[Federal Register Volume 60, Number 85 (Wednesday, May 3, 1995)]
[Notices]
[Pages 21793-21798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10902]



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DEPARTMENT OF ENERGY


Office of Civilian Radioactive Waste Management; Nuclear Waste 
Acceptance Issues

AGENCY: Office of Civilian Radioactive Waste Management, Department of 
Energy.

ACTION: Department of Energy final interpretation of nuclear waste 
acceptance issues.

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SUMMARY: This Notice responds to public comments on the Department of 
Energy (DOE) Notice of Inquiry on Waste Acceptance Issues published on 
May 25, 1994 (59 FR 27007). After analyzing public comments received in 
response to the Notice, DOE has concluded that it does not have an 
unconditional statutory or contractual obligation to accept high level 
waste and spent nuclear fuel beginning [[Page 21794]] January 31, 1998 
in the absence of a repository or interim storage facility constructed 
under the Nuclear Waste Policy Act of 1982, as amended. In addition, 
DOE has concluded that it lacks statutory authority under the Act to 
provide interim storage.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Waxman of the Department of 
Energy Office of General Counsel at (202) 586-6975.

SUPPLEMENTARY INFORMATION:

I. Background

    The Nuclear Waste Policy Act of 1982, as amended (Act or NWPA), 42 
U.S.C. 10101 et seq., provides a comprehensive framework for disposing 
of high level radioactive waste and spent nuclear fuel (SNF) generated 
by civilian nuclear power reactors. In general, the Act sets forth 
procedures for selecting a repository site and developing a repository 
for disposal of high-level radioactive waste and SNF and for financing 
the cost of such disposal. Section 302(a) of the Act authorizes the 
Secretary to enter into contracts with the owners and generators of SNF 
of domestic origin (utilities) for the acceptance and disposal of 
SNF,<SUP>1 and stipulates that the contracts provide that the Secretary 
shall take title to the SNF as expeditiously as practicable following 
commencement of operation of a repository. In return for the payment of 
fees, section 302(a) also stipulates that the contracts provide that 
the Secretary, beginning not later than January 31, 1998 will dispose 
of such SNF.

    \1\ In this notice, we limit our discussion to SNF, because that 
is the primary concern of the utilities with whom DOE has executed 
the Standard Contract.
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    DOE implemented the provisions of section 302(a) through 
rulemaking. Following notice and comment, DOE promulgated the Standard 
Contract for Disposal of Spent Nuclear Fuel and/or High Level Nuclear 
Waste (Standard Contract), which set forth the contractual terms under 
which the Department would make its disposal services available. 48 FR 
16590 (April 18, 1983), codified at 10 CFR part 961. Under the terms of 
the final rule promulgating the Standard Contract, all civilian nuclear 
utilities desiring to dispose of SNF signed individual versions of the 
Standard Contract.
    Although the Act originally envisioned that a geologic repository 
would be in operation, and DOE would be prepared to begin acceptance of 
SNF by January 31, 1998, it since has become apparent that neither a 
repository nor an interim storage facility constructed under the Act 
will be available by 1998. DOE currently projects that the earliest 
possible date for acceptance of waste for disposal at a repository is 
2010.
    Accordingly, DOE published the Notice of Inquiry on Waste 
Acceptance Issues (NOI) to elicit the views of interested parties on: 
(1) DOE's preliminary view that it does not have an obligation to 
accept SNF in the absence of an operational repository or interim 
storage facility constructed under the Act; (2) the need for interim 
storage prior to repository operation; and (3) use of the Nuclear Waste 
Fund to offset a portion of the financial burdens that may be incurred 
by utilities in continuing to store SNF at reactor sites beyond 1998. 
Written comments were initially due on or before September 22, 1994. 59 
FR 27007 (May 25, 1994). DOE extended the comment period on the NOI 
until December 19, 1994 to permit additional public comment. 59 FR 
52524 (October 18, 1994).

II. Written Comments

    DOE received 1,111 written responses to the NOI, representing 1,476 
signatories, including utilities (38 responses), public utility 
commissions and utility regulators (26 responses), Federal, state, and 
local governments, agencies, and representatives (23 responses), 
industry representatives and companies (30 responses), public interest 
groups and other organizations (19 responses), and members of the 
general public (975 responses). All written comments received by DOE in 
response to the NOI were carefully reviewed and fully considered. The 
majority of the responses to the NOI addressed the issue of DOE's legal 
obligation to accept SNF beginning in 1998 and asserted that DOE has an 
unconditional obligation to begin accepting SNF from the utilities by 
January 31, 1998.
    DOE previously published a notice of the availability of DOE/RW-
0462, ``Summary of Responses to the Notice of Inquiry on Waste 
Acceptance Issues'' (March 1995). 60 FR 14739 (March 20, 1995). That 
report contains a summary of all the comments received in response to 
the NOI.
    This Notice sets forth DOE's conclusions with respect to the legal 
issues involved in the NOI. Section III below discusses DOE's final 
interpretation of its obligations with respect to the 1998 waste 
acceptance issue, addresses the issue of DOE's authority under the Act 
to provide interim storage, and also contains DOE's conclusions on the 
legal availability of the Nuclear Waste Fund to offset the potential 
financial burdens that may be incurred by utilities in storing SNF on-
site beyond 1998.

III. Final Interpretation of Agency Obligations and Authorities Under 
the Act

    Most of the commenters on the NOI expressed the view that the 
language in section 302(a)(5)(B) of the Act, which provides that ``in 
return for the payment of fees established by this section, the 
Secretary, beginning not later than January 31, 1998, will dispose of 
the high-level radioactive waste or spent nuclear fuel as provided in 
this subtitle,'' 42 U.S.C. 10222(a)(5)(B), creates an unconditional 
legal obligation, beginning January 31, 1998, for DOE to initiate 
acceptance of SNF from utilities under the Standard Contract. According 
to these commenters, DOE's obligation is clear, non-discretionary, and 
not inconsistent with DOE's duty to take title to SNF under section 
302(a)(5)(A) of the Act following commencement of repository 
operations. 42 U.S.C. 10222(a)(5)(A).
    However, some commenters contended that DOE does not have an 
unconditional duty to dispose of SNF beginning in 1998 in the absence 
of an operational repository. They asserted that the obligations to 
take title and dispose of SNF established in subsections (5)(A) and (B) 
of section 302(a) of the Act must be read together and ultimately are 
dependent upon the existence of an operational repository. Based upon 
the entire statutory scheme and the legislative history of the Act, 
these commenters suggested that the January 31, 1998 date does not 
create an obligation to initiate SNF disposal regardless of the 
availability of a repository, but rather indicates the ``sense of 
Congress'' concerning an appropriate target date for arriving at a 
solution to the problem of accumulating high level nuclear waste and 
spent nuclear fuel.
    After considering the views of the commenters, the provisions of 
the Act and its legislative history, and the terms and conditions of 
the Standard Contract, DOE has concluded that it does not have a legal 
obligation under either the Act or the Standard Contract to begin 
disposal of SNF by January 31, 1998, in the absence of a repository or 
interim storage facility constructed under the Act.

A. DOE's Final Interpretation of Its Obligations Under Section 
302(a)(5)

    1. The Act does not impose a statutory obligation on DOE to begin 
nuclear waste disposal in 1998 in the absence of [[Page 21795]] a 
disposal or interim storage facility constructed under the Act.
    Section 302(a)(1) of the Act authorizes the Secretary of Energy to 
enter into contracts for acceptance of title, transportation, and 
disposal of SNF with any person who generates or holds title to spent 
fuel of domestic origin. 42 U.S.C. 10222(a)(1). Section 302(a)(5) 
states that such contracts 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 payment of fees established by this section, 
the Secretary, beginning not later than January 31, 1998, will 
dispose of the high-level radioactive waste or spent nuclear fuel 
involved as provided in this subtitle.

42 U.S.C. 10222(a)(5). DOE's Standard Contract contains a provision 
that reflects this statutory mandate. See 10 CFR 961.11.
    a. Section 302(a)(5)(A), the so-called ``take title'' provision of 
the Act, requires that each contract executed by DOE under the Act 
provide that ``the Secretary shall take title to the high-level 
radioactive waste or spent nuclear fuel involved as expeditiously as 
practicable upon request of the generator or owner of such waste or 
spent fuel,'' but specifically provides that the obligation to take 
title applies only ``following commencement of operation of a 
repository.'' 42 U.S.C. 10222 (a)(5)(A). Thus, the Act is clear that 
DOE is required to take title ``expeditiously,'' but only ``following 
commencement of operation of a repository.'' 42 U.S.C. 10222 (a)(5)(A).
    Section 302(a)(5)(B), the so-called ``dispose'' provision of the 
Act, requires that each contract shall also provide that ``in return 
for payment of fees established 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.'' 42 U.S.C. 10222 (a)(5)(B). While the Act does not define 
the word ``dispose,'' it does define ``disposal.'' DOE believes that 
the words ``dispose'' and ``disposal'' are merely different grammatical 
forms of the same word, and that the Act's definition of ``disposal'' 
also defines DOE's obligation to ``dispose'' under section 302(a)(5)(B) 
of the Act. The Act defines ``disposal'' to mean ``the emplacement in a 
repository of spent nuclear fuel with no foreseeable intent of 
recovery.'' 42 U.S.C. 10101(9). Thus, the mandate to dispose of SNF 
beginning January 31, 1998, like the duty to take title to SNF, 
requires the existence of an operating repository. See H.R. Rep. No. 
491, Part 1, 97th Cong., 2d Sess. at 59 (1982).<SUP>2

    \2\ DOE notes that the statutory language on disposal quoted 
above uses ``will'' rather than the term ``shall'' in setting forth 
the Secretary's duty to dispose of nuclear waste. DOE believes the 
use of the predictive term ``will'' in the disposal provision of the 
Act, rather than the mandatory term ``shall'' which is used in the 
take-title provision, indicates that the January 31, 1998 date 
expresses the sense of Congress as to when the Department should 
strive to have a repository in operation, rather than an 
unconditional legal obligation to initiate acceptance of SNF by a 
date certain.
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    The logic, language, and structure of section 302(a) require that 
the mandate to dispose and the duty to take title must be read 
together. Section 302(a)(1) of the Act, which authorizes the Secretary 
to enter in contracts with utilities ``for acceptance of title, 
subsequent transportation, and disposal of * * * (SNF)'', indicates 
that the duty to accept title and the mandate to dispose are part of a 
sequential process: The Act contemplates that ``taking title'' is a 
predicate to ``disposal''. Similarly, section 123 of the Act provides 
that ``[d]elivery, and acceptance by the Secretary, of any high-level 
radioactive waste or spent nuclear fuel for a repository constructed 
under this subtitle (42 U.S.C. 10131 et seq., the repository subtitle) 
shall constitute a transfer to the Secretary of title to such waste or 
spent fuel.'' 42 U.S.C. 10143. The ``delivery and acceptance'' 
provision of section 123 implements the ``take title'' provision of 
section 302(a)(5)(A), and again contemplates that DOE ``take title'' 
prior to disposal in a repository.
    b. Sections 302(a)(5) (A) and (B) of the Act must not only be read 
together, but also must be read in the context of the entire Act. When 
read in conjunction with other provisions in the Act, these provisions 
clearly do not contemplate nuclear waste disposal by DOE beginning 
January 31, 1998, in the absence of an operational repository.
    The findings and purposes section of the Act states that ``the 
Federal Government has the responsibility to provide for the permanent 
disposal of nuclear waste,'' 42 U.S.C. 10131(a)(4), and that the 
purpose of the Act is ``to establish a schedule for the siting, 
construction, and operation of repositories that will provide a 
reasonable assurance that the public will be adequately protected from 
the hazards posed by high-level waste and such spent nuclear fuel as 
may be disposed of in a repository.'' 42 U.S.C. 10131 (b)(1). As noted 
above, the term ``disposal'' is defined in the Act to mean 
``emplacement of nuclear waste in a repository with no foreseeable 
intent of recovery.'' 42 U.S.C. 10101 (9).
    However, the Act imposes numerous prerequisites on the Department's 
ability to develop a repository and dispose of SNF that demonstrate 
that the Act did not contemplate that DOE would have an unconditional 
duty to begin disposing of SNF in 1998. For instance, the Act provides 
that only Yucca Mountain, in Nevada, is to be characterized as a 
potential repository site, 42 U.S.C 10172, and that DOE may not 
commence construction of a repository at Yucca Mountain unless and 
until the site been found suitable for a repository through the site 
characterization process, 42 U.S.C. 10134. The Act specifically 
recognizes that the Yucca Mountain site may be found unsuitable for 
development of a repository, and states that ``if the Secretary at any 
time determines the Yucca Mountain site to be unsuitable for 
development as a repository, the Secretary shall terminate all site 
characterization activities at such site * * * (and) reclaim the site 
to mitigate any significant adverse environmental impacts caused by 
site characterization at such site.'' 42 U.S.C. 10133(c)(3). Moreover, 
even if Yucca Mountain proves suitable, the Act imposes additional 
conditions on the actual development of the site as a repository. For 
example, the Act provides that the Secretary must decide whether to 
recommend approval of the site to the President; the President must 
determine whether he considers the site qualified; and if the President 
ultimately recommends development of the site to Congress, the host 
state may disapprove that recommendation for any reason at all, in 
which case an entirely new law must be enacted by Congress to override 
the host state's disapproval. 42 U.S.C. 10134 and 10135. Assuming site 
suitability, a favorable Presidential recommendation, and enactment of 
a new law to override any state notice of disapproval, the Act further 
requires DOE to obtain an NRC license to construct and operate a 
repository. 42 U.S.C. 10134(b).
    Each of these statutory conditions for construction and operation 
of a repository represents a Congressionally-created contingency that 
could prevent or delay construction and operation of a repository. 
Given the number of these contingencies, Congress could not have 
intended to impose an unconditional obligation on DOE to take and 
dispose of SNF by a date certain.<SUP>3

    \3\ In addition, as discussed infra, beginning at page 19, the 
Act contained only very limited authority for DOE to provide interim 
storage in the event that a repository is not in 
operation. [[Page 21796]] 
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    2. The legislative history of the Act confirms that both the ``take 
title'' and the ``dispose'' provisions of section 302(a)(5) require an 
operating repository before their obligations attach.
    Subparagraphs (A) and (B) of Section 302(a)(5) were originally part 
of section 124 of H.R. 3809. The House Report on H.R. 3809 stated that 
``Section 124 authorizes the Secretary to contract with utilities or 
other agents requiring use of repositories constructed under this Act 
to provide repository services in exchange for payments by repository 
users to cover program costs.'' H.R. Rep. No. 491, Part 1, 97th Cong., 
2nd Sess. at 58 (1982). The House Report further stated that ``[a]ll 
persons desiring to dispose of high level waste or spent fuel in 
repositories constructed under this subtitle are required to pay a 
ratable portion of the costs of such disposal.'' H.R. Rep. No. 491, 
Part 1, 97th Cong., 2d Sess. at 58 (April 27, 1982). As the quoted 
language indicates, the focus of section 124 was on contracting for the 
disposal of spent nuclear fuel in a repository.
    With regard to what emerged as subparagraph (A) of section 
302(a)(5), the House Committee Report on section 124 of H.R. 3809 
stated:

    Paragraph 4(A) requires that under such contracts the Secretary 
will be required to take title to high level waste or spent fuel, at 
the request of the generator, as expeditiously as practicable 
following the commencement of operation of a repository.

H.R. Rep. No. 491, Part 1, 97th Cong., 2d Sess. at 59 (1982). Thus, 
subparagraph (A) in H.R. 3809, like subparagraph (A) in the Act, 
clearly made commencement of operation of a repository a condition 
precedent to taking title.
    Significantly, the House Committee Report on H.R. 3809 also 
described the source of the current Act's subparagraph (B) in terms of 
the existence of a permanent disposal facility:

    Paragraph 4(B) makes the Secretary responsible for disposing of 
high level waste or spent fuel as provided under this subtitle in 
permanent disposal facilities, beginning not later than January 
1998, in return for the payment of fees established by this section.

Id. at 59. ``This subtitle'' referred to Subtitle A, ``Repositories for 
Disposal of High-Level Radioactive Waste and Spent Nuclear Fuel,'' of 
which section 124 was then a part. Here too, as the underscored 
language and reference to Subtitle A make clear, the obligation 
contemplated depended upon the successful development of a repository.
    The conclusion that section 302(a)(5) of the Act was not intended 
to create an obligation to dispose of SNF unless and until a repository 
had been developed is also supported by a floor statement made during 
the Senate's debate on the Act by the then Chairman of the Senate 
Energy and Natural Resources Committee, a primary sponsor of the Act, 
Senator James McClure. On December 13, 1982, Senators McClure, Simpson, 
Jackson, Johnston and Domenici offered amendment number 4983, which 
struck all the language after the enacting clause of H.R. 3809, and 
replaced it with a Senate version of the proposed legislation. Section 
302 of the Senate amendment would have required DOE to take title and 
store or dispose of nuclear waste no later than December 31, 1996. 
Unlike the House version of H.R. 3809, the Senate amendment made no 
mention of an operating repository. See 128 Cong. Rec. S14,484, S14,501 
(daily ed. Dec. 13, 1982). However, after proposing the Senate 
amendment, Senator McClure then offered--and the Senate accepted--an 
amendment to section 302(a)(5) of the substitute amendment which 
brought the Senate version of that provision into conformity with the 
House version contained in H.R. 3809. Senator McClure described the 
effect of this amendment as follows:

    Mr. President, this amendment amends section 302(a)(5) of the 
substitute amendment to provide that the Secretary of Energy take 
title to high-level waste or spent fuel as expeditiously as 
practicable upon the request of the generator of such waste. In 
addition, this amendment directs the Secretary to begin, not later 
than January 31, 1998, to begin to dispose of the high-level 
radioactive waste or spent nuclear fuel from those generating such 
waste. Under the substitute amendment, there was some concern that, 
in directing the Secretary to take title to and dispose of such 
wastes no later than December 31, 1996, we might not be giving the 
Secretary enough flexibility to tailor his schedule for accepting 
such wastes to the availability of a repository. This amendment 
simply directs the Secretary to take title to such wastes as 
expeditiously as practicable, upon the request of the generator of 
those wastes, after commencement of repository operation.

128 Cong. Rec. S15,657 (daily ed. Dec. 20, 1982). This summary of what 
section 302(a)(5) ``directs'' indicates that Congress did not intend to 
establish an inflexible schedule and that it intended to ``tailor'' 
DOE's obligation for accepting SNF to the availability of a repository, 
albeit that it intended for DOE to proceed ``as expeditiously as 
practicable.''<SUP>4

    \4\ A few commenters claimed that certain statements from the 
legislative history of the monitored retrievable storage provisions 
of the Act support their assertion that DOE has an unconditional 
duty to accept SNF for disposal beginning in 1998. They cited the 
following statement of Senator Bennett Johnston, made during the 
floor debate on the 1987 amendments, as evidence of Congress' intent 
that the Department has an unconditional obligation to begin 
accepting waste in 1998:
    The MRS is not an alternative to at-reactor storage, and it is 
not a substitute for a repository. Utilities are required to take 
care of their own storage until 1998, but the Federal Government has 
a contractual commitment to take title to spent fuel beginning in 
1998. An MRS will better ensure that the Department is able to meet 
this contractual commitment to accept spent fuel beginning in 1998.
    133 Cong. Rec. S16,045 (daily ed. Nov. 10, 1987). The following 
statement of Senator James McClure from the same debate was also 
relied upon by a commenter:
    Furthermore, we have an option to proceed with the construction 
of a monitored retrievable storage (MRS) facility for receipt and 
temporary storage of fuel by 1998 and thereby meet the Government's 
statutory obligation to begin taking spent fuel by that date.
    133 Cong. Rec. S15,795 (daily ed. Nov. 10, 1987).
    DOE believes that these 1987 statements do not supplant the 
foregoing analysis of what Congress intended when it enacted Section 
302(a)(5), because they were not contemporaneous with passage of the 
Act in 1982. Post-enactment views by individual legislators are 
entitled to little weight in construing a statute enacted by a prior 
Congress.
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    3. The Standard Contract, which was promulgated through notice and 
comment rulemaking, implements the provisions of section 302(a)(5) of 
the Act.<SUP>5 Article II of the Standard Contract, entitled ``Scope,'' 
states that ``[t]he services to be provided by DOE under this contract 
shall begin, after commencement of facility operations, not later than 
January 31, 1998 and shall continue until such time as all (nuclear 
waste from the contracting utilities) has been disposed of.'' 10 CFR 
961.11, Art. II.

    \5\The U.S. Court of Appeals for the District of Columbia 
Circuit has held that the Standard Contract should be treated as 
more akin to a regulation, rather than a traditional contract, since 
its terms were established by rulemaking following notice and 
comment. Commonwealth Edison Co. v. United States Department of 
Energy, 877 F.2d 1042, 1045 (D.C. Cir. 1989).
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    Some commenters asserted that the language in Article II of the 
Standard Contract that ``(t)he services to be provided by DOE under 
this contract shall begin * * * not later than January 31, 1998,'' 
either represents DOE's recognition of, or itself creates, an 
unconditional legal obligation to begin accepting nuclear waste by 
1998. However, the Standard Contract contains the specific condition 
that the services to be provided by DOE ``shall begin after 
commencement of facility operations.'' 10 CFR 961.11, Art. II.<SUP>6 
One of the recitals in the preamble to [[Page 21797]] the Standard 
Contract similarly indicates that the Department's obligations are 
conditioned upon the existence of an operational storage or disposal 
facility constructed under the Act:

    \6\ Under the Standard Contract, the term ``DOE facility'' is 
defined to mean either a disposal or interim storage facility 
operated by or on behalf of DOE. See 10 CFR 961.11, Art. I.
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    Whereas, the DOE has the responsibility, following commencement 
of operation of a repository, to take title to the spent nuclear 
fuel or high-level radioactive waste involved as expeditiously as 
practicable upon the request of the generator or owner of such waste 
or spent nuclear fuel.

10 CFR 961.11, Preamble. The Standard Contract, like the Act, thus 
predicated DOE's obligation on the development of a facility under the 
Act.
    This reading of the Standard Contract was confirmed by a statement 
of former Secretary Donald Hodel in 1984, the year following the 
promulgation of the Standard Contract. In a written response to a 
question posed in a letter from Senator Bennett Johnston, Secretary 
Hodel stated:

    The Department is authorized to implement the Act through 
contractual commitments. To this end, the Department plans to 
incorporate into its contracts provisions which specify the minimum 
amount of spent fuel and waste which the Department will be 
obligated to accept, not later than January 31, 1998. Since these 
contracts have not yet been modified, it would be premature for the 
Department to speculate on particulars that might ultimately be 
incorporated in any or all of the contracts. However, it is my 
intention that this commitment in the Contracts, together with the 
overall thrust of the Act, will create an obligation for the 
Department to accept spent fuel in 1998 whether or not a repository 
is in operation.

    Although former Secretary Hodel stated that he intended for DOE to 
assume an unconditional obligation to begin accepting SNF in 1998, he 
also recognized that the terms of the Standard Contract would have to 
be changed in order to create such an unconditional obligation. 
However, the Department never undertook a rulemaking to modify the 
Standard Contract. Thus, this essentially contemporaneous construction 
of the Standard Contract reinforces the conclusion that the Contract 
did not and does not create, or recognize, an unconditional 
obligation.<SUP>7

    \7\One commenter on the NOI criticized DOE's denial of an 
obligation to begin accepting SNF from domestic utilities on the 
ground that DOE has accepted ``foreign SNF'' for storage at its own 
facilities. However, the authority for acceptance of foreign SNF 
arises under the Atomic Energy Act, as amended, not under the 
Nuclear Waste Policy Act. The foreign fuel in question, which is not 
commercial SNF from domestic utilities but much smaller fuel 
elements from research reactors, contains highly enriched uranium 
that must be controlled for nuclear nonproliferation purposes. It is 
because of these nonproliferation concerns that the United States 
government has in some circumstances received foreign SNF under the 
Atomic Energy Act in order to remove it from international commerce. 
No Nuclear Waste Fund monies are (or could be) used for this storage 
activity.
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B. Interim Storage Authority

    The Department recognizes that some utilities are running out of 
on-site storage capacity and will have to provide additional storage 
capacity until a repository or interim storage facility is available. 
In response to the NOI, a number of comments stated that DOE should 
provide interim storage. However, DOE has concluded that it has no 
authority under the Act to provide interim storage in present 
circumstances.<SUP>8

    \8\DOE's multi-purpose canister program is part of DOE's overall 
transportation strategy for disposal of SNF, and the use of Nuclear 
Waste Fund monies to support this work is authorized by Section 
302(d)(4) of the Act, which provides that the Secretary may make 
expenditures from the Nuclear Waste Fund for any costs incurred in 
connection with the transportation of SNF.
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    Interim storage by DOE was contemplated by the Act in only two 
situations, neither of which currently applies. Under the Act, DOE had 
authority to offer a limited interim storage option. See 42 U.S.C. 
10156. However, that authority has, by its express terms, expired. 
Under the Act, DOE also has authority to provide for interim storage in 
an MRS. That authority also is inapplicable, however, because the Act 
ties construction of an MRS to the schedule for development of a 
repository. See 42 U.S.C. 10165, 10168. Because these are the only 
interim storage authorities provided by the Act, and because the Act 
expressly forbids use of the Nuclear Waste Fund to construct or expand 
any facility without express congressional authorization (42 U.S.C. 
10222(d)), DOE lacks authority under the Act to provide interim storage 
services under present circumstances.

C. Use of Nuclear Waste Funds to Offset Financial Burdens to Utilities 
of Storing Nuclear Waste Beyond 1998

    Section 302(d) of the Act states that the Nuclear Waste Fund may be 
used only for radioactive waste disposal activities under titles I and 
II of the Act, including a number of enumerated activities.<SUP>9 42 
U.S.C. 10222(d). Paying for the costs of on-site storage is not 
enumerated in that provision.

    \9\Section 302(d) further provides that no funds may be spent on 
construction or expansion of any facility unless expressly 
authorized.
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    Although the Act thus does not provide for use of the Nuclear Waste 
Fund to help utilities defray costs of on-site storage, if the Act were 
construed unconditionally to require DOE to begin providing disposal 
services in January of 1998 notwithstanding DOE's inability to do so, 
utilities might be entitled to financial relief under the terms of the 
Standard Contract. Since the Act itself does not address the 
consequences of a failure by DOE to perform its obligations under the 
Act, it has fallen to DOE as the administering agency to fill the gap 
left by Congress. DOE has done so through the Standard Contract, which 
expressly addresses the situation in which performance by either party 
to the contract is delayed.
    Under Article IX, entitled ``DELAYS,'' the Standard Contract 
provides that neither party shall be liable for damages in the case of 
unavoidable delay and that the parties will adjust their schedules, as 
appropriate, to accommodate such delay. Art. IX, A. In the case of an 
avoidable delay, however, the Standard Contract provides that the 
``charges and schedules specified by this contract will be equitably 
adjusted to reflect any estimated additional costs incurred by the 
party not responsible for or contributing to the delay.'' Art. IX, B. 
Were DOE deemed to have an unconditional obligation to begin providing 
disposal services in 1998, we have concluded that the Delays Clause 
would be applicable in the event of a failure to perform. Were the 
Delays Clause to be invoked, Article XVI of the Standard Contract 
establishes the process for resolving disputed questions of fact (e.g., 
whether a delay has occurred and, if so, whether it was avoidable or 
unavoidable). Article XVI provides for initial resolution of disputed 
facts by the designated Contracting Officer, with a right of appeal to 
the DOE Board of Contract Appeals. In sum, it is the Department's view 
that, were the Act to be construed to impose an unconditional 
obligation to begin to provide disposal services in 1998, the 
appropriate remedy would be the contractual remedy under the Delays 
Clause and Article XVI.

D. Availability of Alternative Dispute Resolution Procedures

    The Department believes that important public and private interests 
are implicated by the need for orderly financial and technical planning 
with respect to the Department's inability to accept SNF in 1998. There 
are also equitable considerations that may argue for some form of 
relief to help offset costs incurred as a result of the Department's 
inability to begin acceptance of SNF in 1998. The Department recognizes 
that these equitable and public interest considerations may be better 
addressed [[Page 21798]] and resolved through settlement discussions 
than through litigation or through the process established by Article 
XVI of the Standard Contract. Therefore, in accordance with the 
Department's commitment to increased use of alternative dispute 
resolution procedures, the Department is prepared to discuss with 
utilities and other parties to the pending litigation (Northern States 
Power Company v. U.S. Department of Energy, Nos. 94-1457, 94-1458, 94-
1574 (D.C. Cir., 1994)) financial or other assistance that may be 
appropriate in light of the Department's inability to begin providing 
disposal services in 1998.

    Issued in Washington, D.C., April 28, 1995.
Daniel A. Dreyfus,
Director, Office of Civilian Radioactive Waste Management.
[FR Doc. 95-10902 Filed 5-2-95; 8:45 am]
BILLING CODE 6450-01-P