plants. The operation of these facilities will demonstrate the
technical and economic feasibility of adding storage capacity in metal or
concrete modules at reactor sites. Two demonstrations of rod consolidation in
a spent-fuel storage pool have also been conducted. They will contribute to
establishing consolidation as another method for achieving the maximum use of
existing storage capacity.

EXTENSION OF THE SCHEDULE FOR THE FIRST REPOSITORY

Beginning with the comments on the proposed DOE siting guidelines, ^^
which were issued on February 7, 1983, shortly after the Act was signed by the
President, and continuing through the comments on the 1984 draft Mission
Plan^' and the Project Decision Schedule, ^° many parties have insisted that,
given the controversial nature of the program, the schedule specified by

*It is expected that a contract or contracts will be awarded in the
second quarter of calendar year 1987.

-4-

the Act was not realistic and not achievable.* They pointed out that the
schedule was not reconcilable with the siting process mandated by the Act — to
achieve one it was necessary to sacrifice the other — and suggested that the
DOE ask the Congress for schedule relief.

The DOE attempted to meet both objectives and developed an aggressive
schedule that would allow the first repository to start accepting waste in
January 1998. This schedule, first reported in the 198A draft of the Mission
Plan'' and later revised in the 1985 Mission Plan,^ resulted from a care- ful
evaluation of the feasible options for each phase of the program and was based
on innovative approaches to the development of the repository, such as the
integration into the construction of the repository of the exploratory shafts
used for site characterization and the construction of the repository in two
phases. At the sane time, the DOE insisted that the schedule would not be
allowed to prevail over the equally important need for technical excellence
and public participation.

As already mentioned, several important milestones have been achieved.
However, the experience gained in achieving those milestones and advances in
the technical planning of the program, coupled with a decrease in the budget
for fiscal year 1987,** have led the DOE to reassess and rebaseline the
program for the first repository and to revise its schedule (see Table 1).
The new schedule shows a 5-year extension of the date for waste acceptance at
the first repository, from 1998 to 2003. (As explained later, the DOE could
nonetheless start accepting waste in 1998 at an MRS facility.)

The schedule remains aggressive and success oriented. As explained more
fully in Appendix B, most of the extension occurs in the near term, during the
site-characterization and site-selection phases. The activities scheduled for
these phases include the preparation and public review of the site characteri-
zation plans, the construction of the exploratory shafts, the underground
testing program, the preparation of the environmental impact statement, and
the preparation of the license application. The remainder provides more time
for the NRC review of the license application (36 months instead of the 27
months in the 1985 Mission Plan) and for the construction of the repository
(7 months more than in the 1985 Mission Plan).

There are several reasons for the near-term extension. Among them are
the delay incurred through the consultation process leading to the nomination
and recommendation of sites for characterization; the recognition from this
experience that more time should be provided in the future for consultation
and interaction with the States, affected Indian Tribes, and other parties;
the specification in the budget appropriation for fiscal year 1987 that no
funds are to be used for drilling exploratory shafts at any site in fiscal
year 1987; and the recognition, resulting from the above-mentioned advances in
technical planning, that the site-selection decision and the preparation of

*Summaries of these comments and the DOE's responses can be found in
Volume III of the 1985 Mission Plan.^

**In the budget appropriation for fiscal year 1987, the Congress provided
$499 million of the $710 million requested by the DOE.

-5-

the license application will require more information than previously planned.
The DOE also recognizes that more time than originally expected may be needed
to gain access to, and control of, the land needed for site characterization
where the land is privately owned (the Deaf Smith County site in Texas) or
under the control of other Federal agencies (the Yucca Mountain site in
Nevada). Furthermore, the DOE recognizes the potential for contingencies that
are yet to appear.

Consultation

The DOE has adopted the principle that its schedule for the first reposi-
tory would not be pursued at the expense of consultation and interaction with
States and affected Indian Tribes as well as the public. This principle was
applied in developing the siting guidelines'^ and in publishing the environ-
mental assessments (EAs) for the first-repository sites. ^~^ Although not
required by the Act, the DOE elected to issue draft EAs^"~^^ for public com-
ment and to conduct an extensive program of public outreach and interaction,
with 19 public hearings held in 7 States. Consultation with the States was
pursued by submitting early drafts for review and holding more than 50 brief-
ings for various State officials. In addition, in response to suggestions by
the Congress and the public, the decision-aiding methodology was developed,
implemented, and submitted to the National Academy of Sciences for review.
Together with the need to consider and address more than 20,000 written com-
ments in preparing the final EAs, these activities lasted 17 months (5 months
longer than planned in the schedule presented in the 1985 Mission Plan).

The revised schedule allows more time for interactions with the States
and affected Indian Tribes on the plans for site characterization, though, of
course, increasing technical activities and NRC review will be occurring
simultaneously with these interactions. It also allows 6 months more to
receive and address comments on the draft environmental impact statement.

Delay in the construction of the exploratory shafts

In the 1985 Mission Flan, the DOE had planned to start sinking explora-
tory shafts at the candidate sites in Nevada and Washington before the end of
fiscal year 1987 and had scheduled for December 1986 the publication of the
site-characterization plans for these sites. In response to the budget-
related delay and other factors, the DOE decided to use the additional time to
implement more thoroughly the issues hierarchy and the issue-resolution proc-
ess described earlier (see also Sections A. 2 and A. 3 in Appendix A) and to
revise some work sequences. This required revisions in the site characteriza-
tion plans then in preparation.

The need for more technical information

The recognition that more technical information is needed for the envi-
ronmental impact statement and the license application has led to changes in
the planned durations of exploratory-shaft construction and underground test-
ing. The time for the construction of the shafts is extended to accommodate
recommendations from the technical community for surface-based testing, geo-
logic mapping, as well as various tests that are to be conducted during shaft
construction. And the underground testing program is being extended to allow
the expanded collection of a more comprehensive body of technical information
for the selection of the repository site and licensing.

-6-

The time required for the construction of the shafts and for underground
testing can now be predicted more accurately because the designs of the shafts
are more advanced. In addition, at the sites in basalt and tuff, the DOE is
planning to increase the size of the second shafts, the depth to which the
shafts are sunk, and the extent of horizontal drifting (see Section A. 3 in
Appendix A). More important, the issues hierarchy delineates, for the first
time in a comprehensive and systematic manner, the regulatory requirements for
the siting, design, and performance of a repository. Similarly, the issue-
resolution strategy is used to delineate, for the first time in a systematic
manner, the investigations and tests that must be conducted. These delinea-
tions show that significantly more time will be required to provide the level
of detail and understanding considered necessary for site selection.

By providing for the collection of more data and a site-characterization
program that is based on a detailed issue-resolution strategy, this near-term
schedule increases confidence that the time allotted for the next phase — the
review of the license application by th^ Commission — will be suf f ici .nt. For
example, the extended schedule will allow the license-application designs for
the repository and the waste package to be based on data collected during in-
situ testing in the exploratory-shaft facility. The extended testing program
will diminish the likelihood of encotintering problems during the construction
of the underground portion of the repository.

In the revised schedule, the DOE expects to send the site-selection
report to the President in late 1994 and to submit the license application to
the Nuclear Regulatory Commission approximately 60 days later, in early 1995,
as soon as site designation becomes effective. The revised schedule allows 9
more months for the Commission to review the application and to issue a con-
struction authorization in early 1998. The construction of the repository
could then start in 1998 and, as in the 1985 Mission Plan, proceed in two
phases. Phase 1 operations could begin approximately 5 years later, in 2003,
at a spent-fuel receipt rate of 400 metric tons of uranium per year. Phase 2
operations could begin in 2006. In addition, in the year 2008, the repository
will be able to start receiving high-level waste generated in defense activ-
ities* and commercial high-level waste from a demonstration project in West
Valley, New York. The revised schedule is compared against the schedule of
the 1985 Mission Plan in Table 1.

The effect of the schedule extension on the costs of the program will be
examined in the next annual fee-adequacy report that the DOE will submit to
the Congress, as required by the Act.

Recognizing that the licensing schedule is necessarily aggressive and to
help ensure the receipt of a construction authorization early in 1998, the DOE
intends to make maximum use of the near-term schedule extension. In partic-
ular, its plans call for the following:

*A notice of inquiry and request for public comment on an equitable
allocation of fees for defense-waste disposal was published by the DOE in the
Federal Register on December 2, 1986.^0

-7-

Table 1. Schedule for the first repository^»°

Milestone

Current
schedule

1985 Mission
Plan schedule

Start of exploratory-
shaft construction

Tuff

Basalt

Salt

Start of in-situ testing
Tuff
Basalt
Salt

End of site characterization^
Tuff
Basalt
Salt

Draft environmental impact
statement

Final environmental impact
statement

Submittal of the site-selection
report to the President

Submittal of the license
application to the Nuclear
Regulatory Commission

Receipt of a construction
authorization from the
Nuclear Regulatory Commission

Start of construction

Start of phase 1 operations

Start of phase 2 operations

Second quarter 1988
Third quarter 1988
Fourth quarter 1989

Fourth quarter 1989
First quarter 1992
Fourth quarter 1991

First quarter 1992
First quarter 1993
First quarter 1993

Fourth quarter 1993

Fourth quarter 199A
Fourth quarter 1994

First quarter 1995

First quarter 1998

First quarter 1998
First quarter 2003
Second quarter 2006

Third quarter 1986
Third quarter 1986
Third quarter 1987

Third quarter 1988
Fourth quarter 1988
Second quarter 1989

Third quarter 1989
Third quarter 1989
Third quarter 1989

Third quarter 1990

Fourth quarter 1990
First quarter 1991

Second quarter 1991

Third quarter 1993

Third quarter 1993
First quarter 1998
First qiiarter 2001

*The schedule is given in calendar-year quarters.

"This schedule is based on a budget requirement of $725 million for fiscal
year 1988.

*^End of the testing necessary for the selection of the repository site and
the preparation of the draft environmental impact statement.

-8-

Provisions for greater involvement by the States and affected Indian
Tribes in the technical program.

The implementation of, and interactions with the Nuclear Regulatory
Commission on, a quality-assurance program that will fully satisfy
the Commission's requirements for the acquisition of data used in the
licensing process.

Interactions with the Nuclear Regulatory Commission on technical
issues, using available options (e.g., rulemaking) to resolve issues.

The implementation of a program of licensing topical reports, which
will allow the NRC staff to consider various issues before the sub-
mittal of the license application and should greatly reduce the
volume of material to be included in the application.

The implementation of the issue-resolution strategy, which is based
on the performance-allocation process requested by the Nuclear
Regulatory Commission.

The development and operation of a licensing support system that will
provide storage and retrieval for specified licensing information.

WASTE-ACCEPTANCE STRATEGY

The DOE has entered into contracts with the owners and generators of
spent nuclear fuel and high-level waste. ^^ The contract provides for the
DOE'S acquisition of title to the spent nuclear fuel and high-level waste,
transportation, and subsequent disposal. Under the contract, these services
are to be provided "after commencement of facility operations, not later than
January 31, 1998." The strategy preferred by the DOE to allow waste accept-
ance to begin by 1998 includes an integral MRS facility, which would also
achieve the broader goal of Improved operating efficiency for the system.

Without approval of the MRS proposal, the 5-year extension of the sched-
ule for the first repository would require a change in the waste-acceptance
strategy.

Some have suggested the option of using the Federal interim storage (FIS)
authorized by the Act. Such storage is allowed to accommodate 1900 metric
tons of uranium, or nearly as much as the first repository would have accepted
in its first 4 years of operation. However, this option must be triggered by
eacii utility that wishes to use Federal interim storage, justifying to the
Nuclear Regulatory Commission by 1990 why it could not provide adequate capa-
city for spent fuel in 1998 and beyond. The FIS option is also limited in
that the DOE cannot contract for such storage after January 1, 1990 (Section
136(a)(1) of the Act).

An illustrative waste-acceptance schedule that accounts for the rebase-
lined schedule for the first repository, a proposed schedule for the MRS

-9-

facility, and the new schedule for the second repository (discussed below) is
presented in Appendix F.

THE MRS FACILITY

As explained in the 1985 Mission Plan, an integrated MRS facility would
provide a facility, central to the majority of operating reactors, that
prepares spent fuel for emplacement in a repository; serves as the central
receiving station for the waste-management system; and, with a limited storage
capacity (15,000 metric tons of uranium), acts as a system buffer that would
allow continued waste acceptance regardless of changes in the schedule of
waste emplacement for the first several years of operation at the first repo-
sitory (see Appendix C for a more detailed description).

In comparison with other options, the greatest advantage of an MRS facil-
ity is that it would be an integral and productive component of the waste-
management system rather than a temporary reactor-specific expedient like
at-reactor storage. Another important consideration is the broadly shared
view of its feasibility. Studies have shown that such a facility could start
receiving spent fuel in 1998, at a rate initially exceeding that of phase 1
operation at the first repository, thus minimizing the effects of the resched-
uling of the first repository on utilities and their ratepayers.

As explained in Appendix C, the DOE has prepared a proposal for the
construction of an MRS facility and will submit this proposal to the Congress
as soon as practicable. To allay concerns that the MRS facility could become
a substitute for a permanent repository, whose development remains the highest
priority, the DOE will ask the Congress to limit the MRS storage capacity to
15,000 metric tons of uranium and to specify that the MRS cannot start receiv-
ing spent fuel until a construction authorization for the repository has been
received from the Nuclear Regulatory Commission.

DELAY OF THE SECO^fD REPOSITORY

On May 28, 1986, the Secretary of Energy announced his decision that it
would be prudent to postpone site-specific activities for the second reposi-
tory. In conjunction with taking steps to implement this decision, the DOE
subsequently explained that a Mission Plan amendment detailing the basis for
the decision would be submitted to the Congress for its consideration.

As explained in more detail in Appendix D, the Secretary's decision was
based on a number of factors, including declining projections of the rates at
which spent fuel will be discharged from commercial nuclear power plants,
progress in siting the first repository and confidence in finding suitable
sites among the three sites approved by the President for site characteriza-
tion, the advantages to be gained from the experience of the first repository,
the expectation of Congressional approval for the MRS facility, and fiscal
management and responsibility.

-10-

The DOE wishes to emphasize that even the lowest current projections of
spent-fuel generation (see Appendix E) indicate that the second repository
will be needed. It therefore remains firmly committed to a two-repository
system and, to this end, intends to continue with a technical progreun for the
second repository. As described in more detail in Appendix D, current plans
for this program include non-site-specific studies of potential host rocks,
the development of analytical approaches for the evaluation of non-site-
specific geologic settings in terms of long-term performance, and an enhanced
program of international cooperation.

The specific requirement related to the second repository is stated in
the Act in terms of the maiximum amount of spent nuclear fuel that the Nuclear
Regulatory Commission can allow to be emplaced in the first repository until a
second repository is in operation. The Act sets this figure at 70,000 metric
tons of uranium. Under the revised schedule for the first repository, this
limit would be reached only after the year 2025 if the annual rate of waste
emplacement is 3000 metric tons of uranium. The actual schedule for the
second repository, however, is yet to be determined; it will depend on more-
refined estimates of spent-fuel generation rates, the time needed for the
first repository to reach the limit of 70,000 metric tons of uranium, and the
time needed to develop the second repository.

The experience of siting the first repository suggests that site-specific
screening leading to the identification of potentially acceptable sites should
start about 25 years before the start of waste acceptance for disposal. Thus,
to have the second repository available by about 2025, site-specific studies
need not start until the middle to late 1990s.

With a later decision on the siting of the second repository, a more
appropriate scale of operations for that facility can be established. In ad-
dition, a longer period of time between the startup of the two repositories
will permit more experience and knowledge gained in the development and opera-
tion of the first repository to be used for the second repository, providing
the opportunity for potential technical refinements and cost savings.

CONSULTATION AND COOPERATION

Section 117(c) of the Act requires the DOE to seek to enter into and to
negotiate written consul tat ion-and-cooperat ion (C&C) agreements with eligible
States and affected Indian Tribes within 60 days of the approval of a candi-
date site for characterization (which occurred on May 28, 1986, for the first
repository) or earlier if requested by an eligible State or affected Indian
Tribe. These agreements are to specify procedures to be followed in areas of
mutual concern, such as protecting the health and safety of the public, iden-
tifying and mitigating the socioeconomic and environmental impacts of a repos-
itory, and educating the public about waste management and disposal. The
agreements are to specify procedures for the sharing of technical data and
expertise, determining the need for and requesting financial assistance, and
mechanisms for resolving conflicts.

-11-

Negotiations for consul tatlon-and-cooperation agreements

The DOE has been involved in both formal and informal C£<C negotiations
with the State of Washington, the Confederated Tribes of the Umatilla Indian
Reservation, the Yakima Indian Nation, and the Nez Perce Indian Tribe.

Informal negotiations with the State of Washington commenced before the
enactment of the Act, in 1979, with the first formal negotiation session
taking place on July 27, 1983. In December 1983, the State negotiating team
presented a preliminary draft of a C&C agreement to the State Nuclear Policy
and Review Board and the State Nuclear Advisory Council. During the 1984
legislative session, the legislature reviewed the draft and passed a law pro-
viding public hearings on, and legislative approval of, any draft agreement.
In the fall of 1984, a draft C&C agreement was developed, with mutual concur-
rence on all provisions except liability and defense waste. A report on the
status of C&C negotiations with the State of Washington was sent to the
Congress on September 25, 1984. On August 25, 1986, the State of Washington
requested an informal meeting with the head of the DOE negotiating tecim to
discuss the C&C process. This meeting was held on October 9, 1986.

Three negotiating sessions with the Confederated Tribes of the Umatilla
Indian Reservation (CTUIR) were conducted between August 1985 and October

1985. These initial negotiating sessions were suspended at the request of the
CTUIR because of pending Tribal elections. At the request of the CTUIR, the
DOE resumed C&C negotiations in July 1986. A fifth negotiating session was
held in September 1986, and a sixth occurred in November 1986.

On May 23, 1983, the Yakima Indian Nation requested formal negotiations,
which began on July 15, 1983. Negotiations were suspended, however, pending
the conclusion of an agreement with the State of Washington.

In June 1986, the DOE began informal discussions on procedural arrange-
ments with the Nez Perce Indian Tribe. A more formal discussion on C&C proce-
dures was conducted in August 1986. '

The State of Nevada and the State of Texas have not requested C&C
negotiations.

To satisfy the specific requirements of the Act, the DOE, on July 25,

1986, sent letters to the three States with candidate sites for the first
repository and three affected Indian Tribes, expressing its desire to begin
the process that would lead to signed C&C agreements. The DOE also expressed
its intention to meet with the representatives of those States and Tribes to
discuss the C&C activities to date, review the scope and the parameters of C&C
agreements, and discuss provisions that might be common to all such agree-
ments. The affected parties, however, responded that they preferred individ-
ual meetings. Accordingly, on November 19, 1986, the DOE wrote to each of the
three States and the three affected Indian Tribes, requesting that individual
negotiations begin or resume.

The Act also directs the DOE to submit to the Congress a report on the
status of negotiations leading to C&C agreements if such agreements are not
completed within 6 months after notification that candidate sites have been

-12-

approved for characterization. The report is to explain why CS<C agreements
have not been concluded. The Act also specifies that the States and affected
Indian Tribes are to have an opportunity to review and comment on this report,
and their comments are to be included in the DOE's submittal to the Congress.
On December 23, 1986, the DOE sent to the States and affected Indian Tribes
copies of the reports that were prepared for the Congress and asked for their
comments. As soon as comments are received and addressed, the reports will be
sent to the Congress.

Initiatives for consultation-and-cooperation agreements

To date, no formal CS<C agreement has been concluded. The DOE recognizes
that, given the nature of the program and the reality that the perspectives of
the States and affected Indian Tribes often differ from its own, formal agree-
ments may be difficult to reach. At the same time, the DOE also recognizes
that the success of the waste-management program may largely depend on the
success of institutional relations as well as interactions with the public.
The DOE therefore plans to increase its efforts to improve productive institu-
tional relations and to negotiate formal C&C agreements. To this end, the DOE
recently invited the eligible States and affected Indian Tribes to meet for
the purpose of arriving at a mutually acceptable definition of consultation
and cooperation. The participants in this meeting agreed that a mutually
acceptable definition would be very useful but felt that it could not be
developed in time for inclusion in this Mission Plan eunendment. Before sub-
mitting the Mission Plan amendment to the Congress, the DOE looks forward to
meeting with the States and affected Indian Tribes to continue discussion.

In the meantime, the DOE is considering a number of new initiatives to
encourage C&C negotiations. One of these is the concept of generic negotia-
tions with all eligible States and affected Indian Tribes on selected topical
issues; the DOE also plans to adopt a procedure for adding to previously
negotiated agreements any CS.C provision that is later negotiated with a par-
ticular State or affected Indian Tribe; and the DOE is prepared to seek the
services of third-party negotiators.

FINANCIAL ASSISTANCE AND OTHER MEASURES

Section 116(c) of the Nuclear Waste Policy Act (the Act) contains pro-
visions for financial assistance. In particular, it requires that financial
assistance be provided to (1) States containing sites approved for character-
ization (i.e., candidate sites) and (2) the State containing the site selected
for the development of a repository. In the first case, the assistance is for
such purposes as monitoring, testing, or evaluation activities with respect to
site characterization; providing information to its residents; and reviewing
and commenting on documents. In the State chosen for repository development,
the assistance is to mitigate the social, economic, environmental and other
impacts of repository development and operation; this assistance is to start
within 6 months after receiving a construction authorization from the Nuclear
Regulatory Commission. Furthermore, in both of the above cases, the State and
the unit of general local government in which the candidate site or the repos-
itory site is located are to receive each fiscal year an amount equal to the

-13-

taxes they would receive if site-characterization activities or the repository
were taxed like other real property or industrial activities. Similar provi-
sions are made in Section 118(b) for affected Indian Tribes and in Section
141(f) for units of local government in the vicinity of an MRS facility.

It is possible, however, that the public investigation and review carried
out by the DOE in cooperation with the States and affected Indian Tribes will
show that a waste-management facility may lead to special socioeconomic bur-
dens that were not contemplated when the Act was passed or are difficult to
quantify, extend beyond local jurisdictions, or occur earlier than foreseen in
the Act. The Congress may therefore wish to consider additional financial
assistance to reimburse reasonable and direct expenses incurred.

Where appropriate, the DOE will take actions, available under the Act, to
encourage the diversification of the local industrial base, thus contributing
to the stabilization of the socioeconomic environment. To the extent practic-
able, the DOE will rely on the local and regional labor force for both con-
struction and operation labor. Whenever feasible, training programs will be
provided through State and local educational institutions to train local resi-
dents for the various jobs that will be available at the waste-management
facility.

The DOE will also expand information and public education prograuns to
acquaint the public with the management of radioactive waste and to address
concerns related to such subjects as safety and environmental impacts. In
defining the scope and the format of such programs, the DOE will consult with
the host State and the local communities and seek to undertake activities
jointly.

-14-

REFERENCES

1. U.S. Department of Energy, Mission Plan for the Civilian Radioactive
Waste Management Program, DOE-RW-0005, Washington, D.C., 1985, Vol. I.

2. U.S. Department of Energy, Annual Report to Congress, March 1986.

3. U.S. Department of Energy, Recommendation by the Secretary of Energy of
Candidate Sites for Site Characterization for the First Radioactive-Waste
Repository, DOE/S-00A8, Washington, D.C., 1986.

U. U.S. Department of Energy, Environmental Assessment, Davis Canyon Site,
DOE/RW-0071, Washington, D.C., 1986.

5. U.S. Department of Energy, Environmental Assessment, Deaf Smith County
Site, DOE/RW-0069, Washington, D.C., 1986.

6. U.S. Department of Energy, Environmental Assessment, Reference Repository
Location. Hanford Site, DOE/RW-0070, Washington, D.C., 1986.

7. U.S. Department of Energy, Environmental Assessment, Richton Dome Site,
Mississippi, DOE/RW-0072, Washington, D.C., 1986.

8. U.S. Department of Energy, Environmental Assessment, Yucca Mountain Site,
Nevada Research and Development Area, Nevada, DOE/RW-0073, Washington,
D.C., 1986.

9. U.S. Department of Energy, A Multiattribute Analysis of Sites Nominated
for Characterization for the First Radioactive-Waste Repository — A
Decision-Aiding Methodology, DOE/RW-007^, Washington, D.C, 1986.

10. U.S. Department of Energy, Draft Environmental Assessment, Lavender
Canyon Site. Utah. DOE/RW-0009, Washington, D.C, 1984.

11. U.S. Department of Energy, Draft Environmental Assessment. Davis Canyon
Site. DOE/RW-0010, Washington, D.C, 198A.

12. U.S. Department of Energy, Draft Environmental Assessment, Cypress Creek
Dome Site, Mississippi. DOE/RW-0011, Washington, D.C, 1984.

13. U.S. Department of Energy, Draft Environmental Assessment. Yucca Mountain
Site. Nevada Research and Development Area. Nevada, DOE/RW-0012,
Washington, D.C, 1984.

14. U.S. Department of Energy, Draft Environmental Assessment, Richton Dome
Site, Mississippi. DOE/RW-0013, Washington, D.C, 1984.

15. U.S. Department of Energy, Draft Environmental Assessment, Deaf Smith
County Site, DOE/RW-0014, Washington, D.C, 1984.

16. U.S. Department of Energy, Draft Environmental Assessment. Swisher County
Site, Texas, DOE/RW-0015, Washington. D.C, 1984.

-15-

17. U.S. Department of Energy, Draft Environmental Assessment, Vacherie Dome
Site, Louisiana, DOE/RW-0016, Washington, D.C., 1981*.

18. U.S. Department of Energy, Draft Environmental Assessment, Reference
Repository Location, Hanford Site, DOE/RW-0017, Washington, D.C., 1984.

19. U.S. Department of Energy, A Multiattribute Analysis of Sites Nominated
for Characterization for the First Radioactive-Waste Repository — A
Decision-Aiding Methodology. DOE/RW-0074, Washington, D.C., 1986,
Appendix H.

20. U.S. Environmental Protection Agency, "Environmental Standards for the
Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive
Wastes," Code of Federal Regulations, Title W, Part 191, 1985.

21. U.S. Nuclear Regulatory Commission, "Disposal of High-Level Radioactive
Wastes in Geologic Repositories," Code of Federal Regulations, Title 10,
Part 60.

22. U.S. Department of Energy, Issues Hierarchy for a Mined Geologic Disposal
System, DOE/RW-0101, Office of Geologic Repositories, Washington, D.C.,
1986.

23. Summaries of NRC/DOE meetings on subsystem performance allocation, April
17, 1985, and September 26-27, 1985, Silver Spring, Maryland.

24. U.S. Department of Energy, Transportation Business Plan, DOE/RW-46,
Washington, D.C., 1986.

25. U.S. Department of Energy, Transportation Institutional Plan, DOE/RW-94,
Washington, D.C., 1986.

26. U.S. Department of Energy, "Proposed General Guidelines for the
Recommendation of Sites for Nuclear Waste Repositories," Federal
Register. Vol. 48, p. 5670, February 7, 1983.

27. U.S Department of Energy, Mission Plan for the Civilian Radioactive Waste
Management Program, DOE/RW-0005 draft, Washington, D.C., 1984.

28. U.S. Department of Energy, Project Decision Schedule, DOE/RW-0067,
Washington, D.C., 1986.

29. U.S. Department of Energy, "General Guidelines for the Recommendation of
Sites for the Nuclear Waste Repositories," 10 CFR Part 960, Federal
Register. Vol. 49, No. 236, p. 47714, December 6, 1984.

30. U.S. Department of Energy, "Notice of Inquiry and Request for Public
Comment on an Equitable Allocation of Fees for Defense Waste Disposal."
Federal Register, December 2, 1986.

31. U.S. Department of Energy, "Standard Contract for Disposal of Spent
Nuclear Fuel and/or High-Level Radioactive Waste," Federal Register, Vol.
48, No. 75, p. 16590, April 18. 1983.

-16-

Appendix A
ACHIEVEMENTS IN THE FIRST-REPOSITORY PROGRAM

Significant progress has been achieved in the program for the first
repository through the selection of candidate sites for characterization and
advances in technical planning. These developments have affected the deci-
sions and plans described in this Mission Plan amendment. This appendix
explains the basis for recommending the candidate sites and the most signif-
icant advances in technical planning.

A.l SELECTION OF CANDIDATE SITES FOR CHARACTERIZATION

The siting process established by the Act

The Act established a step-by-step process for siting the nation's first
geologic repository. The first step, the identification of potentially
acceptable sites for the first repository, was completed by the DOE in Febru-
ary 1983. The second step, the development of siting guidelines, was com-
pleted on November 30, 1984, after extensive public review and comment and
concurrence by the Nuclear Regulatory Commission. (The guidelines were pub-
lished on December 6, 198A, as 10 CFR Part 960.^)

The third step in the process specified by the Act is the nomination of
five sites as suitable for characterization as candidate sites. Each nomina-
tion is to be accompanied by an environmental assessment that evaluates the
site against the siting guidelines. After the nominations, as the fourth
step, the Secretary of Energy is to recommend three of the nominated sites to
the President for approval for characterization that is to include the drill-
ing of exploratory shafts and underground testing at the proposed depth of the
repository. This step begins when the recommendation has been approved by the
President. After site characterization has been completed and an environmen-
tal impact statement has been prepared, one of the three sites is to be recom-
mended for development as a repository. This recommendation will be made by
the President to the Congress.

Nomination and recommendation for characterization

Draft environmental assessments (EAs) were prepared for each of the nine
sites identified as potentially acceptable for the first repository. These
documents ,^~^^ issued for public review and comment on December 20, 1984,
proposed that the following five sites be nominated: Davis Canyon, Utah; Deaf
Smith County, Texas; Hanford, Washington; Richton Dome, Mississippi; and Yucca
Mountain, Nevada. In addition to requesting written comments, the DOE con-
ducted an extensive program of consultation and outreach, with 50 briefings
and 19 public hearings held in 7 States. The comments that were received
(more than 20,000 altogether) led to extensive revisions of the EAs and to the
development of the decision-aiding methodology that was used in identifying
preferred sites for characterization.

-17-

Having considered the coimnents on the draft EAs as well as the available
evidence, evaluations, and findings in the revised EAs, the Secretary of
Energy determined that the five sites proposed for nomination in the draft EAs
should be formally nominated. The nominations were accompanied by final
EAs. ^^"^5 The Secretary then recommended to the President that the Deaf Smith
site (Texas), the Hanford site (Washington), and the Yucca Mountain site
(Nevada) be characterized as candidates for the first repository. '■° This
recommendation was approved by the President on May 28, 1985. The Secretary
also made the preliminary determination, required by the Act, that the
recommended sites are suitable for development as repositories. The general
locations of these sites are shown in Figure A-1.

The events summarized above represent major milestones in the program for
the first repository. They represent years of work in gathering and analyzing
geologic and environmental data from site studies that began before the enact-
ment of the Act. Each of the environmental assessments consists of some 1000
pages of information and analyses condensed from hundreds of supporting
documents .

To facilitate the review of the environmental assessments, all of the
supporting documents for a particular assessment were provided to the host
State, affected Indian Tribes, and the Nuclear Regulatory Commission; further-
more, all of them were made available for review by the public in the DOE
public reading rooms as well as local libraries. In the case of the Hanford
site, for example, all of these documents could be seen at 15 libraries in
Washington, 4 public libraries in Idaho, and 2 libraries in Oregon. With more
than 100,000 pages for each set distributed and 75 sets in all, the DOE has
provided a substantial and adequate information base for the reviewers of the
environmental assessments.

The basis for the selection of candidate sites

The candidate sites approved for characterization were selected from a
set of five sites that were nominated only after passing many increasingly
stringent tests in a site-screening process that consisted of several steps
and began in the late 1970s. The completion of each step increased the basis
for confidence that the remaining sites are technically sound. Descriptions
of the screening and nomination processes for each candidate site can be found
in the final EAs.11-15

The process to be used in recommending sites for characterization is spe-
cified by the DOE siting guidelines in Section 960.3-2-3, which requires the
recommendation decision to be based on the available geophysical, geologic,
geochemical, and hydrologic data; other information; and the evaluations,
reported in the environmental assessments, of the sites against the siting
guidelines, as required by the Act. The guideline provisions for the diver-
sity of geohydrologic settings and diversity of rock types are to be applied
in order to determine the final order of preference.

To aid in identifying preferred sites for characterization, the DOE
developed and applied a formal decision-aiding methodology^^ that is based on
well-established techniques of decision analysis. The decision-aiding
methodology was an elaboration, developed in response to comments, of one of

-18-

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-19-

the methods used in the draft environmental assessments to identify preferred
sites for recommendation. The DOE also accepted the recommendation of some
commenters to submit the revised methodology for review by the National
Academy of Sciences.

Accordingly, both the decision-aiding methodology and the proposed ap-
proach to its application were reviewed by the Board on Radioactive Waste
Management of the National Research Council (the principal operating agency of
the National Academy of Sciences and the National Academy of Engineering). In
its final comments of April 10, 1986 (reproduced in full in Appendix H of
Reference 17), the Board said that it "...believes that the multiattribute
utility method used by DOE is a satisfactory and appropriate decision-aiding
tool" and is "a useful approach for stating clearly and systematically the
assumptions, judgments, preferences, and tradeoffs that must go into a siting
decision." The letter goes on to say that "in its review of the implementa-
tion of the site-ranking methodology, then, the Board finds much to praise."
The Board affirmed that the methodology is best applied only as a decision-
aiding tool and agreed that "additional factors and judgments are required to
make final decisions about which sites to characterize."

The Board chose not to review the final recommendation of sites for char-
acterization and chose not to have access to the DOE's rankings on preclosure
factors. Furthermore, the Board expressed disappointment that the DOE did not
follow its recommendation to use independent experts in the assessment process
as well as the review of the process, but added that it "has seen nothing to
indicate bias in the implementation of the method."

Documented in detail in a report entitled Multiattribute Utility Anal-
ysis of Sites Nominated for Characterization for the First Radioactive-Waste
Repository, ^^ this utility-estimation method allows a complex set of objec-
tives to be divided into component parts for evaluation and then to be recom-
bined in a logical manner. As such, this methodology is well suited to the
first step of the decision process where the separate postclosure and preclo-
sure objectives are considered individually and then collectively. The
methodology is constructed to elucidate the uncertainties inherent at this
state of the siting process, and it is explicit in identifying the relative
advantages and disadvantages of the sites. In addition to technical data and
the judgment of technical experts, these factors include value judgments by
policymakers.

In applying the methodology, the DOE identified two principal objectives
for the postclosure period: (1) minimize the adverse health effects from the
repository during the first 10,000 years after closure and (2) minimize the
adverse health effects from the repository during the period 10,000 to 100,000
years after closure. For both objectives, the performance of the sites was
measured against the limits established by the Environmental Protection Agency
(EPA) in 40 CFR Part 191 for cumulative releases of radionuclides to the
accessible environment. The results showed that all of the five nominated
sites would be expected to perform extremely well in isolating waste from the
environment: even the highest release (for the lowest-ranked site) under
expected repository conditions was estimated to be 500 times lower than the
EPA limit, and the small differences among sites were judged to have no prac-
tical significance.

-20-

For evaluating performance before closure, four objectives were
identified: (1) minimize adverse impacts on health and safety before closure,
(2) minimize adverse environmental impacts, (3) minimize adverse socioeconomic
impacts, and (4) minimize economic costs. Eight more-detailed objectives were
defined for the first objective, three for the second objective, one for the
third objective, and two for the fourth objective. The results show that all
of the sites are expected to perform well. When performance against all 14 of
these factors was aggregated, it was found that the Yucca Mountain site in
Nevada would be expected to cause the fewest impacts, followed by the Richton
site (Mississippi), the Deaf Smith site (Texas), the Davis Canyon site (Utah),
and the Hanford site (Washington). However, this ranking is dominated by
undiscounted costs — a very uncertain basis for decisionmaking at this stage in
the design of the overall waste-management system. If all the performance
objectives except economic costs are aggregated, the Hanford site shows the
fewest impacts, followed by Yucca Mountain, Deaf Smith, Richton, and Davis
Canyon .

As described in the report^" documenting the Secretary's recommenda-
tion, the three sites recommended and approved for characterization also pro-
vide the maximum diversity of geohydrologic settings and rock types. Host-
rock diversity protects against the occurrence of deficiencies or failures
that are inherent in a particular type of rock and hence would be common to
all sites in that rock. It also provides an opportunity to consider, during
the site-selection process, the advantages of alternatives in the design of
the repository, the design of the "waste package" (i.e., the waste form, any
containers used to provide containment for the waste, and the packing material
surrounding the containers), options for maintaining waste retrievability
(which is required by the Nuclear Regulatory Commission for up to 50 years
from the start of waste emplacement), and alternatives in allocating levels of
performance to the natural and the engineered barriers of the repository (this
performance-allocation process is discussed in the next section). The need to
consider rock diversity was also acknowledged by the Board on Radioactive
Waste Management of the National Academy of Sciences: "...There are other
factors that must be taken into account in the final decision to select three
sites for characterization. These include the diversity of rock types...."

The insights obtained through the decision-aiding methodology, the per-
formance predicted by the methodology, and the potential advantages of diver-
sity led to the determination that the three sites recommended and approved
for characterization offered, on balance, the most advantageous combination of
characteristics and conditions for the successful development of repositories
at such sites. The DOE believes that these sites are indeed suitable for a
repository, recognizing that the demonstration of suitability must await the
results of site characterization and full performance assessments against
regulatory requirements.

IKi^Jis 2SSQC8 HBIUmeilf MIS -m MSUE-RESOLUTION STRATEGY

To guide the process of site characterization and to ensure that all the
data required for site selection and licensing will be available when needed,
the DOE has developed two basic organizing principles. The first of these

-21-

principles is the "issues hierarchy," which states the questions about the
performance of the repository system that must be resolved to demonstrate com-
pliance with the applicable Federal regulations. The second principle is a
strategy for resolving each issue. In addition to discussing these princi-
ples, this section also presents a brief description of current plans for
site-characterization activities at each candidate site.

The i««ueg hierardftr

The issues hierarchy, which is described in more detail in a recent DOE
report, 1° is a three-tier framework that lays out what must be known before a
site can be selected and licensed. It is based on the issues-hierarchy
concept presented in the 1985 Mission Plan^^ (Volume I, Part II, Chapter 1),
The hierarchy in the 1985 Mission Plan was modified in order to make explicit
the requirements of the EPA standards^O in 40 CFR 191 and the NRC technical
criteria^! in 10 CFR Part 60, to accommodate the performance-allocation
process described below, and to accommodate different categories of issues
(performance, design, and characterization).

fiach tier contains progressively more detail than the tier above it. The
highest tier conaiats of the four "key isauea." Stated as questions , they are
derived from the system guidelines in the DOE siting guidelines; they there-
fore embody the principal requirements established by the regulations govern-
ing repooitories . Each of the key issues is followed, in the second tier, by
three groups of issues related to (I) performance, (2) design, and (3)
characterisation. These issues expand on the requirement stated in the key
issue they represei>t. When each group of issues was constructed, an effort
was Btade to include in the group all the questions that must be answered to
r— orjjre the key issue.

The third tier eonalata of "Information needs," which are stated as
requirements for technical information, rather than aa questions. In con-
structing the information needs, the DOE attempted to list all the Important
information necessary for resolving the issues.

The issues hierarchy is useful in site characterization because it
establishes a framework for developing the test program and for explaining why
the test program is adequate and necessary. The test program will be adequate
if it adequately addresses all the information needs in the third tier of the
issues hierarchy. And the necessity for any particular planned test can be
established by determining its role in supplying an information need.

The issue-resolution strategy

To resolve the issues in the issues hierarchy, the DOE has adopted a
general "issue-resolution strategy" that guides the development of specific
plans for resolving each issue. This general strategy la a procedure
consisting of as many as 12 steps; it Is outlined in Figure A-2. Three of the
steps, applied separately to each issue, lead to the identification of the
information necessary to resolve the issue. Once the information needs have
been identified, another step leads to the development of plana for acquiring
that information. The reasoning used in carrying out those four steps is,
then, the rationale for the particular site-characterization activities that

-22-

IDENTIFY REGULATORY
REQUIREMENTS

DEFINE ISSUES

ESTABLISH THAT INFORMATION
NEEDS ARE SATISFIED

USE INFORMATION TO
RESOLVE ISSUES

DOCUMENT RESOLUTION

Figure A-2. Issue-resolution strategy.

-23-

are intended to resolve the issue. The rationale and the plans for these
activities will be described in the site-characterization plans.

Issue identification. The first section of the strategy, labeled "issue
identification" in Figure A-2, consists of three steps. Step 1 identifies the
regulatory requirements, and from these requirements the issues are derived
(step 2). Also necessary to proceed to the formulation of specific plans for
the resolution of each issue is a detailed description of the repository sys-
tem (step la).

Performance allocation. The second section of the strategy, called
"performance allocation," consists of the steps that provide the rationale for
the establishment of particular site-characterization activities. The
performance-allocation concept was proposed by the Nuclear Regulatory Commis-
sion and developed in formal discussions, documented in a written agreement,
between the DOE and the Commission. ^2

The steps in performance allocation were defined with several objectives
in mind: to provide specific kinds of information, requested by the Nuclear
Regulatory Commission, to provide uniform guidance for site characterization
at all candidate sites, and to ensure program-wide consistency in implementing
the performance-allocation process.

The first step in performance allocation (step 3 in Figure A-2) is the
adoption of a "licensing strategy." This step uses available information to
develop, for planning purposes, a statement of the site features, engineered
features, conceptual models, and analyses that the DOE expects to use in re-
solving the issue. The statement is called a "licensing strategy" because the
combined statements developed in step 3 for all the issues are the basis for
the current DOE plans to show compliance with regulations. In the site char-
acterization plans, the licensing strategy is preliminary: not enough
information is available for a definitive plan, because site characterization
is only beginning. But the strategy is sufficiently developed to guide
planning for tests and analyses and to make clear what activities are neces-
sary and whether they will be sufficient to resolve the issue.

The principal product of step 3 is a statement of the repository-system
components on which the DOE currently intends to rely in resolving the issue:
if these components perform as the licensing strategy expects them to perform,
the issue is likely to be resolved. The statement may also identify, for each
component, specific features that the DOE expects will contribute to the
performance of the component and hence to the resolution of the issue.

Step 4 carries the strategy further by establishing "performance
measures" for the components identified in step 3. These measures are physi-
cal quantities that describe the performance of the component in meeting the
licensing strategy. These measures may be directly measurable quantities, or
they may be quantities derived from other quantities that are more directly
measurable.

Each performance measure has a "goal." The goal is not a target that the
performance measure must attain if the repository is to perform properly, and
therefore it is not a "goal" in the sense that it has to be met. It is simply

-24-

a guide for developing a testing program — a guide that states the licensing
strategy quantitatively and can be changed or even discarded once the testing
program has been established. The goals are, therefore, guides for deciding,
in the later steps of performance allocation, what information must be pro-
vided by the testing program. As a further guide for testing, step 4 accom-
panies each performance goal with an "indication of confidence," which
expresses, as quantitatively as possible, the confidence with which the
licensing strategy desires the testing program to show that the performance
goal has been attained.

The performance-allocation process then proceeds to develop specific
requirements for future work. Step 5 identifies "information needs," which
state, for each issue, the categories or types of information needed to
resolve the issue. Part of the development of an information need is the
identification of the "parameters" needed to evaluate the performance meas-
ures. As already mentioned, many performance measures (e.g., the time of
ground-water travel through a particular geohydrologic unit) are not directly
measurable quantities. However, they can usually be expressed by an equation
in which quantities that can be measured more directly (e.g., hydraulic con-
ductivity) appear as parameters. Step 5 furthers the development of plans for
testing by listing these parameters. It also assigns to each parameter an
acceptable or desirable value, called a "goal" in Figure A-2. Like the per-
formance goals, these parameter goals are not values that must be achieved by
the repository system. They are statements of the values that the licensing
strategy expects the parameters to take. Step 5 also specifies where possible
an indication of confidence for each parameter. Like the indicators for per-
formance goals, these indicators are seldom numerically rigorous, but are as
quantitative as possible.

Step 6 in Figure A-2 expresses the use of the information needs, as
expressed in detail in step 5, to define the activities that will produce the
needed information. The lists of parameters or other information that must be
obtained, together with the supporting requirements for achieving confidence
in this information, are the basis for a testing or analysis strategy.

Investigations . After the performance allocation has produced the plans
for resolving issues, the issue-resolution strategy proceeds with the
investigations called for in the plans (step 7 in Figure A-2). The analyses
of the results of the investigations (step 8) begin as soon as the results are
available and continue throughout the site-characterization period and
beyond. These analyses include all the evaluations needed to resolve the
issues. The collection of needed information continues until the information
needs have been satisfied (step 9). The collected information is then used in
a concluding set of analyses that finally resolve the issues (step 10), and
the resolution is documented (step 11).

Application of the issue-resolution strategy. The entire issue-
resolution strategy is intended to be iterative. The licensing strategy as
well as the goals and the indications of confidence for the performance
measures and related parameters may be changed as new information becomes
available; if they are changed, the steps that follow in the issue-resolution
strategy will also be reexamined and their products revised. The analyses of
the results of the investigations (step 8) may produce new understandings that

-25-

require rethinking of earlier steps. Any of the steps may lead to revisions
of earlier steps.

This iterative process will furnish a vehicle by which the DOE will
communicate to the Nuclear Regulatory Commission, the States, and affected
Indian Tribes the approaches that it intends to use in resolving the issues in
the issues hierarchy. As already mentioned, the current versions of the stra-
tegies are preliminary and intended simply as a basis for initial planning;
they are expected to be the primary focus for comments and discussions between
the OOE and the reviewers of the site-characterization plans.

The rationale for future changes to the issue-resolution strategies will
be documented in semiannual site-characterization progress reports, which will
also report the results of site-characterization studies. The reviews,
interactions, and reporting will continue until the license application is
submitted to the Nuclear Regulatory Commission.

A. 3 PLANS FOR SITE-CHARACTERIZATION ACTIVITIES

To demonstrate that a candidate site is suitable for a repository and
meets the siting guidelines (10 CFR Part 960),^ it is necessary to conduct a
program of site characterization. For the first repository, this program
began when the President approved the sites recommended for characterization
(May 28, 1986). As described in the environmental assessments for the can-
didate sites, ^l"'-^ site characterization consists of surface-based
investigations (e.g., seismic surveys), investigations conducted by means of
deep and shallow boreholes, laboratory tests, and, most important, tests
conducted in the host rock at the proposed depth of the repository. The
latter can be performed only by constructing an exploratory-shaft facility.

Before proceeding to sink shafts at any site, the DOE must submit, for
review and comment, a site-characterization plan (SCP) to the Nuclear
Regulatory Commission, the Governor and legislature of the State, the affected
Indian Tribes, and the public. This plan will describe the investigations and
tests identified as necessary by the issue-resolution strategy discussed in
the preceding section. The sinking of shafts will start after public hearings
have been held in the vicinity of the site.

The exploratory-shaft facility at each candidate site will consist of two
exploratory shafts, a tunnel that connects the shafts, other tunnels and
underground rooms for testing, and associated surface facilities. Both shafts
will be sunk at the same time or one after the other, depending on the site.
The shafts will be outfitted to support the ventilation system; the under-
ground utility, safety, and communication needs; and the conveyances for mined
rock, personnel, and materials. The development of the underground workings
will start as soon as the first shaft is sunk to full depth and is suffi-
ciently equipped. As stated in the 1985 Mission Plan,!^ the DOE intends to
use the exploratory shafts during the construction of the repository and is
evaluating the most cost-effective use of the shafts in the operating
repository.

-26-

Testing will be conducted in two phases. The first phase, construction
testing, is defined as the tests and investigations starting with shaft con-
struction and continuing until the underground connection of the shafts is
completed. The second phase, in-situ testing, will start at the completion of
constraction testing and continue until sufficient data have been collected.
These tests will concentrate on characterizing the rock mass; they will assess
in-situ stress, permeability, thermomechanical parameters, geochemical proper-
ties, thermal properties, heat dissipation, and the like. More-detailed
descriptions of the testing program can be found in the environmental assess-
ments for the candidate sites . ^ '■"'-■'

The testing will produce two compilations of data. The first will
address the site-suitability requirements of the siting guidelines and will be
used for the preparation of the draft environmental impact statement; the sec-
ond will address the license-application requirements of the Nuclear Regula-
tory Commission. For the most part, the data for both compilations will be
collected from the same tests with different data-cutoff dates.

The issue-resolution strategy and more advanced design studies have
resulted in major changes in the plans for the exploratory-shaft program at
each candidate site. The revised plans are briefly reviewed below. The
effects of these changes on the schedule for the first repository are dis-
cussed in Appendix B.

Plans for the Hanford site (basalt)

At the Hanford site, the sinking of the shafts will be preceded by a
large-scale hydrologic testing program to measure potential fracturing between
aquifers. Portions of this program must precede the excavation of exploratory
shafts because drilling to a depth of more than 600 feet (i.e., the top of the
basalt formation) may interfere with the hydrologic testing.

According to current plans for the Hanford site, one of the exploratory
shafts will have an inside finished diameter of 6 feet; the other shaft is
expected to have an inside diaimeter of 10 to 12 feet, to satisfy the site-
characterization needs identified by the issue-resolution strategy. The 1985
Mission Plan reported that both shafts would be 6 feet in diameter. Both
shafts will be sunk to a depth of approximately 3400 feet, and both will be
lined to a depth of 3300 feet with a steel liner equipped with portholes for
testing. The shafts will be excavated by drilling. The design requirements
for the exploratory-shaft facility are being revised to include the latest
criteria for quality assurance, testing flexibility, and licensing.

Underground drift excavations are expected to be as much as 3A00 feet of
tunneling rather than tha 1500 feet reported in the 1985 Mission Plan.'-'
Concurrently with the final drifting, in-situ testing at a depth of 3100 feet
will begin.

Plans for the Yucca Mountain site (tuff)

It is currently expected that both of the exploratory shafts at Yucca
Mountain will have finished inside diameters of 12 feet rather than 6 and 12
feet as reported in the 1985 Mission Plan.'-' Both shafts will be eiccavated

-27-

by conventional drilling-and-blasting methods, and both v/ill be lined with
concrete for their full length. The first shaft will extend to 1450 feet,
below the depth proposed for the repository (1020 feet); it will have break-
outs for testing at the 580-, 1020-, and 1400-foot levels. Extending the
shaft to a depth of 1450 feet will allow the DOE to examine the geologic
formation that lies below the formation proposed for the repository and
consist of rock with somewhat different properties. The second shaft will
extend only to the main breakout level at 1020 feet. Design requirements for
the exploratory-shaft facility are being revised to include the latest
criteria for quality assurance and licensing.

Most of the testing will be conducted from one of the shafts in the main
testing area at the 1020-foot level. The main testing area is expected to be
much larger than that reported in the 1985 Mission Plan: approximately 9600
versus 1250 linear feet. This will allow the DOE to explore geologic features
within and around the area considered for the repository.

Plans for the Deaf Smith site (salt)

The sizes of the exploratory shafts at the Deaf Smith site are the same
as those reported in the 1985 Mission Plan: both shafts will have a finished
inside diameter of 12 feet. Both shafts will be excavated by conventional
methods (drilling and blasting) to a depth of 2600 feet and will require
ground freezing before excavation to 1100 feet. They will be lined with
concrete and steel, either to the full depth or to the bottom of the lowest
major aquifer. The shaft liners will be watertight in order to seal possible
water-bearing zones below the aquifers; they may extend to a level of 2100
feet below the surface. Seals will be used behind the liner to protect the
quality of the water in the aquifers and to inhibit the inflow of water to the
test horizon. Underground drift excavations will be approximately 5400 feet
in length (the same as in the 1985 Mission Plan).

The final design of the exploratory-shaft facility requires the drilling
of an engineering design borehole, which cannot be done until the DOE obtains
access to the site. The design will reflect any changes required by new data
gathered from the engineering design borehole, flexibility studies, and the
requirements of quality assurance and licensing.

-28-

REFERENCES

1. U.S. Department of Energy, "General Guidelines for the Recotimendation of
Sites for the Nuclear Waste Repositories," 10 CFR Part 960, Federal
Register, Vol. 49, No. 236, p. 47714, December 6, 1984.

2. U.S. Department of Energy, Draft Environmental Assessment, Lavender
Canyon Site, Utah. DOE/RW-0009, Washington, D.C., 1984.

3. U.S. Department of Energy, Draft Environmental Assessment, Davis Canyon
Site, DOE/RW-0010, Washington, D.C., 1984.

4. U.S. Department of Energy, Draft Environmental Assessment, Cypress Creek
Dome Site, Mississippi, DOE/RW-OOU, Washington, D.C., 1984.

5. U.S. Department of Energy, Draft Environmental Assessment, Yucca Mountain
Site, Nevada Research and Development Area, Nevada, DOE/RW-0012,
Washington, D.C., 1984.

6. U.S. Department of Energy, Draft Environmental Assessment, Richton Dome
Site, Mississippi, DOE/RW-0013, Washington, D.C., 1984.

7. U.S. Department of Energy, Draft Environmental Assessment, Deaf Smith
County Site, DOE/RW-0014, Washington, D.C., 1984.

8. U.S. Department of Energy, Draft Environmental Assessment, Swisher County
Site, Texas, DOE/RW-0015, Washington, D.C., 1984.

9. U.S. Departirrnt of Energy, Draft Environmental Assessment, Vacherie Dome
Site, Louisiana, DOE/RW-0016, Washington, D.C., 1984.

10. U.S. Department of Energy, Draft Environmental Assessment, Reference
Repository Location, Hanford Site, DOE/RW-0017, Washington, D.C., 1984.

11. U.S. Department of Energy, Environmental Assessment, Deaf Smith County
Site, DOE/RW-0069, Washington, D.C., 1986.

12. U.S. Department of Energy, Environmental Assessment, Reference Repository
Location, Hanford Site, DOE/RW-0070, Washington, D.C., 1986.

13. U.S. Department of Energy, Environmental Assessment, Yucca Mountain Site,
Nevada Research and Development Area, Nevada, DOE/RW-0073, Washington,
D.C., 1986.

14. U.S. Department of Energy, Environmental Assessment, Davis Canyon Site,
DOE/RW-0071, Washington, D.C., 1986.

15. U.S. Department of Energy, Environmental Assessment, Richton Dome Site,
Mississippi, DOE/RW-0072, Washington, D.C., 1986.

-29-

16. U.S. Department of Energy, Recommendation by the Secretary of Energy of
Candidate Sites for Site Characterization for the First Radioactive-Waste
Repository, DOE/S-OQAg, Washington. D.C.. 1986.

17. U.S. Department of Energy, A Multiattribute Analysis of Sites Nominated
for Characterization for the First Radioactive-Waste Repository — A
Decision-Aiding Methodology, DOE/RW-0074, Washington, D.C., 1986.

18. U.S. Department of Energy, Issues Hierarchy for a Mined Geologic Disposal
System, DOE/RW-0101, Office of Geologic Repositories, Washington, D.C.,
1986.

19. U.S. Department of Energy, Mission Plan for the Civilian Radioactive
Waste Management Program, DOE-RW-0005, Washington, D.C., 1985, Vol. I.

21. U.S. Nuclear Regulatory Comn-iission, "Disposal of High-Level Radioactive
Wastes in Geologic Repositories," Code of '='ederal Regulations, Title 10,
Part 60.

22. Suimnaries of NRC/DOE meetings on subsystem performance allocation; A.pril
17, 1985, and September 26-27, 1985, Silver Spring, Maryland.

-30-

Appendix B

THE SCHEDULE FOR THE DEVELOPMENT OF THE FIRST REPOSITORY

This appendix presents the revised schedule for the first repository.
The discussion is limited mainly to the activities that are on the critical
path. However, the schedule for activities that are not on the critical path
was also reviewed to determine their potential for affecting the schedule.

B.l SCHEDULE ASSUMPTIONS

The revised schedule for the first repository is based on the following
major assumptions:

1. The schedule is success oriented but achievable. The achievement of
the schedule will require the DOE's best efforts.

2. The work effort must be based on technical excellence and quality.
All aspects of the program (design, testing, analysis, etc.) must be
executed with emphasis on technical accuracy and completeness.
Products must be defensible and usable.

3 . Adeqtiate resources, both manpower and budgetary, are available . The
schedule is not constrained by funding or manpower limitations in
fiscal year 1988 and beyond.*

k. Work will proceed at all three sites as expeditiously as possible.

Although the projected schedule shows that the tuff site could finish
site characterization before the salt and the basalt sites, work will
go forward as quickly as possible at all three sites.

5. The construction of exploratory shafts at each site has the highest
priority. At all three sites the critical path in the schedule
involves the exploratory shafts and the in-situ testing programs.

*The schedule presented in this amendment is based on a budget require-
ment of $725 million for fiscal year 1988; a budget amendment is being
prepared for submittal to the Congress after the resolution of pending issues
regarding the scope and the pace of the program.

-31-

B.2 MAJOR PHASES OF THE REPOSITORY SCHEDULE

The DOE has examined the steps that lead to the beginning of repository
operations and, for purposes of this discussion, has divided them into four
major phases:

1. Site characterization.

2. Site selection and approval.

3. Licensing review by the Nuclear Regulatory Commission (NRG).
It. Repository construction.

Table B-1 shows the major activities in each of these phases for the
first repository. Each phase contains many other activities that have not
been included in this list because they are not as critical to the schedule as
those shown.

Table B-1. Major phases of the repository program

1. SITE CHARACTERIZATION
Site-characterization plans issued

Land acquired and applicable permits obtained
Exploratory shafts constructed

Site characterization conducted to acquire data for the
draft environmental impact statement

2. SITE SELECTION AND APPROVAL

Draft environmental impact statement issued
Final environmental impact statement issued
Site-selection report submitted to the President
Site recommended by the President to the Congress
Site designation becomes effective

3. NRC LICENSING REVIEW

License application submitted to the Nuclear Regulatory

Commission (NRC)
Construction authorization issued by the Nuclear

Regulatory Commission

4. CONSTRUCTION OF THE REPOSITORY

Surface and underground facilities constructed

Startup testing completed

License to receive and possess radioactive materials

issued by the Nuclear Regulatory Commission
Operations begin

Most of the discussion that follows is concerned with phases 1 and 2,
site characterization and site selection. The assumptions for the last two
phases (NRC licensing review and repository construction) remain unchanged
from the 1985 Mission Plan, but the durations have been extended, as discussed
later.

-32-

Site characterization

The activities conducted during the site-characterization phase are di-
rected at acquiring the information necessary to select a site for the reposi-
tory and prepare the license application. Some of the necessary information
can be acquired by surface-based investigations. Other data (e.g., some of
the geohydrologic parsuneters) can be obtained from a systematic series of deep
and shallow boreholes and by laboratory testing of mechanical and thermal
properties. However, much of the information needed can be obtained only by
gaining access to rock at points along the length of exploratory shafts
constructed to the depth of the target horizon and by performing tests in an
exploratory-shaft facility.

The major milestones for site characterization are as follows:

1. Site-characterization plans are issued in mid-1987 for tuff and
basalt and in the first quarter of 1988 for salt.

2. Construction of the exploratory shafts starts in the second quarter
of 1988, the third quarter of 1988, and the fourth quarter of 1989
for tuff, basalt, and salt, respectively.

3. Underground connections are made between the first and second
exploratory shafts in the fourth quarter of 1989, the fourth quarter
of 1991, and the first quarter of 1992 for tuff, salt, and basalt,
respectively.

4. In-situ testing begins in the fourth quarter of 1989, the fourth
quarter of 1991, and the first quarter of 1992 for tuff, salt, and
basalt, respectively.

5. Testing to support the draft environmental impact statement and the
site-selection decision is completed in the first quarter of 1992 for
tuff and the first quarter of 1993 for salt and basalt.

The sections that follow discuss very briefly the site-characterization
activities at each site. More information about the tests to be conducted
during site characterization and the design of the exploratory shafts can be
found in Section A. 3 of Appendix A.

Basalt site. At the basalt site (the Hanford site in the State of
Washington) the construction of the first shaft is scheduled to begin in the
third quarter of 1988, and the underground connection of the shafts is
scheduled for the first quarter of 1992. The final design for the revised
exploratory-shaft facility will be conducted in 1987.

The schedule is driven by the need to complete key hydrology tests before
starting the construction of the exploratory shafts. With the completion of
these key hydrology tests, the 41-month program of exploratory-shaft sinking
and underground excavations begins. The two shafts will be drilled sequen-
tially, with 14 months allowed for sinking the first shaft and moving the
drill rig to the second site. Concurrently with the start of the second
shaft, the first shaft will be outfitted and initial porthole testing will

-33-

begin within 15 months. Thereafter, completion of the underground shaft con-
nection is timed to coincide with the second-shaft sinking at depth. The
completion of drifting will take place 9 months after shaft connect!

on.

Concurrently with the final drifting, in-situ testing will begin. In-situ
testing for the draft environmental impact statement is currently scheduled to
last 12 months, with another 12 months required to collect additional data for
the license application.

The license-application (LA) designs for the waste package and the
repository are scheduled to permit the incorporation of preliminary in-situ
data. The waste-package LA design will require 24 months, with the repository
LA design scheduled concurrently. Finally, 3 months is allowed to complete
major design and topical reports for the license application.

Tuff site. At the tuff site (Yucca Mountain in Nevada), the construction
of the shafts is expected to begin in the second quarter of 1988, and the
completion of the underground connection between the shafts is scheduled for
the fourth quarter of 1989. Most of the testing will be conducted from one of
the shafts, and the other shaft is planned to be completed earlier so that the
underground connection can be completed as scheduled.

The schedule for the tuff site is driven by the completion of Title I and
II designs for the exploratory shafts; these designs include the increased
drifting and a longer second shaft (see Section A. 3 in Appendix A). The con-
struction of the first shaft will proceed at a slower pace to permit the
required geologic mapping of the shaft walls. Drifting will be completed 10
months after the shafts are connected. Concurrently with the final drifting,
in-situ testing will begin. In-situ testing is currently scheduled to last 27
months and will be completed before the issuance of the draft environmental
impact statement.

License-application designs for the waste package and the repository are
scheduled to permit the use of preliminary in-situ data. The waste-package LA
design IS planned to require 24 months, with the repository LA design
scheduled concurrently, but extending to 30 months to permit final integration
of the waste package into the repository system. Finally, 6 months is allowed
to complete major design and topical reports for the license application.

Salt site. At the salt site (Deaf Smith County, Texas), the construction
of the exploratory shafts is expected to begin in the fourth quarter of 1989,
and the completion of the underground connection is scheduled for the fourth
quarter of 1991. The final design of the exploratory-shaft facility will
start in 1987. Initially, land acquisition and permitting will be the pri-
mary activities.

The schedule for the salt site is driven by the permits and the land
access required for drilling an engineered-design bore hole (EDBH) to obtain
site-specific data for the exploratory-shaft and underground designs. Con-
current with the EDBH drilling and testing, permits must be obtained for shaft
sinking. These activities are expected to require at least 18 months after
the acquisition of land. Site preparation, which includes roads, surface
facilities, headframe, and ground freezing, is planned to require 9 months.
The sinking of both shafts will require 22 months, and the connection of the
shafts IS expected to require 2 months. Drifting to support the in-situ test

-34-

program will take 5 months, with in-situ testing occurring in parallel. The
in-situ test program for the draft environmental impact statement will last 14
months, with another 5 months needed to collect additional data for the
license application.

License-application designs for the waste package and the repository are
scheduled to permit the use of preliminary in-situ data. The waste-package LA
design is planned to require 24 months, with the repository LA design sched-
uled concurrently, but extending to 30 months to permit the final integration
of the waste package into the repository system. Finally, 6 months is allowed
to complete major design and topical reports for the license application.

Site selection and approval

The major milestones for site selection are as follows:

1. The draft environmental impact statement is issued in the fourth
quarter of 1993, followed by a 90-day public comment period.

2. The final environmental impact statement and the record of decision
are issued in the fourth quarter of 1994.

3. The site-selection report is submitted to the President in the fourth
quarter of 1994.

4. The President recoimends the site to Congress in the fourth quarter
of 1994.

5. The site designation is effective in the first quarter of 1995.

Approximately 7 months has been added to this phase of the program to
ensure that an adequate draft and final environmental impact statement can be
prepared, considering fully input from the States, affected Indian Tribes,
other interested parties, and the public.

NRC licensing review

The duration of this activity has been extended by 9 months, from 27 to
36 months.

The major milestones for this phase are as follows:

1. The DOE submits the license application in the first quarter of 1995.

2. The Nuclear Regulatory Commission issues a construction authorization
in the first quarter of 1998.

Repository construction

The duration of the construction of the repository has been extended by 7
months. The major milestones for construction, testing, and the start of
operations are the following:

-35-

1. Repository construction is started in the first quarter of 1998.

2. The DOE submits the updated license application to the Nuclear
Regulatory Commission in the third quarter of 2000.

3. Phase 1 construction is completed in the third quarter of 2002.

4. The Nuclear Regulatory Commission issues a license to receive and
possess radioactive materials in the first quarter of 2003.

5. Phase 1 operations begin in the first quarter of 2003.

6. Phase 2 construction is completed in the third quarter of 2005.

7. Phase 2 operations begin in the second quarter of 2006 and reach the
annual emplacement rate of 3000 metric tons of uranium in 2008.

-36-

Appendix C
THE MRS FACILITY

Section 141 of the Act directs the DOE to complete a study of the need
for, and the feasibility of, a facility for monitored retrievable storage
(MRS) and to submit to the Congress a proposal for the construction of one or
more MRS facilities. According to Section 141(b)(1), such a facility is to
accommodate civilian spent fuel and high-level waste; permit continuous
monitoring, management, and maintenance of these wastes; provide for the ready
retrieval of these wastes for further processing or disposal; and safely store
such wastes as long as may be necessary by maintaining the MRS facility.

In the spring of 1985, the DOE completed a preliminary need-and-
feasibility analysis and announced its conclusion that an MRS facility could
serve as an integral and important part of the overall waste-management
system.^ Furthermore, careful analyses of the provisions of the Act and of
programmatic options have shown that the performance of the waste-management
system could be enhanced by integrating into the system an MRS facility that
is centrally located to most of the commercial nuclear reactors. A central
location was one of the criteria that led to the identification of preferred
candidate sites. ^

C.l THE FUNCTIONS AND OPERATIONS OF AN MRS FACILITY

As described in the 1985 Mission Plan,^ an MRS facility would be fully
integrated into the waste-management system. Its principal functions would be
to prepare spent fuel for emplacement in a repository and to serve as the
central receiving station for the waste-management system. The preparation
for flaplceeawitt aajr include removing the spent-fuel rods from the metal grids
ttaAt hoM fclMm together In a square array and consolidating them into a much
tisbtwr arr^. Consolidation offers several advantages, such as a reduction
in tiM ouiriMr of waste shipments to a repository and a reduction in the number
or the site of waste packages requiring handling and emplacement in a reposi-
t0ry« Whether consolidated or not, the spent fuel would be loaded into canis-
ters that are uniform in sice and free of surface contamination with radio-
active material* Such canisters would facilitate handling, shipping, and
rfurthcx processing at the repository.

In addition to its waste-preparation function, an MRS facility would pro-
vide limited temporary storage for spent fuel and would contain a storage yard
with a capacity of up to 15,000 MTU. The canisters of spent fuel would be
stored at the stirface-^ in concrete casks equipped with monitoring instruments
and designed for easy retrieval of the spent fuel for shipment to the reposi-
tory.

The MRS facility would be designed and operated with the fundamental
objective of protecting the health and safety of the public, the workers at

-37-

the facility, and the quality of the environment. It would be licensed by the
Nuclear Regulatory Commission.

C.2 THE ADVANTAGES OF AN MRS FACILITY

The most significant advantages of an MRS facility can be summarized as
follows:

• Improvements in system development.

• Accelerated waste acceptance from utilities.

• Improvements in the reliability and flexibility of the
waste-management system.

• Advantages for the repository.

• Improvements in the specification and performance of the
transportation system.

• Institutional benefits.

Each of these advantages is briefly discussed below.

Improvements in system development. The MRS facility would allow the DOE
to separate a major part of the waste-management process (spent-fuel accept-
ance, transportation from reactor sites, consolidation, and sealing in canis-
ters) from uncertainties about the repository and to proceed immediately with
detailed planning for, and implementation of, that part. This would provide
the utilities with a firmer basis for planning the transfer of spent fuel to
the DOE. The development and specification of the transportation system would
also be advanced because the approval of the MRS facility would allow specific
routing, logistics, and equipment requirements for shipments from reactors to
be determined several years earlier. The early accomplishment of these sep-
arable steps of the waste-management process would significantly enhance con-
fidence in the schedule for the operation of the total system. Moreover, the
MRS facility would provide a focal point for early system integration.

Accelerated waste acceptance from the utilities. By starting in 1998,
the MRS facility would allow the system to begin receiving spent fuel 5 years
sooner than the system described in this amendment without an MRS facility.
This would significantly reduce the need for new temporary storage capacity at
reactor sites and the attendant fuel-handling operations, licensing efforts,
and costs. It would also provide assurance that the Federal waste-management
system will begin operations by 1998 as specified in the contracts between the
DOE and the owners of spent fuel.

Improvements in the reliability and flexibility of the waste-management
system. Improvements in reliability and flexibility would be realized by
separating the function of spent-fuel acceptance from the function of spent-
fuel emplacement in the repository and adding significant operational storage

-38-

capacity to the system. These improvements would significantly increase the
manageability of the system and allow the DOE to better accommodate any
unexpected circumstances of the future.

Advantages for the repository. By performing waste-preparation func-
tions, the waste-handling facilities and operations of the repository would
be simplified. Furthermore, the repository would receive fewer separate ship-
ments; the waste canisters received from the MRS facility would be uniform in
size and free from surface contamination with radioactive material; and a
large portion of the inventory-accountability function would be performed at
the MRS facility. Another important advantage would be the constant rate of
waste throughput, which would enhance the efficiency of repository operations.

Improvements in the specification and the performance of the transporta-
tion system. By shipping consolidated spent fuel in dedicated trains, the MRS
facility would significantly reduce the number of shipments to the repository
and reduce the distances of spent-fuel shipments in less-efficient tru:k-
mounted casks. Being centrally located for most reactors, it would serve as a
hub for transportation operations, focus the control and management of trani-
portation operations, and reduce the number of cross-country shipping routes.
Moreover, by allowing early identification of routes to the MRS site, the MRS
facility would provide institutional benefits because it would increase the
time available to work with the States, Indian Tribes, and the public on
route-specific planning.

Institutional benefits. The development of the MRS facility would pro-
duce institutional benefits through the experience gained from interactions
with the host State and other parties as well as by allowing the DOE to demon-
strate earlier that it is willing and able to be a responsible corporate citi-
zen and neighbor. Early progress in waste management, starting with the
designation of a specific site and facility construction, would help provide
needed momentum for implementing the entire system.

C.3 STATUS AND SCHEDULE

In December 1985, a draft proposal, including an environmental assessment
and a program plan, was prepared for submittal to the Congress early in 1986.
Copies of this proposal were sent to the Environmental Protection Agency and
the Nuclear Regulatory Commission for comment, as specified in the Act. Con-
currently copies were also provided to the State of Tennessee for comments.

However, the DOE was not able to submit the proposal to the Congress as
planned because of a suit filed by the State of Tennessee claiming that the
DOE had failed to consult properly with the State before the selection of
proposed sites for the MRS facility. On February 6, 1986, the U.S. District
Court for the Middle District of Tennessee ruled in favor of the State and on
February 7 issued an injunction effectively prohibiting the DOE from sub-
mitting the MRS proposal to the Congress. The DOE immediately appealed to the
U.S. Court of Appeals for the Sixth Circuit and on November 25, 1986, obtained
a favorable ruling. The court of appeals ruled that the Federal courts of
appeals have original jurisdiction over actions involving the consultation and

-39-

cooperation requirements applicable to MRS facilities under the Act. The
court further held that the actions taken by the Secretary of Energy in iden-
tifying sites and in consulting with the State of Tennessee did not violate
the Act.

The State of Tennessee innnediately filed, on November 25, 1986, a peti-
tion for a stay or extraordinary writ of injunction. The DOE responded on
November 28 with a motion in opposition and with a countermotion for the imme-
diate issuance of a mandate or the dissolution of injunction. On December 1,
1986, the State filed a motion in opposition to the DOE's countermotion and,
on December 4, 1986, filed a petition for a rehearing, with a suggestion that
the case be reheard by the full court. The court denied the petition for a
rehearing, and subsequently the State requested and was granted a stay pending
an appeal to the Supreme Court of the United States. The DOE is awaiting the
resolution of these events and intends to submit the proposal to the Congress
at the earliest date practicable.

As explained in the 1985 Mission Plan, the DOE had hoped to have an MRS
facility ready to start receiving waste in 1996. This date was based on the
assumption that congressional authorization to construct the facility would be
received in mid-1986. Prompt authorization would still permit the start of
MRS operations in 1998. To allay concerns that the MRS facility could become
a substitute for a permanent repository, the DOE will recommend that the
Congress limit its storage capacity to 15,000 metric tons of uranium and to
specify that the MRS facility cannot start receiving spent fuel until a
construction authorization for the repository has been received from the
Nuclear Regulatory Commission.

C.4 INSTITUTIONAL RELATIONS

Critical to the successful implementation of the MRS facility will be the
establishment of an effective working relationship with the host State and
local governments. The DOE's proposal to the Congress will outline a compre-
hensive approach to institutional relations. One of the measures to be pro-
posed is the establishment of an MRS steering committee consisting of persons
representing the DOE, the State, local governments, and the public; the pur-
pose of this committee would be to oversee the operations of the facility.
Another measure is the immediate development of a consultation-and-cooperation
agreement with the host State to delineate a framework for cooperation among
all involved parties.

In addition, the proposal will recommend financially compensating the
host State and the local communities for the impacts of the MRS facility. The
proposed compensation, which is not currently authorized by the Act, would be
equivalent to the taxes that a commercial facility of the same value would pay
to the local and State governments. It is estimated to total about $15 mil-
lion per year and would begin the year congressional authorization is received.

-40-

REFERENCES

1. U.S. Department of Energy, Need for and Feasibility of Monitored
Retrievable Storage — A Preliminary Analysis, DOE/RW-0022, Washington, D.C.

2. U.S. Department of Energy, Screening and Identification of Sites for a
Proposed Monitored Retrievable Storage Facility, DOE/RW-0023, Washington,
D.C, 1985.

3. U.S. Department of Energy, Mission Plan for the Civilian Radioactive
Waste Management Program, DOE/RW-0005, Washington, D.C, 1985, Vol. I,
Part I, Section 3.2.1.

-41-

Appendix D
RESCHEDULING OF THE SECOND REPOSITORY

The need for more than one repository was made explicit by the Nuclear
Waste Policy Act, which requires the Nuclear Regulatory Commission to prohibit
the emplacement in the first repository of more than 70,000 metric tons of
uranium (MTU) until a second repository becomes operational. The Act
authorizes the siting of the second repository and specifies a schedule for
selecting its site; it does not, however, authorize the construction of the
second repository.

D.l HISTORY OF THE SECOND-REPOSITORY PROGRAM

In order to consider additional potential host rocks with characteristics
favorable for waste isolation and different from those being investigated for
the first repository (i.e., basalt, salt, and tuff), the DOE decided to focus
its second-repository siting program on crystalline rocks (granite and high-
grade metamorphic rocks similar in composition to granite). A national survey
to identify regions with suitable crystalline-rock formations had been begun
in 1979, in response to recommendations that additional host rocks be consid-
ered for the first repository. This survey had identified three regions
(northcentral, northeastern, and southeastern) as being more likely to contain
large bodies of suitable rock, and subsequent regional studies indicated
nearly 250 crystalline-rock bodies as potentially suitable. In addition, to
benefit from studies being performed by other countries that are considering
crystalline-rock formations for the disposal of radioactive waste, the DOE
started a program of international cooperation and exchange.

In January 1986, the DOE issued a draft area-recommendation report that
identified potentially acceptable crystalline-rock sites in 12 areas in 7
States and an additional 8 "backup" candidate areas in the same 7 States. '■
The issuance of this report in final form would have led to preliminary field
work in the northcentral, northeastern, and southeastern parts of the
country. Because of the postponement of site-specific activities, no work
other than a cataloging of comments is planned on this draft report, and the
areas identified in the report are no longer under active consideration. Nor
are any other sites being considered at present.

D.2 SCHEDULE

For siting the second repository, the Act specifies a process similar to
that of the first; for ex£unple, the Secretary of Energy is to nominate five
sites as suitable for characterization and to recommend three for character-
ization. Not later than March 31, 1990, the President is to submit to the
Congress a recommmendation for the second-repository site. Given programmatic
considerations and limitations, the DOE has on several occasions modified this

-1*3-

schedule. In the 1985 Mission Plan, after evaluating the progress and sched-
ule for the first repository, the DOE extended this site-recommendation date
to 1998, with waste emplacement scheduled to begin in 2006; a further revision
was announced in the 1986 budget submittal to the Congress. The purpose of
these revisions was to ensure that the second-repository schedule would not
overlap that of the first repository; it would thus allow information gained
in the first-repository program to be applied to the second repository,
improving the program and increasing its cost effectiveness.

As announced by the Secretary of Energy on May 28, 1986, the DOE has
decided that it would be prudent to postpone site-specific work for the second
repository for the reasons explained below. However, the DOE remains firmly
committed to a two-repository system and, to this end, intends to continue
with a technical program for the second repository; current plans for this
program are in Section D.4.

The second-repository decision is consistent with the DOE's priorities:
the siting, construction, licensing, and operation of the first geologic
repository as well as the development and operation of the transportation
system for moving waste to the repository; the determination of the need for,
and the feasibility of, monitored retrievable storage (MRS) and the submittal
to the Congress of a proposal for the construction of an MRS facility; and,
finally, carrying out the activities necessary for the second repository so
that when the DOE requests congressional authorization to proceed with con-
struction, there will be a firm basis for that request.

D.3 REASONS FOR DELAYING THE SECOND REPOSITORY

The DOE's decision to reassess its schedule and program for the second
repository is due to the following reasons, which are briefly discussed below:

• Th« cQotiavuQg. progress io siting the first repository and confidence
in the suitability ot the three sites approved by the President for
site characterisation.

• The generally declining forecasts of the quantities and rates at which
spent fuel will be discharged from reactors.

• Later estimates of the time when the second repository will be needed.

• Prudent fiscal management and responsibility.

• The expectation of receiving congressional approval for developing an
MRS facility.

Progress in siting the first repository. The DOE had included in its
contingency plans for the first repository the possibility of using a
candidate site from the second-repository program. This contingency plan
specified that, if none of the sites characterized for the first repository is
found suitable, sites under investigation for the second repository could
become candidates for the first repository. However, as already explained in

-UU-

Appendix A, the final environmental assessments and other evaluations of the
three sites selected for characterization as candidates for the first reposi-
tory indicate that suitable sites are likely to emerge from the characteriza-
tion phase, and hence it is not likely that this contingency plan will be
necessary. This eliminates an important reason for site-specific studies for
the second repository at present.

Forecasts of waste generation. The Office of Civilian Radioactive Waste
Management relies on spent-fuel-discharge forecasts by the DOE's Energy
Information Administration (EIA) as a basis for planning. In November 1984,
the EIA published a middle-case forecast showing 49,000 metric tons of uranium
(MTU) discharged by the year 2000 and 130,000 MTU by the year 2020.2 These
figures, which were used as the planning basis in the 1985 Mission Plan,^ were
less than those being predicted at the time the Act was passed and reflected
the latest estimates in a gradually decreasing trend. In December 1985, the
EIA adopted a new standard middle-case forecast based on the assump- tion that
fuel bumups would gradually increase to 30 percent above current levels by
1993 and then stay constant.^

Having updated its forecasts with these assumptions, the EIA showed less
than 42,000 MTU by the year 2000 and only 106,000 MTU by the year 2020, a
decline of about 15 and 20 percent, respectively. It is important to note
that these forecasts, being conservative, assume substantial additions of
nuclear electricity-generating capacity in the United States. If this assump-
tion is changed to the case of no new orders for nuclear power plants, the
predicted quantities of discharged spent fuel are less than 40,000 MTU in the
year 2000 and less than 80,000 MTU in the year 2020. This case was examined
as a lower bound. A more-detailed discussion of waste-generation forecasts is
given in Appendix E.

The amount of spent fuel available for emplacement in a repository by a
certain year is less than the amount of spent fuel discharged by that year.
According to the terms of the contract between the DOE and the utilities,^ the
spent fuel that will be accepted for disposal must be at least 5 years old.
Thus, for example, the maxim\:tm eunount of spent fuel available for disposal in
the year 2020 is actually the smaller amount of spent fuel that has been
discharged by the year 2015.

The uncertainty or range of projections of spent fuel discharged from
domestic nuclear reactors is large and increases further out in time when
assumptions are based largely on macroeconomic models. However, it is clear
that the volume of spent fuel is growing more slowly than expected when the
Act was enacted. It is therefore prudent to delay site-specific activity on a
second repository until the uncertainties in these data are reduced or a clear
picture of the timing for need is in hand.

Estimates of the time when the second repository will be needed. In the
Act, the specific requirement in regard to the availability of the second
repository is stated in terms of the maximum amount of spent fuel that can be
emplaced in the first repository until a second repository is in operation.
The Act sets this figure at 70,000 MTU (half of the total quantity expected
when the Act was passed). The 1985 Mission Plan presented two illustrative
waste-acceptance schedules, one without an MRS facility and one with an MRS

-45-

facility; both indicated that the first repository would reach the 70,000-MTU
limit after the year 2020. The repository is currently designed for an annual
receipt capability of 3000 MTU for commercial spent fuel and i»00 MTU for high-
level waste. The annual receipt rate for spent fuel is approximately the rate
of spent-fuel discharge in the 1984 EIA estimates. The repository schedule
presented in this amendment (see Appendix B) now extends by at least 5 years
the date when the first repository will reach the 70,000-MTU capacity limit.
The DOE will continue to monitor all pertinent factors — projections of spent-
fuel discharge rates, the rate at which the first repository is filled, and
the time needed to develop the second repository — to determine the schedule
for the second repository.

The Act establishes a schedule for siting the second repository, but not
for construction and the start of operations. (As already mentioned, the Act
does not authorize the construction and operation of the second repository.)
For the first repository, the Act allows 15 years from the identification of
potentially acceptable sites to the start of waste acceptance for disposal
(1983 to 1998), but the site-screening studies that led to the identification
of potentially acceptable sites had begun in the late 1970s. It therefore
seems prudent to plan that site-specific screening leading to the identifica-
tion of potentially acceptable sites should start about 25 years before the
start of waste acceptance for disposal. Thus, to have the second repository
available after 2020, site-specific studies need not start until the middle to
late 1990s.

The estimate of 25 years is considered to be conservative, because it
does not take into account the schedule benefits expected from the first
repository. These benefits are expected to be derived from improvements in
site screening and characterization (including the issue-resolution strategy
discussed in Section A. 2), in repository design, in performance assessment, in
licensing, and in institutional interactions. Nor does it account for the
technology-development program discussed in Section D.4; its performance-based
approach to siting should significantly shorten the site-screening process.

Fiscal responsibility. Under the second-repository plan presented in the
June 1985 Mission Plan, the DOE projected to spend nearly $700 million through
the year 1993 for siting activities leading to site characterization. Under
the revised program, expenditures through the year 1993 should total about
$200 million.

A preliminary review has determined that the deferral of the second
repository will not significantly affect the adequacy of the fee paid into the
Nuclear Waste Fund. The delay in major expenditures for the second repository
should strengthen the financial position of the program by allowing additional
time for earning a return on Nuclear Waste Fund investments or reducing the
need for borrowing from the U.S. Treasury. These savings, however, will to
some extent be offset by the need to continue some second-repository activi-
ties longer than would otherwise be necessary. These effects are being
investigated and will be discussed in the next annual fee-adequacy report that
will be submitted to the Congress.

Monitored retrievable storage. The DOE plans to submit to the Congress,
at the earliest practicable date, a proposal to develop a facility for

-46-

monitored retrievable storage (MRS). Such a facility would prepare spent fuel
for emplacement in the repository and provide temporary storage for up to
15,000 MTU (see Appendix C for more information). It would begin accepting
spent fuel in 1998.

/
The MRS facility is considered to be an integral part of the waste-
management system, whether the system contains one or two repositories. It is /
not viewed as a substitute for the second repository. Designed to provide
temporary storage for a limited amount of spent fuel, the MRS facility is
distinctly different from a second repository, which is to provide permanent
disposal. Nevertheless, while the system is accepting spent fuel, an MRS
facility added to a single-repository system does provide some of the benefits
to be obtained by adding a second repository at a very early date. (With two
waste-acceptance facilities operating concurrently, the waste-management
system has the flexibility to divert fuel acceptance between the facilities to
maintain a constant acceptance rate if one of the facilities incurs opera-
tional delays.) From the standpoint of operational efficiency and reliabil-
ity, an MRS facility would produce several benefits for the first several
years of operation: it would enhance confidence in the schedule, increase the
waste-acceptance rate for the initial years of operation, provide transporta-
tion benefits, and could allow the siting of a second waste-management facil-
ity that is centrally located in relation to the sources of commercial spent
fuel.

D.4 TECHNICAL PROGRAM FOR THE SECOND REPOSITORY

As already mentioned, site-specific work for the second repository has
been discontinued, but non-site-specific studies of potential host rocks will
continue. Thus, thoueh the areas identified as suitable in the draft area-
recommendation report^ for the crystalline-rock program are no longer under
active consideration, the DOE will continue non-site-specific studies of crys-
talline rocks. Furthermore, studies on sedimentary rocks not previously con-
sidered will be undertaken. Extensive formations of crystalline and sedimen-
tary rocks are available in many parts of the United States. In addition, the
Act states that certain sites from the first-repository program are eligible
for consideration in siting the second repository — namely, potentially accept-
able sites that were not nominated for characterization as well as sites that
have been characterized and found suitable. In siting the second repository,
however, both the Nuclear Waste Policy Act and the DOE siting guidelines^ (10
CFR Part 960) require that regionality in relation to the first repository be
considered to the extent practicable.

The term "non-site-specific-studies" means studies directed at deter-
mining (1) whether a particular type of host rock, regardless of its geo-
graphic location, meets various geologic, hydrologic, geochemical, and rock-
mechanics criteria, such as those specified in the siting guidelines; (2) how
the host rock would respond to the heat and radiation emitted by the waste;
and (3) how well the engineered components of the repository (e.g., the "waste
package," which consists of the waste form, a metal disposal container, and
any packing material around the container) would perform under the conditions
provided by the host rock. Such studies can be based on the scientific

-1*7-

literature. Information collected by private companies, and data collected in
studies performed for the same type of rock in other countries. Site-specific
studies, on the other hand, ar6 usually based on data collected at the spe-
cified potential repository site and in its vicinity; these could include, for
example, trilling boreholes, seismic surveys, and detailed mapping studies.

According to current plans, the program for the second repository will
focus on the following:

1. Non-site-specific evaluations of potential host rocks.

2. The development of analytical approaches to evaluate non-site-
specific geologic settings in terms of waste-isolation performance.

The latter will require the development of an analytical approach for the
selection of geologic settings. This approach will identify the characteris-
tics that a particular type of host rock must have in order to satisfy regula-
tory requirements for waste isolation given the design of the repository and
the "waste package." Because it will integrate geologic characteristics,
engineered components, and regulatory requirements — and because it will be
based on the experience gained from performance assessments for the first
repository — this type of analysis is expected to be associated with a high
level of confidence. Thus, whereas the screening process for the first repos-
itory progressed from national surveys through regional studies (thousands of
square miles), area studies (hundreds to thousands of square miles), location
studies (tens to hundreds of square miles), and site studies, a possible stra-
tegy for the second repository could allow fewer areas of smaller size to be
selected early in the process.

Included in the work discussed above will be the development of mathe-
matical models and computer programs for analyzing the potential waste-
isolation performance of a repository in a particular host rock. This effort
will be greatly facilitated by the experience gained from the first-repository
program, including interactions with the Nuclear Regulatory Commission; none-
theless, the performance-assessment models will need to be tailored to the
characteristics of each rock type.

The DOE plans to continue its current program of international coopera-
tion, including cooperative ventures in research; the major example is the
research being performed in crystalline rock at the Underground Research
Laboratory in Manitoba, Canada. Such cooperative efforts provide for the
development of international consensus on issues. A newly established inter-
national committee of crystalline-program directors is expected to enhance
this collaboration, ensuring that the most cost-effective approaches are con-
sidered.

In fiscal year 1986, the DOE terminated the subseabed disposal program,
which had been directed at assessing the feasibility of isolating radioactive
waste within the thick stable beds of sediments under the ocean floor. This
program was terminated because budget appropriations for generic research and
development not funded from the Nuclear Waste Fund had been greatly reduced.
Accordingly, the DOE announced to the 11 participating international agencies
and countries in the Seabed Working Group that it would terminate its

-1*8-

participation without prejudice to the potential fesibillty of subseabed dis-
posal. As a result, the Seabed Working Group agreed to produce a comprehen-
sive international report on the status and feasibility of subseabed disposal.
The DOE is assisting in the preparation of this report, which will be issued
in 1987 by the Nuclear Energy Agency of the Organization for Economic
Cooperation and Development.

The technology-development program for the second repository is designed
to have similar objectives as the first-repository program and to be flexible
to the needs of the waste-management program. It is intended to provide a
sound basis for acceptance by the technical community and by the public, and
its performance-based screening of sites should result in prudent decisions
about investments in siting.

-49-

REFERENCES

U.S. Department of Energy, Draft Area Recommendation Report for the
Crystalline Repository Project, DOE/CH-15, Crystalline Repository Project
Office, Chicago, 111., 1986, Vol. I.

U.S. Department of Energy, Commercial Nuclear Power 198A; Prospects for
the United States and the World. DOE/EIA-0A38(84) , Energy Information
Administration, Washington, D.C., 1984.

U.S. Department of Energy, Mission Plan for the Civilian Radioactive
Waste Management Program, DOE-RW-0005, Washington, D.C., 1985, Vol. I,
Part I.

U.S. Department of Energy, Commercial Nuclear Power 1985; Prospects for
the United States and the World, D0E/EIA-0438(85) , Energy Information
Administration, Washington, D.C., 1985.

U.S. Department of Energy, "Standard Contract for Disposal of Spent
Nuclear Fuel and/or High-Level Radioactive Waste," Federal Register, Vol.
48, No. 75, p. 16590, April 18, 1983.

U.S. Department of Energy, "General Guidelines for the Recommendation of
Sites for the Nuclear Waste Repositories," 10 CFR Part 960, Federal
Register, Vol. 49, No. 236, p. 47714, December 6, 1984.

-50-

Appendix E
FORECASTS OF SPENT-FUEL DISCHARGE RATES

As a basis for planning, the DOE's Office of Civilian Radioactive Waste
Management (ORWM) uses forecasts by the DOE's Energy Information Administra-
tion (EIA) of the rates at which spent fuel will be discharged from reactors
through the year 2020. The EIA forecasts are generated by computer models
that predict the amount of nuclear energy that will be supplied, as well as
the corresponding spent-fuel discharges. These models are based on data
supplied by the industry and incorporate numerous assumptions on the future
deployment and operation of commercial reactors as well as deductions from
macroeconomic assumptions of growth rates.

Over the last several years, the EIA forecasts of spent-fuel discharges
have shown a generally decreasing trend. This trend has continued since
before the passage of the Act, prompting the DOE to reassess the basis that
was used in the initial planning for the second repository. Consideration of
this trend is one of the principal reasons for delaying site-specific inves-
tigations for the second repository, as discussed in Appendix D. This trend
as well as the reasons for its occurrence are discussed in this appendix.

E.l ASSUMPTIONS USED IN EIA FORECASTS

The EIA considers and defines four distinct scenarios for the domestic
nuclear-energy capacity from the time each report is published through 2020;
these are the optimistic ("high" in 1985 and earlier reports), upper reference
("middle" in 1985 and earlier reports), lower reference ("low" in 1985 and
earlier reports), and "no-new-orders" cases. The DOE plans are based on a
range of spent-fuel projections encompassed by these cases. Typically, the
four scenarios differ in their assiimptions through the year 2000 about
cancellations or delays for nuclear plants that are being constructed or are
on order. For example, in the 1986 EIA report, the lower reference case and
the "no-new-orders" case were based on the assumption that nuclear units in
the construction pipeline were canceled if they were less than UO percent
complete, if they were indefinitely deferred, if work had been stopped at the
site, or if there were severe financial constraints at the end of 1985. For
forecasts beyond the year 2000, the EIA uses computer models that are based on
assumptions about the growth rates for the gross national product, energy
demand, electricity's share of energy use, and the percentage of electricity
generated by nuclear power plants. Using such assumptions, current
projections for the U.S. commercial nuclear capacity in the year 2020 range
from 55 net gigawatts electrical in the "no-new-orders" case to 397 net
gigawatts electrical in the optimistic case.

-51-

E.2 TRENDS IN FORECASTS OF SPENT-FUEL DISCHARGES

Summaries of recent EIA forecasts are presented in Table E-1, showing the
projected cumulative spent fuel for the scenarios considered by the EIA. As
shovm in Table E-1, the latest EIA projections are substantially lower than
the earliest sets of projections shown, including the November 1984 figures
that were used as the basis for the 1985 Mission Plan. The 1986 EIA forecasts
for the upper reference case, which is equivalent to the middle case of
earlier years, shows less than 42,000 MTU by the year 2000 and only 106,000
MTU by 2020, a decrease of about 15 and 20 percent, respectively, from the
assumptions used in the 1985 Mission Plan and a decrease of about 35 percent
from the 1980 middle-case values shown in Table E-1. The current forecast for
the "no-new-orders" case shows only 40,800 and 79,300 MTU in the years 2000
and 2020, respectively.

£.3 REASONS FOR THE DECLINING TREND IN SPENT-FUEL FORECASTS

The reasons for the markedly decreasing trend in forecasts are in part
a result of the problems affecting nuclear power in the United States since
1978, the last year in which an order for a nuclear power plant was placed.
A reduced growth rate in the demand for electricity, financial constraints on
utility companies, a flow of new regulations and safety requirements, delays
in construction and cost escalations, and various operational difficulties
that limited the productivity of nuclear power plants are some of the diffi-
culties that the industry had to face. These factors have reduced the demand
for new central-station power plants, which in turn reduced the construction
of domestic nuclear power plants.

Table E-1.

Sumnary of spent '""i forecasts by the Energy Information Administration
(In metric tons of uranium)

Report date

"No-new-
orders"
case

By the year 2000

Low
case

Middle
case

High
case

By the year 2020

"No-new-
orders" Low
case case

Middle
case

High
case

August 1980*
May 1982"^
February 1983°
November 1984'
December 1985''
September 1986"^

(°)

(»)
45,600
46,400
39,861

59,587
50,110
45,600
46,800
39,864

64,628
54,133
48,200
49,000
41,658

69,593
57,392
49,800
50,200
42.159

40,800 40,800" 41,600' 42,000''

(')

(')
84,500
97,700
74,635

150,393
160,332
108,300
111 ,000
87,397

167,074
184,138
132,600
130,300
106,404

203,982
136,939
156,800
154,500
126,192

79,300 86,800*^ 106,000' 130,300''

^Domestic Nuclear Fuel Cycle Requirements Associated with the Nuclear Power Forecasts

Bf the Energy Infarmatlfln Administration, sr/es/80-08.
^Not Included.
'■Draft (based on 1981 EIA Report to the Congress).
"World Nuclear Fuel Cycle Reouirements--1983 . DOE/EIA-0436, 1983.
^World Nuclear Fuel Cycle Reaui rements--1984. DOE/EIA-0436, 1984.
''world Nuclear Fuel Cycle Reauirements--1985. DOE/EIA-0436, 1985.
'^World Nuclear Fuel Cycle Reauirements--1986. OOE/EIA-0436, 1986.
"Referred to as the "lower reference case" in the 1986 EIA report.
'Referred to as the"upper reference case" in the 1986 EIA report.
^Referred to as the "optimistic" case in the 1986 EIA report.

-52-

Another reason for decreasing forecasts is the increasing level of
nuclear fuel "bumup," which is defined as the amount of energy produced per
unit weight of fuel. To increase cost efficiency, the nuclear utility com-
panies have been gradually increasing the burnup levels. For example, in the
early days of commercial nuclear power, the average burnup was about 20,000
megawatt-days per metric ton of uranium (MWd/MTU), whereas the current levels
are in the range of 30,000 to 35,000 MWd/MTU. When an industry survey, con-
ducted at the request of the Office of Civilian Radioactive Waste Management,
indicated that bumup levels of 35,000 to 45,000 MWd/MTU may be common in the
industry, the EIA, in consultation with industry representatives, decided in

1985 to adopt extended bumup as a key assumption in estimating spent-fuel
discharges. The 1985 EIA report is thus based on the assumption that bumup
levels will gradually increase, exceeding current levels by 30 percent in
1993, and then stay constant. This accounts for most of the large decrease
from the 1984 EIA projections in the spent-fuel discharges predicted for the
years after 2000 in the 1985 estimates (see Table E-1). For the cases in the

1986 report, the EIA assumed a 30-percent increase in bumup by 1998 and a
constant level thereafter. (In addition, the assumed reactor lifetimes were
longer than those in the 1985 report, assumptions on nuclear capacity and
generation were changed, and a shorter average fuel cycle was assumed, creat-
ing a slight increase in spent-fuel discharges in some of the cases.) The
effect of increasing bumup can be seen more clearly from the EIA sensitivity
cases. In the 1985 report, an assumption of no increase in bumup results in
a forecast of 126,642 MTU for the year 2020 (close to the 1984 estimate),
whereas an assumption of a 50-percent increase in bumup yields only 101,138
MTU.

The reduced quantities of spent fuel projected by assumptions of higher
bumups would, however, consist of fuel that generates more heat per assembly.
Thus, potential cost savings due to handling smaller numbers of spent-fuel
containers would be offset by the need to provide greater spacing between
packages of spent fuel in the repository. Furthermore, the underground area
required for the repository, determined by the heat output of the total waste
inventory, may not be appreciably altered by higher-bumup fuel.

E.4 UNCERTAINTIES

Although forecasts like those shown in Table E-1 are useful for planning
purposes, it must be recognized that substantial uncertainties are involved in
predicting the amount of spent fuel that will be discharged from nuclear power
plants. Furthermore, the uncertainty increases with time. For example, the
extremes of the 1986 EIA forecasts of spent fuel accumulated by the year 2000
show a difference of only 1200 MTU, which is less than 3 percent of the
forecast for the upper reference case. However, the forecasts for the year
2020 cover a range of 51,000 MTU, which represents nearly 50 percent of the
value for the upper reference case. Thus, less confidence can be placed in
the accuracy of predictions past the year 2000. Nonetheless, it is highly
likely that the volume of spent fuel requiring disposal will be significantly
less than that expected when the Act was passed in 1982 or when the Mission
Plan was issued in 1985.

-53-

Appendix F
WASTE-ACCEPTANCE SCHEDULE

F.l INTRODUCTION

The 1985 Mission Plan presented representative waste-acceptance sched-
ules for the authorized system and the improved-performance system. ^ Because
of the decision to postpone indefinitely site-specific activities for the
second repository, the rebaselined schedule for the first repository, and the
revised estimate of when an MRS facility could begin receiving waste, it was
necessary to develop a revie«d waste-acceptance schedule as a reference for
planning purposes and for fee-adequacy assessments.

Like the schedule in the 1985 Mission Plan, the schedule presented here
is only an approximation of how the system may operate and is subject to
considerable variation. The DOE will further define and specify the system
operating and waste-acceptance parameters as the program progresses. The DOE
will use the forecasts made by the DOE's Energy Information Administration
(EIA) of gross electricity generation by nuclear power plants and the atten-
dant spent-fuel discharges as the planning basis for the overall waste-
management program. The DOE will consider other forecasts of nuclear power
growth as conditions warrant. The waste-acceptance schedule will serve as a
planning base that will be updated annually in response to the latest
forecasts of nuclear power growth.

Under the terms of the contract^ that has been signed between the DOE
and the owners and generators of spent fuel and high-level waste, an annual
capacity report with projected annual receiving capacities and rankings will
be issued by the DOE for planning purposes beginning in 1987. In 1991, the
DOE is required to begin publishing annual acceptance priority rankings for
spent-fuel receipt by the DOE. Beginning Janiiary 1, 1992, the utilities are
to submit to the DOE for approval delivery commitment schedules based on
these rankings. These schedules will form the basis for final delivery
schedules to be submitted by the utilities not less than 12 months before the
actual delivery dates.

The above-mentioned contract provides for the DOE's acquisition of title
to spent nuclear fuel and high-level waste, transportation, and subsequent
disposal. Under the contract, these services are to be provided "after com-
mencement of facility operations, not later than January 31, 1998." Table
F-1 shows an illustrative schedule that is consistent with that requirement
and reflects the DOE's current plans for the development of the improved-
performance waste-management system.

-55-

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-56-

F.2 KEY CHANGES IN THE WASTE-ACCEPTANCE SCHEDULE

The key changes in Table F-1 from the corresponding table in the 1985
Mission Plan (Table 2-3) are as follows:

1. Acceptance of spent fuel begins at the MRS facility in 1998. The
MRS facility is shown as starting operations in 1998 rather than
1995, consistent with the revised estimate for the start of MRS
operations (linked to the receipt from the Nuclear Regulatory Com-
mission of a construction authorization for the first repository) as
described in this document.

2. The first repository is shown as starting operations in 2003 rather
than 1998, consistent with the revised schedule for the first
repository described in Appendix B.

3. The second repository is shown as starting operations after 2020
rather than 2006. This revised date is only an approximation for
reference; it does not represent a firm schedule for the second
repository. Since no more than 70,000 metric tons of uranium (MTU)
can be emplaced in the first repository before a second repository
is in operation, the first-repository schedule indicates that the
second repository needs to begin operations by the year 2028. The
illustrated earlier date of 2023 was selected on the grounds that it
would be desirable to have a fairly uniform and continuous rate of
spent-fuel acceptance into the system. The actual schedule of the
second repository will depend on the actual rates of spent-fuel
generation, the acceptance rates of the first repository, and the
time that will be needed to develop the second repository.

U. The projected total quantity of spent fuel generated through the

year 2020 has decreased from 130,300 to 106,000 MTU. The new fore-
cast is based on the upper reference case (i.e., increasing nuclear
fuel bumup — see Appendix E) in the EIA report World Nuclear Fuel
Cycle Requirements — 1986^).

5. The illustrated receipt rates of the MRS facility have been revised,
with a full-scale rate of 2650 MTU per year rather than 3000 MTU and
a different startup schedule. The spent-fuel acceptance rate for
the total system remains at 3000 MTU per year, but Table F-1 assumes
that 350 MTU of spent fuel from nearby reactors would be received
directly by the repository and 2650 MTU would be received and
shipped by the MRS facility. With the increased period of time
between the start of MRS and repository operations, the indicated
inventory of spent fuel in storage at the MRS facility has increased
from 13,300 to 1^,700 MTU. This amount is smaller than the
15,000-MTU limit proposed by the DOE for the MRS facility.

6. The quantity of high-level waste has been increased by 640 MTU, and
4000 MTU of high-level waste has been assigned to the second reposi-
tory. The 1985 Mission Plan assumed that the estimates of 8000 MTU
of high-level waste included commercial high-level waste from the
West Valley Demonstration Project. Table F-1 considers the West

-57-

Valley waste (equivalent to 640 MTU) to be additional to 8000 MTU of
defense high-level waste. The assumption of an equal amount of
defense high-level waste for each repository is consistent with the
assumptions made for sample calculations for the proposed method for
calculating disposal fees for defense high-level waste. All 640 MTU
of the commercial high-level waste was assumed to be received by the
first repository.

With the 5-year extension of the date for the start of operations at
the first repository, the date for beginning to accept high-level
waste is 5 years later than the date shown in the 1985 Mission Plan
(Table 2-3). The DOE will make arrangements to store defense high-
level waste until it can be accepted at the repository.

7. The total quantity of spent fuel received by the second repository
is shown as 40,640 MTU rather than 68,300 MTU. This is a conse-
quence of the new, lower EIA spent-fuel forecasts.

The revised waste-acceptance schedule in Table F-1 represents the DOE's
current baseline assumptions for fee-adequacy assessments and for other
studies of the waste-management system. However, this schedule is based on a
budget requirement of $725 million for fiscal year 1988 (a budget amendment
is being prepared for submittal to the Congress) and the timely completion of
several key milestones. These include the approval of the MRS facility by
the Congress, the start of operations at the MRS facility, the receipt from
the Nuclear Regulatory Commission of a construction authorization for the
first repository, and the start of operations at the first repository.

F.3 CONTINGENCY PLANS

If the Congress does not approve the MRS facility, the transfer of the
waste to DOE facilities may not be able to begin in 1998. The DOE will
continue to encourage and expedite the effective use of available storage and
the development of necessary additional storage at reactor sites.

If the Congress approves the MRS facility, but it is not possible to
begin MRS operations by 1998 because of longer design, licensing, or con-
struction times, then the impacts on the utilities would be similar but the
extent of mitigating actions would be less. A similar situation would occur
if the MRS facility is available for spent-fuel acceptance on time, but the
construction authorization for the repository is delayed beyond 1998, because
the DOE will recommend that the Congress specify that the MRS facility cannot
start receiving spent fuel until a construction authorization for the
repository is received.

Should the MRS facility be available in 1998 and the construction
authorization for the repository be received on time, the waste-acceptance
schedule may still need to be revised if the repository does not begin oper-
ations by 2003. In that event, the MRS receipt rates may need to be reduced
to prevent the MRS inventory from exceeding 15,000 MTU.

-58-

REFERENCES

1. U.S. Department of Energy, Mission Plan for the Civilian Radioactive Waste
Management ProRram. DOE-RW-0005, Washington, D.C., 1985, Vol. I, Part I,
Chapter 2.

2. U.S. Department of Energy, "Standard Contract for Disposal of Spent
Nuclear Fuel and/or High-Level Radioactive Waste," Federal Register, Vol.
48, No. 75, p. 16590, April 18, 1983.

3. U.S. Department of Energy, World Nuclear Fuel Cycle Requirements — 1986,
DOE/EIA-0436(86), Energy Information Administration, Washington, D.C.,
1986.

-59-

Secretary Herrington. Today I want to give a brief status report
on the waste program and then focus on substantive issues which I
beHeve are the main interests of the Committee and which are ad-
dressed in the Mission Plan amendment. Last May I nominated
five sites and recommended to the President three of those sites for
characterization as candidates for the first repository. The three
sites are Yucca Mountain in Nevada, Deaf Smith in Texas, and the
Hanford site in the State of Washington.

The President approved my recommendation. With the Presi-
dent's approval of the three sites to characterize, site chracteriza-
tion began. Site characterization will take five to seven years, de-
pending on the site. Although we had planned to begin with explor-
atory shaft construction at one or two of the sites in this fiscal
year. Congress in the appropriation for the waste program for
Fiscal Year 1987 specified that no funds are to be used for drilling
any exploratory shaft at any site in Fiscal Year 1987. However,
Congress did allow for site specific work other than exploratory
shaft drilling to be conducted at reduced funding levels, and we are
proceeding with the allowable characterization activities.

Following the announcement of the President's approval of the
three sites for characterization for the first repository, I announced
that, based on the progress in selecting the first repository and
other factors, DOE had reassessed the timing of the Department's
activities towards identification of candidates for a second reposi-
tory. I announced that DOE had decided to postpone indefinitely
plans for any site-specific work related to a second repository. In-
stead, we are focusing on generic technical issues and analyses and
a continuation of current programs of international cooperation.
We continue to believe that a Monitored Retrievable Storage facili-
ty— that is, the MRS facility, must be an integral part of the waste
management system.

Although legally enjoined from submitting the proposal to Con-
gress, we stand ready to submit that proposal for consideration as
soon as the court permits us to do so. Significant progress has been
made regarding transportation, another integral part of the waste
disposal system. The Department of Energy has issued both a
Transportation Business Plan and a Transportation Institutional
Plan. There have been many other achievements to date in the pro-
gram, but I would like to now focus on the main points discussed in
the draft Mission Plan amendment, which I believe are the princi-
pal policy issues of interest to this Committee.

Number One, the issue of indefinite postponement of site specific
work for a second repository. Issue Number Two, extension of the
date contemplated for startup operation of the first repository from
January 31st, 1998, to 2003 to allow time to carry out the necessary
high quality technical program. Issue Three, inability to submit the
Monitored Retrievable Storage proposal required by Section 141 of
the NWPA to Congress because of litigation. Issue Four, interac-
tions with the States, affected Indian Tribes, and the public.

The experience gained in achieving the important milestone of
approval of sites for characterization and advances in the technical
planning of the program have led us to reassess the program and
schedule for the first repository. The new schedule as presented in
this draft Mission Plan amendment shows a five-year extension of

the date for the waste acceptance at the first repository from 1998
to 2003. The table attached to my statement shows the current
schedule as compared to the schedule contained in the 1985 mis-
sion plan.

There are several reasons for this extension. Among them are,
Number One, the recognition that more time should be provided in
the future for consultation and interaction with the States, the af-
fected Indian Tribes, and other parties, and Number Two, the rec-
ognition that more technical information is needed.

Since passage of the NWPA, it has been pointed out on many oc-
casions that the schedule and the siting process simply are not rec-
oncilable, that to achieve one it would be necessary to sacrifice the
other. DOE has attempted to meet both objectives and developed
an aggressive schedule that would have permitted the first reposi-
tory to begin accepting waste in January 1998.

At the same time, Mr. Rusche and I have been insistent that the
schedule would not be allowed to prevail at the expense of techni-
cal excellence and public participation. We now recognize that
more information, more consultation, and more time is required in
the near term to ensure public confidence in the development of
the first repository for long-term permanent disposal.

We realize that for many early actions we underestimated the
time required. Furthermore, DOE recognizes the potential for con-
tingencies that are yet to appear. The five-year extension for start-
up operations for the first repository, therefore, requires a reevalu-
ation of the waste acceptance strategy. Based on this reevaluation
we believe that the most advantageous course is the development
of an MRS.

As presented in the draft amendment that we have submitted,
DOE believes that it can meet the 1998 commitment through the
development of an MRS system. With an MRS capable of receiving
wastes in 1998, we can meet the contractual obligation with nucle-
ar generating utilities to begin receiving waste in 1998. We are,
therefore, hopeful that the legal impediment will be removed short-
ly and that we will be permitted to submit the MRS proposal to
Congress for consideration.

With regard to the indefinite postponement of the site specific
activities for a second repository, my decision last May was based
on a number of factors including declining projections of the rates
at which spent fuel will be discharged from commercial nuclear
power plants, and that is the most important.

We have not abandoned a second repository. In fact, even the
lowest current projections of spent fuel generation indicate that a
second repository will be needed. DOE, therefore, remains fully
committed to a two repository system. Under the revised schedule
for the first repository, the statutory limit of 70,000 metric tons
would be reached some time after the year 2025 if the annual rate
of waste emplacement is 3,000 metric tons per year. The actual
schedule for the second repository, however, is yet to be deter-
mined.

It will depend on more refined estimates of spent fuel generation
rates, the time needed for the first repository to reach the limit of
70,000 metric tons, and the time needed to develop the second re-
pository. The experience of siting the first repository suggests that

site specific screening leading to the identification of potentially ac-
ceptable sites should start about 25 years before the start of waste
acceptance for disposal.

Therefore, to have the second repository available by the year
2025 site specific studies need not start until the middle to late
1990s.

Another important issue is interaction with States and affected
Indian Tribes and the public. The NWPA requires DOE to seek to
enter into and negotiate written Consultation and Cooperation
agreements with States and affected Indian Tribes after approval
of candidate sites for characterization or earlier if an eligible State
or Indian Tribe requests. Some formal as well as informal negotia-
tions have occurred, but as of yet no C&C agreements have been
concluded. We plan to increase our efforts to improve productive
institutional relations and to negotiate formal C&C agreements. In
this regard, we are continuing a number of new initiatives to en-
courage these negotiations. For example, preliminary or partial
agreements or memoranda of understanding might be useful.

In conclusion, we sincerely hope that the amendment to the Mis-
sion Plan will provide a suitable vehicle for Congress to provide
any statutory direction it believes is needed for conduct of the pro-
gram.

This concludes my remarks, Mr. Chairman. I would like to add
one personal observation. This is not an easy program both for
Congress and for the Department of Energy. I consider myself in a
position similar to an executive officer of a corporation who has
made managerial decisions to keep an ongoing program viable and
moving to completion. I am in front of the board of directors now
asking for your input, your guidance, your advice. This is my best
estimate on how this program can be carried out. It has been put
in a draft Mission Plan amendment and is being submitted to Con-
gress, and I hope the Congress will respond to this and tell us, yes,
we are on the right track, or no, we are not doing it right.

One thing must be absolutely clear. We intend to carry out the
intent of this law as it is written and as Congress wants us to.
There is no intention by this Department, myself, or Mr. Rusche, to
freelance in this important program. This is what we think makes
sense, and we hope that Congress will guide us in our carrying out
of the program.

Thank you, sir.

[The prepared statement of Secretary Herrington follows:]

STATEMENT BY

JOHN S. HERRINGTON
SECRETARY OF ENERGY

before the

COMMITTEE ON ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE

JANUARY 29, 1987

Mr. Chairman and Members of the Committee:

I appreciate the opportunity to appear before you today to
review policy issues of interest to the Committee regarding the
program being carried out under the Nuclear Waste Policy Act of
1982 (the NWPA) . With me is Ben C. Rusche, my Director of the
Office of Civilian Radioactive Waste Management.

We have prepared a draft amendment to the Mission Plan for
the Civilian Radioactive Waste Management Program. In that
document, which we are sending to States and affected Indian
Tribes, the Nuclear Regulatory Commission and other Federal
agencies for comment — and will make available for public
inspection — we discuss significant developments and new
information in the waste program.

The Mission Plan is intended to keep Congress fully informed
on progress in the program and the amendment will ensure that the
Plan reflects current program status. After a 60-day comment
period, DOE will revise the amendment in response to the comments

as appropriate and will submit it formally to Congress for
information and direction. We would expect this to occur in
about 120 days from now. With your permission, Mr. Chairman, I
would like at this time to submit a copy of the draft amendment
for the record.

Today, I would like to give a brief status of the waste
program and then focus on the substantive issues which I believe
are of main interest to the Committee and which are addressed in
the Mission Plan amendment.

Last May, I nominated five sites in Mississippi, Nevada,
Texas, Utah and Washington as suitable for characterization and
recommended to the President three of those sites for
characterization as candidates for the first repository. The
three sites are: the Yucca Mountain site in Nevada, the Deaf
Smith County site in Texas and the Hanford site in Washington.
The President approved my recommendation.

With the President's approval of the three sites to
characterize, we have finally passed beyond the crucial decision
of where to focus our repository siting efforts and that action
formally marked the beginning of site characterization.

Site characterization will take five-to-seven years,
depending on the site.

Although we had planned to begin exploratory shaft
construction at one or two of the sites this fiscal year,
Congress, in the appropriation for the waste program for
Fiscal Year 1987, specified that no funds are to be used for
drilling any exploratory shaft at any site in FY 1987. However,
congress did allow for site-specific work, other than exploratory
shaft drilling, to be conducted at reduced funding levels; and we
are proceeding with other allowable characterization activities.

Following the announcement of the President's approval of
three sites for characterization as candidates for the first
repository, I announced that based on the progress in selecting
the first repository and other factors, DOE had reassessed the
timing of the Department's activities toward identification of
candidates for a second repository, i announced that DOE had
decided to postpone indefinitely plans for any site-specific work
related to a second repository.

We have not abandoned a second repository; we are continuing
studies for a second repository, as required by the NWPA. Those
studies are focusing on generic technical issues and analyses and
a continuation of the current program of international
cooperation.

We continue to believe that a Monitored Retrievable Storage
(MRS) Facility should be an integral part of the waste management
system. Although legally enjoined from submitting the proposal
to Congress, we stand ready to submit it for consideration as
soon as permitted.

As stated more than a year ago in review copies of a
proposal we made available, we believe that an MRS centrally
located to the majority of the spent fuel generated would
enhance the disposal system by receiving and consolidating the
spent fuel prior to shipping to the repository. DOE's intent
regarding MRS is to fulfill its statutory obligations under the
NWPA and to submit the proposal on MRS to Congress at the
earliest date practicable.

Significant progress has been made regarding transportation
— another integral part of the waste disposal system. DOE has
issued both a Transportation Business Plan and a Transportation
Institutional Plan. The Business Plan presents strategies for
procuring shipping casks and support services, and the
Institutional Plan lays the foundation for interactions among
interested parties for resolution of transportation issues. In
addition, we have issued a request for proposals for design and
engineering of shipping casks and fabrication of prototypes.

There have been many other achievements to date in the
program, but instead of further discussion of those, I would like
now to focus on the main points discussed in the draft Mission
Plan amendment and which I believe are the principal policy
issues of interest to the Committee:

1. Indefinite postponement of site-specific work for a
second repository.

2. Extension of the date contemplated for start-up

operation of the first repository from January 31,
1998, to 2003 to allow time to carry out the
necessary high-quality technical program.

3. Inability to submit the Monitored Retrievable Storage
(MRS) proposal to Congress required by Section 141 of
the NWPA because of litigation. And,

4. Interactions with States, affected Indian Tribes, and
the public.

The experience gained in achieving the important milestone
of approval of sites for characterization, and advances in the
technical planning of the program, have led us to reassess the
program and schedule for the first repository. The new schedule
— as presented in the draft Mission Plan amendment — shows a 5-
year extension of the date for the waste acceptance at the first
repository, from 1998 to 2003. The table attached to my
statement shows the current schedule as compared to the schedule
contained in the 1985 Mission Plan.

There are several reasons for the near-term extension.
Among them are:

o The recognition that more time should be provided in
the future for consultation and interaction with the
States, affected Indian Tribes, and other parties; and,

o The recognition that more technical information is

needed.
Since passage of the NWPA, many parties have insisted that,
given the controversial nature of the program, the schedule
specified in the Act was not realistic and not achievable. It
has been pointed out on many occasions that the schedule and the
siting process are not reconcilable — that to achieve one, it
would be necessary to sacrifice the other.

DOE has attempted to meet both objectives and developed an
aggressive schedule that would have permitted the first repository
to begin accepting waste in January 1998. At the same time, Mr.
Rusche and I have insisted that the schedule would not be allowed to
prevail at the expense of technical excellence and ptiblic
participation .

Me now recognize that more information, more consultation
and more time is required in the near-term to ensure public
confidence in and development of the first repository for long-
term (permanent) disposal. We will remain optimistic in our
planning, but realize that for many early actions, we
underestimated the time required. Furthermore, DOE recognizes
the potential for contingencies that are yet to appear.

The 5-year extension for start-up operations at the first
repository, therefore, requires a reevaluation of the waste acceptance

strategy. Based on a reevaluation, we believe that the most
advantageous course is the development of an MRS. And as
presented in the draft amendment, DOE believes it can meet the
1998 commitment through the development of an MRS facility.

With an MRS capable of receiving waste in 1998, we can
meet the contractual obligation with nuclear-generating utilities
to begin receiving waste in 1998.

We are, therefore, hopeful that the legal impediment will be
removed shortly and that we will be permitted to submit the MRS
proposal to Congress for consideration.

With regard to the indefinite postponement of site-specific
activities for a second repository, my decision last May was
based on a number of factors, including declining projections of
the rates at which spent fuel will be discharged from commercial
nuclear powerplants; progress in siting the first repository and
confidence in finding suitable sites among the three sites
approved by the President for characterization; the advantages to
be gained from the experience of the first repository; the
expectation of Congressional approval for the MRS facility; and,
responsible fiscal management.

I would like to point out, again, that we have not abandoned
a second repository. In fact, even the lowest current
projections of spent fuel generation indicate that the second
repository will be needed. DOE, therefore, remains fully
committed to a two-repository system.

The specific requirement related to the second repository is
stated in the NWPA in terms of the maximum amount of spent fuel
that the Nuclear Regulatory Commission can allow to be emplaced
in the first repository until a second repository is in
operation. The NWPA sets this figure at 70,000 metric tons of
uranium.

Under the revised schedule for the first repository, this
limit would be reached sometime after the year 2 02 5 if the annual
rate of waste emplacement is 3,000 metric tons. The actual
schedule for the second repository, however, is yet to be
determined; it will depend on more-refined estimates of spent
fuel generation rates, the time needed for the first repository
to reach the limit of 70,000 metric tons and the time needed to
develop the second repository.

The experience of siting the first repository suggests that
site-specific screening leading to the identification of
potentially acceptable sites should start about 25 years before
the start of waste acceptance for disposal. Therefore, to have
the second repository available by about 2025, site specific
studies need not start until the middle to late 1990s.

earlier, if an eligible State or Indian Tribe requests. Some
formal as well as informal negotiations have occurred, but as yet
no formal C&C agreements have been concluded.

Given the nature of the program and the reality that the
perspectives of the States and affected Indian Tribes often
differ from DOE's, we recognize that formal agreements may not be
easy to reach. But we also recognize that the success of the
waste-management program may depend largely on the success of
institutional relations as well as interactions with the public.

We plan to increase our efforts to improve productive
institutional relations and to negotiate formal C&C agreements.
In this regard, we are considering a number of new initiatives to
encourage these negotiations. For example, preliminary or
partial agreements or memoranda of understanding might be useful.

Conclusion

In conclusion, DOE has adopted the principle that its
schedule would not be pursued at the expense of consultation and
interaction with affected States and Indian Tribes and the
public.

The revised schedule for both the first repository and site
specific activities for a second repository allows more time for
interactions with affected and interested parties and for
acquiring additional information necessary to successfully
develop the waste disposal system.

Furthermore, we sincerely hope that the amendment to the
Mission Plan will provide a suitable vehicle for Congress to
provide any statutory direction it believes is needed for our
conduct of the program.

Mr. Chairman, this concludes my remarks. I would be happy
to respond to any questions you may have and, with your
permission, I may call on Mr. Rusche for more details.

Schedule for the first repository

a,b

Hlltctone

Current
■cbedule

1985 Mission
Plan schedule

Start of exploratory-
shaft construction
Tuff
Basalt

Salt

Start of In-sltu testing
Tuff
Basalt

Salt

Bnd of site characterization^
Tuff
Basalt

Salt

Draft environmental Impact
statement

Final environmental impact
statement

Submittal of the site-selection
report to the President

Submittal of the license
application to the Nuclear
Eegulatory Conmission

Receipt of a construction
authorization from the
Nuclear Regulatory Commission

Start of construction

Start of phase 1 operations

Start of phase 2 operations

Second quarter 1988
Third quarter 1988
Fourth quarter 1989

Fourth quarter 1989
First quarter 1992
Fourth quarter 1991

First quarter 1992
First quarter 1993
First quarter 1993

Fourth quarter 1993

Fotirth quarter 1994
Fourth quarter 1994

First quarter 1995

First quarter 1998

First quarter 1998
First quarter 2003
Second quarter 2006

Third quarter 1986
Third quarter 1986
Third quarter 1987

Third quarter 1988
Fourth quarter 1988
Second quarter 1989

Third quarter 1989
Third quarter 1989
Third quarter 1989

Third quarter 1990

Fourth quarter 1990
First quarter 1991

Second quarter 1991

Third quarter 1993

Third quarter 1993
First quarter 1998
First quarter 2001

*The schedule is given in calendar-year quarters.

^This schedule is based on a budget requirement of $725 million for fiscal
year 1988.

*End of the testing necessary for the selection of the repository site and
the preparation of the draft environmental impact statement.

The Chairman. Thank you very much, Mr. Secretary. As I have
said many times and I want to repeat here, it is a very difficult
program, very hard to implement, and we must make sure that
politics is removed from this issue completely and that the appear-
ance of politics be removed from the issue. Because to the extent
that the program looks political, then everyone loses confidence in
it. It becomes a political battleground. We have here a very highly
important national priority which must be done fairly, legally, in
accordance with the Act, expeditiously, and in a way that offends
as little as possible. I think it is possible to offend not too much
when the real facts about what the Act requires are brought out, so
I want to emphasize that about the politics of this matter.

Secondly, in your letter to the Congress three issues have
emerged which you say "warrant Congressional attention. The
three issues are indefinite postponement of site specific work on
the second or eastern repository, extension of the date for opening
the first respository from 1998 to 2003, and inability to submit the
MRS proposal to Congress as required by the Nuclear Waste Policy
Act because of litigation.

The key question is: Is the administration asking Congress to
amend the Act to address these issues?

Secretary Herrington. Mr. Chairman, I do not feel an amend-
ment to the Act is necessary, and I do not think we should in good
conscience open up the Act for amendment or a revisiting. Con-
gress can endorse this draft Mission Plan amendment in two ways.
Congress can step up and say, we think the Department of Energy
is on the right course. We like the draft Mission Plan amendment.
Or you can support us through the appropriation process because a
budget has been submitted based on this draft Mission Plan
amendment. Either way, we would take it as a sign that Congress
thinks we are doing a good job on this.

I, too, Mr. Chairman, must say politics have no place in this pro-
gram or the decisions in it and they have not entered any decisions
I have made. I have been criticized by members of my own party
for these decisions. The President approved one of the sites in a
State where one of his very best friends was a Senator. I just do
not believe the political argument is viable.

What we are trying to do is manage a difficult program in a busi-
nesslike way, and that is going to continue during the next two
years, and I am in charge of it. We will be responsive to this Com-
mittee and to Congress.

The Chairman. Well, I would submit that the indefinite post-
ponement of site specific work on the second repository and the ex-
tension of the date for the first repository would require legislation
and that the Act clearly requires both. Mr. Secretary, would you
describe for us how the program is going right now, and where you
would like it to go under the amended mission plan?

Secretary Herrington. I could make some general comments,
Mr. Chairman. I think most of it is in the draft Mission Plan
amendment which I think is very detailed. In this program, we
have encountered, obviously, tremendous opposition. You can say
two things about this program that are absolutely true. We desper-
ately need a nuclear waste repository in this country. We cannot

have nuclear waste sitting around in pools of water around Ameri-
ca's utilities. Number Two, nobody wants it. Both of those are true.

We have the technical basis in this country. We have the scien-
tific basis, and we have the people to develop a safe repository, one
that is environmentally sensitive, and a transportation system that
can go with it. I think that we are learning as this process pro-
gresses that we need to have better communication with States,
and with local jurisdictions. We need to work closer with them and
be more responsive to them. That is going to take more time, and
that is part of the slippage of five years.

The Chairman. One comment and one quick question, and then I
will open it up. We have had conversations in the past about the
so-called benefits package. It is very clear that the State which fi-
nally gets both the repository and the MRS are going to have a lot
of benefits, but those benefits have never been detailed, unless they
are clearly stated in the mission plan. There has never been detail
of what a State can expect. When will that be set forth with more
specificity, because, frankly, all the States, at least some of the
States, worry that these vague promises about the benefits may
evaporate once they get the repository or the MRS.

Secretary Herrington. I think that decision, Mr. Chairman, is in
the future. I think it would be a mistake to start dealing out bene-
fits to waste repository sites at this stage of the proceedings before
we know which site is viable. We have put in the draft Mission
Plan amendment at Page 14, third paragraph from the bottom, a
paragraph that deals with what Congress may want to consider in
additional financial assistance. This program is a very generous
program for States and local communities that may get the waste
site either during characterization or during final siting. It is a
good program.

I frankly am surprised that some State has not stepped up and
said here are 2,500 to 3,500 jobs, a chance to finance our education-
al system, a good, viable industry for our State, and said, we would
like to investigate the possibility of taking this. I would expect
some time in the process for something like that to happen.

This is a good program, and it is technically sound.

The Chairman. Finally, Mr. Secretary, we provided for charac-
terization of the three sites and at the time the cost estimates were
about $60 million per site. Now we are advised that it will be about
$1 billion per site. Are you absolutely convinced that characteriza-
tion at $1 billion per site is essential or is there a way to choose
one of those sites without characterizing all three sites which
would give us another couple of billion, a large amount of which
could go into a benefits package?

Secretary Herrington. A lot of input we have had in this par-
ticular program has asked us if we would not like to characterize
five sites, and we have resisted that and limited it to three. All of
them are different. There is a salt structure, there is a tuff struc-
ture and a basalt structure. They are all different. They are all
unique. And they are all designed to decide which one environmen-
tally and on a technical basis will be the best. If the program needs
to be in place by the year 2000, I would hesitate against limiting us
to one site. It might not work. We need some diversity in this.

On the costs, I have reviewed them with Director Rusche. I think
he could answer in more detail on how the cost estimates got to $1
billion per site if the Chairman would like.

The Chairman. Before these hearings are over I would like to do
that, because I think that is a very keen, critical question. And
there are a series of voices being raised that we ought to try to
choose a site without characterizing all three, but we will get into
that later.

Senator McClure?

Senator McClure. Thank you, Mr. Chairman. I appreciate the
opening comments that the Chairman has made and I do not dis-
agree at all that this program must be administered in such a way
that it has not only the appearance but the reality, or, turn that
around, not only the reality but the appearance that it has not
been manipulated for partisan political purpose, and I think that is
what the Senator intended to say.

I do not think any of us believes it is not a political process. How-
ever, I suspect one of our guests here this morning. Senator Adams
from the State of Washington, would be one of those who says it is
a highly political issue. That may be one of the reasons he is here
this morning. So I do not think we can, no matter how we would
like to address this, divorce ourselves from the political process you
are involved in in testifying here. But I want to underscore both
what the Chairman said and what I said in my opening remarks. I
side I believe the statute sets forth certain guidelines and certain
dates and certain activities that must be undertaken, and that if
indeed the statute is not amended you must in good faith under-
take them.

I do not quite understand how you can divorce yourself from the
requirement of the statute to undertake a site selection process for
a second repository and say, but we are going to postpone indefi-
nitely any consideration of it, without erecting the immediate
public reaction that the steps taken with respect to the second re-
pository required by the statute are only a political exercise and
not a real technical exercise.

One of the reasons for the requirement of the second site, as I
am sure you are aware, but perhaps requires some repetition, the
requirement for a second repository is so you can say with good
faith and with credibility to the State of the first repository you
are not going to have all there is ever generated in the United
States. Now the time frame is very, very difficult here, because if
we wait another ten years before we even begin the process of
characterization of the second repository how in the world do we
expect to be able to say to the State that has the first repository
you can expect there will be a second repository?

I know that has been already. It is going to be said again. I think
the State of Tennessee, which happens to be the recommended site
for the MRS, has had some assurances too that we are really seri-
ous about both the first and the second, and that the MRS is not
the only one that we are going to end up having. I welcome your
suggestion here today that the administration is committed to the
necessity of a second repository, and I commend to you the desir-
ability of a timetable and an activity schedule that gives reality to
a second repository.

Mr. Secretary, do you have any comment or any way in which
you can extend to the first repository State and the MRS repository
State, wherever that may ultimately be, that indeed the process
will predictably and dependably yield a first repository, a second
respository, and an MRS which is the stated policy of the Congress?

Secretary Herrington. Senator McClure, I could not agree more
with what you have said, and I want to be very clear that we are
committed to a second repository. In this plan that issue is set for-
ward. What I have said in the draft Mission Plan amendment is, I
do not think you have to decide today where that second repository
is going to be. Two reasons. One, are we going to have the amount
of waste that we think we are going to have in the time frame of
2025? Will the NRC allow plants to open? Will plants shut down?
Will we move to more of a policy based on coal or some other type
fuel?

We do not have to make that decision today. You can make it in
1995 and still have 25 years to have your repository ready, but that
does not lessen our commitment to it. Number Two, there is a
small matter of between $700 million and $900 million being spent
on that second repository. I do not think you have to spend it now
when you may not have to spend it until 1995. I think that is good
business planning myself.

Now, if Congress, the board of directors for this company that is
trying to manage this program, says, Mr. Herrington, that is not
correct, when we said get a second repository we meant get it and
get it now, then we are going back to it and get it.

Senator McClure. Thank you very much for your statement. I
have a number of other questions but I will submit them for re-
sponse in writing.

Thank you, Mr. Chairman.

The Chairman. Senator Domenici.

Senator Domenici. I do not think I was here next if you are fol-
lowing the first arrival, but I am pleased to go if nobody objects.

The Chairman. Since we do not have an order we are calling on
you.

Senator Domenici. Great.

Mr. Secretary, let me just tell you, I know you have got a terrible
problem, and I think this mission plan probably is a very good
faith effort, and probably your analogy that you are the CEO is a
neat idea, but the truth of the matter is that a group of Senators
from both sides of the aisle, a group of Congressmen for years
fought over a statute.

I think it is fair to say that most of us do not think lame duck
sessions are ever good for anything. Is that a fair statement, Mr.
Chairman?

The Chairman. Yes.

Senator Domenici. But I think there was a huge sigh of relief be-
cause the only lame duck I have participated in got this bill. Is that
not right? We did it in a lame duck session, and you really cannot
throw it away, I am afraid. I mean you cannot change it to a board
of directors and a CEO. I mean, we struggled and fought and we
put all this stuff in there and these specific things, and frankly we
said we need a second repository and you have to get on with it
because we figured you were going to be right in the mess you are

100

in. When you said you were not going on with it you gave the
whole body poUtic a second shot at not wanting the thing.

Now, maybe they would have done it anyway, and I am not
trying to heap undue results on your shoulders, but you played
right into what Slade Gorton and a whole bunch of people said was
going to happen. If you are sticking on the one repository, you are
telling one whole part of America, you take all the waste, and that
happened. Now, I hope we can get out of the mess, but I regret to
tell you I do not think — you know, you want to know what the
board of directors is iaying. This member of the board says we
have got to change some laws if we are going to do this. I am not
sure of that, but that is what I vote for.

I mean, you get on with following the law or you conclude you
cannot, throw up your hands, and we amend it in some way. Now,
I have not thought that through terribly in depth, but that is what
I think, a very nice, neat effort, but I really am afraid it is not up
to the struggle we have had and it will not get rid of the problem. I
mean, the same reason we took so long to write the law is going to
affect your desire that this board of directors help you.

I mean, the board does not agree. That is why we finally pro-
duced a bill. So having said that, let me just ask you one question.
We appropriated, to my recollection. Senator Johnston, with Mark
Hatfield leading the team, we appropriated $420 million and we
said you could have an extra 79 for this program but we put a con-
dition on that 79 because we wanted you to take a special effort at
working with the States. These words, consultation and coopera-
tion, that could end up actually with negotiating an agreement
with States.

We said you do that, and the $79 million we held back was kind
of conditioned on your doing a good job at that. What have you
done on consultation and copperation efforts, or have we reached
the point where the States are so angry that you just cannot pro-
ceed?

Secretary Herrington. Senator, I am convinced that we have
made every effort for C&C agreements and we have talked this
over at great length. It takes two to make an agreement. It is like
arms control. You can talk and talk and talk. Whatever proposal
comes out of one of these three States, let us have a national forum
to debate it. Let us have other things happening. We have gone the
extra mile and I continue to go the extra two miles. We need to
work this. But the plain fact is this.

The political climate is, these three States do not want the nucle-
ar waste site in their State, and they will continue to fight it. We
have ongoing litigation in every court they can possibly file. It is
difficult, and I have to disagree with you that we have jeopardized
the program on the second repository site decision. I think this pro-
gram is moving forward in good shape. It has caused a lot of heart-
burn to a lot of people. People in my own Department wish it was
in some other Department. But I think we are doing a good job on
it.

Senator Domenici. Look, let me phrase it another way. I do not
know whether anybody is going to be able to carry it out. Okay? I
will start with that. But frankly, I do not think you can just ignore
the statute and think that we can have some conciliatory process

101

and make it work, and how you go from that statement to getting
something to work I think is going to take a lot of time and effort
by a lot of us, but I just do not think we can casually say we think
you are doing good. Let us all agree with that and go. You are
doing great. We love you. This is neat. I do not think anything will
happen.

Secretary Herrington. I do not know of a single person in this
program who has been told they are doing well by anybody. We
have people coming back from New Hampshire and some of these
States that say do not ever send me to that State again. I mean,
this is difficult stuff, and nothing can be handled casually in this
thing, and I hope we have not been casual about it, but I am look-
ing to Congress. It is not going to be 100 percent to pat us on the
back and say, good job. I want Congress to say either through the
appropriations process or through this Committee, you are on the
right track. If you do not, I have to go back to the drawing board
and reevaluate this Act and take a different approach. I think this
is a reasonable approach.

Senator Domenici. Thank you, Mr. Chairman.

The Chairman. I must say if I may interject that simply by ap-
propriating money does not mean we approve specific decisions like
cancelling the eastern repository. We have to appropriate money,
but simply because we do will not mean that any imperfections in
following the law are somehow agreed to.

Secretary Herrington. Mr. Chairman, I want to try to get this
word "cancel 'out of the vocabulary. Page 11 of the draft Mission
Plan amendment says we are committed to a second site, and it
goes into great detail as to how and when that decision has to be
rnade. Over and over we have the issue of did you cancel and why
did you cancel, and we have got to clear that up. It has slid. Other
time frames in this program have slid in our Mission Plan. We are
not perfect on this. We think this is realistic, but cancelling is not
in our vocabulary.

The Chairman. Senator Bingaman.

Senator Bingaman. Thank you.

Mr. Secretary, let me just follow up on my colleague. Senator Do-
menici's questions and say that I agree with the sentiments that he
expressed. It strikes me that an underlying assumption of the pro-
posal to postpone the second site is that the political climate, which
is today very hostile, will improve. Is that inaccurate? Is it your as-
sumption that things will — that it will become easier to do this as
we put it off?

Secretary Herrington. I have to say that I think they will
become easier but that is not a reason for putting it off. I am very
hopeful that people as they come to understand this plan and as we
work in the States can explain what we are doing and the techni-
cal soundness. I cannot promise it, but I think it will happen. We
would certainly like to see us lessen the impact.

Senator Bingaman. Well, let me just say that I am doubtful that
it will become easier. I am more inclined to think that it will
become more difficult, and as a political matter the more the Con-
gress were to go along with postponement, the more difficult it
would be to ever proceed. I do not know if that is an accurate as-
sessment. Everybody has got their own view of what the future

102

might bring. But I just have the sense that postponement and the
Congress going along with a decision by the administration to post-
pone is contrary to getting the job done.

Secretary Herrington. Senator, let me say two things. We are at
a crossroads for this program, and I think everybody here under-
stands that. This is a very serious crossroads where we get the di-
rection of this program. For the first time, we are starting to get
some really serious questions from business people and affected
States asking what is this program all about, how does it work,
what kind of impact aid is there, how does the transportation
system work — people are beginning to really focus on it. You have
a national election gone. The politics are out of it. There is some
serious thinking going into this thing. It has been so hyped and so
political and such a media event up to this point I see some erosion
now.

I do not believe that this extension of five years is going to make
a big difference. The fact is this. Our technical people tell us we
cannot meet the time deadlines in here. We will pull out all the
stops and do everything we can to meet these deadlines, but realis-
tically you have to know that 1998 is not a realistic date at this
point.

Senator Bingaman. 1998 is not a realistic date to

Secretary Herrington. Accept the first waste, unless we have an
MRS.

Senator Bingaman. What about the second repository, though?
Now the dates on that, is there some technical reason why we
cannot meet the dates the law prescribes for that?

Secretary Herrington. No, I would say not. It is simply a busi-
ness decision. The second repository does not need to come into
being until 70,000 metric tons exist in the first repository, and that
will not happen in the time frame laid out in the Act and, that
tells us we will not need the second until 2025, so it is simply a
scheduling problem. Our point is this. You need 25 years to go
through the process and build it. Therefore you do not need to
make a decision on where the candidates are until the mid to late
1990s. If you do it today you are going to have a lot of grief and you
are also going to have an expenditure of $700 million to $900 mil-
lion.

Senator Bingaman. I am just wondering if you are going to have
a lot more grief if you do it today than if you do it in the mid-
1990s. I am just wondering if the longer you postpone the decision
on the second repository the more grief you do not encounter.

Secretary Herrington. There is one important point that I think
you all have to remember. The second repository is not authorized.
It is only the first repository that is authorized for construction, so
we do not have a clear signal yet on the second repository as far as
authorization.

Senator Bingaman. So it is your view that Congress did not
intend for you to go forward and pick a site for a second reposi-
tory?

Secretary Herrington. No, sir. It is my understanding that Con-
gress is very clear on this. They want a second repository before we
have more than 70,000 metric tons of waste in the first repository.

103

What I have said is, the timing can shp to the mid to late 1990s on
the decision on where the candidates are.

Senator Bingaman. But as you understand what Congress has di-
rected you to do, have we directed you to go ahead and identify a
site for a second repository at this time? Or is that not part of your
instructions?

Secretary Herrington. The lawyers that have reviewed our
draft Mission Plan amendment say that we are within the terms of
the Act and that we are acting legally in putting in this draft Mis-
sion Plan amendment our suggestion to make that decision in the
1990s provided we are still committed to the second repository, and
we are.

Senator Bingaman. So you think the statute as drawn gives you
the flexibility to postpone a decision until the mid-1990s on any
second site?

Secretary Herrington. On the siting, yes.

Senator Bingaman. On the location of the second site.

Secretary Herrington. Now, that is what our draft Mission Plan
amendment says and that is what we think is within the law. I
really need Congressional input on this. It is a very gray area. I
need the Congress to say yes or no. I mean, the motives of the
people working in this program, Ben Rusche, myself, the hundreds
of people that are working on this, their motives are good. We
want to do what you want us to do.

Senator Bingaman. Well, I certainly do not question your mo-
tives at all. I guess again as one member of this board of directors
that you referred to I believe postponement makes the issue more
difficult. I believe that at least from my perspective you need to go
forward as quickly as humanly possible and implement the statute.
And I will go back and read the statute in light of your statements,
but I had thought the statutes mandated the picking of a second
site before the mid-1990s, but I will certainly review that.

The Chairman. If the Senator would yield on that, if I may read
into the record an opinion from J. Michael Farrell, General Coun-
sel of the Department of Energy, to Ben Ruche dated September 5,
1986, he says, "Congress intended to reserve an opportunity for de
novo consideration before construction of any second respository. It
nonetheless left intact the specific requirements to make recom-
mendations regarding the site of the second repository in 1989 and
1990. As statutory requirements they remain intact until repealed,
amended, or supplanted by new legislation adopted through the
constitutionally required procedures of bicameralism and present-
ment to the President."

Senator Bingaman. Mr. Chairman, may I please just ask one ad-
ditional question on the same subject? I am just reading Public
Law 97-425. It says here, "Not later than March 31, 1990, the
President shall submit to the Congress a recommendation of a
second site from many sites already characterized that the Presi-
dent considers qualified for a construction authorization for a
second repository."

That strikes me as a fairly clear mandate that you cannot wait
until the mid 1990s. I do not know how your attorney explains that
away.

The Chairman. What I just quoted was consistent with that.

104

Senator Bingaman. Right.

Secretary Herrington. This is a quote from the general counsel
of the Energy Department. There are a number of time frames in
this law, one that was set forth, and as it is today, many of those
time frames have slipped in the mission plan. We have not been on
schedule. Congress has not said anything. We are saying today this
is another one we would like to slip to the mid-1990s. If you do not
okay this or if you do not appropriate according to the plan we will
go back and review that and take a stricter interpretation.

Senator Bingaman. How does the action or inaction of Congress
in appropriating money influence a specific statutory requirement
that you submit a second plan by March 31 of 1990? I do not under-
stand that.

Secretary Herrington. My feeling is that like all of these
projects when they are instituted, you cannot cover every contin-
gency when you make the law. We are now trying to formulate the
solution to the law and getting it moving and guaranteeing that we
get a repository, and we have not taken any irrevocable action on
this. This Plan says how we do it. And in here it says we would
like to slip the decision on the second. That may require changes in
legislation. I do not think so. I think doing it through this docu-
ment can ensure that new date.

Senator Bingaman. Thank you, Mr. Chairman.

The Chairman. Senator Hecht.

Senator Hecht. Thank you, Mr. Chairman.

Mr. Secretary, as you know, in Nevada we have the weapons nu-
clear weapons testing, which I think is very important for not only
the security of America but the security of the free world. Last
June I asked you about the effect of manmade earthquakes result-
ing from nuclear weapons weapons tested the at Nevada test site.
Have you addressed that in great detail?

Secretary Herrington. Senator, largely through your interven-
tion and your bringing the subject up to us we have flagged this
particular issue for the Yucca Mountain site because of its proximi-
ty to the test site. We do not know what the effect is, but it is one
of the things that needs to be investigated during the time that we
go through the characterization. I think you will be pleased to
know that every bit of work has an independent review on each
site, independent through the National Science Foundation-
excuse me, the National Academy of Sciences. There is an inde-
pendent check on everything our technical experts do on this.

Senator Hecht. Just for the audience, so they will all know in
yours and my vernacular, it is about a good four iron away. Is that
about right? A little bit further than that.

Secretary Herrington. Certainly not my four iron.

Senator Hecht. Also consider the fact that Yucca Mountain lies
on an earthquake fault line and there is a live volcano roughly 100
miles away. Why did you not address that in your Department of
Energy study?

Secretary Herrington. We have considered those on a prelimi-
nary basis through the EAs, which are the environmental assess-
ments, but they need to be considered in depth, and we will.

Senator Hecht. Let me ask you this. I think that we should have
a scientific panel composed of independent scientists who under-

105

stand earthquakes and what they would do, how they could trigger
another earthquake because of the close proximity. Would you sup-
port or oppose an independent scientific panel looking at this?

Secretary Herrington. I just do not see any benefit out of that. I
think the National Academy of Sciences is as independent as you
can get, and they will run a thorough review of all the technical
bases. I think the State of Nevada should have an independent seis-
mologist/geologist person to work with us and to review our re-
sults. I do not see the good you could get out of an independent
panel.

Senator Hecht. Just to clarify that issue in people's minds,
safety is your Number One priority and you are doing everything
you can regarding safety. Would you be against it if I would ask
the Chairman to have a scientific panel independent of DOE?

Secretary Herrington. I would like to review with some of the
technical experts what effect that might have on the process and
further delay in the process. I am very concerned about trying to
meet these timetables, and I would like a chance to submit that
answer for the record.

[The information follows:]

The Department of Energy has asked the National Academy of Sciences to make
the Board on Radioactive Waste Mangement available to provide Board oversight of
activities during the important site characterization phase in the first repository
program. The Academy has responded positively in fulfilling this responsiblity and
actions are in process for implemention. Such oversight would give particular emph-
sis to site-specific activities and to the establishment of scientifically sound criteria
and methodolgy for comparative evaluations of the candidate sites through the es-
tablishment of suitably constituted panels of the Board.

We believe that there is no group better able to fulfill an oversight responsibility
for the site characterization phase in the first repository program than the National
Academy of Sciences' Board on Radioactive Waste Management. This Board can
marshall the best expertise available to provide independent oversight of the De-
partment's technical activities during site characterization. The panels established
by the Board will certainly consider such site specific concerns as the potential for
earthquakes at the Yucca Mountain site and other technical concerns identified by
State and Indian Tribe representatives.

Senator Hecht. Fine. In reviewing the amendment to the mis-
sion plan I noted that you proposed to have the site characterza-
tion work begin at Yucca Mountain before it begins at the other
two sites and finish at Yucca Mountain before it finishes at the
other two sites. Why did you do that?

Secretary Herrington. There is no particular reason. I would
ask Mr. Rusche if he would comment on that.

Mr. Rusche. Senator, the characterization effort is indeterminate
in terms of the actual requirements of the work that we are going
to be doing. Prudence dictates that as soon as we can begin we
ought to begin and get the information as soon as we can. That is
purely and simply the rationale.

Senator Hecht. Do you not think it would be fair for all the sites
involved if we did it all at the same time, started and finished at
the same time?

Mr. Rusche. I have no earthly way of telling what those times
are.

Senator Hecht. We will get back together on that.

Mr. Rusche. I would be glad to discuss it further, sir.

106

Senator Hecht. I have been advised that your own documents
say you have starting dates of the first quarter of 1992 for the tuff
site, the basalt site starts the first quarter 1993 and the salt starts
the first quarter of 1993.

Mr. RuscHE. Those are the earliest times we can begin, given the
preparation that is required for all of the sites, including the
Nevada site.

Secretary Herrington. Senator Hecht, one of the things we have
to remember is that you have to drill two vertical shafts in three
different and distinct types of geologic formation, to different
depths, encountering unknown things along the way. I do not know
that you can plan this to begin and end at the same time.

Senator Hecht. I am going to give you a little map of America
right now, and I want you just to look at it, and I am going to give
the press one, too, and it shows of the roughly 124 commercial nu-
clear power plants either at work now or under construction practi-
cally all of them are in the east and yet the sites are in the west.
You mentioned transportation. Will this not be a tremendous
amount of excess cost?

Secretary Herrington. This has been a question of east versus
west that has come up many times in administering this program.
I do not think it was the intent of Congress to make this an east
versus west issue. The issue is where is the best geologic repository,
and we have looked around the country and come up with five
sites, and recommended three for characterization. To me cost is
not your Number One factor in dealing with this subject. It is the
viability of the program, it is the integrity of the project, and it is
how you handle it.

Senator Hecht. Let us go on. You just mentioned cost. I under-
stand we are studying other countries and how they handle their
nuclear problem, nuclear waste. France is recylcing their nuclear
waste. You have mentioned 70,000 metric tons. Have you taken
into consideration during this extra five-year study the feasibility
of recycling our waste?

Secretary Herrington. Yes, we have.

Senator Hecht. What have you come up with?

Secretary Herrington. The French were here this week, the
head of the French nuclear CEA, and I have met with him in
France. If you reprocess it does not change your waste problem.
You are dealing here with a unit of heat and the volume is what is
important. The idea that you can reprocess waste and get less
waste is simply not viable.

Senator Hecht. I am led to believe that you can get rid of 85 to
90 percent of what they call the hot stuff.

Secretary Herrington. I will let Mr. Rusche comment on the
technicalities of it, but after talking to the French and West Ger-
mans and Japanese, I am convinced that that may not be techni-
cally correct.

Mr. Rusche. Senator, the basis for design of a repository or a dis-
posal facility is essentially based on the ability to dispose of heat
that arises from the waste or the spent fuel. It is true in reprocess-
ing the material, you can recover unexpended fuel such as plutoni-
um and uranium and recycle that material, but the amount of
waste that is generated is the same for each megawatt hour or

107

megawatt day of energy that is extracted, so although the volume
of the material, if looked at in its pure form, could be changed, it
does not seriously affect the design of the repository.

I would be glad to discuss that in more detail.

Senator Hecht. Also your handling of military waste and civilian
waste is done differently today. Is that correct? Is the military
waste recycled and used again for plutonium?

Mr. RuscHE. The military waste is from reprocessing of defense
fuel for the purpose of producing materials for the national defense
program. It does not recycle the waste. We are recycling, or recov-
ering and reusing fuel.

Senator Hecht. I understand that. All right. But you do handle
it differently, the military from the civilian.

Mr. Rusche. Indeed, after reprocessing the waste in the United
States for the defense program or in France or in other countries
that might be reprocessing, it is generally thought of as being
placed in glass or vitrified material for disposal.

Senator Hecht. Are you going to analyze this? In other words, is
this in your opinion the right way to go, to have two different
waste types, in other words, two different processes for military
and civilian?

Mr. Rusche. I believe, sir, if you look at the Act, the Act requires
the repository to be capable of accepting both types of waste so that
if the industry were to choose to reprocess, we would be required to
have the repository designed to receive such material. It just hap-
pens that for the national defense program that is the form in
which it appears. Both forms are acceptable, and the repository is
capable of accepting and disposing of both forms.

Senator Hecht. I have a lot of other questions, Mr. Chairman,
but I know others want to speak, so perhaps I can come back at a
later time.

The Chairman. Thank you, Senator Hecht.

Senator Evans.

Senator Evans. Thank you, Mr. Chairman.

Mr. Secretary, I do not want to revisit questions which have been
asked by virtually every one of the preceding Senators. Are you
willing to recognize now — we can get off this if you are willing — to
stipulate that in spite of best intentions that under this Act it is
illegal to postpone deliberately any part of the Act, the deadlines of
which are explicitly set forth in the Act?

Secretary Herrington. I do not think I can accept that state-
ment in totality.

Senator Evans. Well, to what portion do you accept it?

Secretary Herrington. We feel that we have acted within the
spirit of this Act by preparing this draft Mission Plan amendment.

Senator Evans. I am not talking about actions today. I am talk-
ing about actions that were taken six, seven, eight, nine months
ago.

Secretary Herrington. I think you can postpone the decision on
the site. You certainly cannot cancel it.

Senator Evans. Where in the Act, not now because I am sure
you cannot find it, but would you please search and tell me where
in the Act you find that ability to unilaterally postpone explicitly

108

without amendment of the Act expHcit deadlines which are very
clearly established, the numbers, and it says "shall"?

Secretary Herrington. I will endeavor to search the Act and
find that, sir.

Senator Evans. I listened with great interest to the CEO versus
board of directors relationship. I have had an opportunity over
time to serve on half a dozen or more corporate boards of directors.
I must say that if a corporate board of directors gave to a CEO ex-
plicit requirements to carry out certain functions and the CEO on
his own decided that he wanted to modify or change those. If we
then came back nine months later and asked the board of directors
for ratification after the fact, as you are now doing with your re-
vised mision plan, what do you think the action of the board of di-
rectors would be?

Secretary Herrington. Obviously, that is a hypothetical ques-
tion. [General laughter.]

Senator Evans. It may not be too hypothetical.

Secretary Herrington. Let me ask you one. What would you do
with a CEO who did not come back to you as the board of directors
and said, look, we do not have to spend $700 million or $900 million
and in fact we may not need the site based on current projections
of U.S. waste. What if I moved ahead and spent this money and
moved on an unreasonable course without coming back and saying
this is an alternative. Is it reasonable? Is this within the spirit of
the law? And is this something you would like us to do?

I think I am meeting my responsibilities here. I can guarantee
you, Senator Evans, that we will carry out the spirit of this law on
a strict basis, and if this draft Mission Plan amendment is not ap-
proved affirmatively or if the budget is not appropriated, if we get
any signals from the Congress that this is not the thing to do, then
we will go back to the drawing boards.

Senator Evans. I would thoroughly agree with you. I would be
terribly disappointed if that CEO had not come back and said:
"Look, here is the way to save some money, here is a way to do the
job better, let us try to do it, give me the opportunity to do that."
In this mission plan you are right on target. You are just a year
late. You did not come and ask us first. You went ahead, did it and
then told us. That is not the proper relationship between a board of
directors and a CEO, in my view.

Secretary Herrington. First of all, there has been no prejudice
at this point. The decision was made in May for a postponement.
This report was prepared and it is before the 100th Congress now. I
think we can agree the program is not on the proper times and we
need a five-year extension. We ought to debate that now. We ought
to look at the second repository timing. We should not walk away
from it all. We ought to endorse the MRS proposal that we have in
this plan. We need an MRS or this program is not viable, and this
is the year to set this plan in concrete and make this thing viable
because we need it.

Senator Evans. I certainly agree.

Senator Domenici. Would the Senator yield?

Senator Evans. Yes.

Senator Domenici. Let me say, Mr. Secretary, you brought the
analogy of the COE and the board up. I just want to tell you in

109

response to your question about the $700 million to $900 million
and the second repository, if I am one mem.ber of the board I would
not fire you, as you imply. I would give you a bonus if you spend
the $700 million to $900 million on the second repository if you get
a first one started, which is indeed what this Act has in mind. You
will not go with that second one down to the final point unless that
first one has got started, and for that you would get a bonus, so I
do not think this board member thinks you would be wasting
money. I just want you to know that.

Senator Evans. Let me proceed. If we were running corporations
around here we would be bankrupt by now. And that is not aimed
at you, Mr. Secretary. That is aimed inward.

I have a whole series of questions. I will not pursue this one any
more. I am frankly not satisfied. I do not think that there has been
an appropriate understanding of the relationship and the timing
and what comes first, but I will not pursue it because it is apparent
we are not going to get that kind of response.

I have a number of questions that deal not only with the second
repository postponement. They deal with the multiattribute utility
analysis that was carried on for the development of the first reposi-
tory sites, the question of geologic diversity, the question of costs,
the question of composite scores. These are questions which have
been asked before. They have been asked here and they have been
asked in the House of Representatives, and so far they have not
been adequately answered. Many of them have not been answered
at all.

And I will also ask that you respond directly to an internal docu-
ment of your own department, an internal document which lists
some rather substantial what they call serious shortcomings in the
final report that typified the first three sites. I think they are
damning in their description of that shortcoming, but I will not ask
any of those now. I will ask them for the record.

I would like to turn to something now if I can that I hope is a
little more positive. First, on the C&C agreements, I think it is safe
to say, and I would like your comments, that the State of Washing-
ton for the past four years has probably had more negotiations
with DOE and has moved more strongly and been willing to at-
tempt to get to a successful C&C agreement than any other State.
Is that accurate?

Secretary Herrington. That is accurate.

Senator Evans. With all of that I think there is some current
disappointment. I know because I have talked with the governor
recently. They have a chronology that goes clear back to July of
1983, and there have been scores of actions and development work
along this line, and I believe we are at a point where the Governor
is going to tell you that he feels that at this point there is no real
hope of getting a C&C agreement unless there is some considerable
change in the way we do things.

He has made a suggestion which is somewhat different. I think it
is a good suggestion that calls for a process, a conflict resolution
process. As far as I know he has not even received an answer from
the Department commenting on that particular proposal.

Secretary Herrington. We are well aware of the proposal. Sena-
tor Evans, for the national forum to review the siting of

110

Senator Evans. That is correct.

Secretary Herrington. I have seen a draft of the answer and we
are ready to send the answer. I can comment on what my personal
view is as the manager of this program, and that is this. This is the
national forum. What bigger national forum can we have to review
our siting process and what we have done to interpret this law
than we have today? Putting the issue to an independent group or
a panel of experts to me does not make sense.

Senator Evans. You are dealing, I think, with the specifics of one
State and its relationships. I believe that it is a very strong move
toward the potential of a successful — moving toward a succesful
C&C agreement. This Senator, at least, is going to fight as hard as
I can to deny you the $79 million that has been set aside for this
fiscal year unless there is stronger action taken toward working
toward that agreament. I think the Governor's proposal may have
been such an opening, and I would hope that you would not reject
it.

Secretary Herrington. I will tell you right up front we want a
C&C agreement with the State of Washington and they will go
back and go the extra mile and we will redouble our efforts to
make it work with the State of Washington. You have to under-
stand, and I think you do, the political climate in the State of
Washington does not want a waste repository in the State of Wash-
ington, and we will do everything possible to keep it out of that
State.

Senator Evans. We are not unique.

Secretary Herrington. You are not unique. That is the nature of
the beast that we are dealing with.

Senator Evans. I have said it before and will say it again, that I
think the process ought to be carried on as explicitly and as
promptly as we can under the law. We ought to do this job as scien-
tifically as we can. We do need a long-term repository eventually. I
think we are backwards in the Act in terms of the order of things.
But if it ultimately comes down to the fact that a State of Wash-
ington site is the safest, the best, that it is adequate, that there are
no adverse environmental considerations, then we ought to be pre-
pared to accept it, and I for one would say so. But we have not pro-
ceeded with Step 1 in my view along that line, and we have gotten
badly off target.

Let me, if I can, Mr. Chairman, just ask a couple of questions
that I hope will be a little more positive, because they deal with
where do we go from here and what should we really be doing. It
seems to me four years after the passage of this Act there are sub-
stantially changed circumstances. You have recognized that in de-
laying the development of a second site. We have potentially less
waste. We have new technologies, at least modest new technologies
that are emerging.

First, section 222 of the Act requires DOE to accelerate research
and development and alternative means and technology for the dis-
posal of high level waste. This is funded from general appropriated
funds, not from the one mil per kilowatt-hour or fee that goes into
the nuclear waste fund.

Why do you feel that it is prudent at this point to terminate the
subseabed program, for instance?

Ill

Secretary Herrington. I would like Mr. Rusche to answer that. I
have looked at this carefully. I am not obviously a technical expert
on subseabed. I do know from talking to foreign countries and ex-
perts in the meetings that I have gone to that this is not a fruitful
direction to travel in and most countries are going to deep geologi-
cal storage.

Mr. Rusche, if you could comment on that.

Mr. Rusche. On the specific point, Senator, we did not request
additional funding beyond 1986 for the subseabed program because
we had reached an understanding and agreement internally that it
was appropriate to bring the program to the point of analysis and
convergence and evaluate it, and that is being done in 1987. We
found that our international partners in the United Kingdom had
taken the same course. When we get that analysis in hand we will
take a look and see whether the program ought to go forward.

We had a rather ambitious schedule to try and determine techni-
cal feasibility by 1991 and we concluded we needed to to stop in the
intermediate time period and take a look. We may decide that we
want to continue that program after we have the data in hand.

Senator Evans. In another sense research and development are
at least an alternative proposal. I had a chance to meet, as I am
sure you did, with the representatives of the Swedish nuclear waste
management system. I understand that their plan is to allow the
spent nuclear fuel to be stored on an interim basis for up to 40 to
50 years. In other words, they intend to go first to an MRS for an
extended period of time to allow a large portion of the heat to
decay and many of the short-lived radionuclides to dissipate.

Are you considering this type of storage as an alternative: a
longer interim storage period prior to permanent disposal which re-
duces very substantially at least the heat dissipation required after
you put it in long-term storage?

Secretary Herrington. If I could have Mr. Rusche answer that,
please.

Mr. Rusche. The specific criteria that the Swedes used over the
40 years or 50 years or so of cooling is a definite step in their se-
quence.

We elected, because of provisions in other statutes — in fact, we
were directed by such statutes — to be in a position to accept fuel
that was no younger than five years. That is, we have to design the
repository to have the capability to accept five to ten year old fuel.

The reality of the matter is that with the reactors operating, and
with the schedules that we have, the average age of fuel being em-
placed in the repository, beginning in the year 2003 under the pro-
posal that we have before you, would be between 20 and 30 years
old.

After about 20 to 25 or 30 years additional cooling of the fuel,
that is, decay before emplacement, it does not materially reduce
the heat load, which is the primary basis for setting the param-
eters for the repository

Senator Evans. You're talking about just the initial original
spent fuel rods — but there will obviously be continuing waste devel-
oped. And once of all of this process is in the system, it's a question
of how long and under what circumstances it should be

112

Mr. RuscHE. Under the provisions of the Act and the program,
even with two repositories receiving 6,000 tons per year, which
would be the expected rate, the mean age of fuel being emplaced in
the repository I think will exceed 20 years over the life of the pro-
gram.

Now, that's not a design basis. You design to be able to receive
fuel as young as five years, if we need to.

Senator Evans. Would you submit for the record just a simple
graph that shows the rate of heat decay versus time.

Mr. RuscHE. I would indeed; be glad to, sir.

[The information follows:]

113

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Senate Committee on Energy and

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Jan. 29, 1987

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114

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Senate Committee on Energy ana
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Jan. 29, 1987

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Figure 8. BVfR fuel assemblies decay heat curves.

(6)

115

Senator Evans. One other alternative, Mr. Secretary: Do you
think it is appropriate at this time to take a thorough look at the
act and its provisions in order to reexamine the whole question of
reprocessing and reuse of a certain share of the nuclear waste?

I understand fully the proliferation and other arguments that
were used a decade ago. Do those still hold? Or is this an appropri-
ate time to take another look?

Secretary Herrington. I think it is a commercial decision. I
don't think that's a waste decision. I think it's going to end up
being decided in the commercial arena.

Senator Evans. Could you describe any other alternatives that
you have been considering, or that have been suggested to you, in
terms of potential long-term waste disposal, either in location, in
type, or whatever. In other words, we're looking today for a perma-
nent repository, I think we ought to look as broadly as we can at
where we now stand and what we ought to be doing?

Secretary Herrington. Obviously, the letters and the mail would
fill this room. The comments, I think, we delivered to the Congress
file, I think 22 filing cabinets and we have probably another 122
that could come.

Everything from shooting it at the sun on a Saturn rocket;
dumping it down volcanoes; it just is an amazing plethora of sug-
gestions on what to do with this waste.

And I think we've looked at a lot of things and will continue to
look at a lot of things. I don't have any special concrete proposals
that I could say today that would tell you, in my best judgment,
that we can do a better job.

I think that deep geologic disposal makes a lot of sense. I think
the program is viable, and I would like to stand on this program.

Senator Evans. Have you had any volunteers from throughout
the world who would just as soon locate a site and manage it?

Secretary Herrington. I have hinted at some commercial inter-
ests this morning from people that are interested in what are the
possibilities of this, to foreign countries who said, we'll take your
waste. That puts us deep into the nonproliferation program

Senator Evans. I understand.

Secretary Herrington [continuing]. The United States exploiting
Third World countries. It looks like a dead end to me. And it has to
be something that Congress wrestles with; not the Department of
Energy.

Senator Evans. I thank you.

Thank you, Mr. Chairman.

The Chairman. Thank you, Senator Evans.

I believe Senator Adams was here first. Alphabetically, he's first,
so we will recognize Senator Adams and welcome him to the com-
mittee.

STATEMENT OF HON. BROCK ADAMS, A U.S. SENATOR FROM THE

STATE OF WASHINGTON

Senator Adams. Thank you, Mr. Chairman.

I wish to express my appreciation to you and the other members
of the committee for allowing me to be here this morning.

116

And I am very pleased to be here to symbolize the interest of the
State of Washington, which is very well represented by our senior
Senator from the State of Washington, Mr. Evans, who sits on this
committee; and we are grateful to have him there.

But Mr. Secretary, when I met with you in December and we
had a rather frank talk about this, I have to admit I was discour-
aged, because I didn't sense a lot of give on your part on the con-
cerns which I expressed.

And I wanted you to know that this comes not only from a refer-
endum in our State where over 80 percent of the people registered
their disapproval of the process or system that had been used, but
also that the consultation and cooperation system had broken down
and had not been used.

And Mr. Chairman, I would like to ask unanimous consent that I
might enter in the record at this point the schedule that was re-
ferred to by Senator Evans that came from the State of Washing-
ton of the chronology of attempting to get consultation and cooper-
ative agreements with the Department, and the fact of why they
haven't been done.

The Chairman. Without objection.

[The prepared statement and additional material submitted by
Senator Adams follow:]

117

OPENING REMARKS - SENATOR BROCK ADAMS
SENATE ENERGY AND NATURAL RESOURCES COMMITTEE
January 29, 1987

Mr. Chairman, members of this Committee: I very much
appreciate your willingness to allow me to be here today. As you
know, this Issue Is of particular Importance to my state. And
while our Interests are ably represented by my senior colleague
who has the prlvalage of serving with you, I hope that my
presence here can serve to symbolize -- both to you and to the
administration — the significance of this issue to the state of
Washington .

Mr. Secretary, after we met In December to discuss the
nuclear waste disposal Issue, I must confess that I was
discouraged. I didn't sense a whole lot of give on your part or
a willingness to listen to the concerns that I was expressing.

Make no mistake, Mr. Secretary, North, South, East and
West, we as a Nation must develop the means to permanently
dispose high-level nuclear waste. The people of Washington State
have lived with this hazard for more than 4 decades; longer than
anyone else. A solution must be found, but also make no mistake
Mr. Secretary your solutions will not do.

This fall a referendum appeared on the ballot In my
state which in essence was a vote of no confidence by the people
of Washinton State in the way you and your department have dealt

118

with them and with this program,
an 80% appr o> a 1 vote.

The referendum was passed with

Let me begin my questions to you with one final thought.
The Nuclear Waste Policy Act, if nothing else, established for
the first time in statutue what the ground rules were going to be
for the Federal Government in carrying out this program. It was
supposed to put an end to the ever changing, ad hoc, and
chronically suspicious way in which the Department conducted this
program. If I understand what is in your proposed Mission Plan,
which Mr. Rusche presented here yesterday and what you have
confirmed here this morning, we are once again being plunged into
entirely ad hoc nuclear waste policy, outside of the 1982
Nuclear Waste Policy Act.

119

STATE OF WASHINGTON

Report to Congress

Concerning Consultation and Cooperation Negotiations with the

U.S. Department of Energy

January 1987

The state of Washington report to Congress Concerning Consultation and Cooperation
Negotiations with the U.S. Department of Energy (USDOE) will review past actions, assess
the current situation, and summarize the reasons why agreements have not been
concluded.

PAST ACTIONS: From July 1983 until December 1984, the state of Washington and
USDOE made a good faith effort to negotiate. In spite of many long negotiating sessions,
the parties were unable to resolve many serious issues such as federal liability, defense
waste, water rights, foreign waste, transportation, work suspension, emergency response
planning and other issues. The state became convinced that the C&C process was not
effective when two Section 117(b) Governor's letters obtained positive results in the areas
of defense waste and water rights, even though the subjects had been subjects of intense
negotiations for eighteen months.

From December 1984 until May 1986, the state of Washington and USDOE were heavily
involved int he Environmental Assessment process. Governor Gardner asked that USDOE
do a credible comparative analysis with input from states, tribes and independent experts.
The May 28 decision to include Hanford as one of the three sites selected for
characterization even though it ranked lowest of all sites under consideration, and the
illegal decision to indefinitely postpone the search for a second repository led litigation
and the overwhelming ratification of Referendum 40 which directs state officials to
continue challenges to the federal site selection process.

CURRENT SITUATION: The site selection process to date was a flawed, politically-based
program that has destroyed USDOE credibility. Past actions and continuing litigation
have created a situation where C&C negotiations at this time, are not a reasonable option.

WHY AGREEMENTS HAVE NOT BEEN CONCLUDED: Agreements have not been
concluded because past negotiations were not effective and because the May 28th
decisions have destroyed USDOE's credibility. C&C negotiations cannot be successful
until credibility is restored. USDOE must take the lead in bring the program back on
track. Governor Gardner's conflict resolution process is a reasonable, attainable proposal
which could lead to a mid-course correction consistent with the Nuclear Waste Policy Act.

120

STATE OF WASHINGTON
Consultation and Cooperation (C&C) Clironology

July 1983: Negotiations began because construction of the exploratory shaft appeared
imminent. From July 1983 to July 1984 there were twelve negotiating sessions with
USDOE and twenty-one state negotiating team meetings.

December 1983: An early draft document was prepared and forwarded to the Nuclear
Waste Board and the Legislature for review and comment. The Legislature passed
Concurrent Resolution 142 which directed the negotiating team to place more emphasis on
issues relating to foreign waste, work suspension, injunctive relief, federal liability, com-
mingling defense wastes, emergency response planning. The Legislature passed a bill
which provides specific procedures for negotiating, reviewing, approving and modifying
agreements.

July 1984: Another preliminary draft document was forwarded to the Nuclear Waste
Board. The Board considered using the document for public hearings, but many unre-
solved issues and the December 1984 release of draft Environmental Assessments put an
indefinite hold on further review.

March 1985: Governor Gardner wrote Section 117 30-day letters to Secretary Herrington
concerning defense waste and state water right laws and permit requirements for site
characterization activities. Although the C&C teams had been unable to resolve these
issues after nearly two years of negotiations, the Secretary's responses to Governor
Gardner documented significant changes to earlier USDOE negotiating positions.

May 1986: USDOE announced its decision to include Hanford as one of three sites
selected for characterization even though USDOE scientists and their consultants had
ranked Hanford lowest of all sites considered for pre-closure factors, for post-closure
factors, and composite overall ranking.

July 1986: Detloff von Winterfeldt, a nationally respected decision analyst who had been
a consultant to the National Academy of Sciences (NAS) Board on Radioactive Waste
Management, expressed serious concerns about the value judgments used by USDOE to
make its decisions.

121

August 1986: Lee Olson, Richland Operations Office, wrote to Terry Husseman, Program
Director, asked for a joint C&C meeting with other states and the tribes. Mr. Husseman's
response questioned the need for joint meetings and suggested USDOE decision making be
the first issue to be discussed.

October 1986: Congressional subcommittees reported conclusive evidence which lead to
the conclusion that USDOE distorted and disregarded its own scientific analysis in order
to support selection of Hanford.

November 1986: Ralph L. Keeney, a nationally respected decision analyst who had been a
USDOE consultant during EA negotiations, issued a report which confirmed that Hanford
is the least desirable site because of its enormously greater costs and its greater health
effects are not compensated for its relatively slight advantage in environmental and
socioeconomic impacts.

November 1986: Washington State citizens, in unprecedented numbers, support Referen-
dum 40, which directs state officials to continue challenges to the site selection process.

December 1986: Eco Northwest, a consultant to the Nuclear Waste Board, concluded that
the Recommendation Report fails to document its assumptions or its conclusions, and is a
travesty of nearly everything that decision-aiding methods stands for.

December 1986: USDOE, in a letter to Governor Gardner, renewed the offer to negotiate.
Governor Gardner and Ben Rusche met on December 18 to discuss C&C negotiations. In a
December 30 response to the Office, Governor Gardner indicated that past actions and
continuing litigation have created a situation where C&C negotiations, at this time, are
not a reasonable option. He pointed out that negotiations cannot be successful until pro-
gram credibility is restored, and that USDOE must take the lead in bringing the program
back on track. He enclosed his proposal for a conflict resolution process which could
restore credibility to the program. He asked Secretary Herrington to review and seriously
consider the proposal.

122

Senator Adams. Thank you, Mr. Chairman.

Mr. Secretary, I don't want to repeat questions of the Senator
from New Mexico, and the Senator from Louisiana, the Chairman
of this committee.

I want to be very clear that we had, prior to 1982, an ad hoc
system for taking care of nuclear waste. And as the Chairman so
well stated, and other members of this committee who worked on
this matter, as well as the statements of Members of the House
who worked on this problem with this Senate committee, a decision
was made to take that out of the hands of the ad hoc Department
of Transportation system and create a very strict legislative
system.

Now you have violated that legislative system, have you not?

Secretary Herrington. My answer is, no.

Senator Adams. All right. Now let me refer, then, to section 112
of the Act, which says: Not later than 180 days after the enactment
of this Act, the Secretary, following consultations — it lists the
groups — shall issue general guidelines for recommendation of sites.

That was not carried out, was it?

Secretary Herrington. That's correct.

Senator Adams. All right, 112, section (b), subsequent to such
nominations, the Secretary shall recommend to the President three
of the nominated sites not later than January 1, 1985, for charac-
terization.

That was not met, was it?

Secretary Herrington. That's correct.

Senator Adams. Section (c): Not later than July 1, 1989, the Sec-
retary shall nominate the sites that shall include at least three ad-
ditional sites not nominated under paragraph A and recommended
by such date to the President from five nominated sites three can-
didates the Secretary determines suitable for site characterization
for the selection of the second repository.

That, you have stated in your mission statement, will not be
done; is that not correct?

Secretary Herrington. That's correct.

Senator Adams. And you have stated in your mission statement
also that the final date which is set forth later in the statute will
not be met?

Secretary Herrington. That's correct.

Senator Adams. So we have a record here that the entire statuto-
ry framework, which involved a very difficult act by the Congress,
and compromise by the Congress, has been violated by the Depart-
ment in all major aspects, and now we are being asked what to do
by you on a mission statement which confirms that we're right
back to an ad hoc system of the Department of Energy running
this, which was supposed to be corrected by a specific statute
passed by the Congress.

Secretary Herrington. Senator Adams, like all legal construc-
tions and lawyers talking, you are technically correct. There are
hundreds of people working in this program who have put their
best efforts at it.

Myself, I came on this job February, two years ago. This program
was behind schedule when I took over.

123

I didn't do it, and I didn't cause it to be late, and I don't think
Mr. Rusche caused it to be late.

When the law was passed, the opposition of the States and the
political part of this issue I don't think were anticipated. The ef-
forts at trying to bring local involvement, I don't think those were
anticipated.

What you have is a series of efforts to meet the requirements of
this law that were brought forward on a Mission Plan in 1985, and,
many of these dates, have slipped.

From my own standpoint as the Secretary of Energy, I certainly
didn't ask to have the President make this decision in May before a
national election. I'd much rather have it done in January.

Nothing has been violated. Violated carries a connotation of in-
tentional, political — what we're telling you here is

Senator Adams. Mr. Herrington, I'm trying to leave the politics
aside for the moment. I think Senator Domenici has commented on
them and so on. And the politics are over — we have an overriding
national concern to have a system, and that a Congressional
system which was set up, worked very hard in the whole Congress,
has been broken. It's like a tricycle. You have in that tricycle, two
repositories and an MRS, and you come before us and say it's
broken.

There's only one wheel left, and that wheel is bent because it's
out of date. In other words, there's no MRS; there's no second re-
pository. And so you are stating, we've got a unicycle.

And this Senator, and the people that we have are concerned
that nobody's going to bring the other parts back, and this is going
to have to happen over a long period of time.

So what we're trying to ask at this point is, are you prepared to
bring to the Committee and to the Congress as a whole amend-
ments to the Nuclear Waste Policy Act that creates a new system
that works.

Secretary Herrington. The answer to the first part, on the MRS
and the two repositories, this was fully discussed at Mr. Rusche's
confirmation hearing. I read the transcript on the slipped dates,
how the program is coming.

It's not as if it is being sprung on you at this point, number one.

Number two, this first repository is a viable program. You will
get a first repository, unless Congress tells us not to. And you will
get a second repository if it's needed, the way we're proceeding
today.

Senator Adams. But that isn't what the Congress did, Mr. Secre-
tary, is it?

Secretary Herrington. I think it is. I think we're in compliance
on this.

Senator Adams. The Congress stated, there'd be repository one,
repository two, they'd overlap as they are proceeding forward. They
are the two wheels on the tricycle.

Secretary Herrington. Well, your tricycle analogy, I think, is
way off. Way off.

Senator Adams. Well, then, you tell me, because I'll comment in
a moment on your president of the board coming to a board of di-
rectors.

124

Because like my senior colleague from the State of Washington,
I've served on boards of directors too. And I can tell you what we
would have done with a president of a corporation that came in
after two years, submitted this, and said, I'm not going to follow
the instructions that you had, but I want to do some more. We'd
have fired him.

Secretary Herrington. Well, again, if I could correct you, I
didn't say I'm not going to do what you told me.

I said, here's what I think works under the Act, in order to get a
repository. And that's what Congress wants, is a repository.

This works. It's realistic. Please tell me, board of directors, give
me some guidance. Congressional input: Are we doing the right
thing? If not, tell us. We'll change.

Senator Adams. I think we have had several people tell you this
morning, at least from this Committee, that they would prefer you
follow the statute that started.

The question I asked you was, if you don't follow the statute, we
don't accept the fact of having the Department of Energy create a
new statute.

We want, and have asked you the question, are you prepared to
come up and say, these are the amendments we need to create a
new consensus in the country.

Because Mr. Secretary, I have sat in the position you're in. And
once you move beyond the statutory lines, and your consensus
begins to break down — and this is not a partisan comment; it is a
comment with a small "p" — what occurs is, it gets worse.

As one of my other colleagues said, it doesn't improve itself by
more and more explanations and more and more variations. You
may need another variation in this.

But you don't have a consensus beneath you for this statute that
you say you can't carry out. And you haven't given us amendments
for a new statute.

You have, in effect, given us what would be, in my time, a regu-
lation that says, we can't follow the statute so we're going to create
a new statute by regulation..

Every time that gets knocked out in the courts. And when that
gets knocked out, this whole program grinds to a halt, and all of
the work that everybody in this committee has worked on, they'd
have to scramble then to amend the act.

What they're really asking you is, shouldn't we be operating on
that now? Or isn't this whole program going to be pushed further
out into the future, because we have fatally flawed the statutory
process.

Secretary Herrington. If we were to open up the Nuclear Waste
Policy Act for debate again, and for amendments, to me, that
would be the end of the program.

Senator Adams. All right, then, you could have followed the act.

Secretary Herrington. The act is the act, and we will follow it,
and we will obey the law. I guarantee you that. This is our plan for
following the law.

Senator Adams. But it doesn't follow it. That's the point.

Secretary Herrington. I think it does.

125

Senator Adams. Well, I just read, and I'm not going to do it
again, but I read down the sections, and you hadn't met a single
one of them. So I don't know how you're going to follow the law.

Now, I would be very happy if you were to follow the law on
wherever you could from this point forward, including coming in
under Section 112 small b capital C, and by July 1, 1989, nominate
the three additional sites to the President for the selection of a
second repository. But you haven't said you're going to do that.

Secretary Herrington. Senator Adams, there has to be some re-
alism here. Senator Evans says we need more cooperation with the
State of Washington. We need more time. You're not dealing well.

And we say, we need an extra five years to carry out our rela-
tions with the State

Senator Adams. No, no, that's a later question. This one that I
asked you is, you have told us you're not going to come up with the
selection of the second repository, and that's a flat statutory re-
quirement in Section 112 small b capital C that it be done by July
1st, 1989; and that, carried out, would carry out your promise,
made to this Committee, made to the House committee, and made
on the floor.

And what I'm saying to you is, if I had the president of a board
who was saying he's not going to do what we've told him, hasn't in
the past, and is not going to next year, I'd fire him and get some-
body who did.

And that's my answer to your hypothetical.

Secretary Herrington. Well, that may be. What I need to say to
you is that you would also not be happy — and I was careful not to
use the word "president'. It was CEO.

Senator Adams. CEO. All right, the CEO.

Secretary Herrington. The chief operating officer of a program
as important as this who didn't come to you and say, look, there
may be some money waste. There may be some change in the
waste projections. I think you ought to look at this.

If this is not accepted or endorsed, or no action is taken on it —
let's say no action is taken on this plan, to say we're doing right —
and if the money is not appropriated to carry out this plan, we will
go back and we will identify your second repository by the time-
frames in this act.

Senator Adams. What do you mean, if there's no action taken?
You haven't got an amendment laid before the Congress, or any
congressional action that can correct that act.

But you have told us you're not going to put the second site up
on July 1, 1989, as it said in the statute.

Either you are or you aren't.

Secretary Herrington. This law also requires us to submit to
Congress a mission plan of what we're doing.

Senator Adams. We've got the mission plan.

Secretary Herrington. Here's the mission plan. I assume that
Congress put that in the act so they could tell us whether we were
going the right direction or the wrong direction, and I hope to get
your input on that.

Senator Adams. The Congress has stated — I thought I heard it
two, three, four times — please follow the statute. We had a lot of

77-10A 0-87

126

trouble passing this. The second repository was a key part of doing
that. So carry it out.

Now I picked this one, because it happens to be something that
has not happened yet. And you could come forth with that, because
it's 1989, but you say in your mission plan, you're not going to do
that, either.

So you would not only not

Senator Domenici. Would the Senator yield?

Senator Adams. Yes, I would be happy to yield.

Senator Domenici. Could I just make an observation?

Mr. Secretary, I really want to state in the record that I think
the missed deadlines in the first round were done in good faith,
and more or less the committees knew that was happening.

Senator Adams was not here, and I am not critical of his line of
questions. But Mr. Secretary, what you are now experiencing is
precisely what this Senator from New Mexico told you was going to
happen day after day if you expect to significantly change this stat-
ute, even though your intentions and your motives are marvelous.

This Senator wants the whole process — the Senator from Wash-
ington— of two sites, so we have an east and a west.

Now, my friend, you're going to go to the House, and there's a
whole bunch of them who are delighted that you are not going with
a second one, because it's in their area.

So they're going to be telling you, that's really good, and we
think you're okay. But somebody else is going to be doing the abso-
lute other. And then they're going to go back four years and say,
you really ought to be fired before you even got here. Because
you've only been here a couple of years.

So it isn't going to work this way, I don't think. And I hope
that's what's coming out of this meeting, that you've got to find
some way to get a consensus, because there's too diverse a view
around here for this to just work on your submitting some plan.
And I wish you the very best.

But I think this is precisely, in spades, what is going to happen
to you in the next couple months.

The Chairman. And if the Senator will further yield, I think
there is a fundamental difference between trying to meet a target
and failing, and saying, we're just not going to do that activity, at
least not for the foreseeable future, indefinitely.

We understand the dilemma you're in. We understand the diffi-
culties. And I praise you and I praise Ben Rusche for giving it your
very best. We understand that.

But the law, as all of us, I think, here on this Committee, under-
stand it, ought to be attempted to be abided by, including the dates.
And we know you're going to miss a lot of those dates.

But you need to try. And I know it means a beehive of opposition
when you have to go in and follow the law.

But as long as you're following the law, you've got something not
only to hide behind, but something to have a firm foundation on.
And the minute you say, well, we're going to slip here because it's
a good idea, then it really does become political. Not partisan polit-
ical, not bad political; but it becomes a political process rather than
a legal one. And this ought to be a legal process.

I thank the Senator for yielding.

127

Senator Adams. Thank you, Mr. Chairman. Thank you, Mr. Do-
menici.

I have just two further things to state on that, and then I will
yield, because I know other members wish to question.

One, I am concerned, Mr. Secretary, as a person in the United
States, and I know that the Chairman is, not just as a Senator,
that you continue on your present course and the courts will move
in, not just the Congress.

And if this whole process collapses at that point, then your whole
program will be junked, and we'll have to start over again anyway,
which is something that is going to cause an awful lot of hurt
around the country.

So it should not be ad hoc, and it should not come forward with
statements that indicate in the future you will violate the act even
more.

And I have one other thing that I would like to ask as a final
question. And that is, you stated that your department would — or
the people in your department would just as soon not have this
program.

Would your department and the administration support an
amendment that placed the nuclear waste program in another op-
erating agency? Absent that, a review board that gave instructions
to your operating people, so that somebody who felt they could do
the job would go out and do it.

Secretary Herrington. I think that my remark was a poor at-
tempt at being humorous.

You know, we looked before at placing this in an independent
agency under prior Secretaries. I think it's probably in the right
place, and you've got the right people running it.

Certainly, if we can be more responsive to the States, we need to
do that. And that's been one of the major criticisms that we've had.

But I think the vehicle is pretty good. You get a flavor for how
tough this is; I'm sure most of the people here today realize that.
But I think the program is organizationally pretty good.

Senator Adams. Thank you, Mr. Chairman.

The Chairman. Senator Sasser, thank you for your patience. You
are recognized.

STATEMENT OF HON. JAMES R. SASSER, A U.S. SENATOR FROM

THE STATE OF TENNESSEE

Senator Sasser. Thank you, Mr. Chairman.

And I want to thank you for the opportunity of appearing here
this morning, and thank the members of your committee for their
forebearance.

I want to begin, Mr. Chairman, by saying that I firmly believe
that my native State of Tennessee has been treated very shabbily
by the Department of Energy and by this administration.

We've heard an admonition from the Chairman this morning,
echoed by the ranking Member, that we should take politics out of
the selection of these repository sites.

I think it's meaningful that both the Chairman and the ranking
Member felt it was incumbent upon themselves to make that state-
ment, I suppose to try to clear the air here this morning.

128

But frankly, I think this whole process is shot through with poli-
tics. This administration is playing a political game with the per-
manent disposal of nuclear waste. They attempted to appeal to
their friends in the West in the last election.

They're here before us today to try to seek an additional five
years on a permanent repository. And I think by their actions they
have drained the Nuclear Waste Act of 1982 of its credibility.

Now, when the Congress passed the Waste Act of 1982, the intent
was clear: to provide for a permanent disposal of nuclear waste.

In my view, this administration and the Department of Energy
has mishandled and mismanaged their solemn duty that they were
charged to perform.

They are back before this committee today saying they want to
delay the permanent repository by at least five years. But they're
also saying, go ahead and give us the MRS just in case we can't get
the permanent disposal program off the ground.

Well, Mr. Chairman, I know what that means, and the people of
my state know what it means. It means that the character of the
MRS has changed before the first shovel of dirt is turned.

Now, let me ask you this, Mr. Secretary: What is the capacity of
the MRS to store nuclear waste; 14,000 tons, isn't it?

Secretary Herrington. 15,000 metric tons.

Senator Sasser. Yes, sir. And it's going to be designed in such a
way that it can be expanded to handle up to 70,000 tons, which is
the capacity that's being calculated for a permanent repository;
isn't that correct?

Secretary Herrington Yes.

Senator Sasser. Yes, sir. So that we see that the primary pur-
pose of the MRS is no longer just a packaging facility. It's going to
become under this administration to de factor nuclear waste dispos-
al site, and make no mistake about it, once that MRS is built, the
pressure is off for a permanent disposal program.

With waste piling up, and the government committed to taking
possession of the private utility's waste, I know what the response
is going to be.

The response is going to be, well, we've got an MRS in Oak
Ridge, Tennessee, deep in a heavily populated area, one of the most
beautiful areas of this country, adjacent to the most heavily trav-
elled area of the country, adjacent to the most popular state park
in the country, the Great Smokey Mountains National Park, vis-
ited by over 10 million Americans every year, we got this MRS in
place; let's go ahead and expand it and make it permanent, because
we don't have the wherewithal, the fortitude, to go forward as
we've been directed to by this act and put two additional perma-
nent repositories, one in the east and one in the west.

We've already abandoned the concept of a permanent repository
in the east; that was a political decision. There's an old saying, if
you can't get the east to agree and the west to agree, what do you
do? You put it in the middle.

And I think that's what's happening here with this MRS.

So I think, Mr. Chairman, and I think you and your committee
members have identified it here this morning, if we give them an
additional five years on a permanent repository, we'll be condemn-
ing, I think, the permanent disposal program to a decade or two of

129

complete inertia for decision. And we'll be giving this Secretary of
Energy the easy way out.

Now, let me just say something on behalf of the 4.2 million citi-
zens of this country that myself and my junior colleague, Senator
Gore, represent.

On their behalf, I thoroughly resent the arbitrary manner in
which this Department of Energy has gone about the attempt to
shove the MRS down the throat of the people of my state.

The State of Tennessee and its elected officials and those who
serve its people have expressed their convictions about the MRS
overwhelmingly. The state legislature passed a unanimous resolu-
tion against the proposal. The governor made it clear the state in-
tends to issue a resolution of disapproval.

The State Attorney General has filed suit against the MRS site,
and the location procedure that was used, and that is now tied up
in the Federal courts.

But I think it becomes increasingly clear the Department of
Energy intends, by sheer force, to attempt to force this MRS, which
will become a de facto permanent repository, down the throats of
the people of the State of Tennessee.

Now the Secretary indicated this morning that there had been
some failures in working with the states; they needed to do a better
job in dealing with the states.

But what the Department of Energy has done in my state is to
totally alienate its citizens. They have destroyed much of the good
will which has developed over the years between Tennesseans and
the nuclear power industry.

And I think those members of this audience who represent the
private nuclear power industry ought to take cognizance of that
fact.

Their efforts to inform the citizens of Tennessee — that is, DOE's
efforts — to advise and to counsel with them about this MRS, have
been so amateurish and so insignificant as to be almost laughable,
were it not such a critical matter.

So, Mr. Chairman, I think that unless this Department of Energy
is directed to go back to the drawing board and start this selection
process all over, and the monitored retrievable storage site, I'm not
going to have any option except to oppose it in every legal way pos-
sible.

My own view on the MRS is that it's not necessary for a viable
waste program. The General Accounting Office has done a study
which indicates that half the nation's utilities agree with that
statement.

I know that the Federal Government has got a contractual obli-
gation to begin taking the waste by 1998. But we don't need an
MRS to accomplish that commitment.

The Federal Government can take possession of the waste at the
reactor. And they can restack them there until the permanent re-
positories are completed and ready for fill.

But why can't they package the wastes at the reactor, rather
than shipping it to an MRS and then on to a final repository, as
we're told they're going to do.

130

I think the distinguished junior Senator's analogy of a tricycle is
very accurate. The tricycle has lost two wheels, and it's now a uni-
cycle, and it's going to stay a unicycle.

And that major unicycle wheel is going to be right in Oak Ridge,
Tennessee.

Now, I know that the Chairman and perhaps the majority of the
members of this committee, believe that an MRS Is necessary. I'm
going to do everything in my power to influence the Senate that
the Chairman and the Members of this committee are incorrect in
that respect.

But in the event that I should fail, I want to ask this Commit-
tee's help in returning some measure of equity to the MRS selec-
tion process.

I would recommend that the Committee consider directing that
the Department of Energy go back and start the selection process
for the MRS all over again. If we can consider delaying a perma-
nent repository for an additional five years, we can certainly delay
an MRS for a year or two.

Instead of the Federal Government going to Tennessee or any
other state and saying, you're going to be the site for the MRS,
why can't the Department of Energy go out and ask for bids? Issue
a request for proposals for the MRS? The Secretary himself, Mr.
Herrington, you indicated this morning, in your opening statement,
that this might be an attractive proposition, an attractive proposal.

And there could be states which would accept these permanent
repositories or even an MRS for the jobs that they create.

So I think we'd be better advised here to go back to the drawing
board. And if the MRS is such a good idea, if the country needs it,
then I would say this administration ought not to have any prob-
lem in selling that to one state.

If this administration has one strength, it is in the field of mar-
keting. They have marketed to this country some ideas that I
thought were absolutely unmarketable. And if they can do that, I
think they can certainly — certainly have the ability to market an
MRS and put it in a place where it ought to be, if one is needed,
and I doubt that very seriously.

So, Mr. Chairman, I would hope that today the Department of
Energy could go back and get to work and build a constituency for
an MRS or a permanent repository in any other state, if they be-
lieve that an MRS is necessary.

Let me ask you this, Mr. Secretary, you said in your opening
statement that you were of the opinion that it might be possible to
convince a state, based on the benefits that the repository or the
MRS would bring to their state, you might be able to persuade a
state to accept it willingly.

Wouldn't that be a better approach than going through this
period of fighting it out in the courts, fighting it out here in the
United States Senate and the House of Representatives, fighting it
out with governors and the state legislatures, generating all types
of ill will for the Department of Energy, the Federal Government,
the nuclear industry?

What's wrong with going back and trying to resell this idea?

131

Secretary Herrington I think going back is a mistake. Certainly
your suggestion is a better way to proceed; if you could do this on
an agreeable basis, it would be the right way to do it.

Nobody, I think, enjoys the process the way it is right now. But I
just don't see it

Senator Sasser. Well, why didn't we do it that way, Mr. Secre-
tary?

Secretary Herrington. I don't see it in the cards right now. The
act requires certain things, and we've come forward as best we can
under the act.

And I don't see the voluntary solution.

Senator Sasser. The act does not require an MRS; we're agreed
on that. What the act does require is that the Department of
Energy make a study, and then make a recommendation back to
the Congress of the United States.

You made a study. You came up with three sites all in one state.
All in mine and Senator Gore's state. And there was no effort to go
to other states and see if perhaps they might have an interest in
this matter, an interest in the MRS.

We have no interest in it. We don't want it. But you might be
able to sell it someplace else. Why wasn't that done?

Secretary Herrington. I think we did consider other States.

Senator Sasser. Well, the only three sites I ever heard men-
tioned were Oak Ridge, Tennessee; Hartsville, Tennessee; and
there's one other state, also another site in Oak Ridge, Tennessee.

Secretary Herrington. I think we had 11 sites. I'm not sure they
were all public.

Senator Sasser. Well, the only three you've recommended to this
Congress — you're recommending Oak Ridge, and the only three,
when you got down to the final round, the only three that were
there were three in the State of Tennessee. That's correct.

Mr. Rusche knows that's correct.

Secretary Herrington. Yes, that is correct.

Senator Sasser Why wasn't an effort made to try to sell the
MRS someplace else?

Mr. Rusche. Senator, in the site selection consideration, we did
consider 11 sites, in I believe five states. We selected the three, as
we have had the opportunity to discuss before, for a number of rea-
sons, which are very specifically pointed out in the siting study.

You have not seen that formally, because the proposal has not
been up here. You have not seen the proposal formally as a matter
of fact. But that siting study does indeed consider other states.

We did not attempt to conduct a marketing effort in any of the
states. And as you indicated, in Tennessee we might have been un-
successful.

Senator Sasser. Well, you might have been successful, also, Mr.
Rusche, if you approached it in a different way. But I think that
die is cast now. That genie is out of the bottle. We don't want the
MRS in the State of Tennessee.

And I think we're seeing here, Mr. Chairman, in the selection of
this MRS, the same type of political considerations that you cau-
tioned the Secretary against in your opening statement.

132

Three sites in the State of Tennessee. They were, in my judg-
ment, selected because that was a means of isolating the political
opposition.

If you've just got the sites in one state, then you've only got to
deal with the congressional delegation from that particular state.

I think that's the reason that there were three sites in the State
of Tennessee.

Well, Mr. Chairman, I've gone on here at great length, and
you've been kind enough or hospitable enough to allow me to
appear here this morning before your Committee. And I want to
express my appreciation to you for that.

The Chairman. Thank you. Senator Sasser. And I might add
that Mr. Rusche will testify, when?, on February the 5th.

I'd like to invite you back at that time, and I think he will be
able to go into more detail on how the sites were selected and how
they were selected.

And I think the committee is going to be very interested in that,
and I know you will be as well.

Finally, Mr. Secretary, I know you're going to have to leave soon,
but we have one further Senator whom we welcome to the commit-
tee and also want to invite back for further meetings on this sub-
ject. Senator Gore from Tennessee.

STATEMENT OF HON. ALBERT GORE, JR., A U.S. SENATOR FROM

THE STATE OF TENNESSEE

Senator Gore. Mr. Chairman, thank you very much for your ex-
treme courtesy in affording Senator Sasser and Senator Adams and
I the opportunity to participate so full}' in your proceedings today.

I will keep my comments and questions to a minimum because
my senior colleague from Tennessee has done a very able job of ar-
ticulating the concerns felt by citizens of our state, and has
touched upon most of the important questions which I feel remain
inadequately answered.

But I would like to make a few points with your permission.

First of all, I understand that others during the proceeding today
have made the point, Mr. Secretary, that you have acted illegally
in eliminating consideration of a second repository, and in delaying
the timetable for five years.

Is it your position that you're above the law?

Secretary Herrington. That is absolutely ridiculous. I'm a
lawyer. I practiced 30 years. We are subject to the law and Con-
gress, and that is not a serious question.

Senator Gore. Well, with all due respect, there were lawyers in-
volved in this administration in the decision to sell weapons to ter-
rorists. They knew that was against the law, but they decided they
were above the law.

Secretary Herrington. Well, that's not a

Senator Gore. There were lawyers involved in the decision to il-
legally divert the profits to the contras. They knew that was
against the law, but they did it anyway.

I think you know it's against the law for you to unilaterally
ignore the mandate to go forward with the permanent repositories.

133

It's against the law for you to unilaterally remove consideration
of an eastern repository. And I think you just decided that your
own personal views, and the views of the bureaucrats in your de-
partment are more important than the laws duly passed by this
Congress representing the American people and signed by the
President, enacted under the authority of the Constitution.

You're putting your own personal views in a place that's more
important than due process.

Secretary Herrington. Senator Gore, that's insulting. It has no
place in this hearing.

Senator Gore. Why have you violated the law?

Secretary Herrington. I have not violated the law.

Senator Gore. How do you explain your actions, then? The law
seems pretty clear.

Let me phrase it another way. Where do you believe that you get
the legal authority to unilaterally eliminate consideration of a
second repository, and unilaterally extend the deadline by five
years?

Tell me the legal source of that authority.

Secretary Herrington. You weren't here during the prior hear-
ing, but there was a discussion of this all along, how deadlines
have slipped, how it was brought up

Senator Gore. I don't want to hear about deadlines slipping. I
want to know, where is the legal authority? Tell me.

Secretary Herrington. For what?

Senator Gore. For you taking the unilateral actions you've
taken.

Let's deal first with elimination of consideration of a second re-
pository. What is your legal authority?

Secretary Herrington. That is patently wrong. On page 11 of
this draft, it says we are committed to a second repository.

You've used the words cancel, elimination; those simply are not
factually correct.

Senator Gore. Are you searching for an eastern repository right
now?

Secretary Herrington. We are using non-site-specific work on
an eastern repository. It has not been cancelled. I said we would
like to delay the decision to the mid-1990s.

Senator Gore. Where is your legal authority for delaying the de-
cision until the mid-1990s?

Secretary Herrington. We have said in our draft Mission Plan
amendment this is the proper course of action, and we are asking
input from Congress to tell us that this is the right way to proceed.

If you don't tell us this is the right way to proceed, there has
been no prejudice to this program, and we can go and get the
second repository.

Senator Gore. So you're citing your mission plan as the legal au-
thority?

Secretary Herrington. Yes, if you approve the draft Mission
Plan amendment, which it requires in the statute

Senator Gore. In other words, you can't do it unless we tell you
you can?

134

Secretary Herrington. If this draft Mission Plan amendment is
not approved by Congress, or if you don't appropriate the money
that implements this plan, we're not proceeding on it.

Senator Gore. Aren't you obligated by the President's oath of
office to faithfully execute the laws as passed by the Congress?

Secretary Herrington. Absolutely; and we are doing that.

Senator Gore. You're not faithfully executing the laws if you're
stopping all site-specific exploration for an eastern repository; it's
just that simple.

Secretary Herrington. Well, we disagree. And the lawyers have
looked at this. I mean, it's a legal question. And legal questions
have no answers. [Laughter.]

Senator Gore. You know, that's the kind of arrogant approach
that this administration has taken to a lot of questions, assuming
that legal questions don't have any answers.

You know, legal questions occasionally do have answers. The law
is clear in this respect, and you've decided to ignore it. And you're
trying to fuzz it over and pretend that you're following the law,
when actually you are not following the law.

Secretary Herrington. Senator Gore, first of all, I have worked
with you a lot, and I'm not an arrogant person. I'm attempting to
manage what I think is a very difficult law to bring a waste reposi-
tory to the country.

And we're using good efforts. And we have a lot of people, not
only in Oak Ridge, but in this Department that are working very
hard.

And Senator Sasser says we've acted illegally and everything
else.

Senator Gore. So has the Chairman, if I'm not mistaken.

Secretary Herrington. The intent is to follow the will of Con-
gress in this.

Senator Gore. I mean, the Chairman has also said that, if I'm
not mistaken.

Secretary Herrington. Well, the Sixth Circuit Court in your
state says we've done a good job. It's on appeal. This is a difficult
question.

Senator Gore. That's a different point. That's a completely dif-
ferent point, isn't it?

Secretary Herrington. Yes, it is.

Senator Gore. All right.

Secretary Herrington. But it involves the same question.

Senator Gore. Well, no, it doesn't, with all due respect. It in-
volves a completely different point.

Now, your mission statement, your mission plan, which you have
cited, says that an MRS facility added to a single repository system
does provide some of the benefits to be obtained by adding a second
repository at a very early date; correct?

Secretary Herrington. Correct.

Senator Gore. Were the benefits of the MRS originally calculat-
ed on the assumption that there would be two permanent repositor-
ies?

Secretary Herrington. Yes.

Senator Gore. So some of the benefits asserted for the MRS
would be lost if there was not a second permanent repository; cor-

135

rect? You say some of them would be retained if there's only one
permanent repository. Would some of them be lost?

Mr. RuscHE. Senator, I believe the point you're referring to is
the operation of an additional facility, whether MRS or second re-
pository, early, has certain benefits.

And for that reason, it does not matter which one we're talking
about. To that extent, either serves the purpose, and that's the
intent of that statement.

Senator Gore. Now, you are saying that Tennesseans should not
feel concerned about the possibility that the MRS would become a
de facto permanent site because you're proposing that the Congress
enact a legal linkage between the licensing of the MRS and the site
selection for the permanent repository; correct?

Secretary Herrington. Yes.

Senator Gore. Now, are you proposing a linkage between the
construction of an MRS and the siting of a permanent repository?
Or the licensing of an MRS?

Mr. Rusche. I think we would propose in the formal version, if
we ever get it to you, that an MRS may not operate until we have
a construction authorization for a first repository, or a repository
from the NRC.

That's what we would propose.

Senator Gore. All right, now, so if your plan was adopted, we
would spend all this money to create an MRS. We would prepare
the site, put the structures up, put everything in place, get the
transportation network all ready to operate, load the waste on the
trucks, get them right up to the gate of the MRS, and then say,
wait a minute. They can't go inside the gate until there's authori-
zation for a permanent repository.

Meanwhile, if you come in with another unilateral five-year ex-
tension on the permanent repository, if the political opposition in
those permanent repository states makes it difficult for you to
carry through that plan, what position are we in then?

Here's a row of trucks filled with waste. The horns are honking,
Mr. Secretary. Let us in! Let us in! Horns are honking. Every-
thing's ready. They've got the key in the gate, ready to open the
gate. And the utilities are loading more trucks. And they're back-
ing up on the highway.

And you're telling them, wait a minute. There's a legal linkage
between the — but they're saying, Washington and Texas and
Nevada, they're climbing the walls out there. We're not getting
any closer to a permanent repository.

You're telling me that under those circumstances we're supposed
to have any confidence at all in this administration and the fact
that it would not come to the Congress and say, let us turn that
key. Let's go ahead and let them in.

You know, that's exactly what would happen, isn't it? Realistical-
ly speaking?

Mr. Rusche. Senator, I don't believe we would be quite that
short-sighted with respect to loading the trucks. [Laughter.] I think
the Senator will recall that I have the opportunity, as does the Sec-
retary, to visit with you several times a year for the benefit of
guidance in the program.

136

And I would presume that if the sort of hypothetical situation
you suggest wasn't pending, that you and other Members of the
Congress would provide appropriate guidance in the intervening
ten years between now and then.

Senator Gore. Oh, you'd get guidance from two out of 100 Sena-
tors, I guarantee you. And we'd have some others who agreed with
us.

But two out of 100 Senators, under those circumstances, with the
facility all built, ready to get the waste, waste ready to come, you
know, that's not a realistic pledge.

Let me say this. I know that you have to leave, Mr. Secretary,
and the Chairman properly wants to be courteous in meeting your
timetable.

I also want to help him in that regard. I'd like just to conclude
very briefly by saying that I do believe that you have acted beyond
the law. I do believe you've made a terrible mistake.

And you are going to have one whale of a fight on your hands. In
fact, a lot of other states may not feel the way Tennessee does. But
we're going to marshall all the resources we can, and we're going
to fight you down to the very last.

And we're going to do our best to win. And the fact that, in my
opinion, you've broken the law, and in the process, effected the
analysis of an MRS in the first place, strengthens our hand.

So we're going to be doing our best to stop you at every point
along the way.

Thank you very much, Mr. Chairman, for your courtesy.

The Chairman. Thank you. Senator Gore.

Thank you, Mr. Secretary. I know you're bumping on the under-
side of your meeting at the White House. You've been very gener-
ous with your time.

We would like to have you back, and I know Mr. Rusche will be
back on February the 5th, and we'd like to invite back our friends
from Washington and Tennessee at that time so that they may
again participate.

Thank you very much.

[Whereupon, at 1:32 p.m., the hearing recessed, to reconvene
Wednesday, February 4, 1987.]

NUCLEAR WASTE PROGRAM

WEDNESDAY, FEBRUARY 4, 1987

U.S. Senate,
Committee on Energy and Natural Resources,

Washington, DC.

The committee met, pursuant to notice, at 9:35 a.m., in room SD-
366, Dirksen Senate Office Building, Hon. J. Bennett Johnston,
chairman, presiding.

OPENING STATEMENT OF HON. J. BENNETT JOHNSTON, A U.S.
SENATOR FROM THE STATE OF LOUISIANA

The Chairman. The hearing will come to order.

I want to welcome all of our guests here. Today the full commit-
tee is holding the second in a series of hearings on the implementa-
tion of the Nuclear Waste Policy Act of 1982 by the Department of
Energy.

At this hearing we will hear from the States and Indian Tribes
affected by the Department's selection of geologic repository sites
in Washington, Nevada, and Texas.

The purpose of this hearing is to offer these States and Tribes an
opportunity to make a record of their concerns with the Depart-
ment's implementation of this program. I would urge each witness
to be specific as to the problems that he or she believes exist.

We already know, and indeed we had a hearing here, about the
question of the failure to site a second repository in the Northeast.

I stated here at the hearing throughout the long, four-hour hear-
ing, that in my judgment that was illegal, improper, and violated
the law. I think every member of this Committee repeated the
same theme. So I would say to our witnesses, we need not be con-
vinced and repeat what we took about four hours to do. We are
still convinced that the Department should have, and under the
law must, site a second repository — we call it an Eastern reposi-
tory, although it is not so designated as I recall under the law — in
any event, a second repository. So we need not deal with that issue.

What we would like is testimony as to the following:

What is wrong with the technical process DOE has been follow-
ing in the program for siting the first repository?

Has DOE been ignoring requirements of the Act in its examina-
tion of the first round repository sites? Which specific requirements
have been ignored or poorly carried out?

Is the Act itself flawed in the way it sets out the first repository
program? If so, how specifically is it flawed?

Do the witnesses believe that there is scientific evidence about
these sites that DOE is ignoring? What evidence?

(137)

138

Are there conditions at any of these sites that make the site so
obviously unsuitable for nuclear waste disposal that DOE has no
business selecting the site for characterization? What are these
conditions?

Has the DOE failed to carry out its responsibility under the Act
to consult and cooperate with the States and the Tribes?

[The prepared statements of Senators Johnston, McClure, Hecht,
and Bentsen follow:]

139

^^TATFr'E^'T PF s:fmaT^p J. pE'i'TTT Jor^'^Tom

CHAIRMAhf, ToMMITTEE ON rfJEpGY ANP f'ATURAL RESOURCES

Hearing on Civilian Nuclear V'aste Management

f^EPRUARY ^4, ^987

Today the Full Committee is holping the second in a series of

HEARINGS ON THE IMPLEMENTATION OF THE ''UCLEAR WasTE ^OLICY Act OF

1982 3Y THE Department of Fmergy, At this hearing we will hear

FROM THE f^TATES AND IndIAN TRI'^E^; AFFi^Cftn CY THE ^^^ARTMEf'T ' S
SELECTION OF G-TOLOGIC REPOSITORY SITES IN WASHINGTON, '''fvADA ANP

Texas.

The PURPOSE of this hearing is to offer thhtSE states and

TRIBES AN OPPQi^TUNITY TO MAKt^ A RtCORr^ OF THEIR CONCERNS WITH THE

'Department's implementation of the 'program. I would urge each

WITNESS TO BE SPECIFIC AS TO THE PRO^^LtMS THAT HF OR SHE BELIEVES
EXIST,

We ALREADY KNOW - AND I TRUST T-IAT TH.£ ""fCRFTARV OF "^NERGY
ALSO KNOWS - THAT PFOI^LF ARE U^'HAPPV (-jITH THE DECISION TO
INDEFINITELV POSTPONE S ITE-SdEC I F ( C WOPK ON A SECOND REPOSITORY,
We ALREADY KNOW THAT SOME P£0°LE THINi^ THAT DECISION WAS ILLEGAL,

What we want in this hearing is to focus on the process for

SITING the FTRST REPOSITORY; THF TECHMICAL p'^OCESS AND THE
institutional PROCESS,

140

- 7 -

For example:

-- '''hat is wrong with the technical process ^Or HAS BEEN
FOLLOWING IN THE PROGRAM FOR SITING THE FIRST REPOSITORY?

-- Has '^^^. BERN IGNORING REQUIREMENTS OP THE ACT IN ITS
EXAMINATIO\i OF THE FIRST ROUND REPOSITORY SITES'' WhICH

specific reouirbments have been igmored or poorly caprrien
out''

-- Is THE Act itself flawed in the way it sets out the
i-fRsr f^:-:^osiTORY program'' If so HO'-., sPFCTFTCALLy, IS it

:-'_AWFD''

-- ^0 THE WITNPSSES BELIEVE THAT TH-RE IS SCIEMTI'^IC
EVinENCE APOIIT THESE SITES THAT ^'^'^ IS IGilORIhiG'' '''haT

i^vin;":--Jc,-:'^

-- Are there conniTiOf'S at a:iv of t^ese sites that make

THE SITE SO O'^VIOUSLY UNSUITARLF FOR NUCLEAR WASTE 'ViSPOSAL
that -^'' HAS "10 PUSI'i-^SS S.-lL^^CTING THE SIT'^ FOR
C.HA:^ACrER IZATION'' V'hAT are THESE CONDITIONS''

-- Has "^f^l FAILED TO CARRY OUT ITS RESPO^'S T p Ti. I TY UNDER
T^E Acr TO CONSUi-T AND COO°FPATF WITH THE "^TATES ANT^ TRIBES?

141

How

HAS ^nr FAILED in THIS RFSPHCt'? Is THE /^CT AT FAULT, I:
AT FAULT, OR IT IS SOME COMBIMATION OF BOTH.

Congress has some haro jupgements to make apout this program.

It WILL VERY much ASSIST US IF WE CAN HETERMIME WHERE THIS
PROGRAM IS FAILING. SoME SEEM TO PELTEVE THAT NO PROGRAM OF THIS
KIND COULD POSSIBLY SUCCEED. If THAT IS THE CASE, WE'NEED TO
KNOW IT,

^'UT I HAVE MAD THE IMPRESS lOlJ THAT THE ^TAT^S A-IP TRIRES

PRETTY MUCH ACCEPTED THE ^'uClEAR '''aSTE ^OLICY AcT OF 1°^^?. Tp

TMEY DO NOT ACC^Pf IT MOW, rus -S TH^ ^_ACF TO CORRECT THE
RECORD,

^M THE OTHER HAND, IF THE AcT IS GOOD LAW, RUT THE
IMPLEMErTATIOM OF THE AcT HAS P^EN FLAWED, WE MEED TO KNOW HOW TO
FIX UP THE IMPLEMENTATION. We WILL HAVE ReN RuSCHE, THE ^IRECTOR
OF TME PROGRAM, MEPF TOMORROW, Wp CAM TAKE J'^ :'0:r,rs A^OUT
IMPLEMENTATION WITH HIM THEN, AND, PELIEVE riE , WF WILL.

-■F A PROCESS LEADING TO ENV I PONMEf'TALLY ACCEPTAPLE DISPOSAL
OF NUCLEAR WASTE IS TO BE RE'STARTEO, WE f-EED VERY MUCH TO KNOW
PJ DETAIL WHAT TS WRONG WITH THE OME WE HAVE, '^UE WITNESSES
TODAY ARE THE PRIMARY CRTTICS. It IS UP TO THEM TO MAKE THEIR
CASE.

142

OPENPJG STAThjiElJi OF

SEIJATOR JAMES A- KcCLiIRE

FEBRUARY ^, 1987, HEARING Uti UuE'S IJUCLEAR WASTE PROGRAM

This is not the first TiME--tioR is n ey auy means the last
t1me--that this committee is presented with testimorjy by those
States and Indian tribes most closely affected by the programs

AND DECISIONS OF THE OFFICE OF ClVLIAfJ RADIOACTIVE WaSTE
[IaI-JAGEMENT within THE DEPARTMENT OF Ef;E = GY.

We've already had an opportunity to listen to the comments of
Secretary Herri ngton concerning the s ; gm FicAtJT chatjges that DOE
proposes to make to its Mission Plan, -nd we had the opportunity

AT that HEARHIG LAST \/EEK TO OFFER OUR CPINIONS, ADVICE, AND
criticisms with RESPECT TO THOSE CHANGE^- WE WILL HAVE THE
OPPORTUfJlTY TO FURTHER INTERROGATE flR- "USCHE WHEN HE APPEARS
BEFORE US TOMORROW.

But AS MANY OF YOU IN THE AUI) I E NC E " "A S WELL AS MANY OF US
HERE AT THE DIAS'-MAY EE ASKING, THE PE^TIIiEN'T QUESTIONS SEEM TO

BE, "What do we expect to get out of -l. of this?", "What will

CoiiGRESS ultimately DO AS A RESULT OF T-£SE HEARINGS?", AND

"Where no we go from here?".

I feel QUITE sure THAT NONE OF US YET HAVE THE ANS\/ERS TO
THESE QUESTIONS. iJOR DO I HAVE ANY ILL.SIO.'iS THAT THE ANSWERS
WILL COME EAS ILY.

But I CAN AT LEAST HOPE THAT THESE -E^^RnJGS WILL PROVIDE SOME
SUKSTAilTIVE FOOD FOR THOUGHT- I CAN hO = E THAT, RATHER THAN
DIGRESSING INTO SHOUTING MATCHES'OR DETERIORATING INTO
POLITICALLY MOTIVATED "MEDIA EVENTS", TrESE HEARINGS WILL PROVIDE
A FORUM FOR CONSTRUCTIVE CRITICISM, A'.O, MORE IMPORTANTLY,

143

2 -

MEANINGFUL PROPOSALS ON OUR BEST MEANS OF CIRCUMVENTING A
COMPLETE COLLAPSE OF ALL THE EFFORTS THAT HAVE GONE INTO THIS
PROGRAM SO FAR.

I REMAIN, AS ALWAYS. COMMITTED TO THE BELIEF THAT THIS
COUNTRY CAN AND WILL SAFELY DISPOSE OF , TS HIGH LEVEL NUCLEAR

WASTES. I AM STILL COfiVINCED THAT TH

E FOUNDATION LAID OUT IN THE

NUCLEAR Waste Policy Act of 1982 is the best means of attaining
THAT goal. But I am nevertheless OPEN to whatever suggestions

YOU MAY HAVE ON HOW TO REPAIR SOME OF THE DAMAGE WE HAVE
EXPERIENCED ALONG THE DIFFICULT ROAD FROM THE CREATION OF THE LAW
TO ilS ULTIMATE Af:D SUCCESSFUL 1 fl PL EM E MI AT 1 0 N .

144

STATEMENT OF SENATOR HECHT

Mr. Chairman, I would like to thank you for holding this hearing
today on the nation's high level nuclear waste disposal program.

I would like to welcome Nevada's former governor, Grant Sawyer,
who is here today to testify before the Committee. Grant is
Chairman of the Nevada Commission on Nuclear Projects, which is
charged with furthering Nevada's interests on the nuclear waste
issue.

Last week the Committee heard from Energy Secretary Herrington on
this issue, and tomorrow we will be once again be interacting with
the Department. A lot has happened in the last year, but very
little of it has been to Nevada's liking.

T do believe we can claim a victory in two areas, although there
is still much to be done. Last week the Energy Department finally
made it clear that they will obey the law and suDDort a second
repository. Now we have to convince the Department that they
should work on that repository according to the schedule reauired
by the law.

145

( name )
(date)
Page 2

secondly, and this is particularly significant from Nevada's
perspective, Energy Secretary Herrington sat in front of us last
week and agreed that I was right last year when I argued that we
need to investigate any technical relationship between the
necessary and continued nuclear testing at the Nevada Test Site,
and the location of a possible repository a mere fifteen miles
away. if the weapons tests are going to cause manmade earthquakes
around a waste repository, we better know about it before we build
the repository.

Finally, the Department has recognized that things aren't aoing
quite the way it planned, and so has recommended significant
chanqes in the schedule for its work.

I am pleased to have played a part in encouraging the Energy
Department to face the reality of the situation the entire nation
is facing on the nuclear waste issue. I hope, Mr. Chairman, that
under your leadership this Committee will be able to find a way to
straighten out what so far looks like an unsuccessful program.

146

STATEMEHT OF THE HONORABLE LLOYD BENTSEN

BEFORE THE COMMITTEE ON ENERGY AND NATURAL RESOURCES
OF THE UNITED STATES SENATE

RESRECTING THE DEPARTMENT OF ENERGY'S IMPLEMENTATION
OF THE NUCLEAR WASTE POLICY ACT

February it, 1987
MR. Chairman and members cf the Committee;

I A^, PLEASED to HAVE THIS OPPORTUNITY TO APPEAR

THE DEPARTMENT OF ENERGY HAS UNDERTAKEN TO IMPLEMENT
IMPORTANT PROVISIONS OF THE NUCLEAR WASTE POLICY ACT. AS Y
KNOW. MR. CHAIRMAN. I HAVE WRITTEN YOU A LETTER IN YOUR
CAPACITY AS CHAIRMAN OF THE SUBCOMMITTEE ON ENERGY AND WATER
DEVELOPMENT OF THE COMM.TTEE ON APPROPRIATIONS URGING THE
SUBCOMMI TTEE NOT TO APPROVE AN A00ITI0NALS79 MILLION IN

FUNDING FOR THE DEPARTMENT OF ENERGY'S CIVILIAN RADIOACTIVE

1 ,111 : R= HAPPY TO MAKE COPIES OF
WASTE MANAGEMENT PROGRAM. 1 WILL Be HAPPY

^,.r K.c^.---•; Cf THIS Committee.

THAT LETTER AVAILABLE TO THE MEf.o... OF

147

Page two

I WOULD LIKE TO MAKE IT CLEAR AT THE OUTSET THAT MY
OBJECTION TO THE WAY IN WHICH DOE HAS MANAGED THE NUCLEAR
WASTE PROGRAM IS NOT INTENDED TO BE OBSTRUCTIONIST; IT DOES
NOT PERTAIN TO POLITICAL JOCKEYING ON MY PART TO AVOID TEXAS
BEING SELECTED AS THE SITE FOR A NUCLEAR WASTE DUMP. RATHER,

Mr. Chairman, 1 object to the way DOE has proceeded .on this
ISSUE out of an abiding respect for the carefully crafted
provisions in the Nuclear Waste Policy Act which you, f^p.
Chairman, and several members of this Committee, worked hard
to get enacted some years ago. That is to say, Mr. Chairman,

THE way I SEE IT, DOE HAS SO POLITICIZED THIS ISSUE AND
ALIENATED SO MANY OF THE PARTIES THAT ARE ESSENTIAL TO THE
EFFECTIVE IMPLEMENTATION OF THE CIVILIAN NUCLEAR WASTE
PROGRAM THAT 1 HAVE SERIOUS DOUBTS WHETHER IT CONTINUES TO
ENJOY THE CONFIDENCE OF THE CONGRESS IN THE WAY IT IS
PROCEEDING. ALSO, AND PERHAPS THE MOST PRESSING CONCERN, I
AM OF THE VIEW THAT DOE IS DELIBERATELY IGNORING THE WILL OF

Congress in its implementation of the Act. In this regard, I

WOULD like to focus ON TWO ISSUES TODAY THAT DEMONSTRATE
DOE'S APPARENT INSOUCIANCE WITH RESPECT TO FOLLOWING THE
EXPRESS DICTATES OF THE NUCLEAR WASTE POLICY ACT : ( 1 ) DOE ' S
UNILATERAL, UNAUTHORIZED POSTPONEMENT OF THE SEARCH FOR A
SECOND REPOSITORY AND (2) ITS FAILURE TO CONSULT MORE CLOSELY
WITH THE AFFECTED STATES DURING SITE CHARACTERIZATION
ACTIV ITIES.

148

Page three

In its Draft Mission Plan sent to Congress and the

AFFECTED PARTIES LAST WEEK, DOE MEMORIALIZES ITS INTENT TO
DELAY THE SEARCH FOR A SITE FOR THE SECOND REPOSITORY. THE
SECRETARY ANNOUNCED DOE'S INTENTION ON THIS ISSUE LAST

May 28th. When the Secretary made this announcement last
May, I WAS stunned. The embalmment of this decision in the
DRAFT Mission Plan does not inspire confidence in DOE's

ability to run this important NATIONAL PROGRAM. THE REASONS
proffered by doe FOR delaying THE SEARCH FOR A SECOND SITE
ARE REALLY NOT REASONS AT ALL. WHAT THEY REPRESENT IS A
POST-HOC RATIONALIZATION FOR DISREGARDING THE LAW. MOST OF
THE REASONS DO NOT CARRY MUCH WEIGHT. FOR EXAMPLE, DOE SAYS
THAT DELAY IS NECESSARY BECAUSE OF ITS PROGRESS IN SITING THE
FIRST REPOSITORY AND IS CONFIDENT IN THE SUITABILITY OF THE
SITES SELECTED FOR THE FIRST REPOSITORY. WELL, 1 AM VERY
HAPPY THAT DOE HAS REAFFIRMED ITS CONFIDENCE IN THE SITES IT
CHOSE; I, AS WELL AS THIS COMMITTEE, WOULD BE VERY CONCERNED
IF DOE ITSELF NOW DOUBTED THE WISDOM OF ITS SITE SELECTIONS.
BUT THIS IS NO REASON AT ALL TO STOP PROCEEDING ON A SECOND
SITE. ALL THIS INDICATES IS THAT DOE IS FULFILLING A PORTION
OF ITS RESPONSIBILITIES UNDER THE ACT.

149

Page four

doe also says that postponement is necessary

BECAUSE OF "PRUDENT FISCAL MANAGEMENT AND RESPONSIBILITY". I
HAVE TRIED TO UNDERSTAND THIS ONE, BUT ITS MEANING ESCAPES

ME. Does DOE mean to suggest that prudent fiscal management

IS hampered IF IT follows THE PROVISIONS OF THE LAW? |F SO,
I WOULD THINK THAT A BETTER COURSE FOR THE DEPARTMENT TO
FOLLOW IS TO PROPOSE LEGISLATION TO CONGRESS SPECIFICALLY
ASKING US TO REEVALUATE THE NEED FOR A SECOND SITE OR TO
REVISE THE STATUTORY SCHEDULE - A MEASURE I PROPOSED LAST
YEAR - NOT TO ABANDON THE SEARCH WITHOUT AN EFFORT TO COMPLY

WITH THE Act.

Finally, I note with interest and curiosity DOE's

ASSERTION THAT THE SEARCH FOR THE SECOND SITE SHOULD BE
POSTPONED BECAUSE "FORECASTS OF THE QUANTITIES AND RATES AT
WHICH SPENT FUEL WILL BE DISCHARGED FROM REACTORS" ARE
DECLINING. I SUBMIT THAT IN ENACTING THE ACT CONGRESS WAS
WELL AWARE OF THE FLUCTUATIONS IN FORECASTS THAT WOULD OCCUR
ON THE AMOUNT OF SPENT FUEL DISCHARGED FROM REACTORS. THIS
MATTER WAS FULLY CONSIDERED. ThE PROBABILITY THAT
FLUCTUATIONS WOULD OCCUR DID NOT PREVENT CONGRESS FROM
ENACTING THE REQUIREMENT THAT A SECOND SITE BE IDENTIFIED,
AND IT IS NOT A REASON TO ABANDON THE PROVISION IN THE ACT
REQUIRING DOE TO IDENTIFY THE SECOND SITE.

150

Page five

DOE'S FAILURE TO FOLLOW THE LAW ON THIS POINT IS
MADE ALL THE MORE TROUBLING IN LIGHT OF ITS RECOGNITION THAT
A SECOND REPOSITORY IS NEEDED. INDEED, THE SECRETARY HAS
TESTIFIED THAT "EVEN THE LOWEST CURRENT PROJECTIONS OF SPENT
FUEL GENERATION INDICATE THAT THE SECOND REPOSITORY WILL BE
NEEDED." IN LIGHT OF THE CLEAR ACKNOWLEDGEMENT BY DOE THAT A
SECOND REPOSITORY IS NEEDED - SOMETHING THAT CONGRESS WAS
NOT IN ANY DOUBT ABOUT, EVER - I SIMPLY DO NOT UNDERSTAND
WHY THE SEARCH HAS BEEN POSTPONED. AND I M I 6HT ADD THAT THIS
POSTPONEMENT IS FOR AN "INDEFINITE" PERIOD OF TIME WITH NO
INDICATION FROM DOE AS TO HOW LONG 1 T 1 S TO LAST. THIS
DECISION HAS NO BASIS IN LAW; IT IS TOO VAGUE; AND IT DOES
NOT PROVIDE SUFFICIENT CLARITY TO CONGRESS FOR IT TO CONTINUE
TO APPROVE FUNDING FOR THE NUCLEAR WASTE PROGRAM. THUS, I
SUBMIT, DOE MUST BE HELD ACCOUNTABLE FOR ITS ACTION.

On THE ISSUE OF CONSULTING WITH THE STATES, AT
LEAST INSOFAR AS TEXAS IS CONCERNED, DOE IS CLEAR AND
UNEQUIVOCAL THAT IT HAS HAD INSUFFICIENT CONTACT WITH TEXAS
OFFICIALS, THE DRAFT MISSION PLAN RECASTS THE RESPONSIBILITY
FOR CONSULTATION AND COOPERATION BY STATING SIMPLY THAT TEXAS
HAS NOT REQUESTED C & C NEGOTIATIONS. KR. CHAIRMAN, 1
RESPECTFULLY SUBMIT THAT DOE HAS GOT TO DO BETTER THAN THAT.

151

Page six

The civilian radioactive nuclear waste program is highly

CONTROVERSIAL AND ITS SAFE AND EFFECTIVE OPERATION IS LARGELY
IN THE HANDS OF DOE. To SAY THAT A STATE HAS NOT REQUESTED
NEGOTIATIONS MISCONCEIVES THE ROLE OF DOE IN EXECUTING THE

Act. In my judgment, and as the Conference Report

ACCOMPANYING THE APPROPRIATIONS MEASURE THAT FUNDED THE
NUCLEAR WASTE PROGRAM ACTIVITIES THIS FISCAL YEAR STATED, IN
TERMS TOO CLEAR TO MISUNDERSTAND, SIGNIFICANT PROGRESS IN
IMPLEMENTING THE ACT CANNOT BE MADE WITHOUT "CLOSE
CONSULTATION WITH THE AFFECTED PARTIES, IN PARTICULAR, THE
AFFECTED STATES."

1 UNDERSTAND FULLY THAT GIVEN THE NATURE OF THIS
PROGRAM IT IS NOT LIKELY THAT NEGOTIATIONS WILL BE EASY; THEY
MAY AT TIMES BE CONTENTIOUS AND FRUSTRATING. BUT
CONSULTATION MUST TAKE PLACE. IT CANNOT BE WISHED AWAY OR
PUT OFF UNTIL A STATE DECIDES TO CONTACT DOE AND SAY "LET'S
TALK." I BELIEVE, MR. CHAIRMAN, THAT THE STATES ARE
INTERESTED IN WORKING WITH DOE TO RESOLVE THE ISSUES. BUT,
AS IT STANDS, DOE HAS ALL THE INFORMATION IN ITS HANDS. iT
MUST THEREFORE BE FORTHCOMING ABOUT ITS INTENTIONS AND PLANS
WITH REGARD TO THE WASTE SITES.

152

Page seven

Mr. Chairman, my appearance here today underscores
my desire to see this vital national program carried out in
accordance with the congressional intent. up to now, doe has
not shown the proper solicitude for the will of congress. it
has instead, regrettably, chosen the strategy of divide and

•CONQUER. It SEEMS TO BE COUNTING ON OUR INABILITY TO COME TO
TERMS WITH THE FUNDAMENTAL CONFLICT THAT IS CREATED WHEN
SITES ARE CHOSEN, RATHER THAN TRYING TO RECONCILE ITS ACTIONS
WITH THE TERMS OF THE NUCLEAR WASTE POLICY ACT . THAT IS WHY
I BELIEVE DOE'S SUGGESTION THAT IT WAS PRESEN'ING ITS DRAFT

NissioN Plan to Congress so that Congress "n-a^:' provide any

STATUTORY DIRECTION IT BELIEVES IS NEEDED TO CONDUCT THE
PROGRAM" IS A HOLLOW ONE. CONGRESS HAS PROVIDED DOE WITH
CLEAR STATUTORY DIRECTION. THE NUCLEAR WASTE POLICY ACT IS
FULL OF DIRECTION; IT OFFERS GUIDELINES; IT ESTABLISHES
DEADLINES. IT IS JUST THAT DOE PREFERS NCT TO FOLLOW IT. I
SHOULD HOPE THAT THIS COMMITTEE WILL MAKE IT CLEAR TO DOE
THAT IT MUST FOLLOW THE LAW AND GET ON WITH THE BUSINESS OF
CHOOSING A SECOND SITE AND CONSULTING WITH THE STATES, i
CANNOT THINK OF ANY OTHER DIRECTION DOE NEEDS .

Mr. Chairman, members of the Commit'ee, I

APPRECIATE THE CHANCE TO EXPRESS MY VIEWS. YjU HAVE ALWAYS
BEEN WILLING TO HEAR ME OUT AND I THANK YCU FOR IT.

153

w J i^S'^r 1^^^- y^ I'^l^ ^ ^^^^"S g^o^P of witnesses today, and
we would like to lead off with the Honorable Grant Sawyer a
former Governor of Nevada. He also is Chairman of the Nevada
Commission on Nuclear Projects. i^t^vaua

We would like to bring up at the same time, Governor, with you

t^P Off^^ ^?u^ n^"' ^''^'^.°" ^f ^he Nuclear Waste ProgramsTn
the Office of the Governor of the State of Texas in Austin; and alsS
Mr. Curtis Eschels Special Assistant to the Governor of the State
of Washington, in Olympia, Washington

nor SawyTr.""' '^^^'^°'"^' ^"^ ^^ ^°^ld like to lead off with Gover-

Governor, glad to have you here.

STATEMENT OF GRANT SAWYER, CHAIRMAN, NEVADA COMMIS
SIGN ON NUCLEAR PROJECTS, ACCOMPAnJeD BY ROBERT R
PRO^ECt"'^''^^^^' ^^^^^ ^^ NEVADA AGENCY FOR NUCLEAR

Com'miftl!''''' > J^^^l^ ^i''^' ^'- Chairman and Members of the
Chk Hecht. P^^^^^^^^^ greetings to our own senior Senator,

nf^i!^%''r\^'' "'^' Mr. Chairman, is Bob Loux, who is Chairman
of the State Agency on Nuclear Waste in Nevada, as contrasted
with my position. I am the Chairman of a State NucLa? Commis

see'thf sLte^iV'^''^^'^'" Z'^''"^ ^^° y^^'' ^^« t« somewhat over-
see tne btate s concerns m this area.

We greatly appreciate your invitation to Governor Bryan to

appear to discuss Nevada's concerns regarding this high-level nu^

clear waste program. Unfortunately, Governo? Bryan hadTprLr

rt"p eTentstim ^"T ^' \"^ ^^".^^^^^ '^ ^°^' ^r. Chal^Tn

pr^seSThTLt^'vlTs.'""" '^^" ^"' '^ ^^^ ^^^^^^^^^ ^^^^ '

inlv^T.?''?''* ^^"^r""- ^ ^^ Chairman of the Commission, as you
indicated. I am a former Governor of Nevada. We commend vou

inlTisTu^tff ''"^ for the fact that you have called t^esehear-
hf statP nT/l^! appropriate at this time to in effect consider I think
tne state ot the nuclear repository program

Dro^TJm l^n^f^' ^^ JS^^^again report to you that the state of this
program so far as Nevada perspective is concerned is bad and an-
bad7h'.'f N ^^i^i-gr.?^- I" fact, the situation'n our view is s^o

longer tol^rlt^D^^^^^ ^'^''' ^^^ ^'^^'' ^^^"^ ^^^ ^«

gram ^^® °^^ ^ "^^^^ ^^ ^^^ view is mishandling of the pro-

cemedThif nOF^ their ratepayers, we believe, should be very con-
a Droi^nf fW T ^f'^^^l if.^asting millions of their dollars on
t\rNS's\'ucTeiV w^^^^^^^ ^^^^^^ '^ ^ '^'^ Pl-^ '^ d-P«- «f

me^dable^ioTfn^T'"^ ^^' ^? ^" ^^^2, we think it did a com-
N^tion's HiVh ? ' i^'.'Jf VP g statutory framework for siting the
iNation s High Level Waste Repositor es. In essence the Act was
designed to establish a reasonably balanced, fffr and techSLrnv
SuVh acfivTst^f that would assure credibility knd Icceptabm^
aS^es participation and oversight of Federal siting

154

Nevertheless, as Nevada's representatives and others have de-
scribed on a number of occasions to this Committee and other con-
gressional committees, DOE in our view has grossly mishandled
the implementation of the Act.

We have discussed in prior testimony how DOE has disregarded
the letter and spirit of the Act on many critical issues concerning
at least Nevada. We also have pointed out that DOE has failed to
allow meaningful State participation in many vital aspects of this
program.

When Nevada and other States and Tribes made such criticisms
in the past, Mr. Chairman, we found that many seemed unwilling
to acknowledge that the first round repository program was devel-
oping in what we thought was such a totally unfair and unaccept-
able manner. Perhaps some felt, and I can understand this, that we
were simply voicing objections because it was based on the "not in
my back yard" syndrome.

Well, Mr. Chairman, everyone is naturally concerned about their
backyard; but we have other overriding concerns with this pro-
gram, as well, which we think are our objective. Our objections are
based on serious and indeed fundamental procedural and technical
flaws that DOE has ingrained in this process.

It now appears that many in Congress and elsewhere are begin-
ning to understand that our complaints and outcries in the past
against DOE's actions do have a legitimate and a sound basis.
DOE's blatant political and illegal actions in disregarding the Act
and its cancellation~DOE I believe says deferral~of the second re-
pository program have finally pierced the consciousness and possi-
bly the conscience of many parties on this very critical issue, in-
cluding I believe many people in Congress.

Moreover, the joint investigation by two House Subcommittees
has already produced DOE decisional documents that demonstrate,
in our view, that DOE manipulated and politicized the first-round
selection process. Among other things, these documents indicate
that DOE manipulated the ranking of both Washington and
Nevada.

Under their siting program, there were no other choices except
Nevada and Washington. DOE's current posture that can in effect
change the laws simply by telling Congress that it is making
amendments to its mission plan should enlighten and I think shock
this Committee.

You now can see the type of cavalier and arrogant attitude and
approach that we have been experiencing with DOE from the
outset of this program. Mr. Chairman, we say that it is time to halt
this reckless DOE train and have a moratorium to get the train
back on the track that Congress intended when it passed the Act in
1982.

If this is not done, we have no doubt that DOE's misguided pro-
gram will crash, and that billions of utility ratepayers' dollars will
have been wasted without having solved this problem. We do not
think that such a moratorium is needed to enable this Committee,
and others, to examine fully how and why DOE's program has
gotten so far off the track.

We ask that you and other congressional policymakers now un-
dertake a thorough examination of this issue. We believe that

155

there IS no acceptable quick fix that can be made here. It is critical
"onL hL?''"'"'.'"^? understand that simply putting the second
xound back on track will not begin to solve the other overriding
problems in the program. ^

Even national screenings of first-round sites would not begin to
address the problems of the first-round program unless there is
careful scrutiny and redrafting of DOE s guidelines. Many of the
basic decisions that DOE has made with regard to the first deposi-
tory sites are so biased and deficient that key aspects of the pro-
gram are simply unacceptable to the affected States

I could spend a lot of time, Mr. Chairman, explaining to you in
detail the many fundamental flaws in DOE's program, as we view
It. We have already stated those before other Committees, and I do
not intend to reiterate that litany of grievances this morning

1 will refer you, however, by way of example to Nevada's state-
ment of position concerning shortcomings in the repository pro-
gram, which was attached to my remarks. While we would be
nappy to explain such various basic deficiencies again in DOE's
program many of which we have as I said discussed before the
Committee in the past, I would instead like to highlight one other
important concern that we have not yet had occasion to bring to
this Committee's attention. ^

Funding of State participation is all part of the coordination and

cooperation with the States and is a serious, ongoing problem for

ft^nd^'in^T^^fi ^T^^i ^'''' ^^^^h ^i^h DOE in this irea involved

orW If fS ^^T^? ^° P^^^^^"' independent testing and moni-

Mountain site ^^''^^^''''^''^'^ ^^^ seismic properties of the Yucca

DOE denied that funding. Nevada sued, and the U.S. Court of

be^r^'iqs^ 'n'^-^v,'^ ^ Circuit upheld the State's position in Decem-
ber 1985. Notwithstanding the court's order, DOE still refused to

th^t Yn^.'! M 'f'^' until after its May 28, 1986, announcement
tnat Yucca Mountain would be characterized

Mr. Chairman, DOE still refuses to evaluate and fund Nevada's

request in a timely manner, and DOE has not acted upon Nevada's

iscal year 1987 grant request even though the Department has had

not fplfnf vfTT^ •?'''■ f°".^^'- ^^^^ ^«^' the Department will
that request ^^^'^'°^^^ information, if any, it needs to evaluate

\J^l ^'^^^T ^^^7 ^''^''^ application includes not only the fund-
ing tor the technical research work which was the subject of the

r.n'nLVf '^^^'^•"' ^^^ ^^'° ^^^^^^^ ^^' preparation of a report and a
ZlT^ f^f.focjoeconomic impact assistance to which Nevada is ex-
pressly entitled pursuant to Section 116(c)(2) of the Act
funH^i^; f ^hg!^"^^^' the unconscionable delays in providing

cannot.?'/'''. ^^1^ Fu"^' ^' ^^ ^^ ^^^^^^^ untenable position, wf
cannot contract with the necessary scientific and engineering ex-
Act .W^.'^^'w" P^'P'^y ^^^^^" '^' ^^^^^ight function which the
constan? HpI.. TTu ^^^P^^^.^f. ^nd coordinate if there is this
the Acf whth^S^ c;f ?"• ^^ P^^^^fi^g finding for functions under
w u ^h^^h the State is expressly entitled to

r^Jlt ^^^ ^^i ^ continuing problem and still have a continuing
problem even though the Federal courts have stated otherwise. ThI

156

DOE still does not provide the funding for us to fulfill the function
S Congress env^isioned that we fulfill m this progran.

T would like Mr. Cha rman, in closing to call the Committee s at
. fTr^fnanP other disturbing development. We have raised many
tecCcal concerns wi^^^^^^^^^^^ to the adequacy of the Yucca Moun-
tain sSe MaSySf these same concerns, interestingly enough, were
raSed by the Nuclear Regulatory Commission's staff m response to
[he Department's 1984 Draft Environmental Assessment.

Onr concerns were largely disregarded by DOh. when it issuea
the Final Envirrmental Assessment. The Cornmittee should be
aware and I am sure it is, that the NRC staff has again raised
mTnv of these same technical concerns in its comments on the
S Environmental Assessment published in December of ^^^^^^^^

TV.O NRr has generally pointed out that the Department ib
ovlrly confident if Its technfcal assumptions that the Department
^Ineatedlv interprets its data in a manner consistent with accom-
pUshing its sTting goals. By this, I mean the DOE concludes what ,t
wants to conclude. ., ^- t.^. ocrciin V»p

Now had just Nevada raised these ^^^^TJ^'rI wfth thf Regu
ronsidered a matter of pure parochial interest But with the negu
atory Commission, that'ultimate licensing authority, h^^^^^^
generally the same concerns, we point out to the Comm ttee that
we consider them extremely legitimate going to the question ot
TechnS matters which the Chairman indicated earlier he would

like to have us comment on. MPr'c mmments

I am sure that you will see when you study the NRC s comments
the Commission is in effect pointing out that DUE s repository
search "am could very well produce an unacceptable site. The
NRC's major comments are attached to my remarks^

Mr Chairman, we believe there clearly is no need to allow ths
DOE iuggernaught to continue recklessly charging ahead until it
crashes We have time for a moratorium, we believe to stop the
Lain and to develop a concensus in some manner on how to oper-

^^^sffi^o'^'xample, we believe, take the time to ex -^^^
carefullv progress made in other countries using different tech-
S^u- Yo/wf/te disposal and waste --fg^ment J^^^^^^^ Ce
a Jo Dr Carl-Enik Nyquist, President of the bwedish State ^ower
Board testmed before this Committee regarding the Swedish nucle-
ar'cLmmtstrn program. Several differences between Sweden spro^
gram and the United States were notable, or at least were reportea

"rl^st'^pparently the Swedes already have a monitored r^^^^^^^^^^
storage program in place. Its water pools are intended to cool waste
o To' degfees before emplacement in the f^-J^te repository^
might point out that none of these three sites that DOE has select
ed is granite. And it gives Sweden another 30 to 40 years within
whirh to nrooerlv site and develop a repository.

Dr NyqS as I understand it, testified that water pool storage
of Vnent fuel could easily be extended for many, many years

sLond the Swedish "^program entitles local governments-they
have no States-to absolute vetoes of repository sitmg- ^ ^^^

Third, Dr. Nyquist stressed repeatedly that the success ot the
Swedish spent fuel repository program m promoting public accept

157

ance can be attributed to the identification of repository sites close
to nuclear activities. The Swedes have also chosen to assign the re-
pository mission to a utility collective — and I do not know whether
Congress has considered that possibility or not — with the govern-
ment participating, rather than the government operating the pro-
gram itself. I have no comment on the efficacy of that. This has left
the Swedish Government review agency, however, free to collec-
tively oversee and even disapprove the project, thus enhancing
public trust and confidence in the waste program.

I think even the Department of Energy acknowledges that the
U.S. program needs more time. In the Mission Plan amendments
that have just been put before you, DOE has proposed a five-year
extension for commencement of operations at the first repository,
and extension of the schedule for site characterization.

As I noted earlier, there appears to be in our view no quick fix to
bring DOE's program back on track. This will require a careful in-
vestigation and examination of the State's concerns and of DOE's
mistakes. Only after gaining a thorough understanding of these
problems can a concensus — and we believe that a concensus in this
situation is imperative — only with some time and with some collec-
tive judgments can such a concensus be built that will allow ac-
ceptable solutions to be developed.

This corrective process will require decisive action by Congress,
and I cannot tell you specifically what I believe that action should
be, but a firm Congressional hand to assure that DOE simply does
not ignore remedial efforts and continue to move unconcernedly
along what appears to be a preconceived path.

Mr. Chairman, we in Nevada are committed to working construc-
tively with the Congress and the other parties in any such re-exam-
ination of the process. However, we must insist, as I believe other
parties do, that the process and any solutions recommended be fair,
and that credibility be restored to this program.

It is clear, I believe, that as part of this process Congress must
revisit several fundamental questions. For example, if deep geologic
disposal really is the safest and best solution to the waste disposal
program, is it really? No other nation appears to regard it as such.
The MRS, which is an integral part of the disposal system envi-
sioned under the Act also needs to be re-examined.

We note the DOE's MRS proposal appears to be quite different
from the Act's original concept of a proposed alternative to deep
geologic disposal. There are many other issues that we think need
to be addressed. For example, is it not patently unfair for one seg-
ment of the Nation to be the primary user and beneficiary of nu-
clear power, and for a different segment to bear the risk and
stigma of its byproducts? That goes to the whole question of the
abandonment of the second repository site — at least that is part of
that equation.

Is DOE really the best entity to pursue the waste disposal mis-
sion, given the inherent conflicts of interest we think are in the
DOE with regard to its defense and commercial nuclear programs?

All of these are difficult issues, we know, and we understand and
appreciate certainly the job that you have. We think that it will
require some time for consideration and resolution of what appears
to be a program that is faulted and headed for possible disaster.

158

So we strongly urge, Mr. Chairman, that the Congress call for a
moratorium to tem.porarily halt the program that we think is out
of control, and probably headed for failure. Congress should then
undertake, we believe, the careful analysis that is required to de-
velop workable solutions to this difficult issue.

Thank you very much, Mr. Chairman.

[The prepared statement of Mr. Sawyer follows:]

159

TESTIMONY OF GRATfT SAWYER

CHAIRMAN

NEVADA CONMISSION ON NUCLEAR PROJECTS

Before

U.S. SENATE ENERGY COMMIHEE
February ^/ 1987

160

Chairman Johnston, and Members of this Committee, we Nevadans

APPRECIATE YOUR INVITATION TO GOVERNOR R I CHARD BRYAN TO APPEAR HERE

TO DISCUSS Nevada's concerns regarding the federal government's

HIGH-LEVEL NUCLEAR WASTE PROGRAM. UNFORTUNATELY, GOVERNOR BRYAN
had a PRIOR COMMITMENT THAT HAS PREVENTED HIM FROM BEING HERE/ BUT
HE HAS REQUESTED THAT 1 PRESENT THE STATE'S VIEWS. I AM GRANT

SAWYER/ Chairman of Nevada's Commission on Nuclear Projects.

FORMERLY/ I served AS GOVERNOR OF OUR STATE.

We commend YOU for calling THESE HEARINGS. IT IS QUITE

appropriate at this time to in effect consider the "state of the
Nuclear Repository Program." Regrettably, we must again report to

YOU THAT THF STATF OF THIS PROGRAM I <^ VFRY RAD AND APPFAR-^ TO RF
GFTTING FVFN WORSF. In FACT/ the situation is so BAD THAT NEVADA
AND OTHER AFFECTED STATES AND TRIBES REALLY CAN NO LONGER TOLERATE
DOE'S MISHANDLING OF THIS PROGRAM. ThE UTILITIES AND THEIR

ratepayers should be very concerned that doe is wasting millions of
their dollars on a program that will not result in a safe place to
dispose of the nation's nuclear waste.

When Congress passed the NWPA in 1982/ it did a commendable

JOB OF setting up A STATUTORY FRAMEWORK FOR SITING THE NATION'S
HIGH-LEVEL WASTE REPOSITORIES. IN ESSENCE/ THE ACT WAS DESIGNED TO
ESTABLISH A REGIONALLY BALANCED/ FAIR AND TECHNICALLY SOUND SITING
PROCESS THAT WOULD ASSURE fRFniRII I TY AND arrFPTARIl I TY THROUGH

ACTIVE State participation and oversight of federal siting

161

ACTIVITIES. Nevertheless, as Nevada's representatives and others

HAVE described ON A NUMBER OF OCCASIONS TO THIS COMMITTEE AND OTHER

Congressional Committees/ DOE has grossly mishandled the

IMPLEMENTATION OF THE ACT . WE HAVE DISCUSSED IN PRIOR TESTIMONY
HOW DOE HAS disregarded the letter and SPIRIT OF THE ACT ON MANY
CRITICAL ISSUES. WE ALSO HAVE POINTED OUT THAT DOE HAS FAILED TO
ALLOW MEANINGFUL STATE PARTICIPATION IN MANY VITAL ASPECTS OF THIS
PROGRAM.

When Nevada and other States and Tribes made such criticisms

IN the past, we FOUND THAT MANY SEEMED UNWILLING TO ACKNOWLEDGE
THAT THE FIRST ROUND REPOSITORY PROGRAM WAS DEVELOPING IN SUCH A
TOTALLY UNFAIR AND UNACCEPTABLE MANNER. PERHAPS/ SOME FELT THAT WE
WERE SIMPLY VOICING OBJECTIONS BASED ON THE "NOT IN MY BACKYARD"
SYNDROME. WELL/ Mr . CHAIRMAN/ EVERYONE IS NATURALLY CONCERNED
ABOUT THEIR BACKYARD/ BUT WE HAVE OTHER OVERRIDING CONCERNS WITH
THIS PROGRAM. OUR OBJECTIONS ARE BASED ON SERIOUS/ AND INDEED
FUNDAMENTAL/ PROCEDURAL AND TECHNICAL FLAWS THAT DOE HAS INGRAINED
IN THIS PROCESS.

It NOW APPEARS THAT MANY IN THE CONGRESS AND ELSEWHERE ARE
BEGINNING TO UNDERSTAND THAT OUR OUTCRIES AGAINST DOE'S ACTIONS
HAVE A LEGITIMATE AND SOUND BASIS. DOE'S BLATANT POLITICAL AND
ILLEGAL ACTIONS IN DISREGARDING THE ACT IN ITS CANCELLATION OF THE
SECOND REPOSITORY PROGRAM HAVE FINALLY PIERCED THE CONSC lOUSNESS-
AND WE HOPE THE CONSCIENCE - OF MANY PARTIES ON THIS CR I T I CAu

162

ISSUE. MnRPnvFR . THF .lOINT I N 7 F '^ T I GAT i on ry Twn Hnii<;c

c;iiRrnMMiTTFF'; ha<^ ai rfahy PRonnrFn DOF npr|.;inNAi nnriiMPNTc; tmat

nFMON'^TRATP HOF MANIPlllATFn ANH PnilTiri7Fn THF F I R <; T RnilNin

SFLFCTIQN PRQCEfiS, Among othfr thinp;'^. thf-;p nnriiMFNTs iMmr^jp

THAT nOF MANIPlllATFn THF RANKING OF ROTH WASHINGTON ANR MPWAHA

doe's current posture - that it can in effect change the law simply
by telling congress that it is making amendments to its mission
Plan - should enlighten and shock this Committee. You now can see

THE type of CAVALIER/ AND ARROGANT ATTITUDE AND APPROACH THAT WE
HAVE BEEN EXPERIENCING WITH DOE FROM THE OUTSET OF THIS PROGRAM.

Mr. Chairman, wf <^ay that it is timf to hai t thi9 rfpki p^q HOF

TRAIN AND HAVF A MORATORIUM TO GFT THF TRAIN RACK ON THF TRACK THAT
CONGRFSS INTFNnPn WHFN IT PASSFH THF ACT IN 198?. IF THIS I? NOT
nONF, WE HAVF NO DOURT THAT POP ' S MI^^GlllRFn PROGRAM WIN CRASH, ANH
THF RIMIONS OF UTIIITY RATPPAYPRS' nOII ARS Will HAVF RFPN WA-^TPD
WITHOUT HAVING SOI VFD THF NliriFAR WASTF PRQRIFM.

We THINK THAT SUCH A MORATORIUM IS NEEDED TO ENABLE THIS
COMMITTEE AND OTHERS TO EXAMINE FULLY HOW AND WHY DOE'S PROGRAM HAS
GOTTEN SO FAR OFF' TRACK. We ASK THAT YOU AND OTHER CONGRESSIONAL

policymakers now undertake a thorough examination of this issue.

There is no acceptable "quick fix" that can be made here. It
IS critical the Committee understand that simply putting the second

ROUND back on TRACK WILL NOT BEGIN TO SOLVE THE OTHER OVERRIDING

163

problems in this program. even national screening of first round
sites would not begin to address the problems of the first round
program, unless there is careful scrutiny and redrafting of doe ' s
guidelines. many of the basic decisions that doe has made with
regard to the first repository sites are so biased and deficient
that key aspects of the program are simply unacceptable to the
affected states. i could spend hours today explaining to you in
detail the many fundamental flaws in doe's program. however, time
will not allow me to reiterate that litany of our grievances. i
now will only refer you by way of example to nevada's "statement of
Position Concerning Shortcomings in the Repository Program," which
IS attached. This statement was prepared as a response to DOE's
report to the Congress on its purported attempts to negotiate a CsC
Agreement as required by Section n7(A) of the Act. Among other

THINGS, this statement HIGHLIGHTS NEVADA'S FUNDAMENTAL CONCERN THAT
DOE HAD, IN REALITY, SELECTED YUCCA MOUNTAIN FOR SITE
CHARACTERIZATION EVEN BEFORE THE ACT WAS PASSED, AND THAT DOE HAS
FAILED TO EVALUATE THE NEVADA SITE OBJECTIVELY AGAINST OTHER
POTENTIAL SITES. ThE STATEMENT ALSO ILLUSTRATES HOW OUR BASIC
"PRESELECTION" CONCERN HAS BEEN AGGRAVATED BY COUNTLESS OTHER DOE
ACTIONS. We have FOUND MANY SUBSTANTIAL DEFICIENCIES IN THE
GUIDELINES, IN THE ENVIRONMENTAL ASSESSMENTS, AND IN DOE ' S
DECISIONAL PROCESS FOR RECOMMENDING FIRST ROUND STATES. FOR
EXAMPLE, DOE'S MANIPULATION OF THE ROCK DIVERSITY CRITERIA IN
EFFECT GUARANTEED THAT YUCCA MOUNTAIN (AND HANFORD) WOULD BE
NOMINATED FOR CHARACTERIZATION. DOE ALSO OMITTED PROPER

164

CONSIDERATION OF THE TRANSPORTATION IMPACT AND REGIONAL
DISTRIBUTION OF REPOSITORIES FROM ALL FIVE POTENTIAL FIRST ROUND
SITE ENVIRONMENTAL ANALYSES AND FROM THE SITING GUIDELINES.

Finally, DOE has failed to compare the five nominated sites against

ALL SITES UNDER CONSIDERATION, AS REQUIRED BY THE ACT . We HAVE
been FORCED TO TAKE DOE TO COURT ON MANY OF THESE POINTS TO PROTECT

our citizens' interests, as well as, i believe, the interests of
the nation as a whole.

While we would be happy to explain such various basic
deficiencies in doe's program (many of which we have discussed
before the Committee in the past) during the course of your
investigation of this program, i would, instead, like to highlight
two other important concerns that we have not yet had occasion to
bring to this committee's attention.

The FIRST, FIINniNfi OF '^TATF PART I T I PAT I ON , IS A SERIOUS,
ONGOING PROBLEM. NEVADA'S FIRST BRUSH WITH THE DOE IN THIS AREA
INVOLVED FUNDING TO ALLOW NEVADA TO PERFORM INDEPENDENT TESTING AND
MONITORING OF THE GEOHYDROLOG I C AND SEISMIC PROPERTIES OF THE YuCCA

Mountain site. When DOE denied that funding, Nevada sued, and the
U.S. Court of Appeals for the Ninth Circuit upheld the State's
POSITION IN December 1985. Notwithstanding the Court's order, DOE
refused to fund these activities until after its May 28, 1986
announcement that Yucca Mountain would be characterized.

165

Mr. CHAIRMAN/ DOE STILL REFUSES TO EVALUATE AND FUND NEVADA'S
REQUESTS IN A TIMELY MANNER AND DOE HAS NOT ACTED UPON NEVADA'S FY
1987 GRANT REQUEST, EVEN THOUGH THE DEPARTMENT HAS HAD IT IN HAND
FOR OVER FOUR MONTHS. EVEN NOW DOE WILL NOT TELL US WHAT
ADDITIONAL INFORMATION, IF ANY, IS NEEDED TO EVALUATE THE REQUEST.
The FY 1987 GRANT APPLICATION INCLUDES NOT ONLY THE FUNDING FOR THE
TECHNICAL RESEARCH WORK WHICH WAS THE SUBJECT OF THE EARLIER
LITIGATION, BUT ALSO FUNDING FOR PREPARATION OF THE REPORT AND A
REQUEST FOR SOCIOECONOMIC IMPACT ASSISTANCE TO WHICH NEVADA IS
EXPRESSLY ENTITLED PURSUANT TO SECTION n6(C)(2) OF THE ACT .

A SECOND DEVELOPING PROBLEM RELATES TO DOE'S COMPLIANCE WITH
ESTABLISHED STANDARDS OF ENVIRONMENTAL EVALUATION AND MONITORING.
DOE'S CURRENT INTENTION IS TO GO FORWARD WITH SITE CHARACTERIZATION
AND DEVELOPMENT WITHOUT FVFR HAVING F-^TARII <;HFn A ^ITF <;PFriFir

FNV I RONMFNTAI RASFI I NF FOR YuCCA MOUNTAIN. WITHOUT SUCH A

BASELINE, HOW CAN DOE MONITOR CHANGES IN THE ENVIRONMENT ONCE
CHARACTERIZATION ACTIVITIES BEGIN, SO AS TO MINIMIZE THE
ENVIRONMENTAL IMPACTS OF THAT ACTIVITY, AS REQUIRED BY SECTION

113(A) OF THE Act? How will DOE know the pre-characterization
condition of the site in order to restore it if yucca mountain is
not selected, as required by section 113(6) of the act? and, how
will doe publish an adequate environmental impact statement, or the
nrc subsequently adopt it, as provided by section ^^k(.f) of the
Act, if no pre-alterat ion environmental condition was ever
established?

166

, I WOULD LIKE/ Mr. CHAIRMAN/ TO CALL THE COMMITTEE'S ATTENTION

to another disturbing development. nevada has raised many
technical concerns with regard to the adequacy of the yucca
Mountain site, many of which were also raised by the NRC staff in
response to doe's 1984 draft environmental assessment. our
concerns were largely disregarded by doe when it issued the final
EA's. The Committee should be aware that the NRC staff has again

RAISED MANY OF THESE SAME TECHNICAL CONCERNS IN ITS COMMENTS ON THE
FINAL EAS/ PUBLISHED IN DECEMBER OF 1986. ThE NRC HAS GENERALLY
POINTED OUT THAT DOE IS OVERLY CONFIDENT IN ITS TECHNICAL
ASSUMPTIONS/ AND THAT THE DEPARTMENT REPEATEDLY INTERPRETS ITS DATA
IN A MANNER CONSISTENT WITH ACCOMPLISHING ITS SITING GOALS. By

this i mean that doe concludes what it wants to conclude. among
other things/ the nrc noted defects in doe reasoning in six
important technical areas:

1. Active fault movement in the area of Yucca Mountain and
reacti vatation of prior faulting by nuclear weapons testing;

2. Hydro-thermal activity beneath Yucca Mountain which could
affect the waste isolation capability of the site or any
containers used there;

3. The possibility of ore deposits in the area that might cause
future human intrusion;

167

h. .DOE'S OVER-RELIANCE ON THE GEQ-CHEMICAL SYSTEM TO RETARD
RADIONUCLIDE TRANSPORT THROUGH THE ROCK;

5. DOE'S OVER-RELIANCE ON MODELS OF GROUNDWATER TRAVEL TIME IN
THE UNSATURATED ZONE (UNCERTAINTIES WERE INTRODUCED INTO THAT
MODEL AS CONSTANTS); AND

6. DOE'S OVER-RELIANCE ON THE UNCERTAIN PERFORMANCE OF ENGINEERED
BARRIER SYSTEMS/ I.E. CASKS.

As YOU WILL SEE WHEN YOU STUDY NRC S COMMENTS/ THE COMMISSION
IS/ IN EFFECT, POINTING OUT THAT DOE'S REPOSITORY SEARCH PROGRAM
COULD VERY WELL PRODUCE AN UNLICENSABLE SITE. ThE NRC S MaJOR

Comments are attached.

Mr. CHAIRMAN/ THFRF TIFARIY is no NFFn TO Al I OW TH I ^ HOF
JIIGGFR NAMPiHT TO rONTINIIF RFrKIFS<^IY rHARTnlNP; AHFAD IINTII IT

CRASHFF;. WF HAVF TIMF for A MnRATORIIIM TO <;TnP THF TRAIN ANH TO

HFVFI OP A rnN<^FN9l|c; ON HOW TO OPFRATF IT '^AFFIY IN THF FIITIIRF. WE
SHOULD/ FOR EXAMPLE/ TAKE THE TIME TO EXAMINE CAREFULLY PROGRESS
MADE IN OTHER COUNTRIES USING DIFFERENT TECHNIQUES FOR WASTE
DISPOSAL AND WASTE MANAGEMENT. JuST TWO WEEKS AGO/ Dr . CaRL-EnIK

NyquisT/ President of the Swedish State Power BoarD/ testified
before this committee regarding the swedish nuclear repository
PROGRAM. Several differences between Sweden's programs and the

168

United States' were notable. Fikst, the Swedes already have a
monitored retrievable storage program in place. its water pools
are intended to cool waste to 100 degrees c before emplacement in a
granite repository, and to give sweden another 30-40 years within

WHICH TO PROPERLY SITE AND DEVELOP A REPOSITORY. Dr . NyQUIST
TESTIFIED THAT WATER POOL STORAGE OF SPENT FUEL COULD EASILY BE
EXTENDED FOR YEARS. SECOND, THE SWEDISH PROGRAM ENTITLES LOCAL
GOVERNMENTS (THEY HAVE NO STATES) TO ABSOLUTE VETOES OF REPOSITORY
SITING DECISIONS. THIRD/ Dr . NyQUIST STRESSED REPEATEDLY THAT THE
SUCCESS OF THE SWEDISH SPENT FUEL REPOSITORY PROGRAM IN PROMOTING
PUBLIC ACCEPTANCE CAN BE ATTRIBUTED TO THE IDENTIFICATION OF
REPOSITORY SITES CLOSE TO NUCLEAR REACTORS. ThE SWEDES HAVE ALSO

chosen to assign the repository mission to a utility collective
with government participation rather than to the government itself.
This has left the Swedish government review agency free to
objectively oversee - and even disapprove - the project, thus
enhancing public trust and confidence in the waste program.

Even the Department of Energy acknowledges that the U.S.

PROGRAM needs MORE TIME. In THE MISSION PlAN AMENDMENTS THAT HAVE
JUST BEEN PUT BEFORE THE CONGRESS, DOE HAS PROPOSED A FIVE-YEAR
EXTENSION FOR COMMENCEMENT OF OPERATIONS AT THE FIRST REPOSITORY,
AND AN EXTENSION OF THE SCHEDULE FOR SITE CHARACTERIZATION.

As I NOTED EARLIER, THERE APPEARS TO BE NO "QUICK FIX" TO
BRING DOE'S PROGRAM BACK ON TRACK. THIS WILL REQUIRE A CAREFUL

169

INVF'^TiriATinN ANH FYAMINATinN OF THE STATES' CONCERNS AND OF DOE'S

MISTAKES. Only after gaining a thorough understanding of these

PROBLEMS can A CONSENSUS BE BUILT THAT WILL ALLOW ACCEPTABLE
solutions to BE DEVELOPED. THIS CORRECTIVE PROCESS WILL REQUIRE

decisive action by congress together with a firm congressional hand
to assure that doe does not simply ignore such remedial efforts and
continue to move unconcernedly along its preconceived path.

Mr. Chairman, we in Nevada are committed to work
constructively with the congress and other parties in any such

reexamination PROCESS. HOWEVER/ WE INSIST THAT THE PROCESS AND ANY
SOLUTIONS RECOMMENDED BE FAIR, AND THAT CREDIBILITY BE RESTORED TO
THIS PROGRAM. IT IS CLEAR, I BELIEVE, THAT AS A PART OF THIS

PROCESS, Congress must revisit several fundamental questions. For

EXAMPLE, IS DEEP GEOLOGIC DISPOSAL REALLY THE SAFEST AND BEST
solution to the waste DISPOSAL PROBLEM? NO OTHER NATION APPEARS TO
REGARD IT AS SUCH. ThE MRS, WHICH IS AN INTEGRAL PART OF THE
DISPOSAL SYSTEM ENVISIONEQ UNDER THE ACT, ALSO NEEDS TO BE
EXAMINED. We NOTE THAT DOE'S MRS PROPOSAL APPEARS TO BE QUITE
DIFFERENT FROM THE ACT ' S ORIGINAL CONCEPT OF A PROPOSED A! TFRNATI VF
TO DEEP GEOLOGIC DISPOSAL. THERE ARE MANY OTHER ISSUES AND
QUESTIONS THAT MUST BE ADDRESSED. FOR EXAMPLE, IS IT NOT PATENTLY
UNFAIR FOR ONE SEGMENT OF THE NATION TO BE THE PRIMARY USER AND
BENEFIT I ARY OF NUCLEAR POWER PRODUCTION AND FOR A DIFFERENT SEGMENT
TO BEAR THE RISK AND STIGMA OF ITS BY-PRODUCTS? IS DOE REALLY THE
BEST ENTITY TO PURSUE THE WASTE DISPOSAL MISSION, GIVEN THE

170

inherent conflicts of interest with regard to its defense and
commercial nuclear programs?

All of these difficult issues will require time for

CONSIDERATION AND RESOLUTION. WE STRONGLY URGE/ Mr . CHAIRMAN, THAT

THE Congress call for a moratorium to temporarily halt a program

THAT IS OUT OF CONTROL AND HEADED FOR FAILURE. CONGRESS SHOULD
then UNDERTAKE THE CAREFUL ANALYSIS THAT IS REQUIRED TO DEVELOP
WORKABLE SOLUTIONS TO THIS DIFFICULT ISSUE.

171

UNITED STATES

NUCLEAR REGULATORY COMMISSION

WASHINGTON o C J0555

9fl;

MP. Stephen H. Kale, Director ^^ . . l. .. i_-

Office of Geologic Repositories ..,. - .

U.S. Department of Energy ^^^* -' '--'
Washington. DC 20585 , .,...^ _ _ __

Dear Mr. Kale:

The Nuclear Regulatory Commission (NRC) staff has completed its review of the
five final Environmental Assessments (EA's) issued by the Department of Energy
(DOE) on May 28, 1986 for the first high-level radioactive waste repository.
The purpose of this letter is to inform you of the results of our review
(Enclosure 1) for consideration by the DOE in the development of the Site
Characterization Plans (SCP's).

These NRC staff comments on the final EA's are part of the continuing interface
between the staffs of the DOE and NRC which will lead to early identification
and resolution of potential licensing issues. In the short term our comments
should assist the DOE in preparing high quality SCP's. Therefore, we believe
that the opportunity afforded by the final EA's for early interaction between
NRC and DOE will be beneficial to the progress of the repository program.

It is apparent that significant efforts were made by DOE to respond to each of
the NRC staff major comments on the draft EA's, and in fact, many of these
comments have been resolved. However, in each of the final EA's our review
identified remaining concerns which are principally related to 1) not
Identifying the range of uncertainties associated with the existing limited
data base, 2) not identifying the range of alternative interpretations and
assumptions that can be reasonably supported by existing data, and 3) not
incorporating a reasonable range of uncertainties and alternative
interpretations into evaluations and conclusions. Based on these concerns we
believe that some conclusions in all five final EA's are still overly favorable
or optimistic for the areas of comment. At this stage of the site
investigation and screening process there is inherent uncertainty in site
information that can lead to alternative interpretations of data. Furthermore,
resolution of uncertainties -- such as those identified in our comments -- must
await detailed site characterization. However, recognition of these
uncertainties and alternative interpretations is critical to the development of
test plans that will lead to adequate characterization of sites and result in
the information needed for licensing. To the extent necessary for
demonstrating compliance with 10 CFR Part 60, site characterization testing
should lead to narrowing the range of uncertainties, eliminating alternative
interpretations and confirming or revising assumptions on the basis of new data
and analyses. This narrowing process will not be effective unless test plans

172

- 2

recognize the range of uncertainties and alternative Interpretations and
assumptions that can be reasonably supported by the existing data.

The NRC staff has not attempted, nor do we consider It appropriate to evaluate
the ranking of the sites. Accordingly, we have not performed a detailed
evaluation of the following two documents: "A f'ul tiattribute Utility Analysis
of Sites Nominated for Characterization for the First Radioactive-Waste
Repository - A Decision Aiding Methodology {DOE/RW-0074) and "Recoanendatlon by
the Secretary of Energy of Candidate Sites for Site Characterization for the
First Radioactive-Waste Repository" (DOE/S-0048). The review that was done
Indicates that conclusions on repository performance In the Methodology
Document (OOE/RW-0074) that were derived from evaluations and conclusions 1n
the final EA's, that ire considered In our comments to be overly optimistic,
in likewise considered optimistic.

Over the past few years we have Identified the need for recognizing
uncertainties and alternative interpretations in the DOE program as reflected
in our coiments on the 8WIP Site Characterization Report (NUREG-0960) , the
draft EA's, and the draft Project Decision Schedule. In addition our staffs
have met numerous times over the past few years to discuss this subject. Wh11«
we feel that these interactions have resulted in final EA's which exhibit
progress in these areas, we consider that further Improvement In recognition of
uncertainties and alternative interpretations is still needed. We also
recognize the progress that has been made recently by DOE and NRC agreeing on
how uncertainties and alternative interpretations will be considered 1n the
SCP's and supporting study plans (NRC/DOE meeting on Level of Detail In the.
SCP, May 7-8, 1986). However, because of the difficulties encount&red in the
past in addressing uncertainties and alternative Interpretations, we consider
it important that our staffs discuss representative conments in these areas as
part of our pre-SCP Interactions to agree on how they will be considered in the
development of test plans. Two representative coaments which we consider would
serve as timely examples for discussion at technical meetings In the near
future in groundwater travel time at the Hanford Site and hydrothermal
activity at the Yucca Mountain Site. Mr. Linehan will be contacting your staff
to make arrangements for these and other pre-SCP technical meetings.

Sincerely,

Robert t. Browning, Director
Division of Waste Mana^emeni
Office of Nuclear Material
Safety and Safeguards

Enclosure:

NRC Staff Conments on the DOE
Final EA's

173

NRC STAFF COMMENTS

ON THE
DOE FINAL ENVIRONMENTAL ASSESSMENTS

DECEMBER 22. 1986

DIVISION OF WASTE MANAGEMENT
U.S. NUCLEAR REGULATORY COMMISSION

174

TABLE OF CONTENTS

Pcre No.

List cf Contrltutcrs 2

Introduction

Sacicqrcura 5

UK Staff Review 5

Cortents 7

Conclusions and Reccmnendationr S

Major Coiments en the Hanford Site IS

Major CcffT^ents on the Yucca Mcurtain Site 33

Major Ccarents en the Davis Carycii Site 55

Major Conanents cr the Deaf Snith Site 77

Major Cornrents cr the Richton Ccme Site 95

175

LIST CF CCNTSiauTQRS

Technical Revltxer;

Hanford Site

Hi-jlc Lefevre, lead tec.inical reviewer, geology/gee:-/; ic;

Micnael aUckforS, tecnnical reviewer, seology/geoonysi cs"

Kei^.1 McConnell , technical reviewer, geology/geophysics

Abou-3a)<.r Ibranim, tecnnical reviewer, geology/geophysics

Mike Weoer, lead technical reviewer, hycrology

Neil Coleman, technical reviewer, hydrology

Ted Johnson, technical reviewer, surface water hydrology

Oavid Brooks, lead technical reviewer, geochemistry

Paul Bemoia. tecnnical reviewer, geochemistry

Tin Mo, technical reviewer, geochemistry

John Buckley, lead technfcal reviewer, rock mechanics/design

Kien Chang, lead technical reviewer, waste package

Everett Wick, tecnnical reviewer, waste package

John Libert, lead technical reviewer, performance assessment

Willian Lilley, lead technical reviewer, environraent/socioeconomics

Susan Bilhorn, lead technical reviewer, quality assurance

Yucca Mountain Site

Charlotte Abrams, lead technical reviewer, geology/geophysics

Keith McConnell, technical reviewer, geology/geophysics

Michael Blackford, technical reviewer, seismology

Jeffrey Pohle, lead technical reviewer, hydrology

Richard CoCell, technical reviewer, hydrology

Ted Jonnson. technical reviewer, surface water hydrology

Jonn Srsdtury. lead technical reviewer, geochemistry

Linca Kovach, tecnnical reviewer, geochemistry

Paul Bembia. technical reviewer, geochemistry

Oinesh Gupta, lead technical reviewer, rock mechanics/design

Jonn Peshel . technical reviewer, rock mechanics/design

Cavid Ti kt-nsky ,, technical reviewer, rcc< ■nec.ian-cs.'ces- ;n

T-cTias Junglirg, lead tecnnical rev-ewer, waste pac'^age

Sarsra Wastler, lead technical reviewer, pe'forTianc; assess.~ent

William Lilley. lead tecnmcai reviewer, envi ronmeni/socioeccncnics

Susan Biihorn, leac tecnnical reviewer, quality assurance

Davis Canyon Site

Julia Corrado, lead technical reviewer, geology/geccrysics
Ric.harc Lee. tec.inical reviewer, geology/ gecsnysics
Michael 2;ack:orc. technical reviewer, seis.'nolcgy

176

. Abou-3alir Ibrahim, technical revlewe-, geology/geophysics
Atef Elzeftawy, lead technical reviewer, hydrology
Fredericli Ross, technical reviewer, hydrology
Ted Jonnson, technical reviewer, surface water hydrology
Walt Kelly, lead technical reviewer, geochemistry
John Bradbury, technical reviewer, geochemistry
Jerry Pearring, lead technical reviewer, roc'i. mechanics/design
Naiem Tanlous, technical reviewer, rock, mecnanics/cesign
Steve Smyk.owsl<.1 , technical reviewer, reck, mecnanics/design
LI Yang, technical reviewer, rock mechanics
John Voglewede, lead technical reviewer, waste package
Charles Peterson, technical reviewer, waste package
Pauline Brooks, lead technical reviewer, performance assessment
William Lilley, lead technical reviewer, envi ronment/socioeconomics
Susan Bilhorn, lead technical reviewer, quality assurance

Oeaf Smith Site

Julia Corrado, lead technical reviewer, geology/geophysics

Richard Lee, technical reviewer, geology/geophysics

Frederick Ross, lead technical reviewer, hydrology

Ted Johnson, technical reviewer, surface water hydrology

Walt Kelly, lead technical reviewer, geocnemistry

Jim Tesoriero, technical reviewer, geochemistry

Jerry Pearring, lead technical reviewer, rock, mechanics/design

Naiem Tanious, technical reviewer, rock, mechanics/design

John Voglewede, lead technical reviewer, waste package

Charles Peterson, technical reviewer, waste package

Pauline Brooks, lead technical reviewer, performance assessment

William Lilley, lead technical reviewer, envi ronment/socioeconomics

Susan Bilhorn, lead technical reviewer, quality assurance

Richtcr Come Site

Julia Corrado, lead technical reviewer, geology/geophysics

Ricnard Lee, technical reviewer, geology, geoenysics

William Ford, lead technical reviewe'. hydrology

-'ecerick. Ross,' technical reviewer, hydrology

Tec Jonnson, tecinical reviewe', surface wate' rycro'cgy

Walt Kelly, lead technical reviewer, geochemistry

Jim Tesoriero, tecnnical reviewer, geoc-emistry

Jerry Pearring, lead tec*nical reviewer, rock mec.-.anics/deslgn

Barad Jagannath, technical reviewer, rock mechanics/design

Naiem Tanious, technical reviewer, rock mechanics/cesign

Jonn Voglewede, lead tec.mical reviewer, waste package

Charles Peterson, tec.".-ical reviewer, waste package

Pauline Brooks, leas tec."nical reviewer, perfortnance assess.r.ent

William Lilley, leas tec.'nical reviewer, envi ronment/sodoeccnomics

Susan Bilhorn, leao tec-:nicil reviewer, quality assurance

177

Section/Technical Omilty Seviewers

John Traos, acting section leader, geology/geophysics

Myron Fllegel, section leader, hydrology

Kenneth Jackson, section leader, geochemistry

Mysore Nataraja, section leader, rock mechanics/design

Tinothy Johnson, section leader, waste package

Seth Caplan, section leader, pe-'or-nance assess.nent

Regis Boyle, section leader, envi ronment/ socioeconomics

P'oject Reviewers

Paul Hildenbrand, project manager, Hanford Site

John Libert, project reviewer/integration, Hanford Site

Phil Altomare, project reviewer/policy, Hanford Site

Robert Jcnnson, project manager, Oavis Canyon Site, Deaf Smith Site,

Richton Dome Site
Pauline Brooks, project reviewer/integration, Oavis Canyon Site, Ceaf

Smith Site, Richton Dome Site
Dan Galson, project reviewer, Oavis Canyon Site, Oeaf Smith Site, Richton

Oome Site
Robert MacOougall, project reviewer/policy, Oavis Canyon Site, Deaf Smith

Site, Richton Ocme Site
King Stablein, project manager. Yucca Mountain Site
Sancra Wastler, project reviewer/Integration, Yucca Mountain Site

P'caucticn ''anace'-

Eileen Tana
Branch Chief Reviewers

Jcnn Greeves, b'inch c.iief, engineering

Philip Justus, acting branch cmef, geotechnical

Jonn Linenan, acting branch chief, repository projects

Dec' sign Sustert System Reviewers

Lscn Se'atan
?r>»cis Came'cn
John Surrieier

Final zJ> Rev'ew Coordinator

Rccart Jonnson

Civi s ■c/Of -ic? Si'ector Revi?we"s

Rcoert Srcwning, Olrectcr, jiyision of Waste Management

Jonn Cavis, Director, Cf"'ce o: Nuclea- ''ats'iai Safety i.-d Sa"eg'.a-cs

178

INTSCCUCTICN
Background

ic^ciai aitv. wwawc avj^ii\.icd, iuuiaii iiiucd, variUUS iriucrci^ yiwUyS dMU me~Ce

of the public. In accordance with the repository siting gulielines (10 CrS
Part 960) the Secretary of Energy on May 28, 1986 issued five final EA's and
nominated five sites that he deter^nined suitable for site characteri latlon
from the original nine potentially acceptable sites. The five sites nominated
are Davis Canyon, Deaf Smith, Hanford, Richton Dome, and Yucca Mountain (the
same sites proposed for nomination in the draft EA's). The Secretary of Energy
also recccmended three of the five sites for site characterization: Deaf Smith,
Hanford, and Yucca Mountain (the same sites proposed for recommendation in the
draft EA's). The President has approved this recommendation. DOE also issued
two other documents titled: "A Mul tiattrlbute Utility Analysis of Sites
Nominated for Characterization for the First Radioactive-Waste Repository - A
Decision-Aiding Methodology" (OCE/RW-0074, referred to below as the Methodology
Document) and "Recommendation by the Secretary of Energy of Candidate Sites for
Site Characterization for the First Radioactive-'Vaste Reoosltory" (DCE/S-0C18,
referred to below as the Recommenaation Document). Together with the final EA's
these docu.Tients provide the support for the DOE nomination and recommendation
ceci sions .

NRC Staff Review

The NRC staff has reviewed and prepared comments on all five final EA's. The
staff concuctad its review according to the NRC Division of Waste Management's
"Standard Review Plan for Final Environmental Assessments" (March 18, 1986),
which states that the final £A review is being done 1) to Inform the Commission
of any major concerns the staff may have with the final EA's and 2) to support
NRC's ongoing effort to Identify major concerns important to NRC's prelicensing
consultation with COE. The Nuclear Waste Policy Act (N'«iPA) and NRC regulations
ccve--;ing licensing of the geologic '■soository provide for consultation bet-.ae'^
CCE arc NnC staffs prior to for-nai licensing to ass^^re t.-.at licensing
:.-f 3r:::aticn neecs and recuireTents are icentified at an ea-ly time. The fi":a'i
£.i's give current 1nfor:natlon and revised DOE conclusions regarding the sites
afte' conslcerable evaluation by CCE of numerous comments on the draft lA's.
Therefore, they provide current CCE positions and a foundation upon which CCE' s
project planning (including preoarations for the Site Characterization Plans
(SCP's) arc draft environmental Impact Statement (EIS)) will be ceveloped for
those sites recommended for site Characterization.

179

These NKC scaff ccnrents on the final EA ' s are part of the continuing
interface between the staffs of the OOE and NRC which will lead to early
identification of potential licensing issues. In the short tern our ccnrents
should assist the DOE in preparing high quality SCP's. In its concurrence
action on the siting guidelines, the Ccnri-ssion found that the guidelines
are consistent with the requireirents of its own regulations on geologic
••sposi tones (10 CFS Part 60). Therefore, while the staff has not identified
how its ccrrr.ents relate to the specific requireirents of 10 CrS Part GC, r.he
.'IRC staf^ considers that they serve to identify open iten: which are relevant
tc potential licensing of each site bised on inforniation cur'-ently available
and which will need to be resolves during site characterization. Therefore,
he believe that the opportunity afforced by the final EA's for early
interaction between fIRC and COS will be beneficial to the progress ef the
repository program.

The ctjectlves cf the NRC sta'f review are as follows:

1. Identify end document any major concerns with OOE's responses to the
iVRC major cctrwents on the draft iA'% ano certain detailed ccrrments
(i.e. those referenced by major comments and other detailed comrents
that row appear to warrant the same attention as the nsjor comments
biased on the ongoing review of OOE's program). Ir other words
identify residual major concerns not adequately addressed by OOE.

2. Become aware of as well as Identify and document any major concerns
with rew data and informaticn resulting from revisions/additions to
the craft ZA's by COE.

3. Identify and document any mcjor concerns with changes to the finoings
and supporting material in the final EA's.

^. Identify and document major concerns with the technical evaluations in
Chapter 7, the ."ethcdology Cocuirent, ar.i t!:e Recoiraierdation Cocuraent
inciucirc inconsistencies in use of data, intarpretaf'ons, etc.,
betweer Chapter 7, the Hethodo'ogy Oocuirert, the Recrmrendation
Cccurent and supcorting final EA chapters. This dees not include a
'eview of the evaluatirr rethodolccy or the rarVing of tne sites.

5. Identify and doc.-merr any inconsistencies between the evaluation

.-et.'-cdology In Chapter 7, the i^ethodology Cccument, :niJ the 3eccm-e'"da:icr
Document and the I'tinc guidelines as ccncur-fld in by the Ccimiss'cr
(including whether or not the evaluation methodology is an interpretation
cf the guidelines).

The final £A review 's net a review like that rf the dra-t EA; it is net a
ccrprehers've ana detai'ed rsviev e'fort to icentify i'/ery concern arc dncu.Tent
t.'ieie ccncn.rrs as iiajor cr.a detailed crmnents. The final EA review, a:

180

ir.cicated atove, focuses only on docuirenting major concerns 1r the form of
major ccxn-ents. Detailed ccmrcnts, whfch were developed for the draft EA
reviews to improve the information provided in the final EA's, were not
developed since the EA's are rcw final. Furthemore, identifying only majcr
concerns sharply focuses on high priority concerns needing attention in the SCP
aevelopment.

Just as In the draft EA revew, the .'PC staff has ret perforred a aetai'ed
review w- th regarc tc the site characterization plans described m Chapter 4 er
the repositufy descriptions in Chapter 5 of the firal EA's. The staff only
ccrrjT.ented on the plsns for characterizint; the geohyarological regime beneath
Canycnlands , national Park, fclose to the Davis Canyon site) because it was a
major ccmrent on the draft EA, ard because of the potential impact on the park.
Site cnaractecization plans and repository descriptions will be reviewed by the
.VRC staff upon receipt o" the SCP's, and coimrerts vnll be docurented ir f.RC's
Sire Characterization Analyses.

Because of the limited tiire available fcr review relative to the amount of
infcrration existing for the five sites, the staff prepared for the final EA
reviews long befort their receipt. Preparations included 1) reviewing selected
new cr revised final EA references containing significantly different
inforr:;ation, 2) reviewing draft EA conipents from States, Indian Tribes, ari
other Feceral agencies, 3) conducting technical meetings with CCE, States and
Inaiar Tribes en selected technical concerns identified in draft EA comments,
and i] conducting selected data reviews and site visits. This early preparation
ana familiarization with the e.xicttng data base has allowed the staff to better
deterrine if the conclusions in the final EA's are cons'stent with the available
data.

Contants

The attachec ccmr.ents describe nn'iy major concerns resulting from the review of
the final EA's. Therefore, "nc cciment" merely indicates that no major
ccr.cerns we'e identified. Table 1 lists for each final E.A the ttajrr comments
resulting fri:r both the draft and final EA reviews thus indicating in which
a";as rajor concerns remain. i"ajor coirrents are grouped for each of the five
•ir.al EA's. 'o'ithin the c'tup of cammert: 'or eac'" separate final EA the order
•'s gcveri^ea ay the faC that sere ccr^jnents, :^t'r^. help the reader unde'Stard
cfe.-s, ce.'^ie f;i-st.

"he heacirg for each ccinre"t contains a reffiriirce to the appropriutP draft c^
c:r7.T6nt -'or ease 'n tracking tr.a staff's concerns Sact; to the original ccrvtent.
Alto irextified in the heading 'or organizational purposes are the relevant
-uidePne conaiticnj. Each ccrrent consists of 1) a ststament of the origira-
concern wit.'i the d-aft EA; Z) those port^rrs of the original concern that have
iee" "-esolvec; 3} the reraining ma;cr concarn(s'; i) the b?;is for tne
remaining concern with reference to aooropriate sectiuni ir the fir.i\ EA; ano
5; the significance of the remaining concern.

181

Comrercs that ippear nearly identical for ttit differert si'-es ref'ec
infcrn-atlon tfi4t was presented In the final EA's that was verv similar among
sites. Similar ccirments do, however, tal^e into consideration' di fferences
resulting from site-specific infonnaticn.

CCNClUSrCNI A;W RECO«hEMDATIONS

I: is aoca-ent that significant efforts were trace by CUE to res3ond to t.^ie NnC
staff major consents on the draft EA's, and in fact many of these ccniner*s have
tesn resoWea. however, ^or each of the final EA'z cur'rev'L-w identificC
rep?imng concerns irany of wh-ch are the Sine type of ccncerns identified ir
our ruview of the draft EA's such as 1) not identifyino the range of
uncertainties associated with the existinc I'm ted data base, 2) net
identifying the range o* alternative interpretstions and assumptions that can
be reascnaOly supportea by existing data, and 3) not incorporating a reasonable
range cf uncertainties and alternative interpretat'rns into evaluations and
ccnclusions. Based en the above we believe that some conclusions in the final
EA's are stilt overly favorable or optimistic for the areas cf ccmre'it.

in cccordance v/ith our review plan, the NfiC staff also reviewed aspects of the
^etnodo'opy Document. As mentioned earlier the NKC staff did not evaluate the
rsnking of the Sites or the ranking methodolooy itself. Just as was done fnr
the dra't E;'.'s, the reVew focused en the existing data anc how that data was
used in the evaluations in the final EA's and the Nethodology Document. From
this revifi'rf it was clear that evaluaticrs and conclusions regarding site
concitions presertea in the final EA's were factored into the evaluations of
scenarios and their consequences presented in the "ethodology Document.
Tne-efcre, conclusions on repository perfomance ir the Methodology Document
that were derived from evaluations and ccnclusicns in the final EA's, that ir°
tunsicered 'n our comreiits to be overly optimistic, ire likewise considered to
be overly optimistic. Scire examoles for the Hanfcrd Site are i) insuff ic-ent
corsiderafcn of flow along large, discrete faults and fracture zones that nav
exist within dense fTcw interiors, including consideration of fracture flow as
ir "unexpected" feature rather than an "expected" one, and Z'l inadeouate
cpnsidaraticn of alternative assuirptions regarding pucping for the sral l-seaie
exoloratcry drilliru scanario. Seme facers which were not giver rufficiert
ccrsida-jfcir for the Sjlt sires ar-i I] e'fects of host rccV mass
hetsr-cene't^es and 2} sha-'t and re-jn.--- tcry sealir; '::;nc3-r: re'ated tc
t-e-rri'ly induced salt creep ard di f-'erential uali-'t. An exano'e frcm :.ne
Yucca "cuntair Site is the 'ack of can; ice'-aticr that liydrotherr<al actn-'ty
c:uld be a future source of fluia important tc v.-asta package corros-'er. ror
cl" sites, the effects of alternative corrosion cechanisms were not factored
into waste package liietir.e ana'yjes. Finally, ccr.siuer'ng the exacpies noted
above ,^ it is overly oeti.Tiist-c to state on p. ;-Jl of -he .Hethoaolcgy Ccc-j.T'er t
that "'/.Ten placed cr a scale where a lero cir be intarpreteo as ger-'crranc? '.:
tne .Tiir-run leve' required by :he pri-ary-ccnta irmer : recuirerents of tne 17 A.
sta.-,c<-rcs and ICC is parfi-.ticr, all c' the sites havw expected utilities if
i9.r c- higner."

182

The s igni r:c3ncs of the Jtcve concern: is to CCE's ongoing preparaticn of zhe
iCP's and eventually to site characteruation activities, since both the
general over cptinis.-;' as well as the specific concerns coula result in
inadecujte testing prccrams and inadequate Irfomaticn at the time cf
licensing. Shoula the nnne of uncertainties and alternative interpretations
tfio assumptions that can te reascnatly suooorteu' by the e.'^isting data not be
ccnsiderec! in the SCr ceveloomenr. the SC? couic be deficient in tne
icenti vitit'on and description c' I) the site including the range or
uncertainties in kncwn site ccnditicrs; ;) the issues and infcmation needed
to resolve issues; 3) the issue resoluticn strategies; 4) the perfomance
aliccation (i.e. the defir'tion of perfurrance goals and desired, assccir.tad
confidence levels fcr various components cf the repository system); 5) the
investicatior and study plai'S (tests and analyses); and 6) the rsticnales for
investigations and studies vi'.th consideration to various sources of
uncertainty. To the extent necessary -^or deirrnstrating compliance w'th 10 Cfn
Parr. 60, site character'zation tests should lead to narrowing the ranre cf
uncertainties and eliminating alternative interpretations and conf inning or
revising assumptions on the basis of new data arc analyses. This narrowing
process will not be effective un-ess the rest plans recognise the rsnge of
uncs'tainties ana alternaf've interpretations and assumptions that can be
reasonably supported by the existing data. It is important tc note that
because cur corr.-ents ire only reiatea to the mate'-ial which we reviev/ed in
the final EA, they are not a complete list of cur concerns important to the SC?
development. V.'e have identified such concerns in our correspondence and
technical meeting sumraries witn COt.

Cver the past few years we have identified the reed for recognizing
uncertainties and alternative interpretations in the COE progran as reflectec
in our corrinent: en the BWIP Site Characterization ."eport {NUHEG-C960) . the
draft EA's, and the draft Project Cecision Schedule. Ir addition, the fIRC and
COE str;ffs have met numerou: fmes over the past few ye^rs to discuss this
iubject. Uliile we fee' that these mteractirrrs have resulted in final E^ ' s
>.hich exhibit some progress in these areas, we ccrsider that further
ifrprcveire.'it in recognition of uncertainties and alternative interpretations is
St' 11 neeced. !n addition, further progress has been made recently by CCS ana
.'iP.C agreeing on how uncerti inties and alternative interpretaticrs will be
i:;;ns-derad in -lie SCP's arc sucrorf'ng stucy plans 'NPC/OCE meeting on Levc'' cf
C^tai* 'n the SC?, .'-'ay 7-5-, i9ffl. For c.ie abcv° reason; ve an providing our
ctr-ents far uCE's consideration, .-urthe'^ioro, ue reccmr.e'ir: that becauze cr
tne Cifficulties encounterec ^r the past in jocressirj uncertainties ina
diterr?tive interpretaticrs ■.♦e consioer it important that the .NP.C anc CC£
s'c'fs discuss representative coiinients in thes? areas as part o" cur ;:ri^-tC>
interactions to acre^ on hew they will be ccnside'-ed in the aevelucre''t of test
jlans.

183

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188

MAJOR COWENTS
ON
YUCCA MOUNTAIN SITE

189

Cc-ment 1

Fault Activity (Qraft EA Hajor Coffment 1)

GuideHnes en Tectcnics 10 CF^ 960.A-2-7 (dV. and 960.5-2-11 (a).(cK3)

In NRC Staff major ccntnent 1 on the in
raised tnat ces:ite indcations elsewne
the vicinity of Yucca Mountain are cons
considarea to be not active In the asse
of fault moveTient at tne Yucca Mountain
in the final c.'^ are siill based on the
justification (final EA, Section C.4.1.
Mountain are not active (final EA, Sect
paragraon). However, elsewhere in tne
and 6-263) the faults are considered as
evidence supporting that position — in t
consicers that the concerns expressed i
to the discussions in the final EA.

ft EA for Yucca Mountain the conce'i was
re in the draft EA irat the faults in
idered as potentially active, t.iey im
ss.Tient of the expected nature anc rates

site. Preliminary seismic assess.-ents
assumDtion--suoported by some
1, page €.4-5) — that the faults at Yucca
ion 6.3.1.7.5, page 6-275. last
final E.A (Section 6.3.1.7.4, pages 6-257

potentially active; in light of the
he final E.A and in this comment — the NRC
n the original comment remain relevant

Justification for the assumption in the final EA that the faults at Yucca
Mountain are not active is identified as being obtained from U.S.G.S. Ooen File
Report 84-792 (final EA, page C.4-5, last paragraph). However, the
interpretation presented in U.S.G.S. (1934) is at least in part based on the
assumption tnat maximum and intermediate principal stresses are essentially
equal (U.S.G.S., 1934, page 76), an interpretation that has recently been
disputed (Healy and others, 1984; Stoclt. and others, 1985). In addition, there
is a growing body of evidence that supports an interpretation that at least
some of the north-trending normal faults in the vicinity of Yucca Mountain have
had movement in the last 40,000 years. The primary evidence for Holocene
faulting at Yucca Mountain is a thernoluminescence age of approximately 6000
years for latest movement on a fault in the eastern part of Crater Flat (final
E.A, page 3-20, 1st paragraph). Isotopic evidence-from other parts of the NTS
sucoorts ages of less than 40,000 years for latest movement along favoraoly
oriented faults. This evidence includes ages of approximately 35.000 years and
37-97,000 years for the last natural movement on the Yucca and Carpetbag faults
respectively (Knauss, 1931). At least portions of the Yucca fault may have hac
natural reverent as recent- as ICCO years ago (Knauss, 1931).

Scth the Carpetcag ir.6 Yucca faults a.-d similarly oriented faults in Panute
Mesa have been reactivated by nuclear weapons tests suggesting t.iat stress
magnitudes in the vicinity of the faults are at or close to values at whicn
failure would occur along favoracly oriented structures (final EA, page 5-253).
At Yucca Mountain, hyorofrac tests in holes US'W G-1 and G-2 by Stoclc and otners
(1935, cage 37C5) incicate t.-at st-ess .■nacnitudes at Yucca Mountain have
-easured val-es "c:csa to values at wnic." slip would occur on favoraply
oriented fau"t:" (also see Healy anc ot.-.e-s, 1984). The fact t.".at s'lio is
cccur-ing along favoraoly oriented structures is supported by seismic evice'CJ
that indicates that nort.-i trencinc faults are active en t.-.e NTS. For exa.-nela.

77-10A 0

57-7

190

eartfiQualces associated with northeast-trenciing faults are believed to be
associated with "shorter Intervening fault seg.-nents with a north stri'ne" (final
£A, page 3-20, 3rd paragraph).

Comment 2

Nc-theast-Trending Fau1 ts-(Craf t EA Detailed Connents 3-2. 3-3. 3-<l. 3-5. 2-1)

Guidelines on Tectonics 10 C.=R 960.4-2-7 (c)(z) . (c)(6), (d) and
95C £-2-11 (c)(3). (d)

In several comments on the draft EA (detailed comments 3-2. 3-3, 3-4, 3-5, 3-8)
the NRC staff indicated that the limited recognition and discussion of
northeast-trending strike-slip faults near Yucca Mountain contributed to aa
inadequate assessment of the nature and rate of fault movement at the Yucca
Mountain site. Examination of the final EA shows that consideration of those
'faults is still limited. In fact, the importance of the northeast-trending
structures was de-e.mphasized by the omission of the northeast-trending Mine
Mountain fault from figure 3-4 (final E.\, page 3-14, map portraying major
Basin-Range faults) and by the lack, of discussion of Maldonado's (1985) map of
the Jackass Flats area on which he extends the Mine Mountain fault zone across
Jackass Flats east of Yucca Mountain. The NRC staff considers that the
original comments remain relevant to the final EA and that the omission of the
nortr.east-trending strike-slip faults reflects inadequate recognition of
current uncertainties regarding the nature and rates of fault movement.

The bases for the concerns raised by the NRC staff relate to the aforementioned
Mine Mountain fault in particular and to five features of northeast-trending
faults in the Yucca Mountain area in general (detailed below). These six
factors strongly suggest that northeast-trending faults are an important
tectonic element in the seismotectonic evaluation of the Yucca Mountain site.

1) Historical seismicity is associated with the northeast-trending Mire
.Mountain, Rock Valley, and Cane Spring strike-slip faults (20, 26, and 23
kilometers from the site respectively) (U.S.G.S., 1984). Northeast-
trending strike-slip faults are considered to be tne most seism-cal'y
active faults en the. NTS (McKague and OrV.ilc. 15S4; U.S.G.S., 1934).

2) Tne southeastern cor-^er of Yucca ."^cuntain lies along the western margin of
t.-.e Soottad Range-Mine Mountain structural :ore, a major
nortr.east-trencing structural belt (Carr, 1584). The Mine Mountain fault,
a major nortr.east-trencing sel smlcal ly active fault within the Scotted
Range-Mine Mountain structural zone, trencs southwestward into Jac<ass
Flats ('J.S.G.S., 19H4. Figure 3) arc .lay extenc across Jackass Flats
(Malconaco, 1985). Extension of t."e M*ne Mountain fault soutnwara throug.i
Jaccass -lats srircs tne fault close- to Yucca Mountain t.-.an t.-.e 14 km
wnicn seoaratas tne Ear? Mountain fault from the reoository site. The
Bare Mountain fault is usee as t.-.e baseline for seismic r1s< (final Z.^.
Section 5.3.1.7.5, page 5-275).

191

3) Scott anC Bonk (1934) maoped an area of very closely soaced, northeast-
trending faults in the southern part of the site (final EA, page 3-15,
first paragraph). The significance of these northeast-trending faults at
Yucca Mountain and their potential for movement in the present stress
field Is unk.nown.

4) A northeast-trending aeromagnetic lineament that passes through the center
of Lathrop Wells basalt center is located just to the south of the site
ana east of Busted Sutte (Carr, igs^, Figure 23). Maldanado (1935) piacss
a northeast-trending fault along tne trend of this aeromagnetic lineament
(approximately 8 km from the repository site) extending the fault
northeastward into the Shoshone Mountain area. Northeast-trending faults
are known to be present on Yucca Mountain and Busted Butte; the relation
of these faults to the aeromagnetic lineament (fault?) and to seismicity
1n the Spotted Range-Mine Mountain structural zone Is unknown.

5) Volcanism, particularly younger basaltic activity, 1s oriented along a
fairly consistent northeast trend (Carr, 1984). This northeast-trending
belt of basaltic volcanism near Yucca Mountain is termed the Death
Valley-Pancake Range belt by Carr (1984) and Is known for its relative
youthfulness and association with a higher than regional tectonic flux.
Of concern to the NRG staff 1s the relationship of volcanism to the
northeast-trending faults near Yucca Mountain as possibly demonstrated by
the association of Lathrop Wells basalt center to the northeast-trending
aeromagnetic lineament passing just to the east of Busted Butte (Carr,
1984).

The NRC staff considers that the lack of a comprehensive evaluation of
northeast-trending structural features could result in underestimated values
for magnitudes of vibratory ground motion and the potential for volcanism at
the repository. In the final EA. the Bare Mountain fault 1s used for the
determination of seismic risk. The U.S.G.S. (1984) states that If faults
neare:- to Yucca Mountain than the Bare Mountain fault are found to be active,
then acceleration estimates determined for Yucca Mountain could be much higner.
The Mine Mountain fault and its possible extension through Jackass Flats, the
closely spaced faults of Scott and Bonk (1984), and the northeast-trending
ae'-omagnetic lineament (Carr, 1984) are all Imccrtant tectonic elements in the
C3t5'-T:ration of seismic risk at Yucca Mountain.

Co.-Tir.ent 3
Cetacr.T.ent Faulting

Guice'i-es on Tectonics 10 CFR 960.4-2-7 (:)(5). (:)f6). (d): and

9i0.-:-2-i: (:)(3). (d)

The final cA states tnat low-angle detachment faults may be present below "ucca
Mountain anc that the possibility that they co exist will be explored curing

192

site characterization (final EA, Section C.4.1.1, page C.4-4, l;h paragraph).
Based on dcc-mented evidence of the development of detachments in the Basin and
Range Province during the mid-Miocene, It is reasonaOle to suggest the possible
presence of detachments beneath Yucca Mountain. The NRC staff 1s concerned
because recent publications (Scott. 1936; Scott and Rosenbaun, 1986) have

3 _, .-. equate recognition of current

uncertainties regarcing the nature and rates of faulting during the Quaternary.

Scctt (1936) implies that normal faults present at Yucca Mountain are connected
to and are imbricates from a detacr.ment surface at the Tertiary-Paleoioic
boundary (depth of aporoximately 2 km). Moreover, to the northwest of Yucca
Mountain, Hardyman (1984) has ooserved detachment surfaces at the
Tertiary-pre-Tertiary contact and at most contacts throughout the Tertiary
section. He also notes that high-angle shear planes can become quite common
(several per meter) above detachment surfaces (Hardyman, 1984, page 196). The
NRC staff is concernea that if detac.iment-type faulting is present at Yucca
Mountain as has been reported by Scott (1986), then many unrecognized
detachment surfaces may be present within the Tertiary section and there is
potential for shattering of the units above the detachments.. In addition,
based on hydrofrac stress tests (Stocic and others, 1985) normal faults on Yucca
Mountain are at or close to a state of failure. If normal faults on Yucca are
functionally associated with detachment surfaces, then the detachment along
which they are connected may also be at or close to failure. Slip along a
normal fault could then occur along a much more areally significant structure
(i.e., the detacnment) than previously believed. A discussion of the
implications of this style of fault movement at Yucca Mountain is lacking 1n
the final E.^.

Comment 4

ryc'Ct'g— :a I Activity - (Jraft i.» '■'3:"3r Ccmnent 2)

Gu'da'i:-e o-: Tectonics (10 C.=R 960. --2-7) (o). (CKD

NRC major comment 2 on the draft E.^ for Yucca Mountain raised the conce-n that
the mean prcoability estimate for disruption of the repository oy Igneous or
tectonic activity was not suoocrted by the Information provided in the draft
t^. Tnat procaoility for'?9C muc." of tne basis in the draft E.'^ for tr.e
conclusion that there is lass tr.an one cnance in 10,000 ove"" t.ie next 10,000
years of igneous activity or tectonic processes leading to release of

193

radlonucl ide
raised the c
associated w
Examination
suggests tha
Mountain In
exceeding on
6-253). Hov,
t.~e potentla
waste paclt.ag
Volumes I an
C.5.7, pages

s to

'.e ac:

oncern tnat
ith volcanic
of the final
t the probab
the next 10,
e chance In
ever, the po
1 for such a
e corrosion
d II and Is
CS-il and

sssible en
the potent
acti v1 ty ,
£A Indlca
11 Ity of 0
000 years
10. COO (f1
entlal fo
c t -. V 1 ty to
and waste
Inadequate
C.5-12.

vi ron.'Tient. In addtlon, NRC najcr c
ial for hycrotnerrTial activity, wnicn

was not considered in the draft EA.
tes recognition of current Infornatio
ccurrence of a volcanic event at Yucc
could conservatively be estinated as
nal EA, Section 6.3.1.7.3, pages 6-25
r associated hydrothemal activity an

create new flow patns and adversely
forn dissolution is not addressed in
ly acdressed in final E^ Volume III,

:r,.Ten:
1 s oi

:en

which

and

hence

ff act

inal EA

action

Final EA Volume III, Section C.5.7 states that hydrothermal activity is thought
to be an "unimportant contributor" to recant volcanic events near and at Yucca
Mountain and further states that "should studies conducted during site
characterization alter this perception, these processes will be considered."
These comments indicate that hyorothermal activity is not recognized as a
pnenomenon needing study early in site characterization and overlook several
lines of evidence suggesting that hyorothermal activity may have been present
In the vicinity of Yucca Mountain during the Quaternary (Swadley et al . , 1984.)
and may still be a factor In the area. Evidence suggesting hydrothermal
activity Includes: elevated water temperatures In drill holes near Yucca
Mountain (draft EA, page 3-22; final EA, Section 3.2.4.1, page 3-23; Sass et
al . , 1980; Szabo and Kyser, 1933; Carr, 1932); hydrothermal alteration In roc<s
underlying the Paintbrush Tuff (draft EA, pages 6-216 and 6-217; final EA,
Section 6.3.1.6.2, page 6-254 and Section 6.3.1.6.4, page 6-255); and
calci te-sll ica vein deposits exposed in trenches CFl (Swadley and Hoover, 1983)
and 14 (DOE, 1986). If the latter are shown to be hydrothermal, they may
indicate relatively recent upward movement of hydrothermal solutions. In
accition, In the Wanmonie area, approximately 25 km east of Yucca Mountain, a
subsurface granite mass was eliminated as a potential repository based, in
pa'-t, on the presence of hydrothermal alteration and a spring deposit at that
site (araft EA, page 2-14; final EA, page 2-14; Twenhofel , 1979).

Hydrothermal activity at the proposed Yucca Mountain reoository site and the
accompanying uowarc movement of heated waters could adversely affect waste
isolation caoaoi'lties of t.-.e repository by opening .lew pat.-^ways for
g-curcwate- and t.ne accompanying -adionud "ces to 'each t.-e accessible
environment. The effects of the heatea waters or vapors could also acve-saly
affect performance of the waste package by significantly Increasing cor-osion
rates of the waste package and dissolution rates of the waste form, resulting
In more rapio waste package failure and in release of large amounts of
radionuclides to t.-e accessible environment earlier than calc-jiated in the
final EA.

194

CcTrrent 5

Natural Resources Data Relevant tj t^ie Evaluation - fOraft: £A OetaHed
C:~trent 6~9'*)

Guiijelines en Human Inte-'erence 10 CFR 960.^-2-3 and Natural Resources IG CrR
S50.A-2-3-IfD)(I), (c)(1). (c)(^). (a)(2) ~

NRC staff detailed ccitrent S-9i on the draft EA for Yucca ."fountain raised
concerns that tne analysis of historical mining and proscecting in the area of
Yucca Mountain is not sufficient to assess economic potential inasmuch as
natural resource exploration has been banned within the Nevada Test Site for
over 30 years. Examination of the final EA indicates that several references
have been added (Section 6.3.1.3.2, page 6-281, first paragrapn; page 6-225,
first paragraph; page 6-237, second paragraph) to show wha^ worlt. has been
concucted at the .Nevaaa Test Site in the past 30 years; however, arguments in
suopon: of the conclusion that "Yucca Mountain has no energy or mineral
resources for whicn eccncnic extraction is potentially feasible in the
foreseeaole future" (final EA, Section 6.3.1.8.4, page 6-238) do not recognize
the direct knowledge currently available about natural resources at Yucca
Mountain and overloolc various inairect lines of evidence suggesting that there
may be significant economic natural resource potential there. The NRC staff is
concerned that the final EA does not recognize that the limited data base
currently available permits alternate interpretations of the possibility of
economically mo-ivated postclosure human-interference activities that could
acversely affect the isolation capabilities of the Yucca Mountain site.

None of the new references presented in the final E'V support the conclusions
cited in the preceding paragraph, although final EA Volume III, Section
C.4.1.1, page C.4-7 and Section C.5.8, page C5-49 state that for natural
resources "cores and cuttings... are routinely analyzed by geochemical
netncds...; no mineralization has been found of economic importance;" and that
"field exploration and geologic maocing were conducted." To the NRC staff's
knowlecge no geoc."emical or geoohysical data sufficient to celineata anomalies
have been presented in reports on Yucca Mountain and vicinity. Conclusions
relatea to mineral potential at the Yucca Mountain site are based on the
stucies of Sell and Larson (1932) and analyses of drill hole cata presented in
''aicoraso anc Koet.ie- (1533) anc Soengler and others (1931) (final EA, Section
3.Z.-. sage 3-Z3). The contents of t.-.e rercrts :y Malconacc anc :<cet.-.e- (1953)
a-c Soengle"- and ct.-e-s (1931) suggest those stucies we-e concuctec to
cetermme tne structure, stratigraony , ana petrcgraonic features of local
Te'tiary volcanics and not necessarily for tne purpose of resource assessment.
Studies to assess natural resources snould induce assays, trace element
analysis, anc gaopnysical exploration metnoCs. Surficial maoping, while of
pri.Tiary importance, is not sufficient to delineate "hidcen" mineral ceposits
anc must be co.-noinad witn cetailec geoc-emi stry anc geocr.ysics.

Voiu.Te III, Section C.5.S, page C.5-50 of t.-.e final E.A cites Mcitee (1973) as
indicating tnat "z" 9s .lining distr*ct; in Nevaca with SI .-aillion or mere
o'ccucticn of go';, s"'ve', cc:;e', leac, Z'nc. -e-'cu-y, ant'-cry anc i'cn,
only 2 are »it-i- :a'ce-as, a.-c c-"y 5 are in silicic tuf's 'e'atac to

195

calieras" and that "93 pe'-cent of all the major me-.al -nining districts In the
state are in roc)<.s other than silicic tuff." These statements ^•ere used in the
final EA (page C.5-:Q) to justify a negative correlation between calderas and
ore deposits in Nevada. Of the five districts In tuffs Identified by McKee
(1979) It 1$ Important to note that three of the five (Divide. Goldfield, and
Bullfrog) are within approximately 90 miles of Yucca Mountain and at one'
(Bullfrog, approx imataly 22 miles from the site) ores are associated with two
lithologic units wnich a-e also present at the Yucca Mountain site, na.Tiely the
Paintsrusn and Tir.cer Mountain Tuffs (Christiansen and others, 1977; Mc.<ee,
1979). Many ore deposits in Nevada in addition to those cited by Mc.<ee (1975)
are associated witn andesltic and rnyolitic tuffs. These include the Santa Fe,
Rawmca. Eorealis, Ivanhoe. Sixteen-to-One (Lowe and others, 1935) and two
recant discoveries. Hog Ranch and Paradise Pealc (Rooert Schafer. Silllton
Exploration, Pers. Comm.; Thcmason, 1936). Therefore, although a significant
correlation between mining districts and calderas cannot yet be demonstrated, a
correlation can be shown between volcanic rocl^s. specifically silicic tuffs
including units present at Yucca Mountain, and ore ceposits in Nevada.

Yucca Mountain, due to Its proximity to known mining districts (Bullfrog. 22
miles west; Bare Mountain, 10 miles nortnwest; Lee. 9 miles soutnwest;
Amargosa, 6 miles southwest; Wahmonie. 12 miles east; and Mine Mountain. IS
miles northeast, (page 6-235. final EA)) could be interpreted as a possible
exploration target. Of these mining districts, the Bare Mountain and Amargosa
are still active and the Wahmonie and Mine Mountain are located within the
Nevaaa Test Site. Reports on the Wanmonie area suggest that site may still be
an "attractive" exploration target (Smith and others, 1983; Ponce. 1981; Hoover
and others. 1982). Smith and others (1933) suggest that areas within the
Bullfrog district may have bulk mineable gold potential. The Sterling Mine, in
the Bare Mountain district and approximately 9 miles from Yucca Mountain, is
currently in production with calculated gold reserves totaling S12 millon
dollars (S350.0O oz. gold) (Smith and others. 1983; Lowe and others. 1985).
Carr and Parrish (1985) suggest that Crater Flat may represent a caldera. If
Cratar Flat is a caldera, the Sterling Mine on the west side of Crater Flat nay
be located along a calcera rim suggesting that the potential for exploitaole
resources may also exist along the western flank of Yucca Mountain along what
would be tne eastern rim of the suggested Crater Flat caldera. Perceived
potential, as well as known resourcas, should be assessed to ceter-nine the
C'ccac'lity of oost-closure. hu.'^an inta'farence on or near the proposed Yucca
yz:—.i:n s:ta.

New tac-.T'cues, cocels and methods for exploration ir.c miring have evolved in
the past 3C years since natural resource exploration was banned at the Nevaca
Test Site. For instance, the concept of bulk mineable gold ceposits only began
1n the early 196Q's with the discovery of tne Carlin Mine. Also, tne
suggestion that an area has no economic potential if there exists no previous
history of successful mining can be s.iowr to be without merit. The recent
large gold discovery at Hog Rarc.n in nort.iwestern Nevaca is ^ocatea in an a-ea
wit.T no nearay precious metal occur-encas. In order to estaolisn or conduce

196

tha* in area is barren of exploitable econc.-nic iesosits, detailed studies
Incorporating new techniques, models and methods would need to be conducted.

Many economic mineral deposits In Nevada are hydrothemal In origin with ore
placement controlled by fault zones (Lowe and others, 1985). Possible
hydrotnermal deposits (NRC, 1934; DOE. 1986) have been recognized in fault
zones at or near Yucca Mountain. Additionally, the proposed site Is bounded on
t.-^e west by the large Solltario Canyon fault wnlch is characterized by a wide
zo.-ie of nigniy brecciated roct. The ore at the Sterling Mine (east side of
Bare Mountain) is located in breccia zones along a thrust fault and rocl<.s which
uncerlie the ore zone are silicified from hydrot.ier::;al fluids (Smith and
others, 1983). Ereccia zones within faults provide excellent conduits for ore
placsnent by hydrothernal processes suggesting tnat the Solltario Canyon fault
and other faults at or near the Yucca Mountain site should be thoroug.ily
explored. The potential for undiscovered resources exists in these fault and
possible hycrcthe-::;al zones. These geologic characteristics of the area at
Yucca Mountain (Tertiary volcanics, possible hyarothermal , faults), talcen in
co.Tioination with the previously mentioned proximity to areas of economic
resoures and tne aforementioned lithologic and structural similarities of the
Yucca Mountain area to areas hosting known mineral deposits, indicate a
potential for undiscovered natural resources.

Comment 6

Radionuclide Transport Increase Due to Changes in Geohydrologic and Climatic
CcnQTfons - (Draft E.^ Major Comment 3)

Guidelines on Geonydroloay 10 CFR 960 .4-2-l(c)( 1) and Climate Changes
IC ZrR 940.4-2-'^(c)(2)

In the NRC staff major comments on the araft EA for Yucca Mountain it was noted
that althougn grouncwater velocities may be substantially Increased as a result
of plausible future cnanges In geonydrology and climate, the significance of
these cp.anges relative to Increased radionuclide transport was dismissed
because of t.-ie Implied ability of geoc.iemical retardation to limit radionuclide
transoort to tne accasslble envi ror:::ent. The concern was raised that because
tre ability of t.~.e geoc.Te.mical system to e"fect sufficient retarc3t:on is
-.-.cniy uncartain, it is not reasonable to assume significant increases in
racionucl ide transocrt to t.ne access^t'e environment Que to cnanges in climate
or geonydrologic concitlons will not occur at ''ucca Mountain solely as a result
of retardation. Examination of the final £A incicates that while increased
flux and rec.-.arge during pluvial conditions is acknowledged and discussed
thorougnly (Section 6.3.1.1.4, pages 6-1*1 to 142; Section 5.3.1.4.3, paces
6-233 to 6-Z39). t.-^e conclusion tnat geocr^emical retardation will limit
ricionucl ide transocrt to tne accessiale environment to an extent that t.-.ere
wou:d be no significant increase In transoort of radionuclides to the
accessible environment Is maintained (Section 6.3.1.4.4, pace 5-242) witnout
incication that t.ne'? nas been a re-eva'.uaf.on in light of t.-at discussion.

197

Neither the guiiielines nor tne final E.^ presents a Quantitative (definition for
the tern "significant." Hcwever, a change in flux of less than one crier of
magnitude — plausible based upon final EA estimates that recharge rate at Yucca
Mountain could increase by a factor of 15 over modern rates (final £A, Section
5.3.1.1.4, page 6-142)--can affect calculated velocity by more than one order
of magnitude. Therefore, the NRC staff considers plausible future changes in
climate and geohydrology as significant. This, coupled with existing ana
un-esolvec uncertainty In retarcation (particularly the ccntribution of .matrix
cif fusion: refsr to Ccc.ient 8) leads tne NRC staff to conclude that the
concern expressed in the original major comment is still valid.

Comment 7

Groundwate'' Travel Ti.-ne - (Draft EA Major Comment 3)

Guidelines on Geohydrolocy 10 CFR 960.'t-2-l(d^ . (b)(1) and (b)(5)(1i1)

In the NRC staff major com.-Tients on the draft EA for Yucca Mountain It was noted
that because of a series of technical concerns identified during the review,
DOE's confidence in calculated groundwater travel time, which was used with
regard to findings concerning tne disqualifying condition of ICOO years
groundwater travel time and the favoraole condition of greater than IQ.OGC
years groundwater travel time, was questioned. Many assumotions, hypotheses,
and approaches used in the analysis did not incorporate uncertainties
associated with available data. For example, the possibility of fracture flow
was not factored into the calculations; plausible alternative conceptual models
of water migration through the unsaturated zone were not included in the
analysis; and single values for key hydrologic parameters in the calculations
were used rather than a range of values. In addition, 1t was noted that the
conclusion that a geologic unit which would divert downward Infiltration of
water beyond the limits of emplaced waste is present was not supportec
acecuately by Information presented. Therefore, it was recommenaed that
existing field and laooratory data and experiments. Including those concerned
wit.n spatial and temporal variability of the hycrologic system at Yucca
Mountain, as well as otner sources of uncertainty, be considered in revised
assess~eits of the grouncwatar travel time.

E.xa.ii nation of t.ie final E.^ incicates t.iat t.-.e original conclusion concerning
Cive'sion of downwarc infiltration away from the Duried waste is no longer
naintainec (final E.^. paga 5-133, jrd paragraon), because of a current lac!< of
conclusively suoporting information.

Further review of the final E.^ incicates that the analysis for groundwater
trave' time has been revisec significantly in an attemct to incoroorate
uncertainties icentifiec in t.ne NRC staff major coTment on t.ne draft c.^ (NRC
-lajor co~nent 3 in Hycrogeol ocy ) . For examole. ranges in values for some
hycrogeclcgi c cara.mete's are considered (final E.'^, Tacle 5-13) as well as tne
;cs5i:ility of fracture -'"ow. However, t.-.e NRC staff has conce— ,s with t.-e

198

rjviseC assess~e.nt fcr grcuntlwaier travel tine in the areas or input iata to
tne nccel and the subsequent statistical analyses. A brief description of
specific proolems that bear uoon the findings in the final E.A is given below.

1 . UrcErtaintJes affecting groundwater travel times — general:

Tne computational procedures used In tne final EA to generate a frequency
distribution for predicted groundwater travel times can incorporate only
tne estimated uncertainties in t.iose parameters input to the mccel as
random variables. Uncertainties in those parameters treated as constants,
uncertainty about the defensibi 1 i ty of the conceptual model, uncertainty
apcut tne validity of the boundary conditions, and uncertainty about some
of t.na assumptions used in the mathematical flew modal are not
accommocatec in the analysis which generated tne frequency distribution
for predicted groundwater travel times.

2. Urce-tai nties with oaramete'-s input to model as random variables:
Prooaoility di strioutions were estimated for hycrogeologic parameters
treated- as random variables (saturated matrix conductivity, porosity) by
using subjective judgment and the results of tests on core specimens.
However, the specific types of input distributions used to characterize
tne ranaom variables are not listed 1n the final EA. This information may
be contained In a supporting document cited in the final EA as Sinnock and
others (19S6), whicn was not available to NRC staff during review of the
final EA. The NRC assumes, based on the range of data presented in Ta::le
6-18, that the saturated hydraulic conductivity of the rocSc matrix was
considered in the analysis to be lognormally distributed and that the
porosity of the matrix was considered to be distributed in some type of
symmetrical fashion (probably as a normal or uniform distribution). The
NRC cannot evaluate these assumptions or considerations without listings
of testing results and written documentation to support the parameter
means and standard deviations reported in Table 6-13. There is also some
confusion with the use or presentation of median and mean values of
hydraulic conductivity in Table 6-18 (the given equation calculates median
saturated hydraulic conductivity, but the results are given as mean
saturated hydraulic conductivities), which may adversely affect use of
data or interpretation of results for groundwater travel time.

2 . '-'••C5''t3i •'ti es Recard'ng Ve-t'ca1 '^cve'^e''t c' Grouncwate'":

G'O'.rodter travel time va'iues are cr't:ci iy cere'cent on wnethe" T,it-:x
flow or fracture flow will ccm:nata frz::^ t.-.e rsoosltory to t.-^e >atar
ta:le; that in turn depends primarily on three factc-s: (1) t.~e vertical
flux of water Infiltrating from the repository to t."^9 water taole,
including the possibility of concentration of t.ne flow along certain
patnways; (2) the saturatec hydraulic conductivity cf tne roc'n; and (2)
t.-e fraction of saturation at wnich flew charges from matrix to fracture
flow. These tnrea factors are elacorated upo.-i below.

199

c./^ wiic i_.<vjiv.c vj > w.iij value a) ait up^ci uuuiiu was ^vjii^iucreu wu Uc

Inacequately supported and the suggestion was made that higher values te
consice-ed. In t.-e final £A tnis value has been reduced to a constant
value of 0.5 m:n/yr (final EA, pages 6-150 to 5-153), a value supported by
Wilson (19S5), wno uses two sources of information to arrive at this
nunce': 1) data from in situ level of saturation values comoined with
caoillary pressure-saturation data from Peters (1934); and 2) data fron an
empirical method of cete-mining tne ratio between recharge and
precipitation rates in arid regimes.

The first of these methods apoears to be reasonable, but the NRC is not
able to verify indeoendently the 0.5 mm/yr as a "conservative" upoer bound
because no otner data are available. The second method, which also seems
reasonable, suggests a wide range of possible recharge values at the Yucca
Mountain site of between 0.45 and 1.5 mm/yr, which does not appear to
support robustly the estimate of 0.5 mm/yr presented in the final EA. The
NRC staff concludes that the uncertainty in the values of flux has not
been adequately considered in the analysis of groundwater travel time.

The importance of taking into account uncertainties In flux values is
emohasized by considering how a small change in flux affects groundwater
travel times at Yucca Mountain. If tne value of flux Is less than the
matrix saturated conductivity in the Topopah Spring unit, it is assumed
that flow does not occur in the fractures, thereby resulting in a large
(greater than 40,000 year) groundwater travel time. Conversely, if flux
exceeds the saturated matrix conductivity In all rock, units between the
repository and the water table, fracture flow may result in relatively
short grouncwater travel times (less than ICCO years). As a specific
examole, if the flux is assumed to oe 0.67 mm/yr rather than 0.5 mm/yr,
then more tnan half of the model elements in the Topopah Spring welded
unit would be expected to exoerienca fracture flow, and tne overall
credictad groundwater travel ti.r.es .<cuid :e cec-aased corsida'arly by t.-^is
ve-y slig.-.t i.-.creasa 'in flux.

Another point related to uncartai -.ties in flux values is that calculatac
groundwater travel tine distributions are basea on a one-simensicnal
codel , restricted to the vertical dimension. All infiltration is assu.-Tied
to occur uniformly across tne vertical cslumn. This dees not allow for
tne possibility that there are prefarsntial paths along whicT flow couls
corcantrata. Phenomena sucn as "fingering" nave beei case-ved to occur in
unsaturatec porous .Tiecia, leaciig to .-ucn fasta- movement of wata- in t.-e
vertical direction t.-an would :e indicated ay uniform inf i " traticn. zii'\
a sHgnt concaitration of Infiltration coulc signi ficant'y '»c-ca
crouncwate'- travel t:re, because of its g-ait sensitivity to 'lux. Ir
t.".is casa, s:atial uri-;'-i:ty i- t-e latara' c^ract'o.n is t.ia -est
cct'mistic assu.nction.

200

Saturated Hydraulic Conductivity

The NRC agrees 1n principle with the analysis of saturated hydraulic
conductivity for matrix and fracture flow (final EA, pages 6-153 to
6-162). However, It must be recognized that the wide variation in
saturated hydraulic conductivity values (0.03 to 14.2 m.-n/yr) reported by
Peters et al., (1904) indicates that there may be significant zones in the
Tooopah Soring uni; wnere the matrix saturated hydraulic concuctivity is
less than 0.5 mm/year. If such values occur throughout the entire ceptn
of the unit, fracture flow could occur at flux values less than 0.5
mm/year thereby producing groundwater travel times of substantially less
than lOOG years in certain areas of the Topocah Spring unit. Therefore,
the possible spatial variability of saturated hydraulic conductivity must
be adequately considered in comoination with the uncertainty in the
assumed value of flux in tne analysis.

Transition between Matrix and Fracture Flow

The analysis in the final E,^ assumes that fracture flow is initiated when
flux exceeds 95 percent of the saturated hydraulic conductivity of the
rock matrix (final EA, page 6-133, last paragraph), but no rationale for
this assumption is provided. The NRC is concerned about the justi f icaticn
for the use of this 95 percent value; furthermore, it is even more
concerned that no sensitivity calculations were conducted (or at least
none were reported) that would reveal the extent of the influence of
choosing this percentage on the distribution of predicted groundwater
travel times. Conceivably, this percentage could have been treated as a
random variable in order to provide an analysis of uncertainty in the
identification of the transition point from matrix flow to fracture flow.

Uncertainties related to intercorrelatlon of hydroqeolocic orooerties:
Hycrogeologic properties suc.t as hycraunc concuctivity ana porosity are
exoected to be correlated; e.g., if porosity is larger, hyCraulic
conductivity is likely to be larger, all other things being equal. In
acdition, hydrogeologic properties are expected to be correlated
soatially; e.g., measurements taken In close proximity are likely to be
.lore similar tnan measurements seoa'atec by a large cista.'ice.
Ir^s'CO're" ati ens letween hycogeolcgic p'coe'ties we-e net stud^ec, -jva"-
uatec, or used in the analysis of pracictac grcuncwater t-ivai ti.-e. lata
sufficient for tr.ese more complicatec stucies may not exist; however, an
effort to describe, at least susjecti vely , t.-.a prooaale intercorre'ations
anc soatial correlations among tne hydrcceologic parameters could have

been made. By so

•.J, the potential effects of these correlations and

intercorrelations on grouncwater travel time precicticns could nave oeen
evaluate'!. This mig.-t be esoeciaily imsortant in the case of tne vertical
soatial correlation of saturates nycraulic concuctivity, siscussec furt.-e-
in tne following section (.?5).

201

Uncer'a' nri gs in net^-^ogs or" anaTy:iPc grjungwa'.er travel ti.Ties:
Tne analysis of gpouncwaier travel f.me in tne final cA reliea on a medal,
Method 1, In which the vertical layer spacing was 10 ft (final £A, page
6-153, third paragraph). The final EA also presents a second analysis for
groundwater travel time. Method 2, (final EA, page 6-160, last paragrapn)
in wnicn eaci hycrogeolcgic unit (some of which are hundreds of feet
thic)^) represents one layer. The claim Is made that Metnoc 2 Is more
conservative than Method 1 because "as more physical realism is introduced
into the travel time mocel , the range of travel times is likely to be
compressed. Moving from Method 2 to Method 1 clearly has the effect of
removing the low probability, extreme values In the taili of the frequency
distribution of t-avel tines from the disturbed zone to the water table"
(final EA, page 6-152, third paragraph). The final EA concludes that
Method 2 gives a more conservative groundwater travel time for small
percentiles of the cumulative distribution function (-CDF). On the other
hand, Method 1, which is supposedly more realistic, suggests that there is
only a low probability that the groundwater travel time is less than
10,000 years.

These conclusions reached on the comparison of the results of Methods 1
and 2 in the final EA (Figure 6-9, page 163) are questionaole. The stated
increase in realism of Metnod 1 over Method 2 Is probably a mathematical
artifact. It can be demonstrated that as the layer thicl^ness is
diminished (as it Is in Method 1 vis-a-vis Method 2), and if the
properties of the layers remain spatially uncorrelated (as they are in
Method 1), the groundwater travel time woula approach a constant for each
vertical column. Given this artificially-induced comoressive effect.
Method 2 is in fact more likely to encompass the correct distribution than
Method 1.

Uncertainties in use of simulated groundwater travel time distributions:
Tne NRC staff is concerned with now the distrioution of grcunawater travel
time was used to evaluate the conclusions regarding travel times in the
final Ln. The conclusions were based on central tendencies (mean and
median) of tne simulated grounawater travel time distribution. Analyses
using percentile criteria smaller than the mean or median would more
prooerly reflect the hign degree of uncertainty present in t.':e grouncwate'*
travel time ai stributton.

In succort of the analyses leading to g'ouncwatar travel times in excess
of 10.000 years, tne final EA states (page 6-131, seco.-c parag-aoh) t.-at
"the extreme upper anc lower portions of the travel time distribution are
c.iaractari Stic of travel times along unlikely pat.TS o: racionuclide
travel, anc t-er»'or», inappropriate for evaluating tnis favoraole
condition (IQ.CCO year grouncwatar travel ti.Te). The uCE considers t.-.is
Jucgment to re consistent wit.i the NRC staff position regarding t.-ie
g— juncwata- travel time reculrement in 10 C'S Part 60 (Erowning, lSc3)."
Alt.-.ougn t.'e NSC coes a."tic:3ate excluding tne extreries of t.-e
distribution of possible g-ouncwatar travel ti.mas in ceta'-iin:ng wret.-.e-

202

the pe'-forsanca objective has been net, excluciing the tails (extremes) of
a distribution Is not equivalent to a choice of the mean or median as the
measure of the groundwater travel time. This Is particularly so for
Initial screening prior to site characterization, where attempting to
reach conclusions about "likely" and "unlikely" flow paths 1s speculation
at best. Indeed, eliminating the tails of the groundwater travel time
distribution virtually requires Ignoring the unce-tainty that the analyses
we-e intsnced to incorporate. In acdition, tne mean or itedian may be
particularly poor choices of a criterion for the groundwater travel time
distribution because of their relative insensi ti vi ty to modeling
assumptions such as sampling methods and spatial correlations. The
meaning of the NRC statement (Browning, 1935) that refers to excluding
extremes is simply that the NRC might consider the performance objective
to be met even If some small portion of the distribution was less than the
time criterion (e.g., 1000 years), assuming the conceptual model and other
ceterfnining factors behind the distribution itself are defensible.

Comment 3

Retardation of Radionuclides

Guideline on Geochemistry (10 C"R 950. 4-2-2): (b) Favorable Conditions 2. 5

In the NRC staff major comment 6 on the draft EA for Yucca Mountain, the
concern was raised that the retardation factors used In determining
radionuclide releases were inappropriately large in assessing the effectiveness
of geocnemical processes affecting radionuclide retardation. In the final EA
two mecr.ani sms--matrix diffusion and sorption — are described which, if
operative in the repository system, would diminish radionuclide releases to the
accessible environment. In response to the NRC major comment on the draft EA,
new evidence is oresented in the final EA to suooort the position that ma-rix
diffusion and sorption will play an important role In controlling radionuclide
release. However, the NRC staff considers tnat tne new evidence inaceouately
suooorts the conclusion that retardation of several key actinides by these
mecnanisms will occur.

Aeta-cition of rac'cnucl ices ;y maf'x z''ff\is'zn -In t.te fract-red rcc< of Vucca

u.'

:ain is cascrizac in t.-.e final EA (Section £.3.1.2.3.(2), page 5-177) and

suooortec by the final EA reference (Travis et al . , 1934). In tnis reference
it is s.iown that in a fractured rock witn low matrix permeability and
irterconnectea seres, retardation factors can be as large as 400 for nonsorbing
soacies arc several thousand for soroing species wnen these species are in
solution, rrzn •-& cescricticn in Travis et al . (1934) the fractured rock
stucied may ce analogous to the re^erenca recository host rock, t.-ie Tcoooah
Soring "^emcer. However, the scanar-o descricaa in tnis reference does not
consider hew racionuc'ida 'elease would be affectad if t.ne racicnucl ices wars
present as colloids or osfe'jdocol loics rat.-^e- t.-.an dissolved species, cisac on
t.'e c:-oariscn of i.rci v:d'_al *adicnuclide invantor'es ve''sus tneir ErA limits

203

at lOCQ years, l^-e important radionuc ; idas of nuc'.ear wasta tr^ actinices
(Ka-rislt, 1925). The actinldes, wnen leaclied from a glass waste for-n, are
expected to occur as colloids (final £A, Section 6.3.1.2.3.(2), page 6-139);
therefore, the effect of colloids on matrix diffusion In fractured roc'<s needs
to be considered when evaluating how much credit can be taicen for retardation
by tni s mechani sm.

The final E.^ dees describe how radioed ioids can contribute to retardation in
roc)ts in which porous flow will occur, such as tne unsaturated tufraceous bais
of t.-^a Calico Hills unit, by being mechanically filtared from the flowing
liquid (Section 5.3.1.2.3.(2), page 6-191). The final EA proposes that
mecnanical filtration will occur because some of the colloids will be bigger
tnan some of the pores through which the fluid is flowing. However, if
colloids are present in the fluids flowing through fractured rock, two
scenarios are possible that could lessen the effectiveness of matrix diffusion
for retardi.ng radionuclide transport;

1. Colloids, which can range in size uo to 10 um (Stumm and Morgan, 1931),
might be too large to pass into t.ie pores of t.ie matrix. In such cases,
colloids would remain in the fluid flowing In the fractures and
retardation would be decreased.

2. Colloids, partly because of their large size, can have diffusi vi ties
several orders of magnitude lower than those of dissolved ions in water
('//east, 1971). Therefore, compared to Ions, large particles such as
colloids will have much less tendency to diffuse Into the matrix (Cathles
et al., 1974).

In the final EA, sorption Is the second mechanism given credit for retarding
the release of radionuclides from the repository. In response to the NRC major
draft EA comment regarding sorption, the final EA refers to new data from
Rundberg (1935) which suggests that for simple cations (Sr, Cs, and Ba)
sorption parametars deterriined from batch tests using crushed solids are in
gooc agreement with sorption parameters obtained from corresponding tests with
intact solids. The NRC staff finds this information unconvincing for the
following reasons:

1. Ac::rci-ig to KerrisK (1925), t.-te •rnpor-ant rac-'ciucl icas in nuc'aar wc3■^
a-e not t.".e s'.mpie cations 1 i stac accve but instaac are t.-.e actin-ces sue.-: as
A.Ti, ?u, U, and Nc whicn can e.xist in •■nors t.ian one for-n (simple ions, co.Tp'ax
ions, anc colloids) in groundwater. Nynan et al . (1935) present field evice-'ca
for multiple forms of actinides In groundwater below a llculd waste disposal
sita where significant Quantities of ?u and Am were mcoiHrec wnen water was
aliowec to flusn t.nroug.i the system. Kelmers (133-) cascribes how sorption
ca'2~eters frzm batch tests only average tne sorption of the multiple soecias
of a given raalonuc; ice. The sorption paraceter u."caresti.-ates tne amc-nt of
sc-ption for tne strongly sc-cac spec^as but ove-esti.r;atas t.-.e a.mcunt of
scrpticn fzr t.ne wealily screed species.

204

2. Rurcte'-g (1535) iaes not atierao'. to correlate between sorption para-eters
for actfnicjes cierived from tests using crushed and intact rock. In fact, he
states that for amerlcium and plutonium "the sorption mechanism Is not known
nor is the chemical form of plutonium and a.-nericiura in neutral pH solutions
Itncwn with any certainty" (Rundberg, 1985, page 19). This implies that at this
time no meaningful correlation between the batcn experiments on crusned tuff in
the laboratory and the field situation with the intact tuff would be possible.

3. No correlation Is apoarent In Runcberg's experiments between t.-e a.r.ount of
actinide sorced a.*d the proportion of sorbents (:eolites and clays) in the
solids. Therefore, zeolites and clays have not bean shown to be effective
sorcers of Pu and Am.

4. Rundberg (1935) states that precipitation, which would yield an aoparent
sorption ratio, cannot be ruled out in i.ie batch measurements. If
precipitation instead of sorption has occurred In the batch test, retardation
is not proven. In such a case, concentration of a radionuclide soecies in the
solution woulc be limited by the soluollity of the radionucl ide-bearing solid
and insensitive to the presence of t.ie other solids in the substrate. For
example, if precipitation occurred in a batch test using a nonsorptive solid
and a radionucl ide-bearing solution, an "apparent sorption ratio" could be
determined. This "apparent sorptio.n ratio" could be erroneously inserted into
the equation for calculating the retardation factor. However, if the liquid
from the batch test was then decanted into a column containing the same
nonsorptive solid, the concentration would be below the solubility limit (i.e.,
no adaltional precipitation would occur) and the radionuclide would travel down
tne column as fast as the liquid (no retardation). Thus, if precipitation Is
not disprovea in a sorption test, credit cannot be taken for retardation of the
radionucl ice.

Given these concerns with the new information introduced In the final EA to
suooort the assessments of geocnemical factors affecting radionuclide
transcort, zr.s NRC staff is concerned that those assessments do not fully
recognize tne uncertainties 1n the data currently availaole.

Cc—e-t 9

'<asta -iz<c-= ^C5t-C';$ure ^e-'O'-a.-ce - (.-a't z.^ '-"ajor C:-:-e''t)

Guicel^-'es on gpst-C'csure 10 CFR 9oG.'i-l. ?60.'i-2-l(a) are 960.'i-2-2f a)

In the NRC major co.mment 10 on the draft EA for the Yucca Mountain site the
co.-:cern was raisec that the perfortsance analysis of the engi.ieered barrier
system was based on insufficiently supiortad assumotions ccncarni.ng waste
oac^age failure .-cces arc '■adionucl ice release rates and that t.-.e uncertainties
ass^ciatac wit.n t.".e assu.mpticns w"--* rot adequately conveyed. The co.mr.ent
sucgastac t.rat t.".a final E.^ consice- mere realistic assumptions In t.-.e
-o-a-ar.cs case oreliminary performance analysis anc provica a.n estimata o: t.ie

205

i":i3act of urc»-'.ai nt1es on the result of the analysis or rec:.-.s;car the s-r^^-ary
statements mafie In the draft EA. Exaninatlon of the final £A (Executive
Su.T.mary, Section 6.2, page 13, third paragraph; Section 6.4.2, pages 6-35-i to
6-3H8) indicates that some revisions have been made to Identify areas of
uncertainty which are to be addressed during site characterization (Sections
6.4.2.1.1, page 6-367, paragraph 3, and 6.4.2.2.2, page 6-37'l. first
paragraon); however, the consecuences of the current uncertainties on the
a.'.alyses of waste package lifetime anc radio.'^ucl ide release rate have not teen
accressed ana nence there is limited recognition that the current cata case
perT.its alternative analyses.

Although the final 5A may irply that the assumotions used to ra'«.e evaluations
regarcing the engineerea barrier system are the best estimate of realistic
conditions based on the current DOE data (Sections 5.4.2.2.1, page ^-372, first
full paragrapn, and 6.4.2.2.2, page 6-373, first paragraph), many of the
assumptions are currently unsubstantiated and the range of u.icartainties not
considered when malting the evaluations. For example, while it may be true that
corrosion testing performed for the last couple of years In a Yucca Mountain
simulated environment has not yet identified an operable corrosion mechanism
other than uniform attack (Section 6.4.2.1.1, page 6-369, continuing
paragraph), the historical susceptibility of the austenitic stainless steels to
stress-assisted cracking in chloride/oxygen/water (steam) environments raises
significant questions as to their long-term performance. Furthermore, based on
the recent test results contained in NURE'j/CR-4619, which Indicate evidence of
crack initiation for a range of simulated Yucca Mountain environments, the NRC
staff cannot at this time accept a 3000 year container Hfe as a realistic or
conservative value. Until the prediction of the waste package lifetime 1s
justified and the effects of Input parameter and mocel uncertainties are
accounted for, the possibility exists that the current analysis in the final EA
may greatly overestimate the waste package lifetime.

ThQ NRC Staff is also concerned that the efforts made in the text of the final
cA to more fully acknowleage the uncertainties In the analyses were not
reflected in the discussion contained In the Executive Summary. In fact, the
parenthetical sentence contained 1n the craft EA Executive Summary (op. c1t.):

"There is an issue as Jo the rate of cor-osion i.n t.ne unsitjratec
lore; it will be adcressad furtne"- C-r-rg site cnaracte'*" Zit'or.;"

e .w.W

was celeted in the final c.A, thereay stre'tgt.-enlng tne Implication tr.at
year ccntainsent lifetime is both realistic and conservative.

.';RC staff concerns regarding waste package performance modeling ana the effects
of incut parireters ana iTicdel unc9'"tainties on t.ie waste package lifetime
i-ecictions r'ave not Seen alleviated in t.ne revision of the cra't E.A. Tne .NRC
sta-f ccnsice-s trat .r.ajor zzrsitr\z 10 aop'ies to t.ie final LA.

206

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Cracking Tests on High-Level-Wasta Container Materials in Simulated Tuff
Repository Environments," USNRC Report MUREG/CR-ieig. June 1936.

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for tr.e Nevada Test Sits. Mye Ccjrty. Nevaca. NVC-2:C. Nevaca Goe-aticns
Office, U.S. Cepart.Tient of Ene'gy, Las Vegas, 67 p.

Ercwning, R.E., 1935. letter to R. Stein (CCE). June 12, 1985, regarding NRC
position on groundwater travel time.

Carr, W.J., 1982. Volcano - Tectonic History of Crater Flat. Scuthweste-n
Nevaca. as Sugcestec oy New Evica-ce frza Qr^]) Hole USW-7H-: arc V'c:ni-y,
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Carr, W.J., 1934. Recional Structural Setting of Yucca Mountain. Scut?iwesta'-n
Nevada, and Late Cen:oic Rates of Tectonic Activity m part of tre
Soutnweste-n Great Basin, Nevada and California, USGS-CFR 34-354, 109 p.

Carr, W. J., and L. D. Parrlsh, 1935. Geology of Drill Hole USW VH-2. and
Structure of Crater Flat. Southwestern Nevada, USGS-GFR a5-'i75, 41 p.

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Measure the Oiffusional Accessibility of Matrix Blocit Mineralization," in
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and K. A. Sargent, 1977. "Tlmoer Mountain - Oasis Valley Caldera Comolex of
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Fault-Related Calclte - Silica Deposits Near Yucta Mountain, April 23. 19S5.

rarcyman, ?..?., 1954, Strike-slip, ncr-ai and cetacnuent faults in t.-.e

nort.-e-- Gil lis Rarga, Walter Lire of 'West-Central Nevada; _i_r Harc>-an, r..?.,
Z'^n-) , E.5., and Prcffatt, J., 1934, Ta-tiary tectonics of west-certral
Nevada: Yer-ngton to Gaccs Valley: '<^est;— Geo'caical Exc-rsiors. v. 4, p.
134-199.

Healy. J.H.. S.H. Hickman, M.O. Zcsack, ardW.L. Ellis. 1954. Report on
Te'eviewer '.o* a"d Stress '^easure'^e^ts in Co-e ^ole L'S'W-G-1. '.'evaca ~est
Site Zece-Qj" 13-Z2. ".931. USGS-GFR £--15, 47 p.

207

Hoover, D. 3.. M. ?. Chornacl^, K. H. Nervici^, and M. M. archer. 1922.

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Site. Nevaca 'est Site. Nye Co.. Nevaca, USGS-GrR 32-465. 45 p.

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Waste," LA ICi'A ."iS.

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p. 539.

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to Ore Deposits In Nevada," Geological Society of America Special Pa:ar 130,
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Cutler.

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Trujillo, W. J. Her-erj, and J. W. Sooth, 1935, "Distribution of Plut:.-:!'-.:!
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G.W.. 1924, "Fracture a."^: .■Tiatrix hycroicgic c.-.aricterl sties of tuffacaous
materials frzz Yucca fountain, Nye County. Nevada," Sancia National
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Nevaca "est S'ta. Nv? ":u-tv. Nevaca. 'jSGS-j-^ 51-522. 53 o.

208

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A<isorption on Yucca Mountain Tuff," Los A)a::ios National Laboratory, Los
Alamos, NM.

Sass, J.H., A.H Lacnenbruch, and C.W. Mase. 1930. Analysis of Themal Data
From Drill Holes UE 2Sa-3 and UE 2Sa-l. Calico Hills anc Yucca Mo'jntain.
Nevaca Test S'te. USu3-0.=R HQ-3Z5, Open File Report, U.S. Geological
Survey, .''enlo ''a-<., CA. , 25 p.

Scott, R.3., 19S6. "Extensional Tectonics at Yucca Mountain, Southern Nevada,"
Geological Society of America Abstracts with Programs, v. 13, no. 5, p. 411.

Scott, R.3., and J. Eon'*., 1934. Preliminary Geolocic Mao of Yucca Mountain,
Nye County. Nevada with Geologic Sections, USGS-GFR 84-<i94, Scale 1:12,000.

Scott, R.B., and J.G. Rosenbaum, 1935. "Evidence of Rotation About a Vertical
Axis During Extension at Yucca Mountain, Nevada," EOS, v. 67, no. 15, p.

353.

Sinnock, S., Lin, Y.T. , and Tierney, M.S., 1986, Preliminary Estimates of
Groundwater Travel Time and Radionuclide Transport at the Yucca Mountain
Repository Site," Sandia National Laboratories, Albuquerque, NM, SANC35-2701.

Smith, P.L., J.V. Tingley, J.L. Bentz. L.J. Garside, K.G. Paoke, and J. Quada,
1S33. A Mineral Inventory of the Esmeralda - State! ine Resource Area.
Las Veaas District. Nevaca, Nevada Bureau of Mines and Geology, OFR 83-11.

Spengler, R.W., F.M. , Syers, Jr., and J. 3. Warner 1931. Stratlqraohy and

Structure of Volcanic Rocks in Drill Hole USW-Gl . Yucca Mountain. Mye County.
Nevada, USGS-GFR 31-i3'i9, 50 p.

Stock, J.M., J.H. Healy, S.H. Hickman, and M.Q. Zoback, 1985. "Hydraulic
Fracturing Stress Measurements at Yucca Mountain, Nevada and Relationship to
the Regional Stress Field," Journal of Geoonysical Research v. 90, no. 10,
p. S691-37C6.

Stu.mm, W. and J.J. Morgan, 19S1, Aeuatic Che-istry: An Int-oduction

E'cras'' :: nc C"'e~ica' E:-''ibria 'r Natwrai .<a': = ''S, Zr.c £c. , jonn w:ley. p
5-7 .

S-acley, W.C. and O.L. Hoover, 1533. Geolccy ;•" "aults E.xccsed in Tre'-c-es
in Crate- Flat. Nye County. NV. USGS-OFR 33-503, U.S. Geological Survey,
Denver, CO, 15 p.

Swacley, W.C. D.L. Hoover, a.id J.N. Rosnolt. 193-1. o-e'imira'-y Re:;r:
Lata

.ata Cano::'c -a'.'f'c a-c Stratioraary in t.'e Vic'nitv of '^ucca "curta'i.
^ye County. NV. CSG5-C.-.R 3^-735, U.S. Geo'.ogical Su'vey, Cenve'. CO, -2 p.

209

SlJlO, 3. J., ar.S 7 . ■< . <y$ar,

U'3'

I rcr

, sc;

■ c -Vralyses i~c

;$C-.C3iC

Uraniu.Ti - Se^'js Aces o'" Ca'c'te arg Ccal. are S'ioi

Ccic3Sitic.-$ or Caic'".? --en 3r- i 1 Ccrgs Uc Zli='.. 'jS< G-Z. j'C G-3/au-3 .

^ur:i

■j.-ita- •

'W . 'JiuJ wrn o:"

•, J.S. oeoicg-Cii S'.rwsy , Cenve- ZZ . Z: 3.

Trcmascn, 3.£., 19S6. "Geology or" the Pa'adise Pea< Ore Ceposi-.," Geolog-ca:
Scc'ety o: Nevaca, May, 19E6, Meefig Announcere'^i.

"ravTj. 3. J., S.w. -ccscn, H.E. Nut'an, T.L. Zcc< arc S.S. nuncterg, 19;-.
3"o' JTiT rary :s'''nates 0'" '.s'ater -i;w and ^aaicrucHge T-anssor-: tt '^ucra
^c-nta' n . ^— jA-i'i-iO (Sev.), Los Aiamos Naticnai La:oratcry. Lcs Ala.-os, NM

Twennofel, W.S., 1979. litzsr fromW.S. Twennofel (USGS) to R.M. Nelson
(CCE.NVO), Apr:! 2^, 1979; regaraing technical findings on so'Jtnwest
C'jacrancle, 5 p.

U.S.G.S.. 19S4. A Suffinary of Geologic Studies Thrcjch Jaruary 1. 1933. q- a
Potential ricn-Levei RaciGact:ve Waste .Reoosit:ry S:te at Yucca Younta-n.

Soutne-n Ny;

•ty. Nevada. USG3-CrR 3'i-792, 13Z p.

Weast, R. C, 1971, Handbook of Chemistry and Physics. £lst Ed., The Cheiiical
.Ructer Cc.-:ioany, r-<i7 anc F-i99.

Wilson. W.W.. 1925, letts- to O.L. Vieth (CQE/NVO), Oecafnoer 2i, 1935,
regarding flux in the unsafjratad zone.

210

ATTAC3.HENT 2

NEVADA'S STATEMENT OP POSITION

RE: SHORTCOMINGS IN THE REPOSITORY PROGRAM

PRs::ErsR>'TNED ScLlCtton of sites

T^e selection of Yucca Mountain in the State of Nevada (as
well as Hanford in the State of Washington) , by the Depactnent of
Energy (DOE) foe site characterization was actually made long
prior to the passage of the Nuclear Waste Policy Act (NWPA) . The
Department's actions since passage of the NWPA have merely served
to confirm that predetermined selection. The site selection
process that the Act requires, which was designed by Congress to
insure objectivity and adherence to some technical criteria, has
been manipulated to insure that its predetermined choices would be
iraintained. Nevada has enunciated this concern to the DepartT.ent
on several occasions, most notably in Nevada's comments on the
Draft Environmental Assessment for Yucca Mountain. (Attachment 2-
A). The Department has not responded to these comments in any
meaningful manner.

The Department, in its Environmental Assessments (EA) , as
well as in public testimony before the Congress and other bodies
both before and subsequent to the issuance of the EAs, cites
diversity of roc!< type as its primary justification for the
selection of Yucca Mountain. That justification is, in the case

211

of Viicca Mountain,

entirely prete:

xtual. Otherwise, why was
granite not among the suite fron which th,
characterization was chosen?

e sites foi

'HE SITING GUIDELTMFq ARE FATarLY FLAWFn

The Depactnenfs site selection guidelines, the fundanental
vehicle which Congress intended to insure the ob:ectivity and
sound technical basis for site selection in the entire program,
are hopelessly flawed, and violate the fundamental standard
adopted by Congress in the Act. They are incapable of objective
application, but were rather designed to insure that none of the
current sites would be disqualified early, thus maintaining the
Department's predetermination in the selection of sit
characterization.

• tes for

In adopting the guidelines the Department ignored relevant

input from the states, tribes,

and other interested parties. The

guidelines themselves wholly ignore important areas, such
national transportation im
repositor les .

pacts, in the selection of the

Nevada's concerns on th-=; <;--H-io^- .-««» - ■

<i..io uii vn.5 Si.3]ec« went unnearc bv

the Department. They are summarized in Attachment 2-A. Thil

problem is the subject of litigation in epi y. u., ,.„.... ^^^.^.^

Circuit Cause No. 85-7854 and Consolidated Cases.

212

TH£?£ HAS g£"': VO ''E AM :^:G^•J:. C0'."S"LT^~'CV ^NC C0C?~?ATT0N WTTH TrZ

Despite Congress' intent, the repository prograri currently
being iniplemented by the Department has many o£ the
characteristics that foreshadowed problems from past efforts. The
program is driven by a schedule that is itself propelled by a
fixed and, some would argue, unrealistic target date. The
framework by which siting and suitability decisions will be made,
the siting guidelines, is overly general, lacking in specificity
and capable only of subjective application.

There has been a breakdown in the institutional system of
checks and balances that Congress so carefully wrought in the Act,
and the cause of this failure stems directly from DOE's inability
or unwillingness to understand the fundamental nature of the
state/federal relationship established by the Act. Nevada has
even repeatedly used the information-demand process contemplated
by Section 117(a) of the Act with very poor results. The
Department has chosen to pursue a project-oriented role with zeal.
However, at the same time, it has attempted, at nearly every turn,
to limit state involvement in order to thwart states' efforts to
carry out their cole under the Act. The Depart.-aent refuses to
recognize the oversight role of the states, which Congress found
so essential, including technical oversight, and refuses to
cooperate with, and adequately fund, that role. The Department

213

spoon-feed3 .nfor.at.on of ,.3 c.oa3:ng to the s...es and .::.es
and has consistently attempted to keep then at arns length. DOE

has prohibited the state? f'n-, af^a„^

states f.o.T, attending meetings, fron reviewmc

documents, and f.on any involvement in the dec: s lon-.a. in

process.

unless balance is restored to this critical relationsnip the
federal government will never be able to develoo the level of
public confidence essential to success in this controversial
undertaking.

THE ENVTRONMENTAr. A.^^P^<.Mr>;TS ARF TM.ncnr,.^.

The environmental assessments themselves, upon which the
Department's nomination and recommendation of sites for
Characterization are based, are themselves totally inadequate
under the Act. m the case of Yucca Mountain the EA is based on
incomplete, inaccurate, and sometimes manipulated data.
Significant State input to and comments upon the EA have been
totally ignored. (Attachment 2-A,. The ranking methodolocy
-pUed by the Department in selecting sites for characterization
IS Itself flawed, 'and has been clearly manipulated in order,
again, to justify the Depar t.-nent • s predetermined selection of
sites. This was confirmed by the Subcommittee on Enercv
conservation and Power, of the Com.mittee on Energy and Commerce
investigation reported on October 20. 1986. (Attachment 2-3).

214

One docunent uncovered by that investiqaticn showed that Vucca
Mountain had 994 expected fatalities in the post-closure period
whereas Davis Canyon, Utah had 32 and Deaf Smith, Texas 47. Yet
Yucca Mountain was rated first in the Departr.ent ' s preference.
(See Attachment 2-C) .

DISCONTINUANCE OF SECOND REPOSITORY FROOP.AM

In abandoning the second repository program, the Secretary of
Energy has violated not only the clear letter of the NWPA, but its
essential spirit as well. Fundamental to the passage of the Act
was the concept of regional equity. In its abandonment of the
second repository program, the Secretary has also abandoned this
concept altogether.

At various congressional hearings Department officials have
cited the lack of need for a second repository as the primary
rationale for this unilateral decision, which even the
Department's General Counsel now concedes to be illegal. The
Department's own internal documents show clearly, however, that
the decision to abandon the second repository search was based
primarily, if not exclusively, on political considerations.

FRE^fATU?E DET"?.>'INATICNS OF SITE SaiTABTLITV

215

rogecher w,,h the anr.our.cerr.enc of the select -o:

Character. zat.cn. on May 28, 1935, the Secretary also ..

-on o: Sites fc:

pceU..na.y de tec..na t .on that each of the s.tes cnoserias
suitable foe development as a cepos.tocy. th.s f.cthe. f.e^^
Nevada^s concecns that the Department is atte.pt.n, to .., the
selection process.

e NWPA, to insure

Congress intended, in Section 114(f) of th
that, at the end of the site characterization, OOE would have
three bona fide alternate sites froa which to select one for
development as a repository. Thus the requirement for the
secretary to certify that three sites were suitable for
development as a repository a_fter having been characterized (i e
studied in detail and at the repository depth). Congress was
concerned that, without such conditions, the Department mignt
select a preferred site for characterization, along with two less
suitable Sites, in order that its preferred site would be the only
Site available after characterization. m order to reduce the
li:<elihood that DO. would be able to choose a repository based on
political and other non-technical criteria. Congress clea-ly
-tended to provide for tnree real alternatives from wnicn to
Choose after testing and evaluation had been comcle^ec a

determination of suitability ..de prior to even the commencement
of Characterization simply serves to further convince the states
that the entire process of selecting a repository is being s.ewed
by the Department.

216

FU^'D!^!G STAT" pa?T:C:?ATTOH

In FY 1984, the Departaent denied Nevada's request for
funding to engage in independent technical monitoring and analysis
of the Yucca Mountain site. Nevada challenged DOE in the Ninth
Circuit Court of Appeals. The court determined that the State was
entitled to funding because of the "independent oversight role
that Congress envisioned for the states." Nevada v. Herrinqton,
775 F. 2d 529, 536 (1985). (Attachment 2-D) . Notwithstanding the
court's order, DOE procrastinated funding the requested activities
until after its May 23, 1986, announcement that Yucca Mountain
would be characterized.

Even now the Department has refused to evaluate and fund
Nevada's requests. Nevada's 1987 calendar year grant application
was submitted in early October 1986. As of January 14, 1987, the
Department had not evaluated the application sufficiently to
advise Nevada what additional information may be required. Nevada
new faces the likely possibility that the intended technical work
will be compromised. The only conclusion is that DOE does net
want anyone looking over its shoulder. Two relevant letters,
dated December 19 and December 29, 1986, are attached and describe
the current situation. (Attachments 2-E and 2-F).

ENVTHONMENTAL V.ONITO^ING

217

The Nuclear Waste Policv a^-

Polic/ Ac. requires that the potentia'

an Enviconraental I.-noacj- ck..

"n.„c= an ce us .„„Uo„.,„..: ,„,,,,,, „, ^^._^„^^^ ^^ ^^^^^

o es.aMU. ..e .as,U„, ..„„ „,,,, ,„,,„, „^^^^ ^^ ^^^^^^^;^
Th.. approach i, „„„,.„,,,,, ,„, , ^^,,^^^^ ^^^^^ ^^^^^^ ^^

Slow down con„ence„e„t of .c=„.l sU, characterization if it „,-
started now. :f the Department persists in its refusal
establish the current environmental conditions at Vucoa „„„nta.„.
Nevada wUl see. fundin, to perform this same work.

CORP.ECTTQNS NF^OFn

The ent.re repository s.t.nc procra. is threatened w.^,
collapse. ra order to avoid tnat outcome a restructure., o^ ^-e
entire program, consistent with the Act, is essential

e
to

The Department should rescind its nomination

s and

reconnendations of sites for cha - a c- e - i ~a t ^ «n

^..la.acwe.i^aCicn, ana the

218

env ironrr.encol assessments upon wnic.'i they are based. Its sitir.c
guidelines should be withdrawn. New siting guidelines, based on
sound technical criteria and capable of ob]ective application,
should be drafted by a body entirely independent of the Department
of Energy. All interested parties, including the federal
go ve r n.Tient , the states, affected Indian tribes, the nuclear
industry, and environmental organizations, should be involved in
drafting those new guidelines.

The new guidelines should then be applied, in a restarted
nation-wide search, to all geologic media, including granite, to
find a suite of sites for formal characterization which will
provide the technical confidence that real alternatives will be
available from which to select a site for the nation's first
repository.

Anything less than a new start, with obje.ctive, workable
guidelines based on sound technical criteria, will not be enough.
To continue along the path which DOE insists upon traveling is to
doom the entire process to failure. Unless we move to address the
probler.s inherent in this entire process new, the country will
have no solution to the prcoier. of the disposal and isolation of
nuclear waste, even by the turn of this century.

219

.rJ^%^^^l^^^^i '^^^"^ ^""^ "^^^y "^^ch, Governor Sawyer, for a
very thoughtful statement. We appreciate that very much

Our next witness will be Mr. Curtis Eschels-did I pronounce
that correctly, Mr. Eschels? pxuuuunte

Mr. Eschels. Yes, sir.
wIsMiSton^^'^^' ^P®^'^^ Assistant to the Governor of the State of

STATEMENT OF HON. BOOTH GARDNER. GOVERNOR STATE OF
WASHINGTON AS PRESENTED BY CURTIS ESCHELS SPECIAL
ASSISTANT TO THE GOVERNOR ^^«*^i^&, hi'l.ClAL

Mr. Eschels. I would like to thank you, Chairman Johnston.

My name is Curtis Eschels. I am a Special Assistant to Governor
Gardner for Nuclear Matters and Energy. I would like to thank
you especially for the early opportunity to address the Commie
nf W^l^^^S^^ Q ^ assistance in that direction from Senat^rXans
of Washington Senator Hecht of Nevada, and the other four Sena'
tors from the three States most directly affected
n.nrKir'" ^^^^",^^ .hf d to stay in the State of Washington princi-
^'iS^^^^^^^^^ ^^^ J'-^ ~^d' -d ther^ ari^some

I have submitted a formal statement to the Committee Members
^'^^^^''^ ^°-« "f ''^ P™"*= 'here accordtg ?o

be'pu'tfntoThTr^co'rd'"' '""' "''' ■""*■ ^"""^ f"" =''''^'"-' ""'

Mr. Eschels. Thank you.

We agree that the entire site selection process for high level nu-
brlnlTf colT.n / J(^^^^^l Juncture. We also agree that^it is on the
brink of collapse. Once it does collapse, we believe it would be
much more difficult to put it back together

no„ ^ ^'lu'' lu ^^^ ^^^^ "^^ ^^^^^ it is wise to address the problem
now, rather than wait until the courts have sent the entire proceS

read hlTa'ft T" '" '^pf ^^^"^'' T "^^ disappointed wCwl
ZlttHhr^ "'""S ^^"^ amendments that DOE offered. We

Furthermore, I think that is a natural consequence of the deci-

oHIars VamZ^Tt'^'f ^" '' '^' Departmen? in the last couple
ot years. 1 am not sitting here pretending that I have a guaranteed
so ution to that problem, but I will closl by discusILg a proposed
ZZTn °^ ^'^'^" ^^^^ ^^ ^^^i^^^ ^«^id be a starting pofnt toward
t7s^rh\?eZ?aTLr^^^^^ "^^^^ '^'''^' -^'^^-^ - ^-
Before I get to that, I would like to discuss with you some of the
tforth'.r.^vf ^', ^".Washington State are so adamant fn^ur pos'
Mav ?8 hS^ '^^^'^'^".PI°'^'' "^^^t b^ brought to a halt, that ?he
s'?r^^ctu'ret^e^tT^^^^^^^^^ ^^' ^^^ P— --^ ^e re-

firl^^onnH ^Z-^''' categories: the second round decision, and the
tirst round decision. I believe the members understand fully and

220

personally the problems with the second round decision. I would
only point out that we think they are symptomatic of the entire
implementation.

Let me turn to the first round and point out some of the items
that we have discovered and share those with you. When the De-
partment selected Hanford as one of the sites to be characterized,
it ignored the results of the ranking methodology which had been
approved by the National Academy of Sciences Board for Radioac-
tive Waste Management.

The Academy's Board did not review and did not approve the
actual implementation, the process by which DOE used the results
of that ranking methodology to select the three sites. Indeed, the
results of the ranking methodology indicate that the Hanford site
is the most costly and the least safe site of those five that were on
the list at that time. Hanford ranks dead last in the preclosure
characteristics and the post-closure characteristics in comparison of
the sites.

Dr. Ralph Keeney is a nationally known and respected decision
analyst. He is the co-author of that ranking methodology used by
the Department. He was retained by DOE because of his experi-
ence in utilizing this methodology, and prior to the May 28 decision
he recommended to the Department that the appropriate way to
identify a suite or a set of three proposed sites to look at was to
conduct what is called a "portfolio analysis."

Instead, DOE chose not to follow that recommendation and, in
part because of that, subsequent to the Department's decision Dr.
Keeney prepared and published a portfolio analysis on his own.
That work was not funded by the Department. However, based on
the portfolio analysis. Professor Keeney concluded that if three
sites are to be characterized, they would be Yucca Mountain, Rich-
ton Dome, and Deaf Smith. That is the Department's consultant.

The Department also engaged the National Academy of Sciences,
and they in turn retained a nationally respected decision analyst.
Professor Detlof von Winterfeldt. Subsequent to the May 28 deci-
sion. Professor von Winterfeldt wrote a letter to Ben Rusche in
which he commented as an individual on the DOE ranking method-
ology report on the one hand, and the recommendation report on
the other.

Professor von Winterfeldt said that in his opinion the analysis in
the ranking methodology report is sound, it is thorough, it is state
of the art application. However, there is this discontinuity between
the ranking methodology and the Department's recommendation.

On page 3 of my formal statement you will find what the profes-
sor said. I would like to quote it:

In brief, says Professor von Winterfeldt, I believe that the conclusions drawn in
the Recommendation Report are based on selective and misleading use of the analy-
sis described in the Methodology Report. It is extremely hard to find in the Method-
ology Report any support for the selection of the specific set of three sites recom-
mended for characterization. Instead, I find a convincing analysis that clearly re-
jects the Hanford site and, furthermore, supports the selection of the Richton Dome
site over the Deaf Smith site. The way the Methodology Report was interpreted in
the Recommendation Report, in my opinion, comes very close to a misuse of an oth-
erwise excellent analysis.

That is the end of that quote. He goes on to say in his conclusion:

221

. . . The most important conclusion that I draw from the Recom-
mendation Report's inclusion of the Hanford and Deaf Smith sites
is that DOE is apparently willing to accept more health effects and
an additional cost of $3,360 billion in return for several minor ad-
vantages of the two sites.

I will stop there, rather than driving the nail clear out of site.
Neither of these two distinguished experts has an axe to grind in
the selection of a repository site. They are both from California.
Neither of them was under contract to any of the States that are
involved. They both had been involved in the decisionmaking proc-
ess. They each had a different role, and yet when the Department
announced its May 28 decision, each of them felt compelled to go
on the public record with their own analysis of the decision.

My testimony includes some results of consultants that were en-
gaged by the State of Washington. It is there for your reading.
They agree essentially with the Academy and with the Depart-
ment's consultant that the final recommendation was a travesty of
the decision ranking methodology.

This is a brief summary of some of the technical reports, some of
the technical problems that we have with the Department's appli-
cation of that ranking methodology. I would like to request permis-
sion to enter the full documents from which I have quoted excerpts
into the Committee's record.

There are numerous, serious technical concerns which lead many
people to believe that the direction of the Department's process at
this point is not toward having a repository in this country. Those
concerns, as Governor Sawyer has pointed out, are shared by the
Nuclear Regulatory Commission staff. There is a good deal of over-
confidence that is not warranted. There is a good deal of uncertain-
ty that is not reflected.

We believe that it is time to consider a mid-course correction in
the repository site selection process. The May 28 decisions, we be-
lieve, must be retracted. A serious attempt must be made to reach
a concensus among the interested parties so that the process can be
improved, and so that we do end up with a solution to what is truly
a national problem.

The approach has to accomplish at least two things:

First, a timely solution to the nuclear utilities' short-term prob-
lem; and

Second, establishment of a site selection process designed to pro-
vide confidence that the search will be for the best site in this
country, and that the selection decisions are going to be based on
credible, scientific information.

We need a forum in which to begin discussion and development
of this concensus. With this in mind. Governor Gardner has re-
quested that the Department take the lead in organizing a non-
binding conflict-resolution process in which the representatives of
all the interested parties would be invited to participate. A copy of
his letter to the Secretary of Energy has been submitted with this
testimony.

The process would be conducted not by DOE but by an independ-
ent, nationally known and respected conflict-resolution consultant.
The Department, we believe, should participate in this process on
the same basis as any other interested party.

77-10A 0

222

As a prerequisite, we believe that each participant should take
knowledge first that there is a need for a comprehensive review of
the site-selection process to consider and discuss changes to in-
crease the likelihood that we will have a repository and a perma-
nent solution to the nuclear waste problem in this country.

In addition, I believe that there should be a commitment toward
channeling energies toward development of an acceptable, work-
able solution, insteading of spending time discussing who is to
blame, and pointing the finger. If DOE acknowledges that there is
a need to consider changes to the process, and if it enthusiastically
supports and participates in that concensus-building, its credibility
would be enhanced, and there is a good possibility that positive re-
sults can be achieved.

If the Department is not willing to take these steps, then I rec-
ommend that the interested parties explore alternative means of
establishing a forum to carry on this concensus-building process
without the Department.

The goal of the Act which Congress passed is to site, construct,
and operate a repository to contain high-level nuclear waste away
from the environment and from our people for the next 10,000
years. We are seeking to protect the next 400 generations of
humans from the potential dangers of waste produced by the 3 gen-
erations alive now.

If we can agree on an acceptable and workable solution to the
nuclear utilities 'short-term problem, we should not be overly con-
cerned that we have to back up a few months in the repository site-
selection process in order to instill a confidence that is so necessary
for the ultimate success.

I thank you again, Mr. Chairman, for the opportunity to give you
our perspective on the implementation by the Department of the
Nuclear Waste Policy Act so far.

[The prepared statement of Governor Gardner and a statement
from John M. Poynor, Mayor of Richland, WA, follows:]

223

TESTIMONY OF GOVERNOR BOOTH GARDNER
STATE OF WASHINGTON

SENATE COMMITTEE ON

ENERGY AND NATURAL RESOURCES

February 4. 1987

224

STATEMENT OF GOVERNOR BOOTH GARDNER

Thank you Chairman Johnston and members of the committee. I appreciate the
opportunity to present this testimony on behalf of the citizens of the state of Washington.

We have reached a critical juncture in the high-level nuclear waste repository program.
The site selection process is on the brink of total collapse. USDOE credibility is at an all
time low. Unless some bold action is taken soon, the program will be brought to an
abrupt halt by the courts. When that happens, it will result in conditions which will make
it very difficult to put the program back together. I believe it would be wise to address
the problem now, rather than wait until we are in a crisis situation.

Wc were disappointed that in the recently released draft amended Mission Plan, USDOE
did not face up to the real problems in the site selection process. The draft simply
reiterates USDOE's position and rationale on the MRS and on the second round indefinite
postponement, and acknowledges what we and most others involved in the process have
been saying for two years—that USDOE cannot have the first repository operating by
1998. USDOE has its head down and is attempting to charge forward while ignoring the
problems which have resulted from its past actions.

I do not pretend to have any guaranteed solutions to the complex problems with which we
are faced, but I would like to discuss a proposed course of action which I believe could be
the starting point toward developing a consensus among the many parties involved in the
process.

Before I discuss the proposed course of action, it is important that you understand some
of the reasons why we in the state of Washington arc so adamant in our position that the
site selection process must be brought to a halt, the May 28th decisions must be retracted,
and the process must be restructured before this program goes forward.

We, along with almost everyone involved in this program, were shocked when on May 28th
of last year, USDOE unilaterally and arbitrarily announced that the second round site
selection process had been 'indefinitely postponed". This action is clearly in direct
violation of the Nuclear Waste Policy Act. Our position on this issue is supported by
USDOE's own legal counsel. In documents which USDOE reluctantly released to

225

Congressman Markey's House Subcommittee, there is a memorandum prepared for the
USDOE decision-makers in which the staff advised that a decision to indefinitely
postpone the second round would be seen as "an obvious political ploy*. This advice was
right on target. Unfortunately, USDOE decision-makers chose to ignore the advice.
USDOE is not above the law and we believe the courts will make that point very clear.

In selecting Hanford as one of the three sites to be characterized, USDOE has ignored the
results of the ranking methodology which was reviewed and approved by the National
Academy of Sciences. The Academy did not review, nor approve, the process by which
USDOE utilized the results of the ranking methodology to select the three sites for
characterization. The results of the ranking methodology indicate that the Hanford site is
the most costly and the least safe site of the five sites under consideration. Hanford
ranks dead last in both the pre-closure and the post-closure comparisons of the sites.

USDOE says Hanford was selected to meet diversity of rock type requirements. However,
in a draft of the USDOE ranking methodology report prepared just six weeks prior to the
May 28th announcement, it was stated that the Yucca Mountain, Richton Dome, and Deaf
Smith sites "offer maximum diversity in geohydrologic settings", and that their selection
would "meet the minimum requirement for [rock type] diversity of the Nuclear
Regulatory Commission".

In a subsequent USDOE draft, it was stated as follows:

'The clear implication from the composite analysis is that Yucca Mountain. Richton Dome.
and Deaf Smith are the preferred set of sites for characterization. There are no realistic
assumptions about either pre-closure or post-closure expected performance, or about the
values used to evaluate performance that can result in Hanford being anything but the last
ranked site. And the significance of the performance differences between Hanford and
all the other sites is substantial. . . .Thus, it can be definitively stated that the results of
the composite analysis strongly suggest characterization of the Yucca Mountain, Richton
Dome, and Deaf Smith sites."

Professor Ralph Keeney was a co-author of the ranking methodology utilized by USDOE.
Dr. Keeney was retained by USDOE because of his experience in utilizing the
methodology for similar or related problems. Prior to the May 28th decision. Professor
Keeney recommended to USDOE that the appropriate means to identify the best suite of

226

three sites was to conduct a professional portfolio analysis. USDOE chose not to follow
Professor Keeney's recommendation. Subsequent to the May 28th decision. Professor
Keeney prepared and published such a portfolio analysis. This work was not funded by
USDOE. Based on his portfolio analysis. Professor Keeney concluded that if three sites
arc to be characterized they should be Yucca Mountain, Richton Dome, and Deaf Smith.

Professor Detlof von Winterfeldt was retained by the National Academy of Sciences to
assist them in their review of the USDOE ranking methodology. Professor von
Winterfeldt is nationally known and respected in the field of decision analysis.
Subsequent to the May 28th decisions. Professor von Winterfeldt wrote a letter to
Mr. Rusche in which he commented, as an individual, on the USDOE ranking
methodology report and on the USDOE recommendation report, in which USDOE
described the rationale for its selection of the three sites for further study. Professor von
Winterfeldt said that, in his opinion, the analysis in the ranking methodology report is
sound, thorough, and state-of-the-art. However, as to the recommendation report, he
stated the following:

'In brief. I believe that the conclusions drawn in the Recommendation Report are based on
selective and misleading use of the analysis described in the Methodology Report. It is
extremely hard to find in the Methodology Report any support for the selection of the
specific set of three sites recommended for characterization. Instead, I find a convincing
analysis that clearly rejects the Hanford site and, furthermore, supports the selection of
the Richton Dome site over the Deaf Smith site. The way the Methodology Report was
interpreted in the Recommendation Report, in my opinion, comes very close to a misuse of
an otherwise excellent analysis."

In his conclusion. Professor von Winterfeldt stated as follows:

". . .The most important conclusion that I draw from the Recommendation Report's
inclusion of the Hanford and Deaf Smith sites is that DOE is apparently willing to accept
more health effects and an additional cost of S3.360 billion in return for several minor
advantages of the two sites. As a decision analyst. I find these implications inconsistent
with the Methodology Report. As a concerned member of the public and a taxpayer, I
find them irresponsible.'

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227

Neither of these distinguished experts in the field of decision analysis has an ax to grind
in this process. They are both from California, and neither was under contract to any of
the states involved. They both had been involved in the decision-making process in
different roles and when USDOE announced its decision on May 28th, they both felt
compelled to go on the public record with their own analysis of the decision.

Subsequent to the May 28th decision, the Washington State Nuclear Waste Board retained
the services of ECO Northwest, a consulting firm with expertise in decision analysis, to
review the ranking methodology report and the recommendation report. Although ECO
Northwest had some suggestions for improvement of the ranking methodology report, their
general conclusion was that the analysis in USDOE's ranking methodology report was
extremely well done. However, as to USDOE's recommendation report, ECO Northwest
said the following:

'The recommendations report, in contrast, fails to document either its assumptions or its
conclusions. It purports to have conducted analyses of all relevant combinations of the
possible sets of sites, taken three at a time, but does not inform the reader as to how this
was done; furthermore, it makes several assumptions regarding the importance of the
various attributes of the analysis that cannot be supported by the data provided in the
mi'tiattribute utility study. Whereas, the [ranking methodology] report provides a sound
basis on which to begin consideration of the Nuclear Waste Policy Act mandate, the
recommendations report is a travesty of nearly everything that decision-aiding methods
stand for.'

I hope this brief summary concerning USDOE's application of the ranking methodology
helps to make clear why the citizens of the state of Washington are extremely upset about
the site selection process. Let me say that this is not a comprehensive discussion of our
concerns. We have identified numerous serious technical concerns. Many of these
technical concerns are shared by the Nuclear Regulatory Commission. In a recently
released report, the NRC staff indicated that many of the technical issues which they
raised in their comments on the draft environmental assessments, were not addressed
adequately by USDOE in the final environmental assessments.

In a recent election, 83% of the state's voters directed state officials to continue to take
all possible steps to halt USDOE's unlawful implementation of the site selection process.

228

The state of Washington has filed five lawsuits in the 9th Circuit C«urt of Appeals,
challenging USDOE's actions. We believe our lawsuits have an excellent chance of
succeeding. But it is senseless to wait for the conclusion of what could be a very long
process of litigation before taking action to get the site selection process onto the right
track. I am certain that everyone in this room today agrees that an acceptable means
must be developed to safely dispose of the nation's high-level nuclear waste.

Isn't it time that we consider a mid-course correction to the repository site selection
process? USDOE's May 28th decisions must be retracted and a serious attempt must be
made to reach a consensus among the interested parties on improvements to the process.
We must develop an approach which provides for a timely solution to the nuclear utilities'
short term problem and which establishes a site selection process designed to provide
confidence that the search will be for the best site and that selection decisions will be
b»sed on credible scientific evidence.

We first need a forum in which we can begin to develop such a consensus. With this in
mind I have requested USE>OE to take the lead in organizing a non-binding conflict
resolution process in which representatives of all of the interested parties would be
invited to participate. The process would be conducted not by USDOE but by an
independent, nationally known and respected conflict resolution consultant. USDOE
would participate in the process on the same basis as the other interested parties.

As a prerequisite to their participation, each participant would acknowledge there is a
oeed for a comprehensive review of tfee site selection process to consider and discuss
changes which would increase the likelihood of success of the repository program. In
addition, each participant would make a commitment to channel their energies toward
developisent of an acceptable and workable solution, rather than spending time discussing
who is to blame for where we are now.

If USDOE acknowledges that there is a need to consider changes to the site selection
process, and enthusiastically supports and participates in consensus-building, their
credibility would be enhanced and there is a good possibility that positive results can be
achieved. If USDOE is not williag to take these steps, then I recommend that the
remaining interested parties explore alternative means of establishing a forun to carry on
a coBsensus-bvilding process without USDOE.

-5-

229

The goal of the Nuclear Waste Policy Act is to site, construct and operate a repository
which will contain high-level nuclear waste from the environment for the next 10,000
years. We arc seeking to protect the next 400 generations of humans from the potential
dangers of waste produced by three generations. If we can agree on an acceptable and
workable solution to the nuclear utilities' short term problem, we should not be overly
concerned that we have to back up in the repository site selection process in order to
instill confidence in its ultimate success.

Thank you very much for this opportunity to give you our perspective on the repository
program.

230

STATE OF WASHINGTON

OFFICE Of THE GOVERNOR

OLYMPIA

BOOTH GARDNER

GOVEBNCW

December 30, 1936

John Herrington, Secretary
U.S. Department of Energy
1000 Independence Avenue
Washington. D.C. 20585

Dear Secretary Herrington:

On December 18, Ben Rusche and I met to discuss ihc U^. Department of Energy's request
that the state of Washington begin negotiations for a Consultation and Cooperation (C&C)
Agreement. The purpose or this letter is to respond to your request concerning C&C negotia-
tions and to recommend a course of action which, in my opinion, would substantially increase
the likelihood of success for the repository program.

Past actions and continuing litigation have created a situation where C&C negotiations, at this
time, are not a reasonable option. I am convinced that negotiations cannot be successful until
program credibility is restored, and that USDOE must take the !ead in bringing the program
back on track.

Enclosed is my proposal for a conflict resolution process which could restore credibility to the
program. Rather than wait for the courts to direct that the selection process start over, I
recommend a parallel approach which takes advantage of the knowledge and experience of
those who have been involved in the process and those interested parties having a stake in the
outcome. My proposal could lead to a mid-course correction which would be consistent with
the basic premises of the Act I believe it makes sense to do this now rather than wait until
the process is stopped by the courts.

This proposal has been reviewed in depth by the Washington State Nuclear Waste Board and
Advisory Council, and they strongly endorse this approach. I ask that you also review and
seriously consider my proposal. Please contact Curtis Eschels of my staff or Warren Bishop,
Chair of the Nuclear Waste Board, for more detailed information.

Booth Gardner
Governor

cc. Ben Rusche
Mike Lawrence
Warren Bishop

l»9.sl«»t»e Bo*J»ig AS 13 • Wytnpia. Washington 9&504 • (206) 7S><T«0 • (Sc«) 234-6780

231

NATIONAL CONFLICT RESOLUTION PROCESS:
A PROPOSED COURSE OF ACTION

Wc now have four years of experience implementing the repository site selection process
contained in the Nuclear Waste Policy Act. The process is in disarray, subject to numer-
ous well rounded lawsuits, and unlikely to progress in the near future. It is time for a
mid-course correction, similar to the action recently taken by Congress to put the low-
level waste siting process back on the right track. We must take advantage of the knowl-
edge and experience gained by the participants in the site selection process. We need a
forum to define the parameters of the mid-course correction. With this in mind, we pro-
pose the following course of action:

1. We urge USDGE to take the lead in organizing and funding a national conflict
resolution process aimed at developing a proposal for a mid-course correction to the
high-level waste repository program.

2. Implementation of the process would be conducted, not by USDGE, but by a skilled,
nationally known and respected conflict resolution consultant. .

3. Participants in the process would be representatives of interested and affected
parties, including:

a. USDGE

b. States (not limited to first round)

c. Tribes

d. Nuclear Utilities

e. Environmental Croups

f. NRG

g. EPA

h. Others, if appropriate

4. As a prerequisite to participation, each participant would acknowledge:

a. A solution must be found to the nation's klgh-level waste disposal problem.

b. There is a need for a comprehensive review of the site selection process to con-
sider and discuss changes which would substantially increase the likelihood of the
ultimate success of the repository program.

3. As a further prerequisite to participate, each participant would make a commitment:

a. To channel their energies toward timely development of an acceptable and
workable solution.

b. Not to divert the intended direction of tbe process by spending time discussing
who is to blame for where we are now.

6. Objectives of the process would be to develc^ the elements of a proposed course of
action which would:

a. Provide Tor a timely solution to the anclcar Btilities' short-term problem.

b. Establish a site selection process designed to provide confidence that the search
will be for the best site, and that selectioa decisions will be based on credible
scientific evidence.

If USDOE acknowledges the seed for a contensu-bailding process and enthusiastically
sapporU and participates ia such a process, there is a strong likelihood that positive
results can be obtained. It ■•kes tood sense to act bow rather than wait aatil the site
■election process is brought to a standstill ander Ae weight of litigation and increasing
adversary relationships.

232

STATEMENT OF MAYOR JOHN M. POYNOR

RICHLAND, WASHINGTON

Submitted to the Senate Energy and Natural Resources Committee

February 4, 1 987

For more than a year, the potential siting of a nuclear waste
repository at Hanford has been the focal point of inquiry and debate.
Since the ultimate siting of a nuclear waste repository is a most
important issue for the residents of Richland and the Tri-Cities, it
is important that the city's position be made known to the members of
the Energy and Natural Resources Committee.

In the first instance, we recognize the need to site a
nuclear waste repository. That need is critical to the American way of
life. It is critical because the cornerstone of our economy is energy,
and nuclear energy is an integral part of the economic package.
Nuclear reactors, constructed and operated for the purpose of gener-
ating power to turn the wheels of industry, are a basic part of the
national economy. As a result, the concern of how best to dispose of
high level nuclear waste, in a safe and sound manner, is a national
concern, not confined to Richland, not confined to the State of Wash-
ington, nor to the states of Nevada or Texas. It is a concern that
must be resolved on the basis of that which is in the best interest of
our nation. We must set aside parochial views and look objectively at
selecting sites for disposing of high level nuclear waste, regardless
of the states in which the sites are located or the cities that are in
geographical proximity to the sites.

■ 1-

233

If the United States is to maintain its leadership as an
industrial and economic focal point of the free world, we must be able
to successfully compete in world markets. We can ill afford to curtail
a nuclear energy resource by saying, "Nuclear waste isn't my problem,
take it somewhere else."

Recognizing the need to locate a safe and sound repository
site, there remains yet another issue, equally as important to the
citizens of Richland and the Tri-Cities. That issue deals with the
health, safety and well being of the residents of our community. Ques-
tions relating to the health, safety and well being of our residents,
as those questions relate to the potential siting of a high level
nuclear waste repository at Hanford, must be investigated, analyzed
and resolved, in the greatest detail, so that we, as residents of this
community, can determine, based on scientific study, whether the Han-
ford site is, or is not, a suitable site for such a repository.

In short, the ultimate answer to the question of where to
dispose of nuclear waste is an answer that must be based on science
and technology. We must guard against clouding the technical issues
with rhetoric that is based on emotion. Some of the best scientific
and technical minds in the world, many of whom live in Richland and
have spent years in the study and handling of nuclear waste, are ready
to address these issues. It must be their determinations and conclu-
sions upon which the ultimate decision of where to locate a nuclear
waste ' epository must be made, rather than a decision which flows from
some emotional or prejudged ideological position.

234

In order to determine whether the Hanford site is, or is not,
a suitable location, a site characterization study must be completed.
That study must address concerns such as health, safety and environ-
ment, as well as address concerns such as community impact, transpor-
tation, liability and effects on the Columbia River, to name but a
few. It is only when a definitive study is completed, that we will
have the information necessary to make an informed and enlightened
judgement. We firmly believe that site characterization studies must
continue and must be completed.

If site characterization studies indicate that Hanford is not
a safe and secure site or is not environmentally sound, the City of
Richland will be among the first to oppose siting at Hanford. On the
other hand, if site characterization studies support the safety and
environmental soundness of Hanford, then the city will be among the
first to support that location as the site and vehicle for effectively
resolving the national concern over high level nuclear waste disposal.

The obvious key is site characterization study. Without such
in-depth study we are left only with questions, and no answers.

In November of 1985 a statewide ballot measure known as
Referendum 40 was placed before the voters of the State of Washington.
That referendum measure, though having no legal significance, was
designed to deliver a message to the President, Congress, the Depart-
ment of Energy and the remaining 49 states. The message, in part, was

235

intended to advise the rest of the nation that the State of Washington
was prepared to "use all legal means necessary" to accomplish a series
of activities aimed at derailing the site selection process. Further
study of the Hanford site, through the characterization process, was
one of the activities the State of Washington was seeking to halt.

While many residents of Richland and the Tri-Cities area
could agree with at least some parts of Referendum 40, particularly
that aspect of the referendum that challenged the Department of
Energy's deferred consideration of a second repository site in the
east, our city and county strongly opposed attempts to halt the site
characterization process at Hanford.

Our feelings concerning the need for site characterization
were strong enough to compel a separate ballot issue in Benton County
asking the singular question:

"Should the Hanford site be the subject
of further scientific study by the De-
partment of Energy to determine whether
it is safe and technically suitable as a
high level nuclear waste repository?"

Contrary to the emotional tide that swept the State of Wash-
ington with regard to Referendum 40, the voters of Richland and Benton
County, people who would be most directly impacted and affected by a
potential siting of a high level waste repository at Hanford, voted

236

overwhelmingly in support of continuing scientific study to determine
the safety and suitability of Hanford as the site for a high level
nuclear waste repository. Based on the certification by the Benton
County Auditor, 79% of Benton County voters favored the local ballot
issue, while only 2^% were opposed to continuing study of Hanford.

Let me clearly state that our community has not taken a posi-
tion, either for or against, the ultimate question of whether a
high level nuclear waste repository should be located at Hanford. That
determination must await further study. On the other hand, we have
taken a strong position in support of site characterization studies,
recognizing that such studies are the only viable means of obtaining
objective scientific and technical information necessary to the ulti-
mate decision.

Finally, there exists yet another reason why site character-
ization must continue to a logical conclusion. With the selection of
Hanford as a finalist site, our community has been viewed with skepti-
cism by business and industry that has considered Richland as a site
for development. That skepticism stems from questions of health, safe-
ty and environmental soundness, coupled with the fear that Hanford may
be selected based on political, rather than technical, considerations.
That skepticism continues to have a profound economic impact on oiir
community. That skepticism, however, can and will be greatly elimi-
nated as a result of a credible series of site characterization
studies that answer, once and for all, the questions surrounding the
safety and soundness of Hanford as a potential high level nuclear
waste repository site.

237

On behalf of the City of Richland, I urge you to do every-
thing within your power to assist the Department of Energy in moving
ahead expeditiously with site characterization activities.

Thank you for considering my statement on this matter of
vital importance to the Richland community, the State of Washington
and the United States of America.

JHN M. PO^NOR
Hay or

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238

The Chairman. Thank you very much, Mr. Eschels. We appreci-
ate your testimony.

Now, from the State of Texas, Mr. Frishman.

STATEMENT OF HON. WILLIAM P. CLEMENTS, JR., GOVERNOR,
STATE OF TEXAS AS PRESENTED BY STEVE FRISHMAN, DIREC-
TOR, NUCLEAR WASTE PROGRAMS, OFFICE OF THE GOVERNOR
OF TEXAS

Mr. Frishman. Thank you, Mr. Chairman.

My name is Steve Frishman. I am Director of the Texas Nuclear
Waste Programs Office. Governor Clements has asked that I
convey his regrets for not being able to be here personally, but he
has a rather tight legislative agenda right now. He has asked me to
present this statement to you for him today, and to be available to
respond to any questions that you may have.

Mr. Chairman, as you are aware, the State of Texas has been
active and participating since 1977 in the Federal Government's
program that seeks to safely dispose of high-level radioactive waste
in a manner that is acceptable to the affected public.

The Nuclear Waste Policy Act of 1982 correctly recognizes that
the confidence of the public in the waste program is essential to
the Nation's successful resolution of the waste disposal problem.
We in Texas recognize the need to serve this national purpose of
disposing of these dangerous wastes in a safe, acceptable, and
timely manner. But regrettably. Governor Clements finds that he
must report to you that his confidence in this goal being reached
through the current implementation of the Nuclear Waste Policy
Act is severely stressed.

Today I will speak for Governor Clements to some of the matters
that have resulted in a continued erosion of our confidence in this
program.

Governor Clements' view as stated here is supported by com-
ments, reviews, evaluations, and other activities of the Texas Nu-
clear Waste Programs Office through the years.

On June 16, 1986, testimony was presented on behalf of the State
of Texas before the Energy Research and Development Subcommit-
tee of this Committee. In that testim.ony, concerns were expressed
regarding the following topics:

The failure to provide sound and credible technical substantia-
tion for the selection of Texas, Nevada, and Washington as candi-
date repository sites;

The failure to consult with Texas as an affected State regarding
program activities and decisions in a manner intended by Congress
and provided for in the Nuclear Waste Policy Act;

The failure of the Deaf Smith County Final Site Environmental
Assessment to sufficiently evaluate the potential impacts of salt
contamination from program activities on prime farmland and
groundwater;

The failure to adequately consider the potential impacts of pro-
gram activities on essential groundwater resources in and around
the Deaf Smith County site; and

239

The indefinite deferral of the siting of a second high-level nucle-
ar waste repository and the potential adverse health and safety
consequences of that decision.

There are additional critical technical concerns that lead us to
believe that the Deaf Smith site in Texas is not a suitable candi-
date repository site, and further to believe that a program that
could select such a site for the vast expenditure of funds and time
necessary for site characterization must be severely flawed.

The Nuclear Waste Policy Act requires that the Nuclear Regula-
tory Commission and the Environmental Protection Agency estab-
lish technical standards for the licensing of a repository and envi-
ronmental protection standards to be addressed in that licensing
process. The DOE has been told in numerous communications that
the Deaf Smith County site has a number of characteristics that
raise serious doubts whether it will be suitable for a repository li-
cense from the NRC.

Despite the data limitations, which include the fact that DOE
has collected no primary data from the designated nine-square-mile
site, nor has it drilled any bore holes at the site, the preliminary
determination that the site is suitable for a repository development
has been announced. We contend that the Act in Section 114(f) re-
quires that this determination be made following the completion of
detailed site characterization, not at the time the site is selected
for characterization.

I would like to briefly discuss a couple examples of some of the
critical technical issues, as you requested, Mr. Chairman.

One of the critical geotechnical issues regarding the potential
suitability of the site that raises our concern is whether the host
rock characteristics of the Deaf Smith site will permit compliance
with the statutory and regulatory licensing requirement that the
waste be retrievable for 50 years after initiation of emplacement,
as well as whether the repository can be designed as required to
preserve for safety purposes this retrieval option.

It is a known fact that salt will creep — i.e., flow under pressure
and heat conditions at depth. DOE's own calculations in the final
EA recognize a projected high creep rate for the host salt. These
same calculations had earlier been used to project creep rates at
the geologically similar DOE WIPP project in New Mexico.

When compared to data collected from the actual mine openings,
the room closure rate was found to be 300 to 400 percent faster
than originally predicted. Also, DOE's predicted closure rates for
the Deaf Smith salt were derived from analyses on samples that
were selected for the highest purity, even though it is known that
the impurities in the Deaf Smith host salt will accelerate creep.
This rapid closure rate will preclude maintaining the retrievability
option as required by law.

240

escape of waste from the repository over a period of thousands of
years.

A review of available shaft-sealing technology raises serious
questions concerning whether these requirements for repository
protection and waste isolation can be achieved with any level of as-
surance. In addition, the ability to seal the shafts adequately di-
rectly relates to assuring against catastrophic flooding of the repos-
itory, or in situ test facility during construction, testing, and oper-
ations.

Mine shaft failures and sudden flooding under geologic condi-
tions very similar to those at Deaf Smith County continue to be re-
ported by the mining industry, and progress is very slow in devel-
opment and testing of technology- that may reduce the likelihood of
these types of failures.

This condition is considered adverse to repository safety and per-
formance in DOE's site recommendations guidelines, yet the final
EA does not acknowledge the condition as being present. In addi-
tion, the associated disqualifying condition in those guidelines re-
garding the potential for significant risk to the health and safety of
personnel during construction, operation, and closure of the facility
is given essentially no consideration in the Deaf Smith final envi-
ronmental assessment.

As illustrated in these examples, the DOE has failed to respond
to established standards, as well as its pledge to apply technical
conservatism in decisions regarding the potential suitability of sites
for a repository. The overall level of criticism associated with a
lack of data and the failure to adequately consider available infor-
mation and interpretation serves only to erode confidence in the
technical base of the site-selection program of the DOE.

It is doubtful that a significant investment in additional investi-
gation will satisfactorily reduce the primary uncertainties already
identified at the Deaf Smith site. In fact, given the state of knowl-
edge of the site, the greater likelihood is that additional major un-
certainties will emerge as investigations progress, all of which will
result in further questioning of the ability of the site to safely per-
form in the required manner.

Similar shortcomings have been identified and described regard-
ing the Nevada and Washington candidate sites, and the pervasive
optimism in technical interpretation by the DOE has served to
overshadow these, as well as those for the Deaf Smith site.

It is our conclusion that before the program progresses with the
needed years of investigation at the selected candidate sites, and
the consequent expenditure of billions of dollars, the Congress
should direct a rigorous evaluation of the process by which the po-
tential repository sites were selected.

Much has been learned before and since passage of the Nuclear
Waste Policy Act that will assist us together in determining wheth-
er revision of the initiate site selection standards and initiation of
the new technically driven screening of the Nation's geology would
result in an improved ability to serve the national goal of timely,
safe, and acceptable disposal of radioactive wastes.

Governor Clements believes that you will find this to be the case.
Thank you.

[The prepared statement of Gov. Clements follows:]

241

Statement of
William P. Clements, Jr.
Governor of Texas

Before the
United States Senate
Committee on Energy and Natural Resources

February 4, 1987
Washington, D. C.

Regarding the Status of Implementation of
The Nuclear Waste Policy Act of 1982

The State of Texas has been an active participant, since 1977, in the
federal government's program that seeks to safely dispose of highly
radioactive wastes in a manner that is acceptable to the affected public.
The Nuclear Waste Policy Act of 1982 correctly recognizes that the confidence
of the public in the waste program is essential to the nation's successful
resolution of the waste disposal problem. We in Texas recognize the need to
serve the national purpose of disposing of these dangerous wastes in a safe,
acceptable and timely manner, but, regrettably, ! .must report to you that our
confidence in that goal being reached through the current implementation of
the Nuclear Waste Policy Act is severely stressed.

Today I will speak to some of the matters that have resulted in a
continued erosion of confidence in the program. My statement is supported by
comments, reviews and evaluations of the Texas Nuclear Waste Programs Office
which has coordinated the State's activities on this issue for a number of
years.

242

On June 16, 1986, testimony was presented on behalf of the State of
Texas before the Energy Research and Development Subcornmittee of this
Committee. In that testimony, concerns were expressed regarding the
following topics:

— The failure to provide sound and credible technical substantiation
for the selection of Texas, Nevada and Washington as candidate
repository sites;

-- The failure to consult with Texas, as an affected state, regarding
program activities and decisions in a manner intended by Congress and
provided for in the Nuclear Waste Policy Act;

-- The failure of the Deaf Smith County Final Site Environmental
Assessment to sufficiently evaluate the potential impacts of salt
contamination from program activities on prime farmland and
groundwater;

-- The failure to adequately consider the potential impacts of the
program activities on essential groundwater resources in and around
the Deaf Smith County Site;

-- The indefinite deferral of the siting of a second high-level nuclear
waste repository, and the potential adverse health and'safety conse-
quences of that decision.

There are additional critical technical concerns that lead us to believe
that the Deaf Smith County Site, in Texas, is not a suitable candidate
repository site, and further to believe that a program that could- select such
a site for the vast expenditure of funds and time necessary for site

243

characterization must be severely flawed.

The Nuclear Waste Policy Act requires the Nuclear Regulatory Commission
and the Envi ronrrental Protection Agency to establish technical standards for
the licensing of a repository and environmental protection standards to be
applied in that licensing process. The DOE has been told in numerous
communications that the Deaf Smith County Site has a number of characteris-
tics that raise serious doubts about whether it will be suitable for a
repository license from the NRC. Despite the data limitations, which include
the fact that the DOE has collected no primary data from the designated nine
square-mile selected site, nor has it drilled any boreholes at the site, the
preliminary determination that the site is suitable for repository
development has been announced. We contend that the Act (Section 114(f))
requires that this determination be made following the completion of detailed
site characterization, not at the time a site is selected for
characterization.

One of the critical geotechnical issues regarding the potential suit-
ability of the site that raises our concern is whether the host rock char-
acteristics of the Deaf Smith site will permit compliance with the statutory
and regulatory licensing requirement that the waste be retrievable for 50
years after initiation of emplacement, as well as whether the repository can
be designed, as required, to preserve, for safety purposes, this retrieval
option. It is a known fact that salt will creep, i.e., flow under pressure
and heat conditions at depth. DOE's own calculations in the Final EA
recognize a projected high creep rate for the host salt. These same

244

calculations haH earlier been used to project creep rates at the geologically
similar DOE Waste Isolation Pilot Project (WIPP) in New Mexico. When
compared to data collected from the actual mine openings, the room closure
rate was found to be 300 to 400 percent faster than originally predicted.
Also, nOE's predicted closure rates for the Deaf Smith salt were derived from
analyses on samples that were selected for the highest purity, even though it
is known that the impurities in the Deaf Smith host salt will accelerate
creep. Core samples from the same boreholes sampled by DOE show multiple
interheds (layers) of mudstone, clay, and anhydrite. This rapid closure rate
will preclude maintaining the retrievabi 1 i ty option as required by law.

Another major concern that we and the NRC staff reviewers share is in
regard to the ability to satisfactorily and safely seal the shafts associated
with site characterization and repository development under the geologic
conditions at the site. The shafts must transect two major underground
aquifers, preclude the possibility of groundwater leakage across formations
and to the host salt horizon, and ultimately avoid creating nr serving as
pathways for escape of waste from the repository over a period of thousands
of years. A review of available shaft sealing technology raises serious
questions concerning whether these requirements for repository protection and
waste isolation can be achieved with any level of assurrance. In addition,
the ability to seal the shafts adequately directly relates to assuring
against catastrophic flooding of the repository or in situ test facility
during construction, testing and operations. Mine shaft failures and sudden
flooding under geologic conditions very similar to those at the Deaf Smith

245

County Site continue to be reported by the mining industry and progress is
slow in development and testing of technology that may reduce the liklihood
of such failures. This condition is considered adverse to repository safety
and performance in DOE's site recommendation guidelines, yet the Final EA
does not acknowledge the condition as being present. In addition, the
associated Disqualifying Condition (10 CFR 960.5-2-9(d) ) , regarding the
potential for significant risk to the health and safety of personnel during
construction, operation, and closure of the facilities is given essentially
no consideration in the Deaf Smith County Site EA.

As illustrated in these examples, the DOE has failed to respond to
established standards, as well as its pledge to applet technical conservatism
in decisions regarding the potential suitability of sites for a repository.
The overall level of optimism, associated with a lack of data and the failure
to adequately consider available information and interpretations serves only
to erode confidence in the technical base of the site selection program of
the DOE.

It is doubtful that a significant investment in additional investigation
will satisfactorily reduce the primary uncertainties al ready -identi fied
at the Deaf Smith site. In fact, given the state of knowledge of the site,
the greater liklihood is that additional major uncertainties will emerge as
investigations progress, all of which will result in further questioning of
the ability of the site to safely perform in the required manner.

Similar shortcomings have been identified and described regarding the

246

Nevada and Washington candidate sites, and the pervasive optimism in
technical interpretation by the DOE has served to overshadow these as well.
It is our conclusion that, before the program progresses with the needed
years of investigation at the selected candidate sites, and the consequent
expenditure of billions of dollars, the Congress should direct a rigorous
re-evaluation of the process by which potential repository sites were
selected. Much has been learned before and since passage of the Nuclear
Waste Policy Act that will assist us, together, in determining whether
revision of the initial site selection standards and initiation of a new,
technically driven screening of the nation's geology would result in an
improved ability to serve the national goal of timely, safe and acceptable
disposal of high-level radioactive wastes. It is my belief that you will
find this to be the case.

XXXXXXXXXXXXX

247

The Chairman. Thank you very much, Mr. Frishman.

All of you have given excellent testimony. Let me say that each
of you in one way or the other has suggested that we have some
kmd of moratorium, determine how better to manage the waste, or
choose the sites, or provide for the selection of those sites, and then
go forward.

We are very, very sympathetic to what you have said and your
complaints, but the passage of the Nuclear Waste Policy Act in
1982 was something of a legislative miracle. It was very difficult at
that time to pass. I thought it was dead four or five times, but we
put it together— not exactly as I wanted to pass it. Governor
Sawyer, I wanted to have the MRS as the primary disposal method.
In fact, the Senate, the previous Congress had passed a waste dis-
posal act as an MRS, without going to deep geologic.

But we were persuaded, since the Environment and Public
Works Committee also had jurisdiction, and they wanted to go
solely toward deep geologic. In any event, a grand compromise was
fashioned, and it was the Nuclear Waste Policy Act.

Now from my standpoint, and I think from the standpoint of
many Members of this Committee, we are not going to give up that
Act and its procedures, flawed though they may be in some re-
spects, without having in place another procedure. So in other
words, we have a procedure that can work; that may be somewhat
flawed, but we cannot give that up without going to something
better. Because it is like a ticking bomb, you have got to do some-
thing with it. You cannot just hold it until it blows up. I do not
mean to say that nuclear waste is going to blow up. [Laughter.]

The Chairman. Let us say it is like a rotten grapefruit. [Laugh-
ter.]

The Chairman. Governor Sawyer, there was a very provocative
article written in the magazine Science and Technology, which is
published quarterly by the National Academy of Sciences, by one
Luther J. Carter entitled "Nuclear Imperatives and Public Trust."

In effect, what he does is he examines the Act in the search for
sites in some great detail. He says that with respect to the Deaf
Smith site, that it is under the acquifer near farmland, much of
what you said, Mr. Frishman, and says that in his judgment that is
not a good site.

Let me say that I am giving this as his judgment. This is not to

aA" ^^^ ^^^ interpreted as my judgment, but it is provocative.

With respect to the Hanford site, he says the total estimated cost
at Hanford was $12 billion, with cost uncertainty for this and other
sites put at 35 percent either way. Second, to build a repository
there might prove impossible at any price. He goes on to talk fur-
ther about the difficulties at Hanford.

Then he talks about Nevada and says that, while there would be
u J J J ^^^^ ^^ ^^°' ^^^^ Nevada does not have the absolutely em-
bedded opposition that others would have. Here is what he says,
but the kind of deep, visceral public opposition that has been evi-
denced in places such as southern Mississippi and west Texas ap-
pears to be lacking in Nevada. '

He goes on to say that: With a nuclear test ban treaty, southern
Nevada could loose the test site as one of its economic mainstays.

248

The facility is the State's single largest employer, providing some
6800 jobs.

And his conclusion is that perhaps we should choose one site to
characterize, namely Yucca Mountain, but that there ought to be a
quid pro quo. This would consist of a quid pro quo with Nevada to
acquiesce in the siting activities at Yucca Mountain in return for
substantial benefits, perhaps cash bonuses and generous in-lieu-of
tax payments, plus assurances that the State would be allowed a
strong voice in certain matters of public concern such as the way
in which spent fuel will be shipped into Nevada.

I will not go into all the rest of the article, because it is quite
detailed, and I will get staff to have a copy for you. I do not ask
you to agree with that statement today. For one thing, if one
person came here, no matter who he was, a sitting Governor, a
former Governor, or whoever he was, and offered up his State, I
would think it would be rather foolish for him to do so.

On the other hand, if this article is correct, and I do not know
that it is, the Federal Government would save vast sums of money,
billions of dollars. It was a great shock to me to learn that the cost
of characterization of these sites has grown from what we were told
in 1982 about $60 million a site to about $1 billion a site.

If that is so, then maybe the choice — I mean, if he is correct,
then maybe the choice that Nevada would make is to go as the
present law is going, and not be entitled to much of anything.
Indeed, you are having trouble, and I am sorry to hear that, get-
ting the cost of management of the selection process refunded to
you by DOE.

Or maybe, on the other hand, there is room for some grand com-
promise here where Nevada says, all right, if we take Yucca Moun-
tain, we ought to be entitled first of all to determine how that
waste is shipped, how it is stored, to have a very dramatic voice in
the design of that facility; and maybe people in the county should
never have to pay property taxes again; maybe they ought to have
grade schools provided by the Federal Government; maybe we
ought to have this or that that money can do. And considering that
Nevada has already had all these nuclear explosions there, it is not
exactly like it is a pristine national park. I do not ask you to agree
with that, but I throw that out to you, and I ask you to take that
seed back not as my idea, not as something we are trying to force
on Nevada, because we have an Act which will proceed, and we
may have lawsuits, but the Act, the law of the land, is not going to
be easy to change.

But I ask you to take that back so it can be thought about. Staff
just passed me a note that says, and maybe site the Super-conduct-
ing Super Collider, in Nevada. [Laughter.]

The Chairman. That is not built yet. You know, that is that $8
billion Super Collider, and I do not know whether we can afford
that or not, but we have this funded. This is funded with billions of
dollars in the till right now, and ought to be thought about.

Would you like to take that back? Or would you like to speak
about it right now?

Mr. Sawyer. Maybe I can just make some comments on it, Mr.
Chairman. We are really not complaining about the Act. Our prin-
cipal concern is what we believe to be a terribly flawed implemen-

249

tation of that Act. We are not asking the Congress to pass a new
Act, to abandon the old Act, but to look at the whole problem in
terms of implementation and whether or not the intent of Congress
IS really being carried out.

With respect to the article, I have not read it. I do not know
whether this gentleman is a scientist or a journalist. Nevertheless
1 agree with him, with the limited knowledge I have, on Hanford
and Texas. Frankly, it has always seemed absurd to me that DOE
could possibly have picked Hanford, Washington, six miles from
the Columbia River, already bothered as I understand it with leak-
age from the Defense storage that is there into the Columbia River
which affects certainly Senator McClure and the State of Idaho
through the Snake River, the States of Washington and Oregon
the lifeblood in many respects of those States. '
• ^f always has seemed absurd to me, again having limited scientif-
ic knowledge or information, that they would select Deaf Smith
County, Texas below the largest, as I understand, underground ac-
quifer in the United States of America, a river! However, as I un-
derstand the guidelines that DOE has set, they had no choice but
to select Nevada and Washington because they said one of the
three will be tuff. Nevada is the only tuff in the United States. So
there was no choice. There was no comparison. There was no selec-
tion process. Nevada was it. As I understand it, under the guide-
lines they said one of the sites will be salt, and Texas

The Chairman. Well, let me ask you. I am sure they will speak

AT o^ ^^^ ^^^^^ ^^^®^' ^^^ what is wrong with Nevada*?

Mr. Sawyer. Well, in Nevada we feel that we have just as legiti-
mate objections as the other two.

The Chairman. Well, you do not have the acquifer

Mr. Sawyer. We do not have the acquifer

The Chairman. Or the farmland.

Mr. Sawyer. We do not have the Columbia River. However we
have a number of other things, all of which are attached to my re-
marks We seriously question any studies that they have done with
respect to faulting. As you know, Mr. Chairman, weapons testing

Axru ?"./°.^^^ °^ ^^"^ ^^^y y^ars, just adjacent to that location.

What that weapons testing, maybe 20, 30 times a year of minor
earthquakes, has done to the structure of that tuff, nobody knows
it may very well have weakened it to the point where it simply is
not acceptable. We need to test that. We have an underground
river going through that area, and I must admit to you that at
least when I was in office we did not know how much water was
there or how fast it flowed, but we knew it was there, and it serv-
ices much of the Las Vegas Valley, as Senator Hecht well knows.
We do not have any idea, really, how that will be affected.

We have mineral resources in that area, which I do not think
anybody denies, which is another complicating problem. So we
think that we have legitimate complaints, probably as legitimate as
1 teel both Hanford and Texas have.

The Chairman. Let me emphasize, if I may. Governor, it is not
our purpose here to choose the site.

Mr. Sawyer. I understand.
u ^}l? Chairman. We simply want to air your objections. It would
be the Department of Energy— who will choose that site, and be-

250

lieve me I will not try to influence the Department of Energy-
unless there was some grand compromise that Nevadans brought
up here to us, and we might consider that seriously.

Mr. Sawyer. Well, Mr. Chairman, my response to that is this:
That suggestion is not new in Nevada. There are a number of
people that feel that we should say, look, we are going to be the
site; the whole thing is rigged. It is obvious that Nevada is going to
be the selection; let's get out of it what we can. Let's begin to nego-
tiate now, as the Chairman suggests we discuss.

That has been raised both editorially and personally by some of
the people on the political scene. I would just suggest to you, Mr.
Chairman, and Members of the Committee, that our Governor's re-
action to that has been, I do not want to state it for him, but I
think he stated publicly that with the present players and based
upon his past experience in four years as Governor of Nevada, that
under no circumstances would he as Governor accept Nevada as
the site.

The general — and Senator Hecht can correct me on this, if I am
wrong — but the general public feeling I think about it, even though
they understand that we might be in there and get a lot of good
stuff out of it, the general public feeling I think is adverse. Some
people say as much as 80 percent are adamantly opposed to the site
under any conditions.

The legislature three days ago in an Assembly Committee passed
a resolution which in effect puts the legislature on record at least
to this point of opposing the site under any condition. Whether or
not that will pass, Mr. Chairman, I do not know. I am trying to
give you a sense of what I think the general public reaction is, be-
cause the gentleman that wrote that article in my opinion misstat-
ed that, either that or he wrote it quite some time ago before
public opinion had jelled.

The Chairman. The press is frequently wrong.

Mr. Sawyer. I have noticed that, sometimes.

The Chairman. But it is a provocative article.

Mr. Sawyer. Yes.

The Chairman. We are not threatening to impose it, or even
urging or suggesting it, but simply to point out some salient facts,
and also to point out the amount of dollars involved, which are sub-
stantial.

I have got some other questions, but let me go

Mr. Loux. Mr. Chairman?

The Chairman. Yes.

Mr. Loux. If I just might add briefly to your comment, there has
been a formal response from the State of Nevada to that article in
the form of a letter to the magazine itself pointing out several
flaws with the logic that Mr. Carter uses to arrive at his conclu-
sion.

I think in general the State agrees with his discussion of the fail-
ure of the program, but then he makes this quantum leap to the
Nevada site with I think, again echoing Governor Sawyer's com-
ments, very serious technical concerns as raised even by the NRC
staff. The discovery of potential hydrothermal waters beneath the
site have caused a great deal of speculation about the ability of

251

canisters to perform in even the 200 to 300 year range, let alone
the period of time we are talking about.

Again, the active faulting on the mountain itself, accelerated by
weapons shots. I do not think the technical problems at Nevada are
any less severe than they are at the other two sites.

The Chairman. Well, I might add that I do not think there is a
place m the United States that is going to be thrilled about taking
this. Oak Ridge, with the MRS, the Oak Ridge City fathers wanted
it, but they found out later that the State of Tennessee did not
want the MRS, and I expect we will find that anywhere. I simply
throw that out in case you have not seen the article.

Now we are going to go again on the rule of self-restraint. I
would ask the Committee Members to try to hold their questioning
down to five or ten minutes. I hope we can go on that rule so we
will not have to have time clocks in the future. So let us guide our-
selves accordingly.

First I want to recognize the ranking Minority Member, and
then we will go on the basis of when Senators arrived.
Senator McClure.

Senator McClure. Well, thank you very much. Let me defer to
those who arrived and heard all the testimony. I was detained, and
I would like to defer to them at this time, if I can.

The Chairman. I do not know who was first. I think Senator
Hecht was first.

Senator Hecht. Thank you, Mr. Chairman.

Governor Sawyer, you heard what our distinguished Chairman
said about our State, how he downgraded it, just another example
of what happens with the Democrats in control. [Laughter.]

Senator Hecht. To all of you in the audience. Governor Sawyer
IS a Nevada Democratic National Committeeman.

I do have one bit of news which was called in to my staff this
morning. Governor, that you can take home with you. The Energy
Department said this morning they are prepared to make available
to Nevada $6.7 million for the 1987 fiscal year. I realize that the
State originally asked for $5 million, and more recently requested
$10 million for fiscal year 1987. However, we are pleased to be able
to tell you that the $6.7 million is now available, and I am pre-
pared to work with you to get the rest of your budget request.

I enjoyed your testimony very, very much, because you dealt
with facts. You analyzed the bill which Congress passed in 1982
before I got here, but I have read it. You were very well acquainted
with it, and this is the way we have to go in the future. Stick to the
tacts, because this is your court of last resort.

Next week I am going to be in Nevada and I am going to address
the Nevada Legislature, and I am going to say that nuclear waste
is an issue that cannot be wished away, and plans to abandon a
suitable repository in the East were clearly wrong and, in my view
violated both the Nuclear Waste Policy Act and the intent of Con-
gress.

To go on, nuclear waste is a national problem. It requires a na-
tional solution. In order to participate in the selection process,
Nevada must maintain a position of responsibility. Otherwise, we
lose all credibility, especially with Congress, the court of last
resort.

252

The bottom line has to be safety, whether it is ours or our neigh-
bors'. We cannot put politics above the safety of the American
people. You brought that out today, because you have brought out
the Department of Energy's site selection process. There was too
much politics involved. This is too important an issue to be dealt
with in politics, and that is why we must base our positions on
facts and scientific knowledge.

In your testimony on page 11, you made a very, very good point
which we have all been looking at for two or three years. It is
clear, I believe, that as a part of this process Congress must revisit
several fundamental questions. For example: Is deep geologic dis-
posal really the safest and best solution to the waste disposal prob-
lem?

Then you go on to say, no other nation appears to regard it as
such. We had the Swedisn nuclear group in with us last week, or
the week before. I think we are going to have a trip to France, and
Germany with our distinguished Chairman, seeing how France
deals with it, and in my opinion France has done so well with nu-
clear plants. I do not know what the statistics are, but I think by
the year 2000 they are going to be somewhere between 80 and 90
percent nuclear. They are making plans for the future, and I con-
tinue to bring up to our Chairman that we are not making plans in
America for the future as far as energy is concerned, whether it is
nuclear or the fact that — we are not going out and getting enough
oil. Other countries are going ahead on this.

You also brought out something I have been talking about, too,
the effect of nuclear detonations. I am going to be appointing a
blue ribbon panel of the best scientists available in the next few
months to conduct an independent study of any possible correlation
between the earthquake fault that runs through Yucca Mountain
and the man-made earthquakes generated at the nearby Nevada
Test Site.

During Energy Committee hearings last year I was shocked to
learn that according to DOE no earthquake study had ever been
conducted. Nuclear waste opposition based on scientific fact will ul-
timately bear much more weight in the final decision than hysteri-
cal and political rhetoric.

I hope this report will be ready within the next two years. Also,
once I got into this I found out that we have a live volcano approxi-
mately 100 miles away from Yucca Mountain. This has not been
addressed. So, together let us address this whole situation, the nu-
clear situation, on facts and not hysteria. Then when you come to
the Coriimittee like you did this morning, you have an audience,
and you have an audience outside of this forum in the United
States Congress.

I thank you for making the long journey. I enjoyed your testimo-
ny.

Mr. Sawyer. Senator Hecht, in order to clarify any political im-
plications from your remarks, let me say that indeed I am National
Committeeman. However, Senator Hecht and I have been personal
friends for a good many years, and have the highest regard and re-
spect for one another.

Senator Hecht, I am aware of the activities that you are taking
with respect to the faulting and the testing activity there and

253

greatly appreciate, as does everyone in Nevada, your insistence
that this potential be scientifically evaluated. We are delighted —
from Nevada, we are delighted you are on this Committee.

Senator Hecht. Thank you.

Thank you very much, Mr. Chairman.

The Chairman. Senator Hecht is a very valuable member of this
Committee. As a matter of fact, I agreed to expand the Committee
so he could come on. So we are delighted to have him.

Senator Hecht. And I thank you again for that kind consider-
ation. You know, Nevada has roughly 87 percent of our land con-
trolled by the Federal Government, so certainly it is important for
a representative from Nevada to be on this Committee, and I thank
you again publicly, Mr. Chairman.

The Chairman. We have another Member of this Committee who
has a slight interest in this issue.

Senator Evans.

Senator Evans. Thank you, Mr. Chairman.

Let me say to my colleague from Nevada, you may have 87 per-
cent public land, but you sure use the other 13 percent pretty effec-
tively. [Laughter.]

Senator Evans. I should say that if you have a live volcano some-
where within 100 miles, we will match you live volcanos within 100
miles of the site. [Laughter.]

Senator Evans. We have got our own in St. Helens.

It is a delight to welcome this panel, and particularly my old col-
league Grant Sawyer who served as Governor of Nevada while I
served as Governor of Washington.

Let me ask the question of each of you. As a basis for where we
ought to go, this is really an oversight hearing on the Act, where
we have come, and where we should go. Let me begin with the
question: If — and I emphasize the "if — if an appropriate scientific
investigation were concluded that came out with a recommenda-
tion that, yes, a deep geologic storage was safe, yes, that the Gov-
ernment could legitimately sign off on an environmental impact
statement that would make it safe for the 10,000 year period they
suggested, that it met all of the questions that arose, and the site
happened to be in your State, at that point is it a legitimate thing
for you to accept the site?

[Pause.]

Senator Evans. Well, I am overwhelmed by the silence. How
about Texas?

Mr. Frishman. Senator, this is not a new question.

Senator Evans. But it is a pretty basic one. If we cannot get past
that question, we cannot get to question number two.

Mr. Frishman. Our position has been, I think throughout the
State's about 10-year involvement in this process now, that if the
scientific information were compelling, if we were satisfied that all
investigation had been rigorously exhausted and led to a site in
Texas being the best site that could be identified in the Nation,
then, yes, we would have to seriously consider our position regard-
ing whether we would find that acceptable or not.

I think you are well aware of the provisions in the Act that sort
of politically drive some answers that may not be exactly reflective
of what I just said, but we have all along said if in fact we have the

254

site, regardless of whether it is Deaf Smith or not, and we do not
beUeve Deaf Smith to be the one, but if we had a site where it was
compelhng and convincing that this was the safest site that could
be identified in the Nation, we would have to look very seriously at
that as we serve the Nation.

Senator Evans. I am not sure if that was a yes, or a no, but it is
probably as close to yes as anybody can come.

The Chairman. They would look very seriously right before they
exercised the veto. [Laughter.]

Mr. Frishman. Well, that was the provision I was referring to.
The veto provision is politically a very difficult one both for gover-
nors and legislatures, and for the Congress.

Senator Evans. Sure, and I understand that fully. I understand
all of the political connotations that are contained in the question.

Mr. Sawyer, how about you?

Mr. Sav^yer. I have anticipated this question, too. My feeling is
that with the present situation that the Department of Energy will
probably never be able to re-establish its credibility to the point
where Nevadans would say we believe what they have found.

Senator Evans. I understand that, and I may well agree with
that, but that really was not the question. The question was: What
in your view should the answer be, assuming the — with the big "if
at the front end — but the overwhelming and compelling scientific
evidence was that a repository indeed could be sited in a particular
location safely for this period of 10,000 years, and that site hap-
pened to be in Nevada.

Mr. Sawyer. If that conclusion came from an agency that had
credibility, that had established itself as authoritative and could be
believed

Senator Evans. I will stipulate all that.

Mr. Sawyer. Then of course anybody would have to take a look
at that. [Laughter.]

The present situation does not permit that, because the players
presently have no such credibility. And even if they arrived at that
conclusion, I do not think anyone would believe it.

Senator Evans. I understand that.

Mr. Eschels?

Mr. Eschels. The short answer to your question as it was posed
is, yes, we would do that — remembering the conditions. That has
been our position, and continues to be our position.

Senator Evans. It seems to me that that has got to be, for the
Nation, the only appropriate answer. We already have the waste
and it is not going to go away. At least we have not yet discovered
a way to make it go away. We may, in some future time, but it is
going to be here. We have got to handle it, and we have got to dis-
pose of it in the safest and best way we can.

At the point we get to that recognition, somebody, somewhere
has got to be prepared to accept it.

Let me turn from that to more troubling parts of this dilemma.
The public law that we are dealing with has a significant require-
ment in section 117 on consultation with States and affected Indian
Tribes. So we can be prepared, I will ask some of the same ques-
tions of our representatives of the Indian Tribes and Nations that
will soon testify.

255

Let me just read a couple of sentences from it and ask you if the
Department has in fact responded adequately to these provisions in
law. It says at the very beginning:

The Secretary, the Commission, and other agencies involved in the construction,
operation, or regulation of any aspect of a repository in a State shall provide to the
Governor and Legislature of such State and to the governing body of any affected
Indian Tribe, timely and complete information regarding determinations or plans
made with respect to the site characterization, siting, development, design, licens-
ing, construction, operation, regulation, or decommissioning of such repository.

And number (2):

Upon written request for such information by the Governor or Legislature of such
State, or the governing body of any affected Indian Tribe as the case may be, the
Secretary shall provide a written response to such request within 30 days.

To what degree has that provision of the Act been followed? Let's
start with Mr. Eschels.

Mr. Eschels. Between those two parts, our strong preference is
to rely on the first; to have a good interchange of information. To
answer your question, let me give you a specific example.

Beginning as long ago as last May before the decision, we, our
staff, asked the Department of Energy for more specific informa-
tion about just what activities were going to be — what activities
were planned in Washington State for the remainder of 1986.
Recall, now, we first asked that in May.

We had to ask again. We asked more formally. In July, we un-
derstand, the information had been developed by the regional office
of the Department of Energy and forwarded to headquarters. Nev-
ertheless, after repeated attempts we did have to resort to the 30-
day letter. We did send one from Governor Gardner's office to the
Department of Energy, and it took 29 days to get the response.

Senator Evans. How long?

Mr. Eschels. Twenty-nine days.

Senator Evans. To get a response. What was the nature of the
response?

Mr. Eschels. It was a long list of things that said, well, we al-
ready told you that; and, see the appendix. However, if you turned
to the appendix, where we had asked for specific information it was
just — principally, it was generic information. It was not helpful for
the kind of determination that we needed. It was not specific.

It had taken, as I said, eight months to get what should have
been provided early on.

Senator Evans. How about Nevada, or Texas, either one?

Mr. Loux. Senator, in Nevada's case I think we would concur
with the remarks of Mr. Eschels. We in fact have requests for data
in from 1984 which have yet not been fulfilled. We have corre-
spondence and other requests which are some six, eight, nine
months old which have not been acknowledged or responded to.
We, too, have also invoked the 30-day Governor writing to the Sec-
retary provision in the Act, and on occasion it has gone as long as
45 to nearly 60 days before we have gotten a response to a letter
from the Governor to the Secretary.

I guess lastly is our situation with funding. We historically have
had not the ability to get the adequate amount of funds we think
are necessary to conduct our program. The Department of Energy
always would like to give us some money now, and defer review of

256

the other aspects of our grant requests to sometime out in the
future, and it appears, given the announcement that we just heard,
that that in fact is still the case with the Department of Energy
being willing to give us a portion of our grant request and defer-
ring the rest.

But in answer directly to your question, we do not think the De-
partment of Energy has lived up to any of those provisions in the
Act.

Senator Evans. Tell me again the nature of your request. How
much money were you seeking?

Mr. Loux. $10.2 million for fiscal year 1987.

Senator Evans. Just for the record we should note that the re-
quest this year of the Department for Nuclear Waste Fund activi-
ties was something like, what, $780 million, close to $800 million,
and the Department could not afford $10 million.

Texas?

Mr. Frishman. We, too, have had difficulties similar to those you
just had related to you. I think it is important to recognize that the
Act speaks to two real issues. One is timeliness. The other one is
completeness.

Senator Evans. Exactly.

Mr. Frishman. Timeliness is very difficult almost all the time,
and the provisions in the Act regarding timely information can be
satisfied relatively simply if the Department does not care to pro-
vide immediate and direct information. It can tell us when we will
be provided that information, and it is very rare that it is able to
do that even within 30 days.

We have had a number of times when we have raised issues
where, due to the failure of the Department to respond to our ques-
tions, circumstances and departmental decisions have outrun the
vitality of the questions themselves. So we get a blank for an
answer, and we ultimately hear what the Department's determina-
tion is.

In the area of completeness, let me just give you one example
that is of particular concern to us right now. That is, that the De-
partment, even in Chapter 4 of the Final Environmental Assess-
ment, has not provided sufficient information regarding its actual
plans for site characterization for us to be able to fully determine
who the affected private landowners are that the Department now
tells us they want to communicate with next months in terms of
trying to acquire land for activity.

We do not know, through an official Department of Energy docu-
ment, exactly what land they need to acquire, at what time, for
what purposes in Deaf Smith County. We have continually asked.
It is to some extent not a matter of they will not tell us. To some
extent it is a matter of they do not know, either.

But the part that they do know and that they are telling us is
sort of the basis of what we should understand, is a draft contract
of the document that they sometimes accept, sometimes disavow,
depending on particular instances, but this is what the affected
landowners are going to have to deal with. I do not believe this fits
the statutory requirement for completeness of information.

Senator Evans. Would each of you, for the record, submit a chro-
nology of times when you felt that information as required under

257

section 117 was not provided in a timely fashion, or in an incom-
plete fashion, or where there was a response required from the De-
partment within a 30-day period where that response either did not
come within the 30-day period, or if it came it was patently or
grossly unresponsive?

[The information requested appears in the appendix.]

Senator Evans. Let me ask one other round of questions of each
of you, again on the operation of the Act itself. Section (c) of sec-
tion 117(c) requires the initiation toward written agreements, stat-
ing in part that "The Secretary shall seek to enter into a binding
written agreement and shall begin negotiations with each State
and, where appropriate, to enter into a separate binding agreement
with the governing body of any affected Indian Tribe" and then it
sets forth the various elements. These are the consultation and co-
operation agreements.

It is my understanding that at this point, four years after the
Act's passage, that DOE's intent is to begin these discussions not
later than 60 days after either the approval of a site for site char-
acterization, or the written request of the State or Indian Tribe to
the Secretary, whichever occurs first.

Could you tell me a little bit of what has happened? Whether the
State, in any case, has opted to request a written agreement, and
at what time? Or whether there has been any movement toward a
successful response to this provision of the Act? If each of you
could just briefly do it, and then I would ask in the same fashion if
you could set forth for the record a chronology of just what has
been each state's experience for this section.

[The information requested appears in the appendix.]

Mr. EscHELS. Attached to my formal remarks are copies of the
letter from Governor Gardner to Secretary Herrington, which is
his formal response to the request from the Department to resume
the C & C negotiation. I say "resume," because the State of Wash-
ington among the States is the only one that had begun negotia-
tions back in 1983, I believe.

At that time, we were unable to resolve very difficult questions
having to do with nuclear waste liability, transportation, and sever-
al others. For that reason, negotiations were not resumed I believe
in 1984. Subsequent to the May 28th decision, we did receive a
letter, as did the other States, identically worded from the regional
offices. It was a form letter on the last day, again the 59th or 60th
day that was required, and it asked for something that is not exact-
ly what is under the Act.

It said, we the Department are inviting all of you to sit down to-
gether for joint negotiations with us. And our reply was, no, we are
not interested in that.

Senator Evans. Let me interrupt there and ask, in your view
was it necessary in the development of that letter, was the letter
technical enough or in any way detailed enough to require 60 days
to develop?

Mr. EscHELS. No.

Senator Evans. How long would you guess it would take to devel-
op the letter of the nature you received?

Mr. Loux. About a half an hour, Mr. Chairman.

258

Mr. EscHELS. Yes, the drafting itself, perhaps a half an hour;
they will run it up and down the chain for a week.

Senator Evans. But they waited until the last day to send it?

Mr. EscHELS. Yes.

Senator Evans. Thank you.

Mr. Sawyer. Mr. Loux will answer for Nevada. Excuse me, Mr.
Chairman.

Senator Evans. Well, I think Mr. Eschels

Mr. Eschels. Yes, I did want to finish up with that.

The point was, I think they were asking for something that
would not have been helpful toward resolving the problem. They
asked again, I believe in November or December, the answer to
which is appended to the testimony.

What we are saying I think is the same thing that several of the
Appropriations Committees said in the Committee Report accompa-
nying the appropriations. I do not have the exact language in front
of me, but it says the Department of Energy should seek consensus
among all of the interested parties, especially the States.

If anything, we are headed in the opposite direction from that.
That is why the Governor makes the suggestion toward conflict
resolution. We think that fits the spirit of the Committee Report,
and in fact the spirit of the Nuclear Waste Policy Act. We are not
headed in that direction.

Senator Evans. When did you submit that proposal for conflict
resolution to them, or when were they first made aware of that?

Mr. Eschels. Ben Rusche visited Washington State and spoke
with the Governor on December 18, 1986. At that point, we gave
him a copy of what was then a draft suggestion. It was transmitted
formally December 30, 1986.

Senator Evans. It seems to me that this proposal represented a
remarkable effort, under the current circumstances which exist
and the shot and shell in our state that is being fired in all direc-
tions, lower the volume of conflict and really reach out toward
something constructive.

Have you received any kind of response from the Department of
Energy yet on that proposal?

Mr. Eschels. No.

Senator Evans. Thank you.

Mr. Sawyer?

Mr. Sawyer. Senator, Mr. Loux who has the day to day dealings
will answer you.

Mr. Loux. Senator, in terms of chronology, I think we reported
the same events taking place. The first notice we have gotten of
any interest in a written agreement, at least on behalf of the De-
partment of Energy, was the late July letter which Mr. Eschels
mentioned that came on the 59th or 60th day; and additionally, a
letter from the Secretary to the Governor — excuse me, from Mr.
Rusche to the Governor in late November.

The Governor responded at that point indicating that certain ele-
ments of the program he felt were flawed, and in fact illegal, and it
was unconscionable in his estimation to enter into negotiations on
the balance of the program with these other issues hanging which
we believe are illegal at this point, including the siting guidelines,
the environmental assessments, the preliminary determination, of

259

course the issue that you are most familiar with at this point the
second-round decision. As, importantly, the Governor indicated to
the degree that those issues are negotiable with the Department of
Energy, that we would be willing to sit down and discuss those
issues; but to the degree that they are not, then we are not. But if
they get resolved by the courts, by Congress, or by the Department
of Energy, then in fact we may be in a position to sit down and
discuss negotiations.

In addition, the Governor cited the continual and ongoing proc-
ess with our grants, which we have talked about to some degree
already, indicating that that continual process of withholding
money, taking in this instance over four-and-a-half months to
evaluate our grant with no correspondence in the interim, makes
that process even more difficult.

So at this point, he has declined to negotiate primarily based on
those reasons I have cited.

Senator Evans. Mr. Frishman?

Mr. Frishman. We in Texas have the same set of letters, the
July 25 letter, and then the November 20 letter. In our responses
to the Secretary's report that was sent to us, according to the Act,
for review, we noted a number of items. Eventually I think that
will be submitted, if it has not already. It is already outside the 30-
day period for submission.

We noted, among other things, that we received that only five
days before the end of 30 days. So that there was no way we could
have responded and the Secretary reported within the statutory 30
days.

Some other points that we did note was that the report itself
that Mr. Loux referred to as taking maybe a half an hour to draft,
and I agree with him, the notable thing that the report did not do
was the one thing that the Act really requires that it do. That is,
provide the reasons why a consultation and cooperation agreement
had not been completed.

The Act allows the affected parties to be in a position of not re-
questing to initiate. In that instance, then the Secretary has a duty
to initiate. I think you will see in our responses that the Secretary
through his July, or through Ben Rusche's July 25 letter, and
again through the November 20 letter, did not carry out the duty
as required in the Act in any way that could have led to comple-
tion of an agreement, even if all other considerations would have
allowed such an agreement to be completed.

So the duty itself was not carried out in a way that we could
have responded to, if there were even a possibility of arriving at a
completed agreement. Our view of an agreement at this point is I
think similar to others in effect, but maybe not for the same rea-
sons.

We at this point have been informed as of November 20, just 8
days before the close of our 180 days, who the lead negotiator for
the Department of Energy would be if we were going to negotiate I
guess in those last 8 days. We acknowledged that, and said, talk to
us. Well, that has not been initiated formally. We are of the view
that it would probably not be fruitful at this time to begin formal
negotiations for a consultation and cooperation agreement, primar-
ily because we do not know enough about the Department's pro-

260

posed program in Deaf Smith County for us to even be able to
scope what all the topics might be.

At this point, we have agreed that we will defer formal negotia-
tions, although we recognize that some circumstances are likely to
arise very soon that will require some kind of formal agreements
on rather narrowly bounded topics. We will be looking at those,
trying to arrive at some formal agreements, and if you and the De-
partment of Energy want to call that C & C, well, provided they
are reported correctly, we may not contest what you call them; we
see an agreement as being necessary, regardless of how C & C
agreement is defined in the Act, but on very narrow, topical issues
as they reflect and drive the DOE's activities within the States.

Senator Evans. Thank you, Mr. Chairman. You have been most
generous with time, during this series of extraordinarily important
set of oversight hearings. We need to find out as well as we can not
only how well the Act has been carried out, but address this specif-
ic question in the current appropriation act which says that $79
million will be released only upon certification by the Secretary of
Energy that he has made a good-faith effort to comply with precise-
ly the section I have just asked about.

It will be interesting to see whether he will have the bravery to
submit that kind of a request to Congress. Let me say one other
thing, Mr. Chairman, that relates but is not directly associated
with this set of oversight hearings.

I, for one, at this point do not intend — or at least intend to use
all the strength I have to prevent — any more money, the $79 mil-
lion, which incidentally is ratepayer's money, not our tax money,
to be given to the commercial high-level civilian waste when the
Department has done such a miserable job, has ignored the needs
and the fundamental responsibilities to handle the high-level de-
fense wastes on the Hanford reservation. There have been com-
plaints going way back to the early days of my own administration
as Governor, and for which there are yet no real efforts of any con-
sequence to handle that with the technology we have today.

We had better learn how to clean up the existing defense wastes
before we start talking about long-term disposal of civilian waste.

The Chairman. Well, we know how to clean it up. They just
have not.

Senator Evans. That is right.

The Chairman. The problem of dealing with it is not really a for-
midable scientific problem. That is the incredible thing about nu-
clear waste. As a scientific challenge, it is way behind chemical
waste in terms of difficulty, in terms of danger, but not in terms of
politics.

Senator McClure.

Senator McClure. Mr. Chairman, thank you very much.

I want to thank you for scheduling these hearings, and I want to
tJiank the witnesses for being here. I am not at all certain that I
envy you your task in the States that have been identified as po-
tential sites to respond to the political pressures that are very real.

The Chairman made some references to that, and I think this
Committee, in formulating the Act under which we are attempting
to structure a national policy to get some repositories built, recog-

261

nized that if a State can exercise a veto, the political forces are
going to force it to exercise the veto.

I think the reactions in the three candidate States already indi-
cated to us that it is easy to fan the flames of emotion that create
the political heat that make it impossible for you to respond in
much different fashion than you already have.

My feeling w^as, and up until today has largely been, that that is
what we are seeing in each of the States, is the political reactions
that says we do not want it, and we cannot politically say we do
want it or can accept it, and therefore we are going to do every-
thing we can to obstruct the process.

I am convinced, however, from your statements and from the
statements you have made before that there is something more
than just that. I give you, first of all, the caution that I think many
of us recognize, you are in a bind where you have to object and you
are going to, and you are going to erect the best arguments you
can, and we are going to try to sort out of your testimony those
things which are beyond that, legitimate concerns about the proc-
ess as distinguished from the necessary political reaction expressed
in your States that, gee, we do not want it here, and we are going
to try to find the reasons why we should not have it here.

Having said that, each one of you has in your own way, and in
many respects in the same way, said that the process is not work-
ing. You do not have any faith in the process; that the Department
has lost credibility. How many steps backward would we have to
go? How far back towards square one would we have to return in
order to regain the credibility that you say is so badly lacking
today?

Mr. Eschels?

Mr. Eschels. It is a very frustrating experience working with the
Department, and I think I am sensing a lot of frustration among
the authors of the Act and you who oversee the Department.

The difficulty we have I think includes the political situation,
but it also goes ahead of that to look at the technical bases for the
selection of these particular sites for characterization.

Senator McClure. Are you telling me then we ought to go clear
back, ignore the selection of these sites for characterization, and
start over from square one?

Mr. Eschels. No, not square one. What we are

Senator McClure. One-and-a-half?

Mr. Eschels. What we are suggesting is what we call a mid-
course correction. Stay with the fundamentals of the Nuclear
Waste Policy Act. It was well crafted. It was well thought out, and
it was balanced so that it would work — could work, excuse me.
However, the implementation has been such that the Depart-
ment— let me digress for one example.

They put together this big ranking methodology. They brought in
the National Academy of Sciences, one of the world's best Decision
'80 methodologists, and put together as I say a state of the art
ranking methodology. Add to that, as a separate item, they said,
well, we have got to have rock diversity, several kinds of different
rock. Okay, fine.

Senator McClure. That was required in the Act.

262

Mr. EscHELS. Okay, and that was probably wise. So one of the
things they said was, we want to have one basalt site on our list of
finalists, and we want to have one tuff site on our list of finalists.
Great. The problem is, they only put one in at the top, one basalt
site. I do not care how fine your screening mechanism is, if you do
not require that it comes out, it comes out.

What they ignored in the meantime is, to give you an example,
DOE has a model that looks at groundwater travel time to predict
how long it takes. They applied that at Hanford and it took 22,000
years from the repository site to get out. In the Mississippi site it
took 35 million years. We think that is a significant difference. The
Department does not think that is a significant difference: 22,000/
35,000,000.

That is an example of why we do not have any confidence in the
technical bases.

Senator McClure. So you would go back before the site selection
and start all over again with a nationwide site selection?

Mr. EscHELS. Before the site selection process. Put it on a techni-
cal basis, and continue with the foundation of the Act.

Senator McClure. In other words, pick up right after the pas-
sage of the Act, and scrap everything that has been done since
then and go back and start the process all over again. Now that
may not be square one, but it is so close to it I can scarcely see the
difference.

Mr. Sawyer?

Mr. Sawyer. Senator, I would agree generally with that state-
ment. The first real major flaw in the program, we believe, was in
the siting guidelines. The siting guidelines selected Nevada and
Washington. They said, you need one basalt site, you need one tuff
site, we are the only ones.

So there was no comparison there. We think that was the first
major defect, and we think it should go back to that point and try
to find the best site, not

Senator McClure. You could not accept a process that took that
as a given, and built on that?

Mr. Sawyer. You mean that siting guideline?

Senator McClure. Yes.

Mr. Sawyer. No, because it is a preselection, we believe, and I do
not think it should be that way. I think we want to find the best
site.

Mr. Frishman. I agree that is the position to begin, and I really
disagree with your implication that we have been wasting our time
and money right now. I think we right now, collectively, those of us
who have been involved in this very rigorously full time, I for one
full time for over five years now, I think we have the capability to
go back and take what we know and write some technical site se-
lection guidelines as in 112(a) or as 112(a) expected, and write them
in a way that in fact are designed to screen the Nation's geology
for excellence as opposed to the way they are currently written,
which is to protect sites that the Department of Energy already
thought and were committed to; also, that will be very sensitive to
the types of socioeconomic and environmental concerns that we
have become much more knowledgeable in over these last five

263

years, and particularly are sensitive to the types of things that we
have learned are probably necessary to house a repository.

We have learned a lot. We are not throwing everything away if
we go back, develop very rigorous standards, screen the entire
Nation, and try to get back to where we are right now. I have I
think in similar questioning over the last two years with this and
other committees, I have estimated it would take approximately
five years to go through that process.

Ben Rusche I believe at this table not too long ago was asked a
similar question and gave approximately five years. Also, if you
look at the expenditure of the program under the Act so far, we
are probably in the realm of about $900 million right now, maybe a
little bit less than that. A lot of work has been done, and a lot of
funds dedicated to work other than the site selection process.

So if you started carving down how much money has a potential
to have been wasted, if we go back and really started at square
one, not forgetting what we know about these sites, but putting
them in a realistic screening method, it could be a few hundred
million might be subject to waste, but at the same time we have
learned a lot out of those other than just saying these are the three
sites.

Senator McClure. But in terms of the process, you would go
back to that point which is the beginning of the process?

Mr. Frishman. Correct.

Senator McClure. Even though we may have learned something
to make it work better, that is where you would go back to start?

Mr. Frishman. Correct.

Senator McClure. I would point out of course that if I were from
a State that had already been selected, that is where I would want
to start, too, so that the 47 other States got back in the mess.

Mr. Frishman. Well, may I suggest that

Senator McClure. And then you would have a chance to get out.
I do not say that unkindly. I think I understand the political impli-
cations and the political difficulty, and you may even be right. But
I am not certain that you are right.

At the hearing before our Committee in September of 1985, that
is right after the first Mission Plan was adopted, many of you ex-
pressed concern that the compressed schedules listed in the Mis-
sion Plan had caused you to lose confidence in the program. Now
the revised Mission Plan has extended those timetables. Has that
caused you to get any more confidence in the schedule, or in the
program?

Mr. EscHELS. Senator McClure, if we believed that we were
making progress, that might be true. I think what we are doing is
simply stretching out the fight. We are building an entire reposi-
tory program to dispose of national waste on a foundation that will
not support it.

Senator McClure. So even though there is greater time, it does
not give you more confidence in the program?

Mr. EscHELS. That is right. Look at the consequences, if you will.
This process is headed toward the cliff. It is going to go over. We
will have wasted all of the money that we have put into it so far,
and we will have wasted perhaps another billion dollars or so more
while the courts — until the courts send it back.

264

Rather, we are proposing that we go back only part of the way.
Furthermore, do not just go back and stop; go back and put it back
together so we do not have a shambles. Bring in all the parties in
interest, those who can trip up the process down the road so that
you have got concensus. That, as far as I know, is the only thing on
the table which is other than this kind of confrontation which will
not lead us to a repository.

Senator McClure. Governor Sawyer?

Mr. Sawyer. I will let Mr. Loux handle this.

Mr. Loux. Senator, I think that we view the schedule slippage
with the same degree of skepticism Washington does. Getting back
just a little bit to your previous question, under the siting guide-
lines, should they have been developed on a sound, technical basis
utilizing the criteria that you carefully laid out in the Act citing
that geology should be primary, I do not believe that any one of
these three sites would be sitting here at the table today. I do not
think they are qualified.

But beyond that, schedule delay in my estimation, more time and
more money thrown at these sites, is not going to make them look
better. I think in fact we are just going to discover further techni-
cal defects in the sites as we go along. Schedule slippage certainly
does not give me greater confidence in the process.

Senator McClure. Mr. Frishman?

Mr. Frishman. We are in essentially the same position. I think
you will note a comment similar to what you just heard within
Governor Clements' testimony.

We are interested to see that the Department finally recognizes
that it just physically cannot accomplish what is necessary even at
minimums if they stuck to the schedule of the Act any longer.

We still are in the position that, first of all, the program has suf-
fered tremendously because of the dogged adherence to that date
for so long, and the determinations that were made of what would
be sacrificed in order to meet that schedule.

Now there is sudden relaxation. The promises are that the world
is going to get so much better; but, just as you have heard, given
the problems with the sites, more time, more money does not make
an unacceptable site an acceptable site for licensing.

Senator McClure. Just one final comment, and then I will yield,
but I have some other questions which I may submit for the record.

Mr. Eschels, your comment about one parameter reminds me of
one thing. That was, you were talking about the difference between
22,000 years and 35,000,000 years, and whether or not there is a
great difference. Obviously there is great mathematical or numeri-
cal difference between those two figures, but is it a significant one?

If I recall correctly, the Colorado River Basin has within it a lot
of natural uranium deposits. I think there are some in the Colum-
bia Basin, as well. I know there are some in the Columbia Basin,
both thorium and other rare earths in particular. After 600 years
in a repository, these wastes will be at the same level of radioactiv-
ity as the natural uranium deposits that occur in much of the Colo-
rado Basin— 600 years, not 22,000 or 35,000,000.

We do not have any man-made structures that are that old in
this country, but there are structures that old in Europe, in the
Middle East, in China, and the Far East, structures that have been

265

around for many times longer than 600 years with structural integ-
rity.

I do not think it is beyond the realm of reason to believe that we
can give reasonable assurances to the American public that we can
build structures with structural integrity for the next 1000 years,
let alone 22,000 or 35,000,000; but maybe, indeed, we are over-react-
ing to the long-term problem that may not exist.

Maybe what we ought to do is just go out in the middle of one of
the uranium ore bodies and plunk the stuff down there, and 600
years from now you will not be able to distinguish it from the rest
of the stuff.

I do not know. I just simply put it out there simply because it
seems to me when we start talking about these long timeframes,
we are talking about things that really do not have the relevance
that many people attach to them. That is not a scientific state-
ment, I know, although it is based upon statements made to me by
scientists.

Somehow, we have got to get this back into a reasonable context
of what the alternatives are. I do not blame you for wanting some
other State to be looked at. Maybe you are right. Maybe you are
right, but at some time this Nation has to make a decision, and at
some time we have got to make a decision that we stick to and that
is credible.

Now if I just look at the NEPA process on site characterization
criteria, you tell me how you are going to be able to go into court,
if you were DOE, and say we have looked at every other alterna-
tive in the United States, every other one, without exception? You
do not have enough scientists and enough manpower and enough
money to do that to the satisfaction of some of the courts, no
matter how much time or money we spend.

Now maybe we have to take another look, and we are doing that,
and I think it is justified, but there has to be some reasonable
limits on this program. There has to be some reasonable trust.
Maybe the Department has not justified it or acted in such a way
as to encourage it, but maybe too we see an action on the part of
some who just say I do not like it, I do not want it, it is not going
to happen.

I suspect we have got at least a fair measure of that, not from
these witnesses here, because I think you are all doing your very
level best to tell us what you need; but what the Nation needs is a
decision sometime in a predictable timeframe.

Thank you, Mr. Chairman.

The Chairman. Thank you. Senator McClure.

We are glad to welcome Senator Brock Adams here from the
State of Washington, who is not a Member of this Committee, but
he has got a vital interest in this subject and we have invited him
to participate.

Senator Adams.

Senator Adams. Thank you, Mr. Chairman. I appreciate the
Chairman inviting me, and I particularly appreciate having the op-
portunity to question. I will be very brief, because most of the ques-
tions have been covered.

But I would like to follow through on the Chairman's direction of
what specifically in this first site selection process is wrong, and

266

what the Committee, the Senate, and the Congress might be able to
do to correct it.

With that, Mr. Eschels, I would like to ask you first three ques-
tions on these C & C agreements, because apparently they are not
moving under the Act, and I am concerned that they are not going
to move at all. Then I want to move to your proposed solution, and
then join with my colleague from the State of Washington in deter-
mining whether or not more money should be put into a process
that is not moving.

My three questions are:

First, did you ever have a proposal in the stage where it was pre-
pared to be signed for a transport system that would support these
repository sites?

Let us start first with you, Mr. Eschels, and then Governor if you
wish to comment, and then the witness from the State of Texas.

Mr. Eschels. No, we did not.

Senator Adams. You did not. You have never had a way of get-
ting it in and out of the repository site as any type of agreement
similar to, for example, what has been done in South Carolina?

Mr. Eschels. No. We have been working with not only the Office
of Civilian Radioactive Waste Management, but also the Office of
Defense Programs in the Department of Energy, but we do not
have that either as part of the C & C process or separate from it.

Senator Adams. Second, did you ever arrive at either a resolution
or a definitive package of liability for accidents in transport or at
the site?

Mr. Eschels. No.

Senator Adams. Governor?

Mr. Sawyer. The answer is no to both questions, sir.

Senator Adams. Do any of the other witnesses wish to comment?
The representative from Texas?

Mr. Frishman. I agree that on both of those, the answer is no. In
the transportation area, the major questions involving transporta-
tion right now, the key issues as the Department relates its rather
vague schedules to me, the key issues are not even intended to be
resolved until around 1995 or sometime after regarding mode of
transportation, routes, and so on.

As far as liability, the Congress will I believe again this session
take up that issue. The Department of Energy has discussed it with
us and have been uniquely unhelpful in our positions.

Senator Adams. Thank you, Mr. Frishman.

The next question that I have is: You have made a proposal on
behalf of the State of Washington, Mr. Eschels, to in effect move
the process, not the policy — which as I understand it all of you
have testified that you understand the difficulties with changing
the policy, the exact statute — but moving the implementation of
first the C & C agreements to in effect an outside agency with a
resolution type person to sit over this and to try to get DOE to
move forward so you might get some C & C agreements. Is that the
Governor's proposal?

Mr. Eschels. Yes, but it will take more than the Department to
move. I think everybody who has an interest has to come in and
see that that interest is met.

267

Senator Adams. In other words, this is your positive suggestion
to the Committee of how to move forward the C & C agreements
which, as I understand it, all three of you have testified are at dead
center at this point?

Mr. EscHELS. Yes. We are unable to go forward with the C & C
past the May 28 decision because of the legal problems, the techni-
cal problems, and the policy problems. My fear, and the reason we
are putting this out, is without the pause, without the conflict reso-
lution, we will in fact go to what Senator McClure called "square
one," and perhaps beyond that, backwards.

Senator Adams. I see. Is it the opinion of the panel that the ap-
propriation of additional money into this process will spend more
time in reports and so on, but that there is very little chance of
movement at this point without some outside influence coming into
the process other than the Department of Energy? Is that correct?

Mr. EscHELS. Yes.

Mr. Saw^yer. Yes.

Mr. Loux. Yes.

Mr. Frishman. Yes.

Senator Adams. Do all the members of the panel agree to that?

Mr. EscHELS. There has to be a change in attitude on the Depart-
ment's part.

Senator Adams. Now when the Secretary was here he lamented,
and maybe with some justification, that people in his Department
did not like handling this matter, and I think he mentioned going
to New Hampshire, and so on. Would you support the placing of
site characterization as well as these C «fe C agreements which we
have just gone through under an independent group outside of the
Department of Energy, leaving the Department of Energy person-
nel perhaps to carry out the technical work?

Mr. EscHELS. The objectives of the process that we are proposing
are directed toward solving the near-term problem that the utili-
ties have, and solving the Nation's long-term problem. The process
of conflict resolution I think can address that question, and should.
So it is not a requirement; it is also something that is not a neces-
sary ingredient.

Senator Adams. I am concerned, and this goes to the specific
facts that the Chairman mentioned on this site selection system,
and it follows on with whether or not there should be a different
way of implementing a policy and technical site selection system by
somebody other than DOE.

It is my understanding that prior to the May 1986 decision that
DOE itself issued stop-work orders in Nevada and Hanford because
it was having so much problem collecting data. Is that correct?

Mr. EscHELS. Yes.

Senator Adams. From Washington. From Nevada?

Mr. Sawyer. That is correct; yes.

Senator Adams. Well, now, if this happened, is that stop-order so
far as you know still in effect?

Mr. Eschels. Yes.

Mr. Sawyer. It is still in effect.

Mr. Loux. Part of it is still in effect, yes.

Senator Adams. So we are in the process, if we put more money
into this, of dealing with (1) no agreement with the States; and

268

second, with DOE proceeding ahead with simply momentum on the
site characterization in these areas, as opposed to collection of data.
Is that correct?

Mr. EscHELS. Yes.

Mr. Sawyer. I would say that is correct.

Senator Adams. Now I am concerned about the fact that the
money that is going to be appropriated for this is going to be sub-
stantial. Is it not correct that the site at Hanford was by a quan-
tum degree the most expensive site for selection?

Mr. EscHELS. By several billions of dollars, yes.

Senator Adams. Now that partially is a result of the fact that
there is a significant groundwater problem and already contami-
nated area. Is that correct?

Mr. EscHELS. Yes, it is.

Senator Adams. Has there been a recent report, or have you had
a recent series of meetings with the Department of Energy for the
handling of both groundwater and defense waste that gives you
any different statement on the amounts that would be required for
characterization of that site?

Mr. EscHELS. No, I do not have that information.

Senator Adams. In other words, we have been talking I think
about a billion dollars for site characterization there, have we not?
That that has been indicated by DOE?

Mr. EscHELS. Oh, in round numbers, everyone refers to site char-
acterizations as a billion dollars per site. But even within charac-
terization, it costs much more to characterization Hanford than it
would the other sites on the list, partly as you pointed out.

Senator Adams. That was what I wanted to know. You had no
more recent figure.

Governor, do you have a more recent figure for Nevada, or are
you still dealing with a round number of a billion dollars? And Mr.
Frishman, the same question.

Mr. Sawyer. Mr. Loux will comment on that. Senator.

Mr. Loux. Senator, we are still looking at the same sorts of num-
bers. We note that our review of the Environmental Assessment
and related documents related to costs shows a number of discrep-
ancies where in fact it looks like cost information may be included
in the data that was manipulated in this whole process. There
looks to be some wide discrepancies in numbers that do not seem to
be justified, but, yes, I think that is the case.

Senator Adams. So we do not have at this point from any of the
States a definitive either agreement or receipt of information from
DOE of the costs for the individual sites for characterization?

Mr. EscHELS. No. That is one of the things that we were asking
for for those seven or eight months. I would indicate that in the
draft Mission Plan, just as an aside, there is a change at the Han-
ford site in the two shafts which are planned to be excavated there.

The earlier Mission Plan indicated those would be six-foot diame-
ter shafts, each. In the draft Mission Plan I am told that one of
them will remain at six feet. The other would be changed to 10 or
12 feet in diameter, at least in part because of concerns with meth-
ane gas at depth. That will change the cost, but we do not know
how much, yet. We have asked questions not only about the costs,
but also about what does this change mean about the Hanford site.

269

Senator Adams. I guess the point is that you are not and have
not as a State agency and as the Governor's office and the others
nfn"Hf''r^^J '"^r "^^^T ^^"T^^^ d^^^ °" the methane gas which

Ms othP^t^ '' *''^^'^- ^^ '""'l^'^ ^^^'^' th^ ^^^if^^ a^d the size of
tnis, other than very informal contacts'?

Mr. EscHELS. That is correct

Senator Adams Is that correct? In other words, there is no
formal exchange of data at that point*?
Mr. EscHELS. That is correct.

th?sTip^n''^^';w 11:-^ T""^ ^^ J°^" ^^th the senior Senator from
the State to say that this Senator and all others that we can simi-
larly persuade will certainly be fighting in the AppropriktZs
process before placing huge amounts of money into thS^ pmcess
where we do not know, and have no information from the States
involved, as to what the Department is going to do

ina fhi?^ '^'{?u''"' ^""^ '^•^'^^ ^°^^d ^^ther respond to it in writ-
^nL f '^''''l'^ \ appropriate as far as I am concerned, is your
suggestion as to what type of an outside agency should ovekee and
what type of powers it should have for carrying out the site set?c
tion process over the Department of Energy and the obta ning of
characterization agreements. It seems to me that that is what has
been suggested, and that is what is being sent back to the Depart
ment of Energy; that there is no longer any confidence in the
manner in which this policy is being carried out, and that we have
to have someone else in this process

fine"? if nnt^'^T ^PP^f ^^^e, if you wish to make any comments now,
to the panel ^""^^ '^ '" '^'^^^^^- ^^^^ '' "^^ ^^^^^ ^^^^tion

fV.^^'fif ^^'^'''^^- .^^ """^^ comment is to reiterate what I said before
that the present course of the process I believe will not lead to a
repository in his country. Rather than allow that to happen and
rather than allow two more years, and perhaps a billion do^fars of
ratepayer money to be wasted, we should pause in the process go
back far enough to get it back on track without undoing whS wis
mfri^"^^^^^^^^^^ ^-^- - ^he Nuciar WasS

thft-- "" ^''^''^ [presiding]. I think it would be helpful to have

h J^rI'' "^"^r- ^ ^i''^^ "^^th that, that it would require a going
back. Because from what you have testified, it is the implementa
tion of the policy that has occurred almost from day on^ anTthat
there is not any point in putting any more money fnto laving The
Department of Energy fight with all of you, and slide guidelines

premenTation of ^th";'^ ? "^^^l^^tic policy and a nonrealistic "S
piementation of the policy, this program will not only have been

&at the IITJ?^ r.^?' \l' '^^'^ ^^11 "«t be any sign!fican"
hope at the end of that delay that we really have in place what is
necessary as a solution to the waste.

• ^^^J^tor Evans We would appreciate any further details in writ-
ing that you would submit.

[The information requested appears in the appendix.]

Senator Evans. I notice that there is a vote call. The Chairman

tim7nriTh?nl' T'i" ^vf '^""^^^^ panel very much for your'es
timony. I think it has been extraordinarily helpful in this over-

270

sight, and in guidance to us in the next steps that we as a Commit-
tee and the Congress must take.

I will call for a temporary recess of the Committee until the
Chairman returns, but the next panel should be ready to proceed:

Mr. Melvin Sampson, Chairman of the Yakima Indian Tribal
Counsel; Mr. Dei White, Chairman, Nez Perce Tribal Executive
Committee; and Mr. Louie Dick, Jr., Chairperson of the Advisory
Committee of the Nuclear Waste Study Program, Confederated
Tribes of the Umatilla Indian Reservation.

If you three gentlemen will be prepared, we will resume as soon
as the Chairman returns.

[Recess]

The Chairman [presiding]. The Committee will come back to
order.

We would now like to welcome the representatives from three
Indian Tribes, Mr. Melvin Sampson, Chairman of the Yakima
Indian Tribal Council, from Toppenish, Washington; Mr. Del T.
White, Chairman of the Nez Perce Tribal Executive Committee in
Lapwai — do I pronounce that correctly? — Idaho; and Mr. Louis
Dick, Jr., Chairperson of the Advisory Committee of the Nuclear
Waste Study Program of the Confederated Tribes of the Umatilla
Indian Reservation in Pendleton, Oregon.

Gentlemen, welcome.

Mr. Sampson, please begin.

STATEMENT OF MELVIN R. SAMPSON, CHAIRMAN, TRIBAL COUN-
CIL, YAKIMA INDIAN NATION, ACCOMPANIED BY RUSSELL JIM,
MANAGER, NUCLEAR WASTE PROGRAM. YAKIMA INDIAN
TRIBAL COUNCIL; AND DEAN TOWSLEY, LEGAL COUNSEL OF
DISTRICT, YAKIMA INDIAN TRIBAL COUNSEL

Mr. Sampson. Thank you, Mr. Chairman.

For the record, I would like to offer that I have submitted a
longer verse of our testimony here that we are presenting, and I
will proceed with a condensed version of our presentation.

My name is Mel Sampson. I am Chairman of the Tribal Council
of the Yamima Indian Nation, and also the Chairman of our Haz-
ardous Waste Committee. And I would like to point out that I have
accompanying me here today Mr. Russell Jim, who is the Manager
of our Nuclear Waste Program; as well as Mr. Dean Towsley, who
functions in a legal capacity here within the District for our pro-
gram.

When Congress passed the Nuclear Waste Policy Act, it required
extensive consultation and cooperation between the implementing
Federal agencies and the affected Tribes and States. It required
those agencies to take the concerns and views of the States and
Tribes into account to the maximum feasible extent. The explicit
purpose of these requirements was to promote public confidence in
the integrity and competence of the program.

Today it is beyond question that the Department of Energy has
utterly failed to inspire confidence in its program. How can there
be any public confidence after revelations of internal DOE docu-
ments clearly revealing the baldly political basis for the postpone-
ment of the second repository siting process?

271

How can there be any public confidence in DOE's program after
the revelations that showed the manipulation of the site selection

FoTfn [h^rtliTn^r^^^^^^^ ^" ^^^^^ '^ ^^^' ^^^ ^^^ ^^^^' hLT'
hJf^^ Department's documents acknowledge the last-place showing
by the Hanford site but brushed it off as insignificant. But eaX?
mternal drafts of those documents show that Hanford's infeHor ty
was not deemed insignificant by the technical experts who actual y

the ^LTrTT""^"- ^^^'% ^r^'Z ^^^^^^ repeatedly conclude tha^

Thirfrlt h ^^"^^%^;j ^^«t ^nder all reasonable circumstances.

Ihere can be no confidence in the integrity of DOE's decisions

when the very decision analysis expert who assisted DOE in ddng

Its comparative assessment publishes a paper refuting DOE's con

ThatTxner't It^'tlT'^ °' ^^' """^^^^ '^'' '' insignificant.
Ihat expert Dr Ralph Keeney, demonstrates that the value of the

amou"^? r denved from characterizing the Hanford site can only

,Tr i ^ !?^ H^}''''' °f ^^^ ^°«t «f characterization, even
under the most favorable assumptions

N^^rnn^^^'Af f '^ ''' Pl^ision Science who was a consultant to the
National Academy of Sciences Board on Radioactive Waste Man-

feh^h^t ^L'^'^^rVTu"^ ^^F' ^^^^^i«" 1980 Methodology ako
felt that the results of the analysis were abused by DOE in reach-
ing the decision to include the Hanford site. DOE is asking us to
Ignore the results of its comparative analysis which indicates Han^
ford IS the wors site under consideration/and to accept instead the

suftabUirrt^'f f^^ ^^f^^^ded determination that the site is
suitable in an absolute sense.

in'^DOF't *,^^^. ^PPOfte of a conservative approach. Our confidence
in DOE s claims of suitability must be considered in context We
cannot consider the Department's actions in the civilian waste pro

us'Sr^he tS'?. ''''^ "f.' its predecessor agencies have assumed
us tor the last 43 years that its operations at Hanford have not
been environmentally damaging or hazardous.

,-^^1^ ' "^S,^^^^ been barraged in the recent months with a seem-
DOF'.'intf '^'''' "^ frightening revelations about decadesTf

?v^?40 ve^ifnf^'''^':;^^!?-^^^ ^"^ '^^^^y P^^^^i^es at Hanford-
over 40 years of accidental/intentional releases of large quantities
of radioactivity to the earth, to the atmosphere, and to the waters
tr\'ctoTs's'ti]lT.^f to the Yakimas. We have lea;ned that DOE con
the N refo Ir 1 f^^^^^ radioactive primary coolant water from

We havP h«H ^'^^'^ .P?""^" "^h^ ^^^^ ^° ^he Columbia River.

We have had our worst fears confirmed about DOE's intentions
concerning deposition of 149 leaky single-shell tanks of high- evel
twff T^^^^l ""^T^^ ^hat they want to leave the remains of
positorvtr/f'' ^here they are, a permanent high-level waste re-
pository just a few feet below the surface of the ground, and iust a
few miles from the Columbia River ^

23!oS'o^canrs?e'rs'^^' '^" ^^^ '^"^'' ^' ^ ^"^erstand, is equivalent to

nn!^S-^f^''l-^^'°^^^^''''^'^ ^hat the N-reactor at Hanford has numer-
ulsR «nH^^'f^" similarities to the Chernobyl Reactor in the
u.&.h.K., and that consultants hired by DOE to review the plant
recommended drastic safety improvements or immediatl shutdown

272

of the plant; and that DOE has decided to disregard the most im-
portant of those consultants' recommendations.

We have further learned that DOE's enforcement of safety meas-
ures of its PUREX plant at Hanford are so lax that vital regula-
tions have been violated regularly. We have learned that DOE con-
tractors temporarily removed signs warning of roadside contamina-
tion at Hanford when the Governor of the State of Washington vis-
ited the site. DOE vigorously resists the application of Federal and
State environmental protection laws to its facilities.

Finally, we have been alarmed by a whole series of GAO reports
harshly critical of the environmental practices at DOE's facilities
all over the country, and particularly at Hanford. The agency re-
peatedly demonstrates a reckless attitude about its assumed privi-
lege to abuse the Hanford environment. DOE acts as if Hanford
were a permanent national sacrifice area to be despoiled as the
agency sees fit, or finds it convenient.

After this sorry history, how can the Yakimas, who hold that
land and that river to be sacred, take any comfort in DOE's empty
assertion that Hanford is suitable for a repository? Last week DOE
announced that it was extending the deadline for operation of a
first repository from 1998 to 2003. As a policy matter, we support
this change as a long necessary concession to reality. However, this
latest adjustment is very different from the Department's postpone-
ment of the second repository siting process.

A five-year relaxation of the deadline for the first repository is
within the range of the slack that Congress has allowed the De-
partment from the beginning of the Nuclear Waste Policy Act im-
plementation. It is an improvement in the balance between the
Act's deadlines and the need for technical excellence and meaning-
ful consultation and cooperation with Tribes and States.

In sharp contrast, the indefinite postponement of a second reposi-
tory siting activity is a clear violation, in our opinion, of the con-
gressionally mandated progress toward finding a second repository
site.

The Nuclear Waste Policy Act plan has not been followed by the
Department of Energy, and today the program is in shambles. As a
result of the agency's blatant political manipulation of its decision-
making process, the credibility of both the Department and this
program are nonexistent. The Department has failed in the Act's
objective of dealing early and meaningfully with the concerns of
both the States and the Indian Tribes.

Although DOE has awarded millions of dollars to States and
Tribes to cover the costs of their participation in this program and
spawned a great number of largely unproductive meetings, the De-
partment has not dealt meaningfully with the concerns of the
States and the Tribes. DOE has turned a deaf ear to other Federal
agencies and Congress.

When the Nuclear Regulatory Commission submitted comments
on the final EAs to DOE recently, the main message was that most
of its draft EA comments still applied. When the NAS Board on
Radioactive Waste Management recommended twice that the De-
partment should involve outside experts in its Decision '80 method-
ology, DOE refused. Just last week, after every Member of this
Committee expressed his conviction that DOE lacked the legal au-

273

^^Ta/ ^S postpone' second repository siting, Secretary Herrineton
and Mr. Rusche still insisted to the contrary

Our written testimony discusses DOE's illegal postponement of
the second repository siting process, and distortion of the first re-
pository site selection process in considerably greater detail than I
have time for today. There is one aspect of that decision which I
wish to bring to your attention, however.

In one of the three crucial manipulations which enabled DOE to
Keep the Hanford site in the running was to completely ignore cost
considerations in clear violation of the Act. A Hanford repository,
according to DOE s projections, would be over $5 million more
costly than the other sites. To avoid the consequences of this fact
DUE simply asserts that costs are not important. But the Depart-
ment takes exactly the opposite approach to cost considerations
when considering options for disposal of its Hanford defense high-
Z.t ^f ^.t^here the agency seeks to justify its desire to exempt
TWo nA^ "^^^^t ^J°T ^^^ repository disposal requirement.
Ihere DOE seems to feel that cost considerations are extremely
important. cmcij^

What justifies this radical difference in the treatment of these
two crucial matters? What should be done?

This program has been so fundamentally compromised by DOE
that It is now dead in its tracks. Futile attempts to continue on the
present course will only result in much more time and monev
being unnecessarily wasted. We feel that the Act itself already
otters a mechanism for the necessary rethinking

bection 303 of the Act requires the Secretary to undertake a
study of alternative approaches to finance and manage civilian ra-
dioactive waste facilities. The panel, of which I was a member, pub-

,1 AA/iA?^Tl^P°/^ '"^ December of 1984, commonly referred to
as the AMFM Panel, which was not notable for a lot of nuclear in
dustry of DOE critics, and concluded two years ago that the De-
partment of Energy s credibility and organizational flexibility and
stability problems in this program were probably insurmountable.

Kather than sacrifice the program to those problems, the panel
concluded that the site selection process could be enhanced and
made more credible by the use of a special advisory siting council
comprised of representatives of all legitimate stakeholders ''
l.i i'^ no surprise that the Department of Energy did not exactly

^^y^i «.. '.-''^Pk'^-.i^^^'' '^ ^^' completed, it was never given
much attention by the Congress. We feel Congress could do much
worse than to retrieve that report from its dust on the shelf and
seriously consider what the panel had to say two years ago

Ihe ensuing two years have only affirmed the AMFM Panel's
conclusion that DOE does not have what it takes to implement this

niof ?"'vf''''''T^''y^- 7^^'^^ ^^^ ^P^^ific recommendations probably
need to be updated, there is still much to be gained froni the re-
port s analysis and conclusions.

.hlnf''?i?f nnS?' .the Yakima Indian Nation is gravely concerned
about the DOE s implementation of the Nuclear Waste Policy Act.
Ihrough pohtical maneuvering, DOE has mangled the Act's objec-
tives of inspiring confidence in its program in locating two safe and
suitable places m which to bury this Nation's waste. We trust that
you will use the testimony presented today to get the program back

274

on track, and I want to thank you for this opportunity to make this
presentation, Senator.
[The prepared statement of Mr. Sampson follows:]

275

UNITED STATES SENATE
COMMITTEE ON ENERGY AND NATURAL RESOURCES

Hearing on the Status of the
High-Level Radioactive Waste Disposal Program

February 4 , 1987

STATEMENT

MELVIN

R. SAMPSON

TRIBAL COUNCIL

CHAIRMAN

BEHALF OF

THE

YAKIMA INDIAN

NATION

Mr. Chairman, members of the Committee--

My name is Melvin Sampson. I am Chairman of the Tribal
Council and Chairman of the Nuclear and Hazardous Waste Committee
of the Yakima Indian Nation. I have also served on former Energy
Secretary Donald Hodel's Advisory Panel on Alternative Means of
Financing and Managing Radioactive Waste Disposal pursuant to
section 303 of the Nuclear Waste Policy Act, and on the State of
Washington Nuclear Waste Advisory Council, a citizens' panel that
advises the St ate- Nuclear VJaste Board and the governor on nuclear
waste issues. On behalf of the Yakima Nation, I wish to thank
you for this opportunity to address the Committee once again
about the status of the federal high-level nuclear waste disposal
program.

The Yakima Nation is an affected Indian tribe with respect
to the proposed Hanford repository site in ivashington State. The
Yakima Indian Reservation is thirteen miles from the Hanford Site
at the closest point, and most of the Hanford Site is on Yakima
Ceded Lands. Under the Treaty of 1855 the Yakimas retain hunt-
ing, grazing, and food gathering rights on those Ceded Lands and
fishing rights at usual and accustomed places on the rivers and
streams which pass throug,h them, including the Columbia and
Yakima Rivers. It is on the basis of these treaty rights that
the Secretary of Interior determined in March of 1983 that the
Yakima Nation is an affected Indian tribe under the Nuclear Waste
Policy Act, and found that these treaty rights would be affected
by the location of a nuclear repository at Hanford.

When Congress went through the arduous process of fashioning
a comprehensive plan for resolution of the nation' s long-standing
nuclear waste problem, it explicitly recognized that past federal
efforts in this area had been inadequate. Congress also recog-
nized that the primary reasons for the failure of earlier federal
efforts was failure on the part of the federal governm.ent to
seriously deal with very real technical questions about the
geologic adequacy of prospective repository sites, and failure to
address the concerns of state, tribal, and local governm^ents in
the repository selection and development process.

276

Congress addressed both of these historic failings in fed-
eral nuclear waste managerr.ent efforts when it passed the Nuclear
Waste Policy Act in 1982. The question of site suitability was
addressed by the requirement that- sites for potential
repositories be selected on the basis of technically-grounded
siting guidelines, and that the primary criteria for the selec-
tion of sites must be "detailed geologic considerations." The
issue of state and tribal government involvement was addressed by
one of the most elaborate participation schemes ever devised by
federal statute.

Congress required extensive consultation and cooperation
between the federal agencies and the affected tribes and states,
and required those agencies to take the concerns andviews of the
states and tribes into account to the maximum feasible extent.
The explicit purpose of these requirements was to promote public
confidence in the integrity and competence of the program. Con-
gress wisely acknowledged that it was essential to enable the
states and tribes to be involved meaningfully in the implementa-
tion process from the beginning, in the hopes that their concerns
would be addressed in a meaningful way, thus reducing the
likelihood the program would be thwarted by political opposition
and desperate litigation on the part of frustrated and ignored
state and tribal governments.

From the im.plemientation of the Act to the present, however,
DOE has constantly chipped away at the Act's ir.andate for
meaningful dialogue between DOE and the affected states and
tribes in order to instill confidence in the nuclear waste
disposal program. Today, there can be no question but that the
Departm.ent has utterly failed to inspire confidence in its
program. How can there possibly be any public confidence after
revelations of internal DOE docum.ents clearly revealing the
baldly political basis for the postponement of the second
repository siting process? The Department obviously decided
that it was worth engaging in an "obvious political ploy", and
"demonstrating the success m.ode of resistance", in order to
obtain "imm.ediate political relief" from eastern and rnddwestern
s tates.

How can there possibly be any public confidence in the
integrity of DOE's program after the revelations, that showed the
crass m.anipulation of the site selection process for the first
repository in order to keep the worst site--Hanf ord--in the run-
ning? Even doe's analysis shows the marked inferiority of the
Hanford site compared, to the others. Tne Department's final doc-
uments acknowledge the last-place showing by the Hanford site,
but casually brush it off as insignificant. But earlier internal
drafts of the Decision Aiding Methodology and the Recommendation
Decision--found in DOE's files by the V,"eaver-Markey investigation
after DOE repeatedly denied to Congressional committees that such

277

inaterials existed--show th^h Har,f^.-^i„ • ^ ■

-insi,ni,ie.„t .y the tLhllfcafL'p 'tl ;So"c?;:5L"5L"?J '"•"'

irients, the Weaver-Ma rkey report revef Is! ^^ency's final docu-
There can be no confidence in the inteqritv of nnr-e a ■

review of DOE's Decision Aiding MethodoiooJ nr n^^^f^
another letter ^eaffuS, h^^vU" th" JheaniJCsif .?'",>'"

He sent yet
--^^^.„...,y ,,j.3 View cnat tne anslys-"

Janford Sitp chrMii,^ r,^*. i i

characterization.

DOE is asking us to ignore the results of its comcarativp

er^ L'^'and to '""^'T' "^"'^^'^ ^= ^^^ ^^^^ =ite unS^^oi^tc
eration, and to accej^t instead the- aq^ncv ' s DrP-;=.^nr= ^^^

'iTl.V!^' l^J. -^^ - "suitable" in'l^.rtslllltTeZV''^''''''''-

eration, and to accej^t instead th^aq^ncyVs or"aLren'L^°"'''-
tion that the site is "suitable" in In Lolu e sens^ Thiris"
precisely the opposite of a conservative approach

r,np<J , potential confidence of the Yakima Indian Nation in
DOE'S claims of suitability of the Hanfcrd site must be coJsid-

lltt.'r^VTT- "" "'° ''^^'"^ "5hts in the land that ?s n^w
called Hanford cannot consider the Department's actions in tSe
'^^''ll^^^ ^^<^^oactive waste program in isolation. Our reservation
IS too close to Hanford and our rights are too important for us
not to examine the past practices of DOE. The agency that
assures us today of the suitability of Hanford °or^ h^oh i
waste repository is the same agencj ?hat hfs fs^u ed us^f^ 'I3'
years that its operations at Hanford have not been
environmentally damaging.

278

Yet we have learned in the past year of over 40 years of
both accidental and intentional releases of large quantities
of radioactivity to the earth, the atmosphere, and the waters
that are sacred to the Yakimas. This is the same agency that
for nearly three decades used the' Columbia River for once-through
cooling of its reactors, and that to this day still releases
highly radioactive primary coolant water from, the N-reactor to
surface ponds right next to the river.

This is the same agency that for 30 years put liquid, high-
level wastes in single-shell tanks just below the surface of the
ground, and assured us that the practice was safe, only to have
many of those tanks leak their deadly contents into the
soil. Even worse, this is the agency that has made known its
desire to leave the remains of those single-shell tank wastes
right where they are--a permanent high-level waste repository
just a few feet below the surface of the ground, and just a few
miles from the Columbia.

This is the same agency that has told us repeatedly that its
N-reactor posed no threat to our environment. Yet when consul-
tants hired by DOE to review N-reactor operations in light of the
Chernobyl accident recently recommended either drastic safety
improvements or immiediate shutdown of the N-reactor, DOE decided
to disregard the most important of those consultants' recommenda-
tions and implement only very limited repairs, which do not
address serious safety concerns about hydrogen gas generation end
radionuclide containment raised by their own consultants.

This is the same agency that permits enforcement of safety
measures at its PUREX plant at Hanford to become so lax that
vital criticality prevention regulations have been violated
alm.ost as a matter of course, and the facility has been
repeatedly shut down because of accidents and safety problems.
This is the agency that temporarily removed signs warning of con-
tamination when the Governor came through for a visit. This is
the agency that has come under close congressional scrutiny this
year through an endless series of GAO reports harshly critical of
the environmental practices at its facilities all over the
country, and particularly at Hanford. This is the agency that
has vigorously fought against the application of federal and
state environmental protection laws to its facilities, and that
continues to resist EPA and state enforcem.ent of - the Resource
Conservation and Recovery Act with respect to those facilities.

In short, this agency has unfortunately been shown to ignore
the environment, witha recklessly cavalier attitude about its
assumed privilege to abuse the Hanford environment. DOE acts as
if Hanford were a permanent national sacrifice area, to be
despoiled as the agency sees fit'or finds convenient.

Under these circumstances, after this history of decades of

279

to be sacred, regardless of past an^ '^"' ^'"^ ""<^ *^h^t river
any coir.fort inDOE's empty assLtJon ^'''^"' contamnation, take

available evidence-thafH^anL d r^s" ^^bL-'fL'^'^'' °'
Much more convincing--and meaninoful- <^^k " ^ ^^epository?

acknowledgment that HanforSJs ?hf ^^^s? s^to'^r.^^" ^'^^
considered. We must ask ri,-^ n^ worst site of those
turmoil that were required tf l.J'tt^ °° "'^'^^"^h the years of

squander its resourcL aSd Us'^chance; fof ^"''' '° "^^'^ "^^^
site? ^^ cnances for success on the worst

announ^Jd th:' ^t'wal^^^tendinf thf -'^°? -^'^^ ^^"^"^-"^' -^
at a first repository frorfsSI to^SSs '\"s f'Lv^'^ acceptance
support this change as a necessarv Irvln^i I policy matter we
inevitable. We hasten to !^^k ^ acknowledgment of the

ajustment is in no way anaSouI'?:' tlrr^^' ''^' ^^^^ ^^'^-^
postponement of the second ^^no^5 ^^^ .^^P^r tmenf s illegal
year relaxation of the def dUne f o°'^ '\''"5 process, a live
within the range that Congress hfshf^.''' • ''??=^'°^y operation is
Department from the beginnina of Kn-J. '.'"^^^ allowed the
it represents an impro?emen?^n the L^f '"k"'"''°"- '^'^^^over,
deadlines on the one ha^d^and the need ?or tLT'" i'^ ^^^'^
and meaningful consultation and coooer M^n ^"^f^-^^^al excellence
states on the other. m sEarp con^ra't the'oo^'"'''^" ""'^
ond repository siting activitieris^^'r^J^ .^ ^?°"^"®"^ °^ se'^-
tion of the Congressionallv m=nL^^. complete and illegal cessa-
second repository lite? ^'^'^ progress toward finding a

The DepartjT.ent has failed to satic-v, ^v-^
cooperation requirements of the NWPA ;d I consultation and
in the Act's objectives o? insoir ino 'rf'f ■ ^ ^^ ^^^ utterly failed
and m.eaningfully with the concerns of ^\^°'"^'/"' """^^^"^ ^^^1^
The recently announced five-ve^r L^ ^ ^! ^""^ ^"^i^" tribes,
development makes the possIbHity o 'me'-ninf^S ''' = ' repository
cooperation somewhat "less remo'e 'h, .!•-"' "^ consultation and
ficient. Secretary tierrLllon Ut^K^'t^ "'!? ^^ far from suf-

Committee last weel ":ck;S:dged' a "-h^rD^o- J^men'f °^^ '.""'^
better in its c & c effort-.; tk ,• . -^e Department needs to do

than it should be, however •because'nor'''^" '' ''^^ rr.eaningful
saying the same thing to Congress and to ^^'f'""^"'^"" ^"^^ ^^^"
no signs of im.provement. ^""^""^^^ ^"'^ to us for four years, with

fnoc ^^'"^/.■'°^ ^" spawned an impossible prolifera-
ings at which the state and tribal reprlse^^ati^es

At the same t;
tion of meetii

^es

280

are told a small portion of what the Departir.ent and its contrac-
tors are doing, and treated to endless slide shows and view-
graphs. Millions have been spent on travel to these ceaseless
meetings, and DOE will undoubtedly present you with an impressive
looking list of meetings and comments which it will represent as
consultation and cooperation with the states and tribes.

But the Department has not dealt meaningfully with the con-
cerns of the states and tribes, as required by the NViPAi The
Department has never been willing to discuss its plans with the
states and tribes before it reaches decisions. Indeed, the
Department has largely ignored what anybody else has had to say
substantively about its conduct of this program.

Moreover, this tendency by DOE not to heed the recomjnenda-
tions of others has not been limited to the views of states and
tribes. DOE has also by and large ignored the advice and com-
ments of other federal agencies and Congress, v^hen the Nuclear
Regulatory Commission submitted com.ments on the final Environmen-
tal Assessments to DOE recently, the prevalent message was that
most of its draft EA comments still applied. In other words,
iT.ost of NRC's comments on the draft EAs were not heeded by DOE in
preparing the final EAs. When the National Academy of Sciences
Board on Radioactive Waste Management, in reviewing DOE's so-
called Decision Aiding Methodology, recommended twice that the
Department should involve outside experts in the process, DOE
refused to iiTiplement that suggestion.

Your hearing last week with Secretary Herrington offers
another excellent example of DOE's willful deafness. After a
couple hours of being told by every single Senator present that
the Department did not have legal authority to postpone second
repository siting, the Secretary and Mr. Rusche still insisted to
the contrary. Congress reaffirmed its desire to see C & C agree-
m.ents concluded between DOE and states and tribes in its
appropriations actions la-st fall. Last week's testimony by Sec-
retary Herrington demionstrated the same DOE stubbornness and
refusal to hear crystal clear m.essages which causes feelings of
frustration and anger by Indian tribes and states. Needless to
say, such feelings, which characterize most of our dealings with
the Departm.ent, are not conducive to productive negotiations.

Perhaps the best indication of the level of public con-
fidence in DOE's actions in the nuclear waste program is the fact
that practically nobody has passed up the opportunity to seek
judicial review of those actions. The decision to file suit was
a difficult one for the Yakim.a Nation. Funds to get involved in
litigation are not high on the list of economic priorities for
our tribe, which suffers a 70 percent unemployment rate. In the
end, our Tribal Council, the executive governing body, nonethe-
less concluded that the Yakima Indian Nation had no choice but to
challenge DOE's illegal actions in court. The agency has largely

281

ignored our concerns with impunity for four years. They have
•violated the NKPA , as well as the federal government's trust
responsibility to our tribe, in many fundamental respects. We
simply could not let these violations pass without asserting our
rights, and we have no doubt that those rights will be upheld in
court.

v;hat 'Should Be Done?

This program has been so fundamentally conpromised by DOE
that it is now dead in its tracks. Futile attempts to continue
on the present course will only result in much m.ore time and
ir.oney being unnecessarily wasted. Congress has been largely
unwilling to rethink the NKPA up to this point, but its
appropriations, actions last fall indicate a healthy new skep-
ticism has developed.

Ke feel the NWPA itself already offers a mechanism for the
necessary rethinking. Section 303 of the Act required the Secre-
tary to undertake a study of alternative approaches to finance
and manage civilian radioactive waste facilities. Unfortunately,
then Secretary Hodel waited nearly a year, until the deadline for
the study had passed, before appointing an advisory panel to do
the study. The panel, of which I was a member, published its
final report in December 1984. Needless to say, by that time the
prograiTi already was so far advanced that recommendations for fun-
damental change had little prospect of implementation. On the
other hand, the late timing of the so-called AMFK Panel's
deliberations gave it the advantage of having a couple years of
DOE management to look at.

The Ay.FM panel--which was not notable for a preponderance of
nuclear . industry or DOE c r itics--concluGed even two years ago
that the Department of Energy's credibility and organizational
flexibility and stability problems in this program, were probably
insurmountable. Rather than sacrifice the program to those prob-
lems, the panel concluded that "the site selection process could
be enhanced and m.ade more credible by the use of a special
advisory siting council comprised of representatives of all
legitirr.ate stakeholders."

It is no surprise that the Department of Energy did not
exactly herald this report when it was completed, and as far as
we are aware, it was never given much attention in Congress. Ke
feel Congress could do m.uch worse now than to retrieve that
report from its dust on the shelf and seriously consider what the
panel had to say two years ago. The ensuing two years have only
affirmed the AMFM panel's conclusion that DOE does not have what
in takes to implement this program successfully. While the
specific recommendations probably need to be updated, there is
still much to be gained from the report's analysis and conclu-
s ions .

282

Following are the Yakiir.a Indian Nation's detailed cominents

on doe's manipulation of the first repository site selection

process, and on the Department's postponement of the second
repository program.

doe's First Repository Site Recommendation Decision is Fatally
Flawed

When Congress enacted the NWPA, it had reason to expect
that, if not the very best, certainly one of the best sites in
the nation from the standpoint of geologic considerations would
be chosen for the first nuclear waste repository. How has it
happened that Hanford, which would be on no objective geologist's
or hydrologist' s short list of possible sites, is one of DOE's
three chosen locations? In our view, the objectives of Congress
have been corrupted because, rather than attempting to select the
best site, DOE, aided by contractors who have a huge economic
interest in having their site stay in the running, is bent on
proving all the first-round sites acceptable so that the agency's
maxiiTium "flexibility" can be maintained.

One of the best examples of the failure of DOE's conduct of
the repository siting program is the absurd contortions the
agency goes through in order to keep the Hanford Site among those
recommended for characterization. The suitability of Hanford for
a repository has long been questioned by most knowledgeable
observers and most earth scientists. The National Academy of
Science Board on Radioactive Waste Management, DOE's own EWIP
Hydrology/Geology Overview Committee, the U.S. Geological
Survey, and m^any highly-respected individual scientists from
those organizations and the Nuclear Regulatory Commission have
all at various times expressed their serious technical
m.isgivings about the suitability of a site in totally saturated,
highly fractured, highly-stressed basalt rock just a few miles
from the nation's second largest river, the Columbia. Hanford is
the only site where the repository would become totally saturated
in groundwater within a very short tim;e after repository closure.

Even DOE's much-touted "Decision Aiding Methodology" could
not avoid ranking Hanford dead last among the nominated sites for
both postclosure and preclosure guidelines. DOE's analysis shows
that:

Hanford has the worst expected postclosure performance
by orders of magnitude (at least a factor of 50).

Hanford has by far the greatest uncertainty associated
with its projected postclosure performance.

Hanford ranks fifth (last) in overall pre-closure con-

283

siderations, far behind the other four sites.

Hanford is expected to be by far the most costly site
(by over $5 billion) in terms of both repository and
transportation costs.

— The Hanford site would have the greatest occupational
risks to repository workers by far.

DOE is able to recommend Hanford for characterization in
spite of its distant last-place showing in the comparative analy-
sis only by engaging in three serious and illegal distortions of
the site selection process:

1) DOE brushes off Hanford' s vast inferiority in projected
post-closure performance in violation of the NWPA
requirement that detailed geologic considerations
should be the primary selection criteria;

2) DOE totally discounts cost and transportation consider-
ations in flagrant violation of the NWPA; and

3) DOE elevates "diversity" of rock types to the primary
selection criterion, totally overwhelming consideration
of technical merit, also in violation of the NWPA.

Hanford Postclosure Inferiority

doe's post-closure performance analysis yields the sig-
nificant result that radioactivity releases from the Hanford Site
to the accessible environment are projected to be higher by at
least a factor of 50 than all the other sites. The Yakim.a
Nation's technical consultants advise us that the actual dif-
ference is even greater than DOE admits. Eut DOE dismisses the
significant inferiority of the Hanford Site because supposedly
even Hanford radioactive releases will be orders of magnitude
below the EPA standards, " In other words, DOE dismisses this
large comparative difference on the basis of its projection of
absolute excellence for all the sites. (DOE gives all the sites
scores above 99.7 on a scale of 1 to 100. The contention alone
that all the sites are so close to perfection and so close
together should be sufficient to reveal the absurdity of this
analysis. )

DOE acknowledges that there is great uncertainty in its
prelimiinary projections of postclosure performance at the sites.
If, as we believe, DOE is greatly over-optimistic about releases
at all the sites (that is, if all the sites are worse than DOE
thinks by the same factor, a distinct possibility according to
uses and NRG), then the actual Hanford releases could be at or
above the EPA standards, while the other sites would still be
orders of m.agnitude below them. It does not require a scientific

284

background to realize that the margin for error and, thus, the
margin of safety, is much, much less for the Hanford Site than
for the other sites. Beyond this, DOE acknowledges that the
uncertainty about performance at the Hanford Site is actually
much greater than at all other sites, because of the complex
geologic and hydrologic environment at Hanford. Therefore, the
possibility that they are way off in their performance
projections is the greatest at Hanford.

Obviously, it is grossly non-conservative from a geologic
perspective to dismiss this large difference in the margin of
safety among the sites. Since section 112(a) of the NWPA
requires that detailed geologic considerations should be the pri-
mary criteria for the selection of sites, COE's decision is
clearly inconsistent with the NWPA.

Hanford Preclosure Inferiority

In order to justify its selection of Hanford, DOE simply
ignores relative costs, which are much higher for Hanford than
for the other sites. (DOE has adm.itted in a letter to the
Chairm.an of the House Energy and Commerce Subcommittee on Energy
Conservation and Power that the excess cost of developing a
repository at Han'ford is actually over 55 billion, rather than $4
billion as reported in the Decision Aiding Methodology. DOE was
unable to satisfactorily account for the discrepancy.) While
DOE's siting guidelines call for cost considerations to be given
the least weight among pre-closure guidelines, DOE is able to get
Hanford to rank in the top three in pre-closure considerations
only by ignoring costs completely.

This is not permissible under the NWPA. Section 112(a)
requires the siting guidelines to "take into consideration the
proxim.ity to sites where high-level radioactive waste and spent
nuclear fuel is generated or temporarily stored and the transpor-
tation and safety factors involved in m,oving such waste to a
repository." This section also requires the Secretary "to con-
sider the cost and impact of transporting to the repository site
the solidified high-level radioactive waste and spent fuel to be
disposed of in the repository and the advantages of regional dis-
tribution in the siting of repositories." Clearly DOE may not
ignore cost considerations under the Act, but that is precisely
what the agency had to do in order to rationalize its recommenda-
tion of the Hanford Site for characterization for a repository.

It is interesting to note that the Department takes exactly
the opposite approach to cost considerations in the Draft
Environmental impact Statement for Disposal of its Kanford
Defense High-Level Wastes. In that context, where the agency
seeks to justify its desire to exempt most of that waste fromi the
repository disposal requirement, DOE seems to feel that cost con-
siderations are extrem.ely important. It would be valuable to

285

hear the Department explain why costs are so overwhelmingly
■important when it comes to selecting alternatives for defense
waste disposal, but not important at all (a $5 billion difference
is dismissed) when it comes to selecting among alternative
repository sites. Nuclear utilities might do well to question
whether the Department is applying less rigorous cost-
justification standards where the Nuclear Waste Trust Fund is
concerned than where Treasury funds are concerned.

Moreover, in order to rank Hanford first in pre-closure con-
siderations after ignoring costs in violation of the Act, DOE
unjustifiably underestimates environmental and socioeconomic
effects at Hanford relative to the other sites. For example, DOE
virtually ignores the tribal issues of greatest concern to the
Yakimas such as loss of access to and desecration of Indian reli-
gious sites, damage to archaeological resources, effects on
Indian subsistence lifestyle, and the tribe's extraordinary cul-
tural risk-aversion with respect to environmental thre ts to the
land, the fish, and other natural resources that are central to
their religion and their way of life. These are issues we have
raised repeatedly in every possible for'j; to DOE. It is insult-
ing and, we believe, unlawful, for these issues to be so
cavalierly brushed aside.

Undue Emphasis on Rock Diversity

The NKPA calls for the recommendation of sites in diverse
geologic media only to the extent practicable. Diversity can be
a useful consideration in distinguishing among comparable sites,
but should not be used as an excuse for the selection of inferior
sites. If fractured, stressed, saturated basalt adjacent to a
major river were comparable to the other site types in terms of
geologic performance measures, diversity might be an adequate
basis for its selection. -^ In fact, even'oGE's analysis shows that
the basalt site is significantly inferior to the other sites in
both - post-closure and- prerclosure considerations. Even giving
cue weight to the advantages of diverse media, the "suite" of
sites for characterization is manifestly not improved by includ-
ing in it the site which has by far the greatest uncertainty
associated with it (in spite of the vastly greater study that has
occurred there relative to the other sites) , and which is
obviously by far the least likely to prove suitable of all those
considered.

Well before Congress spoke on the subject in comprehensive
legislation, DOE had decided that it would be convenient to put a
repository at Hanford, since DOE already controls the land, and
employs a large number of persons in the area. Geologic consid-
erations had next to nothing to do with the choice. It is beyond
serious dispute that, were the geologic suitability of the site
the main criterion, Hanford would be on no-one's list of top
choices for a repository.

77-lOA 0-87-10

286

In the draft EA's, DOE attempted to justify selection of
Hanford on the absurd argument that Hanford is one of the three
best sites. Reality has intervened at least to the extent that
the agency has now dropped that rationale. Now, in the Final EA
and its accojnpany ing docurr.ents , DOE still recommends Hanford, in
spite of a newfound admission that it is the worst site consid-
ered. This time around, the Hanford Site is a winner on the
basis of an arguably more plausible but legally improper over-
emphasis on rock "diversity." That the rationale keeps changing
while the decisions remain the same is a good indication of the
kind of science that undergirds decision-making in this program.

Second Repository Postponement

doe's announced "indefinite postponement" of the second
repository siting program is not within the agency's discretion
under the NWPA . The NWPA sets a non-discretionary deadline for
DOE to nominate and recom.mend sites for characterization for the
second repository. It also sets a non-discretionary deadline for
the President to recommend a site for a second repository to Con-
gress.

DOE has announced that if and when it does resume the second
repository siting process, it will start the site screening pro-
cess from scratch. Why throw away all the considerable work that
has been done and money that has been spent to date on second
repository siting, unless political motivations were behind the
postponement? The administration desperately wanted the candi-
date areas for the second repository to feel, at least
temporarily, that they are completely off the hook.

DOE is telling us that its second repository siting efforts,
which, in contrast to the first round, were based at least
nom.inally on a comprehensive national screening using the Depart-
ment's siting gu ideli-nes,. are not worth saving. Ke have not spe-
cifically reviewed those efforts, and given the inadequate
guidelines, we cannot argue with that conclusion. Indeed, if
they are no better than the first repository siting program has
been, then clearly they are not worth saving.

On the on hand, DOE is foreclosing valuable options by
stopping the second repository program, and tossing out all the
work that has been done. At the same time, the agency is arguing
that the success of the entire waste management program should
depend on the sufficiency of its first repository siting effort
together with an MRS. That effort started without any kind of
valid national screening, with two of the three sites initially
chosen on geologically irrelevant grounds, without the benefit of
siting guidelines prescribed by the NVJPA. Indeed, the essence of
this charade is illustrated by the fact that, under DOE's current
plan for administration of this program, the siting guidelines.

287

which took nearly two years to develop, will probably never be
used at all. In sum, the first repository siting process has
been as political and unscientific as it could possibly be. Ke
must ask, is that the basket where Congress really wants to put
all of its nuclear waste management eggs?

From a political standpoint, calling DOE's action a "post-
ponement" rather than a "cancellation" is mere semantic sleight-
of-hand. Even if the agency is being truthful when it claims it
does not wish to do so, destroying the NWPA-mandated ongoing
momentum toward construction of a second repository now makes the
eventual complete cancellation of the second repository virtually
inevitable. To resume the second repository siting program in
the 1990's after ten or more years of inactivity would require
much the same political capital that went into initial passage of
the NKPA. It was possible to initiate momentum toward the siting
of two repositories as part of the grand corrprorr:ise that is the
NV.'PA; it will be much harder — if not impossible--to separately
resume progress toward a second repository once the first is an
accomplished fact.

The possible elimination of a second repository also has
major impl ications ' f or the Department's ultimate disposal of its
defense wastes. The pressure on repository size lim.itations that
would result from the construction of only one repository could
cause untoward pressure on DOE to seek to implement inadequate
disposal options for its defense wastes (such as leaving them, in
place just below the ground surface in spite of their comparable
risks to other wastes slated for deep geologic disposal). The
defense waste management decisions should be free of such pres-
sures.

In conclusion, the Yakima Indian Nation is gravely concerned
about doe's implementation of the NWPA . Through political
maneuvering, DOE has m.angled the Act's objective to locate two
safe "and suitable plVces" in which to bury this nation's waste.
V,"e trust that you will use the testimony presented today to get-
the whole program back on track.

288

Senator Evans. Thank you very much, Mr. Sampson.
Mr. White, please proceed.

STATEMENT OF DEL T. WHITE, ASSISTANT SECRETARY/TREAS-
URER, NEZ PERCE TRIBAL EXECUTIVE COMMITTEE ACCOM-
PANED BY RONALD T. HALFMOON, MANAGER, NUCLEAR
WASTE POLICY ACT PROGRAM; AND KEVIN GOVER, SPECIAL
COUNSEL TO THE TRIBE REGARDING NUCLEAR WASTE POLICY
ACT ISSUES

Mr. White. Thank you, Mr. Chairman.

I would like to make one correction to your statement, that I am
not the chairman of our Tribal Council. I am an officer of the
Tribe, but in the capacity as Assistant Secretary/Treasurer of the
Tribe.

Senator Evans. I see. The record will so show the change.

Mr. White. Mr. Chairman, Members of the Subcommittee, my
name is Del White. As I said, I serve as the Chairman of the Nucle-
ar Waste Subcommittee of the Nez Perce Tribal Executive Commit-
tee. Coming with me today is Ron Halfmoon, who is the manager
of the Nuclear Waste Program of our Tribe; and Kevin Gover, our
special counsel to the Tribe regarding nuclear waste issues.

We are pleased to have the opportunity to present the views of
the Nez Perce Tribe for the consideration of the Committee. I
might add that we concur with the Tribes and States in their posi-
tion regarding the May 28 decision, but our testimony is more or
less focusing on the C & C issue.

I will start off, Mr. Chairman, that we believe that the Depart-
ment's Nuclear Waste Policy Act program is not good, as has been
reiterated by the previous panel before us. DOE's credibility seems
to be beyond rehabilitation. This is ironic as the DOE statute is
charged with executing extensive provisions designed to enhance
the Department's credibility with the public.

The following details our major concerns regarding DOE's execu-
tion of the Nuclear Waste Policy Act. We are unable to comment
in detail on DOE's proposed amendments to the Mission Plan due
to the Department's failure to issue those amendments for review
in a more timely manner. We will provide our preliminary assess-
ments of the following:

(1) The provisions regarding the C & C, the Consultation and Co-
operation requirements;

(2) The rationale for the decision to postpone indefinitely site-spe-
cific work for the second repository;

(3) The revised schedule for the characterization of the three
first-round sites, and for filing a license application with the NRC.

I will now expand on the Consultation and Cooperation. The C &
C provisions of the Nuclear Waste Policy Act should form the basis
for the relationship between affected Tribes and States on the one
hand, and DOE on the other. If DOE had faithfully abided by the
letter and spirit of these provisions, the program would not be in
the difficulty that it now faces, because DOE seems unwilling and
perhaps incapable as an institution of allowing the broad public
participation required by the Act and is under fire from every
party which it must deal with.

289

We are most disappointed with the Department's statement re-
garding C & C in the Mission Plan amendments. The Department
proposes few new initiatives, and its report of events is less than
complete. We had hoped as a Tribe that the proposed amendments
to the Mission Plan would mark a new point of departure for
DOE's C & C efforts. What is reflected, instead, is the Department's
continuing inability to comprehend what constitutes a meaningful
consultation and cooperation.

Nevertheless, the C & C remains a central component of the Nez
Perce Tribe's nuclear waste program. As you know, the Nuclear
Waste Policy Act is not always clear in its effect or its intent. This
is particularly true in connection with the rights of affected Indian
Tribes under the Act. Our primary reason for focusing on the possi-
bility of C & C negotiations is that we believe such negotiat'ons
and any agreement that may result will clarify and ensure the
broad Tribal rights of participation that Congress has intended.

In our efforts to commence C & C negotiations we have observed
the following:

First, DOE consistently acts so as to provide the least possible
consultation in the process.

Second, DOE instinctively interprets any ambiguities in the Nu-
clear Waste Policy Act so as to minimize Tribal and State rights of
participation under the statute.

Two experiences of the Nez Perce Tribe form the basis of our
views. Late last summer the Tribe learned that DOE had prelimi-
narily determined that the Tribe was ineligible for any assistance
under section 118(b) of the Act designed to mitigate adverse im-
pacts to Tribal interests. Prior to August, the Tribe had been given
no indication that the Department doubted the Tribe's eligibility
for such assistance.

Although the decision was never made final and never was ex-
plained fully, DOE's contract officers enforced the determination in
negotiations with the Tribe on our fiscal year 1987 grant funding.
Despite repeated Tribal protests, DOE seemed unwilling to recon-
sider what had been, after all, only a preliminary determination, or
even to make that determination final and reduce it to writing.

Finally, on October 17 the Tribe demanded initiation of a process
for the final resolution of the issue. The process demanded by the
Tribe required consultation with the Tribe at key points in the de-
cisionmaking process. The Umatilla and Nez Perce Tribes prepared
a lengthy document in response, demonstrating that the legislative
history of the Act supported the Tribe's claim of eligibility.

At this point, the process fell into some disarray. The Tribes had
proposed then a step-by-step process. After submitting the response
to DOE-Richland, that position paper, but before consulting with
DOE-Richland, the Tribes learned that DOE headquarters already
had the question under review.

In spite of this breach of the procedure agreed upon, the ultimate
result was favorable to the Tribes. DOE now has ruled that the
Tribes are eligible for assistance under section 118(b). Nevertheless,
the entire affair demonstrates the points made above. DOE im-
posed on the Tribes a decision made without consultation dramati-
cally narrowing Tribal rights under the Act. The decision reflected

290

a narrow statutory interpretation apparently designed to limit
Tribal participation.

True consultation requires Tribal input before controversies
reach the policymaking level of the Department. It requires that
DOE personnel explain the decisions, and that the Tribe be given
an opportunity to respond before the Department's position hard-
ens. It requires direct communication between Tribal and Depart-
mental policymakers. These hard-won lessons, however, already
are in jeopardy.

The Tribe recently learned that DOE will determine whether all
of the provisions of section 117(c) apply to the Tribes. DOE has not
requested Tribal input on this matter, and again the Tribes have
been forced to demand consultation.

These issues of statutory intepretation unfortunately have de-
layed the initiation of C & C negotiations' process between the
Tribe and DOE. The Tribe was most pleased with the disposition of
the impact assistance issue, but we do have lingering concerns re-
garding the decisionmaking process.

Our satisfaction, however, is tempered by the emergence of the
issue concerning Tribal rights of participation under section 117(c).
DOE announced at a December meeting of the Institutional Socio-
economic Coordinating Group that it was reviewing the question of
whether C & C agreements with affected Tribes could include all of
the 11 elements listed in section 117(c). That the Department
should now entertain doubts on this issue is made doubly unfortu-
nate by the fact that DOE personnel from both Richland and head-
quarters had assured the Tribe that each of the 11 items would be
appropriate to be included in the C & C agreement.

Significantly, Tribal eligibility on each of the 11 areas is one of
the several principles the Chairman of our Tribal Council, Mr.
Reuben, has asked Secretary Herrington to acknowledge in the
Chairman's letter of December 15 conditionally inviting negotia-
tions. That letter requested Secretary Herrington's acknowledg-
ment of five principles before negotiations will begin.

Number one would be the Tribe has a critical interest in main-
taining the environmental integrity of the Columbia River and its
tributaries.

Number two, the Tribe has a critical interest in protecting the
natural resources in the Tribe's possessory and usage rights area.

Number three, by virtue of its treaties with the United States,
the Tribe has prior and paramount reserved rights to certain natu-
ral resources.

Number four, as acknowledged in the President's policy state-
ment of January 1983, a government-to-government relationship
exists between the United States and the Tribe.

Number five, the provisions of section 117 do not constitute a
limitation on the contents of a C & C agreement.

Items one through four we regard as truisms supported by unde-
niable facts and two centuries of American jurisprudence. We hope
and expect that the Secretary will not find them to be problematic.

Number five of course involves the section 117(c) issue noted
above.

The Tribe is gratified that, given an opportunity to provide
meaningful input into DOE decisionmaking as in the case of

291

impact assistance, the Tribfe's views can influence departmental
action. This tells us that DOE is not completely hostile, and that
there exists within the Department at least a few people who are
committed to the principle of broad public participation. We com-
mend those people and urge their superiors to adopt that commit-
ment.

At the same time, these events demonstrate that the Depart-
ment's commitment to Consultation and Cooperation has not yet
reached the point where the Department's decisionmakers routine-
ly seek input from Tribes and States and the public before making
decisions, and that until such consultation is universal the relation-
ships between DOE and the affected Tribes and States will remain
essentially adversarial.

A current example of this fact common to all the States and
Tribes involves the formulation of amendments to the Consultation
and Cooperation section of the Mission Plan. At the last quarterly
meeting of Tribes, States, and the DOE, the Tribe requested that
any future proposed amendments to the Mission Plan be formulat-
ed in consultation with the Tribes and States before their public
release.

The reaction of DOE headquarters personnel was scornful, and
the request was rejected out of hand. It is self-evident that when an
individual at the top level reacts with scorn to Tribal and State
input on so important a matter, the commitment of those individ-
uals to Consultation and Cooperation is absent, and that their
value to the Department and to the ultimate goal of developing a
repository is highly doubtful.

Signals indicating the possibility of a change for the better seem
to be not evident. Departmental representatives met in November
with representatives of the affected parties to discuss proposed
amendments to the proposed Mission Plan. This meeting did not
result in meaningful proposals to amend the C & C process and the
Mission Plan. This reflects the Department's lack of commitment.
It also indicates that those people in the Department who seek im-
provement in the C & C process are overruled by their superiors
when the time comes for true reform.

All too often commitments made by those who work most closely
with the Tribes and States are reversed at higher levels. We can
only conclude that those higher levels lack any commitment to car-
rying out the C & C provisions of the Act. We also regard as unfor-
tunate the fact that such consultation did not obtain in the devel-
opment of the other amendments to the Mission Plan.

We note, as well, that eight months have passed from May 28 to
the presentation of amendments to the Mission Plan. This is more
than sufficient time for detailed consultation with the affected par-
ties prior to any formal release of proposed amendments.

I might note that the consulting firm of Creighton & Creighton
noted that a spectrum of C & C alternatives exist. Those alterna-
tives range from Tribal and State input only after a decip-ion has
been made, to a Tribal and State veto power over Department deci-
sions. Because of the nature of the program, we understand why
the latter alternative — a Tribal and State veto power — is not work-
able. What we do not understand is why the Department insists on
allowing Tribal and State input only after it has made its decision.

292

The Department very rarely amends draft documents in a mean-
ingful way based on public comments. Draft documents circulated
for review almost always represent hardened departmental posi-
tions which are unlikely to change even in the face of universal
Tribal and State opposition. What is necessary is input during the
formulation of departmental decisions.

If DOE will not guarantee such input, then Congress must.
Oddly, other agencies having Nuclear Waste Policy Act duties such
as the NRC have a firmer grasp on this concept than does DOE. A
current example is the negotiated rulemaking proposed by NRC to
develop changes in the procedural rules relating to license applica-
tions.

This procedure guarantees Tribal and State input early in the
decisionmaking process. Indeed, the NRC consulted frequently with
Tribes and States before proposing a negotiated rulemaking. We
find regrettable DOE's inability to learn from NRC's example.

Unless DOE can reshape the attitudes of its personnel at all
levels, C & C will remain an unfulfilled promise. Perhaps the ap-
pointment of Mr. Kale will have that result. If not, it is incumbent
upon the Congress and the Administration to see that whatever is
needed for this reshaping takes place.

That concludes my remarks, Mr. Chairman, and I will gladly en-
tertain any questions that you may have.

[The prepared statement of Mr. White follows:]

293

Testimony of Del T. White

Nez Perce Tribal Executive Conmittee,

before the

Senate Conmittee on Energy and Natural Resources

February 4, 1987

294

INTRC»DCTIC»I

Mr. Chairman, members of the Comnittee, my name is Del T.
White. I serve as Chairman of the Nuclear Waste Subcommittee of
the Nez Perce Tribal Executive Committee ( "NPTEC" ) . Accompanying
me is Ronald T. Halfmoon, Manager of the Tribe's Nuclear Waste
Policy Act ("NWPA") program, and Kevin Cover, Special Counsel to
the Tribe for NWPA issues. We are pleased to have the
opportunity to present the views of the Nez Perce Tribe for the
consideration of the Conmittee.

Mr. Chairman, we believe that the state of the Department's
NWPA program is not good. The Department of Energy ("DOE") often
seems to go out of its way to create unnecessary problems for
itself. If it persists in its current course, DOE's credibility
will be beyond rehabilitation. This is peculiarly ironic where,
as here, the statute DOE is charged with executing contains
extensive provisions designed to enhance the Department's
credibility with the public.

The following details our major concerns regarding DOE's
execution of the NWPA. We are unable to conment in detail on
DOE's proposed amendments to the Mission Plan due to the
Department's failure to issue those amendments for review in a
more timely manner. We will provide our preliminary assessments
of the f ol lowing:

(1) The provisions regarding the Consultation
and Cooperation ( "C & C" ) requirements of
the NWPA;

(2) The rationale for the decision to postpone
indefinitely site-specific work in the
process of selecting a site for the second
repository; and

(3) The revised schedule for the character-
zation of the three first-round sites
approved for characterization, and for
filing a license application with the
Nuclear Regulatory Commission ("NRC")
for construction of the first repository.

295

The C & C provisions of the NWPA should form the basis for
the relationship between affected tribes and states on the one
hand and DOE on the other. Had DOE faithfully abided by the
letter and spirit of these provisions, its program would not be
in the difficulty in which it now finds itself. Because DOE
seems unwilling and, perhaps-, incapable as an institution of
allowing the broad public participation required by the Act, it
is under fire from every party with which it must deal in
executing the NWPA.

We are most disappointed with the Department's statements
regarding C & C in the Mission Plan amendments. The Department
proposes few new initiatives, and its report of events is less
than complete. We had hoped that the proposed amendments to the
Mission Plan would mark a new point of departure for DOE's C <5c C
efforts. What is reflected instead is the Department's
continuing inability to comprehend what constitutes meaningful
consultation and cooperation.

Nevertheless, C & C remains a central component of the Nez
Perce Tribe's NWPA program. As you know, the NWPA is not always
clear in its effect or its intent. This is particularly true in
connection with the rights of affected Indian tribes under the
Act. Our primary reason for focusing on the possibility of C <5c C
negotiations is that we believe such negotiations and any
agreement that may result will clarify and ensure the broad
tribal rights of participation that Congress intended.

In our efforts to corrmence C & C negotiations, we have
observed the following. First, DOE consistently acts so as to
provide the least possible consultation in the process. Second,
DOE instinctively, almost convulsively, interprets any amibguity
in the NWPA so as to minimize tribal and state rights of
participation under the statute.

Two experiences of the Nez Perce Tribe form the basis of our
views. Late last sunrner, the Tribe learned that DOE had
"preliminarily determined" that the Tribe was ineligible for
assistance under Section 118(b) designed to mitigate adverse
impacts to tribal interests that may result from the development
of a repository at Hanford. Prior to August, the Tribe had been
given no indication that the Department doubted the Tribe's
eligibility for such assistance.

296

Although the decision was never made final and never was
explained fully, DOE's contract officers enforced the
determination in negotiations with the Tribe on FY'87 grant
funding. Despite repeated Tribal protests, DOE seemed unwilling
to reconsider what had been, after all, only a "preliminary"
determination, or even to make that determination final and
reduce it to writing.

Finally, on October 17 the Tribe demanded the initation of a
process for the final resolution of the issue. The process
demanded by the Tribe required consultation with the Tribe at key
points in the decision-making process. A draft decision document
was prepared by DOE and presented to the Nez Perce Tribe and the
Confederated Tribes of the Umatilla Indian Reservation
("Umatilla" or "CTUIR"). Umatilla and Nez Perce prepared a
lengthy document in response, demonstrating that the legislative
history of the Act supported the tribes' claim of eligibility.

At this point, the process fell into some disarray. The
tribes had proposed a step-by-step process involving: (1) the
issuance of a document showing DOE's rationale by DOE's Richland
Operations Office ("DOE-RL"); (2) a written tribal response; (3)
consultation between the tribes and DOE-RL; (4) a written
recommendation from DOE-RL to headquarters; (5) a written tribal
response; (6) consultation between the tribes and DOE
headquarters; and (7) a final written decision from
headquarters. After submitting their response to DOE-RL's draft
position paper, but before consulting with DOE-RL, the tribes
learned that DOE headquarters already had the question under
review.

Notwithstanding this breach of the procedure agreed upon,
the ultimate result was favorable to the tribes. DOE now has
ruled that the tribes are eligible for assistance under Section
118(b). Nevertheless, the entire affair demonstrates the points
made above. DOE imposed on the tribes a decision made without
consultation, dramatically narrowing tribal rights under the
Act. The decision reflected a narrow statutory interpretation
apparently designed to limit tribal participation.

On the positive side, the tribes and DOE learned important
lessons about consultation and cooperation. True consultation
requires tribal input before controversies reach the
policy-making level of the Department. It requires that DOE
personnel explain their decisions and that the tribes be given an
opportunity to respond before the Department's position hardens.
It requires direct conmunicat ion between Tribal and Departmental
policy-makers. Finally, it requires that people of good will
seek a result that protects the interests of all involved.

297

These hard-won lessons, however, already are in jeopardy.
The tribes recently learned that DOE will determine whether all
of the provisions of Section 117(c) apply to the tribes. DOE has
not requested tribal input on this matter, and the tribes again
have been forced to demand consultation.

These issues of statutory interpretation, unfortunately,
have delayed the initiation of C & C negotiations between the
Tribe and DOE. The Tribe was most pleased with the disposition
of the impact assistance issue. We do have lingering concerns
regarding the decision-making process, but believe that the
entire affair constitutes the showing of good faith on DOE's part
that we deemed a prerequisite to C & C negotiations.

Our satisfaction, however, is tempered by the emergence of
the issue concerning Tribal rights of particpation under Section
117(c). DOE announced at a December meeting of the Institutional
Socioeconomic Coordinating Group that it was reviewing the
question of whether C & C Agreements with affected tribes could
include all of the eleven elements listed in Section 117(c).
That the Department should now entertain doubts on this issue is
made doubly unfortunate by the fact that DOE personnel from both
Richland and headquarters had assured the Tribe that each of the
eleven items was appropriate to be included in C & C Agreements
with affected tribes.

Significantly, Tribal eligibility under each of the eleven
areas is one of the several principles NPTEC Chairman Reuben
asked Secretary Herrington to acknowledge in the Chairman's
letter of December 15 conditionally inviting negotiations. That
letter requested Secretary Herrington's acknowledgement of five
principles before negotiations will begin. Those principles are
as follow:

1. The Tribe has a critical interest in maintain-
ing the environmental integrity of the Columbia
River and its tributaries, and Departmental
activities at Hanford should be designed to
avoid adverse impacts on the river.

2. The Tribe has a critical interest in protecting
the natural resources in the Tribe's possessory
and usage rights area, and Departmental
activities at Hanford should be designed to
avoid adverse impacts on those resources.

3. By virtue of its treaties with the United
States, the Tribe has prior and paramount
reserved rights to certain natural resources,

298

and the Department is obliged to take all
reasonable measures to avoid harm to those
resources .

4. As acknowledged in the President's policy
statement of January, 1983, a government-to-
government relationship exists between the
United States and the Tribe, which obligates
the United States to protect and enhance the
proprietary and governmental rights of the
Tribe.

5. The provisions of Section 117(c) do not consti-
tute a limitation of the contents of a C & C
Agreement; all issues arising from the NWPA
program are open for discussion in C & C nego-
t iat ions.

Items 1-4 we regard as truisims supported by undeniable
facts and two centuries of American jurisprudence. We hope and
expect that the Secretary will not find them to be problematic.
Item 5, of course, involves the Secion 117(c) issue noted above.
If the Department resolves the matter quickly in the Tribe's
favor, no impediments will remain to the conmencement of C & C
negot iat ions .

The Tribe is gratified that, given an opportunity to provide
meaningful input into DOE decision-making, as in the case of the
impact assistance issue, the Tribe's views can influence
Departmental action. This tells us that DOE is not irremediably
hostile, and that there exist within the Department at least a
few people who are conmitted to the principle of broad public
participation. We conmend those people and urge their superiors
to adopt that conmitment. At the same time, these events
demonstrate that the Department's conmitment to consultation and
cooperation has not yet reached the point where Department
decision-makers routinely seek input from tribes, states and the
public before making decisions broadly affecting the course of
the program. Until such consultation is universal, relations
between DOE and the affected tribes and states will remain
essentially adversarial.

A current example of this fact common to all the states and
tribes involves the formulation of amendments to the consultation
and cooperation sections of the Mission Plan. At the last
quarterly meeting of tribes, states and DOE--a meeting held in
the wake of the Department's May 28 actions--the Tribe requested
that any future proposed amendments to the Mission Plan be

299

formulated in consultation with the tribes and states before
their public release. The reaction of DOE headquarters personnel
was scornful and the request was rejected out-of-hand. It is
self-evident that when individuals at the top levels of the
Office of Geologic Repositories and the Office of Civilian
Radioactive Waste Management react with scorn to tribal and state
input on so important a matter, the conmitment of those
individuals to consultation and cooperation is absent and their
value to the Depar tment --and to the ultimate goal of developing a
repos i t ory-- i s doubtful.

Signals indicating the possibility of a change for the
better are not evident. Departmental representatives met in
November with representatives of the affected parties to discuss
proposed amendments to the Mission Plan. While there were many
flaws with the timing and format of the meeting, the mere fact
that it was held is a positive indication. On the other hand,
that this meeting did not result in meaningful proposals to amend
the C (5c C process in the Mission Plan reflects the Department's
lack of conmitment. It also indicates that those people in the
Department who seek improvement in the C (5c C process are
overruled by their superiors when the time comes for true reform.
All too often, conmitments made by those who work most closely
with the tribes are reversed at higher levels of OGR and OCRWM.
We can only conclude that these higher levels lack any conmitment
to carrying out the C & C provisions of the Act.

We also regard as unfortunate the fact that such
consultation did not obtain in the development of the other
amendments to the Mission Plan. We note as well that eight
months passed from May 28 to the presentation of amendments to
the Mission Plan--more than sufficient time for detailed
consultation with the affected parties prior to formal release of
the proposed amendments.

In a report to the nuclear industry on the Department's
execution of the C Sc C provisions of the NWPA, the Consulting
firm Creighton & Creighton noted that a spectrum of C & C
alternatives exists. Those alternatives range from tribal and
state input only after a decision has been made, to a tribal and
state veto power over Department decisions. Because of the
nature of the program, we understand why the latter
al ternat i ve--a tribal and state veto power--is not workable, save
in the context of a notice of disapproval under Section 116 or
118. What we do not understand is why the Department insists on
allowing tribal and state input only after it has made its
decision. The Department very rarely amends draft documents in a
meaningful way based on public conments. Draft documents
circulated for review almost always represent hardened
Departmental positions unlikely to change even in the face of
universal tribal and state opposition. Such £Ost^ hoc input is

300

meaningless and, therefore, unacceptable. What is necessary is
input during the formulation of Departmental decisions. If DOE
will not guarantee such input, then Congress must.

Oddly, other agencies having NWPA duties such as NEC have a
firmer grasp on this concept than does DOE. A current example is
the negotiated rulemaking proposed by NRC to develop changes in
the procedural rules relating to license applications. This
procedure guarantees tribal and state input early in the
decision-making process. Indeed, NRC consulted frequently with
the tribes and states before proposing a negotiated rulemaking.
We find regrettable DOE's inability to learn from NRC's example.

Unless DOE can reshape the attitudes of its personnel at all
levels, C & C will remain an unfulfilled promise. Perhaps the
appointment of Mr. Kale will have that result. If not, it is
incumbent upon Congress and the Administration to see that
whatever is needed for this reshaping takes place.

1 1 . Fifgt Repository Schedule

We believe it is unfortunate that DOE is willing to admit
that the first repository schedule is unachievable only after
that is an accomplished fact. While we support any change to the
schedule allowing more time for the necessary investigations, the
schedule proposed by DOE fails to account for the pause in the
program that will be necessary for DOE to revisit the entire
s i t i ng process .

We believe that that process as applied to the first round
is flawed fatally and will not result in a licensed repository.
All three of the sites approved for characterization are subjects
of litigation that the Tribe believes to be meritorious.
Confidence in the program is virtually non-existent outside DOE
itself. What clearly is needed is a "cool ing-of f " period during
which DOE re-examines the major program decisions made to date.
Under no circumstances should DOE be permitted to begin drilling
exploratory shafts until a consensus as to the course of the
program is reached among the various entities involved to date in
the NWPA process.

Only after that consensus exists should DOE begin projecting
a schedule for the conmencement of construction of a repository.
The consensus well may be that DOE must return to an earlier
point in the program to re-evaluate the portfolio of sites that
should have been investigated.

301

Such a pause also would allow OGR, OCRV^M, and DOE officials
carefully to review the personnel in the program for their
contribution to the program. Recent disclosures concerning the
development of major decision documents make clear the necessity
of removing certain individuals from their positions. These
people have destroyed the credibility of the program and have
ill-served the United States. Individuals lacking conmitment to
the principles of full disclosure and broad public participation
also should be removed.

Any delay in the program caused by this re-evaluation will
be more than offset by the benefits of a stable program
proceeding towards a resolution of nation's radioactive waste
problem. That the program as now conducted is unlikely to result
in a licensed repository becomes more evident by the day.
Congressional support for the program continues to recede even as
tribal, state, and public hostility rises. DOE should not simply
wait for the other shoe to drop in the form of court order
prohibiting the Department from carrying out its plans. The
re-evaluation of the program should begin imnediately .

III. Postpononent of Work On the Second Repository

The Nez Perce Tribe endorses completely the position of the
other affected tribes and states concerning DOE's decision to
postpone indefinitely site-specific work on the second
repository. In our view, Mr. Chairman, this is not a
postponement; it is an abandonment of the second repository
program and, therefore, an abandonment of the
Congress ional ly-mandated geographic balance in nuclear waste
disposal. Thus, the site chosen for the first repository will be
the only repository and will bear the entire burden of what is,
after all, a national problem.

The arrogance of this decision is astonishing. While we
knew well that DOE was capable of ignoring science and
techonology in order to choose Hanford for characterization, the
thought that DOE would abandon the second repository program
never occurred to us. In so doing, DOE ignored Congress, the
affected tribes and states, and, indeed, its own lawyers, who
have advised that the statutory schedule cannot be affected by
the device of amending the Mission Plan.

The net effect of DOE's May 28 deicisiens and its earlier

actions on the siting of the Monitored Retrievable Storage

("MRS") facility has been to politicize what was intended to be a

technical and scientific process. DOE has succeeded in turning

302

forty-six states against four. We do not genuinely expect
Congress to do what needs to be done, as much as we would like it
do so.

What DOE has not weighed in its political equation is the
possibility that none of its first-round sites will be
licensable. NRC's conrments on the final Environmental Assessments
make clear that the licensing agency has grave reservations about
both the sites and the adequacy of DOE ' s investigation of them.
Should the courts agree with the states and tribes that the
second-round decision of the selection of sites for
character i zaton was illegal, the NWPA program will have failed
entirely.

IV. The Reconmendation of Hanford for Characterization

Mr. Chairman, we agree completely with the State of
Washington, the Yakima Indian Nation, and the Confederated Tribes
of the Umatilla Indian Reservation that the selection of Hanford
for characterization was unjustified as a scientific matter.
Disclosures following the May 28 announcements confirm our belief
that the Department's reasons for selecting Hanford were other
than scient i f ic.

Most troubling to us are the disclosures by the staffs of
the Subcomni t tees of Messrs. Markey and Weaver. Specifically, we
learned from their investigation that certain DOE officials
systematically edited from the Mul t i at t r ibute Utility Analysis
("MUA") findings that the selection of Hanford was
unjustifiable. Among the passages found in drafts of the MUA
that did not appear in the final document are the following;

(1) There are no realistic assumptions about either
preclosure or postclosure expected performance
or about the values used to evaluate performance
that can result in Hanford being anything but
the last ranked site. And the significance of
the performance differences between Hanford and
all the other sites is substantial.

(2) For all reasonable assumptions and weightings,
the Hanford site is ranked last.

(3) Hanford is the least desirable site because its
enormously greater costs and greater health
effects are not compensated for by its rela-
tively slight advantage in environmental and
socio-economic impacts.

303

We also learned that the Report to the President
recomnend ing Hanford for characterization was drafted before the
MUA was completed, which explains why the Department set about
purging negative references to Hanford in the MUA. For whatever
reason, it is clear that Hanford was going to be selected without
regard to its technical merit. Indeed, the House investigators
demonstrated that DOE "cooked the books" by juggling data,
de-emphasizing positive factors in order to justify the selection
of Hanford.

In short, the judgments and findings of scientific and
technical experts were overruled by policy-makers in the
Department. This point is supported by analyses conducted for
the National Academy of Sciences and DOE itself by members of the
teams that evaluated the selection of sites for characterization.

C3MKJLUSICW

Mr. Chairman, the NWPA process is failing. The current
deterioration need not have occurred. While imperfect, the NWPA
could have been implemented in a manner leading all concerned to
believe in the scientific credibility of the program. Instead,
DOE'S cynical and self-centered conduct of the program leaves it
unlikely to result in a licensed repository.

The Nez Perce Tribe will continue to particpate in the
program in good faith and in the hope that DOE will correct its
errors and launch a technically-based initiative directed at
finding the safest site for the disposal of high-level
radioactive waste. We will continue to participate because such
participation is necessary to the protection of tribal
interests. Recent developments in the relationship between the
Tribe and DOE give us some small hope that the Department has
begun to see the error of its ways. Much more, will be needed to
create the complete confidence in the program that is necessary
to ensure that tribal interests will be protected adequately.
That confidence cannot emerge without the full, fair, and
scientific execution of the NWPA.

304

Senator Evans. Thank you very much.

Mr. Dick, your entire statement will be entered into the record,
and you are free to summarize, if you wish.

STATEMENT OF LOUIE DICK, JR., VICE CHAIRMAN, BOARD OF
TRUSTEES, CONFEDERATED TRIBES OF THE UMATILLA INDIAN
RESERVATION, AND CHAIRMAN NUCLEAR WASTE ADVISORY
COMMITTEES, ACCOMPANIED BY DANIEL HESTER, ESQUIRE,
ATTTORNEY

Mr. Dick. Thank you, Mr. Evans, and Mr. Adams.

My name is Louie Dick, Jr. In my country they call me Squayos
[phonetic]. I am the Vice Chairman of the Board of Trustees, which
is the governing body of the Umatilla Indian Reservation. Unfortu-
nately, I have been in that capacity less than about three or four
months, so I am kind of the rookie being sent to the lions.

In addition, I am the Chairman of the Nuclear Waste Advisory
Committee, which provides policy guidance to the director and staff
of our Umatilla Nuclear Waste Study Program.

I appreciate the opportunity to appear here before you today to
testify on behalf of the Tribe concerning the current status of
doe's civilian nuclear waste activities. Accompanying me here
today is our attorney, Mr. Daniel Hester.

The Umatilla Tribe is an affected Indian Tribe because of the po-
tential and significant and adverse impact to the Tribe's off-reser-
vation treaty rights if Hanford were selected as a repository. These
rights include the right to fish at usual and accustomed stations on
the Columbia River and its tributaries, many of which are in the
vicinity of the Hanford Reservation; the right to hunt, graze cattle,
and gather roots and berries on public lands off the reservation. I
should also point out that the Hanford Reservation includes some
of our aboriginal lands which we ceded to the United States.

As Vice Chairman of the Umatilla Tribe, I can assure you we
will insist that our land and our rights that have survived to this
day be fully protected. When the Tribe signed our treaty with the
United States Government in 1855, we ceded 6.4 million acres of
aboriginal territory to the reservation of 245,000 acres.

Because of the Allotment Act, the size of the reservation was re-
duced to 145,000 acres in the 1880s. Over half the reservation lands
are owned in fee by non-Indians. What little land remains in trust
is closely guarded by our people and our government. Equally im-
portant to our cultural traditions and economic vitality is the pro-
tection of the environment that provides our off-reservation rights
to fish for salmon, hunt for deer and elk, graze our cattle, and
gather our roots and berries which were used in our sacred ceremo-
nies.

We treasure our land. It is where our ancestors are buried and
where our spirits dwell, and where our hopes for our children are
based. Therefore, the Umatilla Tribe is an affected Indian Tribe
under the NWPA and, as stewards of our land and our resources,
have made the oversight of DOE's repository activities at Hanford
a high priority. DOE's selection of Hanford for site characterization
and the indefinite postponement of the second repository has incit-
ed considerable opposition among the Umatilla Tribal members.

305

These decisions have destroyed Tribal confidence that DOE's im-
plementation of the repository program will be in compliance with
the Nuclear Waste Policy Act and the highest technical standards.
Tribal members voted overwhelmingly in favor of a resolution op-
posing a Hanford repository just last month. Today, however, I do
not want to spend my time on the site selection process and the
second repository postponement.

Our written comments outline our outrage at these decisions,
and I am sure that the congressional reports, like the Markey-
Weaver report on those decisions have angered you like they have
us. I wanted to use this opportunity today to focus on particular
problems we are having with DOE.

These problems involve a concern expressed by Congress that
DOE has failed to effectively implement the Consultation and Co-
operation requirements of the Act. In addition to maintaining a
watchful eye on DOE's implementation of the national repository
program, the Umatilla Tribe has been engaged in an important
and oftentimes frustrating exercise with the DOE defining the
level of participation in oversight authority of Congress — Congress'
authority intended for affected Tribes in the NWPA.

The Tribe has based its involvement in the repository program
on the view that our designation as an affected Tribe authorizes us
to participate on an equal basis with the affected States. It is clear
that Congress intended the Consultation and Cooperation, or the C
& C agreement to resolve these issues, and for that reason the
Tribe attended C & C negotiations in July of 1985.

The principal concern of the Tribe was to ensure that the agree-
ment recognized the treaty rights of the Tribe, and that the Tribe
had the authority to protect and preserve those rights throughout
the repository program. DOE's revision of the Mission Plan re-
leased last week is correct in claiming there have been six C & C
negotiation sessions with the Umatilla Tribe in the last 18 months.
DOE failed to mention, however, that the Umatilla Tribe terminat-
ed negotiations on January 1987 because of the DOE's failure to
recognize the role Congress intended affected Tribes to play in the
repository program.

During the C & C negotiations of 1986, two issues arose that
highlighted the difference that Tribes were having with DOE. Both
issues required interpretation of unclear provisions in the NWPA
regarding the rights of affected Tribes.

The first dispute arose over the entitlement of affected Tribes to
file an impact report and receive impact assistance under section
118(b) of the Act. The impact report was intended to provide an af-
fected party an opportunity to identify impacts that a repository
would cause, and the impact assistance was designed for the miti-
gation or compensation of those impacts.

The dispute over the impact assistance issue stemmed from am-
biguities of section 118(bX3). That section appears to be contradicto-
ry on the eligibility of the affected Tribes who do not host a reposi-
tory to receive the impact assistance. One section says all affected
Tribes are entitled to impact assistance, while another seems to
limit the assistance to Tribes who host a repository.

To resolve the ambiguity, we insisted, and the DOE agreed, that
the affected Tribes would be consulted prior to DOE's decision. In

306

October we received a DOE preliminary position paper on the
impact assistance. As expected, the DOE claimed we were not enti-
tled to it. The consultation process on this basis was abysm.al.
doe's preliminary position paper was superficial and made no at-
tempts to analyze the legislative history of the Act to discern the
intent of Congress.

We sent a letter requesting a legal and policy basis for DOE's po-
sition in November, and never received a response. We set up a
meeting with DOE-Richland, which we cancelled when we found
out at the last minute their chief policymaker would not be able to
attend the meeting.

Because of our inability to engage DOE-Richland's officials in
that instant discussion on the issue, we decided to take our case to
DOE headquarters. In the meanwhile, a second dispute arose that
went to the heart of the consultation agreements between DOE and
the affected Tribes. It involved an interpretation of section 117(c)
which lists the procedure Congress felt that a C & C agreement
should include. While States and Tribes are expressly mentioned in
most procedures, Tribes were omitted in several of them.

In our C & C negotiation, we took the position that it made no
sense to preclude Tribal involvement in any of the procedures.
DOE officials initially agreed with our position. At our July 9 C &
C negotiation at DOE headquarters, a representative on their nego-
tiation team stated it was "obvious that Congress intended that
section to apply equally to Tribes as well as States."

However, in a meeting last December DOE backed away from
their previous claims and said they needed to formulate their
policy on the issue. Because of DOE's handling of the impact assist-
ance issue and their consistently narrow interpretation of the
Tribe's right under the NWPA, the Umatilla Tribe formally can-
celled future C & C negotiations on January 5. Since our cancella-
tion of negotiations, DOE has reversed itself and we have been in-
formed affected Tribes are entitled to draft an impact report and
receive impact assistance.

While we are encouraged by this decision, DOE's poor consulta-
tion on this basic issue is disturbing. The future of C & C negotia-
tions with the Umatilla Tribe is in doubt. We must await DOE's
decision on the interpretation of section 117(c) before we decide
whether we will return to the negotiating table.

In deliberating on the NWPA, Congress struggled with the need
for a safe disposal of nuclear waste, and anticipated opposition to
such a disposal facility by local residents and their State or Tribal
government. In the hopes of avoiding this conflict. Congress crafted
an important oversight role for affected States and Tribes. Con-
gress felt that the participation of the affected parties in the repos-
itory program would promote public confidence in the safety of nu-
clear waste disposal.

The Consultation and Cooperation requirements were designed to
ensure DOE's response to local concerns that it met its statutory
and regulatory obligations. Adherence to this process, it was hoped,
would result in a site selection methodology for two repositories
that were technically sound and, therefore, credible. The integrity
and credibility of the site selection and characterization process

307

would then result in repositories that were safe and, if not em-
braced by affected governments, would at least be acceptable.

All has not gone as planned, and DOE is largely to blame. The
selection of sites for characterization for the first repository, espe-
cially at Hanford, sacrificed both the technical merit and the credi-
bility of the Department's site selection decisions. The second re-
pository postponement indicated that DOE is more responsive to
political pressure than their obligations under the NWPA.

Finally, DOE's poor performance in consulting with us on resolv-
ing even fundamental issues on the level of our participation in the
repository program strongly suggests that we will be unable to re-
solve the more difficult issues we expect in the future. The Uma-
tilla Tribe feels it is time for the Congress to re-examine the
NWPA and DOE's role in the repository program.

In my country, we would say "Waoka Kalou" [phonetic], that is
all.

Thank you, Mr. Evans.

[The prepared statement of Mr. Dick follows:]

308

TESTIMONY
OF
LODIE DICK, JR.
VICE CHAIRMAN
CONFEDERATED TRIBES OF THE
OMATILLA INDIAN RESERVATION
BEFORE THE SENATE COMMITTEE
ON
ENERGY AND NATURAL RESOURCES

FEBRUARY 4, 1987

309

I. Introduction.

Chairman Johnston, members of the Energy and Natural

Resources Committee, my name is Louie Dick, Jr. I am the Vice
Chairman of the Board of Trustees which is the governing body of
the Confederated Tribes of the Umatilla Indian Reservation. In
addition, I am Chairman of the Nuclear Waste Advisory Committee
which provides policy guidance to the director and staff of our
Umatilla Nuclear Waste Study Program. I appreciate the
opportunity to appear before you today to testify on behalf of
the Tribe concerning the current status of DOE's civilian nuclear
waste activities. Accompanying me here today is our ?ttorney,
Mr. Daniel Hester.

The Umatilla Tribe has been an active participant in the
process to site the first nuclear waste repository mandated by
the Nuclear Waste Policy Act (NWPA) since 1983. In that year the
Tribe petitioned and received from the Department of the Interior
certification of its status as an "affected Indian tribe" because
of the potential for significant and adverse impacts to the
Tribe's off-reservation treaty rights if Hanford were selected as
a repository. These rights include the right to fish at usual
and accustomed stations on the Columbia River and its
tributaries, many of which are in the vicinity of the Hanford
Reservation, and the right to hunt, graze cattle, and gather
roots and berries on public lands off the reservation. I should
also point out that the Hanford Reservation includes some of our
aboriginal lands that we ceded to the United States.

The governing body of the Umatilla Tribe, the Board of

310

Trustees, has the authority under our constitution to exercise
and protect all existing and future Tribal rights arising from
the Tribe's treaty, federal law and other sources. Of paramount
importance to the Tribe is the protection of its reservation
homeland and the Tribe's off-reservation treaty rights. The
Umatilla Tribe is gravely concerned that a Hanford repository
will impair or destroy the physical resources reserved by the
Tribe in our treaty and promised to the the Tribe in perpetuity
by the United States Govenment. This concern stems from the
location of the Hanford site on the Columbia River and from the
fact that the primary rail and highway routes to Hanford pass
through the center of the Umatilla Reservation.

As Vice Chairman of the Umatilla Tribe, I can assure you
we are adamant in our demand that our land and our rights that
have survived to this day be fully protected. When the Tribe
signed our treaty with the United States Government in 1855, we
ceded 6.4 million acres of aboriginal territory for a reservation
of 245,000 acres. Because of the Allotment Act the size of the
reservation was reduced to 145,000 acres in the 1880 's. Over
half of the reservation lands are owned in fee by non-Indians.
What little land remains in trust is closely guarded by our
people and our government. Equally important to our cultural
traditions and economic vitality is the protection of the
environment that provides our off-reservation rights to fish for
salmon, hunt deer and elk, graze our cattle and gather the roots
and berries which are used in our sacred ceremonies. We treasure
our land; it is where our ancestors are buried, where our spirits

311

dwell and where our hopes for our children are based. Therefore,
the Umatilla Tribe, as an "affected Indian tribe" under the NWPA
and as stewards of our land and resources, have made the
oversight of DOE's repository activities at Hanford a high
priority.

The Umatilla Tribe commends this Committee for holding
these hearings on the status of the nuclear waste repository
program. It has become abundantly clear that DOE implementation
of its responsibilities under the NWPA has doomed the development
of public confidence in the technical integrity of the repository
program. Furthermore, DOE has frustrated the consultation and
cooperation process that was designed to resolve differences with
affected parties. This process was at the center of
Congressional concern when the role of affected states and Indian
tribes was crafted. From our perspective, the performance of DOE
in the repository program is in need of continued Congressional
scrutiny, as well as the oversight of affected states and tribes,
to insure that DOE implements the NWPA as Congress intended.
II. doe's May 28, 1986 Decisions.

A. Selection of Hanford for Site Characterization.

doe's decisions of May 28, 1986 destroyed any confidence
the Umatilla Tribe had in the integrity of DOE's implementation
of the repository program. Hanford should not have been selected
to undergo site characterization. We read with disbelief the
Recommendation Report which cited Hanford 's fifth place ranking
in the multiattribute utility analysis but nonetheless
recommended Hanford as one of the three sites to be

312

characterized.

The Markey-Weaver Report released in October confirmed
the Tribe's fears about the DOE site selection process. The
Report demonstrated DOE knew which sites it wanted to
characterize and eliminated or manipulated data to reach its
predetermined result. DOE drafted the Recommendation Report
selecting Hanford prior to completing the Methodology Report that
was supposed to provide the "decision-aiding" data DOE needed to
recommend the sites to undergo characterization.

Moreover, DOE systematically removed from the

Methodology Report references to the poor ranking of the Hanford

site. One such reference found in an early draft of the

Methodology Report stated as follows:

Although the weights of k [preclosurel and k
[postclosure] at which the ranking of the sites changes
depending on whether base-case, pessimistic, or
optimistic assumptions are adopted, certain patterns are
clear and stable under a wide range of assumptions.
Most significantly, the Hanford site is in all cases
ranked last (i.e., has the lowest composite utility),
regardless of the relative weight assigned to preclosure
and postclosure. This is so because it is ranked last
for all sets of assumptions in both preclosure and
postclosure (i.e., it sucks).

For obvious reasons, DOE removed this passage from the final

Report.

B. "Indefinite Postponement" of Second Repository Site

Selection.

doe's announcement that it was terminating its efforts

to identify sites for the second repository was equally

disturbing to the Tribe. The decision represents a blatent

violation of the letter of the NWPA and of the sensitive

313

political compromise that resulted in the passage of the NWPA.
doe's claims that their decision was premised on projections of
reduced waste volume and concern for the federal treasury were at
the very least deceptive. The Congressional inquiries into DOE's
memos relevant to the second repository postponement confirmed
what we already suspected, that political expediency was the
primary factor motivating DOE's decision to disregard the
timetable for identifying second repository sites required by
Congress in the NWPA. The Tribe shares in the assessment of
DOE's General Counsel, and that of the General Accounting Office,
that DOE's plan to effectuate the postponement of the second
repository program by amending the Mission Plan is legally
insufficient.

doe's implementation of the repository program has
incited a national uproar and dozens of legal challenges. The
selection of Hanford for characterization has caused a strong
political response as well. The public confidence in the safety
of radioactive waste disposal that Congress felt essential when
the NWPA was passed has been compromised by DOE. The Tribe's
general membership voted overwhelmingly to condemn the selection
of Hanford for characterization just last month. Residents of
the State of Washington voted overwhelmingly in favor of
Referendum 40 which requires state officials to continue their
challenge to DOE's selection of Hanford. Oregon Governor, Neil
Goldschmidt, recently announced his determination to give Oregon
voters a similar opportunity. There was little question that the
selection of sites for further study as a nuclear waste

314

repository would be met with some political and legal opposition.
But DOE has severely jeopardized the prospects of the repository
program surviving the political or legal turmoil it has churned _
up because of its failure to make decisions concerning the first
and second repository programs based on firm legal and technical
grounds rather than on political or programmatic expediency.
III. Consultation and Cooperation Agreement Negotiations Issues.
A. Function of a C and C Agreement.

In addition to maintaining a watchful eye on DOE's
implementation of the national repository program and BWIP
activities at Hanford, the Umatilla Tribe has been engaged in an
important and often times frustrating exercise with DOE ,def ining
the level of participation and oversight authority Congress
intended for affected Indian tribes in the NWPA. The Tribe has
premised its involvement in the repository program on the view
that our designation as an affected tribe authorizes us to
participate on an equal basis with the affected states. It is
clear that Congress intended the Consultation and Cooperation (C
and C) Agreement to resolve these issues and for that reason the
Tribe initiated C and C negotiations in July 1985. The principal
concern of the Tribe was to ensure that the agreement recognized
the treaty rights of the Tribe and that the Tribe had the
authority to protect and preserve those rights throughout the
repository program. In order to fully protect its treaty rights,
the Tribe recognized it was critical that it take full advantage
of the oversight role Congress legislated for affected Indian
tribes in the NWPA. The Tribe feels that Congress designed the C

315

and C Agreement to require DOE to recognize in writing the
interests and concerns of each affected party, their oversight
-authority -and -the procedures for responding to the concerns-and-
impacts identified by affected parties.

In early meetings with the DOE C and C negotiating team.
Tribal representatives specifically stated they expected a
negotiated agreement to result from a broad reading of the NWPA
and one that recognized that the provisions of Section 117(c) set
the floor for possible elements of a C and C Agreement, not the
ceiling. The Tribe's claim that the NWPA should be interpreted
liberally when ambiguities arose concerning the authority of
affected tribes is in accord with the Ninth Circuit decision in
State of Nevada ex rel. Loux v. Herrington, 777 F.2d 529 (9th
Cir. 1985) . In rendering its decision allowing Nevada to conduct
independent tests prior to their site being selected for
characterization, the court relied upon the legislative history
of t(he Senate predecsssor bill to the NWPA which stated that
affected parties "should be entitled to the broadest possible
rights and opportutfities to participate in the development of the
[nuclear waste] facilities..." The court also determined that
the general purposes of the NWPA and the independent oversight
authority conferred on affected parties by Congress indicated a
liberal interpretation of the Act was appropriate. We have met
considerable resistance from DOE in seeking to apply the
interpretive rules from the Nevada case in our C and C
negotiations.

During C and C negotiations in 1986, two issues arose

316

that high light the difficulties the Tribe is having with DOE.
Both issues require an interpretation of ambiguous provisions in
the NWPA regarding the rights of affected tribes. In addition,
both issues involve two equally important elements: first, the
substance of the DOE decision, and second, the effectiveness of
the consultation process by which the decision was reached,
B. Entitlement to Impact Assistance.

The first dispute arose over impact assistance. At a
meeting of the Tribe and DOE C and C negotiators in August 1986,
we were informed that the DOE Richland Project Office had made a
"preliminary determination" that the affected Indian tribes were
not entitled to file an impact report or receive impact
mitigation assistance under Section 118(b)(3) of the NWPA. The
impact report was intended to provide an affected party an
opportunity to identify impacts that a repository would cause and
the impact assistance was designed for the mitigation or
compensation of those impacts. DOE officials promised they would
not render a final decision on this issue until the affected
tribes were provided an opportunity to review and comment upon
the draft position paper from the Richland office. After
considerable delay in issuing the draft document, the Tribe
finally received the position paper at the end of October.

The dispute over the impact assistance issue stemmed
from ambiguity in Section 118(b)(3). That section appears
contradictory on the eligibility of affected tribes who do not
host a repository to receive impact assistance. Section
118(b)(3)(A) requires DOE to provide "financial and technical

317

assistance to any affected Indian tribe requesting such
assistance and where there is a site with respect to which the
Commission has authorized construction of a repository." DOE
initially ignored this language and only cited subsection (B)
which states that an affected tribe desiring impact assistance
shall prepare a report to DOE "on any economic, social public
health and safety, and environmental impacts that are likely as a
result of the development of a repository at a site on the
reservation or such Indian tribe." (Emphasis added.) Because of
the ambiguity, both sides agreed there was a need to research the
legislative history of the NWPA to discern the intent of
Congress. The draft DOE position paper on this issue shed little
light on the legal basis for DOE's conclusion that affected
tribes were not entitled to impact assistance. On November 5,
1986 our attorney sent a letter to DOE's General Counsel in
Richland requesting citations to the NWPA and its legislative
history which supported DOE's position. This information was
requested on behalf of the Umatilla and the Nez Perce Tribes who
were in the process of jointly preparing a response to DOE's
position paper. The Tribe never received any additional
information from DOE on the legal basis of DOE's preliminary
position paper.

A meeting was scheduled in December 1986 to discuss the
impact assistance issue with the top echelon of DOE Richland
officials. The Omatilla and Nez Perce Tribes sent a Memorandum
of Law to DOE in response to the DOE position paper on November
24, 1986. This memorandum clearly demonstrated that Congress did

77-10^ 0 - 87 - 11

318

not intend impact assistance to go only to "host" affected Indian
tribes, but to all affected Indian tribes as defined by the NWPA.
The memorandum included close scrutiny of the legislative history
of the Act which documents Congress' view that all affected
Indian tribes were authorized to participate in the repository
program on an equal basis with states. The memorandum concluded
that DOE must interpret the ambiguities concerning affected tribe
entitlement to impact assistance consistent with the clear
expression of Congressional intent found in the legislative
history.

The meeting to discuss the dispute over impact
assistance was called so that the appropriate policy making
officials from all interested parties could seek to resolve the
issue. John Anttonen, the Assistant Manager for Commercial
Nuclear Waste at Hanford, was supposed to be DOE Richland's chief
representative. The meeting date was changed to accomodate Mr.
Anttonen' s schedule once. Later, just prior to the meeting, the
Tribe learned Mr. Anttonen would not attend the meeting
rescheduled for December 18, 1986. We determined, as did the Nez
Perce Tribe, that the meeting should be cancelled as the purpose
of the meeting could not be achieved in Mr. Anttonen's absence.
Because of the ineffective consultation with the DOE Richland
office, we decided to take our case for impact assistance to DOE
headquarters where we were told the final agency decision would
be made.

C. Interpretation of Section 117(c).

In the meantime, we learned of what is potentially a DOE

319

policy change with grave implications for C and C agreements with
affected tribes. Section 117(c) lists the issues Congress felt a
C and C Agreement should address. However, while most provisions
in that section expressly apply to states and tribes, several
provisions omit reference to tribes. See Section 117(c) (5-8).
In our C and C negotiations, we took the position that it made no
sense to preclude tribal involvement in those subsections where
tribes were omitted.

DOE initially agreed with our position. At the
Inst itut ional/Socioeconomic Coordinating Group (ISCG) meeting
between DOE and affected parties held in St. Louis in June 1986,
Barry Gale, from DOE Headquarters and Chairman of the ISCG,
declared it was DOE policy that all subsections of Section 117(c)
applied equally to states and tribes. At our C and C
negotiations on July 9, 1986, Mr. Gale, who represents DOE
Headquarters in the negotiations, repeated the DOE policy
claiming that it was "obvious that Congress intended that section
to apply equally to tribes as well as states."

Nonetheless, at the last ISCG meeting in December 1986,
DOE was uncertain about the application of Section 117(c)
provisions to affected tribes and the issue was made an action
item for subsequent DOE resolution. We view DOE's recent
uncertainty on the applicability of Section 117(c) as a failure
by DOE to live up to prior policy pronouncements and to
commitments DOE negotiators have expressly made in our C and C
negotiations. More importantly, this is potentially another DOE
interpretation of the NWPA that would have the effect of further

320

curtailing the role of affected Indian tribes. The Tribe has
sent a letter to Ben Rusche demanding that the Tribe be consulted
prior to a DOE decision on this issue.
D. Status of C and C Negotiations.

On January 5, 1987 we notified DOE we were cancelling
future C and C negotiations. The decision was based on the
Tribe's displeasure with DOE's handling of the impact assistance
issue, doe's consistently narrow interpretation of the Tribe's
rights under the NWPA and because of lingering issues related to
our as yet unresolved 1987 budget. Following our decision, the
DOE Richland office, without any consultation with the Umatilla
Tribe, unexpectedly reversed itself and announced the final DOE
decision that all affected Indian tribes are eligible to prepare
and file an impact report and receive impact assistance. We were
informed of this decision on January 22, 1987.

The Tribe has engaged in C and C negotiations with
diligence and in good faith. The Tribe preceives a C and C
Agreement as a document that breathes life into the NWPA and
defines the independent oversight role Congress envisioned for
affected Indian tribes. The Tribe also views a C and C Agreement
as establishing a procedure whereby the Tribe can protect the
rights reserved for them in their Treaty of 1855 with the United
States Government. When the Congress passed the continuing
resolution providing for DOE's FY '87 budget for NWPA activities,
$79 million was withheld pending DOE certification to Congress
that it has made a good faith effort to comply with the

321

consultation and cooperation requicments of Section 117(c) of the
NWPA. The Umatilla Tribe suggests that Congress closely monitor
the resolution of C and C issues between the Tribe and DOE to
assist you in your deliberations concerning DOE's Section 117(c)
efforts.

Clearly the DOE decision on impact assistance is an
important first step in recognizing the authority of affected
Indian tribes. We are encouraged by the DOE decision on this
issue, but we are very concerned about the abysmal process that
yielded the result. As we pointed out to DOE on several
occasions, the importance of the impact assistance issue went
beyond the substance of the eventual decision. Also at stake was
the development of a process in which conflicts between DOE and
the Umatilla Tribe could be resolved. The consultation process
did not develop much, if at all, in the resolution of the impact
assistance issue. DOE's dedication to improving the consultation
requirements of the NWPA, and continued Congressional pressure on
the Department, will be necessary to effectively develop the
relationships Congress envisioned for affected Indian tribes and
DOE during the repository program.

The Tribe has withdrawn from C and C negotiations for
the time being because of DOE actions which we perceived as
restrictive of the level of tribal participation in overseeing
DOE activity and which would limit our ability to protect our
treaty rights. We have repeatedly demonstrated our willingness
to negotiate with DOE for a C and C Agreement that defines the
relationship between the Tribe and DOE that Congress intended.

322

We have stated to DOE our refusal to continue negotiations if DOE
negotiators are going to consistently read the NWPA to narrowly
construe the authority of the Tribe so as to inhibit our ability
to protect our interests. With the impact assistance decision
rendered in our favor, we must now await DOE's decision on the
interpretation of Section 117(c) to determine whether we will
return to the table for C and C negotiations.
IV Conclusion.

While deliberating on the NWPA Congress struggled with
the need for the safe disposal of nuclear wastes and the
anticipated opposition to such a disposal facility by local
residents and their state or tribal governments. In the hopes of
avoiding this conflict. Congress crafted an important oversight
role for affected states and tribes. Congress felt the
participation of these affected parties in the repository program
would promote public confidence in the safety of nuclear waste
disposal. The consultation and cooperation requirements were
designed to insure DOE responded to local concerns and met its
statutory and regulatory obligations. Adherence to this process,
it was hoped, would result in a site selection methodology for
two repositories that was technically sound and, therefore,
credible. The integrity and credibility of the site selection
and characterization process would then result in repositories
that were safe and, if not embraced by affected governments,
would at least be acceptable.

All has not gone as planned and DOE is largely to blame.
The selection of sites for characterization for the first

323

repository, especially Hanford, sacrificed both the technical
merit and the credibility of the Department's site selection
decisions. The second repository postponement indicates that DOE
is more responsive to political pressure than their obligations
under the NWPA. Finally, DOE's poor performance in consulting
with us in resolving even fundamental issues on the level of our
participation in the repository program strongly suggests that we
will be unable to resolve the more difficult issues we expect in
the future. The Umatilla Tribe feels its time for the Congress
to reexamine the NWPA and DOE's role in the repository program.

324

Senator Evans: Thank you, very much.

I think in each of your prepared testimonies you have responded
really quite well to the question that I asked of the preceding
panel: the response of the Department to the requirements of sec-
tion 117 of the Act, particularly those requirements as they related
to good-faith efforts on the Department's part to negotiate and sign
Consultation and Cooperation Agreements.

Let me, however, ask in each case if you feel that there is fur-
ther detailing or chronology that you would like to submit for the
record that would list the attempts that have been made, the reac-
tion, the timeliness, and the completeness of the Department's re-
action to those requests? I think we have gotten a good deal of in-
formation from your testimony, but I would appreciate any further
chronology that you would care to submit for the record. Or, if any
of you have any further comments at this time on that relation-
ship.

Did you feel, for instance, that the Department in responding to
section 117(c) — and let me try to get to the wording of it — where it
says, on written agreements, that "The Secretary shall seek to
enter into a binding written agreement and shall begin negotia-
tions with such State and, where appropriate, to enter into a sepa-
rate binding agreement with the governing body of any affected
Indian Tribe," and it sets forth the procedures and the require-
ments.

Now what would your understanding be of "where appropriate to
enter into a separate binding agreement with the governing body
of any affected Indian Tribe'? What is your understanding of the
attitude of the Department as to those words? How have they re-
acted, and any contrast there is in your understanding between
how they deal with States and how they have dealt with the affect-
ed Tribes.

Mr. Sampson?

Mr. Sampson. Yes. Mel Sampson, from Yakima.

The Yakima Tribe received the same or comparable letter that
the State or States received. Therefore, I would have to presume
that in response to that, that must be an expression of being "ap-
propriate."

So we are in the — some, a little over a month ago, have initiated
the process of developing, draft as it may be, our position, or our
conceivably thoughts on a proposed agreement. But until — I do not
see it becoming an acceptable negotiated agreement, as it may be,
until those fears and concerns that we have from the standpoint of
Energy is going to be resolved or become more acceptable, at least
to a level that is going to make us comfortable.

Senator Evans Have they provided any money for you to carry
out some of your responsibilities and capability to do your inde-
pendent analysis?

Mr. Sampson. We have been the recipient of a grant, pursuant to
the Act, so in reference to that, yes, we have. But I might, while I
am on that subject, somebody had asked earlier, I believe you did,
in reference to the kinds of response or cooperation we are having
in carrying out that MIR activity of the consultation portion of it,
as far as we perceive it, we have experienced on numerous occa-

325

sions, and still are experiencing, and I will allude briefly to some of
those.

Also, in response to your question, we will submit to you a com-
pilation of being more discrete in listing those particulars as far as
the problems that we are having on a timely basis, and on an ade-
quate basis, receiving information that we have requested.

[The information requested appears in the appendix.]

Mr. Sampson. Now I will just list maybe four, or refer to maybe
four areas for examples I would like to give you examples of.

One of them would be that the primary DOE study assessing the
archeological resources at Hanford was not included in the refer-
ences for the draft Hanford Environmental Assessment. They have
not yet, as of this day, provided us with that resource of informa-
tion, of which we have requested.

Senator Evans. You have requested that from them?

Mr. Sampson. Right. And on repeated occasions, we have re-
quested— and as it pertains to Hanford it is pertinent — hydrology
data that takes up to six months to get it. In some cases, what you
receive it becomes opinionistic then, but it is not adequate based on
what our request was.

The same thing applies with the environmental monitoring plans
that we requested. We do maybe in some cases get a response back,
but it is insufficient, at least from our standpoint when we consult
with our experts.

Senator Evans. You understand that in those cases they are not
sharing with you all of the information that they are receiving?

Mr. Sampson. Yes, it contributes to the doubt that we had earlier
in our testimony. So in our opinion, yes.

Then also in reference to the socioeconomic plans that they are
proposing, we requested that and have not received it in detail that
is acceptable to us, which we want to at least make a major empha-
sis from the standpoint of the socio impact it is going to generate,
it being only 13 miles from us. If you are going to have a neighbor,
you want to know what they are doing.

But if we have a choice, we do not want them as a neighbor.

Senator Evans. Do I understand correctly that in a general sense
that during the latter part of 1986 the Department was not respon-
sive, and in fact, was unwilling to reach out, and then suddenly
shifted gears in early 1987. Then it offered both money and the op-
portunity to meet; and at that point, you decided "once bitten,
twice warned," that maybe you cannot re-enter negotiations until
there is sufficient feeling that there is some opportunity to make
progress? Is that essentially what has happened?

Mr. Sampson. That is true.

Senator Evans. How about Mr. Dick? Has that been essentially
as I understand it the relationship with your Tribe, as well?

Mr. Dick. Yes. I would like to say that we would like to submit
additional information.

Mr. Dick. I will let Dan Hester answer that.

Senator Evans. All right. Yes. Would you identify yourself for
the record, please.

Mr. Hester. Yes, Mr. Senator. My name is Dan Hester. I am the
attorney for the Tribe on Nuclear Waste Policy Act issues.

326

The answer to your question about any change in the Depart-
ment's pohcy concerning Consultation and Cooperation, we did not
wait for the Department of Energy to approach the Tribe to enter
C & C negotiations. In fact, as Mr. Dick has pointed out, we ap-
proached the Department back in July of 1985 to initiate negotia-
tions ourselves because we thought there were ambiguities in the
Act that we could straighten out through negotiations.

We have not seen any increase in our funding to conduct C & C
negotiations in the last couple of months. However, while the
impact assistance issue has been lingering now for some eight or
nine months, it is perhaps not just fortuitous that that answer
came in the last couple of weeks in favor of the Tribes, because I
think the Department recognized that the one party, the one affect-
ed party that was involved in C & C negotiations would get out of
those negotiations if they did not favorably decide that issue for
the Tribe, and another Tribe that was thinking about getting in-
volved in the negotiations was making the same kind of statements
to the Department.

Senator Evans. From the time you initiated those contacts,
which I guess were what in early 1985, you say?

Mr. Hester. In the summer.

Senator Evans. In the summer of 1985, how quickly did you get
any reaction from the Department? What was the nature of that
reaction? Sort of what occurred, then, between that request of
yours in the summer of 1985 and the end of 1986?

Mr. Hester. Well, there was no delay in the Department's re-
sponse to our request to initiate negotiations. I think the area that
has caused more of a problem has been the quickness with which
we have been able to resolve issues.

As Mr. Dick has pointed out, we have had six negotiation ses-
sions in the last 18 months, and I can assure you that we have not
moved out of the recitals provisions of our proposed C & C agree-
ment. We came to the negotiating table with a 35-page suggested
working paper, and we have not been able to move beyond what I
think are very fundamental issues like what is the Trust relation-
ship that exists between the Federal Government and the Umatilla
Tribe? And what obligations does that obligation impose?

Senator Evans. Are they attempting to review that question of
what the Trust relationship is between the Tribes as an element of
these negotiation?

Mr. Hester. Well, Senator, in our negotiations we could not
even— it did not appear to interest them in even doing that. We
had one negotiations session— and by the way, all of this is on tran-
scripts— but there was a provision in our C & C agreement in the
recitals section that mentioned the Trust relationship between the
Federal Government and the Umatilla Tribe, and the fact that
those obligations fell upon the Department of Energy as a Federal
agency.

And there was no response from the Department's negotiators as
to those provisions. So we went on to another provision, assuming
of course that their silence could be construed as acquiescence.

One of our negotiators said, well, let us go back to that Trust re-
lationship. Could you tell us what that means? And the chief nego-
tiator for the Department looked at the lawyer and said, well.

327

maybe you would like to answer that. And he said, well, I am not
really able to do that right now. So they thought they would go
back and study the issue.

The negotiations, I think it is safe to say, have involved a fair
amount of education of the Department as to what the Treaty
rights of the Tribes are, what the Trust obligations of the Depart-
ment are to the Tribe, and what the implications of the President's
Government-to-Government Indian Policy Statement of 1983 are.

I do not think we have gotten much beyond that point. Certainly
technical issues about the various technical areas that the Tribe
would like to review have not been even touched at this point.

Senator Evans. Mr. White, do you have any further comments
on this relationship?

Mr. White. Well, I think Mr. Hester has kind of reiterated, or
said what I would like to say and I do not want to go over what he
said, but I would like to point out that dealing with DOE has been
an experience and a half. I do not think I have to tell anybody
that.

But one thing that we find out is that we come to the point, the
main point, the sore point I guess with Tribes is dealing with Fed-
eral agencies. It more or less comes to us, and every time we sit
down at a table, we are always explaining various things that seem
to me to be sophomoric questions that should not be questioned,
but that is a process we have been having all through this affected-
Tribe status with the Nuclear Waste Policy Act.

That is why we always testify, because we want to let them know
what Tribes are all about. That is what my testimony was about
today. One of the points was about the Government-to-Government
relationship. It is pretty hard to comprehend if you are not in-
volved in that area. If you say it to anybody off the street, it is just
completely off-base with them and they will not be able to answer
that.

Senator Evans. Sure.

Mr. White. But the whole thing that we find out is, I guess like
any agency that really has a tough time with all these entities in-
volved, I guess when it comes to Tribes there are distinct things
that they have to be concerned with when they talk with an entity
such as a Tribe. That is the part where our standards and our
morals and everything that we do is maybe a little different than
what they expect, and that is where we come in. We are always
sitting there explaining, and to us it is more of an education proc-
ess.

Senator Evans. Senator Adams?

Senator Adams. Thank you. Senator Evans.

I think you have covered most of the points in which I had an
interest. I just had two follow-on questions from Mr. Dick's testimo-
ny.

To Mr. Sampson and Mr. White, did you ever arrive at a point in
your negotiations where they discussed the transportation of these
materials through the reservation areas? Did you ever get to that
point with them? Did they raise it?

Mr. Sampson. No. We have not, not with the Department; but
the Yakima Tribe has taken a position of restricting, or eliminat-
ing, or disallowing nuclear hazardous waste transportation through

328

the reservation. I might just follow up, we have not probably to the
extent we would like at this point finalized the manner in which
we can consistently monitor that at this point.

Mr. White. Just to comment on that transportation, I think the
Nez Perce Tribe is in a position where that is one of our major con-
cerns, the transportation issue, going through Hanford. Plus, under
what they call Interstate US-12 that traverses our Reservation on
the northern portion about 70 miles through our Reservation, and
it is on the tributary that is affected by the Columbia River Chain
and tributaries.

So we are quite concerned because a few years back they had an
accident, but it was what they call low-level, so it was not really a
major concern according to the writeup in the various news media,
but we are concerned. It does not matter what kind of level or in-
tensity of radioactive waste, we are concerned about that very
much. Especially with high-level, we are greatly concerned.

Senator Adams. Have you passed any sort of regulation or resolu-
tion similar to that that has been passed by the Yakima?

Mr. White. No, not at this point we have not.

Senator Adams. Have you discussed this with the Department of
Energy when you had your original preliminary discussions with
them?

Mr. White. I am pretty sure that has been brought out.

Senator Adams. And did they give you any reply or position as to
how they were going to handle this?

Mr. White. Not as of yet.

Senator Adams. Senator, I want to thank all of you very much
for your cooperation, and for your statements. I think they indicate
the degree of the problem.

Thank you. I have no further questions.

Senator Evans. Thank you very much. To all members of the
panel, let me announce that this hearing will continue tomorrow
morning at 9:30 a.m., and the only panelist will be the Honorable
Ben Rusche, who is the Director of the Office of Civilian Radioac-
tive Waste Management.

With that, this hearing is adjourned.

[Whereupon, at 12:57 p.m., the hearing was recessed, to recon-
vene Thursday, February 5, 1987.]

NUCLEAR WASTE PROGRAM

THURSDAY, FEBRUARY 5, 1987

U.S. Senate,
Committee on Energy and Natural Resources,

Washington, DC.

The committee met, pursuant to notice, at 9:40 a.m., in room SD-
366, Dirksen Senate Office Building, Hon. J. Bennett Johnston,
chairman, presiding.

OPENING STATEMENT OF HON. J. BENNETT JOHNSTON, A U.S.
SENATOR FROM THE STATE OF LOUISIANA

The Chairman. The Committee will come to order. Today, the
Committee is holding the third in a series of hearings on the imple-
mentation of the Nuclear Waste Policy Act of 1982.

At this hearing, we will hear from Ben Rusche, who is the Direc-
tor of the Department's Office of Civilian Radioactive Waste Man-
agement.

Mr. Rusche, I hope you will begin by giving the Senators and
those in attendance, as well as those who might be watching on
CSPAN or television, a description of nuclear waste, what is in-
volved, how dangerous it is, what the difficulties are in the man-
agement of it, of transportation of it. In other words, what are the
dangers to a State?

I ask that question, because I do not think there is a subject
about which there is such tremendous lack of knowledge as there is
of the question of nuclear waste. I mean, people basically don't
know whether it is solid, liquid, gaseous; whether it can flow,
whether it can explode; if it leaks out, can it poison you? What are
the properties and characteristics of nuclear waste? What are the
dangers of it? How long do the different types of dangers last? The
gamma rays, the alphas and betas, and how do the alpha and beta
rays differ from the gamma rays?

Give us, if you will, to start out, a primer on nuclear waste,
which I think is not really all that hard to understand if you just
lay it out in a simple way for us. And then I know you will want to
answer all those things that have been said in these last couple of
days.

I frankly think there is not an answer to some of them, like why
you have not proceeded with the second repository. Nevertheless, I
know you will want to attempt to do that.

In any event, if you will begin with that description of nuclear
waste.

[The prepared statement of Senator Johnston follows:]

(329)

330

5TATSMEHT OF SENATOR J. BENNETT JOHNSTON
Chairman, Committee on Energy and Matural Resources

H<5acin'3 on Civilian Nuclear Waste Management
February 5, 1937

Today the Committee is holding the third in a series of
hearings on the implementation of the Nuclear V^Iaste Policy Act of
1982 by the Department of Energy. At this hearing we will hear
Ben Rusche, the Director of the Department's Office of Civilian
Ralioactive Waste Management.

Yesterday the States and Tribes directly affectel 'w DO" ' s
selection of r, ices for characterization provided the Committee
with a long list of complaints about the impl em^ni: li: : on oT the
program. No one said that the Act itself is flawed, oerhao-i
because our reluctance to open up the Act to amen^fnent is clear.
Everyone puts the blame on DOE.

Tod-iy DOE has its chance to respond. I have asked Ben Ruschi?
to b.,' prepared to speak to the issues the .states and Trib^^s have
raised, point by point if necessary.

T hop? very much that we can begin to sort out the real
issues from the emotion that has engulfed this program. Ic is
absolutely essential that we determine the c[ccj-nr.crAnce-:. i-idec

which the program can go forward. If we cannot find that
combination soon, the Act will be very much in danger, and the
work of many years, not to mention a ^-ir/ 3 ib",;-.a ni: i a" ^^>^ouat of
money spent, will have been wasted.

331

The Chairman. First, may I ask my distinguished ranking mi-
nority member, Senator McClure, if he has any comments?

STATEMENT OF HON. JAMES A. McCLURE, A U.S. SENATOR FROM

THE STATE OF IDAHO

Senator McClure. I commend our Chairman for having sched-
uled these hearings. I appreciate the time and effort that the wit-
nesses have gone to to come forward and testify. We will have,
before the end of these hearings, built a hearing record. But I
think even more than that, our object is not just to build a record,
but to build a repository.

Somehow, out of all of this, we have to look at what has gone
wrong, if it has gone wrong, and there is evidence that it has, what
the deficiencies are in the statute, if indeed there are; what
changes need to be made, if indeed there need to be changes in
either the statutory framework or in the process.

I look forward to your testimony, but I second the motion that
was made, if one was needed, to invite you to give us a little bit of
a background overview of what this program is all about.

Thank you, Mr. Chairman.

[The prepared statements of Senators McClure, Hatfield and
Hecht follow:]

332

OPENING STATEMENT OF

SENATOR JAMES A- McCLURE

'FEBRUARY S, 1987, HEARING ON DOE'S NUCLEAR WASTE PROGRAM

I WELCOME Mr- Rusche back to the Committee for what is our

THIRD AND FINAL LEG IN A SERIES OF LENGTHY HEARINGS ON THE
CURRENT STATUS OF THE NuCLEAR WaSTE DISPOSAL PROGRAM-

i hope that the time that the members, the states, and the
Administration have devoted to this effort has not been in vain-
It IS not our intent to bring all these parties forward just for
the purpose of building a record- What we want to build is a
nuclear waste repository facility-

BuT based on what I've heard so far in these hearings, I'm
not sure we're going to get that task accomplished- Not, at
least, if things continue on the course they are now headed-

This prospect gives me great cause for concern- For I still
believe, as most everyone here believes, that the 'Juclear Waste
Policy Act is still a reasonable and well-balanced piece of
legislation- But somehow, in its translation into reality,
something has gone amiss-

I would like to believe that the problems merely reflect the
political ploys that wreck havoc on programs as unpopular as this
0 rj E I s •

But THE signals I'm receiving go beyond the more than 40
lawsuits, beyond the unmitigated rhetoric, and beyond the State

VETO THREATS THAT ARE "a GIVEN" IN THIS PROGRAM-

The signals I'm receiving go to the very heart of the

PROGRAM- On the ONE HAND, I GET VERY CLEAR SIGNALS FROM THE

Department that they do not intend to follow the provisions laid

333

- 2 -

OUT IN THE STATUTE IN THE MANNER THAT CONGRESS ORIGINALLY
INTENDED.

And on the other hand. I am hearing some very compelling

ARGUMENTS FROM THE STATES THAT LEAD ME TO BELIEVE THAT THEIR LACK
OF CONFIDENCE IN THE PROGRAM IS PERHAPS WELL FOUNDED-

Not the least of these arguments is the fact that States have

BEEN FRUSTRATED AND THWARTED IN THEIR EFFORTS TO PROVIDE
MEANINGFUL INPUT INTO THE SITE SELECTION PROCESS. AND THAT, IN
FACT. THE POSSIBILITY OF NEGOTIATING CONSULTATION AND COOPERATION
AGREEMENTS IS SO REMOTE AS TO BE TOTALLY OFF THE HORIZON-

But EVEN SOME OF THE TECHNICAL ASPECTS OF THE PROGRAM APPEAR
TO BE IN JEOPARDY, AND DESERVE SOME CAREFUL SCRUTINY- FoR. WHEN
SOME OF THE VERY PEOPLE WHO WERE INVOLVED IN FORMULATING THE
SELECTION PROCESS BEGIN TO CRITICIZE THE RESULTS, AND WHEN THE
BODY ULTIMATELY RESPONSIBLE FOR LICENSING THE DISPOSAL FACILITY
RAISES SERIOUS QUESTIONS ABOUT THE DEPARTMENT'S INTERPRETATIONS
OF VARIOUS FACTS, THEN I REALLY START TO WORRY-

Mr- RuSCHE, FOR someone as dedicated, HARD-WORKING, AND
OPTIMISTIC AS YOU ARE, I HATE TO PAI-^T SUCH A BLEAK PICTURE FOR

YOU- But I cannot deny the fact that we are all very concerned-
And we are all very anxious to have you present your own

ASSESSMENT OF THE SITUATION- AnD WE ARE HOPEFUL THAT YOU WILL
give US REASON TO RENEW OUR FAITH IN THE PROCESS-

I WISH AGAIN TO OFFER YOU, AS I DID SECRETARY HeRRINGTON LAST
WEEK, MY SINCEREST PLEDGE OF ASSISTANCE TO SEE THAT THIS PROGRAM
GETS BACK ON THE RIGHT COURSE-

334

SENATOR MARK 0. HATFIELD
COMMITTEE ON ENERGY AND NATURAL

RESOURCES •

HEARING: BEN RUSCHE, DIRECTOR, OFFICE OP

CIVILIAN RADIOACTIVE WASTE MANAGEMENT
FEBRUARY 5, 1987

Mr, Chairman:

First, I want to convey my thanks to you for having agreed to
hold this series of hearings on this Issue of monumental
Importance to the Pacific Northwest and the rest of the nation.
During the last session of Congress It became apparent that the
site selection process for the high level repository was In
jeopardy. Accordingly, I believe that the early scheduling of
these proceedings In the 100th Congress is a testament to your
commitment to get the site selection process back on track.

The previous two days of hearings on this subject have Indicated
that the members of this committee are undivided in their belief
that the Department of Energy is mismanaging Its duties as
specified by the Nuclear Waste Policy Act. Like other Senators,
I am concerned that the Department's proposed actions with regard
to the siting of a second repository, as well-meaning as they may
be, may place the entire waste disposal program in danger. While
I recognize that the Nuclear Waste Policy Act may not be a
perfect legislative vehicle, and does place a terrific burden on
the Department of Energy, the Department's recent proposals as

335

outlined In Its revised Mission Plan are obvious mlsreadlngs of
the Act's provisions. I would encourage the Department of Energy
to dispense with these proposals and adhere to the law as it was
written by Congress.

.Although the State of Oregon is not one of the three suggested
host states for the first repository. It does have an Intense
Interest In the outcome of the site selection process. The
Hanford site, In the State of Washington, Is located In close
proximity to the Columbia River. The Columbia River, which
separates the states of Oregon and Washington, is Oregon's most
important waterway. The precious waters of the Columbia and its
tributaries are used for a myriad of purposes including
navigation and commerce. Irrigation, drinking water, and the
generation of electrlcty, to name Just a few. The contamination
of this great river would represent a blow from which Oregon
never could recover completely. The potential hazard that the
siting of the repository at Hanford represents for Oregon is
helghthened by the fact that the Columbia River flows past
communities that comprise more than half of Oregon's population.

I want to make It very clear that I do not oppose the siting and
construction of a waste repository. Our nation has a growing
Inventory of nuclear waste which must be disposed of safely, and
the Department of Energy has been charged with carrying out that
arduous task. However, the Department must not base its decision

336

on political or other non-scl entl f Ic considerations, as some
preliminary Information already suggests.

It Is my hope that the Department of Energy will heed the advice
and warning of this committee and turn this program around. The
Congress has given the Department a road map to follow - the
Nuclear V/aste Policy Act. Any large-scale excursions away from
this map surely will result In peril both to the repository
program and to the nation as a whole.

Thank you Mr. Chairman for allowing me this time to present my
testimony before the Committee.

337

STATEMENT OF SENATOR HECHT

Mr. Chairman, I would like to thank you for holding this third
hearinq on our nation's hiah level nuclear wa«.te disposal program.

We have heard a lot during the last two weeks on this issue, and
we've been able speak with representatives from other nations as
well. To use Secretary Herrington's analogy, T hope the Energy
Department has gotten the message that its Board of Directors does
not exactly endorse the Department's activities of the last two
years.

I do believe we can see orogress in two areas, although there is
still much to be done. Last week the Energy Department finally
made it clear that they will obey the law and support a second
repository. Now we have to convince the Department that they
should work on that repository according to the schedule required
by the law.

Secondly, and this is particularly significant from Nevada's
perspective. Energy Secretary Herrington sat in front of us last
week and agreed that I was right last year when I argued that we
need to investigate any technical relationship between the
necessary and continued nuclear testing at the Nevada Test Site,

338

( name )
(date)
Page 2

and the location of a possible repository a mere fifteen miles
away. If the weapons tests are going to cause marimade earthguakes
around a waste repository, we better know about it before we build
the repository.

T hope, Mr. Chairman, that under your leadership this Committee
will be able to find a \-iay to straighten out a program that so far
has not fulfilled c5ur expectations.

339

STATEMENT OF BEN C. RUSCHE, DIRECTOR, OFFICE OF CIVILIAN
RADIOACTIVE WASTE MANAGEMENT, DEPARTMENT OF ENERGY

Mr. RuscHE. Mr. Chairman, Members of the Committee, I am de-
hghted to have the opportunity to meet with you today. Following
our discussion with Secretary Herrington last week, it seemed to
me that some continuation of the discussion and perhaps some ad-
ditional areas might be productive. So I welcome the opportunity.

I have a statement that has been prepared, and in light of your
immediate invitation, I would like to request that the full state-
ment be included in the record, and I will, after a few moments,
try to summarize it as briefly as I can.

The Chairman. Without objection.

[The prepared statement of Mr. Rusche follows:]

340

STATEMENT BY

BEN C. RUSCHE, DIRECTOR
OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT
U. S. DEPARTMENT OF ENERGY

BEFORE THE

ENERGY AND NATURAL RESOURCES COMMITTEE
UNITED STATES SENATE

FEBRUARY 5, 1987

341

Mr. Chairman and Members of the Committee:

I appreciate the opportunity to appear before you today to
discuss recent developments and issues of concern to the
Committee regarding the program being carried out under the
Nuclear Waste Policy Act of 1982 (NWPA) .

Last week, we released a draft amendment to the Mission Plan
for the Civilian Radioactive Waste Management Program and the
Secretary testified before you to discuss the purpose of the
information contained in the draft amendment. We have sent it to
States and affected Indian Tribes, the Nuclear Regulatory
Commission and other Federal agencies for comment and have made
it available for public inspection. During the 60-day comment
period, we plan to meet with affected States and Indian Tribes to
answer any questions they may have regarding the amendment that
may assist them in formulating their formal comments.

The purpose of the Mission Plan amendment is to keep
Congress, as well as others, informed on progress in the program.
When the Mission Plan was issued in 1985, we said it is "today's
best estimate of the scientific, engineering and institutional
information needed to make informed decisions as we proceed with
developing ... the disposal system." We explained that it is a
planning document, and as such, we would review it annually and
revise it on an as-needed basis. The purpose of amending the
Plan is to ensure that it reflects current significant develop-
ments and plans.

342

The draft amendment released last week is the first such
amendment and presents our estimate of how and on what schedule
we believe we can best fulfill our responsibilities in carrying
out the repository program. After the 60-day comment period, we
will revise the amendment in response to the comments as
appropriate and will submit it formally to Congress.

The focal points of the draft Mission Plan amendment

are:

Achievements in the first repository program including

the nomination and recommendation of sites for detailed

site characterization;

As a result of reevaluations of the work necessary to

proceed, a five-year extension of the schedule for the

first repository;

New waste-generation data that, along with other

considerations, indicate that it is prudent to

indefinitely postpone site specific activities for the

second repository while continuing technical

development activities;

Developments concerning the submission to Congress of a

proposal for a monitored retrievable storage (MRS)

facility as an integral part of the waste management

system; and.

Actions taken and progress made toward better defining

the consultation and cooperation process with eligible

States and affected Indian Tribes.

343

with these points in mind, I would like to discuss the
status of the program as it is reflected in the draft Mission
Plan amendment.

First Repository

Last May, DOE nominated five sites in Mississippi, Nevada,
Texas, Utah and Washington as suitable for characterization and
issued Environmental Assessments for each of those sites. The
Secretary recommended to the President three of those sites for
characterization as candidates for the first repository. The
three sites are: the Yucca Mountain site in Nevada, the Deaf
Smith County site in Texas and the Hanford site in Washington.
The President approved the Secretary's recommendation and that
action formally marked the beginning of the site characterization
phase.

This represented a major milestone in the siting of the
first repository and years of work in gathering and analyzing
geologic and environmental data from site studies that began
before passage of the NWPA. Reaching this stage of determination
permits us to thoroughly investigate, evaluate and compare
geologic, environmental, transportation and safety factors at
each of the three sites.

Site characterization will take five-to-seven years,
depending on the site. It includes laboratory investigations;
surface-based data-collection activities, such as geologic
mapping and seismic surveys; studies conducted through the
drilling of boreholes; and studies conducted in the candidate
host rock in exploratory-shaft facilities.

344

Although we had planned to begin exploratory shaft
construction at one or two of the sites this fiscal year,
Congress, in the appropriation for the waste program for
Fiscal Year 1987, specified that no funds are to be used for
drilling any exploratory shaft at any site in FY 1987. However,
Congress did allow for site-specific work, other than exploratory
shaft drilling, to be conducted at reduced funding levels.

The current activities at or related specifically to each of
the candidate sites, include the following:

o At the Nevada site, land access is being pursued
with other Federal agencies.

o At Washington, site plans are proceeding for hydrology
tests that will precede exploratory shaft drilling.

o At the site in Texas, DOE is proceeding with its plans
for obtaining access to the land, and later next month, about 10
DOE and contractor personnel from our DOE Columbus, Ohio, Salt
Office will be moving near the site to begin setting up a DOE
office. Unlike the Nevada and Washington candidate sites, there
has been no DOE office for this program located in the State.

A further elaboration of planned activities at each of the
sites is contained in Appendix A of the draft Mission Plan
amendment .

Two major efforts under the NWPA and associated with the
beginning of site characterization are:

1. Negotiations for formal consultation and cooperation
agreements with affected States and Indian Tribes;
and,

2. The development of site characterization plans.

345

Consultation and Cooperation

The NWPA requires DOE to seek to enter into and negotiate
written Consultation and Cooperation (C&C) agreements with states
and affected Indian Tribes after approval of candidate sites for
characterization, or earlier, if an eligible State or Indian
Tribe requests. Some negotiations have occurred, but as yet no
C&C agreements have been concluded. The draft amendment to the
Mission Plan contains a report of actions taken and progress made
toward better defining the consultation and cooperation process
with eligible States and Indian Tribes.

Given the nature of the program and the reality that the
perspectives of the States and affected Indian Tribes often
differ from DOE's, we recognize that agreements may not be
easy to reach. We plan to increase our efforts to negotiate
C&C agreements. m this regard, we are considering a number of
new initiatives to encourage these negotiations. For example,
DOE is willing to consider the adoption and implementation of de
facto agreements or memoranda of understanding that would contain
less than is required to be in the C&C agreements should the
State or affected Indian Tribe find this advantageous. This
could allow both parties to adopt agreed-on procedures
immediately, even before the C&C agreement is fully developed.
Such an approach is attractive because it recognizes the
importance and the achievements of the negotiation process that
has been under way since the NWPA was signed into law.

346

But C&C negotiations and agreements are but one part of the
process of working with affected parties. Every telephone call,
every discussion, every meeting, every piece of paper exchanged
between DOE and States, Indian Tribes and the general public
provides opportunities for "consultation" and "cooperation" among
parties.

We believe these daily opportunities represent the spirit and
intent of the requirements regarding participation, consultation and
cooperation. And we look forward to expanding these
opportunities. In addition, I look forward to arrangements where
State and Tribal technical staff actually work shoulder to
shoulder with us, to assure active participation in site
characterization.

There have been a number of actions outside C&C
negotiations which have been taken recently in response to
recommendations by the States and Indian Tribes, For example:

o The participation by States and affected Indian Tribes
in DOE coordinating groups; and,

o The expansion of the Quarterly Meetings with States and
affected Indian Tribes for the public to attend.

There are currently twelve Coordinating Groups and they are
listed in Table 1. The Coordinating Groups meet two-to-four
times per year and provide a forum for the discussion of common
problems and their resolution. It is expected that additional
coordinating groups will be established and that existing ones
will be abolished as requirements and priorities change.

347

TABLE 1.

EXISTING COORDINATING GROUPS

^^/u^^T^"^ coordinating groups are currently in existence and
supported by their own charters:

o Site Characterization Plan Coordinating Group
o Geoscience Coordinating Group
o Repository Coordinating Group
o Waste Package Coordinating Group

Performance Assessment Coordinating Group

Licensing Coordinating Group

Quality Assurance Coordinating Group

Transportation Coordinating Group

Institutional Affairs Coordinating Group

Project Management Coordinating Group

OCRWM Information Resources Management Coordinating Group

Environmental Coordinating Group

348

since Summer 1984, Quarterly Meetings have been held
with States and affected Indian Tribes to discuss topics mutually
agreed upon for the agenda. As a result of recommendations by
the States and Indian Tribes, these meetings will now be open to
the public. The first such meeting is scheduled for February 12
in Spokane, Washington. The agenda is being coordinated among
the States, the Indian Tribes and DOE. A public announcement is
being made by DOE Headquarters and the nearest DOE Operations and
Project Office in Richland, Washington. The draft Mission Plan
amendment will be a major subject for discussion at the meeting.

I mention these activities because I believe it is important
to point out that while foirmal consultation and cooperation
negotiations are only required to begin after a candidate
repository site is approved for site characterization,
consultation and cooperation is an everyday activity and
responsibility — DOE's responsibility, the States' and Indian
Tribes' responsibility — the responsibility of all the affected
parties to consult and to cooperate.

Site Characterization Plans

Another major effort associated with site characterization
is the preparation of a plan for characterizing each site.
This plan — called a site characterization plan (SCP) — is a
major and intensive effort. For example, the scope and magnitude
of this effort can be gauged from the SCPs now being prepared for
publication: in each plan, the description of the characteriza-
tion program alone covers several thousand pages.

349

Copies of each draft chapter are being shared with the NRC,
States, and Indian Tribes for comment as they become available.
The NWPA requires that such a plan for any candidate site be
prepared, made available to the public and that public hearings
be held by DOE in the vicinity of a candidate site before
proceeding to sink the exploratory shafts at the site.

The SCPs are key documents and of major importance to States,
Indian Tribes and the public — as well as to NRC and to us.
These plans will contain:

o A detailed specification of the information to be
developed for each site, the conceptual waste package and repository
design, and the issues that need to be addressed;

o Schedules for a logical sequence of testing and the
timing for the issuance of publications on technical procedures,
technical findings, and issue resolution; and,

o Milestones and decision points to be encountered along
the way.

There is intense interest in the SCPs, since they will guide
DOE during the site characterization phase until a license appli-
cation is submitted to the Nuclear Regulatory Commission. The
SCPs and periodic progress reports that DOE will be making, will
have a crucial role in interactions with the NRC, and as vehicles
for presenting information to the States, Indian Tribes,
Congress, utilities and the public.

77_10A 0-87-12

350

The main purposes of site characterization are to determine
whether a candidate site is suitable for a repository and to
provide the bases for the selection of a repository sice and
for the construction authorization request to the Nuclear
Regulatory Commission — tasks that have never been done before.
Therefore, finding answers to relevant questions are the main
focus of site characterization.

First Repository Schedule

The experience gained in achieving the important milestone
of approval of sites for characterization, and advances in the
technical planning of the program, have led us to reassess the
program and schedule for the first repository. The new schedule
— as presented in the draft Mission Plan amendment — shows a
5-year extension of the date for the waste acceptance at the
first repository, from 1998 to 2003.

This 5-year extension of the operation of the first
repository is primarily a result of additional time needed in the
near term. This is not the first time that we have come to
realize that additional time is needed to carry out certain
activities required by the NWPA. To better illustrate where
additional time has been needed and where we believe it is needed
now. Table 2 in my statement shows the current schedule as
compared to the schedule contained in the 1985 Mission Plan.

There are several reasons for the near-term extension.
Among them are:

o The experience to date that more time has been required
to involve States and Indian Tribes in review and
discussion.

351

TABLE 2.
NUCLEAR WASTE POLICY ACT MILESTONES
COMPARISONS WITH NWPA, JUNE 1985 MISSION PLAN, AND DRAFT
AMENDMENT TO THE MISSION PLAN

ACTIVITY

NWPA
REQUIREMENT

1985

MISSION PLAN

1987 DRAFT
AMENDMENT

ACTUAL

Identify States

w/ potentially

acceptable sites 4/7/83

State/Tribal
notification as to
being potentially
acceptable sites 7/7/83

Issue Siting

Guidelines 7/7/83

Is 5ue Mission

Plan 5/84

Issue Environmental
Assessments

1st Repository
Nominat ion/Recommendat ion
of sites suitable for
characterization 1/1/85

Presidential Approval
of sites

8 . Seek to enter into
C&C agreements

9. Issue SCP's

7/86

10. Initiate Construction
of Exploratory Shafts

12/84

11/85

11/85
1/86

3/86 tuff
3/86 basalt
10/86 salt

3rd Qt. 86 tuff
3rd Qt. 86 basalt
3rd Qt. 87 salt

2/2/83

2/2/83
12/84

6/85

5/86

5/86
5/86
7/86 -■

mid-87 tuff
mid-87 basalt
1st Qt.88 salt

2nd Qt. 88 tuff
3rd Qt. 88 basalt
4th Qt. 89 salt

* Informal C&C negotiations were initiated with the State of Washington, and the Yakima
and Umatilla Indian Tribes in mid 1983

352

ACTIVITY

NWFA
REQUIREMENT

1985
MISSION PLAN

1987 DRAFT
AMENDMENT

ACTUAL

11. Testing to support
DEIS complete

12. Issue FEIS

13. President recommends

site to Congress 3/31/87

14. Site designation
effective

15. Submit License
Application to
NRC

16. NRC issues
Construction
Authorization

17. Initiate Repository
Construction

18. NRC issues License
for Phase 1
Operations

19. Phase 1 Repository
Operations begins

20. Phase 2 Repository
Operations begins

5/91

12/89

1st Qt.

92 tuff

1st Qt.

93 basalt

1st Qt.

93 salt

12/90

4th Qt.

1994

3/91

4th Qt.

1994

5/91

1st Qt.

1995

5/91

8/93
8/93

1st Qt. 1995

1st Qt. 1998
1st Qt. 1998

12/97

1st Qt.

2003

1/98

1st Qt.

2003

2/01

2nd Qt.

2006

353

ACTIVITY

NWPA
REQUIREMENT

1985

1987 DRAFT

ACTUAL

MISSION PLAN AMENDMENT

2nd Repository
Nominat ion/Recom-
mendation of sites
suitable for
characterization

7/1/89

2. President recommends
2nd Repository
site to Congress 3/31/90

10/91 mid- to late-90s

3/98

2010 to 2020

Submit to Congress
report describing
R&D activities
necessary to develop
MRS proposal 7/83

Submit to Congress
detailed study on
the need for and
feasibility of MRS 6/1/85

6/83

1/86

As soon as
permitted

354

o The recognition that more time should be provided in
the future for consultation and interaction with the
States, affected Indian Tribes, and other parties; and,
o The recognition that more technical information is
needed .

Since passage of the NWPA, many parties have insisted that,
given the controversial nature of the program, the schedule
specified in the Act was not realistic and not achievable. And
on several occasions, the schedule and processes prescribed in
the NWPA have been expanded, as shown in Table 2, to provide
additional time for input by affected and interested parties, for
additional review of DOE actions or documents and for
incorporation of comments or resolution of issues.

At my confirmation hearing before this Committee almost
three years ago, I pledged that the schedule would not be allowed
to prevail at the expense of technical excellence, safety, and
public participation. And I continue to maintain that position.
I respect the timetables, but where additional time appears to be
needed to ensure the quality of the product, as a manager, I must
recommend additional time.

We now recognize that more information, more consultation
and more time is required in the near-term to ensure development
of the first repository for long-term (permanent) disposal. We
will remain optimistic in our planning, but realize that for many
early actions, we underestimated the time required. Furthermore,
DOE recognizes the potential for contingencies that are yet to
appear.

355

Second Repository

With regard to the indefinite postponement of site-specific
activities for a second repository, the Secretary's announcement
last May was based on a number of factors, including declining
projections of the rates at which spent fuel will be discharged
from commercial nuclear powerplants; progress in siting the first
repository; the expectation of Congressional approval for the MRS
facility; and, responsible fiscal management.

I would like to point out, again, that we plan to propose
construction of a second repository. In fact, even the lowest
current projections of spent fuel generation indicate that the
second repository will be needed. DOE, therefore, remains fully
committed to a two-repository system.

Our current program regarding the second repository focuses on
technology development. A significant portion of these studies
is expected to involve cooperative efforts with other countries
through continuation of the current program of international
cooperation, such as that with Canada where we are participating
with them in the extension of the depth of the shaft at their
Underground Research Laboratory in Manitoba near Winnipeg.

A requirement related to the second repository is
stated in the NWPA in terms of the maximum amount of spent fuel
that the Nuclear Regulatory Commission can allow to be emplaced
in the first repository until a second repository is in
operation. The hfWPA sets this figure at 70,000 metric tons of
uranium.

356

Under the revised schedule for the first repository, this
limit would be reached sometime after the year 2025 if a maximum
annual rate of waste emplacement is 3,000 metric tons. The
actual schedule for when the second repository should be
considered, however, should be based on more-refined estimates of
spent fuel generation rates, the time needed for the first
repository to reach the limit of 70,000 metric tons and the time
needed to develop the second repository.

The experience of siting the first repository suggests that
site-specific screening leading to the identification of
potentially acceptable sites should start about 25 years before
the start of waste acceptance for disposal. Therefore, to have
the second repository available by about 2025, site specific
studies need not start until the middle to late 1990s.

Monitored Retrievable Storage (MRS)

The 5-year extension for start-up operations at the first
repository, means a repository would not start operation in 1998.
We believe that the most advantageous course is the development
of an MRS, With an MRS capable of receiving waste in 1998, we can
begin receiving waste in 1998 as well as provide the other major
benefits an MRS provides as part of the integrated waste disposal
system.

357

We had originally intended to submit a proposal on MRS to
Congress in June 1985, but we notified Congress of a delay in the
submission until January 1986. In August 1985, the State of
Tennessee filed suit against the Department claiming that the
Department failed to consult properly with the State prior to the
identification of proposed sites for the MRS facility. We /
believe that we went beyond the requirements of the Act by
allowing States and local communities to review and comment on
our studies well before we submitted the proposal to Congress.
The State provided formal comments on the proposal which will be
included with our proposal when submitted.

On February 5, 1986, the U.S. District Court for the Middle
District of Tennessee ruled in favor of the State and
subsequently, on February 7, issued an injunction prohibiting the
Department from submitting the MRS proposal to Congress.

The decision and the injunction were appealed by DOE to the
U.S. Court of Appeals for the Sixth Circuit. On November 25,
1986, the Court of Appeals ruled in favor of DOE's position in
the dispute, indicating that the actions taken by the Department
in identifying sites for the MRS and in consulting with the State
did not violate the Act.

358

Subsequently, the State filed a petition for stay or
extraordinary writ of injunction and for a rehearing with a
suggestion that the case be reheard en banc. On December 31,
1986, the Circuit Court denied the petition for a rehearing, but
on January 7, 1987, granted a stay for 30 days to allow the State
to appeal to the Supreme Court. Assuming a timely filing of a
writ of certiorari by the State, the stay will continue until
final disposition by the Supreme Court.

Our intent regarding MRS is to fulfill our statutory
obligations under the Act and submit the proposal on MRS to the
Congress at the earliest date practicable.

Conclusion

Following the President's approval of the Secretary's
recommendation to characterize sites in Nevada, Texas and
Washington for the first geologic repository, and the Secretary's
decision to recommend the redirection of the second repository
program by postponing indefinitely site specific work until the
mid-1990 's, we have reevaluated the program and schedule to put
in place the Nation's high-level radioactive waste disposal
system. Our conclusions and proposal are reported in the draft
Mission Plan amendment. We recognize that there are areas of
congressional concern, particularly involving the first and
second repositories and the MRS proposal. These matters are
addressed in the draft Mission Plan amendment.

359

We believe we have honored our commitment to provide through
the draft Mission Plan amendment a basis for informed evaluation
of the program and for the Congress to provide direction needed
for the conduct of the program. We believe that the plan in the
draft amendment presents the program that will allow us to ful-
fill best the objectives of the Act in light of our experience
and best judgment,

Mr. Chairman this concludes my remarks. I thank the
Committee for the opportunity to discuss the program and to
answer questions you may have.

###########

360

Mr. RuscHE. Let me try to accept your invitation and talk about
nuclear waste, and I hate to use the word "tutorial," but at least
give you some background information that might be useful for all
of us.

Nuclear power, born in the 1940's, as it were, was a result of the
Nation's weapons attempt, that is, the activity to produce nuclear
weapons. Also, the Nation gained the technology to use this power-
ful atomic force as a peaceful, safe power source for not only our
Nation, but for the world.

The very early people who were involved, and although I was not
involved in the 1940's, I certainly began to be involved in the very
early 1950's, and I remember as a youngster coming out of college
and being introduced into the nuclear environment. We didn't have
many courses; the courses were "do-it" courses, learning to do it in
the laboratory, learning to do it on site, so to speak, and if I recall
correctly, one of the very first questions that I encountered was,
"What do you do with the waste that is left over from such an op-
eration?"

Some folks seem to think that nuclear waste is a very peculiar
circumstance, that it is unnatural, as it were. That the nuclear
process producing this stuff that we call waste must have some-
thing wrong with it.

I would start by noting that every physical process that we know
of that consumes energy, and many that are otherwise active, but
certainly those that consume energy, produce additional products.
Generally, these products are non-useful, in some cases they are
useful, but virtually everything we do biologically or physically,
produces waste. In that sense the nuclear reaction is common to all
kinds of physical reactions.

In the very early part of the nuclear age, there was not nearly as
much knowledge as we have now. There was knowledge that said
to all of us that this material certainly has unique properties and
that we need to watch over it and eventually we will need to dis-
pose of it.

So in the very early days of the nuclear materials program for
National security and defense, waste that resulted from those proc-
esses was stored as a liquid, or a liquid salt mixture in large tanks.

The Chairman. Now this is after reprocessing of military wastes?

Mr. RuscHE. After reprocessing.

The Chairman. Tell us the difference between military waste
which has been reprocessed and this kind of waste, which is not re-
processed.

Mr. RuscHE. Military waste, following reprocessing, generally ap-
pears first as a liquid, and its principal difference in terms of con-
tent is that some of the long-lived radionuclides have been reduced
in concentration. We would try to recover the uranium and try to
recover the plutonium which are desirable products.

From the standpoint of a waste system, such as we are talking
about today, that is important perhaps in very long-term consider-
ations, but of relatively less importance from the design point of a
repository.

The Chairman. Let's make this clear to everyone. We are not
dealing with liquid waste, because everyone remembers that up in
Hanford, the liquid waste, reprocessed waste, was put in tanks and

361

has leaked out and give problems. We are not dealing with that
here, are we?

Mr. RuscHE. The repository system or disposal system which you
established under the Nuclear Waste Policy Act is intended to dis-
pose of solid waste.

The Chairman. And, as a matter of fact, we have the technology
now, even with reprocessed waste, to put that in glass form or vitri-
fied form, so that that should not — we have the technology to deal
with that, whether we have the will to do it or not — even though
we are not dealing with that here, they can do that successfully.

Mr. RuscHE. But Senator, indeed, we are planning to do it. That
is, the defense waste which is being produced, has been produced at
Savannah River, has been produced in Idaho, and to some extent in
the future, at Hanford, will be converted to a vitrified material.
You will recall that there is a large plant being constructed at Sa-
vannah River for the purpose of vitrifying all of that waste at Sa-
vannah River. Eventually it will be done, and that waste then will
be a part of the disposal system that we are talking about.

The Chairman. Okay. Let's get back to this waste that we are
dealing with.

Senator Evans. Mr. Chairman, I wonder if I could just interject a
question at that point. I think you said that the defense waste was
liquid. Defense waste at Hanford still is liquid, isn't that true?

Mr. RuscHE. The wastes that are in tanks are in a water envi-
ronment. The wastes, themselves, generally are in a salt or sludge-
like mixture, but it is in a wet or water-like environment.

Senator Evans. There are no current plans for vitrifying that
any time soon.

Mr. RuscHE. Senator, I think you know that the defense waste
issue is under consideration at Hanford by virtue of a programmat-
ic, or an EIS on the waste program at Hanford. The new waste that
is being generated at Hanford is anticipated for sure to be vitrified,
and by the same manner and program that is being done at Savan-
nah River.

The waste residue, which has had extracted from it some compo-
nents that have been made useful from a long time ago — the so-
called 140-or so old tanks, is a matter that is under discussion in
that EIS. I am not sure what will come out of that, but I think it is
premature to say that under no circumstances would it receive fur-
ther treatment. It might, but it might turn out that we would all
agree that an additional, or other kind of mode would be satisfac-
tory.

Senator Evans. It is not premature. It is long past decision time.

The Chairman. I certainly agree with the Senator from Wash-
ington that that liquid waste, military waste which we are not
dealing with here — I have to keep saying that over and over again,
so we can get that message through — but that that can be safely
dealt with; whether it will and in what manner it will be safely
dealt with is another question.

But it can be and should be either vitrified or otherwise safely
dealt with. But that liquid waste in Washington is a different thing
from the civilian waste that we are dealing with in these repositor-
ies.

362

Senator Hecht. Excuse me. Would you clarify one point, Mr.
Chairman?

The Chairman. Certainly.

Senator Hecht. You say military waste is going to be put into
the repository, is that not correct?

The Chairman. No. Military waste will not be put in these re-
positories.

Senator Evans. No, I think that is incorrect.

Senator Hecht. That is not right.

Mr. Rusche. Vitrified military wastes will be placed in the repos-
itory.

The Chairman. Not the kind of liquid waste we are talking
about in Washington.

Mr. Rusche. Correct.

The Chairman. Only that which comes from Savannah River,
which has been vitrified and is in solid form.

Senator McClure. There is also another body of military wastes
in Idaho that will go to a permanent repository when it is built.
Those will go through the chemical treatment plant, they are cal-
cined wastes and they are solid in form.

Mr. Rusche. And very likely they, too, will be vitrified before
they are placed in the repository.

The Chairman. The point I want to make clear here is that we
are not talking about the kind of liquid waste that can leak out,
that we are putting in what I call civilian repositories. People have
this picture of waste that can leak.

Now it might otherwise leech out, but it can't leak out. Please go
ahead.

Senator Hecht. Excuse me, Mr. Chairman. Military waste will be
in the repository; is that not correct?

Mr. Rusche. Mr. Chairman, may I make a statement to try to be
precise?

The Chairman. Yes.

Mr. Rusche. Section 8 of the Act required the President to give
consideration as to whether there should be a separate repository
for military wastes, or whether it should be stored and disposed of
finally in a common repository. The President made that determi-
nation about two years ago, the determination namely that there
need not be a separate repository; that military waste placed in the
proper form could and should be, and now we plan, to be disposed
of in the same repository that Senator Hecht is referring to.

It is not liquid waste.

Senator Evans. Mr. Chairman, I brought it up and I am very
much aware of everything you have said in terms of the differ-
ences, but I intend to keep bringing it up until we get some relief.
We have waited for 40 years, when they slopped it onto the sand at
Hanford and we have not gotten any relief yet.

The Chairman. Yes, I quite agree that that ought to be done,
and we will continue to bring that up. I know Senator Adams also
feels the same way. I have heard him say that many times.

Senator Adams. Chairman, I do, and what we are concerned
about is if we vitrify the military wastes over there, we have a
process for doing it, and it all ends up in the same repository, we

363

have a real transfer problem at that point. That is why we brought
it up and continue to bring it up.

The Chairman. Please proceed.

Mr. RuscHE. The waste that arises from civilian nuclear power
plants in the United States and which will be disposed of in the
repository will be disposed of as spent fuel, which is a solid materi-
al encased in cladding, generally zirconium cladding, which was de-
signed for and has, in general, been shown to be adequate to pro-
tect and contain the nuclear wastes, as it were, in the fuel in oper-
ation in the reactor, and likewise, will be a good container for it
when it is placed in the repository.

In addition, that material containing the radioactive waste would
be additional encased in sealed containers and those sealed con-
tainers placed in favorable chemical environments in the reposi-
tory, all of which are for the purpose of providing the assurance
that, first, none of the material leaks — but we don't make perfect
systems. If it does leak, that it is in a circumstance where it would
be retained by the environment in which it is placed, and finally,
in the design of the repository, placed in a site where even if it has
leaked and even if it is there, its relatively low concentrations or
content would be restrained from or isolated from the biosphere, or
from people for a very long time.

The Chairman. All right. Let's get a little more basic here. Now,
a fuel rod looks like a rod; zirconium looks like stainless steel. It is
a metal. Can it rust?

Mr. RuscHE. It cannot rust, but it can corrode.

The Chairman. It can corrode, and what is the period of time in
which it can corrode?

Mr. Rusche. It depends on the chemical condition, but under the
conditions that we would expect, it would be for a long time. I don't
think I can specify 10 years or 10,000 years. The package which
consists of the several elements that I have just discussed is aimed
for lasting a minimum of 300 years, and hopefully 1,000 years.

The Chairman. When you say the package, what do you mean
the package?

Mr. Rusche. The fuel rod inserted within the sealed container.

The Chairman. Is it the container or the fuel rod?

Mr. Rusche. The combination. That package combination.

Senator Melcher. Might I inquire when this encasement proce-
dure starts?

Mr. Rusche. The fuel encased in zirconium is placed in the zirco-
nium when it is manufactured, before it is inserted in the reactor.

Senator Melcher. That is already encased before it leaves the
power plant.

Mr. Rusche. Yes, indeed.

Senator Melcher. Then you mentioned several other procedures
of encasement. When do they occur?

Mr. Rusche. They would occur, depending on the final design of
the waste disposal system, they might occur at an MRS, which is
our proposal in the draft Mission Plan and has been our proposal,
which would be a central facility for receiving such material and
providing this additional packaging. If we do not have an MRS, we
would have facilities at the repository in which this would be done
before it is emplaced in the geologic environment.

364

Senator McClure. Mr. Rusche, I think you have missed one im-
portant part, and that is, it is placed in a cannister before it leaves
the power plant for transportation.

Mr. Rusche. It is placed in a shipping cask, Senator, which may
not be the same package that I was referring to. It is certainly
placed in a safe, highly reliable and well-tested shipping container
to transport it to either the MRS, or to the repository where it is
placed in this fmal sealed package that I mentioned.

The Chairman. Now, Mr. Rusche. The rods come out of the reac-
tor, and you put them in a swimming pool to cool them down for
how long — that is, at the site?

Mr. Rusche. The time required or the time utilized for cooling is
purely set by the circumstances in which you are operating. The
requirements of the Nuclear Waste Policy Act are that we design a
waste disposal system which is capable of receiving such fuel rods
after they have been cooled for only five years. With the operation
of the industry has it has been now, for many years, the fuel that
we will dispose of in the repository at the beginning of disposal will
be more than 30 years old, having been cooled generally in pools
for about 30 years.

The Chairman. Now tell us the nature of this waste. It comes
out. It is physically hot; it is also radioactive. It is emitting gamma
rays. Tell us about the waste heat and the gamma rays and the
alphas and betas. Just in a basic way.

Mr. Rusche. Nuclear waste is waste and possesses its properties
because in the fission reaction, all of the radioactivity that is poten-
tially available does not occur, or is not released at the instant of
the fission event. That is, the energy that creates heat which pro-
duces power.

A small fraction of that, quite a bit less than one percent, re-
mains to occur at some later time as a part of the natural radioac-
tive process, and in fact, that is what constitutes the radioactivity
ill the waste, as it were.

That radioactivity appears either as gamma rays or electromag-
netic radiation, such as analogously, x-rays, penetrating radiation,
or beta particles, which are essentially electrons which are much
less penetrating, and alpha particles which are even less penetrat-
ing but highly energetic.

As time passes, these products decay. That is, per unit time,
every unit time, some fraction of these particles lose their radioac-
tivity. That time is called the half-life. The half-life is very simply
the time required for a given quantity of any of these products or
materials to lose half of their radioactivity.

The principal constitutents that cause us to give attention to this
waste for such a long period of time are strontium and cesium and
very long-lived nuclides, such as uranium, but particularly plutoni-
um, technetium and some of the iodines.

There are many other radioactive species, but they tend to have
either shorter lives or less energetic particles. Therefore, the bulk
of our attention is focused on the isotopes that I just mentioned.

The Chairman. You don't have to tell us what the isotopes are,
but the rods come out of the reactor. They are, in effect, red hot
and there is some curve that goes down like this, pretty fast, on

365

waste heat which is the same curve, as I understand it, that it goes
down for gamma rays or radioactivity.

How long is that curve? How quickly does it cool? Tell us that?

Mr. RuscHE. Perhaps the best way to think about that is to try to
relate it to something natural. How long would it take the material
to return to some kind of radioactivity concentration, about like we
see in nature? In fact, this is the criterion that the Environmental
Protection Agency selected for making its specifications for the
waste program; namely, that you should design the program so
that you would have high confidence that waste disposed of would
be retained until it was no more hazardous than a uranium ore
body.

Now uranium ore bodies have different concentrations of urani-
um in them. For an ore body that had two or three percent urani-
um in the ore, the time required for the fuel to decay to that level
of non-hazard, so to speak, is of the order of several hundred years.

The Chairman. Less than 1,000?

Mr. RuscHE. For an ore body of two or three percent, that is cor-
rect. Most ore bodies are not two or three percent. There are some
that have that higher concentration.

The Chairman. When you say less than 1,000, I remember the
figure of 600 years for two to three percent; is that right?

Mr. RuscHE. It is of that order. Again, these numbers can be
dealt with very precisely given a precise set of conditions. I am just
dealing with some general ones.

The Chairman. But we can say, in general, less than 1,000
years?

Mr. Rusche. For an ore body of two or three percent. An ore
body of one percent, it probably would take something like a couple
of thousand years, and there are many ore bodies of one percent
concentration, ore bodies that we are now using. For a concentra-
tion of a tenth of a percent, it would probably take something like
10,000 years. That is why you hear us talking in ranges of 1,000 to
10,000 years in much of the work and design work that we are
doing in the repository system.

Senator Evans. Mr. Chairman, I am not sure that that gives
really an accurate picture. When you say an ore body of two to
three percent, how frequently in nature do you find an ore body of
two or three percent?

Mr. Rusche. They are relatively rare. One percent are quite fre-
quent, and a tenth of a percent are in a lot of places.

Senator Evans. What is relatively rare?

Mr. Rusche. I don't know how many two or three percent ore
bodies

Senator Evans. Are there?

Mr. Rusche. Yes.

Senator Evans. Where?

Mr. Rusche. I believe some of the Canadian ore bodies and a
couple of the Australian ore bodies are of that concentration. One
percent ore bodies are fairly widely available, and I believe a
number of the Canadia ore bodies are greater than one percent.

Senator Evans. Wouldn't it be more appropriate to use that av-
erage rather than to try to be clear at the high end and minimize
the timeframe?

366

The Chairman. The point is the same, I mean whether you say it
is 1,000 or 2,000 years — I mean, it is 100,000 years that you have to
keep this. Now, between here and 1,000 years, what happens? How
quickly does it drop off? Does it drop off evenly, or what?

Mr. RuscHE. It drops off logarithmically, which means it falls off
faster at the front and then begins to fall off later as you look at
the combination because of the character of the process. That is, it
loses radioactivity by the same fraction every unit time.

The Chairman. Now, if you went in there and got some fuel rods
fresh out of the reactors and got close to them, or put them in your
hands, it would kill you pretty fast, wouldn't it?

Mr. RuscHE. It would be fatal.

The Chairman. Now, 1,000 years after that, when it is decayed
down to, let's say this one percent, and you went and picked up the
fuel rods, what would happen?

Mr. RuscHE. It probably not be a wise thing to do, but it would
certainly not be a hazard that is fatal.

The Chairman. Tell us why that is.

Mr. Rusche. Because the radioactivity had decayed over that
1,000 years intervening. In effect, you start out, if I can use a very
crude analogy, you turn off the fission reaction, such as you do
when you take the fuel out of the reactor; you end up with a
bucket full of radioactivity, and out of the bucket for every period
of time called an half-life, or take or lose half of the material that
is in the bucket.

So that if a half-life is 30 years, 30 half lives later, or about 1,000
years, you have a very small fraction remaining the bucket of that
which was originally there. For that reason, the hazard declines
with time.

The Chairman. There is a little radioactivity in everything, in-
cluding human beings, is there not?

Mr. Rusche. Human beings are more than a little. Human
beings carry a fair burden of radioactivity, or a fair nature content
of radioactivity from radioactive potassium, from tritium, and per-
haps a couple other small components. But radioactive potassium,
Potassium 40, is the primary content.

In fact, at the risk of being somewhat flip, and I don't mean to be
so, but it is an analogy that many have made. I remember Chair-
man Dixie Lee Ray making it more than once, that the radioactiv-
ity that is exchanged between two persons is related, of course, to
their proximity. Those of us who are happily married find our-
selves both receiving radiation as well as giving radiation to our
partners. That amount of radiation exchange is quite measurable.
It is not hazardous — the radioactivity is not hazardous. [General
laughter.]

Senator Evans. We also learned from her that there is more ra-
dioactivity in Democrats than Republicans.

Mr. Rusche. I have not been close enough to tell, sir. [General
laughter.]

Of course, that applies to Republicans, as well.

Excuse me, I didn't want to get us off on this note of levity, be-
cause the subject is an important one. But it does make the point;
that radioactivity is a natural feature of the environment in which
we live.

367

There is an interesting factor that I think is important for us to
all recognize, and it is that this property of nuclear waste or radio-
activity to decay, that is to decline in hazard as it grows older, is
not characteristic of chemical wastes.

We are dealing with wastes, as I said very early in our discus-
sion, that arise from all processes and chemical wastes, a very
broad category of wastes — I believe the Congress just passed and
put into law a new Clean Water Bill for the purpose of dealing
with such wastes in the environment.

Many of those wastes, in fact almost all of those wastes are non-
deteriorating, that is, they do not deteriorate with time unless you
take special steps, like to oxidize them, burn them or what-not.
Those that are elemental, like mercury, arsenic or celinium or
others, do you not change in time. They are immutable in a non-
nuclear environment. They do not decay.

Therefore, when we dispose of those materials we have to retain
them for as long as we want to protect the public from exposure to
those materials.

In the case of radioactive wastes, not only do we know more
about it, but this particular property of decay allows us to have
much greater confidence that future generations will be cared for
in a manner that we can predict and eventually, in the time peri-
ods of a few thousands years, such as we are talking about, will no
longer be subject to the hazard of the waste that we have produced.

The Chairman. Let me ask you this: When the waste comes out,
the rods come out at their hottest level, what must you do to shield
that from hurting someone? You just said that they could kill
someone. How much concrete, water or lead or whatever the mate-
rial is, do you need between you and that waste to make you per-
fectly safe?

Mr. RuscHE. You have to place between the person or the thing
you are trying to protect, and that material, an absorber and you
have just identified several; water or concrete or lead, and the
quantity depends on the density of the material. The usual protec-
tor is water. Almost all commercial power plants have the equiva-
lent of a swimming pool as a part of their facility.

They place these irradiated fuel elements that are hazardous in
the sense that we have talked about into the water for two pur-
poses. One is to protect those who would come close to them, from
exposure to the radiation. The water absorbs the radiation. The
gamma rays that we talked about, the beta particles and the alpha
particles, and it converts those to thermal energy. That is, it gets
warm.

Those same particles within the fuel element itself, as they are
passing out, deposit part of their energy and that is why the rods
themselves are warm, or hot. So, the second purpose of the water is
to remove the heat from the rod itself that does not appear as radi-
ation, but appears as thermal heat.

The Chairman. How much water do you need between you and
the rods to protect you?

Mr. RuscHE. Fuel elements that are first out of the reactor are
probably under 15 or 20 feet of water.

The Chairman. Do you need that much? Do you have a safety
margin; how much do you actually need?

368

Mr. RuscHE. Senator, I don't know off the top of my head. I
think the tenth thickness of water is about a foot. So 10 feet would
produce a shielding factor of about 10 to the 10th, and that is cer-
tainly adequate.

The Chairman. Let me suggest to you that in France, I stood
over their hottest waste shielded by three meters of concrete. I
hope, by the way, we will take a committee trip to see that in
April, as well as that in Sweden. They reprocess, put them in what
looks like milkcans and put a concrete plug in the top about three
meters thicks.

Mr. RuscHE. Three meters of concrete is about 10 feet of con-
crete, and you will recall the density of concrete is about three or
four times that of water; some concretes even more than that.
Heavy concretes. So that is more than the 10 or 15 feet of water
equivalent that I am talking about.

The Chairman. If three meters of concrete does it, why do we
want to bury this stuff 2,000 feet underground?

Mr. RuscHE. We want to bury it, wherever we bury it, primarily
to put in a place that we can have confidence that it will stay
there. We are looking for a geologically stable and predictable envi-
ronment. Now if you wanted to watch it for the rest of our lives,
and the lives of our progeny, you can put it in the can that you are
talking about, you can put it in a pool. More properly and practi-
cally, you would put it in a dry environment.

In fact, we, at the MRS, if you will recall would envision dry
storage — in effect, just a big concrete can, which would have wall
thicknesses of three or four feet as an entirely appropriate and safe
place to store it for as long as you want to watch it.

The Chairman. Well, the point is, you don't really need 2,000
feet down to protect

Mr. RuscHE. Not for shielding. You go down in geologic media to
try to find bodies of rock that are predictably stable, that is, they
have been there for thousands and millions or many millions of
years, and in mankind's experience that is about the best we can
do to try to predict what is going to happen for the next thousand
or ten-thousand of years.

The Chairman. Okay, it is stability and not for shielding.

Mr. RuscHE. Correct.

The Chairman. Tell us about the transportation. You are going
to put it in these big, specially designed trucks. How dangerous are
those?

Mr. Rusche. We think they are not dangerous at all. In fact, we
think they are safe and do not present a hazard to the public or to
workers. The practice is to take such material that has been stored
in the pools of water that we have talked about, and when it is
ready to be transported for subsequent attention, for disposal in
the case in the United States, we would transport it in casks which
are larger either steel or concrete, or a combination of steel, con-
crete and lead, which would look like a large bottle into which you
insert these materials.

These devices have been tested. They pass Nuclear Regulatory
Commission requirements, such as temperature — subjected to vari-
ous conditions — dropping, like dropping from a helicopter onto
pins, or a spike; or penetration, from shock, like running into a

369

wall, or have a train run into them, or falling off a truck. These
casks have been shown in such tests, not only in the United States,
but in the United Kingdom, in Germany, in Europe, as entirely
suitable for shipping this material.

The Chairman. We have seen the movies and they movies say
they cannot break open. We have seen the crash tests with trains,
and all of that. But let's suppose they do. You have this thing out
on the highway and you are coming into Reno, Nevada, on the out-
skirts, and it breaks open. What happens? Does everybody at the
gaming tables get killed, or what happens?

Mr. RuscHE. No, sir. You have made several very unlikely as-
sumptions that would be required to get it to break open. But if it
did break open, the material is a solid. It is not subject to volatili-
zation, or immediately passing into the air.

The Chairman. It can't explode.

Mr. RuscHE. It can't explode. It is not a nuclear bomb waiting to
happen. The attention that would be required would be to keep
people from getting close to it. If it is young fuel, its radiation level
might be high enough to want to protect people from immediate
access. Its age would determine how close you could get; and the
way you would address covering the material would be to get an
appropriate vehicle, or circumstance, in which which people could
approach it and, in effect, return it to such a shielded container.

There would be immediate explosive or distributive hazard. We
have had cases in which people have surmised that it might fall
into a river and the river is immediately contaminated. Those are
very rare possibilities, if at all.

In the physical world, one learns never to say "never 'but from a
practical standpoint, the material that is being shipped is of a form
that does not disburse easily.

Senator Adams. Mr. Chairman, if I might inquire at that point to
a very practical question, not a theoretical one. We just had
radium pellets in a truck dumped into the Snake River, so it is not
an impossible thing at all.

The Chairman. That was not nulcear waste.

Senator Adams. No, they were just pellets. What I am concerned
about is, you mentioned the casks — you have a minimum of three
transfer points where people have to handle this, but I am con-
cerned about the fact that you put this on the highway and you hit
a propane truck and you have a fire. This is not theoretical at all,
because as the Secretary of Transportation, we used to have this
happen on railroads and on the highway all the time, and all you
have to do is look on the Beltway.

You have then a temperature that is exceedingly high, and these
rods are there, and you have the potential of a melting factor and
you have various other kinds of substances, some highly corrosive,
such as various kinds of fertilizer materials, various chlorines and
so on. They hit out there on a highway and your cask is there,
what are going you going to do about the firemen and everybody
else who comes up? They probably don't know what is in. They
have two fires going. Don't you have a radioactive mess, because
zirconium will melt at a particular temperature?

In fact, I think it melts below the melting point of a propane fire,
does it not?

370

Mr. RuscHE. I don't recall. You could perhaps create a situation
with propane in which you got a temperature high enough to melt
it.

Senator Adams. I not am not talking theoretical. I am talking
about carrying the stuff.

Mr. RuscHE. My first guess is that it would not, but I would have
to check that point.

Senator Adams. Would you please?

[The information follows:]

In the early 1980s, the U.S. Department of Transportation sponsored tests in
which a spent fuel cask was subjected to a propane torch fire environment. The
actual test environment simulated a rail accident scenario. However, this should
also be a bounding case for highway accidents.

In these torch fire tests, peak temperatures in the cavity of the cask, where the
spent fuel would be located, never increased more than 100°C during the fire. Since
the specifications for casks being developed by the Department of Energy limits
spent fuel cladding temperatures to less than 300°C for all normal transport scenar-
ios, peak cladding temperatures in a cask during a propane torch fire should never
exceed approximately 500°C. Given that the melting point of zircalloy is nearly
1850°C (and the melting point of uranium oxide is 2865°C), the cladding has a large
margin of safety against melting.

Mr. RuscHE. I will. But let me note, if I may, that the casks meet
tests which are designed for that very circumstance. That is, they
are tested to assure their stability and their reliability under condi-
tions you have described.

Senator Adams. I know. Your test on fire failed, did it not?

Mr. RuscHE. I do not know of one that failed. Perhaps you do.

Senator Adams. I do.

Mr. RuscHE. I know of many that have not, and I don't know of
any cask that has been certified by the NRC which has failed.

Senator Adams. But you do know that in your tests on casks,
that you had failure in fire in your testing.

Mr. RuscHE. I am sure there have been failures in tests, Senator,
but I don't believe there have been casks certified which have
failed to meet the criteria of the tests.

Senator Adams. Thank you, Mr. Chairman.

Mr. RuscHE. Could I

The Chairman. Yes, please.

Mr. RuscHE. Let me just pass on. I was going to make another —
but I think we will get off on another discussion.

The Chairman. No, I think it is important for people to know
what we are dealing with and what the real danger is.

Mr. RuscHE. I was going to point out that the cask develop-
ment— we have a cask development program as a part of the Nu-
clear Waste Policy Act's research effort. Its objective is to assure
that the kinds of conditions that we are describing here have been
met.

You alluded to the circumstances of the firemen from the local
community or jurisdiction might have

Senator Adams. Or on the highway.

Mr. RuscHE. Or on the highway. Today if such shipments, or
such circumstances were to arise, it is the responsibility of such
local jurisdictions, that I believe all of the shipment routes that the
Department has involved with such materials, or the commercial
sectors involved, such communities have been party to various

371

levels of training and in exposure to the conditions — that is, being
made aware of such conditions — and I would like to, if I may, refer
you to a recent study done by your former associate in the Depart-
ment of Transportation, on the Transportation of Hazardous Sub-
stances.

It was issued last summer, and that document dealing with all
materials, including radioactive materials, drew a very strong and
unequivocable conclusion, that even considering the circumstances
which you have described and the perhaps imperfections that may
exist in all of the transportation modes, I believe the Department
concluded that nulcear waste shipments were far more safe, pre-
sented far less risk to the public than any other kind of hazardous
waste shipments.

Senator Adams. Mr. Rusche, I would just state to you that that
conflicts directly with the testimony of the three people from the
three States involved who said, one, they had not signed consultive
and cooperative agreements with the Department; were having a
terrible time trying to do it; they didn't know about the liability
that was involved and they were very concerned, because as you
just pointed out in your testimony, this is being referred to State
and local levels for, one, evacuation; two, for cooperative routing;
three, for handling of emergencies as they occur; .and four, out of
the Haz-Mat Department, they have not reached agreement with
these States on hazardous material, and finally, we didn't know,
Mr. Chairman, that the ones from Tiawan were coming in until it
was revealed by investigation.

The Chairman. Wait a minute. You said it conflicts. What he
said is the material is less hazardous than other materials. You are
not saying that this conflicts with that.

Senator Adams. I am saying what it conflicts with is the testimo-
ny yesterday of the three representatives of the States, that they
had not been able to arrive at an agreement with the Department
in any way on consultation and cooperation, and transportation
was one of the key issues.

The Chairman. But you are not challenging what he said about
the relative hazard of nuclear waste?

Senator Adams. I know nothing about that particular comment,
Mr. Chairman.

The Chairman. Would you speak to that question, the relative
hazard and why it is

Senator Hatfield. Mr. Chairman, could I interrupt a moment to
follow up on that point? In our Appropriations Committee's con-
tinuing resolution last year, you may recall, Mr. Chairman, that
we provided $499 million for the program, but we put an earmark
on $79 million. That $79 million was withheld — it was appropri-
ated, but not to be expended until there was certification by the
Secretary that there had been proper consultations with the States
involved.

That was to give a bit of an incentive to have the Department
consult with those States. As the Senator from Washington has in-
dicated from yesterday's testimony, it does not appear that there
has been a satisfactory consultation process.

372

My question to you: Does the Department intend to apply, or to
certify that progress with the States has been made in order to
expend that $79 million out of your appropriated amount?

Mr. RuscHE. Senator, I expect that we will come to a point in the
year in which we believe that that certification can be made. I
can't tell you exactly when that is going to be. At the risk, again,
of perhaps seeming impertinent, and I hope you will not take it as
such, consultation and cooperation is a two-party activity. If the
test of the effectiveness of consultation and cooperation is to be,
and it certainly is the prerogative of Congress to establish as such,
that those — one of the two parties is pleased or satisfied, then that
is certainly a test that would be difficult for us to make.

Senator Hatfield. Then I would assume that you would not — if
the scenario followed through that you did not ask for that $79 mil-
lion, be needing that $79 million within your $500 million request
for Fiscal Year 1988. I assume that we will carry over the unex-
pended amount if you do not certify for its use. Then we would be
in a position to deduct that from your 1988 proposal request.

Mr. RuscHE. I would hope we would not face that consideration. I
think we will certainly be in a position to talk with you about the
$79 million.

Senator Hatfield. You will be seeing Senator Johnston, McClure
and me at some time in the future to go over this. I will not press
the matter now, but I do want to raise it in light of Senator Adams'
point that he made relating to this testimony yesterday and the
consultation process.

We are very serious about that consultation process, I am sure
you realize, not only on this Committee, but on the Appropriations
Committee, as well.

Mr. RuscHE. Senator, I was at least as serious as you are and I
hope we will have the opportunity, to some extent today, and in
subsequent hearings to try to give you at least our impression of
what we have done and what we intend to do and hope that you
will find it satisfactory in the context of our joint interests.

The Chairman. We will want to go into that fully, but I thought
it would be useful to talk about the nature of these wastes first.

Senator Hatfield. I thank you, Mr. Chairman. I wasn't sure ex-
actly— I came in a little late this morning — what our procedure
was. I didn't mean to intrude.

The Chairman. Well, we have a very loose procedure here.

Senator Hatfield. The questioning process.

The Chairman. I think it is useful for Senators to be able to
interject and get their questions answered.

Senator Hatfield If that is appropriate, then I will feel free to
do that.

Mr. RuscHE. Senator, I am reminded as I looked at one of my
notes, that I misspoke a moment ago when I was speaking to Sena-
tor Adams with respect to the DOT study of hazardous material. I
was wrong. That study is an OTA study, a study of the Congress;
the Office of Technology Assessment in Congress. I apologize for
misspeaking on that.

They may not have been your colleagues.

Senator Adams: Thank you. I am aware of the second study.

373

The Chairman. All right. You had just said that nuclear waste
in transportation is less hazardous than other kinds of wastes.

Mr. RuscHE. Yes, sir.

The Chairman. Would you expand?

Mr. RuscHE. My point in attempting to raise this subject in that
way is not so much to say that other waste is hazardous, but to try
to provide some perspective which is extremely difficult to do.
When the word "waste" is said, I find people become very excited,
and when nulcear waste is said, they become excited-excited. Any
opportunity we have to try to help people appreciate that nulcear
waste certainly deserves careful and specific attention we will take,
but it is not as unique as some would have us believe.

These properties that have I tried to describe, I think do provide
a basis for understanding and a basis for treating that waste with
confidence that may not be as easy to do in some other environ-
ments.

The Chairman. For example, when I was a lawyer, I used to rep-
resent an insurance company that insured LP gas companies and
we dealt with LP gas fires all the time. Wouldn't you rather live
close to a place where trucks went by with nuclear waste rather
than LP gas, and why?

Mr. RuscHE. I am always reluctant to try to cast a shadow on
another element, but in terms of relative risk I think that the nu-
clear waste risk is far less than that, primarily because of the ener-
getic content, that is, its explosive potential for such materials.

The Chairman. Again, it cannot explode. Can you have a Cher-
nobyl coming out of the transportation or the storage of nuclear
waste?

Mr. RuscHE. No, sir.

The Chairman. You cannot have a meltdown?

Mr. RuscHE. No, sir.

Senator McClure. Mr. Chairman, could I interject here? A true
story. I have recited it before, but maybe it deserves repetition. At
the chemical treatment plant at the Idaho National Engineering
Laboratory, they bring military wastes in from Rocky Flats. Those
are liquid wastes and they are brought in in liquid form for treat-
ment to put them in solid form, make them safer, less hazardous
than they were before.

A few years ago, one of the national networks had a film crew
out to film the arrival of one of these shipments of deadly radioac-
tive wastes from the military program at Rocky Flats as it wheeled
into the plant in Idaho. As they were there and the truck came
through the gate, all of the radiation alarms went off. Of course,
they were elated, because they were getting exactly what they
went there to get.

They were going to be able to show on the evening news how ter-
ribly dangerous this stuff was and how sloppy the Department of
Defense was in transportation, and how derelict the Department of
Energy in taking care.

So they surrounded that truck with all the Geiger counters. The
safety inspectors went over it from end to end, and they finally
found the source of the radiation when they entered the cab and
got into the suitcase of the truckdriver. It was an alarm clock with
a dial that had some radioactivity.

374

Now naturally, you did not see that on the evening news. That
was a great disappointment, I am certain, to the people who
thought they were going to expose a safety hazard. I mention that
only because the standards are very high and, indeed, if you could
detect an alarm clock in the driver's satchel, then you must know
that if there is any radiation leakage, it is going to be detected.

Now that isn't true, I would say, at every point during the trans-
portation, obviously, but it was subject to that kind of scrutiny at
the point of origination, and subject to that scrutiny at the en-
trance to the chemical plant.

Mr. RuscHE. Thank you, Senator. If I may follow the conclusion
that you just made, one of the things that we have been attempting
to do, and Senator Hatfield, it is in the vein of your earlier admoni-
tion, in the area of transportation, we have been making a very
vigorous effort to establish institutional relationships between not
only the Department and States, but between States and other ju-
risdictions with respect to transportation.

We have issued and do have under active participation a set of
activities that hopefully will lead to a National network, capable of
dealing with transportation issues that we have been talking about,
in a very succinct, capable and responsible manner. I think you
know that within the Department we have begun to expand our
procedures for departmental wastes, and they too are falling into
this same kind of more public attention, more public awareness; an
attempt to be as sure as we can that all of the jurisdictions through
which such wastes pass, we have had the opportunity of providing
both information and, where needed, training for such folks.

I think this is an example of some of the things that we are
doing, Senator.

Now, if the tests were — is everybody ready to ship fuel at 3,000
tons per year, which we will be ready to do about the year 2000 —
then the answer is no. There remains 14 or 15 years before that
time comes. We will have another generation to train before that
time. But what we are doing is putting in place the institutional
mechanisms for the limited shipments that occur today, most of
which are non-civilian, and try to be in a position so that you and
those others who are concerned will have confidence that when
that time comes, that we will be prepared.

The Chairman. Mr. Rusche, let me interrupt you there. I think
we have had a useful discussion this morning. Unless anybody else
would like to add a parting question on sort of a primer on the
nature of nuclear waste — I do not mean to give the impression that
I think there is no hazard from nuclear energy at all. I think there
are certain hazards, particularly that N-reactor up in Washington,
a production reactor and I think it does have real hazards and we
could discuss other hazards of nuclear energy.

The public feels in many instances as though they have been sold
a bill of goods about something that wasn't supposed to be danger-
ous, and turned out to be of some danger, at least, a TMI and cer-
tainly at Chernobyl, but the point I wanted to get across here is
nuclear waste is not that part of nuclear energy that really is a
real hazard properly and scientifically handled.

375

In effect, it is less of a scientific challenge to handle it safely
than other parts of the nuclear cycle, or than certainly other parts
of handling wastes.

Mr. RuscHE. May I just add a final comment? Not only is the
waste — or do we know enough about the waste to treat it safely,
but there is a very fundamental fact that I hope we can all keep in
mind, and it is that we have the waste. The waste today sits in fuel
pools of 100 reactors in 27, 28 or 29 States. It will sit in those pools
until we do something to provide a more secure environment for it.

That environment is secure for a time. The Nuclear Regulatory
Commission, in its waste-confidence proceeding in the latter part of
the 1970's, the early part of the 1980's, concluded that such fuel
could be stored for 20, 30 or 40 years, and the Commission believed
that that was appropriate. But the Commission concluded that in
order for reactors to operate, it was necessary to have confidence
that that circumstance would be improved upon; we would move to
permanent disposal.

I would hope that in these discussions, today, Thursday and yes-
terday, and in the days ahead, it will be very helpful if we all keep
before us that we do not have the null option. That is, we cannot
say, let it go away.

The question is, is what we are doing worth the money to
produce the improvement, safety and security for that material. If
what we are doing is not what is needed, then hopefully these dis-
cussions will make clear what is needed.

I would caution us all to not be lulled into the view that doing
nothing is a responsible course. That is my personal opinion. I be-
lieve it was the opinion of Congress when the Act was passed, that
it is time for this generation to do something that will provide
future generations both protection against what we had done and
not leave that responsibility to them.

Now if the Congress were to decide differently, then that is some-
thing that the Congress itself is in a position to decide. But in my
personal opinion, we would all be remiss to lose sight of the fact
that we have that fuel stored, we have the defense wastes stored,
and we have no way to render them inoccuous. We can't neutralize
them. If we forget them, we forget them at our own peril.

So the charge we have, I believe — I feel like I am at my confir-
mation hearing, you may remember, Senator McClure — the charge
that we all have is to make it very much better. I believe that is
what we are about.

Now, sir. I am sorry.

The Chairman. I am sorry Senator Sasser was not here during
the earlier part. I am sure that he will be totally reassured that
there is no problem in Tennessee.

Mr. RuscHE. I would be glad to meet with the Senator privately,
and perhaps I can try again.

The Chairman. Please proceed now with the regular part of the
summary of your statement. We would rather you not read it, be-
cause I think you do very well summarizing.

Senator Fowler. Mr. Chairman, may I interject at this point?

The Chairman. Yes, indeed.

Senator Fowler. Only because I came a little late, and I apolo-
gize, Mr. Director. So assuming that you had already given your

376

statement, I read it. I hope it is a little helpful. I was reassured by
your statement — your last statement, but just to pursue the ques-
tions of the Chairman, and others, since you did not address this in
your statement, there is a National security element to the way
and under what conditions that radioactive waste is stored, is there
not?

Mr. RuscHE. I am not sure

Senator Fowler. Did I make myself sufficiently obscure?

Mr. RuscHE. I would appreciate it if you would elaborate a little
bit?

Senator Fowler. There is a National security element, is there
not, to the way, under what conditions, under what circumstances,
under what procedures that radioactive waste is stored.

Mr. RuscHE. Let me attempt to interpret what you said and give
you my impression. If you are referring to the plutonium content
of the spent fuel, then the answer is yes. That is the National secu-
rity implication that I would understand.

Senator Fowler. If you captured this stuff, you could make a
bomb out of it, could you not?

Mr. RuscHE. If you had appropriate chemical reprocessing capa-
bility at hand.

Senator Fowler. Even if you did not make a bomb out of it, you
could contaminate somebody, some person, or some river or some
ground water with it, if you so desired; could you not?

Mr. RuscHE. That would be very difficult, but it would be possi-
ble.

Senator Fowler. But it is possible?

Mr. RuscHE. Yes, sir. It is possible.

Senator Fowler. So for something to have this element of some-
thing that could have this kind of National security implication is
less hazardous or more hazardous is, in many ways, a specious ar-
gument, is it not, for public policymakers?

Mr. Rusche. No, sir. I would not think it is specious. I think it is
informative for people to have an understanding about not only
this material, but other materials that present that same

Senator Fowler. No, of course, it is, but the fact is it is going to
remain radioactive for 10 million years, is it not?

Mr. Rusche. Not very likely, sir.

Senator Fowler. How many million years will it remain radioac-
tive?

Mr. Rusche. Within about 1,000 years, it will be about like ura-
nium ore.

And we have some of that in Georgia.

Senator Fowler. So the extension of that argument would be,
would it not, that if it remains radioactive for 1,000 years, that
would make it less dangerous than if it were to remain radioactive
for 1 million years.

Mr. Rusche. Yes, from a hazardous standpoint. Not from a Na-
tional security standpoint that you are talking about, if I am infer-
ring correctly what you had in mind.

Senator Fowler. I do not want to go too far on this, and I am not
expert, which will be readily discovered if I go too far.

Mr. Rusche. I would like an opportunity to discuss the issue.

377

Senator Fowler. But the point that I think would be very help-
ful to all of us, and by extension, the public in these hearings, is
that it is extremely important, the way we go about the storage
and the procedures that lead to the storage. Everything from the
point of spent fuel being discharged, to the transportation, to the
ultimate storage; that should not be treated in a casual way. You
would agree with that?

Mr. RuscHE. I would indeed, sir. I would think that my state-
ment, and perhaps a more extensive discussion, would give you full
confidence that there is not one element that is treated lightly. In
fact, I believe that I could convince you that the efforts that are
being undertaken or envisioned more than care for the consider-
ation or concern that you are talking about.

But that remains for me to do, I understand.

Senator Fowler. Let me just end by just observing, that the only
thing that disturbed me about your testimony, both spoken and
this, is that I did hear these arguments about ten years ago. And
that is, the implication that technologically we have come up with
something that cannot break.

You will never get the public's confidence if you make the argu-
ment that there has been, in my opinion, a foolproof way of storing
hazardous nuclear material. I do not want to get all the people in
nuclear energy in the audience too terribly excited so they all start
writing me letters. That was the underlying message that the
public got before Three Mile Island, before Chernobyl.

Somehow we had something that could not break and the nucle-
ar reactors were totally safe. The problem with that is, it is very
difficult to make something that technologically will not break. So
that if the Department of Energy, and you in the capacity of direc-
tor, are telling this Committee that, look, it is just a question of
where the site is going to be, we have a foolproof system of storage
that cannot be captured by terrorists, that cannot contaminate you
if those pellets go into the Snake River, that cannot be intercepted,
all I say as one who is going to try to develop the right kind of
policy, I don't believe anybody is going to believe you.

Mr. RuscHE. Senator, I apologize if anything I have said has
given you that impression, or anything we have written. In fact, I
believe at least twice during the earlier informational discussion,
which was not directly related to my testimony for the morning, I
believe I made the statement that we have learned long since that
there is no physical system that can be made perfect.

Everything we do is subject to failure. I believe before you ar-
rived we had entered a set of discussions which were aimed at
trying to provide some prospective without trying to provide — what
shall I call it — trying to address in absolute terms the elements of
hazard and safety.

There is no question that nothing we are doing, or planned to do
or envision, is asserted to have perfection attached to it.

If you had— I realize that we have not had a chance to have
much discussion on the subject, but we have published many, many
documents and studies all of which are aimed at making the very
point that you have made. We cannot be sure for a thousand years.

The Chairman. Let me say, Senator Fowler, one of the reasons
we took an hour this morning was to go into this in some detail. I

378

am sorry you could not have been here for this. We dealt with — I
think Mr. Rusche put it in good perspective; there is nothing that
is absolutely safe, but I think he did compare what the relative
danger of this is. I think he did it fairly, dispassionately, and not as
an apologist. Not like the old AEC used to do, when they said it is
so safe, so cheap — too cheap to meter. We have been sold that bill
of goods. I do not think he was trying to sell us a bill of goods.

Senator Fowler. Mr. Chairman, I apologize, if I have been re-
dundant, certainly to the Committee. I will yield. I look forward to
working with you.

The Chairman. Since we brought up this question of terrorists
and National security, suppose the Symbionese Liberation Army,
the Islamic Jihaad, or whatever, hijacked one of these trucks on
the road. What would they have to do — or hijacked two trucks;
what would they have to go to get from there to a bomb?

Mr. Rusche. A very extensive process which would require chem-
ical reprocessing and some steps which no amateur could do.

Senator McClure. Let me go into that for just a minute. You say
chemical reprocessing. I can go down to the store and buy me a
bunch of chemicals, go home into my basement and reprocess these
radioactive wastes?

Mr. Rusche. If you were processing this material. Senator, you
would only last a couple of days because the other features at-
tached to it would render your process ineffective. You would die.

Senator McClure. How many chemical reprocessing plants are
there in the world today capable of handling that?

Mr. Rusche. Not more than eight or ten of that sort.

Senator McClure. In what countries are they located?

Mr. Rusche. There are several in the United States. There are at
least one or two in Britain, a couple in France.

Senator McClure. The Soviet Union.

Mr. Rusche. Yes, the Soviet Union has a number.

The Chairman. They were about halfway along in Iraq before
the Israelies got them, weren't they?

Mr. Rusche. I am unaware of that, sir.

The Chairman. That was a reprocessing plant that the Israelies
bombed in Iraq, wasn't it?

Mr. Rusche. I think it was a reactor, but I could be wrong. I
think the point is, it is not a readily available process. It is very
difficult. It takes very unusual circumstances to do it.

The Chairman. How many millions of dollars and how much
time to build?

Mr. Rusche. Many millions and months, to years.

Senator McClure. When did we start to build Barnwell?

Mr. Rusche. Well, that circumstance, it may take decades upon
decades.

Senator McClure. And Barnwell was a relatively mature propos-
al before it was abandoned, was it not?

Mr. Rusche. It was, indeed.

Senator McClure. That was several years in the doing.

Mr. Rusche. It is now several decades in the doing and has not
been done. I think the important point is the material contained in
the fuel is only marginally useful for a nuclear device and would
require very sophisticated chemical treatment facilities.

379

Senator Fowler. Will my friend from Idaho yield? The impor-
tant thing is that the material is hazardous.

Mr. RuscHE. It is, indeed.

Senator Fowler. It is not so much the importance of whether or
not you make a bomb on the security area. It is the threat of using
it in any way if it were captured. I do not want to belabor the point
because it seems so obvious, but it cannot be swept under the table
by an esoteric discussion on how difficult it is to make a bomb.

If the material were captured by those that would blackmail,
there are hundreds of uses for fear and blackmail that would stop
far short of having to have a readily accessible reprocessing plant,
to come up with a bomb. Would you not agree?

Mr. RuscHE. Yes, Senator. I was responding to the question from
Senator McClure, could you make a bomb out of it? If we want to
have a discussion on terrorism, this material is hazardous as are
many materials. I do not diminish or in any way reduce the poten-
tial for nuclear material or nuclear waste to be used in those envi-
ronments.

It would carry perhaps an emotional potential that is even great-
er than some other materials. But I did not understand that to be
the context of our discussion. I apologize.

The Chairman. How would a terrorist use a truckful of nuclear
waste?

Mr. RuscHE. I think he would do as Senator Fowler was suggest-
ing; I have it, and you can't tell what I am going to do with it, and
just go from there.

Senator McClure. Mr. Chairman, let's pursue that just a
moment. I think Mr. Fowler very properly said that it would be a
terrible mistake for us to understate the hazardous nature of this
material. I would submit it is equally irresponsible to overstate the
danger of the material.

If indeed a terrorist could terrorize this country by hijacking a
load of material that is relatively useless to them, it would be be-
cause there is a climate of fear already cultivated in the country;
the seeds planted, the public prepared, the press all alerted, to im-
mediately say, now they have it and they are going to do some-
thing to us with it.

I say that only because I think if we are going to be able to deal
with this question rationally, it must not be either overstated nor
understated, as to what the risks are or what might happen. That
is the reason that I asked the question about, what does it take
with respect to a chemical treatment plant, to make a bomb out of
it.

The minute you say — make a bomb out of it — that immediately
gets implanted in the minds of the public and therefore sets the
stage for the use of it as a terrorist weapon, and I think that is
highly irresponsible to leave that kind of an impression.

There is simply no way a band of terrorists are going to make a
bomb out of the material. Simply no way.

If it were the Soviet Union hijacking our materials to go over
and make a bomb out of; yes, they could do it. I suppose if the
French came here to hijack a shipment, they would find it some-
what useful to them in their program. But we don't have a pro-

380

gram to utilize it in that way, and I submit to you and to the pubUc
that it is not subject to that kind of use.

You mentioned a moment ago that there are other wastes that
are more hazardous. You have been careful not to say that too
much, but let's take any number of toxic wastes in the hands of
terrorists, and say they are going to put it in the water supply in
New York. Much more reasonable threat to American security
than that of the use of these rods, unless we have a mental picture
that these are more dangerous than the physical, technological, sci-
entific facts support.

I think it is important for us in these hearings to keep that con-
stantly in mind, what the hazards are and what they are not so
that we will deal with the hazards as they exist. I do not like to be
redundant, but nobody was hurt at TMI.

There was the kind of experiment you would never have run, but
the system worked to protect the public against all but one thing,
fear. There was no one hurt there chemically.

The Chairman. I would say to my dear friend, because people
will differ about whether TMI was a hazard, but nuclear waste is
not the same hazard as TMI, whatever it was.

Senator McClure. It always brought up in this context — oh, my
gosh, this is terrible. Look what happened at TMI. Let's look at
what happened at TMI; no one was injured. There was no radioac-
tive release that caused any kind of a health hazard to anyone.

The Chairman. Well, we are not dealing with that part.

Senator Evans. Mr. Chairman, could we get to the round of ques-
tions?

Senator Adams. I think the point that has been made by Senator
Fowler, is that in 1977, this Nation made a decision that we would
take charge of our nuclear waste because as uranium is breaking
down into plutonium, in these waste rods, if they were allowed to
move around the world, that they would cause a problem with pro-
liferation and the potential of nations who may be hostile to our
security, using this material, and building plants.

So a decision was made by the Congress and by the President of
the United States, that we would control and take charge of this
waste because of the security problem that was involved, of having
a plutonium fission material available that could be used, or could
be stored in various nations.

That has been the problem; that is the reason for the whole civil-
ian waste program, is it not, Mr. Rusche, and the fact that we con-
trol and are going to store our wastes, rather than doing what the
French do in a certain amount of reprocessing it and sending it
various places throughout the world because we could really reuse
the plutonium and uranium if we wished to use a different system.

We have made a national policy security decision that we will
not let this civilian waste out into the world in any form; that we
are going to keep it in the control and title of the United States.
That is the whole purpose of this program, isn't it?

Mr. Rusche. It is indeed, that the United States is going to take
care of its own waste.

The Chairman. If I may interrupt, and I am letting us get too
far off the field, and I am afraid we are not going to get to what he
has to say. But we were the policymakers in this Comittee, and

381

really, national security has never been a big problem, or a big mo-
tivating force. That may have been a motivating force on reprocess-
ing, which we have decided not to do. Economics has been a big
force on reprocessing. But national security, in terms of people
stealing our nuclear waste has never been a real consideration
here.

Senator Hatfield. Mr. Chairman, may I have my statement in
the record at an appropriate place?

The Chairman. Yes.

Senator Hatfield. I will not be able to get to my questions today,
but may I submit questions for the record?

The Chairman. Yes. Certainly. Let me, if I may, we have a very
freewheeling session, and we haven't let Ben Rusche get to the
main part of his statement, about what he did and why he did it
and where we go from here.

So please, go for that part.

Mr. Rusche. Mr. Chairman, I have enjoyed it. I hope that some-
how we have removed more fuzz than we have created. I think ve
have, but I can see that

The Chairman. I think it has been helpful.

Mr. Rusche. I think there are some private discussions that I
would certainly welcome with some of the Members, and I would
hope that this would not be taken as a casual comment. I would
really appreciate the opportunity of meeting with some of you pri-
vately, and giving you at least some of the information I have. It
perhaps would be useful to both of us.

Mr. Chairman, I appreciate the opportunity of talking today a
little bit about the current circumstances that we all are giving at-
tention to.

Last week, we released a draft amendment to the Mission Plan
for the Civilian Radioactive Waste Management Program. The Sec-
retary testified before you to discuss the purpose of the information
contained in the amendment.

We have sent it to States and affected Indian Tribes, the NRC
and other Federal Agencies for comment, and made it available for
public inspection. During the 60-day comment period, we plan to
meet with affected States and Indian Tribes to answer any ques-
tions that they may have regarding the amendment that may
assist them in formulating their formal comments.

The purpose of the Mission Plan Amendment is to keep the Con-
gress, as well as others, informed on the progress in the program.
When the Mission Plan itself, a large document which you will
recall was issued in 1985, when it was issued, we said it is today's
best estimate of the scientific, engineering and institutional infor-
mation needed to make informed decisions as we proceed with de-
veloping the disposal system.

We explained that it was a planning document, and as such, we
would review it annually and revise it on an as-needed basis. The
purpose of amending the plan is to ensure that it reflects current
significant developments and plans.

The draft amendment released last week is the first such amend-
ment and presents our estimate of how and on what schedule we
believe we can best fulfill our responsibilities in carrying out the
waste disposal program.

77-lOA 0 - 87 - 13

382

After the 60-day comment period, we will revise the amendment
in response to the comments as appropriate and will submit it for-
mally to the Congress.

In my testimony, I have attempted to note the important matters
that are addressed in the amendment. Let me just highlight them.
We have addressed achievements in the first repository program
and they have been real. We have suggested a five-year extension
of the schedule for the first repository to accommodate a number of
factors I will discuss briefly in a moment.

We have reiterated our view that we think it prudent to contin-
ue on the second repository program as we have outlined, with in-
definite postponement of site-specific activities, while continuing
technical development activities.

We discuss briefly in the amendment the situation with respect
to monitored retrievable storage and reiterate our view that we
think it ought to be an integral part of the waste management
system, and we have considerable attention to actions taken and
progress made, and the need for more progress in consultation and
cooperation.

Let me note that although we had planned to begin exploratory
shaft construction at one or two of the three first repository candi-
date sites this year, Congress, in the appropriation for the Waste
Program for Fiscal Year 1987, specified that no funds are to be
used for drilling any exploratory shaft at any site in Fiscal Year
1987. However, Congress did allow for site-specific work, other than
exploratory shaft drilling to be conducted at reduced funding
levels. The current activities that are underway include the follow-
ing, at the candidate sites in Nevada, Texas and Washington.

At Nevada, we are proceeding with land access and making ar-
rangements so that we will be in a position to proceed with that
activity of shaft work when we have the site characterization plans
in place.

At Washington, site characterization plans are proceeding for hy-
drology tests that are essential before we finalize the exploratory
shaft design and are able to proceed to exploratory shaft drilling.

At the site in Texas, we are proceeding with plans for beginning
to obtain access to the land, and later this month about 10 DOE
contractor personnel and DOE staff will be moving from our Co-
lumbus office into the area, and we will be seeing additional folks
move as the year wears on.

There are many more discussions of these activities in the Plan
and I will not take the time for the moment to get to those. But
there are two major efforts that we have underway that I believe
merit attention here. First are the negotiations that we have for
formal Consultation and Cooperation agreements with the States
and Tribes, and the second is the development of site characteriza-
tion plans.

I understand you have heard from representatives of the States
yesterday. In my testimony, on pages 5 and 6 following, I have at-
tempted to provide some information related to that subject, and
presuming that some of you may have read this, I think I will only
note that all of us recognize that consultation and cooperation, as
identified in the Nuclear Waste Policy Act is, certainly a challeng-

383

ing and adventuresome approach suggested by the Congress to
work together.

I think it is made especially so by the nature of the activity that
we are about. You heard the Secretary last week talking about our
efforts. In brief, we have tried to make a good faith effort to work
with the States.

The gentlemen who were here yesterday I understand have some
different views on the subject, and I will be pleased to try to re-
spond to those in detail. But we continue day by day to try to carry
out the intent of the Act in working with the States.

We have made some progress, I believe. We have not reached an
agreement on consultation and cooperation in the formal sense, but
I wish we could perhaps turn our attention to the fact that consul-
tation and cooperation perhaps, spelled with little "c's 'rather than
big "C's", is a body of activity that must go on. I call it consultation
and cooperation, with a little "c', and we all must try to work to-
gether.

We have differences. I think there is genuine interest on the part
of some of the States to see us proceed at a slower rate than we are
proceeding, and perhaps not see the activity proceed at all. But I
would not put the words in the mouths of such folks.

I do get quite a few opportunities to be told, however, that sever-
al of the States would just as soon we were not there.

We have made some improvements, however, in how we are at-
tempt to work with the States. If these steps could perhaps bring
us closer together, I would hope that we would all continue to
move in a positive direction. We have opened all of our coordinat-
ing group meetings.

All of you recognize, I am sure, that we have three major
projects for a repository, and we have some 12 coordinating groups
altogether. Initially, we invited the States and Indian Tribes to par-
ticipate on institutional and socio-economic issues which appeared
to be the original thrust of their interest.

As time has unfolded, it has become evident that the interests of
the States and Indian Tribes were expansive and that everything
we did was of interest to them. And we have in the last couple of
months concluded that all of those coordinating group meetings
ought to be open to States for their participation.

We have expanded the quarterly meetings that we have with
States and Indian Tribes, and — excuse me. I said States only, but I
should have said States and affected Indian Tribes are participat-
ing in those coordinating meetings.

We have expanded the quarterly meetings we have, which are
primarily informational in nature, to include not only the States
and Tribes, but the public. The first such meeting involving the
public is scheduled next week in Spokane, and many of those folks
who were here yesterday and many of my staff will be involved in
that meeting.

We will continue to work — if you notice in Table 1 of my testimo-
ny, I have listed those coordinating group meetings and we are
going to continue to try to find a way to work together.

Let me note just very briefly, on site characterization plans, that
the activity in the program for the next five, to seven or eight
years is essentially exploratory, investigative activity aimed at

384

finding the answers to questions that we, the NRC, the States and
the public will find essential to have to reach a confident conclu-
sion that a site to be selected in the 1990's will indeed be an accept-
able site.

So the site characterization effort is both expensive, and exten-
sive. It is a major piece of work in terms of geologic exploration.
We are preparing extremely detailed plans to be reviewed by the
States and the Tribes, and by the NRC. Those documents are sever-
al thousand pages in length and they will be available — are being
made available on a chapter-by-chapter basis as they reach some
state of conclusion.

I would note that finding answers to the relevant questions are
the main thrust of characterization so that we, the Commission
and the public can find that confidence.

I would mention only briefly that the five-year extension for op-
eration of the first repository is primarily to provide time up front.
That is, to extend the time for characterization and to allow us to
have more time for interaction with the States and Tribes and try
to be responsible in that mode.

My testimony has several tables that indicate the schedule in the
Act, the schedule in the Mission Plan in the past, and the schedule
proposed in the draft amendment to the Mission Plan, and I will
not take time to address that in detail.

I do feel compelled, Mr. Chairman, to note one thing, especially
since I was involved in the hearing last week. At my confirmation
hearing before this Committee, and several of you at least were
present at that confirmation, I believe I was asked specifically
what would be my reaction if we were faced with the consideration
of meeting the schedule or carrying out the program of technical
quality.

My response then and my response today is, I would feel it abso-
lutely encumbent on me as a responsible manager, as a member of
the Government, and as a human being and a citizen to tell you
that a schedule just cannot be allowed to prevail over quality. The
actions that we have taken, in the main, are based on that
premise.

I believed it then and I believe it now. If that is wrong, I hope
that out of this series of discussions, the Congress will make clear
that my technical judgment, the technical judgment of others that
are involved, the States and the Tribes are to be given second place
in favor of schedule. That is not the manner in which the program
is being constructed nor carried out at the moment.

Let me just note briefly, and perhaps there is not much more
that can be said, but I will try if you have questions, with respect
to the second repository I reiterate the Secretary's view of last
week, and mine on several occasions with this Committee, that our
objective and the action of May 28th was to make an accommoda-
tion in schedule that we thought appropriate.

We remain fully committed to a second repository. We expect
that about the middle 1990's, it would be time to go back and look
at that, and that is precisely the proposal that we have in the draft
Mission Plan, and if Congressional direction is needed to correct
our impression and our judgment, I hope that these discussions will
lead to that provision.

385

I would note also, the draft Mission Plan amendment reiterates
our view with respect to Monitored Retrievable Storage, and I
think I need say no more than to come to my conclusion. Following
the President's approval of the Secretary's recommendation to
characterize sites in Nevada, Texas and Washington for the first
geologic repository and the Secretary's decision to recommend the
reintroduction of the second repository site by postponing indefi-
nitely site-specific work into the mid 1990's, we have reevaluated
the program and schedule to put in place the Nation's first high-
level radioactive waste disposal system.

Our conclusions and proposal are reported in the draft Mission
Plan amendment. We recognize that there are areas of Congres-
sional concern, particularly involving the first, second repositories
and the MRS Proposal. These matters we have attempted to ad-
dress in the Mission Plan. We believe we have honored our com-
mitment to provide through the draft Mission Plan amendment, a
basis for informed evaluation of the program and for the Congress
to provide direction needed for the conduct of the program.

We believe that the plan in the draft amendment, or that the
draft amendment presents, is the program that will allow us to ful-
fill best the objectives of the Act in light of our experience and best
judgment. But perhaps there are other views on the subject, and I
hope that these discussions today and to follow will remove the
questions that appear to have clouded our ability to proceed. I am
committed to proceeding with the program because of your commit-
ment to take care of the matter for America.

If that is wrong, I hope that we can get the matter back on the
track. I hope that we can proceed, Mr. Chairman.

The Chairman. Thank you, very much, Mr. Rusche.

Gentlemen, we are going to proceed to not try to put the clock on
Senators. In spite of what some see as evidence of the need to do
that, yesterday we had some excellent questioning that lasted a bit
too long. I think one Senator went for 23 minutes, but his questions
were excellent and therefore, we are still not going to bring up the
clock, but I would ask. Senators, to try to hold the first round to
ten minutes, and then we will come back with a second round, and
we want to have a little free-form here, where you can interject if
you need to, because I think we get more out of that.

I hope the Chairman does not go beyond 10 minutes.

Mr. Rusche. Mr. Chairman, how much time will I have?

The Chairman. You should be very brief, very concise, very
candid, as I know you will be.

Mr. Rusche. Thank you. Senator.

The Chairman. I have a number of questions, and be as brief as
you can. First of all, what do you estimate the cost of characteriza-
tion of each of these three sites?

Mr. Rusche. In general, the characterization is about $1 billion.
The specific numbers that we have at the moment are for Hanford
about $738, for Yucca, about $650 million and Deaf Smith, about
$806 million.

The Chairman. Almost $1 billion per site.

Mr. Rusche. Yes.

The Chairman. Now, in an article by Luther Carter in the issue
of Science and Technology, he discounted the Hanford site because

386

of "a complex hydrologic regime and the site's proximity to the Co-
lumbia River. These factors haven't convinced DOE to discard the
Hanford site."

Briefly, what is that?

[The article referred to follows:]

387

NUCLEAR
IMPERATIVES
AND PUBLIC TRUST:
Dealing mth
Radioactive Waste

Luther J. Carter

PROLOGUE: For nea-'.y 30 years ike federal governmeni has been slrug-
gUng 10 find a v.ay lo d:ipo%e of the highly radio^lhe wasles from com-
mercial nuclear reactor:. In 1982 a solution appeared lo be al hand:
Congress passed and the president signed the Nuclear Wasie Policy Act.

But as Luther Carer describes here, the national program prescribed
by the act is in deep legal and political trouble. By failing to avoid sites pre-
seniing land-use and er.vironn-.emal conflicts, the Department of Energy
(DOE) has time after time selected sites that the states find unacceptable,
Caner contends. Morec.er. the act. which reflected a fragile political con-
sensus to share the burden of nuclear waste disposal between the East and
the Hes(, (c now jeopardized by a welter of lawsuits. Given the current up-
roar. DOE will not com.e close to meeting the J99S deadline for opening the
first repositor): Carter v.;3rni; indeed, the very concept of underground dis-
posal of nuclear waste may be discredited.

Here Carter analyzes where the siting effort has gone astray and pro-
poses a way out of the cjrrenl impasse. He argues that seeljng a distribu-
tion of repository' sites o^er several regions is more likely to spread the
misery than promote the intended sense of equity. He recommends that
Congress redirect this effort to focus on a single site that is both technically
promising and relatively free of land-use and environmental conflicts. Car-
ter believes thai there is ruch a site al Yucca Mountain in Sevada. But if
Nevada is to agree to accept a repository'. DOE will hjive to change the way
it does business. Carter ::ys. First, because no site will be free of technical
uncerainties. there m.ur. be a greatly increased reliance on engineered bar-
riers to contain the nuclear waste. In addition, there must be an increased
role for indeperulent critics and. equally imponant. generous incentives to
reward the stale for housing the nation's radioactive wastes.

Luther J. Carter received a BA. in history from Duke University in
195 1. He worked as a nc-spaper repor.er before joining Science magazine,
where he covered energy oj-.d the environment from 1965 to 1980. His pmi-
ous book. The Florida Experience; Land and Waier Polic>' in a Growth
Slale, was published by Jokrj Hopkins Press in 1975.

This anide is adap'.ed from a h-yck by the same lilie lo be published
in 19S7 by Resources for the Future. ©1987 Resources for the Fulure,
Waihingion, D.C.

388

R.M3IOA.CTI\'E WASTE

n Januar>' 1987 it \>.t1I be four yean since President Reagan hailed
passage orihe Nuclear Waste Policy Act as the long-awaited answer to
the nation's radioactive waste problem. But the act is not pro\'iiig to be
the answer. As now pursued the effort to select a site for the first
geologic repositorj-, a maze of tunnels mined deep underp-ound to contain
the canisters of irradiated reactor fuel, appears to be headed into a political
cuJ-de-sac and will not come close to the act's goal of establishing the first
geologic repositor>' by 1998. Indeed, the very concept of geologic disposal
might even be discredited and lost as a practical political possibility.

V-Tiat is needed is a new strategy to deal with the repository siting
problem and, equally important, a broad-based coahtion to see that the
strategy is adopted and carried out But before coming to this strategy,
consider what is at stake and why the current repository siting effort appears
to be failing.

Nuclear power is subject to two indisputable imperatives. One is to
contain radioacuvily in reactor and nuclear fuel cycle operations. The other
is to safeguard and prevent the abuse of plutonium, an inevitable by-prcduct
of atomic fission that can be made into nuclear bombs. Geologic disposal of
spent fuel would help satisfy' these two imperatives.

The irradiated, or spent, fuel contains all of the plutonium and nearly all
of the fission products created in the fission process. In its unseparaied form
in the sp>ent fuel, plutonium cannot be used as an explosive. In addition,
because of the intense gamma radiation associated with the fission products,
theft or forcible seizure of spent fuel for the plutonium it contains is
exceedingly unlikely. Thus, to seal spent fuel in a repository in a properly
selected deep geologic formation approaches the ultimate solution to con-
t?Jiiing the residual radioactivity fi-om atomic fission and preventing abuse
of plutonium.

But because the unconsumed plutonium can be reused as fuel as -eU as
fashioned into nuclear explosives, recovering it firom the spent fuel has
always represented a dilemma. Reprocessing, the chemical process that
separates unconsumed plutonium from the fission products, is still oScially
sanctioned and encouraged in the United Slates. But because it has been
denied government subsidies, repro::essing has not been done commercially
since the early 1970s and will not be revived in the foreseeable futu.re. In a
number of European countries and Japan, bow-ever, the commitment to
reprocessing and recycling is strong.

But the economics of reprocessing and recycling are poor, and the
elaborate security measures necessary to reduce the risks of plutonium thefts
and seizures by terrorists or others can only mal.e the economics worse.' If
the Umted Stales, as the nation with stiD the largest number of nuclear
reactors in operation or under construction, were confidently mo\ing to a
demonstration of direct geologic isolation of spent fuel — an aJlemative that
is simpler, safer, more economic, and almost certainly less susceptible to
political trouble and controversy — the force of the .American example might
be influential indeed. The example might be especially persuasive if the spent
fuel could later be retrieved, lea\ing open the possibility of future reprocess-
ing and recycling if fuel cycle economics and world political cond:iions
sliould ever favor such a course. But unfortunately, the repository siting
erfon is failing. Unless the political resistance of potential host states to a
repository- is overcome, the siting efTon will remain sr>Tnied and may have to
b: abandoned.

Nuclear power is subject
to two indisputable
imperatives: to contain
radioactivity and to
prevent the abuse of
plutonium.

W-ISTER !«-!

389

Remarkably, the two
rounds of site selection
moved toward pclitical
failure by paths that were
very different.

On May 28, 1986, tic Depanmcnt of Encrg)- (DOE), after close consulia-
lion v.-ilh ihe WTiite Hous; and v.-ith the president's approval, an-
nounced that the lisl of candidate sites for the &rst repository had been
narrowed to three in the stales of Texais, Nevada, and Washington. Each site
would undergo "characterization" — a detailed study of the geohydrology of
the rock mass in which the repository would be builL This process would
include exploration and testing from deep shafts; at each site total costs could
run as high as S 1 billion. The disclosure of this decision, a key step toward the
selection of one of these western sites for the first repository in 1991, would
have caused controversy enough in the affected slates in any case. But it was
accompanied by another decision that deepened the states' anger and
resentment; DOE announced that the site screening for a second repository,
which had been going on in the upper Midwest and in the East, was being
suspended.

In passing the nuclear waste act in 1982, Congress required DOE to
prepare plans for two permanent waste repositories. The search for a site for
the second repository in the eastern half of the country was intended to
satisfy' a concern for rejiona! equir>' as much as to meet a need for increased
disposal capacity. According to the act, three sites for a second reposiloo' ^i
to be recommended to the president by mid-1989. But now, largely in
response to political pressures, this undenaldng, known as the Second
Round siting effon, has been essentially abandoned. As for the First Round
siting effort centered in the West, it is now in deep legal and political trouble,
not the least because shurdng down the Second Round search in the Midwest
and East upsets the balance Congress sought to wiite into the waste aa to sat-
isfy- the West.

Remarkably, the two rounds moved toward pob'tica! failure by paths
that were very different, except that in each case DOE was insensitive to
land-use and en\ironmental coniiicts that greatly alarm the pubhc, intensif>'
host-Slate resistance, and make site evaluations enotmouslv difficult.

The search for the repositors' sites in the existing Firs; Round inventory
began in the mid-1970s. By the time Congress passed the waste act in
1982, DOE had identifitd nine potential sites, seven in salt, and one each in
tuff and in basalt, two distinct rock types of volcanic origin.

An essential qiialir>- in a site is strong evidence of predictability. In
particular, this means evidence that the repository "block" — the rock mass
that would contain the rr.aze of repository tunnels extending over as much oi
2,0OD acres — is fairly homogeneous throughout, having few or no major
discontinuities (such as faults). Equally important, because groundwater flow
cotdd transport radionuclides to the surface, the groundwater regime in and
around Lhe site must be well understood in terms of where the water is
coming from, where it is going, and the speed at w-hich it is moMng. In
addition, the geochemical characteristics of groundwater and host rock must
be understood, for these charaneristics can have a definite, if not easily
determined; effect on radionuclide retention or raobihty.

VvTien the siting effort^ began, salt was seen as a particularly promising
geologic medium for nuclear waste isolation because it is easily mined and
dr>- (except for tiny inclusions of brine). Salt also tends to "creep," or flow,
under pressure; thus, the mined openings would eventaally seal themselves.

ISSUES IN SCIENCE A.ND TECHNOLOGY

390

R.-M3I0^CnVE WASTE

In Lhe search Tor suitable salt formations, the emphasis v.-2s aJmost entirely
on technical considerations; political feasibility was essentially ignored. But
all of the salt sites eventually selened presented major land-use or en\-iron-
mental conflicts, real or perceived. For instance, the salt dome at Richton,
Mississippi, deemed by DOE to be the best of the domes investigated, was
next to a to-ATi. The best of the salt sites in Utah was next to Canyonlands Na-
tional Park. The Texas salt formation of interest was beneath the Ogallala
aquifer, on which the farmers of the west Texas panhandle region depend for
irrigation water.

Politics was definitely a major consideration in looking for sites on the
Nevada Test Site and on the federally owned Hanford reser\-ation in
Washington stale. The prospect of siting a repository' on these large, remote,
deserJike reservations where the neighboring populations were accusto.med
to nuclear activities had seemed politically convenienL But whether the sites
found there would be technically suitable and free of conllicis was somewhat
a matter of chance. The basalt site at Hanford turned out to present major
technical difficulties and large conflicts, especially those arising fro.Ti a
complex geohydrologic regime and the site's proximity to the Columbia
River. By contrast, the luff site in Nevada at Yucca Mountain turned out to
have probably the greatest technical promise of any site. And although not
free of conflicts, the con/lias there are quite different than those at the o"iier
sites and potentially easier to resolve.

The tight siting schedule mandated by the nuclear waste an gave DOE
no choice but to confine its siting aai\ities, for bener or for worse, to tr.ese
nine sites, at least for the First Round. Thus, while the waste aa called for
"consultation and cooperation" between DOE and the potential host stages,
the candidate sites had essentially been selected before the aa uas passed.
Tee states v.ere consulted during the preparation of the siting guidelines, but
as finally issued in November 1984, the guidelines eliminated none of the
existing sites. The guidelines could s^r^'e only to help the department pick
and choose among sites that the host states regarded as unsuitable. The states
brought suit to have the guidelines invalidated.'

When EXDE issued its draft environmental assessments in late 198^,
evaluating and ranking all nine sites and tentatively designating three for
characterization — the Kanford site, the Nevada site, and the salt site in
Texas in Deaf Smith Countv- — ofncials and citizens in the host states
responded with an outpouring of critical, and often angry, comments. A
panicularly telling complaint carhe from Booth Gardner, the governor of
Washington. He testified before a congressional subcommittee that r.ate
analys'.s had found that the methodology DOE used to rank the sites -as
seriously flawed.'

la a subsequent review requested by EXDE, the National Academy of
Sciences Board on Radioactive Waste Management found the site-ran)_'ng
methodology, which by that time had been res-ised, to be appropriate. Tne
board cautioned, however, that DOE's sole reliance on in-house experts in
applying the methodology could introduce bias and mask uncerLainr\.'

Public opposition intensified in May 1986 when EXDE announced its
final selection of the same three sites. There had been speculation that the
basalt site at Hanford, especially because of the great difficulty of charaaeriz-
ing its hydrogeologic regime, might be eliminated in favor of either the
Mississippi or the Utah salt site. E>OE's fourth and fifth choices. But ih:
department stuck with the Hanford site, even though it placed last among th:

Projected accumulation of
nuclear waste, commercial
reactors (1986-2000)*

1988 1992 1996

•Assumes 115.3 ppa*an opcralin;;
apacilj b) 2000.

SsjTf Oak Rjdi;c S'alional Labo:alor>.
S:en! Fuclcnd Rcdiooclue Waif Inien-
/&'ifl. Pro;cciions, end OiC^cclenincs.
Die. 1985.

391

/■

'^■\m^M

five sites according to DOE'S ov.-n sile-renidng methodology.

AU five of the prindpa] candidate si-^s were ranJ:ed v.iih respea to iheir
advaiitiges and disadvaciages for bo'i the preclosure phase, when the
repository would be buiJt and operated, and the posiclosure phase, after the
repository was closed and ^eaJed. Both preclosujx and posiclosure, Hanford
came in last DOE defended its decision by arguing that prwlosure, Hanibrd
had actuaJJy ranked highest among the sites if the cost of repository construc-
tion and operation and of spent fuel tTansportalion were not laJ-.en into
account' DOE noted tiiat the siting guidelines "p.lace cost among the least
important calesory of considerations." Postclosure, DOE said, the expected
performance of the Hanford site in cou'iainiog radioactivity for more than
10,000 years couJd be expected to be SOD times bener than the Enwonmen-
tal Protection .\genc>' siandird. Finally, the department said that in favoring
the Hanford site over the Mississippi and Utah sites, it was giving substantia]
weight to the greater geologic diversirv' that a basalt site would pro^ide.

But these arguments were not con^ijcing. First, there were larje differ-
ences in costs for reposito.-v- consiructioa and operation. These costs were
nearly $< biihon more for the Hanford site than for the Mississippi site (in
1985 dollars), and they were S5.4 bilhcn more for Hanford than for the
Nevada site. The total estimated cost at Hanford was S12 billion, with the
cost uncertainty for this and the other sites put at 35 percent, either way
Second, to build a repositor>- there might prove impsssible at any price.
Seven 1 5-fool^ameter shafts would have to be drilled to a depth greater
than 3,000 feet in the ha.-d Harlord basalt, a feat that is beyond the
demonsu^ted slate of the an. Tcird, DOE's assertion that a Hanford
repository would far exceed the EP.^ performance standard is not supponed
by available data, which, according to the U.S. Geolodcal Sur%-ey, are
"insuftcient to conclude much of anvthing with regard to groundwater travel
time or direction."'

PoUlically, however, the alternatives to Hanford were distinctly unin\-it-
ing. For DOE to have dropped Hanford in favor of the Utah site next to
Canyonlands National Park would have meant a battle not merely with the
state of Utah but also with the Naiior^ Park Service and the national
environrrienial community. Tne Mississippi salt dome site would also have
presented political difticuliies. Mississippi is a D«ep South state that is
supersensitive to federal intenention. In rrsisting the exploration of a site for
a nuclear waste repositor>' next to a sm.aJ^ town, Mississippi officials would
have held suong political cards. In sum, by sticking with Hanford, DOE
chose badly, but there was no way for it to have chosen well.

Immediately after the sites were announced, Washinglon, Nevada, and
Texas filed lawsuits challenging the admirJstration's decisions and the way
they were reached. The htigation on First Round issues was accompanied by
suits disputing DOE's authorirv- to suspend the search for Second Round
sites. The legal attacks will de'iay the siting effort and might derail it. In Texas
DOE also faces the problem of obtair^ing the shaft-excavaiion permit
required by slate law to proiea aquifers. Eji the greatest obstacle to the First
Round siting effon could arise b Concress. Disturbed by DOE's decision to
suspend the Second Round siting effort. Congress reduced the fiscal year
1987 appropriation fi-om the Nuclear Wast: Fund by almost half of what was
requested. Part of the funds —.ay be restored in March, but only after a
congressional review. As an aide to a key senator explained, "This is a
message to DOE that we are discouraged, thai the program is in jeopardy and

392

R.M3IOACTIVE WASTE

that confidence must be restored.'"' There v,t11 in any case be at least a one-
year moratorium on exploration of the three First Round sites.

For the second repository, with site nominations not due under the waste
act untiJ 1989, DOE had time to undertake a new search and to give
potential host states a voice in the site screening from the start. Yet despite
DOE'S efforts to involve them, the host states were to find the results of the
site screening unacceptable.

DOE was looVdng for a second repository site in granite or other
co'sialline rocl^s. Crystalline rocks occur in all major regions of the United
Stales, but the starch was limited to a 17-state area that included the
Precambrian shield region of northern Minnesota, Wisconsin, and Michi-
gan, plus most of the states along the Atlantic seaboard from Maine to
Georgia. Through a sur%xy of the geologic hterature, EXDE initially identi£ed
some 235 rock formations. Then, using an elaborate methodology developed
with Slate representatives, the department screened out all but 1 2 rock bodies
as candidates for further field investigations.

The intent of the screening methodology was to apply DOE siting
guidelines in an exphcii, systematic, quantitative, and objective manner uial
was above suspirion of bias. Each rock body was mapped on 1-square-miie
grid cells. Each grid cell was reviewed against a shon list of disqualifiers such
as the presence of deep mines or encroachment on highly populated areas or
proteaed federal and state lands. It was then reviewed against some 16
regional variables such as proximity to exploitable mineral resources or
points of groundwater discharge.

Geologic data for the 1 7-siate region were limited, so at this stage land-
use and en-.ironmenul concerns were necessaiily given an important place
in the screening. .Moreover, DOE gave state representatives a role in the
development and weighting of screening variables intended to reflect public
concerns.

Nonetheless, the department's January 1 986 announcement of its leca-
live screening choices provoked a thunderous protest from the seven slates
where the 12 preferred rock bodies were located: Minnesota, Wisconsin,
Maine, New Hampshire, Virginia, Nonh Carolina, and Georgia. Nowhere
was the protest louder than in Maine. While the slates found all the choices
to be provocative, the choice of the Sebago Lake batholith, only six miles
nonh of Portland and not far west of the Lev,-iston-.\ubum meuopoliun
area, was seen to be provocative in the extreme. Not only was ihe site near
ihe two largest communities in Maine, but above the rock body were
numerous sizable lakes and immediately adjoining it was Sebago Lake itself,
the second largest lake in Maine and the source of Ponland's drinking water
When DOE officials went to Maine to brief the public on how the screening
had been done, some 3,000 worried, upset, and angr>- people showed up —
including the governor and both U.S. senators. The meeting lasted until 3;50
in the morning.

How could the Sebago Lake batholith have been chosen? The ansujr
seems to he in the nature of the weighting process; federal and state
technocrats had pondered the relative Lmponance of diffe.'ent sn-eening
variables and had come up wiih weighted sets which, as it turned ouL
allowed the site's positive features to offset the negative ones that the public

DOE'S January 1986
announcement of its
tentative screening choices
provoked a thunderous
protest from the seven
states where the preferred
sites were located.

WINTER 1987

393

laur found emotionally and politicaUy salient. For DOE the Stbago Lake
batholilh presented a number of advantages, including its lai^e %'jjt and the
presumed absence of e^nhqiiake or other tectonic phenomena that might
impair waste isolau'on. But what manered to the people in Portland was their
fear that their drinJdng v.ater might be poisoned with radioactisity. Across
the border in New Hampshire, the overriding concern of the people of
Hillsboro, a scattered nral town of about 3,030 residents sitting aiop another
potential site, was that their whole community aad way of Ufe was threat-
ened. A repositor>' project, if it came, would result in the government's
purchase of thousands of acres of their land.

Immediately foUosing the aiinouncemenl, citizens, governors, and
members of Congress from all three affected regions — the Midwest, New
England, and the Southeast— began pleading with DOE and White House
officials to stop the Second Round. Their protests came at a time when the
Reagan administration v.as already concerned about maintaining Republi-
can control of the U.S. Senate. Four Republican-held Senate seats were at
sta-ke in the 1986 elections in the Second Round slates of Wisconsin, New
Hampshire, Georgia, and Nonh Carolina In all of these stales the RepubU-
can incumbents or candidates could be hurt by the nuclear waste issue; after
all, it was their party thai was running things in Washington. Rep. James T.
BroyhiLl (R.-N.C), ninr-ng for the Senate, was particularly embarrassed by
the selection of two canddaie sites in his slate because be had been one of the
principal sponsors of the nuclear waste act.

V."hen DOE Secreta.-y John S. Herringlon suspended the Second Round
effon in May 1986, he jjstiSed it principally on the grounds that Broyhill
and others were arguing— that the decline in spent fuel generation meant that
the siting of the second repository could be deferred until the mid-1990s, or
even later "To go ahead and spend hundreds of milhons of dollars on site
identification now would be bath premature and unsound fiscal manage-
ment," the secretary said

Hemngton dismisstd suggestions that the Second Round was sus-
pended in response to political pressures, as did Ben Rusche, director of the
Ofnce of Ci\ilian Radioiclive Waste Management at EXDE.* But certainly
Rusche and Herringlon tnew that the First Round, their first pnority, was
going nowhere unless th: president approved ihe selection of sites recom-
mended to him for chaiar.erization. They also surely knew that he might not
approve them unless a v,-ay was found to quiet the political turbulence in the
Second Round stales. Inumal DOE policy option papers are quite explicit in
recocairing the "immediate p-obiical relief ' that would come fi"om terminat-
ing the Second Round seijxh.'

The projeaed declin; in spent fuel generation, while significant, had not
been so great as to make a second repository' clearly unnecessary. Indeed, on
April 23, 1986, little mere than a month before the Second Round was
suspended, Rusche told a congressional subcommittee thai it appeared that a
second repository would b: needed.

V.Tiile slopping the Se-cond Round was probably inevitable poh'lically,
this decision made the abeady bad problems of the First Round even worse.
Several key sponsors of the waste an and all the First Round host-state
senators from Texas, Nevada, and Washington immediately denounced the
suspension.'" They called i; a clear violation of the act"s exphcit requirements
for a Second Round siur.= process, a judgment with which the comptroller
general of the Umted States Later concurred in a formal ruling."

ISSUES IN SOENCE KSD TECKNOUXDY

394

R.'.DiO'^CnVE WASTE

Sen. Sladc Gorton (R.-Wash.) had been a prime mover behind eSbns in
19S1 and 19S2 lo have the waste act provide for a s««nd repositor>- and
limit the spent fuel accepted by the £rsl repository until the second is in
operauon. Now, in Icslifying before a Senate energy subcommittee, Gorton
emphasized that the various elements of the aa were "inseparable" and that
"the siting of a second repository is a key element that cannot be removed
without jeopardizing the entire acL"'^ He insisted that if 1X)E were goi^g to
disregard the requirement for the Second Round, then the First Round site
selection process should be reopened too. "Tne department should cond'jct a
nationwide search which culminates with the selection of a single site,"
Gorton said. Governor Gardner of Washington, appearing before the same
committee, w-amed: "If the federal govenunent won't play by the rules, we
will see you in court Tbe future of a repository wil] be tangled in the nation's
court system for years to come."

Seeking a distribution of
potential repository sites
over several regions is
more likely to spread the
misery than to promote
the intended sense of
equity and fairness.

A n important lesson from the First and Second Round siting experience
./"s^is that insuperable difficulties have been created by not excljding areas
where a repositon project would present major land-use and environme-lal
conflicts. Time after lime EXDE's choice of sites for study has created sjch
ccrJUcts, from the worries in Texas o\er the Ogallala aquifer to thos-e in
Maine over Lake Sebago. In some cases the conflicts have been indispuubly
real, as at HUlsboro, New Hampshire, where many citizens would face the
loss of their homes. In other cases the conflicts are arguably not real but are
merely strongly perceived. The faa that a repository would be close to a tou.Ti
or beneath an aquifer does not necessanly mean that it would be unsafe. 3ut
perceived risks pose real problems.

V.'here siting choices present major conflicts, close questions about
conlainment, or technical feasibiliu-, are also present (or certainly appear to
many people to be present). For instance, at Hanford, where the volu.me,
velocity, and direction of groundwater flow is a major technical issue, exp:rts
ar^ue endlessly over whether there is a threat of coniaminaiing the Colurr.bia
River A sure way to avoid such questions is never to propose a site anywhere
near any major river. At the Deaf Smith County site in Texas, DOE must
show that a repository beneath the Ogallala aquifer would not present the
unacceptable risk of having water njsh through or around the shaft to flood
the mined operJngs. It also must show that there is no credible way that the
aquifer could ever be contaminated. However confident EXDE may be that
fully satisfactory answers are in hand, these questions would never arise if the
policy were to stay away from sites beneath prolific aquifers.

Another lesson is that seeking a distribution of potential repository sites
over several regions is more likely to spread the misery than to promote the
intended sense of equity and fairness. The elaborate, drawn-out screering
prc-cess that the waste act prescnbes amounts to a cruelly demanding
political marathon. For instance, the several stages of the Second Round —
regional screening, nomination and seleaion of sites for chaxacierization,
then selection of one site for licensing — would each require voluminous
do-cumeniation, information briefings and public hearings in the host states,
and responses lo state comments and lawsuits. And as controversy height-
ened in the host states, the potential for trouble would be sure to increase
back in Washington, where DOE is dependent on the VvTiitc House for steady

V.TSTtR 19ST

395

Not to be forgotten is
public distrust of the
government's ability to
cope competently and
fairly with radioactive
wastes.

polilical support and on Congress for annual appropriations from the
Nuclear Waste Fund.

in sum, any attempt to screen for sites over very large areas, looking at
all rock formations that might conceivably be suitable, is almost sure to fail.
In the effort to weigh evenhsjidedly the pluses and minuses of the multitude
of sites, issues sure to be emotionally and politically salient become ob-
scured— but only to EXDE decisionmakers, not to the host-slate politicians.
Also, much of the Lnformalion most relevant to the merits of the sites is not
available on a regional scale. .Another cause of trouble, now becoming clear
in the First Round, is that even whca only a half-dozen or fewer candidate
sites remain, the task of comparing them is formidable and controversial. To
be sure, the First Round site evaluations, comparative rankings, and ulti-
mate choices could have been done better. But whether they could have been
done well enough to promote a technical consensus on the fairness and
soundness of the choices is quite anoiier question. One difficulty lies in the
paradoxical nature of the problem: sites deemed promising enough for
characterization must be chosen in the absence of the geohydrologic data that
only charaaerization can provide. The mistrust engendered by such an
exercise means that anempls at "co::sultation and cooperation" between
DOE and the host states are doom.ed to frustration.

Not to be forgotten here is pubUc distrust of the government's ability to
cope competently and fairly with radioactive wastes and other hazards of
nuclear technology. This distrust is understandable in light of the often
troubled history and flawed performance of the nuclear enterprise in this
counir,'. Nuclear power has gonen into deep political trouble because some
major problems such as disposal of n'jclear waste were not solved before it
was introduced on a corrunerrial scale. Distrust of EXDE comes, too, from the
still remembered record of waste ntismanagement, including leaks from
high-level waste tanks at the Haribrd ,-cserT.ation and a foolishly premature
plan of more than a decade ago by the Atomic Energy Commission to
establish the frrsl repository at a Kznsas salt mine site that presented major
technical uncertainties.

Furthermore, assurances of safety will not be widely believed so long as
DOE [>ersisls m the choice of sites as ridden by conflict and uncenainry as
the one at Hanford. Trust will be gained by building a record of stu"e,
competent, open performance that gets good marks from independent
technical peer reviewers and that shows a decent respect for the public's
sensibihties and common sense. This v^ill not be accomplished by an overly
ambitious effort to screen a.id investigate widely scattered sites. Nor will it be
accomplished without lening indcper.ient expens express their criticisms
prior to key decisions rather than arierward when the bureaucracy has
become entrenched in its positions.

A positive lesson from past reposiiors- siting efforts is that NTMB"!', or
"not in my backyard," dees not always apply V."nen local commuruties
perceive significant net benefits and no major conflicts, they are v.iUing to
look for something other than the dark side of repository siting. To establish
a local base of cooperation and suppon is not a sufficient condition for host-
slate support, bijt it is surely a necessa.-\ condition.

In some instances, as at Hanford, there can be willing hosts in the
absence of a defensible site. But there have been instances where the local
host community has been uilling and ihe site has been adequate for the
limited project proposed. One is ihe Waste Isolation Pilot Projea (WIPP)

ISSUES IN SCIENCE A.VD TECHNOLOGY

396

R.\D10ACnvZ W.\STE

near Carlsbad, New Mexico, a separate project now under way lo construct
an underground rcposilor>' for nuclear wastes from militarv' programs.
Another is the proposed Monitored Retrievable Storage (MRS) faciliiy site at
Oak Ridge, Tennessee. In the New Mexico case, local support clearly helped
to keep the project alive. The V»TPP facility, which is being built in a remote,
semiarid area of htlle or no value for farming or ranching, promises to bring
jobs to a community suffering from the decline of the potash indurjy." In
Tennessee, where the slate has promised a veto, the project may not survive,
but this caw is nonetheless instructive. Local leaders at Oak Ridge found tv.o
incentives for supporting the project." The first was the possibility of
economic benefits such as substantia] in-Iieu-of-tax f>a>Tnents, land for a new
industrial park, and commitments for the development of such project-
related acii\ities as centers for spent fuel transportation management and
research. The second was a chance to gain commitments necessary not only
to ensure a safe MRS operation but also to effect an earb'er and more
complete cleanup of ensTronmenlal problem* from past Atomic Energy
Commission and DOE operations.

The foregoing lessons from past nuclear waste facility sitinx in the
United States illuminate the possibihties for new- policy choices.

To undertake a new
national search for sites
now would try everyone's
patience and be a
thoroughly impractical
endeavor.

After nearly 30 years of fits and starts by EXDE and its predecessors in
grappUng with the nuclear waste problem, a way out of the present
impasse rriust be found with some urgency. Unless a confident show of
progress is made soon, the geologic disposal effort will take on the ippear-
ance, if indeed it has not done so already, of an interminable Irek to-ard an
ever-receding mirage.

To undertake a new, national search for sites now, as officials of some
First Round states have suggested, would try even'one's patience ai^d be a
thoroughly impractical endeavor. A far more promising approach is to focus
the search on a few areas and, indeed, to place the emphasis on one primary
candidate site. The search for the second repository should in iiO. be
postponed; the problem of siting the first one is quite enough for now. The
insistence by First Round stales on continuing the search for a second
repositor>' site reflects a strong concern for regional equity, but there are
better ways of addressing that concern than by hghting political fires over
much of the eastern half of the Umted States.

Lea\ing aside for the moment the pohtical and equity questions and
considering only the need to find a technically excellent site, several points
should be made. One is that the current U.S. sualegy of identifying several
prim.ary candidale sites and then exploring each of them in billioi-ijUar
characterization projects is something no other country plans to do — or
would feel that it could afford to do. The aim of the U.S. strategy is to lend re-
dundancy and an important element of technical robustness to the program
of geologic isolation. But while the thorough exploration of m\ilti;'.e sites
should in principle permit the selection of the best of those studied, doing
this confidently and con%incingly is highly problematic, as the First Round
experience has shown. Upon characterization, no siie will be found lo 'yt free
of technical uncertainties.

Conscious of this, Sweden is planning lilcrally to overwhelm the uncer-
tainly by placing the spent fuel elements in four-inch-lhick copper canisters

wnsTER 1981

397

For the United States,
given the geologic siting
program 's present
predicament, something
akin to the Swedish
approach seems very much
indicated.

that arc expected to kst hundreds of thousands of years." (By contrast, under
current regulatory requireraccts U.S. canisters might not last more than 300
years.) Sweden's plan; for site screening and characterization, on the other
hand, are sLmplicir\' itself compared v.-ilh those afoot in this country. For the
United Slates, given the geologic siting program's present predicament,
something aldn to the Swedish approach setms very much indicated. The
appropriate strategy would zpptu to be one that greatly increases the
emphasis on creating a muliibarrier system that can contain the wastes far
longer than would be possible for a repository that relies principally on
geologic barriers.

This systems concept was at the hein of the recommendations of
President Caner's Interagency Review Group on Radioactive Waste Man-
Zscment in 1979, and it contributes to the broad consensus among U.S. eanh
scientists and cnginetring gtologins that geologic isolation of nuclear waste
is feasible." Yet as the U.S. geologic disposal effort has proceeded, engi-
neered or artificiaJ barrien have assumed nothing Uke the significance they"
have in the Swedish program and have in faa been accorded distinctly
secondary imponancs.

When Congress revisits the Nuclear Waste Pohcy Act, as it surely will
have to do, the muliibarrier sysiens approach to geologic isolation should be
emphasized as a key to simplif>ing and improving the effectiveness of
repository siting. The poho should aim for early identification of a site that
is technically suitable and relatively free of comlicts, and it should avoid vain
and far-flung siie-scretuing anempis that commit E>OE (or possibly a new
waste agency, as has been suggested) to a punishing procedural marathon
that goes nowhere. Further, the policy should offer a way to overcome
distrust by emphasizing a new openness, including a voice for independent
experts before decisions are reached. Also, as I shall be emphasizing later,
stale and local ofncials and Citizens should be assured that hosting a
repository will offer significant benefits, thus giving them the incentive (and
pDliucal room) to examine what is proposed on its merits.

If such a policy is to be ins'Jgated, one way to begin would be for
Congress to commission an Lmpariial study, which the National Academy of
Sciences could be asked to conduct or orchestrate, addressing several key
questions." First, are there among the sites in DOE'S First Round inventon-
any that are both technically promising and relatively free from land-use and
ensironmental confhcts? Formal site rankings need not be contemplated.
Enough is now known about ihe various sites to permit knowledgeable
expens, simply by an exercise of careful judgment, to recommend one for
immediate charaaeriiation. In essence, the task would be to see if there is
not already at hand a site worthy of designation as the primary candidate for
a repositor>', especially given the potential to develop a robust overall
cor.uinment s\siem as a htiit against uncenainry.

Second, what specific strategies and technologies can best be followed or
applied in developing this robust containment system? In particular, what
types of waste canisters or casks can be used as pan of a slrateg)- to greatly re-
duce, if nouoverA'helm, uncertain T>? How might foreign and domestic uaste
packaging and other technologies b: used in a test and evaluation facility at
the site chosen for characterization?

Any hope of an early start on site characterization and development of a
test and evaluation facihly rests on identification of a primary candidate site
from the existing First Round inventory. Technically, the Yucca Mountain

ISSUES IN SOENCE A^X) TECHNOUXiV

398

R.A,D10^CTIVE WASTE

site in Nevada seems by far the most promising. The key question, ho'-ever,
is whether it v.il] be deemed promising enough to justify proceediBg immedi-
ately with characterization at this one site aJone. Yucca Mountain offen an
important advantage in that much of it is high above the v.-aier table in a
desert region of little rainfall. DOE and ilie U.S. Geologjcal Survey believe,
but must now confirm, that little or no water would infiltrate downward
from the surface to the repository. If no water comes in contact with the
waste canisters or casks, there would be no corrosion and do mechanism for
radionuclide transpon. Also, a repository there, about 1,000 feet beneath the
top of Yucca Mountain, would permit easier access from the surface than
would be possible at other sites. Access would be by two long, steep ramps
tunneled in from the side of the mountain instead of by vertical shafts.
Furthermore, alone among the sites in the First Round inventory, the
underground openings in the welded tuff are expeaed to be stable enough to
make backfilling with crushed rock unnecessary; this offers an enormous
advantage in terms of maintaining a capability for waste retrieval.

A principal technical disadvantage and licensing problem assor^aled
with the Yucca Mountain site is the di£ficulr>' of predicting groundwater
movement above the water table in the "unsaturated zone," a geoioeic
environment thai has been little studied by hydrologists. Another disad-
vantage is that the region is seismically active. Natural earthquakes csn be
exp)ecied, not to mention the eanhshaking from underground nuclear weap-
ons tests conducted at Pahute Mesa and Yucca Flats, each some 30 miles
from the Yucca Mountain site. But the nuclear waste repositors' would l-t at
a depth ideal for attenuation of the effects of earthquakes." The principal
concern would be to design all surface facilities for spent fuel handling to
resist groundshaking. The nearby E-MAD facility (Engine Maintenance
Assembly and Ehsassembly), built in the 1960s for testing nuclear rorkel
engines, has exF>erienced eanhshaking from scores of underground weapons
tests without damage.

As for land-use and environmental conflicts, a repositorv' at Yucca
Mountain would not threaten, nor be perceived as threatening, a tow-n, a
park, a farming region, or a major riven The one disturbing conflia that
surely exists can be eliminated if the adjoining Nellis Air Force Base is made
to Slop routing its praaice bombing runs over Yucca Mountain.

Nye County, which includes Yucca Mountain and the Nevada Test Site,
basically supports the repository' siting effon, seeing an opportunity for some
growth and jobs for people in small commumties Like Beatty and Armajosa
Valley. Nevada's professional engineers, labor unions in southern Nevada,
and many business people also support the siting effort.

But Governor Richard H. Brvan opposes the effort, warning that siting a
repositor>' at Yucca Mountain might label Nevada "the country's nuclear
wasteland" and ruin tourism. The Las Vegas and Clark County commiss-.on-
ers also oppose the Yucca Mountain project. But the kind of deep, visceral
public opposition that has been esident in places such as southern Missis-
sippi and west Texas appears to be lacking in Nevada. In a survey made by a
Las Vegas councilman, almost half of the 2,400 respondents "did not oppcse
establishing a high-level nuclear waste dump on Yucca Mountain."

The Slate legislature has dealt cautiously with the Yucca Niountain issue,

having chosen to adopt no resolutions either favoring or condemning the

. project. Some key members beheve that nuclear waste disposal could

represent an important and advantageous new use of the Nevada Test Site. If

A repository at Yucca
Mountain would not
threaten, nor be perceived
as threatening, a town, a
park, a farming region, or
a major river.

WINTER xtn

399

a nucltar test ban trcat^■ should ultimately come, southern Nevada could lose
the test site as one of ils economic mainstays. This facility is the state's largest
single employer, providing some 6,800 jobs.

A great many Nevadans are concerned about what ihey perceive as a
lack of fairness to the r,2te, not only with respect to the present national
nuclear waste policy but uiih respea to how their slate is treated generally
They fear that any time there is something that no other state will tolerate,
federal officials will want to put it in Nevada, whether it be nuclear weapons
testing, MX missiles, supersonic opverating areas, bombing ranges, low-level
waste or, as now, high-level waste.

The Las Vegas Reiie^ -Journal expressed these sentiments in an edito-
rial the day after E>OE announced that the search for sites in the East was be-
ing suspended and that Nevada was one of the three sites selected in the
West. It said the issue v.ts not safety, and that it really was not a problem of
frightening tourists either. "What is at issue is the lack of fairness to Nevada,
the disregard in Washinr.on for the wishes of the people and the tendency of
the technocrats and pobucal forces in Washington to exploit Nevada's
relative lack of national poliiical power." The same day the Gazaie-Journal
in Reno voiced the same complaint but took a different tack; "Nevadans
must begin to devise a suaiesy to exaCT some benefits in return [for hosting a

repositor>'] At long list," the editorial concluded, "Nevada desen'es a

break."

The Gazette- Journal v.-z% no doubt speaking for many, and it is just tliis
kind of sentiment to which Congjess should respond in the event that '/ucca
Mountain is deemed to be a suitable primary candidate site. In principle, the
government could impose a repository on Nevada and provide nothing
beyond compensation for aaual project impacts. All of the land is federally
owned, and part of it is al-eady dedicated to nuclear acii\ities. Also, Nevada
is relatively weak politically, its congressional delegation being among the
smallest. But for the nuclear industry as well as the state of Nevada, it would
be a much surer and better course for Congress to strike a deal that leaves the
Nevadans believing that they are finally getting a fair shake.

What would it lake to accomplish this? If there are experts available to
deal with this sort of thing, they are perhaps as likely to be found in Congress
as anywhere. .An effort should be made to reach an understanding with
Nevada's governor, its senators and representatives, and possibly its key
slate legislators. TTiis would consist of a quid pro quo, with Nevada to
acquiesce in the siting acuities ai Yucca Mountain in return for substantial
benefits, perhaps cash bor:uses and generous in-lieu-of-lax pa>Tnents, plus
assurances that ihe state would be allowed a strong voice in certain maners of
pubhc concern, such as the way in which spent fuel will be shipped mto
Nevada. Obtaining the fuids to back up such an understanding should not
be a problem. Many hundreds of millions would be saved by abandoning the
Deaf Smith and Hanford cbaracierization projects. Furthermore, even a 5
percent increase in the p.tsent fee of O.I cent per kilowatt hour that is
imposed on nuclear electr.c-!ty to support the Nuclear Waste Fund would
jield about S25 million a Near.

Some will call such dealings bribery, but the accusation is not easUy
sustained. Generally spealur.g. bnber>' is to induce a beirayal of trust by the
offer of money or other favors. In ihe current context, b.ibers' could take the
form of inducing slate and local leaders to accept shon-ierm gains for their
state at the expense of large, long-term riskj to be borne by generations yet

400

F.«X>10ACTI\'E WASTE

unbom. But the risks need not be large; at a properly chosen site, with a
robust overall system of containment, the risks can be very low, both for now
and for the many thousands of years that the waste remains dangerously
radioactive. However, the assurance' of safety must be credible — hence the
importance of a study, under independent, technically credible auspices, to
reexamine and reaffirm the potential that the mullibarrier systems approach
holds for geologic isolation and containment

If Congress, with the help of the Nevadans, can succeed in desigriating
Yucca Mountain as the primary candidate site, there will be yet one other
important task to aa:omplish. Congress should authorize the search for a few
additional sites to serve as backups in the event that the Nevada site should
ultimately prove unlicensable. This search could take advantage of a recent
study by the U.S. Geological Survey of the Basin and Range Pro\ince, which
includes most of the largely undeveloped and unoccupied desert lands of the
American Southwest." In this study, completed in 1985, six large areas — the
smallest of them larger than Massachusetts — were deemed promising for
waste isolation. Because the study considered only geohydrology, the next
step would be to reexamine, preferably with state help, the geologically
promising areas that are relatively free of land-use or en\ironmental con-
flicts. .After candidate backup sites have been identified, a voluntary siting
approach would seern to deserve a try. The affected slate and county
governments could be asked under what conditions and with what benefits
they would agree to siting investigations.

Elegant but impractical
national site-screening
strategies must be seen as
the prescription for
political paralysis that
they surely are.

For a new nuclear waste policy to be adopted and successfully imple-
mented, the interests with a stake in the outcome must find comnon
ground. They must all agjee that the problem is urgent. Although variously
motivated, they must also want early progress enough to agree on ih^e few
available practical strategies. Elegant but impractical national site-screening
strategies must be seen as the prescription for political paralysis that they
surely are.

But the struggle over nuclear waste policy has gone on so long thai the
mutual suspicions that divide the famUiar players — the nuclear indusirs', the
potential host slates, and the environmental and antinuclear groups — run
deep and are likely to pK:rsist. The consensus supposedly represented by the
Nuclear Waste Policy Act of 1982 was illusory, and the enNironmentalists
and antinuclear aaivists were never really a pan of it anyway

What is needed is a new, clearer, and broader consensus, with strong
participation by certain importantly affeaed interests that were not much
heard from in 1982. These new pla\ers would include individuals and groups
who worry about the risks of nuclear weapons proliferation and nuclear
terrorism (the Union of Concerned Scientists, the Federation of American
Scientists, and the Natural Resources Defense Council, to name a few). Th.ey
would also include the governors and members of Congress from slates w-.ih
growing accumulations of spent fuel and mihtary high-level waste; the utility
ratepayers who are footing the bill for the waste disposal effon, together w-th
the utihiy regulator)' commissioners who represent ihem; and cenain impor-
tant elements of the environmental community never previously direcJy
involved with radioactive waste or other nuclear issues, such as the National
Wildlife Federation and the National .^udut)on Scxrietv.

WINTER wsi

401

The most urgent
consideration is to
discourage the
economically premature
and politically foolhardy
use ofplutonium abroad.

These important interests wo-jJd brmg their ov.-d political weight to the
v.-2sle poIic>' deliberaliocs and sonelhing more besides. By the force of their
example, Ihcy couJd perhaps draw the nuclear industry and the eD\-ironmea-
tal and anlinuclear lobbyists into the circle of agreement over strategy.
Oiher^^ise, the indusuy aad anlinuclear lobbv-isls might well lock themselves
into positions that obstruct agreement. Any proposal to Snd a primary
candidate site in Nevada and offer generous benefits to the sute is one that
the anlinuclear lobbyists would be sorely tempted to denounce as a cynical
attempt to foUow the path of least poLilica] resistance and to bribe a
poUtically weak western sute io-.o becoming the nation's nuclear waste
dump. Similarly, utility lobbsisu night dismiss any proposed new emphasis
on artificial barriers as a ploy to locd the nuclear industry with excessive and
unnecessary costs.

Just as nearly all of the interes-.s mentioned above stand to gain if the
problem is solved, aJl stand to lose if it is not. Hundreds of millions of
dollars have akeady bten spent in the wrong places, and if billions more are
not spent in some of those same places, it will onJy be because DOE is
deterred by ihe courts or by ihe shattering of the fragile congressional
consensus represented by the Nucltar Waste Policy Act.

But the most serious consequence of not finally piitting the repository
siting effon on a more predicuble and promising path will be the failure lo
come to grips with the nuclear imperatives of containment and safeguards.
The dangerous residurs of the fission process, aH highly toxic and some
having the potential to be made into nuclear explosives, are 'oest contained
ar.d kept secure \i left In the spent fiie! and isolated in deep geologic
formations. Of all nations ihc Uni-^d Suies has the best chance to perfect
and demonstrate by ihe end of this century a technically and politically
robust system for meeting these imperatives— and meeting ihem with a
waste retrieval option B:ely to be especially important to those countries that
see reprocessing and breeders as ul-imatel'y critical to their energy security.
The most urgent cc?,siueraiion is to discourage the economically prema-
ture and politically foolhardy use ofplutonium ftiel abroad. For plulonium
fuel to enter routine use and comm.errial traffic in a worid in which political
instability and terrorist aaivity are rife presents risks that are quite beyond
our powers lo assess. To go along complacently in the face of such develop-
ments recalls the Joseph Conrad story Typhoon and the stohd Captain
MacNVhirr, who lacked the wit to imagine the force and ferocity of cyclonic
winds. Despite a falling barometer and other ominous ponenls of a r\-phoon
that would all but sirJc his ship. MacWhirr kept steady to his course,
occasionally muttering. "Tnere's some dirty weather knocking abouL" There
ma> or may not be t>phoor.; ahead, and Lhe risks should not be overstated.
But neither should the> be shghted or forgotten. B

NOTES: \ ^'~

1 . In a rrpomssued in Junt 1 986. m inlcms-JociJ usk force on nuclear terrorism u-zmcd thai
Oi: nsk \nM incrtast as s^tnl fuel is rtprtJcrssed and sepanicd pluiorjurr. cnicrs commcr-
c-.al u^fSc, The usV. fore: rKommtnded spent fuel storage and disposal "un'.il such time as
the need for plulonium ft.:! is cliail) esubbshcd, the threat of terrorism has lessened, and
lheadec;uac>ofsafesuaTisand pSisiczJ-p-oieoion sysicms has improved." The tisk force
members included Sun£::d Turner, fonr^rr dueclor of the Central IntelliEence Afenej, md

ISSV;ES IN' SCTENCc AND TECHNOLOGY

402

R.\D10\CnVE WASTE

sivcraJ 6gum promincnl in the nuclear cnirrprisc, including Harold Agnr*; former
dirtcior of Los AJamos NalionaJ Lalwraiory, Ejid Bcnrain Wolfe, gcuzva} mirxa^er of
General Eleclnc's nuclear fuel dJWsion. Report ofihe Imcrnniionnt Task Force or, Pre^en-
iicn ofKuckar Terronsm O^'a^hinglon, D.C.: K'L'clcaj Control Insiilulc, Jijie 25. 1986).
2- Al the lime of ihis v.Tiiing in lalc 19S6 the guidelines liugation is pending,

3. Booth Gardner, icsiimony before the House Energy and Commrnx Comrr-Jn^'s Sub-
comminee on EnerE>* and Power, Aug. 1. 1985.

4. Board on Radioactive Wasie Management, Icucr to Ben C Rusche (director. EXHEOSc: of
Ci^*ilian Radioacuve Waste Management). Oct 10, 1985.

5. U.S. Dcpamncnl of Energy; "Recommendation by the Secretary of Encriy of Cindicialc
Sites for Sue Charaaerizauon for the First Radioactive Waste Repository" (EXDE/5-0O48)
May 19S6.

6. U.S. GcologicaJ Survey, memorandum on the draft en^ironmcntaJ assessments, March 6,
19S5. COE's claims as to the adequacy of the Hanford silc rest on standard sensitivity
anal\-ses using a v-ide range of assumptions regarding the critical variables of velocity and
volume of groundv.'aler flow.

7. MariK-n Meigs, aide to Sen. James A_ McCurc. chairman of the Enerty and Narural
R.e^ources Committee and a senior member of the Commiaee on Appropriations, in'^rv-iew
uith the author. Oa. 15, 1986.

8. Ben Ruschc. interview v.iih Lhe author, July 3. 1986.

9. DOE Crs-slalline Rock Program 05c= (Chicago). "Cr>-sianine Options." M^y 13.1936.

10. Lener to Secixtary of Encr^)' John S. Hcrringion from the chairman of ihj« of the
responsible Senate and House commitiees; Sen. James A. McOurc. Enc7t> and Natural
Resources; Sen. Alan K_ Simpson, Env-ironment and Publjc Works; Rep. Morris K. Udall,
Interior and Insular AfTairs. and other members, June \ 1, 1986.

1 1. Comptroller General of the United Sutes. opi.iion issued in response to a rcqueTi for a
revicA of the suspension bv Sen. LJovd Bentscn, Sen AJan K_ Simpson, and P.ep. Edv,ard J.
Ma/key. SepL 12. 1986.

1 2. Sen. Sladc Gonon, lestimon> before the Subccmrr.inee on Energy Research and D:vcIop-
ment of the Senate Energ>* and .N'aiural Rewurces Committee, June 16, ]9i6.

13. Btcs'jse ofuhc general decline of potash mining in 'Jie region, locsd leaders dc not Trp-6 lhe
presence of potash at the site as a sigjiifirant confiici.

14. See Elizabeth Ptellc, "Innovative Process and Inventive Solutions: A Case Study ofLocal
Public Acceptar.cc of a Propose Nuclear Waste Packaang Facilir>" (paper prepared for the
National Forum on Manaang Land Use, Rene Dubos Center for Human En-^-u^imcnt,
New York, Apr, 3-4. 19S5)'

15. Sv-edish Nuclear Fuel Supply Co.. Vn^isionKSB. Firjzl SlO'CgeofSpem .S'uj:!ear Fue!-KBS-
3, \'o! HI Barriers (Stockholm: May 1983) p. 10. 15. table 10- .V A Natior^ Acadrmy of
Sciences (N AS) panel has concluded thai the claims made for the durability* of the proposed
canisicr arc warranted by the Swedish e%->dcnce. Frani: Prrss. president of NaS. l:"er to
BiPfcitia Dahl. Ener^- Minisl.'-); Minisuy of Indusir>', Stockholm, Mar. 1, 19S4.

16. Tne congressional OSce of Technology' Assessment has also suggested using a fully
redundant v.-astc package v.ith a design bfe cxceedir.g regul3lor>- requircm:nis See Or.ce of
Technotog> Assessment Managing the S::: ion's Ccmmeraal High-Lr^el H'cj.v (V.asiung-
ton, DC: U.S. Congress. 19S5).

17. Currenily. DOE intends for NAS to csiabUsh panels to oversee various ispecls of the
planned site characieriza lions m Nevada, Texas, and Washington. (Ben C RL^he. I:r.er to
Frank Press. July 25. 1986.) But the academy can give bcncr advice if free fro.-n the
constraints of a program that is demonstrably unworkable.

18. Data have been compiled and analN-zed on how SO diffcrenl underground faciLties were
anected by some 70 major earthquakes in North and SouLh America, Japan. Ir,d:a, a.-.i the
Mediterranean. E>amage \>.-a5 sbght at depths do'ATi to 900 meters, and v. -as least bcr*cerj ^CX)
10 9C0 meters (a Yucca Mountain repositop. could be ai a depth of between 3C«0and i^iO me-
ters). See H. R. Praiu "Earthquake E>ama£e to Underp-o-jnd Faahues 3s.i Earthquake
Related Displacement Fields," Proceedings of lhe H'ori-jhop on Setsrnic Ferforma'-j:e of
Urjicrground Facthiiez (Aiken. S.C.: Savannah River Laboratory, 19S1). 74 and 370,

19. M S. Bedingr:. K. A. SarrenL and J. E. Reed. Geologic arjd Hydrologic Crjirzaenuiiion
end E^aluanon of lhe Bojin and Range Province Relcine lo the Disposal of High Lnel
Rcdioacuve H cj/f. U.S. Geological Survey CucLlar 904-4 (V,'ashingion. DC: L'SGS.
19S4)

V.1STTR 19&7

403

R.-CHAjp. H. BRYAN STATE OF NEVADA

/j"„— ^. "" — ••■— " BOOKRr R LOUX

AGENCY FOR NUCLEAR PROJECTS
NUCLEAR WASTE PROJECT OFFICE

Ckpttol Complex

Cai.on City, New. d. 89710

(702)SS5-3744

December 29, 1986

Hr. Leslie- Robocts, Senior Editor

Issues in Science and Technology

National Academy of sciences

2101 Constitution Avenue ,

Washington, D.C. 20413

Dear Hr. Roberts:

Governor Bryan asked me to respond to your invitation to
conment on Luther Carter's article, Nuclear Imperatives and
Public Trust; Dealing with Radioactive Waste, published in the
winter edition of issues in Science and Technology, the science
policy journal of the National Academy of sciences. Kr. Carter
argues that the national program for a high-level nuclear waste
repository is in deep legal and political trouble, and rcay have
to be abandoned. He proposes that Yucca Mountain in southern
Nevada be investigated as the primary repository site as a way of
solving the problem.

1 agree with a number of Mr. Carter's findings and early
conclusions, but vehemently disagree with Mr. Carter's leap of
logic reflected in his final conclusion. For instance, I agree
that, "politics was de'finitely a major consideration in looking
for sites on the Nevada Test Site and on the federally-owned
Hanford reservation in Washington state," and that, "while the
(Nuclear] Waste [Policy] Act called for ^consultation and
cooperation' between the DOE and potential host states, the
candidate sites had essentially been selected before the Act was
passed." '

Hr. Carter's conclusion, however, betrays a disturbing
ignorance of the serious technical concerns that have surfaced at
Yucca Mountain--as well as at the other two prime sites
identified by the U.S. Department of Energy (DOS). In addition,
Mr, Carter's proposed "solution" to the quagmire created by DOE's
ineptitude in implementation the Nuclear Waste Policy Act (CTPA)
is simplistic and naive and flies in the face of Congress' intent
that nuclear waste repositories be sited on the basis of sound

404

technical and scientific investigations, not political
expediency. :

Mr. Carter's treatment of the subject lacks internal
consistency in that he spends considerable tir.s (over half the
article) systematically describing how DOE has eo raisr.anaged the
high-level nuclear waste disposal progran' as to bring the entire
effort to the point of collapse. He then proceeds to turn the
smoking gun on himself — and the rest of us — by suggesting that
the way to s^alyage the program is to, essentially, ratify and
endorse DOE's bungling , by arbitrarily focusing attention on one
of the three sites selected, perhaps illegally, under DOE's
admittedly flawed and technically inadequate siting process.

At best/ Hr. Carter's proposed *fix' is reflective of a
seriously incomplete understanding of the problems confronting
the nation's Efforts to find a permanent solution to the nuclear
waste dilemma. At worst, it can be seen as indicative of a
disturbing disregard for the principles of scientific objectivity

parochial political expediency. Hr . Carter's logic is akin to
asking Congress to legalize arms sales to terrorists simply
because it is easier to do that than it is to stop terrorism in
the first place.

Hr. Carter's proposed solution for putting the nation's
nuclear waste program back on track does great disservice not
only to Congress — which struggled long and hard to fashion an
equitable and technically justifiable framework for waste
disposal — but also to the citizens of this country, regardless of
where they reside. His contempt for the type of citizen
involvement and democratic decision-making which Congress so
carefully institutionalized in the Nuclear Waste Policy Act is
evident throughout the article. ■ ■

In conclusion, it must be emphasized that the problems new
plaguing the nuclear waste program are net, as Hr. Carter would
have us believe the result of failed national policy and approach
as set forth in the NWPA of 1932. The problems are, rather, the
direct result of the U.S. Department of Energy's blatant and
illegal disregard for the provisions of that law. The answer to
the current state of affairs does not lie with the endorsement of
doe's mismanagement by arbitrarily identifying Yucca Hountain as
a political scapegoat, but in a return to a truly national site
screening progra-m aimed at finding the best possible repository
location.

If there is one fact that has been demonstrated clearly, it
is that the Department of Energy is incapable of effectively
managing the nation's nuclear waste progra.m. Hr. Carter could
have done the country a valuable service had he attempted to

405

fccus- attention on the cause of the problem rather than seeking
to r-ake all of us accomplices in a failed endeavor.

Sincerely,

Robert R. Loux
Executive Director

RBi/gjb

cc: Governor Richard Bryan

406

Mr. RuscHE. Mr. Chairman, these factors and many others were
examined in our look through the environment assessments. They
are, by themselves, that is, their existence is certainly no cause to
suspect that a site is unqualified or disqualified. We found that our
best knowledge of such parameters leads us to believe it is a worth-
while investment, to go through site characterization, to investi-
gate them specifically. And that is why we chose Hanford.

The Chairman. These are negative factors, are they not?

Mr. RuscHE. Not necessarily. A complex geo-hydrologic regime, if
understood and if behaving as we think it will, might well be a
positive factor. It might well be a barrier to movement of such ma-
terials in the limit to the environment. The fact that it is near the
Columbia River is certainly a factor that has to be taken into ac-
count, but under the EPA guidelines, whether the Columbia River
is there or not, we are obligated to meet objectives that have been
established by both that body and the NRC. Certainly, protecting
the river is one of those objectives.

The Chairman. According to the article, the total estimated cost
for the Hanford site was $12 billion in 1985 dollars, $4 billion more
than at the Richton site in Mississippi, and $5.4 billion more than
in Nevada.

Are these estimates correct?

Mr. RuscHE. I think they are about correct.

The Chairman. What is the degree of uncertainty in estimates,
plus or minus? I think one article used 35 percent plus or minus.

Mr. RuscHE. Mr. Chairman, the 35 percent number that you
have seen is purely a traditional engineering uncertainty attached
to estimates made in this context. Please let me convey we do the
best we can with estimates. We do not even have a design for the
sites based on in situ information. So the fact or the likelihood that
we will find information that will alter the cost of these sites, ma-
terially, is quite high. We will have to do the best we can, and
these are the best that we can do, but I would certainly urge us all
to keep in mind that the purpose of characterization is to uncover
information that will allow us to improve those estimates.

The Chairman. According to this same article, drilling at Han-
ford will require 15-diameter shafts, 3,000-feet deep, "a fete beyond
the demonstrated state of the art."

Is that true?

Mr. RuscHE. I am not sure whether the quote is true or not, but
given the information you have just given me, that is not a true
statement. We expect to have a 6-foot shaft and a 12-foot shaft at
the Hanford, and we expect the technology that is required, or the
technology that is required to drill such shaft is not only demon-
strable, but we have the drill rig in place and the tooling in place
to do it.

The Chairman. Opposition to the bedded salt site in Texas seems
based on the fact to the repository would pass through the Ogallala
aquifer. Why isn't this a disqualifying factor for the Texas site?

Mr. RuscHE. Our objective, of course, is to find a way to get to
the horizon of interest, and not affect adversely such an aquifer.
There are not very many places in the country, even in Senator
McClure's Idaho, that are not over an aquifer, even though the sur-
face may be desert-like. So the fact that an aquifer is there only

407

requires that we give it very special attention, to be sure that it is
not adversely affected.

The fact that we penetrate the aquifer, is true in petroleum drill-
ing, in mining, time and time again, and there is great experience
with respect to sealing such aquifers. The site characterization pro-
gram and the drilling of exploratory shafts has as one of its major
objectives, providing convincing evidence that we can indeed pene-
trate and seal without adversely affecting that aquifer.

The Chairman. Witnesses from Nevada have stressed that Yucca
Mountain is near the Nevada Test Site and very little is know
about the affect of nuclear weapons testing on the tuff formation
under the mountain that would be host for the repository What do
you say about that?

Mr. RuscHE. It certainly is a factor. We have been testing weap-
ons in that environment for decades. We do have quite a bit of in-
formation about the disbursion of energy from such a test. In fact I
have provided Senator Hecht and others, and the public, copies of
data that provided the basis in the environmental assessment that
lead us to conclude that it would not be an unnacceptable situa-
tion.

Nevertheless, we would not discount it and we are going to give
special attention, partly at Senator Hecht's request and his insist-
ence, to both seizmic and tectonic affects which will include the
impact, or the interaction between that site and the testing on the
site.

The Chairman. Would you tell us why it is necessary to charac-
terize three sites simultaneously, and I say that with the back-
ground of the fact that when we passed this Bill, the figure we
were given was that characterization would cost about $60 million
per site. Now that is going up to about $1 billion per site, and I
know it would be nice to do the three simultaneously, if the dollars
are less, but would it be totally imprudent to try to pick our best
site based upon what we know about it, and go ahead with charac-
terization of that site and hold the other two? Can you speak to

Mr. RuscHE. Senator, based on the discussions we have had over
the last week or two, I think it would be imprudent for me to make
such a suggestion, and that the Act requires us to characterize
three.

The Chairman. I know the Act requires it. I am talking about
amending the Act now. We want you to follow the Act, including
the second repository.

Mr. RuscHE. I have been made sensitive to the interests of all of
us.

The Chairman. It may be premature to make a judgment on
that. If it is, just tell us what you think.

Mr. RuscHE. I think it would be premature to make a judgment.
1 think we have not had enough experience in subsurface investiga-
tion at this scale to allow us to make a judgment that would be of
high confidence on a single site. Now, if the Congress were to be of
a mind to relax its schedule, that is, to accept the thought that if
the first site is not acceptable after ten years, then we take the
second site, and take ten more years, thereby extending perhaps 20

408

or 30 years into the future the operation of the repository, that
would be a way to approach the subject.

I interpret the law that was passed by the Congress to carry with
it an inference that it was important to proceed, and one of the
values in proceeding with three sites simultaneously, is to increase
by a considerable factor the likelihood that one of the sites will be

found acceptable. • • - 1

It is in that context that I would still favor characterizing three

sites instead of one. .

The Chairman. Mr. Rusche, I have a number of questions which
I will submit in writing. I must go to the Senate Floor at this point.
Let me ask Senator Fowler, if he can be here, if he will preside at
this point?

Senator Fowler. I will be delighted.

The Chairman. Thank you, very much, Mr. Rusche.

Mr. Rusche. Thank you, sir.

Senator Evans. Mr. Chairman, can we find out what is going on
the Floor. We have a live quorum, and I think it is on the Appli-
ance bill.

The Chairman. Yes, the appliance bill.

Senator McClure. Mr. Chairman.

Senator Fowler [presiding]. Senator McClure.

Senator McClure. Mr. Rusche, there were a number of sugges-
tions made by witnesses, both yesterday, and others who are ob-
serving this program that you haven't really attempted to nor
achieved any kind of realistic consultation.

In that context, they have suggested that you break the negotia-
tions for such C&C agreements into small pieces, and thus make
some progress on some parts of it. Is that a useful suggestion?

Mr Rusche. Indeed, Senator, I think it is. In fact, in our commu-
nications with the affected States and Tribes, we have offered to
try to reach agreement on individual items which would be less
than normally expected for the full scope of C&C, and I welcome
the suggestion that some might have made to that effect. We would

welcome it. . , ^

Senator McClure. How much of the interaction between your
program and the States and Tribes is done by contractors as you
compared to your in-house personnel?

Mr. Rusche. I believe it is fair to say that the bulk of the inter-
action is done by Federal personnel, members of my Staff. We use
contractors, of course, to provide the technical input, but 1 believe
the direct interactions are largely with Federal personnel.

In fact, the meetings I referred to next week, the quarterly meet-
ing, I expect I will have 12 or 15 members of my headquarters
staff, to say nothing of local project staffs, who will be present in
that meeting in Spokane. . r . , f

Senator McClure. I wonder if you could make inquiry of the af-
fected States and Tribal officials, whether or not some of their re-
action comes from contact they have had with contractors, rather
than Federal personnel. . u j ^

Mr Rusche. I would be glad to make the inquiry. I have had no
such feedback to that effect, but that may mean I have not had my
ear close enough to the ground.

409

Senator McClure. In your ranking methodology— excuse me. Let
me back up and say it a different way. In justifying your decision
to mdefmitely postpone the second repository work and in justify-
ing your decision not to move some of the defense waste on the
Hanford Reservation, you cite costs as one of your major reasons

Yet, in your ranking methodology, you chose to ignore a cost
tactor that is many times larger than the cost factors just referred
to. Can you tell me why?

Mr. RuscHE. Senator, the cost factor that was utilized in the
multi-attribute utility analysis, which you refer to with respect to
our ranking, is characterized by the comment I made a moment
ago on costs to Senator Johnston. Those costs are the very best that
we can do at this time, but we do not have anything like construc-
tion quality or construction confidence in those estimates.

It seemed to us that issues about which we could have more spe-
cific information and more confident information related to health
and safety, socio-economic, environmental effects, upon which we
do have confident information, and which will affect the potential
ability of the site to serve its purpose, ought to be given greater
weight.

For that reason, that is the uncertainty in these costs— let me
just cite two examples, if I can, as to uncertainty. The repository
cost estimates show that the cost difference between a salt site and
^ ^^,^^^^ site, such as the Hanford site, is about $3.5 billion, as I
recall. That assumes that we will not have difficulty in maintain-
ing retrievability if we were to use the salt site. We are gaining
information from the experience at WIPP and from salt sites
^^Z-, • ^^^^^' particularly in Germany, as to the interest and
difficulty in addressing the subject of salt closure.

If we were required to maintain access to that salt site, as fully
as might be the case, the cost of that salt site might go up by a
substantial amount. We would not know the answer to that ques-
tion until we get into characterization.

The high cost of the Hanford site, at the other end of the spec-
trum, IS projected because of an expectation that dealing with hard
rock and high temperatures which are likely to be present in the
site not beyond technology by any means, but certainly factors
tnat have to be considered, are likely to increase the number of
people required, the amount of time required, and in effect the
long time to hold that site open before we were to close it 50 years
in the future adds much to the cost of that estimate.

If we got there and found that that was not the case, the two cost
estimates might completely flip. For that reason, we concluded it
was just not appropriate to give the same weight to such imprecise
cost estimates, even though they are the best that we can get at
tfiis time, and rather focus our attention on the issues that I men-
tioned.

Senator McClure. The States have indicated that they feel you
have not been responsive in granting them money to participate in
the process. Why did it take so long for Nevada to receive its re-
quested grant money, even after the lawsuit was decided in their
favor.''

Mr. RuscHE. The lawsuit to which you refer provided a set of cri-
teria against which we were directed by the Court to evaluate

410

grant requests for appropriateness, and much of the time was in-
volved in addressing the issues that were raised and getting a satis-
factory exchange of information between us and the State.

There is an element of fiduciary responsibility that is required
and we will try to move as quickly as we can. I believe Senator
Hecht announced yesterday that we have reached agreement on
the current grant request, on a larger portion, and are working to
finalize that grant as quickly as we can. ^ , u

Senator McClure. I understand that. I understand you do have a
responsibility. I would be the last one in the world to suggest you
waste money, even though you have it. But the other side of that
is, if you know you are going to make a grant, why does it take so
long to make a decision? . ,

Mr RuscHE. Because the elements of the grant, we are required
by the action of the Court, to evaluate against certam standards.
That requires us, we believe, to have certain information available.
Obviously, the amount of information and the quality of the intor-
mation is a subject of discussion, and we have attempted to react as

promptly as we can. . , ^i •

Senator McClure. Well, the delay gives them the impression
that you do not desire to make the grants, that you are trying to
frustrate the process, and while you can assure us that you are
doing it as fast as you can, I think you recognize it is feeding their

^^Mr^^RuscHE. Indeed, I do, Senator. In fact, I have had the same
comments made to me, so it is not a new comment. I would note,
however, in the case of the Nevada situation, that at no time has
their program been impeded by the lack of fund availability. We
granted, in the circumstance you describe, a no-cost increase to
allow the State to expend unexpended funds previously granted,
that is, granted for other purposes, but not expended, and 1 believe
we have provided the funds on a basis that did not irnpede or pre-
vent them from doing the work that they intended to do.

Senator McClure. What do you intend to do with Governor Gar-
dener's request to organize a non-binding conflict resolution proc-

^^Mr RuscHE. Senator, that could warrant some considerable dis-
cussion. At the risk of being very brief, let me suggest, as Secretary
Herrington said last week, I think there are elements in the Gover-
nor's letter that are very constructive and I appreciate the tone ot
the letter. But the idea of trying to put in place a national torum
or a national process to resolve issues of this sort, to me, is not re-
alistic. I think we have come to the one forum that can resolve the
issue, namely the Congress. j Mun „.v,r. ..r^.

I think it would be very difficult to have EPA and NRC, who are
independent and autonomous regulatory bodies, subject themselves
or agree to participate in such a forum; that we ought to try to re-
solvl our differences is without question and an objective we want,

\hat° negoTiated rulemakings, or negotiated proceedings using
third parties might be helpful, I certainly agree it is worth trying
and we will try But I do not believe that the kind of nationa
forum that the Governor suggested will serve our Purpose. We will
try to communicate that in a manner that will allow us to get what

411

we can out of the proposal, but I am not sure the Congress would
be bound by the output.

Senator McClure. I am not sure the Governor suggested that
anyone would be bound by the output, but it might be a means by
which there was a discussion to a resolution.

Mr. RuscHE. My reading of the letter suggests that the parties to
participate would entertain their participation in the context of
trying to reach a conclusion.

Senator McClure. Well, in the context of trying to, but I under-
stand it to be a non-binding process.

Mr. RuscHE. I think we need a binding process, though sir

Senator McClure. That may well be true, but people will never
teei they have been consulted if, as a matter of fact, they have not
been.

Mr. RuscHE. We believe there has been a large measure of con-
sultation going on, although I recognize there is a difference of
view on the subject. We will try.

Senator McClure. My time has expired. I have a number of
other questions to submit for response in writing. Thank vou Mr
Chairman. j > •

Senator Fowler. The Chair will yield his time to the Gentleman
trom Tennessee, Mr. Sasser.

Senator Sasser. I thank you, Mr. Chairman.

Mr. Rusche, it has been clear from the beginning that one of the
reasons the Department of Energy chose Oak Ridge, Tennessee as
the site for the Monitored Retrievable Site, was because of the ex-
pectation that the community would be receptive to this project

You said as much in one of your early draft plans. I want to sug-
?u atdX^u ^^f morning, Mr. Rusche, that community support for
the MRb has been badly eroded, and not the least because of what
1 perceive to be clumsy efforts on the part of the Department of
l^nergy to impose a Monitored Retrievable Storage site on the State
or lennessee.

Now there is a newspaper in Oak Ridge, the Oak Ridger, which
initially supported the location of an MRS in Oak Ridge, Tennes-
see. Let me just read to you some excerpts from an editorial from
this newspaper that appeared just this week.

It begins by saying:

The Oak Ridger supported having the MRS here.

If you will note, that is in the past tense. It goes on to say,

A^tW.^t?^^''" Administration had its chance to sell Tennessee on the MRS concept.
v\Jithl^n.^^ A^ Repubhcan Governor, but the Administration couldn't con-
vince the Governor, despite the best efforts of Oak Ridge

Nnw'!tT!''"^f ^''"' °''^^''^^ °^ ^^> ^'^g^ h^^ ^ kind word to say about the MRS.
much larger th?f MR^^'^W^'"" "^ "^Y'^^' ?^^ ^'^^' '' ^^' 'he MRS, the issue is
Ss^iP. fnHnHinl ?v. ^Ki^^ ""T "o 0"ger have any affect on it. There are many
the ?f.V nnnni^K ^1°^^^"^, of establishing a permanent repository. Every State on
rinolnn ^^ ^^'"^ ^"""^ ^° f^^ repository. There is the issue of whether Mr. Her-
s te^which''wrfn"h''''T^ ^^^^^ll '"l deferring consideration of a second repository
site which was to have been in the Eastern United States

EnerL'^l^ff }h" Mpf ' "^^^ ^S ^^'^^ ^^ ^^^ '^^^^ ^^osen by the Department of
WWhl/. ? ^^A?!.!'"^ '" Tennessee, is yet another issue that has come up.

KoL^dedL^d\y fh'e^Songrtsl^^ ^" ^^ """ ^" ^^^^^' °"^ ^^'^^ ^'^ "^^^^^^'^

It goes on to say that:

412

The Department of Energy's acknowledgment that it can't meet the deadline for a
permanent repository for spent nulcear fuel, its proposal for a five-year delay m
opening a permanent repository, its opinion that this makes the MRS even more
necessary as a depot at which fuel can be stored temporarily, causes MRS foes to
nod their heads knowingly and say, "I told you so." So, DOE's credibility suffered
another blow.

Now I would submit to you, Mr. Rusche, that there is not even
support in the City of Oak Ridge of any substantial amount for the
location of the MRS at that site. I think that bears out somethmg
that I said last week, when you appeared here with the Secretary
of Energy, Mr. Herrington; that this whole effort to try to sell the
MRS to a site, or select a site that would be receptive to the MRS,
convinced the populous of that State that it was the thing to do has

failed. . ,, „ u -^^

It has been botched. Let me ask you this question, Mr. Rusche, it
is my understanding that the Department of Energy is designing
an MRS facility that can be expanded from containing 15,000
metric tons of spent fuel, up to 70,000 tons of spent fuel; is that not

correct?

Mr. Rusche. The design of the MRS which would be in the pro-
posal is a flexible design that could be expanded to any size that
available land would permit.

Senator Sasser. I see. We presently have about 10,000 ot nuclear
waste on hand. Is that an accurate statement?

Mr. Rusche. A little bit more.

Senator Sasser. So we could take the nuclear waste that we pres-
ently have, store it in the MRS, it would hold all of it, and then we
have the potential to expand the MRS up to 70,000 metric tons of

spent fuel. r ■^■

Now, my question, Mr. Rusche, how can you characterize a tacili-
ty that would be capable upon expansion of holding 70,000 tons of
spent fuel as simply an interim repository? It takes on all the char-
acteristics of a permanent repository if it could be expanded up to
70,000 tons, and if indeed that is done.

Mr. Rusche. Senator, the proposal that we hope to be able to
present to the Congress when the litigation matter is finally re-
solved, contains as it did contain in its review form, which you
have had an opportunity to read, a proposal to the Congress tnat
there be a linkage made between the capacity of the MRS and the
operation of the MRS, and the repository. i ^u j •

You rightlv stated that it is the Congress who will make the deci-
sion as to whether there should be an MRS and where it should be.
It is not the director, nor the program, and our proposal to Con-
gress would be such that the kind of scenario you have painted
would not be legally workable.

The proposal would state that the capacity of the MRS be statu-
torily limited to 15,000 metric tons, and that the MRS not be al-
lowed to operate until, by connecting it with the licensing process
of the repository, we had confidence that a repository would be op-
erating. _ . ,

Now if the Congress chose to establish conditions, such as you
outline, then if I were the director, it would be possible to imagine
such circumstances, but under the provisions that we have talked
about so far, your scenario is just not possible.

413

Senator Sasser. Well, Mr. Rusche, any statute that Congress
makes can be changed. I think we can agree to that. And, if we are
sitting here with a repository that holds 15,000 tons of spent fuel,
you have 10,000 tons of spent fuel presently on hand that you want
to put into that repository, you see the repository filling up, you
can't get permission to put a permanent repository anywhere else,
it is just as clear to me as the nose on my face that the Depart-
ment of Energy, your successors are going to come back to this
Congress, and you are going to say:

Ladies and gentlemen, we have the capacity to expand this MRS up to 70,000 tons
of spent fuel.

That 70,000 ton capacity will meet our spent fuel requirements for decades to
come and we suggest we go ahead and expand the MRS because it is already there.
The people of Oak Ridge and the people of Tennessee already have the nuclear
waste. We don't have to fight that battle anywhere else; let's just expand the MRS
up to 70,000 tons and put that spent fuel in there.

That is the path of least resistance. I think that what your suc-
cessors in the Department of Energy will propose, and I strongly
suspect that that is what any successive Congress would go along
with.

My point is, if we put in this MRS in Tennessee with a capacity
to expand it up to 70,000 tons, I want to say that in my view what
we are creating there is a de facto permanent repository, and we
are going to have that permanent repository, right there, concen-
trated in an area of very heavy population, an area that has been
growing substantially in population and will continue to grow in
years to come.

Mr. Rusche. Senator, please excuse me, but I can't predict what
my successors might do.

Senator Sasser. That is precisely the point, Mr. Rusche.

Mr. Rusche. And I certainly can't predict what Congress might
do, but I do have faith that this Congress, and its successors, would
exercise judgment should such a proposal be presented to it, and in
the same sense that I interpret the law that you have passed now,
to be a right and proper course for America in disposing of nuclear
waste, I would have confidence that that future Congress would
make the choice that was right for America.

I don't know any other way that America can make choices.
Your speculation is certainly not without

Senator Sasser. If I could submit, Mr. Rusche, the law has al-
ready stated how this choice is to be made. The choice is to be
rnade with selecting a permanent repository and now we are let-
ting that whole timetable slip and we are going to try go ahead
with an MRS, and push the permanent repository off into the
future.

I just submit that once this MRS is built, with the capacity to
expand it, with no permanent repository having been selected, con-
struction not having been started on it, then the MRS is going to
be the de facto permanent repository.

Senator Fowler. The Gentleman from Tennessee and I have to
go vote, Mr. Rusche. We thank you for your testimony and in a dis-
play of bipartisan unity, I am going to leave the Chair in the capa-
ble hands of the gentleman from Nevada. The only caveat, that
permanent site selection will not occur in our absence.

414

Mr. RuscHE. Did you say not occur, or not in Georgia?

Senator Fowler. No. I have the national interests at heart.

The gentleman from Nevada, Mr. Hecht.

Senator Hecht [presiding]. Thank you, very much. When I get up
to speak, everyone leaves. Anything personal between us that
needs to be addressed happened, Ben?

Mr. RuscHE. It is just you and I, Senator.

Senator Hecht. Ben, what is the difficulty in getting the grant
issue resolved in the State of Nevada?

Mr. RuscHE. Senator, to the best of my knowledge, the items that
are yet to be addressed have to do with a part of the request that
relates to hydrology studies, geology studies and socio-economic
studies, as well as I believe some legal studies.

As you noted yesterday, of the $10.25 million Nevada grant, the
Department has reached agreement and made the grant of about
$6.7 million. The remaining $3.5 involves the items that I just men-
tioned. I hope that is going to be resolved momentarily.

Senator Hecht. I announced that yesterday morning. Either you
or one of your staff called my staff and I announced that to Gover-
nor Sawyer when he was here yesterday.

Mr. RuscHE. I understand that was the case. I got the word from
you before I did from them, and I think that is an indication of our
close communication.

Senator Hecht. Well, someone in your office is working, right?

Mr. Rusche. I believe that is so. Let me note one thing, if I can.
Among the more difficult considerations in managing the program,
not only me personally but I think the field offices like the Nevada
Office, is trying to deal fairly and promptly with grant requests.
You recall, the Nevada State activity litigated the issue and the
Court ruled in favor of the Nevada premise, and provided extensive
guidelines for us to use which have become a part of our financial
assistance program.

Now, I think if you wanted to get into a lot of detail, I could go
back and point out that there have been some adjustments in the
Nevada grant in relatively short times, compared to the budget
cycle. For example, I believe the original — let me just say, I believe
our expected magnitude of the 1987 request was only about $5.6
million.

Just after you, the Congress, adopted the continuing resolution,
that request was modified to $10.25 million, and as much as I
would like to say that I am autonomous, or the folks in Nevada are
autonomous, that just is not so. In the Federal Government we just
have to follow a number of procurement procedures, and so forth.
And I would plead for our friends in Nevada, that they, if not
agree, at least understand and we will continue to work the issue
as promptly as we can.

Senator Hecht. Did I see Bob Loux in the audience? Would you
mind walking up and sitting in this chair, Bob. I just want to verify
some of the things. I didn't know whether you went back with Gov-
ernor Sawyer or not.

I will take the prerogative of the Chair.

You have asked for $10 million; is that correct?

Mr. Loux. Yes.

415

Senator Hecht. And you are aware that you will get $6.7 million
immediately?

Mr. Loux. I just heard that as a result of your comment yester-
day. I have had no official word from the Department.

Senator Hecht. Can you give him the official word? Here is a
pen. Do you want to write him out a check?

Mr. RuscHE. Senator, I think you may be going beyond the
bounds of the Chairman.

Senator Hecht. Okay, so you are waiting for $3.5 million; is that
correct?

Mr. Loux. I don't know what the exact numbers are. I have no
idea at this point. You know more than I, other than our request
has been pending since October, with not one piece of correspond-
ence in the interim as to what the disposition would be, until I
heard yesterday.

And contrary to the point made earlier, we have contractors who
at this point are contemplating bailing out on us because we
cannot maintain a contractual relationship due to the infrequent
funding that the Department provides.

Senator Hecht. Ben just said the check is in the mail.

When will this be funded; immediately?

Mr. Rusche. I believe the funds will be available very shortly.
The action is taken in the Operations Office and I believe that that
has essentially be settled.

Senator Hecht. Okay. Then the other points that you mentioned,
are you aware of those Bob?

Mr. Loux. I have not

Senator Hecht. Go over those, again; what the hang up was on
the other $3 million.

Mr. Rusche. I indicated that there were three or four issues in
the $3.5 million remaining which are yet to have adequate infor-
mation provided, and I believe Mr. Vieth, who is the project man-
ager, and the folks in the Nevada Office have had verbal discus-
sions with Mr. Loux. He may well be right in that there have not
been a flurry of letter writings back and forth on the subject.

Those subjects have to do with the hydrology studies, geology
studies, socio-economic studies, legal services. I believe in the $3.5
million, there has been agreement at least within the Department,
and I think with Mr. Loux' awareness, that a small item having to
do with environmental studies review is premature, in the amount
of about $175,000 and therefore is not appropriate in this request.

Senator Hecht. Do you have anything you want to add to that,
Mr. Loux?

Mr. Loux. Yes, Senator, as you recall yesterday, you made a very
lengthy and I thought accurate plea for comment and discussion
based on facts rather than other factors, as you called them.

Senator Hecht. As did Governor Grant Sawyer.

Mr. Loux. Absolutely, and that is precisely my concern; that the
money that the Department apparently is not going to come for-
ward with is exactly the money that would provide us with the
ability to garner those facts for you and for the State of Nevada.
Although I am happy to receive salary money and money to be
able to operate our office, it is the money that we are talking
about, precisely here in hydrology and geology, which will get to

416

the heart of the issue of whether the site is suitable or not. And it
is the money that I am most concerned about.

Mr. RuscHE. Senator, I don't know whether you intend this to be
a negotiating session or not, but I think Mr. Loux recognizes
that

Senator Hecht. I am the fill-in act when everyone else is gone
voting. But I just took the opportunity, as I had someone from the
State who is in charge of this program, to help resolve some of
these issues publicly.

Mr. RuscHE. Almost a public mediator, of sorts.

Senator Hecht. Well, I do represent the State of Nevada and we
happen to have the man here who is running the State's program.

Mr. RuscHE. I am not trying to be flip about the matter. It is an
important issue. I think we understand, the folks in the Nevada
field office understand the importance to Nevada and to the pro-
gram, of the work that is intended.

I can assure you, and Bob, that the issue will be addressed, but it
does take participation by both parties and there are pieces of in-
formation that are required for evaluation and confirmation, and
as those are being worked, the issue will be resolved, I can assure
you.

Senator Hecht. Bob, I thank you for coming up. If you will do
this in the future, just stay in contact with my office, like you have
been, and I will be in contact with Mr. Rusche's office and we will
get these items resolved.

Thank you. You can sit back there, again. Thank you, very
much, for walking up.

Ben, to be fair to Texas, Washington and Nevada, don't you
think the site characterization work should start at the same time
and end at the same time for all three sites?

Mr. RuscHE. Senator, I don't believe it is a question of fairness.
From the standpoint of management of the program, each of the
characterization activities, in particular the exploratory shaft
work, is on the critical path to an evaluation of the site, and if we
were confident, supremely confident of the outcome of the discus-
sion, one might attempt to start them at the same time.

But our ability to predict within a few weeks or a month or two
as to how long it is going to take is not very good. We are doing
exploratory work. We can't tell for sure how long it is going to take
to conduct the in situ test program. We may find conditions
present not anticipated. It may take longer than we had guessed,
and it may take less than we guess.

I think the bottom line that I come to and I think a prudent
manager would come to is that we should start each one of them as
early as we can, and our predictions, as you well state, show that
they will not end at the same time.

We will need the information for the preparation of the EIS, but
to suggest that we would delay getting the information, I think
would be imprudent and unwise and, therefore, we have scheduled
the program as you have suggested.

Senator Hecht. Which are the different starting times and dif-
ferent finishing times?

417

Mr. RuscHE. Starting as soon as we can at each site and proceed-
ing as rapidly as we can to get through the characterization proc-
ess.

Senator Hecht. Just state publicly, what is the starting time for
each of the three sites?

Mr. RuscHE. I was trying to remember, right off the top of my
head. Let me see if I can — the start of exploratory shaft construc-
tion, we estimate about the second quarter of calendar year 1988
for Nevada. It is found in Table 1 of the draft Mission Plan amend-
ment, for reference purposes. Basalt, that is Hanford, in the third
quarter, and salt in the fourth quarter of 1989.

Senator Hecht. That means the Nevada site would be finished
about a year before the other two sites.

Mr. Rusche. The end of site characterization, if our projected
plan is realized, would have the tuff site finishing in the first quar-
ter of 1992, and the others in the first quarter of 1993, as you sug-
gested, about a year earlier.

Senator Hecht. About a year earlier. Well, we will go into that
in a little bit more detail.

Mr. Rusche. But I hope you can appreciate, it is not like we are
taking a journey from here to New York and we all want to get to
New York at the same time. We want to start toward New York,
and we may find that in some cases we have to go to Pittsburgh,
and in some cases we have to go to Philadelphia, and you can't
really tell. So if you want to get to New York, it seems to me that
the prudent course is to get started as soon as it is appropriate to
start.

That is, we have the planning done, the criteria for evaluation in
place, and that is what the site characterization plan does, and pro-
ceed as promptly as we can. That allows us the maximum opportu-
nity for unexpected or unanticipated circumstances, and I think
gives us the best chance for proceeding on the course.

You have heard others speak to me today about delaying the pro-
gram and I have had some even tell me that they think I am run-
ning a train down the track. We have tried to find a prudent, man-
agement, sound, responsible position and I think this is one of
those cases in which moving as soon as is practical is the right
thing to do.

Senator Hecht. Well, there has been concern in my home State
that if Nevada is found to be suitable, then work would stop on the
other sites immediately. How would you address that?

Mr. Rusche. Unless the other two sites would have been found
unqualified or unacceptable, that would not be the case. We are
charged under the law to prepare an environmental statement, en-
vironmental impact statement, comparing the sites characterized
as to their suitability and to provide a basis for the choice for the
President's selection of one such site, and then for that same docu-
ment to provide a basis for our construction authorization request
to the Commission, and I think that is an unfounded concern.

We expect all three sites to be found qualified and until they are
found disqualified, the work will continue on all three sites, and
should that be the case, all three will be included in the environ-
mental impact statement, as planned.

418

Senator Hecht. I just wanted to address that question publicly,
and I wanted you to speak on it publicly. That was all.

Is it true that the NRC has never approved a cask design that
DOE has submitted for casks to transport waste?

Mr. RuscHE. I would have to think about that a minute. DOE's
shipments for National security purposes, are not subject to NRC
regulation. They have been certified by the Department to be
equivalent to NRC specifications, and — could I ask one of my asso-
ciates?

Senator Hecht. Of course.

Mr. RuscHE. Roger, have we ever made an application to the
NRC for DOE?

Mr. HiLLEY. I do not think so, but we ship DOE material in an
NRC certified cask, now.

Mr. RuscHE. But I think the question was, have we ever submit-
ted for certification a DOE Cask, and I believe Roger's conclusion is
correct. That is not the procedure that is being followed now. When
we get to shipping for the civilian waste program, the casks still
may not be submitted for certification. They may be a contractor,
but as Roger points out — the gentleman who spoke was Mr. Hilley,
who is my Associate Director for Storage Systems and Transporta-
tion. We ship materials in NRC-certified casks very often. They
have been certified as a result of other activities.

Senator Hecht. I appreciate your willingness to work with us, as
far as the question of Yucca Mountain goes, or its earthquake fault
line, and we might have an independent study ourselves, in addi-
tion to you as, but this has to be addressed and I am glad of your
willingness to address it because there could be a lot of unanswered
questions. One last question and I will let my colleague take over.

As our Chairman said, we are planning a trip to France and to
Germany, and maybe Sweden — or two of these three counties, just
to determine how they are handling their nuclear waste, and they
seem to be very effective. Have you not considered the European
method of handling waste, rather than the method which is pre-
scribed in the Management Act?

Mr. RuscHE. Of course, I am familiar with the programs in sever-
al of the other countries, because we have cooperative agreements
with them. In Sweden, whose representatives you had an opportu-
nity to hear some week or two ago, their program is very analogous
to ours. They have an interim storage facility called CLAB now in
operation; they have an intermediate storage facility outside the
high-level waste arena under construction and they expect very
early in 2000, that is, right after the turn of the century, to select a
site for a geologic repository for permanent disposal. And in that
sense, it is very analogous to ours.

The French and the British have not made final choices on sites
for their permanent disposal, and have elected to store on an inter-
im basis for some indefinite period, or let me say an intermediate
period of 20 to 50 years or so. The Germans already have under
construction their high-level repository at Gorleben; and when I
look at the program that Congress mandated, I find no reason for
thinking that our approach is not comparable to, but in my opin-
ion, better in that the Congress made that final choice in the Act,

419

namely that geologic disposal was the right, permanent disposal
method for this country.

I think that was wise on the part of Congress, and I certainly
would not advocate taking a different course.

Senator Hecht. I have a lot of questions that were submitted to
me by some constituents in my State. May I submit them for the
record, and you can have your staff address them?

Mr. RuscHE. Yes, sir.

Senator Hecht. Senator Evans, it looks like you and I.

Senator Evans. Thank you, very much. Unfortunately, we are
getting ourselves into a thorough parliamentry tangle over on the
Floor which we probably won't extricate ourselves from for most of
the afternoon.

First, I hate to keep coming back to the same fundamentals, but
I think that it is terribly important. I do not feel that either in Sec-
retary Herrington's statement or in what I understand you have
said so far, that either of you understand the law.

First, do you understand the distinction between doing, as you
said, or as you referred to several times, what you wanted to do,
starting from your confirmation hearing; you thought it was more
important to do it right than to absolutely follow each of the time
deadlines in the Act.

Do you understand the distinction between being unable to meet
time deadlines because you need more technology, or more techno-
logical assessment or other elements, and deliberately deciding on
your own that you want to delay a deadline that is encompassed in
the Act?

Mr. RuscHE. I believe I do.

Senator Evans. Okay, there is a distinction, in other words?

Mr. Rusche. Certainly, and Mr. Chairman, if I may, I understood
at my confirmation that I would be given the opportunity, or have
the occasion at least once a year through the budgetary process to
expose these kinds of ideas to the Congress for their consideration.
We have done that.

Senator Evans. There is a distinct difference, however, between
asking Congress to make decisions, either by law or through the
appropriations process, and deliberately making your own mind up
and coming and informing Congress after you've done it.

Mr. Rusche. I think I understand your statement and I am not
sure that I can add any more to what has been said, sir.

Senator Evans. You are going to stiff me, just like the Secretary,
in other words.

Mr. Rusche. I would never

Senator Evans. You will not answer the question.

Mr. Rusche. I do not intend to stiff you. Senator.

Senator Evans Well, you know what the law says in the section
referring to a second repository. How can you say that you have
the authority or the discretion to decide on your own that for what-
ever purposes, you can simply delay the development of a second
repository?

Mr. Rusche. There is obviously a difference in view between
yourself and the Secretary and the Department. We thought that
the course we took of making such a determination and bringing

420

that determination for your review through a Mission Plan amend-
ment was appropriate and I gather that you think it is not.

Senator Evans. No. There is a distinct difference for our review.
You are suggesting that if we do nothing, that that is acquiescence.

Mr. RuscHE. No, sir. I am not. , . j i r

Senator Evans. Does that mean you are bringing this delay ot
the second repository to Congress and, unless we approve it, you
will go back to the way the law reads?

Mr. RuscHE. That is precisely what the Secretary said last week.

Senator Evans. He certainly did not. In other words, you are pre-
pared to proceed immediately on the second repository unless we,
specifically by modifying the law, suggest that something else be

done. 1. . J J

Mr. RuscHE. We asked you for specific direction and we under-
stand that specific direction will be forthcoming. That is the pur-
pose of the amendment.

Senator Evans. In other words, if the Congress does not pass any
modification in the Nuclear Waste Policy Act, you will return im-
mediately to the development of on the second repository. Is that

correct

Mr. RuscHE. I believe that is the statement the Secretary made,
and I would like to reserve to be sure, but I am confident that that
is the case. I would only note that proceeding immediately carries
with it certain connotations, and the funding that is now available
has been provided under certain provisions as well.
Senator Evans. I understand all of that. j • ^u

Mr. RuscHE. And that would have to be accommodated in the

process. , ^ ,. „ , ,

Senator Evans. I think that it is safe to say that a reading ot the
testimony of the Secretary last week will show that at least five ot
us on this Committee tried to get an explicit answer out of the Sec-
retary and were unable to do so. .

Mr. RuscHE. Would you allow me to look at the testimony and
see if I can provide a written answer on that subject for you?

Senator Evans. And I think that I will also supply another writ-
ten question to make it very explicit. The question I hope will be
explicit enough so that it will only take a yes or no answer. 1 will
try to craft one in that form.

Mr. RuscHE. And we will try to respond, sir.

Senator Evans. Secondly, on the whole question of consultation
and cooperation, is it accurate to say that at least the State ot
Washington over a period of almost five years, or since the passage
of the Act, has on a considerable number of occasions attempted to
move forward and to reach a C&C agreement?

Mr. RuscHE. That is correct, sir. In fact, I think you are aware
that before the May 28th decision, we had I guess what I would call
discretionary C&C negotiations— that is, not required under the
Act, because they are required after selection for characterization.
Prior to that time, the State of Washington had sought and we
had together, been working toward a C&C agreement and had alter
about six or eight months, as I recall, reached an understanding
that there were two items that remained that we probably would
not be able to resolve in that context. Those had to do witn indem-
nification, and had to do with the Defense waste issue.

421

Save for those two, 18 months ago if you had asked me, I would
have suspected that we were ready to sign a partial C&C agree-
ment.

Senator Evans. You were not in attendance yesterday, or at
least I do not believe you were. There was extended testimony from
all of the Indian Tribes States represented that they believe that
they have tried. I do not accept the conclusion that you stated ear-
lier, that it was the interest of States to delay and by continuing to
delay and obstruct, to prevent you from doing what you want to do.

I think there is a deep concern and the deep concern ought to be
alleviated. The only way you can alleviate it is to cooperate and
consult. Consult does not mean laying out a full-fledged document,
or a full-fledged idea or set of ideas, and then ask for it to be ac-
cepted by the other party.

In my view, the day you start true consultation and true coopera-
tion is by sitting down with the States and with the Indian Tribes
before the first pencil gets laid to a paper, and start building a con-
sensus from the beginning.

Has any thought been given to approaching consultation and co-
operation on that basis?

Mr. RuscHE. Senator, I believe that some of the things we do
tend to fit that pattern. While you were out, I think I referred to
the fact that we have 12 coordinating groups that operate to bring
the projects and the program into a manageable state.

Senator Evans. I read about those.

Mr. RuscHE. Those coordinating groups are somewhat of the type
that you are talking about, or at least present the potential for
that.

The closest thing I can point to that would fit that pattern specif-
ically is a direct offer I made to representatives of the States and
Tribes to consider the possibility of, in effect, joining my staff, as it
were, and functioning as a part of the activity in a way like you
are talking about, and I would think that there would be only one
proviso that we would have to agree on if that were the case. And,
that is, that when we reached a conclusion they would be a party
to the conclusion, just like my staff is a party to conclusions that
we reach.

There was interest in participation, but not interest in becoming
a party to the activity. I think that is an endemic feature that we
run into when you try to think of cooperation in that sort of pure
state.

That the parties want to participate, but do not have the same
objective in mind, and therefore, it is an activity that does not
come to closure.

Senator Evans. I do not believe that that necessarily has to be
the case. Certainly, however, no one is going to participate on that
basis if they believe that they have to be part of the conclusions if
the conclusions are to be set forth by one party to the negotiation.
Both parties have to agree with the conclusions, almost by defini-
tion. If they do, then you have an agreement, of course.

Mr. RuscHE. If one of the parties is going to be in a position to
veto, then I think that is inconsistent with both the authority and
direction under the Act.

422

I could not operate in that environment. If that is the environ-
ment Congress wants us to operate it, this is another opportunity
for direction from the Congress.

Senator Evans. Well, we had considerable success m the imple-
mentation of the provisions of the Pacific Northwest Power Act of
1980 in doing just that; sitting down with those who were at each
other's throats and had been for years. The Indian Tribes, utilities,
fishery managers, were all arguing about a declining resource. We
did sit down in a room and we did start from the beginning and we
did get cooperation and we eventually reached an agreement. Sub-
stantial progress has been made since they in achieving the goals
of the Act.

Mr. RuscHE. But, Senator, isn't there a fundamental ditterence
between that activity— I am not as aware of it as some, but I have
spent some time in your State in two or three different instances,
and I am aware of the work that you did as Governor and follow-
ing. But it seems to me that the difference in that activity and the
ones we are confronted with here is that the parties, even though
they may have had different views about the subject, they wanted
to see something done. They wanted conservation activities, the
fishery activities to be carried out. The question was where and
how much.

Senator Evans. I do not think so. They sure did not start that

way. .J

Mr. RuscHE. Well, I have a different impression from the outside,

but I appreciate your view.

Senator Evans. No, and in fact, when the final fish and wildlife
plan, for instance, was done, it was filed and there were no law-
suits whatsoever filed against it. Each party accepted it.

How many pending lawsuits are there currently with the Depart-
ment?

Mr. RuscHE. I believe there are 41, if I am not mistaken.

Senator Evans. Let me proceed. The State has suggested a differ-
ent style or different kind of conciliation. I thought the Governor
made a remarkably good effort to try to lower the voices and try to
get back on track. To my knowledge, he has not even received an
answer from the Department in response to his letter. It has been
well over a month.

Is there going to be an answer from the Department?

Mr. RuscHE. Senator, I hope you will forgive me for answering
like I feel compelled to answer, in the sense that we have not re-
ceived the letter yet. Now, I have a copy of the letter. I met with
the Governor on the 18th of December, in which he and Mr. Es-
chels, who was here yesterday, talked about the matter, and very
soon thereafter— I believe the date of his letter is December 30th—
we received copies of the letter from the press, and maybe even
from your office, if I am not mistaken. We have not yet received a
copy of the letter from the Governor.

Mr. Eschels is aware of that. Mr. Hussman is aware of it and
that issue has been settled. Nevertheless, we have been addressing
the matter. There will be an answer to it.

Senator Evans. I would say, if you haven't received the letter, all
it takes is a phone call to ask them to send it to you formally.

423

Mr. RuscHE. We have been working on it. We have had some dis-
cussion.

Senator Evans. It takes 30 days for a phone call?

Mr. RuscHE. 30 days? No, we started working when we got it
from the press.

Senator Evans. In other words, it has not delayed you at all?

Mr. RuscHE. It has not.

Senator Evans. Okay, it has been more than 30 days and there
has been no response.

Mr. RuscHE. And there will be a response.

Senator Evans. How long?

Mr. RuscHE. I attempted to give a response while you were out,
from someone else who asked me the question, and the kind of re-
sponse I gave, again, was consistent with the Secretary's testimony
of last week on the subject, which is that although there are a
number of items that seem to have merit, I think the idea of a Na-
tional forum to resolve issues that are identified, particularly siting
issues and C&C issues, is a noble objective, but I doubt that the
parties who are identified by the Governor and perhaps others not
identified, could participate in that environment. We are prepared
to try to work in that area, but I don't think a National forum,
other than the Congress is going to settle the issue.

Senator Evans. Well, it sure will not work if you go into it with
the attitude that doesn't have a chance of working.

Mr. RuscHE. Well, do you think the Congress might be able to
settle it?

Senator Evans. I am not quite sure whether we will because it
doesn't seem to make much difference, in what Congress passes.
You choose to follow which portions of the law you choose to
follow. You decide unilaterally to delay a second repository. That is
against the law.

I cannot get from either you or the Secretary any admission that
that is so clearly the case. Five Senators asked the last time. They
would all ask the same question today, if they were here.

Mr. RuscHE. Sir, I believe I answered the question explicitly, and
I believe the Secretary did, too. We will answer it in writing for
you.

Senator Evans. Let me just say in one final set of questions — I
am not going to ask the questions, because I will ask them in writ-
ing— I have to go vote, again.

The investigative committee in the House did quite an analysis
of the site selection process and I know they submitted a good
many questions on that. Have those questions been answered?

Mr. RuscHE. I have a letter to sign today that will present an
answer to those questions in detail.

Senator Evans. Would it be appropriate to have copies sent to
us, or should we ask the House for that?

Mr. RuscHE. Oh, no. We would be pleased to include you on the
list and see that you get them in the next few days.

Senator Evans. That may make the series of questions a little
shorter, at least, I hope it will. It seems apparent that in the course
of the travel of the recommendation report for the first repository
from the analysts who did the report, to those who reviewed it and
put it out, that there were very substantial changes — changes that

424

it at least appears to be, were inappropriate, not scientific in
nature. I am going to have to ask as many questions are necessary
to find out why, under what circumstances, who and how those
changes were made.

Mr. RuscHE. We would be pleased to see your questions, but per-
haps the answers that we have provided, which may or may not
serve your needs, would be helpful. I will see that you get a copy
within the next few days.

Senator Evans. All right. Thank you. There will be, I am sure, a
very long series of written questions from the various Members.
But Members should submit questions for the record by close of
business on Friday. We are going to have to go back and vote, and
so without further business, we are adjourned.

Mr. RuscHE. Thank you. Senator Evans.

[Whereupon, at 12:15 p.m., the hearing was adjourned, subject to
the call of the Chair.]

APPENDIXES

Appendix I

Responses to Additional Committee Questions From the January

29, 1987 Hearing

POST-HEARING QUESTIONS AND ANSWERS
RELATING TO THE HEARING OF JANUARY 29, 1987

BEFORE THE

COMMITTEE ON ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE

WITNESS: SECRETARY JOHN S. HERRINGTON

(425)

426

QUESTIONS FROM SENATOR JOHNSTON

QUESTION la: What are the circumstances under which DOE will

make the amendments to the Mission Plan effective?

— In your view is legislative action required
to make these amendments effective or will
the amendments become effective if no
legislation is enacted by Congress?

— When will DOE decide that Congress has not
approved or is not likely to approve the
amendments by legislation?

— What will happen in the program in the
meant Ime?

ANSWER: DOE expects to formally submit the Mission Plan

Amendment to Congress this summer after the
comment period for States, affected Indian Tribes
and Federal agencies and others who chose to
comment- DOE hopes Congress will act positively
and promptly regarding the issues dealt with in
the Mission Plan Amendment.

The schedules set forth in the Draft Mission Plan
Amendment were based on programmatic judgments.
They were not intended to set forth any particular
legal positions, but rather to describe the
Department's considered and informed judgments,
based on its actual experience in administering
these programs, of the course and timing Chat the
first and second repository programs should

427

- 2 -

take given current circumstances. The Department
recognizes that carrying out these programs in the
way described in the draft Mission Plan Amendment
will require Congressional approval.

The Department hopes Congress will act favorably
on the Department's proposal during this current
budget cycle. If Congress does not affirm the
program as set forth in the Mission Plan Amendment
through some legislative action by the end of
consideration of the current budget cycle, the
Department will go back, and try to meet the
schedules and requirements of the NWPA.

428

QUESTIONS FROM SENATOR JOHNSTON

QUESTION Kb): How will DOE interpret approval by Congress of the
QUESTION HD, jniiiion amount for expenditures from the

Nuclear Waste Fund contained in the President s
budget with regard to your authority to make these
amendments effective?

What is your answer if the $725 million
figure in the budget request is approved?

In your view would approval of this level of
funding have the effect of repealing any
requirements in the Nuclear Waste Policy Act.

ANSWER:

The Department is preparing a budget amendment of
$225 million for a total request of $725 million
which will allow the program described in the
Mission Plan Amendment to be carried out.
Assuming Congress approves only $500 million of
this request, the Department would hope that
Congress would provide clarifying guidance for the
reduced amounts as to the course and pace of the
program.

Assuming there are appropriate directions from
Congress accompanying the approval of the full
$725 million budget in the budget appropriation
report, the Department would consider those
directions to be a valid legal instruction and
would seek to implement those requirements.

The Department considers that Congressional action
on the Department's budget request as documented
in a budget appropriation report could provide new

429

- 2 -

direction to the Department in implementing the
Nuclear Waste Policy Act.

430

QUESTIONS FROM SENATOR JOHNSTON

„_-„ ,, ^. How would you answer these questions if Congress
QUESTION 1(c). ^°^^^^^^ ^l^^ ^^^^^^ between $500 million and $725

million?

ANSWER: The Department would hope that Congress would
provide clarifying guidance in any budget
appropriation other than the Department's specific
request.

431

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 1(d): If you believe that you are acting within your
statutory authority under the Act in making the
Mission Plan amendments effective, why are you
asking for legislative direction from Congress?

ANSWER:

As discussed in our response to Question 1(a), the
schedule and plans in the draft Mission Plan
Amendment are based on programmatic judgments and
are not intended to set forth legal positions.
The Department recognizes that carrying out these
programs in the way described in the Draft
Amendment differs from certain schedules in the
NWPA, hence. Congressional approval is necessary.

432

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 1(e): Haven't the Mission Plan amendments actually
been in effect since May 29, 1986?

ANSWER :

As a practical matter, the Department has
continued to catalog and document the public
hearings and associated records developed in
connection with the second repository program.

The Department has, however, been concentrating on
first repository siting activities as announced in
May 1986. If Congress does not affirm the program
as described in the proposed Mission Plan Amendment,
the Department will go back and try to meet the
requirements of the NWPA even though we recognize
that some of the dates will be unachievable.

433

QUESTIONS FROM SENATOR JOHNSTON

Question 2: Incentives

a. Please describe for the Committee your best
understanding of what would be the economic
impact within the State of repository siting in
Texas, in Washington, and in Nevada. Describe
the benefit package that DOE plans to offer in
each State, your estimate of the number of jobs
to be created in each year and any other
economics associated with the construction of a
repository that is of interest.

b. Has DOE or its contractors ever done a study or
provided information and analysis of the
potential benefits that might be made available
to a State that becomes host for a waste
repository or temporary storage facility?

-- If so, when and by whom?

-- What were the major findings?

— Please provide copies for the record.

c. Has DOE ever discussed with a State or affected
Indian Tribe the benefits that would be made
available in a State in which a repository is
located? Specifically, what was discussed in
each instance?

Answer a: The Department of Energy has identified the

following general economic impacts associated with

a repository:

o Employment

- Direct construction employment

- Direct operation employment

- Indirect construction employment

- Indirect operation employment

434

- 2 -
o Economic Activity

- Wages and salaries from repository spent in
local communities

- Secondary wages and salaries

- Purchase of project material and supplies

o Public Sector Revenue

- Payments-Equal-To-Taxes (PETT)

- Other DOE grants

- Impact assistance

- Taxes from contractors

- Sales taxes from project purchases

- Sales tax from consumer goods

However, DOE has not proposed any benefits package
to Nevada, Texas, and/or Washington.

At this time, DOE's best estimate of the economic
impacts of repository siting, construction, and
operation in Nevada, Texas, and Washington is as
follows:

o Nevada (Yucca Mountain)

- Nearly 700 direct and indirect jobs during
site characterization.

- Over 4,800 jobs related to the project during
peak repository development.

435

- 3 -

- Nearly 4,500 direct and indirect jobs during
peak repository operation.

- Over 1,000 direct and indirect jobs during
repository decommissioning.

- The procurement of a substantial portion of
exploratory shaft construction and repository
construction materials through southern Nevada
contractors during site characterization and
repository construction.

- Peak annual wages of over $130 million during
construction.

- Increased revenues from taxes and from NWPA
grants .

- A projected increase in the dollar value of
local purchases during site characterization
and repository construction.

o Texas (Deaf Smith County, Swisher County)

The worker data for the Deaf Smith site during
1987 and 1988 has been revised from estimates
presented in the Final Deaf Smith County
Environmental Assessment. DOE now estimates
that the number of DOE and contractor employees
is expected to exceed the number of employees
estimated in the Final Deaf Smith County
Environmental Assessment. The increased number
of workers reflects estimates of positions from

436

- 4 -
Requests for Proposals for two integrating and
technical contractors. The worker information
is subject to change as contractor negotiations
proceed. DOE is currently in the process of
reviewing the worker data during construction,
operation, and decommissioning.

- About 1,200 direct jobs will be created during
the first few years of site characterization
(revised worker data) .

The following data is based on the Final Deaf
Smith County Environmental Assessment:

- About 2,000 direct and indirect jobs at the
peak of repository development.

About 2,000 direct and indirect jobs at the

peak of repository operation.

Over 230 direct jobs during repository

decommissioning.

- Local fiscal and socioeconomic benefits from
the over $250 million spent on project wages
and materials during site characterization.

- A projected increase in the dollar volume of
local purchases of about $9.4 million per year
during repository construction. Additional

437

- 5 -
increases will accrue during site characteri-
zation and exploratory shaft construction.

- Increased revenues from taxes and NWPA grants.

o Washington (Hanford)

- About 2,500 direct and indirect jobs at the
peak of site characterization activities,
including a substantial number hired locally.

- About 1,100 direct and 1,3 00 indirect jobs at
the peak of repository development, including
a substantial number hired locally.

- Over 800 direct and 1,000 indirect jobs at the
peak of repository operation.

- A projected increase in the dollar volume of
local purchases during site characterization,
exploratory shaft construction, and repository
construction.

- Increased revenues from taxes and from NWPA
grants .

Answer b: Although DOE has examined in the Environmental

Assessments the potential economic effects that may
occur to a State or local area during site
characterization, construction, operation, and
decommissioning, neither DOE nor its contractors
has conducted a separate formal study to analyze

438

- 6 -

the potential benefits that might be made available
to a State that becomes host for a waste
repository.

Answer c: DOE has not specifically discussed potential

benefits that might accrue to the State or Indian
Tribe if a repository were located there. However,
the Consultation and Cooperation Agreements may
afford DOE and the States and Indian Tribes the
opportunity to discuss this issue.

DOE has also examined the potential economic
effects to State and local areas of the location of
an integral monitored retrievable storage (MRS)
facility (which would include some temporary
storage) . The results of that effort are contained
in the MRS proposal , which was submitted to
Congress on March 31, 1987.

439

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 3 : Site Ranking Methodology

ANSWER:

DOE submitted its site-selection methodology to the
National Academy of Sciences to assure itself that
the methodology was adequate. NAS reviewed the
methodology but not DOE ' s use of the methodology.

and

Please describe the task given to NAS, their
findings and the implications of these findings for
public perception of the program.

The task originally requested of the Board on
Radioactive Waste Management/National Academy of
Sciences (BRWM/NAS) was "... to perform an
independent review of the adequacy of a ranking
methodology ..." (ref. letter from B. Busche to F.
Parker, August 29, 1985) . Subsequent to this, the
DOE requested that the BRWM/NAS conduct an "...
independent review of the application of the
methodology ..." (ref. letter from B. Ruscshe to F.
Press, October 30, 1985) .

Rather than risk misinterpreting the BRWM's
findings by trying to summarize them, we include as
attachments their two letter reports on the
methodology, the first dated October 10, 1985, and
the second dated April 10, 1986.

With regard to the implications of these findings
to the perception of the program, we wish to make
two points. First, and most obvious, it is
gratifying to receive what is essentially a very

440

- 2 -

complimentary review from so prestigious a group as
the BRWM/NAS. The favorable review of the BRWM/NAS
did much to enhance the credibility of the DOE
siting process.

Second, the findings of the BRWM/NAS demonstrate
DOE'S responsiveness to comments received on draft
documents, in this case, draft environmental
assessments. As you may be aware, the three simple
ranking methodologies presented in the draft EAs
were criticized by many reviewers, including the
BRWM/NAS. The decision to adopt a formal decision-
aiding methodology and to take the time to do the
job right were made largely in response to comments
on the draft EAs. Also in response to public
comments, the DOE requested that the BRWM/NAS
conduct an independent review of the methodology.

441

NATIONAL RESEARCH COUNQL

COMMISSION ON PHYSICAL SaENCES. MATHEMATICS. AND RESOURCES
2Sn Camanna* Mrtmt HMtai>|ran D C XMU

October 10, 1985

Mr. Ben C. Rusche. Director OCRWM
U.S. Department of Energy
RW-1 /Forrestal
Uashlngton. D.C. 20585

Dear Mr. Rusche:

In response to your August 29, 1985 request that the Research Council's
Board on Radioactive Waste Management conduct *an Independent review of the
nethodology to be used to evaluate sites for consideration as candidate sites
for characterization for the first geologic radioactive waste repository", the
Board has reviewed the Department of Energy's (DOE) August 1985 document "A
Methodology for Aiding Repository Siting Decisions." The document describes
work In progress on the application of the nultlattrlbute utility technique to
help the Secretary of Energy select three sites to recoimend to the President
for characterization as candlda^'e sites for a repository for permanent deep
geologic disposal of high level radioactive waste as required by the Nuclear
Waste Policy Act (Sec 112 (b) (1) (B)).

The Department of Energy's August methodology paper presents only the
basic concepts of the multlattrlbute utility technique, together with a few
simplified Illustrative examples. Consequently, it Is Important to note that,
except for some of those Involved In multlattrlbute utility technique Itself,
the Board on Radioactive Waste Management did not have an opportunity to
consider matters of technical substance, such as site-specific data or
revisions to the draft Environmental Assessments. Further, since It was not
contained In the methodology document, the Board was not able to examine the
specific Implementation of the multlattrlbute utility technique being
developed by DOE (Including performance measure scales, scoring procedures and
associated probability distributions. Influence diagrams, utility functions,
weighting factors, and procedures for selecting panels of technical experts
and DOE decision makers).

Nevertheless, the Board commends DOE for Its adoption of a rigorous form
of this decision-aiding methodology. While recognizing that there Is no
unique procedure for ranking, the Board believes that the multlattrlbute
utility technique can be an appropriate method by which to integrate
technical, economic, environmental, socioeconomic, and health and safety
issues to assist DOE in its selection of sites for characterization. Thus we
feel that our concern about the appropriateness of the methodology, as
expressed in our April 26, 1985 critique of Chapter 7 of the December 1984
Draft Environmental Assessments, has now been addressed.

7W N&nmmtS Xtft^irril Cammttl la t*« p^mnpmt •pf^tff *$f*r^ »* f* V«n»"fll *tt40^^ 9f Scir^rm tm4 tkt W«n«M«i Attdf^y mt C*f«««cM»f

It •*»»• Iff-, f -^f-r t*« fli*'' ffcwuiMM*

442

Mr. Ben C. Rusche
(ktober 10, 1985
Page 2

Although the multlattrfbute utfHty technique proposed by DOE appears
•pproprlate, the technique must be Implemented correctly and accurately to be
useful and credible. The adequacy of the application of the technique can
only be evaluated after the analysis Is complete. In the absence of documen-
tation on how the multlattrlbute utility technique Is being applied by DOE we
cannot now determine the extent to which our earlier concerns will be answered
about the adequacy of site rankings, the appropriateness of documentation
supporting and describing the results, and the potential for bias in applying
the technique.

The Riultiattrlbute utility technique appears to be a promising approach
for stating clearly and systematically the assumptions, Judgments, pre-
ferences, and tradeoffs that must go into a siting decision. As explained in
the Board's letter of April 26, 1985, the 'utility estimation" technique used
in Chapter 7 of the Draft Environmental Assessments was not adequate, because
it treated post-closure factors independently and gave them equal weight for
all sites. The Board reiterates that a scientifically defensible method of
integrating and weighting the post-closure factors at each site is to conduct
a "performance assessment" using quantitative models, as reconnended in the
National Research Council's report on the Waste Isolation Systems Project.

Were adequate data and validated models available, the results cf the
performance assessments could provide a direct estimate of post-closure
performance, which could be Integrated with pre-closure factors by using a
multlattrlbute utility technique analysis to compare sites. When currently
available performance assessments are not adequate for reliable direct
comparison of the expected post-closure performance of the five sites.
Judgments of experts may be used to develop subjective estimates of the
performance of the post-closure factors at each site. DOE has proposed that
its technical experts and those of its contractors use this approach to
develop performance measure scales and to score each site on those scales.
The Board is concerned that DOE's use of its own technical experts to assess —
performance by this subjective method may mask the degree of real uncertainty
associated with post-closure issues.

The Board believes that particular emphasis must be placed on the analysis
and comparison of the post-closure performance of the sites in order to test
the validity of the conclusion in the Draf* Environmental Assessments that the
five sites are essentially indistinguishable with respect to the post-closure
measures. The credibility of those estimates would be substantially enhanced
if in independent panel of outside experts were to review the complete
analysis prior to issuance of the final Environmental Assessments.

DOE proposes to use multlattrlbute utility technique as a decision-aiding
rather than decision-making technique. The Board on Radioactive Waste Manage-
ment supports this limited approach. As stated in our letters of April 2,
1984 to DOE and the U.S. Nuclear Regulatory Commission, "The combination of

443

Nr. Ben C. Rusche
October 10, 1985
Page 3

complexity and uncertainty [in the repository siting problem] Implies that DOE
must be accorded substantial discretion to exercise Its best technical judg-
nent In recommending three of the nominated sites according to Sec. 112 (b)
(1) (B)." Proper Implementation of the multlattrlbute utility technique would
tliufflnate DOE's decision process by presenting a comprehensive and explicit
specification of the assumptions, value Judgments, and technical estimates
used In ranking the sites.

The comprehensive, explicit disclosure made possible by the multlattrlbute
utility technique Is both a strength and a weakness. Its strength Is that It
documents a difficult and controversial decision. Its weakness Is that the
documentation Itself will be, of necessity, complex, lengthy, and burdened
with concepts that are themselves formidably technical and hard to explain.

The complexity of the multlattrlbute utility technique demands scrupulous,
methodical Implementation, and 1t Is crucial that DOE take time to do the job
right. More time than Is currently planned by DOE to complete the Environ-
mental Assessments may well be needed, but the Importance of the decision on
site characterization to the Implementation of the Nuclear Waste Policy Act as
a whole strongly supports the wisdom of a careful, comprehensive application
of the technique. A prompt decision now by DOE to take additional time would
also permit Internal and external review 6f the key technical components of
the multlattrlbute utility technique.

A potential difficulty 1$ that the siting guidelines specify a hierarchy
of Importance between the pre- and post-closure groups of factors and among
the three groups of pre-closure factors. While the general Intent of
specifying an order of priority 1s clear, there remains the possibility that
translating a vaguely worded requirement Into precise mathematical constraints
on the numerical weights estimated as part of the multlattrlbute utility
technique (as proposed by DOE) may lead to Implicit value Judgments that DOE
Is not prepared to defend. An early concern of the analysis should be to
determine whether or not this Is in fact the case.

The Board recommends that the methodology and assessment portion of
Chapter 7, because of Its Importance In site ranking, be written so that It
can stand alone with an Introduction that puts the candidate site selection
process In perspective. The Board also urges that the theory, data, and
methods used In the site recommendation process be presented clearly and
understandably so that all uncertainties and judgments are made explicit. The
Board recognizes that a major advantage of the mul ti attribute utility
technique approach is that it can facilitate such a presentation.

The Board appreciates the difficulty faced by DOE in responding to all the
cotments on the Draft Environmental Assessments, in revising the assessments,
and in applying a more refined technique to help select the three candidate
sites. We compliment DOE on the way in which they have responded with a
revised methodology to our concerns and those of others about the Draft

444

Mr. Ben C. Rusche
October 10, 1985
Page 4

Envtronmental Assessments. The Board supports the rigorous application of the
new methodology and would be pleased to amplify any of the points raised In
this letter or In our meeting of October 1-3, 1985 with the staff of the
Office of Civilian Radioactive Waste Management.

Sincerely,

Frank L. Parker
Chairman

Board on Radioactive
Waste Management

FLP/JC

445

NATIONAL RESEARCH COUNCIL '

COMMISSION ON PHYSICAL SCIENCES. MATHEMATICS AND RESOURCES

2101 Con4tirunon Avrnue V\*4hinjt(on D C ^^1«

BOARD ON
RADIOACrrVE WASTE MANAGEMENT

omci locAriON

tOflFM HINVT lUILOtNC

nSTTTmiVT AND

PINNfTLVAMIA AVINUI. N W

April 10, 1986

Mr. Ben C. Rusche. Director OCRWM

U.S. Department of Energy
RW-1/Forrestal
Washington, D.C. 20585

Dear Mr. Rusche:

In response to your August 29, 1985, request that the National Research
Council's Board on Radioactive Waste Management (Board) conduct "an Indepen-
dent review of the methodology to be used to evaluate sites for consideration
as candidate sites for characterization for the first geologic repository,"
and your October 30, 1985, specific request that we further undertake an
"Independent review of [the] application of the methodology," the Board has
reviewed portions of the Depart;nent of Energy's (DOE or Department) March 17,
1986, draft of the final Candidate Site Recommendation Report (CSRR), The
Board has previously provided DOE with comments on the Department's original
draft methodology by its letter of April 26, 1985, and conments on a revised
methodological approach by Its letter of October 10, 1985.

It is neither appropriate nor the Intent of the Board to address the
ultimate ranking or the recommendation of specific sites, both of which go
beyond the implementation of the decision-aiding methodology. Accordingly,
the chapters and appendices reviewed by the Board and its consultants were
limited to an overview of the decision-aiding methodology. Its application to
post-closure factors for all five candidate sites, and its application to
pre-closure factors at one site. The Board chose not to review, and at Its
own request did not have access to, DOE's rankings on pre-closure factors,
rankings combining post-closure and pre-closure factors using the decision-
aiding methodology, or the final reconmendation of sites for characteri-
zation. Because of the limits on available time and the volume of the
documentation involved, the Board did not attempt to review the site-specific
data In the draft Environmental Assessments (EAs). To help conduct this
review, the Board enlisted the aid of four consultants, three of whom are
recognized experts In multi-attribute utility analysis and Its applications.

THE DECISIOM-AIDIMG METHODOLOGY

The Board conmends DOE for the high quality of the chapters that were
reviewed. The use of the multi-attribute utility method is appropriate, and
the Board is Impressed by the care and attention to detail with which it has
been implemented. It should be noted, however, that the Board's focus was on

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446

Mr. Ben C. Rusche
April 10, 1986
Page 2

nethodology and its Implementation and that the Board has not reviewed 1n
detail the data and Judgments on which the conclusions from the multi-
attribute procedure are based.

While recognizing that there Is no single, generally accepted procedure
for integrating technical, economic, environmental, socioeconomic, and health
and safety Issues for ranking sites, the Board believes that the multi-attri-
bute utility method used by DOE Is a satisfactory and appropriate decision-
aiding tool. The multl -attribute utility method is a useful approach for
stating clearly and systematically the assumptions, judgments, preftences,
and tradeoffs that must go Into a siting decision. The Board strongly
supports the DOE position that the methodology is best applied only as a
decision-aiding tool and that additional factors and Judgments are required to
Bake final decisions about which sites to characterize. These Include the
diversity of rock types required by the Nuclear Haste Policy Act of 1982,
judgments about the ability to license successfully a site including
considerations of waste package performance, and judgments about the best set
of sites to choose to assure the highest likelihood of a licensable site
emerging from the characterization process.

The Board Is disappointed that DOE did not follow the recommendation, made
In the Board's April 26 and October 10 letters, that independent experts be
brought Into the assessment process itself as well as into the review of the
process. As noted in the October letter, "The Board is concerned that DOE's
use of Its own technical experts to assess performance by this subjective
method may mask the degree of real uncertainty associated with post-closure
Issues." The Board has seen nothing to Indicate bias in the implementation of
the method and recognizes that, in this Instance, the DOE sensitivity analysis
applied to post-closure Issues Indicates that the rankings on these Issues
would not change with reasonable or plausible changes in the parameters and
Judgments. In other applications of the methodology, however, the results may
not be so insensitive to the Judgments. In that event the addition of
Independent experts in the generation of those Judgments would be important.
A final concern with the review draft remains: the need for additional
documentation beyond that Included in the March 17, 1986, draft of the
reasoning and Judgement Involved in the choices of the scores and proba-
bilities associated with the various scenarios. On the basis of discussions
with DOE staff, the Board anticipates a satisfactory response to this concern
In the final version of the CSRR.

II. POST-CLOSURE ANALYSES

The DOE application of the multi-attribute utility method for the post-
closure factors provides useful information concerning the Department's
current Judgment of the expected performance of the sites for the post-closure

447

Mr. Ben C. Rusche
Aprn 10, 1986
Page 3

period and on its judgment of the range of uncertainties. The Board
reiterates that, when adequate data and validated models are available,
conducting a probabilistic "performance assessment" using quantitative models,
as recommended by the National Research Council', is a scientifically
defensible method of integrating and weighting the post-closure factors at
each site. In the absence of performance assessments capable of comparing the
expected post-closure performance of the sites directly, judgments of experts
are appropriately used to develop subjective estimates of the post-closure
factors at each site. DOE has implemented this approach using its technical
experts and those of its contractors, and it appears to have incorporated
information resulting from models on the release and migration of radio-
nuclides to the "accessible environment" (as defined by the Environmental
Protection Agency (EPA)). The Department has also conducted an extensive
sensitivity analysis.

The DOE analysis assesses post-closure performance based on probabilities
of releases to an arbitrarily defined and universally applied accessible
environment. This approach is consistent with the DOE siting guidelines and
follows the requirements for repository performance established in the EPA
Standard (40 CFR 191). Because this approach does not take into account the
differences among sites in pathways from the EPA accessible environment to the
biosphere, and thus the potential consequences of any given release at the
accessible environment, the Board recomnends that the DOE decision makers
consider such differences in addition to the results of the decision-aiding
methodology. Chapter 6, which the Board has been told considers decision
factors beyond the scope of the multi -attribute utility method, would seem to
be the appropriate place to incorporate such consideration for the present
decision. If the multi -attribute utility method is applied to a future site
selection process, however, the evaluation of relative environmental
consequences should become part of the post-closure analysis. Such an
approach would facilitate comparison of post- and pre-closure results.

III. PRE-CLOSURE ANALYSES

The pre-closure results are stated in terms of dollar costs, estimated
lives lost in building and operating a repository, and performance measures
covering esthetic, archeological , biological and socioeconomic impacts.
Although the multi-attribute utility method significantly clarifies the

^ National Research Council 1983. A Study of the Isolation System for

Geologic Disposal of Radioactive Wastes. Board on Radioactive Waste
Management, Panel on Waste Isolation Systems. National Academy
Press, Washington, D.C.

448

Mr. Ben C. Rusche
ApHI 10, 1986
Page 4

relative Importance of the many factors considered in ranking sites, the
reduction of all attributes to a single quantitative scale depends, in this
application, upon the value tradeoffs made by DOE staff. In addition to the
sensitivity analysis they conducted, the Department decision makers might have
found it beneficial in the selection of objectives and in weighing pre-closure
factors to draw on value Judgments from a variety of sources outside the DOE.

On the basis of the Board's review of the application to a single site, it
appears that the expected total repository and transportation costs will have
a major, if not controlling, effect on the rankings under pre-closure
factors. This recognition of the heavy dependence on cost reinforces the
Board's judgment that the principal usefulness of the multi-attribute utility
method is to illuminate the factors involved in a decision, rather than to
make the decision Itself.

IV. CONCLUSIONS

In addition to the multi -attribute decision analysis, there are other
factors that must be taken into account in the final decision to select three
sites for characterization. These include the diversity of rock types re-
quired by the Nuclear Waste Policy- Act of 1982, judgments about the ability to
license successfully a site including considerations of waste package perfor-
mance, and judgments about the best set of sites to choose to assure the ■
highest likelihood of a licensable site emerging from the characterization
process.

When the Board conriented on the Draft Environmental Assessments a year
ago, it expressed strong reservations about the methods used by DOE to select
sites for characterization. The Department has made substantial progress
since then. As stated in the Board's October 10, 1985, report, "...our
concern about the appropriateness of the methodology, as expressed in our
April 26, 1985, critique of Chapter 7 of the December, 1984, Draft Environ-
mental Assessments, has now been addressed." — DOC has now selected a decision-
aiding method that the Board believes is appropriate to the complexity and
technical uncertainties of the decision the Department faces in choosing sites
to characterize.

Although the Board has not seen the final version of the CSRR, those parts
of the draft It has reviewed Include substantial documentation of the site-
ranking method and the way it has been implemented. On the basis of dis-
cussions with D0£ staff, we anticipate satisfactory responses to our remaining
concerns about documentation in the final CSRR.

In its review of the Implementation of the site-ranking methodology, then,
the Board finds much to praise. It is Important to note that the Board

449

Mr. Ben C. Rusche
April 10, 1986
Page 5

reviewed neither the data In the draft EAs nor the application of the
procedures In which sites were scored and value tradeoffs were assessed.
Moreover, DOE did not take the Board's advice, offered twice In writing, to
Involve outside groups of experts In the site-ranking process beyond this
review of the implementation of the methodology by the Board. The Board has
seen nothing to indicate bias in the Department's implementation of the
methodology and recognizes the value of the DOE sensitivity analysis, but the
lack of external input in technical and value judgments could raise concerns
about bias.

Despite the limitations in the scope of the Board's review, we believe the
methods used in the CSRR provide a sound analytical basis for aiding the site
characterization decision. The Board comnends the Department of Energy for
taking the time and devoting the resources to identify and apply a comprehen-
sive decision-aiding methodology. We believe that the methodology the
Department has selected represents "state of the art" and is adequate and
appropriate for this purpose. We compliment DOE on Its care and diligence in
implementing the site-ranking methodology, and encourage the Department to
build on the experience It has gained as it continues the search for a
geologic repository.

Sincerely,

Frank L. Parker
Chairman, Board on
Radioactive Waste Management

FLP:jc

450

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 3c:

The States and Indian Tribes have charged that DOE
manipulated data to come up with its selection of
the Hanford, Yucca Mountain, and Deaf Smith sites
characterization. How do you respond to these
charges?

ANSWER:

The States and Indian Tribes charges are comparable
to those made in the House subcommittee staff
memorandum entitled "Preliminary Results of Staff
Investigation Into DOE's Selection of Three Sites
for Characterization as the Nation's First
Repository for High-Level Radioactive Waste." The
DOE has prepared a detailed response to this
memorandum documented as a letter to Congressmen
Markey, Swift, and Wyden dated February 18, 1987.
The response letter is included as an attachment.

Very briefly, we believe the evidence presented in
the response letter demonstrates that the charges
of manipulating data to come up with a
predetermined set of sites are without foundation.

451

Department of Energy

Washinglon. DC 20585

FEB 1 8 19a)

Honorable Edward J. Markey
House of Representatives
Washington, D.C. 20515

Dear Mr. Markey:

We have carefully reviewed your letter of October 20, 1986, and
the accompanying staff memorandum entitled "Preliminary Results
of Staff investigation into DOE's Selection of Three Sites for
Characterization as the Nation's First Repository for High-Level
Radioactive Waste." While we appreciate your interest in under-
standing and analyzing the decision process, we are dismayed by
the conments made in these documents. After careful analysis, we
conclude that, almost without exception, the findings of your
staff's investigation are without basis.

The enclosed paper presents a point-by-point response to the
principal points made in your letter and your staff's memorandum.
I would like to summarize the principal conclusions here and
attempt to clarify the role of the multiattribute utility
analysis (MUA) in our decision since there is a consistent
misinterpretation of its role in the staff memorandum.

Perhaps most important, we believe that you have not presented
any credible evidence to siibstantiate criticisms that the
Department of Energy (DOE) distorted and manipulated the MUA to
produce a desired result — because none exists. No technical
results whatever of that analysis were changed to promote or
downgrade any site. Furthermore, state-of-the-art techniques
were used to minimize the potential for conscious or unconscious
biases to affect the results, and the Board on Radioactive Waste
Management of the National Academy of Sciences (BRWM/NAS) stated
that they found no evidence of bias in DOE's implementation of
the methodology.

With respect to the comment that DOE edited the methodology and
recommendation reports to suppress infcrsation unfavorable to the
Hanford site or to the Deaf Smith site, we believe that the best
measure of DOE's actions is not what passages were deleted from
drafts duri.^g editing, but rather what passages remained in the
final published reports. Our review of the language you indicate
was removed from early drafts shows that in most cases language
very similar in substa.nce — in some cases verbatim langxiage —
was* retained in the final reports. The remaining deletions were
Tiade for legitimate editorial reasons, most often to eliminate
redundancies. Soma delations vere also made to remove inappro-
priate judgments, for example, about which sites to characterize

452

-2-

or about th« significanca of differences among the sites, that
overstepped the bounds of the decision-aiding role of the MUA.
An excellent example of such an inappropriate judgment is found
in the quota that appears at the top of page three of your letter
of October 20.

Finally, we disagree that rock-type diversity vas the sole basis
for our selection of Hanford, and that wa should have included
that factor explicitly in the methodology. Diversity vas clearly
an important consideration. Indeed, the Nuclear Waste Policy Act
of 1982 (the Act) itself requires DOE to recommend sites for
characterization in different rock types "to the extent
practicable," and diversity provides a number of important
benefits, including insurance against the possibility of common-
mode problems that could affect all sites in a given rock type.
But diversity was not the only consideration. As the MUA
indicates, Hanford is expected to have excellent postclosure
perforTnance, and the lowest adverse impacts on the community and
environment in the vicinity of the site.

Because rock-type diversity is a property of portfolios of sites,
while the MUA compared sites in terms of their individual
characteristics, diversity could not have simply been "included
in the methodslogy, so it could have been considered and weighted
along with the other factors," as you suggest. A rigorous,
formal evaluation of the effects of diversity would have required
an additional, more complex form of analysis involving highly
speculative judgments about such things as future licensing
actions. Instead, we considered the portfolio effects qualita-
tively, as is commonly done in other portfolio-type problems.
Such an approach is entirely consistent with the Act and the DOE
siting guidelines.

In addition to responding to these specific comments, I would like
to clarify a misunderstanding that permeates both your letter and
your staff's analysis and that leads to many erroneous con-
clusions and inferences. This misunderstanding relates to the
capability and role of the MUA in the decision process. That you
view the MUA to be something that it is not is revealed by
references in your letter to the MUA as a "more rigorous
selection methcdology, " and in the statement that "DOE distorted
and disregarded its own scienrific analysis in order to support
selection of the Hanford, Washington, site and to avoid selection
of the Richton Dome, Mississippi, site." These statements
indicate a belief that the MUA is capable of providing a
"scientific" ranking of the five nominated sites — a ranking
somehow devoid of judgment — which should then be used as the
sole basis for selecting three for characterization. Without
this fundamental premise, there are no logical grounds for
criticizing DOE for not selecting t.'ia three top-ranked sites
idancif iad'by tha MUA, or for inferring that DOE "ignored" the

453

-3-

results of the MUA. Indeed, without that jsremise, there is no
incentive for DOE to engage in all of the "manipulations" and
"distortions" you believe were undertaken to promote Hanford into
the top three sites.

This basic premise is false. The methodology was never intended
or designed to make the decision about which sites to
characterize, only to aid the responsible decision-maker, the
Secretary of Energy, by providing insights about the advantages
and disadvantages of the sites. There was no presumption that
the three sites ranked highest by the MUA should be the three
selected for characterization, and thus no need or incentive to
manipulate the MUA to promote any supposedly favored site into
the top three.

Limiting the role of the MUA in the decision process is appro-
priate for four important reasons. First, as attractive as it
might be to shift the burden of decision to a "scientific
decision methodology" (a phrase used in your staff memo to
describe the MUA), no such methodology exists. As the BRWM/NAS
stated in its review of the MUA, "there is no single, generally
accepted procedure for integrating technical, economic, environ-
mental, socioeconomic, and health and safety issues for ranking
sites." The guidelines do not specify any particular method for
ranking sites. Indeed, the idea of an "objective" numerical
method for "computing" siting decisions was discussed and
rejected in the final decision about the guidelines. We could
find no support in the technical community for such a method and
were unable to determine a framework that would be sufficiently
complete to eliminate the exercise of judgment on the part of
Federal officials who make the siting decisions. In its
April 2, 1984, letters to DOE and the NKC concerning the draft
siting guidelines, the BRWM/NAS said: "The combination of
complexity and uncertainty [in the repository siting problem]
implies that DOE must be accorded substantial discretion to
exercise its best technical judgments in recommending three of
the nominated sites. ..."

Second, the MUA, like any such methodology, involves the simpli-
fication of a complex reality. It is capable of providing only a
partial and approximate accounting of the many factors important
to the site-recommendation decision. Basing siting decisions
solely on the numerical results of an unavoidably limited formal
analysis would be improper. These are decisions about real sites
that affect unique communities and people, not about mathematical
abstractions. No amount of analysis would relieve EXDE of the
ultimate responsibility to make its decision based on considera-
tion of the full range of data and information in the Environ-
mental Assessments (EAs) .

454

-4-

Third, the significance of the aggregate ranking produced by the
methodology must be tempered by an appreciation of the relatively
limited data available before characterization. For example, the
cost estimates used in the MUA are based on current system
designs that may change significantly as a result of the informa-
tion gained during site characterization and of later decisions
about the overall waste-management system (e.g., construction of
an MBS) . A geologic repository is a f irst-of-its-kind engi-
neering task, and it is wise to be modest about our ability to
predict the ultimate design that will emerge at the end of the
licensing process (also a first-of-its-kind enterprise) . The
range of uncertainty on costs incorporated in the MUA does not
include uncertainty about system design, only the types of
uncertainties inherent in any large construction project with a
given design. Uncertainties not accounted for in the MUA, such
as the possibility of as-yet-unidentified factors, may ultimately
overshadow current estimates of site differences.

Finally, any methodology for ranking sites based on their
individual attributes would be unable to fully take account of
the important factor of rock-type diversity, which is an
attribute of sets of sites rather than of individual sites. As
discussed earlier and in the enclosure to this letter, there is
no a priori reason for concluding that the three sites that rank
at the top when the sites are considered individually would make
up the best set of three for characterization when diver.>;ity is
taken into account. Thus there are no logical grounds for
concluding that failure to select the top-ranked three sites is
prima facie evidence of flawed decisionmaking.

In s\immary, because of the limitations of this or of any formal
methodology that might be used to model the key factors in a
decision problem, it is necessary to supplement the insights
gained from the methodology with professional escperience and
judgment. That the methodology must be decision-aiding and not
decision-making has been stressed by DOE from the beginning and
was unequivocally endorsed by the BRWM/NAS in its review letters
to DOE. Since the MUA was never intended or designed to make the
decision, all of the criticisms based on the incorrect premise
that it was, are unfounded.

Despite its limitations, the application of a formal methodology
as part of the decision process provided a number of important
advantages. Unlike the simpler aerhods used to rank the sites in
the draft EAs, the MUA produced quantitative estimates of the
performance of each site on each siting factor specified in the
guidelines. Combining these estimates with the escplicit value
judgments required by the analysis gave valuable insighrs into
the imporrance of the differences among the sitas. For example,
it shewed t.hat all of the sites are expected to release radio-
acrive materials at levels that are very far below the levels
allowed by EPA standards, and that the differences becween the
sites are not significant.

455

-5-

Furtheraore, the MUA makes the process of analysis explicit and
open to review. It clearly separates the technical judgments
about the performance and impacts of a repository at the various
sites from value judgments about the desirability of those
possible impacts, and makes both types of judgments explicit.
This makes it easy for readers to determine which judgments are
important to the conclusions of the analysis and which are not,
and allows them to test the implications of different value
judgments and technical judgments. DOE does not expect that
everyone will agree with all of the assumptions and judgments
included In the analysis. However, DOE believes that it is very
valuable to have those assumptions and judgments stated clearly
and precisely, so that others can evaluate them and see whether
their own judgments would lead to significantly different
conclusions.

In conclusion, the responses we have provided here and in the
enclosed paper demonstrate that all comments related to
developing the MUA after having fixed immutably on a predeter-
mined set of sites, as well as comments related to manipulation
of results, are without foundation. We do not believe that the
open and well-documented process by which DOE has approached the
selection of sites for characterization should damage the
credibility of the repository program. Quite the contrary, the
fact that the Subcommittee staff was able to critically analyze
the decision demonstrates the unprecedented openness of the
decision process. For these reasons, we must reject your
statement that the site-recommendation decision is "seriously
flawed and totally unsupportable. "

Further, we believe any additional analysis beyond what was done
to support the May 28 decisions would not be cost-effective. We
have seen nothing to indicate that application of a formal
portfolio analysis would reveal important new insights that would
warrant reconsideration of our decision. We believe that the
best way to enhance credibility at this time is to get on with
the important job of gathering detailed data about the three
sites, as mandated by the Act, rather than to continue to analyze
the limited data that are available before characterization.

I would welcome the opportunity to discuss these points with you
further at your convenience.

Sincerely,

Ben C. Rusche, Diractor
Office of Civilian Radioactive
Waste Management

Znclcsura

456

Department of Energy

Washington. DC 20585

FEB 1 8 1987

Honorable Ron Wyden
House of Representatives
Washington, D.C. 20515

Dear Mr. Wyden:

We have carefully reviewed your letter of October 20, 1986, and
the accompanying staff memorandum entitled "Preliminary Results
of Staff Investigation into DOE's Selection of Three Sites for
Characterization as the Nation's First Repository for High-Level
Radioactive Waste." While we appreciate your interest in under-
standing and analyzing the decision process, we are dismayed by
the comments made in these documents. After careful analysis, we
conclude that, almost without exception, the findings of your
staff's investigation are without basis.

Perhaps most important, we believe that you have not presented
any credible evidence to substantiate criticisms that the
Department of Energy (DOE) distorted and manipulated the MUA to
produce a desired result — because none exists. No technical
results whatever of that analysis were changed to promcce or
downgrade any site. Furthermore, state-of-the-art techniques
were used to minimize the potential for conscious or unconscious
biases to affect the results, and the Board on Radioactive Waste
Management of the National Academy of Sciences (BRWM/NAS) stated
that they found no evidence of bias in DOE's implementation of
the methodology.

With respect to the comment that DOE edited the methodology and
recommendation reports to suppress information unfavorable to the
Hanford site or to the Deaf Smith site, we believe that the best
measure of DOE's actions is not what passages were deleted from
drafts during editing, but rather what passages remained in the
final published reports. Our review of the language you indicate
was removed from early drafts shows that in most cases language
ver'/ similar in substance — in some cases verbatim lang'aage —
was' retained in the final reports. The remaining deletions were
aade for legitimate editorial reasons, most often to eliniir.ata
redundancies. Some deletions were also made to remove inappro-
priate judgments, for example, about which sites to characterize

457

-2-

or about the significance of differences among the sites, that
overstepped the bounds of the decision-aiding role of the MUA.
An excellent example of such an inappropriate judgment is found
in the quote that appears at the top of page three of your letter
of October 20.

Finally, we disagree that rock-type diversity was the sole basis
for our selection of Hanford, and that we should have included
that factor explicitly in the methodology. Diversity was clearly
an important consideration. Indeed, the Nuclear Waste Policy Act
of 1982 (the Act) itself requires DOZ to recoHwend sites for
characterization in different rocJc types "to the extent
practicable,"* and diversity provides a number of important
benefits, including insurance against the possibility of common-
mode problems that could affect all sites in a given rock type.
But diversity was not the only consideration. As the MUA
indicates, Hanford is expected to have excellent postclosure
performance, and the lowest adverse impacts on the community and
environment in the vicinity of the site.

Because rock-type diversity is a property of portfolios of sites,
while the MUA compared sites in terms of their individual
characteristics, diversity could not have simply been "included
in the methodology, so it could have been considered and weighted
along with the other factors," as you suggest. A rigorous,
formal evaluation of the effects of diversity would have required
an additional, more complex form of analysis involving highly
speculative judgments about such things as future licensing
actions. Instead, we considered the portfolio effects qualita-
tively, as is commonly done in other portfolio-type problems.
Such an approach is entirely consistent with the Act and the DOE
siting guidelines.

In addition to responding to these specific comments, I would like
to clarify a misunderstanding that permeates both your letter and
your staff's analysis and that leads to many erroneous con-
clusions and inferences. This misunderstanding relates to the
capability and role of the MUA in the decision process. That you
view the MUA to be something that it is not is revealed by
references in your letter to the MUA as a "more rigorous
selection methodology," and in the statement that "DOE distorted
and disregarded its own scientific analysis in order to support
selection of the Hanford, Washington, site and to avoid selection
of the Richton Dome, Mississippi, site." These statements
indicate a belief that the MUA is capable of providing a
"scientific" ranking of the five nominated sites — a ranking
somehow devoid of judgment — which should then be used as the
sole basis for selecting three for characterization. Without
this fundamental premise, there are no logical grounds for
criticizing DOE for net selecting the three too-ranked sitss
identified by the MUA, or for inferring that DOE "ignored" the

458

-3-

results of the KtJA. Indeed, without that premise, there is no
incentive for DOE to engage in all of the "manipulations" and
"distortions" you believe were undertaken to promote Hanford into
the top three sites.

This basic premise is false. The methodology was never intended
or designed to make the decision about which sites to
characterize, only to aid the responsible decision-maker, the
Secretary of Enargy, by providing insights about the advantages
and d-isadvantages of the sites. There was no presumption that
the three sites ramked highest by the MUA should be the three
selected for characterization, and thus no need or incentive to
manipulate the MUA to promote any supposedly favored site into
the top three.

Limiting the role of the MUA in the decision process is appro-
priate for four important reasons. First, as attractive as it
might be to shift the burden of decision to a "scientific
decision methodology" (a phrase used in your staff memo to
describe the MUA), no such methodology exists. As the BRWM/NAS
stated in its review of the MUA, "there is no single, generally
accepted procedure for integrating technical, economic, environ-
mental, socioeconomic, and health and safety issues for ranking
sites." The guidelines do not specify any particular method for
ranking sites. Indeed, the idea of an "objective" numerical
method for "computing" siting decisions was discussed and
rejected in the final decision about the guidelines. We could
find no support in the technical community for such a method and
were unable to determine a framework that would be sufficiently
complete to eliminate the exercise of judgment on the part of
Federal officials who make the siting decisions. In its
April 2, 1984, letters to DOE and the NRC concerning the draft
siting guidelines, the BRWM/NAS said: "The combination of
complexity and uncertainty [in the repository siting problem]
implies that DOE must be accorded stibstar.tial discretion to
exercise its best technical judgments in recommending three of
the nominated sites. ..."

Second, the MUA, like any such methodology, involves the simpli-
fication of a complex reality. It is capable of providing only a
partial and approximate accounting of the many factors important
to the site-recommendation decision. Basing siting decisions
solely on the numerical results of an unavoidably limited formal
analysis would be improper. These are decisions about real sites
that affect unique communities and people, net about mathematical
abstractions. No amount of analysis would relieve DOE of the
ultimate responsibility to make its decision based on considera-
tion of the full range of data and inforaation in the Environ-
mental Assessments (EAs) .

459

Third, the significance of the aggregate ranking produced by the
methodology must be tempered by an appreciation of the relatively
limited data available before characterization. For example, the
cost estimates used in the MUA are based on current system
designs that may change significantly as a result of the informa-
tion gained during site characterization and of later decisions
about the overall waste-management system (e.g., construction of
an MRS) . A geologic repository is a f irst-of-its-lcind engi-
neering task, and it is wise to be modest about our ability to
predict the ultimate design that will emerge at the end of the
licensing process (also a f irst-of-its-kind enterprise) . The
range of uncertainty on costs incorporated in the MUA does not
include uncertainty about system design, only the types of
uncertainties inherent in any large construction project with a
given design. Uncertainties not accounted for in the MUA, such
as the possibility of as-yet-unidentified factors, may ultimately
overshadow current estimates of site differences.

Finally, any methodology for ranking sites based on their
individual attributes would be unable to fully take account of
the important factor of rock-type diversity, which is an
attribute of sets of sites rather than of individual sites. As
discussed earlier and in the enclosure to this letter, there is
no a priori reason for concluding that the three sites that rank
at the top when the sites are considered individually would make
up the best set of three for characterization when diversity is
taken into account. Thus there are no logical grounds for
concluding that failure to select the top-ranked three sites is
prima facie evidence of flawed decisionmaking.

In svLsunary, because of the limitations of this or of any formal
methodology that might be used to model the key factors in a
decision problem, it is necessary to supplement the insights
gained from the methodology with professional experience and
judgment. That the methodology must be decision-aiding and not
decision-making has been stressed by DOE from the beginning and
was unequivocally endorsed by the BRWM/NAS in its review letters
to DOE. Since the MUA was never intended or designed to make the
decision, all of the criticisms based on the incorrect premise
that it was, are unfounded.

Despite its limitations, the application of a formal methodology
as part of tr.e decision process provided a number of important
advantages. Unlike the simpler methods used to ra.nk the sites in
the draft EAs, the MUA produced quantitative estimates of the
performance of each site on each siting factor specified in the
guidelines. Combining these estimatas with the explicit value
judgments required by the analysis gave valuable insights into
the importance of the differences among the sites. For example,
it shewed t.hat all cf the sites are expected to release radio-
active materials at levels that are very far below the levels
allowed by EPA standards, and that the diffarencas between the
sitas are not significant.

460

-5-

Furthermore, the MUA makes the process of analysis explicit and
open to review. It clearly separates the technical judgments
about the performance and impacts of a repository at the various
sites from value judgments about the desirability of those
possible impacts, and makes both types of judgments explicit.
This makes it easy for readers to determine which judgments are
important to the conclusions of the analysis and which are not,
and allows them to test the implications of different value
judgments and technical judgments. DOE does not expect that
everyone will agree with all of the assumptions and judgments
included in the analysis. However, DOE believes that it is very
valuable to have those assumptions and judgments stated clearly
and precisely, so that others can evaluate them and see whether
their own judgments would lead to significantly different
conclusions.

In conclusion, the responses we have provided here and in the
enclosed paper demonstrate that all comments related to
developing the MUA after having fixed immutably on a predeter-
mined set of sites, as well as comments related to manipulation
of results, are without foundation. We do not believe that the
open and well-dociimented process by which DOE has approached the
selection of sites for characterization should damage the
credibility of the repository program. Quite the contrary, the
fact that the Subcommittee staff was able to critically analyze
the decision demonstrates the unprecedented openness of the
decision process. For these reasons, we must reject your
statement that the site-recommendation decision is "seriously
flawed and totally unsupportable. "

I would welcome the opportunity to discuss these points with you
further at your convenience.

Sincerely,

3-c/K.Si—

Ben C. Rusche, Director
Office of Civilian Radioactive
Haste Management

Enclosure

461

Department of Energy

Washington. DC 20585

FEB i 8 1987

Honorable Al Swift
House of Representatives
Washington, D.C. 20515

Dear Mr. Swift:

We have carefully reviewed your letter of October 20, 1986, and
the accompanying staff memorandum entitled "Preliminary Results
of Staff Investigation into DOE's Selection of Three Sites for
Characterization as the Nation's First Repository for High-Level
Radioactive Waste." Whila we appreciate your interest in under-
standing and analyzing the decision process, we are dismayed by
the comments made in these documents. After careful analysis, we
conclude that, almost without exception, the findings of your
staff's investigation are without basis.

Perhaps most important, we believe that you have not presented ■
any credible evidence to substantiate criticisms that the
Department of Energy (DOE) distorted and manipulated the MUA to
produce a desired result — because none exists. No technical
results whatever of that analysis were changed to promote or
downgrade any site. Furthermore, state-of-the-art techniques
were used to minimize the potential for conscious or unconscious
biases to affect the results, and the Board on Radioactive Waste
Management of the National Academy of Sciences (BRWM/NAS) stated
that they found no evidence of bias in DOE's implementation of
the methodology.

with respect to the comment that DOE edited the methodology and
recommendation reports to suppress information unfavorable to the
Hanford sits or to the Deaf Smith site, we believe that the best
aeasure of DOE's actions is not what passages were deleted from
drafts during editing, but rather what passages remained in the
final published reports. Our review of the language you indicate
was removed from early drafts shows that in most cases language
very similar in substance — in some cases verbatim language —
was retained in the final reports. The remaining deletions were
:nade for legitima-a editorial reasons, most often to eliminate
redundancies. Some deletions were also made to remove inappro-
priate judgments, for example, about which sites to characterize

462

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Finally, we disagree that rocJc-type diversity was the sole basis
for our selection of Hanford, and that we should have included
that factor explicitly in the methodology. Diversity was clearly
an important consideration. Indeed, the Nuclear Waste Policy Act
of 1962 (the Act) itself requires DOE to recommend sites for
characterization in different roclc types "to the extent
practicable," and diversity provides a number of important
benefits, including insurance against the possibility of common-
mode problems that could affect all sites in a given rock type.
But diversity was not the only consideration. As the MUA
indicates, Hanford is expected to have excellent postclosure
performance, and the lowest adverse impacts on the community and
environment in the vicinity of the site.

Because rock-type diversity is a property of portfolios of sites,
while the MUA compared sites in terms of their individual
characteristics, diversity could not have simply been "included
in the methodology, so it could have been considered and weighted
along with the other factors," as you suggest. A rigorous,
formal evaluation of the effects of diversity would have required
an additional, more complex form of analysis involving highly
speculative judgments about such things as future licensing
actions. Instead, we considered the portfolio effects qualita-
tively, as is commonly done in other portfolio-type problems.
Such an approach is entirely consistent with the Act and the DOE
siting guidelines.

In addition to responding to these specific comments, I would like
to clarify a misunderstanding that permeates both your letter and
your staff's analysis and that leads to many erroneous con-
clusions and inferences. This misunderstanding relates to the
capability and role of the MUA in the decision process. That you
view the MUA to be scmething that it is not is revealed by
references in your letter to the MUA as a "more rigorous
selection methodology," and in the statement that "DOE distorted
and disregarded its own scientific analysis in order to support
selection of the Hanford, Washington, site and to avoid selection
of the Richton Dome, Mississippi, site." These statements
indicate a belief that the MUA is capable of providing a
"scientific" ranking of the five nominated sites — a ranki.ng
somehow devoid of judgment — which should then be used as the
sole basis for selecting three for characterization. Without
this fundamental premise, there are no logical grounds for
criticizing DOE for noz selecting the three top-ranked sites
identified by the MUA, or for inferring that DOE "ignored" the

463

-3-

results of the MUA. Indeed, without that premise, there is no
incentive for DOE to engage in all of the "manipulations" and
"distortions" you believe were undertaken to promote Hanford into
the top three sites.

This basic premise is false. The methodology was never intended
or designed to make the decision eJsout which sites to
characterize, only to aid the responsible decision-maker, the
Secretary of Energy, by providing insights about the advantages
and disadvantages of the sites. There was no presumption that
the three sites ranked highest by the MUA should be the three
selected for characterization, and thus no need or incentive to
manipulate the MUA to promote any supposedly favored site into
the top three.

Limiting the role of the MUA in the decision process is appro-
priate for four important reasons. First, as attractive as it
might be to shift the burden of decision to a "scientific
decision methodology" (a phrase used in your staff memo to
describe the MUA) , no such methodology exists. As the BRWM/NAS
stated in its review of the MUA, "there is no single', generally
accepted procedure for integrating technical, economic, environ-
mental, socioeconomic, and health and safety issues for ranking
sites." The guidelines do not specify any particular method for
ranking sites. Indeed, the idea of an "objective" numerical
method for "computing" siting decisions was discussed and
rejected in the final decision about the guidelines. We could
find no support in the technical community for such a method and
were unable to determine a framework that would be sufficiently
complete to eliminate the exercise of judgment on the part of
Federal officials who make the siting decisions. In its
April 2, 1984, letters to DOE and the NKC concerning the draft
siting guidelines, the BRWM/NAS said: "The combination of
complexity and uncertainty [in the repository siting problem]
implies that DOE must be accorded sxibstantial discretion to
exercise its best technical judgments in recommending three of
the nominated sites. ..."

Second, the MUA, like any such methodology, involves the simpli-
fication of a complex reality. It is capable of providing only a
partial and approximate accounting of the many factors important
to the site-recommendation decision. Basing siting decisions
solely en the numerical results of an unavoidably limited formal
analysis would be improper. These are decisions about real sites
that affect unique communities and people, not about mathematical
abstractions. No amount of analysis would relieve DOE cf the
ultimate responsibility to make its decision based on considera-
tion of the full range of data and information in the Environ-
mental Assessments (EAs) .

464

Third, the significance of the aggregate ranking produced by the
methodology must be tempered by an appreciation of the relatively
limited data available before characterization. For example, the
cost estimates used in the MUA are based on current system
designs that may change significantly as a result of the informa-
tion gained during site characterization and of later decisions
about the overall waste-management system (e.g. , construction of
an MRS) . A geologic repository is a first-of-its-kind engi-
neering task, and it is wise to be modest about our aOaility to
predict the ultimate design that will emerge at the end of the
licensing process (also a f irst-of-its-kind enterprise) . The
range of uncertainty on costs incorporated in the MUA does not
include uncertainty about system design, only the types of
uncertainties inherent in any large construction project with a
given design. Uncertainties not accounted for in the MUA, such
as the possibility of as-yet-unidentified factors, may ultimately
overshadow current estimates of site differences.

Finally, any methodology for ranking sites based on their
individual attributes would be unable to fully take account of
the important factor of rock-type diversity, which is an
attribute of sets of sites rather than of individual sites. As
discussed earlier and in the enclosure to this letter, there is
no a priori reason for concluding that the three sites that rank
at the top when the sites are considered individually would make
up the best set of three for characterization when diversity is
taken into account. Thus there are no logical grounds for
concluding that failure to select the top-ranked three sites is
prima facie evidence of flawed decisionmaking.

In siimmary, because of the limitations of this or of any formal
methodology that might be used to model the key factors in a
decision problem, it is necessary to supplement the insights
gained from the methodology with professional experience and
judgment. That the methodology must be decision-aiding and not
decision-making has been stressed by DOE from the beginning and
was unequivocally endorsed by the BRWM/NAS in its review letters
to DOE. Since the MUA was never intended or designed to make the
decision, all of the criticisms based on the incorrect premise
that it was, are unfounded.

Despite its limitations, the application of a formal methodology
as part of the decision process provided a number of important
advantages. Unlike the simpler methods used to rank the sites in
the draft EAs, the MUA produced quantitative estimates of the
performance of each site on each siting factor specified in the
guidelines. Combining these estimates with the explicit value
judgments required by the analysis gave valuable insights into
rhe izpcr^ance of the differences among the sites. For example,
it showed that all of rhe sites are expected to release radio-
active materials at levels that are very far below the levels
allowed by EPA standards, and that the differences be-ween the
sites are not significant.

465

-5-

Further, we believe any additional analysis beyond what was done
to support the May 28 decisions would not be cost-effective. We
have seen nothing to indicate that application of a foraal
portfolio analysis would reveal important new insights that would
warrant reconsideration of our decision. We believe that the
best way to enhance credibility at this time is to get on with
the important job of gathering detailed data about the three
sites, as mandated by the Act, rather than to continue to analyze
the limited data that are available before characterization.

I would welcome the opportunity to discuss these points with you
further at your convenience.

Sincerely,

Ben C. Rusche, Director
Office of Civilian Radioactive
Waste .Management

Enclosure

466

ENCLOSURE

Comment 1: DOE deliberately misled the Congress as to the
existence of documents.

DOE did not deliberately mislead the Subcommittee on Energy
Conservation and Power as to the existence of draft working
doc"uments of either the methodology report or the recommendation
report. DOE did not retain working drafts in its general office
files. Such a procedure is routine and consistent with DOE
directives not to retain such materials. In some cases, working
drafts of these documents were retained in the personal files of
individuals intimately involved with writing or reviewing these
documents. All retained documents, whether in official or
personal files, were made readily available for the perasal of
the Subcommittee staff and, for its convenience, were categorized
and filed at one central location at DOE.

Comment 2 ; DOE systematically and deliberately distorted,
suppressed, and manipulated its own scientific data and analysis
in an effort to promote the Hanford site and to downgrade the
Richton Dome site.

The statement that DOE systematically distorted and manipulated
data, that is, technical and value judgments, in working drafts
of the methodology report is false. No technical results
whatsoever were changed to promote the Kanford site or downgrade
the Richton Dome site or any site for that matter. To check this
statement, the Subcommittee is invited to compare data contained
in the March 17, 1986, submittal to the Board on Radioactive
Waste Management of the National Academy of Sciences (BRWM/NAS)
with data in the final methodology report. The estimates of
preclosure impacts for the Richton Dome site, for example, are
exactly the same in the two documents (cf. Table 4-9 in the
March 17 submittal with Table 4-8 in the final methodology
report) .

The Subcommittee further contends that the fact that the prepara-
tion of the methodology and recommendation reports overlapped to
some degree is evidence of wrongdoing. We disagree. The
methodology report was in large measure complete — certainly the
major insights had been communicated to the Director, OCRWM — by
the time the first meeting discussing the need for the recom-
mendation report was held on April 4, 1986. In any case, since
the methodoiccy was never intended or designed to make the
decision, we do not regard the parallel preparation of the two
doc'-iments as irregular.

Irrespective of the timing issue, the central question is
whether, by deletions, DOE suppressed information about the
estimated deficiencies of the Hanfcrd site. We submit that a
truer, more accurate measure of whether inforr:ation was
suppressed is not what passages were deleted during the routine

467

editing process but rather what passages remained after that
process. The following passages from the final methodology
report demonstrate clearly that comments related to suppressing
unfavorable information about any of the sites are unfounded.

Pg. 3-43, first paragraph: "From the relative ranking of the
sites and estimates of uncertainty, it appears that the
postclosure performance of a repository at the Hanford site
would be slightly less favorable than that of a repository at
the salt sites or at the Yucca Mountain site."

Pg. 4-36, fifth paragraph: "... The overall preclosure
ranking is Yucca Mountain, Richton Dome, Deaf Smith, Davis
Canyon, and Hanford. In terms of equivalent-consequence
impacts, the difference between Yucca Mountain and Richton is
the equivalent of 1119 million dollars, between Richton Dome
and Deaf Smith 640 million dollars, between Deaf Smith and
Davis Canyon 1127 million dollars, and between Davis Canyon
and Kanford 2552 million dollars."

Pg. 4-37, first paragraph: "... the relative [preclosure]
ranking of sites obtained for the base case is totally
insensitive to any changes in the level of impacts except for
costs. Furthermore, the ranking is insensitive to any
reasonable changes in the value judgments or in the form of
the utility function."

Pg. 5-4, third paragraph: "... certain patterns are clear
and stable under a wide range of assumptions. The Hanford
site is in all cases ranked fifth. ..."

Pg. 5-16, first paragraph: "This ranking [referring to the
overall ranking of Yucca Mountain, Richton Dome, Deaf Smith,
Davis Canyon, and Hanford] is stable except for the most
extreme weightings of postclosure versus preclosure
performance. "

Other sentences stating estimated deficiences of the Hanford site
appear in Chapters 3, 4, and 5 of the final methodology report.

On review of statements like those quoted above.

Dr. Frank L. Parker, Chairman of the BRWM/NAS, in a letter to

Congressman Weaver dated November 6, 1986, stated:

"In view of these summary statements, I cannot possibly agree
with Findings 5, 6, and 7 that state that the MUA was
'distorted,' 'flawed,' and 'contrived,' to place Hanford high
in the list of sites to be characterized."

-2-

468

While it is true that during the course of developing the
methodology report passages were -oth added and deleted from
working drafts, these changes were appropriate because they were
all directed at improving the quality of the report. As in any
writing job, critical reviews of drafts by people other than the
primary authors (i.e., others on the MUA team and E>OE management)
identified numerous opportunities for improving readability by
clarifying, shuffling, reorganizing, and, in soae instances,
deleting text. Specifically, DOE deleted passages to eliminate:
1) redundancies, 2) unsupported or overstated conclusions,
3) inappropriate value-laden language, and 4) unnecessarily
complex language. The fact that redundancies should be minimized
needs no elaboration. The importance of the other criteria for
deleting text and examples are discussed below.

The quote that appears at the top of page 3 of the Congressional
letter of October 20 provides an example of an unsupported state-
ment that appeared in working drafts of the methodology report.
This paragraph was properly deleted because it could not be
supported by the results of the MUA. Because the MUA compared
the sites on an individual basis rather than as portfolios, it is
not possible to conclude from it alone what set of three sites
should be characterized. In addition, several statements in the
deleted passage contained value-laden remarks, such as a
conclusion that a difference was "substantial." Other examples
of value-laden words that were generally deleted or modified are
"significant" and "reasonable." We believed that value judgments
about the significance of the results were best left to the
Secretary as the decisionmaker and that such judgments should
appear in the recommendation report, not in the MUA. In sum,
this paragraph and similar deleted passages overstepped the
bounds of the role of the decision-aiding methodology.

An example of unnecessarily complex language that was deleted
appears on page\29 of the staff memorandum. The deleted passage
appeared in the conclusions section of Chapter 4, the prsclcsure
analysis of the sites, and concerned the probability for a
significant correlation in total costs among the sites. The
passage was deleted because it seemed out of place inasmuch as
the section was intended as a summary of conclusions. This
detailed, technical point had been covered earlier in the main
text of the chapter.

In summary, the central contention of the Congressional letter
and staff analysis is false. A cursory comparison of language in
early drafts of the aethcdology report against the final report
shews that, in most cases, verbatim language, or language very
similar in substance, was retained. Delations were made for
proper and legitimate reasons. Such facts lend no credibility to
the Subccmjnittee ' s comjnents related to tailoring the final
methcdoloc/ reoort to suit a oredetermined choice of sites.

469

Comaent 3 : DOE biased weighting factors in the >fUA to promote
the selection of the Hanford site.

This comment is without foundation. In fact, great care was
taken to safeguard against bias and manipulation of the nethod-
ology. First, by judicious selection of people, DOE ensured that
no individual providing input to the methodology had any profes-
sional or economic incentives for the selection or rejection of a
particular site. All judgmental inputs were the joint responsi-
bility of many individuals, thereby diluting the influence of any
single individual and creating a situation where individual bias
would be apparent through comparisons across individuals.
Second, care was taken to maintain separation between individuals
making scientific judgments (e.g., probabilities of disruptive
scenarios) and those making policy or value judgments (e.g. ,
weighting factors) . Such a division of labor is recommended by
the National Academy of Sciences* and in the professional
decision-analysis literature.

Third, formal state-of-the-art assessment techniques designed to
minimize bias were used to obtain inputs to the methodology.
These assessments were highly detailed and disaggregated, so much
so that a computer was required to aggregate and analyze the
implications of individual assessments. As a consequence, at tha
time at which the assessments were made, the implications for
overall rankings were very difficult for the individuals
providing the judgments to determine. Finally, all judgments
were required to be supported by an explicit logic. Particularly
controversial judgments, such as value tradeoffs between dollars
and fatalities, were compared whenever possible with the values
recommended for or implied by other Federal-agency decisions.

Thus, while it is true that an individual biased toward or
against a site might have an idea how to alter any given judgment
to manipulate results, the above safeguards would minimize the
effect as follows:

The requirement that all judgments be justified in terms
of logic and information in the Environmental Assessments
(EAs) limits the extent to which any input could be
successfully biased.

- Due to the comple::ity of the MUA model it would be

extremely difficult for a participant to know which of his
inputs, if biased, would have an effect on conclusions.

•National Research Council, 1983. Risk Assessment in the Federal
Gcverr.ment : Managing the Procsss , Coiimissicn on Life Sciences,
Nacicnai Academy of Sciances, Washingron, D.C.

470

Due to the extensive opportunities for crosschecking to
identify inconsistencies, any bias in judgments would have
to be kept small to avoid making those biases obvious to
other participants.

- Since any individual provided only a small fraction of the
necessary inputs, that person's ability to influence
conclusions would be small.

Finally, in further support of this position, we note that the
BRWM/NAS said they saw no indication of bias in DOE ' s implementa-
tion of the methodology (see April 10, 1986, letter from
F. Parker to B. Rusche) .

Comment 4: IX)E, in disregard of its own siting guidelines,
arbitrarily disregarded siting factors such as total costs in an
effort to promote the Hanford site.

The available evidence clearly indicates that DOE disregarded no
siting factors in making the site-recommendation decision. To
the contrary, the Secretary considered the full range of results
and insights derived from the application of the methodology, one
of which was that costs dominated whenever individual factors
were aggregated. The result that costs would so completely
dominate the overall rankings of sites was initially surprising
and, frankly, scmewhat unsettling as these costs must be regarded
as very preliminary, at best. This point deserves some
elaboration.

The cost estimates assumed in the methodology report are based on
the current report on the total-system life-cycle costs.
Although this was the best information available at the time,
these estimates were considered more indicative than substantive
because they are based on preconceptual repository designs.
Moreover, these preconceptual designs are for a f irst-of-its-kind
engineering project. These factors suggest a high potential for
major design changes, with concomitant shifts in cost estimates.
For example, cost estimates for the salt sites have assumed
contemporaneous waste emplacement and backfill, thereby
shortening by many years the repository-operations period
relative to the Hanford site. (The long operations period
assumed for the Hanford site is a significant contributor to its
undiscounted cost.) If such an assumption were disallowed by the
NRC, the cost estimates for the salt sites would increase
significantly, perhaps even above those for Hanford. Very recent
cost information still under review in OCRWM confirms the
potential for major swings (upwards of a billion dollars) Lr.
repository costs.

Such basic and unpredictable system-design factors as these led
the Secretary to temper consideration of costs with other
consiieraricns. Discomfort over t.he dominant effect of costs on
the -MUA results was apparently shared by the 3RWM/NAS . In their
letter of Aoril 10, 1936, to the Director, OCP.WM, they stared:

471

"On the basis of the Board's review of the application to a
single site, it appears that the expected total repository
and transportation costs will have a major, if not control-
ling, effect on the rankings under pre-closure factors. This
recognition of the heavy dependence on cost reinforces the
Board ' s judgment that the principal usefulness of the multi-
attribute utility method is to illuminate the factors
involved in a decision, rather than to make the decision
itself."" [Emphasis added.]

Kot only were all factors considered in making the decision, but
they were accorded their proper weight consistent with provisions
of the siting guidelines. The relative importance provisions in
the siting guidelines are qualitative and reflect general
perceived values of society. This is in contrast to the quanti-
tative information required for the HUA. DOE gave operational
meaning to the qualitative guidance by ensuring that value
tradeoffs — judgments of relative importance — be consistent
with a conservative philosophy in which costs are among the least
important and public health and safety are most important. Such
an approach is consistent with the guidance from the BRWM/NAS and
from other independent reviewers of the methodology (see letter
dated December 20, 1985, from M.R. Sampson and R.\Jim, Yakima
Indian Nation, to B. Rusche) .

In summary, all factors specified by the siting guidelines were
considered by the Secretary in making the site-characterization
decision. This position is supported by other outside reviewers
of the methodology and recommendation reports (see pg. 2 of
letter, dated November 6, 1986, from F. Parker to
Congressman J. Weaver) .

Comment 5; DOE deliberately did an incomplete multiattribute
utility analysis for fear that a complete analysis would not
support the selection of the Hanford site.

We discuss here two aspects of this comment: (a) the omission
of explicit consideration of nonfatal health-and-safety impacts
in the MUA, and (b) the decision not to perform an additional
portfolio analysis to take into account rock-type diversity.

Consideration was given to nonfatal health-and-safety impacts in
Section 4.6.4 of the methodology report. As explained in the
report, the effect of including nonfatal impacts would be to give
greater weight to the health-and-safety related objectives
relative to the other objectives. Just such a sensitivity
analysis is described in Chapter 4 of the methodology report (see
Table 4-15) , where it is argued that the inclusion of such
impacts would not change the overall ranking of sites (although
the spread between sites changes) because of the over^vhelning
dominance of costs.

-5-

472

with regard to the judgment not to perform the additional
portfolio analysis needed to consider the effects of rock-type
diversity, we acknowledge that such an analysis might possibly
have provided additional insights about the relative desirability
of portfolios of three sites. As in any formal siting study,
decisions had to be made about what and what not to include in
the formal analysis. It was our judgment that the ex±ra time,
cost, and effort necessary to perform a formal portfolio analysis
was not required to make a responsible decision. A rigorous,
formal evaluation of the effects of diversity would require a
more complex form of analysis involving highly speculative
judgments about such things as future licensing actions.
Instead, we considered the portfolio effects qualitatively, as is
commonly done in other portfolio-type problems. We believe such
an approach is entirely consistent with the Act and the siting
guidelines.

Professor Ralph L. Keeney, who participated in the development of
the MUA, has on his own initiative recently conducted a partial
portfolio analysis.* While we disagree with the conclusions and
recommendations Professor Keeney derives from his new analysis,
we believe it supports the long-standing principle that diversity
should be an important factor in siting. Furthermore, we believe
that the results of the analysis support our conclusion that a
formal portfolio analysis would not yield major new insights that
would lead to a different choice of sites.

Related to this point is the role diversity played in the
decision to select Hanford for characterization. It is clear
from the Congressional letter that this role was misunderstood.
Consideration of the potential benefits of diversity was
certainly a factor in the decision. Although the arguments for
diversity have traditionally been along the lines of avoiding
common-mode failure during the postclosure period, we believe the
potential advantages to be far broader in scope. For example,
characterizing sires in diverse geologic environments increases
the likelihood of being able to consider later in the siting
process a wider range of repository-design alternatives and
innovative ways to ensure compliance with regulatory requirements
than would otherwise be possible. Examples are whether and when
to backfill repository openings and ways to ensure that retriev-
ability requirements can be met.

However, diversity was not the only factor. The facts that there
is no practical differenca in the excellent predicted postclosure
performance of the five sitas and that the preclosure ranking is
doainatad by cosrs were also important. Diversity considerations

*R.L. Keeney, November 1986, "An Analysis of the Portfolio oi
Sites to Characterize for Selecting a Nuclear Repository,"
University of Southern California Cecision Analysis Series.

-7-

473

confirmed that the set of three sites offered on balance the most
advantageous combination of characteristics for successful
development of repositories, as required by the siting

guidelines.

Comment 6 : DOE deliberately ignored advice from the Board on
Radioactive Waste Management of the National Academy of Sciences
in doing the multiattribute utility analysis and in making the
site-recommendation decision.

We address here three parts to this comment: (a) DOE ignored the
BRWM/NAS by allowing the siting guidelines to distort the weights
accorded each siting factor; (b) DOE ignored the BRWM/NAS recom-
mendations involving participation of outside experts; and
(c) DOE ignored consideration of the relative vulnerability of
the accessible environment at each site. DOS did not ignore
these or any of the recommendations of the BRWM/NAS. Rather, DOE
considered all recommendations very carefully, and, in fact, made
many changes to the methodology and recommendation reports in
response to these recommendations. It is true, however, that for
various reasons, DOE decided not to follow all of the recommenda-
tions of the BRWM/NAS regarding the MUA, as explai.ned below.

DOE did not allow the siting guidelines to distort the weights
accorded siting factors in the KUA. The relative importance
provisions in the siting guidelines were interpreted qualitative-
ly, and were reflected in the analysis by ensuring that the
quantitative value tradeoffs required by the MUA were consistent
with a conser/ative philosophy that reflected general values of
society. As discussed above, this did not involve eliminating
costs from the analysis.

With regard to the merits of including outside experts in its
implementation of the methodology, we recognize that the use of
such people might have enhanced the credibility of the process.
DOE decided not to directly involve outside experts in its
implementation of the methodology for the following reasons:

1. DOE recognized from the outset the controversial nature of
some of the judgments required as input to the methodology,
for example, weighting factors. Accordingly, DOE performed
numerous sensitivity analyses to examine how the site evalua-
tions depended on the inputs to the model. These analyses
roughly approximate differences in opinions and values of
different groups and stakeholders interested in repository
siting.

2. DOE staff and consultants were among the best qualified for
providi.ng the t'j'pes of information required by the method-
ology. Further, DOE has the responsibility and the authority
for making these judgments pursuant to the Act.

474

3. Other stakeholders have had several opportunities to
influence the implementation of the methodology, albeit
indirectly, by their involvement in the development of the
siting guidelines and by reviews of the simple ranking
methods presented in the draft EAs. Public-comment periods
and rounds of consultation with interested parties on these
documents did much to influence the specification of both the
siting objectives and the value tradeoffs among objectives
used in the methodology, which are the fundamental building
blocks of the methodology.

4. Pursuant to requests from the public and the Congress, DOE
did elicit an independent review of the methodology and its
application from the BRWM/NAS. While this group said they
were disappointed EXDE did not involve outside experts, they
also said they saw no indication of bias in DOE's implementa-
tion of the methodology.

In view of these factors, DOE did not directly involve all
possible stakeholders. We believe this action balanced the
requirements of the Act for State and public participation in the
siting process against the requirements of the Act to continue to
make timely progress toward repository development. Moreover,
given the extensive sensitivity analyses, we doubt that the
involvement of outside experts would have provided fresh insights
into the MUA.

The last part of the comment concerns the idea that DOE should
have considered the relative vulnerability of the accessible
environment at the various sites. The concept of setting regula-
tory limits for releases of radioactivity to a universally
applied accessible environment rather than for the predicted
consequences of those releases is fundamental to the final
Environmental Protection Agency's rule for disposal of nuclear
waste. This rule was the subject of frequent interactions with
the public and with independent scientific groups, including the
BRWM/NAS, and took almost nine years to develop. A study*
published in April 1983 by a special panel of the BRWM was
critical of the radiation-release limits approach of the then-
proposed EPA rule; the panel advocated instead an individual-dose
limits approach. Although the EPA eventually added an
individual-dose limit to its now-final rule, the release-limits
approach is still the mainstay of the rule. EPA's rationale for
emphasizing estimates of amounts of radioactivity released rather
than individual e.xpcsures is that it avoids highly speculative
predictions of future environmental pathways, behavioral
patterns, and population distributions that determine how

•National Research Council, 1983. A Study of the Isolation
System for Geologic Disposal of Radioactive Wastes. Report of
the Waste Isolation Systems Panel, Board on Radioactive Waste
Management, Commission on Physical Sciences, Mathematics, and
Resources, National Academy of Sciences, Washington, D.C.

-9-

475

releases result in doses received by people. Such an approach
will make demonstrations of compliance with the standards more
straightforward. DOE as well as a special Science Advisory Board
to the EPA generally agreed with these technical aspects of the
standards.

Consistent with past DOE positions and with these regulations,
DOE adopted a postclosure perforaanca measure based on releases,
not health effects. Not surprisingly, the BRWM/NAS disagreed
with the measure, as it is the same as the EPA's. While tha
BRWM/NAS understood the DOE's position on this difficult issue,
it advised that by ignoring current differences in accessible
environments the DOE was ignoring a potentially important site
discriminator. DOE agreed to consider differences in accessible
environments only so far as such consideration was consistent
with the EPA rule, and to do so in the final recommendation
report.

Accordingly, DOE reviewed estimates of releases to the accessible
environments at the various sites and observed that such releases
are not expected to discharge to the Earth's surface or to
surface-water bodies during the next several thousand years (see
pg. 4 of recommendation report) . Thus, differences in accessible
environments among the sites are not discriminating.

Comment 7; DOE deliberately ignored other information, outside
of the multi at tribute utility analysis, potentially damaging to
the Hanford site.

Early in the process of documenting the methodology, DOE
considered whether to include "other information," for example,
risk of disqualification, in what became the methodology report.
Before the decision regarding the inclusion of this information
was made, rough drafts of this "other information" section,
written by DOE consultants, were circulated to a few DOE people
for review. On review of these materials, it became clear that
all factors identified as "other information" had already been or
were being addressed adequately in the EAs, the methodology
report, or the recommendation report. Therefore, to avoid
double-counting, these other factors were not considered again in
a separate chapter.

•10-

476

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 3d:

The States cite an internal DOE memo which
describes DOE's site ranking report as "blatantly-
manipulating" data and forcing the methodology "to
spit out the proper sites." Is this true? Please
respond.

ANSWER:

Several points of clarification should be made in
regard to the referenced "internal DOE memo." The
document was not a memo but rather simply personal
notes on a working draft of the recommendation
report. The author expressed a personal opinion
concerning certain aspects of the working draft.

These points are elaborated on in the letters to
Congressmen Markey, Swift, and Wyden from B.
Rusche, included as an attachment to the response
to question 3c. These concerns were resolved
in the development of the final recommendation
report published as DOE/S-C048.

477

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 3e:

ANSWER:

The States and Indian Tribes cite DOE draft
documents and experts' conclusions that the
Richton Dome site should have been selected over
the Hanford site.

Please explain why Richton Dome was not selected.

— Please explain how Hanford was selected as one
of the top three sites if it was ranked fifth
out of five in the composite analyses for both
preclosure and postclosure performance.

Language in draft documents that recommended the

Richton Dome site was deleted because it was

inappropriate to the purpose and competence of the

multi-attribute utility analysis (MUA) . Frankly,

such conclusions reflect some overzealousness on

the part of the writers. The purpose of the MUA

was to illuminate the relative advantages and

disadvantages of the nominated sites, not to

exclude or include sites for the final set

selected for characterization. This limited role

of the MUA was appropriate because the MUA did not

take into account all of the factors involved in

the decision, most notably the potential benefits

of diversity of rock type. Furthermore, the MUA

provided only an approximate simplification of a

complex reality. For example, uncertainty in the

cost estimates is likely to be greater than

assumed in the MUA.

The basis for the selection of sites for
characterization, including an explanation of why

77-10A 0

87 - 16

478

- 2 -

ANSWER 3e: (Cont'd)

Richton was not selected, is documented in the
Secretary's recommendation report (DOE/S-0048, May
198 5) . Briefly, the recommendation report
explains that, with respect to postclosure
performance, all sites perform exceedingly well
and that they are virtually indistinguishable in
terms of desirability. With respect to preclosure
factors, Deaf Smith is preferred to Richton Dome
in the important category of impacts to the public
and workers at or near the site. Richton Dome's
ranking in several preclosure categories of
concern also tends to vary more than Deaf Smith's.
In addition, the uncertainty and timing of costs
were considered in determining that Deaf Smith was
preferred to Richton Dome for site
characterization.

The choice of the Hanford site, in view of the
results obtained with the MUA, is best explained
in light of the role of the MUA in the site-
recommendation decision.

The site-recommendation decision was one of
selecting a portfolio of sites for
characterization. That is, the decision was to
select a set or portfolio of sites that, as a set,
offered the best prospects for the successful

479

- 3 -

ANSWER 3e: (Cont'd)

development of a repository. The MUA used to
aid the decision evaluated the overall
desirability of individual sites, not the
desirability of the sets of the sites.
Accordingly, the three sites that comprise the
best set for characterization will not necessarily
be the same three sites that rank at the top when
the sites are considered individually once the
portfolio effects are taken into account. For
example, the three salt sites appear most
desirable in terms of expected postclosure
performance. However, selecting three salt sites
would not be prudent, even if it were allowed,
because of the possibility that a problem could be
discovered with salt as a host rock, which could
disqualify all three sites at once.

With this background in mind, we now discuss how
Hanford was selected even though it ranked fifth
in the composite anlaysis. As explained in the
recommendation report, Hanford is expected to
perform extremely well during the postclosure
period, and postclosure performance is the most
important factor of DOE's siting criteria.
Hanford is also expected to perform adequately on
all preclosure factors as well, including, for
example, preclosure radiological safety. When all

480

- 4 -
ANSWER 3e: (Cont'd)

preclosure factors are aggregated, Hanford ranks
fifth. However, this last-place ranking is
governed almost entirely by repository-facility
and transportation costs. The current estimates
of repository and transportation costs are very
uncertain because of uncertainty about the overall
waste-management system and may, therefore, be an
inappropriate basis for siting decisions made at
this time. A geologic repository is a first-of-
its-kind engineering task, and it is wise to be
modest about our ability to predict the ultimate
design that will emerge at the end of the
licensing process, which is also a first-of -its-
kind enterprise. Such considerations led the
Secretary to temper consideration of costs with
other considerations, particularly since costs are
to be among the lead important considerations,
according to the Siting Guidelines.

If costs are not allowed to dominate preclosure
considerations, the selection of Hanford indeed
appears to be quite favorable. Hanford appears to
be the most preferred site in the important
category of local site impacts, in contrast to the
Richton Dome site.

481

- 5 -
ANSWER 3e: (Cont'd)

Diversity of rock type also played a significant
role in the selection of the Hanford site.
Indeed, it is a central theme of the siting
provisions in the Act itself. Although the
arguments for diversity have traditionally been
along the lines of avoiding common-mode failure
during the postclosure period, we believe the
potential advantages to be much more broad in
scope. For example, characterizing sites in
diverse geologic environments increases the
likelihood of being able to consider later in the
siting process a wider range of both repository-
design alternatives and innovative ways to ensure
• compliance with regulatory requirements than would
otherwise be possible. Examples include whether
and when to backfill repository openings and ways
to ensure that retrievability requirements can be
met.

482

QUESTION 3f:

QUESTIONS FROM SENATOR JOHNSTON

Hanford is ranked last on postclosure analyses,
last on preclosure health and safety, and last on
cost. Hanford is ranked first only on environ-
mental and socioeconomic impacts. DOE has stated
that when costs are discounted, Hanford moves up in
the overall ranking. Please explain how this is
possible.

ANSWER:

DOE did not state that when costs are discounted,
Hanford moves up in the overall ranking. What is
stated is that the relative differences among the
sites are reduced sharply when the time value of
money is taken into account. That is not to say
that the overall ranking changes; indeed, Hanford
remains the fifth-ranked site when costs are
discounted and all other siting factors defined for
use in the MUA are aggregated. As explained in the
previous response, however, there is no a priori
reason for concluding that the three sites that
rank at the top when the sites are considered
individually should necessarily make up the best
set of three for characterization when diversity is
taken into account.

The Recommendation Report does state: "While it
[Hanford] is ranked fifth when all of the
preclosure objectives are aggregated, it is clear
that this ranking is driven by the significantly
higher expected costs. In fact, if all preclosure
objectives except repository and transportation
costs are aggregated, Hanford becomes the most

483

- 2 -

desirable site, a telling factor given the low
relative importance assigned by the siting
guidelines to costs."

484

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 3g:

DOE cites rock diversity as an important factor in
the selection of three sites for characterization.

— Why is it that rock diversity was not included
in the factors incorporated into the ranking
methodology?

Isn't it true that rock diversity weighed
fairly heavily in the final selection of the
Hanford site?

If this is so, shouldn't this factor have been
considered equally with all other factors and
shouldn't it have been included in the ranking
methodology from the start?

ANSWER:

Some clarification is needed about how rock-type
diversity would be analyzed formally. Diversity
could be accounted for by conducting what is known
as a "portfolio analysis." This is a complex and
difficult form of analysis in which all possible
combinations of sites, with each possible combina-
tion considered as an alternative, would be
evaluated. Such an analysis would have required
input regarding highly speculative judgments about
such things as future licensing actions. Thus, a
comprehensive portfolio analysis would not be a
simple extension of the MUA, and would have
required considerably more time, cost, and effort.

It was our judgment that the extra time, cost, and
effort necessary to perform such an analysis was
not required to make a responsible decision.
Instead, we decided to consider the portfolio
effects qualitatively, as is commonly done in other

485

- 2 -

portfolio-type problems. We believe such an
approach is entirely consistent with the Act and
the DOE siting guidelines.

It is true that diversity "weighed fairly heavily"
in the decision to select the Hanford site. This
is not to say that diversity was the only factor,
however. The excellent predicted postclosure
performance and the dominance of costs were also
important factors.

That diversity should be afforded considerable
weight is consistent with the Act. The principle
of seeking diversity in types of rock is a central
theme of the siting provisions in the Act (Sections
112(a) and 113(a)); it has been part of the
geologic repository program since its inception.

486

QUESTION 3h:

QUESTIONS FROM SENATOR JOHNSTON

If all five sites were ranked as closely on
postclosure analyses as DOE has testified, does the
ranking methodology really serve to effectively
discriminate among sites?

If not, what is the purpose of the methodology?

ANSWER:

As it turned out, the ranking methodology did not
discriminate significantly among sites in the
category of postclosure performance. However, this
is in no way a weakness of the methodology, as
explained below.

The methodology is designed to discriminate among
sites for which there exists a reasonable basis for
discrimination. It is not designed to discriminate
artifically among sites, nor to create a
discrimination where none exists.

Specifically, with regard to estimates of
postclosure performance of the five nominated
sites, this means that because expected releases
are so far below the limits defined by the
regulatory agencies, all sites score above a 99 on
a scale where a 0 is the minimum level and 100 is
perfection. Although this finding does not serve
to effectively discriminate among sites, it is
nonetheless a significant insight from the
analysis. It indicates that all sites appear more
than adequate when compared against the exceedingly
stringent regulations for releases to the

487

- 2 -

accessible environment. In addition, the use of
methodology did much to answer criticisms of the
draft EA ranking methods made by the NAS ' s Board on
Radioactive Waste Management.

488

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 4 : Site Selection Guidelines

a. DOE'S site selection guidelines were published in
December 1984, just before DOE issued draft
environmental assessments, narrowing the nine
potential repository sites to three sites in
Washington, Nevada, and Texas.

— Please explain how the guidelines were used
to select the three sites.

Were the guidelines used?

— Could any of the nine sites have been
eliminated by the guidelines?

What is the purpose of using the guidelines if none
of the nine sites could have been eliminated anyway?

Were the guidelines structured so that all nine
sites already under consideration would be
found acceptable, as the States have charged?

ANSWER:

The siting guidelines (codified as 10 CFR Part 960)
most emphatically were used to select sites for
characterization, as follows.

The guidelines, in 10 CFR Part 960.3-2-2-2, require
the DOE to implement a multi-step process in
selecting sites for nomination as suitable for
characterization from among the potentially
acceptable sites. Very briefly, this process
involved the evaluation of the potentially
acceptable sites in terms of the disqualifying
conditions in the guidelines; selection of a
preferred site in those geohydrologic settings
containing more than one site; evaluation of each
preferred site within a geohydrologic setting under

489

- 2 -

the qualifying conditions of the guidelines; and
performing a reasonable comparative evaluation of
the sites.

Draft environmental assessments for each of the
nine sites were prepared to document the process
specified above. Some 20,000 comments were
received, and among them were many comments on the
three simple ranking methodologies used to
tentatively narrow from five sites to three sites.
Final EAs to accompany the formal site nominations
of the five sites were prepared on consideration of
all of the comments on the draft EAs. Decisions to
apply a formal decision-aiding methodology, to
prepare a separate report detailing that analysis,
and to seek independent review of the methodology
were largely made in response to the comments on
the draft EAs.

The methodology report presents a detailed
comparison of the advantages and disadvantages of
the five nominated sites. As an introduction to
that comparison, in Chapter 2 of the report, DOE
explains the relationship between the methodology
and the siting guidelines. Very briefly, the
report explains that the system and technical
guidelines are reflected in the various objectives

490

- 3 -
defined for use in the methodology. The overall
desirability of a site is related to the extent to
which the site achieves these various objectives.
The specific factors that influence a particular
site's achievement of objectives are derived from
both the favorable and potentially adverse
conditions associated with the technical
guidelines. These specific factors are depicted
graphically in diagrams known as influence
diagrams, which in turn, were used in the site
scoring process.

Finally, the implementation guidelines were
also used in selecting sites. These guidelines
govern the application of all other guidelines
in the evaluation of sites and establish general
rules to be followed during siting. Of particular
relevance here are the implementation-guidelines
requirements that give primary significance to
postclosure guidelines and secondary significance
to preclosure guidelines, and, that select sites to
the extent practicable in a diversity of geohydro-
logic settings and rock types.

With regard to questions about whether the
guidelines could eliminate any of the nine sites
identified as potentially acceptable, the answer is
yes. The guidelines were not structured so that

491

- 4 -
all nine sites already under consideration would
be found acceptable.

The purpose of the guidelines is stated in Section
112(a) of the Act. The guidelines are to specify
"detailed geologic considerations that shall be
primary criteria" for site selection; the Act also
requires the guidelines to specify "factors that
qualify or disqualify any site from development as
a repository" and lists the factors to be included.

The final DOE siting guidelines fulfill the
requirements of the Act. In addition, the
guidelines were developed from other sets of site
performance criteria defined for geologic
repositories by the National Academy of Sciences,
the International Atomic Energy Agency, earlier
programs in the United States, and existing and
applicable regulations promulgated by the NRC and
the EPA.

Moreover, in addition to integrating these various
sets of siting criteria developed over a period of
10 years, the final guidelines were promulgated
after two formal public-comment periods and two
rounds of consultation with the interested States.
Numerous changes were made to the guidelines in

492

- 5 -
response to comments from the public, State con-
sultants, and the NRC concurrence interactions. In
this regard, it is important to note that many
additional disqualifying conditions were added to
the proposed and alternative guidelines as a result
of the comment, consultation, and concurrence
procees.

493

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 4b:

The States and environmental groups have challenged
the site selection guidelines in court.

— If the courts find the guidelines invalid, what
will DOE'S contingency plan be?

— Would an adverse court decision render the
environmental assessments invalid?

— Would an adverse decision render the selection
of sites in Washington, Nevada, and Texas
invalid?

ANSWER:

The Department considers it unlikely that there
will be any adverse court decision regarding the
guidelines that could impact the conduct of the
waste management program. There are, nevertheless,
a number of issues before the court that question
the sufficiency of the environmental assessments
and the validity of the site selection decisions.
The Department will determine the appropriate
response to coiirt decisions on these issues when
those specific decisions are rendered.

494

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 5: The Hanford Site

a. The State of Washington has expressed concern about
certain adverse features of the Hanford site,
particularly ground-water travel time and tectonic
stability. The NRC staff recently echoed some of
these concerns in comments on DOE's final
environmental assessments. NRC said some of DOE's
conclusions concerning Hanford are overly favorable
or optimistic and may not have factored in
uncertainties. NRC found some of the same problems
in the draft environmental assessment.

What is DOE's response to the NRC staff comments?

What has DOE done, or what will DOE do, to resolve
these issues prior to site characterization?

ANSWER:

The potential for over-optimism and under-
estimation of uncertainty was recognized throughout
the process leading to the publication of final
environmental assessments. Provisions in the DOE's
implementation guidelines stipulate that reasonably
conservative assumptions, which allow reasonable
decisions to be made in the face of uncertainties,
be employed to support the decisions that must be
made in the various phases of the siting process.
Before site characterization studies, the evidence
(i.e., information, evaluation, assumptions, etc.)
is not expected to provide the precise information
required for licensing. But rather, the evidence
is expected to provide a reasonable basis for
assessing the merits or shortcomings of a site
against the siting guidelines.

495

- 2 -

Despite our efforts to fairly and accurately
represent current scientific judgments about such
issues as ground-water travel time and tectonic
stability, we appreciate that other technical
experts would disagree with the Department ' s
judgments. Current uncertainties leave much room
for reasonable and knowledgeable experts to
disagree. As the NRC observed, "At this stage of
the site investigation and screening process there
is inherent uncertainty in site information that
can lead to alternative interpretations of data.
Furthermore, resolution of uncertainties . . . must
await detailed site characterization."

DOE plans to address the NRC comments as the NRC
suggested: "For consideration by DOE in the
development of the Site Characterization Plans."
The NRC will have the opportunity to comment
formally on the adequacy of those plans. In an
effort to prepare the NRC for receipt of the plans,
advance copies of the geologic and hydrologic
characterization plans will be made available to
the NRC and interested States, Indian Tribes and
parties. In addition, DOE will hold technical
meetings with the NRC to discuss planning for and
the results of site characterization. In the
course of such technical discussions with NRC, DOE
will discuss alternative interpretations.

496

- 3 -
uncertainties, and means to resolve them in
detemnining a site's suitaQjility for development as
a repository.

497

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 5b:

According to an article by Luther Carter in Issues
in Science and Technology the total estimated cost
for the Hanford site is $12 billion in 1985
dollars, $4 billion more than for Richton Dome and
$5.4 billion more than for Yucca Mountain. Please
provide the Committee with up-to-date estimates of
these costs for each of the five sites nominated
for the first repository. Include a breakdown of
these costs showing the most significant cost
items. Which estimated costs have increased since
the enactment of the Nuclear Waste Policy Act of
1982? Why have these costs increased?

ANSWER:

The article in Issues in Science and Technology was
based on cost estimates prepared for the
Department's report entitled "A Multiattribute
Utility Analysis of Sites Nominated for
Characterization for the First Radioactive-Waste
Repository-A Decision-Aiding Methodology," May,
1986. No subsequent cost estimates have been
developed for the five nominated sites. Cost
estimates for the three candidate sites are
currently being completed in connection with the
upcoming analysis of the adequacy of the fee.

The breakdown of the costs that was used in the
Department's report is provided below. The only
major increase in these cost estimates, relative to
the estimates developed when the Nuclear Waste
Policy Act was enacted, occurred in the estimated
cost of operations. In addition to an increase for
inflation, estimates for operating costs increased
due to the addition of a 24-year caretaker period

498

- 2 -

following the last waste emplacement with
continuing performance confirmation and monitoring
activities, addition of performance confirmation
during the entire 50-year operating period,
operation of two (versus one) waste handling
buildings, and use of a site-specific waste package
with high Quality Assurance standards.

499

Repository-cost estimates
(Billion of 1985 dollars)

Site

Cost category Davis Canyon

Deaf Smith

Richton

Hanf ord

Yucca

Mountain

Developaent and
evaluation

1.6

1.5

Construction

Surface
Underground

1.7
0.8

1.2
0.8

1.2
0.7

1.6
1.3

0.8
0.4

Subtotal

2.5

2.0

1.9

2.2

1.2

Operation

Surface
Underground
Waste Package

3.1
1.9
1.0

2.7
2.0
1.0

2.6
1.7
1.0

3.6
4.0
1.3

3.0
1.2
0.5

Subtotal

6.0

5.7

5.3

8.9

4.7

Closure and

decommissioning

Surface
Underground

0.2
0.1

0.1
0.1

O.I
0.1

0.1
0.1

0.1
0.0

Subtotal

0.3

0.2

0.1

Total

Development and
evaluation

1.6

1.5

Surface
Underground
Waste Package

5.0
2.8
1.0

4.0
2.9
1.0

3.9
2.5
1.0

4.6
5.4
1.3

3.9
1.6
0.5

Total 10.4 9.5 9.0 12.9 7.5

Uncertainty band

-35:

6.8

6.2

5.9

8.4

4.9

+35%

14.0

12.8

12.2

17.4

10.1

500

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 5c:

ANSWER:

This same article claims that drilling 15-foot
diameter shafts in basalt at Hanford to depths of
more than 3000 feet represents "a feat beyond the
demonstrated State of the Art" .

— What is your response? Is the construction of
the shafts needed to open the repository within
the demonstrated State of the art?

— Have shafts this size ever before been drilled

to such depths in rock of the hardness of basalt?

— What was the result of the attempt in 198 3 to
drill a deep 14-foot diameter shaft at the Agnew
nickel mine in Australia? What are the lessons
of this experience for the proposed repository
at Hanford?

Current technology would enable the proposed shafts

at Hanford to be drilled successfully. For

example, a shaft to comparable size (14' diam.) at

Agnew Nickel Mine, Australia, was completed in 1983

to a drilled depth of 2460' in rock of equal or

greater hardness as Hanford. Other shafts of

slightly smaller diameter have been drilled to much

greater depths:

1. Shaft UC-3, 120" diam.. Central Nevada, 1968,
completed by Department of Defense (DOD) to a
depth of 5600' .

2. Shaft UC-4, 120" diam., Central Nevada, 1968,
completed by DOD to a depth of 4000'+.

3. Shaft UA-1, 90" diam., Amchitka Island, Alaska,
1967, completed by DOD to a depth of 6150' and
penetrating some basalts.

The rock found in The Agnew Nickel Mine was at
least as hard as the Hanford basalts and had a much

501

- 2 -

ANSWER 5c: (Cont'd)

less favorable Orillability Index. In addition,
shafts have been drilled in rock with unconfined
compressive strengths as high as 115,000 PSI as
coBpared to a range of 30-60,000 PSI for the
Hanford Basalts.

The Agnew shaft was drilled with a prototype drill
rig that had never before been tested. The hole
cost approximately twice the original estimate, and
took twice the original schedule to complete, but
it nevertheless was completed, and was functional.
Many problems were encountered which can be
suBBarized as follows:

1. The drilling rig was poorly designed for the
application, both structurally and
operationally.

2. Poor maintenance practices were followed.

3. The drilling rig operators were not
experienced.

4. The lubrication system for the cutter head was
not effective, and the mud circulation system
was poor.

5. Poor instrumentation caused poor operational
control .

6. Contract inadequacies provided no incentive for
the contractor to drill efficiently.

502

- 3 -
ANSWER 5c: (Cont'd)

All of the above problems are lessons for Hanford,
and all have been incorporated into current project
planning. The Hanford drilling rig is a completely
different and proven design, and will be operated
by experienced personnel using approved procedures,

REFERENCES

1. Smith, Raymond M. , Field Inspection Report
No. 2 on Blind Shaft Drilling at the Agnew
Mining Company Nickel Mine, Western Australia,
U.S. DOE report prepared by RKE/PB, January, 198 3,

2. Fenix and Scission, Inc., UA-1 Hole History,
report prepared for Department of Defense,
November, 1969.

3. Kaesehagen, F. E. , Blind Shaft Drilling -
State of the Art, report by the Australian
Mineral Industries Research Association,
October, 1979.

4. Morrison-Knudsen Co., Inc., Large Shaft
Development Study, report SD-BWI-ER-007,
prepared for Rockwell Hanford Operations,
March, 1984.

5. Morrison-Knudsen Co., Inc., Assessment of
Conducting a Large Shaft Demonstration Test
Utilizing Geodril Rig-32, report SD-BWI-ER-008 ,
prepared for Rockwell Hanford Operations,
January, 1985.

503

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 5d: According to the same article (in Issues in Science
and Technology by Luther Carter) "DOE's assertion
that a Hanford repository would far exceed the
Environmental Protection Agency's performance
standards is not supported by available data,
which, according to the U.S. Geological Survey, are
'insufficient to conclude much of anything with
regard to groundwater travel time or direction'."

Is this accurate? Please discuss.

Has the USGS commented on the issue of
engineering feasibility and the danger of
flooding at the Hanford site? What were their
comments? What is DOE ' s response?

ANSWER: With regard to the Department of Energy's (DOE)

judgment that a Hanford repository would far exceed

the Environmental Protection Agency ' s performance

standards, the Department made every effort in its

multi-attribute utility analysis (MUA) to fairly and

accurately represent current scientific judgments.

Despite this, it appreciates that there may be those

who disagree with the specific estimates provided by

the Department's technical specialists. Current

uncertainties leave room for reasonable and

knowledgeable experts to disagree. The conclusion

from the MUA analysis is that all of the five sites

analyzed would, with very high probability, meet EPA

limitations on postclosure radionuclide releases with

a substantial margin of safety. Thus, even if more

pessimistic estimates prove accurate, there is still

assurance that the sites selected for characterization

will, from the standpoint of meeting EPA release

504

- 2 -

requirements, provide excellent alternatives for the
final choice of a repository site.

With regard to the utility of available data for
estimating groundwater travel time and flow direction,
the Department has taken into consideration important
uncertainties in the data through extensive additional
probability analyses since issuance of the draft
Environmental Assessment commented on by the USGS on
March 6, 1985. The methods and results of that
probability analysis on which current estimates of
groundwater travel time are based are reported in the
final EA on the Hanford Site published in May 1986.
The analysis was based on hydraulic data derived from
approximately 200, mostly single-well, aquifer tests
at about 35 well sites irregularly distributed areally
in the vicinity of the proposed repository site. The
test facilities and test results are of variable
quality and cover wide ranges of values. Individual
tests for the most part represent those hydraulic
characteristics in near proximity to the test well,
thereby limiting the areal distribution and compre-
hensiveness of the data base. However, good quality
groundwater level data for defining flow direction
laterally and vertifically beneath the proposed
repository site was derived from a grouping of three
nested prizometers at the site. On the basis of
stochastic analyses of the available data, taking into

505

- 3 -

account uncertainties in the ranges of parameter
values, the Department judges that groundwater travel
time and direction can be estimated within acceptable
limits of probability for recommending sites for
characterization. The hydrologic testing program
planned as a part of site characterization is expected
to provide data to reduce the level of uncertainty in
hydrologic parameter values needed for ultimate
performance assessment and licensing.

The USGS has commented at various times on issues
relating to engineering feasibility and potential for
underground flooding at the Hanford site. Examples
include comments that may be cited from three
different documents prepared by the USGS in 1983.
These are:
1) Review comments by the U.S. Geological Survey

on "Site Characterization Report for the Basalt

Waste Isolation Project," DOE/RL-82-3, May

1983.

- p. 2, par. 6 lines 6-8 and p. 3, par.l, lines 1-3 -

"At the prevailing water pressures, fractured,
breccated and pillowed zones could wash out,
resulting in disastrous (perhaps even explosive)
flooding in the mined passages which could be
impossible to control initially by pumping.
Such catastrophic failures could occur during
construction and during waste emplacement
operations making retrieval of waste difficult."

506

- 4 -

- p. 3, par. 2, lines 9-14 —

"Should the pathway created by the breakdown
of the fracture filling materials extend to a
permeable zone in the basalt, the high
differential hydraulic head could induce
piping (flushing of the fracture filling
material at a rapidly accelerating rate)
which would increase the hydraulic
conductivity of the fractures and provide
another mechanism by which disastrous
flooding of the repository could occur."

2) "Survey of Available Information with Respect
to Sites Currently Under Consideration for
Possible Development of a Repository for High-
Level Radioactive Waste" submitted by the U.S.
Geological Survey to the Honorable Richard L.
Ottinger, Chairman, Subcommittee on Energy and
Power, Committee on Energy and Commerce, U.S.
House of Representatives, August 10, 1983, in
response to written request by the Chairman
dated May 3, 1983.

Enclosure 3 of 6, p. 2, par. 2, lines 9-12 —

"The possibility of penetrating zones of
greater permeability that would yield
groundwater under high hydrostatic pressure
must be considered in the plans for
constructing a repository in basalt at
Hanford."

3) Report on findings of a U.S. Geological Survey
team of scientists on their visit on June 7-10,
1983, to the BWIP (Hanford) to review data
collected to date by the DOE contractor and to
attempt to assess the adequacy of this data base
and planned future studies to characterize the

507

- 5 -
site — transmitted under covering letter dated
August 25, 1983, to Mr. Robert L. Morgan, Project
Director, Nuclear Waste Policy Act Project Office,
U.S. Department of Energy, Washington, DC 20585.

- p.l, par. 4, lines 6-10 (Executive Summary) -

"Acknowledged high water pressures due to
normal hydrostatic conditions and a
recognized disadvantageous state of stress
in a potentially fractured geohydrologic
environment indicate potential hazards of
principal concern that must be considered in
the planning and engineering of a mined
repository at Hanford."

- p. 3, par. 3 lines 1 and 2 and lines 5-8 -

"A major unresolved geologic issue is how to
deal with unpredictable zones of potentially
high vertical permeability in the repository
host rocks.... If these zones were
encountered in construction of a repository,
they may present ma] or construction problems
because of the high hydrostatic water
pressures in the surrounding aquifers."

- p. 5, par.l, lines 1-3 and lines 8-10 -

"We feel that the planning and design of a
repository in the Pasco Basin must
anticipate that some highpermeability
features of the types described will
inevitably be encountered in an area the
size of a repository. . . . These zones will
contain water at high hydrostatic pressures
and could potentially produce water at high
flow rates. "

The intent of the foregoing comments by the USGS

was to draw attention to hydrogeologic conditions

potentially existing at the Hanford site that the

Department of Energy should make every reasonable

effort to evaluate when characterizing the site for

possible construction and operation of a

508

- 6 -
repository. The expressed concerns were based on
the limited data base available at the time, which
nonetheless was sufficient to indicate the need to
consider the potential problems cited by the USGS.
Since that time, the Department in preparing the
Environmental Assessment (see, for example. Volume
III of final EA, pg. C.8-1) and design of the
exploratory shaft facility, has continued to
evaluate the existing data base to develop ranges
of estimated groundwater inflow to underground
workings so that it can deal with any inflow
conditions that might reasonably be expected. To
be prepared to deal with likely maximum inflows,
the Department, as a phase of site characterization
before Exploratory Shaft construction, is
considering a plan to run a series of local and
large-scale hydraulic stress tests at several
horizons in the Grande Ronde Basalt at, above, and
below the proposed repository horizon in the
immediate vicinity of the planned Exploratory Shaft
Facility (ESF) . Such "pre-ESF" tests are expected
to yield information that will contribute to the
shaft design and operation of the ESF. Also, in
the process of developing the underground workings
of the ESF, various techniques such as advance
lateral borings are planned for identifying
possible high-flow zones ahead of actually mining

509

- 7 -

out the tunnels and rooms needed for underground,
in-situ tests, which are expected to provide
appreciably more detailed information on the poten-
tial for underground flooding. In the meantime,
evaluation of existing data by the Department
indicates that the range in groundwater inflow
rates considered likely is controllable by
engineering measures with reasonably available
technology.

77-104 0-87-17

510

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 6: The Deaf Smith Site

ANSWER 6a:

a. Opposition to the bedded salt site in Deaf Smith
County, Texas seems based on the fact that the
shaft to the repository would pass through the
Ogallala aquifer. Why isn't this a
disqualifying factor for the Deaf Smith site?

— What would be done to prevent pollution of the
aquifer by radioactivity or by salt?

b. In testimony to the Committee, Governor Clements
cites "salt creep" at depth as a major concern
with the projected performance at the Deaf Smith
site. Room closure due to creep in impure salt
is cited as genuine difficulty in maintaining
retrievability a specified in Nuclear Regulatory
Commission regulations.

— What do DOE'S analyses of projected salt creep
rates at the Deaf Smith site show?

What is DOE'S response to these obsei-vations by
Gov. Clements?

c. What has DOE learned about matter of salt creep,
room closure, cracking and brine migration in salt
repositories as a result of your work at the Waste
Isolation Pilot Project? Please discuss in detail
and provide a bibliography of relevant reports.

In general, the presence of an aquifer between the host

rock and the land surface is not a reasonable basis for

a disqualifying condition. Such a condition would be

far too restrictive and would unnecessarily disqualify

most of the potential sites in the country. However, a

site would be disqualified if repository construction,

operation, or closure would significantly degrade the

quality or significantly reduce the quantity of water

from major sources of offsite supplies presently

suitable for human consumption or crop irrigation and

511

- 2 -

ANSWER 6a: (Cont'd)

such impacts could not be compensated for, or mitigated
by, reasonable measures.

The issue of whether this disqualifying condition
existed at the Deaf Smith site was fully considered
during the development of the final Environmental
Assessment for the site. As explained in the final EA
(see, for example, discussions on pps 5-60 to 5-63 of
Volume 1, p. 6-55 of Volume II, and pgs. c.4-47 to
C.4-48 in Volume III), the Deaf Smith site is not
disqualified because only minimal impacts on water
quality related to repository development are expected
and repository-related water requirements represent a
very small percentage (less than one-fourth of one
percent) of the water supply in Deaf Smith County.

Pollution is generally caused by the escape and
transference of some undesirable substance. The
substances and processes involved can be either man-
made or natural. Since the dominant direction of
groundwater movement in the Permian Basin based on
current information is to the southeast and downward,
it is not likely that a source of pollution for the
Ogallala aquifer would come from the repository.

Since the high-level waste to be handled at the
repository is required to be in solid form (10 CFR
60.135 (c)(1)), an inadvertent release of material

512

- 3 -

ANSWER 6a: (Cont'd)

within the repository surface area would be readily
detectable and recoverable. The current design for
surface structures (SCP-CDR) has placed the salt
storage pile on the surface in a location that
minimizes wind blown dust. The site will collect and
control surface storm water in a storm water pond and
will collect runoff from the salt storage pile in a
brine pond.

Transference of radionuclides from the subsurface
structure of the repository to the Ogallala/Dockum
aquifers is considered unlikely since the materials in
question would have to move upward for 1500 ft. to
reach the base of the Dockiim Group. All shafts sunk
through the aquifers will be fully lined to prevent
operational flooding and will be fitted with multiple
seals and plugs before decomissioning to prevent
transport of radionuclides. These seals are also
intended to prevent transfer of any brines upward from
the salt portions of the stratigraphic section.

ANSWER 6b: For a depth of 785 meters, an extraction ratio of 23
percent, and a thermal loading of 15 watts per square
meter, the room closure rates are projected to be of
the order of 2 0 centimeters per year.

As stated in Volume 3 of the Deaf Smith County Site
Environmental Assessment (DOE/RW-0069 , pg. C.8-6):

513

- 4 -

ANSWER 6b: (Cont'd)

"Creep of salt applies to two retrievability issues,
reexcavation of waste rooms and removal of canisters
from emplacement holes. Even with early
backfilling, substantial closure of waste rooms
prior to retrieval operations is likely. In order
to provide the room height needed for overcoring (if
needed, see below) or for lifting waste packages
from the holes, remining will be needed to remove
some in situ salt, mostly from the roof, in addition
to the consolidated backfill. Remining of backfill
and in situ salt can be accomplish by the same
techniques as original waste room excavation with
the addition of needed cooling and, more intensive
ground support measures.

If waste packages are placed in open holes, either
with or without crushed salt backfill, the creep of
the in situ salt is expected to close the airgap
around the hole shortly after emplacement. The
waste package is designed to withstand any stress
resulting from the closure, but removal of the
package, in this case, may require overcoring. This
emplacement mode, however, is only the simplest of
several contemplated by the DOE which include, but
are not limited to, horizontal emplacement of one or
more canisters in holes drilled into the pillar
between rooms, the use of large holes without
backfill, the use of steel or concrete sleeves to
line emplacement holes, and combinations of these
methods. The use of sleeves, for example, should
eliminate concerns about the effect of creep closure
on location and removal of waste packages in
retrieval operations.

The EA describes only the simplest scheme for waste
emplacement, i.e., a single row of vertical holes in
the floor of the storage room with each hole
containing a single vertically placed waste package
surrounded by crushed salt. Creep of the in situ
salt at elevated temperature surrounding the
canister will reconsolidate the crushed salt and put
a compressive stress on the waste package surface.
This clamping action will prevent the retrieval of
the waste form without either opening the waste
package overpack or overcoring or reexcavating the
waste package.

A variety of location techniques are available
including surveying from permanent monuments locared
outside the high temperature area, metal detectors,
radioactivity detectors, and earth penetrating
radar, which, when used by themselves or the

514

- 5 -

ANSWER 6b: (Cont'd)

combination, can provide sufficiently accurate
position data."

ANSWER 6c: The rates of salt creep, room closure, and brine

migration are greater than the projected rates based on
numerical modeling. Better predictions of salt creep
will require a more thorough understanding of the
deformation mechanisms of salt and their dependence on
stress and temperature. Room closure is influenced by
clay seams contained within the salt. Fluid migration
is probably a result of brine migration from salt and
water migration from the clay seams. Attempts to
monitor cracking within the salt by use of acoustic
devices have yielded inconclusive results. It is
expected that microcracking in the salt around the
periphery of a room could lead to higher rates of room
closure.

515

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 7: a. NRC recently identified concerns about overly
optimistic assumptions made by DOE about
hydrothermal activity contained in the final
environmental assessment on the Yucca Mountain
site. Similar concerns have been expressed by
the State, and were identified by the NRC staff
in comments on the draft environmental
assessment in 1985.

— What is DOE'S response to the NRC staff
comments?

— What is DOE doing, or will DOE do, to resolve
this issue prior to site characterization?"

b. Witnesses from Nevada have stressed that the
Yucca Mountain is near the Nevada test site and
that very little is known about the effect of
nuclear weapons testing on the tuff formation
that would be the host for the repository.

c. Gov. Sawyer referred to "a river of water"
under the Yucca Mountain site. What does DOE
know about this?

d. Gov. Sawyer also alleges that DOE has failed to
establish an environmental baseline for Yucca
Mountain, so that changes in the environment due
to waste activities there cannot be measured.

— Is this true? Please explain.

Gov. Sawyer also testified that DOE has been
criticized by the NRC staff in six "important"
technical areas:

1. active fault movement and reactivation of
prior faulting by nuclear weapons testing;

2. hydrothermal activity that could affect
waste containers uses there (sic) ;

3. ore deposits in the area that might cause
future human intrusion;

4. over-reliance on geochemical effects to
slow transport of radioactivity through the
rock ;

5. over-reliance on models of groundwater
travel time in the unsaturated zone;

516

2 -

QUESTION 7: (Cont'd)

6. over-reliance on uncertain performance of
engineered barrier systems.

What is your response to these comments?

ANSWER 7a: Hydrothermal alteration of the rocks at Yucca

Mountain will be extensively studied during site
characterization. Preliminary studies have shown
that the alteration of rocks at the surface has
taken place at temperatures less than lOQOC . The
hydrothermal alteration increases moderately with
depth. The hydrothermal system that produced the
low temperature alteration has been dated at 12
million years, and thus would not likely interfere
with the functioning of a repository. In addition,
the current ground water temperatures are less than
50°C and likely do not present a situation where a
modern hydrothermal system would develop and
interfere with the functioning of a repository.
Many additional studies will be done during site
characterization, including studies of degree, type,
and timing of the alteration and studies on the
current and possible future thermal regime at Yucca
Mountain.

ANSWER 7b: It is important to point out that no surface or

underground testing of nuclear weapons has occurred,
or is anticipated to occur at any time in the
future, within less than 23 km of the Yucca Mountain

517

- 3 -

ANSWER 7b: (Cont'd)

site. The effects of nuclear weapons testing on
geologic formation properties and groundwater have
been extensively studied for many years on the
Nevada Test Site (NTS) , for siting and analysis of
weapons tests. From extensive pre- and post-shot
investigations, it is known that formation damage
and permanent perturbation of the groundwater
system are confined to a limited zone (much less
than 15 km) around the shot point. Facilities on
the surface and underground are maintained in very
close proximity to weapons tests and are undamaged.
Thus there is no indication that this kind of
permanent damage either exists at the Yucca Mountain
site or will occur in the future as a result of
nuclear testing at the NTS. Surface faulting in
response to nearby weapons tests has been observed
at Pahute Mesa and Yucca Flat, resulting in seismic
activity along faults that approach 10 km in length.
Some of the faults associated with induced seismic
activity are similar to those at the Yucca Mountain
site. However, there are several aspects of weapons
test-related faulting activity which indicate that
damage to the host tuff formation at Yucca Mountain
is unlikely. The extent of faulting, the size of
fault displacements, the magnitude of ground motion
from induced faulting, and characteristics of the

518

- 4 -
ANSWER 7b: (Cont'd)

accompanying aftershocks all indicate that these
faults may already have been near the failure point,
and that the minor amount of slip was triggered by
the nearby explosions. The release of natural
stress by the explosions may actually reduce the
probability of earthquake recurrence along these
faults during the lifetime of the repository.
Extensive monitoring has shown that the ground
motion produced at the Yucca Mountain site, by even
the largest nuclear tests, is comparable to ground
motion from natural earthquakes of modest magnitude,
of which there have been many in the vicinity of the
NTS over the past several million years.

In sximmary, the effects of nuclear weapons testing
have been extensively studied, and permanent effects
are insignificant outside a limited distance.
Movement on nearby faults has been induced by
weapons testing, but there are good indications that
testing has triggered natural processes. Ground
motion at the Yucca Mountain site from past and
anticipated weapons testing at distances greater
than 15 km is comparable to natural seismicity, and
the overall effect of weapons testing is likely to
be insignificant compared to the cumulative effect
of natural activity over geologic time. Natural

519

- 5 -

ANSWER 7b: (Cont'd)

faulting activity and its associated effects will be
extensively studied during site characterization.

ANSWER 7c: In the vicinity of Yucca Mountain, there is

virtually no perennial surface water; water must be
obtained from wells. Moisture contained within the
earth is called ground water. Ground water is not a
rare occurrence; it occurs everywhere beneath the
earth's surface. Near the surface, ground water
only partly fills the cracks and pores within the
rock units, but pores of deeply buried rock units
are completely saturated with water. Saturated rock
units that are capable of storing and transmitting
groundwater are known as aquifers. Three aquifers
are recognized in the Yucca Mountain vicinity: the
valley fill, tuff, and lower carbonate aquifers.

Underground "rivers" occur only in cavernous
limestone and in some basaltic lava tunnels.
Neither of these conditions are known to occur
beneath Yucca Mountain. Extensive hydrogeological
testing in the Yucca Mountain vicinity has failed to
disclose any indication of "a river of water" under
Yucca Mountain. This phrase is often mistakenly
used when what is actually meant is ground water in
an aquifer. Water in the aquifers at Yucca Mountain
flows very slowly and is estimated to move at a rate

520

- 6 -

ANSWER 7c: (Cont'd)

of seven meters (23 feet) per year or less. The
closest known aquifer is more than 500 meters (1500
feet) below the Yucca Mountain site.

The hydrogeology of the Yucca Mountain region is
discussed in the Environmental Assessment (EA) and
in a large number of scientific reports and will be
summarized in the Site Characterization Plan (SCP) .
Understanding the hydrogeology of the Yucca Mountain
area is an important part of site characterization.

ANSWER 7d: This question may be interpreted with reference to
three distinct periods of time: (1) the
environmental baseline established prior to the
initiation of field activities in the later 1970s,
(2) the pre-site characterization environmental
baseline, and (3) the environmental baseline
established before repository construction. Each of
these is discussed in turn below. It is not true
that the DOE has failed to establish an environ-
mental baseline for Yucca Mountain so that changes
in the environment due to waste activities there
cannot be measured. The DOE has met the substantive
legal and technical requirements in all phases of
field investigations, has established a suitable
environmental baseline to support Nevada Nuclear
Waste Storage Investigations Project-related

521

- 7 -
ANSWER 7d: (Cont'd)

activities, and will continue to do so as required
by appropriate statute, regulation, and guidance.

Baseline established prior to initiation of field
activities: It has been the policy of DOE to
conduct preconstruction surveys for individual
activities to minimize biological and archaeological
impacts for field investigations both on and off the
NTS. Several activities were controlled through
agreement or permit stipulations and conditions. In
the context of The National Environmental Policy Act
(NEPA) , the field investigations conducted were not
a major federal action subject to NEPA.
Consequently, a comprehensive baseline was not
required for the investigations conducted during
this time frame.

Pre-site characterization baseline: The Yucca
Mountain EA establishes a pre-site characterization
environmental baseline. The EA was subject to
extensive public and agency review, and comments and
responses addressing these comments are provided in
Volume III of the EA. A review of this volume
indicates that the comments submitted did not
question the adequacy of the environmental baseline
for assessment of site characterization
environmental impacts. The Nuclear Waste Policy Act

522

- 8 -

ANSWER 7d: (Cont'd)

(NWPA) specifies that site characterization
activities are considered preliminary decision-
making activities, and as such do not require an
Environmental Impact Statement (EIS) under NEPA or
any environmental review under the subparagraph
provisions of NEPA. DOE is, however, in the process
of developing, in consultation with the affected
States and Indian tribes, environmental monitoring
and mitigation plans. These plans will provide for
active monitoring of site characterization
activities which may have a potential to produce
adverse environmental impacts .

Baseline established prior to repository
construction: As indicated in the NWPA, a
recommendation by the DOE Secretary of a site for
development as a repository is a major Federal
action that requires an EIS under NEPA. The
environmental baseline against which repository
development and operation impacts will be assessed
is the post-site characterization environmental
conditions. This baseline will be developed
pursuant to NEPA and its implementing regulations
and will be reported in the EIS.

ANSWER 7dl: The potential for movement on faults is considered
to be an important factor in the selection of waste

523

- 9 -

ANSWER 7dl: (Cont'd)

repository sites by both DOE and NRC. Faulting may
affect surface and underground installations by the
differential displacement that occurs along a fault
or by the ground motion that results from the
earthquake caused by such displacement. Faulting
may also affect waste isolation by causing changes
in parameters that affect groundwater flow or
travel times. In its review of the EA, the NRC
staff felt that more detail should have been
included on some types of faults that have been
postulated to occur in the vicinity of the site. In
the time period between the preparation and review
of the EA, both DOE and the NRC have become aware of
the preliminary results of ongoing DOE studies that
form the background for the NRC questions.

Gov. Sawyer's comments on the reactivation of faults
due to nuclear weapons testing apparently result
from observations on the Yucca fault in Yucca Flat,
located about 50 km northeast of Yucca Mountain.
Minor movements have been noted on the Yucca fault
after nearby tests in Yucca Flat. However, natural
movements have also occurred on the fault during the
last 10,000 years so the induced displacements from
nuclear tests do not appear to have reactivated a
previously inactive fault.

524

- 10 -

ANSWER 7dl: (Cont'd)

A discussion of the observations on the Yucca fault
will be included in the SCP. The SCP will also
contain a review of preliminary analyses on the
effects of ground motion generated by underground
nuclear explosions (UNE) . Damage to of fsite mines
has not been reported during UNE testing, and damage
to onsite tunnels is generally confined to the
immediate vicinity of the blast. Current data
indicate that 95% of the aftershocks induced by a
UNE are very small and occur within 14 km of the
explosion site. Surface and underground facilities
at the repository will be designed to accommodate
ground motions from earthquakes occurring at short
distances from the repository (1 to 2 km). Because
of the distance from the site to current or proposed
testing areas (23 km or greater) , design
considerations will probably be dominated by
concerns about naturally occurring earthquakes and
faulting rather than UNEs. Descriptions of planned
activities to evaluate the effects of UNEs will also
be contained in the SCP. These studies will include
an evaluation of the possibility that UNEs might
alter the rate of occurrence of natural earthquakes.

ANSWER 7d2: No recent hydrothermal activity has been identified
at or near Yucca Mountain. Down hole temperature

525

- 11 -

ANSWER 7d2: (Cont'd)

measurements of the groundwater and heat flow
measurements at Yucca Mountain and vicinity are low
and thus do not indicate that there is an active
hydrothermal system in the area.

The risk of developing a hydrothermal system in the
area that could affect the waste package is thought
to be low because hydrothermal systems take several
tens of thousands of years to develop. Many
additional studies are planned during site
characterization that will assess the potential for
hydrothermal activity and that will model the
performance of the waste package under a variety of
conditions.

ANSWER 7d3 : Extensive studies are planned during site

characterization to assess the potential for human
intrusion or interference with the intended
functioning of a repository. Present evidence does
not indicate that Yucca Mountain is a likely target
for mineral exploration, nor has any commodity been
identified that is likely to be economic at present
or in the future. Preliminary chemical analyses on
the rocks at Yucca Mountain have failed to exhibit
any significant elemental commodities, including
gold and silver. No minerals formed by alteration,
specifically characteristic of economic mineral

526

- 12 -
ANSWER 7d3: (Cont'd)

deposits, have been found at the Yucca Mountain
site. Studies to be performed during site
characterization include surface and subsurface
geochemical sampling; geophysical assessments; the
calculation of net value, grade, or tonnage for any
commodity identified as a resource or a reserve; and
a comparison of the geology and geophysics of the
Yucca Mountain site with known areas of
mineralization in the Great Basin in order to
qualitatively assess the Yucca Mountain Site's
potential for human intrusion or interference as a
result of mineral exploration.

ANSWER 7d4 : Geochemical effects that could provide pathways or
retard the transport of radionuclides are important
concerns to any proposed repository. Extensive
laboratory, field, and theoretical studies have been
conducted or are planned during site characteri-
zation. Experiments on individual radioactive
species and their chemical interaction with rocks
from Yucca Mountain will be performed under widely
varying geochemical conditions. Analog field tests
are also proposed during site characterization.
This data will then constrain the limits of the
parameters used in the modeling of the geochemical
environment at the site and the pathways to the
accessible environment. Extensive studies are also

527

- 13 -
ANSWER 7d4: (Cont'd)

planned on the stratigraphy, mineralogy, fracture
density, etc.; and these will provide information on
the geochemical environment along the pathways to
the accessible environment. Therefore, it is
premature to state that DOE overly relies on
geochemical effects. Most of the data will be
collected during site characterization. Only then
can the data be used to assess the effects (negative
or positive) of the interaction of the geochemical
environment and radionuclides.

ANSWER 7d5: The use of models to predict the migration rates of
radionuclides in the unsaturated zone is necessary
and is a direct result of the extremely long travel
times (in comparison to a saturated horizon) which
are currently expected to exist at Yucca Mountain.
An over-reliance on models of ground water travel
time cannot be demonstrated because field tests and
model extrapolation are yet to be done under site
characterization .

Currently, over sixty scientific studies are planned
during the site characterization process. While
most of these studies will contribute information
which will be used to understand the potential for
long-term patterns of radionuclide migration,
certain studies are specifically focused at

528

- 14 -
ANSWER 7d5: (Cont'd)

providing field data to predict ground water travel
times in the unsaturated zone. These include:

characterization of the vertical and lateral

distribution of stratigraphic units within the

site area

characterization of percolation in the

unsaturated zone

characterization of unsaturated zone information

geophysical and rock properties testing

fractured-rock hydrology

- hydrochemical characterization of the unsaturated
zone

unsaturated zone system analysis and integration
characterization of site structural features

- characterization of gaseous phase movement in
the unsaturated zone.

ANSWER 7d6: The fundamental function of the waste management
system is to contain and isolate the radioactive
material so they cause no undue harm to man or his
environment. Because this requirement extends for a
very long period of time, it cannot be demonstrated
by operational experience. It will be appraised by
a systematic, quantitative evaluation using all
relevant field and laboratory data combined with the
most up-to-date analytical methodologies and experr

529

- 15 -
ANSWER 7d6: (Cont'd)

scientific judgment. It is not a valid conunent to
state that an over-reliance is placed on the
Engineered Barrier System because much new work will
be carried out during site characterization that
will assess the Engineered Barrier System. The
current areas of investigation of the engineered and
natural components of the system include the
following:

Waste Package Environment. Waste package
environment activities provide experimental
determinations of the physical, chemical, and
hydrologic conditions the waste package may
experience during its lifetime. Modeling of the
experimental results provides a basis for
predicting the long-term behavior of the coupled
chemical and hydrologic processes that may affect
the waste package.

Waste Form Testing - Spent Fuel. Work will be
conducted to characterize the behavior and
determine the radionuclide release rates for the
spent fuel waste form under repository
conditions. These efforts are required by the
NRC and DOE.

530

- 16 -
ANSWER 7d6: (Cont'd)

Waste Fona Testing - Glass. Glass waste form
testing is conducted to determine the rate of
radionuclide release from waste glass under
repository conditions. Laboratory testing is
used to constrain release rates and to predict
long-term behavior of the waste glass material.
Model development will include computer code
development and laboratory work to determine
important kinetic and thermodynamic data for the
model .

Metal Barrier Selection and Testing. This area
of activity will constrain material performance
under anticipated repository conditions and under
a range of possible variations in those
conditions. After the material selection is
made, a test plan will be developed and
implemented to establish a data base for
container material performance. Computer models
will be used to extrapolate to the time periods
involved during the life of the repository.

Other Materials. The effects of repository
construction materials on the waste package
environment and on the performance of the waste
package components will be determined. The main
construction materials that could affect long-

531

- 17 -
ANSWER 7d6: (Cont'd)

term performance of the waste package are grouts ,
concretes, borehole seals, shaft seals, and
borehole liner materials.

Integrated Testing. This activity covers the
development of thermodynamic data needed for
geochemical modeling of the near-field
environment and the engineered barrier system.
Geochemical modeling calculations will be
validated by laboratory tests.

Waste Package Performance Assessment. Waste
Package Performance Assessment provides for the
development of physical and mathematical models
that will allow the evaluation of the waste
package under different physical and chemical
conditions and will be used to assess the
Engineered Barrier System.

532

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 8: Consultation and Cooperation

(a) Please clarify for the record what the
difficulty is in getting the grant issue
resolved with the State of Nevada.

(b) Please provide the Committee with a chronology
and discussion of the consultation and
cooperation activities the Department has
undertaken with the States and affected Indian
Tribes in the first repository program.

(c) DOE acknowledges in the draft Mission Plan
amendments that consultation and cooperation
with the States and Indian Tribes has been
difficult. DOE also acknowledges that success
of the waste program may depend largely on
effective public interaction.

What specific things is DOE doing to improve
its relations with the States and Indian
Tribes?

How successful have DOE's increased efforts
been?

How will DOE judge the success of its
efforts to improve relations?

(d) What does DOE believe constitutes a "good faith
effort" to comply with the consultation and
cooperation requirements of the Nuclear Waste
Policy Act of 1982 for purposes of
certification under the Fiscal Year 1987
continuing resolution?

ANSWER (a) : In February 1986, the State of Nevada requested that

$5.6 million be budgeted for its Calendar Year 1987

grant. The Department budgeted that amount. In

October 1986, the State submitted a grant

application for $10.25 million.

As a result of the substantial increase in the
amount of funds requested, the Department undertook
a review of the proposal and the availability of

533

- 2 -

funds for the increased scope of activities. These
reviews, which involved consultation between
Headquarters, the Nevada Project Office, and the
State extended over several weeks. The outstanding
issues have been resolved and the Department made an
initial award to the State of Nevada for $6.5
million for Calendar Year 1987. The State has been
asked to provide some additional information on
those activities not funded initially.

ANSWER (b) : Section 117(c) of the NWPA requires that DOE seek to
enter into written C&C Agreements with the States
and Indian Tribes not later than 60 days after
Presidential approval of a site for site
characterization or upon written request by an
affected party. DOE has taken some internal steps
to prepare for these negotiations. On June 24,
1983, DOE issued internal guidelines for
implementing the provisions of Section 117(c).
These guidelines have recently been reevaluated by
DOE, with State and Tribal input, and are currently
being revised. In addition, DOE has held two
workshops to prepare Project Office and Headquarters
staff for negotiations. These workshops were held
in September 1983 and July 1986.

534

- 3 -

Although a C&C Agreement has not yet been signed,

concluding such agreements remains a high

priority of DOE. The following is a brief history

and current status report of C&C Agreement

negotiations.

o Informal negotiations with the State of

Washington began in 1979, with the first formal
negotiation session being held on July 27, 1983.
In the fall of 1984, a draft C&C agreement was
developed with mutual concurrence on all
provisions except liability and defense waste. A
recent informal meeting was held October 9, 1986,
to discuss the C&C negotiation process.

o DOE and the Confederated Tribes of the Umatilla
Indian Reservation began negotiations in August
of 1985 and six negotiations sessions have been
held to date.

o On May 23, 1983, the Yakima Indian Nation

requested formal negotiations, which began on
July 15, 1983. Negotiations were suspended,
however, pending conclusion of an agreement with
the State of Washington.

o In June 1986, DOE began informal discussions on
procedural arrangements with the Nez Perce Indian

535

- 4 -
Tribe. A more formal discussion was held in
August 198 6.

o Within 60 days of the Presidential approval of
the three candidate sites — specifically, on July
25, 1986, — DOE invited the three States and three
affected Indian Tribes to a joint meeting to
discuss C&C Agreement issues. The affected
parties subsequently responded that they
preferred individual meetings.

o On November 19, 198 6, DOE wrote each of the
three States and three affected Indian Tribes
requesting that negotiations begin or be
renewed .

Section 117(c) requires that DOE prepare a report
to Congress if a written C&C Agreement is not
completed within 6-months after DOE seeks to
enter into an agreement. Prior to submission to
Congress, the report must be sent to the State or
Indian Tribe for review and comment. These
comments must be included in the report before it
is sent to Congress. On December 23, 1986,
reports were sent to the three States with
candidate sites and the three Indian Tribes. DOE
has received official comments from the three
States, the Confederated Tribes of the Umatilla
Indian Reservation, and the Nez Perce Tribe.

536

- 5 -

When the Yakima Indian Nation comments have been
received, DOE will transmit the reports and the
comments to Congress.

ANSWER (c) : To be responsive to the needs of States and Indian
Tribes, DOE is currently defining opportunities to
complement the C&C process and is identifying some
programmatic operating principles and initiatives to
implement this process. As a continuing step in
this process, DOE held a meeting with the States and
Indian Tribes in New Orleans in November 1986 to
obtain their assistance in efforts to define the C&C
process. DOE has also recently opened all of its
technical coordinating groups to States and Indian
Tribal participation. DOE is developing Facility-
Specific Outreach and Participation Plans. These
plans will detail the institutional activities to be
conducted at each site to inform and involve
affected parties in the technical activities during
site characterization. To prepare the plans, DOE
will hold discussions with representatives of the
States, Indian Tribes, and local governments to
determine what types of program information they
would like to receive and how they would like to
participate in program activities.

ANSWER (d) : DOE is currently in the process of developing
objectives for the C&C process, which will be

537

- 6 -
expressed as programmatic operating principles.
These, in turn, will specify actions and activities
that DOE will conduct, with the actions tied to
program milestones whenever appropriate.

538

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 9: Site Characterization

a. The schedule laid out in the Mission Plan
amendments stretches out completion of site
characterization by about 3 to 4 years.

— When does DOE plan to begin drilling of
exploratory shafts at the three sites?

— What still remains to be done at each of
the three sites prior to sinking shafts?

b. DOE has Ifeen barred by Congress from drilling
at the three sites in fiscal year 1987.

— At the time this prohibition was enacted
DOE assured members of the Appropriations
Committees that the prohibition would not
disrupt Fiscal Year 1987 characterization
activities. You now seem to be saying
that the prohibition has forced you to
forego drilling that you would otherwise
have undertaken in FY 1987. What has
changed?

c. Describe the stop-work orders issued at the
first repository sites. How have stop-work
orders issued to contractors affected the time
schedules?

— Were the stop-work orders a major factor
in the delays?

d. How have these schedule changes affected DOE's
ability to retain contractors and quality
personnel at the three sites?

— Has there been sufficient work to be done
at the sites? Describe this work for each
site.

e. Site characterization was originally
envisioned to last 3 to 5 years and to cost
under $100 million per site. DOE now says
site characterization will continue for 6 to 7
years and will cost several hundred million
dollars.

— What accounts for the change between

current estimates and original estimates
Please be specific.

■7

539

- 2 -

— How does this schedule delay affect the
costs of site characterization?

ANSWER 9a: As indicated in the draft Mission Plan Amendment,

construction of the exploratory shafts is

scheduled to start as follows:

Tuff Second quarter 1988

Basalt Third quarter 1988
Salt Fourth quarter J 989

Before proceeding to sink, exploratory shafts at
any candidate site, the site characterization plan
for that site must be made available to the public
and public hearings must be held in the vicinity
of the candidate site to inform the area residents
of the plan and to receive their comments. In the
case of the Basalt Site, extensive geohydrologic
tests are required prior to start of the drilling
of the exploratory shafts into the basalt. The
scope and plans for these tests are currently
being discussed with the NRC, USGS, and affected
States and Indian Tribes. The scope as finally
established could require an alteration in the
exploratory shaft construction schedule at the
Basalt Site. As a result, DOE is now preparing a
contingency plan to alter exploratory shaft

540

- 3 -

construction sequences to maintain the Amendment
schedule for in-situ testing as well as the
planned date of the third quarter of 1988 for
start of exploratory shaft construction. At the
Salt site, site preparation, drilling of freeze
holes, shaft freezing, hoist house and hoist
installation, shaft collar installation, and
construction of supporting facilities remain to be
done prior to shaft sinking. At the Tuff site,
site preparation and construction of supporting
facilities remain to be done prior to shaft
sinking.

ANSWER 9b: As indicated in the draft Mission Plan Amendment,
the DOE had planned to start sinking exploratory
shafts at the candidate sites in Nevada and
Washington before the end of fiscal year 1987 and
had scheduled for December 1986 the publication of
the site characterization plans for these sites.
In response to the budget-related delay and other
factors, the DOE decided to use the additional
time to implement more thoroughly the issues
hierarchy and the issue-resolution process. '.-Thile
this approach was needed Co help ensure chat Che
site characterization plans were of che required
quality, it did require revisions in the schedule

541

- 4 -

for the plans. As a consequence, the start of
exploratory shaft construction at the Nevada and
Washington candidate sites had to be rescheduled.

ANSWER 9c: In early 1986, DOE offices at both Richland,
Washington, and Las Vegas, Nevada, conducted
quality performance audits of their contractors
performing work related to the Yucca Mountain and
Hanford sites. The purpose of the audits was to
determine if the contractors technical and
management controls and procedures were ready for
the transition to the site characterization phase
in the event that these sites were selected for
characterization. A general upgrading of
procedures and controls was necessary for site
characterization activities to satisfy NRC
requirements for establishing a licensing basis.
Nuclear Waste Policy Act requirements, and DOE
requirements for a major project acquisition.

DOE issued a stop work order to the principal
contractor at Hanford on May 1, 1986, because
technical and management controls and procedures
that previously were in use, had been upgraded, or
were in the process of being upgraded still did
not attain the standards required for the site

77-10A 0-87-18

542

- 5 -

characterization phase. Only part of the work at
Hanford was stopped. For example, work
representing a large investment, that would be
lost in entirety by stoppage, such as a test in
progress, was continued. Safety-related activity
and Site Characterization Plan preparation were
continued. Immediately upon issuance of the stop
work order, an intense and accelerated effort was
initiated by the contractor to write procedures,
install controls, and train personnel in the use
of these procedures and controls. All people
associated with stopped work have been involved,
on a continuous basis, in the ccmpaign to meet the
conditions required for lifting of the stop work
order.

Similarly, DOE issued stop work orders, from
April 28, 1986, to July 7, 1986, to several of
the contractors and laboratories supporting the
Yucca t-Iountain activity. Generally, the same
reasons were involved, i.e., technical and
management controls were not consistent with the
quality assurance provisions established for the
site characterization phase. As at Hanford, only
part of the work was stopped, and all people
associated with stopped work were assigned

543

- 6 -

immediately to development of the required
procedures and controls and to intensified quality
assurance training. Preparation of the Yucca
Mountain Site Characterization Plan was continued.

The stop work orders are gradually being lifted on
specific work at both sites when DOE becomes
convinced that quality assurance requirements are
satisfied. The specific work stopped generally
incurs a day-for-day slippage but that does not
translate to an equivalent overall program
slippage. The amount of slippage in the overall
schedule that is attributable solely to the stop
work orders cannot be determined. Work may not
proceed without proper management controls and
procedures so any schedule must accommodate
installing these controls and procedures.

ANSWER 9d: The major portion of the staffs at all three sites
have been involved in preparation of the Site
Characterization Plans and associated study plans.
This is an intensive effort with personnel working
long hours to complete these documents on
schedule. Other major efforts involve ongoing
site characterization activities for the Basalt

544

- 7 -

and Tuff sites, relocation of the Salt Project
Office to the candidate site area, and development
of the quality assurance program for all three
candidate sites. There is more than sufficient
work, underway at the candidate sites to saturate
available manpower.

The schedule changes have not had any known effect
on doe's ability to retain contractors. No more
than normal rates of attrition have been observed
in the staffs at the three sites. There have been
no difficulties in retaining quality personnel
and in replacing people who have left with those of
at least equivalent capability.

545

Question 9e: Site characterization was originally envisioned to
last 3 to 5 years and to cost under $100 million
per site. DOE now says site characterization will
continue for 6 to 7 years and will cost several
hundred million dollars.

— What accounts for the change between current
estimates and original estimates? Please be
specific.

— How does this schedule delay affect the costs of
site characterization?

Answer 9e: Several significant items have contributed to an

increase in the estimate of costs for site

characterization. These items include:

o More accurate estimates of the costs for

construction of exploratory shaft facilities
based on the more detailed designs that have been:
developed. The current exploratory shaft designs -
are considerably different from the designs
originally envisioned.

o The addition of a second exploratory shaft at
each of the candidate sites, primarily for
personnel safety reasons.

o The increased understanding of technical

requirements that will have to be satisfied in
order to support the site selection and licensing
process. For example, the work needed to develop
a definitive hydrologic baseline at the basalt
candidate site is significantly more extensive
than was originally envisioned.

546

o The development of more accurate schedules that
provide adequate time for consultation and
cooperation with States and affected Indian
Tribes.

o The inclusion of additional items in reporting
costs of site characterization. For example, the
original estimates did not include costs for
financial assistance to the States and affected
Indian Tribes.

A preliminary estimate of the impact of the revised
schedule described in the Draft Mission Plan
Amendment on the costs of site characterization,
i.e., all costs to the first repository program
through completion of testing required for site
selection and preparation of the draft Environmental
Impact Statement, indicates that costs would
increase by approximately $400 million.

547

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 10: a. What is the estimaced cost for characterization
of each of the three sites selected?

b. For each of the three sites, what would be the
total cost of building a repository on that
site, including the cost of characterization.
Please provide a breakdown showing major
components of the total cost at each site.

c. How would these costs be affected if the
decision were made to have only one repository
and if the size and the capacity of the
repository were increased to accommodate all the
spent fuel projected to be produced during the
life of currently licensed reactors?

d. How would these costs be affected if an MRS were
not included in the system and if all packaging
and handling activities were, therefore, carried
out at the repository?

e. DOE'S latest cost estimates indicate that the
waste program could cost as much as $41 billion
in 1985 dollars. Provide a schedule showing
these expenditures year-by-year in year-of-
expenditure dollars.

ANSWER 10a: Site Characterization Costs

OCRWM is submitting costs based on the spring 1986
Total Systems Life Cycle Cost (TSLCC) analysis.
This analysis estimated the costs of the program as
described in the June 1985 Mission Plan. The OCRWM
program is currently re-estimating costs but the
results of this effort will not be available until
later this spring.

Figure 1 (taken from Volume 1 of the 1986 TSLCC
report) lists the annual Development and Evaluation
(D&E) costs for the Authorized System in terms of
1985 dollars. A further breakdown of these costs

548

Figure 1

Table 3-2

Annual OK Costs for the Authorized Systew in the Reference Case
(Millions of 1985 dollars)

Transpor-

tation and

Socioeco-

Fiscal

First

Second

MRS

Systems

nomic Impact

Government

Year

Repository

Reposi tory

Facil i ty

Integrati on

Mi ligation

Admi ni St rat ion

Total

1983

204

226

1984

219

284

1985

221

305

1986

386

403

1987

477

—

643

1988

562

—

721

1989

483

—

631

1990

398

100

—

578

1991

151

102

328

1992

114

—

242

1993

114

—

286

1994

230

—

408

1995

258

—

418

1996

266

—

417

1997

243

—

392

1998

203

—

306

1999

—

219

—

249

2000

—

120

—

150

2001

—

106

2002

—

2003

—

130

2004

—

115

2005

—

115

2006

—

114

2007

—

114

2008

—

102

2009

—

throu

,g^

—

(a)

2030

—

2031

—

throu

igh

—

(b)

2089

—

Total

,506

2,602

~33

313

600

2.349'

9,403'

'Costs Maintained at this level through the year 2030, the last year of waste
eoplaccment.

'Costs maintained at this level through the year 2089, the last year of repository
deconnissioning.

'This estimate assumes that crystalline rock is the second-repository host rock.

549

- 2 -

ANSWER 10a: (Cont'd)

is given in Figure 2. Using Figure 2, OCRWM has
compiled the first repository site characterization
costs by candidate repository location. These
costs are:

Basalt: 738 million 1985 constant dollars
Tuff: 650 million 1985 constant dollars
Salt: 806 million 1985 constant dollars

These costs represent all the first repository
development and evaluation costs during the site
characterization phase of the program, i.e. from
Presidential approval of the candidate sites in May
1986 to the scheduled submittal of the License
Application. In summarizing these costs from Figure
2, OCRWM has used one-half of the 1986 costs and
excluded the costs associated with work performed
on the selected site in 1990-1991. These costs are
consistent with the 1987 budget submission (BO
numbers) to Congress and are in 1985 dollars.

ANSWER 10b: Site Characterization and First Repository Costs
A breakdown, by major component, of the total
repository costs at each site for the Authorized
System is presented in the table below. Also
included in this cable are the projected Site
Characterization Costs and other first repository

550

FIRST REPOSITORT DEVELOPMENT AM) EVALUATION COSTS BY SITE
(MILLIONS OF 1985 DOLLARS)

Figure 2

-WORK BREAKDOWN
<|jo^irTrgr/<;:r; logS* 1997 iq«a iggq 1990

Syittms
Basalt
Tuff
SaU
Selected Site

Wajte Packase
Basalt
Tuff

Salt
Selected Site

Site

Basal t
Tuff
Salt
Selected Site

Reposi tory
Basal t
Tuff
Salt
Selected Site

Reg/Insti tutional
Basalt
Tuff

Salt
Selected Site

Exploratory Shaft
Basal t
Tuff
Salt
Selected Site

Test Pacilities
Basalt
Tuff
Salt
Selected Site

Land Acquisition

Salt n.T 7.2 3.5 3.4 3.S 2.3

Project Management

Basalt

Tuff

Salt

Selected Site
Total

Basalt

Tuff

Salt

Selected Site

GRAND TOTAL 386.5 477.0 561.9 483.1 398.3 150.6

" Due to Presidential approval of candidate sites taking place in May 1986. one-half of

the 103£ cosis -ere assumed to be part of the site characternat i on p4>ase.

* Costs for selected site are excluded from site characterization phase.

7.2

5. a

6.4

8.2
6.2
6.2

8.4
7.0
5. 5

8.5
5.3
4.7

8.5
5.7
3.5

5.S
3.7
2.3
2.2'

19.3
8.7
8.9

19.2
9.6
3.9

13.2
7.5
7.7

18.6
7.1
6.8

12.0
3.6
3.8
3.2"

8.4"

29.5
37.9
60.9

37.4

55.1
37.5

37.2
41.3
63.3

23.5
33.3
26.5

24.9
25.2
37.9

3.2

6.7

6.3

10.5'

20.5
14.4
23.1

23.7
20.7
32.0

34.9
29.5
45.9

41.8
32.3
42.3

29.9
23.1
24.5
3.7»

11.0'

12.5
8.4

18.7

12.8
11.2

20.3

14. S
12.3
24.0

17.5
13.6
23.5

18.2
14.1
22.6

5.5

4.5

6.1

10.4'

17.2
17.1
13.0

38.9
33.5
38.5

58.3
40.5
55.0

35.1
23.1
65.0

44.6
16.1
24.0

2.4

0.9

2.9

15.7'

3.7
0.9
1.1

2.3
0.7
1.3

2.8
0.5
1.2

2.3
0.4
0.6

2.8

0.4

0.6

1.9
0.3
0.4

• 0.4'

8.4

8.6

8.4

5.5

17.2

19.6

22.5

21.5

20.3

13.8

10.4

11.4

11.5

11.6

7.7

4.5'

118.3

156.6

182.7

161.2

149.3

29.0

109.6

156.6

161.1

137.6

110.0

30.0

158.6

163.8

218.1

184.3

132.1

23.5

6.7°

63.1

551

- 3 -

ANSWER 10b; (Cont'd)

development and evaluation costs projected to occur
after the President's mid- 1986 approval of the
three candidate sites.

Total Repository Cost by Site for the Authorized System
(1985 dollars X 10^ )

Site*

Other

1st

1st Rep

Site Specific

Site

Char.
738

Rep D&E
1312

Constr .
2180

Oper.
8890

Decom.

270

Total

Basalt

13390

Tuff

650

1312

1230

4670

110

7972

Salt

806

1312

2010

5690

250

10068

* It should be noted that the total amount listed in this
column will be spent regardless of which site is chosen.
That is, all three sites will have to be characterized in
order for one site to receive Presidential approval.

ANSWER 10c: Single Repository Costs

The following Table contains estimates for a single
repository for the disposal of 87,449 MTU of
commercial spent fuel (No New Orders - Constant
Burnup Case) and 8000 MTU of DHLW. These costs are
based on the April 1985 TSLCC analysis and were
prepared in mid- 1986.

Since a single repository is not part of our
planning base, these estimates are not based upon

552

- 4 -

ANSWER 10c: (Cont'd)

Che same level of detail as the two repository
system estimates used for program planning.

The No New Orders Case includes those reactors
currently licensed and those that are currently at
least 40% constructed and expected to be completed.

Single Repository Costs
(millions of 1985 dollars)

Site(*)

Other 1st

1st Rep

Site Specific

Media

Char.
738

Rep D&E
1312

Constr .
2439

Oper.
11972

Decom.
305

Total

Basalt

16766

Tuff

650

1312

1271

6131

115

9479

Salt

806

1312

2252

7658

274

12302

* It should be noted that the total amounts listed in this
column will be spent regardless of which site is chosen.
That is, all three sites will have to be characterized in
order for one site to receive Presidential approval.

ANSWER lOd: First Repository and MRS Costs

Following is a Table of first repository costs,
with and without an MRS, taken from the
Department's April 1986 TSLCC report. These costs
estimates assume the EIA Mid-Case spent fuel
projections and are currently being updated.

553

- 5

First Repository Costs with and without an MRS
(millions of 1985 dollars)

Without an MRS

With an MRS

1st Rep

Media

Constr .

Oper .

Decom.

Total

Constr.

Oper.

Decom.

Total

Basalt

2180

8890

270

11340

1840

8150

220

10210

Salt

2010

5690

250

7950

1600

5090

190

6880

Tuff

1230

4670

110

6010

980

4300

5350

ANSWER lOe: Year-by-Year Cost Schedule

The 1986 TSLCC analysis computed costs for 32 cases;
sixteen for the currently Authorized System and 16
for the Improved Performance System. Ten of each
set of 16 cases are reference cases while the
remaining 6 were sensitivity cases. The sensitivity
cases examined the potential impact of such factors
as a significant change in the amount of spent fuel
to be emplaced and potential delays in repository
construction. The total costs for each of these 32
cases are given in the accompanying Tables 8-1 and
8-2. The case totaling 41 billion dollars
represents a sensitivity case that assumes the
Improved Performance system, a 10 year repository
delay, and the highest cost media pair. This is the
"upper bounding" case scenario examined by the Department
in its 1986 TSLCC analysis. The year by year schedule
of expenditures for this case is given in Table
C-31. (These tables are taken from the 1986 TSLCC
report which is currently being updated.)

554

Table 8-1

Summary of Total-System Life-Cycle Cost Estimates
for the Authorized System

(Billions of 1985 dollars)

Reoosi torv-Si te Combination

Transpor-

J2i£ tation First

Repository

Second Subtotal

At-
Reactor
Storage

Grand

Total'

REFERENCE CASES (EIA MIOCASE)

Basalt/crystalline (high)
Basalt/salt
Basalt/tuff

Basalt/crystalline (low)
Salt/crystalline (high)
Salt/salt

Salt/crystalline (low)
Tuff/crystalline (high)
Tuff /salt
Tuff/crystalline (low)

Basalt/crystalline (high)
Tuff/crystalline (low)

9.4

2.1

11.3

9.5

20.8

9.4

2.2

11.3

7.1

18.4

9.4

2.5

11.3

5.6

16.9

9.4

1.8

11.3

6.5

17.8

9.4

1.7

7.9

9.5

17.4

9.0

1.9

7.9

7.1

15.0

9.4

1.5

7.9

6.5

14.4

9.4

2.0

6.0

9.5

15.5

9.0

2.1

6.0

7.1

13.1

9.4

1.8

6.0

6.5

12.5

SENSITIVITY CASES
EIA "No New Orders" Case

32.3
29.9
28.8
29.0
28.5
26.0
25.3
26.9
24.3
23.6

9.3 1.6 9.9 7.7
9.3 1.4 5.3 5.3

17.6
10.6

—

28.4
21.3

5-Year Reoository Delav (EIA Midcase)

20.8
12.5

2.7
2.7

10.1 2.1 11.3 9.5
10.1 1.8 6.0 6.5

35.7
27.0

10-Year Reoositorv Delav (EIA Midcase)

Basalt/crystalline (high)
Tuff/crystalline (low)

10.8
10.8

2.0

1.8

11.3
6.1

9.9
6.8

21.2
12.9

4.9
4.9

38.9
30.4

'Cost categories nay not add to total because of independent rounding.

-78-

555

Table 8-2

Sumnary of Total-System Life-Cycle Cost Estimates
for the Improved-Performance System

(Billions of 1985 dollars)

Rennsi torv-Site Combination

Basalt/crystalline (high)
Basal t/sal t
Basalt/tuff

Basalt/crystalline (low)
Salt/crystalline (high)
Salt/salt

Salt/crystalline (low)
Tuf f /crystall ine (high)
Tuff /salt
Tuff/crystalline (low)

Transpor- Rpoosi torv

O&E tation First Second Subtotal

HRS

At-
Reactor
Storage

Grand
Total'

REFERENCE CASES (EIA MIDCASE)

9.5

1.9

10.2

9.5

19.7

2.8

9.5

2.1

10.2

7.1

17.3

2.8

9.5

2.3

10.2

5.6

15.8

2.8

9.5

1.8

10.2

6.5

16.7

2.8

9.5

1.9

6.9

9.5

16.4

2.8

9.2

2.0

6.9

7.1

14.0

2.8

9.5

1 .7

6.9

6.5

13.4

2.8

9.5

2.2

5.4

9.5

14.9

2.9

9.2

2.3

5.4

7.1

12.5

2.9

9.5

2.0

5.4

6.5

11.9

2.9

34.0

31
30

30.8

30.6
27.9
27.4
20.4
26.7
26.2

SENSITIVITY CASES

Basalt/crystalline (high)
Tuff/crystalline (low)

9.4 1.6 10.2 6.8 17.0
9.4 1.7 5.3 4.8 10.1

5-Year Reoository Delay (EIA Midcase)

2.8
2.9

3.1
3.1

3.3
3.3

2.1
2.1

3.9
3.9

30.9
24.2

10.3 2.0 10.2 9.5 19.7
10.3 2.0 5.4 6.5 11.9

10-Year Heoositorv Delay (EIA Midcase)

37.2
29.4

10.9 2.0 10.5 9.9 20.4
10.9 2.1 5.5 6.8 12.3

40.5
32.6

•Cost categories may not add to total because of independent rounding.

-79-

556

T«b1t C-31

Annu«1 Total -Sjrsteai Costs for th« Iiiproved-PerfonMncc System with the EIA

Midcaso Forocast, a 10-Year Repository Delay, First Repository in Basalt

and Second Repository in High-Cost Crystalline Rock

(Millions of 198S dollars)

At-Reacter

MRS

First

Second

Trans-

Year

0«E*

Storage"

Facility'

Repository*

Repository"

portation*

Total

1963

226

1964

284

1985

305

•

305

1986

478

1987

583

591

1988

669

690

1989

635

659

1990

516

536

1991

401

436

1992

333

125

458

1993

327

149

476

1994

214

149

363

1995

353

166

494

1996

364

564

1997

364

186

501

1998

332

t«1

126

703

1999

286

118

256

763

2000

319

127

369

769

2001

264

127

358

769

2002

236

309

632

2003

212

272

590

2004

176

228

509

2005

164

104

193

591

2006

156

227

138

578

2007

156

228

541

2006

131

226

578

2009

22i

159

634

2010

116

228 .

159

278

871

2011

107

229

159

333

917

2012

107

229

159

386

970

2013

107

229

206

333

999

2014

105

233

266

293

1063

2015

105

234

268

245

990

2016

104

234

266

288

957

2017

104

234

268

140

886

2016

t6C

268

168

853

2019

268

154

656

2020

268

154

594

2021

268

154

593

2022

268

154

603

2023

2«

268

193

672

2024

241

258

163

735

2025

241

258

706

2026

241

258

694

2027

241

256

637

2028

'£41

258

646

2029

241

256

636

2030

241

256

644

2031

241

256

692

2032

139

258

540

2033

256

388

2034

232

373

2035

232

351

2036

232

351

2037

232

345

2038

232

341

2039

232

348

2040

176

265

2041

C-66

557

Table C-31 (continued)

Annual Total-System Costs for the Improved-Performance System with the EIA

Midcase Forecast, a 10-Year Repository Delay, First Repository in Basalt

and Second ft epos i tory in High-Cost Crystal 1 ine Rock

{Millions of 1965 dollars)

At-Reactor

MRS

First

Second

Trans-

Ye»r

04E*

Storage"

Facility'

Repository"

Reposi tory"

portation"

Total

2042

2043

2044

2045

2046

2047

2048

2049

20S0

2051

2052

2053

2054

2055

205«

•

2057

2058

2059

2060

2061

2062

2063

2064

2065

2066

2067

2068

12a

2069

•

• 53

128

2070

128

2071

12a

2072

120

2073

120

2074

120

2075

12a

2076

12a

2077

120

2078

120

2079

128

2060

120

2081

120

2082

120

2083

120

2084

120

2085

120

2086

12a

2087

120

2088

2089

101

2090

123

2091

134

2092

112

2093

2094

2095

20%

2097

C-67

558

Table C-3T (continued)

Annual Total-System Costs for the Improved-Performance System with the EIA

Hidcase Forecast, a 10-Year Repository Delay, First Repository in Basalt

and Second Repository in High-Cost Crystalline Rock

(Millions of 1985 dollars)

Year

D&E'

At-Reactor
Storage"

MRS
facil i ty'

First
Repository"

Second
Repository"

Trans-
portation*

Total

2098
2099

15
15

0
0

71
47

0
0

86
62

Totals

10.939

3,887

3,276

10.493

9.938

1.998

. 40,531

*The DftE (development and evaluation) cost category covers (1) all siting, design, testing, regulatory,
and institutional activities associated with the repositories, the MRS facility, at-reactor storage, and the
transportation system; (2) the costs of mitigating socioeconomic impacts; and (3) the costs of program
administration until both repositories are decommissioned.

"The at-reactor storage cost category covers the capital costs of dry storage, operation, and
maintenance.

'The MRS cost category covers engineering (i.e.. Title II and Title III design), construction,
operation, and decommissioning.

"The repository cost category covers engineering (i.e.. final procurement and construction design as
well as Title III design), construction, operation, and closure and decommissioning.

'The transportation cost category covers the purchase of shipping casks and the operation of the
transportation system.

C-68

559

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 11:

DOE'S budget request submitted to Congress includes
$500 million for fiscal year 1988. The budget
justification provided, however, explains how the
Department would spend $725 million.

— When does DOE intend to submit a budget amendment
to Congress requesting the full $725 million?

— Please provide details on how DOE would allocate
an appropriation of $500 million, task by task,
within the program.

— In DOE'S view, what would the Department be

unable to do in fiscal year if only $500 million
were appropriated?

ANSWER :

The Department intends to submit a budget
amendment in the very near future to facilitate a
concurrent review of the draft Mission Plan
Amendment and the resources required to carry out
the FY 1988 activities in support of the program
described therein.

The table below reflects a possible allocation of
$500 million by task, within the Nuclear Waste Fund
program. This allocation is currently under review
to identify adverse impacts resulting from a $500
million FY 1988 funding level. Efforts to minimize
these impacts could result in a change to this
preliminary allocation.

560

- 2 -

FY 1938 BA

($ in millions)

First Repository $375.09

Second Repository 16.55

MRS 39.50

Transportation and Systems 42.95

Integration

Program Management and 43 .91

Technical Support

TOTAL $500.00

In Fiscal Year 1988, if only $500 million were
appropriated, the revised program schedule, and
planned accomplishments developed in support of the
Mission Plan Amendment would not be achieved.
Listed below, by program, are the specific accom-
plishments which would likely be delayed.

First Repository;

The exploratory shaft construction at the tuff and
basalt sites would likely be delayed; final design
of the exploratory shaft at the salt site would
also likely be delayed; the intensive surface-based
site characterization activities would be
significantly reduced at all three sites; and the
waste package and repository advanced conceptual
design, and associated testing and development
effects, could also be delayed. These delays would
result in a slip in the schedule contained in the
draft Mission Plan Amendment. Additionally,
financial assistance to affected States and Indian
Tribes might have to be reduced below the levels

561

- 3 -
previously discussed with them, making institu-
tional relations more difficult.

Second Repository;

The cooperative international activities in support
of the Second Repository program would not be
implemented as presently defined.

Monitored Retrievable Storage (MRS) ;
The operation of the MRS is linked to the
construction authorization for the First Repository
which would be further delayed by the funding
reduction at the $500 million level. The MRS
schedule would, therefore, slip past the first
quarter of 1998 to begin acceptance of high-level
waste/spent nuclear fuel, and it would no longer be
possible to begin receiving fuel in 1998 through
the MRS.

Transportation and Systems Integration:
Transportation activities and cask procurement
would be delayed approximately one year.

562

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 12 : Payment of Licensing Fees to NRC

NRC has prepared a draft legislative proposal to amend
Section 161 of the Atomic Energy Act of 1954 to permit
the Commission to charge DOE user fees to recover NRC's
costs in carrying out its responsibilities under the
Nuclear Waste Policy Act of 1982.

— Does DOE believe that legislation is necessary for
NRC to recover these costs from DOE? Explain.

— What is DOE'S position on the NRC legislation?
Please elaborate.

ANSWER:

The Department of Energy does not believe that
legislation is necessary to permit the Nuclear
Regulatory Commission (NRC) to recover licensing costs.
The Department concurs with the Department of Justice
opinion expressed in the February 4, 1987, letter from
John R. Bolton, Assistant Attorney General, to James C.
Miller, III, Director, Office of Management and Budget.
The letter states:

"In summary, the Department believes that the Nuclear
Waste Policy Act imposes an obligation on NRC to set
forth a fee schedule for its necessary services in
reviewing DOE's license application for the repository.
The Act imposes a corresponding obligation on
the Secretary of Energy to make expenditures from the
Nuclear Waste Fund for all necessary costs of the
repository program, including licensing."

As stated above, DOE does not believe legislation is
required. Other mechanisms for accomplishing the
payment of licensing fees are available. The
Department of Justice letter cited above states:

563

- 2 -

"It is our understanding that several mechanisms,
including a rulemaking, joint rulemaking, or memorandum
of agreement have been identified for implementation of
NRC's and DOE's mutual obligations regarding licensing
expenses under the Nuclear Waste Policy Act. We defer
to the agencies' judgment as to the best mechanism to
fulfill their respective responsibilities."

564

QUESTION 13a:

ANSWER:

QUESTIONS FROM SENATOR JOHNSTON

Describe the consultation and concurrence
activities undertaken by the Department in
Tennessee in connection with the MRS proposal.
Describe the principal contentions of the State
of Tennessee and DOE's responses to those
contentions in the litigation over submittal of
the MRS proposal to Congress.

The DOE began a process of consultation and

information exchange with the State of Tennessee

on April 25, 1986, the date of announcement of

three sites as candidates for study for an MRS

proposal. Since that time DOE has participated

in over 80 meetings, hearings, presentations and

debates in the process of consultation and

information exchange.

The DOE worked closely with the State in
development of the MRS proposal . This
interaction has principally been through the
Governor's Safe Growth Council. To support the
State in review of the proposal, DOE provided a
grant of $1.4 million. The State in turn
provided $100,000 each to two local community
groups to study the MRS proposal. The State and
both local groups provided comments and/or
reports to DOE on the proposal. The DOE
attempted to respond to a number of those
comments with changes to the final proposal.

565

- 2 -

ANSWER 13a: (Cont'd)

The United States Court of Appeals for the Sixth

Circuit summarized the contentions of the State

and DOE in the November 25, 1986, decision in

favor of the Department in the following manner:

This case presents for review two issues of
statutory construction: (1) whether the
federal courts of appeals have original
jurisdiction to review the actions of the
Secretary of Energy ("Secretary") regarding
his compliance with the consultation and
cooperation requirements of the Nuclear Waste
Policy Act of 1982, 42 U.S.C. Sec. 10101 et
seq. ("NWPA" or "Act") with respect to
Monitored Retrievable Storage ("MRS")
facilities; and (2) whether the NWPA requires
the Secretary to consult with any state before
he sends Congress his proposal for the
location and construction of one or more MRS
facilities. We hold that the federal courts
of appeals have original jurisdiction over
actions involving the consultation and
cooperation requirements applicable to MRS
facilities under the NWPA. We further hold
that the NWPA does not require the Secretary
to consult with any state before he sends
Congress his proposal for the location and
construction of one or more MRS facilities.
... (Opinion of Sixth Circuit, 11/25/86)

The Department believes it has, therefore, gone

well beyond the requirements of the Act in its

interactions with Tennessee prior to planned

submittal of the proposal.

On March 30, 1987, the U.S. Supreme Court denied
Tennessee's petition for certiorari, which freed
the Department to submit the proposal in accord-
ance with the favorable circuit court ruling.
The proposal was submitted on March 31, 1987.

566

QUESTION 13b:

ANSWER:

QUESTIONS FROM SENATOR JOHNSTON

Has DOE revised its monitored retrievable
storage proposal since the Deceiaber 1985 draft
to reflect the years delay in its submission to
Congress or to reflect the increased emphasis
given to the MRS in light of the 5 year delay in
repository operation?

— If so, how?

— If not, why not?

The Department has updated the proposal that was

available for submission to Congress in February

1986. The February 1986 version was withheld

from submittal by the Department due to

continuing litigation. The Department has

reviewed its analysis of the need for

MRS and believes that previous arguments

presented and conclusions reached are still

valid in light of the programmatic changes that

have occurred over the past year.

567

QUESTION 13c:

ANSWER:

QUESTIONS FROM SENATOR JOHNSTON

In the December 1985 draft MRS proposal, weren't
the benefits of an MRS calculated in terms of a
two repository system? How does the
postponement of the second repository weaken or
strengthen the arguments?

— Would it be appropriate to reevaluate the MRS
proposal to reflect these changes since
December 1985?

— Would it be appropriate to include additional
discussion in the MRS proposal of the need to
work out appropriate concessions and
incentives that would be available to the host
State?

The analysis of the need for MRS, that was

provided in the December 1985 Review Copy and in

the final proposal submitted to Congress, did

not assume any relationship between the MRS and

the second repository. All the presented

benefits of MRS were based on the MRS servicing

only the first repository. As a result, the

Department does not believe that any changes to

the proposal are necessary in this area.

Regarding the question as to whether the

Department should include additional discussion

in the proposal addressing the need to work out

appropriate concessions and incentives that

would be available to the host State, the

Department has outlined in detail in the

proposal how it proposes to consult and

cooperate with the MRS host State to accommodate

State and local concerns. The Congress

certainly has the prerogative to add to the

568

- 2 -
ANSWER 13c: (Cont'd)

Department's proposal in this regard. More
detailed presentations in this area, consistent
with any limitations or guidance provided by
Congress, can also be reserved for the formal
consultation and cooperation discussions that
will occur between the host State and the
Department, should the MRS be approved by the
Congress. Subsequently, formal revisions to
this area of the written proposal are not being
actively considered by the Department at this
time.

569

QUESTION 13d:

QUESTIONS FROM SENATOR JOHNSTON

How could the argximents for an MRS be
strengthened in light of DOE's experience of the
last year?

ANSWER:

In view of delays in the first repository, the
position of the MRS in the waste management
system became critical to the Department's
ability to accept spent fuel from utilities in
1998. As a result, besides affording the system
the many programmatic and institutional benefits
that have been previously analyzed, the need for
MRS now is strengthened.

Having an MRS as an integral, and early, part of
the system can also contribute to regional
equity and timing considerations for the second
repository.

570

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 13e:

ANSWER:

The schedule included in the June 1985 Mission
Plan assumed Congressional authorization of the
MRS proposal by the fall of 1986, submittal of a
license application to NRC by early 1989, and
issuance of a license by NRC by 1991.

— How has the MRS schedule been adjusted to
account for delays thus far?

Assuming that the Congress authorizes the MRS

during FY 87, and adjustments are made in the

overall project schedule, the Department

projects that a license application could be

submitted to NRC by early 1990. NRC could then

issue a license for the MRS during 1992 or 1993.

Construction on the facility would then begin

and extend over a four year period ending in

1996 or 1997. Under these circumstances, the

MRS could then begin to operate and accept spent

nuclear fuel by the time the repository is

projected to receive a construction

authorization in the first quarter of 1998.

571

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 13 f:

ANSWER :

What will DOE do if the MRS is not approved or
if it is not ready in time to meet the
January 31, 1998 commitment to take spent fuel
from the utilities?

If the MRS is not approved or if it is not ready

by January 31, 1998 to take spent fuel from the

utilities, the utilities would continue to be

responsible for storing the spent fuel at the

reactor sites until the authorized federal

waste management system was available to take

the spent fuel. The DOE will continue to

conduct those authorized activities that will

lead to a capability to safely and permanently

dispose of the spent fuel as soon as possible.

572

QUESTION 15;

QUESTIONS FROM SENATOR JOHNSTON

a: A question was asked at the February 5 hearing
whether NRC had ever approved a transport cask
design submitted by DOE. Please clarify for the
record the status of any license applications
submitted to NRC by DOE. In each case, please
include:

— when the license application (or topical safety
analysis report, as appropriate) was submitted to
NRC;

— what the major issues are still to be resolved;

— how long DOE anticipates licensing will take;

— whether the cask has been previously approved
through DOE's "certificate of compliance"
process; and

— how long did it take for completion of DOE's
review to issue a certificate of compliance.

b. What are DOE's estimates of the cost of
transport cask licensing by NRC?

— Please include total program cost estimates as
well as a per cask estimate, based on licensing
fees, etc.

— Do the per cask estimates vary according to
cask size and capacity?

c. Does DOE plan to underwrite the cost of NRC
licensing of transport casks under its
transportation business plan? Explain.

ANSWER 15a:

Although DOE may certify its own packages, there
are a variety of DOE packages having NRC
certificates. There are at least three spent fuel
casks now in service with both DOE and NRC
certificates. Charles MacDonald, Chief of the NRC
Transportation Certification Branch, was
interviewed about this question on 2-23-87.
The following is a summary of that interview,

573

- 2 -

ANSWER 15a: (Cont'd)

supplemented with additional information where
appropriate.

DOE has the following designs under the review
process at the present time. These designs are:
the TN-BRP and the TN-REG, both casks that would
be used in support of West Valley shipments; the
ORNL/HFIR cask; and the MHIA cask. Two
applications by ORNL that had been submitted
earlier were withdrawn by ORNL in Jan. 1987 (the
ORNL/LOOP cask and the ORNL/GARDEN cask) . There
are three Division of Naval Reactors applications
that are presently under review by NRC (the M-130,
A1W3, and the DIG casks).

The certificate application process can be
protracted. Some of DOE applications cited above
have requests for information that date to the May
1985 time period. These requests for information
are submitted by the NRC to the applicant; the
applicant varies with the different DOE-owned
casks, and is noted for each cask on Table 1. For
example, requests for information by the NRC were
made for the TN-BRP cask on 2-12-86 and similarly
a request was made by NRC for information on the
TN-REG cask on 10-22-85 (the TN-BRP and the TN-REG
casks are similar in design). The NRC's concerns

77_10A 0-87-19

574

- 3 -

ANSWER 15a: (Cont'd)

were with the designs of the basket and impact
limiters; Sandia is currently in the process of
analyzing these designs. A request for
information on the ORNL/HFIR cask was requested by
NRC on 10-3-85. Because of unresolved questions
concerning structural aspects, and the uncertainty
that the expenditure of significant funds would
enable resolution of those questions, the DOE has
decided to procure a new ORNL/HFIR cask in lieu of
the earlier one. The new cask should be
fabricated by the end of 1987. Finally, a request
for information on the MHIA cask was requested on
5-31-85. General concerns were voiced about the
structural integrity of the cask in an accident
environment to maintain containment and in a
normal environment because the load limiters were
too stiff. The DOE continues in its attempt to
address these concerns. In each of these requests
for additional information, the dates are as given
above, but in each case, there has been no
response to the NRC by the applicant. It should
be noted that the casks mentioned above are
considered by the NRC to be the "DOE casks" that
are still in the certificate application process.
The applications for these casks have not been
denied.

575

- 4 -
ANSWER 15a: (Cont'd)

Table 1 summarizes all of the DOE owned, currently-
certified (by either NRC or DOE) spent fuel
packagings that are used to support DOE spent fuel
transport operations.

ANSWER 15b: NRC has established a fee structure where the
commercial applicant for a cask certificate of
compliance is charged by the number of hours taken
to review the design submitted. At the present
time there is a cap of $170,000 that may be
charged for each cask application being evaluated.
Typically, NRC charges are expected to be less
than the maximum amount.

Under present NRC policy, an application for a
certificate of compliance that is filed by a
government agency is fee exempt. However, a
letter from DOJ to 0MB (John R. Bolton, Assistant
Attorney General to James C. Miller, III,
Director) stated that DOJ believes the NWPA
imposes an obligation on NRC to set forth a fee
schedule for its necessary services and a
corresponding obligation on DOE to make
expenditures from the NWF for licensing costs.
DOE plans to reimburse NRC for its licensing
costs.

ANSWER 15c: As explained in 15b above.

576

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577

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 15d:

ANSWER:

DOE plans to use Transnuclear Inc.'s TN-BRP cask
(owned by Nuclear Fuel Services) to transport fuel
from the West Valley Demonstration Project to the
Idaho National Engineering Laboratory under a
cooperative demonstration project.

How have delays in NRC's licensing of the TN-BRP
effected the schedule for removal of fuel from
West Valley, the overall cleanup schedule for West
Valley, or the Idaho dry storage demonstration
program?

Nuclear Fuel Services fulfilled its cost shared

contractual agreement with the DOE when it

delivered two casks to West Valley, New York.

These casks, the TN BRP and the TN REG, are now

owned by the DOE and are at West Valley awaiting

NRC certifications before shipment of fuel to the

Idaho National Engineering Laboratory. The delays

in certification have had no impact on either the

West Valley Project or the Idaho dry storage

demonstration program. The Idaho Operations

Office manages all three of these projects and a

continual schedule evaluation is carried out at

the Idaho Operations Office to assure that windows

of availability and non-interference between

project activities are defined. The present

estimates for non-interference with West Valley

Operations are: Loading of casks prior to

September 1987 or after WVP size reduction

activities but before 1991. There is no impact on

dry storage demonstration projects.

578

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 16;

ANSWER:

Please provide an update on the status of DOE's
cooperative programs with utilities to demonstrate
dry storage, rod consolidation, and transportation.

DOE has three Cooperative Agreement (Sec. 218 NWPA)

programs with utilities. Two are for NRC licensed

dry storage demonstrations and one for an NRC

licensed in-pool consolidation demonstration, all

at the utility reactor sites. In addition, DOE has

supported some cost shared, in kind, projects for

unlicensed in-pool rod consolidation. The three

(Sec. 218 NWPA) Cooperative Agreement

Demonstrations are with: Virginia Power

(Independent Spent Fuel Storage Facility using

metallic dry storage casks at the Surry site) ;

Carolina Power and Light (Independent Spent Fuel

Storage Facility using horizontal concrete silos

for dry storage at the J. B. Robinson Site; and

Northeast Utilities Service Corporation (In-pool

rod consolidation demonstration at the Millstone II

site) .

Virginia Power obtained a license from the NRC in
July of 198 6 for its Independent Spent Fuel Storage
Facility and it is now operational with three GNS-
Castor V/21 casks storing 21 assemblies each.

Carolina Power and Light received its Independent
Spent Fuel Storage Installation License in August

579

- 2 -

ANSWER 16: (Cont'd)

of 1986. The utility is now in the process of
applying for amendments to the license for minor
material changes to the technical specification.
Modules have been constructed and operations are
expected to begin as soon as the license amendment
and storage canister topical report amendments are
approved by the NRC. This is estimated to be
toward the end of the FY87.

The Northeast Utilities Service Corporation
completed its cold consolidation demonstration at
the Combustion Engineering Facility in Windsor
Locks, Connecticut in December 198 6 and is now in
the process of installing the equipment in the
Millstone II pool. It expects the amendment to its
Millstone II Operating License for the storage of
consolidated fuel in the Millstone II pool by
April, 1987.

Two cost shared unlicensed demonstrations with
Rochester Gas and Electric (RG&E) were also
completed this past year. At the West Valley Pool,
six Ginna reactor assemblies were consolidated
using NAC corporation equipment and eventually
achieved a 1.8:1 consolidation. At the Battelle
Columbus Laboratory Pool, five Ginna assemblies
were consolidated utilizing U.S. Tool and Die

580

- 3 -

ANSWER 16: (Cont'd)

equipment. A consolidation ratio very close to 2:1
was achieved. In each case the consolidated fuel
was returned to the RG&E Ginna facility.

An early DOE-TVA Interagency Agreement to
consolidate twelve boiling water reactor (BWR)
assemblies at the Browns Ferry Facility has been
indefinitely postponed pending resumption of and
non-interference with operations at the Browns
Ferry Plant.

There are no NWPA cooperative programs with
utilities to demonstrate the transportation of
fuel. Fuel for the unlicensed demonstration of dry
storage at the Idaho National Engineering
Laboratory was shipped in NRC certified shipping
casks from the Virginia Power Surry plant to Idaho
as part of the DOE/Virginia Power Cooperative
Agreement.

581

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 17a:

ANSWER:

DOE anticipates consolidating fuel rods on a large
scale basis at an MRS prior to shipment of fuel to
a final repository.

— Isn't it true that some preliminary studies
have shown that rod consolidation on a large-
scale basis may not necessarily be
advantageous from a cost standpoint because
of the additional costs of mining needed to
provide sufficient spacing to dissipate heat
load?

— What are the bases for DOE's belief that large
scale rod consolidation at a centralized
facility would be advantageous from a cost
standpoint?

DOE has performed some preliminary studies on

the impacts of intact (i.e. several square

assemblies) versus consolidated spent fuel

(compacted rods) in cylindrial packages as the

reference design. These studies have supported

the use of consolidated fuel as part of the

reference package but have also indicated that

more detailed studies were needed to effectively

evaluate this issue. Such studies are currently

underway and are expected to be completed early

this summer. Indications are that the primary

cost drivers are the surface facilities and

waste package costs which tend to offset one

another; mining costs depend on the number of

packages to be emplaced and the associated heat

load. However, these costs are site-specific

and, at this point, have a fairly high degree of

uncertainty. In addition, there are factors

582

- 2 -
ANSWER 17a: (Cont'd)

other than cost, such as long-term package
performance in a site-specific environment, which
will affect final decisions on whether to retain
consolidated fuel in the reference package design.
More detailed studies address these site-specific
factors.

The basis for including the capability for large-
scale consolidation of spent fuel rods at a
centralized facility has been that consolidated
fuel is part of the current reference waste
package design. Thus, these capabilities would
have to exist at either an MRS or a repository.
If consolidation remains the reference case, DOE
believes it is best done on a large scale at
facilities designed, built and operated
specifically for the waste packaging process.

583

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 17b:

ANSWER:

When will DOE demonstrate that rod consolidation
can be done as a large-scale operation on an
economical basis?

— What is the status of DOE's prototype dry rod
consolidation project underway at Idaho National
Engineering Laboratory?

— What is the estimated cost of the Idaho
consolidation project?

DOE will demonstrate rod consolidation as a large-
scale operation at INEL during a hot demonstration
in late 1989. The results of consolidating a
total of approximately 200 spent fuel assemblies
from three different manufacturers will provide a
basis for evaluating the economy of fuel
consolidation.

Phase I of the multiphase competitive procurement
has been completed. Five contractors submitted
their preliminary designs and proposals for moving
into the Phase II (Final Design) stage. These are
now in the evaluation process. A maximum of three
Phase II contracts are scheduled for award in
April 1987.

Estimated cost of the Idaho consolidation project,
including a hot demonstration of rod consolidation
for approximately 200 spent fuel assemblies, a hot
demonstration of volume reduction equipment for
non-fuel bearing components, and a cold
demonstration of consolidated fuel canister

584

- 2 -

ANSWER 17b: (Cont'd)

welded closure equipment is in the range of 60-70
million dollars. This includes the transportation
of fuel for the consolidation process and the
costs of dry storage until ready for shipment to a
repository for final emplacement.

585

QUESTIONS FROM SENATOR JOHNSTON

Question 18: a. Please describe the generic work being done by
DOE related to crystalline rock.

b. Please specify what programs were initiated or
expanded after DOE's May 28 decision to postpone
site-specific work related to a second repository.

c. Describe the relevance of work DOE is doing in
Canada at the Underground Research Laboratory to
the repository program in the United States.

— How much money is DOE contributing to each of
these programs?

— How would these programs be affected if
Congress told DOE to start-up site specific
work on the second repository?

ANSWER 18a: As announced by the Secretary on May 28, 1986, the
areas identified as suitable in the Draft Area
Recommendation Report for the Crystalline
Repository Program are no longer under active
consideration. The DOE is conducting non-site
specific studies of crystalline rocks to better
understand its geologic characteristics and its
capability as a potential host for a repository.
These studies are directed at determining (1)
whether a particular type of host rock, regardless
of its geographic location, meets various
geologic, hydrologic, geochemical, and rock-
mechanics criteria, such as those specified in the
siting guidelines; (2) how the host rock would
respond to the heat and radiation emitted by the
waste; and (3) how well the engineered components
of the repository (e.g., the waste package, which

586

- 2 -
ANSWER 18a: (Cont'd)

consists of the waste form, a metal disposal
container, and any packing material around the
container) would perform under the conditions
provided by the host rock. These generic studies
will utilize existing literature, development of
computer codes/models, and data collected from
studies performed for crystalline in other
countries (e.g., Canada, Sweden, and Switzerland).
ANSWER 18b: The Secretary's decision resulted in the

initiation of a Repository Technology Program that

would focus on the following:

o Non-site specific evaluations of potential host

rocks (including, but not limited to,

crystalline rock) .
o Development of analytical approaches to

evaluate non-site-specific geologic settings in

terms of waste isolation performance

capability.
The work will require the development of an
analytical approach for the selection of geologic
settings. This approach will identify the
characteristics that a particular type of host
rock must have in order to satisfy regulatory
requirements for waste isolation given the design
of the repository and the waste package. Because
it will integrate geologic characteristics.

587

- 3 -

ANSWER 18b: (Cont'd)

engineered components, and regulatory
requirements — and because it will be based on the
experience gained from performance assessments for
the first repository — this type of analysis is
expected to be associated with a high level of
confidence. Thus, whereas the screening process
for the first repository progressed from national
surveys through regional studies (thousands of
square miles) , area studies (hundreds to thousands
of square miles) , location studies (tens to
hundreds of square miles), and site studies, a
possible strategy for the second repository could
allow fewer areas of smaller size to be selected
early in the process.

Included in the work will be the development of
mathematical models and computer programs for
analyzing the potential waste-isolation
performance of a repository in a particular host
rock. This effort will be greatly facilitated by
the experience gained from the first-repository
program, including interactions with the Nuclear
Regulatory Commission; nonetheless, the
performance-assessment models will need to be
tailored to the characteristics of each rock
type.

588

- 4 -
ANSWER 18c: Activities and the results from the USDOE/AECL
(Atomic Energy of Canada, Ltd.) cooperative
agreement will provide the Repository Technology
Program with geologic and engineering data gained
from the field. This data is then used to further
the development of performance models in an effort
to enhance DOE's capability to predict geologic
performance. Specific data from this agreement
is gained from drilling boreholes, conducting
various underground experiments, exchanging
performance assessment codes, and the extension of
the URL experimental shaft from its current depth
of 240M to 440M. The extension of the URL shaft
will allow the U.S. to participate in construction
through a major fracture in crystalline rock as
well as physically gaining the knowledge of how
crystalline rock reacts at repository depth.

The work done under the USDOE/AECL agreement is
organized under four tasks. The DOE spends money
towards accomplishing these tasks in two ways:
first, through direct contributions to AECL and,
second, through payments to U.S. contractors who
are assisting the DOE in carrying out the work
under the agreement. The table below indicates
the tasks and the direct contribution dollars
budgeted for each for the term of the agreement.

589

- 5 -

U.S. Dollars
(in thousands)

Task

FYS 6

FY87

Cooperative Experi-
mental Program at
the URL

Performance
Assessment Studies

Field Testing
Investigations

Shaft Extensions and
Characterization

Total

FY88 FY89

536 536

944

1,001

157

1,277
4,740

4,617 2,151

Total
1,099

157
2,221

12,509

1,948 6,174 5,153 2,687 15,962

Following the Secretary's decision, the statement
of work for the USDOE/AECL agreement was reviewed,
negotiated, and modified to reflect the
termination of the siting program for the second
repository. It was determined that a majority of
the work under the agreement will provide data
that remains beneficial to the continuing generic
studies of crystalline rock. Should site-specific
activities for a second repository be started
again, a similar activity would be conducted and a
modification of the agreement would be negotiated
with the Canadians as appropriate. However, it is
not expected that any significant change would
result.

590

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 19 : "Waste Summit"

ANSWER:

a Washington Governor Booth Gardner has suggested
■ that a national conflict resolution process is
needed to put the waste program back on track
and restore credibility to the program.

— Would DOE be willing to participate in some
type of "waste summit" as envisioned by
Gardner and others?

— Does DOE believe that some action is needed to
restore credibility to the program?

What are your ideas?

The Department believes that the appropriate forum
for national consideration of the nuclear waste
program is the Congress and, consequently, has made
available to the Congress its views in the draft
Mission Plan Amendment.

The Department was disappointed that Governor
Gardner has up to now rejected the invitation to
enter into a Consultation and Cooperation Agreement
as provided by the Nuclear Waste Policy Act. This
was, of course, the process established by the
congress to reach agreement on these NWPA program
issues.

As the draft Mission Plan Amendment states, the
success of the waste-management program may largely
depend on the success of institutional relations as
well as interactions with the public. The
Department, therefore, plans to increase its
efforts to improve productive institutional

591

- 2 -

relations and to negotiate formal C&C agreements.
Examples of recent efforts include the opening of
all coordinating group meetings to State and Tribal
participation, opening regular quarterly meetings
with the States and Tribes to the public and press,
and inviting State and Tribal representatives to
participate in a training program for Quality-
Assurance Auditors. This training should help the
States and Tribes perform their important tasks of
independent evaluation of the technical quality of
the Waste Management Program.

592

QUESTIONS FROM SENATOR JOHNSTON

Waste Confidence

QUESTION 20:

a. RC's Waste Confidence Decision, issued in
August 1984, found reasonable assurance that one
or more geologic repositories would be available
by the years 2007 to 2009.

Does the 5 year delay envisioned by DOE for
operation of a repository cause concern about the
basis for the waste confidence decision?

b(l): According to DOE, the five year delay is
largely attributable to additional time needed to
meet near-term milestones during the site
characterization and site selection process.
Except for 9 months added to the NRC licensing
process and 7 months added for construction time,
DOE has not made adjustments to the longer-term
milestones.

Is it likely that additional delays will be
encountered to defer repository operation beyond
encountered to defer repository operation beyond
2003?

b(2) : If there are such delays, at what point
would the bases underlying the waste confidence
decision need to be reevaluated?

ANSWER 2 0a:

No.

It should not cause such concern.

The court decision which, in part, initiated the
Waste Confidence Rulemaking (State of Minnesota v.
NRC. 602 F2d 412 (1979)) requested only that NRC
determine the degree of assurance that off-site
storage would be available by the years 2007 -
2009 for spent fuel stored at reactor sites, and
if not, whether the fuel can be stored safely at
the sites beyond those dates. The Commission
chose to broaden the scope of the proceeding
beyond that required by the Court to reassess its

593

- 2 -

ANSWER 2 0a: (Cont'd)

basis for reasonable assurance that methods of
safe permanent disposal of high-level waste would
be available when they are needed.

The Commission findings included the following:

o That, if necessairy, spent fuel generated in any
reactor can be stored safely and without
significant environmental impact for at least
3 0 years beyond the expiration of that
reactor's operating licenses at that reactor's
spent fuel storage basin, or at either onsite
or offsite independent spent fuel storage
installations.

o That safe independent onsite or offsite spent
fuel storage will be made available if such
storage capacity is needed.

o That sufficient repository capacity will be
available within 30 years beyond expiration of
any reactor license to dispose of waste
originating in such reactor up to that time.

o That a repository will be available by the
years 2007 - 2009.

Thus, there were substantial bases, other than
repository availability in 2007 - 2009, for the

594

- 3 -
ANSWER 2 0a: (Cont'd)

Commission's confidence that high-level
radioactive waste and spent fuel will be managed
in a safe manner until sufficient repository
capacity is available to assure their safe
disposal. Furthermore, the Commission's finding
that a repository will be available by 2007 - 2009
was not based on the simple assumption that NWPA
dates would necessarily be met. The Commission
thoroughly examined the technical, institutional,
funding, and scheduling aspects of implementing a
repository as well as the provision of the NVJPA.
The Commission noted past DOE schedule delays, and
ac)cnowledged the possibility of some future
slippage, in setting forth its basis for assurance
that a repository would be available 2007 - 2009.

ANSWER 20b(l): As indicated in the draft Mission Plan Amendment,
the revised schedule is success oriented but
achievable. Achievement of the schedule will
require the Department's best efforts and will
depend on the availability of adequate resources,
both manpower and budgetary. However, we believe
that the schedule does allow adequate time for
each of the program phases remaining before
repository operation, i.e., site characterization,
site selection and approval, NRC licensing review,
and construction of the repository.

595

- 4 -

ANSWER 20b (2) : A determination of need to reevaluate the bases
underlying the waste confidence decision is the
perogative solely of the Commission. Some of the
decision bases relevant to this determination are
discussed in response to cjuestion 20a above.
Considering that the initiating court decision
required assurance only that off site storage, not
a repository, be available by 2007 - 2009, it is
not apparent that a delay of repository
availability past 2007 - 2009 would automatically
necessitate a reevaluation. If the Commission
felt that a schedule delay was of a magnitude to
call into question the likelihood of a repository
being available within the time period for which
waste can be safely stored, they would most likely
want to reevaluate the bases for the decision.
The Commission stated in its decision that it
would review its conclusions on waste confidence
if significant and pertinent unexpected events
occur, or at least every 5 years until a
repository is available. On this basis, a
reevaluation would be started in 1989 in any
event.

596

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 21:

ANSWER:

DOE includes 3 6 months in its schedule for NRC
review of a repository licensing application.
However, NRC warned DOE in a November 198 5 letter
that its review could take as much as 3 9 to 65
months.

Why hasn't DOE planned for a longer period for NRC
licensing? Is DOE confident that there will be
sufficient interaction between NRC and DOE prior to
submittal of a license application to assure that
licensing can be completed in 36 months.

The 3 6-month licensing review period is specified

in the NWPA of 1982. This time interval was

specified by Congress following extensive NRC

testimony before Congress and NRC discussions with

Congressional staff concerning licensing schedules.

Current levels of prelicensing interaction between

DOE and NRC are well in excess of those required at

the time the NWPA was drafted. For example, since

then, in June 1983, DOE and NRC signed a

"Procedural Agreement" which provides for the

exchange of information during site investigation

and site characterization. Also now planned is a

"Licensing Support System" - a computerized system

for storage and dissemination of information -

which is intended to eliminate the lengthy

discovery periods allowed for in the 3 6 month

schedule. No such system was considered at the

time the NWPA schedule was specified. The

technology for such a system was not even available

then. DOE believes that with these unique and

unprecedented prelicensing interactions, the

597

- 2 -

licensing process should be completed in less than
the 3 6 months originally scheduled. Thus the
Mission Plan allocated a 27 month period for
licensing. The schedule proposed in the Draft
Mission Plan Amendment provides an additional 9
months and thus corresponds to the NWPA schedule of
3 6 months. DOE believes this provides a
substantial margin over the optimum schedule which
should be achieved, however, given the historic
uncertainties in the NRC licensing process, there
is no way to assure that the licensing process can
be completed in any given time period.

598

QUESTION 22: Decay of Fission Products

a. How long does it take for spent fuel and glassif ied high-
level defense waste to decay to the point that its radio-
activity, heat production and toxicity are comparable to
natural uranium?

b. Provide the Committee with decay curves for radioactivity,
heat production and toxicity for spent fuel and glassified
high-level defense waste.

ANSWER: Decay curves of thermal power, radioactivity, and toxicity
of spent fuel (SF) and defense high-level waste (DHLW),
along with values for the natural uranium ore from which
the SF and DHLW were produced, are attached to this
response. The curves are based on calculations performed
with the 0RIGEN2 computer code and on assumptions docu-
mented in the references. Comparisons of the thermal power
of SF and DHLW with natural uranium have not traditionally
been made, and so are not shown.

TO summarize the decay curves, the times at which the SF and
DHLW become equivalent to the parent natural uranium ore are

as follows:

Crossover time (years)
SF DHLW

Radioactivity 300,000 10.000

Thermal Power N/A N/A

Ingestion Toxicity (ICRP-30) 1,500,000 2,000

Ingestion Toxicity (10 CFR 20) 2,500 300

599

- 2 -

The DHLW crossover times are consistently much less than
those for SF. This results from the much lower average
actinide production per unit amount of U-235 fed into the
system.

The toxicity curves require some explanation. Comparisons
of SF and DHLW with each other and with uranium ore in
terms of a simple toxicity index should be used with great
caution. A toxicity index such as water dilution volume is
only a crude measure of the potential hazard to humans. It
will greatly overestimate the actual hazard posed by the
waste, which must take into account how likely it is that
the waste will be released into the biosphere and
eventually be ingested by humans.

In addition, there are substantial uncertainties in the
estimates of the risk of cancer per curie of any radio-
isotope ingested into the body, resulting from uncertain-
ties about: 1) the fate of the radioisotope in the body
(what fraction is taken into the system, where it goes, and
how long it stays there), and 2) how much damage is done by
the radiation.

As new data and extrapolation methods become available,
estimates of the toxicity of various isotopes change over
time. The impact of such changes can be seen in the two

600

- 3 -

sets of toxicity curves, which present toxicities based on
older Nuclear Regulatory Commission (NRC) standards for
protection of the general public (10 CFR Part 20) and
recently revised estimates published by the International
Commission on Radiation Protection (ICRP).

The dramatic increase in toxicity seen by using the ICRP-
30 dosimetry is attributable in Large measure to changes
in metabolic data for a single radionuclide, neptunium-237.
The ingestion toxicity of Np-237 was increased in ICRP-30
by a factor of about 230 over earlier assessments {ICRP-2),
based on the results of a few animal studies. Additional,
more realistic data obtained since then suggest that such
a large increase in toxicity was inappropriate. The most
recent data, to be published in separate reports by the
Nuclear Energy Agency and the National Council on
Radiation Protection, show an ingestion toxicity for Np-237
that is about a factor of 10 lower than ICRP-30 dosimetry
values .

Finally, we note that 10 CFR Part 20, which is the govern-
ing regulation for the repository program in the preclo-
sure phase and is based on ICRP-2, has not been changed
using the ICRP-30 values. It is uncertain whether 10 CFR
Part 20 will be changed, especially in view of the most
recent information.

601

- 4 -

References

1. A.G. Croff, "0RIGEN2: A Versatile Computer Code for
Calculating the Nuclide Compositions and
Characteristics of Nuclear Materials," Nucl. Tech.,
62, 335-352 (September 1983).

2. A.G. Croff, M.A. Bjerke, G.W. Morrison, and L.M.
Petrie, Revised Uranium-Plutonium Cycle BWR Models
for the ORIGEN Computer Code, ORNL/TM-6051
(September 1978).

3. R.G. Baxter, Basic Data Report, Defense Waste
Processing Facility, Savannah River Plant,
DPSP 80-1033 (April 1985).

4. Defense High-Level Waste Technology Program Office,
Perspective on Methods to Calculate a Fee for
Disposal of Defense High-Level Waste in Combined
(Civilian/Defense) Repositories, DOE/RL-86-10
(December 1986).

5. A.G. Croff, R.L. Haese, and N.B. Gove, Updated
Decay and Photon Libraries for the ORIGEN Code,
ORNL/TM-6055 (February 1979).

6. A.G. Croff, "Potential Impact of ICRP-30 on the
Calculated Risk from Waste Repositories", Trans.
Am. Nucl. Soc. 39, 74-75 , (November 1981).

7. Office of Technology Assessment, Managing the
Nation's Commercial High Level Radioactive Waste,
OTA-0-171, March 1985.

602

ORNL DWQ 87-265 R

10'

liJ io'

CO.

10'

•POWER REACTOR
SPENT FUEL

_ SRP

DEFENSE

HIGH-LEVEL

WASTE

10 -

m -1

-2

10 10" 10' 10' 10' 10

DECAY TIME (years)

603

ORNL OWQ 87-330R

<
>

a
o

I-

S2
X

1 10 10^ 10^ 10^ 10^ 10® 10^

DECAY TIME (years)

604

ORNL DWG 87-267 R

107

_l 106

Z>
Ll.

O 105

»-
CO

• ■HI

<
g

10^

ii 103

102

SRP

DEFENSE

HIGH-LEVEL

WASTE

10 —

URANIUM ORE

USED TO

PRODUCE

SPENT FUEL

URANIUM ORE USED TCT

PRODUCE

HIGH-LEVEL WASTE -

10 10^ 10^ lO'^ 10^ 10® 10

DECAY TIME (years)

605

QUESTIONS FROM SENATOR JOHNSTON

Inventory of Spent Fuel

QUESTION 23: a. Please provide a table showing how much spent
fuel is currently in storage at reactor sites,
state by state. Name the sites in each state.

b. Please provide a table showing how much spent
fuel will be stored, State by State, in 2000,
assuming no spent fuel is accepted by DOE. Name
the sites,

— Do the same for 2010.

— Do the same for 2020.

ANSWER:

The attached table provides a state by state,
reactor by reactor listing of spent fuel currently
in storage and projected through the years 2 000,
2010 and 2020. These projections use the 1986 EIA
Upper Reference Case. Also indicated is the spent
fuel pool storage capacities for each reactor as
reported by the utilities.

77-10A 0

606

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

STATE /
REACTOR OR STORAGE POOL

STATE AL

FARLEY 1

FARLEY 2

BELLEFONTE 1

BELLEFONTE 2

BROWNS FERRYl

BROWNS FERRY2

BROWNS FERRY3

Subtotal **

STATE AR

ARK NUCLEAR 1

ARK NUCLEAR 2

Subtotal **

STATE AZ

PALO VERDE 1

PALO VERDE 2

PALO VERDE 3

Subtotal **

STATE CA

DIABLO CANYON- 1

DIABLO CANYON-2

HUMBOLDT BAY

RANCHO SECO-1

SAN ONOFRE 1

SAN ONOFRE 2

SAN ONOFRE 3

Subtotal **

STATE CT

MILLSTONE 1

MILLSTONE 2

MILLSTONE 3

HADDAM NECK

Subtotal **

STATE FL

CRYSTAL RVR 3

ST LUCIE 1

ST LUCIE 2

METRIC

TONS

THROUGH

STORAGE

1985

2000

2010

2020

CAPACITY

160

439

634

807

648

354

533

704

649

173

349

483

223

390

483

246

414

610

845

634

221

471

667

903

633

185

433

634

899

632

899

270

0
0
29
123
35
28
28

242

289

166

224

679

2128

691

991

310
297
29
372
165
312
281

1766

525
440
298

425

1688

3473

931

1624

509
489
29
536
283
461
465

2773

697
617
497
595

2406

4897

175

383

486

629

449

309

445

580

412

1209

352

578

794

576

358

562

748

573

280

484

674

575

2216

694
679
29
684
283
606
605

3580

801
773
673
595

2841

608
608

36
499

80
340
340

396

448
847
481

142

347

484

669

537

169

405

540

709

277

265

418

565

416

607

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

STATE /
REACTOR OR STORAGE POOL

METRIC

TONS

THROUGH

1985

METRIC

TONS

THROUGH

2000

METRIC

TONS

THROUGH

2010

METRIC

TONS

THROUGH

2020

METRIC

TONS

STORAGE

CAPACITY

FL TURKEY PT 3
FL TURKEY PT 4
** Subtotal **

192
171

706

379
366

1762

479
496

2417

584
602

3129

642
291

** STATE GA
GA HATCH 1
HATCH 2
VOGTLE 1
VOGTLE 2

GA
GA
GA

** Subtotal **

216

498

659

842

589

100

383

569

826

527

265

463

641

432

214

412

590

432

316

1360

2102

2898

** STATE lA

lA DUANE ARNOLD

** Subtotal **

** STATE IL

IL BRAIDWOOD 1

IL BRAIDWOOD 2

IL BYRON 1

IL BYRON 2

IL DRESDEN 1

IL DRESDEN 2

IL DRESDEN 3

IL LASALLE CTY 1

IL LASALLE CTY 2

IL QUAD CITIES 1

IL QUAD CITIES 2

IL ZION 1

IL ZION 2

IL CLINTON 1

IL MORRIS-BWR

IL MORRIS-PWR

** Subtotal **

129

313

414

543

369

129

313

414

543

264

445

583

444

222

423

562

300

467

661

444

243

411

571

257

495

751

610

266

461

605

748

610

330

547

759

197

349

589

770

197

228

471

625

797

657

241

485

655

829

701

233

503

683

825

950

229

505

661

825

324

523

676

488

361

STOR LOC

132

STOR LOC

2041

5516

7948

9922

** STATE KS

KS WOLF CREEK 1

** Subtotal **

** STATE LA
LA RVR BEND 1
LA WATERFORD 3

283

462

632

621

283

462

632

0
0

314
300

496
524

706
706

587
567

608

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

STATE /
REACTOR OR STORAGE POOL

METRIC

TONS

THROUGH

STORAGE

1985

2000

2010

2020

CAPACITY

Subtotal **

STATE MA

PILGRIM 1

YANKEE-ROWE 1

Subtotal **

STATE MD

CALVERT CLF 1

CALVERT CLF 2

Subtotal **

STATE ME

MAINE YANKEE

Subtotal **

STATE MI

BIG ROCK 1

MIDLAND-2

MIDLAND-1

PALISADES

ENRICO FERMI-2

COOK 1

COOK 2

Subtotal **

STATE MN

MONTICELLO

PRAIRIE ISL 1

PRAIRIE ISL 2

Subtotal **

STATE MO

CALLAWAY 1

Subtotal **

STATE MS

GRAND GULF 1

GRAND GULF 2

296

387

636

285

614

570

820

1819

810

1019

705

1098

2796

1121

1412

213

416

551

682

419

154

171

836

208

437

574

707

315

179

383

524

714

378

1421

297

524

654

759

558

297

524

654

759

227

398

LIFETIME

146

LIFETIME

219

392

523

625

314

350

609

803

420

238

510

687

861

1028

154

458

624

842

3747

204

311

410

387

128

303

406

484

506

146

302

404

492

1385

328

543

746

572

328

543

746

0
0

391
0

646
247

892
541

912

915

609

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

STATE /
REACTOR OR STORAGE POOL

METRIC

TONS

HROUGH

THROUGH

STORAGE

1985

2000

2010

2020

CAPACITY

** Subtotal **

391

893

1433

** STATE NC

NC BRUNSWICK 1

NC BRUNSWICK 2

NC HARRIS 1

NC BRUNSWICK 1 PWR

NC BRUNSWICK 2 PWR

NC MCGUIRE 1

NC MCGUIRE 2

** Subtotal **

156
141
0
71
66
62
22

518

416
371
206
71
66
345
302

1778

653
560
307
71
66
520
476

2653

653

336

744

343

421

629

STOR LOC

662

626

637

625

3255

** STATE NE
NE COOPER STN
NE FORT CALHOUN
** Subtotal **

164
126

291

421
253

674

582
327

909

742
400

1142

434
263

** STATE NH
NH SEABROOK 1
NH SEABROOK 2
** Subtotal **

236
0

236

400
183

583

581
389

970

570
570

** STATE NJ

NJ
NJ

OYSTER CRK 1
HOPE CREEK
SALEM UNIT 1
SALEM UNIT 2
Subtotal **

227

447

687

469

314

540

758

725

124

450

661

898

537

382

613

790

538

404

1593

2501

3133

** STATE NY

NY INDIAN PT 1

NY INDIAN PT 2

NY SHOREHAM

NY NINE MILE PTl

NY NINE MILE PT2

NY FITZPATRICK

NY INDIAN PT 3

NY GINNA

NY WEST VALLEY-B

NY WEST VALLEY-P

144

179

438

586

718

443

170

310

467

489

235

459

585

675

494

208

371

530

683

189

452

598

792

515

133

395

560

728

601

171

307

392

432

359

STOR LOC

610

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

STATE /
REACTOR OR STORAGE POOL

METRIC

TONS

THROUGH

STORAGE

1985

2000

2010

2020

CAPACITY

** Subtotal **

964

2486

3459

4398

** STATE OH

OH PERRY 1

OH PERRY 2

OH DAVIS-BESSE 1

** Subtotal **

367

597

780

295

206

454

739

437

330

463

657

335

904

1514

2176

** STATE OR

OR TROJAN

** Subtotal **

** STATE PA
PA B VALLEY 1
PA B VALLEY 2
PA 3 MILE ISL 1
PA SUSQUEHANNA 1
PA SUSQUEHANNA 2
PA LIMERICK 1
PA LIMERICK 2
PA PEACHBOTTOM 2
PA PEACHBOTTOM 3
** Subtotal **

147

432

611

803

649

147

432

611

803

100

406

593

768

384

191

323

477

502

347

530

690

1059

380

591

796

496

338

521

733

495

302

510

712

364

213"

420

633

364

272

613

802

1032

507

279

575

804

1002

508

783

3365

5094

6843

** STATE SC
SC ROBINSON 2
SC CATAWBA 1
SC CATAWBA 2
SC OCONEE 1
SC OCONEE 2
SC OCONEE 3
SC SUMMER 1
** Subtotal **

296

429

516

231

276

454

619

1106

250

407

551

1106

268

549

729

857

608

191

444

599

745

180

413

562

712

382

312

459

630

591

786

2540

3639

4630

** STATE TN
TN SEQUOYAH 1
TN SEQUOYAH 2
TN WATTS BAR 1
TN WATTS BAR 2
** Subtotal **

346

521

692

636

345

519

693

166

364

506

605

167

337

476

160

1024

1740

2366

611

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

METRIC

TONS

STATE /

THROUGH

STORAGE

REACTOR OR STORAGE POOL

1985

2000

2010

2020

CAPACITY

** STATE TX

TX SOUTH TEXAS, UNIT 1

293

498

681

920

TX SOUTH TEXAS, UNIT 2

240

445

631

920

TX COMANCHE PK 1

307

496

671

563

TX COMANCHE PK 2

230

417

595

554

** Subtotal

1070

1857

2578

** STATE VA
VA NORTH ANNA 1
VA NORTH ANNA 2
VA SURRY 1
VA SURRY 2
** Subtotal **

137

215

164

597

385
327
418
373

1503

525
489
551
491.

2056

706
640
641
601

2589

801
0

477
0

** STATE VT

VT VT YANKEE 1

** Subtotal **

246
246

439
439

549
549

655
655

530

** STATE WA

WA WNP-1

WA WASH NUCLEAR 2

WA WNP-3

** Subtotal **

0
361
148

510

162
589
442

1193

398
805
705

1907

492

471
574

** STATE WI
WI LACROSSE
WI POINT BEACH 1
WI POINT BEACH 2
WI KEWAUNEE
** Subtotal **

27
160
153
138

478

53
314
305
320

992

73
406
396
433

1308

73
449
457
523

1502

560

369

** STATE _

_ GENERIC REACTORS

** Subtotal **

*** Total ***

0
0

12650

0
0

41919

3871

66917

23758

106312

LIFETIME

612

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 24a:

How will the schedule adjustments included in
the draft anendnents to the Mission Plan affect
the rate of spent fuel acceptance at a
repository and at an MRS?

ANSWER:

The effect of the schedule adjustment on waste
acceptance is shown by coaparing the two
attached suggested waste acceptance tables,
Table 2-3 from the June 198 5 Mission Plan and
Table F-1 from the January 1987 Draft Mission
Plan Amendment. Waste will be accepted at the
repository at the same rate, which includes the
initial raunp-up, only it will start five years
later, in 2003 versus 1998.

613

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615

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 24(b)

If the Mission Plan amendments are made
effective, in what year will DOE begin taking
spent fuel at an MRS, and at what rate?

ANSWER:

If the Mission Plan amendments are made
effective and the DOE MRS proposal is
approved in fiscal year 1987, the MRS should
begin to accept spent fuel by 1998 at 12 00
MTU per year.

616

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 24(c): What year for a repository, and at what rate?

ANSWER: The repository would receive spent fuel by

2003 at an initial rate of 400 MTU.

617

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 24d:

According to DOE's revised schedule In the Mission
Plan amendments, slightly over 13,000 metric tons
of uranium would be accepted by 2005, compared to
just over 26,000 metric tons that would be
accepted by 2005 under the previous schedule.
Under the new schedule, 27,000 metric tons would
be accepted by 2010, compared to 49,000 metric
tons by 2010 under the previous schedule.

How are these reduced levels of waste
acceptance reconciled with utilities' need
for spent fuel storage space?

— How much spent fuel is currently in storage
at reactor sites?

— How much will be in storage by 2005? 2010?

ANSWER:

The utility storage requirements can be determined
from the attached data sheets. The amount of
expected spent fuel to be generated by the
reactors in each State is shown for the years
1985, 2000, 2010 and 2020. The last column shows
the total storage capacity for each reactor or
storage pool. When the total amount of spent fuel
inventory exceeds the storage capacity, the
utility must take some corrective action if the
Department has not accepted some of this spent
fuel for disposal.

Based on information soon to be published, the
shortfall of current or planned utility storage
capacity versus cumulative spent fuel inventory
can be calculated. Using an upper reference case
and assuming Increased use of extended burnup fuel
as discussed in the DOE's Energy Information

618

- 2 -

ANSWER 24d: (Cont'd)

Administration's spent fuel discharge projections.
Table E 2 . attached ( from the report World
Nuclear Fuel Cycle Requirements 1986) , the
Department has calculated the following need for
additional storage requirements. These additional
storage requirements vary depending on the waste
acceptance schedules used. For comparison, the
two waste acceptance schedules in the June 1985
Mission Plan and the one schedule in the January
1987 Draft Mission Plan Amendment are shown.

Storage Capacity Shortfall (MTU)

June 1985 Mission Plan January 1987 Amendment

Authorized System Improved Performance With MRS

with MRS

Max(Year) 4881 (2001) 2165 (1996) 3807 (2003)

2005 3426 760 3322

2010 728 41 2434

From Table E 2. the amount of spent fuel currently
in storage is 15,300 MTU.

The amount in storage in the years 2005 and 2010
will be the amounts identified in Table E 2.,
depending on which case is assumed, minus the
amount delivered to the repository or MRS
depending on which waste acceptance table is
assumed.

619

- 3 -

ANSWER 24d: (Cont'd)

A number of actions are open to the utilities to
increase spent fuel storage at their sites and
include: expansion of storage pools, reracking to
increase storage of pools, licensed dry storage,
transshipment, etc. DOE is continuing to work
with utilities in cooperative agreements to
encourage and expedite the efficient use of
existing storage facilities and the addition of
new capacity.

620

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

METRIC

TONS

STATE /

THROUGH

STORAGE

REACTOR OR STORAGE POOL

1985

2000

2010

2020

CAPACITY

** STATE AL

AL FARLEY 1

160

439

634

807

648

AL FARLEY 2

354

533

704

649

AL BELLEFONTE 1

173

349

483

AL BELLEFONTE 2

223

390

483

AL BROWNS FERRYl

246

414

610

845

634

AL BROWNS FERRY2

221

471

667

903

633

AL BROWNS FERRY3

185

433

634

899

632

AL GENERIC BWR REACTOR

111

360

LIFETIME

AL GENERIC BWR REACTOR

243

LIFETIME

AL GENERIC BWR REACTOR

243

LIFETIME

AL GENERIC BWR REACTOR

LIFETIME

AL GENERIC BWR REACTOR

LIFETIME

AL GENERIC PWR REACTOR

285

LIFETIME

AL GENERIC PWR REACTOR

173

LIFETIME

AL GENERIC PWR REACTOR

107

LIFETIME

AL GENERIC PWR REACTOR

106

LIFETIME

** Subtotal **

899

2128

3622

6521

** STATE AR

AR ARK NUCLEAR 1

175

383

486

629

449

AR ARK NUCLEAR 2

309

445

580

412

AR GENERIC BWR REACTOR

106

LIFETIME

AR GENERIC PWR REACTOR

144

LIFETIME

** Subtotal **

270

691

931

1458

** STATE AZ

AZ PALO VERDE 1

352

578

794

576

AZ PALO VERDE 2

358

562

748

573

AZ PALO VERDE 3

280

484

674

575

AZ GENERIC PWR REACTOR

LIFETIME

** Subtotal **

991

1624

2250

** STATE CA

CA DIABLO CANYON-1

310

509

694

608

CA DIABLO CANYON-2

297

489

679

608

CA HUMBOLDT BAY

CA RANCHO SECO-1

123

372

536

684

499

CA SAN ONOFRE I

165

283

CA SAN ONOFRE 2

312

461

606

340

CA SAN ONOFRE 3

281

465

605

340

CA GENERIC BWR REACTOR

111

359

LIFETIME

CA GENERIC BWR REACTOR

304

LIFETIME

Page No.
02/20/87

621

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

STATE /
REACTOR OR STORAGE POOL

METRIC

TONS

THROUGH

1985

METRIC

TONS

THROUGH

2000

METRIC

TONS

THROUGH

2010

METRIC

TONS

THROUGH

2020

METRIC

TONS

STORAGE

CAPACITY

CA
CA
CA
CA
CA
CA
CA
CA
CA
CA

GENERIC
GENERIC
GENERIC
GENERIC
GENERIC
GENERIC
GENERIC
GENERIC
GENERIC
GENERIC
Subtotal

BWR REACTOR
PWR REACTOR
PWR REACTOR
PWR REACTOR
PWR REACTOR
PWR REACTOR
PWR REACTOR
PWR REACTOR
PWR REACTOR
PWR REACTOR

** STATE CT

CT MILLSTONE 1

CT MILLSTONE 2

CT MILLSTONE 3

CT HADOAM NECK

CT GENERIC PWR REACTOR

** Subtotal **

FL
FL
FL
FL
FL
FL
FL
FL
FL
FL

STATE FL
CRYSTAL RVR
ST LUCIE 1
ST LUCIE 2
TURKEY PT 3
TURKEY PT 4
GENERIC BWR
GENERIC BWR
GENERIC PWR
GENERIC PWR
GENERIC PWR

** Subtotal **

REACTOR
REACTOR
REACTOR
REACTOR
REACTOR

** STATE GA

GA HATCH 1

GA HATCH 2

GA VOGTLE 1

GA VOGTLE 2

GA GENERIC PWR REACTOR

** Subtotal **

0
0
0
0
0
0
0
0
0
0

242

289
166

0
224

679

142

169

192

171

706

0
0
0
0
0
0
0
0
0
0

1766

525
440
298
425
0

1688

347

405

265

379

366

1762

0
186
30
0
0
0
0
0
0
0

3165

697
617
497
595
0

2406

484

540

418

479

496

112

2602

175
388
239
213
174
144
106
106
74
31

5893

2948

4117

LIFETIME
LIFETIME
LIFETIME
LIFETIME
LIFETIME
LIFETIME
LIFETIME
LIFETIME
LIFETIME
LIFETIME

801

396

773

448

673

847

595

481

107

LIFETIME

669

537

709

277

565

416

584

642

602

291

282

LIFETIME

106

LIFETIME

352

LIFETIME

143

LIFETIME

107

LIFETIME

216

498

659

842

589

100

383

569

826

527

265

463

641

432

214

412

590

432

178

418

LIFETIME

128

364

LIFETIME

316

1360

2409

3681

622

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

STATE /
REACTOR OR STORAGE POOL

** STATE lA

lA DUANE ARNOLD

lA GENERIC PWR REACTOR

** Subtotal **

METRIC
TONS

HROUGH
1985

METRIC

TONS

THROUGH

2000

METRIC

TONS

THROUGH

2010

METRIC

TONS

THROUGH

2020

METRIC

TONS

STORAGE

CAPACITY

129
0
0

313
0
0

414

543
299
173

369
LIFETIME
LIFETIME

129

313

477

1016

STATE IL

BRAIDWOOD 1

BRAIDWOOD 2

BYRON 1 •

BYRON 2

DRESDEN 1

DRESDEN 2

DRESDEN 3

LASALLE CTY

QUAD CITIES

ZION 1

ZION 2

CLINTON 1

MORRIS-BWR

MORRIS-PWR

GENERIC BWR

REACTOR

GENERIC BWR

REACTOR

GENERIC PWR

REACTOR

GENERIC PWR

REACTOR

GENERIC PWR

REACTOR

GENERIC PWR

REACTOR

GENERIC PWR

REACTOR

Subtotal **

STATE KS

WOLF CREEK 1

Subtotal **

STATE LA

RVR BEND 1

WATERFORD 3

GENERIC PWR

REACTOR

GENERIC PWR

REACTOR

Subtotal **

0
0
0

257

266

228

241

233

229

361

132

2041

264

222

300

243

495

461

330

349

471

485

503

505

324

361

132

5516

283
283

314

300

614

445
423
467
411
70
751
605
547
589
625
655
683
661
523
361
132
179
186
111
109
0
0
0

8534

462
462

496

524

1019

583

444

562

661

444

571

751

610

748

610

759

197

770

197

797

657

829

701

825

950

825

676

488

361

STOR LOC

132

STOR LOC

428

LIFETIME

395

LIFETIME

351

LIFETIME

311

LIFETIME

239

LIFETIME

144

LIFETIME

106

LIFETIME

11895

632
632

706
706
212
174

1798

621

587

567

LIFETIME

623

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

METRIC

TONS

STATE /

THROUGH

STORAGE

REACTOR OR STORAGE POOL

1985

2000

2010

2020

CAPACITY

** STATE MA

MA PILGRIM 1

213

416

551

682

419

MA YANKEE-ROWE 1

154

171

MA GENERIC PWR REACTOR

299

LIFETIME

MA GENERIC PWR REACTOR

240

LIFETIME

MA GENERIC PWR REACTOR

LIFETIME

** Subtotal **

296

570

768

1406

** STATE MD

MD CALVERT CLF 1

MD CALVERT CLF 2

MD GENERIC BWR REACTOR

MD GENERIC PWR REACTOR

** Subtotal **

208
179
0
0
0
0

387

437
383
0
0
0
0

820

574

524

0
109

1239

707
714
242
216
311
173

2364

315
378
LIFETIME
LIFETIME
LIFETIME
LIFETIME

** STATE ME

ME MAINE YANKEE

ME GENERIC BWR REACTOR

** Subtotal **

297
0

297

524
0

524

654
130

784

759
370

1129

558
LIFETIME

MI
MI
MI
MI
MI
MI
MI
MI
MI
MI
MI
MI
MI
MI
MI
MI
MI

STATE MI
BIG ROCK 1
MIDLAND-2
MIDLAND-1
PALISADES
ENRICO FERMI
COOK 1
COOK 2
GENERIC BWR
GENERIC BWR
GENERIC BWR
GENERIC PWR
GENERIC PWR
GENERIC PWR
GENERIC PWR
GENERIC PWR
GENERIC PWR
GENERIC PWR

Subtotal **

-2

REACTOR
REACTOR
REACTOR
REACTOR
REACTOR
REACTOR
REACTOR
REACTOR
REACTOR
REACTOR

25
0
0
219
0
238
154
0
0
0
0
0
0
0
0
0
0

636

392

350

510

458

1819

227

523

609

687

624

129

3029

73
398
146
625
803
861
842
291
106

36
364
299
207
173
178
144

5618

LIFETIME

314

420

1028

LIFETIME

624

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

METRIC

TONS

STATE /

THROUGH

STORAGE

REACTOR OR STORAGE POOL

1985

2000

2010

2020

CAPACITY

** STATE MN

MN MONTICELLO

204

311

410

387

MN PRAIRIE ISL

128

303

406

484

506

MN PRAIRIE ISL

146

302

404

■492

MN GENERIC BWR

REACTOR

242

LIFETIME

** Subtotal **

285

810

1153

1627

** STATE MO

MO CALLAWAY 1

328

543

746

572

** Subtotal **

328

543

746

** STATE MS

MS GRAND GULF ]

391

646

892

912

MS GRAND GULF 1

247

541

915

MS GENERIC BWR

REACTOR

175

LIFETIME

MS GENERIC PWR

REACTOR

212

LIFETIME

MS GENERIC PWR

REACTOR

106

LIFETIME

** Subtotal **

391

893

1926

** STATE NC

NC BRUNSWICK 1

156

416

653

336

NC BRUNSWICK 2

141

371

560

744

343

NC HARRIS 1

206

307

421

629

NC BRUNSWICK 1

PWR

STOR LOC

NC BRUNSWICK 2

PWR

STOR LOC

NC MCGUIRE 1

345

520

662

626

NC MCGUIRE 2

302

476

637

625

NC GENERIC BWR

REACTOR

108

317

LIFETIME

NC GENERIC BWR

REACTOR

175

LIFETIME

NC GENERIC PWR

REACTOR

167

398

LIFETIME

NC GENERIC PWR

REACTOR

110

312

LIFETIME

NC GENERIC PWR

REACTOR

239

LIFETIME

NC GENERIC PWR

REACTOR

239

LIFETIME

NC GENERIC PWR

REACTOR

213

LIFETIME

NC GENERIC PWR

REACTOR

174

LIFETIME

** Subtotal **

518

1778

3099

5321

** STATE NE

NE COOPER STN

164

421

582

742

434

NE FORT CALHOUN

126

253

327

400

263

NE GENERIC PWR

REACTOR

107

LIFETIME

NE GENERIC PWR

REACTOR

LIFETIME

625

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

METRIC

TONS

STATE /

THROUGH

STORAGE

REACTOR OR STORAGE POOL

1985

2000

2010

2020

CAPACITY

** Subtotal **

291

674

909

1280

** STATE NH

•

NH SEABROOK 1

236

400

581

570

NH SEABROOK 2

183

389

570

** Subtotal **

236

583

970

** STATE NJ

NJ OYSTER CRK 1

227

447

687

469

NJ HOPE CREEK

314

540

758

725

NJ SALEM UNIT 1

124

450

661

898

537

NJ SALEM UNIT 2

382

613

790

538

NJ GENERIC BWR REACTOR

143

391

LIFETIME

NJ GENERIC PWR REACTOR

103

334

LIFETIME

NJ GENERIC PWR REACTOR

285

LIFETIME

NJ GENERIC PWR REACTOR

240

LIFETIME

** Subtotal **

404

1593

2785

4383

** STATE NY

NY INDIAN PT 1

144

NY INDIAN PT 2

179

438

586

718

443

NY SHOREHAM

170

310

467

489

NY NINE MILE PTl

235

459

585

675

494

NY NINE MILE PT2

208

371

530

683

NY FITZPATRICK

189

452

598

792

515

NY INDIAN PT 3

133

395

560

728

601

NY GINNA

171

307

392

432

359

NY WEST VALLEY-B

STOP LOC

NY WEST VALLEY-P

STOP LOC

NY GENERIC BWR REACTOR

145

LIFETIME

NY GENERIC BWR REACTOR

106

LIFETIME

NY GENERIC PWR REACTOR

204

LIFETIME

NY GENERIC PWR REACTOR

175

LIFETIME

NY GENERIC PWR REACTOR

107

LIFETIME

NY GENERIC PWR REACTOR

LIFETIME

NY GENERIC PWR REACTOR

LIFETIME

** Subtotal **

964

2486

3459

5243

** STATE OH

OH PERRY 1

367

597

780

295

OH PERRY 2

206

454

739

437

OH DAVIS-BESSE 1

330

463

657

335

OH GENERIC BWR REACTOR

LIFETIME

626

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

METRIC

TONS

STATE /

THROUGH

STORAGE

REACTOR OR

STORAGE POOL

1985

2000

2010

2020

CAPACITY

OH GENERIC

PWR

REACTOR

106

LIFETIME

OH GENERIC

PWR

REACTOR

106

LIFETIME

OH GENERIC

PWR

REACTOR

LIFETIME

** Subtotal

•

904

1514

2454

** STATE OR

OR TROJAN

147

432

611

803

649

** Subtotal

147

432

611

803

** STATE PA

PA B VALLE\

' 1

100

406

593

768

384

PA B VALLEY

' 2

191

323

477

502

PA 3 MILE ISL ]

[

347

530

690

1059

PA SUSQUEHANNA

380

591

796

496

PA SUSQUEHANNA

338

521

733

495

PA LIMERICK 1

302

510

712

364

PA LIMERICK 2

213

420

633

364

PA PEACHBOTTOM

272

613

802

1032

507

PA PEACHBOTTOM

279

575

804

1002

508

PA GENERIC

BWR

REACTOR

208

LIFETIME

PA GENERIC

BWR

REACTOR

145

LIFETIME

PA GENERIC

BWR

REACTOR

106

LIFETIME

PA GENERIC

PWR

REACTOR

184

387

LIFETIME

PA GENERIC

PWR

REACTOR

107

LIFETIME

PA GENERIC

PWR

REACTOR

106

LIFETIME

PA GENERIC

PWR

REACTOR

LIFETIME

PA GENERIC

PWR

REACTOR

LIFETIME

** Subtotal

783

3365

5278

8004

** STATE RI

RI GENERIC PWR REACTOR

** Subtotal **

173

144

317

LIFETIME
LIFETIME

** STATE SC

SC ROBINSON 2

SC CATAWBA 1

SC CATAWBA 2

SC OCONEE 1

SC OCONEE 2

SC OCONEE 3

SC SUMMER 1

SC GENERIC BWR REACTOR

268

191

180

296
276
250
549
444
413
312
0

429
454
407
729
599
562
459
0

516

231

519

1106

551

1106

857

608

745

712

382

630

591

175

LIFETIME

627

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

STATE /
REACTOR OR STORAGE POOL

METRIC

TONS

THROUGH

1985

METRIC

TONS

THROUGH

2000

METRIC

TONS

THROUGH

2010

METRIC

TONS

THROUGH

2020

METRIC

TONS

STORAGE

CAPACITY

SC GENERIC BWR REACTOR
SC GENERIC BWR REACTOR
SC GENERIC BWR REACTOR
SC GENERIC PWR REACTOR
** Subtotal **

0
0
0
0

786

0
0
0
0

2540

186

3824

145

106

388

5477

LIFETIME
LIFETIME
LIFETIME
LIFETIME

TN
TN
TN
TN
TN
TN
TN
TN
TN

STATE TN
SEQUOYAH 1
SEQUOYAH 2
WATTS BAR 1
WATTS BAR 2
GENERIC BWR
GENERIC BWR
GENERIC PWR
GENERIC PWR
GENERIC PWR
GENERIC PWR

Subtotal **

REACTOR
REACTOR
REACTOR
REACTOR
REACTOR
REACTOR

97
62
0
0
0
0
0
0
0
0

160

346

345

166

167

1024

521

519

364

337

1740

692

636

693

506

605

476

106

LIFETIME

106

LIFETIME

2795

** STATE TX

TX SOUTH TEXAS, UNIT 1

TX SOUTH TEXAS, UNIT 2

TX COMANCHE PK 1

TX COMANCHE PK 2

TX GENERIC BWR REACTOR

TX GENERIC PWR REACTOR

** Subtotal **

293

240

307

230

1070

498
445
496
417
108

129

2124

681

920

631

920

671

563

595

554

317

LIFETIME

106

LIFETIME

364

LIFETIME

239

LIFETIME

3635

** STATE VA

VA NORTH ANNA 1

NORTH ANNA 2

SURRY 1

SURRY 2

GENERIC BWR REACTOR

VA
VA
VA
VA
VA
VA
VA
** Subtotal

GENERIC PWR REACTOR
GENERIC PWR REACTOR
GENERIC PWR REACTOR

137

215

164

597

385

327

418

373

1503

525

489

551

491

112

2241

706

801

640

641

477

601

LIFETIME

352

LIFETIME

276

LIFETIME

106

LIFETIME

3360

628

Page No.
02/20/87

1986 UPPER REFERENCE CASE

CUMULATIVE SPENT FUEL INVENTORY
CY-1985 SPENT FUEL DATA BASE

STATE /
REACTOR OR STORAGE POOL

METRIC

TONS

THROUGH

1985

METRIC

TONS

THROUGH

2000

METRIC

TONS

THROUGH

2010

METRIC

TONS

THROUGH

2020

METRIC

TONS

STORAGE

CAPACITY

** STATE VT

VT VT YANKEE 1

VT GENERIC BWR REACTOR

** Subtotal **

246
0

246

439
0

439

549
0

549

655
106

761

530

LIFETIME

STATE WA

WNP-1

WASH NUCLEAR

! 2

WNP-3

GENERIC BWR

REACTOR

GENERIC PWR

REACTOR

GENERIC PWR

REACTOR

Subtotal **

STATE WI

LACROSSE

POINT BEACH

KEWAUNEE

GENERIC BWR

REACTOR

GENERIC BWR

REACTOR

GENERIC PWR

REACTOR

GENERIC PWR

REACTOR

Subtotal **

0
0
0
0
0
0

0
361
148
0
0
0

510

162
589
442

0
38

1231

398

492

805

471

705

574

LIFETIME

285

LIFETIME

143

LIFETIME

2409

Total

160

314

406

449

560

153

305

396

457

138

320

433

523

369

216

LIFETIME

175

LIFETIME

106

LIFETIME

478

992

1308

2073

12650

41919

66917

106312

629

Tabto E2. Pro|«ctions of Total U.S. Spont Fuol DIocharges
(ThouMiKl Motrlc Tons of Initial Haavy Matal)

Cm*

Bumyp

Ctnlkwd

Bwnup

No N»H
Ortara C«M.

Bumup

12.4
13 8
1S.3
17 0
1«»
20.9
23.0
25.2
27.3
29.4
31.7
33.9

3«.e

38.3
40.8
42.8
45.1
47.4
49.7
S2.0
S43
56.8
59.0
614
63.9
88.5
69.1
71.7
744
77.3
79.7
81 7
83.8
85. 1
86.5
87.8

tM7.

aoei .
anz.

2003 .

tOM.

3007.
2006 .

2000 .

2010

2011

2012

2013

2014

201S

2010

2017

2010

2020

12.4
13.«
1S.3
17.0
10.0
20.0
23.0
2S.1
27.2
29.2
31.2
3X2
3S.0
30.0
30.0
40J
42.7
44.6
46.6
46.6
SO.S
S2.S
54.6
56.5
56.6
60.9
63.1
65.3
67.6
70.2
72.3
74.0
75.7
77.0
78.1
79.3

12.4
13.6
15.3
17.0
16.0
20.0
23.0
25.1
27.2
20.2
31.2
33.2
36.0
36.6
36.9
40.8
4i7
44.6
46.6
46.6
S0.5
52.5
54.6
56.5
56.7
61.1
63.4
65.9
66.5
71.5
74.3
76.8
79.5
61.6
64.1
86.8

13.8
15.3
17.1
10.2
21.2
23.2
2S.4
27.4
29.4
31.5
33.S
35.5
37.5
30.5
41.6
43.6
45.6
47.8
50.1
52.4
55.0
57.7
60.3
63.4
86.6
86.9
73.S

n.2

81.4
85.6

89.8

93.7
97.8
101.8
166.0

124
13.8
15.3
171
19.2
213
23.4
25.6
277
29.7
31.8
33.9
35.9
38.0
4O.0
42.0
44.1
46.2
46.5
51.1
53.7
56.7
60.2
63.5
87.4
71.8
78.1
80.9
86.3
,91.9
97.7
103.9
110.3
116.6
123.0
130.3

124
13.8
15.4
17.2
19.3
21.5
23.7

ae.o

28.2
30.4
32.8
35.3
37.7
40.2
42.7
45.2
47.7
50.2
52.9
55.7
58.5
81.6
650
68.4
72.0
75,9
80.0
84.4
889
93.7
98.6
1035
108.3
113.0
118.1
1234

12.4
13.8
15.3
17.1
19.2
21.2
23.2
25.4
27.4
29.4
31.5
33.5
35.5
37.5
39.5
41.8
43.2
44.7
46.4
48.3
50.2
52.3
54.7
57.2
800
63.0
861
69.3
728
76.6
80.3
83.7
873
90.7
94.2
97.8

< Pr*an*u(y data coUaclad on Form RW-8S9. '7«iclaar Fua« Data. "
iihaitfaO ttvouQh 1965.

Seurca: ProtaOkim i»artv«d Irani ttw imamattonal Nudsar Mo<M.

indlcaM Vial 124 ihouaand maiite tons of Initial haavy matal have tMwi dls-

World Nuclaar Fual Cycle Raqulramanta 1886
Enargy Infwmation Admtniatratkxi

■67

630

QUESTION 24e:

QUESTIONS FROM SENATOR JOHNSTON

Does DOE believe that the Nuclear Waste Policy Act
of 1982 authorizes the Department to take title to
spent nuclear fuel after January 31, 1998, even
though a repository is not operating?

ANSWER:

DOE'S obligation to accept waste is stated as

follows in section 302(a)(5) of the NWPA:

"Contracts entered into under this section shall
provide that -

(A) following commencement of operation of a
repository, the Secretary shall take title to the
high-level radioactive waste or spent nuclear fuel
involved as expeditiously as practicable upon the
request of the generator or owner of such waste or
spent fuel; and (B) in return for the payment of
fees estciblished by this section, the Secretary,
beginning not later than January 31, 1998, will
dispose of the high-level radioactive waste or
spent fuel involved as provided in this subtitle."

The Disposal Contract, developed through the

public rulemaking process, represents DOE's view

of the NWPA. As detailed in Article II, the

contract provides for DOE's acquisition of title

to the spent nuclear fuel and high-level

radioactive waste, transportation, and subsequent

disposal "after commencement of facility

operations, not later than January 31, 1998."

Article 1,10 of the Disposal Contract defines the
term "DOE facility" as "a facility operated by or
on behalf of DOE for the purpose of disposing of
spent nuclear fuel and/or high-level radioactive
waste, or such other facility (ies) to which
spent nuclear fuel and/or high level radioactive

631

- 2 -
ANSWER 24e: (Cont'd)

waste may be shipped by DOE prior to its transpor-
tation to a disposal facility." (emphasis added)*
Therefore, DOE believes that acceptance of title
and shipment of spent nuclear fuel and/or high-
level radioactive waste to an MRS, if authorized
by the Congress, would constitute an acceptable
DOE facility under the Disposal Contract and allow
DOE to meet its contractual obligation even though
a repository is not operating.

632

QUESTION 24 (fl)

ANSWER:

QUESTIONS FROM SENATOR JOHNSTON

Would DOE be authorized to take title to fuel
and store it at the reactor site?

When could this be done?

Who would pay for the storage casks?

What would be the implications for the
licensee for the reactor?

The NWPA does not address the question of DOE
taking title to fuel and storing it at the
reactor site.

DOE'S only authority under the NWPA in terms
of storage is defined in Section 131 as
follows:

(1) the persons owning and operating civilian
nuclear power reactors have the primary
responsibility for providing interim storage
of spent nuclear fuel from such reactors, by
maximizing, to the extent practical, the
effective use of existing storage facilities
at the site of each civilian nuclear power
reactor, and by adding new onsite storage
capacity in a timely manner where practical ;

(2) the Federal Government has the
responsibility to encourage and expedite the
effective use of existing storage facilities

633

- 2 -

ANSWER 24 (fl) CON'T

and the addition of needed new storage
capacity at the site of each civilian nuclear
power reactor; and

(3) the Federal Government has the
responsibility to provide, in accordance with
the provisions of this subtitle, not more
than 1,900 metric tons of capacity for
interim storage of spent nuclear fuel for
civilian nuclear power reactors that cannot
reasonably provide adequate storage capacity
at the sites of such reactors when needed to
assure the continued, orderly operation of
such reactors.

634

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 24 (f 2)

To what extent is DOE legally obligated to
take title to spent fuel after January 31,
1998?

How would this obligation be enforced?

ANSWER:

DOE'S legal obligation is as identified in
the response to 24(e) above. DOE is seeking
to develop the necessary facilities to meet
the intent of the Act and the terms of the
contract .

Enforcement, per se, should not be necessary
since DOE is committed to take title to spent
fuel as expeditiously as practicable upon
request of the generator and within the terms
specified in the contract.

635

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 24(g) :

What is the Department ' s exposure for failure to
accept fuel by January 31, 1998, under the
contracts that have been executed with the
generators of spent fuel?

ANSWER:

The disposal contracts explicitly cover delay
situations under Article IX. Under this section
of the contract, avoidable delays (within the
"reasonable control" of DOE or utility) allow
for an equitable adjustment of charges and
schedules to reflect additional costs incurred,
while unavoidable delays ("beyond the control
and without fault or negligence" of DOE or
utility) result in no liability and requires
only a readjustment to schedules to accommodate
delay.

636

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 24(h)

Is DOE authorized to provide financial
support for storage at a utility site of
utility-owned spent nuclear fuel under the
Nuclear Waste Policy Act? Cite the relevant
provisions of the Act.

ANSWER:

There are no provisions authorizing financial
support to utilities for storing spent nuclear
fuel under the Nuclear Waste Policy Act.

637

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 25a: Approximately a year ago, DOE awarded a $70-million
contract to Roy F. Weston Inc. for technical
support and overall management of the Waste
Program. A protest of the contract award was
sxibsequently upheld by the General Accounting
Office, and DOE is in the process of renegotiating
the contract with both Weston and NUS Corp.

— What is the status of contract negotiations with
the two companies?

ANSWER: Revised offers were received from NUS Corporation

and Roy F. Weston, Inc., on December 29, 1986. The

Defense Contract Audit Agency has audited all prime

and subcontractor cost proposals. The Source

Evaluation Bogrd has completed its initial

evaluations and will shortly begin oral discussions

with both offerors. Negotiations will follow

shortly thereafter and will be concluded with the

receipt of best and final offers and signed

definitized contracts. Selection consideration

will be based on the best and final offers

received, along with the signed definitized

contracts .

QUESTION 2 5b: When does DOE expect to have a new contract in
place?

ANSWER: Prior to, but not later than, July 30, 1987.

77-10A 0-87-21

638

- 2 -

QUESTION 2 5c: Why have contract negotiations taken so long?
ANSWER: The pace of contract negotiations has been delayed
by protests to the General Accounting Office (GAO)
and the Department of Energy (DOE) , as outlined in
the following chronology of events:
o Jan. 29, 1986: Source Selection Official (SSO)

selected Roy F. Weston, Inc.
o Feb. 12, 1986: NUS Corp. protested to GAO
o March 27, 1986: DOE report to GAO in response

to NUS protest,
o April 18, 1986: Weston commented on DOE report

to GAO
o June 20, 1986: GAO decision sustained the NUS

protest
o July 1, 1986: Weston requested reconsideration

of GAO's decision
o July 14, 1986: NUS commented on Weston's

request to GAO
o Sept. 19, 1986: GAO affirmed its June 20

decision
o Oct. 8, 1986: Weston requested a debriefing

from DOE Contracting Officer (CO.)
o Oct. 30, 198 6: CO. denied Weston's request for

a debriefing
o Nov. 3, 1986: Weston requested reconsideration

from the CO. and DOE

639

- 3 -

QUESTION 25c. (Cont'd)

o Nov. 14, 1986: CO. denied Weston's request for

reconsideration and accepted Weston's request as

an Agency protest
o Dec. 3, 1986: CO. submitted report for Agency

consideration
o Jan. 2, 1987: DOE Agency denial issued for

Weston protest.

The above actions delayed receipt of revised
proposals from R. F. Weston, Inc., and NUS
Corporation. As a result, the following amendments
to the RFP were issued:
A002 - (Nov. 6, 1986) revised requirements for

direct productive manhours and required

that revised proposals be received by

Dec. 8, 1986
A003 - (Dec, 4, 1986) extended the date for

proposal submission to Dec. 22, 1986
A004 - (Dec. 18, 1986) extended the date for

proposal submission to Dec. 29, 1986.

Revised proposals were received from NUS Corp. and
Roy F. Weston, Inc., on December 29, 1986. The SEB
opened and recorded receipt of both proposals on
January 6, 1987.

640

- 4 -

QUESTION 25d: Weston has held the technical support contract
since 1983.

— Describe the scope of Weston's work.

ANSWER: Weston provides technical support to OCRWM under a
level of effort, task assignment type, contract.
The technical support services are designed to
assist OCRWM in carrying out its mission pursuant
to the NWPA in seven general areas: Program
Analysis and Systems Engineering, Engineering
Economics, Regulatory Interactions, Geologic
Repository Deployment, Institutional/External
Activities, Technical Management, and Miscellaneous
Support .

QUESTION 2 5e: How has the scope of the work changed over the past
three years?

ANSWER: The basic scope of the contract has not changed

over the last three years. Tasking and expenditure
of effort under the contract have been driven by
the Office of Civilian Radioactive Waste
Management ' s need to respond to the mandates and
milestones contained in the NWPA. Since the
contract was negotiated prior to passage of the
NWPA, this proved to be a. more labor-intensive
undertaking than originally anticipated.
Therefore, the contractor was tasked to expend
direct productive manhours at a faster pace. As a

641

- 5 -
ANSWER 25e: (Cont'd)

result, what was intended as a 5-year contract was
used up in 3 1/4 years, i.e., March 18, 1983 -
June 20, 1986.

QUESTION 25f: How much of the work carried out by field office
contractors is coordinated by headquarters and/or
Weston?

ANSWER 25f: OCRWM Headquarters staff and Weston currently do

not directly coordinate the work of project office
contractors; this is the responsibility of
appropriate OCRWM project offices within DOE
Operations Offices. OCRWM provides technical
oversight and policy guidance to the project
offices. It is supported in its technical review
function by Weston.

QUESTION 2 5g: About what percentage of the work done by
Headquarters is carried out by Weston?

ANSWER: In its role as technical support contractor, Weston
provides assistance, advice and recommendations to
OCRWM in the general technical areas outlined in
response to Question 25d above. OCRWM, in turn,
performs those functions which are reserved for the
Federal Government and include, but are not limited
to, the use of discretionary judgment, the setting
of policy, and the approval of work delivered under
contract to OCRWM.

642

- 6 -

ANSWER 2 5g: (Cont'd)

In FY 1986, Weston expended approximately 300,000
direct productive manhours in support of OCRWM.
During the same period, OCRWM Headquarters
employees expended approximately 286,000 hours (137
full-time equivalents) .

QUESTION 25h: DOE has extended the Weston contract for three-
month intervals since June 1986 when the GAG found
the Department's contract selection process
flawed .

— Has DOE'S program suffered because of this stop-
gap method?

— What problems have been caused by the lack of a
permanent contractor in place?

ANSWER: Weston is currently authorized to expend not more
than 25,000 direct productive manhours (DPMH)
monthly (300,000 DPMH annually), in support of
OCRWM. The successor contract will be based on
an expenditure rate that is approximately 10
percent higher and more realistic in terms of
current program requirements. The difference,
approximately 16 staff year equivalents, has
resulted in some work being deferred. However, the
impacts to date have been tolerable on a short-term
basis. Because of the uncertainty surrounding
award of the successor contract, Weston has also
experienced some difficulty in filling vacancies

643

- 7 -
ANSWER 25h: (Cont'd)

resulting from staff attrition. Overall, the
impact on the program thus far has not been
significant.

644

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 26: The lack of centralized control over field project
offices in carrying out the waste program has been
cited by the General Accounting Office and others
as having a detrimental effect on DOE's ability to
manage the program.

— Describe your plans to put a single contractor in
place to manage the overall system and integrate
work done by the field offices and contractors.

— How long would it take to reorganize and put such
a contract in place?

ANSWER:

The Department recognized that the waste program
must pursue a new approach that improves overall
program direction and control in order to assure
meeting Nuclear Waste Policy Act requirements and
timing. A joint Headquarters/ field working group
developed several management options which were
submitted to the Director of the Office of Civilian
Radioactive Waste Management. On February 5, 1987,
the Secretary approved the option as recommended by
the Director.

Under this option, Headquarters will assume direct
management responsibility for the implementation of
major program elements, using an integrated
contractor to accomplish the systems engineering
and development (SE&D) work for the technical
management and integration of the nuclear waste
management system.

645

- 2 -

On February 13, 1987, and April 1, 1987, notices
were published in the Commerce Business Daily
announcing the intent to issue a Request for
Proposals (RFP) for the SE&D work. The RFP is
currently being prepared at DOE Headquarters.

It is estimated that the contract will be awarded
within one year, with a one-year phase- in period
after award to allow for an orderly transition of
responsibilities .

646

QUESTIONS FROM SENATOR JOHNSTON

QUESTION 27: a. Why did DOE publish its cost allocation proposal
as a Notice of Inquiry instead of a formal
r\ilemaking, as was used when DOE developed its
standard contract with utilities for payments to
the waste fund?

— In the interest of equity between the civilian
and defense sectors in establishing a payment
process, would it not be more appropriate to
use a formal rulemaking?

b. What process does DOE intend to follow in
evaluating comments received in response to its
notice of inquiry?

c. When will DOE finalize the defense payment
mechanism?

d. Once a defense payment mechanism is finalized,
will DOE'S Office of Defense Programs have a
legally binding contract requiring payments to
the waste fund on a set schedule as the
utilities do?

— If not, why not?

e. Will defense payments to the waste fund be
subject to annual appropriations by Congress?

f. DOE has not requested money in its fiscal year
1988 budget for defense payments to the waste
fund.

— Why not?

— Will DOE submit a budget sunendment to Congress
to accommodate these payments once the
mechanism is finalized?

— If not, why not?

— When does DOE anticipate defense payments to
the waste fund will begin?

g. What will be the timing of defense payments to
the waste fund?

— Will there be a payment made for defense waste
generated prior to April 7, 1983, similar to
the so-called one-time fee paid by utilities?

647

-2-

QUESTION 27: (Cont'd)

— Will the defense payments be paid as the waste
is generated, as is the case with ongoing fee
paid by utilities.

h. Any utilities that did not pay their one-time
payment in full by June 30, 1985, will pay
interest on the remainder of this payment.

— Does DOE plan a similar process for defense
payments? If not, why not?

i, DOE'S estimate of the amount of commercial spent
fuel to be disposed of in a repository is based
on the Energy Information Administration's Mid-
Case projection of 13 0,000 metric tons of
uranium in 2020. This is considered a high
estimate. On the other hand, the estimate of
defense waste used by DOE to calculate the
defense share of costs is 16,000 canisters
(about 8,000 MTU) of defense waste, which is
considered a low estimate.

— By using a high estimate for spent fuel
generation and a low estimate for defense
waste, doesn't this result in a skewed
allocation of costs between the civilian and
defense sector?

j. DOE'S Mission Plan of June 1985 estimates that
20,000 canisters of defense waste will be
solidified for disposal by 2020.

— Why hasn't this estimate been used instead of
16,000?

— Isn't it true that even the estimate of

20,000 canisters does not include any of the
waste that will be generated at the Idaho
National Engineering Laboratory?

— Why not?

k. In comments on DOE's Notice of Inquiry, several
utilities suggested that the inventory of
defense waste already exceeds 16,000 canisters
and that 20,000 would be a more appropriate
figure.

— How much defense waste is currently in
storage?

648

QUESTION 27;

-3-

(Cont'd)

— At Hanford?

--At Savannah River?

— At Idaho?

ANSWER 27a:

1. Estimates of the amount of canisters that would
be required to acoommodate the waste in the
single-shell tanks at Hanford are as high as
21,500.

— Is this an accurate estimate?

— When will a decision be made on whether to
remove the sludge and waste from the single-
shell tanks for disposal in a repository?

— Given the potential high volvime of waste that
might require disposal, why hasn't DOE
included this in its assessment of costs?

m. Very few commenters on DOE's Notice of Inquiry
endorse the option selected by DOE. The
utilities have suggested an alternative approach
that would combine two of DOE's options. They
suggest use of DOE's preferred option (shared
costs based on either the area required for
defense waste disposal, the number of defense
packages to be disposed, or the nximber of
defense packages to be process) where costs are
directly related to the waste handled. But
where costs are independent of the type or
eunount of waste handled, the utilities suggest
that costs be divided with utilities paying 2/3
and defense programs paying 1/3.

— Please comment on this suggested alternative.

The purpose of the Notice of Inquiry (NOI) was

to solicit public comment on a proposed fee

calculation methodology that will lead to the

determination of a fee payment methodology for

defense high-level waste (DHLW) . The fee

payments will be subject to Congressional

appropriation .

649

-4-

ANSWER 27a: (Cont'd)

The Department cannot establish a rule that binds
Congress to appropriate money. A malemaking
procedure was not considered appropriate for
the determination of the DHLW fee.

ANSWER 27b: The comments are being reviewed by the Office of
Civilian Radioactive Waste Management (OCRWM) and
the Office of Defense Programs (DP) and will be
used to assist the Department in the final
determination of a fee calculation methodology. It
is the Department's intention to publish a Notice
in the Federal Register identifying the selected
methodology, and to include in that Notice
responses to the comments that have been submitted.

ANSWER 27c: The Department plans to finalize the fee

calculation methodology by the summer of 1987.
Subsequently, an agreement between the Offices of
Civilian Radioactive Waste Management and Defense
Programs will be executed which will include an
initial schedule of the amount of funds to be
requested annually in the Department's budget.

ANSWER 27d: The payment of DHLW disposal fees will require a

Congressional appropriation. The Department cannot
legally bind the Congress to make such

650

- 5 -

ANSWER 27d: (Cont'd)

appropriations. It is anticipated that the
Department will request funds each year through the
normal budget cycle.

ANSWER 27e: As discussed in d. above, defense payments will be
subject to annual appropriations by Congress.

ANSWER 27 f:

A budget request for payments by DP to OCRWM would
be more meaningful after a determination has been
made on the methodology to be used to arrive at the
total amount due.

In preparation for this, on December 2, 198 6, the
Department published a notice in the Federal
Register that discussed alternative methods for
calculating a fee for the disposal of DHLW. The
Notice invited pxoblic comments through February 2,
1987. These comments will be used in discussions
during the next few months that are expected to
result in an agreement between OCRWM and DP on a
provisional basis for a total fee. It is expected
that this basis will be reexamined annually as
estimates of the costs of handling DHLW improve.

Once an initial estimate of total defense waste
fees has been determined, alternative payment
schedules will be examined. When a payment
schedule has been determined, the Department will

651

-6-

ANSWER 27f: (Cont'd)

decide whether it is more appropriate to handle the
initial request for payments through an amendment
to the current budget or to schedule the initial
request for payments as a part of the next annual
budget cycle.

ANSWER 21 q:

As mentioned in f. above, once the initial estimate
of total defense waste fees has been determined,
alternative payment schedules will be examined.
The alternatives will consider similarities and
differences between the provisions of the Standard
Contract and the alternatives for payment of
defense waste fees. The ultimate consideration
will be that neither the defense nor civilian waste
disposers should subsidize the other. Since the
DHLW disposal fee is to cover the full costs of
DHLW disposal by OCRWM, the fees ultimately paid
will cover the costs of pre-1983 wastes.
Currently, it has not been determined whether the
DHLW fee payments will be paid as the waste is
generated, paid as a share of the ongoing costs of
the OCRWM program, or paid according to some other
schedule.

ANSWER 2 7h: As noted in the NOI, the total defense waste fee

payment is to equal the present discounted value of
the cost of DHLW disposal by OCRWM. This means

652

-7-
ANSWER 27h: (Cont'd)

that the costs of delayed payment, in the form of
interest, are considered to be an integral part of
the cost of defense waste disposal and will be
included in the disposal fees paid by DP.

ANSWER 27 i:

It is true that lower spent fuel projections would
increase the defense waste fee, using the
methodology as proposed in the NOI. It is also
true that there is uncertainty in the spent fuel
and defense waste projections.

It should be noted, however, that the quantities of
civilian and defense waste used in the KOI were for
illustrative purposes only. Ultimately, the total
amount of funds paid into the Nuclear Waste Fund
for the disposal of defense waste will be
determined from the relative quantities of waste
actually emplaced.

ANSWER 27j : The estimate of 20,000 canisters has been used in

previous studies. However, 16,000 is a more recent
estimate, and is the number that has been baselined
for OCRWM planning purposes.

The 16,000 canisters is comprised of waste from
three defense sites as follows:

- 8 -

ANSWER 27j :

(Cont'd)

Site

Canisters

Savannah River

Hanford

Idaho

Future Production

7,000
1,500
6,000
1,500

TOTAL

16,000

ANSWER 27)c:

No canisters of defense waste have been produced to

date. Of the estimated 16,000 canisters of defense

waste to be produced, the quantity of existing

waste is eqxiivalent to about 6,600 of the 16,000

canisters. The total amount of defense waste that

currently exists is equivalent to about 30,700

canisters. This includes estimates of waste at

Hanford for which no decision has been made

regarding the need for disposal in a repository.

The following is a summary of defense waste at the

three sites:

Equivalent Canisters of
Existing DHLW as of 1986

Savannah River

Hanford

Idaho

TOTAL

OCRWM
Planning
Estimate

4,900
800
900**

6,600

All Existing
DHLW

4,900

22,800*

3,000

30,700

♦Includes Hanford waste in single-shell tanks
and cesium/ strontium capsules for which no
decision has been made regarding method of
disposal.
**Assumes a volume reduction, for removal of
inert materials, equivalent to 2,100 canisters.

654

- 9 -
ANSWER 27k: (Cont'd)

A reference for the data used in Answers j. and k. is
Table 4.1 of the document "Perspective on Methods to
Calculate a Fee for Disposal of Defense High-Level Waste
in Combined (Civilian/Defense) Repositories," DOE/RL-86-
10, dated December 1986.

It should also be noted that the 16,000 canisters
currently being used in OCRWM planning accounts for over
90 percent of the total radioactivity in the total
projected defense waste quantities through the year
2020.

ANSWER 271: This is the best estimate at this time. The

accuracy of the estimate will not be known until, and
unless, the single-shell tank wastes are processed for
disposal. As noted, the NOI included only DHLW that is
virtually certain to be transferred to OCRWM.
Environmental assessments need to be made before a
decision on final disposal for the single-shell tank
wastes can be determined. If it is determined that
additional DHLW will be emplaced in the repository, the
OCRWM estimates will be revised accordingly.

ANSWER 27m: The use of the 1/3-2/3 sharing of certain fixed costs of
the combined OCRWM disposal system, which has been

655

- 10 -
ANSWER 27m: (Cont'd)

suggested as reflecting a sharing of avoided fixed costs
for DHLW and spent nuclear fuel disposal, respectively,
is currently under consideration together with all
other comments received in response to the NOT.
No decision has been made at this time.

656

QUESTIONS FROM SENATOR McCLURE

QUESTION 1: Is it your intention to proceed with implementation
of the nuclear waste program along the lines
proposed in the Mission Plan amendment unless
Congress fails to take some affirmative action to
reject what you have proposed, or would the
Congress, in your view, have to take affirmative
action to approve the Mission Plan amendments
before you could proceed with implementing the
changes? In short, what posture are we in if no
action is taken by Congress when these amendments
are submitted?

ANSWER:

The 5-year extension of the date to begin
operations of the first repository, and the
indefinite postponement of site-specific work for
the second repository described in the Draft
Mission Plan Amendment are proposals to the
Congress of the Department ' s best estimate of how
the program can be carried out. The Department's
position is that if Congress does not affirm the
plan and implementation schedule described in the
Mission Plan Amendment, then the Department will go
back and do its utmost to meet the requirements of
the Act although it is already clear that some of
the schedules would be extremely difficult, if not
impossible, to achieve while striving to meet the
level of quality required for the program.

657

QUESTIONS FROM SENATOR McCLURE

QUESTION 2: In a September 5th, 1986, legal analysis prepared

by the Department's General Counsel, Mr. Rusche was
told that: (a) the Nuclear Waste Policy Act
includes "specific requirements to make
recommendations regarding the site of the second
repository in 1989 and 1990"; (b) "as statutory
requirements, they remain intact until repealed,
amended or supplanted by new legislation adopted
through constitutionally-required procedures of
bicameralism and presentment to the President" ; and
(c) "an cunendment (to the Mission Plan) , standing
alone, would not have the legal effect of altering
the provisions of sections 112 and 114 that require
particular recommendations by particular times
regarding a second repository site." As I
understand what your lawyers are saying, the
Department is required to proceed with a second
repository program, regardless of what is proposed
in the Mission Plan, unless Congress amends the Act
to eliminate these requirements. Do you disagree
with this conclusion and, if not, how do you
reconcile your position that you can implement
these Mission Plan amendments if Congress does not
act affirmatively to reject them with what your
lawyers are telling you?

ANSWER:

The Department concurs in the positions outlined in
the legal analysis prepared by the General Counsel.
The Department does not claim any authority
unilaterally to change existing law. Nor should
the judgments made by the Department and reflected
in the draft Mission Plan Amendment be
characterized in this fashion.

658

- 2 -

in administering these programs, of the course and
timing that the first and second repository
progreims should take given current circumstances.
The Department recognizes that carrying out these
programs in the way described in the proposed
amendments to the Mission Plan will require
legislative action to accomplish.

659

QUESTIONS FROM SENATOR McCLURE

QUESTION 3:

You have argued in the past that what the
Department is proposing with respect to the second
repositoiry is really no different than earlier
delays in implementing the program — and that
since Congress was informed and did not reject
these earlier delays, that somehow you are
justified in now announcing an indefinite
postponement of the second repository. Isn't there
a significant difference in making a good faith
effort to meet the deadlines, but nevertheless
missing those deadlines, versus a decision not even
to make a good faith effort to meet the deadlines
and simply postponing the program? Isn't there an
important legal difference between these two
situations?

ANSWER:

As indicated above, in the draft Mission Plan
Amendment, the Department has presented its
recommendations on the course and timing for the
first and second repository. Further, the
Department recognizes that if Congress does not
affirm the Department's recommendations, we will go
back and try to meet the specific dates and
requirements of the Act although some of the
schedules are probably unattainable.

QUESTION 4;

ANSWER:

660

QUESTIONS FROM SENATOR McCLURE

As I understand your MRS proposal, you would tie
operation of an MRS to issuance by the NRC of a
construction authorization for a high-level waste
repository. Now that you are proposing to delay
the date when NRC issues a construction authori-
zation by four and one-half years, does this
suggest that you will also need to rework the MRS
proposal and to incorporate these new assumptions
with regard to the schedule?

In the development of the MRS proposal, the one

most often cited concern is that an MRS facility

would diminish the resolve to develop a geologic

repository. To allay such concerns and to

reinforce this country's unwavering commitment to

the geologic repository program, the DOE planned

proposal to Congress links the startup of the MRS

facility to the schedule of the repository: no

waste may be accepted at the MRS facility until a

construction authorization for the first repository

is received from the NRC.

The Department continues to believe that the
operation of the MRS should be tied to the issuance
of a construction authorization by the NRC for a
repository. Although the date when NRC issues a
construction authorization is delayed four and one-
half years until the first quarter in 1998, this
still allows the MRS to commence operations to meet
our contractual obligations. Obviously, any

661

- 2 -

additional delays in the date a construction
authorization is received for the first repository
would impact our ability to meet our contractual
obligations by accepting spent fuel at the MRS.

662

QUESTIONS FROM SENATOR McCLURE

QUESTION 5: On page 44 and 45 of your draft Mission Plan

Amendment, you point to the final environmental
assessments as one factor that gives you confidence
that the first repository sites will be suitable
and that, accordingly, a second repository can be
deferred. Isn't it true that, in fact, the NRC was
highly critical of DOE's environmental assessment
and specifically noted that "some conclusions in
all five final EA's are still overly favorable or
optimistic"? How do you reconcile your optimistic
view of the EA's with what NRC has said, and do you
intend to rework the EA's to address the NRC
concerns?

ANSWER:

We believe that our own technical experts'
estimates of postclosure performance were a
reasonable basis for the decision at hand —
selecting sites that appear to justify the
investment in characterizing them. DOE's technical
experts provided these estimates of postclosure
repository performance at the five sites employing
reasonably conservative assumptions. Uncertainties
were accounted for using recognized, state-of-the-
art practices. For example, judgmental probabil-
ities of occurrence of scenarios were generated
only after the technical specialists were
introduced to the theory of judgmental probability
and apprised of the biases that experiments have
shown can produce distortions in probability
estimates.

It is clear that the level of proof required for
licensing will be greater than can currently be
demonstrated. However, all five sites appear to

663

- 2 -

exceed regulatory requirements by large margins;
accounting for additional uncertainty as suggested
by the NRC comments would likely not alter the
conclusion that all sites are above the threshold
of acceptability. In other words, all sites appear
suitable and none appear to be disqualified. Data
gathered and analyzed during site characterization
will demonstrate the proper values to be applied in
evaluating the sites.

DOE does not intend to rework the EAs to address
NRC's observations; however, the NRC analyses will
be invaluable in developing site investigations
plans. To rework the EAs would not be consistent
with NRC's stated purpose for providing DOE with
the comments in the first place: "for consideration
by DOE in the development of the Site Characteri-
zation Plans." DOE has held, and will continue to
hold, technical meetings with NRC to discuss the
treatment of uncertainties and alternative
interpretations of data in Site Characterization
Plans. Such pre-licensing interactions are an
important means to determining a site's suitability
for development as a repository.

QUESTION 6;

664

QUESTIONS FROM SENATOR McCLURE

As I understand the rationale behind the various
provisions in the Nuclear Waste Policy Act, success
of the whole prograun was assured by providing
"backups" in the following ways:

(1) characterization of at least three Ist-repository
candidate sites;

(2) proceeding with second repository site selection
work on a track approximately 5 years behind the
first repository schedule;

(3) submission of an MRS proposal to Congress by June,
1985.

Now, I can certainly understand, in view of the
court proceedings, why Congress has not seen an MRS
proposal, which explains why monitored retrievable
storage, as a third option, is not yet on the
table.

But it is clear to me that the Department's
indefinite postponement of the second repository
work has eliminated, for all practical purposes,
the second option I cited.

Which leaves us with all our eggs in the first
basket. This would be acceptable from a purely
technical standpoint, provided that all goes well
during the site characterization process. But this
is not acceptable, in many people's view, from the
standpoint of the overall balance of the program,
as embodied in the Act.

Did you consider any other options prior to final
preparation of your Mission Plan amendments? I
mean, even your Chief Counsel agrees that whatever
you do that is different from the Act requires that
Congress amend, repeal, or supplant the original
statute. So why not do some real brainstorming, and
present us with options that at least might sustain
some sense of program balance?

ANSWER:

Many options, including contingencies and
"backups," have been considered. Some of these
contingencies were documented in the June 1985
Mission Plan (Section 2.4). The Department
considers that the program described in the draft

665

- 2 -

Mission Plan Amendment is the best and most
balanced way to carry out the program considering
where we are now and the experience we have gained
thus far. In regard to the first repository
program, given the thoroughness of the analyses in
the Environmental Assessments, the information
base, the results obtained with the decision-aiding
methodology, and other considerations, the
Department considers that the set of three sites
recommended provides the most advantageous
combination of characteristics and conditions for
the successful development of a repository.

The Department has not eliminated the second
repository. The Department intends to continue a
program for, and remains committed to, a second
repository, with studies that will focus on generic
technical issues. The Department believes that
site-specific work should be reconsidered in the
mid-1990 's which would allow ample time to
implement a second repository program prior to the
first repository achieving its 70,000 metric ton
capacity. However, we have testified that we will
go back and pursue site-specific work if Congress
does not affirm the Department's proposal in the
draft Mission Plan Amendment.

666

- 3 -

Finally, the Department has, on March 31, 1987,
submitted the Monitored Retrievable Storage (MRS)
proposal to Congress required by Section 141 of the
NWPA. An MRS could be operational to receive spent
fuel by 1998.

667

QUESTIONS FROM SENATOR McCLURE

QUESTION 7 : I agree with you that a healthy relationship

between DOE and the affected States and Indian
Tribes is paramount to the program's overall
success:

(a) What are you doing to initiate C&C
negotiations with Texas and Nevada?

(b) What are you doing to bring C&C negotiations
with Washington State to a close?

(c) You mention in the Mission Plan amendments that
a waste disposal facility "may lead to special
socioeconomic burdens that were not
contemplated when the Act was passed." Could
you eleiborate on these "burdens", and what
could be done to alleviate these "burdens"?

ANSWER 7(a): On May 28, 1986, President Reagan approved the
Department's recommendation that sites in three
states - Nevada, Texas, and Washington - be
selected for site characterization. On July 25,
1986, Mr. Jefferson O. Neff, Manager of the Salt
Repository Project Office, wrote to Mr. Steve
Frishman, Director of the Texas Nuclear Waste
Programs Office, to invite the State of Texas to
participate in a joint meeting with representatives
of all states within which recommended sites are
located and all three affected Indian Tribes for
the purpose of developing a Consultation and
Cooperation Agreement. Mr. Frishman replied in a
telephone conversation with DOE Headquarters staff
on August 19, 1986, that a joint meeting between
the Department and State and Tribal nuclear waste
offices would not be appropriate at that time,

668

- 2 -

although such a meeting might be worthwhile in the
future and felt that individual State negotiations
should take place first.

In response to this interest in individual
negotiations, a letter was sent to Governor Mark
White of Texas on November 20, 1986, to renew the
Department's offer to negotiate a Consultation and
Cooperation Agreement, this time directly between
DOE and the State of Texas. Steve Frishman
responded to this letter on December 5, 1986, by
acknowledging DOE's designation of a team to
initiate negotiations with Texas.

On July 25, 1986, Mr. Donald Vieth, Director of the
Waste Management Project Office at DOE's Nevada
Operations Office, wrote to Mr. Robert Loux,
Executive Director of the Nevada Nuclear Waste
Project Office, to invite the State of Nevada to
the joint CStC meeting described above. Mr. Loux
replied in a telephone conversation with DOE
Headquarters staff on August 19, 198 6, that he did
not see the need for a joint meeting at this time.
In a letter dated August 27, 1986, to Mr. Vieth,
Mr. Loux reiterated this, and also indicated that
the State of Nevada would likely be in a position

669

- 3 -

to initiate direct negotiations with the Department
in the near future.

In response to this interest in individual negotia-
tions, a letter was sent to Governor Richard Bryan
of Nevada on November 19, 198 6, to renew the
Department's offer to negotiate a Consultation and
Cooperation Agreement, this time directly between
DOE and the State of Nevada. On December 16, 1986,
Governor Bryan replied, charging that the implemen-
tation of the Nuclear Waste Policy Act by the
Department of Energy has made it "impossible for
the State of Nevada to have any confidence or trust
in any negotiations with the Department of Energy
regarding the implementation of the balance of the .
program..." On January 19, 1987, Governor Bryan
wrote another letter to the Department of Energy
indicating the reason for his statements made in
the letter of December 6, 198 6, and declining at
this time to enter into negotiations for a
Consultation and Cooperation Agreement with the
Department .

section 117(c) of the NWPA requires that DOE
prepare a report to Congress if a written C&C
agreement is not completed within 6 months after
DOE seeks to enter an agreement. Prior to

77_10A 0-87-22

670

- 4 -

submission to Congress, the report must be sent to
the State or Indian Tribe for review and comment.
These comments must be included in the report
before it is sent to Congress. On December 23,
1986, reports were sent to the three States and
three Indian Tribes with candidate sites. DOE has
received comments from Texas and Nevada on the
reports and accompanying comments will be forwarded
to Congress shortly.

ANSWER 7(b): On July 27, 1983, the State of Washington initiated
consultation and cooperation negotiations with the
Department. These negotiations, which were
suspended by the State of Washington pending
resolution of several issues, were described in a
report on the status of negotiations for a
Consultation and Cooperation Agreement transmitted
to Congress on September 26, 1984.

On May 28, 1986, President Reagan approved the
Department's recommendation that sites in three
states - Nevada, Texas, and Washington - be
selected for site characterization. On July 25,
1986, Mr. Lee Olson, Director of the Basalt Waste
Isolation Division at DOE's Richland Operations
Office wrote to Mr. Terry Husseman, Program
Director, Washington Office of High-Level Nuclear

671

- 5 -

Waste Management, to invite the State to renew the
process of developing a Consultation and Cooper-
ation Agreement with a meeting of representatives
of all States within which recommended sites are
located and all three affected Indian Tribes. Mr.
Husseman replied in a telephone conversation with
DOE Headquarters staff on August 19, 1986, that the
State did not see the need for the consultation and
cooperation process to be a joint effort, and that
the State of Washington wanted only direct negotia-
tions with DOE. The State of Washington requested
an informal meeting to discuss negotiation
procedures in a letter sent to Michael Lawrence,
Richland Operations Office, on August 25, 1986.
Such a meeting was held between DOE and the State
on October 9, 1986.

In response to the state's interest in individual
negotiations, a letter was sent to Governor Booth
Gardner of Washington on November 19, 1986, to
renew the Department's offer to negotiate a
Consultation and Cooperation Agreement, this time
directly between DOE and the State of Washington.
On December 18, 1986, the Governor and the Director
of the Office of Civilian Radioactive Waste
Management met and among the topics discussed were
Consultation and Cooperation. The Governor

672

- 6 -

indicated a reluctance to participate in
Consultation and Cooperation negotiations unless
certain conditions were met. He indicated that he
would make a more specific proposal shortly.

On December 30, 1986, Governor Gardner sent a
proposal to Secretary Herrington of the Department
of Energy, regarding a conflict resolution process
that he felt would aid in consensus building and a
mid-iourse correction and enable key stakeholders
to be brought together. This proposal is currently
being reviewed by DOE management.

On January 27, 1987, Governor Gardner sent a letter
to the Department commenting on its report to
Congress, and noting again that the conflict
resolution process is a good mid-course correction
action for the program.

The Department of Energy is looking forward to
working with the states of Nevada, Texas, and
Washington, as well as with the affected Indian
Tribes, to negotiate a C&C agreement.

ANSWER 7(c): The Department and the nuclear utilities safely

operate nuclear facilities that handle spent fuel
and high-level nuclear waste throughout the country
and there is excellent reason for confidence that

673

_ 7 -

the solid high-level waste and spent fuel can be
safely disposed of in deep underground solid-rock
repositories. At the same time, however, the
facilities associated with the management of
nuclear wastes under the Nuclear Waste Policy Act
are perceived as hazardous and controversial.
Regardless of its validity, this perception creates
a burden in the eyes of the potential host
communities and States. It is seen as a potential
stigma that, if it continues for the duration of
the progreun, could impact the ability of these
areas to recruit new business or to retain existing
commerce.

The draft Mission Plan Amendment suggests that
Congress may wish to consider making assistance
available to affected States and Indian Tribes on a
broader basis than just the impact mitigation
required by the Act. In doing so, Congress may
help the waste management facilities to be
perceived as being of net benefit.

674

QUESTIONS FROM SENATOR WEICKER

QUESTION 8: In your proposed Mission Plan Amendments, will any
work continue into the handling and transportation
of high level nuclear wastes to repository sites?

ANSWER:

There are no provisions in the draft Mission
Plan Amendment that will significantly impact the
level or schedule of work related to the handling
and transportation of high-level waste. The event
driving the timing for the development of the
transportation system is the operation of the
Monitored Retrievable Storage (MRS) Facility. The
Department submitted the MRS proposal to Congress
on March 31, 1987. If approved during FY87, the
facility can be constructed on a schedule that will
allow the initial acceptance of utility spent fuel
in 1998. To support that intent, the transpor-
tation system must be operational at the time of
fuel acceptance.

675

QUESTIONS FROM SENATOR WEICKER

QUESTION 9: Will safety and transportation procedures developed
in the establishment and operation of the first
repository be used as a precedent in procedures
developed for the second repository?

ANSWER:

The safety and transportation procedures that are
developed and implemented in the establishment and
operation of the first repository will provide a
precedent for the procedures used in the second
repository. It is expected that changes would
occur only to accommodate any requirements of loca-
tion or to incorporate any "lessons learned" from
the experience available from the first repository
or from other safety and transportation technology
developments .

676

QUESTIONS FROM SENATOR WEICKER

QUESTION 10: What new technologies will need to be developed for
construction of the proposed MRS?

ANSWER: The proposed MRS is basically a hot cell complex,

involving remote spent fuel handling techniques

developed by the Department's contractors and the

domestic and foreign nuclear industry over the

years.

Therefore, the creation of new technology for the
construction and operation of the MRS is
unnecessary. However, the application of the
existing technology to the MRS to accomplish the
packaging of the volume of spent fuel planned for
the MRS will require additional engineering
demonstration. In particular, the disassembly and
consolidation of spent fuel has not been performed
on a production line as may be desired for an MRS
or a geologic repository packaging facility. In
1986, the Department instituted a competitive
program inviting private industry to develop such
equipment for demonstration by the Government at
its Idaho facilities.

677

QUESTION FROM SENATOR WALLOP

QUESTION 11:

Mr. Secretary, my question does not relate directly
to the issue of high level nuclear waste, but
rather to remedial cleanup of existing uranium mill
tailings. For more than three years, the State of
Wyoming has been trying to reach an agreement with
the Department of Energy regarding cleanup of the
Susquehanna mill tailings pile at Riverton,
Wyoming. The State has proposed what appears to be
the only sensible solution, to move the tailings to
a stabilized site. On January 9, the Wyoming
congressional delegation wrote to you asking that a
decision be made promptly on the proposed removal.
We had requested a response by January 31. Though
you have two more days to respond, could you
provide us with an answer now on the proposal by
the State of Wyoming?

ANSWER:

The Department is anxious to reach agreement with
the State so that remedial action on this high-
priority site near Riverton can proceed
expeditiously. The Department is willing to
consolidate the mill tailings from the Susquehanna
site, subject to the resolution of several issues
unique to this situation. We are committed to
working with the State to promptly resolve these
issues and rapidly move forward with remedial
action.

678

QUESTIONS FROM SENATOR HECHT

QUESTION 1: DOE intends, at least for the high-level waste
repository, to obtain NRC certification of its
transport casks. Isn't it true that DOE has never
before been able to obtain NRC certification of a
cask for the transport of spent fuel although DOE
has submitted 11 applications to NRC?

(a) Is there any reason why DOE should not be
required to obtain NRC certification for all
of its spent fuel casks?

(b) If we require private licensees to meet NRC
standards before actually making shipments in
their casks, why shouldn't DOE contractors be
sxibject to the same requirements?

(d) Are DOE's technical employees of the opinion
that the NRC certification standards do not
measure a cask's ability to withstand the
accident stresses which those standards are
designed to measure?

(e) Will there be anything about DOE's shipping
campaign to the repository that will be
different from shipping campaigns conducted by
NRC licensees such that safety will be
ensured in some way other than DOE's casks
meeting the NRC standards?

(f) Hasn't DOE designed a shipping container for
shipping transuranic waste to the Idaho
National Energy Laboratory and the Waste
Isolation Project in New Mexico called TRUPACT
I which cannot meet certification standards
equivalent to NRC's as required by DOT's
regulations?

(g) Based on DOE's track record with past applica-
tions to NRC for certification of spent fuel
casks and its plans to use a shipping
container for transuranic waste which cannot
meet NRC certification, what assurance can DOE
offer that NRC will find the next generation
of spent fuel casks to be acceptable, absent
Congressionally mandated changes in current
laws and regulations?

679

- 2 -

ANSWER 1: Although DOE may certify its own packages, there
are a variety of DOE packages having NRG
certificates. There are at least three spent fuel
casks now in service with both DOE and NRC
certificates.

(a) DOE certification authority is derived from
the Atomic Energy Act and DOT regulations (49
CFR 173) . The DOE standard for Type B
packages is the NRC regulation (10 CFR 71) .
DOE applies the same rigorous standards of
review to its packaging safety analysis
reports as does the NRC. There is, then, no
reason to require NRC certification for all
spent fuel casks.

(b) DOE and its contractors apply the same high
standards of NRC's 10 CFR 71.

(c) DOE technical employees hold the NRC review
process in high regard. Like most
professions, scientists and engineers can
disagree on approach. However, our goals are
identical — protection of the public health and
safety.

680

-3-

(d) DOE believes the NRC certification standards

indeed provide a high degree of protection for
radioactive materials,
(e) The OCRWM will comply with the applicable

safety and security requirements of the NRC
and DOT when shipping commercial and defense
nuclear waste to NWPA facilities. Safety and .
security shipping regulations of the NRC and
DOT currently include requirements
for cask design and testing, physical protec-
tion of shipments from acts of theft and sabo-
tage, shipment prenotif ication, driver
training, shipment-identification procedures,
and highway-routing procedures. In developing
the NWPA transportation system, the OCRWM will
evaluate innovative methods for achieving
regulatory compliance and safety objectives.
For example, the DOE is currently evaluating
the use of real-time satellite tracking of
shipments. If operation of the system proves
successful, the OCRWM will review its applica-
tion to NWPA shipments in cooperation with
States, Indian Tribes, and local governments.

681

- 4 -

To direct actual NWPA shipments, safety and
security procedures for NWPA shipments will be
specified in an operations procedure manual.
The manual will serve as a management guide
and control system for the OCRWM and contrac-
tor management. To further promote the safety
of NWPA transportation activities, the OCRWM
is developing a quality assurance plan; the
plan will describe quality assurance responsi-
bilities, authorities and management organiza-
tion and requirements.

(f) DOE has designed, fabricated and tested

TRUPACT I to transport contact handled trans-
uranic waste generated in support of DOE's
defense activities. Upon completion of certi-
fication, TRUPACT-I could be used to make
shipments to the Waste Isolation Pilot Plant
from 12 sites nationwide with 80 percent of
the shipments originating at the Idaho
National Engineering Laboratory in Idaho, the
Rocky Flats Plant in Colorado, and the Hanford
Reservation in Washington.

682

- 5 -

In anticipation of the needs of the Waste
Isolation Pilot Plant (WIPP) , development of
the TRUPACT-I system was initiated in 1978
under the technical direction of Sandia
National Laboratories with the intent of
designing an entirely new packaging for the
express purpose of safely transporting
transuranic wastes to the WIPP. These contact
handled (CH) transuranic wastes (TRU) are
nonradioactive items contaminated with alph-
emitting transuranium radionucles with half-
lives greater than 20 years and concentrations'
greater than 100 nCi/g of waste. These every-
day items used at DOE facilities include rags,
rubber gloves, shoe covers, cloth lab coats,
plastic bags, and discarded laboratory glass
and metalware that are placed in metal Type A
packagings and then loaded into Type B
packagings, TRUPACT-I. This development
process has spanned at least two major
revisions of the transportation regulations
and several modifications to the program goals
and objectives and has produced a safe,
thoroughly tested Type B packaging. A combi-
nation of design features and waste packaging

683

- 6 -

requirements provides equivalent (if not
greater) safety to current NRC and DOE regula-
tory requirements for containment of radio-
activity during normal and accident
conditions.

A prototype TRUPACT-I was subjected to

10 CFR 71 regulatory accident tests to show

that this 50,000 pound Type B packaging meets

these containment criterion for radioactivity

and other packaging performance criteria.

The criterion assures that only 0.002

curie of plutonium 239 can be released to the

environment during a one-week period following

an accident even though up to 2000 curies of

Pu239 may be present in the containment liner

of TRUPACT-I.

TRUPACT-I has two features which do not meet
regulations enacted after development work
started. These are incorporating a filtered
pressure equalization system (filtered vent)
and providing a single containment boundary.
DOE has now petitoned the Department of Trans-
portation for a rulemaking which would permit
both of these features to be used in TRUPACT-I.

684

- 7 -

DOE has also started development of a package
which eliminates these features (TRUPACT-II) .
This development is now in the design phase.

(g) Spent fuel shipments to a high-level waste
repository or monitored retrievaible storage
facility will be in NRC-certif ied containers.

685

QUESTION 2;

QUESTIONS FROM SENATOR HECHT

Many of DOE's depictions of the future generation
of casks which will service the repository show
that the spent fuel will be shielded with depleted
uranium. Are there any factories of which DOE is
aware that can manufacture depleted uranium
shielding since National Lead Industries converted
its plant?

(a) If yes, have the owners or operators of those
factories had any experience in manufacturing
shipping containers or casks for the transport
of nuclear wastes?

(b) If yes, of high level nuclear waste, spent
nuclear fuel or transuranic waste?

(c) If no such factories exist, has DOE nonethe-
less received proposals to build casks that
will use depleted uranium shielding?

(d) If yes, what, if any, experience have those
who submitted proposals had in manufacturing
shielding for high level nuclear waste or
spent fuel?

ANSWER:

Yes, the Albuquerque Operation Office, funded EA&T,
Santa Monica, CA, under Contract DE-AC04-84AL2 78 64
Mod AOOl to perform an international private
industry survey of depleted uranium (DU) vendors.
The capability of the vendors to cast and machine a
full-scale 0.2 Mo DU shield liner for the Defense
High Level Waste (DHLW) cask was assessed. (The
full-scale cask requires four cylinders with 1.63"
wall thickness, 30" length, and 30" outside
diameter. Each cylinder weighs about 3,000 lb;
therefore the total cylinder weight (four) for the •
cask is about 12,000 lb.) Four private industry

686

- 2 -
manufacturers were identified. A brief description
of their experience follows:

1. Eldorado, Port Hope, Ontario, produces castings
for radiation shielding and other applications.
They have capabilities for full-scale DHLW
shield liners.

2. Aerojet Heavy Metals Co., Jonesborough, TN, is
a major supplier of small DU products for the
U.S. Army. Their existing furnace capabilities
are insufficient for the full-scale DHLW cask.

3. Manufacturing Sciences Corp., Oak Ridge, TN,
produces thin DU plates. They state these
plates can be rolled into four cylinders of the
required thickness.

4. Nuclear Metals, Concord, MA, is a major sup-
plier of DU sinker bars for oil logging and DU
penetrators for the military. They state their
facility has the required capabilities.

Additionally, the Y12 Plant at Oak Ridge, TN,
has the ability to cast DU.

687

- 3 -

(a) Yes.

(b) Yes to high level nuclear waste and spent
nuclear fuel. (The DHLW cask is no longer
being considered for remote handled transuranic
waste. )

(c) CapaQjilities do exist (1, 3, 4, and Y12, as
mentioned above) . The RFP process is not com-
plete and, therefore, not public. Comment
cannot be made on proposals received.

(d) Eldorado has extensive experience in fabricat-
ing shielding for Ontario Hydro nuclear
reactors. The DU shielding for the IF-3 00 and
the closure for the Fort St. Vrain spent fuel
casks were supplied by Eldorado. Eldorado
fabricated the DHLW half-spale model shield
liner used for hypothetical accident testing —
x-radiography examination showed no changes in
the DU following five 3 0-foot (9-m) drop and
two puncture tests .

688

QUESTIONS FROM SENATOR HECHT

QUESTION 3: In the Transportation Appendix to the five Final
Environmental Assessments, DOE claims that the
inclusion of human error in the risk assessment
calculation made an insignificant difference in
their outcome. What is the basis for that
assertion?

(a) Did DOE assume that any single human error
would affect only a single shipment?

(b) If yes, how did DOE justify the noninclusion
of cask design or manufacturing errors which
might affect all shipments made with a single
cask or all shipments made with casks of a
particular design?

(c) Looking at the past history of casks, wouldn't
it be fair to say that there have been errors
made in the tests by which the casks are
judged?

(d) [If the answer is other than an unqualified
yes], isn't it true that engineers at Lawrence
Livermore Labs have described the original
computer model puncture test as "crude and
unreliable?"

(e) Looking at the past history of casks, wouldn't
it be fair to say that there have been errors
made in the design of casks?

(f) [If the answer is other than an unqualified
yes]

(1) What about DOE's MH-IA truck casks where
NRC initially refused certification be-
cause the casks were without sufficient
shielding against fire despite the fact
that DOE and the Army, the casks' previous
owner, had used the casks intermittently
for eight years? After DOE added shield-
ing and removed several valves, didn't NRC
continue to question the ability of the
casks to survive a puncture test? After
DOT ordered DOE to suspend usage of the
MH-IA, didn't DOE's own engineers deter-
mine that the casks would lose their
package seals around the cask lid in an
accident?

689

- 2 -

(2) What about the IF-300 rail casks where
later engineers uncovered a mathematical
error in the structural analysis of the
BWR fuel basket which, when corrected
indicated that the cask would sustain
damage in a 30' drop? Isn't it also true
that users of the IF-3 00 casks determined
after the casks had been in use for some
time that the pressure relief valves were
not resealing and appeared to have been
replaced in the early 1970 's with equally
defective valves?

(g) Isn't it true that the past practices intended
to ensure quality control in the manufacture
of casks have been inadequate?

(h) [If the answer to 3 is other than an unquali-
fied yes] ,

(1) What about discovery after testing of 67
ton rail cask that manufacturers had mis-
welded shielding and had failed to drill
holes into a cavity which would have
allowed melted lead shielding to expand
without breaching cask?

(2) What about discovery by purchaser of NAC-1
casks five years after they had been pro-
duced, that manufacturer had tried to
remedy lead shielding imperfections by
welding copper plates to the thin spots?

(i) Isn't it true that past practices intended to
ensure continued maintenance of casks have
proved inadequate?

(j) [If the answer to i is other than an unquali-
fied yes], what about the discovery by the
purchaser of 2 NAC-1 casks of bowing in the
baskets which hold the spent fuel rods in
place after the casks had been used for ap-
proximately 103 shipments?

ANSWER: The assertion was based on information provided in

a 1980 NRC Study, Transportation of Radionuclides

690

- 3 -
in Urban Environs; Draft Environmental Assessment,
NUREG/CR-0743, commonly referred to as the "Urban
Study" .

(a) The response in the EAs (DOE/RW-0073 , Vol. 3,
in Section C. 2. 4. 1.2. 3) does not specify the
assumptions used in making the calculation of
potential human error risk, however, the Urban
Study indicates that a single hviman error
affects only one shipment.

(b) Any analysis of the potential risks from human
errors will currently be based on extremely
limited data. The record of transportation of
spent fuel has been excellent, thus producing
little data for realistic analysis. The
assumptions made in deriving potential release
fractions, etc. used in the Urban Study were
based on a total of 16 incidents out of a
total of 3939 shipments.

"Deviations in accepted QA practices include
both failure to adhere to normal procedure and
lack of quality control" (The Urban Study, p.
71). Of the 16 incidents, only one resulted
in any release to the environment and this
factor was included in the derivation of frac-
tional occurrences and release fractions for

691

- 4 -

the analysis. The analysis did not extend to
design or manufacturing errors, since it was
assumed that appropriate care was taken in the
processes of design and manufacturing. The
NRC certification process is intended to de-
tect design errors and to prevent major design
and construction flaws from becoming a signi-
ficant contributor to the occurrence of many
accidents involving a single cask design.

design, analysis, and testing are continually
being enhanced, and when assessing whether
errors are made, one must look at both the
technology and regulations at the time. Tests
provide evidence of meeting regulatory
criteria and offer designers an opportunity to
verify analysis. The fact that regulations
change reflects an enhanced understanding of
the system's performance of radioactive
materials packaging; however, even with some
uncertainty (as opposed to errors) in previous
design and licensing of Type B packagings,
there has never been a release of radio-
activity to the environment following an acci-
dent.

692

- 5 -

(d) We are not aware of how engineers at Lawrence
Livermore National Laboratory have described
the original computer model puncture test.

(e) See 17c above.

(fl) The MH-IA cask was designed, built, and

licensed in the mid-1960 's for the Army's MH-
lA reactor fuel. The cask was granted Special
Permit No. 6639 in 1972 by the DOT and a
Certificate of Compliance No. 6639 by the
Atomic Energy Commission. In January 1979, a
supplement to the Certificate of Compliance
was requested for use of MH-IA for contents
other than the original irradiated fuel ele-
ments. As is customary, NRC reviewed the
eunended Safety Analysis Report for Packaging
(SARP) to ensure design adequacy by current
technology at the time. This review identi-
fied new issues with the MH-IA design and
resulted in a new SARP from which further
issues were identified that may require
testing to resolve.

The DOE has reviewed all questions raised by
NRC. Discussions with the NRC over the past
year have identified the ways to resolve these

693

- 6 -

questions. It is noteworthy that seal damage
would not result in loss of containment. The
spent fuel is solid form and could not be
released or dispersed in a severe accident.

(f2) The situation indicated is basically correct.

(g) Past practices to assure quality in casks that
have been built have had both successes and
failures. Errors are never fully controlled
by Quality Assurance (QA) programs, but the
number and severity of problems are reduced
when a good program is in place. The required
NRC programs have minimized quality problems
but did not and will not eliminate all
defects. However, defects are expected to
become even smaller in number and severity as
a result of new initiatives by the NRC in
prescribing required QA programs for cask
design, construction, and maintenance.

(hi) The event alluded to here occurred in a fire
test that had extended to three times the
regulatory duration and resulted in a crack as
described in the question. However, the crack

694

- 7 -

penetrated the outer shell of the cask, and
did not in any way breach containment or
shielding of the cask.

(h2) To our knowledge the situation described did
not occur. Copper fins were welded to the
outer shell of the cask between the inner and
outer shell of the cask to assist in heat
transfer, not to compensate for insufficient
shielding. The welds were not done by
approved methods and resulted in some cracking
of the outer shell of the cask. Again, this
was a QA breach but not of high potential
consequence. The problem is now better under-
stood and would be controlled by current
Quality Assurance (QA) practice and requirements,

(i) Past QA practice did not require the same
degree of recordkeeping and care as is
currently provided under revised QA
procedures.

(j) To our knowledge the bowing referred to was

discovered in a QA inspection and reported to
the NRC which acted to control the problem.

695

QUESTIONS FROM SENATOR ADAMS

QUESTION 1: Please clarify your position on whether or not

Congress must affirmatively act to disapprove your
proposed amendment to the Mission Plan if it is
inconsistent with the Nuclear Waste Policy Act?

ANSWER:

The schedules set forth in the draft amendments to
the Mission Plan were based solely upon
programmatic judgments. They were not intended to
set forth any particular legal position, but
rather to describe the Department's considered and
informed judgments, based on its actual experience
in administering these programs, of the course and
timing that the first and second repository
programs should take given current circumstances.
The Department recognizes that carrying out these
programs in the way described in the proposed
amendments to the Mission Plan will require
Congressional approval.

696

QUESTIONS FROM SENATOR ADAMS

QUESTION 2 : Please provide a schedule of activities you will

conduct to comply with the requirements of Sec. 112
and 114 of the Nuclear Waste Policy Act to site a
second repository/ including the date when this
action will be initiated or by what act or inaction
of Congress it will be initiated.

ANSWER:

As indicated in the draft Mission Plan Amendment,
the specific requirement in the Nuclear Waste
Policy Act regarding availability of the second
repository is stated in terms of the maximum amount
of fuel that can be emplaced in the first
repository until a second repository is in
operation. The Act sets this figure at 7 0,000 MTU.
With the currently designed annual receipt
capability for the first repository, the 70,000 MTU
limit will not be reached until after the year 2020.
Site-specific studies for the second repository
need not start until the middle to late 1990 's in
order to have the second repository available after
2020. The Department will continue to monitor all
pertinent factors - projections of spent-fuel
discharge rates, the rate at which the first
repository is filled, and the time needed to
develop the second repository - to determine the
schedule for the second repository.

When site-specific studies are proposed to be
initiated, the work to be done will be described in
the President's budget submitted to Congress for

697

- 2 -
ANSWER 2: (Cont'd)

approval. Action by Congress on the budget request
for site-specific studies will be required.

698

QUESTIONS FROM SENATOR ADAMS

QUESTION 3. Please confirm whether or not the September 5, 1986
legal memorandum from J. Michael Farrell to Benard
C. Rusche concerning the relationship between the
Mission Plan and the requirements of the Nuclear
Waste Policy Act is the dispositive legal position
of the Department on this issue. If not, please
provide any additional legal position or memoranda
concerning the relationship of the Mission Plan and
amendments to the Mission Plan and the Nuclear
Waste Policy Act.

ANSWER:

The memorandum of September 5, 1986 from the
General Counsel to the Director of the Office of
Civilian Radioactive Waste Management is the
position of the Department regarding the legal
relationship between an amendment to the Mission
Plan and the timing of the recommendations required
to be made to the President and to the Congress
under sections 112 and 114 of the Nuclear Waste
Policy Act of 1982.

699

Appendix II

Responses to Additional Committee
Questions From the February 4, 1987 Hearing

RICHARD H. BRYAN
Governor

STATE OIVNEVACfA^''--

I GRANT SAWYER
. , - , Chairman

Commissioners:

Frank Calne
James Cashman HI
|Tha]|a Donderb
Ron Luile
Mlchon Mackedon
"* Anne Pelrcc

COMMISSION ON NUCLEAR PROJECTS ^T(;r;^r,'

Capitol Complex

Carson City, Nevada 89710

(702) 885-3744

Robert R Loux
Secretary

March 9, 1987

The Konorable J. Bennett Johnston
Chairman, Committee on Energy

and Natural Resources
U.S. Senate
SH-136 Hart Senate Office

Building
Washington, D.C. 20510

Dear Chairman Johnston:

Enclosed please find responses to questions which you and
Senator McClure have requested that I answer. I regret any delay
in responding, however, the questions which you have posed have
required some rather in-depth response, as you will note. I
appreciate the opportunity to put Nevada's case before you, and I
am sure you will find our responses comprehensive.

Should you have any questions, please do not hesitate to
contact me.

GS/gjb
Enclosure

Sincerely,

:^/<:^:^

K^Grant Sawyer, Chairman

Nevada Commission on Nuclear
Projects

700

RESPONSES TO QUESTIONS POSED BY SENATOR BENNETT JOHNSTON

STATE-DOE COOPERATION

1. Do you believe that your State has made a good faith effort
to cooperate with the Department of Energy? Describe the
contacts with DOE that you initiated. What were the
results?

Response ; In discussing the issue of interaction between
the Department of Energy (DOE) and affected states/tribes, it is
extremely important to consider the divergent perspectives from
which interaction (in terms of consultation and cooperation) is
approached. A fundamental problem (perhaps the fundamental
difficulty) in state/tribe - DOE relationships lies in how the
parties view the provisions in the Nuclear Waste Policy Act
(NWPA) which require DOE to consult and cooperate with affected
states and tribes.

From the onset, DOE has interpreted consultation and
cooperation in a very limited way. DOE provides information,
holds meetings, solicits State comments on draft materials at the
same time it solicits public comments and generally goes through
the motions required in traditional bureaucratic interactions.
However, no attempt is made to provide states/tribes with early,
substantive, and meaningful opportunities to shape decisions and
influence program policy and implementation. There is a great
deal of form but very little substance in DOE's interpretation of
its duty to consult and cooperate.

States and tribes, on the other hand, view "consultation and
cooperation" as a requirement for a more collaborative approach
to program decision-making in areas where states/tribes have

-1-

701

important interests. Nevada and other states have looked to DOE
to provide more than token opportunities to comment on draft
documents or review draft policies, when, in fact, decisions have
already been substantially made. DOE is already so committed to
a course of action that State comments/recommendations are
superfluous. States have attempted to encourage the acceptance
of a definition of consultation and cooperation which
acknowledges the unique oversight role provided for potential
repository states by the NWPA. Such a definition requires that
states be involved early and in a meaningful manner in key
decisions and activities so as to enable those states to actually
have the opportunity to influence program policy and direction.

It should be noted that DOE intransigence in cooperating
meaningfully with Nevada appears to emanate primarily from
DOE/OCRWM headquarters. The Department's Nevada Project Office
has been much more willing to cooperate with the state in a more
substantive manner.

Officials of the State of Nevada have made a good faith
effort to cooperate with the Department of Energy. On a number
of occasions, meetings between Nevada officials and DOE Nevada
Operations personnel have produced agreement on how we will
interact. One such series of meetings produced a "Protocol"
which specified how Nevada's technical contractors would gain
access to the Yucca Mountain site to do independent testing. The
"Protocol" was even signed by the Nevada DOE project management.
Later DOE headquarters disavowed the agreement and denied funding
for Nevada's independent testing.

Generally speaking, contacts with DOE, which are initiated
by Nevada, seek information or propose technical study by U.S.

-2-

77-10A 0-87-23

702

DOE or State contract personnel. Also generally, DOE's response
is invariably very slow, overly analytic, bureaucratic, negative
and frustrating to State efforts to participate.

An example of contacts initiated by the State is Nevada's
repeated request in 1985-1986 to be made aware of the method by
which DOE would decide which five of nine sites would be
nominated and which three of five states would be chosen for
characterization. This request was made orally and in writing to
various individuals including William Purcell, OCRWM Director of
the Office of Geologic Repositories, and OCRWM Director Ben
Rusche. DOE refused to disclose the method until after site
selection decisions were announced.

Another example of state-initiated contacts involved the
Nevada Commission on Nuclear Projects' invitation to Mr. Ben
Rusche to address the Commission on May 16, 19 86. Mr. Rusche
arrived in Las Vegas at 11:00 a.m., addressed the Commission and
departed the meeting by 12:00 noon. He took no time to listen to
citizen concerns which were scheduled to be heard later that
afternoon. Chairman Sawyer asked Mr. Rusche specifically at that
meeting what the decision methodology would be for site
recommendation and whether Nevadans were accurate in assessing
that Yucca Mountain had already been chosen. Mr. Rusche refused
to divulge the decision methodology and stated that no decision
had as of then been made selecting Yucca Mountain. In
retrospect, it now appears that statement was false. The final
action announcing the formal decision was made May 28, 1986, only
twelve days later. Mr. Rusche 's subterfuge prohibited any state
participation in that decision. Finally, please recall that the
requirement of the NWPA is that DOE cooperate with the state, not

-3-

703

vice versa. See Section 117(b). In fact the requirement is that
DOE "consult and cooperate" with the state. The clear
connotation of this language is that DOE must ask the state's
opinion on various programmatic matters, and give that opinion
serious consideration. To date, this has not happened.

Nevada has commented in nearly every instance in which DOE
has provided the opportunity. In the case of Nevada's comments
on DOE'S Draft Environmental Assessment, DOE essentially ignored
over 800 pages of Nevada's suggestions. In a prior major
interaction experience, the development of siting guidelines, DOE
refused to consider the objective approach Nevada recommended,
and which we believe the Act requires.
2. Do you believe that the DOE has made a good faith effort to

cooperate with your State? Describe the contacts with you

that were initiated by DOE. In these cases, what were the

results?

Response ; DOE's effort to cooperate with Nevada cannot be
regarded as having been made in "good faith". Rather it has been
perfunctory. DOE's ordinary method is to develop a position or
procedure in advance, then inform the State of its decision. DOE
has held many meetings where it provides states with information
about policies and decisions, and then records these dates in a
cumulative list purporting to indicate DOE's level of
cooperation. DOE has never brought real agency decision makers
to Carson City and to sit down with Nevada personnel and discuss,
in advance, the philosophy and approach of any particular
decision .

An example of DOE's attempts to cooperate with states on
issues of considerable importance to those states involves DOE's

704

The concept appeared to be a promising one. However, from
the time states/tribes began attending meetings, the format and
content of those meetings was changed. Instead of being forums
where states/tribes and DOE worked cooperatively to arrive at
mutually acceptable approaches and decisions, the meetings have
become sessions where DOE makes presentations and where state's
concerns are taken down as "action items" for DOE review at
future times. No DOE decision makers are present so no real work
gets accomplished. Rather than meaningful joint working
sessions, the coordination group meetings have become,
essentially, DOE show-and-tell forums.

Nevada has repeatedly sought participation in DOE
socioeconomic and environmental monitoring and mitigation plans.
State and local representatives met on several occasions with
DDE/Nevada staff and contractors and provided DOE with issues and

-5-

705

factors to be considered in the plans. When these contacts first
began, DOE/Nevada promised that State and local concerns would be
given full consideration and that the monitoring and mitigation
plans would be developed cooperatively with state and local
representatives. DOE Headquarters' directives during the summer
and fall of 1986, however, prohibited the DOE/Nevada office from
fulfilling that commitment and even prohibited DOE staff and
contractors in Nevada from meeting v/ith State or local officials
until after November of 1986. As a result of this DOE policy of
total non-cooperation, not one of the State/local issues was
addressed in the draft monitoring and mitigation plans released
in late November 1986.

Nevada believes that the Nuclear Waste Policy Act clearly
requires DOE to consult and cooperate with the State, and that
the borden of effectuating such consultation and cooperation
rests with the Department. In this regard, DOE must ask the
State's opinion on various programmatic matters and then give
such opinion serious consideration. This has not happened in the
program to date.

SITE-SPECIFIC TECHNICAL ISSUES

1. What do you consider the most important technical,
scientific or engineering reasons why your site is
inappropriate for a repository? Do you believe that DOE is
ignoring scientific information about these matters? What
information?

Response ; Concerns about the technical adequacy of the
proposed Yucca Mountain repository site in southern Nevada have
been around for a number of years. Questions from the scientific
community have centered on the high potential for technical flaws

-6-

706

at the site given the active nature of the geologic environment
in Nevada.

The National Academy of Sciences (NAS) first expressed
concerns about technical factors in 1979 in correspondence to
the Department of Energy (letter from E.F. Gloyna to S. Meyers,
dated April 23, 1979). In early 1979, DOE came to the NAS -
Committee on Radioactive Waste Management and requested the
Committee's preliminary views on the potential of tuff,
particularly in southern Nevada, as a repository host rock. In
the April 23rd letter, the NAS, while admitting the long and deep
groundwater flow paths, low-water velocities, low population, and
extensive federal land ownership were attractive attributes,
identified potential difficulties associated with tuff as a
medium for radioactive waste isolation. These potential
difficulties, considered fundamental by the NAS, focused on the
seismic and volcanic stability of candidate areas of tuff, the
significant lateral variations in thickness and character of
tuff, the fact that tuff terrains are typically broken by faults
into blocks of varying size, the stability of tuff in the
presence of hot electrolyte solutions, and the possible presence
of natural resources. In concluding the letter, the NAS
suggested that "explorations and investigations be conducted in a
logical sequence so as to assure that certain fundamental
questions are addressed first before major resources are
committed . " (Emphasis supplied).

In 1983 after the Nuclear Waste Policy Act was passed
and the Nuclear Waste Project Office was established by the
Governor to provide Nevada oversight of the program, the State
set out to define and understand what might be the technical

-7-

707

issues concerning a repository sited in tuff in southern Nevada.
This office reviewed the NRC regulations on siting high-level
radioactive waste facilities (10 CFR Part 60) and the EPA
standards for management of high-level radioactive waste (40 CFR
Part 191) and consulted with State and university scientists
knowledgeable of geologic, hydrologic, and engineering
characteristics of tuff and the southern Nevada area. Based upon
that review and analysis, the State established two lists of
issues critical to health, safety and the environment. One list
addressed site suitability issues and the other addressed site
performance issues. Site suitability issues include:

1. Characterization of moisture movement through the
unsaturated zone.

2. The relationship of Yucca Mountain groundwater regime to the
regional acquifer system.

3. The effect of future climatic variations and resulting
changes in the hydrogeologic regime on the integrity of the
site .

4. The effects of future faulting or other tectonic events on
the integrity of the site.

5. The effects of future volcanism on the integrity of the
site.

6. Human interference of the site due to perceived presence of
extractable natural resources.

Site performance issues include:

1. Groundwater travel time to the accessible environment.

2. The effect of host rock geochemistry on the retardation of
radionuclide transport.

3. The effect of fuel cladding, waste canister materials, and

-8-

708

backfill in preventing or restricting radionuclide
transport.

4. The uncertainty in projecting performance assessments to the
1,000 and 10,000 year time periods.

5. Maintenance of waste canister retrievability option.

6. The design and reliability of a long-terra repository
monitoring network.

7. The maximum expected radionuclide release rate from the
engineered system.

In December 1984, the DOE issued a Draft Environmental
Assessment for the proposed Yucca Mountain site. Comments of the
State, issued in March 1985, cited major deficiencies in the
technical assessment of the site. Our analysis concluded that
technical evidence was available which suggested that four
conditions which could disqualify the site might be present at
Yucca Mountain. These four disqualifying conditions were:
(1) Tectonics

The DOE Siting Guidelines for nuclear waste repositories
indicate that a site should be disqualified if fault
movement and other ground motion would result in loss of
wasre isolation. The Draft EA acknowledged that Yucca
Mountain is in a tectonically-active area and the faults on
Yucca Mountain may be "potentially active," but indicated
these present no problems for siting a repository at Yucca
Mountain. However, the State found that a reasonable
interpretation of the available information suggested that a
large earthquake with accompanying surface faulting could
probably occur during the lifetime of the facility, with the
possibility of loss of repository integrity.

-9-

709

(2) Geohydrology

The Siting Guidelines indicate that a site should be
disqualified if the groundwater travel time from the
repository to the assessable environment is less than 1,000
years. The Draft EA admitted that necessary hydrologic
parameters for the unsaturated zone were poorly known and
much uncertainty existed in the model calculations, but
results indicated groundwater travel times ranging from
20,000 to 50,000 years for the site. However, State
calculations, using conservative approximations to bound
numerical uncertainty, found that groundwater travel time
could range from 900 to 34,000 years. The minimum number
for groundwater travel time would not meet the geohydrologic
requirement .

(3) Off-site Installations

The Siting Guidelines indicate that a site should be
disqualified if atomic energy defense activities conflict
irreconcilably with repository activities. The Draft EA
stated that there would be no conflict because of
engineering design which would accommodate weapons testing
effects and coordination of repository schedules with
testing schedules would minimize safety concerns. The State
found, however, that a repository at Yucca Mountain might
conflict with future weapons testing and the established
mission of the Nevada Test Site. The State acknowledged
that the long-term future of atomic testing was uncertain,
but if testing would continue in the future, areas in close
proximity to Yucca Mountain would likely be locations for
such testing. The State believed this guideline could not

-10-

710

be satisfied without documentation from the Department of
Defense that future atomic testing would not conflict with a
waste repository at Yucca Mountain.
(4) Water Quantity and Quality

The Siting Guidelines indicate that a site should be
disqualified if repository activities would degrade water
quality or reduce water quantities for human consumption or
crop irrigation. The Draft EA found that repository water
use would not lower the regional groundwater table or reduce
water quality. The State found there was insufficient
information provided in the Draft EA to judge the impacts of
repository water use on water quantity or quality. Amargosa
Valley, down-gradient from Yucca Mountain, could be affected
in the long term by degradation of the groundwater by
repository activity.

State reviewers identified other areas of technical
concern with the Draft EA mineral resource potential, risk of
volcanic eruption, possible changes in future climatic
conditions, instability of underground repository openings, and
flash flood protection.

The Nuclear Regulatory Commission has also expressed
concern with the technical suitability of the Yucca Mountain
site. In December 22, 1986 letter report to Stephen Kale, Office
of Geologic Repositories-Department of Energy, the NRC staff
concluded that the Environmental Assessment for Yucca Mountain
was overly favorable or optimistic in its technical assessment of
the site. While the NRC acknowledged that all information on the
site is not yet available, the environment assessment did not
acknowledge alternative interpretations which could be reasonably

-11-

711

supported by existing data; did not identify the uncertainties
associated with the limited existing data base, and it did not
consider the uncertainties or alternative interpretations in its
evaluations and conclusions.

The same letter report contains nine major comments
authored by NRC staff. Three of the comments address faulting at
or near Yucca Mountain. NRC staff contends that literature
evidence suggests that faults in the vicinity of Yucca Mountain
should be considered to be potentially active. The high state of
stress measured on Yucca Mountain suggests that north-south
trending faults could be reactivated by nuclear weapons tests.
Further/ the omission of a comprehensive discussion of
northeast-trending strike-slip faults reflects an inadequate
recognition of the current uncertainties regarding the nature and
rates of fault movement. Also the EA failed to acknowledge U.S.
Geological Survey literature which suggests that detachment
faulting may be a much more important element in the tectonic
setting of Yucca Mountain than previously believed.

Another NRC comment raised concern that the potential
for hydrothermal activity, which is often associated with
volcanic activity, was not addressed in the EA. Staff contends
there may be potential for hydrothermal activity and hence the
potential for such activity to create new flow paths and
adversely affect the waste package.

Staff also raised concern that an analysis of
historical mining and prospecting in the area of Yucca Mountain
was not sufficient to assess economic potential inasmuch as
natural resource exploration has been banned within the Nevada
Test Site for over 30 years. The EA did not recognize the direct

-12-

712

knowledge currently available about natural resources at Yucca
Mountain and overlooked various indirect lines of evidence which
suggests the presence of significant economic natural resource
potential .

Concern was also expressed by NRC that, because the
ability of the geochemical system to effectively retard
radionuclide migration was highly speculative, it is not
unreasonable to assume significant increases in radionuclide
transport to the accessible environment due to change in climate
or geohydrologic conditions.

NRC staff also questioned DOE's confidence in the
calculation of groundwater travel time. They stated that the
"many assumptions, hypotheses, and approaches used in the
analysis did not incorporate uncertainties associated with
available data." The specific problems relative to the
calculation of groundwater travel time are 1) uncertainties
affecting the groundwater travel time calculations; 2)
uncertainties connected with parameters input to models as random
variables, and 3) uncertainty with regard to vertical movement of
groundwater. Staff cautioned that the use of 0.5 mm/yr . for an
upper bound for flux for groundwater travel time is not
substantiated and that higher values should be considered. Their
review further suggests that under certain conditions, fractures
flow could occur at flux values less than 0.5 mm/yr., thereby
producing groundwater travel times of substantially less than
1,000-year travel time required by EPA.

NRC likewise questioned the two mechanisms — matrix
diffusion and sorption — which would diminish radionuclide
releases to the accessible environment and suggest that colloids

-13-

713

present in the groundwater may lessen the effectiveness of matrix
diffusion for retarding radionuclide transport and may in fact
enhance migration. Research described in scientific literature
suggests that zeolites and clays are not effective sorbers of
Plutonium or americium, major elements in radioactive waste.

The NRC's final major concern is that the 3,000-year
waste package container life proposed in the EA is neither
realistic nor conservative. Research conducted by NRC
contractors for a range of simulated Yucca Mountain environments
confirms the overestimation of the waste package lifetime. In
NRC's view, the EA should fully acknowledge the uncertainties in
current waste package analyses and the limited data base
available .

In summary, the State of Nevada is in agreement with
both the National Academy of Sciences and the Nuclear Regulatory
Commission staff relative to concern with the technical adequacy
of the Yucca Mountain. Technical flaws appear to be present at
the site. These include the occurrence of active earthquake
faults at the site, the potential for recurrent volcanic activity
within the engineered life of the repository; the potential for
significant economic natural resources beneath the mountain;
possible adverse affects on repository performance from nearby
nuclear weapons tests; and uncertainty about the site's ability
to meet the 1.000-year groundwater travel time mandated by the
EPA. In the past, the State has attempted to assess the validity
of these suspected technical flaws by proposing to perform
independent technical studies. Even after the D.S. Ninth Circuit
Court of Appeals concluded that the State was entitled to perform
such studies as part of its lawful oversight role, DOE has

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714

continued to frustrate and delay State grant funding for those
studies. The fact that DOE has yet to adequately address crucial
and perhaps even disqualifying technical questions may be seen as
further evidence of the Department's reluctance to seek answers
which may not be to its liking.
ADEQUACY OF FIVE STATES

1. DOE claims that all five of the sites nominated for the
first repository are quite adequate to be considered for
characterization and that the projected performance of any
of these sites will far exceed applicable EPA standards for
releases of radioactivity. Isn't this true?
Response ; Nevada has no confidence in DOE's claim that all
five sites nominated for the first repository are adequate based
on "projected performance" of EPA off-site release standards.
First, EPA staff has itself admitted that the proposed EPA
standard was tested against what was then known about the Hanford
site, that the proposed standard was discovered to disqualify
Hanford, and that the standard was thereafter altered (made more
lenient) so as to permit Hanford 's further consideration.
Further, the definition of the interior limits of the
geographical area to which the standard would be applied were
modified to permit DOE to define the "disturbed", or pollutable,
area in an amoeba -like or gerrymandered way, permitting extension
of interior limits in favor of easier DOE compliance.
Additionally, DOE's conclusion with respect to respective r>ites'
performance in relation to the EPA standards was made through the
application of DOE's site selection guidelines, which are
subjective. A different analyst could easily reach a different
conclusion using the same data and the same guidelines.

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715

Specifically with respect to Yucca Mountain, NRC staff
has criticized DOE's disregard of active faulting, hydro-thermal
activity, the presence of ore deposits at the site, and DOE's
over reliance on geochemical retardation, groundwater travel time
modeling and an engineered barrier system performance in
analyzing the site. DOE's conclusion with regard to the EPA
release standard is not well based and is self serving.
2. If DOE'S contention is true, what do you think its
implications are for site selection?

Response ; If DOE's contention is true, that sites chosen
essentially at random for their technical isolation properties
all meet adequately stringent environmental standards, then the
implication for the program is that there are undoubtedly many
more such sites in the nation sites, which could be explored in
hopes of finding a best site.
"FIXING THE PROBLEM"

1. Suppose you could make a list of the things you'd want DOE
to do differently within the framework of the Act in
considering the site in your State. Assume that if DOE
agrees to make the changes indicated on the list, then you
will cooperate in allowing site characterization to proceed.
Could such a list be drawn? Or do you just want your site
dropped from consideration? If such a list could be drawn,
what would be on it?

Response ; Nevada believes that the solution to the current
problems facing the nuclear waste disposal program lies, simply,
in a return to the letter and intent of the Nuclear Waste Policy
Act. DOE must be forced to implement the Act as Congress
originally intended. While specific deadlines in the Act may no

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716

longer be operative (because of DOE's ineptitude in implementing
the law to date), the overall framework, philosophy and approach
to siting, constructing and operating a waste disposal system
remains valid. However, if a solution to the nuclear waste
problem is to be found and a repository sited, there must be a
commitment by DOE and Congress to a truly objective siting
process wherein technical and scientific factors are allowed to
dictate the choice of sites.

A list of things Nevada would want DOE to do differently,
though not exhaustive, would include the following:

1. Define in advance the technical parameters of a fully
engineered high-level radioactive waste geologic repository
capable of isolating waste until its radiologic character is
benign (i.e. no longer toxic); this is not now explicitly
required by NRC and EPA.

2. From that definition, determine the technical
parameters of natural hydrologic, geologic, tectonic,
geochemical , and seismic systems which would act as a substitute
for all of the engineered system. Reduce the technical
parameters to quantitative terms and promulgate them as new site
selection guidelines. (Retain the current economic, social and
political parameters required by Section 112(a) of the NWPA and
discard the rest of the current guidelines.) Incorporate within
these new guidelines the premise that no site or location is
considered suitable until there is evidence which proves that to
be the case .

3. Screen the nation's geology for sites likely to possess
quantitatively adequate technical parameters without first

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717

considering the socio-political issues of ease of siting or land
ownership.

4. Define the safety and health risks of transportation of
spent fuel over specific routes.

5. Balance the known information about the technical
parameters of each site against the safety and health risks of
utilizing those sites and the transportation of spent fuel
thereto.

6. Select for characterization all those sites which
present promising prospects of significant radionuclide isolation
potential which, on balance, present the least health and safety
risks prior to repository closure. Commit to selecting only the
three best sites from among all available for characterization.
Commence characterization of at least three sites so as to comply
with the NWPA modified NEPA requirement.

7. Throughout site screening and analysis, (characteriza-
tion) commencing with systems design, incorporate state and local
knowledge of the respective geology. Discover how best to
analyze it. Design the research system so that it asks open
ended questions and is really inquisitive in nature. Attempt to
resolve technical questions about which state and local technical
professionals are concerned using the investigative approach or
methodology which such professionals believe will resolve their
questions. Manage the site screening and characterizations
program as close to the site as possible, but integrate this
management by means of a single system engineering contractor.
Grant on site management personnel the authority to commit and
make decisions regarding the program when state or local
technical professionals need specific commitments/decisions.

-18-

. 718

8. Don't hurry against an uncompromising schedule which
thereafter becomes compromised at the whim of the program's
administrator .

9. Listen to and heed comments and suggestions offered
from others.

10. Make decisions in the open.

11. Don't modify results of requested advice to serve
preconceived programmatic objectives.

NOT IN MY BACKYARD

1. Every state being considered for a repository knows several
reasons why the site should not have been chosen for
characterization. What would be your response to
allegations that your objections are being raised only to
avoid the location of a repository in your state?
If the State of Nevada were to base its case for elimination
of the state as a potential repository location on a "not in my
backyard" argument, it would probably have a fairly strong case.
First, Nevada already bears a major share of the responsibility
for the nation's nuclear arsenal in its "backyard". Moreover,
83% of Nevada land is owned by the United States government.
Other areas of the country have chosen nuclear power, with its
attendant waste problem, as an energy alternative. Nevadans have
not. Even those states with nuclear reactors in their front
yards argue that nuclear waste should not be buried in their
backyard. Yet those states reap the benefits of the nuclear
energy .

While Nevada representatives are quick to point out the fact
that the State has already done much more than its share to
support the nation's nuclear programs, that argument is really

-19-

719

only a sidebar to the main issue of concern to Nevada — the
issue of the technical suitability of the Yucca Mountain site.
The fact that Nevada has contributed heavily to the country's
atomic activities would, obviously, be a factor in the event that
Yucca Mountain and one or more sites in other states (without
Nevada history of service in this area) were found to be equally
the best and most suitable available. At that point, Nevadans
would expect Congress to recognize the fairness in spreading the
country's nuclear burden more equitably. However, the Yucca
Mountain site appears to be seriously flawed and is almost
certainly not among the best sites that can be found from a
technical perspective.
GARDNER PROPOSAL

1. What is your opinion of Governor Gardner's proposal for a
non-binding conflict resolution process to develop a
consensus on how to proceed with the program? Would this
solve the problems with the program as you see them? Why or
why not?

Response ; Governor Gardner's proposal is not likely to be
implemented as it calls upon parties to negotiate when it is not
currently in their self interest to do so. DOE has declined.
Second round states perceive themselves better protected by
current political power than through negotiation. Governor
Gardner's proposal is based on an assumption that the Department
of Energy will enter into good faith negotiations with other
parties involved in the nuclear waste program. It also assumes
that DOE will be willing and able to approach the high-level
waste program from a standpoint that eschew political and other

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720

non-technical influences that have driven DOE ' s management of the
waste program to date.

DOE has shown little inclination to change its ways. It
continues to deny states the funds required to perform adequate
oversight and independent confirmatory studies. It persists in
limiting state involvement in key decisions and program
activities. Nevada has offered to negotiate the issues which
underlie the State's legal actions against the Department and DOE
has refused. The current DOE-implemented waste program is so
flawed that a "conflict resolution" approach is not likely to
result in a successful outcome. What is needed is a commitment
from the Department to retract the siting decisions that have
been made to date and begin the NWPA siting process over again
using new, objective siting guidelines and with a stated purpose
of finding the best and safest site for a repository.
NEED TO AMEND THE ACT
1. Are you asking Congress to amend the Nuclear Waste Policy

Act to address the issues you raised in your testimony? If

so. could you describe your proposed amendments to the Act?

If not, how do you propose that the Department move forward

with the program?

Response ; Nevada does not ask for amendment to the NWPA at
this time, but rather for Congressional enforcement of the Act.
We propose, as a starting point, that DOE be required to
promulgate new, adequate and objective siting guidelines and move
forward by complying with the law in both letter and spirit.
ECONOMIC BENEFITS
1. What economic (or other) benefits are there for our State or

tribe if your site is chosen for the repository?

-21-

721

Response ; It is not possible to look at the economic
benefits of a repository apart from the potential economic,
social, environmental and other costs that may be associated with
such a facility. Only after a thorough examination of the
cost-benefit ratio has been completed, can a realistic picture of
possible repository effects (both pluses and minuses) be
obtained .

The Department of Energy has consistently sought to
exaggerate the potential economic benefits of a repository in
Nevada while ignoring or downplaying the possible negative
aspects. The only attempt by DOE to address the economic aspects
of repository siting in Nevada is in the Environmental Assessment
(EA) for the Yucca Mountain site. That document was seriously
deficient in its analysis of economic costs/benefits. State
reviewers concluded that the EA presented a "best-case" scenario
that minimized potential impacts to the social and fiscal systems
of southern Nevada. It ignored risk, assumed unchanging
demographics, and proceeded from the premise that all markets
function with perfect information. It used a model of
questionable validity and ignored relevant differences between
two of counties bordering the site (and ignored the rest of the
state entirely) .

The methodologies employed to estimate such crucial
elements of the socioeconomic-impact-analysis formula as direct
and indirect labor-force numbers, settlement patterns of
immigrating workers, and even the number or percentage of
immigrants expected were either lacking altogether or seriously
deficient.

-22-

722

Nowhere was the calculation by which DOE arrived at
direct repository employment explained. Such calculation is
crucial because it drives a number of other key variables in the
socioeconomic analysis, including total employment, which, in
turn, provides the basis for projecting impacts on local
communities (and on the state) .

The fact that direct employment at the Yucca Mountain
site was initially estimated to be almost 200 percent greater
than for any of the other nine sites would seem to indicate that
repository employment figures were greatly overstated. The fact
that there was no explanation in the EA as to how direct-worker
estimates were arrived at may be seen to indicate that the
numbers have been intentionally inflated. Such speculation is
further fueled by the limited information that is available in
reference material relative to labor-force calculations. Those
initial estimates contained "contingency" factors of up to 40
percent and inflated employment numbers by another 15 to 18
percent because of the manner by which fringe benefits were
incorporated into the equation.

Indirect employment figures were likewise suspect
because of the use of a multiplier that was between 2h and 5
times larger than multipliers employed for any other site. State
agency reviewers consistently questioned the applicability of
such a large multiplier even for the more cosmopolitan Clark
County, which has a more diverse and sophisticated overall labor
force than rural Nye County.

DOE consistently focuses on employment and income gains
that will occur as the site is developed and just as consistently
ignores the declines in employment and the negative impacts on

-23-

723

local revenues and markets that could occur as the project moves
from construction to operations and from operations to closure.

Another major area where DOE's economic analysis is
seriously deficient involves the analysis of potential
repository-related impacts on the primary sector of Nevada's
economy — tourism. The tourism analyses contained in the EA and
in supporting and subsequent materials are superficial and
largely irrelevant. DOE attempted to infer that because impacts
on tourism as a result of major hotel fires and the Three Mile
Island incident were short-lived and minimal, a repository (and
related shipments of nuclear waste passing through Las Vegas over
30 years) will have little effect on the State's tourism
industry. Not only is such treatment of this crucial subject
inadequate and misleading, but it also fails to differentiate
between short-term, crisis-related events and the implications of
a project that will be ongoing for 10,000 years. Likewise, any
attempt to relate tourism at places like Harrisburg,
Pennsylvania, to tourism at Las Vegas is superfluous. As with so
much of DOE's work, there is an obvious attempt to treat
conjecture and opinion as fact — and then to infer a lack of
negative consequences as a result of such "facts."

Because DOE's conclusions relative to economic
benefits/costs associated with a repository are suspect and
unreliable, the State of Nevada has undertaken a comprehensive
socioeconomic impact assessment study aimed at examining
objectively and realistically the possible costs and benefits of
a repository in the state. It should be pointed out that,
despite the provision of voluminous materials explaining and
justifying the State's program, DOE has, to date, refused to

-24-

. 724

provide all of the funds needed for this important study during
1987. DOE'S reluctance to adequately support State economic
assessment efforts probably says a great deal about the
Department's underlying belief as to what the real cost-benefit
ratio is likely to be.

2. What discussions have you had with DOE about economic
benefits?

Response : The State of Nevada has only discussed potential
economic benefits with DOE in the context of commenting on the
Environmental Assessment. Until DOE is willing and able to
discuss benefits in relation to costs, it is superfluous to
attempt any productive dialogue.

Several local governments in southern Nevada have
attempted, over the past two years, to ascertain from DOE the
materials, equipment, supplies, and services requirements of a
Nevada repository in order to help local businesses and
industries in the procurement process. DOE has not responded to
local inquiries, even though site characterization officially
began on May 28, 1986, and exploratory shaft construction is due
to start in 1988.

3. Would more serious discussion of potential economic
benefits, for both the period of site characterization and
construction, increase your state's willingness to go along?
Response : Any discussion regarding economic benefits of a

repository in Nevada is extremely premature and detracts from the
real issues involved with the siting of a facility at Yucca
Mountain. First, as pointed out above, any direct economic
benefits of a repository must be balanced with a clear picture of
possible economic and other liabilities. Such a balanced

-25-

725

analysis is lacking at this time. However, once accomplished, it
is likely to reflect a situation where, at best, the
costs/benefits are about equal, or at worst, where the economic
and other negatives outweigh the potential benefits.

Prospective indirect economic benefits associated with
a state's acceptance of a repository — such as linking the
supercollider project to the repository represent a somewhat
different situation. Here we are talking about compensation to
one state for accepting something other states are unwilling to
accept but is in the nation's interest to develop. Such an
approach would certainly sweeten the deal for a state ultimately
selected for the repository. However, in Nevada's view,
discussion of linking the supercollider project or any other such
compensatory project to the acceptance of a repository by any
state before the site within that state has been proven to be
technically suitable for isolating the extremely toxic nuclear
materials to be disposed of there, is not only inappropriate but
even irresponsible.

The Nuclear Waste Policy Act requires that technical
factors relative to site suitability be the predominant criteria
by which a repository location is selected. To offer economic
benefits and compensation to a state before a repository site has
been deemed suitable — or, in the case of Nevada, where the
Yucca Mountain site has been shown already to have potentially
serious flaws — is to infer that the technical viability of a
site is less important than political and other considerations.
Nevada believes that such an approach will only confuse the
important issues surrounding site selection and could have
disastrous consequences should a technically inferior site

-26-

. 726

ultimately be chosen as a result of the emphasis placed on

economic benefits and compensatory factors.

LAWSUITS

1. What are the main contentions in lawsuits that you have

filed against DOE concerning the nuclear waste program?

Please provide a list of the pending lawsuits, where they

are filed, and the status.

Response : Nevada is petitioner in the following lawsuits,
all filed in the Ninth Circuit Court of Appeals:

1. Nevada v. Herrington, 777 F. 2d 529, (Ninth Cir. 1985).
the Court found in Nevada's favor regarding funding for
independent technical studies under Section 116(a) of the NWPA.
DOE has not yet funded several of these studies.

2. Nevada v. Herrington. No. 85-7308. This action
challenges the adequacy of U.S. DOE's siting guidelines under
Section 112(a) of the NWPA (consolidated with EPI v. Herrington.
No. 84-7854).

3. Nevada v. Herrington. No. 86-7307, challenges proce-
dures used to nominate, recommend and obtain Presidential approv-
al of sites for characterization.

4. Nevada v. Herrington, No. 86-7308, challenges the
Secretarial decision to characterize Yucca Mountain without first
obtaining Congressional withdrawal of land pursuant to Federal
Land Policy and management Act.

5. Nevada v. Herrington. No. 86-7309, challenges the legal
adequacy of the final Environmental Assessment for Yucca Mountain
under Section 112(b) of NWPA.

•27-

727

6. Nevada v. Herrington, No. 86-7310, challenges the
Secretarial preliminary determination of suitability under
Section 114(f) of NWPA.

7. Nevada v. Herrington, No. 86-7311, challenges the
Secretarial denial of funding under Section 116(a) and (b) of the
NWPA for judicial review of Secretarial action under Section
119(a) of the NWPA. Oral argument was held on February 12, 1987,
and the case is now under advisement.

-28-

. 728

RESPONSES TO QUESTIONS POSED BY SENATOR JAMES McCLURE

1. Is there anything we. as Congress, or that the Department,
could bring to the nuclear waste disposal process, that would
shift the focus away from the litigious confrontational bind we
now find ourselves in, and towards a more productive and
constructive avenue?

Response; This question poses an interesting distinction
between the objective, scientific and technical resolution of
problems and the political, legal and regulatory resolution of
problems. It is noteworthy that the basic argument contained in
most of the lawsuits filed against the Department of Energy
assert the Department's failur'e to use the scientific, objective
or technical approach. If Congress believes that the scientific
and objective approach is the better one, and certainly it is the
approach preferred by the Nuclear Waste Policy Act, then Congress
should demand that approach of DOE as the states have been doing
for several years.

The Department made its first major departure from the
scientific approach when it elected to develop subjective siting
guidelines. The current DOE siting guidelines are flawed from
both a scientific and a logic perspective. The guidelines
operate on the illogical premise that all sites and locations are
considered suitable until the evidence proves that this is not
the case. Not only does this faulty approach defy logic and
sound scientific methods but it has the effect of shifting the
burden of proof regarding the suitability of a given site from
the Department to someone other than DOE, such as the State or
the NRC. DOE uses the fact of a lack of (or paucity of) data as

729

a tool to confirm the predetermined suitability of the existing
sites. The Department compounded this problem by proceeding to
select sites for characterization on the basis of political and
ease-of -siting considerations (sites which were owned by the
government in states with little political resistance capabili-
ty), thereby assuring that its two preferred sites (Yucca
Mountain and Hanford) were chosen for characterization.

The best way for Congress to bring the nuclear waste dispos-
al program out of its litigious confrontational bind is to cause
the program to be conducted in accordance with the law. In the
event that Congress cannot or will not do that, the states' only
remedy is in the courts.

Congress can begin to resurrect the program by directing DOE
to develop new, objective and technically-scientif ically base
siting guidelines and then apply those guidelines in a truly
objective site screening process as provided for in the Nuclear
Waste Policy Act. Congress must also direct DOE to comply with
the Act in all other respects including the requirement to
identify potential second repository sites and the stipulation
that the Department consult and cooperate with affected states
and tribes. If Congress can see to it that DOE conducts a site
selection program aimed at finding the best and safest repository
site (not one that is only marginal or acceptable), and if that
program is conducted according to impeccable standards of
objectivity and scientific justifiability, the state ultimately
found to contain such a site would find it very difficult to
challenge the legitimacy of the selection process. However, as
long as DOE is allowed to run roughshod over the Act's
requirements for the pre-eminence of scientific and technical

. 730

factors in site selection, the program will continue to be
crippled by lawsuits and other forms of protest by states,
tribes, interest groups and concerned citizens.
2. It is my understanding that C & C (Consultation and
Cooperation) negotiations are now totally deadlocked. Could you
provide the Committee with evidence that you have made good-faith
efforts to sit down with the Department to hammer out a C & C
agreement? How would you characterize these efforts to date?
What would it take to bring you back to the table at this point?

Response ; It is correct that the consultation and
cooperation agreement negotiations are not moving. The reason
for Nevada's reticence to negotiate a C&C Agreement at this time
is that the Department has failed to deal constructively and
honestly with Nevada, and has violated the statute. We see no
valuable objective in spending time discussing details of program
administration when there is such extreme disagreement on basic
principles of the statutory compliance. On December 16, 1986,
Governor Bryan communicated the State's position regarding
consultation and cooperation to the Secretary. A copy of that
correspondence is attached. DOE has, to date, shown no interest
in negotiating the points raised in the Governor's letter.
3. a. The site characterization process is estimated to cost
upwards of $1 billion in each of the three states under
consideration for the first repository. Has your state
considered the economic benefits that such a undertaking might
provide?

Response ; The State of Nevada is looking very carefully at
the potential economic benefits and costs associated with site
characterization. The fact that DOE estimates it will cost $1

731

billion to characterize the Yucca Mountain site, in no way means
that the State of Nevada will realize substantial economic (i.e.,
monetary/employment) benefits. Indications are that very little
in the way of site characterization benefits will accrue to the
state or to local communities. DOE's own estimates indicate
that, at most, 273 workers will be employed during
characterization. That represents something like two tenths of
one percent of the work force in the two-county area surrounding
the site, assuming that all 273 jobs are filled by new workers.
However, DOE expects that sixty percent (60%) of those 273 jobs
will be filled by workers already employed at the Nevada Test
Site. Consequently, the employment benefits of site
characterization are so small as to be insignificant.

DOE has yet to provide the State with any information
concerning other in-state expenditures that may result from site
characterization (i.e., construction supplies, materials,
services, etc.) despite repeated requests for such data.
However, we assume that supplies, equipment and the like will be
procured on a low-bid basis. It is very likely that most of the
"benefits" resulting from such procurements will accrue to large
suppliers, companies and organizations outside of Nevada simply
because of existing economies of scale.

A great deal of the estimated $1 billion characterization
costs can be expected to go to long-time DOE contractors located
in other states. As a result, Nevada institutions can expect to
see relatively very little in the way of technical or research
dollars that might be available.

In summary, it has been DOE's policy to stress the potential
economic advantages of site characterization (as well as

732

subsequent construction and operation of a repository). In fact,
DOE has not done an accurate assessment of the economic costs and
benefits with regard to characterization. However, DOE's own
conclusions, as reflected in the Environmental Assessment for the
Yucca Mountain site and the Draft Socioeconomic Monitoring and
Mitigation Plan, indicate that economic benefits to the State are
likely to be insignificant or non-existent.

3.b. If what you claim about the technical flaws of yours site is
indeed true, then wouldn't the best proof of that claim be the
real, scientific findings that would result from such an
undertaking? So you would win on two fronts" (1) substantial
monetary and employment benefits to the State, and (2) scientific
substantiation that your sites are unsuitable for nuclear waste
disposal .

Response; As noted above, the relationship between site
characterization work and economic benefits to the State or local
communities is not likely to be significant. More importantly,
the fact that DOE spends money on characterization activities
does not automatically mean that crucial technical issues
relative to the Yucca Mountain site will be answered — or even
adequately addressed. DOE has attempted to avoid addressing some
of the more fundamental technical issues for years and has tried
to prohibit the State of Nevada from conducting studies aimed at
generating needed technical data.

An example of DOE avoidance of key suitability issues while
forging ahead with expenditures of research funds at Yucca
Mountain involves recommendations made by the National Academy of
Sciences in 1979 relative to the potential suitability of tuff as
a host medium for a repository. NAS advised DOE that five issues

733

needed to be addressed before major resources are committed to a
tuff site (such as Yucca Mountain). Those issues involved the
seismic and volcanic stability of the site; lateral variation in
thickness and character of the tuff; the fact that tuff terrains
are typically broken by faults into blocks; the stability of tuff
in the presence of elevated temperatures; and the presence of
natural resources associated with tuff formations. Despite the
expenditure of millions of dollars since 1979, DOE has yet to
adequately address these key issues raised by the NAS. Given
DOE'S track record in conducting (or avoiding) site suitability
investigations at Yucca Mountain, and the fact that the economic
benefits to Nevada from characterization are likely to be
insignificant (with major outlays of funds going to out-of-state
contractors and suppliers), rather than "win on two fronts,"
Nevada is likely to be shortchanged in both instances.
4. Besides the influx of jobs and money directly associated
with site characterization, what other socio-economic benefits
would you consider as essential to your State's full cooperation
in the site selection process?

Response ; Nevada believes that it is currently cooperating
fully in the site selection process. It is the State's role, as
prescribed by the Nuclear Waste Policy Act, to monitor and
oversee DOE's siting activities and assure that the conclusions
drawn and decisions reached are appropriate and sound and that
the health and safety of the citizens of the state are being
adequately protected. Nevada has consistently striven to carry
out that role.

Additional socioeconomic benefits for the State will not
"fix" the site selection process simply because Nevada and the

■ T in/. r\ 0.1 _ O L

734

other potential host states are not the problem. The question
infers that state "cooperation" to date has some how been lacking
and economic "sweeteners" might promote less aggressive state
oversight. The problem to date has been DOE's refusal to follow
the letter and spirit of the Nuclear Waste Policy Act. In
instance after instance, DOE has attempted to use the Act to
ratify predetermined decisions. Had the Department heeded
state's concerns over the inadequacy of the siting guidelines —
the first major decision document developed under the Act -- many
of the current siting problems would have been avoided. If DOE
had done a scientifically objective job of screening and ranking
sites instead of manipulating the site selection methodology to
assure that the Hanford and Yucca Mountain sites would be
included in the top three sites, it would not now be accused of
blatant mismanagement of the program. Likewise, if DOE had
followed the letter of the law and not attempted to eliminate the
second repository program for political reasons, the Department
would not be accused of bringing the entire repository program to
the brink of disaster.

Nevada has and will continue to fully cooperate in the
repository siting program. However, the State cannot and will
not, for the sake of economic benefits, roll over and abdicate
its responsibilities to assure that DOE's work and decisions are
adequate, legal and scientifically justifiable. Until such a
time as a site is shown beyond doubt to be technically suitable,
the question of economic benefits is and must remain superfluous.
5. In your opinion, would earlier, greater involvement by NRC
and EPA help restore your confidence in DOE's program?

735

Response ; Earlier and greater involvement by the Nuclear
Regulatory Commission and the Environmental Protection Agency
would have created better confidence in DOE's program, but only
if both of those agencies were free to act as checks on DOE's
program. There is a major institutional problem in assigning the
mission function for the development of a major public works
project with significant environmental implications to one
federal agency while its sister agency (NRC) must measure the
radiologic health and safety risk of the project and approve its
construction. Only if the NRC is in a position to freely judge
the proposal will public confidence be enhanced.

The NRC's evaluation and concurrence in DOE's siting guide-
lines is a case in point. NRC's staff certainly realized that
objective siting guidelines would be preferable in developing
information with which to evaluate the merits of competing sites.
But the NRC commissioner's political deference to a sister agency
within the same administration caused the Commission to concur in
the guidelines notwithstanding their subjectivity. This
institutional problem identifies a major state question with
respect to NRC repository licensing. Will the Commission again
defer to the political and institutional momentum engineered by
its sister agency, the Department of Energy, if that department
submits an inadequately supported application for licensing?
6. How would you characterize your relationship with DOE to
date? What could be done to improve your ability to work with»
communicate with, and provide advice to DOE?

Response ; Nevada's relationship with DOE relative to the
high-level waste program is difficult to characterize simply. In
general, the state has enjoyed a fairly good working relationship

736

with the DOE project office in Las Vegas. On numerous occasions.
State officials and DOE/Nevada representatives have been able to
work out agreements on difficult and potentially contentious
issues, only to have those agreements vetoed by DOE/Headquarters
personnel .

The State's relationship with the Office of Civilian
Radioactive Waste Management (OCRWM) in Washington, D.C. has been
considerably more negative. It is the State's contentions that
DOE/Headquarters decision makers tend to view State-DOE
relationships in a much more adversarial manner and see the State
solely as an obstacle in the path of its repository program.
DOE/Nevada officials, on the other hand, appear to understand
and, in many cases sympathize with State issues and concerns.

An example of the divergent perspectives held by
DOE/Headquarters and DOE/Nevada with regard to a key area of
State concern involved the State's contention that it needed to
conduct independent technical studies as part of its oversight
function. State and DOE/Nevada officials were able to reach
agreement on the State's proposed technical work and even signed
a protocol allowing Nevada's activities to begin. However, the
agreement was summarily vetoed by OCRWM headquarters staff,
precipitating an extended legal fight which resulted in the
affirmation of the State's right to conduct such studies. Had
DOE/Headquarters followed its project office's advice and
recommendations, a lengthy and unnecessary legal battle could
have been easily avoided.

Nevada believes that much of the difficulty that now exists
in the relationships between DOE and the states could be
eliminated if DOE project offices were given more authority and

737

latitude in addressing state concerns. DOE Headquarters
officials informally state that they expect state/DOE
relationships to be constantly and predictably adversarial, and
that states are bent on derailing the repository program. Given
that attitude and the fact that more and more programmatic
authority is being centralized in Washington, D.C., Nevada does
not expect that more effective or meaningful Departmental
consultation or cooperation will be forthcoming in the
foreseeable future.

7. Have any of you taken the time to study the process by which
the State of New Mexico negotiated and implemented than version
of a "C & C agreement" with DOE for the waste disposal activities
taking place at the Waste Isolation Pilot Project near Carlsbad,
New Mexico? Have any of you visited the WIPP facility, or talked
with the state government and environmental representatives in
New Mexico to learn from their experiences?

Response ; Nevada has indeed studied the process by which
the State of New Mexico negotiated and implemented its version of
a C«iC agreement for the Waste Isolation Pilot Project. You may
recall that agreement was written as a stipulated resolution of a
lawsuit. It was not written because of the willingness of the
federal government to cooperate with the State of New Mexico.
From the beginning, its execution was not wholly satisfactory to
the State of New Mexico, and subsequent litigation was necessary
to resolve additional issues upon which the federal government
and state did not agree. The State of New Mexico is continuing
to assert its dissatisfaction with DOE's interpretation of the
agreement with respect to transportation issues.

738

Nevada has worked closely with representatives of New
Mexico's Environmental Evaluation Group (EEG) . In fact, Nevada
transportation representatives are, at the present time, working
with New Mexico officials in an attempt to require DOE to adhere
to the letter and spirit of the New Mexico C & C agreement
governing the transportation of waste to the WIPP facility. As
it has done with regard to the Nuclear Waste Policy Act, DOE is
attempting to interpret the New Mexico agreement to suit its
(DOE's) own purposes and is reneging on commitments relative to
transportation issues and to the application of EPA performance
standards to the WIPP facility.

Nevada does not view the DOE/New Mexico C & C agreement as a
model accord for a potential repository state. The New Mexico
agreement was not something the state entered into willingly or
as a consequence of its rights under law. The agreement
represents the best New Mexico could do under a very difficult
set of circumstances wherein DOE was able to ride roughshod over
state concerns and interests until a court decision finally gave
New Mexico a certain amount of leverage.

Nevada views its role under the Nuclear Waste Policy Act as
significantly different from and more substantial than New
Mexico's role vis-a-vis the early days of the WIPP project.
Consequently, any C & C agreement (or even the negotiations
needed to reach such an agreement) must be based on a mutual
acknowledgement of the importance and substance of the state's
rights and responsibilities under the NWPA.
8. a. Most of you have read GAO's draft report on "Institutional

Relations." This report was done at the request of this

Committee, and should be available in final form by the end of

739

this week. What is your opinion about the conclusions and
recommendation in this report?

Response ; We believe that the conclusions and
recommendations made by the GAO are a good first step to improve
institutional relations between the states/tribes and the
Department. However, they fall short of really attempting to
define the problem and make significant recommendations. The
conclusions and recommendations are focused on the symptoms of
the problem rather than the problem itself. Additionally, the
attempt to characterize the concerns of the states and tribes as
dissatisfaction and disenchantment grossly understates these
concerns.

8.b. If the recommendations in this report were implemented,
would this significantly improve the prospects for success of the
Program?

Response ; The recommendations contained in this report, if
implemented, would do little to improve the prospects for the
success of the program in that the GAO fails to recognize and
address the fundamental underlying problem with the program.

It is Nevada's contention that the finely crafted
relationship established between DOE and the states in the Act
has not been fully realized, and that this situation threatens to
render the purpose and framework of the Act inoperative. We
further contend that the cause of this failure rests strictly
with the Department of Energy and stems directly from DOE's
inability or unwillingness to understand the fundamental nature
of the state/federal (i.e., DOE) relationship under the Act. For
whatever reason, DOE has chosen to pursue its role as program
decision maker with relish — as it has every right and

740

responsibility to do. However, at the same time, the Department
has attempted, at nearly every opportunity, to thwart the states'
efforts to fully exercise their obligations as guardians of the
public interest. Unless balance is restored and restored quickly
to this critical relationship, DOE will find itself in a
situation where it is unable to develop the level of public
confidence essential to success in this controversial
undertaking .

What DOE has failed to grasp in over four years of NWPA
operation is states such as Nevada do not exist simply as
obstacles in the path of its repository program. We have a role
to play that is every bit as crucial as DOE's. While state
relationships with DOE ar@ and should be adversarial, it is only
out of this adversity that a firm basis of public confidence in
DOE'S handling of the waste program can emerge.

DOE'S waste management actions and decisions since 1983
present very clear evidence that the Department has never grasped
the significance of the states' role in furthering the
Department's own interests and purposes under the Act.

From the beginning, the Department has attempted to
frustrate state involvement in the siting process. In developing
its guidelines for siting high-level nuclear waste repositories,
DOE engaged in an elaborate exercise wherein states' input was
solicited only to be disregarded when it did not coincide with
preconceived DOE decisions about how the site selection process
should be handled. The result was a set of siting guidelines
that are overly subjective and which failed to adequately
discriminate between potential sites when applied in the various
Environmental Assessments. Had DOE heeded state concerns about

741

the guidelines early on, it would not have been faced with a
situation where it was trying frantically to build objective
technical measures into a set of standards that are inherently
flawed. Instead, DOE now faces litigation by numerous states and
interest groups relative to the adequacy of the guidelines.

The Draft EA's themselves are another example of DOE
intransigence when it comes to state involvement in key decision
areas. Nevada and other states consistently asked DOE for nearly
two and one-half years for the opportunity to participate in the
development of the Draft EA documents, especially in the design
of the ranking methodology that would be used to discriminate
between sites. DOE steadfastly refused to allow states the
opportunity to influence the form or substance of those documents
until they were issued in draft form and until DOE was already so
committed to decisions relative to content, methodologies, and
the like that it was unable to give more than lip service to
state concerns as finally expressed in formal comments. The
result — environmental assessments that are inadequate for
substantiating DOE claims relative to site suitability and which
bind the Department into an inflexible and extremely limited view
of the various sites under consideration. Instead of public
confidence and acceptance being enhanced by the EA's - DOE is
left to defend a set of decision documents that are themselves
objects of skepticism and public derision.

DOE'S management of the nuclear waste fund has likewise been
aimed at limiting, whenever and wherever possible, state access
to funds needed to fully carry out NWPA responsibilities. DOE's
performance in this regard is especially reflective of how the
Department has approached other key aspects of the repository

742

program. Simply put, DOE interprets the Act according to its own
interests regardless of the intent of Congress or even the letter
of the law itself. The recently decided lawsuit brought by
Nevada over the State's right to use waste fund monies to conduct
independent, confirmatory studies relative to site suitability is
an excellent example of this DOE "stonewalling" strategy.
Ignoring the language of the Act and the obvious intent of
Congress that potential repository states be able to engage in
reasonable studies and other activities to assure that DOE's
conclusions about the suitability of sites are, in fact,
accurate, DOE issued a set of internal policy guidelines that
expressly prohibited states from conducting any such independent
analyses. When the Ninth Circuit Court of Appeals clearly
decided the matter in Nevada's favor, saying unequivocally that
"because DOE's guidelines seek to 'minimize' independent
collection of primary data, and require DOE approval before any
federally funded tests can be run on the primary data that DOE
has collected, they undermine the independent oversight role that
Congress envisioned for the states," DOE immediately attempted to
again thwart Nevada's efforts by issuing new "Guidelines" that
require new and different hoops for the state to jump through.
Meanwhile, the state falls further and further behind in its
ability to oversee DOE technical efforts relative to the Yucca
Mountain site, and the public is left with the indelible
impression that DOE has something to hide — that it fears its
technical work and conclusions will not stand close scrutiny.

As I pointed out earlier and as the examples I've cited
demonstrate, the DOE approach to implementing the NWPA has been
to interpret the Act only in ways that support pre-Act siting

743

decisions and to limit and interfere with the role prescribed for
potential repository states. What DOE has failed to grasp is the
essential element of mutuality between DOE and these states.
Nevada contends that the Act and DOE will be successful only to
the degree that the states are successful in carrying out their
role as overseers and custodians of the public interest. DOE and
potential host states may be adversaries, but we are both
necessary for the success of the repository program.

744

THE STATE OF NEVADA

EXECUTIVE CHAMBER

Carson Cily. Nevada 89710

RICHARD H BRYAN
Corrmor

TCLtPHONE
1702) 8ai-5*ro

December 16, 1986

The Honorable John S. Herrington
The Secretary of Energy
U.S. Department of Energy
Washington, D.C. 20585

Dear Mr. Secretary:

I have reviewed Mr. Pusche's November 19, 1986 letter
seeking to enter into a binding written agreement with the State
of Nevada pursuant to Section 117(c) of the Nuclear Waste Policy
Act, 42 U.S.C. 10137(c). His letter proposes commencement of
negotiations with a "team" of Department of Energy personnel
headed by Mr. Don Schueler, Deputy Manager of the Nevada Oper-
ations Office.

I believe that the concept of the development of a
written agreement between an affected State, such as Nevada, and
the Department of Energy, as originally envisioned by Congress,
has considerable merit and Congress should be commended for their
foresight in this regard. However, I do not believe that Con-
gress or any of the affected states envisioned that the Depart-
ment of Energy would have acted irresponsibly and illegally in
implementing the Act as has now become so apparent.

As you )'.now, I, along with the Attorney General and the
entire congressional delegation have filed actions challenging
the legality of nearly every major decision that the Department
has made in this program. These challenges are supported by a
broad spectrum of the citizens of Nevada. These actions
challenge the validity, as well as the legality, of this program.

745

Honorable John S. Herrington
December 16, 1986
Page Two

and to the extent that they are successful, major program de-
cisions regarding site selection that you have made may be
declared null and void and the entire siting process restarted.
This may include the development of new siting guidelines,
rescreening for potentially acceptable sites, the development of
new environmental assessments, and restarting the second repos-
itory program.

Given the way in which the department has implemented
the Act, it is now impossible for the State of Nevada to have
confidence or trust in any negotiations with the Department of
Energy regarding the implementation of the balance of the program
until the uncertainties surrounding the aforementioned concerns
are resolved by the courts. Congress or by the Department.

To the extent that our concerns regarding the legality
of the siting guidelines, the site selection process, the en-
vironmental assessments and the timing of the preliminary deter-
mination of suitability required by Section 114(f) of the Act and
the second repository program are negotiable, then perhaps
discussion regarding a possible written agreement may be appro-
priate, and I'd appreciate your consideration of those matters.

Additionally, the manner in which the Department of
Energy has treated the State of Nevada in attempting to consult
and cooperate, as required by the Act, has compounded this
situation. The Department has conducted its grants application
process in an arbitrary fashion. As you know, Nevada has been
forced to seek review by the courts of the way. in which the
Department has used the grants process to limit the State's
participation in the program, and it appears that, even though
the court ruled in our favor, we now may be forced back to court
over our current grant application.

This lack of cooperation also diminishes our confidence
that the Department would honor the terms of a written agreement
any more than it has lived up to the statutory requirements of
the Act. Should the Department be sincerely interested in
consulting and cooperating with the State of Nevada, it can
demonstrate that commitm.ent by fulfilling our grant request
without the continuing difficulties which has been present in
nearly every one of our past, as well as our current, grant
requests.

746

The Honorable John S. Herrington
December 16, 1986
Page Three

I'd appreciate your consideration of these concerns,
and I would be happy to provide any further information you may
require. Robert Loux , Director of State Nuclear Waste Project
office will be available to discuss our concerns with Mr. P.usche
or Mr. Schueler at any mutually convenient time.

RHB/dkl

cc: Mr. Ben Rusche

Mr. Don Schueler

Mr. Grant Sawyer

m^hmh^

747

YAKIMA INDIAN NATION RESPONSES TO QUESTIONS OF THE
SENATE COMMFTTEE ON ENERGY AND NATURAL RESOURCES

March 17, 1987

Questions from Senator McClure

QUESTION

Is there anything that we, as Congress, or that the department, could bring to the nuclear waste
disposal process, that would shift the focus away from the litigious, confrontational bind we
now find ourselves in, and towards a more productive and constructive avenue?

RESPONSE

We disagree that the focus is on a "confrontational and htigious basis." Litigation is the
method provided in the Nuclear Waste Policy Act ("NWPA") to secure independent review
of the actions of the Department of Energy under the Act Section 1 19 of the NWPA pro-
vides for review of the Administrations actions sought by the Yakima Indian Nation. We
beUeve that Congress in its oversight is able to determine that the Department of Energy
has not fulfilled its responsibility to affected first round states and tribes as Congress
directed. Congress of course can, and probably will, give the Department of Energy direc-
tion. This would limit the need for litigation. The Yakima Indian Nation resents that it has
to advance its limited funds to secure such compliance. We do not wish to be in litigation.
It is our only method we find available to us to fulfill our responsibility under the NWPA.
While we must continue this litigation until Congress or the President brings the Depart-
ment of Energy into compliance with the NWPA, we continue to directly seek DOE's re-
spect for Congressional directed consultation and cooperation responsibility of the Yakima
Indian Nation

In developing the consultation and cooperation concept included by Congress in the
NWPA, a real need based on the past actions of DOE was shown. Congress wanted to
change this improper method of operation. In fact one of the original concepts was that of
consultation and concurrence. The idea was that the federal government should work with

748

key governmental entities, such as the states and tribes and that concurrence authority
should be provided in regard to the location of national repositories. This resolved through
compromise from an absolute veto into the consultation and cooperation concept contained
in the NWPA, The ultimate authority was enacted on the premise that the federal program
might overlook key issues in its technical analysis in determining site suitability, and a State
or Tribe should have an opportunity to indicate and resolve these insufficiencies, which
would invalidate the suitability of the site selected for development of a repository. Legisla-
tive history shows considerable and reasonable concern on the part of Congress regarding
DOE's lack of concern regarding public and local interests. The present st^us regarding
the selection of such a repository, shows that Congressional concern was well placed.

The problem is greater than the present controversy. If the Department of Energy per-
sists in its present tactics, the disposal of high-level nuclear waste in a geologic repository
will be delayed or might fail. This danger might be substantially reduced—if not completely
avoided—if the public had grounds for confidence that the program will actually result in sui-
table disposal of radioactive wastes. That confidence is now completely lacking, due to a
fundamental difference in attitudes about the problem. Placing so much emphasis on the
unrealistic schedules in the NWPA, displayed an undeservedly optimistic attitude about the
radioactive waste disposal problem. In particular, those aspects of the schedule which have
been interpreted as an indirect endorsement of the poor candidate sites for the first reposi-
tory DOE had selected prior to NWPA passage, have had very profound and negative ef-
fects on the credibility of the program. Similarly, DOE's attitude that it need not find the
best site, but rather only a "suitable" one, and that there need only be one suitable site re-
maining at the conclusion of site characterization, also display unseemly optimism about
the likelihood of success in this program. These attitudes are simply not what we believe
Congress intended when they enacted the NWPA and we seek means to determine this in-
tent.

These attitudes contrast sharply with the attitudes of the Yakima Indian Nation, other af-
fected parties, and the general public concerning radioactive waste disposal. The public
simply does not accept the notion that there are no significant technical difficulties in the
way of successful disposal, or that virtually any site DOE may choose can be shown to be sui-
table. This is particularly true regarding sites such as Hanford that were selected on the sole
basis that they were within an already established nuclear reservation. Even if basalt and
the Columbia Plateau were a gracious host for this radioactive material, no one with any re-
gard for the ground water flow problem would place it so close to two of the major rivers in
this vast basalt bed.

We believe this public skepticism about DOE's execution of its responsibility under the
NWPA is entirely correct and justified, but for purposes of achieving successful, acceptable
disposal, it does not really matter whether the skepticism is correct or not. As long as the
program continues to be implemented in such a non-conservative manner, and continues to
violate such common sense ideas as the need to avoid fractured, saturated rock, rivers,
towns, lakes, major aquifers, earthquake faults, parks, natural resources, etc., the public per-
ception of the program will continue to deteriorate, and confrontation and htigation will

749

abound. We believe that all these common sense problems could be avoided by sites within
the United States using a properly conservative approach to site selection. The public's
justified uneasiness about the program will never be quelled as long as it is so apparent that
DOE is making no effort to avoid these common sense problems and find a truly excellent
site.

The Yakima Indian Nation feels strongly that the NWPA provided means to have the
federal govenmient and affected govenmients jointly assess the process, procedures and is-
sues in the selection of a suitable repository. Congress can reaffirm its desire to have the
NWPA implemented as it intended. There was substantial wisdom in calling for a consult-
ation and cooperation process. Unfortunately, it appears that the Department of Energy
has mis-interpreted both the letter and the spirit of such legislation. A reaffirmation by
Congress, that it supports and expects DOE to follow the act as regards meaningful partici-
pation would assist in redirecting their effort in a positive way and hopefully would make it
urmecessary for us to advance funds for litigation. At present, htigation remains the only vi-
able option.

QUESTION

2) It is my understanding that C&C (consultation and cooperation) negotiations are now
totally deadlocked. Could you provide the Committee with evidence that you have made good-
faith efforts to sit down with the Department to hammer out a C&C agreement? How would
you characterize these efforts to date? What would it take to bring you back to the table at this
point?

RESPONSE

C&C negotiations between the DOE and the Yakima Nation are not totally deadlocked.
The Yakima Indian Nation initiated the first negotiations in order to provide specific means
by which the Yakima Nation could measure and review program actions by the DOE and
determine the sufficiency of the federal program. We discovered very early in such negotia-
tions, that we were not prepared to take the leadership above all other interested states and
tribes. It was decided to suspend the negotiations pending the completion of the ongoing
DOE- Washington State negotiations. This decision was a wise one, because we are now in a
better position to negotiate a suitable agreement. At the begirming we beheved that the
DOE would follow the NWTA and totally determine its recommendations on science and
technology. After all, DOE like the rest of the federal government has a trust responsibility
to the Yakima Indian Nation.

DOE's early actions dispelled a large portion of this trust and the actions of May 28, 1986
totally destroyed it. Our negotiations will take a more realistic tack. The Yakima Indian
Nation continues to be serious about the possibility of negotiating a satisfactory C&C agree-
ment. We have gone back to the very begirming and are currently assessing the issues that
will result in the active continuance of the instituted negotiations. We do not discount the

750

difficulty in negotiating an agreement when the other party has shown a complete lack of
concern for our interests. In reality the only good agreements are ones that can be based on
such mutual trust where a mere handshake would suffice and the written agreement only re-
cords the agreement to decrease misunderstanding and change of participants. We do not
believe that such an agreement will be the result of the our negotiations but beUeve that we
can accomplish mutual interests by the institution of some binding conflict resolving mecha-
nism.

QUESTION

3) The site characterization process is estimated to cost upwards of$l billion in each of the
three States under consideration for the first repository. Has your tribe considered the
economic benefits that such an undertaJdng might provide.

Furthermore, if what you claim about the technical flaws of your sites is indeed true, then
wouldn 't the best proof of that claim be the real, scientific findings that would result from such
an undertaking? So you would win on two fronts: (1) substantial monetary and employment
benefits to the tribe, and (2) scientific substantiation that your sites are unsuitable for nuclear
waste disposal

RESPONSE

The history of large construction projects near Indian reservations indicates they rarely
produce significant economic benefits for tribal members. The many large projects already
bmlt at Hanford have had Uttle benefit for members of the Yakima Indian Nation. There
are few, if any, hard rock miners in the Tribe. Moreover, few tribal members would be in-
terested in working in such a contaminated place. Even if we were to get our fair share of
the "pork" resulting from site characterization, we believe that supporting a waste of these
funds is irresponsible. There are many worthwhile projects in this area that are delayed be-
cause of lack of funds.

While we fully expect that attempts at characterization of the Hanford Site would con-
firm our impressions about its technical unsuitability, that does not necessarily lead to a con-
clusion that characterization of the site is in the interest of the Yakima Indian Nation or the
United States. For one thing, there is serious question whether the site can be character-
ized at all. The excavation of such large shafts in highly stressed, saturated basalt has never
been demonstrated. Moreover, the contemplated characterization work-sinking of one or
two exploratory shafts and mining of a few horizontal drifts—might not result in the neces-
sary understanding of the Hanford Site. Because of the density of the rock and the apparent
heterogeneity of the deep basalts at Hanford, prohibitive anomahes might be just beyond
the mined areas, but DOE might still be unable to detect them.

The likelihood of ending up with a technically and publicly acceptable site for a repository
is seriously threatened by DOE's stubborn insistence on characterization of a site with so

751

many indications of unsuitability. It is important to note that technical criticisms of the
Hanford Site have come from many quarters besides the states and tribes, including USGS,
NRC, many independent earth scientists, and even DOE's former BWIP Geology and Hy-
drology Oversight Committee. Spending billions of dollars and the better part of a decade
in pursuit of the worst possible site squanders not only money and time but also the possi-
bility of confidence in the program.

Another serious threat to YIN interests that could result from characterization of Han-
ford is the possibility that DOE may be forced to choose it in spite of poor technical suitabil-
ity because of extraneous problems with the other candidates. For example, if we end up
with only one repository for the country, there is a distinct possibility that faults bounding
the Yucca Mountain rock body may make it too small to accommodate all of the waste.
The Texas site is fairly widely viewed as a poUtical impossibility for development as a reposi-
tory, and also apparently has serious technical concerns about salt creep and protection of
the Ogalalla Aquifer.

If characterization of Hanford does not prove to be utterly impossible, it is not difficult
to foresee a scenario that would result in enormous pressure to go with Hanford, which has
been DOE's most administratively convenient candidate for a decade, in spite of serious
continuing technical problems. DOE's blindly optimistic attitude about this program, dis-
cussed above, and supreme stubbornness in continuing to pursue the Hanford Site in spite
of its own admission that it is the worst site, make such a scenario seem not at all unlikely.

Finally, site characterization is not without its impacts. The water and soil coming from
this site that contain both radioactive and toxic materials will have a more ready access to
the environment. We just don't want this material to flow, blow or otherwise be carried to
our fisheries or to our close-by reservation.

QUESTION

4) Besides the influx of jobs and money directly associated with site characterization, what
other socio-economic benefits would you consider as essential to your tribe's fitll cooperation in
the site selection process?

RESPONSE

The Yakima Indian Nation has been participating and cooperating fully in the site selec-
tion process for more than four years. It is in our interests to do so, and we require no "in-
centives" to procure our cooperation. We accept the responsibility that Congress placed on
us under the NWPA and will continue to fulfill it for the benefit of all.

Your very question gives us concern. It is continually suggested by DOE that buying
one's way to a ate may be the ultimate solution to the site selection problem. We do not

752

believe that this is the way to select a site. The best site should be selected. Not just a site
that is suitable and one that has been greased by the receipt of federal funds.

QUESTION

5) In your opinion, would earlier, greater involvement by NRC and EPA help restore your confi-
dence in DOE's program?

RESPONSE

Yes. In particular, we sincerely wish that the NRC would abandon its "hands off' ap-
proach to DOE's site selection process. The Commission has unfortimately instructed its
staff not to interfere in DOE's site selection. Consequently, serious NRC Staff reservations
about some of the sites have been consistently soft-pedaled in NRC's comments on DOE's
studies. Also, while the Commission initially insisted on a meaningful interpretation of the
timing of the preliminary determination of suitability-i.e., that it should be made following
characterization-it later retracted that insistence, thus acquiescing in DOE's complete
emasculation of that provision of the NWPA. This unseernly deference to DOE's mistakes
on the Commission's part is a great disservice to the likelihood of success in the program.

Greater forthrightness in presenting NRC and EPA concerns are necessary, but not suffi-
cient, conditions for greater confidence in the program. Also necessary is for DOE to start
heeding the concerns of these agencies. For example, NRC has now expressed its serious
reservations about the validity of DOE's groundwater analysis for the Hanford Site on at
least three formal occasions. DOE has neither heeded the Commission's suggestions, nor
adequately explained its refusal to do so. The Department is delinquent in dealing with the
concerns of its fellow agencies.

QUESTION

6) How would you characterize your relationship with DOE to date? What could be done to im-
prove your ability to work with, communicate with, and provide advice to DOE?

RESPONSE

The relationship between the YIN and the Richland Operations Office of DOE has been
fairly good, as far as our ability to communicate with key liaison persons is concerned. Our
relationship with DOE Headquarters is less than satisfactory. The basic problems that must
be addressed are the difficulty and length of time it takes to get information from DOE, the
general failure of DOE to consult with us prior to the development of hardened DOE posi-
tions, repeated inadequate notice of important meetings, and failure to adequately deal
with our and other parties' substantive concerns. The YIN takes its consultation and

753

cooperation role very seriously. When DOE begins to take it seriously, our ability to work
with the agency will be much improved.

QUESTION

7) Have any of you taken the time to study the process by which the State of New Mexico ne-
gotiated and implemented their version of a "C&C agreement" with DOE for the waste disposal
activities taking place at the Waste Isolation Pilot Project near Carlsbad, New Mexico? Have
any of you visited the WIPP facility, or talked with the State government and environmental rep-
resentatives in New Mexico to leamfrom their experiences?

RESPONSE

In the New Mexico WIPP experience, it appears that necessity resulted in DOE's acqui-
escence in a de facto institutionalization of the state's role which the agency has thus far not
evidenced a willingness to grant affected states and tribes under the NWPA. Yakima Tribal
Council Chairman Melvin Sampson toured the WIPP facility in 1984 as a member of then-
Secretary Model's Advisory Panel on Alternative Means of Financing and Managing
Radioactive Wastes.

We have discussed the New Mexico C&C experience with New Mexico participants and
have attended several panels where their experience was related. This information is part
of our C&C program.

On our request, New Mexico was kind enough to furnish technical representatives to
meet with us on an individual basis. We appreciated this cooperation and learned from this
contact.

QUESTION

8) Most of you have read GAO's draft report on "Institutional Relations". This report was done
at the request of this Committee, and should be available in final form by the end of this week.

a) What is your opinion about the conclusions and recommendations in this report?

RESPONSE

In general, the YIN supports the conclusions and recommendations in the final GAO re-
port. We particularly note two aspects of the report: first, the response DOE gave concern-
ing its refusal to involve outside experts in application of the site ranking methodology, as
urged by the NAS. DOE told GAO that "the partisan participation of states and tribes at
that point would have been distracting." (GAO/RCED-87-14, p. 41) This comment strongly

754

evidences the general DOE attitude referred to above: that the states and tribes are always
partisan, therefore "distracting," therefore to be disregarded.

Second, the GAO report touches on the differences in attitude between DOE and the
states and tribes. DOE is optimistic about the ability to succeed; states and tribes are skep-
tical. It is important to note that the states and tribes are simply reflecting the attitudes of
the majority of their citizens. As long as those citizens, acting through their state and tribal
governments, see DOE constantly eschewing conservatism in its evaluations, they will not
trust DOE. As numerous other recent GAO reports have shown, DOE has given the public
no reason to trust its judgment concerning stewardship of the enviroimient at its facilities
nationwide. This poor track record— particularly at the Hanford Site-has a great deal to do
with the present skepticism of the YIN and other members of the public.

In discussing its suggestion for increased use of independent advisory groups, the GAO
report notes, "Without the involvement of such groups, states and tribes have to rely on
DOE's judgment or assertions, which they distrust." We strongly affirm this conclusion, and
support the recommendation that meetings or discussions between any independent parties
and DOE should be open to state and tribal participation. We are pleased that this report
is finally being released. We have requested its release.

QUESTION

b) If the recommendations in this report were implemented, would this significantly improve
the prospects for success of the Program?

RESPONSE

The GAO's recommendations, if implemented, would be helpful. Hov/ever, we believe
they are deficient in not recommending more meaningful DOE responses to the substan-
tive concerns of tribes and states and other federal agencies. DOE must either accede to
our substantive comments or give adequate reasons why it does not do so. "We still think
..." is not an adequate response.

The recommendation for employment of independent advisory groups should explicitly
include complete participation by the states and tribes. For DOE to come to us with
completed studies and plans that have already been approved by NAS or any other inde-
pendent body-as they did with the site ranking methodology- is worse for meaningful con-
sultation and cooperation than having no independent oversight at all.

Finally, while we do not rule out the possibility altogether, we share the concerns ex-
pressed by others about negotiation of incremental C&C agreements. Some basic issues
must be resolved and a method for resolving future controversy must be in place.

755

STATE OF WASHINGTON
RESPONSES TO SENATOR BENNETT JOHNSTON QUESTIONS

State-DOE Cooperation

1. Do you believe your state has mads a good faith effort to cooperate with the
U.S. Department of Energy? Describe the contacts with USDOE that you initiated. What
were the results?

The state of Washington has attempted in good faith to consult and cooperate with
USDOE to the full extent allowed under the Nuclear Waste Policy Act. It is very clear
that we and USDOE have widely divergent views regarding the "consultation and coopera-
tion" {C&C) provisions of the Act.

The state of Washington, in July 1983, contacted USDOE to begin C&C negotiations.
After more than 18 months of good faith negotiations, the parties were unable to resolve
serious issues such as water rights, transportation, emergency response, defense waste, for-
eign waste, work suspension, liability, and other issues. The state became convinced that
the C&C process was not effective when we successfully used NWPA Section 117(b)
Governor's letters to obtain positive results in the areas of water rights and defense
wastes. These issues had been the subjects of intense C&C negotiations. Attachment #1 is
the state of Washington report to Congress on C&C negotiations without significant
progress. This report reviews past actions, assesses the current situation, and summarizes
reasons why an agreement has not been signed.

Governor Gardner's February 4 statement to your committee (Attachment #2) reviews how
the state of Washington attempted to report serious technical concerns to USDOE. The
statement also documents how USDOE decision-makers ignored the ranking conducted by
USDOE's own scientists and contractors and chose the most costly and least safe site for
characterization. As a result, USDOE credibility is at an all rime low and the site selec-
tion process is on the brink of total collapse.

In our reading of the Act, affected states and tribes are provided a unique oversight role
which in turn requires that we be involved early and in a meaningful manner in key
decisions and activities. Such a C&C approach would allow these affected parties an
opportunity to influence USDOE policy and direction. USDOE, after four years of trying

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756

to implement the NWPA, is unwilling or unable to allow early and meaningful involve-
ment by the states and tribes in the decision-making process. USDOE selects a course of
action and then asks for our recommendations and comments. We are asked to provide
them comment on draft documents and policies when in reality USDOE has already com-
mitted to a decision.

USDOE's approach toward less than meaningful cooperation appears to be a product of
senior management within USDOE headquarters. The Richland Operations BWIP group
and their contractors have attempted to cooperate, but have also been victims of narrow
headquarters approach. For example, in May of 1986 we were asked to provide comments
and recommendations on the Hanford Environmental Monitoring and Mitigation Plan
(EMMP) and the Hanford Socioeconomic Monitoring and Mitigation Plan (SMMP). We did
respond with timely and substantial comments. Our major comments had to do with the
need to understand the amounts and locations of contamination from defense operations
so such contamination would not be further dispersed during site characterization.
Hanford personnel understood our concerns and asked a contractor to prepare preliminary
draft reports which included our comments and concerns. This report then went to head-
quarters. They responded by instructing BWIP and the contractor to delete the informa-
tion related to our specific concerns. Attachment #3 is a copy of a letter which docu-
ments the USDOE actions.

2. Do you believe that USDOE has made a good faith effort to cooperate with
your state? Describe the contacts with you that were initiated by USDOE. In these cases,
what were the results?

USDOE's efforts to cooperate with the state of Washington have not met the standards
established in the Nuclear Waste Policy Act. In my opinion, USDOE has not moved out of
the darkness and secrecy of the 1954 Atomic Energy Act into the sunshine provisions of
recent acts such as NWPA and RCRA.

USDOE initiated contacts are usually characterized by a few common traits. Meetings are
scheduled with little notice and often the meeting date conflicts with other important
meetings. Meeting agendas are not specific, so interested parties have trouble determining
whether it is a significant or trivial meeting. A few days before, and sometimes a day
after the meeting, the interested parties receive large stacks of paper. Again it is diffi-
cult to separate the significant from the trivial. Meetings are dominated by viewgraph.
presentations which overstate agreements and understate problems.

757

Early on it became apparent that contracts initiated by USDOE had not provided early
and meaningful involvement. In early 1985, states and tribes learned that USDOE had
established coordination groups to coordinate the efforts of headquarters, project offices
and contractors in key areas such as quality assurance, transportation, environmental
quality, etc. It appeared the coordination groups were discussing important technical and
policy issues while the issues were in an early development stage. The states and tribes
suggested that the coordination groups would provide a forum where our ideas, concerns,
and perceptions of each key area could be shared with USDOE and its contractors. We
recognized that USDOE was accountable for final decisions. We only wanted the decision
makers to be aware of our views before decisions were made. After considerable discus-
sion and delay, USDOE reluctantly agreed to our participation.

Soon after the states and tribes began attending the meetings, the substance and the for-
mat of the meetings changed. Smaller working groups were established, but states and
tribes were not invited to participate. The meetings changed to characteristic vicwgraph
show and tell presentation.

Site-Specific Technical Issues

1. \Vhat do you consider the most important technical, scientific or engineering
reasons why your site is inappropriate for a repository?

There are four distinct adverse conditions at Hanford which we consider most significant,
unfixable and cause for immediate disqualification of the site. They are, roughly in
order of importance:

• Groundwater travel time and the uncertainty in its calculation;

• Natural, unequal, internal stress in the basalt which can lead to induced rock
failures;

• Lack of retrievability;

• The presence of methane gas, whether or not it is commercial today.

Groundwater Travel Time

In November 1982, USDOE issued its Site Characterization Report which reported a far
more optimistic finding than the facts could support. USDOE assumed that groundwater
traveled under the Columbia River and discharged into the Columbia River near Wallula

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758

Gap. USDOE estimated a 30,000 to 41,000 year travel time to a 10 kilometer accessible
environment. The state of Washington, the affected tribes, NRC, and USGS all strongly
disagreed with the estimate. USDOE's estimate simply did not stand up to outside
scrutiny.

Early travel time estimates did not stand up to scrutiny because USDOE misinterpreted
Hanford geology and hydrology. Between the Hanford repository horizon and the acces-
sible environment there arc numerous basalt lava flows, generally becoming thinner at
shallower depths. Between these flows are porous, permeable sandy sediments known to
be able to transport groundwater over long distances. Although parts of the large basalt
flows transmit groundwater slowly, other parts of the same flows transmit groundwater
by up to six orders of magnitude (1,000,000 times) more easily. The total range of values
in individual flows alone may span more than 13 orders of magnitude if sediments are
part of the groundwater system.

Where there are continuously adjacent zones of high conductivity leading to the accessible
environment, groundwater will flow preferentially along the path of least resistance at
the highest rate within the parametric envelope of values. Simply stated, if there is a
hole in the bathtub, the water will run out. The great variability in individual flow rates
makes it very difficult if not impossible to determine accurate flow rates for the reposi-
tory as a whole. Although median or mean groundwater travel times may seem to indi-
cate possible compliance with standards, the associated uncertainties cast significant doubt
on the "actual" or real travel times.

The state of Washington believes that calculations, which use current USDOE hydrology
data and a reasonable range of effective porosity values, will indicate a very significant
likelihood that Hanford cannot meet the 10 CFR 60 groundwater travel times. The
Hanford site should be disqualified on this basis alone.

Internal Stresses

The Hanford basalt flows arc under great stress from natural forces, and these forces are
unequal. There are cases where the basalt, which is strong. but brittle, fractures sponta-
neously when confining forces are removed. Therefore, in situ (in-place) stress level is a
critical element in repository design. Slight increases in in situ stress translate into large
increases in waste package spacing with a corresponding increase in the volume of rock
removal. The costs associated with a volume increase are great.

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759

Rockbursts, which mre at^ociaicd with high io titu ttre»e». »re expected to retuJt in high
numbers of worker injuriei and fattlities. The Lucky Fridty ntine in Mulleo, Idkbo, klso
has • high io situ stress situitioD similar to the BWIP repository borison. Mining opera-
tions were recently shut down because or injuries and the lots of life associated with rock
burst accidents. Actual mining conditions in USDOE's proposed very deep Mnd very large
(Dine would be both dangerous and debilitaciog to workers. Tbc natural rock h&j • tem-
perature or 120-140 degrees Fahrenheit, and the ambient temperatures will increase if
waste is cmplaccd. Relative to other sites oi mines, beroic measures must be taken in both
veniilatioD and rock stabilization. USDOE estimates that there would be significantly
more injuries and fatalities at Hanford than any other site under consideration.

USDOE recognizes that Hanford conditions are inherently more dangerous than other
•ndergrouod mining operations. Miners will have Io be drawn from a select population
and especially coodittODcd in order to work under the very hot, humid conditions. Even
though actual work boars would be constrained, miners onder constant physical itress are
prone to errors in judgment. Adverse working conditions will result in high pay
premiums for the miocn.

The hard and brittle Dature of basalt, the adverse working conditions, and the resulting
constrained work hours are a few of the reasons for the constantly escalating costs for the
BWIP project In Dcccmbei 1984. USDOE estimated a basalt repository wooid coit
S7 billion in 1983 doUarv in May 1986, the cost had escalated to $123 billion, tod costs
will continue to escalate

USDOE maoagement deleted from the May 1986 MuUiattribtJte Utility Analyses Report
the following passage addressing uncertainties tod costs:

The stahitity of the ^oie-case result} were tested by extensive sensitivity analyses. The
relative rankings attained in the base case is almost completely Insensitive to any changes
in the technical or value judgments, except for costs. If one could argue that the costs
oiMoeiaied with the Han/ord tile would somehow decrease while the costs for all the other
sites would increase, then the Hanford site could be competitive. The probability Of this
with regard to transportation costs it obviously extremely low since Hanford is the far-
thest site from the samrces of waste. The probability of this scenario with regard to
repository costs is more uncertain, given the uncertainty in site conditions and conse-
quently repository drugn prior to the sinking of exploratory shafts. Several experiences
with salt and some mi-deplh experience In tunnels near Yucca Mountain under conditions

760

similar to those expected at Yucca Mountain make the scenarios also unlikely with regard
to repository costs. For example, the basalt at Hanford is much harder than the other
rock types under consideration, requiring labor-intensive, low-productivity mining tech-
niques. The depth, stress conditions, high temperatures, potential for large groundwater
inflows at repository depth, coupled with almost no or little underground construction
experience, all contribute to the high repository cost estimates. These conditions do not
appear subject to great change."

From this passage it is clear that USDOE scientists and consultants agree with the state of
Washington views. Continuing work at a Hanford repository will lead to ever-higher
repository cost estimates with an unacceptable number of worker injuries and fatalities.

Retrievabilitv

Under 10 CFR 60 waste packages must be retrievable for up to 50 years after emplace-
ment, either for recovery of increasingly valuable materials or because of a repository
failure. As spent fuel is added to the rock system, up to its size and tonnage capacity,
enormous amounts of "new" heat will affect the already hot, inherently unstable Hanford
geologic environment. If mining conditions are going to be at the limits of tolerability
for men and equipment at the beginning of operations underground, mining experience
indicates that toward the end they will be so difficult, dangerous and expensive that
recovery of tens of thousands of individual waste containers will be practically impossi-
ble. In real mines workings are kept open only for a matter of months, then abandoned to
collapse and admit groundwater saturation. There is no job underground more feared, for
good reasons, than dewatering and renovating an old, wet, deep mine. Even clean, dry
mines require constant, costly maintenance and that is confined to shafts, main haulage-
ways, and utility rooms. After up to nearly a century of oxidation and thermo-mechani-
cal stress, none of the supports, sealants or systems in a Hanford repository could be
trusted; the mine would have to be totally rebuilt out to the working faces.

USDOE has recognized the seriousness of the problems associated with retrievability from
deep basalts. In the 1982 Site Characterization Report, the approach was to use long hori-
zontal boreholes with multiple canisters in each borehole. At each new stage of the pro-
gram USDOE has added an additional engineering "fix" to remedy the retrievability situa-
tion. The current approach envisions short horizontal boreholes, steel liners, and
prepacked backfill "doughnuts". Each of the proposed solutions had significantly

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761

increased costs while not providing confidence that the containers could be recovered in
the manner specified in the Act. USDOE should be required, as a pre-condition to con-
tinued site work, to show cause why it should not be disqualified on this point alone.

The Presence of Natural Gas

USDOE siting guidelines have a disqualifying condition for natural resources which states
that a site shall be disqualified if:

"I) Previous exploration, mining, or extraction activities for resources of commercial
importance at the site have created significant pathways between the projected
underground facility and accessible environment . . .'

USDOE response was as follows:

"Records do not reveal any major previous exploration, mining, or extraction of
resources in the reference repository location. This data base is not expected to
change . . .'

'2) Ongoing or likely future activities to recover presently valuable natural mineral

resources outside the controlled area would be expected to lead to an inadvertent loss
of waste isolation."

USDOE response was as follows:

"Possible future activities to recover presently valuable natural mineral resources
(high unit value or oil and gas) outside the controlled area are not expected to lead
to an inadvertent loss of waste isolation . . ."

Attachment #4 is a package which contains the following:

1. Language from the May 1986 Environmental Assessment about the disqualifying
condition for natural resources.

2. Letters from USDOE to the U.S. Bureau of Land Management which document
many requests for leasing of USDOE land on the Hanford site for exploratory
drilling for oil and gas. USDOE turned down these requests because Hanford
was and is under consideration for a repository.

3. A Washington State Department of Natural Resources report which documents
the great petroleum potential beneath the Hanford Reservation.

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762

4. Copies of documents in the public domain which document previous exploration
and extraction activities on the Hanford site.

5. A copy of Washington State Nuclear Waste Board Resolution 87-2, which peti-
tions Secretary Herrington to reassess the disqualifying condition relating to
natural resources on the Hanford site.

Hanford groundwaters are saturated with methane, as natural gas, at repository depth. It
poses threats of asphyiation and explosion if not continuously removed from all workings.
The recent determination by USDOE that gassy conditions will exist at the repository
horizon has resulted in concerns about the adequacy of ventilation. Attachment #5 is a
letter to USDOE requesting specific information concerning the reasons for increasing the
size of the second exploratory shaft at Hanford.

USDOE has not explained how, during the 50 years after waste package emplacement,
natural gas will be removed from the unventilated portions of the mine. Groundwater
further heated by waste packages holds less gas than does unheated groundwater. Only
the working areas of the mine will be ventilated so natural gas will concentrate in unven-
tilated areas causing serious safety problems. As mentioned earlier, additional engineer-
ing fixes greatly increase costs while not correcting the basic problems.

Anv one of the four distinct adverse conditions at Hanford are sufficient reason not to go
ahead with site characterization at Hanford.

In addition to the four conditions mentioned above, we are concerned about USDOE's
general approach to site characterization. USDOE tends to ignore independent data gath-
ered by other professional organizations and it tends not to conduct early searches for
"fatal flaws" with the potential for site disqualification. Examples follow.

• In 1978 the Washington Public Power Supply System, not USDOE, contracted for
an acromagnetic survey of about 15,000 square miles, to support the NRC licens-
ing application for its Nuclear Project No.2 located on the Hanford Reservation.
This extended far beyond the Reservation in all directions and was a high-qual-
ity, high-resolution, state-of-the-art survey. It is part of the public record.
Using standard methods of mineral exploration, state scientists in 1985 inter-
preted the data and found that geologic faults mapped in surface outcrops were
clearly confirmed by the acromagnetic map. It was also found that these simple
linear features were easily extended into areas of alluvial sedimentary cover,

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763

and that these extensions are suggestive of a fairly dense faulting pattern in the
Mid-Columbia region. This is wholly consistent with other independent data
such as microcarthquakc epicenters and satellite photlineaments. At the reposi-
tory site they found a bounding fault pattern and supplied their maps to
USDOE. USDOE has the 1978 aeromagnetic survey, because it is referenced
("Weston 1978") in some of their documents, but to our knowledge has not used
it-at least no interpretation has been published. This is disconcerting for two
reasons: faults have the potential to be groundwater pathways and are critical to
repository performance; and the aeromagnetics rationalize the location of small
earthquake epicenters, which DOE treats as random events of little significance
to the repository. If these faults are present and active, then they are likely to
be open pathways to the environment.

Throughout the eleven years of site work on the Hanford Reservation, there has
been an inexplicable reluctance to drill specifically for the purpose of finding
faults and other "fatal flaws" with the potential for site disqualification. Many
deep holes have been drilled in and around the repository site for lithologic and
hydrologic testing, but virtually none for what in the mining and petroleum
industries is called "condemnation". Condemnation is the earliest possible dis-
covery of any adverse information which would lead to a management decision
to abandon a site and move on. Deep drilling is expensive, but its cost is trivial
compared to the $400 million already spent and the $1 billion projected for site
characterization. We view condemnation drilling as a prudent National invest-
ment, with the target of saving large amounts of time and money, plus freeing
limited DOE resources for work on other, more suitable sites. As a case in point:
In 1984 the state of Washington suggested informally that DOE drill beneath the
Hanford Reach, a straight segment of the Columbia River and the locus of a
concentrated microcarthquakc swarm known as the Wooded Island swarm. The
reasoning then was that the atypical N-S alignment of this 17-mile section is
consistent with a regional pattern of parallel structures seen in outcrop and on
satellite imagery, and that a fault here would be hydrologically very significant
to repository performance. Then in 1985 the aeromagnetic interpretation indi-
cated that in fact there was a potential fault under the Hanford Reach and that
the Wooded Island swarm was precisely located at a triple junction with NW and
NE structures intersecting the N-S structure. In our view active N-S faulting.
such as is present to the SW on the mapped Service anticline, is an important

764

part of the Hanford tectonic regime and should be a high priority target. DOE
apparently disagrees, as they show complete disinterest in the proposal to drill
there.

• Finally, we note another pattern in DOE's past work which is more difficult to
pin down, but which has potential significance for the near future. That is best
exemplified by the approach taken to subsurface geophysical methods, including
seismic reflection, gravity and magnetotelluric surveys. Some work has been
done, but in most cases the survey lines were extremely short and localized to
the repository site. To industry-trained professionals such work is essentially
wasted effort because the local data cannot be interpreted except against a
regional pattern. The DOE approach does not lead to conclusions. Its approach
does lead to more studies, more time, more money for "busy work".

Adequacy of the Five Sites

1. USDOE claims that all five of the sites nominated for the first repository are
quite adequate to be considered for characterization and that projected performance at
any of these sites will far exceed applicable EPA standards for release standards.

USDOE claims are overly optimistic and are a result of a USDOE management approach
based on competition among projects which were "grandfathered" into the Act.
Attachment #6 is a USDOE fact sheet titled "Management Changes in the Geologic
Repository Program". The following is a direct quote.

'The Nuclear Waste Policy Act (N]VPA) caused a fundamental change in the character of
the Geologic Repository Program. Prior to the NM'PA, the Geologic Repository Program
had many of the characteristics of a competition among three distinct projects, where
each was managed by a different project office located under a different DOE opera-
tions office. The program's strategy was that the repository would be built by the project
office that first produced a satisfactory site."

It is important to note that all five of the sites nominated for the first round were chosen
under a strategy which forced unrealistic schedules in order to produce a satisfactory,
rather than a superior site. Using this fast track management scheme, USDOE zeroed in
on the federally-owned sites in Washington and Nevada because purchasing land would
take too much time.

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765

In the case of the non-salt states of Washington and Nevada, the site selection process led
to less than adequate sites. For example, drafts of the Multiattribute Utility Report
clearly showed that post-closure performance at the non-salt sites could be significantly
worse than the base case reported in the document. A draft of the report stated:

"The results of sensitivity analyses strongly suggest that sites with lower expected post-
closure utilities also tend to have greater uncertainties in postclosure performance. This
range of uncertainty indicates little opportunity for the sites to improve, based on the
results of site characterization studies, beyond the best-estimate values. However, there is
considerable opportunity, especially for the non-salt sites, to retrogress, based on the
results of site characterization studies, below the best-estimate values".

Again, the USDOE scientists and their contractors recognized the uncertainties associated
with the non-salt sites and now, only ten months after the May 28th decisions, we are
already seeing results which show Hanford has retrogressed below the best-estimate
values. As mentioned earlier, there is clear and convincing evidence that the 10 CFR 60
groundwater travel times to accessible environment cannot be met at Hanford.

It must be remembered that the working USDOE scientists recognized the uncertainties
which indicated that Hanford postclosure performance could be significantly worse than
the base case. The decision to delete the relevant material from the drafts and to ignore
ranking were made by headquarters USDOE managers who remain on the job today.

2. If USDOE's contention is true, what do you think its implications are for site
selection?

Clearly, many USDOE scientists and their consultants do not agree with USDOE manage-
ment on this issue. If USDOE management's contention has some truth, USDOE should
not have to spend a billion dollars for characterizing Hanford, the most expensive, least
safe site. The implication would be that a repository could be sited just about anywhere
USDOE found it programmatically convenient. Nationwide, there would surely be many
more "adequate" sites which would meet NRC and EPA standards and be cheaper to char-
acterize than Hanford. In addition, characterization of such sites would result in fewer
injuries and fatalities than characterization at Hanford.

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77-lOA 0-87-25

766

"Fixing the Problem"

1. Suppose you could make a list of the things you'd want DOE to do differently
within the framework of the Act In considering the site in your state. Assume that if
DOE agrees to make the changes on the list, then you will cooperate in allowing site
characterization to proceed. Could such a list be drawn"?

It is not possible to make such a list because USDOE clearly acted outside the framework
of the NWPA by choosing the Hanford site and indefinitely postponing the second round
USDOE must implement the Act as Congress intended. Objective, scientific factors no^
fast track competition, must dictate the site selection process. Because of these faults and
the resultant lack of credibility. USDOE or its successor agency or commission, must be^in
again to select sites for characterization. Governor Gardner has proposed a process for
getting the program back on track. The Nuclear Waste Board passed Resolution 86-3
(Attachment #7) which describes and supports the Governor's proposal.

More important than a list of changes is a change in philosophy and management
approach toward repository siting. Past searches for repository sites have placed <oo little
emphasis on the hydrologic setting. We suggest the general approach outlined in the US
Geologic Survey Circular 903. "Disposal of High-Level Nuclear Waste Above the Water
Table in Arid Regions". This study dealt with geohydrologic factors and the final selec-
tion of sites for characterization would depend on other site selection guidelines.

USDOE or its successor agency must commit to characiexize only geohydrologically supe-
rior sites. In order for the public to accept a repository, the site must be more than "quite
adequate- and the site should not be expected to "retrogress" during site characterization.
This means that uncertainties must become a more important factor in site selection.
USDOE or its successor agency must be constantly looking for fatal flaws. Attachment #8
is a paper by William A. Brewer which proposes the principle of "condemnation" which is
fundamental in commercial exploration methods.

Not In My Backyard

1. Every state being considered for the repository knows several reasons why the
site should not have been chosen for characterization. What would be your response to
allegations that your objections are being raised only to avoid the location of a repository
in your state?

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767

The state of Washington backyard already contains the free world's largest accumulation
of radioactive waste produced as a result of defense programs. A large portion of this
accumulation is made up of liquid high-level wastes temporarily stored in tanks. Many of
these tanks have already leaked. The safe permanent disposal of these wastes is the high-
est priority for the next 400 generations of Washington State citizens.

The Nuclear Waste Policy Act, if implemented in a credible, scientific manner, provides a
blueprint to safe, permanent disposal. Governor Gardner and the Washington State
Nuclear Waste Board have stated that any acceptance of a repository at Hanford must
satisfy three conditions: (1) it must be demonstrated to our satisfaction that it is safe;
(2) it must be superior to any other site under consideration; and (3) it must be acceptable
to the citizens of Washington.

Washington State citizens may never become technical experts in the area of repository
safety, but they can easily determine if the process is conducted in an open, credible,
technically valid manner. Washington State citizens were shocked when on May 28th of
last year, USDOE ignored the rankings done by its own experts and consultants to select
the most costly and least safe site for characterization. In addition, the unilateral and
arbitrary decision to "indefinitely postpone" the site selection process for a second reposi-
tory was clearly in direct violation of the Nuclear Waste Policy Act. Citizen response was
swift and direct. In the November elections, 83% of the voters recognized a flawed pro-
cess and directed state officials to continue to take all possible steps to halt the USDOE's
unlawful implementation of the site selection process. Clearly, our backyard is already
contaminated. Our objections are raised against a flawed, politically motivated process.
We will continue to work toward open, credible, technically valid solutions.

Gardner Pronosal

1. What is your opinion of Governor Gardner's proposal for a non-binding con-
flict resolution process to develop a consensus on how to proceed with the program?
Would this solve the problems with the program as you see them?

Governor Gardner's proposal is a good faith attempt to get the program back on track.
Positive results can be achieved if USDOE acknowledges the seriousness of the problems
and supports and participates in consensus-building. If USDOE is not willing to cooper-
ate. Congress and other interested parties must take the initiative to develop a consensus
on the best approach so we can move ahead toward safe, permanent disposal.

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768

Need to Amend the Act

1. Are you asking Congress to amend the Nuclear Waste Policy Act to address the
Issues you raised in your testimony?

-- If so, could you describe your proposed amendments to the Act?

-- If not, how do you propose that the Department move forward with the
program?

As a result of USDOE's flawed implementation of the NWPA site selection process the
repository program is approaching a standstill. In our opinion, the process established in
the NWPA could have been successful if properly implemented. However, given the exist-
ing situation it appears that it will be necessary to revisit the Act. In order to do so in an
orderly fashion, we must attempt to reach a consensus among the interested and affected
parties as to resolutions of major issues. The major issues which must be resolved are the
following:

1. What is the most effective solution to the utility's short-term spent fuel storage
problem?

2. Is there a need for two repositories, and if so what is the appropriate timing as
to the second repository?

3. What are the necessary elements.of a repository site selection process which will
provide confidence that the search will be for the best site and that selection
decisions will be based on credible scientific evidence?

All of these issues are inextricably interrelated. These issues must all be resolved together
as part of a package in order to develop a credible solution to the nation's high-level
nuclear disposal problem. There arc no "quick fixes" which can restore credibility to the
current site selection process.

In order to develop a workable solution, a serious effort must be made to reach a consen-
sus among the various interested and affected parties. We have proposed a course of
action to USDOE. If USDOE is unwilling or unable to follow that proposed course of
action, we hopeful that Congress will see the merit and the need to establish a forum and
a process designed to reach a consensus solution to this national problem.

-14-

769

Economic Benefits

1. \Vhat economic (or other) benefits are there for your state or tribe if your site
is chosen for the repository?

2. What discussions have you had with DOE about economic benefits?

3. Would more serious discussion of potential economic benefits, for both the
period of site characterization and construction, increase your state's willingness to go
along?

As stated earlier geohydrologic, safety, health, and the environment are the preeminent
state of Washington concerns. A contract for socioeconomic impact studies is in the
development stage. The studies, which are required under the Act, will be the vehicle
used to determine positive and negative impacts of a repository.

The state of Washington has not had discussions with USDOE concerning economic bene-
fits or incentives. Such subjects should be on the table during consensus-building sessions.

More serious discussions of economic benefits must also include serious discussions of the
risks and negative economic impacts of a repository. Affected states and tribes need cred-
ible information on the total equation before they can determine "willingness". Now we
only have vague, undefined information concerning the benefits side of the equation. For
example, it is well known that characterization of the Hanford site will exceed a billion
dollars. We do not know what percentage of the budget will be spent within the state of
Washington. It is our understanding that only a small percentage of the budget will actu-
ally be spent in our state.

We have not yet started to collect information concerning the negative impacts side of the
equation. USDOE has recently indicated that much of the impact information gathering
should be delayed two years to coincide with HIS scoping. This means credible informa-
tion on the total equation will be further delayed.

It may be that economic incentives would be useful in the final selection among sites on a
list of safe, qualified sites. The current selection process has not been conducted in a
credible manner. Discussion of economic incentives prior to a proper selection process
may result in a repository which does not function as intended; what is needed first is a
valid ranking process, implemented to select the safest sites to solve this national problem.

-15-

770

STATE OF WASHINGTON

OFFICE OF T>« GOVERHOR

OLYMPIA

Be£04-04I3

BOOTH GARDNER

January 27, 1987

Ben C. Ruschc, Director
Office of Civilian Radioactive
Waste Management
US. Department of Energy
1000 Independence Avenue
Washington, D.C. 20585

Dear Mr. Rusche:

Enclosed is the state of Washington report to Congress concerning consulta-
tion and cooperation negotiations with the US. Department of Energy. I
understand you will soon be transmitting this report to Congress along with
your report

Please contact Curt Eschels or Terry Husseman if you have any questions
ibout this report.

Sincere!

Bo\th Gardner
Governor

Enclosure

L*9i»Ut*ve BuWmo AS 13 • Oympia. Washington 96504 • (206) 7S>€780 • (Sctn) 234-6780

771

STATE or UASHINGTON

Report to CoDgrtss

CoDcernlos Coosultatton and Cooptratioa Negotiations with the

U.S. Departmeot of Energy

January 1987

The state or Washington report to Congress Cooccniing Consultation and Cooperation
Negotiations with the VS. Department of Energy (USDOE) will review past actions, assess
the current situation, and summarize the reasons why agreements bave sot been
concluded.

PAST ACTIONS: From July 1983 until December 1984, the state of Washington and
USDOE made a good faith effort to negotiate. In spite of many Song negoTiating sessions,
the parties were unable to resolve many terious issues such as federal liability, defense
waste, water rights, foreign waste, transporution, work suspension, emergency response
planning and other issues. The state became convinced that the C£C process was not
effective when two Section 117(b) Governor's letters obtained positive results in the areas
of defense waste and water rights, even though the subjects Lad been subjects of intense
negotiations for eighteen months.

From December 1984 until May 1986, the state of Washington and USDOE were heavily
involved int he Environmental Assessment process. Governor Gardner asked that USDOE
do a credible comparative analysis with input from states, tribes xnd independent experts.
The May 28 decision to include Hanford as one of the three sites selected for
characterization even though it ranked lowest of £ll sites under consideration, and the
illegal decision to indefinitely postpone the search for i second repository led litigation
and the overwhelming ratification of Referendum 40 which directs state officials to
continue challenges to the federal site selection process.

V^TfY AGREEWENTS HAVE NOT BEEN CONCLUDEP: Agreements have not been
concluded because past ncsotiations were not effective and because the May 28th
decisions have destroyed USDOE't credibility. C&C eecotiations cannot be successful
until credibility is restored. USDOE most take the kad in bring tbe program back oa
track. Governor Gardner's conflict resolution process is a reasonable, attainable proposal
which could lead to a cid-course correction consistent vith the Nuclear Waste Policy Act

772

STATE OF WASHINGTON
Consultation and Cooperation (C&C) Chronology

July 1983: Negotiations bcgat» because construction of the exploratory shaft appeared
imminent. From July 1983 to July 1984 there were twelve negotiating sessions with
USDOE and twenty-one state negotiating team meetings.

Pecember 1983: An earJy draft document was prepared and forwarded to the Nuclear
Waste Board and the Legislature for review and comment The Legislature passed
Concurrent Resolution 142 which directed the negotiating team to place more emphasis on
issues relating to foreign waste, work suspension, injunctive relief, federal liability, com-
mingling defense wastes, emergency response planning. The Legislature passed a bill
whi^h provides specific procedures for negotiating, reviewing, approving and modifying
agreements.

July 1984; Another preliminary draft document was forwarded to the Nuclear Waste
Board. The Board considered using the document for public hearings, but many unre-
solved issues and the December 1984 release of draft Environmental Assessments put an
indefinite bold on further review.

March 1985: Governor Gardner wrote Section 117 30-day letters to Secretary Hcrrington
concerning defense waste and state water right laws and permit requirements for site
characterization activities. Although the C&C teams had been unable to resolve these
issues after nearly two years of negotiations, the Secretary's responses to Governor
Gardner documented significant changes to earlier USDOE negotiating positions.

Jolv 1986: Detloff von ^interfeldt, 8 nationally respected decision analyst who had been
a consultant to the National Academy of Sciences (NAS) Board on Radioactive Waste
Management, expressed serious concerns about the value judgments used by USDOE to
make its decisions.

-I-

773

August 1986: Lcc Olson, Richland Operations Office, wrote to Terry Husscman, Program
Director, asked for t joint CScC meeting with other states and the tribes. Mr. Husscman's
response questioned the need for joint meetings and suggested USDOE decision making be
the first issue to be discussed.

November 1986: Ralph L. Keeney, a nationally respected decision analyst who had been a
USDOE consultant during EA negotiations, issued a report which confirmed that Hanford
is the least desirable site because of its enormously greater costs and its greater health
effects arc not compensated for its relatively slight advantage in environmental and
socioeconomic impacts.

^oYcmber 1986: Washington State citizens, in unprecedented numbers, support Referen-
dum 40, vhich directs state officials to continue challenges to the site selection process.

December 1986: Eco Northwest, a consultant to the Nuclear Waste Board,-concludcd that
the Recommendation Report fails to document its assumptions or its conclusions, and is a
travesty of nearly everything that decision-aiding methods stands for.

December 1986: USDOE, in a letter to Governor Gardner, renewed the offer to negotiate.
Governor Gardner and Ben Rusche met on December 18 to discuss C&C negotiations. In a
December 30 response to the Office, Governor Gardner indicated that past actions and
continuing litigation have created a situation where C&C negotiations, at this time, are
not a reasonable option. He pointed out that negotiations cannot be successful antil pro-
gram credibility is restored, and that USDOE must take the lead in bringing the program
back on track. He enclosed his proposal for a conflict resolution process which could
restore credibility to the program. He asked Secretary Herrington to review and seriously
consider the proposal.

-2-

774

STATE OF W/kSHNCTON

NUCLEAR WASTE BOARD

Mail Stop PV-11 • Olympia. Wa^ington 98504 • (20(>) 459^70
February 6, 1987

Benard Rusche
U^. Department of Energy
1000 Indepcijdcnce Avenue
Washington, D.C. 20585

Dear Mr. Rusche:

On January 28, 1987, you submitted a draft amendment to the KGssion Plan to Govemcr
Gardner and the state of Washington for review prior to formal transmittal to Congress.
In your submittal letter you indicated we would be allowed a 60-day comment period.
Eecause we have not had timely and complete information regarding determinations or
plans 'vith respect to design of the BWIP exploratory shaft, I now respvtfuHy request
such information so the state of Washington can make timely comments on the draft
amendment to the Mission Plan.

I request specific information on the design basis for your decision to change the size of
the second BWIP exploratory shaft from an inside finished diameter of 6 feet to an inside
diameter of 10 to 12 feet. We need the specific reports and memos you and your man-
agers used to make the decision that a larger shaft is needed. Specifically, we need to
know if inputs to the design, such as the concentrations of dissolved gases, have changed.
We also request the statements of work for all studies relating to the change in shaft size.

When we receive the information, we will review it to ensure your decision is consistent
with provisions of the Nuclear Waste Policy Act (NWPA) which limits site characteriza-
tion activities to those necessary to provide the data required for evaluation of the suit-
ability of the site for an application for a construction authorization. The most cost
effective use of the shafts in the operating repository is not consistent with that NWTA
provision.

I look forward to a timely receipt of the information so the state of Washington can con-
duct an adequate review of the draft amendment to the Mission Plan.

Sincerely,

Waricn A. Bishop, Chair

WAB/DP:hlt

cc Mike Lawrence
John Anttonen

775

ASDRiA BiKn\ RMkIR
Drrocv

S7A71 Of VkASHSCTON

DEPARTMEhJT OF ECOLCXiY

MtiUopPV-11 • Ofyirpii, Wtihrgton 9eS0*^11 • POS) A5»iOOO
December 10. I9S6

John R Anttonen, Assistant Manager.
Commercial Nuclear Waste
Ricbland Operations Office
P.O. Box 550
Richland. WA 99352

Dear Mr. Anttonen:

Copies of the US. Department of Energy's (USDOE) working draft Environmental
Monitoring end Mitlsation Plan (EMM?) and Socioeconomic Monitoring and Mitigation
(SMMP) for the Hanford Site Basalt Vaste IsoIiUon Project arrived on December 2. 1986.
The material was delayed because it was sent to the vrong address.

The EMMP and SMMP are intended to describe the steps USDOE wHl take to miu'gate the
impacts of site characterization. We certainly can not provide meaaingful comment on
the impacts of xite characterization until ve kave an opportonity to review the Site
Characterization Plan (SCP). As yoo know, «e kave BOt been allowed to see any of the
early drafts of the SCP which you are bo«^ working on.

The Nuclear Waste Policy Act consultation provisions reqaire the Secretary of Energy to
provide timely and complete information regarding determinations or plans made with
respect to site characterization. The cooperation aspect of the Act envisions that USDOE
would Bt least consider oor comments before charging ahead with documents such as the
EMM? end SMMP. The following are examples of ov frostration.

On May 8, 19S6, the Environmental Coordinating Group net in tie Forrestal Building
to review the EMMP annotated ontline. The first state of Washington comment had
to do with the absence of quality tssurence in the outline. We were assured this
oversight would be corrected. The oversight has not been corrected in the working
draft

Another item of discussion was the seed to know the amounts and locations of exist-
ing wastes already in the Hanford enviivsment. The rationale is that site characteri-
zation Bctivities at Hanford will farther spread the dsemical and radionuclide con-
tamination. This is a major environmental impact during site characterization at
Hanford and the amounts and location of the contaminants must be included in the
EMM?. The lAfomation is not included ia the working draft even though the
request «-as coafirsed io writing.

776

December 10, 1986
P>ge2

On May 8. 1986. i USDOE/NRC/States/Tri'bes laceUag was held on level of detiil in
the SCP. One or the results of the meeticK vis i commitment by USDOE to provide
• IS to 20 page document which describes on-going investigations and tests, describes
the rationale for s-ich work, shows how the tests tie into other documents, and a list
or pitiined tests. We have not received this docuaent

l>uring the Aogust 12 and 13. 1986 qcarterly DSDOE/States/Tribes meeting, USDOE
figain promised to provide the foregoing information to the state of Washington.
During the September 10 ECG meeting in Washington. D.C» it was reported that a
draft of the document was ct USDOE beadQuarteis being reviewed for style and coa-
tcBL The state of Washington representative strongly expressed the need to have the
document available before the working draft EMMP was issued.

On October 31, 1986. Governor Gardner formally requested, pursuant to
Section 177(a) of the NWPA, "timely and complete information regarding determina*
tion or plans made with respect to the site diaracterizatioa ... of such repository.'
Oa November 23, we received Ben Rusche'k response which stated *la final reply will
be sent to yoo within 3 weeks.* We still have sot receiveid a reply.

Yon will note that we will oot receive a reply to the Governor's letter until well into
the review period of the working draft EMMP. We seed to know deuiled informa-
tion about site characterization activities before «e can begin review of the working
draft EMMP. Your commitment to provide draft material on EMMP as early as pos-
sible is of little value unless and until yonr other commitments concerning quality
assurance, site contamination, and site chxiacterization information are mcL

It is clear that we are enable to review the worfclsg draft EMMP until the earlier USDOE
commitments are met We agree that EMMP and SMMP are only one part of the USDOE
field program at Kanford and the consulution and cooperation components of the KWPA
require you to also provide timely information cm all c^>ects of the program.

I would t; happy to meet with you or your designee after we receive the earlier promised
information so we can discuss a reasonable review period.

Sincerely,

Terry HussejBan, Director

Office of NKlear Waste Management

TH/DP-Jcc

777

,\^KRl^,^ aSHOP

C»«ir

STATE OF WASHINGTON

NUCLfAR WASTE BOARD

Mjil Stop PV-11 • Olympi3, W3ihington 98504 • ^206; 459-6670
March 30. 1987

Bcnard C. Rusche, Director
Office of Civilian Radioactive

Waste Management
VS. Department of Energy
Mail Stop RW-43
Washington. D.C. 20585

Dear Mr. Rusche:

In early December we received working copies of the US. Department of Energy's
(USDOE) working draft Environmental Monitoring and Mitigation Plan (EMMP) and
Socioeconomic Monitoring and Mitigation Plan (SMMP) for the Basalt Waste Isolation
Project (BWIP). On December 10. Terry Husseman called Mr. Anttonen and wrote a letter
to him which indicated we were unable to review the EMMP until earlier USDOE commit-
ments are met. We have not as yet received information concerning quality assurance and
the amounts and locations of existing contamination in the Hanford environments. BWIP
personnel and their contractor did attempt to include the requested information in an
early Project Office draft, but we understand that the requested information was deleted
during a headquarters review. As a result, we are unable to adequately review the
documents.

The following documents are submitted as Washington State Nuclear Waste Board prelimi-
nary but incomplete comments on the working draft EMMP and SMMP.

1. December 10, 1986 letter to John Anttonen from Terry Husseman.

2. The February 27 comments of the Washington State Legislature members of the
Environmental Monitoring Committee. (Endorsed by the Nuclear Waste Board
during its March 20 meeting.)

3. The February 27 comments of the Socioeconomic Committee.

We are sending our comments directly to you because we understand that Office of
Civilian Radioactive Waste Management decisions resulted in the deletion of our
requested information from early Project Office drafts. We again request this informa-
tion.

Sincerely,

Warren A. Bishop. Chair /

Nuclear Waste Board

WAB/DP±lt

Attachment

cc John Anttonen, BWIP
Steve Whitfield. BWIP

778

STATE Of WASH1NC7TON

NUCLEAR WASTE BOARD

Mail Slop PV-11 • Ofyrrpu. Washington 98504 • (206; 459-6670
February 6, 1987

Bcnard Rusche
VS. Department of Energy
1000 Independence Avenue
Washington, D.C. 20585

Dear Mr. Rusche:

On January 28, 1987, you submitted a draft amendment to the Mission Plan to Governor
Gardner and the state of Washington for review prior to formal transmittal to Congress.
In your submittal letter you indicated we would be allowed a 60-day comment period.
Because we have not had timely and complete information regarding determinations or
plans with respect to design of the BWIP exploratory shaft, I now respectfully request
such information %o the state of Washington can make timely comments on the draft
amendment to the Mission Plan.

I request specific information on the design basis for your decision to change the size of
the second BVilP exploratory shaft from an inside finished diameter of 6 feet to an inside
diameter of 10 to 12 feet. We need the specific reports and memos you and your man-
agers used to make the decision that a larger shaft is needed. Specifically, we need to
know if inputs to the design, such as the concentrations of dissolved gases, have changed.
We also request the statements of work for all studies relating to the change in shaft size.

When we receive the information, we will review it to ensure your decision is consistent
with provisions of the Nuclear Waste Policy Act (NWPA) which limits site characteriza-
tion activities to those necessary to provide the data required for evaluation of the suit-
cbility of the site for an application for a construction authorization. The most cost
effective use of the shafts in the operating repository is not consistent with that N^ftTA
provision.

1 look forward to a timely receipt of the information so the state of Washington can con-
duct an adequate review of the draft amendment to the Mission Plan.

Sincerely,

Warren A. Bishop, Chair ij

WAB/DP;hlt

cc: Mike Lawrence
John Anttonen

779

WASHINGTON STATE NUCLEAR HASTE BOARD

RESOLOTION 86-3

June 20, 1986

WHEREAS, on Kay 28, 1986,- the U.S. Departnent of Energy (USDOE)
announced that it had selected Hanford for site characterization;

WHEREAS, on Kay 28, 1986, USDOE also announced that it had post-
poned indefinitely site specific work for a second repository;

WHEREAS, the USDOE unilateral decision to indefinitely postpone
the second-round site selection process was a political decision
which showed disregard for the Nuclear Waste Policy Act;

WHEREAS, in selecting Hanford for characterization, USDOE ignored
the results of the National Academy of Sciences ranking metho-
dology which indicated the Hanford site is the most costly and
least safe site of the five sites under consideration; and

WHEREAS, on June 16, Governor Gardner, in testimony before ;
Congress, stated that it will be impossible to locate a repository
anywhere if decisions are based on politics rather than science.

NOW, THEREFORE, BE IT RESOLVED that the Washington State Nuclear
Waste Board supports the efforts of Governor Gardner, Congressman
Korrison and Congressman Swift, and others to:

1. Bring the repository site selection process to em
immediate halt;

2. Restructure the site selection process to ensure inde-
pendent technical groups are included in the decision
making process;

3. Combine the first and second roxind states and conduct a
nationwide search for the safest repository;

4. Eliminate unrealistic deadlines;

780

5. Require an independent study of the need for a second
repository as opposed to expanding a single repository;
and

6. Authorize construction of am MRS facility and require its
completion at am early date.

The Nuclear Waste Board directs the Chair to transmit this Reso-
lution to the President of the United States, the Secreteury of
Energy, amd the state of Washington Congressional delegation.

Approved at Olympia this ^1P^ day of V>/^^.^^vt.t- — , 1986.

WARREN A. BISHOP, CHAIR
WASHINGTON STATE
NUCLEAR WASTE BOARG

781

TESTIMONY OF

GOVEK^JOR BOOTH GARDNER

STATE OF WASHnCGTON

SENATE SUBCCM-HTTEE ON ENERGY RESEARCH AJZ) DEVELOK-ENT

JUNE 16, 1986

782

In January of 1985, when I became Governor, one of the first challenges
presented to ire was the State's reaction to the possibility that Washington
could becoDe a home for the Nation's high level nuclear waste.

We in Washington State approached the likelihood differently than my
counterparts in other states.

We didn't say, "Hell no, not in ny backyard." Instead we took the
responsible tack that there must be an answer for the high level nuclear waste
problem.

The keys to our participation in the process were two criteria:

1. The decision would be made based on science. Ihe safest, and
only the safest, site would be selected, and politics would not be
part of the process.

2. DOE was to follow the rules established in the Nuclear Waste Policy
Act. ^

It is disappointing that I must report to you that we believe both those
conditions for our support have been violated by DOE.

Tne elimination of the second round site selection process violates the
Nuclear Waste Policy Act, succumbs to politics, and tells us that instead of
searching for the safest national location, EXE is limiting the search to the
Vfestern United States. ' " " — • -

Now, let's ta3k politics. Everyone knew what a delicate process it would
be to locate a repository and the fear, in Congress, was that it would be
iirpossible if the decision was to be made based on political clout.

That's why it was agreed that science must be the driving factor. As a
part of the delicate compromise that allowed the passage of this act in the
first place, it was determined that there must be two rounds for siting the
repository. Now DOE has flagrantly violated the compromise made by Congress.

VJhat is the result of DOE's failure to li\^ by the rules?

To put it in sinple terms: If the federal goverrcnent won't play by the
rules, we will see you in court. The future of a repository will be tangled
in the nation's court system for years to car.e.

I believe that our case is good enough that we will seriously delay the
process, and probably prevail. The result is, 10 or 15 years down the line,
the government will have invested a fortune arc: will find itself right back at
step one.

783

Lawsuits are a negative solution. I also have a positive solution:

1. Bring the repository site selection process to an innediate tenporary
halt. Stop-work orders are already in effect in Washington and Nevada
due to quality assurance problen^s, and no work has been started in
Texas. Therefore, the iinmediate effects of such action would be
minimal.

2. Restructure the site selection process.

a. Establish a significant role in the decision-making process
for independent technical groups such as USGS and MAS. We must
get the scientists directly involved and remove politics from
the decision-making process.

b. Combine the first and second rounds and conduct a nationwide
search for the safest repository.

c. Eliminate specific statutory deadlines which alirost everyone
acknov;ledges cannot be met.

3. Restart the site selection process.

4. Require an independent study of the need for a second repository, as
opposed to expanding the capacity of the single repository.

5. Authorize construction of an Mo facility and require its
completion at an early date.

What is unique about this plan? V.'e aren't saying, "Take 'Washington out of
consideration." If DOE can show us that v.-s should be in the characterization
process, based on appropriate ranking meth.odology and based on an open and
fair assessment of all potential ^ites, ar.d ultimately if we are the safest
site, then maybe vre should be a repository- site.

But, I can assure you of one thing: If DOE fails to follow a process that
selects only the safest site and then it tries to locate the repository at
Hanford, it can expect one hell of a fight — a fight the people of Washington
do not intend to lose.

784

RESPONSES TO QUESTIONS POSED BY SENATOR BENNETT JOHNSTON

STATE-DOE COOPERATION

1- Do you believe that your State has made a oood faith effort

to cooperate with the Department of Energy? Describe the

contacts with DOE that you initiated. VThat were the

results?

States and tribes, on the other hand, view "consultation and
cooperation" as a requirement for a more collaborative approach
to program decision-making in areas where states/tribes have

-1-

785

Generally speaking, contacts with DOE, which are initiated
by Nevada, seek information or propose technical study by U.S.

-2-

786

DOE or state contract personnel. Also generally, DOE's response
is invariably very slow, overly analytic, bureaucratic, negative
and frustrating to State efforts to participate.

An example of contacts initiated by the State is Nevada's
repeated request in 1985-1986 to be made aware of the method by
which DOE would decide which five of nine sites would be
nominated and which three of five states would be chosen for
characterization. This request was made orally 'and in writing to
various individuals including William Purcell, OCRWM Director of
the Office of Geologic Repositories, and OCRWM Director Ben
Rusche. DOE refused to disclose the method until after site
selection decisions were announced.

Another example of state-initiated contacts involved the
Nevada Commission on Nuclear Projects' invitation to Mr. Ben
Rusche to address the Commission on May 16, 1986. Mr. Rusche
arrived in Las Vegas at 11:00 a.m., addressed the Commission and
departed the meeting by 12:00 noon. He took no time to listen to
citizen concerns which were scheduled to be heard later that
afternoon. Chairman Sawyer asked Mr. Rusche specifically at that
meeting what the decision methodology would be for site
recommendation and whether Nevadans were accurate in assessing
that Yucca Mountain had already been chosen. Mr. Rusche refused
to divulge the decision methodology and stated that no decision
had as of then been made selecting Yucca Mountain. In
retrospect, it now appears that statement was false. The final
action announcing the formal decision was made May 28, 1986, only
twelve days later. Mr. Rusche 's subterfuge prohibited any state
participation in that decision. Finally, please recall that the
requirement of the NWPA is that DOE cooperate with the state, not

-3-

787

Nevada has commented in nearly every instance in which DOE
has provided the opportunity. In the case of Nevada's comments
on DOK's Draft Environmental Assessment, DOE essentially ignored
over 800 pages of Nevada's suggestions. In a prior major
interaction experience, the development of siting guidelines, DOE
refused to consider the objective approach Nevada recommended,
and which we believe the Act requires.
2. Do you believe that the DOE has made a good faith effort to

cooperate wich your State? Describe the contacts with you

that were initiated by DOE. In these cases, what were the

results?

Response ; DOE's effort to cooperate with Nevada cannot be
regarded as having been made in "good faith". Rather it has been
perfunctory. DOE's ordinary method is to develop a position or
procedure in advance, then inform the State of its decision. DOE
has held many meetings where it provides states with information
about policies and decisions, and then records these dates in a
cumulative list purporting to indicate DOE's level of
cooperation. DOE has never brought real agency decision makers
to Carson City and to sit down with Nevada personnel and discuss,
in. advance, the philosophy and approach of any particular
decision.

An example of DOE's attempts to cooperate with states oii'
issues of considerable importance to those states involves DOE's

-4-

788

invitation for states and tribes to participate in various
issue-specific "coordination groups." Nevada (and other states)
learned in 1985 that DOE was holding regular coordination group
meetings for socioeconomic issues, transportation issues,
environmental issues and quality assurance issues. These
meetings were initiated by DOE as planning and decision-making
sessions to be attended by DOE staff (Headquarters and Project
Office) and contractors working on specific aspects of the
high-level nuclear waste program. After considerable prodding,
DOE invited affected states and tribes to attend these meetings,
ostensibly to provide a forum where states/tribes and the
Department could work cooperatively in a "hands-on" manner, to
address common interests in the areas of socioeconomics,
transportation, environmental assessment and quality assurance.
The concept appeared to be a promising one. However, from
the time states/tribes began attending meetings, the format and
content of those meetings was changed. Instead of being forums
where states/tribes and DOE worked cooperatively to arrive at
mutually acceptable approaches and decisions, the meetings have
become sessions where DOE makes presentations and where state's
concerns are taken down as "action items" for DOE review at
future times. No DOE decision makers are present so no real work
gets accomplished. Rather than meaningful joint working
sessions, the coordination group meetings have become,
essentially, DOE show-and-tell forums.

Nevada has repeatedly sought participation in DOE
socioeconomic and environmental monitoring and mitigation plans.
State and local representatives met on several occasions with
DOE/Nevada staff and contractors and provided DOE with issues and

-5-

789

factors to be considered in the plans. When these contacts first
began, DOE/Nevada promised that State and local concerns would be
given full consideration and that the monitoring and mitigation
plans would be developed cooperatively with state and local
representatives. DOE Headquarters' directives during the summer
and fall of 1986, however, prohibited the DOE/Nevada office from
fulfilling that commitment and even prohibited DOE staff and
contractors in Nevada from meeting with State or local officials
until after November of 1986. As a result of this DOE policy of
total non-cooperation, not one of the State/local issues was
addressed in the draft monitoring and mitigation plans released
in late November 1986.

Nevada believes that the Nuclear Waste Policy Act clearly
requires DOE to consult and cooperate with the State, and that
the burden of effectuating such consultation and cooperation
rests with the Department. In this regard, DOE must ask the
State's opinion on various programmatic matters and then give
such opinion serious consideration. This has not happened in the
program to date.

SITE-SPECIFIC TECHNICAL ISSUES
1- Wha^ do you consider the most imDortant t-Pchnin;:>i ,

scientific or enoineerina reasons whv your site is

inappropriate for a repository? Pn you believe that DOR i .■=;

ignprinq scientific information about these matters? What

information?

Response; Concerns about the technical adequacy of the
proposed Yucca Mountain repository site in southern Nevada have
been around for a number of years. Questions from the scientific
community have centered on the high potential for technical flaws

-6-

790

at the site given the active nature of the geologic environment
in Nevada.

The National Academy of Sciences (NAS) first expressed
concerns about technical factors in 1979 in correspondence to
the Department of Energy (letter from E.F. Gloyna to S. Meyers,
dated April 23, 1979). In early 1979, DOE came to the NAS -
Committee on Radioactive Waste Management and requested the
Committee's preliminary views on the potential of tuff,
particularly in southern Nevada, as a repository host rock. In
the April 23rd letter, the NAS, while admitting the long and deep
groundwater flow paths, low-water velocities, low population, and
extensive federal land ownership were attractive attributes,
identified potential difficulties associated with tuff as a
medium for radioactive waste isolation. These potential
difficulties, considered fundamental by the NAS, focused on the
seismic and volcanic stability of candidate areas of tuff, the
significant lateral variations in thickness and character of
tuff, the fact that tuff terrains are typically broken by faults
into blocks of varying size, the stability of tuff in the
presence of hot electrolyte solutions, and the possible presence
of natural resources. In concluding the letter, the NAS
suggested that "explorations and investigations be conducted in a
logical sequence so as to assure that certain fundamental
questions are addressed first before maior resources are
committed . " (Emphasis supplied).

-7-

791

1. Characterization of moisture movement through the
unsaturated zone.

2. The relationship of Yucca Mountain groundwater regime to the
regional acquifer system.

3. The effect of future climatic variations and resulting
changes in the hydrogeologic regime on the integrity of the
site.

4. The effects of future faulting or other tectonic events on
the integrity of the site.

5. The effects of future volcanism on the integrity of the
site.

6. Human interference of the site due to perceived presence of
extractable natural resources.

Site performance issues include:

1. Groundwater travel time to the accessible environment.

2. The effect of host rock geochemistry on the retardation of
radionuclide transport.

3. The effect of fuel cladding, waste canister materials, and

-8-

792

backfill in preventing or restricting radionuclide
transport.

4. The uncertainty in projecting performance assessments to the
1,000 and 10,000 year time periods.

5. Maintenance of waste canister retr ievability option.

6. The design and reliability of a long-term repository
monitoring network.

1. The maximum expected radionuclide release rate from the
engineered system.

The DOE Siting Guidelines for nuclear waste repositories
indicate that a site should be disqualified if fault
movement and other ground motion would result in loss of
waste isolation. The Draft EA acknowledged that Yucca
Mountain is in a tectonically-active area and the faults on
Yucca Mountain may be "potentially active," but indicated
these present no problems for siting a repository at Yucca
Mountain. However, the State found that a reasonable
interpretation of the available information suggested that a
large earthquake with accompanying surface faulting could
probably occur during the lifetime of the facility, with the
possibility of loss of repository integrity.

-9-

793

(2) Geohydrology

-10-

794

be satisfied without documentation from the Department of
Defense that future atomic testing would not conflict with a
waste repository at Yucca Mountain.
(4) Water Quantity and Quality

-11-

795

The same letter report contains nine major comments
authored by NRC staff. Three of the comments address faulting at
or near Yucca Mountain. NRC staff contends that literature
evidence suggests that faults in the vicinity of Yucca Mountain
should be considered to be potentially active. The high state of
stress measured on Yucca Mountain suggests that north-south
trending faults could be reactivated by nuclear weapons tests.
Further, the omission of a comprehensive discussion of
northeast-trending strike-slip faults reflects an inadequate
recognition of the current uncertainties regarding the nature and
rates of fault movement. Also the EA failed to acknowledge U.S.
Geological Survey literature which suggests that detachment
faulting may be a much more important element in the tectonic
setting of Yucca Mountain than previously believed.

-12-

796

Concern was also expressed by NRC that, because the
ability of the geochemical system to effectively retard
radionuclide migration was highly speculative, it is not
unreasonable to assume significant increases in 'radionuclide
transport to the accessible environment due to change in climate
or geohydrologic conditions.

NRC likewise questioned the two mechanisms — matrix
diffusion and sorption — which would diminish radionuclide
releases to the accessible environment and suggest that colloids

-13-

797

In summary, the State of Nevada is in agreement with
both the National Academy of Sciences and the Nuclear Regulatory
Commission staff relative to concern with the technical adequacy
of the Yucca Mountain. Technical flaws appear to be present at
the site. These include the occurrence of active earthquake
faults at the site, the potential for recurrent volcanic activity
within the engineered life of the repository; the potential for
significant economic natural resources beneath the mountain;
possible adverse affects on repository performance from nearby
nuclear weapons tests; and uncertainty about the site's ability
to meet the 1,000-year groundwater travel time mandated by the
EPA. In the past, the State has attempted to assess the validity
of these suspected technical flaws by proposing to perform
independent technical studies. Even after the U.S. Ninth Circuit
Court of Appeals concluded that the State was entitled to perform
such studies as part of its lawful oversight role, DOE has

-14-

798

1- DOE Claims that an five of <->^^ ^]^^_s nominatPd f^r th"
first repository are quite adequate to he considered for
ch9r9Cteri?;ation and that the nroiected pprfr^ypi^ n^ of any
of these sites will far exceed aPDlicahle EPA ■:;tand3rds for
releases of radioactivity. Isn't this true?
Response: Nevada has no confidence in DOE's claim that all
five sites nominated for the first repository are adequate based
on "projected performance" of EPA off-site release standards.
First, EPA staff has itself admitted that the proposed EPA
standard was tested against what was then known about the Hanford
site, that the proposed standard was discovered to disqualify
Hanford, and that the standard was thereafter altered (made more
lenient) so as to permit Hanford 's further consideration.
Further, the definition of the interior limits of the
geographical area to which the standard would be applied were
modified to permit DOE to define the "disturbed", or pollutable,
area in an amoeba-like or gerrymandered way, permitting extension
of interior limits in favor of easier DOE compliance.
Additionally, DOE's conclusion with respect to respective sites'
performance in relation to the EPA standards was made through the
application of DOE's site selection guidelines, which are
subjective. A different analyst could easily reach a different
conclusion using the same data and the same guidelines.

-15-

799

Specifically with respect to Yucca Mountain, NRC staff
has criticized DOE's disregard of active faulting, hydro-thermal
activity, the presence of ore deposits at the site, and DOE's
over reliance on geochemical retardation, groundwater travel ti
modeling and an engineered barrier system performance in
analyzing the site. DOE's conclusion with regard to the EPA
release standard is not well based and is self serving.
2. If DOE's contention is true, what do you think its
implications are for site selection?

1. Suppose you could make a list of the things you'd want DOE
to do different] y within the framework of the Act in
considering the site in your State. Assume that if DOB
agrees to make the changes indicated on the list, then you
win cooperate in allowing site characterization to proceed
Could such a list be drawn? Or do you just want vour site
dropped from consideration? If such a list could be drawn.
what would be on it?

Response; Nevada believes that the solution to the current
problems facing the nuclear waste disposal program lies, simply,
in a return to the letter and intent of the Nuclear Waste Policy
Act. DOE must be forced to implement the Act as Congress
originally intended. While specific deadlines in the Act may no

-16-

800

A list of things Nevada would want DOE to do differently,
though not exhaustive, would include the following:

2. From that definition, determine the technical
parameters of natural hydrologic, geologic, tectonic,
geochemical, and seismic systems which would act as a substitute
for all of the engineered system. Reduce the technical
parameters to quantitative terms and promulgate them as new site
selection guidelines. (Retain the current economic, social and
political parameters required by Section 112(a). of the NWPA and
discard the rest of the current guidelines.) Incorporate within
these new guidelines the premise that no site or location is
considered suitable until there is evidence which proves that to
be the case.

3. Screen the nation's geology for sites likely to possess
quantitatively adequate technical parameters without first

-17-

801

considering the socio-political issues of ease of siting or land
ownership.

4. Define the safety and health risks of transportation of
spent fuel over specific routes.

5. Balance the known information about the technical
parameters of each site against the safety and health risks of
utilizing those sites and the transportation of spent fuel
thereto.

7. Throughout site screening and analysis, (characteriza-
tion) commencing with systems design, incorporate state and local
knowledge of the respective geology. Discover how best to
analyze it. Design the research system so that it asks open
ended questions and is really inquisitive in nature. Attempt to
resolve technical questions about which state and local technical
professionals are concerned using the investigative approach or
methodology which such professionals believe will resolve thgjr
questions. Manage the site screening and characterizations
program as close to the site as possible, but integrate this
management by means of a single system engineering contractor.
Grant on site management personnel the authority to commit and
make decisions regarding the program when state or local
technical professionals need specific commitments/decisions.

-18-

802

8. Don't hurry against an uncompromising schedule which
thereafter becomes compromised at the whim of the program's
administrator .

9. Listen to and heed comments and suggestions offered
from others.

10. Make decisions in the open.

11. Don't modify results of requested advice to serve
preconceived programmatic objectives.

NOT IN MY BACKYARD

While Nevada representatives are quick to point out the fact
that the State has already done much more than its share to
support the nation's nuclear programs, that argument is really

-19-

803

- l^.

1. What is your opinion of Governor Gardner's proposal for a
non-bindino conflict resolution process to develop a
consensus on how to proceed with the program? Would this
solve the problems with the program as you see them? Why or
why not?

-20-

804

non-technical influences that have driven DOE's management of the
waste program to date.

DOE has shown little inclination to change its ways. It
continues to deny states the funds required to perform adequate
oversight and independent confirmatory studies. It persists in
limiting state involvement in key decisions and program
activities. Nevada has offered to negotiate the issues which
underlie the State's legal actions against the Department and DOE
has refused. The current DOE-implemented waste program is so
flawed that a "conflict resolution" approach is not likely to
result in a successful outcome. What is needed is a commitment
from the Department to retract the siting decisions that have
been made to date and begin the NWPA siting process over again
using new/ objective siting guidelines and with a stated purpose
of finding the best and safest site for a repository.
NEED TO AMEND THE ACT
1. Are you asking Congress to amend the Nuclear Waste Policy

Act to address the issues you raised in your testimony? If

so, could you describe your proposed amendments to the Act?

If not, how do you propose that the Department move forward

with the program?

tribe if your site is chosen for the repository?

-21-

805

The Department of Energy has consistently sought to
exaggerate the potential economic benefits of a repository in
Nevada while ignoring or downplaying the possible negative
aspects. The only attempt by DOE to address the economic aspects
of repository siting in Nevada is in the Environmental Assessment
(EA) for the Yucca Mountain site. That document was seriously
deficient in its analysis of economic costs/benefits. State
reviewers concluded that the EA presented a "best-case" scenario
that minimized potential impacts to the social and fiscal systems
of southern Nevada. It ignored risk, assumed unchanging
demographics, and proceeded from, the premise that all markets
function with perfect information. It used a model of
questionable validity and ignored relevant differences between
two of counties bordering the site (and ignored the rest of the
state entirely) .

-22-

806

Nowhere was the calculation by which DOE arrived at
<3iirect repository employment explained. Such calculation is
crucial because it drives a number of other key variables in the
socioeconomic analysis, including total employment, which, in
turn, provides the basis for projecting impacts on local
communities (and on the state).

Indirect employment figures were likewise suspect
because of the use of a multiplier that was between 2*5 and 5
times larger than multipliers employed for any other site. State
agency reviewers consistently questioned the applicability of
such a large multiplier even for the more cosmopolitan Clark
County, which has a more diverse and sophisticated overall labor
force than rural Nye County.

DOE consistently focuses on employment and income gains
that will occur as the site is developed and just as consistently
ignores the declines in employment and the negative impacts on

-23-

807

local revenues and markets that could occur as the project moves
from construction to operations and from operations to closure.

Another major area where DOE's economic analysis is
seriously deficient involves the analysis of potential
repository-related impacts on the primary sector of Nevada's
economy — tourism. The tourism analyses contained in the EA and
in supporting and subsequent materials are superficial and
largely irrelevant. DOE attempted to infer that because impacts
on tourism as a result of major hotel fires and the Three Mile
Island incident were short-lived and minimal, a repository (and
related shipments of nuclear waste passing through Las Vegas over
30 years) will have little effect on the State's tourism
industry. Not only is such treatment of this crucial subject
inadequate and misleading, but it also fails to differentiate
between short-term, crisis-related events and the implications of
a project that will be ongoing for 10,000 years. Likewise, any
attempt to relate tourism at places like Harrisburg,
Pennsylvania, to tourism at Las Vegas is superfluous. As with so
much of DOE'S work, there is an obvious attempt to treat
conjecture and opinion as fact -- and then to infer a lack of
negative consequences as a result of such "facts."

-24-

808

2. What discussions have you had with DOE about economic
benefits?

benefits, for both the period of site characterization and
construction, increase your state's willingness to qo along?
Response ; Any discussion regarding economic benefits of a
repository in Nevada is extremely premature and detracts from the
real issues involved with the siting of a facility at Yucca
Mountain. First, as pointed out above, any direct economic
benefits of a repository must be balanced with a clear picture of
possible economic and other liabilities. Such a balanced

-25-

809

The Nuclear Waste Policy Act requires that technical
factors relative to site suitability be the predominant criteria
by which a repository location is selected. To offer economic
benefits and compensation to a state before a repository site has
been deemed suitable — or, in the case of Nevada, where the
Yucca Mountain site ha- been shown already to have potentially
serious flaws — is to infer that the technical viability of a
site is less important than political and other considerations.
Nevada believes that such an approach will only confuse the
important issues surrounding site selection and could have
disastrous consequences should a technically inferior site

-26-

810

ultimately be chosen as a result of the emphasis placed on

economic benefits and compensatory factors.

LAWSUITS

1. What are the main contentions in lawsuits that you have

filed against DOE concerning the nuclear waste proaram?

Please provide a list of the pending lawsuits, where they

are filed, and the status.

Response ; Nevada is petitioner in the following lawsuits,
all filed in the Ninth Circuit Court of Appeals:

1. Nevada v. Herrington. 777 F. 2d 529, (Ninth Cir. 1985).
the Court found in Nevada's favor regarding funding for
independent technical studies under Section 116(a) of the NWPA.
DOE has not yet funded several of these studies.

2. Nevada v. Herrington. No. 85-7308. This action
challenges the adequacy of U.S. DOE's siting guidelines under
Section 112(a) of the NWPA (consolidated with EPI v. Herrington,
No. 84-7854).

3. Nevada v. Herrington. No. 86-7307, challenges proce-
dures used to nominate, recommend and obtain Presidential approv-
al of sites for characterization.

4. Nevada v. Herrington. No. 86-7308, challenges the
Secretarial decision to characterize Yucca Mountain without first
obtaining Congressional withdrawal of land pursuant to Federal
Land Policy and management Act.

5. Nevada v. Herrington. No. 86-7309, challenges the legal
adequacy of the final Environmental Assessment for Yucca Mountain
under Section 112(b) of NWPA.

-27-

811

6. Nevada v. Herrington, No. 86-7310, challenges the
Secretarial preliminary determination of suitability under
Section 114(f) of W-JPA.

-28-

812

RESPONSES TO QUESTIONS POSED BY SENATOR JAMES McCLURE

1. Is there anything we. as Congress, or that the Department,
could bring to the nuclear waste disposal process, that would
shift the focus away from the litigious confrontational bind we
now find ourselves in. and towards a more productive and
constructive avenue?

Response ; This question poses an interesting distinction
between the objective, scientific and technical resolution of
problems and the political, legal and regulatory resolution of
problems. It is noteworthy that the basic argument contained in
most of the lawsuits filed against the Department of Energy
assert the Department's failure to use the scientific, objective
or technical approach. If Congress believes that the scientific
and objective approach is the better one, and certainly it is the
approach preferred by the Nuclear Waste Policy Act, then Congress
should demand that approach of DOE as the states have been doing
for several years.

813

814

factors in site selection, the program will continue to be
crippled by lawsuits and other forms of protest by states,
tribes, interest groups and concerned citizens.
2. It is my understanding that C & C (Consultation and
Cooperation) negotiations are now totally deadlocked. Could you
provide the Committee with evidence that you have made aood-faith
efforts to sit down with the Department to hammer out a C & C
agreement? How would you characterize these efforts to date?
What would it take to bring you back to the table at this point?

consideration for the first repository. Has your statg

considered the economic benefits that such a undertaking might

provide?

Response; The State of Nevada is looking very carefully at
the potential economic benefits and costs associated with site
characterization. The fact that DOE estimates it will cost $1

815

billion to characterize the Yucca Mountain site, in no way means
that the State of Nevada will realize substantial economic (i.e.,
monetary/employment) benefits. Indications are that very little
in the way of site characterization benefits will accrue to the
state or to local communities. DOE's own estimates indicate
that, at most, 273 workers will be employed during
characterization. That represents something like two tenths of
one percent of the work force in the two-county area surrounding
the site, assuming that all 273 jobs are filled by new workers.
However, DOE expects that sixty percent (60%) of those 273 jobs
will be filled by workers already employed at the Nevada Test
Site . Consequently, the employment benefits of site
characterization are so small as to be insignificant.

In summary, it has been DOE's policy to stress the potential
economic advantages of site characterization (as well as

816

subsequent construction and operation of a repository) . In fact,
DOE has not done an accurate assessment of the economic costs and
benefits with regard to characterization. However, DOE's own
conclusions, as reflected in the Environmental Assessment for the
Yucca Mountain site and the Draft Socioeconomic Monitoring and
Mitigation Plan, indicate that economic benefits to the State are
likely to be insignificant or non-existent.

Response ; As noted above, the relationship between site
characterization work and economic benefits to the State or local
communities is not likely to be significant. More importantly,
the fact that DOE spends money on characterization activities
does not automatically mean that crucial technical issues
relative to the Yucca Mountain site will be answered — or even
adequately addressed. DOE has attempted to avoid addressing some
of the more fundamental technical issues for years and has tried
to prohibit the State of Nevada from conducting studies aimed at
generating needed technical data.

817

Response; Nevada believes that it is currently cooperating
fully in the site selection process. It is the State's role, as
prescribed by the Nuclear Waste Policy Act, to monitor and
oversee DOE's siting activities and assure that the conclusions
drawn and decisions reached are appropriate and sound and that
the health and safety of the citizens of the state are being
adequately protected. Nevada has consistently striven to carry
out that role. -

Additional socioeconomic benefits for the State will no't
"fix" the site selection process simply because Nevada and the

818

other potential host states are not the problem. The question
infers that state "cooperation" to date has some how been lacking
and economic "sweeteners" might promote less aggressive state
oversight. The problem to date has been DOE's refusal to follow
the letter and spirit of the Nuclear Waste Policy Act. In
instance after instance, DOE has attempted to use the Act to
ratify predetermined decisions. Had the Department heeded
state's concerns over the inadequacy of the siting guidelines —
the first major decision document developed under the Act — many
of the current siting problems would have been avoided. If DOE
had done a scientifically objective job of screening and ranking
sites instead of manipulating the site selection methodology to
assure that the Hanford and Yucca Mountain sites would be
included in the top -three sites, it would not now be accused of
blatant mismanagement of the program. Likewise, if DOE had
followed the letter of the law and not attempted to eliminate the
second repository program for political reasons, the Department
would not be accused of bringing the entire repository program to
the brink of disaster.

819

Response; Nevada's relationship with DOE relative to the
high-level waste program is difficult to characterize simply. In
general, the state has enjoyed a fairly good working relationship

820

The State's relationship with the Office of Civilian
Radioactive Waste Management (OCRWM) in Washington, D.C. has been
considerably more negative. It is the State ' s contentions that
DOE/Headquarters decision makers tend to view State-DOE
relationships in a much more adversarial manner and see the State
solely as an obstacle in the path of its repository program.
DOE/Nevada officials, on the other hand, appear to understand
and, in many cases sympathize with State issues and concerns.

Nevada believes that much of the difficulty that now exists
in the relationships between DOE and the states could be
eliminated if DOE project offices were given more authority and

821

7. Have any of vo" taken the time to study the process by which
the State of New Mexico negotiated and implemented than version
of a "C s C agreement" with DOE for the waste disposal activities
taking place at the Waste Isolation Pilot Project near Carlsbad,
New Mexico? Have any of you visited the WIPP facility, or talked
with the state government and environmental representatives in
New Mexico to learn from their experiences?

Response ; Nevada has indeed studied the process by which
the State of New Mexico negotiated and implemented its version of
a C&C agreement for the Waste Isolation Pilot Project. You may
recall that agreement was written as a stipulated resolution of a
lawsuit. It was not written because of the willingness of the
federal government to cooperate with the State of New Mexico.
From fehe beginning, its execution was not wholly satisfactory to
the State of New Mexico, and subsequent litigation was necessary
to resolve additional issues upon which the federal government
and state did not agree. The State of New Mexico is continuing
to assert its dissatisfaction with DOE's interpretation of the
agreement with respect to transportation issues.

822

Nevada has worked closely with representatives of New
Mexico's Environmental Evaluation Group (EEG). In fact, Nevada
transportation representatives are, at the present time, working
with New Mexico officials in an attempt to require DOE to adhere
to the letter and spirit of the New Mexico C & C agreement
governing the transportation of waste to the WIPP facility. As
it has done with regard to the Nuclear Waste Policy Act, DOE is
attempting to interpret the New Mexico agreement to suit its
(DOE'S) own purposes and is reneging on commitments relative to
transportation issues and to the application of EPA performance
standards to the WIPP facility.

R^l^tiong," This report was done at the request of this

Committee, and should be available in final form by the end of

823

this week. What is your opinion about the conclusions and
recommendation in this report?

8.b. If the recommendations in this report were implemented,
would this significantly improve the Prospects for success of the
Program?

It is Nevada's contention that the finely crafted
relationship established between DOE and the states in the Act
has not been fully realized, and that this situation threatens to
render the purpose and framework of the Act inoperative. We
further contend that the cause of this failure rests strictly
with the Department of Energy and stems directly from DOE's
inability or unwillingness to understand the fundamental nature
of the state/federal (i.e., DOE) relationship under the Afct. For
whatever reason, DOE has chosen to pursue its role as program
decision maker with relish — as it has every right and

824

What DOE has failed to grasp in over four years of NWPA
operation is states such as Nevada do not exist simply as
obstacles in the path of its repository program. We have a role
to play that is every bit as crucial as DOE's. While state
relationships with DOE are and should be adversarial, it is only
out of this adversity that a firm basis of public confidence in
DOE'S handling of the waste program can emerge.

825

The Draft EA's themselves are another example of DOE
intransigence when it comes to state involvement in key decision
areas. Nevada and other states consistently asked DOE for nearly
two and one-half years for the opportunity to participate in the
development of the Draft EA documents, especially in the design
of the ranking methodology that would be used to discriminate
between sites. DOE steadfastly refused to allow states the
opportunity to influence the form or substance of those documents
until they were issued in draft form and until DOE was already so
coinmitted to decisions relative to content, methodologies, and
the like that it was unable to give more than lip service to
state concerns as finally expressed in formal comments. The
result — environmental assessments that are inadequate for
substantiating DOE claims relative to site suitability and which
bind the Department into an inflexible and extremely limited view
of the various sites under consideration. Instead of public
confidence and acceptance being enhanced by the EA's - DOE is
left to defend a set of decision documents that are themselves
objects of skepticism and public derision.

DOE'S management of the nuclear waste fund has likewise been
aimed at limiting, whenever and wherever possible, state access
to funds needed to fully carry out OT^PA responsibilities. DOE's
performance in this regard is especially reflective of how the
Department has approached other key aspects of the repository

826

As I pointed out earlier and as the examples I've cited
demonstrate, the DOE approach to implementing the NWPA has been
to interpret the Act only in ways that support pre-Act siting

827

828

THE STATE OF NEVADA
EXECUTIVE CHAMBER

Carson Cily, Nevada 89710

RICHARD H BRYAN

TCILPHONE

1702) 6e5-)«ro

Cecember 16, 1986

The Honorable John S. Harrington
The Secretary of Energy
U.S. Department of Energy
Washington, D.C. 20585

Dear Kr. Secretary:

I have reviewed Mr. Pusche's November 19, 1986 letter
seeking to enter into a binding written agreement with the State
of Nevada pursuant to Section 117 (c) of the Nuclear Waste Policy
Act, 42 U.S.C. 10137(c). His letter proposes commencement of
negotiations with a "team" of Department of Energy personnel
headed by Mr. Don Schueler, Deputy Manager of the Nevada Oper-
ations Office.

As you know, I, along with the Attorney General and the
entire congressional delegation have filed actions challenging
the legality of nearly every major decision that the Department
has made in this program. These challenges are supported by a
broad spectrum of the citizens of Nevada. These actions
challenge the validity, as well as the legality, of this program.

829

Honorable John S. Kerringto^

December 16, 198 6 \

Page Two

and to the extent that they are successful, major program de-
cisions regarding site selection that you have made rcay be
declared null and void and the entire siting process restarted.
This may include the development of new siting guidelines,
rescreening for potentially acceptable sites, the development of
new environmental assessments, and restarting the second repos-
itory program.

To the extent that oiir concerns regarding the legality
of the siting guidelines, the ^site selection process, the en-
vironmental assessments and the timing of the preliminary deter-
mination of suitability required by Section 114(f) of the Act and
the second repository program are negotiable, then perhaps
discussion regarding a possible written agreement may be appro-
priate, and I'd appreciate your consideration of those matters.

Additionally, the manner in which the Department of
Energy has treated the State of Nevada in attempting to consult
and cooperate, as required by the Act, has compounded this
situation. The Department has conducted its grants application
process in an arbitrary fashion. As you know, Nevada has been
forced to seek review by the courts of the way in which the
Department has used the grants process to limit the State's
participation in the program, and it appears that, even though
the court ruled in our favor, we now may be forced back to court
over our current grant application.

This lack of cooperation also diminishes our confidence
that the Department would honor the terms of a written agreement
any more than it has lived up to the statutory requirements of
the Act. Should the Department be sincerely interested in
consulting and cooperating with the State of Nevada, it can
demonstrate that commitment by fulfilling our grant request
without the continuing difficulties which has been present in
nearly every one of our past, as well as our current, grant
requests.

77-104 0-87-27

830

The Honorable John S.
December 16, 1986
Page Three

Herrington

I'd appreciate your consideration of these concerns,
and I would be happy to provide any further information you may
require. Robert Loux, Director of State Nuclear Waste Project
office will be available to discuss our concerns with Mr. Rusche
or Mr. Schueler at any mutually convenient time.

RHB/dkl

cc: Mr. Ben Rusche
Kr. Don Schueler
Kr. Grant Sawyer

831

CONFEDERATED TRIBES OF THE
UMATILLA INDIAN RESERVATION

RESPONSE TO SENATOR HcCLURE

1) By the very nature of our political process and our demo-
cratic structure, our society tends to depend more on the
legal procedure, the hearing, the regulation, and the
lawsuit, than it depends on the science, the technology, or
the actual physical process of working through a problem.
(Witness over 30 lawsuits now pending against DOE concerning
the Nuclear Waste Program.)

Is there anything that we, as Congress, or that the
Department, could bring to the nuclear waste disposal
process, that would shift the focus away from the litigious,
confrontational bind we now find ourselves in, and towards a
more productive and constructive avenue?

Response

In the NWPA, Congress charged DOE with -siting nuclear waste
repositories in a manner that integrated science and legal
procedure so as to protect public health and safety and the
environment and to cultivate public confidence in the siting
of these facilities. The repository program is mired in
litigation and has incited widespread public cynicism because
DOE has manipulated the science and ignored the legal
procedure required under the NWPA. Since DOE has failed to
consult with affected parties or ignored their input,
litigation has proved the only recourse to affected parties

832

able to afford it. Let me note at the outset that the CTUIR
has not sought judicial review of DOE actions to date in
large part because the Tribe is unable to afford the
litigation costs.

When Congress passed the NWPA, it recognized the
widespread public concern about radioactive waste management.
Because of the intense public concern, use of the courts by
parties opposing nuclear waste facilities may be inevitable.
DOE will fare poorly in these cases because the Department
has manipulated data and violated the NWPA in decisions
affecting both the first and second repository programs.
Public confidence in the repository program will suffer
accordingly.

DOE has resisted calls by affected parties for changes
in the manner in which the Department discharges its
responsibilities under the Act. It seems doubtful DOE will
implement a mid-course correction because of internal
pressure. Even if it did, however, DOE's credibility has
been tarnished so badly over the past 3 years, it may be too
late regardless of what DOE does.

Clearly Congress needs to address the confusion in the
repository program. The CTUIR suggests Congress take the
following action:

a. Site specific work at the three sites selected for
characterization for the first repository should be
brought to an immediate halt.

833

b. Site selection for the first repository must be done
over again. We should take advantage of the lessons
we have learned from DOE's mistakes. Site
selection should be resumed under siting criteria
that are more objective and provide DOE no room for
manipulating data to arrive at pre-determined
decisions.

c. The development and implementation of the
methodology used to select sites must involve the
participation and oversight of potentially affected
states and Indian tribes. Congress may also consider
the creation of an independent panel of experts to
oversee the siting process. DOE has attempted to
capitalize on the National Academy of Science, review
of the Multiattribute Utility Analysis in which the
NAS concluded the methodology was state of the art.
However, the NAS did not review the actual use of
the methodology to select the 3 sites for
characterization. Any panel of experts must review
the methodology used to compare the different sites
as well as the use of the methodology to select
sites. This oversight would avoid the manipulation
of the methodology by DOE that was revealed in the
Markey-Weaver Report last October.

d. The second repository program should be resumed. It
seems generally accepted that states (but not
tribes) with sites under consideration for a second

834

repository had adequate opportunity to provide input
into the Draft Area Recommendation Report. There-
fore, the second repository program should resume
where it was left last May.
DOE justification for postponing the second repository
program should be ignored. The political compromise that
produced the NWPA was premised on a 2 repository system
balanced geographically. The political acceptability of the
first repository in the West will be hopelessly lost if doe's
decision to illegally postpone the second repository program
in the East is allowed to stand. m the event Congress
decides only one repository is needed in the near term, then
the selection process for the first repository must include a
consideration of the crystalline sites.

e. The NWPA should be amended to clearly state the
authority Congress intended for affected Indian
tribes under the Act. The role and authority of
affected Indian tribes has been the source of
constant friction with DOE. Responses to questions
2 and 6, below, further discuss problems the CTUIR
has encountered. The legislative history of the
NWPA clearly indicates that Congress intended
affected tribes to be treated as affected states
were. DOE has been unwilling or reluctant to
acknowledge this. The CTUIR would be pleased to
provide specific suggestions on the ambiguous
provisions needing clarification.

835

2) It is ray understanding that C&C (consultation and coopera-
tion) negotiations are now totally deadlocked. Could you
provide the Committee with evidence that you have made good-
faith efforts to sit down with the Department to hammer out a
C&C agreement? How would you characterize these efforts to
date? What would it take to bring you back to the table at
this point?

Response

The CTUIR has been actively engaged in the C and C process
since August 1985 when we initiated negotiations with DOE.
Since that time, seven negotiation sessions have taken place.
The CTUIR entered negotiations with a lengthy draft agreement
which we have revised eleven times as a result of negotia-
tions with DOE and internal discussions with Tribal leaders.
We terminated negotiations in January 1987 because of DOE's
narrow interpretation of the rights of affected Indian tribes
under the NWPA. Administratively, the DOE negotiating team
has not been well prepared or cohesive, and opens challenges
to sections of the draft agreement presumed to have been put
to bed. The DOE has not, to date, faced the difficult issues
of the extent of Tribal participation and oversight during
the site characterization phase, the flexible financial
clause provisions or the dispute resolution process.
Further, the DOE budgeting process, to date, has been
inconsistent and so short term as to preclude the CTUIR
establishing a continuous, planned, long-term program and

836

with the staff we need to perform our oversight function.
Attached is our Report to Congress, dated January 1987, which
more fully outlines the history of our negotiations with DOE
and why we terminated those negotiations.

In light of the mistrust we have concerning DOE's
implementation of the NWPA, returning to the negotiating
table may be difficult. DOE has frustrated the public
participation and confidence Congress found essential in the
NWPA.

The CTUIR would be willing to return to the negotiating
table under the following conditions:

a. That DOE is committed to implementing the NWPA as
Congress intended.

b. A recognition in writing from DOE that affected
Indian tribes are entitled to similar authority as
states in the repository program.

c. A commitment in writing from DOE that ambiguities in
the NWPA concerning the authority of affected
parties will be liberally construed as Congress
commanded in the legislative history. This
principle is especially important for affected
Indian tribes which do not host a repository on
their reservation. The NWPA is contradictory at
times as to what authority such an affected tribe
has. Compare Section 118(b)(3)(A) and (B)
concerning impact assistance. Or, the Act sometimes

837

fails to mention tribes at all where it is clear
affected tribes need to be included. See Section
117(C) (5-9) concerning C and C Agreement procedures.
The Senate Energy and Natural Resources Committee Report
on the Senate predecessor bill to the NWPA said that states
and tribes "should be entitled to the broadest possible
rights and opportunities to participate in the development of
the facilities... The Committee expects this fundamental
principle to govern any interpretation, including judicial
interpretation..." of the Act. S.Rep. No. 282, 97th Cong.
1st Sess. 28 (1981) . The Ninth Circuit cited this legisla-
tive history with approval in State of Nevada ex rel Loux v^
Herrinqton, 777 F.2d 529, 533 (9th Cir. 1985). DOE has
refused to recognize this rule of construction in the past
and many disputes concerning tribal participation have arisen
as a result. We will not negotiate any further with DOE
until their position on this important matter changes.

d. DOE must recognize that the function of a C and C
Agreement is not to merely restate the terms of the
NWPA. Nor is such an agreement limited to the
procedures set out in Section 117(c). The CTUIR has
always maintained that Section 117(c) sets the floor
for a C and C agreement, not the ceiling. Congress
intended the agreement to reflect and respond to the
interests and concerns of the affected party. CTUIR
interests involve our Treaty of 1855, federal Indian
law principles, the federal trust responsibility for

838

Indian rights and resources and other federal
legislation protecting Indian rights. DOE has been
reluctant to include C and C provisions that rely
upon this authority because it lies outside the
NWPA. The CTUIR has demanded that DOE recognize
that Indian tribes are unique entities with special
legal and political authority. Simply put, we will
insist that DOE agree in writing that the terms of
Section 117(c) were not intended to restrain the
scope of a C and C Agreement.

3) The site characterization process is estimated to cost
upwards of $1 billion in each of the three States under
consideration for the first repository. Has your tribe
considered the economic benefits that such an undertaking
might provide?

Furthermore, if what you claim about the technical flaws
of your sites is indeed true, then wouldn't the best proof of
that claim be the real, scientific findings that would result
from such an undertaking? So you would win on two fronts:
(1) substantial monetary and employment benefits to the
tribe, and (2) scientific substantiation that your sites are
unsuitable for nuclear waste disposal.

Response

The CTUIR has considered the possibility of economic benefits
associated with the characterization of the Hanford site.

Our review of the available information leads us to conclude
that Tribal members will not realize any economic benefit
from site characterization activities at Hanford. In any
event, regarding the question of "technical flaws" in the
candidate repository site, the CTUIR has several concerns.
There is ample evidence that the DOE failed to consider
available scientific information on several important aspects
of the Hanford site, such as potential hydrocarbon and
geothermal resources that could possibly disqualify the site.
Second, DOE ignored portions of its own siting standards and
guidelines in the nomination of the Hanford site. While the
CTUIR feels that characterization of Hanford would provide
further substantiation of our claim that Hanford should not
be selected for a repository facility, we also feel that no
one benefits from characterization of a site that ranked last
by doe's own analysis by several orders of magnitude. The
result may well be the $1 billion characterization of a site
that cannot be licensed and which causes further erosion of
public confidence in DOE's repository siting decisions.

4) Besides the influx of jobs and money directly associated with
site characterization, what other socio-economic benefits
would you consider as essential to your tribe's full coopera-
tion in the site selection process?

Response

Question 4 assumes that the CTUIR will enjoy substantial

840

employment and other economic benefits as a result of the
characterization of Hanford. As previously indicated, this
does not appear to be the case.

CTUIR cooperation in the site selection process depends
upon the following conditions:

a. Utilization of a site selection methodology based
upon clear and concise guidelines and siting
decisions based on technical merit rather than
political and programmatic expediency;

b. DOE'S recognition of the oversight authority of
affected Indian tribes in the repository program and
that that authority is equal to that of affected
states; and

c. DOE'S recognition that it has bears the Federal
Government's fiduciary duty to protect the
reservation and resources of the CTUIR.

5) In your opinion, would earlier, greater involvement by NRC
and EPA help restore your confidence in DOE's program?

Response

NRC and EPA involvement has been appropriate to date. Greater
NRC involvement in the siting process would compromise the
Commission's licensing authority under the NWPA. Our limited
relationship with the NRC has been cooperative and
productive. NRC seems to understand the consultation
requirements under the NWPA better than DOE as evidenced by

841

their proposal to engage all affected parties in negotiated
rulemaking to develop the Licensing Support System to manage
the data relevant to repository licensing.

Greater EPA involvement may be desirable. Since issuing
the regulatory standards for repositories, the agency has not
been actively involved in the repository program. An EPA
representative could be useful as a participant on an
independent board of experts overseeing DOE site selection
and characterization activities should one be established.

However, the CTUIR feels that DOE's failures in
implementing the NWPA cannot be properly remedied by greater
involvement by the NRC or the EPA. Our concern has been the
necessary involvement by the Tribe as an affected party early
on in the process to assure that our concerns are' properly
addressed and that we have the opportunity to independently
evaluate the elements we feel most important to our
interests, so that we understand the proposal and have the
opportunity to input into the decision-making process. If
allowed to participate in this mode we feel that many of our
concerns can be addressed prior to the regulatory phase of
the project.

6) How would you characterize your relationship with DOE to
date? what could be done to improve your ability to work
with, communicate with, and provide advice to DOE?

842

Response

Our relationship with DOE, to date, has been strained and
frustrating. Although the NWPA has provided an opportunity
for affected parties to participate in the decision-making
process and provides for the affected parties to develop
their own independent information pertinent to their own
particular concerns to allow meaningful participation, this
has not always been possible. DOE has not been able to grasp
the role provided by Congress to the affected parties and
tends to treat them simply as grantees to participate as DOE
sees fit. DOE needs to better understand this affected role
as provided in the Act, as the affected parties have a
defined participatory role to protect their interests and to
provide the basis for communicating their concerns during the
preregulatory phase of the project to attempt to avoid
unnecessary conflict as the project proceeds.

The DOE needs to better understand the necessary input
from the affected parties and the importance that this input
can mean to the overall project instead of operating similar
to how the defunct Atomic Energy Agency did in the past in
assuming anyone outside the Agency was a threat to their
mandate and had no real place in the decision-making process.
It appears to us that this attitude prevails in the DOE and
is partly responsible for the lack of cooperation and recog-
nition given to the affected parties.

7) Have any of you taken the time to study the process by which
the State of New Mexico negotiated and implemented their

843

version of a "C&C agreement" with DOE for the waste disposal
activities taking place at the Waste Isolation Pilot Project
near Carlsbad, New Mexico? Have any of you visited the WIPP
facility, or talked with the State government and environ-
mental representatives in New Mexico to learn from their
experiences?

Response

Yes. It is interesting to note that the New Mexico C and C
Agreement was negotiated and signed as a result of a lawsuit
filed by the State to force DOE to provide for State over-
sight of and input in DOE activities at the WIPP site. We
reviewed the New Mexico C and C Agreement and met with New
Mexico officials prior to preparing our own C and C working
paper in 1985. The New Mexico officials we spoke with
complained about the DOE mindset we have encountered in our C
and C negotiations. That mindset does not and has not
adapted itself to the independent oversight authority of
affected parties. The CTUIR is attempting to use the C and C
negotiations to clarify and define the Tribe's interests,
concerns and authority in the repository program. While we
feel we have learned some valuable lessons from the New
Mexico experience, DOE's reluctance to recognize the role
Congress intended affected Indian tribes to play leaves many
obstacles to clear in any future negotiations.

8) Most of you have read GAO's draft report on "Institutional

844

Relations." This report was done at the request of this
Committee, and should be available in final form by the end
of this week.

a) What is your opinion about the conclusions and recom-
mendations in this report?

b) If the recommendations in this report were implemented,
would this significantly improve the prospects for
success of the Program?

Response

The recommendations in GAO's report are generally good, but
they will not, by themselves, solve the problems in the
repository program. The specific recommendations and the
CTUIR reaction are as follows: '

a) DOE should open up all coordinating group meetings to
affected parties. This has already been done by DOE -
an effort we have been pushing for since 1985. The
coordinating groups vary in their willingness to
accommodate the input of affected parties. Our
experience demonstrates the environmental and
transportation coordinating groups have not been
receptive to affective party participation while the
institutional and socio-economic coordinating group has
been.

b) DOE should use independent advisory groups. This
suggestion raises many difficult questions. Who would
the group be independent of? Who would select the

845

group? Would their decisions be binding? On whom? What
subject would the group provide advice on? To whom?
What would be the implications of such groups on the
independent oversight authority of the affected parties?
Despite these questions, it seems clear that the
resolution of some important technical issues would
benefit from' the scrutiny of an independent advisory
group comprised of members with the appropriate
expertise. However, the affected parties must be
involved in the selection of members and in defining
their function. /

DOE should adopt a revised strategy to formalize
agreements with affected parties. DOE has no strategy
for formalizing C and C agreements. The revised Mission
Plan claims to contain new C and C initiatives but
doesn't mention anything that could be characterized as
an initiative. DOE's suggestion of generic C and C
negotiations have been unequivocally rejected by all
affected parties. The Act requires DOE to conduct
negotiations with each affected party. DOE's acceptance
of a "most favored nation" clause in a C and C
agreement, whereby the first party to sign an agreement
can receive the benefits of agreements signed
subsequently by other affected parties, is not an
initiative. It's a common clause in agreements of this
nature. DOE's claim it is prepared to seek the services

846

of third-party negotiators hardly seems much of an
initiative, especially since that negotiator will have
to argue DOE's positions,
d) DOE should revise definition of consultation and
cooperation in Mission Plan. The present Mission Plan
definition of consultation and cooperation requires DOE
. to do absolutely nothing. DOE called affected parties
to a meeting at the last minute in New Orleans last
November in the hopes we would resolve the three year
old problem of consultation deficiencies in a day. DOE
provided no proposal on a revised definition. DOE
claimed they wanted to get the revised definition in the
draft revised Mission Plan due out in a few months. We
agreed resolution of this problem would take longer than
DOE's Mission Plan schedule could accommodate. DOE
claimed the initiative would continue. The revised
Mission Plan says DOE wants to hold more meetings with
affected parties before the Mission Plan revisions are
submitted. As of March 18, 1987 we have not heard from
DOE on when such a meeting might be scheduled. We think
DOE's failure to follow up on the November meeting
reflects their commitment to the consultation and
cooperation requirements of the NWPA.
One final point. Generally, parties only enter negotia-
tions and sign agreements with parties they trust. DOE's
implementation of the repository program has not inspired the
trust or confidence of the CTUIR. More to the point, the

847

CTUIR C and C negotiations experience with DOE has not earned
the respect of Tribal negotiators. This lack of confidence
in DOE will make returning to the negotiations table more
difficult. doe's clear violations of the letter and spirit
of the NIVPA has resulted in CTUIR skepticism DOE will comply
with the provisions of a C and C agreement. DOE has failed
to earn the confidence and trust of the CTUIR.

848

NEZ PERCE TRIBAL EXECUTIVE OORWITTEE

RESPONSES TO QUESTIONS

TO AFFECTED INDIAN TRIBES

UNITED STATES SENATE COftWITTEE

ON ENERGY AND NATURAL RESOURCES

1) By the very nature of our political process and our democratic
structure, our society tends to depend more on the legal
procedure, the hearing, the regulation, and the lawsuit, than it
depends on the science, the technology, or the actual physical
process of working through a problem. (Witness over 30 lawsuits
now pending against DOE concerning the Nuclear Waste Program.)
Is there anything that we, as Congress, or that the department,
could bring to the nuclear waste disposal process, that would
shift the focus away from the litigious, confrontational bind we
now find ourselves in, and towards a more productive and
constructive avenue?

As the Conmittee is aware, the Nez Perce Tribe is one of only two
affected governments that has not sued DOE for its conduct of the NWPA
program. Our reluctance to sue, however, does not indicate approval
of the Department's implementation of the Act. To the contrary, we
view the current posture and status of the program as illegal and
scientifically unsound. The program is in its poor state because DOE
has allowed political considerations to take precedence over
scientific considerations. Our choice not to sue DOE in connection
with the secretarial decisions of May 28, 1986, was based primarily on
our belief that scarce tribal resources may be applied more
constructively than in pursuit of litigation duplicative of that
brought by the State of Washington and the Yakima Indian Nation.

We agree with the proposition that the democratic processes by
which the United States is governed often results in legal procedures

849

can be a burden to the process of developing scientific and technical
solutions to problems involving public health and welfare. Those
procedures, however, serve the useful function of assuring the
integrity of scientific and technical work.

Litigation, therefore, always was likely to affect the NWPA
program. Such litigation, however, should not always be regarded as
unnecessary or inappropriate. The unlawful postponement of the second
repository siting process and the specious application of the
decision-making methodology in the first repository siting process
provide fertile ground for litigation. What is unfortunate is that
much of the litigation could have been avoided had DOE simply followed
the law. Tribal and state complaints regarding the process would find
less sympathy among federal judges and members of Congress if DOE had
not ignored the NWPA's clear instruction to conduct both siting
processes concurrently.

In order to restore the program to a sound footing, DOE must take
the following actions imnediately. First, all site-specific work must
stop. Second, the May 28 decisions must be withdrawn for
reconsideration. Third, DOE must establish a forum at which all
affected parties could gather to develop a consensus on how the
program should proceed. Fourth, DOE must prepare a plan of action
proposing a reasonable schedule for carrying out both the first and
second repository siting processes based on the consensus developed
with the affected parties. Even if no such consensus emerges, DOE
must revisit all key decisions from the point of the issuance of the
siting guidelines for the first repository, giving due weight to
tribal and state concerns regarding those decisions.

850

While some of this review will be duplicative, a vast amount of
technical work will not need to be repeated. Thus, this review need
not be wasteful. Indeed, it may prove less expensive than will the
defense and, ultimately, the loss of many of the lav.jsuits now pending.

Congress should encourage such a process of review and
reconciliation, if not by reopening the Act, then through the
appropriations process. As is discussed below, we have seen an
improvement in the Department's conduct since Congress' expressions of
displeasure last fall, and urge Congress to continue to limit DOE's
activities until such time as the Department restores the program to a
posture consistent with the letter and spirit of the Act.

2) It is my understanding that C & C (Consultation and Cooperation)
negotiations are now totally deadlocked. Could you provide the
Coimittee with evidence that you have made good-faith efforts to
sit down with the Department to hanmer out a C & C Agreement?
How would you characterize these efforts to date? What would it
take to bring you back to the table at this point?

The Tribe conxnenced its formal preparation for C & C negotiations

by holding training sessions on June 6 & 7 and July 25 &. 26, 1986 for

members of the Nez Perce Tribal Executive Conmittee ("NPTEC"). At

those sessions, the NPTEC discussed the entire range of issues

concerning the negotiation of a C & C Agreement with the Department.

Inmediately after the July training session, the Chairman of the NPTEC

received a letter dated July 25, 1986, from Mr. Lee Olson, Director of

the Basalt Waste Isolation Division of the Richland DOE Operations

Office. (See Attachment No. 1.) This letter presumably was intended

851

to satisfy the Secretary's obligation under Section 117(c) to seek to
enter into negotiations within sixty days of the approval of a site
for characterization.

The July 25 letter, however, proposed a procedure unacceptable to
the Tribe. Specifically, the letter proposed a joint meeting of DOE,
the three affected tribes, and the three affected states. Because the
Tribe believes that one-to-one meetings between DOE and the Tribe are
the only appropriate forum for the discussion of the terms of a C &
C Agreement, that proposal was rejected.

As a result of the July training session, however, the Tribe
invited DOE representatives to the tribal offices for a discussion of
certain issues preliminary to the conmencement of C & C negotiations.
Messrs. Powell and Olson of the Richland Operations Office represented
DOE at the meeting, which was held on August 1, 1986. The meeting
proved to be a positive development. DOE made several conmi tments"
that resolved certain tribal concerns.

After the August 1 meeting, the conmencement of negotiations was
delayed when the Tribe learned that DOE had determined preliminarily
that the Tribe was not eligible for impact assistance under Section
118(b)(3) of the NWPA. This determination never was formalized but
was enforced by DOE contract officers in negotiations concerning the
Tribe's grant for Fiscal Year 1987.

Despite several meetings and numerous discussions over the next
two months, DOE never committed a final decision to writing. The
Tribe, therefore, insisted on a process for final resolution of the

852

issue that would guarantee consultation with the Tribe at key points
in the decision-making process. The Tribal demand was conmunicated to
DOE by letter dated October 17, 1986. (See Attachment No. 2.)

To its credit, DOE agreed to the Tribe's demand. While the issue

was being pursued, C & C negotiations were pushed to the bottom of the

Tribe's list of priorities for some time. Only in December did the

-Tribe resume its consideration of C & C negotiations, and the impact

assistance issue soon merged with the matter of C & C negotiations.

The Tribe had received a letter from Ben Rusche renewing the
Department's invitation to negotiate, this time on the one-to-one
basis the Tribe desired. (See Attachment No. 3.) Partially in
response to this letter, NPTEC Chairman J. Herman Reuben wrote to Mr.
Rusche and linked the outcome of the impact assistance issue to the
Tribe's willingness to enter into C & C negotiations. (See Attachment

No. 4.)

When the NPTEC met again to consider C & C issues on December 12
& 13, the outcome of the session was a conditional offer to negotiate
a C & C Agreement. This offer was made in a letter from Chairman
Reuben to Secretary Herrington conveying two Resolutions of the
NPTEC. (See Attachment No. 5.) The offer was conditioned on a
favorable resolution of the impact assistance issue. In addition, the
Tribe asked the Secretary to acknowledge certain Tribal rights and

interests.

V/hile tribal preparation for negotiations continued, DOE moved
toward a resolution of the impact assistance issue. Finally, on
January 22, 1987, Chairman Reuben was advised by John Anttonen of the

853

Richland Operations Office that the issue had been resolved in the
Tribe's favor. On January 30, 1987, the Tribe received written
confirmation of the Department's decision. (See Attachment No. 6.)

The Tribe was pleased with the disposition of the impact
assistance issue. We do have lingering concerns regarding the
decision-making process, but believe the the entire affair constitutes
the showing of good faith on DOE's part that we deemed a prerequisite
to C & C negotiations.

That satisfaction, however, was tempered by the emergence of yet
another issue concerning tribal rights of participation under the
Act. Specifically, DOE announced at a December meeting of the
Institutional Socioeconomic Coordinating Group that it was reviewing
the question of whether C & C Agreements with affected tribes could
include all of the eleven elements listed in Section 117(c). That the
Department should entertain doubts on this issue at that late date was
made doubly unfortunate by the fact that DOE personnel from both
Richland and headquarters had assured the Tribe that each of the
eleven items was appropriate to be included in C & C Agreements with
affected tribes.

Significantly, tribal eligibility under each of the eleven areas
was one of the principles Chairman Reuben asked Secretary Herrington
to acknowledge in the Chairman's letter of December 15. By letter
dated January 14, 1987, Chairman Reuben advised Mr. Rusche that this
issue would have to be resolved before C & C negotiations could
begin. (See Attachment No. 7.)

854

In Chairman Reuben's letter of December 15, he had requested the
Secretary's acknowledgment of five principles. Those principles are
as follows;

1. The Tribe has a critical interest in maintaining the
environmental integrity of the Columbia River and its
tributaries, and Departmental activities at Ilanford should
be designed to avoid adverse impacts on the River.

2. The Tribe has a critical interest in protecting the natural
resources in the Tribe's possessory and usage rights area,
and Departmental activities at Hanford should be designed to
avoid adverse impacts on those resources.

3. By virtue of its treaties v/ith the United States, the Tribe
has prior and paramount reserved rights to certain natural
resources, and the Department is obliged to take all reason-
able measures to avoid harm to those resource.

4. As acknowledged in the President's policy statement of
January 1983, a government-to-government relationship exists
between the United States and the Tribe, which obligates the
United States to protect and enhance the proprietary and
governmental rights of the Tribe.

5. The provisions of Section 117(c) do not constitute a
limitation on the contents of a C & C Agreement; all issues
arising from the NWPA program are open for discussion in C &
C negot iat ions .

The Department's response came in a letter dated February 13 from
Ben Rusche to Chairman Reuben. (See Attachment No. 8.) In that
letter, Mr. Rusche agreed to the Tribe's position on the Section
117(c) issue and the Tribe's requests on certain procedural matters
concerning C & C negotiations. Mr. Rusche's letter did not address,
however, all of the principles of which the Tribe requested
acknowledgement .

The upshot of this history is that the Tribe has exhibited good
faith throughout the process. We are pleased that DOE has begun to
show interest in a better relationship with the Tribe. In a sense, we

855

If we were confident that DOE decision-making was driven by
technology and science rather than political considerations, we would
be more sanguine concerning the prospect of the characterization
process showing Hanford to be an inappropriate choice. DOE's
credibility as an objective analyst of scientific data, however, has
been compromised, in our view. It is a matter of record that:

(1) NRC staff have criticized DOE's technical
studies as being non-conservative, i.e., overly
opt imist ic;

(2) Hanford rated last among the five sites
nominated for characterization in both pre-
closure and post-closure factors, yet was
selected for characterization;

(3) DOE systematically removed negative observations
regarding the Hanford Site from drafts of the
Multiattr ibute Utility Analysis that served as
the basis for choosing sites for
character izat ion;

(4) Experts in decision analysis who participated in
DOE's preparation of the MUA and in the review
of that methodology conducted by the National
Academy of Sciences have criticized atrongly the
decision to characterize Hanford.

Given this record, we are concerned that DOE's technical work
maybe of doubtful reliability and that the ultimate criteria for
decision-making may be political rather than scientific. Under these
circumstances, we cannot see what is to be gained from
character izat ion.

856

4) Besides the influx of jobs and money directly associated with
site characterization, what other socio-economic benefits would
you consider as essential to your tribe's full cooperation in the
site selection process?

A primary concern of the Nez Perce Tribe is the development of

sufficient technical expertise to participate fully in the process.

The Tribe has retained technical experts to assist us in our

evaluation of the characterization activities at Hanford. We have a

continuing need, however, to develop a force of trained personnel to

assist in our monitoring, testing and evaluation activities. To this

end, we would find it most helpful to have funds to train Tribal

members to operate monitoring and testing equipment, analyze data, and

review DOE's technical work.

5) In your opinion, would earlier, greater involvement by NRC and
EPA help restore your confidence in DOE's program?

As a general matter, we believe that both NRC and EPA have been
involved in the program to the appropriate extent. A striking
exception involves NRC's failure to enforce its agreement with DOE on
the timing of the preliminary determination of suitability. As the
ConiTiittee knows, DOE comnitted in an NRC meeting to make that
determination only after characterization was well under way. The
Department later reversed itself, and NRC's failure to insist that the
prior agreement be follov/ed was disappointing at best.

Our confidence in the program might be increased by greater EPA
and NRC involvement, but only if those agencies have the authority to
force DOE to comply with their suggestions. NRC staff have conmented
constructively on DOE's work, yet DOE persists in ignoring many of
those coninents. For example, the NRC staff made a number of detailed

857

We attribute the Department's improved performance primarily to
the Continuing Resolution provision withholding $79 million of DOE's
budget until such time as the Secretary certifies DOE's good faith in
implementing Section 117 of the Act. Another factor appears to be Mr.
Kale's ascension in the Office of Geologic Repositories. Finally, Mr.
Rusche has taken a personal interest in DOE's relations with the
affected tribes and that interest has worked very much to our benefit.

We believe that the Office of Civilian Radioactive Waste
Management has worked hard to develop a better relationship with the
Tribe over the past few months. OCRWM has shown good faith in its
dealings with the Tribe, but only within the confines of the
atmosphere created by the May 28 decisions. If we accepted those
decisions as being valid, we would support a finding of the
Department's good faith in its dealings with us. Because we regard
the May 28 decisions as illegal, we cannot earnestly support such a'
finding. We of course offer no opinion as to DOE's good faith in
dealing with other affected parties.

We believe that Congress' action to force better efforts from the
Department in the area of C & c has had the effect of improving our
relationship with DOE. That being so and given the likelihood of
protracted negotiations between DOE and the Tribe, we believe that
Congress must continue to press DOE Jn this area if the relationship
is to become what Congress envisioned when enacting the NWPA.

7) Have any of you taken the time to study the process by which the

State of New Mexico negotiated and implemented their version of a

C & C agreement" with DOE for the waste disposal activities

taking place at the Waste Isolation Pilot Project near Carlsbad,

858

GAO's mission vjas defined quite narrowly. Rather than drawing
conclusions on the Department's conduct of institutional relations,
the report merely restates the views of the Department and the
affected parties, and offers little in the way of a substantive
comnent. This approach, unfortunately, provides only a catalog of
problems and not an analysis of the cause of the problems.

Nevertheless, the reconmendat ions , if implemented, will have a
positive effect on DOE/state/tr ibal relations. A good first step is
the opening of coordinating group meetings to state and tribal
participation as reconmended in the draft report. The real question,
however, is how to involve states and tribes at the key points in
DOE'S decision-making process, and it is not yet clear that
participation in the coordinating groups is sufficient to realize that

goal.

Another reconmendat ion was that DOE better define consultation
and cooperation in the Mission Plan. We cannot know how useful such a
definition would be without knowing its content. The draft Mission
Plan amendments, unfortunately, offer no clue as to how the Department
would define C &; C. While the states and tribes will offer
suggestions, we frankly have little confidence that an acceptable
definition will emerge from this process.

The reconmendat ions, in the final analysis, treat symptoms of the
problem but do not cure the disease. The disease is an institutional
arrogance that pervades in many quarters of the Department. That
arrogance reached its zenith with the May 28 decisions when the
Secretary simply overruled the explicit direction of Congress as to
how the program would be conducted. We do not downplay the difficulty

859

of nieeting the Department's responsibilities in involving tribes and
states in the program. No doubt these responsibilities are
particularly difficult for an agency accustomed to operating in
secrecy and with disregard for the prerogatives of tribal, state and
local governments. Congress, however, made the judgment in passing
the Act that the public must be involved if the program is to
succeed. This judgment has proved prescient, and DOE's failure to
heed the views of the governments most involved in the process is
largely responsible for the poor state of the program.

There are indications that this attitude is changing. Recent
events suggest that the Department finally is heeding the good counsel
of those within DOE who advocate greater accomodation of state and
tribal concerns. The admonitions the program has received from
Congress clearly has had an effect. This change in attitude, however,
should not have required the damage that has been done to the program. '
A final observation concerns the unfortunate tendency for DOE
headquarters to reverse, modify or limit commitments made by the
project offices to the tribes and states. While the Tribe's
relationship with the Richland Operations Office is not ideal, it is
demonstrably better than our relationship with headquarters. We have
a greater ability to influence BWIP policies than headquarters
policies, but all too often have seen agreements with BWIP upset by
orders from above. Our confidence in the reliability of BWIP
decisions therefore is affected. This creates an unnecessary tension
in our relationship with the DOE personnel with whom we work most
closely.

860

We appreciate this opportunity to expand on the views expressed
at the February 4 hearing, and would be happy to respond to any other
questions the Conmittee cares to pose.

Respectfully submitted..

J. Herman Reuben, Chairman

Elliot Moffet, Secretary

Del T. White, Chairman
Nuclear Waste Subconmi ttee

861

ATl'A* ENT No. 1

022801

Fxon tin

' it.Z7 .2i 28139

Department of Energy

Richlind Opentionj Offlct

P.O. Box £50

Richtind, V/jihlnjton 99352

86-BHI-18

JUI- 2s ;9S3

Mr. J. Herman Reuben, Chairman
Nez Perce Tribal Executive Conmlttee
P. 0. Box 305
Lapwal, ID 83540

Dear Mr. Reuben:

CONSULTATION AND COOPERATION AGREEMENT

On Hay 28, 1986, the Department of Energy's reconvnendatlon of three sites in
fll iV^l'tVn.T^ wash ngton was approved for detailed site c ar ct z t Sn
for^a deep-mined geologic repository for high-level waste and spent nuclear

In accordance with Section 117(c) of the Nuclear Waste Policy Act of 1982 the
Oepar men desires to begin the process that would eventually lead to a sioned
Consultation and Cooperation (CiC) Agreement => tuaMy leaa lo a signed

Jh.t In.HH ""**=t1ng you In the near future to arrange for a time and place
Hpf^ro°^I^<' acceptable to each of the States and Indian Tribes. Should you
de re to discuss this matter with me. please do not hesitate to give meV

Sincerely,

BWI:OLO

0. L. Olson, Director

Basalt Waste Isolation Division

77-104 0-87

862

An^CHlENT No. 2

TRIBAL EXECUTIVE COMMITTEE

dctob=c 17, i986

(208) 843-2253

Mr. John Antonnen, Assistant Manager
Richland Operation Office
P.O. Box 550 •
Richland, NA 99352

Dear Mr. Antonnen:

For the past several months, DOE has had under
consideration certain questions concerning the right of
the affected tribes to conduct impact studies, to prepare
and submit an impact report and - should a tribe choose
to do so - to prepare and submit a request for impact
assistance under Section 118 of the NWPA. These matters
initially were raised _ during discussion between
representatives of DOE and the Umatilla program concerning
a consultation and cooperation agreement. More recently,
the issues have been discussed at length in the context
of FY '87 grant applications filed by Nez Perce and Umatilla.

The Nez Perce Tribe has two basic concerns regarding-
the issues. Let me first emphasize, however, that these
issues go to the very heart of tribal rights of participation
in the NWPA process. He are deeply concerned with what
we have come to regard as an affort by DOE to deny the tribes
the ability to participate meaningfully in the BWIP project.

Our concerns fall into two categories. The first
involves the substantive issues themselves. The indications

863

.^ir. John Antonne"
Page Two
October 17, 1986

we have gotten from BWIP personnel is that these issues
of statutory interpretation have been resolved against us.
After careful study of the substantive issues, we feel very
strongly that DOE is incorrect as a matter of law and
certainly as a matter of policy.

ou;: ce.cond concern is inti-..-- Laly related to thf Tirst
a::.0 gees to the ^^r.-ces... cl. rough which this deci.^iop. h<xs
been reached. While DOE personr-ei have advised us of their
conclusions and imposed those conclusions on the Tribe in
grant negotiations, we do not yet have any formal decision
document explaining the Department's" reasoning. in fact,
we have not formally received the decision itself. Moreover,'
the Department did not solicit our views on the matter before
making its. determination . Thus, we are left in the position
of responding to a Departmental decision made without our
imput, without any explanation and without any formal
communication of the decision.

As stated above, these issues are of critical importance
to the Tribe -s role in the program. The current situation
is unacceptable. We therefore make the following requests
and insist on a response within five working days:

1. We request that the BWIP office advise
us formally and in writing of its
preliminary decision on these issues and
the reasoning supporting the decision
on or before October 21, 1986.

2. We request that, if the Tribe so desires,
representatives of the Tribe and the BWIP
personnel involved in the decision meet
in formal session on or before November
7, 1986, to discuss our respective positions
on the issues.

3. We request a final decision on the issues
by BWIP, communicated formally and writing,
and including specific responses to any
comments the tribe presents to the
Department, on or before November 21,
1986.

4. If the decision is adverse to the Tribe,
we request that you refer the matter to

864

Page Three
October 17, 198fa

approprinte pf^rKominl at. DOT?. Hf^Hnijar ccr s
for a final Departmental decision. We
will prepare and submit a statement of
our position to be included in your
transmittal to DOE Headquarters. The
transmittal is to be made on or before
December 5, 1986.

5. We reque'='v. that you advi?5 Headquartars
that personnel who will be involved in
^hfe decision shc-^ld :neet with
represei.tntives of the Tribe before making
a final decision. This meeting should
be held on or before December 19, 1986,
and a final decision made by Headauarters
on or before December 31, 1986. The final
decision, of course, should be communicated
formally and in writing, and should include
both a complete statement of the reasoning
supporting the decision and specific
Departmental responses to comments and
arguments made by the Tribe.

We believe that these requests are consistent with
BWlP's current intentions. We find it necessary to' make
these requests formally, however, due to BWIP's seeming
reluctance to take a formal position, explain its position
and do so in a timely manner. The gravity and urgency of
these issues are too great for us to tolerate any longer
delayed and informal responses to Tribal concerns.

I would be happy to discuss the details of these requests
either in person or by telephone. I will insist, however,
that any agreements we make be confirmed in writing. Your
prompt consideration of this matter will be appreciated.

Sincerely,

Herman Reuben, Chairman
^ez Perce Tribal Executive Committee

R.T. HalCmoon, Manager, NP-NWPA
D.T. White, NW Subcommittee
L-8. Kevin Cover, Attorney
Hax Powell, Richland Operations

865

AT...JHIENT No. 3

Department of Energy

Washington. DC 20585

WOV 19 1985

Mr. J. Herman Reuben, Chairman
Nez Perce Tribal

Executive Committee
P.O. Box 305
Lapwai, Idaho 83540

Dear Mr. Reuben:

On May 28, 1986, President Reagan approved the Department of
Energy's (DOE) recommendation of three sites in Nevada, Texas,
and Washington for detailed site characterization for a deep-
mined geologic repository for high-level radioactive waste and
spent nuclear fuel.

In accordance with Section 117(c) of the Nuclear Waste Policy Act
of 1932 (the Act) , not later than 60 days following such approval
the Department was required to seek to enter into negotiations
leading toward consummation of a written binding consultation and
cooperation agreement. The provisions of such an agreement are
defined by the Act.

On July 25, 1986, Mr. Lee Olson, director of the Basalt Waste
Isolation Division at DOE's Richland Operations Office, wrote to
you recommending that we initiate the process of developing
consultation and cooperation agreements with a meeting of repre-
sentatives of all States, within which recommended sites are
located, and of all three affected Indian "tribes. Similar
letters were sent by our project offices to the three affected
States and to the other two affected Indian Tribes.

We learned from the States and Indian Tribes that negotiations
between the Department and the individual State and Tribal
nuclear waste offices might prove more fruitful than a general
meeting. Therefore, I am renewing the offer to initiate negotia-
tions for a consultation and cooperat:ion agreement, this time
between DOE and the Nez Perce Indian Tribe.

To facilitate the commencement of negotiations, the Office of
Civilian Radioactive Waste Management has designated a team to
negotiate with the Nez Perce Indian Tribe. This team will be led
bv Mr. John Anttonen, an assistant manager at the Richland _•
Operations Office. Mr. Anttonen will be contacting your office
shortly to discuss appropriate arrangements.

866

-2-

We look forward to the participation of the Nez Perce Ind<an Tribe
in this important statutory process. -^"^^-a.i i^ioe

Sincerely,

ien C. Rusche, Director
Office of Civilian Radioactive
Waste Kangement

867

— ATTACni-ENT No. 4

Decomber 10, 1906

nr. uen <_. Kusciie

100 Independence Avenue, Southwest

Forrestal nuilding

RW-4 0

Wasliington, DC 20505

Dear Mr. Rusche:

I am writing to raise with you a matter of serious
concrern to the Nez Perce Tribe. Specifically, I would
like to share with you my thoughts concerning the issue
of the Tribe's eligibility for impact assistance under
Section 118 (b) of the Nuclear Waste Policy Act and,
more generally, the state of the relationship between
the Tribe and the Department of Energy, with particular
emphasis on the consultation and cooperation process
anticipated by the HWPA.

The Tribe currently is in discussions with personnel
from DOE-Richland concerning our claimed right under
the tnvPA to conduct impact studies, prepare and submit
an impact report and assistance request, and receive
impact assistance. I understand that our attorney
lias written to you directly concerning this matter,
and that you are aware of the disucssions we are having
with Richland. According to our program staff, some
uncertainty exists as to whetlior Richland's decision
will be made without direction from headquarters. We
had hoped ii\itially to establish a otep-by-step process
of first eliciting an independent decision on the issue
from Ricliland and then, if that decision is not
satisfactory, appealing that decision to headquarters
where a second, cJe novo, review v;ould occur.

I now am advised by my staff that headquarters
apparently will be involved in the decision we are
to receive from Richland. VJcre we sure that the Richland

868

Mr. Ben C. Rusche
Page two
December 10, 1906

decision was going to be made independent of
headquarters, I v/ould defer this letter to a later
date. Because it appears that headquarters will
determine the Richland decision, and because of the
inuninence of the Richland decision, 1 am writing now.
I want to make clear to you our concerns and the
-importance that we attach to this issue. I believe
it is imperative that you and 1, as policy-makers,
communicate directly on this issue, without the
contentiousness that inheres when we call upon our
respective legal staffs.

In fact, my first observation concerning the issue
is that it is unfortunate that the lawyers have become
involved in what is first and foremost a policy issue.
1 have read our attoLney's analysis of this issue,
and find it to be persuasive. I am quite certain,
however, that if so Inclined, your attorneys could
produce an analysis equally persuasive to you yielding
the opposite conclusion. This leads me to believe
that, as a matter of law, the issue of the Tribe's
eligibility for impact assistance reasonably could
he decided either way. If that is so, then the guiding
considerations in the Department's decision should
be policy considerations. And the key policy principle,
my view, is that the participation of affected tribes
should be the broadest possible.

V7c are disappointed and frustrated with the
Department's conduct of the consultation and cooperation
requirements of tlie Act ii\ regard to tribal
participation. In my view, every time a debatable
issue concerning the breadth of tribal participation
arises, it is resolved against the Tribe. An
institutional bias against broad tribal participation
is evident in many program documents, not the least
of which is the draft internal guidelines for C & C
Agreements. WJion Departmental policies pledge broad
participatory rights, such pledges ring hollow in light
of t>te actions of the Department. Your pledges of
consultation and cooperation at some point must be
hacked by substantive actions evidencing real commitment
to the concept.

As you know, the tlez Perce Tribe to date has
eschewed litigation to resolve our grievances against
the Department. We also have been reluctant to commence

869

Mr. Ben C. Rusche
page three
December 10, 1986

a major legislative effort that would inhibit the
Department's execution of the NWPA. I sincerely hope
that our reluctance to pursue these avenues is not
interpreted as satisfaction with the conduct of the
program. In fact, we are deeply disappointed with
a pattern of Departmental decisions obvisously intended
to limit tribal participation to the bare minimiom.
VJhile our attorneys play an important role in our
program, we are unwilling to have them play the dominant
role so long as a real possibility exists that policy
issues can be resolved by discussions between
policy-makers .

It is for tliis reason that we are considering
carefully the initiation of negotiations with the
Department on the terms of a C & C Agreement. We have
been preparing for such an initiative for well over
a year, and are on the. verge of a final decision as
to whether to proceed. Quite frankly, the resolution
of the impact assistance issue will weigh heavily in
that decision. If the Department is unwilling to agree
to the Tribe's position on a matter so central to
our rights, of meaningful participation, the prospects
for negotiating an agreement guaranteeing a satisfactory
level of tribal participation are quite remote. If
the prospects for success in negotiations is remote,
it will be very difficult to justify to our constituents
a decision to proceed with such negotiations.

I believe that the Tribe's relationship with the
Department is at a crossroads. Our program has matured
and our expectations for Departmental efforts to consult
and cooperate are very high. It is a fortuitous time
for a key issue to arise, as the resolution of that
issue \/ill tell us much about how our relationship
should proceed in the future. I urge you to seek a
decision that will give us cause to believe that our
existing policy of cooperation not confrontation is
in the best interest of the Tribe. I urge you further
to please respond to this issue by early January or
within the next thirty days.

Sincerely yours,

J. Herman Reuben, Chairman
tJPTEC

JHR:ceg

cc: F.lliott Hoffott, NPTEC Secretary

B. Kevin Cover, Tribal Attornev
Ronald T. Halfmoon, Manager, NP-NWPA

870

The Honorable John Herrington
Page Two
December 15, 1986

1. The Tribe has a critical interest in
maintaining the environmental integrity
of the Columbia River and its tributaries,
and Departmental activities at Hanford
should be designed to avoid adverse impacts
on the River.

2. The Tribe has critical interest in
protecting the natural resources in the
Tribe's possessory and usage rights area,
and Departmental activities at Hanford
should be designed to avoid adverse impacts
on those resources.

3. By virtue of its treaties with the United
States, the Tribe has prior and' paramount
reserved rights to certain natural
resources, and the Department is obliged
to take all reasonable measures to avoid
harm to those resources.

4. As acknowledged in the President's policy
statement of January, 1983; a government
-to-government relationship exists between
the United States and the Tribe under
which the United States is obliged to
protect and enhance the proprietary and
governmental rights of the Tribe.

5. The provisions of Section 117 (c) do not
constitute a limitation on the contents
of a CfirC Agreement; all issues arising
from the NWPA program are open for
discussion in C&C negotiations.

Finally, we wish to advise you that before
we will engage in discussions on the contents of
an agreement, rules for the conduct of negotiations
must be agreed upon. We will insist that transcripts
of negotiations be made. Furthermore, we will insist
upon procedures for the prompt ratification of
agreements reached in discussions between Tribal
and Department negotiations by the Nez Perce Tribal
Executive Committee and DOE headquarters,
respectively. v;e believe such procedures are
necessary to facilitate the efficient disposition
of issues during negotiations.

871

The Honorable John Herrington
Page Three
December 15, 1986

In taking this step, we are mindful that many
problems exist in our relationship with the
Department. There are, however, concerns common
to us. We both, for example, seek to ensure the
health and safety of the public during the
Department's activities at the Hanford Reservation.
We are hopeful that C&C negotiations will result
in a mutually beneficial arrangement for the
advancement of both of our interests.

Sincerely,

/'y. firman Reuben, Chairman
,'^PTEC

JHR:ceg

cc: Ben Rusche

Stephen Kale
John Antonnen
B. Kevin Cover
Dan Hester

ejttb^f'

Elliott L. Moffett, Secretary
NPTEC

872

NP a7-7£

re:solutioh

4EREAS, the Ne= Perce Tribal Executive Comriiittee has beeri
empowei-ed to act for and in behalf of the He3 Pv^rce
Tribe, pursuant to the Revised Constitution and By-
Lave, adopted by the General Council of the (•/es Pex'ce
Tribe on May 6. 1961 and approved by the Actinq
Commissioner of Indian Affairs on June 27, 1961; and

^EREAS, the Nuclear" Waste Policy Act of 10S2 (*MWPa*>
established a procedure by which tvo sites for the
permanent creoiogic disposal of nigh-level civilian ana
defense radioactive uaiste would be identified,
investigated, developed, constructed and operated; and

IEREaS, the Department of Energy (D'JE) was assigned primary
reEponsiblli ty £<Dr carrying out the provisions of the
NWPA; and

HEREAS, the NWPA requires broad public participation in the
process of developing a repository, including formal
participation by Indian tribal governments whose
interests might substantially and adversely be affected
by the investigation, development, construction or
operation of a repository at any given site; and

lEREAS, the Hanford Reservation in Washington is one of three
sites being characteriiied to determine its suitability
as a repository for the permanent disposal of high-
level radioactive waste; and

JEREAS, the characteri-ation, development, construction and
operation of a repository at the Hanford Reservation
substantially and adversely may affect rights
guaranteed by treaty to the Nez Perce Tribe, the health
and safety of tribal constituents, the social and
economic well-being of the Tribe and its constituents,
and the quality of the environment in tribal interest
^reas ; and

•iEREAS, the Ne= Perce Tribe therefore has been designated an
affected tribe under thie NWPA; and

lEREAS, the tribe currently is engaged in discussions with the
Department of Energy to resolve the issue of whether
the Tribe may conduct impact studies, prepare and
submit to Congress an impact report and request for
impact aeeletance, and to receive assistance designed

» B7-75
IGE 1

873

includirig, without liwi tation, the Sc-cretary oi Energy,
the Director oi x.he Cfiice oi Civilian Radioactiv*
Waste Management, the Director oi the Ox'iice oi
Geologic Repoeitories and the Director oi the Sasalt
Waste Isolation Project.

CERTIrlCATION

The foregoing resolution was duly- adopted by the HPTEC Meeting in
Special Session, December 15, 19u6, in the Richard A.
Halfinoon Council Chambers, Lapwai, Idaho, a quorutr. oi
its Members being present and voting.

ELLIOTT b. MOFFETT, SECKETaRY

^TTE2T!

,K/HERMAN REUBEN, CHaTRMAN

-JP 87-75
*AGE 3

874

HP ii7-7£

RESOLUTION

WHESEAS, thi? Hes Perce Tribal Executive Committee hoe boen
empowered to act for and In behaii oz" the Kes Perce
Tribe, pursuant to the Revised Constitution and fiy-
Lawe, adopted by the General Council of the Nes Perce
Tribe on May 6, 19ei and approved by the Acting
Commissioner of Indian Affairs on June 27, i9Si; and

WHEREAS, the Nuclear Waste Policy Act of l-jui <HWPA) eatabiiened
a procedure by which- two sites for the permanent
geologic disposal of nigh level civilian ana defense
radioactive waste would be identified, ivestigated,
developed, constructed and operated; and

WHEREAS, the Department of Energy (DOE) was assigned primary
responsibility iinr carrying out the provisions of the
NWPA; and

WHEREAS, the NWPA requires broad public participation in the
process of deve:loping a repository, including formal
participa-tion by Indian tribal governmenta whose
interests might substantially and adversely be affected
by the investigation, development, construction or
operation of a repository at -any given site; and

WHEREAS, the Hanford Reservation in Washington is one of three
sites being characterised to determine its suitability
as a repository for the permanent disposal of high-
level radioactive waste; and

WHEREAS, the characterisation, development, construction and
operation of a repository at the Hanford Reservation
substantially and adversely may affect rights
guaranteed by treaty to the Nes Perce Tribe, the health
and safety of tribal constituents, the social and
economic well-being of the Tribe and its conctltuents,
and the quality of the environment in tribal interest
areas; and

WHEREAS, the Ne= Perce Tribe therefore has been designated an

affected tribe under the NWPA; and

rfHEREAS, the NWPA authorizes the negotiation and execution of
binding and enforceable agreements between affected
tribes' and DOE, such agreements being intended to
govern the process of consultation and cooperation <C t
C) between the tribes and DOE; and

•IP 87-76
»AGt 1

875

nominatlcjri, r ecamMeridatlari CiT- approval ol t^i-^ Haniord
£it.e for characterisation; the issuance of
environmental assessments for the Hanford, Yucca
Mountain and Deaf Smith County Sites; the preliminary
determination of Hanford's suitability for development
as a repository: and the decision to postpose
indefinitely site-specific work on the siting, of a
second repository; and nothing in this resolution shall
be interpreted to waive, abrograte, limit, diminish or
modify any right claimed by the Tribe, including rights
of action, rights of access to the courts and United
States Government for the redress of grievances.

C E R T I F

CATION

The foregoing resolution was duly adopted by the HPTEC Meeting in

Special Session, December 15, 19Cti, in the Richard A.

Halfmoon Council Chambers, Lapwai, Idaho, a- quorum of
its Members being present and voting.

BY;

ELLIOTT

MOFFETT, SECRETARY

J^/^tRMAN R

EUBEN, 'CHATRMAN

NP 87-76
PAGE 4

876

Department of Energy

Richland Ooerations Office
P.O. Eox 550
Ricnisnd. Washington 99352 87-AIC-7

January 29, 1987

Mr. J. Herran Re'jben, Chainnan
Nex Perca Tribal Executive Ccmnittee
?. 0. Eox 305
Lapwai, ID 83540

Dear Mr. Rs'jben:.

iMpz-cr assistance:

The Depamtienc of Energy (DCE) has determined that "affected Indian Triies,"
as defined by the Nuclear Waste Policy Act of 1982 (the Act) Section
2 (2) (3) , are eligible to receive financial assistance to de'/elop a report
requesting impact assistance under Section 118(b) (2) (A) (ii) of the Act.
Furtherrrore, if the Hanford Site is finally selected as a site for
construction of a repository, then the Departroent of the Interior designated
affected Indian Tribes for the Hanford Site would be eligible for financial
and technical impact assistance (to address impacts of repository
develcp-.ent) under Section 118(b) (3) (A) and (B) of the Act.

Affected Indian Tribes are eligible to receive financial assistance during
site characterization for the purpose of preparing an Impact assistance
report; however, as with all affected parties, financial impact assistance
pavTr.e-.t3 would not commence until after the initiation of construction
activities at such site, in accordance with the Act. The Department
realises that affected parties are also concerned about potential adverse
impacts stemming from DOE's site characterization activities. During site
characterization, DOE will be conducting its activities in a manner that
minimizes, to the maximum extent practicable, any significant adverse
envircrirantal impacts in accordance with Section 113'(a) of the Act.
.Although DCE dees not anticipate any significant adverse impacts as a result
of site characterization activities, should adverse impacts occur during
site characterization, DCE would propose to address such impacts, in
consultation with affected parties, via direct technical assistance.

?3 DOE carries out the Congressional mandate to develop a nuclear waste
repository, the Depart-ment intends to ensure that the Nez Perce Tribal
interests are protected. I realize that you have written letters to both
Secretary Herrington and Mr. Een Rusche, Director of the Office of Civilian
Radioactive Waste Management, in which you expressed additional concerns
about DCE and Nez Perce relations. Mr. Rusche will be responding to those
concerns in a separate letter to you.

877

Mr. J. Heni^an Reuben

-2-

[JAN 2 3 ::j)-

If you have questions about either this letter specifically or other is3u5=,
please call me or Kx. Max Powell of my staff at '(509) 376-5267. I~lcoic
f;r/.-arci tD fut'jre discussions with you about our program.

Sincsrelv,

Johrt H. Anttonen, .Assistant Manager
for Ccirmercial Nuclear Waste

878

Mr. Ben C. Rusche, Director
Pa<7e Two
January 14, 1987

My second basis for concern goes to the process by
which the Department intends to resolve the issue. The
Tribe has objected frequently to the Department's practice
of making important decisions concerning Tribal rights
of participation behind closed doors and without consulting
the Tribe. We raised this concern most recently in the
context of the Department's consideration of the question
of whether the Tribe is eligible for impact assistance
under Section 118(b). I am most disappointed to find myself
again having to raise with the Department its obligation
to consult so soon after the last reminder.

We must insist that this question be resolved in
consultation with the Tribe. As you know, we recently
advised Secretary Herrington of our willingness to begin
C & C negotiations under certain conditions. One of -those
conditions • is an acknowledgement by the Secretary that
Section 117(c) is not an all-inclusive listing of the
provisions that may be contained in a C & C Agreement. Now
we learn that the Department has doubts that the Agreement
can include even all the items listed.

I view this as a profoundly negative development. Each
such occurrence lessens my faith in the Department's
commitment to the principle of broad tribal participation
embodied in the Act, An unfavorable resolution of the
Section 117(c) issue makes it virtually impossible for
the Nez Perce Tribal Executive Committee to justify to
its constituents the commencement of C S C negotiations.

I suggest that representatives of the Tribe and the
Department, perhaps including you and I, should meet to
discuss this critical issue. I hope that you can respond
quickly to this request. We are in the process of preparing
our Section 117(c) report to Congress on the progress towards
a C & C Agreement. I hope very much to be able to report

879

Mr. Ben C. Rusche, Director
Page Three
January 14, 1987

Sincerely,

■Atfv. J. Herman Reuben, Chairman
NPTEC

JIIR:ceg

cc: The Honorable John Harrington
Barry Gale
Max Powell, DOE-RL
Lee Olson, DOE-RL
John Anttonen, DOE-RL
William Burke, CTUIR
B. Kevin Cover
Dan Hester
Ronald T. Half moon

880

Department of Energy

Washington. DC 20585

F£B 1 3 J987

Mr. J. Herman Reuben, Chairman
Nez Perce Tribal Executive Committee
P.O. Box 305
Lapwai, Idaho 83540

-Dear Mr. Reuben:

Thank you for your December 10, 1986, letter concerning the issue
of the Nez Perce Tribe's eligibility for impact assistance under
Section 118(b) of the Nuclear Waste Policy Act of 1982 (the Act)
and your January 14, 1987, letter concerning the inclusion of
Indian Tribes in all eleven elements listed in Section 117(c) of
the Act. The Department of Energy has also received your
December 15, 1986, letter to Secretary Herrington requesting the
initiation of negotiations on the provisions of a Consultation
and Cooperation (C&C) Agreement between the Nez Perce Tribe and
the Department of Energy. Secretary Herrington has as)ced me to
respond to your letters.

As Mr. John Anttonen, Assistant Manager for Commercial Nuclear
Waste at the Department's Richland Operations Office, informed
you by letter dated January 29, 1987, the Department has
determined that "affected Indian Tribes," as defined in
Section 2(2) (B) of the Act, are eligible to receive financial
assistance to develop a report requesting impact assistance under
Section 118 (b) (2) (A) (ii) of the Act. Furthermore, if the Hanford
site is finally selected and receives Nuclear Regulatory
Commission authorization for constructing a repository, then the
Department of the Interior designated affected Indian Tribes for
the Hanford site would be eligible for financial and technical
impact assistance (to address impacts of repository development)
under Section 118(b)(3)(A) and (B) of the Act.

Both Secretary Herrington and I recognize the importance of the
consultation and cooperation requirements of the Act. The
success of the waste-management program may depend largely on the
success of institutional relations as well as interactions with
the public. We intend to use the extended schedule described in
the Draft Mission Plan Amendment to increase our efforts in
consulting with the States and affected Indian Tribes. You have
raised some very important issues in the principles and attached
resolutions you have submitted, and we would li)ce to carefully
explore those issues with you through the consultation and
cooperation mechanism provided by the Act.

881

-2-

Regarding the issue of whether the eleven items listed in
Section 117(c) of the Act may be included in a C&C Agreement
between the Department and affected Indian Tribes, I would like
to offer the following clarification. The Department considers
it appropriate to negotiate on any issues of concern to the
Indian Tribes in arriving at a completed C&C Agreement.

The Department looks forward to entering into C&C negotiations
with the Nez Perce Indian Tribe. The Department's Richland
Operations Office will be contacting the Nez Perce Indian Tribe
to arrange an initial meeting. Transcripts of negotiation
discussions may be made, as has been done in other C&C
negotiations in which DOE has participated. The Department
shares the Nez Perce Indian Tribe's goal that we reach prompt
resolution of issues and complete an agreement as soon as
possible.

As the Department and the Nez Perce Indian Tribe work together on
this important national program, I assure you that the Department
is committed to enhanced programs leading to improved
institutional relations and negotiated C&C Agreements.

Sincerely,

I6s^<2 Ai^'^

Ben C. Rusche, Director
Office of Civilian Radioactive
Waste Management

882
Appendix III

Responses to Additional Committee
Questions From the February 5, 1987 Hearing

POST-HEARING QUESTIONS AND ANSWERS
RELATING TO THE HEARING OF FEBRUARY 5, 1987

BEFORE THE

COMMITTEE ON ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE

WITNESS: BEN C. RUSCHE, DIRECTOR

OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT

U.S. DEPARTMENT OF ENERGY

883

QUESTIONS FROM SENATOR WIRTH

QUESTION 1: In assessing and comparing the first-round sites'
suitability for site characterization and
development as repositories, did the Department
conduct route-specific analyses to assess the costs
and risks of transporting high level nuclear waste
from reactor or temporary storage sites to a
particular repository?

ANSWER:

No, DOE did not conduct route specific analyses to
assess the cost and risk of transporting either
defense high level nuclear waste (DHLW) or spent
fuel from DHLW generators and commercial reactors,
respectively, to any potential candidate repository
sites. However, actual routes generated by the
routing codes HIGHWAY (truck transport) and
INTERLINE (rail transport) at Oak Ridge National
Laboratory were used to determine certain parameter
values for the risk analyses. These parameters
were the distance traveled per shipment and the
fractions of travel in urban, • suburban, and rural
zones. Unit-risk factors generated by RADTRAN-III
were combined with the actual route data for each
origin-destination pair. The highway routes
selected are consistent with DOT regulations.
Another slightly different approach using "great
circle distances", was used to generate distance
parameters for WASTES II, a transportation
logistics code developed at Pacific Northwest
Laboratory which was used to carry out the cost
analyses contained in the Environmental

884

- 2 -

Assessments. The two methods give values for total
distance traveled that differ by less than 10%.

885

QUESTIONS FROM SENATOR WIRTH

QUESTION 2:

If the answer to the preceding question is "no,"
did the Department in any other way identify and
consider risks and costs specific to certain
routes, states, or regions. For example, near the
Vail Interchange on Interstate 70 west of Denver,
the accident rate for large trucks is thirty-four
times greater than the national average. Were
factors such as this, which obviously affect the
risk of accidents, considered by the Department in
preparing the environmental assessments on the
first-round repository sites?

ANSWER:

No, but the effect of changes in accident-related
parameter values, including accident rate, has been
examined in a recent Sandia study for a sample
problem involving the truck transport of spent fuel
from the Crystal River reactor in Florida to the
candidate repository site near Hanford, WA, a one-
way distance of 4817km. Total route
characteristics are examined. For example, the
effect of doubling the accident rate over the
entire route was found to increase the accident
risk by a factor of about 1.9. Clearly, the
occurrence of small segments of highway (such as
the Vail interchange) with high accident rates
would not raise the average accident rate over the
total length of the route by a factor of two. In
this sense the analysis puts upper bounds on the
effects on risk of variation in accident rate and
other important accident-related parameters.
However, segment -by-segment analyses that would
identify high risk could have not been performed by

886

- 2 -
the DOE. The States and Indian Tribes, however, as
part of the designation of alternate preferred
routes under DOT routing regulations, commonly
referred to as HM-164, may examine risks on small
segments of highway.

887

QUESTIONS FROM SENATOR WIRTH

QUESTION 3:

Has the Department of Energy, or any other federal
agency, ever tested to failure any of the shipping
casks currently being used to ship high level
nuclear waste? if so, please provide the results
and documentation of such tests.

ANSWER:

No, but the cask certification test sequence
specified by the Nuclear Regulatory Commission
(NRC) for Type B packagings does not require that
casks be tested to failure. However, Sandia has
subjected spent fuel casks to tests that were more
extreme than those required by the NRC. For
example, the regulatory fire test calls for a 30
minute exposure to engulfing flames at 8 00° F. A
lead shielded cask of a type now in use was fire
tested at Sandia to the point of lead melt. This
test was terminated after 100 minutes, over 3 times
the regulatory fire duration. Longer exposure
could have led to reduced shielding because of lead
leakage through small fractures on the outer
surface of the cask. However, had this test been an
actual accident, no release of contents would have
occurred because the containment system of the cask
did not fail. This illustrates why testing to
failure is not required. Because of the high level
of accident damage resistance built into casks as a
result of their being designed to meet national
(NRC) and international (International Atomic
Energy Agency [IAEA]) hypothetical accident tests.

888

- 2 -
failure conditions far exceed conditions that
can be actually expected to occur even in very
severe accidents.

889

QUESTIONS FROM SENATOR WIRTH

QUESTION 4: The Department of Energy, through the Sandia

National Laboratories, has subjected shipping casks
to a "drop" test and to a fire test, to determine
whether these accident conditions would breach the
containment system. Has the Department ever
subjected a cask, under conditions simulating those
that would obtain if the cask contained spent fuel,
to a test simultaneously involving both a fire and
a puncture? If so, please provide the results and
documentation of such tests.

ANSWER:

No such tests have been done because it is not
typical of accident experience. The test sequence
specified by the NRC requires that a cask be
subjected sequentially to a drop test, puncture
test, and fire test, in that order. The order is
in part a result of the observation that in actual
accidents, an impact type insult to a package
typically precedes any fire that might occur as a
result of, for example, ignition of fuel leaking
from a damaged tank. In many accident scenarios
(e.g. collision of truck carrying a spent fuel cask
with a gasoline tank truck) , impact-related damage
is the means by which flammable materials are
released. Scenarios in which impact-type insult to
a cask might occur after or during a fire are
difficult to realize. Thus, the NRC test sequence
reflects not only the types of damage a cask might
sustain, but the sequence in which they are most
likely to occur.

890

QUESTIONS FROM SENATOR WIRTH

QUESTION 5: As you may know, many experts and citizens are
concerned that current Nuclear Regxilatory
Commission regulations permit new cask designs to
be certified through the use of analytical methods
rather than by actual performance of the tests on
sample casks. Will the Department require use of
actual tests in selecting casks to be used in
shipments of nuclear waste under the Nuclear Waste
Policy Act of 1982?

ANSWER:

Consistent with Nuclear Regulatory Commission (NRC)
regulations (specified in 10 CFR 71.71 and 71.73),
the Office of Civilian Radioactive Waste Management
(OCRWM) will evaluate the performance of casks to
be used for NWPA transportation by using
engineering analyses and by testing scale-models of
casks. The OCRWM does not believe that
confirmatory, demonstration testing of full-scale
prototype casks under conditions that exceed the
NRC's test requirements is necessary to verify safe
cask designs. The OCRWM plans, however, to
consider the use of confirmatory testing as a
method for fostering better understanding in waste-
management activities and promoting public
confidence in the safety of NWPA transportation.
The OCRWM will determine whether confirmatory tests
of prototype casks can be used effectively in the
NWPA cask-development program following an
evaluation of estimated test costs and continued
interaction with interested parties to determine
the ability to gain national consensus on

891

- 2 -
accepteible test conditions. Congress, of course,
would have to appropriate funds for this purpose.

892

QUESTIONS FROM SENATOR WIRTH

QUESTION 6: Will the Department require all casks used to

transport waste under the Act to be certified by
the Nuclear Reg-Jlatory Commission, or will the
Department continue to rely on its own standards,
which it determines to be "substantially
equivalent" to NRC standards?

ANSWER:

The OCRWM will use casks that are certified by the
NRC for all shipments of nuclear waste to NWPA
facilities. Such an intention has been announced
in (1) a procedural agreement with the NRC that
provides that casks approved by the NRC will be
used for shipments of radioactive waste from NRC-
facilities to NWPA facilities (Federal Register,
Vol. 48, p. 51875, November 14, 1983), and (2) a
formal agreement reached by the OCRWM and the DOE's
Office of Defense Programs on July 1, 1986 that
provides (in part) that waste generated in national
defense activities will be transported by the OCRWM
to repositories in casks certified by the NRC.

893

QUESTIONS FROM SENATOR WIRTIf "'

QUESTION 7: Will the Department subject shipments of waste

generated in the defense program to precisely the
seune safety standards as are applied to shipments
of civilian generated waste under the Nuclear Waste
Policy Act?

ANSWER: All shipments made by the DOE will be made with
equivalent levels of safety.

77-104 0-87-29

894

QUESTIONS FROM SENATOR WIRTK

QUESTION 8: The state of Illinois has adopted what many view as
a model state law rsgulating transportation of high
level waste. The law provides for prenotification,
inspection, police escorts, and other important
safeguards. Recently, the Department of
Transportation upheld the Illinois statute against
a challenge brought under the Hazardous Materials
Transportation Act. However, the Department of
Energy hi-.s appealed that ruling. Please explain in
detail the Department's rationale for challenging a
state law that the Department of Transportation,
and many states, view as a reasonable regulation of
high level nuclear waste transportation. In so
doing, please state precisely which provisions of
the Illinois statute the Department is challenging.

ANSWER:

The DOE believes that Section 4(7) of the Illinois
Nuclear Safety Preparedness Act — which imposes a
fee of $1000 per cask of spent fuel shipped within
or through the State of Illinois — is inconsistent
with and therefore preempted by the Hazardous
Materials Transportation Act (HMTA) , 49 U.S.C. 1801
et seq. , and implementing Hazardous Materials
Regulations. The DOE believes that the Illinois
transit fee stands as an obstacle to Congressional
goals in enacting the HMTA, which were to protect the
nation against the risks inherent in the transport
of hazardous materials, and to preclude a
multiplicity of State and local regulations and the
potential for varying as well as conflicting
regulations for hazardous materials transport.

The DOE presented its position in comments submitted
to the Department of Transportation (DOT) during

895

- 2 -
the DOT'S administrative review of the Illinois
transit fee for its consistency with Federal law,
and in a subsequent appeal of the DOT'S finding of
consistency (Inconsistency Ruling No. IR-17,
Federal Register, Vol. 20926, June 9, 1986). As
stated in such comments, the OCRWM believes that
the Illinois transit fee stands as an obstacle to
the accomplishment of the objectives of HMTA
because it redirects, restricts, and delays ship-
ments of spent fuel transportation and therefore
increases transportation risks, and, if allowed to
stand, will encourage other jurisdictions to enact
similar requirements and increase regulatory
multiplicity.

As further noted in its comments to the DOT, the
DOE also believes that the transit fee discrimi-
nates unfairly against the transport of spent
nuclear fuel. The DOT stated in an earlier
inconsistency ruling that shipments of spent
nuclear fuel, based on both shipment frequency and
accident history, pose a much lower risk of
transportation accident than do any number of
coDimon chemicals (IR-15, Federal Register, Vol. 49,
p. 46663, November 27, 1984). Similarly, the
Office of Technology Assessment, concluded in The
Transportation of Hazardous Materials (July 1986)

896

- 3 -
that "NRC performance standards yield spent fuel
shipping cask design specifications that provide
for a very high level of pxiblic protection — much
greater than that afforded in any other current
hazardous materials shipping activity." The DOE
supports such conclusions and believes that the
State of Illinois has unfairly singled out spent
fuel transport by imposing a burdensome fee and a
complex, time-consuming, and duplicative regulatory
program.

897

QUESTIONS FROM SENATOR WIRTH

QUESTION 9;

ANSWER:

Even though dry cask storage systems now are
commercially availaible, the Department states at
page 10 of the draft Mission Plan Amendments that an
MRS facility would still be superior to reliance
upon dry cask storage because the MRS would be "an
integral and productive component of the waste
management system rather than a temporary reactor-
specific expedient." Has the Department done a
cost comparison of a system using at-reactor
storage in dry casks until the first repository is
available to process and emplace waste, and a
system using the MRS?

The Department has evaluated expanded storage at
reactor sites as an option for improving the no-MRS
system. The results of this evaluation are
contained in Volume 2 of the December 1985 Review-
Copy of the Department's proposal to Congress on MRS
and do contain cost estimates. In that document,
the Department estimated that a waste system with an
MRS beginning operations in 1996 and with an on-time
(1998) repository would avoid at-reactor storage
costs of $150-$450 million compared to a waste
system with no MRS. This cost figure assumed that
the MRS would provide about 4,000 tons of avoided
at-reactor storage. The Department further
projected the MRS could save utilities $0.6 billion
to $1.7 billion if all 15,000 MTU of MRS spent fuel
storage capacity were to replace additional at-
reactor storage. In making these estimates, the
Department assumed that maximum reracking of
utilities' spent fuel pools would have already
occurred. The lower end of these cost ranges

898

- 2 -

ANSWER 9: (Cont'd)

accounts for in-pool rod consolidation which remains
to be demonstrated on a large scale. The upper end
accounts for storage of unconsolidated fuel
assemblies in metal storage casks. Under the
illustrative waste acceptance schedule contained in
the draft Mission Plan Amendment, which reflects a
5- year delay in the schedule for operation of the
first repository, the projected additional at-
reactor storage needs would exceed even the MRS ' s
15,000 MTU storage capacity. Therefore the higher
cost range values of $0.6 billion - $1.7 billion are
possibly conservative estimates for the cost of at-
reactor storage of spent fuel for a waste system
with no MRS and a repository which starts receiving
spent fuel in the year 2003.

Storage is only one cost component of the MRS. The
major projected MRS costs are associated with its
proposed packaging role, a role that would be very
expensive and impractical to accomplish at reactor
sites. Packaging done at the MRS would
significantly reduce packaging efforts that would
otherwise be performed at the repository and would
reduce repository costs accordingly.

QUESTION 10!

899

QUESTIONS FROM SENATOR WIRTH

Has the Department compared the risks, costs, and
impacts of at-reactor storage versus the risks,
costs, and impacts of an MRS facility?

ANSWER:

The Department has evaluated the alternatives for
providing additional at-reactor storage capacity as
a means of improving a waste system with no MRS.
The options that are feasible range from modifying
or reallocating existing spent-fuel storage
capacity (i.e. reracking, transshipment or
consolidation) to adding new onsite storage
capacity (e.g., dry storage casks or vaults,). The
Department estimates the cost of providing at-
reactor contingency storage (after reracking has
already occurred to the maximum extent possible) to
range from $40/kgU * (kilogram of uranium) to
$110/kgU. The low-end of this range corresponds to
storage costs when in-pool fuel consolidation and
storage is used and the high end of this range
corresponds to dry storage of unconsolidated fuel
in storage casks or vaults. By comparison, the unit
costs for contingency storage at an MRS facility
range from $35/kgU to $40/kgU. The lower unit cost
of storage at the MRS facility results from
economies of scale, and the narrower range of cost
arises from the use of a single storage method.

♦Estimates for in-pool consolidation and storage
remain highly uncertain with claims that these cost
could be as low as $10/kgU or as high as $100/kgU.

900

- 2 -

From a system risk standpoint, additional at-
reactor storaga would result in higher occupational
radiological exposure at reactors and would have an

uncertain affect on public dose compared to an MRS
system.

As indicated in the answer to the previous
question, however, the proposed MRS functions go
well beyond that of simply providing storage.

901

QUESTION 11!

QUESTIONS FROM SENATOR WIRTH

If Congress does not authorize construction of the
MRS facility, how will the Department meet its
commitment to accept title to spent fuel in 1998,
as required by the Nuclear Waste Policy Act,
given the five-year extension in repository
construction envisioned in the draft Mission Plan
Amendments?

ANSWER:

Given the five-year extension in the repository
schedule, if Congress does not authorize
construction of the MRS the Department would have
no authorized facilities available to accept
spent fuel in 1998. The utilities would continue
to be responsible for storing the spent fuel at
the reactor sites.

902

QUESTIONS FROM SENATOR WIRTH

QUESTION 12: Th« draft Kisaion Plan Amendiflent, at page 18,
states that tha site selection process for the.
first-round repository began in the late 1970s.
The Nuclear Waste Policy Act was not enacted into
law until 1933. !-7hat criteria, standards, and
guidelines did the Department use in the screening
process that occurrad prior to enactment of the
Nuclear Waste Policy Act? How did those criteria,
guidelines, and standards compare to the guidelines
promulgated in December 1984, pursuant to the
Nuclear Waste Policy Act?

ANSWER: Prior to the passage of the Act, the DOE relied on
criteria used earlier in the National Waste Termi-
nal Storage (NWTS) Program, including its own
program objectives, system performance criteria,
and site performance criteria; other sets of
criteria defined for geologic repositories by the
National Academy of Sciences, the International
Atomic Energy Agency, and earlier programs in the
United States; and existing and proposed (at the
time) regulations of the Nuclear Regulatory Commis-
sion and the Environmental Protection Agency.
References for all these criteria may be found in
the suppleiaentary information (also referred to as
the "preamble" and the "statement of basis and
purpose") published with the final DOE siting
guidelines.

With regard to how the guidelines compare with
these criteria, the guidelines integrated the then-
existing criteria into its recpiirements and

903

- 2 -

procedures, and thus are fully consistent and
compatible.

For example, great care was taken to make the
guidelines compatible with existing applicable
regulations of the NRC and the EPA. In fact, the
guidelines refer frequently to these criteria and
standards through direct quotations and paraphras-
ing. That the guidelines are consistent with the
NEC's own technical criteria (codified as 10 CFR
Part 60) was attested to by the NRC Commissioners
in their final concurrence decision (49 FR 28130,
July 10, 1984) .

There are a number of distinguishing features
between guidelines and other sets of criteria for
repository siting that have' been proposed that
serve to make the guidelines far more comprehensive
and explicit. Several of these are listed below.

o The guidelines incorporate the requirements of
the Act, which are quite specific in some
instances (e.g., population density criteria)
and require the DOE to specify "factors that
qualify or disqualify any site from development
as a repository." This latter requirement led
to the specification of 24 qualifying conditions
for the system and technical guidelines and 17

904

- 3 -

disqualifying conditions. None of the aforemen-
tioned sets of criteria are so specific and
explicit.

o The guidelines are presented in three major
categories: implementation guidelines, post-
closure guidelines, and preclosure guidelines.
Previous sets of siting criteria have emphasized
only the postclosure-type guidelines, such as
geohydrology and geochemistry, since the primary
and distinguishing puposed of a geologic reposi-
tory is to provide for the long-term protection
of public health and safety. The guidelines
maintained this emphasis on postclosure perfor-
mance while also introducing a number of
innovative concepts in regard to preclosure
siting criteria and general rules and procedures
guiding the implementation of the other guide-
lines. These essentially fresh ideas were
necessitated by the requirements of the Act and
attempts to be responsive to general issues
raised in the consultation, comment, and concur-
rence process on the guidelines. Several
examples will clarify the point. Preclosure
guidelines not previously emphasized in other
sets of criteria include those on socioeconomics
and waste transportation. General rules to be

905

- 4 -
followed during siting introduced into the
guidelines include provisions on diversity of
geohydrologic settings and a qualitative
weighting system.

o The guidelines include as an appendix the kinds
of information necessary for DOE to make deci-
sions on the nomination and recommendation of
sites as suitable for characterization.

906

QUESTIONS FROM SENATOR WIRTH

QUESTION 13:

It appears that in the Transportation Appendix to
the five environmental analyses, the Department
used estimates of release fractions in the event of
a catastrophic accident that were initially
formulated by the participants in a workshop held
at Sandia Laboratories in 1980. The results of
that workshop were reported in SAND80-2012.
Several months after the workshop, there was an
unexpected release of re-oxidized fuel pellet
particles when a cask was unloaded underwater at
the Battelle Laboratories in Columbus, Ohio. In
that incident, the reported contamination was much
higher than would have been expected. Please
explain why the levels of contamination released
during this incident did not cause the Department
to reformulate the release fractions one would
anticipate in the event of a catastrophic
transportation accident.

ANSWER:

The Battelle Columbus incident does not affect the
workshop results. The model adopted in the
workshop report includes a two-stage approach. It
considers (a) mechanisms for release of fuel
radionuclides into the cask cavity (e.g., crud
particulates, material from failed fuel and from
fuel damaged as a result of an accident) , and (b)
mechanism for release of material in the cavity to
the external environment. Material released into
the cavity from failed fuel could not be released
during transport in the absence of a severe
accident. The report specifically accounts for the
expected fraction of failed fuel elements.

Even the most severe accident, however, would not
result in release fractions equivalent to those
resulting from removing the lid on a cask

907

- 2 -

containing failed fuel without appropriate
precautions being taken. In contrast the largest
opening that could be expected to be made in a cask
is about one square inch in area as a result of the
highest severity of transportation accident.
Making a transport accident more serious is the
fact that such an accident would include a severe
fire (i.e., a fire more severe than the regulatory
fire) . The dispersal pathways and exposure of the
public in such an accident would be wider than
those in an incident inside a facility such as
Battelle Columbus.

The fact that the total amount of contamination
released may have exceeded estimates from the
workshop, in which transport accidents were
addressed, does not affect either the value of the
workshop results or the logical basis from which
the workshop model was developed.

908

QUESTIONS FROM SENATOR WIRTH

QUESTION 14:

Given the higher temperatures and higher degrees of
radioactivity associated with fuel that has been
subjected to extended burn-up, does the Department
anticipate that a different type of transportation
cask will be needed to ship such fuel to the
repository?

ANSWER:

Fuel age at time of shipment is a major factor in
determining heat and radiation loads in any case.
Fuel will be shipped when it is within the limits
of the cask certificate for heat and radiation.
Special casks will probably be unnecessary but the
OCRWM cask development program will be conducting
trade-off studies to determine the effect of
extended burn-up on new cask designs and the need
for special cask designs.

909

QUESTIONS FROM SENATOR WIRTH

QUESTION 15: Does the Department plan to ship nuclear waste

using overweight truck or rail casks? If so, has
the Department received assurance that all corridor
states will permit such shipments? Will the
Department seek to preempt states that do not grant
such permission?

ANSWER:

The OCRWM is evaluating the potential use of both
overweight rail and truck casks for waste shipments
to NWPA facilities. The OCRWM is now reviewing
railroad weight limits and plans to consider the
use of heavy rail casks as an option in the current
cask-design initiative. Evaluations of the
feasibility of using heavy railcars in' the NWPA
transportation system are being supported through a
contract with the Association of American Rail-
roads.

To support the study of the potential use of over-
weight trucks in the NWPA transportation system,
the OCRWM is evaluating Federal and State highway
weight limits, the relationship between highway
damage and vehicle weight, State permit require-
ments, and the cost and safety factors associated
with overweight trucks. At the request of the
OCRWM, the American Association of State Highway
and Transportation Officials has formed a task
force to evaluate State permitting requirements and
procedures with the objective of developing a

910

- 2 -
Standard permit for overweight truck shipments of
radioactive materials.

The use of overweight trucks for NWPA shipping will
depend largely on the ability to obtain national
consensus on overweight truck permitting require-
ments and procedures. In general, the DOE does not
consider State permitting requirements for over-
weight trucks to be "routing rules" that are
preempted by existing DOT routing requirements for
the highway transportation of radioactive
materials. Appendix A of 49 CFR Part 177 offers
DOT guidance on State and local "routing rules"
that are considered to be inconsistent with Federal
routing requirements. A State or local "routing
rule" is defined in Appendix A as any action which
effectively redirects or otherwise significantly
restricts or delays the movement by public highway
of motor vehicles containing hazardous materials,
and which applies because of the hazardous nature
of the cargo; traffic controls such as truck routes
based on vehicle weight or size are not included in
the definition if they are not based on the nature
of the cargo. Consistent with such DOT guidance,
the DOE has not interpreted State permitting
requirements based solely on the weight of trucks —
and not on the nature of the cargo — to be preempted

911

- 3 -

by DOT routing regulations for the highway shipment
of radioactive materials.

912

QUESTIONS FROM SENATOR McCLURE

Question 1: How much of the "institutional relations" between
DOE and the States are conducted by your
contractors, as opposed to yourselves? Do you feel
that your contractors are adequately sensitized to
the needs and the roles of the States in this whole
process?

Answer: DOE personnel are responsible for conducting

institutional activities with the States and Indian

Tribes. In Consultation and Cooperation

negotiations with affected parties, the DOE

negotiating teams are composed of DOE Headquarters

and Project Office personnel, and no DOE contractors

participate.

In less formal interactions that DOE conducts with
the States and Indian Tribes, the responsible DOE
personnel are supported by contractors. The
meetings of the Office of Geologic Repositories
coordinating groups are an example of how the DOE
personnel and contractors interact with the State
and Indian Tribal representatives. At the
Institutional/Socioeconomic Coordination Group
meeting, DOE personnel chair the meeting, make the
presentations, and discuss the issues with the State
and Indian Tribe representatives. Contractors
assist DOE personnel in preparing for the ISCG
meeting, and attend the meeting answering questions
as appropriate and to assist in meeting logistics.

913

The needs and the roles of the States and Indian
Tribes in the process are continually emphasized by
DOE to its support contractors. Because of the
special institutional requirements of this program,
an effort is made to hire contractors who have
experience in intergovernmental and institutional
programs as well as the required technical
experience.

914

QUESTIONS FROM SENATOR McCLURE

QUESTION 2:

In the statements we received yesterday from the
States of Washington, Nevada, and Texas, and from
the affected Indian Tribes, several points were
made that I feel warrant comjnents from you:

(a) The Washington people are concerned that cer-
tain environ-mental or technical factors were
improperly weighed in the ranking process.
For instance, they feel that the difference
between groundwater travel times of 22,000
years (in Washington) and 35 million years
(in Mississippi) are significant in the
ranking process, but were essentially ignored
by DOE. Do you care to comment?

ANSWER:

If groundwater travel time was the sole parameter
determining postclosure repository performance,
and, if the groundwater travel times for the
Richton Dome and Hanford sites were known with a
high degree of confidence to be 35,000,000 years
and 22,000 years, respectively, DOE would tend to
agree that such differences would be significant.
However, these premises are not true, as explained
below. In addition, the issue of "how good is good
enough" is also involved and is explained below.

Groundwater travel time clearly is an important
indicator of performance; a travel time of 1,000
years is a perfonnance objective of 10 CFR Part 60
and a disqualifying condition in 10 CFR Part 960.
However, many other factors will influence radio-
nuclide releases to the accessible environment,
which is the ultimate postclosure performance
measure. Several of these factors are radionuclide

915

- 2

retardation, geochemical solubility of radio-
nuclides, waste-package lifetime, and a site's
resistance to changes in its natural and engineered
barriers over the long-time frames important to
waste isolation (see Figure 3-2 and associated text
in the methodology report (DOE/RW-0074) for a more
complete description of these factors.) While
Hanford's range of traval times (22,000 to 83,000
years) is less favorable than Richton Dome's
(10,000,000 to 35,000,000 years), the geochemical
conditions at Hanford appear more favorable than at
Richton Dome. As documented in DOE'e methodology
report, when the important factors influencing
releases are considered together, releases from
Hanford are on the order of 22 times those from
Richton Dome. Clearly, then, the large .estimated
differences in groundwater travel time between
these sites had an influence on performance;
however, the differences in releases are not in
proportion to the differences in groundwater travel
times because of the presence of other compensating
features at the Hanford site.

Furthermore, it is important to recognize that
while differences in terms of releases between the
site may exist, these releases are still only a
very small fraction of the EPA release limits:

916

- 3 -

Richton Dome's releases are about O.OOOll of the
EPA limits and Hanford's releases are about 0.0024
of the EPA limits. This accounts for the very
small differences in desirability between the two
sites.

Finally, we note that it is difficult to place high
confidence in groundwater travel times for any site
so early in the siting process. Uncertainties will
be reduced during site characterization. Resolu-
tion of such uncertainties could lead to the
conclusion that, in terms of expected releases to
the accessible environment, the Hanford site is
more favorable than the Richton Dome site (see
discussion on pages 3-41 to 3-43 in the methodology
report) .

917

QUESTIONS FROM SENATOR McCLURE

QUESTION 2b: In the statements we received yesterday from the
States of Washington, Nevada, and Texas, and from
the affected Indian Tribes, several points were made
that I feel warrant comments from you:

Your environmental assessments are inadequate,
and, according to NRC, "overly-optimistic", and
could lead to the characterization and selec-
tion of a site that may end up to be unlicen-
sable.

ANSWER: We do not believe that our environmental (EAs)
assessments are "inadequate."

We believe, that the EAs adequately fulfill
their intended purpose of providing an information
base on which to make siting decisions. It is
important to note that the siting decisions being
made now are not licensing decisions but, rather,
judging which sites appear to justify the investment
(in terms of time and money) in characterizing them.
It is clear that licensing decisions will require
more precise information and a level-of-proof
unavailable at this stage of the siting process,
prior to site characterization.

With regard to NRC's comments on over-optimism, we
appreciate that other technical experts would disa-
gree with the Department's judgments. Current
uncertainties leave much room for reasonable and

918

- 2 -
knowledgeable experts to disagree. As the NRC
observed, "At this stage of the site investigation
and screening process, there is inherent uncertainty
in site information that can lead to alternative
interpretations of data. Furthermore, resolution of
uncertainties ... must await characterization." DOE
plans to address NRC's concerns about over-optimism
consistent with their advice, namely, as part of the
development of the Site Characterization Plans.

Finally, with regard to comments that the environ-
mental assessments "could lead to the characteriza-
tion and selection of a site that may end up to be
unlicenseable," this is of course a possibility, but
we believe it is unlikely. We cannot predict the
course of the licensing process nor would we be so
presvimptuous as to speak for the NRC. We would
note, however, that we have taken all reasonable
steps to try to ensure the licensability of the
sites. For example, DOE's siting guidelines, which
were used to guide the selection of sites for
characterization, refer frequently to NRC's techni-
cal criteria through direct quotations and para-
phrasing. In addition, DOE has and will continue to
meet with the NRC prior to formal licensing to
discuss potential licensing issues.

919

QUESTIONS FROM SENATOR MCCLURE

QUESTION 2:

In the statements we received yesterday from the
States of Washington, Nevada, and Texas, and from
the affected Indian Tribes, several points were
made that I feel warrant comments from you:

measured at DOE's WIPP facility in New Mexico)
precludes maintaining retrievability for 50
years as required by the NWPA.

ANSWER:

Closure rates predicted and experienced do not
"preclude" retrievability. However, the rates
increase the cost of maintaining retrievability.

920

QUESTIONS FROM SENATOR McCLURZ

QUESTION 2:

In the statements we received yesterday from the
States of Washington, Nevada, and Texas, and from
the affected Indian Tribes, several points were made
that I feel warrant comments from you:

(d) DOE is being overly restrictive in its

interpretation of the "appropriateness" of
entering C&C negotiations with affected Indian
Tribes (notably, the Umatilla tribe and the Nez
Perce tribe) .

ANSWER:

DOE received a letter from the Nez Perce Tribe
(January 14, 1987) concerning the inclusion of
Indian Tribes in all eleven elements listed in Sec-
tion 117(c) of the Nuclear Waste Policy Act of 1982.
DOE'S response to the Nez Perce Tribe's letter
stated that the agency considers it appropriate to
negotiate on any issues of concern to the Indian
Tribes in arriving at a completed C&C agreement.
DOE looks forward to entering into negotiations with
the Nez Perce Indian Tribe, to continuing the
ongoing negotiations with the Confederated Tribes of
the Umatilla Indian Reservation, and to resuming
negotiations with the Yakima Indian Nation.

921

QUESTIONS FROM SENATOR McCLURE

QUESTION 2 : In the statements we received yesterday from the
States of Washington, Nevada, and Texas, and from
the affected Indian Tribes, several points were made
that I feel warrant comments from you:

(e) DOE resists or rejects input from States and

Indian Tribes in the development of guidelines
and other documents. This is in sharp contrast
to NRC's responsiveness to public comments when
formulating its regulations.

ANSWER: DOE does not "resist or reject input from States and
Tribes in the development of guidelines and other
documents." The Department welcomes input from
States and Indian Tribes and has provided numerous
opportunities for them to comment on program docu-
ments, including, but not limited to, the repository
siting guidelines. Draft Mission Plan, and draft
Environmental Assessments. State and Indian Tribe
participation in the coordinating groups provides
regular opportunities for the affected parties to
raise issues and concerns with DOE and for DOE to
obtain input from them.

Although DOE has not incorporated every comment
States and Indian Tribes have made, the Department
has made major changes in documents. For example,
in response to State and Indian Tribal comments on
the repository siting guidelines, DOE added several
qualifying and disqualifying conditions and added
much more detail for the site-selection process. In

922

- 2 -

response to comments on the Mission Plan, DOE signi-
ficantly expanded the scope and level of detail.
Finally, DOE conducted several additional studies,
gathered additional information, and revised its
approach to ranking sites in the draft Environmental
Assessments in response to comments. More recently,
DOE has extended the schedule for the first reposi-
tory, partly in response to suggestions from States -
and Indian Tribes. These actions, of course, only
highlight the Department's responsiveness to State
and Indian Tribe input. DOE's response to all State
and Indian Tribe comments is explained in comment
response documents or chapters, for all major guide-
lines and documents, or by correspondence with State
and Indian Tribe officials.

923

QUESTIONS FROM SENATOR McCLURE

QUESTION 3: Ycu state in yeur written testimony that "daily
opportunities represent the spirit and intent of
the requirements regarding participation,
consultation, and cooperation." Yet that's not
how I'm hearing it from the States. And that's
not how I read Section 117 of the Nuclear Waste
Policy Act, regarding Consultation and Cooperation
with the States and Indian Tribes. And that's not
what the GAO report to this committee concludes.
In fact, GAO concludes that "DOE has not allowed
them (States and Indian Tribes) to participate
in the program to the extent intended by the Act."
VThat are you doing to correct these obvious
deficiencies in your relationship to the States-
and Indian Tribas?

ANSWER:

To be more responsive to the needs of States and
Indian Tribes, DOE is currently working on further
developing the consultation and cooperation
process in addition to the negotiation of C&C
Agreements and is formally identifying operating
principles, program operating. procedures and new
C&C initiatives. For example, DOE has recently
opened all of its technical coordinating groups to
States and Indian Tribal participation. Also, we
are moving ediead on Facility-Specific Outreach and
Participation Plans. These plans detail the
institutional activities that will be conducted at
each site to inform and involve affected parties
during site characterization. Discussions are
also being held with representatives of the
States, Indian Tribes, and local governments to

924

- 2 -

determine where they would like to focus their
attention in terms of their own participation and
involvement. In response, DOE is building into
the repository development schedule specific
opportunities for interaction with affected
parties.

925

QUESTIONS FROM SENATOR McCLURE

QUESTION 4: You have a perfect role model in your DOE

counterparts in New Mexico, who went through the
difficult process of formalizing a C&C agreement
with the State with respect to the construction
and operation of the Waste Isolation Pilot Project
(WIPP) , which will store low-level and transuranic
wastes from DOE defense programs activities. Have
you consulted at all with these people to find out
how their process worked?

ANSWER:

The C&C Agreement adopted for WIPP can indeed be
instructive in providing guidance to the-NWPA
program. OCRWM personnel are in regular contact
with DOE Defense Programs to learn as much as
possible regarding their experience to date. For
example, in March 1985, OCRWM Headquarters
personnel visited WIPP and developed a paper on
"Lessons Learned: Waste Isolation Pilot Plant
(WIPP) Project." In late 1985, at our request,
senior DOE officials from Albuquerque Operations
Office and the WIPP site came to Washington to
brief Mr. Ben C. Rusche and senior staff on "lessons
learned." This was considered so useful that a
determination was made to conduct more detailed
interations between the two professional staff
units. For the past few months, we have worked
closely with WIPP staff to develop an agenda and
faculty for this one-on-one training.
Arrangements have been completed to present the

77-10A 0-87

926

- 2 -

training in two sessions — once in April and
again in June 1987.

At the ISCG meeting held on March 11 in
Albuquerque, New Mexico, a former State legislator
from the State of New Mexico gave a presentation
on the State legislative perspective on the WIPP
experience.

927

QUESTIONS FROM SENATOR McCLURE

QUESTION 5:

One of the major criticisms I heard in yesterday's
hearing was that DOE all but ignores public com-
ments on the various documents it prepares (siting
guidelines, Mission Plan, Environmental Assess-
ments, etc.)' Now you're saying that the Site
Characterization Plans are being prepared, and you
will solicit comments from NRC as well as the
public. I hope you will not take NRC's comments
lightly, for the key to this whole process is the
licenseability of the facility. Furthermore, I
hope you'll be receptive and responsive to public
comments for this would greatly improve your cred-
ibility in the eyes of those most closely affected
by your work.

ANSWER:

Consultation with States, Tribes, agencies, and the
public during preparation of the Site
Characterization Plan (SCP) has been a
major consideration and has been incorporated
throughout the program. In 1983, public hearings
were held in the vicinity of sites being
considered for nomination, to receivs comments on
issues to be addressed in the SCP. Input received
was documented, evaluated, and incorporated as
appropriate in the SCP, as were any site
characterization-related comments received on the
Environmental Assessments. Status of the SCP and
comments regarding its preparation are discussed
during the Quarterly information meetings conducted
with States and Tribes. States, Tribes, and
agencies are notified of and invited to
participate actively in all meetings between DOE
and the NRC regarding the SCP. Since February,

928

- 2 -
1985, there have been six such meetings; one on
DOE'S Annotated Outline for preparation of the
SCP, two on performance allocation, two on the
level of detail to be presented In the SCP; and
one, held on March 3-4, 1987, on the Issues
Hierarchy and Issue Resolution Strategy. DOE
Project Offices hold routine briefings for States
and Tribes, and HQ and Project Office personnel
have offered to meet with States/Tribes at their
request to discuss matters pertaining to the SCP.
Draft chapters of the SCPs are being provided to
States and Tribes for their early review.

DOE will continue to follow all NWPA requirements
for consultation and public interaction in the
preparation and issuances of the SCP. All
comments received during the public comment period
will be evaluated and responded to in comment
response documents prepared by the Project Office
and reflected in periodic progress reports.
Technical comments received will be incorporated
as appropriate in planning docximents such as
specific study plans.

929

QUESTIONS FROM SENATOR McCLURE

QUESTION 6:

You say that your decision to postpone second repository
work was "responsible fiscal management". Yet, if you
really intend to eventually do this work at some point,
wouldn't it be cheaper to proceed with the site
selection activities now, while your coffers are
overflowing, and before inflated construction costs take
over? And what do you say to the "responsible fiscal
management" of throwing away all the work you have done
on the second repository sites? (How much did that
cost?) And what do you say about the "responsible fiscal
management" of choosing a site — namely Hanford — where
total program expenses could be as much as $4 billion
more costly than the other sites considered?

ANSWER:

The Department's draft Mission- Plan Amendment discusses
several reasons for delaying the second repository siting
activities. As indicated in the Amendment, the plan
presented for the second repository in the June 1985
Mission Plan would require the Department to spend nearly
$700 million through the year 1993 for siting activities
leading to site characterization. Under the revised
program, expenditures through the year 1993 should total
about $200 million. (Expenditures through Fiscal year
1986 on the second repository program have been about
$74 million.) Information and data already obtained in
conjunction with the second repository effort will be
retained and used, as appropriate, in conjunction with
site selection when it is resumed.

- 2 -

Delaying major expenditures for the second repository
should strengthen the financial position of the program
by allowing additional time for earning a return on
Nuclear Waste Fund investments. A small percentage of
these savings, however, will be offset by the need to
continue some second repository activities longer than
would otherwise be necessary. These effects are being
investigated and will be discussed in the next annual
fee adequacy report to be submitted to the
Congress.

The selection of the three first repository candidate
sites was based on several factors including health and
safety considerations, environmental impacts,
geophysical suitability of the sites, socioeconomic
considerations, as well as potential costs. Estimated
cost is only one factor, it should be noted that there
is a high degree of uncertainty associated with the cost
estimates at this time. The estimates are based upon
pre-conceptual designs and without the benefit of data to
be gained during site characterization. The estimates
are, therefore, very preliminary and may not accurately
represent cost differentials between sites. The Hanford
site has the highest estimated system costs of the three

931

- 3 -
candidate sites, but this in itself should not preclude a
site from further consideration, given the importance of
the other factors, such as health, safety and
impacts on the affected communities.

932

QUESTIONS FROM SENATOR McCLURE

QUESTION 7: You stated that the Tennessee court decision in

your favor reinforces your view that you have not
violated the Act with respect to your actions to
date on MRS. There are many other cases pending —
including a few that relate to your decision to
indefinitely postpone second repository
activities. What if the courts do not rule in
your favor in these cases?

ANSWER.:

The Department will, of course, abide by the final
decisions of the courts in all cases or seek
legislative relief in its effort to implement the
Nuclear Waste Policy Act.

933

QUESTIONS FROM SENATOR McCLURE

QUESTION 8: In your written testimony, you say that, "our

intent regarding MRS is to fulfill our statutory
obligations under that Act and submit the
proposal on MRS to the Congress at the earliest
date practicable." Why are you so intent on
fulfilling your statutory obligations regarding
MRS, when you are ignoring your statutory
obligations with respect to the second repository
work?

ANSWER:

The Mission Plan Amendment seeks clarification
from Congress on the second repository schedule.
With regard to MRS, the Department considers that
the preferred approach for meeting the intent of
the NWPA and its contracts with the utilities
includes an integral MRS facility. This approach
also achieves the broader goal of improved
operating efficiency for the system. Accordingly,
the Department has, on March 31, 1987, submitted the
MRS proposal to the Congress.

With respect to the second repository, the
Department felt obligated to describe the course
and timing that the first and second repository
programs should take given current circumstances
based on our considered and informed judgments and
actual experience in administering these programs.

934

QUESTIONS FROM SENATOR McCLURE

QUESTION 9: You state that you intend that the Mission Plan

amendments will help Congress to provide DOE with
the direction they need for the conduct of the
program — let me remind you, first of all, that we
have already provided you with the direction we
want you to take — that can be found in Public Law
97-425, the Nuclear Waste Policy Act of 1982. And
let me remind you, second of all, that there is
nothing in the Act that requires Congress to
respond in any form to the Mission Plan — nor does
the Act mention at all the process of amending the
Mission Plan. So I'm just warning you, do not be
disappointed if you do not receive a formal
Congressional response to your new document.

ANSWER:

We would hope Congress will act favorably and
quickly on the proposed Mission Plan Amendment
when it is formally submitted to Congress since we
consider that the revised plan and schedules
presented there represent the best way to proceed
with the program.

935

QUESTIONS FROM SENATOR HATFIELD

QUESTION 10:

The Hanford Nuclear Reservation has been the site
of significant nuclear waste activities for over 40
years. Accordingly, a large portion of the
Reservation has been exposed to radioactivity. If
Hanford were chosen as the repository site, would
the Department be able to distinguish leaking
radioactivity from the repository from other
radioactive contamination on the reservation?

ANSWER:

If Plutonium production, defense waste storage, and
a commercial waste repository operate concurrently
at Hanford, there are several feasible approaches
of identifying the specific source of any
radionuclide releases that are detected. The
approach best suited to a particular situation
depends in large measure on the specific
characteristics of the facilities and processes
making up the overall system. For example,
physical separation of individual facilities and
incorporation of various monitoring devices
proximate to each facility might preclude the
possibility of any difficulties in identifying the
source of airborne, surface, or subsurface
contamination. Similarly, the source of
contaminants detected at subsurface locations could
very likely be traced by hypothesizing potential
sources and then sampling groundwaters along
predicted pathways from those sources. Another
aspect of the detection approach could involve the
distinctive signatures associated with specific
waste forms. The geologic-repository monitoring

936

- 2 -
approach is still years away from precise
definition, and will be developed as part of the
site characterization program and subjected to
review by the regulatory agencies.

937

QUESTION FROM SENATOR HATFIELD

QUESTION 11:

The Committee has heard testimony that one of the
reasons that the Department has decided to postpone
its search for a second repository is because the
projected volume of commercial waste is
significantly less than originally forecast. It is
my understanding, however, that the Department is
considering transferring defense waste which now is
contained in the single-shell tanks at Hanford into
the high-level repository upon its completion.
This would dramatically increase the volume of
waste that would be placed in the repository.
Would this not indicate that a second repository is
needed? What is the volume of this defense waste
that will be placed in a repository.

ANSWER:

On May 28, 1986, the Secretary of Energy announced
his decision that it would be prudent to postpone
site-specific activities for the second repository.
This decision does not mean that a second
repository is not needed. The draft Mission Plan
Amendment indicates that a second repository will
be needed, but not until after the year 2020.

There is uncertainty in the defense waste
projections, just as there is in the spent fuel
projections. The current planning projection for
defense waste is 16,000 canisters. This does not
include the waste currently stored in the single-
shell tanks at Hanford. The Department is
conducting an environmental assessment of the

938

- 2 -

Hanford waste to determine the appropriate disposal
technique. No decision has been made at this time
regarding disposal of this waste. This decision
will not, however, influence the need for a second
repository, since the 1986 EIA spent fuel
projections, even at the lowest current projection,
indicate that a second repository will be needed,
nor would it mean a "dramatic" increase in the
total volume of material requiring disposal.

939

QUESTIONS FROM SENATOR HATFIELD

QUESTION 12: It is theorized that there are several underground
aquifers beneath Hanford. Can the Department [of
Energy] tell us how many aquifers they will have to
drill through at the Hanford Site and what the
pressures of the aquifers [water pressures] are
suspected to be?

ANSWER:

One unconfined aquifer and approximately eight
confined aquifers exist beneath the Hanford Site in
the sediments and basalts lying between the land
surface and the proposed repository depth. The
water pressures encountered will vary from
atmospheric pressure (14.7 psi) to a maximum of
about 1250 psi.

The unconfined aquifer occurs in the sedimentary
beds of the Hanford and Ringold Formations that
overlie the thick sequence of basalt flows. As
reported in the final Environmental Assessment (May
1986) for the Basalt Waste Isolation Project, the
principal confined aquifers within the basalt
sequence exist in selected sedimentary interbeds
and basalt flow tops of the Saddle Mountains and
Wanapum Basalts. (Here, the term "aquifer" is used
to denote a saturated stratigraphic interval
capable of a sustained water yield of about 10
gallons per minute.) Within the Saddle Mountains
Basalt, the Rattlesnake Ridge, Cold Creek, and

940

- 2 -

Mabton interbeds are frequent sources of large
groundwater supplies, in addition to those in flow
tops of the Elephant Mountain and Umatilla Members.
Some individual flow tops within the Priest Rapids,
Rosa, and Frenchman Springs Members of the Wanapum
Basalt are also known to be aquifers. Few aquifers
appear to exist within the Grande Ronde Basalt
beneath the Hanford Site.

Within the Pasco Basin, the principal aquifers
tapped for large-scale irrigation are the
sedimentary interbeds and basalt flow tops of the
Saddle Mountains and Wanapum Basalts.

When labelling a stratigraphic interval as an
aquifer, it is important to remember that hydraulic
properties can vary significantly within a
formation and, therefore, what is termed an aquifer
in one location may not qualify as such at another
location. For example, the Vantage interbed is a
very productive aquifer in the western half of the
Colvimbia Plateau in Washington State. There, it
consists of coarse-grained (sand and gravel) river
deposited sediments. Farther east, beneath the
Hanford Site, the Vantage mostly consists of low
permeability silts and clays or is completely
absent from the stratigraphic section. In like

941

- 3 -

fashion, the Grande Ronde Basalt can include
several very productive aquifers that contain good
quality water along the margins of the Columbia
Plateau where the formation lies at or close to
land surface and can contain numerous sedimentary
interbeds. In the Grande Ronde, beneath the
Hanford site, few zones of high permeability are
present, interbeds are thin to absent, and the
groundwater quality is poor because of high
fluoride, boron, and sodium concentrations and high
salinity.

By using an average repository depth of 3150 feet below la
surface, a land elevation of 625 feet above sea level and
hydraulic head of 403 feet above sea level, a water pressu
of approximately 1250 psi is calculated at the
depth of the proposed repository.

The Department of Energy is planning a thorough
evaluation of the aquifers beneath Hanford,
Washington. The plans will be available in the
fall of 1987.

942

QUESTIONS FROM SENATOR HATFIELD

QUESTION 13: The city of Portland's Bureau of Water Works has
theorized that a huge underground aquifer extends
from beneath eastern Washington and eastern Oregon,
along the Columbia River to the western reaches of
the two states. What activities does the
Department [of Energy] intend to do to ascertain
whether or not such an aquifer exists?

ANSWER:

The Department of Energy (DOE) and the U.S.
Geological Survey (USGS) are involved in
independent as well as cooperative activities in
assessing regional groundwater flow in the basalts
of the Pacific Northwest. Such regional studies
cover 1000s to several tens of 1000s of square
miles. Individually and collectively, these
studies enclose a large portion of the territory
lying between the proposed repository site and
Portland.

The DOE is involved in or is undertaking the two
regional hydrology studies discussed below:
1) Since the early 1980 's, personnel from the DOE,
USGS, Rockwell Hanford Operations (RHO) , and
Pacific Northwest Laboratory (PNL) have
participated in an Interagency Hydrology
Working Group (IHWG) . This group was formed to
share hydrologic data, identify conceptual flow
model differences, and seek resolution of
conceptual model differences through numerical
modeling. The general area covered in this

943

study includes the Pasco Basin and the eastern
half of the Horse Heaven Basin (Figure 131) .
The Horse Heaven Basin lies south to southwest
of the Hanford site, i.e., directly between
Hanford and Oregon.

In the IHWG, the USGS has shared interpretive
hydrologic information that will not be
otherwise available until the USGS has
completed its interpretations and formally
published the results.

2) As part of the DOE site characterization

studies, RHO is now writing study plans for
conducting an independent groundwater modeling
study focusing on the Pasco Basin and adjoining
area. The study will have two purposes.
First, it will examine the groundwater flow
dynamics (e.g., recharge rates, discharge
rates, flow directions, vertical groundwater
flux between geologic units, and influence of
major geologic structures) in the shallow to
deep basalts. Second, it will define boundary
conditions for repository performance
assessments studies. A summary of these study
plans will be written into the Site
Characterization Plan scheduled for release in

944

3
1987. Details will be published in the study
plans themselves.

The USGS is independently involved in two hydrology
studies assessing regional groundwater flow in the
Columbia River Basalt. These studies are
summarized below:

1) In 1983, the USGS initiated a fouryear study of
the Columbia Plateau as part of its national
"Regional AquiferSystem Analysis" (RASA)
program. This particular RASA study was
implemented to describe the geohydrology,
geochemistry, and regional groundwater flow in
the Columbia River Basalt Group of the Columbia
Plateau. The RASA program is a national effort
by the USGS to systematically assess regional
groundwater systems considered important to the
Nation's water supply. The Coliimbia Plateau
study area covers approximately 70,000 square
miles (Figure 132) . Results are planned for
release in 1988 or 1989. Whereas the RASA
study is not intended to directly support the
Basalt Waste Isolation Project (BWIP) , the DOE
will compare RASA and BWIP regional study
results after they are reported.

2) The USGS has conducted a water resource
evaluation covering an area enclosed by the

945

4
southeastern portion of the Yakima River Basin
and most of the Horse Heaven Basin (Figure 13-
1) . This work is referred to as the Horse
Heaven Hills Study. The study was requested by
the Washington State Department of Ecology to
better understand the local groundwater
system with respect to allocating wateruse
permits. Publication of field tests and
numerical modeling of groundwater system
behavior is planned in 1988.

It is important to emphasize that the above
USGS studies are for water resource management
purposes. Study results and supporting data
will be examined for their use and/or
referenced by DOE during site characterization
studies.

The studies identified above help assess the
general continuity of aquifers between the
Hanford Site and the groundwater basins located
south to southwest of Hanford. If hydraulic
continuity (via aquifers) exists between
Hanford and the Portland area, groundwater
would flow south to southwest through these
basins. If continuity does not exist between
these basins and Hanford, it would not exist
between Hanford and Portland. Additional

946

- 5 -

studies might be required if hydraulic
continuity were found likely to extend to
Portland.

It is recognized that geologic continuity exists
between basalt formations across a large portion of
the Columbia Plateau (Figure 13-3) . However, the
extent of hydrologic continuity, if any, through
these basalts remains to be assessed. The studies
given above will help in that assessment.

947

Cl.

C
O

V
•J

•d

i/>

B
O

c
j=

o
o

948

-»&"■

-4S'

T r

50 100 150 KILOMETERS

Flqure 13-2 - Location of the Regional Aquifer-System Analysis (RASA) Program Study Area

949

-■«6'=

iO 100 ISO KILOMETERS
EXPLANATION
Saddle Meuntaint Btftit | \ artna* Rondt Biiait

Wtntpum Bkiali

_ Extant of Columbia RIvar
V Baaail Qroup

Figure 13-3 - Extent of Columbia River Basalt Group and Its Three Major Formations

950

QUESTION FROM SENATOR DOMENICI

QUESTION 14;

ANSWER:

$79 million of the total $499 million that Congress
appropriated to your program for FY87 is being
withheld until the Department has shown to our
satisfaction that they have made good faith efforts
to work with the States and Indian Tribes on
Consultation and Cooperation Agreements. We feel
it would be beneficial to us as well as to the
Department for the Office of Civilian Radioactive
Waste Management (OCRWM) to provide the Committee
with documentation of all phone calls, letters, and
meetings that OCRWM has initiated towards this
effort since the FY87 Appropriations bill was
passed. Could you please provide us with this
information?

If one interpreted this question in its broadest

possible context, it would be a monumental task to

assemble the thousands of pieces of correspondence

and information. In an aattempt to be responsive

to the spirit of this question, we have highlighted

below a summary documentation of key C&C meetings

and actions taken since passage of the FY87

Appropriations bill:

On November 19, 1987, following Presidential

approval of the sites identified for

characterization, DOE sent formal requests to each

affected State and Tribe to begin one-on-one

negotiations with the Department toward the

development of Consultation and Cooperation

Agreements (C&C) •

On November 20, 1987, DOE personnel met in New

Orleans with representatives of the States and

Tribes to discuss informally the definition of C&C

and ways to improve consultations and cooperation

951

- 2 -

between the Department and affected parties. It
was agreed to pursue C&C on a dual-track approach —
(a) revise the Mission Plan to better define the
process and (b) develop an action plan to implement
new approaches.

o On December 8, 1987, the OCRWM Associate Director
for Geologic Repositories met in Las Vegas,
Nevada with representatives of the States and
Tribes for discussions of ways to improve
State/Tribal/Federal relations.

o The amended Mission Plan, issued on January 28,
1987, contains a description of the C&C process,
including several proposed new initiatives to
encourage C&C negotiations.

o In consultation with the States and Tribes, DOE has
opened the regular quarterly meetings with the
States and Tribes to the public and the press. The
first such open meeting was held in Spokane,
Washington on February 12, 1987. On the previous
day, DOE officials from Washington, D.C., met
informally at their invitation with State and
Tribal representatives to discuss was to enhance
the coordination and cooperation process. The DOE
also met a few hours later with a smaller
representative group to describe DOE's plans to
strengthen its management through the selection of
a Systems Engineering and Development contractor.

952

- 3 -

o For mora than six months, at the regular

Institutional and Socioeconomic Coordinating Group
(ISCG) meetings, which are attended by
representatives of the affected States and Indian
Tribes, proposed guidelines for C&C have been
presented by DOE personnel, and suggestions from
the States and Tribes are being incorporated in
revised drafts. At the Spokane meeting, draft
copies of the Financial Assistance Guidelines were
distributed to the States and Tribes as an interim
Department policy statement until the issuance of a
formal rule following a standard rulemaking*
process.

o At a meeting with State and Tribal representatives
(ISCG) March 10-12) a primary topic of discussion
was an upcoming rulemaking on grants and financial
assistance under the Nuclear Waste Policy Act.
States and Tribes were invited to identify any
major areas of concern to be resolved.

o At the Spokane meeting, all affected States and

Tribes were informed that in the future, all twelve
Coordinating Group meetings will be open to their
representatives .

o On February 13, 1987, DOE agreed to provide support
to the affected Tribes to prepare impact assistance
reports, which would go to the Secretary as part of
the information he would use in the event he

953

- 4 -
recommended a first repository site affecting the
Tribes.

o On February 9, 1987, a meeting was held in

Richland, Washington with representatives of the
States of Washington and Oregon and the Yakima
Indian Nation, Umatilla Confederated Tribes, and
Nez Perce Tribe to discuss the planned scope of
work of the Basalt Waste Isolation Program for
Fiscal Years 1987 and 1988 in areas of ongoing and
planned licensing, engineering, geoscience, and
institutional activities. This review and
discussion was specifically designed to aid the
State and Tribal representatives in preparing their
grant proposals for the same periods.

o During the week of February 22,1987, representa-
tives of the Salt Repository Project Office visited
the communities near the Deaf Smith, Texas salt
repository site to attend public meetings for the
purpose of discussions planned for moving the
Office to Texas and beginning field activities for
site characterization. These meetings were also
held to respond to questions and to receive
suggestions for program improvement and closer
consultation and cooperation with the public.

o On February 27, 1987, the representatives of the
States of Washington, Oregon, and the three
affected Indian Tribes were invited to participate

954

- 5 -

in a training program for Quality Assurance
Auditors (those who periodically monitor the
aspects of the repository program related to the
quality of planning, operations, and record-keeping
which are important to NRC licensing, along with
DOE personnel. This training will help the States
and Tribes perform their important tasks of
independent evaluation of the technical quality of
the civilian nuclear waste management program, in
coordination with the Federal program.

o In February 1987, the U.S. General Accounting
Office recommended that the Secretary of Energy
take four specific steps to enhance DOE relations
with States and Tribes. The Department has
reviewed this report and is accepting all
recommendations .

o In March, DOE announced to States and Tribes that
procedures are being developed to provide for a
maximum 90-day review procedure for grant
applications submitted to the Department under
NWPA.

o The heart of NWPA's consultation and cooperation
process is, of course, the day-to-day interactions
between DOE Project Offices and the States and
Tribes.

955

- 6 -
o On March 9, 1987, an informal meeting was arranged
by the National Congress of American Indians for
DOE nuclear waste program officials to meet with
representatives of the Yakima and Nez Perce Indian
Tribes to discuss matters of current interest.

o On March 10, 1987, DOE participated in an afternoon
of dialogue between Tribal leaders, NRC, EPA, and
Congressional staffers, on the status of the high-
level waste program.

956

QUESTIONS FROM SENATOR EVANS

QUESTION 1: Generally, do you believe that the Department has
the authority through amendments to the Mission
Plan to eliminate or substantially alter
provisions of the Nuclear Waste Policy Act (NWPA)
that require the President and the Secretary to
submit plans and develop sites by certain
dates?

ANSWER:

No. The Department has no authority to
unilaterally change the NWPA through amendments to
the Mission Plan.

The schedules set forth in the draft amendments to
the Mission Plan were based solely upon
programmatic judgments. They were not intended to
set forth any particular legal position, but
rather to describe the Department's considered and
informed judgments, based on its actual
experience in administering these programs, of
the course and timing that the first and second
repository program should take given current
circumstances. DOE recognizes that carrying out
these programs in the way described in the
proposed amendments to the Mission Plan will
require Congressional approval.

957

QUESTIONS FROM SENATOR EVANS

QUESTION 2: Why has the Department waited until now to submit
its amendments when the program changes which you
are proposing seem to have already been decided
(indefinite postponement of 2nd repository, missed
deadlines) ?

ANSWER:

The Department publicly announced on May 28, 1986,
the intent to indefinitely postpone site-specific
work for the second repository while maintaining a
technology development program. Various
Congressional committees and staffs were briefed
at that time. In testimony before Congress,
Secretary Herrington committed to document the
basis for these actions and the proposed new
program in an amendment to the Mission Plan and
submit it to Congress for information and
statutory direction.

Preparation of the Mission Plan Amendment began at
that time. During the preparation of the
amendment regarding the second repository, it
became evident that other program changes should
also be included in the amendment and submitted to
Congress. These included the extension of the
date for beginning operations at the first
repository and reporting on the status of the MRS.
The Department incorporated this information and
provided an advance copy of the draft of the
amendment to Congress for information as it

958

- 2 -

ANSWER 2: CON'T

considers the Department's fiscal year 1988
budget request.

959

QUESTIONS FROM SENATOR EVANS

QUESTION 3: In response to a request from Senator Simpson on
the legal questions surrounding the indefinite
postponement of the 2nd repository program, the
General Accounting (GAO) wrote: "...submitting
an amendment to the mission plan would not, as a
legal matter, vitiate compliance with the
statutory deadlines, if that in fact occurs.
Without action by Congress to change the
.deadlines, a failure by the Administration to meet
the deadlines, whether willful or otherwise, would
violate the Act." Why hasn't the Department
requested a change in the NWPA when it openly
admits that it has not and will not meet many of _
the statutory deadlines set forth in Section 112
and 114?

ANSWER:

The Department considers that the appropriate
course of action at this time is to complete the
Mission Plan Amendment and formally submit it to
Congress for information and statutory direction.
As indicated above, we recognize that carrying
out the programs as described in the Draft
Mission Plan Amendment will require Congressional
approval. We are using the Mission Plan Amendment
as the vehicle to make needed recommendations
based on what has been learned to date from
administration of the statute.

960

QUESTIONS FROM SENATOR EVANS

QUESTION 4: The NWPA specifically directs the Department to

nominate five sites for consideration as a second
repository not-later than July 1, 1989. Last
year's Continuing Resolution states: "The
conferees believe that the surest course for the
DOE lies in careful implementation of the Nuclear
Waste Policy Act...." Isn't this ample evidence
that the Congress has clearly gone on record that
DOE should follow the entire Act, and not proceed
with selective implementation of its provisions?

ANSWER:

In testimony last year, Secretary Herrington
advised that the Department's proposal for certain
schedule and program revisions would be documented
in a Mission Plan Amendment and submitted to
Congress for information and statutory direction.
The Department has drafted such an amendment and
has submitted it to States, Indian tribes, and
Federal agencies for review prior to formal
submission to Congress.

961

QUESTIONS FROM SENATOR EVANS

QUESTION 5: Was the funding reduction in the Civilian Nuclear
Waste Program called for in last year's CR applied
against the entire program as specified?

ANSWER:

The funding reduction called for in the FY 1987
Continuing Resolution was applied against all
segments of the program with the exception of Second
Repository activities. An amendment to the FY 1987
budget request reduced the funding level for Second
Repository activities from $78.7 million to $19.8
million. This reduced funding level remained con-
stant at $19.8 million.

962

QUESTIONS FROM SENATOR EVANS

QUESTION 6: When did the Department complete the Multi-
attribute Utility Analysis (MUA) it prepared for
the five first repository candidate sites? vnien
did work begin on the Recommendation Report? What
is the Department's rationale for reaching a
decision on what sites to recommend before their
decision-aiding methodology was even complete?

ANSWER:

The MUA was sent to the printer on May 5, 1986.
Work began on the recommendation report on April 4,
1986, when a meeting was held between DOE
management and Weston consultants regarding the
need for and content of an overview document on the
recommendation. A first draft of this report was
available on April 9, 1986. However, at this
point, no decision on which sites to recommend had
been made. The actual decision was made by the
Secretary several weeks later. The Secretary's
approved recommendation report went to the printer
on May 27, 1986. Thus, there was a several week
period during which the reports were not prepared
in parallel.

Two additional points should be made in regard to
this timing issue. First, during the time the two
reports were being prepared in parallel, no
numerical results whatsoever were changed in the
methodology report. The methodology report was
being edited for clarity and brevity, and for
consistency with its intended purpose as a

963

-2-
decision-aiding tool. Certainly all the major
insights from the methodology report had been
communicated to the Director, OCRWM, by the time
the first meeting discussing the need for a
recommendation report was held.

Second, since the methodology was never intended or
designed to make the site-recommendation decision,
we do not regard the parallel preparation of the
two documents as irregular.

964

QUESTIONS FROM SENATOR EVANS

QUESTION 7: Has the Department made an official response to the
report prepared by Ralph Keeney, the consultant who
developed the methodology used in the MUA and con-
tributed significantly to early drafts, which con-
cludes that the site portfolio selected by DOE is
not supportable? If any official or unofficial
response has been made, please submit it to the
Committee for the record.

ANSWER:

DOE has briefly addressed Professor Keeney 's analy-
sis in a letter dated February 18, 1987, from B.
Rusche to Congressmen Markey, Swift, and Wyden. We
quote below the reference in that letter to Profes-
sor Keeney 's analysis.

"Professor Ralph L. Keeney, who participated in
the development of the MUA, has on his own
initiative recently conducted a partial
portfolio analysis. While we disagree with
the conclusions and recommendations Professor
Keeney derives from his new analysis, we
believe it supports the long-standing
principle that diversity should be an
important factor in siting. Furthermore, we
believe that the results of the analysis
support our conclusion that a formal portfolio
analysis would not yield major new insights
that would lead to a different choice of
sites. "

965

QUESTIONS FROM SENATOR EVANS

Question 8: Why wasn't geologic diversity included as one of
the criteria in the MUA, particularly given the
fact that the consultant who developed the
methodology for the Department strongly suggested
its inclusion? If time was a constraining factor
(i.e. concern over a delay of several weeks), why
are you only now submitting an amendment to the
Mission Plan to extend the first repository program
by five years?

Answer: With regard to the judgment not to perform the

additional portfolio analysis needed to consider
the effects of rock-type diversity, as in any
formal siting study, decisions had to be made about
what and what not to include in the formal
analysis. It was our judgment that the extra time,
cost, and effort necessary to perform a formal
portfolio analysis was not required to make a
responsible decision. A rigorous, formal
evaluation of the effects of diversity would
require a more complex form of analysis involving
highly speculative judgments about such things as
future licensing actions. Instead, we considered
the portfolio effects qualitatively, as is commonly
done in other portfolio-type problems. We believe
such an approach is entirely consistent with the
Act and the siting guidelines.

As indicated above, time was a factor but it was
not a "constraining factor." Perhaps most
important was our belief, which has since been

966

further supported by some new analysis (see
response to previous questions) , that a formal
portfolio analysis would not reveal important new
insights about the desirability of combinations of
sites, and thus, was not necessary to make a
responsible decision.

967

QUESTIONS FROM SENATOR EVANS

QUESTION 9: Why does the Department consider having three
different rock types to be such an overriding
requirement, given the fact that the NRC
recommendations on DOE site selection guidelines
only require that you have one other geologic media
in addition to salt?

ANSWER:

At one time, prior to the passage of tht Act, the
NRC did have a requirement stating: "The Commis-
sion considers the characterization of three sites
representing two geologic media at least one of
which is not salt to be the minimum necessary to
satisfy the requirements of NEPA." (10 CFR Part
51, February 25, 1981). The Act itself incor-
porated requirements making rock-type diversity an
important consideration in selecting sites for
characterization. NRC then revised its regulation
in a Federal Register Notice of March 12, 1984, to
bring it into conformance with the Act's require-
ments, which require diversity "to the extent prac-
ticable." Therefore, the NRC's minimum provision
for diversity of rock type referenced in the ques-
tion has been superceded by the Act's requirements.

DOE does not consider diversity of rock types to be
an "overriding requirement." Consideration of the
potential benefits of diversity was certainly a
factor in the decision, but it was not the only
factor. Other considerations, such as the

968

- 2 -
excellent predicted postclosure performance of the
Hanford site and the dominance of costs, were also
important.

Although the arg\iments for diversity have tradi-
tionally been along the lines of avoiding common-
mode failure during the postclosure period, we
believe the potential advantages to be far broader
in scope. For example, characterizing sites in
diverse geologic environments increases the likeli-
hood of being able to consider later in the siting
process a wider range of repository-design alterna-
tives and innovative ways to ensure compliance with
regulatory requirements than would otherwise be
possible. Examples are whether and when to back-
fill repository openings and ways to ensure that
retrievability requirements can be met.

Finally, we note that diversity of rock type is a
central theme of the siting provisions in the Act
itself. The requirement in Section 112(a) to
recommend sites in different media "to the extent
practicaible" was supported by all the major commit-
tees of jurisdiction in both the House and Senate,
and approved by both houses separately before final
approval of the Act.

969

QUESTIONS FROM SENATOR EVANS

QUESTION 10:'

Is geologic diversity going to be a predominant
factor for the second repository site portfolio
recommendations as well?

ANSWER:

Since diversity is a central theme in the siting
provisions in the Act (Sections 112(a) and
113(a)), is prudent, and has been part of the
geologic repository program since its inception, we
expect that it will be a factor in the second
repository siting decisions as well. We cannot say
now whether it will be a "predominant factor." The
Act specifies other considerations, such as region-
ality, to also be important factors in the second
round of repository siting decisions.

970

QUESTIONS FROM SENATOR EVANS

QUESTION 11:

Why did the Department omit the expected non-fatal
injuries and genetic disorders from its assessment
of health and safety impacts of repository con-
struction and operation? In fact, when these
figures are included in repository costs, doesn't
the Hanford site drop out of the top three of the
Department's recommended portfolio?

ANSWER:

Consideration was given to nonfatal health-and-
safety effects in Section 4.6.4 of the final meth-
odology report. As explained in the report,
nonfatal health-and-safety effects would be
expected to be highly correlated with fatal
effects. If the nonfatal effects were included
formally in the MUA, the result would be to give
greater weight to the health-and-safety related
objectives relative to the other objectives. Just
such a sensitivity analysis is presented in Chapter
4 of the methodology report, where it is noted that
the inclusion of such effects would not change the
overall ranking of sites because of the overwhelm-
ing dominance of costs.

By the phrase "when these figures are included in
repository costs," we assume that the reference is
to the proposal to include such effects as costs
since costs associated with worker health insurance
premixims and the like are economic consequences.
Such costs would be at most a few percent of the
total repository costs. The total repository costs

971

- 2 -
are a very uncertain basis for choice at this stage
of the design process, and were not allowed to
dominate the site-recommendation decision.

972

QUESTIONS FROM SENATOR EVANS

QUESTION 12;

Describe the factors which were considered in
establishing a value scale for socioeconomic and
environmental costs? Weren't these scales
estjQslished after interviewing only four DOE
managers? Haven't these rather arbitrarily
assigned values actually determined the preclosure
ranking of sites?

ANSWER :

The factors that were considered in establishing a
value scale are described in Appendix G of the
methodology report (pgs. G-56 and G-57) . Briefly,
the methodology report explains that the judgments
reflect the significance of the end points of the
corresponding performance-measure scales.
Admittedly, these judgments are difficult,
controversial, and somewhat subjective. However,
by making such judgments explicit, others can
evaluate them and see whether their own judgments
would lead to significantly different conclusions.
Such explicitness is a major benefit of a formal
methodology.

It is true that the tradeoffs of socioeconomic and
environmental impacts were established after
interviewing four senior DOE managers. DOE had and
continues to have no misconceptions that the
judgments of these individuals would necessarily be
the same as the other stakeholders in the decision.
DOE believes they are representative and
illustrative. Accordingly, extensive sensitivity

973

- 2 -
analyses were conducted to explore the implications
of alternative judgments. The results of the
sensitivity analysis did not affect the overall
ranking obtained by the MUA because of the
dominance of costs.

As explained above, DOE does not believe that the
assigned values are arbitrary. After repository
and transportation costs, the weights on the
factors had a fairly strong influence on the
preclosure ranking of the sites.

974

QUESTION 13:

QUESTIONS FROM SENATOR EVANS

The Department's own siting guidelines rank trans-
portation on the S2une level of importance as
environmental and social impacts. What rationale
does the Department have for selectively disregard-
ing transportation costs vis-a-vis these other
comparable factors?

We appreciate that this is a point of some confu-
sion with regard to the methodology report and the
recommendation report. The following paragraphs
should clarify the DOE's position.

The fundamental problem is that it is impossible to
translate the qualitative statements on relative
importance in the guidelines directly into quanti-
tative value tradeoffs required for the MUA. The
weights in the MUA reflect two things: value
tradeoffs and the ranges spanned by the performance
measures.* The statements on relative importance
in the guidelines were included without explicit
consideration of the ranges of the various preclo-
sure attributes. Rather they were included to
reflect perceived general values of society.

An example should clarify the point. Suppose the range
from best to worst on the transportation cost-scale was 2
billion dollars. Suppose further the range from best to
worst on the repository-cost scale was 10 billion dollars.
If the value tradeoff is that a transportation dollar is
worth the same as a repository-facility dollar — a judgme
of relative importance — then the weight for the reposito
cost scale must be 5 times that of the transportation-cost
scale. Because of the common mistake of asking which of
several attributes is most important, independent of their
ranges, the weights are known formally in MUA as "scaling
constants" to convey their dependence on the range of the
respective attributes.

975

- 2 -
If the qualitative statements in the guidelines
were forced improperly into the framework of MUA,
the result would be indefensible value tradeoffs.
For example, it is possible to interpret the quali-
tative statements on relative importance to require
DOE to value avoiding one repository-worker radio-
logical fatality more than one transportation-
worker radiological fatality, or to value a dollar
spent on waste transportation more than a dollar
spent on repository construction and operation.
The DOE did not and does not now think such value
tradeoffs are reasonable in the current problem
context, nor do we believe that the guidelines ever
intended such tradeoffs to be made. In fact,
language in the preamble to the guidelines suggests
that the intent of the "relative importance"
requirements had little or nothing to do with value
tradeoffs among competing attributes but instead
were threshold-type requirements to be considered
in sequence. That is, primary attention or "impor-
tance" should be given to finding sites qualified
under the postclosure guidelines because the
primary purpose of a geologic repository is to
provide long-term isolation for radioactive waste
in a manner that protects the health and safety of
the public. For the preclosure period, radiologi-
cal safety has the highest importance because.

976

- 3 -

unless It can be demonstrated to the satisfaction
of the NRC that the repository will meet Its worker
and public exposure standards, the repository
cannot be built. We note that this sequential
approach was indirectly suggested by the BRWM/NAS
in its letter of April 26, 1985, to Mr. Rusche:
"The post-closure guidelines are clearly the most
important and the adequacy of a site under the
postclosure guidelines must be clearly established
before attempting comparison with other sites.
Deficiencies in the pre-closure factors can be
mitigated substantially at increased cost."

Thus the DOE has satisfied the Intent of the guide-
lines within the framework of the MUA by using the
statements on relative importance qualitatively —
as philosophical guidance — in making value
tradeoffs among the various preclosure attributes.
As indicated previously, this approach was fully
endorsed by the BRWM/NAS and by another outside
reviewer of the methodology (see letter from M.R.
Saunpson and R. Jim, Yakima Indian Nation, to Mr.
Rusche, dated December 20, 1985) .

In addition to the technical argument outlined
above, we note that the preclosure system guide-
lines can readily be Interpreted to mean that all
costs, including tremsportatlon costs, be rele-

977

- 4 -
gated to the third preclosure guideline grouping
and bo assigned "least importance." This inter-
pretation may be based on a comparison of the
system guideline on environment, socioeconomics,
and transportation with the system guideline on
ease and cost of siting, construction, operation
and closure:

(2) Environment, Socioeconomics, and Transporta-
tion. During repository siting, construction,
operation, closure, and decommissioning

the public and the environment shall be ade-
quately protected from the hazards posed by
the disposal of radioactive waste. [Emphasis
added. ]

(3) Ease and Cost of Siting, Construction, Opera-
tion and Closure. Repository siting, con-
struction, operation, and closure shall be
demonstrated to be technically feasible on the
basis of reasonably available technology, and
the associated costs shall be demonstrated to
be reasonable relative to other available and
comparable siting options. [Emphasis added.]

It is clear that system guideline (2) emphasizes
the health and safety of the public, not costs.
System guideline (3) require consideration of
"associated costs" incurred during
"operation," which we believe would reasonably
include transportation costs. Since system guide-
lines take precedence over technical guidelines in
the siting-guidelines hierarchy and since the
reference to transportation cost is limited to a
single favorable condition iinder the technical

978

- 5 -
guideline on transportation, we believe treating
transportation costs as if it were in the third
(least important) preclosure grouping is appro-
priate.

In summary, the location of transportation costs
within the siting guidelines hierarchy is largely
irrelevant for the MUA. The language in the siting
guidelines allows flexibility to consider such
costs as "least important." Treating transporta-
tion costs the same as repository-facility costs in
the MUA was fully consistent with the point made by
DOE in the preamble to the guidelines:

Transportation-related costs, including
access-route construction, will be included in
the total system cost for comparison with the
costs of other siting options.
(Federal Register, Vol. 49, No. 236, Dec. 6,
1984, p. 47748.)

979

QUESTION 14;

ANSWER:

QUESTIONS FROM SENATOR EVANS

Construction of a repository at the Hanford site is
estimated to cost approximately $14 billion. Costs
at the four other sites under consideration were
estimated at $8-$ll billion. What is the Depart-
ment's rationale for disregarding such cost differ-
entials?

The available evidence clearly indicates that DOE
disregarded no siting factors in making the site-
recommendation decision. To the contrary, the
Secretary considered the full range of results and
insights derived from the application of the
methodology, one of which was that costs domi-
nated whenever individual factors were aggregated.
The result that costs would so completely dominate
the overall rankings of sites was initially sur-
prising and, frankly, somewhat unsettling as these
costs must be regarded as very preliminary, at
best. This point deserves some elaboration.

980

- 2 -
the salt sites have assumed contemporaneous
waste emplacement and backfill, thereby shortening
by many years the repository-operations period
relative to the Hanford site. (The long operations
period assumed for the Hanford site is a signifi-
cant contributor to its undiscounted cost.) If
such an assumption were disallowed by the NEC, the
cost estimates for the salt sites would increase
significantly, perhaps even above those for Han-
ford. Very recent cost information still under
review in OCRWM confirms the potential for major
swings (upwards of a billion dollars) in repository
costs.

Such basic and unpredictable system-design factors

as these led the Secretary to temper consideration

of costs with other considerations. Discomfort

over the dominant effect of costs on the MUA

results was apparently shared by the BRWM/NAS . In

their letter of April 10, 1986, to the Director,

OCRWM, they stated:

On the basis of the Board's review of the
application to a single site, it appears that
the expected total repository and transporta-
tion cost will have a major, if not control-
ling, effect on the rankings under pre-closure
factors. This recognition of the heavy depen-
dence on cost reinforces the Board's judg-
ment that the principal usefulness of the
multiattribute utility method is tcp illumi-
nate the factors involved in decision, rather
than to make the decision itself. [Emphasis
added. ]

981

QUESTIONS FROM SENATOR EVANS

QUESTION 15:

In the final version of the MUA, what was the
weighting given to postclosure performance in terms
of the composite score for each site? How does the
Department justify this figure given the fact that
in the Department's internal review, the comment
was made that the .57 figure seemed "contrived"?

ANSWER:

The DOE assigned no particular weight to postclo-
sure performance in the MUA. Rather, a complete
sensitivity analysis over the entire range of
values was performed. In the methodology report,
the 0.57 figure is simply a point at which the
lines representing the composite utilities of the
Hanford and Richton Dome sites cross under one
particular set of assumptions. Since this figure
is not used as the basis for the decision, there is
no need to justify its use.

982

QUESTIONS FROM SENATOR EVANS

QUESTION 16!

During DOE's internal review of the MUA, a list of
shortcomings in the document was prepared. Did
the Department respond to these shortcomings? If
so, in what manner? If not, why?

ANSWER:

The shortcomings referenced here are with regard
to the personal comments of one reviewer on a
working draft of the recommendation report. These
concerns were considered in the development of
other working drafts of the recommendation report.

983

QUESTIONS FROM SENATOR EVANS

QUESTION 17:

Many of my questions are based on a report prepared
by the House Subcommittee on General Oversight,
Northwest Power, and Forest Management, and the
Subcomittee on Energy Conservation and Power. The
study raises numerous questions regarding the
selection of the three sites for characterization.
Is it the Department's intention to formally
respond to this report? If so, when do you antici-
pate that you will release the response?

ANSWER:

The Department formally responded to the referenced
draft Subcommittee report in a letter dated
February 18, 1987, from Mr.- Rusche to Congressmen
Markey, Swift and Wyden. A copy of that response,
along with the incoming letter from the Congressmen,
is attached.

984

Department of Energy

Washington, DC 20585

FEB 1 8 19a|

Honorabla Edward J. Markey
House of Representatives
Washington, D.C. 20515

Dear. Mr. Markey:

We have carefully reviewed your letter of October 20, 1986, and
the accompanying staff memorandun entitled "Preliminary Results
of Staff Investigation into DOE 'a Selection of Three Sites for
Characterization as the Nation's First Repository for High-Level
Radioactive Waste." While we appreciate your Interest in under-
standing and analyzing the decision process, we are dismayed by
the comments made in these documents. After careful analysis, we
conclude that, almost without exception, the findings of your
staff's investigation are without basis.

Perhaps most important, we believe that you have not presented
any credible evidence to substantiate criticisms that the
Department of Energy (DOE) distorted and manipulated the MUA to
produce a desired result — because none exists. No technical
results whatever of that analysis were changed to promote or
downgrade any site. Furthermore, state-of-the-art techniques
were used to minimize the potential for conscious or unconscious
biases to affect the results, and the Board on Radioactive Waste
Management of the National Academy of Sciences (BRWM/NAS) stated
that they found no evidence of bias in DOE's implementation of
the methodology.

With respect to the comment that DOE edited the methodology and
recommendation reports to suppress information unfavorable to the
Hanford site or to the Deaf Smith site, we believe that the best
measure of DOE's actions is not what passages were deleted from
drafts during editing, but rather what passages remained in the
final published reports. Our review of the language you indicate
was removed from early drafts shows that in most cases language
very similar in substance — in some cases verbatim language —
was retained in the final reports. The remaining deletions were
made for legitimate editorial reasons, most often to eliminate
redundancies. Some deletions were also made to remove inappro-
priate judgments, for example, about which sites to characterize

985

-2-

or about th« ■Ignlflcanc* of differences among the sites, that
overstepped the bounds of the decision-aiding role of the MUA.
An excellent example of such an inappropriate judgment is found
in the quote that appears at the top of page three of your letter
of October 20-

Finally, we disagree that rocTc-type diversity was the sole basis
for our selection of Hanford, and that we should have included
that factor explicitly in the methodology. Diversity was clearly
an important consideration. Indeed, the Nuclear Waste Policy Act
of 1982 (the Act) itself requires DOE to recommend sites for
characterization in different rock types "to the extent
practicable," and diversity provides a number of important
benefits, including insurance against the possibility of common-
mode problems that could affect all sites in a given rock type.
But diversity was not the only consideration. As the MUA
indicates, Hanford is expected to have excellent postclosure
performance, and the lowest adverse impacts on the community and
environment in the vicinity of the site.

Because rock-type diversity is a property of portfolios of sites,
while the MUA compared sites in terms of their individual
characteristics, diversity could not have simply been "included
in the methodology, so it could have been considered and weighted
along with the other factors," as you suggest. A rigorous,
formal evaluation of the effects of diversity would have required
an additional, more complex form of analysis involving highly
speculative judgments about such things as future licensing
actions. Instead, we considered the portfolio effects qualita-
tively, as is commonly done in other portfolio-type problems.
Such an approach is entirely consistent with the Act and the DOE
siting guidelines.

In addition to responding to these specific comments, I would like
to clarify a misunderstanding that permeates both your letter and
your staff's analysis and that leads to many erroneous con-
clusions and inferences. This misunderstanding relates to the
capability and role of the MUA in the decision process. That you
view the MUA to be something that it is not is revealed by
references in your letter to the MUA as a "more rigorous
selection methodology," and in the statement that "DOE distorted
and disregarded its own scientific analysis in order to support
selection of the Hanford, Washington, site and to avoid selection
of the Richton Dome, Mississippi, site." These statements
indicate a belief that the MUA is capable of providing a
"scientific" ranking of the five nominated sites — a ranking
somehow devoid of judgment — which should then be used as tha
sole basis for selecting three for characterization. Without
this fundamental premise, there are no logical grounds for
criticizing DOE for not selecting the three top-ranked sites
identified by the MUA, or for inferring that DOE "ignored" the

986

-3-

results of tha MUA. Indeed, without that premise, there Is no
Incentive for DOE to engage In all of the "manipulations" and
"distortions" you believe were undertaken to promote Hanford Into
the top three sites.

Limiting the role of the MUA In the decision process is appro-
priate for four important reasons. First, as attractive as it
might be to shift the burden of decision to a "scientific
decision methodology" (a phrase used in your staff memo to
describe the MUA), no such methodology exists. As the BRWM/KAS
stated in its review of the MUA, "there is no single, generally
accepted procedure for integrating technical, economic, environ-
mental, socioeconomic, and health and safety issues for ranking
sites." The guidelines do not specify any particular method for
ranking sites. Indeed, the idea of an "objective" numerical
method for "computing" siting decisions was discussed and
rejected in the final decision about the guidelines. We could
find no support in the technical community for such a method and
were unable to determine a framework that would be sufficiently
complete to eliminate the exercise of judgment on the part of
Federal officials who make the siting decisions. In its
April 2, 1984, letters to DOE and the KRC concerning the draft
siting guidelines, the BRWM/NAS said: "The combination of
complexity and uncertainty [in the repository siting problem]
implies that DOE must be accorded substantial discretion to
exercise its best technical judgments in recommending three of
the nominated sites. ..."

Second, the MUA, like any such methodology, involves the simpli-
fication of a complex reality. It is capable of providing only a
partial and approximate accounting of the many factors important
to the site-recommendation decision. Basing siting decisions
solely on the numerical results of an unavoidably limited formal
analysis would be improper. These are decisions about real sites
that affect unique communities and people, not about mathematical
abstractions. No amount of analysis would relieve DOE of the
ultimate responsibility to make its decision based on considera-
tion of the full range of data and information in the Environ-
mental Assessments (EAs) .

987

-4-

Third, th« signlficanc* of the aggregate ranking produced by the
methodology must be tempered by an appreciation of the relatively
limited data available before characterization. For example, the
cost estimates used in the MUA are based on current system
designs that may change significantly as a resalt of the informa-
tion gained during site characterization and of later decisioiis
about the overall waste-management system (e.g., construction of
an MBS) . A geologic repository is a first-of-its-kind engi-
neering task, and it is wise to be modest about our ability to
predict the ultimate design that will emerge at the end of the
licensing process (also a first-of-its-kind enterprise) . The
range of uncertainty on costs incorporated in the MUA does not
include uncertainty about system design, only the types of
uncertainties inherent in any large construction project with a
given design. Uncertainties not accounted for in the MUA, such
as the possibility of as-yet-unidentified factors, may ultimately
overshadow current estimates of site differences.

Finally, any methodology for ranking sites based on their
individual attributes would be unable to fully take account of
the important factor of rock-type diversity, which is an
attribute of sets of sites rather than of individual sites. As
discussed earlier and in the enclosure to this letter, there is
no a priori reason for concluding that the three sites that rank
at the top when the sites are considered individually would make
up the best sst of three for characterization when diversity is
taken into account. Thus there are no logical grounds for
concluding that failure to select the top-ranked three sites is
prima facie evidence of flawed decisionmaking.

In summary, because of the limitations of this or of any formal
methodology that might be used to model the key factors in a
decision problem, it is necessary to supplement the insights
gained from the methodology with professional experience and
judgment. That the methodology must be decision-aiding and not
decision-making has been stressed by DOE from the beginning and
was unequivocally endorsed by the BRWM/NAS in its review letters
to DOE. Since the MUA was never intended or designed to make the
decision, all of the criticisms based on the incorrect premise
that it was, are unfounded.

Despite its limitations, the application of a formal methodology
as part of the decision process provided a number of important
advantages. Unlike the simpler methods used to rank the sites in
the draft EAs, the MUA produced quantitative estimates of the
performance of each site on each siting factor specified in the
guidelines. Combining these estimates with the explicit value
judgments required by the analysis gave valuable insights into
the importance of the differences among the sites. For example,
it showed that all of the sites are expected to release radio-
active materials at levels that are very far below the levels
allowed by EPA standards, and that the differences between the
sites are not significant.

988

-5-

Furthemor*, th« MUA makes the process of analysis explicit and
open to review. It clearly separates the technical judgments
about the performance and Impacts of a repository at the various
sites from value judgments about the desirability of those
possible impacts, and makes both types of judgments explicit.
This makes it easy for readers to determine which judgments are
important to the conclusions of the analysis and which are not,
and allows them to test the implications of different value
judgments and technical judgments. DOE does not expect that
everyone will agree with all of the assumptions and judgments
included in the analysis. However, DOE believes that it is very
valuable to have those assumptions and judgments stated clearly
and precisely, so that others can evaluate them and see whether
their own judgments would lead to significantly different
conclusions.

I would welcome the opportunity to discuss these points with you
further at your convenience.

Sincerely,

Ben C. Rusche, Director
Office of Civilian Radioactiv*
Waste Management

Enclosure

989

Department of Energy

Washington. DC 20585

FEB 18 1987

Honorable Ron Wyden
House of Representatives
Washington, D.C. 20515

Dear Mr. Wyden:

Perhaps most important, we believe that you have not presented
any credible evidence to substantiate criticisms that the
Department of Energy (DOE) distorted and manipulated the KUA to
produce a desired result — because none exists. No technical
results whatever of that analysis were changed to promote or
downgrade any site. Furthermore, state-of-the-art techniques
were used to minimize the potential for conscious or unconscious
biases to affect the results, and the Board on Radioactive Waste
Management of the National Academy of Sciences (BRWM/NAS) stated
that they found no evidence of bias in DOE's implementation of
the methodology.

with respect to the comment that DOE edited the methodology and
recomir.endation reports to suppress information unfavorable to the
Hanford site or to the Deaf Smith site, we believe that the best
measure of DOE's actions is not what passages were deleted from
drafts during editing, but rather what passages remained in the
final published reports. Our review of the language you indicate
was removed from early drafts shows that in most cases language
very similar in substance — in some cases verbatim language —
was retained in the final reports. The remaining deletions were
made for legitimate editorial reasons, most often to eliminate
redundancies. Some deletions were also made to remove inappro-
priate judgments, for example, jQsout which sites to characterize

77-10^ 0-87-32

990

-2-

or ibout tha significance of differences among the sites, that
overstepped tha bounds of the decision-aiding role of the MUA.
An excellent exanple of such an inappropriate judgment is found
in the quote that appears at the top of page three of your letter
of October 20.

Finally, we disagree that rock-type diversity was the sole basis
for our selection of Hanford, and that we should have included
that factor explicitly in the methodology. Diversity was clearly
an important consideration. Indeed, the Nuclear Waste Policy Act
of 1982 (the Act) itself requires DOE to recojsnnend sites for
.characterization in different rock types "to the extent
practicable," and diversity provides a number of important
benefits, including insuramce against the possibility of common-
inode problems that could affect all sites in a given rock type.
But diversity was not the only consideration. As the MUA
indicates, Hanford is expected to have excellent postclosure
performance, and the lowest adverse impacts on the community and
environment in the vicinity of the site.

Because rock-type diversity is a property of portfolios of sites,
while the MUA compared sites in terms of their individual
characteristics, diversity could not have simply been "included
in the methodology, so it could have been considered and weighted
along with the other factors," as you suggest. A rigorous,
formal evaluation of the effects of diversity would have required
an additional, more complex form of analysis involving highly
speculative judgments about such things as future licensing
actions. Instead, we considered the portfolio effects qualita-
tively, as is commonly done in other portfolio-type problems.
Such an approach is entirely consistent with the Act and the DOE
siting guidelines.

In addition to responding to these specific comments, I would like
to clarify a misunderstanding that permeates both your letter and
your staff's analysis and that leads to many erroneous con-
clusions and inferences. This misunderstanding relates to the
capability and role of the MUA in the decision process. That you
view the MUA to be something that it is not is revealed by
references in your letter to the MUA as a "more rigorous
selection methodology," and in the statement that "DOE distorted
and disregarded its own scientific analysis in order to support
selection of the Hanford, Washington, site and to avoid selection
of the Richton Dome, Mississippi, site." These statements
indicate a belief that the MUA is capable of providing a
"scientific" ranking of the five nominated sites — a ranking
somehow devoid of judgment — which should then be used as the
sole basis for selecting three for characterization. Without
this fundamental premise, there are no logical grounds for
criticizing DOE for not selecting the three top-ranked sites
identified by the MUA, or for inferring that DOE "ignored" the

991

-3-

results of the KUA. Indeed, without that premise, there is no
incentive for DOE to engage in all of the "nanipulations" and
"distortions" you believe were undertaken to promote Hanford into
the top three sites.

Limiting the role of the HUA in the decision process is appro-
priate for four important reasons. First, as attractive as it
might be to shift the burden of decision to a "scientific
decision methodology" (a phrase used in your staff memo to
describe the MUA), no such methodology exists. As the BRWM/NAS
stated in its review of the MUA, "there is no single, generally
accepted procedure for integrating technical, economic, environ-
mentar, socioeconomic, and health and safety issues for ranking
sites." The guidelines do not specify any particular method for
ranking sites. Indeed, the idea of an "objective" numerical
method for "computing" siting decisions was discussed and
rejected in the final decision about the guidelines. We could
find no support in the technical community for such a method and
were unable to determine a framework that would be sufficiently
complete to eliminate the exercise of judgment on the part of
Federal officials who make the siting decisions. In its
April 2, 1984, letters to DOE and the NRC concerning the draft
siting guidelines, the BRWM/NAS said: "The combination of
complexity and uncertainty [in the repository siting problem]
implies that DOE must be accorded substantial discretion to
exercise its best technical judgments in recommending three of
the nominated sites. ..."

Second, the MUA, like any such methodology, involves the simpli-
fication of a complex reality. It is capable of providing only a
partial and approximate accounting of the many factors important
to the site-recommendation decision. Basing siting decisions
solely on the niimerical results of an unavoidably limited formal
analysis would be improper. These are decisions about real sites
that affect unique communities and people, not about mathematical
abstractions. Ko amount of analysis would relieve DOE of the
ultimate responsibility to make its decision based on considera-
tion of the full range of data and information in the Environ-
mental Assessments (EAs) .

992

-4-

Thlrd, the significance of the aggregate ranking produced by the
methodology must be tempered by an appreciation of the relatively
limited data available before characterization. For example, the
cost estimates used in the MUA are based on current system
designs that may change significantly as a result of the informa-
tion gained during site characterization and of later decisions
about the overall waste-management system (e.g., construction of
an MRS) . A geologic repository is a f irst-of-its-kind engi-
neering task, and it is wise to be modest about our ability to
predict the ultimate design that will emerge at the end of the
licensing process (also a f irst-of-its-kind enterprise) . The
range of uncertainty on costs incorporated in the MUA does not
include uncertainty about system design, only the types of
uncertainties inherent in any large construction project with a
given design. Uncertainties not accounted for in the MUA, such
as the possibility of as-yet-unidentified factors, may ultimately
overshadow current estimates of site differences.

Finally, any methodology for ranking sites based on their
individual attributes would be unable to fully take account of
the important factor of rock-type diversity, which is an
attribute of sets of sites rather than of individual sites. As
discussed earlier and in the enclosure to this letter, there is
no a priori reason for concluding that the three sites that rank
at the top when the sites are considered individually would make
up the best set of three for characterization when diversity is
taken into account. Thus there are no logical grounds for
concluding that failure to select the top-ranked three sites is
prima facie evidence of flawed decisionmaking.

Despite its limitations, the application of a formal methodology
as part of the decision process provided a number of important
advantages. Unlike the simpler methods used to rank the sites in
the draft EAs, the MUA produced quantitative estimates of the
performance of each site on each siting factor specified in the
guidelines. Combining these estimates with the explicit value
judgments required by the analysis gave valuable insights into
the importance of the differences among the sites. For example,
it showed that all of the sites are expected to release radio-
active materials at levels that are very far below the levels
allowed by EPA standards, and that the differences between the
sites are not significant.

993

-5-

Furthennor*, the MUA makes the procese of analysis explicit and
open to review. It clearly separates the technical judgments
about the performance and impacts of a repository at the various
sites from value judgments about the desirability of those
possible impacts, and makes both types of judgments explicit.
This makes it easy for readers to determine which judgments are
important to the conclusions of the analysis and which are not,
and allows them to test the implications of different value
judgments and technical judgments. DOE does not expect that
everyone will agree with all of the assumptions and judgments
included in the analysis. However, DOE believes that it is very
valuable to have those assumptions and judgments stated clearly
and precisely, so that others can evaluate them and see whether
their own judgments would lead to significantly different
conclusions.

In conclusion, the responses we have provided here and in the
enclosed paper demonstrate that all comments related to
developing the MUA after having fixed immutably on a predeter-
mined set of sites, as well as comments related to manipulation
of results, are without foundation. We do not believe that the
open and well-documented process by which DOE has approached the
selection of sites for characterization should damage the
credibility of the repository program. Quito the contrary, the
fact that the Subcommittee staff was able to critically analyze
the decision demonstrates the unprecedented openness of the
decision process. For these reasons, we must reject your
statement that the site-recommendation decision is "seriously
flawed and totally unsupportable."

I would welcome the opportunity to discuss these points with you
further at your convenience.

Sincerely,

Ben C. Rusche, Director
Office of Civilian Radioactive
Waste Management

Enclosure

994

Department of Energy

Washington. DC 20585

FEB 1 8 1987

Honorable Al Swift
House of Representatives
Washington, D.C. 20515

Dear Mr. Swift:

We have carefully reviewed your letter of October 20, 1986, and
the accompanying staff memorandum entitled "Preliminary Results
of Staff Investigation into DOE 'a Selection of Three Sites for
Characterization as the Nation's First Repository for High-Level
Radioactive Waste." While we appreciate your interest in under-
standing and analyzing the decision process, we are dismayed by
the comments made in these documents. After careful analysis, we
conclude that, almost without exception, the findings of your
staff's investigation are without basis.

Perhaps most important, we believe that you have not presented
any credible evidence to substantiate criticisms that the
Department of Energy (DOE) distorted and manipulated the MUA to
produce a desired result — because none exists. No technical
results whatever of that analysis were changed to promote or
downgrade any site. Furthermore, state-of-the-art techniques
were used to minimize the potential for conscious or unconscious
biases to affect the results, and the Board on Radioactive Waste
Management of the National Academy of Sciences (BRWM/NAS) stated
that they found no evidence of bias in DOE's implementation of
the methodology.

With respect to the comment that DOE edited the methodology and
recommendation reports to suppress information unfavorable to the
Hanford site or to the Deaf Smith site, we believe that the best
measure of DOE's actions is not what passages were deleted from
drafts during editing, but rather what passages remained in the
■final published reports. Our review of the language you indicate
was removed from early drafts shows that in most cases language
very similar in substance — in some cases verbatim language —
was retained in the final reports. The remaining deletions were
made for legitimate editorial reasons, most often to eliminate
redundancies. Some deletions were also made to remove inappro-
priate judgments, for exampls, about which sites to characterize

995

-2-

or about the signlflcanca ot differences among the sites, that
overstepped the bounds of the decision-aiding role of the MUA.
An excellent example of such an inappropriate judgment is found
in the quote that appears at the top of page three of your letter
of October 20.

Finally, we disagree that rock-type diversity was the sole basis
for our selection of Hanford, and. that we should have included
that factor explicitly in the methodology. Diversity was clearly
an important consideration. Indeed, the Nuclear Waste Policy Act
of 1982 (the Act) itself requires DOE to recommend sites for
characterization in different rock types "to the extent
practicable," and diversity provides a number of important
benefits, including insurance against the possibility of common-
mode problems that could affect all sites in a given rock type.
But diversity was not the only consideration. As the MUA
indicates, Hanford is expected to have excellent postclosure
performance, and the lowest adverse impacts on the community and
environment in the vicinity of the site.

Because rock-type diversity is a property of portfolios of sites,
while the MUA compared sites in terms of their individual
characteristics, diversity could not have simply been "included
in the methodology, so it could have been considered and weighted
along with the other factors," as you suggest. A rigorous,
formal evaluation of the effects of diversity would have required
an additional, more complex form of analysis involving highly
speculative judgments about such things as future licensing
actions. Instead, we considered the portfolio effects qualita-
tively, as is commonly done in other portfolio-type problems.'
Such an approach is entirely consistent with the Act and the DOE
siting guidelines.

In addition to responding to these specific comments, I would like
to clarify a misunderstanding that permeates both your letter and
your staff's analysis and that leads to many erroneous con-
clusions and inferences. This misunderstanding relates to the
capability and role of the MUA in the decision process. That you
view the MUA to be something that it is not is revealed by
references in your letter to the MUA as a "more rigorous
selection methodology," and in the statement that "DOE distorted
and disregarded its own scientific analysis in order to support
selection of the Hanford, Washington, site and to avoid selection
of the Richton Dome, Mississippi, site." These statements
indicate a belief that the MUA is capable of providing a
"scientific" ranking of the five nominated sites — a ranking
somehow devoid of judgment — which should then be used as the
sole basis for selecting three for characterization. Without
this fundamental premise, there are no logical grounds for
criticizing DOE for not selecting the three top-ranked sites
identified by the MUA, or for inferring that DOE "ignored" the

996

-3-

resultB of thtt MUA. Indeed, without that premise, there Is no
incentive for DOE to engage in all of the "nanlpulatlons" and
"distortions" you believe were undertaken to^ promote Hanford into
the top three sites.

This basic premise is false. The methodology was never intended
or designed to make the decision about which sites to
characterize, only to aid the responsible decision-maker, the
Secretary of Energy, by providing insights about the advantages
and disadvantages of the sites. There was no presumption that
the three sites ranked highest by the KUA should be the three
selected for characterization, and thus no need or incentive to
manipulate the MUA to promote any supposedly favored site into
the top three.

Limiting the role of the MUA in the decision process is appro-
priate for four important reasons. First, as attractive as it
might be to shift the burden of decision to a "scientific
decision methodology" (a phrase used in your staff memo to
describe the MUA), no such methodology exists. As the BRWM/NAS
stated in its review of the MUA, "there is no single, generally
accepted procedure for integrating technical, economic, environ-
mental, socioeconomic, and health and safety Issues for ranking
sites." The guidelines do not specify any particular method for
ranking sites. Indeed, the idea of an "objective" numerical
method for "computing" siting decisions was discussed and
rejected in the final decision about the guidelines. We could
find no support in the technical community for such a method and
were unable to determine a framework that would be sufficiently
complete to eliminate the exercise of judgment on the part of
Federal officials who make the siting decisions. In its
April 2, 1984, letters to DOE and the KRC concerning the draft
siting guidelines, the BRWM/NAS said: "The combination of
complexity and uncertainty [in the repository siting problem]
Implies that DOE must be accorded substantial discretion to
exercise its best technical judgments in recommending three of
the nominated sites. ..."

Second, the MUA, like any such methodology, involves the simpli-
fication of a complex reality. - It is capable of providing only a
partial and approximate accounting of the many factors important
to thu site-recommendation decision. Basing siting decisions
solely on the numerical results of an unavoidably limited formal
analysis would be improper. These are decisions about real sites
that affect unique communities and people, not about mathematical
abstractions. No amount of analysis would relieve DOE of the
ultimate responsibility to make its decision based on considera-
tion of the full range of data and information in the Environ-
mental Assessments (EAs) .

997

_4-

Thlrd, th« significance of the aggregate ranking produced by the
methodology must be tempered by an appreciation of the relatively
limited data available before characterization. For example, the
cost estimates used in the MUA are based on current system
designs that may change significantly as a result of the informa-
tion gained during site characterization and of later decisions
about the overall waste-management system (e.g., construction of
an ^ros) . A geologic repository is a f irst-of-its-klnd engi-
neering task, and it is wise to be modest about our ability to
predict the ultimate design that will emerge at the end of the
licensing process (also a f irst-of-its-klnd enterprise) . The
range of uncertainty on costs incorporated in the MUA does not
Include uncertainty about system design, only the types of
uncertainties Inherent in any large construction project with a
given design. Uncertainties not accounted for in the MUA, such
as the possibility of as-yet-unldentif led factors, may ultimately
overshadow current estimates of site differences.

Finally, any methodology for ranking sites based on their
individual attributes would be unable to fully take account of
the Important factor cf rock-type diversity, which is an
attribute of sets of sites rather than of individual sites. As
discussed earlier and in the enclosure to this letter, there is
no a priori reason for concluding that the three sites that rank
at the top when the sites are considered individually would make
up the best set of three for characterization when diversity is
taken into account. Thus there are no logical grounds for
concluding that failure to select the top-ranked three sites is
prima facie evidence of flawed decisionmaking.

In sunmary, because of the limitations of this or of any formal
methodology that might be used to model the key factors in a
decision problem, it is necessary to supplement the insights
gained from the methodology with professional experience and
judgment. That the methodology must be decision-aiding and not
decision-making has been stressed by DOE from the beginning and
was unequivocally endorsed by the BRWM/NAS in its review letters
to DOE. Since the MUA was never intended or designed to make the
decision, all of the criticisms based on the Incorrect premise
that it was, are unfounded.

Despite its limitations, the application of a formal methodology
as part of the decision process provided a number of Important
advantages. Unlike the simpler methods used to rank the sites In
the draft EAs, the MUA produced quantitative estimates of the
performance of each site on each siting factor specified in the
guidelines. Combining these estimates with the explicit value
judgments required by the analysis gave valuable insights into
the importance of the differences among the sites. For example,
it showed that all of the sites are expected to release radio-
active materials at levels that are very far below the levels
allowed by EPA standards, and that the differences between the
sites are not significemt.

998

-5-

Furthermoro, the MUA makes the process of analysis explicit and
open to review. It clearly separates the technical judgments
about the performance and impacts of a repository at the various
sites from value judgments about the desirability of those
possible impacts, and makes both types of judgments explicit.
This makes it easy for readers to determine which judgments are
important to the conclusions of the analysis and which are not,
and allows them to test the implications of different value
judgments and technical judgments. DOE doas not expect that
everyone will agree with all of the assumptions and judgments
included in the analysis. However, DOE believes that It is very
valuable to have those assumptions and judgments stated clearly
and precisely, so that others can evaluate them and see whether
their own judgments would lead to significantly different
conclusions.

In conclusion, the responses we have provided here and in the
enclosed paper demonstrate that all comments related to
developing the MUA after having fixed immutably on a predeter-
mined set of sites, as well as comments related to manipulation
of results, are without foundation. We do not believe ihat the
open and well-documented process by which DOE has approached the
selection of sites for characterization should damage the
credibility of the repository program. Quite the contrary, the
fact that the Subcommittee staff was able to critically analyze
the decision demonstrates the unprecedented openness of the
decision process. For these reasons, we must reject your
statement that the site-recommendation decision is "seriously
flawed and totally unsupportable. "

I v/ould welcome the opportunity to discuss these points with you
further at your convenience.

Sincerely,

Ben C. Rusche, Director
Office of Civilian Radioactive
Waste Management

Enclosur*

999

ENCLOSURE

Comment 1; DOE deliberately misled the Congress as to the
existence of documents.

DOE did not deliberately mislead the Subcommittee on Energy
Conservation and Power as to the existence of draft working
documents of either the methodology report or the recommendation
report. DOE did not retain working drafts In Its general office
files. Such a procedure Is routine and consistent with DOE
directives not to retain such materials. In some cases, working
drafts of these documents were retained In the personal files of
individuals intimately Involved with writing or reviewing these
documents. All retained documents, whether in official or
personal files, were made readily available for the perusal of
the Subcommittee staff and, for its convenience, were categorized
and filed at one central location at DOE.

Comment 2: DOE systematically and deliberately distorted,
suppressed, and manipulated its own scientific data and analysis
in an effort to promote the Hanford site and to downgrade the
Richton Dome site.

The statement that DOE systematically distorted and manipulated
data, that is, technical and value judgments, in working drafts
of the methodology report is false. No technical results
whatsoever were changed to promote the Hanford site or downgrade
the Richton Dome site or any site for that matter. To check this
statement, the Subcommittee is invited to compare data contained
in the March 17, 1986, submittal to the Board on Radioactive
Waste Management of the National Academy of Sciences (BRWM/NAS)
with data in the final methodology report. The estimates of
preclosure impacts for the Richton Dome site, for example, are
exactly the same in the two dociments (cf. Table 4-9 in the
March 17 submittal with Table 4-8 in the final methodology
report) .

The Subcommittee further contends that the fact that the prepara-
tion of the methodology and recommendation reports overlapped to
some degree is evidence of wrongdoing. We disagree. The
methodology report was In large measure complete — certainly the
major Insights had been communicated to the Director, OCRWM — by
the time the first meeting discussing the need for the recom-
mendation report was held on April 4, 1986. In any case, since
the methodology was never Intended or designed to make the
decision, we do not regard the parallel preparation of the two
documents as Irregular.

Irrespective of the timing issue, the central question is
whether, by deletions, DOE suppressed information about the
^estimated deficiencies of the Hanford site. We submit that a
truer, more accurate measure of whether Information was
suppressed is not what passages were deleted during the routine

1000

editing proceas but rather what passages remained after that
process. The following passages from the final methodology
report demonstrate clearly that comments related to suppressing
vinfavorable information about any of the sites are unfounded.

Pg. 3-43, first paragraph; "From the relative ranking of the
sites and estimates of uncertainty, it appears that the
postclosure performance of a repository at the Hanford site
would be slightly less favorable than that of a repository at
the salt sites or at the Yucca Mountain site."

Pg. 4-36, fifth paragraph: •^. . . The overall preclosure
ranking is Yucca Mountain, Richton Dome, Deaf Smith, Davis
Canyon, and Hanford. In terms of equivalent-consequence
impacts, the difference between Yucca Mountain and Richton is
the equivalent of 1119 million dollars, between Richton Dome
and Deaf Smith 640 million dollars, between Deaf Smith and
Davis Canyon 1127 million dollars, and between Davis Canyon
and Hanford 2552 million dollars.**

Pg. 4-37, first paragraph: "... the relative [preclosure]
ranking of sites obtained for the base case is totally
■ insensitive to any changes in the level of impacts except for
costs. Furthermore, the ranking is insensitive to any
reasonable changes in the value judgments or in the form of
the utility function."

Pg. 5-4, third paragraph: "... certain patterns are clear
and stable under a wide range of assumptions. The Hanford
site is in all cases ranked fifth. ..."

Other sentences stating estimated deficiences of the Hanford site
appear in Chapters 3, 4, and 5 of the final methodology report.

On review of statements like those quoted above.

Dr. Frank L. Parker, Chairman of the BRWM/NAS, in a letter to

Congressman Weaver dated November 6, 1986, stated:

"In view of these summary statements, I cannot possibly agree
with Findings 5, 6, and 7 that state that the MUA was
•distorted,' 'flawed,' and 'contrived,' to place Hanford high
in the list of sites to be characterized."

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1001

Whil* it i« tru« that during th« cours* of developing th«
methodology report passages were '^oth added and deleted from
working drafts, these changes were appropriate because they were
all directed at improving the quality of the report. As in any
writing job, critical reviews of drafts by people other than the
primary authors (i.e., others on the MUA team and DOE management)
identified nimerous opportunities for improving readability by
clarifying, shuffling, reorganizing, and, in some instances,
deleting text. Specifically, EXDE deleted passages to eliminate:
1) redundancies, 2) unsupported or overstated conclusions,
3) inappropriate value-laden language, and 4) unnecessarily
complex language. The fact that redundancies should be minimized
needs no elaboration. The importance of the other criteria for
deleting text and examples are discussed below.

The quote that appears at the top of page 3 of the Congressional
letter of October 20, provides an example of an unsupported state-
ment that appeared in working drafts of the methodology report.
This paragraph was properly deleted because it could not be
supported by the results of the MUA. Because the MUA compared
the sites on an individual basis rather than as portfolios, it is
not possible to conclude from it alone what set of three sites
should be characterized. In addition, several statements in the
deleted passage contained value-laden remarks, such as a
conclusion that a difference was "substantial." Other examples
of value-laden words that were generally deleted or modified are
"significant" and "reasonable." We believed that value judgments
about the significance of the results were best left to the
Secretary as the decisionmaker and that such judgments should
appear in the recommendation report, not in the MUA. In sum,
this paragraph and similar deleted passages overstepped the
bounds of the role of the decision-aiding methodology.

An example of unnecessarily complex language that was deleted
appears on page\29 of the staff memorandum. The deleted passage
appeared in the conclusions section of Chapter 4, the preclosure
analysis of the sites, and concerned the probability for a
significant correlation in total costs among the sites. The
passage was deleted because it seemed out of place inasmuch as
the section was intended as a summary of conclusions. This
detailed, technical point had been covered earlier in the main
text of the chapter.

In summary, the central contention of the Congressional letter
and staff analysis is false. A cursory comparison of language in
early drafts of the methodology report against the final report
shows that, in most cases, verbatim language, or language very
similar in substance, was retained. Deletions were made for
proper and legitimate reasons. Such facts lend no credibility to
the Subcommittee's comments related to tailoring the final
methodology report to suit a predetermined choice of sites.

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1002

Comment 3: DOE biased weighting factore in the MUX to promote
the selection of the Hanford site.

This comment is without foundation. In fact, great care was
taken to safeguard against bias and manipulation of the «ethod-
ology. First, by judicious selection of people, DOE ensured that
no individual providing input to the methodology had any profes-
sional or economic incentives for the selection or rejection of a
particular site. All judgmental inputs were the joint responsi-
bility of many individuals, thereby diluting the influence of any
single individual and creating a situation where individual bias
would be apparent through comparisons across individuals.
Second, care was taken to maintain separation between individuals
making scientific judgments (e.g., probabilities of disruptive
scenarios) and those making policy or value judgments (e.g.,
weighting factors) . Such a division of labor is recommended by
the National Academy of Sciences* and in the professional
decision-analysis literature.

Third, formal state-of-the-art assessment techniques designed to
minimize bias were used to obtain inputs to the methodology.
These assessments were highly detailed and disaggregated, so much
so that a computer was required to aggregate and analyze the
implications of individual assessments. As a consequence, at the
time at which the assessments were made, the implications for
overall rankings were very difficult for the individuals
providing the judgments to determine. Finally, all judgments
were required to be supported by an explicit logic. Particularly
controversial judgments, such as value tradeoffs between dollars
and fatalities, were compared whenever possible with the values
recommended for or implied by other Federal-agency decisions.

- The requirement that all judgments be justified in terms
of logic and information in the Environmental Assessments
(EAs) limits the extent to which any input could be
successfully biased.

- Due to the complexity of the MUA model it would be
extremely difficult for a participant to know which of his
inputs, if biased, would have an effect on conclusions.

♦National Research Council, 1983. Risk Assessment in the Federal
Government; Managing the Process, Commission on Life Sciences,
National Academy of Sciences, Washington, D.C.

-4-

1003

- Du« to the •xtensiv* opportunities for crosschecking to
identify inconsistencies, any bias in judgments would have
to be kept small to avoid making those biases obvious to
other participants.

- Since any individual provided only a small fraction of the
necessary inputs, that person's ability to influence
conclusions would be snail.

Finally, in further support of thi'S position, we note that the
BRWM/NAS said they saw no indication of bias in DOE's implementa-
tion of the methodology (see April 10, 1986, letter from
F. Parker to B. Rusche) .

Comment 4: DOE, in disregard of its own siting guidelines,
arbitrarTTy disregarded siting factors such as total costs in an
effort to promote the Hanford site.

The available evidence clearly indicates that DOE disregarded no
siting factors in making the site-recommendation decision. To
the contrary, the Secretary considered the full range of results
and insights derived from the application of the methodology, one
of which was that costs dominated whenever individual factors
were aggregated. The result that costs would so completely
dominate the overall rankings of sites was initially surprising
and, frankly, somewhat unsettling as these costs must be regarded
as very preliminary, at best. This point deserves some
elaboration.

Such basic and unpredictable system-design factors as these led
the Secretary to temper consideration of costs with other
considerations. Discomfort over the dominant effect of costs on
the KUA results was apparently shared by the BRWM/NAS. In their
letter of April 10, 1986, to the Director, OCRWM, they stated:

-5-

1004

"On th« basis of th« Board's rsvlew of th« application to a
singls site, it appears that the expected total repository
and transportation costs will have a major, if not control-
ling, effect on the rankings under pre-closure factors. This
recocrnitlon of the heavy dependence on cost reinforces the
Board's judgment that the principal usefulness of the multi-
attribute utility method is to illuminate the factors
involved in a decision, rather than to make the decision
itself."" [Emphasis added.]

Kot only were all factors considered in making the decision, but
they were accorded their proper weight consistent with provisions
of the siting guidelines. The relative importance provisions in
the siting guidelines are qualitative and reflect general
perceived values of society. This is in contrast to the quanti-
tative information required for the MUA. DOE gave operational
meaning to the qualitative guidance by ensuring that value
tradeoffs — judgments of relative importance — be consistent
with a conservative philosophy in which costs ara among the least
important and public health and safety are most important. Such
an approach is consistent with the guidance from the BRWM/NAS and
from other independent reviewers of the methodology (see letter
dated December 20, 1985, from M.R. Sampson and R.\Jim, Yakima
Indian Nation, to B. Rusche) .

CoTTjnent 5; DOE deliberately did an incomplete multiattrlbute
utility analysis for fear that a complete analysis would not
support the selection of the Hanford site.

Consideration was given to nonfatal health-and-safety impacts in
Section 4.6.4 of the methodology report. As explained in the
report, the effect of including nonfatal impacts would be to give
•greater weight to the health-and-safety related objectives
relative to the other objectives. Just such a sensitivity
analysis is described in Chapter 4 of the methodology report (see
Table 4-16), where it is argued that the inclusion of such
impacts would not change the overall ranking of sites (although
the spread between sites changes) because of the overwhelming
dominance of costs.

-€-

1005

with regard to th« judgment not to perfoxm the additional
portfolio analysis needed to consider the effects of rock-type
diversity, we acknowledge that such an analysis might possibly
have provided additional insights about the relative desirability
of portfolios of three sites. As in any formal siting study,
decisions- had to be made about what and what not to Include in
the formal analysis. It was our judgment that the extra time,
cost, and effort necessary to perform a formal portfolio analysis
was not required to raaka a responsible decision. A rigorous,
formal evaluation of the effects of diversity would require a
more complex form of analysis involving highly speculative
judgments about such things as future licensing actions.
Instead, we considered the portfolio effects qualitatively, as is
commonly done in other portfolio-type problems. We believe such
an approach is entirely consistent with the Act and the siting
guidelines.

Related to this point is the role diversity played in the
decision to select Hanford for characterization. It is clear
from the Congressional letter that this role was misunderstood.
Consideration of the potential benefits of diversity was
certainly a factor in the decision. Although the arguments for
diversity have traditionally been along the lines of avoiding
common-mode failure during the postclosure period, we believe the
potential advantages to be far broader in scope. For example,
characterizing sites in diverse geologic environments increases
the likelihood of being able to consider later in the siting
process a wider range of repository-design alternatives and
innovative ways to ensure compliance with regulatory requirements
than would otherwise be possible. Examples are whether and when
to backfill repository openings and ways to ensure that retriev-
ability requirements can be met.

However, diversity was not the only factor. The facts that there
is no practical difference in the excellent predicted postclosure
performance of the five sites and that the preclosure ranking is
dominated by costs were also important. Diversity considerations

*R.L. Keeney, November 1986, "An Analysis of the Portfolio of
Sites to Characterize for Selecting a Nuclear Repository,"
University of Southern California Decision Analysis S«ries.

-7-

1006

confirmed that the set of three sites offered on balance the most
advantageous combination of characteristics for successful
development of repositories, as recjuired by the siting
guidelines.

Coicment 6! DOE deliberately ignored advice from the Board on
Radioactive Waste Management of the National Academy of Sciences
in doing the multlattribute utility analysis and in making the
site-recommendation decision.

We address here three parts to this comment: (a) DOE ignored the
BRWM/NAS by allowing the siting guidelines to distort the weights
accorded each siting factor; (b) DOE ignored the BRWM/NAS recom-
mendations involving participation of outside experts; and
(c) DOE ignored consideration of the relative vulnerability of
the accessible environment at each site. DOE did not ignore
these or any of the recommendations of the BRWM/NAS. Rather, DOE
considered all recommendations very carefully, and, in fact, made
many changes to the methodology and recommendation reports in
response to these recommendations. It is true, however, that for
various reasons, DOE decided not to follow all of the recommenda-
tions of the BRWM/NAS regarding the MUA, as explained below.

DOE did not allow the siting guidelines to distort the weights
accorded siting factors in the MUA. The relative importance
provisions in the siting guidelines were interpreted qualitative-
ly, and were reflected in the analysis by ensuring that the
quantitative value tradeoffs required by the MUA were consistent
with a conservative philosophy that reflected general values of
society. As discussed above, this did not involve eliminating
costs from the analysis.

With regard to the merits of including outside experts in its
implementation of the methodology, we recognize that the use of
such people might have enhanced the credibility of the process.
DOE decided not to directly Involve outside experts in its
implementation of the methodology for the following reasons:

- roughly approximate differences in opinions and values of
different groups and stakeholders interested in repository
siting.

2. DOE staff and consultants were among the best qualified for
providing the types of information required by the method-
ology. Further, DOE has the responsibility and the authority
for making these judgments pursuant to the Act.

-8-

1007

3. Other atakeholders hav« had saveral opportunities to
Influence the Implementation of the methodology, albeit
indirectly, by their Involvement In the development of the
siting guldelinies and by reviews of the simple ranking
methods presented In the draft EAs. Public-comment periods
and rounds of consultation with Interested parties on these
documents did much to influence the specification of both the
siting objectives and the value tradeoffs among objectives
used in the methodology, which are the fundamental building
blocks of the methodology.

4. Pursuant to requests from the public and the Congress, DOE
did elicit an independent review of the methodology and its
application from the BRWM/NAS. While this group said they
were disappointed DOE did not involve outside experts, they
also said they saw no indication of bias in DOE's implementa-
tion of the methodology.

In view of these factors, DOE did not directly Involve all
possible stakeholders. We believe this action balanced the
requirements of the Act for State and public participation in the
siting process against the requirements of the Act to continue to
make timely progress toward repository development. Moreover,
given the extensive sensitivity analyses, we doubt that the
involvement of outside experts would have provided fresh Insights
into the MUA.

The last part of the comment concerns the idea that DOE should
have considered the relative vulnerability of the accessible
environment at the various sites. The concept of setting regula-
tory limits for releases of radioactivity to a universally
applied accessible environment rather than for the predicted
consequences of those releases is fundamental to the final
Environmental Protection Agency's rule for disposal of nuclear
•waste. This rule was the subject of frequent interactions with
the public and with independent scientific groups. Including the
BRWM/NAS, and took almost nine years to develop. A study*
published in April 1983 by a special panel of the BRWM was
critical of the radiation-release limits approach of the then-
proposed EPA rule; the panel advocated instead an individual-dose
limits approach. Although the EPA eventually added an
individual-dose limit to its now-final rule, the release-limits
approach is still the mainstay of the rule. EPA's rationale for
emphasizing estimates of amounts of radioactivity released rather
than individual exposures is that it avoids highly speculative
predictions of future environmental pathways, behavioral
patterns, and population distributions that determine how

♦National Research Council, 1983. A Study of the Isolation
System for Geologic Disposal of Radioactive Wastes. Report of
the Waste Isolation Systems Panel, Board on Radioactive Waste
Management, Commission on Physical Sciences, Mathematics, and
Resources/ National Academy of Sciences, Washington, D.C.

-9-

1008

rel«as«8 result in doses received by people. Such an approach
will make demonstrations of compliance with the standards more
straightforward. DOE as well as a special Science Advisory Board
to the EPA generally agreed with these technical aspects of the
standards . -. ,

Consistent with past DOE positions and with these regulations,
DOE adopted a postclosure performance measure based on releases,
not health effects. Not surprisingly, the BRWM/NAS disagreed
with the measure, as it is the same as the EPA's. While the
BRWM/NAS understood the DOE's position on this difficult issue,
it advised that by ignoring current differences in accessible
environments the DOE was ignoring a potentially Important site
discriminator. DOE agreed to consider differences in accessible
environments only so far as such consideration was consistent
with the EPA rule, and to do so in the final recommendation
report.

Accordingly, DOE reviewed estimates of releases to the accessible
environments at the various sites and observed that such releases
are not expected to discharge to the Earth's surface or to
surface-water bodies during the next several thousand years (see
pg. 4 of recommendation report). Thus, differences in accessible
environments among the sites are not discriminating.

Comment 7; DOE deliberately Ignored other Information, outside
of the multlattrlbute utility analysis, potentially damaging t"o
the Hanford site.

Early in the process of documenting the methodology, DOE
considered whether to Include "other information," for example,
risk of disqualification, in what became the methodology report.
Before the decision regarding the inclusion of this information
was made, rough drafts of this "other information" section,
written by DOE consultants, were circulated to a few DOE people
for review. On review of these materials, it became clear that
all factors identified as "other Information" had already been or
were being addressed adequately in the EAs, the methodology
report, or the recommendation report. Therefore, to avoid
double-counting, these other factors were not considered again In
a separate chapter.

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1009

15:35

U.S. DEPARTME^a OF ENERGY
CORRESPONDENCE CONTROL FORM
• " OFFICE OF THE EXECUTIVE SECRETARY

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PENDING ACTION CONTROL

1010

Congres(£f of tf)e Winititi ^tatesJ

J^ouit of S^tifititntatibti

iaasf)inBton, 33.C. 20515
^■*1f-.:- .=. October 20, 1986

The Honorable John S. Herrington

Secretary

U.S. Department of Energy

1000 Independence Avenue, S.W.

Washington, D.C. 20555

Dear Secretary Herrington:

On Hay 28, 1986, you recommended three sites in the western
United States to be characterized for possible use as the nation's
first high-level radioactive waste repository. The sites
recommended are located in the States of Nevada, Texas and
Washington, The two sites which were rejected are located in
Mississippi and Utah.

The decision to select a permanent waste repository must be
based on the soundest scientific and technical judgments possible.
Yet we have found conclusive evidence, in many cases supplied by
doe's own internal documents, which lead us to only one possible
conclusion: DOE distorted and disregarded its own scientific
analysis in order to support selection of the Hanford, Washington
site and to avoid selection of the Richton Dome, Mississippi site.

doe documents obtained by the Subcommittee on Energy
Conservation and Power, and the Subcommittee on General Oversight,
Northwest Power, and Forest Management, reveal that DOE
systematically deleted unfavorable information concerning the
desirability of the Hanford, Washington and the Deaf Smith County,
Texas sites. It is clear that the initial DOE draft documents
told it like it is, and subsequent drafts told it like DOE wanted
it to be.

Furthermore, it appears that DOE manipulated data, weighting
factors and analytic techniques to arrive at a predetermined set
of sites. In addition, DOE ignored findings and recommendations
or its own technical staff and the National Academy of Sciences
(NAS) and misconstrued the Nuclear Waste Policy Act.

It is also evident from this investigation that DOE misled
the Subcommittee on Energy Conservation and Power as to the
existence of DOE documents. You informed the Subcommittee on July
8, 1986, that all drafts of the recommendation report were
routinely destroyed; however, numerous drafts of the report were
discovered in DOE files during the course of this investigation.

1011

The Honorable John S. Berrington

Page 2

October 20, 1986

Before reviewing in more detail the contents of the draft DOE
documents, and the initial findings of our investigation, we
believe a brief summary of events leading to this point are in
order.

In December 1984, DOE issued draft environmental assessments
which tentatively selected the Yucca Mountain,, Nevada, the Deaf
Smith County, Texas, and the Hanford, Washington sites for
characterization. However, the selection methodologies which led
to that final order were severely criticized by the NAS's Board on
Radioactive Waste Management and others, and as a result, DOE went
back to the drawing board to find a new and defensible
methodology.

On April 10, 1986, the NAS finished its review of the new
methodology and draft chapters of the Methodology Report which
described DOE's implementation of the methodology. Through April
and May, however, DOE continued to edit chapters from the
Methodology Report. These chapters were materially and
substantially changed during this period following the NAS review.
In early May, DOE finalized the Methodology Report and in late
May, the Recommendation Report was completed.

In response to your recommendation announcement on May 28,
1986, our Subcommittees embarked oh an investigation of the
decision process which led you to recommend the final three sites.
The most immediate focus of the investigation was to determine why
the site placing fifth and last in the metholodology , the Hanford
site, was chosen as one of the three finalists; and why the very
same three finalist sites which you recommended in your seriously
flawed and discredited December, 1984, draft environmental
assessments, were once again chosen by DOE in 1986, despite the
contrary results of the new and more rigorous selection
methodology.

As you know, the methodology report was supposed to present
the unbiased and unadulterated evaluation of the five sites under
the new methodology. We find it totally indefensible that this
report was edited and manipulated to support the final
recommendation decision. A review of internal DOE documents
strongly suggests that DOE had decided on the three sites prior to
completion of the methodology report, and then tailored the
methodology report to justify the final decision. This contention
is further supported by the fact that both the methodology and the
r ecommedation reports were edited at the same time, by the same
individuals at DOE. Thus, the methodology report which DOE
claimed was "decision-aiding" turned out to be quite the opposite.
It was in fact "decision-aided" since DOE was altering this report
to support the final recommendation decision.

Specifically, DOE suppressed information which clearly
established the undesirability of the Hanford, Washington site and

1012

The Honorable John s. Herrington

Page 3

October 20, 1986

the relative desirability of the Richton Dome, Mississippi site
over the Deaf Smith County, Texas site. Fof instance, early
drafts of chapter five of the methodology document concluded that
the Hanfocd site should not be chosen for site characterization:

" [lit can be definitively stated that the results
of the composite analysis strongly suggest
characterization of the Yucca Mountain, Richton
_ Dome, and Deaf Smith sites. . . .There are no

realistic assumptions about either preclosure or
postclosure expected performance or about the value
used to evaluate performance that can result in
Hanford being anything but the last ranked site."
(emphasis added.)

This passage was deleted in the final version.

Furthermore, statements from this chapter which supported the
choice of the Richton Dome, Mississippi site over the Deaf Smith
County, Texas site were also deleted from the final analysis:

"For all assumptions about postclosure conditions
and ta] wide range assumed to be realistic for
weights. .. the relative ranking of the salt sites is
stable; namely Richton Dome is preferred to Deaf
Smith which is preferred to Davis Canyon."

But DOE did not stop at deleting just unfavorable phrases and
passages from this final document. Unbelievably, in one case, an
entire chapter disappeared. Drafts of this deleted chapter were
discovered in DOE's files. Entitled "Other Information," or
"Other Considerations," this chapter evaluated additional factors
outside the scope of the multiattribute utility analysis which
were "relevant to the site recommendation decision." One part of
the chapter identified disqualifying conditions for each of the
sites where "there is a reasonable likelihood that extremely poor
site conditions could result in a small, but significant,
probability of disqualification...." of a site. The DOE reached
the following conclusion concerning this analysis:

"Based on this review of disqualifying conditions,
the Davis Canyon site and the Hanford site appear
to be the least favorable sites. The Deaf Smith
County site and the Richton Dome sites appear to be
the most favorable sites; and the Yucca Mountain
site should fall between these two groupings."

The recommendation report also went through many drafts and
iterations. An examination of such drafts indicate that critical
passages and phrases were also deleted from this document. For
example the following passages were deleted from the final version
of the recommendation report:

/
/

1013 /

The Honorable John S. Herrlngton

Page 4

October 20, 1986

■The Initial order of preference, from the
most-preferred to least preferred, is the Yucca
Mountain site, the Richton Dome site, the Deaf
Smith County site, the Davis Canyon site, and the
Hanford site. Sensitivity analyses show that this
initial order of preferenece is unchanged for a
wide range of weights or scaling factors relating
postclosure and preclosure impacts."

■The results of sensitivity analyses strongly
suggest that sites with lower expected postclosure
utilities also tend to have greater uncertainties
in postclosure performance. This range of
uncertainty indicates little opportunity for the
sites to improve, based on the results of site
characterization studies, beyond the best-estinate
values. However, there is considerable
opportunity, especially for the non-salt sites, to
retrogress, based on the results of site
characterization studies, below the best-estimate
values." (emphasis added.)

In addition to the deletion of unfavorable passages in both
the methodology and recommendation reports, DOE manipulated its
site selection analysis in order to place Hanford among the top
three sites and to choose the Deaf Smith County site over the
Richton Dome site. DOE accomplished this task by taking several
highly questionable steps. These steps are detailed in the
attached staff memorandum.

In the final analysis, DOE based its decision to select the
Hanford site on rock diversity considerations, since only three
rock types were under consideration to begin with, the application
of this final criteria guaranteed that the only basalt site,
Hanford, and the only tuff site. Yucca Mountain, would be chosen.
The only task remaining was to choose among the salt sites.

Since the rock type diversity criteria was so important, it
should have been included in the methodology, so it could have
been considered and weighted along with the other factors. It is
apparent that rock type diversity could very well have been
included in the methodology, but DOE refused to allow the eight
weeks necessary to include it in the formal multiattribute utility
analysis. It is simply incomprehensible that one of the most
important factors, in effect the one overriding factor which made
the final decision for DOE, was deliberately left out of the
analysis.

^ The Subcommittees' analysis of the flawed nature of the DOE
aecision process is further supported by comments from the
scientific community. A decision analyst, Detlof von Winterfeldt.
vho participated in the National Academy of Sciences review of feh4

1014

The Honorable John S. Berrlngton

Page 5

October 20, 1986

doe's application of .the multiattribute util_jLty analysis
criticized the DOE' s use of the results of 5uch analysis to reach
the selection of the final three sites. Professor von Winterfeldt
expressed his objections in a letter to the Director of the DOE's
nuclear waste program on July 22, 1986j

■In brief, I believe that the conclusions drawn in
the Recommendation Report are based on selective
' ■ and misleading use of the analysis described in the
Methodology Report....! find a convincing analysis
that clearly rejects the Hanford site and,
furthermore, supports the selection of the Richton
Dome site over the Deaf Smith site.... The most
important conclusion that I draw from the
Recommendation Report's inclusion of the Hanford
and Deaf Smith sites is that DOE is apparently
willing to accept more health effects and an
additional cost of $3-. 360 Billion in return for
several minor advantages of the two sites. As a
decision analyst, I find these implications
inconsistent with the Methodology Report. As a
concerned member of the public and a taxpayer, I
find them irresponsible."

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Subcommittees i

restore

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ion, we bel
decision is

Given the
fered in th
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ieve it is painfully evident that DOE's

seriously flawed and totally
tremendous loss of credibility the waste
e last several months, given the vote of
rogram received in the continuing
ess this past week, given the findings
request that you address the issues and
ter and present a detailed plan to our
thirty days which establishes actions to

the waste program. In particular, such
hedule for reevaluating the five sites
d complete application of the
lysis.

Sincerely,

rd J. Hatkey 7)

Edward J. Haikey
Member of Congress^

'UULhO^

Weaver
r of Congress

2.d^

Member

Ron Wyden

Member of Congress

1015

QUESTIONS FROM SENATOR EVANS

QUESTION 18:

The Subcommittees also transmitted a list of
several written cjuestions along with the report on
October 29, 1986. Is it your intention to provide
answers to these?

ANSWER:

DOE provided answers to the written questions on
December 15, 1986. A copy of those answers is
attached.

Congresisl ol^^Winitth States

J^QUit of l^epresentatibeis

{Sasbington, B.C. 20515
October 29, 1986

The Honorable John S. Harrington

Secretary

U.S. Department of Energy

1000 Independence Avenue, S.W.

Washington, D.C. 20585

Dear Mr. Secretary:

In the course of our investigation of the high-level
radioactive waste program, several internal Department of Energy
documents came to our attention which raise questions as to the
Department's plans for the first repository program.

The first document contains briefing materials prepared on
May 13, 1986, which explore various options for modifying the
high-level waste program. Among the options listed is the
following:

"Strategy Option - Redesign First Repository:

Pros

- Concentrate on first repository as primary waste
disposal facility

- Enhance systems optimization

- Accomodate reactor on-site storage problems

- Maintain legislated goals and planned receipt rates

Cons

- Increase potential for higher near-term costs

- Increase pressure for rise in NWF [Nuclear Waste Fund]
Fee

- Continue to face institutional problems."

The clear and unmistakeable implication of this option is
that the Department of Energy was considering the possibility of
enlarging the first repository in order to accommodate all of the
nation's waste.

In addition, a second document entitled "Considerations
Bearing on the Timing for a Second Repository," dated May 16,
1986, explores in detail the potential for expanding the three
sites chosen for the first repository. A table in this document
projects the total potential capacity of the three sites:
Hanford, Washington — 668,000 metric tons of uranium (MTU); Yucca
Mountain, Nevada — 78,000-136,000 MTU; and Deaf Smith County,
Texas — 107,000 MTU. At one point, this study states that "[I]f
adequate capacity is indeed available, considerations of system
costs would argue for opening only a single repository site."

1017

CongreSfif of tfje Winitth States

^ous(e of ISitpvtStntatibti

iSast)ington. JS.C 20315
October 29," 1986

The Honorable John S. Herrington

Secretary

U.S. Department of Energy

1000 Independence Avenue, S.W.

Washington, D.C. 20585

Dear Mr. Secretary:

In the course of our investigation of the high-level
radioactive waste program, several internal Department of Energy _.
documents came to our attention which raise questions as to the
Department's plans for the first repository program.

The first document contains briefing materials prepared on
May 13, 1986, which explore various options for modifying the
high-level waste program. Among the options listed is the
following:

"Strategy Option - Redesign First Repository:

Pros

- Concentrate on first repository as primary waste
disposal facility

- Enhance systems optimization

- Accomodate reactor on-site storage problems

- Maintain legislated goals and planned receipt rates

Cons

- Increase potential for higher near-term costs

- Increase pressure for rise in NWF [Nuclear Waste Fund]
Fee

- Continue to face institutional problems."

In addition, a second document entitled "Considerations
Bearing on the Timing for a Second Repository," dated May 16,
1986, explores in detail the potential for expanding the three
sites chosen for the first repository. A table in this document
projects the total potential capacity of the three sites:
Hanford, Washington — 663,000 metric tons of uranium (MTU); Yucca
Mountain, Nevada ~ 78,000-136,000 MTU; and Deaf Smith County,
Texas — 107,000 MTU. At one point, this study states that "[I]f
adequate capacity is indeed available, considerations of system
costs would argue for opening only a single repository site."

1018

The Honorable John S. Hertington
Page Two
October 29, 1986

The study goes on to compare the costs of a single repository
system versus a two repository system.

We request that you provide answers to the following
questions by November 10, 1986:

1) Is the Department of Energy considering the possibility
of placing all the nation's waste in one repository?

2) Was the potential for expansion of the Hanford site a
factor in the Department's decision to select that site?

3) Section 302(d) of the Nuclear Waste Policy Act of 1982
provides that the Secretary may make expenditures from
the Waste Fund "only for purposes of radioactive waste
disposal activities under titles I and 11" of the Act.
The studies and options papers, on the other hand, appear
to consider options not permitted under the Act. Please
cite the specific authorization in title I or II of the
Act that permits you to make expenditures from the Waste
Fund for these studies.

The waste program has been caught in a web of contradictory
statements and political manipulations which have thoroughly
entangled the Department's credibility. For instance, on one
hand. Secretary Hodel has pronounced the second repository program
dead. At the same time. Waste Office Director Ben Rusche says the
program continues. It is time to make clear your intentions and
policies on these matters, and to tell the same story to audiences
in both the East and the West.

ward J. Markey(J

Edw
Member

of Congress

Sincerely

Al Swif
Member o

i^A^

Jes Weaver
Der of Congress

/^^l

Ron Wyden

Member of Con'gress

1019

The Secretary of Energy

Washington, DC 20585

December 15, igae
Dear Mr. Weaver:

Vours truly

John s. Herrington ^
Enclosure

Honorable James Weaver
House Of Representative
Washington, D.c. 2051 J

1020

Question 1: !• th« Department of Energy considering the

possibility of placing all the nation's waste in one
repository?

Answer: No. Under the Nuclear Waste Policy Act of 1982, the
only foreseeable case where all waste would go
in one repository is if the total quantity were less
than 70,000 metric tons of heavy metal, which we do
not expect to be the case.

1021

Question 2: Was the potential for expansion of the Hanford site
a factor in the Department's decision to select that
site?

Answer: No. The expansion of the Hanford site was not a

factor in the Department's decision to select that
site.

77-10A 0-87-33

1022

Qu«Btlon 3: Sactlon 302(d) of th« Huclear Wa«t« Policy Act of
1982 provldan that th* Sacretary say aak*
•xp«nditur«s from th« Wa«t« Fund "only for purposes
of radioactlv* vast* disposal activities uiidsr
titlss I and II" of ths Act. The studies and
options papers, on th* other hand, appear to
consider options not permitted under the Act.
Please cite the specific authorization in title I or
II of the Act that permits you to make expenditures
from the Waste Fund for these studies.

Answer:

Studies and planning activities concerning
alternatives (including the viability of those
alternatives) for the conduct of the program
pursuant to the NWPA constitute administrative
activities that are authorized to be funded under
Section 302(d)(3) of the NWPA.

1023

QUESTIONS FROM SENATOR EVANS

QUESTION 19: Does the Department intend to complete a more

objective and thorough MUA based on all factors as
requested by the Siibcommittees? If not, why?

ANSWER:

The DOE does not "intend to complete a more objec-
tive and thorough MUA" because the MUA as docu-
mented in DOE/RW-0074 is objective and thorough.
That is not to say that the MUA is perfect, or that
it could not have been improved. We believe only
that the MUA was adequate for the task at hand and
that it was good enough to aid in responsible
decision-making. This opinion of the MUA was sup-
ported by the BRWM/NAS in its final review letter
to B. Rusche, dated April 10, 198 6.

With regard to the judgment not to perform the
additional portfolio analysis needed to consider
the effects of rock-type diversity, we acknowledge
that such an analysis might possibly have provided
additional insights about the relative desirability
of portfolios of three sites. As in any formal
siting study, decisions had to be made about what
and what not to include in the formal analysis. It
was our judgment that the extra time, cost, and
effort necessary to perform a formal portfolio
analysis was not required to make a responsible
decision. A rigorous, formal evaluation of the
effects of diversity would require a more complex

1024

- 2 -
form of analysis involving highly speculative judg-
ments about such things as future licensing
actions. Instead, we considered the portfolio
effects qualitatively, as is commonly done in other
portfolio-type problems. We believe such an
approach is entirely consistent with the Act and
the siting guidelines.

In summary, we believe any additional analysis
beyond what was done to support the May 28 deci-
sions would not be cost-effective. We have seen
nothing to indicate that application of a formal
portfolio analysis would reveal important new in-
sights that would warrant reconsideration of our
decision.

1025

QUESTIONS FROM SENATOR ADAMS

QUESTION 1: Last week at your briefing on the Department's

proposed amendment to the Mission Plan you stated
that it would take an affirmative act of Congress
.> to override or alter the program you will propose
in the amendment. For the record, is it the
Department's position that it is necessary for
Congress to affirmatively act to reject, alter,
or override the Mission Plan amendment once the
Department sends it to Congress?

ANSWER:

1026

QUESTIONS FROM SENATOR ADAMS

Question 2: On July 30, 1986, the Department supplied to the
House Energy and Commerce Committee a package of
materials concerning the procedures followed by the
Department in making its site selection decisions
announced on May 28, 1986.

The materials include a series of option papers
concerning the decision to terminate or suspend the
second repository program which explicitly cite the
political benefits or detriments of various options
including the option eventually chosen by the
Department. Several of these memoranda are
dated April 30 and May 13 and May 21, 1986.

For the record, under whose direction were the
memoranda relating to the crystalline repository
decision prepared?

The cover letter to the House Committee states that
these memoranda were discussed in "meetings and
discussions" involving Mr. Purcell, members of his
staff, representatives of the Crystalline Project
Office and yourself. Did you participate in such
meetings? If so, on what dates?

Did you participate in any discussions with the
Secretary, DOE'S Office of General Counsel, or any
other individual within the Department concerning
those memoranda, their content, or the conclusions
reached in the meetings and discussions involving
those memoranda?

Did you participate in any other discussions with
the Secretary or any other individual concerning
the political repercussions, electoral or in terms
of political opposition to potential repository
sites, during the process of making the May 28,
1986 decisions?

Answer:

The memoranda that were referred to in the question
were developed by the Department's Chicago
Operations Office at their initiative in
preparation for discussions with me regarding the
Crystalline Repository Project.

1027

- 2 -
The Director (OCRWM) participated in discussions
with members of my staff and with members of the
Crystalline Project Office. These meetings took
place on May 1, 1986, May 13, 1986, and May 21-22,
1986.

Discussions were not held with the Secretary, DOE ' s
Office of General Counsel, or any other individual
within the Department concerning the memoranda or
their content. Discussions concerning the second
repository program were held with Under Secretary
Salgado on May 6, 1986 and May 8, 1986, and with
Under Secretary Salgado and Secretary Herrington on
May 22, 1986 and May 26, 1986. These discussions
were person to person and did not involve any
documents, memoranda, notes, papers, drafts,
correspondence, etc.

Mr. Rusche did not participate in any
discussions with the Secretary or any other
individual concerning the political repercussions,
electoral or in tenns of political opposition to
potential repository sites, during the process
of making the May 28, 1986 decisions.

1028

C'
^

The Secretary of Energy

Wasnington. DC 20565

January 29, 1987

Honorable Richard H. Bryan
Governor of Nevada
Carson City, Nevada 89710

Dear Governor Bryan:

Thank you for your letter of December 16, 1986,
responding to the Department of Energy's efforts to
initiate negotiations to establish a binding, written
Consultation and Cooperation (C4C) Agreement pursuant to
Section 117(c) of the Nuclear Waste Policy Act of 1982
(the Act) .

I fully agree with the view expressed in your letter
that the concept of the development of a binding, written
agreement between an affected State, such as Nevada, and

the Department, as envisioned by Congress, has consider-
able merit. However, I am concerned that the State would
link progress toward such an agreement with the resolu-
tion of the outstanding disagreements and litigation
between the State and the Department.

The agreement, as specified by Section 117(c) of the
Act, is intended to sec forth negotiated procedures by
which the Department will fulfill the consultation and
cooperation requirements of the Act. By clarifying in a
negotiated, written, binding agreement, t.he procedures
for how the consultation and cooperation requirements are
to be carried out, many of the problems such as those
experienced in the past between the State and the
Deoartment should not occur.

I am net suggesting that a C^C agreeme
or was intended to solve, all of our probl
remaining will have to be addressed by wha
mechanisms are appropriate. However, I do
that the existence of current disagreement
State and the Department should bar us fro
negotiations on a C'ciC agreement to achieve
specified in Section 117 of the Act. Don
Nevada Operations Office will be ccntacti.-.
:o arrange for further discu

of vou:

staff

,nt will

solve,

ems . Th

ose

tever

. not bel

ieve

s between the

m enteri

ng int

1 the pur

poses

Schueler

■ of th

;g Robert

. Loux

;ssions.

^■**^"*. pt^T!^p**-'T*rr

1029

-2-

With respect to the State's 1987 grant, the
Department is in the process of resolving outstanding
issues and expects to be able to make an award in the
very near future.

Yours truly,.

John

Herrington

1030

(ICMAIO H IXTA.N

c •.

THE STATI or NEVADA

EXECUTIVE CHAMBER

Cinon Cay, Nrvtda 89710

ATTACHMgNT 1

. r

Tf.t.'MO>t

Cecenber 15,

■.cr.cra = le Jcr

nemnc;cr.

The Secretary cf Ir.ercy
C.S. Cepartr.ent of Irer:
Wasr.ir.cron , D.C. 2C5 3 5

Secreta rv :

I have reviewed Mr. P.usc'r.e's November 19, 19S5 letter
seeking to e.-.tsr into a binding written agree.ment with the State

cf Nevada pursuant to Section 117 (c
Act, 42 U.S.C. 10127 (c). His letter pr
negotiations with a "tear," cf Deoartr.ent ot
headed by .Mr. Den Schueler, Deputy Manager o
ations Office.

o: the Nuclear Waste

OSes c

encs~.ent o:
■.ergy personnel
the Nevada Ccer-

I believe that the concept of the development of a
written agreerrent between an affected State, such as Nevada, and
the Department of Energy, as originally envisioned by Congress,
has considerable merit and Congress should be commended for their
foresight in this regard. However, I do not believe that Con-

cress or anv of the

■fected states envisione.c: that the Deoart-

ment of Energy would have acted irresponsibly and illegally in
implementing the Act as has now becom.e so apparent.

As ycu y.now, I, along with the Attorney General and the
entire congressional delegation have filed actions challenging
the legality of nearly every major decision that the Departm.ent
has made in this program. These challenges are supported by a
broad spectrum of the citizens of Nevada. These actions

challenge the validity, as wel

1 1

as the

. ^ -

his

rogram.

1031

Honorable John S. Herrington
Cecenfcer 16, 19S6
Page Two

and to the extent that they are successful, najor program de-
cisions recardi.-.g site selection that ycu have race ray be
declared null and void and the entire siting prccess restarted.
This may include the development of new sitinc Guidelines,
rescreeninq for potentially acceptable sites, the development of
new environmental assessments, ard restarting the second repos-
itory program.

Given the way
the Act, it is
confidence or trust
Inercv recarding the

. n wn

Lch the

department has im.plerented
w impossible tor the State of >'evada to have
n any negotiations with the Department of
.mplemen tation of the balance of the orocram

ur.ti:

L the uncs
resolved

lainties surroundi.-.g the aforem.entione

con

V the courts. Congress o

*. w

:ns

V t.-.e

'.e extent that our concerns regardinc the lecalitv

o :

vironm.e.n:

siting guice.ines.

he site selec

il assessments and the

".g o!

:ion

the

:ocsss, the en-

Lnation of suitabilitv recuired bv Section 114(f)

J ,o--c

the second

discus sic:

criate, and I'd s.r7-

program are negotiable,

limmary ceter-
of the Act and
:hen oerhaos

recardmc a oossi

•- 1

e wr i:

:iate your c:

ten agrsem.ent
.deration of t

.m.ay he appro-
;osa m.atters.

Additionally, the r.anner in which the Departm.ent of
Snergy has treated the State of Nevada in attempting to consult
and cooperate, as recuired by the Act, has com.pcunded this
situatio.n. The Ceoartm.ent has conducted its grants application
process i.n an arbitrary fashion. As you know, Nevada has been
forced to seek review by the courts of the way in which the

Ceoartm.ent has

used the crants orocess to li.mit the S;

participation in the program, and it appears that, even though
the court ruled in our favor, we new may be forced back to court

over our current cran:

This lack of cooceration also dim:

■.ishes cur confidenc

that the Departm.ent would honor the terms of a written agreem.ent
any more than it has lived up to the statutory requirements of

he Act.

;hould the Cepartm.ent be sincerely

interested m

consulting and cooperating with the State of Nevada, it can
dem.onstrate that com.mitm.ent by fulfilling our grant request
without t.he continuing difficulties which has been present in
nearly every one of our past, as well as our current, grant
recuests .

1032

The Honorable John S. Her-
Cecewter :6, 19S6
Page Three

■qton

I'd appreciate vc-jl: ccr.sidera'- on c' >v '
and I would be hacpy tc provide a-v '--Ce- f-"- ■*'* ccr.cerr.a
require. Scbert Loux, Director o f' £ tV-e" Vuc" V^-'"-* ""'^" ^=^ ~^--'

°:^:=^ 3^c- r^ --i-ie t= d.scuss cur ccnc::-!^:-^^!--;--^

o. y.T. Sc.-.ueler at any r.ut-ially ccnvenient ti-e ?-sc.-e

iir.cerely „'

SHH/ckl

c=: .yr. Hen P.usche

."r. Don Sch':;sler

Mr. Grant Sawver

Governor

1033

I' -111

UnOtr W»«fctf>onTY o* PubLc /Tw

US OEPA«TM£NT OF 6NE='GV

NOTICE OF FINANCIAL ASSISTANCE AWARD
(See insuxictoni on f^versei

I'-

0g-3-_ . Up

. .„. -<•

«^,ictiol.?iUii.on. r.(Nl.i.om.naiMhc.«iooi.c«ltto(c.f.'^.wn«oro»r«|nf.r/./;

Nuclear -aste roxicy AcL of 1902, P.L. 9 i -"SS

T~. T TITLE

Nuclear Waste Disposal Eval'jation

3. RECIPIENT r^jrn*. taartsx ZIP coat, m* coat ma tHtonont no I

Sta-e cf lievaca

Ne-.-aia Agency for Nuclear Projects

Cacitcl Cc=olex ,

a. BeciPIENT PROJECT DIRECTOR l\*/n* ana ititonont No.l

Hccert H. Lo'ux (702) 835-371'^'

9. RECIPIENT SUSINESS OPPICER INtmt ma mtcnent ,Vo /
P.ccert ?.. !.c--;< {~Z2) 8S;-37-a

n. DOE PROJECT OFPICS^ iNime. aaareu. no coat, [titonont /VoJ
D. I.. Vietr. (7-2/ 235-3cc2 •

U.S. Depart=e.-.t of ir.er£-/
P.O. Hex liilOC, Las Vegas, SV 8911--^100

2. INSTRUMENT TYPE

E GRANT n COOPERATIVE AGREEMENT

4 INSTRUMENT NO.

i;s-Fc;o8-a;:;vi:i.6i

5. AMENDMENT NO.

6. BUDGET PERIOD

FROM C '. tO^ TXHU- 3 '23 '3^

7 PROJECT PERIOD
CftOM 5 ' . 'ac TWPU

10. T>PE OF AWARD

n NEW

C REVISION

C CONTINUATION
(? SUPPLEMENT

C RENEWAL

12 ADMINISTERED FOR DOE 3V INamt. saofesi. up coat, teieonont f^o.l

D. I.. Vietr. (702) 295-3co2
U.S. Cetartzer.t of Ir.srgy
Post Office 2ox lUlOO
Las Vegas, T! 6911---103

13. RECIPIENT TYPE _ „ r-

S STATE GOVT D INDIAN TJUSAL GOVT C HOSPITAL

G LOCAL GOVT G INSTITTJTION OF

• HIGHER EDUCSTIOtl'

G OTHER NONPROFIT
ORGANIZATION

C FOR PHOFTT
ORGANIZATION

Cc Gp Gsp

C INDIVIDUAL

Q OTHER ISpeciffl

14. ACCOUNTING AND APPROPRIATIONS DATA

J ADDfOOfiailOn SvT'DOl

5?:':522"'

0 3 & R Nuripgr

I c. rr.AFP'OC

I a CFA Numoef

03-01-02-:5

15. EMPLOYER ID. NUMBES/SSN
0S5-C0C0C22

IS. BUDGET AND FUNDING INFORMATION

■NT BUDGET PERIOD INFORMATION

b. CU.MUL>TIVE DOE OSLIGATIONS

(11 DOE FuAO* ODIi9»t«3 Thii AcTion S

*I DOE Funos Auinoniefl 'or Carry Over S LJ

jl DOE FuotB Previcxjily Obl'9atrt m tftii Budget Period $ ' ' ' ' ^

'41 OOE S^l4fe o( Tool ABoroved Budget S - - - -'~ -

■51 ReeiO'eoT Shire o' Total Aooroved Budget S 2_

61 Total Aooroved SuOQet S - -^'^

111 Thr» Budget Per.od

[Tom ol l:na a. Ill ana a. {3I\

(31 Prior Buoqet PenoOa

(31 Protect Period to Date

ITorai ol hnet 0. IV ana 0. I!)l

i —

Qo.a — c

5 ,317 ,-,''2

i: ,:::,oco

■7. TOTAL ESTIMATED COST OF PROJECT S

(Thi IS ine current esnmateo cost of me pro/ect. It is not t promise to jwarrf r>or *n autnonzation to erpena fun

a. AWARD-AGREEMENT TERMS AND CONDITIONS

This aw»ra/*gfe«inent consists ol this (orm plus ths following:

a. Soeciai terms and condmoni III grant) Of lC^•auH. general o'oviuons. soecial oro«is.ons li( coooetauve agre«n..

. .1 -.~M-

0. AcsiicjDie Drogram regutttiona/weeiiV' lLC . •

e. OCE Assistance Regulations. 10 CFR Part 600. as amended. Suboaru A and C5 B I Grants! or Z C lCoooe.ai.ve Agreement,

d. AooiicationJ orooosai Gated .

1— 12 .

C M submmed S ~itt\ clanges as negotiated

, REMARKS

rr.is ic:er.i=er.t exter.ds the expiration date for -.r.s curre.-.t budget period frcz
to rebruar-/ 23, 1937-

yn.

. =vinc.jrc OF RECIPIENT ACCEPTANCE

-i-7

' u,,., '/a.

/ -".. li 5 ;£v

S'?'. a or A^itnontea Recipient Olficaii

iDittt

(Signtrurrf

-v^-p., :(. Clark

ICaial

INamel ^

Ififamel

Contracting Officer

/T7r/ey

ITiiltl

1034

United States Government

memorandum

V j.Tt FEB 0 5 1937

«I»1.T TO

ATTN Of RW-2 23

•LijECT Concurrence on Nevada Grant Award
TO Don Vieth, NNWSI

Attached is Keadq-jarter ' s concurrence on the initial 1937
grant award to the State of Nevada.

FTS^896-nis!"^ questions, please contact Allen Benson at

_Department of Energy
J

CjU_^^-

Stephen H. Kale
Associate Director for

Geologic Repositories
Office of Civilian Radioactive

Waste Management

Attachment

1035

states Government Depanment ot Energy

emorandum

£. February 4, 1987
mn.r TO

ATTMOf RW-223

SUBJECT. Notice of Concurrence Action

TO Don Vieth

pry T rw • ,

Draft award documents for proposed grant, number DZ-7-^'j?-iS'.?:l^i''. , A0C9

in the amount of $ _6 - 7f' . ■ 'i " ■", from the State/Tribe Nevada

^ , have been received by the Office

of Geologic Reposi tor les .

ACTIOS;

COMMENTS :

v>:X CONCUR

NONCONCUR

REVIEW-SCHEDULE BELOW

Stephen H. Kale
Associate Director for

Geologic Repositories
Office of Civilian Radioactive

Waste Management

1036

flB 1 2 1987

R:yD<rrt R. LciiX, Jr.. Lxecj'.ive Director

Suclcar Waste Proj".:t Office

Stice of Nevada

H.-ercrc-". Cer.:?:

SvJite ^i:

130J '.'crth Carsjn Strcec

Carson City, N'^' 39*01

■ji'..-

NO.

•h'GCS-

.\'iUYSI--i Or a 19.^'

'JL\s-[ .\?.^LICATION
/

"Tnis letter hii been prcpar:J t'ursiar.t to our electing oi r#r<»nber 16, 15o5. in
w.-.ich wc Jiscusiej tr.e stitus of our review of t.le State's grant application.
Wc have ccnpleteJ our analysis a: t^e grant application to dttemine its
consistency Witn Ll\e Nuclodr l.aste Policy .Act, applicable regulations, and our
^'.iiJur.ce. At t.'^.is tine we will recor-end that the Nevada Operations Office
{Wj Contracting Officer a!jt>.ori:e fu:\ding of $6,5.-0,'il3. We require
additional infornation before we can reach an informed decision on activities
totalling $3,199,~9o. A discussion of the activities approved by Wiste
.'-U.-.agenent Project Office ChMPO), and those requiring additional
3 jbstantiation, are enir.rrated in Enclosure 2. Since $175,000 of this ar.oant
is for an engineering contractor, and during the Dece.?.ber lo, 1986, meeting it
was agre-^d tnat tne engineering effort was not required at this tine, funding
m the ar.O'ont of $173,295 will not be recocnended. T.ie balance of $299
represents interest expense wtiicii is 'unailowaole in accordance with t!ie Office
cf :Ur.jge:-.ent and 5i!dget Circular A-i'. Our approach to evaluating the
independent teci-nical studies is presented in Lnclosure 1.

A5 stated in our neeting cf Decenber 16, 1986, we are currently prepared to
•.j'^r- action to aut.hjriz'* fundmj for those activities agreed to for tne budg'.'t
period M.arc.h 1 tnrougli I^ecer.ber 31, 19ii7. Upon satisfactory resolution yf o.iv
concerns regarding those activities requiring furtner substantiation, the WIPO
will recomend that the S'V' Contracting Officer provide additional funding.

We look forward to neeting with you m the n

lure 3.nd to a pror.pt

resolution of the remaining activities for fandmg. Please contact
ndv-iie N. Ko:ai of ."y staff to j:ra:ige a r.iecting to discuss your graiic in
f_r'ther details.

n^'J>0:WN'K-952

MitiheW p. KurH':n
Cfigirjl Signed 3y

y^ Dor.ili L. Vieth, Director
'T, Waste Management Project Office

rjiclosures:
.As ■istaied

cc W''en-ls:

C. M. Sr,;Lli. HQ (R'>,-4;) FjRj
A. B. Ber.sjn. li'.; (RW-ZS:) F'/.^S

bcc:

J. R. c.^rrer, UK^^), r,'

0. B. Hc-se. CP:. NV

1037

Robert R. LoLit, Jr.

-i-

1038

United States Government Depanment of Energy

memorandum

DATE, FEB 1 2 1987

REPLY TO . ._,

ATTN OF RW-223

SUBJECT. Headquarters Review Criteria for Facility-Specific Outreach and
Participation Plans

TO J. Neff, SRPO
D. Vieth, NKWSI
J. Anttonen, BWIP

I appreciate the efforts of you and your staff to assist in the
development of the Headquarters Review Criteria for Facility-
Specific Outreach and Participation Plans (FSOPPs) through
written comments and through the September and December ISCG
discussions. The site-specific meetings between Headquarters and
Project Office staff next month will be another opportunity to
discuss the Review Criteria, the FSOPPs, and the interactions
that will occur between DOE staff and affected parties as the
FSOPPs are developed. To assist in that discussion, I would like
to respond to some of the issues that have been raised.

FSOPP Scope

Some Project Office comments have indicated that clarificati;.- is
needed on the scope of the FSOPPs. The Mission Plan and the OCR
Guidelines for Intergovernmental and Public Participation
Activities specify that the FSOPPs address the infonnation and
interaction needs of State, Indian Tribe, and local parties. The
FSOPPs are intended to be comprehensive plans for the needs of
all affected parties, not just local parties or the public, as
Project Office comments suggest. The FSOPPs will document DOE ' s
efforts to interact with all affected parties on major milestones
in the repository program and on an ongoing basis.

FSOPP Development

Project Office comments have also indicated that clarification is
needed on the FSOPP development process. The NNWSI comments
(Nov. 26 memorandum from D. Vieth to B. Gale, attached) contain
the following development process:

"It is our understanding that in developing the document you
would like us to do the following:

1. 'Negotiate' major milestone-based activities with
affected parties. . , .

2 . Reach some type of agreement about what these activities
should encompass.

3. Package this 'draft' agreement as an FSOPP.

4. Forward it to HQ for use in discussion with technical
managers. "

1039

-2-

The SRPO commonta (Oct. 2 memorandum from J. Neff to B. Gale,
attached) also refer to FSOPPs as an agreement:

"As you )cnow, SRPO intends to develop the FSOPP through
interactions with the affected publics. We encourage HQ
participation in these interactions at every level. Once the
FSOPP is drafted, however, it will greatly reduce DOE
credibility and trust to have provisions agreed to reversed
by another DOE office."

FSOPPs are DOE plans, not agreements between DOE and affected
parties. Both the Mission Plan and the OCR Participation Guide-
lines specify that FSOPPs are DOE plans for addressing the
information and interaction needs of affected parties, as
identified through informal discussions. The OGR Participation
Guidelines specify in Section 6.2 that the draft FSOPPs, which
are to be developed by the Project Offices after informal discus-
sions with affected parties, are to be sent to Headquarters
before being provided to affected parties. This process will
help to avoid making commitments that cannot be kept, a concern
that has been raised by the Project Offices and that is shared by
Headquarters.

Milestone-Related Planning

In their comments, NNWSI stated that "If you would share with us
your ideas about what milestones you believe could serve as the
basis for public participation, we will be pleased to develop a
plan based on appropriate milestones." The Draft Headquarters
Review Criteria, which was distributed at the December 198 6 ISCG
meeting, contain the milestones that Headquarters has identified
as basic for institutional activities.

As indicated in the scope section of the Review Criteria, the
milestone checklists are not necessarily restrictive. If there
are other milestones that affected parties want to add, Project
Offices should determine whether to include those milestones and
what institutional activities are appropriate. The FSOPP is a
DOE plan, and, as with other DOE documents, DOE is responsible
for the final content of the plan. The Review Criteria provide
policy guidance on minimum milestones for inclusion in the plans.

Definition of Public Participation

KNWSI raises the issue of what role the public has in the
program. We agree with NNWSI 's position:

"Based on our esqjerience, we suspect that the public may best
participate through its elected officials, through formal
processes such as comments on major program documents and
advisory committees, and through relatively limited feedback
mechanisms during information meetings or briefings.

1040

However, we must still address how the State and local
government representatives will participate in the program.
We assume this document must also address this group of
people."

The State, Indian Tribe, and local government officials who will
be involved in the FSOPP development process represent the
interests of the public.

Resources for FSOPP Development

Concerns have been expressed about the resources that will be
required for development of the FSOPPs. We consider the FSOPPs
to be a major repository program institutional activity that is
essential to successfully implement our technical program
activities. During the budget process, we specifically ensured
adequate resources were identified in the FY '87 budget for the
FSOPP development process.

I hope that I have clarified some of the important issues that
have been raised concerning the FSOPP process. I would like to
emphasize how much we appreciate the efforts of you and your
staff in commenting on the HQ Review Criteria and look forward to
working with you as your plans are developed. Please contact
Barry Gale or Carol Peabody of my staff if you have further
questions.

st^ephen H» Kale
/Associate Director for

Geologic Repositories
"Office of Civilian Radioactive

Waste Management

Attachments

cc: L.

McClain, SRPO

Powell, RL

Lundgaard, NNWSI

Isaacs, RW-22

Bresee, RW-22

Gale, RW-223

Peabody, RW-2 2 3

Gale, RW-4 0

Saltzaan, RW-42

Easterling, RW-42

King, RW-4 3

Pitchford, CH

Talbot, RL

West, NKWSI

1041

Department of Energy

Nevada Operations Offics

P. 0. Box 14100
Las Vegas, NV 89114-4100

NOV 2 6 1986

Barry G. Gale, Office of Geologic Repositories, DOE/HQ (RW-223) FORS
ATTN: Carol Peabody, DOE/HQ (RW-223) FORS

CCNWENTS ON "LNSTITUTIONAL ACTIVITY CHEailST FOR DEVELOIMENT OF HEADQUARTERS
(HQ) FACILITY SPECIFIC OUTREACH AND PUBLIC PARTICIPATION PLAN (FSOPP) REVIB^'
CRITERIA

At the September 1986 ISCG meeting, you requested comments from Project
Offices on the "Institutional Activity Checklist for Development of HQ FSOPP
Review Criteria" contained in the reference package. We wish to express our
regrets in the delay in providing our comments along with our concerns about
the approach that appears to be contained in this outline.

We want to start by emphasizing that we agree that institutional
considerations are essential to the success of the repository program. We
applaud and support constructive' efforts to sensitize Office of Civilian
Radioactive Waste Management's (OCRWM) and Project Office's staffs to these
vital considerations. However, we need to maintain a clarity of vision with
resf)ect to the objectives of the FSOPP, and reinforce the idea that it should
be sharply focused on the known audience. We are concerned that the scope of
the FSOPP has been expanded to serve as a management tool rather than a
realistic, attainable description of DOE-State/Public interactions. The
thought of broadening its scope to cover a multiplicity of purposes is not
likely to be constructive, practical, or to accomplish the alternative goals.

Our approach to the FSOPP began with a review of' the OCRWM Mission Plan
requirements. We then analyzed the general Mission Plan language in the
context of our four years' experience in dealing with the State of Nevada,
local governments and the public. Then we made our best estimate of future
DOE and affected party requirements in both intergovernmental and public
arenas. The conclusion was that the NNWSI Project Outreach and Public
Participation Plan should:

0 Develop a clear definition of the concept of "public participation,"
and explain "in what" the states and the public will be invited to
participate;

0 Sp>ell out the manner in which the NNWSI Project would do business with
the State, local governments, and the public, based on discussions with
these parties;

o Encompass on-going, continuous activities that apply not only to major
milestones but to routine interactions;

o Avoid being overly bureaucratic and dictatorial in tone; and

1042

^ ^^ , NOV 2 6 1985

Barry G. Gale -2-

o Be extretnely careful to avoid raising affected parties' expectations by
making commitments that cannot be kept.

It is our understanding that in developing the document you would like us to
do the following:

1. "Negotiate" major milestone-based activities with affected parties.

2. Reach some type of agreement about what these activities should encompass.

3. Package this "draft" agreement as an FSOPP.

4. Forward it to HQ for use in discussion with technical managers.

If our understanding is correct, we have several concerns about this approach.

We believe that the fundamental approach may be unworkable until two major
areas are clarified. First, a reasonable understanding of the nature and
concept of "public participation" is required. Until it is clear exactly vrtiat
this means, it will be difficult to explain how the Project Office plans to
conduct "participation." The repository program must come to grips with this
basic question and provide guidance on how this activity should be defined.
Based on our experience, we suspect that the public may best participate
through its elected officials, through formal processes such as comments on
major program documents and advisory committees, and through relatively
limited feedback mechanisms during information meetings or briefings.
However, we must still address how the State and local government
representatives will participate in the program. We assume this document must
also address this group of people.

Our second concern is the utilization of milestones as a basis for writing the
document. We are puzzled about how we will involve the public or the local
government officials in many of our major programmatic milestones. While it
will be possible to explain how the State and public will participate by
making formal comments on the Site Characterization Plan or in the scoping
hearings for the EIS, it is difficult to understand how they should be
involved in the review of the Exploratory Shaft Title II design, the readiness
review prior to construction, the start of construction, or the completion of
in situ testing, etc. While we recognize the importance of milestones as an
indication of progress, their use as the focus of the public participation
effort requires additional consideration. If you would share with us your
ideas about what milestones you believe could serve as the basis for public
participation, we will be pleased to develop a plan based on appropriate
milestones. To assist this review, we have enclosed a list of nearly 300
N>fWSI Project Level 1 and Level 2 milestones.

We have .reviewed your draft list of FSOPP review criteria. Unfortunately,
although the draft denotes factors to be included in the FSOPP, the basis for
judging the adequacy of included factors is not indicated. It would be
difficult to assess whether enough attention to detail has been given to meet
OCR's expectations. It would be helpful if you could be more specific, if you
could tell us not only "what" but "how much," so the Project Office could
produce a sufficient document.

1043

Barry G. Gale -5- NOV 2 6 1985

The draft review criteria indicates a substantial desire for detailed
information in the draft FSOPPs. However, we must question whether the
information requested will be relevant to each milestone or of value to the
public. For example, consider the readiness review for the exploratory shaft,
a milestone that we consider significant. After considering the proposed
checklist, we have the following questions:

0 What data would be appropriate to share with the affected parties (the

public)?
0 To whom should we provide copies of the draft readiness review

checklist and criteria?
o Is it really appropriate to notify State, Indian Tribes and local

officials of this program activity?
.0 Do we really expect to issue a press release and hold a press

conference on this?
0 Do we really expect to conduct a site tour for such an activity?

Providing all the requested information about every milestone would no doubt
make the plan complete and thorough. However it could also be overkill, and
because of the excessive detail, it could miss the objective of communicating
information about the points that are critical.

There is another asf)ect that is equally troubling. If we follow this
approach, it would strongly imply that the public would be involved in a
meaningful way. By this we mean there would appear to be commitment that the
public could influence the outcome. It is not obvious to us that the
technically inexperienced public could be meaningfully involved in milestones
such as the ES readiness review, or even the start of ES construction.
Another danger is inviting the public to participate in activities in a
non-meaningful way; that is, they "participate" but they have no effect or
influence. This would not be a reasonable proposal. Therefore, we come back
to our basic question: "public participation in what?"

Finally, the issue of credibility is a paramount importance to the repository
program. We believe the State of Nevada would negotiate or seriously review
all of these milestones only if the State was guaranteed that the effort would
produce tangible results. At the very least, such discussion would raise
exp>ectations that results would be forthcoming. We do not feel that we, in
good faith, could provide such a guarantee. To proceed as proposed, despite
our misgivings, could have serious ramifications on our somewhat battered, but
still functioning, working relationship with the State. For this reason it
would be important to understand from a policy viewpoint the milestones the
Project should be willing to negotiate over in the development of the plan.

In sunmary, we believe that we need to seriously reconsider the content and
objective of the FSOPP. We strongly believe that the document needs to be
"activity oriented" by outlining how people, both government representatives
as well as the public, can participate meaningfully in our activities. The
activities that need to be discussed in the plan are ones that provide the
opportunity to truly influence the course of the program. Offering token
"participation" in activities that offer no opportunity to influence the
program could be considered a sham. We strongly believe that a document with

1044

r r ^ A NOV 2 6 1985

Barr/ G. Gale -4-

this potential interpretation would not be beneficial to the projects or to
the program. With regard to this point, you might want to reflect on ideas
developed and presented to the public in the State of Nevada by
Jim Creighton. We, as you, are eager to build program credibility through
meaningful interactions with affected parties, and we hope to use the NNWSI
Project Outreach and Public Participation Plan as our outline.

inald L. Vieth, Director
WMPO:DLV-455 Waste Managenent Project Office

Enclosure:
As stated

cc w/encl :

S. M. Volek, SAIC, Las Vegas, W

B. E. Reilly, SAIC, Las Vegas, NV

V. J. Cassella, DOE/HQ (RW-222) FORS

C. L. West, OPA, DOE/hfV
W. R. Dixon, WMPO, DOE/MV

E. L. Lundgaard, WMPO, DOE/hfV

1045

I :

^ •

a. b.

lA —

— a
< —

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1064

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1065

Department of Energy
Chicago Operations Office
Salt Repository Project Office
505 King Avenue
Coluoibus. Ohio 43201-2693
Commercial (614) 424-5916
F.T.S. 976-5916

October 2, 1986

Barry G. Gale, Chief
Economic & Intergovernmental

Analysis Branch, HQ
RW-252

SUBJECT: SRPO REVIEW OF FACILITY-:SP£CIFIC OUTREACH AND PARTICIPATION

PLANS (FSOPP) REVIEW CRITERIA AND INSTITUTIONAL ACTIVITY CHECKLIST

As per discussions at the September 15-19, 1986 ISCG meeting in Denver CO, we

are providing comments on the above material contained in the ISCG reference

package. The package was received at too short of a time period to provide

these comments before the meeting.

We appreciate the efforts of you and your staff to alert technical staff that
the FSOPPs are required by the Mission Plan and the importance these plans
will have to the successful conduct of site charadterization activities. As
you know, SRPO intends to develop the FSOPP through interactions with the
affected publics. We encourage HQ participation in these interactions at
every level. Once the FSOPP is drafted, however, it will greatly reduce DOE
credibility and trust to have provisions agreed to reversed by another DOE
office. The Activity Checklist implies a level of scrutiny that we feel is
likely to result in such reversals. Additionally, we view the FSOPP as having
a local focus, although there will be State participation throughout its
development; State level issues will remain a part of CiC discussions/
negotiations.

I
Therefore, as an alternative to developing specific review criteria, which may
in the end not be in concert with the FSOPP, we would propose the following
two steps:

0 Training for technical staff to heighten awareness of how public

participation can be successfully implemented (we would be pleased to
provide the services of the consultant who is working with our
technical staff).

Barry G. Gale

1066

- 2 -

October 2, 1986

0 OGR guidance in areas that are anticipated to be problematic or that
are important in terms of equity across the three projects (those
items noted on the Activities Checklist for which HQ policy is
desired/needed, such as review times, access to preliminary
information, site visits, availability of raw data, etc.) to bound the
consultation process that will go on between the project offices and
the affected publics.

I appreciate the opportunity to offer comments on this material and would be
pleased ,to discuss them further with you or your staff. Please call me or
Linda McClain if you have questions concerning these comments.

SRP0:LKM:max:1399LP
cc: C. Peabody, DOE-HQ

J.O. Neff

Project Manager

Salt Repository Project Office

IN* 572-86

1067

Department of Energy

Washington, DC 20585

JAN - 1 1587

Mr. Robert R. Loux, Executive Director

Agency for Nuclear Projects

Nuclear Waste Project Office

Capitol Complex

Carson City, Nevada 89710

Dear Mr. Lcax:

Thank you for your review of our Quality Assurance Plan and for
the comments in your letter of December 4, 1986. We appreciate
your careful review and your interest in our program. We are
currently evaluating your comments to see what changes we can
make to our QA program to strengthen and improve it.

At the Quality Assurance Coordinating Group Meeting, which is
being held on January 29, 1987 in Las Vegas, we plan to address
verbally the major comments you and the other States have made.
We will also be happy to answer any questions you or your
representatives may have and to discuss our response. A written
response for each of the comments in your letter of December 4,
1986 will also be provided to you.

We have enclosed, for your information, a copy of the comments we
received from the State of Texas and those from the state of
Washington. We have not yet received comments from the Nuclear
Regulatory Commission (NRC) , but will supply you with a copy when we
receive them. The NRC comments are expected shortly.

Thanks again for your review and comments. I look forward to seeing
you at the QACG meeting.

Sincerely,

Stephen H. Kale
Associate Director for
Geologic Repositories

Enclosures:

1068

DStA KATTY »»•.?«
Dttcux

STATl Of WASHNCTO!

DEPARTMENT OF ECOLOGY

Mil/ Slop PI'-" • Otyrrpii. Wiihinsion 9850^-8711 • (i06) 459*000
November 20, 1986

Ben Rusche, Director

Office of Civilian Radioactive

Waste Management

U^. Department of Energy ^

1000 Independence Avenue '

Washington, P.C. 20585

Dear Mr. Rusche:

The state of Washington appreciates the opportunity to comment on the Office of Civilian
Radioactive Waste Management (OCRWM), Office of Geologic Repositories (OCR)
•Quality Assurance Plan for High-Level Radioactive Waste Repositories". Earlier state of
Washington comments on quality assurance issues were included as a part of our submit-
tals on the Site Characterization Report, the General Guidelines for the Recommendation
of Sites for Nuclear Repositories, the Mission Plan, and the Environmental Assessment. In
each submittal we expressed concerns about the quality assurance function within the U.S.
Department of Energy organization. In each submittal we expressed a concern about the
lack of an adequate quality assurance program. Recent stop work orders at Hanford and
Yucca Mountain again illustrated the rieed for a strong, independent, and accountable
quality assurance programs.

It appears the writers of the currently issued version of the OGR Quality Assurance Plan
were not aware of our earlier comments and comments made during Quality Assurance
Coordinating Group (QAG) meetings. In our opinion, the current version must be revised
to reflect our positions on several significant areas.

Our comments are divided into general comments on organization, accountability, inde-
pendence, and matrix management, plus detailed comments on specific sections of the
p!an.

Previous state of Washington comments have emphasized the need for organizationally
recognizing the importance of quality assurance. As a minimum, the OCRWM Quality
Assurance Manager sJjojld report directly to the OCRWM Director, the OGR Quality
Assurance Manager should report directly to the OGR Associate Director, and the each
field site quality assurance manager should report directly to the field site project man-
ager. Each quality assurance manager must be fuily accountable for appropriate func-
tions, be independent of project cost and schedule considerations, and report directly to
one boss.

The OCRWM organization chart indicates the OCRWM QA Manager reporting directly
(solid line) :o the Office of Policy and Outreach Director, with an urexplained dotted
line to the OCRWM Director. The OGR organization chart indicates the OGR QA Man-
lier reports directly to the Licensing and QA Branch Chief, who reports to the Siting',

1069

BCD Rusche
November 20, 1986
Page 2

Licensing and Quality Assurance Division Director, who reports to the OCR Associate
Director, who reports to the OCR Associate Director. The chart shows unexplained dotted
lines from the QA Manager to the OGR Associate Director and the OCRWM QA Ivianager.
This leads one to conclude that the OGR QA Manager has three bosses. This is the classic
case of matrix management, where the QA Manager does not report to one boss and can-
not be accountable for the QA function. The person reporting directly to the OGR Asso-
ciate Director has responsibility for siting and licensing, plus the quality assurance func-
tion. This person is, therefore, not independent of projects and costs and schedule.

Figure 3-3 shows the Basalt Site Richland Operations Office (BWIP) with program/project
responsibilities and reporting directly to the Office of Geologic Repositories
(headquarters). The Department of Energy Richland Operations Office shows the BWIP
Project Manager reporting directly to the Richland Operations Manager. This is another
example of the project manager working for two bosses. In the past, the BWIP Project
Manager has been on extended "special assignments" for the Operations Office. On sev-
eral occasions, the QA Manager temporarily sat in for the project manager while the pro-
ject manager was on special assignment. During this period, the QA Manager was clearly
responsible for BWIP costs and schedules. The Quality Assurance Plan must address this
issue in more detail.

The OGR QA plan does not address the issues of how many USDOE QA persons should be
on staff to oversee contractors. At Hanford there has been a unacceptable ratio of
USDOE QA persons to contractor QA persons. USDOE is accountable for the quality of
work and must provide an adequate number of USDOE quality assurance persons to
ensure quality. Recent Hanford QA problems and the resu4ting stop work orders at
Hanford illustrate the problem. The OGR QA plan should discuss this issue and the plan
shou'd specify an appropriate ratio.

Specific comments are as follows:

2.3.1 The Mission Plan should provide an informational basis sufficient to permit

informed decisions, but recent USDOE decisions regarding a second repository
have severely reduced the value of the document.

3.1 The statement that the *QA management functions responsibilities and authori-

ties for OGR have been assigned by the Director, OCRWM to the Associate
Director OGR" seems inconsistent with figurt 3.1.

4.3.2.d The OGR QA Manager "overview" funding for QA activities and identified

insufficient resources through the Licensing and QA Branch Chief through the
SLQA Division Director to the Associate Director OGR. This appears to illus-
trate ovr concern about ihe level of QA personnel within the USDOE organiza-
tion.

4.3.2.e.l Project office QA plans and procedures should be submitted to the appropriate
states and affected Indian tribes for their review and comment

4.3.2.e.3 The appropriate state and affecied Indian tribes should be invited to participate
in project readiness reviews. The invitation should include early access to data.

1070

Ben Rusche
November 20, 1986
Page 3

4.3.2.f.6 Results of surveillance performed should also be reported to the appropriate
states and affected Indian tribes.

4.6 OCR QA Supplement #6 should be changed to indicate that states and affected

Indian tribes will be notified at the time significant quality problems are identi-
fied and again when resolved. Significant problem reporting and corrective
action records are a significant part of the record for NRC licensing and as such
should become permanent records.

5J.1 The project QA plan and/or applicable QA administrative procedures should
describe a process for review and comment by appropriate states and affected
Indian tribes.

Appendix A - Quality Atsurance Manual EvaluatloD-Haodling, Storage and Shipping —
Requirements for control of samples from collection of the sample analysis
should be established and documentation for control of each sample must be
■ provided.

Supplemental QA Requirements - Supplement No. 11

1.0 Appropriations have been approved to begin preliminary design work on the

Hanford Waste Vitrification Plant and criteria are being developed to determine
which wastes should be vitrified. Both activities require an adequate QA pro-
gram. The supplement should be amended at this time to include Hanford
wastes.

Supplemental QA Requirements - Supplement No. 12

We question whether this supplement is appropriate. Arbitrarily limiting non-
DOE observers to one observer during each audit cycle is contrary to the NWPA
because the states, tribes and NRC have a statutory role which allows participa-
tion. USDOE should substitute a process whereby states, tribes and NRC are
encouraged to cooperate on audits and the audit team is made up of the most
highly qualified personnel.

Please contact me or Don Provost if you have questions.

Sincerely,

Terry Husseman, Director

Office of Nuclear Waste Management.

THAlt

cc Jim Knight
Carl Newton

1071

United States Government

Department of Energy

memorandum

c*TE FEB 0 2 i387

REPL'' TO

ATTN Of RW-2 2 3

SUBJECT Review of Portland, Oregon, Quarterly Meeting Commitments and

Highlights, and Review of Spokane, Washington, Quarterly Meeting
Plans and Issues

Distribution

A meeting has been scheduled in Room 2E071 at 10:30 a.m.,
Wednesday, February 4, to review the Quarterly Meeting material
from the Portland, Oregon, meeting and for the Spokane, Washington,
meeting.

Attached are the commitments from the Portland meeting and their
status.

Barry G. SJile, Chief

Economic and Intergovernmental

Analysis Branch
Office of Civilian Radioactive

Waste Management

tachments

stribution:

Barrett, RW-32

Bresee, RW-22

Easterling, RW-4?

Gale, RW-40

Isaacs, RW-22

Kale, RW-20

King, RW-4 3

Knight, RW-24

J. Leahy, RW-223

B. Mussler, GC-11

C. Peabody, RW-2 2 3
S. Rousso, RW-10
J. Saltzman, RW-42
S. Smith, Weston
R. Stein, RW-23

M. Wisniewski, CP-23

1072

Lnitsd States Government Department of Energy

(t>«i

memorandum

=*'* SEP 1 2 1S86

■ EPI-T TO
ATTNO»jj„_20

*"''*'^Coinjnitnents and Meeting Highlights from the Quarterly Meeting
of States and Indian Tribes Held in Portland, Oregon,
- August 13, 1986

TO:

Distribution

Attached are the commitments and meeting highlights
(Attachment A) from the August 13, 1986, Quarterly Meeting of
States and Indian Tribes.

For several of the commitments, we can now provide a status
report:

COMMITTMENT
NUMBER

1 See Attachment B

3 See Attachment C

4 The Project Offices received the final
Environmental Assessments (EAs) the first week of
May. The decision documents (DOE/S-0048, the
Secretary's recommendation document, and DOE/RW-
0074, the methodology report) were received on
May 23. The President approved the
recommendation on May 27. DOE held a press
conference and made the formal release of the
final EAs and the decision documents on May 28,
the same day the States and Indian Tribes were
notified.

6 The next Transportation Coordination Group
meeting will be held this Fall. Arrangements for
the meeting are currently underway. No specific
date has yet been set.

7 The OCR QA Plan, OGR/B-3, Revision 1, (DCE/RW-
0095) dated August 1986, was sent to the State
and Indian Tribe representatives on
September 8, 1986.

9 The FY 1986 supplemental grant application from
the Washington State Department of Ecology has
been awarded for $110,000.

10 See Attachment D

1073

Tha DOE HQ representative is Tom Isaacs and the
Project Offices representative is Don Vieth.

Also attached is a letter we sent to the National Academy of
Sciences (MAS) on July 25, 1986, and HAS ' s response of
August 14, 1986, (see Attachment E) .

If you have any questions or comments, please contact Barry Gale
or Judy Leahy of my staff at 252-1116.

'WilTia'itr^ J. Purcell
Associate Director for

Geologic Repositories
Office of Civilian Radioactive

Waste Management

Attachments

1074

ATTACHKENT A

1075

QU/JITERLY MEETING OF STATES AND IhTOIAN TRIBES

Portland, Oregon

August 13, 1986

Meeting Highlights

CHAIRPERSON; Russell Jim, Yakima Indian Nation

PARTICIPANTS:

States and Indian Tribes

H. Hal Aronson, Yakima Indian Nation

Albert Barros, Nez Perce Indian Tribe

'-/arren Bishop, Washington State

Mary Lnu Blazek, Oregon Departaienl: of Energy •

Ginny Bronson, Umatilla Indian Reservation

Williaia Burke, Umatilla Indian Reservation

Curtis Canard, CERT

Gail Chehak, NCAI

Sandra Crowe, Yakima Indian Nation

Bill Dixon, Oregon Department of Energy

Barbara Foster, NCSL

James Friloux, Louisiana

Steve Frishman, Texas

Kevin Cover, Nez Perce Indian Tribe

John Green, Mississippi

Candace Greene, Nez Perce Indian Tribe

Gary Greene, Nez Perce Indian Tribe

Ron Halfrooon, Nez Perce Indian Tribe

Michelle Henry, Nez Perce Indian Tribe

Daniel Hester, Umatilla Indian Reservation

Robert Holden, NCAI

James B. Hovis, Yakima Indian Nation

Nancy E. Hovis, Yakima Indian Nation

Terry Husseman, Washington State

John Hutchins, CERT

Elisabeth Jacobs, CRITFC

Bob Loux, Nevada

Sidney Martin, Mississippi

Reine Moffett, Nez Perce Indian Tribe

Mai Murphy, Nevada

Ralph Patt, Water Resources, Oregon

Henry Penney, Nez Perce Indian Tribe

Don Provost, Washington State

Wyatt Rogers, Jr., CERT

Cheryl Runyon, NCSL

1076

Carl Sampson, Umatilla Indian Reservation

Cynthia Scott, Nez Perce Indian Tribe

Williaa Spell, Louisiana

Lisa Spruill, Mississippi

Pat Spurgin, Utah

David Stevens, Yakima Indian Nation

Don Tahkeal, Yakima Indian Nation

Bob Taylor, BIA

Dean R. Townsley, Yakima Indian Nation

T.R. Webster, IHS Portland

Del T. White, Nez Perce Indian Tribe

Danae Wilson, Nez Perce Indian Tribe

Jack Wittman, Yakima Indian Nation

David Wolfe, Umatilla Indian Reservation

Bill Yallup, Jr., Yakima Indian Nation

U.S. Department of Energy

JoAnne Comins-Rick, SWIP

Barry Gale, HQ

Roger Gale, HQ

Ken Goodmiller, HQ, GAO

Tom Isaacs, HQ

Jim Knight, HQ

Judy Leahy, HQ

Linda McClain, SRPO

Jim Mecca, BWIP

Bob Mossier, HQ

Jeff Neff, SRPO

Lee Olson, EWIP

Max Powell; BWIP

Williaa J. Purcell , HQ

Sam Rousso, KQ

Ralph Stein, HQ

Don Vieth, NN'^'S I

Mike Wisniewski, HQ

Nuclear Res^ulatory Commission

F.R. Cook
Alma Hale

Organizations

M-adeline Brown, Rockwell
John Gervers, LATIR Energy Consultants
Steven P. Kraft, Edison Electric Institute
Lisa Stevenson, WESTON

1077

POITLAND MEETING COMWITMENTS

1. Continuation of Albuquerque tfl: "DOE will provide Co States and
Indian Tribes copies of its annual planning guidance letters, if
pertinent to site characterization (continuation of Atlanta
consnitment iH)."

2. Continuation of Albuquerque 1^2: "DOE will provide States and
Indian Tribes with design requirements and design reports for
project-specific advanced conceptual designs. The original
anticipated date of May 1986 may slip (continuation of Denver
coranicment '^3, with modification of delivery date.)"

3. DOE will make available copies of Secretary Herrington's letter
to Governor Bangerter explaining EA release notification.

U . DOE will deterniine when the Project Offices received the £As and

decision documents and inform the States and Indian Tribes.

5. DOE will provide a minimum of 30 days advance notice, prior to a
date certain, for release of the SCP for public hearings.

6. DOE will provide to States and Indian Tribes the schedule for the
next Transportation Coordinating Group meeting.

7. HQ will provide control copies of QA plans to the States and
Indian Tribes.

8. States and Indian Tribes will provide comments to DOE on the
Financial Assistance Guidelines, including comments on
eligibility for funding for participation in the NRC licensing
process. DOE will deal with this issue specifically in the
General Guidelines, which will be revised and available by
September 15.

9. HQ, by August 20, will examine the status of the request by the
State of Washington for'using funds to review the methodology, as
well as to conduct six other tasks, submitted in their memo of
July 7.

10. DOE will contact the consultant to the NAS who wrote a letter to
DOE disagreeing with the translation of the methodology to the
final decision, for permission to send copies of chat letter to
the States and Indian Tribes.

11. DOE will approach NAS to encourage the involvemenc of Scates and
Tribes in DOE/NAS meetings.

12. DOE will provide transcripts of the Udall hearing to the States
and Indian Tribes.

13. DOE will brief the States of Nevada and Washington on the
methodology and its application.

1078

14. A planning subcomnii tcee composed of Ron Halfmoon representing the
Chree Indian Tribes, Terry Husseman representing tne States, and
two DOE representatives (one from HQ and one representing the
Project Offices, TBD next week) will meet to structure a model
for future quarterly meetings that will be open to the public.
They will prepare a proposal in writing, to be forwarded to
affected parties by October 1.

REVIEW OF ALBl'QUERQUE COMMIPiENTS

The cominitments made at the April Quarterly meeting in Albuquerque were
reviewed. (See page II for a summary of their status.)

There was considerable discussion concerning commitment number 5:

"DOE will convey to the Secretary, the States
and Indian Tribes request that the
Environmental Assessments (EAs) not be released
without a 30-day advance notice to States and
Indian Tribes, specifying the exact release
date. When the EA release date is announced,
DOE will also provide States and Indian Tribes
a description of all documents to be released
with the EAs, and to the extent possible, with
key decision dates in the process."

The States and Indian Tribes expressed strong dissatisfaction with the
fact that they did not receive advance notice about the release of the EAs and
the nomination and recommendation decision. They went on to say that DOE had
made a commitment to provide at least two weeks notice, and preferably 30 days
notice, and that the Department failed to meet either of those commitments.

DOE replied that they did convey the States and Indian Tribes' request to
senior DOE management. However, ultimately the nature and timing of the
decisions by senior Department officials were such that date-certain advance
notice was not possible. The OCRWM program staff were informed only on the
morning of the announcements, and then began immediately to call affected
parties to notify them. Because OCSWM itself received such short notice,
there was no time to prepare a Briefing Book to accompany the Congressional
briefing that was held the next day.

PORTLAND MEETING HIGHLIGHTS

Financial Assistance

Headquarters explained the difference between the two sets of draft
financial assistance guidelines that were provided in the meeting reference
package. The Office of Civilian Radioactive Waste Management ... Pol icy
Guidelines, July 1986, are umbrella guidelines that deal with all aspects of
the program, including the ^tRS if it is approved by Congress. The purpose of
these guidelines includes clarifying differences among grants, contracts, and
cooperative agreements; defining affected parties for purposes of establishing
eligibility for financial assistance; clarifying the decisionmaking process to
establish procedures for timely resolution of issues; and defining activities
which are ineligible for funding.

1079

' The Repository Program GuiJelines are more specific and prov-.de more
detail on procedural issues. They were originally issued on June 2^, 1983;
revised and reissued on Septeaber 7, 198i; and supplemented by means of a
February i, 1986, memorandum from Ben Rusche to the DOE Operations Offices,
dealing with the implications of the Nevada lawsuit. The I98i Guidelines plus
the Rusche memo are what are currently being used to evaluate grant proposals.

The draft Repository Guidelines in the reference package for this meeting
("Internal General Guidelines for Implementing Financial Assistance (Grants)
for Repository Programs .. .August 1, 1986") incorporate the Rusche memorandum
into the 198't Guidelines, and also contain the following major areas of
revision:

it.U Criteria for funding independent data collection and studies and

allowability of funding of the MRS, defense waste and transportation
as they relate to repository development; and

6.1 Guidance for phase-down funding for States nominated, but not
recommended .

The States and Indian Tribes asked who will determine whether a planned
activity by the States and Indian Tribes is appropriate in the sense that it
constitutes an "overview" of the program and by what standard will DOE judge
the adequacy of the quality of the proposed activity. DOS said that the DOE
program must be the reference point, and that State and Indian Tribal
proposals should reflect a good understanding of what DOE proposes to do.

The States and Indian Tribes commented that the issue is whether the data
that they collect will be usable in a licensing proceeding. They expressed
concern that DOE would deny funds to collect data based on an a priori
judgement that the data collected will be of poor quality, and said that the
quality of the data should be "our problem" when we present the data to the
.NfRC. DOE agreed, but indicate*! that poor data might be an issue during a
hearing.

The States and Indian Tribes asked whether their participation in the NRC
licensing process will be an activity which is fundable. DOE said that the
decision as to who is an intervener and who has standing is up to VRC .
However, DOE intends to continue funding to affected parties during the
licensing process.

The schedule for issuing final financial guidelines is as follows: DOE
will try to revise the Policy Guidelines by August 22, and send the revision
to the States and Indian Tribes for review and conirent. The Policy Guidelines
will be sent as a package with the draft Repository Guidelines, and both will
be on the agenda for discussion at the September 16-18 Institutional
Socioeconomic Coordination Group (ISCG) meeting in Denver. Subsequent to the
ISCC meeting, both Guidelines will be issued in fina! fonn.

1080

Defense Waste

The States and Indian Tribes aslced when the allocation between defense
and the ratepayers' contributions is going to occur. DOE replied that a
Federal Register Notice (FRN) describing three methodologies for determining
the fair share of allocation costs will be published in about a Bonth. The
FUN will propose three alternative formulas for determining the amount that
would be paid by Defense Programs (DP), each of which would be applicable to
any quantity of waste. The FRN will include two hypothetical examples of cost
allocations based on assun.ed amounts of civilian and defense wastes in two
assumed pairs of repositories. The public comment period will last «5-60
days, during which comments will be requested about the formulas.

After the comments are evaluated, DOE will propose a formula which will
serve as the basis to satisfy the requirement under Section 3, to determine an
allocation approach. Congress then has to act on the formula, and also will
decide on the timing and form that such funding would take. DOE would then
work with the Office of Management and Sudget to implement the formula. The
formula concept will not preclude DOE from requesting money from the Federal
treasury to pay for defense waste in the short run; however, the earliest that
sucb a request could be made is in the DP '88 budget request, since it is not
in the '87 budget, nor is it in the OCRUTI "88 budget request.

The States and Indian Tribes also asked how much defense waste will be
stored at Hanford, in view of the suspension of the second repository
program. DOE replied that once the amount of waste in the first repository
has reached 70,000 metric cons, a second repository must be opened before
additional waste may be stored in the first. The schedule in the Mission Plan
still applies. It is the flow rate that determines the timing need for a
second repository, not the volume of defense waste or the contents of the
waste in the first repository.

The FRN deals with two repositories, because it is likely that the 70,000
metric ton limit will be exceeded. What is not certain is when that will
occur. The current estimate is that it will be about the year 2020, in which
case the iiiid-l990s is when site-specific activity on a second repository will
need to resume in earnest. The Department does not have any plans to
recommend removing the 70,000 metric ton cap on the first repository required
by the NUPA.

Licensing Support System

DOE presented a status report on the Licensing Support System (LSS). DOE
is preparing to contract for LSS design and implementation. A procurement
package containing a statement of work, procurement forms, evaluation
criteria, and instructions to offerors has been sent to the Department's
procurement office, and a Request for Proposals (RFP) is currently being
prepared. DOE expects the RFP to be issued about September and a contract
award to be made in early 1987.

1081

DOE is also developing LSS administrative specifications and procedures.
Those that have been prepared and are currently in internal review are:
record collection and storage specifications; record collection procedures for
OGR/HQ; record storage and retrieval procedures for OGR/HQ; issue tracking
procedures; and conmitment tracking procedures. DOE expects the internal
review to be completed about the end of August. Then, in September, the
documents will be given to NRC, the States, and Indian Tribes for review, and
will be discussed at a meeting of the Interagency Coordinating Group Committee
about a month later.

The States and Indian Tribes asked about the relationship between the
above activities and the NfRC Part 2 changes. DOE said that the LSS is
independent and is a pivotal information storage and retrieval system for the
program. However, DOE is attempting to design the system to meet the needs of
the licensing process. While the complexity of the system requires that
development begin prior to a final N'RC rule being in place, DOE will modify
the system if needed, to comply with NKC licensing requirements.

With respect to participation by affected parties, DOE emphasized that
there is an expectation of participation. Announcements of Interagency
Coordinating Group meetings are sent to all States and Indian Tribes and the
expectation is that they will participate. DOE is also trying to avoid
overlapping meetings and schedule conflicts by maintaining a meeting board at
Headquarters, which is consulted when setting up meetings.

Sice Characterization

The States and Indian Tribes asked whether the prograni is in the site
characterization phase (as opposed to a site investigation phase — a term
used at the recent Quality Assurance Coordinating Group meeting), and, if so,
indicated that a Site Characterization Plan (SCP) is required before
activities may ^ake place. DOE confirmed that this is the site
characterization phase, but said that the availability of an SCP only applies
to the sinking of an exploratory shaft and other specific activities contained
in the VWPA. DOE is in the process of preparing for information a 15-20 page
sv:mmary document that will describe the activities that are currently going on
at the Federal sites and then will be sent to States and Indian Tribes. The
SWIP and Nevada Project Offices have submitted their documents to
Headquarters, and the review is expected to be completed in about two weeks.
The process of preparing these documents has taken longer than expected,
because in certain cases it has been difficult to determine whether an
activity is ongoing or new work.

The States and Indian Tribes said that they need to know not only what is
going on now, but also what is planned for the future. "roin their
perspective, it is important to understand the entire array of tests, and they
want to see all material related to a study area. DOE said that the
distinction between ongoing and new activities is important because DOE-NRC
agreements with respect to the SCP require that lengthy detailed study plans
be prepared for all new work. DOE agreed to provide copies of all completed
plans pertaining to on-going work when it issues the 15-20 page sunimary
cccu:nent .

1082

Quality Assurance

A quality assurance plan was issued in March, and copies were sent to the
States and Indian Tribes. In response to a State and Indian Tribe request,
DOE also agreed to provide controlled copies of revised quality assurance
plans to the States and Indian Tribes in the near future. This will ensure
their receipt of revisions. The States and Indian Tribes questioned whether
it was appropriate that at BWIP, the Hanford quality assurance staff person
occasionally sits in for the project manager. DOE replied that although it
had been discussed with N'RC, at this stage of the program, the Department has
the authority to determine its own organizational arrangements. DOE went on
to say that it was confident that the OCRWM QA program will be in place to
assure that the data necessary to the licensing process will be fully
qualified. DOE also noted that the acceptability of data taken in the past
must be evaluated on a case-by-case basis, with each case judged individually.

Impact of Gas Exploration on Resources at Hanford

Bill Lynley, from the Washington State Department of Natural Resources,
made a presentation on current drilling activity in the vicinity of the
Hanford Reservation. He indicated that recent findings indicate that the area
around Hanford shows good potential for oil and gas generation. Mr. Lynley's
office is attempting to evaluate the potential that drilling activity might -
occur on the repository site in the future, if and when records pertaining to
the repository are no longer available.

OCRWM PROGRAM UPDATE

Appropriations Committee Action

The States and Indian Tribes announced at the meeting that the Senate
Appropriations Committee had just passed a DOE appropriations bill providing
J380 million for FY87, When asked by the States and Indian Tribes to comment,
DOE expressed disappointment, and indicated that they were not able to say yet
what the impact will be, should the bill be passed by both houses of Congress
and signed into law.

OCRWM Organization

Headquarters e.xplained the OCRWM and OCR organizational charts and
provided the names of the incumbents in each position. Headquarters also
announced that an RFP for cask development was issued and that the
Transportation Institutional Plan will be released soon.

■National Academy of Sciences

With respect to the National Academy of Sciences (S'AS), Headquarters said
that "they have contacted NAS about possibly using them in an oversight role
for some of the site characterization work. In the discussion that followed,
the States and Indian Tribes asked that since NAS had given a favorable
opinion on the methodology and its application, doesn't NAS have a vested
interest in the decision, and thus they questioned the Academy's
appropriateness for future independent peer review.

1083

DOE said that they were aware of no member and only one consultant of the
NAS board who had expressed some mild reservations regarding the application
of the methodology in selecting the three sites for recommendation, and that a
consultant to the Board had written a letter to DOE expressing disagreement
with the translation from the methodology to the final decision. DOE
emphasized that the methodology was decision-aiding, not decision-making, and
thus HAS has no stake in the final decision. DOE also observed that the
concerns that the States and Indian Tribes have expressed are directed more to
MAS than to DOE and perhaps should be comirunicated to the Academy directly.

Other Independent Peer Review

The States and Indian Tribes asked whether another outside panel should be
convsned. Headquarters said that outside review is welcomed, and that the
States and Indian Tribes may convene panels of their own, the EEC-WIPP model
being a pottntially good model. The States and Indian Tribes expressed the
opinion that DOE should not work with any peer review group that will not
involve the affected parties. They stated that affected parties should be
permitted to review any peer review agreement in advance of it being entered
into, and provide comments in writing to DOE. DOE said that they would
encourage NAS to involve the States and Indian Tribes in DOE-NAS meetings
consistent with their operating procedures.

Second Repository Program

The States and Indian Tribes asked DOE to explain the significance of the
decision regarding the second repository program. DOE replied that site
selection activity had been deferred indefinitely, but that ko;-k is continuing
on technical and development studies, so as to be in a better por.ition to
proceed with site selection when the time comes. DOE is cooperating on art
international basis in studies relating to crystalline rock, trying to enhance
the ability to conduct certain tests, and examining other geologic media. A
description of the activities planned for the second repository program will
be presented in a supplement to the Mission Plan, which is currently being
prepared.

The States and Indian Tribes expressed strong disagreement with the
second repository decision and with the way in which that decision was reached
and announced. They said that by taking unilateral action DOE violated the
spirit of consultation and cooperation, and they also posed several questions
pertaining to the basis of authority on which the decision was made. DOE
declined to discuss the legal aspects of the issue, citing the litigation
which is currently in progress.

Finally, the States and Indian Tribes asked what specifically prompted
the Chicago Project Office to prepare the April and May options memoranda, and
whether similar options papers are being prepared for the first repository
?rogi.-a«. DOE replied that the Department staff routinely assesses program
opticas, but that no such options are being considered for the first
repository.

Effect of Gramm-Rudman-HoU ings on the OCRWy Program

Headquarters stated that the OCRWM program is not exempt from
Gramni-Rudmann-Hollings . The actual impact is based on deficit projections, so
in rY36 there was a -X reduction and in FYS7 it may be in the order of 3-10«.

lasis
The

1084

' Purpose and Scope of Future Quarterly Meetings

The States and Indian Tribes expressed dissatisfaction with the quarterly
a)eetings. In their view, cortmi tments are frequently not met and litigation
prevents the discussion of too many issues. They proposed that in the future,
meetings be held with DOE principals at least quarterly, on a rotating b
in the three affected States, publicly announced, and open to the public,
main focus of the meetings should be discussed, with prograa status reports
not taking up more than half of the agenda. DOE should host the meetings and
develop the agenda jointly with the States and Indian Tribes. The State of
Washington volunteered to be the site for the next meeting, in the Fall.

A subcommittee of State, Tribal and DOE representatives was established
to worlc together to develop a model for future meetings, to report back in
writing to the affected parties by October 1.

EIS Status Report

DOE presented a status report on the progress of the Environmental Impact
Statement (EIS) covering current activities, the anticipated schedule for
completion, and the plan for State and Indian Tribal involveoient .

EIS scoping will follow the completion of the SCP, because it is
necessary for the public to understand what site characterization entails in
order to participate fully in the scoping process. The States and Indian
Tribes suggested that there may be some value to conducting EIS scoping
simultaneously around the country to convey its importance as a national
effort.

SCP Status Report

DOE presented a status report on the development of the SCP and
distributed a handout of the SCP completion schedule for the Federal sites.
The second draft of individual chapters and the assembled draft would be
provided to the States and Indian Tribes for review. Headquarters will
provide periodic updates of the schedule to the affected parties. The States
and Indian Tribes emphasized the importance of having references in advance,
in order to facilitate their ability to review the documents in a short time.
DOE indicated that references will be provided in the final SCP.

1085

Albuquerque Commitment

U.S. Department of Energy (DOE)
will send to all States and
Indian Tribes new set« of tech-
nical coordination group minutes.

DOE will provide to States and
Indian Tribes copies of its
annual planning guidance letters,
if pertinent to site characteri-
zation (continuation of Atlanta
connitment It/).

DOE will provide States and Indian
Tribes with design requirements
and design reports for project-
specific advanced conceptual de-
signs. The original anticipated
date of May 1986 may slip (con-
tinuation of Denver commitment
'^3 with modification of
delivery date).

DOE's goal is to provide advance
notice to States and Indian
Tribes of DOE/N'RC meetings at
least 30 days in advance. If a
change in date occurs, DOE will
notify the States and Indian
Tribes as soon as possible
(continuation of Atlanta commit-
ment #IU , with modifications).

DOE will convey to the Secretary,
the States and Indian Tribes'
request that the Environmental
Assessments (£A) not be released
without a 30-day advance notice
to States and Indian Tribes,
specifying the exact release date.
WheQ the EA release date is an-
nounced, DOE will also provide
States and Indian Tribes a de-
scription of all doc-jjnents to
be released with the EAs , and to
the extent possible, with key de-
cision dates in the process.

Respons ibi 1 i ty
R. Stein

Status

B. Purcell

R. Stein

J. Knight

B. Purcell

Completed: will
be a continuing
commitment .
J. Leahy will
send a list of
minutes sent to
date.

Carried over

Cont inuing
objective

Partially
comple ted :
see highlights

77-lOA 0

n - 35

1086

Albuquerque Commi cmenC

WE will send to Che first re-
pository States and Indian Tribes
and the Project Offices via Express
>fail copies of the EA Congressional
Briefing &ook the day the final EAs
are released.

Responsibility
B. Gale

Status

No briefing
book prepared

7. In the next ISCG package, DOE B. Gale

will include a copy of the State
and Indian Tribe mailing list for
the States and Indian Tribes to
review and update as needed.

3. DOE/Office of Storage and Trans- L. Barre
portation Systems (OSTS) will
develop alternatives for in-
cluding host State and Indian
Tribal participation in Trans-
portion Coordination Group
activities. These alternatives
will be sent by letter to R. Loox,
NV, with a copy sent to all other
affected parties.

9. DOE will submit informatipn to R. Gale

States and Indian Tribes regarding
whether there are official appeals
in processes for decisions made on
grants to States and Indian Tribes.

10. DOE will provide States and Indian
Tribes with Draft Financial Assis-
tance Guidelines for their review
and comments.

11. DOE will provide to States and
Indian Tribes an updated Site
agenda; Characterization Plan
(SCP) schedule when completed
— approximately mid-May 1985
(continuation of Atlanta
coaanitment '/8. with modified
delivery date).

12. DOE will provide States and Indian R. Stein
Tribes with agendas of the tech-
nical coordination group meetings

in advance of the actual meeting
dates. DOE will also provide
States and Indian Tribes with
one-page summaries of each tech-
nical coordination meeting
(reiteration of Atlanta commitment '^5 )

R. Gale
B. Gale

R. Stein

Coepleted:

St. Louis ISCG;
June 16-18, 1986

Completed: Copy
of letter in
Portland, OR, re-
ference oackage;
June 9, '.985

Conpleted: Draft
Financial Assis-
tance Guidelines
reference package ;
August 13, 1986

CoBpleted: Draft
Financial Assis-
tance Guidelines;
August 13, 1986

Completed: Port-
land meeting
August 13, 1986

Completed: will
be a continuing
coemitment

1087

Albuquerque Commitment

13. The next meeting will be hosted by
the Indian Tribes. A tentative
tiae and date for this meeting is
the first or second weeW of August
in Eugene or Portland, Oregon.
Russell Ji" of the Yakima will work
with Barry Gale on arrangements.

Respons ibil i ty
R. Jim

S ta:us

Completed:
Portland meeting;
August 13, 1986

1088

ATTACHMENT B

1089

SIP 5T3aK

RW-222

FY 1987 Baseline Planning

Jeff Neff

Lee Olson
Don Vietii

This memo provides guidance to be used by your respective projects
in developing FY 1987 baseline plans.

With the Presidential approval of sites for detailed characterization
and the beginning of the next phase of the program, which involves
a very extensive amount of work and a significantly larger budget,
detailed planning is required to ensure that project activities
are conducted effectively and efficiently. Although the many
facets of the program make such detailed planning difficult,
particularly with regard to scheduling specific activities, your
efforts are required to develop the most reasonable plans possible
for FY 1937. To ^ide your efforts, OGR has identified its
priorities for FV 1987 and has developed a list of specific
milestones. The priorities are as follows:

FY 1987

First Repository Program Priorities

First Priority Ite:ns (not in order)

o Ensure adequate quality assurance for exploratory shaft and
site characterization activities.

o Complete all actions necessary to lift stop work orders and
proceed with geoscience monitoring activities in full accord
with OCRVfM, OGR and project quality assurance directives.

o Establish local office In Texas for salt.

o Obtain access to land for salt and tuff.

o Issue the Site Characterization Plans, relevant study plans,
and Conceptual Design Report.

o Issue the Environmental Monitoring and Mitigation Plans.

o Issue the Socioeconomic Monitoring and Mitigation Plans.

1090

- 2 -

o Initlat* Bonitorlng ot enviroiunental and socioeconomic impacts.

o Obtain required permits for exploratory shaft construction and
site characterization activities.

0 Proceed with geologic, hydrologic and geochemical
characterization of sites.

o Support grants to affected States and Indian Tribes.

o Negotiate C&C agreements.

o Issue MGDS requirements document.

o Issue functional design requirements for the exploratory
shaft.

o Complete design of the exploratory shaft.

o Issue waste package and repository functional requirements
for advanced conceptual design.

o Prepare post closure waste package strategy plans.

Second Priority Items (not in order)

o Ensure adequate quality assurance for remainder of program.

o Prepare Regulatory Compliance Plan.

o Implement waste package strategy plans.

o Start waste package advanced conceptual design.

o Proceed with development of performance assessment models.

o Support NRC interactions not required for First Priority items.

o Support development of licensing support system.

o Rebaseline project schedule and cost estimate.

Third Priority Items

o Other program activities including

repository advanced conceptual design
- planning to support Environmental Impact Statement

1091

- 3 -

To further guid« your planning, the attached milestones have been
identified. Milestones from FY 1986 that have not yet been
achieved are included. We recognize that the dates Identified for
certain of the milestones can no longer be achieved and are not
consistent with your latest plans. The dates for the salt site
characterization and exploratory shaft activities are examples of
this situation. Nevertheless, your FY 1987 baseline plans should
come as close as possible to achieving the milestone dates in the
attachment. The dates for several of the milestones are
designated TBD, i.e., to be deteraiined. These dates require
further discussion between your staffs and their counterparts in
OGR, which should take place before your plans are made final.

As of now, the following new FY 1987 budget authority should be
assumed to be available:

Total Project

BWIP S132.4 million

NNWSI $128.8 million

SRPO 5147.3 million

This new budget authority, in addition to the FY 1986 uncosted
obligations, should be adequate to Implement the FY 1937 program.
Let us )cnow as soon as possible if this is not the case. The
difference between the above amounts and the budgets previously
planned are currently earmarked for carryover to FY 1988, and can
possibly be drawn down in FY 1987 with HQ approval. Such drawdown
should only occur if necessary to conduct needed work in FY 1987.
If your plans indicate th .t less funds than those shown above are
required for FY 1987, the remainder will be carried over to FY
1988. Further, Congress has not completed action on the FY 1987
budget. The actual funds appropriated by Congress may not
support the amounts shown above. In that event, your plans
may have to be revised.

The past stipulation that funds requested from Congress for the
exploratory shaft are not to be used for other project activities
is to be maintained. Within the total project budget shown above,
the following budget authority has been earmarked for the
exploratory shaft:

Exploratory Shaft

BWIP $21.5 million

NNWSI $16.0 million
SRPO $23.4 million

1092

- 4 -

You Bhould ensure that these funds, plus the FY 1986 uncosted
obligations for the exploratory shaft, are not used for other
project activities. The exploratory shaft funds identified above
may be less than what is needed to carry out the achievable FY
1987 exploratory shaft activities. As with the total project
budget, let us Jcnow, as soon as possible, if this is the case.
Exploratory shaft activities are not to be delayed for a lack of
funding.

Our objective in providing this guidance is to enable your project
to have its FY 1987 baseline plan in place as close to October 1,
1986, as possible. Once this plan is in place, rebaselining will
req-jire Headq-jarters approval. Also, the approval of the
Director, Repository Coordination Division, will be required for
changes in any individual milestones in the attachaent that are
designated Headquarters-controlled. You are requested to submit
your FY 1987 baseline plan to Headquarters as soon as possible,
.but no later than the and of October 1986.

If you have any questions, please contact your Project
Coordinator.

Ort^TAl 9l^n#d by:

Wllll»m J. Pxilotll

William J. Purcell
Associate Director for
Geologic Repositories

Attachment

cc: SRcusso, RW-10
RHilley, RW-30
RGale, RW-40
D. Siefken, Weston

1093

Attachnent

MSA Milestones - SRP
through September 1987

Svatems

•1. Draft Systeas Engineering Managenent Plan 8/86
received at HQ for review and approval

•2. Draft MGDS Requireaents Document received at 6/86
HQ for review and approval

*3. Draft MGDS Description Document received at 6/86
HQ for review and approval

*4. Reference Data Bases for Waste Package, TBD
Repository and Site to HQ for review

5. Configuration Management Plan to HQ for TBD

review

6. Initiate Conceptual Model Development of 6/87

Total System Postclosure Performance Model

Waste Package

1. Performance Assessment of SCP Waste Package 7/86

Design initiated

*2. Draft Waste Package Advanced Conceptual Design 7/86
(ACD) Requirements to HQ for review and
approval

•3. Report on Waste Package Postclosure Compliance 7/86
Strategy to HQ for review and approval

4. Initiate Testing on New Candidate Alternate 10/86

Materials

5. Issue Waste Package Design Report for Spent 10/86

Fuel, DHLW and WV waste to HQ

6. Issue Brine Migration Model Comparison Report 11/86

• Headq-jarters controlled milestone, to be changed only under
signature of the Director, Repository Coordination Division,

1094

- 2 -

7. Issua Detail Tast Plan for all Spent Fuel 4/87

tests to HQ

8. Issue Detail Test Plans for all general TBD

corrosion tests

9. Initiate Integrated Package Component Testing 5/87

*10. Initiate Waste Package Advanced Conceptual 1/87
Design

11. Issue Draft Report of WP Fabrication Studies 7/87
and Weld Developoent Techniques

Site

1. Drilling of Engineering Design Boreholes (ZDBH) 1&/86

initiated

2. Environmental Data Collection for 10/86

Surface-based Characterization Activities
initiated

3. Recommendation to Proceed with 3-D Seismic 10/86

Survey to HQ for approval

4. Submit comprehensive summar"/ of data 11/8 6

available on geoengineering properties,
in Deaf Smith

5. Surficial Geologic Mapping of Site Area 7/87

completed

6. Seismic Reflection Model interim results to 11/86

HQ for review

•7. Complete Surface-Based Test Plan 12/86

8. Complete 6 ESF Monitoring Wells 2/87

9. Complete ESF Foundation Borings 3/87

10. Complete EDBH Testing 3/87

11. Initiate Long-Term Groundwater Monitoring 4/87

1095

- 3 -

12. Initiate Deep Hole Hydronest Drilling/Testing 1/87

13. Interim Rock and Soil Properties Report on 5/87

EDBH issued to HQ

14. Initiate Shallow Hydronest Drilling/Testing 1/87

15. Site Environaental data for EST permits 7/87

completed

16. Complete 3-D Seismic Survey 2/87

17. Hydrology Program Plan to HQ for review and 5/87

approval

Repository

1. Operating Concepts Final Report issued TBD

•2. Repository SCP Conceptual Design Report 9/86

received at HQ for review and acceptance

•3. Draft Repository Subsystem ACD TBD

Requirements Document to HQ for review
and approval

4. Report Outlining a Preliminary Study of the TBD

Effects of Uncertain Geologic Data on
Design of the Underground Facility
to HQ for information

5. Retrievability Compliance Plan Strategy to 10/86

HQ for review

6. Repository Performance Assessment Conceptual 12/86

Model development completed

7. Rod Consolidation Study to HQ 11/86

8. Final Waste Emplacement Mode Study Report 2/87

issued to HQ

9. Review of concepts developed by HEDL for 7/86

remote/automated waste handling systems
initiated

10. Initiate Repository Advanced Conceptual Design 1/87

1096

- 4 -

11, Initiate Preparation of Prototype Equipment 8/87

Design

12. Initiate Developments of Seal Requirements 6/87

•13. Pinal FY 1989 Project Validation Material 3/13/87
to HQ

10/86

Regulatory/Institutional

1. Prime Site Grant Avareded

2. Draft SCP to HQ for Final review TBD

3. Final SCP (camera-ready) to HQ - 4/87

4. Project Office input on EIS Implementation 1/87

Plan to HQ for review

*5. Working Draft Environmental Monitoring and 8/15/86
Mitigation Plan to HQ for review

•6. Complete and Sign CiC Agreement with State 11/28/86

7. Submit Licensing SXipport System (LSS) Document 12/8 6

Collection Procedure to HQ for approval

8. Implement Document Collection for LSS 3/87

9. EIS Scoping Complete TBD

Exploratory Shaft

♦1. Submit Draft Title II (Final) Design Report 4/87
Report received at HQ for review and
acceptance

*2. Sxibmit Draft ESF Design Requirements for TBD
Final Design to HQ for review and approval

3. Surface Facilities Bid Package issued 12/86

4. Mining Contractor Bid Package issued 2/87

5. SRP issues site specific In-situ Test TBD

Plan to the Public

1097

- 5 -

6. Procurenent of data acquisition •ystem for TBD
th« sit* initiatad

•7. start Site Preparation 7/87

8. Start Construction of Surface Facilities 7/87

•9. Final FY 1989 Project Validation Material to 3/13/87
HQ

10. Initiate Freeze Wall Formation TBD

Test Facilities

1. Issue Post Test Summary Report for Asse Brine 11/86

Migration

2. Issue Off-site Test Plan details TBD

Land Acquisition

1. Land Agent Agreement signed TBD

2. SRP submits Land Acquisition Plan to HQ TBD

3. SRP authorizes Land Acquisition TBD

4. Land access for ESF foundation borings TBD

5. Land access for site characterization activities TBD

6. Land access for EDBH TBD

Project Hanaqeaent

♦1. Submit FY 1987 Baseline Plan to HQ 10/86

•2. FY 89 Budget Submission/WPAS received at HQ 3/15/87

3. L.^J> Project Plan to HQ TBD

1098

Attachment

MSA Milestones - BWIP
through September 1987

Systems

*1. Draft Systems Engineering Management 8/15/86

Plan to HQ for review and approval

*2. Draft MGDS Requirements Document to HQ for 9/86
review and approval

*3. Draft MGDS Description Document to HQ for 9/86

review and approval

*4. Reference Data Bases for Waste Pac)cage, TBO

Repository and Site to HQ for review

5. Complete Performance Assessment of Repository, 5/87
Shaft Seals and Waste Package SCP Designs

Waste Package

*1. Draft Waste Package Subsystem Advanced TBD

Conceptual Design (ACD) Requirements
received at HQ for review and approval

*2. Waste Package Advanced Conceptual Design Report 3/87
received at HQ for review and acceptance

3. Waste Package Structural Design Engineering 9/86
Test Plan ( Study Plan for SCP) received
at HQ for information

*4. Final BWIP Report on Feasibility of Using 9/86

Copper as a Waste Package Material issued

•5. Report on Waste Package Postclosure Compliance 7/86
Strategy (Study Plan for SCP) to HQ for
review and approval

•6. Initiate Waste Package ACD 1/87

Headquarters controlled milestone, to be changed only under
signature of the Director, Repository Coordination Division.

1099

- 2 -

Sit«

1. Large-»cal« Hydraulic Stress (LHS) T«8t(«) (at 5/87

least one) completed

2. Site Selections for Additional Hydrologic 4/86

Monitoring Wells to HQ for approval

•3. Working Draft Socioeconomic Monitoring and 8/15/86
Mitigation Plan to HQ for review

4. Three-dimensional Stratigraphic and Structural 11/86

Model of the RRL documented and entered into
Engineering Release System

5. Complete Performance Assessment Conceptual Model 4/87

6. Issue Status Report - Geochemical Modeling to 5/87

HQ for information

7. Complete Grande Ronde LHS Test 9/87

8. Issue Status Report: Far Field Radionuclide 10/86

Sorption Characterization

Repository

1. Draft Repository Subsystem Advanced Conceptual TBD
Design (ACD) Requirements to HQ for review
and approval

•2. Initiate Repository ACD 1/87

3. Integrated Rock Mechanics Characterization 6/86

Plan (Study Plan for SCP) to HQ for information

*4. Repository Seal Subsystem Design Requirements TBD
to HQ for review

5. Repository Seal Conceptual Design initiated • 7/87

1100

- 3 -

*6. Draft SCP Conceptual Design Report to HQ 11/86

for review and acceptance

7. Preliminary Study of the Effect* of Uncertain 5/86

Geologic Data on Design of the Underground
Facility to HQ for information

8. Review of concepts developed by HEDL for 7/86

reaote/automated waste handling systems
initiated

9. Retrievability Compliance Strategy Plan to TBD

HQ for review

10. Rod Consolidation Study to HQ 11/86
♦11. Final FY 1989 Project Validation Material to HQ 3/13/87

Regulatory/Institutional

*1. Draft SCP to HQ for Final review 12/86

*2. Final SCJ> (camera-ready) to HQ 1/87

3. Project Office input on EIS Implementation 1/87

Plan to HQ

*4. Working Draft Environmental Monitoring and 8/15/86
Mitigation Plan to HQ for review

♦5. Complete and sign C&C Agreement with State 11/28/86
and Tribes

6. Submit Licensing Support System (LSS) Document 12/86

Collection Procedure to HQ for approval

7. Implement Document Collection for LSS 3/87

8. Issue SCP Progress Report 9/87

9. EIS Scoping Complete 6/87

Exploratory Shaft

_*1. Submit Draft ESF Design Requirements for Final TBD
Design to HQ for review and approval

♦2. Submit Draft Final Design Report to HQ for review 9/87
and acceptance

3. Complete Construction Readiness Review for First 3/87
Shaft (ES-1)

1101

- 4 -

*4. Start rir«t Shaft (ES-1) Construction 5/87

*5. Final FY 1989 Project Validation Material to HQ 3/13/87

Test Facilities

1. Issue Near Surface Test Facility Operating 9/86

Plan to HQ for inforaation

Project Har.aqenient
*1. Submit FY 87 Baseline Plan to HQ 10/86

2. Final BWIP Project Management Plan to HQ for TED

concurrence

3. Final BWIP Project Plan to HQ for approval TBD
*4. FY 89 Budget Submission/WPAS to HQ 3/15/87

1102

Attachaent

KSK Milestones - KNWSI Proj*»ct
through September 1987

SysteaB

•1. Draft Systeas Engineering Management Plan M108 8/1/86

to HQ for review and approval

•2. Draft MGDS Requirements Document to HQ for M120 8/86

review and approval

•3. Draft MGDS Description Document to HQ for M261 9/86

review and approval

4. Annual PASS Program Interaction-Letter Report M870 9/86

to HQ for information

5. Report on Studies of Coupled Processes R109 11/86

included in SCP to HQ for information

*6. Updated MGDS Requirements Document to HQ for M158 8/87
review and approval

7. Annual PASS Program Interaction-Letter Report P132 9/87
to HQ for information

*8. Reference Data Bases for Waste Package, - T3D

Repository and Site to HQ for review

Waste Package

*1. Draft Waste Package Subsystem Advanced Conceptual M013 9/1/36
Conceptual Design (ACD) Requirements to HQ
for review and approval

•2. Report on Long-term Waste Package Performance M260 1/87
Analysis of Conceptual Design to HQ for
information

•3. Final NNWSI Report on Feasibility of using M247 9/86

Copper as a Waste Package Material issued

4. Report on Systems Model for Waste Package M276 7/86

Performance Analysis to HQ for review

• Headquarters controlled milestone, to be changed only under
signature of the Director, Repository Coordination Division.

1103

- 2

M236

7/86

M257

3/86

7/86

M233

1/87

5. R«port on T«Bts of Candidat* ACD Ketal Barrier

Material* to HQ for review

6. Decision on Packing Material for Spent Waste

Package to HQ for review

•7. Report on Waste Package Postclosure Compliance
Strategy to HQ for review and approval

•8. Initiate Waste Package ACD

Site

1. Final Radiological Monitoring Plan to HQ for

information

2. Ccaplete Model of Chemical Coaposition of Yucca

Mountain groundwater - issue report

*3 . Working Draft Socioeconomic Monitoring and
Mitigation Plan to HQ for review

4. Report on Geochemical Simulation of Yucca Mountain M325

to HQ for information

5. Report on Evaluation of Natural Resources at Yucca M895

Mountain and Vicinity to HQ for information

6. Surficial Geologic Mapping completed

7. Sunaary Report on Regional Geophysical Investig-

ations to HQ for information

8. Report on Quaternary Climate of Yucca Mountain M366 10/88

to HQ for information

9. Begin Air Quality Monitoring

10. Begin Koisa Monitoring

11. Final Air Quality Monitoring Plan to HQ for

information

12. Complete Hydro Testing of Unsaturated Zone

13. Report on Completion of Trench Preparation at

Surface Facilities Site to HQ for information

M897

2/87

R360

9/89

P029

8/15/86

M325

7/86

M895

6/87

M899

5/87

M369

5/86

N345

9/87

R639

9/87

R327

5/87

P519

6/87

P509

3/87

P780

12/86

P790

5/87

R309

10/86

M335

7/87

R4a5

10/86

TBD

- TBD

1104

- 3 -

14. laius Map: final Gaologlc Map ot Yucca Mountain

15. Issue Intsria Report: Futurs Hydrologic Conditions P790

at Yucca Mountain

16. Issue Preliminary Report: Sorption Modeling

17. Issue SufflTTiary of 3-D Mineralogic Variation along

Transport Pathways

18. Issue Report: Controls on Conpositlon Variation

in Groundwaters at Yucca Mountain Areas

19. Reconi:aendation to Proceed with Deep, Regional

Seismic Survey to HQ for approval

20. Recommendation to Proceed with Southern Tracer

Experiment in the Saturated Zone to HQ for
approval

Repository

1. Letter Report: Feasibility Analysis on Horizontal

Waste Emplacement and Retrieval to HQ for review

2. Horizontal Waste Emplacement Equipment Development N406

Plan to HQ for review

«3. Draft Repository Subsystem ACD Requirements
Document to HQ for review and approval

4. Seals Materials Recomendation Report to
HQ for review

«. SCP Conceptual Design Report to HQ for review
and acceptance

6. Report on G-Tunnel Underground Facility Summary
to HQ for review

*t. Initiate Repository ACD

8. Report on Effects of Uncertain Geologic Data on

Design of Underground Facility to HQ for
information

9. Review of Concepts Developed by HEDL for Remote/ MS02 7/86

Automated Waste Handling Systems initiated

M295

5/86

N406

7/86

N433

10/86

P404

9/86

N432

9/15/86

M455

9/86

N430

1/87

N457

8/86

1105

- 4 -

10. Licensa Application Design A/E Candidatas N421 7/87

Selaction cooplatad

11. Fabrication conplated on Waste Emplacement P403 5/87

Development Prototype Boring Machine (DPBM)

12. Initiate Horizontal Drill Tests in G-Tunnal N603 9/87

(DPBM)

13. Retrievability Compliance Strategy Plan to HQ - TBD

for review

14. Rod Consolidation Study to HQ - 11/86

•15. Final FY 1989 Project Validation Material N118 3/13/87

to HQ

Regulatory/Institutional

•1. Draft SCP to HQ for Final review

•2. Final SCP (camera-ready) to HQ

3. Project Office input on EIS Implementation Plan
to HQ for review

«4. Working Draft Environmental Monitoring and P033 8/15/86

Mitigation Plan to HQ for review

•5. Complete and Sign CtC Agreement with State M795 . 11/28/86

6. Submit Licensing Support System (LSS) Document - 12/86

Collection Procedure to HQ for approval

7. Implement Document Collection for LSS - 3/87

8. Issue SCP Progress Report M947 9/87

9. EIS Scoping Complete - , TBD

Exploratory Shaft

1. Award Shaft and Mining Subcontract M022 \\ 3/87

•2. Submit Draft ESF Design Requirements for - \'tbD

Final Design to HQ for review and approval

M521

11/86

M522

12/86

M599

1/87

■-\^

1106

- 5 -

*3. Subait Draft ESF Final Design Report to
HQ for review and approval

•4. Start Site Preparation

5. Complete Construction of Surface Facilities

6. Complete ESF Construction Readiness Review

•7. Start First Shaft (ES-1) Construction

♦8. Final FY 1989 Project Validation Material
to HQ

TBD

M645
M646

12/1/86
5/87

R033

4/87

M652

5/S7

3/13/87

Test Facilities

1. Complete Proof-of-Concept Horizontal Boring
Machine Demonstration

H281

4/87

Project Management

1. Submit FY 1987 Baseline Plan to HQ

2< Final NNWSI Project Management Plan to HQ for
concurrence

3. Updated KNWSI Project Plan to HQ for approval

•4. FY 89 Budget Submisslon/WPAS to HQ

.5. .Implement Phase II Earned Value System

10/86

R44S

6/86

R810

TBD

M712

3/15/87

M725

10/86

1107

ATTACHMENT C

1108

■^^S^

THE SECRETARY OF ENERGY

June 27, 1986

Dear Governor Bangertar:

ThanJc you for your lattar of April 25, 1986,
concerning pr«-notif Ication of tha release date for the
final Environmental Asseseaents (£As) .

On May 27, 1986, I issued the EAi and nominated
five sites for detailed site characterization for the
Nation's first geologic repository for high-level
radioactive vaste. The activities at the Department of
Energy prior to this date did not permit me to identify
in advance, with any degree of accuracy, the exact day on
which this decision would be aade.

Under ideal circumstances, X would lilce to have given
you and your colleagues at least a two-week pre-notif ica-
tion of the release day. Hr. Ben Rusche, Director,
Office of Civilian Radioactive Waste Management, in an
April 15, 1986, letter to you did identify mid-May as our
best estimate.

Having made the decision to issue the EAs, I felt
it was in the public interest not to delay tha process
further. As you ]cnow, release of the final EAs had
already been substantially delayed to review over 20,000
public comments on tha draft documents and to allow
sufficient time for an independent review of the
decision-aiding methodology by the National Academy of
Sciences.

I regret any Inconvenience caused by your not having
an exact release data, and hope that you will understand
ay position.

Yours (truly,

lours /truiy,
^ John S. Harrington

Honorable Korman H. Bangerter

Governor of Dtah

Salt Lake City, Utah 84114

1109

ATTACHMENT D

1110

For your background infor:aation, Detlof von Winterfeldt, an
associate professor at the University of Southern California, is
not a member of the National Academy of Sciences' Board on
Radioactive Waste Management. As noted in his letter, he was
invited by the Board as a consultant to participate in the review
of DOE'S decision-aiding methodology. He was acting as an
individual in the review process. DOE disagrees with Professor
von winterfeldt positions on the analysis and decision process
that led to the recommendation of the three sites for
characterization.

nil

Detlof von Winterfeldt
26424 At±iena Ave.
Harbor City, Cfi 90710

August 19, 1986

Mr. Ben Rusche

Director,

Office of Civilian Radioactive Waste Management

U.S. Departir.ent of Einer^

1000 Independence Ave. , S.W.

Washington, D. C. 20585

Dear Mr. Rusche:

I very much appreciated talking to you about the analysis and decision process
that led to the recarjnendation of the Yucca Mountain, Hanford, and Deaf 3r,ith
sites for characterization. Our telephone conversation and my discussion
with Itn Isaacs here Ln Los Angeles last week made it clear that a serious
attanpt was made to balance the analysis results against non-analysis
considerations. Our discussions also allowed me to formulate my main concerns
more concisely.

First, the Reocmmendation Report (DOE-S-0048) does not represent the analysis
results reported in the MethodDloqy Report {DOE>-EW-0074) in a balanced way.
In fact, fran reading the RecaranerK^tion Report, it is hard to recognize that
the ancilysis arrived at the following firm and stable rank ordering of the
sites: Yucca Mountain, Richton Dane, Deaf anith, Davis Canyon, and Hanford.
In my opinion, the Recoranendation Report clearly fails to canmunicate the
content of the Methodology Report in its entirety.

Second, the value implications of reajnmending to characterize the Yucca
Mountain, Hanford and Deaf anith sites are inconsistent with the judgr-ents
made fcy your experts and staff during the analysis. Even extensive sensitivity
analyses on these value judgnents were not able to change the stable rank
ordering arrived at in the aralysis.

■Qiird, and this is a personal judgment, I found the value judgnents made
within the framework of the analysis very reasonable, while I thought that
those implied by the final decision were not. In particular, I did not find
it reasonable to select sites for characterization that oost billions of
dollars more than other sites and that have seeningly little advantages that
would justify the additioral costs.

Iliank you a<^in for the opportunity of discussing these issues with you and
your staff.

SiAoerely, r ^ ' ^ ] 9

Detlof von Wihterfeldt

1112

Detlof von Winterfeldt
26424 Athena Avenue
Harbor City, CA 90710

July 22, 1986"

Mr. Ben Rusche

Director,

Office of Civilian Radioactive Waste Management

U.S. Department of Energy

1000 Independence Ave., S.W.

Washington, D.C. 20585

Dear Mr. Rusche:

As you may recall, I participated in the National Academy of
Science's review of DOE's methodology for siting" the first
radioactive waste repository as a decision analyst consultant to
the Board of Radioactive Waste Management. I now have reviewed
the final documents "A multiattribute utility analysis of sites
nominated for characterization for the first radioactive-waste
repository - a decision aiding methodology" (DOE-RW-0074, in the
following referred to as "Methodology Report") and
•Recommendation by the Secretary of Energy of candidate sites for
the first radioactive-waste repository" (DCE-S-0048, in the
following referred to as "Recommendation Report"). I will
comment on these two documents solely as an individual decision
analyst.

In - brief, I believe that the conclusions drawn in the
Recommendation Report are based on selective and misleading
use of the analysis described in the Methodology Report. It is
extremely hard to find in the Methodology Report any support for
the selection of the specific set of three sites recommended for
characterization. Instead, I find a convincing analysis that
clearly rejects the Hanford site and, furthermore, supports the
selection of the Richton Dome site over the Deaf Smith site. The
way the Methodology Report was interpreted in the Recommendation
Report, in my opinion, comes very close to a misuse of an
otherwise excellent analysis.

The following detailed comments are provided in four sections.
First, I will describe the perspective of my comments and the
assumptions on which they are based. In the second section, I
will criticize the inclusion of the Hanford site as a candidate
for characterization. In the third section, I will criticize the
choice of the Deaf Smith site over the Richton Dome site. The
fourth section will summarize my comments and add some concluding
remarks. ^

003808

1113

f^f gp^ctjvt si. the commgnts. To put my detailed comments into
perspective, let me first state my opinion that the analysis
described in the Methodology Report is sound, thorough and state-
of-the-art. It arrives at a clear and stable rank ordering of
the five sites (Yucca Mountain, Richton Dome, Deaf Smith, Davis
Canyon, and Hanford, in that order). My argument is not based on
a criticism of that report, but rather on the conclusions drawn
from it. My arguments are also not based on a criticism of the
judgments by DOE experts and managers that went into the
multiattr ibute utility analysis. These judgments were made prior
to the knowledge of the results of the analysis and,
specifically, before the analysis based site rankings became
known. I have more confidence in these judgirients than In the
judgments applied in the Recommendation Report which were made
after the analysis results were known. My criticisms are based
mainly on the mismatch between the judgments made during the
analysis and those applied after the analysis.

I realize, of course, that the mul tiattribute utility analysis
described in the Methodology Report is only a decision aiding
tool, and that other judgments are necessary to select an
appropriate portfolio of sites. Two additional judgments are
important to make a portfolio decision: diversity of- geohydraulic
settings and diversity of rock types. According to the
Recommendation Report "Any combination of the three recommended
sites will,..., provide the maximum diversity in geohydraulic
settings." This consideration, therefore, should not influence
the selection of the three sites. Diversity of the host rock is
the remaining criterion not addressed in the Methodology Report
that could conceivably change the recommendation from those
suggested by the results reported in the Methodology Report. My
criticisms are not based on the use of the diversity judgments to
arrive at a final portfolio, but rather on the peculiarities of
the implied value judgments in this final choice.

Critlcisw 2l ihS. choice Q± tM Hanford site. The analysis
clearly identifies Hanford as the overall lose; among the five
sites. It is important to point out that the analysis led to
that conclusion based on the judgments of DOE experts and
managers. The fact that these judgments are expressed in
monetary units is incidental to the fact that Hanford is clearly
the worst of all sites. Any expression of the impacts of the
sites, even without further analysis, would lead to rejection of
Hanford as a reasonable candidate.

1114

There is no doubt that Hanford is the worst site in terms of
post-closure criteria. It is also the worst or equal to the worst
site on ten of the 14 pre-closure criteria. There appears to be
no reasonable set of weights for which Hanford would come out to
be a "pre-closure winner." The Recommendation Report proposes a
set of weights, however, by arguing to ignore repository and
transportation cost (a steep S2.710 Billion higher than the
second most expensive site, Davis Canyon). Aggregating over the
remaining 12 criteria, Hanford does indeed become a "winner" by
an equivalent amount of $12 Million over the second best site
(Yucca Mountain) and $158 Million over the worst site (Davis
Canyon) . The Recommendation Report uses this schem.e to point
to the pre-closure superiority of Hanford. However, it fails
to aclcnowledge that Hanford is still the worst or equal to worst
on all eight health and safety criteria. The only criteria
on which Hanford "shines" are the four having to do with
aesthetics, archaeological/historical/cultural, biological and
socioeconomic impacts.

In my opinion, the Hanford site, being the worst on the post-
closure criteria and the worst on all but four pre-closure
criteria comes close to being a dominated site that never should
be chosen, unless other criteria and/or a very peculiar set of
judgments are invoked. My interpretation of the inclusion of the
Hanford site In the set of the three finalists is that in DOE's
judgment the combined drawbaclcs of Hanford (worst post
closure radiological impacts, worst pre-closure health effects
and worst costs by at least $2,710 Billion) are outweighed by its
advantages in terms of aesthetics, archaeological/historical/,
cultural, biological, and socioeconomic benefits combined with
the increased diversity of adding another host roclc to the
portfolio.

Criticism q1 ih3. choice q± tii£ Deqf Smith sits fivej. tiie Richton
Pore site. The arguments leading to the inclusion of the Deaf
Smith site over the Richton Dome site also require a fair amount
of selective use of the analysis. There is little doubt that, in
terms of post-closure criteria, both sites are excellent and
virtually indistinguishable. On the pre-closure criteria the
Richton Dome site is better or equal to the Deaf Smith site on
eleven of the fourteen criteria. The only criteria on which the
Deaf Smith site is better are: public radiological fatalities
from the repository, biological impacts, and socioeconomic
Impacts. Richton Dome is better or equal to the Deaf Smith site
on seven of the eight pre-closure health criteria. It is true,
however, that on all criteria the two sites are very close,
except for transportation and repository costs. The com.bined
difference here is a significant $650 Million.

1115

Since both sites are salt sites, the task of choosing among them
cannot involve judgments of the diversity of the host rock, and
instead boils down to weighing the non-cost impacts against the
cost differential of $650 Million. By choosing the Deaf Sm.ith
site over the Richton Dome site, DOE essentially signals that the
very small advantages of the Deaf Smith site on one health
criterion and the biological and socioeconomic criteria outweigh
its disadvantages in the other seven health-criteria, the
archaeological/historical/cultural criterion and an additional
cost of $650 Million.

Conclusions. The logical implications of the judgments and
estimates made by DOE experts and managers themselves as reported
in the Methodology Report clearly argue for exclusion of the
Hanford site and for choosing the Richton Dome site over the Deaf
Smith site. The most important conclusion that I draw from the
Recommendation Report's inclusion of the Hanford and Deaf Smith
sites is that DOE is apparently willing to accept more health
effects and an additional cost of $3,360 Billion in return for
several minor advantages of the two sites. As a decision
analyst, I find these implications inconsistent with the
Methodology Report. As a concerned menber of the public and a
taxpayer, I find them irresponsible.

In conclusion, I would like to commend DOE for ah excellent
analysis, and for its thorough documentation of this analysis in
the Methodology Report, After the strong criticism following the
December 1984 publication of the s'ite evaluation and the
recommendation of Yucca Mountain, Deaf Smith and Hanford, DOE
implemented a rigorous approach that suggested a quite different
mix of sites. Unfortunately, it appears that DOE chose to ignore
the implications of its own analysis, and of its own experts' and
managers' opinions, and instead simply repeated the choice that
was made one and a half years ago.

Sincerely,

Detlof von -winterf eldt
Associate Professor,
Systems Science Department
University of Southern California

cc: Frank Parker

1116

ATTACHMENT E

1117

Department of Energy

Wuhmgton, DC 20565

JUL 2 5 1986

rran)c Press, Ph.D

President

National Academy of Sciences

2101 Constitution Ave. , N.W.

Washington, D.C. 20418

Dear Dr. Press:

On May 28, 1986, President Reagan approved the Departaent of
Energy (DOE) reconunendation of sites in Texas, Nevada, and
Washington to be characterized as part of the program to site the
Nation's first high-level radioactive waste repository. As you
are aware, the National Academy of Sciences (NAS) Board on
Radioactive Waste Management conducted an independent review of
the methodology used to aid the recommendation decision as well
as the application of that methodology. The suggestions and
conclusions of the Board in the review process proved to be of
significant value to the program and the general endorsement of
our use of the methodology provided added confidence in our
process.

With the President's approval of our recommendation, the nature
of first repository program activities will shift substantially
and now focus for the next several years on characterization of
the three sites to determine the final suitability and preference
of those candidate sites for repository development. Preliminary
discussions with Board members and staff have Identified signifi-
cant- benefits of continued Board oversight of activities during,
this next important site characterization phase in the repository
program. They have also identified the desirability to have the
Board and the Academy review the proper scope and content of
future Board involvement with particular emphasis given to site-
specific and comparative evaluations through the establishment of
suitably constituted panels of the Board.

DOE recognizes and endorses the need for the Academy to have
autonomy in formulating the nature of its participation. We '
believe that the recent discussions can form the basis for an
effective future Academy role. Given current activities such as-
development of site characterization plans and implementation of
the equality assurance program, timely Board participation will be

77-lOA 0-87-36

1118

- 2 -

Of Bubstantlal valu*. w* ar« pr«par«d to work with tha Academy
and it* Board In furthar rafinlng Ita rola, and loo)c forward to
ractivlng a poaltiva indication of continuing Academy involvement
and your viaws on thaa* ralationahipa.

Sincerely,

Ben C. RilScfta, Director —
Office of Civilian Radioactive
Waste Management

1119

NATIONAL RESEARCH COUNCIL

aiei cowrnrvnoM avimvi wajhimctow. o c »o*«

a cMAinMAM ir J S

August 14, 1986

C. Rusche

actor, Oifice of Civilian
adioactiv* Waste Management
artaent of Energy
1 Step GB-270
Kington, DC 20585

r Ben:

Your recent letter requesting assistance from the
ional Research Council in the site characterization phase
the repository program suggests continuation of what has
oee a substantial and effective interaction between the
earch Council and the Departaent of Znergy. These are

•ortant national issues of just the sort that the Research

.ncil was established to consider.

The National Research Council can and will provide the
•ice you seek. I have asked Dr. Peter Myers, Staff
•ector of our Board on Radioactive Waste Manageaent, to
.-k with your staff to propose next steps that will enable
i Board to respond positively to your request.

Yours sincerely,

Frank Press
Chairaan

C:42C8

re AKVl O^KMtl^ AMD OTXta OlAAXUAnOM.

1120

— Dnlted States Government Department of Energy

memorandum

'-'» OCT 2 0 JS35

mtn.r TO

•"**^ Comnitaents Status Report froa the Quarterly Meeting of States
and Indian Tribes Held in Portland, Oregon, August 13, 1986

Distribution

The following status report is provided for the Comnitaents 2, 5,
8, 11, 12, 13, and 14 froa the August 13, 1986, Portland, Oregon,
Quarterly Meeting. The other coaaitaents have been reported on.

COMMITMENT

KUMBER STATUS

2 Our current projections for release of

the design reguireaents documents are as
follows:

Waste Pac)caqe Repository

Basalt 12/86 2/87

Tuff 1/87 1/87

Salt 1/87 1/87

5 Ongoing.

8 Comaents have been received froa

Washington, Nevada, Utah, and
Mississippi, and the three Indian Tribes.
The Guidelines are being revised and will
be submitted for final review the first
part of Noveaber.

11 This has been done verbally and will be
part of continuing discussions with NAS.

12 The Odall transcript is not available
yet.

13 The meetings will be scheduled shortly.

14 A meeting was held September 11, 1986,
between Toa Isaacs, Don Vieth,

Terry Husseaan, Ron Halfmoon, and
Stephen Hart. Additional discussions are
needed on several unresolved issues. A
followup aeeting will be scheduled soon.

1121

Department of Energy

Washington. DC 20585

Mr. Kendall Hall, Chairman .., ,-

Board of Trustees

Umatilla Confederated Tribes

P. 0. Box 638

Pendleton, OR 97801

Dear Mr. Reuben:

I would like to take this opportunity to invite you and members of
your staff and support contractor to attend and participate in the
next HQ/OGR Auditor Training Course, scheduled for April 21 and 22,
1987.

As you know, auditor training was discussed during the Quality
Assurance Coordinating Group meeting held in Las Vegas, Nevada
on January 29, 1987. The course dates were selected to encourage
partication of the State and Tribal representatives in both the
training course and the next QACG Meeting which is scheduled
for April 23, 1987, at the Germantown, Maryland, DOE facility.

The Auditor Training Course, as well as the QACG Meeting, will
be held at the Germantown, Maryland, DOE facility located near
the intersection of 1-270 and State Road Kumber 118, approximately
18 miles northwest of downtown Washington, D.C. The classes will
start at 9:45 a.m. each day and adjourn at 3:45p.m. Classes will
be conducted in E-4 01 conference room. Because the DOE building
is a secure area, it is necessary to be badged and escorted. A
DOE escort will be provided in the Germantown North Building lobby
to escort attendees to the conference room prior to start of classes
each day.

The non-fee classroom lectures and working sessions will cover the
theory as well as the practice of auditing for geologic repository
programs. Course material to be covered includes: composition of a
quality/technical audit, elements of an audit system, attributes of
an auditor, basic steps in the conduct of an audit, regulatory
requirements, OGR QA requirements, development of audit checklists,
auditing for effectiveness, audit records, and audit close-out.
Upon successful completion of the Auditor Training Course, each
State and Tribal representative will be presented a "Certificate of
Completion." Attached is a list of lodgings in the area that is
available. We ask that you make your own lodging arrangements. If

1122

you plan to attend the auditor training course, the QACG Meetir.c, or
both, please contact Karl Soxaer (232-5S6-1639) so that arrar.rer.er.ts
can be trade for your badge and escort. We look forward to seeir.a
you in April and appreciate your interest in our Program.

Sincerely,

Carl Newton, Quality Assurance
Manager, Office of Geologic
Repositories, OCRWM

1123

Distribution

Mr. J. Herman Reuben, Chairman
Nez' Perce Tribal Executive Coitunittee
Box 305, Main Street
Lapwai, ID 83540

Mr. Kendall Hall, Chairman
Board of Trustees
Umatilla Confederated Tribes
P. 0. Box 63 8
Pendleton, OR 97801

Mr. Melvin R. Sampson, Chairman
Yakima Tribal Council
Yakima Indian Nation
p. 0. Box 151
Toppenish, WA 93948

Mr. Terry Husseman

Program Director

Office of High-Level Nuclear

Waste Management
Washington State Department

of Ecology, MS PV-11
Olympia, WA 98504

Mr. Max S. Power

Washington State Institute for

Public Policy
Science and Technology Project
The Evergreen State College
4111 Seminar Building TA-00
Olympia, WA 98505

Mr. Steve Frishman, Director
Nuclear Waste Program Office
Office of the Governor
201 E. I4th Streer, Room 205
Austin, TX 7 8711

1124

Mr. Patrick Spurgin, Director

High-Level Nuclear Waste Office

3 55 West North Temple

Suite 330

Salt Lake City, Utah 84180-1203

Mr. Robert Loux, Jr.

Director

Nuclear Waste Project Office

Office of the Governor

Capitol Complex

Carson City, NV 89710

Mr. Hall Bohlinger

Assistant Administator Nuclear

Energy Division
P. 0. Box 14690
Baton Rouge, LA 7 0898

Mr. John W. Green, Jr.
Executive Director
Department of Energy &

Transportation
214 Watkins Building
510 George Street
Jackson, MS 39202

Ms. Susan Zimmerman, Geologist
Nuclear Waste Program Office
Office of the Governor
P. 0. Box 12428
Austin, TX 78711

Mr. James Reed

Advisory Committee on Institutional

Government Relations
P. 0. Box 13206
Austin, TX 78711

Ms. Cheryl 'R-^nYcn

National Conferer:ce of State Legislatures

1050 17th Street

Suite 2100

Denver, CD 80265

1125

Mr. Carl Johnson

Nevada Nuclear Waste Storage

Investigation
State of Nevada
Capitol Complex
Carson City, NV 89710

Mr. Don Provost .,,^^«

Ofc. of High Level Nuclear Waste

Management
Department of Ecology
Mail Stop P.V. -11
5820 Pacific Avenue
Lacey, WA 98503

Mr. Stephen S. Hart
council of Energy Resource Tribes
1580 Logan Street, Suite 400
Denver, CO 80203

Mr. Hal Aronson ' ■■" - ^
Nuclear Waste Program
Yakima Indian Nation
5041 West Fair Avenue
Littleton, CO 80123

Mr. Robert Mooney

State of Washington

Dept. of Social & Health Services

Office of Radiation Protection

MS LE-13

Olympia, WA 98504

Mr. William Burke

Nuclear Waste Project Director

Umatilla Confederated Tribes

P. 0. Box 638

Pendleton, OR 97801

Mr. Ronald T. Half moon, Manager
Nuclear Waste Policy Act Program
Nez Perce Indian Tribe
p. 0. Box 3 05
Lacwai, ID 83540

1126

Dennis Bechtel, Planning Coordinator

Clark County, Nevada

225 Bridger Street

Las Vegas, Nevada 89155

Robert Palm

Clark County, Nevada

225 Bridger Street

Las Vegas, Nevada 89155

Russel Jim

Yakima Tribal Council
Yakima Indian Nation
P.O. Box 151
Toppenish, WA 98948

Bim Oliver

3 55 W. North Temple

#3 Triad Center, Suite 300

Salt Lake City, Utah 84180-1203

PC Code: QACGLIST

1127

United States Government

Department of Energy

memorandum

'^'^ FEB 1 1 1367

(WPIYTO
ATTN OF; RW-223

suajicT: Concurrence on Grant Award

vrifj

.1$

e i-:-i: -r.nf.

Ttt John J. Mahoney, Chief

Acquisition and Assistance Operations Branch, CH

Attached is Headquarter 's concurrence on the grant award to the
Penobscot Indian Nation.

Please contact Allen Benson at FTS 896-1116 if you have any
questions.

itephenuH. Kale
Associate Director for

Geologic Repositories
'office of Civilian Radioactive

Waste Management

Attachment

cc: Sally Mann

1128

United States Government

memorandum

Department of Energy

Mil. pebcuary 9, 1987
Armor-. RW-223

Notice of Concurrence Action

TO John J. Mahsney, Chief

Acquisition and Assistance Operations Branch

REVIEW:

Draft award documents for proposed grant, number DE-PS02-86QU.0268 . A002

in the amount of $ 15,889. , from the State/Tribe Penobscot

, have been received by the Office

Indian tlation

of Geologic Repositories.

ACTION;

XXX CONCUR

NONCONCUR

REVIEW-SCHEDULE BELOW

COMMENTS:

Stef

As/sbciate Director for

[Geologic Repositories
Office of Civilian Radioactive

Waste Management

1129

United States Government Department of Energy

memorandum

oAie FEB 2 4 S87

BEW.TTO RW-24

ATTXOf

suttJ€CT pj-oject Review of OGR QACG Charter . . . : r .)

TO J. Neff , SRPO ....

D. Vieth, WMPO

J. Antonnen, BWID

S. Mann, RTTD

OGR Procedure 1.0 required revision of all Coordinating Group
Charters. Attached is a draft of the revised charters for the
Quality Assurance Coordinating Group and the Quality Assurance Working
Group on Waste Acceptance. We would appreciate your review and
comaents on the Charter by March 15, 1987.

Also attached is a copy of OGR Procedure 1.0. In cooaenting on these
Charters please do not furnish coaments whose incorporation would
conflict with the requirements of OGR Procedure 1.0.

0^'

James P. Knight, Director

Siting, Licensing fc Quality Assurance

Division, Office of Civilian Radioactive
Waste Management

Attachments

1130

QUALITY ASSURANCE COORDINATING GROUP
CHARTER

SCOPE

A Quality Assura-ic Coordinating Group (QACG) is established within the
Office of Geologic Repositories (OCR) to provide coordination in the planning,
developme'nt and implementation of quality assurance (QA) programs of HQ-OGR,
project offices and their major participating contractors. The QACG is to
ensure that uniform QA requirements are specified at the projects and that
measures for meeting these QA requirements are applied in a consistent manner
by the participating organizations.

PURPOSES

The QACG has the following purposes:
I. To provide a forum for:

a. exchanging information between projects and with HQ-OGR to
insure a clear understanding of problems and issues related
to quality, status and progress of project specific quality
assurance programs, and plans for resolution of problems;

b. identifying problems affecting quality that is generic among
the QA organizations within the repository program;

c. joint discussion of interface issues with other elements of
the repository program (e.g., licensing, design, SOP
preparation, etc.);

1131

d. outside consultants or experts to brief the members on
technical Issues of common Interest, and

e. Consultation and Cooperation (CiC) discussions with
representatives of the NRC and affected States and Indian
Tribes.

2. To assure a coordinated approach to QA and in the development of
QA plans and QA admlaistratlve procedures among HQ-OGR and t>ie
projects.

3. To develop a unified approach within OCR towards meeting QA
requirements mandated by NRC.

4. To Identify additional QA requirements that need to be specified
for the repository program and to develop appropriate QA
supplements for this purpose.

ORGANIZATION

The OCR QA Manager will be the QACG Chairperson. The DOE-HQ
contractor's (WESTON) QA Manager will serve as QACG Secretary. The QACG
Chairperson and Secretary are voting members. Other voting members are the QA
Managers of Project Offices and their counterparts from the project contractor
organizations. The QA Managers of OCRWH, OSTS. DOE Operations Offices
overvlewlng the Project Offices and of other major participating contractors will
be non-voting members.

-2-

1132

The QACG Chairperson may invite other QA Managers involved in the
repository program to participate in the meetings and other activities of the

QACG as non-voting members.

The Chairperson may organize Task Forces or Working Groups to undertake
specific assignments identified by Che QACG. These Task Forces or Working
Groups will be organized from among the voting and non-voting members and will
report to the QACG Chairperson. The QACG Chairperson will report to the OGR
Associate Director regarding QACG activities and other matters affecting the
QACG.

MEMBERSHIP

Tne QACG membership will be

OGR QA Manager, OGR

QA Manager, WESTON

QA Manager, BWIP

QA Manager, WMPO

QA Manager, SRPO

QA Manager, RTTD

QA Manager, RHO

QA Manager, SAIC

QA Manager, ONWI

QA Manager, OWTD

QA Manager, DOE-NV

QA Manager, DOE-CH

QA Manager. OSTS

QA Manager, OCRWM

as follows:
Chairperson
Secretary
Voting Member
Voting Member
Voting Member
Voting Member
Voting Member
Voting Member
Voting Member
Voting Member •
Non -voting Member
Non-voting Member
Non-voting Member
Non-voting Member

1133

The OGR Director of Siting, Licensing and Quality Assurance and
involved DOE Project Managers, upon recommendation of their respective Project
QA Managers, may reconmend to CXJR any QA personnel in their organizational
units and/or QA Managers of major contractors to become non-voting members of
the QACG. The QACG Secretary will maintain an updated list of the QACG
membership.

RESPONSIBILITIES

QACG Chairperson

The QACG Chairperson has the following duties and responsibilities:

a. Plan, schedule, call, direct and manage to completion the QACG
meetings.

b. Prepare agenda for each meeting and distribute copies to QACG
members, chairs of other coordinating groups, NRC, affected
States and Indian Tribes.

c. Prepare and distribute sunimary and minutes of each meeting
completed .

d. Invite attendance of person( s) needed in support of meeting
agenda item( s) .

e. Organize task forces or working groups, as necessary.

f. Inform QACG members on current OGR policy relative to State and
Tribal involvement in coordinating group meetings, and to comply
with this policy.

g. Report to the OGR Associate Director on QACG accivicies and
related matters.

-4-

1134

QACG Secretary

The duties and responsibilities of the Secretary include the following:

a. Prepare minutes and summary of QACG meetings. Reproduce and
distribute copies, as directed by the Chairperson.

b. Solicit meeting discussion items from the members.

c. Maintain an updated list of the QACG membership.

Members

Each member is responsible for the following:

a. Submitting status reports on his/her organization's QA activities.

b. Informing the Chairperson of any quality problem, issue or
information that may be of interest to the QACG.

c. Recommend to the Chairperson itera(s) for discussion in coming

QACG meetings.

OPERATING PROCEDURES

1. The QACG will hold regular meetings on a quarterly basis. The dates
and locations of these meetings will be determined in advance by the
QACG. In these meetings, the project QA managers are to submit
progress and status reports of QA activities of their projects.

2. Additional meetings may be called by the Chairperson, upon his/her
initiative or recommendation of a voting member. The meeting will be
scheduled and announced to~ the QACG members and, as applicable, to
outside parties.

-5-

1135

3. Other discussion Iceas will b« Identified by the Chairperson and
assigned, as necessary, to the oembers or resource persons for their
presentation. Documents for discussion during the meeting are to be
prepared and reviewed In accordance with Procedure OCR l.U. ■,

4. Decisions on Issues/ problems taken up in the meeting will be by
consensus among the voting members. If consensus on the outcome cannot
be achieved, the Chairperson will take appropriate action in accordance
with Procedure OCR l.U.

5. The outcome of each meeting will be summarized by the Chairperson
before adjournment. The summary will be prepared in wilting for the
official record and will be signed by the Chairperson and the QA
Managers of the projects. The summary will contain agreements reached,
decisions made, issues resolved, as applicable, and will Include action
items along with assignments for each such action item. The QACG
Secretary will include this meeting summary in the minutes of the
meeting.

4. Any guidance or direction by the QACC will constitute a proposal,
subject to implementation in accordance with OCRWM management
procedures, i.e.

o Technical, schedule, and cost impact. Including Impacts across
the System, will be evaluated and change procedures followed as
applicable.

-6-

1136

o Direction and guidance within existing scope, budget, and
schedule Is approved by the Siting, Licensing and Quality
Assurance Division Director and issued to the Project Managers.

o Direction and guidance representing changes in scope, budget, or
schedule is approved by the OGR Associate Director and issued t;o.
the Project Managers.

When specific tasks are to be accomplished, the Chairperson may create,
on an ad-hoc basis, task forces or working groups for this purpose.
The composition of the task force or working group will be determined
by the QACG Chairperson, in consultation with the voting members.

PRODUCTS

The summary and minutes of each meeting will be maintained as
non-permanent records in the files of the OGR QA ManaRer.

Reports of task forces or working groups will be submitted to the QACG
Chairperson and maintained as non-permanent records in the files of the
OGR QA Manager.

REVISED 11/10/86

1137

DRAFT CHARTER FOR THE ' ■>■'•.: ■'■'<

QUALITY ASSURANCE WORK [NO CROUP ON
WASTE ACCfcPIA.VCf:

I. SCOPE

The Quality Assurance Working Group on WASte Accep'.ai.cfe (Q^VC-WA) will
eonvene as necessary to discuss issues pertir.o.it to quality assurance in order

to:

A. foster consistency between OCR (Office of Geologic Rei"^^ l tor ies ) and
the Waste Producers (West Valley Dt.Tionstrat ion Proj<-'.t (WVUP) and
Defense Waste Processing Facility (DUPF)) in the dfcv^l opn-snt of
quality assurance (QA) requirements to be apfl'^d to V,j:.-;-.e Acceptance
Process activities; - ,

B. develop a unified approach or methods for meeting the QA requiren-.^nts
mandated by the NRC or Federal Regulations; and

C. foster consistency in the quality assurance programs developed for
Waste Acceptance Process activities.

II. PyR.POSE

The QAWC-WA will use OCR and waste producer exp-irtise and experience to:

A. develop a uniform set of Qu^^ity Ass-srance Progra.-n res_i re:TH:-:>ts to be
applied by OCR to the Waste ProJiccra ' Waste Accepts.-- Process

act ivit ies ;

B. identify QA issues fron- both the Projects' and the W=^te Producers'
perspective and develop acceptablc/aj. ; ropr iate appr^^ches for
resolving them;

C. provide a mechanism for inforr..^-.'. ic. iu'.^ r>.h£n5-. betwc;:i participants;

D. provide a forum where interface issu*? can be discussed in a
coordinated manner and be resolved by the- QA'aG-WA; and

E. provide for the use of outside experts to brief the QA'«.C-WA on common
technical issues. - -. . _

III. ORGANIZATION' AND MEMBERSHIP

The QAWG-WA is organized under and is responsible to the L'.S. Department
of Energy Office of Geologic Repositories (DOE-OCR) Quality Assurance
Coordination Croup (QACG). The QAWG-WA is responsible for coordinating its
activities with Defense Programs (DP) and Nuclear Energy (\E) as shown in
Figure I.

OR/.FT -1-

1138

pROC£OCItS NO.:
MCVXSXOM NO.:

OCR 1.0

DATE: B/8/86
PACE 6 o£ 6

EXHIBIT 1

LISTINC OF EXISTING OCR COORDINATING CROUPS
AND THEIR SUBORDINATE WORKING CROUPS

OCR GROUP

CHAIRPERSON STATU5

1. Site Characteriiatlon Coordinating Croup

D. Alexander &Ea(iu 2^^

Ceoscicnces Coordinating Croup
(AdHoc groups to be eatablished)

A. Jelacic

3. Repository Coordinating Croup

M. Frei

4. Haste Package Coordinating Croup

A. Berusch

a. Spent Fuel Worlclng Croup

Ivj. At>iuWlrr\

Perfomance Assessment Coordinating Croup
o-.Pyedo6oreg.i3k.AiSsessmerr| WoKtcingG»-oop

D. Alexandez

T". Licensing Coordinating Croup

c. Heaa

Newton

7. Quality Assurance Coordinating Croup --

Ti Instltutional/Socioeconoinic Coordinating Group B. Gale

Sfcix

OoK.

Q±

O^'^

apAo\/eS.V

a. Financial Assistance Committee

b. Socioeconomics Comaittr* —

c. Outreach Committee

cJvnii^

9. Project Management Coordinating Croup

R. Blaney

Of>e^

10. Environmental Coordinating Croup

J. Parker

a. Environmental Regulatory Compliance Horkln<

T^.VHeiAUi

b. Eir%v\voi^m»\Voi Pltm«»»\3^0»'kii^^GrtX)f> C.SUorffNQ.

n dxi»-riwji

1139

PROCEDURE NO . :
REVISION NO. :

OCR 1.0

DATE: B/8/86
PAGE 6 Of 6_

EXHIBIT 1

LISTING OF EXISTING OGR COORDINATING GROUPS
AND THEIR SUBORDINATE WORKING GROUPS

OGR GROUP

CHAIRPERSON STA"!" j5

1. Site Characterization Coordinating Group

D. Alexander

2. Geosciences Coordinating Group
(AdHoc groups to be established)

A. Jelacic

3. Repository Coordinating Group

M. Frei

4 . Waste Package Coordinating Group

A. Berusch

a. Spent Fuel Working Group

NJ. AbnoloQno

5. Performance Assessment Coordinating Group D. Alexander

"g"; Licensing Coordinating Group CT~Heaa~

Quality Assurance Coordinating Group C. Newton

a. OoaUWAsSuroAtc VJo^t\\A^G«^vjp

Institutional/Socioeconomic Coordinating Group B. Gale

. Financial Assistance Committee] R>^io^Q^i;:\^vtiJ
. Socioeconomics Committee lpa*4s of 375C&. G«xu/te,^

[nor piat^weg

Outreach Committee

9. Project Management Coordinating Group

R. Blaney

10. Environmental Coordinating Group

Parker

Environmental Regulatory Compliance WorJcina Group

t>. Envv<o»\we*\\ni PloyNVMA^Wofkii^Groof c.SV\cxnr\aL

1140

r^AM

United States Government

Department of Energy

memorandum

OATt. FEB 2 C 1987

KinYTO

ATTN Of RW-2 2 3

iutjicT: Coordinating Group Meetings

J. Parker, RW-241

C. Newton, RW-24
E. Wilmot, RW-33

A. Jelacic, RW-23
J. Knight, RW-24

N. Eisenberg, RW-232

R. Blaney, RW-222

B. Danker, RW-23

D. Alexander, RW-232
A. Berusch, RW-231

In a January 15, 1987, letter, Steve Kale notified the States and
Indian Tribes of DOE ' s decision to open all OCRWM coordinating
groups to State/Tribal participation.

At the February 12, 1987, Spokane Quarterly Meeting among DOE and
the States and Indian Tribes, a commitment was made that we would
prepare a schedule for all coordinating group meetings for the
coming year.

In order to begin preparation of this schedule and to discuss the
best procedures for State/Tribal participation, I would like to
meet with you on Friday, February 27, 1987, at 2:00 p.m. in
Room GH027.

Barry G. Gale, Chief

Economic and Intergovernmental

Analysis Branch
Office of Civilian Radioactive

Waste Management

S. Kale, RW-20

T. Isaacs, RW-22

J. Bresee, RW-22

R. Stein, RW-23

L. Barrett, RW-3 3

G. Shaw, Weston

L. Stevenson, Weston

1141

United States Government Department of Energy

memorandum

OATE.

FEB 2 ■ '9.97

REPLY TO
ATTN OF RW-2 2 3

s-BjECT coinmitments from Spokane, Washington, Quarterly Meeting

T. Isaacs, RW-22

ro s. Rousso, RW-10

R. Stein, RW-23

J. Knight, RW-24

L. Barrett, RW-32

R. Gale, RW-40

J. Anttonen, BWI?

J. Neff, SRPO

D. Vieth, NNWSI

A. Benson, RW-2 2 3

C. Peabody, RW-223

A-tached are the comnitments from the February 12, 1987,
Spokane, Washington, Quarterly Meeting of States and Indian
Tribes, along with the person responsible for each commitment.

Please provide r.e the status of these commitments as soon as
they are available. When the meeting highlights are sent to
those who attended the Quarterly Meeting, I would like to include
the status of a.-.y cor.pleced commitments.

If you have any questions, I can be reached on 536-8320 or
FTS 396-3320. Thank you for your assistance, noc only on these
commitments but for your help with the meeting in Spokane.
I believe it was a very successful meeting.

Judy Leah^

Economic (^nd Intergovernmental

Analysis Branch
Office of Civilian Radioactive

Waste Management

Att

:achmi

ent

cc;

; S.

B.
J.
B.

Kale, RW
Gale, RW
Bresee,
Mussler,

-20
-223

RW-2 2 3
GC-11

77_inzi n _ «7 - •^y

1142

SPOKANE QUARTERLY MEETING COMMIT?IENTS

Responsibility

T. Isaacs

C. Peabody

Spokane Contmitment

DOE will inform the States and Indian Tribes of steps to
ensure opportunities for meaningful participation of the
States and Indian Tribes in the DOE/NAS technical meetings.

DOE will develop a proposal for a one-year calendar of
coordinating group meetings and send it to the Staces and
Indian Tribes for comment.

Rousso 3. DOE will send a copy of the FY 88 budget request to the
States and Indian Tribes.

Ant tonen

3WI? will meet with the State of Washington and the Indian
Tribes to discuss the study on the diameter of t^o
exploratory shaft that is reflected in the Mission Plan
Amendment.

R. Gale

J. Knight
R. Stein

DOE is available to meet with the States and Indian Tribes
to discuss the draft Mission Plan Amendirent before the
April 3 deadline for comments.

At the DOE/NRC Interagency Coordinating Committee meeting,
DOE will discuss with the States and Indian Tribes the LSS
and the negotiated rulemaking, pending the S. Kale
conversation with procurement officials.
(Also, tentatively at the ISCG)

J. Ant tonen

3WIP will meet during the week of February 17-20 with the
State of Washington and the Indian Tribes to address
technical scoping and how full-year funding can be awarded
in an exoeditious manner.

J. Anttonen 8. 3WIP will provide to the State of Washington and the

Indian Tribes the exact date for closure on their grants
as soon as possible after the meeting referenced above.

J. Anttonen
J. Neff
D. Vieth

9. Each Project Office will continue to work with the States
and Indian Tribes to come to agreement on full-year grants.

A. Benson 10. DOE will put on the ISCG agenda a discussion of grant
problems and possible approaches to resolve problems.

J. Knight 11. DOE/HQ and 3WIP will contact the State of Washington and
J. Anttonen the Indian Tribes to discuss and resolve quality assurance

issues (SCP).

(Also, tentatively at the ISCG)

* Text in parentheses is HQ addition to comraitnient after the meeting.

Draft 225

2/19/87

1143

R. Stein 12. DOE will provide a description at the ISCG of the format
of SCP reference documents and of the locations where the
documents will be provided, and DOE will provide all
reference documents at Che same time the SCFs are released.

D. Vieth 13. NNWSI will provide the State of Nevada with letters

regarding participation in the stop work orders, and will
provide a briefing at the State's request.

L. Barrett 1^. DOE will determine whether there are any studies (ongoing
J. Neff or planned) about barge transport to site-specific

locations within Te.xas.

J. Anttonen 15. DOE/HQ and the Project Offices will:

J. Neff a) continue to work on near-term funding issues,

D. Vieth identify any recommendations for changes, and report

A. Benson at the next ISCG meeting; and

b) work on the near-term needs for urgent action to
release funds.

(Progress report at ISCG)

C. Peabody 16. States and Indian Tribes will make recommendations on how
DOE should publicize quarterly meetings.

J. Leahy 17. DOE will poll the States and Indian Tribes on the proposal
to hold the ne.xt quarterly meeting in Las Vegas and on the
date for that meeting.

* Text in parentheses is HQ addition to commitment after the meeting.

Draft 225 2 2/19/87

1144

QUESTIONS FROM SENATOR ADAMS

Question 3:

Last year the Congress, in adopting the Continuing
Resolution, Instructed the Department to make more
of an effort to work cooperatively with the States
and Indian Tribes. Would you please provide for
the record any instruction, policy memoranda or
guidelines to Office of Civilian Radioactive Waste
Management personnel or offices to implement this
directive.

Answer;

At the November 20, 1986, meeting held with the
States and Indian Tribes to discuss the
consultation and cooperation process, it was
agreed to work together to better define the C&C
process. The Draft Mission Plan Amendment
identifies a number of new C&C initiatives and
provides direction to DOE staff.

Management and staff at both Headquarters and in
the field regularly meet to exchange views,
guidance, and direction aimed at enhancing our
working relationships with the States and Indian
Tribes. Attached are information and guidance
provided to staff in connection with recent ISCG
and Quarterly meetings with States and Indian
Tribes.

1145

QUESTION 4:

ANSWER:

QUESTIONS FROM SENATOR ADAMS

Plaasa describe what design changes the emplacement
of consolidated spent fuel, as processed by the
proposed Monitored Retrievable Storage, must be
made In the repository designs for the three
candidate sites. Please provide the status of the
specific redesign efforts to incorporate those
changes.

At this time, the Offict of Geologic Repositories

is continuing to develop repository designs on the

basis of the Authorized System. No repository

redesign efforts for the Monitored Retrievable

Storage (MRS) system are currenly being performed.

Design studies were conducted and completed in 1985

to assess the impacts of an integral MRS on the

repository designs and costs. The design studies

indicated that the repository surface facility

design in the Authorized System could be simplified

if an MRS were part of the disposal system. There

is no significant change in the design or operation

of the underground support portion of the surface

facilities.

1146

QUESTIONS FROM SENATOR ADAMS

QUESTION 5: Please provide the Department's current estimate ot
the volume ot high-level defense waste which is
subject to the President's decision to commingle
defense and commercial high-level waste in the same
repository system pursuant to Sec. 8 ot the Nuclear
Waste Policy Act by originating facility. Please
identify which portion ot these wastes the Depart-
ment now anticipates will be emplaced and on what
schedule.

ANSWER: The Department projects that by the year 2020 the

Defense High Level Waste (DHLW) inventory will total

3
approximately 379x10 cubic meters.

(Reference: "Spent Fuel and Radioactive Waste

Inventories, Projections and Characteristics,"

report number DOE/RW-006, Rev 2 published October

1986) . This inventory includes waste at Hanford for

which no decision has been made regarding disposal

techniques. For planning purposes, the Department

is using 16,000 canisters ot DHLW (FRN-Vol 51,

p43566, Dec. 2, 1986). This is shown in the January

1987 Draft Mission Plan Amendment as 8,000 MTU based

on the assumption that each canister contains 0.5

MTU. Additionally 640 metric tons (320 canisters)

ot high-level waste are projected to be emplaced in

the repository system from the West Valley

Demonstration Project.

Shown in the attached table is the proposed waste
acceptance schedule as it appears in the Draft
Mission Plan Amendment {DOE/RW-0128, January 1987).

1147

-2-

ANSWER 5: (Cont'd)

This table indicates the Department's current
schedule to emplace DHLW, It should be recognized
that 8000 MTU has been chosen by the Department as a
nominal target level strictly for planning purposes.
This estimate contains substantial uncertainty due
to such factors as the level ot production,
potential construction of additional defense waste
processing capacity, waste consolidation procedures,
and the eventual disposition ot defense waste now
stored at Hanford, Washington.

1148

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1149

QUESTIONS FROM SENATOR ADAMS

QUESTION 6: Please provide the schedule for payments to the Nuclear
Waste Fund for the disposal ot the defense wastes
identified in Question 5 and the rationale for that
schedule.

ANSWER: The defense high-level waste (DHLW) disposal fee payment

schedule has not yet been established. When established,

it will provide for payments that are sufficient

to cover the estimated cost ot DHLW disposal. The

cost ot DHLW disposal will be reviewed annually as

part ot the regular fee adequacy analyses. On

December 2, 1986 the Department published a Notice of

Inquiry requesting public comment on alternative methods

for determining total DHLW disposal fees. The deadline

for receipt ot public comments was February 2, 1987.

Currently, the comments are being reviewed and a. final

notice of fee determination methodology is expected to

be published by mid-year. Subsequently, an

agreement will be executed between the Department's

Office of Civilian Radioactive Waste Management

" ■" and Office ot Defense Programs that will include an

agreement on the amounts to be requested annually in the

Department's budget. The actual amounts to be paid

annually into the Nuclear Waste Fund will be subject to

the regular Congressional appropriations process.

1150

QOESTIOMS FROM SENATOR ADAMS

QUESTION 7: Please describe the status ot the stop work orders
issued in May of 1986 to contractors to the Basalt
Waste Isolation Project, the issues and factors that
resulted in their issuance, the process for
resolving the issues and factors, and the schedule
for recommencing investigative activities.

ANSWER: The Stop Work Order was issued only to the principal

contractor serving the Basalt Waste Isolation

Project in early 1986. DOE audits were performed to

determine the status ot the contractor's upgrading

ot technical and management controls and procedures

and the readiness for the transition to the site

characterization phase in the event that the basalt

site was selected for characterization. DOE

concluded that the technical and management controls

and procedures had not attained the levels

satisfying Nuclear Regulatory Commission

requirements for establishing a licensing basis.

Nuclear Waste Policy Act requirements, and DOE

requirements for a major project acquisition.

Consequently, the Stop Work Order was issued to stop

a substantial part, but not all, ot the work in

progress at this site. A detailed process was

established for preparing, reviewing, and approving

controls and procedures and for training all project

personnel in their implementation and enforcement.

1151

- 2 -
ANSWER 7: (Cont'd)

Work is being restarted on an activity-by-activity
basis when DOE becomes convinced that all applicable
quality assurance requirements are satisfied for
each activity. Completion ot this process is
targeted for mid-1987.

1152

QUESTIONS FROM SENATOR ADAMS

QUESTION 8: Please describe the timetable for transfer of

contractor responsibility between Rockwell Hanford
and Westinghouse as it relates to both prime
contractor and Office of Civilian Radioactive Waste
Management responsibilities. Please provide a
description of personnel changes applicable to these
two responsibilities to the extent now known.

ANSWER: The transfer of responsibility from Rockwell Hanford

to Westinghouse originally was scheduled to occur on

October 1, 1987. This schedule has been accelerated

with transfer of contractual responsibility got

Office of Civilian Radioactive Waste Management

supported work being targeted for the end of July

1987. The relative responsibilities of the

contractor and of the DOE project office, who

manages the contracted effort at Hanford, will be

unchanged by the transfer. Most of the Rockwell

staff will transfer to Westinghouse with no loss of

continuity and momentum in the technical activity.

Changes will occur at the management level as the

Westinghouse management team is being installed,

and, although vital to program success, involves

only a relatively small group of people.

1153

QUESTIONS FROM SENATOR ADAMS

QUESTION 9: During the hearing on February 6, 1987, you and
Senator Adams discussed potential problems with
nuclear waste transport casks and the Department's
testing program. Please provide a description and
inventory ot the tests that have been conducted to
date by the Department or its contractors of
nuclear waste and spent fuel shipping casks and the
results ot those tests.

ANSWER:

The Department ot Energy and its predecessor
agencies (the Atomic Energy Commission and the
Energy Research and Development Administration)
have conducted many tests in support ot cask
development and licensing. A few (by no means all
inclusive) ot the more recent nuclear waste and
spent fuel shipping cask tests are listed:

Cask

DHLW

Scale Test Description & Results

1/2 Defense High Level Waste

(DHLW) cask. SNL conducted

drop and puncture tests as

follows:

Test 1. 30-ft (9-m) Bottom

End Drop.

Test 2. 30-ft (9-m)

Closure End Drop (-20oC)

Test 3. Gas Sample Port

Puncture (lOoC)

Test 4. 30-ft (9-m) Slide

Drop #1 (lOoC)

Test 5. Closure End Center

Puncture -

Test 6. 30-ft (9-m)

Center-of-Gravity Over

Bottom Corner Drop.

Test 7. 30-ft (9-m) Side

Drop #2 (lOoC)

Test 8.

Penetration

Cylinder Drop.

Note: Angle measured from
horizontal .

1154

- 2 -

Cask Scale Test Description and Results

X-radiography examination
ot the shield liner after
Tests 1, 3, 5, and 7 showed
no changes (no cracks) in
the depleted uranium.

Although a scaling
relationship for leakage
testing has not been
developed, qualitative
information can be gained
from scale-model leakage
testing. The helium
leakage rate after each
test was <1 X 10-10
cm. (1986)

TMI-125B 1/4 The TMI-125B cask is a lead

shielded shipping cask
designed to carry damaged
TMI fuel assemblies to
INEL. SNL conducted 30-ft
(9-m) bottom, 30-ft {9-m)
oblique (62. 5o), and 30-ft
(9-m) side drop tests, side
punch and closure punch.
The cask passed all tests
successfully. Although a
scaling relationship for
leakage testing has not
been developed, qualitative
information was gained from
scale-model leakage
testing. The leakage rates
for the cask closure were
acceptable. (1985)

TROPACT I Full and SNL conducted normal and

1/4 Scale hypothetical accident tests
on a 50,000 lb contact-
handled transuranic waste
transport packing. The
tests included:

1155

-3-

Cask Scale Test Description and Results

Test 1. 12" Bottom Drop,

Normal Conditions.

Test 2. 30-ft (9-m)

Center-of-Gravity Over

Corner.

Test 3. 30-ft (9-m) Edge

Drop.

Test 4. Bottom Puncture

Test.

Test 5. Center-of-Gravity

Over Corner Puncture Test.

Test 6. Oblique Angle

Puncture Test (Filters).

Test 7. 30 minute (actual

4b minute) Jet Fuel (JP-4)

Pool Fire Test.

Structural and thermal
performance was demonstrated
throughout the test series.
Containment was provided in
all tests. Prior to full
scale testing, scale model
drop and puncture tests of
the packaging were
performed. Engineering
development tests (full
scale, scale model, and
subsystem) and a large
number ot materials and
components tests were
conducted at high, ambient,
and low temperatures to
ensure design performance.
Contents response testing
was performed to provide
data on cargo during drop
and puncture tests.

o
Modified HNPF Full Four 30-minute 1200 C torch

tests on a modified Hallura
Nuclear Power Facility
(HNPF) cask were conducted
by SNL on a program funded
by the DOT. The DOE made
available a retired spent
fuel cask for testing.

1156

-4-

Cask Scale Test Description and Results

Because the cask was of an

older design, it did not

have a neutron shield or

impact limiters. The cask

was modified to include

these features to be more

representative ot current

designs. The tests

included

Test 1. Side of Cask,

Neutron Shield Intact.

Test 2. Side of Cask Near

Closure (Seal) End, Neutron

Shield Intact

Test 3. Opposite Side of

Cask, Neutron Shield

Voided.

Test 4. Head-On Impact

Limiter, Neutron Shield

Voided.

The greatest temperature

difference measured on the

inside cavity ot the cask

as a result ot torch fire

testing was 80oC for Test 3.

22 Ton Spent Full and SNL conducted 60 and 84 mph
Fuel Cask 1/8 Scale head-on impact tests of a

truck mounted spent fuel
cask into a massive
concrete barrier. Prior to
the full scale impact
tests, scale model tests
were performed. The
purpose ot full scale
testing program was to
validate analytical and
physical modeling
techniques used to predict
the accident response of
spent-nuclear-fuel cask
transport systems. Good
correlation was obtained
with the pretest analytical
and scale modeling
predictions. (1977)

1157

-5-

Cask Scale Test Description and Results

75 Ton Cask Full and SNL impacted a special railcar
in a Special 1/8 Scale at 80 mph into a massive
Railcar concrete barrier. Prior to the

full scale impact test, scale
model tests were conducted. The
purpose ot full scale testing
program was to validate
analytical and physical modeling
techniques used to predict the
accident response of spent-
nuclear-fuel cask transport
systems. Good correlation was
obtained with the pretest
analytical and scale modeling
predictions. (1977)

7b Ton Cask Full SNL conducted a fire test in a

special 80 mph crash-tested
railcar and cask. The lead-
shielded cask survived 90
minutes ot fire. (1978)

B ot E 83 Full This obsolete lead-shielded

cask was drop tested by SNL
from a helicopter 2000 ft onto
undisturbed hard prairie soil
and 30-ft (9-m) drop tested onto
an unyielding target at ORNL.
In the helicopter drop, the
cask, a simple cylindrical cask
weighing 6,720 lb. used for
handling irradiated test
capsules, penetrated 8 ft into
the hard prairie soil after
impacting at 246 mph. The cask
suffered no measuring
deformation. The 30-ft (9-m)
drop test onto an unyielding
surface produced significantly
more deformation and lead
slumping due to the high
deceleration forces incurred at
impact. Weld failures occurred
in the outer shell of the cask
as a result of the 30-ft (9-m)
drop. This cask would have
safely held its contents without
release. (1975)

1158

-6-

Cask Scale Test Description and Results

OD-1 Full This obsolete lead shielded cask

was drop tested by SNL 2000 ft
from a helicopter onto
undisturbed hard prairie soil.
The cask, a simple cylindrical
unit mounted on a rectangular
base plate weighing 16,300 lb
had previously been used to ship
and store fuel from an Oak Ridge
research reactor. It penetrated
4.2 ft after impacting at 230
mph. The cask experienced
superficial deformation that
would not have resulted in
release of contents. The lead
shielding slumped about 0.8" as
the result of impact. A
corresponding 30-ft (9-m) test
was not performed. (19 75)

HWCTR Full ORNL conducted 30-ft (9-m)

oblique and center of gravity
over corner tests on the Heavy-
Waste Component Test Reactor
(HWCTR) cask. The purpose of
program was to establish the
adequacy ot calculational
techniques that were than
employed (1970 's) to predict
cask damage. The cask held air
pressure following the two drop
tests, indicating no significant
leaks in cavity.

Prior to 1977, the AEC and ERDA had
performed a number of cask tests to
establish the adequacy of calculation
techniques used to predict cask
response. Tests included drop tests
ot obsolete casks at ORNL, drop
testing of scale model casks to
establish the validity ot scaling
relationships, and to assist
licensing.

Other types of cask testing, both past
and present, include radiation
shielding, thermal, criticality,
operational, and materials and
components testing.

1159

Appendix IV

Additional Material Submitted
for the Record

Testimony Of

THE HONORABLE NEIL GOLDSCHMIDT

Governor of Oregon

before The

U.S. Senate Committee

On Energy and Natural Resources

Washington, D. C.

February 4, 1987

Chairman Senator Johnston, members of the Committee. I have asked
Oregon's Senior Senator, Mark Hatfield, to introduce my testimony today.
I very much appreciate Senator Hatfield's help in bringing my views to
"the Committee's attention. His service to the people of Oregon is, as
always, of the highest caliber.

Senators, the people of Oregon and their Governor fully support your
intent that this nation have a permanent repository for nuclear waste.
The Nuclear Waste Policy Act approved by Congress five years ago clearly
spells out how that is to be achieved.

But, the process you so clearly defined in the Act has been abused. The
credibility of the. U.S. Department of Energy Is in tatters because of
that abuse. More years have been wasted. And, only Pollyanna now could
doubt that the process to site a nuclear waste repository is headed for
failure again.

We must restore honor to that process. We must not fail this time. But.
failure is certain if Congress does not take action soon.

The people of Oregon and their Governor flatly oppose a permanent
repository for the nation's nuclear waste at Hanford, Washington.

The reason Is simple. Hanford geologically is unfit. That conclusion
was reached by US DOE'S own contractors. Hanford is not and never was a
superior site for a nuclear waste repository.

1160
-2-

Only a flawed and discredited process kept Hanford in the running. And,
on May 28, 1985. the President of the United States announced that
Hanford would be one of three finalist sites. The President also said
that the search for a second site would be postponed.

The President acted on the advice of the Secretary of Energy. Our nation
deserves sounder advice and better service. We are compelled to turn to
this committee and the Congress for equity and sanity In the search for a
nuclear waste repository.

In November 1986, the voters of Washington State — by an 83 to 17 margin
— endorsed a landmark referendum on the Hanford question.

On February 2, I asked the Oregon Legislature to refer to the voters of
Oregon an almost identical question. I expect an almost identical
response from Oregonians in May of this year.

Governor Booth Gardner has proposed a strategy by which all parties— at
the state, regional, and national levels— can resolve repository siting
conflicts. I have told Governor Gardner that I will work with him on
that front— and to build a solid, unified regional coalition to oppose
the Hanford site. We must and we will speak with one voice.

That message will say:

Stop the site selection process now. Stop the three specific
site studies now. Resume the site search only when US DOE
understands that It Is not above the law. US DOE must be made to
conform to the Nuclear Waste Policy Act.

Order the Secretary of Energy to reverse his illegal decision to
suspend the search for a nuclear waste repository in the Eastern
United States. The Secretary clearly has thumbed his nose at
Congressional Intent In the Nuclear Waste Policy Act.

Insist that a resumed site search Include all acceptable geology
— Including granite. Demand that the site for the first
repository be chosen because it scientifically and technically Is
the superior site. The choice must not be made simply because
that state and region can politically be outmuscled.

The people of Oregon and Washington will demand that Congress heed Its
own clear intent in the Nuclear Waste Act with regard to US DOE's budget
— and how US DOE spends that money.

For Illustration, I remind you that US DOE today stands ready to
waste away a billion dollars for more studies at Hanford. And
Hanford, by US DOE's own admission. Is the least safe site and
the most costly site. Hanford also was ranked highest for
expected releases to the environment among the five sites under
consideration a year ago.

1161
-3-

Only US DOE could construe those conclusions as a rationale to spend a
billion dollars.

Oregon's message will differ from Washington's in only one way. We will
insist that Oregon have the same status in site selection as a state in
which a repository is proposed.

We will asic Congress to change the law that denies us that status. We
are unique among the states adjacent to potential host states because:

The Columbia River is Oregon's lifeblood. The river has been
contaminated in the past by discharges from eight old nuclear
reactors. Today, groundwater is threatened by contamination from
open trenches and leaking tanks of radioactive wastes at Hanford.

The Columbia collects groundwater from the nuclear reservation.
The river then flows westward for 300 miles past and through
communities that comprise more than half of Oregon's population.

Leaks from a repository at Hanford could reach local groundwater
and the Columbia. Oregon simply will not accept the threat that
Hanford will again poison the Columbia River with radioactive
contamination.

Oregon must have a larger role because of the added risks imposed
on us by the transport of high-level radioactive wastes. Hanford
is in the southeastern corner of Washington. Because it is so
close to the Oregon border, wastes shipped to or from Hanford
will travel farther on Oregon highways than on Washington's.

Oregon needs a larger role in the siting process even when
Hanford is dropped from US DOE'S list. There is 40 years
accumulation of radioactive defense wastes at Hanford. Oregon
has concluded that the wastes must be cleaned up to protect
groundwater and the river. When the wastes are removed from
Hanford, Oregon faces the added risks of having 7,000 truckloads
of radioactive waste on our highways.

The risks to our people and our environment are an issue in which
we must have legal equal standing and a strong voice.

Senators, Oregon does not oppose a nuclear waste repository. We have a
nuclear power plant. We generate nuclear waste. In a dozen years,
Oregon has contributed about 1 percent of the nuclear waste this nation
must store safely — in effect, forever.

My message here today is different from the strident hypocrisy of "not in
my backyard". If Hanford could scientifically be proven to be
technically superior to other candidate sites, Oregon would not be taking
US DOE to court.

If Hanford were geologically fit to keep nuclear wastes away from people
and the environment so long as the wastes are dangerous, we likely would
not need this hearing.

1162

-4-

If US DOE had not prostituted its own process to nominate and select
candidate sites, we would be miles further down the road toward our goal

— instead of bogged down here.

This nation made what we now know is an irretrievable commitment to
nuclear power more than 40 years ago. Promises were made then that must
be kept hundreds and thousands of years from now — even if we do not
ever produce any more nuclear waste.

There was not then — and there does not now appear to be a parallel
commitment to pay the real costs... the astronomical and eternal costs of
"electricity too cheap to meter". But, pay we must — one way or another.

There were a lot of promises made — and broken. Sure, nuclear waste is
dangerous stuff. Of course, we'll take care of it. Someday. Just a
week ago, we learned that even the latest target year — 1998 — has
slipped by five years.

Someday just isn't good enough.

The accidents at Three Mile Island and Chernobyl are, thank God, behind
us. But, there is clear and disturbing evidence that pre-Three Mile
Island and pre-Chernobyl mindsets persist today. Those mindsets are
afraid or unwilling to look at technical and scientific judgments and
ask: "What if we are wrong?"

There are grave consequences about building a deep repository at Hanford

— and being wrong. The site is immersed in groundwater. The river is
close by. The impacts of a leak in the repository could be severe for
Oregon — even if the leak could be detected in time.

Some engineers argue that even if Hanford' s geology can't be trusted,
monitor systems could always detect a repository leak in time to fix it.

But, what if they are wrong?

Remember Hanford 's defense wastes. Because of 40 years of radioactive
waste production, storage, and leaks, a good part of the reservation has
been exposed to radioactivity.

Could leaking radioactivity in the repository be distinguished from other
radioactive contamination on the reservation? That uncertainty alone
should disqualify the Hanford site.

Chairman Johnston, Senators ... let me sum my testimony quickly.

Oregon opposes a repository at Hanford because the site geology
Is unfit to safely store nuclear wastes. If that were not the
case, we would not oppose the repository at Hanford.

We believe that you ~ the Congress — must send a strong, clear
message to the Secretary of Energy. Stop this flim-flam of a
site selection process now. Set it straight. Restore the search'-
for an Eastern repository. The White House and US DOE must be
made to realize that Congress adopted the Nuclear Waste Policy
Act with clear directives to federal agencies.

1163

-5-

In the' meantime, we In Oregon and the Pacific Northwest will practice a
new vigilance: in the courts as we challenge US DOE's high-handed
tactics; in the voting booth as we collectively demand that our interests
and concerns be addressed . . . and here in the Congress, Oregon's
delegation is experienced, highly Informed, and totally aware of what Is
at stake. We look to them and to you for fair play and common sense.

Thank you.

3659M(d4)
01/29/87

1164

EDISON ELECTRIC INSTITUTE
AMERICAN NUCLEAR ENERGY COUNCIL
UTILITY NUCLEAR WASTE MANAGEMENT GROUP
ELECTRIC UTILITY COMPANIES' NUCLEAR TRANSPORTATION GROUP
ATOMIC INDUSTRIAL FORUM

STATEMENT ON

U.S. DEPARTMENT OF ENERGY'S IMPLEMENTATION OF THE
NUCLEAR WASTE POLICY ACT OF 1982

SUBMITTED TO

COMMITTEE ON ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE

FOR THE HEARING RECORD OF
JANUARY 29, FEBRUARY 4 AND 5, 1987

1165

The Edison Electric Institute, American Nuclear Energy
Council, Utility Nuclear Waste Management Group, Electric Utility
Companies' Nuclear Transportation Group, and the Atomic Indus-
trial Forum are pleased to have the opportunity to provide their
collective views on DOE's implementation of the Nuclear Waste
Policy Act of 1982 (NWPA) . These groups represent (in some
instances, among others) the electric utilities with nuclear
energy programs who are the sole financial supporters of the DOE
activities under the NWPA. The electric companies are respon-
sible to the electricity consumer for the appropriate use of
these funds. In addition to paying into the Nuclear Waste Fund,
as required by the NWPA, electric utilities are, through partici-
pation in these groups, following the NWPA implementation, as
well as providing assistance to the Federal Government, where
appropriate.

The Edison Electric Institute (EEI) is the association of
investor-owned electric companies. Its members serve approxi-
mately 73 percent of ultimate electric customers in the nation.
EEI's membership includes the majority of DOE's nuclear waste
services elastomers.

The American Nuclear Energy Council (ANEC) represents over
100 organizations having an interest in nuclear power, including
investor, public and cooperatively-owned utilities, manufac-
turers, architect-engineers and various firms in the nuclear fuel
cycle.

The Utility Nuclear Waste Management Group (UNWMG) is a
specific activity that is funded by 43 utilities with nuclear
programs, including EEI member companies, public utilities and
cooperatively-owned utilities. Its primary purpose is to promote
the implementation of the Nuclear Waste Policy Act and to assist
in the resolution of spent fuel storage and nuclear waste dis-
posal issues.

The Electric Utility Companies' Nuclear Transportation Group
(EUCNTG) represents 33 investor owned and publicly owned
utilities. One of EUCNTG' s primary objectives is to promote
successful implementation of transportation-related provisions of
the NWPA.

The Atomic Industrial Forum (AIF) is an association
dedicated to the development of the peaceful uses of atomic
energy. Its approximately 400 U. S. members include electric
utilities, which are funding activities mandated under the NWPA,
as well as manufacturers, architect-engineers, constructors and
consultants playing important roles in its implementation.

-2-

1166

The Nation requires development of a technically sound and
publicly acceptable high-level radioactive waste disposal program
in order that both commercial and defense use of nuclear energy
continue. In this regard, it is the industry's overriding goal
to achieve efficient, effective and fair implementation of the
NWPA leading to the successful operation of a national high-level
radioactive waste disposal system as close to the NWPA schedule
as possible. For DOE to take the necessary steps to implement
the NWPA during FY 1988, the industry asks Congress:

o to appropriate for FY 1988, from the electric utility/
customer-funded Nuclear Waste Fund, sufficient funds
for DOE to proceed expeditiously with site characteri-
zation at the three potential first repository sites,
including the initiation of drilling exploratory
shafts,

o to authorize and fund the construction of the Monitored
Retrievable Storage Facility (MRS) , and

o to provide equitable payments of defense waste disposal
fees into the Nuclear Waste Fund.

The industry is extremely concerned over the current state
of affairs surrounding the NWPA implementation. After electric
utilities with nuclear energy programs have collected from
electricity consumers and paid $ 2.7 billion into the Nuclear
Waste Fund, DOE is facing unprecedented opposition to the contin-
uation of NWPA implementation. DOE is attempting to pursue the
NWPA under the cloud of a crisis in confidence in its ability to
manage the program. Some of DOE ' s difficulties are of its own
making, but many have been manufactured by those who would seek
to halt the NWPA implementation.

On January 28, 1987, DOE published a Draft Mission Plan
Amendment (DMPA) that lays out a new program strategy, which we
currently have under review for comment to DOE. Unfortunately,
one aspect, the second repository reprogramming, has led to an
impasse over DOE moving forward. The DMPA should be revised,
prior to final submission, in a manner acceptable to Congress to
provide direction for the high-level radioactive waste program so
it can move forward for the benefit of the Nation. The industry
stands ready to aid in this process.

NUCLEAR WASTE POLICY ACT OF 1982

Congress passed the Nuclear Waste Policy Act of 1982 in
December 1982 and President Reagan signed the NWPA into law on
January 7, 1983. This action culminated many years of Congres-
sional effort, involving many parties (utilities, environmental

-3-

1167

groups, States, Indian Tribes and the Federal Government) that
sought enactment of a statute to create a credible national
high-level radioactive waste disposal program. Years of good
faith efforts by all concerned produced comprehensive and care-
fully balanced legislation. While no one party was pleased with
all aspects of the NWPA, all parties accepted the final compro-
mise. When implemented, the NWPA would assure the long-term safe
handling, transportation and disposal of spent fuel and defense
high-level nuclear waste.

In essence, the NWPA sets out a process for the development
and operation of a high-level radioactive waste disposal system.
The Secretary of Energy is authorized to identify, construct and
operate one repository and the related transportation system,
select a site for a second repository and provide Congress a
proposal for a Monitored, Retrievable Storage facility (MRS).
Congress, in the NWPA, reserved for itself the decisions of
whether to authorize construction of a second repository or an
MRS. Through the DMPA, DOE is recommending schedule changes for
activities required by the NWPA that could make the schedules
more realistic and the total program more manageable. It is
appropriate that DOE bring these recommendations to Congress, and
that they be considered dispassionately on their merits. One of
the challenges to the present program is the perception by some
that a delay in implementing the NWPA is acceptable and even
desirable if it results in a better repository system. The
program may continue to be paralyzed by the quest for a better
solution, even though the direction being pursued is entirely
adequate for the safe disposal of nuclear waste.

Obligations Under the NWPA

Electric utility companies with nuclear energy programs are
fulfilling their commitments under the NWPA. As stated above,
electric utilities, on behalf of the electricity consumers, have
paid about $ 2.7 billion into the Nuclear Waste Fund and continue
to pay at a rate of over $ 400 million per year; the Fund's
current balance is about $ 1.7 billion. Although these monies
are available only for expenditures pursuant to the NWPA and must
be appropriated annually by Congress, the Administration uses the
positive balance in the fund, each year, to reduce the overall
federal deficit calculation under Gramm-Rudman-Hollings. On the
other hand, the Administration has not paid any of its fair share
as required by the NWPA into the Nuclear Waste Fund for disposal
of defense high-level radioactive waste.

The NWPA represents a bargain between Congress and the
electric utilities. This bargain was reflected in contracts
signed by DOE and electric utilities that require the utilities
to pay into the Nuclear Waste Fund well in advance of receiving

-4-

1168

services and DOE is required to begin receiving spent fuel in
1998. The current impasse over the second repository reprogram-
ming is giving the industry pause to consider whether or not DOE
will be allowed by opponents to NWPA implementation to live up to
its obligation and what recourse might be available to utilities
in the event that it is not.

In the interim period, which is beginning to look longer
than understood when the NWPA was enacted, the utility industry
will be faced with providing spent fuel storage at reactor sites
for a longer period than originally anticipated.. A number of
utilities have developed, or are developing, on-site storage
alternatives against the day that the spent fuel storage capacity
originally built into the reactor plants proves to be insuffi-
cient. For example, Virginia Power has completed, licensed and
is demonstrating a dry cask storage installation at its Surry
Station; Carolina Power and Light Company has a licensed dry
storage concept using air cooled vaults. Others continue to
expand pool storage capacity by installing higher capacity
storage racks and a few are involved in developing rod consoli-
dation technology. Electric utilities recognize that they are
responsible for on-site storage of spent fuel until DOE takes
responsibility in 1998. However, if any utility's spent fuel is
not taken from the reactor site by DOE under the original NWPA
schedule, it will have to expend additional sums to continue
on-site storage. Those utilities could very well seek recovery
of those expenditures from the Federal Government due to its
failure, for whatever reason, to live up to its contractual
obligation.

The NWPA also requires that, once the President determines
that a separate defense waste repository is not necessary, the
Federal Government contribute its fair share to the Nuclear Waste
Fund. Such a decision was made by the President in 1985. Since
the Federal Government has not paid any of its share into the
Nuclear Waste Fund, there is absolutely no question that
commercial electricity consumers have, and are continuing, to
subsidize the defense program. This is not just an irritant to
the electric utilities and electricity consumers, it is plainly
unjust. If the generators of commercial nuclear waste are
required to fund in advance the development of the high-level
radioactive waste disposal system, so does the generator of the
defense waste. DOE has finally made public its proposed method-
ology for developing a defense waste cost share. Unfortunately,
DOE is u?ing an inadequate administrative process to propose an
inadequate cost sharing formula that will lead to an inadequate
contribution to the Nuclear Waste Fund at some indeterminant
time. We ask that Congress require an adequate and equitable
cost share for the disposal of defense waste.

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Progress to date

Even though the only statutory schedule date that DOE has
met was the execution of the contracts with electric utilities
(thereby ensuring the unimpeded flow of funds) , a number of very
important milestones have been reached. Most importantly, the
sites for characterization as the first repository were named.
It is unfortunate that the impasse over the recommended second
repository reprogramming is threatening the progress achieved to
this point.

On May 27, 1986, DOE published five massive Environmental
Assessments for the nomination of the first repository sites for
characterization and recommended three to the President. On May
28, the President approved the first repository site recom-
mendations for characterization of three sites. Approval of the
three sites by the President was a major accomplishment.

Throughout the arguments over, and court reviews of, the
adequacy of the Environmental Assessments and the process for
naming the three potential sites for characterization as the
first repository, it is important to keep in mind the purpose of
the Environmental Assessments. These documents were not intended
to make the dispositive case for the location of the first
repository. The Environmental Assessments were intended only to
provide an understanding sufficient to indicate that it is worth
the substantial investment to carry out the very expensive site
characterization. It is only during site characterization that
the needed data will be gathered to make the case for a specific
site. This v;ill lead to the Environmental Impact Statement, the
Presidential recommendation of the first repository site to
Congress and the subsequent licensing proceeding, where the
dispositive case will have to be made that the selected site
meets all the regulatory requirements.

Although the designation of the three sites for characteri-
zation missed the NWPA deadline by fifteen months, the decision,
nonetheless, was finally made. The presidential approval of the
three sites for characterization was based on a careful process
that took place over a number of years and the decision-aiding
methodology was reviewed and endorsed by the National Academy of
Sciences. It is not in the best interests of the Nation to
revisit the first repository site designation for site charac-
terization.

As indicated above, electric utilities must plan for provid-
ing sufficient on-site spent fuel storage capacity. In doing so,
they must take into account the DOE schedule for operation of the
high-level radioactive waste disposal system. The current phase
of the DOE program is site characterization. While a great deal

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1170

of information required for site characterization will be secured
through surface, sub-surface and laboratory testing, some of the
needed information can only be secured by gaining access to
geologic data via an exploratory shaft. Utilities recognize that
the DOE schedule, even with the five year slip, is "success-
oriented" and does not incorporate some of the uncertainties
inherent in a program of this type. To minimize the potential
for these uncertainties to cause further slippages in the start-
up of the first repository, appropriations for FY 1988 and
subsequent years from the Nuclear Waste Fund must be sufficient
to permit expeditious drilling of the exploratory shafts at the
three potential first repository sites.

doe's progress has been made through the efforts of its own
staff and its contractors. A new contracting proposal by DOE for
a centralized system engineering contractor will aid in progres-
sing with reasonable schedules and milestones. The industry, in
past testimony, urged that DOE move to a more centralized manage-
ment system and we are pleased to see that DOE is moving forward
with this change.

FIRST REPOSITORY SCHEDULE CHANGE AND THE MONITORED RETRIEVABLE
STORAGE FACILITY (MRS)

Although the first repository schedule slippage is disap-
pointing, UNWMG reviews of DOE repository projects suggest that a
schedule slippage was inevitable; no one predicted the extent of
the effort required by the NWPA nor the nature of the concerns of
the potential host states.

The MRS has been a misunderstood element of the NWPA pro-
gram. As an integral part of the high-level radioactive waste
disposal system as described in the DM PA, the MRS will perform
functions essential to the disposal of spent fuel. It will
provide vitally needed flexibility in the planning, design,
construction and operation of the disposal system, thereby
lessening the effects of uncertainties. Furthermore, the NWPA
implementation experience thus far has demonstrated that progress
is, indeed, a precious commodity. The MRS is an important item
that will make progress towards the operation of the disposal
system at a date earlier than would be the case with a reposito-
ry-only system. Having the MRS in the disposal system would help
meet the first repository start-up date by allowing a more
flexible and efficient repository design and licensing process.

Now DOE proposes to slip the first repository operations
date by five years to 2003 and meet the 1998 contractual obli-
gation to the electric utilities by use of the MRS. The nuclear
industry supports the development of an MRS as an integral part

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1171

of the repository program. However, the MRS is not acceptable
for long-term disposal, which must be accomplished in a deep
underground repository. If Congress accepts an NWPA implemen-
tation change that includes using the MRS as the means to live up
to the 1998 obligation, then Congress must authorize the MRS and
not restrict its use. Even though the NWPA requires DOE to
submit a proposal for the MRS, one is not required for Congress
to authorize the facility.

SECOND REPOSITORY

On May 28, 1986, Secretary of Energy John Herrington an-
nounced that he concluded that a second repository would not be
needed on the schedule contained in the NWPA and that substantial
savings could be achieved if Congress permits the site-specific
work for the second repository to be put off until the mid-1990s.
The industry supports, above all else, the NWPA and recognizes
that Congress called for a second repository siting effort. In
the DMPA, DOE is recommending that the second repository
reprogramming announced this past May be approved by Congress.
It is troubling that this one recommendation is the focal point
for challenging the credibility of the overall high-level radio-
active waste disposal system development. The industry appeals
to Congress and DOE to find an acceptable compromise on the
second repository program between the two extremes proposed by
DOE: the DMPA recommendation or a return to the pre-May 28, 1986
program. Such a compromise should lead to a real commitment for a
site selection of a second repository, as required by the NWPA.,
but on a realistic schedule. The Administration and Congress
must work cooperatively to resolve this difficult problem,
because it is apparently impeding the ability of Congress to fund
the basic program so it can move forward.

CONSULTATION AND COOPERATION

DOE and the affected States and Indian Tribes must make best
efforts to reach Consultation and Cooperation (C&C) agreements in
a timely manner. However, all parties must recognize that the
goals of DOE and the States and Indian Tribes may simply be
different and comprehensive agreements may not be possible. As
long as good faith efforts are made, the lack of C&C agreements
should not prevent DOE from receiving unrestricted appropriations
from the Nuclear Waste Fund so that the NWPA implementation
program can go forward.

Beyond the outcome of the formal C&C process, DOE must
approach realistically the participation of the States and Indian

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1172

Tribes in the implementation of thfe NWPA, The lessons learned
during the last four years in selecting the sites for characteri-
zation for the first repository and from the MRS experience
should be applied, to the extent practical, to the overall
repository process.

V7ASTE PROGRAM INCENTIVES

Congress and the Administration should provide economic
incentives to the States and Indian Tribes that will host
high-level radioactive waste disposal system facilities. In the
NWPA, Congress authorized fairly limited incentive mechanisms.
In light of recent history, it is proper for Congress and the
Administration to develop a broader scope of incentives needed to
compensate the States, Indian Tribes and communities for hosting
these facilities. Furthermore, only in Congress can the poten-
tial host States directly negotiate with the other States over
acceptance of nuclear waste facilities.

CONCLUSION

The Nation's demand for electricity continues to grow.
Nuclear energy will supply twenty percent of the Nation's energy
needs by the year 1990. The NWPA was a product of Congress's
determination that disposal of high-level radioactive waste is
essential in order to preserve this nation's energy options. It
is imperative that concerns regarding NWPA implementation be
addressed and resolved for the national need of high-level
radioactive waste disposal to be satisfied and reasonable pro-
gress achieved to allow nuclear energy to be a viable source of
electricity for the Nation now and in the future. Congress
should take positive action to assure that a national high-level
radioactive waste disposal system becomes a reality.

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Full text of "Nuclear waste program : hearings before the Committee on Energy and Natural Resources, United States Senate, One hundredth Congress, first session .."

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