Frank Murkowski

Mr. MURKOWSKI

Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. MURKOWSKI. Mr. President, I suggest the absence of a quorum.

Mr. MURKOWSKI

Mr. MURKOWSKI. Mr. President, I ask for the yeas and nays.

Mr. MURKOWSKI. Mr. President, my understanding is that the Bingaman amendment is next; and there is 1 minute on both sides, I believe Senator Bingaman and then Senator Wyden.

Mr. MURKOWSKI. I move to reconsider the vote.

Mr. MURKOWSKI. Mr. President, it is my understanding the Senator from Oregon wants to speak. We have about 6 minutes left. I yield 2 minutes to the Senator.

Mr. MURKOWSKI. I would certainly agree with my friend from Kentucky, and I hope he will agree after a short review of the history that that is exactly what happens. Let me give you my version of the record because it goes back to a legacy of broken promises starting in 1984. We had a commitment, a clear promise by Don Hodel, then Secretary of Energy, affirming that the Energy Department is obligated to begin accepting spent nuclear fuel from nuclear powerplants in 1998 whether or not a permanent disposal facility is ready. Now, we went on a few years and got into 1987, a 3-year delay. Congress then, this body, designated Yucca Mountain, NV, as the only site to be evaluated. Meanwhile, the Department of Energy announces a 5-year delay in the opening date for a disposal facility from 1998 to the year 2003. They did not ask for any money. They did not mention money. They simply announced a 5-year delay in the opening day. In 1989, another delay, another promise. The Department of Energy announces another delay in the opening date for a permanent disposal facility until the year 2010. We are told now, of course, by the most recent Secretary of Energy, Hazel O'Leary, that that cannot be ready until the year 2015. We went on in 1991 with mounting concerns. The first sign of concern appears over the Energy Department's ability to meet its obligations under the Nuclear Waste Policy Act. The State of Minnesota tells the Energy Secretary, James Watkins, that it is ``highly probable that your department will experience significant delay in meeting its obligation to begin taking high-level radioactive waste in 1998.'' Nothing about money. So we move into 1992. More promises. Secretary Watkins tells Minnesota's DOE, and I quote, ``The DOE is committed to fulfill the mandates imposed by the Nuclear Waste Policy Act. The department has sound, integrated programs and plans that should enable us to begin spent fuel receipt on an MRS, a monitored retrievable, storage facility in 1998.'' We move to December 1992, another promise. Energy Secretary Watkins acknowledges that attempts to find a volunteer host for an MRS facility have not succeeded. He promised to do whatever is necessary to ensure that the Energy Department is able to start removing spent fuel from nuclear power sites in 1998. I do not know what my friend would think of the moral obligation, but it is interesting to note that Secretary O'Leary in May 1993 affirms that the Energy Department ``has an obligation'' to electric utilities and their customers. ``If it does not have a legal obligation, then it has a moral obligation.'' That really does not mean much other than acknowledgement of just a moral obligation. But in May 1994 there was a notice of inquiry. DOE published a notice of inquiry to address the concerns of affected parties regarding the continued storage of spent nuclear fuel at reactor sites beyond 1998. The energy agency says, ``Preliminarily, it's our view that it does not have a statutory obligation to accept spent nuclear fuel in 1998 in the absence of an operational repository or suitable storage facility.'' That is the first time they denied, if you will, that they had a statutory obligation to accept the spent fuel. Well, then we move over to May 1994 and 14 utilities and 20 States bring suit to the Department of Energy. A coalition of 14 utilities and public agencies in 20 States file separate but similar lawsuits seeking clarification of the Energy Department's responsibility to accept spent fuel beginning back in 1998. Then we go to April 1995. No obligation to take the fuel, the Department of Energy says. No obligation on the one hand. Previously, they said they did not have a statutory obligation. In April, they said the Federal Government has no legal obligation to begin accepting high- level waste in 1998 if a repository is not open, according to the DOE's interpretation of the Nuclear Waste Policy Act and contracts with utilities. Still no mention about funding. In July 1996 we have a different view, a very different view. In July 1996 the court ruled, and this is the U.S. Court of Appeals, that the Department of Energy's obligation to take the fuel in 1998 is a legal as well as a moral obligation. So there we have the dictate of the court, which I think addresses the concern of the Senator from Arkansas. In December 1996, the Department of Energy does not challenge the court's ruling and admits failure. The DOE acknowledges that it will not be able to meet its commitments to take the waste in 1998. In January 1997, the DOE's liability is addressed and 46 State regulatory agencies and 33 electric utilities file new action for escrow of nuclear waste funds and to order the DOE to take the spent fuel in 1998. In March 1997, the court rejects the Department of Energy's motion to dismiss before it is filed. So that is the last legal action. The court tells the DOE that a motion to dismiss would be ``inappropriate in this case'' and sets the case for damages for a hearing on the merits. Mr. President, a deal is a deal.

Mr. MURKOWSKI. I think it is the responsibility of the court to make the determination of what the contract says, not the Senator from Arkansas or the Senator from Alaska or the Senator from Kentucky. And that is what the court has done. And if the Senator will bear with me while I go through the history, I think he will agree.

Mr. MURKOWSKI. I appreciate the views of my friend from Kentucky.

Mr. MURKOWSKI. That takes care of both Senators.

Mr. MURKOWSKI. I would be happy to yield for one question.

Mr. MURKOWSKI. Mr. President, I appreciate the persuasive arguments of my friend from Arkansas who is a well-known lawyer. I happen to be a banker and not nearly as well known. But I know what a contract is. A contract is a binding commitment of performance. And the question that the Senator from Arkansas raises in his amendment is the sanctity of that contract. This is a subject of pending litigation. I think it is inappropriate to interfere in the sanctity of the Federal contracts. We have a fair administrative process. The courts are involved in this. I think it is important to look at a little history because the Department of Energy has been aware of its obligation since 1982. My reading of the Bumpers amendment suggests that it is essentially representing a determination now by Congress that the Department of Energy is faultless in its default. I think it is the court's job to make that determination. In my opinion, the Department of Energy has followed a consistent course of delay, a consistent course of avoidance including their failure to ask Congress for any additional funds or authority needed to meet the obligation. The Senator from Arkansas suggests that it is the responsibility of the Congress because Congress did not appropriate any money. I am not aware that the Department of Energy ever asked for any money. Let us look at the history because I hope that my colleague from Arkansas, when he clearly listens, will agree that this legacy of broken promises is something that is reprehensible relative to a responsible department addressing its contractual commitment. I think it sets, if you will, a norm on the issue of contracts. If a contract with the Government is not binding, it sets a pretty poor example, a pretty poor example for youth and a pretty poor example of how Government meets its obligations.

Mr. MURKOWSKI. We would be happy to provide you with that. But in the interest of moving this now, we will move the one that there is no objection to. Amendment No. 40 to Amendment No. 26 (Purpose: To prevent ``double counting'' in the determination of the fee)

Mr. MURKOWSKI. I advise my friend from Nevada that one of amendments is satisfactory to us. We have a second degree on the second amendment which has been worked out I believe with the Senator from New Mexico. Is the Senator aware of the second degree?

Mr. MURKOWSKI. I will accept that. A Bingaman amendment, we anticipate--we are not sure the Senator is on the floor at this time. We will have to wait for Senator Bingaman. And we have a Domenici amendment that we are prepared to take on this side. I believe there may be an objection from the other side. That could be held over until Monday. One of the Domenici amendments we are prepared to take at this time.

Mr. MURKOWSKI. Mr. President, for the benefit of all Senators, it is my understanding that we very likely can dispose of three amendments in the balance of the evening. One, as I understand it, is going to be offered by Senator Bumpers from Arkansas. I might ask how much time he will require.

Mr. MURKOWSKI. Mr. President, I move to reconsider the vote.

Mr. MURKOWSKI. Under the previous order, having consulted with both leaders, I ask unanimous consent that the Senate now resume amendment No. 37. It is my understanding we are ready to vote on it.

Mr. MURKOWSKI. I am the first to acknowledge the probability of some 5 tons of nuclear waste being exposed to the air, the land, moving in whatever moisture that may take place in that arid area. But that is unlike the high-level nuclear waste that would be stored there in a temporary retrievable repository. That waste would be enclosed in casks designed to omit no radioactivity outside the cask. So I would point out to my friend that there is a significant difference when you talk about 85 tons of contained waste in many, many containers that are designed to hold it with no exposed radioactivity outside and 5 tons of nuclear waste that just went up. It is in the dust. It is in the air. And that is indeed unfortunate. I think it does express a difference.

Mr. MURKOWSKI. That is right.

Mr. MURKOWSKI. I thank my friend from Idaho for that excellent colloquy.

Mr. MURKOWSKI. I wonder if my friend would yield for a question?

Mr. MURKOWSKI. The President would then decide another location. And if the President chose not to decide, it would theoretically go back.

Mr. MURKOWSKI. That is correct.

Mr. MURKOWSKI. The Senator from Idaho is correct. It even provides for the training of personnel.