February 12, 2003

The Honorable Spencer Abraham
Secretary
Department of Energy
Forrestal Building
1000 Independence Avenue, S.W.
Washington, D.C. 20585

Dear Secretary Abraham:

One of the most pressing responsibilities of the Department of Energy (DOE) is the construction of a repository for the permanent disposal of high-level nuclear waste. Like you, I strongly supported enactment of H.J.Res. 87 during the 107th Congress, to ensure that the Department can continue its assessment of the suitability of Yucca Mountain, Nevada.

I remain concerned, however, that inadequate funding could cripple the Department’s efforts to finish site characterization and, if appropriate, apply to the Nuclear Regulatory Commission (NRC) for a license to operate a permanent waste repository. I have concerns about the adequacy of the proposed FY 2003 appropriation and the President’s budget request for FY 2004 funding, both of which appear to be lower than amounts indicated as necessary in your letter of May 14, 2001. Of even greater concern is the need to restore to the program the billions of dollars contributed over a nearly 20-year time period to the Nuclear Waste Fund, to be used as Congress intended.

It has been clear for some time that absent legislative action, money paid into the Fund will continue to be diverted to other purposes -- an inequitable use of funds collected from utility ratepayers specifically to pay for the repository. If this continues, construction could be delayed even in the event DOE had already received NRC approval to build a repository at Yucca Mountain. In that event, waste would remain in de facto permanent storage at dozens of facilities which were not designed for this purpose, in Michigan and many other states, at even greater cost to ratepayers. Moreover, damages in breach of contract lawsuits against DOE would continue to mount and, as I understand it, could be paid from general taxpayer revenues.

It is unfortunate that efforts to take the Nuclear Waste Fund "off budget," so as to extricate it from the budget process, have not been successful (the Committee on Commerce reported legislation to do so in the 106th Congress, but it was not enacted). As the data provided in your May 14, 2001, letter indicated, a continuing failure to restore the Fund to its intended use could begin to have a major impact on the program as early as the current fiscal year.

Clearly, enactment of the legislation to take the Nuclear Waste Fund "off budget" would require a major effort on the part of both the Congress and the Administration. In order to help Members understand the status of current funding for the repository program, I would appreciate your response to the attached questions by March 4, 2003.

I look forward to working with you to ensure the Fund is restored to its original purpose so that the Department has the resources to fulfill its obligations under the Nuclear Waste Policy Act of 1983. Should you have any questions regarding these matters, please contact me or have your staff contact Sue Sheridan, Minority Counsel to the Committee on Energy and Commerce, at 202-226-3400.

Sincerely,

John D. Dingell
Ranking Member
Committee on Energy and Commerce

cc: The Honorable W.J. "Billy" Tauzin
        Chairman, Committee on Energy and Commerce

        The Honorable Joe Barton, Chairman
        Subcommittee on Energy and Air Quality

        The Honorable Rick Boucher, Ranking Member
        Subcommittee on Energy and Air Quality

1. Funding Issues

(a) Please provide an updated version of the attachment to your letter of May 14, 2001, entitled "Summary of Cash Flow Funding Profile for Current Program as of 3-2001."

(b) What is the current "balance" in the Nuclear Waste Fund?

(c) Please indicate whether anticipated funding for FY 2003 and the level of appropriations requested by the Administration for FY 2004 is likely to be adequate to meet the program’s needs, and if not what delays in the program you expect to occur as a result. What has changed since your letter of May 14, 2001, which included "planning estimates" that suggest higher levels of appropriations will be needed to keep the program on track (see "Summary of Cash Flow Funding Profile for Current Program as of 3-2001")?

2. FY 2004 Budget Request

The Department of Energy’s FY 2004 budget request states "The Administration is recommending that the amounts of budget authority and associated outlays in FY 2004 and 2005 that exceed the FY 2003 enacted level be scored as an adjustment to the proposed discretionary spending caps for those years."

Please explain the impact this proposal would have, both in the near term and the long term, on the (a) federal budget and (b) the repository program. Alternatively, what impact would a failure to implement this proposal have on the repository program?

3. DOE Position

Do you support legislation to take the balance of Nuclear Waste Fund, and future payments to the Fund "off budget?" If not, please explain how you plan to secure adequate funding over the life of the repository program.

4. Pending Litigation

Please provide a summary of major pending litigation affecting the Department’s repository program under the Nuclear Waste Policy Act of 1982, including the status of suits pending before the U.S. Court of Claims. Has the question of whether damages for utilities’ breach of contract claims will be paid from the Nuclear Waste Fund or the Judgment Fund been resolved? Please provides estimates of the damage awards that may result from such suits.

5.    Program Schedule

Please provide estimates of the major remaining milestones for the repository program, including the completion of site characterization, the date of a license application to the NRC, commencement of repository operations, and delays in the anticipated schedule for waste acceptance from various utilities.