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tion of any facilities or property at the center or for any wastes at the center. Nothing in this act shall be construed as affecting any applicable licensing requirements of the Atomic Energy Act

And so forth.

What does that mean?

Dr. BATEMAN. That is a real eye-crosser.

Mr. DINGELL. Why don't you do this. Submit to us your interpretation.

Dr. BATEMAN. We will submit an interpretation of that for you for the record. I think that would be better than me trying to take a crack at it.

Mr. DINGELL. Would you please submit for the record what the meaning of that paragraph is. I think it would be helpful to the subcommittee and we would have better appreciation of the legislation before us.

[The following information was received for the record:]

DOE ANALYSIS OF H.R. 6865

Section 6 of H.R. 6865 contains three sentences. The first sentence reads: "Other than the costs and responsibilities established by this Act for the project, nothing in this Act shall be construed as affecting any rights, obligations, or liabilities of the commercial operator of the Center, the State of New York, or any person, as is approvriate, arising under the Atomic Energy Act of 1954 or under any other law, contract, or agreement for the operation, maintenance, or decontamination of any facilities or property at the Center or for any wastes at the Center." Upon reading the bill it is clear that this sentence is intended to assure that the bill will not be interpreted as affecting the existing rights, obligations, and liabilities of parties involved in the operation of the Western New York Nuclear Fuel Services Center but rather will be limited to the authority to conduct a waste solidification project in accordance with the provisions of the bill. For example the bill cannot be construed to absolve NFS or New York State of liability to members of the public arising out of commercial operation of the reprocessing plant. Nor can the bill be interpreted to alter the respective obligations of New York State and NFS under the existing contracts between those two parties.

The second sentence reads:

"Nothing in this Act shall be construed as affecting any_applicable licensing requirements of the Atomic Energy Act of 1954 or the Energy Reorganization Act of 1954."

This sentence is clearly intended to show that the licensing authority of NRC is neither extended or reduced by the provisions of the bill. This would indicate that the requirement in section 2(b)(3)(B) that DOE and the State of New York jointly submit an application for an amendment to the existing NRC license does not extend NRC's existing authority to license DOE facilities and activities.

The third sentence reads:

"The provisions of this Act shall not apply or be extended to any facility or property at the Center which is not used in conducting the project."

This sentence assures that the bill is not used as a vehicle to provide Federal investments in or responsibility for any facility or property which is not used in conducting the waste solidification project. For example, the state licensed low-level radioactive waste burial ground at the center will not be used in the project; thus the provisions of H.R. 6865 will not apply to that burial ground.

Mr. DINGELL. The Chair is going to recognize counsel again. Mr. WARD. Under section 2(b)(3)(b) of the bill as reportedDr. BATEMAN. As introduced?

Mr. WARD. As reported; as passed by the Senate. You can use either one

Dr. BATEMAN. What is the section again?

Mr. WARD. 2(b)(3)(b).

Dr. BATEMAN. Right.

Mr. WARD. You are directed to submit with the State of New York an application for a licensing amendment. Would this be

subjecting this project to the licensing authority of the Nuclear Regulatory Commission?

Dr. BATEMAN. No, not necessarily. This only describes the requirement that an amendment be submitted. It doesn't treat the question of whether the project itself would be licensed.

Mr. WARD. But before you could do anything under this, the Nuclear Regulatory Commission would have to approve it?

Dr. BATEMAN. To carry out this project, right, the NRC would have to approve a change in the license to allow this project to go forward.

Mr. WARD. Could thereby through this amendment subject to the licensing requirement?

Dr. BATEMAN. Well, I think that is a pretty large jump in terms of what their authority is to license activities of the Department of Energy. I don't agree with that.

Mr. DINGELL. Could you submit to us an opinion on that particular point from General Counsel?

Dr. BATEMAN. Yes, sir.

[The following response was received for the record:]

The Department's views are that the sentence in section 6 of H.R. 6865 which states: "Nothing in this Act shall be construed as affecting any applicable licensing requirements of the Atomic Energy Act of 1954 or the Energy Reorganization Act of 1974" is clearly intended to show that the licensing authority of NRC is neither extended or reduced by the provisions of the bill. This would indicate that the requirements in section 2(b)(3)(B) that DOE and the State of New York jointly submit an application for an amendment to the existing NRC license does not extend NRC's existing authority to license DOE facilities and activities.

Mr. WARD. Is it your position this would be exempt from licensing by the NRC?

Dr. BATEMAN. Yes.

Mr. WARD. Isn't that one of the options being explored in the environmental impact statement?

Dr. BATEMAN. It is being explored, but not in the environmental impact statement. I think that as a matter of policy and existing authority, NRC does not have the authority to license this activity, only the Department. Unless that authority is changed, it would not be licensed by the NRC.

Mr. WARD. Aren't your uranium tailings licensed by the NRC? Dr. BATEMAN. This is a different kind of project. This demonstration project has very substantial R. & D. components, in our view, and as a result, does not come under the authority of the NRC. It is a departmental activity.

Mr. WARD. So you would be opposed to subjecting to NRC licensing?

Dr. BATEMAN. Yes. Although I think, as they and I testified earlier, that we have successfully cooperated on activities in the past, and we believe that this can be repeated in the future with respect to this project, and we assume that it will.

Mr. WARD. Under this bill you are not required to hold any public hearings on the activities that would be conducted on this so this would be totally within your discretion as to what activities? Dr. BATEMAN. Except for NEPA requirements. In fact, we have already held a preliminary public meeting to scope the environmental impact statement required to carry out this project. So I

think there will be substantial public involvement in the activities of the project as we go forward.

Mr. WARD. Who would have the final authority to decide what happens on this site?

Dr. BATEMAN. Who would have the final authority?

Mr. WARD. Yes.

Dr. BATEMAN. Well, with respect to the project authorizedpursuant to whatever the cooperative agreement is that is signedit is the Department of Energy. The Secretary.

Mr. WARD. Would the State be able to veto any action on the site?

Dr. BATEMAN. No.

Mr. DINGELL. Are you sure?

Dr. BATEMAN. That is my understanding. There is nothing in this law that gives them any authority to veto any activity that is carried out by the Department authorized by this legislation.

Mr. DINGELL. Shouldn't we require, however, that they enter an appropriate cooperative agreement to assure that-

Dr. BATEMAN. There is a cooperative agreement here.

Mr. DINGELL. Right.

Dr. BATEMAN. I qualified what I said by saying presumably to carry out the law we have to enter into such an agreement.

Mr. DINGELL. I would assume we ought to make this specific, though, should we not?

Dr. BATEMAN. I am not sure what this refers to when you say we ought to make this specific.

Mr. DINGELL. The requirement.

Dr. BATEMAN. There is a requirement in the law.

Mr. DINGELL. The requirements that Mr. Ward has just referred to, they deal with this matter and with matters which would be brought about under this legislation in such fashion. There would be no inhibitions on the Federal Government in terms of carrying out the responsibilities that the law imposes upon them.

Dr. BATEMAN. Well, again, I think that that is our understanding of what the law provides. As long as the amendment that you are proposing or the change that you are proposing makes it clear that this only applies to this law, I don't see what the difference is. I have trouble understanding the purpose of including language which says that this law doesn't authorize you to do anything which it doesn't authorize you to do.

Mr. DINGELL. That is not what I am saying. I am saying that would require the cooperation of the State of New York, if you will, in a cooperative agreement.

Dr. BATEMAN. It requires cooperation.

Mr. DINGELL. I just like specificity in the contracts I draw. I gather we are being compelled to draw contracts here?

Dr. BATEMAN. The language on pages 2 and 3 of the marked bill say precisely that, to carry out the project, the Secretary shall do a number of things, and item 3 is "enter into a cooperative agreement with the State of New York" pursuant to this law that is mentioned.

Mr. DINGELL. Couldn't that cooperative agreement either require or by failure to make comment, permit the State of New York to approve specific Federal actions?

Dr. BATEMAN. No sir.

Mr. DINGELL. Or by its absence

Dr. BATEMAN. No, the law is clear in the area that the Federal Government preempts State government with respect to these activities. I don't know of any ambiguity.

Mr. DINGELL. I am not aware of anything in this where we would preempt. I find no preemption in the bill.

Dr. BATEMAN. The context in which this is being proposed, the legal context in which this is being proposed is one which the Federal Government has the preemptive authority to engage in these activities. I think that is established. There is nothing in the law to change that.

Mr. DINGELL. That is not the standard doctrine of preemption. The constitutional doctrine of preemption says "where the Federal Government acts in an area that is supreme, the States may not take action to negate the Federal powers.

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Here we are having an agreement executed between the Federal Government and the State and counsel's question and mine, I must say to you, relates to whether or not the State would be compelled to give full cooperation and waive the authorities to in any fashion inhibit Federal actions under that agreement or under any other steps that might be necessary to conduct a cleanup or carry out the act?

Dr. BATEMAN. Well, I think if you are saying does this legislation give the State authority to prohibit or inhibit Federal action to carry out this project

Mr. DINGELL. That is not

Dr. BATEMAN [continuing]. I think the answer is no.

Mr. DINGELL. That is not what I am saying. I am saying it may not negate the State's power, even in a cooperative agreement, or by absence of a statement in the legislation, to in any way inhibit some Federal action under this bill.

I am just wondering if there isn't some specific pronouncement needed on this particular point?

Dr. BATEMAN. If there is, I am not enlightened by this exchange to know what it is. I just don't see what you are getting at. I don't know what your specific proposal is.

Mr. DINGELL. All right, we will inquire into this in more detail. Counsel?

Mr. WARD. Under this provision, if you assumed then that the activities to be performed in the solidification project are not licensed by the Nuclear Regulatory Commission, and at the end of this project the facilities would revert back to the State of New York-I am right so far am I not?

Dr. BATEMAN. Using the facilities for the purpose of carrying out the project at West Valley.

Mr. WARD. And you have conducted activities at the project site, not under license by NRC, including the decontamination and decommissioning. Is that true?

Dr. BATEMAN. At the site, yes.

Mr. WARD. If the decontamination and decommissioning activities which you perform do not meet the criteria of NRC, at the termination of the project the State, when you turn it back, the

State would be responsible for bringing this facility into compliance with its requirements, would it not?

Dr. BATEMAN. Well, this legislation doesn't say what standard the facilities that we use in the sources of solidification will be decontaminated to. It just says that we will decontaminate the facilities that we use in connection with the project. The level to which those facilities are decontaminated is presumably a subject that we will decide.

Mr. DINGELL. Mr. Bateman, the bells over on the floor indicate we have four votes back to back, which will take us a total of about 25 minutes, and counsel advises he has some more questions. We do have another witness. Maybe we can submit to you the questions in writing and you can submit to us the response in writing. Dr. BATEMAN. I will be happy to.

Mr. DINGELL. And we will then excuse you and we will be back in about 25 to 30 minutes to hear our last witness, Mr. Marvin Resnikoff. So we will recess for that long. We excuse you, with our thanks.

[Brief recess.]

Mr. DINGELL. The subcommittee will come to order. Our next witness is Mr. Marvin Resnikoff, of the Sierra Club. We apologize to you for the delay. If you will identify yourself fully for the purpose of the record, to our reporter, we will recognize you for such statement as you choose to give.

STATEMENT OF DR. MARVIN RESNIKOFF, CODIRECTOR, ATLANTIC CHAPTER, SIERRA CLUB RADIOACTIVE WASTE CAMPAIGN

Dr. RESNIKOFF. My name is Marvin Resnikoff, and I am codirector of the Sierra Club Radioactive Waste Campaign, and we are based in Buffalo, N.Y.

The Sierra Club strongly supports the solidification of the highlevel liquid waste at West Valley as necessary for the protection of the public health and safety. We have been active on the West Valley issue since 1970 and have been seriously concerned about the state of the high level waste tank since 1974. We are also concerned that all parties to the West Valley experiment pay their fair share. However, if this bill is passed with the understanding that the site is to be reopened for low-level wastes or spent fuel storage, then we are here to inform the subcommittee that this is neither politically realistic, nor scientifically responsible. If the chairman has been given assurances to the contrary, then he has been misled by New York State officials.

I would like to focus on the inadequacies of the West Valley site for low-level waste burial and the deficiencies of the GAO report in discussing this question which leads the GAO to a different conclusion. Many of our arguments are contained in our critique of the GAO report, "The 1980 GAO Report on West Valley, Scientific Integrity or Political Hackwork?" which I would rather include in the record, with your permission, than read at this time.

Mr. DINGELL. Without objection, that will be inserted in the record at the appropriate place. [See p. 166.]

Dr. RESNIKOFF. Thank you, Mr. Chairman.

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