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



 
       FUNDING OPTIONS FOR THE YUCCA MOUNTAIN REPOSITORY PROGRAM

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON ENERGY AND AIR QUALITY

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 10, 2005

                               __________

                           Serial No. 109-37

                               __________

       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,       ALBERT R. WYNN, Maryland
Mississippi, 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

      James D. Barnette, Deputy Staff Director and 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
JOHN SHIMKUS, Illinois               HENRY A. WAXMAN, California
HEATHER WILSON, New Mexico           EDWARD J. MARKEY, Massachusetts
JOHN B. SHADEGG, Arizona             ELIOT L. ENGEL, New York
CHARLES W. ``CHIP'' PICKERING,       ALBERT R. WYNN, Maryland
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)

                                  (ii)




                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Berkley, Hon. Shelly, a Representative in Congress from the 
      State of Nevada............................................     3
    Garrish, Theodore J., Deputy Director, Office of Strategy and 
      Program Development, Office of Civilian Radioactive Waste 
      Management.................................................    20
    Garvin, Robert M., Commissioner, Wisconsin Public Service, on 
      Behalf of National Association of Regulatory Utility 
      Commissioners..............................................    14
    Gibbons, Hon. Jim, a Representative in Congress from the 
      State of Nevada............................................     6
    Porter, Hon. Jon C., a Representative in Congress from the 
      State of Nevada............................................     9
Additional materal submitted for the record:
    Bolten, Joshua B., Director, Office of Management and Budget, 
      letter dated March 24, 2005, requesting responses for the 
      record.....................................................    32

                                 (iii)

  

       FUNDING OPTIONS FOR THE YUCCA MOUNTAIN REPOSITORY PROGRAM

                              ----------                              


                        THURSDAY, MARCH 10, 2005

                  House of Representatives,
                  Committee on Energy and Commerce,
                    Subcommittee on Energy and Air Quality,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:56 a.m., in 
room 2123 of the Rayburn House Office Building, Hon. Ralph M. 
Hall (chairman) presiding.
    Members present: Representatives Hall, Shimkus, Walden, 
Otter, Burgess, Barton (ex officio), Boucher, and Dingell (ex 
officio).
    Staff present: Mark Menezes, chief counsel for energy and 
the environment; Kurt Bilas, majority counsel; Annie Caputo, 
majority counsel; Elizabeth Stack, policy coordinator; Peter 
Kielty, legislative clerk; Sue Sheridan, senior minority 
counsel; and Bruce Harris, minority professional staff.
    Mr. Hall. Okay. We will come to order. Without objection, 
the subcommittee will proceed, pursuant to Committee Rule 4E, 
which allows members the opportunity to defer their opening 
statements for extra questioning time.
    The Chair recognizes himself for an opening statement. 
First, I would like to thank Ranking Member Rick Boucher, 
Chairman Barton, and Ranking Member Dingell of the full 
committee for the help in setting up this hearing.
    Yucca Mountain may have to be opened before more nuclear 
power plants can be built. Considering our country's growing 
needs for energy, this isn't a program that many of us feel 
that we can stall any longer. But most importantly, it is an 
issue of fairness, making sure that our constituents get what 
they pay for. Today's hearing is an opportunity for us to look 
at the most serious challenge facing Yucca Mountain, the need 
for Congress to adequately fund the program.
    Over the last 10 years, Yucca Mountain has been under-
funded to the tune of over $1 billion. The worst part of this 
situation is that our Nation's electricity consumers are paying 
for a service that they aren't receiving. This year alone, 
consumers will pay approximately $750 million for a disposal 
facility that is at least 12 years behind schedule. Of that 
money, only $300 million will actually be spent on the program. 
Once again, electricity consumers will get an IOU from the 
government for another $350 million that will be added to the 
Nuclear Waste Fund balance of $17 billion. Ladies and 
gentlemen, that is a lot of IOUs.
    Inadequate funding leads to inadequate progress on this 
program. These delays are costing taxpayers approximately $1 
billion per year. DOE estimates it will spend in the 
neighborhood of $500 million each year on storage costs for 
waste that should be stored in Yucca Mountain by now. Nuclear 
plants will spend an additional $500 million each storing their 
spent fuel, a cost for which the government is liable. Each 
year that we, the Congress, fail to address this issue costs 
taxpayers an additional $1 billion. That is real money, even by 
Congress's standards. We need to solve this problem now.
    We will begin by hearing the view of our Nevada colleagues, 
Congresswoman Berkley and Congressman Porter. I don't see 
Congresswoman Berkley; I do see Congressman Gibbons. Are you 
going to take Ms. Berkley's place, or will she be here?
    Mr. Gibbons. No one can take her place. I am here as an 
independent Congressman from the 2nd District in Nevada, sir.
    Mr. Hall. I believe you can take anybody's place. We will 
begin by hearing the views of these colleagues, and next we 
will hear the views of administration, as presented by Ted 
Garrish, Acting Director of the Office of Civilian Radioactive 
Waste Management at DOE. We will also hear from the Honorable 
Robert Garvin, a commissioner with the Wisconsin Public Service 
Commission, presenting the views of our Nation's public utility 
commissions on behalf of NARUC.
    This committee has attempted, several times, to solve the 
funding dilemma. I encourage my colleagues to use this hearing 
to gain a better understanding of the challenges before us. We 
should seek guidance on how we might ultimately solve the 
difficult problem, and we need to ensure that our constituents 
get what they pay for. We do have a distinguished panel. I 
presume Mrs. Berkley will be here in a little bit. In the time 
meantime, we have John Porter, who is in his second term for 
the 3rd Congressional District. He serves on the House 
Education and Work Force Committee, the House Transportation 
Infrastructure Committee, and the Government Reform Committee, 
where he is a chairman of the Federal Work Force and Agency 
Organization Subcommittee. He served on city council and later 
as mayor of Boulder City. He has been a State Senator, and now 
he is a Congressman. He has been in every sized courthouse 
there is; you might outtalk him, but you can't outrun him. He 
is a Marine Corp marathon veteran.
    We have Congressman Gibbons, his fifth term, representing 
Nevada's 2nd Congressional District. Congressman Gibbons serves 
on the House Resources Committee, the Armed Services Committee, 
and the Committee on Homeland Security. He was a combat pilot, 
highly decorated in both the Vietnam and Persian Gulf Wars, a 
commercial pilot for Western Airline, an exploration geologist, 
a mining- and water-rights attorney, a State legislator, and 
probably someday a Governor out there and will help me get 
tickets to the fights. It wouldn't surprise me at all if he 
didn't do that.
    Congresswoman Shelly Berkley is great lady and a longtime 
friend of mine. First elected to the U.S. House in 1998, she 
represents the 1st Congressional District of Nevada, which 
includes Las Vegas. She is a member of the Committees on 
Transportation and Infrastructure, International Relations, and 
Veterans Affairs. She is a former member of the State 
legislature and longtime regent for Nevada's university system. 
She is good addition to this Congress and will be very helpful 
in this committee hearing.
    And we will get underway. Mr. Boucher was called away on an 
emergency telephone call, and he will be back in a little bit, 
and when he does, whoever is giving your opening statement, we 
will let you finish, and then we will hear from him, if he 
would like, and then we will pick up and go.
    Thank you. The Chair recognizes Ms. Berkley.

STATEMENT OF HON. SHELLY BERKLEY, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Ms. Berkley. Thank you very much, Mr. Chairman. It is 
always a pleasure to appear before you. And before I get 
started, I can assure you I can get you tickets to fights, and 
I don't have to be Governor. I would like to thank----
    Mr. Hall. I assure you I will take them.
    Ms. Berkley. I would like to thank you and Ranking Member 
Boucher for allowing me to testify today. I don't think it will 
be a surprise to anybody, the testimony that I share with you--
you know I have been an opponent of the Yucca Mountain Project 
since its inception and long before I came to the Congress to 
represent the 1st Congressional District.
    Our Nation is facing $550 billion deficits that have left 
vital programs, such as education, healthcare, and veterans' 
benefits under-funded. We should be focusing on these important 
programs because they help the greatest numbers of our 
citizens, not projects such as that Yucca Mountain Repository, 
which has already cost billions and has a ballooning price tag, 
depending on who you talk to, of anywhere from $58 billion to 
$308 billion. Despite multiple lawsuits challenging the site, 
unresolved scientific issues, findings establishing that the 
storage canisters at Yucca Mountain will corrode--and the 
finding was that they will corrode and release radioactive 
waste in our groundwater--and enormous terrorist risks that 
this plan creates if waste is shipped across the Nation, the 
administration continues to push recklessly ahead with this 
project. The United States Court of Appeals, the second highest 
court in the Nation, ruled that the radiation standard for the 
proposed nuclear waste dump is not based on sound science and 
will not protect the health and safety of the American people. 
The court found that the EPA blatantly disregarded the findings 
of the National Academy of Sciences and that radiation levels 
will reach their peak in 300,000 years, instead of the 10,000-
year radiation standard that was set by EPA. Rather than 
incorporating the findings of the National Academy of Sciences, 
when crafting safety guidelines, the Bush Administration 
ignored the law and knowingly ordered the EPA to draft a 
radiation standard, not based on science, but an arbitrary 
period of 10,000 years. The gap between the science and the EPA 
standard? A mere 290,000 years.
    The proposal to reclassify contributions to the Nuclear 
Waste Trust Fund as offsetting collections is shortsighted and 
fiscally irresponsible. Not only does this budget gimmick 
funnel money into a project plagued with problems, it also 
bypasses budgetary rules that have been set forth in order to 
maintain the integrity of our appropriations process.
    I remind you, although I am sure I do not have to, that we 
really seek waivers for funding of critical programs such as 
the ones I originally mentioned, for education, and healthcare. 
Then why would we be doing this for the Yucca Mountain Project?
    Another plan proposes to move the Yucca Mountain Project 
off budget. This reckless proposal would dedicate all current 
and future proceeds of the Nuclear Waste Fund to the Yucca 
Mountain Project. This project is in a downward spiral. Even 
members of the nuclear industry are beginning to look for 
alternative ways of storing the nuclear waste. Throwing more 
money at this trouble-ridden albatross will not fill the gaps 
in the science because the science simply isn't there.
    It will not change the fact that Yucca Mountain is prone to 
regular seismic activity and threatened by volcanic activity. 
It will not change the fact that it is impossible to safely 
transport 77,000 tons of radioactive waste across the United 
States, across 43 States and 360 Congressional Districts for 
the next 30 to 40 years. Nuclear waste shipments will pass 
within miles of our homes, our places of worship, our schools, 
and our neighborhoods.
    To guarantee such a massive amount of funding without 
proper oversight is an invitation for waste and abuse. With 
looming deficits, we must ensure that every dime of taxpayers' 
money is spent responsibly.
    Instead of walling off funds from the Nuclear Waste 
Disposal Program, we should be investing in alternative methods 
to safely dispose of high-level radioactive waste, including 
dry-cast storage onsite.
    We should also be endowing programs for the research and 
development of cleaner forms of energy, such as renewables, not 
problem-ridden projects like the Yucca Mountain Project that 
creates potential risks to all of our communities.
    Yucca Mountain is unprecedented in its scope and nature, as 
well as the potential harmful consequences on the health and 
safety of millions of Americans. A project of this magnitude 
must undergo Congressional scrutiny at every stage in order to 
ensure the safety of our public.
    The Department of Energy has consistently changed 
regulations and reduced standards in order to railroad Nevadans 
and push the Yucca Mountain Project through. These funding 
proposals are just another example of changing the rules to 
accelerate a project that lacks sound science.
    Funds for Yucca Mountain should have to compete with our 
need to expand clean-energy sources. At a time when energy 
markets are volatile and the cost of gas is skyrocketing, our 
Nation must scrutinize every dollar spent on the Yucca Mountain 
Project. We should invest our resources to strengthen and 
diversify clean-energy sources, not invest billions in the 
nuclear-energy technology, a 20th Century energy solution to a 
21st Century world problem that has a deadly byproduct and a 
deadly consequence.
    Congess should also be using the same vigor to fill the 
gaps in funding for education, healthcare, and veterans 
programs. Given the overwhelming needs in our Nation and the 
limited resources at our disposal, it makes absolutely no sense 
to give special treatment to the Yucca Mountain Project at the 
expense of millions of Americans.
    I urge the members of the subcommittee to reject any 
proposal that would skirt the appropriations process, reduce 
necessary Congressional oversight, and limit our authority and 
power as Congresspeople to oversee a most important project in 
this Nation. Thank you very much for your very kind attention.
    [The prepared statement of Hon. Shelly Berkley follows:]

    Prepared Statement of Hon. Shelley Berkley, a Representative in 
                   Congress from the State of Nevada

    I would like to thank Chairman Hall and Ranking Member Boucher for 
allowing me to testify today.
    Our nation is facing $550 billion deficits that have left vital 
programs, such as education, health care, and veterans benefits 
underfunded. We should be focusing on these important programs because 
they help the greatest number of people. Not projects, such as the 
Yucca Mountain repository, which has already cost billions and has a 
ballooning pricetag of $58 billion to $308 billion.
    Despite multiple lawsuits challenging the site, unresolved 
scientific issues, findings establishing that the storage canisters at 
Yucca Mountain will corrode and release radioactive waste into our 
groundwater, and enormous terrorist risks this plan creates if waste is 
shipped across the nation, the Administration continues to push 
recklessly ahead with this project.
    The U.S. Court of Appeals--the second highest court in the nation, 
ruled that the radiation standard for the proposed nuclear waste dump 
is not based on sound science and will not protect the health and 
safety of the American people.
    The Court found that the Environmental Protection Agency blatantly 
disregarded the findings of the National Academy of Sciences (NAS) that 
radiation levels will reach their peak in 300,000 years, and instead 
set a 10,000 year radiation standard. Rather than incorporating the 
findings of the NAS when crafting safety guidelines, the Bush 
Administration ignored the law and knowingly ordered EPA to draft a 
radiation standard based not on science, but an arbitrary period of 
10,000 years.
    The gap between the science and the EPA standard? A mere 290,000 
years!
    The proposal to reclassify contributions to the Nuclear Waste Trust 
Fund as offsetting collections is shortsighted and fiscally 
irresponsible. Not only does this budget gimmick funnel money into a 
project plagued with problems, it also bypasses budgetary rules that 
have been set forth in order to maintain the integrity of our 
appropriations process.
    I remind you that we rarely seek waivers for the funding of 
critical programs, such as the ones I mentioned before--education and 
healthcare, as we are doing for the Yucca Mountain Project.
    Another plan proposes to move the Yucca Mountain Project off-
budget. This reckless proposal would dedicate all current and future 
proceeds of the Nuclear Waste Fund to the Yucca Mountain Project. This 
project is in a downward spiral, and throwing more money at this 
problem-ridden albatross will not fill the gaps in the science, because 
the science is not there. It will not change the fact that Yucca 
Mountain is prone to regular seismic activity and threatened by 
volcanic activity.
    It will also not change the fact that it is impossible to safely 
transport 77,000 tons of radioactive waste across the United States 
through 43 states, and perhaps as many as 360 Congressional districts, 
for the next 30 to 40 years. Nuclear waste shipments will pass within 
miles of our homes, places of worship, schools, and hospitals.
    To guarantee such a massive amount of funding without proper 
oversight is an invitation for waste and abuse. With looming deficits, 
we must ensure that every dime of taxpayer money is spent responsibly.
    Instead of walling off funds from the Nuclear Waste Disposal 
Program, we should be investing in alternative methods to safely 
dispose of high level radioactive waste.
    We should also be endowing programs for the research and 
development of cleaner forms of energy, such as renewables, not 
problem-ridden projects like Yucca Mountain that create potential risks 
to our communities.
    Yucca Mountain is unprecedented in its scope and nature, as well as 
the potential harmful consequences on the health and safety of millions 
of Americans. A project of this magnitude must undergo congressional 
scrutiny at every stage in order to ensure the safety of our public.
    The Department of Energy has consistently changed regulations and 
reduced standards in order to railroad Nevadans and push the Yucca 
Mountain Project through. These funding proposals are just another 
example of changing the rules to accelerate a project that lacks sound 
science.
    Funds for Yucca Mountain should have to compete with our need to 
expand clean energy sources. At a time when energy markets are volatile 
and the cost of gas is skyrocketing, our nation must scrutinize every 
dollar spent on the Yucca Mountain Project. We should invest our 
resources to strengthen and diversify clean energy sources, not invest 
billions in nuclear energy technology, a 20th Century energy solution 
in a 21st Century world that has a deadly byproduct.
    Congress should also be using the same vigor to fill the gaps in 
funding for education, health care and veterans programs. Given the 
overwhelming needs in our nation and the limited resources at our 
disposal, it makes absolutely no sense to give special treatment to the 
Yucca Mountain Project at the expense of millions of Americans.
    I urge the Members of the Subcommittee to reject any proposal that 
would skirt the appropriations process and reduce necessary 
congressional oversight.

    Mr. Hall. Thank you very much. The Chair recognizes Mr. 
Gibbons.

  STATEMENT OF HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Mr. Gibbons. Thank you very much, Chairman Hall, Mr. 
Boucher, members of the committee. Thank you for giving me an 
opportunity to also testify on this very important issue.
    I can completely understand the emotional draw that it has 
for everyone in this country, but this has also been a very 
emotional issue for Nevada. It is one of the utmost concerns to 
me and to many of the constituents that I have, because Yucca 
Mountain is in the 2nd Congressional District of Nevada. I 
represent every county in Nevada, including Nye County, which 
includes Yucca Mountain, as I said earlier. As you probably 
know, I mean strong opposition to Yucca Mountain. It is an 
unsafe and unsuitable solution to our nuclear waste problem. 
However, today, I would like to focus my testimony, not on the 
scientific flaws, but more likely on the flawed fiscal 
responsibility that has been associated with this program.
    Under no circumstances, Mr. Chairman, should the funding 
for Yucca Mountain Project be taken off budget or removed from 
the tight fiscal control of Congress. Currently the nuclear-
power industry pays into the Nuclear Waste Trust Fund based on 
their kilowatt per hour production. As of November 2004, these 
payments have totaled close to $23 billion. Now, these payments 
are then designated toward the construction of the Yucca 
Mountain Waste Repository; however, these payments are not 
directly diverted toward to this ill-advised project, but 
instead require strict, yearly Congressional appropriation. 
Similar to other government trust funds, the balance of the 
trust fund is used for other purposes.
    Over the past few years, many of our fellow colleagues have 
proposed changing the classification of this trust fund and 
essentially allowing all of these moneys to be used for 
construction of Yucca Mountain. While many proponents of the 
Yucca Mountain Project have applauded this effort, as Members 
of Congress and stewards of fiscal responsibility, we should 
soundly reject the proposal to take it off budget.
    With the current budget deficit growing out of our control, 
it is imperative that Congress maintain more control of 
government spending, not less. If this proposal is adopted, 
Congress will no longer have strict oversight of the current 
trust fund balance, totaling close to $17 billion. This is 
approximately $17 billion that has already been used for debt 
reduction and will now no longer be under the watchful eye of 
Congress.
    This does not even include the future receipts of the trust 
fund, with an estimated $1.6 billion being collected in fiscal 
year 2005, alone.
    In a time when Republicans are on the Hill demanding 
Congressional oversight on spending, I think it is hypocritical 
to make more spending not subject to strict, yearly 
Congressional oversight. I understand that some will argue that 
taking the Yucca Mountain Project off budget is not technically 
shifting the funding into a mandatory funding and that the 
program will still require yearly Congressional oversight. 
However, I challenge the committee to explain how taking the 
Yucca Mountain plan off budget does not have the same effect as 
a mandatory account.
    I challenge you to explain how such a proposal will not 
create unnecessary incentives for appropriators to allocate the 
entire trust fund. In addition, a recent decision in the 
Federal Appeals Courts ordered that the Federal Government 
needs to develop a plan to protect the public against radiation 
released beyond the 10,000 year standard. As a result of the 
Court's decision, the Environmental Protection Agency must now 
promulgate a new safety standard that that can show compliance 
well beyond the 10,000-year mark, more like 100,000 years.
    Now, these are Congressional mandated safety standards 
which the Department of Energy cannot realistically meet. It is 
the permitting issue, and not funding, that pose a greater 
challenge to the future construction of Yucca Mountain. It 
would be completely irresponsible for Congress to give the 
Department of Energy a check for approximately $17 billion for 
this project when it is all but certain that the DOE may never 
open it and certainly cannot meet the strict safety standards 
that Congress have previously set.
    Simply put, taking the Yucca Mountain Project off budget is 
bad policy and a poor precedent for Congress to set. If 
Congress is willing to give the Department of Energy complete 
control of this trust fund without any Congressional oversight, 
what message does that send to other constituents throughout 
this Nation? Constituents expect us to hold the line on 
irresponsible government spending and reign in the growing 
budget deficit. Removing billions of dollars from our oversight 
is not an appropriate or responsible budgetary decision.
    Mr. Chairman, I want to thank you for the time and the 
opportunity to testify before your committee today, and I would 
ask unanimous consent that a complete, written copy of my 
remarks be entered into the record.
    [The prepared statement of Hon. Jim Gibbons follows:]

 Prepared Statement of Hon. Jim Gibbons, a Representative in Congress 
                        from the State of Nevada

    Mr. Chairman, thank you for giving me the opportunity to testify on 
this important issue.
    This is an issue that has always been of the utmost concern to me 
and to many of my constituents. I represent every county in Nevada, 
including Nye County which includes the Yucca Mountain waste 
repository.
    As you all probably know I am in strong opposition to Yucca 
Mountain. It is an unsafe and unsuitable solution to our nuclear waste 
problem.
    However, today, I would like to focus my testimony not on the 
scientific flaws with the project but on fiscal responsibility. Under 
no circumstances should the funding for the Yucca Mountain Project be 
taken off-budget or removed from the tight fiscal control of Congress.
    Currently, the nuclear power industry pays into the Nuclear Waste 
Trust fund based on their Kilo watt per hour power production. As of 
November 2004, these payments have totaled close to 23 billion dollars. 
These payments are then designated towards the construction of the 
Yucca Mountain waste repository. However, these payments are not 
directly diverted to this ill-advised project, but instead require 
strict yearly congressional appropriations. Similar to other government 
trust funds, the balance of the trust fund is put back into the general 
Treasury account and used to pay off our national debt.
    Over the past few years, many of our fellow colleagues have 
proposed changing the classification of this trust fund and essentially 
allowing all these monies to be directly used for construction of Yucca 
Mountain. While many proponents of the Yucca Mountain project have 
applauded this effort, as Members of Congress and stewards of fiscal 
responsibility, we should soundly reject this proposal. With the 
current budget deficit growing out of our control, it is imperative 
that Congress maintain more control of government spending, not less.
    If this proposal is adopted, then Congress will no longer have 
strict oversight of the current trust fund balance B totaling close to 
17 billion dollars! This is approximately 17 billion dollars that has 
already been used for debt reduction, and will now no longer be under 
the watchful eye of Congress. This does not even include the future 
receipts of the trust fund, with an estimated $1.6 billion being 
collected in FY 2005 alone. In a time when Republicans on the hill are 
demanding Congressional oversight on spending, it is hypocritical to 
then make more spending not subject to strict yearly congressional 
oversight.
    I understand that some will argue that taking the Yucca Mountain 
project off-budget is not technically shifting the funding into a 
mandatory program and that the program will still require yearly 
congressional oversight. However, I challenge the committee to explain 
how taking the Yucca Mountain project off-budget does not have the same 
affect as a mandatory account. I challenge you to explain how such a 
proposal will not create unnecessary incentives for appropriators to 
allocate the entire trust fund?
    In addition, a recent decision in the federal appeals court ordered 
that the federal government needs to develop a plan to protect the 
public against radiation releases beyond the proposed 10,000 years. As 
a result of the court's decision, the Environmental Protection Agency 
(EPA) must now promulgate a new safety standard that can show 
compliance well beyond 10,000 years.
    These are congressional mandated safety standards which the 
Department of Energy cannot realistically met. It is this permitting 
issue--and not funding--that pose a greater challenge to the future 
construction of Yucca Mountain.
    It would be completely irresponsible for Congress to give the 
Department of Energy a check for approximately 17 billion dollars for 
this project, when it is all but certain that the DOE may never open it 
and certainly cannot meet the strict safety standards set by Congress.
    Simply put, taking the Yucca Mountain project off-budget is bad 
policy, and a poor precedent for Congress to set. If Congress is 
willing to give the Department of Energy complete control of this trust 
fund, without any congressional oversight, what message does that send 
to our constituents throughout this nation? Constituents expect us to 
hold the line on irresponsible government spending and rein in the 
growing budget deficit. Removing billions of dollars from our oversight 
is not an appropriate or responsible budgetary decision.
    Thank you for your time and the opportunity to testifying before 
your committee today.

    Mr. Hall. Without objection, and I thank you. And I would 
say this, before I recognize Mr. Porter, that while there are 
some differences of opinion with some of your testimony, I note 
that you have always done it with a professional approach, 
fiercely battling for your folks and with class. I appreciate 
that. Mr. Porter, you are recognized, sir.

 STATEMENT OF HON. JON C. PORTER, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Mr. Porter. Thank you, Mr. Chairman and Mr. Boucher for 
affording me the opportunity to testify today.
    As I am sure you can imagine, the Yucca Mountain issue 
remains an intensely personal issue to myself and my fellow 
Nevadans. I have been in public office for over 20 years of my 
life, and throughout those 20 years, I have fought on behalf of 
Southern Nevadans on many issues. In looking back over this 
period of time, one issue stands tall above the rest. This is a 
push-button issue for Nevadans, and that is Yucca Mountain. 
Therefore, Mr. Chairman, I am here today to express my vehement 
opposition to this project on behalf of my constituents in 
Southern Nevada.
    Throughout the fight against Yucca Mountain, one thing 
seems to be proven time and time again: Yucca Mountain has yet 
to be proven safe as a repository to dump our Nation's high-
level nuclear waste. Since 1987, when Yucca Mountain was named 
the only site to be considered further, billions upon billions 
of dollars have been spent on this ill-fated project. Study 
after study proves that Yucca Mountain is not as solid as 
information as we have provided before.
    Earthquakes, water percolation, transportation, and 
radiological safety standards have plagued the Yucca Mountain 
Project, yet we continue this fight year after year.
    I wish we knew in 1987 what we know today. Located only 90 
miles from Las Vegas, and even closer to the quickly growing 
community of Pahrump, Nevada, Yucca Mountain is becoming more 
and more of a threat to the health and safety of Southern 
Nevadans as well as to millions of Americans with every day 
that it is being considered our Nation's nuclear waste 
repository.
    The Yucca Mountain Project will directly impact 44 States 
and many major metropolitan areas, including Chicago, Toledo, 
Los Angeles, Dallas, Pittsburgh, and Denver, as the millions of 
shipments of high-level nuclear waste would be trucked and 
shipped and sent by train through these communities.
    Mr. Chairman, I disagree with Yucca Mountain on many 
different fronts, but the reason for this hearing today is to 
talk about the funding options that are before you. Last year, 
funding for Yucca Mountain was cut significantly. This year, 
the Energy Department's top nuclear manager publicly 
acknowledged that Yucca is falling behind schedule. This is 
frustrating for proponents for Yucca Mountain, causing them to 
look toward other solutions to put Yucca Mountain back on 
track.
    One of the options that has been mentioned frequently is 
taking some more of the funds generated under the Nuclear Waste 
Fund to help pay for Yucca Mountain. Although to some, this 
approach may seem like a short-term solution to funding issues 
surrounding Yucca Mountain, I have a firm belief that this 
would equate to basically giving its proponents a blank check 
to complete the construction of this project putting all 
Americans at risk, not just Nevadans.
    As you know, Mr. Chairman, the transportation and storage 
of high-level nuclear waste is not an issue to ignore, 
especially in the post-September 11 world. Shipping 77,000 
metric tons of dangerous, radioactive nuclear waste by removing 
it from reactor sites around the country and putting it on 
trucks, trains, barges, and moving it through cities and towns 
and waterways across America is a dangerous scheme, and we as a 
Congress cannot afford any missteps along the way.
    Now is definitely not the time to lessen managerial 
oversight of this project. With all of the problems currently 
looming over Yucca Mountain, we as Members of Congress cannot 
lessen our oversight over a project when we have not seen the 
final safety standards.
    Mr. Chairman, the American people deserve better. The 
American people deserve more from us than wasting our time 
throwing billions of dollars in project that has spent too long 
already at the public trough. For this reason, on behalf of the 
people of Nevada, I insist that this body maintain its 
oversight authority over such potentially dangerous projects. 
Taking an item off budget is reserved for issues of national 
interest, far surpassing the completion of Yucca Mountain. Just 
because the project may not be on track does not mean that we, 
as Members, should try to force it to move any faster, putting 
all Americans at risk. This also sets a dangerous precedent for 
all projects across the country that do not meet an arbitrary 
master plan. Any budgetary gimmicks like this are dangerous and 
cannot be allowed.
    Mr. Chairman, last year, I testified before the committee 
regarding this same issue, and my message remains the same: We 
are all here to represent millions of people from across the 
country. These constituents have instilled their faith in each 
of us to make pretty tough decisions to protect not only their 
interests and their tax dollars, but their health and safety as 
well. In attempting to find other ways to fund Yucca Mountain, 
whose interests are being served, the health and safety of our 
constituents, or is it the balance sheets of the nuclear 
utility companies?
    Mr. Chairman, I thank you again for this opportunity, and I 
ask that you look closely at what decisions can be made that 
may impact all of these families, children, schools, churches, 
and businesses across the country if we give up that oversight 
that we have had as a U.S. Congress. Thank you, Mr. Chairman.
    [The prepared statement of Hon. Jon C. Porter follows:]

  Prepared Statement of Hon. Jon Porter, a Representative in Congress 
                        from the State of Nevada

    Mr. Chairman, thank you for providing me the opportunity to testify 
today. As I am sure you can imagine, the Yucca Mountain issue remains 
an intensely personal issue to myself and to my fellow Nevadans as 
well.
    I have been in public office for over twenty years of my life. 
Throughout these twenty years, I have fought on behalf of Southern 
Nevadans on many issues. In looking back, one issue stands tall above 
the rest as THE ``push-button'' issue for Nevadans--Yucca Mountain. 
Therefore, Mr. Chairman, I am here today to express my vehement 
opposition to this project on behalf of my constituents in Southern 
Nevada.
    Throughout the fight against Yucca Mountain, one thing seems to be 
proven time and time again--Yucca Mountain has yet to be proven a safe 
repository to dump our nations' high-level nuclear waste. Since 1987, 
when Yucca Mountain was named the only site to be considered further, 
billions upon billions of dollars have been spent on this ill-fated 
project, only to have study after study prove that Yucca is not the 
solid formation it was once thought to be. Earthquakes, water 
percolation, transportation and radiological safety standards have 
plagued the Yucca Mountain project, yet we continue this fight year 
after year. I wish we knew in 1987 what we know now.
    Located only 80 miles from Las Vegas, and even closer to the 
quickly-growing city of Pahrump, Yucca Mountain is becoming more and 
more of a threat to the health and safety of Southern Nevadans, as well 
as the millions of Americans, with every day that it is being 
considered as our nation's nuclear waste repository. The Yucca Mountain 
project will directly impact 44 states and many major metropolitan 
areas, including Chicago, Toledo, Los Angeles, Dallas, Pittsburg, and 
Denver, as millions of shipments of high-level nuclear waste is 
trucked, shipped, and sent by train through these areas.
    Mr. Chairman, I disagree with Yucca Mountain on many different 
fronts, but the reason for this hearing today is to talk about funding 
options. Last year, funding for Yucca Mountain was cut significantly. 
This year, the Energy Department's top nuclear manager has publicly 
acknowledged that Yucca is falling behind schedule. This has frustrated 
proponents of Yucca Mountain, causing them to look toward other 
``solutions'' to put Yucca Mountain back on track. One of the options 
that has been mentioned frequently is taking some of the funds 
generated under the Nuclear Waste Fund to help pay for Yucca Mountain.
    Although, to some, this approach may seem like a short-term 
solution to the funding issues surrounding Yucca Mountain, I am of the 
firm belief that giving its proponents a ``blank check'' to complete 
the construction of this project will end up putting all Americans at 
risk. As you know, the transportation and storage of high-level nuclear 
waste is not an issue to ignore, especially in a post September 11th 
world. Shipping 77,000 metric tons of dangerous radioactive nuclear 
waste by removing it from reactor sites around the country, and putting 
it on trucks, trains and barges, and moving it through cities, towns 
and waterways across America is a dangerous scheme and we, as Congress, 
cannot afford any missteps along the way.
    Now is definitely not the time to lessen managerial oversight over 
this project, and with all of the problems currently looming over the 
Yucca Mountain, we as Members of Congress, cannot lessen our oversight 
over a project that we have not even seen final safety standards on. 
The American people deserve more from us than wasting our time throwing 
billions of dollars at a project that has spent too long already at the 
public trough.
    For this reason, I, on behalf of the people of Nevada, insist that 
this body maintain its oversight authority over such potentially 
dangerous projects. Taking an item off-budget is reserved for issues of 
national interest that far surpass the completion of Yucca Mountain. 
Just because the project may not be as ``on track'' as it should be 
does not mean that we, as Members, should try to force it to move any 
faster. This also sets a dangerous precedent for all projects across 
the country that do not meet an arbitrary master plan. Any budgetary 
gimmicks like this are dangerous and cannot be allowed.
    Mr. Chairman, last year I testified before the Subcommittee on 
Energy and Water Quality regarding this same issue, and my message 
remains the same: We are all here to represent millions of people from 
across the country. These constituents have instilled their faith in 
each of us to make tough decisions to protect not only their interests 
and tax dollars, but their health and safety as well. In attempting to 
find other ways to fund Yucca Mountain, whose interests are being 
served, the health and safety of our constituents, or the balance 
sheets of the nuclear utility companies?
    Again, Mr. Chairman, thank you for the opportunity to testify 
today. I will continue to join the other members of Nevada's delegation 
in representing the overwhelming majority of Nevadans who oppose Yucca 
Mountain, and I would be happy to answer any questions the panel may 
have.

    Mr. Hall. You used exactly your 5 minutes, not even 1 
second over.
    Mr. Porter. Thank you.
    Mr. Hall. Perfect timing and I thank you for it. The Chair 
is going to recognize the ranking member, the very venerable, 
longtime chairman of this committee, Mr. Dingell, for an 
opening statement.
    Mr. Dingell. Mr. Chairman, thank you for your courtesy, and 
thank you for this hearing on an issue that is very important, 
not only in terms of energy policy, but also in terms of 
consumer protection and deficit spending.
    The need to put Yucca Mountain on a sound financial footing 
is an issue which you and Chairman Barton and I have been able 
to work together on in the past. I look forward, again, to 
doing so in this Congress.
    As I have outlined before, I have three major funding 
concerns. First, we need to determine whether the Department of 
Energy $651 million request for the 2006 fiscal year is 
adequate to meet the program's near-term needs. Second, we need 
to secure sufficient long-term funding for the project by 
insulating the $16 billion balance in the Nuclear Waste Trust 
Fund from competing pressures. That translates, Mr. Chairman, 
to saying that we would protect it against the grubby hands of 
the Appropriations Committee, the Budget Committee, and the 
Office of Management and Budget, all of whom will spend this 
money for purposes quite different than those for which the 
Congress designed the Fund. Finally, we need to protect 
taxpayers' future payments to the fund from being siphoned off 
by the budgeters and being spent on unrelated programs, and see 
that they are spent on that which the Congress has said they 
should be spent.
    Some of these challenges may require legislation; some may 
not. The administration's budget suggests that futures payments 
to the fund should be ``reclassified'' for purposes of budget 
treatment in order to alleviate certain pressures on program 
funding.
    That doesn't sound very good to me, and I would observe 
that it probably means that they are talking about seeing to it 
that those funds are dissipated in some curious way which might 
satisfy somebody else's intentions other than this committee 
and the Congress.
    Some believe that the Office of Management and Budget 
already has the authority to accomplish this action by 
administrative means; however, we have to regret that the good 
people at OMB have been too busy to answer the letters I sent 
them in May 2004 and January 2005 posing this question. Perhaps 
this indicates that Yucca Mountain is not an important matter 
in the eyes of those in the administration. I hope that that is 
not the case. Clearly, they are not being forthcoming in 
dealing with the Congress or vigorous in terms of protecting 
the public interest with regard to these funds.
    The reclassification approach, however, appears to have 
drawbacks. It does not address the need to take the balance of 
the Fund off budget as this committee voted to do in two prior 
Congresses. It does nothing to secure the adequate annual 
appropriations for the Yucca Mountain Project as direct 
spending could. It does not ensure that future contributions by 
ratepayers are fully dedicated to this project rather than 
unrelated budgetary priorities, as adopting a user-fee concept 
might, nor does it limit the amount of money flowing 
irretrievably into the Waste Fund, as would lowering the bill 
fee to collect only the amount needed for the annual spending 
could.
    Finally, it appears that some reclassification bills have 
the subtle effect of masking increased deficit spending. I 
recognize, of course, that all of the proposals have 
limitations, either practical or political. It will do nothing 
for the program or for consumer, however, for the Congress to 
aim low, to settle only for gimmicks and gimcracks when we 
should be considering broad reform that might actually get the 
job done and put the nuclear waste of this country into a safe 
and proper repository and see to it that the public moneys are 
spent in a proper fashion, in accord with what the Congress 
said they should be spent for.
    I will close with the hope that these will be reviewed as 
constructive suggestions by the administration. I confess I 
have small hope of that. Nuclear waste legislation is enacted 
only once in a blue moon. Without clear leadership and support 
from the executive branch, Congress can do little more than 
nibble at the edges of the serious funding that this program 
faces.
    In my letter of January 14, 2005 to the OMB, I asked for 
the administration's positions on various legislative and 
administrative options. I know the folks over there are very 
busy, but it would be helpful if they would pause long enough 
to give us a response on a matter very important to our current 
legislative considerations and purposes of this hearing. 
Alternatively, perhaps, the testimony of Mr. Garrish of DOE 
would be able to enlighten us on this regard. I would suggest 
that we should ask him questions since administration officials 
have a noticeable allergy and reluctance to appearing here to 
discuss these matters with us.
    I thank you for holding this hearing. Let us hope we can 
get to the bottom of this thing, that we have some cooperation 
from the administration. I hope that that will be so. The hopes 
are small. Thank you, Mr. Chairman.
    Mr. Hall. Mr. Dingell, we thank you.
    Are there other gentlemen who would usurp the chairman's 
time by making another statement? Or would you like to have 
your statement put in the record? Does anybody want to be 
recognized for 5 minutes? Okay. Well, I was joking. We will 
hear from any of you, if you want to, or if you would like, put 
it in the record. Okay, the Chair hears none.
    All right. At this time, we are honored to hear from 
Ranking Member Boucher, the gentleman from Virginia.
    Mr. Boucher. Well, thank you very much, Mr. Chairman. I do 
have a brief statement this afternoon.
    I very much appreciate your convening this hearing on the 
subject of status of funding relating to the Yucca Mountain 
Nuclear Waste Repository. The Nuclear Waste Policy Act of 1982 
gives the Federal Government the responsibility of providing a 
facility for the permanent disposal of nuclear waste. As 
stipulated by the Act, nuclear generators of electricity are 
responsible for the cost of both permanent disposal and interim 
storage at utility reactor sites. The cost of storage and 
disposal of nuclear waste are funded by an assessment charged 
to customers who received electricity generated by nuclear 
power. These fees are collected and then placed in the Nuclear 
Waste Fund and are administered by the Department of Energy. 
DOE has recently abandoned its most recent 2010 target for 
opening the depository at Yucca Mountain and then also missed 
the target of December 2004 to file a license application for 
the Yucca Mountain facility.
    Approximately $6 billion has been spent on the program to 
date and more than $16 billion remains in the Nuclear Waste 
Fund. However, moneys assigned to the fund have been used for 
other purposes in previous years, and the program, now, has to 
compete for funding with other unrelated DOE programs. The fund 
needs to be altered in order to ensure that ratepayer 
contributions are applied for the purpose intended and that the 
Yucca Mountain receives the funding that it needs in order to 
proceed in a timely manner.
    Our witnesses today will comment on the need to alter the 
fund in order to ensure that the program moves forward. I, 
personally, support appropriate changes to the fund's structure 
that would ensure adequate moneys for the program and direct 
future collections to the furtherance of the Yucca Mountain 
program. Potentially, the interest on the existing fund balance 
should also be so protected and directed to program activities. 
And perhaps, we should be concerning ourselves with the 
principle that is the fund, the more than $16 billion currently 
residing in that fund, which we hope would be made available in 
a timely way for program use.
    And I look forward to hearing from our witnesses their 
thoughts on the steps we should be taking to achieve these 
goals. Thank you very much, Mr. Chairman.
    Mr. Hall. Thank you, Mr. Boucher.
    The second panel, please, come forward. We will have Mr. 
Theodore J. Garrish, Deputy Director, Office of Strategy and 
Program Development, Office of Civilian Radioactive Waste 
Management with the Department of Energy. And we have Honorable 
Robert M. Garvin, Commissioner, Wisconsin Public Service. He is 
testifying on behalf of the National Association of Regulatory 
Utility Commissioners. Gentlemen, we recognize you.
    At this time, Mr. Garvin, we recognize you for 5 minutes. 
You are not relegated to that; you may use less time than that 
if you would like, or if you run over, we will be considerate. 
Thank you. We recognize you.

 STATEMENTS OF ROBERT M. GARVIN, COMMISSIONER, WISCONSIN PUBLIC 
   SERVICE, ON BEHALF OF NATIONAL ASSOCIATION OF REGULATORY 
    UTILITY COMMISSIONERS; AND THEODORE J. GARRISH, DEPUTY 
DIRECTOR, OFFICE OF STRATEGY AND PROGRAM DEVELOPMENT, OFFICE OF 
             CIVILIAN RADIOACTIVE WASTE MANAGEMENT

    Mr. Garvin. I am new to this. Thank you very much, Mr. 
Chairman. My name is Robert Garvin. I am a member of the Public 
Service Commission of Wisconsin. I also serve as Chairman of 
NARUC's subcommittee on nuclear issues. I am testifying today 
on behalf on NARUC. I very much appreciate the opportunity to 
appear before you today, and I would ask that my full testimony 
be submitted into this record.
    I will briefly summarize our views. NARUC's goal for the 
Civilian Radioactive Waste Management program is for the 
Federal Government to meet its statutory and contractual 
obligations to accept commercial spent nuclear fuel now stored 
at 72 locations across this country and to safely dispose of 
that waste. While we had wanted that process to begin in 1998, 
as the law in contract signed with nuclear utilities required, 
further delay now seems likely. The ratepayers we represent 
have done their part by paying, through their utilities, over 
$24 billion in fees and interest over the past 2 decades. 
Despite Congressional approval of Yucca Mountain in 2002, 
meeting the 2010 latest waste-disposal target date is not 
certain because the license-review process for the Yucca 
facility has yet to begin.
    While certain litigation by the State of Nevada has been 
resolved, more litigation seems likely. And the biggest 
obstacle may be that funding available for the repository 
program may be inadequate to meet the necessary schedule.
    While money should not be a hindrance to the repository 
program, it has been, as a growing gap between fee revenue and 
interest earned and annual appropriations. The repository 
budget has been cut for the past decade, while revenue 
continues to flow in, leaving a $16 billion in the Nuclear 
Waste Fund that is basically inaccessible for its intended 
purpose.
    We believe a critical aspect of completing the Yucca 
project is for Congress to reform the process by which moneys 
from the Nuclear Waste Fund are made available for the program. 
There are a number of acceptable ways for the current funding 
problems to be resolved, so long as, the imbalance between 
revenue and annual appropriations is brought to an end, and the 
legislative change allows nuclear waste disposal to become a 
reality.
    The costs of delay are significant to the government and 
utility customers. It is estimated by DOE to be $\1/2\ billion 
for every year past 2010 for just the government waste. The 
cost of commercial waste, for which DOE is also liable, is 
surely that much, if not more, and it was mentioned today $500 
billion a year. As a State regulator from a State that relies 
on nuclear energy as a critical base-load resource, we have 
seen firsthand how delays in Yucca are costing consumers.
    In the case of WE Energies, we regulators have authorized 
the utility to spend approximately $50 million for interim 
storage facilities and dry-cast storage at its Point Beach 
facilities for the past decade. In addition, if it is 
relicensed, there will be even more dollars spent for interim 
facilities. In the case of another investor-owned utility, 
Wisconsin Public Service Corporation, they have not had to 
invest in dry-cast storage to date because the original 
facility was sized to host two plants. It may be required to 
take measures to enlarge the storage facility, and it has at 
the Kiwani Pool, and this is another interim measure, and dry-
cast facilities may be required if they seek relicensure.
    Dairyland is a small facility on the banks of the 
Mississippi River that has been retired for over 15 years, yet 
Dairyland customers continue to incur costs for the storage of 
spent nuclear fuel there. In fact, Dairyland is one of the 
groups of nuclear operators, or former operators, who are 
actively pursing a privately run central storage facility. All 
of these real and potential expenditures are in addition to the 
$350 million of principle paid through September 2005 that 
Wisconsin ratepayers pay into the fund.
    In summary, the lack of certainty over waste disposal 
places a cloud over future nuclear generation in a very 
volatile energy marketplace. The Nation needs to move forward 
to assure the availability of safe, permanent disposal of 
nuclear waste without further delay. We urge Congress to act on 
effective reform of management of the Nuclear Waste Fund. Thank 
you for giving me the opportunity to appear before your 
committee, Mr. Chairman, and I am available for questions.
    [The prepared statement of Hon. Robert Garvin follows:]

   Prepared Statement of Robert Garvin, Commissioner, Public Service 
                        Commission of Wisconsin

    My name is Robert Garvin. I am a commissioner at the Public Service 
Commission of Wisconsin (PSCW). I have served in that capacity for four 
years. I also serve as the Chairman of the Subcommittee on Nuclear 
Issues and Waste Disposal of the Electricity Committee of the National 
Association of Regulatory Utility Commissioners (NARUC). As Chairman of 
the NARUC Subcommittee that focuses directly on the issues that are the 
subject of today's hearing, I am testifying today on behalf of that 
organization. In addition, my testimony reflects the views of the PSCW. 
On behalf of NARUC and the PSCW, I very much appreciate the opportunity 
to appear before you this morning. The issues that you are addressing 
in this oversight 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 progress of the Yucca Mountain project.
    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. 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 $24 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.
    The process of attempting to open a geologic repository for the 
storage of high-level radioactive waste, including spent nuclear fuel, 
has been a protracted one. As you know, the Nuclear Waste Policy Act 
contemplated that the proposed repository would begin to accept waste 
in 1998. Instead, over six years later, the Department of Energy (DOE) 
is still engaged in the process of attempting to license, construct, 
and open the proposed repository. In the meantime, the customers of the 
nation's nuclear facilities continue to pay the required one mill per 
kilowatt hour fee that is intended to finance the proposed repository 
while, at the same time, continuing to bear the cost of on-site waste 
storage as well. The nation's debt to these customers is long past due. 
Moreover, the Administration indicated in its FY 2003 budget request 
that it will cost $500 million annually to manage government high-level 
radioactive waste at Department of Energy sites in the event that waste 
acceptance at the proposed Yucca Mountain facility is delayed past the 
previously scheduled 2010 opening date.
    Finally, the federal courts have decided that the Department of 
Energy has breached its statutory and contractual obligation to take 
spent nuclear fuel by the date specified in the Nuclear Waste Policy 
Act, thereby subjecting the nation's taxpayers to significant damage 
liabilities that have yet to be quantified and that will continue to 
increase with the passage of time. In evaluating the potential impact 
of these liabilities on the federal budget, it is important to remember 
that the United States Court of Appeals for the Eleventh Circuit has 
determined that monies from the Nuclear Waste Fund may not be used to 
pay any damages ultimately awarded to the nuclear industry for breach 
of the Department of Energy's obligation to take nuclear waste 
beginning in 1998.
    While there is no agreed-upon estimate of the government's 
liability for the added storage costs for commercial spent fuel that 
will result from further delay in waste acceptance at Yucca Mountain. 
Nonetheless, we can safely assume that the cost of delay relating to 
commercial spent nuclear fuel is several times the cost of delay 
identified for government material since there is nine times more 
commercial waste than governmental waste. These factors make it even 
more imperative to prevent further delay in opening the Yucca Mountain 
facility.
    The decision by the President and Congress to proceed with the 
development of the Yucca Mountain facility in 2002 was gratifying to 
NARUC and its members. The recommendation of the Yucca Mountain site by 
Secretary Abraham, the President's decision to concur in the 
Secretary's recommendation, and the Congress' decision to override 
Governor Guinn's veto brought much needed attention to the nuclear 
waste disposal issue. Despite this attention to these issues, the 
passage of the Congressional resolution reaffirming the federal 
government's commitment to the development of the Yucca Mountain 
facility does not end the need for Congressional supervision of and 
commitment to this program.
    In other words, the adoption of the 2002 Congressional resolution 
should certainly not lead to complacency on the part of any branch of 
the federal government. The timely opening of the Yucca Mountain 
facility is not, as this committee well knows, a fait accompli. 
Although there is some current uncertainty over the date for the 
submission of the repository license application, given the necessity 
for Environmental Protection Agency to revise its radiation protection 
rule for the repository to comply with a court decision announced last 
summer, the Department of Energy has expressed its intention to submit 
the license application by the end of this year. Frankly, from NARUC's 
perspective, the biggest obstacle to the beginning of waste acceptance 
at the proposed repository in accordance with the Department of 
Energy's current schedule is the risk of inadequate funding during the 
next few years.
    As a result, NARUC believes that it is vitally important for 
Congress to take certain specific steps on an expedited basis to ensure 
that the Yucca Mountain facility opens without additional delay. Most 
importantly, Congress should make adequate funds available for the 
licensing, construction, and operation of the proposed facility. Unless 
adequate money is appropriated for the Yucca Mountain project, the 
proposed facility will not open in accordance with any schedule that is 
ultimately adopted. This will result in increased costs to the federal 
government, the nuclear industry, and the customers of the nation's 
nuclear generators. Therefore, I repeat, the most important issue for 
Congress to address in connection with the nuclear waste program at 
this time is ensuring that adequate monies are appropriated for the 
Yucca Mountain project.
    The history of funding for the Yucca Mountain program is and has 
been a source of concern to NARUC and its members. Over the past 
decade, fee revenue has continued to flow into the Nuclear Waste Fund 
at an ever-increasing level, a pattern that reflects improving nuclear 
industry productivity. Earnings on the balance in the Nuclear Waste 
Fund have grown to the point where they have exceeded fee revenue in 
most years. In the face of this increase in the amount of available 
resources, annual appropriations have consistently been reduced from 
the amount requested by the present and past Administrations throughout 
the last decade.
    Although over $24 billion dollars has been collected for the 
Nuclear Waste Fund from ratepayers to date, only about $7 billion has 
been expended from the fund to support the repository program. This 
reduces the likelihood that important milestones associated with the 
repository program will be met, the most important of which is the date 
upon which nuclear waste begins moving to the repository for storage. 
Furthermore, spent nuclear fuel continues to accumulate in 72 locations 
that were never intended to be indefinite storage facilities. Despite 
the Nuclear Regulatory Commission's and the nuclear industry's 
confidence that the present practice of storing spent fuel at reactor 
sites is safe, NARUC agrees with former Secretary Abraham that 
permanent storage of nuclear waste at the Yucca Mountain repository 
would be more secure than on-site storage. NARUC also agrees with 
former Secretary Abraham that the prospect of further delay in opening 
the Yucca Mountain facility raises a serious homeland security issue.
    The history of the budget process relating to the Civilian 
Radioactive Waste Management program suggests that there is a risk that 
past funding problems will continue in the future. The budget struggles 
for this program over the past several years have resulted in hundreds 
of millions of dollars in cumulative budget reductions. Further, each 
year that the program operates under a continuing resolution the DOE 
program managers are hesitant to make spending plans and commitments in 
the beginning of those years. Last year, because the Administration 
assumed that budget reclassification legislation would be enacted in 
the same year it was proposed, it requested ``zero'' appropriations 
from the Nuclear Waste Fund for FY 2006, resulting in the House 
Appropriations Committee proposing only $131 million from the Defense 
Nuclear Waste Fund as the total appropriation for that year. Except for 
the Senate's failure to mark up the Energy and Water Appropriation bill 
and the enactment of a continuing resolution funding the nuclear waste 
program at the $577 million amount approved for the previous year, the 
repository program might have faced fiscal calamity.
    These funding difficulties need not persist. There is an obvious 
solution to the funding problem. The government can sustain the 
required level of spending for the repository program by using the very 
funding mechanism contemplated in the Nuclear Waste Policy Act. The $16 
billion balance in the Nuclear Waste Fund, which continues to grow 
every year, provides more than enough money to permit the Department of 
Energy to maintain the current schedule, assuming that these monies are 
actually made available for use in the program. The real problem lies 
in developing an approach to funding the Yucca Mountain program that 
ensures that the monies paid in to the Nuclear Waste Fund by the 
nation's electric ratepayers are actually devoted to the purposes for 
which that fund was created. The best way to achieve that result is for 
Congress to reform the process by which monies from the Nuclear Waste 
Fund are appropriated for repository program activities.
    As we understand it, the existing budget rules applicable to the 
Yucca Mountain program make no distinction between monies appropriated 
from the Nuclear Waste Fund and other general funds available to the 
Department of Energy as a whole. As a result, any increase in the 
amount appropriated for the program from the Nuclear Waste Fund 
currently must be offset by decreases in expenditures for other 
Department of Energy programs despite the fact that the nuclear waste 
program is the only Department of Energy program that can be lawfully 
appropriately paid for from the Nuclear Waste Fund. Although the 
existence of such a limitation might constitute sound budgetary policy 
in the event that all Department of Energy programs were supported 
through general appropriations, such a limitation seems overly 
restrictive given the Nuclear Waste Fund's status as a special fund 
containing monies contributed by a specific group of Americans for use 
in a particular way. As a result, NARUC believes that the key to timely 
completion of the Yucca Mountain project is for Congress to reform the 
process by which the monies from the Nuclear Waste Fund are made 
available for use in connection with the repository program.
    The manner in which the mechanics of the appropriations process 
operate is, of course, a matter committed to the sound judgment of 
Congress and not to an association of State regulators. There are 
probably a number of acceptable ways for the current problem to be 
resolved, ranging from modification of the existing budget rules to 
making the needed reforms to the Nuclear Waste Fund. At this point, we 
are willing to support a range of alternative methods for reforming the 
appropriations process as long as the imbalance between the amount of 
revenue entering the Nuclear Waste Fund and the amount of monies 
actually expended from the fund in support of the repository program 
ends.
    Any reform, however structured, should ensure that future annual 
appropriations are limited by the needs of the program rather than the 
amount appropriated in the past, particularly given that past 
appropriations were barely adequate for the study period and are 
totally inadequate for the licensing, construction, and waste 
transportation phases that lie ahead. There is no question about the 
appropriateness of measures to assure that monies from the Nuclear 
Waste Fund are spent wisely. Those measures, however, should not thwart 
the entire purpose of the Yucca Mountain program. Assuming that 
Congress believes that it should cap expenditures from the Nuclear 
Waste Fund for budget oversight reasons, such expenditures should only 
be capped at the sum of fee revenues and earnings on the balance of the 
fund received in a particular year.
    As we understand it, expected program needs, even in peak years, 
should not exceed the total that would be available under the 
application of such a formula. The Department of Energy projects that 
$1.5 billion will be added to the Nuclear Waste Fund each year during 
the remainder of this decade and that the Department of Defense budget 
will provide additional appropriations each year toward the repository 
program. For these reasons, there is no question that the amount of 
money flowing into the Nuclear Waste Fund, coupled with adequate 
support from the Department of Defense budget, will suffice to pay for 
needed work on the Yucca Mountain program over the next several years 
as we near initial repository operations.
    Any reform proposal should also provide that increased expenditures 
from the Nuclear Waste Fund for support of the repository program would 
not necessarily result in the reduction of other Department of Energy 
expenditures. That is because the funds used to support those other 
programs come from a different source that is not directly tied to the 
programs in question. A failure to reform the process by which monies 
from the Nuclear Waste Fund are appropriated for use in the repository 
program will condemn the Yucca Mountain program to additional years of 
fiscal uncertainty and undermine the progress made by the 2002 decision 
to approve the Administration's recommendation that the program go 
forward.
    NARUC was encouraged by the action taken by this subcommittee and 
the Energy and Commerce Committee in developing and approving H.R. 3981 
during the last Congress. Unfortunately, that bill was not taken to the 
floor nor acted upon in the Senate. Nonetheless, the idea of reform was 
advanced and we are encouraged that the effort could be renewed this 
year. We were gratified by Chairman Barton's announcement last month 
that he intended to introduce similar legislation again this year. At 
its Winter Committee Meetings held nearly a month ago, NARUC adopted a 
resolution, a copy of which is attached to this testimony. This 
resolution urges enactment of legislation that has the effect of 
reforming the budgetary process in order to ensure the timely 
availability of sufficient funds to enable initial waste acceptance at 
the repository in 2010 or whatever revised date DOE is currently 
considers appropriate for initial waste acceptance.
    The larger question of future access to the so-called ``balance'' 
in the Nuclear Waste Fund is certainly important, but it is not as time 
sensitive as fixing the annual appropriations process. We also suspect 
that tapping into that $16 billion balance will pose some difficulty 
for Congress because that money has already been used for other 
purposes so that the existing $16 billion fund balance is an ``I.O.U.'' 
that a future Congress will have to honor with dollars that can 
actually be spent. We hope that our suspicions are unfounded and would 
welcome an explanation that alleviates our concern.
    We are equally uneasy about the ``investment returns'' that are 
credited to the Fund. The investment return for FY 2004 totaled $1.3 
billion, almost double the $732 million in fees collected from 
utilities during the same period. It is frustrating to see abundant 
resources reported as reserved for the nuclear waste program, while 
also seeing annual appropriations that are consistently less than the 
amount requested in the Budget because of the absence of sufficient 
funds for the year. While NARUC would like nothing more than to be 
assured that the Nuclear Waste Fund can be managed exactly as the 
Nuclear Waste Policy Act envisioned, it is our sense that coupling such 
a revision in the relevant appropriations rules with legislation 
similar to H.R. 3981, which has a near-term horizon through 2010, could 
put enactment of the more immediate reform at risk by trying to do too 
much at once, even though we would be delighted if it could be done. In 
other words, NARUC's highest priority is a practical near-term solution 
to the most pressing problem faced by the nuclear waste program.
    The nuclear waste program is of immense national importance. Having 
overcome the political hurdle inherent in the vote on the joint 
resolution in 2002 to move forward with the Yucca Mountain process, the 
Congress should focus on ensuring that the means to complete the 
process of licensing, constructing, and operating the repository are 
made available to the Department of Energy. Nuclear energy is an 
inevitable component of both our country's energy present and its 
energy future. Congress recognized that fact when it enacted the 
Nuclear Waste Policy Act two decades ago. Congress reaffirmed that 
determination when it voted to proceed with the repository program in 
2002. The nation needs to move forward to assure the availability of a 
safe, permanent nuclear waste disposal site for future generations 
without further delay.
    The nation's electric ratepayers have been paying for a nuclear 
waste repository for over twenty years. It is past time for the 
ratepayers to get what they have paid for. The best way for Congress to 
assure that this result occurs is to reform the process of funding the 
repository program so that monies from the Nuclear Waste Fund are more 
readily available for use connection with the Yucca Mountain facility. 
We urge this committee and other relevant committees to make reforming 
the use of the Nuclear Waste Fund a priority in this Congress, to 
identify a way to provide stable financing for the program using the 
ample revenue stream that is available for the purpose, and to enact 
any legislation necessary to implement that decision.
    Thank you for this opportunity to testify. I look forward to your 
questions.
                                 ______
                                 
         Resolution Supporting Reform of the Nuclear Waste Fund

    WHEREAS, In 1982 the Nuclear Waste Policy Act established policy 
that the Federal government is responsible for safe, permanent disposal 
of all high-level radioactive waste, including spent nuclear fuel from 
commercial power reactors; and
    WHEREAS, Since 1983 ratepayers in States using nuclear-generated 
electricity have paid over $23 billion in fees and interest, via their 
electric utility bills, to the Nuclear Waste Fund (NWF) in the U.S. 
Treasury in what was to have been a self-financed waste disposal 
program; and
    WHEREAS, Congress historically has only appropriated a small 
fraction of the amount of revenue going into the NWF to develop the 
waste repository--resulting in a balance in the Fund, now over $16 
billion, which must be available to meet future disposal program needs; 
and
    WHEREAS, the Department of Energy, as recently as 2004, estimated 
annual appropriations will need to average $1.3 billion from 2005-2010 
to enable construction, waste package procurement and transportation to 
meet the goal of initial waste acceptance in 2010--12 years past the 
date set in 1982; and
    WHEREAS, Previous attempts to address the gap between NWF revenue 
and annual appropriations have been either embroiled in nuclear waste 
politics or faced other insurmountable obstacles; and
    WHEREAS, the National Commission on Energy Policy, in its 2004 
report Ending the Energy Stalemate in its policy recommendations for 
nuclear energy, says the ``Administration and Congress should act 
immediately to reform the budget treatment of the Nuclear Waste Fund;'' 
now therefore be it
    RESOLVED, That the Board of Directors of the National Association 
of Regulatory Utility Commissioners (NARUC), convened at its February 
2005 Winter Meetings in Washington, D.C., urges that the Department of 
Energy again propose legislation to reclassify fees paid by utilities 
to the Nuclear Waste Fund as discretionary offsetting collections equal 
to the annual appropriations from the Fund or by other means that 
achieves the result of having appropriations match Fund revenue, and be 
it further
    RESOLVED, That NARUC urges the 109th Congress enact legislation 
this year that would enable total fee payments into the Nuclear Waste 
Fund to be fully available as annual appropriations to finance the 
civilian radioactive waste management program funding needs each year, 
with any shortfall made up from the Defense budget, or the existing 
balance in the Fund.
------
Sponsored by the Committee on Electricity
Adopted by the NARUC Board of Directors February 16, 2005

    Mr. Shimkus [presiding]. Great. Thank you.
    Now, we would like to recognize Mr. Theodore J. Garrish, 
Deputy Director, Office of Strategy and Program Development, 
Office of Civilian Radioactive Waste Management, Department of 
Energy. Welcome, sir. Your full statement is in the record, and 
you have 5 minutes to summarize.

                STATEMENT OF THEODORE J. GARRISH

    Mr. Garrish. Mr. Chairman, member of the subcommittee, I 
appreciate the opportunity to testify today on the need for a 
stable and efficient long-term funding for the program, to 
implement our Nation's radioactive waste management policy. I 
appreciate especially the subcommittee's recognition of 
importance of this problem in program and the tremendous 
support you have provided for us in the past.
    As you know, the mission of the program is to safely 
dispose of spend nuclear fuel and high-level radioactive waste 
resulting from the Nation's commercial nuclear energy industry 
and atomic defense activities, and it is vital to our national 
interest. Some people believe that the department's ability to 
fulfill its mission is in question, and they would suggest that 
the program is unable to move forward. I would like to take 
this opportunity, if I could, to tell the subcommittee that the 
program is well situated and has never been in a better 
position to do its job. Today, we are in excellent shape for 
the future and are moving ahead step by step toward development 
of a repository at Yucca Mountain.
    Let me tell you why I am optimistic about the program. 
First, we have an approved site for the repository. The Court 
of Appeals affirmed the actions taken by the administration to 
select Yucca Mountain, and we do have site for the first time. 
Second, we have a draft of the entire license application, 
nearly 5,000 pages, which is being refined and will be ready to 
submit to the NRC by the end of this year. Third, the 
transportation program in Nevada and throughout the country is 
moving forward in earnest. The EIS is well underway, and the 
date for completion is in site. And finally, the administration 
continues its strong support of this program as we move 
forward.
    We are making progress on this vital mission, but let me 
say that the current challenge is not so much technical as it 
is financial. There is sufficient money in the Nuclear Waste 
Fund, but the question is whether or not we will have access to 
the fund when we need it. The essence of this problem is 
simple. We had a deal between ratepayers and the Department of 
Energy--they paid the fee for us to take the waste. And the 
concept was that this was supposed to be self-financing. The 
ratepayers have paid $22 billion thus far, and there is $16 
billion in the fund; but access to the fund is limited because 
of the budget process. We must compete for funds against other 
DOE programs, even if the money is in the fund. The conclusion 
is that we will never get the job done at the historical 
appropriation levels.
    Thus, the subject today is how to overcome this dilemma. 
You ask a number of questions in your letter of invitation. You 
ask about the funding profile, the administration's 
recommendation, the challenges facing the program, and the 
potential liabilities. Let me cover each of those for you.
    First is the 10-year funding profile. The 10-year funding 
profile is attached to my testimony, and as you can see, the 
estimate in 2004 was between $9 and $10.5 billion to have the 
repository operating. As you are aware, the Department is 
reevaluating the program's out-year schedule due to the court 
decision regarding EPA and the lack of funding legislation. 
However, I am providing these two 10-year funding profiles that 
are illustrative of preliminary planning estimates. These 
profiles are based on a number of assumptions and must be 
viewed as tools for discussion rather than as project 
timetables.
    One scenario has a 2012 start date. The other assumes a 
2015 start date. Both profiles depict several years, during 
construction, where funding requirements will exceed $1.5 
billion. These higher dollars funding levels are 2 or 3 times 
the annual funding the program has historically received. Over 
the last 10 years, appropriations have ranged between $315 
million and $577 million. This contrast between historic 
funding levels and the substantially higher levels that would 
be needed for construction brings home the point that something 
must be done to ensure that we will receive appropriations 
above historic levels. The provisions for funding and fee 
collection in the Nuclear Waste Policy Act were intended to 
ensure that adequate funds were available when needed. This 
approach worked until 1991, when the budgetary laws were 
changed to the current situation, where receipts are included 
on the mandatory side of the budget and appropriations are on 
the discretionary side. As a result, instead of having full 
access to the Fund, the Nuclear Waste Office must compete 
against other DOE priorities to receive adequate funds. That is 
a critical issue which must be solved. Originally, the Nuclear 
Waste Fund was conceived to be self-financing and the funds 
available. Both the Congress and the administration have been 
aware of this problem for a number of years and have expressed 
the need for funding reform to solve the problem.
    Your second question was the administration's 
recommendation for a solution. We believe that a solution that 
would satisfy this problem is one that would support 
reclassification of fees paid by ratepayers and deposited by 
utilities into the Nuclear Waste Fund, making them 
discretionary fees, and allowing them to be used as offsetting 
collections. This allows their use to offset the increased 
appropriations needed. This approach has been recommended 
several times in the past, and we believe it is a viable 
solution.
    I appreciate your recognition of this problem. In past 
sessions, you have been very supportive in solving the issue in 
similar ways, and Congressman Shimkus has a bill to that effect 
in the last Congress.
    The third question you asked is what are the consequences 
if we don't act? And I think this is really the important 
question that I would like to emphasize. You asked for me to 
describe the challenges that funding shortfalls would impose on 
the repository program in coming years. My answer is as 
follows: without full access to the Nuclear Waste Fund, either 
through appropriations or reclassification, I believe the 
program can complete the license process and continue as it has 
in the past, but we will not have sufficient funds to construct 
the repository, nor will we be able to construct the Nevada 
railroad, nor acquire the equipment to transport the materials 
to the facility in a timely fashion. Nuclear waste will remain 
at sites near communities and water supplies around the 
country, and we will not have finished the job of cleaning up 
the cold war legacy. Therefore, we have reached a crossroad. We 
have made substantial investment in a repository, to date, and 
we have positive results, and now we must finish the job.
    While the fee income continues to flow into the Nuclear 
Waste Fund, there is a continuing expectation and obligation 
that we will use this money to finish the job and dispose of 
waste in manner directed by the Congress in the Nuclear Waste 
Policy Act.
    Your last question, you ask what are the liabilities if we 
fail to act? I believe that a number of witnesses have already 
testified, and you have seen the numbers, that the estimate is 
between--$2 and $3 billion total liabilities through 2010, and 
the rate now for liability will be approximately $500 million 
per year for the utility lawsuits. About 60 are pending 
currently.
    Before I conclude my remarks, I would just like to address 
one other issue. Many people have been concerned in the past 
over the corpus of the Nuclear Waste Fund and whether that 
corpus will be available when it is needed. I know there is 
significant concern over this issue; however, I believe that 
the Nuclear Waste Fund is adequately protected by the 
provisions of the Nuclear Waste Policy Act and the cases 
related thereto. Section 302(D) of the Act states that 
expenditures from the Fund can only be used as stated in the 
Act. A 2002 court case, Alabama Power v. DOE, affirmed that the 
Nuclear Waste Fund can only be used for these purposes. In my 
judgment, both the law and the Alabama Case provide protection 
for the fund's future use, and the corpus can only be used for 
the purposes enumerated in the Act.
    I conclude with one important thought: the utility 
ratepayers have paid the government for disposal services 
agreed upon in their contracts with the government. There is a 
balance of $16 billion in the U.S. Treasury of ratepayer fees 
paid with interest and $750 million per year coming into the 
fund. Failure to provide a stable mechanism for access to these 
funds is inconsistent with the intent of the Act and 20 years 
of public policy on this issue. The estimates of billions of 
dollars that taxpayers will pay in damages should compel a 
solution. The administration is prepared to work with the 
Congress on coming up with an appropriate way to deal with this 
problem, and I thank you for your interest in this vital 
program and look forward to your questions. Thank you.
    [The prepared statement of Theodore J. Garrish follows:]

 Prepared Statement of Theodore J. Garrish, Deputy Director, Office of 
    Civilian Radioactive Waste Management, U.S. Department of Energy

    Mr. Chairman and members of the Committee, I am Ted Garrish, Deputy 
Director of the Department of Energy's (DOE) Office of Civilian 
Radioactive Waste Management (OCRWM). I appreciate the opportunity to 
testify about the need for stable and sufficient long term funding for 
the Department of Energy's program to implement our Nation's 
radioactive waste management policy, as established by the Nuclear 
Waste Policy Act of 1982, as amended.
    The mission of the Program--to safely dispose of spent nuclear fuel 
and high-level radioactive waste resulting from the Nation's commercial 
nuclear power and atomic energy defense activities--is vital to our 
national interest. The success of the program is necessary to protect 
public health and safety and the environment, to maintain our energy 
options and national security, to allow the cleanup of former weapons 
production sites, to continue operation of our nuclear powered naval 
vessels, and to advance our international non-proliferation goals. The 
implementation of the Nation's radioactive waste management policy will 
consolidate spent nuclear fuel and high-level waste from 125 sites in 
39 states at a single secure, remote location in an arid desert, far 
from cities, schools and water supplies.
    The Administration and Congress recognized these important national 
benefits and supported the Department's geologic repository program 
when the Congress voted to pass the joint resolution approving the 
Yucca Mountain site for a repository and the President signed that 
resolution into law in 2002. With the site approval, the program's 
focus shifted from scientific study to the design, licensing and 
construction of a repository. As you are aware, to accomplish these 
objectives substantial funding is necessary.
    I am here today to discuss your concerns regarding the long-term 
financial viability of the program. Specifically you requested I 
discuss 1) the funding profile for the repository program for the next 
ten years; 2) the need for reforming the Nuclear Waste Fund to ensure 
proper availability of funds to support the project; 3) the challenges 
facing the repository program due to funding shortfalls; and 4) the 
potential liability facing the federal government due to pending 
lawsuits.
             the funding profile \1\ for the next ten years
---------------------------------------------------------------------------
    \1\ These ``Total Program'' funding profiles are for illustrative 
purposes assuming a 2012 or 2015 date for the start of repository 
operations and are based on several critical assumptions, such as, 
Total Program funding, the EPA radiation protection standard is in-
place by December 2005, and the start of construction of various non-
nuclear items, such as the Nevada rail line before receipt of NRC 
construction authorization. Many of these policy decisions have not yet 
been made and as such these profiles do not represent any decisions 
regarding Administration policy.
---------------------------------------------------------------------------
    The Department's 2004 estimate for the total amount of funds that 
are needed for the program from Fiscal Year 2005 through the opening of 
the repository was between $9 and $10.5 billion. As you are aware, the 
Department is re-evaluating the program's out-year schedule due to the 
Court's decision regarding the EPA standard and the lack of funding 
legislation. As you requested, I am providing ten-year funding profiles 
that are only preliminary planning estimates, subject to revision. 
These estimates do not represent final policy decisions that have yet 
to be made by the Administration. It should be noted that, if stable 
and adequate funding is not provided each year, the program's schedule 
and costs will be significantly impacted. Attached to this testimony 
are charts of the program's preliminary estimated ten-year funding 
profiles for both 2012 and 2015 assumed start dates for repository 
operations.

  RECOMMENDATION FOR REFORMING THE NUCLEAR WASTE FUND TO ENSURE FUNDS

    To meet the demand for increased funding the Administration has 
recommended alternative funding proposals for the Program in the last 
three Presidential Budgets and supports legislation to enact a proposal 
to reclassify receipts to the Nuclear Waste Fund as discretionary 
offsetting collections. The Administration remains committed to 
pursuing an alternative funding mechanism for the repository program 
and I hope further discussions on the issues raised today can result in 
progress on this important and necessary measure.

The Nuclear Waste Funding Problem
    Since 1983, a quarterly fee has been and continues to be paid by 
utilities who produce nuclear electricity to fund the development of a 
repository for disposal of their spent nuclear fuel. According to 
Section 302(d) of the Nuclear Waste Policy Act, the money is to be 
collected for one purpose and one purpose only--performance of 
``nuclear wastedisposal activities'' through the development and 
operation of a repository. In actuality, much of the fees collected to 
date sit unused in the Nuclear Waste Fund. The current procedure used 
to score Nuclear Waste Fund revenues does not encourage the 
appropriation of the full amount of the fees received annually because 
the receipts do not directly offset the appropriation for the 
repository program.
    The Department has entered into legally binding contractual 
agreements mandated by Congress in the Nuclear Waste Policy Act with 
the nuclear utilities to accept their spent nuclear fuel on a specific 
schedule. The Department is legislatively required to begin accepting 
the spent fuel for disposal beginning by January 31, 1998, and these 
contracts with the utilities reflect that schedule in exchange for 
utilities' payment of the fee. The fact that fees are a quid pro quo 
payment in advance for a contractually required service to be performed 
by the federal government--a legal obligation affirmed by the federal 
courts--sets it apart from most other federal user charges and taxes 
and justifies special consideration in the budget process.
    The fees are deposited into the Nuclear Waste Fund and intended to 
be used to pay the full cost of developing and operating the facilities 
needed to meet the federal government's commitment to conduct nuclear 
waste disposal activities mandated by the Nuclear Waste Policy Act. The 
Nuclear Waste Fund was established to ensure that the Department of 
Energy's commercial spent fuel disposal program would have the funds it 
needed, as it needed them, to get the job done, and also to ensure that 
the federal taxpayer did not pay for this waste disposal program.
    The utilities and their ratepayers have been keeping their part of 
the bargain since 1983. Unfortunately, the federal appropriations 
process is increasingly constraining the ability of the federal 
government to do its share. Because the fee revenues are classified as 
mandatory receipts under budget control legislation, they are treated 
just like general tax revenues and deposited into the federal treasury, 
resulting in no incentive for the Congress to use the full amount of 
annual receipts. As far as the millions of utility ratepayers are 
concerned, the fee appears to be just one more federal tax rather than 
a payment to ensure the delivery of a contracted service.
    Over the last ten years, ratepayers of nuclear utilities have 
averaged annual payments into the Fund of about $636 million, while 
annual appropriations from the Fund have averaged $198 million. The 
total unspent balance in the Fund with interest is over $16 billion. 
Until recently, the repository program's requirements were 
substantially below the annual fee revenues. However, that situation is 
changing. Beginning in FY 2007, program requirements are projected to 
equal or exceed projected income from the fee. To ensure that the waste 
fee revenues are fully available for their contractually required 
purpose, a new approach is necessary.

Administration Position
    The program needs stable and sufficient long term funding to 
implement our Nation's radioactive waste management policy. The 
Administration believes that the fees currently paid by utilities to 
finance the repository should be treated as offsetting collections 
against the appropriation from the Nuclear Waste Fund. The amount 
credited as offsetting collections should not exceed the amount 
appropriated for the repository.
    This approach would allow Nuclear Waste Fund revenues received from 
utility contract holders in a given year, up to the amount appropriated 
for that year's nuclear waste disposal activities, to be reclassified 
from mandatory receipts to discretionary collections and available to 
directly offset appropriations from the Nuclear Waste Fund. The amount 
credited as offsetting collections would be subject to appropriations 
made in an Appropriation Act. Appropriations up to the amount of 
receipts could be provided without reducing the funding available for 
other federal programs.This approach outlined in the 2005 Budget to 
allow fee revenues to be reclassified from mandatory receipts to 
discretionary collections is not new or unique. In fact, the trend in 
the federal budget has been to offset against outlays in many areas. 
Many other federal activities that generate user charges are treated 
this way already. A few examples are the Nuclear Regulatory Commission, 
and the Department of Energy's major power marketing activities. This 
change would simply be a technical correction that would bring the 
funding of the radioactive waste program into line with other practices 
in the federal budgeting process. It is particularly appropriate that 
revenues from the Nuclear Waste Fund be made available as needed 
because, as stated previously, it is one of the few cases in which the 
federal government is, by law, contractually obligated to performthe 
service for which the fee is being paid.
    Reclassification of the fees does not reduce Congressional control 
of the program's budget in any way. The Administration will still need 
to request and the Congress will still have to appropriate the funds, 
as required by the Nuclear Waste Policy Act.
    Questions have been raised as to whether the Office of Management 
and Budget has authority to reclassify the fees through administrative 
action. It is my understanding that, if the Administration were to 
unilaterally reclassify the fees through administrative action, it 
would be a departure from past practice but does not appear to be 
prohibited by law. Nonetheless, if the Administration were to 
reclassify the fees unilaterally, it is my understanding that the 
Budget Committees and the Congressional Budget Office would have to 
make the same change. Absent the Budget Committees' concurrence with 
such an administrative action, the administrative fee reclassification 
would not be reflected in congressional scoring of appropriations 
actions.
    I believe a new approach would help assure stable and sufficient 
funding so the program to can build and operate a repository for the 
Nation.

   CHALLENGES FACING THE REPOSITORY PROGRAM DUE TO FUNDING SHORTFALLS

    Without a change to the funding mechanism, program funding 
shortfalls are likely. Such shortfalls, in turn, will cause significant 
delays in repository construction and eventual operations, will limit 
progress, and will threaten the very existence of the repository.
    Everyone loses if this funding problem is not solved. Since 1995 
both the Administration and Congress have been aware of the constraints 
the budget process imposes on the Nuclear Waste Fund. Both Branches 
have expressed the need for funding reform.
    If a change is not made, the government will be forced to spend 
billions of additional dollars in added liability costs without solving 
the waste problem, since the repository will be extremely difficult to 
open in any near-term timeframe. Nuclear waste will remain at sites 
near communities and water supplies throughout the country, and we will 
not have finished the job of cleaning up the Cold War legacy at defense 
sites.

              POTENTIAL LIABILITY DUE TO PENDING LAWSUITS

    The government's need for a funding change for the repository 
program, unlike many other Federal programs, is driven by the highly 
unusual contractual arrangement required by the Nuclear Waste Policy 
Act. Whenever the Federal government, pursuant to an explicit statutory 
requirement, makes a legally binding contractual commitment to perform 
a well-defined service in exchange for payments that cover the costs of 
that service, it should treat those payments in a way that ensures that 
they are used for the statutorily-specified contracted purpose.
    The Federal government is contractually obligated to perform the 
service for which Nuclear Waste Fund fees are paid. About 60 lawsuits 
are pending in the U.S. Court of Federal Claims for damages for failure 
of the government in 1998 to meet that obligation. The Court of Appeals 
has already established liability in some of the cases. The passage of 
legislation to help assure adequate funding for the waste program would 
send a strong signal to the ratepayers and utilities that the Federal 
government is indeed serious about meeting its obligations.
    The Department has estimated that the damages due commercial 
utilities for the Department's delay in accepting waste in 1998 could 
be approximately $2-$3 billion, if the Department began operations in 
2010. Without funding legislation and a decision on the EPA standard, 
each year of delay after 2010 could cost the government an additional 
$500 million in damages.
    Some argue that because of federal budget constraints, now is not 
the time to increase appropriations for the waste program, much less to 
make changes in the budgetary treatment of the waste fee. If past 
decisions are any guide, federal courts are not likely to accept 
funding limitations as an excuse for failure to meet contractual 
obligations.

                         STATUS OF THE PROGRAM

    Now, let me focus on current program activities. Recently, there 
have been comments that the Program has serious problems. On the 
contrary, the Program is well situated for the future. We are moving 
ahead deliberately, step-by-step, toward development of a geologic 
repository at Yucca Mountain. Here are some of the reasons why this 
Program is poised for success:

 We have an approved site for the geologic repository. Congress 
        approved the Yucca Mountain site in Nye County, Nevada for 
        development as a repository in 2002. Lawsuits have affirmed the 
        constitutionality of the process; therefore, we have a location 
        for the development of a repository site.
 We have a draft of the entire license application in the process of 
        refinement. We are making improvements to the analysis and 
        presentation of information, with the objective of completing 
        preparation of a high quality license application by the end of 
        this calendar year.
 Transportation activities have begun in earnest. We issued Records of 
        Decision for both transportation mode and the rail line 
        corridor through Nevada. We are currently preparing an 
        Environmental Impact Statement for the specific rail alignment 
        within that corridor. Institutional activities to include the 
        States as partners have also begun.
 We are requesting the full funding amount necessary to complete those 
        tasks we can reasonably accomplish in FY 2006. The Department 
        will continue to request annual funding appropriate to meet 
        project requirements.
 The Administration continues its strong support of the Program as we 
        move forward with its implementation.
    This program does, however, face challenges involving parties 
outside the Department that I would like to note.
    First, the U.S. Court of Appeals for the District of Columbia 
Circuit vacated the Environmental Protection Agency's Yucca Mountain 
radiation protection standard with regard to its 10,000 year regulatory 
compliance period. EPA is currently working to revise its Yucca 
Mountain radiation standard to conform to the court's direction. We 
remain optimistic that EPA's work in promulgating the standard will be 
contemporaneous with our work on the license application and that both 
will be ready by the latter part of the year.
    The second challenge is being addressed today--the need for 
sufficient and stable longterm funding for the Program. Currently, 
there is no incentive in the budget scoring process for Congress to 
appropriate the full Administration request and to use all of the 
Nuclear Waste Fund fee receipts to construct the Yucca Mountain 
repository.
    Despite these challenges, the Program is fundamentally on sound 
footing and we are poised to make significant progress in the coming 
year.
    Consistent with Departmental and Program objectives, the Yucca 
Mountain Project's main focus in FY 2005 is on improving and completing 
the license application. The required elements of design, performance 
assessment, safety analyses, and technical data in the license 
application must be sufficient for the NRC to conduct an independent 
review and reach a decision to issue a construction authorization. The 
application must demonstrate that the repository can be constructed and 
operated and that the health and safety of the public will be 
protected.

                               CONCLUSION

    We are committed to the goal of beginning to receive and transport 
spent nuclear fuel and high-level waste to an NRC-licensed repository. 
Toward that end, our objective is to complete a high-quality license 
application and have it ready to submit to the NRC in December of this 
year.
    The Administration believes that the fees currently paid to the 
government by utilities to finance the repository should be treated as 
offsetting collections against the appropriation from the Nuclear Waste 
Fund. We will continue to work within the Administration and with our 
Congressional counterparts to provide the funding needed to meet Yucca 
Mountain's programmatic requirements.
    I appreciate the efforts of the Committee to explore ways to 
properly align the Nuclear Waste fees with the expenditures for Yucca 
Mountain. We appreciate your holding this hearing to address the 
Program's need for stable and sufficient long-term funding.
    This concludes my prepared statement. I will be pleased to respond 
to any questions the Committee may have.

[GRAPHIC] [TIFF OMITTED] T9908.001

    Mr. Shimkus. Thank you for your testimony. And as a former 
high school teacher, we have got some young high school 
students back there, and it is probably an interesting--
probably a little boring. But when I taught high school, in the 
civics books was the discussion of Yucca Mountain, which would 
have been 20 years ago. And for the students out there, the 
basic premise is this: we have agreed to take high-level 
nuclear waste and put it at Yucca Mountain, underneath a 
mountain in the desert. And the question we are debating now is 
how do we pay for current construction of the facility. And it 
deals with budgets and all of these other issues, and we tried 
to address that last year--we did get derailed last year on the 
process, hence the legislation and movement, and hence this 
hearing.
    You did, at the end, Mr. Garrish, at the end of your 
statement, talk about the litigation aspects a little bit, so 
my questions kind of follows along with some of your comments 
there. In 2004, the government reached a settlement agreement 
with Exelon Corporation for $80 million in fiscal year 2005 and 
a total of $300 million to cover damages to date, resulting 
from the government's failure to meet the contractual deadline 
of January 1998 for initial fuel acceptance included in the 
Nuclear Waste Policy Act. Over 50 additional lawsuits from 
utilities to cover such damages are pending in the court. DOE 
estimates that these damages could cost approximately $500 
million per year. The industry estimates that the costs are 
closer to $1 billion per year. These costs will grow with 
further delays in the program. Is the cost of the Exelon 
settlement included in the budget? And if it is, where is it 
located?
    Mr. Garrish. No, Mr. Chairman. The cost for the Exelon 
settlement is paid for out of the Judgment Fund. Now, that is 
included, ultimately, in the budget, but it is not included in 
the same fashion that you are suggesting.
    Mr. Shimkus. Correct. Thank you. Are the potential 
additional costs associated with other suits incorporated in 
the administration's budget projections?
    Mr. Garrish. There are no projections for future 
liabilities in government projections. In other words, the 
judgment fund does not contain those projections for reasons 
related to litigation strategy.
    Mr. Shimkus. So we need to resolve this issue so that these 
litigations do not continue in the future?
    Mr. Garrish. I think that is an important point. When you 
are paying $500 million-plus for your utility litigation and 
there are increased costs in the same range related to the 
defense waste, and DOE must store those wastes or make other 
provisions you are looking at $1 billion a year in costs for 
failure to complete the job. It would seem to me that a good 
bargain at this stage would be to finish the job and do it 
right, eliminate the damages, and move forward.
    Mr. Shimkus. And I can't speak for the industries, but they 
may be less intent on pursuing their lawsuits if we are showing 
good-faith efforts in moving forward and developing the 
repository and receipt of the promised high-level nuclear 
waste.
    Mr. Garrish. Well, I have to say I think their lawyers are 
very aggressively pursuing these cases, so that may be true, 
but I am not sure that that is evident in the courts.
    Mr. Shimkus. The OMB budget estimates show that the 
interests earned on the Nuclear Waste Fund in fiscal year 2004 
was $1.3 billion. How is that income scored in the budget?
    Mr. Garrish. I am not sure it is that high, but I believe 
that it is at least $750 million.
    How is it scored? It is scored like a mandatory receipt, so 
it goes immediately into the fund. In other words, that 
treatment is exactly the same as the treatment for the fee.
    Mr. Shimkus. For the fee? For it is going--it is added to 
the fund----
    Mr. Garrish. That is correct.
    Mr. Shimkus. [continuing] whether it is $700 or $1.3 
billion.
    Mr. Garrish. Yes.
    Mr. Shimkus. If we would move on--if my numbers are correct 
or your numbers are correct, and if we moved on addressing the 
interested earned as being directed to the Yucca Mountain, that 
would obviously give us a stream of funds that would be well 
received if not--we would probably, in some instances, as your 
testimony stated, need in excess, if it is $700 million. And if 
it is $1.3, it is probably in some of the worst-case scenarios 
for dollars it needs in a year to move to recede.
    Mr. Garrish. Well, I don't believe that we have addressed 
the interest question. Thus far we have only addressed the fee 
part of the Waste Fund. That would be a matter that we would 
have to continue to examine.
    Mr. Shimkus. Well, what actions would be required from us 
or you to address those earnings on the interest earned?
    Mr. Garrish. Well, I think that the earnings have the same 
problem as the fee; in other words, it goes into the fund. We 
still have to figure out a way in the budget process to either 
classify them differently or to figure out some way to get the 
appropriations out of the fund.
    Mr. Shimkus. Great. Thank you. That is all the questions I 
have. I now turn to my colleague Mr. Boucher from Virginia.
    Mr. Boucher. Thank you very much, Mr. Chairman. Mr. 
Garrish, Mr. Garvin, thank you for your comments here today.
    Mr. Garrish, I understand that the Department of Energy 
missed its original target of December 2004 to file for a Yucca 
Mountain license with the NRC. Why did you miss the target and 
when do you intend to apply now?
    Mr. Garrish. Okay. There were two reasons for that, and the 
principal reason was that on July 9 the Court of Appeals 
vacated the EPA's radiation standard and directed the EPA to 
have it remanded and to resubmit it back through the process. 
As a result, there was no standard in place for us to judge the 
license application by.
    Now, we are in the process of completing our license 
application. The EPA is in the process of the completing of its 
promulgation of the standard, and they have indicated that they 
will have something published in draft form sometime, either 
late Spring or early Summer. The Department is anticipating 
that we will proceed with the development of our license 
application to have it ready to submit by the end of this year, 
and we are assuming that our work will be contemporaneous with 
EPA, although that is an issue that they will have to determine 
when it is appropriate to finally publish. But the principal 
reason why we did not file a license application was the remand 
of that standard. There was a second reason that is related to 
the licensing support network, which is a discovery issue. We 
have to provide to the NRC a complete set of all of the 
documentation that we will rely on, all of the documentation 
that does not support our case, and all of the scientific 
materials have to be put into an electronic form and made 
available to the public. A board of the commission determined 
that there were some archival records which we had not included 
in that collection, which required us--to be made available at 
the same time with the certification. As a result, we cannot 
file our license application until 6 months after this 
licensing support network is certified. So as a result of 
having our certification overturned, we have to complete the 
certification process; and once that is done, then we have to 
wait an additional 6 months before we are able to actually do 
our filing. We anticipate that it will be completed by this 
Summer and we will have our licensing-support network in place 
and certified.
    Mr. Boucher. And so you anticipate, now, filing the end of 
this year, so you are essentially losing a year on the process?
    Mr. Garrish. Well, we are intending to file. We will have 
our work completed.
    Mr. Boucher. All right.
    Mr. Garrish. And in other words, I think the concept is we 
want to wait for the Environmental Protection Agency to 
complete its work. We are hopeful that they will be able to do 
that.
    Mr. Boucher. Okay.
    Mr. Garrish. We will have our part of this done.
    Mr. Boucher. Okay. Thank you.
    As I perceive your testimony, you are recommending that we 
address the budget problems we are having with accessing the 
fund by administrative means, by having the Office of 
Management and Budget reclassify these fees, administratively. 
However, that is only an effective remedy assuming the 
concurrence of the Congressional Budget Office and assuming the 
concurrence of the budget committees in the House and in the 
Senate, and that is part of where we are having our current 
difficulties. So how effective do you think this remedy you are 
recommending is going to be at the end of the day? Do you have 
any reason to suggest to us that will be more effective than 
the status quo?
    Mr. Garrish. Now, Mr. Boucher, maybe I gave the wrong 
impression. I don't believe that we are suggesting that we 
would administratively reclassify. I am suggesting that a 
reclassification needs to be undertaken, and the one way that 
that can be accomplished is through legislation.
    Mr. Boucher. Are you recommending the legislation? I 
perceived you were suggesting that OMB accomplish this 
reclassification, administratively. Am I incorrect in that 
understanding?
    Mr. Garrish. Yes, sir.
    Mr. Boucher. Okay. So you are recommending legislation for 
that?
    Mr. Garrish. I believe in order to be fully effective--if 
this is done administratively, there are number of bodies that 
have to concur, or else the----
    Mr. Boucher. Understood. And so you are actually 
recommending that we accomplish this reclassification, 
legislatively?
    Mr. Garrish. Yes, sir.
    Mr. Boucher. That gives me a great deal of more confidence. 
Do you have an outline of the legislation that you would 
recommend to us?
    Mr. Garrish. Well, I believe what we supported last year 
and what was introduced and what Mr. Shimkus supported, I 
believe that we----
    Mr. Boucher. That would be the same thing?
    Mr. Garrish. The same basic ideas. We would support the 
same sorts of concepts. We would like to talk those through 
with you to see if we can get some agreement, and we could move 
something along.
    Mr. Boucher. That is very helpful. Thank you very much. 
Thank you, Mr. Chairman.
    Mr. Shimkus. Thank you. I would like to address additional 
questions to Mr. Garvin, if I may.
    In this debate--of course, Illinois being a high nuclear 
state, we don't have a Federal onsite location for high-level 
nuclear waste, which means they are located onsite. With DOE's 
schedule for Yucca Mountain slipping yet again, what reactions 
do you anticipate from public utility commissioners around the 
country?
    Mr. Garvin. Well, right now, if you are a regulator, it is 
a tough time to be in our seats because of the rising energy 
costs. And by not addressing this issue, ultimately, it is 
going to cause greater pressure on customer's bills, which is 
what our concern is.
    We have three active units in Wisconsin. One is inactive, 
like I mentioned in my testimony. But it is a major deal. These 
are large, rate-based facilities that have significant capital 
costs, and by coming up with these type of interim, dry-cast 
storage, that is just another, additional, added cost to 
service on top of the current dilemma, which is customers 
paying into this fund, but not getting any return out of it. So 
it exacerbates it.
    Mr. Shimkus. Do you know of any commissions that are 
considering withholding Nuclear Waste Fund payments and placing 
it into an escrow account?
    Mr. Garvin. Well, we discussed that at our winter meeting 
last month, here in Washington, with two lawyers who gave us 
sort of the pros and cons of that, of how aggressive you want 
to be. I think the legal answer is, first, State commissions 
are not parties to those contracts. And I think there is a 
little reluctance--and I want to speak for the industry on some 
of the operators to actually do that because they could be 
deemed in breach of their license. There is that right. And 
there is all of the other litigation consequences that go with 
there. So there is discussion. It seems like the simple thing 
to do from a practical purpose, but legally, people are a 
little gun-shy to do that.
    Mr. Shimkus. And finally, have any commissions considered 
denying recovery by utilities of costs associated with 
additional onsite storage of spent fuel as a result of DOE's 
delay?
    Mr. Garvin. Not that I am aware of. We have, just through 
regular construction authorization, authorized the construction 
of those facilities. And then once a State commission 
authorizes those type of activities, it is generally deemed as 
a prudent expenditure and will be included in the rates.
    Mr. Shimkus. Great. Thank you. Mr. Boucher, do you have any 
additional questions? Seeing no other members, I will call this 
hearing adjourned. Thank you very much.
    [Whereupon, at 3:57 p.m., the subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

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