CURRENT ACTIVITY REPORT

Senator DOMENICI. Let me try one more thought on it that is kind of disturbing to me. Basically the notion of consultation and cooperation evolved out of a previous law, which I was involved in along with some of this staff that is here with me and has been at it for years called consultation and concurrence, which ended up consultation and cooperation.

Mr. RUSCHE. Yes, sir.

Senator DOMENICI. And the consultation and cooperation ends up with that part that we thought of as concurrence, which was effectively a veto if there was nonconcurrence for valid reasons, it ends up with the ultimate concurrence part being vested up here if the State decides that they don't want it. But we had always envisioned that the plan for this whole relationship between the State and the Department would be a written agreement, which would add various milestones and goals with reference to the program. I am somewhat concerned that the States are focusing on the mission plan and the document as being the most important element of their relationship with the Federal Government.

Is my impression right that they are not putting the same energy into the negotiations on a binding, written agreement which was called for under the act? I thought that was the way we were going to spell out the various goals and critical points in the evolution in a way that was relevant to the State and which would permit the answering of questions pursuant to the agreement at various times in a scientific manner with a covenance as to how they would go about answering, and we even had arbitration as a possible solution to some disagreements on the scientific end.

Am I reading it wrong that the States are not interested in that aspect as much as they are the broader plan that is the mission plan?

Mr. RUSCHE. Mr. Chairman, it is my opinion based again on this short period that the States are interested in both activities. I think the consultation and cooperation agreements which we are working diligently to put in place, we have one that is near ready for signature by both the Department and the State, but there remain two or three crucial issues that have not yet been resolved and it may take some time to resolve.

I think in light of this, since that document would have considerable effect and do some of the very same things that you are talking about, in the meantime States have focused their attention on the mission plan as a right and proper place to determine what our plans are. I think when we get to the discussion of the mission plan it would be very valuable for us to try to distinguish between a plan and a program statement and taking these all together, I think we will finally wind up with a set of documents and arrangements which will make for a very effective relationship.

I want to compliment the States already, that even though we have not reached those States of finality in either sets of documents, we have managed to establish good working relationships. I am sure some of the States would argue that they are not as good as they would want, but I believe we are continuing to make progress. So I would rather not focus attention on the defects but rather on the potential for both of them being effective in the future.

Senator DOMENICI. Might I ask, are you familiar with the detailed agreement between the State of New Mexico and the Federal Government with reference to the waste isolation pilot project, even though that is not civilian and it is not high level waste? It is a consultation and concurrence agreement.

Senator DOMENICI. You are familiar with it?

Mr. RUSCHE. In fact, you may recall that you and I had discussions on that in one of my other existences, so I have had some contact with it. I am not today prepared to discuss it in detail.

Senator DOMENICI. I did not mean that. I just think that it— Mr. BUSCHE. But it does offer some very real potential and guidance, and we can learn from that.

Senator DOMENICI. That is all I meant. If somebody thinks you cannot write down in an agreement the difficult concepts that have to be written down, they were written down by lawyers and scientists in that document.

Mr. RUSCHE. And I think we can. I think we will find that as soon as these last two issues are drawn into sharp enough focus to determine just how we deal with them in the long term that we will be able to move ahead.

Senator DOMENICI. Thank you very much.

Mr. RUSCHE. Thank you, Mr. Chairman.

Senator DOMENICI. Steven Frishman, director of Nuclear Waste for the Governor's office for the State of Texas. Welcome. Do you have a written statement?

Mr. FRISHMAN. Yes, I do. I believe you have a copy of it.

Senator DOMENICI. In the event you do not read it all we will make it a part of the record. Thank you for coming.

STATEMENT

NUCLEAR

OF STEVEN FRISHMAN, DIRECTOR, WASTE PROGRAMS OFFICE, OFFICE OF THE GOVERNOR, STATE OF TEXAS, AUSTIN, TX

Mr. FRISHMAN. Thank you, Mr. Chairman. My name is Steven Frishman. I am director of the Nuclear Waste Programs Office in the office of the Governor of Texas.

I appreciate the opportunity to comment on this amendment, S. 2846. As you are probably aware, the language is not entirely new. In fact, it appeared only without specific reference to sections of the bill near the end of the debate on S. 1662 in 1982. That provision was deleted before passage of the bill by the Senate. Senator Stafford at that time questioned whether the existence of that or the failure of that language to exist would result in precluding recognized rights of States. Senator Stafford was assured by Senator Simpson and acknowledged that assurance that, no, this did not preclude the existing rights of States. We agree with that position of Senator Simpson.

We believe that the amendment as it is now presented would serve, rather than expand the rights of States, would actually serve to limit the rights as was interpreted by Senator Cochran. We also have a problem with the use of the word exclusive, and it could easily lead to the conclusion that the intent of the word exclusive would be sole or only. We find this conclusion to not be justified,

given that there are numerous other provisions in the act, outside of the enumerated sections of the amendment, that refer specifically to participation of affected States and Indian tribes.

Just a few examples are in section 301(b) regarding mission plan interactions; section 113(a) regarding consultation on site characterization; section 113(b) onsite characterization plans, and so on. We are further concerned-you raised the issue with Ben Rusche of written agreements-we are further concerned that this could even impact the scope of content of the written agreement that is provided for in section 117(c) by restricting the provisions of the agreement to those explicitly defined or described in sections 115 to 118. We feel that the written agreement should not be so constrained. This position seems to be supported by the general spirit of consultation and cooperation within the Nuclear Waste Policy Act.

During the months since adoption of the act, we have found the degree of flexibility offered by not placing specific bounds on participation of States and tribes to be beneficial in implementation of the act. A couple of examples, one was at least mentioned already. The first has to do with the extended consultation that was undertaken in development of the repository siting guidelines, which are required under section 112(a). This, I believe, has resulted in improvements in both the substance and the process of the guidelines which have now received the concurrence of the NRC.

We are not fully satisfied with the final product that received that concurrence, but we are encouraged that the guidelines are at least—or at least indicate a sensitivity to applicable State and Federal laws, other than the Nuclear Waste Policy Act. Also, as was mentioned earlier, the act does not require a draft of the environmental assessments under section 112, but by not having constraint placed on the Department, as we think this amendment may constrain them, the Department was able to make a commitment for the draft which we think is a necessary step, whether required by the act or not, in developing the environmental assessments that will ultimately support nominations.

In short, we do not see that the proposed amendment provides any further assurances of State and Indian tribe participation than already exists in the act and are implicit in the DOE High Level Waste Program. As also mentioned, the proposed amendment can be interpreted to greatly limit participation and the flexibility needed by all parties to carry out effective participation and consultation.

We are also concerned that if the amendment is adopted, it could be interpreted to refer to State laws that were enforced before passage of the act, as was mentioned earlier. This interpretation could preclude States in the course of gaining experience with the program and its authorities from enacting appropriate legislation addressing legitimate State concerns and authorities at any time. For example, since passage of the Nuclear Waste Policy Act, the Texas Legislature has exercised its authority in ground water protection by adopting legislation regulating the construction of mine shafts through underground waters, in order to protect the quality and the quantity of the valuable aquifers that may be impacted either by the DOE Program or by any commercial mining in the State.

The State has recognized authority in this area of responsibility and there should be no Federal action that would usurp this legitimate responsibility of the State.

The proposed amendment should be removed from consideration for an additional reason. The act as it stands represents a number of years of time and effort and careful negotiation of its provision. We grant that there are in the act some technical errors that, while not critical now, will require repair at some time, and some schedule provisions have already proven to be unrealistic. But we share with many others the view that reopening the Waste Policy Act to debate of any of its provisions is premature and may result in upsetting the delicate balance created in the act for relations among the affected parties.

Without this well-considered balance of provisions for State and Indian tribe participation contained in the act, the already difficult job of managing and safely disposing of high level nuclear wastes will become substantially more difficult and maybe even impossible. If we thought that the proposed amendment would further that balance in a clear and substantive way, we would be here supporting it and be willing to face dealing with the additional burden of other possible amendments disrupting the overall balance of participation woven into the act. The proposed amendment does not justify the potential risks of reopening the act.

All parties who have been involved with this first approximately 18 months of implementation of the Nuclear Waste Policy Act have been impressed with the flexibility it provides in participation and consultation. In our view, this has been to the benefit of the overall program and certainly does not favor any particular interest as is readily seen in the history of debate through this early period of implementation.

In conclusion, we urge that the proposed amendment be deleted from S. 2846 for the following few reasons: One, it does not seem to serve the interests of affected States or Indian tribes;

Two, it could place limitations on the relationships between affected States and Indian tribes and the Federal Government at a time when it is critical to the waste program that all parties be able to deal with problems in a manner that is responsive to the purposes of the act and yet not overly constraining on any part.

And three, this could result in further debate of other provisions of the act resulting in amendments that would be disruptive of a carefully balanced program that, as might be expected, is feeling its way toward an acceptable solution to the Nation's high level waste problems.

In this first of its kind effort, we are all seeking means to improve the process and the result, but at this time it is premature to consider amendments that are not fully understood to benefit the purposes of the act and may, in fact, disrupt a process that through experience we are all finding has the attributes of being sensitive to needs and rights of parties while not losing sight of its long-term mission and goals.

I appreciate the opportunity to present this testimony and would be pleased to attempt to answer any of your questions. Thank you. [The prepared statement of Mr. Frishman follows:]