FYI: The AIP Bulletin of Science Policy News

Sending a Message: House Action on Yucca Mountain

Richard M. Jones
Number 82 - June 12, 2012  |  Search FYI  |   FYI Archives  |   Subscribe to FYI

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By a four-to-one-ratio, the House of Representatives passed an amendment to the FY 2013 Energy and Water Development Appropriations Bill to increase funding to study the suitability of the proposed nuclear waste repository at Yucca Mountain, Nevada.  Members from both sides of the aisle expressed opposition to the decision to stop the analysis by the Nuclear Regulatory Commission of the Yucca Mountain site, and later passed by a vote of 326 “yes” votes to 81 “no” votes an amendment to increase NRC funding. 

House appropriators had already made clear their opposition to the termination of the NRC study. The June 6 vote provided another vehicle for House members to send a message.

This FYI reviews the extensive discussion about Yucca Mountain during the debate, offering insight into the thinking of House members about this very controversial issue. No member spoke in support of the Administration’s actions.
 
In opening remarks when the bill came before the full House, Energy and Water Development Appropriations Subcommittee Chairman Rodney Frelinghuysen (R-NJ) explained:

“Finally, a word about Yucca Mountain.  The recommendation includes $25 million for Yucca Mountain with language prohibiting activity which keeps that facility from being usable in the future. The recommendation also denies funding for Blue Ribbon Commission activities, which need legislative authorization. Research and development activities to support Yucca Mountain are permitted. This will ensure that we keep Congress in the driver’s seat for nuclear waste policy."

Energy and Water Development Appropriations Subcommittee Ranking Member Peter Visclosky (D-IN) was equally as forceful:

“Lastly, I would like to express my support for the chairman’s inclusion of funding for the Yucca Mountain nuclear waste disposal project and for including the provision to prohibit the use of funding to abandon the project.  I agree with him and the other subcommittee members that the administration’s actions to close the project run counter to the Nuclear Waste Policy Act of 1982.”

Of note, full House Appropriations Committee Ranking Member Norm Dicks (D-WA) outlined his agreement with Frelinghuysen and Visclosky, and discussed an amendment he would support offered by a senior Republican to increase Yucca Mountain funding:

"I want to applaud the chairman and ranking member for continuing the funding for the Yucca Mountain nuclear waste storage facility. During the amendment process of this bill, I expect to join an effort led by [Environment and Economy Subcommittee] Chairman [John] Shimkus [(R-IL)] to increase funding in this account in order to underscore the strong bipartisan support in the House for moving ahead with the plan to open the Nation’s high-level waste storage facility. I believe, as many do in the House, that the administration’s position to close the Yucca Mountain site runs counter to the letter and spirit of the Nuclear Waste Policy Act passed by the Congress."

Also expressing his opposition to the Administration’s actions to close Yucca Mountain was Rep. Robert Andrews (D-NJ):

“Let me begin by thanking the chairman and the ranking member for what I view as a very wise decision to make a funding investment in nuclear waste disposal at the Yucca Mountain facility.  This is a very controversial issue, particularly in the other body [Senate], but I think that clean and well-managed nuclear energy is a key part of this country’s economic future. Sadly, there has been a backpedaling from years of research and investment in the Yucca Mountain facility. I think that the geological evidence is compelling, and I think that the national security arguments are compelling.

“I think that the best way for us to dispose of nuclear waste at one site is as isolated from any population center and geologically insulated from any water table that would be nearby. I think that the Yucca Mountain site has been proven to be the right move.  I think for unfortunate political situations we’ve not invested in that.  I commend the chairman and the ranking member for reversing that decision to the extent possible in this bill and for moving forward with the further exploration of that option.”

Later during House consideration of this bill, Rep. Shimkus explained his amendment to the committee’s bill as follows:

“Mr. Chairman, the Nuclear Regulatory Commission, the NRC, has adequate funds to resume licensing activities for the Yucca nuclear waste repository as called for in the Nuclear Waste Policy Act, but it refuses to do so. The NRC claims it has the legal authority to ignore the law duly enacted by this Congress if the agency isn’t given enough money to ‘finish the job.’

“Under our Constitution, agencies are funded year to year. They are seldom, if ever, given enough money in one year to do everything the law tells them to do, especially for long-term projects. In 2008 when the Yucca Mountain licensing proceedings started, Congress appropriated NRC enough money to conduct the proceedings for that year. We sure didn’t give it enough to complete the 3-year licensing proceeding.

“In 2009, we gave the NRC enough to carry out the proceeding for another year. The NRC didn’t stop because it didn’t have enough money to finish the job. In fact, NRC only stopped the licensing and refused to spend money appropriated for licensing based on the administration’s policy decision that the site is no longer workable.  Now, after being hauled into Federal court for ignoring a statutory duty to decide the license application in 3 years, the NRC claims it doesn’t have to follow the law because, while it has plenty of money to resume the licensing process and move it forward, it doesn’t have enough money to finish it.  When we pass a law and tell an agency to do something and give it enough money to do a job during a given year, can the agency just thumb its nose and say, We’re not going to do that job at all because Congress didn’t give us enough money to finish the job next year?

“No agency has ever successfully told a court not to make it follow the law because in some future year it might not get enough money to do the job the law requires. Allowing NRC to cancel Yucca would unconstitutionally shift the balance of powers to executive agencies to evade congressionally mandated legal obligations.  The Federal appellate court has made its displeasure with the NRC’s legal position known. We need to do the same.  This is an outrageous unilateral decision to stop Yucca and not spend funds specifically appropriated for licensing activities. No agency can ignore a statutory duty to proceed with a project based on a subjective determination that adequate funds may not be available to complete the project in the future.

“We need to send a clear message to every agency this isn’t how our Constitution works.  So on top of the over $10 million that the NRC has now to restart the licensing process, this amendment provides an additional $10 million in new funds so they can continue the process. The amendment is budget neutral and fully offset by taking funds from the DOE’s departmental administration account.

“We are asking DOE to do more with a little less by making modest cuts to an account for salaries and expenses.  I urge my colleagues to vote ‘yes’ on the amendment to fund the legally required licensing process for Yucca Mountain so that the NRC, an independent government agency, has funding necessary to finish their thorough, objective, and technical review. In doing so, the NRC, not political games, will determine whether Yucca Mountain would make a safe repository.

“Having spent 30 years and $15 billion of ratepayer money, the American people at least deserve to find out the answer to whether Yucca is safe.  And whether you favor nuclear power or Yucca Mountain isn’t the only issue.  The core issue is whether laws we pass may be completely ignored by agencies if they think that someday they may not get enough money to finish the job.  Allowing agencies to get away with this results in shifting more of our legislative powers to unelected agency bureaucrats.”

The most senior Democrat on the Appropriations Committee, Rep. Dicks, stated:

“I rise in strong support of the Shimkus amendment, which will ensure that the NRC has the resources to carry out its responsibility with regard to the Nation’s high-level waste repository at Yucca Mountain. 

“I regret the position that the NRC has taken on this issue. On the Appropriations Committee, it is our belief that the Commission has adequate funds to resume licensing activities for the Yucca Mountain project as called for in the Nuclear Waste Policy Act.  But the Commission simply has refused to act. The NRC claims it has the legal authority to ignore the law duly enacted by this Congress if the Agency isn’t given enough money to “finish the job.’  Under our Constitution, agencies are funded year to year. They are seldom, if ever, given enough money in one year to do everything the law tells them to do, especially for long-term projects.

“In 2008, when the Yucca Mountain licensing proceeding started, Congress appropriated sufficient funds to the NRC to conduct the proceeding for that fiscal year. In 2009, we gave NRC enough money to carry out those responsibilities for another year. The NRC didn’t stop because it didn’t have the entire amount of money to finish the job. In fact, the NRC only stopped the licensing and refused to spend money appropriated for licensing based on a unilateral policy decision that the site is no longer workable.  Now, after being brought to Federal court for ignoring its statutory duty to decide the license application in 3 years, the NRC claimed – astoundingly - that it does not have to follow the law because, while it has plenty of money to resume the licensing process and move it forward, it doesn’t have every dollar in hand that would be required to complete the process.

“When Congress passes a law, appropriates money, and directs an agency to carry out an important government function during any given fiscal year, that agency cannot just thumb its nose and say we’re not going to do that job at all because Congress didn’t give us the money to do the following year’s work. No agency has ever successfully told a court not to make it follow the law because in some future year it might not get enough money to do the job the law requires.

“Allowing the Nuclear Regulatory Commission such power to effectively cancel Yucca Mountain after Congress has enacted a law directing that it be accomplished would be an affront to the Constitution, and it would shift the balance of power to executive agencies to evade congressionally mandated legal obligations.  The Federal appellate court has already made its displeasure with the NRC’s legal position known. We need to do the same. The Shimkus amendment would assure that the Commission proceeds with the determination of whether Yucca Mountain is an appropriate location for a safe repository.  The amendment is budget neutral -- fully offset by redirecting funding from DOE’s departmental administration account.”

Also expressing support for the amendment was Rep. Doc Hastings (R-WA):

“I want to thank the sponsor of this amendment, Mr. Shimkus, for bringing this amendment forward. And I want to thank the distinguished ranking member from my home State of Washington and the chairman of the subcommittee for their support also of this amendment.

“This is very serious business when the administration is absolutely ignoring statutory law that was passed by this Congress. As a matter of fact, going way back to 1995, this House has acted 32 different times, principally on these appropriation bills as they come forward, to address this issue.

“Generally, the issue is to not fund Yucca Mountain. Thirty-two times this House, since 1995, has said we are going to fund Yucca Mountain. So I think that the Congress - and certainly the House - has well established what their position is.”

At that point, Dicks interjected:

“The fact is that we passed a law that was signed by the President of the United States at that time. I can remember Congressman Udall was chair of the committee at that point. We passed a law that said do Yucca Mountain, and that law has not been repealed. That is still the law of the land.”

Hastings replied:

“. . .  that is precisely the point. Both you and Mr. Shimkus made that point very well that needs to be repeated over and over: This is statutory law. And 32 different times it has been attempted to be modified on the House floor, and 32 times it has been rejected since 1995.

“Let me put a personal note on this because I represent the Hanford area in central Washington. It was one of the three Manhattan Projects where we developed atomic weapons to win not only the Second World War but also the Cold War. The process of developing those atomic weapons created a tremendous amount of waste, and the State of Washington has a legal agreement with the Federal Government to clean up that waste. It’s called the Tri-Party Agreement. But just to give you an idea of the scope of what needs to be cleaned up there, the waste in underground tanks at Hanford would fill this Chamber over 21 times with radioactive and/or hazardous waste. That’s the waste that will eventually go to the repository after it is glassified.

“So I thank the gentleman from Illinois for bringing this amendment forward, and I urge my colleagues to support this amendment. It’s very, very important. This will be the 33rd time, I contend, that this House will have reaffirmed that Yucca should be the repository.”

Commenting next was Chairman Frelinghuysen:

“Mr. Chairman, I rise to speak very briefly to associate my remarks with Mr. Dicks, Dr. Hastings, and Mr. Shimkus. I want to thank them for bringing this amendment forward to increase funding for license for Yucca.  This is a bipartisan effort. And it’s not only bipartisan; the nexus is also support from authorizers and appropriators.  So I’m highly appreciative of their initiative. I think it ought to be supported by all Members. I think we ought to move forward and send a message: we need to get Yucca open. This is a way to reclaim the $15 billion that’s been put into that effort by keeping the license process open and above board.”

Ranking Member Visclosky then spoke:

“I appreciate the recognition and rise in strong support of the gentleman from Illinois’ amendment.  I believe the debate on this has been very fruitful and will simply add my voice to theirs.

“I believe the administration and the Senate’s ongoing attempts to shut this activity down are without scientific merit and are contrary, as has been said on the floor, to existing law and congressional direction.  Under the Nuclear Waste Policy Act of 1982, the Federal Government has a responsibility to demonstrate its capability to meet its contractual obligation by addressing the spent fuel and other high-level nuclear waste at permanently shut down reactors.  We need to ensure that the administration does not unilaterally dictate policy for nuclear waste disposal, and I strongly urge my colleagues to join me in supporting the gentleman’s amendment.”

Richard M. Jones
Government Relations Division
American Institute of Physics
rjones@aip.org
301-209-3095