I am writing concerning a provision, contained in legislation authorizing funds for fiscal years 1984 and 1985 for the Nuclear Regulatory Commission that is being considered by the Senate Committee on Environment and Public Works, which would affect the rights of a State or Indian tribe to participate in the planning, siting, development, construction, and operation of a civilian nuclear waste repository or a retrievable, monitored storage facility. The Department of Energy opposes adoption of such legislation. First, the Nuclear Waste Policy Act of 1982 (the Act) represents a hard-won compromise achieved after literally years of consideration and debate. It would be premature to amend the Act and possibly upset its finely-tuned and balanced provisions. Second, I believe the provisions of the Act relating to consultation and cooperation with the affected States are working well and see no need for amendment at this time. Ironically, by providing that the provisions of title I of the Act constitute the exclusive rights of participation by a State, the amendment could preclude our present informal consultation and cooperation arrangements because the Act makes no provision for arrangements other than full and formal written agreements. The Office of Management and Budget advises that, from the standpoint of the President's program, there is no objection to the submission of these comments for the consideration of the Senator DOMENICI. I noticed the distinguished Senator, Senator Cochran, has arrived. Would you like to speak to this issue? We are expecting you and we would be delighted to hear from you right now. Senator COCHRAN. Thank you, Mr. Chairman. I appreciate that. Senator DOMENICI. You wait, I have some questions. Let's proceed with the Senator. STATEMENT OF HON. THAD COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI Senator COCHRAN. Mr. Chairman, I appreciate very much your convening this hearing and also for the purpose of your consideration of the amendment proposed by the distinguished Senator from Vermont, Mr. Stafford, giving us an opportunity to review his suggestion. I have a prepared statement, Mr. Chairman, which I would ask be made a part of the record in its entirety. Senator DOMENICI. Without objection, it is made a part of the record. Senator COCHRAN. I will attempt to summarize from that prepared statement to highlight some of the concerns that I have and that others have in the State of Mississippi about the subject before the committee. Specifically, with respect to the Stafford amendment, Mr. Chairman, there seems to be an intent to expand the rights of States to participate in the decisionmaking process with regard to siting, developing, constructing, and operating nuclear waste repositories, but my reading of the language indicates that in spite of that intent, there may be a limitation of States participation rights if this amendment is adopted. I would suggest that a very careful review needs to be undertaken by the subcommittee of that language. What worries me most is the use of the term "exclusive rights." The amendment proposes to establish certain exclusive rights, specifically those provided in sections 115, 116, 117, and 118 of the Nuclear Waste Policy Act with the exception of any recognized rights under existing law. Those are rights that are specified. They give the State the right to have access to timely and complete information, for example, of plans on site characterization, development, and design, the right to be consulted, and there is no doubt that these rights are crucial for any State in which a repository is proposed, but should they be considered as the exclusive rights of the States to participate in planning and siting and constructing, then I think that would be very objectionable. And the reasons for that include the following, that this could potentially deprive the States of an important participation right provided in other sections of the act. In section 112, for example, there is a very important right that is given to the States to review and comment on the environmental assessments, which provide the basis for the recommendations for site characterization. This section permits the States to participate in local public hearings on the environmental assessments. It entitles them to notification of site nomination. It appears to me therefore that this ammendement would abrogate those important rights of participa tion. Also, the amendment could prohibit the Department of Energy from exercising the discretion to allow State review and participation not required by law. The Department of Energy has undertaken on a voluntary basis to permit review by the States of the draft chapters of the environmental assessment. This action is welcomed, especially because in some instances in the past there seems to have been a factual withholding of policy information and some delays in providing information to States. And I think it is an indication of the Department's interest to cooperate to see that there is an encouragement of sharing of information. Finally, the amendment could render ineffective any State law not in effect at the time of the enactment of the Nuclear Waste Policy Act, and that worries me, Mr. Chairman. Our State enacted statutes since the passage of the act that would be applicable to the siting and construction of a repository in the State. Permits would be required under new State laws for transportation of nuclear waste. That is an important exercise of State power that could be abrogated and specifically prohibited if this amendment is approved. I think that the heart of any consideration should be the tendency on the part of Congress to encourage more participation by the States in the process, Mr. Chairman. So I am hoping we would not adopt or your subcommittee would not recommend the adoption of any change in Federal law which would give a signal that the Federal Government is not interested in State participation. The fact of the matter is that in the Nuclear Waste Policy Act, every effort was made to give States a right to participate, give the public the right to have documents reviewed for the purpose of satisfying themselves that every effort was being made to safeguard the welfare and safety of the general public, particularly in a State where there was a possibility that a site could be selected. So, Mr. Chairman, those are some of my concerns that I wanted to express to the subcommittee. I really appreciate your inviting me to be here today and to testify. I think that we ought to also have hearings-I do not know whether this is your subcommittee's responsibility or maybe some other subcommittee's responsibility— have hearings on the mission plan. I know that was a subject of some notice that said there could be discussion of that at this hearing and I will not presume to undertake a discussion of it, but just to say that there are some very real concerns about the mission plan in my State, particularly if this is going to serve as a factual basis for further decisionmaking with respect to siting of a repository. There are some instances in the mission plan where there is not a full accurate reflection of relevant material that ought to be considered in that process, and that concerns me and it concerns my State officials too. I have some statements which I would like to have included as an addendum to my testimony, a statement of policy of the State of Mississippi and a letter from the Department of Energy and Transportation giving a description of some concerns on the part of State government. If I could have those included in the record, Mr. Chairman, along with some statements of citizens in the State of Mississippi, I would appreciate it very much. Senator DOMENICI. They will be made a part of the record. [The prepared statement and additional material submitted by Senator Cochran follow:] STATEMENT OF THAD COCHRAN UNITED STATES SENATOR Mr. Chairman, I appreciate the opportunity to present to the Subcommittee on Energy Research and Development my views, and those of Mississippians, in opposition to the proposed Stafford Amendment to the Nuclear Waste Policy Act. The Stafford Amendment proposes to establish as the exclusive rights of participation by an affected State or Indian Tribe in the planning, siting, development, construction, and operation of a repository, the rights provided in Sections 115, 116, 117, and 118 of the Nuclear Waste Policy Act, with the exception of any recognized right under existing law. The intended thrust of this amendment seems to be the expansion of state participation rights by providing for the federal recognition of state laws in effect at the time of enactment of the Nuclear Waste Policy Act. I am concerned, however, that passage of the amendment will result in the unintended restriction of state participation rights by establishing certain "exclusive rights." I do not believe that Congress intends these rights to be exclusive. The rights set forth in Sections 115 118 include: --the right of a State or Indian Tribe to submit to the Congress its notice of disapproval of a repository site designation located in such state or reservation; --the right to financial and technical assistance to review and monitor site characterization activities and to mitigate the impact on the state of the construction of a repository; --the right to timely and complete information regarding determinations and plans on site characterization, development, and design; and |