[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
                  NUCLEAR WASTE STORAGE AND DISPOSAL POLICY, 
                   AND HYDROELECTRIC LICENSE EXTENSION AND 
                         ENERGY EFFICIENCY LEGISLATION


                                    HEARING

                                  BEFORE THE

                   SUBCOMMITTEE ON ENERGY AND AIR QUALITY

                                    OF THE 

                           COMMITTEE ON ENERGY AND 
                                  COMMERCE

                           HOUSE OF REPRESENTATIVES


                          ONE HUNDRED NINTH CONGRESS

                                SECOND SESSION


                              SEPTEMBER 13, 2006

                              Serial No. 109-138

           Printed for the use of the Committee on Energy and Commerce





Available via the World Wide Web:  http://www.access.gpo.gov/congress/house


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                     COMMITTEE ON ENERGY AND COMMERCE
                        JOE BARTON, Texas, Chairman
RALPH M. HALL, Texas                      JOHN D. DINGELL, Michigan
MICHAEL BILIRAKIS, Florida                  Ranking Member
  Vice Chairman                           HENRY A. WAXMAN, California
FRED UPTON, Michigan                      EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida                    RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio                     EDOLPHUS TOWNS, New York
NATHAN DEAL, Georgia                      FRANK PALLONE, JR., New Jersey
ED WHITFIELD, Kentucky                    SHERROD BROWN, Ohio
CHARLIE NORWOOD, Georgia                  BART GORDON, Tennessee
BARBARA CUBIN, Wyoming                    BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois                    ANNA G. ESHOO, California
HEATHER WILSON, New Mexico                BART STUPAK, Michigan
JOHN B. SHADEGG, Arizona                  ELIOT L. ENGEL, New York
CHARLES W. "CHIP" PICKERING,  Mississippi ALBERT R. WYNN, Maryland
  Vice Chairman                           GENE GREEN, Texas
VITO FOSSELLA, New York                   TED STRICKLAND, Ohio
ROY BLUNT, Missouri                       DIANA DEGETTE, Colorado
STEVE BUYER, Indiana                      LOIS CAPPS, California
GEORGE RADANOVICH, California             MIKE DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire            TOM ALLEN, Maine
JOSEPH R. PITTS, Pennsylvania             JIM DAVIS, Florida
MARY BONO, California                     JAN SCHAKOWSKY, Illinois
GREG WALDEN, Oregon                       HILDA L. SOLIS, California
LEE TERRY, Nebraska                       CHARLES A. GONZALEZ, Texas
MIKE FERGUSON, New Jersey                 JAY INSLEE, Washington
MIKE ROGERS, Michigan                     TAMMY BALDWIN, Wisconsin
C.L. "BUTCH" OTTER, Idaho                 MIKE ROSS, Arkansas                       
SUE MYRICK, North Carolina
JOHN SULLIVAN, Oklahoma
TIM MURPHY, Pennsylvania
MICHAEL C. BURGESS, Texas
MARSHA BLACKBURN, Tennessee

                     BUD ALBRIGHT, Staff Director
                    DAVID CAVICKE, General Counsel
     REID P. F. STUNTZ, Minority Staff Director and Chief Counsel


                 SUBCOMMITTEE ON ENERGY AND AIR QUALITY
                    RALPH M. HALL, Texas, Chairman
MICHAEL BILIRAKIS, Florida                RICK BOUCHER, Virginia
ED WHITFIELD, Kentucky                      Ranking Member
CHARLIE NORWOOD, Georgia                  MIKE ROSS, Arkansas
BARBARA CUBIN, Wyoming                    HENRY A. WAXMAN, California
JOHN SHIMKUS, Illinois                    EDWARD J. MARKEY, Massachusetts
HEATHER WILSON, New Mexico                ELIOT L. ENGEL, New York
JOHN B. SHADEGG, Arizona                  ALBERT R. WYNN, Maryland
CHARLES W. "CHIP" PICKERING,  Mississippi GENE GREEN, Texas
VITO FOSSELLA, New York                   TED STRICKLAND, Ohio
GEORGE RADANOVICH, California             LOIS CAPPS, California
MARY BONO, California                     MIKE DOYLE, Pennsylvania
GREG WALDEN, Oregon                       TOM ALLEN, Maine
MIKE ROGERS, Michigan                     JIM DAVIS, Florida
C.L. "BUTCH" OTTER, Idaho                 HILDA L. SOLIS, California
JOHN SULLIVAN, Oklahoma                   CHARLES A. GONZALEZ, Texas
TIM MURPHY, Pennsylvania                  JOHN D. DINGELL, Michigan
MICHAEL C. BURGESS, Texas                   (EX OFFICIO)                            
JOE BARTON, Texas
  (EX OFFICIO)


                                  CONTENTS


                                                                    Page
Testimony of:
        Sproat, III, Hon. Edward F., Director, Office of Civilian 
                Radioactive Waste Management, U.S. Department of 
                Energy	                                              16
        Reyes, Luis A., Executive Director for Operations, U.S. 
                Nuclear Regulatory Commission	                      20
        Wise, Hon. Stan, Chairman, Georgia Public Service 
                Commission, on behalf of National Association of 
                Regulatory Utility Commissioners	              44
        Earley, Jr., Anthony F., Chairman and Chief Executive 
                Officer, DTE Energy Company, on behalf of Nuclear 
                Energy Institute	                              52
        Boyd, Michele, Legislative Director, Public Citizen	      63
        Otter, Hon. C. L. "Butch", Member, U.S. House of 
                Representatives	                                      82
        Mollohan, Hon. Alan B., Member, U.S. House of 
                Representatives	                                     214
        Robinson, Mark J., Director, Office of Energy Projects, 
                Federal Energy Regulatory Commission	             238
Additional material submitted for the record:
        Sproat III, Hon. Edward F., Director, Office of Civilian 
                Radioactive Waste Management, U.S. Department of 
                Energy, response for the record	                     247
        Reyes, Luis A., Executive Director for Operations, U.S. 
                Nuclear Regulatory Commission, response for the 
                record	                                             251
        Wise, Hon. Stan, Chairman, Georgia Public Service 
                Commission, on behalf of National Association of 
                Regulatory Utility Commissioners, response for the 
                record	                                             254
        Earley, Jr., Anthony F., Chairman and Chief Executive 
                Officer, DTE Energy Company, on behalf of Nuclear 
                Energy Institute, response for the record	     258



              NUCLEAR WASTE STORAGE AND DISPOSAL POLICY, 
                       AND HYDROELECTRIC LICENSE 
                          EXTENSION AND ENERGY 
                         EFFICIENCY LEGISLATION


                      WEDNESDAY, SEPTEMBER 13, 2006

                         HOUSE OF REPRESENTATIVES,
                    COMMITTEE ON ENERGY AND COMMERCE,
                 SUBCOMMITTEE ON ENERGY AND AIR QUALITY,
                                                       Washington, DC.


        The subcommittee met, pursuant to notice, at 2:00 p.m., in 
Room 2322 of the Rayburn House Office Building, Hon. Ralph M. 
Hall (Chairman) presiding.
        
	Members present:  Representatives Hall, Norwood, Shimkus, 
Otter, Murphy, Burgess, Barton (ex officio), Boucher, Markey, 
Green, and Dingell (ex officio).
	Staff present: David McCarthy, Chief Counsel for Energy and 
the Environment; Kurt Bilas, Counsel; Annie Caputo, Professional 
Staff Member; Elizabeth Stack, Policy Coordinator; Peter Kielty, 
Legislative Clerk; Sue Sheridan, Minority Senior Counsel; and 
Bruce Harris, Minority Professional Staff Member.
	MR. HALL.  The committee will come to order.  I would like to, 
of course, welcome all the witnesses to this committee with a 
particular warm welcome to fellow members, Congressman Otter 
and Congressman Mollohan.  A warm welcome to all of them but 
to our associates, we always like to see them come before the 
committee.  Without objection, the subcommittee will proceed 
pursuant to committee rule 4E, which allows members the 
opportunity to defer opening statements for extra questioning time.  
I recognize myself for an opening statement.
	First, I want to thank Ranking Member Rick Boucher and 
Chairman Barton and Ranking Member Dingell of the full 
committee for their help in setting up this hearing.  Nuclear and 
hydroelectric energy are the mainstays of our Nation's energy 
supply and resolving these issues before us today is just absolutely 
critical to insuring that our country continues to receive the 
benefits of these clean energy sources.
	First, let me comment on nuclear waste.  Yucca Mountain is a 
necessary solution for hazardous disposal of our Nation's nuclear 
waste.  I have said before, and said it before and before and before, 
we owe it to our children and to our grandchildren to live up to the 
commitment to build a safe and secure repository.  Today's 
hearing is an opportunity for us to hear from the stakeholders 
regarding their opinions on the various legislative proposals 
regarding nuclear waste storage and disposal, and any additional 
recommendations that they might have.  I know many people are 
frustrated with the length of time we have been working on this 
issue and how much longer it will be until the repository opens.
	I think that frustration leads people to question whether Yucca 
Mountain will ever open and to suggest that we proceed with 
interim storage instead.  I have supported interim storage 
provisions in the past at Yucca Mountain.  We should not allow the 
pursuit of interim storage to slow progress in the repository.  After 
addressing nuclear issues, we will turn to five bills that provide for 
hydroelectric license extension.  These bills address seven projects 
in five States and have been introduced by Republicans and 
Democrats.
Our first hydro panel will consist of two of our colleagues, 
Congressman Butch Otter from Idaho, and Congressman Alan 
Mollohan from West Virginia to discuss the bills that they have 
introduced to extend the licensing for projects in their States.  We 
will also hear from Mark Robinson of the Federal Energy 
Regulatory Commission on FERC's view on these five bills.  I 
encourage my colleagues to use this hearing to gain a better 
understanding of the issues before us in preparation for possible 
legislative action.  I remind all members have the opportunity to 
submit questions for the record following the hearing.  I ask the 
witnesses to please respond to these questions as soon as you can.  
I look forward to working with you and listening to your testimony 
today, so as we get underway I will recognize Mr. Boucher for an 
opening statement.
	[The prepared statement of Hon. Ralph M. Hall follows:]

PREPARED STATEMENT OF THE HON. RALPH M. HALL, CHAIRMAN, 
SUBCOMMITTEE ON ENERGY AND AIR QUALITY

        The Subcommittee will come to order.  I would like to 
welcome all of the witnesses to this Committee with a particularly 
warm welcome to our fellow Members, Congressmen Otter and 
Mollohan.  Without objection, the Subcommittee will proceed 
pursuant to Committee Rule 4(e), which allows Members the 
opportunity to defer opening statements for extra questioning time.  
        The Chair recognizes himself for an opening statement.  First, I 
want to thank Ranking Member Rick Boucher, and Chairman 
Barton and Ranking Member Dingell of the Full Committee for 
their help in setting up this hearing.  Nuclear and hydroelectric 
energy are mainstays of our nation's energy supply.  Resolving the 
issues before us today is critical to ensuring that our country 
continues to receive the benefits of these clean energy sources.
        First, let me comment on nuclear waste.  Yucca Mountain is a 
necessary solution for how to dispose of our nation's nuclear 
waste.  As I've said before, we owe it to our children and 
grandchildren to live up to the commitment to build a safe and 
secure repository.  
        Today's hearing is an opportunity for us to hear from 
stakeholders regarding their opinions on the various legislative 
proposals regarding nuclear waste storage and disposal, and any 
additional recommendations they have.  
        I know many people are frustrated with the length of time we 
have been working on this issue and how much longer it will be 
until the repository opens.  I think that frustration leads people to 
question whether Yucca Mountain will EVER open and to suggest 
that we proceed with interim storage instead.  I've supported 
interim storage provisions in the past, at Yucca Mountain.  
However, a short term fix should not detratct from the focus and 
resources needed for the long-term solution - the pursuit of interim 
storage should not slow progress on the repository.
        After addressing nuclear issues, we will turn to 5 bills that 
provide for hydroelectric license extensions.  These bills address 7 
projects in 5 States and have been introduced by Republicans and 
Democrats.  Our first panel will consist of two of our colleagues, 
Congressman Butch Otter from Idaho and Congressman Allan 
Mollohan from West Virginia, to discuss the bills that they have 
introduced to extend the FERC licenses for projects in their States.  
We will also hear from Mark Robinson of the Federal Energy 
Regulatory Commission on FERC's views on these 5 bills.  
        I encourage my colleagues to use this hearing to gain a better 
understanding of the issue before us in preparation for possible 
legislative action.  I remind all Members of the opportunity to 
submit questions for the record following the hearing.  I ask the 
witnesses to please respond those questions as soon as you can.  I 
look forward to working with you, and listening to your testimony 
today.

	MR. BOUCHER.  Thank you very much, Mr. Chairman, and I 
want to commend you for convening today's hearing on our 
nuclear waste disposal and storage policies, as well as on 
legislation providing for hydroelectric license extensions in several 
selected circumstances.  I will focus my comments this afternoon 
on the nuclear waste portion of today's hearing.  This is a matter of 
great concern to many stakeholders including the electricity 
consumers who are paying every year into the Nuclear Waste 
Fund.
	I was pleased to learn during our hearing in July on the status 
of the Yucca Mountain program that the Department of Energy has 
developed a new schedule and plans to submit a license application 
in the year 2008 to the Nuclear Regulatory Commission with the 
opening of the repository expected to follow in the year 2017.  
While I am encouraged by the new schedule that DOE has put 
forward and even more encouraged by its apparent determination 
to meet that schedule, we are all still awaiting the receipt of an 
accompanying anticipated funding stream statement, and we hope 
we will be receiving that statement in the near future.  That will be 
the schedule of money that will flow to DOE and to this program 
that would be required to meet the new schedule.
	The longstanding matter of funding for the Yucca Mountain 
project continues to be of great concern.  While the balance in the 
Nuclear Waste Fund is currently approximately $19 billion, annual 
appropriations for the Yucca Mountain program are only a fraction 
of the amount annually contributed by the ratepayers.  This year, 
for example, the Administration has proposed $156 million for 
civilian nuclear waste disposal, but $750 million in rate payer 
contributions will go into the Nuclear Waste Fund during the 
current year.  These monies are not walled off and protected and 
are therefore being spent for other purposes in order to fund the 
Federal government's general operations, and that was never the 
intent at the time that ratepayers were taxed with funding the 
nuclear waste disposal program.
	Over the past several years several legislative proposals to 
address the funding mechanism have been debated by this 
committee but because of objections from other committees no 
resolution has been reached on ways to secure funding to this 
project.  I would say again it is a matter of paramount importance.  
It is in my view essential to secure for the Yucca Mountain project 
not only future rate payer contributions into the Fund, but also the 
existing balance of approximately $19 billion which has been paid 
for the purpose of establishing the repository.  And as we consider 
legislation to secure future contributions, I think it must have a 
component that assures that the Yucca Mountain project receives 
the full balance, approximately 19 billion, currently residing within 
the Fund.
	A number of new proposals have surfaced in recent months 
including the establishment of possible interim storage facilities 
and also the global nuclear energy partnership, a program which 
would promote nuclear waste reprocessing.  I am interested in 
hearing about the potential merits of both of these proposals, but 
let me say that I am somewhat skeptical about the ability of DOE 
simultaneously to fund and staff those new efforts while 
continuing to meet the new schedule for opening Yucca Mountain.  
And I hope that our witnesses today will offer some comments on 
how that might happen if either or both of these new programs are 
put into effect.  Thank you again, Mr. Chairman, and I yield back.
	MR. HALL.  I thank the gentleman.  The Chair recognizes Dr. 
Norwood, the gentleman from Georgia, for an opening statement.
	MR. NORWOOD.  Thank you, Mr. Chairman, and thank you for 
holding this hearing today on a very important energy issue 
including nuclear and hydroelectric power issues.  I have been a 
strong supporter of these types of power since coming to Congress 
and would very much like to see their expansion in these areas to 
promote clean, renewable power and diversification in our 
Nation's energy portfolio.  Unfortunately, I think that we keep 
seeing the same opposition from the usual suspects.  These folks 
who oppose the energy bill oppose offshore exploration, oppose 
domestic resources in Alaska, oppose expanding refineries, and 
even oppose wind power when it hurts their vacation home view.
	Yet, they are the first to vilify oil companies when trying to 
bring my product to market first to make us beholding to 
international energy moguls and the first to cry when their winter 
heating bill goes up or their power blacks out because of lack of 
infrastructure.  Now we have the expansion of nuclear power 
before us, and as we have for some time, and the delays continue.  
I for one come from a State that is ready, is willing, is able to 
expand our nuclear power infrastructure, but the industry and the 
expansion are hamstrung by the failure to achieve some certainty 
that a plan will be in place for proper safe disposal of nuclear 
waste, all the while power bills slowly are creeping up and waste 
piles up.
	This is a security issue.  It is a power issue.  It is an 
infrastructure issue, and it is a jobs issue.  I would have thought 
that we could have agreed on all of these things, but clearly we do 
not.  I look forward to this hearing.  I look forward to being 
reassured by Mr. Sproat that after my visit to Yucca Mountain in 
1995 he might actually open it and hopefully before 2008.  Finally, 
I would like to welcome my friend and fellow Georgian, Mr. Stan 
Wise, who serves our home State with both dedication and 
distinction.  I appreciate his service to Georgia and our constituents 
appreciate his efforts on their behalf back home.  I know that he 
will be an able and informative witness for us here on this second 
panel.  Thank you for coming today, Stan, and I look forward to 
your testimony.  Thank you, Mr. Chairman.
	MR. HALL.  Thank you, Dr. Norwood.  The Chair recognizes 
Dr. Murphy, the gentleman from Pennsylvania, for an opening 
statement.
	MR. MURPHY.  Thank you, Mr. Chairman, and thank you for 
holding this important hearing.  As you know, we are in the 
unfortunate and tragic position in the United States of funding both 
sides in this war we are immersed in, a war that has been going on 
for some 30 years, curiously as long as we have also not been 
building nuclear power plants, building oil refineries, exploring for 
oil and natural gas to a very limited extent.  In the meantime, 
countries like Iran take our oil money that people pay for every 
time they fill their tank and they have recently given I believe it 
was about $100 million worth of aid to Hezbollah in their fight 
against Israel.
	We have countries like Venezuela who openly embrace other 
terrorist supporting Nations saying that they also see the United 
States as their enemy, all the while taking money from our citizens 
to fund their hostile comments and their hostile activities.  The 
only way we can combat this is to have a diverse source of energy 
in this Nation that includes exploring for our own sources of oil off 
the Atlantic Coast, the Gulf Coast, the Pacific Coast, the Rocky 
Mountains in Alaska, and stop delaying this for the sake of politics 
and really see that we have to have some energy independence 
here, diversify our energy sources to include such things as clean 
coal technology which we have been funding but we need to move 
forward more aggressively on that, and also diversity with other 
sources, solar, hydroelectric, and nuclear being among them.
	If we fail to do that, we are continuing to send money to people 
who use it against us to kill our citizens, people who are part of a 
network who have promised to kill some four million adults and 
two million children as part of their war against us.  This is a 
serious undertaking.  I am pleased that as a result of our energy 
bill, companies like Westinghouse Electric are now working 
actively to build nuclear power plants.  But of course we can't 
move forward on that unless they have a place to put the nuclear 
waste.  A large part of the solution to America's energy problem is 
American energy, and the more we see energy independence by 
diversifying our sources through such things as nuclear, clean coal, 
domestic source of oil, and other renewables, the better off we are 
as a Nation.
	Like most Americans, I am tired, I am sick and tired of having 
hostile Nations dictate our economy while we sit back and here 
and argue politics instead of working on energy policy.  This issue 
of Yucca Mountain is a major issue for our energy independence 
and the sooner we understand it is a major issue for our American 
peace the sooner we will move forward in doing the right thing.  
Thank you, Mr. Chairman.
	MR. HALL.  Thank you, sir.  The Chair recognizes Honorable 
John Dingell for an opening statement.  Mr. Dingell, welcome.
	MR. DINGELL.  Mr. Chairman, you are most courteous.
	MR. HALL.  You are worth waiting for.
	MR. DINGELL.  We will see after I finish this statement if you 
still want to hold that view.
	MR. HALL.  I may want to revise my statement.
	MR. DINGELL.  Mr. Chairman, thank you for this hearing.  I 
applaud the attention which the subcommittee and the full 
committee have brought during this session to the Department of 
Energy's DOE Yucca Mountain waste repository program.  This 
program is long delayed.  It has undergone an internal review 
which I hope will get it back on track so the DOE can prepare and 
file the license application with the Nuclear Regulatory 
Commission in the near future.  It is important that this committee 
and this subcommittee stay on top of these changes, and I 
commend you, Mr. Chairman, and the Chairman of the full 
committee for your doing this.
	I am pleased to have Director Sproat before the subcommittee 
today.  While past delays in the program are regrettable, it was 
good to learn at our last hearing in July that Mr. Sproat believes 
DOE will be in a position to file an application by 2008 and 
potentially to open the repository in 2017.  I am pleased that Tony 
Earley, a personal friend, and the Chairman and CEO of DTE 
Energy Company in my home State of Michigan will be testifying 
today on behalf of the Nuclear Energy Institute.
	The nuclear industry has upheld its end of the bargain in terms 
of channeling funds into the Nuclear Waste Fund.  I appreciate the 
support that the industry gives on funding reform and on other 
things related to these matters.  This is sorely needed to protect it 
and the ratepayers' investment.  I hope that industry will support 
my efforts to find the means of halting the diversion of the $19 
billion in the Fund, which sadly remains vulnerable to raids by the 
Budget and the Appropriations Committees, which is regularly 
diverted to other purposes for the reasons best understood by the 
Budget and Appropriations Committees.
	Today's hearing may shed light on questions surrounding the 
issue of centralized interim storage.  The idea surfaces from time to 
time and indeed the Nuclear Waste Policy Act included a very 
narrow and specifically drawn version which expired in 1990.  
Similarly, during the 106th Congress the committee referred the bill 
authorizing DOE to construct a strictly limited interim storage 
facility in Nevada.  While interim storage may hold promise, we 
should not lose sight of the fundamental trade off that the Congress 
has waged in past debates that interim storage not grow so large as 
to undercut incentives for completing the repository.
	Those who suggest the time has come to abandon this concern 
should be prepared to explain why ratepayers should be asked to 
pay for both the repository program and one or more interim 
storage facilities which will have substantial cost in addition to the 
cost of on-site storage.  This brings me, Mr. Chairman, to my last 
observation.  For years DOE has provided information to this 
committee projecting funding needs for the Yucca Mountain 
project for the following decade.  This has enabled members to 
assess whether or not the program funding will be adequate and 
when DOE will need access to the corpus of the Nuclear Waste 
Funds to meet peak spending needs.
	To date, DOE has not provided Congress with updated cost 
estimates that reflect the programmatic changes announced in July, 
and I hope that this hearing today will help us get some of that 
information.  To be sure, I would rather that the Department take 
the time needed to get it right, rather than to hurry this information.  
The lack, however, of updated cost estimates precludes members 
from making an informed judgment about legislative proposals for 
centralized Federal interim storage.  DOE did not include interim 
storage in its legislative proposal, and I share the concerns that 
several of my colleagues from both sides of the aisle expressed 
about the effect of such a new initiative and the impact it could 
have on DOE's resources.  In terms of process, a policy change of 
this magnitude is best considered by the regular order.  If not, the 
product is likely to be disappointing and will make matters worse.
	It would be a shame if the Congress saddled DOE with another 
layer of responsibilities that resulted in still more delay and still 
more litigation.  With that, Mr. Chairman, I thank you for your 
kindness.  I thank my colleagues for their attention, and I look 
forward to hearing from the witnesses, and I yield back the balance 
of my time.
	MR. HALL.  Thank you, Mr. Dingell.  The Chair notes the 
presence of Mr. Barton, Chairman of the Energy and Commerce 
Committee.  I recognize you, Mr. Chairman, for an opening 
statement.
	CHAIRMAN BARTON.  Thank you, Chairman Hall, for holding 
this hearing.  Nuclear energy and hydropower both play crucial 
and growing roles in meeting our Nation's energy needs.  Solving 
the nuclear waste issue and facilitating hydroelectric licensing are 
crucial steps to insuring that these clean energy sources continue to 
be available.  Two months ago your subcommittee heard testimony 
from the Department of Energy on the new schedule at Yucca 
Mountain.  Meeting that ambitious schedule will require legislative 
action and funding.  Mr. Sproat is here today.  I am going to let 
you know that I remain committed to helping you meet that 
schedule.  I am going to go everything I can to help you be 
successful in meeting that schedule.
	I realize that 2017 is a long way off, but there is a growing 
desire on the part of some to pursue interim storage.  As Chairman 
Hall has commented, I have also supported interim storage in the 
past at Yucca Mountain.  However, building interim storage 
facilities in as many as 31 States is not something that I support, 
and I don't think the House will support it.  I think it is unrealistic.  
I think it depletes the Nuclear Waste Fund, and I think it does not 
meet our obligation to the ratepayers who have paid for Yucca 
Mountain.  To the extent interim storage is appropriate, let us 
locate it at Yucca Mountain.
	The ratepayers that have paid into the waste fund for all these 
years are counting on Congress to do our part by building the 
repository.  We owe them the value of that facility.  We also owe it 
to our future generations to take care of the spent fuel that we 
already have on hand.  In the process we should not preclude 
future generations from applying advance technologies that almost 
certainly will be developed.  You don't have to be a nuclear 
engineer to know with certainty that future generations will almost 
certainly discover more effective solutions to the nuclear waste 
issue than we have today.  As knowledge accumulates, new ideas 
will emerge and progress will happen.  Therefore, I strongly 
believe that we should proceed with licensing and constructing the 
repository at Yucca Mountain in a way that maintains flexibility 
for future generations to incorporate the improvements that they 
devise.
	The National Research Council has issued a report back in 
2003 that was entitled one step at a time.  It proposed a concept 
called adaptive staging.  I am intrigued by the proposal and intend 
to study it further.  Staged development of repositories is a concept 
that is gaining support internationally.  It may provide a flexible 
framework for incorporating future innovations without delaying 
the current repository.  As I have said before, I remain committed 
to doing everything I can as Chairman of the Energy and 
Commerce Committee to help the Department of Energy meet the 
2017 time table for opening the Yucca Mountain repository.
	There are legislative provisions that must be passed to 
accomplish that.  I expect if there are other provisions that could be 
passed it would be helpful.  In the coming months I hope to work 
with Mr. Dingell on a legislative package to put the Yucca 
Mountain program on a path to success.  Support for Yucca 
Mountain has been bipartisan in this committee and in the House.  
It is my goal that the work we do on this issue will continue to be 
bipartisan.  We should not let politics get in the way of addressing 
this important issue.  The subcommittee today is also going to take 
up five bills, or review five bills, to extend their licenses to begin 
the construction of seven hydroelectric projects.
	Last year's Energy Policy Act contained important provisions 
regarding hydroelectric project licensing to encourage more 
hydroelectric generation.  I see that the first panel after this panel 
contains two Members of Congress, Representatives Otter of 
Idaho, who is a member of this committee, and Alan Mollohan of 
West Virginia.  I look forward to their testimony.  With that, Mr. 
Chairman, I yield back.
	[The prepared statement of Hon. Joe Barton follows:]

PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN, 
COMMITTEE ON ENERGY AND COMMERCE

        Thank you, Chairman Hall for having this hearing.  Nuclear 
energy and hydropower both play crucial and growing roles in 
meeting our nation's energy needs.  Solving the nuclear waste 
issue and facilitating hydroelectric licensing are crucial steps to 
ensuring that these clean sources of energy will continue to be 
available.
        Two months ago this Subcommittee heard testimony from the 
Department of Energy on the new schedule for Yucca Mountain.  
Meeting that ambitious schedule will require legislative action and 
funding.  Mr. Sproat, I remain committed to helping you meet that 
schedule and will do everything I can to give you the tools you 
need to succeed.  
        I realize 2017 is a long way off and that there is growing desire 
on the part of some to pursue interim storage.  As Chairman Hall 
already commented, I have also supported interim storage in the 
past: at Yucca Mountain.  However, building interim storage 
facilities in as many as 31 states in NOT something I support.  It is 
unrealistic, depletes the Nuclear Waste Fund, and does not meet 
our obligation to the ratepayers who have paid for Yucca 
Mountain.   
        They're counting on Congress to do our part by finally building 
the repository.  Not only do we owe THEM the value of the 
facility, we also owe it to future generations to take care of the 
spent nuclear fuel that our generation has benefited from.  
However, in the process we should not preclude future generations 
from applying advanced technologies that they will develop.
        You don't have to be an engineer to know with certainty that 
future generations will discover more effective solutions to the 
nuclear waste issue.  As knowledge accumulates, new ideas will 
emerge and progress will happen.  Therefore, we should proceed 
with licensing and constructing the repository in a way that 
maintains flexibility for future generations to incorporate the 
improvements that they devise.  The National Research Council 
issued a report in 2003 entitled, "One Step at a Time" which 
proposed a concept called, "Adaptive Staging."  I am intrigued by 
the proposal and intend to study it further.  Staged development of 
repositories is a concept that is gaining support internationally and 
may provide a flexible framework for incorporating future 
innovations, without delaying the repository.
        As I've said before, I remain committed to doing everything I 
can to help DOE meet their 2017 opening date for the repository.  
There are legislative provisions that must be passed to accomplish 
that and I expect there are other provisions that would be helpful.  
In the coming months, I hope to work with Ranking Member 
Dingell on a legislative package to put the Yucca Mountain 
program on a path to success.  Support for Yucca Mountain has 
been bipartisan on this Committee.  It is my goal that the work we 
do on this issue will continue to be bipartisan.  We should not let 
politics get in the way of addressing this important issue.
        The Subcommittee will also take up 5 bills to extend the FERC 
licenses to begin the construction of 7 hydroelectric projects.  Last 
year's Energy Policy Act contained important provisions regarding 
hydroelectric project licensing to encourage more hydroelectric 
generation.  I see that the first hydro panel consists of 2 members 
of Congress - Representatives Butch Otter of Idaho and a member 
of the Energy and Commerce Committee, and Allan Mollohan of 
West Virginia.  I look forward to their testimony.   It is always 
encouraging to hear from people who want to see new energy 
facilities in their States.

	MR. HALL.  Mr. Chairman, I thank you.  I recognize Mr. 
Shimkus, the gentleman from Illinois, for an opening statement.
	MR. SHIMKUS.  Thank you, Mr. Chairman, and I will be brief.  
I want to welcome our panel.  This is an important hearing.  I agree 
a lot obviously with the Chairman and even the Ranking Member.  
Divide and conquer is a strategy to delay, confuse, and stop the 
expansion of nuclear power in this country.  That is why we were 
so excited, Mr. Sproat, when you gave your testimony and 
committing a time line.  I want to join my Chairman in saying 
anything we can do to meet the 2008-2017 we want to do because 
the best signal we can send to the nuclear industry is that we are 
serious.  We are serious about Yucca.
	This interim proposal is just ridiculous.  If we think that each 
State is going to not delay, confuse, obfuscate, I can't even say the 
word, this process and delay interim storage for decades like the 
attempts that have been at Yucca Mountain, we haven't been in 
Washington very long, so I want us to move forward.  You have 
got a lot of supporters here.  You can count me as one of them, and 
I look forward to working with you to achieve that end so that we 
can diversify our energy portfolio for all the reasons that members 
have already mentioned before.  We want a competitive, electricity 
generation market.  That means coal.  I am from a leading coal 
State.  That means nuclear and natural gas and hydroelectric.  You 
want them to compete, and you don't want to disenfranchise any of 
those competitors.  I yield back, Mr. Chairman.
	MR. HALL.  Thank you.  The Chair recognizes Mr. Otter, the 
gentleman from Idaho, for an opening statement.
	MR. OTTER.  Thank you, Mr. Chairman.  I would to welcome 
the panel.  Thank you for being here today.  I would associate 
myself with the remarks of Mr. Shimkus and also our Chairman, 
and all those other remarks that says basically we are not much in 
favor of interim storage.  The future of energy, I believe, in this 
country is nuclear.  And the future of nuclear energy in this 
country is how we treat our waste.  Can we clean up the messes 
that we have got?  Can we take care of the messes that we would 
create?  And to delay and to try to now establish an interim storage 
scheme which would actually delay the final resting place of the 
nuclear waste that we have, I think is a terrible mistake not only in 
terms of promises made and promises not yet kept, but I think it is 
also a terrible mistake in terms of how we are going to be able to 
view the role in which nuclear energy can play in the future in the 
United States.
	I am aware and I am sure you too, sir, are aware of an 
agreement that we have in Idaho on the removal of nuclear waste, 
and there is a time line on that.  And that time line since its 
inception of that contract is 12 years now and certainly that 
agreement between the Department of Defense and Energy and the 
State of Idaho did allow for some time lines to be stretched, but it 
is getting perilously close now to an irreversible trend.  And so I 
would join the rest of my colleagues in total support of going 
forward with permanent storage and getting those projects 
underway so that we really do have a future for nuclear energy in 
this country.  Thank you, Mr. Chairman, and I yield back.
	[Additional statements submitted for the record follows:]

PREPARED STATEMENT OF THE HON. GENE GREEN, A 
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

        Thank you Mr. Chairman for holding our third Nuclear Waste 
hearing in the 109th Congress.
        It's about that time when people start looking to pass all kinds 
of legislation in lame duck omnibus appropriations bills, so it is a 
good idea for our Committee to be paying close attention to this 
issue.
        The scope of the challenge of nuclear waste has been well 
documented by this Committee and elsewhere, but the language in 
the Senate Energy and Water Appropriations bill is a new wrinkle 
we must confront.
        Many on this Committee are very concerned with this 
language.  By starting from scratch on new "interim" storage 
facilities at unknown locations, we are likely undercutting the 
Yucca Mountain project.
        With DOE and Congress struggling so hard to get Yucca 
moving, it's hard to see how the federal government has the time 
and resources to set up any more nuclear storage facilities.
        If we switch course and pursue an interim nuclear storage 
facility, we run the risk of eliminating all the momentum behind 
Yucca Mountain.
        Some Yucca opponents support the Senate language, and they 
probably view this proposal as a strategy to delay Yucca Mountain 
indefinitely.
        As a result, it is going to be very difficult to site an interim 
facility since any area that is chosen will suspect they're the new 
permanent facility.
        An interim facility will likely be smaller than Yucca Mountain 
which likely means that some nuclear waste will remain at on-site 
storage facilities for even longer than expected.
        Some facilities may be stuck with their waste because the 
interim facility won't be big enough to take care of everyone, but it 
will be big enough to take away Yucca's momentum.
        DOE needs to take a leadership role in the appropriations 
negotiations this year and do what is best for the entire nation's 
safety and reliable electricity supply.  
        If DOE sits on its hand on the sidelines it will be much easier 
for anti-Yucca elements in the Senate to sneak in through the back 
door and kill the Yucca Mountain project which Congress 
approved overwhelmingly.
        If that happens, the pro-nuclear Bush Administration may go 
down in history as the Administration that did the most damage to 
the future of nuclear power in America.
        Thank you and I yield back.

PREPARED STATEMENT OF THE HON. MIKE ROGERS, A 
REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

        Mr. Chairman:
        Thank you for convening this important hearing on nuclear 
waste storage and disposal policy.  First and foremost, I would like 
to welcome from Michigan Mr. Tony Earley, Chairman and Chief 
Executive Officer of DTE Energy to the Committee.
        Mr. Earley, in your important role serving as Chairman of the 
Nuclear Energy Institute, the Committee welcomes your expertise 
on this important issue facing our region and the entire nation.
        Mr. Chairman, my home state of Michigan has four nuclear 
waste storage sites.  Yet Michigan is also the home of the Great 
Lakes which contain 20 percent of the world's fresh water.  I can 
assure you that Michiganders are very interested in securing and 
opening the permanent nuclear waste storage facility at Yucca 
Mountain, Nevada to get this hazardous material off of the shores 
of our precious lakes.
        Many of the provisions found in H.R. 5360 would take 
important steps to continue moving this process forward.  This bill 
would go a long way toward providing certainty that the Yucca 
Mountain facility is progressing, ensure the funding stream already 
created goes toward Yucca as intended and by clarifying the 
licensing process.
        Mr. Chairman, thank you again for convening this important 
hearing. I look forward to working with you going forward on this 
issue.


	MR. HALL.  Thank you.  We are very fortunate to have two 
gentlemen who are very much in the mix of discussions who we 
have here today.  We appreciate once again your coming to our aid 
and giving us the advice that you are going to give us.  Edward F. 
Sproat, III, Director of Office of Civilian Radioactive Waste 
Management, U.S. Department of Energy, I recognize you at this 
time hopefully for 5 minutes but whatever it actually takes to 
summarize yours and then we will ask questions.  I recognize you, 
Mr. Sproat.

STATEMENTS OF HON. EDWARD F. SPROAT, III, DIRECTOR, OFFICE OF CIVILIAN 
RADIOACTIVE WASTE MANAGEMENT, U.S. DEPARTMENT OF ENERGY; AND LUIS A. REYES, 
EXECUTIVE DIRECTOR FOR OPERATIONS, U.S. NUCLEAR REGULATORY COMMISSION

        MR. SPROAT.  Mr. Chairman, Congressman Boucher, members 
of the committee, thank you very much for the opportunity to 
appear before you today to talk about H.R. 5360, which is entitled 
the Nuclear Fuel Management and Disposal Act, and on behalf of 
the President and the Secretary, I would particularly like to thank 
Chairman Barton for his introduction of this important piece of 
legislation.  Let me talk about--I am very encouraged by what the 
committee said this afternoon regarding your support for Yucca 
Mountain, and I want to talk specifically about what can we do for 
you to help make this happen, and that is what I want to talk about 
in 5 minutes or less.
	Two months ago I came before this committee, and I laid out 
the new best achievable schedule for the Yucca Mountain project 
showing that we believed under optimum circumstances the best 
achievable date of opening Yucca Mountain is March of 2017.  I 
got criticized in a number of quarters about how unrealistic that 
schedule was, and I want to make it very clear that the schedule is 
best achievable, not most probable, and there is a difference.  And 
I want to make it very clear that the legislation that the 
Administration sent up here to Capitol Hill back in the spring and 
here in the House as H.R. 5360 is absolutely positively critical to 
making that March, 2017 date.
	I can tell you unequivocally that if we don't get that legislation, 
I have a zero chance of making that March, 2017 date, and I am 
prepared to go into some of the details as to why that is the case, 
and so that is why I am here, to try and make that case to you about 
how important that piece of legislation is to allow us to open that 
repository by March of 2017.  There have been a number of 
discussions about this legislation, and there are a number of 
misconceptions out there about what it is asking for and what it is 
intending to do.  I am going to hit the highlights very quickly and 
try and put it in plain English because there are a number of--it is 
very legalistic in a number of ways, and I want to try and keep it 
very simple and very straightforward.
	Number one is around the waste fund; this legislation is not 
about taking Yucca Mountain off budget.  It is not about taking 
away from Congress its right of appropriations for Yucca 
Mountain.  This is about making the annual receipts in the Nuclear 
Waste Fund and characterizing them as discretionary.  And what 
that allows the various appropriations committees to do is to take 
that money, the receipts as they come in, appropriate them for 
Yucca Mountain without impacting the committee's budget limits 
that they are given for the budget process.  It does still maintain 
congressional control of the appropriations process over Yucca 
Mountain so that is very important to understand.
	Just one last point on money before I move on.  There have 
been a couple questions raised about the cash flows which you 
asked about when I was here 2 months ago.  The cash flow 
estimates for the Yucca Mountain project are in the final stages of 
being put together through the entire construction period of the 
project.  We are bringing in an outside, independent architect 
engineering firm to do an independent review of the methodology 
and the numbers that we have for that.  I expect that independent 
review to be done in early October.  Once that is done, we will 
present that to you in an appropriate forum so that you have those 
cash flows, but that is where we stand with that right now.  I 
understand you would like to have those as soon as possible but we 
want to make sure they are right.
	The second issue in the bill concerns land withdrawal, and to 
make it very simple, in order for the NRC to license the repository, 
DOE as the licensee needs to show that it has control of the 
repository area.  I can't do that unless that land is withdrawn from 
public use and public access, and what the legislation allows us to 
do is give the Secretary of Energy control that way and make 
determinations how it is to be used.  That is critical to the licensing 
process of Yucca Mountain.  
	The third area is removal of a 70,000 metric tons limit on the 
capacity of Yucca Mountain.  Right now with the current fleet of 
nuclear plants and with the license extensions they have open, we 
will have Yucca Mountain totally committed within the next 
several years.
	What this legislation is proposing is to remove that 
administrative limit that is in the Nuclear Waste Policy Act and 
allow the NRC to determine during the licensing process what the 
maximum allowable capacity of Yucca Mountain should be.  What 
I can tell you is that the Nuclear Waste Policy Act also requires me 
to report to Congress between January 1, 2007, and 2010, if I 
believe, there is a need for a second repository.  If we do not 
remove this administrative cap, I can tell you I will present a report 
to the Congress certainly during my tenure that says we need a 
second repository, national repository, if that 70,000 metric ton 
limit is retained.
	The next issue is around water, and this is about can we get the 
water we need to operate and construct Yucca Mountain, and we 
are not trying to usurp the State of Nevada's water rights here.  
What we are asking for is the Congress to declare Yucca Mountain 
in the public interest because right now the State of Nevada 
legislature has declared it not in the public interest and therefore 
the State water engineer cannot give us a permit to withdraw water.  
So all we are asking is that the Congress declare Yucca Mountain 
in the public interest, basically overriding the Nevada legislature's 
alternate determination and then allowing us to go in front of the 
State water engineer and present our case.  That is all we are 
asking for.  We are not trying to usurp Nevada's rights in terms of 
control of their water.
	In terms of waste confidence, this is an issue that a number of 
people have talked about.  This is about trying to make it very clear 
so that the NRC and the Congress believe that the disposal of spent 
nuclear fuel is an issue that the NRC does not need to consider in 
their environmental impact statements for new plants or for license 
extensions of existing plants.  This is an issue of vital importance 
to the industry and to our ability to move forward with nuclear 
energy in this country.
	The sixth area is around transportation, and there has been a lot 
of misinformation around this issue also.  Very simply, the 
Department of Energy already has authority to transport spent 
nuclear fuel and high level waste under the Atomic Energy Act.  
What we are asking for is authority under that Atomic Energy Act 
to use an existing Department of Transportation pre-emption 
process so that, if we get to a locality that is obstinate and not 
willing to work with us in the planning process to allow us to plan 
the transportation routes, that we can use the existing Department 
of Transportation pre-emption process, which is very well 
developed and very complete.  This gives us an alternative process 
to work around any obstructions we might get at a local level.
	We are not asking for, nor do we have any plans not to work 
very directly with county, State, local, and tribal members in 
planning the transportation routes.  That is what we have done in 
the past.  That is what we plan on doing in the future.  But we need 
this alternative pre-emption process that the Department of 
Transportation has in place so that we can apply it to our 
shipments.  There is also a request to clarify our capability to build 
infrastructure for the rail line to Yucca Mountain.  And just to be 
clear about that, we believe we already have the authority to do 
these things.  What we are trying to be clear about is that these 
actions are connected to Yucca Mountain, but we believe, and we 
are trying to clarify, that we have the authority to do these 
activities before receipt of a construction authorization from the 
NRC, without prejudicing the NRC decision-making process for 
the construction authorization.
	That is the focus of this.  It does not in any way affect NRC's 
authority over the nuclear safety aspects of licensing Yucca 
Mountain.  This is strictly about the connected actions and 
allowing us to start activities like building the Nevada railroad spur 
prior to issuance of a construction authorization for Yucca 
Mountain by the NRC, and that is important to be able to meet our 
schedule.  The last area that I just want to talk about very quickly 
is the several issues associated with trying to clarify Federal 
authority over duplicative regulatory review processes.  One is 
around air quality.  We are asking that the EPA be given authority 
to regulate our air quality permits for Yucca Mountain and not the 
State of Nevada.
	Secondly, for the materials to be buried at Yucca Mountain, 
right now the Resource Conservation and Recovery Act, RCRA, 
applies.  It is a law that is very focused on shallow burial of 
hazardous wastes.  It is our contention and belief that NRC 
licensing of the materials that we are putting into a deep geological 
repository is a much more stringent set of regulations than what the 
RCRA law would require, and we are asking elimination of the 
duplicative reviews and regulatory frameworks that both RCRA 
and NRC regulations would require.
	And then finally for those infrastructure improvements that I 
talked about before, we just want to clarify that EPA has authority 
over the environmental impact statement reviews of those 
connected actions.  So in summary, Mr. Chairman, the President, 
the Secretary, and I all believe that this legislation is critical to 
achieving that schedule that I gave you 2 months ago for opening 
Yucca Mountain by March of 2017, and we respectfully request 
that the Congress act on this legislation.
	[The prepared statement of Hon. Edward F. Sproat, III 
follows:]

PREPARED STATEMENT OF THE HON. EDWARD F. SPROAT, III, DIRECTOR, OFFICE OF 
CIVILIAN RADIOACTIVE WASTE MANAGEMENT, U.S. DEPARTMENT OF ENERGY

        Mr. Chairman and Members of the Committee, thank you for 
the opportunity to appear before you today to discuss H.R. 5360 
entitled the "Nuclear Fuel Management and Disposal Act." 
Enactment of this bill would significantly enhance the Nation's 
ability to manage and dispose of spent nuclear fuel and high-level 
radioactive waste.  I thank Chairman Barton for taking up this 
critical issue and introducing the legislation. 
        Over the last 50 years, our country has benefited greatly from 
nuclear energy and the power of the atom.  We need to ensure a 
strong and diversified energy mix to fuel our Nation's economy, 
and nuclear power is an important component of that mix.  
Currently more than 50,000 metric tons of spent nuclear fuel is 
located at more than 100 above-ground sites in 39 states, and every 
year reactors in the United States produce an additional 
approximately 2,000 metric tons of spent fuel.  In order to ensure 
the future viability of our nuclear generating capacity, we need a 
safe, permanent, geologic repository for spent nuclear fuel at 
Yucca Mountain.  
        Recently the Department announced its plans to submit a 
License Application for the repository to the Nuclear Regulatory 
Commission (NRC) by June 30, 2008, and to initiate repository 
operations in 2017.  This opening date of 2017 is a "best-
achievable schedule" and is predicated upon enactment of the 
pending legislation.  This proposed legislation addresses many of 
the uncertainties, currently beyond the control of the Department, 
that have the potential to significantly delay the opening date for 
the repository.  I would like to briefly summarize the bill's 
provisions for the Committee.
        First, the most important factor in moving the Yucca Mountain 
Project forward is the ability of the Department to have access to 
the Nuclear Waste Fund to ensure adequate funding is available to 
meet the requirements necessary to construct and operate a 
repository.  By making a technical budgetary scoring change, the 
proposed legislation would correct a structural budget problem by 
changing the budgetary treatment of the Nuclear Waste Fund fee, 
from mandatory receipts to discretionary offsetting collections 
equal to annual appropriations from the fund.  Funding for the 
Program would still have to be requested by the President and 
Congressional appropriations from the Fund would still be 
required.
        Second, to meet NRC licensing requirements it will also be 
necessary for Congress to approve the permanent withdrawal of 
the lands needed for the operational area of the repository.  The bill 
would withdraw permanently from public use approximately 
147,000 acres of land in Nye County, Nevada.  The Department is 
confident that the permanent withdrawal of land would meet the 
NRC licensing requirement for the Yucca Mountain repository and 
would help assure protection of public health and the environment.  
        Third, to promote efficient management and disposal of the 
current and projected future inventories of commercial spent 
nuclear fuel located at reactors throughout the United States, the 
proposed legislation would eliminate the current statutory 70,000 
metric ton cap on disposal capacity at Yucca Mountain and allow 
for maximum use of the mountain's true technical capacity.  By 
eliminating an artificial statutory limit and allowing the NRC to 
evaluate the actual capacity at Yucca Mountain, this provision 
would help provide for safe isolation of the Nation's entire 
commercial spent nuclear fuel inventory from existing reactors, 
including life extensions, and may postpone the need for a second 
repository elsewhere until the next century. 
        In addition, the proposed legislation includes a number of 
provisions that would promote prompt consideration of issues 
associated with the Yucca Mountain repository or would address 
other matters that have the potential to cause delays in moving 
forward with the Yucca Mountain Project.  
        First, the proposed legislation contains provisions that would 
provide for a more streamlined NRC licensing process by 
amending the licensing process in several respects.  In particular, 
the legislation would make clear that an application for 
construction authorization need not include information on surface 
facilities other than those facilities necessary for initial operations.  
The bill would also establish an expedited one-year schedule and a 
simplified, informal process for the NRC to consider the license 
amendment for the Department to receive and possess nuclear 
materials as well as for other future license amendment actions.  
The bill would also direct that the NRC, consistent with other 
provisions of the Nuclear Waste Policy Act of 1982, need not 
consider in its environmental review any actions taken outside of 
the geologic repository operations area; this will help focus the 
licensing process.
        Second, the proposed legislation would permit early initiation 
of infrastructure and pre-construction activities at the Yucca 
Mountain site for utility, communications, and safety upgrades, 
and the construction of a rail line to connect the Yucca Mountain 
site with the national rail network prior to receipt of an NRC 
construction authorization for the repository.  Construction of 
repository surface and sub-surface nuclear facilities would still 
require a construction authorization from the NRC.
        Third, the proposed legislation includes additional provisions 
that would simplify the regulatory framework for the repository.  
In particular, the legislation would designate the Environmental 
Protection Agency as the appropriate agency to issue, administer, 
and enforce any air quality permits required in connection with the 
Yucca Mountain repository.  Material owned, transported and 
stored in NRC-licensed containers and NRC-licensed materials at 
Yucca Mountain would also be exempt from Federal, State, and 
local environmental requirements under the Resource Conservation 
and Recovery Act.  The intent is to ensure that dual regulatory 
requirements do not apply to the same waste streams, once they are 
ready to be shipped to a repository for disposal.  These provisions 
would simplify the regulatory framework for the repository 
without compromising environmental protection or safety.
        Fourth, the proposed legislation would address the use of water 
needed to carry out the authorized functions under the Nuclear 
Waste Policy Act of 1982.  This legislation would allow the 
Department to be treated like a private business in requesting water 
access, resulting in non-discriminatory treatment of the 
Department.  The State of Nevada would still review and 
administer water allocation to the Department under this provision.  
        Fifth, the proposed legislation would address transportation and 
ensure the expedited movement of shipments to Yucca Mountain.  
In this regard, the legislation would provide the flexibility for the 
DOE to regulate the transport of spent nuclear fuel and high-level 
radioactive waste to the repository in the same manner that we 
currently conduct transportation of nuclear weapons.  The 
Department has been transporting such nuclear materials safely for 
many years.  In addressing this issue, we are not proposing to 
change in any way our route planning activities with State, Tribal 
and local authorities or how we work with them on emergency 
planning, training, and education.  This provision would reflect our 
longstanding commitment to transporting nuclear material in a 
manner that meets or exceeds NRC and Department of 
Transportation requirements for transportation of comparable 
material.  Likewise, it would permit continuing our longstanding 
practice of working with State, Tribal and local governments, 
transportation service providers, and other Federal agencies to 
utilize their resources and expertise to the maximum extent 
practicable.
        Finally, the proposed legislation would promote the licensing 
of new nuclear facilities by addressing the need for a regulatory 
determination of waste confidence by the NRC in connection with 
proceedings for those new nuclear facilities.  This provision directs 
the Commission to deem that sufficient capacity will be available 
to dispose of spent nuclear fuel in considering whether to permit 
the construction and operation of a nuclear reactor or a related 
facility.

Conclusion
        Nuclear power has been demonstrated to be a safe, reliable, and 
efficient source of power.  Enactment of the proposed legislation is 
necessary to allow the Yucca Mountain Project to move forward 
and to advance the Nation's energy independence, energy security, 
and national security objectives.  Mr. Chairman, I look forward to 
working with you and the Members of this Committee on this 
legislation to facilitate the construction and operation of the 
repository and to ensure the continued development of safe, clean, 
and efficient nuclear power in this country.  I would be pleased to 
answer any questions at this time. 
	MR. HALL.  Thank you.  Mr. Luis, Reyes, we recognize you, 
Executive Director for Operations, U.S. Nuclear Regulatory 
Commission, for an opening statement.
MR. REYES.  Thank you, Mr. Chairman.  Mr. Chairman and 
members of the committee, it is a pleasure to appear before you 
today on behalf of the Nuclear Regulatory Commission to discuss 
our capability to regulate the storage and disposal of spent nuclear 
fuel.  Specifically, I plan to address some of the national spent fuel 
management strategies embodied in various legislative proposals 
currently under consideration by Congress.  Since I plan to 
summarize my testimony, I will ask that my full statement be 
entered into the hearing record including an update for page six.
	MR. HALL.  Without objection.
	MR. REYES.  It is important to make clear at the outset that 
because of our role in the regulation of spent nuclear fuel and our 
potential role in considering an application for a high level 
radioactive waste repository at Yucca Mountain, Nevada, the 
Commission has not taken a position on most of the provisions in 
these legislative proposals.  Therefore, I would like to focus on the 
impact certain of the proposals will have on the NRC.  We have 
reviewed the language contained in the Senate appropriations bill 
and believe that the existing regulatory infrastructure could 
accommodate the alternative approaches to storing spent nuclear 
fuel.
	We believe that we may be able to review and license 
concurrently the large number of facilities anticipated in the bill.  
However, in order to do so, we will need sufficient funding, the 
receipt of high-quality license applications, and considerably more 
time to review and adjudicate the applications.  We have also 
reviewed S. 2610 and note that some provisions in the bill could 
affect the timing of our review of a Department of Energy 
application for authorization to receive and possess spent nuclear 
fuel and high level radioactive waste at Yucca Mountain.
	Specifically, S. 2610 will require us to reach a final decision on 
receipt and possession within 1 year with the possibility of a 6-
month extension.  Such a requirement wouldn't allow us enough 
time to complete both our safety review and the required 
adjudicatory proceeding in 1 year.  The changes to a national spent 
fuel management strategy that are being considered in the various 
bills involve shipping spent fuel.  The provisions in the bills may 
affect the transportation roles of the Department of Energy and the 
Department of Transportation.  They do not appear to affect our 
role with respect to certifying casks as specified in the Nuclear 
Waste Policy Act.
	The NRC believes that the existing transportation regulatory 
infrastructure can accommodate the various legislative actions 
being considered.  However, as with the other topics addressed in 
this testimony, our ability to complete this work will depend upon 
sufficient appropriations and submittal of complete high-quality 
applications.  In conclusion, the Commission understands the 
importance of addressing the storage, transportation, and disposal 
of high level radioactive waste in a systematic and integrated 
manner that is safe, timely, and efficient.
	We urge Congress to assure that sufficient appropriations be 
made available to adequately fund regulatory infrastructure 
activities and increased staffing prior to receipt of new license 
applications.  Provided that we receive sufficient resources and 
staffing levels are maintained and appropriate time is given to the 
agency to conduct its technical reviews and adjudications, we 
believe we can reach decisions on the relevant applications in a 
timely fashion, assuming high-quality license applications are 
received.
	On behalf of the Commission, I appreciate the opportunity to 
testify today, and I look forward to working with you on this 
legislation, and I will take any questions you may have now.
	[The prepared statement of Luis A. Reyes follows:]

PREPARED STATEMENT OF LUIS A. REYES, EXECUTIVE DIRECTOR 
FOR OPERATIONS, U.S. NUCLEAR REGULATORY COMMISSION

Introduction
        Mr. Chairman and Members of the Committee, it is a pleasure 
to appear before you today to discuss the U.S. Nuclear Regulatory 
Commission's (NRC's) capability to regulate long-term and short-
term spent nuclear fuel storage and disposal.  Specifically, I plan to 
address some of the national spent fuel management strategies that 
are being considered in S. 2589, the "Nuclear Fuel Management 
and Disposal Act;" S. 2610, a bill "to enhance the management and 
disposal of spent nuclear fuel and high level radioactive waste, and 
for other purposes;" and Section 313 of H.R. 5427, the "Energy 
and Water Development Appropriations Act, 2007."	
        It is important to make clear at the outset that, because of the 
NRC's role in the regulation of spent nuclear fuel and the potential 
application for a high-level radioactive waste repository at Yucca 
Mountain, Nevada, the Commission has not taken a position on 
most of the provisions in these legislative proposals.  Therefore, I 
would like to focus on the impact the following proposals would 
have on the NRC.

Interim Storage
        Spent fuel storage and transportation are and can be 
accomplished both safely and securely, consistent with the current 
regulatory framework, regardless of the number of sites and their 
locations.  The NRC has stated in its Waste Confidence Decision 
that, if necessary, spent fuel generated in any reactor can be stored 
safely and without significant environmental impact in its spent 
fuel storage pool or at either on site or off site interim storage 
facilities for at least 30 years beyond the licensed operational life 
of the reactor.   In general, the Commission concluded that, if 
stored properly, spent fuel presents a low risk to the public during 
normal operation or under potential credible accident conditions 
and can be stored safely in either wet or dry storage systems 
without significant environmental impact for at least 100 years.
        It is important to note that the threat of sabotage has always 
been a factor in the design and licensing of spent fuel storage 
facilities.  Following the September 11, 2001 terrorist attacks, the 
NRC issued Orders to licensees to implement additional security 
measures, and undertook a comprehensive reassessment of the 
security of commercial nuclear facilities including those for spent 
fuel storage.  Since 9/11, NRC has issued Orders to licensees to 
implement additional security measures.  Dry spent fuel storage 
casks are robust structures, which are highly resistant to significant 
damage, and we are confident that storage of spent fuel in dry 
casks remains a safe and secure spent fuel management strategy.  
Spent fuel pools are strong structures constructed of very thick 
steel-reinforced concrete walls with stainless steel liners located 
inside protected areas.  The NRC's domestic safeguards program is 
focused on physically protecting and controlling spent nuclear fuel 
against sabotage, theft, and diversion.
        The NRC supports efforts to address interim storage issues in a 
timely manner.  Nuclear power plants need to increase their spent 
fuel storage capacity to support plant operations.  In order to 
maintain operational capability in the spent fuel pool, including 
full core off load capability, spent fuel must periodically be moved 
to dry cask storage.  There are currently 43 licensed independent 
spent fuel storage installations (ISFSIs), and we expect in the next 
few years that this number will grow to over 50, as more power 
plants contend with filled spent fuel pools.  The 43 current sites 
have successfully loaded and stored over 800 casks.  An 
exceptional safety record has been achieved using dry cask storage 
technology. 
        Safety and security are the key elements in a comprehensive 
spent fuel management strategy.  We must also be cognizant of the 
need for efficiency and effectiveness in every element of spent fuel 
handling, storage, and transport systems.  The NRC believes that 
instituting canister and infrastructure standards will make storage 
and transportation both safer and easier, facilitating interoperability 
among handling and loading activities at different reactors and 
ISFSIs.  Standards will also improve the ease with which these 
activities can be licensed.  Canister and infrastructure standards 
should be developed with input from industry, taking advantage of 
lessons learned from previous designs.
        The legislative proposal in H.R. 5427, as approved by the 
Senate Committee on Appropriations, includes new consolidation 
and preparation (CAP) facilities as part of a new national spent 
fuel management strategy.  This proposal would significantly 
affect the NRC's spent fuel storage oversight program and 
resource needs.   Specifically, H.R. 5427 calls for a high number of 
new storage facilities to be reviewed and licensed by NRC in a 
very short time span.  Currently, the NRC has neither the monetary 
resources nor the necessary employee resources to support the 
technical review and adjudication of a large number of concurrent 
storage license applications as considered in H.R. 5427.  Also, the 
time frames in the draft legislation, which must allow for license 
preparation by the applicant, environmental and safety reviews by 
NRC and completion of associated hearings before the Atomic 
Safety and Licensing Board Panel, are very short and likely not 
achievable.
        The NRC has reviewed the proposed legislation and believes 
that the existing regulatory infrastructure could accommodate the 
alternative approaches outlined in H.R. 5427.  Although the NRC 
believes that it may be able to review and license a large number of 
new facilities anticipated in H.R. 5427 concurrently, the following 
items would be necessary prerequisites for success:  sufficient 
funding; receipt of complete, high-quality license applications; and 
considerably more time to review and adjudicate the applications.  
NRC believes that centralized storage or storage at multiple sites in 
different locations can be achieved safely, consistent with our 
regulatory system.  One must approach spent fuel management as 
an integrated system, balancing the very small risks associated 
with storage and transportation components.   The Commission is 
open to working with our stakeholders in support of a systematic 
and integrated approach that is safe, timely, and efficient.  

Transportation
        The NRC believes that the current, well-established 
transportation regulatory system is protective of public health and 
safety.  Spent nuclear fuel has been safely transported in the United 
States for more than 30 years.  There has never been an accident 
involving the transportation of spent fuel resulting in a radiological 
release or death or injury from radiation.  The National Academy 
of Sciences recently completed a three-year study that concluded 
that the radiological risks of spent fuel transportation are low and 
well understood and that the existing regulations are adequate to 
ensure safety.
        Any of the changes to a national spent fuel management 
strategy that are being considered (such as in S. 2589, S. 2610, and 
H.R. 5427) will involve shipping spent fuel.  Federal regulation of 
spent fuel transportation is shared by the U.S. Department of 
Transportation (DOT) and the NRC.  Generally, NRC does not 
regulate the U.S. Department of Energy's (DOE's) shipments of 
radioactive material; however, the Nuclear Waste Policy Act 
requires DOE to utilize NRC-certified casks for spent fuel 
shipments to a repository and to follow NRC's advance 
notification requirements.   The Commission has reviewed and 
certified a number of package designs which could be used to 
transport spent fuel.  Provisions of S. 2589, S. 2610, and H.R. 5427 
may affect the transportation roles of DOE and DOT, but do not 
appear to affect the NRC role to certify casks as specified in the 
Nuclear Waste Policy Act.  Section 313(c) of H.R. 5427 calls for 
licensing of DOE's spent fuel shipments by NRC and DOT.  This 
means that NRC's physical protection requirements would be 
applicable to all of the DOE's shipments of spent nuclear fuel, and 
to this extent H.R. 5427 will increase NRC's responsibilities.
        The NRC believes that the existing transportation regulatory 
infrastructure can accommodate the various legislative actions 
being considered.   The transportation aspects of the various 
options and facilities do not present new or inherently different 
technical challenges. New transportation packages will need to be 
designed and certified to address:  DOE initiatives on transport, 
aging, and disposal canisters; new types of spent fuel; or existing 
spent fuel that is not covered by current designs.   As with the 
other topics addressed in this testimony, the NRC's ability to 
complete this work will depend upon sufficient appropriations and 
the submittal of complete, high quality applications.

Disposal
        The NRC understands the importance of addressing disposal of 
high-level radioactive waste in a manner that is both safe and 
timely.  The NRC has a record of moving responsibly and 
promptly to meet its obligations under the Nuclear Waste Policy 
Act.  To prepare for conducting an independent safety review of a 
Yucca Mountain application, the Commission continues to conduct 
pre-license application activities aimed at providing guidance so 
that DOE can provide a high quality application.  NRC is confident 
that we will be ready to receive an application if submitted in 2008 
as is currently proposed by DOE.  We are also confident that we 
will reach a timely decision on the application provided that the 
application is complete and of high-quality.
        The NRC offers the following comments on provisions in the 
proposed legislation, S. 2610, that could affect the timing of the 
NRC's review of a DOE application for an authorization to receive 
and possess spent nuclear fuel and high-level radioactive waste at 
Yucca Mountain.  The proposed legislation would require the NRC 
to reach a final decision on receipt and possession within one year 
(with the possibility of a six-month extension).  This proposed 
requirement does not give the NRC sufficient time to complete its 
necessary proceedings.  First, the NRC cannot complete both its 
safety review and the adjudicatory proceeding in one year.  In 
particular, NRC will need to conduct a hearing.  Even under the 
informal hearing process proposed in S. 2610, the NRC would 
need to adjudicate issues raised by participants that are admitted as 
contentions by the licensing board.  It is difficult to predict the 
amount of time it will take to complete the review and adjudicate 
issues in controversy without knowing the scope and number of 
issues that will require adjudication as well as the number of 
parties involved.  Second, the proposed legislation's provision 
regarding surface facilities could be read to provide for staged 
consideration of surface facilities.  In this case, the NRC would 
review certain facilities during the construction authorization phase 
and other facilities during the later receipt and possession phase.  
Facilities that otherwise could have been reviewed in the 
construction authorization phase might be shifted to the receipt and 
possession phase, increasing the scope of review for that phase 
despite the reduced time allowed for that review. 
        S. 2589 and S. 2610 also contain a provision requiring the 
NRC, in deciding whether to permit the construction or operation 
of a nuclear reactor or any related facilities, to deem, without 
further consideration, that sufficient capacity will be available in a 
timely manner to dispose of spent nuclear fuel and high-level 
radioactive waste.  H.R. 5427 contains a similar provision.  The 
NRC does not object to these provisions of the legislation.

Conclusion	
        The NRC fully understands the importance of addressing the 
storage, transportation and disposal of high-level radioactive waste 
in a systematic and integrated manner that is safe, timely, and 
efficient.  We would urge the Congress to assure that sufficient 
appropriations be made available to adequately fund regulatory 
infrastructure activities and increased staffing prior to the receipt 
of license applications initiating licensing activities.  Provided 
sufficient resources and staffing levels are maintained and 
appropriate time is given to the Agency to conduct the necessary 
technical reviews and adjudications, we believe that we can reach 
decisions on the relevant applications in a timely fashion, assuming 
high-quality license applications are received.
        We appreciate the opportunity to testify today and look 
forward to working with you on this legislation.

	MR. HALL.  We thank you, Mr. Reyes.  Mr. Sproat, are you 
familiar with the concept called adaptive staging by the National 
Research Council?
	MR. SPROAT.  I haven't read the report, Mr. Chairman, but I am 
aware of the concept and have done some reading about how other 
countries have utilized or are thinking of utilizing a concept like 
that.
	MR. HALL.  Are you in position to maybe give us a good idea 
of how it could be applied to the Yucca Mountain program?
	MR. SPROAT.  It is interesting, Mr. Chairman.  When I was in 
front of this committee about 5 years ago when I was still with 
Excelon, somebody asked me a question very similar to that in 
terms of how do you think the licensing process for Yucca 
Mountain should proceed, and my thoughts on that haven't really 
changed very much since then.  The way the current licensing 
process for Yucca Mountain exists under 10 C.F.R. Part 63, it is a 
multi-step process that requires a construction authorization first, 
an operating license second, and then a decision that actually 
permanently closes the repository, third.
	Unfortunately, the way Part 63 is written right now all of the 
requirements that the repository has to meet including how it needs 
to perform up to a million years into the future, depending how the 
EPA standard is resolved, all of that analysis has to be shown, 
reviewed, and verified prior to receipt of a construction 
authorization.  As Chairman Barton, I believe, said earlier this 
afternoon, we are going to know a heck of a lot more about the 
mountain, how it reacts, about new technologies that we haven't 
even thought about 50 years from now, 75 years from now, than 
we do now.
	So, it makes sense to me that we take a similar approach here.  
Unfortunately, as 10 C.F.R. Part 63 is written right now, it really is 
a very front-end loaded process.  And just to give you an example, 
in Part 63 there are criteria along the different steps of the process 
that the Commission needs defined before they can make a 
decision.  Unfortunately, in Part 63, for the decision to close the 
repository, there are actually no acceptance criteria for the 
Commission to find have been met before they make a decision to 
close, and so it is left undefined in the current regulatory process.
	MR. HALL.  What would it take for DOE to implement the 
concept if you have gone that far into it?
	MR. SPROAT.  Well, we couldn't implement a concept ourself.  
It really is the NRC's regulations under 10 C.F.R. and in this case 
it is 10 C.F.R. Part 63 as it is currently written.  It is the regulatory 
construct for licensing Yucca Mountain, and that regulatory 
framework would have to be changed.
	MR. HALL.  And how would it impact the repository schedule 
and resources just in your opinion?
	MR. SPROAT.  I guess it is too early for me to be able to answer 
that question.  It would really depend on how it would change.
	MR. HALL.  Mr. Reyes, in the industry's testimony they 
indicate that the interim storage could be licensed expeditiously.  
How many licenses has the NRC issued for away from reactor 
independent spent fuel storage installations?
	MR. REYES.  There has been only one facility that has been 
licensed away from reactors.
	MR. HALL.  How long did that take?
	MR. REYES.  It took us about 8 years from application to final 
issue of the license.
	MR. HALL.  What do we have to hope for and to look to in 
future issuances?
	MR. REYES.  We could expedite the process.  This particular 
example, the application was changed by the applicant several 
times, so there were hearings that required a lot of work by the 
staff, so we hope we could do it in a faster way but with only one 
example it is hard to know how long it will take us.
	MR. HALL.  What is a reasonable explanation for it taking that 
long?
	MR. REYES.  Well, I mentioned in my testimony emphasis on 
high-quality applications.  That particular application, the design 
was changed through the process, and the hearings identified 
technical issues that needed to be pursued.  We think a facility 
away from a reactor that has a good application, 2 years perhaps 
with an extension of 6 additional months would be sufficient.
	MR. HALL.  I think my time expired.  I recognize Mr. Boucher.
	MR. BOUCHER.  Thank you very much, Mr. Chairman.  I want 
to also thank both of our witnesses for their testimony today.  And, 
Mr. Sproat, again let me say how much I admire your 
determination and confidence to move this program forward.  
Along with others who have spoken from this panel, I also strongly 
support the Yucca project and wish you well and offer you 
assistance as you move the project forward.  When do you think 
you will have your funding schedule to be submitted to us?
	MR. SPROAT.  I believe it should be very close--no later than 
the beginning of November.  It should be around the end of 
October because we have it basically built now, but we are 
bringing in an outside, experienced company to do an independent 
review of our construction schedule, the cash flows associated with 
it so when we give you something that is more than just DOE 
saying here are the numbers.
	MR. BOUCHER.  That is a timely submittal, and we will 
certainly look forward to receiving it and reviewing it, and then 
having further discussions with you.  I noted your support in your 
testimony for the Administration's bill that has been put forward, 
and I also find most of the provisions in that measure to be 
constructive, but I want to ask you questions about two of the 
provisions of the bill.  One thing the bill does not do is protect the 
$19 billion corpus that is currently in the Nuclear Waste Fund, 
monies that have been paid into the Fund to date and not 
appropriated for the Yucca Mountain project.
	So my question to you is this.  Can you build the Yucca 
Mountain project and have it open by 2017 only using the 
prospective payments of about $750 million annually that will be 
coming into the Fund?  Over the 10-year period between now and 
2017 that is about $7.5 billion.  Is that going to be enough for you 
to build Yucca Mountain?
	MR. SPROAT.  Well, we don't have the final cash flows yet, but 
to maintain that best achievable schedule that we put out, where we 
would be both building the repository and building the 
transportation infrastructure, particularly the rail line, it is highly 
likely that we will exceed that amount in certain peak years of 
funding probably, but I wouldn't expect to reach that peak funding 
profile for probably about another 10 to 11 years from where we 
are right now.
	MR. BOUCHER.  Well, you are supposed to have it open 10 
years from next year and so at some point surely short of 10 years 
from now you would reach a peak funding profile.
	MR. SPROAT.  You are correct.  I am wrong in that number.  I 
got the math wrong.  It is probably closer to 6 to 7 years out in 
terms of where that peak funding would occur.
	MR. BOUCHER.  Okay.  So what you are saying is you are 
going to need some of this $19 billion that is within the corpus of 
the Fund itself.  If the Administration's bill doesn't protect that 
money, what is your solution to that going to be?
	MR. SPROAT.  Well, I am not sure if it doesn't--I certainly can't 
address whether it protects it or not.  I know there have been an 
awful lot of discussions and a lot of--at least within the Department 
we believe that there are a number of things that we can't use that 
fund for and so, from my perspective, I believe the Fund is 
protected.
	MR. BOUCHER.  Mr. Sproat, there is nothing in the legislation 
that would require that these monies be set aside and reserved 
exclusively for the Yucca Mountain program and therein lies the 
basic problem.  And so based upon the testimony that I am hearing 
today, I think we can probably anticipate you coming to the 
Congress and asking not only for the $750 million that will flow 
prospectively into that fund for your Yucca Mountain project, but 
also general appropriations on top of that.
	MR. SPROAT.  For the next--between now and the time we 
reach submittal of the license application in the next 2 ï¿½ years, the 
request that we proposed in the legislation for access to the annual 
receipts will be enough to get us through license application 
submittal for sure.  At some point in time after that--and once I get 
the cash flows completed, I will be able to tell you with much more 
certainty exactly when--that amount of required funding would be 
exceeded.
	MR. BOUCHER.  All right.  Well, fair enough, and this is a 
subject to be continued, but let me simply reiterate our concern that 
the legislation does not protect this $19 billion and assure that 
whatever portion of it you have to have you actually can get at the 
time that you need it.  The second issue that I want to raise with 
you is that provision of the legislation that would essentially deem 
that there is sufficient capacity at Yucca Mountain to give waste 
confidence with respect to the opening of new nuclear plants in the 
United States.
	I ask these questions from a perspective of one who supports 
the opening of new nuclear power plants.  I think this has to be a 
part of our energy mix going forward, and additional nuclear 
power helps us with energy independence issues and with global 
warming concerns, and a range of other policy objectives, and so I 
think it is necessary.  I am a little bit concerned, however, that the 
legislation says that we as Congress will simply make what is a 
technical determination that there is sufficient capacity at Yucca to 
accommodate all of the waste that will flow from newly licensed 
facilities.
	This is a decision that the NRC has the authority to make and 
has historically been making, and in fact has already, I am told, 
found from a technical standpoint that there is sufficient capacity 
up until the year 2025, and the NRC has continuing authority to 
adjust that estimate and make additional findings as events 
warrant.  Why is not that ability of the NRC to make these 
determinations sufficient? Why are nuclear generating companies 
not likely to get through a licensing process in the absence of 
Congress actually making a factual determination that I frankly 
think we can't make with regard to deeming sufficient capacity?
	MR. SPROAT.  That is a very good question.  I am not sure the 
concern is quite as limited to the issue of is there capacity in Yucca 
Mountain.  I think it is a little bit broader issue in terms of do we as 
a country have reasonable assurance that we have a path to dispose 
of or otherwise utilize our spent nuclear fuel coming out of our 
nuclear fleet.  One of the things that is different today than where 
we were a year ago, with this issue is that we have as an 
Administration policy, said we are going to move forward with 
GNEP and with closing the fuel cycle.
	Now there are a lot of questions around exactly the time line 
for that, how long that is going to take to proceed.  But what we 
are arguing is that given that we have made a decision that we are 
just not going to take all fuel and put it in the ground forever, and 
that given the progress we are making and the schedules we have 
set for moving Yucca Mountain forward, there is a reasonable 
amount of data there for the Congress to make a determination 
that, in terms of a national level determination on waste 
confidence, do we have a good idea--do we have confidence that 
we know what we are going to do with spent nuclear waste?  We 
think the answer is yes.  The question of capacity of Yucca 
Mountain is a little bit, at least the way I view it, is a little bit of a 
separate issue of the 70,000 metric ton limit and getting that lifted.
	MR. BOUCHER.  Okay.  Well, let me turn to Mr. Reyes, and ask 
you a couple of questions about the idea of interim storage.  In 
your statement you say that you support efforts to address interim 
storage generally.  You also say that it could be accommodated 
within your regulatory structure, but you also say that you do not 
have the financial resources or the human resources with which to 
implement a regulatory program for interim storage, and so what 
you are basically saying is you can do it but you would have to 
have the money to do it with.
	MR. REYES.  That is correct.
	MR. BOUCHER.  Have you received any kind of assurance from 
shall we say the sponsors of this provision and the Senate 
appropriations bill that would mandate an interim storage program 
that you are going to be appropriated the money in order to carry 
this forward?
	MR. REYES.  We have had no discussions on that subject so we 
have no information regarding our budget, but we would have to 
receive appropriations or budget starting in fiscal year 2007 based 
on the proposed schedule.
	MR. BOUCHER.  So you would actually have to have money 
next year and we are now debating the FY 07 appropriations bills.  
We are in the season for doing that.  Do you see anywhere in any 
of the various appropriations bills an appropriation that would give 
you the money you need to do this in FY 07?
	MR. REYES.  There is a discussion of a very modest amount, 
but let me give you how much of an impact this could be.  If you 
end up with 30, some away from reactor facilities that have to be 
licensed in a short amount of time, you are talking in the order of 
$300 million and a couple hundred FTE, full-time equivalents, so 
that in that worst case scenario there is a very significant impact.
	MR. BOUCHER.  Is there anything in any of the appropriations 
bills that would even get you started with this?
	MR. REYES.  No.
	MR. BOUCHER.  No.  All right.  Thank you, Mr. Reyes.  Thank 
you, Mr. Chairman.
	MR. SHIMKUS.  [Presiding]  I always enjoy Mr. Boucher and 
his great questions.  I would like to now recognize the doctor from 
Georgia, Dr. Norwood.
	MR. NORWOOD.  Thank you very much, Mr. Chairman.  Mr. 
Sproat, I am glad to see you back.  We had you, I think, in July.
	MR. SPROAT.  Yes, sir.
	MR. NORWOOD.  You had been on the job about 3 weeks at the 
time.  I am wondering how you feel about it now.
	MR. SPROAT.  Even better.
	MR. NORWOOD.  Are you as positive now that you will be able 
to open Yucca Mountain by 2017?
	MR. SPROAT.  As I said in the beginning of my opening 
statement, if I can get this legislative package that we have sent up 
here to the Hill to address some of these key issues around some of 
the issues that we need to get fixed around Yucca Mountain, my 
answer is yes.
	MR. NORWOOD.  You heard Chairman Barton talk about the 
interim storage.  You are going to have to put it at Yucca to get it 
through this committee.  I just want you to know.  We can 
probably go along with a lot of the stuff that you want to do in 
there, but I don't think you are going to find us very willing to 
store it around the country on an interim basis.
	MR. SPROAT.  Well, just for clarification the Administration 
has not proposed that, sir.
	MR. NORWOOD.  Yeah, but I know who did.  Let me ask you if 
I may, have you had any time to look back or ask any questions 
over at the Department of what they have been doing the last 10 
years?
	MR. SPROAT.  Yes, I have, sir.
	MR. NORWOOD.  I mean it borders on criminal, I think. How 
much money have we spent on Yucca in the last 10 years, do you 
know that?
	MR. SPROAT.   I don't have the exact numbers.
	MR. NORWOOD.  When you all look it up, tell him, then he can 
tell me.
	MR. SPROAT.  Around $9 billion.
	MR. NORWOOD.  Nine billion dollars.  Almost a billion a year.
	MR. SPROAT.  Yes.
	MR. NORWOOD.  And what have we gotten for that?
	MR. SPROAT.  We have a lot of scientific information and 
understanding of the mountain, of its geology, how it developed in 
the past and how we expect it to perform in the future, and we have 
a draft license application and a first cut at design of the surface 
facilities that quite frankly weren't adequate to docket the license 
application back in 2004.  And so we are fixing the inadequacies in 
terms of that surface design and in terms of the further analysis of 
the mountain and how it is going to perform, or at least how we 
project it to perform out in the--not only beyond 10,000 years but 
out to a million years, which is what the current EPA draft 
standard requires us to do.  So there is a lot of analysis still being 
done with that scientific data that has been collected over those 
years to put together that license application that I need to send to 
the NRC in 22 months.
	MR. NORWOOD.  My questions are based on a thought that 
keeps running through my head.  The American people built the 
Pentagon in 16 months.  We have spent $10 billion in 10 years and 
now we are saying we have got to have 10 more years to keep 
doing analysis.  Does that bother you any or is it just me?
	MR. SPROAT.  No, no, it would certainly bother me, and let me 
just clarify we are certainly not going to spend the next 10 years 
doing analysis.  What we are doing now is design and the actual 
completion of the license application based on the analyses that 
have been done.  And then we are going to spend the next at least 4 
years defending that license application through the NRC licensing 
process.
	MR. NORWOOD.  Four years, Mr. Reyes?  He got to spend 4 
years over there defending his application?
	MR. REYES.  I think the legislation called for 3 years, but you 
have to remember there will be a lot of hearings involved in this 
process so it is more than a technical review.  We have to defend 
our decision that it is technically sound which we are ready to do 
upon the application but it does take time, sir.
	MR. NORWOOD.  So we could build two Pentagons by the time 
he defends his application.  I mean something is wrong with this 
basically that we can't be a little more efficient.  I have no idea 
what you do over there.  I have no idea what the rules are.  All I 
know is that that is an inordinate amount of time.  Didn't you just 
say earlier that a year and a half--I am sorry I didn't hear all of it, 
but you said something to the effect that a year and a half wasn't 
going to be near enough time for you to do something.
	MR. REYES.  This is a license for a facility for interim storage 
away from a reactor.
	MR. NORWOOD.  So you want 2 ï¿½ years to do that?
	MR. REYES.  Yes.
	MR. NORWOOD.  Mr. Chairman, I can't do anything.  I yield 
back.
	MR. SPROAT.  Mr. Norwood, if I could just clarify.
	MR. NORWOOD.  Yes, sir, Mr. Sproat.
	MR. SPROAT.  The cost numbers, that was $10 billion over the 
life of the program, not $10 billion total cost over the last 9 or 10 
years, so I just wanted to clarify that.
	MR. NORWOOD.  Thank you, Mr. Sproat.
	MR. SPROAT.  It doesn't make it any better.
	MR. NORWOOD.  No, it doesn't.  And I am counting on you.  
You come from the real world.  I am counting on you to get this 
done and I am sure you can get it done before 2017.
	MR. SPROAT.  I will do my best.
	MR. NORWOOD.  Thank you, sir.
	MR. SHIMKUS.  The gentleman yields back.  The Chair 
recognizes Dr. Murphy from Pennsylvania.
	MR. MURPHY.  Thank you. Mr. Chairman, and thank you both 
for being here.  I wanted to follow up on some of these aspects too 
in terms of these other sites because I recognize we are trying to 
balance our needs to build more nuclear power plants and also 
dealing with this spent fuel.  For example, on these temporary sites 
will they all be the same size or different sizes, and how much 
would each one cost?
	MR. REYES.  Well, the States will have to decide where they 
will have to put the interim locations and you have a lot of 
combinations.  You have States which have operating reactors and 
licensed storage facilities at the reactor.  You have States that have 
no reactors but do have storage facilities because there used to be 
an operating reactor there.  So under the bill, as I understand it, the 
States will have to make a decision where to put the interim 
storage.
	MR. MURPHY.  But how much will each one of these facilities 
cost?
	MR. REYES.  I can only give you the review cost through the 
licensing process.  I think the industry would be in a better position 
to talk about the cost of building it.
	MR. SPROAT.  I am probably the only one in the room that 
actually was involved with designing and constructing an interim 
spent fuel storage facility, but that was at a reactor so it was on 
land we owned and from the time we decided to do it to the time 
we actually completed construction was probably in the 
neighborhood of about between 5 and 6 years; but that was a 
relatively simple approach compared to what we are talking about 
here, where it is away from reactors.  They have to do an 
environmental impact statement.  You have to have control of the 
land.  It is more than just designing it and licensing the interim 
storage facility itself, which is pretty straightforward.  It would 
obviously depend on the size, but you are talking at least, at least, 
$15 million a piece and that may be low depending on the amount 
of litigation and licensing time and processing time to finally get 
approval to actually build it.
	The cost to build these by themselves is not that significant.  It 
is basically a concrete pad with a fence, multiple fences, security 
systems around it, and the infrastructure to bring the spent fuel 
casks to the pads so the construction itself of the facility is not that-
-
	MR. MURPHY.  The facility would have to be pretty secure in 
terms of bomb proof?  
	MR. SPROAT.  The design bases for those facilities, at least the 
ones we built, I would not classify them as bomb proof but in 
terms of what the design basis threats are, I can't talk about those.
	MR. MURPHY.  Basically similar to what we have at nuclear 
power plants?
	MR. SPROAT.  Yes.
	MR. MURPHY.  But you are saying it would be $15 million.  
How many years would it take?  You said 5 or 6 years?
	MR. SPROAT.  Actually the critical path on building a facility 
away from the reactor would be the siting process, both the 
environmental impact statement and whatever litigation would be 
associated with the environmental impact statement and the NRC 
licensing process.  Once you have that, the actual construction 
itself assuming the transportation infrastructure, was relatively 
simple.  You could probably do it in a year, a year and 18 months.
	MR. MURPHY.  Construction in a year and 18 months.
	MR. SPROAT.  Yes.
	MR. MURPHY.  And all the other processes could add another 5 
or 6 years to that?
	MR. SPROAT.  Yes.
	MR. MURPHY.  If we have 5 or 6 years worth of helping 
attorneys and engineers and then a year and 18 months of actually 
building it, and yet the actual use of Yucca Mountain is 10, 11 
years away, that seems pretty close, and we would spend several 
billion dollars along the way to build these interim facilities.
	MR. SPROAT.  That is the conclusion I drew.  I think the last 
time I was here the committee asked me that exact same question, 
and that is what I said.  It is pretty close time-wise, depending on 
how these interim storage facilities are sited and where they are 
sited, and the amount of time it takes to actually get a license to 
build them.
	MR. MURPHY.  So in closeness of time wise, and this is an 
issue I remember coming up before, and I am wondering if we 
have changed much, and that is it will cost us a lot of money.  
They will be ready just before Yucca Mountain will be opening 
anyway and so why are we doing this?  I guess that we all--that is 
the question.
	MR. SPROAT.  That is a valid question.
	MR. MURPHY.  And do we have an answer?  Will we have one 
today on that?
	MR. SPROAT.  I don't.
	MR. MURPHY.  Okay.  On that point, I don't have any more 
questions either.
	MR. SHIMKUS.  The gentleman yields back his time.  The Chair 
recognizes the gentleman from Texas, Mr. Green.
	MR. GREEN.  Thank you, Mr. Chairman.  I want to follow up 
my colleague from Pennsylvania because that is my concern.  And 
I have a district in Houston and we benefit from having a small 
portion of our electricity generated by nuclear power, and I think in 
our country we know that we have to have lots of ways to heat and 
cool our homes and nuclear power has to be an increasing use of it.  
My concern is that if we follow the path of Senate appropriations 
and we build this interim facility for nuclear waste, will that 
facility likely hold all the nuclear waste that is currently being 
stored at our own site power plants?  Is that interim possibility, 
will it store what we have at South Texas or Glenrose in Texas or 
elsewhere?
	MR. SPROAT.  I am not sure, as I read the appropriations bill 
language from the Senate, I don't believe it is that specific in that it 
specifies sizes or locations.  It gives a broad direction in terms of a 
number of potential, up to a certain maximum number, sites to be 
funded.  It would depend on each State.  As I understand the 
proposal, it would depend on each State to determine location and 
size of those facilities.  Now one of the things I would clarify is 
that even if interim storage facilities are built, they would be built 
to handle spent fuel that has already come out of spent fuel pools at 
reactors and put into casks so they would strictly be dry storage in 
cask facilities.  We would still have spent fuel at the reactor sites in 
the spent fuel pools.
	MR. GREEN.  But that is--I understand that because that was 
stated anyway.  Does your office have the resources and ability to 
begin work on new interim storage facilities without losing the 
focus on the progress on Yucca Mountain?
	MR. SPROAT.  Not at the current time.
	MR. GREEN.  So you would need more resources.  Since it 
would be difficult to pursue two nuclear storage projects at once, 
do you believe the effort behind this recent interim storage 
legislation is an intentional effort to delay or kill Yucca Mountain?
	MR. SPROAT.  I really have no opinion on that.  I can't speak to 
that, sir.
	MR. GREEN.  Mr. Reyes, if Congress and DOE go down the 
path of limiting the amount of interim storage capacity and 
progress on Yucca slows or halts, what will be the impact when 
you are reviewing applications for new reactors to new or existing 
nuclear power plants?
	MR. REYES.  The Commission has stated that we believe there 
is a confidence and solution to the waste would be obtained in this 
country so it would not have an immediate impact on the new 
license application but I think if you talk to the industry in their 
mind they want more confirmation than that before they invest 
money, so I think it is a decision from the private industry that it is 
looking for more confirmation that there is a final solution.
	MR. GREEN.  Both TXU and NRG Energy have announced 
plans to expand ours we have in Texas, and again we have to have 
lots of different ways to heat and cool our homes so both in South 
Texas and Comanche Peak.  Can they go forward with their plans 
without Yucca Mountain on track?
	MR. REYES.  Yes.  They can go forward.  I think as a business 
decision you have to wonder if that is a good decision, but 
technically we can review and issue a license for new applications 
without having the issues that we are discussing fully resolved, but 
it raises a question with the industry as committing the resources, 
whether that is a good business decision.  
	MR. GREEN.  Well, again, if we don't have nuclear then we are 
going to see even more coal-fired plants.  That may be okay for 
some parts of the country but some folks in Texas would rather not 
have that type of coal, and nuclear is a non-polluting substitute 
although again in Texas we like to use natural gas, but since we are 
still worried about our chemical industry we don't want to compete 
with that.
	MR. MURPHY.  We like coal in Pennsylvania.  It is a nice thing.
	MR. GREEN.  I imagine you all like coal in Pennsylvania.  We 
used to like natural gas until we almost were running out.  Thank 
you, Mr. Chairman.
	MR. SHIMKUS.  Thank you.  I recognize myself for a couple 
minutes.  Mr. Sproat, how many of our nuclear facilities are almost 
at maximum capacity of their interim storage on site, do you know 
that?  In the energy bill there was a couple that we were at risk of 
having to make that tough decision of closing because they had no 
place to then move because they are almost at max capacity.  Do 
we know that number?
	MR. SPROAT.  Just so I am clear, Congressman.  Is your 
question around maximum capacity in their spent fuel pool or their 
interim storage facilities?
	MR. SHIMKUS.  Well--
	MR. SPROAT.  Let me try and answer your question the best I 
can without--because I don't know the exact numbers.  But, for 
example, the plant that I was directly involved with licensing, 
building, and running, Limerick is currently going through--its 
spent fuel pool is going to be full within the next 24 months.  
Limerick Unit One came on line in 1984 and Limerick number two 
came on line in 1987 or 1988.  So that kind of gives you an idea 
after plants have been on line between 15 to 16 years is when their 
spent fuel pools are becoming full.  At that point in time they need 
to have an interim spent fuel storage facility licensed on site and 
ready to start unloading their fuel pools and putting those fuel 
bundles in their casks.
	MR. SHIMKUS.  Let me ask, when was the last nuclear power 
plant built in this country because you are talking about 20 years so 
when was the last--
	MR. REYES.  The last one licensed was in 1996 but that plant 
took a long, long time to construct.
	MR. SHIMKUS.  So there are probably about 42 sites that have 
dry cask storage.
	MR. REYES.  The issue I think if I could form the issue a little 
different, there is no limit to dry cask storage at the site, but it is a 
large investment.  If you are operating the facility and you don't 
see a final solution in the horizon you want to have the capability 
to unload the fuel from the reactor for maintenance and repairs, et 
cetera, et cetera.  You want to keep that flexibility.  So because 
there is no final solution on the horizon you could continue to 
invest in dry cask storage.  It is a large investment.  It has to be 
reviewed by the NRC.  It takes several years to go through the 
environmental review process and the safety process so it is a 
never-ending process where the industry pays to the Nuclear Waste 
Fund, and in addition to that they have to pay to--
	MR. SHIMKUS.  They are paying twice.
	MR. REYES.  They are paying twice.  They pay for our--
	MR. SHIMKUS.  With no assurance of any final solution as to 
the promise the Federal government made years ago.
	MR. REYES.  That is correct.
	MR. SHIMKUS.  And that is what those of us who support 
moving sooner rather than later has tried to get additional risk off 
because we do believe that nuclear power ought to have a role.  
Again, I would say because I am from a coal State too, a 
diversified portfolio, that we are competitive, and it addresses a lot 
of the concerns.  In the bill, not in the proposed changes, we have 
been talking about the 70,000 metric tons.  That was established by 
the--
	MR. SPROAT.  Nuclear Waste Policy Act.
	MR. SHIMKUS.  By legislators.
	MR. SPROAT.  That is correct.
	MR. SHIMKUS.  We said that amount.
	MR. SPROAT.  Yes.
	MR. SHIMKUS.  And I think part of the problem that sometimes 
we have here is--again that was guys like me, a MVA military guy, 
former high school teacher, no real--there wasn't any--we didn't do 
any scientific analysis to say 70,000 metric tons, did we?
	MR. SPROAT.  Not that is apparent to any of us, no.  When the 
environmental impact statement for Yucca Mountain was done, it 
was analyzed for 120,000 metric ton capacity; so we have already 
analyzed the environmental impact of storing up to that much in 
the mountain.  What we are asking for in the legislation is that as 
part of the licensing process, let us do analysis presented to the 
NRC and let the NRC license--
	MR. SHIMKUS.  You are proposing that we actually use science 
to maybe make the debate of what should be stored t there?
	MR. SPROAT.  Well, that and engineering too.
	MR. SHIMKUS.  And engineering too.  Good.  And I would 
obviously agree with you.  I think there is some outside analysis 
that says that there could be more than 70,000 metric tons.  
Obviously, there has to be a lot more research, but that would 
address this second debate which it is going to force your hand 
should we not do anything which then as Dr. Norwood said would 
be more money, more time.  And I think one of the reasons why 
we dipped in to the Federal policy makers have used the funds, and 
it depends on how you talk about budgeting and trust funds and 
where are the dollars really going because we haven't set a secure 
policy to even convince ourselves that we are going to build Yucca 
Mountain, hence, we can rob and use these other dollars or 
forestall the tough decisions on spending until we actually see 
some positive movement that we are going to have to spend these 
dollars.
	I would say it is partly the fault of Federal legislators for not 
being aggressive and being committed because there is a delay 
aspect here that a lot of people would like to see to stop progress.  
So my time has expired.  The Chair recognizes my colleague and 
friend from Massachusetts, Mr. Markey.
	MR. MARKEY.  I thank the gentleman very much.  Mr. Reyes, a 
2005 National Academy of Sciences report found that "Under 
some conditions a terrorist attack that partially or completely 
drained a spent fuel pool could lead to a propagating zirconium 
cladding fire and the release of large quantities of radioactive 
materials to the environment."  We know that Al Qaida wants to 
do that if they can get away with it, hijack a plane, a small plane, 
and dive bomb into one of these facilities without a containment 
dome around it.  The National Academy concluded that it would be 
feasible to reduce the risk of a spent fuel fire by rearranging the 
spent fuel in the pool so that hotter fuel assemblies weren't so 
densely packed together.
	My understanding is that doing such rearranging would not 
take much time or cost much for the licensees to do.  Has the NRC 
ordered its licensees to take this step or begun a rulemaking to 
require that it be done?
	MR. REYES.  All the fuel has been changed accordingly so 
instead of waiting for Federal processes the utilities understood the 
recommendation from the National Academy of Science and those 
pools today reflect that approach.  It is called a checkerboard 
approach where you allow for the heat dissipation to be 
maximized.
	MR. MARKEY.  And that is now the policy of every single 
nuclear power plant in the United States?
	MR. REYES.  That is correct.
	MR. MARKEY.  Does that include all of the nuclear power 
plants that are retired as well?
	MR. REYES.  They have a different issue there.  For example, if 
you think a facility that has been retired for over 10 years the 
cooling is at such a point that the academy did not address those 
because the heat dissipation is not relevant to the issue.
	MR. MARKEY.  Mr. Reyes, the National Academy also 
recommended other measures to better secure spent fuel pools 
from terrorist attacks.  Those included, one, limiting the frequency 
of off loads of full reactor cores into spent fuel pools, two, 
requiring longer shut downs of the reactor before any fuel is off 
loaded, three, providing enhanced security when such off loads are 
made, and, four, development of a redundant and diverse response 
system to mitigate loss of pool coolant events that would be 
capable of operation even if the pool or overlying building were 
severely damaged.  Has the NRC fully implemented each of those 
recommendations as well?
	MR. REYES.  Most of those recommendations have been 
implemented.  In fact, in some cases they have been enhanced.
	MR. MARKEY.  Which of these have you not implemented?
	MR. REYES.  The particular one about enhancing security 
during some of the transfers because the security is already there 
so I think when they wrote--the academy report is kind of dated.  
We have taken a lot of action since then, but if you take the 
essence of the recommendations, we have acted on all of them.
	MR. MARKEY.  Thank you.  Thank you very much.  Mr. Sproat, 
on August 16, 2006, the Department's Inspector General issued a 
report on the Office of the Civilian Radioactive Waste 
Management's corrective action program.  This report found that 
your office has not been effectively managing and resolving 
conditions adverse to quality at the Yucca Mountain project, 
specifically the DOE Inspector General found "over 100 potential 
conditions were not being managed in the corrective action 
program which should have been.  More than half of the significant 
planned corrective actions had not been implemented in a timely 
manner, and corrective actions were not always effective and that 
conditions continued to recur even after management reported that 
appropriate corrective actions had been taken."
	This DOE IG report is a blistering indictment of your office's 
management and oversight over the Yucca Mountain project, and it 
is only the latest of a series of critical reports revealing real 
problems at the Yucca Mountain project.  Just last January the 
NRC blasted Bechtel for measurements that they were making in 
corrosion.  We could go down the list.  In light of the ongoing 
problems with your existing program and the clear problems in the 
Department's management why should this committee enact the 
Administration's proposed bill to further weaken environmental 
and procedural protections aimed at protecting the environment 
and insuring a sound scientific and technical evaluation of the site 
and its ability to be licensed by the NRC?
	MR. SPROAT.  Congressman, first of all, I would say that I 
would disagree with your characterization of the proposed 
legislation as a weakening of the oversight.  What we are trying to 
do is very clear about NRC's maintaining their oversight and 
control of the licensing process for Yucca Mountain.
	MR. MARKEY.  You want to exempt Yucca from RCRA, 
preempt State environmental and public safety laws, deem that 
waste confidence exists where it does not, and allow for 
construction to begin before all licensing questions are addressed.  
Why should we grant you all of those additional authorities, 
exemptions, from a process that already apparently doesn't work 
and further weaken what little public safety and public 
participation already exist?
	MR. SPROAT.  Well, how I view the issue that you raise, 
Congressman, which is a very valid issue, around the effectiveness 
of the corrective action process and the quality processes within 
this project over its life, I acknowledge that those problems have 
existed in the past and still exist to some extent today.  And what I 
am here to tell you is that I am personally invested and involved in 
fixing them.  And the corrective action program, I have been on the 
job now for 10 weeks.  I have been personally involved with 
meetings on that to get it fixed and fixed right.
	MR. MARKEY.  And that is good, and I think what you should 
do is honestly, and I appreciate the difficulty of your job after only 
10 weeks, I think that we should have this hearing after you fixed 
all the problems.  Then we should come back and talk about what 
additional legislative authority we are going to give you.  But I 
think it would really be a mistake for this committee to know that 
there is an incredible boostering, scalding indictment of existing 
management of policies and then to give even further latitude to 
this agency.
	And so that would be my point to you, sir.  You didn't create 
the problems, but we have to see how good a job you do in 
cleaning up the mess.
	MR. SPROAT.  I understand.
	MR. MARKEY.  And you can't tell us right now that with 100 
percent confidence you are going to be able to do that.  So I think 
that we should wait to be honest with you.  It would be the prudent 
way to go.  And that we should deal with these issues in a way that 
reflects the seriousness of the problem that exists right now.  The 
DOE corrective action program is akin to the Holy Roman Empire.  
It wasn't holy, it wasn't Roman, and it wasn't an empire, and you 
can say the same thing about a DOE corrective action program.  
They just don't exist as they have been examined by the Inspector 
General, and I think that we should take that into account before 
we move forward.  And I thank you, Mr. Chairman, for your 
indulgence.
	MR. HALL.  The Chair recognizes Mr. Barton.
	CHAIRMAN BARTON.  I am certainly willing to yield to Mr. 
Otter, who has been here the entire time.
	MR. OTTER.  I just got back.
	CHAIRMAN BARTON.  Oh, you just got back too.  I don't mind 
going ahead of you then.
	MR. OTTER.  I just wanted to say that it wasn't until the 
Government of Rome got so big that it was no longer an empire.  I 
yield back.
	CHAIRMAN BARTON.  Mr. Hall, I just have one basic question.  
I have introduced at the Administration's request the Yucca 
Mountain bill, and I would like to ask Mr. Sproat how the Senate 
Energy and Water appropriations line on interim storage would 
impact their proposal for Yucca Mountain.
	MR. SPROAT.  At this stage of the game, Congressman, I don't 
see that proposal having a direct impact on this legislation.  I was 
asked a question earlier as to whether or not if that legislation was 
passed as is, appropriations language was passed as is, do I have 
the resources available to me right now to execute that as well as 
Yucca Mountain.  My answer is no.  That is probably the best 
answer I can give you.
	CHAIRMAN BARTON.  Then it has to impact it.  I don't see the 
House, Mr. Hobson on the appropriations process or myself as the 
authorizing Chairman saying we will take the money for Yucca 
and spend it on interim storage.  I don't see that happening.  We 
want to get Yucca done and then if we need to do some interim 
storage in the interim, fine.
	MR. SPROAT.  We are fully committed to making Yucca 
Mountain happen.  I am fully committed to making it happen and 
the less distractions I have the better.
	CHAIRMAN BARTON.  And I assume you wouldn't say it if it is 
not a true statement, then we need to convince our friends in the 
Senate to work with us on getting a Yucca bill done as soon as 
possible.
	MR. SPROAT.  Yes, sir.
	CHAIRMAN BARTON.  Because there is a limited amount of 
money, and the sooner we get the permanent repository the better 
off we all are with the legislation that funds it and operates it.
	MR. SPROAT.  We agree.
	CHAIRMAN BARTON.  Mr. Chairman, that is all I have.
	MR. HALL.  Thank you, sir.  Mr. Otter.
	MR. OTTER.  Thank you, Mr. Chairman.  I want to reiterate in 
my earlier statement I am fully in support of going forward with 
Yucca Mountain with all due haste.  There were a couple of things 
you said in your opening statement though that I find concerning.  
You indicated several things that had to happen and amongst those 
were the superseding the State's perhaps laws on environment and 
water and clean air, safety, and a few other things.  Maybe my 
friend, Mr. Markey, threw in a few others that I haven't heard.  
And you said you thought you had the authority for that.
	MR. SPROAT.  No.
	MR. OTTER.  I am just trying to clarify.
	MR. SPROAT.  Obviously, there are different issues with each of 
those aspects.  For example, on water, the issue there is the State, 
the legislature, the State of Nevada has declared the Yucca 
Mountain project not in the public interest, and therefore the State 
water engineer by law in Nevada cannot give us, the Department of 
Energy, any water withdrawal permits that we need to construct or 
operate Yucca Mountain.
	MR. OTTER.  Yes, and I am glad you brought water up because 
that was the one that concerned me more than anything else, and I 
am fully aware that sometimes States will engage in law making to 
simply stop something that they don't want to happen in their 
State.
	MR. SPROAT.  And that has happened in this case.
	MR. OTTER.  And I wish perhaps in Idaho's case we had done 
that in a few cases like with wolves.  But anyway that is another 
subject.  What does concern me though is have you tried to buy 
existing water rights from other water users that would have prior 
rights?
	MR. SPROAT.  We have been forced to do some temporary 
water buying from California.  We have trucked water in but, as of 
right now, we have not attempted and we don't have access to 
other water rights in that area.
	MR. OTTER.  And you do know how much water you would 
need and for how long you would need it?
	MR. SPROAT.  Yes, we do.  Yes, we do.  The figures I have 
been told are that during the construction of Yucca Mountain we 
need the equivalent of 4 days of usage of water by Las Vegas.  
That is over the 8 to 10 year construction period.  Now that equates 
to a certain number of acre feet, and I don't have that figure with 
me, but that just gives you some relative sense of the usage that we 
are anticipating needing during the construction period which is 
the peak period of water usage.  After construction, water usage 
would drop way down.
	MR. OTTER.  Well, I am sure that you are familiar with that 
water in the west is extremely valuable.
	MR. SPROAT.  Yes, I am.
	MR. OTTER.  So then I go back when there are existing water 
rights and there would be existing water rights that either farmers 
or ranchers themselves would have that would seem to me to be 
fertile ground for establishing or at least buying temporarily a 
water right, and especially if it is only 4 days of usage during the 
construction period that Las Vegas would use, but Las Vegas uses 
a lot of water.  I fully understand that.  But on the total scheme of 
things holding up an entire project for that, especially one as 
important as this and one as needful as this, I just get a little 
concerned about giving any Federal agency the authority to take 
over water rights within a State.
	MR. SPROAT.  I totally agree.  Just for clarification purposes, 
we are not asking to take over water rights.  What we are asking is 
the Congress to say Yucca Mountain is in the public interest of the 
country, thereby overriding the State legislature's adverse 
determination.  The legislation will allow us to go to the State 
water engineer, present our permitting requirements, explain what 
we need, and allow the State water engineer to make a 
determination within the State regulatory framework to allocate 
water to us.  Right now we can't even get in the door because the 
State legislature said it is not in the public interest and the State 
water engineer can't even review the application.
	MR. OTTER.  Okay.  Well, that is much different than the 
impression that I got from your opening statement, and I am glad 
we got that clarification.  I have no more questions, Mr. Chairman.
	MR. HALL.  I think that covers the questions, and we do thank 
you two gentlemen for your very valuable information and your 
time.  Thank you for your preparation and for attending.
	MR. SPROAT.  Thank you.
	MR. HALL.  And we assure you that we will see you again.  
You are excuse.  We will have the second panel.   Our second 
panel this afternoon on the nuclear waste disposal question is the 
Honorable Sam Wise, Chairman of the Georgia Public Service 
Commission, from Georgia representing the National Association 
of Regulatory Utility Commissioners.  Also, Ms. Michele Boyd, 
Legislative Director, Public Citizen, Washington, D.C., Mr. 
Anthony F. Earley, Jr., Chairman and Chief Executive Officer at 
the DTE Energy Company, on behalf of the Nuclear Energy 
Institute.  The Honorable Stan Wise, begin.

STATEMENTS OF HONORABLE STAN WISE, CHAIRMAN, GEORGIA PUBLIC SERVICE 
COMMISSION, ON BEHALF OF NATIONAL ASSOCIATION OF REGULATORY UTILITY 
COMMISSIONERS; ANTHONY F. EARLEY, JR., CHAIRMAN AND CHIEF EXECUTIVE OFFICER, 
DTE ENERGY COMPANY, ON BEHALF OF NUCLEAR ENERGY INSTITUTE; AND MICHELE BOYD, 
LEGISLATIVE DIRECTOR, PUBLIC CITIZEN

        MR. WISE.  Thank you, Mr. Chairman, Ranking Member, and, 
Dr. Norwood, thank you for your very kind comments in your 
opening remarks.  I am Stan Wise.  I am Chairman of the Georgia 
Public Service Commission, and I am here today on behalf of the 
National Association of Regulatory Utility Commissioners, most 
often referred to as NARUC.  In addition, my testimony reflects 
the views of the Georgia Public Service Commission.  I very much 
appreciate the opportunity to appear with you this afternoon.
	The issues that you are addressing in this oversight hearing are 
very important to NARUC's membership and to my State, and I 
am grateful to have this opportunity to present our point of view 
concerning the disposition of spent nuclear fuel at nuclear power 
plan sites that is intended for ultimate disposal at the Yucca 
Mountain geologic repository.  I would like to summarize my 
testimony, and have the full statement entered into the record.  We 
continue to be concerned with delays in progress on the repository 
program.  It has been 4 years since Congress approved developing 
the Yucca Mountain site and the next major milestone was for 
Department of Energy to submit a license application to NRC to 
authorize construction.
	And while we had hoped that the license application might 
occur in 2005 the latest schedule now shows that it will occur no 
later than June of 2008.  That was not welcome news for the 
directors of the repository program and we must respect his 
assurance that additional time is needed to provide a defensible and 
dockable license application.  NARUC's primary concern is the 
need to reform the matter in which the Nuclear Waste Fund is 
managed.  We believe that the repository schedule cannot be met 
without greater financial resources, and although the Nuclear 
Waste Fund was well designed and nuclear waste policy as the 
mechanism for the commercial share of repository disposal cost to 
be rate payer financed that is not the way that the Fund is currently 
being used.
	In the present fiscal year, $750 million in fees were expected to 
be paid by utilities from ratepayers into the Fund and yet Congress 
has appropriated only $99 million for the same period.  That means 
that 87 percent of the fees that are collected are not being used for 
their intended purpose.  We are told that the excess over 
appropriation is added to the balance on the Nuclear Waste Fund, 
and that it has grown to over $18 billion.  We are concerned that 
the money is either gone or at best represents a collection of IOUs 
that future Congresses may or may not appropriate when it is 
needed to later fund the repository.
	Congress has considered various legislative remedies that 
might make a more direct connection between annual revenue and 
appropriations.  If not, the assurance of the purported balance will 
be available in the future, but those efforts have fallen short.  The 
Administration now proposes to reform the process with the 
proposed Nuclear Fuel Management and Disposal Act and whether 
by this proposal or by some other means it achieves the same 
objectives we urge the Congress to enact that bill this year and 
bring greater financial stability to the repository program.
	We were disappointed to learn that last week the bill will not 
be taken up by the Senate this year.  There are two other aspects of 
spent fuel management that are before Congress, and I would like 
to comment on them.  Totally contrary to the intent of the Nuclear 
Waste Policy Act and existing contracts with utilities to remove 
spent fuel from reactor sites is Senate 2099.  That bill would 
authorize DOE to take title of spent fuel and dry cask storage and 
maintain it at reactor sites for unspecified period at a cost that is 
likely to be in the billions of dollars per year.  Keeping the waste 
on site is not what the utilities and/or the ratepayers have paid over 
$25 billion for.  That bill should be rejected.
	Finally, there is a consideration of having the Government 
provide some form of interim storage away from reactor sites.  
NARUC has urged Congress and the DOE to consider interim 
storage for as long ago as it was evident that DOE was not going to 
meet the 1998 mandate of the waste acceptance set in statute and in 
contracts.  We believe that it would have made more sense to 
provide the added storage capacity at one or a small number of 
storage sites ideally designed and built for that purpose rather than 
to have each utility retrofit additional storage at reactor sites.  
Since such storage was only made necessary by the continued 
failure of the Government to meet the disposal schedule we never 
envisioned that the Nuclear Waste Fund would be used for such 
expenses.
	And when the House proposed last year an interim storage plan 
for DOE installations on a short schedule, we thought it would be 
worthwhile although we were concerned that the Nuclear Waste 
Fund would be used for initial planning.  This year the House 
appropriations bill would provide $30 million, not from the 
Nuclear Waste Fund, but sought to make storage a part of a 
broader, integrated spent fuel recycling initiative pursued by DOE.  
And when the Senate Energy and Water Appropriations bills 
included the proposal to have DOE search for a site in each State 
with a commercial nuclear reactor for possible development of an 
interim storage facility for 25 years for regional facilities it took 
many States by surprise.  I know it did in Georgia.
	And as indicated in a letter to Chairman Barton in July, 
NARUC continues to believe that it might be better to move some 
spent fuel from the present storage sites to a central location 
selected and built for safe and secure interim storage, and we 
question whether that is needed in all 31 States that have reactors.  
As far as sites go, the Senate bill rules out the two locations that 
seem to make the most sense, Yucca Mountain and the already 
licensed private fuel storage facility in Utah.
	We need to know more about the cost and benefits before we 
consider whether it is appropriate to use the Nuclear Waste Fund to 
pay for interim storage, and until H.R. 5360, or something like it 
reforms the Nuclear Waste Fund appropriations process, a dollar 
spent for interim storage is a dollar not available for developing the 
repository.  There was also a decision in 2002 in the 11th Circuit of 
the United States Court of Appeals that indicates that the Fund 
may only be used for disposal of interim storage, and it is not an 
act of disposal.  So let me summarize what we are in favor of in the 
Nuclear Waste Program.
	We urge reform of the Fund so that collected fees are available 
for their intended purpose as proposed in 5360.  DOE needs to 
press on with the licensing of Yucca Mountain.  Central interim 
storage away from reactor sites that does not interfere with 
developing a repository and meets as cost benefit test.  Research 
and further study of all aspects of advanced reprocessing as 
proposed in the GNEP initiative.  Infusing a sense of urgency in 
spent fuel repository development as the other provisions of H.R. 
5360 support.
	And just so there is no mistake, let me summarize what we are 
opposed to.  The continued diversion of the Nuclear Waste Fund 
fee payments.  Having DOE take title of spent fuel to be retained at 
reactor storage sites.  Use of the Nuclear Waste Fund for interim 
storage, and certainly not as long as appropriations for interim 
storage means fewer appropriations for the repository.  Putting as 
many as 31 States through a concurrent site search for interim 
storage before the cost and benefits of the proposed consolidation 
and preparation facilities have been determined.  Thank you for the 
opportunity to testify before you today, and I look forward to your 
questions.
	[The prepared statement of Hon. Stan Wise follows:]

PREPARED STATEMENT OF THE HON. STAN WISE, CHAIRMAN, 
GEORGIA PUBLIC SERVICE COMMISSION, ON BEHALF OF NATIONAL 
ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS

NARUC supports:
        1. Reform of the Nuclear Waste Fund so that collected 
fees are available for their intended purpose, as 
proposed in H.R. 5360.
        2. DOE needs to press on with licensing the Yucca 
Mountain repository.
        3. Central interim storage away from reactor sites that 
does not interfere with developing the repository.
        4. Research of advanced reprocessing and further study of 
all aspects of the GNEP initiative.
        5. Infusing a sense of urgency in spent fuel repository 
development.
NARUC strongly opposes:
        1. Continued diversion of the Nuclear Waste Fund fee 
payments.
        2. Having DOE take title of spent fuel at reactor storage 
sites and to retain it there.
        3. Use of the Nuclear Waste Fund for interim storage, 
certainly not so long as appropriations for interim 
storage would come at the expense of adequate  
appropriations for the repository
        4. Putting as many as 31 States through a concurrent site 
search for interim storage before the costs and benefits 
of the proposed "consolidation and preparation" 
facilities have been determined.


        Good Afternoon Mr. Chairman, Ranking Member Boucher, 
and Members of the Subcommittee.
        My name is Stan Wise.  I am the Chairman of the Georgia 
Public Service Commission.  I also am the immediate past 
president of the National Association of Regulatory Utility 
Commissioners (NARUC).  I am testifying today on behalf of 
NARUC.  I greatly appreciate the opportunity to appear before you 
this morning.  The issues that you are addressing in this hearing are 
very important to NARUC's membership and my State, and I am 
grateful to have this opportunity to present our point of view 
concerning the disposition of spent nuclear fuel currently stored at 
nuclear power plant sites that is intended for ultimate disposal at 
the Yucca Mountain geologic repository.
	I would like to summarize my testimony and have my full 
statement entered into the record as if fully read.
	NARUC is a quasi-governmental, non-profit organization 
founded in 1889.  Its membership includes the State public utility 
commissions serving all States and territories.  NARUC's mission 
is to serve the public interest by improving the quality and 
effectiveness of public utility regulation.  NARUC's members 
regulate the retail rates and services of electric, gas, water, and 
telephone utilities.  We are obligated under the laws of our 
respective States to ensure the establishment and maintenance of 
such utility services as may be required by the public convenience 
and necessity and to ensure that such services are provided under 
rates and subject to terms and conditions of service that are just, 
reasonable, and non-discriminatory.
	NARUC's goals in the nuclear waste area are well known and 
have been stated before this and other Congressional committees 
on a number of prior occasions.   NARUC believes that the federal 
government needs to meet its obligation under the Nuclear Waste 
Policy Act of 1982, as amended, to accept spent nuclear fuel from 
utilities and other nuclear generators in a timely manner for safe 
disposal.  NARUC further believes that the nation's ratepayers 
have upheld their end of the bargain struck in the Nuclear Waste 
Policy Act by providing, either directly or through income 
generated on prior payments, over $25 billion for use in 
constructing a nuclear waste repository.  Finally, NARUC believes 
that the Nuclear Waste Fund should only be employed for its 
intended purpose and that the monies in the Nuclear Waste Fund 
should be utilized, along with appropriations from the Department 
of Defense budget, for the sole purpose of supporting the opening 
of the Yucca Mountain facility in a timely fashion.  The basic 
principles underlying NARUC's approach to the nuclear waste 
issue provide a solid foundation for future policy decisions 
concerning the nuclear waste program.
	Two years ago, the repository program seemed to be very close 
to having the repository license application completed for 
submittal to the Nuclear Regulatory Commission during 2004, but 
was further delayed due to the need for the Environmental 
Protection Agency to revise the radiation standard to be used in the 
license review.  In addition, there were some difficulties between 
DOE and the NRC in meeting the documentation certification 
requirements of the Licensing Support Network (LSN) that many 
of us outside the government did not fully understand. And there 
was the revelation that there may have been some records 
falsification by some employees of the United States Geologic 
Survey who had worked on the project. Since then, EPA has issued 
their proposed revised radiation standard and has concluded the 
public comment period.  We don't know the status of the LSN 
documentation but the USGS and DOE records investigations 
seemed to be concluded, with the program scientific work 
reaffirmed.
	NARUC's primary concern with the civilian radioactive waste 
management program is for Congress to reform the way the 
Nuclear Waste Fund is managed and the way in which 
appropriations are made from the Fund. Reform of the Fund 
appropriations process is necessary to provide a stable financial 
footing so that the government can fulfill its statutory and 
contractual obligation to provide safe disposal of spent nuclear fuel 
and other high-level radioactive waste as was the intent of the 
Nuclear Waste Policy Act. Although the House Energy and 
Commerce Committee voted favorably on H.R. 3981 in the 
previous Congress, the bill never made it to a floor vote and no 
action was taken in the Senate.  We did not consider that a perfect 
bill (it was only for a five year period) but it would have helped 
ensure that more of the fee revenue collected by the Fund would 
actually be appropriated for its intended use. While the FY 2006 
budget referred to the Administration's remaining interested in 
pursuing a similar proposal for reclassification of NWF fees as 
offsetting collections and discussing it with Congress, no 
legislation was developed that year.
	NARUC's and State utility regulator's prime concern for the 
repository program remains to reform the Nuclear Waste Fund 
appropriations process.  It is difficult for us to see how the 
repository program can ever shift into an implementation phase 
when funding requirements would need to increase by orders of 
magnitude compared with the pre-licensing phase. Simply put, the 
repository cannot be built without a more stable financing 
arrangement. Without the repository, spent nuclear fuel continues 
to accumulate and be stored in places that were never designed or 
permitted for indefinite storage. Spent fuel would be stored at 72 
locations along rivers and lakes in 34 States instead of in a more 
secure, well-designed repository. Although we see many favorable 
signs for investment in new nuclear power plants, including 
provisions of the Energy Policy Act of 2005, we also continue to 
hear that lack of a clear path towards disposal of spent nuclear fuel 
may hold back that investment.
	We also need to reform the Nuclear Waste Fund because we 
owe it to the ratepayers who pay the fees in their electric bill. For 
the past five years, three quarters of the fees collected for nuclear 
waste disposal have gone to other unrelated federal purposes. In 
the current fiscal year, total fee payments into the Nuclear Waste 
Fund are expected to be $750 million. That compares with $99 
million appropriated for the repository program.  All that we as 
utility regulators can show ratepayers is a financial report from the 
Department of Energy that there is an account in the Treasury 
called the Nuclear Waste Fund that supposedly has $18 billion in it 
for the repository program. It is a cruel fact of life that for all 
practical purposes those funds are inaccessible or already spent. 
All the ratepayers want is for the government to remove the spent 
fuel for disposal as they were promised over 24 years ago would 
already have begun by now.
	We are grateful for the leadership of the House Energy and 
Water Development Appropriations Subcommittee and its 
unwillingness to simply do nothing last year while the repository 
license application was delayed and no reform to the Nuclear 
Waste Fund was in the works. In the markup of the FY 2006 
budget, Energy and Water Appropriations Subcommittee 
Chairman David Hobson sought to add $10 million to initiate an 
interim storage program using DOE sites that are presumed to 
already have the security and other support that could 
accommodate spent fuel from commercial reactors.  DOE would 
take title to and ship utility waste to the unspecified locations that 
already store similar government radioactive waste.  We had many 
questions about that approach, but it could have been a step in the 
right direction, especially for spent fuel now stored at 14 shutdown 
reactor sites. We doubt that any significant quantity could have 
been moved in FY 2006, as the Subcommittee report indicated, or 
that much could be done for the $20 million the bill would have 
appropriated. Of course, when the Senate did not include similar 
provisions or equal funding, the proposal did not survive in 
conference.
        For FY 2007, the House again took up an interim storage 
proposal in the appropriations bill, this time adding $30 million, 
not from the Nuclear Waste Fund, for development of some 
undetermined amount of interim storage of spent fuel at 
"integrated spent fuel recycling facilities" that could be serve as a 
vanguard for demonstration of spent fuel reprocessing under the 
Advanced Fuel Cycle Initiative being pursued within DOE as part 
of the broader Global Nuclear Energy Partnership (GNEP). There 
was a stipulation in the bill that authorization be obtained for 
interim storage, since DOE has maintained that it lacked authority 
to establish interim storage.
	Then the Senate Appropriations Committee released its 
proposal, as Section 313 of the FY 2007 Energy and Water 
Appropriations Bill (Senate Report 109-274), calling for DOE to 
propose "consolidation and preparation facilities" for interim 
storage of spent fuel in each State with a commercial nuclear 
reactor or, alternatively, regional CAP facilities.  We understood 
Chairman Domenici wanted to stimulate a dialogue on interim 
storage and to get States involved. A NARUC witness testified at a 
hearing of the Senate Energy and Natural Resources Committee on 
August 3rd.  States are involved in nuclear waste storage at 
reactors. In my State, we have utilities expressing great interest in 
building new nuclear plants to provide emissions-free reliable 
baseload power for forecasted energy demand. Yet, the utilities 
indicate they may have difficulty raising capital without greater 
certainty on nuclear waste disposal. State utility commissioners are 
also involved in another way: those utilities making payments into 
the Nuclear Waste Fund pass those costs on to their ratepayers. 
Since 1983, close to $900 million has been paid into the Fund from 
Georgia.
	We have many questions about the CAP proposal which were 
conveyed to Chairman Barton in a July 11th letter.  Unless DOE is 
better staffed than I suspect they are, it would seem unlikely that 
DOE could undertake a delicate site search concurrently in 31 
States within the 270 day timeline indicated in the bill. There are 
environmental impact considerations and the potential for litigation 
that could slow the process. Are we even sure that every State has 
a storage deficiency? It is my understanding that once it was 
apparent that DOE would not meet the 1998 waste acceptance 
mandate, many utilities resigned themselves to the necessity to 
develop dry cask storage on-site to supplement pool storage. There 
is litigation over recoupment of those expenses, but for the active 
reactors, there has been a steady increase (over 38 so far) of 
separately licensed dry cask facilities and more are planned.
        Governors will want to know how the site search process 
within their States will proceed. Some States have restrictions on 
developing new nuclear facilities within the State and, although the 
factual record on nuclear waste transportation safety is superb, 
there is nonetheless public concern over transportation and unease 
over siting that is not likely assuaged by assurances in the bill that 
the CAP storage would only be for 25 years.
        NARUC has supported interim storage away from reactor 
storage sites for some time, whether by the government or at 
private facilities provided by the utilities themselves such as 
proposed at Skull Valley, Utah. In our view, the Nuclear Waste 
Policy Act does not permit government interim storage to be 
financed by the Nuclear Waste Fund (Section 302.d.). Some of the 
expenses relating to waste shipping casks and transportation might 
be permitted since they could be interpreted as needed for the 
permanent repository. However, there is a broader question of 
equity: why should the Nuclear Waste Fund, which is supposed to 
be used to develop a permanent repository, be used for expenses 
that could have been avoided had DOE met its statutory and 
contractual obligations to begin spent fuel acceptance in 1998?  
This is at the heart of the ongoing litigation by numerous utilities 
against DOE and it is not anticipated that the Nuclear Waste Fund 
will be used to make damage payments that may be awarded in 
those cases.
        Also relevant to the use of the Nuclear Waste Fund is the 2002 
decision by the Eleventh Circuit of the United States Court of 
Appeals (Alabama Power, Carolina Light and Power, et al. v. 
Department of Energy) ruling that the Nuclear Waste Fund may 
only be used for disposal and that interim storage is not an act of 
disposal.
	Last year, the House Appropriations Report (109-086) called 
for DOE to initiate a plan to begin spent fuel reprocessing (or re-
cycling) in FY 2007. Members of the Committee are familiar with 
the history of reprocessing in this country and the experiences in 
other countries.  We know the 2001 National Energy Plan 
recommended that the subject be re-visited, and that DOE has an 
Advanced Fuel Cycle Initiative as part of a research effort to look 
at what to many is an intuitively appealing goal of "recycling" 
used fuel. Yet technology, economics, environmental and 
proliferation concerns remain. Testimony by industry and 
academic experts before the House Science Committee last July 
also suggested there are many economic and other questions to be 
addressed. We will leave that for others to sort through, but I want 
make a single point here: There is no known reprocessing method 
in use today or likely to be developed in the future that does not 
result in some quantity of high-level radioactive waste that will 
require disposal in a repository. Therefore, whether we reprocess 
in this country or not, we will still need a repository like Yucca 
Mountain. Put another way, reprocessing is not an alternative to 
building a repository, as much as some might wish it to be. There 
may be less waste if we reprocess and it may be of different 
toxicity, but it still must be isolated from the human environment. 
All of the countries that reprocess know this and are planning long-
term disposal.
        Moreover, the repository design that is being proposed for 
Yucca Mountain does not preclude a future decision to retrieve any 
or all spent fuel emplaced in it for reprocessing (or other reasons) 
until the decision is made to seal the repository, which, according 
to DOE, could be anywhere from 50 to 300 years in the future. If 
spent nuclear fuel is indeed an energy asset, Yucca Mountain will 
be an ideal place to store it until needed.
        With the FY 2007 Department of Energy Budget, Secretary of 
Energy Samuel Bodman announced the initiative called the Global 
Nuclear Energy Partnership (GNEP.) It has many dimensions and 
purposes, but one that we are interested in is the suggestion that if 
advanced forms of reprocessing and recycling of spent nuclear fuel 
were to be developed under the GNEP vision, that the amount of 
nuclear waste requiring disposal might be greatly reduced and its 
radiation characteristics would be hazardous over a much shorter 
period of time.  We are interested in learning more about the 
proposal and its feasibility in terms of achievable technology, 
economics, environment and non-proliferation considerations. It is 
too new for us to take a position on the matter until we learn more, 
but our existing policy remains current. In 2000, we revised our 
Nuclear Waste Guiding Principles to include: "Reprocessing of 
spent fuel may be worthy of research, but, even if feasible, does 
not eliminate the need for a permanent repository."
Accordingly, we support the research proposed for GNEP and the 
Advanced Fuel Cycle Initiative in the FY 2007 DOE budget 
request. It appears to be a worthwhile investment that could pay 
dividends down the road while investigating the feasibility of 
proliferation-resistant reprocessing.
        We have been troubled by the legislative proposal to have the 
Department of Energy take title to spent nuclear fuel at commercial 
reactor sites and manage it there for some unspecified time, as in S. 
2099. We see press reports that the scheme would be financed by 
the Nuclear Waste Fund and we also interpret the real objective is 
to somehow-with no clear terminating point-keep the spent fuel 
where it is instead of building the repository. Obviously, to 
abandon the repository would require amendment or possibly 
repeal of the Nuclear Waste Policy Act. Proponents of this 
proposal seem to disregard the finding in the Nuclear Waste Policy 
Act that "Federal efforts during the past 30 years to devise a 
permanent solution to the problems of civilian radioactive waste 
disposal have not been adequate." Instead, they would have us 
revert to that Square One posture. 
	We have been careful to avoid any suggestion that continued 
spent fuel storage at reactor sites is not as safe and secure as the 
Nuclear Regulatory Commission maintains that it is, but in our 
view, the proposal to have DOE take title and manage spent fuel at 
present reactor storage sites is not consistent with the "compelling 
national interests" that former Secretary of Energy Spencer 
Abraham referred to when he recommended Yucca Mountain as a 
suitable repository site to the President and Congress in 2002. He 
said, and we agree, that the repository is important to homeland 
security.
	We strongly oppose the suggestion that the government take 
title to spent fuel which would remain at 72 reactor sites instead of 
going to a repository. That is not what was promised in the Nuclear 
Waste Policy Act and reaffirmed by Congress in a joint resolution 
in 2002, and it is most certainly not what ratepayers have paid $25 
billion in fees and interest over the past 22 years to achieve.
	Before I conclude, there is one other item to discuss. We urge 
strong leadership on the part of the Department of Energy and its 
support contractors to keep this much-delayed repository program 
moving forward. We have expressed our frustrations in the past 
with the chronic underfunding and series of delays that have 
troubled the program. DOE needs to work its way through 
whatever else needs to be done to put the repository licensing back 
on course.  We commend the positive spirit and determination of 
Mr. Edward Sproat, the new director of the Office of Civilian 
Radioactive Waste Management, when he announced the revised 
schedule in July and we wish him and the repository team well in 
meeting that schedule. We appreciate EPA for meeting the 
challenge of responding to the court remand with its proposed 
revised radiation standard. Although we disagreed with extending 
the regulatory period to one million years, EPA did meet the 
mandate of the court and it is time to issue the final rule. We have 
been aware that during the license application delay, DOE has 
been conducting a re-examination of repository plans. We saw 
some of the results of what is termed "program re-direction" in a 
press release last October. A change in approach was described as 
being "simpler, safer and more cost-effective," mostly as a result 
of a shift to standardized spent fuel canisters that will allow 
significant changes in fuel handling at the receipt facilities at 
Yucca Mountain. We certainly applaud cost savings, improved 
safety and the prospect of reducing the licensing complexity, but 
we have two concerns that we want to pursue:
        1. Will these changes further delay the license application and 
how will that affect eventual repository operational dates? 
The revised schedule showing initial waste disposal in 2017 
is predicated on a number of variables including adequate 
funding.
        2. How will DOE and the utilities be able to ensure that all 
spent fuel presently stored at reactor sites (up to the current 
planned amount of 63,000 metric tons) will be able to be 
transferred into the standardized canisters? Spent fuel is 
increasingly being stored in sealed canisters in dry casks 
that will either have to be accepted as is or have the 
contents transferred to the standard canisters.

        Finally, NARUC has not taken a position on the other elements 
of the proposed Nuclear Fuel Management and Disposal Act (H.R. 
5360), aside from our support for the Nuclear Waste Fund 
reclassification proposal. In general, we find the other provisions 
to be helpful for the overall goal of licensing, building and 
operating the repository. We agree that the 70,000 metric ton 
statutory limit on the repository capacity is arbitrary and the 
proposal to have the capacity be among the elements of the license 
review by the Nuclear Regulatory Commission makes sense.  We 
have always urged DOE to plan and eventually conduct the spent 
fuel transportation in cooperation with other federal, State, tribal 
and local governments and, to the best of our knowledge the 
Department is planning to do that as required by the NWPA and as 
has been done successfully in previous nuclear waste shipments. 
We were disappointed to hear that Senator Domenici indicated last 
week that the counterpart Yucca Mountain bill (S. 2589) will not 
be taken up in the Senate this year.
        Let me summarize what we support:
        1. Reform of the Nuclear Waste Fund so that collected fees 
are available for their intended purpose, as proposed in 
H.R. 5360.
        2. DOE needs to press on with licensing the Yucca Mountain 
repository.
        3. Central interim storage away from reactor sites that does 
not interfere with developing the repository.
        4. Research of advanced reprocessing and further study of all 
aspects of the GNEP initiative.
        5. Infusing a sense of urgency in spent fuel repository 
development.

And, let me summarize what we strongly oppose:
        1. Continued diversion of the Nuclear Waste Fund fee 
payments.
        2. Having DOE take title of spent fuel at reactor storage sites 
and to retain it there.
        3. Use of the Nuclear Waste Fund for interim storage, 
certainly not so long as appropriations for interim storage 
would come at the expense of adequate  appropriations for 
the repository
        4. Putting as many as 31 States through a concurrent site 
search for interim storage before the costs and benefits of 
the proposed "consolidation and preparation" facilities have 
been determined.

        Thank you for the opportunity to testify before you today. I 
look forward to your questions.

	MR. HALL.  The Chair recognizes Mr. Earley, Chairman and 
Chief Executive Officer of the DTE Energy Company for 5 
minutes.  Try to summarize and then we will question.  Thank you.
MR. EARLEY.  Mr. Chairman and members of the committee, 
thank you.  My name is Tony Earley, and I am Chairman and CEO 
of the DTE Energy Company headquartered in Detroit.  I am here 
today not only in my capacity as the owner of a nuclear power 
plant, but also as Chairman of the Nuclear Energy Institute, the 
trade association for the U.S. nuclear industry.  I want to thank you 
for the opportunity to express our strong support for H.R. 5360, 
and I want to say that I agree with the priorities identified by Mr. 
Sproat in his remarks.
	This legislation would be another step forward in the country's 
quest to manage and dispose of used nuclear fuel and high level 
waste.  You all understand how vital nuclear power is to the energy 
policy of our country.  You know that 20 percent of our electricity 
is produced from nuclear power plants.  It is a safe, 
environmentally friendly, and economic source of power and it is 
critical that we expand the use of this technology.  The United 
States has shown remarkable leadership in this field in the last half 
century since the passage of the Atomic Energy Act of 1954, but 
we are in danger of losing that leadership in nuclear technology.  
China, India, and other Pacific Rim countries race to build more 
nuclear plants.
	As indicated earlier, it has been over a decade since the last 
U.S. nuclear plant came on line, but fortunately momentum is 
changing.  Thanks to the visionary leaders in our industry and your 
work with the Energy Policy Act last year, NEI member 
companies have spent over $1.5 billion in planning the next 
generation of nuclear reactors over the last several years.  But that 
momentum will be lost unless we make progress on the nuclear 
waste front at a faster pace than we have seen in the last two and a 
half decades since the passage of the Waste Policy Act.  That is 
why passage of H.R. 5360 is so important.  I can tell you from 
conversations with my fellow CEOs, unless progress is made on 
nuclear waste issues, spending on plants will slow and could 
eventually grind to a halt.
	On the other hand, if the Department of Energy makes visible 
and measurable progress implementing a national used fuel 
management strategy companies will be willing to move ahead.  I 
can't emphasize enough that the nuclear industry believes that the 
Yucca Mountain repository is an essential component of any such 
strategy.  Let me just mention three important provisions that we 
support.  First, waste confidence.  As responsible business leaders, 
CEOs of nuclear companies must have confidence that nuclear 
waste issues will be handled appropriately.  It is not only socially 
responsible but it is legally required by the NRC.
	Waste confidence, however, is a national policy determination, 
not an issue that ought to be litigated in each plant licensing 
proceeding.  H.R. 5360 reiterates our country's commitment to do 
the right thing with respect to nuclear waste.  Second, we need to 
reclassify the Nuclear Waste Fund.  H.R. 5360 deals with the 
chronic funding problem that has plagued Yucca Mountain for 
years.  Ironically, it is not a lack of cash as has been mentioned 
earlier.  Customers of the nuclear utilities have paid $27 billion 
into the waste fund, only 9 billion has been spent.
	H.R. 5360 has provisions to insure that funding for nuclear 
waste solution will not be held hostage to budgetary maneuvering.  
Finally, we need to clarify the licensing process.  The bill includes 
important provisions that will give more certainty to licensing 
process for a nuclear waste repository.  I will tell you I have first-
hand experience on how the NRC licensing process can be used to 
thwart national energy policy.  As a participant in the decades 
long, multi-billion dollar struggle to license the Shoreham nuclear 
plant in New York, I know that streamlined licensing processes are 
absolutely crucial.
	These and other provisions are welcomed by the industry, but 
we also urge the committee to consider several other steps that 
would add to the value of H.R. 5360.  I have discussed these in my 
written testimony, and I ask that they be included in the record, but 
I will highlight just a few.  As Chairman of NEI and member of its 
executive committee for over 5 years, I can tell you our top priority 
is getting Yucca licensed and built but from a symbolic, legal, and 
policy standpoint having DOE take title and start to move fuel 
from reactor sites would be a huge step forward.
	It would reaffirm the Government's commitment to meet the 
obligation of the Nuclear Waste Policy Act, halt the continued 
growth and monetary damages, and be consistent with both long-
term storage plans at Yucca and potential developments in 
reprocessing.  I have heard the committee's well-founded 
concerns, and I want to make it clear as my testimony indicates we 
do not support the proposal in H.R. 4538 for multiple sites, but we 
do know that Americans love common sense solutions, and a 
carefully crafted, tightly focused interim storage plan could 
address the very real concerns expressed by the committee 
members and yet continue to make progress on the nuclear waste 
front.
	We believe the program should have a very limited number of 
interim storage sites.  We agree with Mr. Norwood's comments.  
One of them ought to be at Yucca.  We also want to look at other 
sites that would be consistent with future proposals for 
reprocessing technology, and if we included incentives for 
voluntary participation, we believe that there are a small number of 
sites that would be willing to participate.  We need to recognize 
that while the Nuclear Waste Fund could be used to pay for the 
small number of interim storage sites it should not be used to 
finance the developing of reprocessing or other technologies.
	And finally we do need to provide the NRC with the necessary 
resources and appropriate management focus to get the job done.  
But I want to emphasize that this should not be done without losing 
focus on the ultimate goal, and that is the functioning repository at 
Yucca Mountain.  Another provision we ask you to consider is 
nuclear waste disposal contract issues.  Utilities are required to 
enter into a contract.  Those contracts that were signed in the 1980s 
are outdated and Congress should direct that those new contracts 
consistent with the current realities be used.
	So I want to end by thanking the committee for the opportunity 
to testify.  I know you are faced with important decisions that will 
influence the role of nuclear power in the United States in the 
future, and I urge you to continue to insure that nuclear energy is a 
viable option for our country.  Thank you.
	[The prepared statement of Anthony F. Earley, Jr. follows:]

PREPARED STATEMENT OF ANTHONY F. EARLEY, JR., CHAIRMAN 
AND CHIEF EXECUTIVE OFFICER, DTE ENERGY COMPANY, ON 
BEHALF OF NUCLEAR ENERGY INSTITUTE

        Mr. Chairman and members of the Committee, my name is 
Tony Earley.
        I am Chairman and Chief Executive Officer of DTE Energy 
headquartered in Detroit.  DTE Energy is a diversified energy 
holding company that owns, among other companies, the Detroit 
Edison Company, which serves over 2 million customers in 
southeast Michigan.  One of our most important electric generating 
assets is the 1130 MW Fermi 2 nuclear power plant which has 
been a workhorse of our system since 1988.
        As we look to the future, there is a growing need for baseload 
generation across the United States.  In Michigan, our Fermi plant 
was the last baseload plant to come on line.  Our state has 
identified a need to make significant generating additions in the 
next decade.  At Detroit Edison, we are actively engaged in 
planning studies analyzing the possibility of building a second 
nuclear plant at our Fermi site.  While there are many issues to 
consider before proceeding with a new nuclear plant, plans for the 
management and disposal of nuclear waste are critical to the 
decision making process.
        I come here today not only in my capacity as the CEO of a 
company that owns a nuclear plant, but also as Chairman of the 
Nuclear Energy Institute (NEI).  NEI is the trade association of the 
U.S. nuclear industry.  Our membership includes the owners of all 
U.S. nuclear power plants, as well as a large majority of the firms 
that supply equipment and technical expertise to the industry.
        Thank you for this opportunity to express the nuclear energy 
industry's strong support of H.R. 5360, the Nuclear Fuel 
Management and Disposal Act.  I also will address additional 
provisions that we believe would strengthen the legislation's goal 
to enhance the management and disposal of used nuclear fuel and 
high-level radioactive waste, to ensure protection of public health 
and safety, and to ensure the territorial integrity and security of the 
repository at Yucca Mountain.   

Summary
        In keeping with the scope of this hearing, I will focus my 
testimony on these key issues:
         The Department of Energy (DOE) must make visible and 
measurable progress in implementing an integrated 
national used nuclear fuel management strategy.  The 
Yucca Mountain, Nevada, repository is a critical 
component of any such integrated strategy.  This progress 
will help ensure that the expanded use of nuclear energy 
will play a key role in our nation's strategy for meeting 
growing electricity demand.  
         H.R. 5360 can play a key role in establishing a solid basis 
for making necessary progress toward addressing the 
challenges facing the Yucca Mountain project, as well as 
helping set the stage for new nuclear plants.
         Congress should add additional legislative provisions to 
H.R. 5360 to support the removal of used fuel from 
commercial nuclear plant sites as soon as possible, 
together with steps to accelerate development of new 
technological approaches that would substantially benefit 
approaches toward the disposal of used fuel.   

Nuclear Energy Must Play a Key Role in Our Energy Future
        In his 2006 State of the Union address, President Bush 
affirmed the nation's commitment to "safe, clean nuclear energy" 
as part of a diverse portfolio that will meet America's future 
electricity needs.  A long-term commitment to nuclear energy will 
make the United States more energy independent and ensure 
diversity of energy sources.  The Administration and Congress 
demonstrated strong leadership by enacting the Energy Policy Act 
of 2005.  This legislation encourages diversity of energy sources, 
including emission-free sources of electricity, such as nuclear 
energy.
        The United States has demonstrated remarkable leadership in 
advancing the commercial use of nuclear energy.  Its 103 reactors 
have achieved record levels of safety, reliability and efficiency.  I 
am convinced that nuclear energy offers a clean, reliable and cost-
effective answer to many of our nation's current and future energy 
needs.  Nuclear energy offers several unique advantages.  It is the 
only expandable baseload energy source that does not emit carbon 
or other greenhouse gases into the atmosphere during operation.  
Nuclear energy safely and reliably provides price stability for 
electricity customers as the prices for fossil fuels fluctuate.  It also 
provides exciting new opportunities in areas such as hydrogen 
production.  It is essential that nuclear energy maintain at least the 
current 20 percent contribution to U.S. electricity production.  
Maintaining that level of production will require construction of a 
significant number of new nuclear plants beginning in the next 
decade.
        There is strong, bipartisan support for a continuing significant 
role for nuclear power.  More than two-thirds of the public 
supports keeping nuclear energy as a key component of our energy 
portfolio.  Many in the environmental community recognize and 
endorse the role that nuclear energy can play in controlling 
greenhouse gas emissions.  The industry appreciates the 
recognition of nuclear energy's importance that Congress and the 
Administration demonstrated in last year's comprehensive Energy 
Policy Act of 2005.
        Recently, a new coalition of diverse organizations and 
individuals has been formed to educate the public on nuclear 
energy and participate in policy discussions on U.S. energy issues.  
The Clean and Safe Energy Coalition, co-chaired by Greenpeace 
co-founder Patrick Moore and former Environmental Protection 
Agency Administrator and New Jersey Governor Christine Todd 
Whitman, includes business, environmental, labor, health and 
community leaders among its more than 430 members. 

The Need for Legislative Action
        To realize fully the benefits that nuclear power offers, 
however, the country must resolve outstanding issues related to the 
ultimate disposal of used nuclear fuel.  Ratepayers across America 
have paid more $27 billion into the Nuclear Waste Fund, and 
continue to pay an additional $750 million each year.  However, 
DOE has yet to move used fuel from reactor sites as required by 
the Nuclear Waste Policy Act.  It is, in fact, eight years behind 
schedule in meeting its statutory obligation.  Moreover, electricity 
customers have had to finance costly on-site storage facilities.  
        The causes for the failure of the federal used nuclear fuel 
program to date are well-documented.  The fundamental problem, 
however, lies not with the authorizing legislation that Congress 
enacted 25 years ago.  It is, rather, a failure to implement that 
legislation, as evidenced by a failure to appropriate sufficient funds 
for the repository and by a failure to follow-through on a consistent 
commitment to develop the repository.  Although new legislation 
to amend the Nuclear Waste Policy Act is paramount, it is even 
more critical that the federal government commit itself to the 
implementation of existing law.
        The nuclear energy industry is encouraged by the ambitious 
schedule announced by DOE on July 19, 2006, for submission of 
the license application by June 30, 2008, and the "best-achievable" 
construction schedule that could have the repository begin 
receiving used fuel in March 2017.  The industry encourages DOE 
to submit the application as soon as possible so the Nuclear 
Regulatory Commission (NRC) review can begin.
        Although DOE's announcement of a schedule for licensing the 
repository is a significant development, experience suggests that 
the schedule will be difficult to achieve without congressional 
action in a number of areas:
         Congress' providing appropriations consistent with 
Administration requests
         an NRC construction authorization decision consistent with 
the timelines contained in the Nuclear Waste Policy Act
         any necessary Federal or state authorizations or permits for 
the repository and the transportation system
         DOE's achieving a nuclear culture consistent with that 
needed to be a successful NRC licensee.

        Enactment of the Nuclear Fuel Management Disposal Act, 
H.R. 5360, with the amendments we propose, as spelled out below, 
will help advance several of these important objectives. 

H.R. 5360 Supports the Future Role for  
Nuclear Power in Our National Energy Strategy

Waste Confidence Is Affirmed
        The nation must be confident that policies are in place to 
ensure the safe and secure storage and disposal of used nuclear 
fuel.  This waste confidence determination is reflected in NRC 
rules requiring an NRC finding of "waste confidence" to support 
various licensing decisions.  However, such an approach creates 
uncertainty because NRC regulations and licensing decisions are 
subject to litigation, and the issue is one of public policy, not 
regulatory or technical determination. 
        Section 9 of H.R. 5360 takes the very important step of 
codifying the waste confidence rule.  This will help avoid potential 
contentions in individual plant licensing proceedings over the 
timing and certainty of DOE's performance with respect to its 
obligations.  We strongly support this important step in creating 
certainty for major new investments by the nuclear industry in 
response to Congress' Energy Policy Act of 2005.
        Managing the nation's used fuel is a firmly established federal 
obligation and, as such, is a matter of broad national policy under 
the purview of the elected representatives of our country's people.  
There is solid scientific and technical justification to affirm waste 
confidence.  In 2001, the National Academy of Sciences confirmed 
four decades of international scientific consensus that geologic 
disposal is the best method for managing used nuclear fuel.  
Congress approved a geologic disposal site at Yucca Mountain in 
2002. 
        In the Energy Policy Act, Congress included provisions that 
encourage the construction of new nuclear power plants, 
demonstrating public confidence in the nation's ability to manage 
used reactor fuel in the future.  In addition, DOE has safely 
operated a geologic disposal site for transuranic radioactive waste 
near Carlsbad, New Mexico-the Waste Isolation Pilot Project.  
        Issues regarding the timing and certainty of DOE's 
performance toward meeting its statutory obligations should be 
resolved in repository proceedings, or in Congress.  Litigation of 
such issues as part of individual plant licensing proceedings is 
neither efficient nor appropriate.  The NRC has long recognized 
that individual plant licensing proceedings should not be burdened 
with debates over DOE's development of the repository.  Congress 
should codify "waste confidence" as called for in H.R. 5360, so 
that the NRC need not address this broad public policy matter in 
routine licensing proceedings.

Artificial Constraints on Repository Operations Are Eliminated
        Currently, a statutory limit of 70,000 metric tons (MT) exists 
on the amount of nuclear waste material that can be accepted at 
Yucca Mountain.  The environmental impact statement for the 
project analyzed emplacement of up to 105,000 MT of commercial 
used fuel in the repository.  Additional scientific analyses suggest 
significantly higher capacity could easily be achieved with changes 
in the repository configuration that use only geology that has 
already been characterized and do not deviate from existing design 
parameters.  Advanced nuclear fuel cycle technologies could 
provide significant additional capacity for disposing of waste 
products in Yucca Mountain.
        Decisions on licensing and operations of a deep geologic 
repository at Yucca Mountain should be based on scientific and 
engineering considerations through DOE technical analyses and 
the NRC licensing process, not on artificial constraints.  Given the 
decades of study and the billions of dollars invested in Yucca 
Mountain, it makes sense that we fully and safely utilize its full 
potential capacity, rather than developing multiple repositories 
when there is no technical reason to do so.  H.R. 5360 will allow 
the nation to do just that by lifting the artificial 70,000 MT 
capacity limit.

H.R. 5360 Includes Key Provisions for Yucca Mountain 
Progress

Offsetting Collections Reclassification Will Enhance Funding 
Predictability 
        Congress established the Nuclear Waste Fund to cover costs 
associated with disposal of commercial used nuclear fuel.  This 
fund is paid for by a one-tenth-of-a-cent-per-kilowatt-hour fee on 
electricity used by consumers of nuclear energy.  Congress has 
routinely failed to appropriate to the repository program the total 
fees paid into the Nuclear Waste Fund in that year.  Further, 
restrictions on the federal budget have prevented fees collected, but 
not appropriated, in one year from being appropriated in 
subsequent years.     
        As a result, Yucca Mountain budget requests have been cut by 
more than $1 billion over the past decade.  Program funding 
requirements are forecast to increase substantially over the next 
few years.  If overall spending totals remain flat, even more 
significant delays could result, not because nuclear power 
consumers have not provided the funds necessary to support the 
program, but because of inappropriate federal budget accounting. 
        To date, consumers of nuclear power have committed more 
than $27 billion in fees and accrued interest into the fund.  They 
continue to pay at a rate of $750 million each year.  However, only 
some $9 billion has been spent on the project, leaving a balance in 
excess of $18 billion.  In recent years, fee income has significantly 
exceeded the annual spending from the fund.
        H.R. 5360 would reclassify prospective annual fees so that 
appropriations up to the full amount of fee revenues for any year 
would not be limited by discretionary spending caps.  Although 
this approach would be a major step forward, we believe that 
Congress also should reaffirm the compact with ratepayers in the 
Nuclear Waste Policy Act and provide that any appropriation for 
the program could be offset by balances in the Nuclear Waste 
Fund, whether derived from prospective fees or past fees and 
interest.  This approach has been advocated consistently by the 
leadership of this Committee from both sides of the aisle.
        In addition, we believe it is important for the Congress to act to 
maintain the integrity of the Nuclear Waste Fund.  We support 
amending H.R. 5360 to define clearly that only activities directly 
contributing to meeting the federal government's obligation under 
the Nuclear Waste Policy Act can be supported from the Nuclear 
Waste Fund.  This includes expenditures related to transportation, 
storage and disposal of used fuel and high-level waste.
        Advanced research on energy technologies has consistently 
been funded through general revenues, and there is no reason 
research on advanced technologies in processing used nuclear 
fuel-such as those contemplated under the President's Global 
Nuclear Energy Partnership (GNEP) program-should be financed 
any differently.  The nuclear industry is deeply appreciative of the 
amendment successfully offered by Chairman Barton to the fiscal 
2007 Energy and Water Development appropriations bill in the 
House.  This amendment prohibits funding from the Nuclear Waste 
Fund to support GNEP.  We believe this should be incorporated 
into permanent law.
        Additionally, Congress should reaffirm its authority over any 
changes in the Nuclear Waste Fund fee by requiring such changes 
be made by statutory amendment. 



H.R. 5360 Will Enhance Clarity and Stability in the Licensing 
Process 
        The NRC repository licensing process should be restructured to 
ensure that the proceedings are prioritized properly.  First, a 
reasonable, but finite, schedule for review of the authority to 
"receive and possess" fuel is needed following approval of the 
construction license.  This would be consistent with an established 
schedule for the initial review of the construction license 
application and could avoid dilatory procedural challenges that 
would undermine the government's ability to meet its contractual 
obligations and avoid the significant costs of delay.  
        Second, clarification must be provided as to what activities are 
authorized to develop used fuel management infrastructure prior to 
the NRC granting a construction license, including the construction 
of a rail line to connect the Yucca Mountain site with the national 
rail network.   Regulatory authority for the transportation system 
needs to be clarified as well.
        Third, the hearing process for the authorization to receive and 
possess fuel should be simplified to provide for clear and concise 
decision-making.
        Finally, several key areas need clarification.  These include 
land management and regulations that apply to repository 
construction and operations.  In addition, there is a need to clarify 
which agencies will administer those regulations.
        H.R. 5360 addresses each of these issues to increase the 
prospect that the "best-achievable" schedule announced by DOE 
can be met.

Congress Should Consider Additional Steps to  
Promote Comprehensive Used Nuclear Fuel Management

        While industry fully supports H.R. 5360 and believes its 
enactment would be a major milestone in implementing our 
national strategy for managing used nuclear fuel, we believe 
Congress should include a number of additional provisions in 
comprehensive legislation. 

DOE Should Move Used Nuclear Fuel From Reactor Sites as 
Soon as Possible
        The industry's top priority is for the federal government to 
meet its statutory and contractual obligation to move used fuel 
from operating and decommissioned reactor sites.  The 
government already is eight years delayed in meeting this 
obligation, and it will be at least another decade before the 
repository is completed.  That failure is the subject of more than 60 
lawsuits.  These lawsuits potentially expose the federal 
government to billions of dollars in judgments and settlements.  
        Further delays in federal receipt and movement of used nuclear 
fuel and defense waste products will only add to utility damage 
claims.  According to DOE, these delays will increase taxpayer 
liability for defense waste site life-cycle costs and Yucca Mountain 
fixed costs.
        While DOE moves forward to license, construct and operate 
the Yucca Mountain repository, the government must take title to 
used fuel and move it to secure federal facilities as soon as 
practicable.  A number of proposals have been made to address the 
issue of "interim or temporary storage."  
        The best approach would be for the federal government to 
begin to move fuel in proximity to the planned repository at the 
Nevada Test Site. 
We urge the Congress to evaluate alternative interim storage 
proposals.  We recommend the following principles:
         Minimize the number of interim storage sites to reduce 
costs and maximize efficiencies of consolidation.
         Provide host site benefits ideally linking interim storage to 
recycling and reprocessing technology development as an 
incentive for voluntary participation.
         Recognize that, while the Nuclear Waste Fund could be 
used to pay for this interim storage, it should not be used to 
develop the complementary technology.
         NRC must be provided with the necessary resources and 
appropriate management focus.

        It appears that one or two temporary storage sites that provide 
benefits desired by the host state and community are the 
appropriate approach.  Industry experience demonstrates that such 
facilities can be sited, licensed and constructed on an expedited 
schedule.  We are encouraged that DOE has advised Congress, in 
its solicitation for prospective sites for nuclear fuel recycling 
facilities, that there will be, of necessity, some temporary storage 
of used nuclear fuel involved.  Several communities have 
expressed initial interest in participating in such a project.  We 
believe Congress should work with DOE, industry and potential 
host sites to determine what steps will best facilitate the movement 
of used fuel from utility sites, including appropriation mitigation 
benefits, and incorporate appropriate provisions into H.R. 5360. 
        Both House and Senate Energy and Water Development 
appropriations bills for fiscal 2007 have provided direction on this 
issue.  Although clear interest exists in looking at options for early 
movement of fuel, no option has demonstrated that it is politically 
and technically workable and could be accomplished in a timely 
manner.  We believe a cooperative and supportive host site is 
critical to meeting these criteria.  
        The industry does not believe that the "take title" approach 
suggested in H.R. 4538 by any measure either meets the 
government's statutory obligation or provides any benefit.  The 
requirement in that legislation that all used fuel at reactor sites be 
moved immediately into dry cask storage could add up to $800 
million a year over five years to the costs of producing nuclear 
energy.  Regardless of the temporary storage strategy chosen, it is 
critical that those activities not divert attention and resources from 
repository development.

New Reactor Waste Disposal Contract Issues Need to Be 
Addressed
        As utilities prepare to license and construct new nuclear power 
plants, it is important that appropriate changes be made in the 
Standard Contract for Disposal of Spent Nuclear Fuel and/or High-
Level Radioactive Waste originally established by rulemaking (10 
CFR, Part 961) to reflect developments since these contracts were 
originally drafted in the 1980s.  While the language in both the 
Nuclear Waste Policy Act and disposal contracts allows an existing 
contract to be amended adding new plants, DOE's failure to 
perform, and the subsequent litigation, has created a situation 
where this option may be difficult to execute.  Instead, the 
preferred path forward would be to enact legislation directing DOE 
to enter into new disposal contracts for new nuclear plants that are 
consistent in form and substance with the existing disposal 
contracts, but which take into account the schedule for the 
operation of new plants.  In particular, the 1998 deadline in the 
existing contracts should be revised in contracts executed for new 
plants. 
        Congress also should consider steps that could facilitate early 
resolution of future claims by utilities against the federal 
government for its continuing failure to meet its obligations under 
the Nuclear Waste Policy Act.

Yucca Mountain Licensing Process Should Provide Flexibility to 
Address Future Developments 
        As provided by existing regulations, Congress should direct 
DOE to incorporate features into its repository development plans 
that maintain flexibility for future generations to make informed 
decisions based on operational experience, changing energy 
economics and technological developments.  It should be made 
clear that it was always the intent that the repository design retains 
the ability to monitor and, if needed or desired, retrieve the used 
fuel.
        The nuclear energy industry supports enhancements to the 
Yucca Mountain repository that would provide greater long-term 
assurance of safety and permit DOE to apply innovative 
technology at the repository as it is developed.  These 
enhancements include: 
         extensive monitoring of the used nuclear fuel placed in the 
repository and its effects on the surrounding geology for 
300 or more years
         the ability to retrieve the used nuclear fuel from the 
facility for an extended period 
         periodic review of updates to the repository license that 
take into account monitoring results and ensures that the 
facility is operating as designed. 

        DOE already has committed to facilitate the use of these 
elements in its repository planning.  According to DOE's final 
environmental impact statement, for a period of 50 to 300 years, 
the federal government will "collect, evaluate and report on data" 
to assess the performance of the repository and the ability to 
retrieve the used fuel within the facility, if desired.  In addition to 
monitoring material within the facility, DOE will conduct tests and 
analyses to ensure that the repository is constructed and operated 
according to strict guidelines.  Although DOE is pursuing these 
elements, Congressional direction on the proposed enhancements 
would provide greater certainty on the scientific and regulatory 
oversight of long-term repository operation and the condition of 
the material stored there.
        Doing so would require no modification to the existing federal 
statutory or regulatory framework.  DOE could include these 
enhancements as part of its "receive and possess" application and 
the commitment to complete them should be incorporated as a 
condition of the NRC license.  
        This direction will offer greater assurance to the public that 
long-term stewardship of used fuel at Yucca Mountain will be 
carefully monitored throughout repository operation.  It also would 
allow DOE to take advantage of future technological innovations 
to improve the repository or provide for the potential reuse of the 
energy that remains in the fuel. 

Yucca Mountain's Public Health, Safety Standard  
Should Be Consistent With Regulatory Precedents
        We believe that the revised 1 million-year radiation standard 
proposed by the Environmental Protection Agency would be fully 
protective of public health and the environment, and that the 
repository design could meet such a standard.  Nonetheless, we are 
deeply concerned that the potential for an extended rulemaking 
review process and subsequent litigation could result in yet more 
costly, unnecessary delays in the Yucca Mountain project.  In 
addition, given the significance of the issue, we believe it is 
important for Congress to address the matter directly.
        Congress should carefully consider the inherent uncertainties in 
establishing regulations extended over such an unprecedented 
period.  This approach could have unintended effects on regulatory 
standards for other non-radioactive and radioactive hazardous 
materials.  We advocate incorporating a 10,000-year regulatory 
standard in legislation.  Such a compliance period is consistent 
with that prescribed for all radioactive waste requiring disposal in 
other geologic repositories.  The million-year standard applies only 
to Yucca Mountain.  
        The 10,000-year standard, for example, applies to long-lived 
waste, such as transuranic waste at the Waste Isolation Pilot Plant.  
The 10,000-year standard also applies to land disposal of non-
radioactive hazardous waste by means of underground injection.  
In fact, the 10,000-year standard is considerably greater than other, 
analogous regulatory compliance periods.  These include 500 years 
for the land disposal of low-radioactive waste; and 1,000 years for 
the decommissioning of NRC licensed nuclear facilities. 

Adaptive Staging
        The 2003 report of the National Research Council of the 
National Academy of Science, "One Step at a Time." 
recommended the use of adaptive staging for repository 
development.  While there are elements of this concept that appear 
attractive, we have significant concerns that the specific processes 
recommended in the report could unduly complicate and delay 
repository licensing and operations due to lack of certainty in 
decision making.

Used Nuclear Fuel Recycling
        The nuclear energy industry has shown consistent and strong 
support for research and development of advanced fuel-cycle 
technologies incorporated in the Advanced Fuel Cycle Initiative 
(AFCI).  In anticipation of a major expansion of nuclear power in 
the United States and globally, it is appropriate to accelerate 
activities in this program.  The resurgence in development of 
nuclear energy is expected to require advanced fuel cycles.  
However, regardless of the success of AFCI technology, a 
repository will be necessary to handle defense waste, as well as 
commercial used nuclear fuel and its byproducts, regardless of any 
fuel cycle that is ultimately developed.
        President Bush has presented a compelling vision for a global 
nuclear renaissance through the GNEP.  This initiative provides an 
important framework to satisfy U.S. and world needs for an 
abundant source of clean, safe nuclear energy while addressing 
challenges related to fuel supply, long-term radioactive waste 
management, and proliferation concerns.  As recently introduced 
by DOE, it may be possible that currently available technologies 
could be used creatively to jump-start the development of the 
needed advanced nuclear fuel cycle technologies. 
        We appreciate the steps that DOE has taken to solicit industry 
views on the timing, direction and defining roles of interested 
parties in the Global Nuclear Energy Partnership.  The extensive 
response the Department received to its Expression of Interest last 
week, and additional input it will receive in the coming months, 
will help DOE and Congress make more-informed decisions on the 
best way to proceed with research and development of these 
technologies.  
        We recognize that Congress has important questions regarding 
this program.  DOE's near-term focus for GNEP is to determine, 
by 2008, how to proceed with the demonstration of advanced 
recycling technologies and other technological challenges.  We 
also recognize that special attention must be given to how facilities 
would be licensed and the potential impact this could have on NRC 
resources for major licensing actions on new plants and Yucca 
Mountain in parallel periods.   Consequently, the industry fully 
supports increased funding for AFCI in fiscal 2007.  However, 
neither AFCI nor GNEP reduces the near-term imperative to 
develop the Yucca Mountain repository.

A Constructive Role for Nevadans
        The nuclear energy industry supports an active and 
constructive role for Nevada in the development of Yucca 
Mountain to help ensure the safety of its citizens.  The industry 
also supports compensation for the State to account for the 
program's socioeconomic impact, as called for in the Nuclear 
Waste Policy Act.  This model is consistent with the siting and 
operation of the Waste Isolation Pilot Plant.
        The industry is encouraged by the steps DOE has taken to work 
with affected local governments in the State, and we further 
encourage DOE to expand its interactions with Nevadans 
interested in constructive engagement in the project.  The industry 
urges the Congress to include provisions in H.R. 5360 to foster 
these developments.
Conclusion
        We must never lose sight of the federal government's statutory 
responsibility for civilian used nuclear fuel disposal, as stated by 
Congress in the Atomic Energy Act of 1954 and the Nuclear Waste 
Policy Act of 1982.  The industry fully supports the fundamental 
need for a repository so used nuclear fuel and the byproducts of the 
nation's nuclear weapons program are managed safely and 
securely in a specially designed, underground facility.  World-class 
science has demonstrated that Yucca Mountain is an eminently 
suitable site for such a facility.  
        A viable used fuel management strategy is necessary to retain 
long-term public confidence in operating existing nuclear power 
plants and in building new nuclear power plants to meet our 
nation's growing electricity needs, and to fuel our economic 
growth.  The public confidence necessary to support construction 
of new nuclear plants is linked to successful implementation of an 
integrated national used fuel policy, which includes a continued 
commitment for the long-term disposition of used nuclear fuel.  
This requires a commitment from the Administration, Congress 
and other stakeholders to ensure that DOE makes an effective 
transition from a scientific program to a licensing and construction 
program, with the same commitment to safety.  New waste 
management approaches, including temporary storage and nuclear 
fuel recycling, are consistent with timely development of Yucca 
Mountain.
        Enactment of H.R. 5360, with the amendments we have 
advocated, is the critical prerequisite to implementing our national 
policy for used fuel management.

	MR. HALL.  Thank you very much.  The Chair recognizes Ms. 
Boyd, Legislative Director, Public Citizen, for 5 minutes, please.  
Thank you.
        MS. BOYD.  I would like to thank the Chairman and the 
members of the subcommittee for the opportunity to testify on 
issues related to nuclear waste storage and disposal.  My name is 
Michele Boyd, and I am the Legislative Director of Public 
Citizen's Energy Program.  Public Citizen is a 35-year-old public 
interest organization with over 100,000 members nationwide.  We 
represent consumer interests through research, public education, 
and grassroots organizing.
	Five years after the September 11 attacks, Congress has yet to 
implement safeguards that address our must vulnerable and 
dangerous security threat, the storage of highly radioactive spent 
fuel from commercial nuclear reactors.  If any of the many spent 
fuel pools in the United States were breached through a terrorist 
attack or any other action, the health, environmental, and economic 
consequences could be catastrophic.  National focus should be on 
addressing the immediate threats from vulnerable spent fuel 
storage, not on wasting resources on a failed repository program, a 
dangerous reprocessing plan, or interim away from reactor storage 
of waste.  The most sensible action in the near-term is to require 
hardened on-site storage.
	Clearly, the United States does not have a near-term solution 
for the permanent storage of spent fuel.  DOE's flawed scientific 
and quality assurance practices have repeatedly cast serious doubt 
on the validity of the work performed at Yucca Mountain.  The 
Administration's proposed Nuclear Fuel Management and 
Disposal Act fails to address any of the project's fundamental 
problems.  Instead, this bill overrides public health and safety laws 
and eliminates the role of science in determining whether or not 
Yucca Mountain can safely isolate nuclear waste for hundreds of 
thousands of years, as is required under the law.
	This bill should not be enacted as it would be another failed 
attempt to prop up this deeply flawed project.  In February the U.S. 
Department of Energy announced the Global Nuclear Energy 
Partnership as a research and development program to develop 
advanced recycling technologies that would in theory postpone the 
need to license additional geological repositories until the next 
century.  International and U.S. experience, however, clearly 
shows that reprocessing at fast reactors are not going to solve our 
Nation's radioactive waste problem.  Rather, reprocessing would 
dramatically increase the threat from and complexity of dealing 
with our nuclear waste.
	Reprocessing would also undermine U.S. global 
nonproliferation efforts and cost U.S. taxpayers at least $100 
billion.  For the foreseeable future reprocessing and plutonium fuel 
use simply does not make sense economically, environmentally, or 
from a national security perspective.  With no permanent 
repository for nuclear waste, attention has turned to dry cask 
interim storage.  According to a 2006 study by the National 
Research Council, dry casks were designed to store waste, not to 
resist terrorist attacks.  The NRC has granted interim storage 
licenses at 42 sites but it has not considered the environmental 
impacts of an attack at any of those sites.
	Significantly, a recent 9th Circuit Court decision rejected the 
NRC's claim that the National Environmental Policy Act does not 
require terrorism considerations.  The current interim fuel storage 
proposals in the Senate and House fiscal year 2007 Energy and 
Water Appropriations bills also fail to address the security threats 
posed by dry cask storage.  Away from reactor interim storage 
would not meaningfully reduce the number of locations where 
spent fuel is located and it would increase the transportation risk to 
the public.  Instead of interim away from reactor storage the focus 
should be on improving the security of spent fuel at the sites.
	The Bush Administration and Congress have urged Americans 
to pay greater attention to and take more responsibility for our 
national security.  It is with that in mind that citizens and public 
interest groups have developed what we are calling the principles 
for safeguarding nuclear waste at reactors, which are being release 
today for the first time.  I would like to submit for the record the 
list of 94 national and grassroots groups from 37 States that have 
signed on to these principles thus far.
	The key elements of the principles are to, first, require a low-
density, open-frame layout for spent fuel pools, which could allow 
enough air circulation to keep the fuel from catching fire in the 
event of a water loss in the pools due to an attack or an accident.  
Establish hardened on-site storage or HOSS for the waste removed 
from the pools.  The overall objective of HOSS should be that the 
amount of releases projected in even severe attacks should be low 
enough that the storage system would be unattractive as a terrorist 
target.
	Protect fuel pools to withstand an attack by air, land, or water 
from a force at least equal in size and coordination to the 9/11 
attacks.  Require periodic review of HOSS facilities and fuel pools 
and dedicate funding to local and State governments to 
independently monitor the site.   And, finally, prohibit 
reprocessing.  The Spent Nuclear Fuel On-Site Storage Security 
Act of 2005, which was introduced in both the House and the 
Senate by the Nevada and Utah delegations would be a good basis 
for incorporating these principles into law.  I thank you again for 
the opportunity to testify in front of this committee.
	[The prepared statement of Michele Boyd follows:]

PREPARED STATEMENT OF MICHELE BOYD, LEGISLATIVE 
DIRECTOR, PUBLIC CITIZEN

        I would like to thank the Chairman and members of the 
Subcommittee on Energy and Air Quality for the opportunity to 
testify on issues related to nuclear waste storage and disposal. My 
name is Michele Boyd and I am the Legislative Director of Public 
Citizen's Energy Program. Public Citizen is a 35-year old public 
interest organization with over 150,000 members nationwide. We 
represent consumer interests through research, public education 
and grassroots organizing. 
        Five years after the September 11 attacks, Congress has yet to 
implement safeguards that address our most vulnerable and 
dangerous security threat - the storage of highly radioactive spent 
fuel from commercial nuclear reactors in fuel pools. If any of the 
many spent fuel pools in the United States were breached through 
terrorist attack or any other action, the health, environmental, and 
economic consequences could be catastrophic. National focus 
should be on addressing the threats from this waste, not on wasting 
resources on a failed repository program, a dangerous reprocessing 
program, or interim away-from-reactor storage.  The most sensible 
action in the near-term is to require hardened on-site storage.
        I am going to start with a discussion of the proposed geologic 
repository at Yucca Mountain in Nevada, followed by the Global 
Nuclear Energy Partnership (GNEP) and the proposal for interim 
storage.  I will conclude with a plan developed by national and 
grassroots public interest groups to address the urgent need to 
protect the public from the threats posed by the current vulnerable 
storage of commercial spent fuel. Unlike the other proposed 
"solutions," this proposal could be implemented in the near-term 
and would dramatically increase the safety of spent fuel for 
decades to come.

Yucca Mountain
        Clearly, the United States does not have a near-term solution 
for the permanent storage of high-level nuclear waste. The U.S. 
Department of Energy's (DOE) recent estimate of when Yucca 
Mountain will begin accepting waste is overly optimistic, because 
it does not factor in delays due to funding limitations or litigation 
and ignores the scientific problems with the site. Nor does DOE 
have a current estimate of how much the Project will cost. Energy 
Secretary Bodman stated in February that DOE "may never have 
an accurate prediction of the cost."  
        Even under DOE's optimistic scenario, the proposed geologic 
repository at Yucca Mountain is not predicted to begin receiving 
waste until at least 2017. Transporting all of the waste to the site 
then would take more than 30 years.  Meanwhile, spent fuel at 
reactor sites remains vulnerable to accidents and attacks for 
decades.  
        DOE's flawed scientific and quality assurance practices have 
cast serious doubt on the validity of the work performed at Yucca 
Mountain. Quality assurance (QA) is crucial to sound science and 
engineering, especially for a project employing thousands and 
spanning several decades. QA is used to verify methods and 
results, and is the very backbone of scientific research and 
engineering design. Since 1988, the Government Accountability 
Office has issued eight reports repeatedly criticizing DOE's quality 
assurance and model validation programs. An August 2006 report 
by the DOE's Office of Inspector General concluded that DOE's 
Corrective Action Program to identify and resolve the ongoing QA 
problems "was not effectively managing and resolving conditions 
adverse to quality at the Yucca Mountain Project," including 
omitting problems from the Corrective Action Program, failing to 
implement the corrective actions in a timely manner, and failing to 
solve the underlying problem even when implemented.  
        New cases of scientific misconduct continue to surface. Some 
of the more recent revelations include: 
         In January 2006, the NRC staff released a critical report of 
a Bechtel SAIC LLC (BSC) audit made last fall at 
Lawrence Livermore National Laboratory. The Bechtel 
audit was on research related to corrosion rates of the 
metals to be used to construct the waste packages and drip 
shields. The NRC found that researchers incorrectly 
measured the amount of corrosion on the metals, and 
overestimated the ability of the metals to isolate nuclear 
waste in engineered packages. The NRC also found that 
researchers failed to calibrate equipment, used equipment 
beyond its verifiable accuracy range, and referenced 
cancelled documents. According to the NRC's audit report, 
"the NRC observers questioned whether the corrosion data 
could be considered technically sound and defensible."  
Because of the problems NRC discovered, DOE issued a 
stop work order on all cask research. 
         In December 2005, DOE instructed BSC, its main 
contractor, to cease engineering work and safety assessment 
on key areas of design, including the redesign of the surface 
facility. This order was the result of QA and design control 
deficiencies, which were revealed by a whistleblower.  
Despite Bechtel's failings, DOE nevertheless extended its 
contract for another year, with an option for a second year. 
         In March 2005, it was revealed that U.S. Geologic Survey 
(USGS) scientists studying water infiltration and climate at 
Yucca Mountain in Nevada altered and omitted various 
data related to QA of the modeling of water flow through 
the ground at Yucca Mountain. Faster water movement will 
cause increased amounts of radioactive waste to migrate 
more rapidly through the ground to the aquifer. DOE hired 
Sandia National Laboratory to create new infiltration 
models redo all of the infiltration analyses that were a 
primary basis for its 2002 Yucca Mountain Site 
Recommendation. 

        The Administration's proposed "Nuclear Fuel Management and 
Disposal Act" (H.R. 5360 and S. 2589) has the goal to "facilitate 
the licensing, construction and operation" of Yucca Mountain, but 
in fact it fails to address any of the project's fundamental 
problems.  Rather, this bill is about overriding public health and 
safety laws and eliminating the role of science in determining 
whether Yucca Mountain can safely isolate nuclear waste for 
hundreds of thousands of years, as is required under the law.  This 
bill is fundamentally contrary to the findings and purposes of the 
Nuclear Waste Policy Act (section 111), including a finding "to 
ensure that such waste and spent fuel do not adversely affect public 
health and safety and the environment for this or future 
generations." Specifically, the bill:
         Weakens Public Health and Environmental Laws: If 
enacted, the bill would waive state and local air quality 
laws at the site, and preempt states' traditional authority to 
manage its waters, setting an alarming precedent for other 
DOE projects and sites. The bill would undermine the 
National Environmental Policy Act (NEPA) by exempting 
DOE from having to consider the need for the action, 
alternative actions, or a no-action alternative-the key 
analyses of an environmental impact statement-and 
legislating that any action related to the site is "beneficial" 
before an analysis of the action has been done under NEPA. 
         Preempts State and Tribal Rights: All authority over the 
transportation of radioactive waste would be given to DOE, 
contrary to the National Academy of Sciences' 
recommendation that state, local, and tribal governments 
must play a central role in waste transportation.  The bill 
would pre-empt all states' authority over the management 
of hazardous, mixed, low-level, and transuranic wastes 
under the Resource Control and Recovery Act (RCRA) if 
that waste is stored or transported in NRC-certified 
containers, as is the waste transported to and stored at the 
Waste Isolation Pilot Plant (WIPP) in New Mexico. 
         Politicizes Scientific and Technical Decisions: The bill 
would codify NRC's Waste Confidence Rule that there will 
be permanent disposal available for spent fuel "in a timely 
manner," thereby bypassing what should be a scientific and 
technical determination. This sets up the federal 
government for additional lawsuits by the nuclear industry 
for failing to meet its commitments. It also rewards DOE's 
mismanagement of the Yucca Mountain project with direct 
access to future revenue into the Nuclear Waste Fund, and 
allows an unlimited amount of waste to be dumped at the 
site, despite the lack of scientific site characterization 
information necessary to support such a decision.

        This bill should not be enacted, as it would be another failed 
attempt to prop up this failed project.

Reprocessing 
        When the Global Nuclear Energy Partnership (GNEP) was first 
announced in February of this year, the U.S. Department of Energy 
presented it as "a comprehensive strategy to increase U.S. and 
global security, encourage clean development around the world, 
reduce the risk of nuclear proliferation, and improve the 
environment."   The program was presented to Congress largely as 
a research and development program to develop "advanced 
recycling technologies" that would postpone the need to license 
additional geologic repositories for the nation's high-level waste 
until the next century.  The key components of a reprocessing and 
reuse program include reprocessing plants, fuel fabrication 
facilities, and fast reactors, none of which have proven to be 
commercially successful technologies in the United States or 
abroad.
        Since then, the program has morphed several times. In the most 
recent reincarnation announced in August, DOE is now proposing 
to two tracks:
        1. Building a commercial-scale reprocessing plant and a fast 
neutron reactor that uses plutonium fuel with existing or 
soon-to-be-developed technologies. 
        2. Researching and developing transmutation fuel and its use 
in fast reactors.

        In other words, DOE is proposing to jettison most of its 
research on "advanced recycling technologies" and to skip 
demonstration facilities using what DOE claimed would be cleaner 
and "proliferation-resistant" technologies.  
        U.S. and international experience clearly shows that 
reprocessing is not going to solve our nation's radioactive waste 
problem.  Rather, reprocessing would dramatically increase the 
threat from, and complexity of dealing with, nuclear waste from 
power plants; undermine U.S. global nonproliferation efforts; and 
cost U.S. taxpayers at least $100 billion. 
        Reprocessing was first used in the United States in the 1940s, 
as part of the government's program to separate plutonium for 
nuclear weapons.  The U.S. Department of Energy estimates that it 
will cost over $100 billion to clean up the reprocessing waste at 
three nuclear weapons sites in the states of Washington, Idaho, and 
South Carolina.   This waste threatens to contaminate the 
Columbia River and the Savannah River, two of the most 
important water resources in the country.  The only U.S. 
commercial reprocessing facility was located in West Valley, N.Y. 
It was an economic and environmental failure, closing in 1972 
after taking six years to reprocess spent fuel that was initially 
expected to take one year. It left behind a $5.2 billion cleanup 
project that is still on-going more than 30 years later.  
        International experience is no better.  France, England, Russia, 
India, and soon Japan are the only countries in the world that have 
commercial reprocessing facilities.  China is in the design phase of 
a pilot facility.  All of these programs are heavily subsidized by 
their governments. A July 2000 report commissioned by the 
French government concluded that reprocessing and plutonium 
fuel are uneconomical, costing nearly $1 billion more each year for 
plutonium fuel use (in 20 of its 58 reactors) compared to a "once-
through" fuel cycle.   Last year, 20 tons of uranium and plutonium 
leaked from a pipe at the U.K. government-owned THORP 
reprocessing plant. The plant, which was losing money even when 
operational, remains closed and its future is uncertain. Meanwhile, 
the Japanese company, Japan Nuclear Fuel Ltd., recently started up 
its Rokkasho reprocessing plant, which took 15 years to build and 
cost US $20 billion, three times more than initially estimated. 
        Commercial reprocessing worldwide has resulted in about 250 
metric tons of separated plutonium, which is vulnerable to theft.  
This is equivalent to more than 30,000 nuclear bombs. When 
GNEP was first proposed in February 2006, DOE stated that it did 
not want to use reprocessing technology that results in separated 
plutonium. According to Clay Sell, Deputy Secretary of Energy, on 
February 16, 2006:
        It is our goal to develop a technology that allows us to recycle 
in a way that is proliferation resistant. And when I say proliferation 
resistant, what I mean is pure plutonium is not separated as part of 
the recycling process; it is bound together with the other long-life 
actinides which makes the material of a sufficient quantity and of a 
sufficient heat load that concerns about diversion as a 
proliferation matter are greatly reduced, so that is a key 
technology that we seek to develop in partnership with our 
international partners -- advanced recycling.  [Emphasis added]
        The two reprocessing technologies (UREX+ and 
pyroprocessing) that DOE is researching are not "proliferation-
resistant," because the resulting plutonium mixes from these 
technologies are not sufficient to prevent theft. Moreover, both 
technologies can easily be undone to obtain pure plutonium using 
the old, 1940s technology (PUREX).  Now, however, DOE is 
proposing to use a technology that results in a mix of plutonium 
with uranium, which is even less proliferation-resistant than 
UREX+.  According to the International Atomic Energy Agency, 
plutonium-uranium mixtures are "direct use materials" and must be 
secured like separated plutonium. 
        According to a 1996 report by the National Research Council, 
costs of reprocessing and transmutation of spent fuel that has 
already been discharged by existing U.S. reactors "easily could be 
more than $100 billion" (1996 dollars).   The French reprocessing 
firm Areva hired The Boston Consulting Group to issue a report on 
the cost of reprocessing and plutonium fuel use in light-water 
reactors.  The report concludes that reprocessing is economically 
comparable to the once-through cycle, but it relies on unrealistic 
assumptions that do not reflect real-world experience, such as 
assuming that the facility will continuously operate at full capacity 
with no technical problems or other delays and that its capacity can 
be increased significantly without a large increase in capital or 
operating costs.   Notably, the Boston report contains the 
following disclaimer:
        This report was prepared by The Boston Consulting Group at 
the request of AREVA. BCG reviewed publicly available 
information and proprietary data provided by AREVA, but did not 
undertake any independent verification of the facts contained in 
those source materials. Changes in these facts or underlying 
assumptions could change the results reported in this study. Any 
other party using this report for any purpose, or relying on this 
report in any way, does so at their own risk. No representation or 
warranty, express or implied, is made in relation to the accuracy 
or completeness of the information presented herein or its 
suitability for any particular purpose. [Emphasis added.]
        DOE is proposing to use fast reactors to convert long-lived 
waste into shorter-lived waste in order to reduce the amount of 
time that the radioactive waste is dangerous and must be stored in a 
geologic repository.  But this process, called transmutation, is 
plagued by serious technical problems, such as low rates of 
conversion from long- to short-lived waste, unproven fuel 
fabrication systems, and dangers to workers making the fuel. 
        Countries, including the US, have been trying to develop fast 
reactors for 50 years and the results have all been technical and 
economic failures. Over twenty fast reactors have been built since 
1951 in seven countries, all of which have been funded through 
government programs. Eleven of the reactors were large-scale 
designs (over 100 megawatt-thermal), eight of which have been 
shut down as of 2006. Only three reactors still operate: the French 
Phï¿½nix reactor, the Russian BN-600 reactor, and the small 
experimental Joyo reactor in Japan. 
        Fast reactors are more prone to accidents than light water 
reactors because they operate with faster-moving neutrons than 
light water reactors, making them more difficult to control. In the 
United States, the Fermi 1 fast reactor near Detroit had a partial 
nuclear meltdown in October 1966 and a sodium explosion in 
1970. The reactor was closed in 1972. The French and Russian 
reactors also have had safety problems, such as leaking highly 
flammable sodium.  A serious accident at the fuel fabrication 
facility for the Japanese plant resulted in the death of two workers 
in 1999.  Except for the Russian reactor, fast reactors have 
operated less than 50 percent of the time as a result of the ongoing 
safety problems. 
        More than $100 billion has been spent globally in the past 50 
years on fast reactor construction, reprocessing and other efforts to 
make plutonium a viable reactor fuel.  More than $25 billion of 
that has been spent in building fast reactors.   Due to the materials 
and the complexity of the design, the cost of building fast reactors 
is significantly higher than the cost of light water reactors.  The 
Superphï¿½nix reactor in France cost $9.1 billion to construct; the 
smaller Monju reactor in Japan cost $5.9 billion. 
        To achieve GNEP's goal to reduce the volume of waste that 
must be stored in a geologic repository, the U.S. would need 
approximately one fast reactor to every three light water reactors.  
This would cost an additional $80 to $100 billion for 20 to 25 fast 
reactors to transmute the waste from the current 103 operating 
reactors.   Given the $12 billion in subsidies and tax breaks, along 
with other incentives, that it has taken to convince U.S. utilities to 
build new reactors (and not a single utility has fully committed at 
this point), these fast reactors would require massive taxpayer 
subsidies.
        I would like to thank the House of Representatives for cutting 
$130 million for GNEP in the FY2007 Energy and Water 
Development Appropriations Act (H.R. 5427).  Existing 
technology and our current level of knowledge do not provide 
direct paths to nuclear recycling.  For the foreseeable future, GNEP 
is not a program that will reduce amounts of high-level nuclear 
waste.  Rather than being a part of the nuclear waste disposal 
solution, GNEP will be a costly new problem for the future. 



Private Fuel Storage 
        Without a permanent repository available in the near-term, 
there has been interest in away-from-reactor dry cask interim 
storage of spent fuel.  The only site to be licensed by the Nuclear 
Regulatory Commission for away-from-reactor interim storage is 
Private Fuel Storage (PFS) located on the Reservation land of the 
Skull Valley Band of Goshutes in Utah, which now appears 
unlikely to open. On September 7, 2006, the Bureau of Land 
Management denied a right-of-way for a rail line to the site and a 
proposal to transport the waste with heavy-haul trucks.  More than 
4,500 letters, primarily from people from Utah opposed to the 
facility, were sent to the BLM. 
        The Bureau of Indian Affairs also denied approval of the PFS 
lease of the tribal land, listing among other concerns:
         inadequate law enforcement support for the site, 
         the lack of a transportation alternative, 
         uncertainty about the availability of a permanent 
repository, and 
         the lack of an analysis on the environmental impacts of a 
terrorist attack. 

        In a recent federal court decision, San Luis Obispo Mothers for 
Peace, et al. v. United States, the Ninth Circuit Court rejected the 
NRC's claim that the National Environmental Policy Act (NEPA) 
does not require consideration of the environmental effects of 
potential terrorist attacks. The four grounds that the NRC used to 
justify its claim were based on factors it used in rejecting the State 
of Utah's contention that the environmental impacts of terrorism 
should be analysed in the PFS EIS.  The NRC had ruled that (1) 
the possibility of a terrorist attack is far too removed from the 
natural or expected consequences of agency action; (2) because the 
risk of a terrorist attack cannot be determined, the analysis is likely 
to be meaningless; (3) NEPA does not require a "worst-case" 
analysis; and (4) NEPA's public process is not an appropriate 
forum for sensitive security issues.  The Ninth Circuit Court 
concluded:
        In sum, none of the four factors upon which the NRC relies to 
eschew consideration of the environmental effects of a terrorist 
attack satisfies the standard of reasonableness. 
        In its decision on the PFS lease, the BIA reviewed the Ninth 
Circuit Court decision and concluded that "the court's sweeping 
rejection of the same factors NRC relied on in rejecting the State of 
Utah's contention in the PFS licensing proceedings leaves us 
distinctly unsatisfied at best that the effects of a terrorist-initiated 
event have been given adequate consideration."   

Interim storage proposals in the FY2007 Energy and Water 
Appropriations Bills
        According to a 2006 study on spent nuclear fuel storage by the 
National Research Council, "dry casks were designed to ensure 
safe storage of spent fuel, not to resist terrorist attacks."  The 
NRC has not analyzed the environmental impacts of a terrorist 
attack for any of the 42 sites for which it has granted dry cask 
storage licenses. The current proposals in the Senate and House 
FY2007 Energy and Water Appropriations bills also fail to address 
the security threats posed by dry cask storage. 
        The Senate version of the FY2007 Energy and Water 
Appropriations bill (H.R. 5427) contains an authorizing provision 
that requires states with nuclear reactors to designate at least one 
site in that state for 25-year interim waste storage, called a 
Consolidation and Preparation (CAP) facility. The House FY2007 
Energy and Water Appropriations bill (H.R. 5427) requires DOE 
to "conduct a voluntary, competitive process to select one or more 
interim storage sites" by either re-issuing Request for Expressions 
of Interest for GNEP (interim storage at the "integrated recycling 
facilities") or issuing a new Request for Proposals for interim 
storage alone. 
        There are numerous reasons why away-from-reactor storage is 
not even a temporary waste solution. First, creating away-from-
reactor surface storage sites would not meaningfully reduce the 
number of locations where high-level radioactive waste is stored, 
as long as most commercial nuclear power plants remain in 
operation for decades to come. Nuclear waste generated at nuclear 
power plants must be stored on site for at least five years to 
thermally cool and radioactively decay before it can be transported 
off site. Thus, any operating reactor will inevitably have at least 
five years' worth of irradiated nuclear fuel - approximately 100 
tons - stored on site. 
        Second, rather than reduce risks, centralized interim storage 
would increase transport risks to public health, safety, and security. 
Centralized interim storage would double the number of waste 
shipments required, and greatly increase the number of shipment 
miles to be driven, because the waste would eventually need to be 
transported from the interim site to a permanent site. According to 
a February 2006 National Academy of Sciences study on the 
transport of nuclear waste, "an independent examination of the 
security of spent fuel and high-level waste" needs to be performed 
"prior to the commencement of large-quantity shipments."  
[Emphasis added] The NAS report also concluded that "extreme 
accident conditions involving very-long-duration fires could 
compromise" waste shipping containers and advised that the U.S. 
Nuclear Regulatory Commission (NRC) do additional analyses of 
such accident scenarios. 
        Third, interim storage at DOE sites would be contrary to legal 
agreements made with States and tribes. DOE has committed to 
cleaning up these sites, not adding more pollution to them. In 
addition, DOE sites are not licensed by the NRC for commercial 
nuclear waste storage. The only exception is at the Idaho National 
Engineering Laboratory, which has a storage license limited to 
nuclear fuel debris from the Three Mile Island nuclear reactor 
accident. 
        Fourth, given the extreme difficulty faced in opening this 
country's first permanent repository, it is unlikely that additional or 
alternative repository space will be available soon. Thus, "interim" 
storage sites would become long-term "overflow parking" for 
high-level radioactive wastes with nowhere else to go. In its 
decision to reject the lease for PFS, the Bureau of Indian Affairs 
concluded that the "uncertainty concerning when the SNF [Spent 
Nuclear Fuel] might leave trust land, combined with the [Interior] 
Secretary's practical inability to remove or compel its removal 
once deposited on the reservation, counsel disapproval of the 
proposed lease." 
        Tucked into a large appropriations bill, the Senate's CAP 
provision would result in a sweeping change to the country's 
nuclear waste policy without hearings or public debate. It also 
provides an unreasonably short timeline: only 9 months to choose 
sites, potentially in all 31 states with nuclear power reactors, and a 
total of only 3ï¿½ years for siting and licensing of those sites. The 
bill also limits the scope of NEPA review to the 25-year license 
period, which is contrary to 35 years of NEPA practice and does 
not represent the actual long-term effects that could occur.   
        The bill also codifies the NRC's Waste Confidence Rule by 
concluding that a permanent disposal for the waste would be 
available "in a timely manner." As described in the section on the 
Administration's proposed Yucca legislation, codifying Waste 
Confidence would not change the reality that we do not have a 
viable, permanent solution for nuclear waste. In its decision on 
PFS, the BIA found that "The Commission's 1999 Waste 
Confidence Decision restated the 1990 prediction that a permanent 
facility might be available sometime within the first quarter of the 
21st Century, but cited no compelling additional support for that 
contention." 
        Thus far, at least four Governors, the Coalition of Northeastern 
Governors, and 10 Attorneys General have sent letters in 
opposition to the Senate provision. The National Conference of 
State Legislators, the National Association of Counties, the 
National League of Cities, and the U.S. Conference of Mayors 
have also urged that the Senate CAP provision be removed from 
the final bill.
        Moving commercial irradiated nuclear fuel to indefinite 
"interim" surface storage at DOE or other sites would simply 
create the illusion of a waste solution. Instead, the safety and 
security of waste storage at reactor sites across the U.S. should be 
improved. Away-from-reactor storage of spent fuel, as proposed in 
both the House and Senate versions of the FY2007 Energy and 
Water Appropriations bill, should be rejected. 
        So what should be done to protect the public from the threats 
posed by the current vulnerable storage of commercial spent fuel?  
Public interest groups from around the country have developed 
Principles for Safeguarding Nuclear Waste at Reactors, which are 
being released for the first time today. The Spent Nuclear Fuel On-
Site Storage Security Act of 2005, introduced in both the House 
(H.R. 4538) and Senate (S. 2099) by the Nevada and Utah 
delegations, is a good basis for incorporating these principles into 
law.  

Principles for Safeguarding Nuclear Waste at Reactors
        The following principles are based on the urgent need to 
protect the public from the threats posed by the current vulnerable 
storage of commercial irradiated fuel. The United States does not 
have a near-term solution for the permanent storage of high-level 
nuclear waste. The proposed Yucca Mountain site is unsafe for 
geologic storage of nuclear waste and the program remains mired 
in bad science, mismanagement, and yet another design overhaul. 
Even if licensed, Yucca Mountain could not legally contain all of 
the waste produced by existing reactors. Under the U.S. 
Department of Energy's unrealistically optimistic scenario, Yucca 
Mountain is not predicted to begin receiving waste until at least 
2017 and transporting waste to the site would take more than 30 
years.  Meanwhile, irradiated fuel at reactor sites remains 
vulnerable to accidents and attacks.
        The undersigned organizations' support for improving the 
protection of radioactive waste stored at reactor sites is a matter of 
security and is in no way an indication that we support nuclear 
power and the generation of more nuclear waste.
         Require a low-density, open-frame layout for fuel pools: 
Fuel pools were originally designed for temporary storage 
of a limited number of irradiated fuel assemblies in a low 
density, open frame configuration. As the amount of waste 
generated has increased beyond the designed capacity, the 
pools have been reorganized so that the concentration of 
fuel in the pools is nearly the same as that in operating 
reactor cores. If water is lost from a densely packed pool as 
the result of an attack or an accident, cooling by ambient air 
would likely be insufficient to prevent a fire, resulting in 
the release of large quantities of radioactivity to the 
environment. A low-density, open-frame arrangement 
within fuel pools could allow enough air circulation to keep 
the fuel from catching fire. In order to achieve and maintain 
this arrangement within the pools, irradiated fuel must be 
transferred from the pools to dry storage within five years 
of being discharged from the reactor.  

         Establish hardened on-site storage (HOSS):  Irradiated 
fuel must be stored as safely as possible as close to the site 
of generation as possible. Waste moved from fuel pools 
must be safeguarded in hardened, on-site storage (HOSS) 
facilities. Transporting waste to 
interim away-from-reactor storage should not be done 
unless the reactor site is unsuitable for a HOSS facility and 
the move increases the safety and security of the waste. 
HOSS facilities must not be regarded as a permanent waste 
solution, and thus should not be constructed deep 
underground. The waste must be retrievable, and real-time 
radiation and heat monitoring at the HOSS facility must be 
implemented for early detection of radiation releases and 
overheating. The overall objective of HOSS should be that 
the amount of releases projected in even severe attacks 
should be low enough that the storage system would be 
unattractive as a terrorist target. Design criteria that would 
correspond to the overall objective must include:
                 Resistance to severe attacks, such as a direct hit by 
high-explosive or deeply penetrating weapons and 
munitions or a direct hit by a large aircraft loaded with 
fuel or a small aircraft loaded with fuel and/or 
explosives, without major releases. 
                 Placement of individual canisters that makes 
detection difficult from outside the site boundary.
         Protect fuel pools: Irradiated fuel must be kept in pools for 
several years before it can be stored in a dry facility. The 
pools must be protected to withstand an attack by air, land, 
or water from a force at least equal in size and coordination 
to the 9/11 attacks. The security improvements must be 
approved by a panel of experts independent of the nuclear 
industry and the Nuclear Regulatory Commission. 
         Require periodic review of HOSS facilities and fuel 
pools: An annual report consisting of the review of each 
HOSS facility and fuel pool should be prepared with 
meaningful participation from public stakeholders, 
regulators, and utility managers at each site.  The report 
must be made publicly available and may include 
recommendations for actions to be taken. 
         Dedicate funding to local and state governments to 
independently monitor the sites: Funding for monitoring 
the HOSS facilities at each site must be provided to 
affected local and state governments.  The affected public 
must have the right to fully participate.  
         Prohibit reprocessing: The reprocessing of irradiated fuel 
has not solved the nuclear waste problem in any country, 
and actually exacerbates it by creating numerous additional 
waste streams that must be managed.  In addition to being 
expensive and polluting, reprocessing also increases nuclear 
weapons proliferation threats.

	MR. HALL.  All right.  We thank you for that.
	We will start, Mr. Wise, to ask you a question.  I understand 
that the Southern Company has indicated their interest in building 
new nuclear plants in Georgia, and as Chairman of the Georgia 
Public Service Commission, what do you think needs to happen 
with regard to the spent fuel issue in order for the commission to 
support any new nuclear construction?
	MR. WISE.  Well, there are two things, Mr. Chairman.  I thank 
you for the question.  And we have been supportive of the early 
plans for the company to start the process.  In fact, we have 
authorized some accounting order where the company can input 
their expenses, and if in fact prudently incurred will be able to 
recover them from the rate payer.  But then to the issue of storage, 
we think it is vital and Georgians have paid close to $1 billion with 
paying into the Fund and the value of the Fund and the life of with 
the expectation that we would have a national fuel repository with 
the idea in mind that it was Yucca Mountain.  And so we think it is 
vital that Yucca Mountain is opened and that Georgians get what 
they paid for.
	MR. HALL.  I thank you.  Mr. Earley, among the additional 
actions that you urged Congress to take is incorporation of features 
in the repository development plan to maintain flexibility for the 
future generations.  Why don't you just expound on that a little 
why you think that is important.
	MR. EARLEY.  Certainly, Mr. Chairman.  We believe that 
technology will change substantially over time.  If we look at the 
time frame between the passage of the Atomic Energy Act in 1954 
and today, technology has changed tremendously, and we expect to 
see tremendous changes in the future.  And we should have a 
repository that has the flexibility to take advantage of those 
technology changes to either improve the technology for storage or 
when we wake up at some point and say there is huge value in this 
fuel to pull it out and reprocess it, we need to have the flexibility to 
do that.
	MR. HALL.  I thank you.  I recognize Mr. Boucher.
	MR. BOUCHER.  Thank you, Mr. Chairman.  And let me thank 
the witnesses also for their testimony here.  Mr. Wise, let me just 
confirm your view that if we are to have interim storage at one or 
more facilities across the United States that the funding for that 
should not derive from the Nuclear Waste Fund, but should derive 
from other appropriations particularly devoted toward that purpose.  
Is that your view?
	MR. WISE.  Yes, sir, that is exactly correct.  
	MR. BOUCHER.  If we are to have interim storage, what role do 
you see the governors of the various States playing in helping to 
select sites or to comment on proposals that are made with regard 
to where the sites should be?
	MR. WISE.  Well, one of the things that we would expect was 
that the governors would play an active role in it.  I am not sure 
that they would be looking to help you select a site, but might in 
fact be opposed to additional interim sites.  Some would say that 
because of the failure to open the national repository that we paid 
for is that we have a form of interim storage in our State today at 
our nuclear sites.
	MR. BOUCHER.  We do indeed.  Let me get you to react to Mr. 
Earley's recommendation that if we are to have interim storage the 
number of sites be few, that Yucca Mountain be one, and that 
perhaps the sites be chosen through an incentive-based process 
with the idea being that interim storage would occur at the same 
places where reprocessing might occur under the global 
reprocessing initiative.  That is not the exact term.  But that there 
be incentives put forward based upon the location of these 
reprocessing sites in conjunction with interim storage.  Do you 
think that recommendation has value, and what would NARUC's 
view of that be?
	MR. WISE.  Yes, sir.  And, in fact, NARUC does take the 
position that it should be--if there are interim sites Yucca should be 
one of them, that there should be very few, and I don't believe that 
we have spoken as a group to the incentive based concept that you 
talked about on reprocessing.
	MR. BOUCHER.  What is your personal opinion?
	MR. WISE.  Personally, I am a big believer in incentive-based 
regulation and compensation to encourage the right thing to 
happen.
	MR. BOUCHER.  Mr. Earley, let me ask a couple of questions to 
you.  You have stated in your testimony that you would favor 
offsetting collections legislation.  This would be a means to assure 
the integrity for the Nuclear Waste Fund, future contributions into 
the Fund to assure that those monies are dedicated to the purpose 
for which they are intended.  That is the waste storage program.  
What is your view with respect, and what is NEI's view, with 
respect to the $19 billion that is the corpus of the Fund today based 
upon rate payer contributions that have been made since the Fund's 
inception?  Should we take steps to protect that also?
	MR. EARLEY.  Absolutely, and that has been our position that 
we should take steps to protect that and make sure that it goes for 
its intended purpose, which was for the development of a waste 
storage facility.  My comments reflected the current bill that has 
been proposed.  We certainly support that as a first step, but we 
also would support initiatives to make sure that we protect that 
corpus.
	MR. BOUCHER.  Should we while we are considering the 
Administration's bill amend it to have the protection for the $19 
billion to make sure that that money goes to its intended purpose?
	MR. EARLEY.  We certainly would support that if we thought 
that that was something that was feasible to be able to do.
	MR. BOUCHER.  Would you like to recommend some language 
to us that might help achieve that?
	MR. EARLEY.  We certainly will be prepared to do that.
	MR. BOUCHER.  Thank you, Mr. Earley.  Let me ask you also 
the question about interim storage.  I noted your support for the 
idea of interim storage, and with respect to funding for interim 
storage, do you believe that the funding should derive from the 
Nuclear Waste Fund or should we require special appropriations in 
order to finance that program?
	MR. EARLEY.  We would support using the Nuclear Waste 
Fund for interim storage on this very narrowly focused, and we 
think incremental approach that supports a move towards Yucca 
Mountain.  As I said, we support a repository at or certainly near 
Yucca Mountain which would be an obvious first step to take fuel 
there on an interim basis until the facility is ready to take the fuel.  
And then the other piece, it would be no more than two or three 
sites that would be obvious candidates for reprocessing 
technologies where you are going to have to have interim storage 
anyway before you reprocess that they would be candidates.  So if 
we are talking about two or three sites, and I agree with Ms. 
Sproat's estimates that the cost of a facility, particularly at a 
facility that already will have security and other infrastructure is 
not large.  You could pay for it with a couple days accrued interest 
on the corpus of the Nuclear Waste Fund.  But we don't support 
the broad proposals that would have 30 or more facilities that 
really would have a potential for depleting the waste fund.
	MR. BOUCHER.  So I gather from those comments, you are not 
particularly concerned about funding interim storage from the 
Nuclear Waste Fund detracting from the larger Yucca Mountain 
program for permanence.
	MR. EARLEY.  With the narrowly focused program that we 
would suggest, no, we wouldn't be concerned.
	MR. BOUCHER.  Thank you, Mr. Earley.  Thank you, Mr. 
Chairman.
	MR. HALL.  The Chair recognizes Mr. Otter for 5 minutes.
	MR. OTTER.  Thank you, Mr. Chairman.  Mr. Earley, I noticed 
in your testimony that the industry urges Congress to consider this 
interim storage.  Would the State of Michigan be willing to 
entertain a site for one of these interim storages?
	MR. EARLEY.  Well, as Mr. Wise said, Michigan already has 
interim storage.  We have four locations, three operating reactor 
sites, and one decommissioned reactor site that has interim storage.  
I can't speak for the State of Michigan but I certainly would be 
supportive, but I don't think it fits in with our proposal.  There are 
no facilities in Michigan that are obvious candidates for 
reprocessing.  We don't have a national lab.  We don't have a DOE 
facility.  So consistent with our proposal, Michigan would not be 
an obvious candidate but if we had a national lab, if we had an 
existing DOE nuclear fuel facility then I would say, yes, we ought 
to be considering that.
	MR. OTTER.  So then your group would be in favor of 
reprocessing enrichment?
	MR. EARLEY.  Yes, and we have gone on record as favoring 
reprocessing as a long-term option, but again I want to make it 
clear not as a replacement for Yucca Mountain but as a smart long-
term policy in addition to Yucca Mountain.
	MR. OTTER.  In your response to me you just indicated that you 
already have several interim storages.  How long are those good 
for?
	MR. EARLEY.  Well, I am not sure of the exact dates.  My own 
firm nuclear plant, we run out of spent fuel pool storage capacity in 
the 2009-2010 time frame.  We are currently in the design phase 
for a dry cask storage facility.  There are dry cask storage facilities 
at other nuclear plants including the decommissioned Big Rock 
Point plant.  Those facilities can be easily expanded at the existing 
facilities.
	MR. OTTER.  And have you requested a license then from--
	MR. EARLEY.  Not for our facility yet, but we will be doing that 
fairly shortly.  Given the history about two-thirds of existing 
nuclear plants have dry cask storage.  The NRC has gotten the 
licensing process down so that they move that process along fairly 
expeditiously.
	MR. OTTER.  Mr. Wise, the same question about Georgia.
	MR. WISE.  That is outside my jurisdiction on whether they 
apply for licenses or the extent that they will reach capacity.  I am 
aware of the fact and the jurisdiction falls back to the NRC and 
others, and so I am not aware of how much capacity they have left.
	MR. OTTER.  I see.  Ms. Boyd, I noticed in your testimony that 
your group did not represent at least any ideas for solving the 
problem, providing a solution.  What is the Public Citizen's 
recommendation for a permanent solution?
	MS. BOYD.  What we are recommending is a solution for the 
security concerns that we have right today.  All of the proposals 
that are on the table right now, Yucca Mountain reprocessing, 
interim storage, are all 10, 20 years away.  In terms of actually 
filling Yucca Mountain would be 41 years away.  So what we are 
talking about today is the security concerns we have about the 
waste sitting at the sites today.  To answer your question 
specifically, there is no good solution at this point for long-term 
permanent storage of nuclear waste.  We very well may need a 
geological repository, and, in fact, personally I do think we need a 
geological repository, but Yucca Mountain is not the site.
	The Department of Energy has had to change the parameters so 
many times to try to make the square peg fit into the round hole.  
And it is very clear that we will be here in another 10 or 20 years 
arguing about Yucca Mountain if we do not stop and pull out and 
stop funding Yucca Mountain and look and do a real legitimate 
scientific research project whereby we will look for another 
solution.
	MR. OTTER.  But as long as we continue to produce power with 
nuclear plants, we are going to continue to create the waste.
	MS. BOYD.  That is very true.
	MR. OTTER.  So what is the solution?  We know what you 
don't like.  Can you give us an idea of what you would like?
	MS. BOYD.  I came with a positive proactive proposal for 
dealing with the waste that we are creating today.
	MR. OTTER.  Look for another site.
	MS. BOYD.  Well, no, the positive proactive solution I came 
with today is to deal with the security concerns of the waste sitting 
at the sites that is going to remain at the sites for at least another 
couple of decades if not much longer.
	MR. OTTER.  And is your analysis then of Yucca Mountain 
already seen some security breaches or potential breaches?
	MS. BOYD.  Yucca Mountain is not licensed yet so we haven't-
-
	MR. OTTER.  If it were to be licensed under that which we now 
know, have you analyzed it well enough to know that there are 
going to be some security breaches?
	MS. BOYD.  That is immaterial to the question about whether or 
not the waste stays--
	MR. OTTER.  Well, it is still my question.  It may be immaterial 
to the question but if you are going to suggest Yucca Mountain 
isn't the answer and that we really should be focusing on security 
then what security problems do you see with Yucca Mountain?
	MS. BOYD.  The question isn't the security question.  The 
question is that Yucca Mountain is an environmentally unsound 
site so the question is not about the security concerns about a 
geological repository.  The concerns are about dealing with the 
waste, the problem that we actually have on our hands today, 
which is waste sitting at all 103 and more sites.  We have to deal 
with that problem today, and so that is what the proposal I am 
coming with to talk to you about is.
	MR. OTTER.  Well, I guess I still don't quite understand 
because it is not unusual for us as technology advances for us to 
employ that technology in ongoing construction no matter what the 
project is.  And Yucca Mountain has been a long time coming and 
a long time in process, and as our technology advances for the 
storage of waste, for the handling of waste, it doesn't seem to me 
to be inconsistent with our desire to be as environmentally safe as 
possible, and as safe as possible from a national security 
standpoint, to make those changes.  And so I don't see that 
necessarily as a suggestion that Yucca Mountain is unsafe simply 
because we have been able to accommodate and update our plans 
as the technology advances.
	MS. BOYD.  The reason that Yucca Mountain is unsafe is 
because it is scientifically shown that it cannot hold the waste for 
as long as it needs to hold.  That is a separate question, and the 
question of the waste that is at the very best case scenario as Mr. 
Sproat said today is going to be sitting in vulnerable spent fuel 
pools and in dry casks open to the air for at least, at least 11 years 
from now.
	MR. OTTER.  Well, as we know--I guess my time is up.  Thank 
you, Mr. Chairman.
	MR. HALL.  The Chair recognizes Dr. Burgess.
	MR. BURGESS.  I will be happy to yield to the gentleman from 
Idaho.
	MR. OTTER.  Well, I guess the last question that I would have 
of the Public Citizen's representative here is how does the Public 
Citizens feel then about reprocessing?
	MS. BOYD.  As I said in my statement, we oppose reprocessing.  
We should learn from past experience.  International and U.S. 
experience has shown us that reprocessing is polluting, expensive, 
and a proliferation risk.
	MR. OTTER.  We do know, if I may, if the gentleman will yield 
further, yet we do know that about 97 percent of those fuel rods 
that come out of the reactors is still good fuel and with 
reprocessing we would be able to reduce the amount of actually 
good fuel that we are burying.  And if we could reprocess down to 
where we use maybe say 50 or 60 percent of the available fuel in a 
fuel rod, we would never have to worry about finding another 
Yucca Mountain because we wouldn't be burying all that good 
fuel.
	MS. BOYD.  Actually about 3 percent of the spent fuel rod is 
plutonium so that is what you would be taking out and reusing.  
The fact is that we do not have the technology or the economics 
right at this point that reprocessing makes sense, and we have seen 
that in other countries and the examples that they have.  Japan just 
completed a reprocessing plant.  It took them $20 billion and 15 
years to build a plant that is about half the size of what we would 
need in the United States to deal with just our annual output of 
waste.
	MR. OTTER.  Thank you, Mr. Chairman.  Thank you, Mr. 
Burgess.
	MR. HALL.  The Chair now recognizes Dr. Burgess.
	MR. BURGESS.  I thank the Chairman.  Mr. Earley, if we could, 
we were talking about reprocessing.  Does it make any sense to 
stall the development of Yucca Mountain in order to allow time for 
reprocessing?
	MR. EARLEY.  Absolutely not.  We should move ahead with the 
Yucca Mountain as fast as we can, but as a country we ought to 
continue to develop reprocessing technologies because the spent 
fuel has significant value as fuel in the future.  And as fossil and 
other resources become less and less available to us, we can't 
afford to waste that kind of fuel value.
	MR. BURGESS.  I am from Texas, and we got a lot of people 
moving to Texas.  Whether we like it or not, they are going to 
come and they are going to need roads and they are going to need 
hospitals, and they are going to need electricity to run their air 
conditioners in the summer time in a big way.  So we have had 
proposals from well-thinking people who say they are going to 
build 16 new coal plants, and that has got people upset because 
what about the carbon dioxide, what about the global warming.  
We have had lots of hearings on that here.  And not to belabor that 
point, we are going to have increasing resistance to producing 
electricity that results in increased carbon in the environment.
	Texas has a lot of wind and indeed we are working to capture 
that but still under the best projections it is still single digit 
percentages that we are going to be able to develop as far as wind 
energy to provide air conditioning for all of those Yankees that are 
moving to Texas over the next 50 years.  So to what extent has the 
development of new nuclear plants--does it depend upon solving 
the spent fuel issue?  It is really a critical issue where I live.  We 
got three companies now that are asking for licensing for new 
plants.  Are they going to be able to get those licenses while we 
develop the or deal with the spent fuel issue?
	MR. EARLEY.  Progress on spent fuel is absolutely vital for 
continued progress towards new nuclear plants.  As I said before, 
as I speak with my colleagues and from my own experience that 
we have been willing to move forward and invest because we 
through progress was being made.  The work that this committee 
did last year on the Energy Policy Act was a tremendous step 
forward removing some of the barriers to new nuclear plants, but 
nuclear waste continues to be that one barrier that we need to deal 
with.  And it doesn't have to be dealt with tomorrow, but it has to 
be confidence that as a policy this country is going to move 
forward and deal with this waste problem.
	That is why passage of this bill in either this form or the 
expanded form that we have recommended would continue to give 
leaders in the utility industry confidence that the Government is 
working through these issues and therefore we ought to be 
investing our customers' money in more nuclear plants.  But you 
are absolutely right.  As a company, 70 percent of our generation is 
coal, about 10 percent of our generation is nuclear, and then we 
have hydro and natural gas generation.  But we have a team 
working on looking at new nuclear technology because we can't 
put all our eggs in the coal basket.  This country needs a diversified 
mix of energy sources and coal is going to be a part of it, but 
nuclear ought to be a big part of it going forward.
	MR. BURGESS.  Mr. Wise, if I could just ask you under what 
circumstances would it be appropriate for the Nuclear Waste Fund 
to be used to fund interim storage activities?
	MR. WISE.  Okay.  We firmly disagree with using the Fund for 
interim storage.
	MR. BURGESS.  What is happening in other countries as far as 
interim storage?
	MR. WISE.  Again, you are out of my league.  I am sorry.
	MR. BURGESS.  Mr. Earley, do you have any thoughts on that?
	MR. EARLEY.  It is a mix, but of course there is reprocessing in 
Europe and Japan.  Of course, you have to have interim storage 
before you put it through the reprocessing so it doesn't seem to be 
the issue that it is here.  People have recognized that nuclear waste 
has to be dealt with.
	MR. BURGESS.  I was with the Chairman on a trip to Sweden 
not too long ago and their interim storage is measured in centuries 
so they have apparently dealt with it in a different manner.  They 
kicked the can down the field significantly.  Thank you, Mr. 
Chairman.  I will yield back.
	MR. HALL.  Thank you, Doctor.  I think that takes care of this 
very capable panel.  We will ask you to accept our thanks for your 
preparation and for your participation here, and appreciate your 
answers and your input.  You are doing a lot of service to your 
country on a very, very important issue.  I might ask you if they 
have Public Citizen over in Europe.  Maybe that is the reason they 
are getting along so easy.
	[Recess]
	MR. BURGESS.  [Presiding]  With a change in panel and change 
in chair, we will call the hearing back to order and recognize the 
Honorable Butch Otter.

STATEMENTS OF HONORABLE C.L. "BUTCH" OTTER, A REPRESENTATIVE IN CONGRESS FROM 
THE STATE OF IDAHO; AND HONORABLE ALAN B. MOLLOHAN, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF WEST VIRGINIA

        MR. OTTER.  Thank you very much, Mr. Chairman, and thank 
you for holding this important hearing today, and thank you also, 
Mr. Chairman, for allowing me to testify.  The committee is 
considering H.R. 4377, legislation to extend the time required for 
construction of the Arrowrock Hydroelectric Project in Idaho.  You 
are going to hear opposition to this legislation when the Federal 
Energy Regulatory Commission testified on my bill because of the 
length of time since the original license was issued.  I am going to 
take the time of this committee to help them understand the need 
for this legislation and why this project should receive an 
extension.
	Let me start with a little background on the project.  It 
originally was licensed in 1989.  The licensees are small, not for-
profit, Idaho and Oregon irrigation districts.  Revenues from the 
project were to be used to offset operational costs for thousands of 
water users.  For a variety of reasons construction did not begin on 
the project within the original 6-year deadline period, so the 
irrigation districts received a legislative extension.  After that 
extension, bull trout were then listed as a threatened species under 
the Endangered Species Act.  The project was unable to meet the 
March 20, 2005, deadline for the start of construction because the 
Fish and Wildlife Service would not begin the consultation on the 
project until after it completed consultation on all the Bureau of 
Reclamation projects in the Upper Snake River Basin.  That Upper 
Snake consultation was a direct outgrowth of the requirements of 
the Snake River Water Rights Act of 2004.
	The Fish and Wildlife Service advised FERC in 2005 and 2006 
that informal consultation with the licensees was complete, and 
that the Service had received the necessary information from the 
districts to complete consultation in a short period of time.  The 
Fish and Game and Wildlife Service then requested that FERC 
initiate formal consultation.  However, FERC did not approve or 
respond.  The irrigation districts finally had everything in place 
and were on schedule to start construction last December, but the 
license once again had expired.  All they needed was a little more 
time from FERC.
	The Arrowrock Hydroelectric Project will be built at the 
existing dam and will use existing flows from the dam.  The 
project has received certification of compliance with State water 
quality standards and an Idaho water rights permit.  The project has 
been modified to reduce the impacts.  Rather than tunneling 
through the Arrowrock Dam, it will use the Bureau of 
Reclamation's new valves, there will be a smaller powerhouse 
footprint, and 10 miles of transmission lines have since been 
eliminated.  The irrigation districts have finalized a power sales 
agreement with public utilities district to take all the power from 
the plant.  They have engaged an engineer of national reputation to 
design and build the project.  Lastly, they have financing lined up 
and they are ready to go.
	The Energy Policy Act of 2005 contains several provisions that 
encourage development of projects which meet both the 
requirements of being a hydropower project built at an existing 
dam and a hydropower project that is a conduit.  In Idaho, this is 
exactly what we are trying to do with the Arrowrock Hydroelectric 
Project.  This project has been given an extension in the past and 
another is needed because of the circumstances out of the 
licensees' control.  Without this amendment, the irrigation districts 
would have to completely start the FERC licensing process over 
again.  That would be a waste of resources by the agencies 
involved as well as the irrigation districts because all of the 
required collaboration and consultation is complete and the project 
is now ready to move forward.
	Mr. Chairman, I have supporting documentation that I have 
made available to the committee and the committee staff to make 
part of this permanent record.  Thank you very much, Mr. 
Chairman.
	[The prepared statement of Hon. C.L. "Butch" Otter follows:]

PREPARED STATEMENT OF THE HON. C. L. "BUTCH" OTTER, A 
REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

        Thank you for holding this important hearing today Mr. 
Chairman, and allowing me to testify.
        The Committee is considering H.R. 4377, legislation to extend 
the time required for construction of the Arrowrock Hydroelectric 
Project in Idaho.  You are going to hear opposition to this 
legislation when the Federal Energy Regulatory Commission 
testifies on my bill because of the length of time since the original 
license was issued.  I am going to take this time to help the 
committee understand the need for this legislation and why this 
project should receive an extension.
        Let me start with a little background on the project. It 
originally was licensed in 1989.  The licensees are small, not for-
profit, Idaho and Oregon irrigation districts.  Revenues from the 
project were to be used to offset operational costs for thousands of 
water users.  For a variety of reasons construction did not begin on 
the project within the original six-year deadline, so the irrigation 
districts received a legislative extension.  
After that extension, bull trout were listed as a threatened 
species under the Endangered Species Act. The project was unable 
to meet the new March 20, 2005, deadline for the start of 
construction because the Fish and Wildlife Service would not 
begin consultation on the project until after it completed 
consultation on all the Bureau of Reclamation projects in the 
Upper Snake River Basin.  That Upper Snake consultation was a 
direct outgrowth of the requirements of the Snake River Water 
Rights Act of 2004.  
        The Fish and Wildlife Service advised FERC in 2005 and 2006 
that informal consultation with the licensees was complete, and 
that the Service had received the necessary information from the 
districts to complete consultation in a short time period. The Fish 
and Wildlife Service then requested that FERC initiate formal 
consultation.  However, FERC did not respond.
        The irrigation districts finally had everything in place and were 
on schedule to start construction last December, but the license 
once again expired.  All they needed was a little more time from 
FERC.  
        The Arrowrock Hydroelectric Project will be built at the 
existing dam and will use existing flows from the dam.  The 
project has received certification of compliance with state water 
quality standards and an Idaho water rights permit.  
        The project has been modified to reduce the impacts.  Rather 
than tunneling through Arrowrock Dam, it will use the Bureau of 
Reclamation's new valves; there will be a smaller powerhouse 
footprint; and 10 miles of transmission lines have been eliminated. 
        The irrigation districts have finalized a power sales agreement 
with the Clatskanie PUD to take all the power from the plant. They 
have engaged an engineer of national reputation to design and 
build the project.  Lastly, they have financing lined up and ready to 
go.  
        The Energy Policy Act of 2005 contains several provisions that 
encourage development of projects which meet both the 
requirements of being a hydropower project built at an existing 
dam and a hydropower project that is a conduit. In Idaho, this is 
exactly what we are trying to do with the Arrowrock Hydroelectric 
Project.
        This project has been given an extension in the past and 
another is needed because of circumstances out of the licensees' 
control.  Without this amendment, the irrigation districts would 
have to completely start the FERC licensing process over.  That 
would be a waste of resources by the agencies involved as well as 
the irrigation districts because all of the required collaboration and 
consultation is complete and the project is ready to move forward.
        Mr. Chairman, I have supporting documentation that I would 
like to ask unanimous consent to have entered into the record to 
better detail the facts I have outlined.  
        Thank you again Mr. Chairman and I hope that the committee 
will look favorably on this small but important piece of legislation.  

	MR. BURGESS.  Without objection, so ordered.  It will be made 
part of the record.
	[The information follows:]




        MR. MOLLOHAN.  Mr. Chairman, thank you, Mr. Ranking 
Member, Mr. Boucher.  Mr. Chairman, as you aware, I am seeking 
to extend the time required for the commencement of construction 
of a 100 percent privately financed hydroelectric project, an 
extension to December 31, 2007.  Mr. Chairman, this project is 
located in Grafton, West Virginia.  The Tygart Dam, which was 
constructed in the 1930s for flood control on the Monongahela 
Basin, would incorporate this project.  The dam was built with 
future hydroelectric capabilities in mind, requiring no major 
infrastructure changes to open the water flow tunnel for 
hydroelectric power.
	During the time in which the City of Grafton's Federal Energy 
Regulatory Commission's license was valid, the contractor's 
project economies were very tight and the contractor was unable to 
secure utility cooperation to make the project viable.  Those 
dynamics have now changed and the contractor, National 
Renewable Resources, is confident that more favorable market 
conditions combined with acceptable interest rates makes the 
project's economics work.  The contractor is already negotiating 
buyers for the electricity that would be produced at the proposed 
facility.
	This year, the contractor will have repaid the senior debt on 
another very successful hydroelectric project in Pennsylvania, thus 
freeing up additional capital to finance the Tygart Dam project.  
The contractor's plan is to finance the Tygart project with 
approximately 50 percent of its own capital and 50 percent with 
long term financing.  Design engineering for the project is 
advanced stages, and the contractor has already bid out the 
equipment package and construction of the project would begin 
within 10 to 20 months of reinstatement of the FERC license.  The 
contractor believes the facility could be fully operational as early 
as 2008.
	A hydroelectric facility in Grafton would provide very real 
near and long term economic boosts to the city.  Local materials, 
suppliers, and services would be utilized during the $20 million 
construction phase.  Approximately 200 construction workers 
would be employed, totaling more than $1 million in monthly 
payroll outlays during the construction period.  Once completed, 
the new hydroelectric plant would generate about $300,000 in 
annual royalty revenues for the City of Grafton, or roughly $13.5 
million over the 45-year anticipated project life.  The City of 
Grafton could expect to see royalty revenues in late 2008 or early 
2009, and could be used at the discretion of city leaders.
	The Congressional Budget Office scored S. 2028, the Senate 
companion to H.R. 4417, and found that implementing it would 
have a zero negative net effect on the Federal budget.  Mr. 
Chairman, the environmental standards have not changed since the 
initial FERC approval was granted to the City of Grafton in the 
1980s, and any re-approval by FERC will take vast amounts of 
time and money at no benefit or little benefit.  Generating 
electricity by the force of falling water is obviously a proven 
method, and one that holds as much validity now as it did centuries 
ago.  This project would be efficient to build, to operate, harms 
neither the water itself nor the quality of the environment, and it 
contributes to reducing the reliance on foreign energy, and adds to 
another grand gesture for the public good.  Thank you, Mr. 
Chairman.  Thank you, Mr. Boucher, for allowing me to appear 
here today.
	[The prepared statement of Hon. Alan B. Mollohan follows:]

PREPARED STATEMENT OF ALAN B. MOLLOHAN, A 
REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST 
VIRGINIA

        As you are aware, I am seeking to extent the time required for 
the commencement of construction for a 100% privately financed 
hydroelectric project until December 31, 2007 in Grafton, West 
Virginia.  The Tygart Dam was constructed in the 1930's for flood 
control on the Monongahela River Basin.  The Dam was built with 
future hydroelectric capabilities, requiring no major infrastructure 
changes to open the water flow tunnel for hydroelectric power, and 
simplifying its adaptive use. 
        During the time period in which the City of Grafton's Federal 
Energy Regulatory Commission's (FERC) license was valid, the 
Contractor's project economics were very tight and the Contractor 
was unable to secure utility cooperation to make the project viable.
        Those dynamics have now changed and the Contractor, 
National Renewable Resources (NRR), is confident that the more 
robust energy market that exists today, combined with acceptable 
interest rates, makes the project economics work.  The Contractor 
is already negotiating buyers for the electricity that would be 
produced at the proposed facility.  This year, the Contractor will 
have repaid the senior debt on another very successful 
hydroelectric project in Pennsylvania, thus freeing up additional 
capital to finance the Tygart Dam project.  The Contractor's plan is 
to finance the Tygart project with approximately 50 percent of its 
own capital and 50 percent with long tem financing.  
        Design engineering for the project is already in advanced 
stages, and the Contractor has already bid out the equipment 
package and completed a number of civil drawings.  Construction 
of the project would begin within 10-20 months of reinstatement of 
the FERC license and, the Contractor believes the facility could 
fully operational as early as 2008.  
        A hydroelectric facility in Grafton would provide very real 
near and long term economic boosts to the city.  Local materials, 
suppliers and services would be utilized during the $20 million 
construction phase.  Approximately 200 construction workers will 
be employed, totaling more than $1 million in monthly payroll 
outlays during the construction period.  
        Once completed, the new hydroelectric plant would generate 
about $300,000 in annual royalty revenues for the City of Grafton, 
or roughly $13.5 million over the 45-year anticipated project life. 
        The City of Grafton could expect to see royalty revenues in late 
2008 or early 2009, and could be used at the discretion of the City 
leaders.  
        The Congressional Budget Office scored S. 2028, the Senate 
companion to HR 4417, and found that implementing it will have 
ZERO NEGATIVE NET EFFECT on the federal budget.  
        The environmental standards have not changed since the initial 
FERC approval was granted to the City of Grafton in the 1980's, 
and any re-approval by FERC will take vast amounts of time and 
money at little or no benefit.  
        Generating electricity by the force of falling water is a proven 
method, and one that holds as much validity now as it did centuries 
ago.  This project would be efficient to build and operate; harms 
neither the water itself nor the quality of the environment; 
contributes to reducing the reliance on foreign energy; and adds 
another grand gesture for the public good.

 

	MR. BURGESS.  Thank you both.  The third panel then is 
excused and we will--
	MR. BOUCHER.  Mr. Chairman, let me just briefly ask one 
question.  First, let me thank our colleagues for being here today.  
Alan, all you are asking for is an extension to the end of next year 
on the license, is that right?
	MR. MOLLOHAN.  That is correct.
	MR. BOUCHER.  And, Mr. Otter, the same?
	MR. OTTER.  Mine is very much similar, Mr. Boucher. For the 
construction period is what we are asking for, and I think as I have 
pretty well outlined in giving you the background it was 
circumstances far beyond our control when the bull trout was 
licensed--or was designated an endangered species, then that 
stopped everything.  And it stopped it during our permit period 
during the period in which we were allowed to begin the 
construction, the design and the construction of the hydroelectric 
project.
	MR. BOUCHER.  Okay.  All right.  Thank you.
	MR. MOLLOHAN.  If I might add, this is a project that has not 
been viable because of market conditions and obviously the market 
conditions have changed, and with the price of fossil energy now 
this project does become viable, and what they are doing is lining 
up customers which are not finding a problem in lining up.  It is 
just an unfortunate situation that--well, in some ways for this 
project it is an unfortunate situation in that the market wasn't more 
favorable earlier, but it is now, and they are ready to go.
	MR. BOUCHER.  Both of you make your case very well.  Thank 
you.  Thank you, Mr. Chairman.
	MR. BURGESS.  I think with that we will see our fourth panel.  
Do we have Mr. Robinson?  Mr. Robinson, we welcome you to the 
committee and look forward to your testimony.  You are 
recognized for 5 minutes.

STATEMENT OF J. MARK ROBINSON, DIRECTOR, OFFICE OF ENERGY PROJECTS, FEDERAL 
ENERGY REGULATORY COMMISSION

	MR. ROBINSON.  Thank you, Mr. Chairman, and Congressman 
Boucher.  My name is Mark Robinson.  I am the Director of Office 
of Energy Projects.  We are responsible for the authorization, 
development of the record for the authorization of LNG terminals, 
natural gas pipelines, natural gas storage, and more significantly 
here today for the licensing, administration, and dam safety of 
about 1,600 hydroelectric projects across the country.  I am here to 
make comments on five bills that generally would extend the time 
frame for the start of construction relative to Section 13 of the 
Federal Power Act.
	Section 13 requires that projects start construction within 2 
years of the license issuance date or if granted by the Commission 
not to exceed one 2-year extension so there is a 4-year period 
under law that the Commission can act to allow the start of 
construction.  The Congress, however, through the years on 
different projects has extended that time period and the 
Commission has not objected when that time frame does not 
extend beyond 10 years from the time the project was licensed 
until the start of construction actually commences.  There are 
generally two policy reasons for that.  The first is that when the 
Commission does take an action to license a project, it has 
concluded that it is in the public interest to generate power from 
that site.  Ten years has generally been recognized as a reasonable 
period to allow an applicant or at this point a licensee for that 
project to take the actions necessary to get the financing, to get the 
final designs, to start construction of that project that the 
Commission has found to be in the public interest.  Where that has 
not occurred, the general policy consideration is that if they cannot 
do it in 10 years, let us give someone else the opportunity to do so, 
since it has been found to be in the public interest.
	The second policy consideration is the record that is used for 
the Commission to take those actions.  After 10 years there is a 
growing probability that the record that was developed to authorize 
that project in fact may not still stand for determinations on the 
size of the project, the economics of the project, the environmental 
consequences associated with the project.  And for those two 
reasons the Commission historically, our chairmen, have opposed 
extensions of time that go beyond 10 years.  Having said that, I 
would like to very quickly run through the five bills and give you 
my opinion on those five bills, which is fairly predictable at this 
point.
	H.R. 4417 for the Tygart Dam project would extend the start of 
the construction period to 12/31/2007 for a project that was 
licensed in 1989.  That would be a total of 18 years post licensing 
and therefore I would oppose that bill.  H.R. 4377 for the 
Arrowrock Project in Idaho would extend the start of construction 
for a 3-year period post the implementation of that bill, which date 
we cannot determine, but to date there has been 16 years past since 
the licensing of that project, and therefore I would oppose that bill.
	H.R. 971 would extend the start of the construction period for 
three projects, the Hale Project in Connecticut, where it would 
authorize the start of construction in 2007 plus two additional 2-
year periods.  That project was licensed in 1997.  If you take that 
provision and extend it out that would be a 14-year period post 
licensing and therefore I would oppose that part of that bill.  H.R. 
971 also goes to the upper and lower Collinsville Projects also in 
Connecticut.  It similarly would extend the start of construction to 
2007 plus two 2-year periods.  Both of those would be 
approximately 10 years out and therefore I do not oppose those 
provisions of that bill.
	S.176, Reynolds Creek in Alaska, would extend the start of 
construction for three 2-year periods.  That would start from the 4-
year term of the original license for a grand total of 10 years and 
therefore I would not oppose that bill.  And S. 244 for the Swift 
Creek Project in Wyoming would similarly extend the start of 
construction for three 2-year periods post the 4-year Federal Power 
Act provision for a total of 10 years.  Therefore, I would not 
oppose, but I would mention here this particular bill goes to the re-
licensing of the project.  The Commission has found in the past 
that Section 13 does not apply to the re-licensing and therefore 
there is no statutory limitation as far as the Commission is 
concerned on granting authorizations for the start of construction 
for a refurbishing of a re-licensed project, but we would not oppose 
that bill.  With that, after having run through those, I will be more 
than happy to answer any questions.
	[The prepared statement of J. Mark Robinson follows:]

PREPARED STATEMENT OF J. MARK ROBINSON, DIRECTOR, OFFICE 
OF ENERGY PROJECTS, FEDERAL ENERGY REGULATORY COMMISSION

        The Office of Energy Projects (OEP) at the Federal Energy 
Regulatory Commission is responsible for non-federal 
hydroelectric licensing, administration, and safety; certification of 
interstate natural gas pipelines; and, authorization and oversight 
over the construction, operation, and safety of Liquefied Natural 
Gas (LNG) terminals.  
	This testimony concerns H.R.4417, H.R.4377, H.R. 971, S. 
176, and S. 244, five bills, which would extend the deadlines for 
the commencement of construction for seven hydroelectric 
projects.  H.R. 4417 would extend until December 31, 2007, the 
deadline for the commencement of construction of the proposed 
Tygart Dam Project No. 7307 in  
West Virginia. H.R. 4377 would extend the deadline for 
commencing construction of the proposed Arrowrock 
Hydroelectric Project No. 4656 in Idaho.   H.R. 971 would extend 
the deadlines for commencing construction of the Hale 
Hydroelectric Project No. 11547, the Upper Collinsville Project 
No. 10822, and the Lower Collinsville Project No. 10823 in 
Connecticut.  S. 176 would extend the commencement of 
construction deadline for the Reynolds Creek Hydroelectric Project 
No. 11480 in Alaska.  S. 244 would extend the commencement of 
construction deadline for the Swift Creek Hydroelectric Project 
No. 1651 in Wyoming.  
        Section 13 of the FPA requires that construction be 
commenced within two years of license issuance and authorizes 
the Commission to extend this deadline once, for a maximum of 
two additional years.  If construction has not commenced by the 
deadline, the Commission is required to terminate the license.  
Generally, enactment of bills authorizing commencement of 
construction extensions for individual projects leaves the 
development of an energy resource in the hands of an entity that 
has shown an inability to develop a project, and therefore has not 
been recommended.  The current Commission Chairman and past 
chairmen have opposed legislation extending commencement of 
construction deadlines that would give an entity more than 10 
years to develop a project, based on the notion that allowing one 
entity that is not progressing in developing a project to control a 
hydropower site for a longer time is not consistent with the public 
interest in developing hydroelectric energy.  In addition, the record 
on which projects were originally licensed, including the 
examination of environmental and developmental issues, may be 
out of date.  To ensure that the public interest is served would 
require not simply reinstating the license and/or extending the 
deadlines for commencement of construction, but reexamining and 
updating the record.     
        Therefore, I oppose extensions for H.R. 4417 and H.R. 4377, 
and do not oppose extensions for H.R. 971, S. 176, and S. 244.  

        Mr. Chairman and Members of the Subcommittee:
	My name is J. Mark Robinson, and I am the Director of the 
Office of Energy Projects at the Federal Energy Regulatory 
Commission.  Our Office is responsible for non-federal 
hydroelectric licensing, administration, and safety; certification of 
interstate natural gas pipelines and storage facilities; and, 
authorization and oversight over the construction, operation, and 
safety of Liquefied Natural Gas (LNG) terminals.
	I appear today as a Commission staff witness speaking with the 
approval of the Chairman of the Commission.  The views I express 
at this hearing are my own and not necessarily those of the 
Commission or of any individual Commissioner.  
	Under Part 1 of the Federal Power Act (FPA), the Commission 
issues licenses to non-Federal interests authorizing the 
construction, operation and maintenance of water power projects 
on federal lands, on navigable waters of the United States, which 
utilize the surplus water or water power from a federal dam, and on 
streams over which the Congress has jurisdiction.  Licenses may 
be issued under the FPA only if, in the judgment of the 
Commission, the proposed project is best adapted to a 
comprehensive plan for the development and utilization of the 
water resources of the river basin involved for all public purposes.  
The licenses are issued for terms of up to 50 years and contain 
terms and conditions that are designed to ensure that the 
comprehensive development standard is met.
        The FPA requires that the licensee will proceed expeditiously 
with the development and construction of the proposed project 
once a license has been issued.  Section 13 of the FPA requires that 
construction of a licensed project be commenced within two years 
of issuance of the license and authorizes the Commission to extend 
this deadline once, for a maximum of two additional years.  If 
project construction has not commenced by the deadline, the 
Commission is required to terminate the license.
	I appreciate the opportunity to comment on H.R. 4417, H.R. 
4377, H.R. 971, S. 176, and S. 244.
        H.R. 4417 would (upon the licensee's request and subject to 
the good faith, due diligence, and public interest requirements of 
section 13, and the Commission's procedures) require the 
Commission to extend until December 31, 2007, the deadline for 
the commencement of construction of the proposed Tygart Dam 
Hydroelectric Project No. 7307 and, if necessary, to reinstate the 
project license.
        H.R. 4377 would require the Commission to extend for a three-
year period beginning on the date of enactment of the bill, the 
deadline for commencing construction of the proposed Arrowrock 
Hydroelectric Project No. 4656, and, if necessary, to reinstate the 
project license.
        H.R. 971 concerns three hydroelectric projects.  First, H.R. 971 
would require the Commission to extend until May 30, 2007, the 
deadline for commencing construction of the proposed Hale 
Hydroelectric Project No. 11547 and (upon the licensee's request 
and subject to the good faith, due diligence, and public interest 
requirements of section 13, and the Commission's procedures 
thereunder) to issue two additional two-year extensions of the 
construction deadline.  The bill would also require the Commission 
to reinstate the project license.  H.R. 971 would also require the 
Commission to extend until May 30, 2007, and (upon the 
licensee's request and subject to the good faith, due diligence, and 
public interest requirements of section 13, and the Commission's 
procedures thereunder) to issue two additional two-year extensions 
for the commencement of construction deadlines for the 
Collinsville Upper Hydroelectric Project No. 10822 and the 
Collinsville Lower Hydroelectric Project No. 10823 on the 
Farmington River, in Hartford County, Connecticut.
        S. 176 would authorize the Commission to extend the 
commencement of construction deadline for the Reynolds Creek 
Hydroelectric Project No. 11480 for three two-year periods beyond 
the date that is four years after the date of issuance of the project 
license.
        S. 244 would authorize the Commission to extend the 
commencement of construction deadline for the Swift Creek 
Hydroelectric Project No. 1651 for three two-year periods beyond 
the date that is four years after the date of issuance of the project 
license.
 	As a general matter, enactment of bills authorizing or requiring 
commencement of construction extensions for individual projects 
leaves the development of an important energy resource in the 
hands of an entity that has shown an inability to develop a project, 
and therefore has not been recommended.  The last several 
Chairmen of the Commission have had a policy of opposing 
legislation extending commencement of construction deadlines that 
would allow an entity more than 10 years to develop a project, 
based on the notion that allowing one entity that is not showing 
progress in developing a project to control a hydropower site for a 
greater length of time is not consistent with the public interest in 
developing clean, renewable hydroelectric energy.  
	In addition, the record on which projects were originally 
licensed, including the examination of environmental and 
developmental issues, may be out of date in various respects.  To 
ensure that the public interest is served would require not simply 
reinstating the license and/or extending the license timeframes for 
commencement of construction, but reexamining and, as 
necessary, updating the record.
In view of these considerations, I will comment on each of the 
bills in more detail below.

H.R.4417
	H.R. 4417 would authorize the Commission to reinstate the 
license and extend the deadline for the commencement of project 
construction for the Tygart Dam Project No. 7307, located in West 
Virginia, until December 31, 2007.   
	The Tygart Dam Project was licensed on September 27, 1989, 
to the City of Grafton, West Virginia (Grafton).  The license gave 
Grafton two years from the issuance date, as permitted by Section 
13, to start construction - that is, until September 27, 1991.  On 
December 17, 1990, the Commission issued partial stays of the 
licenses for the Tygart Project and 11 other projects in the Ohio 
River Basin, pending resolution of judicial appeals of the 
Commission's licensing orders.  On April 16, 1992, after the 
orders were affirmed, the Commission issued an order lifting the 
stays.  
	On November 4, 1992, pursuant to a request by Grafton, the 
Commission extended the deadline for commencement of 
construction to April 15, 1995.  This represented the maximum 
period for the commencement of construction (two years plus one 
two-year extension) that the Commission could grant under FPA 
section 13.    
        Subsequent legislation enacted as Public Law No. 104-246 
directed the Commission to issue up to three additional two-year 
orders granting further extensions of time to commence and 
complete construction.  After the Commission did so, September 
26, 1999 became the final deadline to commence project 
construction.  On June 23, 1999, Grafton again requested a stay of 
those license conditions that require pre-construction filings 
because it was seeking another legislative extension of the 
commencement of construction deadline.  The Commission 
dismissed this request on February 9, 2000.
	Because the licensee did not commence project construction by 
September 26, 1999, the Commission on November 19, 1999 
issued a notice of probable termination of the license for failure to 
meet the commencement of construction deadline.  Grafton did not 
respond to the notice.  The Commission subsequently terminated 
the license by order issued on March 27, 2000.  
	On July 24, 2000, Grafton subsequently filed an application for 
a preliminary permit for the project, as a predicate for filing a new 
license application.  The Commission issued the requested 
preliminary permit on March 16, 2001, for the Tygart Dam Project 
No. 11851 (because the previous license had been terminated, the 
preliminary permit received a new project number).  Grafton made 
very little progress toward developing the project, and the three-
year preliminary permit expired, by its terms, on February 28, 
2004. The Commission denied a request for an extension of the 
preliminary permit term on March 28, 2003.
	On March 1, 2004, Grafton filed another application for a 
preliminary permit for the Tygart Dam Project No. 12490.  This 
application was dismissed on March 28, 2005, for failure to 
provide additional information related to Grafton's progress 
toward developing the project.  Currently, Grafton has pending 
before the Commission a third application for a subsequent 
preliminary permit for the Tygart Dam Project No. 12640.  The 
Commission also has before it a competing application for 
preliminary permit filed on September 23, 2005, by Tygart LLC 
for the Tygart Dam Project No. 12613.   
	The Tygart Project was licensed in 1989, and construction did 
not commence in the 11 years before the Commission terminated 
the license.  Under these circumstances, I do not support 
reinstatement of the license or further extension of the 
commencement of construction deadline.  

H.R. 4377
	H.R. 4377 would provide for license reinstatement, if 
necessary, and extend the deadline for the commencement of 
project construction for the Arrowrock Project No. 4656, located in 
Idaho, for a three-year period from the date of enactment of the 
legislation.  The Arrowrock Project was licensed on March 27, 
1989, to the Boise-Kuna Irrigation District, the Nampa & Meridian 
Irrigation District, the New York Irrigation District, the Wilder 
Irrigation District, and the Big Bend Irrigation District (Districts).  
	The license gave the Districts the maximum two-year time 
permitted by Section 13 to start construction -- that is, until March 
26, 1991.   On January 9, 1991, pursuant to Section 13, the 
Commission granted the Districts' request for the one additional 
two-year extension to commence construction permitted by the 
statute, thereby extending the deadline for commencement of 
construction to March 26, 1993.   
	Section 1701(c) of the Energy Policy Act of 1992 subsequently 
authorized the Commission to extend the deadline for 
commencement of construction of the project for an additional six 
years, until March 26, 1999.  The Commission granted this 
extension. 
	On March 23, 1999, three days prior to the expiration of the 
extended deadline, the Districts requested a stay of the 
commencement of construction and compliance deadlines, while 
they sought Congressional legislation permitting further extensions 
of the construction deadline.  The Commission denied that request, 
and on May 19, 1999, issued an order noticing probable 
termination of the license for failure to meet the commencement of 
construction deadline.  
	In June, 1999 legislation was introduced in the Senate (S. 
1236) authorizing a further extension of the Section 13 deadline for 
the project until March 26, 2005.  Former Commission Chairman 
James Hoecker submitted written testimony to the Senate Energy 
and Natural Resources Committee on July 28, 1999 stating that 
because this bill would extend the construction commencement 
date beyond 10 years from the issuance date of the project license, 
he did not support its enactment.  
	This legislation, which was subsequently enacted and signed 
into law in October, 2000 as Public Law No. 106-343, authorized 
the Commission, upon the Districts' request, to reinstate the 
license, if necessary and, to further extend the deadline for 
commencement of construction for three consecutive two-year 
periods, to take effect on the date of the expiration of the last 
extension issued by the Commission (i.e., as of March 26, 1999).  
	As requested by the Districts, the Commission thereafter 
granted three extensions, making the new final deadline for starting 
construction March 26, 2005.
	On March 25, 2005, the Districts filed a request for a stay of 
the license, and to backdate the stay for 120 days to allow them 
time to comply with license articles containing requirements that 
must be completed before start of construction.  
	On May 27, 2005, the Commission denied the request for stay 
of license and, in the same order, issued notice of the probable 
termination of the project license.  The Commission denied 
rehearing by order issued September 1, 2005.    
	The Arrowrock Project was licensed in 1989, and construction 
did not commence in the 16 years before the Commission gave 
notice of probable license termination.  Under these circumstances, 
I do not support further extension of the commencement of 
construction deadline.

H.R. 971 
	H.R. 971 concerns Projects Nos. 10822, 10823, and 11547.  
First, H.R. 971 would require the Commission to extend until May 
30, 2007, the deadline for commencing construction of the 
proposed Hale Project No. 11547, and to issue two additional two-
year extensions of the construction deadline.  
	In 1997, the Commission issued Summit Hydropower, Inc., a 
license for the Hale Project, to be located on the Quinebaug River, 
in Windham County, Connecticut.  The City did not commence 
construction within the two-year period specified in the license, or 
within the additional two-year period which it requested and the 
Commission granted.  Consequentially, by letter dated May 2, 
2002, the Commission notified Summit of the probable termination 
of the license.  By letter dated August 9, 2002, Commission staff 
notified the licensee that it would not take further action to 
terminate the license pending action on legislation to extend the 
construction deadline.
	The license for the Hale Project was issued nine years ago. The 
required extensions of the commencement of construction deadline 
could move that deadline to May 30, 2011, almost 14 years after 
the project license was issued.  I therefore do not support the bill in 
this respect.  
	H.R. 971 would also require the Commission to extend until 
May 30, 2007, and to issue two additional two-year extensions for 
the commencement of construction deadlines for the Collinsville 
Upper Hydroelectric Project No. 10822 and the Collinsville Lower 
Hydroelectric Project No. 10823 on the Farmington River, in 
Hartford County, Connecticut.  
	The Commission issued licenses to Summit Hydropower for 
the Collinsville Upper and Lower Projects on February 23, 2001.  
Summit did  not commence construction of the projects during the 
two-period provided in the license, or during the two-year 
extension, which expired February 23, 2005, granted by the 
Commission.
	The extensions required by H.R. 971 would extend the 
commencement of construction deadline for the two projects to 
May 30, 2011, only a few months more than 10 years after the 
project licenses were issued.  Because the extensions would be so 
close to 10 years from the date of license issuance, I do not oppose 
H.R. 971 with respect to the Collinsville Projects.  

S. 176
	S. 176 would authorize the Commission to extend the 
commencement of construction deadline for the Reynolds Creek 
Hydroelectric Project No. 11480 for three two-year periods beyond 
the date that is four years after the date of issuance of the project 
license.
	On October 24, 2000, the Commission issued Haida 
Corporation a license for the proposed Reynolds Creek Project, to 
be located on Prince of Wales Island, Alaska.  Haida did not 
commence construction during the two-year period provided in the 
license, or during the two-year extension, which expired October 
24, 2004, granted by the Commission.
	The extensions authorized by S. 176 could extend the 
commencement of construction deadline until precisely 10 years 
after the project licenses were issued.  Moreover, the bill would 
authorize, but not require, the Commission to grant the extensions.  
Therefore, I do not oppose S. 176.  

S. 244
	S. 244 would authorize the Commission to extend the 
commencement of construction deadline for the Swift Creek 
Hydroelectric Project No. 1651 for three two-year periods beyond 
the date that is four years after the date of issuance of the project 
license.
	On December 19, 1997, the Commission issued Swift Creek 
Power Company a new license for the existing, non-operating 1.5- 
megawatt Swift Creek Project, located on Swift Creek, in Lincoln 
County, Wyoming.  Rehabilitation of the upper development 
consists of adding one-foot stop logs to the upper dam, replacing 
the penstock, and refurbishing the powerhouse and adding two 
generators.  Rehabilitation of the lower development consists of 
dredging the lower dam, installing a 2,000-foot-long penstock, 
building a powerhouse with 2 generators, and a new transmission 
line.  The project occupies 20 acres of federal lands within the 
Bridger-Teton National Forest.  
	The original deadline in the license for commencement of 
construction, December 18, 1999, was, at the licensee's request, 
extended to December 18, 2001.  Swift Creek did not commence 
construction during the two-year period provided in the license, or 
during the two-year extension, which expired December 18, 2001, 
granted by the Commission.  The licensee did not request any 
further extensions of the deadline.  
	On November 29, 2002, Swift Creek and the Town of Afton, 
Wyoming, filed a joint application to transfer the license from 
Swift Creek to Afton.  In response to the notice of the application, 
the U.S. Forest Service filed on February 28, 2003, a motion to 
intervene in the transfer proceeding, and commented that it 
supported the transfer if it facilitated either placing the project back 
into operation or removing the project works from National Forest 
lands and restoring the lands.   Action on the transfer remains 
pending.  
	The Commission interprets the deadlines in section 13 as 
applying only to an original license, authorizing initial construction 
of a project.  Project No. 1651 was in existence when the project 
was issued a new (or relicense) license in 1997 so, -- although 
refurbishment of damaged project works would entail substantial 
new construction -- by the Commission's interpretation, the 
licensee has not failed to meet a statutory commencement of 
construction deadline.  As a policy, the Commission has included 
construction deadlines when it authorizes licensees to perform 
major project renovations or to install additional new capacity 
because it is in the public interest to have construction proceed 
expeditiously.  
	I note that while the Project No. 1651 licensee is not subject to 
Section 13 of the FPA, the Commission has rarely given a licensee 
more than 10 years to commence new construction at an existing 
project. 
	The extensions authorized by S. 244 could extend the 
commencement of construction deadline until precisely 10 years 
after the project license was issued.  Moreover, the bill would 
authorize, but not require, the Commission to grant the extensions.  
Therefore, I do not oppose S. 244.

Summary  
	As I have indicated, I oppose extensions for H.R. 4417 and 
H.R. 4377, and do not oppose extensions for H.R. 971, S. 176, and 
S. 244.  
        I appreciate the opportunity to present my views to the 
Subcommittee.  Thank you, and I will be happy to answer any 
questions you may have.
	MR. OTTER.  [Presiding]  As a chairman, I think I will begin 
the questioning.  Mr. Robinson, you said under your two 
conditions for extending licenses one was a 10-year period and the 
other one was obviously the economic conditions.  Yet I think you 
heard the testimony from my colleague from West Virginia that 
under the Tygart Project, it was indeed their economic analysis that 
said it was now a viable economic project and so that is why 
because of the increased cost in energy that now they wanted to go 
forward with that project.  The 10-year period, obviously they have 
updated their considerations.  They have updated the fact that they 
are going to tunnel through that dam and to put in the penstock, 
and also to make it a viable project.  So my question would come 
back is if we are so rigid on that 10-year period or that economic 
consideration has not FERC ever extended beyond 10 years a 
project for either one of those reasons?
	MR. ROBINSON.  We actually are not by law permitted to 
extend beyond one 2-year extension on the Federal requirement to 
start construction within 2 years.  We have, however, where 
Congress has specially authorized us to grant extensions beyond 
that, we in fact have.  I can't remember the project now but we had 
two sets of extensions by Congress, one for 6 years that added to 
the 10, and then a second one which I believe was for another 5 
years, so we certainly have extended projects beyond the 10-year 
period where Congress was giving us that authority.
	MR. OTTER.  And both of those have been successful?
	MR. ROBINSON.  No.  There was only one that I remember, and 
it was on the same project and that project is still not constructed.
	MR. OTTER.  The other one that went forward then was 
successful?
	MR. ROBINSON.  There was only one that actually went beyond 
the 10-year period where Congress designated a period beyond that 
time frame.
	MR. OTTER.  Now of course on the Arrowrock Project it seems 
pretty obvious to me that it was circumstances beyond the 
licensee's control.  It wasn't some environmental consideration 
that they hadn't completed an EIS or an endangered--it was 
because of the bull trout and the Endangered Species Act that 
delayed that entire process, and then when FERC at a later time 
was asked to go forward there was no response from FERC 
themselves.  So circumstances beyond the licensee's control that 
allowed both of those permits to exhaust their time period would 
seem to me that FERC would be able to give the consideration, 
number one, because of its own inaction, and, number two, 
because of the action of another Federal agency beyond the 
licensee's control, I want to repeat, that should give it additional 
consideration.
	MR. ROBINSON.  During the course of the 16 years that we have 
been interacting with the licensees for this project and the 
agencies, there have been numerous explanations for why the 
project was not going forward, bull trout certainly being one of 
them and being prominent here more recently.  There are differing 
views on where the ball laid on the bull trout issue.  Was it with the 
Fish and Wildlife Service, was it with the licensee, was it with 
FERC, and it all goes to what information was available about the 
project and what information the different agencies required.
	The Commission has reviewed this twice.  They reviewed that 
issue very specifically on how the bull trout issue was handled by 
the Commission staff and under the laws that we have to operate 
under, and at this point has not accepted a request to stay that 
license, which is one of the things that the Commission has done 
where there are conditions beyond the control of the licensee and 
the time period is running out.  They have stayed the license and 
effectively stopped the clock on even the 2 plus 2 years but 
certainly within the 10 years.  And I believe on Arrowrock they 
actually did stay that project for a period of time as well.
	MR. OTTER.  Well, part of that project, the stay on that project 
came about because of the old antiquated valves that were in there.  
In order to complete the hydro project the Army Corps or the 
BOR--
	MR. ROBINSON.  It is the Bureau of Reclamation.
	MR. OTTER.  Yeah, the BOR had to install the new valves 
which then gave it the capacity for the hydro capability, and that 
was started in 2002 and completed in 2004 so why wouldn't they 
be granted credit for those 2 years plus the 2 years under the bull 
trout consideration?
	MR. ROBINSON.  Well, again, given that there has been 16 
years on this project, a number of different issues have held it up 
over those 16 years.  And there is another aspect to this project, 
should this go forward and the bill be passed and the Commission 
does grant the extension to start construction, the project that is 
now being contemplated, which has been under discussion with the 
Fish and Wildlife Service, is not a project that the Commission has 
authorized.  So there would be a review of this new project which 
on its surface clearly has advantages associated with it in terms of 
its footprint and how it would go through the same and all those 
things, but there are issues associated with the project.
	The record that we have currently doesn't match the project 
that is being pursued, so we would go back and look at it whether 
it would be an amendment to the license or however we would 
handle it.  The Commission would have to spend some time 
looking at it, and we would work out the bull trout issue as well 
during that period.
	MR. OTTER.  Okay.  Thank you very much, Mr. Chairman.  I 
recognize the Ranking Member.
	MR. BOUCHER.  Mr. Chairman, I really don't have any 
questions of Mr. Robinson.  I want to thank him for stating very 
clearly the position of the FERC on this matter, and I think you 
have propounded to him all of the relevant questions.  Thank you, 
Mr. Chairman.
	MR. OTTER.  Okay.  Thank you.  Then you are excused, sir.  
Thank you very much for your time.  I appreciate it.  Without any 
further business, the committee is now retired.
	[Whereupon, at 4:52 p.m., the subcommittee was adjourned.]


RESPONSE FOR THE RECORD OF THE HON. EDWARD F. SPROAT, III, 
DIRECTOR, OFFICE OF CIVILIAN RADIOACTIVE WASTE 
MANAGEMENT, U.S. DEPARTMENT OF ENERGY

QUESTIONS FROM CHAIRMAN BARTON

Q1. Are you familiar with the interim storage provision in the 
Senate's Energy & Water Appropriations bill?  If that were to 
become law, what resources would you need to meet those 
requirements without detracting from progress on the 
repository?  How would that compare to the resources needed 
to meet the requirements of H.R. 5360, the Administration's 
legislative proposal?

A1.	The Department has not estimated what resources would be 
necessary to implement the interim storage provisions in the 
Senate's Energy and Water Appropriations bill, but believes 
additional resources would be required to license, manage, 
operate and construct the interim storage facilities even if the 
Department primarily utilized existing facilities at reactor sites.  
Implementation of the provisions in the Senate's bill would not 
reduce the resources needed to license, construct, and operate 
the Yucca Mountain site.  To the extent resources are limited, 
work on interim storage could delay completion of the 
repository.


Q2. The Nuclear Waste Policy Act limits the size of the Yucca 
Mountain repository to 70,000 metric tons, but what is the 
physical capacity?  What are the scientific and technical 
factors that would determine the maximum capacity? 

A2. The Department has not determined a maximum physical 
capacity for the site but believes that, at a minimum, the 
estimated amounts of spent nuclear fuel expected to be 
generated by the current fleet of commercial reactors 
throughout their life time and all existing Defense spent 
nuclear fuel and high-level waste could be disposed of at 
Yucca Mountain.  The maximum technical capacity of the 
Yucca Mountain repository is dependent on the physical 
characteristics of the areas of the site that have not yet been 
thoroughly evaluated, as well as the radionuclide content, 
volume, and form of materials to be disposed.  


Q3. The Electric Power Research Institute conducted a preliminary 
analysis of the maximum disposal capacity in a Yucca 
Mountain repository this spring.   This analysis suggested that 
the repository could hold between 4-9 times the current 
legislated limit if expanded and redesigned.   Has DOE 
reviewed this analysis and are you aware of any other studies 
regarding the potential capacity for the repository?

A3. The Department is aware of but has not reviewed the Electric 
Power Research Institute estimates.  The Department is not 
aware of any other studies regarding the potential capacity of 
the repository at this time.  


Q4. If interim storage was authorized by Congress, would it make 
operational sense to move used fuel in proximity to the 
planned repository?  Why?

A4. Yes, if authorized by Congress, it would make operational 
sense for interim storage facilities to be near the planned 
repository to avoid additional transportation of waste to the 
repository.  The advantages of consolidating spent nuclear fuel 
at the repository site prior to permanent emplacement would 
be the avoidance of multiple transportation campaigns and the 
security of a single Federal site in a remote desert 
environment.


Q5. Why are the provisions of Resource Conservation and 
Recovery Act (RCRA) unnecessary for the Yucca Mountain 
project?

A5. The requirements for containment of spent nuclear fuel 
imposed by the Nuclear Regulatory Commission (NRC) are 
considerably more stringent than any standards that might be 
imposed under the Resource Conservation and Recovery Act 
(RCRA).  Specifically, NRC requires the use of NRC certified 
containers to transport, store and dispose of spent nuclear fuel 
and the permanent isolation in a deep geological repository in 
a manner that limits potential radiological exposures to no 
more than 15 mrems annually over a 10,000 year period.  
Passage of the Administration's proposal would avoid a 
duplicative regulatory structure, by making the NRC the only 
regulatory authority for the repository facility.


Q6. Why would it be appropriate to require DOE to submit details 
on only the surface facilities needed for initial operations in the 
license application?  

A6. NRC regulations require DOE to submit details on both 
surface and sub-surface facilities with its initial license 
application which DOE intends to do.  During the life of the 
repository operations, the Program plans on additional surface 
facilities to handle additional amounts of spent nuclear fuel 
and high-level waste.  The Administration's legislative 
proposal clarifies that DOE need not include these additional 
surface facilities in its initial license application.  The proposal 
does not eliminate the need for NRC to approve the 
construction and operation of these additional facilities at the 
appropriate time. 


Q7. What are the advantages to developing site infrastructure prior 
to receiving a construction authorization from NRC?  What are 
the drawbacks?  

A7. Site infrastructure improvements are necessary to maintain 
safety and the protection of workers, regulators, and visitors.  
Infrastructure upgrades will enhance safety and enable DOE to 
safely continue ongoing operations, scientific testing, and 
routine maintenance.  Moving forward with the necessary 
safety upgrades and infrastructure would significantly facilitate 
the timely opening of the repository.


QUESTION FROM REPRESENTATIVE ALLEN


Q1. Mr. Sproat, an important issue to me that you did not discuss is 
the so-called "clean canistered" program developed under the 
watch of your predecessor Acting Director Golan.  As I 
understand it, this program envisions the development of new 
transportation, aging and disposal, or TAD, canister systems 
that DOE would utilize in meeting its spent fuel acceptance 
obligations.  

I have concerns with DOE's TAD concept in light of the 
impact that it could have on your ability to meet your spent 
fuel acceptance obligations for contract holders, such as Maine 
Yankee, who have undergone decommissioning and are 
utilizing existing, NRC licensed dual purpose storage and 
transportation systems.  Further, so called "dead plants" are 
decommissioned and therefore do not have any remaining 
infrastructure within which to make transfers of waste from 
existing licensed dual purpose canisters to new canisters.


Q1(a).	What role do you envision for the TAD system in the new 
program plan and schedule you have laid out for the 
Committee?

A1(a).	The transport, aging, and disposal (TAD) system is a vital 
component of the new Program plan and schedule.  The 
license application will reflect the use of the TAD system 
and the repository is being designed to reflect the use of the 
TAD system as the primary mechanism for accepting 
commercial spent nuclear fuel.  The TAD concept will 
significantly simplify spent nuclear fuel handling 
operations at the repository.  Under this approach, most 
spent nuclear fuel will be packaged for disposal by the 
utilities.  This approach offers the advantage of having 
those who know most about the fuel, the generators, 
responsible for canisterization and packaging.  This 
approach will take advantage of commercial reactor sites 
with existing capability and spent nuclear fuel handling 
expertise.  Thus, it will limit the need to build new 
equipment and train operators for a capability that already 
exists in the private sector.  The Department has been 
working with industry to develop the performance 
specifications for canisters that can be transported, aged, 
and disposed of successfully within the waste management 
system.  Also, the facilities needed to support the handling 
of TAD canisters at Yucca Mountain will be fewer, less 
complex, and more efficient.


Q1(b).	Are you planning to develop surface facilities at the Yucca 
Mountain site that are capable of receiving material 
transported to the site in existing dual purpose technologies 
as well as TAD systems? Will these facilities be the same 
for both existing and future TAD technologies? If these 
facilities are not the same and one is to be phased in after 
the other, which gets built first under your current thinking 
and what are the relative time frames you are looking at for 
their construction?

A1(b).	The repository surface facilities are being designed to 
include the capability of receiving material transported to 
the site in existing dual purpose technologies, including 
those currently in use at shutdown reactors sites, as well as 
TAD systems.  Different facilities will be needed for the 
existing dual purpose technologies and the TAD systems.  
The dual purpose canisters will require opening and 
repackaging in waste packages licensed for disposal in a 
repository.  The benefit of the TAD system is its ability to 
be disposed of directly in the repository with minimal 
packaging steps.  The opening and re-packaging of spent 
nuclear fuel contained in dual purpose technologies will 
require a wet handling capability that the TAD system does 
not require, and as a result, a separate building will be 
utilized that includes a spent nuclear fuel handling pool.  
The Department is planning on the construction of the 
facilities to receive TAD canisters early in the repository 
construction schedule, and the facilities to open dual 
purpose canisters later.  

Q1(c).	Why do we need a new canister system?  Is there any 
reason that existing NRC licensed dual use canisters are not 
acceptable for transportation and storage at Yucca 
Mountain?

A1(c).	The Department has elected to proceed with a primarily 
TAD based system for the reasons set forth in A1(b) above. 


Q2.	I am very concerned that the DOE might be headed down a 
path that would penalize, rather than reward, those facilities, 
especially single unit decommissioned sites, that have invested 
in technologies to safely and responsibly store and manage 
their spent fuel inventory. The Nuclear Waste Technical 
Review Board has raised "an overarching concern" that the 
existing litigation between the DOE and utilities "is a 
significant impediment to the technical resolution of key 
issues" relating to spent fuel acceptance and management 
leading to disposal. What assurances can you give us that you 
will make it a high priority to actively seek a realistic 
resolution of these issues? Will you commit to working with 
me and other interested Members of this Committee to seek 
resolution of these issues?

A2.	The Department believes that, notwithstanding the ongoing 
litigation, meaningful technical discussions can and do take 
place.  This was demonstrated by recent technical interactions 
with the industry on the development of the TAD system 
performance requirements.  The Government has also been 
actively negotiating settlements and has reached a settlement 
agreement with companies representing over 20% of the 
nuclear industry.  It is to the advantage of both parties to seek a 
settlement agreement and we fully expect additional 
settlements to be negotiated.  I would welcome the opportunity 
to work with you and other interested Committee Members to 
resolve these issues.



RESPONSE FOR THE RECORD OF LUIS A. REYES, EXECUTIVE 
DIRECTOR FOR OPERATIONS, U.S. NUCLEAR REGULATORY 
COMMISSION


October 17, 2006



The Honorable Ralph M. Hall
Chairman, Subcommittee on Energy and
 Air Quality
Committee on Energy and Commerce
Washington, D.C.  20515

Dear Mr. Chairman:

The Nuclear Regulatory Commission appeared before the 
Subcommittee on Energy and Air Quality on September 13, 2006.  
From that hearing, you forwarded questions that were submitted 
for the hearing record.  The responses to your questions are 
enclosed.  If I can be of further assistance, please do not hesitate to 
contact me.

Sincerely,

	/RA/


Rebecca L. Schmidt, Director
Office of Congressional Affairs

Enclosure:
As stated	

cc: Representative Rick Boucher

RESPONSE TO THE HONORABLE JOE BARTON

QUESTION 1.	
	
You state that the Commission has certified a number of 
package designs for the transport of nuclear fuel.  Does the 
Commission have concerns about the Department's proposal 
for new transport, aging and disposal canisters (TADs) for fuel 
already in NRC approved transportation packages?  Are there 
safety concerns and does it make sense to repackage the fuel 
into TADs, especially at decommissioned sites that no longer 
have spent fuel pools available in which to facilitate the 
transfer?

ANSWER.	

The Department of Energy (DOE) has informed us that it plans to 
develop the performance specifications for the transport, aging and 
disposal canisters (TADs) design by late calendar year 2006.  To 
date, neither DOE nor any NRC power plant licensee has proposed 
packaging or repackaging fuel into TADs.  Therefore, NRC has not 
taken a position on the logistical approach regarding use of the 
specific TADs contemplated by DOE.  DOE has advised the NRC 
staff that it is considering, in their design of the repository, the 
capability to receive spent fuel in non-TAD packagings and to 
repackage spent fuel into TAD canisters at Yucca Mountain.  If 
DOE's license application has such a proposal, the NRC staff will 
review it.  We would note, however, that in a letter to Dr. Margaret 
Chu, Director, Office of Civilian Radioactive Waste Management 
dated February 20, 2004, the NRC stated, "The NRC believes that 
NRC-approved dual-purpose casks can be used to transport spent 
fuel to the potential Yucca Mountain repository.  In addition, NRC 
is currently permitting decommissioning power reactor facilities to 
demolish their spent fuel pools after all spent fuel is loaded in 
NRC-certified dual-purpose storage casks.  Obviously, it would be 
preferred, for safety as well as economic reasons, not to re-pack 
the fuel loaded in these casks.  Thus, early resolution of cask 
selection and cask certification is important to the NRC's 
regulatory activities." [Emphasis added]  This continues to be 
NRC's position on this matter.  As noted above, DOE has advised 
the NRC staff that it is considering, in their design of the 
repository, the capability to receive spent fuel in non-TAD 
packages and to repackage spent fuel into TAD canisters at Yucca 
Mountain.  This would clearly be the preferred solution for loaded 
dual-purpose casks at NRC-licensed sites, particularly 
decommissioned sites.


QUESTION 2.	

With respect to preparations for a repository license 
application, how many people has the NRC hired in the last 
two years for this project and how many does it expect to hire 
in the next two?  How much of the NRC's annual 
appropriation for High Level waste management has it spent 
over this and last year and how much has it and will it carry 
over to next year?

ANSWER.

From 102 positions in FY 2004, the number of NRC HLW staff 
decreased by 11 positions in FY 2005.  With the delay in the 
receipt of a license application, the number of NRC HLW staff 
positions remained level throughout FY 2005 and FY 2006.  The 
number of positions is projected to remain nearly the same in FY 
2007 (FY 2008 projections are not included in our response, since 
the FY 2008 budget is currently with the Office of Management 
and Budget).

In FY 2005, the NRC was appropriated $68.5 million from the 
Nuclear Waste Fund (NWF).  The agency obligated $46 million 
and had an unobligated carryover of $23.7 million, of which 
$1.2 million was from prior year appropriations.  In FY 2006, the 
NRC  was appropriated $45.7 million from the NWF, of which 
$43.7 million was obligated.  At the end of FY 2006, the agency 
had $25.7 million in prior year NWF appropriations that remained 
unobligated.  It should be noted that the unobligated carryover 
amount is a cumulative total of all prior-year NWF appropriations.




RESPONSE FOR THE RECORD OF THE HON. STAN WISE, CHAIRMAN, 
GEORGIA PUBLIC SERVICE COMMISSION, ON BEHALF OF NATIONAL 
ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS

The Honorable Joe Barton

1.	Does it make sense to stall the development of Yucca 
Mountain in order to allow time for reprocessing to be 
developed and implemented?

Mr. Chairman, I see the development of a repository as 
largely independent of a future decision to shift to a 
reprocessing scheme for spent fuel management. First, 
whether spent nuclear fuel is reprocessed or not, there will 
remain some highly radioactive waste products of 
reprocessing-as I understand it from the experts and 
DOE-that will require disposal in an underground 
repository. Plus, there is some defense high-level 
radioactive waste for which disposal is required and, to my 
knowledge, which is not suitable for reprocessing. 
Additionally, earlier this year when the GNEP initiative 
was first introduced, I understood Deputy Energy Secretary 
Clay Sell to say that spent fuel that had been out of the 
reactor for more than 15 years may not be a candidate for 
reprocessing. If this is the case, by the time the government 
has reprocessing fully operational, it would appear that 
there will be a large amount, of spent fuel that will have 
been out of a reactor for more than 15 years that is still in 
need of disposal and not suitable for the reprocessing 
program.

There is another consequence for the continued delay in 
moving the spent fuel to a repository-or until some away-
from-reactor interim storage is available. The lawsuits by 
the utilities for waste acceptance delay damages have yet to 
be decided, but for those that have, they provide for 
continuing government liability until the government 
eventually performs to its contractual obligation to accept 
the spent fuel.

There is no reason that I can see why the repository 
development has to be delayed because of the consideration 
to reprocess spent fuel in the future. Certainly the annual 
fee payments are not being delayed. Ratepayers are paying 
for waste disposal; the government needs to provide the 
disposal that was promised.


2.	Under what conditions would it make sense to send 
defense waste to the repository first, ahead of commercial 
spent fuel?

Mr. Chairman, actually I believe there are more reasons for 
commercial spent fuel to be moved ahead of defense waste. 
Defense waste is already presumably safely and securely 
stored. In contrast, in 36 locations the spent fuel 
accumulating at commercial reactors exceeds the storage 
capacity of the cooling pools and the utilities have had to 
build dry cask storage (for which the lawsuits seek 
damages, as mentioned before.) With the recent 
announcement that the earliest that Yucca Mountain will be 
ready to begin to accept spent fuel is 2017, I would imagine 
that more and more utilities will be seeking more and more 
dry cask storage.  That has certainly been our experience in 
Georgia, as I discuss in more detail in my response to your 
Question 4.

There are 3,800 tons of spent fuel now stored at shutdown 
reactor storage sites. I am sure that the owners of those 
shutdown reactor sites have to meet all the terms of their 
storage licenses under NRC requirements, including 
security. You don't have to be an expert in homeland 
security to conclude that shipping this spent fuel to the 
repository, whether for disposal or interim storage, is 
preferable to keeping it at these otherwise shutdown 
facilities. I know of no comparable perceived risk for 
current defense waste storage.

There seems to be no economic or security advantage to 
sending defense waste to the repository ahead of 
commercial spent fuel. The only advantage I can see-if, 
for some reason the commercial spent fuel were not ready 
for shipment-would be to have DOE demonstrate (what 
we already know, but much of the public may not) that 
nuclear waste transportation can be planned and 
implemented safely. This would help build public 
confidence (as would shipping commercial spent fuel; of 
course.)


3.	Under what circumstances, if any, would it be appropriate 
for the Nuclear Waste Fund to be used to fund interim 
storage activities?

Mr. Chairman, first, the appropriations stranglehold on the 
Nuclear Waste Fund-in which $750 million is collected in 
fees, yet only a small fraction is appropriated for its 
intended purpose-would have to be fixed. Otherwise, 
dollars for interim storage are provided at the expense of 
the repository. 

There are some expenses associated with interim storage 
that are likely to be appropriate for the Nuclear Waste 
Fund. Procurement of transportation casks and expenses of 
transferring spent fuel into them are expenses that would 
eventually be required for shipment to the permanent 
repository. The closer the interim storage site is to Yucca 
Mountain, the more the transportation costs would also 
seem fundable from the NWF. 

In terms of "cost to the government," it seems likely that 
development of a sizable central interim storage facility to 
be built and operated by DOE would be more economic 
than for the utilities to continue to build and manage more 
dry cask storage at individual reactor sites. It was that 
"economies of scale" premise that led some of the utilities 
to form the consortium Private Fuel Storage LLC, which 
seeks to build and operate a private temporary spent fuel 
storage facility in Utah. To the extent that a DOE central 
interim storage could achieve similar economies and DOE 
will have accepted title (and financial responsibility) for the 
spent fuel stored there, that would bring a halt to the federal 
liability for that fuel for the former owners' storage 
expenses. However, since the liability for those expenses is 
not against the Nuclear Waste Fund, should not the same 
source of funding be used to pay for interim storage that 
would experience a cost reduction? As you know, the 
Eleventh Circuit of the Federal Court of Appeals ruled in 
2002 that the Department of Energy could not use future 
NWF fee reductions to pay damages in the waste 
acceptance delay storage cost lawsuits (because the 
Secretary lacks the authority to make fee adjustments for 
individual utilities and because the NWPA makes clear the 
utilities are responsible for reactor-site fuel storage costs.) 
It is my understanding that the damages awarded to date 
and the settlement agreement with Exelon are being paid 
from the Judgment Fund and not the Nuclear Waste Fund. 
It follows that the Department of Energy should use other 
appropriations than the NWF for interim storage.


4.	I understand that the Southern Company has indicated 
their interest in building new nuclear plants in Georgia.  
As Chairman of the Georgia Public Service Commission, 
what do you think needs to happen with regard to the 
spent fuel issue in order for the Commission to support 
new nuclear construction?

Mr. Chairman, first and foremost, let me say that pursuant 
to the Official Code of Georgia Annotated 46-3A, all new 
supply-side capacity is identified in the utility's Integrated 
Resource Plan and subsequently must be certified by the 
Commission.  Although this certification process is not 
driven solely by the spent fuel disposal issue, this issue 
does figure into the overall certification process since the 
certification process includes decisions on type of 
generation, construction, operation and maintenance costs 
of the resource, number of megawatts needed, and when 
the capacity is needed.

Nuclear expansion has great appeal for meeting forecasted 
demand for baseload generation due to improved reactor 
technology.  New nuclear units will have advantages over 
coal such as protection from fuel price instability and no 
carbon emissions.  However, I can foresee the lack of 
certainty surrounding the spent fuel disposal problem being 
factored in to the overall certification decision.

Resolution of the spent fuel issue will figure prominently 
into the overall cost of the new unit.  It is my understanding 
that during the planning stage, it is easier to design greater 
spent fuel pool storage capacity than it is to retrofit the pool 
at the existing reactor site.  The Georgia Public Service 
Commission is especially concerned about this issue since 
as of December 2004, the costs incurred at Georgia Power 
Company's Plant Vogtle attributable to spent nuclear fuel 
storage are $8.7 million for additional racks within the 
spent fuel pool. Given the existing capacity for spent 
nuclear fuel storage at Plant Vogtle, Vogtle's storage pool 
will begin to lose its reserve capacity in the year 2015 - at 
which time Vogtle will begin to transfer assemblies to dry 
cask storage on site.  As you indicated in your question, 
Southern Company is considering the Plant Vogtle site for 
a new nuclear generating unit, so spent fuel storage and 
disposal will likely figure notably into the Commission's 
decision to certify a new nuclear unit.
    
This concern applies to siting future dry cask storage as 
well to perhaps store the entire inventory of spent fuel for 
the life of the reactor.    As of December 2004, the costs 
incurred at Georgia Power's Plant Hatch attributable to 
spent nuclear fuel storage are $77 million.  Given the 
present capacity for spent fuel storage, Hatch will reach its 
capacity of 48 dry casks in the year 2011.  Southern 
Nuclear intends to begin the expansion of the pads in 2009.  
Here in Georgia, this is a real issue that deserves serious 
consideration.

It is also my understanding that a revised waste acceptance 
"standard contract" will need to be presented as part of the 
Construction and Operation License application that meets 
the requirements of the Nuclear Waste Policy Act more 
realistically than the existing contracts.
Finally, it goes without saying that development of a 
permanent repository and providing secure, complementary 
interim storage would certainly make it easier to support 
new nuclear plants.



RESPONSE FOR THE RECORD OF ANTHONY F. EARLEY, JR., 
CHAIRMAN AND CHIEF EXECUTIVE OFFICER, DTE ENERGY 
COMPANY, ON BEHALF OF NUCLEAR ENERGY INSTITUTE


Anthony F. Earley, Jr.
Chairman and Chief Executive Officer


							DTE Energy Company
							2000 2nd Ave., Detroit, MI 48226-1279
							Tel: 313.235.8600


									


October 13, 2006



The Honorable Joe Barton
Chairman, Energy & Commerce Committee
U.S. House of Representatives
2125 Rayburn House Office Building
Washington, DC  20515

Dear Chairman Barton:

Thank you for allowing me to testify before the Subcommittee on 
Energy and Air Quality on Wednesday, September 13, 2006, 
regarding the storage and disposal policy for nuclear waste.  It is 
my pleasure to respond to additional written questions for 
inclusion in the hearing record.

The attached sheet provides my responses to your questions.  If I 
can be of further assistance, please do not hesitate to call me.  I 
appreciate the opportunity to present our comments.

					Sincerely,

					 
					Anthony F. Earley, Jr.

Attachment

cc:	The Honorable Ralph Hall
	Chairman, Subcommittee on Energy and Air Quality
	House Energy and Commerce Committee


The Honorable Joe Barton

Q1.		To what extent is the development of new nuclear plants 
dependent on solving the spent fuel issue?

A:  As I stated in my testimony, unless progress is made on nuclear 
waste issues, spending on new plants could slow and eventually 
grind to a halt.  To date, executives in the industry have been 
willing to make investments to plan for nuclear plants.  But as the 
time approaches for commitment of larger sums, more certainty is 
needed on the spent fuel issue.  If the Department of Energy makes 
visible and measurable progress on implementing a national used 
fuel management strategy, with Yucca Mountain as a critical 
component, companies will continue to move ahead, and the 
financial markets will have the necessary confidence to support 
these investments. 	


Q2.		Under what conditions would it make sense to send 
defense waste to the repository first, ahead of 
commercial spent fuel?

A:  It is important for the government to expeditiously meet its 
already overdue contractual obligations to take title to and move 
used nuclear fuel from existing plant sites.  The federal 
government could meet this obligation by consolidating storage of 
used fuel at a very few surface facilities, perhaps including one in 
Nevada.  This might be done in order to better address potential 
changes in the fuel cycle such as recycling.  Under such a scenario, 
it might make sense to consider emplacing defense waste in the 
repository first.


Q3.		Does it make sense to stall the development of Yucca 
Mountain in order to allow time for reprocessing to be 
developed and implemented?

A:  No.  Yucca Mountain will be needed in any fuel cycle we may 
ultimately adopt and we must work to meet the recent schedule set 
forth by the Department of Energy.   In addition, there is a need for 
timely disposal of both defense waste and older "legacy fuel" that 
will not lend itself to cost-effective recycling.   We should 
structure repository operations that maintain flexibility to respond 
to potential fuel-cycle developments, but we should not delay the 
program based on expectations of future developments.


Q4.		Among the additional actions you urge Congress to take 
is incorporation of features into repository development 
plans that maintain flexibility for future generations.  
Why do you believe this is important?

A:  It is very important for this nation's energy security that we 
maintain a significant role for nuclear power through the 21st 
century and beyond.   There are two reasons that flexibility in 
repository development can support this goal.   First, technological 
developments may allow us to better utilize the potential energy 
that remains in used nuclear fuel, and to enhance the capacity of 
Yucca Mountain to handle waste products. Second, while there is a 
high degree of confidence that the repository will meet or exceed 
regulatory requirements, it is prudent to monitor the facility's 
performance for an extended period to further verify that 
performance and take advantage of potential improvements in 
waste disposal techniques.
	

  Matthew L. Wald, "Big Question Marks on Nuclear Waste Facility," New York Times, February 
14, 2006.
  U.S. Department of Energy, Office of Inspector General, "Audit Report: Office of Civilian 
Radioactive Waste Management's Corrective Action Program," August 2006, DOE/IG-0736, 
http://www.ig.doe.gov/pdf/IG-0736.pdf.
  U.S. Nuclear Regulatory Commission, "U.S. Nuclear Regulatory Commission Observation Audit 
Report No. OAR-05-05, Observation Audit Of Bechtel SAIC Company, LLC Internal Audit BQAP-
BSC-05-07," January 9, 2006.
  Jeff Beattie, "Quality Control Issues: DOE Stops Work On Key Parts of Yucca Mountain," The 
Energy Daily, Volume 34, Number 6, January 10, 2006.
  National Research Council of the National Academies, Going the Distance? The Safe Transport of 
Spent Nuclear Fuel and High-Level Radioactive Waste in the United States, 2006.
  U.S. Department of Energy, The Global Nuclear Energy Partnership: Greater Energy Security in a 
Cleaner, Safer World, http://www.gnep.energy.gov/pdfs/06-GA50035b.pdf.
  United States General Accounting Office, Report to the Chairman, Subcommittee on Oversight and 
Investigations, Committee on Energy and Commerce, House of Representatives, Nuclear Waste: 
Challenges to Achieving Potential Savings in DOE's High-Level Waste Cleanup Program, GAO-03-
593, June 2003.
  U.S. Department of Energy, West Valley Demonstration Project Draft Waste Management 
Environmental Impact Statement, May 2003. 
  Annie Makhijani, "French Report Doubts Merits of Reprocessing and MOX," Science for 
Democratic Action Vol.9  No.2, February 2001, http://www.ieer.org/sdafiles/vol_9/9-2/charpin.html.
  Steve Fetter and Frank N. von Hippel, "Is U.S. Reprocessing Worth the Risk?", Arms Control 
Today, September 2005, p. 6-12. Irradiated fuel is extremely radioactive, which acts as a protective 
barrier to theft of plutonium. Separated commercial plutonium can be used to make nuclear weapons 
and so-called "dirty bombs."
  Clay Sell and Robert Joseph, Presentation on the Global Nuclear Energy Partnership (GNEP) at 
the Foreign Press Center Briefing, Washington, DC, February 16, 2006, 
http://fpc.state.gov/fpc/61808.htm.
  IAEA Safeguards Glossary 2001 Edition, http://www-pub.iaea.org/MTCD/publications/PDF/nvs-
3-cd/PDF/NVS3_prn.pdf.
  U.S. National Research Council, Committee on Separations Technology and Transmutation 
Systems, Nuclear Wastes: Technologies for Separations and Transmutation, National Academy 
Press, Washington DC (1996), http://newton.nap.edu/catalog/4912.html 
  Economic Assessment Of Used Nuclear Fuel Management In The United States, Prepared by the 
Boston Consulting Group for AREVA, July 2006, 
http://www.bcg.com/publications/files/2116202EconomicAssessmentReport24Jul0SR.pdf
  Arjun Makhijani, Plutonium End GameManaging Global Stocks of Separated Weapons-Usable 
Commercial and Surplus Nuclear Weapons Plutonium, Institute for Energy and Environmental 
Research, January 2001, p.27, http://www.ieer.org/reports/pu/index.html.
  Ibid., p.21.
  Thomas Cochran and Christopher Paine, Peddling Plutonium: Nuclear Energy Plan Would Make 
the World More Dangerous, Natural Resources Defense Council, March 2006.


  Bureau of Indian Affairs, Record of Decision for the Construction and Operation of an 
Independent Spent Fuel Storage Installation (ISFSI) on the Reservation of the Skull Valley Band of 
Goshute Indians (Band) in Tooele County, Utah, September 7, 2006, page 22.
  National Research Council of the National Academies, Safety and Security of Commercial Spent 
Nuclear Fuel Storage: Public Report, 2006, page 64.
  National Research Council of the National Academies, Going the Distance? The Safe Transport of 
Spent Nuclear Fuel and High-Level Radioactive Waste in the United States, 2006.
  Bureau of Indian Affairs, Record of Decision for the Construction and Operation of an 
Independent Spent Fuel Storage Installation (ISFSI) on the Reservation of the Skull Valley Band of 
Goshute Indians (Band) in Tooele County, Utah, September 7, 2006, page 29.
  Bureau of Indian Affairs, Record of Decision for the Construction and Operation of an 
Independent Spent Fuel Storage Installation (ISFSI) on the Reservation of the Skull Valley Band of 
Goshute Indians (Band) in Tooele County, Utah, September 7, 2006, page 28.

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