“A recent court decision is a reason to pass nuclear waste legislation to slash environmental standards and force a dump on Nevada.”
Wrong Again.
A three-judge panel of the U.S. Court of Appeals, D.C. Circuit, ruled that the Department of Energy has a contract with the nuclear utilities to start “disposing” of utility fuel in 1998. With the Justice Department choosing not to appeal, the nuclear industry has predictably seized upon the decision as support for passing S. 104, the Nuclear Waste Policy Act of 1997.
Closer examination, however, reveals that the ruling is either silent on or contrary to the central provisions of the legislation, and not at all supportive of S. 104’s radical hostility to environmental protection.
What the Decision Does Not Do…
Does not require taxpayers to take title to the waste in 1998…
The ruling acknowledges the fact that the government is not required to take title to irradiated fuel until a disposal capacity for the materials exists. “Disposal,” as defined by current law and cited by the judges, is “emplacement in a repository of … spent nuclear fuel … with no foreseeable intent of recovery.” DOE’s taking title to the waste “is linked to the commencement of repository operations.” The panel wrote, “it is not unusual, particularly in the nuclear area, to recognize a division between ownership of materials and other obligations relating to such materials.” In other words, taxpayers need not shoulder the liability for these materials until a long-term plan is in place, even if the DOE takes control of the waste. S. 104, however, transfers title and liability to the taxpayer beginning in 1999.
If taxpayers become liable for the waste that the nuclear industry chose to create, it will be because Congress chose to be more generous than usual with corporate welfare, not because of anything the court said.
Does not establish remedies for a failure by DOE to meet the 1998 date…
The court states that it is “premature to determine the appropriate remedy” should fuel acceptance not begin in 1998. Indeed, in accord with the contract, the DOE has sent a letter to each contractor explaining its unavoidable delay in accepting the waste. The letter asks the contractors for their suggestions as how to best deal with the delay.
Moreover, one should note that passage of S. 104 would not enable the deadline to be met, as the legislation sets an acceptance date for late 1999. Moreover, the Nuclear Waste Technical Review Board has found that the federal government could not begin accepting significant quantities of spent fuel until after 2002.
Does not order Congress to slash environmental standards…
The court’s interpretation of existing law in no way obliges Congress to set an excessively high radiation release standard, carve loopholes in the National Environmental Policy Act, or allow the preemption of every federal, state, and local environmental protection law on the books, all of which would be done by S. 104.
Does not order Congress to force a nuclear waste dump upon the State of Nevada…
The current Nuclear Waste Policy Act, which formed the basis of the court’s ruling, prohibits the construction of an interim facility until the issuance of a license to construct a permanent facility. Current law also expressly forbids the construction of interim storage in Nevada.
Does not order Congress to compound its errors…
Congress clearly erred in setting 1998 as the date for opening a repository, and the DOE compounded the error by crafting contracts that relied upon the 1998 date. Now Congress is poised to repeat the mistakes of the past by setting a new set of arbitrary deadlines in service of the nuclear industry. But if the nuclear lobbyists have their way, citizens will be left with the safety risks of transportation, the fiscal risks of liability, and the environmental risks of slashed standards. No court could force such an outcome, only Congress.
Protect the Public, Protect the Taxpayer. Oppose S. 104!
For more information, contact Bill Magavern or Auke Piersma at Public Citizen, 546-4996.
Auke Piersma Phone: (202) 546-4996
Researcher/Admin Assist Fax: (202) 547-7392
Critical Mass Energy Project Email: apiersma@citizen.org
Public Citizen Website: www.citizen.org/cmep/dtwsam.htm