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United States of America Congressional Record tb PROCEEDINGS AND DEBATES OF THE 99 CONGRESS, SECOND SESSION Vol. 132 WASHINGTON, WEDNESDAY, MAY 7, 1986 No. 60 Senate Mr. HECHT. Mr. President, the Department of Energy recently submitted to Congress the annual report of the Civilian Radioactive Waste Management Program. I want to bring to the Senate's attention a problem with that report that is of potentially crucial importance to all States being considered for the first or second high level nuclear waste repository. The Department seems to have misunderstood the results of a recent lawsuit undertaken by the State of Nevada, as indicated by the report's incorrect description of the court's opinion. The issue is whether or not the State of Nevada has a right to carry out independent scientific research that is relevant to the choice of a State for the first high level nuclear waste repository. The court said the State has a right to Federal funds to perform scientific research relating to site selection. The DOE's annual report does not give that impression. I ask unanimous consent that a letter from Nevada Attorney General Brian McKay, and the court's opinion on the case I have discussed, be printed in the Record. There being no objection, the report was ordered to be printed in the Record, as follows: Office of the Attorney General, Capitol Complex, Carson City, May 2, 1986. Hon. Chic Hecht, U.S. House of Representatives, Hart Senate Office Bldg., Washington, DC. Dear Chic: Recently my office received a copy of the Department of Energy's Annual Report to Congress submitted by the Office of Civilian Radioactive Waste Management [OCRWM] dated March 1986. At page 46 of the report under the heading of "Litigation Status," the following paragraph appears: In State of Nevada v. Herringtcn, the U.S. Court of Appeals for the Ninth Circuit issued an opinion on December 2, 1985. The Court rejected the State of Nevada's legal argument that, based on provisions in the Act relating to consultation and cooperation, the State was entitled to the grant funds requested. However, the Court found that in accordance with the Act, and subject to certain limitations laid out by the Court, such pre-site characterization activities could be funded. The Court also found that certain provisions of DOE's grant guidelines are unduly restrictive. As a result of this decision, OCRWM is reviewing, and has initiated a revision of, its financial assistance guidelines. Attached hereto, I am providing a copy of the Ninth Cricuit Court of Appeals Opinion in the case of Nevada v. Herrington. Even a cursory review of the Opinion would convince the reader that the report provided by OCRWM to Congress is grossly fallacious and misleading. I cannot speculate as to why OCRWM would attempt to mislead Congress in this manner, but the record must be corrected to accurately state the facts. I would appreciate your assistance in correcting the DOE's Annual Report to Congress by substituting the following paragraph in lieu of that provided by DOE: In State of Nevada v. Herrington, the U.S. Court of Appeals for the Ninth Circuit issued an opinion on December 2, 1985. The Court agreed with the State of Nevada's legal argument that, based on provisions in the Act relating to participation, consultation and cooperation, the State was entitled to the grant funds requested for pre-site characterization studies. The Court found that in accordance with the Act, and subject to certain limitations laid out by the Court, pre-site characterization activities as well as independent studies conducted during characterization could be funded. The Court also found that certain provisions of DOE's grant guidelines are unlawful and must be set aside. As a result of this decision, OCRWM is reviewing, and has initiated a revision of, its financial assistance guidelines. Because the DOE is unwilling to report the facts to Congress in a forthright and candid manner, I find it necessary to seek your help in this matter. If you have any questions, please do not hesitate to contact me. Very truly yours, Brian McKay, Attorney General.